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Pierron, J.:
The Kansas Employment Security Board of Review (Board) appeals the district court’s decision reinstating Demond Johnson’s unemployment compensation benefits. Johnson, who concurrently held a position as a computer programmer with the State of Kansas and a part-time position as a fast food worker at McDonald’s, began receiving unemployment compensation benefits after he was separated from his computer programming position with the State. The Board contends the district court erred in finding Johnson was not disqualified from receiving these benefits when he later voluntarily left his part-time position at McDonald’s. We affirm the district court’s ruling.
Johnson began employment as a computer programmer with the State in December 2006. In January 2011, while still employed by the State, Johnson began working part-time at McDonald’s. Johnson was separated from his computer programming position in September 2011 and shortly thereafter began receiving unemployment compensation benefits. Johnson continued to work at McDonald’s on a part-time basis and duly reported this work and income to the Kansas Department of Labor (KDOL).
In November 2011, Johnson asked the manager at McDonald’s to stop scheduling him until further notice. Johnson stated he had decided to go to San Diego to look for suitable work as a computer programmer but he was not sure at that time whether he would stay in San Diego or return to Kansas.
Johnson remained in San Diego and began taking evening classes in January 2012 to earn a degree and improve his computer programming credentials. At the end of January, he submitted a K-Ben 317 form for approval of school attendance to KDOL. Although the record is not entirely clear, it appears that KDOL determined Johnson’s school attendance did not disqualify him from unemployment compensation benefits.
On February 5, 2012, Johnson informed McDonald’s he would not be returning to work. He then informed KDOL that he had formally resigned from his part-time position at McDonald’s as of February 5. Johnson told KDOL that his last day of work at McDonald’s was in November 2011 and he had moved to California to look for a place to live and check out schools.
An examiner with KDOL notified Johnson he was disqualified from unemployment compensation benefits under the provisions of K.S.A. 2013 Supp. 44-706 because he left work without good cause attributable to the work or the employer. The disqualification began as of February 5, the day Johnson formally resigned from McDonald’s. Johnson stopped receiving any benefits as of February 5, although he continued to keep the necessary records and submit weekly unemployment claims.
Johnson appealed the examiner’s decision to the KDOL appeals referee. A hearing was held before the appeals referee, at which Johnson appeared as the claimant and McDonald’s appeared as the employer. The State did not appear as an employer. At the hearing, Johnson clarified he was not seeking any unemployment compensation benefits related to his job at McDonald’s. He argued he should have continued to receive benefits related to the loss of his computer programming position with the State, to which he was clearly entitled. Johnson asked to have those benefits restored, including all back payments.
The referee upheld the examiner’s decision disqualifying Johnson from benefits. The referee found Johnson had begun receiving benefits when he separated from his computer programming position and he had properly reported his McDonald’s work and income to tire KDOL. Johnson then voluntarily left his part-time position at McDonald’s. The referee found that under K.S.A. 2013 Supp. 44-706(a), Johnson’s voluntary departure from McDonald’s without good cause attributable to the work or the employer disqualified Johnson from all benefits, including those he began receiving after he was separated from his computer programming position:
“[Johnson] was eligible to draw unemployment benefits after separating from his state employment. This is despite the fact [Johnson] was still receiving some wages from his other job with McDonalds. But when [Johnson] separated from Mc-Donalds, he was at that time completely separated from employment. That separation from employment triggers a renewed look at [Johnson’s] underlying claim for benefits. [Johnson] was properly cleared for benefits following his separation from state employment. But that qualification does not last into perpetuity. Further separations from employment impact the claim.
“Unfortunately, [Johnson] left work without good cause as defined by the employment security law. Choosing to attend school may be a good personal choice on many levels, but Kansas law does not recognize it as being good cause for leaving work and still being qualified to receive unemployment benefits. The choice to obtain more education is not one of the specific exceptions enumerated [in K.S.A. 2013 Supp. 44-706(a)(l)-(12)].”
Finally, the referee found Johnson became disqualified for benefits on November 7, 2011, the day after his last actual day of work at McDonald’s, rather than on February 5, 2012, the day he gave formal notice that he would not return. The referee amended the disqualification date accordingly. Johnson appealed the referee’s decision to the Board, which affirmed the referee’s decision in its entirety.
Johnson petitioned for judicial review of the Board’s decision by the district court. The district court reversed, finding the Board had interpreted K.S.A. 2013 Supp. 44-706(a) too broadly in determining that Johnson’s voluntary departure from McDonald’s also disqualified him from receiving benefits related to his separation from his computer programming position with the State. First, the court considered that such a broad reading was out of line with the statutorily-defined public policy of Kansas Employment Security Law (KSEL). Second, the court found that Johnson’s position at McDonald’s was not suitable work for a computer programmer and therefore his decision to leave such work did not disqualify him from receiving benefits related to the loss of his position as a computer programmer.
The Board appeals the decision of the district court.
The Board first contends that under the plain language of K.S.A. 2013 Supp. 44-706(a), a claimant who leaves any work, whether or not it is the claimant’s primary employment, is subject to disqualification from any and all unemployment compensation benefits if the departure is voluntary and without good cause attributable to the work or the employer. Thus, even a claimant like Johnson who receives benefits while continuing to work a part-time or secondary job may lose tiiose benefits if he or she voluntarily leaves the secondary job.
Johnson argues that his part-time position at McDonald’s was not suitable work for his customary occupation as a computer programmer. Therefore, his voluntary departure from his part-time position at McDonald’s should not have disqualified him from the benefits he was receiving in relation to his separation from his computer programming position, especially since he left McDonald’s to improve his computer programming credentials and seek work in his customary occupation.
Under K.S.A. 2013 Supp. 44-709(i), any action of the Board is subject to review in accordance with the Kansas Judicial Review Act (KJRA), which narrows and defines the proper scope of review. See K.S.A. 2013 Supp. 77-621(c). An appellate court exercises the same statutorily-limited review of the agency’s action as the district court, as though the appeal had been made directly to the appellate court. Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010). The burden of proving the invalidity of agency action is on the party asserting invalidity. K.S.A. 2013 Supp. 77-621(a)(1).
The parties agree on all the material facts of this case — Johnson concurrently held a full-time position as a computer programmer with the State and a part-time position as a fast food worker at McDonald’s, he began receiving unemployment compensation benefits after he was separated from his computer programming position while he was still working at McDonald’s, and he later voluntarily left McDonald’s in order to pursue school and job opportunities in San Diego.
The only dispute is whether the Board correcdy interpreted the voluntary departure disqualification of K.S.A. 2013 Supp. 44-706(a) and correctly applied it to the facts of this case to find that Johnson was disqualified from any and all unemployment compensation benefits when he voluntarily left his position at McDonald’s. This is an appropriate question for judicial review. See K.S.A. 2013 Supp. 77-621(c)(4) (court may grant relief if agency erroneously interpreted or applied the law). Resolution of this issue requires the interpretation of the KESL, K.S.A. 44-701 etseq. An appellate court exercises unlimited review over questions of statutory interpretation, with no deference given to the agency’s interpretation. Powell, 290 Kan. at 567.
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). 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). Only if tire statute’s language or text is unclear or ambiguous does the court use canons of construction or legislative history to construe the legislature’s intent. Northern Natural Gas Co., 296 Kan. at 918.
K.S.A. 2013 Supp. 44-706 states in relevant part: “An individual shall be disqualified for benefits: (a) If the individual left work voluntarily without good cause attributable to the work or the employer
The ambiguity in K.S.A. 2013 Supp. 44-706(a) becomes apparent when applied to situations in which the claimant holds multiple jobs. The statute is silent as to whether the claimant’s voluntary departure from one job thereby disquálifies him dr her from ben efits related to all jobs — the interpretation favored by the Board— or whether the claimant is only thereby disqualified from benefits related to the job he or she voluntarily left. See Gilbert v. Hanlon, 214 Neb. 676, 679-80, 335 N.W.2d 548 (1983) (statute stating that a claimant “ ‘shall be disqualified for benefits. . . [f]or the week in which he or she has left work voluntarily without good cause’ ” was ambiguous in factual situations involving multiple jobs); McCarthy v. Iowa Employment Sec. Comm., 247 Iowa 760, 761, 764, 76 N.W.2d 201 (1956) (statute disqualifying individual from benefits “ ‘[if] he has left his work voluntarily without good cause’ ” was ambiguous where individual concurrently held two jobs). Since the statute is ambiguous when applied to this factual scenario, we may look beyond the statutory language to construe the legislature’s intent.
The Kansas Legislature has provided courts with specific guidance for interpreting provisions of the KESL;
“As a guide to the interpretation and application of [KESL], the public policy of this state is declared to be as follows: Economic insecurity, due to unemployment, is a serious menace to health, morals, and welfare of the people of this state. Involuntary unemployment is therefore a subject of general interest and concern which requires appropriate action by the legislature to prevent its spread and to lighten its burden which now so often falls with crushing force upon the unemployed worker and his family. . . . The legislature, therefore, declares that in its considered judgment the public good and the general welfare of the citizens of this state require die enactment of this measure ... for the compulsoiy setting aside of unemployment reserves to be used for die benefit of persons unemployed. All persons and employers are entitled to a neutral interpretation of the employment security law.” K.S.A. 2013 Supp. 44-702.
As the district court noted, tire Board’s interpretation of K.S.A. 2013 Supp. 44-706(a) to disqualify a claimant from unemployment compensation benefits related to all jobs — including those jobs tire claimant did not voluntarily leave — is at odds with the public policy to protect workers and their families from economic insecurity due to involuntary unemployment. This alone may be sufficient reason for us to reject die Board’s interpretation.
But in additipn to diese public policy considerations, the Board’s interpretation of K.S.A. 2013 Supp. 44-706(a) is also unreasonable when viewed in light of the KESL as a whole.
When construing statutes to determine legislative intent, an appellate court must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. Northern Natural Gas Co., 296 Kan. at 918. The court must construe statutes to avoid unreasonable or absurd results and presume the legislature does not intend to enact meaningless legislation. Herrell v. National Beef Packing Co., 292 Kan. 730, 745, 259 P.3d 663 (2011).
K.S.A. 2013 Supp. 44-705 sets forth the conditions under which an individual is eligible to receive unemployment compensation benefits, including the threshold requirement that the individual be “unemployed.” K.S.A. 2013 Supp. 44-703(m) defines “ [u] nemployment”:
“An individual shall be deemed ‘unemployed’ with respect to any week during which such individual performs no services and with respect to which no wages are payable to such individual, or with respect to any week of less than full-time work if the wages payable to such individual with respect to such week are less than such individual’s weeldy benefit amount.”
An individual’s weekly benefit amount is calculated under K.S.A. 2013 Supp. 44-704(b) as a percentage of the individual’s total wages for insured work over the base period of time. Finally, K.S.A. 2013 Supp. 44-704(e) sets forth the weekly benefit actually payable to eligible unemployed individuals:
“Each eligible individual who is unemployed with respect to any week... shall be paid with respect to such week a benefit in an amount equal to such individual’s determined weekly benefit amount, less that part of the wage, if any, payable to such individual with respect to such week which is in excess of the amount which is equal to 25% of such individual’s determined weekly benefit amount
Reading these statutes together, it is clear that a claimant may be unemployed within the meaning of the KESL even if he or she works part-time. Although wages from the claimant’s part-time work may reduce the weekly benefits payable to the claimant, the claimant may still be deemed unemployed. This appears to be the case whether the claimant is working part-time at the moment he or she becomes unemployed within the meaning of K.S.A. 2013 Supp. 44-703(m) or whether he or she subsequently begins part-time work earning less than his or her weekly benefit amount.
Under the above statutory scheme, the presence or absence of part-time work may affect the amount of benefits payable to a claimant, but it does not affect the claimant’s eligibility to receive benefits. In short, part-time work is optional. Since a claimant can receive benefits regardless of whether he or she works part-time, it would make no sense to disqualify the claimant from any and all benefits upon tire cessation of part-time work. See Tomlin v. Unemployment Ins. Appeals Bd., 82 Cal. App. 3d 642, 647-48, 147 Cal. Rptr. 403 (1978); Sticka v. Holiday Village South, 348 N.W.2d 761, 763 (Minn. 1984). This is particularly true where the part-time work would likely not be considered “suitable work” for the claimant and he or she could decline such work without jeopardizing his or her qualification for benefits. See K.S.A. 2013 Supp. 44-706(c) (claimant is disqualified for benefits if he or she fails without good cause to accept suitable work when offered); Sticka, 348 N,W.2d at 763 n.l.
The Board’s interpretation would also create a disincentive for unemployed individuals to accept part-time work while continuing to seek full-time work. The claimant could refuse part-time work and continue to receive full benefits. But if the claimant accepted part-time work and later voluntarily left that work, he or she would risk losing any and all benefits. The legislature cannot have intended such an unreasonable result. See Emerson v. Director of the Division of Employment Security, 393 Mass. 351, 353, 471 N.E.2d 97 (1984) (stating that such effect is “to reward the idle and punish the ambitious”).
We reject the Board’s interpretation of K.S.A. 2013 Supp. 44-706(a), which would disqualify a claimant who voluntarily leaves one job from all unemployment compensation benefits, even those benefits related to the loss of a job for which the claimant would otherwise be eligible to receive benefits. This interpretation is contrary to the explicitly stated public policy underlying the KESL and inconsistent with the overall statutory scheme of the KESL. Furthermore, the overwhelming majority of courts of other jurisdictions have for similar reasons rejected such a construction when interpreting their own analogous statutes. See, e.g., Tomlin, 82 Cal. App. 3d at 649; Rodgers v. Dep't of Employment Security, 186 Ill. App. 3d 194, 200-01, 542 N.E.2d 168 (1989); McCarthy, 247 Iowa at 764; Emerson, 393 Mass. at 352-53; Sticka, 348 N.W.2d at 763; Baker v. Midway Enterprises, Inc., 78 S.W.3d 188, 193-94 (Mo. App. 2002); Gilbert, 214 Neb. at 685; Goodman v. Board of Review, 245 N.J. Super. 551, 558-59, 586 A.2d 313 (1991).
We do note Delhomme v. Florida Unemployment Appeals Com’n, 88 So. 3d 205, 207-08 (Fla. Dist. App. 2011), where legislative histoiy indicated an intent to totally disqualify from all benefits any individual who was laid off from a full-time job and then voluntarily quit a part-time job.
The more reasonable interpretation of K.S.A. 2013 Supp. 44-706(a) is that a claimant who voluntarily leaves a job without good cause attributable to the work or the employer is only thereby disqualified from benefits related to the job he or she voluntarily left; the claimant is not thereby disqualified from benefits he or she might otherwise be eligible to receive related to other jobs. Each job should be considered separately and benefits disqualified separately according to the facts related to the termination of each job. This interpretation is consistent with the public policy purposes and overall statutory scheme of the KESL. Moreover, this interpretation appears workable in light of the KDOL’s system of separately charging each employer for benefits paid to a claimant depending upon the proportion of the claimant’s wages from each employer. See K.S.A. 2013 Supp. 44-710(c)(1), K.S.A. 2013 Supp. 44-710(e)(3). See also Gilbert, 214 Neb. at 684-85 (interpreting voluntary departure disqualification to apply separately to each job was reasonable in light of statutory mechanism for separately crediting and charging the accounts of different employers).
Here, there is no dispute that Johnson was eligible for and began receiving benefits following his separation from his computer programming position with the State. His later voluntary departure from his part-time position at McDonald’s did not thereby disqualify him from benefits related to the loss of his job with the State. The Board erroneously interpreted and applied the voluntary departure disqualification of K.S.A. 2013 Supp. 44-706(a), and therefore the district court properly granted relief to Johnson.
Affirmed.
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Hill, J.:
This is an interlocutory appeal of a district court ruling suppressing contraband found in a trash bag left in front of a house. The district court held that since there was no evidence connecting the contraband with the house where the defendant was living, there was no probable cause to issue a search warrant, and the court thus suppressed the evidence. Because we agree that tliere was no probable cause for issuing this search warrant, we hold the court’s ruling on that point is correct. In its second attack on the court’s ruling, the State contends the good-faith exception to the exclusionary rule compels the admission of this evidence. Because the affidavit in this case was so bare-bones, it lacked any indicia of probable cause, and any official belief that probable cause to search existed was unreasonable. We hold the trial court was correct when it refused to apply the good-faith exception.
A purchase of fertilizer and soil conditioner started this investigation.
At a meeting hosted by the Missouri State Highway Patrol regarding possible marijuana “grow houses” in Olathe, a Missouri Sergeant, Jim Wingo, told Olathe Detective Nicholas Stein that an unidentified male had been seen purchasing perlite soil conditioner and hquid fertilizer from the Green Circle Garden Center on Februaiy 8, 2011. The man was then seen driving a car registered to Mai Lin Malone, whose address was a residence on South Troost Street in Olathe.
Detective Stein went to the Troost address on April 7,2011, and recovered trash placed in a plastic garbage can sitting at the curb. Stein said that when he sorted through the trash, he found some plants suspected to be marijuana, a glass pipe containing suspected marijuana residue, an empty jug of General Hydroponics, and other items consistent with marijuana cultivation. Stein also found mail addressed to Melissa Sayer, at the same residence on South Troost Street. The mail was not found in the same bag as the contraband. Stein said that water billing records noted that Mai Lin Malone was the resident at the residence on South Troost Street.
Stein used this information to obtain a search warrant. The court concluded that the officer had probable cause to believe marijuana and various items related to the cultivation, use, packaging, and sale of marijuana would be found at the residence and issued a search warrant.
Stein and other officers executed the search warrant on April 8, 2011. They discovered marijuana plants, drug paraphernalia, firearms, and tattooing equipment. The State charged Malone with the crimes of cultivation of marijuana, two counts of possession of drug paraphernalia, a drug tax stamp violation, and unlicensed tattooing.
Malone moved to suppress all evidence seized during the search. He claimed Stein’s affidavit failed to establish probable cause to search because the mail bearing Sayer’s name — the only evidence giving an indication of the source of the trash — was not found in tlie same bag as the contraband. Malone argued that because the search warrant was unsupported by probable cause, all evidence obtained during the search — including the tattooing evidence-— was “fruit of the poisonous tree.”
In opposition to the motion, the State argued that the combination of finding the trash directly in front of the Troost residence and Stein’s information regarding the prior garden center purchase established probable cause. The State also claimed recovery of the tattooing evidence was permissible because it was in plain view when they were searching.
The district court agreed with Malone and granted his motion to suppress all evidence obtained during the search. The court explained that under Kansas law, an affidavit must specify a link between trash collected during a trash pull and the residence the police want to search. The court said that here, where the contraband was found in one trash bag and any evidence showing the source of the trash was found in a separate bag, there was not a sufficient link between the contraband and the residence. The court found Stein’s information about the garden center purchase to be insufficient as well, noting the link between Malone and this purchase was “tenuous,” as there was no evidence to establish Malone was the person who made the purchase.
In a motion for reconsideration, the State brought up for the first time the good-faith exception to the exclusionary rule. In its resulting holding, the court first observed it need not consider the State’s argument because the State could have presented this argument prior to the court’s ruling on the suppression motion. Nevertheless, the court addressed the substance of tire State’s argument and determined the good-faith exception did not apply here because it was not reasonable for the officers to act on the warrant — -since the indicia of residency was not found in the same bag as die contraband. The court noted our Supreme Court has made it clear that an affidavit must establish a link between contraband found in the trash and a residence subject to a search, this is not a recent development in the law, and police officers must have a reasonable knowledge of what the law prohibits.
The State brings this appeal, arguing the district court erred in determining Stein’s affidavit was insufficient to support a finding of probable cause to search the Troost residence. In addition, the State argues the good-faith exception to the exclusionary rule should have applied here because law enforcement officers reasonably relied on die search warrant. We will examine the two issues in that order.
Our rules of revieio.
The standards for issuing a search warrant are well known. When considering whether to issue a search warrant, a judge is required to “make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, including the veracity and basis of knowledge of any person supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” State v. Hicks, 282 Kan. 599, Syl. ¶ 1, 147 P.3d 1076 (2006).
In turn, when we review the issuance of a search warrant on appeal, we apply a deferential standard of review to see if the affidavit provides a substantial basis to support the issuance of the warrant:
“When an affidavit in support of an application for search warrant is challenged, the task of the reviewing court is to ensure that the issuing magistrate had a substantial basis for concluding probable cause existed. This standard is inherently deferential. It does not demand that die reviewing court determine whether, as a matter of law, probable cause existed; rather, the standard translates to whether the affidavit provided a substantial basis for the magistrate’s determination that there is a fair probability diat evidence will be found in the place to be searched. Because die reviewing court is able to evaluate the necessarily undisputed content of an affidavit as well as the issuing magistrate, the reviewing court may perform its own evaluation of the affidavit’s sufficiency under this deferential standard.” Hicks, 282 Kan. 599, Syl. ¶ 2.
This deferential standard of review is appropriate because such a policy encourages police officers to first seek a warrant before making a search. A more rigorous standard of review would discourage such behavior. Hicks, 282 Kan. at 613. As always, the State bears the burden of proving the lawfulness of a search and seizure at a hearing on a motion to suppress. State v. Vandiver, 257 Kan. 53, 57-58, 891 P.2d 350 (1995).
For our part, when we are asked to determine the sufficiency of a search warrant affidavit, we look at the affidavit from the four corners of the document. State v. Malm, 37 Kan. App. 2d 532, 543, 154 P.3d 1154, rev. denied 284 Kan. 949 (2007). Obviously, the ultimate determination of the suppression of evidence is a question of law, requiring independent appellate determination. State v. DeMarco, 263 Kan. 727, 732, 952 P.2d 1276 (1998). The question that is before us is whether Detective Stein’s affidavit provided a substantial basis for the judge’s determination that there was a fair probability that evidence would be found at the Troost residence. Hicks, 282 Kan. 599, Syl. ¶ 2.
There was no probable cause to issue this search warrant.
In ruling on the motion to suppress, the district court found fault with both the trash pull and the garden center purchase information. First, the court determined that the indicia of residency needed to have been in the same bag as the contraband, and the court found Detective Stein’s conclusion that the contraband belonged to the Troost residence to be unsupported by any facts. Second, the court concluded the link between Malone and the garden center purchase was “tenuous,” as there was no evidence establishing Malone as the person who made the purchase.
We agree with the district court’s conclusion on this point. When it comes to trash pulls, if a search warrant is to be issued, the general rule requires some evidence connecting the drug evidence discovered in a trash bag and the residence to be searched. For example, in Hicks, 282 Kan. at 616-17, the court found evidence obtained from two trash pulls insufficient to support probable cause where:
• The officer’s affidavit stated without explanation that the bags were seized from the “normal place” where Hicks placed his trash;
• the affidavit did not state whether the bags contained indicia of residency; and
• the affidavit did not indicate whether anyone saw Hicks place the bags in the trash area.
The Hicks court noted the requirement of establishing a sufficient connection between the trash and the residence has been consistently applied by this court as well. 282 Kan. at 617.
In State v. Malm, 37 Kan. App. 2d 532, 543, 154 P.3d 1154 (2007), the panel held that in order to obtain a warrant to search a suspect’s residence, there must be some definite link between the illegal or suspicious activity described in an affidavit and the suspect’s residence. That link must be sufficient to establish a fair probability that contraband or evidence of a crime will be found in the residence. This does not necessarily mean the evidence linking the contraband with the residence to be searched must be found in the same trash bag. The linkage can be established by other evidence such as surveilance reports.
Here, the police found information concerning the occupancy of the residence and the contraband in separate trash bags, albeit from the same trash pull. There was no evidence indicating who placed the bags at curb side. Two unpublished opinions from this court, one finding no probable cause and one finding probable cause, offer guidance on this point.
In State v. Bennett, No. 92,997, 2005 WL 1429919 (Kan. App. 2005) (unpublished opinion), a panel of this court held an affidavit failed to establish the requisite link between the trash and the residences at issue. The panel observed:
“Here, die affidavits in question do not state that die police actually observed the defendants take the trash from their residences and place it out for collection. More significantly, the affidavits indicated that Grayson collected multiple trash bags from outside each residence. However, all four affidavits failed to mention whether the indices of residency were found in the same trash bag as the contraband. This is important because the trash outside each residence was accessible to the public where anyone could have passed by and deposited contraband.” (Emphasis added.) 2005 WL 1429919, at *5.
The facts in Bennett are similar to the facts here.
In contrast, this court upheld a search in a case where the indicia of residency — a prescription bag and work schedules bearing the defendant’s name — supported a finding of probable cause because. the identifying information was found in the same trash bag as the one containing contraband. This evidence provided the link between the contraband and the residence the police wanted to search. See State v. Dickerson, No. 90,654, 2004 WL 1489048, at *1 (Kan. App. 2004) (unpublished opinion). The court rejected Dickerson s argument that the contraband could have come from another person in his duplex, noting the contraband was found “in an individual trash bag inside the container which also contained” the indicia of residency. 2004 WL 1489048, at *3.
Thus, in Bennett, the State could not produce evidence that established a link between the residence and the contraband, and the evidence from the search was suppressed. In Dickerson, the evidence that linked the residence with the contraband was found in the same trash bag, and the search was upheld. These holdings make sense. Obviously, since anyone can throw a bag of trash containing contraband into a plastic barrel sitting at curbside, the question becomes what ties tire contraband with the residence.
This case involved only one trash pull. There was no surveillance evidence connecting the trash bags with the residence or the people who lived in that residence. In short, there was no evidence of illegal activity in the house.
In our view, there is no connection between the residence and the contraband that is sufficient to support the issuance of a search warrant. Not only was the mail found separately from the contraband, but the mail was not addressed to Mai Lin — tire only person shown to have a connection to the garden center purchase and to Malone. Anyone could have passed by the Troost residence and thrown the bag containing contraband into the trash can. Stein’s affidavit did not indicate that anyone saw Malone or another resident of the Troost house place the bags in the can, and there is no indication that more than one trash pull was conducted during this investigation.
Stein’s affidavit simply indicated the trash was placed near the curb at the Troost residence. Kansas courts have consistently ruled that such a low level of information is insufficient to support probable cause. For example, in Hicks, 282 Kan. at 616-17, the Supreme Court held there was not a substantial basis for probable cause where an affidavit merely indicated the bags were seized from the “normal place” where defendant placed his trash for pickup and the affidavit did not state whether the defendant was seen placing tire trash in its location. In State v. Droge, No. 92,501, 2005 WL 475264, at * 2, 5 (Kan. App. 2005) (unpublished opinion), a panel of this court held that an affidavit was insufficient to support probable cause where the officer indicated he obtained the defendant’s trash from a pickup location but the officer did not state that anyone observed the defendant place the trash there. Nor did the officer report any other facts that would support a conclusion the trash belonged to the defendant.
Additionally, two other items are troubling at this point. First, Stein s affidavit provided no information regarding the identity of the person who allegedly made the garden center purchases— other than it was a male driving a vehicle registered to a person listed as residing at the Troost residence. No physical description of the buyer was given that established any similarity between the buyer and Malone. Also, the affidavit provided no explanation about why a single purchase of soil conditioner and liquid fertilizer might be indicative of marijuana cultivation at this residence.
The second troubling point is the amount of time between the purchases at the garden store on February 8,2011, and the request for a warrant on April 7, 2011. This gap significantly weakened any possible link between the soil conditioner and liquid fertilizer purchase and the contraband found 2 months later. One can reasonably ask what did the garden store purchases made 2 months earlier have to do with contraband found at curbside 2 months later? We see no link in the affidavit that provides a substantial basis for the issuance of the warrant.
The district court did not err in holding there was no substantial basis to support a finding of probable cause to issue a search warrant. Thus, the court correctly suppressed the evidence obtained during the search.
Is the good-faith exception applicable?
When law enforcement officers conduct an unreasonable search in violation of an individual’s Fourth Amendment rights, a court’s remedy for such an illegal search is to exclude any resulting evidence in the prosecution of that individual. State v. Althaus, 49 Kan. App. 2d 210, 219, 305 P.3d 716 (2013). There are exceptions to the rule.
The Fourth Amendment to the United States Constitution established a policy, and the United States Supreme Court has expressed a preference that a neutral, objective magistrate should be involved in the decision to allow police to search a residence. In furtherance of that policy, the United States Supreme Court in United States v. Leon, 468 U.S. 897, 908-09, 913, 104 S. Ct. 3405, 82 L. Ed. 2d 677 (1984), held the exclusionaiy rule should not be applied in cases where law enforcement officers relied in good faith on a signed warrant in conducting a search. Employing a “costs-benefits” analysis, the Supreme Court concluded, “the marginal or nonexistent benefits produced by suppressing evidence obtained in objectively reasonable reliance on a subsequently invalidated search warrant cannot justify the substantial costs of exclusion.” 468 U.S. at 922.
The Kansas Supreme Court has approved application of the good-faith exception to the exclusionary rule in State v. Hoeck, 284 Kan. 441, Syl. ¶¶ 1, 2, 463, 163 P.3d 252 (2007). Prior to Hoeck, tire Kansas Supreme Court had held that in Kansas, the good-faith exception created by Leon does not apply to a warrant that fails to provide the magistrate with “a substantial basis for determining that probable cause existed that drugs would be found in defendant’s residence.” See State v. Longbine, 257 Kan. 713, 721-22, 896 P.2d 367 (1995), disapproved on other grounds by State v. Hicks, 282 Kan. 599, 147 P.3d 1076 (2006). The court’s view has changed. Rejecting all of its prior rulings concerning Leon, the court held:
“We therefore conclude that the holding in Leon applies in Kansas without modification: The Fourth Amendment exclusionaiy rule should not be applied to bar the use of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate but ultimately found to be invalid, except where: (1) the magistrate issuing the warrant was deliberately misled by false information; (2) the magistrate wholly abandoned his or her detached or neutral role; (3) there was so little indicia of probable cause contained in the affidavit that it was entirely unreasonable for tire officers to believe the warrant was valid; or (4) the warrant so lacked specificity that officers could not determine the place to be searched or the items to be seized.” Hoeck, 284 Kan. at 463-64.
Here, the district court concluded this case fell into tire third category discussed in Hoeck, so the good-faith exception did not apply. Specifically, the court concluded the officers in this case did not reasonably act on the warrant because they could “easily” have understood the indicia of residency found in the trash did not provide a sufficient link to support probable cause, as it was found in a separate bag from the contraband. The question of whether this court has correctly construed the Leon good-faith exception is one of law over which appellate courts have unlimited review. Hoeck, 284 Kan. at 447-48.
The district court noted that in Hicks, the Kansas Supreme Court made it clear that an affidavit must establish a link between the residence and the contraband found in a trash can. See 282 Kan. at 617. The district court said officers must have a reasonable knowledge of what the law prohibits and went on to point out that this area of the law is not a recent development. The court noted the State failed to point to any law upon which the affiant could reasonably have relied when seeking the search warrant.
We question whether the good-faith exception can apply under these facts. Detective Stein, the affiant who obtained this search warrant, along with other officers, executed the search. Stein knew he had no evidence linking the contraband with the residence. In the affidavit, Stein acknowledged that he found the contraband in a different bag than the bag with the indicia of residency. Since Stein offered no other information that would link the trash bags to the Troost residence, we conclude he knew of no other evidence linking the two. For example, Stein did not say he saw Malone or another resident of the Troost house place the bags in the can. Stein did not indicate he conducted multiple trash pulls finding contraband each time. Stein did not indicate he had been conducting surveillance of the Troost house. Stein simply indicated that the trash bags were found at the curb near the Troost residence. If he had any additional knowledge he certainly did not share it with the judge who issued the search warrant.
Application of the good-faith exception presumes the law enforcement officer involved in a particular case has a reasonable knowledge of what the law prohibits. “ ‘Grounding the modification [of the exclusionary rule] in objective reasonableness, however, retains the value of the exclusionary rule as an incentive for the law enforcement profession as a whole to conduct themselves in accord with the Fourth Amendment. [Citation omitted.]’ ” Leon, 468 U.S. at 919 n.20; see Althaus, 49 Kan. App. 2d at 222.
A law enforcement officer should understand the broad precepts implicated in a Fourth Amendment search and should recognize an obviously deficient warrant. Good faith is an objective standard measured by how a reasonable law enforcement officer would view the circumstances. Thus, an officer poorly versed in basic search and seizure requirements may not rely on the good-faith exception solely because he or she subjectively believes the judge acted properly in signing a warrant. Althaus, 49 Kan. App. 2d at 222.
Stein claimed in his affidavit that he had previously been involved in marijuana investigations and that he was a certified law enforcement officer of over 5 years of experience and had attended many training sessions for narcotics crimes investigators. Employing an objective standard of review here, we agree with the district court. Detective Stein was required to act in accord with the Fourth Amendment and possess a reasonable knowledge of the law. Indeed, the requirement of having a connection between the contraband found in trash left at curbside where anyone could deposit it and the residence to be searched is not a new requirement.
When put in plain terms, it becomes clear that there was no probable cause here. Three suspected marijuana plants and a glass pipe found in a garbage bag thrown into a trash can at curbside in front of a house, without more, does not mean that the contraband came from that house. Any passerby could have deposited that contraband into that trash can. Indeed, this affidavit for a search warrant was one of the “bare-bones” affidavits referred to by the Kansas Supreme Court in Hoeck that cannot support the application of the good-faith exception. 284 Kan. at 452.
In addition, Stein’s information about the garden center purchase lends scant support to a finding of probable cause. Stein provided no information regarding the identity of the person who allegedly made the garden center purchase, .other than it was a male driving a vehicle registered to a person listed as residing at the Troost residence. The affidavit provided no explanation why a single purchase of soil conditioner and liquid fertilizer might be indicative of marijuana cultivation, especially with the significant passage of time between the garden center purchase and the trash pull.
We emphasize that there is nothing in the record that suggests Stein intentionally misled or lied to the judge who issued the search warrant. Additionally, we are not persuaded by the State’s argument that comments made by the district judge during the hearing that he would have believed the probable cause requirement was met. The district judge acknowledged at the hearing that he had only “glanced” at the authorities on the issue and that he needed to “revisit” the issue “in writing.” The district judge’s initial passing remarks on the issue are irrelevant to his final decision.
We agree with the district court that under the third Leon exception, there was so little indicia of probable cause contained in the affidavit here that it was entirely unreasonable for Stein to believe the search warrant was valid. We hold the district court did not err in refusing to apply the good-faith exception based on its finding that the officers in this case acted unreasonably.
Finally, the district court made no specific ruling about the tattooing evidence but simply suppressed all evidence obtained during the search. Because tire State has failed to brief the issue on appeal, we must deem the issue abandoned and uphold the suppression of all evidence obtained during the search, including the tattooing evidence. See Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009).
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Arnold-Burger, J.:
When a person is convicted of a sexually violent crime and he or she has a prior Kansas conviction for a sexually violent crime or a conviction for a comparable offense in another state, the court is required to double the person’s prison sentence. This rule is known as the persistent sex offender rule. See K.S.A. 21-4704(j). George Riolo pled guilty to two different charges, both of which constituted sexually violent offenses under Kansas law. The State asserted that, due to a prior conviction in another state for a comparable crime, this special sentencing rule should apply. Riolo countered that this prior conviction — a Colo rado offense from 1986 — was not comparable to other sexually violent crimes in Kansas and that the persistent sex offender rule should not apply. The district court disagreed and applied the rule. Because we find that Riolo’s crime of conviction in Colorado was comparable to the Kansas sexually violent crime of indecent liberties with a child, we affirm.
Factual and Procedural History
Pursuant to an agreement with the State, Riolo pled guilty to one count of aggravated indecent liberties with a child in violation of K.S.A. 21-3504(a)(2)(A) and two counts of aggravated indecent solicitation of a child in violation of K.S.A. 21-3511(a). Riolo’s plea acknowledgment and plea agreement each noted that the “double rule” — the sentencing rule for persistent sex offenders, K.S.A. 21-4704(j) — may apply to Riolo’s sentence. This special rule was applicable due to Riolo’s 1986 conviction in Colorado for sexual assault on a child.
Prior to sentencing, Riolo filed a motion and objected to the district court applying the persistent sex offender rule. Riolo argued that the Colorado offense in question, sexual assault on a child, was too dissimilar to any of the sexually violent offenses in Kansas for the special rule to apply.
The district court heard arguments on the motion immediately prior to sentencing Riolo. The State informed the district court that, according to court records from Colorado, the victim in that case was 7 years old. However, the specific facts underlying the conviction were not provided. The district court examined the two statutes and found that the language of the Colorado statute was “virtually identical or similar in meaning” to indecent or aggravated indecent liberties with a child in Kansas. Because the Colorado offense was comparable to one in Kansas, the district court denied Riolo’s motion and applied the special rule at sentencing resulting in a controlling term of 172 months’ imprisonment.
Analysis
On appeal, Riolo renews the argument he relied upon before the district court and contends that the Colorado statute under which he was convicted in 1986 is too dissimilar to our Kansas statutes for the persistent sex offender rule to apply. Because this is an issue of statutoiy interpretation, this court exercises unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
The sentencing statute at issue provides that a persistent sex offender s sentence “shall be double the maximum duration of the presumptive imprisonment term.” K.S.A. 21-4704(j)(l). The statute defines a persistent sex offender to be an individual who is convicted of a sexually violent crime or rape and who, at the time of conviction, has at least one previous conviction for a sexually violent crime or rape. K.S.A. 21-4704(j)(2). Concerning that previous conviction, the statute explains that the conviction must be “for a sexually violent crime, as defined in K.S.A. 22-3717 and amendments thereto in this state or comparable felony under the laws of another state, the federal government or a foreign government.” (Emphasis added.) K.S.A. 21-4704(j)(2). At the time of Ri-olo’s conviction, the statute defining sexually violent crimes included indecent and aggravated indecent liberties with a child, indecent and aggravated indecent solicitation of a child, sexual exploitation of a child, aggravated sexual batteiy, and others. K.S.A. 22-3717(d)(2).
Riolo contends that the offense for which he was convicted, found at Colo. Rev. Stat. § 18-3-405 (1986), is not comparable to any listed in K.S.A. 22-3717. When discussing the classification of out-of-state offenses for criminal history purposes, our Kansas courts have repeatedly held that “[a] comparable offense need not contain elements identical to those of the out-of-state crime.” State v. Barajas, 43 Kan. App. 2d 639, 643, 230 P.3d 784 (2010). Instead, the two offenses must be “similar in nature and cover a similar type of criminal conduct.” 43 Kan. App. 2d at 643. However, there is limited precedent regarding the comparison of offenses for the purposes of the persistent sex offender rule. We will review the few cases that address the issue.
In State v. Chesbro, 35 Kan. App. 2d 662, 134 P.3d 1, rev. denied 282 Kan. 792 (2006), the defendant challenged whether the Nebraska sexual assault statute under which he had previously been convicted constituted a sexually violent offense under Kansas law. After examining the Nebraska statute and our statutes, this court determined that “there are no conceivable facts constituting attempted sexual assault in the first degree under the Nebraska statute, which would not also constitute the commission of an attempted sexually violent offense” under our Kansas statutes. 35 Kan. App. 2d at 678. This court held similarly in State v. Barber, No. 102, 357, 2010 WL 3636272 (Kan. App.) (unpublished opinion), rev. denied 291 Kan. 913 (2010). Although the Arkansas rape statute in Barber differed from our Kansas rape statute, those behaviors not barred by our rape statute were barred by other statutes — and all those offenses were sexually violent ones. 2010 WL 3636272, at *2. And in State v. Headgepath, No. 94,341, 2006 WL 3740844, at *3 (Kan. App. 2006) (unpublished opinion), rev. denied 284 Kan. 948 (2007), this court noted that, in absence of the defendant furnishing a more complete record, it could only find error if, as a matter of law, the two offenses were never comparable.
The Colorado statute at issue in this case provides: “Any actor who knowingly subjects another not his or her spouse to any sexual contact commits sexual assault on a child if the victim is less than fifteen years of age and the actor is at least four years older than the victim.” Colo. Rev. Stat. § 18-3-405(1) (1986). Sexual contact is defined as
“the knowingly touching of the victim’s intimate parts by the actor, or of the actor’s intimate parts by the victim, or the knowingly touching of the clothing covering the immediate area of the victim’s or actor’s intimate parts if that sexual contact can reasonably be construed as being for the purposes of sexual arousal, gratification, or abuse.” Colo. Rev. Stat. § 18-3-401(4) (1986).
The term “intimate parts” is further defined as “the external genitalia or the perineum or the anus or the pubes of any person or the breast of a female person.” Colo. Rev. Stat. § 18-3-401(2) (1986).
Both parties, as well as the district court, appear to agree that the most similar of our Kansas offenses is indecent liberties with a child, found at the time in K.S.A. 1985 Supp. 21-3503. That statute reads:
“Indecent liberties with a child is engaging in any of the following acts with a child who is not married to the offender and who is under 16 years of age:
(a) Sexual intercourse; or
(b) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender or both.” K.S.A. 1985 Supp. 21-3503(1).
Riolo draws attention to two major differences between these offenses; (1) the dichotomy between the sexual contact in Colorado and the leiocl fondling in Kansas; and (2) the inclusion of touching for the purposes of abuse in the Colorado definition of sexual contact.
Our Kansas Supreme Court parsed the lewd fondling or touching language in our indecent liberties statutes not long ago, explaining that “whether a touching is lewd should be determined by considering the common meaning of the term lewd,’ that is whether a touching is ‘sexually unchaste or licentious; suggestive of or tending to moral looseness; inciting to sensual desire or imagination; indecent, obscene, or salacious.’ ” State v. Ta, 296 Kan. 230, 242-43, 290 P.3d 652 (2012). Our Supreme Court further noted that “a factfinder should consider whether the touching ‘tends to undermine the morals of a child [and] ... is so clearly offensive as to outrage the moral senses of a reasonable person.’ ” 296 Kan. at 243.
The question here, then, is whether sexual contact under the Colorado statute fits the foregoing definition. We believe it does. Under the law, sexual assault of a child involves either the perpetrator touching the child’s genitalia or the clothes over the child’s genitalia, or the child doing the same to the perpetrator. See Colo. Rev. Stat. § 18-3-401(4) (1986); Colo. Rev. Stat. § 18-3-405(1) (1986). Either way, a reasonable person would likely be outraged by this behavior and find it indecent, obscene, or salacious. It cannot be fairly said that this sort of contact falls outside our Supreme Court’s definition of lewd touching. As such, the type of contact described and prohibited by each statute is comparable.
Turning now to the touching for the purposes of abuse language present in the Colorado statute, Riolo argues that our Kansas law lacks this particular alternative. See K.S.A. 1985 Supp. 21-3503(l)(b). Instead, our statute focuses on the other two purposes listed in the Colorado statute; sexual arousal and sexual gratification or satisfaction. See K.S.A. 1985 Supp. 21-3503(l)(b); Colo. Rev. Stat. § 18-3-401(4) (1986).
But when read in context, it is clear that the touching for the purposes of abuse language means touching for the purposes of sexual abuse, not abuse in general. Like Kansas, Colorado has a general child abuse statute. Colo. Rev. Stat. § 18-6-401 (1986) provides that “[a] person commits child abuse if he causes an injuiy to a child’s life or health . . . .” The statute at issue here, on the other hand, prevents sexual contact with a child. In fact, the statute is titled “Sexual Assault on a Child.” Colo. Rev. Stat. § 18-3-405 (1986). The definition for “sexual contact” appears in a definition section under a broader part of the statute entitled “Unlawful Sexual Behavior.” Colo. Rev. Stat. § 18-3 Part 4 (1986). Accordingly, the term “sexual” that precedes “arousal, gratification, or abuse” clearly applies to all three. In other words, the statute refers to sexual arousal, sexual gratification, or sexual abuse. In dealing with a similar issue — namely, whether the Colorado statute at issue here qualified as a crime of violence under federal law — the 10th Circuit Court of Appeals found that that Colo. Rev. Stat. § 18-3-405(1) criminalizes only activity that qualifies as sexual abuse of a minor and therefore qualifies as a crime of violence under federal law. United States v. De La Cruz-Garcia, 590 F.3d 1157, 1161 (2010). The 10th Circuit went on to find that engaging in sexual touching of a minor necessarily results in abuse or harm. 591 F.3d at 1160-61. Accordingly, we cannot conceive of any facts constituting sexual assault on a child under the Colorado statute that would not also constitute the commission of indecent liberties with a child, a sexually violent offense, under our Kansas statutes.
Riolo does not allege that the facts underlying his Colorado conviction do not also fall under the Kansas statute, but even if there were some remote set of facts that distinguish the two statutes, the lynchpin is not whether every conceivable set of facts would result in convictions under both statutes but whether they are similar in their nature and in the conduct they attempt to prevent. See Ba-rajas, 43 Kan. App. 2d at 643. This court has previously upheld district court determinations of comparable offenses in a criminal history context even when the out-of-state statute encompassed some acts not necessarily encompassed by the Kansas statute. See State v. Scott, No. 107,251, 2013 WL 5507281, at *6-7 (Kan. App. 2013) (unpublished opinion) (federal statute regarding use of a firearm which included brandishing and discharging the weapon was sufficiently similar to Kansas statute regarding aggravated assault), rev. denied 300 Kan. 1107 (2014); State v. LaFave, No. 105,709, 2012 WL 1919981, at *2-3 (Kan. App. 2012) (unpublished opinion) (Colorado statute prohibited specific types of contact “ ‘with intent to harass, annoy, or alarm’ ” while Kansas statute prohibited any touch “ ‘done in a rude, insulting or angry manner’ ”); State v. Maudlin, No. 104,062, 2011 WL 5143041, at *2-3 (Kan. App. 2011) (unpublished opinion) (Missouri statute required either criminal negligence or recklessness while Kansas statute required only recklessness). Here, the two statutes are more similar than they are different. Despite employing different language, both offenses aim to prohibit the same general type of conduct — sexual contact between children and adults. The facts constituting sexual assault of a child in Colorado will constitute indecent liberties with a child in Kansas. Any small difference in the statutes’ language does not render the offenses incomparable as a matter of law. As such, we affirm the district court’s decision.
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Leben, J.:
Father, E.H, appeals from the district court’s order terminating his parental rights to M.H. He argues that the district court erred in two ways: (1) by failing to notify M.H.’s potential Indian tribe in compliance with the procedures outlined in the Indian Child Welfare Act (the Act) and its accompanying guidelines; and (2) by holding that clear and convincing evidence supported finding him unfit to parent M.H.
Father is correct that the Act requires that a party seeking to terminate the parental rights of a child that may be Native American must follow specific procedures for notifying the child’s potential tribe about a termination-of-parental-rights hearing. See 25 U.S.C. § 1912(a) (2012). Though the best way for a court to ensure compliance with the Act is for the State to file the notices it has sent and the return receipts it has received with the district court before a termination hearing, the State’s failure to do so here doesn’t require reversal. The State filed die required notice and receipts after the hearing in this case, and those filings prove that the district court complied with the Act.
Further, while a finding that a parent is unfit must be supported by especially strong (clear and convincing) evidence, the evidence here showed that Father has been incarcerated for the majority of Mil’s life, hasn’t maintained contact with her or the agency, and didn’t complete the case-plan tasks assigned to him. Despite some indications that Father has worked toward reintegration with M.H., we find that the district court’s decision to terminate his rights was based on clear and convincing evidence. We therefore affirm the district court’s judgment.
Factual and Procedural Background
M.H. was born in June 2011 with a cleft lip and palate. Nurses became concerned for her safety when they saw a physical altercation between her parents, A.G. (the Mother) and E.H. Father apparently grabbed Mother’s arm while she was holding M.H., and the nurses notified the State. As a result, the State — through the Kansas Department of Social and Rehabilitation Services, now the Kansas Department for Children and Families — took M.H. into its custody within a week of her birth and placed her with the foster family that she still lives with.
The social-service agency assigned to help the family, formerly TFI, now KVC, immediately scheduled case-plan meetings with the parents. Father didn’t attend the first two meetings — on June 24, 2011, and July 18, 2011 — even though he had personally spoken with the family’s case manager, Jeni Moss, and knew when and where the meeting was taking place. At the second meeting, Father was assigned three case-plan tasks: (1) to have no contact with M.H. per court order; (2) to have no contact with Mother per court order; and (3) to present himself to the agency for more tasks. Father and Mother were still living together, however, despite the no-contact order.
Early in M.H.’s life, the agency determined that Mother likely would not be a good placement for M.H. because she had auditory and visual hallucinations and was often homeless — even when the agency or her family provided her resources.
Father eventually got in contact with the agency and arranged to have supervised weekly visitation with M.H. Father attended two visits but had not seen M.H. since September 2011 at the time of the court’s November 2013 hearing. Though Father cancelled one visit because he was sick and knew that M.H. had a surgeiy, he missed tire others because he failed to complete drug tests, because he was committed to inpatient drug treatment, and because he was incarcerated.
After M.H. was removed from Father’s care, he began abusing marijuana and cocaine. He was incarcerated in October 2011 for violating his parole by using drugs and for committing a new crime: burglary to a motor vehicle. Father has remained incarcerated since October 2011. In fact, Father has been incarcerated for 26 of his 47 years — many times for violating his parole.
While incarcerated, Father has had numerous disciplinary violations — -including one for fighting — which delayed his parole eligibility by 8 months. After Father’s release from prison on his current sentence, Father will still have to serve at least part of a 16-month sentence for the auto-burglary conviction, though he testified tire sentence may be shorter if he gets credit for good time or if it is recalculated.
The agency continued to involve Father in M.H.’s case even after he was incarcerated. For example, Moss visited Father every month in prison until he was transferred to another facility, at which point she wrote him monthly letters. Though Father testified that he occasionally wrote her back and that he also wrote to another caseworker, he admitted he didn’t write often. Moss, however, testified that she never received any correspondence from Father.
Father requested that his ex-wife be given visitation with M.H., and the agency arranged this. His ex-wife, however, didn’t visit with M.H. often because of problems in her personal life, and as of the time of the court hearing didn’t have a relationship with M.H., according to the family’s caseworkers. Father’s ex-wife testified that she believed M.H. would be better off remaining in her foster parents’ care and said that even if she did gain custody of M.H., Father wouldn’t be allowed !to live with them upon his release because she operated a daycare and would not be able to do so if a felon lived with her.
Of the numerous case-plan meetings regarding M.H. that occurred between June 2011 and August 2013, Father only attended two — both by phone. On one occasion, his ex-wife appeared on his behalf because Father was in solitary confinement. At the last case-plan meeting before trial, Father was asked to maintain regular contact with the agency and to inform it about his release date and his ability to parent M.H. But after the final meeting, he didn’t contact the agency either by phone or letter, nor did he send the agency any information about his expected release date or his ability to parent M.H.
The State then moved to terminate both Mother and Father’s rights to M.H. At a pretrial hearing, Father told the district court that he’d recently learned that he was Ramapough Lenape Indian. As a result, the district court ordered that the State comply with the notice provisions in the Indian Child Welfare Act — which require that
“the party seeking the . . . termination of the parental rights to [] an Indian child shall notify . . . tire Indian child’s tribe, by registered mail with return receipt requested, of the proceedings and of their right of intervention. . . . No . . . termination of parental rights proceedings shall be held until at least ten days after the receipt of notice by . . . the tribe . . . .” 25 U.S.C. § 1912(a).
On June 6, 2013, the court made a docket entry for “Indian Child Welfare Act Notice” but didn’t indicate if the notice was sent, to whom it was sent, or if it was filed with the court. The court then postponed the termination-of-parental-rights hearing on two separate occasions for compliance with “notice” requirements. Even so, the court’s written journal entries didn’t specify the notice requirements at issue. On August 29, 2013, the district court held that the Act “[had] been complied with.”
In November 2013, a hearing was held to terminate Mother’s and Father’s parental rights. At that time, M.H. was 2½ years old, called her foster parents Mom and Dad, and still had numerous surgeries and appointments to undergo before her cleft lip and palate would be completely corrected. Father had only seen her twice since she had been removed from her parents’ care, and he had never sent her money, cards, or gifts.
The district court terminated both parents’ rights to M.H. In the written order of termination, the court stated that “[t]he Indian Child Welfare Act was not applicable to this case as appropriate notice was sent to the Ramapough Lenape Nation tribe with no response.” Mother accepted the court’s decision, but Father appealed the termination of his rights, arguing that the Act’s notice requirements had been violated and that the court lacked evidence to support its conclusion that he was unfit to parent M.H.
Analysis
I. Fathers Tribe Received Notice of the Proceedings. Therefore, the State's Initial Failure to File Proof that It Complied with the Act Isn't Reversible Error.
Father argues that the State didn’t comply with the provisions for notifying M.H.’s tribe of the termination-of-parental-rights hearing and that the district court erred by finding ¿at it did. The Indian Child Welfare Act, passed in 1978, 25 U.S.C. § 1901 (2012) et seq., applies to involuntary proceedings to terminate the parental rights of parents of Indian children. 25 U.S.C. §§ 1903(l)(ii), 1911(a) (2012). Whether a child is considered Indian under tire Act is ultimately a determination for the child’s potential tribe, not the district court. In re M.B., 39 Kan. App. 2d 31, Syl. ¶ 5, 176 P.3d 977 (2008). See the Bureau of Indian Affairs’ Guidelines for State Courts; Indian Child Custody Proceedings, Guidelines § B.1-Commentary, 44 Fed. Reg. 67,584, 67,586 (1979); see also 25 U.S.C. § 1903(4) (defining “Indian child”).
As a result, if the district court knows or has reason to believe that the child whose parent’s rights are sought to be terminated might be Indian, then it must order the party seeking to terminate the parent’s rights to provide notice to the child’s tribe of the proceedings and to inform the tribe of its right to intervene. Such notice must be given by certified mail, return receipt requested, or the parent of the Indian child may seek to have the proceedings invalidated. 25 U.S.C. §§ 1912(a), 1914 (2012); see 25 C.F.R. § 23.11(a) (2014); accord In re H.D., 11 Kan. App. 2d 531, Syl. ¶¶ 2-6, 729 P.2d 1234 (1986). A hearing to terminate a potential Indian child’s parent’s rights may not be held until at least 10 days after the tribe has received notice. 25 U.S.C. § 1912(a). These rigid procedures exist because the Act intended Indian child-custody proceedings to “ ‘ “meet stringent requirements” ’ ” to justify separating an Indian child from Indian culture. In re H.A.M., 25 Kan. App. 2d 289, 294, 961 P.2d 716 (1998); Guidelines § A.1-Policy, 44 Fed. Reg. at 67,585-86; see 25 U.S.C. § 1902 (2012).
Father argues that the State didn’t comply with the Act’s procedural requirements because it didn’t file a copy of the notice sent to his tribe or a return receipt that proved his tribe received proper notice. Conversely, the State argues that the statute’s plain language doesn’t require those documents to be filed. It points out that tire statute stops short of requiring the notice and return receipts to be filed and merely requires the tribe to be given notice “by certified mail, return receipt requested.” 25 U.S.C. § 1912(a).
But we can only determine compliance if proper filings are made in the court record. Accordingly, if a party challenges the notice provided, tire State must — at some point — produce the records showing compliance with the statutory notice provisions. Specifically, tire hearing terminating an Indian child’s parent’s rights cannot be held until 10 days after the tribe’s receipt of notice of the proceedings and notice of the right to intervene. 25 U.S.C. § 1912(a). We must be able to determine when the 10-day clock began to run. See In re Morris, 491 Mich. 81, 113, 815 N.W.2d 62 (2012) (noting that while the Act is silent on the recordkeeping requirements of the notice statute, it is essential that return receipts be filed with the court).
The Indian child’s parent normally has tire burden to provide a sufficient record on appeal to show that the claimed error has occurred. In the case of notice to the tribe, however, the State would have the documentation of what notice was given in its files. Unless those documents are filed with the court, the parent would be unable to present the issue on appeal even if the State had not provided proper notice. That would be untenable and unjust.
Based on these common-sense principles, the Bureau of Indian Affairs recommends in its guidelinés that every state require that the actual notice sent to the tribe, the return receipts, and any other proof of service be filed with the district court. Guidelines § B.5(d) — Notice Requirements, 44 Fed. Reg. at 67,588. These guidelines are not intended to have “binding legislative effect,” but our courts have frequently looked to them for guidance in interpreting and applying the Act’s provisions. Guidelines-Introduction, 44 Fed. Reg. at 67,584; see In re M.B., 39 Kan. App. 2d at 37; In re S.M.H., 33 Kan. App. 2d 424, 433, 103 P.3d 976, rev. denied 279 Kan. 1006 (2005). The Bureau’s guideline comments note drat filing a copy of the notice and proof of its service is necessary to preserve a complete record of the efforts to comply with the Act. Guidelines § B.5-Commentary, 44 Fed. Reg. at 67,589.
We therefore hold that parties seeking to terminate parental rights to a child potentially subject to the Indian Child Welfare Act must file both the actual notice sent to the tribe, any return receipts received, and any other proof of service so that the court can determine whether the Act’s notice requirements were met. This holding is consistent with the ruling of courts in several other states. In re Louis S., 117 Cal. App. 4th 622, 629, 12 Cal. Rptr. 3d 110 (2004); People ex rel. N.D.C., 210 P.3d 494, 496-97 (Colo. App. 2009); Morris, 491 Mich. at 114; Matter of K.B., 370 Mont. 254, 261, 301 P.3d 836 (2013); Dependency of E.S., 92 Wash. App. 762, 773, 964 P.2d 404 (1994) (“strongly urging” training in the filing of notices and return receipts).
Here, the State initially failed to comply with the Act’s notice-filing requirements because it didn’t make the notice and return receipts a part of the record. Even at the time of briefing on appeal, the documents were not in our record. Had the record remained that way, we would have been required either to reverse the district court’s judgment for the State’s failure to comply with the Act’s notice requirements (having no proof that it did) or to send the case back for further proceeding on the notice issue. After Father’s appellate brief raised the notice issue, the State asked for permission to add the notice documents to the record, and we granted that motion.
Our review of those documents shows that the State did comply with the Act. The State sent notice to the Ramapough Lenape Nation, which received it on June 12, 2013. The hearing to terminate Father’s rights did not begin until November 5, 2013— nearly 4 months later — clearly after the 10-day period the Act required.
Father raises one additional argument about compliance with the Act’s notice requirements. Father argues that because the tribe never received specific notice of the actual trial date — which didn’t occur until months after the notice was sent — the notice was insufficient. But the statute doesn’t require that the State notify the potential tribe of every possible hearing date — only that it notify the tribe of pending “proceedings.” See 25 U.S.C. § 1912(a). The term “proceedings” is not synonymous with “hearing.” While a hearing refers to a specific part of a proceeding — here, the trial on the State’s motion to terminate Father’s rights — proceedings refer to the entire progression of a lawsuit, which may encompass multiple hearings. Compare Black’s Law Dictionaiy 836 (10th ed. 2014) (defining “hearing” as “[a\ judicial session, usually open to the public, held for the purpose of deciding issues of fact or law” [emphasis added]) with Black’s Law Dictionary 1398 (10th ed. 2014) (defining “proceeding” as “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment” [emphasis added]). Father’s tribe was notified that proceedings to terminate Father’s parental rights had begun; no more specific notice was required.
II. Clear and Convincing Evidence Supported the District Court’s Termination of Fathers Parental Rights.
Father’s second argument is that the district court lacked sufficient evidence to terminate his parental rights. The district court may only terminate a parent’s rights when the party seeking to terminate the rights has shown the parent is unfit and will likely remain unfit for the foreseeable future and that it is in the best interests of the child to terminate the parent’s rights. K.S.A. 2013 Supp. 38-2269(a), (g)(1). Further, a parent’s rights may be terminated only when the evidence supporting it is especially strong: under tire statute, the evidence must be “clear and convincing.” K.S.A. 2013 Supp. 38-2269(a). To be clear and convincing evidence, the facts must be highly probable. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
We review a district court’s decision to terminate a parent’s rights by asking whether a rational factfinder could have found it highly probable that the parent’s rights should be terminated. In re K.W., 45 Kan. App. 2d 353, Syl. ¶ 1, 246 P.3d 1021 (2011). Because the district court — which is charged with finding the facts — terminated Father’s rights, we review the evidence in the light most favorable to that determination. See 45 Kan. App. 2d 353, Syl. ¶ 1. Further, in reviewing the district court’s decision, we may not reweigh the evidence, judge the credibility of witnesses, or redetermine factual questions. In re B.D.-Y., 286 Kan. at 705.
1. Clear and Convincing Evidence Established Fathers Unfitness and Showed that His Unfitness Was Unlikely to Change in the Foreseeable Future.
Father argues that the district court lacked evidence to hold that he was presently unfit to parent M.H and that his unfitness was unlikely to change in the foreseeable future. The district court may base its finding of unfitness on one of several bases outlined by the legislature. See K.S.A. 2013 Supp. 38-2269(a)-(c). If supported by clear and convincing evidence, a single statutory basis for unfitness can support terminating a parent’s rights, though courts should consider all applicable factors. K.S.A. 2013 Supp. 38-2269(f). See In re B.A.D., No. 90,973, 2004 WL 556928, at *1 (Kan. App. 2004) (unpublished decision).
In addition to finding that clear and convincing evidence supported one or more statutory bases for terminating Father’s rights, the district court also had to find that Father’s unfitness to parent was unlikely to change in the foreseeable future. K.S.A. 2013 Supp. 38-2269(a). The foreseeable future is examined from the perspective of a child because children and adults have different perceptions of time and children have a right to permanency within a time frame reasonable to them. In re M.B., 39 Kan. App. 2d 31, Syl. ¶ 9; In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008).
The district court found that five statutory bases supported terminating Father’s parental rights and were not likely to change in the foreseeable future: (1) his conviction of a felony and his imprisonment; (2) the failure of reasonable efforts by social-service agencies to rehabilitate his family; (3) his lack of effort to adjust his circumstances, conduct, or conditions to meet M.H.’s needs; (4) his failure to provide M.H. care in his home when he had the ability to do so; and (5) his failure to carry out a court-approved plan for reintegrating M.H. into his home. See K.S.A. 2013 Supp. 38-2269(b)(5), (7)-(8), (c)(1) and (3).
Under tire first reason that the court found Father unfit — conviction of a felony and imprisonment — Father argues that even though he did commit a felony and was imprisoned, the court erred by concluding that this made him unfit because: (1) his primary felony was committed over 20 years ago; (2) the felony didn’t relate to his parenting skills; and (3) the court didn’t consider his incarceration a mitigating factor in his ability to comply with the other requirements for reintegration. See K.S.A. 2013 Supp. 38-2269(b)(5). But Father fails to note the evidence that supported tire district court’s decision, which is clear and convincing.
First, though Father is correct that his initial felony was committed over 20 years ago — in 1987 — he has been paroled on this felony numerous times but then sent back to prison several times for failure to abide by his parole’s conditions. This includes the violations that put him back into prison after M.H. was born, which included drug abuse and the commission of a new crime (auto burglary). Father isn’t a one-time offender; he has spent the majority of his adult life — more tiran 26 years — in prison.
Second, though a felony conviction that related to parenting ability might increase the weight the court gives this factor, the court is not required to give Father special consideration just because the felony he committed was unrelated to his parenting skills. In fact, under Kansas law, simply committing a felony and being imprisoned can constitute the sole basis for a finding of unfitness, regardless of the circumstances of the crime. K.S.A. 2013 Supp. 38-2269(b)(5), (f); see In re M.D.S., 16 Kan. App. 2d 505, Syl. ¶ 4, 825 P.2d 1155 (1992).The termination-of-parental-rights statute refers only to felonies generally and doesn’t require the crime to be related to parenting to terminate a parent’s rights under this basis. K.S.A. 2013 Supp. 38-2269(b)(5), (f).
Third, even though Father is correct that incarceration may be considered a mitigating factor, it’s up to the district court how to consider a person’s incarceration within the facts of the case. In re M.D.S., 16 Kan. App. 2d at 509-11. In some cases, incarceration might be cause to excuse a parent’s failure to complete certain tasks toward reuniting with a child. In other cases, incarceration maybe considered a significant negative factor, such as where it has impeded the development of a relationship between the parent and the child, where the parent has been incarcerated for the majority of the child’s life and the child spent the time in the State’s custody, and where the incarceration would cause further delay in the proceedings that isn’t in the child’s best interests. 16 Kan. App. 2d at 509-11.
Here, the district court properly considered Father’s incarceration a negative factor. Father’s incarceration had significantly impacted his relationship with M.H.; Father had been incarcerated for the overwhelming majority of M.H.’s life; and waiting for Father’s incarceration to end would have delayed die resolution of M.H.’s case, with no certainty that Father would ever be available to parent her. Even after Father completed die sentence he was serving at the time of the court’s hearing, he still had a 16-month sentence in the auto-burglary case.
A rational factfinder could therefore find it highly probable that Father’s rights should be terminated because he was unfit to parent M.H. due to his incarceration. The court also could find it highly probable that this condition was unlikely to change in die foreseeable future as viewed by his daughter, given the remaining sentence in the auto-burglary case and Fadier’s historic pattern of violating parole and returning to incarceration.
The second basis the district court relied on to find Father unfit was that the reasonable efforts of the social-service agency failed to rehabilitate the family. Father contends that the agency did not make reasonable efforts. See K.S.A. 2013 Supp. 38-2269(b)(7). He notes that the agency didn’t help him apply for Social Security income, did not tell him about M.H.’s involvement in speech therapy, did not send him pictures, did not locate programs for him to complete while incarcerated, and did not facilitate visitation with M.H. at the prison.
But the agency took substantial steps to rehabilitate the family. For instance, the family’s case-manager, Moss, visited Father monthly at the prison and wrote to him after he was transferred to a different facility. Moss testified that Father had never responded to the correspondence she had mailed him. Likewise, the agency arranged for M.H. to have visits with Father’s ex-wife, who he indicated he preferred as a placement for M.H. But his ex-wife didn’t regularly attend or schedule visitations and, as of the time of trial, had not formed a relationship with M.H. Also, the agency regularly held case-plan meetings that Father could attend by phone. Though the agency could perhaps have done more to help Father achieve his case-plan goals, we cannot find that Father’s failure to take the initiative to complete them himself or to ask for help in completing them was the agency’s fault. A rational fact-finder could have found it highly probable that the agency’s reasonable efforts failed to result in rehabilitation and that further efforts would be unlikely to do so in the foreseeable future.
The third basis on which the district court found that Father was unfit — Father’s lack of effort to adjust his circumstances, conduct, or conditions to meet the needs of M.H. — was also established by clear and convincing evidence. See K.S.A. 2013 Supp. 38-2269(b)(8). Father argues that he did change his circumstances— by completing inpatient drug treatment, by cooperating with the agency, by having clean drug tests, and by making arrangements for his ex-wife to assume custody of M.H.
But more evidence shows that Father didn’t change his circumstances to meet M.H.’s needs. For example, he committed another crime and violated his parole by using drugs after M.H. was born. While in prison, Father incurred numerous disciplinary violations, some of them serious. Had Father not violated prison rules on so many occasions, he could have been released from prison earlier, at which point reintegration with M.H. would have been more likely. Though we appreciate the progress Father did make toward changing his life, a reasonable factfinder could have found it highly probable that Father did not change his circumstances to better meet M.H.’s needs and would be unlikely to do so in the foreseeable future viewed from M.H.’s perspective.
The other two grounds on which the court terminated Father’s rights apply only in situations where the child has been living in an out-of-home placement. K.S.A. 2013 Supp. 38-2269(c). These two grounds allow a court to find a parent unfit if the parent failed to care for the child in his home when it was possible to do so and if the parent failed to comply with a reasonable reintegration plan. See K.S.A. 2013 Supp. 38-2269(c)(l'), (3). Father argues that neither of these grounds were supported by clear and convincing evidence because he argues that he did care for M.H. in his home when he could and that he had no court-approved reintegration plan to comply with.
Father is incorrect that he cared for M.H. in his home when he was able. In fact, testimony showed that M.H. spent as little as a single day or only as much as a week in Father’s care before she was taken into the State’s custody. Further, Father did not appear at the first two case-plan meetings to arrange a plan for quicker reintegration. After M.H. was removed from his care, Father abused drugs, violated a court order, and committed an auto burglary — actions that prevented him from regaining custody of M.H. even when he wasn’t incarcerated.
Similarly, while the agency may have failed to submit a case plan to the court for approval, Father knew what his reintegration tasks entailed but did not complete them. Father participated in a few case-plan meetings and made no objection to his case-plan tasks. Just before trial, Father’s main case-plan task was to remain in contact with the agency regarding M.H., but he failed to do even that. Thus, a rational factfinder could have found it highly probable that Father had failed to care for M.H. in his home when it was possible, that Father had failed to comply with a plan for reintegration, and that these conditions were unlikely to change in M.H.’s foreseeable future.
2. The District Court Did Not Abuse Its Discretion by Finding that Terminating Father’s Rights Was in M.H.’s Best Interests.
Father contends that even if the court had a statutory basis for declaring him unfit and was justified in holding that his unfitness was unlikely to change in the foreseeable future, it abused its discretion by finding that terminating his parental rights was in M.H.’s best interests.
Even after finding unfitness that is unlikely to change in the foreseeable future, a court must also determine that terminating the parent’s rights is in the child’s best interests before it can terminate those rights. K.S.A. 2013 Supp. 38-2269(g)(l). In making the best-interests determination, the court gives primary consideration to the child’s physical, mental, and emotional needs. K.S.A. 2013 Supp. 38-2269(g)(l).
The determination of what is in a child’s best interests is inherently a judgment call, so we review the decision for abuse of discretion. In re R.S., 50 Kan. App. 2d 1105, Syl. ¶ 2, 336 P.3d 903 (2014). A district court abuses its discretion only when it bases its decision on an error of fact or law or when its decision is so unreasonable that no one would agree with it. Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011); State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 2011), cert. denied 132 S. Ct. 1594 (2012).
Father specifically argues here that the district court abused its discretion by terminating his rights to M.H. when he had proposed a viable alternative — that his ex-wife could assume custody of M.H. He notes that his ex-wife is a licensed daycare provider and could facilitate a relationship between him and M.H.
The district court considered and rejected Father’s ex-wife as a potential placement for M.H. It noted that Father’s ex-wife had not pursued opportunities to have a relationship with M.H. In addition to the evidence mentioned by the district court, Father’s ex-wife agreed at trial that M.H. would be better off if she remained with her foster family. Father’s ex-wife also said that even if she did obtain custody of M.H., Father would not be able to live with them because she cannot ran a daycare if a felon resides at her home. A reasonable person could agree with the district court that Father s ex-wife was not a suitable placement for M.H.
Father also argues that the district court abused its discretion by terminating his rights to M.H. because the foster parents agreed to allow him to remain involved in M.H.’s life — which he argues is in her best interests. While maintaining some type of relationship may be in M.H.’s best interests, terminating Father’s rights allows M.H. to be adopted by her foster family and to have a permanent home. The district court held that M.H.’s best interests would be served by immediate placement in a safe and stable home, which the foster parents have proven that they can provide. A reasonable person could agree with the district court’s decision. We find no abuse of discretion in the district court’s conclusion that M.H.’s best interests would be met by terminating Father’s rights and allowing her foster parents, who have raised her since she was a week old, to adopt her.
We understand that these cases are difficult. “A parent may be labeled ‘unfit’ under tíre law even though he or she loves tire child and wants to do the right thing, which may be the case here.” In re A.A., 38 Kan. App. 2d at 1105. But our obligation is to provide final resolution within a reasonable amount of time viewed from M.H.’s perspective. See 38 Kan. App. 2d at 1105. While Father made some progress toward becoming a better parent- — -by undergoing drag and alcohol counseling, for example — his progress was insufficient under tire law and his undetermined prison-release date is too far in the future to ask M.H. to wait.
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Pierron, J.:
Daniel A. Crossett appeals his convictions for six counts of aggravated assault, two counts of endangering a child, and one count each of criminal damage to property, reckless driving, and failure to inform after a property accident. Crossett argues it was clear error for the trial court not to give a unanimity instruction for the counts of endangering a child. He also contends it was clear error for the trial court not to give a limiting, instruction concerning prior crimes evidence under K.S.A. 2013 Supp. 60-455. Last, Crossett raises an Apprendi issue for purposes of preserving federal review. We affirm.
On Monday morning, June 19, 2012, Joseph Evans was heading to work at Accent Pet Grooming in Lawrence. Evans was riding in Scott Dennett’s truck. Evans’ great niece (A.M.) and great nephew (J.D.M.) were asleep in the back seat. Dennett needed to pick up Haillie Courter at Lakeside Village to give her a tide to work as well. On the way, Evans got a call from Courter asking if they could give Kimberly Gardner a ride to work. Gardner also worked at Accent.
Evans said that when they drove into Lakeside Village, Gardner was sitting in the middle of tire street. She was upset and crying, and she said that Crossett was going to kill her. She repeated this in the truck. Soon thereafter, Courter also got in the backseat of the truck with A.M., J.D.M., and Gardner. As the truck headed down Ferguson Road toward Perry, Evans saw Crossett’s red van approaching at a high rate of speed.
Evans testified Crossett was swerving all over the road. Crossett pulled up next to Dennett’s truck and with his body half out the window, he yelled at them to pull over. Evans said at one point Dennett drove into the ditch to avoid a collision. Dennett eventually stopped the truck and Crossett began banging on the window and screaming, “I want Kim. I want Kim. I don’t want nobody else.” Evans thought die window was going to bréale. Evans yelled at Dennett to take off. Crossett quicldy jumped back in his van and chased them. Evans was on the phone with 911 during the incident.
Crossett approached the truck again. This time, Dennett stepped on the brakes and Crossett went around them, lost control of his van, and hit a gas station pump. However, Crossett backed up and gave chase again. Crossett repeatedly tried to force the truck off the road. Ultimately Dennett stopped the truck and Crossett angled his van so the truck could not leave. Crossett came to Evans’ window again. Evans told Crossett he was on the phone with 911 and they told him not to let Crossett in the truck or to let anyone leave the truck until the police arrived. Evans thought Crossett had tried to run them off the road at least 20 times and if Dennett had not stopped the truck, Crossett would have hit it.
Dennett tried to leave one more time, but Crossett quickly moved his van to block their path. Dennett struck tire driver s side door of Crossett’s van. The police arrived and Evans gave a written statement consistent with his testimony. During the trial, the State played the 911 call tapes for the jury. They heard Gardner say she wanted out of the truck. Evans said Gardner was upset and he concluded she wanted out of the truck so Crossett would not cause any more trouble. Evans knew of the troubled past between Gardner and Crossett and also about their drug use.
Crossett claimed this case was not about a jealous and abusive husband who chased down a truck with his wife as a passenger and then tried to run the truck off the road in order to get it to stop. Instead, Crossett testified he and Gardner had been heavily abusing drugs before the incident and she was depressed and suicidal. Crossett testified Gardner had a history of psychiatric problems and drug overdoses that have caused her to be hospitalized. Crossett said he pursued the truck to plead with Gardner to go to tire hospital again. Crossett said he never tried to run the truck off the road. Instead, he testified the truck actually hit his van twice, once when it bumped him from the back and sent him into the gas pump; and again when they were stopped the final time and Den-nett hit the driver s side door of the van. Crossett claimed he did not know A.M. and J.D.M. were in the back seat until tire final stop when Courier was yelling at him, “Quit trying to run us off the road. We have lads in here.”
Gardner testified she and Crossett were married by common law for 12 years. She said Crossett was a jealous man. Gardner had snuck out of the house that morning when she thought Crossett was asleep. Gardner had told Crossett they were finished and she was not coming back. The two had argued the night before and Gardner feared for her safety so she did not want Crossett to know she was leaving. Gardner told everyone in Dennett’s truck, “Go, go, go. He’s going to kill me if he catches you .... We need to go now.” Gardner confirmed that Dennett had to repeatedly avoid Crossett’s van or they would have been hit. Gardner said she wanted out of the truck because she was putting everybody’s life in danger, it was scaring the children, and Crossett would then leave the truck alone. Gardner testified they yelled at Crossett that kids were in the truck. Gardner told officers she had used meth-amphetamines with Crossett the night before and she was probably coming down off the drugs.
The State charged Crossett with six individual counts of aggravated assault with a deadly weapon involving Gardner, Dennett, Evans, Courier, A.M., and J.D.M, severity level 7 person felonies; two counts of aggravated endangering a child (A.M. and J.D.M.), severity level 9 person felonies; and one count each of criminal damage to property, a severity level 9 nonperson felony, reckless driving, an unclassified misdemeanor, and failure to inform interested persons of a vehicle accident involving unattended property, a class C misdemeanor.
The jury convicted Crossett of tire six counts of aggravated assault with a deadly weapon, criminal damage to property, reckless driving, and failing to provide certain information after an accident. The jury did not convict Crossett of aggravated endangering a child, but convicted him of two counts of the lesser crime of endangering a child. Based on Crossett’s extensive criminal history, the trial court sentenced him to 29 months’ imprisonment for the first count of aggravated assault and then a consecutive sentence of 12 months’ imprisonment on the second count of aggravated assault. For tire remaining counts of aggravated assault, the trial court entered concurrent sentences of 12 months. The court also ordered concurrent sentences of jail time of 12 months for endangering a child, 6 months for criminal damage to property, 30 days for reckless driving, and 30 days for failure to inform after a property accident.
Crossett appeals.
Crossett first argues on appeal that it was clear error for the trial court not to give a unanimity instruction for the two counts of aggravated child endangerment. He argues the juiy could have relied on two separate acts in convicting him of child endangerment.■ (1) attempting to run the truck off the road, or (2) causing a collision by moving his van to block the truck after the vehicles had come to a stop. Crossett claims that without a unanimity instruction it is unclear which act the jury relied on and the jury would likely have been unable to reach a unanimous verdict if the instruction had been given.
Whether the elements of a crime could have been established by one of many acts or whether the crime involved a single continuous act is a question of law over which this court has unlimited review. State v. Voyles, 284 Kan. 239, 244, 160 P.3d 794 (2007). Under Kansas law, a defendant is entitled to a unanimous jury verdict. K.S.A. 22-3421; State v. Stevens, 285 Kan. 307, 313, 172 P.3d 570 (2007). This means that in a case where multiple, several, and distinct acts are alleged and any one of the acts could constitute the charged crime, either the State must instruct the jury on which act it is relying for the charge or the court must give an instruction to the jury that they must all unanimously agree on the specific act constituting the charged crime. State v. Colston, 290 Kan. 952, 968, 235 P.3d 1234 (2010). This instruction protects the unanimity of a verdict because without such an election or instruction, jurors could convict a defendant without unanimous agreement on which act constituted the charged crime.
We review a claim that the trial court should be reversed because it failed to give a unanimity instruction in three steps. See State v. King, 297 Kan. 955, 978-84, 305 P.3d 641 (2013). First, as a threshold matter, the appellate court reviews the entire record to determine whether the case involved multiple acts or a unified course of conduct. Voyles, 284 Kan. at 244. If this court finds the defendant’s alleged conduct was unitary, then the analysis ends and the trial court is affirmed. 284 Kan. at 244. If, however, the defendant’s actions could have given rise to multiple counts of the charged crime, then it is a multiple acts case and this court proceeds to the next step of the unanimity error analysis. 284 Kan. at 244.
In the second step of the analysis, we look to see whether an error occurred. 284 Kan. at 244-45; accord Colston, 290 Kan. at 968. If tire State did not inform the jury as to which act it should rely upon during deliberations and the trial court did not instruct tire jury that it must unanimously decide which specific act supported the conviction, error exists. King, 297 Kan. at 979.
In the final step, this court looks to see whether the error requires a reversal of the trial court’s decision. 29,7 Kan. at .979. In doing so, this court applies the “clearly erroneous” provision of K.S.A. 2013 Supp. 22-3414(3) and undertakes a results-based analysis. Voyles, 284 Kan. at 245-47; see State v. Trujillo, 296 Kan. 625, 631, 294 P.3d 281 (2013). If this court is convinced that the jury would have reached a different verdict had the instruction error not occurred, then tire error is reversible. King, 297 Kan. at 980 (citing Trujillo, 296 Kan. at 631).
For the threshold determination, we must decide whether Crossett’s conduct was part of a single course of conduct or if it was composed of separate and distinct acts. King, 297 Kan. at 980-81. There is no single test for determining whether a multiple acts case exists. State v. Castleberry, 48 Kan. App. 2d 469, 484, 293 P.3d 757, rev. granted 298 Kan. 1204 (2013). “[R]ather tire court must look to tire facts and the theory of the crime as argued to determine whether a jury verdict implicates unanimity issues.” 48 Kan. App. 2d at 484 (citing State v. Allen, 290 Kan. 540, Syl. ¶ 2, 232 P.3d 861 [2010]). Four factors assist in making this determination: “ ‘(1) whether the acts occur at or near the same time; (2) whether the acts occur at the same location; (3) whether there is a causal relationship between the acts, in particular whether there was an intervening event; and (4) whether there is a fresh impulse motivating some of the conduct.’ ” King, 297 Kan. at 981 (quoting State v. Schoonover, 281 Kan. 453, 503, 507, 133 P.3d 48 [2006]).
Under the first Schoonover factor, we must consider Crossett’s actions and determine whether they occurred at or near the same time. The time frame of his event was approximately 15 minutes from the time Dennett left Lakeside Village until police arrived at the scene. Evans testified they were stopped for “tire longest five minutes of my life” before the police arrived. Here, the actual chase took approximately 10 minutes and this relatively short time frame points to Crossett’s actions being a single continuous course of conduct.
Under the second Schoonover factor, we next consider whether Crossett’s actions occurred at the same location. The chase in this case covered approximately 7 miles on Ferguson Road. The fact that the alleged acts took, place at multiple locations points to Crossett’s actions being a. multiple acts situation.
Under the third Schoonover factor, we consider whether Crossett’s actions all had a causal relationship or whether there was an intervening event. In this case, there was no intervening act to separate Crossett’s actions. From the time Crossett began the chase down Ferguson Road, he was continually engaged with Den-nett’s truck in his attempt to get Dennett to pull over. Although Crossett was temporary sidetracked by hitting the gas pump, and there was an intermediate stop, Crossett’s actions still constituted a continual course of conduct with no intervening events.
Under the fourth Schoonover factor, we consider whether some of Crossett’s actions were motivated by a “fresh impulse.” Crossett claims he had a fresh impulse when he realized there were children in tire back seat of the truck. Crossett’s testimony is the only evidence of this defense. Certainly, Crossett can make this claim, but there is no supporting evidence. See State v. Anderson, 287 Kan. 325, 331, 197 P.3d 409 (2008) (A defendant is entitled to an instruction on his or her theory of the case even though the evidence thereon is slight and supported only by the defendant’s own testimony.). Although Crossett’s actions can be broken down into natural breaks — first stop, gas station pump accident, final stop— Crossett’s impulse remained the same. That impulse was his testimony that he was concerned for the safety of his wife because of her drug overdose and she needed to go to a hospital. There is no evidence he ever expressed concern for anyone but his wife. From the time he engaged the truck until the time the police arrived, this was a single continuous action, and there was no fresh impulse.
In the myriad of multiple acts cases in Kansas jurisprudence, several of them are relevant for application of the Schoonover factors to the present case. In State v. Kesselring, 279 Kan. 671, 112 P.3d 175 (2005), the Kansas Supreme Court addressed whether a unanimity jury instruction was required for an aggravated kidnapping charge. In that case, the defendant had ordered the victim out of his house at gunpoint and into the car the defendant was driving; the victim had briefly escaped from the car at a yield sign but was ordered back at gunpoint. The defendant then ordered the victim out of the car before shooting and killing him. Kesselring held that the kidnapping incident “was not susceptible to dissection into further components that would constitute multiple acts; rather, it was a continuous incident that cannot be factually separated. Therefore, we find this was not a multiple acts case and no multiple acts instruction was necessary to ensure that the jury’s verdict was unanimous.” 279 Kan. at 683.
Likewise, in State v. Staggs, 27 Kan. App. 2d 865, 9 P.3d 601 (2000), a defendant convicted of aggravated battery argued on appeal that the battery charge could have been established when he kicked the victim or when he punched the victim with his fist. In rejecting his multiple acts argument on appeal, this court noted that “[ojnce defendant initiated the altercation, no break in the action of any length occurred, and the confrontation continued until defendant broke the victim’s cheekbone. Simply put, the evidence established a continuous incident that simply cannot be factually separated.” 27 Kan. App. 2d at 868.
In State v. Hilson, 28 Kan. App. 2d 740, 20 P.3d 94 (2001), within a 30-minute time frame, the defendant committed two acts: he threatened to have T.L. (his friend) shoot the victim and threatened to have T.L. hit her. The court held both actions had the same objective — to coerce the victim to go with die defendant to Wichita. Despite this extended time period, the Court of Appeals concluded: “The conduct in question does not constitute multiple acts.” 28 Kan. App. 2d at 743.
A road-rage case that seems particularly apropos is State v. Bischoff, 281 Kan. 195, 131 P.3d 531 (2006). Mary Frayser was driving her Honda Accord in a construction zone on Interstate 35 in Salina. Bischoff came up quickly on Frayser in his semi-trailer and traveled closely behind her. He flashed his headlights and honked his horn. Bischoff continually slowed down and then sped up to the rear of her car during the 8 miles that she traveled south in the construction zone. Frayser stated she was traveling approximately 60 miles per hour, the posted speed limit in the construction zone.
Bischoff followed Frayser when she exited and then drove around her car, nearly hitting it. Then Bischoff forced Frayser to slam on her brakes to avoid hitting the semi. Bischoff approached Frayser’s car and yelled: “You know what a F’n truck like that can do to a F’n car like this?”; “Gan’t you go the F’n speed limit?”; and “Get out of the F’n car, I’m going to kill you.” Frayser began honking her horn for help. As he drove away, Bischoff made an obscene hand gesture and yelled at Frayser. A jury convicted Bischoff of aggravated assault and criminal threat.
In the State’s closing argument, the prosecutor argued that Bis-choff was guilty of aggravated assault because his intentional actions placed Frayser in reasonable apprehension of immediate bodily harm not only while on the interstate, but also through his cutting off her car on the exit ramp. In State v. Bischoff, No. 91179, 2005 WL 1089035, *12-13 (Kan. App. 2005) (unpublished opinion), the Court of Appeals affirmed the criminal threat conviction, but it reversed and remanded the aggravated assault conviction. It held that Bischoff s act of following Frayser on to the exit ramp was a separate and distinct act from his actions while on the interstate. Accordingly, the court held that the trial court erred in refusing to give a unanimity instruction.
The Supreme Court reversed the Court of Appeals. The Bischoff court relied on Kesselring, Staggs, and Hilson in concluding that Bischoff had a design or objective. He acted on that objective to express his extreme displeasure with Frayser’s driving and it soon escalated into road rage lasting approximately 8 minutes. 281 Kan. at 203. The Bischoff court noted defense counsel’s comment at oral argument that “if the prosecutor had charged two counts of aggravated assault, i.e., one for Bischoff s conduct on the interstate and the other after he followed Frayser onto the exit ramp, she would have argued multiplicity.” 281 Kan. at 203-04. The Bischoff court concluded this was not a multiple acts case and no unanimity instruction was necessary. 281 Kan. at 204.
After considering Crossett’s actions within the context of the four factors set out in Schoonover, and the factual scenarios of Bischoff, Kesselring, Staggs, and Hilson, Crossett’s actions were not multiple acts but constituted one single continuous course of conduct. Crossett’s testimony failed to establish any meaningful break in the action that would establish separate acts. Although the events transpired over several miles, there were no breaks in the sequence of events sufficient to establish separate criminal acts. Similar to Bis-choff, if the State had charged Crossett with separate counts of aggravated child endangerment based on events before and after the final stop, defense counsel would undoubtedly be raising a claim of multiplicity. The incident here was not susceptible to dissection into further components that would constitute multiple acts; rather, it was a continuous incident that cannot be factually separated. As a result, it was not clearly erroneous for the trial court to not give a unanimity instruction because Crossett’s case did not involve multiple acts.
Next, Crossett argues it was clear error for the trial court not to give a limiting instruction for evidence of his past abusive behavior towards Gardner.
No party may challenge a trial court’s giving or failure to give an instruction unless that party objects before the jury retires for deliberations, stating distinctly the matter to which the party objects and the grounds for the objection. In the absence of an objection, the claimed error is reversible only if the instruction or the trial court’s failure to give the instruction was clearly erroneous. K.S.A. 2013 Supp. 22-3414(3); State v. Smyser, 297 Kan. 199, 204, 299 P.3d 309 (2013).
Our Supreme Court has further stated:
“To establish that the giving or failure to give an instruction was clearly erroneous, tire reviewing court must determine whether there was any error at all. This requires demonstrating that giving tire proposed instruction would have been both legally and factually appropriate, employing an unlimited review of the entire record. [Citation omitted.] And if error is found on that basis, then the court moves to a reversibility inquiry in which it assesses whether it is firmly convinced the jury would have reached a different verdict had the instruction been given. The defendant maintains the burden to establish the degree of prejudice necessary for reversal. [Citation omitted.]” State v. Littlejohn, 298 Kan. 632, 646, 316 P.3d 136 (2014).
The relevant provisions of K.S.A. 2013 Supp. 60-455 state:
“(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person’s 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.
“(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, 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.”
During the state’s case-in-chief, testimony was presented by Evans in the form of general statements about the abusive relationship between Crossett and Gardner. Evans had seen bruises on Gardner’s arms, and he had told Gardner she needed to get out of the relationship. Crossett states this evidence may have been admissible to prove a material fact, i.e., the victims’ reasonable apprehension of immediate bodily harm due to their knowledge of the abuse. However, Crossett argues the evidence was not admissible to prove propensity, i.e., that he was likely to act violently during foe incident in question, and foe trial court should have given the jury a limiting instruction that foe evidence of abuse was not admissible to prove propensity. Crossett argues this evidence prejudiced the jury and the trial court should have given foe limiting instruction.
In State v. Breeden, 297 Kan. 567, 304 P.3d 660 (2013), foe court held that a contemporaneous objection to other crimes evidence was not required to preserve a jury instruction issue on appeal. See 297 Kan. at 579-80. The Breeden court found the defendant did more than assert an evidentiary argument as an instructional issue as in State v. RojasMarceleno, 295 Kan. 525, 285 P.3d 361 (2012). Breeden, 297 Kan. at 580. In Breeden, the defendant argued the trial court “ ‘should have instructed foe jury that evidence has been admitted tending to prove that the defendant committed crimes other than the crime charged, and that the juiy was not to consider that evidence of Mr. Breeden’s propensity to commit a criminal act.’ ” 297 Kan. at 580. The Breeden court then applied foe clearly erroneous standard to find that foe failure to give a limiting instruction was error, but it was not reversible error. 297 Kan. at 581.
The State is correct that defense counsel was the party that elicited several specific prior bad acts to foe jury. During Evans’ cross examination, defense counsel elicited a quote from Evans that Gardner said, “He’s kept me hostage for foe last day,” and that had also happened to her before. Also, during Gardner’s cross-examination, defense counsel elicited testimony from Gardner that Crossett would not threaten her in public but that “the night before he had me sitting in a chair. He had a fire log like this thick (indicating). He told me if I moved, he would bash my head in. So I knew he was angiy at me from the time he woke up.” Last, during the defense’s case-in-chief, defense counsel asked Crossett if he had ever hurt Gardner. Crossett testified, “Yes.” Defense counsel asked in what way, and Crossett responded, “Well, Kim and I fought a lot.” A defendant who introduces evidence of prior bad acts during his or her own direct examination waives the right to a limiting instruction. State v. Gunby, 282 Kan. 39, 57-58, 144 P.3d 647 (2006); State v. Chatmon, 234 Kan. 197, 203, 671 P.2d 531 (1983).
Even if tire trial court erred by failing to give the limiting instruction, we are not firmly convinced that the jury would have reached a different verdict had the instruction been given. Thus, the trial court’s failure to give the instruction was not clearly erroneous. See Littlejohn, 298 Kan. at 646. We add that even if we were not applying the clearly erroneous standard of review, we would still conclude that the trial court’s failure to give the limiting instruction was harmless error under foe facts of this case. There is no reasonable probability the error affected the outcome of the trial in light of the entire record and foe evidence of Crossett’s attempts to run Dennett off the road, the fear of the occupants in Dennett’s truck, and the collision with the gas pump. See State v. Ward, 292 Kan. 541, Syl. ¶ 6, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). The trial court’s failure to give the limiting instruction did not affect Crossett’s substantial rights, and he is not entitled to a new trial based on this claimed error.
Last, Crossett contends the trial court violated his rights under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In particular, he argues foe trial court could not consider his criminal history unless it was proven to a juiy beyond a reasonable doubt. Nevertheless, Crossett concedes foe Kansas Supreme Court has previously decided this issue and states he simply wishes to preserve the claim for federal review. See State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).
We are bound to follow precedent from the Kansas Supreme Court unless there is an indication that it is departing from its position. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). Recently, our Supreme Court declined to depart from its holding in Ivory. See State v. Frierson, 298 Kan. 1005, 1022, 319 P.3d 515 (2014). Thus, we conclude the trial court appropriately considered Crossett’s criminal history in determining his sentence.
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Schroeder, J.:
Gregoiy Vincent Keenan appeals the denial of his motion to suppress the evidence obtained when officers entered his house without a search warrant. We conclude the officers had probable cause plus exigent circumstances while investigating the possible violation of a protection from abuse order (PFA) and the crime of driving under the influence of alcohol (DUI) to enter Keenans house after the investigation had been initiated on the driveway of the house. Finding no error, we affirm.
December 23, 2010
Around 11 p.m. on December 23, 2010, Keenan arrived at Julie Hynes’ house in Parkville, Missouri, to pick up his son. Hynes, the child’s grandmother, testified Keenan was “stumbling around, talking a little bizarre,” swaying, and smelled of alcohol.
Keenan then picked up his sleeping child and took him outside into the sleeting weather. Hynes drought Keenan might be taking the child to the boy’s motiier’s house two blocks away; however, Keenan told Hynes as he was leaving he was taking the child to his house in Lenexa, Kansas. Hynes was concerned and called die police to report a possible DUI.
Officer Betsy Madl of the Lenexa Police Department was dispatched to Keenan’s house. Madl was informed a person might be operating a vehicle with a child inside while intoxicated. Madl was also told by dispatch a protection from abuse order (PFA) may have been violated. It was later determined at the police station the PFA had been dismissed.
Madl was at Keenan’s house when Keenan pulled into his driveway. Madl testified, upon her contact with Keenan, she “immediately noticed a strong odor of a consumed alcoholic beverage emitting from his person or vehicle . . . and while carrying [his son] into the house, he stumbled several times.” However, on cross-examination, Madl admitted she observed no traffic infractions or errors in driving in the very short time she observed Keenan driving down the street and into his driveway.
At the time Madl made contact, Keenan was talking on his cellphone. Keenan asked if he could go inside and lay his son down, and Madl consented but remained in constant contact with Keenan. As Keenan walked to the house, Madl observed him have a hard time walking in a straight line or staying steady while carrying his son. Just prior to Keenan entering his house, Officer Jason Hinkle of the Lenexa Police Department arrived to assist Madl. The officers asked if they could enter the house. Keenan refused.
Despite Keenan’s refusal, the officers immediately followed him into the house. Madl testified a concern regarding the safety of die child and the possibility the evidence of DUI could be lost, destroyed, concealed, or tampered with once Keenan went inside the house. Hinkle corroborated diis concern, testifying Keenan could have simply started drinking again, thereby impairing the case they were investigating. Additionally, Hinkle testified that upon arriving at Keenan’s house, he believed there was a violation of a PFA and, therefore, probable cause to arrest for the violation.
Keenan claimed he had nothing to drink. Madl testified Keenan had bloodshot eyes, slurred speech, and Keenan’s statements were repetitive and not making much sense. Madl concluded, based on Keenan’s difficulty in walking and communicating, he was highly intoxicated and would have been unable to safely operate a vehicle. Hinkle testified Keenan had stumbled several times, his eyes were bloodshot, his speech was slurred, and there was “an overwhelming odor of alcohol.” On cross-examination, Hinkle admitted Keenan told him he had bad knees. However, Hinkle concluded Keenan was “significantly intoxicated and in no way capable of safely operating a motor vehicle.”
Keenan refused to perform field sobriety tests, so Hinkle placed him under arrest. Hinkle offered Keenan the opportunity to make arrangements for his son. Keenan proceeded to plug in his cell phone and head toward the kitchen, where a 12-inch butcher’s knife sat on the counter. Hinkle told Keenan to stay out of the kitchen, to which Keenan replied the officers were paranoid. Keenan continued to walk toward the knife, at which point Hinkle grabbed him by the collar to physically stop him. Hinkle testified Keenan then stated, “ T’m fucking Jersey, baby. I’ve taken care of more cops than you’ll know.’ ” Keenan was placed in handcuffs and transported to the police station, where he refused to submit to a breath test.
After Keenan’s arrest, Hinkle searched Keenan’s truck. Search of the truck revealed a half-empty bottle of whiskey, two full bottles of beer, and packaging from the alcohol. The whiskey bottle was in the front passenger seat, along with a bottle cap. The other alcohol and packaging were in the front passenger floorboard. Hin-kle testified the whiskey was within easy reach of the driver of the truck.
Keenan was charged with felony DUI, third offense, refusing a preliminary breath test, and transporting an open container in violation of K.S.A. 2010 Supp. 8-1567, K.S.A. 2010 Supp. 8-1012, and K.S.A. 2010 Supp. 8-1599, respectively.
Motion to Suppress Hearing
Keenan filed a motion to suppress the statements, observations, and all evidence that followed the officers’ entry into his house. At the hearing on Keenan’s motion, the State claimed probable cause with exigent circumstances existed to make a warrantless entry into the house to continue the DUI investigation. The State argued that allowing Keenan to go into the house without following him would have interfered with the time-sensitive nature of a DUI charge and would have allowed Keenan die opportunity to destroy or conceal the evidence by consuming more alcohol.
Keenan argued the police lacked both consent and probable cause. The allegation of being under the influence had been made from a caller in another county. The police did not observe traffic violations or have any other evidence of DUI until they got into the house and talked to Keenan. Therefore, Keenan argued a warrant was required to enter his house.
The State rebutted Keenan’s argument by pointing out Madl had testified she had contact with Keenan outside the house and noticed he smelled of consumed alcohol and was stumbling. In corroboration with the phone tip, the State argued there was enough evidence to support a need to investigate for a DUI. Keenan argued these observations were unrelated to his driving and did not allow warrantless entry into his house against his will.
The district court held the police had reasonable suspicion to conduct a DUI investigation and, under exigent circumstances, had a duty to enter Keenan’s house to do so. The district court noted, upon entering the house, the police obtained more facts which supported Keenan’s arrest for DUI. The district court, therefore, overruled Keenan’s objection and approved the warrantless entry into his house. At trial, Keenan also objected to the introduction of the evidence obtained within the house, the audio of Hinkle’s contact with Keenan, and the exhibits showing the alcohol from the truck. Keenan’s attorney phrased his objection as wanting to “preserve [his] client’s rights for the suppression issues .... My objection is stated in my motion to suppress, but I want to preserve that for today.”
A jury found Keenan guilty of DUI and transporting an open container. Keenan timely appeals.
Analysis
Keenan raises a single issue on appeal: Did the district court err in denying his motion to suppress the officers’ observations and Keenan’s statements after the officers entered the house without a warrant?
Did the District Court Err in Denying Keenans Motion to Suppress?
Keenan argues tire State failed to prove the officers had probable cause plus exigent circumstances to permit the warrantless entry into his house and the district court therefore erred in admitting tire evidence. As we consider Keenan’s argument, we must determine:
• Whether the issue was preserved for appeal;
• The applicable standard of review;
• If the officers had probable cause a crime had been or was being committed to follow Keenan into his house without his permission or a warrant; and
• If the warrantless entry of Keenan in his house was justified by probable cause with exigent circumstances.
Was the Issue Preserved for Appeal?
The State contends Keenan failed to make a timely objection at trial to the officers’ observations and their recitation of Keenan’s statements after the officers entered the house. Keenan did make two objections to the admission of evidence at trial based upon suppression grounds; however, Keenan’s objections were made af ter both officers had testified about their observations outside and inside the house at the time the exhibits were offered for admission. The district court overruled the objections and stated it would “maintain its previous rulings.”
Generally, any pretrial objection to the admission or exclusion of evidence must be preserved by contemporaneously objecting at trial under K.S.A. 60-404, which can be accomplished through a standing objection. See State v. Holman, 295 Kan. 116, 127, 284 P.3d 251 (2012); but see State v. Gaona, 293 Kan. 930, 956, 270 P.3d 1165 (2012) (characterizing contemporaneous-objection rule as a “prudential rather than jurisdictional obstacle to appellate review”). Our courts have, on occasion, refused to strictly apply the contemporaneous-objection rule in some contexts upon finding the underlying purpose for the rule has been satisfied. See, e.g., State v. Hart, 297 Kan. 494, 510-11, 301 P.3d 1279 (2013); State v. Spag-nola, 295 Kan. 1098, 1103, 289 P.3d 68 (2012); State v. Breedlove, 295 Kan. 481, 490-91, 286 P.3d 1123 (2012).
“When a pretrial motion to suppress is denied, the defendant must make a timely objection at trial to the introduction of the evidence, specifying the ground for the objection in order to preserve the issue for appeal.” State v. Alford, 257 Kan. 830, 840, 896 P.2d 1059 (1995) (citing State v. Toney, 253 Kan. 651, 656, 862 P.2d 350 [1993]). Here, Keenan did object to the admission of the officers’ testimony, although in an untimely manner. We recognize Keenan was slow in objecting to the evidence addressed in the motion to suppress, but he did object, and we find his objection was sufficient to preserve the issue for appeal.
Standard of Review
A district court’s decision on a motion to suppress is reviewed using a bifurcated standard. The appellate court reviews the district court’s findings to determine whether they are supported by substantial competent evidence. In reviewing the factual findings, the appellate court does not reweigh the evidence or assess the credibility of witnesses. The ultimate legal conclusion is reviewed using a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718(2013).
The State bears the burden of proof for a suppression motion. It must prove to the trial court tire lawfulness of a warrantless entry. See State v. Neighbors, 299 Kan. 234, Syl. ¶ 3, 328 P.3d 1081 (2014); State v. Morlock, 289 Kan. 980, 985, 218 P.3d 801 (2009).
Did the Officers Have Probable Cause to Believe a Crime Had Been or Was Being Committed?
Probable cause is defined as a quantum of evidence which leads a prudent person to believe an offense had been or was being committed. State v. Dunn, 233 Kan. 411, 414, 662, P.2d 1286 (1983). Probable cause exists where the officer’s knowledge of the surrounding facts and circumstances creates a reasonable belief the defendant committed a specific crime. “Probable cause is determined by evaluating the totality of the circumstances,” and “does not require an officer have evidence of every element of the crime. [Citations omitted.]” Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 515, 242 P.3d 1179 (2010).
Keenan argues the State failed to show the officers had probable cause for the search. Keenan also notes that at the motion to suppress hearing the State never suggested probable cause existed to enter the house without permission. Moreover, in its ruling, Keenan argues the district court specifically found reasonable suspicion existed to further the DUI investigation by entering the house, but it made no mention of probable cause and exigent circumstances. Because probable cause is a higher standard than reasonable suspicion, Keenan argues the State failed to meet the required standard to allow a warrantless search based upon probable cause with particularized exigent circumstances. See State v. Dugan, 47 Kan. App. 2d 582, 588-89, 276 P.3d 819 (2012) (citing Groh v. Ramirez, 540 U.S. 551, 559, 124 S. Ct. 1284, 157 L. Ed. 2d 1068 [2004]).
Here, the Lenexa police received a tip from a named informant that Keenan was possibly intoxicated and driving in bad weather with a child. The Kansas Supreme Court has held tips from known informants are more reliable than those from anonymous informants and these tips “may support a traffic stop.” State v. Slater, 267 Kan. 694, 700, 986 P.2d 1038 (1999); see City of Pratt v. Stover, 272 Kan. 279, 281-83, 32 P.3d 1143 (2001).
Madl approached Keenan to investigate the violation of a PFA and a possible DUI based on a known informant’s tip Keenan was possibly driving under the influence of alcohol. Madl smelled the strong odor of consumed alcohol coming from Keenan’s person and observed him having difficulties while walking to the house. Keenan also appeared to be intent on avoiding Madl and getting into his house as quicldy as possible. During the contact, Keenan asked to enter his house to put his son to bed. The officers had two choices, either keep him and his child outside or let Keenan enter his house and put his child to bed under their observation and control. At this point, the officers allowed Keenan to enter his house and requested permission for them to follow him into the house. Keenan then denied the officers’ request to enter his house, but the officers immediately followed him into the house.
The totality of the circumstances and evidence available to the two officers prior to entering Keenan’s house supports a finding of probable cause to arrest Keenan for violating a PFA and a possible DUI. The officers had information from dispatch and Hinlde’s police car’s onboard computer of a PFA violation. The officers also knew Keenan had been reported by a named informant to be possibly driving while intoxicated and he smelled of consumed alcohol, was stumbling as he walked to his house, and seemed intent on avoiding tire officers. The only evidence weighing in Keenan’s favor was the lack of any observed traffic infractions before the initial contact. Because Madl only saw Keenan pull into the driveway, this fact is of minimal value to Keenan. The officers had probable cause to arrest for a PFA violation and for a crime that had been committed in front of Madl since she observed Keenan operating his truck and the evidence of him being under the influence after he exited the truck and had contact with the officers.
Although the district court ruled there was sufficient reasonable suspicion to support the officers’ warrantless entry into Keenan’s house, the proper standard in this case is probable cause. See State v. Fewell, 286 Kan. 370, 382-84, 184 P.3d 903 (2008); State v. Mendez, 275 Kan. 412, 421, 66 P.3d 811 (2003). However, if a district court reaches the correct result, its decision will be upheld even though it relied upon the wrong ground or assigned erroneous reasons for its decision. State v. May, 293 Kan. 858, 870, 269 P.3d 1260 (2012).
Probable Cause with Exigent Circumstances to Enter Keenan’s House
Now that we have determined there was probable cause to arrest Keenan, we will consider whether exigent circumstances existed to justify the warrantless entry into Keenan’s house: tire possible loss, destruction, concealment of evidence and the doctrine of hot pursuit. “In reviewing the propriety of a warrantless entry, the court must consider the means of entiy, the criminal conduct at issue, and the claimed exigency to determine if the search or seizure avoids the constitutional prohibition of unreasonableness cast in the Fourth Amendment. [Citations omitted.]” Dugan, 47 Kan. App. 2d at 589.
“ ‘Exigent circumstances exist where the police officer reasonably believes there is a threat of imminent loss, destruction, removal, or concealment of evidence or contraband. In each case, the particular facts must be considered.’ ” Fewell, 286 Kan. at 384 (quoting State v. Houze, 23 Kan. App. 2d 336, 337, 930 P.2d 620, rev. denied 261 Kan. 1088 [1997]). However, the Kansas Supreme Court has emphasized the exigent circumstances exception to the warrant requirement does not include situations “ where only a mere possibility exists that evidence could be destroyed or concealed. [Citation omitted.]’ ” Fewell, 286 Kan. at 385 (quoting State v. Boyd, 275 Kan. 271, 274, 64 P.3d 419 [2003]). There is no “absolute test for the presence of exigent circumstances, because such a determination ultimately depends on the unique facts of each controversy.” United States v. Jones, 635 F.2d 1357, 1361 (D. Minn. 1980). Exigent circumstances must be based on what a reasonable law enforcement officer would conclude from the information available at the time of entry. Dugan, 47 Kan. App. 2d at 606.
Warrantless Entry
A warrantless entry is per se unreasonable unless it falls within a recognized exception to the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. Neighbors, 299 Kan. 234, Syl. ¶ 1.
“[Pjhysical entiy of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S. Ct. 2125, 32 L. Ed. 2d 752 (1972). “Consequently, rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” Illinois v. McArthur, 531 U.S. 326, 331, 121 S. Ct. 946, 148 L. Ed. 2d 838 (2001). Any warrantless entry is per se unreasonable unless it falls within one of the exceptions to the warrant requirement recognized in Kansas. See Neighbors, 299 Kan. 234, Syl. ¶¶ 1, 3; State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011). One such exception is when probable cause with exigent circumstances justify an immediate warrantless entiy. See Dugan, 47 Kan. App. 2d at 588-89 (citing Groh, 540 U.S. at 559, and six other United States Supreme Court cases).
One might argue the violation of a PFA and a possible DUI are minor offenses not justifying the warrantless entry into a defendant’s house based on exigent circumstances. The United States Supreme Court in Welsh v. Wisconsin, 466 U.S. 740, 104 S. Ct. 2091, 80 L. Ed. 2d 732 (1984), addressed the issue of a warrantless entry into Welsh’s house for a possible DUI. Welsh had run off the road, causing no damage to his car or himself. The driver behind him had observed Welsh driving erratically and pulled in behind Welsh’s car to stop him from leaving. The police were called, but before they arrived, Welsh had walked away from the scene. The witness told police officers the driver was either inebriated or very sick. During their investigation, the police officers realized the registered owner’s address was only a short distance away. The police officers went to Welsh’s house to investigate a possible DUI and did not have a warrant to enter Welsh’s house. Welsh’s granddaughter answered the door and the police officers entered to find Welsh asleep in his bed. Welsh was arrested for DUI. The Court found tire police officers’ entry into Welsh’s house was a violation of his Fourth Amendment right to be free from “unreasonable searches and seizures.” U.S. Const, amend. 4. The Court based its decision on Wisconsin’s definition of driving while intoxicated as a “noncriminal violation subject to a civil forfeiture.” 466 U.S. at 746. The underlying factor driving the Court in Welsh was the war-rantless entry into a house to arrest for a minor nonjailable traffic offense. 466 U.S. at 742.
In Kansas, the violation of a PFA and the crime of DUI are not minor nonjailable offenses as defined by our laws. Both offenses subject tire defendant to a potential jail sentence. See K.S.A. 2010 Supp. 8-1567; K.S.A. 2010 Supp. 21-3844; K.S.A. 60-3110. If we set aside the potential penalties for a PFA violation and look only at the crime of DUI, we find the punishment for a first offense ranges from a minimum of 2 days’ to a maximum of 6 months’ imprisonment; if the charge is for a third or fourth violation, it is a nongrid nonperson felony and could result in a maximum sentence of 1 year imprisonment in the county jail plus substantial fines and alcohol-related education classes. See K.S.A. 2010 Supp. 8-1567. Granted, at the time of entry into Keenan’s house, the officers did not know whether they were investigating a misdemeanor or felony DUI, but either one is a jailable offense in Kansas. Keenan was ultimately charged and convicted of a nongrid nonperson felony, with this being his third DUI offense. Since this was a jailable offense, Welsh does not preclude a warrantless entry in a DUI case, and we must look to see if any exigent circumstances justified the warrantless entry into Keenan’s house.
Here, there are two types of exigent circumstances to consider. The first is probable cause plus the prevention of loss, destruction, or concealment of evidence. Fewell, 286 Kan. at 384 (quoting Houze, 23 Kan. App. 2d at 337). The second is probable cause plus hot pursuit. Mendez, 275 Kan. at 421.
Loss, Destruction, or Concealment of Evidence
Keenan claims there were no exigent circumstances to allow a warrantless entry and search in his house. While Keenan recognizes the possible loss or destruction of evidence is a factor for consideration by the court under an exigent circumstances analysis, Keenan contends the State’s argument he could have consumed more alcohol once inside the house was mere speculation. Keenan points out the officers made no mention of seeing alcohol in the house, and Keenan never stated there was alcohol in the house. According to Keenan, this speculation, coupled with the lack of a particularized finding of exigent circumstances by the district court, makes the State’s exigent circumstances argument fail. See Dugan, 47 Kan. App. 2d at 588-89 (probable cause must be coupled with particularized, exigent circumstances to allow a warrantless entry of a private residence).
The State cites a list of factors a court can consider when determining whether exigent circumstances exist, including:
“(1) The time needed to secure a search warrant; (2) the reasonableness of the officers’ belief the evidence may be immediately lost; (3) potential danger to the officers guarding the site while awaiting a warrant; (4) whether those persons with possession of the evidence are aware of the officers’ presence; and (5) the ease with which the evidence might be destroyed or hidden.” 47 Kan. App. 2d at 605 (citing United States v. Moses, 540 F.3d 263, 270 [4th Cir. 2008]; United States v. Vega, 221 F.3d 789, 800 [5th Cir. 2000]).
When considering the fist of factors, we note four of the five factors support the officers’ action in this case to preserve the evidence based on exigent circumstances:
• Late at night, the ability to obtain a judicially approved search warrant could exceed the evidentiary window of time to obtain a breath, blood, or urine test.
• The testimony of the officers clearly reflects their concerns with Keenan being in the house alone and the potential loss or destruction of tire evidence.
• Keenan knew the officers were present.
• Finally, the evidence of DUI could easily be concealed, tampered with, or dissipated by Keenan’s ability to consume more alcohol if left alone in the house. There was no way for the officers to know if more alcohol was available in the house, but the officers’ concern was reasonable.
These four factors support exigent circumstances to justify the officers’ decision to maintain constant contact and .observation of Keenan by following him into the house.; ■. ■,
The State draws our attention to a Missouri case with similar facts where a defendant fled from a police stop for driving across the centerline of a road. The defendant drove to his house, pulled into the garage, and attempted to close the garage door behind him. The officer who was pursuing the defendant stopped the garage door from closing, knocked on the inside door, entered, and arrested the defendant. The Missouri appellate court affirmed the district court, noting the need to preserve evidence of the defendant’s blood-alcohol level, as it could have dissipated or been altered by the defendant imbibing more alcohol. City of Kirksville v. Guffey, 740 S.W.2d 227, 228-29 (Mo. App. 1987), cert. denied 485 U.S. 1035 (1988). In Guffey, the officer entered the house by stopping the garage door from closing after Guffey was already in his house. Here, the officers went into Keenan’s house at tire same time Keenan was entering to preserve the evidence of DUI and to address the child’s welfare with a possible PFA violation.
There is an absence of caselaw in Kansas to answer the question of whether preservation of blood-alcohol evidence creates a sufficient exigency to permit police to follow the driver into his or her house without a warrant. See Dugan, 47 Kan. App. 2d at 606 (citing State v. Legg, 633 N.W.2d 763, 772 [Iowa 2001] [loss or compromise of blood-alcohol evidence in DUI supports finding of exigency]; contra State v. Larson, 266 Wis. 2d 236, 251, 668 N.W.2d 338 [Wis. App. 2003] [loss of blood-alcohol evidence in DUI not exigency]). Other jurisdictions appear to be split on the matter. See People v. Thompson, 38 Cal. 4th 811, 825, 43 Cal. Rptr. 3d 750, 135 P.3d 3 (2006) (dissipation of blood-alcohol content may constitute exigent circumstances under particular facts); contra People v. Wehmas, 246 P.3d 642, 644 (Colo. 2010) (the potential dissipation of the defendant’s blood-alcohol content is not a sufficiently exigent circumstance to justify warrantless home entry). This split in authority does not indicate any particular trends in addressing the issue at hand. However, consistent in every case is a particularized case-by-case approach to determining whether exigent circumstances exist, as opposed to any bright-line rules. Thus, we must look to the totality of the circumstances facing the officers here as they approached, observed, and talked with Keenan as he was trying to avoid them using the need to put his son to bed in his house.
We pause to discuss Dugan and Keenan’s argument no particularized exigent circumstances existed to support a warrantless entry into his house. In Dugan, the officer was investigating a vehicle leaving the scene of a possible injury accident. The officer was notified by dispatch of the registered address for the vehicle. On the way to the house, the officer observed the vehicle meeting the description given pull into the garage of the house at the registered address. The officer exited her car and stopped the garage door from closing and entered the garage to start her investigation. With the vehicle in the garage, the officer was free to maintain a watch over die garage while a judicially approved search warrant was obtained. Tire panel found the evidence of a damaged vehicle would not be lost or destroyed within the reasonable amount of time to obtain a search warrant and, thus, did not create an exigent circumstance to justify a warrantless entry into the house. 47 Kan. App. 2d at 605-06.
While we recognize Dugan, we find it substantially different from the facts of this case. Madl and Hinlde were in direct contact with Keenan, working the investigation, as he was walking from his truck to his house. The officers did not follow Keenan into the house after he attempted to close the door, they went into the house at the same time he was entering to preserve the evidence of a crime they observed while outside the house. The officers knew they were investigating two possible crimes, one of which was DUI, and with the passage of time the evidence through breath, blood, or urine would be lost while a judicially approved search warrant is requested.
If Keenan entered the house alone, he could have locked the door behind him, further denying the officers access to the house. Experience dictates there was more than a possibility Keenan would conceal, dissipate, or destroy the evidence if he had gone into tire house alone. See Fewell, 286 Kan. at 384-85. Thus, we are persuaded from the totality of the circumstances the loss, destruction, or concealment of evidence created exigent circumstances to justify the officers’ warrantless entry into Keenan’s house.
Hot Pursuit
Keenan argues even though hot pursuit is a recognized exigent circumstance, it fails under these facts. Here, Keenan argues he was not fleeing from police, there was no warrant for his arrest, and there was no probable cause to enter his house. Keenan points out Madl even gave him permission to enter his house without taking him into custody, further demonstrating there was no hot pursuit. Thus, Keenan argues the hot pursuit doctrine does not apply and was not found to exist by the district court.
The State cites United States v. Santana, 427 U.S. 38, 96 S. Ct. 2406, 49 L. Ed. 2d 300 (1976), where the Supreme Court ruled police were justified in pursuing a suspect from the dooiway of her house, a public place, to the inside of her house. The officers observed the defendant standing in her doorway with narcotics. The officers approached the house and identified themselves, and she retreated into the house. The officers followed through the open door and arrested her. The Court held the brevity of the chase did not render it less of a “ ‘hot pursuit,’ ” and the Court noted a suspect cannot defeat an arrest “which has been set in motion in a public place ... by the expedient of escaping to a private place.” 427 U.S. at 42-43. The State argues Santana applies in the case at hand, as Keenan could not simply retreat into his house to avoid arrest.
The Kansas Supreme Court has consistently recognized hot pursuit as an example of exigent circumstances and has favorably cited Santana. See State v. Thomas, 280 Kan. 526, 533-37, 124 P.3d 48 (2005); Mendez, 275 Kan. at 421. Here, officers had probable cause to arrest Keenan based on a possible PFA violation, a tip from a named informant of a possible DUI, the strong odor of consumed alcohol Madl detected on Keenan, and Keenan’s stumbling and swaying as he walked from his truck to the house. Madl was at Keenan’s house waiting on him to arrive to investigate a possible DUI and PFA violation. After Madl approached Keenan on the driveway, Hinkle arrived to assist. The investigation proceeded with Keenan and the officers walking toward the house. The officers’ contact with Keenan, reflects their control of the stop. Al though the officers had not arrested Keenan, by Keenan asking permission to enter his own house, Keenan submitted to the officers’ authority and control of his movement and recognized he was restricted by their presence.
As stated earlier, the officers had two choices — keep Keenan out of his house or allow him to enter the house to put his child to bed. They chose to protect the child’s welfare but kept Keenan under their control by following him into the house. Keenan was using his need to put his son to bed as a reason to keep moving toward the house and avoid the officers. The fact Keenan was trying to retreat into his house, particularly in light of his request to put his young son to bed, does not protect him from an arrest that was “set in motion in a public place.” See Santana, 427 U.S. at 43.
Keenan first encountered Madl outside his house, and while the pursuit may not have been the equivalent of an action movie, the United States Supreme Court has still deemed the short trip from the doorway of a house to the interior to qualify as hot pursuit. 427 U.S. at 42-43. Therefore, the district court did not err in determining the officers had probable cause plus exigent circumstances to enter Keenan’s house.
Conclusion
There was sufficient competent evidence to support the district court’s legal conclusion in denying Keenan’s motion to suppress. The fact the officers had a valid tip Keenan was possibly driving under the influence of alcohol with a child in the vehicle, when coupled with the circumstances of the officers’ initial contact with Keenan outside his house, were sufficient to establish probable cause to arrest Keenan for DUI. While carrying his child after requesting to put him to bed, Keenan continued walking into the house, which, under the facts of this case, created probable cause plus exigent circumstances for the officers to enter tire house with Keenan to protect the evidence of DUI from being lost, destroyed, or concealed.
With this holding we are not establishing a bright-line rule to approve the warrantless entry into the house of a driver suspected of being under the influence of alcohol. When considering the totality of the circumstances, we are only saying the facts of this case reflect the officers’ warrantless entry into Keenan’s house was justified and reasonable. Finding no error, we affirm.
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Leben, J.:
George Garcia obtained a default judgment against his former attorney, Charles Ball, when Ball failed to file an answer to Garcia’s lawsuit for more than 4 months. Ball then asked the district court to set aside the default judgment, claiming that his failure to answer the suit had been caused by excusable neglect. The district court granted that motion.
Garcia has appealed, contending that the district court abused its discretion because Ball didn’t provide any factual basis to support his excusable-neglect claim. We agree that Ball failed to do so, and we conclude that a district court cannot grant relief from judgment based on excusable neglect when the party seeking relief has failed either to explain what facts constituted excusable neglect or to provide any evidence to support that claim. We therefore reverse the district court’s judgment setting aside the default judgment previously entered against Ball.
Factual and Procedural Background
Ball represented Garcia in a criminal case in which Garcia was on probation. In a September 2008 hearing in that case, Garcia stipulated that he had violated his probation. The district court revoked his probation and ordered Garcia to serve his underlying prison sentence.
The district court then entered a written order — approved by Ball — that indicated that Garcia would be subject to postrelease supervision for 12 months after his release from prison. That appears to have been in error; Garcia shouldn’t have been subject to postrelease supervision at all. See K.S.A. 22-3716(e). That’s important because a person who is on postrelease supervision who commits a new felony goes back to prison for whatever remains of the postrelease-supervision period. See K.S.A. 75-5217(c).
Within 2 weeks of the probation-revocation hearing, the Kansas Department of Corrections sent a letter to the sentencing judge, with a copy to Ball, stating that it did not appear that a postrelease-supervision period should have been ordered. Nevertheless, the Department said that it would comply with the court’s order.
After Garcia’s release from prison — and during the postrelease-supervision period — he committed a burglary. Because Garcia committed the crime while on postrelease supervision, he was covered by a special sentencing rule that required that he serve the remaining portion of his postrelease-supervision term in prison. See K.A.R. 44-6-115c(c).
Garcia says that he contacted Ball, who agreed to have the error in tire order requiring postrelease supervision corrected, but that Ball never took any action. Garcia filed a motion on his own in May 2010 seeking to correct the error. Several months later, in February 2011, the district court entered a corrected journal entry saying that Garcia shouldn’t have been subject to postrelease supervision. According to Garcia, he was released from prison about a week after the court adopted its corrected order.
Garcia alleges that he spent more than 9 months in prison due to Ball’s failure to get the order corrected. Based on that allegation, Garcia brought a legal-malpractice claim against Ball. Garcia filed his petition for damages on May 5, 2011. Docket entries in the district court’s file show that the summons and petition were served on Ball on May 17, 2011. Under K.S.A. 2013 Supp. 60-212(a), Ball had to file an answer within 21 days, which would have been June 7, 2011. The district court’s docket entries show that a clerk’s extension of time was entered June 7, 2011 (clerks may grant a 14-day extension), and an additional order extending the answer date was apparently entered June 20, 2011. That document is not in the record on appeal, so we don’t know what it said.
Garcia’s attorney said he never received copies of any orders extending the time for Ball to answer, and Garcia filed a motion for default judgment on July 18, 2011. That motion noted that Ball had been served on May 17 and hadn’t filed an answer. Garcia sought judgment for $522,400.
Garcia’s May 2011 petition had sought damages “in excess of $75,000.” That’s because Kansas law doesn’t allow a petition to state a specific amount above $75,000. See K.S.A. 2013 Supp. 60-208(a). In the event of a default, K.S.A. 2013 Supp. 60-254(c) allows the plaintiff to send notice to the defendant of the amount sought by default judgment. On July 7, 2011, Garcia sent a notice to Ball that Garcia’s “demand for judgment” would be for $522,400. On July 18, 2011, Garcia filed a motion for default judgment in that amount; Garcia’s attorney mailed a copy of that motion to Ball.
On October 14, 2011, since Ball still had not filed an answer, the district court granted default judgment in Garcia’s favor for $522,400. A month later, on November 14, 2011, Ball filed a motion to set aside the default judgment. Ball’s motion sought relief under K.S.A. 60-260(b)(1) (“[mjistake, inadvertence, surprise or excusable neglect”) and (b)(6) (“any other reason that justifies relief’).
The court held a hearing on that motion on November 14,2012. Ball’s attorney candidly conceded that Ball had “simply failed” to respond to the suit:
“If there is an excuse for him not filing an answer, Your Honor, he simply failed to, neglected to do so. And I know it’s not a good excuse, but the truth of the matter. What happened, he should have taken care of it and should have got an answer on file. He did not do so.”
Ball did not attend the hearing. After Garcia’s attorney argued that “[t]he statements of his counsel that he simply neglected to answer, I think failed to meet the burden of [showing] excusable neglect,” Ball’s attorney offered a “guess” as to why Ball had failed to respond in a timely manner to the lawsuit:
“[M]y guess, Your Honor, as most attorneys do tell you, [is] that he was busy with his practice, and that he overlooked this particular matter. This despite the fact ... he should have taken care of things. I don’t think there’s any dispute about that.”
Garcia’s attorney closed by arguing that since Ball had failed to provide any evidence supporting his claim of excusable neglect, his motion to set aside the default judgment should be denied:
“Apparently, he has not chosen to grace us with his presence to offer any evidence as to the nature of his neglect to respond to this lawsuit as the rules require, Judge. What they are asking you to do is to say that the rules don’t apply to Mr. Ball, because he’s an attorney who is busy and can’t respond to the lawsuit. That can’t be the rule, Judge. If anything, an attorney should have a higher burden to prove neglect, because they are an attorney, they practice law, and they are aware of deadlines. And there are severe consequences that can attach if deadlines are not met. So there’s no evidence to substantiate their motion. We ask the Court to deny it.”
The district court then granted the motion to set aside the default. The court cited a general preference for avoiding default judgments as the primary basis for its ruling:
“Well, due to the extent that the law dislikes defaults, and because Mr. Ball has a [potentially] meritorious [defense], tire fact that I personally don’t like defaults, in matters of this nature, I’m going to grant the motion. Default judgment is set aside.”
Ball then filed an answer, and the lawsuit proceeded. The district court eventually dismissed it, concluding that Garcia couldn’t sue his criminal-defense attorney unless Garcia first was exonerated for the underlying offense. See Canaan v. Bartee, 276 Kan. 116, Syl. ¶ 2, 72 P.3d 911 (2003).
Garcia has appealed to this court. He challenges both the district court’s decision to set aside the default judgment and its later ruling that his suit was barred by the exoneration rule announced in Canaan. Because we have found the default-judgment issue determinative of the appeal, we do not address the applicability of tire exoneration rule to this case.
Analysis
Courts and lawsuits are governed by rules, so we must start by identifying those applicable to our case. The primary rule at issue here is part of the Kansas Code of Civil Procedure, K.S.A. 60-260. Garcia had obtained judgment against Ball in October 2011. Ball’s November 2011 motion to set aside the default relied upon two subsections of K.S.A. 60-260(b). Under those provisions, the court “may reheve a party . . . from a final judgment” based on “[mjistake, inadvertence, surprise or excusable neglect,” K.S.A. 60-260(b)(1), or based upon “any other reason justifying relief,” K.S.A. 60-260(b)(6).
Ball doesn’t mention subsection (b)(6) on appeal, and his argument both here and in the district court was that his failure should be excused based on excusable neglect. In addition, when a party’s claim for relief is covered by subsection (b)(1), the catch-all provision of subsection (b)(6) does not apply: It is available only for types of cases different from those specifically provided for. See In re Marriage of Leedy, 279 Kan. 311, Syl. ¶ 4, 109 P.3d 1130 (2005); Subway Restaurants, Inc. v. Kessler, 273 Kan. 969, 978, 46 P.3d 1113 (2002). So we will focus on whether Ball qualified for relief based on excusable neglect under K.S.A. 60-260(b)(1).
We must also identify one other rule up front — our standard of review. A district court’s ruling on a motion for relief from judgment is reviewed only for abuse of discretion. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 937, 296 P.3d 1106 (2013); Leedy, 279 Kan. at 314. The district court abuses its discretion if its decision is based on an error of fact or law or where no reasonable person would agree with the court’s discretionary judgment call (here, whedier to set aside the default judgment). Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). A district court’s decision is based on an error of fact where there’s a lack of substantial evidence to support a factual finding necessary to the court’s exercise of discretion. 293 Kan. at 292.
Given these standards, we must reverse the district court: Ball provided no reason — let alone evidence — to support his claim of excusable neglect, and the existence of such a reason and some evidence supporting it is a necessary prerequisite to setting aside a judgment based on an excusable-neglect claim.
Ball’s attorney offered only a “guess” about why Ball hadn’t responded to tire suit — “that he was busy with his practice, and that he overlooked this particular matter.” Ball’s attorney offered no factual statement about what actually happened, Ball offered no affidavit, and Ball chose not to attend tire district court hearing.
Kansas courts have long followed federal precedents applying the parallel Federal Rules of Civil Procedure, e.g., Lackey v. Medora Township, 194 Kan. 794, 796, 401 P.2d 911 (1965), and at least two federal appellate court decisions have reversed district court orders setting aside a default judgment where there was no evidence presented to support tire decision. African Methodist Episcopal Church, Inc. v. Ward, 185 F.3d 1201, 1202 (11th Cir. 1999) (“[A] district court may set aside an entry of default only if the defaulting party can provide a good reason for the district court to do so.”); Western Union Telegraph Co. v. Dismang, 106 F.2d 362, 364 (10th Cir. 1939) (“It is an abuse of discretion ... to open or vacate a judgment where tire moving party shows no legal ground therefor or offers no excuse for his own negligence or default.”); see also In re Knight, 833 F.2d 1515, 1516 (11th Cir. 1987) (“[T]he setting aside of a default judgment where no good reason has been offered for the default constitutes an abuse of discretion.”); 12 Moore’s Federal Practice § 60.41[1][c], at 60-100 to - 101 (3d ed. 2012) (noting that the failure to meet a court deadline without some understandable reason for the failure is not excusable neglect).
No Kansas appellate decision has addressed this specific question (whether to reverse a district court for granting relief from a default judgment), but Kansas Supreme Court precedents strongly support the result these federal courts reached. In the related, but converse, situation, in which.district courts have refused to set aside default judgments, our Supreme Court has affirmed when the moving party had made only a minimal showing of excusable neglect. E.g., State ex rel. Stovall v. Alivio, 275 Kan. 169, 171-72, 174, 61 P.3d 687 (2003); Tyler v. Cowen Construction, Inc., 216 Kan. 401, 407-09, 532 P.2d 1276 (1975); Lackey, 194 Kan. at 796-97. And in one of those cases, Lackey, the Kansas court cited with approval the Tenth Circuit’s decision in Western Union Telegraph Co., one of the two cases we have cited that reversed a district court under the abuse-of-discretion standard when the district court granted relief from judgment but the moving party hadn’t provided a factual basis to do so. Lackey, 194 Kan. at 796-97 (citing Western Union Telegraph Co., 106 F.2d 362).
The Lackey case arose in an unusual procedural mariner, as the plaintiff there sought to set aside a judgment dismissing her petition for failing to state a valid claim for relief. After judgment, the plaintiff sought relief under K.S.A. 60-260(b)(1) based on mistake or inadvertence for having misstated a key fact in the petition. The court affirmed the denial of relief, noting that the plaintiff had not provided any reason for the mistake and citing to Western Union Telegraph Co.:
“If mistake or inadvertency forms the basis for a motion to set aside a judgment, the movant should make some showing as to why he was justified in failing to avoid the mistake or inadvertency. See Western Union Telegraph Co. v. Dismang, 106 F.2d 362; [other citations omitted]. . . .
“Appellant makes no explanation as to why the mistake or inadvertency occurred.” 194 Kan. at 796.
The Lackey court also referred in its syllabus paragraph to the need to show a basis for the claim made under K.S.A. 60-260(b)(1), which in that case was mistake or inadvertence: “[I]f mistake or inadvertency forms the basis for the motion, the movant should make some showing as to why he was justified in failing to avoid the mistake or inadvertency.” 194 Kan. 794, Syl.
The district court’s stated basis for its decision was a dislike of default judgments. We agree, of course, that deciding lawsuits on their merits is preferable to deciding by default. E.g., Tyler, 216 Kan. 401, Syl. ¶ 2. But that is not the only policy we must consider. We also have an interest in making sure that parties comply with the summons issued to them and appear before the court to adjudicate a dispute once a lawsuit has been filed:
“[I]nlierent in the adversary system of justice is the idea that each side ought to be heard prior to a court’s entry of final judgment. However, that same system requires that the court have the power to compel parties to appear before it. The threat of default (and default judgment) is the court’s primary means of compelling defendants in civil cases to appear before the court. If these defaults could be put aside without cause, the threat of a default would be meaningless, and courts would lose much of their power to compel participation by civil defendants.” African Methodist Episcopal Church, Inc., 185 F.3d at 1203.
Accord Wilson v. Miller, 198 Kan. 321, 322, 424 P.2d 271 (1967) (“[O]ur entire judicial process for trial of civil controversies would be destroyed if a court’s summons or other process were permitted to be treated with neglectful indifference.”). If a defendant could get a default judgment set aside without providing any excuse and without any evidence to support it, tiren defendants might be well advised never to answer a suit until a default judgment has been entered. And since motions under K.S.A. 60-260(b)(1) may be made for 1 year after the entry of judgment, defendants could build substantial delay into any lawsuit just by refusing to appear in response to the summons and delaying the motion to set aside the default as long as possible.
For a legal system to function, rules must be followed. We not only have a rule telling us when a default judgment may be entered, we also have one telling us when a default judgment may be set aside. Ball filed his motion under K.S.A. 60-260(b) claiming excusable neglect, and he had the burden to plead and prove that claim. Canaan, 272 Kan. at 733. We cannot allow a defendant to obtain relief based on excusable neglect without either stating what the neglect was or providing any evidentiary basis to support the claim. Ball failed to make that showing. Even if we assume his attorney’s “guess” was correct — that Ball “was just busy with his practice” — that would not constitute excusable neglect. See Allton & Broomes, What Constitutes Excusable Neglect?, 77 J.K.B.A. 6, 23 & n.52 (May 2008) (“[Bjusy schedules, heavy caseloads, and the burden of operating a law practice generally will not support a finding of excusable neglect.”) (citing cases).
Perhaps one might argue, although Ball did not, that Ball’s inaction might qualify as “inadvertence” under K.S.A. 60-260(b)(1). But our Supreme Court has said that “[ijnadvertent neglect... is not to be equated with excusable neglect.” Tyler, 216 Kan. at 407; see also Alivio, 275 Kan. at 173 (noting that a judgment may not be set aside where the default was the result of inexcusable neglect or a willful act). Thus, in Tyler, the court said that an attorney had not provided a viable excuse under K.S.A. 60-260(b)(1)-even though an affidavit had been provided stating that the lawsuit papers had “inadvertently not been directed to [the lawyer’s] attention” because of “reduced office personnel during the holiday season” after the papers had been served on the defendant (a business) on December 10. The court noted that there was no explanation of what employees “were gone for 29 days” after December 10. 216 Kan. at 407. As the court put it, “There is no explanation!” 216 Kan. at 407. Merely stating that a lawsuit wasn’t answered — without an explanation — does not show excusable inadvertence any more than it shows excusable neglect.
The summons and petition were served on Ball on May 17,2011. Garcia sent notice to Ball that Garcia sought more than $500,000 in damages on July 7, and Garcia notified Ball on July 18 that Garcia was seeking default judgment. Ball offered no explanation for his failure to file a timely answer to the lawsuit. In these circumstances, the district court abused its discretion by granting Ball’s motion for relief from the judgment based on excusable neglect.
The district court’s judgment is reversed.
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Stegall, J.:
After a full trial, David Scott Morrison was ousted from public office. Because we find that the undisputed facts of this case do not, as a matter of law, satisfy the criteria for judicial ouster contained in K.S.A. 60-1205, we reverse the decision of the lower court and remand with directions that judgment be entered in Morrison’s favor, thus reinstating him to his public office.
Facts
Morrison was elected to the Prairie Village City Council in 2008 and re-elected in 2012. Kelley Malone was Morrison’s long-time friend and a former coworker. In 2011, Malone began to have substance abuse problems. Eventually, Malone lost his job and became homeless. At this point, Malone called Morrison seeking help, as he believed he had nowhere else to turn. Morrison arranged for Malone to stay in a hotel for a week, bought him clothes, and set up a job interview for him. With employment, Malone’s circumstances improved and he was. able to purchase a home.
Unfortunately, the following year Malone relapsed. He again lost his home and feared for his life because he came to believe that a “hit" had been taken out against him. On Saturday, October 27, 2012, Malone again sought Morrison’s help. Morrison called his church seeking both advice and sanctuary for Malone. A pastor informed him that the church could not accommodate Malone and, further, that putting Malone in a hotel was ill-advised. Morrison then called a Prairie Village dispatcher, Dawn Johnson, to inquire into public resources available to assist the homeless. Johnson told Morrison that the usual practice was for a police officer to take the person to the City Union Mission in Kansas City, Missouri. Morrison arranged a spot for Malone at the City Union Mission, however, Malone refused to go as he did not believe it was a safe location. Morrison did not consider his own home a viable place for Malone to stay as Morrison lived with his elderly parents. Morrison’s mother s immune system was so compromised that Morrison himself would check into a hotel when he contracted an illness or cold so as not to expose his mother to illness. Morrison feared a stranger in his home would endanger his mother’s fragile health.
At a loss, Morrison made the fateful decision to house Malone in city hall for a few days. The Prairie Village City Hall and police station are located in the same complex, separated by a long corridor. Access to city hall after normal business hours requires entering the police station, walking past the dispatch window, and passing through a locked door opened using a four digit security code. Each city councilman had a unique security code, though there were no policies or restrictions as to how those security codes could be used. The security code permitted access to the employee lounge, a weight room, and a locker room but not to any work spaces or other areas of city hall.
That Saturday evening, Morrison brought Malone to city hall around 6 p.m. Morrison walked to the dispatch window where Johnson was working and told her that he and Malone were there for a neighborhood meeting. Morrison also told Johnson not to be alarmed if she saw Malone on the surveillance cameras as he was with Morrison. Johnson was suspicious of Morrison’s explanation and sent the following message to a Prairie Village police officer:
“Ok, you know the homeless guy I told you David Morrison was calling about? Well he just took him over to city hall. Telling me ‘they’ were having a meeting with die rest of the neighborhood .... Surely he wouldn’t let that guy stay the night over there would he? I don’t know of any meeting... not that that matters.”
At some point, Morrison and Malone left city hall to get dinner, returning at about 9 p.m. Pamela Huskey was working at the dispatch window when drey returned and Morrison told her that he and Malone would be working in city hall that night. Twenty minutes later, Morrison left while Malone stayed to spend the night. Before leaving, Morrison gave Malone his security code after realizing that without it, Malone would not have restroom access.
The following morning, the janitor saw Malone in the city hall employee lounge. Just after noon, Morrison picked Malone up and the two attended a football game that evening. They returned to city hall just after midnight on Monday morning, October 29,2012. Morrison told the dispatcher on duty, Cory Parker, that he and Malone were going to do paperwork in city hall. Morrison left a few minutes later. Malone again spent the night in city hall, leaving mid-morning on Monday and not returning for the rest of that day. He spent Monday night sleeping in the back of another friend’s car.
That same day, Morrison called Police Chief Wes Jordan to discuss Malone’s situation. Morrison described Malone’s current drug addiction and told Chief Jordan that Malone had information about drug transactions and human trafficking operations. Chief Jordan instructed Morrison to have Malone contact him so he could meet with the Special Investigations Unit, a police unit primarily focusing on drug crimes. Neither Malone nor Morrison contacted Chief Jordan to arrange a meeting time.
The following evening, Tuesday, October 30, 2012, Malone again called Morrison and asked to stay the night at city hall. Morrison told Malone that he did not think it would be a good idea, however, Malone ignored Morrison’s plea. Malone arrived at city hall just after midnight on Wednesday, October 31, 2012. Malone told Huskey, who was again working the dispatch window, that he and Morrison were going to be working again in city hall and that Morrison would be arriving soon. Malone then entered city hall. Morrison never arrived.
That morning, multiple city hall employees encountered Malone. Bettina Jamerson, the court administrator, encountered Malone at 7:30 a.m. as he was sitting in the employee break room. She reported Malone’s presence to Officer Kyle Shipps. Officer Shipps confronted Malone and asked him why he was in the employee break room. Malone replied that he was there to meet with Morrison and Chief Jordan. Penny Mann, another employee, saw Malone in the break room around 8 that morning. She asked if she could help Malone, and he told her that he was waiting for Morrison to arrive with an attorney. Likewise, employee Sheila Hopkins saw Malone around 8:30 that morning when she entered the break room and saw Malone talking on a cell phone. Unsure of whether he was supposed to be there, Hopkins asked Malone if there was anything she could do for him. Malone responded by giving Hopkins “a really dirty look.” Malone noisily gathered his things, left the break room, and went to the locker room.
When Chief Jordan arrived at work, Officer Shipps told him that Malone was waiting to meet with him. Chief Jordan found Malone in the locker room and escorted him back to'the police station. Malone told Chief Jordan that he was dropped off by Morrison around 7 a.m. that morning. Chief Jordan attempted to call Morrison but was unable to reach him. Chief Jordan deactivated Mor-risoris security code and initiated an investigation to determine when Malone had actually been in city hall.
Following the investigation, the Prairie Village City Council voted to oust Morrison from his position. A trial with an advisory jury was had, and the district court entered an order of ouster. Morrison now appeals.
Analysis
On appeal, Morrison asserts three claims of error: (1) The district court misapplied K.S.A. 60-1205 when it found that the undisputed facts of this case justified Morrison’s ouster; (2) jury instruction and verdict form errors; and (3) that ouster requires a violation of state law which was not found in this case. Because we find in Morrison’s favor on the first claim of error, we need not reach his final two claims.
The District Court Decision
We first note in passing that the district court chose to utilize an advisory jury in this matter. There is no right to a jury in ouster proceedings and use of an advisory jury is within the discretion of the district court. State ex rel. Stovall v. Meneley, 271 Kan. 355, 381, 22 P.3d 124 (2001). Findings of an advisory jury have no binding effect on a trial court and the court remains obliged to determine the disputed facts, reaching its own independent conclusions. See In re Roberts’ Estate, 192 Kan. 91, 99, 386 P.2d 301 (1963); Grannell v. Wakefield, 172 Kan. 685, 691, 242 P.2d 1075 (1952). Therefore, we will consider only the findings of fact as found by the district court itself.
The facts as set forth above were found by the district court, are not contested by the parties, and we accept them as true on appeal. The district court’s ruling includes a thorough discussion of these facts and their implications. At the outset, the court found that the “undisputed evidence reflects a series of events that can only be described as reflecting breathtakingly bad judgment by Mr. Morrison.” This bad judgment was exacerbated by Morrison’s decision to mislead city officials and apparently the district court as well. Morrison initially claimed that the cover story he used to justify Malone’s presence in city hall was not dishonest but merely a “mis-communication.” The district court found this explanation “not credible,” further finding:
“That Mr. Morrison had lied about tire reason for Mr. Malone’s presence and tiren sought to spin this same conversation in court, is particularly disturbing. . . . This was a significant line of testimony because the intent to lie and misrepresent is reflective of the fact that Mr. Morrison knew that what he was doing was wrong.”
The district court was likewise concerned about Malone himself, describing him as “a gaunt version of himself’ who “sat hunched over” with his “nose dripping throughout his testimony.” This led the court to conclude:
“Mr. Morrison chose to ignore the potential risks and security breach posed by Mr. Malone, who, in many respects, he did not know. He knew that he had been addicted to meth although he claimed to be ‘clean’ for a week. . . .
“. . . Mr. Malone posed an unnecessary risk; he posed a health and security risk.”
It was this potential risk that the district court focused on throughout its decision. The court concluded that Morrison’s actions exposed city employees to Malone without giving them “the choice to know whether Mr. Malone represented a threat to their health, much less whether his story of being a target for drug gangs could expose them to harm while Mr. Malone was coming or going from City Hall.”
The district court summarized Morrison’s conduct as follows:
“[Morrison] used city property for his own benefit and to assuage his own views of what humanitarian gestures should be. Instead of being up front about it and risking question, he sneaked Mr. Malone in with a cover story that was a he.
“The foregoing suggests that Mr. Morrison was willing to compromise his own integrity, the integrity of the City, and the security of others because it appealed to his own need to be regarded as a benefactor to Mr. Malone .... He used city property for his own benefit, to extend a favor to another, and misled people along the way.”
Based on these undisputed facts the district court concluded as a matter of law that Morrison had violated two provisions of the Prairie Village City Code of Ethics. That code precludes a council member from granting “any improper favor, service or thing of value” and from permitting the use of city property “for personal convenience . . . except when such services are available to the public generally.” Prairie Village City Code of Ethics 1-212(e)(6)(b) and 1-212(g). The district court further concluded that these acts demonstrated both that Morrison had “willfully engage^] in misconduct while in office” and had “willfully neglected] to perform [a] duty enjoined upon [him] by law” in violation of K.S.A. 60-1205(1) and (2), thus making ouster tire proper judicial remedy.
In reaching this conclusion, the district court wrote that even though Malone “did no harm while at City Hall” and even though the result might have been different if “the person Mr. Morrison sought to help was an abused spouse seeking sanctuary,” ouster was the appropriate sanction under tire undisputed facts because “the councilman owed citizens a fiduciary obligation to protect city property, staff and citizens, all of which could have been jeopardized by a thoughtless risk to which Mr. Morrison would not even subject his own family.”
A Review of Ouster Law in Kansas
Ouster of public officials via quo warranto proceedings is controlled by statute at K.S.A. 60-1205, which provides:
“Every person holding any office of trust or profit, under and by virtue of any of the laws of the state of Kansas, either state, district, county, township or city office, except those subject to removal from office only by impeachment, who shall (1) willfully engage in misconduct while in office, (2) willfully neglect to perform any duty enjoined upon such person by law, (3) demonstrate mental impairment such that the person lacks tire capacity to manage the office held, or (4) who shall commit any act constituting a violation of any penal statute involving moral turpitude, shall forfeit such person’s office and shall be ousted from such office in the manner hereinafter provided.”
Whether the distxict court correctly applied K.S.A. 60-1205 to the undisputed facts in this case raises a question of statutoiy interpretation over which we exercise unlimited review. Poteet v. Kansas Dept. of Revenue, 43 Kan. App. 2d 412, 415, 233 P.3d 286 (2010) (“When an issue involves a legal determination based upon undisputed facts, our review must consider those facts and be made without deference to the district court’s conclusion.”).
When interpreting Kansas ouster statutes, our Supreme Court has recognized that ouster is an extraordinaiy judicial remedy, “a drastic action . . . that should be invoked only where the evidence is clear and convincing and the misdeeds flagrant.” State ex rel. Tomasic v. Cahill, 222 Kan. 570, 572, 567 P.2d 1329 (1977).
“It is not every oversight or omission within the strict letter of die law which will entail forfeiture of office. The purpose of the statute is to prevent persons from continuing to hold office whose inattention to duty, either because of its habitualness or its gravity, endangers die public welfare; and die neglect contemplated must disclose either willfulness or indifference to duty so persistent or in affairs of such importance that the safety of the public interest is threatened.” State ex rel. Hopkins v. Corwine, 113 Kan. 192, 196, 213 P. 658 (1923) (citing State v. Kennedy, 82 Kan. 373, Syl. ¶ 10, 108 P. 837 [1910]).
Ouster is only appropriate in circumstances demonstrating a “willful violation of official duty prompted by a bad or corrupt purpose, and without any reasonable grounds to believe the action is lawful. Mere departure from the letter of the law will not warrant a judgment of ouster, unless it is prompted by an evil design.” State, ex rel., v. Duncan, 134 Kan. 85, 94-95, 4 P.2d 443 (1931), citing The State v. Trinkle, 70 Kan. 396, 78 P. 854 (1904), and The State, ex rel., v. Foley, 107 Kan. 608, 193 P. 361 (1920). Further, a simple error of judgment is not sufficient to satisfy the statute, only “unlawful acts prompted by a corrupt purpose and bad faith warrant a judgment of ouster.” Duncan, 134 Kan. at 95.
Our review of prior judicial ousters of public officials in Kansas makes it clear that this remedy is available only in circumstances that show a corrupt purpose or an evil design by virtue of either (1) a persistent and habitual disregard for the law or for the official’s public duty or (2) acts so egregious that they pose a grave threat either to public safety or to the public fisc. See, e.g., The State ex rel., v. Baird, 117 Kan. 549, 554, 231 P. 1021 (1925) (county attorney ousted for failing to ensure sentences of state liquor law violations actually served); State, ex rel., v. Howard, 123 Kan. 432, 432-33, 256 P. 172 (1927) (county commissioner ousted for intentionally inducing the commission to pay a new tractor price for a used tractor); State, ex rel., v. Darnall, 123 Kan. 643, 256 P. 974 (1927) (official ousted for knowingly padding travel reimbursement and using city funds to pay his personal automobile insurance premium, thereby defrauding the public fisc); Duncan, 134 Kan. 85 (county commissioner ousted for falsifying census books so his salary would not be decreased); State, ex rel., v. Jackson, 139 Kan. 744, 752, 33 P.2d 118 (1934) (sheriff ousted for failing to keep proper record of fees collected and habitually beating prisoners— “[njothing is more destructive to good government than to have our laws constantly or habitually violated by officials whose duty it is to enforce them”); State, ex rel., v. Harvey, 148 Kan. 166, 172, 80 P.2d 1095 (1938) (district court clerk ousted for embezzlement and forgeiy); State, ex rel., v. McKnaught, 152 Kan. 689, 107 P.2d 693 (1940) (police chief ousted for refusing to enforce prohibition liquor laws); State, ex rel., v. Robinson, 193 Kan. 480, 489, 394 P.2d 48 (1964) (sheriff ousted for permitting a convicted prisoner to leave the jail unsupervised — “[i]t is difficult, indeed, to envision a practice fraught with graver danger to the public peace and to the personal security of individual citizens than to allow convicted criminals to be at large while serving their sentences”); State, ex rel., v. Schroeder, 199 Kan. 403, 430 P.2d 315 (1967) (county com missioner ousted for hiding his conflict of interest through an undisclosed trade name, wrongfully depleting die county treasuiy, and violating statutes by selling utility generators to the county at excessive prices); State, ex rel., v. Cahill, 222 Kan. 570, 576, 567 P.2d 1329 (1977) (Kansas City Board of Public Utilities members ousted for knowingly padding their expense accounts and forcing the Board to buy supplies from a Board member s sibling’s business at higher prices than offered by previous vendor); State ex rel. Miller v. Richardson, 229 Kan. 234, 623 P.2d 1317 (1981) (county treasurer ousted for crediting employees widi hours not worked in exchange for sexual favors).
Application of Kansas Ouster Law to David Morrison
David Morrison proved to be a clumsy benefactor. Worse, Morrison added casuistry to clumsiness when he fabricated a cover story to explain Malone’s presence in city hall. But after considering the entire record and the underlying facts as determined by the district court, we are unable to find any indication that Morrison’s actions arose out of an evil or corrupt motive; out of a habitual disregard for his public duty; out of a quest for selfish gain; or resulted in a serious threat to public safety.
As the district court acknowledged, Morrison was primarily — if not wholly — motivated by his sincerely held view of his humanitarian duty to his fellow man. There is no evidence that this incident is anything other than an isolated and singular occurrence. Morrison gained no financial benefit and his actions did not threaten the public fisc. The district court expressly noted that Malone’s presence at city hall did no actual harm. The court justified its ouster order with its conclusion that Morrison had subjected city employees to a potential threat to their health and safety. To the contrary, however, we conclude that dripping noses and dirty looks are not the kinds of dangers to public safety that warrant judicial ouster. As such, we find that the district court erred in its application of K.S.A. 60-1205 to the facts of this case.
In its ruling, the district court noted a “superficial appeal” of allowing “the voters in Ward 5 to show their displeasure through either a recall election or at the next ballot box.” We cannot so easily dismiss these available political remedies as preferable alternatives to a judicial ouster in a case such as this. Our courts’ long history of considering judicial ouster a drastic remedy, available only on a showing of serious wrongdoing, is deeply rooted in judicial respect for the separation of powers and judicial restraint in the face of political questions. See, e.g., Gannon v. State, 298 Kan. 1107, 1137, 1148, 319 P.3d 1196 (2014) (“ The nonjusticiability of a political question is primarily a function of the separation of powers’ ” and “[t]he presence of all political power in die people is one of the ‘truths, which lie[s] at the foundation of all republican governments,’ ” quoting Baker v. Carr, 369 U.S. 186, 210, 82 S. Ct. 691, 7 L. Ed. 2d 663 [1962] and Wright v. Noell, 16 Kan. 601, 603 [1876].) It may veiy well be that the people of Ward 5 will determine that Morrison’s actions merit a loss of public trust and, consequently, of his public office. This is not a case, however; where the need to protect the public’s interest is so grave and immediate that judicial preemption of the political process is justified.
The district court’s decision is reversed and we remand tiiis matter widi directions that judgment be entered in Morrison’s favor, thus reinstating him to his public office.
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Johnson, J.:
Shelby Farley suffered work-related injuries while working for Above Par Transportation. Farley was receiving old-age Social Security benefits at the time he was injured. The Workers Compensation Board (Board) awarded Farley a substantial work disability. However, because the Board found that Farley had not retired before his accident occurred, it reduced Farley s award by the amount of his Social Security benefits pursuant to K.S.A. 2009 Supp. 44-501(h). Farley appeals, contending that tire Board “overlooked” his evidence that he had in fact retired and that it erroneously applied the statutory offset. We affirm the Board’s decision.
Factual and Procedural Background
In this action for judicial review, Farley contends that the Board overlooked the fact that he had retired and then returned to work before he suffered his work-related injuries. As we give the history of the case in the following, we have specifically set out what evidence we could find in the record that relates to that contention.
Farley was bom March 14, 1945. At age 64, he began working for Above Par Transportation (Above Par) as an over-the-road truck driver. His first day on the job was October 20,. 2009. On October 29, 2009, he delivered a load of 900-pound bundles of steel pipe to an Amish community in Wisconsin. The customers were responsible for unloading the pipe. They tied a team of horses to the pipe to drag it from the trailer. In the process, the horses became spooked and they took off, causing the bundle they were pulling to swing around and strike Farley. He suffered injuries to his left leg and back. He timely filed his claim for workers compensation benefits. After a lengthy period of treatment, he finally reached the point of maximum medical improvement.
On May 3,2012, 6 days before the regular hearing, Karen Terrill, a rehabilitation consultant retained by Farley, testified at her deposition. Her written report was admitted into evidence. The report included a 15-year work history Terrill prepared based only on information Farley gave her. The report reflected a gap in Farley’s employment from May 2008 to October 2009, when he started working for Above Par. It also indicated that Farley had attempted to obtain Social Security disability benefits, but his application for benefits was denied in 2008. The report listed the job tasks that were essential to the work Farley had performed during that 15-year period. The parties’ attorneys examined Terrill with a focus on her breakdown of Farley’s job. tasks. On his redirect examination of Terrill, Farleys attorney asked her about the Social Security benefits Farley was receiving:
“Q: It’s your understanding that he had been receiving social security and had continued to work in the open labor market, correct?
“A: That is correct.”
That is the full extent of Terrill’s testimony regarding Farley’s Social Security benefits. She did not state or report that Farley had ever told her he had retired but then came out of retirement to work for Above Par. Neither party asked Terrill any questions about Farley’s employment gap she noted in her report, or why Farley had applied for Social Security disability benefits, or why the claim was rejected in 2008 during the employment gap.
On May 9, 2012, the administrative law judge (ALJ) conducted the regular hearing in the case. At the outset, the ALJ asked the parties to state their stipulations and identify the issues. Above Par indicated that one of the issues involved its potential credit for Social Security retirement benefits against any workers compensation award to Farley. Farley then testified, giving a detailed description of his accident, injuries, treatments, and resulting disabilities. Toward the end of the direct examination, Farley and his attorney had the following exchange regarding his Social Security benefits:
■ “Q: At the time of the accident you were 64 years old. Were you drawing Social Security retirement benefits?
“A: Yes.
“Q: So you were drawing Social Security retirement benefits and working?
“A: Yes.
“Q: Was it, what were your intentions regarding work for the rest of your life?
“A: I wanted to work the rest of my life.
“Q: So you intended to draw Social Security retirement and work as long as you could?
“A: Yes, I did.”
Above Par cross-examined Farley briefly about his Social Security benefits. Farley testified that he began drawing his benefits in April 2009. He said he received $776 per month until January 2012, when his benefits were increased by 3%. Neither attorney questioned Farley about why he decided to take his old-age Social Se curity when he did, why he applied for Social Security disability, why he was rejected, or why he was out of work before he took the job with Above Par. Farley did not testify that he had retired or say that he had decided to come out of retirement to work for Above Par.
In workers compensation cases, each party ultimately provides the ALJ a submission letter. That submission generally contains drat party’s summary of die evidence and its arguments on findings of fact and conclusions of law. Farley’s submission letter does not mention retirement. It refers to Social Security once, stating: “At the time of the accident, the Claimant was drawing Social Security retirement benefits and intended to work the rest of his life.” Above Par’s submission letter contended that the clear language of K.S.A. 2009 Supp. 44-501(h) entitled it to a Social Security offset against any award the ALJ might make to Farley. It inveighed against the Supreme Court for recognizing an exception to the statute in Dickens v. Pizza Co., 266 Kan. 1066, 974 P.2d 601 (1999) (holding that the offset did not apply to compensation awarded to a worker who had retired but later returned to part-time work to supplement the worker’s old-age Social Security benefits). It contended that Dickens was bad, judge-made law.
The ALJ awarded Farley a 72.5% permanent partial general work disability which, based on an average weekly wage of $813.16, entitled Farley to payments for his permanent partial disability of $542.13 per week. The ALJ also found that Farley had never retired, he had just chosen to receive his Social Security benefits while he continued to work. The ALJ determined that, since Farley had not retired before his accident, the offset for Social Security was mandated by K.S.A. 2009 Supp. 44-501(h) and the decision in McIntosh v. Sedgwick County, 32 Kan. App. 2d 889, Syl. ¶ 3, 91 P.3d 545, rev. denied 278 Kan. 846 (2004) (holding that the offset applied to compensation awarded to a worker who was drawing Social Security at the time of the injury but had not retired before the injury). Applying that offset, the ALJ reduced Farley’s weekly workers compensation payment by $179.08 per week through December 2011, tiren by $184.45 per week for payments that came due thereafter.
Above Par sought Board review of tire ALJ’s award. In its brief, Above Par challenged nearly every aspect of the ALJ’s award except for the Social Security offset. Nevertheless, it fully addressed the offset issue with citations to authority and argument that Dickens was bad law. Farley responded, arguing that Dickens was still good law but that the ALJ had misapplied it. However, Farley did not cite any evidence in the record that contradicted the ALJ’s finding that Farley had never retired. The Board modified the award, finding Farley’s average weekly wage was $648.25, with an attendant reduction in Farley’s weekly compensation rate. Regarding the Social Security offset issue, tire Board made this finding of fact: “There is no evidence that claimant has ever retired.” The Board affirmed the ALJ’s application of the offset to the award, stating:
“Based on the holdings of the McIntosh and Dickens cases, if a claimant is injured before he or she retires, the employer is entitled to the statutory offset, as an injured employee is not entitled to recover both retirement benefits and workers compensation benefits beyond the value of their functional impairment. [McIntosh, 32 Kan. App. 2d at 897-98]. But if an employee retires and then returns to work to supplement his or her income, tire offset does not apply, as the employee’s receipt of both workers compensation benefits and social security retirement benefits is not duplicative. [Dickens, 266 Kan. at 1071].
“In this claim, claimant did not retire before his accidental injury, nor did he retire after his injury. It was his intention to continue working and receive social security retirement benefits for the rest of his life. Accordingly, the ALJ correctly found that respondent is entitled to the retirement benefit offset.”
Farley appeals from Board’s application of the Social Security benefits offset to his award.
Standards of Review
K.S.A. 2009 Supp. 44-556(a) provides that final orders of the Board are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., as amended. On appeal, the party asserting the invalidity of the Board’s action has the burden to prove its invalidity. K.S.A. 2013 Supp. 77-621(a)(l). K.S.A. 2013 Supp. 77-621 establishes and restricts the scope of judicial review of an administrative agency’s action. Specifically, K.S.A. 2013 Supp. 77-621(c) lists the several circumstances under which this court can grant relief from an order of the Board. Two of those circum stances appear to be relevant here. K.S.A. 2013 Supp. 77-621(c)(4) provides that we can grant Farley relief if we determine that the Board erroneously interpreted or applied the law. K.S.A. 2013 Supp. 77-621(c)(7) provides that we can grant Farley relief if we find that the Board based its order on a determination of fact not supported by substantial evidence in the record as a whole. The term “substantial evidence” refers to “such evidence as a reasonable person might accept as being sufficient to support a conclusion.” Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009).
K.S.A. 2013 Supp. 77-621(d) includes the definition of “record as a whole” and provides in relevant part as follows:
“(d) For purposes of this section, ‘in light of the record as a whole’ means that tire adequacy of tire evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the relevant evidence in the record, compiled pursuant to K.S.A. 77-620, and amendments thereto, cited by any party that supports such finding .... In reviewing the evidence in light of tire record as a whole, the court shall not reweigh the evidence or engage in de novo review.”
Thus, on review, we cannot reweigh the evidence. We must conduct a limited review of all of the evidence in tire agency’s record cited by any party, both that which supports and that which detracts from the validity of a factual finding, to determine whether the Board’s factual findings are supported by substantial evidence. Gustin v. Payless ShoeSource, Inc., 46 Kan. App. 2d 87, Syl. ¶ 1, 257 P.3d 1277 (2011). If the factual finding is not properly supported, we can reverse a legal conclusion based on that insufficiently supported fact. K.S.A. 2013 Supp. 77-621(c)(7). We have de novo review of the Board’s construction and application of a statute. See Craig v. Val Energy, Inc., 47 Kan. App. 2d 164, 166, 274 P.3d 650 (2012), rev. denied 297 Kan. 1244 (2013).
Analysis
At the time of Farley’s accident, K.S.A. 2009 Supp. 44-501(h) provided in relevant part:
“If the employee is receiving retirement benefits under the federal social security act, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of the total amount of all such retirement benefits . . ., but in no event shall the workers compensation benefit be less than the workers compensation benefit payable for the employee’s percentage of functional impairment.”
We have referred above to Dickens and McIntosh because they state the tests that determine whether the offset in K.S.A. 2009 Supp. 44-501(h) should be or should not be applied to an award. The Supreme Court succinctly reiterated those rules, and the wage loss duplication principles on which they are based, in Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 286, 241 P.3d 15 (2010), are as follows:
“Applying this provision [K.S.A. 44-501(h)], this court and the Court of Appeals have noted that the puipose of this statutory reduction is to prevent wage loss duplication. Injured Workers of Kansas v. Franklin, 262 Kan. 840, 872, 942 P.2d 591 (1997); Lleras v. Via Christi Regional Med. Center, 37 Kan. App. 2d 580, Syl. ¶ 5, 154 P.3d 1130 (2007); McIntosh v. Sedgwick County, 32 Kan. App. 2d 889, 897, 91 P.3d 545, rev. denied 278 Kan. 846 (2004). If a claimant is injured before he or she retires, the employer is entitled to the statutory reduction, as an injured employee is not entitled to recover both retirement benefits and workers compensation benefits beyond the value of the functional impairment. McIntosh, 32 Kan. App. 2d at 894, 897-98. Conversely, if an employee retires and then returns to work to supplement his or her income, the reduction does not apply, as the employee’s receipt of both workers compensation benefits and social security retirement benefits are not duplicative. Dickens v. Pizza Co., 266 Kan. 1066, 1071, 974 P.2d 601 (1999).”
The plain language of the statute appears to require that Farley s Social Security benefits be offset against his workers compensation award. However, if Farley had shown that he had retired, drawn his Social Security, and then returned to work, tire Dickens exception would apply, and his Social Security would not be offset against his award. The Board specifically found that the Dickens exception did not apply because Farley had not retired before his accident.
Farley frames the issue on his appeal in the form of a question: “Did the Board erroneously apply K.S.A. 44-501(h) in finding that the offset provision contained therein applied in this case?” Farley characterizes his challenge to the Board’s offset decision as one made under K.S.A. 2013 Supp. 77-621(c)(4). Under that subsection, we can grant Farley relief if we determine that the Board erroneously interpreted or applied the law. For decisions challenged under that subsection, our review is unlimited. See Higgins v. Abilene Machine, Inc., 288 Kan. 359, 361, 204 P.3d 1156 (2009).
On closer inspection, though, we see that Farley’s challenge is also directed at die Board’s determinative finding of fact that “[tjhere is no evidence that claimant has ever retired.” K.S.A. 2013 Supp. 77-621(c)(7) and K.S.A. 2013 Supp. 77-621(d) govern our review of factual findings. We conduct a limited review to determine whether the Board based its order on a finding of fact that is not supported by substantial evidence in the record as a whole.
Because Farley challenges both the Board’s findings of fact and its legal conclusions, and those challenges are subject to differing analyses, we will consider tiróse challenges separately.
The Board’s determinative finding of fact is supported by substantial evidence.
Farley submits in the Statement of Facts in his brief the following:
“At the time of his work accident in 2009, the Claimant was 64 years old. He had terminated his employment in May of 2008 for a period of time and began drawing social security retirement benefits in April 2009. When he reentered the workforce for Respondent in October 2009, he intended to work the rest of his life and draw social security.” (Emphasis added.)
Farley cites us to his testimony before the ALJ and to Terrill’s report as the sources for these contentions. However, according to the transcript, Farley did not testify that he had terminated his prior employment in May 2008. Terrill’s report simply indicates that Farley’s prior employment ended at that time, without any indication whether Farley resigned, retired; or was fired. Nor did Farley testify that he was “reentering the workforce” when he took the job with Above Par. He just told the ALJ that he started to work for Above Par in October 2009 and that he had planned to work and draw his Social Security for the rest of his life.
Then, under the Arguments and Authorities section of Farley’s brief, he states:
“In reviewing the line of cases regarding social security retirement benefits set off pursuant to K.S.A. 44-50I(h) it is clear to claimant that an important factor has been overlooked in his case. Mr. Farley was 64 years old at the time of Iris accident. His last employment prior to going to work for Respondent had terminated in May, 2008. Claimant was not working and he began to receive social security retirement benefits in April, 2009. Claimant then decided to come out of retirement and go back to work. He took a job with Respondent on October 19, 2009 and unfoitunately was injured on October 29, 2009.” (Emphasis added.)
Above Par correctly points out that Farley did not make these fact claims in his submission letters to the ALJ or to the Board. Above Par maintains that, until this appeal, Farley never alleged that he had retired. But we are directed to consider the agency’s record as a whole when reviewing fact findings. Even if Farley’s counsel overlooked facts in the record when making his submissions to the ALJ and Board, if those facts are in the record, we should consider them. The Board said in its order that it had “considered the entire record.” Likewise, we have reviewed the record as a whole for evidence that either supports or detracts from the Board’s finding that Farley had not retired before his accident.
We are satisfied that tire Board did not overlook material evidence in making its decision. We have quoted above the full extent of Farley’s testimony regarding his Social Security. He never told the ALJ or Terrill he had retired. It appears that the claim of a prior retirement Farley makes now is just counsel’s best-case (for Farley) extrapolation from imprecise and unexplained information that Terrill included in her report. Terrill’s report tells us four tilings: Farley’s previous employment ended in May 2008; he was denied Social Security disability in 2008; he began to draw his old-age Social Security before starting to work for Above Par; he intended to work and draw his Social Security for the rest of his life.
Those facts are not necessarily inconsistent with a retirement, but they are not adequate to demonstrate that Farley had ever retired. One could just as easily infer from Terrill’s employment gap and related information that Farley became ill in 2008, tried but failed to get disability, drew his old-age Social Security in April 2009 to tide him over until he could get well and get back to work, and then did go back to work for Above Par in October 2009, In spite of Farleys contentions, the information in TerrilFs report does not detract from the Board’s finding that Farley had not retired.
We can find no evidence in the record as a whole that actually supports Farley’s new claim that he had retired but then returned to work. We do find evidence in the record indicating that Farley never retired: he testified that he intended to draw his Social Security and work for the rest of his life. He told Terrill the same thing. If Farley had retired, he could have said so at his regular hearing, but he did not. Farley has failed to sustain his burden of proof under K.S.A. 2013 Supp. 77-621(a)(l) and (c)(7). The Board’s finding of fact that Farley had never retired is supported by substantial evidence.
The Board did not erroneously interpret or apply the law
Still, Farley maintains that the Board erroneously applied the law to the facts. Our review of that challenge is unlimited. He relies on Jones v. Securitas Security Services, No. 105, 414, 2011 WL 6311105 (Kan. App. 2011) (unpublished opinion), to support his position. He argues that the facts there are similar to those here so he should obtain the same result: no offset. In that case Jones was drawing Social Security when he suffered his work-related injuries. The ALJ, the Board, and the panel all found that under the Dickens exception to K.S.A. 2010 Supp. 44-501(h) the employer was not entitled to an offset of Jones’ Social Security benefits against his workers compensation award.
Farley’s reliance on that case is misplaced. In Jones the fact of Jones’ preaccident retirement, the determinative fact triggering the Dickens exception, was simply not in dispute. The only issue before the panel was the employer’s claim that the Dickens case was bad law and, regardless of Jones’ unchallenged preaccident retirement, Jones’ award should be subject to the offset under the plain language of K.S.A. 2010 Supp. 44-501(h). The opinion was, as Farley notes, short. That is because the issue was narrow and controlled by Dickens. Finally, the Jones panel observed the importance of a finding of a preaccident retirement in order to avoid the offset provisions of K.S.A. 2010 Supp. 44-501(h). In the opening para graph of the opinion the panel stated: “Finding that a reduction is not required when an employee retires and then returns to work to supplement his or her income, we affirm.” Jones, 2011 WL 6311105, at *1.
Above Par cites us to another unpublished case it argues is more apposite to our facts. In Morales v. Wal-Mart, No. 107, 526, 2013 WL 1010438 (Kan. App.) (unpublished opinion), rev. denied 298 Kan. 1203 (2013), the panel reversed the Board’s decision denying Wal-Mart an offset under K.S.A. 2009 Supp. 44-501(h). Morales went to work for Wal-Mart in 2008 and, while she was working, began to draw her old-age Social Security benefits. Subsequently she suffered a job-related injury. The relevant facts and holdings in Morales follow:
“While Morales’ attorney argued in a submission letter to the ALJ that Morales had retired but continued to work in order to supplement her income and was limiting her income to stay within the limits to retain social security benefits, Morales did not provide testimony on these points and there is no evidence in the record to support them.
“The statutory exception set forth by Dickens is based on the rationale that workers who already are retired and receiving social security retirement benefits before starting work on a part-time job to supplement those benefits suffer a second wage loss when they are injured in the course of their employment. See Dickens, 266 Kan. at 1071. Although Morales began receiving social security retirement benefits before her injury, the fact that she received those benefits does not necessarily mean that she was retired. See McIntosh, 32 Kan. App. 2d at 897 (‘to retire is ‘ “ ‘to terminate employment or service upon reaching retirement age’ ” ’). In the absence of evidence in the record showing that Morales was retired and working at Wal-Mart to supplement her income at the time of her injury, Wal-Mart is entitled to an offset for retirement benefits she received. See KS.A. 2009 Supp. 44-501(h)r (Emphasis added.) 2013 WL 1010438, at "5.
We agree with the Morales panel’s analysis and apply that approach to resolve Farley’s issue. Attorney arguments are not evidence. The receipt of old-age Social Security benefits is relevant in determining whether one has retired, but it does not constitute, in and of itself, a retirement. In the absence of evidence in the record proving a preinjury retirement, the offset in K.S.A. 2009 Supp. 44-501(h) applies.
We have conducted our unlimited review of the Board’s conclusions of law. We do not need to expand or expound on the under pinnings of the Dickens and McIntosh holdings. The rules derived from those holdings are well-established, and we have stated them above. The Board correctly took those same holdings into account when it ruled. We acknowledge, as did the Board, that our Supreme Court has become more inclined to apply a plain language approach to the construction of workers compensation statutes. See, e.g., Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 (2009); Graham v. Dokter Trucking Group, 284 Kan. 547, 556-57, 161 P.2d 695 (2007). However, we note that, after applying a plain language approach in Bergstrom and Graham, the Supreme Court had an opportunity to step back from its Dickens interpretation of K.S.A. 44-501(h) and did not do so. See Robinson v. City of Wichita Retirement Bd. of Trustees, 291 Kan. 266, 286, 241 P.3d 15 (2010).
The Supreme Court in Robinson confirmed that the Dickens/ McIntosh approach to the application of K.S.A. 2009 Supp. 44-501(h) retains its vitality. “In the absence of some indication the court is departing from its previous position, this court is duty bound to follow Supreme Court precedent.” Anderson Office Supply v. Advanced Medical Assocs., 47 Kan. App. 2d 140, 161, 273 P.3d 786 (2012). Since Farley had not retired before his injury, his circumstances do not fall within the Dickens exception to the application of K.S.A. 2009 Supp. 44-501(h). The Board did not erroneously interpret or apply the statute when it offset Farley s old-age Social Security retirement benefits against his workers compensation award.
We note that Above Par contends that the Board erred in failing to apply the Social Security offset to the temporary total disability compensation awarded Farley. To the extent that Above Par is challenging some portion of the Board’s order, and not merely arguing an alternative basis for affirming the Board’s decision, this court lacks the jurisdiction to entertain that challenge. Above Par did not file a timely cross-petition for judicial review. See Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 191-92, 106 P.3d 483 (2005).
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Pierron, J.:
James Clinton Ramey appeals his convictions by a jury for aggravated burglary, misdemeanor theft, and vehicle burglary. Before trial, he pled guilty to criminal damage to property, possession of methamphetamine, and possession- of drug para- pliernalia involving the same incident. Ramey s main issue on appeal is a plethora of allegations of prosecutorial misconduct. He also argues the trial court erred in its response to a jury question and failed to make the proper analysis for assessing Board of Indigents’ Defense Services (BIDS) attorney fees. Additionally, Ra-mey claims the journal entry states the incorrect amount of attorney fees awarded by the trial court, that he was entitled to a lesser included offense instruction on simple burglary, his prior convictions were not proven to a jury, and cumulative error denied him a fair trial. We find there was cumulative error which requires a reversal and remand for new trial.
Factual Background
Beverly Zimmerman is over 80 years old. She was asleep in her home on the night in question and awoke to a big crash. When she came out of her bedroom, she saw the silhouette of a man followed by a dog in her house. After turning on the ldtchen light, Zimmerman saw Ramey and told him he was in the wrong house. Zimmerman testified Ramey said, "[N]o, I’m cold. The rest of them will be here pretty soon.” Zimmerman testified she knew she needed to get out of the house. She tried to call the police on her cordless phone, but it did not work. She walked out onto the porch to see if it would work, but it would not. Zimmerman took the phone back inside, hung it up, and then walked to a neighbor’s house to call the police. She said Ramey never threatened her and just repeated that he was cold. Zimmerman had $14 in her wallet that was missing after the incident. She testified she had not left her car door open that night and usually kept her driver’s license and bank cards in her purse.
Officer Jason Reddy of the Independence Police Department responded to Zimmerman’s home-invasion call. Officer Reddy approached Zimmerman’s house, and through the front window he saw Ramey going through the kitchen cabinets. As Officer Reddy opened the front door, it squeaked and through the window he could see Ramey run the opposite direction down a hallway. Officer Reddy chased Ramey and at gunpoint ordered him to show his hands. Ramey immediately complied, and Officer Reddy or dered Ramey to get on the floor. Ramey called his dog off. Officer Reddy took Ramey into custody without incident.
During a search incident to the arrest, officers discovered a small bag of methamphetamine in Ramey’s wallet. During the search, Ramey also asked for a drug test. Officer Reddy noticed the front door frame was broken and there was a ball cap on tire front walkway just before the stairs. Officer Reddy believed Ramey was under tire influence of methamphetamine based on his observations of Ramey’s racing pulse rate and profuse sweating. Officer Reddy testified that despite the drugs, Ramey knew what was going on and had no problem understanding his Miranda rights. Ramey took a drug test at the station, and the results indicated he had methamphetamine, amphetamines, and marijuana in his blood.
Officer Reddy testified that in his investigation, he discovered Ramey had a suspended driver’s license. He found it odd that Ra-mey had a suspended driver’s license yet was found in possession of keys to a newer model vehicle. When officers later spoke with Zimmerman, she said she was missing keys. The keys found on Ramey were to the car in her garage.
On cross-examination at trial, defense counsel questioned Officer Reddy on the unusual aspects of the incident as indicators of the lack of intent to commit a burglary, namely the lights were on in the house, Ramey had a dog with him, he had no weapons, he complied with the officer’s requests, Ramey left his hat and shirt in the front yard, he asked for a drug test, and Zimmerman was not threatened or harmed in any way when confronted by Ramey.
Officer Jason Simmons testified to his assistance in getting Zimmerman back to her house. He said the charger/base for Zimmerman’s cordless phone was not plugged in. When he placed the cox'd back into the base, the phone had worked properly. Zimmerman told Officer Simmons that her phone worked fine before she went to sleep that night. Officer Simmons said Zimmerman had called the police department and advised dispatch she was missing some money. When Officer Simmons spoke with Zimmerman the next morning, she said she was missing $20 and then later said it was probably $17 or $18.
Officer Jon Schenk followed up with Zimmerman the next morning as to several missing items. When he helped Zimmerman search her house, they found Zimmerman’s driver’s license, bank cards, pictures, and other cards on the floor and steps leading into the attached garage. At this point, Officer Schenk noticed that the driver’s side door to Zimmerman’s car was open. Zimmerman said she did not put her cards on the floor or leave the car door open. Officer Schenk also found a pocket knife on the front porch of the residence, along with a shirt in the front yard. Neither of those items were Zimmerman’s. On rebuttal, Officer Schenk testified he went back to Zimmerman’s house during tire trial and took pictures looking from the kitchen down the hallway and to the garage. Those photographs showed there is no window in the door from the garage to the hallway and how difficult, if not impossible, it is to see the garage door from the kitchen area.
Ramey took the stand in his own defense. He admitted to being a drug addict. He was drinking beer and Crown Royal on the day in question. He said he also had taken some pills for pain, but he did not know what they were. Ramey had his dog with him during the incident. When Ramey passed Zimmerman’s home, he began having problems breathing and his chest was constricting. Pie pulled off his shirt, and his hat fell off his head. He walked up to Zimmerman’s front door and knocked to try and get someone to answer. He said his life began flashing before his eyes. When no one answered the door, he turned the knob and pushed really hard. He heard a loud popping sound as he pushed through the door.
Ramey testified he knew he should not have been in the house, but he was afraid for his life and just wanted to use a phone to call for help. When Ramey came into contact with Zimmerman, he said he held his hands up, backed away, and tried to look like he posed no threat to her. He asked Zimmerman for help, but she picked up the phone and went outside. Ramey said he told Zimmerman to call for an ambulance. Ramey said he still felt cold, but he needed something to drink. As he was looking around the kitchen, Ramey said he saw a car in the garage and decided he could not wait for the ambulance. He grabbed Zimmerman’s wallet and car keys and took them to the front door looking for Zimmer man. When he could not find her, he headed to the garage because he needed to go to the hospital. The step down into the garage caught Ramey by surprise, and he dropped Zimmerman’s wallet causing the contents to spill onto the floor.
In the garage, Ramey opened the car door and then decided it was wrong to take someone else’s car. Feeling thirsty again, Ramey went back into the kitchen and started looking through the kitchen cabinets. Ramey testified he heard a noise coming from the back room and his first thought was it was a person who could help him get to the hospital. When he checked the back room, no one was there, and the next thing he heard was Officer Reddy telling him to put his hands in the air. Ramey testified he put Zimmerman’s car keys in his pocket and came out of the room with his hands in the air. Ramey testified he asked for a drug test to find out what pills had caused his condition.
Ramey claimed he had no intent to steal anything in the house. He said he grabbed Zimmerman’s wallet and keys to take them to her so she could drive him to get help. He denied taking any money out of Zimmerman’s wallet.
In front of the jury, Ramey discussed the drug and criminal damage to property charges he had pled guilty to before the start of the trial. The State had charged Rameywith aggravated burglary, misdemeanor theft, misdemeanor criminal damage to property, felony possession of methamphetamine, possession of drug paraphernalia, and vehicle burglary. On the day of trial, Ramey pled guilty to the charges of criminal damage to property, possession of methamphetamine, and possession of drug paraphernalia. The jury convicted Ramey on the remaining charges. The trial court sentenced Ramey to a presumptive term of 130 months’ incarceration on the aggravated burglary conviction and then concurrent terms on the remaining convictions.
Ramey appeals.
Prosecutorial Misconduct
Ramey first argues multiple instances of prosecutorial misconduct denied him a fair trial. We agree.
The State has made sure we understand that because Ramey pled guilty at trial to a number of counts, any resolution on this case does not affect Ramey’s convictions for drug possession, possession of drug paraphernalia, and criminal damage.
Appellate review of prosecutorial misconduct allegations involves a two-step process. First, we must decide whether the comments were outside the wide latitude a prosecutor is allowed in discussing the evidence. If so, there was misconduct. Second, if misconduct is found, we must determine whether the improper comments prejudiced tire jury and denied the defendant a fair trial. See State v. Marshall, 294 Kan. 850, 856, 281 P.3d 1112 (2012).
There are several factors to consider in analyzing this second step, namely whether the misconduct (1) was gross and flagrant; (2) was motivated by prosecutorial ill will; or (3) would have likely had little weight in the minds of the jurors because the evidence was of such a direct and overwhelming nature. None of these three factors is individually controlling. 294 Kan. at 857. Additionally, any prosecutorial misconduct must meet the “dual standard” of both constitutional harmlessness and statutory harmlessness to uphold the conviction. See State v. Tosh, 278 Kan. 83, 97, 91 P.3d 1204 (2004) (stating that before the third factor can ever override the first two factors, appellate court must be able to say harmlessness tests of both K.S.A. 60-261 and Chapman v. California, 386 U.S. 18, 22, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967], have been met).
Inadmissible Evidence
During cross-examination, the prosecutor asked Ramey, “Why don’t you tell the jury what convictions you have that involve theft or dishonesty.” Defense counsel objected and requested a mistrial, claiming Ramey had not opened the door to that evidence. The prosecutor disagreed. The trial judge held, “As far as die objection to the question, I will sustain that. As to a mistrial, there’s been no criminal histoiy that’s been introduced into evidence and that’s denied.” On appeal, Ramey claims there was no evidence in his direct testimony that even remotely attempted to bolster his own credibility. Ramey argues the prosecutor did not point to evidence that showed Ramey had opened the door. The court never asked the prosecutor to provide justification.
The prosecutor s comments were erroneous and outside of the wide latitude allowed the prosecutor. K.S.A. 60-421 provides that no evidence of a defendant’s prior crimes “shall be admissible for the sole purpose of impairing his or her credibility unless the witness has first introduced evidence admissible solely for the purpose of supporting his or her credibility.” On appeal, the State cites no examples in Ramey’s testimony where he opened the door to evidence of his prior crimes.
Of course, the preferred practice is for the prosecutor to first raise the issue of K.S.A. 60-421 evidence to the trial judge, outside the presence of the jury, to avoid possible prejudice to the defendant in the event the trial court refuses to allow the prior crimes evidence.
Next, Ramey objected to the following questioning of Zimmerman by the prosecutor:
“Q.... I found the section, Ms. Zimmerman, about the previous testimony, when Mr. Ramey’s attorney asked you questions. Okay. Do you recall him asking you: And you indicated that you did not know Mr. Ramey before? . . .
“A. No.
“Q. And your answer was no, right?
“A. I have never seen him before.
“Q. Okay. The next question he asks was . . . : Had you ever been drinking with him at all—
[DEFENSE COUNSEL]: Objection.
“A. Not unless he comes to bingo.
“[DEFENSE COUNSEL]: Objection. Relevance to these proceedings. I wasn’t even the attorney then.
“[PROSECUTOR]: He is still bound by prior attorney’s actions.
“THE COURT: Objection is overruled. The court will note that [defense counsel] was not the attorney at that time for Mr. Ramey.
“[PROSECUTOR]: Okay. No further questions. Thank you.”
Ramey argues this testimony was irrelevant and a tactless question by prior defense counsel. He contends tire prosecutor repeated this question for the sole purpose of inflaming the jury against him. The State argues it is clear from the entire trial record that the prosecutor asked these questions as part of the presenta tion of inconsistent statements made by Ramey regarding the circumstances of the case and why he entered Zimmerman’s home. The State argues even if it was erroneous, the error was brief and the topic was not revisited by the prosecutor.
This court has previously addressed claims of prosecutorial misconduct for statements made before a judge at the preliminary hearing and at sentencing. See State v. Roland, No. 101,879, 2010 WL 1078454, at *1-3 (Kan. App. 2010) (unpublished opinion) (sentencing), rev. denied 292 Kan. 968 (2011); State v. Clelland, No. 93,001, 2005 WL 1805250, at *3-5 (Kan. App.) (unpublished opinion) (preliminary hearing), rev. denied 280 Kan. 985 (2005), cert. denied 548 U.S. 912 (2006). In both Roland and Clelland, die appellate court grappled with the question of whedier to apply the traditional prosecutorial misconduct standard that is normally applied in jury trials. Ultimately, both panels applied the traditional standard. Roland, 2010 WL 1078454, at *2; Clelland, 2005 WL 1805250, at *3. The problem in the case at bar is that the statements complained of by defense counsel were questions made by prior defense counsel at the preliminary hearing. Further, prior defense counsel’s questioning of Zimmerman on this topic continued for four additional questions into Zimmerman’s drinking habits. The prosecutor’s question during trial was a repeat of one of the questions asked by defense counsel at the preliminary hearing. There was no attempt by defense counsel to question Zimmerman at trial about her drinking habits. There was no valid reason to refer to the previous question.
Accusations of Lying
Next, Ramey contends the prosecutor improperly accused him of lying several times throughout the trial either during cross-examination or closing argument.
During cross-examination, tire following questioning occurred:
“Q. [PROSECUTOR:] You told us your version of why you went into the house that night, right?”
“A. [RAMEY:] Yes.
“Q. You expect tírese people to believe that version, don’t you?
“[DEFENSE COUNSEL]: Objéction. That’s argumentative.
“THE COURT: Overruled.
“A. Yeah. I would like them to believe that.”
“[DEFENSE COUNSEL]: Objection. That asks for a conclusion, how is he supposed to know ....
“[PROSECUTOR]: He can answer the question, if he knows, then he can answer the question rather than be instructed on how to answer by his attorney.”
During closing argument, the prosecutor made the following comments:
“Attorneys don’t just make stuff up out of thin air. They have to have reasonfs] to ask those questions. And he comes up with this bizarre version, that they were drinking buddies. That’s insulting. . . .
“. . . And he comes up with this version that you heard yesterday that his chest hurt, he was breathing so hard. Oh, I’m in terrible shape, right? . . .
“He is cognizant enough at marker 28:56 to tell the officer I asked her to call tire police. I asked her to call the police. He is already formulating some story, some defense. . . .
“. . . Why he comes up with this theory today over the last two days — let’s face it, it’s his last-ditch hope. It’s his last ditch hope.
. . He makes up this version about how he saw the car from the kitchen. That’s physically impossible. It’s really hard to keep stuff straight when you make it up on the fly.”
Ramey argues that just like what occurred in State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005), the prosecutor avoided the words he and liar but still used the phrases “makes up” and “comes up with” which can only be construed as indicating that Ramey was lying. In Elnicki, a prosecutor’s comments about the defendant’s “ yam,’ ” “ ‘fairy tale,’ ” “ ‘fabrication,’ ” “ ‘tall tale,’ ” and “ ‘spin’ ” constituted improper commentary on the defendant’s credibility. See 279 Kan. at 57-68.
Ramey also argues the prosecutor’s statement that defense counsel was instructing Ramey how to testify insinuated that Ramey was lying and defense counsel was suborning perjury.
The State responds that the prosecutor’s questioning of Ramey’s lack-of-intent defense was within the wide latitude granted a prosecutor during cross-examination of a witness.
However, the State concedes the prosecutor’s comments that the bizarre story of Ramey and Zimmerman being drinking buddies was insulting, that Ramey was already formulating his defense when he asked Zimmerman to call the police, that tire intoxication defense was his last ditch hope, and that he made up the version of seeing the car in the garage were all outside of the wide latitude granted the prosecutor. See State v. Graham, 277 Kan. 121, 129, 83 P.3d 143 (2004) (similar comments about defendant fabricating a story; court stated that rather than being commentaries on the evidence, the comments were expressions of the prosecuting attorney’s opinion the defendant was fabricating her testimony); see also Gershman, Prosecutorial Misconduct § 11:27, p. 530 (2d ed. 2013) (“Courts caution prosecutors against characterizing testimony as a lie’ because such categorical and conclusory opinions make the prosecutor an unsworn witness and invade the province of the jury to determine credibility.”). We agree that the prosecutor’s comments were well outside the wide latitude granted the prosecutor in arguing the case to the jury and were obviously intentional and prejudicial.
Vouching for Witness’ Credibility
Next, Ramey argues the prosecutor improperly vouched for Zimmerman’s credibility during closing argument. We agree. The prosecutor stated:
“Because die only answer that they had is, is that this lady right here, made a mistake on the amount of money that she reported to the police the first time. I mean, seriously, do you think she lied to die police? Do you drink she made this up? Do you think she fabricated some story so she could get $14 back? Come on, diat’s insulting.”
Ramey contends Zimmerman’s credibility was not for the prosecutor to judge, but rather for the jury to determine, and the prosecutor’s statements were outside the latitude of permissible conduct. The State responds that the crucial issue was not how much money Ramey took but whether he took any at all. The State contends the comment was not to bolster Zimmerman’s credibility but a statement by the prosecutor in stating Zimmerman was not wrong about missing her money,
In Elnicki, during the rebuttal portion of the State’s closing argument the prosecutor commented on the victim’s credibility, telling the jury, “ ‘[Y]ou know she was telling you the truth.’ ” 279 Kan. at 64. Noting that this statement was in response to defense counsel’s argument that the victim was lying, the Elnicki court quoted State v. McKinney, 272 Kan. 331, 347, 33 P.3d 234 (2001), and then stated: “While the prosecutor’s comments here about [the witness’ credibility] are not necessarily prejudicial, they are nevertheless error.” 279 Kan. at 64. In the instant case, the prosecutor’s comment that he found defense counsel’s questioning of whether Zimmerman would lie about $14 to be insulting was improper personal comment on the prosecutor’s part. The prosecutor was within his duty to comment that Zimmerman may have mistakenly reported the amount of money to the police. However, the prosecutor improperly vouched for her credibility with his personal opinion that the defense’s theory was insulting.
Misstated Facts and Law
Next, Ramey argues the prosecutor misrepresented several facts during closing argument by stating that Ramey admitted everything on all the charges except intent to commit the crimes. Ramey points out that he claimed he never took any money from Zimmerman’s purse for the theft charge and he admitted to opening Zimmerman’s car door for the vehicular burglary but never entered tire car.
On tire first alleged misstated fact, the State indicates the complaint and the jury instructions charge the theft of keys and/or United States currency. Consequently, Ramey does not dispute that he was in possession of Zimmerman’s car keys. Similarly, he does not dispute that he opened Zimmerman’s car door. It was then for the jury to determine Ramey’s intent based on the car door being open, the contents of Zimmerman’s wallet on the garage floor and steps, and Ramey’s possession of her car keys. We do not find the prosecutor misstated the facts of the case in light of the evidence and the stipulations of guilt to the other charges.
Ramey also argues the prosecutor misstated the law in two instances during closing argument. First, the prosecutor stated, “[Defense counsel] also argues that [Zimmerman] left the house, therefore it can’t be aggravated? The law is very clear. If she’s in there at any given time, it’s an aggravated burglary.” Ramey argues the timing of when he decided to commit the theft was critical if the intent did not represent itself until after Zimmerman left her house. If the intent and human presence do not match up, Ramey argues he would have been guilty of burglary but not aggravated burglary. Thus, he argues the prosecutor’s argument led the jury to believe the opposite. Second, Ramey claims the prosecutor improperly argued that since he pled to the general intent crimes, he had the requisite intent to commit tire specific intent crimes of burglary and theft. He argues voluntary intoxication may negate the intent required to commit a theft or burglary, but it does not negate the intent necessary to commit criminal damage to property. See K.S.A. 2013 Supp. 21-5205; State v. Hernandez, 292 Kan. 598, 606, 257 P.3d 767 (2011). Ramey argues the prosecutor’s misrepresentation was intentional in light of the fact that Ramey did not initially request an instruction on voluntary intoxication but only did so after the prosecutor argued it was required based on the evidence.
We do not find tire prosecutor misstated the law on either tire elements of aggravated burglary or voluntary intoxication. In State v. Fondren, 11 Kan. App. 2d 309, 310, 721 P.2d 284, rev. denied 240 Kan. 805 (1986), the court stated that aggravated burglary contains the requirement that the place of the burglary be occupied by a human being at some point during the course of the burglary. The prosecutor’s comment was not a misstatement of the law as found in Fondren. Further, the jury instructions properly instructed the jury on the elements of aggravated burglary and also included three fact-specific voluntary intoxication instructions. Even if there was a slight misstatement of the law, it did not amount to reversible error.
Inflammatory Comments
Next, Ramey argues the prosecutor made inflammatory comments throughout the trial that denied him a fair trial. The prosecutor made several comments about Ramey being a drug addict. During closing argument the prosecutor stated, “Let’s start off with what is the theme of the day? I am too stoned to be guilty. Is that it? Is that where we are at?” Ramey argues these statements were intended to enrage the jurors rather than inform them, and resulted in a conviction based on the outrage over his drug abuse.
We find no error in the prosecutor’s repeated comments about Ramey being a drug addict. Ramey’s claim of being a drug addict and the use of a voluntary intoxication defense made his drug addiction an appropriate subject for argument. The prosecutor may have been relentless in discussing Ramey’s drug problems, but it was certainly within the wide latitude allowed the prosecutor in exploring the evidence.
During rebuttal argument, the prosecutor stated:
"During voir dire, [defense counsel] told you the tragic story of the jury trial he had when tire rape victim made up the story. You know, does it have anything to do with this case or a jury selection question? No, it was designed to get your sympathy. To start thinking about sympathy.
“[DEFENSE COUNSEL]: Objection. It was part of reminding them to follow that. . . instruction. Not to hold against a person who didn’t testify. At that point we didn’t know if he was going to testify or not.”
Ramey argues the prosecutor inflamed the jury with comments made by defense counsel that had no bearing on his guilt or innocence.
Clearly both the prosecutor and defense counsel tried to persuade tire jury to believe their respective side of the case. Both attorneys in this case argued passionately for their clients. While defense counsel reprimands the prosecutor for arguing that defense counsel was only trying to get sympathy from the jury, that is exactly what defense counsel was doing, and it was even more egregious at other times. In his opening statement, defense counsel stated, “Ms. Zimmerman’s the one who was frightened in her own home. I had that happen to me a long time ago and it’s no day at the beach.” Defense counsel’s cite of a personal example of when he was the victim of a crime had no relevance to the case and was an obvious attempt to make the jury feel sympathetic toward defense counsel.
During closing argument the prosecutor said, “Remember the preliminary hearing that Ms. Zimmerman had to go through? Remember that testimony.” Ramey argues it is improper for the prosecutor to ask the jury to focus on the pain that testifying may have caused the victim-witness. See Tosh, 278 Kan. at 90-93. We agree.
A prosecutor should not make statements intended to inflame the passions or prejudices of the juiy or to divert the jury from its duty to decide the case based on the evidence and the controlling, law. State v. Cravatt, 267 Kan. 314, 336, 979 P.2d 679 (1999). Similar to the “ ‘rape her again’ ” comments in Tosh, 278 Kan. at 90, the court in State v. Villanueva, 274 Kan. 20, 33-36, 49 P.3d 481 (2002), considered the prosecutor’s closing argument, “ ‘The funny thing is that’s not the — that’s not the only rape that took place in this case. The second rape . . . took place when she had to come in here and had her character attacked and her memory attacked.’ ” The court found the prosecutor’s comments were outside the scope of proper argument and improperly appealed to the sympathies of the jury but did not demonstrate ill will when considered in light of die trial record as a whole. 274 Kan. at 34-35. In the case at bar, we agree the prosecutor’s comments were outside the wide latitude granted the prosecutor in arguing the case when he referenced the pain caused to the victim by having to testify in the preliminary hearing.
Ramey’s Desire for a Jury Trial
Next, Ramey argues the prosecutor improperly commented on his right to a jury trial.
During the prosecutor’s cross-examination of Ramey, the following occurred:
“A. [RAMEY:] Well, I was trying to explain my reason for going into the home. And what my intent was, because it says you got to follow all the elements of the law. I don’t feel that I had criminal intent.
“Q. [PROSECUTOR:] Okay. And you said just a minute ago, that you don’t think you’re guilty because the State cannot prove all of the elements of the crimes; correct?
“A. Correct.
“Q. Okay. Did you do legal research and have a friend from the outside send you legal research so you could formulate this defense?
“[DEFENSE COUNSEL]: Objection, judge. This is outside the scope of direct exam.
“[PROSECUTOR]: It goes to his intent. It goes to the very nature of the testimony that he has given and the testimony that he is wanting these people to believe that he could not form the intent to burglarize this house, steal this property, or burglarize the vehicle.
“[DEFENSE COUNSEL]: But it doesn’t go to the intent of what happened October the 10th. Again, he is talking about something that happened some time later when he started to do some research.
“[PROSECUTOR]: I am laying tire foundation for that Judge. I can prove it.
“THE COURT: I am going to sustain the objection now, but allow you to go ahead and ask the questions that you are laying tire foundation for.
“Q. Okay. We’ve established that. You did your own legal research on the 10th, correct?
“A. Yeah. I wanted to know what the statute said.
“Q. Okay. And did you have this discussion with your girlfriend that if you could show that the intent wasn’t there, that you could beat the meth, tire criminal damage, the criminal trespass, et cetera?
“A. Possibly.
“Q. Okay.
“A. Because it goes along with the truth.
“Q. Pardon?
“A. Never mind.”
In closing argument, the prosecutor touched on the subject again with the following comments:
“So he does some research. Has the girlfriend send him some research. How can he get out of it? How can he beat this charge? How can he beat it? Voluntary intoxication. That’s the only possible defense left, right? That’s tire only possible defense left. And he comes up with this version that you heard yesterday that his chest hurt, he was breathing so hard. Oh, I’m in terrible shape, right? How did he get there? Crown Royal, marijuana, meth, Valium, and dilaudid. Okay. Voluntary intoxication. So, I can’t be guilty because I was so stoned, right?”
Ramey argues the prosecutor used Ramey’s desire to contest his guilt as evidence that he was guilty.
The prosecutor did not expressly question Ramey’s right to have a jury trial. See State v. Tosh, 278 Kan. 83, 91, 91 P.3d 1204 (2004) (Tosh argued that it was highly improper to tell the jurors that they should consider why he was exercising his constitutionally guar anteed right to a jury trial.). In State v. McReynolds, 288 Kan. 318, 324, 202 P.3d 658 (2009), the prosecutor told the jurors in voir dire that “ ‘any person accused, whether they’re guilty or not, has a right to have a jury trial, even guilty people.’ ” The McReynolds court found the prosecutor’s statement was not outside the bounds of permissible statements. The court held: “Even if the reference to guilty people deserving a fair trial was, in isolation, a technically inaccurate statement of the law, the entire statement clearly placed the burden on the State to prove guilt and clearly articulated the presumption of innocence.” 288 Kan. at 324.
In the case at bar, the prosecutor’s questions covered how Ra-mey came to the understanding that voluntary intoxication would be a defense to the charges. Ramey opened the door to this questioning. While explaining that he did not have any criminal intent when he went in Zimmerman’s house, he said, “And what my intent was, because it says you got to follow all the elements of the law. I don’t feel that I had criminal intent.” The prosecutor explored how Ramey came to that understanding by doing his own research and having his girlfriend research the issue. We find the prosecutor’s questions were within the evidence presented by Ra-mey and a proper exploration of Ramey’s testimony that he had no intent to commit the crimes in this case.
Personal Opinion
Last, Ramey argues the prosecutor improperly gave his personal opinion regarding Ramey’s guilt. During closing argument, the prosecutor stated:
“Legally, Mr. Ramey and liis attorney drafted this stipulation and put it into the record that he intentionally committed criminal damage on October tire 10th.
“So what you have to do to find him not guilty on the others is ignore the law, ignore the facts, and ignore Mr. Ramey and his attorney.
“Ladies and gentleman, it’s real simple. Go back there, sign the jury verdict form guilty on all counts. Thank you.”
The complained-of statement was not the prosecutor’s personal opinion of the case. Rather, he stated that only if you ignore foe facts, law, and Ramey’s stipulation to the other offenses would you be able to find him not guilty. The prosecutor’s comment was a reverse way of saying that all the evidence proves Ramey is guilty. We do not find the comment was outside the wide latitude allowed the prosecutor in arguing the case to the jury during closing argument.
Did Prosecutorial Misconduct Produce Cumidative Error Requiring ReversalP
In support of the argument that the prosecutor s comments were gross and flagrant, Ramey states the prosecutor was experienced and there are no recent developments in the law that would justify the comments. He argues the prosecutor committed misconduct 23 times and, thus, the misconduct was not isolated by any stretch of the imagination. While we do not count 23 instances of misconduct, we believe the prosecutor committed misconduct in several instances: (1) the allegation of prior crimes of theft or dishonesty; (2) tire bizarre nature of Ramey s story and how he allegedly manufactured his defense; (3) the vouching for Zimmerman’s credibility; (4) the inappropriate question about Zimmerman’s drinking habits; and (5) the trial causing more pain to Zimmerman.
Ramey argues ill will is present again by the repeated nature of the misconduct and specifically through the misconduct of the prosecutor improperly stating tire law on voluntary intoxication and his disregard for courtroom decorum by repeatedly stating he could ask any question he wanted on cross-examination. Ranrey maintains tire repeated misconduct severely affected his trial because he had presented sufficient evidence of a voluntary intoxication defense and also had shown the evidence of tire vehicular burglary was extremely circumstantial because there was no evidence he ever got into the car. Ramey argues the evidence was not overwhelming against him in this case and the State intentionally ben-efitted from the prosecutor’s misconduct.
The State argues virtually all of the comments of the prosecutor fell within the wide latitude given to him in cross-examining witnesses or arguing the case to the jury. The State contends that when some of the statements are placed in context, they were simply comments on tire evidence. The State contends Áre prosecutor aggressively challenged Ramey’s voluntary intoxication defense as any good prosecutor would do. Additionally, the State indicates the trial court sustained many of defense counsel’s objections and the subject was not approached again. The State also argues the evidence was overwhelming and the juiy was saddled with the job of deciding Ramey’s intent when he broke down Zimmerman’s door that evening. The State maintains the jury simply did not buy Ra-mey’s defense that he was only looking for a way to get medical help as quickly as possible and Zimmerman’s house provided the best option.
It is proper for a prosecutor to assert “reasonable inferences based on the evidence and that when a case turns on which of two conflicting stories is true, certain testimony is not believable.” State v. Davis, 275 Kan. 107, 121, 61 P.3d 701 (2003).
Within tire context of the multiple statements or actions by the prosecutor that constituted misconduct, Ramey contends these errors cumulatively denied him a fair trial.
“ ‘ “ ‘Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied tire defendant a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.’ ” ’ ” State v. Baker, 281 Kan. 997, 1017, 135 P.3d 1098 (2006).
We agree. As cited above, the prosecutor made many comments that were obviously improper and prejudicial. While there was substantial evidence against Ramey, the facts also made for a plausible voluntary intoxication defense. Because the improper comments were so numerous and prejudicial, and because the State’s case, although strong, was not overwhelming, we find there was cumulative error which requires reversal and remand for a new trial.
Other Appeal Issues Raised
Jury Question
Ramey argues the trial court misrepresented tire law in responding to a question submitted by the jury. We disagree.
After tire jury has retired for deliberation, it may seek additional information on a point of law from the trial court. K.S.A. 22- 3420(3). Our Supreme Court has set forth the appropriate standard of review in matters involving K.S.A. 22-3420(3):
“A trial court may not ignore a jury’s request submitted pursuant to K.S.A. 22-3420(3) but must respond in some meaningful manner or seek additional clarification or limitation of the request. It is only when the trial court makes no attempt to provide a meaningful response to an appropriate request or gives an erroneous response that the mandatory requirement of K.S.A. 22-3420(3) is breached. Once the trial court attempts to give an enlightening response to a jury’s request or seeks additional clarification or limitation of the request, then any issue as to the sufficiency or propriety of the response is one of abuse of discretion by the trial court.” State v. Boyd, 257 Kan. 82, Syl. ¶ 2, 891 P.2d 358 (1995).
In State v. Jones, 41 Kan. App. 2d 714, 722, 205 P.3d 779 (2009), rev. denied 290 Kan. 1099 (2010), the court indicated this passage from Boyd suggests a two-step analysis to review a trial court’s application of K.S.A. 22-3420(3): (1) A de novo review to determine if the statute has been breached because the trial court failed to respond to the jury’s question or because the trial court provided an erroneous response to the question; and (2) if the trial court has complied with diese mandatory statutory requirements, our court will employ an abuse of discretion standard in evaluating the sufficiency or propriety of the response.
After the jury retired for deliberations, it submitted the following question about Instruction No. 7, part 3: “Does it mean that before he broke down the door did he think about doing so to steal or after he got in there and saw the purse he decided to steal $ or keys?”
After discussion and agreement by counsel, the trial court responded to the jury’s question by referring the jury to the case of State v. Gutierrez, 285 Kan. 332, 172 P.3d 18 (2007), and specifically directing them to paragraphs 2, 3, and 4 of the syllabus:
“Aggravated burglary is defined in K.S.A. 21-3716 as ‘knowingly and without authority entering into or remaining within any building ... in which there is a human being, with intent to commit a felony . . . therein.’ As used in that statute, the phrases ‘entering into’ and ‘remaining within’ refer to legally distinct factual situations. The entering into element is satisfied when the evidence shows that a defendant crossed tire plane of a building’s exterior wall. Remaining within refers to a defendant’s presence in the building’s interior after any entering into, authorized or unauthorized, has been accomplished.”
“Both unauthorized entering into and unauthorized remaining within may be present in a single burglary or aggravated burglary case. Neither is necessarily instantaneous.”
“To commit a burglary or aggravated burglaiy, a defendant’s formation of intent to commit a felony in a building must, at some point, coexist with an unauthorized entering into the building or an unauthorized remaining within it. It is not necessary, however, to prove remaining within burglary or aggravated burglaiy to show that the intent to commit a felony was precisely contemporaneous with any withdrawal of a defendant’s authority to be inside the building.”
On appeal, Ramey morphs the trial court’s responsibility in addressing the jury’s question into a situation where the trial court must also inform the jury as to other elements of the crime of aggravated burglaiy, namely that a human being must be present within the building. See K.S.A. 2013 Supp. 21-5807(b). Our reading of the jury’s question does not extend that far. The jury’s question was limited to the intent to commit the crime. When the trial court addressed the jury’s question, it did not somehow negate the jury’s responsibility to still find the other elements of the crime beyond a reasonable doubt. The jury was specifically instructed that its verdict “must be founded entirely upon die evidence admitted and the law as given in these instructions.” In responding to the jury’s question, the trial court correctly instructed the jury on the law regarding the intent to commit the underlying felony for aggravated burglary and whether the intent to commit the felony was in existence when the defendant entered die house or whether the intent could surface later upon entry. See Gutierrez, 285 Kan. 332, Syl. ¶¶ 2, 3, 4. There was no abuse of discretion in the trial court’s answer to the jury’s question.
Lesser Included Offense Instruction
Along the same lines as the previous issue, Ramey argues the trial court should have given the jury a lesser included offense instruction for burglaiy. He did not request an instruction for simple burglaiy at trial, but his request for the lesser included offense instruction of attempted aggravated burglaiy was denied. The State does not address Ramey’s argument, and it appears by the argument in its appellate brief the State mistakenly understood Ramey’s claim to be that the trial court erred in failing to instruct on the lesser included offense of attempted aggravated burglary.
When a defendant fails to request or does not object to tire trial court’s failure to give a lesser included offense instruction, it is reversible error only if tire failure to give the instruction was clearly’ erroneous. See K.S.A. 2013 Supp. 22-3414(3); State v. Harris, 293 Kan. 798, 806, 269 P.3d 820 (2012). Since Ramey did not ask for a burglary instruction as a lesser included offense of aggravated burglary, we will use the clearly erroneous standard of review when making our decision on this point.
To determine whether it was clearly erroneous for the trial court to fail to give an instruction, we must decide whetiier an error occurred. If the trial court erred in failing to give a particular instruction, we will then decide whether it was a reversible error. The test for clear error requiring reversal is whether we are firmly convinced that tire jury would have reached a different verdict had the instruction error not occurred. The burden of showing clear error remains with the defendant. See State v. Williams, 295 Kan. 506, 515-16, 286 P.3d 195 (2012).
Ramey does not cite any relevant cases addressing similar facts. He correctly points out that burglaiy is properly considered a lesser included offense of aggravated burglary. See K.S.A. 2013 Supp. 21-5109(b); K.S.A. 2013 Supp. 21-5807(a), (b). Ramey had the right to an instruction on simple burglary if the evidence, viewed in the light most favorable to his theory of the case, would justify a jury verdict based upon that theoiy and the evidence did not exclude a theory of guilt on the lesser offense. See K.S.A. 2013 Supp. 22-3414(3); State v. Williams, 268 Kan. 1, 15, 988 P.2d 722 (1999). To warrant an instruction on simple burglary, there had to be evidence that no one was in the home during tire burglary. Ramey argues a reasonable jury could have found him guilty of simple burglary. He contends that if he remained in Zimmerman’s house with the intent to commit a theft, he needed to form that intent while Zimmerman was still in the house. He cites State v. Fondren, 11 Kan. App. 2d 309, 310, 721 P.2d 284, rev. denied 240 Kan. 805 (1986), where the court stated that aggravated burglaiy contains the requirement that the place of the burglary be occupied by a human being at some point during the course of the burglary.
We have consistently held that the presence of a person in a structure at any time during a burglary constitutes aggravated bur-glaiy. See State v. Romero, 31 Kan. App. 2d 609, 610-12, 69 P.3d 205 (2003); Fondren, 11 Kan. App. 2d at 310-12; State v. Reed, 8 Kan. App. 2d 615, 616-19, 663 P.2d 680, rev. denied 234 Kan. 1077 (1983).
Ramey s construction of the aggravated burglary statute seems to frustrate tire purpose of the distinction between simple burglary and aggravated burglary, which is to recognize as a more serious crime those burglaries that can result in a dangerous and unexpected confrontation between the burglar and an occupant. See Fondren, 11 Kan. App. 2d at 310-12. In Reed, 8 Kan. App. 2d at 616-17, the court observed:
“The purpose behind the aggravated burglary statute is to describe a more serious offense than simple burglary when there is the possibility of contact between the victim and the burglar and the accompanying potential for a crime against the person to occur. This danger is just as great regardless of when during the burglary the victim comes to be in the building. . . . [T]he severity of the crime depends upon tire mere presence or absence of any human being in the same structure.”
Consequently, aggravated burglary does not require proof that the defendant knew diere was a person present in the building at the time it was burgled. The mere presence of a person during the crime is sufficient. See State v. Watson, 256 Kan. 396, 400-01, 885 P.2d 1226 (1994); Fondren, 11 Kan. App. 2d at 311.
Ramey was not alone in the house when he pushed in die front door. His theory of defense was not that he did not have the requisite intent when he pushed in the door or that he developed that intent while inside. Rather, Ramey’s theoiy of defense throughout the entire trial was an innocent intent based on his voluntarily drug-induced intoxication and a lack of general indicators of a burglary. If we view the evidence in the light most favorable to Ramey’s theory of the case, we cannot hold that a juiy could justify a verdict of simple burglary based upon that theory. See K.S.A. 2013 Supp. 22-3414(3). A verdict based on Ramey’s theory of defense would be a complete acquittal, not a lesser included offense. It was not clearly erroneous for the trial court to not instruct the jury on simple burglary as a lesser included offense.
Apprendi
Ramey also contends the trial court’s use of his prior convictions to enhance his sentence without them being proven to a jury beyond a reasonable doubt violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution as interpreted by Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Our Supreme Court has previously rejected this claim and continues to do so. State v. Adams, 294 Kan. 171, 185, 273 P.3d 718 (2012) (reaffirming State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 [2002]). We are duty bound to follow Ivory.
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Powell, J.:
One J. Webb appeals his second conviction for driving under the influence (DUI), arguing the preliminary breath test (PBT) administered to him was illegally obtained in violation of the Fourth Amendment to the United States Constitution. Specifically, Webb argues K.S.A. 2011 Supp. 8-1012(b) is unconstitutional because it allows an officer to request a PBT upon reasonable suspicion — rather than probable cause — that the driver was operating a vehicle while under tire influence of alcohol or drugs or both. Webb claims the officer did not have probable cause to arrest him for DUI without tire PBT results. Webb also claims the district court should have suppressed the breathalyzer test results because-the officer improperly coerced him into submitting to the test by threatening to obtain a search warrant to draw his blood if he refused.
Because the officer had probable cause without the PBT results to believe Webb was driving under the influence and because the officer had legal justification for threatening to obtain a search warrant after Webb’s initial refusal to take the breathalyzer test, we conclude Webb was not improperly coerced into ultimately submitting to the breathalyzer test, and we affirm the district court’s denial of Webb’s motion to suppress and Webb’s conviction for DUI.
Factual and Procedural History
On November 24, 2011, at 1:56 a.m., Officer Justin Warkentin of the Dodge City Police Department stopped a vehicle for an insufficiently illuminated license plate; Warkentin could not read the expiration date on the plate. At the time of the stop, Warkentin did not suspect the driver was impaired. ,
As he approached, Warkentin detected a strong odor of alcohol coming from inside the vehicle. Warkentin identified Webb as the driver and noted there were two passengers in the vehicle. The passengers admitted to drinking, but Webb denied having had anything to drink.
After he checked Webb’s driver’s license, Warkentin asked Webb to step out of the vehicle so he could determine whether the odor of alcohol was coming from Webb or his passengers. After Webb exited the vehicle, Warkentin determined there was a moderate odor of alcohol coming from Webb’s person and asked Webb a second time whether he had consumed any alcoholic beverages. Webb admitted to drinking one beer.
Webb agreed to perform two field sobriety tests and failed both; he displayed four out of eight clues of impairment on the walk- and-turn test and three out of four clues of impairment on the one-leg-stand test. At the conclusion of the field sobriety tests, Webb agreed to take a PBT, the results of which indicated his blood-alcohol level was .127.
Based upon Warkentin’s observations and the results of the PBT, Warkentin arrested Webb for DUI and transported him to the Ford County Sheriff s Department. At the sheriff s department, Warkentin gave Webb the required written and oral notices using the DC-70 implied consent advisory form and then requested Webb to submit to a breath test; Webb refused. Warkentin informed Webb that if he refused the breath test a search warrant would be obtained to draw his blood. Webb told Warkentin he was afraid of needles and reluctantly agreed to take the breath test. The test results indicated a blood-alcohol level of .125. Webb then admitted to drinking six beers.
Among other things, Webb was charged with DUI. He was convicted in the Dodge City Municipal Court and then appealed to the Ford County District Court. Prior to trial before the district court, Webb filed a motion to suppress the results of the PBT and the breathalyzer test. Following an evidentiary hearing, the district court denied Webb’s motion. Thereafter, Webb waived his right to a jury trial, and the parties submitted the case to the district court. After hearing testimony from Warkentin, the district court found Webb guilty of second-offense DUI, no proof of liability insurance, and operating a vehicle without a proper tag light. The court imposed an underlying sentence of 90 days in the Ford County Jail but granted probation for a term of 12 months.
Webb timely appeals.
Is K.S.A. 2011 Supp. 8-1012(b) Unconstitutional Because It Allows an Officer to Request a PBT upon Reasonable Suspicion Rather Than Probable Cause?
Webb first contends the district court erred in finding Warkentin had reasonable suspicion to request a PBT under K.S.A. 2011 Supp. 8-1001(b).
Under the challenged statute, a law enforcement officer can request a person to submit to a PBT if the officer has reasonable suspicion the person was operating a vehicle under the influence of alcohol or drugs or both. Webb claims this statute is unconstitutional because it implies consent to an otherwise unconstitutional search under the Fourth Amendment. Webb also argues that because probable cause is required to conduct a PBT, and the statute only requires reasonable suspicion to conduct such a test, the statute is unconstitutional as applied to him. Questions involving the constitutionality of statutes are questions of law subject to de novo review. Miller v. Johnson, 295 Kan. 636, 647, 289 P.3d 1098 (2012) (citing Brennan v. Kansas Insurance Guaranty Ass’n, 293 Kan. 446, 450, 264 P.3d 102 [2011]).
It is true that a PBT which utilizes deep lung air constitutes a search under the Fourth Amendment. State v. Jones, 279 Kan. 71, 76, 106 P.3d 1 (2005) (relying on Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 [1989]). However, we need not answer the question of whether tire reasonable suspicion threshold is constitutional because it is not dispositive of this case. Here, even though the implied consent statute only requires reasonable suspicion — rather than probable cause — -to administer a PBT, the district court determined War-kentin had probable cause. Therefore, if probable cause justified the PBT, tiren determining the constitutionality of K.S.A. 2011 Supp. 8-1012 is irrelevant to the disposition of this case. See Smith v. Kansas Dept. of Revenue, 291 Kan. 510, 519, 242 P.3d 1179 (2010) (officer had probable cause to administer PBT; thus, adjudication of constitutionality of PBT authorization statute was unnecessary).
Did the officer have probable cause to believe Webb was DUIP
“An appellate court generally reviews a trial court’s decision on a motion to suppress using a bifurcated standard. The trial court’s findings are first reviewed to determine whether they are supported by substantial competent evidence. Appellate courts do not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. The ultimate legal conclusion regarding the suppression of evidence is then reviewed de novo. If the material facts in a trial court’s decision on a 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. [Citation omitted.]” State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013).
Because the material facts in this case are not in dispute, the question of whether the officer had probable cause is a question of law over which we exercise unlimited review. See Martinez, 296 Kan. at 485. “Probable cause is the reasonable belief that a specific crime has been or is being committed [by] the defendant . . . .”
Allen v. Kansas Dept. of Revenue, 292 Kan. 653, 656-57, 256 P.3d 845 (2011), disapproved in part on other grounds by Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 290 P.3d 555 (2012). Whether probable cause exists “is determined by evaluating the totality of the circumstances” and considering “the information and fair inferences therefrom, known to the officer at the time of the arrest.” Allen, 292 Kan. at 657. When making a determination of whether probable cause exists, courts should not rigidly apply factors or merely count the facts or factors that support one determination over the other. 292 Kan. at 657.
Webb rightly notes there were some facts in his favor. Warkentin did not observe any indication in Webb’s driving that he was impaired, Webb produced his driver’s license without fumbling, and Webb did not have slurred speech. Nevertheless, Warkentin observed other evidence during their encounter that established probable cause to believe Webb was driving under the influence of alcohol. Warkentin stopped Webb for a traffic violation — his license plate was not sufficiently illuminated and Warkentin could not read the expiration sticker. Upon making contact with Webb, Warkentin smelled a strong odor of alcohol coming from inside the vehicle. Warkentin later determined a moderate odor of alcohol was coming from Webb’s person. While Webb initially denied drinking that evening, he later admitted to consuming one beer. Webb also failed both field sobriety tests. Based on these facts, we agree with the district court’s conclusion Warkentin had probable cause to believe Webb was driving under the influence, justifying Warkentin’s request that Webb submit to the PBT.
Moreover, our Supreme Court has found probable cause on similar facts. The Smith court found probable cause to arrest when the driver smelled of alcohol, had bloodshot eyes, admitted to drinking, possessed an open container, presented two clues of impairment on the walk-and-turn test, and presented one clue of impairment on the one-leg-stand test. Smith, 291 Kan. at 518-19; see also Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 431-32, 962 P.2d 1150 (officer had probable cause to believe driver was DUI when driver was speeding in the early morning hours, smelled of alcohol, had glazed and bloodshot eyes, and admitted to having had a few drinks), rev. denied 266 Kan. 1107 (1998). Weighing the totality of the circumstances, Warkentin had probable cause to believe Webb was driving under the influence of alcohol without considering the PBT results.
Because Warkentin had probable cause to believe Webb was driving under the influence, thereby justifying his request that Webb submit to the PBT, we need not address Webb’s claim that K.S.A. 2011 Supp. 8-1012 is unconstitutional. See Wilson v. Sebelius, 276 Kan. 87, 91, 72 P.3d 553 (2003) (“Appellate courts generally avoid making unnecessary constitutional decisions” where valid, alternate grounds for relief exist.).
Did the District Court Improperly Deny Webb’s Motion to Suppress, Specifically Finding the Breath Test Results Were Admissible Pursuant to the Kansas Implied Consent Statute Even Though Webb Had Previously Refused to Submit to Such Testing?
Next, Webb argues he was improperly coerced into submitting to a breath test, thus invalidating his consent and making the breath test results inadmissible. The City counters that Webb was not coerced because he never testified he felt threatened or coerced, and that even if he was coerced, such coercion was lawful.
The City has tire burden of proving consent to a search by a preponderance of the evidence. See State v. Brown, 245 Kan. 604, 606, 783 P.2d 1278 (1989). This is a question of fact, which we review to determine if substantial competent evidence supports the trial court’s findings. State v. Ransom, 289 Kan. 373, 380, 212 P.3d 203 (2009). To the extent resolution of this issue involves statutory interpretation, we exercise unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
The facts surrounding the breath test are not in dispute. At the sheriff s department, Warkentin gave Webb written and oral notice of the implied consent advisories using the DC-70 form. Webb refused to take the breathalyzer test. Warkentin then informed Webb that if he refused the breath test, Warkentin would obtain a search warrant to draw Webb’s blood. Webb told Warkentin he was afraid of needles and agreed to take the breathalyzer test. The results indicated Webb’s blood-alcohol level was .125.
Was Webb’s consent voluntary or due to improper coercionP
“Our state and federal Constitutions protect citizens from unlawful searches and seizures.” State v. Daniel, 291 Kan. 490, 496, 242 P.3d 1186 (2010), cert. denied 131 S. Ct. 2114 (2011). The Fourth Amendment to the United States Constitution provides:
“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 [w]arrants shall issue, but upon probable cause, supportedby [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Our Supreme Court has “interpret[ed] § 15 of the Kansas Constitution Bill of Rights to provide the same protection from unlawful government searches and seizures as the Fourth Amendment to the federal Constitution.” 291 Kan. at 498.
“ ‘Subjecting a person to a breathalyzer test, which generally requires the production of alveolar or “deep lung” breath for chemical analysis, . . . implicates similar concerns about bodily integrity and, like the blood-alcohol test . . . considered in Schmerber [v. California, 384 U.S. 757, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966)], should also be deemed a search. [Citation omitted.]’ ” Jones, 279 Kan. at 76 (quoting Skinner, 489 U.S. at 616-17). Moreover, under the United States and Kansas Constitutions, a search conducted without a warrant is per se unreasonable unless a specifically established exception applies. State v. Damm, 246 Kan. 220, 221, 787 P.2d 1185 (1990). Those exceptions include “ ‘consent; search incident to a lawful arrest; stop and frisk; probable cause plus exigent circumstances; the emergency doctrine; inventory searches; plain view or feel; and administrative searches of closely regulated businesses.’ [Citation omitted.]” State v. Sanchez-Loredo, 294 Kan. 50, 55, 272 P.3d 34 (2012). “It is the State’s [or City’s] burden to validate a warrantless search by fitting it within one of the recognized exceptions . . . .” State v. Johnson, 297 Kan. 210, 223, 301 P.3d 287 (2013).
Typically, lawful consent by the individual must be voluntarily, intelligently, and knowingly given, but in the context of DUI investigations our Supreme Court has declared: “[C]ompulsoiy testing for alcohol or drugs through drivers’ implied, even coerced, consent does not violate the [United States] Constitution; it is reasonable in light of the State’s compelling interest in safely on the public roads. [Citations omitted.]” Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 635, 176 P.3d 938 (2008). This notwithstanding, when “consent is obtained by threat of consequences without justification in law, such consent cannot be said to be voluntary.” State v. Brunner, 211 Kan. 596, 604, 507 P.2d 233 (1973), disapproved in part on other grounds by State v. Murry, 271 Kan. 223, 21 P.3d 528 (2001); but see City of Kingman v. Lubbers, 31 Kan. App. 2d 426, 428, 65 P.3d 1075 (2003) (when consent is obtained after informing a driver of actual legal consequences, the consent, if freely given, is valid), rev. denied 276 Kan. 967 (2003); see also Brown, 245 Kan. at 606 (when warrantless search is justified by consent, consent must be voluntarily, intelligently, and knowingly given).
As Webb does not challenge the propriety of the implied consent warnings, the question is, therefore, whether the officer’s threat to obtain a warrant in order to draw Webb’s blood had justification in law, i.e., was the officer legally entitled to seek a warrant in order to obtain a sample of Webb’s blood after he had refused to submit to a breathalyzer test? We conclude the answer to that question is yes.
Webb relies on State v. Adee, 241 Kan. 825, 829-30, 740 P.2d 611 (1987), to argue that once a defendant refuses to submit to testing pursuant to the Kansas implied consent statute, no further testing may be done. In Adee, the defendant was arrested for DUI and refused to submit to a blood test to determine his blood-alcohol concentration. The officer obtained a search warrant to extract a blood sample from the defendant. The defendant refused to cooperate in the taking of the blood sample, so the State charged him with obstructing legal process. The district court found the defendant not guilty of obstructing legal process, finding a search warrant could not be obtained after a defendant refused such testing. The State appealed.
On appeal, our Supreme Court held a search warrant could not be obtained to compel a blood sample after a defendant refused testing. 241 Kan. at 833. The court relied on K.S.A. 1986 Supp. 8-1001(f)(1)(E), which stated in part: “If the person refuses to submit to ... a test as requested . . . , additional testing shall not be given . . . .” (Emphasis added.) 241 Kan. at 831. The Court explained: “This provision is not construed to be a right of refusal but, rather, it was included in the statute ‘as a means to avoid the violence which would often attend forcible tests upon a rebellious drunk.’ ” 241 Kan. at 831 (quoting State v. Garner, 227 Kan. 566, 571-72, 608 P.2d 1321 [1980]).
The outright prohibition of forcible tests was slightly relaxed in subsequent versions of the statute. Upon review of the 2003, 2006, and 2007 versions of the Kansas implied consent statute, the Kansas Supreme Court and two panels of this court similarly recognized an officer could not compel a person to submit to testing except when that person had been involved in an accident involving death or serious bodily injury. See, e.g., State v. May, 293 Kan. 858, 865, 269 P.3d 1260 (2012); State v. Fritzemeier, No. 97,016, 2007 WL 2080481 (Kan. App. 2007) (unpublished opinion); State v. Befort, No. 91,565, 2005 WL 81499, at *3 (Kan. App. 2005) (unpublished opinion). Other than the narrow exception for injury or fatality accidents, tire implied consent statute applicable in May, Fritzemeier, and Befort was similar to the statute in Adee. Subsection (h) of the 2003, 2006, and 2007 versions of the Kansas implied consent statute stated:
“If the person refuses to submit to ... a test as requested pursuant to this section, additional testing shall not be given unless the certifying officer has probable cause to believe that the person, while under the influence of alcohol..., has operated a vehicle in such a manner as to have caused the death of or serious injury to another person.” (Emphasis added.) K.S.A. 8-1001(h).
However, in 2008, tire Kansas Legislature revised the implied consent statute further and eliminated subsection (h) entirely, changing the calculus in our view. We note that “when the legislature revises an existing law, the court presumes that the legislature intended to change the law that existed prior to the amendment.” Snellings, 294 Kan. 149,157, 273 P.3d 739 (2012). Because the Kansas Legislature took out the language prohibiting additional testing after a refusal, we presume the legislature intended to change the law, and the statute now allows for additional testing after a refusal. Our conclusion is bolstered by the language in K.S.A. 2011 Supp. 8-1001(t), which states: “Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.” Therefore, we hold that the Kansas implied consent statute no longer contains any prohibition against an officer obtaining a search warrant supported by probable cause to obtain blood from a driver even after the driver previously refused to submit to a test. Cf. State v. Declerck, 49 Kan. App. 2d 908, 919, 317 P.3d 794 (2014) (K.S.A. 2011 Supp. 8-1001[b][2] is unconstitutional to the extent it allows a search and seizure absent probable cause to believe the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol), petition for rev. filed March 6, 2014.
Despite the legislature’s revisions to the Kansas implied consent statute, it still contains more protections than are required by the federal Constitution. See generally Brunner, 211 Kan. at 603 (prior implied consent law prohibited compulsory test while constitution permitted it). Significantly, K.S.A. 2011 Supp. 8-1001(d)(3) states in pertinent part: “A law enforcement officer may direct a medical professional ... to draw a sample of blood from a person: ... if the person refuses to submit to and complete the test, if the person meets the requirements of paragraph (2) of subsection (b).” (Emphasis added.) Paragraph (2) of subsection (b) limits those instances to when the person was operating or attempting to operate a vehicle and the vehicle was involved in an injury or fatality accident and tlie driver could be cited for .any traffic offense. This language clearly limits the ability of an officer to obtain a blood draw, in the absence of consent, to those situations where there has been an injury or fatality accident and the driver could be cited for any traffic offense.
However, this limitation is not applicable to circumstances where an officer has probable cause to obtain a search warrant after a refusal, because a search warrant in these instances is a written order by a magistrate directing a medical professional to draw blood. See K.S.A. 22-2202 (search warrant is statutorily defined in part as a “written order made by a magistrate”). The statute limits the ability of law enforcement to direct a medical professional to draw blood, not a neutral magistrate’s ability to so direct. This makes sense because the United States and Kansas Supreme Courts have recognized the importance, even the preference, of utilizing a neutral and detached magistrate to determine “ whether or not to invade another’s body in search of evidence of guilt.’ ” Adee, 241 Kan. at 830 (quoting Schmerber, 384 U.S. at 770).
Accordingly, under K.S.A. 2011 Supp. 8-1001, Warkentin was statutorily, authorized to obtain a warrant to draw Webb’s blood even after Webb refused to submit to the breathalyzer test. However, the warrant would still have had to be supported by probable cause because, “ [generally, a threat to obtain rather than a threat to seek a search warrant will invalidate a subsequent consent if there were not then grounds upon which a warrant could issue.” Brbwn, 245 Kan. at 612. Because we have- already found that War-kentin had probable cause to believe Webb was driving under the influence even prior to the administration of the PBT, Warkentin did not improperly threaten a sanction not authorized by law; thus, Webb’s consent was voluntary.
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Leben, J.:
Aaron Lewis appeals the convictions that arose out of a high-speed police chase. He argues that a paramedic should not have been allowed to provide expert testimony because the substance of the testimony wasn’t disclosed to him 90 days before trial and the prosecutor didn’t provide an evidentiary foundation for the paramedic to provide expert testimony. But the 90-day requirement for disclosure is part of the Kansas Rules of Civil Procedure and does not apply to a criminal case like this one. And the paramedic testified that he had extensive training and experience with how drivers and passengers are injured in auto accidents— something he relied upon in his work to look for hidden injuries that needed immediate treatment. The district court did not err in allowing the paramedic’s testimony.
Lewis also claims that the prosecutor made improper comments that made the trial unfair, that the district court erred in its jury instructions, and that the district court erred in considering Lewis’ past criminal convictions when determining his sentences for the new offenses he was convicted of in this case. We have examined each of these claims, but we find no error. We therefore affirm tire district court’s judgment.
Factual and Procedural Background
One of the key issues at trial was whether Lewis was the driver or the passenger of the car that police pursued in the high-speed chase. Accordingly, we will set out in some detail the evidence presented to the jury about what happened, focusing on the evidence regarding each of the individuals who were apprehended after the car chase ended.
The events at issue here began on a Saturday morning in December 2006 when Kansas Highway Patrol Trooper David Morrison noticed that the windows on a black Pontiac Firebird appeared to be tinted more than allowed under Kansas law. When Morrison turned on his flashing lights to pull the car over, its driver kept going. Morrison and several other law-enforcement officers chased the Firebird at high speeds through Wyandotte County.
Eventually, the Firebird headed the wrong way on the Turner Diagonal, where it first sideswiped one car before colliding head-on with another. A few seconds after the Firebird came to a stop, a man wearing a dark jacket exited its passenger door and began to run away. Morrison and another highway patrol trooper, Curt Gabbert, chased the man. They apprehended him and later determined that he was Kenneth Evans. He had an abrasion on his forehead.
Shawn Okon, who witnessed the accident, stated that after the first man left the car, he saw a man sitting in the driver’s seat of the Firebird, lying over the center section of the car. Okon testified that the man in the driver’s seat then got out.
Trooper Michael Hamilton also reported to the scene. After he got out of his car, a witness pointed down the hill next to the road and said, “He ran down there.” Hamilton saw a man pounding on the rear door of a duplex about 50 yards from the road. The man was only wearing one shoe, a white tennis shoe. Hamilton ran to ward the man, yelling, “Police!” and “Get on the ground!” Hamilton said the man was staggering “as if his legs were badly hurt.”
Hamilton saw the man stumble into the duplex and noticed that his shoe fell off in the doorway. Hamilton yelled, “Police, open the door!” and then lacked the door open. Another trooper, Matthew Brooks, joined Hamilton inside the duplex, and they placed the man, later identified as Lewis, in handcuffs. Lewis had a broken rib, bruised lung, and abrasions to his right and left shins.
Brooks found a plastic baggie containing a white, powdery substance in Lewis’ jeans pocket. The troopers also found a white shoe in die Firebird, wedged between the brake pedal and the floorboard.
The State charged Lewis with aggravated battery, possession of cocaine, fleeing or eluding a police officer, obstructing official duty, and reckless driving. All of the charges were tried to a jury, and Lewis was convicted. On appeal, Lewis raises claims relating to tire admission of a paramedic’s testimony, to statements made by the prosecutor at trial, to jury instructions, and to his sentencing.
As for the paramedic’s testimony, defense counsel made a pretrial motion to keep out some potential evidence from the paramedic, Richard Christy, at trial — what’s called a motion in limine. In that motion, the defense orally argued that the State had not provided proper notice of any expert opinions Christy might give, citing a notice provision of the Kansas Rules of Civil Procedure, K.S.A. 2013 Supp. 60-226(b)(6)(A), (C). Under that provision, expert testimony generally must be disclosed 90 days before trial. The district court ruled that Christy could provide nonexpert, or lay, testimony because he was at the scene of the accident but could not offer conclusions on whether Lewis had been driving the car on the date in question.
During Christy’s direct examination by the State, defense counsel objected to Christy’s testimony. The court overruled the objection, and Christy described his experience and training as a paramedic who regularly responds to automobile collisions. He told tire jury that in a frontal collision, people in a car are either thrown “up” or “down.” Christy said that after observing the damage to the windshield on the passenger side of the Firebird, the passenger had likely gone “up” and suffered an abrasion-type injury to the head. He then testified that Evans, and not Lewis, had an abrasion on his forehead. Christy also testified that the steering wheel and driver s-side floorboard had been damaged and that a white shoe had been left wedged in the “accelerator area,” indicating that the driver of tire car had been thrown “down” under the steering wheel. Christy said that he would expect the driver of the car to have had fractured ribs or torso injuries as well as abrasions on his knees from hitting the dash components.
Another of Lewis’ claims on appeal is that the prosecutor made improper statements at trial that are significant enough to order a new trial. The first such statement came during jury selection, as the prosecutor discussed tire concept of reasonable doubt. To convict, of course, the jury must find tire defendant guilty beyond a reasonable doubt. The prosecutor made statements apparently trying to distinguish between eliminating reasonable doubt and eliminating all doubt:
“[I]s anyone here going to hold me to a standard of proof that is more than beyond a reasonable doubt?
“I often hear people say they weren’t a hundred percent sure. Does everyone understand you don’t necessarily have to be a hundred percent sure? You can have a little doubt. But if it’s not reasonable, that’s not beyond a reasonable doubt.”
After those remarks, the district judge advised the prosecutor— in a bench conference outside the jury’s hearing — to be careful in his remarks: “[Y]ou are getting pretty close. I know what you’re trying to do is tell them it’s not beyond any doubt, but let’s be careful.”
Lewis also notes a statement the prosecutor made in closing argument. The prosecutor said that “[njumerous people” said an officer identified himself and told Lewis to “[g]et on the ground.”
Lewis contends that statement went beyond the evidence because only Hamilton provided supporting testimony for it.
Lewis’ objection to jury instructions relates to a general instruction the court gave before the jury began its deliberations. In it, the court used a pattern jury instruction that told the jury that if it didn’t reach a verdict, a retrial “would be a burden on both sides”:
“Your only concern in this case is determining if the defendant is guilty or not guilty.
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charges to a different jury at a later time. Another trial would be a burden on both sides.
“. . . If every juror is fair and reasonable, a jury can almost always agree.
“It is your duty as jurors to consult with one another and to deliberate with a view to reaching an agreement if you can do so without violence to your individual judgment.”
In August 2007, when this case was tried, such an instruction was common and used in approved pattern instructions. Indeed, the Kansas Supreme Court in December 2007 found no error in its use in another case, State v. Nguyen, 285 Kan. 418, 435-37, 172 P.3d 1165 (2007). But this instruction — including its statement that another trial would be a burden on both sides — has since been disapproved, see State v. Salts, 288 Kan. 263, 265-67, 200 P.3d 464 (2009), and Lewis contends that its use here influenced the jury to wrongly convict him.
The district court sentenced Lewis based on his criminal-history score of A and Kansas sentencing guidelines. Lewis’ final claim of error on appeal is that the district court should not have considered his criminal-histoiy score of A, which was based on his past convictions, since the existence of those convictions wasn’t separately proved to the jury. Based on that criminal-history score and the sentencing guidelines, tire district court sentenced Lewis to a total of 141 months in prison. He received 130 months for the aggravated-battery conviction and a consecutive 11-month sentence for possession of cocaine. Lewis also received three other sentences made concurrent so that they do not increase the overall time he will serve: 6 months for eluding a police officer, 6 months for obstructing legal process, and 90 days (plus a $50 fine) for reckless driving.
Analysis
I. The District Court Did Not Err by Allowing Testimony from a Paramedic.
Lewis argues that the district court should not have allowed testimony from Christy, the paramedic, raising two objections. First, Lewis argues that a provision of the Kansas Rules of Civil Procedure requiring disclosure of expert testimony, K.S.A. 2013 Supp. 60-226(b)(6)(A), should be applied in criminal cases and that the prosecution didn’t provide sufficient notice of Christy’s testimony under that statute. Second, Lewis argues that the State didn’t present a sufficient evidentiary foundation to allow Christy to testily about how people are injured in automobile accidents based on their location in the driver’s seat or in the front passenger’s seat.
The Discovery Rules of the Kansas Rides of Civil Procedure Do Not Apply in Criminal Cases.
The answer to Lewis’ first argument is a simple one: The discovery provisions of the Kansas Rules of Civil Procedure don’t apply in criminal cases. The point appears to have been so little questioned that no published appellate opinion discusses it. We will publish this opinion to correct that, but we do not find the question a close one.
Kansas has three sets of statutes that sometimes come into play in criminal cases. First, we have the Kansas Code of Criminal Procedure, K.S.A. 22-2101 et seq., which contains provisions for pretrial, trial, and posttrial proceedings in criminal cases. Second, we have the Kansas Rules of Evidence, K.S.A. 60-401 et seq., which apply “in every proceeding, both criminal and civil.” K.S.A. 60-402. Third, we have the Kansas Rules of Civil Procedure, K.S.A. 60-201 et seq., which generally apply to civil cases but may sometimes apply in criminal cases too.
Indeed, there are situations in which the Kansas Code of Criminal Procedure explicitly makes some part of the Kansas Rules of Civil Procedure applicable in criminal cases. For example, K.S.A. 2013 Supp. 22-3415(a) provides that the civil-procedural rules for forcing witnesses to attend, for handling their examination and oath, and for holding a -witness in contempt will also be applied in criminal cases. K.S.A. 22-3214(1) specifically provides that subpoenas in criminal cases be issued in the same manner as in civil cases, see K.S.A. 2013 Supp. 60-245, except that witness fees and mileage need not be paid to a witness in a criminal case. K.S.A. 22-3214(3).
But the Kansas Code of Criminal Procedure has its own provisions regarding pretrial discovery, K.S.A. 2013 Supp. 22-3212 and K.S.A. 22-3213. Neither purports to make any of the discovery rules of the Kansas Rules of Civil Procedure applicable to criminal cases.
This is perfectly understandable. The Kansas Rules of Civil Procedure are based on the Federal Rules of Civil Procedure, which don’t apply in criminal cases. See Fed. R. Civ. P. 1 (stating that the federal civil-procedure rules apply “in all civil actions and proceedings”); Fed. R. Crim. P. 1(a)(1) (stating that die federal criminal-procedure rules “govern the procedure in all criminal proceedings” in federal courts); United States v. McCalister, 601 F.3d 1086, 1087 (10th Cir. 2010). Like the federal rules, the civil and criminal rules in Kansas have provisions limiting their scope to civil or criminal cases. K.S.A. 2013 Supp. 60-201(b) tells us that the Kansas Rules of Civil Procedure apply to “all civil actions and proceedings” except those commenced under special rules for limited civil actions. K.S.A. 22-2102 tells us that the Kansas Code of Criminal Procedure “shall govern proceedings in all criminal cases.” So the baseline norm here is that you look to the Kansas Rules of Civil Procedure in civil cases and to the Kansas Code of Criminal Procedure in criminal ones.
With this background, let’s look at K.S.A. 2013 Supp. 22-3212 and K.S.A. 22-3213, which provide for discovery in criminal cases, and K.S.A. 2013 Supp. 60-226, the civil-discovery statute Lewis seeks to apply in his case. For the convenience of the reader, we cite to the current version of each statute, but they are not materially different from the ones in effect at the time of Lewis’ 2007 trial.
K.S.A. 2013 Supp. 22-3212(a) provides that a prosecutor must produce certain items if requested by the defendant. Some of the items relate to the potential work of an expert witness: “results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case” if the prosecutor knows of them or could know of them through “due diligence.” K.S.A. 2013 Supp. 22-3212(a)(2). With some exceptions, prosecutors also must provide other items that are “material to the case” if requested by the defendant and if producing them doesn’t unreasonably burden the prosecutor. K.S.A. 2013 Supp. 22-3212(b). If die defense makes a request for discovery, it is also required to produce certain materials. K.S.A. 2013 Supp. 22-3212(c). And the criminal-discovery statute has its own deadline: the discovery must be completed “no later than 21 days after arraignment or at such reasonable later time as the court may permit.” K.S.A. 2013 Supp. 22-3212(h).
K.S.A. 22-3213 provides some limitations on when statements made by State witnesses must be provided. Generally, the statement does not have to be provided until the witness has already testified for the State on direct examination. K.S.A. 22-3213(1), (2).
K.S.A. 2013 Supp. 60-226(b)(6) provides for the disclosure of expert testimony in civil cases. It states what information must be provided, K.S.A. 2013 Supp. 60-226(b)(6)(A)(i)-(ii), and when it must be disclosed — “[a]t least 90 days before the date set for trial.” K.S.A. 2013 Supp. 60-226(b)(6)(C)(i).
Lewis contends that K.S.A. 2013 Supp. 22-3212 has no provision for expert-testimony disclosure, so the legislature must have intended that K.S.A. 2013 Supp. 60-226(b)(6) apply in criminal cases. We disagree.
First, as we have noted, K.S.A. 2013 Supp. 22-3212 has obvious application to experts through subsection (a)(2) for disclosure of “results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case.”
Second, the overall structure of these discovery provisions — one in a set of statutes exclusively dealing with civil cases, the other in a set of statutes dealing exclusively with criminal cases — provides no suggestion whatsoever that the civil-discoveiy statute might apply in criminal cases or vice versa. This structure is not accidental, since K.S.A. 2013 Supp. 22-3212 was directly patterned after Federal Rule of Criminal Procedure 16. See 13 Vernon’s Kansas Stat. Annot., C. Crim. Proc. § 22-3212, Advisory Committee Comment, p. 83 (1973). In federal criminal cases, pretrial discovery regarding the government’s case is governed by Rule 16 of the Federal Rules of Criminal Procedure, not by what’s found in discovery provisions of the Federal Rules of Civil Procedure. See United States v. Day, 524 F.3d 1361, 1370 (D.C. Cir. 2008); United States v. Fort, 478 F.3d 1099, 1102 (9th Cir. 2007) (Wardlaw, J., dissenting).
Third, the timing provisions are inconsistent with the universal application of tire civil rule for expert disclosures. It requires that the disclosures be made at least 90 days before trial, which is unrealistic for a criminal case. But a defendant in custody can force the State to bring him or her to trial within 90 days of arraignment. K.S.A. 22-3402(a). The State could easily be hamstrung by a requirement that “the substance of the facts and opinions to which the expert is expected to testify,” K.S.A. 2013 Supp. 60-226(b)(6)(A)(ii) and (C), must be disclosed at least 90 days before trial.
Fourth, our ruling is supported by State v. Jeffries, 117 Kan. 742, Syl., 232 P. 873 (1925), where the Kansas Supreme Court found that a civil-discovery provision in that era’s Civil Code did not apply in criminal cases.
We certainly will not presume that the legislature intended to malee this civil-discovery provision applicable in criminal cases where it seems unworkable, where there are separate criminal-discovery provisions in place, and where the criminal-discovery statute has a different deadline for disclosures, i.e., 21 days after arraignment or another reasonable time as ordered by the court. We therefore agree with two unpublished opinions of our court that concluded that the provisions of K.S.A. 2013 Supp. 60-226 for expert-witness disclosure do not apply in criminal cases. State v. Fleming, No. 106,104, 2012 WL 4794560, at *3-5 (Kan. App. 2012) (unpublished opinion); State v. Brooks, No. 103,774, 2011 WL 2793303, at *8-9 (Kan. App. 2011), rev’d on other grounds 297 Kan. 945, 305 P.3d 634 (2013).
Our conclusion that civil-discovery rules don’t create discovery obligations in criminal cases doesn’t necessarily mean that civil-discovery rules are never potentially relevant in criminal cases. Concepts found in the civil-discovery rules may well be helpful in guiding a trial court’s discretion when enforcing the separate discovery obligations applicable to criminal cases. See Murphy, E-Discovery in Criminal Matters — Emerging Trends i? the Influence of Civil Litigation Principles, 11 Sedona Conf. J. 257 (2010). For example, a federal district court in United States v. O’Keefe, 537 F. Supp. 2d 14 (D.D.C. 2008), held that the implementation of document production by the government in a criminal case must adhere to standards similar to those set out in civil-discovery rules. But the O’Keefe court did not use the civil-discovery rules as the source of the disclosure requirement. It simply held that tire civil rules may be of help in determining whether documents produced by the government have been provided “in a form or format that is appropriate.” 537 F. Supp. 2d at 19.
We should also note that in some cases, the government is constitutionally required to provide certain evidence to the defense. See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). Otherwise, however, “the extent of discovery to be allowed remains a policy judgment for rulemakers and legislators.” 2 Wright & Henning, Federal Practice and Procedure: Criminal § 251, p. 62 (4th ed. 2009). The Kansas Legislature has not required that the State disclose expert testimony in criminal cases 90 days before trial. The district court properly overruled Lewis’ objection based on K.S.A. 60-226.
The District Court Did Not Err in Overruling the Defendant’s Foundation Objection to the Paramedic’s Testimony.
The defendant’s attorney objected at trial that the State hadn’t presented an adequate foundation to allow Christy to testify about the types of injuries he saw from Lewis and Evans and how those injuries might have been sustained. The objections came after the prosecutor asked whether anyone had glass cuts consistent with hitting the windshield and what type of injuries would be expected for a driver forced down by the collision. Lewis argues on appeal that the district court should have sustained these objections.
Lewis is right that the State was seeking expert-opinion testimony from Christy: the specific types of injuries frequently seen in auto accidents is not a matter of common knowledge. See State v. Shadden, 290 Kan. 803, 819-21, 235 P.3d 436 (2010) (noting that when opinion testimony goes beyond the common knowledge of a layperson, expert-witness rules apply). But the State provided a sufficient foundation to admit Christy’s testimony by showing that his testimony was based on his own personal observations of auto accidents and was within his special areas of training and experience. See K.S.A. 60-456(b); State v. Lawrence, 281 Kan. 1081, 1088, 135 P.3d 1211 (2006).
The State established that Christy had responded to the scene of the accident, had inspected the car, and had seen both victims at the scene. In addition, Christy had been a licensed paramedic for 22 years, had medical training, and had responded on average to three to four motor-vehicle collisions per shift. He testified that he had been trained on mechanisms of injury and taught to look for vehicle damage as a clue to what parts of the body might be injured, even if the injuries weren’t visible. Through this testimony, the State provided sufficient foundation for Christy’s statements about how injuries may occur in an auto accident and how the injuries he observed may have occurred. See Shadden, 290 Kan. at 819 (noting that an expert may state his or her opinions developed from inductive reasoning based on the expert’s experience, observation, or research).
II. The Prosecutor s Comments Did Not Violate Lewis’ Right to a Fair Trial.
Lewis argues that two comments made by the prosecutor violated his right to a fair trial. The first was the prosecutor’s attempt during jury selection to explain the concept of “reasonable doubt” by saying that someone need not be “a hundred percent sure” and can convict even with “a little doubt” as long as it’s not “reasonable” doubt. The second was the prosecutor’s, statement in closing argument that “[njumerous people . . . , including the police offi cers,” said that Trooper Hamilton yelled for Lewis to get on the ground but that Lewis didn’t do it.
We apply the same standards when reviewing the appropriateness of a prosecutor’s comments during jury selection as we do to comments made in a prosecutor’s opening statement or closing argument. See State v. Simmons, 292 Kan. 406, 409, 254 P.3d 97 (2011). We must first determine whether the prosecutor’s comments were outside the wide latitude allowed in juiy selection and argument. State v. Stevenson, 297 Kan. 49,51, 298 P.3d 303 (2013). If we find that the prosecutor’s comments were improper, we then must determine whether they constituted “plain error,” which is defined as whether the statements prejudiced the jury against the defendant and thus denied the defendant a fair trial. 297 Kan. at 51.
A prosecutor may not suggest to the jury that it may convict a defendant on anything less than proof beyond a reasonable doubt. State v. Brinklow, 288 Kan. 39, 48-50, 200 P.3d 1225 (2009). But prosecutors may draw a distinction between the concept of proof beyond a reasonable doubt and proof beyond all doubt. See Stevenson, 297 Kan. at 53 (finding no error where prosecutor used a “Wheel of Fortune” analogy to distinguish between reasonable doubt and all doubt). In Lewis’ case, the prosecutor’s statements did not suggest that the jury could convict Lewis on anything less than proof beyond a reasonable doubt. We find nothing improper in his statements.
The prosecutor’s second statement — about “[njumerous people” testifying that Hamilton ordered Lewis to get on the ground— is somewhat misleading, though not as much as Lewis argues. He contends on appeal that only Hamilton provided testimony that he yelled for Lewis to get on the ground. But Trooper Brooks also testified that Hamilton had told Lewis to get on the ground. So there were two witnesses, not one, as Lewis argues — but also not “numerous” witnesses, as the prosecutor suggested in closing argument.
While “numerous” is imprecise as to how many are involved, when properly used it refers to “a large number” or “many,” not two. See American Heritage Dictionary 1210 (5th ed. 2011). So the prosecutor’s use of that word did go beyond the evidence, though immediately following it with reference to the officers may have served to refocus the jury on the evidence actually presented on this point. But even if we found the comment outside the wide latitude given in closing argument, we would not find plain error: the improper comment was not gross and flagrant, showed no ill will, and was unlikely to have any significant weight in the jury’s consideration of the case. See State v. Ochs, 297 Kan. 1094, Syl. ¶ 2, 306 P.3d 294 (2013). We find no reversible error in the challenged statements of the prosecutor in Lewis’ case.
III. The District Court’s Jury Instructions Were Not Clearly in Error
Lewis next argues that the district court erred by telling the jury that a second trial would be a burden to both sides. This argument has been frequently raised in Kansas criminal appeals because the instruction the district court used was part of the set of pattern jury instructions recommended for use by Kansas courts. Even after Lewis’ trial, the Kansas Supreme Court in Nyugen found no error in the use of this instruction. 285 Kan. at 436-37. But that court changed course in 2009 in Salts, 288 Kan. at 266-67. Because Lewis’ case is on direct appeal, we must apply Salts even though it came after Lewis’ trial. See Stechschulte v. Jennings, 297 Kan. 2, 18, 298 P.3d 1083 (2013); State v. Waterberry, 248 Kan. 169, Syl. ¶ 1, 804 P.2d 1000 (1991).
But Salts does not require that we reverse Lewis’ convictions. In Salts, as here, the defendant did not object to the instruction in the district court, so we reverse only if the instruction was “clearly erroneous.” K.S.A. 2013 Supp. 22-3414(3). We reverse for clear error only if we are firmly convinced that there is a real possibility that the jury would have rendered a different verdict if the trial error had not occurred. State v. Colston, 290 Kan. 952, 976, 235 P.3d 1234 (2010). In Salts and several other cases, the Kansas Supreme Court has found no clear error in the use of the instruction at issue here. E.g., State v. Rochelle, 297-Kan. 32, 44-45, 298 P.3d 293, cert. denied 134 S. Ct. 270 (2013); State v. Warrior, 294 Kan. 484, 514-15, 277 P.3d 1111 (2012); State v. Burnett, 293 Kan. 840, 854-55, 270 P.3d 1115 (2012).
Lewis attempts to distinguish his cáse from Salts in part by arguing that the district court also told the jury that “if you should fail to reach a decision, the case is left open and undecided. Like all cases it must be decided.” Lewis suggests that this instruction is in error because cases don’t have to be decided — the State can choose to dismiss a case or it can choose not to retry one. See State v. Scott-Herring, 284 Kan. 172, 181, 159 P.3d 1028 (2007). The problem with Lewis’ argument is that the language he cites was not included in the district court’s instruction in his case. So, as in Salts and the other cases noted above, we find no clear error in the use of the instruction that “[ajnother trial would be a burden on both sides.”
IV. The District Court Did Not Err in Determining Lewis’ Criminal-History Score for Sentencing Purposes.
Lewis’ final argument is that the use of his criminal history, which was used to calculate his guidelines sentence, was unconstitutional since the past convictions weren’t proved in this case to a jury. Our Supreme Court has rejected that argument. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); State v. Ivory, 273 Kan. 44, 46-47, 41 P.3d 781 (2002).
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Arnold-Burger, J.:
When the court is faced with two conflicting presumptions of paternity in a paternity case, it is required to conduct a hearing to determine which presumption “is founded on the weightier considerations of policy and logic, including the best interests of the child,” before it determines the child’s legal parentage. K.S.A. 2013 Supp. 23-2208(c). In October 2012, Dana Greer (Dana) gave birth to a baby, Emily. Dana was married to Jack Greer (Jack) at the time of the baby’s conception and birth; however, voluntary genetic testing after the baby’s birth revealed that John Farbo (John), a man Dana dated while she and Jack were separated, is Emily’s biological father. Based on the genetic test, John filed a petition in district court to establish himself as Emily’s legal father. Because the district court failed to weigh the conflicting presumptions of paternity — -legitimacy versus genetics — we find that the court committed an error of law, and, accordingly, we remand tire case for such a hearing.
Factual and Procedural History
Jack and Dana married in 2009. After a time, the couple began to experience marital discord, and in August 2011 they separated. Dana moved in with her father, and Jack obtained a divorce attorney and filed for divorce in Missouri.
Shortly after tire separation, Dana contacted her long-time acquaintance John and the two entered into a dating relationship. Although John discovered early in the relationship that Dana was married, Dana assured John that she and Jack planned on divorcing. As the relationship progressed, John and Dana discussed a variety of long-term plans, including living together as a family unit with Dana’s daughter from a previous relationship. John moved from Illinois to Kansas during this time. But in February 2012, Jack and Dana reconciled, and Dana ended her relationship with John.
A few weeks later, in March 2012, Dana contacted John and informed him that she was pregnant. John assumed the child was his and informed Dana that he wished to be part of the child’s life and help support the child financially.
The child, Emily, was born in October 2012. John discovered the fact of Emily’s birth a few weeks later, as his contact with Dana during her pregnancy was inconsistent and Dana had not informed him of Emily’s birth. In January 2013, John, Dana, and Emily underwent genetic testing that determined there was a 99.99% probability that Emily was in fact John’s biological child. Based on the genetic testing, John filed a paternity suit in Franklin County to establish Emily’s legal paternity. In his petition, he asked the court, pursuant to In re Marriage of Ross, 245 Kan. 591, 783 P.2d 331 (1989), “for a hearing to determine it is in the best interests of the minor child to determine paternity [and] to malee a finding that petitioner is the natural father.” In his proposed findings of fact, he enumerated the nonexclusive factors under Ross that the court should consider in deciding the case. He proposed findings of fact which corresponded to the Ross factors. He proposed that the court conclude:
“Pursuant to the Ross case, the Court has determined it is in the best interests of the minor child for the evidence of tire genetic testing in this case to be received into court, which establishes with a 99% certainty that the Petitioner is the biological father of the minor child, Emily Greer.”
The district court scheduled a Ross hearing to determine Emily’s best interests prior to establishing paternity.
The Ross hearing occurred on June 3, 2013. John, Dana, and Jack each testified. Although other relevant facts will be added as needed, a brief overview of the hearing is as follows:
John testified that, in the time between Emily’s birth and the hearing, he had seen Emily approximately 22 times. These visits occurred during time periods in which Jack was temporarily living away from the Greer residence. John explained that during visits he had helped Dana and Dana’s older daughter care for Emily and had attempted to establish a parental bond with the baby. John also testified that he had purchased a number of items for Emily and set up a room for Emily in his home. He gave Dana a few items, such as a stroller and car seat, to help her care for the baby. John further stated that he bought formula and diapers for Emily and paid for at least one doctor s visit, although he admitted he never sent Dana money.
Dana did not counter John’s version of events in her testimony. However, Dana noted that she felt pressured by her family and John to involve John in Emily’s life. Dana acknowledged that she blocked John’s phone number because he continued to contact her even after she asked him to stop. Regarding her marriage to Jack, Dana testified that although she and Jack were estranged twice after Emily’s birth, they had started seeing a marriage counselor to work on their relationship. Dana emphasized that Jack copar-ented Emily with her and that, since Emily’s birth, Emily and Jack had formed a strong father-child bond. Dana also stated that although she believed Jack’s relationship with Emily would not suffer if Emily knew her biological parentage, she worried that forcing a relationship between John and Emily might confuse Emily unnecessarily.
Jack briefly testified, explaining that most people in the community and his personal life understand Emily to be his child. Jack explained that he wanted Emily to grow up in his home as his child and that he wanted John to stop “interfering” with his family. However, he also acknowledged that his feelings about Emily would not change were John part of her life.
After John’s attorney closed his argument, the district judge asked the following question:
“The briefs which I received, which were good, were on the issue of the Ross hearing, which we re having today, which is whether it’s in the best interest of the child for the court to admit the evidence of the genetic testing. I would determine that it is in the best interest of the child to admit the genetic testing, don’t we need to have another hearing or at least — maybe not any additional evidence, but another determination by the court as to which presumption, the presumption of that the child was born during the course of the marriage of the Greers or the presumption that the child, you know, that is 97 percent plus genetically the child of Mr. Farbo. Don’t I need to resolve those presumptions at some point in time? There hasn’t been any really authority or evidence presented on that.”
The attorneys appeared to agree that the district court first needed to determine whether consideration of the genetic testing was in Emily s best interests and then, if such consideration was in her best interests, decide which man should be adjudged her legal father.
When the district court reconvened on June 6, 2013, to issue its decision, it began by considering the factors traditionally applied to a Ross hearing. After determining that the factors balanced equally between Jack and John, the district judge explained:
“[B]ased on the evidence diat’s been presented in tins case and the snapshot I have of the situation and my judgment, and judging the demeanor and the evidence and so forth and the testimony of everybody involved, I would think that tire overall best interest is that — the guardian ad litem I think had a good point that although if I would grant the petition for paternity and moving forward the child would have, Emily would have two fadrers, that drat might start out as a normal situation or tirat drat would be her paradigm of being normal, drat she doesn’t really need to have two fadrers, and I think I agree witir tirat rationale. A lot of these cases come up, as counsel knows, that we don’t — we either have just one strong candidate or no candidates; we’re trying to find somebody to be a father. In this case, we’ve got two strong candidates.”
However, the district court ultimately found that, based on both the evidence and Kansas caselaw, considering the genetic test results was not in Emily’s best interests. Based upon that finding, the district court went on to find that all the court was “left with is the presumption of paternity that this child was bom of the marriage of Dana Greer and Jack Greer. So that will be the finding and order of the court.” The district court then dismissed the paternity action.
Analysis
On appeal, John raises three claims: first, the district court erred in determining that admitting the genetic test result was contrary to Emily’s best interests; second, the district court erred in conducting a Ross hearing; and third, the district court unconstitutionally infringed on John’s fundamental right of parenthood by dismissing the paternity petition. John’s second argument — tirat is, whether conducting a Ross hearing was proper — raises a possible error of law. But John failed to raise this issue at the district court level and he did not explain his reasons for that failure in his appellate brief. However, as this issue is one of first impression in Kansas and consideration of this theory is necessary to both serve the ends of justice and to prevent the denial of fundamental rights, this court will consider it for the first time on appeal. See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 1778 (2009). In addition, it is virtually inseparable from John s first issue, which is whether the genetic test results should have been admitted.
The Ross Hearing and Admission of the Genetic Test Results
John contends that the district court erred in conducting a Ross hearing. John bases this contention on the premise that because the genetic test establishing him as Emily’s biological father existed prior to the paternity action, it also established a presumption in his favor. John acknowledges that under the Kansas Parentage Act (KPA), K.S.A. 2013 Supp. 23-2201 et seq., a presumption exists in Jack’s favor as well however, John argues that the proper procedural mechanism was not to conduct a Ross hearing and exclude the genetic test results but rather to weigh the conflicting presumptions as provided in K.S.A. 2013 Supp. 23-2208(c).
Standard of review
This court exercises an unlimited review over questions of law and a district court’s conclusions of law. See City of Wichita v. Denton, 296 Kan. 244, 255, 294 P.3d 207 (2013).
We examine the law regarding presumptions of paternity
A paternity proceeding determines who a child’s legal father is and, therefore, who will enjoy the rights and responsibilities of legal parenthood. Presumptions of paternity may simultaneously arise in favor of different men. In family law, “[tjhere is a strong presumption that a woman’s husband is the father of any child bom during the marriage.” 6 Rutldn, Family Law and Practice § 63.02[5] (2013). This presumption exists both at common law and statutorily. 1 Elrod and Buchele, Kansas Family Law § 7.12 (1999), In Kansas, the statute specifically reads: “A man is presumed to be the father of a child if . . . [t]he man and the child’s mother are, or have been, married to each other'and the child is bom during the marriage.” K.S.A. 2013 Supp. 23-2208(a)(1). However, this presumption — also sometimes referred to as the presumption of legitimacy — can, like any other presumption, be rebutted. See K.S.A. 2013 Supp. 23-2208(b).
But the presumption of legitimacy is not the only statutory presumption in Kansas. See K.S.A. 2013 Supp. 23-2208(a). In fact, five other presumptions exist in Kansas, including those that arise when “[tjhe man notoriously or in writing recognizes paternity of the child” and when “[gjenetic test results indicate a probability of 97% or greater that the man is tire father of the child.” K.S.A. 2013 Supp. 23-2208(a)(4), (a)(5). Additionally, many of the criteria that tend to establish these presumptions overlap, meaning that “[mjore than one man may be presumed to be tire father.” 1 Elrod and Buchele, Kansas Family Law § 7.15 (1999). Therefore, in the case of conflicting presumptions, “tire presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child, shall control.” K.S.A. 2013 Supp. 23-2208(c). A presumption “may be rebutted only by clear and convincing evidence, by a court decree establishing paternity of the child by another man,” or as provided by the section of the statute regarding conflicting presumptions. K.S.A. 2013 Supp. 23-2208(b).
We examine the Ross case
Because the district court relied on the Ross case to find that admission of tire genetic test establishing John as the biological father of Emily was not in Emily’s best interests and, therefore, tire only remaining presumption was the legitimacy presumption, it is important to review the Ross case.
During the marriage of Sylvia and Robert Ross, a child was born. When the couple subsequently divorced, Sylvia was given custody of the child, and Robert was given visitation rights and ordered to pay child support. He was later given joint custody. Sylvia subsequently remarried and was interested in her new husband adopting tire child. Two years after her divorce from Robert, Sylvia filed a paternity action under the KPA claiming that Charles, a man she had a sexual relationship with around tire time of the child’s con ception, was the father. Charles had no interest in parenting the child, and he and Sylvia had already discussed whether he would be amenable to relinquishing his parental rights and allowing Sylvia’s new husband to adopt tire child if it was determined that he was the father. After filing her action, Sylvia asked that genetic testing be ordered by the court. A guardian ad litem was appointed, and the guardian filed a separate paternity action on behalf of the child. The district court dismissed Sylvia’s action, apparently on the basis of res judicata and equitable estoppel related to the prior divorce decree, but the court allowed the action to proceed through the guardian ad litem. The court then sustained the guardian ad litem’s request for a blood test without a hearing.
The court subsequently conducted a hearing to determine paternity but only allowed evidence regarding the child’s biological parentage. The court did not accept any evidence regarding the best interests of the child. Charles was determined, by clear and convincing evidence, to be tire biological father of the child. Charles was ordered to pay child support, but the court maintained joint custody of the child between Sylvia and Robert, finding that Robert stood in loco parentis.
The Kansas Supreme Court found that the district court abused its discretion by admitting the blood test results without first having a hearing as to whether such testing was in the child’s best interests. The court specifically rejected the notion that if blood testing proves the presumed father to be the biological father, the issue of parentage is closed and the necessity for extended evidence as to the child’s best interests is precluded. 245 Kan. at 601. The Supreme Court reversed the district court’s order for blood tests and restored the parties to their positions before the tests were ordered. It ordered the district court to conduct a hearing purely based upon the best interests of the child and not to consider the blood tests “until such consideration is determined to be in [the child’s] best interest.” 245 Kan. at 602.
A review of the statute in effect at the time of Ross is critical to understanding the court’s analysis. The statute listed several presumptions of a paternity. Applicable to the Ross case was the presumption of legitimacy contained at K.S.A. 38-1114(a)(1) (Ensley 1986) and the fact that Robert had notoriously or in writing recognized his paternity under K.S.A. 38-1114(a)(4) (Ensley 1986). The Ross court noted that not only were tire parties married, but Robert
“acknowledged his paternity of the child in writing; with his consent, he was named as the father on tire child’s birth certificate; he willingly became obligated to support the child in the divorce decree; and he notoriously and in writing recognized his paternity of the child to the district court.” 245 Kan. at 595.
The statute went on to state that these presumptions were rebuttable by clear and convincing evidence. K.S.A. 38-1114(b) (Ensley 1986). There were no conflicting presumptions in Ross. There were only two presumptions, both favoring Robert.
Although genetic testing was allowed and could be offered into evidence at the time, it had not yet been elevated to the level of a presumption. K.S.A. 38-1119(a)(4) (Ensley 1986). The statutes did require a court, either on its own motion or on the motion of any party, to order blood tests “|w]henever the paternity of a child is in issue.” K.S.A. 38-1118 (Ensley 1986). But because the shifting of paternity from the presumed father to the biological father could easily be detrimental to the emotional and physical well-being of any child, the Kansas Supreme Court found that prior to ordering a paternity test the court must conduct a hearing to determine the best interests of the child, including the child’s physical, mental, and emotional needs. Ross, 245 Kan. 591, Syl. ¶ 5.
We note that “tire best interests of the child” standard did not appear anywhere in tire KPA at the time of the Ross decision. Instead, the court found that “[t]he Uniform Parentage Act clearly was designed to provide for the equal, beneficial treatment of children. In this regard, it requires courts to act in the best interests of the child when imposing legal obligations or conferring legal rights on the mother/child relationship and the father/child relationship.” 245 Kan. at 597.
We examine the statutory scheme since Ross
The applicable provisions of the KPA have changed dramatically since Ross and, perhaps in part, in response to it. In 1994, the legislature elevated genetic test results to a presumption of pater nity. It also included the “best interests of the child” as a consideration when weighing competing presumptions. L. 1994, ch. 292, sec. 5. The 1994 legislature also specifically provided that “[pjarties to an action may agree to conduct genetic tests prior to or during the pendency of any action for support of a child.” L. 1994, ch. 292, sec. 8. The legislative changes further required that the written report of genetic test results be admitted into evidence without the need for further foundation if there is not an objection lodged in the manner provided in the statute. L. 1994, ch. 292, sec. 8.
This court first recognized these legislative changes in In re Estate of Foley, 22 Kan. App. 2d 959, 962, 925 P.2d 449, rev. denied 261 Kan. 1085 (1996), and held, consistent with Ross, that in order for a presumption of paternity to exist, the facts necessary to prove that presumption must exist before the paternity action is filed. See also Roy v. Edmonds, 45 Kan. App. 2d 1156, 1161-62, 261 P.3d 551, rev. denied 293 Kan. 1107 (2011). Similarly, in a case involving the guardianship and adoption of a minor, this court noted that the statutory presumption of paternity in what is now K.S.A. 2013 Supp. 23-2208(a)(5) arose “as soon as Father filed the genetic testing results with the district court.” In re Adoption of I.H.H.-L., 45 Kan. App. 2d 684, 697, 251 P.3d 651, rev. denied 292 Kan. 964 (2011).
Based upon the current statutes and caselaw, if there is not a genetic test in place at the time the action is filed and a party requests that one be performed, the order for genetic testing must be based on a determination, after a hearing, that such a test is in the best interests of the child. But if tire testing is completed before the case is filed, the presumption is elevated to a legal, albeit re-buttable, presumption. These statutory changes remain in the law to this day and are codified at K.S.A. 2013 Supp. 23-2208(a)(5) (genetic test results can create a presumption of paternity), K.S.A. 2013 Supp. 23-2208(c) (best interests of child considered when weighing two or more presumptions), and K.S.A. 2013 Supp. 23-2212 (genetic tests may be conducted prior to filing case, and report of results must be admitted unless timely objection lodged). It is because of these changes that the decision, in Ross does not control the procedure required of the district court in this case — - or, more importantly, the outcome of this case.
Since Ross was decided, most cases invoking a Ross hearing also involve facts very similar to Ross: a party attempts to challenge a long-standing presumption prior to any genetic testing of the parties by filing a paternity action. See, e.g., In re D.B.S., 20 Kan. App. 2d 438, 440-42, 888 P.2d 875, aff'd 258 Kan. 396, 903 P.2d 1345 (1995). Only one Kansas case involves genetic testing that predated the filing of the paternity action; there, the district court refused to admit the testing based on its lack of scientific validity, not based on the Ross factors. See Guth v. Wagner, No. 103,398, 2010 WL 2978091, at *8-9 (Kan. App.) (unpublished opinion) (upholding district court’s decision to exclude a DNA test purchased over the counter at Walgreens because it “would not pass the test for admissibility of expert scientific evidence”), rev. denied 291 Kan. 912 (2010). In Guth, this court recognized tire post-Ross statutory provision that allows parties to agree to conduct genetic testing before the pendency of an action and admit a verified written report of the results. 2010 WL 2978091, at *9. This court also recognized the detailed guidelines contained in tire statute for objecting to those results. Although the record did not contain any evidence that an objection to the test results had been filed pursuant to tire statutory procedure, it held:
“There is no written objection to admission of the report in the record on appeal. However, there is also no evidence that Guth ever attempted to admit a verified written report of the genetic test results, or that Conrad ever received a verified written report 10 days before the hearing, and no evidence that all parties agreed to conduct genetic tests before Guth filed this action. See K.S.A. 38-1118(b)-(c). Consequently, the genetic test resultfs] completed before this paternity action was filed was inadmissible. Accordingly, the district court did not err in excluding the genetic test results.” 2010 WL 2978091, at *9.
In summary, our Supreme Court’s mandate in Ross continues to be good law. See Reese v. Muret, 283 Kan. 1, 6, 150 P.3d 309 (2007). But the caselaw and statutory changes since Ross make it clear that a Ross hearing is only required in two very specific situations: when (1) there is not a genetic test resulting in a presumption of paternity performed prior to the filing of the paternity action, or (2) a genetic test was completed prior to the filing of the paternity action but the result is inadmissible due to a proper statutory objection being lodged. In addition, Ross would only apply when one man’s presumption is at risk of rebuttal; when “no credible evidence exists that child has a presumed father,” a Ross hearing in advance of admitting a genetic test results is not required. See 1 Elrod and Buchele, Kansas Family Law § 7.15 (2013 Supp.).
We apply the law to the facts
Under the current statutory scheme, and the one in place at the time of this paternity action, tire district judge was faced with two competing presumptions: legitimacy and genetic. K.S.A. 2013 Supp. 23-2208(a)(1) and (5). Both presumptions were in place prior to the filing of the paternity action. The court was required to admit and consider the genetic test results because no objection was lodged as required by K.S.A. 2013 Supp. 23-2212(c). In addition, and unlike in Guth, the parties agreed to genetic testing, and a copy of the report was filed with the court at the same time as the petition to determine paternity. During the hearing, no one disputed the test results and the fact that John was Emily’s biological father. A Ross hearing to determine whether to consider the test results was not required because, given the posture of the case and the lack of objection, the court was required to consider the test results as one of the presumptions of paternity. The court did not disregard the test results due to any concerns about its validity; its validity was not in question. Instead, the court disregarded the test results totally on a Ross “best interests of tire child” analysis. By not considering the genetic test results, the district court committed an error of law.
Additionally, the district court was required to weigh the competing presumptions and find in favor of the presumption “founded on the weightier considerations of policy and logic, including the best interests of the child.” K.S.A. 2013 Supp. 23-2208(c). The district court failed to weigh competing presumptions because it refused to even consider one of the presumptions. This is also an error of law.
We pause here to note that the district court recognized that a future weighing of presumptions may be necessary. In fact, the judge alluded to the need for a future hearing if the test results were admitted and noted that there had not been any evidence presented regarding the weight of the competing presumptions. But the court was erroneously guided by both parties. In response to the judge’s concerns about the need for a future hearing to weigh the competing presumptions, the parties advised him that he only had to conduct such a hearing if he found it was in Emily’s best interests to admit the test results. Both parties erroneously believed that such a procedure was mandated by Ross.
The obvious concern is whether any error in applying Ross was invited. “A party may not invite error and then complain of that error on appeal.” Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003). But invited error is a judicially created rule and, as such, it “should be tailored as necessary to serve its particular purpose without unnecessarily thwarting tire ends of justice.” State v. Hargrove, 48 Kan. App. 2d 522, 553, 293 P.3d 787 (2013). John should not be deemed to have invited error by joining the other parties to the litigation and the trial judge in misinterpreting the court’s statutory authority. See State v. Horn, 291 Kan. 1, 9-10, 238 P.3d 238 (2010). A court cannot abdicate its duty by relying on the stipulation of the parties that a certain procedure is required, particularly if the stipulation is contrary to statute. See In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 16-17, 687 P.2d 603 (1984). Here, the procedure advanced by the parties was contrary to the clear statutory language.
At the conclusion of the Ross hearing, the district court found that upsetting Jack’s presumption of legitimacy was not in Emily’s best interests and, accordingly, dismissed the paternity action without considering the genetic test results. Although the court spoke to Emily’s best interests, the judge’s failure to recognize both competing presumptions, legitimacy and genetic, and then conduct the weighing of presumptions was the cause of the error we have found here.
Accordingly, we reverse the decision of the district court and remand the case for a hearing for the district court to weigh the two competing presumptions as required by K.S.A. 2013 Supp. 23-2208(c).
We provide guidance in weighing the conflicting presumptions and the best interests of the child
Because this is a matter of first impression in Kansas, there are no cases guiding a court in weighing competing presumptions, although there is some guidance in determining the best interests of the child. We briefly review those factors here to provide future guidance when courts are faced with competing presumptions.
The iveightier considerations of policy and logic
The KPA does not designate any one presumption as conclusive, and K.S.A. 2013 Supp. 23-2208(c) requires that when presumptions conflict, “tire presumption which on the facts is founded on the weightier considerations of policy and logic, including the best interests of the child, shall control.” (Emphasis added.)
A few courts around the country have tried to parse the considerations of policy and logic language. The Wyoming Supreme Court noted that this language is not only limited to legal policy but “clearly implies that a court should consider the broader sociological and psychological ramifications of its decision as to which man should be adjudicated the legal father.” See GDK v. State, Dept. of Family Services, 92 P.3d 834, 839 (Wyo. 2004). The Minnesota Court of Appeals observed that the statutory language embraces “the policy of not unnecessarily impairing blood relationships” and requires that the outcome be “logically based on the facts.” In re Paternity of B.J.H., 573 N.W.2d 99, 103 (Minn. App. 1998). Appropriately, die policy and logic portion of the inquiry appears in part to be heavily based on a state’s individual caselaw and policy. See Ex parte C.A.P., 683 So. 2d 1010, 1011-12 (Ala. 1996) (weighing presumptions by relying heavily on Alabama precedent).
Several courts, including those in Kansas, have specifically referred to the strength of the presumption of legitimacy. See Ross, 245 Kan. at 596 (“the ancient presumption of the legitimacy of a child born in wedlock is one of the strongest presumptions known to the law”). The Ross court emphasized that if a blood test proves the presumed father is the biological father, the issue of parentage is not closed. “Though such reasoning promotes judicial economy, it is contrary to our longstanding public policy that a child born during a marriage should not be bastardized.” 245 Kan. at 601. The district court is still required to consider the best interests of the child. 245 Kan. at 601; see also Ex parte C.A.P., 683 So. 2d at 1012 (presumption of legitimacy is weightier than other statutory presumptions); N.A.H. v. S.L.S., 9 P.3d 354, 360 (Colo. 2000) (strong public policy supports the presumption of legitimacy).
Our Supreme Court has also recognized, in an adoption proceeding, the important rights of biological fathers who promptly assert their rights by taking affirmative steps to show they are fully committed to accepting parenting responsibilities.
“A natural parent’s right to the companionship, care, custody, and management of his or her child is a liberty interest. The liberty interest of a natural parent has its origin in the biological connection between the parent and child, but a biological relationship does not guarantee the permanency of the parental rights of an unwed natural father. Rather, the significance of the biological connection is that it offers the natural father an opportunity that no other male possesses to develop a relationship with his offspring. The opportunity is lost, however, if the natural father does not come forward to demonstrate a full commitment to the responsibilities of parenthood.” In re Adoption of A.A.T., 287 Kan. 590, Syl. ¶ 3, 196 P.3d 1180 (2008), cert. denied 556 U.S. 1184 (2009).
The West Virginia Supreme Court noted that both marriage to tire child’s mother and “factual, biological parentage” are weighty factors. State ex rel. v. Michael George K., 207 W. Va. 290, 299, 531 S.E.2d 669 (2000).
Interestingly, K.S.A. 60-415 is the only other place in Kansas statutes where this language is used, and it states:
“If two presumptions arise which are conflicting with each other the judge shall apply the presumption which is founded on the weightier consideration of policy and logic. If there is no such preponderance both presumptions shall be disregarded.”
In the case of a paternity action, if both presumptions were disregarded, the child would be left without a presumptive father at all, defeating the entire purpose of the KPA. Accordingly, the judge in a paternity action must malee the difficult choice while always including the overarching consideration of the best interests of the child in the equation.
The best interests of the child
Over the years, courts have distilled the best interests of the child consideration present in paternity cases to include approximately 10 factors. 1 Elrod and Buchele, Kansas Family Law § 7.15 (1999). These factors have been summarized as including: (1) whether the child thinks the presumed father is his or her father and has a relationship with him; (2) the nature of the relationship between the presumed father and child and whether the presumed father wants to continue to provide a father-child relationship; (3) the nature of the relationship between the alleged father and the child and whether the alleged father wants to establish a relationship and provide for the child’s needs; (4) the possible emotional impact of establishing biological paternity; (5) whether a negative result regarding paternity in the presumed father would leave the child without a legal father; (6) the nature of the mother’s relationships with the presumed and alleged fathers; (7) the motives of the party raising the paternity action; (8) the harm to the child, or medical need, in identifying the biological father; (9) the relationship between the child and any siblings from either the presumed or alleged father; and (10) whether there have been previous opportunities to raise the issue of paternity. 1 Elrod and Buchele, Kansas Family Law § 7.15 (1999).
“Time may be a major factor” in determining best interests, as well as “the notoriety of the child’s situation in the community,” the stability of the home in which the child will reside, the child’s uncertainty regarding the paternity issue, “and any other factors that will maximize tire child’s opportunities for a successful life.” 1 Elrod and Buchele, Kansas Family Law § 7.15 (1999 & Supp. 2013); see also Paternity of B.J.H., 573 N.W.2d at 102-03 (whether tlie presumed father introduced the child to his extended family; whether the presumed father intended to continue a relationship with the mother (not his wife), whether the child would want to know the identity of the presumed father; whether the child’s young age allowed for development between the child and the presumed father, and the opinion of the guardian ad litem and any experts); Michael George K., 207 W. Va. at 298 (speed with which each presumed father acted in asserting or denying paternity); GDK, 92 P.3d at 838 (effort of the presumed father to establish a relationship with the child and to undertake all parental responsibilities — including financial, physical, and emotional responsibilities — and effect favoring one presumption over another might have on an existing family unit).
However, most courts also recognize that a best interests analysis is incredibly fact-specific and rarely limited to a narrow number of factors. In N.A.H. v. S.L.S., 9 P.3d at 363, the Colorado Supreme Court observed that “the whole paternity proceeding [is intended] to be about the best interests of the child.” This focus is in part because “[t]he outcome of a paternity action irrevocably alters a child’s current family situation and her future.” 9 P.3d at 364. Accordingly, it is clear that courts weighing two or more conflicting presumptions may consider a wide array of nonexclusive factors when deciding which presumption serves the child’s best interests.
Because we reverse the district court’s decision and remand for a hearing for the district court to properly determine which presumption “is founded on the weightier considerations of policy and logic, including the best interests of the child,” we need not address the balance of the issues presented.
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Buser, J.:
While driving under the influence of alcohol, Miles E. Theurer caused a head-on collision which killed Elizabeth Young and Michael Stanley. In keeping with a plea agreement, Theurer pled no contest to two counts of involuntary manslaughter while driving under tire influence of alcohol. Under the Revised Kansas Sentencing Guidelines Act (RKSGA), K.S.A. 2013 Supp. 21-6801 et seq., the district court was required to impose presumptive sentences of imprisonment.. Instead, the district court sentenced Theurer to two concurrent 41-nronth sentences but granted his motion for dispositional departure sentences. As a result, Theurer was not imprisoned but was granted 36 months of probation while under house arrest with special conditions, including serving 60 days in jail.
We hold the sentencing court erred in four aspects when it granted Theurer s motion for dispositional departure sentences. First, as a general matter, the sentencing court based its sentencing decision on an error of law by applying an incorrect legal standard. Second, the overriding factor articulated by the sentencing court for granting a departure in this case — that the defendant is an ex ceptional person with the potential to provide a great benefit to society — is not a substantial and compelling reason to grant departure sentences. Third, some of the sentencing court’s other articulated reasons for granting departure sentences were not supported by substantial competent evidence. Fourth, those reasons enunciated by the sentencing court which were supported by substantial competent evidence, when considered together, did not provide a substantial and compelling reason to grant departure sentences given the circumstances of this involuntary manslaughter case.
Accordingly, we reverse the judgment of the sentencing court, vacate the sentences imposed, and remand the case to the district court with directions for resentencing.
Factual and Procedural Background
On Saturday, May 12, 2012, Theurer received a bachelor of science degree in agriculture from Kansas State University (KSU). The following evening, Theurer and three friends celebrated the occasion by visiting the Mustang Gentlemen’s Club, a Junction City strip club. Several hours later, in the early morning hours of Monday, May 14, 2012, with Theurer driving a Silverado pickup truck, the four men began the return trip to Manhattan.
Eyewitnesses described Theurer as driving erratically, too fast for the circumstances, and swerving on the roadway. At about 2:45 a.m., Theurer approached a construction zone on Fort Riley Boulevard/Highway K-18, with marked eastbound and westbound lanes. Although he was traveling eastbound, Theurer entered the westbound lane, driving in the wrong direction.
Ronnie Loggins, who had been following Theurer’s truck and had properly entered the eastbound lane, flashed his headlights, honked his horn, and pulled next to Theurer, waving his arms in an effort to alert him that he was driving the wrong way. Theurer did not respond to these warnings but continued traveling eastbound at about 55 miles per hour in the westbound lane of the construction zone.
A short time later, Theurer’s truck collided head-on with a westbound Buick LeSabre near Stagg Hill Road. The automobile was driven by Young, a 31-year-old mother of two children. The passenger was Stanley, a 30-year-old father of two children. Due to the force of the collision, the Buick went “almost straight up in [to] the air.” The vehicle was totaled, with the front end “completely smashed.”
Young and Stanley had “severe trauma” and were killed instantly. In an affidavit filed in support of the arrest of Theurer, Officer Calvin Sanders of the Riley County Police Department averred:
“The coroner results indicated that Young ‘expired as a consequence of overwhelming injuries with damage to the central nervous system that cause[d] . . . instant death’ and both died as [a] result of ‘atlanto-occipital separation.’ This means that both had their necks broken at the skull with a tear of tire spinal cord due to the impact of tire collision.”
Officer Sanders was dispatched to the collision. As he approached Theurer s truck, he “immediately smelled the odor of alcoholic beverage from inside the vehicle.” When asked what happened, Theurer told the officer, “ Tn all honesty, I thought I was in the correct lane.’ ”
Theurer and his friends were seriously injured and taken to area hospitals. At Mercy Hospital, Theurer’s blood was drawn for alcohol testing. At that time, he volunteered to Officer Sanders, “ I’ll be honest; I’m not going to say I didn’t have anything to drink.’ ” After waiving his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), Theurer advised Officer Sanders that he had consumed two Bud Light beers at a bar. Theurer told the officer he had stopped drinking alcohol 30 minutes prior to leaving Junction City for Manhattan. When Theurer was asked if he believed he was under tire influence of alcohol, he replied, “ 1 mean I just had a couple.’ ” Theurer also said he did not notice anyone in a vehicle trying to get his attention before the collision.
Andrew Mason, a passenger in Theurer’s truck, was later interviewed by Officer Sanders. According to Mason, the men went to the strip club at about 8 p.m. on Sunday and finished drinking about 30 minutes before leaving Junction City early Monday mom- ing to return home to Manhattan. Mason claimed that prior to the collision Theurer drank one or two bottles of beer.
At the scene of the collision, Officer Sanders found in the passenger s compartment of Theurer s truck a Coors Light beer can, a “ ‘Coors Light case,’ ” and a “ ‘Maker’s Mark liquor bottle.’ ” Theurer’s blood sample was taken to the Kansas Bureau of Investigation laboratory for forensic' testing. The results revealed that Theurer’s blood-alcohol content was .19 — more than twice the legal limit. See K.S.A. 2011 Supp. 8-1567(a)(2).
As a consequence of the collision, Lance Schmidt, a passenger in Theurer’s truck, suffered a closed head injury which necessitated therapy at the Madonna Rehabilitation Hospital in Lincoln, Nebraska, in an effort to regain the use of his arms. Mason, also received physical therapy for his injuries. Joseph Iliff, another passenger in Theurer’s track, was also injured, and Theurer’s right foot had been almost amputated as a result of the accident impact.
After the collision, Theurer attended classes at KSU through the summer and fall semesters of 2012. On April 9, 2013, the State charged Theurer with two counts of involuntary manslaughter while driving under the influence of alcohol, severity level 4 person felonies in violation of K.S.A. 2011 Supp. 21-5405(a)(3) — see K.S.A. 2011 Supp. 8-1567(a)(2) — and two counts of aggravated battery, severity level 5 person felonies, in violation of K.S.A. 2011 Supp. 21-5413(b)(2)(A), for the injuries sustained by Schmidt and Mason. Theurer surrendered to authorities, and he was released on bond.
On May 7, 2013, in keeping with a plea agreement, Theurer entered pleas of nolo contendere to two counts of involuntary manslaughter. In return, the State dismissed the aggravated battery charges and promised not to file additional charges related to the collision. The State also agreed to recommend that Theurer serve the standard presumptive RKSGA prison sentence for each of the involuntary manslaughter convictions. The sentences were to run concurrent with one another. If followed by the sentencing court, the State’s recommendations meant that Theurer would serve 41 months in prison. See K.S.A. 2011 Supp. 21-6804(a). In keeping with the plea agreement, however, Theurer reserved the right to request a departure from serving the presumptive prison sentences. After being informed of the plea agreement, District Judge John F. Bosch accepted the pleas and found Theurer guilty of two counts of involuntary manslaughter.
After the plea hearing, Theurer filed a motion for downward durational and dispositional departure sentences. He identified 17 mitigating factors as substantial and compelling reasons to depart from the presumptive RKSGA sentences of imprisonment: (1) Theurer’s “unlawful conduct was aberrant behavior”; (2) Theurer “has provided extraordinary acceptance of responsibility”; (3) Theurer “has no criminal history,” and is “relatively young and a very good candidate for continued rehabilitation”; (4) Theurer has “Type 1 diabetes, . . . currently uses an insulin pump,” and takes medication for high blood pressure; his diabetes is difficult to stabilize and needs close monitoring, which is “expensive and requires specialized professional care,” including seeing a “specialist 2-3 times per year”; (5) Theurer “maintained a 4.0 GPA during high school” and “participated in numerous extra-curricular organizations”; (6) Theurer completed his bachelor’s degree and “[djuring his undergraduate years [he] continued to be an outstanding student, maintaining a 3.722 GPA, and participating in many extracurricular programs,” and thus he “has played an active and positive role in the community throughout his education”; (7) Theurer “currently has two academic years remaining in his pursuit of two post-graduate degrees” in veterinary medicine and “Diagnostic and Pathology Medicine”; (8) Theurer “is currently involved in a research project that has the long term potential to increase profitability in the beef industry, and reduce the use of antibiotics on food animals”; (9) Theurer “is currently developing an Antimicrobial Resistance Seminar that will bring both medical and veterinary professionals together” and “be beneficial to the treatment and control of a variety of diseases”; (10) Theurer “was a founding member of the Food For Thought Organization,” a “grass-roots group . . . started by students coming together to discuss ways to meet the challenges of misconceptions about an agricultural industry removed from urban consumers”; (11) Theurer “has accumulated approximately $102,000 in outstanding student loans,” and “[s]ociety benefits from these loans being repaid”; (12) Theu-rer “wishes to continue his education after sentencing so that he may reach his potential and do the maximum amount of good for society”; (13) Theurer “has already begun the rehabilitation process” by completing a “course of drug and alcohol awareness, and has begun the process of completing an Alcohol Evaluation through Pawnee Mental Health Care Services”; (14) Theurer “has on numerous occasions told others about the terrible mistake he made the night of the accident,” he “has shared with others the tragic consequences that occurred due to his poor judgment in deciding to get behind the wheel after consuming alcohol,” he “recognizes that he is not the first, or likely tire last, person who will make this mistake,” and he “has contacted the administrators of several institutions seeking the opportunity to share his story and the lessons that he has learned with young students”; (15) Theurer “is fortunate to have a caring and supportive family, including his father, mother, and two older brothers, to whom he is very close” and who “have continued their support for him through this difficult time in his life”; (16) Theurer “has numerous friends that continue to support him”; and (17) Theurer “has also developed an extensive network of professionals and academics who believe that society would benefit from a departure from the sentencing guidelines [in this case].”
In support of his departure motion, Theurer provided academic transcripts, descriptions of his current educational projects, a breakdown of his student loan debt, a certificate of completion from an on-line alcohol and drug awareness course, letters expressing interest in hearing him speak about drunk driving, and over 100 letters submitted as character references.
In his departure motion, Theurer proposed that instead of the district court imposing the presumptive sentences of imprisonment, the court' should impose an “ ‘alternative’ or ‘unique’ sentence”:
“Mr. Theurer proposes a sentence that, if probation alone is insufficient, would combine probation and house arrest during the school year with incarceration of some land (potentially the Riley County Jail) during any time off from his academic program that he may otherwise enjoy. The court could prevent Mr. Theurer from attending social events, parties, restaurants, movie theatres, and any and all other recreational activities. Mr. Theurer does request however, that he be allowed to fulfill his obligations stemming from his proposals to local institutions to warn students and members of the dangers of drinking and driving, that he be allowed to complete his academic requirements, and that he be allowed to receive the necessary medical care. At the conclusion of Mr. Theurer’s academic program, house arrest could be continued as long as the court may deem just and appropriate. This option allows [him] to do the maximum amount of good for society, while paying his debt to the same.”
A presentence investigation (PSI) report was prepared to assist the sentencing court. In this report, Theurer was asked to provide his version of the crimes of conviction. Theurer wrote: “I made a mistake. I consumed alcohol and I drove my vehicle. I am truly sorry for all consequences.”
The PSI report also included statements written by family members of Young and Stanley. Stanley’s father wrote that he had a mental breakdown after “losing my only child, my boy, my son.” The father said he could not work for 7 weeks and fell behind on his payments, including his house payments. He described how his son’s own children, 11 and 9 years old, were now fatherless. Stanley’s father observed that Theurer “still get[s h]olidays and [b]irthdays,” but that his own family has only memories.
Stanley’s stepmother wrote that “with [Stanley] gone it seems the world is a darker place” and “[t]here is a void that can’t be healed.” She said she had “watched my family fall apart” and that her husband “has lost his zest for life.” She described how Stanley’s daughter “took all his clothes clean and dirty [and] put them in 1 big bag so she can keep his scent forever.” She described how Stanley’s son “became suicidal, talking about taking his own life just to be in the box with his Dad.”
Stanley’s daughter wrote: “I’m really sad .... I will never hear or feel him pick me up and swing me around [and] sing to me.” She said Stanley “played silly games, gave piggy back rides, [and] rode my [tricycle] to make me laugh. . . . We had tea [parties], watchfed] movies together.” She said: “He will miss all my school events, sports events, . . . never see me graduate or go to college, never see me get married or be there to give me away, never hold my babies or be a grandpa like [P]apa.”
Stanley’s son wrote: “I want my Daddy, but he’s never coming home again.” The boy said: “I wanted to die to be with him” and that “I had to see a special doctor. I now take [medicine] to help me.” He also said: “I know I can’t hurt myself, ‘cause then [N]ana would die if I died.”
Stanley’s mother wrote that the “loss of my son has impacted me greatly.” She “had to increase [her] medications” to the maximum dose and yet still has “a hard time getting motivated” and “concentrating at work.” She stated she would “ ‘start to cry, and can’t stop’ ” and also said: “ 1 don’t think that anyone can ever understand how the loss of a child impacts a person’s life.’ ” Other relatives of Stanley also submitted written statements.
Judge Bosch presided over the sentencing hearing which occurred on June 17, 2013. In addition to considering the departure pleadings, PSI report, drug and alcohol evaluation report, and written victim impact statements, the sentencing court listened to personal statements made at the hearing.
Stanley’s stepmother mentioned at sentencing that Stanley’s daughter “looks for her daddy at night. She gets up, walks through the house, walks up to her dad, stands there and talks to him.” She said Stanley’s son “was having breakdowns in the classroom, crying uncontrollably,” and “has been under counseling heavily for a whole year.”
A letter was read from Young’s daughter, who was also present at sentencing. She detailed numerous personal activities and anticipated events of her life which her mother would never share. Speaking also for her younger brother in the letter, she said: “[W]e were both completely robhed of everything that could have happened in the future.”
Finally, Stanley’s father, referring to Theurer’s proposal to make speeches about drunk driving, said, “Well, that’s a good idea, but I think he should get the full effect of it, of going and doing his time and then coming back and helping kids so he can tell them what to expect.” It is noteworthy that all of the statements from the victims’ families emphasized the need for Theurer to serve a prison sentence for his crimes.
At the sentencing hearing, Theurer also addressed the court. Theurer apologized to the families of Young and Stanley, especially the victims’ children. He apologized also “to the passengers that were in my vehicle that night of the accident,” to “the community, to tire officers and emergency personnel that responded to the scene,” to his “family and friends,” and to the “judge, as representative, as tire State of Kansas judicial system, for having to take the time and effort to process the case before you.”
Theurer asked the sentencing court “to grant the downward departure to allow me tire opportunity to talk to the high school, college, [and] professional students, [and to] explain the true consequences and their effects of drinking and driving.” Theurer said his “goal... is to explain the nightmare that I have been through, so they will not make the same tragic, dumb mistake that I made drat evening.” Theurer said, “While there’s no amount of money I could pay, time I could serve, community service Ürat I can do to ever repay my debt to society,” he could “still be a positive influence on society and help people from making some of these same tragic mistakes in the future.”
During the hearing, the sentencing court quoted extensively from character reference letters written in support of Theurer. These letters were written by Theurer’s friends, fellow students, former teachers, KSU faculty and administrators, and individuals associated with agriculture, including the Kansas Secretary of Agriculture.
At the hearing, the sentencing court made several factual findings and legal conclusions. It found that Theurer had a low risk of reoffense based on a Level of Service Inventory Test (LSI-R test) and the Pawnee Mental Health Care Services drug and alcohol assessment which showed a “low probability that Mr. Theurer has a substance dependence disorder.” The sentencing court also found that Theurer was remorseful and had no criminal history, including “no evidence that he has ever broken the law before.” It made findings regarding Theurer’s diabetes and his use of an insulin pump. Additionally, the district court found Theurer has a supportive family and a “[g]ood” employment and education record. It found Theurer had engaged in “rehabilitation efforts” by staying in school, pursuing his degree, and presenting “a proposal that. . . instead of sitting in prison for the next three years ... he go out into society to high schools, to colleges, to universities, to whoever, and tell them his stoiy, to educate them.” Finally, the sentencing court found Theurer was not a threat to public safety, and he had accepted responsibility for his crimes.
Judge Bosch granted Theurer’s motion for dispositional departure sentences. In ruling from die bench, the district judge extensively addressed what he considered were Theurer’s exceptional personal characteristics:
“Mr. Theurer would be, and it’s been proposed, an excellent person to speak. People have described him in the letters as an ‘impactful speaker’ with the ‘ability to capture an audience.’ He’s ‘well-spoken.’ He will ‘be an advocate against drunk driving’ if allowed to speak. “When he speaks, people listen.’ ‘The mothers and fathers of tire thousands lives he can reach through speaking engagements will be grateful.’ He could ‘share his story throughout the nation.’ He is an ‘articulate, convincing speaker.’ Basically, other than this incident, which has been described as aberrant behavior, Mr. Theurer has led a rather perfect life, in spite of the fact he’s diabetic, in spite of the fact he could not play sports, which might account for why he has been so involved in things. I don’t think there was a tiring in high school he wasn’t involved in. I don’t think there was a thing in college that he wasn’t involved in.
“One of his professors ... indicated in the past 10 years, as long as this professor has been teaching, there’s not been another person who has been more involved than Mr. Theurer. . . .
“I don’t believe any of the factors that I have mentioned, Mr. Theurer, standing alone, would justify a downward departure. But I can’t imagine a situation where we have — I ever have someone come before me again where they have done everything that society expects to be done by a person except for this one thing.
“You have been described as, you know, a role model to children, described as a stellar student, as a star student. It’s too many to cover, but you are an exceptional person that I find to be an atypical case. And in this case that, when considering tire totality of all of the facts of your life up to this point, I find that you should be granted a downward departure and that there are substantial, compelling reasons when considered in all their totality. . . .
“So what the Court will do for a sentence is I will require that you serve as much time in the Riley County Jail as I can when I place you on probation, which is 60 days. . . . You will be placed on 36 months of probation with the Court Service Officer for Riley County .... And for you to use your God-given talents, and if you can reach one person it will be worth it during those 36 months. I have no doubt that maybe you can do the same thing if you spent drat time in prison, but I don’t know.
“What I think is best for society is that you get your degree, drat you realize that you have a lot of good to do with your life, not just for yourself, but you have, really, tirree people’s lives on your shoulders. You have everything drat Mr. Stanley would have done good, everydring drat Elizabeth Young could have done during their lifetime. And you’re going to have to make up . . . , to society, what you’ve done. And I drink this might be a start where, if you do as I drink you can, as you are such an atypical, such a unique person with such skills, that I think maybe you can touch some people out there. And so die 60 days you’re sitting in jail, I want you to put together a written proposal for how you are going to do what you say you can do. And . . . I’m going to order tirat during dre 36 nrondis diat you are on probation that you talk to no less than 36 eidrer high schools, colleges, [or] church groups.
“. .. And if you can get — reach through to one person and save one life or make an impact on one person, dien I think drat tirat is dre better thing for society.” (Emphasis added.)
After the hearing, the sentencing court summarized its reasons for ordering the departure sentences in its journal entry of judgment:
“Court finds Defendant an a-typical case. Totality of circumstances of factors listed on tire record include: good grades in school, lack of criminal record, diabetic medical condition, Defendant’s good character, Defendant’s good speaking ability, [and] Defendant’s letters of recommendation are substantial and compelling reasons to depart.” (Emphasis added.)
The State filed a timely appeal of the district court’s granting of departure sentences.
Introduction
On appeal, the State first contends the sentencing court “did not apply the correct policy standards when considering whether there [were] substantial and compelling reasons to grant a dispositional departure.” The State also maintains the sentencing court’s “reasons as a whole for departure were not substantial and compelling reasons to depart in this case.” In response, Theurer maintains the sentencing court “addressed appropriate evidence within the scope of the statutes and in furtherance of tire purpose and principals of the guidelines.”
Kansas Law Regarding Departure Decisions and Appellate Review
We begin with a summary of Kansas law applicable to departure decisions and our standards of appellate review. “[T]he sentencing judge shall impose the presumptive sentence” provided by the RKSGA unless the judge finds “substantial and compelling reasons to impose a departure sentence.” K.S.A. 2013 Supp. 21-6815(a). If the sentencing court determines that a departure is warranted, it must “state on tire record at the time of sentencing the substantial and compelling reasons for the departure” and make findings of fact as to those reasons. K.S.A. 2013 Supp. 21-6815(a); K.S.A. 2013 Supp. 21-6817(a)(4). When there is a conflict between the reasons articulated in tire written journal entiy and those provided by tire sentencing court at the hearing: “ ‘The court’s comments at the time of sentencing, not the written journal entry, govern as to the reasons for departure.’ [Citations omitted.]” State v. Spencer, 291 Kan. 796, 811, 248 P.3d 256 (2011).
A departure sentence will be upheld on appeal if any of the mitigating factors articulated by the sentencing court is substantial and compelling. State v. Bird, 298 Kan. 393, 398, 312 P.3d 1265 (2013). Conversely, each individual factor need not be sufficient, standing alone, to justify the departure sentence if the reasons collectively constitute a substantial and compelling basis for departing from the presumptive sentence. 298 Kan. at 398.
A substantial and compelling reason to depart downward from the presumptive sentence is a “ ‘mitigating factor.’ ” K.S.A. 2013 Supp. 21-6803(n). K.S.A. 2013 Supp. 21-6815(c)(1) contains a nonexclusive list of five mitigating factors, which a district court may consider when determining whether substantial and compelling reasons exist for a departure sentence. Sentencing courts may also consider nonstatutory factors “ ‘as long as there is evidence in the record to support such factors and the use of the factors would be consistent with the intent and purposes of tire sentencing guidelines.’ [Citations omitted.]” State v. Hines, 296 Kan. 608, 616, 294 P.3d 270 (2013). A sentencing court’s use of statutory factors should not be reviewed with greater deference than a decision to rely upon nonstatutory factors, and tire use of nonstatutoiy factors should not be subjected to stricter scrutiny. State v. Martin, 285 Kan. 735, 747, 175 P.3d 832 (2008).
The standard of appellate review of a departure sentence depends on the question raised. An appellate court applies a substantial competent evidence standard when the question on appeal is whether the record supports the particular reasons for departure articulated by the sentencing court. Bird, 298 Kan. at 397. Substantial competent evidence is evidence possessing both relevance and substance that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). Appellate review is de novo, however, when the question involves making a determination whether a particular mitigating factor found by the sentencing court “can ‘ever, as a matter of law, be substantial and compelling in any case.’ ” Bird, 298 Kan. at 397-98. Finally, when the record supports the reasons behind the departure and those reasons are legally valid, an appellate court utilizes an abuse of discretion standard to decide whether the sentencing court based its conclusion that substantial and compelling reasons warranted a departure upon a proper weighing of the mitigating factors. 298 Kan. at 398; State v. Rochelle, 297 Kan. 32, 45-46, 298 P.3d 293, cert. denied 134 S. Ct. 270 (2013).
A judicial action, such as a sentencing court’s decision to grant dispositional departure sentences, constitutes an abuse of discretion
“if [the] judicial action (1) is arbitrary, fanciful, or unreasonable, i.e., if no reasonable person would have taken the view adopted by the trial court; (2) is based on an error of law, i.e., if the discretion is guided by an erroneous legal conclusion; or (3) is 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, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012).
If an appellate court concludes the sentencing court’s “factual findings are not supported by the evidence in the record or do not establish substantial and compelling reasons for a departure,” the appellate court must “remand the case to the [sentencing] court for resentencing.” K.S.A. 2013 Supp. 21-6820(f).
Finally, to the degree we must interpret the governing Kansas statutes, our review is unlimited. See State v. Andry, 295 Kan. 733, 735, 286 P.3d 207 (2012).
Kansas Legislative Policy and Legal Standards Regarding Sentencing
We begin with the State’s argument regarding what it calls “policy standards,” meaning legal standards relating to sentencing established by the Kansas Legislature as a matter of public policy. The State contends the sentencing court “did not apply the correct policy standards when considering whether there [were] substantial and compelling reasons to grant a dispositional departure.” In the State’s view, this error is shown, in part, by the sentencing court’s citing and quoting from an inapplicable statute, K.S.A. 2013 Supp. 21-6601, at the beginning of its ruling. In citing this statute, the State maintains the sentencing court erroneously stated that Kansas sentencing statutes should be liberally construed to focus on a defendant’s “ ‘characteristics, circumstances, needs and potentialities ....’” See K.S.A. 2013 Supp. 21-6601.
In response, Theurer concedes that “[t]he State’s technical contention is accurate: the departure statutes do not fall within the range of statutes to which the quoted language applies.” But Theurer contends the correct statutory language, K.S.A. 2013 Supp. 21-6802(a) and (b), “does not remove all discretion from the trial court to consider individual characteristics as the State suggests.”
At the beginning of the hearing, the sentencing judge said he would determine Theurer’s sentences
“in light of the statute that requires how courts are to construe the sentencing statutes.
“And I’m just going to quote from the statute: It says — it makes it clear — K.S.A. 21-6601 — Legislative policy to be followed is to be liberally construed to the end that persons convicted of crimes shall be dealt with in accordance with the individual characteristics, circumstances, needs, and potentialities as revealed by case studies; that dangerous offenders be correctly treated in custody for long terms as needed; and that other offenders shall be dealt with by probation, suspended sentence, fined, or assignment to a community correctional service program when ever such disposition appears practicable and not detrimental to the needs of public safety and the welfare of the offender.” (Emphasis added.)
The State highlights the sentencing court’s omission of the opening clause of the statute: “K.S.A. 2013 Supp. 21-6601 through 21-6629, and amendments thereto, shall be liberally construed . . . .” (Emphasis added.) K.S.A. 2013 Supp. 21-6601.
On appeal, both parties agree the sentencing court erred because K.S.A. 2013 Supp. 21-6601 did not pertain to the sentencing statutes in this case. Although Theurer argues the error was “technical,” we disagree. A brief historical review reveals that K.S.A. 2013 Supp. 21-6601 reflects an earlier, different sentencing policy from that which currently is found in the Revised Kansas Sentencing Guidelines Act (RKSGA) K.S.A. 2013 Supp. 21-6801 et seq., and its predecessor, the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.
The language now found in K.S.A. 2013 Supp. 21-6601 was first enacted in 1969 as part of a general recodification of Kansas criminal law. See K.S.A. 21-4601 (Weeks); L. 1969, ch. 180, sec. 21-4601. The 1969 version of the statute began by stating: “This article shall be liberally construed . . . ,” meaning article 46, which, was the article controlling sentencing. (Emphasis added.) See K.S.A. 21-4601; L. 1969, ch. 180, sec. 21-4601. The statute still began this way in 1992 when the KSGA was enacted, but the KSGA was set out in a new article 47, K.S.A. 21-4701 et seq., again demonstrating the inapplicability of the statutory language quoted by the sentencing court to the sentencing guidelines in Kansas. See, e.g., K.S.A. 21-4701; K.S.A. 21-4702; L. 1992, ch. 239, secs. 1-2.
Sentencing under the 1969 Kansas Criminal Code was indeterminate, meaning “[discretion was vested in the sentencing judge to establish the minimum and maximum term of the sentence, within the limits set by the statute.” State v. Van Winkle, 256 Kan. 890, Syl. ¶ 9, 889 P.2d 749 (1995); see White v. Bruce, 23 Kan. App. 2d 449, 453, 932 P.2d 448 (distinguishing “pre-guidelines indeterminate sentence” from “a new guidelines determinate sentence”) rev. denied 262 Kan. 970 (1997). Indeterminate sentencing reflected a legislative policy shifting “the balance toward rehabili tation as the primary goal of sentencing.” Note, Sentencing Felons to Imprisonment Under the Kansas Criminal Code: The Need For a Consistent Sentencing Policy, 10 Washburn L.J. 269, 273 (1971). “As a necessary prerequisite to a correctional program aimed at rehabilitating the offender,” it was “essential that the sentence be tailored to the offender.” 10 Washburn L.J. at 273. Thus, the legislature enacted the language now found in K.S.A. 2013 Supp. 21-6601, directing liberal construction of sentencing statutes “to the end that persons convicted of crime shall be dealt with in accordance to their individual characteristics, circumstances, needs, and potentialities . . . .” (Emphasis added.) K.S.A. 21-4601; L. 1969, ch. 180, sec. 21-4601; see 10 Washburn L.J. at 273.
Importantly, however, the Kansas Legislature eventually reappraised its “departure from the traditional pattern of equating sanctions with the crime.” 10 Washburn L.J. at 273. In 1989, the legislature created the Kansas Sentencing Commission (KSC) and directed it to “develop a sentencing guideline model or grid based on fairness and equity.... The sentencing guideline model or grid shall establish rational and consistent sentencing standards which reduce sentence disparity, to include, but not be limited to, racial and regional biases which may exist under current sentencing practices.” K.S.A. 1989 Supp. 74-9101; L. 1989, ch. 225, sec. 1.
The KSC submitted its report to the legislature on January 15, 1991. See State v. Soler, 25 Kan. App. 2d 1, 6, 957 P.2d 516 (1998). Among the goals of the proposed guidelines were not only to “ensure the elimination of any racial, geographical or other bias that may exist,” but also to “establish sentences that are proportional to the seriousness of the offense and the degree of injury to the victim.” (Emphasis added.) Recommendations of the Kansas Sentencing Commission, ch. 1, p. 2 (January 15, 1991). The KSC noted that “[m]aking the punishment proportional to the crime is a key ingredient in guidelines systems. This concept involves the development of a hierarchy of harms that result from different levels of criminal activity. Once this ordering process takes place, guideline sentences ensure that the punishment fits the harm.” (Emphasis added.) Recommendations of the Kansas Sentencing Commission, ch. 1, p. 3. The KSC also stated: “Like proportionality, fairness is a key concept. . . . When factors external to the crime come into play, punishment may become a function of employment status, marital status, amount of education, or a subjective assessment of one’s chances for rehabilitation." (Emphasis added.) Recommendations of the Kansas Sentencing Commission, ch. 1, pp. 3-4.
In 1992, as previously noted, the Kansas Legislature adopted the sentencing guidelines approach by enacting the KSGA. Notably, the KSGA strongly emphasized the characteristics of the crime or case rather than the characteristics of the individual defendant: “The sentencing guidelines . . . shall apply equally to all offenders in all parts of the state, without discrimination as to any element that does not relate to the crime or the previous criminal record of the defendant.” K.S.A. 21-4702; see generally State v. Favela, 259 Kan. 215, 233-34, 911 P.2d 792 (1996).
In 2007, tire legislature created the Kansas Criminal Code Re-codification Commission (KCCRC) to recodify the Kansas Criminal Code generally. See K.S.A. 21-4801; L. 2007, ch. 197, sec. 8. Following the KCCRC’s recommendations, the RKSGA restates the KSGA’s direction that the sentencing guidelines “shall apply equally to all offenders in all parts of the state,” but it omits the prior language forbidding discrimination as to any element that does not relate to the crime. K.S.A. 2013 Supp. 21-6802(a); Kansas Criminal Code Recodification Commission, Final Report, Appendix A, p. 382 (December 16, 2010) (http://www.kansasjudicial council.org/Resources.shtml).
The RKSGA also directs that “[t]he sentencing court may consider in all cases a range of alternatives with gradations of supervisory, supportive and custodial facilities at its disposal so as to permit a sentence appropriate for each individual case, consistent with these guidelines and the permitted dispositional and durational departures contained in [this Act].” K.S.A. 2013 Supp. 21-6802(b). These changes appear to reflect a more balanced, case-based view of sentencing, in line with the KCCRC’s recommendation that a sentence should “enhance public safety through deterrence of future criminal action, . . . rehabilitate the offender, and . . . appropriately punish [the offender] for commit ting the offense.” Kansas Criminal Code Recodification Commission, Final Report, p. 28.
One should not mistake the RKSGA’s continued emphasis on the individual criminal case, meaning the facts surrounding tire crime, with the personal characteristics of the individual defendant, wholly apart from the case. See K.S.A. 2013 Supp. 21-6802(a)-(b). Indeed, a review of the RKSGA’s nonexclusive mitigating factors which may be considered by the sentencing court in making a departure decision underscores the importance the legislature has placed on the individual facts of the particular criminal case.
The RKSGA repeats verbatim the nonexclusive list of mitigating factors from the ’KSGA. See K.S.A. 2013 Supp. 21-6815(c)(1)(A)-(E); K.S.A. 21-4716(c)(1)(A)-(E). The State correctly argues that these factors show a legislative policy to “address circumstances, behaviors, and facts toithin the case“ rather than “a defendant’s individual characteristics outside . . . the case” itself. (Emphasis added.)
K.S.A. 2013 Supp. 21-6815(c)(1)(A)-(E) provides:
“(c)(1)Subject to the provisions of subsections (c)(3) and (e), the following nonexclusive list of mitigating factors may be considered in determining whether substantial and compelling reasons for a departure exist:
(A) The victim was an aggressor or participant in the criminal conduct associated with the crime of conviction.
(B) The offender played a minor or passive role in the crime or participated under circumstances of duress or compulsion. This factor may be considered when it is not sufficient as a complete defense.
(C) The offender, because of physical or mental impairment, lacked substantial capacity for judgment tohen the offense was committed. The voluntary use of intoxicants, drugs or alcohol does not fall within the purview of this factor.
(D) The defendant, or the defendant’s children, suffered a continuing pattern of physical or sexual abuse by the victim of the offense and the offense is a response to that abuse.
(E) The degree of harm or loss attributed to the current crime of conviction was significantly less than typical for such an offense.” (Emphasis added.)
These five statutory mitigating factors listed in the RKSGA plainly relate to the unique facts and circumstances of a particular criminal case. Moreover, when referring to a behavior or characteristic of the particular criminal defendant or victim, the mitigat ing factors focus on those behaviors and characteristics as they relate to or impact the commission of the particular crime.
We believe the legislative policy set forth in K.S.A. 2013 Supp. 21-6802(a) and (b), and exemplified by the statutory mitigating factors listed in K.S.A. 2013 Supp. 21-6815(c)(1), is in sharp contrast to the sentencing court’s approach in this case which mistakenly grounded its decisionmaking based on an inapplicable statute, K.S.A. 2013 Supp. 21-6601. This error of law caused the sentencing court to mistakenly fixate on the personal qualities and characteristics of Theurer unrelated to the defendant’s deplorable criminal conduct which caused the deaths of Young and Stanley.
The sentencing judge’s approach was best summarized by his statement to Theurer at sentencing that “you are an exceptional person that I find to be an atypical case.” This finding was also repeated in the journal entry of judgment: “Court finds Defendant an a-typical case.” In essence, for the sentencing court, Theurer was the case. The sentencing court’s departure decision was reducible to a single overriding consideration wholly apart from the egregious facts and circumstances of this involuntary manslaughter case: Theurer was an “exceptional person.”
Not only did the sentencing court’s error of law mistakenly cause it to focus on Theurer as an exceptional person, without appropriate consideration given to the particular facts and circumstances of his involuntary manslaughter convictions, the sentencing court’s finding of exceptionalism was predicated on the notion that Theurer had the potential to be of great benefit to society.
The sentencing judge told Theurer:
“[T]he totality of all of the facts of your life up to this point, . . . [provided] substantial [and] compelling reasons when considered in their totality.
“What I think is best for society is that you get your degree, that you realize that you have a lot of good to do with your life .... I think this might be a start where, if you do as I think you can, as you are such an atypical, such a unique person with such skills, that I think maybe you can touch some people out there.”
On appeal, Theurer highlights the character reference letters which focus
“on the cost to society that would occur from [Theurer] being incarcerated rather than fulfilling his promise, and specifically many of the authors urged the court to fashion a sentence that would allow [Theurer] to complete his degrees so that he could go on to be of significant benefit to society.”
Theurer was deemed to be an exceptional person meriting dis-positional departure sentences because, in large measure, he exhibited the potential to perform extraordinary good work in society. But tire fact that a defendant has the potential to be of great benefit to society is not a statutory mitigating factor justifying a departure sentence. Moreover, we know of no caselaw wherein such a reason was found by a Kansas appellate court to be a nonstatutory mitigating factor.
Of course, a nonstatutory factor may be employed by a sentencing court if the use of the factor is consistent with the intent and principles of the sentencing guidelines. Bird, 298 Kan. at 399. Our Supreme Court has recently identified some of the underlying principles of the sentencing guidelines:
"[I]ncarceration should be reserved for serious/violent offenders who present a threat to public safety; sanctions should be imposed based on harm inflicted; sanctions should be uniform and not related to socioeconomic factors, race, or geographic location; penalties should be clear so as to be understood; individuals should not be sent to prison solely to gain education or job skills; and the system must be rational to allow policymakers to allocate resources. [Citation omitted.]” (Emphasis added.) 298 Kan. at 399.
Moreover, our Supreme Court has recognized three legislative purposes of the sentencing guidelines: “(1) to reduce prison overcrowding; (2) to protect public safety, and (3) to standardize sentences so similarly situated offenders are treated the same.” (Emphasis added.) 298 Kan. at 399.
There is nothing in the statutory language of the RKSGA which suggests that a criminal defendant who is an exceptional person based on a potential to benefit society merits a finding of mitigation. Moreover, the use of this factor is inconsistent with the intent and principles of the sentencing guidelines. Indeed, the sentencing guidelines would mean little if the punishment did not fit the crime and similarly situated offenders were treated unequally because a sentencing court formulated a judicial calculus of each criminal defendant’s social usefulness. If this factor was considered, wide sentencing disparities would obviously result among defendants of greater or lesser talents, social and economic status, and personality traits. Accordingly, we hold that a sentencing court’s finding that a defendant is an exceptional person with the potential to provide a great benefit to society is not a substantial and compelling reason to grant a departure sentence under the RKSGA.
The sentencing court’s failure to follow the applicable legal standards, K.S.A. 2013 Supp. 21-6802 and K.S.A. 2013 Supp. 21-6815(c)(1)(A)-(E), resulted in the district court’s erroneous, laser-like focus on Theurer as an exceptional person potentially capable of benefitting society rather than assessing whether departure sentences were “appropriate for [this] individual case.” See K.S.A. 2013 Supp. 21-6802(b). This, in turn, resulted in tire sentencing court’s mistaken conclusion that Theurer’s exceptionalism was a valid nonstatutory mitigating factor that warranted departure sentences. Accordingly, we hold the sentencing court, by failing to apply tire correct legal standards when considering Theurer’s sentences, and by applying an invalid nonstatutory mitigating departure factor, abused its discretion by basing its judicial decision on errors of law. See Ward, 292 Kan. 541, Syl. ¶ 3.
Individual Reasons Cited by the Sentencing Court for Granting Departure Sentences
We now turn to the other reasons or factors found by the sentencing court which, considered collectively, resulted in its ruling that Theurer was deserving of durational departure sentences. In keeping with our standard of review, we first examine whether each of the sentencing court’s individual reasons for departure was supported by substantial competent evidence. Next, because the sentencing court found that, standing alone, none of the individual reasons were substantial and compelling, we consider if die separate factors which were supported by substantial competent evidence, considered together, constitute substantial and compelling reasons to depart under the particular facts of this case.
Diabetic Condition
In his departure motion, Theurer explained that incarceration may have “a significant negative impact on his health” because his Type 1 diabetes is “difficult to stabilize, and requires close monitoring.” The existence of Theurer s diabetic condition was uncon-troverted, and he currently uses an insulin pump. The sentencing court aslced rhetorically, “Is Mr. Theurer’s diabetes a factor that would require departure? Kansas law is clear it’s not in and of itself. But a defendant’s poor health is related to a defendant’s amenability to incarceration. . . . [I]t’s not a sufficient factor, but it is one that can be considered with others.” In context, then, the sentencing court found the presumptive sentences of imprisonment would adversely affect Theurer’s diabetic condition.
On appeal, the State protests “there was not substantial competent evidence to support the district court’s conclusion that [Theurer] had poor health that should prevent him from serving prison time.” Theurer responds that his diabetes was a “nearly lifelong condition” and it was a “struggle to stabilize it.”
Without deciding whether diabetes may constitute, in an appropriate case, a valid mitigating departure factor, we consider whether there was substantial competent evidence to support the sentencing court’s finding that imprisonment would adversely affect Theurer’s medical condition. At the sentencing hearing, the State called Viola Riggin, die Director of Healthcare for the Kansas Department of Corrections (KDOC), to testify. Riggin said approximately 500 to 800 inmates have diabetes and that several hundred have the same Type 1 diabetes as Theurer. Riggin said 12 of diese inmates use an insulin pump.
Riggin testified that the State contracts with Correct Care Solutions (CCS) to manage inmate healthcare. According to Riggin, since the KDOC is required to “provide healthcare at any and all levels ... to maintain the community standard of care,” an inmate essentially receives the same care as other nonincarcerated citizens. She said, “[I]t’s the same as the first floor of any hospital. We have OB/GYN, oncology, dialysis on site, [endocrinologists, and] family practitioners on site, so we handle anything that we need to.”
Substantial competent evidence did not show Theurer was too ill to be imprisoned or that the KDOC was unable to effectively treat his diabetes. Other than Theurer s mere assertion that his diabetic condition would negatively impact him in prison, Theurer, who did not testify, did not offer any evidence demonstrating that his diabetic condition distinguished him from other felony offenders who suffer from very serious health conditions while serving their time in prison.
On tire other hand, the sentencing court’s finding that Theurer’s diabetes adversely affected his amenability to incarceration was directly contradicted by Riggin’s testimony which established that KDOC is fully equipped to provide Theurer with any necessary medical treatment. Moreover, Riggin also testified that in the event the KDOC cannot meet an inmate’s medical needs on site, the inmates are “taken to outside specialists in the community”
We conclude tire sentencing court’s finding that imprisonment would adversely affect Theurer’s diabetic condition was not supported by substantial competent evidence and, therefore, should not have been considered as a mitigating factor in this case. As a result, the sentencing court erred by exercising its discretion based on an error of fact. See State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011) cert. denied 132 S. Ct. 1594 (2012).
Lack of Criminal History
It is uncontroverted that Theurer’s criminal histoiy showed no prior convictions or juvenile adjudications. As a result, for sentencing purposes, Theurer was assigned a criminal histoiy score of I, the least serious classification under the RKSGA. See K.S.A. 2013 Supp. 21-6809. But the sentencing judge found that Theu-rer’s lack of a criminal record also should be considered a mitigating factor in the totality of circumstances justifying departure:
“[Theurer] has no prior criminal history. There is not only a lack of felony convictions, but there is, in fact, no prior misdemeanor convictions, and there is no evidence that he has ever broken the law before. The State in their response correctly argues that since Mr. Theurer’s Criminal Histoiy Score is an I that his past history has clearly and fairly been taken into account on the criminal sentencing grid. That is correct. But not all history scores I’s are the same. There’s absolutely nothing on Mr. Theurer’s record. And a defendant’s complete lack of criminal contacts can be considered in departing. It’s not a factor by — in and of itself to justify departure, but it can be considered in the overall picture.” (Emphasis added.)
On appeal, the State reprises its argument before the sentencing court, contending Theurer’s “lack of criminal history was already factored in by the sentencing grid” and it is, therefore, inappropriate for consideration as a departure factor. Echoing the sentencing court, Theurer contends substantial competent evidence showed more than just a nonexistent record of convictions or adjudications. According to Theurer, tire evidence showed “a complete lack of evidence of any criminal behavior.” (Emphasis added.)
It is well-settled law that “a defendant’s criminal history cannot be used as justification for a departure sentence when the sentencing guidelines have already taken the defendant’s criminal history into account in determining the presumptive sentence within the grid.” State v. Richardson, 20 Kan. App. 2d 932, 941, 901 P.2d 1 (1995). In this case, Theurer received favorable consideration under the sentencing guidelines for his lack of prior convictions or juvenile adjudications.
The sentencing court, however, may consider facets of the defendant’s criminal history that the guidelines do not factor into the calculation of the defendant’s criminal history score. 20 Kan. App. 2d at 941. For example, in Richardson, the sentencing court found that, depending on the facts of the case, the lengthy period of time that elapses since a defendant’s last felony conviction may provide a substantial and compelling reason for a departure because such a factor ventures “beyond the type and number of offenses” in the defendant’s criminal history. 20 Kan. App. 2d at 941.
The evidence before the sentencing court in this case, however, did not show a “complete lack of evidence of any criminal behavior.” (Emphasis added.) Substantial and compelling evidence was to the contrary. According to the Pawnee Mental Health Services drug and alcohol evaluation, Theurer admitted that he started drinking alcohol at the age of 17. This was a violation of Kansas law. See K.S.A. 2013 Supp. 41-727 (“[N]o person under 21 years of age shall possess, consume, obtain, purchase or attempt to obtain or purchase alcoholic liquor or cereal malt beverage except as authorized by law.”)- Theurer reported that he stopped drinking at the age of 24. Thus, by his own admission, Theurer was illegally drinking alcoholic or cereal malt beverages 4 years prior to reaching the legal drinking age in Kansas.
We do not find substantial competent evidence to support the sentencing court’s finding that “there is no evidence [Theurer] has ever broken the law before” or that his criminal history was “beyond the type and number of offenses” already incorporated into his criminal history score. See Richardson, 20 Kan. App. 2d at 941. As a result, this reason should not have been considered a mitigating factor by the sentencing court. The sentencing court erred by exercising its discretion based on an error of fact. See Ward, 292 Kan. 541, Syl. ¶ 3.
Threat to Public Safety
At the sentencing hearing, the judge stated, “I think the Court can find that Mr. Theurer is not a threat to public safety, that he accepts his responsibility, and that it’s doubtful he would present a threat to public safety in tire future based on the LSI-R and the Pawnee report.” On appeal, citing much of the evidence presented at the sentencing hearing, Theurer argues this evidence “demonstrated substantial. . . support for the [sentencing] court’s finding that this defendant is no threat to society.”
At the outset, a defendant’s lack of danger to the public may constitute a valid mitigating factor in a sentencing court’s decision to impose departure sentences. See State v. Bird, 298 Kan. 393, 400, 312 P.3d 1265 (2013); State v. Murphy, 270 Kan. 804, 807-09. 19 P.3d 80 (2001), overruled on other grounds by State v. Martin, 285 Kan. 735, 175 P.3d 832 (2008).
Theurer supports his argument, in part, by quoting from character reference letters, which in numerous instances extolled his “propensity for public speaking,” his potential benefit to society, his academic abilities, his supportive family, and personal qualities. Theurer cites another letter which “explained that only one or two students per year at most have undertaken to obtain both the veterinary degree and the Ph.D. degree simultaneously, which path Mr. Theurer has pursued in order to be an effective leader in beef cattle veterinary medicine.” In sum, Theurer argues these letters demonstrate his “ability to do great things for humanity.”
We are persuaded this evidence did not sufficiently support the specific factor at issue. Young and Stanley were not killed because Theurer is well-educated and a captivating speaker, shows promise in veterinary medicine, or has family support. Young and Stanley were killed because, despite all of these noteworthy qualities and Theurer s “ability to do great things for humanity,” Theurer drove recklessly at a high speed going the wrong way on a highway while extremely intoxicated. That is the particular threat to public safety at issue here.
Most relevant and probative of the factor of whether Theurer is a threat to public safety are the nature of the crimes of conviction and evidence relating to Theurer s excessive use of alcohol which played a critical role in the involuntary manslaughter deaths of Young and Stanley.
Prior to sentencing, Theurer was referred by his defense counsel to the Pawnee Mental Health Service for an alcohol and drug evaluation. Robert Wisdom conducted a 90-minute evaluation of Theu-rer. The results of his evaluation were reported in a three-page document provided to the sentencing court.
In particular, the report stated that following the collision Theu-rer completed a “32 hour on line ‘alcohol class’ suggested by his attorney.” Under the category “Alcohol/Drug History” was stated:
“[Theurer r]eports he [first] consumed alcohol at age 17 and most recently drank at the end of January, 2013. Reports his usual drinking pattern prior to his stopping consisted of having 4-6 beers or drinks on a iceekend night unth friends 2-3 times a month. Admits he has had alcohol related memory blackouts on a couple of occasions, but denies any history of withdrawal. He denies any history of illegal drug use.” (Emphasis added.)
As part of the evaluation, Theurer was asked to complete the Substance Abuse Subtle Screening Inventory (SASSI). This test is described as “an objective measure designed to differentiate substance abusers from non-abusers.” The SASSI profile indicated a “ ‘low probability’ ” that Theurer had a substance dependence disorder.
Theurer also completed the Michigan Alcoholism Screening Test (MAST), which is described as “a 22-item questionnaire designed to provide a rapid and effective screening for lifetime alcohol-related problems and alcoholism.” Theurer scored a 3. According to the MAST, “Scores between 3-5 suggest early or middle problem alcohol use.” With regard to this test result, Wisdom remarked: “Testing suggests possible early problem drinker, but this score is influenced by his legal situation.” No explanation for Wisdom’s comment was provided to the sentencing court.
Wisdom gave an Axis I primary diagnosis of “alcohol abuse, early full remission” and a secondary diagnostic impression of “Adj disord mixed anxiety, depress” which we assume to be an adjustment disorder with mixed anxiety and depression.
Wisdom recommended Theurer receive outpatient counseling to help him “establish a sober lifestyle and discuss options for sober socializing” and that Theurer “abstain from alcohol or any illegal drug use.” The evaluator provided the following prognosis: “Considering that Mr. Theurer denies that he has consumed alcohol for several months and feels remorse for the DUI fatalities, the prognosis is generally good that [Theurer] will not be driving after drinking in the foreseeable future.” Of note, Wisdom did not mention what importance, if any, tire test results had in the formulation of his prognostication.
Was there substantial competent evidence that Theurer is not a threat to public safety? The answer to that question begins with the events of May 13-14, 2012. Theurer was convicted of two counts of involuntary manslaughter. It is an understatement to observe that, by statutory definition, the crime of involuntary manslaughter is violent, given that it results in the loss of human life. This factual context sharply contrasts with cases like Bird, where the “nonviolent nature” of the crime of conviction (cocaine possession) supported a finding that the defendant posed no threat to society. Bird, 298 Kan. at 400.
Next, it is apparent that Theurer’s potential to threaten public safety is inextricably linked to his excessive consumption of alcohol. Although, to date, Theurer has only admitted to drinking two beers during the several hours he was at the Mustang Gentlemen’s Club, within 2 hours after the collision he had a blood-alcohol level of .19. This test result is more than twice the legal limit for alcohol consumption while driving. See K.S.A. 2011 Supp. 8-1567(a)(2). Obviously, this was a very high level of intoxication.
While Theurer has portrayed that evening as an uncharacteristic, single lapse of judgment, the evidence shows that Theurer has a notable history of underage drinking prior to reaching age 21. Similar to the evening of the collision, Theurer admitted he would occasionally drink excessively, four to six beers or mixed drinks in an evening. While periodic, this was not inconsequential drinking of alcoholic beverages. Of special concern, and further corroboration of Theurer s custom to excessively drink alcohol off and on, was evidence that Theurer experienced “alcohol related memory blackouts on a couple of occasions” prior to the collision. Moreover, according to Theurer, he only stopped drinking in January 2013. Given liliat Young and Stanley were killed on May 14, 2012, as a result of Theureris highly intoxicated condition, the evidence was uncontroverted that more than 6 months after the victims’ deaths, Theurer had continued his practice of drinking alcoholic beverages.
In light of this evidence, including the deadly nature of the crimes Theurer committed, we find the two conflicting alcohol evaluation results do not provide substantial competent evidence that Theurer is not a danger to public safety. While the SASSI profile indicated a “low probability” that Theurer had a substance dependence disorder, the MAST test, designed to screen for lifetime alcohol abuse and alcoholism, indicated that Theurer exhibited “early or middle problem alcohol use.” These inconsistent test results, given the uncontroverted histoiy of Theurer’s episodic excessive alcohol consumption, provide scant support for the proposition that Theurer does not pose a risk to public safety based on the serious consequences of driving while intoxicated.
There was clearly some threat to public safety, which the sentencing judge tacitly acknowledged in his concluding words to Theurer:
“I hope that you can completely abstain from the use of alcohol. I hope that you never touch a drop of alcohol again. I hope that you can lead a life that’s alcohol free and set the example for everybody else out there, that you don’t need alcohol. And if you do this, tiren that is what I hope. And if you don’t, then you’ll make a fool out of the whole system.”
We conclude the record, considered as a whole, does not provide substantial competent evidence to support the sentencing court’s factual finding that Theurer was not a threat to public safety. As a result, this reason should not have been considered a mitigating factor. The sentencing court erred by basing its discretion on an error of fact. See Ward, 292 Kan. 541, Syl. ¶ 3.
Acceptance of Responsibility
The sentencing court found that Theurer “expressed remorse” as proof that he had accepted responsibility for his criminal conduct. On appeal, Theurer argues “[t]here is substantial competent evidence of record to show that the defendant accepted responsibility for his crimes, including his statement to the court at sentencing and his no contest plea[s].”
A defendant’s acceptance of responsibility may be a mitigating factor in support of a departure sentence. Bird, 298 Kan. at 398-99.
We question whether Theurer’s no contest pleas are proof of his acceptance of responsibility. These pleas were “a formal declaration that the defendant does not contest the charge.” K.S.A. 22-3209(2). Thus, a no contest plea “is a plea where the defendant does not expressly admit his or her guilt to the charge.” (Emphasis added.) State v. Case, 289 Kan. 457, Syl. ¶ 3, 213 P.3d 429 (2009). Indeed, by pleading no contest Theurer conspicuously avoided admitting his legal responsibility for the deaths of Young and Stanley. Moreover, Theurer obtained a very favorable outcome because of his no contest pleas, which included pleading to only two of the charged crimes, obtaining in return dismissal of the aggravated battery'charges for the serious injuries he caused his passengers, immunity from prosecution for any other charges, and a recommendation of concurrent sentences.
Theurer also points to his personal statement at sentencing. We only have the written record of sentencing, and appellate courts generally do not pass on credibility issues. See State v. Jones, 295 Kan. 1050, 1057-58, 288 P.3d 140 (2012). However, because Theu-rer has directed us to his statement, we will consider his words.
Theurer stated remorse for his actions and their consequences, but he did not dwell on expressions of personal fault for causing the deaths of Stanley and Young. He was sorry for “the actions that led to the tragic accident,” regretted “what occurred during those early morning hours,” and hoped to have “the opportunity to . . . explain the nightmare that I have been through” and its consequences. When Theurer did admit fault, it was for a “tragic, dumb mistake,” or a “lapse of judgment,” Theurer’s statements to the sentencing court are also noteworthy because they mirrored his three-sentence response in the PSI questionnaire when he was asked to provide his version of the crimes. Theurer wrote: “I made a mistake. I consumed alcohol and drove my vehicle. I am truly sony for all the consequences.”
Theurer s oral and written statements accepting responsibility are remarkable for their brevity and minimization. His nondescript statements also did not include any recantation or clarification of his exculpatory statement to Officer Sanders that during almost 7 hours between the time he arrived at the Mustang Gentlemen s Club and the collision that killed Young and Stanley, he only drank two beers. Moreover, our review of the record on appeal reveals that Theurer has not admitted that he drank to excess, was intoxicated, or drove recklessly at the time he caused the collision which killed Young and Stanley.
Suffice it to say, we discern a marked difference between this record and the record in Bird, where our Supreme Court found substantial competent evidence that a defendant had accepted responsibility:
“Contrary to the State’s argument, the record includes evidence of acceptance of responsibility with respect to tire controlling drug crime on which the district court departed. Specifically, the record shows that Bird pled guilty to the controlling crime of cocaine possession, saving the State and its witnesses significant trial preparation, time, and expense. Further, at the sentencing hearing, when questioned under oath by defense counsel, Bird acknowledged that the baggie containing cocaine residue that led to his possession conviction was found in his home and that he had prior drug convictions and problems, and he went so far as to say that he was’surely more than guilty.’ Bird was directly asked by defense counsel, ‘You don’t deny your responsibility?’ He replied, ‘No doubt.’ ” 298 Kan. at 399-400.
Unlike the defendant in Bird, Theurer did not formally admit his guilt to tire underlying facts in court. His expressions of remorse, given the overwhelming evidence of his guilt and the harm which resulted from the deaths of Young and Stanley seem muted by comparison. Still, the sentencing judge was in the best position to evaluate Theurer s credibility and he found, “I think there is no doubt in anybody’s mind that Mr. Theurer is remorseful.”
We conclude there was substantial and competent evidence to support the sentencing court’s finding that Theurer accepted responsibility for his criminal conduct. Whether this individual factor, together with the other factors relied on by the sentencing court, provided sufficient grounds to impose durational departure sentences rather than imprisonment is considered later.
Amenability to Rehabilitation
In the district court, Theurer asserted he was highly amenable to rehabilitation because he had demonstrated “an increased understanding and awareness of the nature and consequences of his actions,” as shown by his completion of a 32-hour on-line drug and alcohol awareness course and a 90-minute alcohol and drug evaluation. Theurer further explained that as part of his rehabilitation efforts, he had attempted, “on numerous occasions,” to inform others “about the terrible mistake he made the night of the accident.”
The sentencing court found that Theurer’s rehabilitation efforts were, under the totality of the circumstances, a substantial and compelling reason to impose departure sentences. The sentencing court explained:
“Defendant’s rehabilitative efforts: It was mentioned that Mr. Theurer has— it’s been a year since this accident occurred, and he’s not been in trouble. He’s gone to school, worked on his degree, and preparing for this day, and has presented to the Court through his attorney a proposal that during- — -instead of being sitting in prison for the next three years — approximately three years — that he go out into society to high schools, to colleges, universities, to whoever, and tell them his story, to educate them, and . . . put a face with the person.
“. . . Mr. Theurer would be, and it’s been proposed, an excellent person to speak. People have described him in the letters as an ‘impactful speaker’ with the ‘ability to capture an audience.’ He’s ‘well-spoken.’ He will ‘be an advocate against drunk driving’ if allowed to speak. ‘When he speaks, people listen.’ ”
A defendant’s amenability to rehabilitation, while not a substantial and compelling reason to depart from the presumptive guidelines sentence by itself, may be considered in the overall picture; in other words, a sentencing court may properly consider such evidence in the totality of circumstances if other factors warrant a departure. State v. Ussery, 34 Kan. App. 2d 250, 263, 116 P.3d 735, rev. denied 280 Kan. 991 (2005); see also Murphy, 270 Kan. at 806-09, (upholding departure where defendant had been accepted in Labette Correctional Conservation Camp, noted as having reputation for “positive results”).
Nevertheless, while rehabilitation efforts can serve as a potential factor for departure, these efforts should be geared towards addressing the defendant’s behavior that caused the crime for which the defendant was convicted. See State v. Chrisco, 26 Kan. App. 2d 816, 824, 995 P.2d 401 (1999); State v. Alaga, No. 91,360, 2004 WL 2796407, at *2-3 (Kan. App. 2004) (unpublished opinion).
While Theurer did complete a 32-hour on-line alcohol and drug class suggested by his attorney and an alcohol and drug evaluation, the sentencing court’s rehabilitation findings were primarily focused on Theurer’s potential, due to his speaking ability, to persuade others to avoid the criminal conduct that led to his convictions. It is unclear and unstated how Theurer’s potential to speak to others about the dangers of driving while intoxicated exemplifies his amenability to personal rehabilitation.
With this caveat, however, we are persuaded there was some evidence to support that Theurer undertook two basic rehabilitative efforts prior to sentencing. We will consider the significance of this individual factor, together with the other factors relied on by the sentencing court later.
Good Grades, Good Character, Character Reference Letters, and Supportive Family
On appeal, Theurer mentions but does not specifically defend the sentencing court’s findings on the remaining reasons for departure, which include good grades, good character, character ref erence letters, and a supportive family. On the other hand, the State argues “these factors have absolutely nothing to do with tire facts and circumstances within the case.”
With regard to Theurer s good grades, the transcripts show Theurer maintained a 4.0 GPA through high school and that he achieved excellent grades during his first 4 years at KSU. In the 2011-2012 academic year, however, Theurer earned seven C’s, the first such grades shown. Theurer earned a 2.3 GPA in the fall semester of 2011 and a 2.7 GPA in the spring semester of 2012, both before his commission of the crimes, and a 2.5 GPA in the fall semester of 2012, after the crimes were committed. Nothing in the record explains the unusual and significant decline in Theu-rer s grades in die months leading up to die fatal events of May 14, 2012. Considered over several years, however, there was evidence that Theurer had a history of achieving good grades.
Regarding Theurer s good character, the evidence primarily consisted of character reference letters. The State responds: “The Defendant’s opportunity filled and affluent life within a well-connected family is evident in the Defendant’s 100 plus letters of recommendation. . . . The State contends that a defendant with less opportunities, financial support, and socioeconomic status would not have had access to the letters of recommendation.”
We will not second-guess the sentencing court’s evaluation of Theurer’s character based on the letters submitted to the sentencing court. The sentencing court characterized the letters as “good,” and diere is evidence supporting that factual finding.
The sentencing court also found that Theurer has a supportive family, and the State does not dispute that fact. We conclude the sentencing court’s finding on this factor was supported by substantial evidence. Our Supreme Court has indicated, however, that family support may only qualify as a substantial and compelling factor when combined with other mitigating factors favoring a departure. See State v. Spencer, 291 Kan. 796, 814-16, 248 P.3d 256 (2011).
Whether There Were Substantial and Compelling Reasons to Impose Departure Sentences in this Involuntary Mansalaughter Case
The sentencing court found that none of the individual reasons or factors it relied on was sufficient, by itself, to warrant the imposition of departure sentences. The sentencing court concluded that the totality of the reasons, however, showed that Theurer was an exceptional person deserving of dispositional departure sentences. As a result, we next consider whether — setting aside those factors which were invalid or for which there was no substantial competent evidence — the sentencing court’s “reasons collectively constitute a substantial and compelling basis for departure.” State v. Bird, 298 Kan. 393, 398, 312 P.3d 1265 (2013). In other words: Does Theurer’s acceptance of responsibility, amenability to rehabilitation, good grades, good character, character reference letters, and supportive family collectively constitute a substantial and compelling basis for imposing dispositional departure sentences in this involuntaiy manslaughter case?
We begin our analysis mindful of our Supreme Court’s longtime admonition: “ ‘ “Reasons which may in one case justify departure may not in all cases justify a departure.’ [Citation omitted.] Rather, we must evaluate the offense of conviction, the defendant’s criminal history, and the departure reason stated, as well as the purposes and principles of foe Kansas Sentencing Guidelines.’ ” [Citations omitted].” State v. Martin, 285 Kan. 735, 744, 175 P.3d 832 (2008). We will evaluate foe propriety of foe sentencing court’s dispositional departure decision in this case in accordance with our Supreme Court’s four-part guideline.
First, foe offenses of conviction were two counts of involuntaiy manslaughter while driving under foe influence of alcohol, a severity level 4 person felony, in violation of K.S.A. 2013 Supp. 21-5405(a)(3); see K.S.A. 2013 Supp. 8-1567(a)(2). As mentioned earlier, these are not only crimes of violence, but the violence resulted in foe senseless deaths of two innocent victims, Young and Stanley. The killing of these two individuals in foe prime of their lives is undeniably a grievous harm. The significance of this harm is only heightened in this case, however, when considering that Young and Stanley were each parents to two young children. The handwritten letters and testimony of Young’s and Stanley’s family members eloquently expressed the unquestionable misery and loss they experienced as a direct result of Theurer’s criminal conduct.
The sentencing court was obligated to give appropriate consideration to the evidence presented by the families of Young and Stanley in this sentencing departure matter. Our Supreme Court has noted that Article 15, § 15 of the Kansas Constitution provides that crime victims have a right “ 'to be heard at sentencing.’ ” State v. Hines, 296 Kan. 608, 616, 294 P.3d 270 (2013). With particular regard to sentencing departure hearings:
“K.S.A. 21-4718(a)(1) [now K.S.A. 2013 Supp. 21-6817(a)(1)] provides that‘[t]he victim of a crime or the victim’s family shall be notified of the right to be present at the healing.’ This statute further requires drat ‘[t]he court shall review the victim impact statement.’ Finally, K.S.A. 21-4716(d) [now K.S.A. 2013 Supp. 21-6815(d)] states:
“ ‘In determining aggravated or mitigating circumstances, the court shall consider:
(1) Any evidence received during the proceeding;
(2) die presentence report;
(4) any other evidence relevant to such aggravating or mitigating circumstances tiiat the court finds trustworthy and reliable.’ ” (Emphasis added.) 296 Kan. at 617.
The Kansas Constitution, implementing statutes, and our Supreme Court’s caselaw provide victims and their families the right in sentencing matters to inform the sentencing court of the harmful impact caused by the defendant’s criminal conduct. Moreover, with specific regard to a sentencing court’s departure decision, the court shall consider this evidence in exercising its judicial discretion. See K.S.A. 2013 Supp. 21-6815(d); K.S.A. 2013 Supp. 21-6817(a)(1)-(4).
In the present case, the sentencing court personally heard from the victims’ family members and reviewed their written victim impact statements. Without exception, all of the statements from the victims’ families emphasized the need for Theurer to serve a prison sentence as punishment for his crimes. Especially given the un deniable, life-altering consequences of Theurer’s criminal conduct, we believe the unanimous request by the family members of Young and Stanley that Theurer receive presumptive sentences of imprisonment deserved careful consideration in the sentencing court’s decision whether to grant departure sentences.
Continuing with our evaluation of the crimes of conviction, while these crimes were, by their nature, violent and deadly, a defendant’s culpability may vary widely depending on the facts of the specific case. Here, Theurer’s culpability was especially egregious. Theurer spent about 6 hours at the Mustang Gentlemen’s Club during which time he claimed that he only drank two beers. Theurer told police he stopped drinking about 30 minutes prior to leaving Junction City to drive to Manhattan, about a 20 mile trip. Yet, at about 4:30 a.m. — 1 hour and 45 minutes after the collision which occurred at about 2:45 a.m. — Theurer’s blood-alcohol level was more than two times the legal limit permitted under Kansas law. Theurer’s truck also contained cans of beer and a bottle of bourbon in the passenger compartment. In short, there was overwhelming evidence that Theurer was very intoxicated as he traveled a considerable distance on Kansas roadways shortly before die fatal collision.
It is also uncontroverted that Theurer’s intoxication significantly impaired his ability to safely drive a motor vehicle. Eyewitnesses reported Theurer’s vehicle was swerving, traveling erratically, and speeding excessively in a construction zone shortly before the collision. One motorist’s repeated efforts to alert Theurer that he was driving on the wrong side of the road by flashing his vehicle’s headlights, honking his horn, and waving his arms were totally ignored. Additionally, there was no evidence indicating that Theurer attempted to avoid the head-on collision. In short, the evidence of reckless driving while under the influence of alcohol was overwhelming and uncontroverted.
As part of our evaluation of these two involuntary manslaughter offenses, this case is also unique given that our Supreme Court has, on numerous occasions over the years, recognized the Kansas Legislature’s efforts to punish intoxicated drivers and the harms resulting from them. Miller v. Johnson, 295 Kan. 636, 729, 289 P.3d 1098 (2012) (Johnson, J., concurring in part and dissenting in part) (The legislature “passed tougher driving under the influence laws to try to get the drunks off of Kansas roads.”); Bland v. Scott, 279 Kan. 962, 974, 112 P.3d 941 (2005) (“We are veiy aware that deaths and injuries on our highways caused by intoxicated drivers are a major problem for Kansas and the nation. In recent years, the legislature has increased tire penalties for convictions of driving under the influence in the effort to reduce the carnage.”); Thornton v. Shore, 233 Kan. 737, 753, 666 P.2d 655 (1983) (“Clearly it is strong public policy to remove drunk drivers from Kansas roads.”); State v. Compton, 233 Kan. 690, 699, 664 P.2d 1370 (1983) (“The objective sought to be attained by the legislature is to deter drunken driving and thus reduce the injuries, death and property damage attributable to it by making the penalties for DUI certain and severe.”). Our Supreme Court has repeatedly acknowledged the Kansas Legislature’s long-standing imperative to punish intoxicated drivers in an effort to deter deaths, such as the two which occurred in this case.
In summary, consonant with Martin, we have evaluated the involuntary manslaughter offenses committed by Theurer in this case. We conclude these offenses were, by statutory definition, violent and deadly felony crimes. Given Theurer’s obvious intoxication, his reckless driving, and the killing of two innocent victims, his criminal conduct was especially aggravated. These offenses irreparably harmed the victims’ families who, as a result, opposed any departure from presumptive imprisonment. Finally, the Kansas Legislature has repeatedly and consistently focused its attention on punishing intoxicated drivers due to the dangers they pose on Kansas highways. The particular facts of this involuntary manslaughter case weigh heavily against departing from the presumptive sentences of imprisonment.
Next, in keeping with Martin, we consider Theurer’s criminal history. As discussed earlier, Theurer’s criminal history, which was factored into the RKSGA scoring, resulted in the presumptive guidelines sentences of imprisonment. While it is undisputed that Theurer did not have any prior convictions or adjudications, it is also apparent (and especially relevant to tire crimes of conviction) that prior to committing two counts of involuntary manslaughter, Theurer violated Kansas liquor laws by drinking alcoholic beverages from age 17 until age 21. It is unknown whether Theurer s histoiy of episodic excessive drinking which occasionally resulted in blackouts occurred during this period or later. Regardless, Theu-rer s lack of a formal criminal record prior to the commission of these crimes is unremarkable given his 4 years of illegally consuming alcoholic beverages while he was under age 21. Considering the cause of this double fatality collision, we are persuaded that Theurer s history of underage drinking significantly lessens the weight to be given his lack of a formal criminal record as one basis for justifying his departure sentences.
Next, we address tire third component of the Martin guidelines by collectively reviewing the mitigating factors relied on by the sentencing court to justify imposition of the departure sentences. For reasons detailed earlier, while there was some evidence of Theurer s acceptance of responsibility, there was also evidence to the contrary. In particular, Theurer’s pleas of no contest, his repeated characterization of his crimes as a “mistake” or “lapse of judgment,” and his failure to admit to being intoxicated or even to driving recklessly at the time of tire collision temper the weight that might otherwise have been accorded this mitigating factor.
Similarly, with regard to Theurer’s amenability to rehabilitation, more than 1 year passed after the commission of the crimes until Theurer’s sentencing hearing. During that time, Theurer submitted to a court-ordered 90-minute substance abuse evaluation and viewed an informational Internet course on alcohol abuse. He also claimed he stopped drinking alcohol, but that was not until 6 months after tire collision. Given Theurer’s underage drinking of alcoholic beverages, his tendency to drink very excessively episodically, his occasional blackouts due to drinking, and his obvious intoxication at the time of the crimes, these rehabilitative efforts do not seem overly ambitious. For all of tírese reasons, we are persuaded this factor did not provide a compelling basis for departure in this case.
We understand that Theurer, like many criminal defendants, has a supportive family. His academic record, at least until the year before die commission of these crimes, was excellent. And, unlike many criminal defendants, based on the numerous character reference letters, he also has many friends and acquaintances in the community who are impressed with his academic achievements, speaking ability, and especially his potential to contribute to society in the field of agriculture. The sentencing judge relied on some of these factors in finding that Theurer is “an exceptional person that I find to be an atypical case.” We recognize that good character, family, and community support ordinarily carry some weight as mitigating factors.
Nevertheless, we are convinced these valid mitigating factors for which there was substantial competent evidence, taken together, did not warrant departure sentences in this case. In particular, we believe the sentencing court overlooked important evidence which called into question the significance of the factors related to Theu-rer’s acceptance of responsibility and amenability to rehabilitation in the context of this case. With regard to good character, family, and community support, these factors pale in significance given the aggravated nature of these crimes and the harms which resulted to Young, Stanley, and their families. In summaiy, in a more typical case involving less serious crimes, less culpability, and less deadly consequences, the totality of these mitigating factors might have supported departure sentences. But that is not the case before us.
Departure reasons must be substantial and compelling. As our Supreme Court has instructed:
“In order for a mitigating factor to be substantial, the reason must be real, not imagined, and of substance, not ephemeral. In order to be compelling, die mitigating factor must be one which forces the court, by the facts of the case, to abandon the status quo and to venture beyond the sentence that it would ordinarily impose.” (Emphasis added.) Hines, 296 Kan. 608, Syl. ¶ 5.
Taken together, the valid mitigating factors were not particularly substantial, and they were not compelling because they did not force the sentencing court “by the facts of the case,” see 296 Kan. 608, Syl. ¶ 5, to forsake the presumptive sentences of imprisonment established by the R.KSGA.
Finally, in evaluating the sentencing court’s departure decision, we must consider whether the purposes and principles of the RKSGA justify departure in this case. See Martin, 285 Kan. at 744. As discussed earlier, the sentencing court did not apply these purposes and principles but incorrectly cited and applied K.S.A. 2013 Supp. 21-6601. This mistaken application of law resulted in the sentencing court’s undue emphasis on its view of Theurer as an exceptional person rather tiran considering tire mitigating factors in context with the deplorable facts and circumstances of this case. One of the underlying principles of the sentencing guidelines identified by our Supreme Court is that “sanctions should be imposed based on harm inflicted.” Bird, 298 Kan. at 399. For all of the reasons discussed, the departure sentences granted by the sentencing court were not based on the harm inflicted upon Young, Stanley, and their families.
In conclusion, we hold the sentencing court erred by applying an incorrect legal standard in sentencing, by relying on departure reasons which were not substantial and compelling, and by making findings of mitigating factors not supported by substantial competent evidence. Finally, given the nature of the crimes committed, Theurer’s aggravated culpability in the deaths of two innocent people, and the resulting harm to Young, Stanley, and their families, we conclude the sentencing court’s valid departure factors, considered collectively, did not force the sentencing court to abandon the status quo of presumptive imprisonment in order to justify granting Theurer dispositional departure sentences of probation. See Hines, 296 Kan. 608.
The judgment of the sentencing court is reversed. The sentences are vacated, and the case is remanded to the district court for resentencing. | [
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Stegall, J.:
Jamie Marshall was convicted of raping A.M., a developmentally disabled adult under his care. The State alleged and the jury found a fiduciary relationship between Marshall and A.M. and, as such, Marshall received an enhanced sentence. This is Marshall’s direct appeal claiming: (1) the State committed reversible misconduct during closing arguments; (2) he was denied his due process rights under the Fifth and Sixth Amendments because the State did not allege the aggravating factor of a fiduciary relationship in the criminal complaint; and (3) an Apprendi violation. Because we find that no reversible error occurred below, we affirm.
Facts
A.M. is a developmentally disabled adult with moderate mental retardation. Because of her disabilities, A.M. is not able to live independently. In February 2012, she was living in Caring Hands, a facility that provides care and supervision in a residential setting. On January 28, 2012, A.M. developed a skin rash on her upper inner thigh as a result of an antibiotic she had been taking. A yellow tinted medical cream was being used by Caring Hands to treat the rash. By February 28, 2012, the rash had cleared.
Jamie Marshall was one of the Caring Hands employees charged with A.M.’s care during this time. His job duties entailed transporting the residents to day activities and supervising them in the evening hours, occasionally staying overnight. On the afternoon of February 28, 2012, Marshall arrived to work at the Caring Hands residence where A.M. and two other Caring Hands residents lived. Also staffing the residence that afternoon was Caring Hands employee Emma White. About 5:30 p.m., White left Marshall alone with A.M. and tire other two residents in order to attend a work training event.
During tire morning hours of February 28, Marshall had been engaged in a drawn out argument with his girlfriend, Lindsey Mis-ner, with whom he had a child. Marshall and Misner lived together in an apartment near A.M.’s Caring Hands residence. After White left the Caring Hands residence, Marshall loaded all three of the Caring Hands residents into the Caring Hands van and drove to his apartment to continue his domestic dispute with Misner. Marshall and the residents returned to the Caring Hands residence at about 6 p.m. that evening.
Marshall and the State presented very different versions of what happened next. According to Marshall, after bringing A.M. and the other residents back to the Caring Hands facility, he stepped outside to call Misner. When he went back inside he found A.M. sitting on the corner of her bed with her pants pulled down below her waist. When Marshall told her to pull her pants up, A.M. responded, “It hurts,” and pointed to her genitals. Marshall testified that he was aware of A.M.’s rash and assumed that the rash was causing A.M. discomfort. Marshall then called White and asked when she planned to be back at the Caring Hands residence. According to Marshall, he discussed applying medication to A.M.’s rash; however, White testified that the only subject of the call was how much longer she was going to be away from the residence. Marshall testified that after the call with White he went to the medicine cabinet, retrieved the rash medication, and applied it to A.M.’s “legs and all over the top of her vagina.” Marshall testified that after he applied the medication, A.M. gave him a hug and said thank you.
A.M. also testified at trial. In her testimony, she said, “[H]e poked me in my private area . . . [wjith the poker.” A.M. testified that Marshall used a pink lotion, not the yellow tinted cream, and that when Marshall touched her it made her feel sad. A.M. then clarified that Marshall poked her on the inside of her body. A cup and pen were used to demonstrate the difference between inside and outside due to A.M.’s significant verbal and conceptual disabilities.
Following the incident, Marshall again drove to his apartment in the Caring Hands van. This time, he took only A.M. with him, leaving the other two residents unattended. Misner testified that when he arrived, Marshall was acting agitated and angry and began to demand money. At this time, a friend of Misner’s was present in the apartment. Misner’s friend became concerned due to the escalating nature of the argument and called the police, at which point Marshall left the apartment. During this time, A.M. never left the van.
Soon thereafter, Marshall arrived with A.M. back at the Caring Hands residence. In the meantime, another Caring Hands employee, Amanda Mathews, had come to the residence. Mathews testified that after dropping A.M. off, Marshall told her he had an emergency and left in a rush. Marshall then returned to his apartment. On arriving, Marshall found Officer Jason Goddard at the scene in response to the domestic disturbance call. Goddard testified that Marshall and Misner were arguing over money in a savings account that Marshall felt was his. Marshall stated that he needed the money for gas. Marshall was eventually allowed to leave the apartment.
Back at the Caring Hands residence, Mathews noticed that A.M. was wearing pajama pants when Marshall dropped her off, which struck Mathews as unusual. Similarly, prior to A.M.’s return, Mathews had noticed that A.M.’s service dog was at the residence without A.M, which was also unusual. Later that evening, while A.M. was in the restroom, she began to call for Mathews. Mathews asked A.M. what was wrong, and A.M. said that she was hurt and pointed to her genitals. Mathews asked why she was hurting, and A.M. responded, “Jamie, Jamie,” and began to cry. Mathews then took A.M. to the hospital.
At the hospital, Officer Brandon Faber responded to tire reported rape. Faber testified that he spoke to A.M. at tire hospital and she told him that a person named Jamie put too much lotion on her genitals and hurt her. Jennifer Johnson, the program coordinator for tire Forensic Assessment Consultation and Treatment Program, testified that she examined A.M. on February 28, 2012. Johnson testified that A.M. told her that Marshall had smeared lotion on her, hurt her, and she was upset that Marshall had not apologized for hurting her. A.M. told Johnson that Marshall was the one who took her pants off. Johnson’s examination of A.M. revealed a fresh laceration on A.M.’s fossa navicularis, an injury that was consistent with penetration of the vagina. Johnson collected DNA swabs and A.M.’s clothing for DNA testing.
The next day Jennifer Coughlin, a forensic interviewer employed by Sunflower House, spoke to A.M. During that interview A.M. told Coughlin that Marshall had put too much lotion on A.M. with his hands, that it hurt, that it made her real sad, and that he did not say he was sorry. A.M. stated that Marshall had used a pink lotion, that Marshall had touched her inside her body, and that she had asked Marshall to stop.
Meanwhile, after leaving his apartment following the domestic disturbance call, Marshall went to his uncle’s home in Overland Park, Kansas, where he stayed the night. Marshall testified that around midnight he received a call from the director of Caring Hands to inform him that there were suspicions that Marshall had raped A.M. The next morning, Marshall left his uncle’s house and drove to his mothers home in Connecticut. According to Marshall, he had a previously arranged visit to Connecticut planned and he wanted to take his car to his mothers house so Misner could not sell it. However, Marshall told Misner that he was headed west, telling her at various times that he was going to Salina and Arizona.
Marshall eluded law enforcement for 2 weeks. He was eventually tracked down in Connecticut, arrested, and transported back to Kansas in the middle of March. While he was in jail in Johnson County, Marshall met and talked with fellow inmate Jeremy Val-adez. Valadez testified that Marshall had admitted, over the course of several conversations, that Marshall had used his fingers to penetrate A.M. Valadez testified that Marshall said he fled to Connecticut because of tire charges against him and never said anything about treating A.M.’s rash with medical ointment.
Additional evidence presented by the State included DNA evidence showing that Marshall’s DNA matched the profile of the DNA on genital swabs taken from A.M. on the night of February 28 and recordings of phone conversations Marshall had with Mis-ner while he was in jail indicating that he drove to Connecticut because he was confused and he wanted to get away.
The jury convicted Marshall of one count of rape and returned a unanimous finding that there had been a fiduciary relationship between Marshall and A.M. at the time of the rape. At sentencing, the State’s upward departure motion (which had been filed prior to trial alleging the fiduciary relationship) was granted and Marshall was sentenced to 300 months in prison.
Marshall timely appeals.
Prosecutorial Misconduct
Appellate review of an allegation of prosecutorial misconduct involving improper closing arguments requires a two-step analysis. First, we must determine whether tire prosecutor’s comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, if misconduct is found, we must determine whether the improper comments constitute plain error; that is, whether the statements prejudiced the jury against the defend ant and denied the defendant a fair trial. State v. Burnett, 293 Kan. 840, 850, 270 P.3d 1115 (2012).
Marshall alleges four different categories of misconduct in the prosecutor s closing argument. He claims that the prosecutor: (1) gave her personal opinion of Marshall’s guilt; (2) improperly commented on Marshall’s postarrest silence in violation of Doyle v. Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d. 91 (1976); (3) inflamed the passions of the jury; and (4) crafted a speculative narrative of the events that included facts not in evidence. We will examine each of these claims in turn.
Personal Opinion of Guilt
“Prosecutors must not state a personal opinion regarding the ultimate guilt or innocence of the defendant.” State v. Corbett, 281 Kan. 294, 315, 130 P.3d 1179 (2006). Marshall contends that the prosecutor twice gave her personal opinion of Marshall’s guilt. First, at the conclusion of her closing argument when she stated: “Ladies and Gentlemen, something happened on February 28th of 2012; and that something was rape.” Second, when she wrapped up the rebuttal portion of closing arguments by again saying: “Jamie Marshall raped [A.M.] That’s the something that happened.”
Marshall relies on State v. Peppers, 294 Kan. 377, 276 P.3d 148 (2012). In Peppers, the following comment in closing was deemed to fall outside the wide latitude afforded a prosecutor when discussing the evidence: “I’m going to ask that you find this defendant, Antwan Peppers, guilty of murder in the first degree and guilty of attempted murder in the first degree. Why? Because he did it.” 294 Kan. at 399. Our Supreme Court held that while a prosecutor is permitted to state that the defendant committed the crime, such statements must be accompanied by language directing the jury to consider the evidence supporting the State’s charge. This context renders such statements “merely directional and not an expression of the prosecutor’s personal opinion.” 294 Kan. at 399-400.
The State argues that the prosecutor’s statements in this case were so couched in a discussion of the evidence as to have been merely directional. The State points to State v. Bennington, 293 Kan. 503, 264 P.3d 440 (2011), as an analogous case. There, the prosecutor made the following argument: “I want to stand here right now and ask you, don’t find him guilty of attempted rape. Find him guilty of rape. That’s what he did.” 293 Kan. at 530. The Bennington court held:
“Viewed in isolation, ‘That’s what he did,’ sounds like a personal opinion. But when placed in context, this statement is not outside the wide latitude allowed attorneys during argument. The statement was made during the prosecutor’s explanation of the elements of attempted rape. . . .
“. . . A review of the entire statement shows that the prosecutor was accurately describing the evidence and relating it to the elements of attempted rape versus rape, and the statement, ‘That’s what he did,’ was relating the facts to those elements. A prosecutor has wide latitude to craft arguments that include reasonable inferences to be drawn from the evidence.” 293 Kan. at 530-31.
During one of the recorded phone conversations between Marshall and Misner that was played to the jury, Misner can be heard telling Marshall that “something happened” on the night of February 28. The prosecutor drew the motif of her closing argument from Misner’s statement. She began by saying, “Something happened, something happened on February 28th of 2012.” The prosecutor proceeded to thoroughly argue the evidence in support of the State’s charge, including A.M.’s statements; the physical evidence, including DNA evidence; Valadez’s testimony regarding Marshall’s incriminating statements; and the evidence undermining Marshall’s version of events. The prosecutor further correctly stated and clearly explained the State’s burden of proof and the elements of the crime. At the conclusion of this recitation, the prosecutor echoed her earlier statement by saying, “Ladies and Gentlemen, something happened on February 28th of 2012, and that something was rape.”
The statements Marshall claims were impermissible prosecuto-rial expressions of personal belief were sufficiently couched in a discussion of the evidence to be merely directional. As such, they do not fall outside the wide latitude a prosecutor is afforded to craft arguments drawn from the evidence.
The Alleged Doyle Violation
Marshall next argues that the State committed a Doyle violation by allegedly arguing guilt based on his postarrest silence.
“A Doyle violation occurs when the State attempts to impeach a defendant’s credibility at trial by arguing or by introducing evidence that the defendant did not avail himself or herself of the first opportunity to clear his or her name when confronted by police officers but instead invoked his or her constitutional right to remain silent.” State v. Edwards, 264 Kan. 177, 195, 955 P.2d 1276 (1998).
Marshall points to the following passage in the State’s closing argument:
“First, tire defendant tries to tell [Valadez] this is some big conspiracy, Caring Hands owes me money, they’re making all this up. Then he says, State ain’t got no evidence, there wasn’t enough penetration. . . . He gets more comfortable [with] Mr. Valadez and eventually says, T used my hands. I used my hands.’
“. . . The defendant never mentioned anything about a medically necessaiy procedure that he had to perform on [A.M.]. In fact, the defendant doesn’t mention that to anyone. That doesn’t arise until after all of the police reports are in and the DNA testing is complete. Then he realizes, uh-oh, DNA is back. The State does have evidence.”
Rather than a comment on Marshall’s silence, it is apparent that here the State is using the incriminating statements made to Val-adez to impeach Marshall’s claim that he performed a medically necessaiy procedure on A.M. Both versions of the events cannot be true. Drawing the jury’s attention to this fact is not a Doyle violation. When a defendant takes the stand, “his credibility may be impeached and his testimony assailed like that of any other witness.” Brown v. U.S., 356 U.S. 148, 154, 78 S. Ct. 622, 2 L. Ed. 2d 589 (1958).
Likewise, Doyle does not prohibit a prosecutor from impeaching a defendant at trial based on his or her prearrest silence. State v. Tully, 293 Kan. 176, 188, 262 P.3d 314 (2011). The State had elicited testimony from Marshall that when he spoke to the director of Caring Hands and other Caring Hands employees following the incident, he did not claim to any of them that he had merely applied medical cream to A.M.’s rash. These conversations occurred prior to Marshall’s arrest. The context makes it clear that tírese are the conversations tire State was referring to when the prosecutor said, “[T]he defendant doesn’t mention that to anyone.” The State did not commit a Doyle violation.
Inflaming the Passions of the Jury
Marshall next contends the State improperly inflamed the passions of the jury when the prosecutor argued that Marshall “hurt [A.M.] and he didn’t say, Tm sorry.’ [A.M.] lets him know she’s upset, she’s really upset.” Marshall acknowledges that A.M. did indicate that she was upset that Marshall did not apologize for hurting her. Marshall argues, however, that the only possible reason for the State to draw the jury’s attention to this piece of evidence was to elicit sympathy for A.M. and outrage toward Marshall. We are not convinced.
Rather, the prosecutor was reciting a statement directly from the evidence which demonstrated that A.M., a developmentally disabled adult with limited articulation capacity, was genuinely upset and disturbed by what had happened to her — important evidence for the jury to consider. Further, the prosecutor highlighted this portion of the trial testimony to draw the inference that A.M.’s disturbed emotional state triggered Marshall’s ultimate efforts to flee the state — again, a permissible inference from the evidence. The State did not inflame the passions of the jury.
Creating a Speculative Narrative Lacking Evidentiary Basis
For his last claim of misconduct, Marshall contends that the State impermissibly created a speculative narrative lacking an evi-dentiary basis. Marshall cites to the following portions of the prosecutor’s closing argument:
“The defendant got [A.M.] alone in her room where it’s just him and [A.M.], the developmentally disabled girl who he doesn’t believe will ever be able to articulate what happened.
“He gets her on her bed. He gets pink lotion,.. . . not this medicated cream that was used to treat the rash weeks earlier. He gets pink lotion. He uses it as a lubricant and he penetrates [A.M.j’s genitals. Unexpectedly, [A.M.] tells him to stop. He didn’t stop, though, he continued to do it. He penetrated her genitals causing an injury. You saw that injury in the State’s exhibits. He hurt [A.M.] and he didn’t say, Tm sorry.’
“[A.M.] lets him know she’s upset, she’s really upset. And he realizes that [A.M.] is going to be able to say what happened. So what does the defendant do? He calls Emma [White], He needs to figure out when the other caretakers are getting back. You heard Ms. White’s testimony, he called me and said what time are we going to get back. When he gets an iffy response from Miss White, I don’t know when we’ll be back, he realizes he can’t risk leaving [A.M.] there while he gets money to get out of town. He can’t risk that.
“. . . There are certainly a lot of things that we all would like to know. What exactly did he poke you with? Can’t get that out of her. His poker. Can’t get that out of her because she didn’t see it.”
Marshall argues that the prosecutor improperly argued facts not in evidence by creating an “imaginaiy script” describing both Marshall’s thoughts and what A.M. didn’t see.
In closing arguments a prosecutor must confine his or her comments to matters in evidence. State v. Morris, 40 Kan. App. 2d 769, 791, 196 P.3d 422 (2008). In Morris, this court held that it is improper for a prosecutor to speculate as to the internal thought processes of witnesses. Morris, 40 Kan. App. 2d at 791. However, prosecutors are given wide latitude to craft arguments that include inferences that can reasonably be drawn from the evidence. State v. Pabst, 268 Kan. 501, 507, 996 P.2d 321 (2000). In this instance, the prosecutor’s comments fall into this latter category of reasonable inferences drawn from the evidence.
There was substantial testimony presented at trial regarding A.M.’s verbal deficiencies. Vocabulary testing placed her in the first percentile. Marshall admitted that he was aware of A.M.’s serious disabilities. The prosecutor’s comment that Marshall “doesn’t believe [A.M.] will ever be able to articulate what happened” was a reasonable inference drawn from the evidence. The State’s further argument that after A.M. became upset, Marshall “realizes that [A.M.] is going to be able to say what happened” and thus he “realizes he can’t risk leaving [A.M.] there while he gets money to get out of town” is also a reasonable inference drawn from the evidence. White testified that Marshall’s only reason for his call to her following the rape was to find out what time she would return. Misner testified that Marshall did not ask for money until after the rape had occurred. Given Marshall’s knowledge of A.M.’s serious disabilities, her articulation of distress following the rape, and Marshall’s conversations with White and Misner, it is reasonable to infer that Marshall took A.M. with him to his apartment in order to prevent A.M. from making any disclosures until after Marshall had an opportunity to flee the state.
Likewise, there was substantial evidence that Marshall utilized pink lotion during the act of digital penetration. The prosecutor’s statement — that Marshall “gets pink lotion, . . . not this medicated cream that was used to treat the rash weeks earlier . . . [and] [h]e uses it as a lubricant and he penetrates [A.M.] ’s genitals” — was again a reasonable inference drawn from the evidence.
Finally, Marshall objects to the State’s statement that A.M. “didn’t see” what Marshall “poked” her with. A.M. was asked at trial about what was used to “poke” her. She answered “a poker” but could not articulate further. A.M. testified that she was lying down and Marshall was standing up in front of her when the penetration occurred. The State’s argument came during rebuttal after Marshall’s counsel had argued in his closing that A.M. had been coached and was not credible, in part because she could not articulate what Marshall had “poked” her with. “Prosecutors have wide latitude ... to craft arguments that include reasonable inferences to be drawn from the evidence. That latitude includes explaining to juries what they should look for in assessing witness credibility, especially when the defense has attacked the credibility of the State’s witnesses.” State v. McReynolds, 288 Kan. 318, 325, 202 P.3d 658 (2009). Immediately after the portion of the State’s argument Marshall objects to, the prosecutor concluded: “When you look at [A.M.], you have to think, would a 5-year-old child relay what happened to them? How would they be able to describe this? He poked her.” Given A.M.’s verbal deficiencies, given her position lying down while Marshall stood over her, and given the defense efforts to undermine A.M.’s credibility, the prosecutor’s rehabilitation of A.M.’s testimony was limited to reasonable inferences drawn from the evidence and was not outside the wide latitude afforded the State in closing arguments.
Because we find that none of the alleged instances of misconduct falls outside the wide latitude afforded tire State when discussing tire evidence, we need not conduct a plain error analysis. The State did not commit reversible misconduct during its closing arguments.
Failure to Allege Aggravating Factor in Complaint
Next, Marshall argues that his due process rights were violated when his sentence was increased due to an aggravating factor not alleged in the criminal complaint against him. We apply a de novo standard of review to constitutional questions. State v. Kirtdoll, 281 Kan. 1138, 1151, 136 P.3d 417 (2006).
Kansas law permits the State to file a motion for an upward departure after a criminal complaint is filed:
“(b)(1) Upon motion of the county or district attorney to seek an upward du-rational departure sentence, the court shall consider imposition of such upward durational departure sentence in the manner provided in subsection (b)(2). The county or district attorney shall file such motion to seek an upward durational departure sentence not less tiran 30 days prior to tire date of trial or if the trial date is to taire place in less than 30 days then within seven days from the date of the arraignment.
“(2) The court shall determine if die presentation of any evidence regarding the alleged fact or factors that may increase the penalty for a crime beyond die statutory maximum, odier tiian a prior conviction, shall be presented to a jury and proved beyond a reasonable doubt during the trial of die matter or whether such evidence should be submitted to die jury in a separate departure sentencing hearing following the determination of die defendant’s innocence or guilt.” K.S.A. 2013 Supp. 21-6817(b)(l) and (2).
Here, the State followed this procedure and filed a motion putting Marshall on notice that it intended to seek an upward departure on the grounds that the “offense involved a fiduciary relationship which existed between the defendant and the victim.” The motion was filed nearly 5 months prior to trial. The alleged aggravating factor was submitted to the jury and found beyond a reasonable doubt, resulting in the enhanced sentence imposed on Marshall by the district court.
Marshall argues that despite the State’s compliance with the provisions of the Kansas Criminal Code, the notice he received was nonetheless constitutionally deficient. Marshall stakes his argument on United States Supreme Court decisions holding that any aggravating factor subjecting the defendant to an enhanced sentence must be charged in the indictment and proved to a jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999).
Whether the notice requirements of K.S.A. 2013 Supp. 21-6817(b)(1) satisfy constitutional due process presents a question of first impression to this court. We are guided, however, by our Supreme Court’s decision in State v. Scott, 286 Kan. 54, 183 P.3d 801 (2008), a case with facts directly analogous to those in front of us. The State had charged Scott with capital murder and subsequently provided notice of intent to seek the death penalty based on certain aggravating factors.
“Scott contends the notice provisions provided for in K.S.A. 21-4624(a) are unconstitutional because they do not require the State to specify the aggravating factors in the information. K.S.A. 21-4624(a) states:
‘If a defendant is charged with capital murder, idle county or district attorney shall file written notice if such attorney intends, upon conviction of the defendant, to request a separate sentencing proceeding to determine whether the defendant should be sentenced to death. Such notice shall be filed with the court and served on the defendant or the defendant’s attorney not later than five days after the time of arraignment. If such notice is not filed and served as required by this subsection, the county or district attorney may not request such a sentencing proceeding and the defendant, if convicted of capital murder, shall be sentenced to life without the possibility of parole, and no sentence of death shall be imposed hereunder.’
Scott argues that under Jones v. United States, 526 U.S. 227, 119 S. Ct. 1215, 143 L. Ed. 2d 311 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), aggravating factors, as elements of the offense, must be set forth in tire charging document.
“Scott’s argument is not persuasive. Jones and Apprendi both stand for the proposition that, under tire grand jury provision of tire Fifth Amendment and tire notice and jury trial provision of the Sixdr Amendment, any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. However, Scott fails to recognize that the requirement that such facts be charged in an indictment only applies in federal cases, as the Fifth Amendment’s grand jury provision does not apply to tire states through the Fourteenth Amendment. See Ring v. Arizona, 536 U.S. at 597 n.4; Apprendi, 530 U.S. at 477 n.3; Hurtado v. California, 110 U.S. 516, 538, 4 S. Ct. 111, 28 L. Ed. 232 (1884).” Scott, 286 Kan. at 101-02.
Marshall asserts the same failed argument made>by the defendant in Scott. Because the Fifth Amendment’s grand jury provision does not apply to Kansas, the only question is whether the notice provisions of K.S.A. 2013 Supp. 21-6817 comport with tire Sixth Amendment. “The Sixth Amendment requires only that the defendant be given ‘notice and an opportunity to respond.’ [Citation omitted]. Such ‘[n]otice must be sufficient to make the opportunity useful.’ [Citation omitted].” Scott, 286 Kan. at 102. The Scott court concluded that the statutory notice provisions concerning the death penalty — requiring notice that the State intended to seek the death penalty no later than 5 days following arraignment and requiring notice of the specific aggravating factor required prior to sentencing' — was sufficient to satisfy the minimum notice requirements of the Sixth Amendment. 286 Kan. at 102.
K.S.A. 2013 Supp. 21-6817(b)(l) requires the State to provide notice that it intends to seek an upward sentencing departure and to provide information to the court regarding “the alleged fact or factors that may increase the penalty” no less than 30 days prior to trial, or 7 days from the arraignment if the trial is to take place in less than 30 days. Applying Scott, we are convinced that these notice provisions are sufficient to satisfy the requirements of the Sixth Amendment. The fact that Marshall received actual notice of both the State’s intent and the aggravating factor the State would allege nearly 5 months prior to trial serves to illustrate the effectiveness of the Kansas notice provisions. Marshall was not denied his due process rights.
Apprendi SENTENCING CHALLENGE
Finally, Marshall claims the district court violated his Sixth and Fourteenth Amendment rights as articulated by Apprendi when it imposed an increased sentence based on his prior criminal histoiy without requiring the State to prove that criminal history beyond a reasonable doubt to a jury.
The interpretation of a sentencing statute is a question of law. Thus, our standard of review over Marshall’s claim is unlimited. See State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011). Additionally, the constitutionality of a sentencing statute is a question of law subject to unlimited appellate review. State v. Riojas, 288 Kan. 379, 388, 204 P.3d 578 (2009).
Marshall concedes that the Kansas Supreme Court has decided this issue against him. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). There is no indication that the Kansas Supreme Court is departing from its holding in Ivory. As such, we conclude the district court did not violate Apprendi when it considered Marshall’s criminal history without requiring that it be proven beyond a reasonable doubt to a jury.
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Arnold-Burger, J.:
Sean Aaron Key was convicted of a third time driving under the influence (DUI), a felony level offense. Prior to sentencing he objected to his criminal histoiy and challenged one of his prior misdemeanor DUI convictions as unlawful. He proffered that his attorney pled to the charge without Key being present and without Key s authority. The district court found that this was an impermissible collateral attack on a prior conviction and considered the prior conviction for sentence enhancement purposes. This court dismissed the appeal for lack of appellate jurisdiction. Subsequently, our Supreme Court determined that this court did have jurisdiction to determine the validity of a prior misdemeanor for sentence enhancement puiposes. However, the Supreme Court remanded the case to this court to discuss the underlying issue presented by Key; Can an unauthorized guilty plea invalidate a prior misdemeanor for sentencing enhancement purposes? The Supreme Court directed this court specifically to State v. Elliott, 281 Kan. 583, 133 P.3d 1253 (2006), State v. Neal, 292 Kan. 625, 258 P.3d 365 (2011), and State v. Delacruz, 258 Kan. 129, 899 P.2d 1042 (1995). Because our Supreme Court has not indicated that it is departing from its prior rulings that the right to collaterally attack prior convictions used for sentence enhancement is limited to those cases involving a denial of counsel and Key was not denied his Sixth Amendment to the United States Constitution right to counsel, we find that an unauthorized guilty plea does not invalidate a prior misdemeanor for sentencing enhancement purposes. The decision of the district court denying Key s motion to strike his 2007 DUI conviction from consideration for sentence enhancement purposes is affirmed.
Factual and Procedural History
On June 11, 2009, Key was charged with felony DUI. Key filed a motion to dismiss the charge as a felony because one of his prior DUI misdemeanor convictions was invalid. Key alleges that his attorney for that conviction pleaded guilty for Key in his absence without Key s permission and authority. The district court found Key’s motion to dismiss was an impermissible collateral attack on his prior DUI conviction.
Key pleaded guilty to the felony DUI but reserved the right to appeal the denial of his motion to dismiss, to challenge the use of his prior DUI conviction, and to challenge the severity level of his sentence.
In the presentence investigation report, two prior misdemeanor DUI convictions were listed. Key objected to the presentence investigation report, again asserting that one of his previous misdemeanor DUI convictions, the one from Ellis County District Court, was unlawful because his attorney pleaded guilty on his behalf without Key’s consent.
At sentencing, the district court heard Key’s argument pertaining to the use of his prior misdemeanor DUI conviction to enhance the severity of his sentence. The district court again denied Key’s argument finding that Key was attempting to collaterally attack the previous DUI conviction which was not allowed. Key was sentenced to 12 months’ imprisonment, but tire district court suspended Key’s sentence pending the outcome of his appeal.
Key filed a timely notice of appeal. This court dismissed Key’s appeal for lack of jurisdiction because Key failed to file a motion to withdraw his guilty plea on the previous misdemeanor DUI conviction.
Our Supreme Court granted Key’s petition for review and reversed this court’s dismissal of Key’s appeal on jurisdictional grounds. State v. Key, 298 Kan. 315, 312 P.3d 355 (2013). Our Supreme Court found:
“A defendant charged widr felony driving under the influence (DUI) under K.S.A. 2007 Supp. 8-1567 may challenge before the district court the validity of a prior misdemeanor DUI used to classify the severity level of tire current charge or to enhance the sentence following conviction on the current charge. However, if the defendant pleads guilty or no contest to the felony, the defendant will be limited on appeal to arguing the impropriety of the prior misdemeanor s effect as a sentencing enhancement.” Key, 298 Kan. 315, Syl. ¶ 1.
Thus, our Supreme Court remanded the case to this court, finding that there is appellate jurisdiction over Key’s challenge to his sentence, and asked us to rule on Key’s underlying claim. The Supreme Court restated the issue as follows:
“Should the principles underlying our decision in Elliott, Neal, and Delacruz apply to prevent a judge from sentencing a DUI defendant to a felony sentence when one of the prior DUI misdemeanors needed to enhance the sentence resulted from an unauthorized guilty plea? If so, must this case be remanded to the district court for a factual determination on whether Key’s 2007 guilty plea was unauthorized, or has the State already failed to carry its burden of proving Key’s criminal history by a preponderance of the evidence, compelling vacation of the felony sentence and remand for resentencing on the felony DUI as a misdemeanor?” Key, 298 Kan. at 322.
Analysis
We review the Supreme Court decision.
Pursuant to the opinion handed down by our Supreme Court in Key’s case, the court did have jurisdiction to determine the validity of Key’s prior misdemeanor DUI conviction when that conviction is used to enhance the sentence following Key’s conviction on the current charge. The court made a distinction between a challenge to the conviction and a challenge to the sentence. Once a defendant pleads guilty or no contest, he or she has surrendered the right to appeal the conviction. However, the defendant may still in limited circumstances, appeal the sentence. Key, 298 Kan. at 321. This remains the case even if the defendant enters the plea and specifically “reserves the right” to appeal the denial of his or her motion to dismiss and the severity level of the offense, as Key attempted to do here. The Supreme Court made it clear that if a defendant plans to challenge the validity of a prior misdemeanor DUI conviction as a classifying factor for a DUI felony charge, he or she must present that challenge at preliminary hearing or through a timely motion to dismiss. 298 Kan. at 322-23. If those efforts are unsuccessful, the defendant must go to trial, even if only on stipulated facts, to preserve the argument regarding classification on appeal. 298 Kan. at 323. If the defendant instead enters a plea of guilty or no contest and does not file an unsuccessful motion to withdraw the plea before the district court, our jurisdiction is limited to a review of the sentence pronounced in the felony case. 298 Kan. at 323.
In order to properly challenge the inclusion of the prior conviction for sentence enhancement purposes, the defendant must lodge an objection at sentencing. If successful, the felony conviction will not be erased, only the enhanced felony sentence. At this point, any attempts to set aside the conviction would have to be raised through a timely K.S.A. 60-1507 motion. 298 Kan. at 323.
Because Key entered a plea of guilty to a felony DUI, he cannot challenge his conviction. He will remain convicted of a felony DUI. But he did properly lodge an objection at sentencing, so we do have jurisdiction to consider his challenge to his sentence enhancement.
Our standard of reviews is de novo.
Our Supreme Court has asked this court to determine the underlying issue presented by Key: “Should the principles underlying our decision in Elliott, Neal, and Delacruz apply to prevent a judge from sentencing a DUI defendant to a felony sentence when one of the prior DUI misdemeanors needed to enhance the sentence resulted from an unauthorized guilty plea?” Key, 298 Kan. at 322.
Because this is a purely legal question, this court’s review is de novo. See State v. Walker, 283 Kan. 587, 614, 153 P.3d 1257 (2007). We will begin by reviewing the cases suggested to us by the Supreme Court and their progeny.
We review the cases to which we were referred by the Supreme Court.
We start, chronologically, with Delacruz. Our Supreme Court held that an uncounseled misdemeanor for which a defendant is not subject to incarceration can be included in his or her criminal histoiy for sentence enhancement purposes. 258 Kan. 129, Syl. ¶ 2. However, before a misdemeanor conviction which results in actual jail time may be included in a defendant’s criminal history, either the record must demonstrate that the defendant was represented by counsel or that tire defendant waived counsel. 258 Kan. 129, Syl. ¶ 7. In reaching this conclusion, our court relied on and approved of the rationale used by the United States Supreme Court in Nichols v. United States, 511 U.S. 738, 748-49, 114 S. Ct. 1921, 128 L. Ed. 2d 745 (1994) (Uncounseled convictions that do not result in jail time may be used for later sentence enhancement.). 258 Kan. at 135.
Our Supreme Court also expressly adopted the reasoning in Custis v. United States, 511 U.S. 485, 114 S. Ct. 1732, 128 L. Ed. 2d 517 (1994), where the defendant attempted to attack his prior convictions for sentence enhancement purposes based on ineffective assistance of counsel, that his guilty plea was not knowing and intelligent, and he had not been adequately informed of his right to opt for a trial on stipulated facts. The United States Supreme Court found that none of the defendant’s purported constitutional violations rose “to the level of a jurisdictional defect resulting from the failure to appoint counsel at all. [Citation omitted.]” Custis, 511 U.S. at 496. The denial of the Sixth Amendment right to counsel had much earlier been described as a jurisdictional bar by the United States Supreme Court. Johnson v. Zerbst, 304 U.S. 458, 467-68, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938). Accordingly, Custis limited collateral attacks on prior convictions to constitutional defects related solely to the appointment of counsel. 511 U.S. at 496. The Delacruz court followed suit, finding that Delacruz’ contention that his prior convictions were constitutionally infirm due to an inadequate plea colloquy — he contended he was not advised of his rights regarding his guilty pleas and his pleas were not knowingly and intelligently made — was not subject to review. The court opined that allowing a collateral attack on prior convictions on the basis of inadequate plea colloquies would force the sentencing court to look behind every conviction with practically no record to rely on. 258 Kan. at 139.
“The determination of claims of ineffective assistance of counsel and failure to assure that a guilty plea was voluntary would require sentencing courts, when considering previous convictions under federal sentencing guidelines, to rummage through frequently nonexistent or difficult to obtain state court transcripts or records that may date from another era.” 258 Kan. at 138-39.
The court in Delacruz also pointed out two additional reasons that collateral attacks on previous convictions are limited to cases involving the denial of the right to counsel: promoting the ease of administration and the finality of judgments.
As to promoting the finality of judgments, the court quoted the following from Custis:
“ ‘By challenging the previous conviction, the defendant is asking a district court “to deprive [tire state court judgment] of [its] normal force and effect in a proceeding that ha[s] an independent purpose other than to overturn the prior judg-men[t].” [Citation omitted.] These principles bear extra weight in cases in which the prior convictions, such as one challenged by Custis, are based on guilty pleas, because when a guilty plea is at issue, “the concern with finality sewed by tire limitation on collateral attack has special force.” [Citation omitted.]’ [Citation omitted.]” Delacruz, 258 Kan. at 139.
The Supreme Court reiterated its decision in Delacruz 1 year later in State v. Chiles, 260 Kan. 75, 917 P.2d 866 (1996). Chiles argued that his prior conviction should not be considered for enhancement purposes because he was not properly informed of the consequences of his guilty plea as required by Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969), and K.S.A. 22-3210. Chiles, 260 Kan. at 76. The court held, as it did in De lacruz, that “[a] defendant does not have a constitutional right to collaterally attack a prior conviction used to enhance a current sentence unless the prior conviction was obtained in violation of the right to counsel.” 260 Kan. 75, Syl.; see also State v. McDonald, 272 Kan. 222, Syl. ¶ 4, 32 P.3d 1167 (2001) (no constitutional right to collaterally attack a prior conviction unless it was obtained in violation of the right to counsel); State v. Long, 41 Kan. App. 2d 477, Syl. ¶ 2, 203 P.3d 45 (2009) (same); State v. Allen, 28 Kan. App. 2d 784, 790, 20 P.3d 747 (2001) (same).
Next, in Elliott, the defendant challenged four prior municipal court misdemeanor DUI convictions that were used to enhance his sentence because they should have been considered felonies— which would have deprived the municipal court of jurisdiction. Our Supreme Court held that a defendant can challenge a misdemeanor conviction for DUI when it is included in the defendant’s criminal histoiy for the purpose of enhancing the sentence for a felony DUI conviction. 281 Kan. 583, Syl. ¶ 6. In addition, the court found that the defendant’s third and fourth prior misdemeanor DUI convictions in municipal court were void and could not be used to enhance a subsequent DUI offense because the municipal court lacked subject matter jurisdiction over the cases. Elliott appears to be limited to a discussion of subject matter jurisdiction and tire general rule that subject matter jurisdiction can be raised at any time, it cannot be waived by the parties and a conviction that lacks jurisdiction is void. 281 Kan. 583, Syl. ¶ 3-4. The Elliott court does not reference any of the federal caselaw regarding violation of constitutional rights. However, because it did involve a jurisdictional bar, it is consistent with the holdings in Zerbst and Custis that violation of the Sixth Amendment right to counsel is a jurisdictional prerequisite to a valid conviction. Custis, 511 U.S. at 494; Zerbst, 304 U.S. at 468.
And finally, in Neal, the defendant filed a motion to correct an illegal sentence arguing that his uncounseled misdemeanor convictions were improperly combined into a single person felony in determining his criminal histoiy score. The Supreme Court held that a person charged with a misdemeanor that carried a sentence of incarceration, even if the sentence is suspended or probated, has a right to counsel. 292 Kan. at 633. This result was required due to the United States Supreme Court’s elimination of the bright line incarceration rule in Alabama v. Shelton, 535 U.S. 654, 658, 122 S. Ct. 1764, 152 L. Ed. 2d 888 (2002), and adopted by Kansas in State v. Youngblood, 288 Kan. 659, Syl. ¶¶ 2-3, 206 P.3d 518 (2009) (also finding that an uncounseled misdemeanor conviction obtained in violation of the misdemeanant’s Sixth Amendment right to counsel may not be collaterally used for sentence enhancement in a subsequent criminal proceeding). The opportunity to address die issue directly arose in Neal. On the prior conviction challenged by Neal, he had been sentenced to 3 months in jail but placed on probation and thus not required to actually serve the jail term. The Supreme Court reiterated that if the defendant did not receive counsel on such a misdemeanor, then that conviction cannot be used to enhance the defendant’s sentence. 292 Kan. at 632-33.
So clearly, we can conclude from these cases that the denial of the right to appointed counsel and the lack of the court’s subject matter jurisdiction can be the bases upon which a court may disregard prior convictions in the calculation of a subsequent sentence enhancement. However, claims of ineffective assistance of counsel or failure to comply with Boykin with regard to the due process requirements of a plea advisory are not allowed in a collateral attack of a prior conviction used for sentence enhancement purposes in a subsequent conviction.
Since the Custis decision, the United States Supreme Court has reaffirmed the limitation on collateral challenges in two cases, Daniels v. United States, 532 U.S. 374, 121 S. Ct. 1578, 149 L. Ed. 2d 590 (2001), and Lackawanna County District Attorney v. Coss, 532 U.S. 394, 121 S. Ct. 1567, 149 L. Ed. 2d 608 (2001). In Daniels, tire Court held that a federal prisoner could not challenge his federal sentence under 28 U.S.C. § 2255 (motion to vacate sentence) on the non-Gideon ground that his prior convictions were unconstitutionally obtained. Daniels, 532 U.S. at 376; see Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963). That same term, the Court extended the Custis holding to state prisoners seeking to challenge enhanced state sentences pursuant to 28 U.S.C. § 2254 (federal habeas corpus). In Coss, the Court stated:
“[W]e hold that once a state conviction is no longer open to direct or collateral attack in its own right because the defendant failed to pursue those remedies while they were available (or because the defendant did so unsuccessfully), the conviction may be regarded as conclusively valid. [Citation omitted.] If that conviction is later used to enhance a criminal sentence, the defendant generally may not challenge the enhanced sentence through a petition under [28 U.S.C.] § 2254 on tire ground that the prior conviction was unconstitutionally obtained.” 532 U.S. 403-04.
But, as in Custis, because the failure to appoint counsel under the Sixth Amendment is a unique circumstance that warrants special treatment among alleged constitutional violations, it is the only claim that can be raised in a collateral challenge to sentence enhancement. Coss, 532 U.S. at 404. That said, the United States Supreme Court did leave a small door open in both Coss and Daniels for the “rare [case] in which no channel of review was actually available to a defendant with respect to a prior conviction, due to no fault of his own.” Daniels, 532 U.S. at 383; see Coss, 532 U.S. at 405-06. In both Daniels and Coss the United States Supreme Court again emphasized the overarching considerations of preserving the integrity and finality of the prior judgment and ease of administration. Daniels, 532 U.S. at 379-80; Coss, 532 U.S. at 402-03.
In addition, the majority of state supreme courts that have faced this question have concluded that the reasoning of Custis is sound. “They have concluded that tire right to collaterally attack a conviction that will enhance a new charge or sentence should be, for solid constitutional and policy reasons, limited to a claim that the defendant was deprived of the fundamental Sixth Amendment right to counsel.” State v. Johnson, 38 A.3d 1270, 1275 (Me. 2012) (listing at least 11 states — including Kansas with Delacruz-that have expressly or implicitly adopted the Custis framework). Only two states, Montana and California, have specifically rejected Custis by significantly expanding the right to collaterally attack prior convictions. Johnson, 38 A.3d at 1275 n.7; see also State v. Weber, 140 Idaho 89, 94-95, 90 P.3d 314 (2004) (listing Kansas among the states that align with Custis based upon the Kansas Supreme Court decisions in Chiles and Delacruz).
We apply the law to the facts of this case.
Key likens his argument in this case, that the plea he entered in 2007 was unauthorized, to these prior cases. In other words, because the decision to plead and the choice of plea is a fundamental right guaranteed to a criminal defendant, a denial of that right should invalidate the conviction upon which it is based. Thompson v. State, 293 Kan. 704, 720, 270 P.3d 1089 (2011) (choice of plea is one of the few decisions about the conduct of a criminal case that rests entirely with the client); State v. Bricker, 292 Kan. 239, 252, 252 P.3d 118 (2011) (citing State v. Carter, 270 Kan. 426, 441, 14 P.3d 1138 [2000], for proposition that decision to enter a plea of guilty or not guilty to a criminal charge is a fundamental constitutional right guaranteed to a defendant and lies solely with the defendant).
So we return to the initial question. Is Key correct? Should the principles underlying Elliott, Neal, and Delacruz apply to prevent a judge from sentencing a DUI defendant to a felony sentence when one of tire prior DUI misdemeanors needed to enhance the sentence resulted from an unauthorized guilty plea? Key, 298 Kan. at 322. Our answer is, no.
Clearly, the decision to enter a guilty or not guilty plea to a criminal charge is a fundamental constitutional right guaranteed to the defendant and lies solely with the defendant. Carter, 270 Kan. at 441. A defendant’s tacit acquiescence in the decision to plead is insufficient to render the plea valid. Florida v. Nixon, 543 U.S. 175, 187-88, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (citing Boykin, 395 U.S. at 242). A plea of guilty entered by counsel has the same force and effect as a plea personally entered by the accused, where the accused is present in court (when counsel enters the plea and the circumstances are such as to show clearly that the accused understands what is being done and acquiesces therein.” State v. Spain, 193 Kan. 1, 4-5, 391 P.2d 1001 (1964) (defendant remained silent while counsel entered plea to a felony).
But in misdemeanor cases, the court may allow the defendant to appear and plead by counsel. K.S.A. 22-3210(b). Similarly, K.S.A. 22-3405 requires that the defendant be present at every stage of a felony case but allows the defendant to be present either personally or by counsel at every stage of a misdemeanor case. See also K.S.A. 12-4402 (allowing municipal judge, at his or her discretion, to require defendant’s appearance on a DUI or allow appearance and plea through counsel or by mail); K.S.A. 12-4407 (Upon a guilty plea, the municipal judge “may hear evidence touching on die nature of the case, or otherwise ascertain the facts thereof’ and may accept the plea or refuse to accept the plea.). So if the misdemeanor plea is authorized by the defendant, it can be entered in abstentia through his or her attorney.
Key alleges that he did not authorize his attorney to enter a guilty plea. He claims he was not present and did not even know his attorney was entering a plea on his behalf. A review of the record provides some support for his claim. The journal entry of sentencing indicates that Key appeared by his attorney John Boone. The plea and sentence contained in the journal entry are only signed by his attorney. The signature line for Key is blank.
However, it is undisputed that he did have an attorney, so there is no Sixth Amendment Gideon violation here. He does not contend that he did not want to plead guilty or that he would have been acquitted had he gone to trial. He did not appeal his conviction. He did not seek to withdraw his plea. In fact, he served his sentence. Because there is no allegation that he did not comply with his sentence, we assume he successfully completed his 1-year probation period and paid his fines. He did not challenge the jurisdiction of the court. He proffers no reason for not challenging his conviction if he believed his plea to be without his permission or knowledge. He does not claim that there was anything beyond his control that prevented him from a timely challenge to his conviction and sentence in 2007.
We find no cases that elevate the entry of an unauthorized guilty plea to die same level as denial of the Sixtii Amendment right to counsel. It is, for all purposes, an ineffective assistance of counsel claim. The decision to enter a plea is but one of many fundamental rights at stake in a criminal conviction. Certainly, the right to counsel includes the effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel can deprive a defendant of effective assistance by failing to render “ ‘adequate legal assistance'” 466 U.S. at 686. Thus, the adversarial process protected by the Sixth Amendment requires that the accused have “counsel acting in the role of an advocate.” Anders v. California, 386 U.S. 738, 743, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). But even in Carter, the court found that imposing a guilt-based defense against defendant’s wishes violated defendant’s fundamental right to enter a plea of not guilty and accordingly “deprived the defendant of effective assistance of counsel.” (Emphasis added.) 270 Kan. 426, Syl. ¶ 4.
Our Supreme Court has not been hesitant to reverse convictions upon a finding that counsel was ineffective. See State v. Cheatham, 296 Kan. 417, 419-20, 447, 292 P.3d 318 (2013) (counsel repeatedly referred to client as a “ professional drug dealer’ ” and “ ‘shooter of people’ voluntarily disclosed prior manslaughter conviction to the jury; advised the jury that ignoring client’s background when determining guilt would require “ ‘some sort of superhuman fiction’ and had a conflict of interest). Key’s claim that his attorney entered a plea to a misdemeanor without his knowledge, to which he later acquiesced by serving the 5-day jail sentence, pales in comparison to Cheatham’s attorney’s actions in his capital murder trial. If true, both constitute ineffective assistance of counsel and our Supreme Court, as well as the United States Supreme Court, has consistently rejected claims that ineffective assistance of counsel can be the basis for a collateral challenge to a subsequent sentence enhancement.
Moreover, to expand consideration of such collateral attacks to tire denial of “fundamental rights” beyond the right to appointment of counsel opens a floodgate of potential claims and the erosion of the concept of finality of judgments. As the court feared in Delacruz, it would force the sentencing court to look behind every con-ruction with practically no record to rely on. 258 Kan. at 139; see State v. Larraco, 32 Kan. App. 2d 996, 999, 93 P.3d 725 (2004) (“There is no more fundamental right in the United States than the right to a jury trial.”); State v. Roland, 15 Kan. App. 2d 296, 300-01, 807 P.2d 705 (1991) (reversing conviction because counsel agreed to an 11-member jury when one member was allowed to leave due to a family death, but defendant was not consulted); State v. Cox, 297 Kan. 648, 656-57, 304 P.3d 327 (2013) (violation of Sixth Amendment fundamental right to public trial requires reversal).
The United States Supreme Court has not expanded its ruling in Custis, instead it has continued to limit it solely to cases involving the denial of appointed counsel. The rationale for such a limitation was subsequently expressed in Daniels and Coss. We find this approach to be sound. As the Supreme Court stated in Daniels,
“a defendant generally has ample opportunity to obtain constitutional review of a state conviction. [Citation omitted.] But once the ‘door’ to such review ‘has been closed,’ [citation omitted] by tire defendant himself — either because he failed to pursue otherwise available remedies or because he failed to prove a constitutional violation — the conviction becomes final and the defendant is not entitled to another bite at the apple simply because that conviction is later used to enhance another sentence.” 532 U.S. at 383.
Expanding the situations in which a defendant can collaterally attack a prior conviction “provide convicted defendants an incentive to forego a timely appeal or petition for post-conviction review, knowing that they will never lose the ability to challenge the validity of the conviction if, in the future, it is relied upon by the State to enhance a new criminal charge.” Johnson, 38 A.3d at 1278. Our system of justice should encourage the predictable and timely completion of criminal cases, not provide defendants with an incentive to delay exercising their rights to appellate and post-conviction review. See also State v. Boskind, 174 Vt. 184, 192, 807 A.2d 358 (2002) (“We fail to see how the defendant, judicial administration, or justice are served by a system that provides incentives for defendants ... to ignore alleged constitutional violations at the time they take place in the belief that some tactical advantage may be gained by challenging a conviction remote in time.”).
The Court of Appeals is duty bound to follow Kansas Supreme Court precedent, absent some indication the court is departing from its previous position. See Friends of Bethany Place v. City of Topeka, 297 Kan. 1112, 1130, 307 P.3d 1255 (2013). We find that based upon our Supreme Court’s clear direction in Delacruz, Chiles, McDonald, Elliott, and Neal, as well as the United States Supreme Court decisions in Custis, Daniels, and Coss, a claim that a defendant’s counsel was ineffective for entering a plea of guilty on his or her behalf without the authority to do so does not provide an independent basis upon which to collaterally attack the validity of a prior misdemeanor conviction used to enhance a subsequent sentence. We find nothing in the decisions of our Supreme Court to indicate it is departing from its clear and unequivocal statement in Delacruz that “[t]he right to collaterally attack prior convictions used for sentence enhancement is limited. Only in those cases involving a denial of counsel as outlined in Gideon is such an attack allowed.” Delacruz, 258 Kan. 129, Syl. ¶ 5.
Key had ample opportunity to raise this claim in 2007 as a direct appeal or a motion to withdraw his plea, or subsequently, in a proceeding under K.S.A. 60-1507. He may have been successful. But he is not entitled, under current federal and Kansas jurisprudence, to a second bite of the apple.
Accordingly, the decision of the district court denying Key’s motion to strike his 2007 DUI conviction from consideration for sentencing enhancement purposes is affirmed.
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Arnold-Burger, J.:
Since 2011, Kansas law has required that the trier of fact in a criminal case determine if there is evidence that the defendant committed a domestic violence offense. K.S.A. 2013 Supp. 22-4616. A domestic violence offense is defined as “any crime committed whereby the underlying factual basis includes an act of domestic violence.” K.S.A. 2013 Supp. 21-5111(j). If the offense is determined to be one of domestic violence, the case receives a special domestic violence designation. K.S.A. 2013 Supp. 22-4616(a)(l). Application of this domestic violence designation to a particular case results in a court order that the defendant complete a domestic violence offender assessment and follow its recommendations as part of his or her sentence. K.S.A. 2013 Supp. 21-6604(p). However, the statute provides an exception to this rule if the court finds on the record that the defendant “has not previously committed a domestic violence offense” and the current offense “was not used to coerce, control, punish, intimidate or take revenge against a person with whom the offender is involved.” K.S.A. 2013 Supp. 22-4616(a)(2)(A), (B).
Gary Gordon, Sr., entered a no contest plea to aggravated battery against his live-in girlfriend. After the district court accepted the plea, the State requested that the court apply the domestic violence designation to Gordon’s case. Gordon objected, arguing that the district court was required to make findings on the record that the exception did not apply before applying the designation. The district court disagreed. Gordon appeals the domestic violence designation. Because we find that the district court is only required to make factual findings concerning the exception when the exception is applied, we affirm the district court’s order.
Factual and Procedural History
In die early hours of the morning on May 11, 2013, law enforcement officers arrived at Gordon’s home to investigate a domestic disturbance. At the time, Gordon and his long-time girlfriend Rosemary Schmeal lived together at the residence. When officers first knocked at the door, no one answered; after a time, Gordon answered the door and informed the officers that “he didn’t know what was going on, that [Schmeal] was drunk.” He directed officers to the bedroom, where they found Schmeal lying on the floor, her head and hair wet with blood that dripped onto the carpet. The officers observed a cut and swelling on the left rear side of her head. Schmeal informed the officers that she had been hit in the face. She then explained that after a doctor’s appointment, she and Gordon had arrived home and had a few drinks before she went to bed. However, she later woke up to “Gordon striking her about the head and face with a flashlight,” which officers found at the scene. The flashlight “was covered in blood and clumps of hair that had been — that appeared to have come from Ms. Schmeal’s head.” Schmeal ultimately received medical treatment for these injuries.
The State charged Gordon with one count of aggravated battery and one count of domestic battery. Ultimately, Gordon entered into a plea agreement with the State in which he agreed to plead no contest to the aggravated batteiy charge in exchange for a dismissal of both the domestic battery charge and another criminal case — 13-CR-42—pending in the same court. Gordon did not object to the factual basis for the plea. The district court found it sufficient to convict him.
At the time of Gordon’s plea, the State requested that the district court apply the domestic violence designation in K.S.A. 2013 Supp. 22-4616 to Gordon’s case. The State noted that 13-CR-42 — the dismissed case — also involved Gordon and Schmeal and that, at the time of the plea hearing, Gordon was on probation for another offense involving domestic battery against Schmeal. We pause to note that in its appellate brief the State concedes that it misspoke at the arraignment. Gordon was not on probation when the aggravated battery occurred, but he was out on bond on case number 13-CR-42 — a domestic violence charge — -when the aggravated battery was committed. But Gordon had been on probation in the past for domestic battery. The records of the prior domestic battery conviction were included, without objection, in the record on appeal.
Regardless of this misstatement, Gordon objected to the court making the domestic violence offense finding at the time of the plea, arguing only that the court needed to wait until sentencing to make the domestic violence designation. In response, the district court agreed to take the issue of the designation under advisement; however, when a court services officer noted that the court needed to make the designation in order for it to appear on Gordon’s pre-sentence investigation report, the district court agreed to qualify the offense as one of domestic violence over Gordon’s objection.
The district court sentenced Gordon to 21 months in prison but granted him probation for 24 months. After the court pronounced tire sentence, the State inquired about requiring a domestic violence evaluation. At that time, Gordon again objected to the district court applying the domestic violence designation. Gordon reasoned that the district court needed to “make the findings per the statute” — that is, specifically find on the record that the statutory exception to the domestic violence designation outlined in K.S.A. 2013 Supp. 22-4616(a)(2) did not apply. The district court disagreed and made no additional findings. It subsequently checked the box on the sentencing journal entry regarding the domestic violence designation and ordered that Gordon undergo a domestic violence assessment as part of his sentence.
Gordon timely appealed.
Analysis
The district court did not violate Gordons rights when it designated his crime a domestic violence offense.
On appeal, Gordon argues that the district court violated his due process rights by misinterpreting K.S.A. 2013 Supp. 22-4616(a)(2). Namely, he argues that the statute in question, which allows for a domestic violence designation in certain cases, requires specific, explicit findings from the district court that the statutory exception does not apply. The State, on the other hand, contends that Gordon’s interpretation of the statute ignores its plain meaning.
Interpretation of a statute is a question of law over which this court exercises unlimited review. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011).
Preliminarily, a domestic violence offense is an offense in which the offender commits “an act or threatened act of violence” against either the individual he or she is dating or against one of his or her family or household members. K.S.A. 2013 Supp. 215111(i), (j). The term also encompasses “any other crime committed against a person or against property” that is directed at either the person the offender is dating or one of his or her family or household members. K.S.A. 2013 Supp. 21-5111(i).
The Kansas Code of Criminal Procedure provides a special statutory designation for domestic violence offenses — a designation which carries with it a specific sentencing provision. K.S.A. 2013 Supp. 22-4616. The trier of fact is to make a determination in every criminal case as to whether the offense is one of domestic violence and therefore possibly subject to the domestic violence designation. Applying this designation is a multistep process and is best summarized as follows:
• If there is evidence in a criminal case that the offense in question is a domestic violence offense, the trier of fact shall determine whether the offense is indeed one of domestic violence.
• If that determination is made, the district court shall place a domestic violence designation on the case.
• If that designation is applied, the defendant shall be subject to a domestic violence assessment and shall follow its recommendations as part of his or her sentence. K.S.A. 2013 Supp. 21-6604(p); K.S.A. 2013 Supp. 22-4616(a).
However, there is an exception that may prevent a case from receiving the domestic violence designation. If the district court finds on the record that the defendant has never before committed or entered into a diversion for a domestic violence offense and that tire offense in question was not used “to coerce, control, punish, intimidate or take revenge against a person with whom the offender is involved or has been involved in a dating relationship or against a family or household member,” the court shall not apply the designation. K.S.A. 2013 Supp. 22-4616(a)(2)(A), (B).
On appeal, Gordon does not dispute that the district court had authority under the statute to designate the offense a domestic violence offense. Instead, he argues the district court slapped an important procedural step before applying tire designation. That step, Gordon argues, requires that the district court find on the record that the two conditions in K.S.A. 2013 Supp. 22-4616(a)(2) do not apply before placing the designation on the offense.
But Gordon’s interpretation of the statute is an unreasonable one. The most fundamental rule of statutoiy construction 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). Such intent is ascertained from the statutory language enacted, giving common words their ordinary meanings. State v. Urban, 291 Kan. 214, 216, 239 P.3d 837 (2010). If the 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.” 291 Kan. at 216.
A close reading of the statute indicates that the language present in the disputed section is unambiguous. The statute clearly provides that once an offense is designated a domestic violence offense, the designation is required unless the conditions in K.S.A. 2013 Supp. 22-4616(a)(2) apply. In other words, after the initial determination, the designation is the default and can only be lifted if the district court explicitly finds “on the record” that the two conditions are satisfied. Without those findings, the designation stands, and the offender is subject to the domestic violence assessment as set out in K.S.A. 2013 Supp. 21-6604(p). Nothing in the statute supports Gordon’s argument that the legislature intended for the district court to consider the two conditions outlined in K.S.A. 2013 Supp. 22-4616(a)(2) and malee a negative finding on the record if the conditions do not apply. Instead, the statute indicates that consideration of those conditions is the exception, not the rule. The court is not required to make findings on the record that the conditions outlined in K.S.A. 2013 Supp. 22-4616(a)(2) have not been satisfied. The statute is explicit and unambiguous in requiring specific findings on the record only when the conditions have been satisfied.
Moreover, although he objected to the lack of a negative finding, Gordon never argued to tire district court that the exception in K.S.A. 2013 Supp. 22-4616(a)(2) applied in the instant case. The record clearly supports application of the designation. The factual basis for the plea, which Gordon did not object to, indicates that Schmeal and Gordon lived together in a domestic relationship and that Gordon hit Schmeal with a flashlight, causing her injury. The State orally proffered, without objection, that Gordon was on probation for domestic battery at the time of the current offense— which would clearly make the exception inapplicable. The court was not required under the statute to state on the record the reasons the exception did not apply.
The district court was not required to submit Gordons criminal history to a jury prior to sentencing.
Gordon also argues that sentencing him based on his prior criminal histoiy without submitting that history to a jury for proof beyond a reasonable doubt is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). However, he concedes that State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), controls on this issue. He makes no other arugment.
Because this issue is a question of law, this court exercises unlimited review. See 273 Kan. at 46. In Ivory, our Supreme Court analyzed the interplay between Apprendi and the use of a defendant’s prior criminal history both by considering cases decided before Apprendi and by researching decisions from other states and federal courts. After considering these, the court decided that Apprendi's mandate that facts other than prior convictions must be submitted to a jury and proved beyond a reasonable doubt does not apply to a defendant’s criminal histoiy score. Ivory, 273 Kan. at 46-47. Additionally, the court declined to treat prior convictions as essential elements that require a jury’s decision. 273 Kan. at 47.
This court is obligated to follow our Supreme Court’s precedent absent an indication that the court is departing from a prior position. State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The court recently affirmed its reasoning in Ivory. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013). Since there is no indication that the court is departing from Ivory, it controls the outcome of this case. Ivory applies, and the use of Gordon’s criminal history score in sentencing does not violate Apprendi.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Edward Cr. Chase against the board of commissioners of Lyon county, for fees as a witness in the case of The State of Kansas v. Robert Best, who was prosecuted criminally in said county, for murder. The facts of the case are substantially as follows :
Chase, who resided in Lyon county, within seventeen miles of Emporia, the county seat of that county, and who was an important witness in the above case, duly entered into a recognizance in the sum of $100, for his appearance at the next term of the district court to be held in Lyon county, to serve as a witness in the case on the part of the state. Afterward, but before the next term of the court, he changed his residence from Lyon county to Boston, Massachusetts. At the next term of the court, he made his appearance in pursuance of his recognizance and at the request of the county attorney, and attended the court five days, and was a witness in the case, and then returned to his home in Boston — actually traveling, in going to Emporia and returning to Boston, 3,200 miles. It is agreed that the nearest route from Boston to Emporia and return is 3,200 miles, and the nearest route from the state line at Kansas City to Emporia and return is 254 miles, and it is also agreed that Kansas City is on the usual route from Boston to Emporia. The said Best was duly convicted and sentenced for manslaughter in the second degree, and is now serving his sentence in the penitentiary, and is wholly unable to pay the costs of said ease. Previous to the next term of the court, and previous to October 1, 1879, the clerk of the court duly taxed the costs in the said criminal case, and delivered to the county attorney a complete and accurate fee bill of the same as provided by § 333 of the criminal code; and the county attorney duly examined and certified the bill, which included Chase’s claim, to the board of county commissioners as provided by § 334 of the criminal code; and the board, on October 8, 1879, allowed $10.90 of Chase’s claim, and refused to allow any greater sum, and Chase, feeling himself aggrieved by the action of the board, duly appealed to the district court. The district court allowed $327.50 on Chase’s claim — $320 thereof being allowed for mileage, and. $7.50 thereof being allowed for attendance at court. The county, feeling itself aggrieved by the decision of the district court, now brings the case here for review.
The only question presented to this court is with regard to the mileage fees allowed by the district court to Chase, as a witness. The decision of this question depends entirely upon the interpretation that may be given to §15 of the act concerning fees and salaries. So much of said section as applies to this case, reads as follows: “ Witnesses shall receive the following fees: . . . For each mile necessarily and actually traveled in going to and returning from the place of attendance, ten cents.” (Comp. Laws of 1879, p.445, §15.) It will be noticed that the statute does not fix the starting-place. Ordinarily, we should think'that the starting-place would be at the place of residence of the witness at the time-it was necessary for him to make the start for the purpose of attending the court as a witness. It cannot be supposed that it,is the place of his residence at the time the witness enters into the recognizance, for the statute does not seem to contemplate any such thing, and our statutes were not enacted with any purpose of preventing witnesses or others from changing their places of residence. And it cannot properly be held that the starting-place is any place beyond the boundaries of our own state, for we have no jurisdiction beyond our own boundaries. No process from any court or tribunal in this state can have any power or force in any other state. There was no power in this state that could compel the wit ness Chase to come from Boston to Emporia. Our laws have no extra-territorial force. They do not reach Boston. Therefore, when the legislature provided for paying witnesses mileage fees, we think the legislature merely intended that the witnesses should receive mileage fees only for the distance necessarily and actually traveled within the jurisdiction of the court. If we are correct in this, and we think we are, the witness Chase was entitled to mileage fees for the distance traveled from the state line to Emporia and return, or for 254 miles traveled, making $25.40 mileage fees, and $7.50 fees for attendance at court; total, $32.90.
This cause will be remanded to the court below, with the order that the judgment of the court below be modified by reducing it from $327.50, as it was originally rendered, to $32.90. The costs of this court will be equally divided between the parties.
Brewer, J., concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
In the year 1859 the United States issued a patent to Benoni Pritchard for the south one-half of the north one-half of the southwest one-fourth of section 12, township 22, range 11, the land being in Greenwood county, Kansas, and being the land in controversy in this action. On the 15th day of January, 1870, said Benoni Pritchard and- Margaret Pritchard, his wife, made a will by which the above-described tract of land, together with other property, was devised to Joseph L. Pritchard and Narcissa Pritchard, now Narcissa Bush, wife of J. W. Bush. Benoni Pritchard died about the last of January, 1870, and Margaret Pritchard died on the 14th of September, 1872. The will was probated at the October term, 1870, of the probate court of Greenwood county, as to Benoni Pritchard. On the 28th day of October, 1874, said Narcissa and J. W. Bush conveyed their interest in said tract of land to Joseph L. Pritchard, by warranty deed, which was recorded on the 6th of January, 1875, in said county. On the 13th of February, 1875, said Joseph L. Pritchard conveyed said tract of land to Horatio Pritchard, the plaintiff in this action, by warranty deed, which deed was recorded on the 16th of February, 1875, in said county. Plaintiff has been in continual possession of said tract of land ever since he received said title to it. On the 3d of October, 1877, the following-entitled action was commenced in the district court of Greenwood county, Kansas, under chapter 39 of the session laws of 1877, to wit: “The board of county commissioners of Greenwood county v. the northwest quarter of section 3, in township 22, range 10,. and other property, and William J. Foster, Joseph Hall, J. W. Tilton, and others unknown, and all persons having or claiming an interest therein.” To the petition filed in this action an exhibit was attached, in which the south half of' the north half of the southwest quarter of section 12, in township 22, range 11, was described as the property of Margaret Pritchard. No summons or notice of any kind whatever, to any person or thing,-was issued from said court-on the petition, and no’ personal notice served upon any one. The notice, however, required by chapter 39 of the laws of 1877, was duly published. At the May term, 1878, of said district court, judgment was rendered by the court in this action, in which it was adjudged that the said south half of’ the north half of the southwest quarter of section 12, township 22, range 11, was the property of Margaret Pritchard, and judgment was rendered against said tract of land for the sum of |66.47 and for costs; and it was ordered that said tract of land be sold for the satisfaction of the judgment, and the overplus, if any, be paid to said owner. An order of sale was issued thereon, and the sheriff sold this tract of land, together with many others, to Greenwood county, and on the 1st of January, 1879, he executed a deed to that county therefor, which was duly recorded on the 5th of February, 1879. On the 28th day of January, 1879, the county conveyed this tract of land to Matthias Madren, the defendant herein, which was recorded on the 3d of March, 1879. On the 3d of July, 1879, the plaintiff in error commenced this action in the court below to quiet his title to the said south half of north half of the southwest fourth of section 12, township 22, range 11, and on the 14th day of November, 1879, by leave of court, filed an amended petition; and on the 20th of that month the case was tried by the "court without a jury, upon the amended petition, amended answer to amended petition, the reply, and the evidence, and a judgment rendered for the defendant; to which judgment the plaintiff then and there excepted. A motion for a new trial having been made and overruled, the case is brought to this court for review.
It is not alleged in the petition, nor is it anywhere disclosed in the record, that the taxes charged up against this land were illegal in any respect, or that plaintiff had ever paid the same, or made any tender of them to the county or defendant. The case comes before us upon the claim that the statute referred to is illegal, and that the proceedings under it gave no sort of title or interest to defendant. Let us stop for a moment to consider the case in that aspect of it. Will the mere illegality of these proceedings sustain an action to quiet title as against them? In the cases of City of Lawrence v. Killam, 11 Kas. 499, and Challiss v. Comm’rs of Atchison Co., 15 Kas. 49, it was held that an injunction would not lie to restrain tax proceedings without a prior payment or tender of all legal taxes. The same doctrine was carried further in Knox v. Dunn, 22 Kas. 683, and there it was decided that without such tender an action to quiet title will not be sustained against the holder of a tax-sale certificate. And in Herzog v. Gregg, 23 Kas. 726, an action to quiet title was sustained as against the holder of a defectiv.e tax deed, upon proof of tender- of the amount of the legal taxes and charges. In that case it was said that in “an equitable action, the party claiming the title sought to be quieted should receive whatever is rightfully due from the plaintiff, before such title is disturbed.” See also Corbin v. Young, ante, p. 198. It would seem that the principles upon which those cases were decided are controlling here. Taxes are a lien upon real estate, made so by statute. The challenge is made of these taxes. They were legal and valid, a just lien upon this real estate. Plaintiff, claiming to be the owner of the land, does not pretend to have paid them, and yet asks a court of equity to cast off as a cloud upon his title the proceedings had by the public to collect them. Is not the rule just and right, as well as universal, that, where a charge upon real estate is shown to be legal and fair — one that equitably should be paid by the owner of the real estate— no action will be sustained in a court of equity to restrain proceedings to enforce and collect that charge, or to set aside a title founded upon such proceedings, without a prior payment or tender of the amount of such charge ?
But it may be and is said that the act under which these proceedings were had is unconstitutional; that therefore the proceedings are nullities, and the county may again attempt to collect this tax, even if tender and payment had been made to defendant, and so the plaintiff be compelled to pay twice. If this were true, then the deed would be void upon its face, would never start the statute of limitations to run, and what need would there be of this action to quiet title? Plaintiff being in possession, no action is necessary to protect his possession, and proceedings under an unconstitutional and void statute will never of themselves ripen into a title by lapse of time. It would seem that the very argument in favor of the unconstitutionality of the statute is an argument against the necessity of this action. (Douglass v. Nuzum, 16 Kas. 515.)
Is the statute, however, unconstitutional? We shall consider upon this question only the objections which are presented by counsel. We do not consider it our duty to search for defects, and the objection raised by the learned counsel is not good. They challenge the act on the ground that the proceedings under it are not due process of law. The sub'stance of the statute is this: While the ordinary process for the collection of taxes is by sale by the treasurer) this statute authorizes the county, in case of failure to collect by the ordinary process, to foreclose the tax lien by proceedings in the district court. Is not this due process of law ? Is there any constitutional requirement or inherent necessity compelling th"e collection of taxes by the single process of sale by county officers? Clearly not. The method of collection is not prescribed in the constitution, but is left to the legislative discretion ; and because one method has hitherto been adopted, is no limitation on the power to adopt another. There is no inherent vice in collecting taxes by judicial proceedings in the courts, instead of by summary process of sale by county officials. The legislature may adopt either, or both. A collection in either way is by due process of law. A tax, when duly levied, becomes a lien upon the land, which may be enforced in such manner as the legislature shall prescribe. The mere remedy is always within legislative control. A change in it disturbs no vested rights.
Again, objection is made to the proceedings in this case and the judgment rendered, on the ground principally that neither the land nor the owner was named in the title of the petition, that in the body of the petition and the judgment the land is alleged and found to be the property of another than the real owner, and also because while the owner was a resident the only notice given was by publication. Neither of these grounds of objection is well taken. The collection of taxes is a proceeding in rem. The land and the delinquent taxes are correctly described in the body of the petition and in the publication notice. And even in an ordinary action, an omission of the name of a defendant from the title of the petition, when the same duly appeared in the body thereof, and he was duly served, would not render the judgment void in a collateral attack. So here, however defective the title may be, if the petition fully and clearly states all the facts constituting a cause of action against this particular tract of land, facts sufficient to justify a decree of foreclosure against it, and due and legal service of all process or notice required is made, the jurisdiction of the court is complete, and its judgment is not open to collateral attack. That the notice required by this statute is sufficient must be affirmed upon the authority of the cases of Gulf Rld. Co. v. Shepard, 9 Kas. 647; Fudge v. Fudge, 23 Kas. 416 — in the opinion in the first of which cases the matter is discussed and authorities cited. As to the misdescription of the owner of the land in the petition and judgment, no sale for taxes is vitiated by a failure to enter the name of the true owner of the land on the tax roll. (Comp. Laws 1879, p. 962, § 118.) Neither is the name of the owner required in proceedings under said ch. 39, §§ 1 and 4. That act contemplates proceedings in rem, provides for notice to all persons interested, and that all persons interested, whether named or not, shall be deemed to be defendants, and bound by the judgment. Whatever right of redemption from a sale under the provisions of that chapter may exist in a case of a misdescription of the owner, —and as to that we need not inquire in this case — it cannot be held that the judgment is thereby rendered void.
We have considered the various questions presented by counsel, though the first two matters really decide the case. The judgment will be affirmed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This is an action of mandamus brought originally in thig court by H. N. Kirkpatrick and others, who claim to have been elected officers of the city of Anthony, (a city of the third class,) at an election held in said city on April 5,1880, to compel the defendants, G. W. Vickers and others, who are the city councilmen and the board of canvassers of that city, to canvass the returns of said election. An alternative writ of mandamus has been issued in the case, and the defendants make return thereto that they have obeyed the mandate thereof by canvassing the said election returns. The plaintiffs controvert the truth of this return, and' the only question in the case is, whether the return is true or not; that is, have the defendants in fact canvassed said election returns? It appears from the pleadings and evidence that at said election in said city, two election polls (instead of one) were opened, that at each of which votes were received, that returns from each were duly made to the city clerk, that the defendants, as a board of canvassers, at first refused to canvass either set of said returns, but afterward, and in assumed compliance with the mandate of this court, canvassed one set of said returns, and refused to canvass the other set. The plaintiffs claim that the returns which the board canvassed were not the returns of the legal election held in said city, but that the returns which the board refused to canvass were such legal returns. The only question then for us to determine is, which of said two elections was legal? Or rather, was the election, the returns of which the board refused to canvass, legal? For if said last- mentioned election was not legal, then we must decide this case in favor of the defendants, whether the other election is valid or not, for the plaintiffs in this case found their entire cause of. action upon the election, the returns of which the board refused to canvass.
Both elections were held at the same time and in the same building — the county court house. This court house is a small one-story building with two rooms, and a board partition between the rooms, and a door and one or two scuttle-holes in such partition, giving access from one room to the other. This is the place where elections were generally held, and where the people universally understood that they were to be held. The elections, however, were generally held in the south room of said court house. The city council had also previously passed an ordinance that the elections should be held at the police judge’s office, and by using the words “police judge’s office,” they meant the south room of said court house, but the police judge never in fact held his office at the court house, and never in fact did any business there, but in fact did all his business as police judge at his own private office, about four hundred yards distant from the court house. At about 7 o’clock in the morning of the first Monday in April, (April 5,) 1880, the day on which the city election was to be held, the voters of the city of Anthony commenced to congregate at said court house, for the purpose of holding their city election. The couuoilmen who had been designated by the mayor and council to serve as judges of the election, failing to attend, or refusing to act, the bystanders proceeded to elect judges for such election, and these judges appointed the- clerks. This was all done before 8 o’clock. About ten or fifteen voters participated in this organization. Very soon afterward, and about 15 minutes before 8 o’clock, other electors having arrived, and being dissatisfied with said organization, a second organization was perfected. A full set. of judges was elected for this second board, and a full set of clerks appointed — all according to law, provided the electors present then had the power to organize an election board. There were about twenty or twenty-five electors who took part in this second organization, and this organization was perfected before 8 o’clock of the morning of the election. Both organizations were effected in the south room of said court house. As soon as the second board was organized, it went into the north room of the court house and received votes through a scuttle-hole in said board partition — the voters standing in the south room. The first board remained in the south room and there received votes. Twenty-nine votes were received by the first board, and fifty-one by the second. It does not appear that any illegal vote was polled at either place, or that any elector voted more than once. There were about ninety-five legal voters residing at that time in the city of Anthony.
Upon the foregoing facts, we are of the opinion that the second board (the board last organized) was the legal board, and that the election held by it was the legal election.
We do not think it makes any material difference whether said court house, or the south room of said court house, was, strictly speaking, the police judge’s office or not, for all the people of the city of Anthony seem to have recognized it as the proper place for holding city elections. Nor do we think that it makes any material difference that the second board retired to the north room of the court house, for the voters, with one or two exceptions, came into the south room and voted from the south room. And evidently all the electors who voted, or offered to vote that day, knew of the existence of both boards. Besides, not only a large majority of all the voters who voted at that election, but a majority of all the voters residing in the city of Anthony, recognized the second board as the legal board, and intrusted their ballots with it. But was said second board legally organized? This is really the most serious question involved in the case. We think it was. Indeed, we think that either board was properly enough organized to be valid if the other board had not been •organized, and yet neither was organized in strict conformity to law. Both were organized too soon. In strict law, no set of “bystanders,” or set of “electors present” at the voting-place on the day of election, has any right to elect the judges of the election until the hour of 8 o’clock in the morning of such day has arrived. (Comp. Laws 1879, §6, p. 188, and §3, p.389.) Up to that hour it is reasonable to suppose that the regular judges of the election will make their .appearance, and will take their places and hold the election. At least, up to that hour they have the right to do so. And if an organization is effected by the bystanders before that time has arrived, any subsequent appearance and offer to act by the regular judges of the election before 8 o’clock would certainly set aside such premature and untimely organization. But suppose that only one'of the’ regular judges should so appear, which one of the judges elected by the bystanders should give place to him? That he would have the right to take the place of some one of such judges, cannot be questioned.- Indeed, any election of judges of election before 8 o’clock in the morning can be at most only provisional; and judges so elected must give place to the regular judges, or to subsequently-elected judges, provided such regular judges, or subsequently-elected judges, appear and demand their places at any time before 8 o’clock in the morning. The bystanders or electors present at an election-place have no right even to vote for judges of the election until the hour of 8 o’clock in the morning shall have arrived. They may elect the judges and organize the board at any time after 8 o’clock in the morning, during the day, but they cannot legally do so before that time. But if they do, if they elect the judges before that time, then the most that can be said in their favor is, that the election of the judges will be treated as valid unless the regular judges subsequently appear at or before 8 o’clock, or another election of judges is had at or before that time. If a second election and second organization is had before 8 o’clock, (and that is this case,) then the first organization must give way to the second, and must be treated as invalid. And the second election, the second organization, and the second election board, will be deemed and held to be legal and valid unless something else transpires to render it invalid. As before stated, there can be but one legal election board at the same time and for the same election precinct.
In the present case, the second organization has many advantages over the first. It was the last organization effected before 8 o’clock in the morning. About twice as many electors participated in effecting the second organization as in the first. A large majority of the electors present when the hour of 8 o’clock arrived (both boards being elected in the same room) were favorable to the second organization, and not to the first. More than twice as many votes were received by the second board as by the first. And a majority of all the legal voters of the city of Anthony recognized the second organization as the legal and valid one, and deposited their ballots w'ith such second organization.
Judgment will be rendered' in favor of the plaintiffs and against the defendants, and a peremptory writ of mandamus awarded.
Horton, C. J., concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought before a justice of the peace under the railroad-stock-killing law of 1874. (Comp. Laws of 1879, pp.784, 785.) The action was for the value of a cow alleged to have been killed by the railway company, and for attorney’s fees and costs. The only pleading in the case filed in the justice’s court by the plaintiff below, Logan McReynolds, was a bill of particulars which did not state or show that the defendant railway company was either guilty of negligence, or that its road was not fenced. The defendant made no appearance in the case, ex-. cept that after judgment in the justice’s court, it appealed the •case to the district court, and after judgment in the district court, it made a case for the supreme court. H. H. Hardingj who was in fact an attorney for the defendant, made a special appearance in the case — not as an attorney for the defendant, but as an amicus curiae only, and moved the'court 'to dismiss the plaintiff’s action. It will be noticed, that with regard to the said defects in the plaintiff’s bill of particulars, this case is like the case of the St. L. & S. F. Rly. Co. v. Byron, ante, p. 350, except that in that case the defendant appeared and objected to the sufficiency of the plaintiff’s bill of particulars, while in this case the defendant made no appearance whatever, except as above mentioned. We think that there is no substantial difference, however, between the two cases in this regard. In the Byron case it was held, that the bill of particulars was fatally defective, and so it must be held in this case, and for the same reason. In the Byron case it was held that, as the defendant objected to the sufficiency of the plaintiff’s bill of particulars before going to trial upon the merits of the'case, by objecting to the introduction of any evidence under such bilji of particulars, it (the defendant) did not waive the defects of such bill of particulars as it might have done if it had gone to trial upon the bill of particulars without any objection thereto, and allowed evidence to be introduced on the trial as though the bill of particulars were perfect in every respect. (K. P. Rly. Co. v. Yanz, 16 Kas. 583, 586.) And it must be held in this case, that' the defendant did not waive auy of the defects in the plaintiff’s bill of particulars,' for it did not make any appearance thereto, or any appearance on the trial. The defendant was, so far as this question is concerned, substantially in default, and its default admitted nothing more than the truth of the facts set forth and alleged in the plaintiff’s bill of particulars. The plaintiff' had no right, on such default, and in the absence of the .defendant, to prove anything not set forth or alleged in his bill of particulars. Nor could he, on such default, i.n tire absence of the defendant, and without notice to it, amend his bill of particulars in any material respect. (L. L. & G. Rld. Co. v. Van Riper, 19 Kas. 317.) Hence the court, below erred in the present case in the following particulars: 1, in allowing the plaintiff to go to trial upon his said defective and insufficient bill of particulars, without any waiver, actual or constructive, on the part of the defendant; 2, in allowing the plaintiff to prove that the defendant’s railway was not fenced; 3, in allowing the plaintiff to amend his bill of particulars so as to claim an additional amount as and for attorney’s fees; 4, and in rendering judgment against the defendant for the value of the cow, and for attorney’s fees and ■ costs.
The judgment of the court below will be reversed.
All the Justices concurring. | [
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The opinion of the court was delivered by
Brewer, J.:
R. Schulenberg & Co. obtained a judgment .against defendant in error, plaintiff below, which they assigned to plaintiff in error, defendant below. Execution was issued upon such judgment, and % vied upon a stock of goods belonging to Shomon. 1 The latter thereupon brought this action to restrain proceedings upon that execution, alleging that the judgment had been fully paid’and discharged. The case was tried by the court without a jury, and findings and judgment were in favor of the plaintiff. The court found specially, that the judgment had been paid before the issue of the execution.
It appears that a Barbour county warrant was received by the attorney of record of Schulenberg & Co., from Shomon, after the entry of judgment. Shomon claimed that the attorney received it as payment pro tanto. The attorney testified that he onlyreceived.it to collect, and to apply the proceeds when collected hpon the judgment. The warrant was never paid, and was doubtless fraudulent and worthless. We shall not stop to consider the contradiction between these witnesses, for we think the judgment must be reversed upon the undisputed facts. There is no pretense that the plaintiffs in the judgment knew of the action of their attorney, authorized or ratified it, or that.he had any special .directions or authority in the matter. He had simply the general authority of an attorney in the collection of a judgment. But this general authority is to receive money only in payment. He can neither sell, assign, or compromise a judgment, nor receive notes, warrants, goods, chattels or land in payment. Receiving a county warrant is simply exchanging a judgment claim against a debtor for a claim against a county. It matters not that the debtor is insolvent and the warrant valid and valuable. The attorney is employed to collect, that is, receive the money due on the judgment; and not to trade the claim for anything although apparently or in fact more valuable. The authorities in this direction are clear and abundant; See among others: 2 Daniel on Neg. Inst., §1245; Chapman v. Cowles, 41 Ala. 103; Wright v. Dailey, 26 Tex. 730; Bradford v. Arnold, 33 Tex. 412; Moye v. Cogdell, 69 N. C. 93; Maddur v. Bevan, 39 Md. 485; Walden v. Bolton, 55 Mo. 405; Spears v. Ledergerber, 56 Mo. 465; Harper v. Harvey, 4 West Va. 539; Maxwell v. Owen, 7 Coldw. (Tenn.) 630; Campbell v. Bailey, 19 La. Ann. 172; Davis v. Lee, 20 La. Ann. 248; Mayer v. Blease, 4 Rich, (S. C.) 10; Carstens v. Barnstorf, 11 Abb. Pr. (N. S.) 442; Beers v. Hendrickson, 45 N. Y. 665; De Mets v. Dagson, 53 N. Y. 635; Marbourg v. Smith, 11 Kas. 554.
The attorney may be personally responsible for any contract which he made, but his clients are not bound by his agreement to receive county warrants or other property in payment of their judgment. Hence, whether the warrant was received according to the agreement as he states it, or as Shomon testifies, is immaterial so far as the satisfaction of the judgment is concerned.
The judgment will therefore 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
Brewer, J.:
Beecher sued the railroad company before a justice on the claim of an express contract on the part of the defendant to pay plaintiff for the charge and care of one George E. Cubitt, plaintiff setting out his claim at $286. The case was tried to a jury, with verdict for plaintiff, and judgment for $137.50. The record is upon a case-made. A demurrer to plaintiff's case was interposed by defendant, which was overruled by the court. After verdict, a motion for a new trial was overruled.
The case, briefly stated, is: George E. Cubitt, plaintiff's step-son, had his foot hurt while working for the defendant, and was sent to plaintiff's home. Hildebrandt, boss of the gang in which he was working, reported the accident by telegraph, from White Cloud, to Spafford, his superintendent, and Col. Towne, general superintendent, at Atchison, who answered by telegrams. Plaintiff claimed to have been employed by such boss after the receipt of these telegrams, and relied upon such express contract.
We think upon the record there may be said to exist three questions: The first one is, whether Hildebrandt made any such contract with plaintiff as was claimed. Hildebrandt positively denied it, while plaintiff as positively affirmed. There was also other testimony. This was a question of fact, with contradictory testimony, and is disposed of, so far as this court is concerned, by the decision below.-
A second question is, whether Hildebrandt had authority to bind the company by any such contract. The evidence of authority was offered in these telegrams. The messages sent by Hildebrandt were as follows:
(No. 1.)
“W. C., Jan. 21.
“ L. K. Spaeeobd, Atchison:
“ George Cubitt got his foot nearly cut off this p. m., with coal bucket. Shall I get doctor for him ? J. D. H.”
(No. 2.).
“White Cloud, Jan. 21, Í879.
“L. W. Towne, Atchison:
“May we send for counsel for physician? J. D. H.”
The answers to these telegrams were respectively as follows:
(No. r.)
“Atchison, Jan. 21, 1879.
“Employ the best doctor there to attend to Mr. Cubitt.
“L. W. Towne.”
(No. 2.)
“Atchison, Jan. 21, 1879.
“J. D. H., White Cloud:
“Yes; employ counsel with physician, and do all you can to save the foot and make him comfortable.
L. W. Towne.”
We think telegram No. 2 from the general superintendent gave authority to make the contract. In reply to an inquiry as to whether to employ counsel with the physician, Hildebrandt is told to employ counsel, and in addition, to do all he can to save the foot and make the patient comfortable. Board and care while suffering from the wound are clearly within the scope of such direction. Indeed, they would seem to be the very matters indicated.
The other question is as to the telegrams. And here we may remark that we are to look at all the testimony, both that offered after the overruling of the demurrer to the evidence as well as that offered before. If, upon all the testimony, the telegrams were properly admitted, it matters not that no sufficient foundation for their admission had been laid before the ruling on the demurrer. (Simpson v. Kimberlin, 12 Kas. 588.) Before the demurrer, plaintiff showed by Hildebrandt that he delivered to the telegraph operator at White Cloud dispatches for Col. Towne, the general superintendent at Atchison, and received from the same operator what appeared to be copies of telegrams in reply. After the ruling on the demurrer, the defendant’s counsel put Hildebrandt on the stand, and showed by him the dispatches forwarded to Col. Towne, and the answers received by him. The witness no longer spoke of copies, but testified to sending dispatches to and receiving answers from Col. Towne. It will scarcely do to say, in view of this latter testimony, that there was not evidence before the jury from which they might find that Col. Towne, the general superintendent, did in fact give Hildebrandt the authority under which he atfted. So that whatever might be thought of the ruling on the demurrer, the verdict upon all the evidence would have to be upheld. But was the ruling on the demurrer erroneous? An émployé on a railroad goes to a telegraph office and sends a dispatch to his superior, and receives from the same operator in a short time what purports to be a reply from the said superior to his dispatch. Upon the strength of such supposed reply, he acts, and makes a contract for the company. In an action upon that contract against the company, is not that reply thus received prima Jade evidence of authority in him to act? It is unnecessary in this case to decide this question, but see upon it the case of Matteson v. Noyes, 25 Ill. 591, and the review of that case in Scott and Jarnagin’s Law of Telegraphs, § 345.
There being no other question in the case, 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 the 2d day of September, 1879, the plaintiff in error presented its motion and affidavit to the probate judge of Saline county for an order requiring the defendant in error and one Henry Bailey to appear and answer concerning his property as provided for in § 482 of the code. On the same day, the probate judge issued the following order:
(Court,' and Title.) “And now, on this 2d day of September, A. D. 1879, came the plaintiff above named, and thereupon plaintiff’s motion for an order to require the said defendants above named to appear and answer concerning said defendants’ property came up for hearing before me, Jonathan Weaver, probate judge, within and for Saline county, Kansas; and after hearing the evidence, I do find that said plaintiff did obtain a judgment before R. H. Bishop, a justice of the peace for the city of Salina and Saline county, in Kansas, on the 31st day of January, 1879, for the sum of $89.60, debt, and $6.55, costs, which judgment by law bears interest at the rate of 10 per cent, per annum; that á transcript of said judgment was filed in the office of the clerk of the district court of the county of Saline, aforesaid, and thereupon the said case and judgment were by the clerk of the district court of said county duly entered on the appearance and judgment dockets of said court; that execution against said defendants has been issued on said judgment from said district court of said county by the clerk thereof to the sheriff of said Saline county, and returned wholly unsatisfied; that increased costs have accrued on said judgment in the sum of $10.05. It is therefore ordered by said court above named, that said A. C. Wait and Henry Bailey do be and appear personally before said court, at the probate court room in the said county of Saline, on the 12th day of September, A. D. 1879, at 10 o’clock A. M. of said day, and answer concerning their property before said judge.
“Given under my hand, this second day of September, A. D. 1879. • Jonathan Weaver,
Probate Judge.
“The State of Kansas, to the Sheriff of Saline County: Process is here issued to you on the order above set forth, to be served as a summons in other cases.
“ Witness my hand and the seal of the probate court of Saline county, this second day of September, A. D. 1879.
“Jonathan Weaver,
[seal.] “Cleric of Probate Court.”
The order Avas personally served upon defendant, A. C. Wait, on September 3d, 1879. On the 12th day of September, 1879, the parties appeared before the probate judge, and the defendant, Wait, presented a written motion to set aside the order for his examination. It set forth the following causes:
“1. That the order heretofore issued in this cause for the examination of defendant was improvidently and illegally issued.
“2. That said order was issued in violation of law.
“ 3. That the probate court of Saline county has no jurisdiction in said case.
“4. That said proceedings are in violation of law.”
After hearing the motion, the probate judge entered the folloAving order:
“ Said motion came on for hearing, and after due consideration of the law and authorities cited by counsel, and the court being fully satisfied in the premises, it is now ordered by the court that said motion be and the same is hereby sustained, and said proceedings are now dismissed Avithout prejudice, and the costs of this proceeding ordered and adjudged to be paid by plaintiff, and the same taxed at $3.65, sheriff’s fees; probate court fees, $4.95. Total costs in this proceeding, $8.60.”
Plaintiff duly excepted, and filed its bill of exceptions showing that no evidence was offered before the probate judge upon the hearing. Thereafter, the plaintiff carried the case to the district court of Saline county, upon a petition in error to reverse the judgment. On the 24th day of'November, 1879> the district court overruled the petition in error and affirmed the order complained of. Plaintiff again excepted, and now brings the case here.
It appears from the record that the district court affirmed the order of dismissal on the ground “that the probate court had no jurisdiction in the case; that the probate judge only, and not the probate court, had jurisdiction and authority to act in proceedings in aid of execution under the code.” We are of opinion that the judgment of affirmance by the district court was error. It is true that the words “probate court” were used in several places in the motion, affidavit and order for examination, in place of the words “probate judge,” yet it appears that the application and affidavit were filed with the probate judge; that the probate judge found the statements in such application to be true, and issued the order requiring the debtor to appear for examination, with his signature as probate judge attached. As the probate court in Kansas consists of one single judge, and this judge is the probate judge, an application to a probate court for an order of examination is really an application to the probate judge of the probate court, and an order to appear and answer before a probate court concerning one’s property is virtually an order to appear and answer before the probate judge of the probate court. Therefore, the words “probate court,” as used in the record, are nearly synonymous with probate judge. Whenever the judge is present, the whole court is present, clerk and all. The probate court is always the probate judge. While the probate court has larger powers than the probate judge, it includes those of the probate judge. The greater includes the less.
Instead of dismissing the proceedings pending before him, the probate judge should have required the debtor to have answered concerning his property, and in all the subsequent proceedings, instead of using the phrase “probate court,” probate judge should have been adopted. Correctly speaking, such proceedings are to be heard only before a probate judge, but the occasional use of the words “probate court” and “said court,” in the application and order, were not fatal to the jurisdiction of the probate judge. The error was an immaterial one.
The judgment of the district court must be reversed, and the case remanded for further proceedings.
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The opinion of the court was delivered by
Horton, C. J.:
On November 9, 1874, the Osage City Savings Bank commenced an action against J. M. McNeill, in the district court of Osage county, setting forth in its petition a cause of action upon a certain promissory note, dated June 12, 1874, of the sum of $209, payable ninety days after date, to the Osage City Savings Bank, and executed by said McNeill. The summons issued in the case was returned on the 13th day of November, 1874, with the following indorsements thereon :_
“Sheriff’s Office, Osage County, Kansas.
“Received the within summons the 9th day of November, A. D. 1874, at 10 o’clock A. m., and served the same on the following within-named J. M. McNeill, on the 11-th day of Nov., A. D. 1874, by leaving a certified copy of the within summons, with all the indorsements thereon, at his usual place of residence. J. S. Edie, Sheriff of Osage County.
“By S. H. Rambo, Deputy Sheriff.
“Fees: Service and return, 50c.; mileage, $2.”
Afterward, and on the 22d day of May, 1875, the bank recovered a personal judgment against said McNeill, for the full amount claimed, and all costs. Thereon an execution was issued, and delivered to John S. Edie, as sheriff, who levied upon a large amount of property belonging to McNeill. On the 9th of August, 1875, and while the execution was still in the hands of the sheriff, the said J. M. McNeill instituted his action against the Osage City Savings Bank and John S. Edie, to restrain the collection of the judgment and the enforcement of the execution, on the ground that the judgment was rendered without notice, and is therefore absolutely void. Among other things contained in the petition, it was stated, that said McNeill is, and ever since the 5th day of June, 1874, has been, a non-resident of the state of Kansas; that ever since the 5th day of June, 1874, he has resided in the city of "Washington, in the district of Columbia, and that during all of said time his only business and only place of business has been in the said city of Washington; that dur ing that time he has had no usual place of residence in the state of Kansas, and at the time of the pretended service of summons on him, he was at his residence and place of business in the said city of Washington; that he had no notice of the pendency of said action of the bank against him, and knew nothing of such proceeding until about the first of August, 1875.
On the 21st of August, 1875, the sheriff and the bank filed a joint demurrer to the petition, upon the ground that it did not state facts sufficient to constitute a cause of action. At the November term of the district court for 1875, the court sustained the demurrer of defendants. The plaintiff excepted, and brings the case here.
The questions presented are: Whether, upon the allegations of the petition, the judgment is void? and, if so, has the plaintiff a remedy by injunction?
To answer these questions in the affirmative, we need only refer to the previous adjudications of this court. These decisions have settled the law in this state to be, that a personal judgment, rendered without notice to the defendant, is rendered without jurisdiction, and is consequently void; (Case v. Hannahs, 2 Kas. 490, 496; K. P. Rly. Co. v. Streeter, 8 Kas. 133; Butcher v. Bank, 2 Kas. 70;) that an officer’s return of service of original process may be impeached in a direct proceeding after judgment, where the return states facts (as in this case) which do not come within the personal knowledge of the officer; (Bond v. Wilson, 8 Kas. 229; Chambers v. Bridge Manufactory, 16 Kas. 270; Hanson v. Wolcott, 19 Kas. 207;) that an action to perpetually enjoin a judgment is a direct attack upon the judgment; (Mastin v. Gray, 19 Kas. 458;) and finally, that an action may be maintained to enjoin the enforcement óf a void judgment, notwithstanding the judgment appears to be valid and regular upon its face; (Chambers v. Bridge Manufactory, 16 Kas. 270; Mastin v. Gray, supra.)
In view of these decisions of this court, it is clear that there is error in the record.
The order and judgment of the district court will be reversed, and the case remanded with directions to overrule the demurrer of defendants.
All the Justices concurring. | [
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The opinion of the court was. delivered by
Horton, C. J.:
The bond upon which suit was brought, as ■shown by the record, was executed Oct. 25th, 1873, by George D. Munger and bis sureties, to the state of Kansas, conditioned for the honest and faithful discharge of the official duties of .said Munger, as treasurer of Harvey county, in collecting and paying over all moneys, according to law, that should come into his hands by virtue of his office.
The first question presented for our consideration is, whether the board of county commissioners is authorized to maintain an action against the county treasurer and his sureties, on the treasurer’s official bond to recover any funds other than those belonging to the county and state?
In the case of Comm’rs of Jackson Co. v. Craft, 6 Kas. 145, it was held that the board of county commissioners might sue for all delinquencies. The opinion in that case shows that Craft Held his office from January 8th, 1864, to January 9th, 1866; that the suit was commenced September 10th, 1866. At that time, the county treasurer’s bond was given to “The Board of County Commissioners,” (Comp. Laws 1862, p.428, §104,) in which name counties sue and are sued. Within the provisions of § 28 of the code, (then § 34, Comp. Laws 1862, p.129,) providing that a person with whom, or in whose name, a contract is made for the benefit of another, may bring an action without joining with him the person for whose benefit it is prosecuted, the decision of the Comm’rs v. Craft, supra, was indisputably correct. In the general revision' of the statutes by the legislature in 1868, for some reason or other it was deemed wise to change the obligee of county treasurers’ bonds. Sec. 61, General Statutes of 1868, p. 268, (Comp. Laws 1879, p. 283, § 61,) prescribes that each county treasurer shall, before he enters upon the discharge of his duties, execute to the state of Kansas his official bond. In view of the statutory change in the obligee of bonds of this character, and the absence of any express authority in the statute for the board of county commissioners to sue for all moneys, whether belonging to the state, county, township, .school district, or other fund, we are of the opinion that under § 28 of the code, the action in the court below for the recovery of the alleged defaults and deficits belonging to the various funds received by M.unger as county treasurer, cannot be maintained in the name of the board of county commissioners ■of the county of Harvey. The statute does authorize, however, the action to be brought in the name of the state, the •obligee named in the bond, for all such delinquencies.
As the statute (Comp. Laws 1879, p.959, §102) makes each county responsible- to the state for the full amount of the taxes levied by law for state purposes, the court below properly held that for the recovery of the state and county funds, the board of county commissioners could rightfully maintain the suit; but as no similar provision of law exists as to the other funds mentioned in the amended petition, the allegations concerning township, school district, and like sums, were irrelevant. The conclusion that an action to recover delinquencies on a county treasurer’s bond in the name of the board of county commissioners must be confined to the state and county funds, need not tend toward producing a multiplicity of suits, as under the statute the state may sue for all the funds, and all moneys in this way may be restored to the treasury when collected. Then, again, county attorneys are possessed of full authority in such matters, to sue in the name of the state within their respective counties, and therefore can as well prosecute actions to recover the whole •of any official delinquency in the name of the state, as in the name of the board of county commissioners. (The State v. Faulkner, 20 Kas. 541; The State v. Comm’rs of Marion Co., 21 Kas. 419.) So it cannot be said that the state, counties, cities, towns and school districts must necessarily sue, each tor its own portion of the funds, for such delinquency. In this very case, the necessity of prosecuting this proceeding might probably have been avoided, if, instead of standing by the petition, the plaintiff had obtained leave of the court to amend by substituting the state of Kansas as plaintiff. If the counsel of plaintiff believes he has merits in his demand for the recovery of the funds stricken out of the petition, he-can yet ask leave to make such amendment. (City of Atchison v. Twine, 9 Kas. 350; Hanlin v. Baxter, 20 Kas. 134; Paola Town Co. v. Krutz, 22 Kas. 725.) Our attention has been-particularly called to the case of Comm’rs of Mower Co. v. Smith, 22 Minn. 97. We have examined the case carefully, but think that, owing to the provisions of the statutes of' Minnesota differing from those of our state, the case is not conclusive against the views herein indicated.
In regard to the second question submitted: We think that the court erred in requiring the plaintiff to amend its-petition so as to show how much of the state and county funds-had been received and disbursed by Munger before the execution of the bond sued on. It is true that the bond has no-retroactive effect, and does not cover past -delinquencies. It is likewise true, that the sureties are only liable for moneys in the hands of Munger at the date of the execution of the-bond, and for moneys received by him subsequently to the date of the bond, and before the expiration of his term; but the moneys disbursed must be alleged as a defense, and need not be pleaded by the plaintiff. Again, the allegations in the-petition are, that at the time of the expiration of the term of office of Munger, as treasurer, he had in his hands of the-moneys so collected and received, $13,708.37, and that he neglects and refuses to turn over or account for, to his successor-in office, the said sum of $13,708.37, belonging to the treasury of Harvey county, and these allegations are sufficiently definite and certain.
The case will be remanded to the court below, with directions that if no application is made to amend the petition by substituting the state of Kansas as plaintiff, that the order of the court sustaining the motion to strike from the petition-all allegations of demands against defendants, for other than state and county funds, be affirmed, and the order of the court. requiring the petition to be amended so as to show how much money was received and disbursed by Munger prior to the execution of the bond be overruled. The costs will, in any event, be divided between the parties.
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The opinion of the court was delivered by
Brewer, J.:
This is a case in which to a charge of conduct unprofessional and dishonest, the defendant pleads the statute of limitations as the single barrier to plaintiff’s right to relief. The facts are these: In 1874, plaintiff was an accommodation indorser upon a note executed to the brother of defendant, but which in fact belonged to defendant. Suit was brought upon this note. Pending the suit, at the request of defendant, plaintiff paid him several hundred dollars, upon his promise to credit that amount upon the claim, and take judgment for only the balance. There being no defense, no answer had been interposed. Notwithstanding the receipt of the money and the agreement, defendant took judgment for the whole amount due upon the face of the paper. The maker being insolvent, the principal burden of payment rested upon the plaintiff. Soon after the entry of judgment, plaintiff ascertained that it had been entered for the wrong amount, and spoke about it to defendant, who promised to make the correction, and allow the prior payment in the final settlement of the judgment. Payments were made from time to time, and the defendant frequently repeated his promise. This ran along until over four years had passed, when defendant refused to credit that payment, and demanded the full balance due upon the face of the judgment. True, defendant offered to credit the payment, provided plaintiff would pay an exorbitant, illegal and usurious interest, to wit, 18 per cent, per annum, but the condition was simply a different manner of expressing the refusal.' Thereupon plaintiff, after payment of all save a sum equal to the amount paid before judgment and improperly incorporated in it, brought injunction to stay the further collection. Upon these facts alone plaintiff does not question the sufficiency of the statute of limitations as a defense. He knew of the wrong shortly after its perpetration, and for many years took no legal measures to redress it. His action was one for relief on the ground of fraud, and he did not commence it within two years from the discovery of the fraud. (Young v. Whittenhall, 15 Kas. 579.)
But the contention is, that this is a peculiar case — that other facts appear which excuse plaintiff’s delay, and give him a right to relief, notwithstanding the lapse of time. These facts are, that defendant was the attorney of the Kansas Loan and Trust Company, of which plaintiff was president, and, to quote from the petition, “That on account of such relationship, the said F. G. Hentig occupied a very close and confidential business relation with this plaintiff, occupying the same office as the Kansas Loan arid Trust Company, and as this plaintiff did; that for some years previous there were intimate relations in financial transactions between said F. G. Hentig and this plaintiff, and said Hentig, on account of these associations and transactions, had been and was a confidential adviser of this plaintiff; and said plaintiff further avers that on account of said intimate and confidential relationship existing between said F. G. Hentig and this plaintiff, that said plaintiff had a right to and did rely upon the representations made by the said F. G. Hentig, that said payment so as aforesaid made would be credited upon the judgment rendered in said action, and that on account of such reliance this plaintiff did not move to set aside said judgment and have said credit allowed. And said plaintiff further avers and believes that said Hentig made the representations heretofore set up, and used his confidential relation with the intent to mislead this plaintiff and to defraud him of his rights in the premises, and to prevent said plaintiff from having said judgment opened up and set aside.”
Do these facts take the case out of the general rule? They doubtless paint with a deeper shade of black the moral qualities of defendant’s acts, but do they prolong or increase plaintiff’s legal or equitable rights? The question is not, ought the defendant to suffer for his misdeeds, for in all cases of fraud the wrong-doer deserves punishment, no mat ter when the fraud was committed. But may the plaintiff, who knows of a wrong committed upon him, excuse his delay in seeking redress by the wrong-doer’s promises to repair the wrong, and the intimate personal relations subsisting between himself and such wrong-doer? We do not understand that the defendant was the attorney of plaintiff, and certainly not in this transaction. He was the attorney of a company of which plaintiff was president; they occupied the same office, had intimate personal and business relations, and in business transactions defendant was his confidential adviser. In the particular matter in dispute their interests were opposed, yet because of their intimacy in other matters, plaintiff relied upon defendant’s promises to rectify the wrong. There was •no trust relationship in this transaction. Each knew that in this they occupied antagonistic positions. Yet generally they were intimate friends. The plaintiff trusted his friend, and that friend betrayed him. We wish that we could see our way clear to interpose the strong arm of the law, and give (redress. But we cannot see anything to justify us in declaring this outside the general rule. Take an illustration or two: Suppose defendant owed plaintiff on a note or account; because of their intimate personal relations, plaintiff delays .suit, trusting to defendant’s repeated parol promises to pay, till the statute of limitations has run; can the courts, because of defendant’s perfidy, disregard the statute, and enforce •the collection? Or, suppose the defendant, as attorney for plaintiff, had collected money for his client: could the client, .aware of this collection, through friendship, delay proceedings, .and still get around the statute? Though wrong and injusttice may result in individual cases, yet public policy upholds this statute of repose. Exceptions must rest upon some •established principles; and a mere betrayal of friendship, a breach of obligations resting upon intimate business relations •outside of the particular transaction, is not sufficient to establish an exception. Even in criminal prosecutions, time is an •essential factor — no less so in the enforcement of civil rights. And while we regret the result, we can only say, ita lex scripta est.
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 defendant in error on July 1st, 1879, to quiet title to a certain tract of land in Cowley county. In his petition,- he alleged that he was the owner in fee, and in the possession of the land under a tax deed executed and filed for record September 9th, 1878. The petition further alleged that the plaintiff in error set up an adverse interest. On July 30th, 1879, the plaintiff in error filed his answer, which contained, among other allegations, the following:
“That the board of commissioners of Cowley county, on behalf of the county, on April 15th, 1875, entered into a written contract with one James Kelly to publish in the Winfield Courier the delinquent tax list for 1874, at the rate of eight cents per tract of land; that under said agreement the county board paid Kelly only eight cents per tract, and that the county treasurer collected the sum of twenty-five cents for each tract, including the one in controversy.”
The defendant in error demurred to this defense, and to the other parts of the answer. At the August term of the court for 1879, the court sustained the demurrer. The plaintiff in error, electing to stand by the answer, had judgment entered against him. He brings the case to this court.
The answer is somewhat inartistically drawn, but it fairly, we think, presents the questions, whether the county can legally collect a larger sum for advertising a tract of land in a delinquent tax list than it pays to the publisher? — and, if it cannot, whether a tax deed founded upon a sale including a sum in substantial excess of the actual costs for advertising will be adjudged invalid and set aside, if challenged before the running of the statute of limitations? The first inquiry is disposed of by the case of Quigley v. Comm’rs of Sumner Co., ante, p. 293. In the opinion in that case, Mr. Justice Brewer, speaking for the court, says: “If the county pays only five cents a tract for advertising, the treasurer should charge that amount only against the tract. This not only harmonizes the statutes, but gives force to the different words employed in §109, Comp. Laws 1879, p. 960.” To this we may add, that the collection of a large sum as costs for advertising in excess of the actual compensation allowed, and the payment of such excess into the treasury for the use of the county, or the retention of the excess by the county treasurer, ds illegal, in violation of the statute, and without warrant of law. Only the costs, i. e., the actual costs of advertising, are a legal charge.
As the sale of the land was for a sum in substantial excess of the legal costs, the sale was invalid, and the deed must be adjudged defective. We use the words “in substantial excess” in comparison with the total amount of the actual costs. The fee paid the printer was eight cents. The fee charged and collected was seventeen — more than twice the legal fees.
In Huse v. Merriam, 2 Greenl. 375, it was insisted that the proceeding was invalid, because the assessor had exceeded the levy by eighty-seven cents in an assessment of $215. The claim was sustained, and the assessment held void. In McLaughlin v. Thompson, 55 Ill. 249, it was decided that if any part of the tax, however small, is illegal, the sale is void, for the maxim de minimis non curat lex does not apply to the sales of land for taxes. In Wells v. Burbank, 17 N. H. 393, an excess of nine cents on the assessment was held to vitiate the tax. In the late case of Gukil v. Kirby Carpenter Co., (U. S. Ct. Ct., E. D., of Wisconsin — Reporter, vol. 9, No. 2, p. 37,) Drummond, J., in delivering the opinion of the court, said:
“If a tax deed which was offered in evidence is valid, then the judgment must be for the plaintiff; if invalid, the judgment will be for the defendant. . . . The objection is, that the land was sold for that which was not a tax, This objection we sustain, (I must say with a good deal of hesitation on my part.) The facts in relation to that objection are these: There was a certain amount assessed against each tract of land for the tax due upon it less than the amount for which it was sold. It was a small sum added, (only five cents,) but it clearly appears that under no circumstances could this sum be added, under any law of the state, to the taxes, and included within the amount for which the land was sold. And we hold that that circumstance rendered the sale void, as there was included in the amount something for which the officer had not the right to sell the land.”
We might extend these authorities, but we deem it unnec essary. Whatever may be the rule where a trifling mistake-may have occurred in the calculation, or' may have been occasioned by an error in making or copying the figures, or in carrying out the various amounts, we think the great weight of authority is to the effect that, where it is plainly the purpose of the officer to include illegal sums within the amount-for which land is sold for taxes, and the sale includes the-illegal sums, that circumstance renders the sale void. It has-been the practice for counties in this state to contract with printers at less than legal rates for publishing delinquent tax lists, and for the county treasurers to collect the maximum legal fees, regardless of the actual costs. It has been supposed by the county officials, that this plan was in the interest, of retrenchment and economy; the purpose being to pay the excess collected into the county treasury, and thereby save the people so much taxation. The statute permits contracts at less than legal rates, but the benefits arising from the reduction in fees must inure to the tax-payers. These-parties cannot be made to pay, by redemption or otherwise, more than the printers receive; therefore, the county is not. entitled to the excess, and the saving obtained is to the delinquent tax-payer, and not to the people generally. As, however, the costs of selling real estate for taxes ought to be reduced to the lowest possible rates, we see no objection to-counties continuing to make contracts with printers at less-than statutory fees, notwitstanding the people generally derive no benefit therefrom, provided due regard is had to-the publication of the lists in papers of wide circulation. Publicity is of paramount importance to a reduction of the-fees. It is the duty of county boards to comply with the-spirit, as well as the letter of the law, and getting up competition to have the tax lists published at low rates, whether the paper doing the work has any circulation or not, violates-the purpose of the statute. One object in advertising tax sales is, to give full notice to the land-owner, and furnish him with every facility for the voluntary payment of the-tax. before a resort is had to coercive means: and another.. equally beneficial to him, is, to create competition at the sale, and prevent his entire estate from'being sacrificed for a trifling sum compared with its real value, when the sale of a less quantity might have been made if a spirited competition had existed. The wider the circulation of the paper, the greater will be the competition at the biddings. (Blackwell on Tax Titles, 4th ed., 239.) Where contracts are made with printers at reduced rates, only the fees paid can be charged, and the county treasurers can collect only those fees at tax sales.
The order and judgment of the district court will be reversed, and the case remanded with direction to overrule the demurrer of defendant in error.
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The opinion of the court was delivered by
Brewer, J.:
The firm of Bennett, Carter & Co., plaintiffs in error, (plaintiffs below,) brought suit in Bourbon county, Kansas, against the firm of Wm. Wolverton & Co., upon a book account of about $1,800. Both Bennett, Carter & Co. and Wm. Wolverton & Co. were' non-residents- of Kansas. Certain lands in Bourbon and Linn counties, Kansas, were attached;, publication summons was had; Wolverton & Co. made no appearance, and at the December term of the district court of Bourbon county, 1878, the case stood in default. Before any judgment was rendered in the case, Reuben Laycock filed what is denominated by the Session Laws of 1877, ch. 137, p. 187, an interplea. This interplea, filed December 16, 1878, alleged that Reuben Laycock was the “owner in fee” of the lands attached, describing them, and concluded with the following prayer: “ Wherefore, he asks that his rights in the same may be determined and adjudicated by this court, and that said property be discharged from said attachment, and he may recover his costs of the plaintiffs herein.”
No judgment has ever been rendered in the original action against Wolverton & Co. The land attached was an undivided half-interest in 320 acres in Bourbon county and an undivided half-interest in 800 acres in Linn county, (attached by order issuing from Bourbon county.) To the interplea the plaintiffs answered with a general denial; and further, that the said Laycoek claimed under two deeds from defendant Wolverton, who was the former owner, and that said deeds were fraudulently made, setting up the facts, and that Lay-cock had never been in possession of the land. A trial was had upon the interplea, by the court without a jury, and special findings of fact were made. By the findings, the land was discharged from the attachment; the title thereto quieted in the said interpleader; the title of the interpleader pronounced a fee simple absolute; and judgment for costs awarded against the plaintiffs. A motion to set aside the findings and judgment, and for a new trial, was duly filed, overruled, and exceptions taken.
, Three or four questions are presented by counsel for our consideration. And first, it is claimed that the act under which these proceedings were had is unconstitutional in this, that the subject is not clearly expressed in the title. The title is, “An act supplemental to an act entitled 'An act to establish a code of civil procedure/ being an act to provide for interpleas in certain cases,” and the act provides that any person claiming property, money, etc., attached, may inter-plead in the cause. The argument is, that the proceeding is exactly the opposite of an interplea. We quote from counsel’s brief: “An interplea is a claim that the pleader making it, does not own the property in controversy, and that one of two other persons does own it. ' The case at bar is, that the pleader does own the property, and that neither one of the two other persons owns it. The action which the legislature designed is just exactly the opposite of an interplea. (See Abbott’s and Bouvier’s Diets., Interplea.)”
We think counsel is mistaken. At the common law it may be true that the intervention of a third party was at the instance of the defendant, and in this respect the interpleader of the common law differs from the intervention of the civil law, which was at the instance of the third party who claimed an interest adversely to both parties to the suit. But still the idea of interpleading was that some one beside the parties to the original action claimed rights in the property, and he was called upon to assert his rights or forfeit them. At law, a defendant sued might disclaim, and call upon this third party to assert his rights. In equity, a party having a fund or other property in his hands might summon the various claimants thereto to litigate their several rights. In each case the idea was of casting the litigation upon other parties than the one moving for the interplea. Now this statute, recognizing the underlying idea, simply provides for the practice which shall govern. Instead of leaving the option to the defendant, it gives to a party claiming rights the privilege on his own motion of coming into the cause and asserting those rights. It thus incorporates a wholesome provision of the practice under the civil law. But this change of practice does not destroy the substance of the proceeding. It is still interpleading.
Again, it is urged that the old doctrine of interpleading applied simply to personal property, and involved a disclaimer by the party moving for the interplea of any rights of his own, while here real estate alone is attached and the defendant makes no disclaimer. The statute reads that “any person claiming property, money, effects or credits attached, may interplead in the cause,” etc. Now the word property in its ordinary acceptation includes all property, both real and personal. By statute it is made equally inclusive. (Comp. Laws 3879, p. 920, §1, clause 30.) When used by the legislature it should therefore receive this meaning, unless the context indicates its use in a different and more limited sense. It may be said that an interplea is unnecessary as to real estate, that the property cannot be removed beyond the jurisdiction of the court, and that a decree bars no rights but those of the parties to the action. The interpleader may without interplea protect his rights against any pretense of title conveyed by a decree to which he is not a party. This doubtless is true, and yet an inter-pleader may desire and may be benefited by a decree declaring his rights before the close of the pending litigation. The litigation, even though it casts no legal cloud upon his title, will often prevent his sale of the property or his obtaining upon a sale the full value. While his legal rights may not be disturbed, the actual present value of the property to him may be reduced. The fact that other remedies may be open to him is no reason for limiting the ordinary and statutory meaning of language to deprive him of this remedy. This very case illustrates the thought. The pendency of these attachment proceedings would naturally interfere with sales. A purchaser would look to the contingency of a law suit, and would reduce his bid by his estimate of the cost and risk of such law suit. By this act the legislature has provided a speedy remedy, aud we ought not to restrict the scope of the statute on the theory that without it the party has another remedy. That no disclaimer is made by plaintiff or defendant, is no ground for limiting his right to protection. The statute makes no disclaimer essential, but gives to the interpleader an absolute right to intervene for his own protection.
Another objection is, that a trial by jury was refused. But the statute gives a right to a jury only in “actions for the recovery of money or of specific real or personal property.” (Comp. Laws 1879, p. 636, § 266.) This was neither, but rather a proceeding in the nature of an action to quiet title. (McCardell v. McNay, 17 Kas. 433.)
A final allegation of error is, that the findings and conclusion of the court are against the weight of evidence. The undisputed facts are, that in 1873, the defendants borrowed $1,000 of a party named Chambers, and that Laycock, the interpleader, signed the note therefor as security; that this loan was continued, and was still in existence at the time of the trial herein; that in November, 1877, defendant Wolverton deeded these lands to Laycock. The only question is, whether this conveyance, absolute upon its face, was in fact absolute, or in the nature of a mortgage and as security. Upon this question the testimony is substantially in deposition, and therefore is reviewable by us with less presumption in favor of the conclusion of the district court. We have examined this testimony with care, and are compelled to differ from the learned judge who tried this case. It seems to us that this conveyance was only as security to Laycock, and was so understood and intended by the parties. It would unnecessarily prolong this opinion, to recapitulate the testimony. Some salient points may be noticed. The debt to Chambers has not been paid. Wolverton has not been released, nor any change in liability proposed to or accepted by Chambers. Laycock 'admits having told Wolverton, a few months after receiving the conveyance, that if he would find a purchaser, he might have all he obtained over and above this debt. This intervention in the suit was commenced without any actual knowledge thereof by Lay-cock, but at the instance of Wolverton, under the general direction of Laycock that he must look after the matter, and with the expectation that he would pay all expenses, including the attorney’s fees. He made no inquiries of any one but Wolverton as to the value of the land before receiving the conveyance, and that although he was personally acquainted with the owner of the other undivided half. Two witnesses testify that he spoke of receiving this land as security. Indeed, his whole conduct by his own testimony is not that of a man who had become and is the absolute owner of property situate at a remote distance, and by the care or sale, of which he hopes to make profit, but rather of one who has taken a conveyance of such property as security, and looks to the debtor and owner to protect the interests of both. It seems to us clear, upon the showing in this case, that if Wolverton should tender to Laycock the amount of Cham bers’s debt and interest, a court of equity, looking back of the-form of the substance of the transaction, would be compelled to hold this conveyance to have been only in the nature of a mortgage and as security, and to decree a reconveyance. Wolverton’s creditors have equal rights. His conveyance,, a mortgage so far as he is concerned, is only a mortgage-so far as they are concerned. ,
Counsel for defendants in error contend that no issue was-raised by the pleadings as to whether this conveyance was a mortgage; that the only issue was, whether it was fraudulent- or not. Hence they claim that as the testimony does not-show the transaction fraudulent, the judgment must be affirmed. We do not so understand the scope of the pleadings-The general allegation in the interplea is, that the inter-pleader is the owner in fee of the lands attached,. The-answer is, a general denial, and an allegation that the conveyance was fraudulent. The evident purpose of the testimony was to show that this conveyance was only as security, and no attempt was made to deny the fact of Wolverton’s indebtedness to Chambers, or that Laycock was indorser on the note. The findings of the court are, that the interpleaderholds the title in fee simple absolute, and the decree discharges the land from the attachment. We think, under the-general allegations of the pleadings, testimony was competent to show that this conveyance apparently in fee was only in fact a mortgage, and that the grantor had an equity in the-lands which could be reached and sold under an attachment.
There being no other question in the case, the judgment-of the district court will be reversed, and the case remanded for a new trial upon the interplea.
All the Justices concurring. | [
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The opinion of the court was delivered by
Valentine, J.:
This case was originally submitted to this court on the written briefs of counsel, without any oral argument being made. The brief for the state is immaterial. The briefs for the defendant are as follows (court and title-omitted ):
“Defendant was sentenced as for murder in the first degree,, on a verdict of ‘guilty as charged.’ We cite 8 Kas. 447, but more especially 7 Kas. 143, as conclusive. The defendant has already had a valid trial, and the verdict is not a nullity. It will support a sentence. Otherwise, habeas eorpus would lie.
“We ask that he be remanded to receive the highest sentence necessarily intended by the jury, viz.: manslaughter in the fourth degree. The jury must have intended this much; ■they may have intended more, and they may not.
Cates & Keplinger.”
[Court and title omitted.) “The indictment in this case charged the defendant with murder in the first degree, and therefore charged him with all the different degrees of felonious homicide, including murder in the first and second degrees. The verdict of the jury found him guilty in manner and form as charged. The court sentenced him to suffer the penalty affixed to murder in the first degree, and rendered judgment for murder in the first degree against him. We contend that the judgment of the court below was erroneous, and cite, The State v. Reddick, 7 Kas., and authorities therein cited; Crim. Code, §239; 17 Kas. 402; 7 Iowa, 236; 58 Me. 564; 3 Ohio St. 89, 101; 16 Ala. 781; 17 Ala. 618; 9 Yerg. 279; 7 Yerg. 279.
Murray & Smith,
Attorneys for Defendant.”
Upon the record and the briefs of counsel, the court decided the case, affirming the judgment of the court below, and the following opinion of the court, and dissenting opinion of the Chief Justice, were filed in the case, to wit:
'“ The opinion of the court was delivered by
“ Valentine,-J.: The defendant was prosecuted on an information for murder in the first degree. The jury found the defendant guilty, by a verdict in the following form (omitting title), to wit:
!‘We, the jury, find the defendant guilty in manner and form as charged in the information.’
“The defendant was sentenced by the court as for murder in the first degree. No motion was made for a new trial, or in arrest of judgment, but the defendant duly excepted to the sentence imposed upon him, on the ground that the verdict was not sufficient to sustain such a sentence. And whether the verdict is sufficient or not, is the only question now presented to this court. That such a verdict is insufficient and voidable when attacked by a motion for a new trial,' has long ago been held by this court. [The State v. Reddick, 7 Kas. 143, 154; The State v. Huber, 8 Kas. 447.) But whether it is insufficient if not attacked by motion for a new trial, or whether it is absolutely void or not, and if not void, what sentence should be pronounced upon it, has never before been presented to this court. • In prior cases this court may have spoken -of such a verdict as though it were void; but the language was of course used with reference to. the circumstances of the particular case then under consideration; and the judgment of this court in the case or cases formerly before it was rendered as though the verdict were not void. The judgment of this court in such case or cases was, that the defendant should have a new trial. But if the verdict in such case or cases was void (absolutely and in fact), then the defendant was virtually acquitted ; for as he had already been once in jeopardy, he could not again be put in jeopardy. If he had been once acquitted of the offense in any form, either by the direct or unmistakable avowal of the verdict, of by its indirect and implied legal effect, he could not afterward waive such acquittal, nor could the court set it aside, so that he might again be tried or might again be put in jeopardy. A defendant can never be twice put in jeopardy for the same offense, except with his own consent, and he cannot consent, except where he is to gain some legal benefit or advantage by such consent. He can consent to a new trial or to being again put in jeopardy for the purpose of having a valid verdict against him set aside, for by such a thing he gains a legal advantage. But he cannot consent to a new trial or to being again put in jeopardy in order to procure the setting aside of a void verdict, for by such a thing he derives no legal benefit whatever.
“We must, then, not consider said verdict as void, but as valid; and then comes the question, What does it mean? What sentence, if any, should be pronounced upon it? We cannot, of course, grant a new trial, for the defendant does not ask for such a thing, and we cannot again place him in jeopardy against his consent. We must therefore construe the verdict as best we can, and determine what sentence, if any, it will require.
“Now as the information clearly charged the defendant with being guilty of murder in the first degree, and.as the jury in their verdict “find the defendant guilty in manner and form as charged in the information,” there can be but little doubt as to what the jury intended, or as to what the verdict means. But the court also charged the jury, previously to their finding their verdict, that if they found the defendant guilty of murder in the first degree, the form of their verdict should be j ust such as the j ury afterward in fact used. And the court also gave the jury a written form of verdict for murder in the second degree, and also for each degree of manslaughter. This makes it clear beyond all doubt what the jury intended to find, and what they did in fact find. They in fact found the defendant guilty of murder in the first degree. • As the defendant did not ask for a new trial, the court did not err in sentencing him as for murder in the first degree. The defendant waived the irregularity in the form of the verdict, by not asking for a new trial.
“Before closing this opinion, we might say that we adhere strictly to the former decisions of this court with reference to verdicts in murder cases, but we do not think that such decisions control this case.
“The judgment of the court below will be affirmed.
“Brewer, J., concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
The defendants in this case were tried, convicted and sentenced on a charge of committing an assault with intent to commit a rape on Anna M. Boyland, the wife of the defendant Henry H. Boyland, one of the defendants, in Dickinson county. They now appeal to this court. The misconduct of a juror, the improbability of the testimony to sustain the charge, and the admission of illegal evidence, are alleged as grounds against the conviction and in support of a reversal of the judgment. After an examination of the whole record, we deem it only necessary to notice the objection to certain evidence.
The prosecuting witness testified on the trial that the assault was made about the 15th day of July, 1879; that her husband threw her down with her back on the floor of a stable and held her by her shoulders; that at the same time Reese McCurty caught hold of her feet and attempted forcibly to ravish her; that he was unsuccessful in his efforts; that after the defendants were foiled in their purpose, they got up and all went to the house of her father-in-law (near by), where they were living; that she stayed there that night, and that nothing more was done that night. After a question as to a conversation with defendant McCurty concerning what took place at a subsequent time, and the answer that he (McCurty) wanted the privilege the husband had given, this question was asked of the witness: “State what next took place between you?” To this, the defendant objected, on the grounds of incompetency and irrelevancy. The court overruled the objection, and the witness answered: “The next Sunday Reese claimed he was sick, and lay down on the lounge; he seemed to be asleep, and Henry (Boyland) said, ‘Take a paper and keep the flies off of Reese;’ the old folks were away; I said, ‘Let Reese keep the flies away himself;’ my husband said, ‘No;’ at the same time he pushed me back on the lounge, pushed a newspaper into- my hands and told me to keep the flies off of him; I told Henry I didn’t want to do that; he said, ‘D- you, you will.’” Then followed the narration of other conversation between the husband and wife, too foul for repetition here. It clearly showed the husband had no regard for the virtue of his wife, and was willing that McCurty might debauch her. All of this evidence, being subsequent to the commission of the alleged offense, and being wholly separate from the particular crime for which the defendants were put upon trial, and not referring in any way to the circumstances attending the commission of such crime, was incompetent and irrelevant. We do not understand upon what theory it was received. The counsel for the state fail to enlighten us in their brief. If it was intended thereby to prove the bad character of the defendants by specific acts of indecent conduct, it was inad missible. If it was sought to show a subsequent assault, it was incompetent. You cannot prejudice a defendant by proof of particular acts of crime other than the one for which he is being tried, unless the acts have been committed in the preparation for the crime, or the actual doing of the crime, or in concealing it, or its fruits. The evidence offered does not come within these exceptions.
Neither can we say the evidence tended to corroborate the witness in reference to her prior statements, or to sustain the charge against the defendants. It was the narration by the witness of subsequent acts and conversations of defendants of a revolting and offensive nature, and proving, if true, the shameful conduct of defendants, and a willingness on the part of the husband that his wife might be debauched by the other defendant, yet not adding anything to the evidence of the commission of the crime of July 15th prior, or furnishing the words of others in attestation of the testimony of the wife. The evidence objected to must have poisoned and inflamed the minds of the jurors and greatly prejudiced the defendants. The admission of this evidence was therefore material error.
The judgment will be reversed, and the cause remanded. The defendants will be returned from the penitentiary and delivered over to the jailer of Dickinson county, to abide the order of the district court of that county.
All the Justices concurring. | [
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The opinion of the court was delivered by
Horton, C. J.:
On the 21st day of December, 1878, plaintiffs in error were summoned as garnishees in an action then pending before J. M. Hagaman,-a justice of the peace of Cloud county, wherein Walter G. Tuppeny was plaintiff and James Hill was defendant. On the 30th day of December, 1878, N. B. Brown, one of the plaintiffs in error, appeared before the justice and answered as garnishee as follows: “James Hill, defendant, deposited with us a draft for collection of $126.18, upon which we paid Mr. Hill $26.18. This draft was deposited before the service of the garnishee summons upon us. We suppose the draft will be paid, and if paid, we will owe defendant $100, less $10 paid to S. D. Houston, Jr., upon an order drawn by James Hill before service of garnishee summons.” The trial was had between Tuppeny and Hill on the same day, and instead of Tuppeny recovering anything upon his account, judgment was rendered in favor of Hill for $17 and costs, and thereupon these plaintiffs in error were discharged as garnishees from all liability. On January 7th, 1879, Tuppeny filed an ordinary appeal bond, which was duly approved and filed. At the October term for 1879, the case of Tuppeny against Hill on appeal was tried in the district court. Judgment was rendered in favor of Tuppeny for $104.45, and costs taxed at $89.80. At the same term of court an order was -entered requiring N. B. Brown & Co. as garnishees to pay into court, for the use of the plaintiff Walter G. Tuppeny, $90. This order was erroneous. No mention or reference was- made in the appeal bond to the order discharging the garnishees. The proceedings in the garnishment were not taken up to the district court, the appeal being simply from the final judgment in the action. In the district court no notice was given to plaintiffs in error of any proceedings pending against them, nor were they required to answer in court, nor did they file any answer. From the record, it seems a motion was made for them to deposit in the court the draft belonging to James Hill, and without any pleadings being filed, the order requiring them to pay the $90 was made. Within the principle announced in Gates v. Sanders, 13 Kas. 411, the order and judgment of the district court nfust be reversed. As there was no foundation for the order and judgment against the plaintiffs -in error in the district court, the error of the court is apparent in the record, and no exception was necessary to bring the case before us for review. (Dexter v. Cochran, 17 Kas. 447; Koehler v. Ball, 2 Kas. 160.)
As the order in the trial court was made at the instance of the defendant in error, without the plaintiffs in error being parties to the action pending before the court by any ancillary or other proceeding, the action here is properly prosecuted by the plaintiffs in error against the defendant in error. There is no defect of parties.
Order and judgment reversed.
All the Justices concurring. | [
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Arnold-Burger, J.:
In 1997, Robert L. Verge was convicted of capital murder, but tbe jury was unable to unanimously agree on the death penalty. Accordingly, under the statute in effect at the time, he was given a life sentence and the sentencing court was given the responsibility to determine if Verge was eligible for parole after serving the minimum 25 years or whether he was going to be required to serve 40 years in prison before he could be considered for parole. K.S.A. 22-3717; K.S.A. 21-4635. The sentencing court determined that the mitigating factors present did not outweigh the aggravating factors, so it sentenced Verge to a life sentence without the possibility of parole for 40 years. State v. Verge, 272 Kan. 501, 519-20, 34 P.3d 449 (2001) (Verge I). Now, Verge appeals the summaiy dismissal of his third K.S.A. 60-1507 motion as successive and untimely claiming that the new rule established in Alleyne v. United States, 570 U.S._, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), which mandates that only a jury could have found the aggravating factors necessary to enhance Verge’s parole eligibility from 25 years to 40 years, is an intervening change in the law that requires his case to be remanded for resentencing. But Verge’s case wás final, having exhausted all direct appeals, when Alleyne was issued. Because we find that Alleyne does not apply retroactively to cases on collateral review, we affirm.
Factual and Procedural History
In November 1998, Verge was convicted of capital murder, aggravated robbery, aggravated burglary, and two counts of felony theft. He was sentenced by the court to life imprisonment with no chance of parole for 40 years on the capital murder conviction, which was upheld by our Supreme Court in Verge I, 272 Kan. 501.
In December 2002, Verge filed a motion to correct an illegal sentence, which the district court denied. This court construed Verge’s motion as a K.S.A. 60-1507 motion and affirmed the district court’s denial. State v. Verge, No. 92,562,2005 WL 2076503 (Kan. App.) (unpublished opinion), rev. denied 280 Kan. 991 (2005). In April 2010, Verge filed a second motion to correct an illegal sentence, which tire district court construed as a K.S.A. 60-1507 motion and denied it as successive and untimely. Verge failed to docket his appeal from the district court’s decision, and this court dismissed Verge’s appeal.
On August 5, 2013, Verge filed his most recent K.S.A. 60-1507 motion alleging ineffective assistance of counsel throughout his trial and appeal; that his hard 40 sentence should have been put before a jury, relying on Alleyne; that he should have been allowed to voir dire the jury; and that the district court abused its discretion when it construed his motion to correct an illegal sentence as a habeas corpus motion.
The district court summarily dismissed Verge’s K.S.A. 60-1507 motion as successive and untimely. The district court also found that no manifest injustice was shown through the facts presented by Verge.
Verge filed a timely notice of appeal.
Analysis
When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court conducts de novo review to determine whether the motion, files, and records of the case conclusively es tablish that the movant is not entitled to relief. Edgar v. State, 294 Kan. 828, 836, 283 P.3d 152 (2012).
The success of Verge’s K.S.A. 60-1507 motion hinges on whether the recent United States Supreme Court case of Alleyne applies retroactively to Verge’s case. If it does, then Verge’s K.S.A 60-1507 is not considered successive because the case would constitute an intervening change in the law. See Rowland v. State, 289 Kan. 1076, 1087, 219 P.3d 1212 (2009). Likewise, it would not be subject to dismissal as untimely because it could be considered manifest injustice or patently unfair to deny Verge’s claim when the law has changed and it is to be applied retroactively. K.S.A. 60-1507(f)(2); Ludlow v. State, 37 Kan. App. 2d 676, 686, 157 P.3d 631 (2007). If Alleyne does not apply retroactively to cases on collateral review, then there can be no doubt that Verge’s motion is both successive and untimely (filed after June 30,2004), and as such it was properly denied. See State v. Trotter, 296 Kan. 898, 904, 295 P.3d 1039 (2013) (citing K.S.A. 60-1507[c] — sentencing court not required to entertain a second or successive motion for similar relief on behalf of the same prisoner); Pabst v. State, 287 Kan. 1, 22, 192 P.3d 630 (2008) (discussing time limits for K.S.A. 60-1507 actions when conviction occurred before 2003 statutory amendments). And, even if we were to consider Verge’s motion to be a motion to correct an illegal sentence under K.S.A. 22-3504, which can be brought at any time, the success of the motion would still depend on whether Alleyne applies retroactively to cases that were already final at the time Alleyne was decided. If it does, he prevails. If it does not, his claim fails under any theory. Accordingly, we first examine the United States Supreme Court’s decision in Alleyne.
The Retroactive Application of Apprendi and Alleyne in General
Our discussion of Alleyne must begin with the United States Supreme Court decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). There the Court examined a New Jersey hate crime statute that allowed the maximum sentence for a crime to be enhanced if the judge found by a preponderance of the evidence that the defendant acted to intimidate on the basis of race, color, gender, handicap, religion, sexual ori entation, or ethnicity. The Supreme Court found that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” (Emphasis added.) 530 U.S. at 490. The Court found the statute to be invalid and vacated Apprendi’s enhanced sentence. 530 U.S. at 497.
Our Supreme Court recognized the ruling from Apprendi in State v. Gould, 271 Kan. 394, 406, 23 P.3d 801 (2001). Because K.S.A. 21-4716(a) allowed the judge to enhance the presumptive sentence under the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq., upon a finding of certain aggravating factors, our court found the statute to be unconstitutional and vacated Gould’s enhanced sentence, consistent with Apprendi. Gould, 271 Kan. at 414. Our Supreme Court went on to find that the constitutional mandate of Apprendi was not retroactive. The court found that it would only apply to cases that were pending on direct appeal, were not yet final, or which arose after June 26, 2000 (the date of the Apprendi ruling). Gould, 271 Kan. at 414.
Just a few months later our Supreme Court was faced with the question of whether Apprendi applied retroactively to cases on collateral review. In Whisler v. State, 272 Kan. 864, 879, 36 P.3d 290 (2001), after a thorough review of the rules regarding retroactive application of legal decisions, the court found that Apprendi was “not a watershed rule of criminal procedure that implicates the fundamental fairness of trial” and, therefore, it did not apply retroactively to cases on collateral review.
Thirteen years later, the United States Supreme Court was faced with a similar issue, but this time as it related to the enhancement of a mandatory minimum sentence. In Alleyne, the United State Supreme Court extended Apprendi by holding that any fact that increases the mandatory minimum sentence is an element and must be submitted to a jury and found beyond a reasonable doubt. Alleyne, 133 S. Ct. at 2158.
The Kansas Supreme Court first addressed the application of Alleyne to the Kansas sentencing scheme in State v. Soto, 299 Kan. 102, 322 P.3d 334 (2014), a direct appeal. Soto was found guilty of first-degree premeditated murder. See K.S.A. 21-3401(a). Ac cording to the statutes in effect at tire time of Soto’s conviction, under K.S.A. 21-4635(b), Soto could either receive a mandatory sentence of 50 years or be “ ‘sentenced as otherwise provided by law.’ ” 299 Kan. at 116. In determining the sentence, the court is to weigh aggravating circumstances (which are set out in K.S.A. 21-4636) against mitigating circumstances (set out in K.S.A. 21-4637) and if the mitigating circumstances do not outweigh the aggravating circumstances the defendant must be sentenced to 50 years without the possibility of parole, otherwise known as the “hard 50.” K.S.A. 21-4635(d); K.S.A. 21-4638. Absent this enhancement, Soto would be subject to a life sentence with the possibility of parole after 25 years. See K.S.A. 21-4706(c); K.S.A. 22-3717(b)(1). The district court weighed the aggravating and mitigating circumstances and sentenced Soto to the hard 50 sentence. Soto appealed.
The Alleyne decision was filed after briefing in Soto. But cognizant of Alleyne’s impact, the Kansas Supreme Court requested supplemental briefing to address its application to Soto’s case. See Soto, 299 Kan. at 115. Subsequently, the court found that the hard 50 sentencing scheme was contrary to the ruling in Alleyne and declared it unconstitutional “because it permits a judge to find by a preponderance of tire evidence the existence of one or more aggravating factors necessary to impose an increased mandatory minimum sentence, rather than requiring a jury to find the existence of the aggravating factors beyond a reasonable doubt.” Soto, 299 Kan. at 124. The court vacated Soto’s sentence and remanded the case for resentencing.
Accordingly, in Soto and several cases decided after Soto, the Kansas Supreme Court has clearly applied the procedural rule announced in die Alleyne decision to cases pending on direct appeal at the time the Alleyne decision was filed. See State v. Lloyd, 299 Kan. 620, 325 P.3d 1122 (2014); State v. Astorga, 299 Kan. 395, 324 P.3d 1046 (2014); State v. DeAnda, 299 Kan. 594, 324 P.3d 1115 (2014); State v. Hilt, 299 Kan. 176, 322 P.3d 367 (2014). This brings us to the real issue in this case: whether the rule announced in the Alleyne decision applies retroactively to cases that are already final but before the court on collateral review.-
The Retroactive Application of Alleyne in Cases on Collateral Review
To reiterate, in order to avoid a determination that Verge’s K.S.A. 60-1507 motion is successive and untimely, he first needs to show that Alleyne would constitute an intervening change in the law. That is not difficult. As our Supreme Court pointed out in Soto:
“In sum, before Alleyne, the United States Supreme Court held that any additional facts necessary to increase the punishment for a crime beyond die maximum punishment a judge could impose based solely on die facts reflected in the jury verdict or admitted by the defendant must be submitted to a jury and proven beyond a reasonable doubt. In contrast, additional facts necessary to increase the mandatory minimum sentence were merely sentencing factors that could be found by a judge raflier dian a jury.” Soto, 299 Kan. at 119.
The court indicated that Alleyne “changed [the] landscape.” Soto, 299 Kan. at 120. The court cited a litany of cases in which it had upheld the hard 40/50 sentencing scheme based on pre-Alleyne United States Supreme Court precedent. Soto, 299 Kan. at 119-20. The Tenth Circuit Court of Appeals has also determined that Alleyne does create “ ‘a new rule of constitutional law.’ ” In re Payne, 733 F.3d 1027, 1029 (10th Cir. 2013).
However, the inquiry does not end there. Even though Alleyne is an intervening change in the law, it still needs to be determined whether Alleyne would apply retroactively to Verge’s case, a collateral action. The general rule is that “new law will not be applied to cases on collateral attack.” Drach v. Bruce, 281 Kan. 1058, Syl. ¶ 8, 136 P.3d 390 (2006), cert. denied 549 U.S. 1278 (2007). But neither the United States Supreme Court, nor the Kansas Supreme Court has specifically addressed this issue as it relates to the Al-leyne decision. Several Circuit Courts of Appeal, including the Second, Fourth, Seventh, and Tenth Circuits, have determined that Alleyne, as an extension of Apprendi, does not apply retroactively in collateral appeals. However, we are compelled to take note of the fact these courts base their analysis on the language of 28 U.S.C. § 2255(h)(2), which specifically mandates that newly recognized rights be specifically made applicable retroactively by the Supreme Court to cases on collateral review before a movant can overcome any claims of successiveness in a federal habeas corpus action. Payne, 733 F.3d at 1029; Simpson v. United States, 721 F.3d 875, 876 (7th Cir. 2013); United States v. Redd, 735 F.3d 88, 91-92 (2d Cir. 2013); United States v. Stewart, 540 Fed. Appx. 171 n. (4th Cir. 2013). Ohio has followed the federal lead because it has a statute very similar to 28 U.S.C. § 2255. See State v. Lewis, 2014 Ohio 2224, 2014 WL 2192147 (Ohio App.) (relying on Ohio Rev. Code Ann. § 2953.23[A] [ 1 ] [a]).
Kansas does not have a similar statute. Our statute does not specifically refer to changes in the law as a basis for allowing successive or untimely motions for postconviction relief. Instead, the statute allows the 1-year time limitation to be disregarded to prevent “manifest injustice.” K.S.A. 60-1507(f)(2). In addition, our courts have interpreted the prohibition against successive motions to be disregarded only in cases of “exceptional circumstances.” Such exceptional circumstances have been interpreted to include an intervening change in the law. See Supreme Court Rule 183(c)(3) (2013 Kan. Ct. R. Annot. 278); Rowland, 289 Kan. at 1087.
Even though Kansas does not have the same federal statutory language, our Supreme Court has made it clear, consistent with rulings from the United States Supreme Court, that “[a] new constitutional rule of criminal procedure generally will not be applied retroactively to cases on collateral review.” (Emphasis added.) State v. Near, 247 Kan. 137, Syl. ¶ 3, 795 P.2d 362 (1990). In Whisler, the Kansas Supreme Court noted that “the Apprendi rule (along with nearly all ground-breaking constitutional rules from the last 50 years) are matters of criminal procedure.” 272 Kan. at 878. However, there are certain exceptions to this rule.
In both Neer and Whisler our Supreme Court quoted with approval Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), which analyzed which types of new constitutional rules may be applied retroactively to cases on collateral review and concluded that only two types of constitutional rules implicate ret-roactivity: (1) rules that place certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe, or (2) rules that require the observance of those procedures that are implicit in the concept of ordered liberty. Teague, 489 U.S. at 307; Whisler, 272 Kan. at 870; Neer, 247 Kan. 137, Syl. ¶ 3. In Whisler, our Supreme Court found that neither of these exceptions applied to the new constitutional rule of criminal procedure announced in Apprendi. 272 Kan. at 879.
Alleyne is an extension of Apprendi. The United States Supreme Court has decided that other rules based on Apprendi do not apply retroactively on collateral review. See Schriro v. Summerlin, 542 U.S. 348, 358, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004) (finding that Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 [2002], which held Arizona’s death penalty sentencing scheme unconstitutional in light of Apprendi, did not apply retroactively to cases already final on direct review). This implies that the United States Supreme Court will not declare Alleyne to be retroactive to cases that are already final on direct review. Likewise, our Supreme Court has found that Apprendi does not apply retroactively to cases on collateral review. We can find nothing that distinguishes this case from Apprendi and the analysis in Whisler when it comes to retroactivity.
In conclusion, although Alleyne created a new constitutional rule, we find that it does not apply retroactively to cases before the court on collateral review. Accordingly, the district court did not err when it summarily dismissed Verge’s K.S.A. 60-1507 action.
The Retroactive Application of Alleyne in a Motion to Comet Illegal Sentence
Even if we were to liberally construe Verge’s pro se K.S.A. 60-1507 motion to be a motion to correct an illegal sentence under K.S.A. 22-3504, it still fails. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010) (pro se pleadings liberally construed and failure to cite the correct statutory grounds for claim immaterial).
Determining whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Neal, 292 Kan. 625, 630, 258 P.3d 365 (2011). A motion to correct an illegal sentence may be raised at any time. 292 Kan. at 631. An “illegal” sentence, as contemplated by K.S.A. 22-3504, is a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served. 292 Kan. at 630. The Kansas Supreme Court has repeatedly held that K.S.A. 22-3504 has very limited applicability. Makthe-pharak v. State, 298 Kan. 573, 581, 314 P.3d 876 (2013). A sentence is illegal only if it fits within the definition. “Because the definition of an illegal sentence does not include a claim that the sentence violates a constitutional provision, a defendant may not file a motion to correct an illegal sentence based on constitutional challenges to his or her sentence.” State v. Mitchell, 284 Kan. 374, 377, 162 P.3d 18 (2007) (citing State v. Gayden, 281 Kan. 290, 293, 130 P.3d 108 [2006]); see also State v. Payton, No. 98,756, 2008 WL 4471901, at *4 (Kan. App. 2008) (unpublished opinion) (motion to correct illegal sentence based on Apprendi improper constitutional challenge to sentence), rev. denied 288 Kan. 835 (2009). Similarly, Verge’s constitutional challenge based upon Alleyne would also fail.
Moreover, as already discussed, our Supreme Court has made clear that the procedural sentencing rule outlined in Apprendi only applies to cases that were not final at the time Apprendi was decided. In State v. Synoracki, 280 Kan. 934, 935, 126 P.3d 1121 (2006), our Supreme Court relied on the rule enunciated in Whis-ler, when denying a motion to correct an illegal sentence based on a case that was final several years before Apprendi was decided. Again, Alleyne is simply an extension of Apprendi, and we can conceive of no reason why the same rule would not apply.
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McAnany, J.:
In February 2000, Daric Smith, seeking to represent a class of Kansas retail purchasers of cigarettes (Plaintiffs), commenced this action against several tobacco companies (Defendants) in the Seward County District Court, alleging they conspired to fix the wholesale price of cigarettes in violation of the Kansas Restraint of Trade Act (KRTA), K.S.A. 50-101 et seq. Defendants are: Altria Group, Inc., formerly Philip Morris Companies, Inc. (Altria); Philip Morris USA, Inc., a subsidiary of Altria (PM-USA); Philip Morris International, Inc., a subsidiary of Altria until 2008 (PMI); R.J. Reynolds Tobacco Company (RJR); Lorillard Tobacco Company (Lorillard); Brown & Williamson Tobacco Corporation (B&W); Liggett Group, Inc. (Liggett); and British American Tobacco (Investments) Ltd. (BATCo).
The district court certified the class with Smith as its representative. After 12 years of litigation and extensive discovery, tire district court entered summary judgment for Defendants. The court found Plaintiffs failed to come forward with direct evidence or sufficient circumstantial evidence from which a jury could draw a reasonable inference of collusive behavior in fixing the wholesale price of cigarettes in Kansas. Moreover, the court found Plaintiffs’ theory economically untenable. Plaintiffs appeal.
Upon de novo review, and based upon the claims and the facts established during discovery in this case, we conclude the district court did not err in entering summary judgment in favor of Defendants. As we shall see in our discussion of the court’s decision in United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 28 (D.D.C. 2006), aff'd in part and vacated in part by 566 F.3d 1095 (D.C. Cir. 2009), cert. denied 130 S. Ct. 3502, reh. denied 131 S. Ct. 57 (2010), which we refer to in this opinion as the RICO case, the tobacco industry has many things to answer for to the consumers of its products. But based upon the facts before us, a conspiracy among these Defendants to fix the wholesale prices of cigarettes in Kansas in violation of the KRTA is not one of them.
Introduction
The tobacco industry is a classic example of an oligopoly, with a small number of companies controlling the majority of the market. Defendants PM-USA, RJR, R&W, Lorillard, and Liggett (Manufacturing Defendants) collectively manufactured more than 97% of the cigarettes sold in tire United States during the relevant time period. The Manufacturing Defendants sell to wholesalers at list prices, which are published to wholesalers on a regular basis. The wholesalers independently set their own prices to retailers, and the retailers tiren set their own prices for consumers. Rut the ultimate price to the consumer is affected by a wide variety of discounts, promotions, and rebates to wholesalers provided by Manufacturing Defendants. See Brooke Group Ltd. v. Brown Williamson Tobacco Corp., 509 U.S. 209, 239, 113 S. Ct. 2578, 125 L. Ed. 2d 168 (1993); RICO case, 449 F. Supp. 2d at 948.
Plaintiffs contend, at a minimum, that Defendants, pursuant to a conspiracy to fix the wholesale prices of cigarettes in the United States, engaged in lock-step price increases beginning on November 1, 1993, following a 7-month period of vigorous price competition. Before we further explore the breadth of Plaintiffs’ conspiracy claim or claims, which is a key source of contention on appeal, we briefly consider the circumstances of the cigarette market leading up to that point.
By 1980, the demand for cigarettes in the United States was in decline, resulting in substantial excess capacity among the various manufacturers. Liggett, whose market share declined over the years from over 20% to barely 2%, responded by introducing in 1980 generic cigarettes at a list price of about 30% less than the regular brands. As the sale of Liggett’s generics increased, RJR responded in 1983 with its own generic brand, and B&W followed suit in the spring of 1984. Throughout the 1980’s and early 1990’s, the discount segment of the cigarette market grew dramatically, taking market share away from premium brands, such as PM-USA’s flagship brand Marlboro. By 1993, discount cigarettes accounted for 38.9% of industry shipments.
The growing discount segment had a particularly negative effect on PM-USA, with Marlboro losing market share at an accelerated rate for the first time in decades. For Marlboro to remain competitive, PM-USA concluded it needed to narrow the gap between the price of Marlboro and the lowest priced discount brands.
Thus, on April 2,1993, a day which came to be known as “Marlboro Friday,” PM-USA announced a nationwide Marlboro retail promotion that reduced retail prices by an average of 40 cents per pack, or approximately 20%. Four months later, PM-USA followed this retail promotion with national wholesale list price reductions on all of its premium and discount brands.
These moves successfully reduced tire price gap between Marlboro and the discount brands, resulting in Marlboro regaining its market share. The other Manufacturing Defendants followed PM-USA’s price moves. Plaintiffs contend these price moves were the result of an illegal combination or conspiracy to fix prices. On the other hand, Defendants contend they made these pricing moves independent of one another. As support, they point to uncontrov-erted evidence that they argue is inconsistent with the notion of these pricing moves being the product of an agreement among competing suppliers.
The scope of Plaintiffs’ claim or claims against Defendants became a key source of contention in the district court and remains so in this appeal. The case is now before us because the district court found Plaintiffs stated only a claim for a wholesale price-. fixing conspiracy and granted Defendants summary judgment on that claim.
Plaintiffs’ contentions on appeal center on two points. First, they insist the district court too narrowly interpreted the scope of their restraint-of-trade claim. Second, they contend that even if we find otherwise, summary judgment on a wholesale price-fixing claim is improper under Kansas law.
Standard of review
In our de novo review of Defendants’ motions for summary judgment, we apply the same summary judgment standards as those applied by the district court. Those standards dictate that summary judgment is appropriate only 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. We resolve all facts and inferences that may reasonably be drawn from the evidence in favor of Plaintiffs, the party against whom the summary judgment was sought. We must deny Defendants’ summary judgment motions if reasonable minds could differ as to the conclusions drawn from the evidence. See O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012) (O’Brien I).
Scope of Plaintiffs’ Claim
Defendants tell us this is one of many antitrust cases filed across tire country involving the same claim against some of them for conspiring to fix the wholesale prices of cigarettes following Marlboro Friday. All of those other cases have now been either voluntarily dismissed or ended in summary judgment for the tobacco companies. See, e.g., Holiday Wholesale Grocery v. Philip Morris Inc., 231 F. Supp. 2d 1253, 1329 (N.D. Ga. 2002), aff'd sub nom. Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287 (11th Cir. 2003) (granting summary judgment against class of cigarette wholesalers in multidistrict litigation [MDL] on wholesale price-fixing claim brought against PM-USA, RJR, R&W, and Lorillard under federal antitrust law); Romero v. Philip Morris Inc., 148 N.M. 713, 729-32, 242 P.3d 280 (2010) (applying Williamson Oil analysis in affirming summary judgment for same tobacco companies involved in this case on claim of wholesale price-fixing conspiracy brought by class of indirect cigarette purchasers under New Mexico’s antitrust laws); Ren v. Philip Morris Companies, Inc., No. 00-004035-CZ, unpublished Michigan Circuit Court opinion filed September 10, 2003 (same under Michigan antitrust law). Defendants insist the district court properly held the same result is proper in this case brought under the KRTA.
The governing substantive law
Before we determine what claim or claims are involved in this case, a brief overview of the governing law is in order. First, we note that substantial changes to die KRTA were enacted by our legislature in response to our Supreme Court’s opinion in O’Brien I. Those changes were effective April 18, 2013, but do not apply retroactively to cases, like this one, already pending at the time. See K.S.A. 2013 Supp. 50-164; Owen Lumber Co. v. Chartrand, 276 Kan. 218, 220-21, 73 P.3d 753 (2003). Those changes included: (1) The repeal of the full-consideration damages provision in K.S.A. 50-115, which allowed a successful plaintiff to recover the full consideration paid for goods “controlled in price by such combination” and which are claimed by Plaintiffs in our present case; (2) a declaration that provisions of the KRTA shall be “construed in harmony” with the United States Supreme Court’s interpretations of federal antitrust law; and (3) permitting a rule-of-reason analysis by an explicit allowance for “reasonable restraints] of trade or commerce.” K.S.A. 2013 Supp. 50-163(b), (c); L. 2013, ch. 102, sec. 7. Our present case proceeds under the pre-April 18, 2013, version of the KRTA.
Both tire KRTA and its federal counterpart, the Sherman Act, 15 U.S.C. § 1 et seq. (2012), contain broad language that bans a wide range of activities that restrict or restrain trade. Section 1 of the Sherman Act broadly declares illegal “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations.” 15 U.S.C. § 1. The cases are legion in which federal courts have been called upon to interpret and to apply this language. Federal antitrust law, however, does not control here. Rather, as our Supreme Court recently stressed, “federal antitrust law is intended to supplement the remedies available under Kansas law, not to replace Kansas antitrust provisions.” O’Brien I, 294 Kan. at 322. But we do not ignore the multitude of cases interpreting and applying the Sherman Act. On the contrary, federal precedents interpreting, construing, and applying federal antitrust law can be persuasive authority; but this is so only as long as they do not conflict with clearly dissimilar provisions in the KRTA. See 294 Kan. at 322, 342-43. We will come back to these principles later.
In their first amended petition, under which this case has been litigated since March 2001, Plaintiffs broadly alleged that Defendants violated “K.S.A. 50-101 through K.S.A. 50-117, K.S.A. 50- 139 through K.S.A. 50-147, and K.S.A. 50-801.” But our review of the vast record reveals that Plaintiffs’ substantive statutory focus has consistently been K.S.A. 50-Í12, from their successful efforts resisting Defendants’ early efforts to have this action dismissed for failure to state a claim to the more recent battles over the appropriateness of summary judgment. Moreover, full-consideration damages under K.S.A. 50-115 that Plaintiffs seek were the focus of their expert witnesses’ report in support of class certification. Full-consideration damages are only available under K.S.A. 50-115 for violations of K.S.A. 50-112 (and the unrelated prohibitions of K.S.A. 50-113 involving the creation of certain trusts). See O’Brien v. Leegin Creative Leather Products, Inc., No. 108,988, 2014 WL 1362657, at *7-8 (Kan. App. 2014) (unpublished opinion), petition for review filed May 5, 2014 (O’Brien II). K.S.A. 50-112 is clearly where we must focus our attention.
K.S.A. 50-112 broadly declares the following to be “against public policy, unlawful and void”:
“[A]ll arrangements, contracts, agreements, trusts, or combinations between persons made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, . . . and all arrangements, contracts, agreements, trusts or combinations between persons, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles ... or any other services
We can envision a wide variety of concerted activities in restraints of trade that might fall under the broad proscription of K.S.A. 50-112. Businesses arguably could violate K.S.A. 50-112 by allocating customers or sales territories, agreeing not to compete on a particular product line, agreeing to limit production or variations in the quality of competing products, controlling hours of operation, or agreeing to fix prices. These examples do not exhaust the possibilities. But the issue here is the theory or theories Plaintiffs have pursued in this case.
In response to Smith’s original petition, Defendants filed various motions to dismiss for failure to state a claim and, in the alternative, asked the court to coordinate the discovery in this case with the discovery taking place in the federal MDL that ultimately led to the decision in Williamson Oil. In their written opposition to those motions, Plaintiffs consistently referred to a “fraudulent price fixing conspiracy” or “the price fixing agreement,” to Defendants as “alleged price fixing conspirators,” and to Defendants’ various detrimental acts as “price fixing.” In at least one early pleading, Plaintiffs even cross-referenced smoking and health conspiracies that were being raised elsewhere as separate from the conspiracy they were raising in this case. More specifically, in responding to at least one motion to dismiss filed prior to class certification, Plaintiff Smith rebutted certain foreign Defendants’ suggestions that discovery on the issue of whether the court could exercise jurisdiction over them would be unduly burdensome by noting: “Foreign Defendants admit that their domestic subsidiaries have already ‘posted millions of pages of its documents on the internet’ in smoking and health actions.” Plaintiffs then argued:
“It is virtually common knowledge that the tobacco companies have been attempting to create shells of corporations in an effort to avoid tire inevitable massive liability for their prior conspiracies on addictive nicotine and cigarette cancer causing issues which have now come home to roost in one case in Florida in which the domestic subsidiaries alone have been hit for $145 billion. It is no small wonder that Foreign Defendants are looking to protect their own assets, but much of this shell game was done after the conspiracy set forth herein began and much of the Foreign Defendants!’] shells were set up from the unfair profits of the conspirators.” (Emphasis added.)
During a hearing on the motions to dismiss conducted in August 2000, Plaintiffs distinguished their case from the federal MDL solely on the bases that the federal procedural rules, laws of evidence, and substantive law that governed the MDL case differed from Kansas law. In particular, they focused on the distinction between the class in the MDL (direct purchasers) versus the class they proposed (indirect purchasers). They never suggested during these early proceedings that they were raising a substantive claim other than a wholesale price-fixing conspiracy.
In March 2001, Plaintiffs filed their first amended petition, tire pleading under which this case has been litigated since then.
Under Kansas law, a petition is not intended to govern the entire course of tire case. Berry v. National Medical Services, Inc., 292 Kan. 917, 918, 257 P.3d 287 (2011). In fact, under Kansas’ liberal notice-pleading rules, the only information Plaintiffs were required to include in their petition was: “(1) A short and plain statement of the claim showing that the pleader is entitled to relief; and (2) a demand for judgment for tire relief to which the pleader deems such pleader’s self entitled.” K.S.A. 60-208; see also Oller v. Kincheloe’s, Inc., 235 Kan. 440, 446-48, 681 P.2d 630 (1984) (outlining various principles underlying concept of notice pleading under Kansas law). Plaintiffs were under no obligation to categorize their causes of action or cite statutory authority or common-law bases for tire suit. See Golden v. Den-Mat Corporation, 47 Kan. App. 2d 450, 461, 276 P.3d 773 (2012). Moreover, the substance of a petition prevails over its form, at least in the context of reviewing a dismissal of a petition for failure to state a claim under K.S.A. 60-212(b)(6). See Baska v. Scherzer, 283 Kan. 750, 755, 156 P.3d 617 (2007).
Nonetheless, how Plaintiffs deliberately organized their first amended petition is somewhat instructive on just what claim or claims they raised in their lawsuit. Plaintiffs’ first amended petition is divided into 55 numbered paragraphs Which fall under 9 main sections. Plaintiffs assigned the following headings to tiróse sections:
I. NATURE OF THIS ACTION
II. PARTIES
III. CO-CONSPIRATORS, AIDERS AND ABETTORS, AND JOINT VENTURERS
IV. JURISDICTIONAL ALLEGATIONS
V. CLASS ACTION ALLEGATIONS
VI. TRADE AND COMMERCE IN KANSAS
VII. FACTUAL BACKGROUND
A. General Price Fixing Information
B. Violation of Antitrust Laws
C. The Illegal Effect on Markets in Kansas
D. Fraudulent Concealment, Equitable Tolling, Dis-coveiy Rule, Continuous Tort
VIII. INJURY TO PLAINTIFF AND PLAINTIFF’S CLASS
IX. PRAYER FOR RELIEF.
In the prayer for relief and at various points throughout their petition, Plaintiffs consistently referred broadly to a singular “unlawful combination and conspiracy alleged [t]herein.” The same is true of the “class allegations,” particularly with regard to the questions of law and fact alleged to be common to the class. Plaintiffs specifically detailed how that “combination and conspiracy” violated tire KRTA under section VIL B. of their first amended petition. That section opens with the allegation that “[b]eginning no later than November 1, 1993[,] Defendants and their co-conspirators entered into and engaged in a combination and conspiracy to suppress and eliminate competition by fixing the price of Cigarettes offered for sale to customers in this state and elsewhere.” (Emphasis added.) Allegations under that same subheading continue:
“43. Specifically, Defendants illegally:
“a. created or carried out restrictions in trade or commerce, by e.g. setting by agreement the prices which the Defendants charged for Cigarettes which, directly or indirectly, were sold in Kansas;
“b. prevented competition in the manufacture or sale of Cigarettes sold, directly or indirectly, in Kansas by, agreeing among themselves not to compete over prices;
“c. fixed the price of Cigarettes in such a way as to inflate, stabilize, control or establish, at least in part, the prices paid in Kansas;
“d. entered into, executed, and carried out contracts, obligations, and agreements in which tlrey: (i) bound themselves not to sell Cigarettes below a fixed price; (ii) agreed to keep the prices of Cigarettes at a fixed price; (iii) coordinated price increases; and (iv) established and settled the price of Cigarettes so as to directly or indirectly preclude a free and unrestricted competition among themselves and other co-conspirators; and
“e. issued price announcements and price quotations in accordance with the above-described agreements.
“47. [Plaintiffs] were injured in dieir trade or business by reason of the unlawful acts of Defendants as alleged herein (the wholesaler and distributors who directly purchased Cigarettes from the Defendants paid higher prices for Cigarettes and then passed on diese additional costs to their customers and to die ultimate consumers). As a result, [Plaintiffs] were forced to pay higher prices for the Cigarettes they purchased than diey would have had to pay if the prices charged by Defen dants to their customers were the product of fair and open competition and not of an illegal price-fixing agreement.
“48. During tire period of the conspiracy, Defendants and other co-conspirators held meetings during which they agreed to and did [eliminate], suppress and limit competition by:
“a. discussing the prices and volumes of Cigarettes;
“b. agreeing to increase and maintain prices on Cigarettes; and “c. discussing and agreeing on methods to conceal the agreements and carrying out the charged conduct.
“49. Defendants have issuedprice announcements in accordance ivith the agreements, and have participated in meetings and conversations to monitor and enforce adherence to the agreed-upon prices in the United States, including the State of Kansas.” (Emphasis added.)
The remaining sections of the first amended petition, likewise, focus solely on allegations of conspiratorial price-fixing by Defendants.
But Plaintiffs now insist their claim has never been limited to domestic or national wholesale price-fixing. To the contrary, they proclaim in their appellate brief they have always “alleged an international non-price and price conspiracy.” They describe that claim as a “ ‘restraint of trade claim,’ ” with three distinct components:
(1) A domestic wholesale price-fixing conspiracy like that involved in the federal MDL.
(2) A “demand-shift” or “smoking and health” conspiracy based on allegations that Defendants kept the demand for cigarettes artificially high, thereby keeping the price high by, for example, concealing information, falsely advertising, and actively misleading the public about what they knew concerning the addictive nature of nicotine and the adverse effects of smoking on health. They alleged that “[i]f consumers had received full, accurate information regarding the adverse effects of cigarettes, including how addictive cigarettes were, they would have purchased fewer cigarettes, demand would have been lower, and the price lower.”
(3) A “supply-restriction” or international price-fixing conspiracy based on allegations that Defendants conspired to fix the price of cigarettes in foreign countries, thereby “ m-creas[ing] the incentive to export cigarettes/ ” which, in turn, reduced domestic cigarette supply, causing an increase in domestic cigarette prices.
According to Plaintiffs, the smoking and health conspiracy has always been the “core theory” and “biggest and best part” of their case. They also insist the nonprice, smoking and health component of their restraint-of-trade claim is based on the same activities that underlie the charges brought by the United States Department of Justice against the same tobacco companies who are Defendants in our case for violations of the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. §§ 1961-1968. Those RICO charges ultimately led to a 9-month bench trial in an “extraordinarily complex case” that resulted in an almost 1,000-page decision by the federal district court in United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 28 (D.D.C. 2006), aff'd in part and vacated in part by 566 F.3d 1095 (D.C. Cir. 2009), cert. denied 130 S. Ct. 3502, reh. denied 131 S. Ct. 57 (2010) (the RICO case). In its prefatory summary to that opinion, the federal district court found: “In short, Defendants have marketed and sold their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.” 449 F. Supp. 2d at 28. The court further held the government produced “overwhelming evidence to support most of [its] allegations” that, “for approximately fifty years,” Defendants violated RICO (specifically 18 U.S.C. § 1962[c] and [d] by
“falsely and fraudulently den[ying]: (1) that smoking causes lung cancer and emphysema (also known as chronic obstructive pulmonary disease (’COPD’)), as well as many other types of cancer; (2) that environmental tobacco smoke causes lung cancer and endangers the respiratory and auditory systems of children; (3) that nicotine is a highly addictive drug which they manipulated in order to sustain addiction; (4) that they marketed and promoted low tar/light cigarettes as less harmful when in fact they were not; (5) that they intentionally marketed to young people under the age of twenty-one and denied doing so; and (6) that they concealed evidence, destroyed documents, and abused the attorney-client privilege to prevent the public from knowing about the dangers of smoking and to protect the industry from adverse litigation results.” 449 F. Supp. 2d at 27.
In support of Plaintiffs’ contention that they claim a conspiracy to maintain cigarette prices by hiding the deleterious effects of tobacco, Plaintiffs point to various allegations in their first amended petition, but they particularly rely upon Paragraph 33, which appears immediately between the heading “VII. FACTUAL BACKGROUND” and subheading “A. General Price Fixing Information.” Paragraph 33 states:
“Defendants, along with their affiliates, combined and conspired on a worldwide basis which adversely effected [sic] the United States, including Kansas. Defendants’ conspiracy included price-fixing agreements as well as non-price agreements, which helped provide a foundation and support mechanism for the price-fixing conspiracy. Defendants’non-price agreements included, but were not limited to, the joint creation of false impressions regarding the health effects of cigarette smoking; the joint control of internal scientific research; the joint control of product advertising; tire joint restriction from researching and introducing safer cigarettes; the joint use of legal counsel and others to hide their conspiracy; and the joint coordination of marketing activities. The price fixing conspiracy was intended to directly enhance the profitability of the industry as a whole, and thereby each individual company, and even included an integrated enforcement mechanism so that the group could retaliate’ against any unilateral activity by an individual company defendant. This broad conspiracy lasted from at least November 1,1993 to the present (tire ‘Class Period’).” (Emphasis added.)
The primary nonprice conspiracies Plaintiffs refer to here are: (1) the claimed conspiracy to fix cigarette prices in foreign markets and thereby artificially affect the available supply of cigarettes in the domestic market, and (2) the conspiracy among Defendants to hide from the public the deleterious effects of smoking, thereby artificially affecting the demand for cigarettes. Plaintiffs describe these as “helpfing] provide a foundation and support mechanism for the price-fixing conspiracy.” We will discuss these theories later in some detail.
Defendants respond that Plaintiffs are improperly trying to proceed on entirely different conspiracy theories than the price-fixing theory under which Plaintiffs obtained class certification. They urge us to instead agree with the district court’s ultimate conclusion that Plaintiffs stated only a claim for a wholesale price-fixing conspiracy.
The parties’ opposing positions demonstrate that we cannot resolve the issue of the nature of Plaintiffs’ claim or claims simply by referring to the first amended petition. Accordingly, we look further into the proceedings below to see just what claim or claims were involved.
The next major step in the proceedings involved Plaintiffs’ motion for class certification. There are four statutory threshold prerequisites to bringing a class action in Kansas. A class action is only proper if (1) the number of class members is so large that joinder of all members is impracticable; (2) the class claims present common questions of fact or law; (3) the named parties’ claims and defenses are representative of the claims and defenses of the other class members; and (4) the class representatives will fairly and adequately protect the interests of the class as a whole. K.S.A. 2000 Supp. 60-223(a). These threshold elements are commonly identified in shorthand as “(1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation.” Dragon v. Vanguard, Industries, Inc., 277 Kan. 776, 778, 89 P.3d 908 (2004). Plaintiffs sought class certification under K.S.A. 2000 Supp. 60-223(b)(3). At the time, that statute required, as it still does today, that to certify a class, the court must find: “[Qjuestions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” K.S.A. 2000 Supp. 60-223(b)(3). The statute continued:
“The matters pertinent to tire findings include: (A) The interest of members of tire class in prosecuting or defending separate actions; (B) tire extent and nature of any litigation concerning tire controversy already begun by or against members of tire class; (C) the appropriate place for maintaining, and the procedural measures which may be needed in conducting, a class action.” K.S.A. 2000 Supp. 60-223(b)(3).
Notably, in insisting this case satisfied the statutoiy threshold prerequisites for a class action, Plaintiffs never disputed that they were raising the same wholesale price-fixing claim raised in the federal MDL. In their motion for class certification, Plaintiffs even referred to the then-pending MDL as “the parallel federal direct purchaser action.” They distinguished their case primarily on the bases that they were a class of indirect purchasers and that certain applicable substantive law and procedural rules varied.
We need only look to the introduction to the motion for class certification filed in February 2001 to demonstrate the point. That introduction states:
“Plaintiff moves this Court to certify a class consisting of persons who were indirect purchasers of cigarettes in Kansas and victims of a conspiracy to fix prices and allocate markets for the sale of cigarettes. For almost a decade, the world’s largest cigarette manufacturers met in secret to agree upon the method to artificially raise tire prices of cigarettes sold in the United States and Kansas. These price increases were passed on through the distribution chain such that prices to Kansas consumers were artificially increased for an extended period of time.
“There is currently a consolidated federal direct purchaser class action pending in the Northern District of Georgia [tire federal MDL] which involves the same Defendants (except Liggett Group, Inc. and Brooke Group Ltd.) and alleges the same basic conspiracy as alleged in this matter. In the federal action, the Defendants have recognized the amenability of the cigarette industry to class treatment and have already stipulated to a class action for a four year class period. . . . The federal court certified the class on January 23, 2001.” (Emphasis added.)
Reading further into the motion only-confirms the point. Following this introductory paragraph, Plaintiffs set forth allegations almost identical to those found in the “factual background” section of their first amended petition. They included the same language found in Paragraph 33 of their petition as quoted above in the motion, which they characterized as “factual information” that “supports Plaintiff s allegations of Defendants’ antitrust violations,” not as separate conspiracy claims common.to the proposed class. From there, Plaintiffs emphasized that they raise a “single” horizontal price-fixing conspiracy in arguing that the requirements for certifying a class in K.S.A. 2000 Supp. 60-223(a) and K.S.A. 2000 Supp. 60-223(b)(3) were satisfied. Plaintiffs did not take a contraiy position during any of the ensuing hearings on various aspects of class certification. Moreover, the report of Plaintiffs’ expert witness at the class certification stage focused almost exclusively on the three available theories or methods that may be available for calculating the class’ damages “due to an unlawful conspiracy to fix the wholesale price of cigarettes from November 1, 1993 to the present.”
Defendants’ joint response in opposition to the motion for class certification identified Plaintiffs’ claim as involving only wholesale price-fixing as well. Defendants’ focus was upon a lack of a common class-wide method for proving impact and damages for each member of the putative class of indirect purchasers. Plaintiffs’ reply did not suggest in any way that they had raised any broader claim.
The district court ultimately found the proposed class suitable for certification and granted Plaintiffs’ motion. In making its findings concerning the statutory threshold prerequisites for a class action, the court identified wholesale price-fixing as the class’ claim in its certification order. In particular, the court noted: “There is but a single conspiracy claimed by tire Plaintiffs in this case and if it is proven, it affects all of the proposed class members equally.” The certification order defines the class as: “ ‘All natural persons who indirectly purchased cigarettes in tire State of Kansas for consumption and not for resale from any of the Defendants, or any parent, subsidiary or affiliate thereof or their co-conspirators at any time from November 1, 1993 to the present.’ ”
During proceedings to determine the form of notice to be provided to prospective class members, Plaintiffs persisted in their position that they stated only a claim for a nationwide wholesale price-fixing conspiracy. In fact, in the class notice proposed by Plaintiffs, they described the background of their case as follows:
“The Plaintiff Class, which is a Kansas Class of consumers of cigarettes, allege that since November 1, 1993, [Defendants] have unlawfully agreed to fix the wholesale price of cigarettes and that, as a result, [indirect] buyers of cigarettes in Kansas have paid higher prices than they otherwise would have paid. The Defendants deny liability and have denied these claims and charges.” (Emphasis added.)
The notice ultimately approved by the district court and served on potential class members tracks this language.
How claims are defined at the class certification stage is critical to satisfy due process requirements. See Mulleme v. Central Hanover Tr. Co., 339 U.S. 306, 314-15, 70 S. Ct. 652, 94 L. Ed. 865 (1950) (generally observing that notice and opportunity to be heard are fundamental requisites of the constitutional guarantee of pro cedural due process in context of discussing propriety of class action notice by publication). As explained in Mullane, 339 U.S. at 313, “[m]any controversies have raged about the cryptic and abstract words of the Due Process Clause but there can be no doubt that at a minimum they require that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.” See Dejulius v. New England Health Care Emp. Pension, 429 F.3d 935, 943-44 (10th Cir. 2005) (citing Fifth Amendment to the United States Constitution; Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 173, 94 S. Ct. 2140, 40 L. Ed. 2d 732 [1974]; and Mullane, 339 U.S. at 313, in pointing out that “[i]n addition to the requirements of Rule 23, die Constitution’s Due Process Clause also guarantees unnamed class members the right to notice of certification or settlement”).
Our own Supreme Court has explained in discussing due process principles underlying the requirements of class notice:
“The class action is premised on tire theory that members of the class who are not before the court can justly be bound because the self-interest of their representative coincides with the interest of the members of the class and will assure adequate litigation of tire common issues. Where the interests of absent class members have not been adequately represented, binding them by the class judgment would seem to offend the requirements of due process. (Hansberry v. Lee, [311 U.S. 32, 61 S. Ct. 115, 85 L. Ed. 22 (1940)].) Notice to absent members of the class in this regard is particularly important, for it is the greatest single safeguard against inadequate representation. (Mullane, [339 U.S.] at 314.)” Shafts, Executor v. Phillips Petroleum Co., 222 Kan. 527, 556, 567 P.2d 1292 (1977).
Accord Amchem Products, Inc. v. Windsor, 521 U.S. 59l, 621, 117 S. Ct. 2231, 138 L. Ed. 2d 689 (1997) (noting counterparts to K.S.A. 2000 Supp. 60-223[a] and [b] found in Rule 23 of Federal Rules of Civil Procedure [F.R. Civ. P.], “focus court attention on whether a proposed class has sufficient unity so that absent members can fairly be bound by decisions of class representatives”). Our Supreme Court has further commented on this subject:
" ‘Class actions are designed to provide an “economical means for disposing of similar lawsuits” while simultaneously “protecting defendants from inconsistent obligations and the due process rights of absentee class members.” [Citations omitted.] The underlying question in any class action certification is whether the class action device provides tire most effecting and just method to resolve the controversy at hand.’ [Citation omitted.]” (Emphasis added.) Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 303-04, 263 P.3d 767 (2011).
See 3 Rubenstein, Newberg on Class Actions § 7:26 (5th ed. 2013) (discussing due process principles underlying requirement in FRCP 23(c)(1)(B) that “ ‘[a]n order that certifies a class action must define the class and the class claims, issues, or defenses/ ” which language mirrors statutory language currently found in K.S.A. 2013 Supp. 60-223[c] but was not part of K.S.A. 2000 Supp. 60-223 when the court issued the certification order in this case).
Thus, we conclude that while principles of notice pleading control at the outset of a case, a plaintiff must necessarily more closely define the claim or claims when seeking class certification. Such definiteness serves to properly define the class, to determine whether the filing plaintiff is a proper class representative, to define the question on which class certification is sought, and to adequately inform potential class members of what claim or claims are involved so they can determine whether to opt out of class membership as provided under K.S.A. 2000 Supp. 60-223(c)(2).
Our courts have not yet considered at length the need to define the claim or claims at the class certification stage, but tire federal courts have. For example, the United States Supreme Court has explained:
“As we noted in Coopers & Lyhrand v. Livesay, 437 U.S. 463, [469, 98 S. Ct. 2454, 57 L. Ed. 2d 351 (1978)], ‘the class determination generally involves considerations that are “enmeshed in the factual and legal issues comprising the plaintiffs cause of action.”’ [Citations omitted.] Sometimes the issues are plain enough from the pleadings to determine whether the interests of the absent parties are fairly encompassed within the named plaintiff s claim, and sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 160, 102 S. Ct. 2364, 72 L. Ed. 2d 740 (1982).
The Third Circuit Court of Appeals also considered the necessity of defining the claim or claims at the class certification stage in Wachtel v. Guardian Life Ins. Co., 453 F.3d 179, 184 (3d Cir. 2006). That court ultimately held:
“[T]he proper substantive inquiry for an appellate tribunal reviewing a certification order for Rule 23(c)(1)(B) compliance is whether the precise parameters defining the class and a complete list of the claims, issues, or defenses to be treated on a class basis are readily discernible from the text either of the certification order itself or of an incorporated memorandum opinion.” 453 F.3d at 185.
In arriving at this holding, the Third Circuit explained several policy reasons underlying the need for a clear definition of the class’ claim or claims at the certification stage. We find the following discussion by the Third Circuit particularly pertinent here:
“We acknowledge that class actions often present extraordinarily complex factual and legal scenarios, such that a complete list of the claims, issues, or defenses appropriate for class treatment may be difficult to discern or articulate at the time of certification. In addition, the 2003 amendments to the Rule eliminated so-called ‘conditional’ certifications — formerly available under Rule 23(c)(1)(C)— such that a trial court may not certify only a limited list of class claims or issues while explicitly delaying decision on other claims. The potential difficulty posed by tlie requirements of Rule 23(c)(1)(B), however, is tacitly acknowledged and directly mitigated by amended Rule 23(c)(1)(C), which allows that a certification order may be ‘altered or amended’ at any time ‘before final judgment.’ Furthermore, to the extent that circumstances genuinely warrant some evolution in the matters to be treated on a class basis in a given action, the full and clear articulation of those claims, issues, or defenses intended to be treated on a class basis at the time of the original certification order will provide a defined status quo that likely will serve to streamline any later process of adjustment.” 453 F.3d at 186-87 n.8.
Granted, when the class was certified in this case approximately 13 years ago, K.S.A. 2000 Supp. 60-223 did not explicitly include the requirement to define the claim or claims involved. Moreover, the class was certified before much of the discovery was conducted, and there has not yet been a pretrial conference in this case. Nonetheless, we conclude that the certification order and class notice serve a purpose similar to a pretrial order: they each necessarily more closely define the claim or claims involved than required early in the case under our notice-pleading rules.
This is not to say that a plaintiff class is forever bound by the claim or claims identified in the certification order. On the contrary, there are statutory provisions allowing for modification of the certification order after the class has been certified. See K.S.A. 2013 Supp. 60-223(c)(l)(C) (“An order that grants or denies class certification may be altered or amended before final judgment.”); accord General Telephone, 457 U.S. at 160 (noting that under Rule 23 of F.R. Civ. P., “[ejven after a certification order is entered, the judge remains free to modify it in the light of subsequent developments in the litigation. . . . This flexibility enhances the usefulness of the class-action device; actual, not presumed, conformance with Rule 23[a] remains, however, indispensable.”).
To the extent that such a modification materially alters the nature of the claim or relief sought, it seems to us that the same due process principles discussed above dictate that an amended notice would need to be provided to class members. Here, Plaintiffs did not move to file a second amended petition until after the court’s determination in July 2011 that they had alleged only a singular claim of price-fixing that was unrelated to the smoking and health conspiracies litigated in the RICO case. Even then, they explicitly did so only to “clarify” that they had always raised a broader “restraint of trade” claim with both price and nonprice components. Plaintiffs never sought to modify the class certification order or to serve an additional class notice when discovery was complete, when Defendants moved for summary judgment, or even when the district court ruled that Plaintiffs’ claim was limited to a wholesale price-fixing conspiracy.
Applying these due process principles to the facts of this case, we find the wholesale price-fixing claim on which the class was certified and notice was provided to be significantly distinct from the nonprice component or smoking and health component that Plaintiffs contend was part of their case from the beginning. A class member deciding not to opt out of a price-fixing class would have no reason to believe that he or she would also be barred from bringing a future action for an antitrust conspiracy not involving direct price-fixing, such as rigging the market supply or artificially maintaining demand by means of misstatements and misrepresentations about the health effects of smoking. Further, a defendant in a class action case is entitled to be protected against later suits by plaintiffs who failed to opt out of the class and who later assert claims identified in the class certification order and notice to tire prospective class members.
Our conclusion on the breadth of Plaintiff s claim is not altered by the discovery proceedings both prior to and after the class was certified in this case.
Despite Plaintiffs’ insistence to the contrary, the breadth that Plaintiffs now attribute to their claim was never specifically recognized by the district court during the decade of litigation that led to this appeal. After 9 years of litigation, Judge Tom R. Smith retired and ultimately Senior Judge Jack A. Murphy was assigned to this case and made the rulings now subject to appeal. Plaintiffs contend that Judge Smith held they had always stated the much broader claim of an international restraint-of-trade conspiracy and that he repeatedly “rejected” Defendants’ attempts to limit Plaintiffs’ claim to a domestic price-fixing conspiracy. Plaintiffs have cited to various points in the record where they argued before Judge Smith that their claim was much broader than a wholesale price-fixing conspiracy. But Plaintiffs fail to cite where in the record Judge Smith ever ruled, as they suggest, diat their claim was indeed substantially broader. Defendants tell us this is because he never did.
Indeed, in our close, independent review of the vast record of Judge Smith’s oral and written rulings over the years on Plaintiffs’ various discovery motions, we did not find that Judge Smith ever explicitly ruled that Plaintiffs stated a claim broader than the wholesale price-fixing claim identified in the class notice. Rather, in granting Plaintiffs’ motions to compel, Judge Smith either overruled Defendants’ privilege objections or found the documents were minimally relevant because they mentioned price and, therefore, were discoverable. That those documents also reflect conduct relevant to Plaintiffs’ arguments that they have always stated a broader claim does not, by implication alone, mean that Judge Smith agreed or ruled they had, indeed, stated a claim for anything other than wholesale price-fixing.
Defendants eventually shifted the focus of their ongoing objections to objections based on claims of privilege. Disputes over these objections — particularly whether the joint-defense privilege is recognized under Kansas iaw — prompted Judge Smith’s appointment of Judge Paul Buchanan as a special master. Plaintiffs suggested to Judge Buchanan that their claims mirrored those in the RICO case, so they argued the crime-fraud exception to the attorney-client privilege that was applied in the RICO case applied here as well. But Judge Buchanan rejected Plaintiffs’ attempts to equate their case to the RICO case, stating: “This is an anti-trust price fixing case, and therefore the crime fraud found in [the RICO] case does not apply to this case.” And Judge Smith subsequently overruled Plaintiffs’ objections to this conclusion.
Plaintiffs suggest on appeal that they justifiably relied upon Judge Smith’s ruling drat they had, indeed, stated the broader claim to formulate their litigation strategy, and to now hold otherwise would somehow be inequitable. They argue that “[i]n reliance on [Judge Smith’s] repeated rulings,” they retained experts and otherwise prepared to litigate their more broad claims of “restraints of trade resulting from the price and non-price conspiracy which adversely effected [sic] price directly as well as indirectiy by supply restriction and demand enhancement.” Their argument continues: “In further reliance thereon,” the class did not amend their pleading to provide more detail on their theory of the case.
Plaintiffs cite no authority in support of their suggestion that they can be excused on equitable principles of justifiable rebanee for taking or not taking certain procedural steps in the course of their litigation based on their perception of the district court’s rulings. Accordingly, we hold that they have waived any rebanee argument. See State v. Berriozabal, 291 Kan. 568, 594, 243 P.3d 352 (2010) (holding failure to support argument with pertinent authority or to show why argument is sound despite lack of supporting authority or in face of contrary authority is akin to fading to brief issue, meaning it is deemed waived and abandoned).
To die extent the parties suggest that we should apply principles of tire common-law doctrine of judicial estoppel here, we do not find the circumstances of this case call on us to exercise our discretion to apply that doctrine. See State v. Hargrove, 48 Kan. App. 2d 522, 548-549, 293 P.3d 787 (2013) (citing New Hampshire v. Maine, 532 U.S. 742, 749, 121 S. Ct. 1808, 149 L. Ed. 2d 968 [2001], and Pegram v. Herdrich, 530 U.S. 211, 227 n.8, 120 S. Ct. 2143, 147 L. Ed. 2d 164 [2000], in discussing common-law doctrine of judicial estoppel).
In sum, we conclude that Plaintiffs’ claim against Defendants has always been solely based on wholesale price-fixing. Thus, we proceed to determine the propriety of summary judgment for Defendants on that claim.
Propriety of Summary Judgment
Defendants jointly insist they are entitled to summary judgment in this case just as they were on the same claim in other jurisdictions. Two Defendants, PMI and BATCo, separately contend they are entitled to summary judgment for the additional reason that they never engaged in activities in Kansas so as to subject them to the KRTA.
In the three other cases involving this same price-fixing conspiracy, the courts found summary judgment was proper because plaintiffs failed to come forward with either direct evidence of a wholesale price-fixing conspiracy or sufficient circumstantial evidence from which a factfinder could reasonably infer such a conspiracy; that is, the circumstantial evidence upon which plaintiffs relied was inadequate to establish a reasonable inference of a price-fixing conspiracy. See Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287, 1319-21 (11th Cir. 2003); Romero v. Philip Morris Inc., 148 N.M. 713, 724-32, 242 P.3d 280 (2010); Ren v. Philip Morris Companies, Inc., No. 00-004035-CZ, unpublished Michigan Circuit Court opinion filed September 10, 2003, Slip op. at 78. Two of the courts also concluded that even if plaintiffs had come forward with sufficient circumstantial evidence to create a rebuttable presumption of a conspiracy, the tobacco companies made a prima facie case supporting summary judgment by showing plaintiffs’ theoiy did not make economic sense. Williamson Oil, 346 F.3d at 1320-21; Romero, 148 N.M. at 731-32.
Surviving summary judgment in antitrust cases alleging horizontal price-fixing
Plaintiffs respond that these other jurisdictions’ decisions are inapposite because Kansas law differs, particularly with regard to what they must show to take their case to a jury. For reasons explained below, we disagree.
As already set forth at the outset of our opinion, summary judgment is appropriate under Kansas law if 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 movant is entitled to judgment as a matter of law. We resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the nonmoving party and must deny summary judgment if reasonable minds could differ as to the conclusions drawn from the evidence. See O’Brien v. Leegin Creative Leather Products, Inc., 294 Kan. 318, 330, 277 P.3d 1062 (2012) (O’Brien I). The question is whether these standards, alone, mandate a different result than that reached in the federal MDL and the New Mexico and Michigan state proceedings.
In assessing the propriety of the summary judgment motions filed by the tobacco companies in tire other jurisdictions, each court’s focus was two-fold: (1) what constitutes a reasonable inference in this antitrust context, and (2) what facts are material to plaintiffs’ claim of a horizontal price-fixing conspiracy. See, e.g., Romero, 148 N.M. at 720-21.
The substantive law applied in these other cases takes into account important economic considerations that arise in antitrust cases in which claims of horizontal price-fixing in an oligopoly are supported only by circumstantial evidence of parallel pricing. There is no dispute that the tobacco industry, which involves five companies that manufacture more than 97% of cigarettes sold in the United States, is an oligopoly. See Williamson Oil, 346 F.3d at 1291; Romero, 148 N.M. at 725.
In particular, the other cases focused on the practice of competitors engaging in conscious parallelism. Kansas courts have not yet discussed this practice. But as explained by the Third Circuit in In re Baby Food Antitrust, 166 F.3d 112, 121-22 (3d Cir. 1999):
“Conscious parallelism, sometimes called oligopolistic price coordination, is described as the process ‘not in itself unlawful, by which firms in a concentrated market might in effect share monopoly power, setting their prices at a prefixed maximizing, supracompetitive level by recognizing their shared economic interests and their interdependence with respect to price and output decisions.’ Brooke Group v. Brown & Williamson Tobacco Corporation, 509 U.S. 209, 227, 113 S. Ct. 2578, 125 L. Ed. 2d 168 (1993). The theory of conscious parallelism is that uniform conduct of pricing by competitors permits a court to infer the existence of a conspiracy between those competitors. [Citation omitted.] The theory is generally applied to highly concentrated markets where few sellers exist and where they establish their prices, not by express agreement, but rather in a consciously parallel fashion. [Citation omitted.] Thus, when two or more competitors in such a market act separately but in parallel fashion in their pricing decisions, this may provide probative evidence of the existence of an understanding by the competitors to fix prices. [Citation omitted.]
“In an oligopolistic market, meaning a market where there are few sellers, interdependent parallelism can be a necessary fact of life but be the result of independent pricing decisions.
‘[I]n a market served by three large companies, each firm must know that if it reduces its price and increases its sales at the expense of its rivals, they will notice the sales loss, identify the cause, and probably respond. In short, each firm is aware of its impact upon tire others. Though each may independently decide upon its own course of action, any rational decision must take into account the anticipated reaction of the other two firms. Whenever rational decision-making requires an estimate of tire impact of any decision on the remaining firms and an estimate of their response, decisions are said to be “interdependent.” Because of their mutual awareness, oligopolists’ decisions may be interdependent although arrived at independently.’
Areeda, Antitrust Law § 1429 (1986). [Citation omitted.]
“Because the evidence of conscious parallelism is circumstantial in nature, courts are concerned that they do not punish unilateral, independent conduct of competitors. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 594, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986). They therefore require that evidence of a defendant’s parallel pricing be supplemented with ‘plus factors.’ [Citation omitted.] The simple term ‘plus factors’ refers to ‘the additional facts or factors required to be proved as a prerequisite to finding that parallel action amounts to a conspiracy.’ Areeda, Antitrust Law § 1433(e). They are necessary conditions for the conspiracy inference. [Citation omitted]; Areeda, § 1434. They show that the allegedly wrongful conduct of the defense was conscious and not the result of independent business decisions of the competitors. The plus factors may include, and often do, evidence demonstrating that the defendants: (1) acted contrary to their economic interests, and (2) were motivated to enter into a price fixing conspiracy. [Citation omitted.]” (Emphasis added.)
The Eleventh Circuit Court of Appeals further explained the purpose for this “summary judgment formulation . . . .employed in price fixing cases” as follows:
“More frequently, price fixing plaintiffs are relegated to relying on indirect means of proof. The problem with this reliance on circumstantial evidence, however, is that such evidence is by its nature ambiguous, and necessarily requires the drawing of one or more inferences in order to substantiate claims of illegal conspiracy. Over time, courts have become attuned to the economic costs associated with using circumstantial evidence to distinguish between altogether lawful, independent, consciously parallel decision-making within an oligopoly on the one hand, and illegal, collusive price fixing on the other. See, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 594, 106 S. Ct. 1348, 1360, 89 L. Ed. 2d 538 (1986) (’[Mistaken inferences in cases such as this one are especially costly, because they chill the very conduct the antitrust laws are designed to protect. “[W]e must be concerned lest a rule or precedent that authorizes a search for a particular type of undesirable pricing behavior end up by discouraging legitimate price competition.’” (citing Monsanto Co. v. Spray-Rite Serv. Corp., 465 U.S. 752, 763-64, 104 S. Ct. 1464, 1470, 79 L. Ed. 2d 775 (1984) and quoting Barry Wright Corp. v. ITT Grinnell Corp., 724 F.2d 227, 234 (1st Cir.1983))).” Williamson Oil, 346 F.3d at 1300.
With these important economic considerations in mind, the other courts that have affirmed summary judgment for the tobacco companies on a wholesale price-fixing claim brought under those jurisdictions’ antitrust laws applied the following summary judgment formulation:
“ ‘To survive a motion for summary judgment... a plaintiff seeking damages for [collusive price fixing based on ambiguous circumstantial evidence] . . . must present evidence “that tends to exclude the possibility” that the alleged conspirators acted independently! — i.e., “plus factors”].’ Matsushita, 475 U.S. at 588, 106 S. Ct. at 1356 (quoting Monsanto, 465 U.S. at 764, 104 S. Ct. at 1471).” Williamson Oil, 346 F.3d at 1300.
Plaintiffs complain this standard conflicts with the standards we must apply under Kansas law. Their complaint focuses in large part on the Eleventh Circuit’s explanation that “the existence of ‘plus factors’. . . remove [a plaintiffs] evidence from the realm of equipoise and render that evidence more probative of conspiracy than of conscious parallelism. [Citations omitted.]” Williamson Oil, 346 F.3d at 1301. According to Plaintiffs, the notion that a “plus factor” must be shown to withstand summary judgment conflicts with the following principles of Kansas law:
• Summary judgment cannot Me when equal inferences arise from circumstantial evidence for and against an element of a plaintiff s cause of action.
• A court must resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom summary judgment is sought.
• Circumstantial evidence can serve as proof of the elements of a theory of liability even though other reasonable theories are not excluded by such evidence.
In a somewhat analogous situation, our Supreme Court in O’Brien I addressed the concept obliquely when considering evidence to support a claim of vertical price-fixing. In O’Brien I, the plaintiffs, a class of consumers of handbags, accessories, and luggage, contended that Brighton, the defendant manufacturer, adopted a pricing strategy that resulted in illegal price-fixing under tire KRTA. The case involved claims of both horizontal and vertical price-fixing. The case was resolved in the district court by summary judgment. On appeal, our Supreme Court did not reach the question of what evidence was needed for the plaintiffs’ horizontal price-fixing claim to survive summary judgment because that issue was not properly before it. 294 Kan. at 351. But the court did consider Brighton’s argument on cross-appeal that it was entitled to partial summary judgment with respect to the vertical price-fixing claim, which involved merchandise sold at certain luggage and “Heart Store” retail stores because the plaintiffs failed to come forward with evidence of an agreement and concerted action between Brighton and these retailers. 294 Kan. at 355-56.
In resolving the issue, our Supreme Court first determined that an illegal “arrangement” under K.S.A. 50-112 demands “something more than merely a unilateral pricing policy adopted by a wholesale supplier in tire position of Brighton.” 294 Kan. at 356. The court then reasoned:
“Because K.S.A. 50-112 and § 1 of the Sherman Act share the ‘between persons’ language, ... we look to interpreting United States Supreme Court precedent for assistance in understanding what, short of an express agreement, qualifies as more than merely unilateral behavior. Has O’Brien mustered enough evidence to avoid summary judgment on those purchases made at Brighton retailers who were not parties to Heart Store or luggage store applications or agreements?
“In Monsanto[, 465 U.S. at 763], tire Court ruled that, under § 1 of the Sherman Act, a price-fixing case must include ‘evidence that tends to exclude the possibility of independent action by the manufacturer and distributor.’ ‘[T]here must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objectivef.]’. . . The Court acknowledged that evidence of complaints about discounting can be probative; however, there must be additional evidence of unlawful conduct. [Citation omitted].” (Emphasis added.) O’Brien I, 294 Kan. at 356-57.
After pointing out that the evidence in O’Brien I was “reminiscent of that before the United States Supreme Court in Monsanto Co.,” our Supreme Court observed:
“The Court ultimately stated in Monsanto Co. that it was reasonable to conclude that the termination of a noncomplying distributor was pursuant to a pricing agreement rather than unilateral pricing policy because it was ‘necessary for competing distributors contemplating compliance with suggested prices to know that those who do not comply will be terminated.’ [Citation omitted.] The Court decided that the plaintiff had marshaled enough evidence to raise a jury issue. [Citation omitted.]
“We reach a similar conclusion here.... This is not a case in which the plaintiff can show only a unilateral pricing policy or action. A genuine issue of material fact remains for trial. . . .” O’Brien I, 294 Kan. at 358.
Though this conclusion in O’Brien I was not reached in the context of a claimed horizontal price-fixing conspiracy predicated on conscious parallelism among oligopolists, we find our Supreme Court’s reliance on the reasoning by the United States Supreme Court in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752, 104 S. Ct. 1464, 79 L. Ed. 2d 775 (1984), significant. That very same reasoning underlies the summary judgment formulation developed in Matsushita Elec. Industrial Co. v. Zenith Radio, 475 U.S. 574, 588, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986) (citing Monsanto, 465 U.S. at 764, in concluding that to survive summary judgment, plaintiffs had to “show that the inference of conspiracy is reasonable in light of tire competing inferences of independent action or collusive action that could not have harmed” them). In short, O’Brien I seems to make clear that the requirement that a plaintiff must show more than unilateral pricing activities in order to withstand summary judgment in a price-fixing case brought under the KRTA is consistent with our state standards for summary judgment.
Granted, it is settled law in Kansas that when reasonable minds can differ as to the conclusions drawn from the evidence, summary judgment is inappropriate. See Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). But the antitrust cases in the Monsanto line make clear that reasonable minds cannot infer that price-fixing is afoot merely from conscious parallel pricing conduct of oligopolists. Something more must be shown to establish a reasonable inference that such competitors acted in concert. Reasonable minds could not draw a reasonable inference of price-fixing from evidence of conscious parallel pricing in an oligopolistic market with nothing more. As noted earlier in the court’s discussion of conscious parallelism in In re Baby Food Antitrust, in a market served by a few large firms,
“ ‘each firm must know that if it reduces its price and increases its sales at the expense of its rivals, they will notice the sales loss, identify the cause, and probably respond. In short, each firm is aware of its impact upon the others. Though each may independently decide upon its own course of action, any rational decision must take into account the anticipated reaction of the otheifs] .... Because of their mutual awareness,’ their ‘decisions may be interdependent although arrived at independently.’ (6 Areeda, Antitrust Law [1986] 1429a, p. 175.) In such a market. . . prices may move generally upward across all of the firms more or less together, rising quickly and falling slowly, and may do so interdependently but nevertheless independently. (See [6 Areeda, Antitrust Law] 1429b, pp. 175-177.) For collusion, there must be more than interdependence.” Aguilar v. Atlantic Richfield Co., 25 Cal. 4th 826, 864, 107 Cal. Rptr. 2d 841, 24 P.3d 493 (2001).
This is when evidence of a “plus factor” comes into play. As noted in Williamson Oil, 346 F.3d at 1310, courts need to
“exercise prudence in labeling a given action as being contraiy to the actor’s economic interests, lest we be too quick to second-guess well-intentioned business judgments of all lands. [Citation omitted.] Accordingly, [plaintiffs alleging illegal price-fixing in an oligopolistic market] must show more than that a particular action did not ultimately work to a manufacturer’s financial advantage. Instead . . . the action must ‘tend[] to exclude the possibility of independent action.’ Thus, if a benign explanation for the action is equally or more plausible than a collusive explanation, the action cannot constitute a plus factor.”
We do not find tire requirement of a “plus factor” to be inconsistent with Kansas law. As the federal courts have consistently explained, tins standard for surviving summary judgment in an an titrust price-fixing case based on circumstantial evidence does not “introduce a special burden on plaintiffs facing summaiy judgment in antitrust cases.” Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468, 112 S. Ct. 2072, 119 L. Ed. 2d 265 (1992). Rather, “Matsushita demands only that the nonmoving party’s inferences be reasonable in order to reach die jury, a requirement that was not invented, but merely articulated, in that decision.” Eastman Kodak, 504 U.S. at 468; see Tops Markets, Inc. v. Quality Markets, Inc., 142 F.3d 90, 95 (2d Cir. 1998) (citing Matsushita, 475 U.S. at 588, in explaining that “[a]lthough all reasonable inferences are drawn in the nonmovant’s favor, in an antitrust case, those inferences must be reasonable in light of competing inferences of acceptable conduct”); Aguilar, 25 Cal. 4th at 857 (recognizing in this context that inference of unlawful conspiracy required by Matsushita “is reasonable if, and only if, it implies unlawful conspiracy more likely than permissible competition). In sum, the “plus factor” standard is simply an articulation of the requirement that an inference drawn from the plaintiffs circumstantial evidence offered to establish collusive pricing must be reasonable. As also stated in Williamson Oil, 346 F.3d at 1303, “[t]he Tends to exclude . . .’ standard articulated in Matsushita .. . simply represents an explication of [the reasonable inference] requirement; it does not represent a new hurdle. In other words, evidence creates the requisite reasonable inference of conspiracy if it ‘tends to exclude the possibility that the alleged conspirators acted independently.’ ”
We see no sound reason to stray from this accepted body of caselaw and economic analysis by declaring conscious parallelism with nothing more to be illegal under the KRTA. Without evidence of some plus factor that tends to establish Defendants’ pricing policies were the product of an illegal price-fixing conspiracy in violation of the KRTA, a jury could not reasonably find for Plaintiffs.
Thus, we conclude that to establish a material question of fact and thereby survive summary judgment, Plaintiffs must come forward with evidence that Defendants’ wholesale pricing practices resulted from something more than legal conscious parallelism. This conclusion is based on the notion that in requiring something more than unilateral behavior, the KRTA does not reject what we perceive to be an economic proposition which has been universally applied in cases around the country: that conscious parallelism in pricing products in an oligopoly market is not sufficient, in and of itself, to establish illegal conduct. If this is so, then it is incumbent upon Plaintiffs to present further evidence that tends to establish that synchronous conduct of Defendants is the product of an illegal conspiracy. Otherwise, why would one ever send to trial a case in which there is no evidence that, to a reasonable juror, tends to establish illegal conduct?
Plus factors
What evidence can constitute a plus factor in die context of Plaintiffs’ claim here? While diere are no bright-line rules to guide this query, the federal courts have offered some guidance on what may or may not be enough to constitute a plus factor. For example, in Williamson Oil the court stressed that “if a benign explanation for the [defendants’] action is equally or more plausible than a collusive explanation, the action cannot constitute a plus factor.” 346 F.3d at 1310. Further, evidence that would require the jury to “engage in speculation and conjecture to such a degree as to render its finding 'a guess or mere possibility’ ” does not constitute a plus factor. Holiday Wholesale Grocery v. Philip Morris Inc., 231 F. Supp. 2d 1253, 1271 (N.D. Ga. 2002), aff'd sub nom. Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287 (11th Cir. 2003). On the other hand, “ ‘a showing that the defendants’ behavior would not be reasonable or explicable ii.e. not in their legitimate economic self-interest) if they were not conspiring to fix prices or otherwise restrain trade[]’ [citation omitted]” can constitute a plus factor. Williamson Oil, 346 F.3d at 1301. In other words, “any showing by [a plaintiff] that ‘tend[s] to exclude the possibility of independent action’ can qualify as a plus factor.’ ” 346 F.3d at 1301 (quoting City of Tuscaloosa v. Harcros Chemicals, Inc., 158 F.3d 548, 571 n.35 [11th Cir. 1998]); see Shulman, Proof of Conspiracy in Antitrust Cases & the Oligopoly Problem, 4 Sedona Conf. J. 1, 12-13 (Fall 2003) (setting forth list that “synthesizes [plus] factors that have received mention in cases and in law review articles”).
Regardless, to be a viable plus factor, a plaintiff s showing must make economic sense to a reasonable jury. Eastman Kodak, 504 U.S. at 468-69. Thus, while it is not the role of a court to substitute itself for the factfinder in examining claimed plus factors at the summary judgment stage, die court must determine the “reasonableness of the inferences that c[an] be drawn from the evidence, [which are] tiireshold legal determinations that appropriately [are] made by the district court.” Williamson Oil, 346 F.3d at 1304.
With these standards in mind, we turn to consider the evidence of plus factors offered by Plaintiffs in this case. Because we have concluded that Plaintiffs’ claim is for wholesale price-fixing and not separate claims for artificially propping up demand by conspiring on health issues and artificially suppressing supply by engaging in price-fixing in foreign markets, we will examine these two theories to determine whether either constitutes a plus factor from which a reasonable juror could conclude that Defendants’ parallel pricing was the product of an illegal conspiracy tp fix prices. Other claimed plus factors summarily enumerated in Plaintiffs’ appellate brief are as follows:
• Structure of the market with few competitors;
• Meetings or communications involving high-level executives that present an opportunity to conspire or a high degree of interfirm communications;
• Extensive information exchanges or the reciprocal exchange of price information;
• History of collusion in the industry or among Defendants and ongoing conspiracies for the same or similar’products;
• Acting contrary to independent self-interest;
• Changing an established business practice that has been followed over a prolonged period of time; and
• Giving pretextual reasons for actions.
As evidence for each, Plaintiffs cite broadly to six volumes of the record containing their experts’ reports. We will consider each asserted plus factor in turn.
Structure of the Market: As support for their contention that the structure of tire oligopolistic cigarette market is evidence of a plus factor, Plaintiffs direct us to In re Flat Glass Antitrust Litigation, 385 F.3d 350 (3d Cir. 2004), in which the court relied on the holding in In re High Fructose Com Syrup Antitrust Lit., 295 F.3d 651, 655 (7th Cir. 2002). We assume Plaintiffs are referring to those courts’ recognition that “ ‘evidence that the structure of the market was such as to make secret price fixing feasible’ ” can support the plus factor of an existing motive by a defendant to enter into a price-fixing conspiracy. Flat Glass, 385 F.3d at 360 (quoting High Fructose, 295 F.3d at 655). Notably, however, both courts went on to recognize that this same factor “largely restate[s] the phenomenon of interdependence,” so it “may not suffice — by [itself] — to defeat summary judgment on a claim of horizontal price-fixing among oligopolists.” Flat Glass, 385 F.3d at 360-61; see High Fructose, 295 F.3d at 655. Consequently, the court observed in Flat Glass, “this type of economic evidence is neither necessary nor sufficient to conclude that sufficient proof of an agreement exists to preclude summary judgment, but it is relevant and courts should as a general matter consider it.” 385 F.3d at 361 n.12.
So we will consider the evidence Plaintiffs offer in this regard. In a report that Plaintiffs submitted with their response to Defendants’ motions for summary judgment, Plaintiffs’ expert economist, Dr. Keith Leffler, made several general observations concerning the oligopolistic nature of the cigarette market. For example, Dr. Leffler opined: The cigarette market is “highly concentrated and conducive to successful collusive pricing.” “Five companies dominated cigarette production in the U.S., and three of them ‘account for about 90% of the market.’ ” Participants in the market face “very high” entry barriers. Thus, as reported by the Federal Trade Commission, the “ ‘entiy of additional firms into the market (or its prospect) is unlikely to upset the stability of a coordinated pricing strategy.’ ” Further, new entrants would be entering a cigarette market with declining demand and would face existing participants with “substantial excess capacity.” Additionally, Dr. Leffler observed that “the demand for cigarettes is highly inelastic,” meaning “consumers are not sensitive to cigarette prices” in making a buying decision and “there are no effective substitutes for cigarettes.”
This same or similar plus factor was rejected in the federal MDL proceedings. There, the Eleventh Circuit noted the tobacco industry “features a concentration of sellers, inelastic demand at competitive prices, high barriers to entry, a fungible product, principal firms selling at the same level in the chain of distribution, prices that can be changed quickly, [and] cooperative practices.” Williamson Oil, 346 F.3d at 1296. The court concluded that the structure of the market did not constitute a plus factor because “the majority of the market characteristics on which the class focuses are simply indicia that the tobacco industry is an oligopoly, which is perfectly legal.” 346 F.3d at 1317.
Dr. Leffler also served as the plaintiffs’ expert in the parallel litigation in New Mexico in Romero v. Philip Morris Inc., 148 N.M. 713, 242 P.3d 280 (2010). There, the plaintiffs also alleged a plus factor based on the structure of the market, focusing primarily on “a highly concentrated market, cigarette fungibility, high barriers to entry in the industry, absence of close substitutes, and a history of collusion.” 148 N.M. at 729. The New Mexico Supreme Court observed that a majority of these factors “are nothing more than inherent characteristics of an oligopoly and cannot tend to exclude independent action.” 148 N.M. at 729.
We agree with the reasoning of these courts and reject the structure of the cigarette market as a viable plus factor here. A plus factor must be something that tips the scales from otherwise legal synchronous conduct among competitors in an oligopoly to a price-fixing conspiracy condemned by our antitrust laws. Conscious parallelism, which is lawful conduct, arises in markets containing these veiy factors which define an oligopoly. Thus, these factors, which describe market characteristics for legal conscious parallelism, cannot tip the evidentiary scale out of equipoise so as to provide evidence from which a reasonable factfinder could infer illegal conduct.
Meetings of High-Level Executives; Interfirm Communications: The next plus factor summarily cited by Plaintiffs in their brief is “[m]eetings and/or communications of high-level executives presenting an opportunity to conspire and/or high degree of interfirm communications.” As support, Plaintiffs cite two unpublished opin ions without attaching copies of those opinions or offering any explanation for why they support this proposition. See Supreme Court Rule 7.04(g)(2)(C) (2013 Kan. Ct. R. Annot. 59) (requiring copy of unpublished opinion to be attached to any document that cites it). In short, Plaintiffs appear to suggest a jury could reasonably infer that Defendants conspired to fix prices from the mere fact that they had numerous opportunities to do so.
This plus factor was also rejected in the federal MDL. The Eleventh Circuit noted that “the opportunity to fix prices without any showing that [the defendant tobacco companies] actually conspired does not tend to exclude the possibility that they did not avail themselves of such opportunity or, conversely, that they actually did conspire.” Williamson Oil, 346 F. 3d at 1319.
The court in Romero also rejected this plus factor. That court concluded that “the fact that Defendants may have met does not reasonably lead to the inference that they conspired to discuss price fixing. ‘[M]ere contacts and communications, or the mere opportunity to conspire, among antitrust defendants is insufficient evidence from which to infer an anticompetitive conspiracy . . . .’ [Citations omitted.]” 148 N.M. at 730-31; see Seagood Trading Corp. v. Jerrico, Inc., 924 F.2d 1555, 1575 (11th Cir. 1991) (same); Bolt v. Halifax Hosp. Medical Center, 891 F.2d 810, 827 (11th Cir. 1990) (same).
We see no reason not to reject Plaintiffs’ identical contention here for these same reasons.
Reciprocal Exchange of Price Information: Plaintiffs suggest that Defendants’ exchange of pricing information is evidence that tends to exclude independent conduct. Some additional factual background is required to provide context for this contention.
Plaintiffs’ summaiy contention here relates to the undisputed fact that Manufacturing Defendants exchanged shipment-to-wholesale cigarette volume data through a common consultant, Management Science Associates (MSA). In their joint statement of uncontroverted facts, Manufacturing Defendants stated that “participants in [their] respective wholesaler incentive programs compiled and reported to MSA information regarding the volume of their shipments to retailers.” Defendants further stated that it was uncontroverted that “[participants in [their] respective wholesaler incentive programs were not asked to provide, and as a function of their participation did not provide, [Manufacturing] Defendants or MSA with any information regarding pricing or discounts.”
In their response, Plaintiffs contended these facts were controverted because the exchange of sales data served as a “means of facilitating the monitoring of the conspiracy by all of the conspirators.” But we note that in responding to requests for admissions on this issue, when discussing Defendants’ use of MSA, Plaintiffs referred to the discussion in Williamson Oil on whether the exchange of sales data evidenced conduct to facilitate an illegal conspiracy or the lawful use of MSA to shift “the financial burden of gathering sales and market shar.e data.” 346 F.3d at 1313. Plaintiffs quoted Williamson Oil as follows: “[B]oth explanations are plausible, and thus, at the most, this action by PM stands in equipoise; that is, it is equally consistent with collusion as with lawful competition, and accordingly, under Matsushita and Harcros, it cannot represent a plus factor.” Williamson Oil, 346 F.3d at 1313.
Competitors are entitled to collect and use information about their competitors in conducting their business, and consideration of competitors’ prices is an important component of a pricing decision. See Wallace v. Bank of Bartlett, 55 F.3d 1166, 1169 (6th Cir. 1995), cert. denied 516 U.S. 1047 (1996); Aguilar, 25 Cal. 4th at 862-63. As Plaintiffs have apparently conceded, the use of MSA as a vehicle for exchanging information on sales volumes does not constitute a plus factor which assists the factfinder in its determination of whether Defendants’ synchronous pricing was the product of an illegal conspiracy. Thus, Plaintiffs have not established how this exchange of information tends to exclude the possibility of independent pricing decisions.
Historu of Collusion; Ongoing, Conspiracies for Same or Similar Product: The next plus factor advanced by Plaintiffs concerns the Defendants’ histoiy of collusion, which they suggest “includes ongoing conspiracies for the same or similar product.” As support for this contention, Plaintiffs summarily cite to two treatises: Shulman, Proof of Conspiracy in Antitrust Cases & the Oligopoly Problem, 4 Sedona Conf. J. at 9; and Posner, Antitrust Law 79 (2d ed. 2001). They also cite generally to Continental Co. v. Union Carbide, 370 U.S. 690, 699, 82 S. Ct. 1404, 8 L. Ed. 2d 777 (1962). Without more analysis, we can only presume that in doing so, Plaintiffs are likely referring us to the general recognition in that case that “ ‘the character and effect of a conspiracy are not to be judged by dismembering it and viewing its separate parts, but only by looking at it as a whole. [Citation omitted.]’ ” 370 U.S. at 699. We further surmise that the “[hjistory of collusion” generally referred to by Plaintiffs is tied largely to some of the same defendants’ violations of the Sherman Act as discussed in American Tobacco Co. v. United States, 328 U.S. 781, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946), which we will discuss below.
This same plus factor was raised and rejected in both the federal MDL and the New Mexico case. Both courts noted that the plaintiffs in those cases failed to explain how an antitrust case from 50 years ago tended to exclude the possibility that Defendants’ current pricing activities were the product of independent action. See Williamson Oil, 346 F.3d at 1317-18; Romero, 148 N.M. at 730.
From our review of Dr. Leffler’s report, it does not appear that Plaintiffs’ contention concerning the history of collusion has changed in this case. In his report, Dr. Leffler first directs us to the 1911 breakup of American Tobacco Company which resulted in 14 successor companies, including Liggett, Lorillard, RJR, and BATCo. See United States v. American Tobacco Co., 221 U.S. 106, 184-88, 31 S. Ct. 632, 55 L. Ed. 663 (1911); see also United States v. American Tobacco Co., 164 F.3d 700, 1024-25 (S.D.N.Y. 1908) (setting forth resulting dissolution decree). According to Dr. Lef-fler, “[t]he absence of vigorous price competition in the industry goes back to the turn of the century when the government ‘dissolved’ the Tobacco Trust by creating a highly concentrated industry run by the same executives that before explicitly acted to monopolize the industry.” Of course, the antitrust violation that led to that early governmental action was not a conspiracy among competitors in violation of § 1 of the Sherman Act but rather the unlawful exercise of monopoly power in violation of § 2 of the Act.
In 1944 American Tobacco, Liggett, and RJR were convicted of conspiracy in restraint of trade by price-fixing and other means. They were also convicted of a conspiracy to monopolize trade. American Tobacco Co. v. United States, 147 F.2d 93, 99, 120 (6th Cir. 1944), aff'd 328 U.S. 781, 784, 66 S. Ct. 1125, 90 L. Ed. 1575 (1946) (deciding limited question of whether actual exclusion of competitors is necessary to crime of monopolization, which was one of four counts of which these defendants were convicted).
In the Eleventh Circuit’s opinion in the MDL, the court noted that Plaintiffs “failed to direct [the district court] to any precedent for holding such to be indicative of a present antitrust violation” and “failed to do so on appeal as well.” Williamson Oil, 346 F.3d at 1318; see Holiday Wholesale Grocery, 231 F. Supp. 2d at 1305 (recognizing “[t]he law generally disfavors use of such ‘historical’ evidence. [Citations omitted.]” Similarly, the New Mexico Supreme Court in Romero, commenting on the 1944 Sherman Act violation found in American Tobacco Co., 147 F.2d 93, observed: “Plaintiffs do not explain how a case from more than fifty years ago is indicative of a present day price-fixing agreement, especially when only one of the current Defendants, RJR, was a defendant in [that] case.” Romero, 148 N.M. at 730.
We also note that at about the same time the conspiracy in the present case allegedly began, the United States Supreme Court stated in Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U.S. 209, 213, 113 S. Ct. 2578, 125 L. Ed. 2d 168 (1993): “Substantial evidence suggests that in recent decades, the industry reaped the benefits of prices above a competitive level, though not through unlawful conduct of the type that once characterized the industry.”
Plaintiffs contend the lock-step price moves of Defendants following Marlboro Friday in 1993 were the product of an illegal price-fixing conspiracy. Yet the 1980’s and 1990’s marked a period of intense wholesale price competition in the tobacco industry as evidenced by the findings in Brooke and in R.J. Reynolds Tobacco Co. v. Philip Morris Inc., 199 F. Supp. 2d 362, 380-86 (M.D.N.C. 2002). We conclude diat a reasonable factfinder would not reach back beyond this current period marked by competition to a time many decades earlier, when two of the numerous defendants in this case were found guilty under the Sherman Act, and infer from such a remote fact that all Defendants here were engaged in a price-fixing conspiracy in 1993. Thus, we do not find the claimed history of collusion to be a viable plus factor.
Acting. Contrary to Independent Self-Interest: Plaintiffs contend that Defendants’ wholesale pricing activities were contrary to their independent self-interests. On this point Dr. Leffler analyzed how RJR, followed by the other Manufacturing Defendants, reacted to Marlboro Friday. Dr. Leffler opined that rather than continuing to focus on maintaining or increasing the gap between discount and premium brands, which would have been in their economic self-interests, those Defendants gave into or aided PM-USA’s consolidation of the pricing structure of cigarettes, in turn “mak[ing] collusive pricing easier and . . . thereby facilitating] the alleged conspiracy.” Dr. Leffler likewise opined that PM-USA’s decision to cut prices was economically rational “[o]nly in [ejxpectation of [fjuture [p]rice increases” by means of, in part, the elimination of competition from the discount sector. Dr. Leffler offered at least three separate conclusions in this regard: (1) “The economic evidence indicates that it is highly unlikely that independent competitive behavior explains the reestablishment and maintenance of high cigarette[] prices after November 1993.” (2) “The economic evidence indicates that the price increases for cigarettes after November 1993 were consistent with effective collusion among the cigarette producers.” (Emphasis added.) (3) “The changes in market shares in the industry after November 1993 are consistent with an effective conspiracy to maintain the high average prices of cigarettes by substantially eliminating price competition between premium and discount cigarettes.” (Emphasis added.)
There is no dispute that evidence of actions contrary to economic self-interest can serve as a plus factor. Williamson Oil, 346 F.3d at 1310. But as the Eleventh Circuit observed, courts necessarily “must exercise prudence in labeling a given action as being contrary to the actor’s economic interests, lest we be too quick to second-guess well-intentioned business judgments of all kinds.” 346 F.3d at 1310. Thus, to establish this plus factor, it is not enough for a plaintiff to show that a particular action did not, in hindsight, ultimately work to a defendant’s financial advantage. Nor is it enough to say something other than self-interest might have motivated the pricing decision. Rather, “in the terms employed by Matsushita, tire action must ‘tend[] to exclude the possibility of independent action/ Thus, if a benign explanation for the action is equally or more plausible than a collusive explanation, the action cannot constitute a plus factor.” Williamson Oil, 346 F.3d at 1310.
Here, as we understand was also the case in the federal MDL, Plaintiffs’ expert questioned the economic sensibility of (1) the noninitiating Defendants following price increases, (2) Defendants involved in the discount segment of the market deciding not to continue to develop that market, (3) Defendants exchanging information through the MSA, and (4) Defendants making payment and market-allocation decisions as part of the settlements of certain tort cases in 1997. See 346 F.3d at 1310.
But the undisputed facts set forth by Defendants demonstrate that these actions were just as likely to be the result of independent decisions made in the economic interests of the individual Defendants. For example, Defendants heavily involved in tire discount segment of the market learned from PM-USA’s aggressive and unambiguous message that any further attempts by them to maintain or continue their attempts to widen the premium-discount price gap was not likely to lead to increased market gains or profits. Rather, Manufacturing Defendants’ “only viable route back to profitability was to increase prices; that they did so in a parallel manner does not establish collusion.” 346 F.3d at 1311.
In short, while Plaintiffs in this case did come forward with expert opinions of possible collusive purposes for Defendants’ pricing decisions, as was the case in the MDL, they did not come forward with evidence that tends to show those decisions were the result of collusion as opposed to independent and legal self-interested business judgments. This is not enough to establish a plus factor sufficient to survive summary judgment in a price-fixing claim involving competitors in an oligopoly.
Giving Pretextual Reasons for Actions: While Plaintiffs list this as a plus factor, they do not explain the “pretextual reasons” upon which they rely or how any such reasons tend to establish that Defendants’ synchronous pricing was a product of an illegal conspiracy rather than lawful conscious parallelism.
The only discussion we find to be possibly tied to this factor appears in the expert opinion of Dr. Jeffrey Harris. Dr. Harris opined that Defendants’ public denials of the health hazards of smoking and the private acknowledgment of the dangers of smoking “points to a collusive arrangement.” According to Dr. Harris, “any single company’s denial of causation would likely lose credibility if the other oligopolistic cigarette manufacturers admitted that smoking causes disease. Thus, the strategic decision to deny that smoking causes disease benefits any individual oligopolist only if the others act cooperatively to deny causation as well.” Dr. Harris also opined:
“A principal motive for manufacturers' joint denial that smoking causes disease is to bolster cigarette consumption and thus raise industry profits. However, there were other industry-wide benefits of joint denial. Starting in the early 1950’s, individual smokers began to bring lawsuits against companies. Uniform denial that smoking caused disease would help to insulate all defendant manufacturers from adverse judgments in such smokers’ lawsuits. However, if one company made an admission that smoking caused disease, such an admission could hurt tire others’ chances of a successful defense in court.”
We find no other possible evidence relating to this claimed plus factor. Because this evidence relates to the claim that Defendants’ conspiracy to keep hidden the adverse health effects of smoking constitutes a plus factor, we will address this claim in that context.
Foreign Price-Fixing. Conspiracy. Plaintiffs argue Defendants conspired to fix the prices of cigarettes in foreign countries, which, in turn, drove up cigarette prices in the United States. Plaintiffs contend this is because the foreign price-fixing diverted cigarettes from the domestic market, resulting in a decreased domestic supply of cigarettes which artificially propped up domestic wholesale prices. Plaintiffs contend this foreign price-fixing scheme constitutes a plus factor that supports the notion that Defendants’ conscious parallelism in establishing their wholesale cigarette prices was not merely the natural and wholly legal interdependent but independent pricing practices that occur in an oligopoly, but rather it was the product of an illegal agreement to fix tire domestic wholesale price of cigarettes.
Plaintiffs rely on the expert opinion of Dr. Leffler. According to Dr. Leffler, Defendants conspired to fix the prices of cigarettes outside the United States, including in “Canada, Europe, and numerous Latin American countries.” He contends that foreign conspiracies encourage suppliers to export cigarettes to the more lucrative foreign markets. Then, “as cigarettes are sent out of the United States, reducing U.S. supply, the prices in the United States are expected to increase.”
Of course, an “expected” price increase does not establish that any foreign price-fixing activities had an actual adverse impact on domestic cigarette prices. This is particularly so in light of Dr. Lef-fler s observation: “The market for the cigarettes has been declining since the 1980s, resulting in substantial excess capacity by the incumbent firms.” Seé also Brooke Group, 509 U.S. at 214.
According to the Federal Trade Commission, domestic cigarette sales for tire period 1990 to 1999 declined from 524 billion cigarettes to 411 billion cigarettes. R.J. Reynolds, 199 F. Supp. 2d at 367 n.3. At least one federal court has recognized as a result that RJR, Lorillard, and B&W “possess[ed] substantial excess capacity that would enable them to expand supply in order to meet any unsatisfied market demand.” 199 F. Supp. 2d at 384. These market circumstances “tend to break down patterns of [unlawful] pricing and produce price competition.” Brooke Group, 509 U.S. at 238.
We find it significant that neither Plaintiffs nor any of their experts have directed us to any evidence (or something more than equivocal hypotheses) that any diversion of cigarettes to foreign markets to meet die demands of a conspiracy there was not made up for by additional domestic cigarette production.
Plere, Dr. Leffler’s opinion goes beyond this supply/demand argument to posit that the foreign price-fixing “agreements in other markets aid in establishing and maintaining industry cooperation necessary for successful collusion.” As we understand it, Dr. Lef-fler’s contention is that when competitors collude in several foreign markets, if one conspirator “jumps ship” in one particular market, that conspirator’s position in another market where the conspirators’ enjoy inflated prices may be placed in jeopardy.
Further, and rather curiously, Dr. Leffler contends that the existence of a domestic price-fixing conspiracy promotes the success of the foreign price-fixing conspiracy by discouraging domestic suppliers not party to the foreign conspiracy from entering the foreign market and undercutting the fixed price. This theory, of course, provides no support for the notion that the claimed foreign price-fixing conspiracy provides evidence from which one can infer an agreement to fix prices in Kansas. Domestic conduct that is alleged to have furthered a conspiracy to fix prices in some foreign market is not relevant in this case.
In the federal MDL case, the defendants contended that their pricing agreements in foreign markets were consistent with local law. The Eleventh Circuit rejected the contention that evidence of foreign price-fixing conspiracies constituted a viable plus factor to support the proposition that the defendants’ parallel pricing in the United States was the product of an illegal conspiracy. The Eleventh Circuit reasoned that the plaintiffs failed to produce any evidence of any “palpable tie” between the tobacco companies’ overseas activities and pricing actions in the United States. Williamson Oil, 346 F.3d at 1317. The court further reasoned that any such evidence would not establish a prior wrongful act when the plaintiffs had not shown that the tobacco companies’ actions were unlawful under foreign law. 346 F.3d at 1317.
Likewise, in our present case Plaintiffs have not established that any alleged price-fixing activities by Defendants that underlie their allegations here were, in fact, unlawful under foreign law. Nor have plaintiffs produced any evidence of any “palpable tie” between the tobacco companies’ overseas activities and the pricing actions in the United States that underlie the price-fixing claim in this case. To the contrary, Plaintiffs’ own expert (Dr. Leffler) recognized market circumstances that would suggest the contrary. In sum, even if we were to accept as true Plaintiffs’ contentions that a foreign price-fixing conspiracy was afoot, Plaintiffs have not come forward with evidence to show such a conspiracy tends to establish Defendants’ domestic wholesale pricing was the product of an un lawful conspiracy. Rather, they have given us only speculative economic theory that simply is not enough to survive summary judgment on a horizontal price-fixing claim against an oligopoly.
Smoking and Health Conspirad/: Plaintiffs’ claim regarding a smoking and health conspiracy mirrors the claim raised in the federal MDL. See Williamson Oil, 346 F.3d at 1315-16. Accordingly, a detailed discussion of the Eleventh Circuit’s treatment of that plus factor is in order at the outset of our consideration of this plus factor.
The plaintiffs in Williamson Oil alleged that the tobacco companies “conspired during the 1950s to refrain from seeking any competitive advantage by developing more health-conscious tobacco products or by competing on the basis of health generally.” 346 F.3d at 1296. According to the plaintiffs, this health conspiracy remained effective during the price-fixing conspiracy period in Williamson Oil (which essentially mirrors tire “[cjlass [pjeriod” in our case) and “evidence[d] [the defendants’] agreement to fix prices.” 346 F.3d at 1315. But Professor Franklin Fisher, tire plaintiffs’ expert in Williamson Oil, cited no conduct in furtherance of this health conspiracy during the period of the price-fixing conspiracy. Rather, he opined that it was “ ‘entirely possible that [the tobacco companies’] decisions to limit health-based marketing in tire past continued to be felt between 1993 and 2000. Such decisions may have checked companies’ incentives to vigorously pursue health-related research.’ ” 346 F.3d at 1316 (quoting Holiday Wholesale Grocery, 231 F. Supp. 2d at 1311).
The Eleventh Circuit held this evidence was too speculative to constitute a plus factor. Williamson Oil, 346 F.3d at 1316. As support, the court cited Eastman Kodak Co. v. Image Technical Services, Inc., 504 U.S. 451, 468-69, 112 S. Ct. 2072, 119 L. Ed. 2d 265 (1992), for the proposition that “evidence of predatory pricing that is ‘ “speculative” and [is] not “reasonable” ’ is insufficient to withstand an antitrust defendant’s summary judgment motion” before concluding that an inference of misconduct cannot arise from mere speculation, which was all that the plaintiffs had brought before the court. Williamson Oil, 346 F.3d at 1316.
In our present case, and contrary to the situation in Williamson Oil, Plaintiffs cite conduct during the period of the alleged price-fixing conspiracy in which tobacco company executives, in furtherance of the health conspiracy, testified before Congress in 1994 that cigarette smoking is not addictive and the presence of nicotine does not make it so. According to Dr. Harris, this health conspiracy began to unravel in the late 1990’s and then ended “[w]ithin a 15-day period in June 2000, [when] all of the major cigarette manufacturers — [PM-USA, RJR,] and Lorillard, as well as [B&W]— made an abrupt about-face and admitted that smoking causes disease.”
The court in Williamson Oil found the plaintiffs’ evidence of a health conspiracy could not constitute a plus factor because
“[i]n essence, for a jury to infer from this evidence that appellees collusively fixed prices during the 1990s, it would have to engage in propensity reasoning, i.e., ‘they did it 40 years before so they probably did it again,’ albeit now with Lorillard on board and with the object of the conspiracy being prices as opposed to health.” 346 F.3d at 1316.
Similarly, under our rules of evidence, specifically K.S.A. 2013 Supp. 60-455, evidence of this health conspiracy may not be admitted “as the basis for an inference that [Defendants] committed another crime or civil wrong on another specified occasion.” But such evidence may be admitted “when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” K.S.A. 2013 Supp. 60-455. Further, this is not an exclusive list. “[T]hese eight are among the possibilities, not the only possibilities.” State v. Gunby, 282 Kan. 39, 53, 144 P.3d 647 (2006). To be admitted under K.S.A. 2013 Supp. 60-455, the evidence must be relevant. K.S.A. 60-401(b) defines relevant evidence as “evidence having any tendency in reason to prove any material fact.”
The district court opinion in the RICO case demonstrates ample — in fact, overwhelming — evidence of a conspiracy to hide from the public the deleterious effects of smoking. There is also evidence to support the argument that this conduct had the effect of artificially maintaining the demand for cigarettes at a level higher than would have been the case (at least for some period of time) had the public known and understood the dangers of smoking. The court held the defendants violated RICO by marketing and selling “their lethal product with zeal, with deception, with a single-minded focus on their financial success, and without regard for the human tragedy or social costs that success exacted.” United States v. Philip Morris USA, Inc., 449 F. Supp. 2d 1, 28 (D.D.C. 2006), aff'd in part and vacated in part by 566 F.3d 1095 (D.C. Cir. 2009), cert. denied 130 S. Ct. 3502, reh. denied 131 S. Ct. 57 (2010). The court determined that defendants’ nonprice agreements “were calculated to serve their shared objectives, including their primary goal of maximizing profits by preserving and expanding the market for cigarettes.” 449 F. Supp. 2d at 872.
In our present case, Dr. Leffler stated:
“By suppressing competition on health related product differentiation, defendants would directly impact the price of cigarettes. As consumers became more aware of the health risks of smoking, demand for cigarettes would be reduced and price would fall. By collusively controlling the industry reaction to the emerging literature on the health impacts of smoking and by controlling efforts to produce a safer cigarette the industry would directly impact the prices paid for cigarettes by Kansas consumers.”
Dr. Harris expressed similar views. Another expert for Plaintiffs, Dr. Aju J. Fenn opined:
“Cigarette demand with no information or misleading information about addiction will be higher than the demand for cigarettes of a fully informed consumer. Con-sumerfs] who start consuming cigarettes without the explicit knowledge that diey are addictive falsely believe that they have a choice to stop consuming the product at any time. They are unaware that their current actions are committing them to future purchases of cigarettes. If properly informed about the addictive nature of cigarettes, coupled with the information of the adverse health effects of smoking many of tírese consumers would choose not to smoke. This is clearly evident from tire drops in cigarette consumption during the years that tire Surgeon General’s warnings were issued. However, these health warnings lose their effectiveness over time given the barrage of misleading information and the constant stream of denials about the adverse health effects and addictive nature of cigarettes by the defendants.”
But the question for us is whether the existence of such a conspiracy constitutes circumstantial evidence which tends to prove to a reasonable person that the synchronous wholesale pricing of cig arettes in this oligopoly market was the product of an illegal agreement to fix prices rather than legal conscious parallelism. In other words, does evidence of the existence of this health conspiracy, which had the effect of artificially maintaining demand for tobacco products, tend to prove that Defendants entered into a separate conspiracy to fix the wholesale prices for cigarettes sold in Kansas?
There must be a rational connection between the evidence of the health conspiracy and the contention that Defendants entered into a separate price-fixing conspiracy. Plaintiffs allege the health conspiracy began in December 1953. This conspiracy apparently ended in June 2000 when the tobacco manufacturers admitted the health risks associated with smoking. Plaintiffs contend this conspiracy was effective in propping up demand for cigarettes and enhancing the profitability of the tobacco industry. In the meantime,' the price-fixing conspiracy at issue here is alleged to have begun in November 1993, after the health conspiracy had been in operation for 40 years. We find no evidence that would explain why, in the midst of an apparently successful health conspiracy, Defendants would overlay that conspiracy with a separate price-fixing conspiracy.
Further, unlike the profitable health conspiracy, tire price-fixing conspiracy the Defendants are accused of entering into was one during which cigarette prices were lower than they had been before the claimed conspiracy began. Cigarette prices ultimately increased during the claimed conspiracy at a rate lower than before. The claimed coconspirators spent far more competing with one another (over $25 billion) than the amount of the overcharge in wholesale prices ($11.9 billion) claimed in the MDL. The level of competition led RJR and B&W to sue Philip Morris for antitrust violations in the midst of the alleged conspiracy.
The tobacco manufacturers apparently hung together to the bitter end in carrying out the health conspiracy. Yet in the price-fixing conspiracy that allegedly arose after 40 years of hiding the facts about the health effects of tobacco, competition among the claimed coconspirators resulted in dramatic shifts in market share, rendering some of them winners and others' clear losers. All of this leads us to conclude that the existence of tire health conspiracy does not have a tendency in reason to prove that Defendants also engaged in the alleged price-fixing conspiracy. The health conspiracy does not constitute a plus factor.
Taken individually or collectively, the structure of the market, the meetings between tobacco company executives, the exchange of sales information, the history of past misconduct, the actions claimed to be contrary to the actors’ independent self-interest, the claimed pretextual reasons for actions, the foreign price-fixing claim, and the health conspiracy do not constitute evidence that tends to exclude the possibility that Defendants were engaged in lawful conscious parallelism in their pricing decisions. With that, we conclude the district court did not err in granting summary judgment to Defendants.
In light of this holding, we need not consider Plaintiffs’ challenge to the district court’s alternative basis for granting summary judgment in favor of Defendants PMI and BATCo based upon the lack of evidence that they sold product in Kansas. Even if we were to agree with Plaintiffs’ criticism of the district court’s ruling regarding PMI and BATCo, they would still be entitled to summary judgment on Plaintiffs’ wholesale price-fixing claim for the same reasons as the other Defendants.
Denial of Plaintiffs’ Motion to File Second Amended Petition
Plaintiffs also contend that even if we do not reverse tire summary judgment entered in Defendants’ favor, we should find error in the district court’s denial of their motion for leave to file a second amended petition.
Standard of review
We review the district court’s denial of Plaintiffs’ motion to amend their first amended petition under K.S.A. 2013 Supp. 60-215 for any abuse of judicial discretion. See Johnson v. Board of Pratt County Comm'rs, 259 Kan. 305, Syl. ¶ 14, 913 P.2d 119 (1996). We will declare the district court’s decision an abuse of discretion only if Plaintiffs demonstrate it is: (1)-arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. See Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011) (means of abuse of discretion); Harsch v. Miller, 288 Kan. 280, 293, 200 P.3d 467 (2009) (burden of proof).
Governing principles
Our Supreme Court has recognized at least five valid justifications for denying a motion to amend a pleading despite our broad notice-pleading principles discussed above. They include: (1) undue delay, (2) bad faith or dilatory motive on the part of the mov-ant, (3) repeated failure to cure deficiencies by amendments previously allowed, (4) undue prejudice to the opposing party by virtue of allowance of the amendment, and (5) futility of amendment. Johnson, 259 Kan. at 327 (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 9 L. Ed. 2d 222 [1962]). In denying Plaintiffs’ motion to amend, the district court found all of these justifications applicable except the third.
Before reviewing that decision for any abuse of discretion, some additional factual background is necessary. Plaintiffs moved to file a second amended petition on December 21, 2011 — more than 10 years after they filed their first amended petition. Their motion followed on die heels of Judge Murphy’s ruling that Plaintiffs had raised but a single claim for a wholesale price-fixing conspiracy. In support of their motion, Plaintiffs first argued below, as they do on appeal, that their motion to amend was little more than “a ‘belts and suspenders’ move” necessary only to “even more clearly define its non-price allegations” or provide “a better pleaded claim.”
If, in fact, the second amended petition did not materially alter Plaintiffs’ claim, then they can hardly claim prejudice from the court’s denial of their motion. But for the reasons discussed earlier in defining the scope of Plaintiffs’ claim for summary judgment purposes, we reject Plaintiffs’ position that this was nothing more than a clarification of claims already raised in their first amended petition. Rather, we conclude Plaintiffs’ motion to amend was an attempt to state new and different claims.
But Plaintiffs contend the district court abused its discretion by failing to provide “any reasoning at all” in support of its denial of their motion to amend. We find no support for this contention. The district court adopted the reasons advanced by Defendants in their opposition to the motion: undue delay would result, the class had shown bad faith or a dilatory motive, Defendants would be prejudiced, and the amendment would be futile.
Defendants point out drat Plaintiffs moved to file their second amended petition 12 years after the case was filed, more than 10 years after the class was certified, 6 years after discovery was closed, and less than 1 month before the hearing on Defendants’ summary judgment motions. Amending Plaintiffs’ petition to assert new causes of action would have materially altered the course of the case and its final resolution. It would have required the court to revisit the class certification issue and, at a minimum, provide new notice to members of the class regarding these new claims. For these reasons alone, we find no abuse of discretion in the district court’s ruling. Thus, we need not address the other reasons expressed by the district court.
Denial of Plaintiffs’ Motion for Default Judgment
Plaintiffs’ final issue on appeal concerns the denial of their motion for default judgment on three motions for partial summary judgment they filed. Before we can address their argument, more background is necessary.
At the same time Plaintiffs filed their joint response to Defendants’ various motions for summary judgment, Plaintiffs filed their own three motions for partial summary judgment. Defendants responded with a joint motion to defer briefing on those motions. In support, Defendants pointed out that Plaintiffs’ summary judgment motions were all based on the argument that Plaintiffs had stated something more than a price-fixing claim, and any such argument would be moot if the district court granted Defendants’ motions for summary judgment, which were based on the premise that Plaintiffs stated only a price-fixing claim. Plaintiffs responded with a motion for default judgment, arguing that Defendants had not properly responded to Plaintiffs’ summary judgment motions.
Following a hearing in October 2011, the district court denied Plaintiffs’ motion for default and granted Defendants’ motion to defer briefing on Plaintiffs’ summary judgment motions. While the district court agreed with Plaintiffs’ position that the Defendants’ motion to defer did not necessarily fall within the parameters of a response to a motion for summaiy judgment anticipated under K.S.A. 2013 Supp. 60-256(f), the district judge found:
“I think in this case and in these circumstances, where continuances have been granted to all of the parties over this 10,12-year period, I’m not going to find that default judgment is appropriate. I think that the motion to defer served as a response,.maybe not albeit perfect, but I think it is a response that takes it out of the default arena.”
Plaintiffs contend here that this was error. Defendants respond that the court was well within its discretion to deny the motion for default judgment.
Standard of review
We review the district court’s decision on a motion for default judgment for an abuse of discretion. See Bazine State Bank v. Pawnee Prod. Serv., Inc., 245 Kan. 490, Syl. ¶ 1, 781 P.2d 1077 (1989), cert. denied 495 U.S. 932 (1990); Lara v. Vasquez, 33 Kan. App. 2d 128, 130-31, 98 P.3d 660 (2004), rev. denied 279 Kan. 1006 (2005).
Plaintiffs contend the district court abused its discretion because the denial of their motion for a default judgment was premised on an error of law. They argue that “there is no such thing as a motion to defer”; and, if Defendants’ motion was meant to be a motion to continue, their response had to be accompanied by the statutorily required K.S.A. 2013 Supp. 60-256(f) affidavit.
Defendants initially respond that the class’ argument is based on two faulty premises: (1) that Plaintiffs’ motions for summary judgment were procedurally proper in the first place; and (2) that Defendants failed to respond.
Defendants further point out that even if they failed to respond, the summary judgment sought by the class for $7.58 billion was inappropriate in this case. We agree. Given our holding that Plaintiffs’ lawsuit was not based on die “non-price” claims that underlie their motions for summary judgment, default partial summaiy judgments on those claims would not have been appropriate. See K.S.A. 2013 Supp. 60-256(e)(2) (when opposing party fails to respond to motion for summary judgment, summary judgment should, if appropriate, be entered against that party).
Motions for default judgment are not favored in the law. Bazine State Bank, 245 Kan. at 495. We find no abuse of discretion in the district court’s denial of Plaintiffs’ motion for a default judgment on their motions for partial summary judgment. Further, given our decision upholding summary judgment for Defendants, these motions are now moot.
We need not consider Defendants’ contingent cross-appeals from the class certification order and the order compelling the production of documents because these issues are now moot.
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Leben, J.:
When Rakestraw Brothers, LLC, wanted to appeal the tax valuation of its oil lease by Kingman County, it hired Kenton Hupp, a petroleum engineer, to handle the appeal. Hupp filed a notice of appeal on Rakestraw Brothers’ behalf with the small-claims division of the Court of Tax Appeals.
The Court of Tax Appeals dismissed the appeal for lack of jurisdiction, concluding that the notice of appeal had to be signed either by a member or officer of Rakestraw Brothers or by a licensed attorney. But the Kansas Legislature has specifically provided that “[a] party . . . may be represented by a . . . tax representative or agent” in the small-claims division. K.S.A. 2011 Supp. 74-2433f(f). We therefore conclude that the Court of Tax Appeals was wrong to dismiss the appeal for lack of jurisdiction, and we remand for a hearing on the merits of the appeal.
Factual and Procedural Background
Rakestraw Brothers hired Hupp to handle the appeal of King-man County’s valuation of its oil lease for the 2011 tax year. Hupp is a licensed petroleum engineer who does consulting work, including work related to the valuation of oil leases. Aside from consulting with Rakestraw Brothers about the valuation of its oil lease, he was not employed by Rakestraw Brothers.
Hupp signed a notice of appeal on a form provided by the Court of Tax Appeals. He signed as the taxpayer’s representative and attached a “Declaration of Representative,” stating that he would serve as Rakestraw Brothers’ representative during the appeal. Hupp paid the $150 filing fee and sent a letter to the small-claims division indicating that he was representing Rakestraw Brothers in the appeal.
The small-claims division conducted a hearing on the appeal, and it upheld Kingman County’s valuation.
An attorney, Bradley Stout, then filed an appeal of the small-claims ruling to the regular division of the Court of Tax Appeals. But Kingman County filed a motion to dismiss the case for lack of jurisdiction based on a recent Court of Tax Appeals ruling in a similar case. The Court of Tax Appeals granted the motion, concluding that only a taxpayer or its attorney may sign a notice of appeal. Since Hupp was neither an attorney nor the taxpayer (as a member or even an employee), the Court of Tax Appeals ruled that the notice of appeal had to be disregarded. As a result, it concluded, no timely appeal had been filed in the small-claims division, and it had no subject-matter jurisdiction to hear the appeal.
Rakestraw Brothers filed a motion to reconsider, but the Court of Tax Appeals denied that motion. Rakestraw Brothers then appealed to this court.
Before analyzing whether the Court of Tax Appeals was wrong in its legal conclusion, we add a note regarding the statutes and regulations cited in this opinion. We are citing to the 2011 statutes and regulations that were in place when Rakestraw Brothers filed its appeal to the small-claims division in March 2012. Those statutes and regulations were the ones that determined jurisdiction at that time, and the Court of Tax Appeals relied upon them in its decision.
We recognize that the 2014 Kansas Legislature has made changes to the statutes governing the Court of Tax Appeals. In fact, even the name of that tribunal has been changed — -reverting back to its former name, the Board of Tax Appeals. See L. 2014, ch. 141. Neither party has filed anything with our court suggesting that these legislative changes should have any impact on whether the Court of Tax Appeals was correct to dismiss Rakestraw Brothers’ appeal. We have not considered those legislative changes and accordingly express no opinion on what impact, if any, they may have on remand.
Analysis
In our view, the result in this case is driven by the language of K.S.A. 2011 Supp. 74-2433f, in which the Kansas Legislature provided for expedited hearings in designated cases through a small-claims division of the Court of Tax Appeals. Kingman County makes no argument that Rakestraw Brothers’ appeal was in any way inappropriate for small-claims treatment. See K.S.A. 2011 Supp. 74-2433f(c).
For a small-claims appeal, the legislature provided in K.S.A. 2011 Supp. 74-2433f that the appeal begins with the filing of a notice of appeal and that the taxpayer may appear through any of several parties, including an attorney, a certified public accountant or appraiser, or a tax representative or agent:
“(e) A taxpayer shall commence a proceeding in the small claims and expedited hearings division by filing a notice of appeal in the form prescribed by the rules of the state court of tax appeals which shall state the nature of the taxpayer’s claim.
“(f) The hearing in the small claims and expedited hearings division shall be informal. The hearing officer may hear any testimony and receive any evidence the hearing officer deems necessary or desirable for a just determination of the case. A hearing officer shall have the authority to administer oaths in all matters before the hearing officer. All testimony shall be given under oath. A party may appear personally or may be represented by an attorney, a certified public accountant, a certified general appraiser, a tax representative or agent, a member of th& taxpayers immediate family or an authorized employee of the taxpayer. A county or unified government may be represented by the county appraiser, des-ignee ©f the county appraiser, county attorney or counselor or other representatives sq designated. No transcript of the proceedings shall be kept.” (Emphasis added.) K.S.A. 2011 Supp. 74-2433f.
Thus, in a section specifically governing the small-claims division, the legislature has said that a taxpayer “may be represented by . . . a tax representative or agent.”
Kingman County suggests in its brief that there’s no proof in the record that Hupp, a petroleum engineer, was a tax representative or agent. But the Court of Tax Appeals didn’t question whether Hupp was a tax representative — a managing partner of Rakestraw Brothers had signed the Court of Tax Appeals form for “Declaration of Representative” stating that Hupp was its representative, and Hupp had said in a letter submitted with the appeal notice that he was a licensed petroleum engineer with “28 years of Kansas Ad Valorem Tax preparation experience,” including testimony before counties and the Court of Tax Appeals. Hupp was Rakestraw Brothers’ “tax representative or agent” for purposes of K.S.A. 2011 Supp. 74-2433f.
So we have an action properly filed in the small-claims division by the tax representative or agent of the taxpayer, and the legislature has specifically authorized such a person to appear for the taxpayer in the small-claims division. What, then, could be the problem?
Based on the Court of Tax Appeals’ ruling, Kingman County suggests four reasons that the notice of appeal Hupp filed wasn’t valid and thus didn’t give the Court of Tax Appeals jurisdiction over die appeal. First, Kingman County argues that since K.S.A. 2011 Supp. 79-2005(g) provides that “the protesting taxpayer may, if aggrieved . . . , appeal” a county’s tax assessment, only the taxpayer (or its attorney) may file the notice of appeal. Second, King-man County argues that a Court of Tax Appeals regulation, K.A.R. 94-5-4(b) (2011 Supp.), provides that a notice of appeal be “signed by the party or the party’s attorney,” leaving no option to use a non-attorney agent. Third, Kingman County argues that K.S.A. 2011 Supp. 74-2433f(f) applies only to hearings, not to the filing of the notice of a taxpayer’s appeal. Fourth, Kingman County argues that signing the notice of appeal to the small-claims division would constitute the unauthorized practice of law if done by a representative who was not licensed to practice law in Kansas. Based on our understanding of K.S.A. 2011 Supp. 74-2433f, we do not find any of these arguments persuasive.
Let’s begin with K.S.A. 2011 Supp. 79-2005(g). That statute does provide that an aggrieved “taxpayer” can appeal, and K.S.A. 2011 Supp. 79-2433f(e) provides that “[a] taxpayer” may commence a small-claims appeal. But neither statute provides that only the taxpayer can file the appeal form. Kingman County and the Court of Tax Appeals agree that an attorney could file the appeal on behalf of Rakestraw Brothers. These statutes don’t explicitly address who may prepare a taxpayer’s appeal form and should not be read to prohibit anyone but the taxpayer from preparing or filing the notice of appeal. Hupp did not purport to file his own appeal — he signed as Rakestraw Brothers’ representative.
Kingman County next cites to K.A.R. 94-5-4(b) (2011 Supp.), which provides that notices of appeal be “signed by the party or the party’s attorney.” But that regulation cannot deprive the Court of Tax Appeals of jurisdiction to hear an appeal: An administrative agency does not define its own jurisdiction — the legislature does by statute.
Administrative agencies are created by statute, so they have only the powers granted by statute. See Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, Syl. ¶ 1, 228 P.3d 403 (2008). Agency rules must be within the agency’s statutory authority, Ruddick v. Boeing Co., 263 Kan. 494, 499, 949 P.2d 1132 (1997), so an agency may create a jurisdictional requirement only if the legislature has specifically authorized it to do so. See Chelf v. State, 46 Kan. App. 2d 522, 525-33, 263 P.3d 852 (2011). Mere authority to adopt rules does not authorize the agency to adopt jurisdictional rules; there must be express statutory language that the agency has the authority to set jurisdictional limits. See Union Pacific R. Co. v. Locomotive Engineers, 558 U.S. 67, 83-84, 130 S. Ct. 584, 175 L. Ed. 2d 428 (2009); Hernandez v. Holder, 738 F.3d 1099, 1102 (9th Cir. 2013); Hoogerheide v. I.R.S., 637 F.3d 634, 636-37 (6th Cir. 2011); Chelf, 46 Kan. App. 2d at 532-33.
K.A.R. 94-5-4(b) (2011 Supp.) was adopted under the authority of K.S.A. 2011 Supp. 74-2437, which lets the Court of Tax Appeals adopt rules “relating to the performance of its duties and particularly with reference to procedure before it on hearings and appeals.” K.S.A. 2011 Supp. 74-2437(c). Nothing in that statutory grant of authority suggests that the Court of Tax Appeals'may adopt regulations that limit its jurisdiction.
K.S.A. 2011 Supp. 74-2433f(e) does provide that taxpayers begin their small-claims appeal “by filing a notice of appeal in the form prescribed by the rules of the state court of tax appeals . . . .” But nothing in that statute clearly expresses a legislative authorization that the Court of Tax Appeals rules for the form of the notice shall be jurisdictional.
The upshot is that the Court of Tax Appeals had no authority to adopt a regulation purporting to deprive it of jurisdiction if an appeal form was unsigned or signed by the wrong party.
That result should not be surprising. Even courts within the judicial branch don’t define their own jurisdiction, so court rules do not create jurisdictional requirements. See Adams v. St. Francis Regional Med. Center, 264 Kan. 144, 151, 955 P.2d 1169 (1998). And even the outright failure to sign a paper filed in court-- — even including a notice of appeal — doesn’t deprive a court of jurisdiction. Instead, Rule 11 of the Federal Rules of Civil Procedure and its Kansas counterpart, K.S.A. 2011 Supp. 60-211, both provide for striking an unsigned paper only if the failure to sign it is not corrected after being brought to the party’s attention. See Fed. R. Civ. P. 11(a); K.S.A. 2011 Supp. 60-211(a). Thus, the United States Supreme Court has held that the failure to sign a notice of appeal does not deprive a federal court of jurisdiction over that appeal. Becker v. Montgomery, 532 U.S. 757, 760, 763-68, 121 S. Ct. 1801, 149 L. Ed. 2d 983 (2001).
Kingman County’s next argument is a claim that K.S.A. 2011 Supp. 74-2433f(f), which authorizes an appearance by a “tax representative or agent,” only applies at the small-claims hearing and not to the filing of the appeal notice. Kingman County contends that the filing of the appeal is governed solely by K.S.A. 2011 Supp. 74-2433f(e), which makes no reference to a “tax representative or agent.”
There are several problems with this argument.
First, K.S.A. 2011 Supp. 74-2433f(e) is ambiguous about who may file the appeal. It references only “[a] taxpayer,” yet everyone agrees that the parties who may prepare and file the appeal form include at least attorneys in addition to the taxpayer. Given that ambiguity, it makes sense to consider subsection (e) along with subsection (f), which clearly allows a “tax representative or agent,” among others, to appear for the taxpayer at the hearing. See Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106, cert. denied 134 S. Ct. 162 (2013). An attorney is, after all, simply one type of agent, so it makes sense to use the list of permissible agents provided by the legislature in subsection (f) when determining which agents may file the notice of appeal on the taxpayer’s behalf. By contrast, it would make no sense to say that a corporation must hire an attorney for the sole purpose of signing the appeal form but then may be represented by a non-attorney at the small-claims hearing. Construing the statute in that manner would defeat the obvious purpose of the small-claims process — to allow for a less cumbersome, more informal, and less expensive initial appeal. None of these considerations support Kingman County’s argument.
Second, Kingman County relies upon K.A.R. 94-5-4(b) (2011 Supp.) for the requirement that only the taxpayer or its attorney may sign the appeal form. That regulation is ultimately the source of the claimed requirement that only an attorney or the taxpayer may sign tire appeal form since K.S.A. 2011 Supp. 74-2433f(e) doesn’t mention attorneys. But we have already explained that the Court of Tax Appeals has no authority to use this regulation to define its jurisdiction.
Third, K.A.R. 94-5-4(b) (2011 Supp.) by its own terms does not set forth a jurisdictional requirement. Immediately after tire sentence that requires the form to be “signed by the party or the party’s attorney,” the regulation goes on to say that “[i]f a pleading is filed with insufficient information or is otherwise deficient, the pleading may be rejected by the court or may be accepted by the court, with supplementation by the parties required by the court.” (Emphasis added.) A provision giving the body discretion whether to accept a form drat is deficient in some way is not a jurisdictional provision. And to the extent the Court of Tax Appeals had discretion in this case, we hold it was an abuse of discretion to dismiss the appeal without first giving Rakestraw Brothers an attempt to correct die error, just as a court in the judicial branch would be required to do. See K.S.A. 2011 Supp. 60-211(a).
Kingman County suggests a final problem — that filling out or signing the notice of appeal constitutes practicing law, which only an attorney may do. There are two answers to this argument. First, filling out tire appeal notice did not constitute the practice of law. Second, even if it were the practice of law, that would not present a jurisdictional hurdle for tire reason we just noted: Even in a court, the party would be given another opportunity to have the paper properly signed before it would be stricken. There’s certainly no reason that a stricter rule should be applied in an administrative proceeding unless tire legislature has created one — and here, the legislature has provided that the hearing in the small-claims division “shall be informal.” K.S.A. 2011 Supp. 74-2433f(f). There’s no statutory hint that a taxpayer should be thrown out over some technical pleading requirement.
Let’s first consider whether filling out the appeal form provided by the Court of Tax Appeals constitutes the practice of law. There is nothing in the form that requires legal training: The taxpayer advises that it wants a hearing, provides contact information, and states what it claims the proper value of the property is. Law school doesn’t train students to appraise real property, let alone oil and gas interests. Nor does law school teach a person how to sign his or her name, also required on the form.
The Colorado Court of Appeals found that filling out a similar tax-appeal form did not constitute the practice of law in BQP Industries v. State Bd. of Equalization, 694 P.2d 337, 341-42 (Colo. App. 1984). In that case, the non-attorney presidents of 10 corporations had filed appeal forms to a state tax-appeal agency using an agency form that asked for several items of information. In fact, it asked for more than the Court of Tax Appeals form in our case did; the Colorado form asked for the facts and law on which the appeal was based and a list of witnesses and exhibits. The Colorado court found that filling out the form did not constitute the unauthorized practice of law: “The completion of this form does not require any knowledge and skill beyond that possessed by the ordinary, intelligent taxpayer.” 694 P.2d at 342. Filling out the Kansas appeal form did not constitute the practice of law.
Our conclusion that Hupp did not practice law by filing the small-claims appeal form is underscored by the nature of administrative proceedings, in which non-attorneys often handle even some complicated proceedings. Administrative agencies are created by statute, not by the common law, so there’s no common-law prohibition on a corporation or other artificial entity appearing through a non-attorney. In some complicated administrative-agency proceedings, like patent registrations, for example, non-attorneys may become registered agents to represent other parties. See 37 C.F.R. §§ 11.6(b), 11.7 (2013). The Kansas Administrative Procedure Act provides that parties may participate in hearings “in person or, if the party is a corporation or other artificial person, by a duly authorized representative.” K.S.A. 77-515(a). Had the legislature wanted to limit the ability to represent artificial entities in administrative proceedings only to attorneys, it could have done so by substituting “attorney” for “representative.”
But what if merely filling out the notice of appeal form were considered practicing law? Even then, the Court of Tax Appeals would not be barred from considering the appeal. To understand why, let’s consider what happens when a notice of appeal is filed in a court, where the rules against non-lawyers acting on behalf of corporate entities are stricter.
There is a common-law rule under which corporations and other artificial entities must be represented by an attorney in court. See In re Arnold, 274 Kan. 761, 770, 56 P.3d 259 (2002); cf. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, Syl. ¶¶ 3-4, 14 P.3d 1149 (2000) (recognizing that legislature had changed tire common-law rule by statute to allow corporations to appear in court in small-claims cases by a full-time employee or officer). But even if Hupp, a non-attorney, had filed the notice of appeal in a court, that doesn’t mean the notice of appeal would be treated as a nullity and disregarded altogether. Instead, many courts now take the position that the pleading filed by a non-attorney should not be deemed a nullity (in an appeal, depriving the court of jurisdiction because a proper appeal wasn’t timely filed) unless the party knew that its action was improper. See In re IFC Credit Corp., 663 F.3d 315, 320-21 (7th Gir. 2011) (concluding that there was no jurisdictional defect when corporation’s president, rather than attorney, signed the initial pleading); Downtown Disposal Serv. v. City of Chicago, 2012 IL. 112040, ¶¶ 17-38, 979 N.E.2d 50 (2012) (same).
That’s the approach the Kansas Supreme Court took in Benson v. City of DeSoto, 212 Kan. 415, 422, 510 P.2d 1281 (1973). In that case, the trial court had dismissed a city’s appeal because it had been signed by three city council members who were not attorneys. The court found that the dismissal was “overly technical” and concluded that the filing should not be declared a nullity. 212 Kan. at 421-22. Kansas law is thus in agreement with the other courts cited above that have concluded that a filing made by a non-attorney should not be considered a nullity for jurisdictional purposes in a court proceeding.
Here, though, the filing by non-attorney Hupp came in an administrative-agency proceeding, not a court proceeding. Despite its name when it ruled in this case, the Court of Tax Appeals was an administrative agency in the Executive Branch. See In re Protests of Oakhill Land Co., 46 Kan. App. 2d 1105, 1113-14, 269 P.3d 876 (2012). Surely if an appeal in court would not be thrown out solely because a non-lawyer signed the notice of appeal, an appeal before an administrative agency, where less formal rules apply, should not be, either.
We recognize that K.S.A. 77-515(c) provides that a state agency “may require a corporation or other artificial person to participate by counsel.” But that is a general provision broadly applicable through the Kansas Administrative Procedure Act, while K.S.A. 2011 Supp. 74-2433f is a specific statute governing small-claims appeals in tire Court of Tax Appeals. In the event of a conflict between a general statute and a more specific one, the specific statute controls. See In re Adoption of H.C.H., 297 Kan. 819, 833, 304 P.3d 1271 (2013). A fair reading of K.S.A. 2011 Supp. 74-2433f(e) and (f), taken together, is that certified public accountants and other tax representatives or agents may both file the notice of appeal and appear for the taxpayer at the small-claims hearing. The general statutory authority in K.S.A. 77-515(c) cannot override that legislative directive.
We conclude there was nothing improper about Hupp’s filing. When the legislature provides that “[a] party may appear personally or may be represented by an attorney [or by] ... a tax representative or agent,” K.S.A. 2011 Supp. 74-2433f(f), it surely has not excluded non-attorneys from representing taxpayers in the small-claims division. The decision of the Court of Tax Appeals dismissing the appeal of Ralcestraw Brothers is reversed, and the case is remanded for a hearing on the merits of that appeal. | [
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Standridge, J.:
After leaving an incident at a casino, William Hoeffner, Jr., was arrested for driving under the influence. The arresting officers read him the required implied consent advisory before requesting he submit to a breath test. He refused to do so until the officers repeatedly indicated that they would obtain a search warrant for a blood test; then, he agreed to the breath test, which he failed. Although Hoeffner argued the officers unlawfully coerced him into submitting to a breath test by threatening to obtain a search warrant, his driving privileges were suspended. His suspension was affirmed after an administrative hearing. Hoeffner appealed the suspension to the district court, again claiming unlawful coercion and also that the hearing officer used an improper form, which rendered his suspension a nullity. The district court upheld the suspension.
Hoeffner appeals to us raising the same issues. We find no merit to Hoeffner’s claim that the proceedings before the hearing officer were rendered a nullity based on language in the form. But we agree with Hoeffner that the officers did not have legal grounds upon which to obtain a search warrant to draw Hoeffner’s blood at the time the officers repeatedly advised Hoeffner that they intended to do so. The officers’ misinformation transformed the breath test Hoeffner previously had refused to take into an involuntary search because it necessarily deprived Hoeffner of the opportunity to revoke his statutorily implied consent. Although the results of Hoeffner’s failed breath test are the fruits of an unlawful seizure, our Supreme Court has long held that the exclusionary rule does not apply to suppress incriminating evidence in administrative driver’s license suspension cases. Accordingly, we find substantial competent evidence to support the district court’s finding that Hoeffner had an alcohol concentration of .08 or greater in his blood and, in turn, affirm the court’s decision to uphold the agency’s suspension of Hoeffner’s license.
Facts
In late June 2011, Officer Daniel Hadovanic of the Dodge City Police Department responded to a call regarding a disorderly man at a casino. Dispatch stated that the man and a younger companion left the casino in a convertible. Officer Joan Addison offered to serve as Hadovanic’s backup for the call and encountered the car first. After the car sat at a green light without immediately going forward, Addison initiated a traffic stop. Hoeffner was the driver.
Despite the fact that the car was a convertible, Addison noticed the odor of alcohol when she approached the car. Addison also noticed Hoeffner was very talkative, “hyped up,” and that his eyes were watering — the “perfect demonstration of something you would teach a beginner ... to look for in an impaired driver.” When Hadovanic arrived on the scene, he also noticed the odor of alcohol and Hoeffner s bloodshot eyes. Hoeffner struggled to get out of the car when requested, and he admitted to Hadovanic that he had been drinking beer prior to tire traffic stop.
Hadovanic administered field sobriety tests to Hoeffner, which he failed. Hoeffner refused a preliminary breath test, after which officers arrested him and transported him to the county jail. There, they read Hoeffner the applicable implied consent advisory and provided him a written copy, but when they requested Hoeffner to submit to a breath test, he refused. Hoeffner asked Hadovanic whether he should submit to the test, but Hadovanic replied that he could not give Hoeffner advice about whether to take it. During this time, one or both of the officers informed Hoeffner that if he did not submit to the breath test, they would obtain a search warrant for a blood test. In fact, at the time of Hoeffner s arrest, Dodge City police officers routinely attempted to obtain search warrants for blood tests after drivers refused to consent to a request for breath test. After a while, Hoeffner announced that if the officers were going to get a sample one way or another, he might as well submit to the breath test. When he again showed hesitation, the officers repeated that they intended to obtain a search warrant if Hoeffner failed to submit to and complete the test. Hoeffner ultimately acquiesced to the breath test, the results of which showed a blood-alcohol content of .215, nearly three times the legal limit.
Because he failed the test, Hoeffner s driving privileges were suspended. Hoeffner subsequently requested a hearing with the Kansas Department of Revenue (KDOR). Although originally scheduled for December 2011, the hearing was delayed until June 2012, over a year.after Hoeffner failed the test. By this time, certain provisions of the1 Kansas implied consent law had changed, and the KDOR had revised its hearing form to conform to those changes.
Hoeffner claimed at the administrative hearing that the officers’ statements about obtaining a search warrant if he continued to refuse testing was coercion that rendered his consent involuntary. The hearing officer apparently took the matter under advisement because Hoeffner later submitted a brief in support of his position. In the end, however, the hearing officer determined that Hadov- anic “was merely stating protocol when he told [Hoeffner] blood would be drawn upon refusal.” The hearing officer affirmed Hoeff-ner’s suspension.
Hoeffner then appealed the KDOR’s decision to the Ford County District Court. Although Hoeffner raised approximately six issues before the district court, only two are relevant to this appeal: whether the KDOR erred by using the revised hearing form and whether the officers’ statements regarding tire potential search warrant constituted coercion. After hearing testimony and argument, the district court determined that the revised form did not change the penalty that applied to Hoeffner and that the officers provided Hoeffner with tire correct implied consent notices at the time of his arrest. As such, any error by the KDOR in using the wrong form was harmless. With regard to the coercion issue, the district court determined that because the statements made by the officers regarding their ability to obtain a search warrant were true, the statements did not constitute coercion. The district court affirmed the suspension.
Analysis
The revised hearing form
Hoeffner’s first argument involves the hearing order form, which reflected changes in the law effective after his breath test. Hoeffner contends that using this form is such an egregious error that it renders the hearing’s outcome a nullity. We disagree.
When reviewing the district court’s ruling in a driver’s license suspension case, this court generally employs a substantial competent evidence standard of review. Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820, 822, 74 P.3d 588 (2003). However, when the issues raise only questions of law — such as the interpretation of a statute — this court exercises unlimited review. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 629, 176 P.3d 938 (2008).
Hoeffner concedes that the implied consent notices provided to him on the night of his breath test complied with the law at the time. Hoeffner also concedes that he suffered no prejudice, as he received the penalty in effect in June 2010. The crux of Hoeffner’s contention, then, is that the KDOR is required to strictly comply with the law such that any irregularity in its own internal processes, such as using the wrong form, irreparably taints the proceedings.
However, this assertion is unsupported by Kansas law. “[I]t is generally recognized that substantial compliance with statutory notice provisions will usually be sufficient” when advising a driver of his or her rights under the Kansas implied consent law, provided that the notice in question “conveyed the essentials of the statute and did not mislead the appellant.” Barnhart v. Kansas Dept. of Revenue, 243 Kan. 209, 213, 755 P.2d 1337 (1988). This rule stems from the fact that the implied consent statute is a remedial statute, and such statutes are “to be liberally construed to effectuate the purpose for which [they were] enacted.” Smith v. Marshall, 225 Kan. 70, Syl. ¶ 1, 587 P.2d 320 (1978); see also K.S.A. 2010 Supp. 8-1001(v) (establishing that implied consent statute is a remedial law). When, for example, an arresting officer read a driver an out-of-date implied consent advisory that warned her of significantly different penalties than those in effect at the time, our Supreme Court held the officer failed to substantially comply with the implied consent law. Meigs v. Kansas Dept. of Revenue, 251 Kan. 677, 681, 840 P.2d 448 (1992).
Obviously, these cases are factually distinguishable from the instant case as they discuss only the initial implied consent notices required by statute, not the hearing form used by the KDOR. However, the situations are analogous. Hoeffner was read the notices in effect at the time of his arrest and received the penalty applicable in June 2011. Hoeffner never even saw the form memorializing these facts until after the hearing. Nothing in the record suggests that the outcome of the hearing changed due to this technical irregularity, and, As previously stated, Hoeffner admits he suffered no prejudice.
To further analogize from other areas of the law, our Kansas Code of Criminal Procedure states that “[clerical mistakes in judgments, orders or other parts of the record .. . arising from oversight or omission may be corrected by the court at any time.” K.S.A. 22-3504(2). The Kansas Rules of Civil Procedure allow a court to “correct a clerical mistake or a mistake arising from oversight or omission whenever one is found in a judgment.” K.S.A. 2013 Supp. 60-260(a). It is clear that these statutes allow our Kansas courts to correct minor mistakes and oversights without the need for further proceedings. As it appears that the use of the wrong form was likely nothing more than oversight by the hearing officer, Hoeffner’s argument that it renders the hearing officer’s judgment a nullity is disingenuous in light of these other statutes. Hoeffner is, at most, entitled to a corrected or amended hearing order form, not a complete reversal of his suspension.
The KDOR substantially complied with the law in effect at the time of Hoeffner’s breath test, and Hoeffner suffered no prejudice due to this technical irregularity. As such, we decline to vacate his suspension for this reason.
Coercion
The extraction of a blood sample implicates constitutional guarantees against unreasonable searches and seizures under the Fourth and Fourteenth Amendments to the United State Constitution. Schmerber v. California, 384 U.S. 757, 767, 86 S. Ct. 1826, 16 L. Ed. 2d 908 (1966); State v. Murry, 271 Kan. 223, 226, 21 P.3d 528 (2001). A search without a warrant is unreasonable unless it falls within one of several limited, well-defined exceptions to the warrant requirement, one of those exceptions being consent. State v. Thompson, 284 Kan. 763, Syl. ¶ 11, 166 P.3d 1015 (2007). In Thompson, our Supreme Court stated that for consent to be valid “(1) there must be clear and positive testimony that consent was unequivocal, specific; and freely given and (2) the consent must have been given without duress or coercion, express or implied.” 284 Kan. 763, Syl. ¶ 12.
Hoeffner claims his consent was not freely given but instead was coerced as a direct result of the officers’ repeated words of warning that if Hoeffner would not submit to a breath test, the officers would apply for and obtain a search warrant to obtain a blood test. When consent to testing occurs in the wake of a threat to obtain a search warrant for such testing, like here, we will construe the threat as unlawful coercion that invalidates consent when “there were not then grounds upon which a warrant could issue.” State v. Brown, 245 Kan. 604, 612, 783 P.2d 1278 (1989). Conversely, when an officer says that a warrant can be obtained and “in fact, there are grounds for the issuance of a warrant, the statement is correct and does not constitute coercion.” 245 Kan. at 612-13. The threat is acceptable under these circumstances because it “ ‘does not involve any deceit or trickery, but instead accurately informs the individual of his precise legal situation.’ ” 245 Kan. at 608 (quoting 2 La Fave, Search and Seizure § 8.2, pp. 648-49 [1978]).
Thus, in order to resolve Hoeffner’s claim that his consent was unlawfully coerced, we necessarily must decide whether the officers lawfully could have obtained a search warrant to involuntarily extract blood from Hoeffner for purposes of alcohol testing. And because drawing a sample of blood from a person suspected of driving under the influence is governed by statute in Kansas, our decision is necessarily a matter of statutory interpretation, which is a legal issue appellate courts determine independently without any required deference to the district court. See 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 or should not be. Courts may not speculate as to legislative intent and may not read the 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 die 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).
A compelled blood draw after a refusal to consent to such testing is governed by the provisions of K.S.A. 2010 Supp. 8-1001, which provided in relevant part:
“(d) A law enforcement officer may direct a medical professional described in this section to draw a sample of blood from a person:
(1) If the person has given consent and meets tire requirements of subsection (b);
(2) if medically unable to consent, if the person meets tire requirements of paragraph (2) of subsection (b); or
(3) if the person refuses to submit to and complete a test, if the person meets the requirements of paragraph (2) of subsection (b).”
Because this provision summarily cross-references subsection (b) of the statute, we have inserted the cross-referenced language where appropriate and have designated the cross-referenced language by placing it in brackets:
“(d) A law enforcement officer may direct a medical professional described in this section to draw a sample of blood from a person:
(1) If the person has given consent and
[(1) If the officer has reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence . . . and one of the following conditions exists:
(A) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a vehicle while under the influence . . or
(B) the person has been involved in a vehicle accident or collision resulting in property damage or personal injury other than serious injury; or
(2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense . . . .]; or
(3) if the person refuses to submit to and complete a test, [the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and tire operator could be cited for any traffic offense . . . .]
(2) if medically unable to consent,
[(2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense or
(3) if the person refuses to submit to and complete a test
[(2) if the person was operating or attempting to operate a vehicle and such vehicle has been involved in an accident or collision resulting in serious injury or death of any person and the operator could be cited for any traffic offense
Looking at the facts as they existed at the time the threat to obtain a search warrant was made, the officer’s ability to draw blood was governed by K.S.A. 2010 Supp. 8-1001(d)(3) because Hoeffner already had refused to submit to and complete a test. Under the governing statute, then, the officer was permitted to direct a medical professional to draw a sample of blood from Hoeffner only if he (1) was operating or attempting to operate a vehicle, (2) the vehicle had been involved in an accident or collision resulting in serious injury or death of any person, and (3) he could be cited for any traffic offense. But Hoeffner s vehicle had not been involved in an accident, let alone an accident resulting in serious injury or death of a person. Thus, in the wake of Hoeffner s refusal to consent to the request for testing, the officer was not permitted to direct a medical professional to draw a sample of blood from Hoeffner. See State v. Weilert, 43 Kan. App. 2d 403, 410, 225 P.3d 767 (2010) (applying K.S.A. 8-1001[d][3], court held that in the absence of evidence driver of vehicle was in an accident involving serious injury or death, officers may not facilitate the forced withdrawal of a sample of blood from the driver for purposes of a criminal proceeding); Cook v. Olathe Medical Center, Inc., 773 F. Supp. 2d 990, 1002 (D. Kan. 2011) (same).
Although our conclusion today is supported by the plain and unambiguous language of K.S.A. 2010 Supp. 8-1001(d)(3), another panel of our court recently held the statute does not apply in those instances when the officer has probable cause to obtain a search warrant after a refusal. City of Dodge City v. Webb, 50 Kan. App. 2d 393, 402, 329 P.3d 515 (2014), petition for rev. filed July 9, 2014. The panel acknowledged that the statute expressly prohibits the officer from directing a medical professional to draw blood, yet went on to conclude that the statute was inapplicable as a matter of law when the officer obtains a search warrant supported by probable cause. In support of this legal conclusion, the panel found that when an officer is executing a search warrant it is the judge directing the medical professional to draw blood and not the officer. See 50 Kan. App. 2d at 403. But the panel’s conclusion is not supported by the plain language of the statute. Whether accomplished in the course of executing a warrant signed by a magistrate upon probable cause or without a warrant at all, at the end of the day it is still a law enforcement officer on the scene who directs the medical professional to draw the blood, an act expressly prohibited by the language of K.S.A. 2010 Supp. 8-1001(d)(3).
By construing the statutory language to create a search warrant exception to the ban on nonconsensual blood-alcohol testing after a refusal, the Webb panel not only moved beyond the plain and unambiguous language of the statute in a manner contrary to clear legislative intent, but it also rejected well-settled Kansas law on the issue. In State v. Adee, 241 Kan. 825, 829-30, 740 P.2d 611 (1987), the Kansas Supreme Court was called on to decide whether a new provision within the implied consent statute created an exception to the long-standing ban against seeking a search warrant for blood samples from persons refusing to consent to testing. Added as subsection (g) of the statute, this new provision stated: “Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.” K.S.A. 1986 Supp. 8-1001(g). Relying on legislative history, the Adee court determined that subsection (g) was not intended to create a search warrant exception to the existing statutory provision that prohibited blood-alcohol testing after a refusal:
“We believe that the intention of subsection (g) as enacted was not to change existing law as to the prohibition against the issuance of search warrants for DUI suspects refusing alcohol concentration testing, but rather to clarify that nothing in the implied consent statute (K.S.A. 1986 Supp. 8-1001) rendered alcohol concentration test results from search warrants issued under some other authority inadmissible in DUI trials. Conceivably, a search warrant for a blood sample could be issued for a suspect of some crime other than DUI. If so, and the results were relevant to a DUI charge against the same individual, then (g) states that nothing in the implied consent statute (K.S.A. 1986 Supp. 8-1001) renders such results inadmissible in the DUI trial.” Adee, 241 Kan. at 832.
Citing Adee as controlling precedent, the panel in Webb agreed that the pre-2008 version of the implied consent statute prohibited an officer from obtaining a search warrant to compel a blood sample after a defendant refused testing. Nevertheless, the panel ultimately concluded that both the legal analysis and the holding in Adee were no longer controlling because the Kansas Legislature eliminated subsection (h) of the implied consent statute — the lan guage prohibiting additional testing after a refusal — in its 2008 revisions:
“[I]n 2008, the Kansas Legislature revised the implied consent statute further and eliminated subsection (h) entirely, changing the calculus in our view.. .. Because the Kansas Legislature took out the language prohibiting additional testing after a refusal, . . . the statute now allows for additional testing after a refusal.” Webb, 50 Kan. App. 2d at 402.
The panel claimed that its conclusion in this regard was “bolstered by the language in K.S.A. 2011 Supp. 8-1001(t), which states: ‘Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.’ ” 50 Kan. App. 2d at 402.
We disagree with the conclusion reached by the panel in Webb. First, the Kansas Legislature did not eliminate — but merely repositioned — the language prohibiting additional testing after a refusal in its 2008 revisions. Second, the search warrant language in subsection (t) of the statute, which was quoted by die panel to bolster its conclusion, is the precise language considered by the Supreme Court in Adee in determining that the legislature did not intend to create a search warrant exception to the existing statutory provision that prohibited blood-alcohol testing after a refusal.
Prior to revisions in 1986, the following provision in the implied consent statute had always been construed to prohibit an officer from obtaining a search warrant from a neutral magistrate for non-consensual blood-alcohol testing after a request for consent to testing had been refused:
“After giving [the required oral and written notices], a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the person refuses to submit to and complete a test as requested pursuant to this section, additional testing shall not be given (Emphasis added.) K.S.A. 1986 Supp. 8-1001(f)(l).
When revising the statute in 1986, the legislature added subsection (g), which stated: “Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant.” K.S.A. 1986 Supp. 8-1001(g).
As noted above, the issue presented to the court for determination in Adee was whether the legislature intended subsection (g) to create a search warrant exception to the statutory ban on non-consensual blood-alcohol testing after refusal. Noting that new subsection (g) spoke only to admissibility at trial of test results obtained by a search warrant, the court began its analysis by reviewing the legislative history relevant to subsection (g) as originally introduced, which provided:
“ ‘(g) Nothing in this section shall be construed to limit the admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant. A search warrant permitting alcohol or drug concentration testing may be issued only upon a showing that a law enforcement officer has probable cause to believe the person was operating a motor vehicle while under the influence of alcohol or drugs and the motor vehicle was involved in an accident resulting in death or serious personal injury likely to result in death.’ See SB 127 [1985], as Amended by Senate Committee of The Whole, and House Federal and State Affairs Committee, at 7.” Adee, 241 Kan. at 832.
The Adee court determined from its review of the original bill that the legislature did not intend to create a search warrant exception to the existing statutory provision that prohibited blood alcohol testing after a refusal but instead intended to clarify that nothing in the implied consent statute rendered alcohol concentration test results arising out of search warrants issued under some other authority inadmissible in DUI trials. 241 Kan. at 832.
In an apparent reaction to the holding in Adee, the Kansas Legislature amended K.S.A. 8-1001 in the next legislative session. Among other additions, the amended version of the statute contained a new qualification concerning what occurs following a test refusal:
“If the person refuses to submit to and complete a test as requested pursuant to the section, additional testing shall not be given unless the certifying officer has probable cause to believe that the person, while under the influence of alcohol or drugs, or both, has operated a motor vehicle in such a manner as to have caused tire death of or serious injury to another person. In such event, such test or tests may be made pursuant to a search warrant issued under the authority of K.S.A. 22-2502 and amendments thereto or without a search warrant under the authority of K.S.A. 22-2501 and amendmeiits thereto.” K.S.A. 1988 Supp. 8-1001(f)(l).
In 2001, the legislature reorganized this version of the provision and separated it into two subsections:
"(h) After giving the foregoing information, a law enforcement officer shall request the person to submit to testing. The selection of the test or tests shall be made by the officer. If the person refuses to submit to and complete a test as requested pursuant to this section, additional testing shall not be given unless the certifying officer has probable cause to believe that the person, while under the influence of alcohol or drugs, or both, has operated a vehicle in such a manner as to have caused the death of or serious injury to another person. . . .
“(k) An officer shall have probable cause to believe that the person operated a vehicle while under the influence of alcohol or drugs, or both, if die vehicle was operated by such person in such a manner as to have caused the death of or serious injury to another person. In such event, such test or tests may be made pursuant to a search warrant issued under the authority of K.S.A. 22-2502, and amendments thereto, or without a search warrant under the authority of K.S.A. 22-2501, and amendments thereto.” K.S.A. 8-1001.
In 2008, the legislature made major revisions to the implied consent statute. See L. 2008, ch. 170, sec. 1 The most significant revision was an amendment made to subsection (b) of the statute. Before 2008, an officer was required to ask a person to submit to blood-alcohol testing when the officer had reasonable grounds to believe a person was operating or attempting to operate a vehicle while under the influence of alcohol or drugs and either (a) the person was in custody or had been arrested for a DUI offense or (b) the person had been involved in a car accident resulting in property damage, personal injury, or death. After 2008, however, the statute required an officer to ask a person to submit to blood-alcohol testing when (1) the officer had reasonable grounds to believe a person was operating or attempting to operate a vehicle while driving under the influence and either (a) the person was in custody or had been arrested for a DUI offense or (b) the person had been involved in a car accident resulting in property damage or a personal injury other than serious injury; or (2) the person was operating or attempting to operate a vehicle and the vehicle was involved in an accident resulting in serious injury or death and the operator could be cited for any traffic offense. K.S.A. 2008 Supp. 8-1001(b). The statute provides that the traffic offense violation shall constitute probable cause for purposes of paragraph (2).
The significance of the 2008 amendment is that under subsection (b)(2), an officer is not only authorized, but required, to ask a person to consent to a blood draw for purposes of alcohol testing without the officer having any suspicion, let alone reasonable grounds or probable cause, to believe that the driver was under the influence of drugs or alcohol. Eliminating the requirement that an officer have reasonable grounds to believe a person is driving under the influence before making a request to submit to blood-alcohol testing represents a significant shift in the law, as this requirement was a constitutional safeguard included in the statute when it was originally enacted in 1955 and remained firmly entrenched for over 50 years until the amendment in 2008. To that end, a panel of this court recently held that this particular portion of the statute — see K.S.A, 2011 Supp. 8-1001(b)(2) requiring a search and seizure absent probable cause to believe the person was operating or attempting to operate a vehicle under the influence of drugs or alcohol — was unconstitutional “to the extent it requires a search and seizure absent probable cause.” State v. Declerck, 49 Kan, App. 2d 908, 919, 317 P,3d 794 (2014) (finding traffic infraction plus an injury or fatality, without more, did not constitute probable cause that drugs or alcohol were involved in the accident).
In addition to the significant changes it made to subsection (b), the legislature also modified existing language, added additional provisions, and then reorganized the subsections within the entire statute by subject matter. We have summarized this reorganization in the following table, which compares the subject matter for each of the alphabetically designated subsections of the 2007 version of the statute to the subject matter for that subsection of the 2008 version:
Critical to the issue presented here, and as the italicized language in the table reflects, the legislature repositioned the provision relating to when additional testing can be given after a person already has refused to submit to a test. In previous versions of die statute, the provision prohibiting additional testing after a refusal was positioned in the same subsection (subsection [h]) that required officers to request testing after providing the required notice and to suspend a license for a refusal to submit to testing. In the 2008 revision, however, the legislature opted to reposition the “no testing after refusal” component of subsection (h), which was the provision dedicated to license suspension for test refusal or failure, moving it to subsection (d), which is the provision that is specifically dedicated to the authority of law enforcement to direct a medical professional to draw a sample of blood. See K.S.A. 2008 Supp. 8-1001(d)(3). As the table also reflects, the provision regarding testing with or without a search warrant based on probable cause to believe the driver is driving under the influence when there was an accident causing death or serious injury was moved from subsection (k) to subsection (p) and the “[njothing in this section shall be construed to limit admissibility at any trial of alcohol or drug concentration testing results obtained pursuant to a search warrant” language was moved from subsection (o) to subsection (t). See K.S.A. 2008 Supp. 8-1001(p), (t).
Based on the discussion above, and completely contrary to the conclusion reached by the panel in Webb, file 2008 revisions to the implied consent statute did not eliminate — but merely repositioned — the language prohibiting additional testing after a refusal. And contrary to the Webb panel’s conclusion that new subsection (t) bolsters its conclusion, our discussion makes clear that the search warrant language in that subsection was merely repositioned by the legislature from subsection (o) and is the exact same provision at issue when our Supreme Court held in Aclee that the legislature did not intend to create a search warrant exception to the existing statutory provision that prohibited blood-alcohol testing after a refusal.
The language set forth in implied consent statute as revised in 2008 is plain and unambiguous; thus, there is no need to resort to statutory construction. Giving effect to the express language used by the legislature when it revised the statute in 2008, as well as the firmly entrenched Supreme Court precedent that remains unaffected by these statutory revisions, we conclude that the implied consent statute continues to prohibit an officer from obtaining a search warrant after a test refusal. Notably, our conclusion in this regard is entirely consistent with the public policy underlying the statute. Critical to the fundamental principles upon which the concept of implied consent is based, a refusal to consent occurs only after an officer makes a request for consent to submit to testing. And if the driver consents, the subsequent testing falls within the consent exception to the warrant requirement. See State v. Thompson, 284 Kan. 763, Syl. ¶ 11, 166 P.3d 1015 (2007). The consent to testing is implied, not actual, and if submission is not forthcoming, then the legislature has implemented various provisions by which to coerce the consent through knowledge and fear of adverse consequences. State v. Bristor, 236 Kan. 313, 319, 691 P.2d 1 (1984). But as set forth below, the adverse consequences utilized by our legislature to coerce this consent do not include physically forcing consent to testing against the driver s will, absent exigent circumstances.
If a driver refuses to consent to testing, an officer may direct medical personnel to draw blood from the driver without a warrant under K.S.A. 2010 Supp. 8-1001(d) only if the driver was operating or attempting to operate a vehicle that was involved in an accident resulting in serious injury or death and the driver could be cited for any traffic offense. If the criteria for drawing blood is not met, the test refusal stands and, under K.S.A. 2010 Supp. 8-1002(a), the law enforcement officer must certify that (1) there were reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol or drags, or both, (2) the person had been placed under arrest, was in custody, or had been involved in a vehicle accident or collision, (3) a law enforcement officer had presented the person with the oral and written notice required by K.S.A. 2010 Supp. 8-1001, and (4) the person refused to submit.to and complete a test as requested by a law enforcement officer. If the Division of Vehicles within the KDOR finds' that the officer’s certification meets the statutory requirements,- the Division is required to suspend the person’s driving privileges. K.S.A. 2010 Supp. 8-1002(f). The suspension imposed is governed by K.S.A. 2010 Supp. 8-1014(a):
“(1) On the person’s first occurrence, suspend the person’s driving privileges for one year and at the erid of the suspension, restrict the person’s driving privileges for one year and at the end of the suspension, restrict the person’s driving privileges for one year to driving only a motor vehicle equipped with an ignition interlock device;
“(2) on the person’s second o'é'ctfrrence, suspend the person’s driving privileges for two years;
“(3) on the person’s third occuttenee, suspend the person’s driving privileges for three years;
“(4) on the person’s fourth occurrence, suspend the person’s driving privileges for 10 years; and
“(5) on the person’s fifth or subsequent occurrence, revoke the person’s driving privileges permanently.”
In addition to a loss of driving privileges, a refusal can be admitted as evidence at a criminal DUl trial. Although not applicable to this case, as of July 1, 2012, it is also a Separate crime to refuse to consent to testing if, at any time on of after July 1, 2001, the arrestee had previously refused a test or had been convicted of, or entered into a diversion program for, a DUI. K.S.A, 2013 Supp. 8-1025. Under the new criminal refusal law, the penalties for refusal are equal to or greater than the penalties for driving under the influence.
Given the well-established statutory framework that has long existed for those drivers who refuse to consent to testing, as well as the nature of the penalties that have been imposed by the legislature for years on those drivers, the implied consent law in Kansas has always been construed as one that provides an effective means of overcoming a driver’s refusal to consent to testing without resorting to physical force, absent those exceptional circumstances designated by statute. Furthmyer v. Kansas Dept. of Revenue, 256 Kan. 825, 835, 888 P.2d 832 (1995); Adee, 241 Kan. at 831; Bristor, 236 Kan. at 319; State v. Garner, 227 Kan. 566, 571-72, 608 P.2d 1321 (1980); State v. Weilert, 43 Kan. App. 2d 403, 410, 225 P.3d 767 (2010). Obtaining a search warrant for chemical testing after a refusal to consent to testing presumably will involve varying degrees of physical restraint in order to extract blood against a person’s will, which directly contradicts such a construction.
Based on the implied consent statute itself, the well-established precedent from our Supreme Court, and the public policy underlying implied consent principles, we conclude an officer is prohibited from obtaining a search warrant to extract blood after a person has refused to consent to a request to submit to blood-alcohol testing. Given this conclusion, the officers in this case erroneously informed Hoeffner that they could obtain a search warrant to involuntarily extract blood from him for purposes of alcohol testing if he did not change his mind and voluntarily submit to testing. Because the officers did not have legal grounds upon which to obtain a warrant, we necessarily construe the officers’ threat to obtain a warrant as unlawful coercion that invalidated Hoeffner’s consent. See State v. Brown, 245 Kan. 604, 612, 783 P.2d 1278 (1989). Because Hoeffner did not voluntarily consent to the testing upon which the decision to suspend his driver’s license was based, we next turn to the issue of remedy.
Remedy
A Fourth Amendment violation does not automatically trigger the exclusionary rule; rather, the rule applies only where the benefit of deterrence outweighs the rule’s “ ‘substantial social costs.’ ” Davis v. United States, 564 U.S. 299, 237, 131 S. Ct. 2419, 180 L. Ed. 2d 285 (2011) (quoting United States v. Leon, 468 U.S. 897, 907, 104 S. Ct. 3405, 82 L. Ed. 2d 677 [1984]). Critical to the outcome of this case, our Supreme Court has held that the exclusionary rule should not be applied in administrative driver’s license suspension proceedings arising out of an arrest for driving under the influence. Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 641, 646, 176 P.3d 938 (2008). This is because the deterrent purpose of the rule in fostering constitutionally correct conduct on the part of government agents may be sufficiently assured by excluding evidence from any related prosecution for the DUI offense itself. 285 Kan. 625, Syl. ¶ 8. Thus, even if the officer violated Hoeffner’s constitutional rights in obtaining the breath test after his refusal, the test results reflecting that Hoeffner had an alcohol concentration of .08 or greater in his blood were admissible in both administrative and court proceedings relating to the suspension of his driver s license. As such, we find substantial competent evidence supports the district court’s decision to uphold the suspension of Hoeffner’s license.
Affirmed.
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Powell, J.:
Anthony H. Martinez appeals his sentence for failure to register under the Kansas Offender Registration Act. Martinez argues the district court improperly utilized three prior misdemeanor convictions to enhance his sentence, a violation of his jury trial rights under the Sixth Amendment to the United States Constitution and contrary to the holding in Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and the more recent United States Supreme Court opinion in Descamps v. United States, 570 U.S_, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). Because we are uncertain after a review of the record whether Martinez’ 1997 conviction for failing to comply with bond restrictions under a municipal ordinance involved impermissible contact with a third person, we must vacate Martinez’ sentence and remand for further proceedings.
Facts
In February 2013, Martinez entered a no contest plea to an offender registration violation, a severity level 6 person felony; his presentence investigation report (PSI) indicated he had a criminal histoiy score of B in part because three municipal ordinance convictions were treated as person misdemeanors and aggregated to count as one person felony. At sentencing Martinez objected to the PSI, arguing to tire district court that it could not use his three prior convictions for failing to comply with bond restrictions in violation of Wichita Municipal Ordinance § 1.04.125 in scoring his criminal histoiy because the ordinance was not comparable to any person misdemeanors under Kansas law. Specifically, Martinez asserted that the municipal ordinance was broader in scope than the statute defining violation of a protective order, K.S.A. 2013 Supp. 21-5924, which was put forth by the State as the comparable statute for criminal histoiy purposes. The district court overruled the objection, finding the municipal convictions were properly classified as person misdemeanors, and sentenced Martinez to 37 months in prison but granted a dispositional departure to 24 months’ probation.
Martinez timely appeals.
Did the District Court Err in Classifying Martinez’ Municipal Convictions When It Calculated His Criminal History Score?
Martinez argues the district court erred in classifying his municipal convictions for failing to comply with bond restrictions as person misdemeanors for criminal history purposes. The State disagrees, arguing K.S.A. 2013 Supp. 21-6810(a) defines criminal history categories to include “convictions and adjudications for violations of municipal ordinances . . . which are comparable to any crime classified under the state law of Kansas as a person misdemeanor.”
Standard of Review
The classification of prior convictions as person or nonperson crimes, as well as the interpretation of a sentencing statute, present questions of law in which our review is unlimited. See State v. Jolly, 291 Kan. 842, 845-46, 249 P.3d 421 (2011); State v. Barajas, 43 Kan. App. 2d 639, 642, 230 P.3d 784 (2010).
Analysis
A. Is the Wichita municipal ordinance comparable to any misdemeanor statute for use in calculating Martinez' criminal history?
The Revised Kansas Sentencing Guidelines Act (KSGA), K.S.A. 2013 Supp. 21-6801 et seq., provides that criminal sentences are essentially based on two controlling factors — the criminal history of the defendant and the severity level of the crime committed, with person crimes having a greater impact. State v. Vandervort, 276 Kan. 164, 178, 72 P.3d 925 (2003); see K.S.A. 2013 Supp. 21-6804(c). A defendant’s criminal history score is calculated by tabulating the offender’s prior convictions to generate a criminal history score, with A being the highest and I being the lowest. K.S.A. 2013 Supp. 21-6803(d). The more extensive the criminal history of tire defendant and/or the greater the severity level of the crime, the lengthier the guideline sentence. See K.S.A. 2013 Supp. 21-6804(a).
K.S.A. 2013 Supp. 21-6810(d)(5) requires that municipal ordinance violations comparable to all person misdemeanors, class A nonperson misdemeanors, and class B select nonperson misdemeanors, be considered and scored in determining criminal his-toiy. Additionally, every three prior adult convictions of class A and class B person misdemeanors are to be aggregated into one adult person felony conviction for a defendant’s criminal history purposes. K.S.A. 2013 Supp. 21-6811(a). These convictions include any municipal ordinance violations comparable to class A and class B adult person misdemeanors. State v. Vega-Fuentes, 264 Kan. 10, 15, 955 P.2d 1235 (1998). When determining whether such municipal ordinance violations are comparable with any misdemeanor under Kansas law, such comparison must be done “in accordance with the penalty provisions in effect at the time the crime was committed.” State v. Williams, 291 Kan. 554, 560, 244 P.3d 667 (2010).
The issue here is whether Martinez’ 1994, 1995, and 1997 convictions for violating Wichita Municipal Ordinance § 1.04.125 are comparable to any misdemeanor offense under Kansas law. The State argues that K.S.A. 2013 Supp. 21-5924(a)(4), violation of a protective order, is the comparable misdemeanor statute, while Martinez rejects this comparison.
We note at the outset, however, that neither party argues the comparable statute in effect at tire time Martinez violated Wichita Municipal Ordinance § 1.04.125. Our task is to determine whether any misdemeanor offenses in effect in 1994, 1995, and 1997 compare to the municipal ordinance in question as those are the years in which Martinez committed his crimes. Our research has failed to find any comparable offenses for the years 1994 and 1995. However, in 1996, the legislature enacted K.S.A. 1996 Supp. 21-3843, the predecessor statute to K.S.A. 2013 Supp. 21-5924 prior to its recodification, a violation of which was a class A person misdemeanor. L. 1996, ch. 208, sec. 2. Fortunately, its wording is almost identical to the current version of tire statute, and therefore we can apply the parties’ arguments concerning K.S.A. 2013 Supp. 21-5924(a)(4) to K.S.A. 1996 Supp. 21-3843(a)(4).
K.S.A. 1996 Supp. 21-3843(a)(4) defines violation of a protective order as knowingly violating “an order issued as a condition of pretrial release, diversion, probation, suspended sentence, or post-release supervision that orders the person to refrain from having any direct or indirect contact with another person . . . .” The municipal ordinance in question, Wichita Municipal Ordinance § 1.04.125 Subsection (1)(a), provides:
“Restrictions on Appearance Bonds. A municipal court judge may, to assure the public safety and the appearance of a person for trial, place restrictions on the association (including no contact orders with the victim or others) or place of abode of persons for violations of the code of the city during periods of release prior to trial, where a bond is posted for appearance before the municipal court pursuant to Charter Ordinance No. 122, K.S.A. 12-4301 and K.S.A. 12-4302.”
In addition, § 1.04.125 Subsection (2) states:
“Failure to Comply with Bond Conditions. Any person who is released from custody on an appearance bond, with or without surety, or on their own recognizance, that has restrictions placed on die bond pursuant to this section of the code, who knowingly violates or knowingly fails to comply with said restrictions shall be guilty of a misdemeanor, and upon conviction, shall be punished by a fine not to exceed two thousand-five hundred dollars and by imprisonment of not more than one year, or by both such fine and imprisonment.”
In determining what constitutes a comparable offense under the KSGA, Kansas courts have found that while it is necessary to compare the elements of each offense, the elements do not need to be identical. The essential question is whether the offenses are similar in nature and cover similar conduct. See Vandervort, 276 Kan. at 178-79 (offenses need not have identical elements for purposes of being comparable under K.S.A. 21-4711[e]); Barajas, 43 Kan. App. 2d at 643-44 (offenses are comparable if they are similar in nature and cover a similar type of criminal conduct, but the elements need not be identical); State v. Schultz, 22 Kan. App. 2d 60, 62, 911 P.2d 1119 (1996) (offenses are comparable, even though they are differently worded, where they are similar in nature and cover similar types of criminal conduct).
Martinez argues the municipal convictions at issue are not directly comparable to a Kansas person misdemeanor because the municipal ordinance criminalizes acts beyond those covered in K.S.A. 1996 Supp. 21-3843(a)(4). He asserts that because there is not a “direct correlation between the elements,” his convictions should not have been deemed person misdemeanors. Conversely, the State argues that while the municipal ordinance and K.S.A. 1996 Supp. 21-3843(a)(4) are not identical, they are similar in nature and cover a similar type of conduct. Section 1.04.125 expressly allows a municipal judge to place restrictions on association, including no contact orders with the victim or others. Likewise, K.S.A. 1996 Supp. 21-3843(a)(4) deals with orders requiring a person to refrain from having any direct or indirect contact with another person.
For the purpose of satisfying the requirements of K.S.A. 2013 Supp. 21-6810, we agree with the State that the essence of the municipal ordinance and K.S.A. 1996 Supp. 21-3843(a)(4) is the same. Martinez is basically arguing that the offenses must have identical elements, but as we have noted above, the statute does not require such exactitude. We hold that Wichita Municipal Ordinance § 1.04.125 is comparable to K.S.A. 1996 Supp. 21-3843(a)(4) for the purposes of K.S.A. 2013 Supp. 21-6810(d)(5).
B. Did the district court impermissibly rely on facts other than the fact of a prior conviction to increase Martinez’ criminal history scoreP
However, our analysis does not end here because Martinez also argues that in order to classify the prior convictions at issue as person misdemeanors, the sentencing court had to engage in additional factfinding outside the facts proven by the mere existence of the prior convictions, which he claims violates the holdings in Apprendi and Descamps.
Initially, we note that Descamps was decided on June 20, 2013, so the district court here did not have the benefit of its guidance when it sentenced Martinez on April 4, 2013. While Martinez argued before the district court that the municipal ordinance was broader than K.S.A. 1996 Supp. 21-3843(a)(4), he raises the Ap prendí argument for the first time on appeal. The Kansas Supreme Court, however, has reviewed Apprendi issues raised for tire first time on appeal, and we will do so here. See State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001); see also State v. Dickey, 50 Kan. App. 2d 468, 472, 329 P.3d 1230 (2014) (consideration of Descamps claim for first time on appeal necessary to serve ends of justice and to prevent denial of fundamental right).
Under Apprendi, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490. The policy rationale behind Apprendi is that a court violates the United States Constitution if it invades the jury’s territory by finding facts at sentencing. See Shepard v. United States, 544 U.S. 13, 25, 125 S. Ct. 1254, 161 L. Ed. 2d 205 (2005) (“[Tjhe Sixth and Fourteenth Amendments guarantee a jury standing between a defendant and the power of the State, and they guarantee a jury’s finding of any disputed fact essential to increase the ceiling of a potential sentence.”). A narrow exception exists for the fact of a prior conviction because of the procedural safeguards which attach to such a fact. Apprendi, 530 U.S. at 488. As a result, in the typical case under our sentencing guidelines, tabulating a defendant’s prior convictions to determine the criminal history score, which usually has the effect of increasing a defendant’s sentence, does not violate a defendant’s jury trial rights. State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002).
However, as Martinez correctly points out, when the district court is required to rely on facts outside of the mere fact of a prior conviction, then Apprendi is implicated. Martinez specifically relies on the recently issued opinion of Descamps, 133 S. Ct. 2276, where the United States Supreme Court held that a defendant’s prior conviction for burglary under California law could not be counted as a predicate offense for burglary under the federal Armed Career Criminal Act (ACCA), which increases the sentences of defendants who have three prior convictions for violent felonies. Unlike the ACCA’s “general burglary” definition, the California burglary stat ute at issue did not require unlawful entry as do most burglary laws; it provided that a “person who enters” certain locations “with intent to commit grand or petit larceny or any felony is guilty of burglary.” California Penal Code Ann. § 459 (West 2010). The Descamps Court stated that the sentencing court would have had to look at Descamps’ prior burglaries in order to determine whether he did break and enter or merely shoplifted in order to count the prior burglaries for ACCA purposes. The Court held that such an inquiry raised Sixth Amendment concerns because it required the sentencing court to invade the jury’s factfinding territory. See 133 S. Ct. at 2281-87.
To determine whether a prior conviction qualified as a sentence enhancer under the ACCA, the Descamps Court held that the sentencing court must use one of two approaches — the categorical approach or tire modified categorical approach. 133 S. Ct. at 2281-84, 2287; see also Dickey, 50 Kan. App. 2d at 483-84 (detailed discussion of categorical versus modified categorical approaches). Under the categorical approach, the sentencing court is to simply “compare the elements of the statute forming the basis of the defendant’s conviction with tire elements of the "generic’ crime 133 S. Ct. at 2281. If the elements of the prior conviction are the same as or narrower than the elements of the corresponding crime under the ACCA, then the prior conviction may be counted as a predicate offense for sentence enhancement purposes under the ACCA. 133 S. Ct. at 2281, 2283.
The modified categorical approach applies when the statute defining tire elements of the prior offense in state law is broader tiran the corresponding generic offense as defined in the ACCA. Descamps, 133 S. Ct. at 2281, 2283-84. However, this approach may only be utilized when the prior conviction involves a ""divisible statute,” meaning a statute which comprises multiple, alternative versions of the crime, at least one of which matches the elements of the generic offense. 133 S. Ct. at 2281-82, 2284-85. In such an instance, the sentencing court cannot tell upon which version of the prior statute the defendant’s conviction was based and therefore is permitted to look beyond the elements in tire statutes and examine limited extra-statutory materials to determine “which of a [prior] statute’s alternative elements formed the basis of the defendant’s prior conviction.” Descamps, 133 S. Ct. at 2284. Such extra-statutory materials include charging documents, plea agreements, jury instructions, verdict forms, and transcripts from plea colloquies as well as findings of fact and conclusions of law from a bench trial. Johnson v. United States, 559 U.S. 133, 144, 130 S. Ct. 1265, 176 L. Ed. 2d 1 (2010).
However, the Descamps Court clarified that the modified categorical approach may not be used if the statute is not divisible. 133 S. Ct. at 2281-83. And, even if the statute is divisible, the modified categorical approach may not apply
“because, in some cases, none of the alternative elements will match any elements of the corresponding generic crime. Tost-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.” Dickey, 50 Kan. App. 2d at 487 (citing Descamps, 133 S. Ct. at 2286).
Here, in order to avoid engaging in forbidden judicial factfind-ing, we must examine whether the elements of the prior offense at issue, Wichita Municipal Ordinance § 1.04.125, match the elements of the corresponding “generic” offense, K.S.A. 1996 Supp. 21-3843(a)(4). The State argues because the ordinance is a divisible one, the modified categorical approach applies. Martinez argues the ordinance is broader than the misdemeanor statute and the elements do not match. Martinez also argues another ordinance is much more analogous.
We think it irrelevant that another ordinance may be more analogous to the misdemeanor statute in question. If the elements of the municipal ordinance match those in the misdemeanor statute, then Martinez’ Sixth Amendment rights are satisfied and it matters not what another ordinance may state. When reviewing both, it would appear that although the municipal ordinance is broader, contained within the ordinance are elements which prohibit contact with a third person, appearing to match the elements contained in the statute and suggesting that the modified categorical approach is applicable.
The operative language in the violation of a protective order statute, K.S.A. 1996 Supp. 21-3843(a)(4), “orders the person to refrain from having any direct or indirect contact with another person . . . In comparison, Wichita Municipal Ordinance § 1.04.125(1)(a) sets out alternative versions of the “Failure to Comply” crime under § 1.04.125(2). That is, the ordinance prohibits persons released from custody from knowingly violating or knowingly failing to comply with (a) “restrictions on [their] association (including no contact orders with the victim or others)” or (b) “place of abode.” Alternative (a) matches the element in the misdemeanor statute, but alternative (b) does not. See 133 S. Ct. at 2281. Therefore, in order to determine whether Martinez was convicted under alternative (a), we are permitted to examine in the record the appropriate extra-statutory materials. See Johnson, 559 U.S. at 144.
Unfortunately, because the sentencing hearing took place prior to the issuance of Descamps, the parties were not really focused on what documents were needed to establish that Martinez’ 1997 failure to comply with bond restrictions involved having prohibited contact with a third person. At sentencing, the prosecutor provided the court with documents relating to Martinez’ three municipal convictions for failing to comply with bond restrictions. Significantly, we note the record reveals that Martinez had five other person misdemeanors which were converted for criminal history purposes; thus, only one of his convictions for failure to comply with bond restrictions needed to qualify as a person misdemeanor in order to place Martinez in criminal history category B. Our review of the documents in the record leaves us uncertain whether Martinez’ 1997 failure to comply with bond restrictions involved prohibited third person contact; therefore, we must vacate the defendant’s sentence and remand the matter to the district court for a further examination of the appropriate extra-statutory materials to explore this question.
Did the District Court Err When It Increased Martinez’ Sentence Based on His Criminal History?
Finally, Martinez argues that the use of his criminal history to calculate his guidelines sentence was unconstitutional because his past convictions were not proved in this case to a jury. See Apprendi, 530 U.S. 466. As we have already suggested, our Supreme Court has rejected this argument, and we reject it as well. See State v. Baker, 297 Kan. 482, 485, 301 P.3d 706 (2013); Ivory, 273 Kan. at 46-48.
Sentence vacated, and case remanded with directions consistent with this opinion. | [
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Hill, J.:
Great Bend Cooperative Association and its insurer, Triangle Insurance Company, argue diat the Workers Compensation Board erred when it held they failed to prove the impairment defense in this workers compensation case. The Co-op contends Young, suffering from adult-onset asthma, was not entitled to benefits because she was a smoker and had smoked crack cocaine in the past. Because the Co-op has failed to prove Young was impaired at tire time of her injury, we hold the Board did not err. We affirm.
Young started work during harvest.
The facts are undisputed. Brenda Young first worked as a scale house operator for Great Bend Cooperative during the 2009 fall harvest. That job did not involve open exposure to airborne grain dust. The next fall, Young returned to work for the Co-op, this time as a grain elevator operator from August 2010 until October 2010. This work exposed her to grain dust.
In October 2010, Young developed a constant cough and fever. She sought medical treatment from a local health clinic. The treating physician prescribed inhalants and ordered chest x-rays. The next day, Young notified the Co-op of her symptoms and the medical treatment she had received. The employer sent Young to Dr. Keener, who separately prescribed inhalants and referred Young to Dr. Gerald Kerby, a pulmonologist.
Prior to this time, Young had no breathing or upper respiratory problems. Young smoked about half a pack of cigarettes a day for 2 years before her difficulties at the Co-op. Young stopped smoking cigarettes after she developed her breathing difficulties in October 2010. Young also admitted she had smoked crack cocaine twice a month from 2003 until 2006 but maintained she had not smoked illegal drugs since 2006. Young has not worked since October 2010. The parties stipulated to October 22, 2010, as the date of accident.
Dr. Kerby examined Young twice. After conducting some tests, Dr. Kerby concluded Young had adult-onset asthma. He testified that the grain dust “triggered” Young’s asthma but attributed the cause of Young’s asthma equally to her history of smoking cigarettes or crack cocaine — both respiratory irritants — and her exposure to dust while employed at the Co-op. Dr. Kerby determined Young had a 20 percent whole person impairment of function due to her asthma and apportioned 50 percent of Young’s functional impairment to smoking and “lifestyle” and the remaining 50 percent to grain dust exposure.
Young sought workers compensation benefits for the respiratory injury she allegedly sustained due to her exposure to grain dust. The Co-op raised the impairment defense found in K.S.A. 2010 Supp. 44-501(d)(2), alleging Young was not entitled to compensation because of her history of smoking tobacco and crack cocaine.
We review the administrative agency history.
Rejecting the impairment defense raised by the Co-op, the administrative law judge entered an award granting Young permanent partial disability benefits. After noting Young last smoked crack cocaine in 2006 and had no symptoms of asthma until she started working for the Co-op in 2010, the ALJ found the causal connection between smoking crack cocaine 4 years earlier and the development of her asthma was speculative. Moreover, the ALJ ruled there was no evidence to support the requirement in the statute that a claimant’s illegal drug use “must both cause impairment and be contemporaneous with the accident.” The ALJ also found Young’s prior tobacco use was lawful, did not impair her ability to perform the duties of her job, and was more akin to a preexisting condition or disability. The Co-op appealed to the Workers Compensation Board.
The Board affirmed the award, holding the Co-op did not meet its burden to prove the impairment defense. Citing Wiehe v. Kissick Construction Co., 43 Kan. App. 2d 732, 232 P.3d 866 (2010), as authority, the Board concluded K.S.A. 2010 Supp. 44-501(d)(2) required that the “respondent must demonstrate claimant was ‘impaired’ within the meaning of the statute and that claimant’s injury, disability or death was ‘contributed to’ by claimant’s use of alcohol or drugs.”
The Board found the Co-op did not prove Young was “impaired” as that term is defined in K.S.A. 2010 Supp. 44-501(d)(2) because:
• there was no evidence of any concentration of crack cocaine in Young’s body when her injury occurred, and
• Young had not experienced any symptoms of asthma before working for the Co-op in 2010.
Finally, the Board found the Co-op provided no persuasive authority that the legislature intended to include tobacco or tobacco smoke as an applicable drug, chemical, or other compound to which the impairment defense could apply.
The issue in this appeal is the same.
The Co-op maintains that it met its burden of proof. In its view, Dr. Kerby’s uncontroverted medical testimony that Young’s prior use of smoking tobacco and crack cocaine “contributed” to the development of her adult-onset asthma relieved it from any liability for her disability. It argues that under the plain meaning rule established in Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607-08, 214 P.3d 676 (2009), the Board should have construed the first sentence of the impairment defense differently.
Our rules of review
Review of this issue only concerns whether the Board correctly construed and applied K.S.A. 2010 Supp. 444-501(d)(2). In such cases, appellate courts have unlimited review of questions involving die interpretation or construction of a statute', owing “ ‘[n]o significant deference’ ” to the agency’s or the Board’s interpretation or construction. Ft. Hays St. Univ. v. University Ch., Am. Ass’n of Univ. Profs., 290 Kan. 446, 457, 228 P.3d 403 (2010), Moreover, when an appellant alleges the Board erroneously applied the law to undisputed facts, an appellate court has de novo review of the issue. Craig v. Val Energy, Inc., 47 Kan. App. 2d 164, 166, 274 P.3d 650 (2012), rev. denied 297 Kan. 1244 (2013). Finally, to the extent that a claimant’s argument relates to the Board’s interpretation and application of a worker’s compensation statute, this court shall grant relief only if it determines that “the agency has erroneously interpreted or applied the law.” K.S.A. 2013 Supp. 77-621(c)(4).
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom, 289 Kan. at 607. An appellate court must first attempt to ascertain legislative intent through tire 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). In Bergstrom, the Kansas Supreme Court held:
“When a workers compensation statute is plain and unambiguous, this court must give effect to its express language rather than determine what the law should or should not be. The court will not speculate on legislative intent and will not read the statute to add something not readily found in it. If the statutory language is clear, no need exists to resort to statutory construction.” 289 Kan. at 607-08.
However, even if the statutory language is clear, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable harmony if possible. And 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., 296 Kan. at 918.
Is the impairment defense applicable in this caseP
At the time of Young’s accident, K.S.A. 2010 Supp. 44-501(d)(2) stated:
“The employer shall not be liable under the workers compensation act where the injury, disability or death was contributed to by the employee’s use or consumption of alcohol or any drags, chemicals or any other compounds or substances .... In tlie case of drugs or medications which are available to the public without a prescription from a health care provider and prescription drugs or medications, compensation shall not be denied if the employee can show that such drags or medications were being taken or used in therapeutic doses and there have been no prior incidences of the employee’s impairment on the job as the result of the use of such drugs or medications within the previous 24 months. It shall be conclusively presumed that the employee was impaired due to alcohol or drugs if it is shown that at the time of the injury that the employee had an alcohol concentration of .04 or more, or a GCMS confirmatory test by quantitative analysis showing a concentration at or above the levels shown on the following chart for the drags of abuse listed:
One can see that the first sentence of this statute states that the employer is not liable for workers compensation benefits where the worker’s use or consumption of alcohol, drugs, chemicals, compounds, or substances contributed to the injury, disability, or death of the worker. The legislature included the term “contributed” as the employer’s standard of proof in 1993 after amending the 1967 standard of proof requiring that the injuiy to the worker resulted “ ‘solely from his intoxication’ ” by changing the word “solely” to “substantially” in 1974. Wiehe, 43 Kan. App. 2d at 743 (quoting Foos v. Terminix, 277 Kan. 687, 697-98, 89 P.3d 546 [2004], for the explanation of the legislative history of the impairment defense).
The second sentence of the statute provides that in those instances of therapeutic doses where the worker has taken either over-the-counter or prescription drugs for medical purposes, the worker must show there were no prior incidences of the worker’s impairment on the job because of the use of such drugs or medications. That scenario does not fit here. It is important to note at this point that had it wanted to, the legislature could have listed tobacco or tobacco smoke in this sentence.
Finally, the third quoted sentence of the impairment defense, as amended in 1993 and 2000, creates a conclusive presumption of impairment if a worker s chemical tests show amounts of alcohol or drugs in excess of the statutory levels when the worker was injured. See L. 2000, ch. 160, sec. 5; L. 1993, ch. 286, sec. 24. So, if, for example, a worker had a blood-alcohol concentration greater than .04 at the time of his or her injury, that is conclusive proof of impairment.
Along this same line,' a prior ruling by a panel of this court is instructive. In Wiehe, the panel addressed whether the employer had met its burden showing that the workers injury or disability was contributed to by his use of marijuana, as evidenced by a positive drug test at a level that under K.S.A. 2009 Supp. 44-501(d)(2) conclusively presumed the worker was impaired at the time of the accident. That alone did not necessarily prove that the worker s impairment was tire cause of his injury.
In discussing the relationship between the employer s burden to show that the claimant’s use of drugs contributed to the injuries and the conclusive presumption of impairment provision in the statute, the panel found:
“[A] conclusive presumption of impairment does not eliminate the employer’s burden to show that an employee’s injury, disability, or death was contributed to by the employee’s use or consumption of alcohol or any drugs, chemicals, or any other compounds or substances under K.S.A. 2009 Supp. 44-501(d)(2)[;] it does allow the employer to surmount a hurdle to meet the impairment exception under 44-501(d)(2).” Wiehe, 43 Kan. App. 2d at 744.
Wiehe clearly indicates that for an employer “to meet the impairment exception” under K.S.A. 2010 Supp. 44-501(d)(2) it must prove two things. 43 Kan. App. 2d at 744. The employer must show:
• the worker was impaired within the meaning of K.S.A. 2010 Supp. 44-501(d)(2) at the time of the injury; and
• the impairment contributed to tire worker’s injury or disability.
The Wiehe court noted it is simply easier for the employer to prove the worker was impaired if the worker was statutorily impaired. 43 Kan. App. 2d at 744. “Once it has been established that the employee was [statutorily] impaired under 44-501(d)(2), no additional evidence or argument can overcome that fact.” Wiehe, 43 Kan. App. 2d at 744.
An unpublished opinion from another panel that relied upon Wiehe clarified the interactions of these principles. In Hicks v. Butler Transport, Inc., No. 109,844, 2013 WL 6594296, at *3-4. (Kan. App. 2013) (unpublished opinion), the panel affirmed the appeals board’s decision approving a workers compensation award to a truck driver even though his blood test indicated there were cocaine metabolites greater than the statutory limit in his blood. The panel ruled that Butler Transport was required then to link Hicks’ impairment to his injuries and, since it did not, Hicks was entitled to benefits. 2013 WL 6594296, at *4.
Here, Dr. Kerby opined, “So you know, I can’t say that one is more.important than the other. In fact I said it was 50/50. I can’t really dissect out that one was more important. I think they were both factors.” He tiren proceeded to apportion die rating as he would for a preexisting condition.
The Kansas Supreme Court has always held the statute required a showing of impairment at the time of accident. In Schmidt v. Jensen Motors, Inc., 208 Kan. 182, Syl. ¶ 1, 490 P.2d 383 (1971), the court first interpreted the intoxication provision in K.S.A. 44-501(b) and held that employers “have the burden of establishing that the injury to or death of the workman results solely from his intoxication.” Similarly, in Poole v. Earp Meat Co., 242 Kan. 638, Syl. ¶ 4, 750 P.2d 1000 (1988), the court interpreted K.S.A. 1987 Supp. 44-501(d) and held: “To defeat a workers’ compensation claim based on claimant’s intoxication, an employer must prove not only that the claimant was intoxicated, but that such intoxication was the substantial cause of die injury.” See Kindel v. Ferco Rental, Inc., 258 Kan. 272, 285, 899 P.2d 1058 (1995) (same). And in Foos, the court interpreted the same language at issue here and held that the employer had established the worker was impaired due to alcohol and drat substantial evidence supported die administrative law judge’s conclusion that die worker’s consumption of alcohol contributed to his injuries. 277 Kan. at 700.
If we were to rule as the Co-op suggests and no longer construe the provisions of the impairment defense in pari materia, we would need to rewrite the statute. See Northern Natural Gas Co., 296 Kan. at 918. We see no language in the statute that leads us to conclude that if at some time in the past a worker s blood test levels exceeded the statutory limits for cocaine, as an example, that the legislature intended the conclusive presumption of impairment provision would apply and thus bar recovery of any benefits. To the contrary, the statute calls for proof of impairment and contribution to the injury.
We view this case to be more like a worker with a preexisting condition. Given the undisputed evidence that Young had not experienced any asthma symptoms prior to October 2010, coupled with Dr. Kerby’s opinion that had Young not been a smoker she “might have tolerated” the grain dust, we view the Co-op’s suggested reading of the statute would in essence create an entirely new statutory scheme. Such a view would prohibit workers compensation benefits if both the employer and worker were unaware at the time the worker was hired that the worker’s prior drug or tobacco use resulted in the worker having a predisposition to an ailment that could arise from that preexisting condition being “triggered” by the employment conditions. We do not agree with this view of the statute.
Here, it is undisputed that the conclusive presumption of impairment under K.S.A. 2010 Supp. 44-501(d)(2) did not apply to Young because there was no evidence introduced showing blood levels of any drug. More importantly, the record is devoid of any evidence that Young was impaired due to alcohol, drugs, chemicals, or any other compounds or substances in her system at the time of the accident drat would support a finding of impairment. Cigarette smoking, a legal activity, is not on that list. In fact, the Coop concedes it “is not alleging on-the-job impairment as a basis for the drag defense but instead is alleging that prior (as opposed to contemporaneous) use or consumption of drugs, chemicals compounds or substances ‘contributed to’ the injury or disability.” Without any evidence of contemporaneous impairment, either shown through the parameters establishing statutory impairment or other substantial evidence, the affirmative defense under K.S.A. 2010 Supp. 44-501(d)(2) did not apply to Young’s claim.
The Board did not err. Affirmed. | [
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Leben, J:
This case is before our court for a second time. In a published opinion in 2013, State v. Davis, 48 Kan. App. 2d 573, 294 P.3d 353 (2013), we held that the district court did not abuse its discretion in awarding restitution in the amount of the retail value of goods Davis had stolen from a department store. Davis sought review by the Kansas Supreme Court of both whether the amount of restitution was appropriate and whether the district court had jurisdiction to enter a restitution award.
In May 2014, the Kansas Supreme Court granted Davis’ petition for review, summarily reversed our decision, and remanded to us “for consideration in light of’ three recent Kansas Supreme Court opinions: State v. Hall, 298 Kan. 978, 319 P.3d 506 (2014); State v. Charles, 298 Kan. 993, 318 P.3d 997 (2014); and State v. Frierson, 298 Kan. 1005, 319 P.3d 515 (2014). The order remanding the case to us did not mention the two separate matters on which Davis sought review (amount of restitution and jurisdiction), but the three cases mentioned primarily dealt with jurisdiction issues. After receiving the remand order, we asked the parties to address how, if at all, our prior decision should be reconsidered in light of Hall, Charles, and Frierson. Both parties addressed only the jurisdictional issue. We will therefore primarily address the district court’s jurisdiction to enter its restitution order in this opinion.
Factual and Procedural Background
The facts relevant to the amount of restitution Davis owed JC Penney are set out in full in our original opinion. Davis, 48 Kan. App. 2d at 577-78. But we did not address in our earlier opinion whether the district court had jurisdiction to enter its restitution award because, at the time, we considered the matter settled by our Supreme Court’s decision in State v. Cooper, 267 Kan. 15, 16, 977 P.2d 960 (1999) (affirming district court’s ability to set restitution after sentencing when it held amount open at sentencing “to be determined” later). Accordingly, we need to set out here the facts related to the district court’s jurisdiction to enter the restitution order.
At Davis’ sentencing, when the issue of restitution was first discussed, the district court initially indicated that it was leaving open the determination of whether it would order Davis to pay restitution:
“THE COURT: Court’s going to be much more interested if a restitution order is entered to see that that restitution figure is paid [than it is in attorney fees]. We’ll determine [restitution] after a hearing on the issue.’’ (Emphasis added.)
The prosecutor tiren discussed with the court that any restitution must be a part of Davis’ sentence:
“Ms. Malin: What I have put in the journal entry, Your Honor, is on the costs ordered, I put on the restitution, I said, To be determined at the restitution hearing, and I-put the date and time also there.
“The Court: Sounds good.
“Ms. Malin: So that indicates that you are actually ordering restitution if in fact there is going to be — it has to be part of this sentencing is my point.
“The Court: Okay.
“Ms. Malin: If you should determine an amount, it’s ordered as part of this sentencing.
“The Court: Anything else? Defense?
“[Davis’ Attorney] Ms. Jensen: I don’t believe so, Your Honor.”
The journal entry of sentencing stated that the “Total Restitution” was “to be determined at [a] Restitution Hearing.” During the sentencing hearing, the court scheduled that hearing on restitution for July 21, 2011, at 1 p.m. Counsel for both parties agreed to the hearing time during the sentencing hearing.
At the restitution hearing, the court ordered Davis to pay JC Penney $1,168.
Analysis
Our Supreme Court’s holdings in Hall, Charles, and Frierson explain that a district court may order a defendant to pay restitution at the sentencing hearing and then determine the amount of restitution the defendant must pay at a later hearing. Hall, 298 Kan. 978, Syl. ¶ 2; Charles, 298 Kan. at 1002-03; Frierson, 298 Kan. 1005, Syl. ¶ 8. Going forward, the Kansas Supreme Court has instructed district courts that they can only retain jurisdiction to enter a restitution amount if they: (1) order a defendant to pay restitution at sentencing and communicate that obligation to the defendant; and (2) specifically order a continuance or bifurcation of the sentencing and restitution hearings. Hall, 298 Kan. 978, Syl. ¶ 2; Frierson, 298 Kan. at 1020-21; see Charles, 298 Kan. at 1002. But tire court also recognized that the standard for maintaining jurisdiction prior to these 2014 decisions was “relatively lax” and that many common procedures used historically were acceptable for keeping open the district court’s jurisdiction. Charles, 298 Kan. at 1002-03. For example, “holding open” jurisdiction for restitution could occur if the district court stated it was doing so on the record or if it accepted an agreement by the parties to hold a restitution hearing at a later date. Frierson, 298 Kan. at 1020-21. As the court put it in Charles, in order to postpone determining the amount of resti tution a defendant owes, a district court had to do “more than nothing" to hold open its jurisdiction. 298 Kan. at 1002.
Not every attempt to hold open jurisdiction before 2014 was acceptable. For example, in Charles, merely writing on the journal entiy — without commenting on it to the defendant or setting a further hearing before completing the sentencing hearing — drat part of the restitution amount ordered at sentencing was left “to be determined” did not preserve a district court’s jurisdiction. 298 Kan. at 1002-03.
Our task here is to decide whether the district court in Davis’ case did enough to preserve jurisdiction. The district court here behaved in some ways like the district courts in both Frierson, in which the district court had proper jurisdiction to enter die restitution award, and Charles, in which it did not. In Frierson, die district court initially announced a restitution award and the amount at sentencing, but it then said it was holding the matter open for 30 days to allow the parties to attempt to reach an agreement on die amount. Within that time period, the judge entered a restitution order signed by Frierson’s counsel. 298 Kan. at 1020-21. In Charles, the court made no clear statement that the defendant would have to pay restitution and didn’t either explicitly hold the matter open or set a later hearing. 298 Kan. at 1002. In our case, although the court was not entirely clear tiiat Davis would have to pay any restitution at all, it was clear that it was holding the matter open, it indicated in tire journal entry of sentencing that the amount of restitution was “to be determined,” and it set a further hearing with the agreement of the parties. The court in Davis’ case acted more like the Frierson court in that it did “more than nothing” to preserve jurisdiction. See Charles, 298 Kan. at 1002.
Our conclusion is confirmed by Davis’ response to the court’s order on remand. There, she recognizes that the district court in her case took sufficient steps to maintain jurisdiction to enter a restitution order:
“Ms. Davis acknowledges that at sentencing, the district court set a specific date for the restitution hearing, and restitution was imposed at the hearing on that date with Ms. Davis present, which was sufficient to retain jurisdiction prior to February 28, 2014, according to Hall, Charles, and Frierson.”
We conclude that the district court had the subject-matter jurisdiction to enter its restitution order.
As we noted at the start of this opinion, our earlier decision in this case addressed whether the district court properly determined the amount of the restitution award. Our Supreme Court’s grant of Davis’ petition for review had the effect of rendering that earlier decision of “no force or effect.” Supreme Court Rule 8.03(i) (2013 Kan. Ct. R. Annot. 74). Accordingly, there is no longer an effective appellate ruling on whether the district court erred in its determination of the restitution amount.
Neither party has suggested in its filing on remand that the Hall, Charles, or Frierson decisions had any impact on our ruling about that issue. While the Hall opinion did briefly discuss whether the amount of restitution awarded there was proper, 298 Kan. at 989-91, there is no similarity between the issue discussed there (whether a victim’s relocation expenses may be recovered as restitution on a conviction for attempted rape) and the restitution issue in Davis’ case. In our previous opinion, we stated as our holding that the retail value of goods stolen from a retail merchant may be awarded as restitution when that was the only evidence presented:
“In a case in which the defendant stole goods from a retail merchant, the district court does not abuse its discretion in awarding restitution in the amount of the goods’ retail value where diat was the only value evidence presented and no other evidence convincingly showed that an award of the retail value would have been inappropriate.” 48 Kan. App. 2d 573, Syl.
Later Kansas Supreme Court decisions do not suggest that our ruling on this issue in Davis’ case was in error. See State v. Hall, 297 Kan. 709, Syl. ¶ 1, 304 P.3d 677 (2013) (holding that there is no bright-line rule favoring either retail or wholesale value in ordering restitution); State v. Hand, 297 Kan. 734, 304 P.3d 1234 (2013) (holding that district judge has discretion to base restitution award on increased insurance premium rather than fair-market value of stolen property). We reaffirm our ruling that the district court did not abuse its discretion by awarding restitution in the amount of the retail value of the stolen goods, and we adopt by reference the explanation of that ruling contained in our previous opinion. See 48 Kan. App. 2d 573.
Before we close this opinion, we also note that the State filed a notice indicating that Davis has completed her probation and paid tire court-ordered restitution. We nonetheless conclude that her appeal is not moot because had she been successful in her appeal of the restitution order, she may have been entitled to a refund of the amounts she had paid. We need not address that question, however, because we have found no error.
The district court’s judgment is affirmed. | [
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Stegall, J.:
Aaron and Kara Shelhamer were divorced on October 7, 2009. Included in the divorce decree was a permanent parenting plan establishing joint custody of the children. Since that time, difficulties and disputes have persisted. On July 12, 2012, Aaron Shelhamer filed a motion seeking an order holding Kara Shelhamer (hereinafter “Shelhamer”) in indirect civil contempt for allegedly failing to comply with the parenting plan and subsequent court orders.
The district court held an evidentiary hearing on the contempt motion and subsequently found Shelhamer in contempt. The relevant portions of the journal entry state:
“The court finds that [Shelhamer] is in contempt as to the June 2, 2012 parenting time allegation; the parties agreed to the modification to 11 a.m. of the exchange time and [Shelhamer] was not on time for this exchange. . . . The court finds that [Shelhamer] is in contempt for failing to provide to the Petitioner/father the weekly update mandated by the existing court orders .... The court finds . . . that [Shelhamer] is in contempt for failing to honor the statutory court order to foster the relationship between the Petitioner/father and the minor children, . . . The court finds and orders that he is not going to put up with similar actions. . , . The court finds and orders that [Shelhamer] is sentenced to six months in the Sedgwick County jail. The court hereby suspends all but two days of that jail time. The jail time must be served within the next 30 days. The court hereby places [Shelhamer] on 12 months of probation with this court.”
Shelhamer then filed a motion to alter or amend the order along with a motion to stay the sentence. She argued that the district court erred by sentencing her to a determinate length of time in jail and by not providing her with an opportunity to purge herself of the contempt. At the hearing on Shelhamer s motion, the district court expressed its frustration with the constraints inherent to indirect civil contempt citations;
“I do not think the case law — and maybe I will get reversed, but I — who cares. I mean, I do care, but I just don’t envision that the law is that if you violate a court order . . . like in a divorce case, certain visitation times. If those are violated, no weekly updates .. . showing up habitually late for the parenting. . .. The judge’s hands are tied, . . . there can be basically no real penalty in contempt. I just don’t think that that’s what the law stands for. And what the Court of Appeals I think appreciates, I hope, and die Supreme Court is, is that it is extremely difficult to get the parties in family law cases to comply with the orders. That it is vitally important that trial court judges have the ability to enforce their orders.”
Then, in an attempt to modify its order to conform to existing caselaw requiring that a person subject to indirect civil contempt be given the ability to purge herself or himself of the contempt, the district court ruled as follows:
“So I will deny [Shelhamer’s] motion and require her to either immediately surrender herself to the Sedgwick County jail and remain there until she can provide proof to the court that she is providing the weekly updates, that. . . the next parenting time that the children are provided to Dad on time, and that there is no further derogatory comments made to die children or actions by [Shelhamer] to undermine the relationship between the minor children and [their father], or ... I will allow [Shelhamer] to do die two days in jail, per my previous order.”
Seeking clarification of this order, Shelhamer s counsel asked, “[H]ow are we supposed to comply with this order so that she does not have to spend any time in jail?” To which the district court replied:
“I understand this is difficult, but I am not going to allow that to turn court orders in family law cases into just so much fluff that’s non-binding, diat’s optional, that parties can willy-nilly mess with die other, mess over what’s in die children’s best interest, and dien give the court a big raspberry. . . . [T]his trial court judge is not going to stand for that.... I don’t think that tiiat’s what die law of contempt stands for, either. I think it stands for parties are going to comply witii court orders or diey are going to face the sanctions of the court, to include jail time.”
As such, die district court ordered that Shelhamer immediately report to jail and that she “stay in jail until the next parenting time.” At that point she could purge herself of the contempt by providing to the court “proof of the weekly updates, . . . proof the children are exchanged at the appropriate time next time, and make sure that there’s no derogatory words, comments, things that undermine the parent — the father’s parental relationship.” The district court then reiterated that Shelhamer had the option to “show up for the two days as previously ordered. I would be willing to do tiiat in exchange for immediate commitment to jail.”
The district court denied Shelhamer’s request to stay the sentence and she then opted to serve the 2 days in jail. This appeal followed.
We apply a dual standard of review to any appeal from a finding of contempt of court. We review de novo the trial court’s determination that tire alleged conduct constitutes contempt, while we review the impositions of sanctions for abuse of discretion. In re M.R., 272 Kan. 1335, 1342, 38 P.3d 694 (2002). When a judicial action is premised on an error of law it is by definition an abuse of discretion. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). Shelhamer has not challenged the district court’s ruling that her conduct constituted contempt. She asks only that her sentence be set aside. As such, the only question before us is whether the district court abused its discretion in sanctioning Shelhamer.
“Courts exercise contempt powers in order to maintain decorum in all court proceedings, punish those who show disrespect for the court or its orders, and enforce its judgments.” In re J.T.R., 47 Kan. App. 2d 91, 94, 271 P.3d 1262 (2012). Kansas statutes create two classes of contempt, direct and indirect. Direct contempt is committed in tire presence of the judge, while all other forms of contempt are denominated as indirect contempt. See K.S.A. 20-1202. In this case Shelhamer’s contempt was indirect as it occurred outside the presence of the judge.
Contempt cases are further delineated as either criminal or civil by the character of the sanction imposed. “Civil contempt proceedings are remedial in nature and designed to advance the private right of a litigant won by court order. Any civil contempt penalty is intended to be coercive, and relief can be achieved only by compliance with the order.” In re J.T.R., 47 Kan. App. 2d at 95. The parties and the district court all agree that Shelhamer was sentenced in a proceeding for indirect civil contempt. In such cases, the sanction is intended to be remedial and must furnish the contemnor the “keys to the jailhouse door” and allow her to purge her contempt at any time by complying with the order in question.
On the other hand, sanctions for criminal contempt are intended to punish the contemnor for disobedience or disrespect to the court. Conduct that may give rise to sanction for criminal contempt is “ ' “directed against the dignity and authority of a court or a judge acting judicially, with punitive judgment to be imposed in vindication; its essence is that the conduct obstructs or tends to obstruct the administration of justice.” ’ ” State v. Jenkins, 263 Kan. 351, 358, 950 P.2d 1338 (1997).
These subcategories of contempt are not mutually exclusive. Criminal or civil contempt can arise both in and out of the presence of the judge. Likewise, each can arise in the context of either an underlying criminal or civil action. Importantly, however, when a court undertakes to punish in criminal contempt, “tire due process rights that attend any criminal charge should apply.” In re J.T.R., 47 Kan. App. 2d at 101. These include the rights to notice; to court-appointed counsel if indigent; to trial; to confront witnesses; and to invoke the privilege against self-incrimination.
In Goetz v. Goetz, 181 Kan. 128, 138, 309 P.2d 655 (1957), our Supreme Court set down the fundamental principle which guides our review of Shelhamer’s sentence:
“ ‘If the sentence is limited to imprisonment for a definite period, the defendant is furnished no key, and he cannot shorten tire term by promising not to repeat the offense. .Such imprisonment operates, not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience.’ ’’
In other words, a “punitive jail sentence as punishment for violation of [a court order] is available only for criminal contempt, not for indirect civil contempt.” In re J.T.R., 47 Kan. App. 2d at 98.
Here, Shelhamer'® sentence was clearly punitive as it was for a definitive period of time, Shelhamer’s lawyer specifically asked the district court how Shelhamer could avoid serving jail time and was told, essentially, that Shelhamer could not avoid jail time. The district court’s intent was not to coerce but to punish. It makes no difference that the district court provided Shelhamer with the choice between two sentences, each of which included a determinate time in jail. Shelhamer was never given tire keys to the jailhouse door.
Kansas appellate courts have repeatedly reversed such punitive sentences when imposed in the context of civil contempt proceedings, See, e.g., Goetz v. Goetz, 181 Kan. 128 (90-day jail sentence for failing to turn custody of children over to the father erroneous because there was no availability to purge the contempt); In re J.T.R., 47 Kan. App. 2d 91 (5-day jail sentence for disobeying a no-contact court order was punitive as there was no way to purge the contempt); In re Conservatorship of McRoy, 19 Kan. App. 2d 31, 861 P.2d 1378 (1993) (30-day jail sentence for failing to disclose conservator accounting punitive due to lack of opportunity to purge contempt); and Carlson v. Carlson, 8 Kan. App. 2d 564, 661 P.2d 833 (1983) (jail sentence of 48 hours to be served on 4 specific days for 12 hours per day for interference of ex-spouse’s visitation rights was wholly punitive).
We appreciate the district court’s frustration in this case. Likewise, we are mindful of the district court’s statement that in some cases it can be “extremely difficult to get the parties ... to comply with the [court’s] orders” and that it is “vitally important that trial court judges have the ability to enforce their orders.” This cannot, however, override the settled law of civil contempt.
Where a district court simply wants to punish a contemnor, the proper remedy is a proceeding in criminal contempt. The district court’s sentence of a determinate period for indirect civil contempt in this case was premised on an error of law and was, therefore, an abuse of discretion and must be set aside. Moreover, the record reflects that this case has become emotionally charged and frustrating to the district court. In the best interests of all the parties, we direct that on remand, all further proceedings be reassigned to a different district court judge.
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Pierron, J.:
Matthew J. Marion entered a plea of nolo conten-dere to one count of indecent liberties with a child, a severity level 5 person felony. The district court sentenced him to 34 months’ imprisonment and a lifetime term of postrelease supervision. Marion appeals, arguing his sentence of lifetime postrelease supervision is grossly disproportionate and therefore violates the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. We affirm.
On February 12, 2012, 25-year-old Marion traveled from Georgia to Salina to visit his cousin, 14-yeár-old P.M. Marion and P.M. had met approximately 1 year before at their grandmother’s birthday party. Since that time, the two had kept in touch through telephone conversations and Facebook. After a few months, their conversations grew sexual in nature. Marion learned their grandmother was ill and decided to visit P.M. under the pretense of visiting their ailing grandmother. P.M.’s parents allowed Marion to stay at the family’s home in the bedroom next to P.M.’s bedroom.
On the evening of February 12, the first night of Marion’s stay, he asked P.M. to come to his bedroom after everyone else went to bed. P.M. came to his room as requested. Marion and P.M. talked for awhile and then began to kiss. After approximately 5 minutes, P.M. left and went back to her own bedroom. On February 14, shortly after midnight, P.M. once again went to Marion’s bedroom after everyone else in the house was asleep. Marion and P.M. immediately started kissing. Marion began touching P.M.’s breasts under her clothing. About 20 minutes after P.M. entered the bedroom, the two engaged in sexual intercourse, which P.M. later described to police as Marion inserting his penis into her vagina. Marion was on top of P.M. as she lay on her back. P.M. estimated that the incident lasted 30 minutes.
P.M. later told a friend about the incident, but P.M. said that she and Marion had only kissed. The friend told her church pastor, and the pastor in turn contacted P.M.’s mother. P.M.’s mother confronted P.M. -and Marion. P.M. eventually admitted to her mother that she liad sexual' intercourse with Marion. Marion left the family’s residence before the incident was reported to police. P.M. underwent a sexual assault examination, which indicated bruising to her vaginal area and a tear to her hymen. The sexual assault nurse examiner concluded that it appeared P.M. had engaged in sexual intercourse.
On March 30, 2012, Marion was charged with two counts of indecent liberties with a child, a severity level 5 person felony, and one count of aggravated indecent liberties with a child, a severity level 3 person felony. On October 8, 2012, Marion pled nolo con-tendere to one count of indecent liberties with a child. The State dismissed the remaining counts, and the parties agreed to jointly recommend that Marion serve a sentence of 34 months’ imprisonment. The district court filed an order accepting the plea on October 9, 2012.
Prior to sentencing, Marion filed a motion challenging lifetime postrelease supervision as cruel and unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution. The district court heard arguments on the motion on December 19, 2012, at Marion’s sentencing hearing. The court considered and made detailed findings under the three factors outlined in State v. Freeman, 223 Kan. 362, 367, 574 P.2d 950 (1978). The court ultimately denied Marion’s motion and sentenced him to 34 months’ imprisonment and lifetime postrelease supervision.
Marion timely appeals the sentence imposed by the district court.
Marion first argues his sentence of lifetime postrelease supervision is grossly disproportionate and therefore violates the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution. The State responds Marion’s sentence does not violate the constitutional prohibition of cruel and unusual punishment and should be upheld.
The Claim under the Kansas Constitution
Marion contends an analysis of the factors in Freeman reveals his lifetime term of postrelease supervision constitutes cruel and unusual punishment. He asserts that the nature of the offense and the character of the offender are not such that would warrant lifetime postrelease supervision. Marion concludes his sentence is grossly disproportionate and must be vacated. The State disagrees, arguing that an analysis of the Freeman factors — individually or combined — demonstrates that lifetime postrelease supervision is not cruel or unusual punishment.
K.S.A. 2013 Supp. 22-3717(d)(l)(G) states that “persons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person’s natural life.” K.S.A. 2013 Supp. 22-3717(d)(5)(B) establishes that indecent liberties with a child, Marion’s crime of conviction, is a sexually violent crime. While on lifetime postrelease supervision, an offender must comply with the conditions of his or her release. If a violation results from a new conviction, the offender may be required to serve the entire remaining balance of postrelease supervision. K.S.A. 2013 Supp. 75-5217(c)-(d). Thus, an offender subject to lifetime postrelease supervision could be confined for the rest of his or her life without the possibility for release if supervision is revoked as a result of a new conviction. This is true even if that conviction does not result in the imposition of a new term of imprisonment. K.S.A. 2013 Supp. 75-5217(c). When determining whether a sentence is cruel or unusual under § 9 of the Kansas Constitution Bill of Rights, a district court makes both legal and factual determinations. An appellate court applies a bifurcated standard of review. All the evidence is reviewed, but not reweighed, to determine whether it is sufficient to support tire district court’s factual findings, but the legal conclusions that tire district court draws from those facts are reviewed de novo. State v. Ross, 295 Kan. 424, 425-26, 284 P.3d 309 (2012). “A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, tire court has the authority and the duty to do so. [Citations omitted.]” 295 Kan. at 426.
Section 9 of the Kansas Constitution Bill of Rights states: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel or unusual punishment inflicted.” In Freeman, 223 Kan. at 367, our Supreme Court interpreted § 9 to prohibit punishment “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity. [Citations omitted.]” The Freeman court established three factors to weigh when assessing proportionality challenges under § 9:
“(1) The nature of die offense and the character of die offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiiy are die facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely tiian the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” 223 Kan. at 367.
Our Supreme Court recently affirmed that the Freeman factors constitute the appropriate test for analyzing length-of-sentence cruel or unusual punishment challenges brought under § 9. See State v. ToahtyHarvey, 297 Kan. 101, 106, 298 P.3d 338 (2013). No one factor controls, although one factor may weigh so heavily that it directs the final outcome. 297 Kan. at 106-07.
The First Freeman Factor
Under the first Freeman factor, a court should consider the nature of the offense and the character of the offender, giving particular regard to the degree of danger to society. 223 Kan. at 367. “[Rjelevant to this inquiry are the facts of die crime, the violent or nonviolent nature of the offense, the extent of culpability for the injuiy resulting, and' the penological purposes of the prescribed punishment.” 223 Kan. at 367.
Here, the district court made the following factual findings: Marion was 24 years old and P.M. was 13 years old when they first met. He was invited to P.M.’s home by her parents, and he abused their trust. Marion manipulated P.M. for the purpose of sexually violating her despite their familial relationship. He made plans to travel to Kansas under a false pretense for the purpose of having sex with P.M. Marion engaged in sexual intercourse with P.M. when she was 14 years old. She suffered physical injuries as well as significant psychological and emotional injuries. Marion was solely responsible for the damage done to P.M. Marion’s crimes were calculated and violent — both physically and emotionally.
Regarding the penological purposes of lifetime postrelease supervision, the district court found there was a public safety interest in requiring a longer term of supervision for individuals who violate persons whose age renders them unable to consent. The court stated lifetime postrelease supervision serves the purpose of incapacitation because it puts offenders under the supervision of trained individuals who can take swift action if they detect problems that could result in harm to other victims. The court further stated such supervision is designed to deter future crimes — particularly in the case of sex offenders because diere is a high rate of recidivism.
On appeal, Marion does not challenge the district court’s factual findings. He simply argues the nature of the offense and the character of the offender in his case do not merit a lifetime period of postrelease supervision. Regarding the nature of the offense, Marion contends the acts that occurred between him and P.M. were consensual and not violent in nature. Regarding the character of the offender, Marion notes his criminal history score of I, a lack of any prior sex crimes in his history, and the fact there is only one victim in the present case. He offers all three facts as evidence he is not a career criminal and does not present a large degree of danger to society. Marion also asserts he was young at the time of die offense, as well as “ ‘immature’ ” and “ ‘unsophisticated.’ ”
The district court acknowledged Marion’s statement at his sentencing hearing that he was reforming his behavior and now on the right path in life. However, the court concluded: “Mr. Marion is solely responsible for the resulting physical and emotional and psychological damage that he did to this 14 year old girl. The Court views these crimes as calculated and a base violation of a child.” There is substantial competent evidence to support the court’s findings on the first Freeman factor, and considerations under the first factor support the imposition of lifetime postrelease supervision.
The Second Freeman Factor
The second Freeman factor requires “[a] comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses.” 223 Kan. at 367. If more serious crimes are punished less severely, the challenged penalty is to that extent suspect. 223 Kan. at 367. Marion argued in his motion concerning post-release supervision that there are many more serious offenses— including second-degree murder — which Kansas punishes with shorter terms of postrelease supervision than that imposed in the present case.
The district court rejected Marion’s argument, finding:
‘‘[T]he length of sentence imposed is generally a matter of legislative prerogative and the legislature in sexually violent cases has determined that sex crimes are among the most serious. Ultimately tills Court finds that the proportionality of a sentence cannot be based solely on the comparison of the postrelease supervision terms. . . . The defendant in this case will serve a majority of his sentence in a very — a less restrictive environment than someone who’s convicted of a crime as cited by the defense.”
On appeal, Marion contends that under the guidelines of lifetime postrelease supervision, future felony or misdemeanor convictions could result in him serving the remainder of his life in prison. However, our Supreme Court has previously rejected attempts to focus on the potential consequences of violating lifetime postrelease supervision, finding that such consequences are a separate issue from the question of disproportionality. See State v. Mossman, 294 Kan. 901, 914-17, 281 P.3d 153 (2012).
Marion further argues he would have received a less severe term of postrelease supervision had he committed “the more severe crime of intentional second-degree murder.” He also cites the United States Supreme Court’s decision in Coker v. Georgia, 433 U.S. 584, 598, 97 S. Ct. 2861, 53 L. Ed. 2d 982 (1977), as recognizing that even forcible child rape is a less serious crime than murder. Marion asserts that if rape is a less serious crime than murder, then it follows that indecent liberties with a child is also a less serious crime than murder. He concludes that under Freeman, the challenged penalty is to that extent suspect.
Marion lists five offenses he asserts are more serious than his own crime of conviction that carry 36-month terms of postrelease supervision: second-degree murder, aggravated kidnapping, aggravated human trafficking, electronic solicitation of a child, and furtherance of terrorism or illegal use of weapons of mass destruction. See K.S.A. 2013 Supp. 21-5403(b) (second-degree murder is a severity level 1 or 2 person felony); K.S.A. 2013 Supp. 21-5408(c)(2) (aggravated kidnapping is a severity level 1 person felony); K.S.A. 2013 Supp. 21-5426(c)(2) (aggravated human trafficking is a severity level 1 person felony); K.S.A. 2013 Supp. 21-5509(b)(l) and (2) (electronic solicitation of a child is a severity level 1 or 3 person felony); and K.S.A. 2013 Supp. 21-5423(e) (furtherance of terrorism or illegal use of weapons of mass destruction is a severity level 1 person felony).
Our Supreme Court, however, has rejected attempts under the second Freeman factor to focus on the length of postrelease supervision and instead has looked to the total length of the sentence, including actual incarceration. Mossman, 294 Kan. at 912-13; see State v. Cameron, 294 Kan. 884, 892-93, 281 P.3d 143 (2012). Furthermore, our Supreme Court has explicitly compared a sentence for a sexually violent crime, including lifetime postrelease supervision, to the sentence for second-degree murder, including the 36-month postrelease supervision term, and held:
“[W]hile a defendant subject to lifetime postrelease supervision is under a longer cumulative sentence than a defendant sentenced for second-degree murder, a ‘sentence to lifetime postrelease supervision [for a sexually violent offense] is not grossly disproportionate in relation to the sentence applicable to second-degree murder in Kansas when we consider the penological purposes, the seriousness of the crime, and tire other concerns discussed in relation to the first Freeman factor/ [Citation omitted.]” Cameron, 294 Kan. at 893.
Based on our Supreme Court’s analyses in Mossman and Cameron, we find the imposition of lifetime postrelease supervision for the crime of indecent liberties with a child, a sexually violent offense, is not grossly disproportionate to the sentence imposed for other, “more serious” offenses in Kansas. Accordingly, considera tions under the second Freeman factor support the imposition of lifetime postrelease supervision.
The Third Freeman Factor
Finally, under the third Freeman factor, courts compare the punishment imposed with punishments that other jurisdictions impose for the same offense. 223 Kan. at 367. In his motion concerning postrelease supervision, Marion compared Kansas’ imposition of lifetime postrelease supervision to sentencing schemes used in other states, including some that impose shorter periods of postrelease supervision and some that do not necessarily impose a lifetime term of imprisonment in response to violations. The district court acknowledged the broad range of punishments imposed by other jurisdictions, concluding: “I am not aware, as noted in Mossman, of any other jurisdiction that has found lifetime post-release for a violent sex offender to be cruel and unusual punishment.”
On appeal, Marion simply points out that only five states impose lifetime postrelease supervision for the offense of indecent liberties with a child. He adds that thirteen states impose mandatory lifetime postrelease supervision, but they do not apply it to this class of offenses. Our Supreme Court addressed this argument in Moss-man, finding:
“[L]ess than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mechanism for termination of the postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas’ requirement. Nevertheless, Kansas is not alone in imposing mandatory lifetime postrelease supervision for crimes such as [aggravated indecent liberties with a child], and we are not aware of any court that has found lifetime postrelease supervision of a violent sex offender to be cruel and unusual punishment.” 294 Kan. at 920.
Our Supreme Court followed the same rationale in Cameron, where the offense of conviction was aggravated indecent solicitation of a child. 294 Kan. at 894-95. The court has since reaffirmed its analysis on this factor, declining to further address it where the appellant did not offer new arguments to invite reconsideration. Ross, 295 Kan. at 428. Accordingly, considerations under the third Freeman factor support the imposition of lifetime postrelease supervision.
In summary, the district court’s imposition of lifetime post-release supervision was not so disproportionate to Marion’s conviction “that it shocks the conscience and offends fundamental notions of human dignity.” See Freeman, 223 Kan. at 367. Thus, Marion’s sentence of lifetime postrelease supervision does not constitute cruel or unusual punishment in violation of § 9 of the Kansas Constitution Bill of Rights.
The Claim under the Federal Constitution
Marion also argues the imposition of lifetime postrelease supervision is cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution. The State replies that Marion’s case is not the rare case where the gravity of the offense and the harshness of the penalty lead to an inference of gross disproportionality.
The Eighth Amendment provides: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Marion argues that lifetime postrelease supervision without the possibility of release or discharge is not graduated or proportioned to his conviction. The United States Supreme Court has found: “The concept of proportionality is central to the Eighth Amendment. Embodied in the Constitution’s ban on cruel and unusual punishments is the precept of justice that punishment for crime should be graduated and proportioned to [the] offense.’ [Citation omitted.]” Graham v. Florida, 560 U.S. 48, 59, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010).
“There are two ways to succeed on a proportionality claim. The first challenges the sentence as disproportionate 'given all the circumstances in a particular case.’ ” United States v. Williams, 636 F.3d 1229, 1232 (9th Cir. 2011) (quoting Graham, 560 U.S. at 59). “The second way to mount a proportionality challenge is to show that an entire class of sentences is unconstitutionally disproportionate given the severity of the sentence, the gravity of the crime, and the type of offender.” 636 F.3d at 1233.
Case-Specific Challenge
Our Supreme Court looked to the United States Supreme Court’s decision in Graham in laying the framework for analyzing Eighth Amendment cruel and unusual punishment claims:
“In conducting an Eighth Amendment analysis to determine whether a sentence for a term of years is grossly disproportionate for a particular defendant’s crime, a court must begin by comparing the gravity of the offense and the severity of the sentence. This analysis can consider a particular offender’s mental state and motive in committing foe crime, the actual harm caused to foe victim or to society by foe offender’s conduct, any prior criminal history, and a particular offender’s propensity for violence. In the rare case in which this threshold comparison leads to an inference of gross disproportionality, the court should then compare foe defendant’s sentence with the sentences received by other offenders in foe same jurisdiction and with foe sentences imposed for foe same crime in other jurisdictions. If this comparative analysis validates an initial judgment that the sentence is grossly disproportionate, foe sentence is cruel and unusual.” State v. Gomez, 290 Kan. 858, Syl. ¶ 5, 235 P.3d 1203 (2010).
Marion refers to his analysis of the Freeman factors, concluding that under the facts of his case, the severity of a lifetime term of postrelease supervision is not proportionate to the gravity of his offense. Similarly, the district court incorporated by reference its analysis of the Freeman factors. It concluded:
“The Court finds that usually foe gross disproportionate analysis is for a term of years and comparing foe gravity of the offense and the severity of foe sentence, based on the facts I just enumerated, I do not find that is grossly disproportionate. The Court has taken into consideration his mental state, his motive in committing the crime. The Court views that as one purely geared toward self-gratification, self-motivation of a 24 or 25 year old essentially using and violating what was a 13 and became a 14 year old during foe actual commission of foe crime.
“I’ve considered foe actual harm caused to this individual victim as I announced previously and as stated in her documents and the State’s motion and foe harm to society that it will see visited upon it because this does not go away in her lifetime. She will have those violations for her entire life, as will her family, and it will go on to be an issue that she will deal with emotionally and psychologically.”
There is substantial competent evidence to support the district court’s finding that the gravity of Marion’s offense and severity of his sentence do not result in an inference of gross disproportion-ality. Because Marion fails to satisfy tire threshold test for determining whether a sentence is cruel and unusual punishment, fur ther consideration of Ins case-specific Eighth Amendment claim is unnecessary.
Categorical Challenge
In a categorical challenge brought under the Eighth Amendment, a defendant must show “that an entire class of sentences is unconstitutionally disproportionate given the severity of the sentence, the gravity of the crime, and the type of offender.” Williams, 636 F.3d at 1233. When considering categorical challenges to classes of sentences, we must first consider “ ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue.” Graham, 560 U.S. at 61.
The district court rejected Marion’s categorical challenge, stating it was unaware of any similar cases — either within Kansas or in other states — finding it is unconstitutional to sentence to lifetime postrelease supervision persons without any prior convictions who commit sex offenses against children. On appeal, Marion argues there is a national consensus against lifetime postrelease supervision for the nature of his offense and his class of offenders. He reiterates that only five states impose a mandatory lifetime term of postrelease supervision for his class of offenders.
In Mossman, our Supreme Court rejected a categorical argument raised by a defendant convicted of aggravated indecent liberties with a child. The Mossman court relied on Williams, in which the Ninth Circuit Court of Appeals considered whether lifetime supervised release for child pornography was cruel and unusual punishment. In rejecting the constitutional challenge, tire court stated:
“ ‘Here, “objective indicia” suggest that society is comfortable with lifetime sentences of supervised release for sex offenders, as such sentences are common. According to the United States Sentencing Commission, in the last five years, federal courts have sentenced 1875 defendants convicted of child pornography and child prostitution crimes to lifetime supervised release. See U.S. Sentencing Comm’n, Federal Offenders Sentenced to Supervised Release 58-59 (July 2010), www.ussc.gov/general/20100722_Supervised-Release.pdf. Byway of comparison, in banning the sentence of life without parole for juvenile nonhomicide offenders, the Supreme Court noted that there were then just 123 people in the [country] serving such sentences. See Graham, 130 S. Ct. at 2024. Further, the percentage of federal sex offenders receiving life terms of supervised release is increasing, climbing from 9.3 percent in 2005, to 20.5 percent in 2009. [Citation omitted.]’ ” Mossman, 294 Kan. at 929-30 (quoting Williams, 636 F.3d at 1233-34).
Furthermore, as our Supreme Court has previously stated in Cameron and in Mossman, several other states have adopted lifetime postrelease supervision for many, if not all, sexually violent crimes. Based on these developments, the court concluded that the numbers cited in Williams do not reflect the total number of sex offenders subject to lifetime postrelease supervision. Cameron, 294 Kan. at 897; Mossman, 294 Kan. at 930.
Next, guided by “ ‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ ” this court must determine in the exercise of its own independent judgment whether the punishment in question violates the United States Constitution. Graham, 560 U.S. at 61. In this inquiry, the court should consider whether the challenged sentencing practice serves the legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation. 560 U.S. at 71.
Marion claims his sentence does not serve any of the penological goals addressed by Graham. He contends that lifetime postrelease supervision does not serve the goal of retribution because it is not related to an offender’s personal level of culpability. He argues that it does not meet the goal of deterrence because an offender’s criminal histoiy already serves to deter him or her from committing any additional crimes. Similarly, Marion asserts that the punishment does not further the goal of incapacitation because it is imposed on persons convicted of numerous sexual offenses without any determination of whether an offender has a high risk of reoffending. Finally, he concludes that lifetime postrelease supervision does not meet tire goal of rehabilitation because, regardless of an offender’s age and no matter how much an offender improves his or her moral character, the term of supervision is for the duration of the offender’s natural life.
In Williams, the Ninth Circuit Court of Appeals specifically considered whether lifetime postrelease supervision served legitimate penological goals. It stated that the goals of rehabilitation and incapacitation “are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again.” The court also noted: “Supervised release can further the end of rehabilitating sex offenders. . . . Re-latedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm to innocent children.” 636 F.3d at 1234.
In Mossman, our Supreme Court found that the Ninth Circuit’s conclusion applied equally to persons sentenced in Kansas to post-release supervision for the crime of aggravated indecent liberties with a child. Mossman, 294 Kan. at 930. Though the defendant in Mossman was a first-time sex offender — like Marion — the court found the penological goals of deterrence, incapacitation, and rehabilitation were met regardless of whether the offender committed one or many offenses. Accordingly, the Mossman court held a sentence to lifetime postrelease supervision was not categorically disproportionate. 294 Kan. at 930.
We must follow the guidance of our Supreme Court and consider the position taken by the Ninth Circuit Court of Appeals and find that Marion’s sentence of lifetime postrelease supervision for his conviction of indecent liberties with a child is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eighth Amendment to the United States Constitution.
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Bruns, J.:
This is an action involving the title to real property leased by MFA Enterprises (“MFA”) to Donald Delange. MFA filed a forcible detainer petition seeking possession of the real property and damages based on Delange’s default under the terms of the lease agreement. In response, Delange asserted that he adversely possessed the real properly. Ultimately, the district court held a bench trial and granted judgment as a matter of law to MFA. On appeal, Delange contends that the district court procedurally erred in granting judgment in favor of MFA. Delange further contends that the district court erred in rejecting his claim of adverse possession. Because we find that Delange remained subject to the terms of the lease agreement, we affirm the district court’s decision.
Facts
The material facts in this case are undisputed. On August 12, 1976, The Missouri-Kansas-Texas Railroad Company (“MKT”), as the original lessor, and Roger Westhoff, as the original lessee, entered into an “Industrial Lease” for a small tract of land adjacent to railroad tracks in Hepler, Kansas. Westhoff used the real property to operate the Hepler Grain Company. The lease agreement required the lessee to make annual payments in advance, but it did not contain an expiration date. Rather, it provided that either party could terminate the agreement by serving 30 days’ written notice on the other parly.
In addition, the lease agreement provided:
“In case Lessee shall make default in the payment of any rental as and when due by the terms of this lease, . . . Lessor may . . . declare this lease at an end and enter into and ... possess said leased premises ... and may remove therefrom Lessee and all persons occupying the same or any part thereof, using such force as may be necessary for that purpose.” (Emphasis added.)
In 1977, Westhoff filed for bankruptcy, and Delange purchased the lease from the bankruptcy trustee. On September 19, 1977, the bankruptcy trustee assigned the lease to Delange. For several years, Delange — doing business as Hepler Grain Company — used the buildings, grain elevator, and silos located on the property for cleaning seed, mixing feed, and storing grain. In recent years, however, the grain operations have declined significantly. Delange’s son — who is not a party to the lease agreement or to this action— continues to use the real property to mix feed, fix tires, and perform maintenance on vehicles.
On July 3, 1980, MKT and Delange executed a supplement to the lease agreement increasing the lease payment. The parties then amended the lease agreement again on March 30,1983, to increase the size of the land being leased. In 1987, Union Pacific Railroad Company (Union Pacific), the successor in interest to MKT, stopped running its trains through Hepler. About that time, De-lange and his son became concerned about the property description in the lease agreement.
Evidently, Delange’s son told Union Pacific that his father was going to stop paying rent unless tire lease was rewritten to reflect what the Delanges believed to be the correct real estate description. Delange has not paid the annual rent due under the terms of the lease agreement since January 1, 1993. Although a collection agency contacted the Delanges in an unsuccessful attempt to setde the past due rent, neither party gave the other written notice to terminate the lease.
On April 10,1997, Union Pacific sent a representative to inquire whether the Delanges wanted to purchase the real property. At that time, Delange’s son offered to pay $2,200 for the land, but they never closed the deal. Thereafter, Delange continued to possess and use the real property without-paying rent.
On May 24, 2012, Union Pacific sold the real property and assigned its rights under the lease agreement to MFA. A week later, MFA sent a letter to Delange notifying him that it was terminating the lease agreement due to his failure to pay rent, and on August 6, 2012, MFA filed a petition for forcible detainer against Delange, seeking possession of the real property and damages for the past due rent. In his answer to MFA’s petition, Delange asserted that he had gained title of the real properly by adverse possession.
The district court held a bench trial on November 20, 2013. At the trial, the parties stipulated that the titled owner of the land subject to the lease agreement is MFA. The parties also agreed that Delange has the burden of proof to establish adverse possession. In an attempt to meet his burden, both Delange and his son testified that they continued to use the land even though they had not paid rent since 1993. Moreover, MFA called tire Crawford County Treasurer, who testified that Delange had continued to pay taxes on the improvements to the land — as required by Article II, paragraph 2 of the lease agreement — while MFA’s predecessors in interest continued to pay the taxes on the land.
At the conclusion of the evidence, MFA dropped its claim for damages and moved for a directed verdict on Delange’s adverse possession defense. In support, MFA’s attorney argued that De-lange had not proven that he held the real property adversely because he had continued to possess the land under the terms of the lease even though he was not paying rent. MFA’s attorney also argued that Delange was not in exclusive possession of the property because he shared it with another permissive user — his adult son— on a regular basis. In response, Delange’s attorney argued that Union Pacific had abandoned the lease agreement and that his client continued to adversely possess the real property for more than 15 years.
After considering the evidence presented, the district court found that Delange had failed to meet his burden of proof that he adversely possessed the real property and that MFA was entitled to judgment as a matter of law. Specifically, the district court found that Delange; remained in possession of the real property pursuant to the terms of the lease agreement and not adversely to MFA. The district court also found that Delange was a holdover tenant and, as such, could not gain title to the land by adverse possession. Thus, the district court ordered that possession of the real property be restored to MFA, and a Journal Entry was entered on December 19, 2013.
Analysis
On appeal, Delange raises three issues. First, Delange contends that the district court erred in granting a directed verdict in favor of MFA. Second, Delange contends that the lease agreement between the parties did not prevent him from obtaining the real property by adverse possession. Third, Delange contends that the district court erred by failing to find that he had obtained ownership of the real property by adverse possession.
Procedure Utilized by District Court
The district court granted MFA’s motion for directed verdict at trial. Although we recognize that it is not uncommon for attorneys and judges to continue to use the term “directed verdict,” this procedural devise was eliminated by the 1997 Kansas Legislature. L. 1997, ch. 173, sec. 26. Since 1997, the analogous motion in jury trials is a motion for judgment as amatter oflaw pursuant to K.S.A. 2013 Supp. 60-250, and the analogous motion in nonjury trials is a motion for judgment on partial findings pursuant to K.S.A. 2013 Supp. 60-252(c). See 4 Gard and Casad Kansas C. Civ. Proc. 5th Annot. § 60-250 (2012); 4 Gard and Casad Kansas C. Civ. Proc. 5th Annot. § 60-252 (2012). Thus, because the present case involved a nonjury trial, we must determine whether the district court’s judgment was appropriate under the terms of K.S.A. 2013 Supp. 60-252(c).
K.S.A. 2013 Supp. 60-252(c) provides:
“Judgment on partial findings. If a party has been fully heard on an issue during a nonjury trial and tire court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions oflaw . . . .” (Emphasis added.),.
In Lyons v. Holder, 38 Kan. App. 2d 131, 135, 163 P.3d 343 (2007), a panel of this court found that in ruling on a judgment on partial findings, “the district judge has the power to weigh and evaluate the evidence in the same manner as if he or she were adjudicating the case on the merits and making findings of fact at the conclusion of the entire case.” Accordingly, we must look to see if the district court’s findings were supported by substantial competent evidence. Next, we must determine whether judgment as a matter of law was proper. 38 Kan. App. 2d at 135.
Effect of Lease Agreement
Delange next contends that the parties abandoned the Industrial Lease thereby permitting him to adversely hold the property.
“The abandonment or repudiation of a [written agreement] under Kansas law is placing oneself, by voluntary act, in a position so that he is unable to fulfill his part of the agreement, which may be treated as an anticipatory breach, with the result that the other party may thereupon rescind it. See Jinnings v. Amend, 101 Kan. 130, 165 P. 845 (1917).” Wylie v. Marley Co., 891 F.2d 1463, 1471 (10th Cir. 1989).
In other words, a written agreement “ceases to be in force when it is rescinded by mutual consent, and the courts will treat a contract as abandoned when one party acquiesces to the acts of another party that are inconsistent with the continued existence of a contract.” U.S.D. No. 446 v. Sandoval, 295 Kan. 278, Syl. ¶ 6, 286 P.3d 542 (2012).
Here, it is undisputed that the lease agreement did not contain an expiration date. Rather, either party had the right to terminate the lease by giving 30 days’ written notice to the other party. But neither party chose to do so until MFA sent a written notice of termination to Delange on May 31, 2012. As indicated above, Article II, paragraph 2 of the lease required that Delange pay taxes on tire land’s improvements, which he dutifully did. So he cannot claim that the parties abandoned the lease when he continued to— at least in part — perform the contract.
Although Delange failed to pay rent after January 1, 1993, neither MFA nor its predecessors were required to terminate the lease agreement. Instead, the lease’s plain language simply gave MFA and its predecessors the option to terminate tire lease upon default of payment. Moreover, possession of land pursuant to a lease is, by its definition, not hostile because the true owner is permitting the lessee to be on the property. Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 679, 157 P.2d 805 (1945).
Even if the lease agreement had terminated, “[t]he general rule is that when a tenant holds over his term with tire consent of the landlord, express or implied, the law implies a continuation of the original tenancy upon the same term and conditions.” Becker v. McFadden, 221 Kan. 552, 555, 561 P.2d 416 (1977); see Thomas v. Dudrey, 208 Kan. 684, 494 P.2d 1039 (1972). Accordingly, we find that Delange remained subject to the terms of the lease either because the lease continued in existence until MFA gave 30 days’ written notice or because Delange was a holdover tenant.
Adverse Possession
Under Kansas law, adverse possession is governed by K.S.A. 60-503, which provides:
“No action shall be maintained against any person for tire recovery of real property who has been in open, exclusive and continuous possession of such real property, either under a claim knowingly adverse or under a belief of ownership, for a period of fifteen (15) years.”
The legal theory of adverse possession encourages land owners to promptly eject trespassers. “[B]y failing to protect his or her rights of ownership, a landowner acquiesces in the transfer of ownership.” Crone v. Nuss, 46 Kan. App. 2d 436, 437, 263 P.3d 809 (2011). The Kansas statute differs from common law to the extent that a claimant can establish adverse possession by a good-faith belief of ownership rather than only by hostile possession. See Crone, 46 Kan. App. 2d at 438. In this case, however, Delange only asserts that his possession of the land was knowingly adverse to MFA.
Ultimately, whether a party has acquired land by adverse possession is a question of fact, and the party asserting title must establish each element by clear and convincing evidence. See Wright v. Sourk, 45 Kan. App. 2d 860, 866, 258 P.3d 981 (2011). Here, after hearing the evidence presented at the bench trial, the district court concluded that Delange had failed to meet his burden of proof. A finding that a party did not satisfy its burden of proof is a negative factual finding. See Hall v. Dillon Companies, Inc., 286 Kan. 777, 781, 189 P.3d 508 (2008).
In reviewing negative findings, we must determine whether the district court arbitrarily disregarded undisputed evidence or relied upon an extrinsic consideration — such as bias, passion, or prejudice-in reaching its decision. See Hamel v. Hamel, 296 Kan. 1060, 1078, 299 P.3d 278 (2013). In addition, when one seeks to obtain title to real property by adverse possession, there is a presumption in favor of the party holding legal title against the claimant so that mere possibilities do not deprive the legal owner of the property. See Stith v. Williams, 227 Kan. 32, 36, 605 P.2d 86 (1980). Absent proof that the district court disregarded undisputed evidence or based its decision on an improper consideration, we will not disturb a holding that a party failed to satisfy its evidentiary burden. See J.A. Tobin Construction Co. v. Williams, 46 Kan. App. 2d 593, 597, 263 P.3d 835 (2011).
As indicated in the previous section, Delange remained subject to the terms of the lease agreement either on its face or as a holdover tenant. As such, Delange was not a trespasser, and his possession was not adverse. In fact, Delange admits that in 1997, his son offered a Union Pacific representative — the predecessor to MFA — $2,200 to purchase the land. Several courts have held that such an offer to purchase land is an admission that the possessor’s interest is inferior to that of the true owner, so the possessor is not adversely holding the property. See Kerlin v. Tensaw Land & Timber Co., 390 So. 2d 616, 619 (Ala. 1980); Combs v. DuBois, 135 Ariz. 465, 469, 662 P.2d 140 (1982); Bowen v. Serksnas, 121 Conn. App. 503, 511-12, 997 A.2d 573 (2010); Cahill v. Morrow, 11 A.3d 82, 91 (R.I. 2011).
Based on our review of the record, we find that there is sufficient evidence to support the district court’s conclusion that Delange failed to meet his burden to establish adverse possession by clear and convincing evidence. We find that there is substantial evidence that Delange was not a trespasser and that neither party terminated the lease until 2012. In the alternative, we find that there is sub stantial evidence that even if the lease agreement had expired, De-lange would have remained subject to its terms as a holdover tenant. Moreover, we find that there is nothing in the record that shows the district court’s decision was based on bias, passion, prejudice, or any other extrinsic consideration.
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Malone, C.J.:
LaDonna R. Johnson (LaDonna) appeals die district court’s ruling on her post-divorce motion to modify child support and to determine an arrearage in child support and spousal maintenance. LaDonna claims the district court erred by ruling that K.S.A. 2013 Supp. 23-3005(b), which governs the extent that a modification of child support can be applied retroactively, prohibits the district court from assessing a sanction under the Kansas Child Support Guidelines (the guidelines) § V.B.2. (2013 Kan. Ct. R. Annot. 144) for a parent’s failure to disclose a material change of circumstances. She also claims the district court erred by ordering that interest would not immediately accrue on a judgment for past due child support and spousal maintenance.
We agree with LaDonna and hold that K.S.A. 2013 Supp. 23-3005(b) does not prohibit the district court from assessing a sanction under Section V.B.2. of the guidelines for a parent’s failure to disclose a material change of circumstances. However, the district court’s decision of whether to assess the sanction is discretionary. Therefore, we remand for further proceedings for the district court to make findings as to whether a sanction should be assessed in this case and, if so, to determine the proper amount of the sanction consistent with the provisions of the guidelines.
Factual and Procedural Background
The facts herein are mostly undisputed but the record for our review is somewhat sketchy. LaDonna and Hal J. Johnson (Hal) were divorced on September 11, 2007. The parties have one minor child, W.A.J., and the decree of divorce designated LaDonna as W.A.J.’s primary residential custodian. The divorce decree ordered Hal to pay $478 per month in child support. Additionally, Hal was ordered to pay spousal maintenance in the amount of $1,180 per month for 72 consecutive months.
Before and after the divorce, Hal was employed at Spirit Aero-systems (Spirit) in Wichita. In Januaiy 2012, Hal resigned his position at Spirit and moved to Seattle, Washington, to accept a position with The Boeing Company (Boeing). Hal’s income increased when he started his new job at Boeing. LaDonna was aware of Hal’s move to Washington, but Hal did not notify her that he had received an increase in income.
On October 3, 2012, LaDonna filed a motion to modify child support due to a material change in circumstances and to determine Hal’s arrearage in child support and spousal maintenance. At the hearing on LaDonna’s motion, her attorney generally addressed the April 2012 amendments to the guidelines adopted by Kansas Supreme, Court Administrative Order No. 261. See Guidelines (2013 Kan. Ct. R. Annot. 123). Counsel argued that the guide lines “beefed . . . up” the duty to disclose a material change in circumstances by specifically allowing district courts to sanction a party for breaching that duty. Counsel noted that one such sanction is for the district court to determine the dollar value of the party’s failure to disclose and assess the amount in addition to the Line F.3 child support amount. See Guidelines § V.B.2. Counsel asked the district court to order that Hal pay the difference between his former and modified child support obligation beginning April 1, 2012 — the date the amendments to the guidelines took effect.
Hal’s attorney also generally referred to the April 2012 amendments to the guidelines. Counsel asserted that Hal was not aware of the amendments and thus it would not be reasonable for the district court to penalize him for breaching the duly to notify of a material change in circumstances. Counsel asserted that the effective date of any increase in child support should be November 1, 2012 — 1 month after LaDonna filed her motion to modify.
On March 18,2013, the district court filed its decision and modified Hal’s child support payment to $1,279 per month. The district court noted that “[although it would have been better had dad notified mom of his increase in compensation, he may not have realized that.” Nevertheless, the district court found that the shortfall between the amount of child support that Hal should have been paying ($1,279 per month) and the amount that he was actually paying ($478 per month) was $801 per month. The district court determined that Hal was in arrears at the rate of $801 per month commencing July 1,2012, rather than November 1,2012. The total child support arrearage was $7,209 (9 months at $801 per month). The district court ordered Hal to pay the child support arrearage at the rate of $801 per month commencing in September 2013, which was the time the district court believed spousal maintenance was scheduled to terminate. The district court ordered that no interest would accrue on the child support arrearage unless Hal was more than 15 days late in making any arrearage payment.
Hal filed a motion to reconsider, which is not included in the record on appeal, and the district court held a hearing on Hal’s motion on April 16, 2013. At the hearing, Hal’s attorney argued that the district court’s March 18, 2013, order modifying child sup port violated K.S.A. 2013 Supp. 23-3005(b). Counsel asserted that pursuant to the statute, the district court could not “impose a retroactive child support obligation” prior to November 1, 2012 — 1 month after LaDonna filed her motion to modify. LaDonna’s attorney disagreed, arguing that the district court correctly found Hal was in arrears for the difference in child support commencing July 1,2012. Counsel argued that the district court had not retroactively modified Hal’s child support obligation but rather had sanctioned Hal for his failure to disclose a material change in circumstances. The district court instructed counsel for both parties to brief the issue.
On June 2, 2013, the district court rendered a second decision setting aside the portion of its March 18, 2013, decision that ordered Hal to pay an arrearage of child support commencing July 1, 2012. After stating that K.S.A. 2013 Supp. 23-3005(b) was controlling, the district court found:
“Absent a provision in the journal entry mandating both parties to inform one another of any changes in their income, to hold that dad’s failure to report his increase in compensation mandates a retroactive increase in child support would compromise and greatly undermine the intent of KSA 23-3005(b). That is the prerogative of the legislature, not the court. As such, fire retroactive child support starts 11-1-12.”
On August 7, 2013, the district court filed an amended order memorializing both the hearing on LaDonna’s motion to modify child support and the hearing on Hal’s motion to reconsider. The district court set Hal’s child support at $1,216 per month but ordered the amount of child support would increase to $1,380 per month commencing on September 1, 2013, pursuant to the child support worksheet. The district court further ordered that “retroactive support” would be imposed starting on November 1, 2012. The district court also found that Hal had accrued an arrearage of $2,180.88 in spousal maintenance as of June 30,2013, and ordered him to begin paying the arrearage on September 1, 2013. Again, tire district court ordered that no interest would accrue on the spousal maintenance arrearage unless Hal was more than 15 days late making any arrearage payment. LaDonna timely appealed the district court’s judgment.
Does K.S.A. 2013 Supe. 23-3005(b) Prohibit the District Court from Assessing a Sanction Under Section V.B.2. of the Guidelines?
LaDonna’s primary argument on appeal is that the district court erred in ruling that K.S.A. 2013 Supp. 23-3005(b) prohibits the district court from assessing a sanction under Section V.B.2. of the guidelines. She contends that the statute governs modification of child support; whereas, the relevant section of the guidelines allows a district court to assess a sanction in response to a party’s breach of the duty to disclose a material change in circumstances. La-Donna asserts that the two provisions cannot be in conflict because it is not possible to determine the dollar value of a party’s failure to disclose until the district court has modified child support. She concludes that the district court should have awarded as a sanction the dollar value of Hal’s failure to disclose an increase in his income and that the sanction should have been calculated beginning April 1, 2012.
Hal responds that the district court’s ruling was not in error. He argues that K.S.A. 2013 Supp. 23-3005(b) clearly states that a court may only make a modification of child support retroactive to a date at least 1 month after the date that the motion to modify was filed. Hal asserts that absent the legislative enactment of a sanction for failure to disclose financial information, our Supreme Court cannot impose such a sanction through the guidelines. Alternatively, even if Section V.B.2. of the guidelines does not conflict with K.S.A. 2013 Supp. 23-3005(b), Hal argues that the district court’s decision of whether to assess the sanction is discretionary. Under the facts of this case, Hal concludes that the district court’s order that he pay the difference between his previous and modified child support obligation beginning November 1, 2012, was not an abuse of discretion.
The parties agree on our standard of review. A district court’s child support award is generally reviewed for abuse of discretion. In re Marriage of Wilson, 43 Kan. App. 2d 258, 259, 223 P.3d 815 (2010). A judicial action constitutes an abuse of discretion if the action (1) is arbitrary, fanciful, or unreasonable;'-(:2) is based on an error of law; or (3) is based on an error of fact. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 935, 296 P.3d 1106 (2013). However, the interpretation and application of the guidelines are questions of law subject to unlimited review. In re Marriage of Matthews, 40 Kan. App. 2d 422, 425, 193 P.3d 466 (2008), rev. denied 288 Kan. 831 (2009). Also, the interpretation of a statute is a question of law over which appellate couxts have unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
The parties’ arguments on appeal center upon the application of and the interaction between K.S.A. 2013 Supp. 23-3005(b) and Section V.B.2. of the guidelines. K.S.A. 2013 Supp. 23-3005(b) states: “The court may make a modification of child suppoii; retroactive to a date at least one month after the date that the motion to modify was filed with the court.” Hal argues that based on this statutory provision, the district court was not permitted to impose a retroactive child support modification prior to November 1, 2012 — 1 month after LaDonna filed her motion to modify.
LaDonna argues that die district court did not retroactively modify Hal’s child support obligation but rather sanctioned Hal for his failure to disclose a material change in circumstances. Since 1994, the guidelines have provided that “[a] parent shall notify the other parent of any change of financial circumstances including, but not necessarily limited to, income, work-related child care costs, and health insurance premiums which, if changed, could constitute a material change of circumstances.” Guidelines § V.B.l. (2013 Kan. Ct. R. Annot. 144); see Kansas Supreme Coui*t Administrative Order No. 90, Guidelines § VI.A. (1994 Kan. Ct. R. Annot. 100). But until the April 2012 amendments, tire guidelines did not provide a sanction for a parent’s failure to disclose a material change of circumstances.
In April 2012, the Kansas Supreme Court adopted Administrative Order No. 261 which added Section V.B.2. of the guidelines to provide, in part, as follows:
“V.B.2. Duty to Notify: In the event of a failure to disclose a material change of circumstances, sticlx as the understatement, overstatement, or concealment of financial informatiQ¿;.as a result of such breach of duty, the court may determine the dollar value of a party’s failure to disclose, and assess the amount in the form of a credit on the Line F.3 child support amount or an amount in addition to Line F.3 child support amount. The court may also adopt other sanctions.” (2013 Kan. Ct. R. Annot. 144).
Here, the district court apparently relied on the new provisions in Section V.B.2. of the guidelines and initially sanctioned Hal for his failure to disclose a material change in circumstances. In its March 18,2013, decision, the district court found that “[t]he shortfall between die amount that should have been paid ($1,279/mo.) and the amount that was paid ($478/mo.) is $801/month.” This calculation is consistent with Section V.B.2. of die guidelines, which states that a court may determine “the dollar value of a party’s failure to disclose” as a sanction. (2013 Kan. Ct. R. Annot. 144). The district court then determined diat Hal was in arrears at the rate of $801 per month commencing July 1, 2012, rather dian November 1, 2012, aldiough the district court did not explain why it chose July 1, 2012, as the effective date of die arrearage. Later, die district court modified its original ruling, finding that K.S.A. 2013 Supp. 23-3005(b) was controlling, and ordered that the “retroactive support” would be imposed starting on November 1,2012.
On appeal, Hal argues that K.S.A. 2013 Supp. 23-3005(b), which governs the extent that a modification of child support can be applied retroactively, preempts the sanction provisions of Section V.B.2. of the guidelines for a parent’s failure to disclose a material change of circumstances. Hal asserts that absent the legislative enactment of a sanction for failure to disclose financial information, our Supreme Court cannot impose such a sanction through the guidelines. We disagree. K.S.A. 2013 Supp. 23-3005(b) provides that a child support modification can only be retroactive to a date at least 1 month after the date that the motion to modify was filed. But when a child support modification is coupled with a parent’s failure to disclose a material change of circumstances, the guidelines now allow the district court to assess a sanction for the parent’s failure to disclose the material change of circumstances. The child support modification authorized by statute typically is based on a change in a parent’s income that constitutes-a material change of circumstances. But the additional sanction under the guidelines is for a parent’s failure to disclose the material change of circumstances in the first place. These are two separate issues; consequently, the sanction provisions of Section V.B.2. of the guidelines do not conflict with the statute.
Hal also argues that even if Section V.B.2. of the guidelines does not conflict with K.S.A. 2013 Supp. 23-3005(b), the district court’s decision of whether to assess the sanction is discretionary. In district court, Hal’s attorney asserted that Hal was not aware of the April 2012 amendments to the guidelines and thus it was not reasonable for the district court to penalize him for breaching the duty to notify of a material change in circumstances. This argument possibly had some impact on tire district court because the court noted in its initial ruling that “[ajlthough it would have been better had dad notified mom of his increase in compensation, he may not have realized that.” But Section V.B.2. of the guidelines provides that “[i]n the event of a failure to disclose a material change of circumstances . . . the court may [assess a sanction].” (2013 Kan. Ct. R. Annot. 144). This language allows the district court to assess a sanction for a parent’s failure to disclose a material change of circumstances, even if the failure to disclose' is not willful.
We conclude that the district court erred when it determined as a matter of law that K.S.A. 2013 Supp. 23-3005(b) prohibits the district court from assessing a sanction under Section V.B.2. of the guidelines for a parent’s failure to disclose a material change of circumstances. But Hal is correct in arguing that the district court’s decision of whether to assess the sanction is discretionary. Section V.B.2. of the guidelines provides that in the event of a failure to disclose a material change of circumstances, “the court may determine the dollar value of a party’s failure to disclose, and assess the amount... in addition to Line F.3 child support amount. The court may also adopt other sanctions.” (Emphasis added.) (2013 Kan. Ct. R. Annot. 144). Therefore, we remand for further proceedings for the district court to make findings as to whether a sanction should be assessed in this case and, if so, to determine the proper amount of the sanction consistent with the provisions of the guidelines.
As a final matter, LaDonna also claims the district court erred by ordering that interest would not immediately accrue on the judgment for past due child support and spousal maintenance. In assessing the judgment for past due child support and spousal maintenance, the district court ordered that no interest would accrue on the judgment unless Hal was more than 15 days late in mairing any arrearage payment. LaDonna argues that the district court’s order on postjudgment interest violates the plain language of K.S.A. 16-204(d).
In his brief, Hal concedes this issue and requests only that the postjudgment interest begins to accrue on August 7, 2013, which is the date the final judgment was entered in district court. In oral argument before this court, LaDonna’s attorney agreed that August 7, 2013, was the effective date of the judgment for past due child support and spousal maintenance. Based upon the agreement of the parties, we conclude the district court erred by ordering that no interest would accrue on the judgment for past due child support and spousal maintenance unless Hal was more than 15 days late in making any arrearage payment. We remand with directions for the district court to order that postjudgment interest for past due child support and spousal maintenance begins to accrue on August 7,2013, the date the judgment was entered in district court.
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Standridge, J.:
Gwendolyn Lehman appeals die district court’s decision to dismiss her negligence action against the City of Topeka (the City), arguing the court erred in applying the Kansas saving statute, K.S.A. 60-518, in a manner that failed to save her action filed outside the applicable statute of limitations. Lehman contends the statute of limitations was tolled because (1) she never received notice of tlie dismissal of the previous case and (2) die automatic stay that was entered in die previous case due to the bankruptcy of one the codefendants operated as a stay of the entire case.
Facts
The Ciiy commenced a project to widen a section of Gage Boulevard between Southwest 10th Avenue and Southwest 12th Street. Lehman owns a home located on this section of Gage Boulevard. During the project, a deep hole was drilled adjacent to Lehman’s home.
On August 16,2010, Lehman filed case No. 10-C-1150 in Shawnee County District Court, naming the City, ONEOK, Inc. (d/b/a Kansas Gas Service), and Miller Paving and Construction (Miller) as defendants. Lehman claimed that the hole drilled adjacent to her home weakened the supporting structure of her home and caused flooding and foundation issues.
On April 28, 2011, Miller filed a petition for Chapter 11 bankruptcy with the United States Bankruptcy Court. Miller’s bankruptcy petition apparently created an automatic stay of proceedings as to Miller in case No. 10-C-1150. The district court scheduled a pretrial conference for August 5, 2011. The City was the onlyparty to appear at the conference; as a result, the district court dismissed the case for lack of prosecution.
On May 16, 2012, Lehman filed case No. 12-C-555 in Shawnee County District Court. In the petition, Lehman alleged the same facts as in case No. 10-C-1150, but only named the City as a defendant. The City answered by filing a motion to dismiss for failure to state a claim based on the expiration of the 6-month saving period provided in K.S.A. 60-518. In response, Lehman argued that the stay in case No. 10-C-1150 created by Miller’s bankruptcy had stayed the entire case and, therefore, had extended tire time period for Lehman to file a new case.
The district court granted tire City’s motion to dismiss, ruling that (1) Lehman.had failed-to file case No. 12-C-555 within 6 months of the dismissal of 'case No. 10-C-1150, as required by K.S.A. 60-518 and (2) the automatic stay created by Miller s bankruptcy only applied to Miller, not the other codefendants.
Analysis
On appeal, Lehman argues the district court erred in granting the City’s motion to dismiss. Specifically, she contends the court erred in applying K.S.A. 60-518 in a manner that failed to save her action filed outside the applicable statute of limitations. Lehman contends the statute of limitations was tolled because (1) she never received notice of the dismissal of case No. 10-C-1150 and (2) the automatic stay that was entered in case No. 10-C-1150 resulting from Miller’s bankruptcy operated as a stay of the entire case. Each of these arguments is addressed in turn.
Standard of Review
Initially, the City claims that we should review this case under a summary judgment standard of review, rather than the standard of review applicable to motions to dismiss, because the district court considered matters outside the pleadings in making its ruling. The City acknowledges that this issue was not raised or considered below, but mentions it now only to establish the proper standard of review.
Under K.S.A. 2013 Supp. 60-212(d), a motion to dismiss for failure to state a claim under K.S.A. 2013 Supp. 60-212(b)(6) is treated like a motion for summaiy judgment if matters outside the pleadings are presented to and not excluded by the court. In this case, the parties attached several documents to their motions in support of and in opposition to the City’s motion to dismiss, including documents related to Miller’s bankruptcy. In addition, the City asked the district court to take judicial notice of case No. 10-C-1150. It is evident from the district court’s memorandum decision and order dismissing the case that the court did consider matters outside of the pleadings in making its ruling, effectively converting the City’s motion to dismiss to one for summaiy judgment. Thus, this court must determine if the district court’s decision can be affirmed under the standards governing summary judgments. See Davidson v. Denning, 259 Kan. 659, 667, 914 P.2d 936 (1996) (even though district court’s decision did not expressly state it considered defendants’ motion to dismiss as summary judgment motion, Court of Appeals properly treated it as such because “the court clearly considered matters beyond the face of the petition in granting the motion”); see also Admire Bank & Trust v. City of Emporia, 250 Kan. 688, 692, 829 P.2d 578 (1992) (holding district court erred in not treating motion to dismiss for failure to state claim as motion for summary judgment because court clearly considered matters outside the pleadings, but concluding decision could be upheld on appeal as right for wrong reason if court’s granting of motion to dismiss for failure to state a claim “withstands application of summary judgment standards”).
Accordingly, the well-known standard of review governing summary judgment applies. This standard provides that summary judgment is appropriate only where 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 drat the moving parly is entitled to judgment as a matter of law. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 962, 298 P.3d 250 (2013). Because the parties agree there is no factual dispute, our review of the district court’s order is de novo. See David v. Hett, 293 Kan. 679, 682, 270 P.3d 1102 (2011). Additionally, to the extent that resolution of Lehman’s arguments requires statutory interpretation, our review is unlimited. See Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
Kansas Saving Statute, K.S.A. 60-518
Our analysis begins by considering the provisions of the Kansas saving statute, K.S.A. 60-518, which is critical to the viability of Lehman’s case. The statute provides:
“If any action be commenced within due time, and the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or if the plaintiff die, and the cause of action survive, his or her representatives may commence a new action within six (6) months after such failure.” K.S.A. 60-518.
As explained by the Kansas Supreme Court,
“ ‘[t]he general periods of limitation are not changed by [the saving] provision, but it is intended to give a party who brought an action in time, which was disposed of otherwise than upon tire merits after the statute of limitations had run, a [period] of grace in which to reinstate his [or her] case and obtain a determination upon the merits.’ ” Seaboard Corporation v. Marsh Inc., 295 Kan. 384, 395, 284 P.3d 314 (2012).
In order for the saving statute to apply, (1) the first suit must have been filed before the limitations period expired, i.e., “commenced within due time,” (2) the first suit must have been dismissed for reasons other than the merits of tire claim, (3) the second suit must have been filed within 6 months of dismissal of the first suit, and (4) but for the saving statute, the limitations period must have expired when the second suit was filed. Campbell v. Hubbard, 41 Kan. App. 2d 1, 2-3, 201 P.3d 702, rev. denied 286 Kan. 1176 (2008).
Applying these requirements here, it is undisputed that case No. 10-C-1150 was filed within the 2-year statute of limitations for a tort claim. And the district court dismissed case No. 10-C-1150 for lack of prosecution, which is not a dismissal based on the merits. Lehman alleged that the City’s negligence occurred on March 23, 2009. Thus, the 2-year statute of limitations had expired when Lehman filed the second suit. However, Lehman did not file case No. 12-C-555 within 6 months of the dismissal of case No. 10-C-1150. The district court dismissed case No. 10-C-1150 on August 5,2011. Lehman did not file case No. 12-C-555 until May 16, 2012, more than 9 months after tire dismissal of the first case. As a result, the district court correctly determined that the saving statute did not apply to case No. 12-C-555, and the case was properly dismissed on grounds drat it was filed outside the proper statute of limitations.
Notice of Dismissal
As an alternative strategy to accomplish resurrection of her claim, Lehman asserts the district court improperly dismissed case No. 10-C-1150 because it failed to provide her counsel of record with notice of its intent to dismiss the case, as required by K.S.A. 2013 Supp. 60-241(b)(2). Because the court’s failure to provide her counsel proper notice renders dismissal of case No. 10-C-1150 invalid, Lehman argues the original case is still pending and the saving statute applies to case No. 12-C-555.
But Lehman failed to raise this issue before tire district court. The only issue Lehman argued in her motion in opposition to the City’s motion to dismiss was that the stay resulting from Miller’s bankruptcy proceeding caused a stay of the entire case. Issues not raised before the district court cannot be raised on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). Although there are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, Lehman does not acknowledge that she failed to raise this issue below or otherwise allege that any of these exceptions apply to warrant this court’s review of her argument. See In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 1178 (2009) (listing exceptions to general rule that new legal theory may not be asserted for first time on appeal). 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). Given Lehman did not properly preserve this issue, we decline to address it on appeal.
The Automatic Stay Resulting from Millers Bankmptcy Only Applied to Miller
Lehman contends the automatic stay that was entered in case No. 10-C-1150 as a result of Miller’s bankruptcy created a stay of the entire case that was applicable to all defendants. Lehman claims the case was stayed until she received notice that Miller would be selling all of its assets.
Under 11 U.S.C. § 362(a)(1) (2012), a bankruptcy petition “operates as a stay, applicable to all entities,” of:
“(1) the commencement or continuation, including the issuance or employment of process, of a judicial, administrative, or other action or proceeding against the debtor that was or could have been commenced before the commencement of the case under this title, or to recover a claim against the debtor that arose before the commencement of the case under this title.”
The automatic stay provision of 11 U.S.C. § 362(a) is one of the fundamental protections provided to a bankruptcy debtor. It stops collection efforts for all antecedent debts and gives the debtor a fresh start, free from the immediate financial pressures that caused the debtor to go into bankruptcy. United Northwest Fed’l Credit Union v. Arens, 233 Kan. 514, 515, 664 P.2d 811 (1983). The automatic stay is in force from the moment the bankruptcy petition is filed and terminates automatically when the bankruptcy proceeding is closed or dismissed. 233 Kan. at 516. “It is settled that acts done in violation of the stay are Void and without effect.’ ” 233 Kan. at 516.
While it does not appear that Kansas state courts have addressed the effect of an automatic stay on the debtor’s codefendants, federal courts follow the general rule that the stay provision extends only to the debtor, not to the debtor’s solvent codefendants. See, e.g., Okla. Federated Gold & Numismatics v. Blodgett, 24 F.3d 136, 141 (10th Cir. 1994); see also Fortier v. Dona Anna Plaza Partners, 747 F.2d 1324, 1330 (10th Cir. 1984) (“The language of [11 U.S.C. § 362] extends stay proceedings only to actions ‘against the debtor.’ There is nothing in the statute which purports to extend the stay to causes of action against solvent co-defendants of the debtor.” [citing cases from other circuits]); In re Sprint Corp. Securities Litigation, 232 F. Supp. 2d 1193, 1200 (D. Kan. 2002) (“The rule followed in the Tenth Circuit is that the stay provision does not extend to the third party defendants or a debtor’s codefendants.”). This general rule is overwhelmingly supported by federal caselaw and is further strengthened by the plain language of the statute, which clearly focuses on the insolvent party, i.e., the “debtor.” See 11 U.S.C. § 362(a)(1); Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 544 (5th Cir. 1983) (“To read the ‘all entities’ language as protecting co-debtors would be inconsistent with the specifically defined scope of the stay ‘against the debtor,’ § 362[a][1].”). In comparison, Chapter 13 specifically authorizes the stay of actions against codebtors: See 11 U.S.C. § 1301(a) (2012). Conversely, “[n]o such shield is provided Chapter 11 co-debtors by § 362(a).” 706 F.2d at 544.
A limited exception allows a stay to be imposed against the debtors codefendants under 11 U.S.C. § 362(a)(1) in “unusual circumstances,” as “when there is such identity between the debtor and the third-party defendant that tire debtor may be said to be the real party defendant and that a judgment against the third-party defendant will in effect be a judgment or finding against the debtor.” A.H. Robins Co., Inc. v. Piccinin, 788 F.2d 994, 999 (4th Cir.), cert. denied 479 U.S. 876 (1986). Other courts have noted that another narrow exception may apply if the bankruptcy proceedings would be adversely impacted if the case is not stayed as to the debtor's codefendants or if the stay would contribute to the debtor s efforts to reorganize. See Matter of Zale Corp., 62 F.3d 746, 761 (5th Cir. 1995); Teachers Ins. & Annuity Ass’n of America v. Butler, 803 F.2d 61, 65 (2d Cir. 1986).
We find persuasive the reasoning of the federal courts in the cases set forth above and adopt it as the law in Kansas. Applying this new legal principle to the facts presented here, we hold the stay provision in this case extended only to the debtor (Miller) and not to the debtor s solvent codefendants. Moreover, there is nothing in the record to support, and Lehman does not allege, application of the limited exceptions described above to the present case. Accordingly, 11 U.S.C. § 362(a)(1) did not operate to stay Lehman’s claims against the City.
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Stegall, J.:
Edward and Veronia Fox were married in Germany on December 22,1979. At that time, Edward Fox was a serviceman with the United States Army stationed in Germany and Veronia Fox was a German citizen. Approximately 17 years into the marriage, Edward Fox retired from the United States Army and began employment with the United States Civil Service. During the entirety of the marriage tire parties were domiciled in Germany, and when the marriage failed, Edward Fox filed for divorce in the district court of Aschaffenburg, Germany. On October 13, 2009, that court entered a final decree of divorce. At Edward Fox’s request, and over Veronia Fox’s objection, the German court did not attempt to enter a judgment with respect to Edward Fox’s pensions, either from the Army or under the Federal Employee Retirement System. The German court stated that the question of whether Veronia Fox was entitled to share in Edward Fox’s pensions was “reserved” to the “law of obligation.”
Following the divorce, sometime in 2011, Edward Foxwas transferred to a Civil Service position at Ft. Riley, Kansas. On April 2, 2012, Veronia Fox filed her petition in this case in Riley County District Court, seeking “to divide property not divided at the divorce.” The petition stated that due to Edward Fox’s residency in Kansas after the German divorce decree, the Riley County District Court had “acquired the requisite jurisdiction” to divide the pensions. Veronia Fox asked the Riley County District Court to undertake the division and to award her “her share of said marital property.” She did not cite any statutory basis for her claim, nor did she assert any other common-law causes of action.
The district court granted Edward Fox’s motion to dismiss on the grounds that it lacked subject matter jurisdiction. Specifically, the court held that Edward Fox’s “military and civil service pensions are his separate property” and that Kansas law cannot “operate to create marital property where there was no marriage existing at the time the owner of the property came to Kansas.” As such, tire court determined that dismissal was necessary as it was “without subject matter jurisdiction to award any separately owned property of Mr. Fox, including his federal pensions, to his former wife.” Veronia Fox appeals from this order.
Whether a court has subject matter jurisdiction is a question of law over which our review is unlimited. Graham v. Herring, 297 Kan. 847, 855, 305 P.3d 585 (2013). As we have previously said, tire “ability of Kansas trial courts to reach military retirement pay has been a troublesome process.” In re Marriage of Pierce, 26 Kan. App. 2d 236, 238, 982 P.2d 995, rev. denied, 268 Kan. 887 (1999). In 1981, the United States Supreme Court prohibited state courts from dividing military pensions in state court divorce proceedings. McCarty v. McCarty, 453 U.S. 210, 101 S. Ct. 2728, 69 L. Ed. 2d 589 (1981). In response, Congress enacted the federal Uniformed Services Former Spouses’ Protection Act (USFSPA), 10 U.S.C. § 1408 (2012), providing that a “court may treat disposable retired pay payable to a member for pay periods beginning after June 25, 1981, either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court.” 10 U.S.C. § 1408(c)(1). As such, tire USFSPA created a statutoiy grant in federal law permitting state courts to treat military pensions in a divorce proceeding according to the laws of that jurisdiction.
Veronia Fox’s first argument on appeal is that the USFSPA permits Edward Fox to consent to subject matter jurisdiction in Kansas. Her argument is premised on 10 U.S.C. § 1408(c)(4), which states:
“A court may not treat the disposable retired pay of a member in the manner described in paragraph (1) unless the court has jurisdiction over the member by reason of (A) his residence, other than because of military assignment, in the territorial jurisdiction of the court, (B) his domicile in the territorial jurisdiction of the court, or (C) his consent to the jurisdiction of the court.”
She argues that because Edward Fox asked the German court to separate the issue of dividing his pensions from the divorce proceedings and reserve it for another court of competent jurisdiction, he consented to the jurisdiction of a state court operating pursuant to the USFSPA.
Thus, we must determine whether 10 U.S.C. § 1408(c)(4) refers to subject matter jurisdiction, to personal jurisdiction, or to both. The interpretation of statutes involves questions of law over which we exercise unlimited review. Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013). “Where possible in construing federal statutes, state courts should seek direction from the decisions of federal courts interpreting similar language.” Purvis v. Williams, 276 Kan. 182, 188, 73 P.3d 740 (2003). Absent such direction, it is within this court’s power to interpret federal statutes. Purvis, 276 Kan. at 187. Where, as here, we can find no binding authority, we must construe die provision ourselves according to ordinary principles of statutory construction. Sierra Club v. Moser, 298 Kan. 22, 53, 310 P.3d 360 (2013).
We begin with the plain meaning of the statute, giving words their ordinary meaning. We will not speculate beyond such meaning when it is unambiguous. Northern Natural Gas Co. v. ONEOK Field Services Co., 296 Kan. 906, 918, 296 P.3d 1106 (2013). When statutory language is unclear or ambiguous, however, we may “employ canons of construction, legislative history, or other background considerations to divine the legislature’s intent and construe the statute accordingly.” Stewart Title of the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 564-65, 276 P.3d 188 (2012). Finally, we must give effect “to the entire act” thereby reconciling “the different provisions so as to make them consistent, harmonious, and sensible.” State v. Engles, 270 Kan. 530, 533, 17 P.3d 355 (2001).
There are multiple indications from the statutory language itself that Congress intended to deal only with personal jurisdiction in 10 U.S.C. § 1408(c)(4). The section sets out three ways a court may obtain “jurisdiction over the member.” This is the language of personal jurisdiction. Additionally, of the three means of obtaining jurisdiction, the first two listed — residency and domicile — are traditionally aspects of personal jurisdiction. Moreover, looking at the USFSPA as a whole, we note that the definition of a “court” in 10 U.S.C. § 1408(a)(1)(A) is a court “of competent jurisdiction.” This language has been construed by federal courts to mean a court with preexisting subject matter jurisdiction. See, e.g., Steel v. U.S., 813 F.2d 1545, 1548 (9th Cir. 1987) (holding that the USFSPA “merely empowered a court that otherwise had jurisdiction to di vide marital property” and that it “does not create jurisdiction, but grants power to courts once they have jurisdiction”). Finally, a cur-soiy review of the history of the USFSPA shows that Congress was concerned with preventing forum shopping by spouses who might seek out states with favorable marital property laws even if the service member had minimal or no contact with that forum. See Matter of Marriage of Booker, 833 P.2d 734, 739 (Colo. 1992).
In light of the plain language of 10 U.S.C. § 1408(c)(4), the overall structure of the USFSPA, and its legislative history, we have no difficulty concluding that the phrase “consent to the jurisdiction of the court” refers merely to personal jurisdiction, not to subject matter jurisdiction. This result is in accord with the decisions of the few other state courts that have considered this narrow question. See, e.g., Wagner v. Wagner, 564 Pa. 448, 457-58, 768 A.2d 1112 (2001) (“[The USFSPA] authorizes action by those state courts that already have subject matter jurisdiction and substantive law authority under pertinent state law. . . . [W]e conclude, therefore, that section 1408(c)(4) refers to personal jurisdiction.”). It is likewise in harmony with the general rule in Kansas that parties “cannot confer subject matter jurisdiction by consent, waiver, or estoppel.” Bartlett Grain Co. v. Kansas Corporation Comm’n, 292 Kan. 723, Syl. ¶ 3, 256 P.3d 867 (2011).
Veronia Fox taires her argument from Edward Fox’s actions one step further, arguing that even if he cannot consent to subject matter jurisdiction pursuant to the USFSPA, such jurisdiction should nonetheless be conferred by principles of equity such as estoppel. As just stated, however, equitable doctrines like estoppel cannot function to give a court subject matter jurisdiction where it would not otherwise have it. In Place v. Place, 207 Kan. 734, Syl. ¶ 3, 486 P.2d 1354 (1971), the Kansas Supreme Court stated that even a court of equity must first have “acquired jurisdiction of a subject matter.” As such, “something more than a need to do justice is required.” Frazier v. Goudschaal, 296 Kan. 730, 744, 295 P.3d 542 (2013). Equitable arguments and doctrines, no matter how compelling, are insufficient by.themselves to confer subject matter jurisdiction upon a court.
Veronia Fox’s final argument on appeal is drat K.S.A. 2013 Supp. 23-2801 grants subject matter jurisdiction over this matter. Again, statutory construction involves questions of law over which we exercise unlimited review. Jeanes, 296 Kan. at 873. The statute states in relevant part: “All property owned by married persons, including die present value of any vested or unvested military retirement pay, . . . shall become marital property at die time of commencement by one spouse against the other of an action in which a final decree is entered for divorce, separate maintenance, or annulment.” K.S.A. 2013 Supp. 23-2801(a). Veronia Fox reasons that this Kansas law operated to transform Edward Fox’s military pensions into marital property at the time Edward Fox filed for divorce in Germany given that it was “an action in which a final decree is entered for divorce.” She concedes that the divorce action was filed and decided long before either of the parties ever had any contact whatsoever with the state of Kansas. Nonetiieless, she claims that this fact is irrelevant to die effect of die statute on Edward Fox’s pensions.
We are mindful that “an appellate court’s interpretation of a statute should avoid absurd or unreasonable results.” Dillon Real Estate Co. v. City of Topeka, 284 Kan. 662, Syl. ¶ 8, 163 P.3d 298 (2007). We have previously held that K.S.A. 2013 Supp. 23-2801 vests subject matter jurisdiction over a divorce action “between two residents of Kansas and the division of property located in Kansas.” In re Marriage of Allen, 31 Kan. App. 2d 31, 32, 59 P.3d 1030 (2002) (construing K.S.A. 23-201 which was later recodified at K.S.A. 2011 Supp. 23-2801). We decline to extend die meaning of “an action” in K.S.A. 2013 Supp. 23-2801 to include a divorce filed in a foreign country between two parties who never lived in Kansas and who owned no property in Kansas. To do so would be to reach an absurd result not intended by the legislature.
Had the legislature intended to grant courts of this state subject matter jurisdiction over the kind of claim brought by Veronia Fox in this case, it certainly could have done so. See, e.g., 23 Pa. Cons. Stat. Ann. § 3104(d) (2014) (granting Pennsylvania courts subject matter jurisdiction to decide matters of property division even after a marriage has been dissolved in a foreign forum). We have no such power in Kansas. The district court’s dismissal of this action for lack of subject matter jurisdiction was proper.
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Arnold-Burger, J.:
Michael and Janet Novy (the Novys) own land subject to an oil and gas lease held by Woolsey Energy Corporation (Woolsey). Woolsey has refused to drill for either oil or gas on their land for over 30 years because Woolsey has determined, based on its own engineering study, that any well would not produce oil or gas in commercial quantities and the cost would significantly exceed any benefit. The Novys argue that Woolsey has breached its implied duty to develop the íand and, accordingly, the lease as to the right to drill for oil should be terminated. The district court granted judgment as a matter of law for Woolsey, finding that the Novys failed to present substantial evidence to show that Wool-sey breached the implied covenant to prudently develop. Because we agree, we affirm the district court’s judgment.
Factual and Procedural History
The Novys are the owners of a tract of land in Kingman County, Kansas. The land is subject to an oil and gas lease held by Woolsey. The oil and gas lease provides that the lease will remain in effect for 3 years “and as long thereafter as oil, gas, casinghead gas, cas-inghead gasoline or any of the products covered by this lease is or can be produced.” The lease also allows for unitization with other lands for gas production and states, in pertinent part:
“Any well drilled on such unit shall be for all purposes a well under this lease and shall satisfy the rental provision of this lease as to all of the land covered thereby; Provided, however, lessee shall be under no obligation, express or implied, to drill more than one gas well on said Unit.”
The Novys’ land was unitized in 1977 for the production of gas with another neighboring 160-acre tract of land, which has a producing gas and oil well locat'ed on it.
The Novys filed a petition alleging that Woolsey breached the implied duty to further develop their land because Woolsey failed to drill for oil or gas on the Novys’ land for over 30 years and refused to drill a well upon the Novys’ request. Because of this failure, the Novys asked the district court to cancel the lease as to the right to drill for oil.
A bench trial was held where the Novys’ only evidence submitted was through Michael Novy’s testimony and three exhibits outlining the correspondence between the Novys and Woolsey regarding cancellation of the lease. After the Novys rested their case, the district court found as a matter of law in favor of Woolsey because the Novys failed to present sufficient evidence to show that Wool-sey breached the implied duty to prudently develop the Novys’ land.
The Novys filed a timely notice of appeal.
Analysis
Standard of Review
A district court’s decision on a motion for judgment as a matter of law under K.S.A. 2013 Supp. 60-250 is reviewed under the former directed verdict standard of review. See National Bank of Andover v. Kansas Bankers Surety Co., 290 Kan. 247, 267, 225 P.3d 707 (2010). When ruling on a motion for judgment as a matter of law, the district court is required to resolve all facts and inferences that may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Where reasonable minds could reach different conclusions based on the evidence, the motion must be denied. City of Neodesha v. BP Corporation, 295 Kan. 298, 319, 287 P.3d 214 (2012).
The presumption, established under K S.A. 55-224, does not apply in this case.
The Novys’ first argument asserts that under the Kansas Deep Horizons Act, K.S.A. 55-223 et seq. — -specifically under K.S.A. 55-224 — it is presumed that Woolsey breached the implied covenant to prudently develop because the leased land was held by production and a new well had not been drilled for over 15 years. Because of this presumption, Woolsey was the party with the burden to prove that the lease had not been breached for failure to prudently develop.
Woolsey argues that the Novys have presented this argument for the first time on appeal; that they acquiesced in the allocation of the burden of proof by failing to argue or object to the district court’s determination that the Novys maintained the burden of proof; and that such an acquiescence equates to invited error, if there was an error.
Normally, when a lessor files suit requesting the cancellation of an oil and gas lease because the lessee breached the implied covenant to prudently develop minerals, it is the lessor’s burden to prove that the lessee failed to reasonably explore and develop the minerals under the leased land. However, if the lessor can produce competent evidence that (1) at the time the lessor filed suit there is no mineral production from a subsurface part or parts of the land covered by the oil and gas lease and (2) initial mineral production on the lease commenced at least 15 years before the suit was filed, then a presumption arises that the iessee has breached the covenant to further explore and develop the lease as it relates to the subsurface part or parts of the land covered by the lease under K.S.A. 55-224.
In Woolsey’s trial memorandum, it stated that the Novys carried the burden to prove that Woolsey breached the implied covenant to prudently develop the leased land. The Novys failed to dispute this assertion.
At the bench trial, in Woosley’s opening statement and in the oral motion for judgment as a matter of law, Woolsey again stated that the Novys carried the burden to prove that Woolsey breached the implied covenant to prudently develop the leased land. The district court even questioned what the burden of proof meant, and the Novys again failed to assert that the burden of proof was on Woolsey.
Moreover, at the bench trial, as is normal for the party with the burden of proof, the Novys presented their evidence first, without any objection. See Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1203-04, 308 P.3d 1238 (2013). Finally, a pro posed journal entiy of judgment was filed, stating that the Novys carried the burden of proof, to which the Novys made no objection.
“ In the trial of a civil action, when there is a question upon which party the burden of proof rests, a party who assumes the burden of proof, without objections, and makes no contention in the trial court that the court erred in placing the burden of proof on him, is not in a position to raise that question for the first time in this court.’ [Citation omitted.]” 297 Kan. at 1204.
Woolsey is correct. The Novys accepted the burden of proof before tire district court without question or argument. At no point in the proceedings did the Novys suggest that the presumption under K.S.A. 55-224 had taken effect, and at every stage — through their silence regarding the burden of proof — they led the district court and Woolsey to believe that they carried tire burden of proof. The Novys’ assertion, that Woolsey should cany the burden of proof, has been presented for the first time on appeal, which under Thoroughbred Assocs. is not allowed. Therefore, it was not error for the district court to place the burden of proof upon the Novys to show that the oil and gas lease was breached for Woolsey’s failure to prudently develop the leased land.
The Novys failed to present substantial evidence that Woolsey breached the implied covenant to prudently develop the leased land.
The Novys present several facts to argue that the leased land was not prudently developed for oil production. The Novys’ facts are as follows: (1) There is no producing oil well on their property; (2) there was only one oil well drilled on the Novys’ property, which was deemed a dry hole and was abandoned and plugged the same year, in 1982, and no other oil well has been drilled since that time; and (3) oil is being produced from the land adjacent to the Novys’ property, but the Novys do not receive any royalties from the oil produced by this well because their land is only unitized with the adjacent property as a gas unit.
It is well-established law in Kansas that every oil and gas lease, unless expressly excluded, contains an implied covenant to prudently develop the leased land. This implied covenant places a duty upon a lessee, when oil in paying quantities has been discovered, “to continue development of the property and to put down as many wells as may be reasonably necessary to secure the oil for the common advantage of both the lessor and tire lessee.” Stamper v. Jones, 188 Kan. 626, 631, 364 P.2d 972 (1961); see also Rush v. King Oil Co., 220 Kan. 616, 618-19, 556 P.2d 431 (1976) (reiterating the implied covenant to prudently develop); Sanders v. Birmingham, 214 Kan. 769, 775-76, 522 P.2d 959 (1974) (reiterating the implied covenant to prudently develop); Vonfeldt v. Hanes, 196 Kan. 719, 722, 414 P.2d 7 (1966) (reiterating the implied covenant to pru-dendy develop); Temple v. Continental Oil Co., 182 Kan. 213, 220, 320 P.2d 1039 (reiterating the implied covenant to prudently develop), reh. denied 183 Kan. 471 (1958).
It is a question of fact whether a lessee has undertaken the duties imposed by the implied covenant to prudently develop. Rush, 220 Kan. at 619. The burden of proof rests on the lessor to show, by substantial evidence, that an implied covenant has been breached. Sanders, 214 Kan. at 776-77. Substantial competent evidence is that which is both relevant and substantial and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. In other words, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. Venters v. Sellers, 293 Kan. 87, 93, 261 P.3d 538 (2011).
“The extent of the duties required of a lessee is measured by what is referred to as ‘the prudent operator test’. Under the prudent operator test the lessee must continue reasonable development of the leased premises to secure the oil for the common advantage of both lessor and lessee and may be expected and required to do that which an operator of ordinary prudence would do to develop and protect the interests of the parties. [Citation omitted.] The large expense incident to exploration and development, combined with the additional fact the lessee must bear the loss of unsuccessful exploration and development, justifies the lessee in exercising caution with regard to his own economic interests, as well as the interests of die lessor. A lessee is under no duty to undertake development which is unprofitable to him just because it might result in some profit to the lessor. [Citation omitted.]” Rush, 220 Kan. at 619.
The following-are several factors used by the courts when considering the application of the prudent operator test for the can cellation of an oil and gas lease for breach of the implied covenant to prudently develop:
• The quantity of oil and gas capable of being produced from the premises as indicated by prior exploration and development;
• the local market and demand therefor;
• the extent and results of the operations, if any, on adjacent lands;
• the character of the natural reservoir — whether it is such as to permit the drainage of a large area by each well;
• the usages of the business;
• the cost of drilling, equipment, and operation of wells;
• the cost of transportation, the cost of storage, and the prevailing price; and
• the general market conditions as influenced by supply and demand or by regulation of production through governmental agencies. Sanders, 214 Kan. at 776.
The only evidence of any of these factors presented by the Novys — through Michael Novy’s testimony — is that the price of oil and gas has increased since the lease took effect; that there were three wells drilled about 2 miles south of the leased land; that completion techniques have changed and there are better hydraulic fracturing procedures since the lease took effect; and that Michael Novy’s company “would look very strongly” at developing the leased land if the district court cancelled the lease.
The Novys failed to provide evidence of the following factors: (1) that there is the capability of producing oil or gas in paying quantities under the leased land; (2) whether there is a local market and demand for the oil or gas; (3) the extent and results of operations on adjacent lands (despite Novy’s testimony that three wells had been drilled about 2 miles south of the leased land, he failed to indicate whether those wells were even producing any oil or gas in paying quantities); (4) the character of the natural reservoir; (5) the cost of drilling, equipment, and operation of any wells drilled; and (6) the cost of transportation and storage. The.Novys failed to present substantial evidence that Wqolsey breached the implied covenant to prudently develop the land; thus, the district court did not err when it granted Woolsey s motion for judgment as a matter of law.
The lease should not be cancelled simply because Woolsey has indicated that any oil wells drilled on the Novys’ land would not be commercially feasible.
In response to two letters from the Novys requesting further development or they would seek to cancel the lease, Woolsey replied that “any oil well drilled on [the Novys’] land will not be commercial.” The Novys believe this shows that the lease has no purpose as to oil production; thus, this lack of purpose should lead to the cancellation of the lease as to oil rights. The Novys heavily rely on Sieker v. Faye M. Stephens Trust, 49 Kan. App. 2d 183, 309 P.3d 1 (2013), for their argument.
Sieker does state tire following:
“[I]f the lessee with good reason believes there is no mineral to be obtained by further drilling, it should give up the lease. The lessee cannot hold onto the lease based on the mere possibility of further development. If the lessor’s tract is not to be developed, then it is of no use or value to the lessee; and if the lessee has no real intention to develop the tract, then the lease has no purpose, and cancelling it would do the lessee no harm.” 49 Kan. App. 2d 183, Syl. ¶ 6.
However, even in Sieker, the lessor was able to establish by substantial evidence that tire lessee breached the implied covenant to prudently develop by showing that other properties had producing wells, oil prices and demand had increased, and the lessor was approached by a prospective lessee who was willing to further explore the land. See 49 Kan. App. 2d at 187-88.
The Novys also rely on McCarney v. Freel, 121 Kan. 189, 190, 246 P. 500 (1926), which stated:
“If the undeveloped portion of the land will not produce mineral in paying quantities, and the lessee would not be justified in drilling more wells, he may not continue to hold by virtue of a provision in the lease extending the term so long as oil or gas may be produced in paying quantities.”
But, like Sieker, the lessor in McCamey was able to show that there were a number of producing wells on other properties surrounding the lessor’s property suggesting that a well would be ca pable of producing in payable quantities and the lessee still continued to refuse to drill.
As Woolsey points out, this case is similar to Fischer v. Magnolia Petroleum Co., 156 Kan. 367, 133 P.2d 95, aff'd 156 Kan. 722, 137 P.2d 139 (1943). In Fischer, the evidence indicated that no drilling activity had occurred on the leased land for over 2 years and that the lessee refused, by letter to tire lessor, to drill at that time, believing that drilling a new well would not be justified. However, the Kansas Supreme Court found:
“The mere fact that no well had been drilled on plaintiff s land — more than a half mile from production — for two and a half years is no proof that an operator of reasonable prudence, with regard for the interests of both lessor and lessee, would have drilled, under the existing facts and circumstances. Nor can we interpret appellant’s letter as an abandonment of tire lease. Appellant simply stated that it did not consider further development ‘at this time’ to be justified under the geological and production circumstances then existing. If such a decision on the part of a lessee — unquestioned by any evidence on the part of the lessor — were to be held tantamount to abandonment, the requirement that the plaintiff sustain the burden of proof as to prudent development would cease to have meaning.” 156 Kan. at 375-76.
The Fischer case goes on to state that in certain circumstances, where a lessee has refused to drill, “the lessee ‘may be required’ to surrender, provided always that there is substantial evidence to show lack of prudent development. It by no means follows that he may be required to surrender, in the absence of any testimony whatever that any ordinarily prudent operator would proceed differently.” 156 Kan. at 377.
Based on the above cases, tire lessor must show more than just the fact that the lessee has refused to drill additional wells in order sustain the burden of proof that the lessee breached the implied covenant to prudently develop. Merely because Woolsey indicated by letter that it would not be commercially feasible to drill additional oil wells on the leased land does not automatically require the cancellation of the lease as to oil. The Novys must still show, by substantial evidence, that Woolsey breached tire implied covenant to prudently develop the leased iand. Because they have failed to do so, we affirm the decision of the district court granting judgment as a matter of law to Woolsey.
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Hill, J.:
Parole officer Tony Marquez appeals his 10-day suspension from his job with the Kansas Department of Corrections. As a classified state employee, Marquez is subject to the rules of the Kansas Civil Service Act, K.S.A. 75-2925 et seq. If classified employees appeal their suspensions to the Civil Service Board, the Act requires the appointing authority to show that these employees were adequately counseled on the nature of their work deficiencies unless they had received two prior work evaluations at least a month apart before any suspension. Marquez had not received two unsatisfactory evaluations, and he appealed his suspension to tire Civil Service Board. Because tire Board failed to require tire appointing authority to show that Marquez had been adequately counseled on his work deficiencies before imposing a 10-day suspension, we must reverse his suspension. Accordingly, we reverse the district court’s order approving Marquez’ suspension.
Marquez learns of his job suspension.
Marquez has worked as a parole officer with the Kansas Department of Corrections for 21 years. He is a permanent employee in the classified service as set out in the Kansas Civil Service Act. In 2010, inmate Wyatt Parnell was released on parole and Marquez was assigned as his parole officer. Parnell was considered a moderate risk offender and was required to meet with Marquez at least once a month. In addition to the usual parole conditions there were three special conditions placed on Parnell. These special conditions were:
(1) “participation in an assessment for appropriate counseling with emphasis on batterer s intervention”;
(2) “no-cohabitation in a household where children less than 15 years old reside”;
(3) “be assessed by a qualified mental health professional or prescribing physician.”
Accompanied by his mother, Parnell reported to Marquez. Parnell’s mother stated Parnell would be residing with her and his brother; no children were living at the home. Marquez reviewed the special parole conditions with Parnell at this meeting. Later, Parnell brought his children twice to his meetings with Marquez. Marquez did not indicate in his notes whether he had asked if Parnell was living with either child.
Later, Shawna Mobley, the Batterer’s Intervention Program Director, assessed Parnell. As a result, Parnell was scheduled to at tend batterer s classes beginning in February 2011. In May 2011, Marquez was aware that Parnell had been absent from those classes. Marquez asked Mobley about these absences and he told her that he would contact Parnell about them. On June 23, 2011, Marquez and his supervisor, Dale Johnson, performed a residence check on Parnell, but he was not home. When Marquez and Johnson spoke with Parnell’s mother, she said Parnell had missed the classes because he did not have money for transportation. Marquez later testified that Parnell would not have had his parole revoked based solely on Parnell’s failure to attend those classes.
Then, in June 2011, Marquez was told of Parnell’s arrest and that Parnell was under investigation for child abuse. Marquez met with Parnell for a jail interview where Marquez performed a drug test on Parnell. When Parnell tested positive for THC and he admitted using marijuana, Marquez submitted an offender revocation staffing form seeking approval to revoke Parnell’s parole. Parnell’s parole revocation was approved.
After that, Parole Officer Lori Ryan began supervision of Parnell. Eventually, Parnell was accused of multiple crimes, including beating his pregnant girlfriend, raping her, and branding her with a fork. This incident was reported in the media. Sally Frey, Director of the Southern Parole Region and Marquez’ appointing authority, stated that when incidents such as Parnell’s occur, it is routine to review the case.
Marquez’ case file on Parnell was reviewed. The review included Marquez’ handling of Parnell’s parole. In November 2011, with his union representative present, Marquez met with Frey, Risk Reduction and Reentry Manager Aimee Huffman, and Marquez’ two supervisors.
Eventually, Marquez received a letter from Frey advising him of a proposed 30-day suspension. Marquez met with Frey and the human resources director regarding the proposed suspension. Frey sent a letter to Marquez explaining his reduced suspension of 10 days was for “the good of the service.”
Marquez appealed the suspension to the Kansas Civil Service Board. The Board concluded that Marquez’ handling of the supervision of Parnell “exhibited an incompetency and/or negligence in the performance of his duties.” The Board upheld the suspension. Marquez filed a petition for reconsideration; the Board rejected his petition and affirmed its prior order. Marquez sought judicial review of the agency action with the district court. The district court denied his petition.
The Board did not ask about counseling.
Marquez contends the Board ignored the statutory requirement that he must be adequately counseled on his work deficiencies before his suspension. In his view, K.S.A. 75-2949e directs the Board to require the Department’s appointing authority, Frey, to show Marquez received adequate counseling. Marquez argues he did not receive any counseling and therefore tire Board did not make the requisite findings sufficient to affirm his suspension.
This issue requires us to interpret provisions of the Kansas Civil Service Act. Interpretation of a statute is a question of law over which appellate courts have unlimited review. Milano's, Inc. v. Kansas Dept. of Labor, 296 Kan. 497, 500, 293 P.3d 707 (2013).
Statutory authority for the discipline of permanent employees begins with K.S.A. 2013 Supp. 75-2949(a). The statute speaks first to the dismissal or demotion of employees for the good of the service. “An appointing authority may dismiss or demote any permanent employee in the classified service when the appointing authority considers that the good of the service will be served thereby.” K.S.A. 2013 Supp. 75-2949(a). We take that to mean that the “good of the service” finding pertains only to instances of employee dismissal or demotion. The law then proceeds to mention suspension of employees in the next sentence. “For disciplinary purposes, an appointing authority may suspend without pay a permanent classified employee for a period not to exceed 30 calendar days.” K.S.A. 2013 Supp. 75-2949(a). There is no mention of suspensions “for the good of the service.”
From these general concepts, the statutes progress to specifics. Permanent employees may be dismissed, demoted, or suspended for deficiencies in work performance because they are incompetent or negligent in the performance of their duties. See K.S.A. 75- 2949e(a)(1) and (2). The Board concluded in this case that Marquez was incompetent and/or negligent.
The procedure for suspending an employee is found in K.S.A. 75-2949e(b) and (c):
“(b) Unless the appointing authority determines that the good of the service ■will best be served by proceeding directly to the procedure prescribed in K.S.A. 75-2949 and amendments thereto, the appointing authority may propose dismissal, demotion or suspension of a permanent employee for deficiencies in work performance only after the employee has received two performance evaluations in the 180 calendar days immediately preceding the effective date of the proposed dismissal, demotion or suspension. These performance evaluations shall be spaced at least 30 calendar days apart.
“(c) If the appointing authority proposes to dismiss, demote or suspend a permanent employee for deficiencies in work performance without the two evaluations described by subsection (b) and if the employee appeals the action to the state civil service board, the board shall require the appointing authority to show that the employee was adequately counseled concerning the nature of the deficiencies in work performance and concerning what was expected of the employee in correcting the deficiencies.” (Emphasis added.)
The appointing authority here sought to suspend Marquez without tire two work performance evaluations mentioned in the statute. By doing so, the law required the Board to have the appointing authority show that Marquez had been adequately counseled on how his performance was deficient and what was expected of him in improving his performance.
The Department argues, and the district court agreed, that if there is a “good of the service” finding, then the appointing authority is not required to show there was adequate counseling. We find that position to be erroneous.
The statute is plain and unambiguous. If the appointing authority wishes to suspend an employee, the authority can suspend either by using evaluations or through job performance counseling and then suspension. K.S.A. 75-2949e(c) tells the Board to require the appointing authority to show that the employee was adequately counseled on the nature of the work deficiencies and how to correct them if there are no evaluations.
The appointing authority must advise an employee of his or her shortcomings before imposing any suspension. The presence of two evaluations within 6 months before imposing discipline implies the appointing authority has counseled the employee about his or her work deficiencies
Clearly, subsection (c) places the burden on the appointing authority to show the employee was adequately counseled prior to any suspension. Under this subsection, if there is a proposed suspension for deficiencies in work performance but two evaluations did not occur and the employee appeals the suspension, then the Board “shall require the appointing authority to show that the employee was adequately counseled concerning the nature of the deficiencies in work performance.” K.S.A. 75-2949e(c); see Newell v. Kansas Dept. of SRS, 22 Kan. App. 2d 514, 517, 917 P.2d 1357, rev. denied 260 Kan. 994 (1996).
The record in this appeal is clear. The appointing authority wished to impose a 10-day suspension on Marquez without using performance evaluations. Marquez appealed this decision to the Board. As outlined in K.S.A. 75-2949e(c), the Board should have required the appointing authority, Frey, to show that Marquez was “adequately counseled” prior to his suspension. In its final order, the Board made no findings regarding the appointing authority’s counseling requirement. Thus, we hold this Board action did not comply with the law.
Additionally, the district court misinterpreted the statute. It held: “Frey made a finding of ‘good of the service’ and therefore, was not required to provide a showing of adequate counsel on the work performance deficiencies.” With such an interpretation, the court clearly ignored the language of K.S.A. 75-2949e(c): “If the appointing authority proposes to . . . suspend ... for deficiencies in work performance without the two evaluations . . . , the board shall require the appointing authority to show that the employee was adequately counseled . . . .” (Emphasis added.) The district court’s misinterpretation effectively nullifies subsection (c).
Oddly, even after it determined counseling was not a requirement, the district court went on to decide Marquez had received adequate counseling. The district court did so by shifting the burden from the appointing authority to Marquez. The court held: “None of these testimonies conclude that Marquez did not receive counseling on the issue. Therefore, the Court finds that Marquez was adequately counseled prior to his suspension.” We take this statement to mean that because no one said Marquez did not receive counseling, therefore he did receive counseling. We question the soundness of that conclusion, especially since the Board never addressed the issue with the appointing authority.
Another panel of this court has addressed a similar issue. In Del Gaudio v. Kansas Dept. of Corrections, No. 99,754, 2009 WL 3378204 (Kan. App. 2009) (unpublished opinion), rev. denied 290 Kan. 1092 (2010), the court addressed boda the issue of counseling and the issue of burden shifting. In a case dealing with the dismissal of an employee and a record of adequate job performance counseling, the Del Gaudio court held:
“K.S.A. 75-2949e(b) also provides, however, that if the appointing authority ‘determines that the good of the service will best be served by proceeding directly’ to dismissal without the two performance evaluations, then under K.S.A. 75-2949e(c), ‘the [B]oard shall require the appointing authority to show that tire employee was adequately counseled concerning the nature of the deficiencies in work performance and concerning what was expected of the employee in correcting the deficiencies.’ In this situation, the appointing authority bears ‘the burden of persuasion during the appeal process’ to ‘establish that the employee has been independently advised as to Iris or her deficiencies in performance and has been counseled on how to improve.’ [Citation omitted.]” 2009 WL 3378204, at *12.
The burden is on the appointing authority to show Marquez received adequate counseling prior to his suspension. The district court here erroneously shifted the burden onto Marquez by finding he failed to show that he was not adequately counseled and then concluding he received adequate counseling.
Finally, there was a mention in the appointing authority’s suspension letter that a possible ground for suspension was “personal conduct detrimental to the state service,” mentioned in K.S.A. 75-2949f. That statute deals only with personal conduct of a state employee amounting to gross misconduct or conduct grossly unbecoming a state employee. Such conduct includes conviction of a crime, immoral conduct, willful abuse or misappropriation of state funds, and other gross acts. These serious actions can be grounds for dismissal, demotion, or suspension. Since the Board made no findings of gross negligence or gross misconduct by Marquez here, we hold that statute is immaterial to this appeal.
Because the Board failed to follow the required statutory procedure, we reverse Marquez’ suspension and reverse the district court’s order affirming the suspension.
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McAnany, J.:
Mikael Dwayne Englund appeals from his convictions of aggravated burglary and two counts of aggravated robbery, arguing that incriminating evidence obtained in a search of his home and his subsequent confession should have been suppressed and not admitted as evidence at his trial. Englund also argues that his sentence violates Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000).
The Lawrence police were investigating two separate robberies that took place at an apartment in Douglas County. Englund lived in Franklin County. Englund became a suspect, so in May 2011 the police obtained a search warrant from a district judge in Douglas County to search Englund’s Franklin County residence. The search yielded incriminating evidence, and Englund was charged in Douglas County with a number of crimes.
Englund filed a pretrial motion to suppress the evidence found during the search of his Franklin County residence and his later confession and other incriminating evidence that were the products of the search. Englund argued the evidence obtained as a result of the search warrant, including Englund’s eventual confession, should be suppressed because the warrant unlawfully authorized a search of a residence outside the territorial jurisdiction of die judge who issued it. See K.S.A. 22-2503.
The State argued the territorial restriction on the issuance of search warrants found in K.S.A. 22-2503 applied only to search warrants issued by district magistrate judges, not by district judges.
After the suppression hearing, the district court ruled K.S.A. 22-2503 applied only to district magistrate judges and not to district judges. The court noted that although K.S.A. 22-2202(14) defines “magistrate” as including both district magistrate judges and district court judges, K.S.A. 22-2503 specifically places jurisdictional limits on search warrants issued by a “district magistrate judge.” The evidence sought to be suppressed was admitted at trial, and Englund was convicted of aggravated burglary and two counts of aggravated robbery. He appeals, arguing that the evidence obtained as a result of the Douglas County search warrant should have been suppressed.
Englund claims the search warrant was void when issued because the district court judge who signed the warrant had no jurisdiction to issue it for the search of a residence outside of his judicial district under the geographic limits set forth in K.S.A. 22-2503. The State responds that tire jurisdictional limits established in K.S.A. 22-2503 explicitly refer only to district magistrate judges, not district judges.
Standards of Review
When, as here, the material facts are not in dispute, we have unlimited review over the legal question of whether suppression is warranted. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). This case also involves the interpretation and interaction of various statutes, matters of law over which our review is unlimited. State v. Dale, 293 Kan. 660, 662, 267 P.3d 743 (2011). When there is no ambiguity, the court need not resort to statutory construction. Only if the statute’s language is unclear or ambiguous do we resort to the 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 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). We must first attempt to ascertain legislative intent through statutory language enacted, giving common words their ordinary meaning. Urban, 291 Kan. at 216. When construing statutes to determine legislative intent, we must consider various provisions of an act as a whole with a view of reconciling and bringing the provisions into workable harmony if possible. State v. Coman, 294 Kan. 84, 93, 273 P.3d 701 (2012). We must construe statutes to avoid unreasonable or absurd results and presume the legislature does not intend to enact meaningless legislation. State v. Turner, 293 Kan. 1085, 1088, 272 P.3d 19 (2012). In addition, when the legislature revises an existing law, we presume the legislature intended to change the law as it existed prior to the amendment and acted with full knowledge of the existing law. See State v. Snellings, 294 Kan. 149, 157, 273 P.3d 739 (2012); State v. Henning, 289 Kan. 136, 144-45, 209 P.3d 711 (2009). Finally, we are mindful of the rule of lenity, under which criminal statutes are generally construed strictly in favor of the accused. This rule is constrained by the principle that the interpretation of a statute must be reasonable and sensible to effect the legislative design and intent of the law. The rule of lenity arises only when there is a reasonable doubt of the statute’s meaning. State v. Cameron, 294 Kan. 884, 899, 281 P.3d 143 (2012).
Englund’s Arguments
Englund’s contentions have been ably and conscientiously advanced in his appellate brief and in the forceful oral argument of his appellate counsel. K.S.A. 22-2503, enacted in 1970, is at the center of Englund’s argument. It provides: “Search warrants issued by a district magistrate judge may be executed only within the judicial district in which said judge resides or within tire judicial district to which said judge has been assigned pursuant to K.S.A. 20-319.”
Central to Englund’s arguments are Article 3, § 6(b) of the Kansas Constitution which extends to district courts “such jurisdiction in their respective districts as may be provided bylaw,” and K.S.A. 20-301a which limits a judge’s judicial power to the judicial district in which the judge sits. Englund argues that the legislature has specifically granted to district judges extra-judicial district jurisdiction in issuing arrest warrants, summonses, witness subpoenas, and search warrants related to tracking devices. He concludes that these statutes would be meaningless if district judges already had judicial authority beyond their judicial districts.
Englund notes that K.S.A. 62-1830 (Corrick 1964), the predecessor to K.S.A. 22-2502, provided that a search warrant could be “directed to any peace officer of the state.” K.S.A. 62-1830 (Corrick 1964) was repealed, and he claims no statute was enacted to specifically restore tire ability of a district judge to issue a search warrant to be executed in another judicial district. He concludes that if the legislature had intended to restore the authority of a district judge to issue search warrants for locations beyond the judge’s home district, the legislature easily could have said so, but it has not.
In considering Englund’s argument, we turn to our constitutional and statutory scheme for die territorial jurisdiction of our judges in Kansas, which begins with Article 3, § 1, of the Kansas Constitution, which provides:
“The judicial power of this state shall be vested exclusively in one court of justice, which shall be divided into one supreme court, district courts, and such other courts as are provided by law; and all courts shall have a seal. The supreme court shall have general administrative authority over all courts in this state.”
The district courts referred to in the constitution are found in each of our 105 counties. K.S.A. 20-301 states: “There shall be in each county a district court, which shall be a court of record, and shall have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law, and shall have such appellate jurisdiction as prescribed by law.” Article 3, § 6(a) of the Kansas Constitution provides for the creation of judicial districts. The various counties were originally grouped into five judicial districts. There are currently 31 judicial districts. As a general rule, each of the more populous counties constitutes a separate judicial district. The counties that are one-county judicial districts are Shawnee, Douglas, Johnson, Sedgwick, Cowley, Reno, and Wyandotte. The rest of the counties are in multi-county districts comprised of from two to seven counties. In our present case, the search warrant was issued in Douglas County, a single-county judicial district, for the search of a residence in Franklin County, which is in a different judicial district.
Article 3, § 6(a) of the Kansas Constitution further provides: “Each judicial district shall have at least one district judge.” Thus, we have at least one district judge in each of our 31 judicial districts. Article 3, § 6(b) of the Kansas Constitution provides: “The district courts shall have such jurisdiction in their respective districts as may be provided by law.”
Since 1983 our legislature has required that there also be at least one judge in each of our 105 counties. K.S.A. 20-301b provides: “In each county of this state there shall be at least one judge of the district court who is a resident of and has the judge’s principal office in that county.” Thus, there must be at least one “district judge” in each judicial district, but also at least one “judge of the district court” in each county.
With the unification and reorganization of our state judicial system in the 1970s, the judges in the various counties became “judges of the district court” and were divided into three classes: district judges, associate district judges, and district magistrate judges. The position of associate district judge was later eliminated. Thereafter, K.S.A. 20-301a was enacted, which states: “There shall be two classes of judges of the district courts established pursuant to K.S.A. 20-301: District judges and district magistrate judges. As used in this act, judge of the district court’ means any of such judges.” K.S.A. 20-301a also sets for the general geographic limits on the jurisdiction of the judges of the district court:
“Such judges shall have the jurisdiction, powers and duties prescribed by this act and otherwise prescribed by law. The judicial power and authority of a judge of the district court in each judicial district may he exercised anywhere loithin such judicial district and may be exercised anywhere within any other judicial district when assigned to hear any proceeding or try any cause in such judicial district as provided in K.S.A. 20-319. . . (Emphasis added.)
While the general rule stated in K.S.A. 20-301a is that the judicial power of a judge is limited to the judge’s home judicial district, a few years earlier our legislature had specifically expanded the jurisdictional reach of the judges of the district court in certain instances. K.S.A. 22-2302(1) gives magistrates the authority to issue arrest warrants and summonses. As provided in K.S.A. 22-2305(2): “The warrant may be executed or the summons may be served at any place within the jurisdiction of the state of Kansas.” Similarly, K.S.A. 22-3214 gives criminal defendants the right to subpoena witnesses to testify at the defendant’s trial or at other hearings. This statute further provides: “(2) All courts having criminal jurisdiction shall have the power to compel the attendance of witnesses from any couniy in the state to testify.”
Search warrants in Kansas may be issued by magistrates. K.S.A. 2010 Supp. 22-2502(a). The term “magistrate” as used in this statute is defined in K.S.A. 22-2202(14) as “an officer having power to issue a warrant for the arrest of a person charged with a crime and includes justices of the supreme court, judges of the court of appeals and judges of the district courts.” In the district court, this would include both district judges and district magistrate judges.
Clearly, the legislature has the authority to define the extent of the judicial power judges of the district court may exercise. As noted earlier, Article 3, § 6(b) of the Kansas Constitution provides: “The district courts shall have such jurisdiction in their respective districts as may be provided by law.” Englund contends that the legislature’s definitive description of the geographic confines of the judicial power of the judges of the district court is found in K.S.A. 20-301a, which states in relevant part:
“The judicial power and authority of a judge of the district court in each judicial district may be exercised anywhere within such judicial district and may be exercised anywhere within any other judicial district when assigned to hear any proceeding or try any cause in such judicial district as provided in K.S.A. 20-319.
Englund finds support in Verdigris Conservancy District v. Objectors, 131 Kan. 214, 218, 289 Pac. 966 (1930), a case in which our Supreme Court considered the judicial authority of four district court judges from different counties who convened in Wilson County to determine the validity of an act organizing a conservancy district for the purpose of preventing and protecting against floods. The conservancy district covered the flood plain of die Verdigris River and its tributaries in tire counties of Elk, Greenwood, Montgomery, Wilson, and Woodson.
The court in Verdigris addressed the judicial authority of the panel of district court judges who convened in Wilson County. In doing so, the court confined its analysis to provisions in the Kansas Constitution and did not consider any of the statutes at issue in our present case. The court noted the provision in Article 3, § 1, of the Kansas Constitution which refers to “such other courts, as are provided by law.” The court concluded that the legislature had the power to create an inferior court such as a conservancy court. But because of the constitutional prohibition against a district judge holding another office while serving as a judge, the court concluded the legislature could not “create a conservancy court, having judicial power, composed of judges of several judicial districts.” 131 Kan. at 219. Thus, Verdigris was decided on principles not at issue in our case.
Nevertheless, Englund points to the portion of the opinion in which the court discussed the organizational structure of our court system. The court stated:
“It is manifest from tlie territorial organization of the judicial branch of the government which has been described that judicial business is to be done in judicial districts, by district courts and district judges acting within and for their respective districts; and a judge of the district court chosen for district A cannot be empowered to transport his judicial authority to district B and exercise his authority there, any more than he could be empowered to exercise tire functions of judge of district B, in district B, while die judge of district B is present and qualified to act. The result is tiiat when Judges Ayres, Forrest and Holdren left their judicial districts and went to Judge Brown’s district they were without judicial autirority diere. They could not act as judges of the district court of Wilson county, witii power to overrule Judge Brown, or act in any other judicial capacity, and die provision in the conservancy act for a conservancy court consisting of more tiian one judge is void.” 131 Kan. at 218.
If K.S.A. 20-301a and the dicta from Verdigris were to establish a baseline for determining the geographic limits of a district judge’s judicial authority, the issue then would become how and in what. circumstances our legislature expanded the power of our district judges to exercise their judicial authority beyond the borders of their home judicial districts.
Englund points out, as noted earlier, that our legislature has specifically expanded the geographic reach of magistrates (including district judges and district magistrate judges) when issuing arrest warrants and summonses under K.S.A. 22-2302(1) and when issuing witness subpoenas under K.S.A. 22-3214(2). By specific legislative enactments arrest warrants, summonses, and witness subpoenas can be executed anywhere in the state. Englund argues that these enactments would have been a worthless exercise if our judges already had the power to act in this fashion outside their judicial districts.
Englund opines that -these legislative enactments solved the practical problem of persons subject to an arrest warrant, summons, or subpoena fleeing the jurisdiction to avoid service, a problem not present when issuing a warrant for the search of a dwelling affixed to the land. Thus, he argues, there has been no legislative incentive to extend the geographic reach of our district judges in issuing search warrants.
The legislature formerly provided for statewide execution of search warrants in K.S.A. 62-1830 (Corrick 1964) but repealed that statute in 1970. It enacted K.S.A. 22-2503 that same year and restricted district magistrate judges from issuing extra-judicial district search warrants. Englund argues that in so doing, the legislature failed to restore to district judges the former power to issue statewide search warrants previously provided for in K.S.A. 62-1830 (Corrick 1964).
K.S.A. 2010 Supp. 22-2502 permits search warrants for the installation and use of a tracking device for an initial period not to exceed 30 days. Englund points to the legislature’s recent amendment to K.S.A. 22-2503 in 2013 which deals with warrants for such tracking devices. K.S.A. 2013 Supp. 22-2503 now reads:
“(a) Except as provided in subsection (b), search warrants issued by a district magistrate judge may be executed only within the judicial district in which the judge resides or within the judicial district to which the judge has been assigned pursuant to K.S.A. 20-319, and amendments thereto.
“(b) Search warrants issued pursuant to subsection (a)(2) of K.S.A. 22-2502, and amendments thereto:
(1) That are issued by a district judge may be executed anyiohere within the state; and;
(2) shall be valid during the time period specified by the warrant regardless of whether the tracking device or the subject person or property leaves the issuing jurisdiction.
“(c) As used in this section, 'tracking data’ and ‘tracking device’ have the same meanings as defined in K.S.A. 22-2502, and amendments thereto.” (Emphasis added.)
This statute allows a district magistrate judge to authorize placing a tracking device on a vehicle located in the judicial district, and the use of the device continues to be proper if the vehicle leaves the judicial district. District judges can issue warrants for the use of such tracking devices anywhere in the state.
Englund concludes that the only statutory enactments which expand upon the jurisdictional limits set forth in K.S.A. 20-301a have done so in clear and unequivocal language, language which is not found in the version of K.S.A. 22-2503 applicable to this case. He contends our legislature has clearly demonstrated in K.S.A. 22-2305(2), K.S.A. 22-3214(2), and most recently in the 2013 amendments to K.S.A. 22-2503 that it understands how to insert the necessary language to create an exception to the general limitations on territorial jurisdiction set forth in K.S.A. 20-301a. As stated in State v. Mishmash, 295 Kan. 1143, 290 P.3d 243 (2012); “[wjhen the legislature intends to limit a category, it clearly understands how to insert the necessary language.”
Englund concludes that there is no legislative enactment which extends a district judge’s jurisdictional reach in issuing search warrants beyond the judge’s home district as specified in K.S.A. 20-301a. Further, he reminds us that to achieve the State’s objective would require us to rewrite the statute by adding a provision not found there, and this we are not permitted to do. See State v. Marx, 289 Kan. 657, 673, 215 P.3d 601 (2009).
The State’s Arguments
We consider the State’s arguments in light of tire same question raised in the analysis of Englund’s arguments. If K.S.A. 20-301a and the dicta quoted earlier from Verdigris were to establish the general baseline geographic limit on tire power of a district judge, has our legislature expanded that judicial power when it comes to issuing search warrants?
The State argues that K.S.A. 22-2503 on its face imposes a geographic limit on search warrants issued by district magistrate judges, but conspicuously absent from the statute is any limitation on district judges. The plain reading of the statute supports this argument..The State argues that we can infer from this that the legislature intended the district judges to still have the power to issue search warrants statewide. The State argues that by specifically limiting the power of district magistrates, the clear implication is drat district judges continue to have the power to issue search warrants to be executed outside of the judge’s home district. This is consistent with holdings by tire United States District Court for the District of Kansas applying state law in Lord v. City of Leavenworth, No. 08-2171-JWL, 2009 WL 129367 (D. Kan. 2009), at *4; and United States v. Aikman, No. 09-10097-01-JTM, 2010 WL 420063 (D. Kan. 2010), at *6.
If there were any ambiguity in the meaning of the pre-2013 version of K.S.A. 22-2503 that applies to this case, tire legal maxim, expression unites est exclusion alterius, (expressing the one excludes tire other), would support the State’s analysis. As stated in State v. Coman, 294 Kan. 84, 87, 273 P.3d 701 (2012); “[cjourts apply that maxim to presume that when the legislature includes specific items in a statutory list, it intends to exclude similar items not expressly listed.” Judges of tire district court are comprised of two classes of judges: district judges and district magistrate judges. K.S.A. 20-301a. Within the admittedly small universe of judges of the district court, limiting the geographic authority of district magistrate judges without reference to district judges suggests that the geographic limitation does not apply to district judges when it comes to issuing search warrants.
But the real issue is whether the repeal of the K.S.A. 62-1830 (Corrick 1964) had the effect of ending a district judge’s power to issue a warrant to conduct a search anywhere in the state and, if so, whether the legislature ever restored that power through new legislation.
K.S.A. 62-1830 (Corrick 1964) was repealed in 1970. K.S.A. 22-2503 was enacted that same year. K.S.A. 22-2503 was enacted as part of the 1970 recodification of the Kansas Criminal Code. Before 1970, there was no statutory limit on where a search warrant issued by a magistrate could be served within the state. K.S.A. 62-1830 (Corrick 1964) stated:
“A warrant sliall issue upon affidavit or upon oral testimony given under oath and recorded before the magistrate or judge. If the magistrate or judge is satisfied that there is probable cause for the issuance of a warrant, he shall issue such warrant describing the property to be searched for. . . . The warrant shall be directed to any peace officer of the state of Kansas . . . and shall command the officer to search . . . and to seize such property.” (Emphasis added.)
The statute applied to search warrants issued by district judges and district magistrate judges alike. See State v. Lamb, 209 Kan. 453, 469, 497 P.2d 275 (1972), overruled on other grounds in State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978).
The newer statute, K.S.A. 22-2503, took from district magistrate judges the power to issue search warrants outside their home judicial districts. But the legislature also enacted K.S.A. 22-2505 in 1970, which states:
“A search warrant shall be issued in duplicate and shall be directed for execution to all law enforcement officers of the state, or to any law enforcement officer specifically named therein.”
This language in K.S.A. 22-2505 had previously been contained in K.S.A. 62-1830 (Corrick 1964), the statute that was repealed in 1970 when K.S.A. 22-2503 was enacted. The language in K.S.A. 22-2505 (“directed for execution to all law enforcement officers of the state”) had previously been the basis for extra-judicial district search warrants under the old repealed statute, K.S.A. 62-1830 (Corrick 1964). See State v. Sodders, 255 Kan. 79, 872 P.2d 736 (1994), superseded by statute as stated in State v. Mendez, 275 Kan. 412, 66 P.3d 811 (2003).
When K.S.A. 62-1830 (Corrick 1964) was repealed and K.S.A. 22-2503 was enacted that same year, district magistrate judges were prohibited from issuing extra-judicial district search warrants, but the provision for statewide execution of search warrants for merly found in K.S.A. 62-1830 (Corrick 1964) was preserved in K.S.A. 22-2505. Magistrates authorized to issue search warrants in the district court are district judges and district magistrate judges. If district magistrate judges can no longer issue warrants for searches outside their home judicial district, that leaves only district judges; and if district judges cannot issue warrants for searches outside their districts, then enacting K.S.A. 22-2505 was a meaningless gesture. The State reminds us that we presume the legislature does not intend to enact meaningless legislation. Turner, 293 Kan. at 1088.
Englund counters with the argument that K.S.A. 20-301a was enacted in 1976, several years after K.S.A. 22-2505 became law, and “ where there is a conflict between two statutes the latest legislative expression controls.’” Sodders, 255 Kan. at 83. But here we have a conflict between a general principle of law (K.S.A. 20-301a) and a more specific enactment dealing not with the overall jurisdiction of judges, but their specific jurisdiction in issuing search warrants (K.S.A. 22-2505). In this situation, the more specific statute controls. Turner, 293 Kan. at 1088. Further, when seeking to determine legislative intent, we must consider various provisions in pari materia with a view to reconciling and bringing the provisions into workable harmony if possible. Coman, 294 Kan. at 93.
Returning to first principles, the intent of the legislature governs if that intent can be determined. While in other instances the legislature has specifically referred to the jurisdictional reach of our district judges, the lack of that specific reference in the version of K.S.A. 22-2503 at the time this search warrant was issued is not the controlling factor. When we consider K.S.A. 22-2503 and K.S.A. 22-2505 together, two statutes enacted at the same time K.S.A. 62-1830 (Corrick 1964) was repealed, the legislature’s intent is clear: district magistrates may no longer issue search warrants outside their home judicial district, but district judges can. Thus, we conclude the district court did not err in refusing to suppress the evidence obtained in the search of Englund’s residence in Franklin County.
Apprendi Sentencing Issue
Englund also contends that the district court violated his constitutional rights when it used his criminal history to calculate his sentence without following the procedural safeguards of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Apprendi requires that “any fact that increases the penalty for a crime beyond the prescribed statutory maximum ... be submitted to a jury and proved beyond a reasonable doubt.” 530 U.S. at 490. But a defendant’s prior convictions are explicitly excluded from this requirement. 530 U.S. at 490.
The Kansas Supreme Court has recognized the continuing validity of this prior conviction exception to Apprendi’s requirements. See State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). Because our Supreme Court has given no indication that it is departing from Ivory, we are bound by it. See State v. Ottinger, 46 Kan. App. 2d 647, 655, 264 P.3d 1027 (2011), rev. denied 294 Kan. 946 (2012). The district court did not violate Englund’s constitutional rights when it used his criminal history score to calculate his sentence.
Affirmed. | [
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Leben, J.:
Patrick Muir is an adult resident of a long-term-care facility, and he qualifies for Kansas Medicaid assistance. Under state and federal Medicaid law, a certain amount of his monthly income from disability payments is protected income that he can keep, but the rest of his income is deemed “available income” that he must pay toward his care before Medicaid will pay the rest of the costs. See 42 U.S.C. § 1396a(a)(17) (2006); K.A.R. 30-6-53(3) (2009).
Muir challenges a state agency ruling that he may not take part of his disability income and use it to pay child support for his two children and maintenance to his former spouse. Instead, the agency determined that his child support and maintenance obligations did not malee some funds exempt from the otherwise “available income” that he must pay toward his care. He argues that the agency wrongly interpreted the law and acted arbitrarily.
But closely related federal regulations specifically provide that amounts owed for child support or maintenance aren’t excluded when calculating a person’s available income in the form of Social Security Supplemental Security Income (SSI) payments. The federal government provided a rationale for that rule: otherwise, the SSI payments made by the government would “subsidize child support obligations or other debts, which is not its purpose as a program designed to meet the subsistence needs of its claimants only.” 56 Fed. Reg. 3209-11 (January 29, 1991).
The State of Kansas may apply the same rationale to its Medicaid program, making sure that it provides only the required assistance to the Medicaid beneficiary rather than also subsidizing — direcdy or indirectly — the beneficiary’s child-support or maintenance payments. The state agency in Muir’s case did not misinterpret any statute or regulation; nor did it act arbitrarily. We therefore affirm the district court, which upheld the agency’s ruling.
Factual and Procedural Background
We begin our review with the background facts necessary to our decision. Muir became a quadriplegic with no feeling below his chest after a surgery in 2002 that attempted to correct a serious malformation in his spine. At the time, Muir was in his late 30’s and lived with his wife and two children.
He continued to live at home with his family until August 2009, when he moved into a long-term-care facility. He receives $2,244 per month in Social Security disability payments and $2,323.17 from a private disability-insurance policy, giving him a total income of $4,567.17 per month.
Two additional events set the stage for the legal dispute now before us. First, Muir’s wife filed for divorce in March 2010. The parties settled the case in May 2010, agreeing that Muir would pay $598 per month in maintenance for 121 months and that he would pay $1,430 per month in child support (the children were then 12 and 10). At the time of the divorce, Muir’s ex-wife was also receiving $1,120 per month in Social Security disability payments for the children.
Second, Muir filed an application in May 2010 for Medicaid assistance for the expense of his long-term care. The Kansas Health Policy Authority, which administered the state’s Medicaid program at that time, approved Muir’s application in July 2010. But it concluded that virtually all of his monthly income would be considered “available income” that had to be paid toward his care expenses before Medicaid would cover the remaining costs. No adjustment was made based on Muir’s child-support or maintenance obligations.
Muir appealed that agency determination — first to an administrative hearing officer and then to the Kansas Health Policy Authority State Appeals Committee. Muir contended that he should be able to use part of his disability-income payments to pay his child-support and maintenance obligations, rather than having that money considered “available income” that had to be spent on his long-term care. Both the hearing officer and the appeals committee rejected Muir’s argument.
Muir then filed a petition for review in the Johnson County District Court. That court also ruled against Muir, concluding that the final agency determination (by the appeals committee) was neither contrary to law nor arbitrary and capricious. The court noted that Muir had also challenged the state agency’s position on the constitutional basis that it denied unmarried disabled people equal protection when compared to those who were married. But the court concluded that Muir had not provided an adequate legal argument to support his equal-protection challenge, so the court concluded that he had waived that claim.
Muir has appealed to this court. We review the decisions of an administrative agency under tire Kansas Judicial Review Act, K.S.A. 2013 Supp. 77-601 et seq. The party challenging the agency’s ruling has the burden to show that the agency’s action was wrong, K.S.A. 2013 Supp. 77-621(a)(l), but courts may grant relief on either of two reasons argued here by Muir: if the agency has made an error in interpreting or applying the law, K.S.A. 2013 Supp. 77-621(c)(4), or if tire agency’s decision is arbitrary, capricious, or “otherwise unreasonable.” K.S.A. 2013 Supp. 77-621(c)(8). In a case like this one, in which no evidence was independently heard by the district court, we must review these issues without any required deference to the district court’s decision. See Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
Before we proceed with our discussion of Muir’s appeal, we should note some matters that do not affect our decision but are worthy of mention.
First, we are determining whether the Kansas Health Policy Authority acted properly when it denied Muir’s claim in April 2011. Since that time, the agency with authority over Medicaid matters has changed to the Kansas Department of Health and Environment. Neither party has filed a motion to substitute the Kansas Department of Health and Environment as the proper party on appeal, and we simply refer to the agency or the agency decision in the remainder of our opinion. We also note that a manual we will refer to later in this opinion was originally developed by the Kansas Department of Social and Rehabilitation Services, which had authority over Medicaid before the Kansas Health Policy Authority. The changes in the agency handling Medicaid matters have no impact on the merits of either party’s position.
Second, neither party included the manual in our record on appeal. While the current manual is available on a state website, we have relied primarily on the excerpts that were contained in the parties’ briefs and in the agency’s decision. The parties agreed at oral argument that these materials accurately reflected the manual provisions in effect at the time of the agency decision.
Third, we conclude that we need not decide whether a Kansas court should give deference to the provisions of the manual. Normally, a guidance document adopted by a Kansas agency without formal rulemaking procedures isn’t given special recognition. L.E.H. v. Kansas Dept. of SRS, 44 Kan. App. 2d 798, 805-06, 241 P.3d 167 (2010). A state Medicaid manual, however, usually must be approved by the federal Department of Health and- Human Services. See 42 C.F.R. 430.10; National Federation of Independent Business v. Sebelius, 567 U.S._, 132 S. Ct. 2566, 2581, 183 L. Ed. 2d 450 (2012). Accordingly, some level of deference is generally given to a state agency’s interpretation of federal Medicaid laws as contained in a federally approved manual or guidance doc ument. E.g., Perry v. Dowling, 95 F.3d 231, 236-37 (2d Cir. 1996); Ritter v. Cecil Cty. Office of Hous. & Cmty. Dev., 33 F.3d 323, 327-28 (4th Cir. 1994). For matters relating only to the interpretation of state laws, however, Kansas courts generally give no deference to state agency interpretations. See Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013). We need not determine what amount of deference, if any, should be given here to tire agency manual at issue. Both sides have cited to it and contended its provisions should be followed, but as we explain below, Muir has not pointed to any provision in the manual that actually provides that amounts a Medicaid recipient is ordered to pay in child support or maintenance should be deducted from the income tire person must apply to payment for medical care.
Last, the Kansas Medicaid regulations, which have the force and effect of law, were recently revoked and replaced. See K.S.A. 77-425; Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 320, 291 P.3d 1056 (2013); 32 Kan. Reg. 1376-1415 (November 21, 2013). The parties in our case have not suggested that any laws apply to Muir s case other than those in effect when tire Kansas Health Policy Authority made its decision. We have limited our consideration to the laws in effect at that time.
Analysis
The underlying facts to the legal dispute before us are straightforward, as is the ultimate question we must answer. Muir is a quadriplegic in a long-term-care facility, and he receives $4,567.17 per month in disability payments. He owes $2,028 in maintenance and child support, but since Medicaid is paying any costs of his long-term care that he cannot, he must spend all of his “available income” on his care. The ultimate question — as a practical matter- — is whether he can use some of his disability income to pay maintenance and child support or whether virtually all of his disability income must be treated as available income and paid toward the cost of his care.
To answer that question, we must consider the various statutes, regulations, and agency guidance documents that govern the Kansas Medicaid program.
Congress created the Medicaid program in 1965 to provide federal financial assistance to states that reimburse the costs of medical treatment for their needy citizens. See Harris v. McRae, 448 U.S. 297, 301, 100 S. Ct. 2671, 65 L. Ed. 2d 784, reh. denied 448 U.S. 917 (1980). Once a state chooses to participate in Medicaid, it must comply with various federal statutes and regulations, and it must submit a written plan to the federal government detailing how it will use its funds. See Houghton ex rel. Houghton v. Reinertson, 382 F.3d 1162, 1164-65 (10th Cir. 2004). State plans are subject to approval by the federal Secretary of Health and Human Services, 42 C.F.R. 430.10, but subject to that approval, states enact and administer their own Medicaid programs within established limits. See Sebelius, 132 S. Ct. at 2581; Hodel v. Virginia Surface Mining & Recl. Assn., 452 U.S. 264, 289, 101 S. Ct. 2352, 69 L. Ed. 2d 1 (1981). In sum, a state’s Medicaid program is a cooperative federal-state program, governed by both federal and state law. See Shakhnes v. Berlin, 689 F.3d 244, 247 (2d Cir. 2012), cert. denied 133 S. Ct. 1808 (2013).
The state agency relied upon a manual — called the Kansas Economic and Employment Support Manual — in making its decision. The manual describes state policies on Medicaid eligibility. Section 8150 of the manual provides that all income is counted unless another provision exempts it. Other than the $62-per-month allowance recognized by the agency for a nursing-home resident, the agency found no other exemption that applied. Neither party has cited a provision in a statute, regulation, or the manual that exempts amounts a court has ordered a person to pay for maintenance or child support when the person is divorced and the children no longer live in that person’s home.
So there is a basis in the applicable administrative manual supporting the agency’s view. Two regulations also support that conclusion: K.A.R. 30-6-111 and K.A.R. 30-6-113 provide that all unearned income is considered as available income unless it is otherwise specifically exempted. But our task in this appeal is guided by the Kansas Judicial Review Act, which provides that Muir has the burden to show that the agency’s determination was wrong. K.S.A. 2013 Supp. 77-621(a)(l). So we turn now to the specific arguments Muir has put forth on appeal to support his claim that the agency erred.
Muir s first argument is that the agency erroneously interpreted the law. For this argument, he cites K.S.A. 39-790 and section 6100(3) of the agency manual.
K.S.A. 39-790, adopted in 1988, supports his position. That statute provided that “[f]or division of income purposes, a court-ordered child support obligation or a family maintenance allowance to a prior spouse or spouses shall not be considered available income.” But the operation of K.S.A. 39-790 appears to have been suspended by the legislature’s 1989 adoption of K.S.A. 39-791. It authorizes the suspension of K.S.A. 39-790 upon the receipt by Kansas of payments under Title XIX of the federal Social Security Act as authorized by the federal Medicare Catastrophic Coverage Act of 1988. After such payments were first received, K.S.A. 39-791 provided that K.S.A. 39-790 would remain suspended unless payments under Title XIX ended. Muir has the burden to show that the agency erred, so he would have to demonstrate that the suspension of K.S.A. 39-790 has ended. He has not provided any basis for us to conclude that the suspension has ended, and a suspended statute is of no effect.
Section 6100(3) of the manual provides that income is “considered available when a client has a legal interest therein and the legal ability to make it available.” He contends that he doesn’t have the legal ability to make available the sums he has been ordered to pay out for support. But Muir’s ex-wife and children have not been granted a legal interest in these specific funds. So the manual provision doesn’t require that the funds be excluded from Muir’s available income.
The decision we reach is supported by the-’.Kansas Supreme Court’s 1995 decision in Ussery v. Kansas Dept. of SRS, 258 Kan. 187, 899 P.2d 461 (1995). That case differed from Muir’s in that the manual we’ve noted had not yet been prepared, so the court relied only on state and federal statutes and regulations. The court approved the agency determination that a Medicaid recipient’s available income would not be reduced for court-ordered maintenance to the person’s ex-spouse. 258 Kan. 187, Syl. ¶ 7.
Muir has not shown that the agency erroneously interpreted or applied the law.
Muir’s second argument is that the agency acted arbitrarily or capriciously when it failed to exclude the amounts he had been ordered to pay in child support and maintenance from the portion of his income available for medical expenses. We already know that Muir has not shown that the agency’s decision is contrary to law. But now we must determine whether there is some basic and serious unfairness here that can be judicially remedied. To consider that possibility, we must place the dispute in a larger context.
In Kansas, a person may qualify for Medicaid in two different ways. Some qualify primarily based on their status as a recipient of Supplemental Security Income (SSI) benefits for a disability. See K.A.R. 30-6-65(a)(l), (2) (2009). Others qualify based on a more detailed review of their medical needs and indigency. See K.A.R. 30-6-94 (2009).
For those who qualify based on their receipt of SSI disability benefits, federal regulations provide that “available income” includes any amounts paid to satisfy maintenance or child-support obligations. See 20 C.F.R. 416.1102; 20 C.F.R. 416.1123(b)(2); 56 Fed. Reg. 3209-11 (January 29, 1991). When these regulations were adopted, the Secretary of Health and Human Services explained the rationale for them: “The effect of not considering such funds as income is to have the SSI program subsidize child support obligations or other debts, which is not its purpose as a program designed to meet the subsistence needs of its claimants only.” 56 Fed. Reg. 3209.
Our record does not tell us how Muir qualified for state Medicaid benefits. At oral argument, both parties agreed that Muir qualified for Kansas.Medicaid based on the separate provisions for the medically needy. Accordingly, the federal regulations we have noted do not apply to him.
But the underlying situations are obviously quite similar. No matter how a person qualifies for Medicaid payments, he or she qualifies based on need; the receipt of SSI payments is simply a proxy indicator. In either case, the resources available to pay Medicaid benefits remain limited, and allowing an exemption from “available income” for amounts that would be paid to support others would have the Medicaid program subsidize those support payments.
Whether an agency’s decision is arbitrary or capricious tests “die reasonableness of the [agency’s] exercise of discretion in reaching the determination” at issue. Kansas Racing Management, Inc. v. Kansas Racing Comm’n, 244 Kan. 343, 365, 770 P.2d 423 (1989); Wheatland Electric Cooperative v. Polansky, 46 Kan. App. 2d 746, 757, 265 P.3d 1194 (2011), rev. denied 297 Kan. 1257 (2013). In a closely related context, i.e., where a person has qualified for Medicaid payments because he or she is receiving SSI payments, federal regulations would provide the same outcome that the agency reached here in Muir’s case. We find nothing arbitrary, capricious, or otherwise unreasonable when the agency apphes the same rule to those who receive Medicaid benefits based on separate tests for being medically needy.
We note too that federal courts have approved the regulations that apply to Medicaid recipients who automatically qualify based on receipt of SSI payments, including the federal government’s requirement that states include support payments as available income for Medicaid purposes. See Himes v. Shalala, 999 F.2d 684, 690-91 (2d Cir. 1993) (upholding the Secretary of Health and Human Service’s disapproval of a New York Medicaid plan that would have deducted child support from available income); Peura v. Mala, 977 F.2d 484, 490 (9th Cir. 1992) (holding that state properly counted court-ordered child-support payments as available income for Medicaid purposes); Emerson v. Steffen, 959 F.2d 119, 121-22 (8th Cir. 1992) (upholding Minnesota Medicaid plan that included child-support payments as available income for Medicaid purposes). Similarly, several state courts have held that court-ordered support is included as available income for Medicaid purposes. E.g., A.C. v. E.C., 68 A.3d 265, 267-78 (Del. Fam. 2013); Clark v. Iowa Dept. of Human Services, 513 N.W.2d 710, 711 (Iowa 1994); Estate of G.E. v. Division of Medical Assistance & Health Services, 271 N.J. Super. 229, 240, 638 A.2d 833 (1994). These cases also support our conclusion that there was nothing arbitrary, capricious, or otherwise unreasonable about the agency’s decision in Muir’s case.
Muir also argues that the agency decision is arbitrary based on section 6220(4)(d) of the agency manual, which provides that “[sjupport and alimony payments are considered the income of the person for whom they are intended.” He also cites section 6100(3), which provides that “[ujneamed income is available to the individual for whom it is intended . . . .” Thus, he argues that the manual provides drat support payments “are considered the income of the person receiving such payments.” (Emphasis added.) He then contends that the agency’s interpretation in Muir’s case will “produce[] an absurd result where income is counted twice,” first to Muir and — presumably if his ex-spouse applies for Medicaid — -also to her. But Muir’s argument fails to note that his ex-spouse is not receiving these funds at all. Nor would they constitute income to her under section 6100(3), which counts sums only when the person has both “a legal interest therein and the legal ability to make it available.” As we noted previously, no court has given her a lien or attachment against the disability payments coming to Muir. Accordingly, she lacks a legal interest in those specific funds. Muir has not shown that there is any arbitrary double-counting of income that must take place under the agency’s manual or the applicable statutes or regulations.
Finally, we must consider Muir’s equal-protection challenge. He claims that the Medicaid mies applied in Kansas treat divorced recipients unfairly compared to those who are still married. Muir correctly notes that Medicaid makes some limited allowances when one spouse in a married couple is forced into a long-term-care facility and expenses are paid by Medicaid. Muir contends that the distinction between married couples and formerly married couples violates the equal-protection rights of the formerly married.
At the outset, it’s not clear that Muir has adequately preserved this issue for our consideration. Muir’s petition for judicial review did not mention it. While that doesn’t deprive a reviewing court of jurisdiction, see K.S.A. 2013 Supp. 77-614(c), Muir never amended his petition to allege an equal-protection violation. In addition, the district court found his brief insufficient to present an equal-protection challenge.
But we need not make the call here about whether Muir’s pleadings are adequate because his equal-protection claim fails on its merits. To show an equal-protection violation, Muir must first demonstrate that the classification results in different treatment of arguably indistinguishable classes of people. Even if the groups are indistinguishable, Muir must show that the differences in treatment have no rational basis. (No argument has been made here for strict or intermediate scrutiny.) See Village Villa, 296 Kan. at 324; Downtown Bar and Grill v. State, 294 Kan. 188, 194, 273 P.3d 709 (2012).
The agency responds that there is a valid legislative puipose here: Married people get greater exemptions from available income in part because the income of the non-institutionalized spouse itself may be considered in determining Medicaid eligibility. For unmarried and divorced individuals, only the income of the institutionalized person is considered.
We are not sure here that truly indistinguishable classes of people have been identified. Even if they have, however, there is a rational basis for the state’s policy. See Tarin v. Commissioner of the Division of Medical Assistance, 424 Mass. 743, 756, 678 N.E.2d 146 (1997). Government decisions to spend money to improve the public welfare in one way and not another are generally entitled to a strong presumption of constitutionality. Mathews v. DeCastro, 429 U.S. 181, 185, 97 S. Ct. 431, 50 L. Ed. 2d 389 (1976).
Conclusion
Muir’s case is easy to sympathize with. Through no fault of his own, he finds himself disabled, in a long-term-care facility, and in need of state financial assistance to pay the costs of his care. He had purchased disability insurance to help support himself and his family, yet the agency decision at issue here has required that all of the insurance benefits be paid for his care and none be paid for the support of his ex-wife and children.
Congress and the Kansas Legislature must consider cases like this, as well as all of the other needs of the state and nation. They must then choose programs and rules that will serve all of us. In doing so, they make choices that affect people like Patrick Muir and his family.
Our court’s job is to determine what the rules are, not to determine what the policy should be. In this case, the state agency fairly applied the rules to Muir’s situation. We have carefully reviewed the arguments he has made, but we find no error in the agency decision or in the district court’s judgment affirming it.
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Green, J.:
Aten J. Wines was charged with driving while under the influence of alcohol — third offense (DUI) and with refusing a preliminary breath test for conduct occurring on January 7, 2012. Following a bench trial, Wines was found guilty of DUI and refusing a preliminary breath test. The trial court determined that Wines’ current DUI conviction was his third. The penalty for a third DUI conviction under K.S.A. 2011 Supp. 8-1567(b)(l)(D) is a felony when a person has a previous DUI conviction within the preceding 10 years of the person’s current DUI offense. On appeal, Wines contends that K.S.A. 2011 Supp. 8-1567 is unconstitution ally vague because one of his previous DUI convictions — a December 2001 DUI diversion agreement in Overland Park, Kansas— should not have been included in determining whether his third-time DUI offense was a felony because it did not occur within 10 years from his current DUI offense of January 7, 2012.
Nevertheless, when it is reasonably possible to interpret statutes in a manner that avoids an unnecessary decision as to their constitutionality, an appellate court should not reach the constitutional contentions of the parties. Because Wines had another DUI conviction, other than the one he complains about, within 10 years of his January 7, 2012, DUI offense, we need not address his constitutional question. Because only one DUI conviction within the preceding 10 years is required under K.S.A. 2011 Supp. 8-1567(b)(1)(D) and because Wines had another DUI conviction, other than the one he complains about, within 10 years from his current DUI offense, we affirm.
Wines was charged with a third-offense DUI and with refusing a preliminary breath test for conduct which occurred on January 7,2012. The written complaint alleged that Wines had two or more previous DUI convictions.
Wines’ presentence investigation report listed two prior DUI convictions: a DUI conviction in Overland Park, Kansas, on August 14, 2002, and a DUI conviction in Lawrence, Kansas, on September 19, 2002.
Before sentencing, Wines challenged the constitutionality of K.S.A. 2011 Supp. 8-1567. Wines contended that K.S.A. 2011 Supp. 8-1567 was unconstitutionally vague. Wines maintained that his 2001 DUI diversion should not have been considered because it was outside the 10-year look-back period. As a result, Wines argued that he should not have been charged with a third-offense DUI felony. Instead, he contended that he should have been charged with a third-offense DUI misdemeanor.
On the other hand, the State argued that under K.S.A. 2011 Supp. 8-1567(j)(l) and (2), when determining whether a conviction is a first, second, third, or subsequent conviction, a violation of a city ordinance or. entering into a diversion agreement shall be taken into account. The State noted that although Wines entered into the diversion agreement on December 12, 2001, his diversion agreement was later revoked and he was convicted of DUI on August 14, 2002. The State further pointed out that Wines was also convicted of another DUI on September 19,2002. The State maintained that Wines was charged with a third-offense DUI felony because he had at least one previous DUI conviction within 10 years from his current DUI offense.
At sentencing, the trial court determined that Wines had been properly charged with a felony as a third-time DUI offender. The trial court further ruled that it was the date of the Overland Park, Kansas, conviction that counted and not the date of Wines’ December 2001 diversion agreement.
Did the Trial Court Err in Classifying Wines’ Third DUI Conviction as a Felony Rather Than a Misdemeanorp
On appeal, Wines seems to argue that if the trial court had determined that his conviction date for his Overland Park, Kansas, diversion agreement was December 12, 2001, instead of determining August 14,2002, as his conviction date for his revoked diversion agreement, he would not have had a DUI conviction within 10 years from his current DUI offense of January 7, 2012. As a result, Wines contends that he should have been convicted of a third-offense DUI misdemeanor under K.S.A. 2011 Supp. 8-1567(b)(1)(C). For this reason, Wines argues that K.S.A. 2011 Supp. 8-1567 is unconstitutionally vague.
Whether a statute is unconstitutionally vague is a question of law over which appellate review is de novo and unlimited. Appellate courts presume statutes are constitutional and must resolve all doubts in favor of a statute’s validity. Courts must interpret a statute in a way that makes it constitutional if there is any reasonable construction that would maintain the legislature’s apparent intent. State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013). Moreover, when there is a valid alternative ground for relief, courts should construe statues to avoid decisions as to their constitutionality:
“The Court will not pass upon a constitutional question although properly presented by the record, if there is also present some other ground upon which the case may be disposed of. . . . Thus, if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of statutory construction or general law, the Court will decide only the latter.” Asktvanderv. Valley Authority, 297 U.S. 288, 347, 56 S. Ct. 466, 80 L. Ed. 688 (1936) (Brandéis, J., concurring).
See also State v. Schad, 41 Kan. App. 2d 805, 807, 206 P.3d 22 (2009) (“[Wjhen a valid alternative ground for relief exists, an appellate court need not reach the constitutional contentions of the parties.”).
As stated earlier, Wines contends that the date of his DUI diversion agreement should control even though his diversion agreement was later revoked and he was convicted of DUI on August 14, 2002, based on die facts contained in his December 2001 diversion agreement.
In State v. Tims, 49 Kan. App. 2d 845, 851, 317 P.3d 115 (2014), this court stated drat “K.S.A. 2011 Supp. 8-1567 ... is a recidivist statute providing for an enhanced severity in charge and sentence if the offender has previous DUI convictions.” The pertinent part of that statute states as follows:
“(b)(1) Driving under the influence is:
(C) on a third conviction a class A, nonperson misdemeanor, except as provided in subsection (b)(1)(D). . . .
(D) on a third conviction a nonperson felony if the person has a prior conviction which occurred within the preceding 10 years, not including any period of incarceration.
“(j) For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:
(1) 'Conviction’ includes being convicted of a violation of this section or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging a violation of this section;
(2) ‘conviction’ includes being convicted of a violation of a law of another state or an ordinance of any city, or resolution of any county, which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution;
(3) only convictions occurring on or after July 1, 2001, shall be taken into account when determining the sentence to be imposed for a first, second, third, fourth or subsequent offender . . . .” K.S.A. 2011 Supp. 8-1567.
In determining prior convictions, it is the date the current offense was committed and not the date of the conviction that triggers the look-back period. See State v. Bell, 30 Kan. App. 2d 395, 396-97, 42 P.3d 749, rev. denied 274 Kan. 1114 (2002); City of Chanute v. Wilson, 10 Kan. App. 2d 498, 500, 704 P.2d 392, rev. denied 238 Kan. 877 (1985). In this case, the look-back period is 10 years.
As stated in the previous subsections to K.S.A. 2011 Supp. 8-1567, a third-time DUI offense can be either a class A misdemeanor or a felony, depending upon whether at least one of the two previous convictions occurred within 10 years of the current DUI offense. For example, K.S.A. 2011 Supp. 8-1567(b)(l)(C) states that driving under the influence is a class A, nonperson misdemeanor on a third DUI conviction, except as provided under subsection K.S.A. 2011 Supp. 8-l567(b)(l)(D).
Under subsection K.S.A. 2011 Supp. 8-1567(b)(l)(D), a third DUI conviction is a nonperson felony when a “person has a prior conviction which occurred within the preceding 10 years, not including any period of incarceration.” Thus, if a person has two previous DUI convictions and neither DUI conviction occurred within 10 years of the current DUI offense, tire third DUI conviction would be a class A misdemeanor. K.S.A. 2011 Supp. 8-1567(b)(1)(C). Nevertheless, if at least one of the two previous DUI convictions, which occurred after July 1, 2001, was within 10 years of the current DUI offense, the third DUI conviction would be a felony. K.S.A. 2011 Supp. 8-1567(b)(l)(D).
Wines’ diversion agreement, which he entered into on December 12, 2001, was not within the 10 years of his January 7, 2012, DUI offense. Nevertheless, when his Overland Park, Kansas, diversion agreement was revoked, Wines was convicted of DUI in Overland Park, Kansas, on August 14, 2002. Under K.S.A. 2011 Supp. 8-1567(j)(2), the conviction following the revocation of Wines’ diversion would count as a conviction:
“(j) For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section:
(2) ‘conviction’ includes being convicted of a violation of .■. . an ordinance of any city . . . which prohibits the acts that this section prohibits or entering into a diversion agreement in lieu of further criminal proceedings in a case alleging a violation of such law, ordinance or resolution.” (Emphasis added.) K.S.A. 2011 Supp. 8-1567(j)(2).
As previously stated, the trial court ruled that August 14, 2002, would be Wines’ conviction date for his revoked Overland Park, Kansas, diversion agreement, and not the date of Wines’ December 12, 2001, diversion agreement. Thus, the conviction date of August 14, 2002, would be within 10 years of his current DUI offense of January 7, 2012.
Wines does not challenge that his current DUI offense of January 7, 2012, would be his third DUI conviction. See K.S.A. 2011 Supp. 8-1567(j)(l). Instead, Wines argues that the trial court erred in ruling that tire date of his Overland Park, Kansas, DUI conviction on August 14, 2002, would count rather than dre date of his DUI diversion agreement. He contends drat his December 12, 2001, DUI diversion agreement should have been used as his conviction date for his revoked DUI diversion agreement. This date would have put his Overland Park, Kansas, DUI conviction outside the 10-year look-back period. Thus, Wines argues that it should not have been used to enhance his conviction to a felony.
Indeed, there is some statutory support for Wines’ position. K.S.A. 2011 Supp. 8-1567(j)(l) states that a conviction includes “entering into a diversion agreement in lieu of further criminal proceedings.” If tire trial court had ruled that the date of his Overland Park, Kansas, diversion agreement, December 12, 2001, controlled his conviction date, Wines’ Overland Park, Kansas, DUI conviction would not have occurred within 10 years from his current DUI offense of January 7, 2012.
Nevertheless, we need not address Wines’ constitutioiral challenge to K.S.A. 2011 Supp. 8-1567. Moreover, we will not address whether the trial court erred in ruling that the date of Wines’ Overland Park, Kansas, DUI conviction on August 14, 2002, controlled his conviction date instead of the date when he entered into his diversion agreement on December 12, 2001, because a valid alternative ground exists on which this case may be decided. Here, only one DUI conviction within 10 years of Wines’ current offense of January 7, 2012, was required for him to be guilty of a felony as a third-time DUI offender under K.S.A. 2011 Supp. 8-1567(b)(1)(D). Moreover, Wines was convicted of DUI in Lawrence, Kansas, on September 19, 2002, which was within 10 years of his current offense of January 7, 2012. Thus, Wines’ September 19, 2002, DUI conviction alone was sufficient to enhance Wines’ sentence from a misdemeanor to a felony.
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Pierron, J.:
Veronica Ribeau appeals the order of the Workers Compensation Board (Board) denying her claim for compensation for an alleged peanut and nut allergy arising out of and in the course of her employment at Russell Stover Candies (RSC). Ribeau argues the Board erred in finding she had failed to prove the existence of the peanut and nut allergy and failed to establish a causal connection between the allergy and her work at RSC. Ribeau also argues that RSC should be estopped from denying foe existence of her work-related allergy where it terminated her employment at RSC due to the allergy. We affirm.
Ribeau is a 50-year-old woman with a high school education and no specialized vocational training. She worked as a cook and service worker for about 4½ years at RSC’s candy manufacturing plant in Iola, Kansas. Ribeau testified that as part of her job duties, she worked with peanuts and nuts. She denied that she had any food allergies before she began working at RSC. She claims she began developing symptoms after she was accidentally sprayed in foe face with what she believed to be a combination of metrin (soybean-based) oil and peanut oil, which was used to lubricate belts and trays at foe plant. Ribeau stated that after she was sprayed in the face, she experienced symptoms such as dizziness, lighfoeadedness, headache, and burning of her eyes, nose, and mouth. She reported the accident to a supervisor and was told to use foe eye wash station. The plant nurse gave her Benadryl and told her lie down for a while. Ribeau left work early that day. She returned to work the next day.
Ribeau testified that from the date of the accident around December 2006 until she was terminated from her employment at RSC on December 8, 2008, she experienced symptoms such as dizziness, lightheadedness, headache, rash, and vomiting on days she worked with nuts. Ribeau reported these symptoms to her supervisors and the plant nurse, who told her to take ibuprofen and Benadryl and to make sure she got off the plant floor if nauseated. She estimated that she vomited at work at least 30 to 40 times. Ribeau stated she began treatment with her family doctor, who told her to take Benadryl and carry an epi-pen in case she had a bad reaction. Ribeau reported this treatment to RSC but allegedly continued to work with nuts and continued to experience symptoms.
Ribeau moved to a different town and changed family doctors to Dr. Amy Madril. Dr. Madril testified that some time after October 2008, her office received a phone call from somebody stating that Ribeau had been sent home from work at RSC because she had a reaction working with cashews. The caller asked for a referral to an allergy specialist. Dr. Madrifs office records do not indicate whether the call was made by Ribeau, RSC, or someone else. Dr. Madril made a referral to Dr. Michael Baker, an ear/nose/throat doctor who practiced allergy medicine.
Dr. Baker testified he saw Ribeau on December 2, 2008, and took her medical history. Ribeau told Dr. Baker she had been sprayed in tire face with a combination of metrin oil and peanut oil and thereafter began having increased reactions to peanuts and nuts. Over the past 2 years, Ribeau was no longer able to eat peanut butter because it caused her throat and chest to tighten and swell. Based on Ribeau’s self-reported medical history of reactions after exposure to peanuts and nuts, most recently a reaction 2 weeks earlier while working on the pecan and cashew line at RSC, Dr. Baker diagnosed Ribeau with a peanut and nut allergy. By history, Dr. Baker also diagnosed Ribeau with recurrent angioedema (swelling). Based on Dr. Baker’s findings, Dr. Madril agreed with the peanut and nut diagnosis.
Also based on Ribeau’s self-reported history, Dr. Baker believed her peanut and nut allergy had been caused by her exposure to peanuts and nuts during her work at RSC. Dr. Baker explained that susceptible individuals can develop allergies if exposed to an allergen over a period of time. As to causation for a newly-developed allergy, Dr. Baker explained generally that the only way to determine causation was to examine a patient’s history of exposures and reactions. He acknowledged it was possible that Ribeau developed her allergies due in part to exposure to peanuts and nuts at places other than RSC. Dr. Madril agreed there was no way to determine causation of a newly-developed allergy except for the timing of symptom development. However, she did not give a specific opinion as to whether Ribeau’s work at RSC caused the allergies.
In addition to taking Ribeau’s medical history, Dr. Baker performed a physical examination, and the results were normal. Dr. Baker also performed a blood test to screen for the six most common food allergies — milk, eggs, wheat, soy, com, and peanut. The results of the blood test were normal, but Dr. Baker stated that a false negative was possible and that Ribeau’s self-reported medical history still indicated a peanut and nut allergy.
Dr. Baker was contacted by an RSC representative concerning Ribeau’s allergies and possible accommodations that RSC could make. Dr. Baker told RSC that Ribeau needed to avoid peanuts and nuts, but RSC stated there was nut dust in the plant and that it would be impossible for Ribeau to avoid all contact with nuts even if she wore a protective mask and gloves. Dr. Baker later learned Ribeau was terminated from her job at RSC on December 8, 2008, due to RSC’s inability to accommodate her peanut and nut restrictions.
In January 2009, Ribeau went to Dr. Pedro Murati for an independent medical evaluation. Based on Ribeau’s self-reported medical history, Dr. Murati diagnosed her with a peanut allergy. Dr. Murati also performed a physical examination and found Ri-beau had facial puritis, although he did not specifically find the puritis to be allergy-related. Dr. Murati concluded within a reasonable degree of medical probability, that Ribeau’s allergy was a direct result of working with peanuts and nuts at RSC. He recommended Ribeau avoid peanut products and receive a full evaluation from an allergist.
In June 2009, Ribeau saw Dr. Daniel Stechschulte, an allergist at the University of Kansas Medical Center. According to his reports, Dr. Stechschulte performed skin tests on Ribeau for common allergies, including peanuts and walnuts, but all results were negative. He recommended further blood testing for possible peanut and nut allergies, testing for sensitivity to metrin oil, and testing for other possible causes of the swelling and other symptoms Ri-beau was experiencing. The additional blood tests for peanut and nut allergies were performed and came back negative. Dr. Stechs-chulte died in July 2011 and did not testify about his evaluation of Ribeau.
In late 2009, Dr. Stechschulte arranged a hypersensitivity skin test for Ribeau’s reaction to metrin oil, with follow-up to be performed by Dr. Madril. At the first follow-up appointment, Ribeau complained she was itchy and irritated all over, not necessarily just around the skin test patches. Dr. Madril noted no obvious skin reaction at the test sites. Three days later, at the second follow-up appointment, Ribeau complained of headache, weakness, nausea, vomiting, and general malaise. Dr. Madril again noted no obvious skin reaction at the test sites but gave Ribeau a steroid injection in case she was having a more generalized reaction to the allergy testing. Dr. Madril stated that on both dates there was no objective indication of allergic reaction, but Ribeau’s subjective complaints indicated possible allergic reaction.
Sometime in 2010, Dr. Murati recommended Ribeau seek desensitization treatment for her peanut and nut allergy. In July 2011, Ribeau was sent to Dr. John Martinez, an allergist at the University of Kansas Medical Center who had taken over responsibility for some of Dr. Stechschulte’s patients. Martinez testified the focus of the appointment was Ribeau’s wish to receive desensitization treatment for her peanut and nut allergy and her desire for testing to prove a metrin allergy. Dr. Martinez informed Ribeau such desensitization treatment was not clinically available and there was no standardized test for metrin allergy. Dr. Martinez also performed a physical exam and diagnosed Ribeau with swelling and hives, but he gave no opinion as to whether those symptoms were allergic reactions. He nonetheless recommended she continue to avoid peanut and nut products. Martinez explained that even though there was no proof Ribeau was truly allergic to peanuts and nuts, she believed she was reacting to them and thus it was appropriate for her to avoid those products.
In August 2011, Ribeau went for a second appointment with Dr. Murati to obtain an impairment rating. Dr. Murati noted that Ri-beau’s June 2009 tests for peanut and nut allergies were negative but Ribeau reported considerable difference in symptom frequency since eliminating those foods from her diet. Dr. Murati performed a physical examination of Ribeau and found normal results. He placed a work restriction on Ribeau to avoid peanuts and nuts. Dr. Murati reaffirmed his original diagnosis of peanut and nut allergy based on Ribeau’s self-reported medical history and found within a reasonable degree of medical probability that Ri-beau’s allergy was a direct result of her work with peanuts and nuts at RSC. Dr. Murati stated his causation determination was based on the fact Ribeau was exposed to peanuts and nuts at RSC and thereafter began developing symptoms. On cross-examination, Dr. Murati acknowledged Ribeau could have been exposed to peanuts and nuts anywhere, not just through her work at RSC.
Based on tire diagnosis of peanut and nut allergy, Dr. Murati found that Ribeau sustained a 5% whole person impairment according to the AMA Guides to the Evaluation of Permanent Impairment, p. 280, table 2 (4th ed. 1993) (skin disorders). On cross-examination, Dr. Murati acknowledged that the Guides did not specifically cover allergies.
Ribeau met with two different vocational specialists for a task and wage analysis. Karen Terrill identified 34 essential job tasks performed by Ribeau, 15 of which she could not perform under the peanut and nut restriction, for a 44% task loss. Since Ribeau was not working, she suffered a 100% wage loss. Based on Terrill’s report, Dr. Murati agreed that Ribeau had a 44% task loss due to the peanut and nut restriction. '» ■
Steve Benjamin identified 38 essential job tasks performed by Ribeau, 7 of which she could not perform under the applicable restriction, for an 18.4% task loss. Ribeau was not working and thus suffered a 100% wage loss. However, Benjamin believed Ri-beau could reenter the labor market at an entry level wage. If so, Ribeau would suffer a 23.4% wage loss from her earnings at RSC.
Ribeau testified that after she was terminated from RSC, she had been unable to find work that did not involve contact with peanut or nut products. She stated she took precautions to avoid such products in her daily life by reading the labels on everything she ate and all cleaning and personal products she used. Despite these precautions, she continued to experience allergic reactions one to four times per week, which were severe enough to interfere with her daily life. Ribeau denied she had these allergy symptoms before she began working at RSC and coming into constant physical contact with peanuts and nuts. She acknowledged she had contact with peanut and nut products at places other than RSC before her accident around December 2006. She also acknowledged she continued to have contact with those products at places other than RSC after the accident and after she was terminated from her employment at RSC.
Ribeau submitted a claim for workers compensation to the administrative law judge (ALJ), arguing she had developed a peanut and nut allergy out of and in the course of her employment at RSC and had been unable to work since her termination at RSC. She contended she was eligible for 72% work disability based on a 44% task loss and 100% wage loss. RSC argued Ribeau had failed to prove the existence of an injury because all objective testing for peanut and nut allergies was negative. Furthermore, Dr. Madril, Dr. Baker, and Dr. Murati’s diagnoses of peanut and nut allergy wei'e based solely on Ribeau’s self-reported medical history and not on any contemporaneous medical evidence that Ribeau was suffering an allergic reaction to peanuts or nuts. RSC also argued the doctors’ determinations that Ribeau’s alleged allergy was caused by her exposure to peanuts and nuts at RSC was factually unsupported and logically flawed.
The ALJ denied Ribeau’s claim. The ALJ found Ribeau had failed to prove the existence of a true allergy to peanuts, nuts, or metrin oil and had failed to prove the required causal connection between her alleged allergy and her work at RSC. The ALJ noted that all objective tests were negative for peanut, nut, and metrin allergy, and no doctor who had examined Ribeau ever documented a physical reaction to peanut or nut products. The doctors who diagnosed Ribeau with an allergy did so based solely on Ribeau’s self-reported, uncorroborated history of exposures and reactions. Thus, the doctors had no factual basis for their diagnoses of peanut and nut allergy. Likewise, there was no evidence in the record of the quantity or quality of Ribeau’s exposure to peanuts and nuts at RSC and no basis for the doctors’ conclusion that Ribeau’s purported allergy was caused by exposure at RSC.
Ribeau appealed the ALJ’s decision to the Board, which affirmed the decision and adopted the ALJ’s analysis in its entirety. The Board found particularly persuasive that no doctor who examined or treated Ribeau ever documented a physical reaction to her alleged peanut and nut allergy. Furthermore, no doctor related Ri-beau’s ailments to the 2006 exposure to metrin oil or diagnosed Ribeau as having a metrin oil allergy. The Board acknowledged that while physical findings of an allergic reaction are not necessary to meet the definition of “injury” under the Workers Compensation Act, “there needs to be some evidence that [Ribeau’s] allergy actually exists. This record, absent [Ribeau’s] allegations, contains no such evidence.”
Ribeau timely petitioned this court for judicial review of the Board’s decision.
We first turn to the question of whether the Board erred in finding Ribeau had failed to prove an injury arising out of and in the course of her employment at RSC. We find no error in the Board’s decision.
Appellate review of a Workers Compensation Board’s decision is governed by the Kansas Judicial Review Act (KJRA), K.S.A. 2013 Supp. 77-601 et seq.; K.S.A. 2013 Supp. 44-556(a); K.S.A. 2013 Supp. 77-603(a). The scope of judicial review is limited by K.S.A. 2013 Supp. 77-621. An appellate court may review the Board’s legal conclusions and may conduct limited review of the Board’s factual findings. K.S.A. 2013 Supp. 77-621(c)(4),(c)(7), and (d).
The statute at the heart of this case is K.S.A. 2008 Supp. 44-501(a). It provides in relevant part:
“If in any employment to which the workers compensation act applies, personal injury by accident arising out of and in the course of employment is caused to an employee, the employer shall be liable to pay compensation to the employee in accordance with the provisions of the workers compensation act. In proceedings under tire workers compensation act, the burden of proof shall be on the claimant to establish the claimant’s right to an award of compensation and to prove the various conditions on which tire claimant’s right depends.”
In other words, a claimant seeking compensation under the Workers Compensation Act has the burden to prove, as a factual matter, that (1) he or she was injured; and (2) there was a causal connection between the claimant’s injury and his or her employment, both as to the nature and timing of the injury. See Rinke v. Bank of America, 282 Kan. 746, 752, 148 P.3d 553 (2006) (injury arises “out of’ employment if it arises out of the nature, conditions, obligations, and incidents of the employment, and “in the course of’ employment if it happened while the claimant was at work in the employer’s service); K.S.A. 2008 Supp. 44-508(e) (injury is not deemed to have been directly caused by the employment where the employee suffers disability as a result of the natural aging process or by the normal activities of day-to-day living).
Ribeau argues the Board erred in finding she had failed to prove the existence of her peanut and nut allergy and had failed to establish a causal connection between the allergy and her work at RSC. As to the existence of the allergy, Ribeau points to her own testimony that she suffered immediate adverse reactions after being sprayed in the face with metrin/peanut oil. She claims RSC never disputed the existence of her subsequent allergic reactions and even terminated her because she could not perform her job duties due to the reactions. She also claims patient history is the “gold standard” for allergy diagnosis. Thus, the doctors’ diagnoses of peanut and nut allergy based on her self-reported history are reliable evidence of the existence of the allergy, notwithstanding that none of the doctors ever noted a physical symptom linked to allergy and all objective testing came back negative. As to causation, Ribeau argues it is medically accepted practice to determine causation based on a patient’s histoiy. Thus, the doctors’ testimonies that her allergy was caused by her work at RSC is persuasive.
RSC argues the Board correctly found Ribeau had failed to prove the existence of a peanut and nut allergy and failed to establish a causal connection between the alleged allergy and her work at RSC. As to the existence of the allergy, RSC denies Ribeau’s assertion that her history of exposure and reactions is uncontrov-erted. RSC argues the only evidence of Ribeau’s purported reactions is her own testimony and self-serving statements to doctors. RSC points out that none of tire doctors who treated or examined Ribeau ever documented an objective physical reaction attributable to her alleged peanut and nut allergy. RSC also emphasizes that all objective testing came back negative.
As to causation, RSC contends there is no evidence in tire record as to the quantity and quality of Ribeau’s exposure at RSC. Furthermore, Ribeau admitted she had contact with peanuts and nuts at places other than RSC. Thus, she failed to prove her alleged allergy was caused by her employment at RSC rather than her admitted frequent exposure to peanuts and nuts at other places during the course of her lifetime. RSC also claims the doctors’ causation determinations are not reliable because those determinations are based on the post hoc ergo propter hoc (after this, therefore because of this) logical fallacy. Finally, RSC argues in the alternative that even if Ribeau suffered an injury from her exposure to peanuts and nuts at RSC, the injury is temporary in nature and not a ratable condition. Therefore, Ribeau is not entitled to an award of work disability, permanent partial disability, or permanent total disability.
An appellate court reviews a challenge to the Board’s factual findings in light of the record as a whole to determine whether the findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A. 2013 Supp. 77-621(c)(7). Although not statutorily defined, “substantial evidence” refers to such evidence as a reasonable person might accept as being> sufficient to support a conclusion. Herrera-Gallegos v. H & H Delivery Service, Inc., 42 Kan. App. 2d 360, 363, 212 P.3d 239 (2009). “ ‘[I]n light of tlie record as a whole’ ” is statutorily defined as meaning:
“[T]lie adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any party that detracts from such finding as well as all of the 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 the presiding officer who personally observed die 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, die court shall not reweigh die evidence or engage in de novo review.” K.S.A. 2013 Supp. 77-621(d).
Under this standard of review, we must determine whether the evidence supporting the Board’s decision has been so undermined by cross-examination or other evidence that it is insufficient to support the agency’s conclusion. Herrera-Gallegos, 42 Kan. App. 2d at 363.
When reviewing the record as a whole, there is substantial evidence supporting tire Board’s factual finding that Ribeau failed to prove the existence of an injury, i.e., a peanut and nut allergy. All of the objective testing performed — the blood test administered by Dr. Baker in December 2008, the skin tests and blood tests administered by Dr. Stechschulte in June 2009, and the skin test administered by Dr. Madril in December 2009 — came back negative for allergy to peanuts, nuts, metrin oil, or any other allergy. Furthermore, none of the doctors who treated or examined Ribeau noted a physical reaction present at the time of treatment or evaluation that was determined to be an allergic reaction. Dr. Baker stated his diagnosis of recurrent angioedema (swelling) was based on Ribeau’s self-reported history, not her present physical condition at the time of the exam. Dr. Murati did diagnose Ribeau with facial puritis based on a physical examination, but he never specifically found the puritis was allergy-related. Dr. Madril did not note any physical allergic reactions during the skin test for sensitivity to metrin oil, although she gave Ribeau a steroid shot based on her subjective complaints. Finally, although Martinez performed a physical examination and diagnosed Ribeau with swelling and hives, he gave no opinion as to whether those symptoms were allergic reactions.
On the other hand, Dr. Baker, Dr. Madril, and Dr. Murati all diagnosed Ribeau with a peanut and nut allergy based on her self-reported history of exposures and reactions. However, diere is nothing in the record to corroborate Ribeau’s history except her own testimony. It is notable that although Ribeau testified she regularly got sick at work, including rash and vomiting, and reported these symptoms to her supervisors and the plant nurse, the record contains no testimony from her supervisors or the plant nurse. Although RSC apparently terminated Ribeau because it could not accommodate the peanut and nut restrictions that Dr. Baker advised, the record contains no information as to whether RSC actually acknowledged the existence Ribeau’s allergic reactions or whether it was merely taking precautions to avoid liability in case Ribeau did have an allergy. In these circumstances, the evidence detracting from the Board’s finding Ribeau had failed to prove the existence of an injury does not so undermine the evidence supporting its finding that the Board’s conclusion must be reversed.
Turning to the Board’s factual finding that Ribeau failed to prove a causal connection between the alleged allergy and her work at RSC, the record as a whole supports this conclusion. Ribeau admitted she had been exposed to peanuts and nuts outside of RSC throughout the course of her life. Furthermore, the record contains no evidence about the quantity and quality of Ribeau’s exposure at RSC, aside from generic statements that there was nut dust in the plant and one comment by someone at RSC that Ribeau could not totally avoid exposure to peanuts and nuts even by wearing a protective mask and gloves.
In summary, the Board’s factual findings that Ribeau failed to prove the existence of an injury and failed to prove a causal connection between her alleged injury and her work are supported by substantial competent evidence. Thus, the Board did not err in concluding Ribeau had failed to prove a compensable injury under the Workers Compensation Act.
We next consider the question of whether RSC.should be equitably estopped or quasi-estopped from denying the existence of Ribeau’s alleged work-related allergy where it terminated her employment at RSC due to the alleged allergy. We find no basis for the application of equitable estoppel or quasi-estoppel.
Ribeau argues for the first time on appeal that RSC should be equitably estopped or quasi-estopped from denying the existence of her peanut and nut allergy, arising out of and in the course of her employment at RSC, where RSC terminated her employment due to the allergy. Ribeau contends it is inequitable for RSC to claim for purposes of unemployment and wrongful discharge that she has an allergy that cannot be accommodated, and yet deny for purposes of workers compensation that she has a work-related allergy. Ribeau asks us to find she did in fact sustain a work-related injury and remand to the Board with instructions consistent with that finding.
RSC contends that Ribeau’s estoppel argument is fatally flawed for at least two reasons. First, it denies it ever took the position that Ribeau had a work-related injury. While not conceding that Ribeau in fact has a peanut and nut allergy, RSC argues its decision to terminate her employment was a reasonable, responsible precaution in light of the working conditions in the plant and the statement by Dr. Baker that Ribeau should avoid contact with peanuts and nuts. Furthermore, RSC has always denied any causal connection between Ribeau’s alleged allergy and her work at RSC. Second, RSC contends Ribeau has failed to adequately explain how the doctrine of equitable estoppel applies to this situation, RSC specifically argues Ribeau has failed to show how she detrimentally relied on any acts or omissions by RSC.
Since Ribeau fails to explain why this issue should be considered for the first time on appeal, we could decline to consider the issue. See Supreme Court Rule 6.02(a)(5) (2013 Kan. Ct. R. Annot. 39); State v. Breeden, 297 Kan. 567, 574, 304 P.3d 660 (2013). However, we will address the issue in case of review.
Ribeau fails to explain how she was induced by RSC’s acts or omissions to believe certain facts or how she detrimentally relied on those acts or omissions. Thus, she has abandoned her equitable estoppel argument. See Chelf v. State, 46 Kan. App. 2d 522, 535, 263 P.3d 852 (2011) (reciting elements of equitable estoppel); Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013) (argument raised incidentally in a brief and not argued therein is deemed abandoned).
Finally, if we consider Ribeau’s quasi-estoppel argument on the merits, she must show it would be unconscionable for RSC to maintain a position that Ribeau does not have a work-related injury) that is inconsistent with its previous position. See Chelf 46 Kan. App. 2d at 536 (stating that quasi-estoppel involves an assertion of rights inconsistent with past conduct, silence by those who ought to speak, or situations in which it would be unconscionable to permit a person to maintain a position inconsistent with that person’s previous position). Rut as RSC points out, its present position is not inconsistent with its previous position. Ribeau does not cite any evidence in the record showing that RSC ever agreed she has a peanut and nut allergy.
RSC’s decision to terminate Ribeau’s employment based on the peanut and nut restriction advised by Dr. Baker can easily be understood as a prudent decision. The decision was not necessarily tantamount to an agreement that Ribeau in fact has an allergy. Ribeau cites no evidence that RSC ever conceded a causal connection between her alleged allergy and her work at RSC. Thus, Ribeau’s quasi-estoppel argument fails.
For the reason cited above, we affirm the Board’s decision to deny the claim for workers compensation.
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Brazil, J.;
This appeal arises out of a claim made under an accidental death insurance policy. The ultimate issue is whether the insured’s accident was the proximate cause of her deatii. Marie Foster, the insured, tripped over a curb, fell, and broke her hip on August 1, 2009. On August 2, she had hip surgery, and on August 3, she died after suffering cardiac arrest. Marie’s daughter, Tina Foster, made a claim for benefits under Marie’s accidental death policy issued by Stonebridge Life Insurance Company, which Stonebridge denied because it found that Marie’s death was not due to bodily injury. Foster filed suit against Stonebridge, and the district court ultimately entered judgment in favor of Foster for the policy’s accidental death benefits and for attorney fees under K.S.A. 40-256. Stonebridge challenges the district court’s rulings at summary judgment and trial.
We affirm and grant Foster’s motion for appellate attorney fees in the amount of $46,857.50, but we deny her request for costs in the amount of $504.79.
Marie held an accidental death insurance policy issued by Stone-bridge Life Insurance Company with an effective date of May 1, 1991. The policy provided accidental death and dismemberment benefits of $40,000.
On August 1, 2009, Marie accidentally fell outside of her home and suffered a hip fracture, also known as an intertrochanteric femoral fracture. She was transported by ambulance to Shawnee Mission Medical Center, and on August 2, 2009, she had hip surgery. After surgery, Dr. Wade Williams noted that Marie had increasing hypoxia, which Williams initially suspected may be due from over sedation, but she received Narcan and remained hypoxemic. Dr. Williams also noted that Marie had findings of atelectasis/infiltrate in the lower lobes and it was possible Marie aspirated during surgery. “Atelectasis” means “[djecreased or absent air in the entire or part of a lung, with resulting loss of lung volume.” Stedman’s Medical Dictionary 161 (27th ed. 2000). “Aspirate” means “[t]o inhale into the airways foreign particulate material, such as vomi-tas.” Stedman’s Medical Dictionary 156 (27th ed. 2000). Marie was transferred to the intensive care unit..
Marie had a myocardial infarction at approximately 9 p.m. on August 2, the day of her surgery. Approximately 3 hours after her surgery, Marie’s saturation of partial pressure of oxygen (Sp02) rate was 49, which is considered an indicator of aspiration, and she had a drop in hemoglobin. She also had an increase in troponin, a cardiac enzyme used by emergency room doctors to look for evidence of heart attack, and ST elevation on an EKG, both cardiac complications. Orthopedic surgeon Dr. John Pazell, the plaintiffs expert witness, testified that these conditions would cause the heart to function abnormally because it would not be getting the proper amount of oxygen.
On August 3, 2009, Marie was taken to the cardiac catheterization lab and was being prepped for cardiac catheterization and coronary angiography when she coded. Marie died at 12:20 p.m.
At the time of Marie’s fall and death 2 days later, all premiums due under the policy were paid and the certificate of insurance was in full force and effect. Following Marie’s death, Tina Foster, Marie’s beneficiary and the plaintiff in this lawsuit, made a claim for the policy proceeds.
Since Foster filed her claim for benefits, the issue in this case has been whether under the accidental death policy Marie’s fall resulted “directly and independently of all other causes,” as required by the policy. This factual debate has centered on Marie’s preexisting heart conditions.
The documents in Marie’s insurance claim file contained conflicting opinions on the cause of death. The certificate of death completed by Dr. Lawrence Dali listed the manner of death as “natural” and the immediate cause of death as cardiac arrest due (or as a consequence of) myocardial infarction. On the other hand, the proof of death — the attending physician’s statement completed by Dr. Thomas Snodell, Marie’s general practitioner, listed the primary cause of death as “fall” and the secondary or contributory cause of death as “cardiac arrest.”
On November 9, 2009, Shryl Clark, a technical claims specialist for Stonebridge, sent a letter to Dr. Dali, the pronouncing and certifying physician on the death certificate, asking Dr. Dali additional questions about Marie’s death. Specifically, Clark asked Dr. Dali if Marie’s injuries from her fall caused her myocardial infarction and cardiac arrest and if any of the injuries Marie suffered as a result of her fall were the proximate cause of her death. Dr. Dali answered “no” to both questions.
On December 21, 2009, Marie’s claim was sent to Stonebridge’s legal department because Foster had an attorney involved in her benefits claim. On December 24, 2009, Clark recommended denying Foster’s claim for benefits, and claims manager Lauraann Allen followed Clark’s recommendation and sent the denial letter Clark drafted to Foster’s attorney.
On February 16, 2010, Foster filed this lawsuit against Stone-bridge asking for the policy benefits, reasonable attorney fees, and costs. Stonebridge filed a motion for partial summary judgment on attorney fees, which the court denied. Stonebridge then filed a renewed motion for summary judgment on coverage and attorney fees. The court denied the motion, and the case proceeded to a bench trial.
The trial judge found that Marie’s death was covered under the policy and that Stonebridge’s denial was “without just cause or excuse” and, therefore, ordered Stonebridge to pay Foster attorney fees and costs of $41,182.65 pursuant to K.S.A. 40-256. Stone-bridge timely appeals.
Analysis
Denial of Stonebridge’s renewed motion for summary judgment on the coverage issue
This court’s standard of review for a district court’s grant or denial of a motion for summary judgment is well established:
“Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with tire 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.” Miller v. Westport Ins. Corp., 288 Kan. 27, Syl. ¶ 1, 200 P.3d 419 (2009).
To the extent this court must interpret the certificate of insurance in resolving this question, insurance contract interpretation is a question of law. Iron Horse Auto, Inc. v. Lititz Mut. Ins., 283 Kan. 834, 838-39, 156 P.3d 1221 (2007).
Stonebridge argues that its renewed motion for summary judgment should have been granted on the coverage issue because Foster presented no evidence creating a genuine issue of material fact as to whether Marie’s death resulted directly and independently from her August 1, 2009, fall. This argument requires an understanding of the policy language at issue.
Regarding the burden of proof, because Foster sought to recover under the general provisions of the policy, not an exclusion, she had the “burden of proving the injury was of a type included in the general provisions of the insurance contract.” Clardy, Administrator v. National Life & Accident Ins. Co., 1 Kan. App. 2d 1, 5, 561 P.2d 892 (1977); see Kansas Farm Bureau Ins. Co. v. Reynolds, 16 Kan. App. 2d 326, 329-30, 823 P.2d 216 (1991).
The policy provides in relevant part:
“If a Covered Person is:
1. Injured in an accident not covered under Part I or Part II; and
2. not otherwise excluded in the policy, we [Stonebridge] will pay the applicable benefit specified in Part III of the Schedule of Insurance for the appropriate Loss as shown in the Schedule of Losses and Benefits below.”
The definitions section of the policy defines “injured” as “having suffered an injury.”
“Injury” is defined as
“bodily injury caused by an accident occurring while the insurance is in force resulting:
1. within 365 days after the date of the accident; and
2. directly and independently of all other causes,
in any Loss covered by the policy.” (Emphasis added.)
Stonebridge argues that there was no genuine issue of material fact as to whether Marie’s death resulted directly and independently from her August 1, 2009, fall. Stonebridge argues that under Boring v. Haynes, 209 Kan. 413, 496 P.2d 1385 (1972), because Marie’s heart condition was chronic, not dormant, Foster could not show that Marie’s fall aggravated or activated a dormant disease. Therefore, Foster did not present facts sufficient to meet her burden of proof.
Foster argues that the district court correctly denied summary judgment under the “directly and independently” clause because the court had before it Dr. Snodell’s statement that Marie’s fall was the cause of her death, evidence showing that Marie’s fall was the cause of her death, and pre-fall medical records showing that Marie’s heart was functioning normally. Further, Foster argues that the district court found that Dr. Pazell’s testimony that Marie’s heart was asymptomatic was synonymous with “dormancy.”
In ruling on the renewed motion for summary judgment coverage issue, the district judge found:
“Both parties know I must look at the evidence in favor of the plaintiff. As such, the court’s going to deny the summary judgment motion as to the cause of action based on Boring and based on the disputed facts.
“In Pazell’s deposition alone, the doctor talks about that the patient was not in congestive heart failure. That’s on page 16. He gives a conclusion that — on page 23' — if she hadn’t broken her hip, she wouldn’t have had surgery and anesthesia. She wouldn’t have had post-op complications, et cetera. On page 25 is if she would have been having cardiac problems, they would not have cleared her for surgery. That she was asymptomatic, which in the court’s mind can mean dormancy. Although the doctor may not want to give an opinion as to dormancy, he did say she was asymptomatic; that the strain on the heart caused by the fracture a fact, not speculation; and if she had not had the surgery, she would have bled to death.”
The district court’s findings of fact about Dr. Pazell’s deposition are supported by substantial competent evidence in the record. Stonebridge argues, however, that Foster presented no evidence that the fall aggravated or activated a dormant disease as required under Boring. But it is clear the district court found that Foster presented evidence supporting a finding that Marie’s heart problems were dormant. Boring defined “dormant disease” as “ ‘one which is quiescent, passive, resting, or static as opposed to one which is active, lively, or effective.’ ” 209 Kan. at 421. Here, the district court found asymptomatic was synonymous with dormancy. “Asymptomatic” is defined as “neither causing nor displaying symptoms.” Webster’s II New College Dictionary 70 (2001). The district court did not err in finding these terms were synonymous and denying Stonebridge’s renewed motion for summary judgment.
Further, although the district court stated the following findings in ruling on the renewed motion for summary judgment attorney fee issue, they are relevant to the coverage issue as well. The court found: “It appears to the court that [Stonebridge’s employees] relied solely on Dr. Dali’s opinion to the exclusion of all other evidence. There was conflicting evidence as to the cause of death.”
This finding is also supported by substantial competent evidence. Dr. Dali’s opinion and Dr. Snodell’s opinion stated different causes of death. Dr. Dali, the physician who completed the certificate of death and the questionnaire created by Clark stated that the manner of death was natural and that immediate cause of death was cardiac arrest due to myocardial infarction. In contrast, the proof of death — the attending physician’s statement filled out by Dr. Snodell stated that tire-primary cause of death was Marie’s fall and the secondary cause of death was cardiac arrest.
The district court did not err in finding that there was conflicting evidence as to the cause of death which precluded summary judgment. Stonebridge attempts to bolster its argument with testimony from Foster’s expert at trial; however, this testimony was not before the court when it ruled on the renewed motion for summary judgment. Therefore, at the time the district court ruled on Stone-bridge’s renewed motion for summary judgment, the facts were disputed as to the proximate cause of Marie’s death, and the district court did not err in denying Stonebridge’s renewed motion for summary judgment.
The court’s final judgment
Stonebridge next challenges the district court’s final judgment. An appellate court reviews the trial court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the trial court’s conclusions of law. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009). Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Hodges, 288 Kan. at 65. An appellate court has unlimited review of conclusions of law. American Special Risk Management Corp. v. Cahow, 286 Kan. 1134, 1141, 192 P.3d 614 (2008). To the extent this court must interpret the certificate of insurance in resolving this question, insurance contract interpretation is a question of law. Iron Horse Auto, 283 Kan. at 838-39.
Before reaching the parties’ arguments, it is important to understand the disputed issue at trial and on appeal. In determining whether Marie’s fall was covered under the accidental death policy, there was no dispute that Marie’s fall was accidental, that Marie suffered a bodily injury from the fall, or that her death occurred with 365 days of die accident. The only disputed question is whether her death resulted from a bodily injury caused by an accident resulting “directly and independently of all other causes” as required by the policy.
Did the district court err in not making any findings about the state of Marie’s preexisting heart condition at the time of her accident?
Stonebridge first argues that the district court erred because the final judgment’s findings of fact and conclusions of law did not find that Marie’s heart condition was dormant and that her fall activated or aggravated the condition as required for Foster to recover under Boring, which Stonebridge argues is the controlling authority in this case. In Boring, our Supreme Court adopted the following rule:
“In the event an insured sustains physical disability or death resulting from an accidental injury which aggravates or causes a dormant disease or ailment to become active, the disability or death will be regarded as having been caused solely by the injury, so as to render an insurer liable therefor under an accident policy, even though such disability or death might later have resulted regardless of the accident, and even though the accident might not have affected a normal person to the same extent.” Boring, 209 Kan. 413, Syl. ¶ 3.
Stonebridge argues that under Boring, as a matter of law, Foster must show that Marie’s heart condition was dormant. Stonebridge argues the evidence did not support a- finding that Marie’s heart condition was dormant; therefore, the district court erred in ruling in Foster’s favor. But Foster argues that Boring does not control because Marie’s preexisting condition did not play a role in her death. Unfortunately, from the district court judge’s ruling, it is unclear whether she found that Marie’s preexisting heart condition played a role in her death because the judge never explicitly addressed this finding on the record or in her written findings. The district court found on the record:
“[T]he court is going to find that based on the facts presented, the evidence presented, the court finds that the proximate cause of Ms. Foster’s death was the fall and fracture and that the plaintiff died — Ms. Foster died as a result of an accident that caused a hip fracture which required surgery, which caused postoperative complications resulting in a myocardial infarction.”
Further, in the written final judgment the court found in relevant part:
“On September 1, 2009, Marie Foster accidently fell and suffered an intertro-chanteric femur fracture. Marie Foster died on September 3, 2009. Under the facts of this case, Marie Foster’s death was the result of accidental bodily injuiy, as defined in the subject accidental death policy issued to Marie Foster by defendant Stonebridge. As a result, there is coverage under the Stonebridge policy for Ms. Foster’s death.”
Foster actually fell on August 1 and died on August 3, 2009 — not in September.
From these rulings, it is clear that the district court addressed tire correct ultimate factual issue under Kansas law, that is, whether the fall was the proximate cause of Marie’s death. See Boring, 209 Kan. at 421; see also, e.g., Hale v. Brown, 287 Kan. 320, 324, 197 P.3d 438 (2008) (noting that proximate cause is generally a question of fact); 10 Couch on Insurance §§ 141:19 and 141:20 (3d ed. 2005) (noting that whether a preexisting condition precludes recovery is generally a jury question). What is unclear from the final judgment is whether the court found that Marie’s fall was the proximate cause under the Boring rationale, i.e., a dormant preexisting condition was activated by the accident, or instead found that Marie’s preexisting condition was irrelevant to proximate cause in this case.
As Foster points out, the district court invited but did not require the parties to submit proposed findings of fact and conclusions of law. Stonebridge filed a posttrial brief but did not provide the trial court with suggested findings of fact or conclusions of law. Further, Stonebridge did not object to the district court’s findings of fact and conclusions of law and, in fact, submitted the final order in conjunction with Foster’s attorneys.
“Generally, a litigant must object to inadequate findings of fact and conclusions of law to give the trial court tire opportunity to correct them, and in the absence of an objection, omissions in findings will not be considered on appeal. [Citation omitted.] Where no objection is made, this court will presume the trial court found all facts necessary to support its judgment. . . . [Citation omitted.]” Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006).
When the record on appeal does not support such a presumption, however, the appellate court must remand for additional factual findings and legal conclusions. Dragon, 282 Kan. at 356. But in this case, the record makes it clear that the district court judge handling this case from its inception was aware of the Boring decision and considered it throughout this litigation. For example, in denying the renewed motion for summary judgment, the judge specifically stated that she was denying the motion based on Boring and the disputed facts. Therefore, because Stonebridge did not object to the findings and jointly submitted the final order and also because the district court judge was aware of Boring and its potential application in this case, we must presume the trial court found all the necessary facts to support her ruling that Marie’s fall was the proximate cause of her death.
Does the policy language exclude coverage for FosterP
Stonebridge substantively argues that the district court’s final judgment ruling erroneously found that Marie’s death was covered under the policy. Stonebridge argues that Marie’s coronary artery disease was not dormant but active and Marie’s fall did not aggravate or activate the disease; thus, under Boring, Foster cannot prove Marie’s death was caused by accident “directly and independently of all other causes,” as the policy requires.
Stonebridge’s argument on appeal, 'therefore, implicitly argues that the district court erroneously found that Marie’s accident was covered under Boring or, stated another way, that Marie’s fall aggravated or caused a dormant disease or ailment to become active and affected her differently than a normal person. Because Stone-bridge relies on Boring to interpret the “directly and independently of all other causes” policy language, it should be noted that the policy language at issue here is different than the policy language at issue in Boring.
In Boring, our Supreme Court interpreted an accident policy with an exclusion if bodily injuiy was “ ‘caused directly or indirectly, wholly or partly ... by disease.’ ” 209 Kan. at 414. Here, the language at issue is the definition of “injury” as “bodily injury caused by an accident. . . resulting . . . directly and independently of all other causes.” (Emphasis added.) But even broadly worded language similar to that used in Marie’s policy has not been held to exclude coverage in Kansas. Rather, our Supreme Court has looked to whether the beneficiary can show that “ ‘an accidental injury aggravates or energizes a dormant disease or physical ailment the accident may be said to have been the proximate cause of the resulting disability within the terms and meaning of the ordinary accident insurance policy,’ ” as discussed in more detail below. Boring, 209 Kan. at 421 (quoting Williams v. Benefit Trust Life Ins. Co., 200 Kan. 51, 55, 434 P.2d 765 [1967]).
Although the “independently of all other causes” language in Marie’s policy suggests that no other cause can be in play for the insured to be covered under the policy, similar language has not been interpreted that way by our Supreme Court. In Williams v. General A. F. & L. Assurance Corp., 144 Kan. 755, 756, 62 P.2d 856 (1936), die court interpreted similar policy language where the accident policy insured against “ ‘die effects resulting directly and exclusively of all other causes.’ ” (Emphasis added.) The court was charged with interpreting the “ ‘exclusively of all other causes’ ” language and noted tiiat there are two lines of authorities:
“One line of authorities, upon which appellant relies, construes the language used in the policy to mean that if the insured had any disease or physical ailment, from any cause, at the time of the accidental injury for which he seeks to recover under the policy, and is unable to show clearly that such disease or ailment was not reflected in some degree in the injurious results of the accident, there can be no recovery under the policy. Under these authorities it is practically impossible for any but the physically sound to recover on an accident policy containing the language used, or tantamount to that used, in the policy here involved, and they place the burden on plaintiff to show that the full effect of the injury following the accident was independent ‘of any preexisting disease, or bodily infirmity, as a contributing cause thereof.’ [Citations omitted.]
“The other line of authorities, recognizing the fact that many persons not physically sound in every respect carry accident insurance policies, take what seems to us a more rational view and construe the language of the policy to mean that if the accident be shown to be the cause of the injuiy for which the action is brought plaintiff can recover. [Citations omitted.]” Williams, 144 Kan. at 757-58.
Unfortunately, the Williams v. General court never directly stated which line of authority it adopted. See 144 Kan. at 757-58. Instead, the court stated that
“[w]ithout passing upon the accuracy of this classification, most of the courts look to the evidence to see whether the accident caused the injury for which the action was brought. Many of the cases use the term ‘proximate cause,’ as do some of the leading authorities. [Citations omitted.] . . . But, without regard to the characterizing words used, the proper inquiry, and the one usually made, is whether tire injuiy for which suit was brought was caused by the accident.” 144 Kan. at 758.
The court found that this was a juiy question. 144 Kan. at 758.
In Boring, our Supreme Court recognized drat Williams v. General effectively followed the rule “ ‘that where an accidental injuiy aggravates or energizes a dormant disease or physical ailment the accident may be said to have been the proximate cause of die resulting disability within the terms and meaning of tire ordinary accident insurance policy.’ ” Boring, 209 Kan. at 421 (quoting Williams v. Benefit Trust, 200 Kan. at 55). Therefore, even though the language used in tire Williams v. General policy, like the language here, seems to only narrowly provide coverage, the language has not been interpreted so restrictively by our Supreme Court. See Boring, 209 Kan. at 422 (discussing the general rules applied in Rankin); Rankin v. United Commercial Travelers of America, 193 Kan. 248, 251, 392 P.2d 894 (1964) (interpreting an accidental death policy under Ohio law where the policy insured against bodily injuiy “ ‘ “occasioned by the said accident, alone and independent of other causes” ’ ” and applying general rules for recovery to this type of policy); McGirr v. Monumental Life Ins. Co., No. 71,788, unpublished Court of Appeals opinion filed April 14, 1995, slip op. at 2 (applying Boring to determine if a death occurred “independently of any other cause”), rev. denied 257 Kan. 1092 (1995); see also Vakas v. Penn Mut. Life Ins. Co., No. 06-1152-WEB, 2007 WL 2789884, at *9-11 (D. Kan. 2007) (unpublished opinion) (interpreting policy language almost identical to the language at issue in this case and finding that given the interpretation Kansas courts have given this language, summary judgment was inappropriate for either party); 43 Am. Jur. 2d, Insurance § 608, p. 674 (stating that “the phrase ‘directly and independently of all other causes’ as used in an accident policy requires a showing that the accident was the predominant cause of the injury”); 10 Couch on Insurance § 141:10, p. 141-28 (3d ed. 2005) (stating that “[i]n essence, when an accidental injury aggravated a disease and hastens death so as to cause it to occur at an earlier date than it otherwise would have but for the accident, it is the ‘direct and independent cause’ of death.” [Emphasis added.]).
Therefore, because our Supreme Court has liberally interpreted language contained in accidental death policies, tire “directly and independently” language does not always preclude relief when a preexisting condition or the like is present. Accordingly, we must address whether the district court erred in finding that the proximate cause of Marie’s injury was the fall and fracture.
Did the district court err in finding that the proximate cause of Marie’s injury was the accidentP
Proximate cause was the ultimate issue throughout the litigation. Proximate cause is a question of fact. E.g., Hale, 287 Kan. at 324; see also 10 Couch on Insurance, § 141:19 (noting that whether a preexisting condition precludes recovery is generally a jury question). Therefore, this court reviews the district court’s decision to determine whether the trial court’s findings are supported by substantial competent evidence. See McGirr, slip op. at 12 (finding that where the trial court found McGirr’s heart disease was not dormant, the proper inquiry was whether the trial court’s findings are supported by substantial competent evidence).
The initial question arose out of documents contained in Stone-bridge’s claim file asserting conflicting opinions on this issue. As previously stated, the certificate of death listed the manner of death as “natural,” the immediate cause of death as cardiac arrest due to (or as a consequence of) myocardial infarction. On the other hand, the proof of death — the attending physician’s statement listed the primary cause of death as “fall” and the secondary or contributory cause of death as “cardiac arrest.” On November 9, 2009, Clark, for Stonebridge, sent a letter to Dr. Dali, the pronouncing and certifying physician on the death certificate, asking Dr. Dali additional questions about Marie’s death. Specifically, Clark asked Dr. Dali if Marie’s injuries from her fall caused her myocardial infarction and cardiac arrest and if any of tire injuries Marie suffered as a result of her fall were the proximate cause of her death. Dr. Dali answered “no” to both questions.
Stonebridge’s argument centers around Marie’s preexisting heart conditions. Clark testified that the only basis for Stone-bridge’s denial of Marie’s claim was her preexisting coronaiy artery disease. Although Stonebridge pointed out in the district court and on appeal that one of the medical records says Marie “simply tripped, presumably secondaiy to her Parkinson’s,” Stonebridge did not rely on this rationale to deny coverage. In contrast, Clark specifically testified during her deposition that Marie had no illness which caused her to fall. Further, Dr. Pazell, the only expert testifying at trial, testified that he saw no indication that Marie’s Parkinson’s disease played any role in her death.
Turning to Marie’s heart conditions, a history of Marie’s major heart problems is necessary. Prior to her fall, because of Marie’s coronaiy artery disease, she had two myocardial infarctions in December 2007 and March 2008 and had two stents placed in her heart.
Marie’s first cardiac infarction occurred on December 12, 2007. Marie was evaluated in the emergency room at Shawnee Mission Medical Center for chest pain. Dr. Galen Epp diagnosed her with acute myocardial infarction with congestive heart failure. Congestive heart failure is when the heart cannot work hard enough to remove fluids from the body. The doctors put a stent in Marie’s coronaiy artery to hold it open. On December 28,2007, Marie had a follow-up appointment with Dr. Snodell, her general practitioner, and reported that she was doing well, that she did not have significant chest pain, shortness of breath, dizziness, edema, palpitations, or syncope. Dr. Snodell noted that Marie was doing well from a cardiac standpoint. On March 28,2008, however, Marie again went to the emergency room because she had another myocardial infarction associated with congestive heart failure.
In July 2008, Marie had a diagnostic cardiac catheterization and cardiac angiography which showed no evidence of restenosis in the left anterior descending artery, meaning that the “vessel was patent and wide open.” Her ejection fraction was also normal, which means that the muscle of the heart was functioning to push blood out into the body.
In February 2009, Dr. Snodell noted that Marie had congestive heart disease but she felt well, with minor complaints. Dr. Pazell testified that congestive heart failure is chronic. But, in his opinion from Marie’s physical results, she did not have congestive heart failure.
In April 2009, Marie was having chest pain and shortness of breath, so she underwent a treadmill procedure designed to stress the heart. Marie had normal heart function, no arrhythmia, normal blood pressure, and the heart muscle functioned normally with exercise. The test found Marie was a low risk for ischemia. Based on this normal cardiac stress test, Dr. Pazell found that Marie’s coronaiy artery disease was not progressing, it was asymptomatic. He also testified that on the date of her fall, there was no evidence that her coronaiy artery disease had progressed since April 2009.
But, as Dr. Pazell admitted during cross-examination, the fact that one study does not find anything does not mean that a person does not have coronary artery disease. And, 9 days after the stress test, Marie saw her doctor complaining of chest pain which her doctor attributed to atherosclerosis. “Atherosclerosis” is “characterized by irregularly distributed lipid deposits in the . . . arteries, causing narrowing . . . .” Stedman’s Medical Dictionary 162 (27th ed. 2000). Dr. Pazell did, however, reiterate that nothing in the medical records indicated that the medical physicians thought that Marie was in congestive heart failure. .
On August 1, 2009, the day of the fall, when the Kansas City, Kansas, Fire Department ambulance reached Marie, her blood pressure, pulse, respiratory rate, and Sp02 were within normal limits. Dr. Pazell testified that these numbers would not be normal in a person who had active cardiac disease.
In the preoperation consultation notes, Dr. Kevin Ring indicated that at the time of Marie’s fall, Marie suffered no loss of conscious ness, no chest pain, and no shortness of breath. Dr. Pazell testified that these facts indicated that Dr. Ring thought Marie was a good candidate for surgery. Dr. Williams performed a consultation after surgery and noted that, postoperatively, Maria had increasing hypoxia. Initially, Dr. Williams thought this was due to oversedation; however, Marie received Narcan and remained “quite hypoxemic.” Dr. Williams noted that Marie had no illness antecedent to her fall of an acute nature.
Marie’s cardiac infarction occurred at approximately 9 p.m. on August 2, tire day of her hip surgery. Approximately 3 hours after her surgery, Marie had a Sp02 of 49, which is considered aspiration, and also had a drop in hemoglobin. She also had an increase in troponin, a cardiac enzyme used by emergency room doctors to look for evidence of heart attack, and ST elevation on an EKG, both cardiac complications. Dr. Pazell testified that these conditions would cause the heart to function abnormally because it would not be getting the proper amount of oxygen.
On August 3, 2009, Marie was taken to the cardiac catheterization lab and was being prepped for cardiac catheterization and coronary angiography when she coded. Marie died at 12:20 p.m.
At trial, Clark’s deposition and Stonebridge’s claim file — which Clark relied on to evaluate Foster’s claim for benefits — were admitted into evidence. Clark testified in her deposition that she reviewed all the medical records in the claim file and concluded that Marie’s death was not caused by an accidental bodily injury. Clark concluded that Marie’s death was due to coronary artery disease based on the certificate of death stating that Marie had a myocardial infarction and the follow-up questionnaire, both completed by Dr. Dali.
Foster’s attorney cross-examined Clark on the factual distinction that the death certificate listed the cause of death as myocardial infarction not coronary artery disease. He further cross-examined Clark regarding the medical records in the claim file indicating Marie did not have any acute illness before her fall, that less than 4 months before her fall, Marie’s heart was a low risk for ischemia, that Marie’s lungs were clear prior to surgery, that Marie’s heart rhythm was regular, and that she had no shortness of breath or chest pain and was cleared for surgery. Clark testified that before denying coverage, she did not know and she did not consult with anyone about what role the surgical complications of hypoxia, CT finding indicating atelectasis or infiltrates, or possible aspiration may have played in Marie’s death. Foster’s attorney further cross-examined Clark about the anesthesia note from 8 p.m. that says “no complaints or complications” but at 11:05 p.m. says “ORIF left hip with hypoxia” and “low bar or infiltrates on CT.” Further, at trial, Dr. Pazell testified that the medical records were not consistent with Dr. Dali’s finding that there were no complications after Marie’s hip surgery.
Dr. Pazell also testified that Marie’s preexisting heart condition played no role in her death. According to Dr. Pazell, Marie’s condition was not symptomatic and she “could have been expected to live a normal life span, but she fell and broke her hip. Then she had complications from the anesthetic and from surgery and this put a strain on her heart and that caused the problem that killed her.”
Dr. Pazell testified at trial that there was no question that Marie had coronary artery disease at the time of her fall. Dr. Pazell, however, testified that Marie was not suffering from congestive heart failure at the time of her fall. Dr. Pazell testified that Marie had postoperative complications of aspiration and low hemoglobin. He testified that these complications could lead to cardiac arrest, regardless of whether the patient had a preexisting heart condition.
Dr. Pazell was cross-examined with a letter to Foster’s attorney from one of Marie’s doctors. In the letter, Dr. Jhulan Mukarji, the primary cardiologist during the events leading to Marie’s death, stated that based on the current literature, it was difficult to support a direct association between Marie’s injury and the resulting fracture and the myocardial infarction that resulted in her death. The letter went on to say: “There is data which suggests that patients who have coronary artery disease are at risk of acute coronary events including myocardial infarction following surgery. There is very little data which suggests a similar robust association between hip fractures and an acute cardiac event.” Dr. Pazell testified that he did not agree-with these''conclusions. Interestingly, however, it seems that this defense exhibit supports recovery under Boring, but Dr. Pazell continued to assert that the cardiac event was a direct result of the hip fracture, not that the fall activated a dormant condition.
It is clear that there was conflicting testimony regarding whether and to what extent Marie’s preexisting heart conditions contributed to her death. Because it is unclear which rationale the district court relied on to reach its decision, Boring or the rationale that Marie’s death would have occurred independent of her preexisting conditions, both factual scenarios for reaching the district court’s ultimate proximate cause finding must be evaluated to determine if each is supported by substantial competent evidence.
Beginning with the Boring rationale, the factual scenario faced by that court is similar to the factual scenario here. Boring had a medical history of gastrointestinal and cardiac problems, including a myocardial infarction, attacks of cholecystitis, and episodes of tightness in his chest with exercise in the 5 months preceding the accident that resulted in his death. Two weeks before his car accident, however, he was having no gastrointestinal or cardiac symptoms and was doing well. On the day of the accident, Boring was driving when he was struck in the rear by another vehicle. He got out of his vehicle, saw that no one was badly hurt, and suddenly collapsed to the ground. He was taken to the hospital where he was pronounced dead on arrival. The death certificate listed Boring’s immediate cause of death as myocardial infarction due to coronary arteriosclerosis. Our Supreme Court found that these conditions did not preclude recovery under the policy, but rather presented a question of fact on the issue of causation and reversed summary judgment in favor of the insurance company. 209 Kan. at 422.
Similarly, as outlined above, Marie had a history of cardiac problems, but in her cardiac tests prior to her accident, she was not experiencing problems'. The death certificate listed Marie’s immediate cause of death as cardiac arrest due to myocardial infarction. If the district court judge’s decision did in fact rely on Boring’s dormant disease rationale to support its judgment, the decision is supported because there is substantial competent evidence in the record to support a finding that Marie’s dormant heart conditions were activated by her accidental fall and caused her death. Dr. Pazell testified that in his opinion Marie did not have congestive heart failure. He also testified that her coronary artery disease was not progressing, rather it was asymptomatic, and on the date of her fall, there was no evidence that her coronary artery disease had progressed since April 2009.
Stonebridge argues that this case is similar to McGirr, slip op. at 13-15, where a panel of this court found that the district court’s decision upholding the insurer’s denial of the accidental death claim, after discussing Boring, was supported by substantial competent evidence. As the McGirr court noted, however, the proper inquiry for an appellate court is to determine whether the district court’s findings are supported by substantial competent evidence. Slip op. at 12. It is true that there is conflicting evidence on the dormancy of Marie’s preexisting conditions in the record; however, because an appellate court does not weigh conflicting evidence, evaluate witnesses’ credibility, or redetermine questions of fact, the district court’s decision should not be reversed. See In re Adoption of Baby Girl P., 291 Kan. 424, 430-31, 242 P.3d 1168 (2010); McGirr, slip op. at 13-15.
Further, McGirr is factually distinguishable. There, the insured experienced constant chest pain, frequent shortness of breath, and felt like his heart was skipping a beat for 2½ years leading up to his fall. Here, Dr. Pazell testified that Marie’s coronary artery disease was asymptomatic on the date of her fall and there was no evidence that her coronary artery disease had progressed since April 2009.
If the district court relied on the rationale that Marie’s death would have occurred even without the preexisting condition, the evidence supporting this finding is narrower. However, Dr. Pazell explicitly testified to this fact at trial; he testified that Marie’s hip surgery complications could lead to cardiac arrest regardless of whether the patient had a preexisting heart condition. Further, Stonebridge’s claims manager Allen testified that at the time she denied coverage in this case, she was unaware of any evidence that Marie’s preexisting coronary artery disease caused her to fall and the only evidence in the medical records that indicated the disease caused her to have a myocardial infarction was the death certificate.
Therefore, under either potential factual rationale the district court could have used to reach its ultimate proximate cause finding, tire final judgment ruling can be upheld because substantial competent evidence supports the judge’s finding that Marie’s fall was the proximate cause of her death.
Dr. PazelVs expert testimony
Stonebridge argues that Dr. Pazell’s trial testimony went beyond the scope of his expert disclosure pursuant to K.S.A. 2010 Supp. 60-226(b)(6) and his deposition testimony. Although the arguments are not clearly articulated, Stonebridge appears to first argue that the district court abused its discretion in allowing Dr. Pazell to testify regarding whether Marie’s preexisting conditions were dormant. Then, Stonebridge argues that the district court erred by denying its motion for mistrial due to the new and unexpected testimony of Dr. Pazell; Stonebridge argues Dr. Pazell testified for the first time at trial that the status of Marie’s preexisting conditions was irrelevant because the conditions did not play a role in her death. The factual circumstances relating to each challenge are intertwined, so the issues will be addressed together after stating the appropriate standard of review for each challenge.
Standard of review
Stonebridge first argues that the district court abused its discretion in allowing Dr. Pazell to testify regarding whether Marie’s prexisting conditons were dormant. “A trial court has broad discretion regarding the admissibility of expert testimony.” Frans v. Gausman, 27 Kan. App. 2d 518, 527, 6 P.3d 432, rev. denied 270 Kan. 897 (2000). This court must decide if tire court abused its discretion.
Stonebridge then argues that tire district court abused its discretion by failing to grant a mistrial. Unlike in criminal cases where a Kansas statute provides grounds for a mistrial, in a civil case, this court reviews a decision to deny a mistrial for abuse of discretion. Klinzmann v. Beale, 9 Kan. App. 2d 20, 27, 670 P.2d 67 (1983); 7 Kansas Law and Practice, Kansas Trial Handbook § 33:1 (2d ed. 2006).
Applicable law on expert testimony
As Stonebridge points out, K.S.A. 2010 Supp. 60-226(b)(6) requires disclosure of expert testimony before trial:
“(6) Disclosure of expert testimony. (A) In general. A party must disclose to other parties the identity of any witness it may use at trial to present expert testimony.
(B) Required disclosures. Unless otherwise stipulated or ordered by the court, if the witness is retained or specially employed to provide expert testimony in the case, or is one whose duties as the party’s employee regularly involve giving expert testimony, the disclosure must state:
(i) The subject matter on which the expert is expected to testify;
(ii) the substance of the facts and opinions to which the expert is expected to testify; and
(iii) a summary of the grounds for each opinion.”
Did the district court abuse its discretion in alloioing Dr. Pazell to testify regarding whether Marie’s prexisting conditons were dor-mantP
The expert disclosure admitted at Dr. Pazell’s deposition stated:
“In addition to presenting a general discussion about the various ancillary aspects of medicine relevant to this case, at the present time it is anticipated that Dr. Pazell will offer the following opinions in this matter:
A. Marie Foster’s accident fall and injury on August 1, 2009, caused or aggravated, activated, revived, or precipitated her pre-existing heart disease, ailment or condition, and resulted in her death on August 3, 2009.
B. If Marie Foster had not tripped, fallen, and broken her hip, she would not have died.”
In ruling on the renewed motion for summary judgment, the district court found asymptomatic was synonymous with dormancy. “Asymptomatic” is defined as “neither causing nor displaying symptoms.” Webster’s II New College Dictionary 70 (2001). In his written review of Marie’s medical records and during his deposition, Dr. Pazell did not use the word “dormancy,” but his opinion was consistent with disclosure “A” above. In his written review of Marie’s medical records, Dr. Pazell says: “Dr. Mukhari [a cardiologist] did not feel that the fall, fracture, and heart attack resulted in her death. He does, however, note there is data which states that patients who have coronary artery disease are at risk of acute coronary events following surgery.” In his written summary and conclusions, Dr. Pazell noted Marie’s medical history and discussed causation:
“Ms. Marie Foster at the end of July 2009 had coronary artery disease. She had stints [sic]. She had a wildly patent coronary artery and was doing fine. She tripped and fell. She fractured her hip. She sustained an intertrochanteric fracture. She had surgery. After she had surgery, she had a heart attack and died.
“If she had not fallen and broken her hip, she would not have had surgery. If she did not have surgery, she would not have had the heart attack. I believe the cardiologist’s letter supports that conclusion.
“The fact remains if Ms. Foster had not tripped, fallen, and broken her hip she would not have died. The fact remains obvious to anyone. She did not have a cardiac event which caused her to trip and fall. Her death was due to a fractured hip which by necessity had to be fixed. An individual can bleed to death from an intertochanteric hip fracture. The standard of care at this time is to internally fix those fracture as efficaciously as possible, and this was done. The postoperative cardiac event occurred due to the necessity for surgery and anesthetic." (Emphasis added.)
When asked in his deposition to discuss what role the condition of her heart played in causing her death, Dr. Pazell testified:
“A. Clearly, she had had previous abnormalities in her heart. That ceitainly didn’t help the issue. But she was asymptomatic, and she was in good enough shape for Dr. Ring to say, ‘Her lungs are clear', head, eyes, nose, and throat were normal.’ ”
The following questions were also asked:
“Q. Would she have died but for her preexisting heart condition?
“A. I think that’s impossible for me to answer but it’s — it would be speculation.” (Emphasis added.)
He was also asked about tire correlation between elderly people having hip problems and the mortality rate:
“Q. All right. And so as a practical matter, hip fractures, because they are suffered most commonly among the geriatric population, occur in patients that have multiple other medical problems usually. Correct?
“A. Correct.
“Q. All right. And that probably has something to do with the high... mortality rate. Correct?
“A. Correct.”
From Dr. Pazell’s written opinion and deposition testimony, although he did not use the word “dormant,” it seemed that the plaintiff was offering Dr. Pazell’s testimony for the purpose of proving its case under Boring by showing that Marie’s dormant condition was activated by the fall and resulted in Marie’s death. This is in line with expert witness anticipated opinion “A” that Dr. Pazell would offer an opinion that Marie’s “accident fall and injury . . . caused or aggravated . . . her pre-existing heart disease . . . and resulted in her death.” The district court, therefore, did not abuse its discretion in overruling Stonebridge’s objections regarding Dr. Pazell’s testimony on dormancy when it allowed Dr. Pazell to testify at trial that Marie’s coronary arteiy disease was “asymptomatic” and “stable.”
Did the district court abuse its discretion by failing to grant a mistrial?
Stonebridge also argues that the district court erred by denying its motion for mistrial due to the new and unexpected testimony of Dr. Pazell offered for the first time on the day of trial.
But Stonebridge did not contemporaneously object to this testimony at trial as required by K.S.A. 60-404; therefore, Stonebridge failed to preserve this issue for appeal. See State v. King, 288 Kan. 333, 341-49, 204 P.3d 585 (2009). K.S.A. 60-404 provides that a judgment shall not be reversed on account of the “erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to make clear the specific ground of objection.” The court in King acknowledged that “our past decisions may have relaxed the objection requirement in the evidentiaiy context, . . . [but] [fjrom today forward, in accordance with the plain language of K.S.A. 60-404, evidentiary claims . . . must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.” 288 Kan. at 349; see also Hamrick v. Huebner, No. 106,215, 2012 WL 2785930, at *6-7 (Kan. App. 2012) (unpublished opinion) (finding that the issue of the extent of expert witness disclosure was not preserved for appeal because party failed to make a contemporaneous objection at trial as required by K.S.A. 60-404).
Motion under K.S.A. 60-252(c)
Stonebridge argues in its appellant’s brief that the district court erred by denying its motion for judgment on partial findings pursuant to K.S.A. 60-252(c) at the close of Foster’s evidence. Foster argues that Stonebridge never made a motion pursuant to K.S.A. 60-252(c). Stonebridge concedes that it did not raise this issue in its reply brief. Issues not raised before the trial court cannot be raised on appeal; therefore, this issue is not properly before the court and need not be addressed. See In re Care & Treatment of Miller, 289 Kan. 218, 224-25, 210 P.3d 625 (2009).
Attorney fees
Stonebridge argues the district court erred in denying its motion for partial summary judgment and its renewed motion for summary judgment on attorney fees. Stonebridge also argues that the district court erred in entering a judgment for attorney fees against Stone-bridge under K.S.A. 40-256 because Stonebridge’s claim denial was without “just cause or excuse.” When the district court has authority to award attorney fees, “[w]e review the district court’s decision regarding attorney fees under an abuse of discretion standard. [Citation omitted.] The issue is to be determined by the district court based on the facts and circumstances of each case. [Citation omitted.]” Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 242, 49 P.3d 511 (2002).
K.S.A. 40-256 provides:
“That in all actions hereafter commenced, in which judgment is rendered against any insurance company as defined in K.S.A. 40-201 . . . , if it appeaifs] from tire evidence that such company... has refused without just cause or excuse to pay the full amount of such loss, the court in rendering such judgment shall allow the plaintiff a reasonable sum as an attorney’s fee for services in such action, including proceeding upon appeal, to be recovered and collected as a part of the costs.”
“Whether an insurance company’s refusal to pay is without just cause or excuse is determined on the facts and circumstances in each case.” Johnson v. Westhoff Sand Co. 31 Kan. App. 2d 259, 274, 62 P.3d 685, rev. denied 275 Kan. 964 (2003). Our Supreme Court has found that if there is a bona fide and reasonable factual ground for contesting an insured’s claim, there is no failure to pay without just cause or excuse. Koch, Administratrix v. Prudential Ins. Co., 205 Kan. 561, 565-66, 470 P.2d 756 (1970); see Johnson, 31 Kan. App. 2d at 274.
Kansas courts have also recognized, however, that an insurer has a duty to make a good-faith investigation of the facts surrounding the claim. See Watson v. Jones, 227 Kan. 862, 871, 610 P.2d 619 (1980); Brown v. Combined Ins. Co. of America, 226 Kan. 223, 227, 597 P.2d 1080 (1979); Johnson, 31 Kan. App. 2d at 274. “[T]he circumstances are to be judged as they would appear to a reasonably prudent man having a duty to investigate in good faith and to determine the true facts of the controversy.” Watson, 227 Kan. at 871; see Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 261-62, 815 P.2d 550 (1991).
In reviewing this question, this court looks at the circumstances confronting the insurer when the payment of loss is denied. Watson, 227 Kan. at 871; DiBassie v. American Standard Ins. Co. of Wisconsin, 8 Kan. App. 2d 515, 523, 661 P.2d 812 (1983). Because Stonebridge makes no attempt to separate the facts available to the trial court at summary judgment from the facts known at trial, we will only address the district court’s final decision to award attorney fees, not its earlier denial of fees at summary judgment.
After the trial, the court gave its opinion on the record:
“As to the request for attorney’s fees. Pursuant to 40-256, the court is going to grant the same, finding that the insurance company’s refusal to pay was without just cause or excuse.
“The reasoning behind the court’s decision is that the court finds that based on the limited investigation done by the insurance company, the court finds that the insurance company relied on basically two pieces of paper: One being the death certificate, the other being the clarification by Dr. Dali. The failure of the insurance company to further investigate or give any reasonable consideration to the Shawnee Mission medical records, nor understanding them, and the failure to give any reasonable consideration of the information provided by Dr. Snodell, from the testimony the court surmises that the only possible meaning tire insurance company could have for its policy is that an insured must die immediately and as a direct result of the fall.
“One of the concerns of the court was the insurer’s lack of a good faith evaluation when it relies on its employees who are limited to on-the-job training, who have no training in medical or legal terminology at a minimum, who have no printed policy, and rely solely on the common language without any [lability to assess medical terminology against legal standards, which is basically the basis of their jobs.”
Stonebridge argues that the district court erred in awarding Foster attorney fees because Stonebridge’s denial was not without just cause or excuse. Stonebridge argues that at the time it denied the claim, it was faced with two conflicting opinions: one opinion based on the death certificate and follow-up questions asked of Dr. Dali, stating that Marie’s fall did not cause her myocardial infarction and cardiac arrest; and the other opinion based on the proof of death— the attending physician’s statement from Dr. Snodell, stating that the cause of death was the fall and secondaiy cause of death was cardiac arrest. Stonebridge also argues that Dr. Snodell subsequently admitted that he had no basis for the opinions he set forth in the attending physician’s statement.
Foster, on tire other hand, argues that district court properly awarded attorney fees because the denial of her claim was without just cause or excuse. Foster first points out that Stonebridge attempts to attack the trial court’s final judgment by utilizing information gathered after it denied Foster’s claim, specifically an affidavit from Dr. Snodell. Dr. Snodell’s affidavit is dated August 19, 2010, nearly 8 months after Stonebridge’s decision to deny coverage on December 24,2009. Because the circumstances confronting the insurer when payment of loss is denied determines the question of attorney fees, what Stonebridge knew on December 24, 2009, determines the fee question; therefore, Dr. Snodell’s affidavit was irrelevant See Watson, 227 Kan. at 871.
Foster also argues that Stonebridge breached its duty to investigate in good faith. As pointed out by Foster, under Kansas law, an insurance company is not required to pay a claim when there is a good-faith legal or factual reason to deny a claim, but at the same time, the insurer has a duty to make a good-faith investigation of the facts before refusing to pay. See Connor v. Occidental Fire & Cas. Co., 281 Kan. 875, 889-91, 135 P.3d 1230 (2006); Matthews v. Travelers Insurance Co., 212 Kan. 292, 298-300, 510 P.2d 1315 (1973); Brown v. Continental Casualty Co., 209 Kan. 632, 640-41, 498 P.2d 26 (1972); Knuth v. State Farm Mut. Auto. Ins. Co., 30 Kan. App. 2d 184, Syl. ¶ 2, 41 P.3d 287 (2000). “ ‘Good faith on the part of the insurer implies honesty, fair dealing and adequate information.’ [Citation omitted.]” Farmers Ins. Exchange v. Schropp, 222 Kan. 612, 619, 567 P.2d 1359 (1977).
Couch on Insurance provides: “Implicit in the duty to investigate is the requirement that the investigation be adequate and fair. Adequacy and fairness means that the insurer has a duty to diligently search for evidence which supports insured’s claim and not merely seek evidence upholding its own interests.” 14 Couch on Insurance § 207:25, p. 207-41 (3d ed. 2005). Couch lists an example of failure to investigate:
“[A]n insurer [who] was [found] guilty of bad faith where its insured died as result of an accident which caused head injuries and, ultimately heart failure, and the insurer conducted only a perfunctory investigation, denying the claim on the basis that death was due to a heart attack, rather than the accident, without adequately investigating whether the accident had caused the heart attack.” 14 Couch on Insurance § 207:25, pp. 207-41 to 207-42 n.59 (citing Mariscal v. Old Republic Life Ins. Co., 42 Cal. App. 4th 1617, 50 Cal. Rptr. 2d 224 [1996]).
It is clear from the district court’s bench ruling that it considered Stonebridge’s lack of investigation and failure to evaluate the claim in good faith when awarding attorney fees to Foster. The court discussed its concerns with Stonebridge’s employees “who are limited to on-the-job training, who have no training in medical or legal terminology at a minimum, who have no printed policy, and rely solely on the common language without any []ability to assess medical terminology against legal standards, which is basically the basis of their jobs.”
The court’s findings of fact are supported by the record testimony of Stonebridge’s employees. Both Clark and Allen testified that they had no training at Stonebridge other than on-the-job training. Neither Clark nor Allen were provided with any written guidelines to assist in investigating the claim, and neither consulted Stonebridge’s staff doctor before denying the claim. See Mariscal, 42 Cal. App. 4th at 1624-25 (noting that failure to understand medical terms and failure to consult with staff doctor were factors that supported bad-faith finding). Further, Allen testified that she did not investigate the claim at all before denial. The following portion of Allen’s trial testimony is illustrative of the judge’s concerns:
“Q. [Plaintiff s counsel:] It’s your understanding that Marie Foster fell?
“A. [Allen:] Correct.
“Q. And you agree that she fractured her hip when she fell?
“A. Correct.
“Q. And you agree that this was an accidental fall?
“A. Correct.
“Q. In this case, Marie Foster suffered a myocardial infarction and cardiac arrest as a result of having hip surgery, true?
“A. That’s what it appears, yes.
“Q. And when you reviewed this file, do you recall that there was information about an infiltrate and atelectasis on CT? Do you recall that?
“A. Yes.
“Q. But you didn’t know when you reviewed the file what that meant, true?
“A. That’s correct.
“Q. And you don’t- — did not know whether that represented a post-operative complication, true?
“A. True.
“Q. Are you aware of any evidence in the medical record that indicates that Marie Foster’s preexisting coronary artery disease caused her to have a myocardial infarction during her hospitalization?
“A. Not during her hospitalization. Just what was on the death certificate.”
Allen admitted she did not have any idea what the medical records said that supported her decision to deny the claim; she specifically said she did not know what the terms hypoxia, infiltrate, cardiac enzyme, or “St elevation on a EKG” meant and did not investigate Dr. Dali’s letter stating that the patient had “increased cardiac enzymes,” and “EKG showed ST elevation.” Allen also recounted her deposition testimony where she answered the question “[w]hat in the medical record indicates that Marie Foster’s cardiac arrest was not a result of her bodily injury?” by saying, “I don’t know.” She also said that when she denied coverage, the medical records gave no indication that Marie would have (lied on August 3 if she had not fallen. She admitted that at the time she denied coverage, she had two conflicting reports, one from Dr. Snodell and one from Dr. Dali.
The district court found that Stonebridge did not fulfill its obligation to conduct a good-faith evaluation of the claim. From the record, the district court did not abuse its discretion in making this finding. On appeal, Stonebridge does not contest the amount of the attorney fee award as unreasonable. Therefore, it concedes the hourly rates of and time spent by counsel for Foster’s litigation were appropriate. See Drew v. Cobblestone Builders, Inc., No. 105,673, 2012 WL 3289948, at *7 (Kan. App. 2012) (unpublished opinion).
Attorney fees and costs on appeal
Foster timely filed a motion in May 2012 (and a renewed motion in October 2012 following oral arguments) for her attorney fees and costs associated with this appeal as provided in Supreme Court Rule 7.07 (2011 Kan. Ct. R. Annot. 64). The rule permits an appellate court to “award attorney fees for services on appeal in any case in which the trial court had authority to award attorney fees.” Rule 7.07(b) (2011 Kan. Ct. R. Annot. 64). By virtue of K.S.A. 40-256, the district court had such authority, and this court may, in turn, entertain such a fee request. Foster’s May motion requested $40,952.50 in attorney fees and $504.79 in costs and the October motion requested revised attorney fees of $46,857.50 for this appeal.
A panel of this court recently outlined an appellate court’s role in determining attorney fees on appeal:
“We, tiren, measure the attorney-fee request by the same substantive standards set out earlier in our review of the district court’s award. That is, did [tire insurer’s] decision to appeal amount to a refusal to pay a claim covered under the policy ‘without just cause or excuse?’ Our determination of the issue is not preordained by our decision on the district court’s award of attorney fees. We reviewed that award for abuse of discretion and found none. That standard is an especially forgiving one and would require that we affirm even if we might not have ruled tire same way had we been sitting on tire bench in the district court. We are not similarly constrained with a fee request presented to us in the first instance.” Drew, 2012 WL 3289948, at *8.
Stonebridge takes substantially the same position that it did in appealing the district court’s attorney fee award: Foster cannot establish under the facts of this case that Stonebridge’s denial was without just cause or excuse because a “good-faith legal controversy exists as to liability.” Stonebridge does not dispute the reasonableness of the amount of attorney fees requested, but it does take issue with Foster’s request for costs.
Even under the independent standard of review allowed for appellate attorney fees, however, Stonebridge did not meet its duty of good faith to investigate, but rather it sought evidence from Dr. Dali upholding its own interests. See 14 Couch on Insurance § 207:25. Clark only contacted Dr. Dali before issuing a denial; she did not attempt to contact Dr. Snodell who offered an opinion supporting coverage under the policy or any other doctors who evaluated Marie. Further, as stated above, both Clark and Allen testified that they had no training at Stonebridge other than on-the-job training. Neither Clark nor Allen were provided with any written guidelines to assist in investigating the claim, and neither consulted Stonebridge’s staff doctor before denying the claim. Further, Allen testified that she did not investigate the claim at all before denial. Stonebridge failed in its duty to conduct a good-faith investigation of the facts before finally refusing to pay. See Brown, 209 Kan. at 641.
Turning to the amount of attorney fees that should be awarded, Stonebridge does not dispute the reasonableness of the hourly rates or the times devoted to the tasks as detailed in the attachments to either of Foster’s motions; therefore, this court is not required to independently review those aspects of the fee requests. See Drew, 2012 WL 3289948, at *8. This court has noted that it “ha[s] some independent obligation to determine that the requested attorney fees are Tor services on appeal’ and, therefore, come within the scope of Rule 7.07(b).” Drew, 2012 WL 3289948, at *9. In this case, however, unlike in Drew, the requested fees all include tasks connected with this appeal; therefore, the court need not make adjustments to the number of hours billed.
Stonebridge does, however, take issue with Foster’s claimed costs, arguing they are not supported by statute. Stonebridge ar gues that none of the costs claimed by Foster in her May 2012 motion are authorized by statute. Foster asks for a total of $504.79 in costs in exhibit 2 of the motion and affidavit. K.S.A. 2011 Supp. 60-2003 provides the items that can be claimed as “costs”:
“Items which may be included in the taxation of costs are:
(1) The docket fee as provided for by K.S.A. 60-2001, and amendments thereto.
(2) The mileage, fees, and other allowable expenses of the sheriff, other officer or private process server incurred in the service of process or in effecting any of the provisional remedies authorized by this chapter.
(3) Publisher’s charges in effecting any publication of notices authorized by law.
(4) Statutory fees and mileage of witnesses attending court or the taking of depositions used as evidence.
(5) Reporter’s or stenographic charges for the taking of depositions used as evidence.
(6) The postage fees incurred pursuant to K.S.A. 60-303, and amendments thereto.
(7) Alternative dispute resolution fees shall include fees, expenses and other costs arising from mediation, conciliation, arbitration, settlement conferences or odier alternative dispute resolution means, whether or not such means were successful in resolving tire matter or matters in dispute, which the court shall have ordered or to which the parties have agreed.
(8) Such other charges as are by statute authorized to be taxed as costs.”
The costs Foster seeks in this appeal are as follows: (1) “AAP>Mileage: Deliver Order to Defense,” (2) “Sharon Cahill> Trial Transcript,” (3) “AAP>Mileage: WyCo Courthouse,” (4) “Photocopies,” (5) “Postage>Brief to Def Counsel,” and (6) “Fed Ex. File Brief w/Appellate Court.” As Stonebridge points out, none of these items are ¿lowed as “costs” under K.S.A. 2011 Supp. 60-2003. See Divine v. Groshong, 235 Kan. 127, 141, 679 P.2d 700 (1984) (“The term ‘costs’ ordinarily means the fees and charges of the court — filing fees, fees for service of process and the like.”). Therefore, Stonebridge is correct that Foster is not allowed to recover these costs on appeal.
In conclusion, we are granting Foster’s revised request for appellate attorney fees in the amount of $46,857.50 and denying Foster’s request for costs of $504.79.
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Malone, C.J.:
Joseph T. McGill was convicted of two counts of aggravated indecent liberties with a child after the district court denied his motion to dismiss or, in the alternative, his motion in limine to exclude evidence of three extrajudicial confessions. Mc-Gill appeals, arguing that the district court erred in denying his pretrial motions because the State did not offer sufficient independent evidence to establish the corpus delicti of the crimes charged apart from his alleged extrajudicial confessions. For the reasons set forth herein, we affirm the district court’s judgment.
Factual and Procedural Background
On May 25, 2012, the State charged McGill with two counts of aggravated indecent liberties with a child. The alleged victims were McGill’s daughters, E.T.M. and L.A.M. Count I alleged that Mc-Gill engaged in lewd fondling or touching of E.T.M. in 2011, when E.T.M. was 1 year old. Count II alleged that McGill engaged in lewd fondling or touching of L.A.M. in 2005, when L.A.M. was 3 months old.
On June 7,2012, the district court conducted a preliminary hearing. The State called McGill’s wife, Jessica McGill, as a witness and she testified to the following account. When L.A.M. was born on August 11, 2005, Jessica was living with her parents and McGill was living in an apartment nearby. Jessica returned to work in late October 2005 when L.A.M. was about 3 months old. While Jessica was at work, McGill often cared for L.A.M. McGill usually watched L.A.M. at Jessica’s parents’ house, and it was not uncommon for him to do so by himself. When Jessica worked the 1 to 8 p.m. shift at her job, it was McGill’s responsibility to feed and bathe L.A.M. and put her to bed.
McGill and Jessica married in August 2006. The couple had three more children; the youngest was E.T.M., born July 12,2010. McGill and Jessica began living apart in March 2011, but McGill moved back in with Jessica and the children shortly after E.T.M.’s first birthday on July 12,2011. Both McGill and Jessica were working outside the home at drat time. McGill typically got off work at 3:30 p.m. and would pick up the children. On days when Jessica worked the 1 to 8 p.m. shift, McGill would be alone with the children from the time he picked them up when he got off work at 3:30 p.m. until the time Jessica arrived home around 8:15 or 8:30 p.m. McGill was responsible for feeding the children, bathing them, and making sure they were ready for bed. McGill showered at the couple’s house, and it was not unusual for him to shower with the children.
On May 7, 2012, Jessica was at work and scheduled to stay until 8 p.m. McGill called Jessica and said that she needed to leave work and meet him at his therapist’s office because he had something important he needed to tell her. Jessica could not leave work, so she told McGill she would meet him at home at 8 p.m. and he could tell her what he needed to tell her. Jessica called McGill a short time later to ask him what was going on, but McGill said he could not tell her over the phone “because it would devastate [her].” In a later phone call that day, McGill told Jessica that if he told her what he had done, she would hate him forever and would not want to see him or be with him. McGill also said he would be moving out of the couple’s house.
Jessica called McGill on her way home from work and he agreed to tell her what happened if she would not tell anyone else. When Jessica arrived at the couple’s house, McGill came outside and sat in the vehicle with her. Inside the car, McGill told Jessica that when L.A.M. was about 3 months old, he had put his penis in her mouth and had her suck on it. McGill also said that when E.T.M. was about 1 year old, he was talcing a shower with her and rubbed his penis against her vagina.
Jessica was the only witness at the preliminary hearing. At the conclusion of the hearing, the district court bound McGill over for trial. McGill entered a plea of not guilty. On June 11,2012, McGill filed a motion to dismiss or, in tire alternative, a motion in limine to exclude the evidence of his alleged confessions. McGill asked the district court to dismiss the case pursuant to the common-law corpus delicti rule that an accused may not be convicted of a crime based solely on an uncorroborated confession. In tire alternative, McGill asked for,an order excluding any evidence of his alleged confessions.
On August 17, 2012, the district court conducted a hearing on the pretrial motions filed by McGill, including the motion to dismiss/motion in limine. The State called Bradley Mills, owner of Mills Family Counseling, as its first witness and he testified to the following account. On May 7, 2012, McGill came to Mills’ office for his second scheduled session of a court-ordered sex offender treatment program arising from an unrelated case. Mills had arranged for McGill to taire a polygraph examination earlier drat day, and McGill arrived for his session after completing part of the paperwork for the polygraph examination. When McGill came into Mills’ office, he was having what Mills characterized as an emotional breakdown. McGill was tearful and pacing the floor. He would sit down, stand up, and then pace some more. McGill said things like, “I’m in trouble” and “I need help.” This behavior went on for about 35-40 minutes.
McGill was struggling to maintain any kind of composure and acted as though something he had revealed during the polygraph test was going to be a problem for him — he was afraid he was going to receive additional charges. As their scheduled session neared its end, Mills told McGill that he was going to receive a copy of Mc-Gill’s polygraph test, so McGill might as well tell him what he was so worried about. McGill told Mills that he had put his penis in his child’s mouth and fondled her 6 years ago. Then McGill said that he had put his penis in his other child’s mouth about a year ago. After McGill’s session ended, Mills called SRS and reported suspected abuse.
The State then called its second witness, Donald L. Williams, owner of a business that conducts private investigations and polygraph tests, who testified to tire following account. McGill was referred to Williams to complete a polygraph examination and came to Williams’ office for an appointment in early May 2012. As was his standard procedure before administering a polygraph examination, Williams asked McGill to fill out a questionnaire consisting of 10 pages of information for him to self-report. In the questionnaire, McGill wrote that he had a sexual encounter with “Theresa” when he was 27 years old and she was 1 year old. Theresa is E.T.M.’s middle name. In response to yes/no questions, McGill answered that he had touched her vagina, bathed or showered with her, rubbed his penis on her, and rubbed his penis on her vagina. He also answered that she had touched his penis. •
Also in the questionnaire, McGill detailed a sexual encounter with “Anne” when he was 20 years old and she was 3 months old. Anne is L.A.M.’s middle name. McGill answered that he had bathed or showered with her, that she had licked or sucked his penis, and that her mouth had been on his private parts. McGill later refused to take the scheduled polygraph examination. Williams faxed the contents of tire questionnaire to McGill’s probation officer.
By agreement of the parties, the State noted that the district court could also consider Jessica’s preliminary hearing testimony as part of the evidence on the motion to dismiss/motion in limine. No other evidence was presented. At the conclusion of the hearing, the judge took the matter under advisement.
On September 21, 2012, the parties reconvened before the district court for its ruling. The district judge denied McGill’s motion to dismiss/motion in limine, stating:
“My ruling is as follows: Defendant’s motion to dismiss is denied. I don’t believe a court-ordered dismissal is an appropriate remedy for what the defendant is requesting in this case.
“The question and issues raised by the defense I think essentially are a sufficiency of evidence issue. And I just don’t think that a motion or an order dismissing the case is an appropriate remedy here.
“As for the motion in limine in which the defendant asks for an order to suppress or to find inadmissible the defendant’s three confessions, the defendant’s motion is denied. The defendant’s three confessions are admissible in evidence.”
On January 24, 2013, the district court conducted a bench trial on stipulated facts. The written stipulated facts do not appear in the record on appeal, but the record reflects that the parties agreed that the district court could consider all the evidence presented at the preliminary hearing and the hearing on the pretrial motions. Based on the stipulated evidence, the district court found McGill guilty of both counts of aggravated indecent liberties with a child. McGill timelyappealed his convictions.
Did the District Court Err in Denying McGill’s Pretrial Motions?
McGill claims the district court erred in denying his pretrial motion to dismiss or, in the alternative, his motion in limine to exclude the evidence of his confessions. McGill argues that the State did not present sufficient evidence to satisfy the corpus delicti rule as expressed by the United States Supreme Court and the Kansas Supreme Court. In particular, McGill asserts that Kansas courts do not distinguish between extrajudicial confessions made to law enforcement personnel and those made to other persons. He also argues that evidence of opportunity to commit the crime charged was insufficient in order to establish the corpus delicti. The State counters that the district court did not err in denying McGill’s motion upon finding that the State had presented evidence corroborating McGill’s confessions, sufficient to satisfy the corpus delicti rule.
McGill and the State agree that this court should apply an abuse of discretion standard in reviewing the district court’s decision to deny the pretrial motion to dismiss/motion in limine. A judicial action constitutes an abuse of discretion if the action (1) is arbitraiy, fanciful, or unreasonable; (2) is based on an error of law; or (3) is based on an error of fact. State v. Ward, 292 Kan. 541, 550, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012). Moreover, McGill’s motion to dismiss is based on a claim of insufficient evidence. “[Rjeview Qf a trial court’s denial of a motion to dismiss for insufficient evidence asks whether the evidence, viewed in the light most favorable to the prosecution, convinces the appellate court that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. [Citation omitted.]” State v. Garcia, 282 Kan. 252, 259-60, 144 P.3d 684 (2006).
The Latin term “corpus delicti” means the body of the offense— the substance of the crime. State v. Yarrington, 238 Kan. 141, 146, 708 P.2d 524 (1985). Loosely defined, the corpus delicti is the physical evidence of a crime, such as the corpse of a murdered person. Black’s Law Dictionary 395 (9th ed. 2009). Properly used, the term is applicable to any crime and is not limited to homicide cases. The corpus delicti rule is a doctrine that prohibits a prosecutor from proving the corpus delicti solely on the basis of a defendant’s extrajudicial statements. Black’s Law Dictionary 395 (9th ed. 2009). The prosecution must establish the corpus delicti with corroborating evidence in order to convict a defendant. Black’s Law Dictionary 395 (9th ed. 2009).
The corpus delicti rule as applied by most courts focuses on whether corroborative evidence establishes the trustworthiness of the confession, rather than on whether the corroborative evidence establishes that the crime occurred. In Smith v. United States, 348 U.S. 147, 152, 75 S. Ct. 194, 99 L. Ed. 192 (1954), the United States Supreme Court reiterated the general rule that an accused may not be convicted of a crime solely on the basis of an uncorroborated confession. The purpose of this rule is to prevent errors in convictions based upon untrue confessions alone. 348 U.S. at 153. The Court explained:
“[I]ts foundation lies in a long history of judicial experience with confessions and in the realization that sound law enforcement requires police investigations which extend beyond the words of the accused. Confessions may be unreliable because they are coerced or induced, and although separate doctrines exclude involuntary confessions from consideration by the jury, [citations omitted], further caution is warranted because the accused may be unable to establish the involuntary nature of his statements. Moreover, though a statement may not be 'involuntary’ within the meaning of this exclusionary rule, still its reliability may be suspect if it is extracted from one who is under foe pressure of a police investigation — whose words may reflect foe strain and confusion attending his predicament rather than a clear reflection of his past. Finally, the experience of foe courts, foe police and the medical profession recounts a number of false confessions voluntarily made, [citation omitted]. These are the considerations which justify a restriction on foe power of the jury to convict, for tins experience with confessions is not shared by the average juror. Nevertheless, because this rule does infringe on foe province of the primary finder of facts, its application should be scrutinized lest the restrictions it imposes surpass foe dangers which gave rise to them.” Smith, 348 U.S. at 153.
In Smith, a defendant charged with tax evasion made extrajudicial statements representing the amount of tax money he thought he owed. The defendant appealed his conviction, arguing that his extrajudicial statement was not sufficiently corroborated by independent evidence. The Supreme Court addressed the quantum of corroboration necessary to prove the existence of the crime charged, holding that “the corroborative evidence does not have to prove the offense beyond a reasonable doubt, or even by a preponderance, as long as there is substantial independent evidence that the offense has been committed, and the evidence as a whole proves beyond a reasonable doubt that defendant is guilty.” 348 U.S. at 156. Furthermore, the Supreme Court noted that while all elements of a charged offense must be established by independent evidence or corroborated admissions, one available mode of corroboration is for the independent evidence to bolster the confession itself, thereby proving the offense through the statements of tire accused. 348 U.S. at 156.
In Opper v. United States, 348 U.S. 84, 75 S. Ct. 158, 99 L. Ed. 101 (1954), decided on the same day as Smith, the defendant was charged and convicted of inducing a federal employee to accept compensation for services to be rendered in connection with a federal contract. The defendant admitted in a written statement that he had paid money to the federal employee, which constituted an element of the crime. In considering the extent of corroboration of admissions necessary as a matter of law to support a conviction, the Court determined that “the corroborative evidence need not be sufficient, independent of the statements, to establish the corpus delicti. It is necessary, therefore, to require the Government to introduce substantial independent evidence which would tend to establish the trustworthiness of the statement.” 348 U.S. at 93.
The Supreme Court again discussed the corpus delicti rule in Wong Sun v. United States, 371 U.S. 471, 488-89, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963). Referring to its holding in Smith, the Supreme Court noted that although corroboration is necessary for all elements of an offense established by admissions alone, extrinsic proof is sufficient which merely fortifies the truth of tire confession, without independently establishing the crime charged. 371 U.S. at 489. All American jurisdictions have adopted some form of the corpus delicti rule requiring some degree of corroboration of a defendant’s confession in order to support a conviction. The rule sometimes has been incorporated into statute or court rule. Con stitutional considerations, however, most likely do not demand it. 1 McCormick on Evidence § 145, p. 701 (7th ed. 2013).
In Kansas, the corpus delicti rule is a judicially created and recognized doctrine and is basically consistent with United States Supreme Court precedent on the subject. The Kansas Supreme Court has adopted the general rule that an uncorroborated extrajudicial statement is insufficient to sustain a conviction. State v. Tillery, 227 Kan. 342, 346, 606 P.2d 1031 (1980). However, any material facts, including the corpus delicti itself, may be proved by direct testimony, by indirect or circumstantial evidence, or by a combination of both. No exclusive mode of proof of the corpus delicti is prescribed by law. 227 Kan. at 346; State v. Higdon, 224 Kan. 720, 723, 585 P.2d 1048 (1978). The corpus delicti in a rape case may be proved by extrajudicial admissions and circumstantial evidence. 224 Kan. at 723. Our Supreme Court has recognized that as a basis for introduction of the defendant’s confession or admission the prosecution is not required to establish the corpus delicti by proof as clear and convincing as is necessary to establish guilt; a slight or prima facie showing is sufficient. State v. Pyle, 216 Kan. 423, Syl. ¶ 2, 532 P.2d 1309 (1975).
Do Kansas courts distinguish between extrajudicial confessions made to law enforcement personnel and those made to other persons?
McGill contends that the corpus delicti rule requires corroborating evidence for all extrajudicial confessions, regardless of whether they are made to law enforcement or some other person. The State counters that our Supreme Court has distinguished between confessions to law enforcement personnel and non-law enforcement individuals and asserts that only confessions to law enforcement require corroboration.
McGill argues that the fact a defendant confessed to a non-law enforcement individual is irrelevant in determining whether there is sufficient corroborating evidence to establish the corpus delicti. He cites the decision of the Supreme Court of Iowa in State v. Schomaker, 303 N.W.2d 129, 131 (1981), stating:
“ ‘Confessions are either judicial or extrajudicial. Judicial confessions are those made in conformity to law before a committing magistrate or in court in the course of legal proceedings. Extrajudicial confessions are those which are made by a party elsewhere than before a magistrate or in court. These, by the great weight or authority, independent of statute, must be corroborated by proof of the corpus delicti.’ [Citation omitted.]”
Based on this authority, McGill asserts that any extrajudicial confession, whether made to law enforcement or some other person, must be corroborated by independent evidence in order for the corpus delicti to be sufficiently established. He also argues that it is “well-established” that one extrajudicial confession may not be used to corroborate another extrajudicial confession. See 1 McCormick on Evidence § 146, p. 809 n.3 (7th ed. 2013).
The State asserts that our Supreme Court’s decision in State v. Waddell, 255 Kan. 424, 874 P.2d 651 (1994), suggests that extrajudicial confessions made to law enforcement officers are distinguishable from those made to other persons. In that case, the defendant was convicted of aggravated sexual battery and felony murder. While in jail, the defendant made incriminatory statements to his attorney and to a friend who visited him; he also confessed in a statement to police. On appeal, the defendant argued that the only evidence presented by the State that supported a finding of guilt was his uncorroborated confession to police.
In response, the State argued that even without the defendant’s confession to police, his guilt was established by numerous factors including the fact that the defendant confessed to a friend and the defendant told his attorney that he wanted to tell him how he tolled the victim. The Waddell court agreed that the corroboration rule had been met, stating:
“The details of Waddell’s confession are supported by die evidence: (1) A bra hook was discovered, and the bra had been forcibly removed; (2) Waddell’s white t-shirt contained fabric consistent widi the fiber under Stephanie’s fingernails; (3) a set of keys was barely observable and a bra was found under the sweater that could not be seen undl die sweater was removed; and (4) bruising on Stephanie’s head was consistent with her having been hit. The weight and credibility of a confession is for the jury to determine. Free, voluntaiy, and deliberate confessions are entitled to great weight. [Citation omitted.]” 255 Kan. at 433.
The State acknowledges that the Waddell court did not expressly rely on the defendant’s confessions to his attorney and friend in affirming his convictions, but it argues that the court implicitly distinguished between those confessions and the defendant’s confession to police, as it was only the latter confession that the court viewed as needing corroboration. Furthermore, the State contends that the court’s opinion in Waddell suggests that one confession can be used to corroborate another confession. The State points out that in Waddell, the prosecution relied in part on the defendant’s statements to his attorney and friend to corroborate his confession to police and our Supreme Court found that the corroboration rule had been met. See 255 Kan. at 432.
We are not persuaded by the State’s argument that Waddell suggests that extrajudicial confessions made to law enforcement officers are distinguishable from those made to other persons in terms of the corpus delicti rule. Rather, as a general rule, we agree with McGill that the corpus delicti rule requires corroborating evidence for all extrajudicial confessions, regardless of whether they are made to law enforcement or some other person. As the United States Supreme Court noted in Smith, “the experience of the courts, tire police and the medical profession recounts a number of false confessions voluntarily made.” 348 U.S. at 153. The purpose and foundation underlying the corpus delicti rule applies to all extrajudicial confessions offered into evidence, including confessions made to non-law enforcement individuals.
McGill’s argument that one extrajudicial confession may not be used to corroborate another extrajudicial confession is more problematic, and on this point, a distinction may be drawn between confessions made to law enforcement officers and confessions made to other persons. We agree with McGill that as a general rule, a confession made to law enforcement officers cannot be corroborated by a second confession made to law enforcement officers for the purpose of satisfying the corpus delicti rule. If one confession made to law enforcement officers could be used to corroborate another confession made to law enforcement officers, then law enforcement officers investigating a crime could always circumvent the corpus delicti rule simply by interrogating an accused person twice in order to obtain separate uncorroborated confessions as evidence to support the accused’s guilt of a crime.
Nevertheless, we believe that some weight can be given to the fact that McGill confessed three separate times to non-law enforcement individuals, providing consistent details about how he molested his children, before law enforcement officers became involved in his case. In discussing the corpus delicti rule, the United States Supreme Court noted that one of the concerns justifying the rule is that the reliability of a confession “may be suspect if it is extracted from one who is under the pressure of a police investigation.” Smith, 348 U.S. at 153. McGill cannot claim that he was under the pressure of a police investigation when he initially confessed to molesting his children. The fact that McGill confessed three separate times to non-law enforcement individuals before law enforcement officers became involved in his case is a factor that bolsters the reliability and trustworthiness of McGill’s admissions.
Is evidence of opportunity to commit the crime sufficient to establish the corpus delicti?
McGill also argues the fact that he had a mere opportunity to commit the crimes charged is insufficient to establish the corpus delicti independently from his alleged confessions. The State disagrees, contending that to the extent McGill’s confessions required corroboration, his opportunity to commit the crimes provided the “slight or prima facie showing” necessary to establish the corpus delicti. See Pyle, 216 Kan. at 433.
McGill cites a number of cases from other jurisdictions holding that mere opportunity to commit the crime charged is insufficient to establish the corpus delicti. See People v. Lambert, 104 Ill. 2d 375, 378-79, 472 N.E.2d 427 (1984); People v. Moses, 63 N.Y.2d 299, 482 N.Y.S.2d 228, 472 N.E.2d 4 (1984); Troncosa v. State, 670 S.W.2d 671, 680 (Tex. App. 1984). As an example, in State v. Campbell, 218 Or. App. 171, 178 P.3d 337 (2008), the defendant was convicted of aggravated indecent liberties with a child based on an extrajudicial confession made to the police. Under Oregon law, extrajudicial confessions must be corroborated by independent evidence of the corpus delicti. See 218 Or. App. at 176. The Court of Appeals of Oregon acknowledged that there was evidence from which a factfinder could infer that the defendant had the opportunity to commit the crime, as he had been left alone in a bathroom with a 3-year-old girl as she was bathing. 218 Or. App. at 175-76. However, the court found that mere opportunity did not constitute independent evidence that a crime was committed:
“The evidence showing that defendant had an opportunity to commit the offenses establishes only that — that he had the opportunity; it does not tend to establish that the offenses actually occurred. [Citations omitted.]... To determine on this record that sexual abuse occurred, a factfinder would have to infer that defendant has a propensity to sexually abuse small children and that he acted in conformity with that propensity on the occasion in question. That is not a permissible inference. [Citation omitted.]” 218 Or. App. at 177.
Based on the persuasive authority from other jurisdictions cited by McGill, we agree that evidence of a person’s opportunity to commit the crime, standing alone, is insufficient to corroborate an alleged extrajudicial confession in order to establish the corpus de-licti. However, as we will discuss more fully herein, we conclude that evidence of a person’s opportunity to commit the crime may be considered as one of multiple factors in order to corroborate an extrajudicial confession made by an accused.
Was there sufficient corroboration to allow the introduction of Mc-Gill’s extrajudicial statements?
Under the corpus delicti rule, an accused may not be convicted solely on the basis of an uncorroborated confession. But as the United States Supreme Court stated in Smith, 348 U.S. at 156, “the corroborative evidence does not have to prove the offense beyond a reasonable doubt, or even by a preponderance, as long as there is substantial independent evidence that the offense has been committed, and the evidence as a whole proves beyond a reasonable doubt that defendant is guilty.” In order to corroborate a confession, extrinsic proof is sufficient which merely fortifies the truth of the confession, without independently establishing the crime charged. Wong Sun, 371 U.S. at 489.
The Kansas Supreme Court has adopted the general rule that an uncorroborated extrajudicial statement is insufficient to sustain a conviction. Tillery, 227 Kan. at 346. However, any material facts, including the corpus delicti itself, may be proved by direct testimony, by indirect or circumstantial evidence, or a combination of both. No exclusive mode of proof of the corpus dehcti is prescribed by law. 227 Kan. at 346; Higdon, 224 Kan. at 723. Our Supreme Court has recognized that as a basis for introduction of the defendant’s confession or admission the prosecution is not required to establish the corpus delicti by proof as clear and convincing as is necessary to establish guilt; a slight or prima facie showing is sufficient. Pyle, 216 Kan. 423, Syl. ¶ 2.
In State v. Bradford, 254 Kan. 133, 864 P.2d 680 (1993), the Kansas Supreme Court considered whether the State had failed to prove the- corpus dehcti of a felony murder. In affirming tire conviction, the court reviewed whether the defendant’s uncorroborated confession was sufficient to place him at the crime scene or prove whether he committed the underlying felony of attempted robbery. The court relied on Gribble v. State, 808 S.W.2d 65, 71-72 (Tex. Crim. 1990), cert. denied 501 U.S. 1232 (1991), explaining that
“ ‘die quantum of independent evidence necessary to corroborate the corpus de-licti in a criminal prosecution relying upon the extrajudicial confession of an accused need not be great. [Citation omitted.] So long as there is some evidence which renders the corpus delicti more probable than it would be without the evidence, we believe that the essential purposes of the rule have been served. [Citations omitted.]’ ” 254 Kan. at 139.
Applying this rule to the facts of the case, the Bradford court determined that the evidence of the victim’s purse and keys at the crime scene independently established the corpus delicti of attempted aggravated robbery. The court concluded:
“Proof of the corpus dehcti does not require the State to prove by evidence independent of Bradford’s confession that the attempted robbery was committed by Bradford. The State merely needs to corroborate the fact that, given the evidence, it is more probable than not that [die victim] was killed during the course of an attempted robbery. Sufficient corroborating proof that satisfies this burden is present in the case at bar.” 254 Kan. at 139-40.
The touchstone of the corpus delicti rule is that an accused may not be convicted of a crime based splely on an uncorroborated confession without some indicia of reliability or trustworthiness to support the confession. See Opper, 348 U.S. at 93 (prosecution must introduce substantial independent evidence tending to establish the trustworthiness of the statement). In order to determine whether a defendant’s confession may be admissible, a court must determine whether there are any significant unique facts contained in the confession that can be independently corroborated and whether the statements were given in a manner that support the reliability of the admissions. Here, there is evidence in the record establishing the trustworthiness of McGill’s confessions sufficient to support the district court’s decision to deny the motion to dismiss.
McGill made three separate extrajudicial confessions. He told Jessica that when L.A.M. was 3 months old, he put his penis in her mouth and had her suck on it, and that when E.T.M. was 1 year old, he was taking a shower with her and rubbed his penis against her vagina. McGill told his therapist that he had put his penis in his child’s mouth and fondled her 6 years ago and he had put his penis in his other child’s mouth about a year ago. Finally, McGill wrote on his pre-polygraph questionnaire that he had a sexual encounter with “Theresa” (E.T.M.) when he was 27 years old and she was 1 year old. In response to yes/no questions, McGill answered that he had touched her vagina, bathed or showered with her, rubbed his penis on her, and rubbed his penis on her vagina. McGill also detailed a sexual encounter with “Anne” (L.A.M.) when he was 20 years old and she was 3 months old. McGill answered that he had bathed or showered with her, that she had licked or sucked his penis, and that her mouth had been on his private parts.
The circumstantial evidence elicited in Jessica’s testimony bolstered McGill’s three extrajudicial confessions. First, Jessica’s testimony established that L.A.M. would have been about 3 months old and E.T.M. would have been about 1 year old at the time of the crimes that McGill confessed to committing, exactly the ages that McGill described in his confessions. Second, her testimony established that E.T.M.’s and L.A.M.’s middle names matched the names of the victims described in McGill’s prepolygraph questionnaire.
Third, Jessica’s testimony established that McGill was frequently alone with his daughters at the relevant time periods indicated for each of the crimes to which he confessed. As we have previously discussed, evidence of a person’s opportunity to commit the crime, standing alone, is insufficient to corroborate an alleged extrajudicial confession in order to establish the corpus delicti. However, the evidence that McGill had the opportunity to commit the crimes in the manner that he stated in his confessions may be considered as one of multiple factors that supports the reliability of his admissions.
Fourth, Jessica’s testimony established that McGill sometimes showered with E.T.M., which is consistent with his statements that he rubbed his penis on E.T.M. while taking a shower with her. We find Jessica’s corroborative testimony on this point to be particularly compelling as we view it to be quite unusual in most families for a father to shower with a 1-year-old daughter. Jessica’s testimony on this point independently corroborates a significant unique fact contained in McGill’s confessions.
Fifth, as we have previously stated, we believe that some weight can be given to the fact that McGill made three separate statements to non-law enforcement persons before law enforcement officers became involved in the case. McGill cannot claim that he was under the pressure of a police investigation when he initially confessed to non-law enforcement persons to molesting his children. The truth of McGill’s confessions was fortified by the fact that McGill confessed three separate times to non-law enforcement persons, providing consistent details about how he molested his children, before law enforcement officers became involved in the case.
Finally, McGill’s demeanor and his own behavior at the time he made his statements bolster the reliability and trustworthiness of the confessions. When McGill came to Mills’ office for the therapy session, he was having what Mills characterized as an emotional breakdown. McGill was tearful and pacing the floor. He would sit down, stand up, and then pace some more. McGill said things like, “I’m in trouble” and “I need help.” Likewise, when McGill talked with Jessica on the phone, he said he could not tell her what he had done over the phone “because it would devastate [her].” In a later phone call that day, McGill told Jessica that if he told her what he had done, she would hate him forever and would not want to see him or be with him. All of this testimony by Jessica “fortifies the truth of the confession[s]” made by McGill. See Wong Sun, 371 U.S. at 489.
We conclude that the circumstantial evidence offered by the State, particularly through Jessica’s testimony, was sufficient to corroborate McGill’s extrajudicial confessions such that the confessions were admissible as evidence under existing Kansas/United States Supreme Court precedent. McGill’s confessions contained significant unique facts that were independently corroborated, and the statements were given in a manner that supported the reliability'of the admissions. Under these circumstances, the district court did not err in denying McGill’s pretrial motions to dismiss or, in the alternative, to exclude the evidence of his confessions.
If this case is further reviewed, our Supreme Court may want to clarify the application of the corpus delicti rule in Kansas. The corpus delicti rule originated as a common-law doctrine and is not founded in our state or federal constitutions. The fundamental purpose of the rule is to prevent the conviction of a person of a crime that never occurred and that can only be proved through a confession that may be false. But courts should promote a policy that balances the need to protect a person from being convicted of a crime that never occurred with the need to protect the innocent victim of a crime that actually occurred but can only be proven by a confession. In sex crimes against young children, the offender’s admission to the act is often how the crime is discovered and sometimes may be the only direct evidence proving that the crime occurred.
Our system of justice requires that for any crime charged, the government must prove the defendant guilty beyond a reasonable doubt. If we trust this system to work as it should, there is little need to have any special rules governing the admissibility of uncorroborated confessions. 'We currently have a well-developed body of law that protects the rights of an accused in a custodial interrogation. In addition, a court should be required to ensure that any extrajudicial confession satisfies a threshold standard of trustworthiness in order to be admissible as evidence. In making this determination, a court should consider and evaluate all the facts and circumstances of each particular case.
Here, the details of McGill’s confessions were corroborated by Jessica’s testimony. There were no inconsistencies in McGill’s statements that would lead anyone to suspect that he might be fabricating a stoiy. There is no evidence in the record that McGill suffers from any mental disorder, low IQ, or cognitive or learning disability, or that he has a histoiy of making false accusations about himself or anyone else. McGill does not even claim that his confessions were false. Viewed in the light most favorable to the State, McGill’s three extrajudicial confessions coupled with the indirect and circumstantial corroborative evidence provided by the State were sufficient for a rational factfinder to find McGill guilty of aggravated indecent liberties with a child beyond a reasonable doubt.
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Leben, J.:
Five taxpayers who appealed tax valuations to the Court of Tax Appeals saw their appeals dismissed by that body because their appeal notices had been signed by non-attorneys. In addition, even though the Court of Tax Appeals ultimately concluded that it had no jurisdiction to hear the appeals, it ruled in some of the cases that the contractual agreements between the taxpayers and those they hired to represent them before the Court of Tax Appeals (an attorney and a tax-appraisal firm) were void as against public policy.
The taxpayers have appealed to this court, arguing that the Court of Tax Appeals should neither have dismissed their appeals nor addressed the validity of their contractual arrangements with the attorney and tax-consulting firm. We agree. Any problem with the signature on the appeal notices would have been a correctable matter, not a jurisdictional hurdle that should have prevented the Court of Tax Appeals from considering the appeals. And the Court of Tax Appeals has no statutory authority to determine the validity of contractual arrangements between a taxpayer and a third party foe taxpayer hires to represent it. We therefore reverse the decision of foe Court of Tax Appeals and remand these appeals for further proceedings.
Factual and Procedural Background
Five separate tax appeals, all from Johnson County, have been consolidated into one appeal. In all five cases, the taxpayers appealed real-property valuations, and the Court of Tax Appeals dismissed the appeals for lack of subject-matter jurisdiction. All of the taxpayers are corporations, trusts, or some other form of artificial entity, i.e., they are not individuals owning property in their own name. And the notices of appeal for all the taxpayers were filed by non-attorneys who had been hired to assist with the tax appeals but who were not otherwise employees or owners of the taxpayers.
Three of the taxpayers — the Kathy L. Lyerla Living Trust, MBS Barkley 1031, LLC, and ACDC Investments, LLC — filed their appeals in the small-claims division of the Court of Tax Appeals. The other taxpayers — Flik, Inc., and THF College Boulevard, L.L.C.— filed their appeals in the regular division of the Court of Tax Appeals.
Flik and THF College Boulevard hired tax consultants (Property Tax Services, Inc., and Hollrah and Fricke, Inc., respectively) to handle their tax appeals. Non-attorney employees of those companies signed and filed the notices of appeal.
The other taxpayers all hired J.W. Chatam & Associates, Inc., a tax-consulting firm, to handle their tax appeals, and a non-attorney employee of Chatam signed and filed the notices of appeal for those taxpayers. When the taxpayers didn’t get any relief from their tax assessments from the small-claims division, they each pursued a further appeal to the regular division. Attorney Linda Terrill filed a notice of appeal in the regular division for each taxpayer.
That summarizes the relevant history for the appeals of Flik and THF College Boulevard. But quite a bit more took place in the appeals involving the Lyerla Living Trust, MBS Barkley 1031, and ACDC Investments.
In the appeal by the Lyerla Living Trust, Johnson County and Terrill reached an agreement to a reduced appraised value and submitted a proposed order reflecting that agreement. But the Court of Tax Appeals refused to consider the merits of any of these taxpayers’ appeals or to accept the parties’ agreement on the proper valuation for the property in the Lyerla case because it concluded that a non-attorney cannot sign the notice of appeal for a corporate or artificial entity. Based on that ruling, the Court of Tax Appeals concluded that none of the taxpayers had filed a timely appeal.
The process leading to that ruling began when the Court of Tax Appeals issued an initial order on August 23, 2012, asking that these taxpayers show cause why their cases should not be dismissed for lack of jurisdiction. The orders said that the Court of Tax Appeals sought to determine the identity of the real party in interest in each case and whether the Court could properly exercise subject matter jurisdiction. On August 31, 2012, the Court of Tax Appeals asked Terrill to provide the contracts between Chatam and the taxpayers. It then held an extensive hearing (resulting in a 226-page transcript) on September 18, 2012. Most of the hearing focused on the taxpayers’ relationships with Chatam and Terrill.
The Court of Tax Appeals issued an order of more than 80 pages in each taxpayer’s case on October 11, 2012. It concluded that it had no subject-matter jurisdiction because the appeal notices weren’t properly signed. But the orders also made several other conclusions:
• That even though Chatam had a contingent-fee interest in the appeals, the taxpayers remained the real parties in interest in their tax appeals;
• That the written contracts between Chatam and the taxpayers were void as against public policy — specifically, that they were champertous (the result of “an officious intermed-dlerf’s]” involvement in a lawsuit in exchange for part of the proceeds, Black’s Law Dictionary 279 [10th ed. 2009]) but that the champertous nature of these agreements did not eliminate the Court of Tax Appeals’ jurisdiction over the appeals;
• That if the Court of Tax Appeals had proper jurisdiction over the appeal, it would require that the taxpayers proceed without their chosen representatives (Chatam and Terrill) because the court concluded that Chatam had engaged in the unauthorized practice of law, that Terrill had assisted Chatam in doing so, and that Terrill appeared to have violated several provisions of the Kansas Rules of Professional Conduct;
• That it found “general reasons to question the credibility of [Jerry W.] Chatam’s testimony and Terrill’s statements regarding whether or not the replacement decisions [replacing Terrill with another attorney in some cases] were economically motivated.” (Jerry W. Chatam is a principal and owner of J.W. Chatam & Associates, which we generally reference in this opinion as Chatam.)
The taxpayers responded on October 29, 2012, with a request for reconsideration and a motion to strike at least tiiose portions of die order that addressed issues involving attorney-ethics rules and the contractual relationship between die taxpayers, Chatam, and Terrill. The Court of Tax Appeals granted reconsideration, but on Februaiy 20, 2013, it issued a 175-page order in each case that reached the same basic conclusions as the earlier order.
Some of the conclusions went further than the initial order. For example, the Court of Tax Appeals now concluded that Terrill had actually violated several of the attorney-ethics rules, not merely appeared to have violated them. In addition, the court made extensive factual findings about why it did not find the testimony of Jerry Chatam or the representations made by Terrill at the September 18 hearing credible.
We must note one other procedural item specific to these appeals. After the initial order of the Court of Tax Appeals, the taxpayers filed a motion on November 2, 2012, seeking the disqualification of each of the judges on the Court of Tax Appeals. The motion generally alleged bias against Chatam and Terrill “and thus a bias against Taxpayer.” In support, Terrill submitted an affidavit stating that two members of the Court of Tax Appeals had filed an ethical complaint against her on October 4, 2012, before the court had reached its decision, alleging she had committed “possible violations” of ethics rules. The Court of Tax Appeals denied the recusal motion in an order issued November 27, 2012. That court found no legal basis for recusal. It also concluded that it was an independent body with no mechanism to provide substitute judges; accordingly, it concluded that die rule of necessity would require its judges to hear the appeals even if there were some valid basis for disqualification.
That completes the procedural background we find necessary to frame the issues we must decide. We should also note, though, that the 2014 Kansas Legislature has made changes to the statutes governing the Court of Tax Appeals. In fact, even the name of that tribunal has been changed — reverting back to its former name, the Board of Tax Appeals. See L. 2014, ch. 141. None of the parties to this appeal have filed anything with our court suggesting that these legislative changes should have any impact on the issues now before us. We have not considered those legislative changes and accordingly express no opinion on what impact, if any, they may have on remand.
Analysis
I. These Tax Appeals Should Not Have Been Dismissed for Lack of Jurisdiction.
The starting point for our analysis is whether the Court of Tax Appeals was correct in dismissing the appeals for lack of subject-matter jurisdiction. Since there are some differences in the statutory provisions regarding the court’s small-claims division and its regular division, we will discuss separately the appeals that began in each division.
For the appeals of MBS Barkley 1031, ACDC Investments, and the Kathy L. Lyerla Living Trust, which began in the small-claims division, we conclude that jurisdiction was proper based on our separate decision today in In re Tax Appeal of Rakestraw Brothers, 50 Kan. App. 2d 1038, 337 P.3d 62 (2014). As we explain in greater detail there, a statute applicable to the small-claims division, K.S.A. 2011 Supp. 74-2433f(f), provided that a taxpayer could appear there through a tax representative or agent. 50 Kan. App. 2d at 1041. This statute provides that attorneys, certified public accountants, and a “tax representative or agent” may represent taxpayers in the small-claims division. Another subsection, K.S.A. 2011 Supp. 74-2433f(e), provided that the notice of appeal be “in the form prescribed by the rules” of the Court of Tax Appeals. We concluded that a fair reading of these provisions together would allow any of the parties listed in subsection (f) to file the appeal notice, 50 Kan. App. 2d at 1044, and that even if there were some problem with the signature, it would be a correctible error, not a jurisdictional defect. 50 Kan. App. 2d at 1045. Based on the legal ruling we reached in Rakestraw Brothers, we conclude that the Court of Tax Appeals wrongly dismissed the appeals of MBS Barkley 1031, ACDC Investments, and the Kathy L. Lyerla Living Trust.
We turn now to the appeals of Flik and THF College Boulevard, which were filed in tire regular division. In that division, the provisions of K.S.A. 2011 Supp. 74-2433f(f) that allow non-attorneys to represent taxpayers do not apply. And Kansas administrative agencies “may require a corporation or other artificial person to participate by counsel.” K.S.A. 77-515(c).
But the rules of the Court of Tax Appeals allowed at least some non-attorneys to represent corporations or other artificial entities. One rule provided an authorized employee or officer of a corporation or entity could participate in proceedings on behalf of the corporation or entity, so long as the representative didn’t engage in the practice of law. K.A.R. 94-5-6(b), (d) (2011 Supp.). The rule also gave the Court of Tax Appeals the option to require a corporation or other artificial entity to participate through an attorney. K.A.R. 94-5-6(e) (2011 Supp.).
K.A.R. 94-5-6 (2011 Supp.), which we have just discussed, defines who may participate in a proceeding on behalf of an artificial entity: an employee or officer. A separate rule, K.A.R. 94-5-4(b) (2011 Supp.), provides that notices of appeal be “signed by the party or the party’s attorney.” Even if we assume that an artificial entity’s employee or officer counted as “the party” under K.A.R. 94-5-4(b) (2011 Supp.), the signers of the notices of appeal for Flik and THF College Boulevard still wouldn’t have had the authority to sign the notices since they weren’t employees or officers of the taxpaying entities.
We are left, then, with timely filed notices of appeal signed by people not authorized under Court of Tax Appeals rules to do so. The question is whether this deprives the Court of Tax Appeals of jurisdiction over the appeals-, and we conclude that it does not.
First, the requirements providing who may — and may not — sign a notice of appeal come only from Court of Tax Appeals regulations. As we explain in Rakestraw Brothers, an agency may not create a jurisdictional requirement for itself unless the legislature has specifically authorized it to do so, and nothing in K.S.A. 2011 Supp. 74-2437, the authorizing statute for K.A.R. 94-5-4 (2011 Supp.) and K.A.R. 94-5-6 (2011 Supp.), suggests that the Court of Tax Appeals has the authority to adopt jurisdictional requirements by regulation. See 50 Kan. App. 2d at 1042.
Second, the Court of Tax Appeals regulations make clear that the signature requirement is not jurisdictional. A separate provision of K.A.R. 94-5-4(b) (2011 Supp.) provides that “[i]f a pleading is filed with insufficient information or is otherwise deficient, the pleading may be rejected by the court or may be accepted by the court, with supplementation by the parties required by the court.” (Emphasis added.) As we explain in Rakestraw Brothers, a provision giving the body discretion whether to accept a form that is deficient in some way is not a jurisdictional provision; if there’s no jurisdiction, the court has no choice about whether to proceed. See 50 Kan. App. 2d at 1045.
Third, another Court of Tax Appeals rule, K.A.R. 94-5-1(a) (2011 Supp.), provides that to the extent that other statutes do not specifically apply, the Kansas Code of Civil Procedure shall apply to proceedings in the regular division. That brings into play K.S.A. 2011 Supp. 60-211(a), which provides for striking an unsigned court paper only if the failure to sign is not corrected after being brought to the party’s attention. See Rakestraw Brothers, 50 Kan. App. 2d at 1045. The failure to sign a notice of appeal does not deprive even a judicial court of jurisdiction over that appeal. Becker v. Montgomery, 532 U.S. 757, 760, 763-68, 121 S. Ct. 1801, 149 L. Ed. 2d 983 (2001).
So the failure to have a proper signature on the notice of appeal does not deprive tire Court of Tax Appeals of jurisdiction over an appeal. Further, to the extent-the Court of Tax Appeals had discretion in this case to dismiss these taxpayers’ appeals under K.A.R. 94-5-4(b) (2011 Supp.), which states that nonconforming appeal notices “may be” rejected, we hold it was an abuse of discretion to dismiss the appeals without first giving Flik and THF College Boulevard an opportunity to correct these errors — -just as a court in the judicial branch would be required to do. See Rakestraw Brothers, 50 Kan. App. 2d at 1045. We therefore conclude that the Court of Tax Appeals erred when it dismissed these appeals.
II. The Court of Tax Appeals Exceeded Its Authority When It Considered and Purported to Decide Matters Beyond Its Statutory Jurisdiction.
As we have set out earlier in this opinion, in addition to determining that it had no subject-matter jurisdiction, the Court of Tax Appeals also addressed several other matters in three of the appeals- — -including the validity of the contracts between the taxpayers and their representatives, whether the taxpayers’ representatives had engaged in (or assisted in) the unauthorized practice of law, and whether the taxpayers’ attorney had violated attorney-ethics rules. The taxpayers in those three appeals contend that the Court of Tax Appeals had no authority to address these issues. We agree.
Administrative agencies are created by statute, so they have only the powers granted to them by statute. See Ft. Hays St. Univ. v. University Ch., Am. Assn of Univ. Profs., 290 Kan. 446, Syl. ¶ 1, 228 P.3d 403 (2008). The powers of the Court of Tax Appeals are set forth in K.S.A. 2011 Supp. 74-2437, which authorizes it to hear tax appeals and to make the rules needed for handling those appeals:
“The state court of tax appeals shall have the following powers and duties:
“(a) To hear appeals from the director of taxation and the director of property valuation on rulings and interpretations by said directors, except where different provision is made by law;
“(b) to hear appeals from the director of property valuation on tire assessment of state assessed property;
“(c) to adopt rules and regulations relating to the performance of its duties and particularly with reference to procedure before it on hearings and appeals; and
“(d) such other powers as may be prescribed by law.”
In addition to that statute, K.S.A. 2011 Supp. 79-1609 and K.S.A. 79-2005 provide for an aggrieved taxpayer to appeal the appraised value of real -property for real-estate tax purposes to the Court of Tax Appeals.
The issue for the Court of Tax Appeals to decide in each of these cases was whether tire taxpayer s property value had been correctly assessed. In a property-valuation appeal, the determination of the proper assessed value is the only issue the Court of Tax Appeals is authorized to determine — with one exception.
That exception applies to any administrative agency exercising quasi-judicial authority. Such a body, like the Court of Tax Appeals, may also question its own authority, or jurisdiction, to hear a matter. See Board of Meade County Commr's v. State Director of Property Valuation, 18 Kan. App. 2d 719, 726-28, 861 P.2d 1348, rev. denied 253 Kan. 856 (1993). Because the Court of Tax Appeals in cases like these has jurisdiction only over appeals brought by taxpayers, it could properly investigate whether the taxpayers on whose behalf these appeals were filed were, in fact, the real parties in interest. See 18 Kan. App. 2d at 726-28. We therefore disagree with the taxpayers’ separate contention that the Court of Tax Appeals could not make a real-party-in-interest determination. Our conclusion is supported by the statutory scheme, under which only the “taxpayer” has the right to appeal. See K.S.A. 2011 Supp. 79-1609 and K.S.A. 79-2005. The Court of Tax Appeals has the authority to determine the rights of the taxpayer, not anyone else.
The Court of Tax Appeals ultimately concluded that these taxpayers were the real parties in interest in their appeals. Yet it proceeded to address the validity of tire contractual agreements between the taxpayers and their representatives, the possible unauthorized practice of law, and possible violations of attorney-ethics rules. The court had no authority to do so:
• Nothing in the Court of Tax Appeals’ statutory authority provides that it may determine tire validity of contracts between taxpayers and third parties (tax representatives or attorneys) who are not even parties to the tax appeal.
• Nothing in the Court of Tax Appeals’ statutory authority provides that it may determine whether someone is practicing law without a license or whether an attorney has violated attorney-ethics rules. The Kansas Supreme Court has the sole power to regulate the practice of law, and it has cautioned that its authority will not be ceded to other branches of government. See State ex rel. Stephan v. Smith, 242 Kan. 336, Syl. ¶ 12, 747 P.2d 816 (1987). The Court of Tax Appeals is an agency of the Executive Branch, K.S.A. 2011 Supp. 74-2433a, and it has no statutory authority over these matters.
• None of tírese matters- — even if true — would deprive the Court of Tax Appeals of jurisdiction over these appeals. Thus there was no basis for the Court of Tax Appeals to issue rulings about them.
We do not suggest that members of the Court of Tax Appeals are prohibited from reporting potential violations of attorney-ethics rules to the proper authorities. Indeed, lawyer members of the court may have a duty to do so under the Kansas Rules of Professional Conduct, KRPC 8.3 (2013 Kan. Ct. R. Annot. 653). But the Court of Tax Appeals as a body has no authority to decide such matters. Even an administrative agency exercising quasi-judicial powers has only the power the legislature has given it. Thus, while it may examine whether it has authority, or subject-matter jurisdiction, to consider an issue, it may not go into other unrelated matters that it isn’t specifically authorized by statute to decide. See In re Tax Appeal of Trickett, 27 Kan. App. 2d 651, 656, 8 P.3d 18 (2000).
Our conclusion is reinforced by two additional points. First, key parties to these additional findings — Chatam and Terrill- — -were not parties to the case before the Court of Tax Appeals. Accordingly, no conclusion made by the Court of Tax Appeals could be binding upon them. Second, as the Connecticut Supreme Court concluded in Robertson v. Stonington, 253 Conn. 255, 259-63, 750 A.2d 460 (2000), even if there were some impropriety in the contractual arrangement between a taxpayer and its attorney or representative, public policy is best served by having the Court of Tax Appeals stick to tax matters, while leaving questions about tire unauthorized practice of law or champertous agreements involving attorneys to the attorney-discipline process.
As the Connecticut court noted, two public policies are at issue — ’’the public policy against the unauthorized practice of law, and the public policy in favor of fair and accurate taxation.” 253 Conn. at 260-61. The court noted that “no public policy . . . discourages bringing valid tax appeals” and that there was no evidence in its case drat the tax-consulting firm involved there “promotes frivolous tax appeals.” 253 Conn. at 261. The court tiren noted that the tax-consulting firm was not a party to the tax appeal, so that “[i]t would be inappropriate ... to make [an unfavorable] determination about [its] actions because [it] is not a party to the action before this court, and is not in any position to defend [itself] against the defendant’s accusations.” 253 Conn. at 261. Accordingly, tire court held that whether the tax-consulting firm was engaging in the unauthorized practice of law was an issue for disciplinary authorities and not for the tax-appeal process. 253 Conn. at 261-63.
Here too, the Court of Tax Appeals has expertise and authority over tax matters, not champerty, the unauthorized practice of law, or attorney-ethics rules. No impropriety in the arrangements between the taxpayers and its representatives would remove the government’s obligation to tax fairly. See Robertson, 253 Conn. at 263. The Court of Tax Appeals’ authority did not extend to the validity of the arrangements between the taxpayers and their representatives (and attorney) or to attorney-ethics compliance. Accordingly, we reverse and vacate its findings and rulings on these subjects, including the ruling that in the event these appeals were to proceed, the taxpayers would have to be represented by different counsel, representatives, or both.
III. The Judges of the Court of Tax Appeals Who Previously Rided on the Appeals of Three Taxpayers Shoidd Be Recused from Further Participation.
The three taxpayers discussed in the preceding section (the subject of extensive findings that we found beyond the Court of Tax Appeals’ jurisdiction) moved to disqualify each of the three judges on the court after it issued its initial ruling. These taxpayers argued that these judges instituted broad proceedings beyond the court’s authority, interfered with the taxpayers’ choice of counsel and tax representative, and made credibility findings about the attorney and tax representative that would cause a reasonable person to question whether these judges would give the taxpayers a fair hearing. The judges denied the motion to disqualify themselves.
Judges of the Court of Tax Appeals are required to follow the Kansas Code of Judicial Conduct. K.S.A. 2011 Supp. 74-2433(a); see Rule 601B (2013 Kan. Ct. R. Annot. 725). It requires that a judge be disqualified if the judge’s “impartiality might reasonably be questioned” or when the judge “has a personal bias or prejudice concerning the party or the party’s lawyer.” Rule 2.11(A)(1) (2013 Kan. Ct. R. Annot. 741). Personal bias does not include views held by a judge based on matters that arise during litigation or views on legal issues. State v. Foy, 227 Kan. 405, 411, 607 P.2d 481 (1980). But a hostile feeling, antagonism, or animosity toward one of the litigants or their attorney is a personal bias requiring disqualification. 227 Kan. at 411; see State v. Reed, 282 Kan. 272, Syl. ¶ 3, 144 P.3d 677 (2006). Merely reporting an attorney to disciplinary authorities for an apparent violation of attorney-ethics rules normally does not constitute personal bias; judges have a duty to report such issues in appropriate cases. See United States v. Mendoza, 468 F.3d 1256, 1261-63 (10th Cir. 2006).
In this case, however, we conclude that the impartiality of these judges might reasonably be questioned. Although the Court of Tax Appeals immediately signaled that it might lack the authority to consider the taxpayers’ appeals at all, it launched an inquisition into matters well beyond the limited question of whether the real parties in interest were before it. More significantly, the judges unanimously concluded that the sworn testimony of Jerry Chatam and the representations of attorney Terrill lacked credibility. The taxpayers would reasonably wonder whether these judges could give them a fair hearing while Chatam and Terrill continued to provide the taxpayers representation on remand.
In most cases, a judge’s findings in the course of a lawsuit — even credibility findings — are not cause for disqualification. See Foy, 227 Kan. 405, Syl. ¶ 3. Here, however, the findings were that the chosen attorney and tax representative for these taxpayers lacked credibility — and the findings came in an inquiry initiated solely by the court itself that went far beyond its statutory authority. Under these facts, a reasonable person would question the ability of these judges to continue impartially in this case on remand. We therefore conclude that their disqualification should be ordered under K.S.A. 2013 Supp. 77-621(c)(8) on the ground that their failure to recuse under these circumstances was unreasonable.
A reasonable person, considering this situation, would look at whether the parties to this appeal — the taxpayers- — could have confidence that the judges were, in fact, impartial. It is important that those appearing in our courts have confidence that they will receive a fair hearing. See In re Marriage of Underwood, No. 104,315, 2011 WL 6942931, at *5 (Kan. App. 2011) (unpublished opinion); State v. Bennett, No. 96,591, 2008 WL 588138, at *2 (Kan. App. 2008) (unpublished opinion); Tyler, Why People Obey the Law (2d ed. 2006). We do not know that the judges in this case could not set aside their previous findings to provide a fair hearing on remand. We simply conclude that a reasonable person would justifiably lack confidence in their impartiality, and that’s sufficient to make their failure to recuse unreasonable.
We should note that the judges refused to disqualify themselves in part based on the rule of necessity. Under that rule, a judge who otherwise would be disqualified may be required to continue because otherwise no judge would be available. See Geyh, Alfini, Lubet & Shaman, Judicial Conduct & Ethics § 4.04 (5th ed. 2013). The judges assumed for the purpose of their ruling that there was no authority to provide replacement judges in the event of their disqualification.
In the present posture of this appeal, however, we need not determine whether the rule of necessity precluded the disqualification of these judges. Since the court’s original ruling, one of its members has been replaced, and the court also has a chief hearing officer who is authorized by statute to act as a pro tern judge. See K.S.A. 2011 Supp. 74-2433; L. 2014, ch. 141, sec. 2. While the court must act with the vote of at least two members, it has one regular member and one pro tem member available who did not participate in the original proceedings. Thus, it now has the ability to act on these appeals without the participation of any of the judges whose disqualification was sought by the taxpayers.
Because of these changes while this appeal has been pending, we have not thoroughly reviewed all potential authorities under which the Governor might appoint pro tem judges because, given tlie current makeup of the court, it is not necessary for us to do so. We do not foreclose the possibility that additional pro tem judges may be appointed to the Court of Tax Appeals. See K.S.A. 2011 Supp. 77-514(e), (f); K.S.A. 2011 Supp. 74-2433; L. 2014, ch. 141, sec. 2; see also Johnson v. Darr, 114 Tex. 516, 517, 272 S.W. 1098 (1925) (noting that case was decided entirely by pro tem judges after all regularly appointed judges were disqualified).
The County also raised three other objections to the taxpayers’ presentation on appeal of this disqualification issue.
First, it argued that the taxpayers did not follow the provisions of K.S.A. 20-311d, a statute that provides the method for seeking disqualification of a district judge. We find nothing in that statute that would make it applicable to the disqualification of a judge in an administrative hearing. A provision of the Kansas Administrative Procedure Act, K.S.A. 2011 Supp. 77-514(c), applies to such cases, not K.S.A. 20-311d. See K.S.A. 2011 Supp. 74-2426(a); Westboro Baptist Church, Inc. v. Patton, 32 Kan. App. 2d 941, 946, 93 P.3d 718, rev. denied 278 Kan. 852 (2004).
Second, it argued that the taxpayers failed to file a motion to reconsider the judges’ denial of the recusal motion. The County cites K.S.A. 2011 Supp. 74-2426(b), which provides that “[n]o final order of the [Court of Tax Appeals] shall be subject to review . . . unless the aggrieved party first files a petition for reconsideration of that order . ...” In this case, the motion to disqualify the judges was filed while the taxpayers’ motion to reconsider the original order of the Court of Tax Appeals dismissing the appeals and making other findings was pending.
The problem with the County’s argument is that the order denying recusal was not a “final order” under K.S.A. 2011 Supp. 74-2426(b). “Final order” is synonymous with “final agency action.” Norris v. Kansas Employment Security Bd. of Review, 50 Kan. App. 2d 69, 76-77, 321 P.3d 28 (2014). And the final agency action is its determination of the substantive rights of the parties before it, such as the ruling on the taxpayers’ valuation appeals, not its procedural rulings along the way. The Kansas Judicial Review Act separately defines “final agency action” and “nonfinal agency action,” including as nonfinal those “part[s] of an agency . . . process that the agency intends. . . to be . . . procedural. . . K.S.A. 77-607(b)(2). The final agency action in this case initially was its original order denying relief to each of the taxpayers. The taxpayers sought reconsideration of that final agency action as required by K.S.A. 2011 Supp. 74-2426(b). No further action was required to preserve the judicial-disqualification issue, a purely procedural matter, for judicial review.
Third, it argued that a court has no authority to remove a judge of the Court of Tax Appeals. The County based its argument on the separation-of-powers doctrine, arguing that a court cannot remove an administrative-law judge in the Executive Branch. But the County confuses what is actually at issue in this case. We are not called upon to remove any judges from the Court of Tax Appeals; we are only called upon to determine whether any of these judges should be disqualified from further participation in this appeal. The legislature has clearly indicated that Court of Tax Appeals judges may be disqualified from a particular proceeding for bias, prejudice, or personal interest. See K.S.A. 2011 Supp. 77-514(b), (c); K.S.A. 2011 Supp. 74-2426(a).
We reverse the decision of the Court of Tax Appeals in each of the appeals, vacate its unauthorized findings and rulings on the non-tax issues, and remand the cases with directions for further proceedings consistent with this opinion. | [
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Arnold-Burger, J.:
Michael Chubb is an involuntary patient in the Kansas Sexual Predator Treatment Program at Larned State Hospital. On appeal he contends that the district court erred in summarily dismissing his petition filed under K.S.A. 60-1501. Chubb alleges four errors on appeal. First, he contends that his liberty interests were infringed when his brother was restricted from visiting Chubb at the facility. We find that Chubb has no liberty interest in a visit from his brother and even if he did his due process rights were not violated; thus, this claim fails.
Next, he asserts that his liberty interest in receiving mail was unconstitutionally restricted without due process when the hospital instituted a policy restricting purchases of consumable items to three vendors. But we find that the three-vendor policy does not implicate a constitutional right and even if it did the policy is reasonably related to a legitimate government purpose; thus, this claim also fails.
Third, Chubb argues that tire grievance process was unacceptable and the inherent delays resulted in a systemic violation of due process. Because Chubb fails to allege or establish shocking and intolerable conduct or continuing mistreatment of a constitutional stature, which is necessary to maintain a claim under K.S.A. 60-1501, his claim fails.
And finally, Chubb alleges that the affidavits submitted by the Kansas Department for Aging and Disability Services (KDADS) were invalid and were improperly considered by the district court. Because we find the affidavits meet all necessary requirements, we reject Chubb’s claim.
Accordingly, the decision of the district court summarily dismissing Chubb’s petition under K.S.A. 60-1501 is affirmed.
Factual and Procedural History
Chubb, a patient within the Kansas Sexual Predator Treatment Program at Larned State Hospital, wanted to receive a visit from his brother. His brother filed the required visitation application with die hospital on June 14, 2011. In the application, it was indicated that the brother had been convicted of a “CSC 2nd” offense. When asked what “CSC 2nd” meant, Chubb indicated his brother had been convicted of criminal sexual conduct second degree. See Mich. Comp. Laws § 750.520c(2). On July 8, 2011, Chubb was informed that his brother’s application was denied until his brother provided documentation that he completed some form of sexual offense treatment.
In addition, on September 13, 2011, a memo was posted within the facility informing the residents that they could, from that point forward, only purchase their consumable goods from three particular vendors, which meant that they could no longer receive consumable goods from family or other vendors. This was a blanket policy applicable to all patients.
Finally, at the time Chubb filed his K.S.A. 60-1501 petition, he had 15 grievance issues yet to be resolved within the hospital’s grievance process. He claimed that they were 6 to 8 months old.
On October 7, 2011, Chubb filed a K.S.A. 60-1501 petition alleging (1) that his brother was denied access to the facility and was unable to visit Chubb, which denied Chubb his right under K.S.A. 2013 Supp. 59-29a22(b)(20) to visit his brother, without any due process; (2) that his right to receive items in the mail under K.S.A. 2013 Supp. 59-29a22(b)(15)(B)(iii), was restrictedwithoutduepro- cess, which led to (3) the violation of his right to use his personal possessions for their intended purpose; and (4) that his right to petition for the redress of grievances against the government, which could occur under K.S.A. 2013 Supp. 59-29a22, had been violated.
The district court summarily dismissed Chubb’s petition, finding that Chubb’s claims did not establish that the KDADS acted with deliberate indifference or shocking conduct. In addition, his claims were not of a constitutional stature and were statutory in nature. As such, a K.S.A. 60-1501 petition was not the appropriate vehicle to assert Chubb’s claims. Even if Chubb’s claims did rise to a constitutional stature, the statute restricting visitation did not specifically limit the KDADS’s discretion when restricting certain visitors, and Chubb received sufficient due process when he received notice that his brother would not be able to visit and had an opportunity to be heard through his individual therapist or the treatment team. With regard to the denial of Chubb’s right to receive items in the mail, the district court found that his right was not denied, but merely restricted, and the restriction only related to whom he could receive mail from; it did not restrict the content of the mail. Moreover, the posted notice was sufficient for due process because the change in policy was a blanket change that applied to all patients. The district court found Chubb’s grievance issue to be moot because nearly all of his grievances had been addressed during the litigation of his K.S.A. 60-1501 petition.
Chubb filed a timely notice of appeal.
Standard of Review
Kansas appellate courts have long held that in order to state a claim for relief under K.S.A. 60-1501, a petition must allege “shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” Johnson v. State, 289 Kan. 642, 648, 215 P.3d 575 (2009); see also Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998). “A [K.S.A.] 60-1501 proceeding must include allegations of a constitutional dimension. If an inmate does not assert deprivation of a constitutional right, a district court should grant tire State’s request for summary dismissal. [Citation omitted.]” Ramirez v. State, 23 Kan. App. 2d 445, 448, 931 P.2d 1265, rev. denied 262 Kan. 962 (1997); see also Anderson v. McKune, 23 Kan. App. 2d 803, 806-07, 937 P.2d 16 (“An inmate’s claim under K.S.A. 60-1501 must assert the deprivation of a constitutional right or the court is without jurisdiction to consider the claim. In the absence of such a claim, the petition should be summarily dismissed. [Citation omitted.]”), rev. denied 262 Kan. 959, cert. denied 522 U.S. 958 (1997). An appellate court exercises unlimited review of a summary dismissal. Johnson, 289 Kan. at 649.
On review, our task is to accept as true the allegations in Chubb’s petition in order to determine if the facts alleged and their reasonable inferences state a claim for relief. See Schuyler v. Roberts, 285 Kan. 677, 679, 175 P.3d 259 (2008). Chubb bears tire burden of alleging continuing mistreatment of a constitutional nature to avoid dismissal. See Anderson, 23 Kan. App. 2d at 807.
Conditions of Confinement of Sexually Violent Predators, In General
The statutory provisions regarding the involuntary commitment of sexually violent predators are found at K.S.A. 59-29a01 et seq. In order to be civilly confined, there must be a finding, beyond a reasonable doubt, that the person is a sexually violent predator. K.S.A. 2013 Supp. 59-29a07. This means that the person suffers from a mental abnormality or personality disorder that predisposes the person to likely commit repeated sexually violent acts, making the person a menace to the health and safety of others. K.S.A. 2013 Supp. 59-29a02. Although a finding of dangerousness alone is generally not enough to justify indefinite involuntary commitment, when it is coupled with an additional factor, such as mental illness or mental abnormality, such a commitment is permitted. Kansas v. Hendricks, 521 U.S. 346, 358, 117 S. Ct. 2072, 138 L. Ed. 2d 501 (1997). Moreover, there must be some proof that the committed person has serious difficulty controlling his or her dangerous behavior. Kansas v. Crane, 534 U.S. 407, 408, 122 S. Ct. 867, 151 L. Ed. 2d 856 (2002).
“Persons who have been involuntarily committed are entitled to more considerate treatment and conditions of confinement than criminals whose conditions of confinement are designed to punish.” Youngberg v. Romeo, 457 U.S. 307, 321-22, 324, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982). But because of their dangerousness and the need to protect society, sexually violent predators are different in terms of treatment and risk and may be subjected to different confinement conditions than other civilly committed individuals. See Merryfield v. State, 44 Kan. App. 2d 817, 823-24, 241 P.3d 573 (2010). And although courts have recognized that civilly committed sexually violent predators are entitled to fewer restrictions than convicted criminals serving a prison term, due to their dangerous character and propensity to re-offend, they have generally equated the conditions of their confinement with that of pretrial detention, rather than the less structured confinement of regular mental patients. But they may not be subjected to conditions that amount to “punishment” without due process. Young-berg, 457 U.S. at 320-21.
So it follows logically that tire rights afforded prisoners set a floor for the rights that must be afforded sexually violent predators. It is not always clear how much more expansive the rights of civilly committed dangerous persons are from those that are criminally detained. But a secure facility, whether it houses prisoners or dangerous civilly committed patients, has a legitimate interest in “maintaining institutional security and preserving internal order and discipline,” which “may require limitation or retraction” of the residents’ retained constitutional rights. Bell v. Wolfish, 441 U.S. 520, 546, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979); see also Salerno v. Corzine, No. 06-3547, 2013 WL 5505741, at *6 (D.N.J. 2013) (unpublished opinion) (“While courts of appeals have been reluctant to articulate a specific standard applicable to civilly committed individuals, they have found that restrictions are permissible so long as they advance the state’s interest in security, order, and rehabilitation.”). With this background in mind, we examine the constitutional deprivations alleged by Chubb.
Chubb’s Liberty Interest in a Visit From His Brother
In 2007, the Kansas Legislature adopted provisions granting residents of the Sexual Predator Treatment Program certain statutoiy rights. These are contained at K.S.A. 2013 Supp. 59-29a22. At issue here is K.S.A. 2013 Supp. 59-29a22(b)(20) which provides that each patient shall “[b]e permitted to see a reasonable number of visitors who do not pose a threat to the security or therapeutic climate of other patients or the facility.” This right, along with six others listed in K.S.A. 2013 Supp. 59-29a22(c),
“may be denied for cause after review by the superintendent of the facility or the superintendent’s designee, and may be denied when medically or therapeutically contraindicated as documented by the patient’s physician or licensed psychologist in the patient’s treatment record. The individual shall be informed in writing of the grounds for withdrawal of the right and shall have the opportunity for a review of the withdrawal of the right in an informal hearing before the superintendent of the facility or the superintendent’s designee. There shall be documentation of the grounds for withdrawal of rights in the patient’s treatment record. After an informal hearing is held, a patient or such patient’s representative may petition for review of the denial of any light. . . through the use of the grievance procedure.”
Chubb argues that this statutoiy right was violated when his brother was not permitted to visit him without first showing proof that he had completed a sex offense treatment program. He identifies the constitutional right at issue as a liberty interest in receiving visitors. In his petition he claimed that his constitutional due process rights were violated because “he has not received any notice, hearing, or any form of Due Process for the restriction of this right.” And finally, he contends, for the first time on appeal, that the visitation statute is void for vagueness because it does not identify what constitutes a “threat to the facility or to the therapeutic climate of others.” We will take each argument in turn.
Chubb does not have an independent liberty interest in receiving visitors.
A proceeding under K.S.A. 60-1501 must allege “shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” Johnson, 289 Kan. at 648. Chubb does not contend that any action by the KDADS amounts to shocking or intolerable con duct. Instead he rests his claims on the deprivation of a constitutional right. Chubb first identifies tire constitutional right at issue here as a liberty interest. Personal or individual liberty is generally defined as “[o]ne’s freedom to do as one pleases, limited only by the government’s right to regulate the public health, safety, and welfare.” Black’s Law Dictionary 1002 (9th ed. 2009). We note that protected liberty interests arise from two sources: (1) the Due Process Clause of the Fourteenth Amendment to the United States Constitution (“No State shall... deprive any person of life, liberty, or property without due process of law.”) and (2) die laws of the states. Williams v. DesLauriers, 38 Kan. App. 2d 629, 636-37, 172 P.3d 42 (2007).
Chubb argues that the liberty interest in receiving visitors derives from K.S.A. 2013 Supp. 59-29a22(b)(20) (that each patient shall “[b]e permitted to see a reasonable number of visitors who do not pose a threat to the security or therapeutic climate of other patients or tire facility”). So we next examine whether this statute creates a liberty interest, by turning to a very similar United States Supreme Court case.
In Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 458, 109 S. Ct. 1904, 104 L. Ed. 2d 506 (1989), the United States Supreme Court was examining a prison regulation, very similar to the statute at issue here, that allowed the institution to prohibit persons from visiting inmates that were a threat to security or were nonconducive to a prisoner’s successful re-entry into the community or were detrimental to the inmate’s rehabilitation. After noting that certain State-created liberty interests have been found to be entitled to due process protection, while others have not, the Court noted that this was not because of a finding that some interests were more significant than others, but instead it was based upon the language of the relevant statutes and regulations. 490 U.S. at 461. The Court found that the State may create a liberty interest in a number of ways.
“Neither the drafting of regulations nor their interpretation can be reduced to an exact science. Our past decisions suggest, however, that the most common manner in which a State creates a liberty interest is by establishing ‘substantive predicates’ to govern official decision-making, [citations omitted] and, further, by mandating the outcome to be reached upon a finding that the relevant criteria have been met.” 490 U.S. at 462.
When examining the regulation at issue, the Court found that it allowed certain staff discretion in deciding whether a visitor should be allowed admittance. 490 U.S. at 464.
“Visitors may be excluded if they fall within one of the described categories . . . but they need not be. Nor need visitors fall within one of the described categories in order to be excluded. The overall effect of the regulations is not such that an inmate can reasonably form an objective expectation that a visit would necessarily be allowed absent the occurrence of one of tire listed conditions. Or, to state it differently, tire regulations are not worded in such a way that an inmate could reasonably expect to enforce them against tire prison officials.” 490 U.S. at 464-65.
The Supreme Court concluded that die visitation regulation did not establish a liberty interest. 490 U.S. at 465.
Subsequent to Thompson, the United States Supreme Court again addressed the issue of the manner in which a statute or regulation may create a liberty interest in Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995). The Court questioned the mandatory versus discretionary statutory analysis that had developed over the years and noted that this focus has produced undesirable results. See 515 U.S. at 499 (Breyer, J., dissenting) (describing this as the “discretion-cabining approach”). First, it creates a “disincentive for States to codify prison management procedures in the interest of uniform treatment.” 515 U.S. at 482. When faced with a difficult and dangerous environment, prison administrators often find it necessary to adopt mandatory and uniform procedures to guide staff and prevent widely disparate treatment. By requiring these regulations to allow discretion to avoid a finding of a liberty interest, these facilities are forced to either have “scarcely any regulations” or to confer “standardless discretion on correctional personnel.” 515 U.S. at 482.
Second, it has led to the involvement of the courts in the day-to-day management of the prisons, instead of affording “appropriate deference and flexibility to state officials trying to manage a volatile environment.” 515 U.S. at 482. The Court noted that since the mandatory‘versus discretionary analysis was first outlined in Hewitt v. Helms, 459 U.S. 460, 103 S. Ct. 864, 74 L. Ed. 2d 675 (1983), federal courts have been inundated with claims of liberty interests in treatment that seems to be part of the ordinary incidents of prison life such as the right to participate in boot camp programs, the travel limit on furloughs, tire right to receive a tray lunch rather than a sack lunch, the right to receive a paperback dictionary because it does not present a threat to the order and security of the prison, the freedom from transfer to a smaller cell without electrical outlets for televisions, the right to a prison job, and a liberty interest in not being placed on a food loaf diet. Sandin, 515 U.S. at 483. Faced widr this frustration at the “squandering [of] judicial resources with little offsetting benefit to anyone,” the Supreme Court found that it was time to return to basic due process principles. 515 U.S. at 482. Although states may, under certain circumstances, create liberty interests which are protected by tire Due Process Clause, “these interests will be generally limited to freedom from restraint” which imposes “atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” 515 U.S. at 484.
Of import here is the fact that even though the Sandin decision “abandons an approach that in practice is difficult to administer and which produces anomalous results,” the Court specifically did not overrule the Thompson Court’s conclusion that there was no liberty interest implicated in the State’s visitation policy. 515 U.S. at 484 n.5. After Sandin, the Tenth Circuit Court of Appeals has “repeatedly and consistently disavowed a liberty interest in visitation.” Dennis v. Tate, No. Civ-11-1303-D, 2012 WL 5289421 (W.D. Okla. 2012) (unpublished opinion) (citing Marshall v. Morton, 421 Fed. Appx. 832, 838 [10th Cir. 2011] [stating that restrictions on a prisoner’s visitation “ ‘are not different in such degree and duration as compared with the ordinary incidents of prisoner life to constitute protected liberty interests under the Due Process Clause’ ”], cert. denied 132 S. Ct. 1020 [2012]).
Our court first examined Sandin just a few months after its release in Davis v. Finney, 21 Kan. App. 2d 547, 556, 902 P.2d 498 (1995). The panel examined Hewitt and Thompson and the discretion-cabining approach taken in those cases as well as the change in approach taken in Sandin. The Davis court adopted both the discretion-cabining approach and, in the alternative, the atypical-hardship approach. 21 Kan. App. 2d at 558-59. The Kansas Supreme Court adopted this dual approach in determining the existence of a liberty interest in Amos v. Nelson, 260 Kan. 652, 923 P.2d 1014 (1996). The court clarified that this is a two-part test, finding that the discretion-cabining approach serves as the threshold test. So only if the statutory language is mandatory, does the court even examine whether the statute imposes an atypical and significant hardship on the inmate. 260 Kan. at 666.
The statute applied here, like Thompson, contains discretionary, not mandatory language. It provides that the Sexual Predator Treatment Program may exclude visitors if they pose a threat to the security or therapeutic climate of other patients or the facility. Moreover, the regulation adopted to “ensure the resident’s rights to receive or refuse visitors,” SECURE-118, states that the Sexual Predator Treatment Program “may restrict former residents or known felons from visiting. A resident may petition his treatment team for waiver of this rule.” (Emphasis added.) See K.S.A. 2013 Supp. 59-29a22(d) (The agency “shall establish procedures to assure protection of patients’ rights guaranteed under this section.”).
So under the Amos standard, because the visitation statute allows significant discretion on the part of program staff, we need not even consider whether the statute imposes an atypical and significant hardship on the resident. But even if we were to examine the Sexual Predator Treatment Program’s visitation policy under the lens of Sandin and the second step in Amos, we do not believe that limiting visitation by convicted felons, particularly those who have committed sexual offenses, absent a waiver by staff, imposes atypical and significant hardship on the residents in relation to the ordinary incidents of life in a confined and dangerous environment such as the Sexual Predator Treatment Program. See also Billups v. Galassi, No. 99-1460, 2000 WL 6200 (7th Cir. 2000) (unpublished opinion) (denial of right to visit with a specific visitor is not an atypical and significant hardship); Robinson v. State, 198 Kan. 543, 546, 426 P.2d 95 (1967) (sheriffs rule restricting visits to cer tain weekdays and limiting visitors not an infringement upon any constitutional right).
According to affidavits presented by KDADS, visitation requests are processed through the resident’s primaiy therapist who examines whether the visitor has any prior convictions, particularly sex offenses. If the visitor has a prior sex offense, it is viewed to be detrimental to the resident’s therapy if the visitor has not also completed sex offense treatment. Otherwise, the visits may be counter-therapeutic. Two more levels of review are accomplished, first to the resident’s Treatment Team and then to the Clinical Team (also called Leadership Team), made up of clinicians, administrative staff, and unit leaders, before a final recommendation from the Clinical Team is made. The visit may be approved, denied, or denied pending receipt of further information. In Chubb’s case, because his brother has a conviction for a sex offense, his visit was denied pending receipt of further information — proof of sex offense treatment. No proof was ever submitted. Chubb was advised that he could resubmit a request for his brother’s visitation at any time he had such proof. Chubb was not absolutely denied visitation with his brother, a convicted sex offender, it was merely made contingent upon proof that his brother had completed sex offender treatment, a restriction placed by his treatment staff in an effort to protect the security needs and therapeutic climate of both Chubb and other patients in the facility. We do not view this as a significant hardship.
Chubb’s right to procedural due process was not denied.
The Due Process Clause itself, rather than a state statute or regulation, can be the “wellspring” of a protected liberty interest. Sandin, 515 U.S. at 489 (Ginsburg, J., dissenting); see Wilkinson v. Austin, 545 U.S. 209, 221, 125 S. Ct. 2384, 162 L. Ed. 2d 174 (2005) (“liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word liberty’ ”).
Although Chubb does not specifically state whether he is alleging a violation of substantive due process or procedural due process, his identification of the essential elements as notice and an opportunity to be heard inform us that his claim is one of the denial of his right to procedural due process. See State v. Becker, 36 Kan. App. 2d 828, 836, 145 P.3d 938 (2006) (“Notice is a procedural right rather than a substantive right.”), rev. denied 283 Kan. 932 (2007).
The first determination a court must make when reviewing a procedural due process claim is whether a protected liberty or property interest is involved. It is only when a court finds a protected interest is implicated that it must then determine the nature and extent of die process that is due. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409, 49 P.3d 1274 (2002). The United States Supreme Court has recognized the difficulty in defining a liberty interest under the Fourteenth Amendment Due Process Clause “with exactness.” Meyer v. Nebraska, 262 U.S. 390, 399, 43 S. Ct. 625, 67 L. Ed. 1042 (1923).
“[Liberty] denotes not merely freedom from bodily restraint but also the right of tire individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. [Citations omitted.]" 262 U.S. at 399.
But specifically, with regards to the right of a person confined in a secure facility to visitation, the United States Supreme Court has opined that it “[cannot] seriously be contended, in light of our prior cases — that an inmate’s interest in unfettered visitation is guaranteed directly by the Due Process Clause.” Thompson, 490 U.S. at 460. Accordingly, the right to unfettered visitation does not spring directly from the Due Process Clause. As Justice Kennedy pointed out in his concurring opinion in Thompson, a ban on all visitation certainly may implicate the protections of the Due Process Clause. 490 U.S. at 465. But there is a recognition in Thompson that restrictions may be placed on visitation without implicating a liberty interest and its attendant due process requirements. What we have here is a restriction virtually identical to the one at issue in Thompson. As such, we reach the same conclusion as the United States Supreme Court and find that a liberty interest is not implicated under tire facts at issue here.
Even if we examine other constitutional rights that could be implicated, such as the First Amendment right to association, the United States Supreme Court has found that it is one of the rights least compatible with secured detention. “[Njumerous associational rights are necessarily curtailed by the realities of confinement.” Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 132, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (1977). In addition, Chubb’s right of association with his brother was not completely denied. He was still allowed to speak to him by phone and mail. See Overton v. Bazzetta, 539 U.S. 126, 135, 123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003) (“Alternatives to visitation need not be ideal, however; they need only be available.”). The denial of visitation, which may have only been temporary, was not for a penological or punitive interest, but a security and therapeutic one. Accordingly, we can conceive of no constitutional right violated by the hospital’s decision to deny Chubb’s brother the right to visit until such time as he presented proof of sex offense treatment.
But even if we were to find a protected liberty interest at stake, the heart of a procedural due process claim are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 331, 291 P.3d 1056 (2013). The KDADS informed Chubb that his brother’s visitation application had been denied and that if documentation could be provided showing that the brother had received sex offender treatment, then the application would be reconsidered. This was all accomplished before the date of the proposed visit.
The program’s clinical staff has the right to restrict a patient’s visitors. Chubb does not challenge the authority of the program staff under SECURE-118. Instead he argues specifically that there was no evidence in this particular case that his brother posed any kind of threat, therefore, staff acted in an arbitraiy and capricious manner.
But with regard to procedural due process, that being notice and a meaningful opportunity to be heard, Chubb was given the opportunity to speak with his therapist about the..denial of his brother’s visitor application. In addition,.. K.S.A. 20,13 Supp. 59- 29a22(c) provides that if the resident is not satisfied with this informal resolution, he or she may petition for review of the denial of any right denied to him or her through use of the grievance procedure. There is no indication in the record that Chubb ever availed himself of this option. Therefore, even if Chubb had a right under the Due Process Clause to visitation, any procedural due process rights that Chubb had were not violated. It does not appear from the record that Chubb filed a grievance over the denial of his brother s visitation. This is significant because a petitioner must have exhausted available administrative remedies before seeking judicial review under a K.S.A. 60-1501 proceeding. Fletcher v. Nelson, 253 Kan. 389, Syl. ¶ 3, 855 P.2d 940 (1993).
In sum, Chubb’s claim is solely statutory. Because Chubb has no liberty interest in a visit from his brother and any procedural due process rights he had were not violated, we agree with the district court that his K.S.A. 60-1501 petition does not state a claim sufficient to establish a continuing violation of a constitutional stature and his claim fails.
Void for Vagueness
Chubb also contends that K.S.A. 2013 Supp. 59-29a22(b)(20) is unconstitutional because it is vague. Constitutional grounds for reversal asserted for the first time on appeal are not properly before the appellate court for review. Miller v. Bartle, 283 Kan. 108, 119, 150 P.3d 1282 (2007). There are several exceptions to the general rule that a new legal theory may not be asserted for the first time on appeal, including the following:
“ ‘(1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights; and (3) the judgment of the trial court may be upheld on appeal despite its reliance on the wrong ground or having assigned a wrong reason for its decision.’ ” In re Estate of Broderick, 286 Kan. 1071, 1082, 191 P.3d 284 (2008), cert. denied 555 U.S. 1178 (2009).
Chubb clearly did not raise this issue in the district court. But he argues, summarily, that at least two of the listed exceptions apply here. He contends that it is “an issue of constitutional stature, where the issue is finally determinative of the issue,” and “the question is necessary to serve the ends of justice or to prevent the denial of a fundamental right.” He argues, without support, that his constitutional right to due process will continue to be violated by the enforcement of a vague statute.
But we have already determined that Chubb has not been denied a fundamental right by the denial of his brother s visitation application and this is not an issue of constitutional stature. In addition, resolution of this matter will not be finally determinative. The patients’ bill of rights contained at K.S.A. 2013 Supp. 59-29a22, grants statutory rights to a resident, rather than taking rights away. See Merryfield v. Kansas Dept. of SRS, No. 104,004, 2010 WL 5490755, at *4 (Kan. App. 2010) (unpublished opinion) (K.S.A. 2009 Supp. 59-29a22[b][16] gives phone access rights to patients, it does not take them away, defeating the bases for a void-for-vagueness claim), rev. denied 291 Kan. 913 (2011). Even if this court found K.S.A. 2013 Supp. 59-29a22(b)(20) to be unconstitutionally vague, it would eliminate this statutory right and any argument that the statute itself grants a liberty interest, but it would not fully resolve tire issue of whether the denial of visitation in Chubb’s situation violated a liberty interest that springs directly from the Due Process Clause of the Fourteenth Amendment. Accordingly, we will not address this issue for the first time on appeal.
Chubb’s Constitutional Rights Relating to the Three-Vendor Limitation for the Purchase of Consumable Items
On September 13, 2011, a memo was posted within die facility informing the residents that they could, from that point forward, only purchase their consumable goods from three particular vendors, which meant that they could no longer receive consumable goods from family or other vendors. A reason for this policy change was not apparent within the memo.
Chubb contends that the district court erred when it summarily dismissed his claim. He argues that his right to receive items in die mail was violated by the KDADS when it adopted this policy. Chubb asserts that this policy implicated his liberty interest and accordingly his due process rights were violated when the KDADS made the decision to reduce the number of possible vendors without giving him an opportunity to be heard.
K.S.A. 2013 Supp. 59-29a22(b)(15) provides that residents have the right to send and receive items in the mail. “Residents may be restricted in receiving in the mail items deemed pornographic, offensive or which is deemed to jeopardize their individual treatment or that of others.” K.S.A. 2013 Supp. 59-29a22(b)(15)(B)(iii). This statute, like the right to receive visitors, is subject to the provision in K.S.A. 2013 Supp. 59-29a22(c) that allows this right to be individually denied for “cause” after review by the superintendent of the facility or the superintendent’s designee. Once the right is denied, the individual must be informed in writing of the grounds for withdrawal of the right and shall have the opportunity for a review of the withdrawal of the right before the superintendent of the facility or the superintendent’s designee. Accordingly, the right to send and receive mail is specific to the patient.
Chubb argues that the new three-vendor policy denies him his statutory right to receive sealed mail that does not otherwise violate the policy. But Chubb does not allege an individual denial of this right. In other words, he does not claim that there is an approved item that he wishes to purchase that he cannot receive from one of the three approved vendors. Likewise, with regards to his right to spend money as he wishes under K.S.A. 2013 Supp. 59-29a22(a)(22), he does not allege that approved items from the vendors are more expensive than he could purchase elsewhere. Accordingly, he has neither alleged nor pursued an internal grievance for the denial of his right to receive mail. Instead, he contends that the newly adopted policy in general violates his due process rights. He claims that correspondence between an inmate and an outsider implicates his First Amendment right to freedom of speech and its denial absent any legitimate governmental interest is shocking and intolerable conduct or continuing mistreatment of a constitutional nature. We view this as a substantive due process claim.
Substantive due process claims involve a narrow range of fundamental interests such as the right to bear children, the right to marry, and other lights-closely tied to the Bill of Rights in the United States Constitution. See Taylor v. Kansas Dept. of Health and Environment, 49 Kan. App. 2d 233, 244-45, 305 P.3d 729 (2013). Substantive due process protects an individual from arbitrary government action that either furthers no legitimate governmental interest or is so outrageous that it “ ‘shocks the conscience.’ ” 49 Kan. App. 2d at 244. This seems to be what Chubb is alleging as it relates to the three-vendor policy. So first, we must determine whether there is a fundamental constitutional right at stake here.
There is no fundamental constitutional right implicated by the three-vendor policy.
Chubb cites Collier v. Nelson, 25 Kan. App. 2d 582, 966 P.2d 1117, rev. denied 266 Kan. 1107 (1998), for the proposition that correspondence between an inmate and an outsider implicates the right to freedom of speech under the First Amendment and a qualified liberty interest that is protected from governmental suppression. Our Supreme Court, as well as the United States Supreme Court, has designated freedom of speech as a fundamental constitutional right. See Thornhill v. Alabama, 310 U.S. 88, 95, 60 S. Ct. 736, 84 L. Ed. 1093 (1940); State v. Russell, 227 Kan. 897, 900, 610 P.2d 1122 (1980). But an examination of the Collier decision reveals that it does not support Chubb’s claim in the context of receiving consumable goods from multiple vendors.
Collier involved a prisoner’s right to send mail by limiting the number of first class stamps a prisoner could possess. Citing United States Supreme Court precedent, the court found that correspondence between an inmate and an outsider necessarily implicated freedom of speech guaranteed under the First Amendment. 25 Kan. App. 2d at 585 (citing Procunier v. Martinez, 416 U.S. 396, 408-09, 94 S. Ct. 1800, 40 L. Ed. 2d 224 [1974], overruled in part by Thornburgh v. Abbott, 490 U.S. 401, 413-14, 109 S. Ct. 1874, 104 L. Ed. 2d 459 [1989]). The Supreme Court in Thornburgh recognized that “[t]he implications of outgoing correspondence for prison security are of a categorically lesser magnitude than the implications of incoming materials.” 490 U.S. at 413; see also Treff v. Galetka, 74 F.3d 191, 195 (10th Cir. 1996) (same). We fail to see how tire prison policy limiting die number of vendors impli cates the First Amendment. It has no application to a patient’s freedom of speech.
Although Chubb does not claim a general liberty interest with regards to the three-vendor policy (only a qualified fundamental liberty interest based on the First Amendment), if he did, it too would fail. Again, even if he were able to establish a liberty interest was created by the adoption of K.S.A. 2013 Supp. 59-29a22(b)(15) and (22) (the statutory right to receive mail and the statutory right to spend money), he is unable to establish the second prong of the analysis, that the restriction in the number of vendors imposes an atypical and significant hardship on residents in relation to the ordinary incidents of life in a confined and dangerous environment such as the Sexual Predator Treatment Program. See Amos, 260 Kan. at 666. We find that it does not. As we discuss later in this opinion, patients have been given a wide range of purchasing options while still giving deference to the hospital’s need to prevent contraband from entering the facility that would be detrimental to both the safety and the therapeutic needs of the patients.
Instead of a qualified liberty interest, as alleged by Chubb, we realize that this court has recognized in tire past that K.S.A. 2013 Supp. 59-29a22(b)(15) establishes a patient’s property interest in receiving mail. See Merryfield v. Kansas Dept. of SRS, No. 102,384, 2009 WL 5206252 (Kan. App. 2009) (unpublished opinion). The statute requires that a patient be allowed to send and receive sealed mail subject to certain limitations and supports that right by providing a process to review any alleged denial of the right for “cause.” K.S.A. 2013 Supp. 59-29a22(b)(20) and (c). Likewise, a panel of this court has found that the same three-vendor policy at issue here implicates the patient’s property right to spend his or her money under K.S.A. 2Q13 Supp. 59-29a22(b)(22). See Pew v. Sullivan, 50 Kan. App. 2d 106, 329 P.3d 496 (2014).
A property right is defined as “the right to specific property, whether tangible or intangible.” Black’s Law Dictionaiy 1437 (9th ed. 2009). Property is further defined as “[t]he right to possess, use, and enjoy a determinate thing; . . . the right of ownership.” Black’s Law Dictionary 1335 (9th ed. 2009). Moreover, under the Due Process Clause of the Fourteenth Amendment “[a] protected property right must have some ascertainable monetary value.” Landmark Nat’l Bank v. Kesler, 289 Kan. 528, 545, 216 P.3d 158 (2009). We fail to see any monetary value in either the right to receive mail or the right to spend one’s money. Chubb makes no allegation that he could obtain the same items cheaper from another source. In order to constitute a protected liberty or property interest for Fourteenth Amendment purposes, an individual must have a legitimate claim of entitlement to it. The interest must be more tiran an abstract need or desire and more than a unilateral expectation. Murphy v. Nelson, 260 Kan. 589, 598, 921 P.2d 1225 (1996).
Moreover, neither of these statutory provisions implicates a fundamental constitutional right sufficient to demonstrate a substantive due process claim regarding the three-vendor policy. Of the few courts that have addressed this issue, none have found any constitutional right at stake, let alone a fundamental one. Torres v. Cate, No. C 12-6236 LHK (PR), 2013 WL 1097997, at *2 (N.D. Cal. 2013) (unpublished opinion) (“The Due Process Clause protects persons against deprivations of life, liberty, and property without due process of law. It does not guarantee prisoners a right to purchase property from outside vendors, or to purchase property at all.”); Ciempa v. Jones,745 F. Supp. 2d 1171, 1199 (N.D. Okla. 2010) (“Incarceration necessarily carries with it restrictions on a prisoner’s ability to purchase items of his or her choosing.”); Davis v. Powers, No. C08-5751, 2010 WL 2163134, at *9 (W.D. Wash. 2010) (unpublished opinion) (institutional requirement of sexually violent predators to buy or receive property from only approved vendors does not rise to level of constitutional significance); String-ham v. Hubbard, No. CIV S-05-0898 GEB DAD P., 2006 WL 3053079, at *4 (E.D. Cal. 2006) (unpublished opinion) (“Although protected property interests may arise from state law, plaintiff has cited no California law that gives him a protected interest in making purchases from multitudes of vendors.”).
Likewise, we do not view the policy in question as denying Chubb any constitutional right, and certainly not a fundamental one. He may spend his money as he chooses, and he may receive things through the mail.
Accordingly, we find that Chubb’s substantive due process rights are not implicated by the three-vendor policy.
The three-vendor policy advances a legitimate government interest.
But even if we were to find a fundamental constitutional right at stake, we must next examine whether the regulation advances a legitimate government interest or is arbitraiy.
In determining whether government action in restricting an inmate’s constitutional right is justified or arbitraiy, the United States Supreme Court, in Turner v. Safley, 482 U.S. 78, 89-91, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), established four considerations a court should use when weighing restrictions on a fundamental liberty against the government interests necessitating the restrictions. See Rice v. State, 278 Kan. 309, 321, 95 P.3d 994 (2004) (citing Turner with approval). First, the court must determine whether a restriction is rationally related to a legitimate government interest. If so, the court must then consider whether the government has left alternative means for the individual to exercise tire restricted right. Third, the court should consider what effect an accommodation of the right would have on guards, other inmates, and prison resources. Finally, the court should consider whether alternative restrictions are available that would serve the government’s interest without impinging upon the protected constitutional right. Turner, 482 U.S. at 89-91.
A modified application of the Turner factors has been used in the civil confinement context, recognizing that the legitimate government interests are narrower than in the prison context, i.e., the government interest cannot be penological. See, e.g., Pesci v. Budz, 730 F.3d 1291, 1296-97 (11th Cir. 2013) (applying modified four-part Turner test to claim of unreasonable censorship of newsletter within the sexually violent predator unit); Rivera v. Rogers, 224 Fed. Appx. 148,151 (3d Cir. 2007) (applying Turner test to analyze claim by civilly committed individuals alleging violation of First Amendment right by mail-opening practice at hospital); Salerno v. Corzine, No. 06-3547, 2013 WL 5505741, at *7-9 (D.N.J. 2013) (unpublished opinion) (discussing Turner test in light of First Amendment claim related to treatment requirement that patients discuss previous sexual misconduct); Marsh v. Liberty Behavioral Health Care, Inc., No. 2:06-CV-125-FtM-34SPC, 2008 WL 821623, at *5 (M.D. Fla. 2008) (unpublished opinion) (applying Turner test to claim of violation of right to free exercise of religion), aff'd 330 Fed. Appx. 179 (11th Cir. 2009); Beaulieu v. Ludeman, No. 07-CV-1535, 2008 WL 2498241, at *20 (D. Minn. 2008) (unpublished opinion) (applying Turner to analyze restrictions on sexually violent predator telephone privileges); Ivey v. Mooney, 2008 WL 4527792, at *4-5 n.7 (D. Minn. 2008) (using Turner test despite alleged violation of statute, not specifically stated violation of constitutional right); Francis v. Watson, No. 3:05-2499-JFA-JRM, 2006 WL 2716452, at *3 (D.S.C. 2006) (unpublished opinion) (right to free exercise of religion); Willis v. Smith, No. C04-4012-MWB, 2005 WL 550528, at *14 (N.D. Iowa 2005) (unpublished opinion) (applying Turner to mail room procedures in a civil commitment facility).
In adopting the four-part test, the United States Supreme Court in Turner specifically acknowledged die deference the courts should extend to the professional judgment of the executive branch to determine the needs of the facility and die persons under its care. See 482 U.S. at 84-85 (“Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of tiiose branches, and separation of powers concerns counsel a policy of judicial restraint.”); Rice, 278 Kan. at 322. Nevertheless, the Court noted that the four-part test it adopted adequately preserved this deference to professional judgment while providing a safeguard against arbitrary restrictions on fundamental liberties. Accordingly, the Turner test provides a suitable basis for this court’s review of Chubb’s complaints about the three-vendor restriction.
We first examine whether the three-vendor restriction is rationally related to a legitimate government interest. We find that it is. Unlike in Pew — where tire panel noted'that the KDADS had presented no reason for the policy, in this case the KDADS presented an affidavit setting forth the reasons for the policy. See 50 Kan. App. 2d at 111-12. Clifford Voelker, the Administrative Program Director of the Sexual Predator Treatment Program, noted that before the policy was adopted the program had a significant problem with contraband being sent to residents through the mail. Items sent from friends or family would contain contraband, such as tobacco products and cell phones, hidden within approved items to bypass security. Cell phones “are used by residents to access the internet to access pornography sites or to contact minors or previous victims.” In addition, tobacco and other contraband items were being trafficked within the facility and were either being sold at an increased cost to other residents or later used for extortion. By limiting the vendors to an approved list, the ability of the program to effectively monitor the entry of restricted items into tire facility is increased because the items are from a recognized vendor and, accordingly, not tampered with in advance. Chubb does not contest the stated reason for the policy. He merely challenges whether the KDADS rationale states a legitimate government interest.
This court has recognized that the State has a compelling interest in the treatment of sexually violent predators, which treatment can be adversely affected by their possession of prohibited materials. Williams v. DesLauriers, 38 Kan. App. 2d 629, 633, 638, 172 P.3d 42 (2007); see Steffey v. Orman, 461 F.3d 1218, 1222-23 (10th Cir. 2006) (“[I]t is well-established that prisons have broad discretion in regulating the entry of materials into prison.”). We do not believe any different standard applies to a secured facility housing dangerous mental patients. “ ‘ “[L]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.” ’ ” Sandin, 515 U.S. at 485; Bell v. Wolfish, 441 U.S. 520, 550, 555, 99 S. Ct. 1861, 60 L. Ed. 2d 447 (1979) (upholding ban on inmate receipt of certain hardback books and packages containing personal property and food in order to counter risk of smuggled contraband). Federal courts around the country that have examined similar policies — some more restrictive than the one here — have found them to be rationally related to a legitimate government interest of preventing contraband from entering the facility. See Payne v. Friel, No. 2:04-CV-844-DAK, 2007 WL 1100420, *8 (D. Utah 2007) (unpublished opinion) (the approved vendor policy not shown to prevent inmates from exercising protected rights), reversed in part on other grounds by 266 Fed. Appx. 724 (10th Cir. 2008); Lindell v. Frank, No. 02-C-21-C, 2003 WL 23198509, at *4 -5 (W.D. Wis. 2003) (unpublished opinion) (could only purchase from limited number of outside vendors if item not available in facility canteen).
The second Turner factor is whether the government has left alternative means for the individual to exercise the restricted right. In this case, if we are assuming for the purposes of this argument that the right at stake is a property right to receive mail and spend money as found in Pew and Merryfield, the policy gives residents a choice of vendors that carry a wide range of products. The list of three approved vendors, Keefe, Walkenhorst, and J.L. Marcus, was later expanded to remove J.L. Marcus (due to complaints by residents that it was difficult to work with) and Wal-Mart and Wal-greens were added to the approved list. It cannot be argued that Wal-Mart and Walgreens do not sell a wide variety of products. Again, Chubb makes no allegation that he could obtain the same items cheaper from another source, but even if he did, the mere fact that the facility’s valid security concerns make it more expensive to obtain certain items is not sufficient to establish a constitutional violation. See Payne, 2007 WL 1100420, at s8.
Next, the third Turner factor is the effect an accommodation of the right would have on guards, other inmates, and prison resources. Program Director Voelker indicated in his affidavit that restricting the number of vendors allows the safety-security staff and the property staff to better track the items. Absent the policy, hidden items are able to bypass security. See Lindell, 2003 WL 23198509, at *5 (Restricted vendor policy “reduces the need for staff to inspect a host of items mailed into the prison for contraband.”). Absent the policy, not only are significant prison resources expended searching received packages to try to find contraband items, if contraband is introduced into the facility it threatens the security of both guards and inmates. “When accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Turner, 482 U.S. at 90.
Under the fourth Turner factor, the court should consider whether alternative restrictions are available that would serve the government’s interest without impinging upon the protected constitutional right. The availability of obvious alternatives may be evidence that the regulation was an “ ‘exaggerated response’ ” to prison concerns. 482 U.S. at 90. But “[t]his is not a ‘least restrictive alternative’ test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.” 482 U.S. at 90-91. If the resident can point to an alternative that accommodates his or her constitutional rights with de minimis impact on the legitimate interests of tire institution, then it may be an indication that the regulation does not satisfy the reasonable relationship standard. 482 U.S. at 91. We cannot envision any less restrictive means to achieve the government’s interest, nor does Chubb suggest any. The requirement that items only be allowed into the hospital that are sent from recognized and approved vendors assures staff that there is no possibility of tampering. The list of approved vendors could be expanded, but the KDADS has already indicated a willingness to expand the list based on residents’ concerns. By the addition of Wal-Mart and Walgreens the products available for purchase are numerous.
Finally, as it relates to Chubb’s unique status as a mental patient, instead of a convicted criminal, Chubb does not allege, nor is there any evidence to suggest, that the policy was adopted to punish Chubb in particular or the residents in general.
In sum, we find that even if a fundamental constitutional right is implicated by the three-vendor policy, the policy advances a legitimate government interest and is not arbitrary.
Accordingly, Chubb has failed to state a claim under K.S.A. 60-1501 sufficient- to establish a continuing violation of a constitutional stature, and his claim regarding the three-vendor policy fails.
Sufficiency of the Grievance Procedure
Chubb argues that the district court erred when it summarily dismissed his claim requesting the district court to order the KD-ADS to provide a more viable means for the redress of a patient’s grievances. He restates this claim on appeal as being based on a “systemic due process violation.” But a petition under K.S.A. 60-1501 must allege “shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” Johnson, 289 Kan. at 648. Likewise, the first determination a court must make when reviewing a procedural due process claim, the only constitutional claim Chubb makes, is whether a protected liberty or property interest is involved. See Winston, 274 Kan. at 409.
Chubb does not claim a violation of a protected liberty or property interest. He claims only a statutory violation based upon K.S.A. 2013 Supp. 59-29a22(d) (“The department of social and rehabilitation services shall establish procedures to assure protection of patients’ rights guaranteed under this section.”). Chubb has not shown how any delay in the grievance procedure has resulted in an actual violation of his constitutional rights. See Merry field v. Jordan, No. 09-3259-JAR, 2011 WL 382551, at *4 (D. Kan. 2011) (unpublished opinion) (“Plaintiff has not alleged how any failure in the grievance procedure has resulted in an actual violation of his constitutional rights. Even taken as true, plaintiffs allegations do not state a deprivation of federal law, as there is no federal constitutional right to an institutional grievance procedure.”); Merryfield v. Kansas Dept. of SRS, No. 104,044, 2010 WL 5490755, at *4 (Kan. App. 2010) (unpublished opinion) (holding no constitutional violation for claim of inadequate grievance procedures brought in the context of K.S.A. 60-1501 petition), rev. denied 291 Kan. 913 (2011).
Moreover, Chubb does not claim shocking or intolerable conduct. See Merryfield v. Turner, No. 100,059, 2008 WL 4239118, at *5 (Kan. App. 2008) (unpublished opinion) (finding that even if grievance procedure was not strictly followed, the violation does not rise to the level of shocking or intolerable conduct), rev. denied 288 Kan. 832 (2009).
In fact, Chubb appears to agree that the delay in hearing his grievances was related to a systemic problem related to tire inability to properly track all of Chubb’s 46 grievances. Chubb acknowledged that the KDADS implemented a new giievance policy and his grievances were moving through the grievance process in a timely manner. We do not find this to be shocking or intolerable conduct on the part of the KDADS.
Accordingly, because he has failed to allege or establish shocking and intolerable conduct or continuing mistreatment of a constitutional stature, his claim fails.
The Affidavits Relied on by the KDADS
Chubb contends, for the first time on appeal, that the district court’s decision must be remanded because the district court relied on invalid affidavits submitted by tire KDADS. Chubb argues that the affidavits were not sworn or affirmed under oath before a person with the authority to administer the oath of affirmation.
The determination of the validity of an affidavit is a question of law over which this court’s review is unlimited. Meigs v. Black, 25 Kan. App. 2d 241, 243, 960 P.2d 770 (1998).
“An affidavit is a written statement, under oath, sworn to or affirmed by the person making it before some person who has the authority to administer an oath or affirmation. [Citation omitted.] Whether a document is an affidavit depends upon whether the [affiant] swore to the contents of the document. [Citation omitted.] A document that is simply acknowledged before a notary public is not an oath and does not meet the requirements for an affidavit. [Citation omitted.]” 25 Kan. App. 2d at 243.
First, Chubb never raised this objection before the district court. Issues not raised before the district court cannot be raised on appeal. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011). In addition, this appears to be an evidentiaiy challenge and 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.” See State v. Holman, 295 Kan. 116, 126, 284 P.3d 251 (2012).
Finally, Chubb’s argument is not persuasive. Both affidavits, just before tire affiants’ signatures, contain the following language: “I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.” K.S.A. 53-601 allows a declaration under penalty of perjury to be used with the same force and effect as an affidavit sworn to upon oath. Both also contain tire following language at the end of the affidavit: “Subscribed and sworn to before me” with the date, followed by a notary public signature and seal.
It is clear that tírese documents meet the requirements necessary to be deemed affidavits. Therefore, Chubb’s argument fails.
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ATCHESON, J.:
Respondent William N. Quary appeals the judgment of the Cowley County District Court involuntarily committing him as a sexually violent predator following a bench trial. Quary argues- — correctly in our view — that the district court improperly handled evidence the State offered through a pair of psychological experts. First, Quary contends the district court should not have considered otherwise inadmissible information the experts relied upon in reaching their conclusions as substantive evidence supporting the State’s case. Second, he contends the expert reports themselves should not have been admitted as evidence over his objection and reviewed by the district court as the finder of fact. But the errors are harmless because ample evidence properly considered and admitted supports die judgment, including Quary’s admissions and court records from his juvenile adjudications and criminal prosecutions. We, therefore, affirm.
The issues before us present comparatively narrow, interlocking evidentiary questions. We, therefore, dispense with a general narrative of the factual renditions the State and Quary presented during the trial. We discuss particular aspects of the record evidence as they bear on the points on appeal.
I. Sexually Violent Predator Act: General Precepts and Expert Testimony
Statutory Provisions
Under the Sexually Violent Predator Act, K.S.A. 59-29a01 et seq., a person may be indefinitely committed for treatment to a secured facility on the grounds of the Larned State Hospital. The State must prove the individual: (1) has been convicted of or charged with a crime designated as a sexually violent offense; (2) has a mental abnormality or personality disorder; (3) is likely to commit an act of sexual violence because of that abnormality or disorder; and (4) displays serious difficulty controlling his or her dangerous behavior. In re Care & Treatment of Williams, 292 Kan. 96, Syl. ¶ 3, 253 P.3d 327 (2011); see K.S.A. 2013 Supp. 59-29a02(a). Although a commitment action is civil rather than criminal, a respondent receives a broad range of procedural protections. The State must prove the required elements beyond a reasonable doubt. K.S.A. 2013 Supp. 59-29a07(a). The respondent has the right to legal'representation, to cross-examine witnesses, and to present evidence. K.S.A. 2013 Supp. 59-29a06; In re Care & Treatment of Ontiberos, 295 Kan. 10, 25, 40-42, 287 P.3d 855 (2012) (right to counsel; reversing commitment and remanding under Act where counsel for respondent was ineffective in challenging State’s evidence); In re Care & Treatment of Chadwick; No. 104,500, 2011 WL 3795483, at *4 (Kan. App. 2011) (unpublished opinion) (acknowledging respondent in commitment proceeding under the Act must be afforded an “opportunity to challenge the State’s evidence [and] present evidence of his own”). The respondent may request a jury trial. K.S.A. 2013 Supp. 59-29a06. If adjudged a sexually violent predator, the respondent has the right to appeal that determination. K.S.A. 2013 Supp. 59-29a07(a).
The Kansas rules of evidence generally govern proceedings under tire Act. See K.S.A. 60-402 (rules “apply in every proceeding, both criminal and civil, conducted by... a court in which evidence is produced” unless otherwise provided, in a “statute applicable to die specific situation”). Particularly peirtihent here, however, the Act modifies the way expert testimony may be presented and received as evidence during commitment proceedings. K.S.A. 2013 Supp. 59-29a06(c). By its express terms, K.S.A. 2013 Supp. 59-29a06(c) rejects K.S.A. 60-456(b), the evidence rule governing expert testimony, to expand the sources of information experts may use in forming their opinions. In material part, K.S.A. 2013 Supp. 59-29a06(c) states:
“The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If the facts or data are of a type reasonably relied upon by experts in tire particular field in forming opinions or inferences upon tire subject, such facts and data need not be admissible in evidence in order for the opinion or inference to be admitted.”
That language is drawn almost verbatim from the version of Federal Rule of Evidence 703 in effect until 2011. (The Federal Rules of Evidence were redrafted in 2011 to make them more comprehensible without altering their substantive effect. See Fed. R. Evid. 703 advisory committee note, 2011 Amendments.. Accordingly, federal caselaw is instructive on how K.S.A. 2013 Supp. 59-29a06(c) should be construed. See State v. Prine, 297 Kan. 460, 476-77, 303 P.3d 662 (2013) (court looks to federal authority construing Fed. R. Evid. 413 and 414 to apply comparable provision added to K.S.A. 60-455); State v. Miller, 284 Kan. 682, 690, 163 P.3d 267 (2007) (court reviews federal cases under Fed. R. Evid. 403 to construe similar language in K.S.A. 60-445); cf. In re Patterson, No. 107,232, 2013 WL 2395313, at *10 (Kan. App. 2013) (unpublished opinion) (noting Fed. R. Evid. 703 to be “nearly identical” to K.S.A. 59-29a06(c)).
The State’s Expert Evidence
Given the issues to be decided in a sexually violent predator commitment action, expert testimony commonly forms the backbone of the State’s case. The proceeding against Quary fits that pattern. Everyone agrees Quary has been convicted of a sexually violent crime. The State relied on the expert opinions of Dr. Jane Kohrs, a forensic psychologist employed by a private company providing services to the Department of Corrections, and Dr. Stephanie Adam, a psychologist at Lamed State Hospital. Both experts found Quary to have psychological defects satisfying the criteria for commitment under the Act. Each expert prepared a detailed written report outlining the salient historical information on which she relied and the relevant clinical conclusions she reached about Quary. Dr. Kohrs and Dr. Adam separately interviewed Quary as part of their clinical assessments of him. In those interviews, they gathered historical information from Quary and formed diagnostic impressions of him. They also reviewed court records, files from the Department of Corrections, and other documents in arriving at their expert opinions.
Quary opted to have the district court, rather than a jury, decide the case. During the trial, the State offered as exhibits the reports of Dr. Kohrs and Dr. Adam and tire documentary materials upon which they relied. Quary’s lawyer objected on tire grounds that the reports and documents were or contained inadmissible hearsay. The district court overruled the objection and admitted the reports and documents as evidence. On direct examination, the expert witnesses testified briefly and in general terms confirming the findings in their respective reports. Quary’s lawyer cross-examined them. The State called another witness and presented additional evidence. Quary testified but offered no countering experts or other witnesses. The district court found Quary to be a sexually violent predator under the Act and involuntarily committed him to die treatment program at Larned State Hospital. Quary has timely appealed that judgment.
II. Standard of Review
The points on appeal address the admission and use of evidence — information on which the State’s experts relied in forming their opinions and their reports outlining both that information and their conclusions — despite a contemporaneous hearsay objection from Quary. Relevance and materiality are undisputed, so those considerations do not shape our review. See State v. Berriozabal, 291 Kan. 568, 586, 243 P.3d 352 (2010) (an appellate court reviews de novo a contested determination of materiality); Wendt v. University of Kansas Med. Center, 274 Kan. 966, 975, 59 P.3d 325 (2002) (admission or exclusion of otherwise material evidence largely rests in district court’s sound discretion). The district court’s admission of evidence challenged as hearsay is subject to appellate review for abuse of discretion. See State v. James, 48 Kan. App. 2d 310, 323, 288 P.3d 504 (2012); Brick Masters, Inc. v. Murray & Sons Constr. Co., No. 107,426, 2013 WL 1729249, at *2 (Kan. App. 2013) (unpublished opinion).
A district court may be said to have abused its discretion if the result it reaches is “arbitrary, fanciful, or unreasonable.” Unruh v. Purina Milk, 289 Kan. 1185, 1202, 221 P.3d 1130 (2009). That is, no reasonable judicial officer would have come to the same conclusion if presented with the same record evidence. An abuse of discretion may also occur if the court fails to consider or to properly apply controlling legal standards. State v. Woodward, 288 Kan. 297, 299, 202 P.3d 15 (2009). A district court errs in that way when its decision “ 'goes outside the framework of or fails to properly consider statutory limitations or legal standards.’ ” 288 Kan. at 299 (quoting State v. Shopteese, 283 Kan. 331, 340, 153 P.3d 1208 [2007]). Finally, a district court may abuse its discretion if a factual predicate necessary for the challenged judicial decision lacks substantial support in the record. State v. Ward, 292 Kan. 541, Syl. ¶ 3, 256 P.3d 801 (2011), cert. denied 132 S. Ct. 1594 (2012) (outlining all three bases for an abuse of discretion).
In this case, the district court’s treatment of the information on which Dr. Kohrs and Dr. Adam relied turns on the proper interpretation of K.S.A. 2013 Supp. 59-29a06(c). And its admission of their reports similarly involves a more general application of the rules of evidence. Any abuse of discretion arose from a misunderstanding of the governing legal principles. The points, then, really depend upon how K.S.A. 2013 Supp. 59-29a06(c) and the evidence rules should be read, thus forming the applicable legal standards. That presents a question of statutory construction. So we ought to review that much of the district court’s decisionmaking without any particular deference. State v. Marks, 297 Kan. 131, 142, 298 P.3d 1102 (2013) (adequacy of legal basis for admitting evidence reviewed de novo, although other bases for admission or exclusion should be tested for abuse of discretion); Unruh, 289 Kan. at 1193 (“Interpretation of a statute is a question of law over which [an appellate] court has unlimited review.”).
III. Foundation for and Admissibility of Expert Opinions
Statute Permits Experts to Rely on Inadmissible Information
Under K.S.A. 2013 Supp. 59-29a06(c), expert witnesses testifying at a commitment proceeding may base their opinions on hearsay or other inadmissible information if that material is of the sort reasonably relied upon by professionals in their field. The plain language of the statute says as much. The federal courts have consistently construed Fed. R. Evid. 703 that way. Factory Mut. Ins. Co. v. Alon USA L.P., 705 F.3d 518, 523-24 (5th Cir. 2013); United States v. Ayala, 601 F.3d 256, 275 (4th Cir. 2010). And that construction of Fed. R. Evid. 703 is one of long standing. See United States v. Affleck, 776 F.2d 1451, 1456-57 (10th Cir. 1985); 4 Wein-stein’s Federal Evidence § 703.05[1] (2d ed. 2014). But otherwise inadmissible information on which an expert relies in forming his or her opinion may not be admitted as substantive evidence because of that reliance. Williams v. Illinois, 567 U.S_, 132 S. Ct. 2221, 2239-40, 183 L. Ed. 2d 89 (2012) (plurality opinion); United States v. Pablo, 696 F.3d 1280, 1287-88 (10th Cir. 2012); Pineda v. Ford Motor Co., 520 F.3d 237, 246-47 & n.14 (3d Cir. 2008); Affleck, 776 F.2d at 1457; 4 Weinstein’s Federal Evidence § 703.05[2], In other words, the information lacks an independent evidentiaiy foundation to be admitted and considered for its truth and, thus, as substantive evidence bearing on the ultimate legal issues. So a factfinder could not rely on drat information — in contrast to the expert opinion itself — to support a verdict or judgment.
But a factfinder may consider the inadmissible information to assess the worth of the expert opinion. If the foundational information reasonably supports the expert witness’ conclusions, the finder of fact may favorably consider those conclusions in deciding the controlling issues. Conversely, should the information fail to logically bolster the expert’s reasoning, the finder of fact may discount or discard those opinions as unworthy of belief. In that way, a factfinder may distinguish among experts offering conflicting conclusions by looking at the strength of the underlying information and its reasoned connection to those conclusions. See Williams, 132 S. Ct. at 2256 (Thomas, J., concurring) (the information on which an expert relies may be considered under Fed. R. Evid. 703 “ ‘only for the purpose of assisting the jury in evaluating an expert’s opinion’ ”) (quoting Fed. R. Evid. 703 advisory committee note, 2000 Amendments); Wilson v. Merrell Dow Pharmaceuticals, Inc., 893 F.2d 1149, 1153 (10th Cir. 1990) (inadmissible information or data may be “admitted for the limited purpose of informing tire jury of the basis of the expert’s opinion and not for proving the truth of the matter asserted” in that material); see also Fed. R. Evid. 703 advisory committee note, 2000 Amendments (“trial court . . . must consider the information’s probative value in assisting the jury to weigh the expert’s opinion . . . and the risk of prejudice resulting from the jury’s potential misuse of the information for substantive purposes”).
The Kansas Supreme Court recognized that construction of Fed. R. Evid. 703 in State v. Gonzalez, 282 Kan. 73, 87-88, 145 P.3d 18 (2006), while contrasting tire federal rule with expert testimony properly admitted under K.S.A. 60-456(b): The court noted Fed. R. Evid. 703 allows an expert to base his or her opinion on what would be inadmissible hearsay if the use of that information were “the customary practice in the expert’s specialty.” 282 Kan. at 88. The information, however, may “not [be] admitted as substantive proof . . . but for the limited purpose of showing the basis of tire expert’s opinion.” 282 Kan. at 88. We have no reason to believe the Kansas Supreme Court would impose some different interpretation on K.S.A. 2013 Supp. 59-29a06(c), given its operative language borrowed directly from Fed. R. Evid. 703.[1]
[l]Under K.S.A. 60-456(b), an expert testifying at trial must offer an opinion “based on facts or data perceived by or personally known or made known to the witness at the hearing.” That generally requires documents upon which an expert relies to be admitted into evidence. Gonzalez, 282 Kan. at 88. If the expert relies on other facts, he or she must have firsthand knowledge of them or be apprised of them by hearing witnesses testify to them at trial or by responding to a hypothetical question incorporating trial testimony. See Smith v. Estate of Hall, 215 Kan. 262, 265, 524 P.2d 684 (1974); Staudinger v. Sooner Pipe & Supply Corporation, 208 Kan. 100, 106, 490 P.2d 619 (1971); Casey v. Phillips Pipeline Co., 199 Kan. 538, 549-50, 431 P.2d 518 (1967). The limitations of K.S.A. 60-456(b) impose horse-and-buggy constraints on the bases for expert testimony in a supersonic age. See Clifford v. United States, 532 A.2d 628, 632-34 (D.C. 1987) (noting traditional methods of admitting expert testimony by requiring introduction of independent evidence of supporting facts or by posing hypothetical questions to be inefficient and open to abuse); Hickman v. Branson Ear, Nose & Throat, Inc., 256 S.W.3d 120, 122-23 (Mo. 2008) (noting salutary statutory, change eliminating requirement that expert testimony be elicited through hypothetical questions, rendering trial presentations “simpler, more direct, and less formulaic”); 4 Weinstein’s Federal Evidence § 703.05[1] (“Rule 703’s broadening of the permissible bases of expert opinion testimony . . . bringfs] tire practice in the courts in line with the practice of the experts themselves when they are not in court.”). We perceive experienced trial lawyers often tacitly agree to refashion those constraints into something more nearly resembling Fed. R. Evid. 703 in actual practice.
District Court Misapplied Information Used by State’s Experts
Here, the district court’s factual findings pronounced from the bench appear to treat inadmissible information contained in the expert reports and the supporting documents as substantive evi dence favoring the commitment of Quary. For example, the district court said it relied both on notes made by staff members who observed Quary at Larned State Hospital as he was undergoing evaluation and on reports of rules violations at various institutions where Quary had been detained. As to most of the particular findings, the district court identified multiple sources of the information on which it relied, including Quary’s statements during the clinical interviews with Dr. Kohrs and Dr. Adam. The district court sought to corroborate the experts’ conclusions by citing particular incidents recounted in the documents the experts reviewed. In doing so, the district court correctly considered that information to test the worth of tire expert opinions. In other words, that information tended to validate the expert testimony. But the district court also appeared to use those incidents to bolster its own legal determination that the State had proven Quary to be a sexually violent predator properly committed under the Act. To that extent, the district court improperly used the documents and the information in them as substantive evidence supporting the legal findings necessary for commitment. In doing so, the district court erred.
The journal entry did not clarify the district court’s factual findings. The journal entry simply recited generically that evidence was received at trial, made the requisite statutory findings under the Act, and ordered Quary involuntarily committed as a sexually violent predator.
District Court’s Error Was Harmless
Based on the record evidence and the district court’s findings, we conclude any error in the use of tire' expert evidence to be harmless. Properly admitted evidence firmly established the statutory requirements for Quary’s involuntary commitment. As we noted, Quary has been convicted of a sexually violent offense. The expert opinions of Dr. Kohrs and Dr. Adam effectively demonstrate the remaining elements of Quary’s mental abnormality or personality disorder, his likelihood of committing new acts of sexual violence, and his difficulty in controlling his behavior. Those expert opinions were unrebutted in the sense Quary offered no counter vailing opinions from mental health professionals. In the clinical interviews with Dr. Kohrs and Dr. Adam and in his trial testimony, Quary admitted and sought to defuse some of the sexually predatory and violent conduct in his past. The district court properly relied on those admissions to bolster its factual findings and conclusions.
The admissible evidence, particularly in the form of the expert testimony and Quary s own statements, furnished more than sufficient evidence to warrant the district court’s ultimate determination. The weight of the admissible evidence favoring the State’s position was overwhelming, and the district court viewed it that way. The district court neither suggested the case was a close one nor pointed to any significant evidence favoring Quaiy’s position. The district court acknowledged that Quary testified that he has reformed and would no longer engage in antisocial, sexually motivated behavior. The district court found the expert testimony to the contrary compelling.
In addition, the district court cited testimony the State presented from Capt. Janet Gardner, a supervisor at the Cowley County jail, concerning an incident involving Quary about 3 months before the trial while he was being held in the jail. Capt. Gardner responded to a request from a jailer during the facility’s II p.m. lockdown. She found Quary visibly angry and refusing to comply with tire customary lockdown procedure. When Capt. Gardner directed him to comply, Quary shook with rage and called her a “fucking bitch.” According to Capt. Gardner, as Quary began to comply, he turned toward her, grabbed his crotch, and shouted, “Suck my dick.” The district court credited Capt. Gardner’s testimony and found the incident undercut Quary’s representation that he had successfully curbed his antisocial behavior. For our purposes, that finding is significant because Capt. Gardner testified at the commitment trial, thus providing substantive evidence of the confrontation and Quary’s behavior.
In sum, given the weighty evidence properly admitted and considered supporting the district court’s judgment committing Quary under the Act, the misapplication of some of the information on which the experts relied as substantive evidence amounted to harmless error. We find Quary’s substantial rights were not compromised, and we are convinced the district court would have reached the same conclusion had the record evidence been considered in perfect fashion. See K.S.A. 2013 Supp. 60-261; State v. Torres, 294 Kan. 135, 143-44, 273 P.3d 729 (2012).[2]
[2] The district court’s treatment of the information upon which Dr. Kohrs and Dr. Adam relied illustrates the subtle difference between the proper use of that material under K.S.A. 2013 Supp. 59-29a06(c) and its impermissible use as substantive evidence. The distinction is particularly problematic in jury trials, since jurors may have a difficult time separating the two and confining their consideration of the information to assessing the strength of tire expert’s opinion. We needn’t plumb that aspect of K.S.A. 2013 Supp. 59-29a06(c) here because the case was tried to the district court. The drafters of Fed. R. Evid. 703 would typically prohibit the party calling an expert from detailing the inadmissible information underlying the witness’ opinions absent a ruling from the district court that the probative value outweighed the prejudicial impact. If that information were admitted, the authors of the rule would then require a limiting instruction on its use, if requested by the opposing party. See Fed. R. Evid. 703; Fed. R. Evid. 703 advisory committee note, 2000 Amendments.
State Fails to Show Independent Hearsay Exceptions for Information
On appeal, the State offered two arguments for treating various records and other documents on which Dr. Kohrs and Dr. Adam relied as substantive evidence the district court could have used to find Quary a sexually violent predator. We find neither to be persuasive.
Initially, the State says the underlying documents were authenticated as business records, as provided in K.S.A. 2013 Supp. 60-460(m), and, therefore, constituted admissible hearsay. But that proposition fails in two ways. First, the State relied on affidavits of the custodians of the records from both the Department of Corrections and Larned Hospital submitted with the documents in response to subpoenas issued under K.S.A. 2013 Supp. 60-245a. But K.S.A. 2013 Supp. 60-245a and the use of custodian affidavits as a prima facie basis to admit the subpoenaed documents as business records, as permitted in K.S.A. 2013 Supp. 60-460(m), apply only to nonparties. Here, the subpoenas were issued to agencies of the State, and the State is a party to this action. The procedures of K.S.A. 2013 Supp. 60-245a, therefore, are inapplicable.
Second, the affidavits would, at most, provide a foundation for the records themselves. But they would not have established a sufficient foundation for third-party hearsay statements reported in those records. See In re N.D.G., 20 Kan. App. 2d 17, 24, 883 P.2d 89, rev. denied 256 Kan. 995 (1994) (hearsay statements in hospital records must satisfy hearsay exception independent of business records exception to be admitted as evidence); State v. Davis, 2 Kan. App. 2d 698, 698-99, 587 P.2d 3 (1978), rev. denied 225 Kan. 846 (1979). The State would have to establish that the individuals making the statements reported in the documents were under some duty to do so, thereby satisfying the business records hearsay exception. K.S.A. 2013 Supp. 60-460(m) (sources of information in business records must “indicate their trustworthiness”); United States v. Ary, 518 F.3d 775, 787 (10th Cir. 2008) (trustworthiness of business records rests on supposition that “ ‘each actor in the chain of information is under a business duty or compulsion to provide accurate information’ ”) (quoting United States v. McIntyre, 997 F.2d 687, 699 [10th Cir. 1993]). Or the State would have to lay a foundation demonstrating another exception to admit drat second level of hearsay as substantive evidence. In re N.D.G., 20 Kan. App. 2d at 24; Ary, 518 F.3d at 787 (information in business record provided by an outsider to the business “must also fall within a hearsay exception, to be admissible”).
The State alternatively suggests the documents could be admitted as “official records” under K.S.A. 2013 Supp. 60-460(o). That hearsay exception applies to an authenticated copy “of an official record or of an entiy therein.” K.S.A. 2013 Supp. 60-460(o)(l). The term “official record” is not, however, defined in the rules of evidence. A survey of Kansas caselaw applying the exception demonstrates the documents must be prepared or compiled and then maintained by a government agency pursuant to a specific duty or function of the office. See State v. Hobbs, 276 Kan. 44, 52-53, 71 P.3d 1140 (2003) (county coroners formal report of death considered official record under K.S.A. 60-460(o)); State v. Bishop, 264 Kan. 717, 726-27, 957 P.2d 369 (1998) (monthly certification of Intoxilyzer 5000 breath test machine and certification of calibration solution official records); State v. Baker, 237 Kan. 54, Syl. ¶ 1, 697 P.2d 1267 (1985) (attested copy of journal entry from Kansas court official record); City of Overland Park v. Rice, 222 Kan. 693, 698-99, 567 P.2d 1382 (1977) (order of suspension of driving privileges by division of vehicles official record);State v. Kliewer, 210 Kan. 820, 824-25, 504 P.2d 580 (1972) (motor vehicle title official record); Ballhorst v. Hahner-Foreman-Cale, Inc., 207 Kan. 89, 96, 484 P.2d 38 (1971) (report of daily weather conditions prepared by United States Weather Bureau at Great Bend Airport official record). Although the documents needn’t be public records as such, they may be characterized as integral to a discrete agency task undertaken on a regular or routine basis. The clinical records and the Department of Corrections file, including disciplinary actions, related to Quaiy are not of that type. They contain detailed factual narratives about a variety of events related to him, rather than the focused and particularized information or data contained in official records — such as meteorological conditions on a given day in a given place or the certification of a specific Intoxilyzer for a particular month. Even if the records themselves satisfied K.S.A. 2013 Supp. 60-460(o), many of the narrative accounts would present double-hearsay problems, as we discussed with the business records exception. [3]
[3] The official records exception in K.S.A. 2013 Supp. 60-460(o) has no direct analog in the Federal Rules of Evidence. The exception for “public records” in Fed. R. Evid. 803(8) -is considerably broader, and the exception for “public records of vital statistics” in Fed. R. Evid. 803(9) is considerably narrower.
IV. Admissibility of Expert Reports
We turn now to Quaiy’s-second point challenging the admissibility of the written reports of Dr. Kohrs and Dr. Adam as evidence. In civil cases, experts designated as trial witnesses commonly pre pare written reports outlining their conclusions and the factual information on which they rely in reaching those conclusions. See K.S.A. 2013 Supp. 60-226(b)(6)(A)(ii) (requiring party to disclose the identity of any expert witness who may be called at trial and to furnish “the substance of the facts and opinions to which the expert is expected to testify”)- The reports from Dr. Kohrs and Dr. Adam contain what looks to be inadmissible hearsay. Dr. Adam’s 17-page, single-spaced report includes detailed descriptions of Quary’s medical treatment, criminal offenses, and sexual history without identifying the specific sources of information. Dr. Adam also cites incidents reported in progress notes or other documents from various institutions where Quary had been held. Those documents often do not identify the persons recounting the events or whether those individuals even had firsthand knowledge of the circumstances. So in Dr. Adam’s report, some of the information seems to rest on several layers of hearsay without an evidentiary foundation for admissibility. Dr. Kohrs’ 11-page report similarly cites other documents containing or summarizing events and incidents recounted by various unidentified sources who may or may not have had firsthand knowledge.
Because the expert reports themselves included inadmissible hearsay, they should not have been admitted over Quaiy’s objection, absent some additional foundation negating the objection. An expert report cannot serve as a device to smuggle otherwise inadmissible evidence into a case anymore than expert testimony can. An expert report certainly may be marked for identification and made part of the trial record, especially if a party refers to the report in examining the expert or other witnesses. The error here, however, is functionally no more prejudicial than the district court’s consideration of the inadmissible information relied upon by the experts as substantive evidence. Because we have already found that mistake to be harmless, we reach the same conclusion as to the reports.
More broadly, however, the party calling an expert witness typically should not be permitted to admit the expert’s report as an exhibit provided to the factfinder for consideration during deliberation of a case absent a stipulation. The reports are unlike phys ical objects or documentary evidence admitted at trial — exhibits that customarily go into the jury room. See State v. Grauerholz, 232 Kan. 221, 224, 654 P.2d 395 (1982) (noting the “normal practice” of providing exhibits to jurors at the start of deliberations). Those objects and documents figure in the historical factual circumstances giving rise to the legal dispute. That’s what makes them relevant in the first place. But expert reports are created during the litigation, long after the operative events.
Expert reports essentially reflect a tailored narrative of facts that may be disputed in the trial evidence and a carefully constructed version of the witness’ opinions presented at trial. See United States v. Lozada-Rivera, 177 F.3d 98, 105 (1st Cir. 1999) (report of DEA case agent amounted to a “ ‘condensation of the government’s whole case against the defendant’ ” and was erroneously admitted as an exhibit and given to jury during deliberations) (quoting United States v. Quinto, 582 F.2d 224, 236 [2d Cir. 1978]). Those expert reports serve reasonably well as a discovery tool. But the benefits do not carry over to admitting the reports at trial. First, of course, a report would either duplicate the expert’s trial testimony, making it cumulative, or it would add information and opinions, making it improper. Moreover, in a jury case, the prejudicial impact of allowing expert reports into the jury room as trial exhibits commonly would far outweigh any probative value. See Engebretsen v. Fairchild Aircraft Corp., 21 F.3d 721, 730 n.2 (6th Cir. 1994); Law v. National Collegiate Athletic Ass’n, 185 F.R.D. 324, 342 (D. Kan. 1999) (“[I]n most cases, expert reports do not go to the jury in any format” and doing otherwise “may call undue attention to the expert’s trial testimony.”); McAtee v. Com., 413 S.W.3d 608, 623 (Ky. 2013) (recognizing that expert witness reports should not be sent to the jury room during deliberations); Davolt v. Highland, 119 S.W.3d 118, 135-37 (Mo. App. 2003) (error to provide expert opinion letters to juiy, but no manifest injustice amounting to plain error and not otherwise reviewable in absence of contemporaneous objection). In effect, the expert witness, through his or her report, would accompany the jurors during their deliberations. No other witnesses get to have written summaries of their trial testimony considered in that way during deliberations. So jurors could be prompted to give undue attention and weight to expert witnesses.
Even so, we find no prejudicial error here because the case was tried to the district court rather than to a jury. District court judges typically would not be unduly influenced by reviewing expert reports during their consideration of the evidence in arriving at a decision. See Redondo v. Gomez, No. 109,642, 2014 WL 802268, at *2 (Kan. App. 2014) (unpublished opinion) (“Judges are not susceptible to the same sort of undue influence that sharp practices may induce in jurors.”); United States v. Stinefast, 724 F.3d 925, 931 (7th Cir. 2013) (“Judges often hear improper argument and other forms of inadmissible evidence that they are presumed to disregard when deciding matters of importance.”); State v. Jackson, 248 S.W.3d 117, 125 (Mo. App. 2008); 4 Weinstein’s Federal Evidence § 703.05[2], We find nothing in the record to suggest the district court was impermissibly swayed because it physically had copies of the expert reports while contemplating how to rule. As we have found, there was ample evidence, much of it from Quary himself, to support the district court’s judgment. [4]
[4] We also do not mean to suggest that in a given case, the parties would be prohibited from stipulating to the admissibility of expert witness reports and their submission to the finder of fact— either a district court or a jury — during deliberations. By mutual agreement and with the consent of the district court, the parties may substantially modify the rules of evidence to admit information that otherwise would be inadmissible or to waive formal foundation for exhibits. The parties might decide to rely on expert witness reports as the most efficient and economical way to get that evidence before the finder of fact, particularly in a bench trial. See K.S.A. 2013 Supp. 60-102 (Code of Civil Procedure including rules of evidence to be “administered to secure the just, speedy and inexpensive determination of every action”). Here, however, Quary explicitly objected to the admission of the expert reports. Nor do we suggest that the party opposing a testifying expert witness should be foreclosed from admitting the expert’s report for the factfinder’s review if that party perceives some benefit and the report is more probative than prejudicial. In that context, the re port may stand much as an admission by an agent of a party opponent. See Durham v. County of Maui, 804 F. Supp. 2d 1068, 1071 (D. Hawaii 2011) (expert witnesses testifying at trial considered authorized to speak on behalf of parties calling them); Samaritan Health Center v. Simplicity Health Care, 459 F. Supp. 2d 786, 799 (E.D. Wis. 2006).
V. Conclusion
Under K.S.A. 2013 Supp. 59-29a06(c), expert witnesses may rely on inadmissible information in formulating their opinions. But district courts and juries cannot treat that information as substantive evidence. Likewise, reports from expert witnesses typically should not be admitted as evidence for the factfinder s consideration during deliberations. Given the overwhelming admissible evidence supporting the district court’s judgment finding Quary to be a sexually violent predator and involuntarily committing him for treatment, any errors of that sort related to the State’s expert testimony were harmless.
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Pierron, J.:
Abigail Reed appeals tire sentence entered by the district court following the State’s motion to correct an illegal sentence. Reed argues that once the court ordered the sentence following the revocation of her probation, the court had no jurisdiction to modify the sentence. Additionally, Reed argues her lifetime postrelease sentence was cruel and unusual punishment based on her conviction for indecent solicitation of a child. We affirm.
On May 16, 2012, the State charged Reed with criminal sodomy, aggravated indecent liberties with a child, and indecent solicitation of a child. Reed pled guilty to indecent solicitation of a child. She fell within the presumptive probation portion of the sentencing grid. The court sentenced Reed to an incarceration sentence of 18 months and then ordered probation (intensive supervision) for 24 months. The court also ordered a postrelease supervision term of 24 months.
On January 14, 2013, the State moved to revoke Reed’s probation for violating curfew, failing to attend meetings, and failing to maintain a residence. The court ordered Reed to serve her 18-month prison sentence and a 24-month period of postrelease supervision. On February 14,2013, the State filed a motion to correct an illegal sentence, arguing Reed was statutorily required to serve a term of lifetime postrelease supervision. After a full hearing, the district court granted the State’s motion and ordered Reed to serve a lifetime of postrelease supervision. Reed appeals.
We first address the issue of whether the district court had jurisdiction to modify Reed’s sentence.
Reed argues the sentence imposed on her after the revocation of her probation was a legal sentence, effective upon pronouncement from the bench, and tire court did not have jurisdiction to modify that sentence. She contends that although Kansas law requires anyone convicted of a sexually violent crime to be subjected to lifetime postrelease supervision, Kansas law also authorizes the district court to impose a lesser sentence when it revokes a defendant’s probation. She argues this is what the court did here and, therefore, the court had no jurisdiction to later modify the term of postrelease supervision at tire State’s request.
Whether a sentence is illegal is a question of law over which we have unlimited review. State v. Trotter, 296 Kan. 898, 902, 295 P.3d 1039 (2013). K.S.A. 22-3504(1) allows the court to correct an illegal sentence at any time. An illegal sentence includes one that does not conform to the applicable statutory provision in either the character or the term of authorized punishment. State v. Lawson, 296 Kan. 1084, 1099, 297 P.3d 1164 (2013). Once the district court pronounces a legal sentence from the bench, it does not have jurisdiction to modify that sentence absent statutory language allowing a modification. State v. McKnight, 292 Kan. 776, 779, 257 P.3d 339 (2011); see State v. Guder, 293 Kan. 763, 766, 267 P.3d 751 (2012).
Reed asks us to interpret the interaction of two different statutes in the Kansas Code of Criminal Procedure: (1) K.S.A. 2011 Supp. 22-3716(b), which provides, in pertinent part, that once a probation violation has been established, the district court “may require the defendant to serve tire sentence imposed, or any lesser sentence”; and (2) K.S.A. 2011 Supp. 22-3717(d)(1)(G), which states: “[Pjersons convicted of a sexually violent crime committed on or after July 1, 2006, and who are released from prison, shall be released to a mandatory period of postrelease supervision for the duration of the person’s natural life.” Indecent solicitation of a child — Reed’s crime of conviction — is categorized as a sexually violent crime under K.S.A. 2011 Supp. 22-3717(d)(2)(F).
Reed acknowledges she should have been sentenced to lifetime postrelease supervision at her original sentencing. Indeed, when a defendant has been convicted of one of the statutorily defined sexually violent offenses, the district court does not have discretion to ignore the lifetime postrelease supervision requirement of K.S.A. 2011 Supp. 22-3717(d)(1)(G). State v. Ballard, 289 Kan. 1000, 1012, 218 P.3d 432 (2009); State v. Baber, 44 Kan. App. 2d 748, 753-54, 240 P.3d 980 (2010), rev. denied 296 Kan. 1131 (2013). A district court’s failure to comply with the statute results in an illegal sentence. 44 Kan. App. 2d at 754. The sentencing court was required to sentence Reed to lifetime postrelease supervision in this case. Because it failed to do so at the original sentencing hearing, Reed’s original sentence was illegal.
Nevertheless, Reed contends that upon revocation of her probation the district court applied K.S.A. 2011 Supp. 22-3716(b) to impose a lesser sentence, which in this case was a shorter post-release supervision term. Thus, she contends, the original illegal sentence became legal upon the revocation of her probation because the district court had the discretion to sentence her to a lesser period of postrelease supervision at that point.
Unfortunately for Reed, this is not what happened. At the probation revocation hearing, the district court revoked Reed’s intensive supervision and ordered her “to serve the balance of the sentence that was imposed upon you at tire time of sentencing.” However, because Reed was on presumptive probation and she had committed technical violations of her probation, the court and the parties discussed whether Reed’s postrelease supervision period remained intact upon revocation. There was no discussion on the length of Reed’s postrelease supervision, just whether it remained intact.
Based on the record, the district court ordered Reed to serve her original illegal sentence, not a lesser legal one. Thus, we do not need to examine the interplay of the “any lesser sentence” provision of K.S.A. 2011 Supp. 22-3716(b) and the mandatory lifetime postrelease supervision for sexually violent offenses provision of K.S.A. 2011 Supp. 22-3717(d)(1)(G).
Reed argues her case is similar to McKnight. In McKnight, the defendant pled no contest to a drug charge which fell into a border box on the sentencing grid. McKnight received a legal sentence that was suspended in favor of probation. His probation was later revoked, and the district court modified his underlying sentence after the revocation to omit any postrelease supervision based on a misunderstanding of the rules for border box sentences. The State later moved the court to correct the illegal sentence. Our Supreme Court held that the modified sentence, though modified based on a mistake of law, was a legal sentence and the court did not have jurisdiction to modify it later. 292 Kan. at 783.
In McKnight, the district court imposed a lesser sentence upon revocation of the defendant’s probation. But in our present case, the district court simply ordered Reed to serve her original sentence. McKnight does not apply.
On the contrary, Ballard is instructive. There, Ballard pled no contest to a charge of aggravated indecent liberties with a child and was sentenced to 55 months’ imprisonment and 36 months’ postrelease supervision. At a hearing 2 weeks later, the district court modified Ballard’s sentence by imposing mandatory lifetime postrelease supervision. Ballard argued on appeal that the original sentence was legal and therefore not modifiable after pronouncement because K.S.A. 2006 Supp. 22-3717(d)(1)(A) required 36 months’ postrelease supervision for nondrug severity level 1 through 4 crimes, which would include his crime of conviction. Ballard acknowledged he committed a sexually violent crime and acknowledged that K.S.A. 2006 Supp. 22-3717(d)(1)(G) mandated lifetime postrelease supervision for sexually violent crimes, but he argued either K.S.A. 2006 Supp. 22-3717(d)(1)(A) or (G) could apply to his case and therefore a postrelease term under either statute would be legal.
The Kansas Supreme Court rejected Ballard’s argument, in part because he was subject to mandatoiy lifetime postrelease supervision pursuant to K.S.A. 2006 Supp. 22-3717(d)(1)(G). Because Ballard’s original sentence was based on the wrong statute and was therefore illegal, the district court had jurisdiction to modify it after pronouncement. 289 Kan. at 1012.
Ballard controls. Reed’s original sentence was illegal. The district court then reimposed an illegal sentence rather than imposing a lesser one at the probation revocation hearing. A revocation of probation may lead to the imposition of a lesser sentence. However, the new sentence cannot be illegal. Thus, the district court had jurisdiction later to correct Reed’s illegal sentence under K.S.A. 22-3504(1), and the district court did not err in doing so.
We also need to address the question of whether Reed’s sentence violated the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights.
Reed asserts that lifetime postrelease supervision for a conviction of indecent solicitation of a child is categorically disproportionate in violation of the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. She bases her argument on the assertions that indecent solicitation (1) does not involve the victim and the offender engaging in any sexual act, and (2) the victim was 14 years old but less than 16 years old. In her categorical disproportionate analysis, Reed argues there is a national consensus against lifetime postrelease supervision and the courts can exercise independent judgment to find that none of the penological goals of retribution, deterrence, incapacitation, and rehabilitation are met with Reed’s harsh sentence.
Regarding § 9 of the Kansas Constitution Bill of Rights, our Supreme Court has adopted the three-part test from State v. Freeman, 223 Kan. 362, Syl. ¶ 2, 574 P.2d 950 (1978), to determine whether a sentence of lifetime postrelease supervision is cruel or unusual punishment. State v. Mossman, 294 Kan. 901, Syl. ¶ 4, 281 P.3d 153 (2012). In doing so, we consider: (1) the nature of the offense and the character of the offender in regard to the degree of danger presented to society; (2) the comparison of the punishment at issue with other punishments in Kansas for more serious crimes; and (3) the comparison of the penalty with punishments in other jurisdictions for the same offense. 294 Kan. at 908; Freeman, 223 at 367.
Reed’s § 9 argument consisted of only quoting the state constitutional language of § 9 of the Kansas Constitution Bill of Rights prohibiting cruel or unusual punishment, followed by the court’s interpretation in State v. McDaniel & Owens, 228 Kan. 172, 183, 612 P.2d 1231 (1980) (quoting Freeman, 223 Kan. at 367), that such punishment “ ‘shocks the conscience and offends fundamental notions of human dignity.’ ” Reed also surveyed nationwide postrelease supervision laws for sexual offenses — in line with the third Freeman factor — but only for the purpose of arguing that there is a national consensus against lifetime postrelease supervision for this class of offense. Reed also briefly argued her post-release sentence was harsher than what someone would receive for second-degree murder. Reed made no attempt to demonstrate the Freeman test was met here.
The Kansas Supreme Court recently declined to review a defendant’s § 9 claim when the defendant failed to argue the Freeman factors and only mentioned Freeman in the context of the standard of review. See State v. Williams, 298 Kan. 1075, 1083-84, 319 P.3d 528 (2014). When a litigant fails to adequately brief an issue, it is deemed abandoned. State v. Rojas-Marceleno, 295 Kan. 525, 543, 285 P.3d 361 (2012).
The Williams court further noted that because the Freeman test involves both legal and factual inquiries, appellate courts cannot consider § 9 claims in the absence of district court factfinding and analysis. 298 Kan. at 1084. Here, at the hearing on the State’s motion to correct an illegal sentence, Reed’s counsel argued lifetime postrelease supervision would be cruel and unusual punishment considering Reed’s age and the age and consent of the victim. Counsel argued lifetime postrelease should be for the “hardcore sexual predators in our society.” The district judge stated he was going to follow the statutes and caselaw and was required to impose lifetime postrelease supervision. There were no findings of fact made by the district court to aid us in our review of the Freeman factors.
Supreme Court Rule 165 (2013 Kan. Ct. R. Annot. 265) requires the district court to make adequate findings of fact and conclusions of law on matters submitted to it without a jury. A defendant who wishes to lodge a constitutional challenge to a sentencing statute must make sure the district judge makes adequate findings and conclusions, even if it means filing a motion invoking the judge’s duty under Rule 165. State v. Seward, 289 Kan. 715, 720-21, 217 P.3d 443 (2009). Reed’s failure to pursue her § 9 claim with the district court forecloses our appellate review of the issue.
Reed’s sentence was not categorically disproportionate under tire Eighth Amendment either. In Graham v. Florida, 560 U.S. 48, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010), the United States Supreme Court set the standard for Eighth Amendment proportionality challenges. It divided the challenges into two classifications: (1) those challenging the length of a term-of-years sentence given all the circumstances of a particular claim, and (2) those in which the Court implements tire proportionality standards according to certain categorical restrictions. 560 U.S. at 59. Claims in the first classification are inherently fact-specific and cannot be raised on appeal absent findings of fact and conclusions of law from the district court. State v. Gomez, 290 Kan. 858, 864, 235 P.3d 1203 (2010). On the other hand, a categorical constitutional analysis under the Eighth Amendment involves questions of law and may be raised on appeal in the absence of any factual findings from tire district court. State v. Ruggles, 297 Kan. 675, 679, 304 P.3d 338 (2013) (quoting Mossman, 294 Kan. at 925; citing Gomez, 290 Kan. at 866). This court has unlimited review of questions of law. Mossman, 294 Kan. at 925.
Because the district court did not make findings of facts or conclusions of law upon which this court could rely for appellate purposes, Reed’s Eighth Amendment challenge to the lifetime post-release supervision portion of her sentence can only be addressed under the second classification — as a purely legal, categorical proportionality challenge. The United States Supreme Court has identified three subcategories of categorical constitutional challenges: (1) those considering the nature of the offense, (2) those considering the characteristics of the offender, and (3) those that combine the first two subcategories by considering a particular iype of sentence as it applies to an entire class of offenders who have committed a range of crimes. Graham, 560 U.S. at 60-61.
Reed’s categorical constitutional argument asserts that the Eighth Amendment categorically prohibits the imposition of lifetime postrelease for a sex offense in which the offender and the victim do not engage in sexual acts and the victim is 14 or more years of age but less than 16 years of age. This argument appears to fall into subcategory 3, which looks at both the nature of tire offense and the characteristics of a class of offenders.
The United States Supreme Court has tended to categorize classes of offenders by broad characteristics, such as defendants under the age of 18 or those'with low range intellectual functioning. See Mossman, 294 Kan. at 928-29. The record here indicates Reed was 18 years old at the time she committed these offenses. She there fore lacks standing to malee the argument that lifetime postrelease supervision is unconstitutional as applied to offenders under the age of 18. See State v. Coman, 294 Kan. 84, 90-91, 273 P.3d 701 (2012) (holding that an offender convicted under the bestiality portion of the criminal sodomy statute does not have standing to challenge the constitutionality of die portion of the statute that criminalizes homosexual conduct); State v. Thompson, 221 Kan. 165, 172, 558 P.2d 1079 (1976) (holding that unconstitutional government action can only be challenged by a person directly affected; it cannot be challenged by one invoicing the rights of third parties).
Reed’s arguments regarding the nature of the offense hinge on die fact tiiat the offender and the victim did not engage in sexual acts and the victim is 14 or more years of age but less than 16 years of age. But even if those facts had been established, we would not narrow our categorical analysis to that degree, as shown by the Kansas Supreme Court’s decision in Mossman.
In Mossman, the defendant categorically challenged the constitutionality of lifetime postrelease supervision for aggravated indecent liberties with a child. Mossman asked the court to limit the range of crimes considered to those involving sex with a child who is 14 or 15 when the crime is committed without any element of force, coercion, prostitution, or pornography. While die United States Supreme Court has narrowed the categories somewhat in reference to the nature of a crime, such as the rape of an adult where die age of the victim was not an element, the Kansas Supreme Court noted that it had never refined its categories to the degree requested by the defendant. Thus, it conducted its analysis using Mossman’s offense — aggravated indecent liberties with a child — as the nature of offense. It did so because Mossman’s requested categorization was “so case-specific” it tended to obliterate the distinction between a case-specific analysis and a categorical one. 294 Kan. at 928.
State v. Cameron, 294 Kan. 884, 281 P.3d 143 (2012), involved die use of lifetime postrelease supervision for a man convicted of aggravated indecent solicitation of a child. Cameron solicited sex acts with a 12-year-old female victim. He sought to describe this class of offenders as those who committed “ ‘a sex offense, not involving pornography, where die offender and the victim do not engage in physical conduct, much less a physical sexual act.’ ” 294 Kan. at 896. The court noted that Cameron had touched his victim but, regardless, it found there was no “basis for considering a classification of an offense that is any narrower than the crime of conviction — aggravated indecent solicitation of a child.” 294 Kan. at 897.
Reed’s conviction was for indecent solicitation of a child. K.S.A. 2011 Supp. 21-5508(a)(1) defines this offense as “enticing, commanding, inviting, persuading or attempting to persuade a child 14 or more years of age but less than 16 years of age to . . . [c]ommit or to submit to an unlawful sexual act.”
Much like Mossman and Cameron, Reed asks us to narrow the nature of the offense so as-to narrow the crime of her conviction to the point that her argument is no longer a categorical argument, but one based on specific facts which have never been determined by the district court. In considering Reed’s challenge to lifetime postrelease supervision, the district court was never asked to determine the consensual nature of the act or the nature of the solicitation. Recause Reed entered a plea of no contest to these offenses, she did not admit to the facts as proffered by the State at her plea hearing. Accordingly, we will consider the nature of the offense to be Reed’s offense of conviction — indecent solicitation of a child- — and refrain from restricting the category further. See Williams, 298 Kan. at 1087 (finding that the categoiy of offense described as “ ‘crimes involving possession of pornographic images [of a child] under age 18’ ” did not narrow the offense of sexual exploitation of a child as defined by the legislature); Cameron, 294 Kan. at 897.
Pursuant to Graham, when considering whether lifetime post-release supervision is categorically unconstitutional as applied to a term-of-years sentence for those convicted of indecent solicitation of a child,
“[t]he Court first considers ‘objective indicia of society’s standards, as expressed in legislative enactments and state practice’ to determine whether there is a national consensus against the sentencing practice at issue. [Citation omitted.] Next, guided by ‘the standards elaborated by controlling precedents and by the Court’s own understanding and interpretation of the Eighth Amendment’s text, history, meaning, and purpose,’ [citation omitted], the Court must determine in the exercise of its own independent judgment whether the punishment in question violates the Constitution. [Citation omitted.]” 560 U.S. at 61.
Community consensus is entitled to great weight but is not itself determinative of the cruel and unusual issue raised here. Williams, 298 Kan. at 1087. As noted in Mossman, the task of interpreting the Eighth Amendment categorical analysis required this court to consider the culpability and characteristics of the offender in light of the crime and to examine the severity of the punishment at issue, including whether the sentence serves legitimate penological interests. 294 Kan. at 929. Retribution, deterrence, incapacitation, and rehabilitation are legitimate penological interests. Graham, 560 U.S. at 71.
Reed argues there is a national consensus against lifetime post-release supervision for sex offenses, noting that only five states, including Kansas, impose lifetime postrelease supervision for this “class of offenses.” Kansas courts have consistently relied on United States v. Williams, 636 F.3d 1229 (9th Cir.), cert. denied 132 S. Ct. 188 (2011), when considering categorical challenges to sentences for sex offenses. See Williams, 298 Kan. at 1088-90; Mossman, 294 Kan. at 929-30; Cameron, 294 Kan. at 897-98. In Williams, the defendant pled guilty to receipt of child pornography. Analyzing the defendant’s constitutional challenge to his sentence pursuant to Graham, the court found that “objective indicia” suggests society is comfortable with lifetime supervised release for sex offenders, noting that such sentences are common. 636 F.3d at 1233-34.
In Mossman, the Kansas Supreme Court surveyed other state laws imposing lifetime postrelease supervision on those convicted of offenses similar to the Kansas law of aggravated indecent liberties with a child. 294 Kan. at 917-20. The Mossman court stated:
“[I]t seems fair to say that less than half of states provide for lifetime postrelease supervision of some or all sex offenders and, because several states have a mechanism for termination of the postrelease supervision under certain conditions, only a handful of states impose punishment as absolute as Kansas’ requirement. Nevertheless, Kansas is not alone in imposing mandatory lifetime postrelease super vision for crimes such as Mossnran’s, and we are not aware of any court that has found lifetime postrelease supervision to be cruel and unusual punishment.” 294 Kan. at 920.
Reed compares her crime to more serious off-grid offenses and points out that individuals convicted of those offenses do have the option to be released or discharged from parole. In Cameron and Mossman, our Supreme Court compared the punishment for the crimes at issue in those cases with the punishments for other crimes in Kansas and then compared the penalties imposed by other states for similar offenses. Cameron, 294 Kan. at 892-94; Mossman, 294 Kan. at 912-21. The court in Cameron specifically rejected the arguments comparing lifetime postrelease supervision to sentences for crimes such as second-degree murder, noting that lifetime post-release supervision, although resulting in a lengthy cumulative sentence, “is not as harsh a punishment as imprisonment and is aimed at safely integrating a sex offender into society and protecting the public.” Cameron, 294 Kan. at 896; see Mossman, 294 Kan. at 911-12.
The Kansas Supreme Court has not yet changed course on this portion of its analysis. See Williams, 298 Kan. at 1088-90; Mossman, 294 Kan. at 929-30; Cameron, 294 Kan. at 897-98. Because Kansas considers indecent solicitation of a child to be a sexually violent offense, Reed’s crime of conviction falls squarely into this analysis. We are duty bound to follow Kansas Supreme Court precedent regarding die imposition of lifetime postrelease supervision following convictions of sexually violent crimes. State v. Capps, No. 107, 361 2013 WL 1444501, *2 (Kan. App.) (unpublished opinion), rev. denied 291 Kan. 1249 (2013). That duty applies here.
The Kansas Supreme Court has also looked to the Ninth Circuit Court of Appeals for guidance on whether lifetime postrelease supervision serves the legitimate penological goals of retribution, deterrence, incapacitation, and rehabilitation for the second part of this analysis. The Williams court found:
“Rehabilitation and incapacitation are central purposes of the criminal justice system, and they are particularly critical here given the propensity of sex offenders to strike again. Supervised release can further tire end of rehabilitating sex offenders. For instance, in this case, the express conditions of supervised release will require [the defendant] to receive sex offender treatment and to avoid situations where [the defendant] may be tempted to offend again. Relatedly, supervised release helps incapacitate sex offenders by keeping them under the watchful eye of probation officers who may be able to detect problems before they result in irreparable harm to innocent children.” 636 F.3d at 1234.
Our Supreme Court has found this conclusion applies equally to those sentenced in Kansas for sex offenses. See Williams, 298 Kan. at 1089; Mossman, 294 Kan. at 930; Cameron, 294 Kan. at 898. The Ninth Circuit’s analysis in Williams applies equally to Reed’s case as well. Lifetime postrelease supervision for Reed’s offense serves the valid penological objectives of deterring such conduct and in incapacitating and rehabilitating the offender.
Lifetime postrelease supervision for the offense of indecent solicitation of a child is not categorically disproportionate and, therefore, is not cruel and unusual punishment under the Eighth Amendment.
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Malone, C.J.:
John Arthur Dority appeals his convictions of domestic battery and endangering a child. Dority argues that there was insufficient evidence to support his convictions. He also argues that he did not receive a fair trial due to the trial judge’s preconceived stereotype of domestic violence victims. For the reasons set forth herein, we affirm the district court’s judgment.
On the afternoon of May 2, 2012, Kimberly Scourten called for an ambulance and she and her 4-month-old daughter, T.D., went to the hospital so that medical personnel could check T.D. for possible head trauma. While at the hospital, Scourten told police that she had been involved in an argument with Dority, her boyfriend and T.D.’s father. Scourten seemed upset at the hospital and looked as though she had been crying.
Officer Erie Seibel of the Topeka Police Department interviewed Scourten at the hospital. Scourten told Seibel that she and Dority had been yelling at each other at their home and that she went into the living room, picked up T.D., and sat down on the couch. Scourten reported that when she began to stand up, Dority shoved her back down onto the couch. When she started to stand up again, Dority shoved her from behind, knocked T.D. out of her hands and onto the floor, and hit Scourten in the back of the head.
Officer Alexander Wall also spoke with Scourten, who told him that Dority had pushed her down as she tried to get off the couch and that she and T.D. both fell to the floor. Scourten told Wall that the bruise on T.D.’s head came from T.D. landing on the ground after Dority pushed Scourten. Wall spoke with Dority that night as well. Dority told Wall that he had argued with Scourten, that she had pushed and shoved him, and that he had used his body to shield T.D., who was on the couch. At first, Dority said that he was unaware T.D. was hurt, but he then told Wall that T.D.’s injury probably occurred from Dority making contact with T.D. while trying to protect her from Scourten.
Dority was arrested for domestic battery, and Scourten helped him post bond. The next day, Scourten went to the district attorney’s office and filled out a “Request to Modify Contact” form in which she stated that Dority “did not mean to do this (shove me) with our daughter in my hands.” On July 16, 2012, the State charged Dority with one count of domestic battery and one count of endangering a child. The domestic battery charge was alternatively based on intentional or reckless conduct.
At the bench trial on March 5, 2013, Scourten’s testimony differed from what she had told Seibel and Wall at the hospital. Scour-ten testified that she and Dority had an argument on the day in question, during which she put T.D. on the couch. Dority picked up T.D. and, when Scourten handed him a bottle, began to feed T.D. Scourten testified that she hit Dority while he was feeding T.D. After Scourten hit Dority, he left their home, at which time T.D. began rubbing her head and crying. Scourten stated that T.D. had fallen off the couch 2 days earlier, so when she saw T.D. rubbing her head, she became concerned and called an in-home nurse who worked with the family. The nurse told Scourten to take T.D. to the emergency room in case T.D.’s actions were related to her previous fall off the couch.
Regarding her statements to the police at the hospital, Scourten largely recanted them. She testified that she did not tell police that Dority shoved her and that she did not recall telling police that T.D. fell out of her arms and onto the floor. Moreover, Scourten stated that she did not recall Dority faying to shove her, Dority knocking T.D. out of her hands, or T.D. hitting her head. Concerning the form on which she wrote that Dority had shoved her, Scourten stated that she had filled it out incorrectly because she was in a hurry to get to the bank before it closed to obtain money for Dority’s bond. Finally, Scourten testified that she and Dority were still together.
Seibel testified for the State, as did Wall; both officers recounted what Scourten had told them on the day in question. Additionally, Seibel testified that Scourten never told him that she had hit Dority or that she had caused T.D.’s bruise. He testified that Scourten’s version of events as she related it on the day in question was consistent with T.D.’s injuries and he believed it was accurate.
Dority testified on his own behalf, stating that although he could not remember what the argument was about, Scourten had hit him on the back of the head while he was holding T.D:, at which point he placed T.D. on the couch and walked out the door to give Scourten time to cool down. Dority explicitly denied having physical contact with Scourten; he testified that he did not hit her, did not bump her, did not jostle her, did not brush past her, and did not threaten her. He also denied harming T.D. in any way.
After hearing the evidence, the district court found Dority guilty as charged. In rendering the verdict, the trial judge commented that based on his experience in this type of case, it is common for victims of domestic violence to recant their initial police reports when testifying at trial. The trial judge found that Scourteris version of events that she gave to the police was far more persuasive than her testimony at trial. The district court sentenced Dority to a total of 18 months in jail but placed him on probation. Dority timely appealed the district court’s judgment.
On appeal, Dority argues that there was insufficient evidence to support his convictions. Regarding his domestic battery conviction, Dority contends that domestic battery is an alternative means crime and that the State failed to introduce sufficient evidence to convict him of each alternative means of committing the crime. Dority also argues that the conflicting and inconsistent nature of the testimony was insufficient to convict him of both charges beyond a reasonable doubt.
“ “When examining the sufficiency of the evidence in a criminal case, the standard of review is whether, after reviewing all the evidence in the light most favorable to the prosecution, tire appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.’ [Citation omitted.] An appellate court does not reweigh the evidence, assess the credibility of the witnesses, or resolve conflicting evidence. [Citation omitted.]” State v. Lowrance, 298 Kan. 274, 296, 312 P.3d 328 (2013).
Initially, Dority points out that the domestic battery charge was alternatively based on intentional or reckless conduct and that the State failed to introduce sufficient evidence to convict him of each alternative means of committing the crime. In response, the State asserts that alternative means jurisprudence is inapplicable in instances, such as here, where there was a bench trial instead of a jury trial.
Our Supreme Court has stated that alternative means jurisprudence stems from a concern for jury .unanimity:
“In State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994) (quoting State v. Kitchen, 110 Wash. 2d 403, 410, 756 P.2d 105 [1988]), this court established that “‘[W]here a single offense may be committed in more tiran one way, there must be jury unanimity as to guilt for the single crime charged.’” . . . Recently, the majority in State v. Wright, 290 Kan. 194, 201, 206, 224 P.3d 1159 (2010), reiterated that jury unanimity is statutorily required in Kansas and explained that tire alternative means rule and super-sufficiency requirement emanating from Timleij ⅛ die only choice to ensure a criminal defendant’s statutory entitlement to jury unanimity.’ ” State v. Foster, 298 Kan. 348, 352-53, 312 P.3d 364 (2013).
Specifically, this court has noted that “alternative means jurisprudence developed as a method of ensuring a criminal defendant’s statutoiy right to a unanimous jury verdict. [Citation omitted.] The same juiy unanimity concerns do not apply when evidence is presented to a single factfinder, as in a bench trial. [Citation omitted.]” In re C.T., No. 107,841, 2012 WL 5205752, at *4 (Kan. App. 2012) (unpublished opinion); see also State v. Kennedy, No. 106,728, 2012 WL 4678927, at *2 (Kan. App. 2012) (unpublished opinion) (alternative means issue inapplicable when defendant was convicted at bench trial and there was no issue of jury unanimity); City of Pittsburg v. Witty, No. 101,251, 2009 WL 2436695, at *1 (Kan. App. 2009) (unpublished opinion) (same).
Here, as in the cases cited above, diere was only one factfinder: the district court judge. Because this was a bench trial, jury unanimity was not a concern in this case. Accordingly, Dority’s alternative means argument is inapplicable.
Dority also argues that the conflicting and inconsistent nature of the testimony given by Scourten, Wall, and Seibel rendered it impossible for a rational factfinder to have found him guilty of the crimes. Specifically, Dority points out that Seibel and Wall were not present for die argument between Scourten and Dority; rather, the officers talked widi Scourten and Dority after the fact. Additionally, Scourten and Dority both testified at trial that Scourten shoved Dority, not the otiier way around.
As the State responds, Dority is asking this court to reweigh the evidence and the witnesses’ credibility. This court does not undertake such tasks. See Lowrance, 298 Kan. at 296. Dority does not contend that the State failed to meet the specific elements of either crime. Viewing die evidence in the fight most favorable to the State, there was sufficient evidence to support Dority’s convictions.
Next, Dority argues that he did not receive a fair trial due to the trial judge’s stated beliefs about domestic violence victims. In rendering his verdicts on the two charges, the trial judge stated, in part:
“So it’s up to this Court to decide, as best it can, which version of the incident is the most persuasive and as I’ve said before, we tell juries that when drey are acting as finders of fact, as I am in this case, they can use common knowledge and experience about which a witness has testified to. And using my common knowledge and experience I can say it is absolutely not uncommon for the victims in these kinds of cases to come in at the time of trial and totally change their story around and say either they didn’t tell the police what the police say they told them or that they toere not being truthful for some other motive or whatever and that, in fact, none of this violence took place.
“And so I don’t find that particularly persuasive at all, particularly when the physical evidence, State’s Exhibits 2, 3, the photos, and then 4, the statement that was made the following day at the district attorney’s office, all are consistent with die testimony of the police officers as to what the victim from the crime, alleged victim actually told them and I can find, with no problem at all, that she told the police what they said she told them. . . .
“And that being the case, I dunk her version that she gave to the police, by far and away, is far more persuasive of what actually took place. I have no problem whatsoever finding beyond a reasonable doubt the defendant guilty on both counts ... of tire charging document and so that is my verdict on each of these counts.” (Emphasis added.)
Dority points to the one sentence in which the trial judge commented that based on his experience in this type of case, it is common for victims of domestic violence to recant their initial police reports when testifying at trial. Dority claims the district court improperly relied on personal knowledge about domestic violence victims instead of relying on the evidence provided at trial. A district court abuses its discretion when it relies upon facts that are not supported by substantial evidence in the record. State v. Bogguess, 293 Kan. 743, 753, 268 P.3d 481 (2012).
Dority cites State v. Prewitt, No. 106,725, 2013 WL 646480 (Kan. App. 2013) (unpublished opinion) for support. In that case, this court found that a district court erred by allowing improper testimony about the “cycle of violence” — a recurrent pattern of violence and reconciliation in which a victim often recants complaints after reconciliation with his or her abuser — to explain the change in story by an alleged victim of domestic violence. However, Prewitt is distinguishable because it dealt with the admission of specific evidence and found that a police officer s testimony about the cycle of violence was inapplicable and irrelevant where there was no testimony of any prior abuse. 2013 WL 646480, at *4. Here, there was no testimony about a cycle of violence. Instead, the trial judge explicitly stated that he was relying upon his own common knowledge and experience to make a credibility determination and assess the weight of the evidence.
Although not cited by either party, we find two unpublished opinions by this court to be instructive. In Lambert v. Cromer, No. 98,906, 2008 WL 2370076, at °2 (Kan. App. 2008) (unpublished opinion), this court reversed the judgment of the district court after finding that the trial judge “relied directly on his own special knowledge to decide the case.” The lawsuit stemmed from an incident in which the plaintiff hit a cow with his truck while driving on a highway. The plaintiff sued the cow’s owner, and, after a bench trial, the district court ruled in the plaintiff s favor. The trial judge wrote in his opinion that tire judge had grown up on a farm that included cattle, held a Bachelor of Science degree in agriculture, managed a family farming operation that included making decisions about maintaining and replacing fences, and bought and sold cattle on his own account.
In reversing the judgment, this court noted that there was no direct evidence that the defendant was negligent in maintaining his pasture fence. 2008 WL 2370076, at *1. This court found that the trial judge essentially had “provided the equivalent of expert testimony about the behavior of cattle and what a ‘good caretaker would do to keep cattle within a fenced area.” 2008 WL 2370076, at *1. This court found that the trial judge had gone too far in relying upon his special knowledge of a particular subject to decide the case but noted that judges may use common knowledge and experience to resolve factual disputes. 2008 WL 2370076, at “1.
In In re Marriage of Henry, No. 105,861, 2012 WL 1450489, at *4 (Kan. App. 2012) (unpublished opinion), this court reviewed a district court’s child-custody determination. When delivering his decision, the trial judge stated:
“I will tell you that having been on the bench 14 years, I have seen many situations, many instances in which people who are either out-of-state or they only get summer visitation, they will end up filing a motion at some time right before the end of that summer to try to change custody, and that’s always land of a red flag for me . . . 2012 WL 1450489, at *2.
On appeal, the petitioner cited Lambert and argued that the trial judge improperly relied upon his personal experience. The Henry court distinguished the cases, however, by pointing out (1) the Lambert judge “relied on specialized training and expertise gained outside the courtroom” while the Henry judge “merely noted a situation he had encountered many times during 14 years as a judge”; (2) although “an expert witness would have been required to testily about the reasonable practices of maintaining pastureland fences, no expert would be needed to say that it can be a "red flag’ when a parent tries to change custody right before that parent’s summer parenting time is coming to an end”; and (3) the judge in Henry did not indicate that he based his decision on the knowledge at issue — he properly considered the statutory factors implicated in child-custody determinations. 2012 WL 1450489, at *4.
Lambert and Henry stand for the proposition that a trial judge, as the factfinder in a bench trial, is not allowed to use his or her special knowledge of a particular subject to decide an issue without hearing evidence to support the judge’s findings. However, a trial judge is allowed to use his or her common knowledge and experience to determine the credibility of a witness and assess the weight of a witness’ testimony.
The facts of the case at hand follow Henry much more closely than Lambert. As in Henry, the judge here merely noted a situation he had encountered previously in cases involving domestic batteiy. Additionally, as in Henry, an expert witness would not be required to testify that it is common for a domestic violence victim to change his or her story prior to trial. This belief did not represent specialized knowledge or expertise personal to the trial judge. Finally, and importantly, the trial judge indicated that he was not basing his guilty verdicts solely on his common knowledge and experience about domestic violence victims. The trial judge also indicated that he was considering the physical evidence, including the photographs of the injuries and the written statement that Scourten made at the district attorney’s office the day after the incident. Considering all the evidence, the trial judge found that Scourten’s version of events that she gave to the police was far more persuasive than her testimony at trial.
We conclude that Dority was not denied a fair trial due to tire trial judge’s stated beliefs about domestic violence victims. Indeed, almost 10 years ago, while determining whether prior inconsistent statements of a witness can be used as substantive evidence to prove the elements of a crime, this court noted that “victims of domestic violence often recant their initial statements to police.” State v. Coppage, 34 Kan. App. 2d 776, 782, 124 P.3d 511 (2005). This is the sort of common knowledge that a factfinder is allowed to use to malee his or her credibility determinations. Here, the trial judge used his common knowledge and experience to explain why he found the police officers’ testimony to be more credible than Scourten’s testimony. But there was additional evidence to support the verdicts beyond a reasonable doubt, and Dority is not entitled to receive a new trial based on the trial judge’s statement about domestic violence victims.
Affirmed. | [
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Leben, J.:
John Caporale is licensed as a masters-level psychologist in Kansas, where he has practiced psychology since 1991. He obtained a doctorate degree in psychology in 2002 from a regionally accredited university in Minnesota, but the Kansas Behavioral Sciences Regulatory Board denied his application for a doctoral-level license because the Minnesota university’s doctoral program didn’t meet the Kansas Board’s academic standards.
After Kansas officials denied him a doctoral-level license, Cap-orale obtained a doctoral-level license in Minnesota, though he continued to practice psychology only in Kansas. After he had been licensed in Minnesota for 5 years, Caporale submitted a new ap plication for a doctoral-level license in Kansas based on reciprocity; a Kansas statute, K.S.A. 2013 Supp. 74-5315, provides that tbe Board “may grant” a license to a person licensed at the doctoral level in another state. But tire Board denied Caporale’s application because he hadn’t been practicing at the doctoral level in Minnesota, where he held the doctoral-level license.
Caporale appeals, contending that the Board was required to grant his application because he had a doctoral-level license in Minnesota and had practiced while so licensed for 5 years, the length of time the Board required for reciprocal licensing. See K.A.R. 102-1-3b. But K.S.A. 2013 Supp. 74-5315 clearly gives tire Board discretion when granting Kansas licenses based on reciprocity with other states, and the Kansas Board acted reasonably here. The basis for reciprocal admission is in part that a practitioner licensed in another state has successfully practiced there with no disciplinary action for some requisite period of time. There was no cause to grant Caporale a Kansas license based on 5 years without disciplinary action in Minnesota when he wasn’t practicing there at all. Caporale had never practiced in Minnesota, and he wasn’t licensed to practice at the doctoral level in Kansas. The Board did not abuse its discretion or otherwise act unreasonably by denying him a reciprocal doctoral-level Kansas license.
Factual and Procedural Background
Caporale received a master’s degree in clinical psychology from Emporia State University in 1991. Kansas law establishes two categories of psychology practice: (1) masters-level psychology and (2) licensed psychology, which requires a doctorate. See K.S.A. 2013 Supp. 74-5310(a); K.S.A. 74-5302(e); K.S.A. 74-5361(e). There are two types of practitioners within the masters-level category: masters-level psychologists and clinical psychotherapists. K.S.A. 74-5361(c), (d). The Board licensed Caporale as a masters-level psychologist in 1991 and as a clinical psychotherapist in 2000.
A person with a masters-level license may practice psychology for his or her employer, subject to some supervision requirements. The person may use the title “masters level psychologist” but may not use the title of “licensed psychologist” or “psychologist.” A person with a clinical-psychotherapist license may use the title “licensed clinical psychotherapist” but again may not use the title of “licensed psychologist” or “psychologist.” K.S.A. 74-5362.
In 2002, Caporale received a doctorate degree in psychology from Walden University, a regionally accredited institution in Minneapolis, Minnesota. Caporale applied for a Kansas license as a psychologist based on that degree, but the Board denied the application because Walden University’s doctoral program didn’t meet tire Board’s academic requirements. Caporale appealed, but our court affirmed the Board’s decision. Caporale v. Kansas Behavioral Sciences Regulatory Bd., No. 92,743, 2005 WL 638125 (Kan. App. 2005) (unpublished opinion). Caporale submitted another application to the Board in 2005, but it again denied it. Our court again affirmed the Board’s decision, this time based on collateral estoppel, a legal doctrine under which an issue already decided between two parties may not be relitigated. Caporale v. Kansas Behavioral Sciences Reg. Bd., No. 97,121, 2007 WL 2178255 (Kan. App. 2007) (unpublished opinion).
In 2006, the Minnesota Board of Psychology granted Caporale a license to practice in Minnesota as a clinical psychologist.
Caporale never practiced in Minnesota, though. From 2002, when he obtained his doctorate, to the time his application for reciprocal admission was denied, he was a clinical supervisor at Youthville Family Consultation Service in Wichita. He has been employed at Youthville since 1991.
In January 2012, Caporale submitted an application to the Board to be licensed as a psychologist in Kansas, this time through reciprocity rules. In his application, he said that he was a licensed psychologist and that he had worked as a clinical supervisor for at least 15 hours per week for 9 months during each of the past 5 years.
The Board has two methods for obtaining a reciprocal license— based either on substantially equivalent licensure requirements in the two states or on having practiced at tire required level in the other state for 5 years. See K.S.A. 2013 Supp. 74-5315(a)(1) and (a)(2); K.A.R. 102-1-3b(b)(3). The Board’s licensing manager responded to Caporale’s application; she told him that she would recommend denial of the reciprocal license because Minnesota didn't have substantially equivalent licensure requirements and because Caporale hadn't professionally practiced psychology at the doctoral level for 5 years.
Caporale did not contest the conclusion that Minnesota lacked substantially equivalent licensure requirements, but he asked the Board to rule that he met the eligibility requirement for a reciprocal license by having practiced psychology at the doctoral level for 5 years. The Board rejected Caporale's argument, concluding that he had not practiced psychology at the doctoral level in the only state where he was licensed to practice at that level, Minnesota.
Caporale appealed to the district court, which affirmed the Board. He then appealed to this court.
Analysis
The Board is an administrative agency, so we review its decisions based on the standards set out in the Kansas Judicial Review Act. See K.S.A. 77-601 et seq.; K.S.A. 2013 Supp. 74-5337. That Act provides eight bases for a court to grant relief from an agency's action, but Caporale only alleges that two of them apply here. He contends that the agency erred in its interpretation or application of the law, K.S.A. 2013 Supp. 77-621(c)(4), and that its action was arbitrary, capricious, or otherwise unreasonable. K.S.A. 2013 Supp. 77-621(c)(8). We will focus on tiróse two claims. And because the district court did not independently hear evidence, we review these issues without any required deference to its decision. See Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010); Muir v. Kansas Health Policy Authority, 50 Kan. App. 2d 854, 856-57, 334 P.3d 876 (2014).
For Caporale's claim of legal error, he argues that the Board is required to grant reciprocity admission to any applicant who meets the requirements set out by statute. But here Caporale runs into a hurdle at the very start of tire statute authorizing reciprocity admission — it says that the Board may grant a license on this basis, not that it must do so:
“(a) The board may grant a license to any person who, at the time of application, is registered, certified or licensed as a psychologist at the doctoral level in another jurisdiction if the board determines that:
(1) The requirements of such jurisdiction for such certification or licensure are substantially the equivalent of the requirements of this state; or
(2) the applicant demonstrates on forms provided by tire board compliance with the following standards as adopted by the board:
(A) Continuous registration, certification or licensure as a psychologist at the doctoral level during the five years immediately preceding the application with at least the minimum professional experience as established by rules and regulations of the board;
(B) the absence of disciplinary actions of a serious nature brought by a registration, certification or licensing board or agency; and
(C) a doctoral degree in psychology from a regionally accredited university or college.
“(b) An applicant for a license under this section shall pay an application fee established by the board under K.S.A. 74-5310, and amendments thereto.” K.S.A. 2013 Supp. 74-5315.
The word “may” in a statute typically signals that the decision is a discretionary one, not an entitlement. See In re R.S., 50 Kan. App. 2d 1105, 1113-14, 336 P.3d 903 (2014); Jordan v. Jordan, 47 Kan. App. 2d 300, Syl. ¶ 6, 274 P.3d 657 (2012). Even in legal documents, tire most common meaning of “may” is “has discretion to; is permitted to.” Garner’s Dictionary of Legal Usage 568 (3d ed. 2011). As our courts have noted, “may” usually won’t be considered a command unless something in the context indicates it was used that way. Friedman v. Kansas State Bd. of Healing Arts, 296 Kan. 636, 645, 294 P.3d 287 (2013); State ex rel. Secretary of SRS v. Jackson, 249 Kan. 635, 641-42, 822 P.2d 1033 (1991).
Giving “may” its typical meaning makes sense here in the context of the statute. The statute establishes some standards that are judgment calls. For example, applicants seeking reciprocity admission based on a minimum level of experience in another state must show “the absence of disciplinary actions of a serious nature” in the other state. (Emphasis added.) K.S.A. 2013 Supp. 74-5315(a)(2)(B). This sets up a standard like many others established in law that require the application of judgment. And the judgment here is exercised by the Board, which has specialized knowledge regarding practice in this field.
We note too that K.S.A. 2013 Supp. 74-5315 uses both “may” and “shall.” In subsection (a), the statute provides that the Board “may grant” a reciprocity license under certain conditions. In subsection (b), the statute provides that an applicant “shall pay an application fee” when applying for a reciprocity license. The use of “shall” in the same statute is an additional indicator that the legislature intended the word “may” to carry its ordinary meaning. See Tarrant Bell Property, LLC v. Superior Court, 51 Cal. 4th 538, 542, 121 Cal. Rptr. 3d 312, 247 P.3d 542 (2011). We reject Cap-orale’s argument that the Board is required to grant reciprocity applications whenever tire minimum standards set out by the statute have been met.
This does not mean that the Board can deny an application for any reason, which takes us to K.S.A. 2013 Supp. 77-621(c)(8), the second potential basis for overturning the Board’s decision. The Board cannot deny an application arbitrarily or in a manner that is otherwise unreasonable. K.S.A. 2013 Supp. 77-621(c)(8); see In re Protests of Oakhill Land Co., 46 Kan. App. 2d 1105, 1115, 269 P.3d 876 (2012).
There is nothing arbitraiy or otherwise unreasonable about tire Board’s decision in Caporale’s case. The Board had previously decided that the academic requirements of the institute where Cap-orale got his doctorate did not meet the Board’s standards. And deeming Caporale fit to qualify for admission based on tire lack of disciplinary action in Minnesota for 5 years — while he has practiced professionally only in Kansas — would make no sense.
The Arizona Supreme Court considered a similar case in Arizona State Bd. of Accountancy v. Cole, 119 Ariz. 489, 581 P.2d 1139 (1978). In Cole, an applicant sought an Arizona license as a certified public accountant (a CPA). The applicant, Cole, had lived in Arizona and had worked as an accountant for many years, but he lacked a college degree, which Arizona required for a CPA. Cole then sat for — and passed — the CPA exam and got a California CPA license; California did not require a college degree. Armed with the California license, Cole sought an Arizona CPA license through reciprocity. The Arizona licensing agency denied Cole’s application, and die Arizona Supreme Court affirmed diat decision. The court emphasized that reciprocity provisions allow professionals to move from one state to another and were not designed to allow citizens of a state to use out-of-state licenses to obtain licensure in their own states:
“It is crucial to note that the principle of comity embodied by such reciprocity provisions is not that licenses issued by another state should be recognized in Arizona, but rather that citizens of another state who are professionally licensed in that state should in certain circumstances be granted licensing advantages in Arizona. To permit an Arizona citizen to parlay the license of a state in which he has never resided into an Arizona license under the guise of ‘reciprocity’ would completely distort the meaning of that concept.” 119 Ariz. at 492.
We agree: the Kansas reciprocity provision is not designed to allow a Kansas resident professional to acquire an out-of-state license and then to use that license to obtain Kansas credentials he or she does not otherwise qualify for.
Caporale argues on appeal that K.S.A. 2013 Supp. 74-5315 doesn’t explicitly state that the professional experience required to obtain the reciprocal doctoral-level Kansas license be performed in the state in which the applicant holds the doctoral-level license. But that’s the obvious purpose of reciprocal-licensing provisions, as the Arizona Supreme Court explained in Cole. And K.S.A. 2013 Supp. 74-5315 clearly gives the Board discretion. Exercising authority under a statute that provides it with discretion, the Board does not abuse its discretion by refusing to grant a reciprocal Kansas license in this situation.
The district court’s judgment, which affirmed the Board’s decision, is affirmed. | [
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Arnold-Burger, J.:
In February 2012, Lancelot Joshua Wilburn and a companion were stopped by two Overland Park detectives at Oak Park Mall. Suspecting criminal activity, the detectives detained the two men and confiscated their cell phones. A bizarre sequence of events unfolded from this detention, resulting in an intercepted phone call, four arrests, the search of a fraudulently rented Kia, and the discovery of a large amount of evidence tying Wilburn to a fraud ring. But because the detectives lacked reasonable suspicion to stop and detain Wilburn, tire district court suppressed all evidence stemming from his detention, including the statements made by his companion, and the evidence seized from the Kia.
The State appeals this ruling on three bases: (1) Wilburn lacked standing to challenge his companion’s statements; (2) Wilburn lacked standing to challenge tire search of tire Kia; and (3) discovery of the Kia and its contents was inevitable. After a review of the evidence and the law we find: (1) Wilburn had standing to challenge his companion’s statements; (2) even though Wilburn had no standing to challenge the search of the Kia, its contents were still properly excluded as fruit of tire poisonous tree; and (3) the discovery of the Kia and its contents was not inevitable. Accordingly, we affirm the decision of the district court suppressing the companion’s statements and the items found in the Kia.
Factual and Procedural History
To quote the district court, the facts of this case are “a pit full of snakes that are swirling around with one another” combined with “a law school final in criminal procedure.” We will do our best to summarize tire events of February 2012.
Detective Byron Pierce from tire Overland Park Police Department was dispatched to Oak Park Mall in Overland Park. Pierce, who specializes as a fraud and financial crimes investigator, arrived with Detective Lance Jordan to investigate fraud at Barnes & Noble. Specifically, dispatch said that an African-American woman was committing check fraud at the store and had been detained. As Pierce exited his vehicle, he noticed two African-American men in the parking lot, walking away from Barnes & Noble and staring at him. The men were dressed appropriately and did not appear threatening or to be carrying contraband. However, one of the men appeared to fixate on Pierce, giving him what he termed “ The look.’ ” Pierce explained this look at the preliminaxy hearing:
“Say, for instance, you have a puppy at home and you put the puppy in a kennel and you go off to work. Somehow that puppy is able to defeat that lock on the door and the puppy is running loose all day long. You walk in the door, greeted by the puppy, and the first tiling that comes to mind is, What are you doing out? And the puppy is looking at you, What are you doing home? You’re both looking at each other like, well, I’ve been up to no good and, as the pet owner, I’m saying, What have you been into? It’s ‘the look.’ ”
Because of this look and his experience investigating fraud and financial crimes, Pierce suspected that one or both of the men may have been secondarily involved with tire check fraud at Barnes & Noble. When Pierce turned around toward the men, they began to separate and walk quickly away; Pierce alerted Jordan, and they pursued the men. The detectives stopped the men — later identified as Wilburn and Raymond Curtis — either just inside or just outside the nearby Dillard’s store and handcuffed them.
Detectives then questioned Wilburn and Curtis, learning — albeit through some evasiveness — that they originated from California and that they arrived in a vehicle. Pierce felt that the men’s stories conflicted in a suspicious manner. As such, Pierce detained Wilburn and Curtis and placed them in a police car. Importantly, he also confiscated their cell phones. After attempting to question both men further, Pierce left to interview tire woman detained at Barnes & Noble, who ultimately had no connection to either Wilburn or Curtis.
While Pierce was in Barnes & Noble, one of the seized cell phones began to ring, ringing “almost continually” during his interview with the check fraud suspect. Pierce answered the phone after the interview, and a female said, “ "Hey, I’m over at Chick-fil-A, come get me.’ ” Because Wilburn originally said he and Curtis were alone at the mall, Pierce and Jordan found the call suspicious and proceeded to investigate. At the. restaurant, they encountered two women — Tori Condolí and M'arldma Carroll— with a number of shopping bags. When asked about any potential connection to Wilburn, Condolí told Pierce that Wilburn was her boyfriend. The women consented to a search of their bags, and the detectives found receipts indicating that a third woman, Kathryn Green, had bought the items. The women stated that an aunt purchased the items but could not explain who Green was, leading the detectives to suspect the items were the fruits of identity theft.
In part due to a conversation with Nordstrom’s loss prevention team and in part due to his interview with Condolí, Pierce determined that at least Condolí and Carroll — and possibly all four suspects (Condolí, Carroll, Wilburn, and Curtis) — had arrived at the mall in a sport utility vehicle (SUV). When a search determined that none of the suspects had keys on their person, Pierce announced to the other officers working the case that they needed to look for keys to such a vehicle. Another officer then remembered a passerby outside of Barnes & Noble handing him a set of dropped keys, which he had turned into mall security. Pierce asked mall security to search the parking lot for the car matching the keys; the vehicle in question ended up being a blue Kia SUV with California license plates parked just north of Barries & Noble. Nords-trom and Target bags were visible in the car, as was clothing. Running the tags revealed that the Kia had been rented in California by a woman named Kathryn Green.
Ultimately, Pierce obtained a search warrant for the Kia, inside of which he and other officers recovered Nordstrom and Target purchases thought to be the fruits of criminal activity, as well as “instruments of fraud and forgery, counterfeit American Express Traveler’s Cheques,” and counterfeit credit cards naming Kathryn Green as the cardholder. Later, Condolí informed law enforcement that she was working for Wilburn using fraudulent credit cards and traveler’s checks. Moreover, a third party later contacted Pierce and provided him with counterfeit driver’s licenses, including one that purported to be Kathryn Green but had Condoll’s picture on it.
In connection with the foregoing series of events, the State charged Wilburn* with 20 offenses, including multiple counts of theft, forgery, identity theft* and a single count of criminal use of a financial card. Wilburn subsequently moved to suppress all evidence obtained subsequent to Pierce stopping him and Curtis outside Dillard’s. Wilburn argued that Pierce lacked reasonable suspicion to stop him and that, even if reasonable suspicion did exist, Pierce exceeded the scope of his investigatory stop by detaining him. Moreover, Wilburn contended that detectives lacked probable cause to arrest him. Because every seizure from the initial stop to the arrest was an illegal one, Wilburn argued that all evidence obtained from that stop needed to be suppressed as fruit of that initial illegality. The State argued that reasonable suspicion existed to stop Wilburn and that Pierce never exceeded the scope of die investigatory stop. Additionally, the State contended that both inevitable discovery and the attenuation doctrine applied, rendering the evidence admissible.
The district court heard the motion to suppress in multiple stages. The first portion of the motion was heard by Judge John Bennett over at least two dates. For the most part, the facts developed at this hearing are not relevant to this appeal. However, Jordan testified about tire amount of credit card and check fraud that occurs at Oak Park Mall, the structure of the groups that commit these types of fraud, and the events that occurred when he and Pierce encountered Wilburn and Curtis outside Barnes & Noble. Importantly, Jordan indicated that, while he and Pierce were at Chick-fil-A with Condolí and Carroll, Pierce spoke to another detective on the phone. That detective reported that earlier in the day, he had spoken to Nordstrom personnel about a group of individuals who were perpetrating credit card fraud at the mall. That detective also informed Pierce that the group in question originated from California, furthering the connection between Wilburn, Curtis, and the fraudulent transactions. Moreover, one of the females appeared on a surveillance video recovered from Nordstrom, which led to the arrest of all four suspects.
Other testimony developed during the hearing before Judge Bennett included the evidentiary foundation of certain information downloaded from cell phones in the case, Pierce’s explanation for why he needed the cell phone data downloaded, and some con fusion over the timeline between when Pierce answered the phone call from Condolí and when he arrived at Chick-fil-A.
The district court’s comments at the close of argument suggest that the pertinent issues at the this stage of the hearing concerned whether the initial stop was legal, whether Pierce answered Wilburn’s phone (rather than Curtis’), and whether the State could prove that the evidence from the Kia was discovered through means independent from the phone call. After argument, the district court ruled that the detectives lacked reasonable suspicion to stop Wilburn and Curtis in Dillard’s. The court also found that the State was unable to establish that Pierce had answered Curtis’ phone and not Wilburn’s phone. Because Pierce lacked reasonable suspicion to stop Wilburn, answering Wilburn’s phone was also impermissible, requiring the suppression of all evidence obtained as a result of that phone call as fruit of the poisonous tree. As for the question of the independent basis to tie Wilburn to Condolí, Carroll, and the Kia, the district court reserved dismissing the case to allow the State to review evidence and attempt to prove that such an independent basis existed. At that time, the State requested a 1-week continuance to “evaluate whether or not we are going to interlock the motion to suppress,” as well as to gather information for the remaining issues.
The State ultimately elected against an appeal of the March 2013 ruling, and in April and June 2013, Judge Sara Welch heard the second stage of the motion to suppress. This hearing addressed only the applicability of the doctrines of inevitable discovery and independent source, Wilburn’s standing to challenge the search of the Kia, and Wilburn’s standing to challenge the use of Curtis’ statements. Nothing in this hearing disrupted Judge Bennett’s ruling; rather, it served to address the outstanding issues raised by the parties.
Regarding standing, Wilburn and the State essentially agreed to ask that the district court take judicial notice of the transcript from the preliminaiy hearing when considering whether Wilburn had a possessory interest in the Kia sufficient to allow him to challenge the search. The-parties agreed that the basic facts included that the Kia was rented by Condolí and Carroll with fraudulent iden tification and credit cards and that Wilburn orchestrated tire rental. The legal argument focused on whether the fraudulent rental rendered the Kia stolen. After some discussion, the district court agreed to take judicial notice of the transcript and reserve ruling on the standing issue. The State then proceeded to present evidence regarding inevitable discovery and independent source. A brief overview of this evidence is as follows.
The loss prevention manager from Nordstrom, Elizabeth Ryn-erson, testified that on that day she was alerted to two women who were attempting to purchase items with a faulty credit card and identification from California that appeared to have been altered. The identity being used was Kathryn Green. Rynerson testified that Nordstrom personnel linked one of the women to a dark-colored SUV and that two individuals were sitting in the car. Ryn-erson contacted Detective Justin Russell, who “specializes in financial identity theft crimes,” about the suspicious transactions.
Officer Jason Goddard of the Overland Park Police Department testified that, after he arrived to assist with the Barnes & Noble call and while Wilburn and Curtis were detained, a passerby approached him with a set of car keys for a Kia that the passerby found in the parking lot. Goddard handed the keys off to a passing mall security officer. Goddard testified that he later informed Pierce about the keys in question.
Eugene Carnales, director of security at the mall, testified that when a lost item such as a set of keys is found at the mall, it is held by mall security until an individual comes in, describes the item, and provides identification. This entire process is reported and recorded. Carnales also explained that if a vehicle remains in the parking lot for approximately 5 days, security will consider it abandoned and contact the police to ensure the vehicle is not stolen or otherwise accounted for before towing. Carnales did add on cross-examination that, if an abandoned car is blocking traffic or was used in a crime, he will have it towed before the 5-day period expires.
A risk manager from Enterprise Leasing (Enterprise), Christopher Buck, testified that whenever a car owned by Enterprise is towed by the company the mall employs, that company will contact Enterprise to retrieve it. Enterprise will then inspect the vehicle at their facility, looking for damage and also any property that may be left behind. Buck explained that any suspicious or fraudulent material is reported to the authorities. When shown photographs of the evidence recovered from the Kia, Buck confirmed that Enterprise would have contacted the police about those items. Buck also testified that tire Kia in this case was rented from Enterprise in Los Angeles, California, but that the transaction turned out to be a fraudulent one. However, Buck acknowledged that Enterprise only learned about the fraud in April 2012, after the Kia had been returned to Enterprise by law enforcement.
Russell testified about the call from Rynerson, explaining that he did not intend to respond to Nordstrom that day because the suspects had left the store and because he wanted Rynerson to gather information such as video surveillance and the credit card transaction information prior to investigating. But that same afternoon, Russell and Pierce spoke on the phone about whether Russell “could have [Pierce’s] off-duty that evening because” Pierce was dealing with “a couple of people in custody that were from California.” Because Rynerson had told Russell that the women at Nordstrom originated from California, Russell told Pierce about the Nordstrom call. Russell testified that, but for the conversation with Pierce, he would not have followed up on the Nordstrom call until “[p]robably the next day.” He explained that part of the investigation would have been looking for the vehicle Rynerson described during the next evening, when the mall was closed.
Pierce testified about his experience investigating retail fraud perpetrated by organized groups at Oak Park Mall, many of whom originate from New York or Los Angeles. Pierce then recounted his initial encounter with Wilburn and Curtis, Curtis’ behavior and demeanor, and his reasons for asking about what vehicle the men arrived in. Pierce revealed that he called Russell because it was after 5 p.m. and Pierce — still “tied up” on the case — needed someone to cover an off-duty obligation at 6 p.m. Learning about the Nordstrom call from Russell led Pierce to suspect Curtis was connected to the fraud at Nordstrom. Pierce also recounted his own conversations with Rynerson regarding the fraud and the “dark-colored SUV.”
In regard to the keys that Goddard found, Pierce testified that after searching all four suspects (who at that point had been arrested) and finding no keys, he generally informed all the officers involved in the investigation about the missing keys. After Goddard informed Pierce about the keys found by the passerby, Pierce requested that mall security “get the key fob, hit the alarm, and find diat vehicle” associated with those keys. Security located the Kia— which matched Rynerson’s description — 10 to 15 yards away from where the keys were found, loaded with Nordstrom bags. The car was towed and searched pursuant to a warrant by Pierce and a member of the United States Secret Service (Secret Service) who was partnered with the police department.
Pierce also testified about the evidence found in the Kia, including the traveler’s checks and credit cards. Pierce further explained that Curtis was released the day after the February 2012 events because the police lacked evidence to hold him as part of the fraud ring. However, Pierce testified even after a suspect is released, his department and the Secret Service continue to investigate and follow up with that individual.
On cross-examination, Pierce revealed that by the time Russell called and Pierce went to Nordstrom, Wilburn had been detained and “effectively under arrest” for “at least a couple hours.” Pierce acknowledged that, because Wilburn was detained, he was unable to leave the mall widr or without the Kia.
Steve Hatch, a Secret Service agent who participates in financial crime investigation out of the Kansas City Secret Service office, testified about how his agency tracks and investigates financial crimes in various jurisdictions across tire countiy. Hatch, who helped search the Kia, testified that they found a ticket issued to Wilburn by Kansas Highway Patrol in the glove box. He also testified about how he determined Green was a victim of identity theft and not the true renter of tire Kia. He explained that some of Carroll’s actual belongings, including her driver’s license, were also recovered from the Kia. Hatch further testified that Wilburn’s name came up during the search, and that, upon investigating Wilburn’s history with the Secret Service, he uncovered other cases involving Wilburn. Hatch contacted other agents within the Secret Service to learn more about Wilburn’s past cases, and he verified tliat he would have continued investigating tire case in relation to events in other jurisdictions based on the contents of the car alone. Hatch also testified about how the evidence in the Kia led him to other stores in the Overland Park area where Green’s identity was fraudulently used.
On cross-examination, Hatch explained that the search warrant was executed the day after the initial events at Oak Park Mall and that the information he recovered from the other stores was discovered “outside of five days” from Wilburn’s arrest.
Agent Matthew Mitchell, also from the Secret Service, testified about his involvement with Wilburn through an earlier fraud case out of Utah and his contact with Hatch regarding the events at Oak Park Mall. Mitchell discussed what steps he would have taken to further develop the Secret Service’s case against Wilburn and the others involved in the fraud ring. Mitchell testified how the items found in the Kia would have led him to Carroll and allowed him to link the Oak Park fraud to both the original theft of Green’s identity and other crimes.
After the close of evidence, the district court and parties discussed setting over the argument portion of the hearing to a later date. During this discussion, confusion arose as to whether Curtis’ statements during the initial detention had been suppressed by Judge Bennett’s March ruling. The State contended that Curtis’ statements could not be suppressed by the March ruling because Wilburn lacked standing to challenge the admission of the statements. With Curtis’ statements about arriving from California in a vehicle and the Kia’s keys being lost — thus rendering the Kia immobile — the State argued that it was only a matter of time before the Kia was discovered, towed, inventoried, and subject to law enforcement investigation. With Secret Service involvement, the State reasoned that Wilburn’s role in the fraud would inevitably have been discovered. Wilburn rejected this assertion and argued that all the evidence obtained by Pierce and other officers — from answering the cell phone to the search of tire Kia — originated from the unlawful stop; and that the State’s inevitable discovery and independent source arguments were predicated on the Kia being towed after remaining in the Oak Park parking lot for 5 days. Moreover, Wilburn contended that, but for his unlawful detention, he could have recovered the keys and removed the Kia from the parking lot, thus preventing a future towing.
In terms of standing, the State argued that because the Kia was rented with a false identity using stolen credit cards, it was stolen and Wilburn lacked any interest or expectation of privacy sufficient to allow him to challenge its search. Wilburn contended that although the Kia was not lawfully rented, it was not actually stolen. The district court reserved its ruling pending further briefing and argument by the parties.
The district court concluded the hearing and issued its ruling in June 2013. Regarding Wilburn’s standing to challenge die search of the Kia, the district court determined that die Kia was rented with fraudulent documents. Moreover, the district court accepted the presumption in K.S.A. 2013 Supp. 21-5804(a)(l) (giving of a false identification or a fictitious name is prima facie evidence of intent to permanentiy deprive the owner of the property) and found “that the Kia was stolen at the time it was discovered by Overland Park [detectives].” Because the Kia was stolen and because Wilburn never “claimed either a proprietary or possessory interest” in it, he lacked standing to challenge the search. However, the district court determined it could not end its inquiry with the question of standing.
The district court returned to Curtis’ statements to law enforcement — statements “which arguably forged a link in the chain which led from the defendants to the dark-colored Kia” — and determined that they were “as much a fruit of the poisonous tree as would have been a bag of marijuana seized from his pocket during the course of th[e] unlawful detention.” Because Wilburn and Curtis “were stopped at the same time in the same place by the same officer for the same reason,” Wilburn had standing to challenge the admission of Curtis’ statements and no attenuating circumstances lifted the taint of the unlawful detention.
Without Curtis’ statements, the district court ruled that the “chain of events from the lost keys to the discovery of the car and its contents [was] not inevitable.” Similarly, the district court ruled that but for the arrest of the four suspects, it was unlikely that Pierce and Russell would have tied the fraud at Nordstrom to Wilburn, Curtis, and the lost keys. In short, “Curtis’s statements are outcome determinative of the inevitable discovery argument made by the State,” and the State “failed to prove . . . that the vehicle or the identities of foe female suspects would have been inevitably or ultimately discovered.” The district court also rejected foe State’s independent source argument. These rulings were memorialized in a journal entiy.
The State timely appealed but limited its appeal to “Judge Sara Welch’s order entered on June 26th, 2013 suppressing evidence.”
Analysis
Our standard of review
The State appeals from the suppression of evidence, which it is statutorily permitted to do. K.S.A. 2013 Supp. 22-3603. In reviewing the granting or denial of a motion to suppress evidence, this court must determine whether foe factual findings underlying foe trial court’s decision are supported by substantial competent evidence. The appellate courts do not reweigh the evidence, reassess foe credibility of the witnesses, or resolve conflicting evidence. The ultimate legal conclusion drawn from those factual findings, however, is reviewed under a de novo standard. State v. Martinez, 296 Kan. 482, 485, 293 P.3d 718 (2013). However, questions of standing — a component of jurisdiction — are subject to unlimited review on appeal. State v. Gilbert, 292 Kan. 428, 431-32, 254 P.3d 1271 (2011).
The notice of appeal was specific to Judge Welch’s rulings.
We begin by clarifying foe issues we will examine on appeal. Judge Bennett decided after an evidentiary hearing on March 22, 2103, that both Wilburn and Curtis were unlawfully stopped and detained by police. Under that ruling, Judge Bennett found that the officers had no reasonable and articulable suspicion upon which to base their stop of both men. Accordingly, all evidence obtained after the stop was suppressed. In anticipation of dismissal for lack of evidence, Judge Bennett gave foe State a chance to present an argument at a separate hearing that the evidence would still be admissible based on either the independent source doctrine or inevitable discovery “independent of this suppression ruling.” The case was set for such a hearing before Judge Welch. According to the transcript of that hearing, Judge Welch was asked to decide not only inevitable discovery and the independent source doctrine, but also whether Wilburn had standing to challenge Curtis’ statements to police and the search of the Kia. Apparently, the parties submitted additional briefing on the topic, but it is not included in the record on appeal. Judge Welch approached the case from the point in time where Judge Bennett had concluded the detention was unlawful. She did not revisit that ruling.
Wilburn argues correctly that appellate jurisdiction only exists when the appeal conforms to statutory requirements. See State v. Garza, 295 Kan. 326, 329, 286 P.3d 554 (2012). Moreover, the appellate court only obtains jurisdiction over the rulings identified in the notice of appeal. 295 Kan. at 329. A general notice of appeal may be read liberally to include issues not specifically named, but a “limited and specific” notice limits the appellant to those issues or judgments enumerated therein. See State v. G.W.A., 258 Kan. 703, 707, 906 P.2d 657 (1995); see also State v. Laurel, 299 Kan. 668, 673-74, 325 P.3d 1154 (2014) (citing Gates v. Goodyear, 37 Kan. App. 2d 623, 626-29, 155 P.3d 1196, rev. denied 284 Kan. 945 [2007], for the proposition that a notice of appeal citing two specific district court rulings is insufficient to confer jurisdiction over other issues not addressed in those rulings).
In this case, the State specifically appealed “Judge Sara Welch’s order entered on June 26, 2013 suppressing evidence.” Judge Welch assumed the correctness of Judge Bennett’s ruling and went on to address the issues she was asked by the parties to decide. Accordingly, Wilburn argues that the court does not have jurisdiction to consider Judge Bennett’s ruling because it is not mentioned in the notice of appeal. We agree but find drat even if we consider the sole issue decided by Judge Bennett, that being the legality of the stop, we would not reach a different conclusion than Judge Bennett.
The stop of Wilburn was not based upon a reasonable suspicion of past, current, or future criminal activity.
The parties do not dispute the fact that this was an involuntary stop and seizure. Pierce and Jordan stopped Wilburn and Curtis in or just outside Dillard’s through a show of authority. “Without maldng an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.” K.S.A. 22-2402(1). “Even a brief seizure must be ‘reasonable’ under the Fourth Amendment.” State v. Moralez, 297 Kan. 397, 404, 300 P.3d 1090 (2013). A brief, investigatory detention is both constitutional and statutorily permitted if an objective officer would have a reasonable and articulable suspicion that the detainee committed, is about to commit, or is committing a crime. 297 Kan. at 405.
At the time of the stop, the officers had no reasonable and ar-ticulable suspicion that Wilburn or Curtis had committed any crime. Pierce testified that the sole basis for the stop was the puppy dog “look.” We have no trouble concluding that a puppy dog look is insufficient to establish a reasonable and articulable suspicion of criminal activity. This was nothing more than a hunch. “[A] hunch has never been the benchmark of a proper police seizure.” Martinez, 296 Kan. at 488. The hunch resulted in Wilburn’s arrest and subsequently in Pierce answering Wilburn’s phone, which he had seized. Still based upon his hunch, Pierce proceeded to the Chick-fil-A where the whole case started to come together. Therefore, even if Judge Bennett’s ruling on the legality of the stop and the resulting suppression of the evidence obtained had been properly appealed, we find it was supported by substantial evidence and we reached the same legal conclusion.
The Fourth Amendment principles at issue in Judge Welch’s ridings are reviewed.
The Fourth Amendment to the United States Constitution guarantees “ ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and sei zures.’ ” State v. Moralez, 297 Kan. 397, 404, 300 P.3d 1090 (2013). This right is also present in Section 15 of the Kansas Constitution Bill of Rights. 297 Kan. at 404. When a defendant alleges a violation of diese rights and challenges the admission of evidence based on that violation, the State must “establish the lawfulness of the challenged search or seizure.” 297 Kan. at 408-09. If the State cannot meet this burden, the exclusionary rule may apply and suppress the evidence. 297 Kan. at 409.
The exclusionary rule is a judicially created remedy which exists to prevent the use of unconstitutionally obtained evidence in a criminal proceeding and applies when such suppression would act to deter illegal conduct by the State. State v. Karson, 297 Kan. 634, 639, 304 P.3d 317 (2013). An important part of the exclusionary rule is the “fruit of the poisonous tree” doctrine, which “extend[s] the scope of the exclusionary rule to bar not only evidence directly seized, but also evidence indirectly obtained as a result of information learned or leads obtained in the unlawful search.” State v. Deffenbaugh, 216 Kan. 593, 598, 533 P.2d 1328 (1975). This doctrine applies to all derivative evidence, be it physical or testimonial. 216 Kan. at 598.
The district court did not err in finding that Curtis’ statement to detectives coidd not be used against Wilburn.
When Wilburn and Curtis were unlawfully stopped and detained by police, Curtis told the officers “ T’m from California’ ” and “ ‘[w]e arrived in a vehicle.’ ” Even though Judge Bennett found that the stop was unlawful and the evidence should be suppressed, the State asserts that Wilburn lacks standing to challenge the statements made by Curtis. Accordingly, it seeks the ability to use these statements against Wilburn in an effort to connect him to the Kia with a California license plate. Because the facts are not in dispute, we review the court’s legal conclusion de novo.
In support of this contention, the State relies primarily on cases involving Miranda warnings rather than those involving the Fourth Amendment — and overlooks the clear guidance provided by State v. Hodges, 252 Kan. 989, 851 P.2d 352 (1993). There, an officer trailed a slow-moving car for quite some time, suspicious that the car might be involved in some of the many burglaries that recently occurred in Manhattan’s business district. Another officer finally stopped the car as it neared the interstate, but without witnessing a traffic infraction and without “reason to believe that the suspects were trying to flee or elude [the officers] or that a crime was going to be committed.” 252 Kan. at 991. The driver consented to a search of the car, where burglaiy tools (screwdrivers and a pry bar) were discovered. The next day, after being arrested and charged, one of the passengers confessed, implicating another passenger, Hodges, in a number of business burglaries. The district court suppressed the evidence and the passenger’s confession as fruit of die illegal traffic stop.
On appeal by the State, our Supreme Court took up a number of issues, including Hodges’ standing to challenge the other passenger’s statements. 252 Kan. at 1002. Although die State contended that Hodges’ argument amounted to a vicarious assertion of die passenger’s Fourth Amendment rights, the court rejected this assertion. 252 Kan. at 1003-05. Instead, the court observed that “Hodges was subject to the illegal car stop and is arguing that the confession is fruit of the poisonous tree” and that, as such fruit, “die defendant had standing to seek suppression of [the passenger’s] confession.” 252 Kan. at 1005. However, the court ultimately refused to suppress the passenger’s confession because it was sufficiently separated from the illegal stop; specifically, the confession occurred the next day after he requested to speak to police in an effort to make a deal tiiat would benefit him. In other words, the court applied the attenuation doctrine to allow the confession into evidence. 252 Kan. at 1008-09.
Like Hodges, Wilburn sought to suppress Curtis’ statements only as fruits of the shared illegal stop. But unlike Hodges, the State raises no argument in favor of attenuation or any other bréale in the chain of events between the illegal stop and Curtis’ statement— nor could it successfully make such an argument. As such, Wilburn clearly had standing to object to the use of Curtis’ statements, and the district court’s decision in that regard is affirmed.
The district court’s finding that Wilburn lacked standing to challenge the search does not lead to the conclusion that the evidence found in the Kia is admissible.
The district court found that the Kia was stolen and, therefore, Wilburn did not have standing to challenge its search. But Judge Welch went on to conclude that the evidence recovered from the Kia was inadmissible regardless of Wilburn’s standing to challenge the search because it would not have been discovered but for the illegal stop and, as such, was the fruit of the illegal stop and seizure. The State, however, argues that Wilburn’s lack of standing requires reversal of this decision.
It appears that the State’s position is that Wilburn’s lack of standing to challenge any search to the Kia controls the admissibility of the evidence — illegal seizure or not. But a defendant’s standing to challenge the search of a vehicle is not always determinative of the search’s admissibility. In State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985), an officer on patrol in the early hours of the morning noticed a parked BMW with two men inside. The men appeared to be startled by the patrol car and, after some action inside the car, exited the vehicle and began to walk away. The officer exited his vehicle, caught up to the men, and spoke to them; they avoided directly answering his questions. When the officer looked inside the BMW, which was unlocked and had its window rolled down, he discovered an axe and two baggies that likely contained cocaine in the car. He arrested the two men, but the district court suppressed the evidence in the car because “the officer did not have a reasonable or articulable suspicion of criminal activity to justify an investigative stop” and “the initial seizure of the defendants, the search of the car, and the seizure of the cocaine was unlawful.” 237 Kan. at 709. The State appealed first to this court and then to our Kansas Supreme Court.
After finding that the officer lacked grounds to stop the two men and that his search of the car was unlawful, our Supreme Court moved on to a third question: Could the evidence found in the car be admitted into evidence against the car’s passenger? 237 Kan. at 714-16. Examining the relevant caselaw, tire court determined that the passenger lacked standing to challenge the unlawful search because he failed to meet his burden to establish drat the search violated his Fourth Amendment rights. 237 Kan. at 716-17. But the passenger also contended that the evidence found in the car constituted the fruit of the illegal stop and seizure. Our Supreme Court observed the following:
“We have held, and the rule is generally, that a passenger has no standing to challenge tire search of a car which does not belong to him. Here, however, the initial stop and seizure of both [men] was illegal, and we have so held. The search of the car followed quickly upon the heels of that illegal seizure. It would not seem logical to permit the evidence to be used as against the former passenger and not as against the former driver.” 237 Kan. at 717.
Because the stop was illegal, the passenger’s rights were violated, and his “right to challenge the search stem[med] not from the fact that he was previously a passenger in the motor vehicle, but because he is a person who was unlawfully stopped and seized, and because the search followed as a consequence thereof.” 237 Kan. at 718. As such, the court upheld the suppression of evidence. 237 Kan. at 718.
The United States Court of Appeals for the Tenth Circuit has held similarly, explaining:
“ ‘This court has repeatedly recognized that although a defendant may lack the requisite possessory or ownership interest in a vehicle to directly challenge a search of that vehicle, the defendant may nonetheless contest the lawfulness of his own detention and seek to suppress evidence found in the vehicle as the fruit of the [defendant’s] illegal detention.’ [Citations omitted.]” United States v. DeLuca, 269 F.3d 1128, 1132 (10th Cir. 2001).
Other federal courts of appeals agree with this conclusion. See United States v. Bueno, 703 F.3d 1053, 1059 n.3 (7th Cir.), vacated on other grounds by Gonzalez-Zavala v. United States, 569 U.S. _, 133 S. Ct. 2830 (2013); United States v. Green, 275 F.3d 694, 699 (8th Cir. 2001) (“Even though [defendant] lacked a possessory or property interest in the motor vehicle that would enable him to directly challenge the search, he may still contest the lawfulness of his own detention and seek to suppress evidence as the fruit of his illegal detention.”). In a case involving a passenger who challenged guns found in a car as the fruits of an illegal traffic stop, the Third Circuit cautioned:
“But we should not be distracted by the fact that this case involves evidence found in a car. This is not an'‘auto search’ case. The search of the car is not before us; the seizure of [the defendant] is. This case is about an illegal seizure by tire police of the defendant, pursuant to which evidence was discovered. The violation of [the defendant’s] Fourth Amendment rights was the traffic stop itself.” United States v. Mosley, 454 F.3d 249, 253 (3d Cir. 2006).
Moreover, the Tenth Circuit has more broadly rejected “the proposition that the fruit of the poisonous tree doctrine applies only when the defendant has standing regarding both the violation which constitutes the poisonous tree and separate standing regarding die evidence which constitutes the fruit of that poisonous tree.” United States v. Olivares-Rangel, 458 F.3d 1104, 1118 (10th Cir. 2006). In discussing whether a defendant could challenge the contents of his immigration and criminal record “A-file” as fruits of an illegal stop, the court explained: “A defendant’s standing to challenge the admissibility of evidence deemed fruit of an illegal search and seizure therefore arises from the alleged violation of his Fourth Amendment rights by virtue of the primary illegality.” 458 F.3d at 1117, 1119. As such, “[tjhere is no independent requirement that a defendant also have standing or a proprietary interest in die items sought to be suppressed under the fruits of the poisonous tree doctrine.” 458 F.3d at 1119.
Although Epperson and Olivares-Rangel involve slightly different fact patterns than those at issue here, the principle guiding those cases — namely, that a defendant may challenge derivative evidence from an illegal seizure of his or her person regardless of his or her interest (or lack of interest) in that evidence — is sound when applied to the facts of this case. This case, like Mosley, revolves around an illegal stop and detention, not the search of an automobile. Pierce and Jordan lacked reasonable suspicion to stop Wilburn; as a result of their illegal actions, a string of events unraveled, ultimately leading the detectives to the Kia and the evidence within. The illegality of that stop is unaffected by Wilburn’s lack of possessory or ownership interest in the Kia, and die violation of his rights is not somehow cured by this lack of interest. The evidence was uncovered as a result of that initial illegal act and must dierefore remain suppressed.
As ancillary to this argument, the State contends drat either Wilburn or Curtis threw away the keys to the Kia, thereby intentionally abandoning it. It is well established that “an individual who abandons property is not permitted to contest the legality of the search and seizure of the property.” State v. Ralston, 45 Kan. App. 2d 1024, 1027-28, 257 P.3d 814 (2011), rev. denied 293 Kan. 1112 (2012). Aside from the fact that nothing in the record indicates that Wilburn and Curtis purposely threw away the keys — let alone with the intention to abandon the Kia — the foregoing analysis still- applies. Wilburn’s stop remains illegal, and die discoveiy of the Kia remains the last event in the chain that began at tiiat stop. As such, the district court’s decision suppressing the evidence from the Kia, even though Wilburn had no possessory interest in the Kia, is affirmed.
The inevitable discovery doctrine does not apply here.
The State lastly argues that the inevitable discoveiy doctrine applies and renders the evidence in the Kia admissible. The State predicates this argument on two assumptions: (1) diat Curtis’ statements, if admissible, would have provided a prompt link between die Nordstrom fraud and Wilburn; and (2) that Wilburn and Curtis would not have been able to recover the Kia’s keys.
If the prosecution can establish by a preponderance of the evidence that otherwise unlawfully obtained evidence ultimately or inevitably would have been discovered by lawful means, die evidence is admissible under the inevitable discovery doctrine. The burden is on die State to demonstrate ultimate admissibility. State v. Stowell, 286 Kan. 163, 166, 182 P.3d 1214 (2008). Importantly, “inevitable discoveiy involves no speculative elements but focuses on demonstrated historical facts capable of ready verification or impeachment.” Nix v. Williams, 467 U.S. 431, 444 n.5, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). As noted by this court in State v. Mollett, No. 97,999, 2008 WL 3852167, at *12 (Kan. App. 2008) (unpublished opinion), rev. denied 287 Kan. 768 (2009), “the inevitable discovery exception does not invite speculation about the possible series of events under which the evidence may have been discovered, but requires an affirmative showing of a reasonable probability that the evidence would inevitably be discovered through lawful means already initiated when the seizure was made.”
At the hearing before the district court, the State elicited testimony in support of this position. Its path to inevitable discovery, as demonstrated by the testimony, is essentially as follows:
• After remaining in the parking lot for 5 days, the Kia would have been towed.
• Enterprise would have collected the car from the tow company.
• Enterprise would have inspected the Kia and inventoried its contents.
• Suspicious of the personal property left inside the vehicle, Enterprise would have contacted law enforcement.
• Law enforcement would have recognized the property as evidence of fraud.
• Law enforcement would have contacted the Secret Service for assistance with the investigation into the suspicious items in the Kia.
• The Secret Service would have used the items within the car, as well as their internal agency resources, to tie the Kia to Carroll and Wilburn.
• The Secret Service would have also used the evidence from the Kia to find the area stores that Wilburn and his compatriots had defrauded.
• Russell and Pierce would have spoken about the Nordstrom fraud at some point, leading the men to discuss Curtis’ statements about California and further tying all the pieces together.
But the State’s sequence of events is predicated both on the admissibility of Curtis’ statements, which we have found were not admissible, and on the assumption that the Kia would have remained in the parking lot for 5 days. Even assuming that Curtis’ statements about coming from California were admissible, nothing in the record indicates that the Kia would not have been recovered by either Wilburn or one of the other suspects. In fact, Camales, the director of mall security, testified that one recovers lost property by describing the item and showing identification. Security then records the exchange and returns the property to its owner. It is logical to assume that one of the four suspects would have recovered the keys from the mall security office at some point that same day and driven the Kia away, especially given the keys had been recovered and were safely held in the mall security office. In fact, had Wilburn not been detained, he likely could have recovered the Kia himself.
Moreover, many of the other links in the State’s inevitable discovery chain are very tenuous ones. Russell testified that, but for his phone call with Pierce, he likely would not have investigated the Nordstrom call or looked for the vehicle associated with that incident until the next day. Hatch testified that the information he recovered from tire other stores occurred after the search of the Kia and “outside of five days” from the initial encounter between Wilburn and the detectives. And every link in the chain — from the tow at the mall parking lot down to the interaction between the Secret Service and local law enforcement — is predicated on prompt action by each individual and agency involved. The situation is simply too speculative to constitute inevitable discoveiy.
The State attempts to analogize this case to those where discovery of the incriminating evidence would be fairly immediate. See State v. Walker, 283 Kan. 587, 604-05, 153 P.3d 1257 (2007) (the independent police investigation, when combined with the defendant’s admissible statements, would have uncovered the vehicle used in the crime); State v. McKessor, 246 Kan. 1, 7-8, 785 P.2d 1332 (1990) (apart from the public safety exception, the gun would have been discovered approximately 2 hours later pursuant to a valid search warrant); State v. Waddell, 14 Kan. App. 2d 129, 134-35, 784 P.2d 381 (1989) (the illegally frisked defendant would have been taken to jail and processed regardless of the search). But the facts in tiróse cases, unlike the facts in the instant case, are quite straight-forward. ■ In contrast, the State in State v. Mollett, No. 97,999, 2008 WL 3852167 (Kan. App. 2008) (unpublished opin ion), rev. denied 287 Kan. 768 (2009), essentially argued that even had officers not illegally stopped a car parked in a high-crime area, they would have run the tags, learned of the driver s outstanding warrant, arrested him, and impounded the vehicle, thereby discovering stolen property during an inventoiy search. This court rejected that argument as too speculative as there was no concrete evidence demonstrating that the officers would definitely have discovered the driver’s warrant, arrested him, and impounded the vehicle, which he did not own. 2008 WL 3852167, at *11-12. Similarly, in State v. Flesher, No. 94,175, 2006 WL 1379606, at *4 (Kan. App. 2006) (unpublished opinion), rev. denied 284 Kan. 948 (2007), this court rejected the inevitable discovery doctrine because the facts required the State to “heap conjecture onto speculation to construct a scenario in which” the defendant would leave a party drunk and somehow encounter law enforcement who would then “identify him as a probable underage drinker.”
Both Mollett and Flesher involve situations in which discovery of the evidence at issue was certainly possible, but not inevitable. In this case, tire Kia likely would not have been towed until at least 5 days after the police encountered Wilburn and Curtis. Wilburn and Curtis could have easily recovered the keys within those 5 days. Even if the car were towed, Enterprise would still need time to inspect it, find the suspicious contents, and contact law enforcement; even with that contact, local law enforcement and the Secret Service would need to interface effectively to uncover Carroll’s and Wilburn’s connections to the Kia — and then, to the fraud at Oak Park Mall.
This court reviews factual findings under the substantial evidence standard. Martinez, 296 Kan. at 485. Substantial evidence refers to legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. State v. May, 293 Kan. 858, 862, 269 P.3d 1260 (2012). Given the frankly improbable chain of events that unraveled at Oak Park Mall in February 2012 and the equally unlikely chain of events required to discover the Kia without first detaining Wilburn and Curtis, it is clear that the district court’s conclusion was supported by substan tial evidence. It is also legally sound. As such, its decision is affirmed, and the evidence from the Kia was properly suppressed.
We pause to note that the State fails to brief the argument it made in district court concerning the independent source doctrine. Accordingly, we view it to have abandoned any such claim and we will not address it here. See State v. Boleyn, 297 Kan. 610, 633, 303 P.3d 680 (2013) (an issue not briefed by the appellant is deemed waived and abandoned).
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Green, J.:
The claimant, Judy Ward, sustained an injury while working for the respondent, Allen County Hospital (hospital). Ward applied for workers, compensation benefits based on her injuries. The administrative law judge (ALJ) held a hearing to determine, among other tilings, the nature and extent of Ward’s disability. Ultimately, the ALJ awarded Ward permanent partial disability compensation for a 75.50% work disability, up to the statutory maximum compensation award of $100,000 under K.S.A. 44-510f(2). The hospital appealed to the Kansas Workers Compensation Board (Board), which modified Ward’s ALJ award to reflect a credit for her 15% preexisting impairment of function. But instead of reducing Ward’s compensation award by 15%, a majority of the Board decided to merely subtract 15% from her total amount of work disability. Thus, a majority of the Board concluded that Ward was entitled to compensation for a 60.75% work disability, which still resulted in her receiving the statutoiy maximum compensation award of $100,000.
On appeal, the hospital argues that the Board erred in calculating Ward’s permanent partial disability award. Specifically, the hospital contends that we “should find that the [Board] below erroneously interpreted and applied K.S.A. 44-501(c)” when calculating Ward’s disability compensation award. Ward has filed a cross-appeal, arguing that the Board erred in finding that she had a 15% preexisting functional impairment. We determine that Ward’s cross-appeal has no merit. The Board’s factual finding that Ward suffered from a 15% preexisting functional impairment, in light of the record as a whole, is supported to the appropriate standard of proof by substantial evidence. See K.S.A. 2013 Supp. 77-621(c)(7).
Moving to the hospital’s appellate argument, we hold that the Board erred in calculating Ward’s permanent partial disability com pensation award. The express language of K.S.A. 44-501(c) requires that a claimant’s award of compensation be reduced by his or her percentage of preexisting functional impairment. Because the express language of K.S.A. 44-501(c) requires the award of compensation to be reduced by the percentage of the preexisting functional impairment, the Board erred in its calculation. Accordingly, we reverse and remand with directions that the Board calculate Ward’s permanent partial disability compensation award consistent with this opinion.
Ward began worldng at Allen County-» Hospital as a shift nurse in 1993. In 2003, Ward underwent a foraminotomy and discectomy at the C6-7 level to repair her cervical spine. During that time, Ward performed post-surgery physical therapy. Ward took between 9 and 12 weeks off before returning to work. Ward did not have any further work restrictions following the surgery, and.she did not seek any medical attention once she returned to work.
On April 22, 2010, Ward reinjured her cervical spine while assisting a patient sitting on the side of a bed. When the patient began to fall after trying to get up, Ward caught the weight of the patient with her right arm. Ward immediately felt pain in her neck and right shoulder. Dr. Nazih Moufarrij treated Ward for her work injury. Specifically, Dr. Moufarrij performed an anterior cervical discectomy and fusion at the C6-7 level. This procedure was in the same area as Ward’s 2003 surgery. Ward did not return to work after the second surgery.
Ward applied for workers compensation benefits. The ALJ held a hearing to determine, among other things, the nature and extent of Ward’s disability. Dr. Paul Stein, a board certified neurosurgeon, evaluated Ward after her work injury.- During Dr.. Stein’s examination, Ward stated that she continued to experience residual numbness in the fingertips of her right hand after her 2003 surgery. After Dr. Stein finished his evaluation, he concluded that Ward had an overall 25% impairment to her body as a whole based on the American Medical Association Guides to the Evaluation of Permanent Impairment 4th ed. 1995) (AMA Guide). Dr. Stein also determined that Ward had a 15% preexisting permanent impairment to the body because of her 2003 radiculopathy and surgery.
Regarding Ward’s 2003 injuiy, Dr. Stein explained that Ward fit under Cervicothoracic Category III of the Diagnosis-Related Estimates (DRE) Model because a foraminotomy is performed to reheve nerve root compression resulting in radiculopathy. Consequently, Dr. Stein stated that once a patient has a radiculopathy diagnosis, then that diagnosis and impairment remains with the patient. Dr. Stein then explained that Ward clearly had radicular nerve root compression in 2003 because no competent surgeon would have performed the procedure unless she suffered from that condition. Finally, Dr. Stein concluded that Ward had a 50% task loss.
Ward also was examined by Dr. Edward Prostic after her 2010 work injuiy. Dr. Prostic used a two-point inclinometer to measure Ward’s range of motion. After evaluating Ward, Dr. Prostic concluded that she had a 53% task loss. Dr. Prostic’s testimony, however, was equivocal regarding Ward’s preexisting impairment, and he ultimately refrained from offering an opinion on whether she had suffered a preexisting impairment.
The ALJ concluded that Ward had “suffered personal injuiy by accident, arising out of and in the course of her employment” with the hospital. By averaging the task loss opinions of the parties’ experts, the ALJ concluded that Ward suffered a 51.5% task loss. The ALJ also concluded that Ward had a 100% wage loss and that Ward did not have to prove that her wage loss was caused by her work injuiy.
As for the nature and extent of Ward’s injury, the ALJ believed that Dr. Stein’s report was more credible, and the ALJ concluded that Ward had suffered a 25% impairment of function to the body as a whole. The ALJ determined that 15% of Ward’s impairment of function to the body as a whole predated the 2010 work injury. The ALJ awarded Ward 41.50 weeks of permanent partial disability at a rate of $546 or $22,659 as compensation for 10% functional disability. Then, the ALJ concluded that the average of Ward’s task loss and wage loss resulted in a 75.75% permanent partial general “work” disability. However, the ALJ awarded Ward permanent partial disability compensation for a 75.50% work disability, up to the statutory maximum compensation award of $100,000.
The hospital appealed to the Board. The Board modified the ALJ’s award to reflect a credit for Ward’s 15% preexisting impairment of function. But instead of reducing Ward’s compensation award by 15%, a majority of the Board decided to merely subtract 15% from Ward’s total amount of work disability. As a result, a majority of the Board concluded that Ward was entitled to compensation for a 60.75% work disability, which still resulted in Ward receiving the statutory maximum compensation award of $100,000. In reaching its decision, a majority of the Board noted that it would have been “excessive” to reduce Wardls compensation award by 15% as opposed to reducing her work 'disability.
One member of the Board dissented from the decision. The dissenting board member opined that the majority’s decision was inconsistent with the plain language of K.S.A. 44-501(c). According to the dissenting member, the appropriate “method of applying the preexisting credit in this and similar cases is to reduce tire statutory maximum amount by the percentage of preexisting impairment.”
The hospital timely appealed from the Board’s decision.
In addition, Ward has filed a cross-appeal, contending that the ALJ and Board erred in finding that she had a 15% preexisting functional impairment.
Did the Kansas Workers Compensation Board Err in Determining that Ward Had a 15% Preexisting Functional ImpairmentP
Through her cross-appeal, Ward contends that the Board erred in finding that she had a 15% preexisting functional impairment. On the other hand, the hospital maintains that the Board’s determination that Ward had incurred a 15% preexisting, functional impairment was supported by substantial competent evidence.
K.S.A. 2013 Supp. 44-556(a) directs that final orders of the Workers Compensation Board are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., as amended. The standard of review varies depending upon the issue raised. See K.S.A. 2013 Supp. 77-621 (defining and limiting scope of review of administrative decisions under KJRA). Here, Ward’s cross-appeal requires us to determine whether the■ Board erred in finding that she had suffered a 15% preexisting functional impairment. An appellate court reviews a challenge to the Board’s factual findings in light of the record as a whole to determine whether the findings are supported to the appropriate standard of proof by substantial evidence. See K.S.A. 2013 Supp. 77-621(c)(7).
“ ‘[I]n light of the record as a whole’ ” is statutorily defined as meaning
“that the adequacy of the evidence in the record before the court to support a particular finding of fact shall be judged in light of all the relevant evidence in the record cited by any parly that detracts from such finding as well as all of the 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 the 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.” K.S.A. 2013 Supp. 77-621(d).
Although not statutorily defined, “substantial evidence” refers to “ 'evidence possessing something of substance and relevant consequence to induce the conclusion that the 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).
As might be expected, the most common type of evidence for this purpose is medical testimony and reports. Here, the medical evidence consisted of the testimony of Drs. Stein and Prostic. During his deposition, Dr. Stein confirmed that Ward had undergone a right C6-7 foraminotomy operation in 2003 because of a non-work-related injury. Dr. Stein explained that the purpose of a for-aminotomy operation is to take pressure off the nerve for radicu-lopathy or radicular pain. According to Dr. Stein, Ward complained of discomfort and residual numbness in the fingertips of her right hand after the 2003 surgery.
As for Ward’s permanent and preexisting impairments, Dr. Stein stated the following:
“Using [t]he Fourth Edition of the AMA Guides to the Evaluation of Permanent Impairment, because of the loss of the motion segment from the fusion at C6-7 she would be in diagnosis related Categoiy IV, which carries a 25 percent whole person impairment. She had had a previous radiculopathy, she had had pervious surgery, and my estimate for her pre-existing status of impairment used in the AMA Guides requirements was Categoiy III, 15 percent. Therefore, she moved from Categoiy III to Category IV by virtue of this injury, and the additional surgery. And so there would be a ten percent impairment to the body as a whole from the injury of April 22nd, 2010.”
Dr. Stein also pointed out that under the Fourth Edition of the AMA Guides, an individual who undergoes cervical spine surgeiy automatically qualifies for permanent impairment regardless of the outcome of the surgery. When Dr. Stein was questioned about the use of the AMA Guides during cross-examination, he stated that “when they did [t]he Fourth Edition of [t]he Guides, they said if you have laminectomy, you lost some physiologic part of your function. I am not going to argue with that.” Dr. Stein also noted that no competent surgeon would have performed Ward's 2003 operation unless she had significant signs of radiculopathy. Because Ward had undergone neck surgery based on her radiculopathy, Dr. Stein opined that Ward had a 15% preexisting functional impairment according to the AMA Guides. Finally, Dr. Stein noted that Ward’s complaints of numbness in her fingertips following the 2003 surgery were evidence of loss of physiologic function, which supported his opinion.
Dr. Prostic, on the other hand, was equivocal about whether Ward had any preexisting functional impairment. At one point Dr. Prostic stated that Ward may have had a preexisting impairment. Moreover, Dr. Prostic stated “yes” when asked whether it was “clear from the medical records that [Ward] had a prior problem at C6-7.” Dr. Prostic also stated that it was common for someone who had undergone the same procedure as Ward’s 2003 operation to have a decrease in range of motion after the surgery. But later during his testimony, Dr. Prostic stated drat “[Ward] may not have had any permanent impairment following her 2003 surgery.” Even so, Dr. Prostic stated that he was not providing an opinion as to Ward’s preexisting impairment.
Based on the medical evidence provided above, die Board’s 15% preexisting impairment finding is supported by substantial evidence. Using the AMA Guides, Dr. Stein opined that Ward suf fered from a 15% preexisting functional impairment. Dr. Stein’s testimony was not contradicted by Dr. Prostic. Indeed, Dr. Prostic stated that his opinion did not include a determination as to Ward’s preexisting impairment. As a result, there is no medical evidence to contradict or rebut Dr. Stein’s calculation regarding the 15% preexisting disability.
Medical testimony may properly be the basis of the Board’s decision. In reaching its decision, the Board relied on Dr. Stein’s testimony. In fact, without the benefit of Dr. Stein’s testimony, the Board would undoubtedly have had difficulty determining whether Ward had suffered a functional preexisting impairment. Apparently, tire Board believed that Dr. Stein’s testimony was credible. In reviewing the evidence in light of the record as a whole, the Board’s finding was supported by substantial evidence. As a result, Ward’s cross-appeal lacks merit.
Did the Kansas Workers Compensation Board Err in Calculating Ward’s Permanent Partial Disability Award?
Based on the conclusion that Ward suffered from a 15% preexisting functional impairment, the hospital argues that the Board erred in calculating Ward’s permanent partial disability compensation award. Specifically, the hospital contends that this court “should find that the [Board] below erroneously interpreted and applied K.S.A. 44-501(c) and erred in refusing to use the calculation method utilized by the Court of Appeals in Payne [v. Boeing Co., 39 Kan. App. 2d 353, 180 P.3d 590 (2008).]” Ward disagrees, arguing that any reduction in her compensation award “should be calculated as the Board did herein, and not by the approach used in Payne.”
As mentioned previously, K.S.A. 2013 Supp. 44-556(a) directs that final orders of the Workers Compensation Board are subject to review under the KJRA. The standard of review varies depending upon the issue raised. See K.S.A. 2013 Supp. 77-621 (defining and limiting scope of review of administrative decisions under KJRA). This court’s appellate review of the hospital’s argument involves statutory interpretation. Previously, Kansas courts generally gave substantial deference to an administrative agency’s inter pretation of a statute that the agency administers, especially when the agency was one of special competence and experience. But our Supreme Court no longer extends deference to an agency’s statutory interpretation. Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (“In dealing with a statute in a workers compensation appeal, no deference is due the interpretation or construction given the statute by the ALJ or the Board.”); In re Tax Appeal of LaFarge Midwest, 293 Kan. 1039, 1044, 271 P.3d 732 (2012); 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, cases relying on the doctrine of operative construction should no longer be cited for issues involving statutoiy interpretation in administrative cases since appellate court review is now unlimited.
In this case, the hospital contends that the Board misinterpreted K.S.A. 44-501(c) when it calculated Ward’s permanent partial disability compensation award. The question of whether the formula used by the Board is correct must of course be determined by an ascertainment of the legislative intent as gathered from K.S.A. 44-501(c), which states: “The employee shall not be entitled to recover for the aggravation of a preexisting condition, except to the extent that the work-related injury causes increased disability. Any award of compensation shall be reduced by the amount of functional impairment determined to be preexisting.” In arriving at this intent, we will endeavor to apply the ordinary rules of statutory construction which we find unnecessary to repeat here.
For an award to be reduced by an amount of preexisting functional impairment, the current injury must constitute an aggravation of the preexisting condition. Lyons v. IBP, Inc., 33 Kan. App. 2d 369, 379, 102 P.3d 1169 (2004). Once it is established that the current injury is an aggravation of the preexisting injury, the respondent — in this case the hospital — has the burden of proving the amount of preexisting impairment to be deducted. Hanson v. Logan U.S.D. 326, 28 Kan. App. 2d 92, 96, 11 P.3d 1184 (2000), rev. denied 270 Kan. 898 (2001). This determination must be based upon the AMA Guides. K.S.A. 44-510e(a); Criswell v. U.S.D. No. 497, No. 104,517, 2011 WL 5526549, at *6 (Kan. App. 2011) (un published opinion), rev. denied 296 Kan. 1129 (2013). As discussed in tlie previous issue, substantial evidence supported the Boards’ finding that Ward had suffered from a preexisting functional impairment. Ward’s preexisting functional impairment was aggravated when she injured the same portion of her spine on April 22, 2010. Thus, we must decide whether the Board erred under K.S.A. 44-501(c) when it calculated Ward’s disability compensation award.
Our Supreme Court, particularly in the area of workers compensation, has declared that “an appellate court must give effect only to express statutory; language, rather than speculating what the law should or should not be, and that we will not add something to a statute not readily found in it.” Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 610, 214 P.3d 676 (2009). K.S.A. 44-501(c) directs that an award be reduced “by the amount of functional impairment determined to be preexisting.”
Below, a majority of the Board held that Ward’s “15 percent preexisting functional impairment should be subtracted from the overall 75.75 percent work disability.” The majority reasoned that if it reduced Ward’s compensation award by 15%, then “tire credit would reduce the total award by $33,988.60, approximately 44 percent.” The majority then reasoned that this appears to be “excessive based upon a 15 percent preexisting impairment.”
In arriving at its compensation award for Ward, the Board determined that she had sustained a 75.75% work disability. This would result in an award of $171,640.56 (415 weeks per K.S.A. 44-510e X 75.75% = 314.36 weeks X $546 - $171,640.56). The Board subtracted 15% from the 75.75% work disability to arrive at work disability of 60.75%. This would result in an award of $137,652.06 (415 weeks X 60.75% - 252.11 weeks X $546 = $137,652.06). By operation of K.S.A. 44-510f, the Board determined that Ward’s award would have to be reduced to the statutory maximum compensation cap of $100,000. Consequently, the Board determined that Ward was entitled to permanent partial disability compensation at the rate of $546 per week not to exceed $100,000 for a 60.75 % work disability ($100,000 -s- $546 = 183.15 weeks).
The Board determined that as of May 22, 2013, Ward was owed 160.86 weeks of permanent partial disability compensation at the rate of $546 per week for a total amount of $87,829.56, which was to be paid in one lump sum. The remaining balance of $12,170.44 was to be paid to Ward at the rate of $546 per week until fully paid. These two amounts total $100,000.
A dissenting Board member disagreed with the majority’s compensation award. According to tire dissenter, “[i]f no credit is taken on a maximum compensation case, like this one, the legislative mandate that the ‘award of compensation be reduced by the amount of functional impairment determined to be preexisting’ is not accomplished.” The dissenter believed that when Ward’s maximum compensation award of $100,000 was reduced by 15% she would be entitled to a compensation award of $85,000. The dissenter maintained that this method for computing the reduction of the preexisting functional impairment was “consistent with the [legislature’s] intent and complies with the plain language of K.S.A. 2009 Supp. 44-501(c).”
The dissenter’s interpretation of K.S.A. 44-501(c) seems sound. The key phrase under K.S.A. 44-501(c) is “[a]ny award of compensation shall be reduced.” (Emphasis added.) Inherent in that phrase is a requirement that a compensation award must be calculated before any reduction is made. The majority’s method of reducing Ward’s work disability percentage by the percentage of her preexisting functional impairment is not supported by the workers compensation statutes or caselaw.
As the dissenter correctly points out, the legislature’s intent is not reached under the majority’s award calculation. “Before 1993, the employer bore the risk of employing someone with a preexisting disability. See Demars v. Rickel Manufacturing Corporation, 223 Kan. 374, 376-77, 573 P.2d 1036 (1978). In 1993, K.S.A. 44-501(c) was amended. L. 1993, ch. 286, sec. 24. In general, the 1993 amendments were enacted to reduce the cost of workers compensation insurance premiums. See Dickens v. Pizza Co., 266 Kan. 1066, 1071, 974 P.2d 601 (1999). K.S.A. 44-501(c) was one aspect of that effort.” Payne, 39 Kan. App. 2d 359-60. The legislature’s intent is not achieved under the majority’s calculation of Ward’s compensation award because her compensation award is not re duced under its calculation; that is, Ward still would receive the statutory maximum compensation award of $100,000.
While a majority of the Board believes diat reducing Ward’s award of compensation by the percentage of her preexisting functional impairment is “excessive,” our Supreme Court has declared that “an appellate court must give effect only to express statutory language, rather than speculating what the law should or should not be, and that we will not add something to a statute not readily found in it.” Bergstrom, 289 Kan. at 610. Because the express language of K.S.A. 44-501(c) requires the award of compensation to be reduced by the amount of the preexisting functional impairment, the majority of the Board erred in its calculation.
Now we turn our attention to the hospital’s method for calculating Ward’s compensation award. We note that the hospital directs this court’s attention to Payne, 39 Kan. App. 2d 353. In Payne, this court affirmed the calculation of the claimant’s compensation award. The ALJ in Payne calculated claimant’s compensation award by determining the amount of weeks it would have taken her to reach the statutory maximum award for a permanent total disability. Based on the statutory maximum of $125,000, it would have taken claimant 299.76 weeks of payments at her average weekly rate of $417 before reaching the statutory maximum amount of $125,000. Payne’s medical evidence showed that she had suffered 35% impairment to her body as a whole because of her preexisting back condition and 10% increased impairment due to her later work-related aggravation.
Payne’s employer did not dispute that she was permanently and totally disabled but argued that her award should be reduced because of her preexisting 35% impairment under K.S.A. 44-501(c). The ALJ agreed with the employer and reduced Payne’s award accordingly. The ALJ determined that Payne would have been entitled to 145.25 weeks of compensation for her 35% preexisting impairment (415 weeks X 35% = 145.25 weeks). “Subtracting these 145.25 weeks from the 299.76 weeks of permanent total disability payments resulted in an award of 154.51- weeks, or $64,430.67, less amounts previously paid.” Payne, 39 Kan. App. 2d at 356. The ALJ’s calculation was affirmed by a majority of the Board.
In affirming the Board’s decision, the Payne court determined that Payne’s narrow reading of K.S.A. 44-510(c) and K.S.A. 44-510f(a), i.e., “that her disability award should continue for the duration of her disability up to the $125,000 cap on total benefits, ignores the overarching effect of K.S.A. 44-501(c) on her preexisting functional impairment.” Payne, 39 Kan. App. 2d at 357. In other words, Payne was not entitled to the statutory maximum because her compensation award had to be reduced by her 35% preexisting functional impairment. Although Payne involved a permanent total disability and the present appeal involves a permanent partial disability, the plain language of K.S.A. 44-501(c) does not distinguish between these two types of disabilities.
Thus, the hospital contends that the Payne formula should be adopted in calculating the K.S.A. 44-501(c) credit in this case. The hospital asserts that Ward’s compensation award should be calculated as follows:
“The [a]ppellant submits that the Board should have determined the value in terms of weeks of compensation of [Ward’s] preexisting impairment by converting 15% to 62.25 weeks (15% multiplied by 415 weeks per K.S.A. 44-510e) ....
. . [Then], tire value of the work disability is converted to a number of weeks of compensation by dividing $100,000.00 by [Ward’s] weekly compensation rate of $546.00. This results in a corresponding value of 183.15 weeks. The Board then should have subtracted the value of the preexisting impairment from the value of the work disability, which would leave 120.9 weeks of compensation. Accordingly, the Board should have found that, after applying tire 44-501(c) credit, [Ward] was entitled to an additional 120.9 weeks of compensation, or $66,011.40.”
The Board’s dissent, however, correctly pointed out that Payne’s formula for calculating the K.S.A. 44-501(c) credit in work disability cases can be inconsistent because the formula was “based upon a variety of factors, including the average weekly wage and percentage of work disability.” The Board’s dissent also noted that a problem arises when a claimant’s work disability exceeds the statutory maximum compensation cap. In this case, Ward’s work disability exceeded the statutory maximum compensation cap of $100,000.
Instead of applying the Payne formula for calculating the K.S.A. 44-501(c) credit, the Board’s dissent would have calculated Ward’s compensation award simply by subtracting 15% from the statutory maximum compensation award of $100,000. Under the dissenter’s interpretation, Ward’s compensation award would have been $85,000. There is abundant support for adopting the Board’s dissent in calculating the K.S.A. 44-501(c) credit in this work disability case. When computing the K.S.A. 44-501(c) credit using the 183.15 weeks rather than using the maximum weekly compensation rate of 415 weeks, as proposed in the hospital’s calculation, one would arrive at the same amount ($85,000) as did the Board’s dissent. For example, as stated in the hospital’s calculation, the 183.15 weeks represented the number of weeks it would have taken Ward to reach the statutory maximum compensation cap of $100,000 ($100,000 -5- $546 per week = 183.15 weeks). If the 183.15 weeks were reduced by the 15% preexisting functional impairment, a total of 155.68 weeks would remain (183.15 weeks X 15% = 27.47 weeks; 183.15 weeks - 27.47 weeks = 155.68 weeks). If the 155.68 weeks were multiplied by $546, the total amount would be $85,001. Except for a difference of $1, this is the same amount as arrived at by the Board’s dissent.
Moreover, the hospital’s use of the maximum 415 weeks in its calculation is somewhat skewed. Obviously, because of Ward’s 75.75% work disability and weekly compensation rate of $546, Ward is never going to receive weekly compensation of $546 for 415 weeks or, for that matter, 314.36 weeks (415 weeks X 75.75% = 314.36 weeks). Yet, the hospital uses the period of 415 weeks in determining the number of weeks (62.25 weeks) that should be subtracted from tire 183.15 weeks (which is tire number of weeks it will take Ward to reach the statutory cap of $100,000). It seems somewhat inconsistent to suggest on the one hand that Ward is limited to 183.15 weeks of compensation at the weekly rate of $546 and on the other that the maximum 415 weeks should be used rather than 183.15 weeks when determining the K.S.A. 44-501(c) credit. K.S.A. 44-510e(a)(l)-(3) does not support such an interpretation.
Thus, we feel that the Payne holding for calculating the K.S.A. 44-501(c) credit does not govern this case. We note that Payne was decided when the appellate courts gave deference to an agency’s interpretation of a statute and that the Payne court affirmed tire Board’s formula for calculating the K.S.A. 44-501(c) credit. After our Supreme Court holding in Bergstrom, 289 Kan. at 610, it became abundantly clear that appellate courts were to pay close attention to the exact language of tire workers compensation statutes. Moreover, as indicated in tire cases cited previously, our Supreme Court no longer extends deference to an agency’s statutory interpretation.
By clear and unmistakable language, our legislature has stated that an injured employee is entitled to recover for an aggravation of a preexisting condition when the work-related injury causes an increased disability. It then provides that “[«]ny award of compensation shall he reduced hy the amount of functional impairment determined to he preexisting.” (Emphasis added.) K.S.A. 44-501(c). Because Ward’s work disability exceeded the statutory maximum compensation cap of $100,000 and because Ward would have exhausted the statutory maximum compensation cap before reaching the statutoiy maximum of 415 weeks, we determine that the 15% preexisting functional impairment should have been applied against the $100,000 cap, thus, allowing a compensation award of $85,000.
For this reason, the formula of the Board’s dissent is in complete harmony with K.S.A. 44-501(c) to the effect that any award of compensation shall be reduced by the amount of functional impairment determined to be preexisting. Nevertheless, we feel that this formula should be applied in situations only when a claimant’s work disability value exceeds the statutoiy maximum compensation cap and when claimant will reach or attain the statutory maximum compensation cap before the statutory maximum number of weeks have been exhausted. This construction of K.S.A. 44-501(c) greatly simplifies its administration.
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Stegall, J.:
Breonna Wilkins was convicted of aggravated intimidation of a witness in violation of K.S.A. 2011 Supp. 21-5909. This is Wilkins’ direct appeal claiming: (1) the conviction was not supported by sufficient evidence; (2) the language of K.S.A. 2011 Supp. 21-5909 is unconstitutionally vague; and (3) a jury instruction error. Because we find that no reversible error occurred below, we affirm.
Facts
In July of 2011, Natalie Gibson was murdered and Lori Allison was shot outside of their home in Topeka, Kansas. Eventually, nine individuals were arrested and charged as codefendants in connection with these crimes. Most of the codefendants were either related to or well known by Wilkins. Among them were her boyfriend, Ronald Wakes, and another friend, juvenile F.W. Over the course of multiple legal proceedings, two of the codefendants— Bayate Covington and another juvenile, D.R. — accepted plea agreements with the State and began to provide testimony on behalf of the State concerning the events in question.
Wilkins and Wakes were recorded during numerous phone calls while Wakes was in custody. On August 28,2011, the two discussed the case against Wakes. Wilkins said, “I’m just worried about you know, what everybody else is saying.” Wakes replied, “Yeah, I’m saying if everybody keep their mouth shut, and can’t nobody prove nothing.” During a later conversation, Wilkins and Wakes discussed contacting one of the codefendants who had been placed in protective custody (Covington was being held in protective custody after agreeing to cooperate with the State). Wilkins, however, told Wakes, “Nobody knows where he’s at.” She said she was writing Covington a letter though, and Wakes said, “Good. Make him feel . . . miserable for lying.” Still later, Wilkins and Wakes discussed another codefendant, Jimmy Netherland, and Wakes asked Wilkins to come to the jail and talk to Netherland. Waites told Wilkins to “tell him to keep his . . . mouth shut.” Wilkins said she would look into it.
Wilkins never communicated directly with F.W. Wilkins did deliver messages via a third party to F.W. (nicknamed “Nookie”) while F.W. was in custody. Z.A., a juvenile known to Wilkins and in a dating relationship with F.W., spoke to F.W. on Wilkins’ behalf during another recorded jailhouse phone call. Z.A. told F.W., “[Wilkins] just asked about you like, do you know what Nookie’s doing? I was like yeah, she’s thinking about pleaing or whatever, and then she was like tell her not to because I’ve talked to like, uh, a couple different lawyers, and they’re saying all the DA is trying to do is get everybody to plea out because they don’t have enough evidence.” During a subsequent conversation, F.W. and Z.A. were discussing news reports that described various codefendants providing testimony on behalf of the State. Z.A. said, “[D.R.] testified. ... I guess [he] took the plea that everybody was offered . . . you didn’t take that shit did you?” F.W. replied that she had not taken any plea offer. F.W. then asked, “How do you know [D.R.] took that plea?” Z.A. replied, “ ‘Cause that’s what Breonna said.... And she was like please tell me Nookie didn’t take it.”
Z.A. also testified during Wilkins’ trial that Wilkins “asked me if [F.W.] had taken a deal, and I told her that she was thinking about taking one.” Wilkins then told Z.A. “to tell [F.W.] not to take a deal.” After Z.A. urged F.W. not to accept a plea offer from the State, F.W. did in fact reject a plea offer that would have allowed her to be prosecuted as a juvenile rather than an adult in exchange for her truthful testimony. She subsequently accepted a less favorable plea offer after being certified to stand trial as an adult. F.W. testified that she was motivated to reject the State’s favorable plea offer by Wilkins’ admonition which had been communicated to her through Z.A.
Wilkins was charged with and convicted of aggravated intimidation of a witness. She was given a suspended sentence of 18 months in prison and placed on 24 months’ probation. She timely appeals.
Analysis
Specifically, the State charged Wilkins with dissuading or attempting to dissuade F.W. from providing testimony with the intent to thwart or interfere with the orderly administration of justice in violation of K.S.A. 2011 Supp. 21-5909. Additionally, the State alleged two alternative aggravating factors, both of which were found by the jury. On appeal, Wilkins makes three claims of error: (1) that the evidence was insufficient to support the jury verdict; (2) that the statutory language “thwart or interfere in any manner with the orderly administration of justice” is unconstitutionally vague; and (3) that it was error for the jury not to be instructed on the meaning of that language.
Sufficiency of the Evidence
When reviewing a challenge to the sufficiency of the evidence in a criminal case our standard of review is well established. The appellate court must affirm die jury verdict if, “after reviewing all the evidence in a light most favorable to the prosecution, the appellate court is convinced a rational factfinder could have found die defendant guilty beyond a reasonable doubt. Appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations.” State v. Qualls, 297 Kan. 61, 66, 298 P.3d 311 (2013). To the extent our review requires us to interpret the language of K.S.A. 2011 Supp. 21-5909, our review is unlimited. State v. Arnett, 290 Kan. 41, 47, 223 P.3d 780 (2010).
After reviewing the entire record and considering the evidence in a light most favorable to the prosecution, it is apparent diat Ronald Wakes and his codefendants were stuck in a variant of the “prisoner’s dilemma.” This classic dilemma has been studied by theorists of strategy and negotiation for decades and has been described as follows:
“Two prisoners, unable to confer with one another, must decide whether to take the prosecutor’s offer: confess, inculpate the otírer, and serve a year in jail, or keep silent and serve five years. If die prisoners could make a (binding) bargain with each other, they would keep silent and both would go free. But they can’t communicate, and each fears that the other will talk. So both confess.” Page v. United States, 884 F.2d 300, 301 (7th Cir. 1989).
See also Schelling, The Strategy of Conflict 53-80, 119-61 (1960; 1980 rev.). By recruiting Wilkins to serve as an outside conduit of communication, Wakes hoped to side-step the prosecution and defeat the prisoner’s dilemma.
Wakes and Wilkins discussed urging multiple codefendants to keep quiet. Wilkins knew, however, that the united front of silence among her friends and relatives in jail was crumbling — the prosecution had successfully secured at least two highly publicized pleas resulting in testimony against the remaining codefendants. Further, Wilkins knew that another codefendant, F.W., had been offered a plea and was contemplating accepting it. In light of this knowledge, Wilkins (via Z.A.) successfully dissuaded F.W. from accepting the State’s plea offer and, hence, from providing testimony in the ongoing criminal proceedings.
Wilkins claims that the evidence only shows that she dissuaded F.W. from accepting a plea, not from providing testimony. We are not convinced. A rational factfinder could draw a reasonable inference from the totality of the evidence that Wilkins clearly understood that by dissuading F.W. from accepting a plea she was necessarily accomplishing her true objective — to keep F.W. from providing testimony against Wakes and the other codefendants.
Wilkins next argues that the evidence was insufficient to prove that her actions were undertaken with the intent to thwart or interfere with the orderly administration of justice. Again, her argument fails. In other contexts, the United States Supreme Court has recognized “society’s interest in giving the prosecution one complete opportunity to convict those who have violated its laws.” Arizona v. Washington, 434 U.S. 497, 509, 98 S. Ct. 824, 54 L. Ed.2d 717 (1978). This opportunity is intimately tied to notions of the orderly administration of justice. See, e.g., Lockhart v. Nelson, 488 U.S. 33, 48, 109 S. Ct. 285, 102 L. Ed. 265 (1988) (Marshall, J., dissenting) (describing the prosecution’s one complete opportunity to convict as embodying “society’s interest in the orderly administration of justice”); County of Los Alamos v. Tapia, 109 N.M. 736, 742, 760 P.2d 1017 (1990) (same).
Plea agreements that include provisions requiring the defendant to cooperate with the State and provide truthful testimony in ongoing related criminal matters are an integral and necessary tool of the prosecution. Our Supreme Court has recognized the
“propriety of plea discussions and plea agreements in cases when it exists. The interest of the public in effective administration of criminal justice will be served if proper guidelines are followed. A county attorney may in proper instances engage in plea discussions for the purpose of reaching a plea agreement. He should engage in such discussions with the defendant only through defense counsel, except when the defendant is not eligible for or does not desire appointment of counsel and has not retained counsel.” State v. Byrd, 203 Kan. 45, 51, 453 P.2d 22 (1969).
The Byrd court concluded that when safeguarded, “these discussions and agreements between an attorney for an accused and a prosecuting attorney are consistent with the fair and effective administration of justice.” 203 Kan. at 50.
A rational factfinder could have concluded from the evidence that Wilkins intended to interfere with this protected plea bargaining process, which itself was part and parcel of the State’s one complete opportunity to convict Wakes and the other codefen-dants, all of which furthered tire public’s interest in the orderly administration of justice in this case. Wilkins’ argument that this result jeopardizes a defense attorney’s or family member’s ability to provide advice to a defendant in the midst of plea negotiations is without merit. A rational factfinder could reach the conclusion from the evidence presented in this case that Wilkins’ intent was not to protect or further the interests of F.W. — a legitimate exercise that is not prohibited — but was rather to thwart the State’s case against Wakes and the other codefendants by silencing a potential witness.
Constitutionality
Wilkins next asserts that the phrase “thwart or interfere in any manner with the orderly administration of justice” in K.S.A. 2011 Supp. 21-5909 is unconstitutionally vague. Though Wilkins did not raise this issue below we will address it as it involves a pure question of law and its consideration will prevent any denial of Wilkins’ fundamental due process rights. See State v. Barnes, 293 Kan. 240, 255, 262 P.3d 297 (2011).
Determining a statute’s constitutionality is a question of law that is reviewed de novo. State v. McCaslin, 291 Kan. 697, 730, 245 P.3d 1030 (2011). Statutes are presumed to be constitutional; all doubts must be resolved in favor of validity, and if there is any reasonable way to construe a statute as constitutionally valid, the court has the authority and duty to do so. State v. Seward, 296 Kan. 979, 981, 297 P.3d 272 (2013).
The test to determine whether a criminal statute is so vague as to be unconstitutional entails two related inquiries: (1) whether the statute gives fair warning to those potentially subject to it, and (2) whether it adequately guards against arbitrary and unreasonable enforcement. City of Wichita v. Wallace, 246 Kan. 253, 259, 788 P.2d 270 (1990). “At its heart the test for vagueness is a commonsense determination of fundamental fairness.” State v. Kirby, 222 Kan. 1, 4, 563 P.2d 408 (1977).
Wilkins asserts without citation to authority that the phrase “thwart or interfere in any manner with the orderly administration of justice” is vague because, as she previously argued, it could theoretically be broad enough to catch clearly proper acts (such as advice from defense counsel) in its dragnet. We disagree.
When the plain meaning of the words are taken together, the statute is not so broad as to lead an ordinary person to conclude that it prohibits advice given in good faith with the best interests of the witness in mind. “Justice” is defined as the “fair and proper administration of laws.” Black’s Law Dictionary 942 (9th ed. 2009). Likewise, as discussed above, the orderly administration of justice has been understood to encompass tire State’s one complete opportunity to convict those who have violated its laws. “Thwart” is defined to mean “to run counter to so as to effectively oppose or baffle; contravene; to oppose successfully; defeat the hopes or aspirations of.” Webster’s Ninth New Collegiate Dictionary 1232 (1984). The word “interfere” is defined as “to interpose in a way that hinders or impedes.” Webster’s Ninth New Collegiate Dictionary 631 (1984).
Therefore, if the purpose of advice given to a witness is to hinder the State’s one complete opportunity to investigation or prosecute a claim, it is intimidation of a witness. If the advice is given in good faith based on what is perceived to be the best interests of the witness, it is not intimidation of a witness. The simple, ordinary definitions of the words in the statute are clear enough and not so vague as to leave ordinary people guessing as to whether they have subjected themselves to criminal liability.
Jury Instructions
Finally, Wilkins argues that the district court erred by denying her request for an instruction defining the phrase “thwart or interfere in any manner with the orderly administration of justice.” Whether the refusal to give the requested definitional instruction was error is a legal question subject to unlimited review. See State v. Plummer, 295 Kan. 156, 163, 283 P.3d 202 (2012).
“[Ojur appellate courts have repeatedly advised district judges to use PIK language, absent particular facts requiring modification.” State v. Dickson, 275 Kan. 683, 685, 69 P.3d 549 (2003). Not every difficult term requires definition as jurors are “expected to decipher many difficult phrases without receiving specific definitions.” State v. Robinson, 261 Kan. 865, 877, 934 P.2d 38 (1997). Moreover, when words or phrases are easily comprehended by individuals of common intelligence, they do not require a defining instruction. See State v. Roberts-Reid, 238 Kan. 788, 789, 714 P.2d 971 (1986). Finally, words only require definition when the instructions would otherwise mislead the jury or cause jurors to speculate. See State v. Phelps, 28 Kan. App. 2d 690, 695, 20 P.3d 731, rev. denied 271 Kan. 1041 (2001).
The district court used the standard PIK instructions for the crime alleged which instructs the jury that one of the elements that must be proved beyond a reasonable doubt is that the “act was done with the intent to thwart or interfere in any manner with the orderly administration of justice.” PIK Crim. 4th 59.060. The PIK instruction explicitly follows the language of the statute and, as discussed above, the language of the statute is neither vague nor ambiguous. The district court did not err when it declined to give an additional instruction defining the phrase “thwart or interfere in any manner with the orderly administration of justice” because jurors can be expected to understand its common meaning without resorting to speculation.
Affirmed.
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Malone, C.J.:
Donald D. Base, Jr., appeals foe denial of his workers compensation claim. Base alleged that his lower back was injured in a “series of events, repetitive use, cumulative traumas or microtraumas” as a maintenance worker at Raytheon Aircraft Company (Raytheon). The administrative law judge (ALJ) denied Base’s claim for payment of medical expenses he incurred for surgical treatment, finding that he failed to prove that he suffered personal injury in a series of accidents or that his back surgery was causally related to his work duties. Upon review, the Workers Com pensation Board (Board) affirmed the ALJ’s denial, finding that Base failed to prove that his initial injury arose out of and in the course of his employment or that the aggravation, acceleration, or intensification of his condition stemmed from his job. Base raises two arguments on appeal: (1) the Board erred in excluding Dr. Paul Stein’s medical testimony and report in violation of K.S.A. 2013 Supp. 77-621(c)(5); and (2) the Board erred in excluding Dr. John Estivo’s medical testimony in violation of K.S.A. 2013 Supp. 77-621(c)(5). For tire reasons set forth herein, we affirm the Board’s decision.
Factual and Procedural Background
Base’s workers compensation claim
Base began working in Raytheon’s maintenance department in 1974 at the age of 18. His job duties required him to perform many physical tasks, including moving office furniture, painting, ladder work, and removing 55-gallon drums of scrap material. After 37 years of employment, Base was laid off in March 2012 when Ray-theon closed its plant in Salina, Kansas.
In 2004, Base developed low back pain and bilateral leg pain, which was worse on the right side. He rated the pain at 5 or 6 on a scale of 1 to 10. Base sought treatment for his symptoms from his family physician, Dr. Mark Krehbiel, in October 2004. Dr. Krehbiel referred Base to Dr. William D. Kossow. Dr. Kossow ordered an EMG conduction study of Base’s lumbar spine, which was performed in October 2004, and an MRI study of Base’s lumbar spine, which was performed in November 2004. The latter test revealed a herniated and bulging disc with an annular tear in Base’s lower back. Base underwent physical therapy for his back and received chiropractic treatment intermittently beginning in 2004.
In January 2005, Base had a surgical consultation with Dr. Ali Manguoglu. He complained of low back pain radiating down both legs, worse on the right side. Base began receiving periodic epidural steroid injections to treat his back pain; he had five or six injections throughout 2005. Base had a second surgical consultation in late January 2005, this time with Dr. Theo Mellion. Dr. Mellion recommended a posterior interbody fusion and stabiliza tion surgery to treat Base’s low back problems. However, Base declined surgery, opting to continue receiving epidural steroid injections and taking pain medication prescribed by Dr. Krehbiel.
Base visited Dr. Krehbiel in August 2005, complaining of low back pain radiating down to his right buttock and right leg. He returned to Dr. Krehbiel in April 2006, this time reporting low back pain that radiated down both legs. Base said he was hardly able to get around or work and described himself as being miserable with pain. He said that he could not sleep, sit, or stand. He walked bent over and with a limp because of the pain present in his low back and bilateral lower extremities. Dr. Krehbiel ordered a second MR.I study of Base’s lumbar spine. He also recommended that Base seek a second opinion regarding treatment options, but he did not seek a second opinion. Base was back again in May 2006, reporting to Dr. Krehbiel that he had constant charley horse cramps in his buttocks and both legs. After receiving treatment from Dr. Manguoglu and Dr. Krehbiel, Base testified that his back improved in 2006. Throughout this entire period, Base continued working full-time at Raytheon without restrictions.
On January 11, 2007, Base was moving a filing cabinet onto a dolly as part of his maintenance duties when he felt something in his back “snap.” He reported the incident to his employer, and an internal medical report was prepared. Following the January 2007 incident, Base testified that his low back symptoms and his pain level increased significantly. Raytheon sent Base to Dr. Pat Do for examination and treatment recommendations. On March 30,2007, Base met with Dr. Do, complaining of low back pain and bilateral lower extremity pain. Base told Dr. Do about the January 2007 incident with the filing cabinet and his history of low back and bilateral radicular pain dating back to 2004. Base said that his current pain was similar to what he had previously experienced. After conducting a physical examination and a review of Base’s medical records, Dr. Do could not identify any change in the physical or anatomical structures of Base’s body as a direct result of the January 2007 incident. Pie diagnosed Base with low back pain and bilateral lower extremity radicular pain, right greater than left. Dr. Do concluded that Base “had just a temporary aggravation of a pre-existing condition.” Base continued to take pain medication and sought the same treatment from Dr. Krehbiel he had been receiving prior to January 2007.
Base filed a series of applications for hearing with the Division of Workers Compensation, alleging an injury to his back and “all other portions of the body affected” as a result of repetitive bending, twisting, and lifting during the performance of his job duties. In his initial application of July 20, 2007, Base alleged an accident date on or about January 11, 2007. On July 27, 2007, he amended the accident date to a series through January 17, 2007.
At the February 12, 2008, preliminary hearing, Base requested medical treatment for his lower back as recommended by Dr. Michael H. Munhall. Raytheon acknowledged the singular January 11,2007, incident involving the filing cabinet, but it denied a series through January 17, 2007. Base testified about his prior history of back pain but said that his condition “got better” during 2006. But he said that after the January 2007 incident, his back pain worsened. Base acknowledged that the treatment he was seeking was the same treatment he had been receiving prior to the J anuary 2007 incident. The ALJ entered an order appointing Dr. Paul Stein as a neutral physician to perform an independent medical examination (IME) of Base. The ALJ asked Dr. Stein to make a diagnosis and recommendations for treatment and address the issues of Base’s ability to work, temporary work restrictions, and medical causation — specifically, whether Base’s current complaints were causally related to tire January 2007 incident or performance of his work duties. The ALJ took Base’s request for medical treatment under advisement pending receipt of the IME report from Dr. Stein.
Dr. Stein examined Base on March 12, 2008. Base complained of pain in his lower back around the beltline and below, which radiated predominately into the right lower extremity. Dr. Stein was of tire opinion that Base “appearfed] to have sustained an aggravation of preexisting lumbar degenerative disk [sic] disease which has been symptomatic at least as recently as May of 2006 and possibly thereafter.” Dr. Stein added that it was difficult to know to what extent Base’s January 2007 incident at work repre sented a true aggravation or acceleration of the underlying pathology. “Assuming the accuracy of Mr. Base’s report of the work incident, it would represent at least a temporary aggravation but I do not know if any truly structural change has occurred.” Dr. Stein recommended x-rays of Base’s lumbar spine and advised that comparison of these new images with Base’s prior MRI images from April 2006 would be helpful.
On April 24, 2008, the ALJ authorized Dr. Stein to refer Base for the recommended MRI scan and requested that Dr. Stein thereafter supplement his recommendations for treatment. New MRI and x-ray studies of Base’s lumbar spine were performed on May 14, 2008. Dr. Stein compared them with Base’s MRI scans from November 15, 2004, and April 18, 2006. He issued a followup report, concluding: “I do not see progression of the disk [sic] protrusion at L4-L5 or progression of slippage at L5-S1 such as to document a significant recent aggravation of the preexisting pathology. Any recent aggravation should be considered temporary without definitive structural change.” Dr. Stein’s treatment recommendations included epidural steroid injections and physical therapy with intermittent lumbar traction. On July 1,2008, the ALJ entered an order finding that Base was entitled to conservative medical care.
On November 25, 2008, Base filed another application for preliminary hearing, again in regard to the series of accidents through January 17, 2007. Attached to the application was a November 24, 2008, letter written by Dr. Kossow. Dr. Kossow wrote that Base had completed a physical therapy program and had two lumbar epidural steroid injections. Dr. Kossow stated that Base had complied with the treatment suggested by the IME physician, but his symptoms had not improved. “His back pain is worse than it was 2 months ago. He continues to have radicular pain into both legs, right worse than left, and the right leg continues to have numbness and tingling.” Base’s physical examination was unchanged from his previous exams. Dr. Kossow recommended that Base consider surgical intervention and consult a neurosurgeon.
On December 14, 2010, the ALJ filed an order again appointing Dr. Stein to perform an IME of Base. Dr. Stein reexamined Base on January 31, 2011, and prepared a report dated February 11, 2011. He noted that Base complained of greater pain than he had during his prior examination, which he attributed to heavy work activity. Dr. Stein stated that Base’s report was “understandable as any individual with a bad back would likely have more pain with heavy activity.” However, Dr. Stein noted that multiple MRI scans had not shown evidence of a significant alteration in pathology. “Therefore, there is no evidence of a structural injury to lower back from activity on or after 1/17/07 as compared to before.” Dr. Stein recommended conservative management and possible surgical intervention, which were no different than the treatment recommendations prior to January 2007.
Following MRI and x-ray scans of Base’s lumbar spine performed in February 2011, Dr. Stein issued another IME report dated March 10, 2011. Dr. Stein stated that the latest diagnostic tests showed certain abnormalities. He concluded:
“This pathology is of longstanding [sic]. There is no evidence of structural alteration from work activity. With this type of pathology, especially being symptomatic previously, it is not uncommon that physical activity would increase the pain. This increase in the level of discomfort is not, however, a structural injury or an acceleration of the pathological process. The studies reviewed today do not alter the opinions noted in my report of 1/31/11. . .. [T]he need for surgery subsequent to January of 2007 is no different than it would have been prior to that time.”
Based on Dr. Stem’s 2011 IME reports, the ALJ entered a March 23, 2011, order denying Base’s preliminary hearing request for additional treatment. The ALJ found: “Claimant’s current conditions and need for surgery are the products of the natural progression of pre-existing degenerative disc disease, and are not attributable to the lifting incident of January 11, 2007 ... or work activity performed thereafter
From the January 2007 incident through May 5,2011, Base continued to work for Raytheon in the maintenance department. On May 6, 2011, Base underwent a posterior interbody fusion and stabilization surgery performed by Dr. Mellion. This was the same procedure that Dr. Mellion had recommended in 2005. The surgery was successful, and, after a period of healing, Base returned to full-duty work at Raytheon where he was employed until he was laid off in March 2012. In the time period immediately prior to his surgeiy, Base rated his pain at a 10 on a scale of 1 to 10. After surgeiy, Base rated his pain after a full day of work at 1 or 2. Base has been unemployed since being laid off from Raytheon and rated his current back pain at 0.
Base’s counsel’s violation of the ALJ’s no-contact order
Represented by new counsel, Scott J. Mann, Base filed another application for hearing on April 12, 2012, alleging a series of accidents through May 12,2011 — the date that Base believed he took off work to have surgeiy. He amended his accident one more time to a series through May 5, 2011, in order to correct that date.
The ALJ’s February 12, 2008, and December 14, 2010, orders appointing Dr. Stein as a neutral physician contained explicit language directed to counsel of record regarding communication:
“Counsel for Respondent is to contact Dr. Stein and arrange an appointment for Claimant’s IME and notify Claimant’s counsel of date and time. Counsel are to jointly submit all available medical records to Dr. Stein prior to his examination of Claimant. Other than scheduling of Claimant’s IME and the conveyance of medical records, there is to be no communication between counsel and Dr. Stein until after receipt of the IME report. If, upon receipt of the IME report, either counsel wishes to consult further with Dr. Stein, approval must first be obtained through a telephone conference call among counsel and the Court.”
Nevertheless, Mann wrote a letter to Dr. Stein with a handwritten date of April 13, 2012. The letter provided an extensive review of Base’s medical and employment history and then asked Dr. Stein to perform “a standard independent medical evaluation” and address a number of medical issues. Mann noted that he had amended the claimed date of accident from a specific event on January 17, 2007, to a series of injuries from work activities for all dates of his employment up to the day he took off for surgeiy.
The letter went on to discuss the definition of the term “accident” and added that an accidental injuiy results under the Kansas Workers Compensation Act (the Act) even where the accident only serves to aggravate a preexisting condition. Mann concluded:
“Thus, the issue is not whether Donald Base’s work activities, and/or the single event on January 7, 2007, caused a visible structural change to his low back condition? Radier, please provide your medical opinion as to whether, Donald Base’s work activities from January 12, 2007 to May 12, 2012, aggravated, intensified or accelerated his pre-existing lumbar spine condition, rendering the condition increasingly more symptomatic and painful, and ultimately tire need for medical treatment, to include surgical intervention?”
Dr. Stein examined Base a third time and submitted a “Reevaluation/IME” dated May 1, 2012. The report lists Mann as the referral source. Under the section “Summary and Conclusions,” Dr. Stein made the following assessment regarding Base’s claim:
“The referral letter from Mr. Mann for this evaluation indicates that ‘accidental injury is compensable under the Kansas Workers Compensation Act even where the accident only serves to aggravate a preexisting condition’. He further indicated that the term ‘accident’ includes ‘a series of event, repetitive use, cumulative trauma or micro traumas’ and further states that ‘it is not essential that a lesion or (structural) change be of such a character as to present external or visible signs of its existence’. There is evidence in the medical records as well as the nature of the patient’s work activity to indicate an aggravation and intensification of his preexisting condition by the work activity on 1/17/07 as well as subsequent activity. I cannot state that there was an acceleration of the degenerative process based upon the imaging studies but it is appropriate to state, within a reasonable degree of medical probability, that the work activity aggravated the lower back condition and increased the intensity of his symptomatology.”
On June 11, 2012, Raytheon filed a motion for relief due to violation of court order. Raytheon requested that the court quash and strike the May 1, 2012, report Base obtained from Dr. Stein “in contravention of the Court’s prior Orders in this case” and adopt Dr. Stein’s prior reports in their entirety without further deposition testimony.
On July 19, 2012, the ALJ conducted a hearing on Raydieon’s motion. The ALJ referenced its two previous orders designating Dr. Paul Stein as an IME physician and instructing counsel not to contact the physician without the court’s prior approval. Mann acknowledged that he “technically violated” the ALJ’s order but countered, “I’m not really sure I consulted with Dr. Stein about this case. I certainly have never met with him or spoke to him about it.”
On July 20, 2012, the ALJ ordered that neither Dr. Stein’s May 1, 2012, report nor his testimony would be considered by the court. The ALJ found that Mann’s violation of the IME orders warranted a response from the court:
“To allow violation of the court’s IME order without imposing any sanction would invite further and future violations and undermines the court’s efforts to obtain and rely upon independence [sic] medical examinations. Dr. Stein’s May 1, 2012 report will not be considered by the court. Dr. Stein’s testimony will not be considered by the court. Claimant may consult another expert to replace the excluded opinion of Dr. Stein.”
At Base’s regular hearing on November 9, 2012, counsel for Raytheon inquired whether Mann would be allowed to introduce Dr. Stein’s May 1, 2012, report through any other means. The ALJ stated that if a subsequent medical evaluation were to rely upon Dr. Stein’s May 1, 2012, opinion, then tire court’s order of exclusion would extend to any opinion based upon Mann’s improper contact with Dr. Stein.
The ALJ’s award and the Board’s order
On November 9, 2012, the ALJ conducted Base’s regular hearing. Base dismissed with prejudice his claim for the accident date of January 11, 2007; the court clarified that it would proceed to consider the alleged injury to Base’s low back caused by repetitive bending, twisting, and lifting in an “accident in a series through May 12, 2011.” Before Base called his first witness, counsel for Raytheon asked the court to clarify its ruling regarding “fruits of [the] poison[ous] tree” resulting from Base’s violation of the no-contact orders regarding Dr. Stein. The ALJ replied that if a subsequent medical evaluation were to rely upon Dr. Stein’s May 1, 2012, report, then it also would be excluded.
Base testified on his own behalf. Pie confirmed that from 2004 to 2011, his back pain waxed and waned but said that the January 2007 filing cabinet incident significantly increased his pain. Base said he did not have back surgery when it was first recommended in 2007 because he “just thought [he] could tiy and get better again.” But his symptoms did not improve after the incident; in fact, his symptoms grew continually worse up until 2011. In May 2011, Base’s symptoms were so severe that he decided he had no choice but to proceed with surgery. Dr. Mellion performed a fusion surgery. After 3 months of post-surgery recovery, Base resumed his joh in maintenance at Raytheon until the Salina plant shut down. He rated his back pain in May 2011 before his surgery at a 10. After recovering and returning to work, Base rated his back pain at a 1 or 2.
In addition to Base’s testimony, the record before the ALJ included Dr. Stem’s 2008 and 2011 IME reports, the deposition testimony of Dr. Do, and the deposition testimony of three additional physicians who examined Base and formed opinions regarding whether he sustained a work-related injury to his low back.
Dr. David Ebelke, an orthopedic surgeon who limits his practice to treatment of the spine, conducted a medical records review and physical examination of Base at Raytheon’s request. Dr. Ebelke noted in his report that the 2004 and 2006 MRI scans of Base’s lumbar spine confirmed central disc herniation at L4-L5, stenosis, and disc herniation at L5-S1 with an annular tear. He testified that stenosis is a condition that never heals or corrects itself; the symptoms can wax and wane, but the condition is still there. Dr. Ebelke said Base had preexisting spondylosis, spondylolisthesis, degenerative disc disease, bulging discs, and spinal stenosis and that these conditions necessitated surgeiy. Dr. Ebelke stated, “The general expectation, the natural histoiy, if you will, will be for them to be gradually, slowly but surely, get worse over time.” This progression can occur with or without heavy work activities.
Dr. Ebelke compared the 2011 MRI scan of Base’s lumbar spine with those obtained prior to the January 2007 incident; he saw long-term changes only. He testified that a person like Base, who has a long-term histoiy of symptoms from his degenerative back disease, would be expected to experience an increase in pain while performing physical activities. Dr. Ebelke opined that repetitive activities like bending, stooping, lifting, and twisting did not cause the condition or make it worse. Rather, they may have seemed to make Base’s symptoms worse because he was limited by his condition. Dr. Ebelke said that Base did not undergo any anatomical aggravation or physiological change as a result of his decision to keep working. He declined to assign a functional impairment rating for Base’s medical condition because his work was not the cause.
Dr. Edward Prostic, an orthopedic surgeon, also examined Base on March 16, 2012, and prepared an IME report at the request of Base’s attorney. Dr. Prostic acknowledged that Base suffered from aggravated preexisting spondylolisthesis and degenerative disc disease prior to January 2007 but opined that the January 2007 work incident permanently aggravated those conditions and made Base’s May 2011 surgery necessaiy. He stated that it was likely that repetitive work activities would have aggravated Base’s condition.
Dr. John Estivo, an orthopedic surgeon, also examined Base on August 9, 2012, and prepared an IME report at the request of Base’s attorney. Base reported to Dr. Estivo that his symptoms worsened because of the January 2007 work incident. Dr. Estivo diagnosed Base with status post L4-L5, L5-S1 fusion and was of the opinion that tire January 2007 incident and Base’s work activities thereafter aggravated his lumbar spine and increased his lumbar spine and leg pain. Base’s attorney provided Dr. Estivo with a copy of his April 13, 2012, letter addressed to Dr. Stein as well as Dr. Stein’s excluded May 1, 2012, “Reevaluation/IME” report. Dr. Estivo’s report contained an extensive discussion of both documents. He quoted at length from Dr. Stein’s repoxt and adopted the opinions expressed therein.
On April 4, 2013, the ALJ filed the award in Base’s workers compensation case. In addition to excluding Dr. Stein’s May 1, 2012, report and deposition testimony, the ALJ also excluded the deposition testimony of Dr. Estivo from the record:
“Claimant, although admitting violating the court’s no-contact order, and originally agreeing to sanctions, now chooses to further violate the court’s no-contact order, as well as the July 19, 2012 order suppressing the revised Stein report. Claimant used Dr. Stein’s revised report, as well as tire same letter that requested Dr. Stein to invade the province of the court, to persuade Dr. Estivo, and persuade him to invade the province of tire court. These efforts to ‘back-door’ Dr. Stein’s revised opinions into dre record before the court taint the opinions of Dr. Estivo, and render them less persuasive.
“The court will not consider the causation opinions of Dr. Stein produced by violating the court’s no-contact orders, and the court will not consider the causation opinions of Dr. Estivo, which have been tainted by the inappropriate contact with Dr. Stein, and which inappropriately attempt to ‘back-door’ into evidence Dr. Stein’s revised opinions.”
The ALJ further found that given the nonwork-related character of Base’s preexisting degenerative disc disease, its naturally progressive quality, and the absence of any lesion or change in the physical structure of his body attributable to his work duties through May 5,2011, Base had failed to sustain his burden of proof of having suffered a series of personal injuries. The ALJ also ruled that Base had failed to sustain his burden of proof of suffering a series of accidents or of an impairment of function as a result of an accident or performance of his work duties. An award was entered in favor of Raytheon.
On April 4, 2013, Base filed an application for review by the Board. The Board filed an order on August 27, 2013. First, the Board affirmed the ALJ’s exclusion of Dr. Stein’s May 1, 2012, report and deposition testimony from the record and of Dr. Es-tivo’s deposition testimony from the record:
“The 2012 contact with Dr. Stein, without the court’s permission, was a direct violation of the ALJ’s no-contact provision in the IME referral Order. The later attempt to depose Dr. Stein was, as noted by the ALJ, a ‘back-door’ attempt to place the Dr. Stein medical report of May 1, 2012, into evidence. Finally, the attempt to introduce the report through Dr. Estivo was equally tainted and inappropriate.”
The Board also affirmed the ALJ’s denial of benefits to Base, finding that he failed to prove that he suffered personal injury by an accident arising out of and in the course of his employment or that the aggravation, acceleration, or intensification of his condition stemmed from his job. Base timely filed a petition for judicial review.
Did the Board Err in Excluding the Evidence from Dr. Stein and Dr. Estivo?
Base contends that the Board erred in excluding from evidence Dr. Stein’s deposition testimony and May 1, 2012, report and Dr. Estivo’s deposition testimony, in violation of K.S.A. 2013 Supp. 77-621(c)(5). We will address these claims together. Base argues that by affirming the ALJ’s “blanket order” precluding him from presenting Dr. Stein’s testimony and report and Dr. Estivo’s testimony, the Board failed to allow him to be heard and present evi dence on his claim. As a result, Base asserts that the Board’s order was neither reasonable nor impartial as required by tire Act.
Raytheon responds that the Board did not act unreasonably, arbitrarily, or capriciously in excluding Dr. Stein’s deposition testimony and report and Dr. Estivo’s deposition testimony. Raytheon asserts that the Board properly sanctioned Base’s willful violation of the ALJ’s orders barring ex parte contact between counsel and the court-appointed neutral examining physician.
Standard of review
K.S.A. 2013 Supp. 44-556(a) directs that final orders of the Board are subject to review under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., as amended. This court’s review is limited to the grounds in K.S.A. 2013 Supp. 77-621(c). If the issue turns on an interpretation of a statute or another question of law, this court reviews anew without deference to the decision of the Board. Redd v. Kansas Truck Center, 291 Kan. 176, 187-88, 239 P.3d 66 (2010); Kansas Dept. of Revenue v. Powell, 290 Kan. 564, 567, 232 P.3d 856 (2010).
K.S.A. 2013 Supp. 77-621(c) defines and limits the scope of this court’s review of administrative decisions under the KJRA. The statute states in relevant part:
“(c) The court shall grant relief only if it determines any one or more of the following:
(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
(3) the agency has not decided an issue requiring resolution;
(4) the agency has erroneously interpreted or applied the law;
(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of tire record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
(8) the agency action is otherwise unreasonable, arbitrary or capricious.”
The parties disagree as to which ground for relief listed in K.S.A. 2013 Supp. 77-621(c) applies in the present case. Base argues that the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure. K.S.A. 2013 Supp. 77-621(c)(5). He contends that the Board failed to give him a reasonable opportunity to be heard, failed to allow him to present evidence, and failed to act reasonably without partiality — all requirements of the Act.
Base advocates for a bifurcated standard of review. On disputed issues of fact, he states that an appellate court must view the evidence in the light most favorable to the prevailing party and determine whether there is substantial evidence to support the factual findings of the Board. He asserts that whether there is substantial competent evidence in the record to support the Board’s ultimate legal conclusion is a question of law. See Helms v. Pendergast, 21 Kan. App. 2d 303, 309-10, 899 P.2d 501 (1995).
Raytheon challenges Base’s assertion that this appeal is governed by K.S.A. 2013 Supp. 77-621(c)(5). Raytheon asserts that K.S.A. 44-523(a), in stating that the ALJ and Board shall give the parties reasonable opportunity to be heard and to present evidence, does not impose any specific procedure for addressing violations of orders relating to court-appointed neutral physicians. Rather, Ray-theon asserts that the Board’s decision to exclude evidence falls under this court’s scope of review pursuant to K.S.A. 2013 Supp. 77-621(c)(8) — “the agency action is otherwise unreasonable, arbitrary or capricious.”
We agree with Raytheon’s characterization of the standard of review. Base is mischaracterizing the ALJ’s exclusion of evidence as an evidentiary ruling in order to invoke the broader standard of review corresponding with K.S.A. 2013 Supp. 77-621(c)(5). In fact, the ALJ’s decisión to exclude the evidence at issue was not based on a determination of its admissibility. Rather, the ALJ sanctioned Base’s attorney for his violation of the ALJ’s previous no-contact orders. The Board’s decision to affirm such a sanction is reviewed under K.S.A. 2013 Supp. 77-621(c)(8) — whether the action was unreasonable; arbitrary, or capricious.
The Board did not err in excluding the evidence
Base contends that the Board’s exclusion from evidence of Dr. Stein’s May 1, 2012, report and deposition testimony and Dr. Es-tivo’s deposition testimony violated the prescribed procedure under the Act. He asserts that the Board failed to allow him to be heard, to allow him to present evidence, and to act reasonably and without partiality. Base concludes that the Board’s order should be reversed and his claim should be remanded to the Board with instructions permitting him to present Dr. Stein’s evidentiary deposition and for a new adjudication .of his claim.
Raytheon responds that it was not unreasonable, arbitraiy, or capricious for the Board to affirm the ALJ’s order excluding tire evidence at issue. It contends that the ALJ’s order was fully justified as a sanction for Base’s counsel’s deliberate violations of no-contact orders relating to tire court-appointed neutral physician. Raytheon asserts that the ALJ’s decision was narrowly focused to address the specific misconduct in seeking to convert Dr. Stein from a neutral examiner to a retained expert without notice or authorization. Raydreon asks that this court deny Base’s request for remand and affirm the Board’s decision.
This court was faced with a similar factual scenario in Johnson v. Topeka Community Healthcare, No. 108,789,2013 WL 3331102 (Kan. App. 2013) (unpublished opinion). In that case, the ALJ ordered an independent examination of Johnson by Dr. Pratt. The ALJ ordered limited contacts by counsel with the doctor, stating:
“Claimant’s counsel shall make the appointment for tire examination at the physician’s earliest convenience. Additionally, claimant’s counsel shall prepare on non-letterhead stationary a letter of confirmation of the appointment made, and an itemization of the relevant medical reports and records to ,be reviewed by the examining physician. Any additional information or requests in the letter must be by agreement of tire partes, or by approval of the court. Ure letter shall be forwarded to the physician after both claimant’s counsel and respondent’s counsel have affixed their signatures. Any further contacts, tests, or referrals must be approved by the court. Counsel shall refrain from further contact with the physician without court approval, except to respond to additional information that the physician might request. (Emphasis added.)” 2013 WL 3331102, at °2.
Johnson complained to the ALJ that on January 3, 2011, “Sheila Wilson-Ufford of Coventry Health Care” contacted Dr. Pratt when she sent him a fax and therapy records regarding Johnson’s case. Apparently, Wilson-Ufford held the position of nurse with Coventry Health Care. Johnson argued that this contact was not approved by the ALJ and was in direct violation of the order. Johnson also alleged that Dr. Pratt was contacted by Wilson-Ufford a second time — again without approval and in violation of the ALJ’s order — when he issued a rating report to Wilson-Ufford in response to her request. On appeal to the Board, Johnson asserted that Wilson-Ufford’s improper contact with Dr. Pratt rendered the ALJ’s decision unreasonable, arbitrary, and capricious. The Board rejected Johnson’s contention.
On appeal, this court expressed doubt about whether the ALJ’s order was actually violated, noting that the order was directed to the counsel of record in the case and did not mention nurses. 2013 WL 3331102, at *2. This court stated that the burden of proving the invalidity of agency action is upon the party asserting invalidity. K.S.A. 2013 Supp. 77-621(a)(l). 2013 WL 3331102, at *3. This court found that Johnson had not explained or demonstrated how she was harmed — or how the appellees were benefitted — by Dr. Pratt’s contact with Wilson-Ufford. In fact, Johnson had not even explained who Wilson-Ufford was or how she was connected to the case. 2013 WL 3331102, at “3. Finally, this court noted that when specifically asked whether his opinion was influenced by the fact that a “nurse” from Coventry Health Care requested a rating of Johnson, Dr. Pratt responded “No.” 2013 WL 3331102, at *3. This court concluded that Johnson had not shown the Board’s decision was unreasonable, arbitrary, or capricious because it considered Dr. Pratt’s testimony. 2013 WL 3331102, at *3.
Here, Mann, wrote a four-page letter to Dr. Stein dated April 13, 2012. Mann’s ex-parte communication with Dr. Stein is easily distinguishable from the communication at issue in Johnson. The ALJ’s order in the present case was directed to counsel of record, and it was Base’s counsel of record that violated the order, not a third party with an unexplained connection to the case. Raytheon alleged prejudice in its motion for relief due to violation of the court order, explaining that Mann’s unauthorized contact “tainted Dr. Stein’s objectivity” and would force it to obtain another IME from another physician.
Furthermore, Mann’s contact with Dr. Stein clearly influenced Dr. Stein’s opinion. Dr. Stein’s first two IME’s conducted prior to his communication with Mann concluded that Base’s claimed injury was a temporary aggravation of a preexisting condition and would result in the denial of any benefits under the Act. However, Dr. Stein’s May 1, 2012, report — written at Mann’s request- — • stated that there was evidence to indicate an “aggravation and intensification” of Base’s preexisting condition. Dr. Stein assessed a 25% whole body impairment rating.
The ALJ’s orders appointing Dr. Stein to conduct IME’s contained several important safeguards meant to protect the rights of both parties as well as to ensure that the court received an objective assessment of Base’s condition: (1) counsel were to jointly submit all available medical records; (2) there was to be no communication between counsel and the physician until after receipt of the IME report; and (3) after receipt of the IME report, either counsel wishing to consult with the physician would first have to obtain approval in a conference call with the court and opposing counsel. To allow Base to submit into evidence Dr. Stein’s report and testimony, obtained in direct violation of the court’s previous orders, would be to reward his attorney’s bad behavior.
Fuzthermore, to allow die evidence would prejudice Raytheon, as Dr. Stein’s May 1, 2012, “Reevaluation/IME” was solicited by Base’s counsel without Raytheon’s knowledge, was based upon a medical history prepared solely by Base’s counsel, and relied upon legal definitions and issue statements drafted solely by Base’s counsel. Dr. Stein’s earlier IME reports prepared in- compliance with court orders would necessarily have to be reconciled with the additional opinions expressed in tire “Reevaluation/IME” improperly solicited by Base.
In marked contrast to the prejudice to Raytheon that would result if the disputed evidence were admitted, Base does not offer any explanation of how its exclusion has actually prejudiced him. Base repeatedly malees the conclusory statement that the Board failed to allow him to be heard, to allow him to present evidence, and to act reasonably and without partiality. However, Base never states how the ALJ’s decision to exclude the evidence at issue and the Board’s order affirming the ALJ’s decision harmed his claim. In fact, when ordering the exclusion of Dr. Stein’s May 1, 2012, report and his deposition testimony, the ALJ explicitly stated that Base was free to seek another opinion to develop exactly the same theory and opinion that Dr. Stein expressed so that Base would not be prejudiced. Base sought and received additional evaluations and reports from Dr. Prostic on August 7, 2012, and Dr. Estivo on January 18, 2013. In deposing Dr. Prostic and Dr. Estivo, Base’s counsel pursued the same theory — positing that Base’s daily work activities caused the aggravation of his preexisting lumbar spine condition — as he did in his letter to Dr. Stein.
Of course, Dr. Estivo’s deposition testimony also was ultimately excluded by tire ALJ, but again, this exclusion was attributable solely to yet another violation of the court’s instructions. Mann provided Dr. Estivo with copies of the letter he wrote to Dr. Stein and Dr. Stein’s excluded May 1, 2012, report. Mann did so despite an explicit warning from the ALJ at the start of Base’s regular hearing that if a subsequent medical evaluation were to rely upon Dr. Stein’s excluded report, then it, too, would be excluded.
Contrary to Base’s contentions, the Board did not act unreasonably, arbitrarily, or capriciously in excluding Dr. Stein’s May 1, 2012, report and deposition testimony and Dr. Estivo’s deposition testimony. The ALJ’s order of exclusion did not demonstrate a disregard of the relevant factual and legal circumstances bearing on the determination. Rather, the ALJ acted in an impartial manner with the stated objective of restoring each of the parties to the position they occupied before Base’s counsel violated the court’s no-contact orders. We conclude the Board did not err in excluding the evidence from Dr. Stein and Dr. Estivo.
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Schroeder, J.:
Floyd W. Pew and 66 other members of the Kansas Sexual Predator Treatment Program (collectively referred to as Residents) appeal the district court’s summary dismissal of their writ of habeas corpus challenging the program’s decision to restrict their right to purchase consumable items to only three vendors. Management of the Kansas Sexual Predator Treatment Program has failed to show its restricted vendor policy has a treatment or security-related basis. We therefore remand for the appointment of counsel and for further proceedings consistent with this opinion.
Facts
Petitions for Writ of Habeas Corpus
Originally, Pew and 96 named petitioners filed identical individual petitions for a writ of habeas corpus; these were consolidated into one case for resolution before the district court. Residents filed their habeas corpus petitions against the Kansas Secretaiy of Social and Rehabilitation Services and others involved in the management of the Kansas Sexual Predator Treatment Program (collectively referred to as SPTP).
On September 13, 2011, SPTP posted a memo involving purchases of consumable items through mail vendors, stating:
“Effective immediately, residents will only be allowed to receive consumables from three identified vendors: 1) Keefe 2) Walkenhorst and 3) J.L. Marcus. This means residents will not be allowed to receive any consumable items from family or any other vendors. Hygiene products will be considered consumable items. “Items from other vendors and/or family post-marked by 9/12/11 will be allowed. Items from other vendors or family dated 9/13/11 will be disallowed.”
The restriction went into effect immediately and denied receipt of any packages received from an unapproved vendor. Residents’ writ of habeas corpus aims to compel SPTP to “lift the unlawful restraint” of limiting Residents to receiving consumables from only three vendors.
In their petitions, Residents argue SPTP violated their right to receive items in the mail from “whomever or whatever business [they choose].” Residents acknowledge their mail privileges could be restricted but only if they were provided with written notice detailing the reasons for the restriction and a hearing regarding the restriction. Because no written document or hearing was provided showing a medical reason for tire restricted vendor policy, Residents argued SPTP violated K.S.A. 2013 Supp. 59-29a22(c). Additionally, Residents argue that the restriction violated their constitutional liberty interest granted by K.S.A. 2013 Supp. 59-29a22(b)(22) to spend money as they choose.
Issuance of Writ
The district court initially issued a writ of habeas corpus, requiring SPTP to file an answer within 45 days of February 15,2012. SPTP never filed an answer but instead chose to file a motion to dissolve the writ of habeas corpus.
Memorandum Decisions
The matter proceeded through the district court with various motions by Residents and responses by SPTP. The district court initially found Residents were entitled to relief on a statutory basis and should be granted a hearing. Ultimately, the district court reversed that decision without a hearing and found Residents were not entitled to relief as the consumables policy restriction did not represent a violation of their statutory or constitutional liberty to purchase consumable items.
Only 66 of the original 97 Residents remain parties to this appeal.
Analysis
Residents claim the restricted vendor policy violates their constitutional and statutory rights. On appeal, Residents raise eight claims, including SPTP violated their right to receive mail as provided by K.S.A. 2013 Supp. 59-29a22(b)(15), along with the right to spend their money as they choose guaranteed under K.S.A. 2013 Supp. 59-29a22(b)(22). Residents are correct the district court erred in summarily dismissing their petitions without requiring SPTP to provide a treatment or security-related reason for the new restricted vendor policy. Since we are reversing and remanding to the district court on this issue, we decline to address the remaining issues.
The District Court Erred in Summarily Dismissing Residents’ Claims
Residents are involuntaiy patients at the SPTP, and each retains his or her constitutional rights. See Johnson v. State, 289 Kan. 642, 650, 215 P.3d 575 (2009). However, the district court summarily dismissed Residents’ claims, ruling they failed to raise a substantive due process right and that Residents’ statutory claim was not properly before the district court under a K.S.A. 60-1501 petition. Even if a level of statutory process was required, the district court held that an appropriate level of process was given for the restricted vendor policy. Residents argue the district court erred in summarily dismissing their petition seeking relief from SPTP’s restricted vendor policy.
“ ‘Upon review of a district court’s order dismissing a petition for failure to state a claim upon which relief can be granted, appellate courts are required to accept the facts alleged by the plaintiff as true. The court must determine whether the alleged facts and all their inferences state a claim, not only on the theories which the plaintiff espouses, but on any possible theory. [Citation omitted.]’ Foy v. Taylor, 26 Kan. App. 2d 222, 223, 985 P.2d 1172, rev. denied 268 Kan. 886 (1999).” Hill v. Simmons, 33 Kan. App. 2d 318, 320, 101 P.3d 1286 (2004).
Standard of Review
To state a claim for relief in a petition for a writ of habeas corpus under K.S.A. 60-1501, a petition must allege “shocking and intolerable conduct or continuing mistreatment of a constitutional stature.” Johnson, 289 Kan. at 648. “[I]f, on the face of the petition, it can be established that petitioner is not entitled to relief, or if, from undisputed facts, or from incontrovertible facts, such as those recited in a court record, it appears, as a matter of law, no cause for granting a writ exists,” then summary dismissal is proper. 289 Kan. at 648-49; see K.S.A. 2013 Supp. 60-1503(a). “An appellate court reviews a summary dismissal de novo. [Citations omitted.]” Johnson, 289 Kan. at 649.
Restriction on Right to Receive Mail Must Be Treatment or Security Related
The right of Residents to receive items in the mail is governed by K.S.A. 2013 Supp. 59-29a22(b)(15)(B)(i)-(iii). Regarding their right to receive mail, Residents point to Merryfield v. Kansas Dept. of SRS, No. 102,384, 2009 WL 5206252, at *1 (Kan. App. 2009) (unpublished opinion), in which a panel of this court recognized that the right of residents of the SPTP to receive mail from outside sources could not be denied via a summary dismissal. The panel ruled K.S.A. 2013 Supp. 59-29a22(b)(15) provides a “limited right to receive property items through the mail.” If that right is denied, “[t]he denial must be for cause, notice of that cause must be provided to the resident, and the resident has the right to a hearing.” 2009 WL 5206252, at *3.
Residents also cite to Bailey v. Howard, No. 106,573, 2012 WL 1072816 (Kan. App. 2012) (unpublished opinion). In Bailey, a panel of this court held it could not dismiss a petitioner’s claim for failure to show “shocking and intolerable conduct” on its face after the petitioner alleged his room was searched and property was seized without notice, because a K.S.A. 60-1501 petition can only be dismissed if “incontrovertible facts establish that the petitioner is not entitled to relief.” 2012 WL 1072816, at *7. We recognize the factual pattern in Bailey is far removed from this case, but the concept of notice as discussed in Bailey is relevant.
SPTP responds it has a compelling governmental interest in the treatment of residents and has a duty to preserve “the safety and security of the facility, residents, and staff.” See Williams v. DesLauriers, 38 Kan. App. 2d 629, 638, 172 P.3d 42 (2007). To advance this interest, SPTP claims it has the authority to create policies, rules, and regulations relating to the treatment of residents and the court should defer to its professional judgment in determining what conditions and treatment methods are necessaiy to maintain safety and security. Levier v. State, 209 Kan. 442, 450-51, 497 P.2d 265 (1972).
Further, to maintain a procedural due process claim, SPTP states Residents must show they have been deprived of a consti- Rational life, liberty, or property interest. Murphy v. Nelson, 260 Kan. 589, 598, 921 P.2d 1225 (1996); Merrifield v. County Com'rs for County of Santa Fe, 654 F.3d 1073, 1078 (10th Cir. 2011). SPTP argues Residents fail to demonstrate the deprivation of such a right through their reliance on Merryfield, 2009 WL 5206252, and Bailey, 2012 WL 1072816.
SPTP claims Merryfield is distinguishable from the case at hand because the policy in Merryfield applied to a smaller subset of residents. Hei'e, the policy was applied to all residents, although the reasons for the restrictive policy were never explained. SPTP also distinguishes the case at hand from Bailey. In Bailey, the panel determined the resident had a protected property right in items taken from his room in a search and seizure. 2012 WL 1072816, at *6. SPTP argues Residents have no such protected liberty or property interest in the number of vendors they can use. The liberty or property interest issue is not die number of vendors they can use but how use of dieir property (money) to purchase consumable items is being denied without a treatment or security-related reason.
SPTP is correct in arguing Residents' right to mail is not absolute. K.S.A. 2013 Supp. 59-29a22(b)(15)(B)(i)-(iii). However, the plain language of K.S.A. 2013 Supp. 59-29a22(c) indicates “[a] patient’s rights guaranteed under subsections (b)(15) to (b)(21) may be denied for cause after review.” (Emphasis added.) Here, the right to receive mail has been denied without providing a treatment or security-related reason for creating the restricted vendor policy, and there has never been a review to establish cause to deny Residents their purchasing opportunities such as provided by K.S.A. 2013 Supp. 59-29a22(b)(22). SPTP, by restricting Residents’ number of possible vendors, has limited their right to receive items in the mail without a due process hearing pursuant to K.S.A. 2013 Supp. 59-29a22(c).
When considering the new policy, we recognize the Kansas Sexually Violent Predator Act. K.S.A. 59-29a01 et seq. grants SPTP administrators some discretion in adopting policies to operate, manage, and meet their statutory purpose. Given that statutory authority to manage the program, it is still limited by the constitutional rights of Residents.
“When a statute is attacked as violative of due process, the test is whether the legislative means selected has a real and substantial relation to the objective sought, This rule has been restated in terms of whether the regulation is reasonable in relation to its subject and is adopted in tire interest of the community.” Chiles v. State, 254 Kan. 888, Syl. ¶ 11, 869 P.2d 707 (1994).
SPTP argues that as long as it enacts a blanket policy that is applicable to all residents, no due process hearings are required. Here, SPTP cites no case involving the long-term, involuntary commitment of sexual offenders that recites such a rule. The constitutionality of Residents’ involuntary commitment is itself premised upon the requirement that the conditions of confinement generally be limited to those necessary for treatment. See Merryfield v. State, 44 Kan. App. 2d 817, 820-21, 241 P.3d 573 (2010). “[D]ue process commands that conditions and duration of confinement bear some reasonable relation to its civil purpose — treatment—without which incapacitation serves as mere preventive detention, ‘a warehousing operation for social misfits.’ ’’ Johnson, 289 Kan. at 655 (discussing Cross v. Harris, 418 F.2d 1095, 1107 [D.C. Cir. 1969]). Accordingly, this change in policy must show a treatment or security-related reason to modify the purchasing options of Residents with their statutory and constitutional rights to spend their money. The burden is on SPTP to show there is a treatment or security-related reason for the policy. However, with that in mind, SPTP has not shown a treatment or security-related basis for the implementation of the new policy that curtails Residents’ right to buy and use their money.
Under K.S.A. 2013 Supp. 59-29a22(c), SPTP can only deny the rights provided by K.S.A. 2013 Supp. 59-29a22(b)(15) to (b)(21) for cause or when the exercise of those rights would be detrimental to a resident’s medical or therapeutic treatment. Our court previously concluded in Merryfield that a resident’s claim that his right to receive mail could not be stopped without a due process hearing could not be summarily dismissed, and SPTP has not provided any valid basis to distinguish that case. See 2009 WL 5206252, at *2-3. K.S.A. 2013 Supp. 59-29a22(c) provides a limited due process right; the failure to provide that due process hearing constitutes a continuing violation of a constitutional stature. SPTP’s implementation of the new policy reflects an indifference to Residents’ statutory right to a due process hearing. Given our requirement to liberally construe pro se pleadings, Residents have established a cause of action. See State v. Kelly, 291 Kan. 563, 565, 244 P.3d 639 (2010).
Right to Spend Money
In its memorandum decision, the district court ruled Residents’ right to spend money as they choose could be denied for cause under K.S.A. 2013 Supp. 59-29a22(c). Residents argue this ruling was incorrect. The right of Residents to spend money as they choose is governed by K.S.A. 2013 Supp. 59-29a22(b)(22). K.S.A. 2013 Supp. 59-29a22(c) allows for Residents’ rights under K.S.A. 2013 Supp. 59-29a22(b)(15) to (b)(21) to be restricted for cause, or when medically or therapeutically contraindicated, upon notice and due process. Because the right to spend money is outside of the scope of K.S.A. 2013 Supp. 59-29a22(c), Residents argue the district court erred in interpreting tire statute.
When considering Residents’ right to spend money, SPTP has not shown a treatment or security-related reason to limit how or where Residents spend their money. The courts are not here to second-guess or control the daily treatment program for Residents, but the court also must protect Residents’ statutory and constitutional rights. We must balance the individual’s liberty interest against the government’s reason for restraining liberty. Youngberg v. Romeo, 457 U.S. 307, 320-21, 102 S. Ct. 2452, 73 L. Ed. 2d 28 (1982).
SPTP malees no specific arguments regarding Residents’ right to spend money as they choose, relying again on the claim that it may institute blanket policies at its own discretion, without the need to tie those policies in any way to the requirements of treatment or security. Without any specific argument by SPTP to the contraiy, we conclude the Fourteenth Amendment to the United States Constitution grants Residents a property interest in their money. See DesLauriers, 38 Kan. App. 2d at 637. Based' on the showing made in the present record by SPTP, that interest may not be denied without due process.
Conclusion
We recognize that a panel of this court has summarily affirmed district court orders concluding that another SPTP resident had no “private right of action” under K.S.A. 2013 Supp. 59-29a22. E.g., Merryfield v. Sullivan, No. 109,040, 2013 WL 4730597, at *1 (Kan. App. 2013) (unpublished opinion), petition for rev. filed September 23, 2013. That opinion does not directly discuss a SPTP resident’s right to a due process hearing under K.S.A. 2013 Supp. 59-29a22(c) through a writ of habeas corpus. As we have noted, that statute specifically provides for a due process review of the denial of a resident’s “rights guaranteed under subsections (b)(15) to (b)(21).”
The district court improperly granted the summary disposition of the habeas corpus petitions. SPTP must follow the statutory provisions, including their due process rights, under K.S.A. 2013 Supp. 59-29a22 when limiting Residents’ statutory and constitutional right to purchase consumable items and to spend money as they choose. We remand to the district court for proceedings to reconsider the petitions for writ of habeas corpus in accordance with this opinion and for tire district court to appoint counsel to represent Residents. Merryfield, 44 Kan. App. 2d 817, Syl. ¶ 3.
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Powell, J.:
According to the United States Supreme Court, with the exception of any prior conviction, the Sixth Amendment to the United States Constitution requires that “any fact that increases tire penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Wendy Huff argues in tire present appeal that the district court violated this directive when it imposed restitution without requiring the State to prove to a jury whether her actions caused the victim’s damages. Because restitution is neither a penalty nor an increase in a defendant’s maximum sentence, we hold Apprendi is inapplicable to restitution and, therefore, affirm the district court.
Factual and Procedural History
In January 2010, Ankit Patel, Vice President of Diamond Saline, LLC, a Howard Johnson Motel, hired Wendy Huff as a hotel manager. When Patel arrived at the hotel on December 15, 2010, the motel doors were locked and he discovered that Huff had moved out of her residence at the motel. Later that day, Patel discovered that Huff had transferred $19,745.10 from the corporation’s bank account to her personal bank account and had attempted to transfer an additional $8,407.90, but those transactions had failed to clear. Patel also learned there was $14,575.00 in cash missing and $2,224.31 worth of supplies missing.
Huff ultimately pled no contest in two cases. In the first, she pled to one count of felony theft pursuant to K.S.A. 21-3701(b)(2), a severity level 7 nonperson felony, and in the second, she pled to one count of giving a worthless check, a class A nonperson misdemeanor. See K.S.A. 21-3707. In exchange, the State dismissed a number of other charges. According to the language of the plea agreement, in the first case, Huff agreed that “restitution will be determined by hearing to be scheduled after sentencing is completed.” In the second case, Huff agreed to be “responsible for full restitution.”
On April 15, 2013, the district court imposed an underlying sentence of 12 months’ imprisonment but granted probation for a term of 24 months. The court also imposed restitution of $80 in the second case, as agreed by the parties, but noted that restitution in the first case would be decided on a later date. Huff subsequently filed a motion to bar restitution pursuant to Apprendi, arguing restitution would increase her maximum statutory sentence, thereby requiring restitution to be proven to a jury beyond a reasonable doubt. The State filed a response, arguing Apprendi was not applicable to restitution. The parties agreed to forego a hearing and submitted the issue of restitution to the district court on their written arguments. On October 7, 2013, the district court determined that Apprendi was not applicable and ordered Huff to pay $105,000 in restitution.
Huff timely appeals.
Does Apprendi Require the Jury to Make the Factual Determination that the Defendant’s Criminal Conduct Caused the Damages or Loss?
Huff argues the district court violated her constitutional right to a jury trial under Apprendi when it imposed restitution without requiring the State to prove to a jury that her actions caused $105,000 in damages or loss. Conversely, the State argues Huff s plea agreement bars her argument and Apprendi is inapplicable to restitution. Huff does not challenge the district court’s decision as to the amount of restitution to be paid.
Standard of review
Whether the district court violated Huff s constitutional rights by ordering restitution without a jury determination is a question of law over which we exercise unlimited review. See State v. Tyler, 286 Kan. 1087, 1095-96, 191 P.3d 306 (2008).
Analysis
At the time Huff was sentenced, she was placed on probation. Because a defendant is sentenced pursuant to the law in effect at the time the crime was committed, K.S.A. 21-4610(d)(1), which applied to restitution ordered as a condition of probation, governed the district court’s authority to order restitution. See State v. Williams, 291 Kan. 554, 559, 244 P.3d 667 (2010). K.S.A. 21-4610(d)(1) provided in pertinent part:
“[T]he court shall order the defendant to . . . [m]ake reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable.”
In her brief, Huff.correctly argues that the district court was required to make three factual findings in order to impose restitution: (1) the causal link between the defendant’s crime and the victim’s loss; (2) the amount of restitution; and (3) a determination of whether the restitution plan was unworkable. See State v. Goeller, 276 Kan. 578, 580-81, 77 P.3d 1272 (2003) (“ *[I]n Kansas, restitution for a victim’s damages or loss depends on the establishment of a causal link between the defendant’s unlawful conduct and the victim’s damages.’ ” [quoting State v. Hunziker, 274 Kan. 655, Syl. ¶ 9, 56 P.3d 202 (2002)]); see also State v. Hall, 298 Kan. 978, 986, 319 P.3d 506 (2014) (restitution amount can only be set by sentencing judge in open court with defendant present); Goeller, 276 Kan. at 583 (restitution required unless court finds it unworkable). Huff maintains that in light of Apprendi and the more recent case of Southern Union Co. v. United States, 567 U.S. -, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), the restitution statute unconstitutionally permits an increase in her maximum sentence by allowing the district court to make the necessary factual findings to impose restitution, which Huff argues is impermissible and violates her Sixth Amendment right to a jury trial because these factual findings must be proven beyond a reasonable doubt to a juiy.
The State responds with two lines of defense: First, because Huff agreed in her plea agreement to pay restitution in an amount to be determined at a later hearing, her challenge to the restitution order is barred; and second, relying principally on United States v. Day, 700 F.3d 713, 732 (4th Cir. 2012), cert. denied 133 S. Ct. 2038 (2013), because the restitution statute contains no prescribed maximum, Apprendi is inapplicable to restitution. Huff acknowledges that a similar argument to hers was rejected in Day but argues Day was wrongfully decided.
First, we easily reject the State’s argument that the plea agreement bars Huffs challenge to the restitution order. Plea agreements are contracts between the State and a defendant, see State v. Wills, 244 Kan. 62, 67-68, 765 P.2d 1114 (1988); therefore, the interpretation of such a contract is a legal question over which we exercise unlimited review. Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011). An ambiguous plea agreement must be strictly construed against the State. Wills, 244 Kan. at 69. A review of the language in the plea agreement reveals one agreement involving two cases. Only in the second case — the misdemeanor charge of giving of a worthless check — did Huff agree to be responsible for full restitution. In fact, at sentencing, the district court imposed the agreed-upon restitution amount of $80. Huff does not challenge this order.
However, in tire case to which Huff pled guilty to felony theft, the parties merely agreed that restitution would be determined at a hearing to be scheduled after sentencing. The plea agreement did not contain any language providing for Huff s agreement to pay restitution. While the plea agreement did contain Huffs waiver of her right to a juiy trial, we note the waiver language was in the context of the State’s requirement to prove each element of the crimes beyond a reasonable doubt. Viewing the plea agreement language strictly against the State, we conclude that Huff did not agree to restitution and is not barred from challenging it, though we note on appeal that she does not challenge the restitution amount of $105,000.
Second, when considering the merits of Huff s argument, we must reject them. Restitution, although part of a defendant’s sentence, is not punishment; even if restitution were considered punishment, it does not exceed the statutory maximum of a defendant’s sentence.
While it is undeniable that restitution is part of a defendant’s sentence, it does not mean restitution is punishment. See State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 (2011); State v. Hall, 45 Kan. App. 2d 290, 298, 247 P.3d 1050 (2011) (restitution not part of punishment or sanction for defendant’s conduct), aff'd 297 Kan. 709, 304 P.3d 677 (2013). In fact, a sentence does not contain only punishment or sanctions. See State v. Robinson, 281 Kan. 538, 543, 132 P.3d 934 (2006) (BIDS attorney fees imposed at sentencing not part of punishment or sanction for defendant’s criminal conduct but a “recoupment”). Our Supreme Court has found: “Restitution imposed as a condition of probation is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant to avoid serving an active sentence.” State v. Applegate, 266 Kan. 1072, 1075, 976 P.2d 936 (1999).
In Applegate, our Supreme Court addressed the question of whether a district court could refuse to impose restitution when the victims successfully obtained a civil judgment against the defendant and the defendant received a release of all claims from the victims. The court noted that while restitution was not merely victim compensation and had a deterrence and rehabilitative function, it discussed with approval the Arizona Supreme Court’s discussion of restitution as something distinguished from fines, which are punitive, and that which should not be imposed to “confer a windfall on the victim.” 266 Kan. at 1076 (citing State v. Iniguez, 169 Ariz. 533, 537, 821 P.2d 194 [1991]). While stating that district judges had discretion in imposing restitution, the Applegate court found that the restitution statute measured restitution as “the amount that reimburses the victim for the actual loss suffered.” 266 Kan. at 1079; see also State v. Davis, 48 Kan. App. 2d 573, 575, 294 P.3d 353 (2013) (“restitution should be provided only up to the amount of the victim’s loss” [citing Hunziker, 274 Kan. at 663-64]), aff'd on remand 50 Kan. App. 2d 725, 333 P.3d 190 (2014). Because both the victims and the defendant agreed that the sum paid by the defendant’s insurers satisfied all claims, our Supreme Court held the district court did not abuse its discretion in finding that the civil settlement satisfied the statutory requirements for restitution. Applegate, 266 Kan. at 1079-80.
Accordingly, in our view, because restitution ordered as a condition of probation is limited to the victim’s actual loss, it lacks a punitive element and therefore is not punishment. See People v. Wasbotten, 225 Cal. App. 4th 306, 309, 169 Cal. Rptr. 3d 878 (2014) (restitution not punishment); State v. Field, 328 Mont. 26, 32, 116 P.3d 813 (2005) (same); but see K.S.A. 2010 Supp. 21-4603d(b)(1) (restitution ordered as part of prison sentence “shall include, but not be limited to, damage or loss caused by the defendant’s crime”). Because the key language in Apprendi refers to the requirement that any fact which increases the maximum penalty for a crime be proven to a jury and because restitution is not a penalty, Huff s Sixth Amendment rights were not violated when the district court made factual findings to impose a restitution requirement upon her. See United States v. Wooten, 377 F.3d 1134, 1144-45 & n.1 (10th Cir.) (Apprendi does not apply to restitution order which does not exceed value of damaged property), cert denied 543 U.S. 993 (2004). Moreover, even if we were to agree that restitution constitutes punishment, we agree with the authorities cited by the State that the imposition of restitution does not increase a defendant’s maximum sentence.
Huff urges us to find the reasoning in Southern Union abrogates the holdings of many cases which have held Apprendi to be inapplicable to restitution. In Southern Union, the jury convicted the defendant corporation of knowingly storing hazardous waste without a permit in violation of federal law. The criminal violations were punishable by a fine of up to $50,000 for each day the defendant violated the law. However, the jury did not make specific factual findings as to the number of days the corporation violated the law. Instead, the trial court imposed an aggregate fine of $38.1 million and determined from the “ ‘content and context of the verdict all together’ that the jury found a 762-day violation” of the law. 132 S. Ct. at 2346. The United States Supreme Court held the trial court’s factual finding as to the number of days the defendant committed the crime violated Apprendi and the defendant’s Sixth Amendment right to a juiy determination because the criminal fines were a form of punishment. 132 S. Ct. at 2350-52.
Although Southern Union expanded Apprendi’s reach, not every punitive aspect of a sentence necessarily implicates Apprendi. See, e.g., Oregon v. Ice, 555 U.S. 160, 167-72, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009) (right to a jury trial does not prohibit judges from making factual findings to impose consecutive or concurrent sentences); State v. Carr, 274 Kan. 442, 451-52, 53 P.3d 843 (2002) (Apprendi does not prohibit judges from imposing dispositional departures from probation to prison); State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002) (use of criminal history to enhance defendant’s sentence does not violate Apprendi).
Unlike in Southern Union, where the defendant’s criminal sentence was increased beyond the maximum based upon factual findings made by the trial court, the common theme of the cases cited and relied upon by the State contain no Apprendi violations because there was no increase in the penalty beyond the statutory maximum. We think it significant that the United States Supreme Court, when discussing the history of a defendant’s right to be punished only in accordance with facts proved to a jury, stated: “We should be clear that nothing in this history suggests that it is impermissible for judges to exercise discretion — taking into consideration various factors relating both to offense and offender— in imposing a judgment within the range prescribed by statute.” Apprendi, 530 U.S. at 481; see also Alleyne v. United States, 570 U.S. -, 133 S. Ct. 2151, 2163, 186 L. Ed. 2d 314 (2013) (facts which increase mandatory minimum sentences must be submitted to the jury does not mean any fact that influences judicial discretion must be found by jury); Prickett v. State, 856 N.E.2d 1203, 1210 (Ind. 2006) (Apprendi, as followed by Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 [2004], inapplicable because restitution historically imposed by judges).
Consistent with this rationale, our Supreme Court in Carr, for example, held that a district court’s findings did not implicate Ap prendi because a departure from probation to prison did not increase the defendant’s sentence. Carr, 274 Kan. at 452. Similar reasoning was utilized by tire court in Day, the principal case relied upon by the State.
The Day court held there was no statutory maximum in the restitution context under federal law because tire court had the ability to order an indeterminate amount of restitution based upon the amount of damage and the injury caused by the offense, all of which vary from case to case:
“Prior to Southern Union, every circuit to consider whether Apprendi applies to restitution held that it did not. See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir. 2006) (’[L]ike all of the other circuits to consider this question, we conclude that [Apprendi does] not bar judges from finding the facts necessary to impose a restitution order.'). Day argues that we should bréale ranks with these prior decisions in light of Southern Union and apply Apprendi to restitution because it is ‘similar’ to a criminal fine.
“We decline to take Day’s suggested course. As an initial matter, we note that Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it. Instead, far from demanding a change in tack, the logic of Southern Union actually reinforces the correctness of the uniform rule adopted in the federal courts to date. That is, Southern Union makes clear that Apprendi requires a jury determination regarding any fact that ‘increases the penalty for a crime beyond the prescribed statutory maximum.’ [Citations omitted.] Thus, in Southern Union itself, the Apprendi issue was triggered by the fact that the district court imposed a fine in excess of the statutory maximum that applied in that case. [Citation omitted.]
“Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on tire amount of damage and injury caused by the offense. [Citation omitted.] As a consequence, the rule of Apprendi is simply not implicated to begin with by a trial court’s entry of restitution." Day, 700 F.3d at 732.
Accord United States v. Green, 722 F.3d 1146, 1150-51 (9th Cir. 2013) (Apprendi inapplicable to restitution); United States v. Wolfe, 701 F.3d 1206, 1215-18 (7th Cir. 2012) (same), cert. denied 133 S. Ct. 2797 (2013); United States v. Milkiewicz, 470 F.3d 390, 402-04 (1st Cir. 2006) (same); United States v. Reifler, 446 F.3d 65, 114, 118-20 (2d Cir. 2006) (same); Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006) (same); United States v. Leahy, 438 F.3d 328, 336-38 (3d Cir. 2006) (same); United States v. Garza, 429 F.3d 165, 170 (5th Cir. 2005) (same); United States v. Sosebee, 419 F.3d 451, 454, 461-62 (6th Cir.) (same), cert. denied 546 U.S. 1082 (2005); United States v. Carruth, 418 F.3d 900, 902-04 (8th Cir. 2005) (same); Wooten, 377 F.3d at 1144-45 & n.1 (same); United States v. Rattler, 139 Fed. Appx. 534, 536 (4th Cir. 2005) (unpublished opinion) (same). Moreover, as the First Circuit of Appeals observed:
“For restitution, however, the jury’s finding of guilt leads to only one outcome; in every case in which such punishment is imposed, ‘the jury’s verdict automatically triggers restitution in the “full amount of each victim’s losses.’ ” [Citation omitted.] Post-conviction judicial fact-finding to determine that amount ‘by no means impostes] a punishment beyond that authorized by jury-found or admitted facts,’ or ‘beyond the “statutory maximum” as that term has evolved in the Supreme Court’s Sixth Amendment jurisprudence.’ [Citations omitted.]” Milkiewicz, 470 F.3d at 404.
Because restitution to tire victim in the amount of the victim’s losses is required upon a guilty verdict under the federal restitution statute and because there is no prescribed statutory maximum for restitution, restitution is not subject to Apprendi. See Wolfe, 701 F.3d at 1216-18 (Because there is no statutory maximum for restitution, the Sixth Amendment right to a jury trial does not apply to restitution.).
The same is true for Kansas’ restitution statute. In every case, the victim is entitled to restitution based upon the victim’s damages to the extent the offense caused such damages, all of which vary from case to case. Unless a plan of restitution is unworkable, there are generally no limits as to what such restitution amounts can be, so Apprendi is not implicated. See also People v. Smith, 181 P.3d 324, 326-27 (Colo. App. 2007) (statute does not prescribe maximum restitution amount so Apprendi inapplicable); Smith v. State, 990 N.E.2d 517, 521-22 (Ind. App. 2013) (same); Commonwealth v. Denehy, 466 Mass. 723, 736-38, 2 N.E.3d 161 (2014) (same); State v. Maxwell, 802 N.W.2d 849, 851-52 (Minn. App. 2011) (same); State v. Clapper, 273 Neb. 750, 732 N.W.2d 657 (2007) (same); State v. Martinez, 392 N.J. Super. 307, 315-18, 920 A.2d 715 (2007) (same); State v. Webster, 220 Or. App. 531, 534-35, 188 P.3d 329 (2008) (same); State v. Kinneman, 155 Wash. 2d 272, 280-82, 119 P.3d 350 (2005) (same).
Huff tries to avoid this result by distinguishing the cases that reach this conclusion and arguing it is not determining the amount of restitution that is at issue but the factual findings establishing the causal link between the offense and the victim’s damages. We think this is a distinction without a difference. The key here is that restitution is required in every case upon a finding of guilt, and there is no statutory maximum to restitution that could increase the maximum statutory penalty. Apprendi requires nothing more. The district court did not violate Huff s Sixth Amendment rights by ordering her to pay restitution.
The district court’s restitution order is affirmed. | [
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Hill, J.:
In this case we must decide if there is sufficient evidence to support the district court’s finding that a 5-month-old girl, A.H., was a child in need of care as defined by law. The public policy of this state is found in K.S.A. 2013 Supp. 38-2202(d)(11), which states that the definition of a child in need'of care includes a child who “has been residing in the same residence with a sibling . . . who has been physically, mentally or emotionally abused or neglected, or sexually abused.”
Because the district court found this girl’s brother, W.H., to be a child in need of care for witnessing domestic abuse and this finding is undisputed by the father, and W.H. and his sister have been living in the same home, we hold the district court properly found A.H. to be a child in need of care. We affirm the decision.
Background
Out of concern that A.H.’s father and mother were not adequately providing for the protection of their 5-month-old daughter due, in part, to A.H.’s continued exposure to the alleged domestic violence between her parents, the State filed a child in need of care petition in April 2013. A.H.’s brother, W.H., also lived in the home. He was not quite 2 years old at the time of the filing of the petition. A.H. also had two other siblings, ages 9 (V.H.) and 8 (T.H.). When the petition was filed, the district court held a temporary custody hearing for A.H. and W.H. The court placed A.H. and W.H. in the custody of the Secretary of the Kansas Department for Children and Families and ordered both children to be placed with Mother. Father was not to have any contact with Mother except through their attorneys, and he was to have no contact, either direct or indirect, with any of his four children.
At the evidentiary hearing on the petition, the State presented testimony from Mother and Lisa Knight, a case manager employed by Kaw Valley Behavioral Center who began working with the family in May 2013. Mother acknowledged that she did not contest the allegations in the State’s petition. However, she then testified that she had never told anyone that Father had physically abused her or that she was scared of him. She stated that Father had never hit her, threatened to put her in a body bag, or cursed in front of the children.
When questioned by the guardian ad litem, Mother admitted she had told a Kaw Valley Center worker in March 2013 that Father had hit .her on top of her head so it would not leave a bruise. She then acknowledged that her son, W.H., also hits her on top of her head. Mother also acknowledged that she and Father “have been verbally not nice to each other.”
Case Manager Knight testified about her conversations with Mother regarding the nature of her relationship with Father. When asked whether Father had threatened Mother, Knight replied:
“[Mother] actually said to me that [Father] said that he would not let her leave except through a body bag and that when she had tried to leave a few times before whenever arguments got really heated to the point where there was exchange of words and almost to the point of violence that he would block the doorway and not allow her to leave.”
Knight also testified that Mother reported that Father had made other life-threatening statements to her. When acknowledging that W.H. was exhibiting violent behavior, Knight stated that during a supervised visit she saw him punch Mother “extremely hard in the face two times in a row.” When Knight spoke to her about the punching, Mother admitted, “She believed [W.H.] had learned that from watching [Father] punch her.” Knight also disputed Mother’s testimony that there was no domestic violence between Mother and Father. She also testified that she had concerns for A.H.’s safety while residing with Modier and Father.
In his response to this evidence, Father presented the testimony of one of his girlfriends, who is the mother of his two older children. She testified that she was never physically or emotionally abused by Father. She then stated that she had lied to the guardian ad litem in this case when she had told him that “[Father] had hit me in my head repeatedly, that he had called me all sorts of violent names.”
The judge was not convinced by the evidence presented by Father. The district court found A.H. and the three other children were all children in need of care. The district court ordered Mother to continue with the last 2 months of her existing 6-month reintegration plan with Kaw Valley Behavioral Center. The court ordered Father to begin a new 6-month reintegration plan and or dered that the no-contact order to continue at the discretion of the officials at Kaw Valley Center.
Father appeals the adjudication of A.H. as a child in need of care, arguing that there is no clear and convincing evidence that she is a child in need of care.
How we will proceed.
The law is well settled — the State must prove by clear and convincing evidence that A.H. is a child in need of care. See K.S.A. 2013 Supp. 38-2250. The Kansas Supreme Court has clarified our role:
“[W]hen an appellate court reviews a trial court’s determination that a child is in need of care, it should consider whether, after review of all die evidence, viewed in the light most favorable to the State, it is convinced that a rational factfinder could have found it highly probable, i.e., by clear and convincing evidence.” In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
In making this determination, an appellate court does not weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact. 286 Kan. at 705. Moreover, to tire extent our review requires us to interpret the provisions of K.S.A. 2013 Supp. 38-2202(d)(3), which is a question of law, we have unlimited review. See Jeanes v. Bank of America, 296 Kan. 870, 873, 295 P.3d 1045 (2013).
The statutory definition of “child in need of care” is found in K.S.A. 2013 Supp. 38-2202(d). The State cites K.S.A. 2013 Supp. 38-2202(d)(3), which defines a child in need of care as one who “has been physically, mentally or emotionally abused or neglected or sexually abused.” We note importantly here that K.S.A. 2013 Supp. 38-2202(d)(11) adds to the list of children in need of care tiróse children who have “been residing in the same residence with a sibling . . . who has been physically, mentally or emotionally abused or neglected, or sexually abused.”
The legislature has made it clear that the Revised Kansas Code For Care of Children shall be liberally construed to carry out the policies of the State which are to consider the safety and welfare of a child to be paramount in all proceedings under the code; make the ongoing physical, mental, and emotional needs of the child decisive considerations in all proceedings under the code; and, provide for the protection of children who have been subject to physical, mental, or emotional abuse or neglect. See K.S.A. 2013 Supp. 38-2201(b)(1),(3),(7).
There toas scant evidence offered about A.H.
Because she was a babe in arms and had no visible bruising, not much was said about this 5-month-old girl at the hearing — but in contrast, there was plenty of evidence concerning domestic violence in her home. The State generally alleged A.H. was a child in need of care because she (1) was without adequate parental care, control, or subsistence and the condition was not due solely to the lack of financial means of the child’s parents or other custodian; (2) was without the care or control necessary for the child’s physical, mental, or emotional health according to K.S.A. 2013 Supp. 38-2202(d)(2); and (3) had been physically, mentally, or emotionally abused or neglected or sexually abused according to K.S.A. 2013 Supp. 38-2202(d)(3).
The State’s petition specifically alleged officers had investigated whether Father physically abused V.H. and T.H. in October 2010 and the existence of a prior history of the family’s involvement with the Department. That histoiy included a July 2010 report of Father physically abusing T.H. and an October 2012 report indicating a lack of parental supervision of T.H., V.H., and W.H. The October report expressed, inter alia, concerns regarding the children’s access to illegal drugs and exposure to domestic violence. That same month, the Department received additional concerns regarding Father’s drug use and bruising on Mother, possibly caused by Father. The petition also alleged reports by school employees to the Department expressing concerns about the health and hygiene of die children as well as domestic violence and drug use in the household. In addition, a March 2013 report expressed concern W.H. and A.H. were witnessing domestic violence, with W.H. imitating such violence on Mother when frustrated or angry, and swearing at her when told not to do something.
The district court, after pointing out Knight’s testimony and finding Mother’s denial of any physical abuse not credible, found that the children suffered emotional abuse as defined under K.S.A. 2013 Supp. 38-2202(d)(3). The district court stated that it believed “by more than clear and convincing [evidence] that [A.H., W.H., V.H., and T.H.] have been in at the very minimum a chaotic and abusive — emotionally abusive situation and that tire children are in need of care as it relates to [Father].” The journal entry, referring to separate case numbers for each of the four children, states:
“The Court finds from the evidence presented that all the children, including [A.H.], have been exposed to domestic violence in the home, and therefore meet the definition of a child who has been emotionally abused. The Court therefore adjudicates [A.H.] to be a child in need of care as that term is defined by K.S.A. 38-2202(d)(3). The Court specifically finds that all four children have witnessed or been exposed to the domestic violence in the home, and also meet tire definition of child in need of care as that term is defined by K.S.A. 38-2202(d)(3).”
Perhaps the most telling evidence was the report of W.H. hitting Mother as Father hit Mother. W.H. clearly met the definition of being emotionally abused under K.S.A. 2013 Supp. 38-2202(d)(3). Thus, the district court’s finding diat A.H. is a child in need of care is supported by K.S.A. 2013 Supp. 38-2202(d)(11). Because the district court correctly found W.H. to be a child in need of care and nobody disputes that A.H. and W.H. both live in the same residence, the district court, instead of relying on K.S.A. 2013 Supp. 38-2202(d)(3), could have declared A.H. a child in need of care under K.S.A. 2013 Supp. 38-2202(d)(11).
Essentially, Father is arguing that there is no connection between the evidence of domestic violence and A.H., other than living in the same house. But Father ignores Mother’s stipulation that A.H. witnessed the domestic violence. This supports a finding of emotional harm under K.S.A. 2013 Supp. 38-2202(d)(3). We need not speculate about A.H. further on this point other than recognizing that another panel of this court affirmed the termination of parental rights, in part because Mother was completely unable or unwilling to address the harm caused to her children witnessing the domestic violence in the house. See In re T.J.C.-R., 106,848, 2012 WL 1759828, at *4 (Kan. App. 2012) (unpublished opinion).
Concerns about children residing in abusive homes are not new. Children are rarely reared in isolation. They have brothers and sisters. Our court lias held: “If the trial court observes abuse of one child, the judge should not be forced to refrain from taking action until the next child suffers injury. [Citations omitted.]” In re A.B., 12 Kan. App. 2d 391, 392, 746 P.2d 96 (1987). Young bodies cannot withstand many savage blows; young psyches, even fewer.
Here, the testimony at the evidentiary hearing, when viewed in the light most favorable to the State, unmistakably indicates W.H. contemporaneously observed domestic violence between Father and Mother and suffered emotional harm by being placed in a position of physical danger. This harm is manifested in behavioral problems acting out or mimicking Father s violent behavior. Because there was clear and convincing evidence the district court properly adjudicated A.H.’s brother as a child in need of care, it was appropriate for the district court to malee the same child in need of care finding for A.H. and the two other siblings. See In re R.B.S., 29 Kan. App. 2d 1023, 1029, 36 P.3d 300 (2001). In R.B.S., our court held that exposing the older sibling to the parent’s violent relationship and their failure to feed or clothe the child properly is physically and emotionally abusive behavior justifying a child in need of care adjudication for a younger sibling.
This holding upholds the policy established by the legislature to liberally construe the Revised Kansas Code for Care of Children in order to protect children.
Affirmed. | [
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Leben, J.:
The Kansas implied-consent law provides that a driver’s license may be suspended for a failure to take a blood or breath test for alcohol when a law-enforcement officer has reasonable grounds to believe the person was driving while intoxicated. But the law also provides hearings that meet constitutional due-process requirements by allowing both an administrative heating before a Kansas Department of Revenue hearing officer and, if unsuccessful there, a new trial before the district court.
The Department of Revenue appeals the district court’s order setting aside the administrative suspension of Israel Manzano’s driver’s license. The district court found that the administrative hearing provided to Manzano had been a sham, thus violating his right to a fair and impartial hearing. The Department has appealed, contending that there was no due-process violation since Man-zano’s license has remained in effect on a temporaiy basis while his appeal has been pending in the courts.
But we agree with the district court that Manzano’s administrative hearing did not provide a meaningful opportunity to present evidence, to explore the issues, or to identify the issues that would be subject to a de novo trial in the district court. Under these circumstances, Manzano’s due-process rights were violated, and the district court entered an appropriate remedy in light of that violation. We therefore affirm the district court’s judgment.
Factual and Procedural Background
On September 30, 2011, Kansas Department of Revenue Administrative Hearing Officer Kent Collins affirmed the agency’s suspension of Manzano’s driver’s license. Manzano was stopped while operating a motor vehicle in Garden City, Kansas, on November 28, 2010. Police Officer David Wheet initiated the traffic stop. Officer Wheet testified at the administrative hearing that he initiated the stop after observing the vehicle accelerate rapidly from a stop sign, squealing the tires. Officer Wheet called Police Officer Oscar Flores to foe scene of the stop because Officer Flores was part of the DUI saturation patrol that night.
Manzano was arrested and charged with a DUI in violation of K.S.A. 2010 Supp. 8-1567. After being given foe required implied-consent advisories, Manzano refused to submit to testing intended to determine foe presence of alcohol or drugs in his body. Officers Flores and Wheet filled out the Officer’s Certification and Notice of Suspension form (DC-27) and gave it to Manzano at 3:50 a.m.
Manzano requested an in-person administrative hearing, which was held September 30, 2011, before Administrative Hearing Officer Collins. Manzano and Officers Flores and Wheet were present to testify at the hearing. Counsel began questioning Officer Wheet regarding his investigative report. After a few preliminary questions about when and where Officer Wheet wrote his report, Collins interrupted saying, “Let’s move on. If there’s an issue with the report get to it.” Counsel continued by questioning Wheet about where he and his car were located in relation to where Man-zano was driving. After seven more questions from counsel, Collins again interrupted, “Get to the stop. This is taking way too long.”
After another seven short questions (e.g., “How far back?”; “Were your windows up?”), Collins said, “Let’s get to the actual stop itself.” Counsel asked Wheet why he began following Man-zano. Wheet said that Manzano had “accelerate[d] rapidly” from a stop sign, “squealing the tires.” Counsel then asked whether the officer’s windows were down (“No”) and followed up by asking what die speed limit was at that location.
Collins again interrupted and ruled that Manzano’s attorney could not ask any further questions about how and why the officer conducted a traffic stop: “According to the Martin case [Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 176 P.3d 938 (2008)], that’s as far as we’re going to go with that. Move on to his contact with your client.” Counsel continued by asking Officer Wheet how far he had followed Manzano’s vehicle and if he observed anydiing else. Collins told the attorney to move on: “Let’s go to his contact with your client. . . . Client’s parked in the driveway, the officer stopped, go from there.”
Counsel asked four questions about who was present and then asked where Wheet had turned on his police lights to pull over Manzano in relationship to where Manzano had pulled into his driveway. Collins did not allow Wheet to answer. Collins said, “I don’t care. Go ahead. Next question.” Counsel asked eight more questions about the discussion that Wheet had with Manzano after the stop. At that point, Collins said he would only allow 5 more minutes to finish the hearing:
“[Hearing Officer Collins:] Okay, I’m going to give you 5 more minutes to complete this.
“[Counsel:] Well —
“[Hearing Officer Collins:] Then I’m going to make a ruling based on what I’ve heard.
“[Counsel:] Well, wait, I — I have the other officer. I —
“[Healing Officer Collins:] Then you better huny.
“[Counsel:] Well, if we’re behind I can reschedule for a time that you have time. -ui
“[Hearing Officer Collins:] No, we can’t reschedule. We’re going to do it today.
“[Counsel:] Well, it’s going to take me —
“[Hearing Officer Collins:] It’s docketed for 10 minutes.
“[Counsel:] Well, I didn’t docket it for 10.
“[Hearing Officer Collins:] Use tire time as you [see] fit. Just warning you.”
Counsel finished questioning Officer Wheet (15 additional questions) and began questioning Officer Flores. She questioned Officer Flores, uninterrupted, regarding his report, Manzano’s ability to stop the vehicle, Manzano’s ability to speak clearly, and whether there was a videotape of the stop. Officer Flores explained that the written report had some information missing — that he had asked Manzano if he would be willing to go to the Law Enforcement Center to complete an alcohol-related test and that Manzano had said he would. At that point, Collins ended the hearing:
“[Hearing Officer Collins:] “At this time, I’m going to affirm the certification.
“[Counsel:] Um, I’m not done yet, because my client hasn’t testified.
“[Hearing Officer Collins:] No, ma’am. We’re done.
“[Counsel:] We’re not done with the hearing.
“[Hearing Officer Collins:] I said we’re done. (There’s your copy of the order. There’s one for the officers.”
Manzano filed a timely petition for judicial review by the district court. Manzano claimed that tire agency did not have jurisdiction to suspend his license because he did not receive due process of law during die administrative hearing. He also alleged that the procedure and decision-making process of the agency was unlawful and that the agency action was unreasonable, arbitrary, and capricious.
The district court conducted its hearing on September 6, 2012. Prior to the presentation of any evidence or testimony, the trial judge requested that the parties discuss the preliminary issues in the case. During that discussion, Manzano raised the issue of due process based on the abbreviated administrative hearing. After hearing further arguments and opening statements from the parties, the court noted it had read the stipulated transcript of the administrative hearing and declared the hearing “a farce.” The court continued, “[Tjhere was a travesty of justice performed by the hearing officer. That there was not any reasonable due process of law provided to Mr. Manzano during that particular hearing. And, frankly, he didn’t get a hearing.”
The district court dismissed the agency’s action against Manzano and ordered his driver’s license reinstated. The Kansas Department of Revenue has appealed to this court.
Legal Standards Applicable to This Appeal
When a party in a driver’s-license-suspension case appeals from an administrative hearing to the district court, the district court reviews the matter under the Kansas Judicial Review Act (the KJRA), K.S.A. 77-601 et seq. See K.S.A. 2013 Supp. 8-1020(p). Under the KJRA, the district court may grant relief if the agency action violated constitutional rights, K.S.A. 2013 Supp. 77-621(c)(1), if the agency erroneously interpreted the law, K.S.A. 2013 Supp. 77-621(c)(4), if the agency procedure was unlawful, K.S.A. 2013 Supp. 77-621(c)(5), and if the agency action was otherwise unreasonable, arbitrary, or capricious, K.S.A. 2013 Supp. 77-621(c)(8).
To the extent that the facts are not in dispute and only legal issues are involved, we review the matter independently, without any required deference to the district court. See In re Doe, 277 Kan. 795, 799, 90 P.3d 940 (2004). Here, the facts are not in dispute as to what happened at the administrative hearing, for which we have a transcript.
To the extent that any issues required the application of discretion by the district court, we review the district court’s decision for abuse of discretion. Unless the district court has made a factual or legal error, a district court abuses its discretion only when no reasonable person would agree with its decision. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 169, 298 P.3d 1120 (2013).
Analysis
I. The Hearing Officer Presiding over Manzano’s Administrative Hearing Violated Manzano’s Due-Process Rights by Arbitrarily Limiting the Hearing by Time and Subject Matter.
Before we discuss the specific arguments the parties have made in this appeal, we first must place thep into the procedural framework of the Kansas implied-consent law as well as the Kansas Supreme Court’s guidance about a driver s due-process rights under that law. The implied-consent law provides that a law-enforcement officer may ask a person to take a breath or blood test for alcohol when the officer has reasonable grounds to believe that the person was operating or attempting to operate a vehicle under the influence of alcohol or drugs. See K.S.A. 2013 Supp. 8-1001(b)(1). If the person fails or refuses the test, the person’s driving privileges maybe suspended. See K.S.A. 2013 Supp. 8-1002(e), (f).
That’s obviously an important matter, and Kansas law provides for two hearings at which the driver can challenge the suspension. First, the driver may request an administrative hearing before a hearing officer of the Department of Revenue. See K.S.A. 2013 Supp. 8-1020(a), (d). If the driver is not successful at the administrative hearing, he or she may petition for review in the district court, in which case the matter is tried “de novo” there, which means that the district court decides the matter independently based solely on the evidence presented to it. See K.S.A. 2013 Supp. 8-1020(p).
How these two hearings have been structured has varied over the years, as our Supreme Court set out in some detail in Kempke v. Kansas Dept. of Revenue, 281 Kan. 770, 781-97, 133 P.3d 104 (2006). At one time, only one issue could be argued at the administrative hearing when a driver refused a drug or alcohol test— whether the driver had reasonable grounds to refuse the test — and the driver’s license was suspended from the time of the administrative hearing (assuming the driver lost) until the de novo trial in the district court. 281 Kan. at 783, 790. Based on that system, the Kansas Supreme Court ruled in Wulfkuhle v. Kansas Dept. of Revenue, 234 Kan. 241, 246-49, 671 P.2d 547 (1983), that the administrative-hearing process then in place violated a driver s due-process rights because it failed to provide sufficient opportunity to cross-examine witnesses at the administrative hearing.
As the Kempke court noted, however, the implied-consent statute has since been amended in significant ways. Now, the driver s license suspension does not take effect until after the de novo trial in the district court, assuming the driver properly files and serves the petition for review by the district court. See K.S.A. 2013 Supp. 8-1020(o); Kempke, 281 Kan. at 783. In addition, as the Department of Revenue argued in Kempke, see 281 Kan. at 790, the scope of the administrative hearing was substantially broadened after Wulfkuhle. Given these developments, our Supreme Court concluded in Kempke that a driver’s due-process rights were not violated by an inability to subpoena some witnesses for the administrative hearing since they were given the opportunity to examine the certifying officer (usually the arresting officer) there, were permitted to present other evidence there, and did not lose the license until after a more extensive hearing was held in the district court. See 281 Kan. 770, Syl. ¶¶ 5-8. Even so, drivers do have due-process rights with respect to license suspension or revocation, and “the fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” 281 Kan. 770, Syl. ¶¶ 2-3.
In Manzano’s case, the license suspension was based on the claim that he refused to take a breath or blood test for alcohol. In a test-refusal case, K.S.A. 2013 Supp. 8-1020(h)(l) limits the scope of the administrative hearing to four issues: (1) whether the officer had reasonable grounds to believe the person was operating a vehicle under the influence of alcohol; (2) whether the person was in custody or arrested for an alcohol or drug related offense; (3) whether the proper notices were given; and (4) whether the person refused to submit or complete a test. That statute also limits the witnesses at the evidentiaiy hearing to the driver, any law-enforcement officer who signed the certification form (the DC-27 form), and “one other witness who was present at the time of the issuance of die certification.” In addition, the questioning of the law-enforcement officers “shall be restricted to the factual circumstances relied upon in tire officers certification.” K.S.A. 2013 Supp. 8-1020(g).
The officers who filled out a DC-27 form in Manzano’s case certified that he had been stopped for reckless driving. They also said that they had reasonable grounds to believe that he had been operating his vehicle under the influence of alcohol based on an odor of alcohol coming from him, slurred speech and bloodshot eyes, difficulty communicating, poor balance and coordination, and Manzano’s admission that he had consumed some alcohol.
We are fortunate in this case to have a transcript of the administrative hearing. Such transcripts are not routinely prepared, but Manzano’s attorney brought a court reporter to the hearing to record it. We have carefully reviewed that transcript. The questions asked by Manzano’s counsel at that hearing generally related to “the factual circumstances relied upon in the officer’s certification,” as required by K.S.A. 2013 Supp. 8-1020(h). Because of the restrictions tire hearing officer imposed, however, not all witnesses were allowed to testify and the hearing did not explore the four subjects it could have covered.
The Department of Revenue argues that there was no due-process violation. The Department contends that the only real purpose of the administrative hearing is to raise the issues that are to be determined. That is, in fact, one recognized purpose of tire hearing. A driver must first raise an issue at the administrative hearing — • even including constitutional challenges — or that issue may not be raised before the district court. See Martin v. Kansas Dept. of Revenue, 285 Kan. 625, 633-34, 176 P.3d 938 (2008); Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 773-76, 148 P.3d 538 (2006). There is also support for the Department’s position in Kempe, where the court said that the de novo trial in the district court “cures” procedural defects at tire administrative hearing:
“Unlike [state supreme court cases from other states], where no initial administrative hearing was afforded the licensees, Kansas motorists are granted by law an administrative predeprivation hearing and are permitted to present limited evidence at that hearing. Like [those cases from other states], however, Kansas law provides for a de novo hearing before the district court, which cures any procedural due process defects at the administrative hearing level.” 281 Kan. at 799.
Significantly, however, the Kempke court’s statement that the de novo hearing in the district court cures procedural due-process defects at the administrative hearing came directly after it had noted that Kansas motorists have an administrative hearing. And the court again emphasized in the paragraph following the one quoted above that “ [legislative changes have provided for an extensive hearing at the administrative level” as well as an extension of driving privileges until tire de novo trial in the district court. 281 Kan. at 799.
The Kempke court did not consider the possibility that the Department of Revenue would provide sham administrative hearings. Whatever one might call it, the hearing provided to Manzano cannot be called a fair or adequate hearing. His attorney’s questions were generally appropriate, yet the hearing officer continually interrupted the questioning and ultimately cut it off altogether. Man-zano did not have a chance to explore the bases for the statements the law-enforcement officers made on the DC-27 form or time for any possible constitutional challenges Manzano wished to raise at the administrative hearing so that they could be pursued later. In abruptly closing tire hearing, the hearing officer did not even provide an opportunity to state issues that Manzano wished to preserve; he simply ended the hearing and moved on to another case.
The Kansas Legislature has carefully crafted a system in which certain witnesses and evidence may be presented at the administrative hearing; more extensive evidence may be presented in the district court’s de novo trial. Here, the way the administrative hearing was handled deprived Manzano of the opportunity to meaningfully cross-examine the law-enforcement witnesses, the opportunity to present evidence (including his own testimony), the opportunity to identify potential issues that had to be raised at the administrative hearing, and the opportunity to list those issues to preserve them for later hearing before the district court. In short, the district court properly characterized the hearing as a sham. See American Heritage Dictionary 1599 (4th ed. 2006) (defining a sham as “[s]omething false or empty that is purported to be genuine”)-
Our court considered the teaching of Kempke in DeLong v. Kansas Dept. of Revenue, 45 Kan. App. 2d 454, 252 P.3d 582 (2011). As we said in DeLong, “The Kempke decision . . . recognizes that the combination of the administrative hearing with de novo judicial review provides sufficient constitutional due process in the context of suspension of driving privileges.” (Emphasis added.) 45 Kan. App. 2d at 457. Where, as here, the administrative hearing is a sham that does not provide a meaningful opportunity to present evidence, develop the issues, or identify the issues for a later hearing, the driver s due-process rights have been denied.
The Department of Revenue cites DeLong in support of its position that Manzano suffered no due-process violation. The Department contends that since Manzano has never lost his license (the suspension doesn’t take effect until his court appeal has been completed), he has yet to suffer a deprivation of property and, thus, has no due-process claim. But the facts in DeLong are far different than the ones now before us. In DeLong, the alleged due-process error was an allegedly erroneous mailing from the Department of Revenue that suggested DeLong’s license would be suspended even while her appeal of the suspension continued. That, of course, was incorrect, and DeLong claimed that it caused her concern. Our court found no due-process violation, noting that she had suffered no loss or suspension based on the claimed violation. 45 Kan. App. 2d at 457-58. We also noted, of course, that the combination of the administrative hearing and the de novo trial in district court met the requirements of due process. Here, those twin protections have been wiped away by a sham administrative hearing.
Manzano now faces the suspension of his license, and the potential issues on which he might challenge the suspension were neither reasonably explored nor identified at the administrative hearing. The district court’s de novo trial is limited to the issues raised at the administrative hearing. In this context, the violation of Manzano’s statutory right to a reasonable administrative hearing has violated his constitutional due-process rights as well.
II. The District Court Properly Dismissed the Department of Revenue’s Order Suspending Manzano’s Driving Privileges Based on the Denial of Manzano’s Due-Process Rights.
Based on the due-process violation, the district court said that it had two options — remand to the hearing officer or dismissal of the administrative proceeding to suspend Manzano’s license. The court concluded that dismissal was the appropriate option:
“One [option] would be to remand the case back to the hearing officer, but that would simply penalize [Manzano] for the administrative hearing officer’s actions without any compensation to him for the fees and costs not only for the initial administrative hearing, but also for the costs and fees associated with the appeal of his ruling to the district court. The second option would be to dismiss this case and order a reinstatement of the petitioner’s driver’s license immediately.”
The court then concluded that because the hearing had been “a sham” and the hearing officer had “actively interfered with the rights of petitioner during that hearing,” then “the only fair and appropriate order to be entered in this case is for the dismissal” of the administrative proceeding against Manzano’s license.
Once the district court has found that an administrative agency’s act is invalid under K.S.A. 2013 Supp. 77-621, then K.S.A. 77-622 provides broad authority to grant appropriate relief. K.S.A. 77-622(a) prohibits a damage award unless some other statute authorizes damages, but K.S.A. 77-622(b) broadly authorizes “other appropriate relief’ aside from damages, including setting aside the agency action or taking “any other action” that is “appropriate”:
“The court may grant other appropriate relief, whether mandatory, injunctive or declaratory; preliminary or final; temporary or permanent; equitable or legal. In granting relief, the court may order agency action required by law, order agency exercise of discretion required by law, set aside or modify agency action, enjoin or stay the effectiveness of agency action, remand the matter for further proceedings, render a declaratory judgment ox take any other action that is authorized and appropriate.” (Emphasis added.)
K.S.A. 77-622 appears to grant some level of discretion to the district court, offering a range of options and allowing the district court to choose the appropriate one in a specific case. For example, K.S.A. 77-622(b) allows the district court to remand the matter to an administrative agency for further proceedings; our Supreme Court has said that whether to send a matter back to the agency is a discretionary call. Sunflower Racing, Inc. v. Board of Wyandotte County Comm’rs, 256 Kan. 426, 447, 885 P.2d 1233 (1994). We conclude that the district court has some level of discretion in determining what action may be “appropriate” in a given case under K.S.A. 77-622(b).
We next consider whether the district court abused its discretion by ordering dismissal of the administrative proceeding to suspend Manzano’s license. In our view, where the administrative hearing officer has altogether failed to provide the opportunity for a meaningful hearing to the driver, a reasonable person could agree with the district court that dismissal is the appropriate remedy.
The Department of Revenue suggests that we instead affirm the administrative suspension. It bases this on a stipulation Manzano entered into in as part of a diversion agreement in a separate criminal case arising out of this DUI stop. Manzano responds that the diversion agreement itself provided that the stipulations were made solely for the purpose of that case and that K.S.A. 2013 Supp. 8-1020(t) provides that the “facts found by the hearing officer or by the district court” in a driver’s license suspension case “shall be independent of the determination of the same or similar facts in the adjudication of any criminal charges arising out of the same occurrence.” In the alternative, the Department suggests that we remand the matter to the district court to hold its de novo eviden-tiary hearing.
We find the Department’s suggestions off the mark. First, whatever discretion may be exercised in determining the proper ruling under K.S.A. 77-622 is given to the district court, not us. Second, even if Manzano’s factual statement in the diversion agreement were admissible in a separate driver’s-license-suspension case, nothing makes it binding here, so Manzano could still present other evidence. Thus, the Department’s suspension order cannot be affirmed without first providing for an evidentiary hearing. Third, the Department’s suggestion that we simply remand tire case to the district court for its de novo evidentiary hearing would not solve the problems created by the sham administrative hearing held in Manzano’s case — Manzano never had a chance to explore the is sues at that administrative hearing or to identify the issues he wanted to preserve for the de novo trial in the district court.
K.S.A. 77-622(b) allows the district court to set aside agency action or to “take any other action that is authorized and appropriate.” The district court had the authority in this case to set aside the administrative suspension without providing for any further proceedings. On the facts of this case, we find no abuse of discretion in the district court’s decision.
The district court’s judgment is therefore affirmed.
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Hill, J.;
When Byron Funk died intestate 14 years after his divorce from Glenda Funk (now known as Culver), his former employer paid the proceeds from his retirement account to Glenda because she was still the named beneficiary of the account. Contending Glenda had no proper claim to this retirement account because of their divorce, Byron’s estate sued Glenda seeking return of the proceeds on theories of breach of contract and unjust enrichment. The district court granted summary judgment to Glenda, and the estate appeals. Because the estate has neither shown us an enforceable contract nor established all the required elements to prove unjust enrichment, we affirm the district court.
The factual background is simple.
Byron and Glenda were divorced in Sedgwick County in June 1998. The divorce decree indicated the court awarded Byron his 401(k) “as his sole and separate property, free and clear of any right, title, claim or interest” of Glenda. Glenda was awarded her vehicle, her IRAs, and other items. The divorce decree gave the parties the standard directions to finish the paper work:
“Each parly shall promptly make, execute and deliver to the other party any and all deeds of conveyance, bills of sale, title of transfer, documents or any other instruments which may be necessary or convenient to carry out the terms of this Journal Entry. If either party fails to comply with the provisions of this paragraph, then this Journal Entry itself shall substitute as an actual grant, assignment, release and conveyance of the property and rights in such manner as shall be necessary or convenient to effectuate the terms hereof.”
Byron died intestate on February 6, 2012. The proceeds of his 401 (k) were distributed to Glenda, as she was still the named beneficiary on the account. The administrator of Byron’s estate — his sister, Sharalene K. Jones — sued Glenda in the district court, alleging her retention of the proceeds constituted (1) unjust enrichment; (2) a breach of contract with Byron (i.e., under the divorce decree); and (3) a breach of her fiduciary duty to Byron’s Estate.
The court disposed of tire breach of contract claim by ruling the Estate had failed to meet the burden of showing either the divorce decree or a pretrial order made in the case constituted a contract. The court denied judgment on the unjust enrichment claim because there was no benefit conferred upon Glenda by the Estate as required by the theory of unjust enrichment. The court also concluded that it was no more inequitable for Glenda to collect the proceeds of the 401(k) than it was for Jones or tire Estate to do so.
The court added that under K.S.A. 60-1610(b) (now K.S.A. 2013 Supp. 23-2802[d]), a change in beneficiary must be addressed in a divorce decree or by the actions of the owner. The court determined this provision applies to trusts and that Byron’s 401(k) qual ified as a trust. However, the court noted, Byron and Glenda’s divorce decree did not mention a change in beneficiary. The court said it could not grant equitable relief where the parties failed to comply with K.S.A. 60-1610.
We review some fundamental points of law.
The district court’s grant of summary judgment was based on its interpretation of the divorce decree and pretrial order. Issues involving the interpretation and legal effect of written contracts involve questions of law subject to unlimited review by this court. Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). The court’s decision also rested on its interpretation of caselaw and Kansas statutes. We exercise unlimited review over these issues. See Redd v. Kansas Truck Center, 291 Kan. 176, 187-88, 239 P.3d 66 (2010).
To demonstrate a breach of contract claim, a plaintiff must show:
• a contract existed between the parties;
• there was sufficient consideration to support the contract;
• one party performed or was willing to perform the requirements of the contract;
• a party breached the contract; and
• there were damages to the plaintiff caused by the breach of the contract.
See Commercial Credit Corporation v. Harris, 212 Kan. 310, Syl. ¶ 2, 510 P.2d 1322 (1973); City of Andover v. Southwestern Bell Telephone, 37 Kan. App. 2d 358, 362, 153 P.3d 561 (2007). Jones’ claim involved the first of these elements — whether a contract existed between the parties. And if there was a contract, we do not think it was breached.
The record reveals that the pretrial order, which was made during the divorce proceedings, listed the parties’ proposed divisions of their marital assets. In a section titled “RESPONDENT’S PROPOSED DIVISION OF VALUES,” Glenda listed “Byron’s 401k” under “Husband.” Other assets, such as “Glenda’s IRA,” were listed under “Wife.” In a section titled “PETITIONER’S PROPOSED DIVISION OF VALUES,” Byron listed his 401(k) under “Husband.” Thus, there was no conflict between the parties at that time — Byrons 401(k) should go to Byron.
On appeal, Jones argues the pretrial order constitutes a contract between Byron and Glenda in which they agreed Byron would keep his 401(k) account. Jones claims that because Glenda “agreed” in the pretrial order “to make no claim” to Byron’s 401(k), she is “now in breach” of that agreement. We are not so persuaded. This language does not create a contract.
Here, the pretrial order merely reflects Byron’s and Glenda’s “proposals” or “suggestions” as to what should happen with their assets. As the district court pointed out, Byron and Glenda did not sign the order, and there is no contractual language in the order indicating the parties’ proposals were binding or final or that the parties were purporting to agree on any particular asset. Instead, Byron and Glenda were simply offering suggestions as to how the various assets should be divided. The district court would later, in the divorce decree, make a final determination about the disposition of their marital property. Nothing about the pretrial order indicates it was a contract between Byron and Glenda.
Even if we would view the pretrial order as a contract, we see no breach of the contract. The order only proposed that Byron keep his 401(k) account. And there is no dispute that Byron did, in fact, keep his 401(k) account post-divorce.
What Byron arranged to have done with the proceeds of the asset upon his death is an entirely different matter. Byron was free to do whatever he wanted with the asset post-divorce. And if Byron desired, post-divorce, for Glenda to have the proceeds of the asset upon his death, Byron was free to make that arrangement. By leaving Glenda as the named beneficiary on the account, this court can only conclude that Byron must have intended such a result. Byron’s and Glenda’s pre-divorce claims over who would keep what assets has nothing to do with who Byron might choose to be the ultimate beneficiary of the asset at his death. In 14 years, he might have changed his mind. Byron retained the power to do whatever he wanted with the asset.
The court properly denied the unjust enrichment claim.
Jones argues the doctrine of unjust enrichment “allows parties like Jones, as the administrator of [Byron’s] estate, to recover funds which in equity and good conscience belong to the estate.”
In Kansas, the elements of an unjust enrichment claim are: (1) a benefit conferred upon the defendant by the plaintiff; (2) an appreciation or knowledge of the benefit by the defendant; and (3) the acceptance or retention by the defendant of the benefit under such circumstances as to 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).
We focus on the third element. In our view, the district court correctly determined the acceptance or retention of the 401 (k) benefits by Glenda was not under such circumstances as to make it inequitable for her to retain the 401(k) proceeds without payment of their value. See Haz-Mat Response, Inc., 259 Kan. at 177.
Byron retained possession of his 401(k) account post-divorce. What he arranged to have done with the proceeds of the asset upon his death was up to him. Even if Byron and Glenda agreed Byron would keep his 401(k) as his sole property, free and clear of any right, title, claim, or interest Glenda may have had in it, Byron was still free to do whatever he wanted with it post-divorce. If Byron desired, post-divorce, for Glenda to have the proceeds of the asset upon his death, Byron was free to make that arrangement. By leaving Glenda as the named beneficiary on the account, this court can only conclude that Byron must have intended such a result.
The Estate argues that Byron was not learned in the law and that he must have assumed the divorce decree was all that was needed to l-emove Glenda as the beneficiary. There is no proof of that in the record. Actions and refraining from acting are evidence a court can base a judgment on.
In finding it was not inequitable for Glenda to keep the proceeds of the account, the district court reasoned that K.S.A. 60-1610 requires a change in beneficiary be addressed in a divorce decree. Namely, K.S.A. 60-1610(b) states a divorce decree shall divide the real and personal property of the parties, including any retirement and pension plans, and that the decree
“shall provide for any changes in beneficiary designation on . . . any trust instrument under which one party is the grantor .... Nothing in this section shall relieve the parties of the obligation to effectuate any change in beneficiary designation by the filing of such change with the insurer or issuer in accordance with the terms of such policy.”
The court determined that Byron’s 401(k) qualified as a trust (which Jones conceded) and pointed out that Byron and Glenda’s divorce decree did not refer to changes in a beneficiary. The court therefore concluded it would not grant equitable relief where there was a failure to comply with K.S.A. 60-1610.
On appeal, Jones argues K.S.A. 60-1610 is inapplicable because Byron was not the “grantor” of a trust instrument. Jones says Byron’s employer was the grantor instead. We remain unconvinced.
Black’s Law Dictionary defines “grantor” as “[o]ne who conveys property to another” and a “[s]ettlor.” Black’s Law Dictionary 769 (9th ed. 2009). Kansas’ Uniform Trust Code defines a “settlor” as “a person, including a testator, who creates, or contributes property to, a trust.” K.S.A. 2013 Supp. 58a-103(14).The section states: “If more than one person creates or contributes property to a trust, each person is a settlor of the portion of the trust property attributable to that person’s contribution except to the extent another person has the power to revoke or withdraw that portion.” K.S.A. 2013 Supp. 58a-103(14).
By allowing his earnings to contribute to the 401(k) plan created by his employer, Byron was a settlor of the trust. Byron contributed part of his property to the trust. Jones cites authority for the idea that Byron’s employer is a grantor, but she fails to demonstrate that Byron is not a settlor of the trust.
As Byron was a grantor of a trust at the time of divorce, it was necessary that the divorce decree provide for any changes in a beneficiary designation related to that trust. Because the divorce decree did not do so, there was a failure to comply with K.S.A. 60-1610(b). Byron and Glenda were obligated, then, to malee any changes to beneficiary designations as they saw fit. Where Byron failed to make a change to the beneficiary designation on his 401 (k) account, the district court correctly refused to modify this legal obligation as a matter of equity.
Jones has failed to demonstrate there was a benefit conferred upon Glenda by Jones and that Glenda’s acceptance of the benefit would be inequitable. The district court did not err in granting summary judgment to Glenda on Jones’ unjust enrichment claim.
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Leben, J.:
Amanda L. Grotton pled guilty to the rape and sexual exploitation of her 4-year-old daughter based on a video — that she alleged her boyfriend forced her to malee — depicting Grotton inserting her fingers and dildos into her daughters vagina. Grotton was sentenced to two concurrent life sentences without the possibility of parole for 25 years and to a concurrent 6-month sentence for obstructing a police officer s official duty during her arrest. In Kansas, many criminal sentences — including obstructing official duty — are determined by putting a defendant’s crime and criminal history into a sentencing grid. Sentences for certain more serious crimes- — including the rape >of a child and the sexual exploitation of a child — are indeterminate sentences (with a required minimum number of years of incarceration) not found in the grid.
On appeal, Grotton argues that her off-grid life sentences are illegal under the double rule, which provides that a defendant sentenced for multiple convictions can generally only be required to serve a maximum sentence double the length of the sentence of the defendant’s primaiy crime. K.S.A. 21-4720(b)(4). She claims that because she has multiple convictions, she should have received a 12-month sentence (or twice her 6-month sentence for her primary crime — obstructing official duty). But when we look at the Kansas Sentencing Guidelines Act as a whole, we find that the legislature did not intend for the double rule to apply to off-grid crimes. If it did, it would lead to an absurd result — the double rule would limit Grotton’s sentence to 12 months, while someone convicted of the same off-grid crimes but not an additional grid crime would serve life sentences.
Grotton also argues that the district court made a legal error by concluding it couldn’t consider her criminal history in deciding whether to grant a departure from her life sentences. The court stated that it believed that the impact of prior criminal history was “up to the legislature” and that it wasn’t the court’s “place to substitute [its] judgment with respect to the value of prior criminal history.” Because K.S.A. 21-4643(d)(1) lists “no significant history of prior criminal activity” as a factor that can be a substantial and compelling reason for a court to depart, we remand the case so that the district court can reconsider a departure using the correct legal standard.
Factual and Procedural Background
In 2012, Grotton pled guilty to the rape and sexual exploitation of her 4-year-old daughter, both off-grid person felonies, for placing her fingers and two dildos in her daughter’s vagina in November 2008. The State had a video depicting the events, and Grotton alleged that her boyfriend forced her to make the video when he was not present. Grotton also pled guilty to obstructing official duty, a severity-level-9 nonperson felony, for intentionally resisting a police officer when he tried to arrest her on the charges for rape and sexual exploitation of a child in March 2011.
Before sentencing, Grotton filed a motion requesting a downward-durational departure to obtain a shorter sentence. In a sentencing memorandum, Grotton acknowledged that her presumptive sentence would have been 25 years of incarceration if she had pled guilty to only the off-grid crimes. But she argued that since she pled guilty to obstructing an official duty, that crime is her primaiy offense, and under the double rule — which provides that the total prison sentence the sentencing court imposes cannot exceed twice the base sentence — her total controlling sentence could be no more than twice her maximum sentence for obstructing official duty, or 12 months. K.S.A. 21-4720(b)(4). The district court ruled that the double rule did not apply in Grotton’s case because it only covers grid crimes and would cause an absurd result if applied to off-grid crimes.
The court sentenced Grotton to two concurrent life sentences without the possibility of parole for 25 years for rape and sexual exploitation of a child and to a concurrent 6-month sentence for obstruction of an official duty. Grotton now appeals to this court.
Analysis
Grotton s Sentence Is Not Illegal.
A criminal sentence is illegal if it is imposed by a court without jurisdiction, if it doesn’t conform to the character or the term of punishment imposed by the statutory provision, or if it is ambiguous with regard to when and how it must be served. State v. Bradford, 299 Kan. 288, 289, 323 P.3d 168 (2014). The Jessica’s Law statute sets out sentences for child-sex-abuse cases. It provides that first-time offenders convicted of rape of a child under 14 years old or sexual exploitation of a child must be sentenced to life imprisonment with a minimum term of 25 years unless the sentencing judge finds substantial and compelling reasons to depart and impose a lesser sentence. K.S.A. 21-3502; K.S.A. 21-3516; K.S.A. 21-4643(a)(1), (d).
Grotton argues that her life sentences are illegal because they do not conform to the double rule set out in K.S.A. 21-4720(b)(4). The double rule provides that a defendant sentenced for multiple convictions can generally only be required to serve a maximum sentence double the length of the sentence for her primary crime, which is the grid crime with the highest severity ranking:
“In cases where consecutive sentences may be imposed by the sentencing judge, the following shall apply:
“(2) The sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with die highest crime severity ranking. An off-grid crime shall not be used as die primary crime in determining the base sentence when imposing multiple sentences. If sentences for off-grid and on-grid convictions are ordered to run consecútively, die offender shall not begin to serve the on-grid sentence until paroled from the off-grid sentence, and the postrelease supervision term will be based on the off-grid crime. . . .
“(4) The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice die base sentence. This limit shall apply only to the total sentence, and it shall not be necessary to reduce the duration of any of the nonbase sentences imposed to be served consecutively to the base sentence.” K.S.A. 21-4720(b)(2), (4).
Grotton contends that because an off-grid crime cannot be used as the primary crime, her primary crime was obstructing official duty, and under the double rule, she could only be sentenced to 12 months (or twice her 6-month sentence for obstructing official duty). See K.S.A. 21-3808(b)(1); K.S.A. 21-4720(b)(2).
In determining whether the double rule limits Grottoris sentence to 12 months, we must interpret K.S.A. 21-4720, which is a legal question that we review independently, without any required deference to the district court. Fisher v. DeCarvalho, 298 Kan. 482, 492, 314 P.3d 214 (2013); State v. Ross, 295 Kan. 1126, 1130-31, 289 P.3d 76 (2012). When interpreting a statute, we first determine the legislature’s intent through the statute’s language, by giving words their ordinary meaning. 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 tire language is unclear, we use canons of construction, legislative history, or other background considerations to determine what the statute means. 296 Kan. at 918. Even when statutory language is clear, however, we may con sider certain canons of construction. We may review the provisions of an act with a view of reconciling them and construe statutes to avoid “unreasonable or absurd results.” Northern Natural Gas Co., 296 Kan. at 918.
Let’s begin our analysis by reviewing what K.S.A. 21-4720 tells us about Grotton’s case. First, under K.S.A. 21-4720(a) and (b), except in certain circumstances not applicable here, the district court has discretion to impose concurrent or consecutive sentences. Here tire district court imposed concurrent grid and off-grid sentences. Second, under K.S.A. 21-4720(b)(2), a defendant’s primary crime is the crime with the highest severity ranking and cannot be an off-grid crime. Thus, Grotton’s primary crime was her grid felony- — obstructing official duty. Accordingly, if the double rule applies to off-grid crimes, Grotton’s sentence should be limited to 12 months under the rule. K.S.A. 21-4720(b)(4).
When we apply the statutory-interpretation rules noted in Northern Natural Gas and look at the Kansas Sentencing Guidelines Act as a whole, however, we find that the double rule in K. S .A. 21-4720(b)(4) does not apply to off-grid crimes. First, applying the double rule to Grotton’s off-grid sentences would necessarily violate another section of the sentencing guidelines, K.S.A. 21-4643(a)(1)(B), (F), which requires that defendants who are at least 18 years old and are convicted of rape of a child or sexual exploitation of a child be imprisoned for not less than 25 years.
Second, if the double rule applied to off-grid crimes and the court imposed only two consecutive life sentences without the possibility of parole for 25 years, it would be impossible to calculate the maximum sentence permitted under the double rule because life sentences are indeterminate.
Moreover, applying the double rule to consecutive grid and off-grid sentences would lead to an absurd result. Even Grotton acknowledges this — if the double rule limits her sentence to 12 months, a person who is only convicted of the off-grid offense would serve a life sentence while she would serve only 12 months by virtue of also committing an additional grid crime. See K.S.A. 21-3502(c); K.S.A. 21-3516(c); K.S.A. 21-4706(d); Northern Natural Gas, 296 Kan. at 918.
A more reasonable interpretation of K.S.A. 21-4720(b) is that grid and off-grid sentences are handled separately. Section (b)(2) provides that when grid and off-grid sentences run consecutively, the offender serves the off-grid sentences first and does not begin to serve the grid sentence until paroled from the off-grid sentence. Because tire primary crime cannot be an off-grid crime, the double rule applies to tire grid crimes after the defendant serves his or her off-grid sentence and does not limit the off-grid sentences. K.S.A. 21-4720(b)(2). In cases where the sentences all run concurrent to each other — as is the case here — the grid sentence is subsumed into the off-grid sentence, and the double rule does not come into play. Under this reasonable interpretation of K.S.A. 21-4720(b), the double rule does not apply to Grotton’s off-grid sentences, and her total sentence was not illegal.
The District Court Abused Its Discretion in Denying Grotton s Motion for a Downward-Durational Departure by Basing Its Decision on an Erroneous Legal Conclusion.
Grotton also argues that the district court abused its discretion in denying her motion for a durational departure (to a shorter sentence) from her off-grid sentences. When a defendant is convicted of rape of a child or sexual exploitation of a child, she automatically receives a hard 25 life sentence; to receive a more lenient sentence, she must establish a substantial and compelling reason. K.S.A. 21-4643(a)(1), (d); State v. Baptist, 294 Kan. 728, 734, 280 P.3d 210 (2012). Grotton requested a more lenient sentence, and K.S.A. 21-4643(d) provides a nonexclusive list of mitigating factors for tire sentencing court to consider when deciding whether to depart from her presumed life sentences:
“[M]itigating circumstances shall include, but are not limited to, the following:
(1) The defendant has no significant history of prior criminal activity.
(2) The crime was committed while the defendant was under the influence of extreme mental or emotional disturbances.
(3) The victim was an accomplice in the crime committed by another person, and the defendant’s participation was relatively minor.
(4) The defendant acted under extreme distress or under the substantial domination of another person.
(5) The capacity of the defendant to appreciate the criminality of die defendant’s conduct or to conform the defendant’s conduct to tire requirements of law was substantially impaired.
(6) The age of the defendant at tire time of tire crime.”
The district court considers whether the mitigating circumstances are substantial and compelling reasons to depart on a case-by-case basis. State v. Rochelle, 297 Kan. 32, 46, 298 P.3d 293, cert. denied 134 S. Ct. 270 (2013). It is not obligated to depart just because a mitigating factor exists. State v. Remmert, 298 Kan. 621, 630, 316 P.3d 154 (2014).
At sentencing in Grotton’s case, the court stated that Grotton’s mental impairment was not a substantial and compelling reason for departure when weighed against Grotton’s breach of her duty to care for her daughter. The court said that “standing alone,” Grot-ton’s “significant mental health issues” would have “probably be[en] a substantial and compelling reason to depart” but that the mental-health issues were “cancelled out or set off’ by the fact that Grotton had had a duty to provide “care, safety, kindness, guidance, security, . . . love and . . . protection” for her daughter and had failed to do so.
The court also stated that Grotton’s limited criminal history was not a substantial and compelling reason for departure and that tire impact of prior criminal history on sentencing was something for the legislature to decide:
“[Grotton] does have a minimal or a very minimal criminal record and, in fact, no prior felonies. But, again, this, standing alone, I don’t find to be a substantial and compelling reason to depart.
“The Kansas legislature sets up sentencing guidelines for both on-grid and off-grid felonies. In the on-grid or cases that are sentenced under the Kansas Sentencing Guideline Act, the legislature has obviously determined that a — diat one’s prior criminal history should be a major consideration.
“In fact, in many cases, the prior criminal record determines whether it’s a presumptive probation case or whether it’s a presumptive incarceration case, whether you fall in a border box and tilings of that nature. And, in all cases, the greater your record, the higher the sentence in terms of months.
“With respect to off-giid crimes, however, the legislature has deemed that off-grid crimes are deemed to be so serious that. . . there is a presumption of a . . . life sentence . . . without regard tb the defendant’s criminal record.
“In my mind these are matters that are up to tire legislature. If the legislature had in fact intended to distinguish between Jessica’s Law off-grid convictions where there is a prior record or where there is not, they could have easily said that you’d be eligible for parole after 20 years versus 25 or 15 or 10. So I don’t believe that it’s my place to substitute my judgment with respect to tire value of prior criminal history. So, again, I don’t find that that’s a substantial and compelling reason to depart.”
We review the court’s denial of the departure motion for an abuse of discretion. Remmert, 298 Kan. at 629. The district court abuses its discretion if its decision is based on an error of fact or law or if no reasonable person would agree with the court’s discretionary judgment call. 298 Kan. at 629. Grotton argues that the district court made two legal errors when it decided to deny her motion for a downward-durational departure: weighing the mitigating factors against the aggravating factors in her case and erroneously concluding that criminal history can’t be a mitigating factor.
First, did the district court err in weighing both mitigating and aggravating factors in Grotton’s case? K.S.A. 21-4643(d) provides that “the sentencing judge shall impose the mandatory minimum term of imprisonment . . . unless die judge finds substantial and compelling reasons, following a review of mitigating circumstances, to impose a departure.” (Emphasis added.) Grotton argues that the statute doesn’t allow the district court to weigh aggravating factors against mitigating ones. But the Kansas Supreme Court has said that when the district court decides whether to depart in child-sex-abuse cases, it considers both mitigating and aggravating circumstances: “In exercising this discretion [to either grant or deny a departure], a district court first reviews the mitigating circumstances and then weighs those circumstances against any aggravating circumstances, ultimately determining whether substantial and compelling reasons warrant a departure.” Remmert, 298 Kan. at 630; see Baptist, 294 Kan. at 734.
Grotton asks us to find that the Kansas Supreme Court cases were wrongly decided, but we are duty bound to follow the Supreme Court’s precedent when there is no indication that it is departing from its position. State v. Acevedo, 49 Kan. App. 2d 655, 670, 315 P.3d 261 (2013), petition for rev. filed December 23, 2013. Accordingly, we find the sentencing court did not err in weighing both mitigating and aggravating factors in Grotton’s case.
Second, did the district court fail to consider Grotton’s limited criminal history in deciding whether to grant her a departure? Grotton argues that the district court’s statements showed that it incorrectly believed that an offender’s lack of significant criminal history, which is one of the mitigating factors in K.S.A. 21-4643, can never serve as a mitigating factor favoring departure.
Grotton contends her case should be remanded for resentencing under State v. Randolph, 297 Kan. 320, 301 P.3d 300 (2013). In Randolph, the district court had applied the wrong list of mitigating factors in ruling on a defendant’s departure motion in a Jessica’s Law case. 297 Kan. at 336. Two of the factors in the Jessica’s Law statute — age and limited criminal history — had not been on the list of factors the court had applied. 297 Kan. at 337. The Kansas Supreme Court found that there was a reasonable probability that a sentencing judge would have given more weight to tire two factors if he had recognized that the legislature intended they be considered in Jessica’s Law cases, even though sentencing courts are not required to state the reasons for denying a departure motion. 297 Kan. at 337.
We agree with Grotton and find that the court’s statements that the impact of prior criminal history on sentences for rape and sexual exploitation of a child “are matters that are up to the legislature” and that it wasn’t the court’s “place to substitute [its] judgment with respect to the value of prior criminal history” are at odds with K.S.A. 21-4643(d)(1), which lists “no significant history of prior criminal activity” as a factor that can be a substantial and compelling reason to depart. See Rochelle, 297 Kan. at 47-48 (holding that a sentencing court can grant a departure relying solely on a lack of criminal history). The district court’s statements indicate that it erroneously concluded that it could not consider prior criminal history as a mitigating factor. And since the district court found Grotton’s mental-health issues to be significant, if it had considered prior criminal history, it might have found that the mental-health issues and limited criminal history together outweighed the aggra vating factor — that Grotton failed in her duty to provide “care, safety, kindness, guidance, security, . . . love and . . . protection” for her daughter.
We therefore conclude that the case should be remanded for the district court to give further consideration to the sentence; the parties and this court should be confident that the court has made its sentence under a correct understanding of the applicable statutes. See Randolph, 297 Kan. at 337-38 (remanding for resentenc-ing where there was a “reasonable probability” district court might have given different weight to sentencing factors if it had correctly applied the law); State v. Sherman, No. 109,244, 2014 WL 902151, at *2-4 (Kan. App. 2014) (unpublished opinion) (remanding for resentencing where some mitigating factors not considered applicable by district court could have been proper basis for departure sentence).
The district court’s judgment is affirmed except for the sentence, which is vacated. The case is remanded for resentencing. | [
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Leben, J.:
Q.S. appeals from the termination of her parental rights to three children. Such rights may be terminated only in circumstances set out by statute and only when clear and convincing evidence supports the termination. Mother claims on appeal that the evidence in this case wasn’t sufficient to terminate her parental rights and that the district court abused its discretion by terminating her rights rather than taking some other action, like giving her additional time to prepare for the children to live with her again.
But termination is authorized when a parent has shown a lack of effort to adjust her circumstances, conduct, and condition to meet the children’s needs, K.S.A. 2013 Supp. 38-2269(b)(8), and when reasonable efforts by public and private agencies to get the family back together have failed. K.S.A. 2013 Supp. 38-2269(b)(7). Here, Mother agreed that the children were without adequate parental care when they were taken into State custody, and during the 10 months the case was pending, Mother had taken very limited steps toward accomplishing a variety of tasks aimed at reuniting her with her children. She had also missed scheduled visits with her children at least once a month for 6 months and had failed even to maintain contact with her assigned court-services officer for about 6 months.
We recognize that termination of parental rights is a serious matter. We have reviewed the record in this case, and we find clear and convincing evidence to support the district court’s findings that Mother was unfit as a parent under Kansas law and that the conditions leading to that finding were unlikely to change in the foreseeable future. We also find no abuse of discretion in the district court’s decision to terminate Mother’s parental rights, and we therefore affirm its judgment.
Factual and Procedural Background
Cases like these are necessarily fact driven, so we must set forth the factual background in some detail. The children involved in this case — and their ages when initially removed from their mothers home — are R.S., a 7-year-old boy, P.S., a 4-year-old girl, and A.S., a 10-month-old girl. M.S. is the father of R.S. and P.S., while the identity of the father of A.S. was not established in this proceeding. The district court also terminated the parental rights of M.S. and of the unknown father of A.S., but only the mother s rights are at issue in this appeal.
This family came to the attention of child-welfare personnel with the Kansas Department for Children and Families on November 9, 2012. R.S. was admitted that day to the KVC Mental Health Hospital because his behaviors were a danger to himself and others.
Hospital staff saw R.S. hitting, kicking, and cursing Mothers boyfriend, S.B. They also saw S.B. throw R.S. onto a couch 10 to 12 times and tiren sit on him to control him, while Mother stood by watching. At that time, Mother and S.B. had been staying in a motel with the children.
R.S. had previously been admitted to the same mental hospital in September 2012. At that time, he was kicking teachers, had threatened to lull his sister, had exposed himself to others, and had shown head-banging behavior. When hospital staff discharged R.S. in September, staff told the family that R.S. needed therapy and medication-management services, but the family did not follow through on those recommendations.
State child-welfare personnel referred the family for services through a social-service agency, DCCCA, and State and DCCCA personnel scheduled a meeting with Mother and S.B. at their residence in late November 2012. State personnel had asked that all family members be present, but only Mother, S.B., and A.S. were there; Mother said that R.S. and P.S. were at their father s home. Mother said she wasn’t sure whether R.S. would continue to live with her full time, but she said she had not yet enrolled him in school or applied for insurance for the children in Kansas. R.S.’s father had with drawn him from school in Missouri on November 26.
On November 28, Mother and S.B. were arrested for shoplifting in Missouri. All three children were with them at the time, so police also charged them with child endangerment.
Kansas child-welfare personnel learned that Mother and M.S. had a history of reports with Missouri child-welfare agencies dating back to April 2009. The early reports were for bad hygiene, lack of food, and home cleanliness. In addition, when A.S. was born prematurely in February 2012, Mother tested positive for opiates. A.S. was also born with a herniated naval; Mother did not take her to scheduled doctor appointments to address that condition.
Upon investigation, Kansas staff learned that S.B. had been convicted of two misdemeanor sexual-battery charges involving a 15-year-old girl; as a result, he was required to register as a sex offender. S.B. also had a criminal history including theft and burglary.
Kansas filed child-in-need-of-care petitions for all three children on December 3, 2012. At first, the State did not seek immediate removal of the children from Mother s residence. But it filed an amended petition a week later asking that the children be removed immediately. In addition to earlier allegations, the amended petition alleged that although R.S. had by then been enrolled in school, he had attempted to run away several times when dropped off there; his parents had not picked him up from school one day; and S.B. was still spanking R.S. despite a case-plan recommendation not to do so. The children were removed from their home on December 12.
On January 29, 2013, the court held a hearing to determine whether the children were in need of care, a finding that would allow further proceedings, including possible termination of parental rights. Mother stipulated that the children were in need of care because they did not have adequate care from their parents for reasons beyond lack of financial means, K.S.A. 2012 Supp. 38-2202(d)(1), and because they were without the care necessary for their physical, mental, or emotional health, K.S.A. 2012 Supp. 38-2202(d)(2). The'court placed custody of the children with the Department for Children and Families.
The court entered a series of orders for the parents to follow, aimed at reuniting the children with them. Based on Mother’s past drug use and concerns about present usage (the amended petition alleged that she had prescription medications not prescribed for her when she was arrested for shoplifting), the court ordered that Mother get a substance-abuse evaluation and follow any recommendations she might be given. The court also ordered that Mother be available for random urine tests for drug usage, that she maintain regular contact with a court-services officer, that she attend parenting classes, that she obtain a mental-health evaluation and follow its recommendations, and that she maintain stable and appropriate housing. The order also provided for supervised visitations with the children. At a follow-up hearing 1 month later, the court added a requirement that Mother complete a batterer’s-intervention assessment and follow its recommendations.
At a review hearing in June 2013, a court-services officer presented a report identifying several problems. One was Mother’s continuing relationship with S.B. even though Mother had been told that the children could not come home if S.B. was living with her (based on his sex-offender history). In addition, Mother had not kept in contact with her court-services officer, had missed urine tests, and had not completed a batterer’s-intervention assessment.
The State filed a motion to terminate Mother’s parental rights in August 2013, and the court held a trial on September 17, 2013. The State presented the testimony of Dianne Keech, a court-services officer, and Christine Hannan, the case manager assigned to this family by KVC Behavioral Healthcare, a contract service provider for the State.
Hannan supervised visits, informed Mother of her responsibilities under the court’s orders, and gave Mother referrals for the services she needed to complete the orders. She said that home visits had been discontinued because Mother had smoked in the home, which had caused problems for the children, who have asthma. Hannan reported that Mother had had a very flat affect during initial visits and had not engaged with her children. After several visits and Hannan’s prompting, Hannan said Mother had become more engaged but still had not expressed excitement about the visits and had to be prompted to change A.S.’s diapers.
In addition, Mother’s attendance at visits wasn’t consistent- — she missed one visit in March, at least one in April, one in May, one in June, at least one in July, and one in August. She also missed a June case-planning meeting. Hannan said that Mother’s missed visits affected the children, with R.S. acting out at school after missed visits and P.S. telling a foster parent that she never knew whether her Mother would show up.
Initially, S.B. attended the visitations as well. Keech said that Mother had continued to bring S.B. to visitations even after workers had told her not to do so; he finally stopped attending in March. Mother admitted that she had learned of S.B.’s sex-offender-registration status in February and that she had been told the children couldn’t be placed with her as long as she lived with S.B. Mother said that she had ended her relationship with S.B. in August.
Mother completed some of the case-plan tasks but failed to complete many others:
• She didn’t maintain regular contact with her assigned court-services officer from the January 2013 hearing through July, and the court-services officer couldn’t contact Mother in April and May, even to notify her of scheduled mine tests. But Mother did maintain contact from July 31 until the trial.
• Mother tested positive for marijuana on September 5, 2013, though she denied using it. Mother completed some negative UA tests but missed others, in part because she couldn’t be contacted.
• Mother completed a psychosocial assessment early in the case, which resulted in the recommendations that she complete mental-health and substance-abuse assessments. She did not obtain either of those assessments.
• Mother did not complete the batterer’s-intervention assessment, although she was given information about where she could obtain that service (as well as other recommended assessments).
• Mother completed parenting classes between the June 2013 hearing and trial.
• Mother was not employed at any time during the case and was financially dependent on her parents or S.B.
• Mother lived in four different residences, two of which were motels, during the 10 months the case was pending. At the time of trial, she was residing temporarily with a friend in Kansas City, Missouri, but she said that she would have to leave that residence by October.
Keech testified that all three children had shown signs of neglect when taken into State custody. She said that R.S. had had extreme behaviors at first but that his behaviors had stabilized in foster care — he hadn’t been hospitalized or had any critical episodes related to his mental health. P.S. had several health concerns that had not been addressed before she came into State custody. A.S., the infant, had been seriously underweight, had shown limited mobility, and had shown signs that she had been left on her back for extended periods before entering State custody. Hannan said that all three children were thriving in foster homes and that A.S. had gained weight and was becoming a more normally active infant.
Keech and Hannan expressed concern about Mother’s lack of stability throughout the time they had worked with her. Both also expressed the opinion that no new orders would aid in reintegrating the children with Mother given the minimal effort she had made. Hannan also expressed the opinion that Mother was unlikely to change her circumstances in the foreseeable future.
Mother testified on her own behalf. She said that she believed her visits with the children were going well. She said she wanted to bring the children home but was still trying to find a job. Mother said she had applied at a minimum of 16 places but had not found employment. She has a high-school education. She admitted that her living situation at the time was only temporary but said that she thought she could find a job by the time she had to leave the residence. She agreed that she did not know when she would get a job and a home appropriate for the children but believed that with more time she could improve her situation.
Mother said she had not had a mental-health assessment because she could not afford the $75 fee. But she also said that “in a way” she did not believe that she needed the evaluation.
The district judge concluded that Mother was unfit, that her unfitness was unlikely to change in the foreseeable future, and that it was in the children’s best interests to terminate her parental rights so that the children could be adopted. The judge agreed with Mother’s attorney that the case had only been pending a relatively short time and said that “if [he] thought [the parties] had moved one iota towards reintegrating the children” he would be inclined to give Mother additional time. But other tiran completing parenting classes and showing up for some visits, the district court found that Mother had made little progress. The court noted that Mother had missed visits with the children even in July and August, which was after the State had filed its motion to terminate parental rights.
The court found Modrer unfit because she had not made a sufficient effort to adjust her circumstances to meet the needs of the children, K.S.A. 2013 Supp. 38-2269(b)(8), because reasonable efforts by appropriate agencies had been unable to rehabilitate tire family, K.S.A. 2013 Supp. 38-2269(b)(7), and because Mother had failed to carry out a reasonable, court-approved plan aimed at reintegrating the family while the children were out of her physical custody, K.S.A. 2013 Supp. 38-2269(c)(3). The court also concluded drat these conditions were unlikely to change in the foreseeable future.
The court concluded diat it was in the children’s best interests to terminate Mother’s parental rights. The court did not make any further explanation; it orally recited a number of other findings, including those on unfitness, before addressing best interests. Earlier in the hearing, it had also made significant statements, including that Mother had “physically, mentally, and emotionally neglected the children,” that “the ongoing mental health needs of [R.S.] . . . were clearly not being attended to,” and diat there was an overall lack of stability for the children.
Mother has appealed to this court.
Standard of Review on Appeal
We must give some consideration to our standard of review on appeal. In this case, the district court has made two separate de terminations that we must review. First, the district court made two findings related to Mother’s fitness as a parent — that Mother was unfit for specific factual reasons and that this unfitness was unlikely to change in the foreseeable future. Those findings allowed the court to consider whether to terminate Mother’s rights to her children. Second, the district court found that terminating Mother’s parental rights was in her children’s best interests.
Our standard for reviewing the first decision — the district court’s conclusions on parental fitness — is well established. The district court may make the fitness findings based only on clear and convincing evidence, K.S.A. 2013 Supp. 38-2269(a), so we must determine on appeal whether clear and convincing evidence supports the district court’s findings. To do so, we determine whether the evidence, taken in the light most favorable to the State (since the district court ruled in its favor), could have convinced a rational factfinder that these facts were highly probable. In re B.D.-Y., 286 Kan. 686, 705, 187 P.3d 594 (2008).
For the second decision — whether termination of parental rights is in the best interests of the child — our court has provided inconsistent statements about whether we should review the best-interests determination under an abuse-of-discretion standard or under the clear-and-convincing-evidence standard. Compare In re K.P., 44 Kan. App. 2d 316, 322, 235 P.3d 1255 (abuse of discretion), rev. denied 291 Kan. 911 (2010), with In re L.B., 42 Kan. App. 2d 837, 846, 217 P.3d 1004 (2009) (clear-and-convincing evidence), rev. denied 289 Kan. 1278 (2010). So here we consider the appropriate standard for that review.
We must be guided, of course, by the applicable statute, K.S.A. 2013 Supp. 38-2269. Once a child has been adjudicated as one in need of care, the statute provides that
“the [district] court may terminate parental rights or áppoint a permanent custodian when the court finds by clear and convincing evidence that the-parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” (Emphasis added.) K.S.A. 2013 Supp. 38-2269(a).
From the statutory language, it’s clear that the district court’s ultimate decision — deciding to terminate parental rights, appoint a permanent custodian, or do neither — is a discretionary call. The statute says that “the court may terminate parental rights or appoint a permanent custodian” if certain facts exist, not that it must do so. The word “may” in a statute typically signals that the decision is a discretionary one. See Jordan v. Jordan, 47 Kan. App. 2d 300, Syl. ¶ 6, 274 P.3d 657 (2012). Discretionary decisions are reviewed for abuse of discretion.
We should note that in addition to K.S.A. 2013 Supp. 38-2269(a), which provides that the court may terminate parental rights or appoint a permanent custodian, the court’s decision-making process is also addressed in K.S.A. 2013 Supp. 38-2269(g)(1). That provision adds that “[i]f the physical, mental or emotional needs of the child would best be served by termination of parental rights, the court shall so order.” (Emphasis added.) The use of “shall” in that provision doesn’t change the call from a discretionary one to a mandatory one: only if the court determines termination is in the child’s best interests — an inherently discretionary judgment call— is the court required to terminate parental rights. See K.P., 44 Kan. App. 2d at 321-22.
The standard of review for a best-interests determination was not at issue in In re B.D.-Y., our Supreme Court’s seminal decision on the standard of review for factual findings. In B.D.-Y., the appellate court reviewed a ruling that a child was in need of care for clear and convincing evidence to support the ruling. Like the fitness findings in tire case now before us, child-in-need-of-care findings are based on a series of potential -factual bases established by statute. See K.S.A. 2013 Supp. 38-2202(d). The district court makes no best-interests finding when it determines a child is in need of care; it simply authorizes further proceedings (including possible termination of parental rights). B.D.-Y. thus set out the standard of review for fact-based determinations, not discretionaiy judgment calls.
For the discretionary best-interests decision, abuse of discretion is tire logical standard of review: A best-interests determination is “in all cases a highly discretionaiy call.” In re J.D.W., 711 A.2d 826, 834 (D.C. 1998). The Kansas Supreme Court ‘has noted in the context of child-custody determinations arising in divorce cases that the “district court [is] in a better position to evaluate the complexities of the situation and to determine the best interests of the children,” and its best-interests judgment is reviewed for abuse of discretion. In re Marriage of Bradley, 258 Kan. 39, 45, 899 P.2d 471 (1995); accord In re Marriage of Rayman, 273 Kan. 996, 999, 47 P.3d 413 (2002). The same is true for a best-interests determination made during a proceeding to terminate parental rights.
Even so, we must still consider whether constitutional due-process principles require that we conduct a more stringent review: A parent has a fundamental liberty interest in his or her relationship with the child, so the allegations of conduct that form the basis for termination must be proved by clear and convincing evidencé. Santosky v. Kramer, 455 U.S. 745, 769-70, 102 S. Ct. 1388, 71 L. Ed. 2d 599 (1982).
But that does not necessarily mean that a best-interests determination must be reviewed under a clear-and-convincing-evidence standard. In an extensive analysis, the Illinois Supreme Court determined that the trial court’s best-interests decision was a discretionary ruling that higher courts should review for abuse of discretion. In re D.T., 212 Ill. 2d 347, 360-66, 818 N.E.2d 1214 (2004).
Like Kansas, Illinois follows a two-step process to terminate a parent’s rights. The court must first find unfitness; if it does, the court then determines whether it is in the child’s best interests to terminate tire parent’s rights. 212 Ill. 2d at 352. In addition, like Kansas, Illinois statutes require that the fitness determination be based on clear and convincing evidence. 212 Ill. 2d at 352. The court held that constitutional due-process requirements were satisfied by the high evidentiary requirement for an unfitness finding, where the focus is on the parent’s conduct. Thus, a parent’s rights cannot be terminated unless the court first finds unfitness — based on the parent’s conduct measured against statutory standards. 212 Ill. 2d at 364.
In the best-interests phase, however, “[t]he issue is no longer whether parental rights can be terminated; the issue is whether, in light of the child’s needs, parental rights should be terminated.” 212 Ill. 2d at 364. During that determination, the Illinois Supreme Court concluded that trial courts may make any additional factual findings appropriate to answering the best-interests question under the preponderance-of-the-evidence standard (i.e., whether a fact is more likely true than not). The court determined that this satisfied due-process requirements and was the most appropriate ev-identiary standard given the nature of the best-interests standard. 212 Ill. 2d at 366. We find the Illinois court’s analysis persuasive.
We therefore review the best-interests determination under our traditional abuse-of-discretion standard: We review for abuse of discretion, which occurs when no reasonable person would agree with the district court or the district court premises its decision on a factual or legal error. See Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 292, 263 P.3d 767 (2011). In determining whether the district court has made a factual error, we review any additional factual findings made in the best-interests determination to see that substantial evidence supports them (recognizing that the preponderance-of-the-evidence standard applies in the district court). In most cases, however, the facts already found in the fitness phase — proved by clear and convincing evidence — will be the primaiy facts the court relies on for the best-interests determination.
Analysis
I. The District Court’s Fitness Findings Are Supported by Clear and Convincing Evidence.
Mother’s first argument is that there was not clear and convincing evidence to support the district court’s finding that she was unfit and that her unfitness was unlikely to change in the foreseeable future. Mother had stipulated previously that the children were in need of care, and she doesn’t dispute that on appeal. Essentially she argues that while the State’s evidence was true at the time of filing the motion to terminate parental rights, the case had only been pending a short time, and she had not been given enough time to complete the assigned tasks. She also contends that the agencies involved had not made reasonable efforts to reintegrate her with her children.
Once the district court has determined that children are in need of the State’s care, K.S.A. 2013 Supp. 38-2269(a) provides that the court may terminate parental rights if it finds by clear and convincing evidence “that the parent is unfit by reason of conduct or condition which renders the parent unable to care properly for a child and the conduct or condition is unlikely to change in the foreseeable future.” In determining whether a parent is unfit, the court may consider a number of factors set out in K.S.A. 2013 Supp. 38-2269(b) and (c), any one of which may constitute appropriate grounds for termination of parental rights. K.S.A. 2013 Supp. 38-2269(f).
Kansas agency workers had been involved with this family even before the child-in-need-of-care case was filed, and Missouri child-welfare workers had been involved previously. Kansas workers provided sustained assistance from December 2012 through September 2013. Hannan gave Mother the names of agencies that could provide her court-ordered evaluations at little or no cost. But Mother made only minimal efforts over the 10 months the children had been in State custody to take the steps required to regain custody of her children, leading the district court to say that there had not been “one iota” of real movement toward meaningful reintegration of the family. Mother s attendance at parenting classes and some visitations did not move the process forward in a significant way given the other tilings she had failed to do. Accordingly, the evidence strongly supports the conclusion that Mother had failed to adjust her circumstances to meet the children’s needs, that reasonable agency efforts toward reintegration had failed, and that Mother had failed to carry out a reasonable court-approved plan aimed at reintegration.
We recognize that Mother had a different view as to the facts of the case, but we must take the evidence in the light most favorable to the State. In addition, in determining whether Mother’s conduct was likely to change in the foreseeable future, we are to consider “foreseeable future . . . from the child’s perspective, not the parent[’s], as time perception of a child differs from that of an adult.” In re S.D., 41 Kan. App. 2d 780, Syl. ¶ 9, 204 P.3d 1182 (2009); accord In re D.T., 30 Kan. App. 2d 1172, 1174-75, 56 P.3d 840 (2002); see K.S.A. 2013 Supp. 38-2201(b)(4).
II. The District Court Did Not Abuse Its Discretion in Determining That the Childrens Best Interests Supported Termination of Mother s Parental Rights.
Mother s second argument is that the district court abused its discretion in concluding that termination of her parental rights was in the children’s best interests. She agrees in her brief that the best-interests finding should be reviewed for abuse of discretion.
We find no abuse of discretion here. A reasonable person could agree with the district court’s conclusion, and we do not find that the district court’s conclusion was based on any factual or legal error.
At the time the children were removed from Mother’s home, each of the children had serious physical or behavioral problems. After their removal, Mother had failed to obtain a substance-abuse assessment, even though she had tested positive for opiates at the time of A.S.’s birth and had provided one positive UA (while missing other tests). She had failed to obtain other assessments as well, and she had made no progress during the 10 months the case was pending toward providing a stable home for the children. While she made many visits with the children, she also missed several visitations.
Mother also argues that the court failed to consider alternatives to termination. But the court clearly gave consideration to her request for additional time — it simply concluded that there was no reason to believe additional time would produce results, given Mother’s record since the case had begun.
Mother may feel that this opinion seems one-sided against her. We do not mean it to be. She did put forth some effort to comply with the court’s orders; it simply was not enough. Even so, some comments we made in another case are equally true here:
“Cases like this are difficult ones. A parent may be labeled unfit’ under the law even though he or she loves the child and wants to do tire right thing, which may be the case here. But we must judge tírese cases based mostly upon actions, not intentions, and we must keep in mind that a child deserves to have some final resolution within a time frame that is appropriate from that child’s sense of time.” In re A.A., 38 Kan. App. 2d 1100, 1105, 176 P.3d 237, rev. denied 286 Kan. 1177 (2008).
The district court’s fitness findings were supported by clear and convincing evidence, and the court did not abuse its discretion in concluding that termination of Mother’s parental rights was in the children’s best interests. We therefore affirm the district court’s judgment. | [
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The opinion of the court was delivered by
Parker, J.;
This appeal involves the right of a landowner to enjoin another landowner from draining surface waters from the latter’s land and recover damages resulting from an alleged wrongful drainage of such waters. Plaintiff appeals from an order and judgment sustaining a demurrer to his petition.
Since the sufficiency of the petition is the sole issue involved and its allegations detail the factual situation on which plaintiff bases his right to relief such pleading, omitting formal allegations, averments as to damages, the prayer, and a full and complete description of the real estate involved which is all located in the same township and range, will be quoted at length. With the exceptions noted, it reads:
“1. That Plaintiff is a resident of McPherson County, Kansas, and his post office address is McPherson, Kansas, R. D.
“2. That Defendants are residents of McPherson County, Kansas, and their post office address is McPherson, Kansas, R. D.
“3. That at all times hereinafter mentioned the Plaintiff was and still is the owner of certain real estate in McPherson County, Kansas, in Section 32, . . . and was and still is the tenant of the following described real estate . . . to-wit: The West Half (W V2) of the Southwest Quarter (SW %) of Section 29, . . .
“4. That the Defendant, Emmett Burchett, is the owner of real estate in Section 31, ... , and the defendant, Jonas Schrag, is the tenant on said real estate. That said real estate is directly West across the highway from the real estate owned by Plaintiff and is across the road and South of the real estate of which Plaintiff is tenant. That the surface water from rains and drainage collects in large quantities in a low area situated upon the said Burchett land.
“5. That the natural drainage of surface water on the real estate of Defendant, Emmett Burchett, is toward the Southwest, but notwithstanding said fact the defendant, Jonas Schrag, with the knowledge and consent of the defendant, Emmett Burchett, cut a ditch from the low place on the property of the Defendant, Emmett Burchett, running Northeast to the ditch along the West side of the highway and connecting with said ditch; and said Defendant, Jonas Schrag, also deepened the ditch along the West side of said road, towards the North.
“6. That by cutting said ditch the Defendant, Jonas Schrag, changed the course of the natural drainage on said land, and the water from said land is now flowing to the Northeast into said ditch along the road towards the North, and by his act said Defendant has increased the flow of water in said ditch.
“7. That said water flows from the land of defendant, Emmett Burchett, into said ditch along the West side of said road, and flows North along the road to a culvert across said road, and thence a great deal of the water flows East through said culvert and upon said land of which Plaintiff is a tenant, causing great and irreparable damages to Plaintiff as hereinafter set forth.
“8. That by reason of the unlawful act of said Defendant in changing the course of drainage and increasing the flow of water, great quantities of water run onto the land of which Plaintiff is a tenant, thereby interfering with the farming operations of the Plaintiff.
“14. That the damages are continuing to accrue and will continue unless the Defendants are required to close said ditch and restore the drainage to its natural course. That unless required to do so, irreparable damges will be done to Plaintiff, and Plaintiff has no adequate remedy at law.” (Emphasis supplied.)
Before giving consideration to the propriety of the trial court’s action in sustaining the demurrer to the foregoing petition it should be stated that under the common law surface water was regarded as a common enemy landowners could fight in any way they chose without liability. Such was the rule in this jurisdiction until 1911. In that year the legislature saw fit to change it by the enactment of chapter 175, Laws of 1911, now G. S. 1935, 24-105 and 24-106, which makes provision for the disposition of surface waters so that their obstruction or accumulation does not operate to the injury of neighboring land and in general provides that as to agricultural lands outside the incorporated limits of a city upper proprietors may not divert surface waters upon their own premises by artificial means to the lands of lower proprietors nor accelerate by means of ditches or increase the drainage of their lands to the injury of lower owners (see Martin v. Lown, 111 Kan. 752, 208 Pac. 565; Dyer v. Stahlhut, 147 Kan. 767, 78 P. 2d 900; Bollinger v. Moorhouse, 154 Kan. 124, 114 P. 2d 853).
Appellees concede the general legal principle heretofore stated is the law of this state but point out it is qualified by G. S. 1935, 24-106, authorizing drainage of lands by landowners without liability under certain conditions and circumstances and assert the instant petition shows upon its face they come within the exception therein recognized with the result it fails to state a cause of action against them. Such section reads:
“Owners of land may drain the same in the general course of natural drainage, by constructing open or covered drains, into any natural depression, draw, or ravine, on his own land, whereby the water will be carried by said depression, draw, or ravine into some natural watercourse, or into any drain upon a public highway, for the purpose of securing proper drainage to such land; and he shall not be liable in damages therefor to any person or persons or corporation: . . .” (Emphasis supplied.)
Boiled down the gist of appellees’ position is that it appears from the petition the ditch constructed by them for drainage purposes drained their land in the general course of natural drainage in the manner and under the conditions permitted by the section of the statute just quoted. More specifically stated, they claim the allegations of paragraph 7 of such pleading, conclusively establish the general course of natural drainage of their land is to the northeast notwithstanding other averments thereof, which we have underlined for purposes of emphasis, expressly state the natural drainage of surface waters thereon is to the southwest and directly charge that appellees’ action in digging the ditch to the northeast changed the course of natural drainage. No useful purpose would be served by laboring the ingenious arguments advanced by appellees in support of this conclusion. It will suffice to say that as applied to the involved petition they are founded upon speculation and conjecture, ignore the elementary and well-established rule that in the absence of any motions whatsoever a petition when challenged by a demurrer is liberally construed and given the benefit of all reasonable inferences, and refuse to give clear and un equivocal allegations of such pleading the force and effect to which they are entitled. It may well be that when issues are joined and the cause proceeds to a trial on its merits appellees may be able to establish the general course of natural drainage is as they now contend. Even so, in the face of express and direct allegations to the contrary we cannot say the petition fails to state a cause of action under the general principle of law first referred to in this opinion.
The trial court erred in sustaining the demurrer and its order and judgment to that effect should be set aside.
The judgment is reversed. | [
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The opinion of the court was delivered by
Smith, J.:
This was an action for damages for the wrongful death of plaintiff’s son alleged to have been caused when an automobile in which he was a passenger collided with a streetcar of defendant. Judgment was for plaintiff. Defendant appeals.
The petition alleged that plaintiff was the mother and next of kin of Henry E. Leonard, who was single, never married and left no issue; that her son was killed April 6, 1946, and no personal representative had been appointed for his estate; that defendant operated a streetcar system in Kansas City, Kan., and one Bennett was the operator of one of its cars; that Minnesota avenue is an east-and-west street in Kansas City and Tenth street intersects it at right angles; that on Minnesota avenue there are two streetcar tracks, one for eastbound traffic and one for west; that at the southeast corner of the intersection there are two tracks curving to the southwest, connecting with rails laid on Tenth street by means of which cars from the tracks on Minnesota avenue may be switched to these tracks and thence on Tenth street to car barns maintained by defendant; that about 12:30 a. m., April 6, 1946, Henry E. Leonard was driving an automobile east on Minnesota avenue at about twenty-five miles per hour and when he had reached about the east side of the intersection a streetcar which had been headed east with its rear portion just east of the intersection suddenly without warning backed into the curved tracks about eight feet into the path of the automobile plaintiff’s son .was driving and he was fatally injured. The petition then alleged what deceased had been earning, and that at the time there was parked diagonally at the south curb of Minnesota avenue about fifteen feet east of the intersection with its rear extending into the street an automobile, leaving room for but one automobile to pass in the traveled portion of Minnesota avenue between the streetcar and the south curb. The petition then listed six specific acts of negligence on the part of the defendant, that is, failing to keep a lookout; failing to observe the approaching automobile; suddenly backing into the street against the automobile without ascertaining if that could be done with safety; failing to warn the driver of the car of intention to back; failing to have the car equipped with proper controls; failing to have a flagman at the intersection. After an allegation as to funeral expenses judgment for $10,000 was asked.
The first defense pleaded was a general denial. The second defense pleaded was that the street and the car were well lighted; Henry E. Leonard was driving sixty miles per hour; the car was stopped at the time of the collision, and had Leonard been traveling twenty miles per hour the collision would not have killed him; at the rate of speed at which he was traveling collision with the parked car would not have killed Leonard; Leonard by operating his automobile at a rate of twenty miles per hour could have avoided his death; he could have avoided the collision by turning a little bit to the right or slowing down by turning down Tenth street.
The answer further alleged that if Leonard could not have saved his life by exercising care in those matters because of the speed of his car, then he was negligent in operating his automobile at such a rate of speed that he could not control it.
The reply was a general denial.
There were some pretrial motions, which will be dealt with later on in this opinion. Before trial the action was dismissed as to the operator of the streetcar and went forward against the Public Service Company only.
The first witness was a sister of deceased, who testified as to his earnings while alive and contributions to his mother, the plaintiff.
A sergeant of police testified that Leonard was unconscious and that they moved him from the automobile; there was some blood but witness did not know where it came from and sent him to the hospital; there was a car parked at an angle at the south curb of Minnesota avenue; the automobile’s left wheel was under the street car; the wheel of the automobile was against the southwest wheel of the streetcar, and the switch was eight or ten feet east of that; there was about six feet between the streetcar and the parked car to the south of it.
At the close of plaintiff’s evidence defendant demurred to it, first, because it showed no negligence against defendant; second, it showed Leonard was guilty of contributory negligence and failed to show that Leonard’s death was caused by the collision. Another ground urged was that the action was brought by Leonard’s mother alone and it should have been brought by her and the administrator of her husband’s estate, since he was dead. This demurrer was overruled.
The defendant introduced evidence as to the measurements of the street; the dimensions of the streetcar and that the automobile was traveling at a much greater rate of speed than witness for plaintiff had testified to.
The jury was duly instructed, the case was submitted and a verdict returned for $4,625. Special questions were answered, as follows:
“1. Could the deceased, Henry Leonard, by the exercise of ordinary care have turned the automobile he was driving a little farther to the right so as to miss the street car and thereby save his life? A. No.
“2. State whether the streetcar was standing or was moving at the time of the collision. A. Standing.
“3. At what speed was Henry Leonard driving the automobile (a) at the time he entered the intersection .of Tenth and Minnesota; (b) at the time of the collision?
A. (a) 30 miles per hour.
(b) 20 miles per hour.
“4. Was the streetcar lighted, and did it have red lights burning on the west side of the car at the time Henry Leonard with his automobile approached and collided with the streetcar? A.' Yes.
“5. At the time of the collision how far did the southernmost portion of the streetcar overhang to the south of the south rail of the eastbound main tracks? A. 3 feet.
“6. What was the distance from the south track of the eastbound car to the south curb of Minnesota Avenue? A. 26 feet 10 inches.
“7. Do you find from the evidence that the defendant' was guilty of negligence that was a proximate cause of the death of Henry Leonard? A. No.
“8. If you answer the foregoing question ‘Yes,’ then state specifically what such negligence was. A. None.
“9. Did the defendant provide a flagman or watchman to warn or control traffic at said intersection while said streetcar was being backed around and across said portion of said intersection? A. No.
“10. Was any signal or warning given by the defendant to the driver of said automobile of said operator’s intention to back and turn said streetcar onto said curve? A. No.
“11. If'you answer the previous question in the affirmative (a) State how far away the Leonard car was at the time thereof; and (£>) State what signal or warning was given. A. (a) None; (b) None.
“12. Did the motorman keep a lookout for the rear of said street car for vehicles approaching from the rear of said street car, immediately prior to and while backing up said street car? A. No.
“13. If you answer the previous question in the affirmative, state at what distance away the motorman first observed the approaching Leonard car. A. None.
“14. Was there anything to prevent the motorman from seeing the Leonard car approaching? A. No.
“15. If you answer the previous question in the affirmative state what if anything prevented the motorman from seeing said car approaching. A. None.”
The defendant filed a motion for judgment on the special findings notwithstanding the general verdict and for arrest of judgment.
The plaintiff filed a motion to strike out the answer to question No. 7, also a motion to approve the general verdict and to enter judgment. On the same day plaintiff filed a motion for a new trial. This motion was later withdrawn. The defendant filed no motion for a new trial. The trial court overruled defendant’s motions, sustained plaintiff’s motion to strike out the answer to question No. 7 and entered judgment for plaintiff in accordance with the verdict.
The defendant has appealed and assigns as error, first, the overruling of its demurrer to plaintiff’s evidence; second, overruling its motion for judgment on the answers to special questions; third, setting aside the answer to special question No. 7; fourth, entering judgment on the general verdict after setting aside the answer to question No. 7; fifth, entering judgment for plaintiff for the full amount when under any circumstances she was entitled to only half of it; sixth, overruling the motion of defendant to continue the cause binding revivor; seventh, failure to revive as to the deceased plaintiff, Harry A. Leonard, the deceased father of Henry Leonard; and eighth, allowing amendments to the pleadings without first having revived the action.
We shall consider first defendant’s demurrer to plaintiff’s evidence. The grounds of this demurrer are fourfold. Defendant argues first that this demurrer should have been sustained because there was no substantial evidence that the collision caused Leonard’s death; second, the plaintiff’s evidence proved Leonard to be guilty of contributory negligence as a matter of law; third, defendant was not shown to be guilty of any negligence that was the proximate cause of the death of Leonard; and fourth, there was a fatal variance between the allegations in plaintiff’s petition and her proof as to whether she was the proper party.
We have recited heretofore the essential facts as to Leonard’s condition. He was taken out from behind the steering wheel unconscious, laid on the ground, placed in an ambulance, and died within half an hour on his way to the hospital. There were no broken bones, caved-in skull, cut throat or any other outward signs or marks of injury. One witness testified that he was unconscious when the automobile stopped, he was taken out of it, laid on the ground, put in an ambulance and died in it within half an hour on his wa,y to the hospital. He was twenty-five years old; had just been discharged from the navy; his health was good and he had been dancing that night. The evidence offered by plaintiff was that the automobile was traveling at about twenty miles per hour when it hit the streetcar. Defendant states it is unreasonable and impossible to believe that such a blow at such a low rate of speed softened by the sliding forward of the automobile eight feet could produce the death of a man sitting behind the steering wheel, as was deceased. Defendant cites a line of authorities where we have held that a fact is not proved by circumstances which are merely consistent with its existence. A fact such as that of the collision caused Henry E. Leonard’s death may be proved by circumstantial evidence, just as may any issue of fact. In the consideration of a demurrer to plaintiff’s evidence we will not weigh conflicting testimony and we will indulge all reasonable presumptions and draw all reasonable inferences in favor of the plaintiff. Defendant points out testimony that the father of deceased died of heart failure a short time before the trial and argues that it is as reasonable to believe that deceased died as the result of a heart attack as to believe that he died as a result of the collision. The rule is stated in 17 C. J. 1309, as follows:
“. . . it is sufficient to prove a wrongful act or omission on the part of defendant, adequate to produce the injury, without negativing all possible suggestions of the existence of other causes. Proof beyond a reasonable doubt is not required; a preponderance of the evidence is sufficient, and this may consist of circumstantial evidence. . . .”
We treated this question extensively in Noller v. Aetna Life Ins. Co., 142 Kan. 35, 46 P. 2d 22. There we passed on the question of which one of two people found dead in bed together died first. A demurrer to the plaintiff’s evidence had been sustained. In the course of that opinion we said:
“In doing that we must say that if there was any theory upon which the jury might have concluded that Mrs. Hammatt survived, drawing from each proven fact and circumstance the inference most favorable to the contention that she did survive, then the demurrer should have been overruled and the case should have been submitted to the jury.” (p. 38.)
In following that rule we will consider that deceased was a healthy twenty-five-year-old man. The automobile he was driving collided with a streetcar with enough force to wreck the automobile. He never regained consciousness and died half an hour later. It is true that the other passengers in the automobile were not killed or even badly injured. We cannot account for the vagaries of automobile collisions. There was substantial evidence, measured as we do evidence on a demurrer to the evidence, that Leonard’s death was caused by the collision.
Defendant next argues that its demurrer should have been sustained because it showed that Leonard was guilty of contributory negligence as a matter of law. To this connection defendant urges that deceased should have slowed down, stopped or turned aside and thereby avoided colliding with the streetcar. The passenger who was riding in the front seat with deceased testified that the car was going about twenty to thirty miles per hour and as they approached the intersection they saw a car crossing Minnesota avenue and a car on the eastbound tracks headed east; that Leonard was driving east “a straddle” of the south rail of the eastbound track. He saw the car eastbound and turned to the right of the streetcar to go between it and the parked car on Minnesota avenue, when the streetcar backed up suddenly and hit the automobile. Witness was then thrown out and deceased was pinned in and a couple of men got him out. The back end of the streetcar struck the left front fender of the automobile. On cross-examination he testified that the lights were on in the streetcar and he did not see it until after the northbound car had crossed Minnesota avenue, the place Leonard made the turn to get off the streetcar track was about the west curb of Tenth street. He testified that the streetcar might have been stopped at the time of the collision but he had thought it was moving. At the time they arrived at the intersection he thought the streetcar was moving east or stopped; that it ceased moving east when the automobile arrived about the middle of Tenth street; it was then the car ceased moving east; stopped and then backed eight or ten feet. In addition there was clear evidence as to the nature of the side track; that the streetcar was actually on the side track a few feet; that if it was not actually moving west on an eastbound track at the time of the collision it had been so moving at only an instant before. One traveling east on the street would in the exercise of his judgment expect the streetcar to keep on moving east. Deceased did, as he entered the intersection, slow up and did pull to the right in an effort to go between the streetcar and the parked car. It is a fair assumption that he would have been successful in this had the streetcar not at the instant before backed up. Deceased was only required to act as an ordinary reasonable man would have acted under similar circumstances. It was a question for the jury whether his conduct reached that standard.
Defendant next argues that its demurrer should have been sustained because it failed to show it was guilty of any negligence that was the proximate cause of the collision. The evidence that has been heretofore set out bears on this question. Furthermore, there was evidence that the streetcar suddenly backed into the path of the automobile without warning. Whether it was stopped or moving slowly at the very instant of the impact is of small moment. The point is it backed suddenly into the path of the automobile when the ordinary reasonable man would expect it to move forward. There was substantial evidence also that the motorman in charge of the streetcar failed to keep a lookout; that there were no signals or warnings given and no watchman.
Defendant next argues that its demurrer should have been sustained because there was a fatal variance between the allegations of plaintiff’s petition. At the outset of our discussion of this point it is proper to note that defendant did not file a motion for a new trial so it cannot urge trial errors here on appeal.
This argument of defendant requires us to state some facts about which there is no dispute. This action was originally brought in the name of Harry Leonard, the father of deceased. Defendant demurred to the petition and the demurrer was sustained, whereupon an amended petition was filed in the name of Harry Leonard, the father, and Gertrude, the mother, and stating they were the next of kin of deceased and that no administrator had been appointed for his estate. The issues had been made up and the cause was ready for trial. A short time before trial time Harry Leonard, the father, died. Gertrude T. Leonard filed a motion to revive the father’s portion of the action. This motion was resisted by the defendant and the trial court denied the revivor. When the case was called for trial she insisted she was entitled to have her portion of it tried and as far as the father’s interests were concerned she could act in a representative capacity and account to herself and her four children, who would inherit whatever interest the father might have, but in any event she was entitled to have a trial of her portion of the lawsuit and entitled to recover for such pecuniary loss as she herself had suffered. By permitting her to make a series of formal amendments the trial was carried on under that theory. The way defendant gets at this in arguing a demurrer to the evidence is to point out that the petition stated positively that she, Gertrude Leonard, is the mother and next of kin of Henry E. Leonard and then Gertrude herself testified that Harry Leonard, her husband and also the father of deceased, died and left four children surviving him.' It should be stated that these four children were also the children of plaintiff. The real burden of plaintiff’s argument on this point is that when Harry Leonard died the action could only be carried on by a joint action in the name of the administrator of his estate and the present plaintiff. Defendant relies in a large measure upon a provision of the wrongful death statute (G. S. 1935, 60-3204), where it is provided, in pa,rt, as follows:
“That in all cases where ... no personal representative . . . has been appointed, the action . . . may be brought by the widow, or where there is no widow, by the next of kin of such deceased.”
The theory upon which plaintiff carried on the action was that when she brought the action and sought to recover only the damages to which she herself was entitled, counsel so advised the court and there can be no doubt that she was the only one of the family who had sustained a loss. There are some authorities to the effect that under such circumstances Gertrude T. Leonard might bring an action to recover for loss and later her husband’s personal representative might bring one to recover whatever damages he had sustained. We are not called on to deal with that question here, however. The action was not revived in the name of the personal representative of the husband and it is too late to do that now. As far as the loss sustained by the plaintiff is concerned she was entitled to litigate that in her own name.
The defendant’s demurrer to the plaintiff’s evidence was properly overruled.
Defendant next argues that the trial court erred in not entering judgment on the jury’s answer to question No. 7 and in setting aside the answer to that question. That question and answer will be set out again here. It was as follows:
“7. Do you find from the evidence that the defendant was guilty of negligence that was a proximate cause of the death of Henry Leonard? A. No.”
The plaintiff moved to set aside the above answer on the ground that it was a conclusion and not a finding of fact and was a complex question containing more than one question and was contrary to the evidence. Defendant argues this point here and states that the trial court sustained the motion to strike it because the answer was inconsistent with the general verdict and with the answers to other special questions. It meets this with authorities where we have held that where the answers to special questions conflict with the general verdict the special answers control. The fact is the argument of whether the answer to the question should be stricken was based on authorities where we have held that such a question calls for the conclusion of the jury as a matter of law rather than a finding on a question of fact. G. S. 1935, 60-2918, defines a special verdict. It provides, in part, as follows:
“A special verdict is that by which the jury finds facts only. It must present the facts as established by the evidence, . . . and they must be so presented that nothing remains to the court but to draw from them conclusions of law. ... at the request of the parties thereto, or either of them, in addition to the general verdict, direct the jury to find upon particular questions of fact. . . .”
We presume nothing in favor of a special verdict. (See Morrow v. Bonebrake, 84 Kan. 724, 115 Pac. 585.) In fact, it is our practice to harmonize them with each other and with the general verdict if possible. (See Leinbach v. Pickwick-Greyhound Lines, 138 Kan. 50, 23 P. 2d 449. See, also, Sams v. Commercial Standard Ins. Co., 157 Kan. 278, 139 P. 2d 859.) In Harrison v. Travelers Mutual Cas. Co., 156 Kan. 492, 134 P. 2d 681, the jury in answer to special question No. 12 said the driver was not guilty of any negligence which was one of the proximate causes of the collision. There were other answers that conflicted with this. The plaintiff argued that the answer to question No. 12 settled the matter of his contributory negligence. We disagreed with this argument and said:
“With that contention we cannot agree. The finding is definitely general in character and is in the nature of a conclusion. It is an expression of the jury’s conclusion from facts found in detail. (Koster v. Matson, 139 Kan. 124, 134, 30 P. 2d 107.) Such general findings or conclusions, if contradicted by special or detailed findings cannot prevail but are controlled by, and must yield to, the special or detailed findings of ultimate facts.” (p. 498.)
Long v. Shafer, 164 Kan. 211, 188 P. 2d 646, was an automobile collision case. There was judgment for the plaintiff and on appeal the defendant argued, among other things, that the trial court erred in refusing to submit certain requested special questions. Among these was the following:
“What was the proximate cause of the collision?” We said:
“This calls for a conclusion as distinct from a finding of fact. The facts which show the proximate cause of the collision were found by the jury in its answers to questions 7 and 12, which were submitted. ... The answers to questions 3 and 4 indicate that it was not. Considering the questions submitted and the answers thereto we think it was not error for the court to refuse to submit these specific questions.” (p. 214.)
See, also, Eldredge v. Sargent, 150 Kan. 824, 96 P. 2d 870. In the case at bar the jury found no watchman was at the intersection, no signal was given by defendant to the driver of the car of the operator’s intention to back; the motorman did not keep a lookout for vehicles approaching from the rear. These were all acts of negligence pleaded in the petition. They were specific facts from which the court could determine whether they or any of them were the proximate cause of the collision. This was called to the court’s attention when the motion to strike was argued. The trial court ruled correctly in sustaining the motion to strike it. Once this finding was stricken there was nothing at all in the answers to special questions upon which to base a motion for judgment for defendant notwithstanding the general verdict.
Defendant next argues that the trial court erred in entering judgment for plaintiff after setting aside the answers to special questions because there still remained undetermined in the case an unsettled issue of whether it was guilty of any negligence that was the proximate, cause of the injury and the trial court in proceeding to render judgment virtually found for the plaintiff and deprived the defendant of its right of trial by jury on that question. This argument is not good. What the trial court did was to substitute its judgment for that of the jury on the question of whether the acts of negligence proved were the proximate cause of the collision. No question of fact was taken from the jury.
Other errors urged by defendant are governed by what has already been said.
The judgment of the trial court is affirmed.
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The opinion of the court was delivered by
Arn, J.:
This is a consolidation of three cases originating in the police court of the city of Wichita. Separate complaints in police court charged all three defendants with “keeping and having possession of gambling equipment, to-wit punch boards,” in violatoin' of section 33 of city ordinance No. 11-592. They were convicted in police court and each of the three appealed to the district court of Sedgwick county. There the three appeals were consolidated and tried de novo by the court without a jury. The district court acquitted defendants Ellis George Stevens and Frank Solomon, but found Nick S. Stevens guilty of violating section 33 of city ordinance No. 11-592. The record indicates the district court determined as a matter of law with regard to all three defendants that their possession in a warehouse or wholesale house of punchboards without prize merchandise attached to them was not a violation of section 33 of city ordinance No. 11-592.
Some of the punchboards found in the possession of defendant Nick Stevens did have merchandise attached to them and this, the district court held, was a violation of the city ordinance. Such punchboards were ordered confiscated and destroyed and Nick Stevens was found guilty of violating the ordinance. Nick Stevens also had in his possession punchboards which did not have merchandise attached to them.
For the purpose of settling the legal question involved, the city attorney, on the day the journal entry of judgment was filed in the district court, made and filed an affidavit pursuant to section 13-613, G. S. 1935, stating the question reserved for decision by the supreme court as follows:
“Was the defendant in the above cause, who admittedly owned and had in his possession in a warehouse, located in the City of Wichita, Kansas, punch boards, described and introduced in evidence in the above entitled case, to-wit: Punch boards having no merchandise or money attached thereto, guilty of a violation of Section 33 of Ordinance. No. 11-592.”
Also on the same day, the city served upon defendants notices of its appeal to this court stating that the city was appealing from the district court’s order and decision—
“that section 33 of Ordinance No. 11-592 of the City Ordinances of the City of Wichita does not apply to cover possession of punch boards in a warehouse or wholesale house, said punch boards being of the variety to which no merchandise is directly attached thereto.”
The record before us shows the uncontroverted evidence to be that all three appellees are wholesale distributors or jobbers of tobacco, cigarettes, novelties, candy, sundries, and similar merchandise, with places of business in the city of Wichita; that police officers found a large quantity of punchboards of various sizes, types and brands at the place of business of each appellee; that none of the appellees operated the punchboards themselves, nor permitted them to be operated on their premises, but merely sold them to others over their territory comprising about one-third of the state; that they had handled punchboards for resale for twenty years and sold them as any other merchandise; that many of the punchboards taken by police were on the shelves of appellees’ places of business in sealed cases — others were open and lying on the shelves; that none of the punchboards had merchandise attached to them except two boards taken from Nick Stevens’ place of business and received in evidence as exhibits 4 and 5. Exhibit 4 had merchandise, such as small pen lights, a fountain pen holder and a cigarette case attached to it. The record refers to some nineteen exhibits offered by the city and at least four by these appellees. One exhibit is referred to as just a plain board with no writing or printing upon it, while exhibit 19 had printed upon it “5 cents a punch, 133 winners, 80% pay out.” The writing on the back of exhibit 19 claimed for the board “a definite profit of $20.00.” The writing on exhibit 1 indicated it was five cents a punch and in order to win, the number punched must conform to a number appearing upon the face of the board. Other exhibits reproduced for the record bear upon their faces the following instructions and information:
Plaintiff’s Exhibit No. 2
8" X 12"
254 A Play $1.00 Jackpot Charley 170 Winners 25 4 A Play
5-15-25-35-45-55-65-75 Jack Pot Pays 10-20-30-40-50-60-70
85-95-105-115-125-135 $25.00 80-90-100-110-120-130
145-155-165-175-185-195 or 140-150-160-170-180
205-215-225-235-245-255 $5.00 190-200-210-220-230
265-275-285-295-305-315 13-113-213 240-250-260-270-280
325-335-345-355-365-375 313-413-513 290-300-310-320-330
385-395-405-415-425-435 Each Receive 340-350-360-370-380
445-455-465-475-485-495 390-400-410-420-430
505-515-525-535-545-555 440-450-460-470-480
565-575-585-595-605-615 Punch in 490-500-510-520-530
625-635-645-655-665-675 Jackpot 540-550-560-570-580
685-695-705-715-725-735 590-600-610-620-630
745-755-765-775-785-795 640-650-660-670-680
805-815 690-700-710-720-730
(On the back it says) “Your Punch Here” Punches 740-750-760-770-780 790-800-810-820
Plaintiff’s Exhibit No. 9
8" X 12"
Picture Cigarette Sale 14
Number 100 Receives 60 Cigarettes
Numbers 200-400 Each receive 40 Cigarettes
Numbers 50-75-150-175-250-275-350-375 450-475-550-575-650-675-750-775 850 Each receive 20 Cigarettes Last sale in each section receives 20 Cigarettes
Punches
Plaintiff’s Exhibit No. 12
10" X 4"
5 4 Bucks & Quarter Bucks
Nos. 10-20 Numbers Nos. 260-270-280
30-40-50 100-200 290-310-320-330-340
60-70-80 300-400 350-360-370-380-390
90-110 500 410-420-430-440-450
120-130 Each Receive 460-470-480-490
140-150 $1.00 Each Receive
160-170 25 4
180-190
210-220
230-240
250
Each Receive
25 4 Punches
Last Hole on Board Receives $1.00
There being no dispute as to the facts narrated above, there was before the trial court only the question of law as to whether possession in a warehouse of the punchboards introduced in evidence and having no merchandise attached to them was a violation of the city ordinance. Before considering this question which the city has reserved for determination by this court, we are presented with the preliminary question as to whether this appeal should be dismissed because of appellant’s neglect to set forth in the abstract formal specifications of error in accordance with Rule 5 of this court. The obvious purpose of Rule 5 is to advise this court and the appellees of the specific issue to be considered upon appeal. There was no formal compliance with this rule by appellant, but we have been lenient in this respect particularly where the record discloses that only a single issue is involved and where appellees could not have been misled by such omission. The city, in an affidavit by the city attorney and in the notices of appeal appearing in the abstract, specified a single question of law for consideration by this court. It could be argued that this affidavit reserving a single question and the reference to it in the notices of appeal does make a specific assignment of error of the very question which is briefed and argued by both parties. Under these circumstances, we will again indulge an attitude of leniency in this respect and will consider the appeal upon its merits.
We come now to the question as to whether section 33 of city ordinance No. 11-592 prohibiting the possession of punchboards is violated by persons engaged in a wholesale business who stock such punchboards as wholesale merchandise and have them on the shelves of their warehouses solely for resale. The city ordinance provides:
“Any person who shall set up or keep or have in his possession in any public or private place in The City of Wichita any ‘punch board’ or ‘slot machine’ or other gambling device, devised .or designed for. the purpose of playing any game of chance for money or property, including ‘punch boards,’ ‘slot machines’ or any other gambling device wherein money or goods are received with every punch board, but the amount to be paid depends upon the number punched, played or drawn, or where a capital prize or any additional prize may be received or where tokens are received, or any person who shall induce, entice or permit any person to bet or wager or pay money upon any such ‘punch board,’ ‘slot machine’ or any other gambling device or devices as above described, shall be deemed guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than One Hundred ($100.00) Dollars nor more than Three Hundred ($300.00) Dollars or by im prisonment in the City Jail for not less than thirty days nor more than one year, or by both such fine and imprisonment.” (Emphasis supplied).
We have difficulty in concluding, as was concluded by the trial court, that the merchandise being attached to the punchboards makes them any more objectionable under the ordinance than without it. Punchboards such as those involved here are gambling devices, whether or not there is attached to them merchandise, money or prizes. Punchboards without such thing of value attached are punchboards none the less. They have no use or purpose other than for gambling, and recognizing this, the city enacted an ordinance making their possession unlawful. A gambling device is any instrument adapted and designed to play any game of chance for money or property. (Boynton v. Ellis [10th CCA] 57 F. 2d 665.) Under its police powers the city had authority to prohibit -the possession of punchboards just as it had authority to prohibit the possession of slot machines. Both such devices are prohibited by section 33 of city ordinance No. 11-592, and this identical ordinance was held constitutional in Clemons v. Wilson, 151 Kan. 250, 98 P. 2d 423, which involved the possession of slot machines. Neither does the ordinance make any distinction between punchboards located in a warehouse or wholesale house and those under or upon the counters of retail stores or shops. Their possession in any jmblic or private place is made unlawful. The city ordinance in question should have been construed to prohibit the possession of punch-boards with or without merchandise or prizes attached, and whether located in warehouses, wholesale houses/ or any other place.
Appellees say “the case at bar is one of fact and not one of law.” But the ordinance under consideration prohibits punchboards, slot machines, and other gambling devices. Under such an ordinance there was no occasion to determine as a question of fact whether punchboards were or were not gambling devices. In any event they were an instrument which the city determined was detrimental to the peace and welfare of the city, and within its police power the city may prohibit possession of them. We said earlier in this opinion that they were gambling devices — and by that description the ordinance further prohibits possession. The question here is one of law to construe and apply the plain language of a city ordinance.
Having been prosecuted and acquitted, appellees say that they have been in jeopardy and cannot be tried again, and that' any order now made by this court would be moot insofar as they are concerned. Be that as it may, there is now before this court a question of law properly reserved by the city attorney pursuant to section 13-613, G. S. 1935. In State v. Reed, 145 Kan. 459, 65 P. 2d 1083, section 62-1703, G. S. 1935, was involved and the third ground for appeal by the state provided for in that section is quite like the third ground of section 13-613. There the defendants were acquitted of violating the motor carrier act and the state appealed upon a question of law properly reserved under section 62-1703, G. S. 1935. This court considered the appeal upon its merits and did no more than sustain the state’s appeal. In doing so, we said:
“The state brings the case here on questions reserved as permitted by statute, G. S. 1935, 62-1703, and in accordance with well-established precedents (citing cases), (p.460.)
“This right of the state to reserve questions for appellate review is an important one, frequently transcending what may be involved in the particular instance giving rise to those questions.” (p.461.)
The statutory right of appeal conferred upon the state, or a city, is to aid in the uniform administration of justice. But for these statutory rights of appeal, penal statutes and ordinances might be properly interpreted in some jurisdictions and in others they might be judicially nullified by erroneous interpretations. The city properly reserved for appeal to this court the question of whether the trial court erroneously interpreted the city ordinance. As we have stated above, the court below erred in holding that the ordinance in question did not prohibit the possession of punchboards without merchandise, money or prizes attached thereto. The appeal by the city of Wichita on the question reserved is sustained. It is so ordered. | [
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The opinion of the court was delivered by
Wedell, J.:
This was an equitable action to compel one stockholder to comply with an option contract to sell to another stockholder in the same corporation shares of stock, after the plaintiff had exercised the option to purchase. The action was tried by the court without a jury. Judgment and special findings were all in favor of the plaintiff and the defendant appeals.
The Pabco Drilling Company, issuer of the stock, was made a party defendant for the purpose of giving it notice of the action and in order that a proper transfer of the stock might be effected. It was directed to issue the stock in question to plaintiff. The corporation is not appealing.
We shall hereafter refer to the appellee, W. G. Talbott, and to the appellant, Claude A. Nibert, by name, and to the company as the corporation.
A chronological statement of pertinent facts will'be made first. Other facts, where necessary, will be treated under contentions of the parties. In 1946 the corporation was in bad financial straits. Its sole asset was a $40,000 drilling rig which was subject to a $23,-000 mortgage. The corporation had other debts and could not meet its obligations. At one(time prior to the granting of the option contract in question to Talbott it seems D. J. Briggs, another stockholder, desired to acquire an option to purchase Nibert’s twenty-eight shares of stock. Talbott had learned that certain parties, for whom the corporation had drilled, refused to do further business with it if Nibert was connected with its affairs. Talbott was a geologist and oil operator. He had various business interests and contracts with the oil industry. He refused to invest additional capital in the corporation and to give his time to its development unless he could acquire the majority of the stock and control the business policies of the corporation. The acquisition of Nibert’s stock would give him that control. Under this state of facts Briggs concluded to confer with Nibert for the purpose of getting Nibert to grant Talbott an option to purchase Nibert’s stock.
On October 29, 1946, Nibert gave Talbott a written option which read:
“For and in consideration of One Dollar, receipt of which is hereby acknowledged, and for other valuable consideration, I hereby grant and give W. G. Talbott, of Wichita, Kansas, an option for one year from this date to purchase the 28 shares of Padco Drilling Company stock which I own for the sum of 85,000.
“This option may be exercised at any time during the following year and if not taken up before October 28, 1947, same shall become null and void.”
The option was witnessed by D. J. Briggs.
In December, 1946, the financial condition of the corporation required it to make a stock assessment. Nibert was unable to meet the assessment. In lieu thereof he surrendered five shares of his stock to the corporation in order to effect a release of the assessment lien on his stock covered by the option. At the time the corporate assessment was made Nibert and Talbott agreed the option price should be proportionately reduced as to Nibert’s remaining twenty-three shares of stock, thereby reducing the option price to $4,107.34. On that basis each share was evaluated at $178.58.
Several conferences were had between Nibert and Talbott in which the value of the remaining twenty-three shares was discussed. At a conference for that purpose in January those present in addition to Nibert and Talbott were Briggs, Van Sickel, secretary of the corporation, and John Blood, a stockholder.
Later in January, 1947, Nibert inquired of Talbott whether Talbott was going to take up the option and not make him wait a year for his money. In the same month Nibert granted Talbott a written proxy to vote the twenty-three shares of stock. The option contract was never revoked by Nibert. It was recognized as being in full force and effect and had been modified by the agreement of the parties to reduce the shares covered by the option from twenty-eight to twenty-three in order to meet the stock assessment made in December, 1946. On June 9,1947, Talbott exercised the option in writing and tendered $4,107.34 to Nibert, that being the value of the remaining twenty-three shares at $178.58 per share according to the agreement when the stock assessment was made.
Talbott’s contacts with oil operators and business concerns had provided profitable drilling contracts for the corporation. He had personally paid off the $23,000 mortgage on the drilling rig. He had also procured drilling work for the corporation on leases in which he had an interest. The twenty-eight shares of stock at the time the option was given in October, 1946, were worth $2,520 or $90 per share. Largely, if not entirely, by reason of Talbott’s investment, his business contacts and ability the shares of stock had increased in value somewhat in excess of $7,000 or $250 per share by the time Talbott exercised the option on June 9,1947. That valuation did not include some potential production of wells, the value of which was speculative.
The facts thus far stated do not appear to be disputed but if there was any contrary evidence the conflict was resolved in favor of the plaintiff, Talbott, by the general judgment and also by the special findings of the court, as will presently appear.
Although other defenses were originally pleaded by Nibert it was agreed by his counsel at the trial that only the following three issues remained for trial: (1) Nibert contended that prior to giving Talbott the option contract it was orally agreed that Talbott would not exercise it if Nibert refrained from interfering with the corporate management; (2) Nibert contended he had given the written proxy to Talbott to vote his stock with the previous oral understanding that if he gave it Talbott would not exercise the option; (3) in defense of Nibert’s breach of the option contract he contended he was not compelled to comply with it for the reason that no notice had been given to other stockholders of the corporation concerning the sale of the stock to Talbott, which notice Nibert claimed the bylaws (it is agreed he meant charter) of the corporation required.
In response to an inquiry from the trial court counsel for Nibert conceded the burden of proof on those issues rested on Nibert. He accordingly assumed that burden and adduced his evidence first. Talbott demurred to that evidence. The demurrer was overruled. Talbott adduced his evidence. He had denied the alleged oral contract claimed by Nibert in No. 1 above and had objected to the competency of Nibert’s evidence pertaining thereto. The objection was sustained and that point will be treated later. The trial court admitted evidence touching the alleged oral contract mentioned in No. 2 above. The evidence was conflicting. The trial court expressly resolved that conflict against Nibert. The court made findings of fact and conclusions of law in which all issues were resolved against Nibert, as follows:
“Findings or Fact.
“1. On or about October 29, 1946, defendant Nibert executed and delivered to the plaintiff a written option to purchase Nibert’s 28 shares of stock in the Pabco Drilling Company for $5,000 on or before October 27, 1947.
“2. In December, 1946, five of Nibert’s 28 shares of stock were canceled by general corporate assessment. At that time Nibert and Talbott agreed the option price should be proportionately reduced as to Nibert’s remaining 23 shares of stock, thereby reducing the option price to 84,107.34.
“3. There was no agreement or understanding between Nibert and Talbott that in consideration of Nibert’s granting Talbott a voting proxy in January, 1947, Talbott would not exercise the option. The option was never revoked by Nibert, but was still outstanding according to its terms on June 9, 1947 (except as modified by the December, 1946, agreement).
“4. On June 9, 1947, Talbott duly accepted Nibert’s option-offer and exercised the option by written notice to Nibert. •
“5. In October, 1946, 28 shares of stock in the Pabco Drilling Company were worth 82,520, or 890 per share. As of June 9, 1947, 28 shares of stock in said corporation were worth somewhat in excess of 87,000, or 8250 per share. No evidence was introduced by which the Court can determine the approximate amount of such excess value and the Court refuses to find such shares were worth 810,000 to 815,000 at that time.
“6. It is equitable that the option contract be specifically enforced in accordance with its terms, and it would be inequitable to refuse to grant specific performance of said contract. ,
“7. The charter of the Pabco Drilling Company, Inc., contained the following provision:
“ 'Statement of all or any of the designations and the powers, preferences and rights and the qualifications, limitations or restrictions thereof, in respect to any class (printed form to this point) stockholders of record shall have the prior right to purchase any stock offered for sale and any stockholder desiring to sell his stock in said corporation, or any part thereof, shall notify the President and Secretary in writing of his desire to sell, the number of shares and the price asked, and the Secretary on receipt of said notice shall immediately notify by registered mail, addressed to the last known address, or the address of record in the stock register, all stockholders of record, and any stockholder or stockholders desiring to purchase same may by exercising such rights purchase their prorata share of same within 30 days of the date of the notice given by said stockholder to the Secretary, and by depositing with the Secretary the amount of the price thereof, and upon failure of the stockholders or any of them to purchase same within said 30 days, said stockholder shall have the right to sell the same to any person.’
“8. No offer or notice of intent to sell Nibert’s stock has ever been made to the other stockholders, nor has there been given an opportunity to purchase their proportionate share of such stock in accordance with the provisions of the charter above set forth.”
“Conclusions of Law.
“1. The option contract of October 29, 1946, constituted a continuing offer by Nibert to Talbott to sell his stock in accordance with the terms of the option.
“2. The option-offer, as modified by the December, 1946, reduction of price, was never revoked, and was valid and outstanding on June 9, 1947.
“3. Upon acceptance of the .option by Talbott on June 9, 1947, an enforceable contract arose whereby Nibert became obligated to sell his remaining 23 shares of stock in the Pabco Drilling Company to Talbott for $4,107.34.
“4. The contractual consideration was not inadequate, nor are there any facts or circumstances rendering it inequitable specifically to enforce the contract of purchase. On the contrary, it is equitable that the contract should be specifically enforced according to its terms.
“5. The charter provision imposing restrictions upon the sale of stock has no application to sales by one stockholder to another stockholder, and does not govern the sale by Nibert to Talbott.
“6. The Court resolves all issues of law in favor of the plaintiff, Talbott, and against the defendants, and finds that a judgment should be entered specifically enforcing the option contract according' to the prayer in plaintiff’s petition.
“7. Talbott shall pay to the Clerk of this Court the sum of $4,107.34 and Nibert shall thereupon endorse and deliver to Talbott his certificate or certificates representing his 23 shares of stock in the Pabco Drilling Company; whereupon the Pabco Drilling Company shall transfer said shares of stock to Talbott and issue to Talbott a new certificate therefor.
“8. The costs of this action shall be assessed against and paid by the defendant Nibert.
“9. Plaintiff has no adequate remedy at law.”
The findings of fact are amply supported by the evidence.
Counsel for Nibert now contends the option contract was without consideration; the burden should have been placed on Talbott; that the burden was on Talbott to prove the adequacy of consideration for the option contract and to show it was equitable to enforce it; that Talbott, as president of the corporation, who was familiar with the corporate affairs was bound to exercise the greatest good faith towards Nibert, a stockholder, who was not familiar with the corporate affairs with respect to the value of the stock.
Touching the fiduciary relationship of the parties, last mentioned, we fail to find it was pleaded or raised below. In any event the record discloses the monthly records of the corporation were at all times available to all stockholders, including Nibert. Moreover, the evidence clearly shows the value of the stock was low at the time the option was granted; the consideration of $5,000 for the option contract was far in excess of the low value of the stock at the time the option was given; the value of the stock was again fully discussed by Nibert and Talbott, and others, at and immediately after the time the corporate stock assessment was made.
We have already stated the issues which were presented to the trial court and that Nibert assumed the burden of proof. As stated, this action was tried by the court without a jury. The question of the burden of proof relative to the issues now raised by Nibert became quite immaterial after all the evidence was before the court. Assuming the burden of proof on other issues now raised by Nibert rested on Talbott, the evidence in the record abundantly supports the trial court’s findings of fact.
The recited consideration for the option contract was not only “One Dollar” but in addition thereto was “other valuable considerations.” It is conceded Talbott did not pay Nibert “One Dollar” at the time the option contract was executed. It is, however, evident the investment in money and services by Talbott, which was intended to and did increase the value of the stock to every stockholder, amply complied with the consideration mentioned in the contract, namely, “other valuable considerations.”
Talbott performed for the benefit of Nibert as well as all other stockholders. Furthermore, even an option unsupported by initial consideration is, if accepted prior to its revocation, a binding obligation which may be enfoi'ced in equity. (49 Am. Jur., Specific Performance, §§ 117, 118.) To the same effect is Connell v. Kanwa Oil Inc., 165 Kan. 241, 194 P. 2d 950, where we said:
“Where a party exercises an option by performance which benefits the other party the latter manifestly cannot repudiate the deal on the ground it was originally unilateral.” (p. 243.)
Following, too, it is said in 12 Fletcher, Cyclopedia of Private Corporations, Perm, ed., 1932, § 5575:
' “It is well settled that the owner of stock may give another an option to buy within a certain time, and if the other accepts and agrees to buy within the time limited, the offer not having been withdrawn, there is a binding contract, even though the option was originally without consideration, which may be enforced in equity.” (p. 566 et seq.)
Here Nibert gave the option in order to get Talbott to save and revitalize the corporation. Nibert knew he would benefit by the resulting increased value of his stock if Talbott did not,exercise the option. He undoubtedly also realized he might lose even the option value of his stock if he did not grant the option. These were all proper considerations which a court of equity could not well overlook. Assuming, therefore, the adequacy of the consideration for the option contract remained an issue for trial and that the burden of proof relative thereto rested on Talbott its adequacy is amply established by the evidence.
We agree the court correctly concluded there were no facts that made it inequitable to decree specific performance of the contract and that, on the contrary, it was’equitable to enforce it.
On what theory is this equitable conclusion assailed? Nibert contends there was failure of compliance with a condition required to make a valid sale of the stock. His contention, in substance, is that he was not required to comply with his contract for the reason the corporate charter provisions set forth in the court’s findings of fact required a notice of his sale of stock to Talbott be given to the other stockholders of the corporation and that no notice was given in accordance with that provision. The trial court thought otherwise and concluded the charter provision did not apply to or govern a sale of stock from one stockholder to another stockholder. (Conclusion of law No. 5.) Assuming purely for the sake of argument that the provision did apply as Nibert contends and that it required such notice in the case of a sale by one stockholder to another stockholder in the same corporation, and assuming further, and again only for the sake of argument, that such a provision, if it existed, was valid, how could such facts possibly constitute a defense available to Nibert in this case? Who was required under this charter provision relied on by Nibert to initiate the proceedings to have such a notice given? It was Nibert, the seller of the stock, not Talbott, the purchaser.
The charter provision on which Nibert relies required him to “notify the president and secretary in writing of his desire to sell, the number of shares and the price asked. . . .” Only after Nibert had performed that alleged condition, or requirement, could the secretary of the corporation give the notice of sale to other stockholders. Even if Nibert’s interpretation of the charter provision were correct it was he who, by his own default, prevented the completion of the transaction. We therefore find Nibert asserting his own default as a defense to a decree of specific performance.
Manifestly, Nibert’s own default which prevented the completion of the transaction according to the charter, if it required notice, could not be asserted by him as a defense at law, much less in equity and good conscience. The only duty which would have remained for Talbott to perform in order to complete the transaction after the notice to stockholders, if such notice were necessary, would have been to pay for the stock he received. Nibert made it impossible for Talbott to perform that duty.
The rule is clear and well settled, and founded in absolute justice, that a party" to a contract canndt prevent performance by another and derive any benefit, or escape any liability, from his own failure to perform a necessary condition. (Dill v. Pope, 29 Kan. 289; Supply Co. v. Cement Co., 91 Kan. 509, 512, 138 Pac. 599; Briney v. Toews, 150 Kan. 489, 495, 95 P. 2d 355.) And this is the universal rule. (12 Am. Jur., Contracts, §§ 381, 386; 2 C. J., Agency, §439, p. 772; 13 C. J., Contracts, §§721, 722, 723; Restatement, Contracts, § 315.)
In view of what has been said it is unnecessary to a decision in this case to determine (1) whether the charter provision in question applies to a sale of stock from one stockholder to another in the same corporation; (2) whether this charter was only intended to give stockholders priority to purchase in the event the stock was to be offered for sale to a nonstockholder; or (3) whether the charter provision constitutes an invalid restriction on the power of disposition if interpreted to apply to sales of stock by one stockholder to another in the same corporation.
Nibert is representing only himself in this case and no other stockholders. Clearly, he cannot personally escape the performance of his contract with Talbott under the guise of endeavoring at this late hour to protect the rights of other stockholders. If their rights have been impaired by reason of this transaction they can assert them by such a remedy as they deem advisable.
. When Nibert refused to carry out his contract Talbott filed the instant action to compel performance by Nibert. Talbott" directs attention to the fact that thereafter, and in order to indicate his good faith in the matter, he caused two letters to be written to the stockholders, informing them of the option contract and the pend-ency of the instant action to acquire the stock, offering to permit them to share pro rata in the purchase of the Nibert stock if they would also share in the expense of the litigation made necessary in order to acquire the stock, and that none of them deposited his pro rata share as provided by the charter. Nibert’s counsel contend those notices and offers did not conform to the charter provision and were insufficient and improper for other stated reasons. A determination of these contentions of the parties would not affect the conclusion we have reached on the merits of the case and we shall not pursue them.
This brings us to a complaint concerning the exclusion of certain oral testimony pertaining to the unqualified option which authorized Talbott to exercise it at any time within one year. Nibert contends the testimony he offered, that the option contract was given with the previous and contemporaneous oral understanding Talbott would not exercise it if he, Nibert, refrained from interfering with the corporate management, should have been admitted. The argument is that this evidence disclosed a conditional delivery, and was therefore competent, citing Griffith v. Marsh, 85 Kan. 693, 118 Pac. 879; Stroupe v. Hewitt, 90 Kan. 200, 133 Pac. 562; Bartholomew v. Fell, 92 Kan. 64, 139 Pac. 1016; Goutermont v. Bland, 99 Kan. 431, 162 Pac. 270; Wilhoit v. Seavall, 121 Kan. 239, 246 Pac. 1013; Mayse v. Grieves, 130 Kan. 96, 101, 285 Pac. 630. It will be observed the excluded oral testimony pertained to future performance of Nibert during the life of the option. It qualified the option by adding a new condition thereto and clearly changed its terms and legal effect. None of the cases cited supports the contention the oral testimony was competent.
It is also well to remember this option had been exercised. When exercised before revoked it became a binding contract as previously shown herein. The contract was eligible to protection of the parol evidence rule. (20 Am. Jur., Evidence, § 1105.)
The trial court properly excluded the-testimony. (Guaranty Co. v. Grabske, 111 Kan. 271, 207 Pac. 322; Hudson State Bank v. Haile, 130 Kan. 322, 325, 286 Pac. 228; Continental Supply Co. v. Morgan, 133 Kan. 121, 298 Pac. 790; Lanphear v. McLean, 135 Kan. 266, 10 P. 2d 889; Federal Farm Mortgage Corp. v. Bolinger, 152 Kan. 700, 705, 108 P. 2d 492.)
This might well end the appeal. The trial court, however, passed squarely on the legal effect of the charter provision itself and we shall treat that point. At the outset, however, we desire to emphasize that we are concerned here solely with the instant charter provision and not with the abstract question of the validity of some provision of a wholly different character which all stockholders might have seen fit to adopt.
It is true the trial court found no notice of the sale had been given as required by the charter. The court could not have found otherwise on the evidence. That finding does not mean the sale was void. How can that finding possibly aid the seller, Nibert? Clearly it cannot. That finding is not against the purchaser, Talbott. It is a specific finding against Nibert whose duty it was to— and who alone could — initiate the proceedings to give notice of the sale, if such notice was in fact required in .the case of a sale from one stockholder to another.
It must not be overlooked the court’s conclusions of law showed it expressly decided the charter provision did not apply to a sale of one stockholder to another and did not govern the instant case. If that be correct obviously no notice was necessary in order to make a valid sale, and the court so decided.
The trial court may have reached its conclusion that the charter provision had no application to the instant case on more than one theory. It may have reached that conclusion from its interpretation of the charter provision itself, or it. may have reached that conclusion on the theory that if it was the intention of the charter to require notice in the case of a sale by one stockholder to another the requirement was void. The latter conclusion is squarely sustained by our own decision in Steele v. Telephone Association, 95 Kan. 580, 148 Pac. 661. It is not contended this court has overruled or modified that decision. It was there held such a requirement constituted an impairment of a stockholder’s right to dispose of his own personal property, his stock, and was void.
It therefore follows the court’s conclusion that the sale was valid was correct irrespective of the particular theory upon which the judgment was based. So long as a judgment is correct the theory or reason on which it is decided is wholly immaterial insofar as a reversal on appeal is concerned. See Goodloe v. Jo-Mar Dairies Co., 163 Kan. 611, 612, 185 P. 2d 158, and numerous cases there cited.
But if the court’s conclusion was based on the interpretation of the charter itself, was the trial court wrong in that interpretation? Obviously it was not. Notwithstanding the fact that some other courts uphold restrictive charter provisions, agreed upon by the stockholders, 'which require a notice of sale to all stockholders where one stockholder sells his stock to another stockholder, it is generally held the restrictive provision must specifically state that a notice is required under those particular circumstances. (Guaranty Laundry Co. v. Pulliam, 198 Okla. 667, 181 P. 2d 1007 [1947], and see numerous cases cited therein, p. 669.)
Restrictive charter provisions concerning sales of stock are ordinarily employed to keep the association intact and to prevent transfer of stock to “outsiders,” nonstockholders, who might enter the corporation to gain information concerning it for their own sel fish ends and to use it against the best interests of the corporation. Such restrictive provisions pertaining to nonstockholders are valid. Absent a clear and specific charter provision which compels an interpretation that notice is required to other stockholders in case of a sale by one stockholder to another stockholder courts generally construe such provisions to mean that stockholders are to be given an opportunity to purchase the stock only before it is offered to “outsiders,” nonstockholders. A few of the numerous cases so holding are Rychwalski v. Milwaukee Candy Co., 205 Wis. 193, 236 N. W. 131; Serota v. Serota, 5 N. Y. S. 2d 68; Gibbon v. 3920 Lake Shore Drive Building Corporation, 310 Ill. App. 385, 34 N. E. 2d 109; Mason v. Mallard Telephone Co., 213 Iowa 1076, 240 N. W. 671; Sterling Loan & Investment Co. v. Litel, 75 Colo. 34, 223 Pac. 753; McDonald v. Farley & Loetscher Mfg. Co., 226 Iowa 53, 283 N. W. 261, 263.
The instant charter did not specifically or clearly deny the right of a stockholder to sell to another stockholder without notice to other stockholders. It is just as open, and it would seem far more so, to the interpretation that the priority referred to means that stockholders have a priority over outsiders to purchase the stock. The trial court, in view of the overwhelming weight of authority properly concluded the charter did not apply to or govern the instant sale.
In view of our own decision in the Steele case, supra, it is clear that in the absence of a contrary later decision, and we have none, or contrary legislation on the subject, the instant charter would be void if interpreted to require notice to all stockholders in case of a sale of stock by one stockholder to another stockholder. With the decision in the Steele case before the legislature what did that body do when it enacted the 1939 corporation code? The answer is clear. It provided that a charter might contain a provision denying the right of sale to nonstockholders before the stockholders had an opportunity to purchase. That legislation itself shows the legislature did not intend to disturb the decision in the Steele case but actually intended to conform its legislation thereto.
In G. S. 1947 Supp. 17-2802 the legislature provided what articles of incorporation should set forth. That statute is not drawn into question in this case. In G. S. 1947 Supp. 17-2803 the legislature stated what provisions might be set forth in the charter. Provisions thereof stressed by the parties are:
“The articles of incorporation may also set forth:
“B. Any provision which the incorporators may choose to insert for the management of the business and for the conduct of the affairs of the corporation, and any provisions creating, defining, limiting and regulating the powers of the corporation, the directors and the stockholders, or any class of the stockholders, or, in the case of a corporation which is to have no capital stock, of the members of such corporation; provided, such provisions are not contrary to the laws of this state.
“E. A provision to the effect that no stockholder of the corporation shall ever own, or vote as owner or by proxy, or both, to exceed a certain percent of the capital stock of such corporation.
“F. A provision reserving to the corporation and existing shareholders the right to purchase and acquire the stock of a selling stockholder before sale to a nonstockholder.”
Nibert contends “B” empowered the corporation to enact a charter provision which would require an offer of the sale of stock to all stockholders before selling it to one or more stockholders. Assuming it would be possible to so interpret “B,” with which we cannot agree, it already has been demonstrated the corporation did not enact a charter provision having that effect. We need, therefore, not discuss, in this case, the abstract question of the effect of a provision requiring notice if it had been enacted.
Talbott contends in any event “B” was not intended to cover this particular subject as “F” specifically pertains thereto and covers it precisely. The latter contention is sound. If “B,” a section of general scope, had the effect contended for by Nibert it would permit a provision which would be contrary to and, therefore, nullify the specific provision permitted in “F.” It is well established that a statute relating to a specific thing takes precedence over a general statute which might be construed to relate to it. (Wulf v. Fitzpatrick, 124 Kan. 642, 261 Pac. 838.)
The intent of the legislature must be ascertained by a consideration of all material portions of a statute or act and not from isolated portions thereof. (Rausch v. Hill, 164 Kan. 505, 508, 190 P. 2d 357.) It is the duty of courts, so far as practicable to reconcile various provisions in order to make them consistent and sensible. (Iola B. & L. Ass’n v. Allen County Commits, 152 Kan. 365, 103 P. 2d 788.) Applying these rules of construction the legislative intent seems evident.
It is also well to note subdivision “E” of the above statute enables a corporation to enact a provision which would keep any stockholder from owning or voting enough stock to control the corporate affairs. When the case was argued orally before this court we were advised this charter contained no such provision. Nibert had originally alleged the defense that Talbott was attempting to get control of the corporation and “freeze out” the minority stockholders. That defense was, however, withdrawn at the time of trial.
In our opinion the- judgment of the trial court compelling specific performance of the instant contract was the only judgment which in justice and fair dealing could have been rendered.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an action on a fire insurance policy issued by a mutual fire insurance company covering loss of seed corn. The company denied liability, suit was filed and following a trial by the cotirt in which a jury was waived judgment was rendered for the insured in the amount of $2,725 together with $350 as attorney fees. Defendant company’s motion for a new trial was overruled and it appeals. At the outset it should be stated that the correctness of the amount allowed for the loss of the seed corn is not in question— it having been stipulated at the 'commencement of the trial.
The facts of the case as disclosed by the pleadings and the evidence are as follows:
Plaintiff owned and lived on his farm in Jefferson county and for a number of years had specialized in the production and sale of hybrid seed corn. The buildings on the farm consisted of a nine-room house in which plaintiff and his wife lived, two large barns, stock sheds, two machine sheds, a government bin of 500-bushel capacity, and other buildings, one of which was referred to as a seed house and used for sorting seed corn. This latter building was about 11 feet wide and 80 feet long, contained seed corn graders and a number of corn bins which would hold about 750 bushels. It appears that the work of shelling and grading was done here after which the graded corn would be sacked and stored in a room of plaintiff’s house.
The facts concerning the description and use of this room of plaintiff’s house for the storage of grain (and which really brought about this lawsuit) are as follows:
Formerly when plaintiff’s family was larger this room had been used as a parlor but in the spring of 1941 the furnishings were removed and since then had been used for the storage of sacked seed corn. It was an integral part of the house, had two or possibly three outside exposures, was about 18 feet square, had two windows, and three doors one of which lead into the dining room. In the spring of 1942 plaintiff put a heavy beam under the floor of this room so that it would support a heavier load. Since 1941 the room had been used exclusively for the storage of seed corn.
Plaintiff’s house, of which the room in question was a part, was heated by a furnace and was lighted by an electric plant located in the basement. The kitchen had a coal-burning cookstove which was used the year around.
Plaintiff did his banking business in Valley Palls. ■ Mr. Doyle, cashier of the bank, also sold insurance. In the fall of 1945 plaintiff applied for fire insurance in the amount of $7,500 covering seed corn. Mr. Doyle died prior to the trial of this lawsuit but plaintiff’s testimony was to the effect that when Doyle asked him where the seed com would be located he gave him the legal description of his quarter-section farm and that nothing was said by either party as to the buildings in which it would be stored. A few days later Doyle called plaintiff on the telephone and told him he was unable to get the insurance with the company that had carried it the year before as it did not have the insurance on the buildings but that he had another company that would write- it and plaintiff in effect told him to go ahead. Plaintiff later knew that the insurance had been written because included with his next month’s canceled checks received from the bank was a debit slip covering the premium. He further testified that Doyle never asked him to sign an application for the insurance; that he had not signed an application blank; that no inspection was ever made by Doyle or by any other company representative; that the policy had been kept by Doyle in the bank as had been the custom between the parties with reference to other insurance policies in the past and that he did not see the policy until after the fire which occurred on April 3, 1946. The fire destroyed the dwelling house and another small building. At the time of the fire there were 360 bushels of seed corn stored in the room in question and other seed corn in another building which was not destroyed. Plaintiff did not have any other insurance on the seed corn but did have insurance on his house and household goods in another company not represented by Mr. Doyle. After the fire he went to the bank to examine his policy. His claim, for loss was denied by defendant company on the ground that it was not covered under the policy. Shortly thereafter this lawsuit was filed.
The application for the policy contained the following:
“Application of ........Ralf Hockens........P. 0. Address........Arrington, Kansas ........To THE REPUBLIC MUTUAL FIRE INSURANCE COMPANY OF BELLEVILLE, KANSAS. For indemnity against loss or damage by Fire and Lighting to the amount of — $7,500.00—
“26. On — seed corn in barn and granary— $7,500
“Said property being owned by me, and (except as herein otherwise provided) situated on and confined to ........160........ acres in the .......-NE 14........ Section ........29........Twp.........7........ Range ........17........ County of ........Jefferson ........, State of Kansas.
“Dated at.......-Valley Falls........, State of Kansas, this........30th day of ........ October........, 1945.........
“Witness........M. J. Doyle........ Applicant ........Ralf Hockens........”
As heretofore stated the plaintiff denies ever signing the application, and on the trial the matter was not pursued. Mr. Doyle died in June, 1947, and the trial was had the following November.
The policy provided that defendant company—
“. . . DOES INSURE ........RALF HOCKENS........ Against Direct Loss or Damage by FIRE and LIGHTNING, except as hereinafter provided, to an amount not exceeding .....Seven-Thousand-Five-Hundred and No/100 ..........:.DOLLARS, ... to the following described property while located and contained as described herein, and not elsewhere, to-wit: ... “26. On seed corn in barn and granary $........7,500'.........
“Said property being owned by the insured, and (except as herein otherwise provided) situated on and confined to........160........acres in the........NE 14 ........ of Section........29........, Township ........7........ Range .........17........, County of ........Jefferson........, State of Kansas.”
The company defended on the theory that the terms of the policy were plain, fair and unambiguous; that the seed corn was to be stored “in barn and granary” as the terms are generally and commonly understood; that the dwelling house did not constitute a “barn” or “granary” and that storage of seed corn therein constituted a greater risk and hazard within any reasonable or proper interpretation of the policy. At the trial the secretary of the company testified to the receipt and approval of the application and the issuance of the policy, as to agent Doyle’s contract with the company and that while the company did not have any bylaws which prohibited the insurance of grain stored in a dwelling, yet for years it had been an established rule and policy not to insure grain so stored and that the company would have declined such a risk had it known where the grain was to be stored.
After hearing all the evidence the court rendered judgment in favor of the plaintiff for the full amount of the loss together with attorney fees.
On appeal appellant company argues that — (1) a fair and unambiguous contract is not subject to change by the courts but is to be enforced according to its terms; (2) the pleadings do not seek a reformation of this policy and that in any event reformation would not lie for the reason the two grounds for reformation, namely, mutual mistake or mistake on the part of the plaintiff and fraud on the part of defendant, are not present; (3) the room of this dwelling house did not constitute a granary; and (4) the policy should be construed strictly against the insured because of the fact that the company is a mutual ñre insurance company.
Appellee’s argument on behalf of the trial court’s finding and ruling is based upon three propositions: First, that the policy in question was intended to cover the seed corn so long as it was situated upon and confined to the land described in the policy and the court has a right to consider the policy as reformed to express the real intention and understanding; secondly, that regardless of the question of reformation the place where the seed corn was stored at the time of the fire was a granary within the common meaning and understanding of that word and within the meaning of the policy; and thirdly, that since defendant company had no bylaws pertaining to insurance on grain stored in a dwelling, which under the provisions of G. S. 1935, 40-1017 would necessarily have to be attached to the policy, therefore the established rule or policy of the company in this respect would in no way be binding on the insured.
We do not agree with appellant’s contentions and we think that the trial court quite properly rendered judgment for the insured. In our disposition of this case it is unnecessary to discuss the matter of reformation and the question of the alleged long-established rule and policy of the company with reference to the matter of risks for the reason that we are of the opinion that the room in which the seed corn was stored at the time of the fire constituted a granary within the common meaning and understanding of the word and within the meaning of the policy. It is true this room was attached to and was a part of the dwelling house but the evidence showed that for a number of years it had been used exclusively for the storage of seed corn and we see no reason why the company should escape liability merely because of the fact that it was not a separate building distinct and removed from the rest of the house. The flooring had been reinforced and it was common, knowledge among customers of the insured that he was using the room as a granary. Webster’s New International Dictionary, 2d ed., Unabridged (1946 Reprint) defines a “granary” as being “a storehouse or repository for grain esp. after it is threshed or husked.” 38 C. J. S. 977, defines the word “granary” as “a term denoting a building usually devoted to the storage of corn and grain; a corn house; a storehouse or repository of grain, after it is threshed.”
We therefore hold that the room in which the seed corn was stored at the time of the fire constituted a granary, and the loss having occurred, the company is liable.
And finally, there is a further reason why we think that this judgment should be upheld. The question as to whether this was or was not a granary was raised in the lower court and while the court did not render findings of fact and conclusions of law, yet its general finding in favor of appellee carries with it an affirmative finding on the specific point. The court heard the evidence as to the description and use of this room as a granary, and its finding, being based upon competent, sufficient evidence, is binding upon this court on appeal.
No question is raised as to the propriety of the lower court’s order with reference to attorney fees and its ruling will not be disturbed.
It therefore follows that the judgment of the lower court should be and the same is hereby affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This is an original action in quo warranto brought by the state of Kansas on the relation of the,county attorney of Harvey county, Kansas, against Drainage District No. 3 of McPherson county, Kansas, for the purpose of having said drainage district declared invalid and to prevent it from functioning as a public corporation upon the ground that the order of the district court of McPherson county purporting to create and establish such district was and is void.
The matter is before us on the petition of the plaintiff, the answer of the defendant, plaintiff’s motion to strike from the answer and plaintiff’s motion for judgment on the pleadings.
The petition is set out in full in State v. Drainage Dist. No. 3, 166 Kan. 225, 200 P. 2d 278, in which it was held to contain sufficient well-pleaded allegations to withstand an attack by demurrer based upon the ground such pleading failed to state a cause of action and for that reason will not be detailed in this opinion.
Briefly summarized, the petition alleges that defendant drainage district purports and claims to be a public corporation pursuant to article 6 of chapter 24, G. S. 1935, under and by virtue of the order of the district court of McPherson county, Kansas, made on July 7, 1947; that the order of the district court was and is void for the reason that the court was without jurisdiction to declare the drainage district a public corporation because there were not and are not, 160 acres of contiguous swamp and overflowed land within the limits of the district as required by section 24-601, G. S. 1935; that the whole proceeding was sought only for the purpose of draining two bodies of water within the limits of the proposed district which were and are in fact lakes, each of which was and is in excess of two acres in extent; that the order of the court was and is in direct violation of the express provisions of G. S. 1935, 24-705; that the order is contrary to established public policy in the state of Kansas in that it purports to create a drainage district for the express purpose of draining two lakes located within the district, each of which is in excess of two acres in extent and that the order will result in the lowering of the water table underlying the lands surrounding said lakes not only within the limitations of the district but also outside thereof, to the great damage and detriment of the landowners thereof and to the public at large. It then alleges that the district proposes to drain the lakes; that plaintiff is without an adequate remedy at law and that the state of Kansas and citizens thereof will suffer irreparable loss and damage by reason of the unlawful and invalid acts of the district. The prayer is that said drainage district be adjudged invalid and nonexistent; that it be excluded from the exercise of all corporate powers, rights and privileges; that the judgment and order of the district court of McPherson county purporting to create and establish said district be adjudged to be invalid, null, void and of no effort and that plaintiff be granted such other relief as may be just and equitable, together with costs.
Following the overruling of its demurrer by this court in State v. Drainage Dist. No. 3, supra, the defendant filed its answer. Since this case is before us on plaintiff’s motions to strike and for judgment on the pleadings, the answer is set out in full and is as follows:
“Comes now the defendant, Drainage District No. 3 of McPherson County, Kansas, by its attorneys, J. R. Rhoades and George R. Lehmberg of McPherson, Kansas, and J. G. Somers and Arthur N. Turner of Newton, Kansas, and-for its answer to Plaintiffs’ petition, denies every allegation in such petition except those hereinafter admitted, and for further answer:
“1. Defendant admits the allegations contained in Paragraph 1 of plaintiffs’ petition.
“2. Defendant denies all of the allegations in Paragraph 2, and alleges the fact to be there are 400 acres or more of wet, overflowed or submerged land in the district, of which approximately 193 acres are in a contiguous body lying in the South Half of said Section 29 and the North Half of said Section 32, and approximately 233 acres are in a contiguous body lying in the South Half of said Section 32 and the North Half of said Section 5; and each of said acres and the entire drainage district embrace a contiguous body of swamp or overflowed lands of more than 160 acres, which said lands are too wet for cultivation.
“3. Defendant admits it proposes to, and will exercise corporate powers, and will drain the area embraced in its drainage district boundaries, but denies that either the state of Kansas or its citizens will suffer loss and damage thereby. Defendant further alleges that this drainage district was organized under G. S. 1935,"Chapter 24, Article 6 (Chap. 168, L. 1911), which appears as G. S. 1935, Chapter 24-601 et seq., and not under G. S. 1935, Chapter 24, Article 7 (Chap. 197, Session Laws 1907, as amended by Sec. 1, Ohap. 128, Laws 1909) and appears as G. S. 1935, 24-701 et seq.; and that the two acts are each complete in themselves, and separate and distinct drainage enact ments with different procedures, different provisions and different limitations.
“4. Defendant admits that Exhibits A and B attached to petition are copies of ah aerial photograph of the district, of some interest, perhaps, but of little probative force in that they do not represent the true conditions of the area at all times, but denies that Exhibits C and D are plats or surveys showing the correct banklines of any lakes within the area, and particularly denies that permanent natural bank lines exist.
“5. Defendant further alleges that the portion of subparagraph (/) of Paragraph 2 of plaintiffs’ petition, referring to lowering of the water table, has been abondoned by the plaintiff, therefore no denial is made by the defendant.
“6. Further answering, defendant alleges that on the 7th day of July, 1947, the District Court of McPherson County, Kansas, after a full and complete hearing lasting for days, made the following findings of fact and conclusions of law:
“Findings op Fact.
“1. Articles of Association for the formation of Drainage District No. 3 of McPherson County, Kansas, under 24-601, G. S. 1935 et seq., have been filed and summons issued to the non-signers who own real estate in the proposed district.
“2. The proposed district consists of the South Half of Section 29 and all of Section 32, Township 21 South, Range 3 West, McPherson County, Kansas, and the North Half of Section 5, Township 22 South Range 3 West, Harvey County, Kansas, except a tract of 1.5 acres owned by Lake Shore School District No. 119 in the northwest corner of said area, and the proposed district contains approximately 1278.5 acres.
“3. The Articles of Association are signed by the owners of approximately 911.5 acres. Non-signers who own approximately 282 acres in the proposed district are not objecting to the organization of said drainage district. The Newton Hunting Club, a corporation, who own approximately 71.5 acres in the proposed district, and The Sportsmen’s Club, a corporation, who owns approximately 10 acres in the proposed district, have filed their objections to the organization of such drainage district and inclusion of their real estate therein.
“4. The Articles of Association are signed by a majority in interest of the owners of the land in the proposed district; the area of the proposed district is composed of contiguous tracts of land; there are 400 acres or more of wet, overflowed or submerged land in the proposed district, of which approximately 193 acres are in a contiguous body lying in the South Half of said Section 29 and the North Half of said Section 32, and approximately 233 acres are in a contiguous body lying in the South Half of said Section 32 and the North Half of said Section 5; and each of said areas and the entire proposed drainage district embrace a contiguous body of swamp or overflowed lands of more than 160 acres, which said lands are too wet for cultivation.
“5. That the two bodies above mentioned are natural depressions which accumulate surface water; that the tract of approximately 71.5 acres owned by The Newton Hunting Club in the Southwest Quarter (SW%) of said Section 32 is the lowest portion of the south body of water; that the tract of approximately 10 acres owned by The Sportsmen’s Club in the Southwest Quarter (SW%) of said Section 29 is the lowest portion of the north body of water; that the south body of water is approximately 1 foot lower than the north body of water; and that in 1945 water was flowing between the two bodies of water.
“6. That surface waters within the area accumulate upon said wet, overflowed and submerged lands; that there are no streams or springs or other sources of water within the area and the amount of water which forms in bodies of water within the area depends upon the amount and frequency of rainfall; and that there is no natural drainage or outlet for surface waters in said area. That the proposed plan of drainage for the area is the construction of a ditch from the north body of water to the south body of water, and from the south body of water east to Turkey Creek. That the purpose of said proposed drainage district is to reclaim said land and protect the same from the effects of water; that the wet overflowed and submerged lands care good, fertile agricultural lands; and that said lands may be effectively drained of water and rendered suitable for agricultural purposes.
“7. That the lands of the two objectors are owned and held by them respectively primarily for duck hunting purposes.
“Conclusions of Law
“1. That the Articles of Association are executed by a majority in interest of the owners of a contiguous body of swamp or overflowed lands in McPherson and Harvey Counties, Kansas, and such Articles of Association comply with the requirements of 24-601 et seq., G. S. 1935 for the formation of a drainage district and that it is mandatory on the Court to declare said drainage district a public corporation of this state.
“2. Agricultural lands upon which surface waters accumulate, rendering the same unfit for cultivation, are swamp or overflowed lands within the meaning of 24-601 et seq., G. S. 1935.
“3. Swamp or overflowed lands which will become productive agricultural lands upon drainage are benefited by the formation of a drainage district and the drainage of said swamp and overflowed lands.
“4. The lands owned respectively by the objectors are properly included in the proposed district and said lands will be benefited thereby, and therefore, the applications of said objectors to exclude their real estate from said district are denied.
“It Is, Therefore, Considered, Ordered, Adjudged and Decreed by the court that Drainage District No. 3 of McPherson County, Kansas, be and the same hereby is declared a public corporation of this state under the Articles of Association filed herein, except as to the real estate owned by The Hoffnungsau Mennonite Church, which real estate is hereby excluded from said drainage district.
“Defendant further alleges that' no appeal was perfected from the findings, conclusions, and order of the District Court creating the district, and that such findings, conclusions and order are final and conclusive.
“7. Further answering, this defendant alleges that since the action of the District Court of McPherson County (incorporating the district), a board of supervisors has been elected; this board has employed an engineer who has prepared a topographical survey of the district and maps and profiles thereof, a complete plan for draining the district, an estimate of the cost of the improvements, and a classification of the property of the district and assessment of benefits. After notice, as is required by law, a hearing was had May 24, 1948, by the board of supervisors, no objections were put forth at this hearing, and the board, after a full examination of the plans, estimate of costs, classification of property, and assessment of benefits, approved the same as submitted by the engineer, but that nothing further has been done in view of the commencement of this action.
“8. Defendant further alleges that since the organization of the district, and prior to the commencement of this action, the objectors, The Newton Hunting Club, a corporation, and The- Sportsmen’s Club, a corporation, sold their land within the district. The Newton Hunting Club sold its 71.5 acres mentioned in District Court Finding 5, to Dave J. Schroeder, who is a member of the Board of Supervisors, and the secretary of this drainage district, and certainly is not objecting to the organization of the drainage district. The Sportsmen’sv’ Club, mentioned in the same finding, sold its ten acres to David G. Unruh, who as one of the incorporators, and is now Chairman of the Board of Supervisors of the drainage district, and he is not objecting. These two hunting clubs were the only objectors to the formation of the district.
“9. Defendant further alleges it has complied with all the laws of the State of Kansas as contained in G. S. 24-601, et seq.; that the District Court of McPherson County, Kansas, upon disputed evidence, has found in favor of this corporation, has ordered its incorporation, and defendant is in truth and in fact a legally existing corporation.
“Wherefore, Defendants, having fully answered, pray judgment for their costs.”
The plaintiff then filed the following motion to strike:
“Comes now the plaintiff, the State of Kansas, ex rel: Vernon A. Stroberg, county attorney of Harvey County, Kansas, and for his motion to strike from the answer of the defendant herein states:
“Paragraphs 2, 3, 4, 7, 8, 9, and the additions of the defendant made at the end of the paragraph 6th on page 4 of defendant’s answer which reads as follows, to-wit:
“ 'Defendant further alleges that no appeal was perfected from the findings, conclusions, and order of the District Court creating the district, and that such findings, conclusions and order are final and conclusive.’
of said defendant’s answer are incompetent, irrelevant, immaterial to the issues of this case, embodies conclusions of law and invades the province of the court in determining the legal questions in the above styled case involved for which reasons said paragraphs should be stricken from the answer of said defendant.
“And for the purposes of this motion and for the purposes of submittal of this case to the above court, paragraph 5 of defendant’s answer is admitted.
“Wherefore, plaintiff prays that paragraphs 2, 3, 4, 7, 8, 9 together with the above referred additions at the end on paragraph 6 be stricken.”
and on the same date filed its motion for judgment on the pleadings as follows:
“Motion for Judgment on the Pleadings
“Comes now the plaintiff, the State of Kansas, ex rel: Vernon A. Stroberg, county attorney of Harvey County, Kansas, and moves this honorable court for judgment on the pleadings of the plaintiff and defendant for the reason that the answer of the defendant particularly sets forth the findings of fact and conclusions of law of the Honorable District Court of McPherson County, Kansas, in paragraph 6th of said defendant’s answer and that said findings of fact and conclusions of law as therein set forth establish on the face of the record that said drainage district No. 3, defendant herein, was organized for the purpose and to drain two lakes each of which is in excess' of two acres in extent contrary to the established policy of the state of Kansas and further establishes that the area of which said drainage district is composed was not swamp or wet overflowed or submerged lands as contemplated by the laws of the state of Kansas.
Wherefore, said plaintiff prays judgment on the pleadings declaring that drainage district No. 3 of McPherson County, Kansas, is not a legally constituted drainage corporation but that the order of the District Court of McPherson County, Kansas, purporting to create said drainage district was and is void for the reasons more particularly set forth in said plaintiff’s petition in the above styled cause.”
As we read the pleadings in this case plaintiff’s motion to strike from the answer of the defendant is without merit with the exception of that portion which seeks to strike the allegation to the effect that since no' appeal was perfected from the findings, conclusions and order of the district court creating the district, such findings, conclusions and order are final and conclusive. The state was not a party to the original action incorporating defendant district and is not precluded from bringing the instant proceeding. (State, ex rel., v. Wheat Farming Co., 137 Kan. 697, 22 P. 2d 1093, and cases cited therein.)
In support of its motion for judgment on the pleadings plaintiff argues that the existence of swamp and overflowed land is a prerequisite to the formation of a drainage district; that the drainage of lakes is prohibited by statute and public policy and that the order purporting to create the defendant district is void upon its face. Summarized and boiled down to its very essence, the gist of plaintiff’s argument is that G. S. 1935, 24-705, prohibits the drainage of any lake covering two acres or more in. extent. We are cited to numerous authorities defining the word “lake” and plaintiff contends that the very language found in the order of the district court creating said district shows such lands, or at least a portion thereofj contained in the district, to be lakes. Our attention is also called to the fact that while article 6 of chapter 24 was enacted in 1911, and article 7 in 1907, yet 24-627 specifically provides that article 6 shall not be construed as repealing or in any wise modifying the provisions of any other act relating to the subject of draining, reclaiming, or protecting swamp, overflowed or submerged lands.
In behalf of defendant district it is argued that the language employed in the findings of the district court means just what it says— that the land in question is wet, overflowed, submerged and swamp land and does not contain lakes as contended for by plaintiff; that even though the provisions of 24-705 prohibiting the drainage of lakes could be construed as being applicable to this proceeding, nevertheless artcile 7 of chapter 24 is unconstitutional and void; that articles 6 and 7 of chapter 24 are not in pari materia and that each was enacted to take care of a particular situation as it arose.
Various other arguments are advanced by each side to this controversy but.as we view this case the proposition narrows down to this:
The pleadings before us are the petition, answer, motion to strike from the answer, and the motion for judgment on the pleadings. We have already said that we find no merit in plaintiff’s motion to strike from the answer with the exception of the one particular with reference to no appeal being taken. The motion for judgment on the pleadings is really tantamount to and the equivalent of a demurrer which admits facts well pleaded and is only to be sustained where a cause of action is admitted by the answer and no facts are alleged therein which defeat the admission. In other words, such motion properly raises the question whether the allegations of the answer taken as true state a defense. (Fidelity Life Assn. v. Hobbs, 161 Kan. 163, 166 P. 2d 1001, and cases cited.) Do the allegations of the answer taken as true state a defense?
The answer alleges that defendant drainage district was organized under the provisions of article 6, chapter 24, G. S. 1935, the constitutionality of which has already been upheld in State, ex rel., v. Drainage Dist., 123 Kan. 191, 254 Pac. 372. The act provides for the formation of a drainage district by a majority in interest of the owners in any contiguous body of swamp or overflowed lands in the state situated in one or more counties, which district shall in no event embrace an area of less than 160 acres. The act goes on to provide that the fact the district shall contain 160 acres or more of wet, overflowed or submerged lands shall be sufficient cause for declaring the organization a public corporation. The district court found all of the conditions and facts enumerated in article 6 of chapter 24 necessary for the organization of the district to exist, and since they are set out in detail above will not specifically be referred to here.
In fact, as we read plaintiff’s motion for judgment and the argument in its brief it appears that its contentions are based solely on the fact that the order of the district court creating the district shows on its face that the area involved contains the two alleged lakes in question and that their drainage will result unless the order is held to be void and the drainage district dissolved. Several things enter into the consideration of this question, such as the distinction between “submerged land” and a “lake”; whether articles 6 and 7 of chapter 24 are in pari materia, and if so, does the language of 24-705 apply to the instant proceeding assuming that included in the drainage district area are the two alleged lakes as contended by plaintiff.
We are passing on plaintiff’s motion for judgment on the pleadings and in order to sustain it we would have to hold that the allegations of the answer taken as true do not state a defense. That we cannot do. The order of the district court set out in defendant’s answer appears on its face to be regular in every respect and not violative of any existing statute. In fact, it appears to be in exact conformity with the provisions of article 6 of chapter 24. We are told that there was a lengthy hearing at the time the district was organized and we cannot say, in the case now before us, that the action of the lower court was void on its face or that the answer of defendant does not set out a defense. We have carefully examined all of the authorities cited by plaintiff, particularly with reference to the definitions of words found in articles 6 and 7 of chapter 24, such as “lake,” “overflowed land,” “surface water,” “swamp land” and the like, but even assuming for the argument that 24-705 prohibits the drainage of any lake of two acres or more in extent in a drainage district created under the provisions of article 6, yet we cannot agree with plaintiff that the order of the district court shows on its face that defendant district proposes to and will drain the two alleged lakes. To so hold would in effect be saying that as a matter of law the land found by the district court to be wet, overflowed, swamp and submerged land was in fact the two lakes in question, and we cannot do so.
From what has been said it follows that plaintiff’s motion to strike from the answer is sustained in the one particular heretofore mentioned, the remaining grounds are denied and plaintiff’s motion for judgment on the pleadings is denied. | [
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The opinion of the court was delivered by
Parker, J.:
While the estate of John West, deceased, was being administered in the probate court of Sherman county some of his heirs at law filed objections to final settlement, charging the administrator had failed to properly collect and inventory assets of the estate and asking for the removal of such fiduciary and the appointment of another in his stead. These objections and requests were all overruled and denied and the probate court proceeded to close the estate. In due time the disgruntled heirs appealed to the district court from the decree of final settlement and from the order overruling the objections made prior to its rendition. Thereupon, Ora West, as administrator of the estate, moved to dismiss the appeal from probate court on jurisdictional grounds. This motion was overruled by the district court. Instead of acquiescing in such ruling and proceeding with the trial of the probate appeal on its merits the administrator served notice of appeal and now insists that this court should determine whether the trial court’s action in denying his motion was erroneous.
Thus it becomes immediately apparent the question of our jurisdiction in the case at bar, which we pause to note must be first determined before giving consideration to the merits of any appeal even though the parties themselves have not raised it (Pulliam v. Pulliam, 163 Kan. 497, 498, 183 P. 2d 220; Asendorf v. Asendorf, 162 Kan. 310, 176 P. 2d 535; In re Gambrell, 161 Kan. 4, 165 P. 2d 760; Shively v. Burr, 157 Kan. 336, 139 P. 2d 401; Vrooman Co. v. Summer, 110 Kan. 662, 205 Pac. 609), depends solely upon whether, under our code of civil procedure (G. S. 1935, 60-3302, 60-3303), the overruling of the motion to dismiss the appeal by the district court is to be regarded as a final order and therefore subject to appellate review.
The question now to be decided is neither new nor difficult of determination. Throughout the years this court has repeatedly held that it is without jurisdiction to entertain attempted appeals from district court orders denying motions to. dismiss appeals from other tribunals for the reason that rulings of such character are not “final orders” within the meaning of that term as used in the two sections of the statute heretofore cited.
The foregoing rule has been followed and applied in numerous and divers situations down to and including the recent past, see Anderson v. Higgins, 35 Kan. 201, 10 Pac. 570, where the motion was to dismiss an appeal from a justice of the peace; Montgomery Ward & Co. v. Ellis, 152 Kan. 320, 103 P. 2d 817, where the motion was to dismiss an appeal from a city court; Kansas State Highway Comm. v. Moore, 166 Kan. 408, 201 P. 2d 652, and Heiman v. State Highway Comm., 146 Kan. 315, 69 P. 2d 685, where the motions were to dismiss appeals from awards made in condemnation proceedings. It has likewise been steadfastly adhered to under many other conditions and circumstances in many other decisions, all of which, including those previously cited; are based upon the salutary principle that a ruling by a trial court on a motion which does not have the effect of terminating an action or foreclosing the parties thereto from thereafter asserting the matters therein sought to be determined never deprives any litigant of substantial rights but at the most merely postpones their final determination until after the trial court has been afforded an opportunity to proceed with and dispose of the cause upon its permit, e. g., Maynard v. Bank, 105 Kan. 259, 182 Pac. 542, where the motion was to dismiss for improper joinder; Oil Co. v. Beutner, 101 Kan. 505, 167 Pac. 1061, where the motion was to set aside service; Edwards v. City of Neodesha, 110 Kan. 492, 204 Pac. 708, -where the motion was to dismiss the action as to certain parties; Pulliam v. Pulliam, 163 Kan. 497, 183 P. 2d 220, where the motion was to strike a petition from the files; and Singleton v. State Highway Comm., 166 Kan. 406, 201 P. 2d 650, where the motion was to strike an appeal from an award of appraisers in a condemnation proceedings.
We are not, however, obliged to depend upon authorities dealing generally with the principle in order to arrive at a decision in the instant case. Similar conclusions have been reached in cases dealing specifically with the appealability of orders denying identical motions.
In re Estate of Johnson, 147 Kan. 12, 75 P. 2d 813, was a case where one phase of the appeal turned on the question whether a district court had erred in denying an executor’s motion to dismiss an appeal from the probate court. In that action we held denial of such motion was not a final order and that an appeal to this court did not lie.
In re Estate of Whittelsey, 156 Kan. 157, 131 P. 2d 911, adheres to the same rule although the question came up in a different way. In that case the executors representing the estate had filed a motion in probate court to strike and dismiss a petition for the allowance of a demand against the estate on the ground the claim was barred by the statute of limitations. The probate court denied their motion but later disallowed the demand. The claimant appealed to the district court. There, the executors filed a motion to dismiss the appeal which was sustained. The claimant then appealed to this court/ contending that the motion to dismiss filed in the district court was res judicata and binding on the executors for the reason the same questions had been determined by the adverse ruling in probate court on their motion to strike and dismiss, in which they had acquiesced by failing to appeal. We denied the contention, holding that an order overruling such a motion was not an order on which error could be predicated until final disposition of the cause.
That is not all. In In re Estate of Grindrod, 158 Kan. 345, 148 P. 2d 278, the appellants in this court had filed motions in the district court to dismiss an appeal from probate court based upon the ground the district court had no jurisdiction of the subject matter. Their motions were overruled and they made no attempt to appeal. Later they lodged demurrers in the district court against a pleading filed by the appellee which raised the same jurisdictional questions. These demurrers were also overruled. On appeal to this court appellee argued that since the demurrers raised the identical questions which were determined by the orders overruling the motions to dismiss the appellants were precluded from having appellate review of the rulings on their demurrers because they had failed to appeal from the adverse rulings on their motions to dismiss. We rejected appellee’s contention, holding that the orders denying the motions to dismiss the appeal were not final orders and therefore unappealable.
Of little import but nevertheless interesting to note is the fact that the two cases last mentioned were decided long after the effective date of the Kansas probate code. Thus any claim the new enactment has resulted in or requires a change of the established rule is obviated.
The decisions to which we have heretofore referred clearly demonstrate that the ruling of which appellant here complains is not now subject to appellate review. It follows the appeal in the instant case must be and it is hereby dismissed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for damages sustained in an automobile accident. A portion of defendant’s answer was stricken and he appeals.
In his petition plaintiff alleged in detail that he was injured because of defendant’s negligence in so operating his automobile that it ran into the rear of plaintiff’s automobile ,and caused it to overturn. It was alleged that defendant was negligent in driving his car while under the influence of intoxicating liquor; at a high rate of speed; in not keeping a reasonable, safe distance behind plaintiff, or if he desired to pass, in the manner in which he attempted to do so; in driving in close proximity to and coming in contact with plaintiff’s car while traveling in excess of sixty-five miles per hour, and in other particulars not necessary to detail.
Defendant filed an answer containing a general demurrer, a general denial and a plea of contributory negligence. As a result of a motion to make definite, an amended answer was filed.' As a result of a motion to make definite and certain and a motion to strike, defendant filed his second amended answer. It contained a general demurrer, a general denial, a plea of contributory negligence, the paragraph later quoted and allegations setting forth defendant’s version of events leading up to and culminating in the plaintiff’s injuries.
Plaintiff then filed his motion that, because it was superfluous, irrelevant and immaterial and did not constitute a defense, there should be stricken from the second amended answer the following paragraph:
“The defendant further alleges that the plaintiff was at all times guilty of negligence, per se, by reason of the fact that the said plaintiff was at all times pertinent herein engaged in an unlawful mission, to-wit: Bootlegging intoxicating liquor; that he drove from Eureka to a rendezvous and met the plaintiff and two other men well known to the plaintiff at a point about two miles east of El Dorado on Highway No. 54 where he sold and dispensed a quantity of bootleg, intoxicating liquor to this defendant, all of which said sale and dispensing was and is contrary to the laws of Kansas made and provided; that immediately after buying said intoxicating liquor of and from the plaintiff, the defendant drank a quantity of it; the defendant denies that he became intoxicated by reason thereof, but alleges that if he did become intoxicated, or as a result of said drinking was under the influence of intoxicating liquor, as a result of drinking said liquor sold to him by the plaintiff, and if as the plaintiff proceeded easterly in his automobile from the point where the parties had met to the point where the accident occurred, and that if the defendant was guilty of any or all of the acts of negligence alleged in the petition, said acts of negligence were caused by the defendant’s state, as result of having drunk liquor purchased from the plaintiff by the defendant, all of which said alleged acts were contributed to by the plaintiff as a result of his act of selling to the defendant said intoxicating liquor.”
That motion was sustained and the defendant has appealed, assigning the ruling as error.
We notice first the appellee’s contention that the ruling complained of is not an appealable order, and our attention is directed to Bankers Investment Co. v. Butts, 128 Kan. 213, 214, 276 Pac. 824, and other cases of like import. Appellee recognizes, however, that under Funkhouser Equipment Co. v. Carroll, 161 Kan. 428, 432, 168 P. 2d 918, and cases cited, that if the allegations stricken constituted a defense the motion had the attributes of a demurrer and the ruling would then be appealable. Under the circumstances we must examine the stricken allegations to determine whether they state a defense to plaintiff’s petition.
In support of his contention that the allegations quoted constituted a defense, the appellant directs our attention to certain principles of the law of torts that it is the general policy of courts not to permit a person to take advantage of his own wrong, or to found any claim on his own iniquity, and as a general rule that no action will lie to recover on a claim based or depending upon an illegal transaction to which the plaintiff was a party (52 Am. Jur. 436), and if the illegal act to which the plaintiff is a party is a concurring or the proximate cause of the injury of which he complains, he generally has no right of action to damages therefor (1 C. J. S. 999) and he argues that when plaintiff sold and delivered whisky to defendant his own conduct in so doing set in motion the chain of events leading to plaintff’s injuries. He argues further that plaintiff’s unlawful act created the situation out of which his injuries were incurred, and in a sense, were self-inflicted, and that the law will not permit a person to recover for an injury which he helps inflict on himself. In support he directs attention to Gilmore v. Fuller, 198 Ill. 130, 65 N. E. 84, 60 L. R. A. 286, where it was held that one participating in an unlawfully conducted charivari party could not recover for injuries inflicted by another member of the party, and to Bowlan v. Lunsford, 176 Okla. 115, 54 P. 2d 666, where a woman who submitted to an abortion sought recovery of damages from one who induced her to submit to the operation and was denied relief.
Appellant also argues that the mere fact appellee is a bootlegger does not prevent his recovery, nor does the fact he sold the whisky to appellant, and it is only when these facts are coupled with the further fact that appellant became intoxicated on that whisky that he is prevented from recovery; that the principle of the parties being in equal wrong does not operate unless there is some connection between the plaintiff’s wrongful conduct and his injury but that such connection is clearly stated in the stricken allegations.
Appellant also directs attention to G. S. 1935, 21-2150, which provides that “Every wife, child, parent, guardian or employer, or other person who shall be injured in person or property, ... by any intoxicated person, or in consequence of intoxication, . . . shall have a right of action, . . . against any person who shall, by selling, bartering or giving intoxicating liquors, have caused the intoxication of such person, for all damages actually sustained, . . .” and to authorities which we need not review, holding that the words “other person” in similar statutes in other jurisdictions cover those other than the specific persons named in such statutes, and would include the appellant. Appellant argues that under the above statute appellee would have been liable to any third person who might have been injured by reason of appellant’s intoxication; that such third person would have a cause of action against both appellee and appellant, and since appellee would have been so liable, it follows he cannot recover when he is the victim of his own wrong. In support he relies on Aldrich v. Harvey, 50 Vt. 162, 28 Am. Rep. 501, where a tavern keeper sold liquor to one who became disorderly and was refused further accommodations. Such person left and later returned and assaulted the proprietor, who brought action against the offender. A judgment in his favor was reversed, the appellate court holding that under the Vermont statute, if the plaintiff, by voluntary act, had placed himself in relation to the defendant as a co-worker in the same mischief and conspiracy it was not claimed he could recover, and that the law declared not that the injuries were the remote consequences of the defendant’s act but the proximate and direct cause, and the plaintiff the author of it, and that he could not recover.
Appellee answers the appellant’s argument by directing attention to authorities that at common law no right of action existed against the seller to one injured by the acts of an intoxicated person, for the reason the proximate cause of the injury was the act of the purchaser and not the act of the seller, and that while civil damage acts have been passed modifying the common law, the remedy exists only to the extent provided for in such statutes, and that the common-law rule prevails in a case not coming under such a statute (48 C. J. S. 716) and that although under such statutes the intoxicated person himself sometimes has a cause of action against the liquor seller, in no case can the seller recover damages from the intoxicated person for injuries sustained in consequence of the acts of the latter (48 C. J. S. 725), and that the statute relied on by the appellant has no application in the instant case.
Appellee contends that his action is one at common law, and he is not precluded from recovery unless the alleged illegal act on his part is a concurring or proximate cause of the injury of which he complains, but that he can maintain his action where the wrong did not contribute to or was not the cause of the. injury complained of, and that a defendant will not be permitted to set up his own wrong in defense of an action by an innocent plaintiff, and that it is only upon the grounds of public policy and not out of consideration for the defendant that he is permitted to set up the wrong when the parties are in pari delicto insofar as the sale and purchase of the liquor was concerned, and that transaction was completed and over when he delivered the liquor and left the scene, and that thereafter the parties were not in equal fault.
Appellee further argues that even though it be conceded that appellant had a defense under G. S. 1935, 21-2150, if the facts so warranted, it was necessary that defendant be intoxicated (Coy v. Cutting, 138 Kan. 109, 23 P. 2d 458) and that he had specifically denied that fact, and therefore was not within the purview of the statute. In his second amended answer appellant denied all allegations except such as are specifically admitted. In the portion stricken he alleged he drank a quantity of the liquor and denied “that he became intoxicated by reason thereof, but alleges that if he did become intoxicated, or as a result of said drinking was under the influence of intoxicating liquor,” the acts of negligence were caused by his condition. Although not exactly so stated, the above allegations express an alternative situation.
In Miller v. Johnson, 155 Kan. 829, 130 P. 2d 547, this court considered a pleading analogous to that here presented, and held:
“In construing a pleading whose averments are in the alternative, the general rule is that the construction least favorable to the pleader is to be adopted.” (Syl. ¶ 1.)
The interpretation least favorable to the pleader is that he was not intoxicated, and so considered he would not be within the act, the provisions of which he seeks to relieve him of liability.
In our opinion, however, there is a more fundamental reason for affirming the trial court. As has been pointed out, at common law, persons injured in person or property by an intoxicated person had no cause of action against the person selling the intoxicating liquor to the offender. The above statute conferred such a right, and notwithstanding general statements that statutes in derogation of the common law are to be strictly construed, which incidentally is not the law in Kansas (G. S. 1935, 77-109), it is the law that one claiming to be within the protection of the act must so show. (See, e. g., Conroy v. Perry, 26 Kan. 472, syl. ¶ 2; Oil Co. v. McEvoy, 75 Kan. 515, 517, 89 Pac. 1048; and Spalding Lumber Co. v. Slusher, 121 Kan. 155, 157, 246 Pac. 999.), The statute in question does not pretend to give the intoxicated person any cause of action against the seller, nor does it give the seller any cause of action against the intoxicated person. For the purpose of suits of one against the other, the basis must be something other than the above statute. Appellee contends, and we think properly so, that his action is against the appellant for common-law negligence. The stricken allegations of the answer do not disclose that as to that negligence the parties were in pari delicto, nor do they disclose a defense to plaintiff’s cause of action.
In our opinion the ruling of the trial court was correct, and considering that ruling as appealable, it is affirmed. | [
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The opinion of the court was delivered by
Parker, J.:
In this workmen’s compensation case the commissioner found the claimant was entitled to compensation for twenty-five percent permanent partial general disability beginning one week after the date of an accidental injury for a total period not to exceed 415 weeks payable at the rate of $7.11 per week and entered his award accordingly. On appeal to the district court the findings of the commissioner were approved and the claimant was granted a similar award and judgment. The employer and insurance carrier appeal.
By stipulation at the hearing before the commissioner and at the trial in district court it was agreed the claimant met with personal injury by accident on February 26, 1947; that there was due notice of injury; that the relationship of employer and workman existed on such date; that the parties were governed by the workmen’s compensation act; that claim was made as required by law; that the Hartford Accident & Indemnity Company was the insurance carrier and a proper party to the action; that no compensation had been paid for the injury; that some medical treatment was furnished by the respondent’s physicians; and that the claimant’s average weekly wage was $47.40.
From an examination of the evidence disclosed by the record it appears the circumstances and conditions under which the claimant was working and the events leading up to the institution of his claim for compensation are not in serious dispute and for our purposes can be stated thus: The claimant was employed on the shipping dock of respondent’s plant in Kansas City and up to and for several weeks subsequent to the date of his alleged accident his job was that of a trucker using a two-wheeled toe truck to carry packages to appropriate spots on the dock from the scale house. This house was in the center of the dock and there was a runway leading to it from each side eighteen or twenty inches above the floor, with rollers embedded in its surface. The packages were made up inside the plant and placed on this runway where employees pushed them down to the scale house. They were then weighed and dumped out' onto the floor of the dock. They ranged in weight from two or three pounds to 450 pounds or thereabouts. Claimant’s job at and before and for some time after his alleged accident was that of an off-bearer, picking up these packages and hauling them away on his two-wheeled rubber-tired toe truck. In order to load a heavy box, it was necessary for claimant to push it away, put the toe of the truck under the edge of the box, and then pull such box back onto the truck, after which he wheeled it away to its destination. In the performance of this work claimant wrenched his back while reaching out to pull one of the boxes onto this truck. The accident occurred Wednesday morning, February 26, 1947, and disabled him from working for ten or fifteen minutes. He was then able to resume his work. He said nothing about the matter to his supervisor on that day but talked to him on Friday and told him he had wrenched his back. The supervisor asked if he wanted to go to a doctor to which inquiry claimant replied he would wait until Monday and if it was not better he would go then. The following Monday afternoon the claimant went to the office of Dioctor Regiér, the respondent’s physician, accompanied by his superintendent. There he was examined, taped up and sent back to work with a light-work certificate. Claimant gave this certificate to the superintendent who, after looking it over, instructed him to give it to his supervisor. He did so. That was the last he heard of it for several days and no arrangements were made to give him lighter work. About eight or nine days after the accident claimant inquired of his supervisor as to what they were going to do about his light-work certificate. The latter replied he did not know. That same .day he and the supervisor went back to the same physician for another examination. He was advised respondent had given that individual orders not to issue any more light-work certificates and that employees would either work or go home. Claimant went back and kept on working but within a few days, on his own initiative, he ceased work on the toe truck and started pushing packages on the runway or conveyor line which was lighter and easier work. The respondent made no objection to this change and claimant remained on the latter job at the same wage until March 20, 1947, the date on which he filed his claim for compensation. In fact the record discloses he continued to work on that job without any loss of time or pay until the day before the hearing before the commissioner.
Little if anything is to be gained by a review of the evidence per taining to the character, extent or duration, of the disability suffered by claimant as a result of his accidental injury. The rule in this jurisdiction, so often repeated as to hardly require reference to our decisions, is that it is the function of the trial court to pass upon the facts in a.compensation case and that under G. S. 1935, 44-556, this court is limited on appellate review to “questions of law” which, in the final analysis, simply means that its duty is to determine whether the trial court’s factual findings are supported by any substantial competent evidence (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846; Walker v. Arrow Well Servicing Co., 163 Kan. 776, 186 P. 2d 104; Conner v. M & M Packing Co., 166 Kan. 98, 101, 199 P. 2d 458). Indeed, in applying this rule, we have expressly held that the existence, the extent, and the duration of an injured workman’s incapacity is a question of fact for the trial court to determine. (Brewer v. Vinegar Hill Zinc Co., 119 Kan. 355, 239 Pac. 762; Voiles v. Proctor & Gamble Mfg. Co., 141 Kan. 451, 41 P. 2d 723; Mihoover v. Winter Livestock Commission Co., 155 Kan. 432, 125 P. 2d 363; Cowan v. Kerford Quarry Co., 146 Kan. 682, 685, 72 P. 2d 999, and cases there cited; see, also, West’s Kansas Digest “Workmen’s Compensation,” §§ 1939, 1940.)
In the instant case the appellee claimed to be suffering from a disabling low back injury. In his testimony he described such injury, stated that prior to its occurrence he had nothing wrong with him and that subsequent thereto it interfered in numerous ways with, his performance of the work he had been doing and that it caused excruciating pain. There was medical testimony to the effect he had the symptoms and conditions of a bad back; that whatever, injury had occurred to his back caused pain; that he appeared to be suffering from an extruded intervertebral disc; that his disability was permanent and partial and remained the same regardless of its cause, and that a fair approximation of his incapacity was twenty-five percent. Without reference to other testimony of like import it suffices to say that what has been heretofore related upholds the trial court’s finding of permanent partial general disability.
At this point it should be stated appellants do not question the correctness of the amount allowed as compensation under the award if the trial court did not err in the rendition of the award itself.
Appellants’ first and principal contention has to do with G. S. 1935, 44-501, fixing the obligation between employer and employee under the compensation act, and is based upon the construction they gave to that particular portion thereof which reads as follows:
. . Provided, That (a) the employer shall not be liable under this act in respect of any injury which does not disable the workman for a period of at least one week from earning full wages at the work at which he is employed;
As applied to the particular facts of this case the gist of appellants’ argument is that because the record discloses the appellee after being injured went back to his old job and performed the duties of his employment with respect thereto at the same wage for a period of more than seven days he has no valid claim for compensation. To uphold this position would require us to conclude the portion of the statutory section just quoted means, not only in this case but in compensation cases generally, that a workman within the purview of the compensation act who suffers an accidental injury but goes back to work for a period of one week and performs the duty of his position at the same wage is precluded from thereafter recovering compensation notwithstanding he performs that work while partially incapacitated and even though subsequent unforeseen complications arise which cause permanent partial incapacity. We do not believe such a construction complies with the intent of the legislature, is warranted by the quoted language itself or is in accord with our former decisions construing its terms, which we pause to note, have been a part and portion of the compensation act since it was first enacted in 1911.
In our opinion proper construction to be given the portion of the statute on which appellants now rely to recover the judgment was long ago indicated and decided by this court when at page 850 of the opinion of Raffaghelle v. Russell, 103 Kan. 849, 176 Pac. 640, it said:
“The statute quoted does not mean that unless a workman’s injuries totally disable him from laboring for the first two weeks succeeding his mishap he cannot recover. It means that unless the injury is sufficiently serious to disable him for two weeks, the injury is considered by the statute to be too trivial for its concern. . . .” (p. 850.)
And held:
“A workman who is injured in the course of his employment is not to be denied compensation for such injury and consequent diminished earning capacity merely because his injury was not so serious as to totally disable him from labor for the first two weeks immediately succeeding the accident.
“An injured workman who only in pain and distress and with the friendly help of his fellow workmen can earn as much as he did before his injury, may maintain an action against his employer for permanent partial incapacity under the workmen’s compensation act.” (Syl. Hfll,2.)
To the same effect is Gailey v. Manufacturing Co., 98 Kan. 53, 157 Pac. 431, which holds:
“Under the workmen’s compensation act (Laws 1911, ch. 218; Laws 1913, ch. 216) an employee who, as a result of an injury to his fingers, cannot tightly close them in his hand, and is thereby rendered less able to perform his work, is partially incapacitated from performing labor.
“An employee partially incapacitated by an injury from performing his labor does not lose his right to compensation under the workmen’s compensation act by remaining in the employment of his master at his former wages.” (Syl. Ml,2.)
See, also, Harvey v. Eldridge & Majors Packing Co., 128 Kan. 403, 278 Pac. 16, which cites the two decisions last mentioned, approves the rule therein announced, and holds:
“Under the provisions of the workmen’s compensation law (act of 1911 and amendments thereto) a workman partially incapacitated is not to be denied compensation on account of resuming work for the same, or greater, remuneration than before his injury.
“Nor is an injured workman to be denied compensation where, at the request of his employer, who is short-handed, he returns to his employment and does such work as he can in spite of his injury.” (Syl. M1,2.)
Further support for the rule announced in the foregoing decisions is to be found at page 717 of the opinion of Rupp v. Jacobs, 149 Kan. 712, 88 P. 2d 1102, where Gailey v. Manufacturing Co., supra, is quoted with approval and it is said “an employee partially incapacitated does not lose the right to compensation by remaining in the employment of his master at his former wages.”
In the instant case, upon substantial competent evidence, the trial court found claimant’s injury was sufficiently serious to cause him permanent partial disability for far longer than the one week period mentioned in the heretofore quoted section of the statute. We cannot disturb that finding of fact. With such a factual situation, under the foregoing decisions, claimant’s injury was compensable under the act notwithstanding he returned to work within one week period and continued the work for his employer at the same wage and for the length of time and under the conditions and circumstances herein indicated. To hold otherwise would do violence to the well-established rule long recognized by the court (See Ellis v. Kroger Grocery Co., 159 Kan. 213, 221, 152 P. 2d 860; Clifford v. Eacrett, 163 Kan. 471, 475, 183 P. 2d 861, and cases there cited) that the existing provisions of the workmen’s compensation act must be liberally construed in favor of the workman with the view of effecting its purpose.
Perhaps in anticipation of the conclusion just announced appellants suggest that, even so, liability of employers under the proviso in question should be limited to situations where employees are either unable to perform all the former duties of their employment or carry on with the aid and assistance of their co-workers. Not so. The intent and purpose of such provision is to protect employers from trivial and inconsequential claims, not’to preclude workmen who have bona fide claims from asserting them within 120 days as authorized by G. S. 1947 Supp. 44-520a.
In arriving at the conclusion just announced we have not been unmindful of Whitby v. Armour & Co., 114 Kan. 445, 219 Pac. 253, cited by appellants in support of their position. The decision in that case was based on failure of the claimant to make a claim for compensation within the time prescribed by the act and is not decisive. Nor have we overlooked Chappell v. Morris & Co., 118 Kan. 210, 235 Pac. 117, on which they heavily rely. We are not disposed to attempt to distinguish this last case even though that might be done. It is, however, to be noted it merely upholds a trial court’s ruling in sustaining a demurrer to evidence and does not involve the review of an award based upon favorable findings of fact such as we have here. Be that as it may, it suffices to say that if what is there said and held is suscepitble of a construction that the heretofore quoted proviso of G. S. 1935, 44-501, precludes a workman from recovering an award for compensation under the facts and circumstances of this case, it is contrary to what has been held in the other decisions to which we have referred and should be and is hereby disapproved.
We come now to appellants’ final contention that appellee’s refusal to submit to a myelographic examination for the purpose of ascertaining if the source of his incapacity was an extruded intervertebral disc and if so to submit to a surgical operation by some neurosurgeon for its correction compelled the district court to refuse him an award for compensation. This claim requires far less consideration than the one we have just determined.
Summarized, it can be said the trial court had before it evidence that such an examination might not reveal the source of claimant’s incapacity, that even if it did disclose an injured disc an operation might not be successful and in any event would leave the claimant with a ten percent permanent partial disability. It also had testimony to the effect that both the examination and the operation involved considerable pain and discomfort and that the operation itself was dangerous. In addition it also had testimony on the part of the claimant as to the reasons for his refusal to submit to either the examination or the operation. Upon consideration of all those facts it found the probabilities of a permanent cure were not great and that instead the weight of the testimony was there would be a residual permanent partial general disability even if the operation was performed. It further found the refusal of the claimant to undergo the examination or test and possibly the subsequent operation tendered by the appellants was not unreasonable and under all the facts and circumstances such refusal did not prevent his recovery.
This court has repeatedly held (Strong v. Iron & Metal Co., 109 Kan. 117, 198 Pac. 182; Gilbert v. Independent Construction Co., 121 Kan. 841, 250 Pac. 261; Gentry v. Williams Bros., 135 Kan. 408, 410, 10 P. 2d 856) the reasonableness of the refusal of an injured employee, seeking recovery of compensation under the act, to permit an operation to be performed is a question of fact to be determined by the trial court from all the evidence. It follows, under the rule limiting the scope of appellate review in compensation cases to questions of law, that where — as here — there is evidence to support trial findings of the character just described this court cannot disturb them.
We find nothing in the record or in the contentions advanced by appellants which requires a reversal of the judgment. It is therefore affirmed. | [
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for a money judgment. There was a jury trial. It appears that defendant in his answer had admitted an indebtedness to plaintiff in the sum of $216.39. His counsel in the opening statement tendered into court a cashier’s check in that sum, which tender was refused by plaintiff. The trial proceeded and on December 1, 1948, the jury returned a verdict for plaintiff in the sum of $595.95. On December 9 defendant filed a motion for a new trial, or, in the alternative, to reduce the judgment to $216.39. This motion came on for hearing on December 16, within the same term of court in which the trial was had. Plaintiff orally moved to strike the, motion for a new trial from the files because it had not been filed within three days after the verdict, as required by G. S. 1935, 60-3003. The court proceeded with the hearing, at which one witness called by defendant gave testimony. There was quite a little argument by counsel and colloquy between' court and counsel as to the trial, the evidence produced, and the papers taken to the jury room. The court overruled plaintiff’s motion to strike from the files defendant’s motion and announced that it was not satisfied with the verdict and that it would grant a new trial unless plaintiff would accept judgment for the sum tendered, $216.39, which plaintiff declined to do. The court therefore granted a new trial. The appeal is from that ruling.
Appellant first contends the court erred in not sustaining his motion to strike the motion for a new trial. Considered as a motion for a new trial, it was filed too late (G. S. 1935, 60-3003). The motion contained the alternative that the court reduce the judgment to the amount tendered. That part of the motion was addressed to the sound judicial discretion of the court and could be considered and ruled upon by the court during the same term the trial was had, even though it was filed more than three days after the verdict.
Our former decisions make it clear that the court not only has the authority, but it is the duty of the court to set aside a verdict and grant a new trial if the court is not satisfied with the verdict. The court should not render a judgment upon a verdict unless the verdict is approved by the court. Many authorities sustain these propositions. We cite a few of them. (Klopfenstein v. Traction Co., 109 Kan. 351, 353, 198 Pac. 930, where earlier cases are cited; Frakes v. Travelers Mutual Cas. Co., 148 Kan. 637, 84 P. 2d 871; Pugh v. City of Topeka, 151 Kan. 327, 99 P. 2d 862.)
The result is the judgment of the trial court must be affirmed. It is so ordered. | [
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The opinion of the court was delivered, by
Thiele, J.:
This was an action to recover on a policy of insurance. The defendant appeals from adverse rulings on its demurrer to plaintiff’s evidence, on its demurrer interposed at the close of all of the evidence, and on its motion for a new trial.
For present purposes it may be said the petition alleged that plaintiff, who was engaged in the poultry and egg business at Larned, Kansas, procured a policy of insurance on his trucks, a copy of the policy being attached to the petition. Generally, the policy covered certain specified trucks and limited coverage to their use within a 300 mile radius of Larned. By an endorsement, trips outside the radius were allowed upon payment of stated amounts, and “In all cases the additional premium for single trips herein referred to must be paid by the Insured in advance to the Home Office of the Company before the trip starts and any such trip must be made within five (5) days after such notice and payment.” Other endorsements on the policy are not of present importance. It was further alleged in the petition that the defendant, through its agent Harkness, had waived provisions of the territorial endorsement and had agreed that the policy of insurance would cover trips made by the insured upon notice given to defendant’s agent; that on December 12, 1945, plaintiff notified defendant’s agent Harkness that one of his trucks was leaving for Albuquerque, New Mexico,-and that thereafter defendant, through its agent, received and collected the additional premium of $5 which was paid by plaintiff; that on December 13, 1945, a collision occurred in the vicinity of Barton, New Mexico, between plaintiff’s truck' and the automobile of one Gonzales, resulting in damage to Gonzales, and in accordance with the terms of the policy a report was made to the defendant, which denied any and all liability and refused to investigate the collision or engage in the defense of plaintiff; that thereafter suit was filed in New Mexico by Gonzales against plaintiff, as a result of which plaintiff sustained a loss in the-total sum of $606.50; that plaintiff made due demand therefor from the defendant, which denied liability, and that by reason of all of his allegations plaintiff was entitled to recover judgment against the defendant in the sum of $606.50 together with a reasonable attorney’s fee, for which he prayed judgment.
In its answer defendant denied generally, admitted issuance of the policy of insurance, denied any waiver of any provision of the policy or that Harkness was authorized to vary or change any provision of the policy or its endorsements; alleged that no notice was given it of any contemplated trip beyond the territorial limit on December 12, 1945, and that no premium was paid therefor and that during the trip and at the time of the accident described in the petition plaintiff was without insurance coverage under any policy issued by the defendant, and it prayed that plaintiff take nothing under his pretended cause of action and that it have judgment for costs.
Plaintiff’s reply need not be noted.
Plaintiff offered considerable testimony tending to show that as the result of correspondence between Harkness, the local agent of the defendant, and one Groendycke, the defendant’s state agent, the restrictions of the policy as to extraterritorial trips may have been relaxed, but in view of our conclusion later stated we shall not review that testimony, further than to state that even assuming authority of either the state agent or Harkness to agree to any change, the only change was that notice of the trip and remittance of the extra premium was to be placed in the mail before the trip was made.
While we have grave doubt'that the proof disclosed any notice of any kind to the company by reason of a claimed telephone or other word-of-mouth notification by the plaintiff to the agent Harkness of the trip of December 12, 1945, it is clear that no premium was ever paid by the plaintiff to the defendant for the trip.
It may here be said that Harkness had written Groendycke that plaintiff could not always tell in advance when an extraterritorial trip would be made so that notice thereof and remittance could be made, but that he could guarantee payment of the additional premium. Groendycke answered that any arrangement Harkness made with the insured as to payment would be satisfactory as long as notification was given of the trip and that notice must be in the mail. What of the payment of the premium? In his testimony in behalf of plaintiff, Harkness was interrogated and attempted to answer by saying he presumed he was paid by plaintiff but an ob-’ jection that the answer was too indefinite and a motion that it be stricken were sustained.
Plaintiff as a witness in his own behalf was asked whether he paid a' premium for the trip of December 12, 1945, and answered he paid all bills of statements rendered. This answer was stricken as not responsive and he was then handed exhibit “G” to refresh his recollection and asked if he paid for the trip of December 12, 1945, and answered “Yes.” The exhibit to which he referred was a statement rendered to him by Harkness in August, 1946, and showed a number of items, one being for a trip of December 18th to Albuquerque. Exhibit “H” offered by plaintiff, which was a letter written by Harkness to the company under date of December 18, 1945, remitting $5 for the trip of December 18, 1945, disclosed that on December 18, 1945, a trip with another and different truck was made to Albuquerque, and that the payment made was for that trip. Plaintiff makes some argument that two premiums were paid, one by reason of exhibit “G” identified by plaintiff, and the second evidenced by exhibit “H.” The contention is against the record. Harkness remitted to the company for the trip of December 18th, as he had agreed to do under his arrangement noted heretofore, and the statement plaintiff paid was to repay Harkness for the payment advanced. Both entries referred to the trip of December 18, 1945, and not to any trip of December 12. This is made clear by a notation on the statement (exhibit “G”) rendered to plaintiff by Harkness that “The December 12 trip seems to have been missed when we made out previous statements.” There is no proof that payment of the premium for the December 12 trip was ever made by the plaintiff to either Harkness or the company, or that Harkness ever remitted to the company for plaintiff for that trip.
The result is that plaintiff failed to prove an element necessary to his l’ecovery and the defendant’s demurrer to his evidence should have been sustained.
The judgment of the trial court is reversed and the cause remanded with instructions to sustain the defendant’s demurrer to plaintiff’s evidence. | [
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The opinion of the court was delivered by
Parker, J.:
In this proceeding Donald K. Slater seeks the issuance of a writ of habeas corpus directing his release from the state penitentiary where he is now confined by the warden of that institution under concurrent sentences imposed by the district court of Reno county on October 12, 1946, upon pleas of guilty entered by him to two felony charges, namely, breaking prison (G. S. 1935, 21-732) and larceny of an automobile (G. S. 1935, 21-533).
Since the grounds relied on for the issuance of a writ can be stated and disposed of at the same time it will be unnecessary to detail the pleadings.
Petitioner’s first three claims, all based upon the premise he was prosecuted by information instead of indictment and hence deprived of rights guaranteed him by the federal and state constitutions, have been denied by this court in Bailey v. Hudspeth, 164 Kan. 600, 191 P. 2d 894, and numerous subsequent decisions, to which we adhere.
The remaining grounds on which petitioner relies for relief are factual in character. In their disposition we shall give all statements of fact made by the applicant, both in his pleadings and in affidavit form, the weight to which they would have been entitled had he been personally present and made them as a witness during the trial of his cause.
In grounds 4 and 5 of his application for a writ petitioner asserts that waivers of counsel executed and pleas of guilty entered by him in the two proceedings wherein he received the sentences heretofore described were obtained by threats, duress, fraud, deceit, force and coercion. His claims to that effect are supported solely by his own uncorroborated statements. On the other hand, they are refuted by the testimony of at least three witnesses. Moreover, it appears from a certified transcript of the proceedings had in the court below that the trial court was particularly careful about advising petitioner as to his constitutional and statutory rights under conditions and circumstances where, even if his claims pertaining thereto had not been controverted by testimony of responsible and reputable witnesses, he could not now be heard to say that either his waivers of counsel or his pleas of guilty were not freely and voluntarily made with full and complete information as to the consequences resulting therefrom.
Faced by a record such as has been here outlined we need not expressly hold, as we well might do, that petitioner’s claims with respect to the factual points in question are not true. The established rule in this jurisdiction, restated and reapproved in the recent case of Sims v. Hudspeth, 166 Kan. 667, 203 P. 2d 129, is that the unsupported and uncorroborated statements of petitioners in habeas corpus cases do not sustain the burden of proof when factual questions are in controversy or suffice to impeach the authenticity of recorded judicial proceedings. ,
The record fails to establish petitioner is illegally restrained of his liberty or entitled to any relief in habeas corpus. Therefore the writ is denied. | [
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The opinion of the court was delivered by
Price, J.:
This is a divorce action. The court granted a divorce to the plaintiff wife, awarded permanent alimony and made a division of the property. Both parties have appealed from the lower court’s judgment with reference to the property matters.
The evidence is not abstracted but the court made comprehensive findings of fact which show the following situation:
Plaintiff and defendant were married in 1911 and lived together as husband and wife in Salina until their separation in September, 1931. During this 20-year period eight children were born to them and at the time of their separation the youngest child was six months old and the oldest seventeen years of age. Defendant had been a butcher and meat cutter, having worked in grocery stores belonging to others until September, 1931, when he opened his own store in Salina and which -was still operated by him at the time of the divorce action. A woman other than the defendant’s wife had been employed in the same store with defendant for a considerable period prior to the separation of plaintiff and defendant in 1931. There had been considerable gossip concerning defendant and her which caused the plaintiff to object to and forbid her employment by defendant when he opened his own grocery store and meat market. At about that time defendant ceased living with plaintiff and some two years later the woman in question commenced working at defendant’s store and has ever since been so employed. She attended the entire trial as a witness for defendant.
The court found that the plaintiff at all times since her marriage to defendant had properly and faithfully conducted herself as his wife ; that the defendant, without provocation on the part of plaintiff and without any justifiable cause, left the home then occupied by plaintiff and defendant and their eight children and did not at any time thereafter return or offer to return to the home; and that after the defendant left his home in September of 1931 plaintiff devoted her entire time and efforts to keeping and maintaining a home for her eight children and that she had properly reared, nurtured and educated all of them. The defendant took no part whatever in the rearing • or caring for the children or in assisting plaintiff in performing such duties except to furnish plaintiff and the children with a place to live and with sufficient necessities of life in the way of food, together with a part of the clothing required for the family. A portion of such clothing and some living expenses in the meantime were provided by donations from relatives and by the older children as they arrived at an age where they could find employment and also from earnings of the plaintiff in part-time employment. The defendant for some time prior to their separation was morose and sullen toward the plaintiff and children and ever since had failed to show or exhibit any affection for the plaintiff or any of the children. At the time he left the home and his wife and children he rented a room over his store, in which he had ever since lived alone.
At the time of the separation of the parties their only property consisted of the home, together with an automobile and personal effects. Since that time defendant acquired considerable property and at the time the divorce action was tried in the spring of 1948 he owned the home occupied by plaintiff and her three minor children, having a value of approximately $10,000; a 20-acre tract in Saline county valued at $8,000; a section of land in Saline county valued at $25,600; livestock valued at $16,659; two automobiles and two trucks worth several thousand dollars; a new tractor for which he had paid approximately $2,400; and his grocery and meat market in Salina. In addition thereto the court found that during ' the two years preceding the divorce action defendant had sold livestock totalling $8,890.28 and that his net profit from the operation of his grocery store and meat market amounted to approximately $420 per month.
The court further found that the defendant was guilty of abandonment for more than one year and of extreme cruelty and awarded a divorce to the plaintiff. She was given the care, custody and control of the three minor children and defendant was ordered to pay the sum of $30 per month for the support of one of them.
The defendant was ordered to pay alimony in the amount of $10,000, the same being payable $500 forthwith and the remainder at the rate of $100 monthly until the total amount shall have been, paid. The residence property occupied by plaintiff and her children as a home was awarded to her and in addition thereto the above-mentioned 20-acre tract, valued at $8,000, was set off to her, free and clear of any claim of 'the defendant. Following a further hearing had on post-trial motions the court awarded an additional sum of $3,500 to plaintiff by way of a further division of property, the same to be paid forthwith, and allowed plaintiff’s attorneys a total sum of $1,200 for their services in the district court proceedings.
In his appeal the defendant makes no complaint about the granting of the divorce or as to the award of $10,000 alimony and the home to the plaintiff, and his sole argument is based on the proposition that the court erred in making a “division” of the property for the reason that the 20-acre tract and the cash award of $3,500 were not property “as shall have been acquired by the parties jointly during their marriage.” In brief, the plaintiff contends that all of the property owned by defendant at the time of the divorce action was acquired by the parties jointly during their marriage and that the court should have awarded to her more than it did, together with additional attorney fees.
In other words, plaintiff contends that the division of property is inequitable as not being sufficient, and defendant argues that the court had no jurisdiction whatever to award plaintiff anything other than the home and the alimony in the amount of $10,000. We will first consider the contention of the defendant.
The pertinent portion of the statute (G. S. 1947 Supp. 60-1511) dealing with a “division” of property is as follows:
. . And to such property, whether real or personal, as shall have been acquired by the parties jointly during their marriage, whether the title thereto be in either or both of said parties, the court shall make such division between the parties respectively as may appear just and reasonable, by a division of the property in kind, or by setting the same apart to one of the parties, and requiring the other thereof to pay such sum as may be just and proper to effect a fair and just division thereof. . . .”
This provision has been construed many times to mean just what it says, that is, in a divorce action where it appears that property has been acquired by the parties jointly during their marriage the court may direct a division of the property in kind or may set the same apart to one of the parties, as may appear just and reasonable. The defendant concedes this to be the law and his whole argument is based on the premise that since the only property owned by the parties at the time of their separation in 1931 consisted of the home, automobile and personal effects, all of the balance of property owned by him at the time of the divorce action was acquired by him separately and is not to be considered as being “acquired by the parties jointly during their marriage.” This court apparently has never passed on the precise question as to when property is or is not to be considered as being “acquired by the parties jointly during their marriage” and the textbooks do not throw much light on the matter. In 27 C. J. S. 1122, Divorce, § 294, subdivision (b), we find the following general definition:
“Jointly acquired property within the meaning of a statute providing for distribution thereof in a divorce action has been held to mean property accumulated by the joint industry of the husband and wife during coverture.”
The lower court, in passing on the matter, rendered the following conclusion of law with reférence to this question:
“While the property of the defendant, other than the home in which the parties resided prior to their separation, has been accumulated by the defendant subsequent to the separation of the parties in 1931, yet, inasmuch as there was no dissolution of the marriage relationship and plaintiff has devoted all of her time and effort to the rearing and care of the eight children of the parties, thereby leaving the defendant free to devote his entire time to his business pursuits, plaintiff must be said to have contributed to the accumulation of such property, and plaintiff is entitled to a division of the same in addition to the alimony hereinbefore allowed her, and to be awarded her as her sole and separate property free from any lien, right, claim or interest of any kind or nature on the part of the defendant therein, the following described property, to-wit: . . .”
This opinion might very easily be extended indefinitely on the question of the extent of plaintiff’s efforts and industry in carrying out her part of the marriage relationship in the rearing, caring for and educating the eight minor children of the parties during the long period of years they were separated but it is sufficient to say that under the facts of this case we have no hesitancy whatsoever in saying that the plaintiff must be said to have contributed to the accumulation of the property and that surely in this sense of the word it was “acquired by the parties jointly during their marriage” within the meaning of the provision of the statute heretofore quoted. In fact, we think that the trial court very aptly and properly stated the matter in its conclusion. Defendant relies heavily on the case of Joiner v. Joiner, 131 Tex. 27, 112 S. W. 2d 1049, in which the Texas court construed the Oklahoma statute similar to ours. While there is some similarity between that case and the one under consideration, yet the facts and reasoning of the court are easily distinguishable from this case.
And so we hold that under the facts of this case the property in question is property “acquired by the parties jointly during their marriage” as contemplated by the provision of the statute and thus was subject to division between the parties in the sound discretion of the court.
There remains the question of plaintiff’s cross-appeal — that is, was the award of alimony and property to her sufficient, just and equitable in view of all the circumstances? This court has long adhered to the view that an award of alimony and division of property made by the trial court in a divorce action will not be disturbed unless it is clearly shown that there was an abuse of discretion. (Walno v. Walno, 164 Kan. 620, 192 P. 2d 165.) The opinion in that case reviews many of our earlier decisions as to what was deemed fair and equitable under the facts of each particular case and there is no need here to discuss them in detail. The award of the money and property to the plaintiff in this case amounts to considerably less than one-half of the property owned by defendant at the time of the divorce proceeding and under the circumstances we cannot say that it was excessive. On the other hand, it appears to us that the plaintiff has been adequately provided for by the decree. The trial court, after hearing the testimony concerning all matters in issue was in a much better position to determine that question than this court is on appeal and we cannot say that the court abused its sound discretion or that its ruling should be disturbed.
Further, we hold that plaintiff’s attorney fee for services in the lower court in the amount of $1,200 was fair and reasonable and should stand.
From what has been said it therefore follows that all orders and judgments appealed from the lower court should be and they are hereby affirmed. | [
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The opinion of the court was delivered by
Aen, J.:
This is an appeal from the ruling of the district court of McPherson county sustaining a demurrer to plaintiffs’ evidence in an action to recover for damage to a shipment of cattle by reason of its delay in transit. Evidence showed that plaintiffs ordered eighteen railroad cars for the purpose of shipping eighteen carloads of cattle from Plains, Kan., to Emporia, Kan. The eighteen cars were set in at Plains on December 31, 1946, ready for loading. Plaintiffs loaded ten cars which department for Emporia on December 31. Plaintiffs thereupon arranged with the Rock Island Railroad Company (one of defendants) to use the other eight cars to ship eight carloads of cattle from Plains to Scott City and plaintiff prepared a bill of lading for these eight cars to Scott City instead of Emporia. The bill for the eight cars showed the route to be: Rock Island-Hutchinson-A. T. & S. F. These eight carloads of cattle were loaded and departed from Plains at about one o’clock on the morning of January 2, 1947, en route for Scott City, and arrived at Bucklin, Kan. (58.3 miles northeast of Plains), at about five o’clock on the morning of January 2. These eight loads comprised 233 head of steers, and they remained at Bucklin from 5 a. m., January 2 until 10 a. m., January 6, at which time the Rock Island Railroad Company sent them to Dodge City, a distance of 26% miles northeast of Bucklin, where they arrived at 2:20 p. m. At Dodge City, these eight cars were turned over to the Santa Fe which transported them to Scott City, a distance of eighty-three miles, where they arrived at 8:00 or 8:30 p. m. the evening of January 6. Sometime the next morning, January 7, the Santa Fe spotted these eight cars at the chutes for unloading. The evidence in its most favorable light to the plaintiffs showed these additional facts: The facilities at Bucklin where the steers were kept for some four days and five hours were not proper for the caring, feeding and watering of livestock; that although the weather was bad at the time, Rock Island trains were continuing east from Bucklin to Hutchinson where transfer could have been made to the Santa Fe without such delay; that the Santa Fe trains were running every day between January 1 and January 7 although at times they may have been some late. One of the plaintiffs, Kline, as agent for the other plaintiff, Anderson Cattle Co., signed a contract on December 31 for the shipment of the eight carloads of steers (233 head) from Plains to Scott City, and of the ten carloads from Plains to Emporia. On December 31, the cattle were in good average stocker and feeder condition. Plaintiffs did not direct the Rock Island agent as to how the cattle should be routed to Scott City; the railroad made its own routing. Plaintiff Kline did not see the cattle after December 31 until the morning of January 7 in Scott City while they were being unloaded between 9 o’clock and 10 o’clock a. m. They were pretty well shrunken. He weighed a few of the cattle after they were unloaded, and they weighed approximately 700 pounds. In his opinion they weighed about 800 pounds when loaded at Plains. After the cattle were unloaded, they were taken about three or four miles northwest of Scott City, where they remained sixty-five days, without being mixed with any other cattle. When they were unloaded there were no cripples and no visible appearance of damage other than shrinkage in weight and a general tired appearance. During the sixty-five days they did not respond to the feed as such cattle normally should. He (Kline) saw them frequently during the sixty-five-day period. They were handled properly and suffered no mishap or injury during the sixty-five-day period. Cattle abused excessively do not respond as well as normal shipments. Normally it would take probably a week or ten days to get over the shipping. In this instance it would take at least thirty days. The cost of feeding the cattle for the sixty-five days was $21 and some cents per head. During the sixty-five days the cattle did not at any time become restored to the condition they would "have been in had they arrived on January 2 or 3. Plaintiffs did not learn of the delay at Bucklin and did not accompany the shipment of cattle from Plains to Scott City. There is a. normal shrinkage when cattle are shipped and these cattle would normally have shrunk five or six percent — sometimes moves up as high as ten or twelve percent. Plaintiff Kline was not no tified that the cattle had arrived at Scott City; he just happened to be going there on January 7 to see how they were getting along. The cost of feeding the cattle did not increase because of their condition on arrival at Scott City, but their condition on arrival did cause the cattle not to respond to feed and therefore to weigh less than they would have weighed except for the excessive shrinkage and hard handling. Mr. Anderson, president of plaintiff Anderson Cattle Co., saw these cattle in the middle of December and they were in good thrifty condition and gaining weight. The next time he saw them was in Scott City in the middle of January and they did not appear to be doing well although they were kept in extraordinarily well-equipped surroundings. They should have responded to feed and gained weight. They were still not gaining weight the middle of February and were not in as good condition as they were at Plains, Kan., in the middle of December. In Scott City they were being well taken care of and getting all the silage they could eat. Anderson had shipped cattle by rail for about forty-eight years. Ordinarily in a shipment from Plains to Scott City, a distance of approximately 160 miles, cattle would not suffer permanent damage. They would suffer a day or two setback before getting back to normal. Some cattle will be permanently injured and some less, depending on the vitality of the animal when he goes through that kind of punishment. The only way you can tell the extent of it is to go ahead and take care of the cattle and see what the results are. It cost $5,056.21 to feed the cattle for sixty-five days, and then the cattle had been restored only to the same place they would have been had they been transported and arrived at Scott City on January 2 or 3. The cattle weighed about 850 pounds full weight per head the middle of December, 1946; they had weighed 818% pounds per head on October 30, 1946. After being fed at the Parkinson ranch in Scott City for sixty-five days, they weighed 819 pounds. In his opinion the cattle could not be properly fed at the Bucklin stockyards. He was never informed as to the whereabouts or condition of the cattle by the Rock Island or Santa Fe from January 1 to January 7. They never asked for instructions as to how to feed or care for the cattle. He first learned of the delay in transit after they had arrived in Scott City. He filed his claim with the Santa Fe for a delay in shipping the cattle on January 27, 1947. Another witness, Burke, in the cattle business since 1911 and experienced in handling Mexican cattle, saw these cattle in the middle of December and they were in good condition, thriving and gaining weight. He later saw them at Scott City the middle of January, and they looked “awfully hard”; they looked like they had been abused and did not appear to be thriving and gaining although they had a wonderful home with plenty of food in feed boxes on the south side of windbreaks. Under normal conditions they should have gained weight.
Appellants (plaintiffs) contend that the defendants’ demurrer to the evidence was not sufficient to challenge the sufficiency of plaintiffs’ evidence as to the establishment of any amount of damages. However, the demurrer was upon the ground that plaintiffs’ evidence was insufficient to support a cause of action in favor of the plaintiffs and against the defendants, and if plaintiffs’ evidence had failed to prove any damage, the demurrer was broad enough to reach that objection.
From our examination of the abstracted evidence of plaintiffs, we believe the jury did have sufficient facts before it to determine the amount of damage without entering into speculation and conjecture. Appellees argue that plaintiffs’ evidence does not show the effect of the negligent delay upon plaintiffs’ cattle, but all of the evidence summarized above indicates otherwise. In this respect the plaintiffs’ evidence met the test of a demurrer and was a proper question for jury determination.
It is not argued by the appellee railroads- that plaintiffs’ evidence as to their alleged negligence in handling and delaying the transportation of the cattle shipment by requiring in excess of five days to make a 160-mile trip (or approximately 380 miles if routed through Hutchinson) was insufficient to withstand a demurrer— and, in any event, the record before us indicates plaintiffs’ evidence was sufficient in this respect to make that question also one for the jury.
The final question, and probably the principal bone of contention in this lawsuit, is the question of whether the notice of claim provision (sec. 4[c] of the shipping contract) precludes plaintiffs from recovery since it is admitted that plaintiffs did not make any written claim for damage to their cattle until January 27, 1947. The shipping contract, including said section 4(c) thereof, became a part of plaintiffs’ evidence when introduced as defendants’ Exhibit 1 upon cross-examination of the plaintiff Kline. It is an instrument composed of six sections with numerous subsections and is entitled “Uniform Livestock Contract.” Upon its face it designates the Anderson Cattle Co. as both shipper and consignee. Other notations show shipping station — Plains, Kan., and route— R. I.-Hutch.-A. T. S. F. The instrument is signed by plaintiffs and by the Rock Island Railroad Co., per its agent, R. 0. Sansing.
Section 4(c) of this contract provides:
“Before the livestock is removed from the possession of the carrier or mingled with other livestock the shipper, owner, consignee or agent thereof shall inform in writing the delivering carrier of any visible or manifest injury to the livestock.”
Preliminary to a consideration of the effect of this contract provision, let us examine three sections of the Kansas statutes. Section 66-304, G. S. 1935, provides:
“That any common carrier receiving property for the transportation from one point in this state to another point in this state shall issue a receipt or bill of lading therefor and such carrier or any other common carrier to which said property may be delivered or over whose line or lines such property may pass shall be liable to the owner of such property for any loss, damage or injury caused by any one or more of said carriers, and no contract, rule or regulation shall exempt any of such common carriers from the liability hereby imposed: Promded, That nothing in this section shall deprive any owner of such property or any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law. That the common carrier which shall pay such loss, damage or injury shall be entitled to recover from the common carrier on whose line or lines the loss, damage or injury shall have been sustained the amount of such loss, damage or injury, as it may be required to pay to the owner of such property, as may be evidenced by any receipt, judgment or transcript thereof.”
Section 66-317, G. S. 1935 provides:
“That all persons, firms or corporations operating railroads as common carriers shall transport all livestock received by them for transportation within this state without delay, and shall transport the same at a rate of speed not less than an average of fifteen miles an hour for the entire distance over which said shipment is transported by rail within this state, unless prevented by unavoidable accidents: Provided, The time consumed for loading, by stops for watering and feeding occasioned by the requirements of law, or the order of the shipper, shall not be considered a part of the time in which shipments are required to be made.”
Section 66-319, G. S. 1935 provides:
“Any provision in a contract of shipment with any railroad company, or express company, or other common carrier, providing in substance as a “condition precedent to a recovery for loss or damage for any cause, including delays in transit, that notice in writing be given such railroad company, express company or other common carrier, and which provision fixes the time at which said notice shall be given within a period of less than twenty (20) days after such claim for loss or damage shall arise, shall be unlawful and void.”
It should be noted that the latter section was enacted in 1913 and became effective upon publication of the statute book, April 30, 1913. Our careful search discovers no similar earlier enactment, and counsel have cited none.
Before discussing the cases heretofore decided by this court, it should be made clear that such of those cases as involve interstate shipments are not in point with the instant case for the reason that state laws regulating rail transportation are superseded by federal law insofar as interstate commerce is concerned. In Mo., Kans. & Tex. Ry. v. Harriman, 227 U. S. 657, 672, 57 L. Ed. 690, 33 S. Ct. 397, the rule is stated thus:
“The liability sought to be enforced is the ‘liability’ of an interstate carrier for loss or damage under an interstate contract of shipment declared by the Carmack Amendment of the Hepburn Act of June 29, 1906. The validity of any stipulation in such a contract which involves the construction of the statute, and the validity of a limitation upon the liability thereby imposed is a Federal question to be determined under the general common law, and, as such, is withdrawn from the field of state law or legislation. Adams Express Co. v. Croninger, 226 U. S. 491; Michigan Central Railroad v. Vreeland, ante, p. 59.”
And in Georgia, Fla. & Ala. Ry. v. Blish. Co., 241 U. S. 190, 60 L. Ed. 948, 36 S. Ct. 541, it was held that the question as to a proper construction of a shipping contract for an interstate shipment issued under the Carmack amendment is a federal question. Also, see 9 Am. Jur. 917:
“The provisions of the Interstate Commerce Act operate to supersede all all state regulations with respect to notice of loss or injury and claim for damages, in so far as interstate traffic is concerned.”
This court has frequently recognized that such state statutes are not applicable to interstate shipments when in conflict with federal statutes. A case very similar to this one now before us was Kirby v. Missouri-K.-T. Rld. Co., 121 Kan. 275, 246 Pac. 1005, and that opinion begins with the statement: “The transportation was interstate, and was governed by federal law.” In Reedy v. Missouri Pac. Rld. Co., 123 Kan. 600, 255 Pac. 683, the shipping contract coiltained a paragraph identical to sec. 4(c) recited above. There the shipment was interstate — from Piqua (Woodson county), Kan., to Kansas City, Mo. In that case the plaintiff relied upon early Kansas cases decided by this court prior to the pertinent federal legislation, and this court, in reversing the trial court’s judgment for plaintiff, said:
“Later federal legislation and rulings of the Interstate Commerce Commission have superseded the rules of law there announced, as applied to interstate shipments. We no longer have the common law action for damages in such shipments.” (p. 602.)
To the same effect is Abell v. Railway Co., 100 Kan. 238, 164 Pac. 269, and other cases. Obviously the reason the foregoing cases, although decided subsequent to 1913, do not refer to section 66-319 is because that section had no applicability to interstate shipments.
Also touching upon the distinction between interstate and intrastate shipping contracts, we call attention to Barber v. Missouri Pac. Rid. Co., 118 Kan. 651, 236 Pac. 859, which involved an interstate shipment of grain from Shook, Kan., to Wichita, Kan., and thence on to Galveston, Tex. Plaintiffs there sued under the federal act and claimed that if they could not recover under the federal act, they should be permitted to recover under section 66-304, G. S. 1935. This court in indicating that statute was applicable to intrastate shipments, said:
“The plaintiffs did not sue to recover under this statute. The bill of particulars (the action was commenced before a justice of the peace) was drawn to recover under the federal act governing transportation in interstate and foreign commerce and was not drawn to recover under section 66-304 of the Revised Statutes of this state. The action was tried by the plaintiffs to recover under the federal statute. There is nothing in the record to indicate that the plaintiffs in any way suggested to the court that they might recover under the statutes of this state.
“There was evidence which tended to prove that the plaintiffs put 70,110 pounds of wheat in the car at Shook. The bill of lading states that there were 66,000 pounds of wheat in the car. A record made in the office of the Strong Trading Company at Wichita showed that the bill of lading weight was 66,000 pounds, and that the railroad weight at Wichita was 67,100 pounds, 1,100 pounds more wheat in the car than was indicated by the bill of lading, but 4,110 pounds (68% bushels) less than what the evidence of the plaintiffs tended to show they put in the car. The contract price was one dollar a bushel. Why should the plaintiffs not recover for the loss of wheat in transportation from Shook to Wichita?
“If the plaintiffs had sued to recover for the loss from Shook to Wichita, their claim would have been $68.50. On a judgment against them on a claim for that amount, they could not have appealed to this court. (R. S. 60-3303.) If the appeal of the plaintiffs is now sustained, it must be on the theory that the evidence to show the loss from Shook to Wichita should have been submitted to the triers of fact. That, if it had been submitted, would have been a claim for $68.50. When the plaintiffs ask to recover the loss from Shook to Wichita, they in effect abandon their claim for loss from Shook to Galveston and substitute a new action therefor in which the amount in controversy is less than $100.” (p. 654.)
Section 66-319, G. S. 1935, since becoming effective on April 30, 1913, has been cited by this court in only one case — and that is Hylton v. Railway Co., 111 Kan. 220, 221-222, 206 Pac. 871. Appellee railroad companies cite and rely upon that case, and except for all lack of reason and authority, it appears to lend weak support to appellees’ contention that section 4(c) of their shipper’s contract is binding upon appellants as a condition precedent to-their action regardless of and notwithstanding section 66-319. The Hylton case requires strict analysis. It involved an intrastate shipment of cattle from Dunlap, Kan., to Kansas City, Kan., and the shipping contract apparently contained a provision similar to 4(c) of the instant contract. That case was decided May 6, 1922, and the court said:
“Section 8587, General Statutes of 1915, [now 66-319, G. S. 1935] that any provision in a contract of shipment providing as a condition precedent t-o recovery for damages for any cause, including delays, that notice of such in writing be given in less than twenty days after such claim shall be unlawful and void, is cited. It is therefore insisted that the provision for notice of shipment [claim for damages] in this case was void, and further that the purpose of requiring notice was accomplished in this case, and that none was needed. This same provision was considered in Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421, and it was held that’ when cat-tie are moved from pens at destination without notice being given, the shipper cannot maintain an action for shrinkage and for delay in delivery of the cars at destination chute for unloading. To the same effect are Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847, and Giles v. Railway Co., 92 Kan. 322, 140 Pac. 875. See, also, Achen v. Railway Co., 103 Kan. 668, 175 Pac. 980, involving an interstate- shipment.” (L. c. 221-222.)
The Hylton case cites four cases, and two of them were apparently decided by this court since section 66-319 became effective. They are: (1) Achen v. Railway Co., 103 Kan. 668, 175 Pac. 980, an interstate 'shipment which involved a shipping contract provision not inconsistent with federal statutes, that no action should be maintained against the shipper arising out of the contract of shipment unless brought within six months after the loss. It involved personal injury to a caretaker on the cattle train, and recovery was denied because the action was brought longer than six months after the loss — which, in addition to being an interstate matter, is quite a different question than the one involved here and obviously not in point with either the instant case or with the Hylton case in which it was cited. And (2) Giles v. Railway Co., 92 Kan. 322, 140 Pac. 875, which makes no mention whatever of section 66-319, although the opinion was filed May 9, 1914. Presumably the damage was quite similar to that in this action, i. e., shrinkage of cattle because of delay in transit. We examined the old briefs filed in the Giles case and according to a statement at page 2 of appellant’s brief (found in bound volume 6, Briefs, 92 Kan., No. 18,742) the loss and damage occurred on December 7-8, 1910. That was some 2% years prior to the effective date of section 66-319. The opinion is based upon the existence of the contract ■ provision being a condition precedent, and it mentions no statute prohibiting such a provision obviously for the reason that no such statute existed in December, 1910.
The other two cases relied upon in the Hylton case for its apparent holding that section 66-319 was meaningless, are Hayes v. Railway Co., 84 Kan. 1, 113 Pac. 421, and Ray v. Railway Co., 90 Kan. 244, 133 Pac. 847, both of which were decided by this court long before section 66-319 was enacted — and therefore neither of these two cases can possibly be authority for such a holding.
It is true the Hylton case involved an alleged loss or damage sustained some five years after the enactment of section 66-319, and the shipping contract there was similar to section 4(c) which is before us for consideration in the instant case. We can, however, find no reason or logic for the ruling there that section 66-319 is wholly ineffective. As has been pointed out, the four cases cited in support of that ruling actually do not support it to any degree whatsoever. The Hylton case does not suggest that section 66-319 (there cited as G. S. 1935, § 8587) is unconstitutional or void for any reason, and indeed we can conceive of no reason why it is not-a valid statute. The state legislature has power to enact such a law for the regulation of intrastate shipments. When legislative enactments are clear and definite and need no judicial interpretation, the courts have no alternative but to follow them. (American Glycerin Co. v. Freeburne, 157 Kan. 22, 25, 138 P. 2d 468; In re Estate of Duel, 161 Kan. 593, 595, 171 P. 2d 271.)
Section 66-319, G. S. 1935, means exactly what its clear language suggests, and insofar as the decision in Hylton v. Railway Co., supra, is in conflict with that statute, it is overruled. Section 4(c)— recited above — of the uniform shipping contract does not within its own terms affirmatively state that it is a “condition precedent” to the filing of an action, but this court has held an identical provision to be so. (Reedy v. Missouri Pac. Rld. Co., supra; Hylton v. Railway Co., supra, p. 220.) Being a “condition precedent” to a recovery for such loss or damage, it is unlawful and void as a part of the shipping contract by the language of section 66-319, G. S. 1935.
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The opinion of the court was delivered by
Harvey, C. J.:
This was an action for damages for personal injuries alleged to have resulted from the negligence of the defendants. In the amended petition plaintiff’s residence is stated and it is alleged that Frank A. Thompson, as trustee of the St.Louis-San Francisco Railway Company, operates a railroad as a common carrier within the state of Kansas; that the National Mutual Casualty Company is an insurance corporation organized under the laws of Oklahoma and authorized to do business in Kansas, and that the defendant, Boyd Messer, is an individual doing business as the Boyd Messer Transfer of Fulton, Kan., and as a part of his business owns and operates a fleet of transport trucks hauling gasoline and other products over the highways of this state pursuant to a permit issued according to law by the state corporation commission; that on April 23, 1947, plaintiff boarded a train, known as the Florida Special, of the defendant railway company to travel to Kansas City, and while plaintiff was riding upon the train as a passenger for hire and the train was being operated by the defendant railway company through the town of Fulton, Kan., the train was caused to collide with a gasoline transport truck then and there being operated on the highway by the defendant Messer, his agents, servants or employees, and pursuant to his permit; that the collision was caused or contributed to by the failure of the railway company, its agents, servants or employees to exercise the highest degree of care for the protection of its passengers, including plaintiff, in the following respects: That the train was caused to be operated through the town of Fulton at a high and dangerous rate of speed, to wit, about seventy miles per hour, without signal prior to the approach to the highway crossing within Fulton and was caused to suddenly stop, all without the exercise of the highest degree of care for the protection of passengers who were riding upon the train, and that by the exercise of the highest degree of care the collision and sudden stop could have been avoided; that the collision was caused or contributed to by the negligence or careless operation of the transport truck then and there operated by the defendant Messer by and through his agents, servants and employees, in the following respects: (a) That the transport was operated over and across the railway crossing at the time when the Florida Special was approaching so closely thereto as to constitute an immediate hazard; (6) that the operator of the transport truck failed to stop immediately before entering upon the railway crossing; and (c) failed to look, or listen, or observe the approach of the Florida Special, or yield the right of way to it.
It was further alleged that pursuant to the laws of this state the National Mutual Casualty Company had issued and filed with the state corporation commission its public liability policy, and that by the terms and conditions of the policy and the provisions of our statute this defendant thereby agreed to be and became liable for the negligent or careless operation of the transport truck previously described. Appropriate exhibits were attached to the petition.
It was further alleged that as a result of the collision plaintiff was thrown violently from her berth and sustained injuries in a stated amount, for which judgment was sought.
The defendant, National Mutual Casualty Company, filed a demurrer to the petition upon the ground that several causes of action were improperly joined, in that the cause of action against the railway company and its trustee rests upon common-law liability of alleged negligence of a carrier to a passenger, and negligence in the operation of the train at an excessive speed and in suddenly stopping the train, while the alleged cause of action against the demurring defendant rests in contract and statutory liability based upon contract as the insurance carrier of the defendant Messer and the law pleaded and the policy pleaded in the petition. This demurrer was overruled and the insurance carrier appealed.
Counsel for appellant concede that the trustee of the railway company and Messer may properly be joined as defendants in plaintiff’s action for damages. When a passenger on a railroad train is injured by a collision of the train and a vehicle at a railroad crossing, and it is alleged that each of the parties caused or contributed to the injury it is well settled that the injured person may sue both as joint tort-feasors notwithstanding the fact of the higher degree of care required of the railroad company.
In 45 C. J. 1055 the rule is thus stated:
“Where the injury is the result of the concurring negligence of two or more parties, plaintiff at his election may sue such parties either severally or jointly. [Citing Wholesale Grocery Co. v. Kansas City, et al., 115 Kan. 589, 224 Pac. 47, and other cases.] All may be sued jointly notwithstanding different degrees of care may be owed by the different defendants. . . .”
Citing Sternfels v. Metropolitan St. Ry. Co., 77 N. Y. S. 309; Aff. 174 N. Y. 512, 66 N. E. 1117; Gooch v. Georgia Marble Company, 151 Ga. 462, 107 S. E. 47; Matthews v. D., L. & W. R. R. Co., 56 N. J. L. 34, 27 Atl. 919; Railway Co. v. Durand, 65 Kan. 380, 69 Pac. 856; Morgan v. Hines, 260 F. 585. Also, see Arnst v. Estes and Harper, 136 Me. 272, 8 Atl. 2d 201.
In 39 Am. Jur. 911, it is said:
“Tort-feasors may be joined as parties defendant notwithstanding there may exist a difference in the degree of liability or the quantum of evidence necessary to establish such liability.” (Citing Carlton v. Boudar, 118 Va. 251, 88 S. E. 174; 4 A. L. R. 1480.)
Counsel for appellant concede that the defendant Messer and his insurer might be joined in a suit brought by the plaintiff.
Our statute (G. S. 1935, 66-1,128) provides that no certificate or license shall be issued by the public service commission to any public or contract motor carrier of property or. passengers, or private motor carrier, until and after an applicant therefor shall have filed with and the same has been appoved by the public service commission, a liability insurance policy, “which liability insurance shall bind the obligors thereunder to pay compensation for injuries to persons and loss of or damage to property resulting from the negligent operation of such carrier.”
In Dunn v. Jones, 143 Kan. 218, 53 P. 2d 918, it was held that such policy when given indemnifies against “the condition of being liable,” and that such obligation “rests on the insurer from the time of accident resulting in injury” and “the obligation may be enforced by action brought directly against the insurer by the person sustaining injury.”
In Twichell v. Hetzel, 145 Kan. 139, 64 P. 2d 557, it was held:
“. . . An action by a party to recover for injuries to his person or property caused by the negligent operation of a public motor carrier may be brought directly against both the negligent motor carrier and the statutory surety. Such an action is one in tort and its necessary allegations do not constitute a misjoinder of causes of action, nor are they out of harmony with the provisions of R. S. 60-601.” (Syl.)
In Henderson v. National Mutual Cas. Co., 164 Kan. 109, 111, 118, 187 P. 2d 508, it was held that when the insured stated the cause of action against a licensed trucker, who was insured, he also stated a cause of action against the insurer.
Our other decisions are to the same effect.
(State Highway Comm. v. American Mut. Liability Ins. Co., 146 Kan. 187, 70 P. 2d 20; Marshall v. Home Mutual Ins. Co., 154 Kan. 488, 119 P. 2d 529; Schoonover v. Clark, 155 Kan. 835, 130 P. 2d 619; Hudson v. Ketchum, 156 Kan. 332, 133 P. 2d 171; Lang v. Underwriters at Lloyd’s, 157 Kan. 314, 139 P. 2d 414; Waugh v. Kansas City Public Service Co., 157 Kan. 690, 143 P. 2d 788; Graves v. National Mutual Cas. Co., 164 Kan. 267, 188 P. 2d 945.)
The federal cases dealing with the question are in harmony with our decisions:
Commercial Standard Ins. Co. v. Foster, 31 F. Supp. 873; Boyles v. Farmers Mut. Hail Ins. Co., 78 F. Supp. 706; Travelers. Mut. Casualty Co. v. Herman, 116 F. 2d 151; Flowers v. Fidelity & Casualty Co., 156 F. 2d 586.
The rule deducible from the above authorities is that the liability assumed by the insurer is neither a contract liability nor a statutory liability. It is a tort liability — the liability in tort which the insured has “from the negligent operation” of his business under the permit. The fact that this tort liability is determined by the statute and by the insurance policy does not keep it from being a tort liability.
If the petition states a cause of action in tort against the permit holder and alleges the filing and approval of the liability policy it states a cause of action against the insurer. This is the basis for the holdings of the court that one who sustains injury in his person or property by the negligent operation under the permit of the permit holder may sue both the permit holder and the insurer, or either one of them, and the action is in tort, not in contract.
Earlier herein the authorities were set out establishing the rule, conceded by appellant, that a passenger on the railway who sustains injury by the negligence of the railway company in a collision with a vehicle at a railway crossing may join the railway company and the alleged negligent vehicle operator to recover damages resulting from their combined negligence. Such an action is a common-law action for damages for tort against joint tort-feasors. We think it necessarily follows that plaintiff may also join any other party who is liable for the tort, such as the insurer of the operator of the vehicle involved who has answered the tort liability of one of the other parties.
We have examined the authorities cited by appellant and find they do not require or authorize a different conclusion. 21 C. J. 408, treats of multifariousness in a bill in equity.
In Crummer v. Wilson, 119 Kan. 68, 237 Pac. 1035, plaintiff sued an official and his bondsmen, asserting a liability against the official for acts done by virtue of his office, and also for acts done by him individually, for which the officer’s surety had no liability.
In Rakestraw v. State Highway Comm., 143 Kan. 87, 53 P. 2d 482, plaintiff sued the state highway commission, which had only a statutory liability, if any, and also a firm of contractors, whose liability, if any, was clearly in tort.
In Hoye v. Raymond, 25 Kan. 665, plaintiff sued a constable and the sureties on his bond, the liability of the sureties being only in contract, and a deputy constable, whose liability was only in tort.
In Osborne v. Kington, 148 Kan. 314, 80 P. 2d 1063, the action was filed against an executor and others to set aside a will, and also to set aside a deed previously executed by the testator, a matter with which the executor had nothing to do.
In Burks v. Aldridge, 154 Kan. 731, 121 P. 2d 276, plaintiff brought the action for personal injuries founded upon the alleged negligence of a contractor engaged in constructing a highway under a contract with the state highway commission, and made the contractor’s insurer a party-defendant. The insurer’s contract was analyzed and the court held that the insurer had no direct liability prior to judgment and for that reason distinguished the case from Dunn v. Jones, supra.
In Hudson v. Ketchum, 156 Kan. 332, 133 P. 2d 171, plaintiff sued an insured operator of a licensed transport truck for injuries alleged to have been sustained by the negligent operation of the truck. The insurer had been placed in receivership in an action by the state on the relation of the attorney general and plaintiff had filed with the receiver a claim for the full amount of the liability of the insurer, which claim had been allowed in part and dividends had been declared by the receiver, which plaintiff had declined to accept. It was contended that the filing of a claim with the receiver barred plaintiff’s action against the operator of the truck. The court held plaintiff was not barred for that reason, and in the opinion used some language at variance with the decision of this court in numerous former cases hereinbefore cited. This language was unfortunate rather than controlling, and is disapproved, since no attempt was made to reexamine the matter fundamentally, or to overrule or modify cases hereinbefore cited establishing the rule and the liability assumed by the insurer is the tort liability of the insured.
Counsel for appellant in their brief inquire how the judgment would be apportioned among defendants in the event of a verdict for plaintiff. The question is premature and we shall do no more than to say, normally, the jury has no authority to apportion a verdict against joint tort-feasors. (Hall v. Kansas City, 112 Kan. 752, 212 Pac. 875.) If the insurer’s maximum liability is $5,000, as stated by counsel for appellant, no more could be collected from it.
From the above it follows that the judgment of the trial court overruling appellant’s demurrer should be affirmed. It is so ordered.
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The opinion of the court was delivered by
Smith, J.:
This is a proceeding commenced in the probate court for admission of a will to probate. Seven heirs at law of testatrix filed an objection on the ground that decedent at the time of the alleged execution of the will was not of sound mind and memory and on the further ground that the will had been obtained by undue influence practiced by the four devisees named in the will. Another heir filed a cross petition, in which she alleged that the deceased was in dire circumstances and that deceased told cross petitioner that if she would take her into her home and look after her she would give all her property to cross petitioner; that she agreed to the proposal and carried out her part of the contract to the letter and the deceased made a will giving her all her property and the will was given to a bank for safe keeping. The cross petition alleged that during the last days of 1943 deceased became deranged and mentally incompetent and left the home of cross petitioner, obtained the will from the bank, and cross petitioner was not able to tell what had been done with it. It was alleged that at the time the will was made deceased was capable of making a will and it was made of her own free will but that since she left cross petitioner’s home she had not been of sound mind and was in no respect capable of making a will. The cross petitioner prayed that the will executed in 1941, giving her the property, be established as the last will of deceased and that if that could not be done the contract be enforced.
The probate court heard all these matters and found that the allegations of the petition to probate the will had been proved; that the decedent died testate on September 21, 1946, a resident of Ness county, Kansas, leaving an estate therein; that the instrument bearing the date of January 10, 1944, was duly executed; that at the time of the execution decedent was of sound mind and under no restraint and that the will was valid and genuine; that the will described in the cross petition was revoked and that the alternative relief for enforcement of a contract should be denied. It was also ordered that A. S. Foulks be appointed executor of the will of testa trix since he was named by the testatrix in the will. It was further ordered that deceased died intestate as to certain property, which property would be subject to administration; that it was for the best interest of the estate that Foulks be appointed administrator of the intestate property also.
From this order admitting the will to probate an heir other than any of the seven who had objected to its probation in the first pláce appealed to the district court.
For the purpose of clarity a statement of a general nature will be made.
At the time of the death of testatrix’s husband in 1940 she was seized of two adjacent quarter sections of land in Lane county. Her husband was seized of two quarter sections contiguous to these but in Ness county. The Lane county land was very rough. The Ness county land was smooth and good farming land; The couple lived on the Ness county land. Testatrix’s husband died testate and left all his property to his widow, testatrix here. By this she took the two Ness county quarters from her husband, and already owned the two Lane county quarters. By two different conveyances and under circumstances which will be noted later testatrix conveyed the two Lane county quarters to one Gregg.
The will offered for probate devised the two Ness county quarters to four nieces and nephews of deceased on her husband's side. Some months after the making of this will the testatrix was declared incompetent and a guardian appointed. This guardian sold one of the Ness county quarters and had the money received from the sale on deposit in the bank at the time these proceedings were begun.
At the same time her appeal was taken to the district court Blanche McCray filed a position in the district court entitled “Petition of Blanche McCray To Strike From Inventory.” She alleged she was the heir of the decedent and further that Foulks, as executor of the estate of decedent, had filed an inventory of the estate and that inventory had included as money in the bank $6,140.69 of personal property; that the only property described in the will was the half section of Ness county land; that the will contained no residuary clause and made no disposition of any other property other than the above described property; that decedent died intestate as to the personal property described and that it should be ordered stricken from the inventory filed by the executor. Plaintiff prayed that the court order the personal property be stricken from the inventory filed by Foulks as executor. This motion was denied. Shortly thereafter the proponents of the will moved to dismiss the appeal from the probate court on the ground that when Blanche McCray filed the motion, to which reference has just been made, she recognized and acquiesced in the validity of the order of the probate court of Ness county, Kansas, and in the fact that Foulks had been named executor of that will. This motion was overruled. At the conclusion of the testimony the court made extensive findings of fact. Following these findings of fact the court made conclusions of law, as follows:
“Conclusions of Law
“On January 10, 1944, or on the date Elda A. Walter made the will in controversy :
“1. She did not have mental capacity: A. To know and understand the
nature, extent and value of her property; B. To comprehend the nature of'the obligations she owed to her relatives.
“2. She was unable to make a disposition of her property with understanding and reason because of an insane delusion that her relatives had not been good to her and that she had received title to the Ness county land from her second husband.”
A motion to set aside certain of these findings of fact and conclusions of law was filed by the proponents of the will. This also included a motion for a new trial on the ground that the decision was contrary to the evidence, judicial improprieties on the part of the court in discussing the case with witnesses outside of court and in receiving evidence from them not adduced from the witness stand and not included in the record; in discussing and arguing the case with witnesses, clerk, court reporter and counsel for objector with court not in session and in absence of counsel for proponents; that the evidence did not justify the conclusions of law.
In response to this motion the trial court filed amended findings of fact, which were about the same in substance as the original findings. Following this the court made a journal entry in which it referred to the amended findings of fact and conclusions of law, ordered that the will be refused probate; that deceased died intestate and that the property described in the instrument should pass under the laws of intestate succession.
The proponents have appealed and their assignments of error are that the court erred in overruling the motion of proponents to dismiss the appeal to Blanche McCray from the order of the probate court rendered on the 15th of February, 1947, admitting the will to probate, in overruling the objection of proponents to questions asked certain witnesses and also overruling the motion of proponents to strike the same testimony and in overruling proponents’ demurrer to objector’s evidence, in discussing the case with witnesses outside of court and receiving evidence from them not adduced from the witness stand; that the findings of fact were not supported by and were contrary to the evidence; that the facts did not justify the conclusions of law; in denying probate of the will and in overruling proponents’ motion for a new trial.
Proponents first argue their motion to dismiss the appeal should have been sustained on account of appellant’s motion, to which reference has already been made, on the theory that she thereby acquiesced in the judgment of the probate court admitting the will to probate and appointing an executor. They cite many cases where we have held that acquiescence in a judgment precluded appellate review. Those cases are not in point here. The motion of the appellee did not constitute acquiescence. She simply stated that whether the will was good or bad she still was entitled to have her share of cash referred to as an heir. We are not called upon to decide the question of whether or,not her position was correct in that regard because the court overruled her motion, as well as the motion to dismiss, and she did not appeal since the final judgment was in her favor.
We next proceed to a discussion of the merits of this appeal.
One of the specifications of error is that the trial court erred in overruling the demurrer of proponents to the objector’s evidence.
It should be noted that where the will is executed in compliance with the statutory requirements it is presumed to be a valid will. (See In re Estate of Harris, 166 Kan. 368, 201 P. 2d 1062, and cases there cited.) The burden was on the objector to prove lack of testamentary capacity and undue influence, which she alleged. (See In re Estate of Hall, 165 Kan. 465, 195 P. 2d 612; Kunkle v. Urbansky, 153 Kan. 117, 109 P. 2d 71; and Klose v. Collins, 137 Kan. 321, 20 P. 2d 494.)
Another rule to be observed in deciding whether a will should be admitted to probate is that the time when the will was made is the time of primary importance in judging the mental capacity of the testatrix. Evidence of capacity or incapacity before or after-wards merely aids in the investigation of testamentary capacity at the time the will was executed. (See Wisner v. Chandler, 95 Kan. 36, 147 Pac. 849, and cases there cited.)
Another rule it is well to bear in mind is that stated by us in Wisner v. Chandler, supra, as follows:
“It is a rule of law because it is a rule of common experience that a creation of the mind may be of such a character and may occur under such circumstances that it proves the sanity of the creative act.”
In that opinion we quoted Cartwright v. Cartwright, 1 Eccl. Rep. 47. See, also, Spratt v. Spratt, 76 Mich. 384, 43 N. W. 627.
The turning point of this case is the lack of evidence of the objector. However, at this point we shall state briefly the evidence of proponents as to the making of the will.
The testatrix made arrangement to be taken to Ness City the day before. She did not say why. When she and her driver arrived they went to the office of a reputable lawyer there and the driver left. The evidence is undisputed that testatrix advised her lawyer that she wanted a will drawn and a deed prepared. They talked for an hour or two over a broad range of subjects. She told the scrivener she had a brother in Wichita whom she had not seen in thirty years. She stated to him she had been living in Argonia but that she had found out her relatives down there wanted her to support them rather than to help her. She spoke of two persons who had been good to her. One had been farming her land and a Mr. Gregg had taken her different places and brought food out to her on the farm. She said that her husband’s people had been better to her than her own relatives and she had acquired title to the Ness county land through her husband. She said she was going to make a will leaving the land that had belonged to her husband to his people and she felt that with the two quarters she could do as she pleased. She had brought with her the legal description of the land she wished to devise and the land she wished to convey to Gregg. It was written on a piece of paper. The wife of the scrivener had prepared an income tax return for testatrix previously and testatrix asked her to prepare her income tax return that day. She provided all the necessary information, including tax receipts. She discussed the value of her property, stated that she had one quarter of Lane county land she had deeded to Gregg and she wanted to deed him the other quarter because one quarter by itself was of little value to anyone. It will be remembered that the two Lane county quarters were rough land and useful only as pasture. So there is ample foundation for her making such a remark about that quarter not being of much value in itself. She told the scrivener she had little property other than the land and she was content to have that pass by inheritance. At that time she inquired about the effect the will that was being drawn had on a previous will and was advised it would revoke the former one. She selected her own witnesses. The scrivener suggested to her that it might not be wise to convey the other quarter to Gregg and she said if she couldn’t deed it to him she would leave it to him in her will. The scrivener testified in answer to a direct question—
“Q. In talking to Mrs. Walter on that occasion, was there anything about her conversation, her appearance, or her acts which struck you as being out of the ordinary? A. Well, I would say out of the ordinary for younger people, but not out of the ordinary for a person of her age.”
The scrivener testified she seemed alert, answered the scrivener’s questions readily and was quite positive about what she wanted to do. She knew the name of the relatives at Argonia with whom she had lived and whose home she had left to come back to Ness City. The scrivener testified that in his opinion she understood the nature and extent of her property and she was able to understand and did understand to whom she wanted her property to go.
This evidence was corroborated by the scrivener’s wife who prepared testatrix’s income tax return at the same time.
All this occurred on the morning of January 10, 1944. The whole transaction is that of a person who knew what she had and what she wanted to do with it. In the words of the opinion in Wisner v. Chandler, supra, the entire transaction of having the will prepared constituted the creation of a mind under circumstances that really prove the sanity of the act.
There is a singular lack of medical testimony as to the mental condition of the testatrix.
There was, however, for the proponents the testimony of a physician who rented testatrix a small house in February, 1944, about a month after the will was drawn. He testified he told her to live in the house for two or three months and if she liked it she could buy it and if she did not like it she could pay rent. He was quite positive in his opinion she understood the transaction at the time the deal was made. There is some question that she did not understand because she did not go through with the deal to buy the house. Under interrogation of the court, however, the doctor was positive in his opinion she understood the deal when the transaction was made.
It must be borne in mind that for a will to be good the testator must know what he has, he must know the object of his affections and to whom he wishes his property to go and must understand the business in which he is engaged. The burden was upon the objector to prove testatrix did not possess these mental attributes on the morning of January 10, 1944. This takes us to an examination of the evidence offered by the objector. At the outset, it should be stated that frequent references will be made to Utica. That was the town where the Walters traded. Argonia is the town in Sumner county where she lived for a while.
We do not find it necessary to set out in detail the testimony offered by the objector. Suffice it to state the witnesses were with one exception, which will be noted later, laymen, neighbors and friends and one or two relatives. They testified about occasions when testatrix had apparently a mistaken notion that someone was running sheep on her land or pulling up her fence or running a still on one of her farms. She had a misunderstanding with a grandniece with whom she lived in Argonia; she made a practice of carrying a bundle, sometimes two bundles instead of a suitcase; in these bundles she carried odd objects, such as her dead husband’s false teeth, old canceled checks and other odds and ends; she was not clean at times; occasionally wore overshoes to town with no shoes underneath them; she grieved over the loss of her husband, with whom she had apparently been happy; her life had been one of hard work, thrift and frugality on the Ness county farm. The situation is peculiar in that she seemed to have fallen out with her brother and sisters and nieces and nephews and her husband seemed to have fallen out with his. Whether there is any reason for this or not is not a proper question here. She did do some things that probably many people in Ness county would not have done. However, the record is devoid of any evidence that when she went to the scrivener on the morning of January 10 she did not know what she had and indeed it is overwhelming that she did know what she had and there is no evidence at all that she did not remember to whom she wanted it to go. As to whether or not she knew the natural objects of her bounty, there is no reason in the record why the nieces and nephews on her side were the natural objects any more than the nieces and nephews on her husband’s side.
There was one medical witness for the objector. He testified that on August 14, 1944, he was a member of a commission that found testatrix to be a schizophrenia and that she was incapable of performing the mental functions of making papers. The physician testified:
“Q. Based on what you found that day, do you now have an opinion as to how long that condition had existed at that time? A. Medically speaking, from history, it could have been any time from -a year to a year and a half, for an indefinite period of time until demise.”
It will be noted that that answer was not responsive to the question. He asked whether he had an opinion as to how long that condition had existed at that time. He answered:
“From history it could have been any time from a year to a year and a half, for an indefinite period of time until demise.”
This did not constitute any evidence as to the condition of the testatrix on the preceding January.
It will be noted that several lay witnesses testified that in their opinion testatrix lacked testamentary capacity. Such testimony is competent where it has some reasonable basis. When a witness testifies that in his opinion testatrix lacked testamentary capacity, the inquiry is made upon what he bases that opinion. Then, in order for such an opinion to rise to the dignity of substantial evidence it must appear the opinion is based upon facts that sustain it. We considered this question in In re Estate of Harris, supra. There, four witnesses testified as to testator’s lack of testamentary capacity. We said:
“Under well-recognized decisions of this court it must appear from the record such conclusions are based upon facts which sustain them, otherwise they do not rise to the dignity of ‘substantial evidence’ or come within the meaning of that phrase as used in the rule to which we have just referred.”
The trial court in that case ordered the will be not probated. We reversed it and held there was no substantial evidence to sustain the finding of the trial court of no testamentary capacity. We cited Klose v. Collins, 137 Kan. 321, 20 P. 2d 494. That was an action to set aside a will brought by nieces and nephews of testatrix. The devisees were two banker friends of testatrix not related to her. Defendants’ demurrer to the plaintiffs’ evidence was sustained and the plaintiffs appealed. There, as here, a number of lay witnesses testified that testatrix was not mentally capable of making a will. These witnesses based their conclusions upon her weak physical and mental condition; that she was very childish, very forgetful, had a very poor memory, that she repeated statements, and did not transact any business for herself but had her banker take care of it; that she said she would have to ask her banker if she could buy it. We said:
“We conclude that the showing of mental incapacity was not sufficient under all the facts and circumstances to require the setting aside of the will on that account.”
In that opinion we referred to Barnhill v. Miller, 114 Kan. 73, 217 Pac. 274. There several witnesses testified that in their opinion testator lacked mental capacity. These opinions were based on the fact that testator did not know; his failure to recognize people; that he answered “uh-huh, uh-huh” when asked questions; there nearly always was somebody with him when he was on the street; sometimes he would be friendly, sometimes not; he left out phrases in his conversation; was a great sympathizer with Germany; he gave to each of his children $2,000 and the residue to a Catholic Society known as “The Propagation of the Faith.” We said:
“In order to possess the mental capacity to make a valid will the law, based upon the experiences of mankind, does not require the testator to possess the ability to carry on complicated business matters. It is sufficient if he has mental capacity to know what property he has, and is able to make a disposition of it with understanding; that he knows the persons and objects of his bounty, and their condition and relation to him, and that he is able to dictate the terms of the will.” (p. 75.)
An opinion of rare persuasiveness is De Crow v. Harkness, 100 Kan. 144, 163 Pac. 630. That was an action to set aside a will. The will was made January 17 and testator died January 28. Two doctors testified that for several days before the will was made the testator lacked testamentary capacity. Besides that, there was other evidence of one witness that sometime before he had looked troubled in mind. His daughter testified that when he saw her the day after he had made his will he threw up his hands and went into a fit, went to throwing up and couldn’t talk for at least a half hour; he accused one doctor of treating him like a brute and another doctor of giving him poison. Another witness testified that when he saw him his actions were not in all respects those of a man of ordinary intelligence ; he was rational sometimes and not right at others. Another witness testified that he seemed out of his mind at times and at times not. There was other evidence to the effect that he did have testamentary capacity. The jury found for the defendants and the will was set aside. On appeal we reversed largely on account of an in struction where the court told the jury that a person to be incapacitated to make a will need not be insane or incapable of understanding the ordinary business transactions. The testator may be capable of transacting ordinary business affairs of life and insane on other matters, but if the will was influenced and the direct offspring of an unfounded and insane delusion it cannot be sustained.
In this case the court stated:
“Although you may believe from the evidence that James W. Harkness was capable of transacting the ordinary business affairs of life, at or about the time he executed said will, yet if you also believe that at the time of the making of said will in controversy he was influenced in making said will and that the provisions in said will, cutting off the children by his first wife substantially from any of his property, was the offspring of an unfounded and insane delusion without the slightest pretense or color of truth, that his children of his first wife were unkind to him or mistreated him, then the will cannot stand and your verdict will be for the plaintiff.” (p. 152.)
The court further stated:
“The Court instructs the jury in deciding whether or not James W. Harkness was of sound mind at the time of making the will in controversy you have a right to take into consideration the reasonableness or unreasonableness of the manner in which he disposed of his property, as a circumstance to be considered with all the other circumstances in the case; and if you believe that a man of sound mind would not have been likely to have discriminated against the children of his first wife in favor of a child of his then present wife, then you have a right to consider this circumstance in connection with all the other circumstances in the case in determining whether or not James W. Harkness had the mental capacity to execute the will in question.” (p. 154.)
We said, in speaking of the will:
“It cannot escape notice that this will bears facial indications of having been dictated by one in full possession of his faculties.” (p. 151.)
Also note:
“While the courts of other states and numerous textwriters seem to accord much more leeway to jurors and much less power of disposition to owners of property this court is on record for giving proper respect to the desires of a qualified testator. It is impossible to read the abstracts without the conviction that the principle to which this court is committed was departed from by instruction No. 2 and that the danger line was approached if not reached in instruction No. 8. The evidence that at the time the will was executed the testator was possessed of sufficient testamentary capacity is convincing if not overwhelming. In this condition of affairs courts have no right to disregard the will and wishes so clearly drawn and expressed, and for the reasons indicated the judgment is reversed, and the cause remanded for further proceedings in accordance therewith.” (p. 156.)
See, also, Holmes v. Campbell College, 87 Kan. 597, 125 Pac. 25.
Attention will now be given to specific findings by the trial court; in the fourth paragraph of the 9th finding the court stated:
“In November, 1943, she returned to Ness county obsessed with the idea that relatives had never done anything for her and they were trying to get her property away from her. These ideas were contrary to the evidence of the case. Her friends tried to convince her that she was wrong. These obsessions seemed to increase.”
The trial judge apparently had the idea there was more of an obligation on the part of the testatrix toward one group of nieces and nephews than toward another. Testatrix had some twenty-odd nieces and nephews on her side of the family, and the four on her husband’s side whom she named in the will as devisees, the proponents of this will. The court states in its findings that testatrix had an obsession that her relatives had never done anything for her and were trying to get her property away from her and that this obsession was contrary to the evidence in the case. In order for an obsession to invalidate a will it must be established that it was really an insane delusion. The burden was not on the proponents of the will to prove there was a foundation for this feeling testatrix had about her relatives. The burden was on the objector to prove that there was no foundation for it. The court states the obsession was contrary to the evidence. That is not the point. The evidence of the objector in order to invalidate the will must show there was no foundation for it. As a matter of fact, there was testimony that testatrix had been unhappy when she was living in Argonia and her niece’s daughter was staying with her. Something happened to upset her. What it was we do not know. We do not know the feeling to be without foundation, however.
In the sixth paragraph of finding No. 9 the court after stating the fact about testatrix calling on the scrivener to write her a will stated:
“On that day she was laboring under the insane delusion that her relatives had not been good to her and were trying to get her property so she stated to A. S. Foulks that Mr. Walter’s relatives had been better to her than her relatives, which is contrary to the evidence. She also stated that the land was Mr. Walter’s, while the evidence shows that she purchased one quarter before her marriage to Grant Walter and the other Ness County Quarter was acquired about seven years after her second marriage and the grantees in the deed were Elda A. Walter and Grant Walter.”
This really when considered with the trial court’s second conclusion of law appears to be the reason why the trial court refused the probation of the will. The court found her idea that the rela tives on her side had not been good to her and were trying to get her property was an insane delusion. There is no evidence whatever that this feeling was an insane delusion. Here again it must be observed it was not the duty of the proponents of the will to show that there was a reasonable basis for her thought that her relatives had not been good to her and were trying to get her property. The burden was on the objector to prove there was no foundation whatever for the testator to have that idea. As we stated in DeCrow v. Harkness, supra, with reference to Mr. Harkness’ feeling that his children had not been treating him as a parent:
“A careful examination of the entire record discloses some reason for Mr. Harkness’ feeling that his children had not treated him as a parent deserves or as he might expect from his own flesh and blood who lived within reach and failed to call on him in time of sickness. Also- that there had been some discussion and irritation over his failure to divide up the property when his first wife died.”
We also quoted from the case of Wisner v. Chandler, supra, as follows:
“It was not a figment of the testator’s imagination. It was not a delusion springing from a mind disordered by disease. It had a solid basis in reality. However, much it may be regretted that the testator could not forgive, as Mrs. Wisner probably did, his resentment was human and natural, and if he magnified his injury and illogieally and unjustly carried his resulting prejudice too far, so that it extended to the family over which Charles presided, he was not possessed of an insane delusion within the purview of any well-considered decision of which this court is aware.” (p. 152.)
There is no doubt the testatrix told the scrivener that her nieces and nephews on her side had not been very good to her. As a matter of fact, from this record the testatrix might have been justified in feeling that they had not been as nice to her as they should. We have already referred to the trouble that happened with the niece down at Argonia. At any rate, there is no evidence whatever that there was an insane delusion. (See Wood v. Wood, 168 Okla. 198, 32 P. 2d 715; Snell v. Weldon, 243 Ill. 496, 90 N. E. 1061; Wisner v. Chandler, supra; Bean v. Bean, 144 Mich. 599, 108 N. W. 369; and Akins v. Akins, 109 Kan. 453, 199 Pac. 922.)
There we said, in Akins v. Akins:
“The evidence tended almost conclusively to show that the plaintiff had not in any way wronged his father in the management of the business or in the sale of it, although in the sale there was that which would excite the suspicions of many men. Grant that John Akins was mistaken, a mistake is not an insane delusion. A mistaken belief entertained by one that he has been, wronged by another is a very common frailty of humanity, but such belief is not necessarily an insane delusion.”
See, also, Firestone v. Atkinson, 216 Iowa 151, 218 N. W. 293, and In re Kendrick’s Estate, 130 Cal. 360, 62 Pac. 605.
The trial court by its findings seems to have placed great emphasis upon the fact that testatrix believed she had received title to the Ness county land from her second husband. The court in its conclusions of law refers to this as an insane delusion. The record shows there was sufficient foundation for this belief to prevent it from being an insane delusion, that is, she did receive the Ness county land on account of her husband’s will and at the time of his death it was in his name. A more astute person might have seen that sometime or another the Ness county land had been in her name but since she did not receive it through her husband’s will it cannot be said her belief she got it from him was an insane delusion.
It follows the proponent’s demurrer to the objector’s evidence should have been sustained.
The judgment of the trial court is reversed, with directions to render judgment in accordance with this opinion.
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The opinion of the court was delivered by
Wedell, J.:
This case involves the construction of a will which, omitting the introductory paragraph and attestation clause, reads:
“Item One. It is my will that all my last debts be paid, including funeral and burial expenses.
“Item Two. Any money left at Penn Mutual Insurance Company to father and mother.
“Item Three. Personal property left at various places around Iola, Kansas to Mr. and Mrs. T. 0. Canatsey, to be used or sold as they see fit.
“Item Four. Bonds and cash at 9th National Bank in Philadelphia, Pennsylvania, (if any at my death) along with jewelry, sterling silver and all other personal property in Philadelphia, Pennsylvania, to Mrs. Helene Stirling (Mrs. Heber Stirling.)
“Item Five. I hereby designate and appoint Mrs. Helene Stirling (Mrs. Heber Stirling) Executrix of this my last will and testament, and it is my last will that she act as such executrix without bond.
“In Testimony Whereof, I have hereunto subscribed my name at Iola, Kansas.
“Ella M. Chevalier.”
The beneficiaries of the will are not related to the testatrix. The Canatseys, the prevailing parties, live in Iola, Allen county, where the action was tried. Helene Stirling resides in Philadelphia, Pa. The testatrix appointed Helene to serve as executrix, without bond. The childhood home of the testatrix was also in Philadelphia. The stepmother of the testatrix was the aunt of the beneficiary, Helene Stirling. The stepmother had taken care of Helene, her three brothers and of the testatrix as one family for approximately a year. The testatrix married in 1907 and she and her husband moved to New York state. They lived in various eastern places for three or four years and then moved to Iola where they resided until the death of the testatrix’ husband in 1936. They had no living children.
After her husband’s death the testatrix sold the home in Iola and all the furniture and household equipment except a few household items which she left with some of her Iola friends, including the Canatseys. The property left with friends probably had some sentimental value. The inventory reflects the appraised value of the items left with friends around Iola did not exceed $20. It appears the items left at the Canatseys were given to them by the testatrix but Mrs. Canatsey did not use them. She advised the testatrix she might get them if she desired to do so at any future date.
Having broken up her home in Iola the testatrix left for Philadelphia and stayed in the home of the beneficiary, Helene Stirling. The testatrix had a checking account in the Ninth National Bank of Philadelphia and also a lockbox. She made Helene a co-owner of the box but Helene never exercised the privilege of co-ownership. Helene knew the testatrix probably had $700 or $800 in the bank. She also knew the testatrix had some bonds in the safety deposit box but she did not know whether she had other bonds than United States government bonds. Helene did not know how much the testatrix had in bonds or the denominations thereof. The testatrix kept the silverware in her trunk. In the event of her death she desired to have Helene take full charge of affairs and send her body to Iola for burial.
In 1938 the testatrix returned to Iola to make settlement for the sale of her home. While there she executed the instant will on May 25,1938. During that visit to Iola she stayed with the Canatseys and other friends. Before she returned to Philadelphia in 1938 she shipped her silverware back to Philadelphia. Mrs. Canatsey testified that insofar as she knew it was still there. Helene could not testify positively concerning the amount of cash the testatrix had in the bank in 1944 but she thought there might have been $700 or $800. The testatrix visited in Iola during a part of some of the summers between 1938 and 1944. She stopped rental on the lockbox when she went to Iola in 1944. She did not take all her clothing with her but did take her jewelry, sterling silver, bonds and cash. She left a deposit of $5 in her checking account so 'that it would not be necessary to reopen that account on her return. The evidence is in conflict as to whether she intended to return to Philadelphia after 1944. The administrator testified all of the property inventoried was found in Iola at the time of her death. The property inventoried as goods and chattels consisted of jewelry, silverware, household furnishings and personal effects of the value of $456.50; two United States government coupon bonds, principal and interest, $2,055; cash in an Iola bank in the sum of $846.73 and proceeds from insurance policies which the administrator had collected- in the sum of $3,286.33.
Item 2 of the will bequeathed the proceeds of the insurance policies to “father and mother.” The trial court found “mother” meant stepmother. The stepmother had died later than the testatrix of the instant will. Helene Stirling is the administratrix of the estate of the testatrix’ stepmother. The district court ordered the proceeds of the insurance policy delivered to that administratrix and item 2 of the instant will is not in dispute.
The question in dispute is, who is entitled to the remainder of the property in decedent’s estate under items 3 and 4 of the will?
The trial court concluded that since none of the estate was in Philadelphia at decedent’s death all of the estate passed to the Canatseys of Iola under item 3 of the will. Helene Stirling appeals from that judgment and from the order overruling her motion for a new trial.
It would appear the scrivener of this will was probably not a lawyer. Be that as it may, we are required to determine the intent of the testatrix. How did she intend to dispose of her property?
It is often said a will speaks as of, or takes effect only upon, the death of the testator. Properly applied that is a correct statement of the law. However, for the purpose of determining the testatrix’ intent the will must be considered as of the time it was made and with reference to the circumstances existing at that time. (57 Am. Jur., Wills, § 1209.) In Dyal v. Brunt, 155 Kan. 141, 123 P. 2d 307, we stated the established rule as follows:
“In contruing a will the court must put itself as nearly as possible in the situation of the testator when he made the will and from a consideration of that situation, and from the language used in every part of the will, determine as best it can the purposes of the testator, and the intentions he endeavored to convey by the language used.” (Syl. ¶ 2.)
Let us examine item 3, the first item in dispute. Had the testatrix left the inventoried articles (jewelry, diamond rings, gold-filled bracelet, wristwatch and the gentleman’s gold watch) at various places around Iola at the time she executed her will in May, 1938? There is no evidence she had done so. In fact, there is substantial evidence she wore her jewelry in Iola, and when she was in Philadelphia, after executing the will. There was also testimony by Mrs. Canatsey that the silverware and crystal were shipped to Philadelphia in 1938 and no evidence she left it at various places around Iola at the time she executed the will.
Had she left some property at various places around Iola to which item 3 of the will could apply? Yes, she had. As previously stated, after disposing of most of her household furnishings the testatrix left some rather inconsequential household articles and furniture with some of her friends. They may have had sentimental Value but they were inconsequential as to money value. It- seems those were the only articles around Iola she could then have had in mind. It will be observed item 3 speaks in the past tense. It says, “Personal property left,” (our emphasis) not personal property to be left at various places around Iola or to be deposited in Iola banks at some future time. Furthermore, with reference to articles she had actually left at various places around Iola at the time she executed the will she directed that those articles could be used or sold by the beneficiaries, the Canatseys. That she did not intend to include in item 3 various other personal property than- that left around Iola at the time of executing the will appears to be strengthened by other provisions of the will.
Let us examine item 4 and ascertain, if we may, whether she intended to bequeath . . jewelry, sterling silver and all other personal property” to the Canatseys. (Our emphasis.) We find that item bequeathed none of that property to the Canatseys but expressly bequeathed it all to Helene Stirling. To be sure that item refers to the articles just mentioned as being located in Philadelphia. It appears that is where they were when the will was executed. But irrespective of whether they were located in Philadelphia or elsewhere, the testatrix did not bequeath them to the Canatseys.
Let us now consider the provision pertaining to bonds and cash mentioned in item 4. The amount of cash is not stated. Neither the number, amount nor denominations of the bonds is contained in the will and those facts are now unknown. She executed the will in Iola and probably did not have the description of the bonds with her but she knew there were bonds and cash at the designated bank in Philadelphia. She therefore designated the bonds and cash by means of their location at the time. The location happened to be the designated bank. Did she, by the phrase, “if any at my death,” following the statement relative to the location of the bonds and cash, mean that she did not want Helene Stirling to receive bonds and cash unless they were located in the Philadelphia bank at the time of her death? Or did she intend to bequeath bonds and cash then located in Philadelphia if any bonds or cash remained at her death? We think she intended the latter. At the time she executed the will she probably knew she would later need to use some or all of the bonds and cash then located in the Philadelphia bank. We think the logical and more reasonable interpretation of that portion of the will is that she intended Helene Stirling should have any bonds or cash that remained at her death. This intention is further fortified by the fact she indicated in item 4 that she wanted Helene Stirling to have bonds and cash in the bank “. . . along with jewelry, sterling silver and all other personal property in Philadelphia.” (Our italics.) ■ Here again we think she described the property .included in the last quotation by its location in Philadelphia. She did not say she wanted Helene Stirling to have those articles only in the event they remained in Philadelphia at the time of her death.
There is no evidence that whatever bonds or cash may have been in the Philadelphia bank at the time the will was executed were, or were not, a part of her estate at the time of her death. In the absence of a showing such bonds and cash were no part of her estate at the time of her death we would not be justified in saying that item of the will was adeemed and, therefore, Helene Stirling could not take the property therein mentioned. Ademption is the term used to describe the act by which a specific legacy has become inoperative by the withdrawal or disappearance of the subject matter from the testator’s estate in his lifetime. (In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515.)
Moreover, item 4 also contains the words, “and all other personal property.” That phrase is in the nature of a residuary bequest to Helene Stirling. Irrespective, however, of that fact we are persuaded that under none of the other contentions discussed could any of the property mentioned in item 4 be said to have been intended for the Canatseys. Notwithstanding that fact the trial court concluded all the property designated in item 4 of the will passed to the Canatseys under item 3 of the will. We think that interpretation of the will is not in conformity with the intention of the testatrix.
The judgment is therefore modified with directions to enter judgment in conformity with the views herein stated. | [
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The opinion of the court was delivered by
Harvey, C. J.:
These were two actions for damages sustained in. a collision of an automobile, in which the plaintiffs were riding, and the defendant’s passenger bus, alleged to have resulted from defendant’s negligence. The Lawrence case was tried to a jury. The parties agreed the Taylor case would be tried to the court upon the same evidence. At the close of plaintiff’s evidence in the Lawrence case defendant demurred to the evidence and moved for judgment “for the reason that the plaintiff had failed to prove any negligence on the part of the defendants, and for the further reason that the plaintiff had shown by his evidence that he was guilty of contributory negligence which would bar his recovery.” The trial court sustained the demurrer. No further evidence was offered in the Taylor case and the same demurrer was interposed and the same ruling made thereon as in the Lawrence case. Plaintiffs filed separate appeals, which were consolidated here.
The evidence may be summarized as follows: Sumner street is a north-and-south street in the northeastern part of the city of Topeka, which is a residence district with a few small businesses. It is intersected at right angles by Pennsylvania avenue. Each street is paved with cement twenty-six and one-half feet wide. Neither street is a through street and there is no stop or caution sign on either street at the intersection. Southeast of the intersection is a residence, the north line of which is thirty-two feet south of the south line of Pennsylvania avenue, and the west line is thirty feet east of the east line of Sumner street.
The plaintiff Taylor, forty-five years of age, was a cement contractor and did subcontracting from others. In October, 1947, he was doing the cement work on a group of forty-seven houses being built by a contractor. Sherman Lawrence, forty-fouf years of age, was working for him as a common laborer, making from $40 to $60 per week. Another of his workmen was LeRoy Hyman. On Oc tober 8,1947, Lawrence and Hyman had been working between nine and ten hours and quit for the day about five o’clock in the afternoon. Taylor offered to take them home, the first time he had done so. He planned to come back to the job and look after some of his business.
Taylor’s car was a 1939 Plymouth coupé in good running condition, with good brakes. Taylor was driving. Hyman was sitting in the middle and Lawrence on the right end of the seat. The route took them north on Sumner street through its intersection with Pennsylvania avenue, which they reached about 5:30 p. m. The sun was shining, visibility was good, the pavements were dry and the streets were level at the intersection and each way from it for a block or more. Taylor drove north on Sumner street past the first house southeast of the intersection and when about twenty-five feet south of the intersection both he and Lawrence looked to the east. Lawrence said: “Al, there’s a bus,” and Taylor replied, “I see it.” Both of them thought the bus was traveling about twenty-five miles per hour. That was the maximum speed for motor vehicles traveling that street, as prescribed by the city ordinance. The bus was then about one hundred twenty-eight feet east of the intersection moving west on the north side of the street. Taylor entered the intersection at a speed which he estimated as about fifteen miles per hour. As he entered the intersection he saw the bus, which he then thought was about ninety feet east of the intersection, traveling, as he thought, at about twenty-five miles per hour. Taylor thought he had time to cross the street before the bus would reach the intersection. There was. no car in the intersection and none coming from the north or the west. He drove forward, increasing his speed somewhat, but testified he thought he did not exceed twenty miles per .hour. When the front of his car was about four feet north of the north line of Pennsylvania avenue and about twelve feet of the rear part of his car was in the intersection defendant’s bus struck his car on the rear part of the right side with such force that his car was driven or thrown about fifty-five feet to the northwest and against a tree, two and one-half feet in diameter, which was standing twenty feet west of the west line of Sumner street and thirty-six feet north of the north line of Pennsylvania avenue. As the car reached the tree it was traveling backwards and it struck the tree with such force that it was crushed against the tree. The blow on the car by the bus in the intersection and by the car strik ing the tree damaged the car beyond repair. Lawrence was thrown from the car on the parking and was seriously injured. The extent of his injuries is not involved here. Taylor and Hyman were in the car when it stopped against the tree. Taylor was helped out. He was seriously stunned. The extent of his injuries is not involved here. Taylor testified:
“After I got out of my automobile, I had a conversation with the bus driver. We were standing in the parking and the bus driver said to me that he didn’t see me and he didn’t think I seen him. I said nothing in reply to that. . . . There were no passengers in the bus that I saw. I see these buses around the streets here in Topeka and am acquainted with the type of brakes with which they are equipped. They are air brakes. They make a noise when they are applied. ... I did not hear the application of any air brakes. ... I did not hear the honking of any horn.”
Ernest Piat, a police officer, who reached the scene soon after the collision, testified in part:
“At the scene of this collision I had a conversation with Allen Taylor and also with the driver of the bus, Mr. Bruner. With particular reference to the bus driver, Mr. Bruner, I asked him the location of where the first impact occurred, and he was of the opinion that the impact occurred a little farther south into the intersection than where the paper says where I took my measurements. Then I asked him, after the routine questions, his name, etc., and he was of the opinion he was going twenty-five to thirty miles per hour. I asked him how the accident occurred or what happened and he said he didn’t know, and I asked him if he saw the other car and he made the statement that he didn’t see it and he probably would have struck him if he had been going five or ten miles per hour, or words to that effect.”
The bus had stopped before it was entirely through the intersection.
Bill Coleman, a police officer, reached the scene soon after the collision and among other things testified:
“Mr. Bruner, the bus driver, walked up to me at that'time and I told him t-o move his bus, and that was all the conversation I had with him at that time. The next conversation I had with him was after the ambulance had arrived, and then I questioned him concerning the accident. ... In my second conversation with Bruner, I asked him what had happened and he said he didn’t know; that he didn’t see the Taylor car. I asked him how fast his bus had been driving prior to the collision and he said that he was driving at a normal speed himself and that he didn’t think the other car was going much faster. I questioned Mr. Taylor as to how fast he might'have been going, and he said around twenty-five miles per hour.”
In considering the demurrer to the evidence the court had no authority to weigh the evidence and was bound to consider the evidence offered by plaintiff, and all the reasonable inferences which could be drawn therefrom, most favorable to the plaintiff. (See Waugh v. Kansas City Public Service Co., 157 Kan. 690, 143 P. 2d 788; Gabel v. Hanby, 165 Kan. 116, 193 P. 2d 239; Appleby v. Board of County Comm’rs, 166 Kan. 494, 203 P. 2d 224.
The above summary of the evidence has been compiled with that in view. In examining the witnesses counsel had a plat of the intersection and the near-by portion of the streets, which plat had been drawn to scale. In asking the witnesses where they were at the particular times, or where the bus was at different times, each witness was asked to mark on the plat his idea of the location in question. The distance east of Sumner street, where the bus was when Lawrence and Taylor first saw it and where Taylor saw it as he entered the street, was taken in the above summary from the marked place on the plat by Taylor.
The legal questions here involved are so well settled in our law that they need not be labored. The actions were ones at common law in which plaintiffs sought damages alleged to have resulted from defendant’s negligence, and defendant had pleaded contributory negligence of the plaintiffs. These are the kinds of actions in which each party is entitled to a trial by jury as a matter of right. They should not be converted into trials by the court. Negligence is the lack of due care. The instances are relatively rare when the facts are such that the court should say that as a matter of law the negligence alleged has been established. Before the court should make such a holding the evidence should be so clear that reasonable minds, considering it, could have but one opinion, namely, that the party was negligent. In these cases we think the contributory negligence of plaintiffs was clearly a question of fact for the jury. More than,that, plaintiffs were not required to anticipate that with their car in the intersection defendant’s bus would be driven into it and against their car at a speed of twenty-five to thirty miles per hour, with its driver not watching enough to know that the car was in the intersection. Under the evidence the jury might very well have found such acts of defendant'to be the proximate cause of the injury.
At the time of the ruling upon the demurrer the trial court expressed the view that the warning given by Lawrence was not enough. We think the most that can be said for the defendant in that regard is that it was a question for the jury. Appellees cite and appear to rely upon Curtiss v. Fahle, 157 Kan. 226, 239, 139 P. 2d 827, where the passenger said to the driver, “Look out, Chuck.” Under the facts in that case the court held the warning was given too late. It was not held insufficient because of the words used. Here, the warning was timely made. In Witte v. Hutchins, 135 Kan. 776, 12 P. 2d 724, where the guest said, “Look out,” and no more, the question of whether that was sufficient was held for the jury. And in Steele v. Russell, 162 Kan. 271, 273, 176 P. 2d 251, where the plaintiff called out to the driver, “Car,” the defendant filed a motion for a directed verdict on account of the insufficiency of the warning. The motion was overruled by the trial court and the ruling was affirmed here.
Our attention is called to G. S. 1947 Supp. 8-550, which is also embodied in the revised ordinance of the city of Topeka, section 25-532, which provides:
“(a) The driver of a vehicle approaching an intersection shall yield the right of way to a vehicle which has entered the intersection from a different highway.
“(b) When two vehicles enter an intersection from different highways at the same time the driver of the vehicle on the left shall yield the right of way to the vehicle on the right.”
It is clear under the evidence that the car in which plaintiffs were riding entered the intersection first, for it had traveled about thirty feet before it was struck, while defendant’s bus, traveling at as high or a higher rate of speed than plaintiff’s car, had passed through only about nine feet of the intersection when it struck the car. Under the evidence, subsection (a) of the statute is applicable and subsection (b) is not.
In the Taylor case appellee makes the point here that the amount of damages sustained by plaintiff was not shown. This point was not raised by defendant’s demurrer, and the record does not show that it was presented to or considered by the trial court. Therefore, the appellee is in no position to raise the point here for the first time.
The judgment of the court below in each case is reversed with directions to grant a new trial.
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The opinion of the court was delivered by
Arn, J.;
Plaintiff seeks a mandatory injunction to compel defendants to remove certain dams which they have placed in and across the bed of Eagle Tail creek. The trial court made findings of fact, refused the mandatory injunction prayed for by plaintiff, and rendered judgment for defendants. The plaintiff has appealed. For convenience we will refer to the parties as plaintiff and defendants, as they appeared at the trial below. ■
The plaintiff’s petition prayed for a mandatory injunction commanding the defendants to 'immediately remove all of their man-made obstructions in and across Eagle Tail creek which diminish the natural flow of water in said stream, and that defendants and their agents and representatives be perpetually enjoined from damming, obstructing or diminishing the natural flow of said stream onto plaintiff’s land, except that defendants may make such use of the waters in said stream as they are entitled to make without injury to plaintiff or his property.
Eagle Tail creek is a small stream which originates in and meanders through Wallace county. About 1909 the Union Pacific Railroad Company erected a dam in the NE ^ of section 6, township 14, range 40, on said stream for its use and diversion for railroad purposes in the vicinity of Sharon Springs. The railroad properly acquired from the predecessors in title of all parties to this action its right to construct the railroad dam, and the existence of the railroad dam is not challenged in this lawsuit. Below this dam the stream meanders northeast into section 31, township 13, range 40, owned by the defendant Boone, thence east through the west half of section 32 owned by defendant Lutz, thence through the east half of section 32 owned by defendant Schulz, and then through section 33 owned by the plaintiff. All of said lands were patented by the United States to predecessors in title of the present owners thereof at various times after March 13, 1891, as- shown by the public records of Wallace county. The plaintiff acquired and began occupying his land in January, 1941. There are five dams on the Boone land, six dams on the Lutz land, and two dams on the Schulz land, all of which are located in Eagle Tail creek in that order below the railroad dam. The first dam on the Boone land is 2,879 feet below the railroad dam. The other dams are from 321 feet to 2,100 feet apart across the defendants’ two sections — and the last dam on the Schulz land is 3,200 feet above plaintiff’s west line. As to the foregoing general situation, there is no dispute, but in the development of the further facts there' was some conflict in the testimony upon which the trial court made findings. On the next day after hearing all of the testimony, the trial judge of the court below made a personal inspection and view of the stream along and across all of the land here involved and along the greater part of the stream’s course.
Most of the findings made by the court below are sufficiently important to give space:
“(3) The court further finds that all of ‘the real estate above described was patented by the United States of America to predecessors in title of the owners of the above lands at various times after. March 13, 1891, as shown by the public records of Wallace county, Kansas. . . .
“(7) The court further finds that Eagle Tail Creek has at all times, as indicated by the records and the testimony in this case, been an intermittent flowing stream in its channel. The amount of water flowing in said channel has been largely governed by the season of the year or the precipitation falling in the immediate vicinity of the stream. It generally flows in the winter months and is diy in the summer months.
“(8) The court further finds that like a good many other Western Kansas streams, it largely went to pools or ponds, varying in depth from a foot to several feet, where the water would stand in seasons when the stream was not running, and that the dams complained of are obstructions placed at the lower or downstream side of said natural ponds or pools that had existed in said stream for many years, and that they consist of surface obstructions only.
“(9) The court further finds that the soil along said stream may be described as a sandy or porous soil, and that all of the parties along said stream have used said water for domestic use and for the purpose of subirrigation and as cattle water.
“(10) The court further finds that the annual rainfall of Wallace county, Kansas, is approximately 16.5 inches. That the annual rainfall for each of the years after the acquisition of title by the plaintiff to his land, according to the records of the United States government weather observer at Sharon Springs, Kan., is as follows:
1941 24.35
1942 .19.76
1943 13.39
1944 ,18.86
1945 15.34
1946 17.62
1947 ,17.79
“(11) The court further finds that the vegetation along said stream and on the real estate adjacent thereto, and, in general, over Western Kansas, has increased considerably during the years since 1941. That the runoff of water is not as great as it was previously; that flood waters have been at a minimum.
“(12) The court further finds that the defendant John M. Boone has constructed upon the real estate owned by him five dams or obstructions at the end of old water holes, ponds or depressions in the creek bed. That said dams are very small obstructions or low water devices which tend to dam back excessive water in said holes and to impound water and to spread or force the same by subirrigation to meadowland along the creek channel. That said John M. Boone has about sixty acres of alfalfa growing along the stream. That he operates said land as a farming venture. That he keeps from thirty-five to sixty head of livestock in the summer.
“(13) The court further finds that the defendant C. 0. Lutz has constructed at the end of pools or ponds or depressions in the channel on his real estate six obstructions or dams which tend to hold back water and to impound and force the same by subirrigation into the surrounding meadowland. That said land is used for agricultural purposes. That all of the land along the banks of the creek is meadow or hay land. That there is pastured on said real estate thirty-five to seventy head of livestock. That, if said dams are removed, defendant Lutz will be without water facilities in summer months to care for said livestock.
“(14) The court further finds that the defendant Lewis Schulz moved upon his land in 1946, and is living there. That he keeps a small herd of cattle, normally fifteen to twenty-five head. That he has two dams on his premises. That said dams or obstructions are small in size and similar to the construction of the other dams. That except for said dams said defendant Schulz would be without water for livestock except from wells.
“(15) The court further finds that said alfalfa land of Boone and his plowed land is located on the West Half ('WVz) of Section Thirty-one (31); that the East Half (E%) is in its natural state. That all of the land on the Lutz half section is in its natural state of meadowland and prairie grass along the creek bank and for a substantial distance each way from the banks.
“(16) The court further finds that the plaintiff John Heise has cultivated land adjacent to the creek bed almost all the way across his land, which has naturally caused the stream to silt up to quite a degree.
“(17) The court further finds that the dams in question in this case were constructed over a period of time from the fall of 1943 up to and including the month of May, 1945. No dams have been constructed since that time. That none of the dams in question impound in excess of one acre-foot of water, except possibly dam No. 3 on plat on the Boone land; and that the water impounded by all of said dams or obstructions is considerably less than ten acre-feet of water; and that all of the land along said stream is used for agricultural purposes; and that the waters of said stream are used for watering livestock and also for domestic purposes, and, to a certain extent, for subirrigating lands adjacent to the stream. That no water is diverted from the stream, except that taken by the Union Pacific Railroad Company.
“(18) The court further finds that for several years preceding this hearing the Union Pacific Railroad Company has operated a water softener plant, which it flushes two or three times a week; that it requires an additional 100,-000 gallons of water for each of such operations; and that its average daily use of waters impounded by the railroad dam is approximately 100,000 gallons.
“(19) The court further finds that the flow of water in Eagle Tail Creek has been gradually diminishing above the railroad dam for severeal years, and frequently, when excess water is being used by the railroad, no water flows over the dam, and at certain dry seasons of the year there has been no flow over the railroad dam for weeks at a time, and it has always gradually diminished in the amount of water both prior to and subsequent to the erection of said obstructions or dams during the period covered by the testimony, as it proceeds down its course.
“(20) The court further finds that during the summer months before the construction of said dams the parties defendant in this action, or their predecessors in title, were frequently unable to get sufficient water for their cattle; and that, without such dams or obstructions, there would be insufficient water for livestock pastured on their lands along said creek. This is true also of the plaintiff, on whose land there was frequently a lack of water for cattle purposes prior to the complained of obstructions, except that the plaintiff has at least one pool, which is fed by springs, which never goes dry; but most of the pasture land of the plaintiff lies away from the course of the stream and is separated from the stream by land which the plaintiff cultivates and farms.
“(21) The court further finds that the complained of dams or obstructions in said stream have not materially reduced the amount of water available to the plaintiff; that the plaintiff maintains a dam on his premises, which is probably as large or larger than any of the dams complained of, and, if the plaintiff has suffered any loss by reason of said obstructions, they are not other or different losses than those suffered by any other owners farther down the stream.
“(22) The court further finds that the plaintiff formerly maintained a well across the creek from his improvements from which he obtained water for domestic uses and for watering livestock; that he has ceased to operate said well. That the underflow or ground water of the creek is across the creek from his improvements and that in all probability ample water for domestic and cattle uses could be obtained from the same source it was formerly obtained from; that he has made no effort to obtain this water from such source. That there is not now and never has been sufficient water on the side of the creek where his improvements are for domestic and livestock purposes; but there has always been ample water in one or probably two water holes in the creek which have never been known to go dry.
“And the court, having found as a matter of fact that there has been no material reduction in the amount' of water passing down Eagle Tail' Creek by reason of .the obstruction complained of, must, therefore, conclude that the plaintiff has not been damaged by reason thereof, and that the mandatory injunction requested in this case should be, and the same is, hereby refused. That the defendants herein have their vested rights in the use of said water, which can not be disturbed.
“It is therefore ordered, adjudged and decreed by the court that the plaintiff has not been damaged by reason of the damming of Eagle Tail Creek by the defendants and that a mandatory injunction is hereby refused.”
Additional findings:
“(1) That the several dams on the lands of the defendants have served to raise the water level in their natural ponds.
“(2) That the defendant, John M. Boone, does not reside upon his land, although it is improved.
“(3) That the old water holes, ponds or depressions in the creek bed behind each of the five dams on the Boone property are now normally filled with water the year around and during the fall, winter and spring months water normally will run in the channel from one dam to the next.
“(4) That the defendant, Bpone, has impounded water on his land far in excess of the amount required for his domestic purposes and to water his livestock, his largest dam impounding water 4% to 5 feet deep by 20 feet across and about 14th mile long.
“(5) That a considerable quantity of water stands behind each of the dams on the Lutz property the year around, and in the fall, winter and spring months, water normally flows in the channel from one dam to the next, but said water holes have been known to go dry during the summer months.”
Plaintiff requested certain findings of fact and conclusions of law. He also moved to amend certain of the court’s findings and to vacate others, which motion was sustained in part resulting in the findings as set forth above. Plaintiff also filed his motion for a new trial and it was overruled. On appeal plaintiff argues that the trial court erred in refusing to make findings of fact as requested by plaintiff, but from a careful examination of the complete record we find no basis for his contention. Plaintiff sets forth four specifications of error but states in his argument and, brief that they will be presented as one. Stated generally, the plaintiff’s contention here is that the findings and judgment of the trial court are not supported by the evidence.
It is apparent from the findings of the trial court, supported by the evidence and by the personal inspection of the stream made by the trial judge, that Eagle Tail creek generally flowed in the winter months and was dry in the summer months — that even before the construction of the dams complained of, the stream did not flow during dry seasons — that no water was being diverted or wasted by defendants — that defendants’ dams did not materially reduce the flow of water downstream to plaintiff’s land — that all thirteen dams combined would impound a total of less than ten acre-feet of water behind dams considerably less than ten feet high, and the water so impounded was for beneficial use and domestic purposes. Our examination of the record reveals no basis for a finding, and none was made by the trial court, to the effect that defendants’ use of the water was unreasonable. Neither was there a finding that the stream flow through plaintiff’s land would have been substantially greater if defendants’ dams were eliminated. Without findings favorable to plaintiff in these two respects, plaintiff’s case for injunctive relief is weak. Other findings made by the trial court are decidedly favorable to defendants. The district court has wide discretion in matters of equitable cognizance such as the granting or refusing to grant an injunction.
There was evidence that since 1941 the use of water by the railroad- from its reservoir upstream was substantially increased; there were more vegetation, trees and crops adjacent to the stream thereby causing a greater use of the water through transpiration; and engineering reports indicated there must have been an increased subterranean flow which would decrease the flow in the stream bed. Defendants argue that all these circumstances may tend to decrease the stream flow through the bed of the channel, and while each such circumstance constitutes a consumptive use, it is neither waste, diversion, nor an unreasonable use; and that if the creation or enlarging of ponds along the stream increases the underground flow, the resulting subterranean irrigation and raising of the water table is advantageous to all adjacent and lower riparian owners and could constitute a reasonable and proper consumptive use of the impounded waters. This is an impressive argument in the light of all the evidence and the findings made by the trial court.
A majority of the cases cited by appellant involve diversion of water from the stream by means of channel changes, ditches, and so forth. As has been noted, there was a trial court finding (No. 17) that no water was diverted from Eagle Tail creek by any of the defendants. That finding is supported by the evidence and consequently the foregoing cases are not in point.
Under the common-law doctrine of riparian rights, an upper riparian proprietor may impound water for beneficial use for domestic purposes as long as he does not commit waste, and does not unreasonably use or divert the water away from the lower riparian owners. In any event, a lower riparian owner may not rely upon the common-law doctrine of riparian rights for injunctive relief unless it is first established as a fact that the upper use complained of by him has materially reduced the stream flow onto his land. In the instant case, these matters having been resolved in favor of the defendants, it cannot be said the defendants violated whatever common-law riparian rights plaintiff may otherwise have had.
See Restatement, Torts, Yol. IV, § 849 (pp. 342-346) for analysis of the two common-law theories of riparian rights, as follows:
“This law of Riparian Rights, although originating in this country, found its way into the English cases between 1820 and 1840 and was fully expounded in the classic case of Embrey v. Owen, 6 Exch. 353, decided by Baron Parke in 1851. That case is one of the leading cases on the subject and has often been cited and quoted both in this country and in England.
“The application of the principle of equal rights to particular cases has proved a difficult task to most of the courts and there has been no uniform agreement among them as to exactly what is meant by equal rights. A study of the cases discloses two fundamentally different theories or views on the question. One is the theory adopted by the English courts and some American jurisdictions which may be called the Natural Flow or Natural Law theory. The other, adopted by a number of American jurisdictions, is the Reasonable Use theory. An understanding of the cardinal features of each of these theories of Riparian Rights is essential to an understanding of the rules stated in this Topic.
“The natural flow theory. Under this theory the primary or fundamental right of each riparian proprietor on a watercourse or lake is to have the body of water maintained in its natural state, not sensibly diminished in quantity or impaired in quality. Each proprietor, however, is recognized as having a privilege to use the water to supply his ‘natural’ wants, and each also has a privilege to make ‘extraordinary’ or ‘artificial’ uses so long, but only so long, as such uses do not sensibly or materially affect the natural quantity or quality of the water, and are made on or in connection with the use of the riparian land. These limited privileges in each proprietor qualify the primary rights of the other proprietors to have the stream or lake maintained in the status quo of nature. Thus, according to this theory of riparian rights, all proprietors have equal rights to have the water flow as it was wont to flow in the course of nature, qualified only by the equal privileges in each to make limited uses of the water. . . .
“The advantages of this theory are that it is relatively more definite and certain, and that each riparian proprietor knows what uses he can or cannot lawfully make of the water. The disadvantages of the theory are that it is non-utilitarian and prohibits many beneficial uses of water although those uses may be causing no one any harm, and although the water would run to waste if not so used.
“The Reasonable Use theory. Under the Reasonable' Use theory the primary 'or fundamental right of each riparian proprietor on a watercourse or lake is merely to be free from an unreasonable interference with his use of the water therein. Emphasis is placed on a full and beneficial use of the • advantages of the stream or lake, and each riparian proprietor has a privilege to make a beneficial use of water for any purpose, provided only that such use does not unreasonably interfere with the beneficial uses of others. Reasonable use is the only measure of riparian rights. Reasonableness, being a question of fact, must be determined in each case on the peculiar facts and circumstances of that case. Reasonableness is determined from a standpoint of a court or jury and depends not only upon the utility of the use itself, but also upon the gravity of its consequences on other proprietors. . . .
“The advantages of this theory are that it is entirely utilitarian and tends to promote the fullest beneficial use of water resources. Furthermore, there are no absolute or technical rights and a cause of action arises only when one proprietor’s use of water causes substantial harm to, and an unreasonable interference with, another’s use. One need, not fear that another is acquiring any prescriptive rights against him until his use has been actually interfered with. The disadvantage of the theory is its indefiniteness. Under it one cannot always be absolutely sure just what uses he can or cannot lawfully make of the water-; and even though a use may, in its inception, be reasonable, circumstances may change to such an extent that it will become unreasonable.
“A few courts adopt the full Natural Flow theory, while a few others completely adhere to the Reasonable Use theory. Most courts, either not realizing that there are two distinct theories or not fully grasping their fundamental differences, attempt to apply both theories, with results that are not only illogical but weirdly inconsistent at times.”
Also, see, 67 C. J. 917, § 364:
“The damming of a nonnavigable stream is not necessarily, or even prima facie, a public or a private nuisance, for it is fundamental that an upper riparian may reasonably detain and use the waters of a stream flowing through his land. Indeed it has been declared to be the settled policy of some states to encourage the development, by private initiative, of the water power of their streams.”
The Kentucky court in City of Louisville v. Tway, 297 Ky. 565, 180 S. W. 2d 278, applied the reasonable use theory:
“The distinction between the ‘natural flow rule’ and the ‘reasonable use’ theory is very close, and even under the natural flow theory, each riparian owner is recognized as having a privilege to use the water to supply his natural wants, and to make extraordinary or artificial uses so long as such uses do not materially affect the quantity or quality of the water and such uses by a lower riparian owner.”
“Under the ‘reasonable use theory,’ before one riparian owner is subjet to liability, his use of the water must be unreasonable in respect to the riparian proprietor who is harmed by it, and mere detention of the water is not of itself the injury.”
“Evidence failed to show that upper riparian owners made unreasonable use of the water from a stream or spring, and was insufficient to show that the acts charged to such owners seriously or unreasonably amounted to such injury to lower riparian owners as would entitle them to an injunction.” (Syl. ¶[¶ 1, 2,3.)
The “reasonable use” theory prevails in the great majority of states where the common-law doctrine has been applied. And this theory, as distinguished from the “natural flow” theory, has been adhered to in this state whenever the common-law doctrine of riparian rights was under consideration by this court. In Clark v. Allaman, 71 Kan. 206, 80 Pac. 571, we said:
“The restrictions upon the use of water for irrigation, after the primary uses for quenching thirst and for domestic requirements are subserved, are those which justice and equity suggest. In all cases the use must be reasonable, and the right of each must be exercised with due regard for the equal rights of others.” (p.241.)
In Frizell v. Bindley, 144 Kan. 84, 58 P. 2d 95, the reasonable use theory was extended to irrigation:
“. . . American courts have not hesitated to declare that, subject to its primary uses of lavandum and potandum, the use of water of a flowing stream for irrigation is one of the common-law rights of a riparian proprietor. But such right is not one which could be acquired by prior appropriation at common law. It is limited by the equal right of every other riparian owner along the course of the stream to irrigate his lands therefrom; and no prescriptive rights to water for irrigation purposes can be acquired by one riparian landowner to the detriment of other riparian landowners. (Clark v. Allaman, supra, syl. Hff 10, 11, 14.) At the instance of a lower riparian owner the courts will grant injunctive relief against an upper riparian who diverts or wastes the water of a flowing stream.” (p. 93.)
Holding that a lower riparian owner could enjoin an upper one who diverted waters from a stream without devoting it to any beneficial use, and thus permitted the water to run to waste over a sand bar onto nonproductive land, it was said in Campbell v. Grimes, 62 Kan. 503, 64 Pac. 62:
“Some doubts may have existed in the ancient common law as to the right of an upper riparian proprietor to appropriate all of the water flowing through his land, whether necessary to his reasonable purposes or not; but there can be no doubt now that he has no right, as against a lower proprietor, to appropriate any more of the water of the stream than is needed for his own beneficial uses. The uniform holdings of the courts are that he has no such right, and upon the nonexistence of such right plans for the equitable di vision of water among riparian proprietors have been devised by statute in all of the states where irrigation can be successfully practiced.” (p. 505.)
See, also, Railway Co. v. Shriver, 101 Kan. 257, 166 Pac. 519, where the language used is quite applicable to the instant case both as to the question of reasonable use and as to the effect of the trial court’s findings and judgment:
“The railway company as a riparian owner had the right to make reasonable use of the water of the stream for the purpose of supplying its engines and operating its railroad. Reasonable use means such use as is consistent with the equal rights of other riparian owners. (Clark v. Allaman, 71 Kan. 206, 80 Pac. 571.) In the case cited, abstraction of water from a stream for irrigation purposes was sanctioned. Abstraction of water for railroad purposes by a railway company which is a riparian owner is merely another use, the propriety of which can not be questioned so long as the rule of fairness and equality between owner and owner is observed.
“When water is abundant there is no occasion to dispute about its use. Only when the flow becomes scanty does necessity for adjustment arise. In this case matters were brought to a crisis by an unprecedented drought, which the court felt impelled to classify as an act of God. The court found specifically that the dam did not back water far enough to interfere with the operation of the defendant’s upstream mill, and found specifically that the quantity of water taken by the plaintiff did not in any appreciable degree affect the operation of the defendant’s downstream mill. These were questions of fact, the solution of which depended on the estimate placed by the court on the evidence, which was conflicting to the point of contradiction. It is not necessary to review the evidence. It has been examined, and that upon which the court must have relied is abundantly sufficient to sustain the findings. Beyond ascertaining this fact, this court on appeal has no function to perform with respect to the evidence.” (p. 258.)
The findings of the court below are supported by the evidence. From those findings we must conclude that defendants’ use of the waters of Eagle Tail creek was reasonable; that such water was neither wasted nor diverted; and that its use by defendants did not materially reduce the flow of water downstream to plaintiff. It follows that plaintiff was not entitled to an injunction under the common-law doctrine of riparian rights.
In the prosecution of this appeal both sides have relied chiefly upon the common law. However, aside from any application of the common-law doctrine of riparian rights, defendants contend there is another aspect of the case which compels an affirmance of the trial court’s judgment in their favor. To support this contention they cite statutes which are said to have modified the common law (G. S. 1935, ch. 42, art. 3, and G. S. 1947 Supp.; G. S. 1935, ch. 82a, art. 3, and G. S. 1947 Supp.; G. S. 1947 Supp., ch. 82a, art. 7). It is true that the evidence before us and the findings of the trial court are that all of the thirteen dams complained of were substantially less than ten feet high, and in each instance the amount of water impounded was much less than fifteen acre-feet. Section 82a-304, G. S. 1935, a part of the act regulating the placing of obstructions in streams and rivers, and one of the statutes stressed by defendants, provides:
“The provisions of this act shall not prohibit the placing in any purely private stream of any dam not more than ten feet high and not impounding more than fifteen (15) acre feet of water.”
This statute and others enacted since 1917 (and perhaps since 1911) have undoubtedly modified the common-law doctrine of riparian rights which theretofore had been the basic principle of water rights in this state (State, ex rel., v. Board of Agriculture, 158 Kan. 603, 608, 149 P. 2d 604). However, there is no occasion here to discuss the extent to which that common-law doctrine may have been modified by statutory enactments. We know of no statute which would be of assistance or solace to the plaintiff, and since he has failed to establish any right to an injunction under the broader and more elastic common-law doctrine, a further discussion of the statutory rights of defendants would be of little purpose.
The judgment of the trial court is affirmed in accordance with the views expressed in this opinion. | [
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The opinion of the court was delivered by
Hoch, J.:
Plaintiffs secured a judgment against the defendants in an action to recover money which they alleged belonged to them and was wrongfully retained by defendants. Defendants appeal, alleging various errors to which reference insofar as necessary will hereinafter be made.
Plaintiffs, Adam Schreiner and Lydia Schreiner, his wife, will be referred to herein as Schreiner and Mrs. Schreiner. Defendants, C. H. Rothgarn and A. P. Rothgarn, his wife, will be referred to as Rothgarn and Mrs. Rothgarn.- Plaintiffs were residents of Reno county, and defendants of Barton county.
Plaintiffs alleged that in the spring of 1932 they owned certain city lots in the town of Milo, Iowa, which they listed for sale with Rothgarn; that at the solicitation of Rothgarn they signed, acknowledged and delivered to him a deed in blank to the property, the name of the grantee to be filled in by Rothgarn when the property was sold; that in the spring or summer of 1932 Rothgarn sold the property for the sum of $1,600, receiving payment therefor from the purchaser; that plaintiffs permitted Rothgarn to keep the money for them, and in April, 1935, learned that he had paid “the said $1,600” to Mrs. Rothgarn and that they allowed Mrs. Rothgarn to keep the money for them; that the money was left with the Rothgarns upon their assurance that it would be safe in their hands; that on January 4,1938, they first made demand for the money, but that defendants refused and have continued to refuse to deliver it to them.
The petition did not allege any agreement that interest was to be paid, but in the concluding paragraph, without giving the rate at' which, or the date from which interest was computed, it was alleged that the interest on the $1,600 “amounted to $576 during the time defendants had it,” prior to the date of demand, and that there was due from defendants $2,176 with interest at six percent after January 4, 1938. Rothgarn answered with a general denial and alleged that the plaintiffs had traded the Iowa property to him as the down payment on a farm in Rush county, Kansas, which he had agreed by written contract to sell to them; that the agreement was that he would take the Iowa property as the down payment in the sum of $800 and would give the plaintiffs credit for any amount in excess of which he might receive from the sale of the Iowa property; that the balance due on the Rush county farm after the credit of $800 was $3,700; and that his net proceeds from the sale of the Iowa property were $712.69; that the plaintiffs took possession of the Rush county farm, but made default in the terms of the contract by failure to pay interest, taxes, etc., and surrendered possession of the farm. Rothgarn’s answer further alleged that plaintiffs were informed in the late spring or summer of 1932 that he had only received $712.69 for the Iowa property, and contended that the action was barred by the statute of limitations. Rothgarn also filed a cross petition asking judgment against plaintiffs for $140.71, being the balance alleged to be due on a note of $150 executed by plaintiffs on March 9,1933.
Mrs. Rothgarn demurred to the petition on the ground that it did not state a cause of action against her, and this demurrer was overruled.
The case was tried before a jury, and at the conclusion of plaintiff’s evidence Rothgarn demurred to the evidence on the ground that plaintiffs had offered no evidence as to the price received for the Iowa property except a deed which recited that the consideration was $775, and that the action was barred by the statute of limitations. Mrs. Rothgarn demurred for the same reason and for the further reason that there was no evidence to show liability on her part and no evidence of contractual relation between her and the plaintiffs. Both demurrers were overruled and evidence was then offered by the defendants.
The jury rendered a verdict reading as follows:
“We the jury empanelled and sworn, in the above-entitled case do upon our oaths find for the plaintiffs and'against the’ defendants C. H. Rothgarn and A. P. Rothgarn and assess the amount of their recovery at 11,400.”
On the following day and in the absence of the jury, but before the jury-had been dismissed, the court, upon motion of the plaintiffs, modified the verdict and fixed the amount of recovery at $2,176 with interest at six percent from January'4, 1938. This was done over the objection of the defendants.
We will first examine instruction No. 10, and in connection therewith the action of the court in increasing the amount of the verdict, both of which are among the principal grounds for reversal urged by appellants.
Appellees contend that appellants did not object to instruction No. 10 “until after the verdict,” while appellants state that instruction No. 10 “was objected to by both plaintiffs and defendants.” On this point the record is not entirely clear, but, in any event, the propriety of instruction No. 10 was clearly raised on the motion for new trial and will be here considered as having been timely made.
After reciting the allegations of the plaintiffs that they employed Rothgarn to sell the Iowa property for $1,600 and that he did sell it in 1932 for that amount and collect the money, and that he fraudulently persuaded the plaintiffs to let him keep the money, and that sometime in 1935 Mrs. Rothgarn received the $1,600 from Rothgarn and advised the plaintiffs that she was keeping the money for them, and that return of the money was first demanded on January 4, 1938, instruction No. 10 concludes with this paragraph:
“So, if the plaintiffs have proved by a preponderance of the evidence that the transaction as claimed by them did take place, and that either of the defendants, C. H. Rothgarn or A. P. Rothgarn, are now holding, and have not paid to the plaintiffs said sum, then your verdict should be for the plaintiffs in the sum of 12,176, with interest thereon at the rate of six percent per annum from January 4, 1938.”
The first question which arises in connection with this instruction relates to the matter of interest. The petition alleged that Rothgarn received $1,600 for the Iowa property sometime “in the spring or summer of 1932 — the exact date being unknown to the plaintiffs”— and there was no allegation of any agreement to pay interest. There was no allegation that demand for interest had been made from 1932 to January 4, 1938, and the only reference to the matter of interest in the petition was its closing allegation, heretofore referred to, that $576 interest was due to January 4, 1938. If Rothgarn received $1,600, as alleged by the plaintiffs, and the money was simply left with him for safekeeping, it should be treated as a trust fund and no interest would accrue prior to demand. On the other hand, if it is to be treated as a debt drawing interest, as alleged by plaintiffs, and there was no obligation evidenced in writing, appellants’ contention that the claim was barred within three years under the statute of limitations, G. S. 1935, 60-306 (2), must be given consideration. The court gave no attention in its instructions as to whether the money, if received by defendants, was to be treated as.a debt or a trust fund, but simply instructed that if Rothgarn received $1,600, as alleged, the jury should find for the plaintiffs in the sum of $2,176, which included $576 in interest. Apparently, no attention was paid to the contention of defendants that the money received for the Iowa property was to be applied as a down payment on the Rush county farm. In.any event, in the absence of any allegations in the petition or any testimony as to the rate of interest which was to be paid, or the time at which interest was to begin, except the allegation that the money was received “sometime in the spring or summer of 1932,” there was no basis for an instruction that the jury, if it found for the plaintiffs, must find that there was $576 in interest due. More than that, the plaintiffs alleged that Mrs. Rothgarn said in 1935 that she had received the money, and the court instructed the jury that it was plaintiffs’ contention that she received the $1,600 in 1935, but in spite of that fact the court entered a judgment against Mrs. Rothgarn as well as against Rothgarn which included interest from 1932. In no event, on the record, could Mrs. Rothgarn be liable for interest prior to 1935.
The only testimony offered by plaintiffs to support their allegation that the Iowa property had been sold for $1,600 was the testi mony of Schreiner that Rothgarn told him he had received $1,600 for the property and the testimony of Mrs. Schreiner that Mrs. Rothgarn told her in 1935 that she had received the $1,600 from Rothgarn and was keeping it for plaintiffs. Defendants denied having made such statements and said that the property had been sold for $775 and that after deducting taxes and fees due in connection with the sale Rothgarn had received $712.69 for the property. A deposition of J. E. Clayton, a real-estate dealer of Milo, Iowa, through whom it was alleged by Rothgarn the sale had been conducted, was introduced corroborating Rothgarn’s testimony as to the amount received. M. H. Henderson, cashier of the Peoples Trust and Savings Bank of Indianola, Iowa, testified by deposition.that his bank had assisted in handling the transaction and he also corroborated Rothgarn’s testimony.
It also appeared on the face of the deed to the Iowa property, signed by plaintiffs and submitted in evidence, that the consideration received was $775, but plaintiffs answer this with the statement that the deed was blank as to amount and as to the name of the grantee when they signed it and that these omissions were later filled in by the defendants. Also, several witnesses testified that Schreiner had told them that he had traded in his Iowa property on a Rush county farm, all of which testimony Schreiner denied.
We consider next the action of the court in modifying the verdict. As heretofore noted, the verdict read “We find for the plaintiffs and against the defendants and assess the amount of their recovery at $1,400.” Plainly, that verdict could not stand. On no theory advanced nor by any method of computation suggested were there any grounds for fixing the amount of recovery at $1,400. Plaintiffs testified that defendants told them the property had been sold for $1,600. Evidently the jury did not believe the plaintiffs' testimony on that point. Rothgarn testified that he was to sell the Iowa property and credit the proceeds on the Rush county farm and agreed that the credit would be not less than $800. He testified that the property was sold for $775 and introduced considerable corroborative testimony to that effect. If the jury believed defendants’ testimony as to the selling price, no computation of interest to be added will produce a total amount of $1,400. Under the testimony the property sold either for $1,600 or $775.
There was also conflicting testimony as to the amount unpaid on a promissory note given by Schreiner to Rothgarn in 1935 covering a loan of $150. Although plaintiffs allege that Rothgarn had $1,600 of their money, with no interest being paid, and no demand for interest or principal until January, 1938, Schreiner borrowed $150 from Rothgarn in 1933. Whatever testimony as to this item may be believed or disbelieved, it furnishes no help in arriving at a computation of $1,400.
No assumption of belief by the jury in the testimony of the plaintiffs or defendants, either in whole or in part, can produce a verdict of $1,400. The verdict was irreconcilable on its face and should have been set aside, the case returned to the jury for further consideration or a new trial granted. (27 R. C. L. 889, 890; 64 C. J. 1088, 1100; Morley v. Wilson, 109 Kan. 603, 201 Pac. 81.) The court-was without authority to modify the verdict and render judgment against the defendants for $2,296.77. Many decisions support the right of the court to modify a verdict where it appears that there has simply been a mistake in computation, or to fix an amount where there is undisputed testimony as to the amount due, if liability is established by the verdict. Such a situation does not exist in the instant case. There had been disputed testimony both as to the price at which the Iowa property was sold and as to the contention of the defendants that the proceeds were to be applied as a credit-on the purchase of the Rush county farm. No arithmetical or clerical error, no mere mistake in computation was involved, and under the facts shown by the record neither the trial court nor this court has authority to modify the verdict as suggested by appellees. The Kansas decisions and others cited by appellees have been examined and are clearly distinguishable from the case at bar. Appellees cite as a leading case Kansas Wheat Growers Ass’n v. Smith, 127 Kan. 267, 273 Pac. 437. The first paragraph of the syllabus is as follows:
“In an action for the recovery of money only, where the evidence of the plaintiff tends to show that a definite amount is due, and the evidence of the defendant tends to show that he is not liable for any amount whatever, without attempting in any manner to correct or modify the figures given by plaintiff, a verdict for plaintiff for a less amount than that shown by the evidence should be set aside.” (Syl. ff 1.)
The second paragraph of the syllabus states the proposition that a- new trial will be avoided under R. S. 60-3317 and 60-3330 by directing a judgment for a definite amount shown by the evidence to be due in cases where “the undisputed evidence shows a definite amount of liability, if any exists.” In the opinion are cited quotations from a number of Kansas cases supporting the statement heretofore made in the first paragraph of .the syllabus. It is unnecessary to lengthen this opinion by analysis of other cases cited. We find nothing in them contrary to the view already expressed. G. S. 1935, 60-3317, grants to this court no power to change the verdict under the facts stated in this case which the trial court did not have. That section simply provides for disregard of mere technical errors and irregularities where it does not appear that the rights of the complaining party have been prejudiced thereby and where, upon the whole record, it appears that substantial justice has been done, and for the rendering of such final judgment under such circumstances as justice requires.
Inasmuch as the conclusions above stated dispose of the appeal other contentions of the appellants need not be considered.
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Gernon, J.:
This is an appeal by T.J. Kline, Inc., (Kline) and Guaranty Service Corporation, Inc., (Guaranty) from the trial court’s ruling granting summary judgment to the plaintiffs, City of Arkansas City, City of Hesston, and Southwest National Bank, Wichita, Kansas.
The facts will be repeated only as necessary for an understanding of the rulings in this appeal. This appeal is a follow-up to the Kansas Supreme Court decision in City of Arkansas City v. Anderson, 243 Kan. 627, 762 P.2d 183 (1988), cert. denied 109 S. Ct. 2449 (1989). The facts are fully set out therein.
The Kansas Supreme Court ruled that, as a matter of law, “overwhelming” evidence established that A. Scott Anderson and E. Sylvia Anderson, the appellants’ predecessors in title, had fraudulently conveyed real estate to their closely held corporation, K-M Land Co. 243 Kan. at 638. This appeal involves the validity of K-M Land Co.’s subsequent conveyance of the same real estate to appellant Kline and Kline’s subsequent conveyance and assignment to appellant Guaranty.
In 1984, the Andersons were defendants in lawsuits brought by the City of Arkansas City, the City of Hesston, and Southwest National Bank. Shortly before trial in one of the lawsuits, the Andersons signed articles of incorporation for K-M Land Co. The Andersons were the sole stockholders and directors of K-M Land Co. They then signed and executed a warranty deed conveying their undivided V4 interest in and to certain valuable tracts of land at 119th and Antioch Streets in Johnson County to K-M Land Co.
After judgment was taken against the Andersons and others for over $2,600,000 in the Cowley County case, the Andersons, as directors of K-M Land Co., approved the sale of the land to Kline for a price of $4,000,000.
In March of 1985, the John Sims Trust was created to acquire and hold Missouri real estate for K-M Land Co. The Andersons and their children were beneficiaries of the trust. On March 14, 1985, K-M Land Co. conveyed to Kline part of the Johnson County tract previously conveyed by the Andersons to K-M Land Co. K-M Land Co. received $1,053,197 as its share of the proceeds of this sale. On the same day, Kline conveyed 200 acres of McDonald County, Missouri, land to the John Sims Trust.
The plaintiffs in this suit sought to have the conveyances from the Andersons to K-M Land Co. and another corporation set aside, annulled, and held to be void. The theory of the suit was that the conveyances were made “with the intent to hinder, delay and defraud their creditors ... in violation of K.S.A. 33-102.” The trial court found in the original suit that the conveyances were not fraudulent. In an unpublished opinion No. 60,359 filed March 3, 1988, the Court of Appeals, with Judge Elliott dissenting, agreed with the trial court. The Supreme Court reversed and found that there was “overwhelming” evidence of fraud.
After the Kansas Supreme Court ruled that the conveyances were fraudulent, the case was remanded with directions, and the court subsequently ruled on the question of whether Kline and Guaranty were bona fide purchasers for value.
Before the sale to Kline, a representative of the sellers applied for title insurance with Stewart Title Associates of Kansas City, Inc. (Stewart). Stewart issued a title insurance commitment on the real estate on September 6, 1984. The initial title insurance commitment predated the judgments against the Andersons in Cowley and Harvey counties and, therefore, did not mention those lawsuits. The first title commitment was sent to all of the sellers and to Kline.
On November 1, 1984, Stewart issued an updated title commitment. This commitment was issued a few days before the judgments had been entered against the Andersons in Cowley and Harvey counties and did not reflect those judgments.
On December 21, 1984, the Harvey County and Cowley County judgments against the Andersons were registered in Johnson County.
On or before March 5, 1985, Stewart issued its third title commitment relating to the sale of the real estate. The third title insurance commitment added the following exception to coverage:
“[T]he policy ... to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company:
“16. Prior to June 15, 1984 A. Scott Anderson and E. Sylvia Anderson owned an undivided lU interest in the subject property.
“and:
“On June 15, 1984 A. Scott Anderson and E. Sylvia Anderson conveyed their interest in the subject property to K-M Land Co.
“and:
“Subsequent to this conveyance to K-M Land Co., two transcripts of foreign judgment against A. Scott Anderson and E. Sylvia Anderson, et al., were registered in Johnson County, Kansas, said transcripts being Suit Numbers 136732 and 136733.
“and:
“Please furnish proof that the transfer of Andersons’ interest in the subject property to K-M Land Co. was a bona fide transfer for value.” (Emphasis added.)
After Stewart issued the third title insurance commitment containing the fraudulent conveyance exception, an attorney representing Stewart, Tonia Shelton, had a telephone conversation with Bruce Moore, an attorney representing the Andersons and K-M Land Co. Mr. Moore told Ms. Shelton that the transfer from the Andersons to K-M Land Co. was for estate planning purposes. Mr. Moore’s explanation regarding the purpose of the transfer was insufficient to permit Stewart’s underwriters to allow Stewart to issue a title insurance commitment without the fraudulent conveyance exception.
The record indicates that neither Kline nor Guaranty conducted any investigation of the bona fides of the Andersons’ conveyance to K-M Land Co. A. Scott Anderson, one the principals of K-M Land Co., then paid for and obtained the title insurance commitment from Security Title, which did not exclude coverage for the Andersons’ “fraudulent conveyance” to K-M Land Co.
The record supports a finding that T. J. Kline, the owner of Kline, had received a copy of the Stewart title commitment containing the fraudulent conveyance exception and knew that Stewart had requested proof that the transfer was a bona fide transfer for value.
Despite the questions involved, the sale was closed in March of 1985. Shortly thereafter, the Andersons executed affidavits stating that, because of their financial condition, they could not satisfy judgments taken against them in Cowley County and Harvey County.
The judgment lienholders, City of Arkansas City, City of Hesston, and Southwest National Bank, filed a motion for summary judgment on the issue of whether Kline and Guaranty were bona fide purchasers of K-M Land Co.’s interest in the real estate. The moving parties filed a memorandum in support of their motion for summary judgment pursuant to Rule 141 (1990 Kan. Ct. R. Annot. 110), with separately numbered paragraphs and precise references to the record as it then stood.
The response on behalf of Kline and Guaranty failed to set forth in separately numbered paragraphs a statement whether each factual contention was controverted or uncontroverted. Instead, at the hearing on the motion for summary judgment, appellants sought to present lengthy depositions of several individuals involved in the controversy, and numerous exhibits were offered. The trial court stated that the appellants’ attempt to defeat summary judgment was in a manner inconsistent with Supreme Court Rule 141 and refused to permit the appellants’ counsel to introduce the depositions.
The trial court granted the motion for summary judgment and found that Kline and Guaranty were not bona fide purchasers of the real estate. The court found that Stewart’s third title insurance commitment, which contained the fraudulent conveyance exception, placed the appellants on notice. The court further ruled that the investigation performed by an employee of Security Title was not performed by Security as an agent of Kline or Guaranty and, further, found that Kline and Guaranty’s failure to take any action to investigate the nature of the title was not consistent with their legal obligation to investigate title. Kline and Guaranty appeal.
On appeal, three issues are raised by the parties:
(1) Did the trial court err by granting summary judgment to the plaintiffs, ruling as a matter of law that Kline and Guaranty were not bona fide purchasers?
(2) Did the trial court err by rejecting the defense based upon equitable estoppel asserted by Kline and Guaranty?
(3) Did the trial court err by refusing to grant equitable protection in favor of Kline and Guaranty to the extent of the consideration paid?
SUMMARY JUDGMENT
Kline and Guaranty argue that the trial court erred by granting summary judgment in that a genuine issue of material fact remained as to whether they qualified as bona fide purchasers for value.
K.S.A. 1989 Supp. 60-256 governs motions for summary judgment and provides in part:
“The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” K.S.A. 1989 Supp. 60-256(c).
Our appellate courts have addressed the standards for granting summary judgment on numerous occasions.
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. On appeal we apply the same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied.” Bacon v. Mercy Hosp. of Ft. Scott, 243 Kan. 303, 306, 756 P.2d 416 (1988).
“When a motion for summary judgment is filed, a mere surmise or belief by the trial court, no matter how reasonably entertained, that a party cannot prevail upon a trial will not justify refusing that party his day in court.” Hunt v. Dresie, 241 Kan. 647, 653, 740 P.2d 1046 (1987).
However, not every factual dispute will preclude entry of summary judgment.
“In order to preclude summary judgment, the facts subject to dispute must be material to the issues to be determined. . . . ‘An issue of fact is not genuine unless it has legal controlling force as to a controlling issue. A feigned or.imaginary issue is not a genuine issue. A disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of a material fact.’ ” Miller v. Foulston, Siefkin, Powers & Eberhardt, 246 Kan. 450, 471-72, 790 P.2d 404 (1990) (quoting Ruebke v. Globe Communications Corp., 241 Kan. 595, 605, 738 P.2d 1246 [1987]).
In addition, Kansas Supreme Court Rule 141 governs certain procedural aspects of summary judgment motions and provides:
“No motion for summary judgment shall be heard or deemed finally submitted for decision until:
“(a) The moving party has filed with the court and served on opposing counsel a memorandum or brief setting forth concisely in separately numbered paragraphs the uncontroverted contentions of fact relied upon by said movant (with precise references to pages, lines and/or paragraphs of transcripts, depositions, interrogatories, admissions, affidavits, exhibits, or other supporting documents contained in the court file and otherwise included in the record); and
“(b) Any party opposing said motion has filed and served on the moving party within twenty-one (21) days thereafter, unless the time is extended by court order, a memorandum or brief setting forth in separately numbered paragraphs (corresponding to the numbered paragraphs of movant’s memorandum or brief) a statement whether each factual contention of movant is controverted, and if controverted, a concise summary of conflicting testimony or evidence, and any additional genuine issues of material fact which preclude summary judgment (with precise references as required in paragraph [a], supra).
“The motion may be deemed submitted by order of the court upon expiration of twenty-one (21) days, or expiration of the court ordered extended period, after filing and service on opposing counsel of the brief or memorandum of moving party notwithstanding the failure of the opposing party to comply with paragraph (b), supra. In such cases the opposing party shall be deemed to have admitted the uncontroverted contentions of fact set forth in the memorandum or brief of moving party. In determining a motion for summary judgment the judge shall state the controlling facts and the legal principles controlling the decision in accordance with Rule 165.” (1990 Kan. Ct. R. Annot. 110).
The rules concerning fraudulent conveyances and bona fide purchasers are well settled. The general rule is that a fraudulent conveyance is void. K.S.A. 33-102 provides:
“Every gift, grant or conveyance of lands, tenements, hereditaments, rents, goods or chattels, and every bond, judgment or execution, made or obtained with intent to hinder, delay or defraud creditors of their just and lawful debts or damages, or to defraud or to deceive the person or persons who shall purchase such lands, tenements, hereditaments, rents, goods or chattels, shall be deemed utterly void and of no effect.”
However, a bona fide purchaser for value will obtain good title, notwithstanding an earlier fraudulent transfer. Sparks v. Bank, 68 Kan. 148, 152, 74 Pac. 619 (1903). “ ‘One who has constructive notice of an outstanding title or right is not a bona fied purchaser.’” Federal Savings & Loan Ins. Corp. v. Urschel, 159 Kan. 674, 681, 157 P.2d 805 (1945).
“ ‘In general, the elements which comprise a fraudulent conveyance are first, an intent on the part of the grantor to hinder, delay or defraud his creditors and second, the participation of the grantee in such fraudulent scheme or such knowledge on the latter’s part of facts and circumstances as would impart knowledge of the fraud to him.’ ” Mohr v. State Bank of Stanley, 244 Kan. 555, 568, 770 P.2d 466 (1989) (quoting Credit Union of Amer. v. Myers, 234 Kan. 773, 778, 676 P.2d 99 [1984]).
In this case, the first element regarding the fraudulent intent of the Andersons was established by the earlier Kansas Supreme Court decision concerning Count I of the amended petition. City of Arkansas City v. Anderson, 243 Kan. 627, 638, 762 P.2d 183 (1988), cert. denied 109 S. Ct. 2449 (1989). The pivotal issue in this appeal is whether Kline and Guaranty had constructive notice of the fraudulent conveyance and, if so, whether they conducted a reasonable inquiry based upon the available information.
“Actual knowledge is not necessary; knowledge of circumstances sufficient to excite the suspicions of a prudent person and put him upon inquiry is as a general proposition equivalent to knowledge of the facts which a diligent inquiry would have disclosed.” Kuhn v. Wise, 90 Kan. 583, 586, 135 Pac. 571 (1913). See Vickers v. Buck, 60 Kan. 598, 602, 57 Pac. 517 (1899). The Kansas Supreme Court has also held:
“Actual notice may be either express or implied; that is, it may consist of knowledge actually brought personally home, or it may consist of knowledge of facts so informing that a reasonably cautious person would be led by them to the ultimate fact. . . . Actual notice is implied only when the known facts are sufficiently specific to impose the duty to investigate further, and when such facts furnish a natural clue to the ultimate fact.” Faris v. Finnup, 84 Kan. 122, 124, 113 Pac. 407 (1911).
See Penrose v. Cooper, 88 Kan. 210, 214-15, 128 Pac. 362 (1912).
Here, the plaintiffs’ memorandum supporting the summary judgment motion contained forty numbered paragraphs as the “Statement of Uncontroverted Facts.” The response memorandum of Kline and Guaranty challenges only three of these paragraphs: 13(e), 38, and 39. The trial court’s decision indicates the other paragraphs in the plaintiffs’ memorandum “are accepted as true.” The trial’court also accepted as uncontroverted facts several portions of the T.J. Kline and Guaranty Service response memorandum. The remainder of the memorandum’s “Additional Issues of Material Fact” were “rejected because they fail to comply with Supreme Court Rule 141.” The trial court also noted “defendant’s motion commingles facts, argument and law which is contrary to Rule 141.”
The case law regarding Rule 141 supports the trial court’s treatment of the memoranda submitted by the parties. See Hammig v. Ford, 246 Kan. 70, 75, 785 P.2d 977 (1990); Danes v. St. David’s Episcopal Church, 242 Kan. 822, 830, 752 P.2d 653 (1988); Ruebke v. Globe Communications Corp., 241 Kan. 595, 604, 738 P.2d 1246 (1987); Knight v. Myers, 12 Kan. App. 2d 469, 476, 748 P.2d 896 (1988).
The uncontroverted paragraphs of the plaintiffs’ memorandum recite the scenario of the various title insurance commitments from Stewart, including the third commitment in March of 1985 which contained the request for proof that the transfer of the Andersons’ interest in the property which was the subject of the sale to K-M Land Co. was a bona fide transfer for value.
The statement of uncontroverted facts indicates that Guaranty and Kline each received a copy of the document from Stewart. The court also found, and it was uncontroverted, that Stewart did not accept the explanation of Bruce Moore, an attorney for the Andersons and K-M Land Co., who explained that the conveyance “was done in good faith for the purposes of estate planning.”
Also, the court found that, after receiving the notice contained in the third title commitment from Stewart, the Andersons arranged to have Security Title insure around the problem.
In this case, the title insurance commitment from Stewart provided notice to Kline and Guaranty of a potential title problem. The document informed them of the conveyance and the foreign judgments on file. Stewart requested proof that the transaction was a bona fide transfer for value. These facts are sufficient “to excite the suspicions of a prudent person.” Kuhn v. Wise, 90 Kan. at 586.
Kline and Guaranty argue that Terry Anderson, an employee of Security Title, conducted a reasonable inquiry on their behalf. They assert that the trial court erred by ruling that Terry Anderson could not be considered their agent.
The uncontroverted facts indicate that Terry Anderson did not conduct a diligent inquiry. Terry Anderson’s affidavit states that he examined the foreign judgments filed in Johnson County and spoke with A. Scott Anderson, the Andersons’ attorney, and the Andersons’ accountant. Terry Anderson was not concerned about the foreign judgments because “neither judgment constituted a lien or encumbrance against the subject property.” Terry Anderson relied upon A. Scott Anderson’s assurance that Dr. Her bert Ketterman could or would satisfy the judgments. Terry Anderson failed to pursue several potential avenues of inquiry. He did not attempt to determine the value of any of the Andersons’ other assets, he did not examine the information on file with the Secretary of State regarding K-M Land Co., nor did he seek to examine any of the corporate records of K-M Land Co. Terry Anderson did not contact the judgment creditors or the Kettermans to determine whether the judgments had been or would be satisfied by the assets of the Kettermans. Most importantly, there was no attempt to verify that K-M Land Co. actually gave valuable consideration in exchange for the property.
We conclude that the trial court did not err by granting summary judgment to the plaintiffs. Kline and Guaranty failed to comply with Rule 141 and conceded virtually all of the plaintiffs’ statement of uncontroverted facts. The uncontroverted facts indicate that Kline and Guaranty were notified that the conveyance from the Andersons to K-M Land Co. was suspect. A reasonably diligent inquiry would have disclosed the nature of this transfer, which the Kansas Supreme Court later determined to be fraudulent, or at the very least would “excite the suspicions of a prudent person.”
EQUITABLE ESTOPPEL
Kline and Guaranty contend the trial court erred by refusing to apply the doctrine of equitable estoppel, or the “two innocent persons” principle in their favor. They argue the plaintiffs could have, but failed to, file a notice of lis pendens pursuant to K.S.A. 60-2203a(a) and, thus, prevented any subsequent conveyance by the Andersons.
The trial court rejected the argument put forward by Kline and Guaranty which simply stated is that “[w]here one of two innocent persons must suffer, that one should bear the loss whose conduct or act placed it in the power of a third person to impose upon or deceive another.” Lumber and Grain Co. v. Eaves, 114 Kan. 576, 581, 220 Pac. 512 (1923).
Kline and Guaranty cite the “two innocent persons” principle defined in 28 Am. Jur. 2d, Estoppel and Waiver § 62, and note the doctrine has been applied in a number of Kansas cases. However, the same section of this treatise also contains the following language.
“This principle does not mean, however, that one is to be held estopped when he innocently, for an honest purpose and with reasonable care, furnishes to a third party the means by which he perpetrates a fraud from which he who provides the means derives no benefit. If no fault or negligence is imputable to either party, the loss must remain where the course of business has placed it, and as between the two innocent parties, no cause of action arises thereon.” 28 Am. Jur. 2d, Estoppel and Waiver § 62, p. 685.
We agree that compliance with the lis pendens statute is permissive, not mandatory. K.S.A. 60-2203a(a). We conclude that the plaintiffs had no duty to file such a notice. Since the plaintiffs had no duty to act, their inaction cannot be characterized as negligent.
While Kline and Guaranty complain that the plaintiffs did not diligently pursue their rights, the failure to investigate thoroughly the nature of the earlier conveyance illustrates a lack of vigilance by Kline and Guaranty. Plaintiffs did not provide the Andersons with the means to inflict a loss upon Kline and Guaranty, The plaintiffs were not obligated to file a notice of lis pendens and, thus, should not be subject to estoppel by their silence or inaction. The record does not support application of the two innocent persons doctrine in favor of Kline and Guaranty.
REFUSAL TO GRANT EQUITABLE PROTECTION IN FAVOR OF KLINE AND GUARANTY
Finally, Kline and Guaranty argue that the trial court erred by failing to grant them equitable protection to the extent of the consideration paid, citing 37 Am. Jur. 2d, Fraudulent Conveyances §§ 120 and 122, and certain Kansas appellate decisions. They contend a purchaser with only constructive notice of fraud is entitled to such equitable relief.
Kline and Guaranty cite the following language from 37 Am. Jur. 2d:
“Where, however, the grantee in a fraudulent conveyance or transfer is not guilty of actual fraud, but is chargeable with knowledge of facts which warrant the law in holding him guilty of constructive fraud, the authorities generally hold that he is entitled to protection to the extent of the consideration paid by him.” 37 Am. Jur. 2d, Fraudulent Conveyances § 120, p. 800.
Kline and Guaranty argue that, under this proposition, they are entitled to have the amount they paid protected by the court.
In our view, this argument fails for several reasons: (1) There is no finding or contention that Kline or Guaranty are guilty of constructive fraud. (2) Kline and Guaranty have confused the doctrine of constructive notice with the doctrine of constructive fraud. They contend a bona fide purchaser will take good title, whether the earlier transaction was actually or merely constructively fraudulent. However, when the fraud is constructive only, equity protects a fraudulent grantee to the extent of the consideration paid. See Garden City Nat’l Bank v. Gann, 121 Kan. 159, 161, 246 Pac. 971 (1926).
If the position of Kline and Guaranty were to be accepted, a person with constructive notice would be protected to the extent of the consideration paid. Such protection for a person with constructive notice would raise that individual’s status to that of a bona fide purchaser for value.
Two older Kansas cases have already addressed the point raised by Kline and Guaranty. Neither supports the position of Kline and Guaranty.
In New v. Smith, 94 Kan. 6, 145 Pac. 880 (1915), a grantee with constructive notice was held not to be entitled to protection for the consideration paid.
In Bush v. Collins, 35 Kan. 535, 539, 11 Pac. 425 (1886), a businessman purchased the entire inventory of a wholesale store by making a down payment and executing a note due in 60 days for the balance of the purchase price. The buyer’s agent immediately proceeded to arrange for shipment of the goods to another area, and shipped some of them. The same day the goods were shipped, attachments of the creditors of the store were levied upon the inventory. The buyer contacted the owner of the store and arranged to have a third party hold the note until the lawsuit was decided. Unfortunately for the buyer, he also paid some additional sums to the seller. The Kansas Supreme Court held that the buyer was only protected as to the amount of the down payment, because later payments by the buyer were made with actual notice of the fraud..
We agree with the rationale of these decisions and conclude, as did the Kansas Supreme Court in New and Bush, that only a bona fide purchaser is entitled to protection for consideration paid before receiving notice of the fraud. The facts in this casé indicate that the purchasers had constructive notice, as already concluded by the trial court and this court, and, therefore, the position of the appellants on this issue must fail. The case law simply does not support a conclusion that persons with constructive notice are entitled to such protection.
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Elliott, J.:
In a case in which Forrest R. “Woody” Edgington alleged that the Overland Park City Council improperly rejected his nomination to fill a vacant seat on the council, Edgington appeals the trial court’s granting of the defendants’ motions to dismiss and for summary judgment.
We affirm.
Factual Statement
Edgington has been active in Overland Park politics since the 1970s. He was appointed to the city council in 1972 and elected to the council in 1973 and 1977. He was defeated in bids for mayor in 1981 and a council seat in 1985. In March 1987, plaintiff was defeated by incumbent council member Andy Happer in the third ward Republican primary.
Shortly after that primary, the council passed Charter Ordinance 40, around which this appeal revolves. Charter Ordinance 34 provided that vacancies on the council would be filled by a recommendation from the precinct committee of the departing member’s political party. Ordinance 40 amended Ordinance 34, providing the council with the power to reject the precinct committee’s nominee, following which rejection the precinct committee must continue nominating candidates until the vacancy is filled.
Plaintiff alleges , the council members, in passing Charter Ordinance 40, conspired to keep him off the council because he opposed their positions on issues and was not perceived as a “team player.”
Council member Happer died in office and the third ward Republican committee nominated Edgington to fill the vacancy. The council unanimously rejected the nomination and asked for the recommendation of “another person” pursuant to the ordinance. Instead, the committee recommended plaintiff two more times. The council refused to act on the nominations.
Edgington filed suit in four counts, alleging that:
(1) Charter Ordinance 40 was improperly enacted and constitutionally defective;
(2) the council acted arbitrarily and capriciously in rejecting plaintiff’s nomination;
(3) the council deprived plaintiff of due process and equal protection in violation of 42 U.S.C. § 1983 (1988), and;
(4) the members of the council conspired to reject plaintiffs appointment in violation of 42 U.S.C. § 1985 (1988).
The trial court granted summary judgment in defendants’ favor on counts 1 and 4 and granted defendants’ motion to dismiss with respect to counts 2 and 3.
Preliminary Matters
A. Scope of Review
While the trial court decided the issues on both a summary judgment motion and a motion to dismiss, the facts considered by the court were undisputed and the issues presented were questions of law. Accordingly, our review is plenary or 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).
B. Standing
Amicus curiae League of Kansas Municipalities urges plaintiff lacks standing to challenge the validity of Charter Ordinance 40. Patently, a private individual cannot attack the legality of the organization or reorganization of a city. Babcock v. City of Kansas City, 197 Kan. 610, 611, 419 P.2d 882 (1966).
While a private citizen cannot attack the very existence of a city, the law does not preclude an attack on the internal organization of the city’s government. Thus, an individual may have standing if he or she has a special interest other than that of the general public. See Sawyer v. Chapman, 240 Kan. 409, 410-11, 729 P.2d 1220 (1986) (individual lacks standing if he/she “has not suffered damages different in kind from that of the public generally”); Fransham v. McDowell, 202 Kan. 604, 610-11, 451 P.2d 131 (1969).
In the present case, Charter Ordinance 40 has prevented Edington from assuming a seat on the city council. He has thus suffered alleged damages different from that of the general public.
Accordingly, plaintiff has standing to challenge the validity of the ordinance.
C. Mootness
The unexpired term which plaintiff sought to fill has now expired. In a sense, this case is moot. Nonetheless, we shall address the merits of the appeal, since the issues presented with respect to the charter ordinance are of statewide interest and importance. See Smith v. Miller, 213 Kan. 1, 5, 514 P.2d 377 (1973) (although school term for which plaintiff was expelled ended prior to argument, appeal nonetheless entertained where real controversy had existed and case involved questions of statewide interest and importance).
D. The Summary Judgment Problems With Respect To Counts 1 and 4
Plaintiff argues the trial court erroneously granted summary judgment because discovery was not complete. The trial court granted summary judgment on counts 1 (constitutional validity of the ordinance) and 4 (the 42 U.S.C. § 1985 claim). The trial court indicated that both claims could have been decided by either a motion to dismiss or on a motion for judgment on the pleadings, since only questions of law were presented.
Because defendants wished to argue the doctrine of practical construction (which required exhibits of charter ordinance amendments from other cities) the summary judgment format was properly utilized.
While summary judgment motions are normally denied where discovery is not complete, they are properly granted on the pleadings where only a question of law is presented. Spears v. Kansas City Power & Light Co., 203 Kan. 520, 528, 455 P.2d 496 (1969).
Under the peculiar facts and circumstances surrounding this case, the trial court correctly considered summary adjudication with respect to counts 1 and 4.
Ordinances, Statutes, and Constitutional Provisions
Article 12, § 5 of the Kansas Constitution grants cities the power of home rule. Section 5(c)(1) allows a city to exempt itself by charter ordinance from legislation not applicable uniformly to all cities.
Section 5(c)(2) provides that a charter ordinance shall be so titled, shall designate specifically the legislative enactment made inapplicable to the city, and shall require a super majority vote of two-thirds of the members of the City’s governing body. Section 5(c)(3) provides for a 60-day delay in the charter ordinance’s becoming effective, during which voters may petition for a referendum.
Finally, § 5(c)(4) provides that a charter ordinance may be repealed or amended only by another charter ordinance.
Overland Park is a first-dass city employing a mayor-council-city manager form of government pursuant to K.S.A. 12-1036a et seq. K.S.A. 12-1036d states that a vacancy on the city council shall be filled by the council until the next regular election.
In 1984, the city council, pursuant to the home rule amendment to the constitution, passed Charter Ordinance 34. The ordinance specifically made K.S.A. 12-1036d inapplicable to the city. Section 9(b) of the ordinance provided that a vacancy was to be filled by recommendation from the precinct committee of the political party represented by the council member whose office was vacated. That recommended person “shall serve in such office until the next regular City election.”
In 1987, shortly after the Happer/Edgington primary, the city council adopted Charter Ordinance 40 entitled, “A Charter Ordinance Ahíending and Repealing Existing Séction 9 of Charter Ordinance No. Thirty-Four Relating to Vacancies on the Council and Providing a Method for Filling Such Vacancies.”
Section 1(b) of the new ordinance provides that in the event of a vacancy, the precinct committee shall recommend a replacement to the council. The council may either appoint the recommended replacement or may reject the recommended replacement. If the recommendation is rejected, the precinct committee is required to recommend “another person” for council consideration.
Charter Ordinance 40 did not specifically state that K.S.A. 12-1036d was to be inapplicable to the city.
The Constitutionality of Charter Ordinance 40
Plaintiff argues that the constitutional mandate is clear in requiring a charter ordinance to specifically designate the statute from which the city is exempting itself; since Charter Ordinance 40 did not make that specific exemption statement, it is invalid. It follows, urges Edgington, that Charter Ordinance 34 controls and the council lacks the power to reject his recommendation to fill the vacant Happer seat.
We find plaintiff’s arguments overly simplistic. The home rule provisions do not specifically require an amending charter ordinance to again state the statute which is inapplicable to the city. Pragmatically, such a requirement would be redundant since the city has already exempted itself from the statute in question. Charter Ordinance 40 amended and repealed only section 9 of Charter Ordinance 34. Section 1 of Charter Ordinance 34 exempting the city from the statute remains in place.
It is, however, entirely reasonable to require that a charter ordinance be amended only by another charter ordinance, in order to preserve the super majority and referendum period protective requirements.
Defendants rely on Gramling v. City of Wauwatosa, 44 Wis. 2d 634, 642-44, 171 N.W.2d 897 (1969), for the proposition that an amending charter ordinance need not specify the statute which is inapplicable to the city. Defendants argue the case is controlling because the Kansas home rule amendment was based on the Wisconsin home rule statute. See Crummett, City Home Rule in Kansas, 9 Washburn L.J. 1, 3 (1969); Martin, Home Rule For Kansas Cities, 10 Kan. L. Rev. 501 (1962); cf. Dyson, Ridding Home Rule of the Local Affairs Problem, 12 Kan. L. Rev. 367, 378, n.73 (1964).
Defendants’ argument is slightly flawed. It is true that when Kansas adopts a statutory or constitutional provision from another state, cases on the book of that state at the time of the Kansas adoption are considered as written into our provision. See Woodring v. Hall, 200 Kan. 597, 601, 438 P.2d 135 (1968); Jacobson, The Enlargment of Jurisdiction Over Unlicensed Foreign Corporations Committing Torts in Kansas: New Code 60-308, 12 Kan. L. Rev. 49 (1963).
However, the Gramling decision was filed eight years after the 1961 effective date of our home rule amendment. Further, the Wisconsin statute specifically provided that amending charter ordinances need refer only to that portion of the charter ordinance being amended. See Wis. Stat. § 66.01(2)(b) (1989-90).
Notwithstanding the filing date of Gramling, the basic rationale of Gramling is valid; once a charter ordinance is adopted, the provisions become a part of the city’s charter and further reference to an inapplicable statute is unnecessary.
Defendants also urge the doctrine of practical construction, which the Supreme Court has utilized to give deference to longstanding state interpretation of constitutional provisions. See, e.g., Smiley v. Holm, 285 U.S. 355, 369, 76 L. Ed 795, 52 S. Ct. 397 (1932). See also Leek v. Theis, 217 Kan. 784, 794, 539 P.2d 304 (1975) (history of executive and legislative approval of a statute leads to presumption of validity).
Based on exhibits presented, the trial court found that “practically all” amending charter ordinances adopted by Kansas cities do not redesignate the parts of legislative enactments previously made inapplicable to the city.
If there is any reasonable way to construe a statute as constitutionally valid, it should be done. City of Baxter Springs v. Bryant, 226 Kan. 383, 385, 598 P.2d 1051 (1979). Further, the “presumption of good intention must be accorded the city in passing the ordinance.” Unless clearly void, the ordinance is to be upheld. Desser v. City of Wichita, 96 Kan. 820, 821, 153 Pac. 1194 (1915).
Finally, the authority granted by home rule is to be liberally construed in order to give cities the largest measure of self-government. Kan. Const. art. 12, § 5(d).
The trial court properly ruled that Charter Ordinance 40 passes constitutional muster.
Plaintiffs Claims Under 42 U.S.C. § 1985
42 U.S.C. § 1985 provides a claim for relief against conspiracies formed to deprive a person or class of persons of the equal protection of the law. In Griffin v. Breckenridge, 403 U.S. 88, 102, 29 L. Ed. 2d 338, 91 S. Ct. 1790 (1971), the court held that the statute means “there must be some racial, or perhaps otherwise class-based invidiously discriminatory animus behind the conspirators’ action.”
Plaintiff contends defendants conspired to deprive him of his right to a seat on the city council, alleging that § 1985 protects victims of alleged nonracial, politically motivated conspiracies. After Griffin, some federal circuits did hold that § 1985 extends to nonracial political conspiracies. E.g., Keating v. Carey, 706 F.2d 377 (2d Cir. 1983). But, language in United Brotherhood of Carpenters & Joiners, Local 610 v. Scott, 463 U.S. 825, 77 L. Ed. 2d 1049, 103 S. Ct. 3352 (1983), has called those cases into serious question.
The Scott Court recognized that § 1985 was enacted to protect blacks and their contemporary supporters (mainly Lincoln Republicans) in the post-Civil War South. The Court then said:
“Although we have examined with some care the legislative history that has been marshaled in support of the position that Congress meant to forbid wholly nonracial, but politically motivated conspiracies, we find difficult the question whether § 1985(3) provided a remedy for every concerted effort by one political group to nullify the influence of or do other injury to a competing group by use of otherwise unlawful means. To accede to that view would go far toward making the federal courts, by virtue of § 1985(3), the monitors of campaign tactics in both state and federal elections, a role the courts should not be quick to assume.” 463 U.S. at 836.
Since Scott, courts have placed heavy reliance on the quoted dicta and have held that § 1985 does not apply to political conspiracies unmotivated by racial bias. We agree. See Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986), cert. denied 479 U.S. 1054 (1987); Harrison v. KVAT Food Management, Inc., 766 F.2d 155, 161 (4th Cir. 1985); Grimes v. Smith, 776 F.2d 1359 (7th Cir. 1985); Brown v. Reardon, 770 F.2d 896 (10th Cir. 1985). The Second and Sixth Circuits have also questioned their prior decisions. See Gleason v. McBride, 869 F.2d 688 (2d Cir. 1989); Conklin v. Lovely, 834 F.2d 543 (6th Cir. 1987).
The trial court correctly ruled that nonracial, political conspiracies are beyond the ambit of 42 U.S.C. § 1985.
Protected Classes
Plaintiffs action also fails because he has not demonstrated membership in a class which suffers from invidious discrimination. Those discriminated against must be victims not because of any personal malice the conspirators have toward them, but because of their membership in or affiliation with a particular protected class. Gleason v. McBride, 869 F.2d at 695.
Edgington claims membership in the following allegedly protected classes:
1. Supporters of Woody Edgington for the Ward 3 position on the city council;
2. Republicans;
3. Individuals who have previously run for city council and have been defeated.
We are unable to hold that Republicans are a minority historically subjected to invidious discrimination in Johnson County, and, in any case, members of the modern Republican party are simply not a class protected by § 1985. Cf. Harrison v. KVAT Food Management, Inc., 766 F.2d at 161 (Lincoln Republicans protected because they were involved in post-Civil War struggle for human rights).
Individuals who previously ran for the city council cannot be a class subject to discrimination. Plaintiff claims several have actually been appointed to seats on the council, and in fact bases his equal protection argument on this allegation.
Supporters of Woody Edgington could be considered a protected class if members were regularly persecuted because of their active support for plaintiff. But Edgington cannot be a member of that group because he is the candidate himself. Any discrimination arising due to his political views would be directed at him individually. Gleason, 869 F.2d at 695 (candidate who claimed he was discriminated against because he was political opponent of defendants and was vocal in his opposition to their policies not protected by § 1985).
The trial court properly granted judgment in favor of defendants on this claim.
The Nonjusticiable Political Question Issue
The trial court granted defendants’ motion to dismiss as to counts 2 and 3, ruling in part that the issues raised were nonjusticiable political questions.
The nonjusticiability of a political question stems from the doctrine of separation of powers. Political questions commonly arise where there is a “textually demonstrable constitutional commitment of the issue to a coordinate political department.” Baker v. Carr, 369 U.S. 186, 210, 217, 7 L. Ed. 2d 663, 82 S. Ct. 691 (1962); see also Van Sickle v. Shanahan, 212 Kan. 426, 438, 511 P.2d 223 (1973) (adopting Baker v. Carr standards for political questions).
Under our constitution, the legislature has the power to determine the manner of selection of all public officers unless otherwise stated in the constitution. Leek v. Theis, 217 Kan. at 813-14. The home rule amendment implicitly delegates to the cities the authority to determine the manner of selection of city officers. This is a “textually demonstrable” commitment of the issue to a coordinate political department. The city council exercised its authority by passing Charter Ordinance 40; therefore, the exercise of this authority is a nonjusticiable political question.
Plaintiff, however, argues that defendants’ alleged denial of his right to equal protection constitutes a justiciable claim. The only way we could determine if plaintiff was denied equal protection would be to create the criteria for a seat on the city council and then determine if those criteria have been uniformly applied. That determination is clearly beyond the power and authority of this court. See Baker v. Carr, 369 U.S. at 227.
The trial court properly ruled that counts 2 and 3 present nonjusticiable political questions.
Did Plaintiff Have a Due Process or Equal Protection Right to a Seat on the City CouncilP
This question relates to plaintiffs claim under 42 U.S.C. § 1983. Plaintiff claims he was nominated to fill the vacancy on the council and defendants rejected him because he had lost two previous elections. As a result, goes plaintiffs argument, defendants violated § 1983.
The trial court ruled plaintiff failed to state a claim because he had no due process or equal protection rights to be seated on the council. The trial court correctly ruled on this issue.
To state a § 1983 claim, plaintiff must establish that defendants acted under color of state law to deprive him or her of a federal right. See Watson v. City of Kansas City, Kan., 857 F.2d 690, 694 (10th Cir. 1988). In the present case, everyone agrees defendants acted under color of state law, but even if everything plaintiff alleges were true, he was not deprived of a federal right.
To prevail on this claim, plaintiff must have been deprived of a definite liberty or property interest. Under Charter Ordinance 40, the council was free to reject plaintiffs nomination; therefore, Edgington had nothing more than a mere expectancy of gaining a seat on the council. This does not elevate itself to a protected property or liberty interest. See Leek v. Theis, 217 Kan. at 811 (unilateral expectation of a benefit is not a property interest). Cf. Lynch v. Chase, 55 Kan. 367, Syl. ¶ 1, 40 Pac. 666 (1895) (incumbent has no property or vested interest in public office).
An equal protection claim requires an element of intentional or purposeful discrimination between persons or classes. In the present case, plaintiff alleges defendants’ actions were arbitrary and capricious and in violation of state law; but he does not allege his rejection was affected by or related to the appointment of any other nominee. Plaintiffs allegations are simply insufficient to sustain an equal protection claim. See Snowden v. Hughes, 321 U.S. 1, 7-10, 88 L. Ed. 497, 64 S. Ct. 397 (1944).
The trial court properly ruled that plaintiff failed to state a claim under § 1983.
The Immunity Claim of Defendants
Defendants are clothed with absolute immunity for their actions if voting to reject plaintiffs nomination was a legislative, as opposed to an administrative, act. See Lake Country Estates v. Tahoe Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979).
Granted, the line between legislative and administrative acts is sometimes a bit fuzzy. While hiring and firing are administrative acts, some cases indicate that appointing to a public office is a legislative function. See Leek v. Theis, 217 Kan. at 808 (appointment to office is executive function; confirmation of appointment is legislative function). Since defendants were acting to confirm or reject an appointment to the city council, their act was legislative in nature.
Even if defendants’ conduct was not a legislative act, they are entitled to a qualified immunity. Government officers are not liable for civil damages unless their actions violate clearly established rights of which a reasonable person would have known. Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982).
Mere knowledge of an abstract constitutional right is not enough; the contours of the right must be sufficiently clear that a reasonable official would understand that he/she is violating that right. Anderson v. Creighton, 483 U.S. 635, 639-40, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).
Here, defendants enacted Charter Ordinance 40 in accordance with widely accepted procedures and rejected plaintiffs nomination pursuant to the clear terms of that ordinance. There is simply nothing in the terms of the ordinance or defendants’ stated reason for rejecting plaintiff which could lead a reasonable official to realize Edgington’s rights to due process and equal protection were being violated, if indeed they were.
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Rulon, J.:
Melvin L. Wilson, defendant, appeals from a decision of the district court dismissing his appeal from a magistrate judge’s ruling finding him guilty on two traffic counts. We affirm.
Wilson contends the district court erred in determining that the magistrate’s letter ruling dated August 8, 1989, and filed August 10, 1989, constituted a “verdict or finding of guilty” as those terms are used in either K.S.A. 22-3501 or K.S.A. 22-3609a. He contends the judgment in this case was rendered on the date of sentencing, August . 31, 1989; that his motion for new trial filed September 7, 1989, was timely filed within ten days of August 31, 1989, as required by K.S.A. 22-3501(1); and that his notice of appeal from the magistrate’s judgment was timely filed within ten days of the denial of his motion for new trial, as required by K.S.A. 22-3609a. We disagree.
Resolution of the issue in this case obviously turns on the proper interpretation of jurisdictional statutes. Statutory interpretation is a question of law, and this court’s function is to interpret a statute to give it the effect intended by the legislature. Director of Taxation v. Kansas Krude Oil Reclaiming Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984); White v. VinZant, 13 Kan. App. 2d 467, 471, 773 P.2d 1169 (1989). This court may construe and determine the legal effect of a statute regardless of the construction adopted by the trial court. Palmer v. First Nat’l Bank of Kingman, 10 Kan. App. 2d 84, 86, 692 P.2d 386 (1984).
Appeals from the judgment of a district magistrate judge are governed by K.S.A. 22-3609a, the relevant portion of which provides:
“(1) A defendant shall have the right to appeal from any judgment of a district magistrate judge. . . . The appeal shall stay all further proceedings upon the judgment appealed from.
“(2) An appeal to a district judge shall be taken by filing a notice of appeal with the clerk of the court. No appeal shall be taken more than 10 days after the date of the judgment appealed from." (Emphasis added.)
Also relevant to this case is the statute governing motions for a new trial, K.S.A. 22-3501, which provides:
“(1) The court on motion of a defendant may grant a new trial to him if required in the interest of justice. ... A motion for a new trial based on the ground of newly discovered evidence may be made within two years after final judgment, but if an appeal is pending the court may grant the motion only on remand of the case. A motion for a new trial based on any other grounds shall be made within 10 days after the verdict or finding of guilty or within such further time as the court may fix during the 10-day period.
“(2) A motion for a new trial shall be heard and determined by the court within 45 days from the date it is made.” (Emphasis added.)
Generally, the filing of a timely notice of appeal is jurisdictional and, if the record discloses a lack of jurisdiction, the appellate court has a duty to dismiss the appeal. State v. Moses, 227 Kan. 400, 404, 607 P.2d 477 (1980). In this case, two questions must be answered in determining whether Wilson’s notice of appeal to the district court was timely filed: (1) When was the magistrate’s judgment rendered, and (2) did Wilson’s September 7, 1989, motion for new trial extend the time in which to file a notice of appeal?
THE MAGISTRATE’S JUDGMENT
Generally, an order finding a defendant guilty is not an appealable judgment until sentence is imposed or the imposition of sentence is suspended. Roberts v. State, 197 Kan. 687, 689, 421 P.2d 48 (1966); State v. Woodbury, 133 Kan. 1, 298 Pac. 794 (1931); State v. Rucas, 12 Kan. App. 2d 68, 72, 734 P.2d 673 (1987); City of Topeka v. Martin, 3 Kan. App. 2d 105, 590 P.2d 106 (1979). The judgment in a criminal case becomes effective, and the time period for appeal starts running, when the defendant’s sentence is pronounced from the bench. Moses, 227 Kan. at 402-03.
Wilson principally relies upon two statutes in asserting that August 31, 1989, was the actual date of the judgment in this case. He cites K.S.A. 22-3405(2), which requires the defendant or his counsel to be present at every stage of a traffic infraction and misdemeanor case, and K.S.A. 22-3424(1), which requires a judgment to be rendered and sentence imposed in open court. He argues that Magistrate Blake’s August 8, 1989, letter did not constitute “open court” and, because neither he nor his counsel appeared on August 8, 1989, the actual date of the judgment must have been August 31, 1989.
Wilson is correct in his assertion that Magistrate Blake’s August 8 letter ruling does not constitute a judgment. Although the letter ostensibly was a “finding of guilty” within the meaning of K.S.A. 22-3501 which governs motions for a new trial, Magistrate Blake’s finding of guilty was not announced in open court, nor was Wilson or his counsel present when the finding was announced. The judgment of the magistrate must be announced in open court, and either the defendant or the defendant’s counsel must be present. K.S.A. 22-3424(1); K.S.A. 22-3405(2). Thus, the August 8, 1989, letter cannot be considered the judgment of the magistrate within the meaning of K.S.A. 22-3609a.
In this case, the district court did not specify whether the time for filing a timely notice of appeal began to run on August 8, 1989, or August 31, 1989. However, because the notice of appeal had to have been filed within ten days of the judgment and it was not filed until February 26, 1990, no such determination was needed as the notice was clearly untimely. While judgment in this case was not rendered until August 31, 1989, the later judgment date is of no avail to Wilson in this appeal. Judgment in this case was rendered on the date of Wilson’s sentencing, August 31, 1989, and the notice of appeal must have been filed by September 14, 1989, to be considered timely. See K.S.A. 1990 Supp. 60-206(a). His notice of appeal to the district court, filed February 26, 1990, was untimely unless some exception to the ten-day time limit applies.
The appellate courts have generally recognized two exceptions to the time limits in criminal cases. In State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), the Kansas Supreme Court recognized an exception when an indigent defendant (1) is not informed of his or her rights to appeal, (2) is not furnished an attorney to exercise those rights, or (3) was furnished an attorney who failed to perfect and complete the appeal. 230 Kan. at 736. Nothing in the record supports application of the Ortiz exception in this case.
The second exception is illustrated by State v. Myers, 10 Kan. App. 2d 266, 697 P.2d 879 (1985). The Myers exception applies when the defendant has filed a timely motion to modify the sentence imposed, but the district court does not rule on the motion within the 120-day period provided in K.S.A. 1990 Supp. 21-4603(4). In such a case, the defendant must file a notice of appeal within ten days of the filing of the journal entry deciding the motion to modify sentence. 10 Kan. App. 2d at 270-71. Wilson’s argument that his notice of appeal was timely filed because he filed it within ten days of Magistrate Goering’s decision denying his motion for new trial appears to be based on an analogy to this court’s holding in Myers, although the case is not cited in his brief.
THE MOTION FOR A NEW TRIAL
The Myers exception does not apply in this case because K.S.A. 22-3609a, rather than K.S.A. 22-3608(1), governs the time in which to file a notice of appeal. The former statute requires a notice of appeal to be filed within 10 days of the judgment appealed from, while the latter requires a notice of appeal to be filed “not later than 10 days after the expiration of the district court’s power to modify the sentence.” The Myers exception is based on the unique language of K.S.A. 22-3608(1) and the Kansas Supreme Court’s holding in State ex rel. Owens v. Hodge, 230 Kan. 804, 641 P.2d 399 (1982), which determined that a district court retains jurisdiction to modify a sentence beyond the 120- day period, provided the defendant has filed a timely motion to modify sentence. Hodge, 230 Kan. at 814; Myers, 10 Kan. App. 2d at 269-70. In this case, the district court never acquired the power to modify Wilson’s sentence, and the Myers exception cannot be applied by analogy to Wilson’s motion for new trial filed in magistrate court.
Under K.S.A. 1990 Supp. 20-302b, a district magistrate judge has jurisdiction to conduct trials in misdemeanor and traffic infraction cases. In such cases, the nature of the district court’s jurisdiction is appellate rather than original. K.S.A. 22-3609a(1). While the district court’s appellate review is de novo under K.S.A. 22-3610(a), the filing of a timely notice of appeal is necessary to invoke the district court’s jurisdiction. Wilson’s untimely notice of appeal did not confer jurisdiction on the district court.
Neither K.S.A. 22-3609a nor the statute governing a motion for new trial in a criminal case, K.S.A. 22-3501, extend the time in which to file a notice of appeal where the defendant elects to file such a motion after judgment is entered. These statutes are unlike the statute governing post-trial motions in a civil case, K.S.A. 1990 Supp. 60-2103(a), which specifically provides that the time for filing a notice of appeal is suspended while a party seeks relief from a judgment by filing timely post-trial motions.
If we are to reverse the district court, we must decide to engage in judicial blacksmithing. We must expand the provisions of K.S.A. 22-3501 and K.S.A. 22-3609a to provide that the time for filing a notice of appeal is stayed while a defendant seeks relief from a judgment by filing a timely motion for a new trial. A strong argument can be made that the orderly administration of criminal justice requires that, until the trial court has had a full opportunity to correct trial errors by ruling on a pending motion for a new trial, the jurisdiction of the appellate courts of this State should not be invoked. However, we decline the invitation to so hold. The legislative intent of K.S.A. 22-3609a seemingly is that the remedy for a criminal defendant aggrieved by a judgment of a district magistrate judge is to appeal to the district judge and not to seek a new trial. The statutory provisions governing the filing of a notice of appeal are determined by the legislature, not the judiciary. If the legislature intended that a motion for a new trial filed after the judgment is entered suspends the time for filing a notice of appeal pursuant to K.S.A. 22-3609a, then the legislature must speak through appropriate legislation.
In order to perfect his appeal, Wilson was required by statute to file a notice of appeal to the district court within ten days of the magistrate’s judgment. He did not do so. There is no statutory or case law authority for his argument that his motion for new trial extended the time in which he was allowed to file a notice of appeal from the magistrate’s judgment. Wilson’s failure to take his appeal within the time prescribed by statute deprived the district court of jurisdiction to entertain his appeal. State v. Smith, 223 Kan. 47, 48, 574 P.2d 161 (1977). Therefore, the district court properly dismissed Wilson’s appeal.
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McAnany, J.:
Nayssa Davila, a lifetime resident of Texas, had been adopted by her stepfather at age 7 and her name was changed to Nyssa Carlson. At some point following her adoption the name on her social security account was changed from Nayssa Davila to Nyssa Nicole Carlson.
Maria Meza arrived in this country from Mexico in 1998 at age 15. She lived with her grandparents in Pittsburg. She purchased a social security card and a Kansas ID card in the name of Nayssa Davila from a man in Missouri and used these documents to obtain work at a bacon packaging plant in Pittsburg.
In October 2000, Meza obtained employment at Peerless Products in Fort Scott using the name and documents of Nayssa Davila. The following year Carlson began getting threatening calls from debt collection agencies.
In August 2004, Carlson received a letter from the Internal Revenue Service (IRS) stating she owed over $3,000 in unpaid taxes. She learned that the unpaid taxes were assessed for income she reportedly earned at Peerless. Carlson had never been to Kansas. She contacted the human resources manager at Peerless and Officer Robert Jackson of the Fort Scott Police Department. Jackson went to Peerless and learned that Peerless had an employee named Nyssa Davila who used a social security card and a Kansas identification card issued under that name. When Meza returned to Peerless a few days later to pick up her paycheck, Jackson arrested her on an outstanding warrant for failure to appear and, after Mirandizing her, questioned her about her identity. Meza stated that she was in the United States illegally and had been posing as Nyssa Davila at her places of employment.
Meza was charged with identity theft in violation of K.S.A. 2004 Supp. 21-4018(a). The court conducted a bench trial and Meza was found guilty and sentenced to 18 months’ probation with an underlying prison term of 12 months. She now appeals.
Meza attacks the sufficiency of the evidence, contending that the State failed to prove the “intent to defraud for economic benefit” required by the statute. She also claims her prosecution is time-barred by the applicable statute of limitations.
In determining the sufficiency of the evidence, we review all the evidence in tire fight most favorable to the prevailing party, the State, in order to determine if a rational factfinder could have found Meza guilty beyond a reasonable doubt. See State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005). In considering the statutory requirements for a successful prosecution and the potential bar of the statute of limitations, appellate review is unlimited. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
Intent
Meza claims the State failed to establish that she had the required “intent to defraud for economic benefit.”
Our primary task in considering K.S.A. 2004 Supp. 21-4018(a) is to determine the legislature’s intent. We presume the legislature expressed its intent through the language of tire statutory scheme it employed. In considering the language of the statute, we give ordinary words their ordinary meanings. We will not add language not found in the statute or exclude language found in it. If the statute is plain and unambiguous, we will give effect to the legislature’s expressed intent rather than substitute our own view of what the law ought to be. See Bryan, 281 Kan. at 159.
K.S.A. 2004 Supp. 21-4018(a) defines identity theft as “knowingly and with intent to defraud for economic benefit, obtaining, possessing, transferring, using or attempting to obtain, possess, transfer or use, one or more identification documents or personal identification number of another person other than that issued lawfully for the use of the possessor.”
K.S.A. 2004 Supp. 21-3110(9) defines “intent to defraud” as “an intention to deceive another person, and to induce such other person, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property.”
In City of Liberal v. Vargas, 28 Kan. App. 2d 867, 24 P.3d 155, rev. denied 271 Kan. 1035 (2001), the defendant used a false identification card to obtain employment. However, Vargas adopted the identity of a totally fictitious person, unlike our present case where Meza stole the identity of a real person. In Vargas, this court focused on this distinction and concluded that the statute was intended to protect real persons from having their identities stolen and, in the absence of such a victim, the statute did not apply. 28 Kan. App. 2d at 868-70. Then, by way of dicta, the court noted that the employer in Vargas was not defrauded to obtain an economic benefit in that Vargas did a day’s work for a day’s pay.
We again considered the sufficiency of the evidence to prove identity theft in State v. Oswald, 36 Kan. App. 2d 144, 137 P.3d 1066, rev. denied 282 Kan. 795 (2006). Oswald obtained the victim’s social security number and credit card information with the victim’s consent in order to pay a cellular phone bill, but then used the information without the victim’s consent to obtain a new cellular telephone account. We found that the statute did not require proof of economic loss to the victim, but only proof of Oswald’s intent to defraud for her own economic benefit, and that Oswald’s ability to obtain an account for cellular telephone service using the victim’s identity was an economic benefit to her. 36 Kan. App. 2d at 148-50.
In the case before us, the statute is satisfied if Meza, for her own economic benefit, used Carlson’s social security number knowingly and with the intent to defraud Peerless by inducing it to create for her a right with respect to property.
The evidence established that Meza used a social security card bearing Carlson’s former name and her social security number in order to induce Peerless into believing she was Nyssa Davila, a person eligible to be employed, when in fact she was not. Meza intended for Peerless to rely on this deception and to hire her, thereby giving Meza a job which was an economic benefit to her. In hiring her, Peerless invested Meza with certain property rights which attached to her job, such as access to any available employee benefits, rights under federal laws such as ERISA, together with her entitlement to the protection of the laws of Kansas relating to employment, wage and hour regulations, workers compensation and unemployment benefits, and the like. Meza’s conduct satisfied the requirements of tire statute.
Our interpretation is consistent with that of the courts of other states which have considered this issue under comparable statutes. In State v. Ramirez, 246 Wis. 2d 802, 633 N.W.2d 656, (Wis. App.) rev. denied 246 Wis. 2d 176 (Wis. 2001), the defendant, an illegal alien, was charged with identity theft for using another person’s social security number to obtain employment. One of the elements of the charge was that the defendant “obtain a thing of value.” 246 Wis. 2d at 805. The Wisconsin Court of Appeals rejected Ramirez’ argument that a job did not, in and of itself, have value, stating:
“We think this is far too narrow a concept of the value of Ramirez’s employment at Trek Bike. True, Ramirez obtained employment at Trek Bike. But what Ramirez ultimately sought and obtained was the compensation and other economic benefits that flowed from the employment. Obviously these were things of value within the meaning of [the statute].” 246 Wis. 2d at 808.
See also the opinion affirming a defendant’s conviction under Illinois’ identity theft statute in People v. Montoya, 373 Ill. App. 3d 78, 84-85, 868 N.E.2d 389 (2007), in which the court followed the reasoning in Ramirez, stating:
“Obviously, had defendant not used [the victim’s] name and social security number to obtain a job, she would not have been entitled to receive the wages and insurance benefits that flowed directly from her employment. While it is true that defendant did not actually steal money or services from her employer, she did obtain employment, compensation, and insurance benefits by misrepresenting herself as someone else. Contrary to defendant’s assertion, the statute did not require her to ‘defraud’ her employer by ‘stealing money’ or by ‘being compensated for services not actually rendered’ in order to be guilty of identity theft. Again, the ‘fraudulent’ behavior in this case consisted of defendant’s knowing use of [the victim’s] identifying information to obtain employment, wages, and benefits to which she would not otherwise have been entitled.”
There was substantial evidence to support Meza’s conviction under K.S.A. 2004 Supp. 21-4018(a).
Statute of Limitations
Next, Meza points out the 2-year limitation period of K.S.A. 2004 Supp. 21-3106(8) and argues that the limitation period began to run when she first used the false social security card to obtain employment in 1998. This prosecution did not commence until 2004.
The statute of limitations for prosecution of identity theft is 2 years pursuant to K.S.A. 2004 Supp. 21-3106(8). The question is whether K.S.A. 2004 Supp. 21-4018(a) criminalizes a single, isolated act, or an entire course of conduct. According to K.S.A. 2004 Supp. 21-3106(10), a separate offense is committed each time eveiy element of the offense occurs, unless it plainly appears that the legislature intended to prohibit a continuing offense, in which case the offense occurs when the course of the conduct ends. Thus, if Meza’s theft of Carlson’s identity was a course of conduct which the legislature intended to criminalize, then that conduct ended on the day Meza was arrested and her prosecution was timely.
The crime of theft is not a continuing offense. State v. Gainer, 227 Kan. 670, Syl. ¶ 2, 608 P.2d 968 (1980). Identity theft, on the other hand, hardly qualifies as garden-variety theft. As opposed to the age-old offense of theft which is rooted in and essentially unchanged since Biblical times, identity theft is the product of the Information Age and was first criminalized in Kansas in 1998. Thus, we must look at identity theft from a fresh perspective.
The court declared in Gainer that “[t]o constitute a continuing offense it must plainly appear in the statute defining such offense that there is a clear legislative purpose to make the prohibited course of conduct a continuing offense.” 227 Kan. at 673.
Since the intent of the legislature governs, we turn to the legislative history of K.S.A. 2004 Supp. 21-4018. Prior to the enactment of the statute in 1998, hearings were held by the House Committee on Federal and State Affairs. The committee heard the remarks of three proponents of the bill. No one spoke in opposition. Representative Bonnie Sharp, the author of the bill, testified to her concern about the wrongful use of another person’s social security number for multiple purposes, such as to obtain illegal checking accounts or credit card accounts. Kyle Smith, the Assistant Attorney General assigned to the Kansas Bureau of Investigation, testified regarding the surreptitious acquisition of credit card or social security information with which a wrongdoer can gain access to other personal information which can lead to multiple wrongful acts. Dave Schroeder, a KBI Special Agent whose specialty is computer-related crimes, described identity theft as “[ajcquring someone’s personal identifying information in an effort to impersonate them or commit various criminal acts in that person’s name. Armed with a stolen identity, criminals commit numerous forms of fraud.” Minutes, House Comm, on Federal and State Affairs, February 12, 1998, pp. 1-2.
It is clear that in enacting K.S.A. 2004 Supp. 21-4018(a), the legislature considered identity theft to be not a single act but a continuous course of criminal conduct. The very nature of identity theft involves more than the surreptitious acquisition of a victim’s personal information. It includes the multitude of injurious acts which flow from the acquisition of that information.
In State v. Jones, 13 Kan. App. 2d 520, Syl. ¶¶ 3, 4, 775 P.2d 183 (1989), aff'd 246 Kan. 214, 787 P.2d 738 (1990), this court found that welfare fraud and theft involving the wrongful acceptance of public assistance benefits over time constituted a continuing offense. The court noted that while Gainer involved “a single taking of another’s property,” the offenses in Jones involved the “wrongful taking of benefits on a monthly basis over a period of time.” 13 Kan. App. 2d at 523-24.
Meza’s conduct is similar to the conduct in Jones. Meza’s misrepresentation of her identity was repeated every payday when she accepted, endorsed, and cashed a paycheck made out to Nyssa Davila, for whom Peerless reported these earned wages to the IRS.
Our analysis of this issue is consistent with that of the courts of other states which have considered it. In Ramirez, the Wisconsin Court of Appeals concluded that “the legislature envisioned that the theft of a person’s identity would, in many instances, produce recurring episodes in which the defendant would obtain things of value as a result of the original act of identity theft. . . . We therefore conclude that the statute creates a continuing offense.” 246 Wis. 2d at 812.
A consistent result was obtained in State v. Leyda, 157 Wash. 2d 335, 138 P.3d 610 (2006), though the issue was presented there in the converse. Leyda had been prosecuted for multiple acts of identity theft and argued that his conduct constituted a continuous course of conduct for which only one charge should have been brought. The Washington Supreme Court agreed, holding that the Washington identity theft statute created a continuing offense. 157 Wash. 2d at 337-38, 343-45. The court concluded:
“[OJnce the accused has engaged in any one of the statutorily proscribed acts against a particular victim, and thereby committed the crime of identity theft, the unit of prosecution includes any subsequent proscribed conduct, such as using tire victim’s information to purchase goods after first unlawfully obtaining such information. [Citations omitted.]” 157 Wash. 2d at 345.
Courts in Alabama and Georgia have reached the same result. See Ex parte Egbuonu, 911 So. 2d 748, 753 (Ala. Crim. App. 2004) (Identity theft, by its definition, is a continuing offense that in most instances will occur in more than one county or even more than one state.); State v. Mayze, 280 Ga. 5, 7, 622 S.E.2d 836 (2005) (“[T]he General Assembly has clearly defined the crime of identity fraud as a continuing offense which extends into the county where the victim resides or is located.”).
The State’s prosecution of Meza for this continuing course of criminal conduct was brought within the limitation period of K.S.A. 2004 Supp. 21-3106(8).
Evidence of Victim’s Credit Problems
Finally, Meza argues the court erred in admitting evidence of Carlson’s credit problems as res gestae. She claims the testimony regarding Carlson’s credit report should have been analyzed under K.S.A. 60-455 as other crimes evidence. The State admits that State v. Gunby, 282 Kan. 39, Syl. ¶ 5, 144 P.3d 647 (2006), abolished res gestae as an independent basis for admitting evidence in Kan sas, but argues the trial court did not rely on the evidence of Carlson’s credit problems and, therefore, the error was harmless. The State is correct. After hearing Carlson’s testimony regarding her credit report, the court relied only on the evidence regarding the IRS liability assessed against Carlson for Meza’s wages and specifically stated that it was “not counting the testimony of the victim here as to other difficulties that she’s had.” Nevertheless, the notion of harmless error presumes there was error in the first place. We are not prepared to accept this presumption, but we will examine the issue further.
While the trial court relied on res gestae in admitting this testimony, we must consider whether the court was right for the wrong reason. See State v. Nash, 281 Kan. 600, 602, 133 P.3d 836 (2006). We must also consider whether the credit report constituted evidence of other crimes which required an analysis under K.S.A. 60-455.
The challenged testimony was that Carlson had problems with her credit report and that some of the addresses on her credit report were addresses linked to Meza. This evidence was relevant to the question of whether Meza was using Carlson’s identifying information in violation of the identity theft statute. This evidence related to elements of the crime at issue, not other crimes which would require further analysis under K.S.A. 60-455. The testimony was relevant in that it tended to prove an element of the crime, and it was material in that Meza’s commission of the acts in question was a matter in controversy. The evidence was properly admitted. Meza’s objections to the credit report testimony on the grounds that it was irrelevant, immaterial, or other crimes evidence were properly overruled. Thus, we need not resort to a harmless error analysis since the district court did not err in admitting this testimony.
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Greene, J.:
Matthew D. Denny appeals his conviction of conspiracy to manufacture methamphetamine, arguing insufficient evidence, prosecutorial misconduct, and errors in sentencing. We affirm.
Factual and Procedural Background
On January 19,2005, Denny was involved in activities with Scott Cheever that led to methamphetamine manufacturing and consumption and, ultimately, the fatal shooting of Greenwood County Sheriff Matt Samuels. The extent of Denny’s involvement in all these activities is at the heart of this appeal and will be discussed in more detail below. Denny was charged with first-degree felony murder, manufacture of methamphetamine, and conspiracy to manufacture methamphetamine. The jury found Denny guilty of conspiracy to manufacture methamphetamine but acquitted him of the other counts. He was sentenced to 164 months’ imprisonment.
Was there Sufficient Evidence to Support the Conviction of Conspiracy to Manufacture Methamphetamine?
Denny argues he participated in certain aspects of the manufacturing of methamphetamine, but joint participation in criminal activity, standing alone, is not'sufficient to support a finding of an agreement to commit the crime, relying heavily on State v. Harris, 266 Kan. 610, 975 P.2d 227 (1999). In a challenge of this nature, we consider all of the evidence, viewed in a fight 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).
K.S.A. 2006 Supp. 21-3302(a) provides:
“A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.”
The agreement required by the statute need not be express but may be implied from the actions of the parties. State v. Smith, 268 Kan. 222, 228, 993 P.2d 1213 (1999); State v. Hill, 252 Kan. 637, 641, 847 P.2d 1267 (1993). Moreover, the State need not prove the completed commission of the underlying crime to prove conspiracy to commit that crime. Hill, 252 Kan. at 641-42.
Here, the evidence of Denny s participation was rather extensive. Based upon the testimony of Belinda Cooper who was living at the location of these activities, Denny was part of a group who “all joined together to make methamphetamine.” Denny was outside with the others, and when they came in the house to manufacture, Denny carried “the Budlight bag.” When they received a tip that “cops are on the way,” she went up to warn Denny and Cheever, and “one was holding a bottle, and the other one was holding a tube.”
Billy Nowell testified that he was at the location when Cheever and Denny arrived, and that he and Cheever began “peeling batteries” and Denny and Cooper “were grinding pills up in the kitchen.” All four went outside, got the anhydrous ammonia, and started the manufacturing process, and Denny “was holding the flashlight for us.” Denny participated during the process, at one point “pouring” and at another point carrying the “Budlight duffel bag that contained everything that was needed to complete the manufacturing.” Throughout the process, Cheever and Denny talked with each other on walkie-talkies they had brought with them. Nowell also testified Denny admitted to cooking before that particular cook and that he willingly took part; Nowell never heard Denny say he “wasn’t willing to help.” After the process was completed, Nowell testified Denny smoked methamphetamine “off a piece of aluminum foil.”
Does this extensive participation in the process demonstrate an implied agreement to manufacture methamphetamine? Denny ar gues it does not; we disagree. Viewing this evidence in the light most favorable to the State, we conclude it would stretch the imagination to think Denny’s participation did not reflect agreement to manufacture. We are most persuaded by the evidence that he was involved in the earliest stages of the process, talked with Cheever throughout the process, remained involved throughout, and “enjoyed” the fruits of the process in his consumption of the finished product.
Denny argues State v. Harris, 266 Kan. 610, stands for the proposition that conspiracy is not proven by mere participation in the absence of some evidence of an agreement. We disagree. Harris held that mere presence of a purported coconspirator at an illegal sale did not imply agreement with other purported coconspirators to sell cocaine. Here, Denny was not merely present; his extensive involvement implies agreement.
Denny also argues that because the jury acquitted him of manufacture of methamphetamine, the facts surrounding such manufacture should not be considered as supportive of an implied agreement to manufacture, citing State v. Simmons, 282 Kan. 728, 148 P.3d 525 (2006). We do not read Simmons as holding that once a factfinder determines there is insufficient evidence to convict of the completed crime, charges of conspiracy are unwarranted. The court in Simmons merely noted that the need for an accomplice instruction was undermined by a dismissal at prehminary hearing of the other purported coconspirator. 282 Kan. at 736-37.
We are convinced that when the evidence is viewed in the light most favorable to the State, a rational factfinder could have found Denny guilty of conspiracy to manufacture methamphetamine.
Did Prosecutorial Misconduct Deny Denny a Fair Trial?
Denny next argues that several comments of the prosecutor during closing argument were beyond the wide latitude allowed the prosecutor in discussing evidence and denied him a fair trial. Appellate review of such a challenge requires a two-step analysis. First, the appellate court decides whether the comments were outside the wide latitude that the prosecutor is allowed in discussing the evidence. Second, the appellate court decides whether those comments constitute plain error; that is, whether the statements prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Albright, 283 Kan. 418, 428, 153 P.3d 497 (2007).
In the second step of the two-step analysis, the appellate court considers 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 was of such a direct and overwhelming nature that tire misconduct would likely have had little weight in the minds of jurors. None of these three factors is individually controlling. Moreover, the third factor may not override the first two factors unless the harmless error tests of both K.S.A. 60-261 [refusal to grant new trial is inconsistent with substantial justice] and Chapman v. California, 386 U.S. 18, [22,] 17 L. Ed 2d 705, 87 S. Ct. 824 (1967) [conclusion beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial], have been met. [Citation omitted.]” Albright, 283 Kan. at 428.
Denny complains of three instances of such misconduct: (1) the prosecutor denigrated defense counsel by suggesting he “spen[t] so many hours of your time talking about these issues that don’t matter”; (2) the prosecutor personally attacked Denny’s credibility in stating about his testimony, “Do you believe that? Of course, you don’t, because it’s not the truth”; (3) the prosecutor led the jury to believe that Denny’s silence should be held against him, in stating about the other witnesses, “they both are going to serve a lengthy term of imprisonment in federal prison, which is what they deserve. But they’ve admitted what they did. The defendant hasn’t done that yet. You have to find him guilty of what he did.”
With regard to the first instance, we view the comment as an attempt to get the jury to focus on the evidence most relevant to the State’s case rather than on the defense’s version. Our courts have not found such comments beyond the wide latitude allowed the prosecutor in discussing the evidence in closing argument. See, e.g., State v. Rodriguez, 269 Kan. 633, 643-45, 8 P.3d 712 (2000); State v. Mosley, 25 Kan. App. 2d 519, 524, 965 P.2d 848, rev. denied 266 Kan. 1113 (1998).
With regard to the second instance, we view the comment as prompted by a comment during argument by the defense, vouch ing for the truth of Denny s story of what happened at the location. Given such credibility sparring by both counsel, as well as the isolated nature of the comment, we cannot conclude that this was gross and flagrant misconduct or that it reflected such ill will by the prosecutor as to deprive- Denny of a fair trial. See State v. Elnicki, 279 Kan. 47, 64, 105 P.3d 1222 (2005) (no prejudicial error where questionable statement is provoked by argument of counsel).
With regard to the third instance, we believe die comment must be viewed in context; the defense stated the key State witnesses had motive to lie. due to their plea agreements. In response, the State commended their admission of guilt and contrasted it with the jury’s need to “find [Denny] guilty of what he did.” The argument seems to have been that the State witnesses’ plea agreements entitled them to more credibility than Denny, who might be more inclined to fudge his story in order to avoid the consequences of his acts. In any event, we again conclude that this was not gross and flagrant misconduct or reflective of ill will such as to deprive Denny of a fair trial.
We conclude Denny’s complaints of prosecutorial misconduct do not entitle him to a new trial; in fact, having studied the entirety of the closing argument, having considered the high stakes and impassioned arguments from both parties in a case involving the brutal murder of a popular county law enforcement officer, and having considered Denny’s acquittal for two related charges, we believe Denny was not maligned by the State and received a fair trial.
Did the District Court Err in Sentencing Denny for a Severity Level 1 Felony?
Denny next argues he was entitled to be sentenced for a severity level 4 felony because the use of drug manufacturing paraphernalia with the intent to manufacture a controlled substance (a level 4 felony) is identical to the crime of conspiracy to manufacture methamphetamine (a level 1 felony). Where two statutes with differing penalties proscribe identical conduct, a criminal defendant may be sentenced only to the lesser of the two penalties. State v. McAdam, 277 Kan. 136, Syl. ¶ 3, 83 P.3d 161 (2004).
We addressed this precise question in State v. Miles, 35 Kan. App. 2d 211, 130 P.3d 1198 (2005), rev. denied 280 Kan. 988 (2006). In State v. Fanning, 281 Kan. 1176, 1183, 135 P.3d 1067 (2006), our Supreme Court cited with apparent approval the Miles result, that the elements of conspiracy to manufacture methamphetamine under K.S.A. 65-4159(a) were not identical to the elements of possession of drug paraphernalia under K.S.A. 65-4152. We do not perceive that there is any reason to depart from Miles.
In Miles, we held that K.S.A. 65-4152 possesses a crucial element which differs from the elements for manufacturing methamphetamine under K.S.A. 65-4159(a): physical control of drug paraphernalia. 35 Kan. App. 2d at 214. We recognize that this holding may be difficult to reconcile with our Supreme Court’s analysis in Fanning, where the court held that the statutory elements were not identical when comparing the offenses of attempted manufacture of methamphetamine and possession of drug paraphernalia with the intent to manufacture methamphetamine, so long as the facts of the case showed no use of the paraphernalia. 281 Kan. at 1183-84. See State v. Bethe, No. 96,020, unpublished opinion filed May 25,2007; State v. Merz, No. 95,432, unpublished opinion filed May 25, 2007; State v. Johnston, No. 95,703, unpublished opinion filed May 25, 2007.
We need not belabor any analytical differences among these recent cases, however, so long as we focus on the elements of conspiracy to manufacture and compare those elements to possession of drug paraphernalia. Whether or not the defendant used the paraphernalia to manufacture, the crime of conspiracy inherently contains an additional element that is clearly not present in the crime of possession of paraphernalia: an agreement to manufacture. Because the statutes proscribe different conduct, the rule of McAdam does not require resentencing of Denny.
Did the District Court Err in Considering Denny’s Prior Juvenile Adjudications in Determining His Criminal History Score?
Finally, Denny argues his prior juvenile adjudications should not have been included to determine his criminal history score of E, relying on Apprendi v. New Jersey, 530 U.S. 466, 490, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000). This argument has been addressed and rejected in State v. Hitt, 273 Kan. 224, 42 P.3d 732 (2002), cert. denied 537 U.S. 1104 (2003) (holding that juvenile adjudications are appropriately included in determining a defendant’s criminal history score). See State v. Lackey, 280 Kan. 190, 239-40, 120 P.3d 332 (2005), cert. denied 547 U.S. 1056 (2006); State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2001).
The Court of Appeals is duty bound to follow the Kansas Supreme Court precedent absent some indication the court is departing its previous position. State v. Merrills, 37 Kan. App. 2d 81, 83, 149 P.3d 869 (2007).
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KNUDSON, J.:
This is an interlocutory appeal by the State from an order of the district court suppressing evidence in a driving under the influence (DUI) prosecution. The controlling facts are not in material dispute. A Reno County deputy sheriff observed Jason Tedder s truck stopped at an intersection. Tedder was asleep at the wheel; the truck was running and still in gear. The deputy opened the truck door and noticed a strong smell of alcohol. There was an open beer can on the truck’s console. Tedder was arrested for illegal transportation of liquor, taken to the police station, and given Miranda warnings. He refused to perform field sobriety tests and asked to speak to an attorney. Tedder was then given the oral and written notices required in K.S.A. 8-1001(f) and agreed to the breath test. After the test results were obtained, Tedder was formally arrested for DUI. At the subsequent suppression hearing, the district court suppressed the results of the breath test, reasoning Tedder’s constitutional right to consult with an attorney before taking the breath test had been violated. The State appeals, contending Tedder did not have a constitutional right to consult with an attorney prior to taking the breath test.
We reverse the suppression order and remand this case to the district court for trial proceedings.
Analysis
When the material facts to the district court’s decision on a motion to suppress are not in dispute, the question of whether to suppress is a question of law over which this court has unlimited review. State v. Porting, 281 Kan. 320, Syl. ¶ 2, 130 P.3d 1173 (2006).
There is no constitutional right to consult with an attorney prior to submitting to or refusing a breath test. K.S.A. 8-1001(f)(C); Standish v. Department of Revenue, 235 Kan. 900, Syl. ¶ 5, 683 P.2d 1276 (1984). In addition, asking a defendant whether he or she will submit to a test does not constitute custodial interrogation. State v. Leroy, 15 Kan. App. 2d 68, Syl. ¶ 3, 803 P.2d 577 (1990). We conclude the district court’s order suppressing the results of the test because Tedder’s constitutional rights were violated is legally untenable.
On appeal, Tedder argues his statutory right to consult with an attorney was violated. We acknowledge that under K.S.A. 8-1001(f)(1) Tedder had the right to consult with an attorney after completion of the test. However, he failed to invoke his right to counsel after performing the breath test.
We hold a request for counsel must be made after completion of the breath test before there can be a violation of a defendant’s statutory right to confer with an attorney. In support of our holding, see Schulz v. Kansas Dept. of Revenue, 19 Kan. App. 2d 665, 670, 877 P.2d 1 (1993); State v. Kelly, 14 Kan. App. 2d 182, 188-89, 786 P.2d 623 (1990). Also persuasive are Nelson v. Kansas Dept. of Revenue, No. 92,979, unpublished opinion filed August 19,2005, slip. op. at 5-6; and State v. Nodgaard, No. 95,747, unpublished opinion filed January 12,2007, slip op. at 7 (defendant was properly notified of the right to counsel after completion of the breath test, but defendant failed to request counsel after completion).
Reversed and remanded with directions. | [
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Leben, J.:
Less than 6 months before the 2004 election, Phillips County Sheriff Leroy Stephen was injured while trying to handcuff an unruly prisoner. After the injury, he was off work for nearly 2 months. When he returned to work, his doctors directed that he lift no more than 10 pounds and avoid stooping, bending, or twisting. While operating under those restrictions, he lost the primary election in August. In October 2004, the work restriction was expanded to allow him to lift up to 30 pounds. While operating under the revised work restrictions, he lost a write-in campaign in the November general election.
No one can say whether Stephen lost his job because of the injury — voters are not required to explain their votes. But Sheriff Stephen was an employee covered by the Kansas Workers Compensation Act, and he sought and obtained a permanent partial disability award that included an amount partially compensating him for his wage loss after he lost his job. Phillips County argues that because there is no proof that Stephen lost his job as a result of his injury, he should not be allowed to recover any amount compensating for wage loss after his term as sheriff ended. In prior cases, most recently Roskilly v. Boeing Co., 34 Kan. App. 2d 196, 116 P.3d 38 (2005), we have affirmed the award of such benefits to an employee whose layoff was for economic reasons unrelated to the employee’s injury. We find no reason to apply a different rule to an employee who lost his job due to an election defeat, and we affirm the Workers Compensation Board’s award of benefits to Stephen.
A: Putting Our Issue in the Context of Workers Compensation Law.
As we have noted and will discuss in more detail soon, prior cases share some similarities to this one. The main task before us in this case is to determine whether these prior cases control the result here.
First-year law students learn that the law develops in large part by analogy. A court decides that a case involving facts A and B comes out a certain way. When the next case involves facts A, B, and C, the court must decide whether the same result still applies or whether fact C has fundamentally altered the landscape so that a different result is called for. Although this form of caselaw development arose under the common law — where there is no benefit of statutory guidance — it also applies in statutory interpretation, albeit with an emphasis on the statutoiy language as the preeminent guidepost. So if a statute has been applied a certain way when facts A and B are present, the court ordinarily will apply it that same way when facts A, B, and C are present unless fact C calls for a different application under the statutory language.
To determine whether the Roskilly rule applies here, we must first review some of the basics of workers compensation benefits. Some injuries are listed on a schedule that determines the benefit paid — ranging from the loss of the use of a shoulder, which calls for 225 weeks of benefit payments, to the loss of use of the little finger, which calls for 15 weeks of benefit payments. When a Kansas worker has a lasting injury not listed on the schedule that causes partial disability, the Workers Compensation Act provides an award for “permanent partial general disability.” That award may be calculated in two ways: (1) based on a statutorily defined work disability or (2) based on overall functional impairment calculated according to the American Medical Association Guides to the Evaluation of Permanent Impairment. The employee receives the greater of these two awards unless he or she is working and earns at least 90% of the pre-injury wage; in that case, the employee receives only the functional-impairment award for “as long as” he or she is earning at least 90% of the pre-injury wage. K.S.A. 44-5l0e(a).
The work-disability calculation is itself based on two factors: (1) medical evidence of the employee’s percentage loss of ability to perform work-related tasks and (2) the employee’s actual wage loss (calculated as the percentage of pre-loss wages that the employee is now unable to earn). The calculated percentages for diminished ability to perform tasks and wage loss are averaged. They are then used to calculate the permanent partial general disability award in this method:
[(employee’s average gross weekly wage x 66.67%) OR (statutory maximum wage amount)] x (work-disability percentage) x (no. weeks of benefit left to be paid) = permanent partial general disability award.
See K.S.A. 44-510e(a); Graham v. Dokter Trucking Group, 284 Kan. 547, 556, 161 P.3d 695 (2007).
A review of that formula reveals that a substantial part of the award is designed partially to compensate for future wage loss. The number of remaining weeks of benefits to be paid in the formula is 415 weeks minus the number of weeks over 15 that temporary benefits were paid. Thus, if a worker received temporary benefits for 30 weeks, 400 weeks would be inserted into the formula. The worker receives the benefit calculated under the work-disability formula only if it exceeds the benefit calculated under the functional-impairment formula, which has already factored in the compensation deemed appropriate under this statute for the injury itself. So the work-disability formula provides partial compensation for future wage loss. Given that context, Phillips County argues here that Stephen should not be able to recover this work-disability award, which compensates him for wage losses after he lost reelection, because there is no proof that he lost the election because of his injury.
One additional wrinkle in Kansas workers compensation law must be discussed, though because of a stipulation it makes only a cameo appearance in our case. This court has held that it is implicit in the Workers Compensation Act that an employee who loses the job at which the injury took place must make a good-faith effort to find work. Absent good faith, then an appropriate post-injury wage based on what the claimant should have been able to earn is imputed to determine the wage loss. See Castro v. IBP, Inc., 29 Kan. App. 2d 475, 478, 30 P.3d 1033 (2001); Copeland v. Johnson Group, Inc., 24 Kan. App. 2d 306, 320, 944 P.2d 179 (1997). The parties in our case stipulated to the wage that would be imputed if the fact-finder determined Stephen did not seek new employment in good faith. Neither party has argued here that the cases imposing this good-faith requirement — which is not found in the statutory language — should be overruled.
B: The Employee Who Loses His Job in a Layoff Still Receives Workers Compensation Benefits Attributable to Future Wage Losses.
This court has previously considered two cases involving employees laid off at the Boeing Company in Wichita. In both cases, we affirmed the award of work-disability benefits after the employee was laid off for economic reasons unrelated to the em ployee’s injury. Roskilly, 34 Kan. App. 2d 196; Lee v. Boeing Co., 21 Kan. App. 2d 365, 899 P.2d 516 (1995).
In Roskilly, after considering the statutory language and the view of the Workers Compensation Board, this court agreed with the Board’s determination that a work-disability award is not precluded under the statute even though the “claimant’s loss of employment . . . [was] due to reasons other than his or her injury.” 34 Kan. App. 2d at 200. The claimant in Roskilly was laid off due to a general reduction in workforce while he was still receiving treatment but before he had received his final disability rating. The claimant in Lee was laid off for economic reasons after he had returned to work in a less strenuous job than the one at which he was injured. The facts in Lee arose before K.S.A. 40-510e(a) was amended in 1993, but Roskilly arose under the current statute.
There are also some cases in which this court has upheld the denial of work-disability benefits when a claimant had been fired for cause. E.g., Newman v. Kansas Enterprises, 31 Kan. App. 2d 929, 77 P.3d 492 (2002). But Phillips County does not argue here for the application of those cases, presumably because it would have the burden to show that Stephen was terminated for cause— and, as we have already noted, voters are not required to give reasons for choosing one candidate over another, even an incumbent with 25 years of service.
C: The Employee Who Loses His Job by Losing an Election Is Entitled to the Same Workers Compensation Benefits as One Who Is Laid Off.
The claimant in our case was an elected sheriff, not a factory worker. And he lost his job not because of an economic downturn but because the voters refused to give him another term in office. We must determine whether these differences have so fundamentally altered the landscape that they call for a different result when applying the statute on these facts.
One might argue that an elected sheriff has no right to continue in that position at the end of the term of office. Though that’s true, it does not distinguish the situation from that of an at-will employee, who does not even have a right to continued employment. Thus, when applying Roskilly’s rule that a work-disability award is not precluded when the loss of job is caused by something other than injury, we see no basis to distinguish the loss of a job due to an election defeat from the loss of a job due to an economic downturn. In either case, the employee has lost the job. And from the employee’s vantage point, the key concern at that point is whether — with any disability resulting from the injury — he or she can find new employment at a comparable wage. The injury may well be related to the ongoing inability to obtain new work at a comparable wage, even though the injury did not cause the job loss itself.
There is certainly evidence in this case to support the view that Stephen’s injury left him unable to obtain new work at a comparable wage. Although there was an issue over whether Stephen had exercised good faith to look for a new job, Phillips County stipulated that even if he had exercised good faith to look for a new job, he still would have suffered a 63.5% wage loss. The Workers Compensation Board found that Stephen had not exercised good faith; they noted that he had only submitted one application for a deputy-sheriff position. Based on Phillips County’s stipulation, they imputed the 63.5% loss of wage-earning capacity. That was averaged together with a 46% loss of the ability to perform work-related tasks for an overall work-disability percentage of 54.75%. That percentage was the basis for Stephens’ work-disability award.
Because Phillips County stipulated to the extent of the wage loss, we have no findings that document the specific difficulties Stephen had in obtaining new employment. But it is not hard to imagine that an inability to lift more than 30 pounds, bend, stoop, or twist would significantly limit the ability of a law-enforcement officer to find similar work.
Several other considerations support applying the same rule as applied in Lee and Roskilly here. First, as in all statutory-interpretation cases, we start with the statutory language itself. Phillips County concedes that there is no language in K.S.A. 44-510e(a) requiring a causal connection between the injury and the loss of employment. Indeed, the statutory language tells us to calculate the work-disability percentage by averaging two percentages:
• First, “the extent ... to which the employee, in the opinion of the physician, has lost the ability to perform the work tasks that the employee performed in any substantial gainful employment during the fifteen-year period preceding the accident,” and
• Second, “the difference between the average weekly wage the worker was earning at the time of the injury and the average weekly wage the worker is earning after the injuiy.”
The statute is quite straightforward in its direction to compare the pre-injuiy and post-injury wages, and no mention is made of any requirement that the reduced wage must have been directly caused by the injury.
Second, the Workers Compensation Board has interpreted the current statute as not containing such a causation requirement, both in our case and in Roskilly. Although the Board’s interpretation of the statute is not binding on us, it is entitled to some deference when there is a rational basis for it. Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 5, 154 P.3d 494 (2007). The Board’s interpretation is entitled to deference here: the statutory language doesn’t suggest that a causal connection is required so it is certainly rational to interpret it so.
Third, in determining whether to extend the holdings of Lee and Roskilly to new factual situations, it is appropriate to consider whether those precedents are in line with caselaw in other jurisdictions. They are: other state courts have also held that a disability award may be made even after the claimant’s employment has been terminated for reasons not related to the injury. See Johnston v. Super Food Services, 461 So. 2d 169, 170 (Fla. Dist. App. 1984) (holding that an employee is entitled to benefits even if wage loss is attributable to economic conditions, seasonal layoff, or for-cause discharge); Bradley’s Case, 56 Mass. App. Ct. 359, 360-61, 778 N.E.2d 11 (2002) (holding that an employee is entitled to benefits for loss of earning capacity even though the job had become unavailable due to an employer’s lockout); B.E. & K. Const. v. Abbott, 59 P.3d 38, 42-45 (Okla. 2002) (holding that an employee is entitled to benefits even when that employee volunteers for an employer- instigated reduction in force where the ultimate termination decision lies with the employer).
Fourth, we note that an ordinary person injured by negligence outside the workplace would not be precluded from recovering a wage loss in a similar circumstance. See Amberson v. Woodul, 108 S.W.2d 852, 855 (Tex. Civ. App. 1937); 22 Am. Jur. 2d, Damages §§ 149-50,158. Meanwhile, an injured worker s only remedy, even if injured through negligence of die employer, is the one provided under the Workers Compensation Act. K.S.A. 44-501(b). That remedy is explicidy limited by statute in ways not applicable to tort victims — the statute limits the amount that can be recovered and the time period over which benefits, the equivalent of tort damages, may be collected. We see no reason to further limit the employee’s remedy based upon concepts not found in the statute and not applied to an ordinary tort victim.
Phillips County attempts to insulate its position from these arguments by relying on our decision in Graham v. Dokter Trucking Group, 36 Kan. App. 2d 521, 141 P.3d 1192 (2006). In Graham, this court had held that the work-disability test included both the inability to perform work tasks and the loss of wages “resulting from the worker’s disability.” 36 Kan. App. 2d at 526. This court also held that a wage loss was not compensable when it resulted from a worker’s self-imposed restriction. 36 Kan. App. 2d at 526. But this court’s ruling in Graham was reversed, and the Supreme Court emphasized that the statutory language references actual earnings, not ability to earn wages, for computing a work disability. 284 Kan. 547, 558, 161 P.3d 695 (2007). We note that both in Graham and in Casco, the Supreme Court has emphasized the need to focus primarily on the language used in the Workers Compensation Act itself. Graham, 284 Kan. at 556-59; Casco, 283 Kan. at 521-29. Wage loss for purposes of calculating work disability is defined by the plain language of K.S.A. 44-510e(a) as the difference between pre-injury and post-injury wages, and it is easily calculated. Graham, 284 Kan. 547, Syl. ¶ 6. There is no language in the statute that suggests that a claimant loses the ability to claim work disability either because he was laid off for economic reasons or because he lost a bid for reelection.
Phillips County also cites to Hernandez v. Monfort, Inc., 30 Kan. App. 2d 309, 41 P.3d 886, rev. denied 274 Kan. 1112 (2002). In that case, a claimant did not receive a work-disabiliiy award based on the statutoiy prohibition for “as long as” the employee is earning at least 90% of the pre-injuxy wage. The Board concluded that Hernandez’ reduced wages were because he was working less overtime, not due to injury. Phillips County points to the Board’s finding, quoted in our decision, that there must be “ ‘some type of causal connection or nexus between the injury and the disability for which the benefits are being awarded.’ ” 30 Kan. App. 2d at 310. The Board noted that although the statutory language did not explicitly contain such a requirement, “the fundamental function and purpose of the Act requires that there be a nexus between the injury and the wage loss.” 30 Kan. App. 2d at 310. This court concluded that there was substantial competent evidence to support the Board’s conclusion that Hernandez’ wage drop was due to the reduced overtime. This court also treated the Board’s finding that Hernandez was not entitled to a work disability as a negative finding, which may be overturned only based on arbitrary disregard of uncontroverted evidence, or evidence of bias, passion, or prejudice.
Hernandez involved a company-wide decrease in overtime hours, not a loss of employment. Hernandez has previously been distinguished from a case involving the loss of employment. Chowning v. Cannon Valley Woodwork, Inc., 32 Kan. App. 2d 982, 992, 93 P.3d 1210 (2004). In Chowning, this court concluded that Lee, not Hernandez, applied when the work-disability claim was not based on a loss of overtime hours. The Board in Stephen’s case concluded that Lee was more analogous to the case now before us than Hernandez. We agree and decline to extend Hernandez to the loss-of-job situation for which Lee and Roskilly already provide guidance.
Conclusion
The Workers Compensation Board’s award of a work-disability benefit to Stephen is based squarely on the language of K.S.A. 44-510e(a) and our prior decisions in Roskilly and Lee. The decision of the Board is affirmed. | [
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Knudson, J.:
The State charged Patrick Jones with one felony count of aggravated failure to appear, in violation of K.S.A. 21-3814. The district court dismissed the case at preliminary hearing after finding an appearance bond is not forfeited until payment is made by the surety. The district court erred, and the charge against Jones must be reinstated.
Underlying Circumstances
On February 1, 2006, Patrick Jones was charged in case 06 CR 107 with one count of felony possession of methamphetamine and several misdemeanors. Jones was released on bond. On February 22, 2006, Jones was charged in case 06 CR 197 with one count of felony possession of methamphetamine and several misdemeanors. He was again released on bond. In both cases, Jones was required, as a condition of his bond, to appear at all court proceedings.
On February 27, 2006, Jones failed to appear for a proceeding in case 06 CR 197. The district court ordered Jones’ bond “revoked” and issued a bench warrant for his arrest. Jones appeared before the court on March 27, 2006, and explained that he had failed to appear because he had been jailed in Kearny County. The district court reset the bond.
Eventually, both of Jones’ cases were set for arraignment on June 26,2006. He again failed to appear. The State requested a warrant, noting that Jones had previously failed to appear. The district court issued a bench warrant and stated that “[b]ond would be ordered revoked.” The warrant stated that the “[c]ourt declare[d] a bond forfeiture.”
Jones did appear on August 21, 2006, after being picked up on warrants. After Jones’ attorney stated a plea agreement had been discussed with die State, the district court continued the case and reinstated the bonds in both of Jones’ cases. The State did not object to the reinstatement of the bonds. It is apparent to us that the reinstatement and the State’s acquiesce contributed to the district court’s concern that Jones should not have been subsequently charged with aggravated failure to appear.
On September 11, 2006, the district court held a hearing for both of Jones’ cases. The State presented a new complaint charging Jones with aggravated failure to appear, based on his failure to appear on June 26,2006. The district court noted its confusion and disagreement with the charge of aggravated failure to appear but agreed to schedule a preliminary hearing.
On September 29,2006, the district court accepted Jones’ guilty pleas in cases 06 CR 107 and 06 CR 197. The State then presented evidence at the preliminaiy hearing on the charge of aggravated failure to appear, case 06 CR 1041. The State requested that the court take judicial notice of cases 06 CR 107 and 06 CR 197. The district court reiterated its position that there was no forfeiture of the bond. The State responded that the forfeiture occurred on June 26,2006, when the defendant failed to appear and the district court forfeited the bond and ordered a warrant.
The district judge then stated, “I revoked the bond. I know that your orders say forfeited the bond, but we revoked the bond because the bond is not forfeited until there’s a payment in by the surety.” The court found that the bond was revoked, not forfeited, and discharged Jones on the charge of aggravated failure to appear.
Discussion
On appeal, the State argues that the plain reading of K.S.A. 21-3814 does not require payment by the surety before a defendant can be charged with aggravated failure to appear. The State also argues that the district court’s action of “revoking” the bond was under the facts of this case a forfeiture of the bond. The State notes that the bench warrant issued by the district court specifically stated a forfeiture had been declared.
Jones contends that the district court merely revoked Jones’ bond and that recent amendments to K.S.A. 2006 Supp. 22-2807 indicate that the Kansas Legislature distinguishes between the revocation of a bond and the forfeiture of a bond. He further contends that the district court’s finding that a bond is not forfeited until the surety makes payment is consistent with the Kansas Legislature’s use of the term “forfeiture.”
The interpretation of a statute is a question of law over which this court has unlimited review. An appellate court is not bound by the district court’s interpretation. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). It is fundamental that the legislature’s intent be ascertained. “The legislature is presumed to have expressed its intent through the language of the statutory scheme. Ordinary words are given their ordinary meanings. A statute should not be read to add language that is not found in it or to exclude language that is found in it.” 281 Kan. at 159. The court must give effect to the legislature’s intent expressed in the statute when there is no ambiguity and the meaning is plain. 281 Kan. at 159 (citing State v. McCurry, 279 Kan. 118, 121, 105 P.3d 1247 [2005]).
K.S.A. 21-3814 provides: “Aggravated failure to appear is willfully incurring a forfeiture of an appearance bond and failing to surrender oneself within 30 days following the date of such forfeiture by one who is charged with a felony and has been released on bond for appearance before any court of this state.”
As interpreted by the district court, a forfeiture of an appearance bond, a statutory element of K.S.A. 21-3814, does not occur “until there’s a payment in by the surety.” The district court’s interpretation is not tenable.
Forfeiture of appearance bonds is governed by K.S.A. 2006 Supp. 22-2807, which provides in part: “(1) If there is a breach of a condition of an appearance bond, the court in which the bond is deposited shall declare a forfeiture of the bail.” (Emphasis added). See State v. Marble, 21 Kan. App. 2d 509, 517, 901 P.2d 521, rev. denied 258 Kan. 861 (1995) (forfeiture of an appearance bond requires only the breach of some condition of the bond); State v. Buckle, 4 Kan. App. 2d 250, 253, 604 P.2d 743 (1979) (noting the use of the word “shall” in 22-2807[l]).
Under K.S.A. 2006 Supp. 22-2807(1), the district court has no discretion as to whether a forfeiture of bail should be ordered. It is apparent the district court must have understood its order of June 26,2006, was a forfeiture of bond because the resulting bench warrant so provided. Here, the district judge’s use of the word “revoked” does not alter the fact that a forfeiture did occur on June 26, 2006. We hold the district court’s mistaken use of the word “revocation” rather than “forfeiture” in its pronouncement from the bench does not alter the legal nature of the judicial act and the record establishes the necessary threshold predicate for an aggravated failure to appear prosecution.
This interpretation is further supported by recent amendments to K.S.A. 2006 Supp. 22-2807. On April 18, 2007, the Kansas Legislature approved changes to K.S.A. 2006 Supp. 22-2807:
“(1) If there is a breach of-eondition of a defendant fails to appear as directed by the court and guaranteed by an appearance bond, the court in which the bond is deposited shall declare a forfeiture of the bail.
“(2) An appearance bond may only be forfeited by the court upon a failure to appear. If a defendant violates any other condition of bond, the bond may be revoked and the defendant remanded to custody. The magistrate shall forthwith set a new bond pursuant to requirements of K.S.A. 22-2802, and amendments thereto." L. 2007, ch. 145, sec. 5.
Prior to the 2007 amendments, the breach of any condition of an appearance bond, including failure to appear, required the district court to declare a forfeiture of the bond. The new language indicates that a district court now has discretion to revoke a defendant’s bond if the defendant breaches any condition of the bond other than by failure to appear. The defendant’s failure to appear still requires forfeiture of the appearance bond. Under the plain language of K.S.A. 2006 Supp. 22-2807(1), even as amended, the district court had no discretion to “revoke” Jones’ bond and the “revocation” is construed to be a forfeiture of the bond.
The decision of the district court is reversed, the charge of aggravated failure to appear is reinstated, and the case is remanded for further proceedings.
Reversed and remanded with directions. | [
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Green, J.:
Travis Williams appeals from the trial court’s summary dismissal of his K.S.A. 60-1501 petition. On appeal, Williams contends that the lack of a formal disciplinary procedure in the Sexual Predator Treatment Program (SPTP) at the Lamed State Hospital denied him due process under the 14th Amendment to the United States Constitution. Because Williams’ complaint concerning a lack of a disciplinary procedure in the SPTP to protect his due process rights involves an agency action and is controlled by the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., we determine that Williams brought his action in the wrong forum. As a result, we determine that the trial court correctly held that it lacked jurisdiction to consider this action. Further, assuming arguendo that this is the proper forum for Williams’ 60-1501 petition, we determine that Williams has failed to allege in his petition shocking or intolerable conduct or continuing mistreatment of a constitutional stature sufficient to afford him relief under habeas corpus. Accordingly, we dismiss.
In August 2003, Williams was committed to the SPTP at the Lamed State Hospital. On February 12, 2006, Williams’ room was searched and several adult DVD movies that were rated X were seized. On February 15, 2006, Williams was called to a meeting with the SPTP treatment team where he was told that he was being reduced to a Level 1 in the program. Williams was told that he would have to retake several “Core Phase” classes. Williams alleges that he was also told that he had to disclose who gave him the adult movies, how the movies got into the facility, and the names of any other individuals he knew who had adult movies. Williams was told that he would not get his privileges back unless he cooperated with these conditions. Nevertheless, Williams refused to disclose any of the requested information.
According to Williams, it was revealed during an investigation of another resident that the movies seized from Williams actually belonged to another resident and that a staff member had brought the movies into the facility for that resident. Williams alleged that he had to meet with the SPTP treatment team again to tell them his story and take a polygraph test to ensure that he was telling the truth. Williams was told that this was to help the SPTP treatment team with their investigation.
Williams sent a letter titled “Grievance” to Eric Fox, the director of consumer relations for the Lamed State Hospital, detailing the above facts. Williams alleged that he had been deprived of his properly, his job, and his wages. Moreover, Williams argued that the use of the polygraph for investigative purposes was improper and illegal. Fox responded to Williams’ grievance in a written letter dated April 12, 2006, stating that he had investigated Williams’ claim. Fox noted that it was the consensus among different departments across campus that it was allowable to have him take the polygraph test. Fox advised Williams to participate with the treatment team’s plans in order to progress through the levels of the SPTP.
In May 2006, Williams filed his K.S.A. 60-1501 petition. Williams alleged that his properly, privileges, and job were taken and that more restrictive living conditions were imposed on him without due process of law. Specifically, Williams alleged that a disciplinary procedure had not been established within the SPTP program that provided for the following: (1) that a resident is entitled to receive advance written notice of the charges against the resident at least 24 hours before the disciplinary hearing; (2) that the fact-finder shall prepare a written statement setting out the evidence relied upon and the reason for the disciplinary action; and (3) that the resident is entitled to call witnesses and to present documentary evidence in the resident’s defense. Williams requested that the trial court grant the following relief: (1) order that Williams be reinstated to phase level 3; (2) restrain the appellees from reducing Williams’ phase level until constitutional procedures for disciplinary hearings and the opportunity for appeal had been established; and (3) order the establishment of a patient rule book that listed the precise violations and penalties, the policy and procedures outlining processes for a hearing, the right to have a legal or staff representative through every step of the hearing process, and the process for an appeal.
The appellees, Austin DesLauriers (the Clinical Director of the SPTP program) and Leo Herrman (the Program Director of the SPTP program), moved to dismiss Williams’ action. The trial court held a nonevidentiary hearing in July 2006. The trial court determined that to die extent that Williams was seeking declaratory or injunctive relief, the provisions of the KJRA provided the exclusive means by which the court could provide such relief. Therefore, the trial court dismissed Williams’ case seeking declaratory relief under K.S.A. 60-1701 et seq., which is the Uniform Declaratory Judgments Act adopted in 1993. Moreover, the trial court found that Williams had failed to allege or show that the actions complained of in his K.S.A, 60-1501 petition were incompatible with the legitimate treatment team goals related to the discipline and behavior modification and the treatment of patients committed to the SPTP. Accordingly, the trial court granted the appellees’ motion to dismiss.
Did. the trial court err in summarily dismissing Williams’ K. S.A. 60-1501 petition?
On appeal, Williams argues that the trial court erred in dismissing his K.S.A. 60-1501 petition without holding an evidentiary hearing. This court’s standard of review over a trial court’s summary dismissal of a K.S.A. 60-1501 petition is well established:
“K.S.A. 60-1503 authorizes the summary dismissal of a habeas corpus petition if it plainly appears from the face of the petition and any exhibits attached thereto that the plaintiff is not entitled to relief in the district court. To avoid summary dismissal the allegations must be of a constitutional stature. In determining if this standard is met, courts must accept the facts alleged by the inmate as true. If a violation of due process is alleged, a question of law is raised over which an appellate court has unlimited review.” Hogue v. Bruce, 279 Kan. 848, Syl. ¶ 1, 113 P.3d 234 (2005).
The SPTP civil commitment statute is narrowly drawn to serve the State’s compelling interest in treating sexual predators and protecting society from their inappropriate behavior. Because Williams had been determined to be a sexually violent predator under the SPTP civil commitment statute, he was committed to the custody of the Secretary of Social and Rehabilitation Services for the following purposes: “for control, care and treatment until such time as [his] mental abnormality or personality disorder has so changed that [he] is safe to be at large.” K.S.A. 2006 Supp. 59-29a07. Moreover, Williams was required to receive his “control, care, and treatment” in a facility operated by the Department of Social and Rehabilitation Services (SRS). See K.S.A. 2006 Supp. 59-29a07.
In his brief, Williams makes a disjunctive argument: “[T]he failure to establish a disciplinaiy procedure at the [SPTP] violated [Williams’] rights to due process. This is the crux of the entire case — whether his due process rights are to be held in primary regard, or whether the legitimate treatment team decisions or medical decisions’ trump them.” A true disjunctive argument is one which expresses a choice between two exclusive alternatives. To omit a possible alternative renders the argument suspect and its conclusion unacceptable. Williams’ argument does not contain a true disjunction because it fails to mention a third alternative: that the SPTP’s due process procedure, though sketchy, furnished Williams with a remedy for adequate relief.
We note that Williams fails to allege that no administrative remedy existed under the SPTP. In fact, the record indicates that Williams participated in a grievance procedure. Nevertheless, we have been handicapped in reviewing this grievance procedure because neither party has included, in the record, a copy of the grievance procedure. This is significant because a petitioner must have exhausted available administrative remedies before seeking judicial review under a K.S.A. 60-1501 proceeding. Fletcher v. Nelson, 253 Kan. 389, Syl. ¶ 3, 855 P.2d 940 (1993).
The record does show that Williams filed a grievance with Eric Fox, the director of consumer relations for the Lamed State Hospital. The record also indicates that both Fox and the SPTP treatment team investigated Williams’ grievance. The record shows that Williams was encouraged to cooperate with the investigation. Finally, the record indicates that Williams refused to cooperate in the investigation. Nevertheless, because we agree with the trial court that this issue was brought in the wrong forum, as discussed later in this opinion, it is not necessary to address this issue further.
Declaratory Judgment
At the nonevidentiary hearing in this case, Williams’ counsel clarified that part of Williams’ request in his K.S.A. 60-1501 petition was for a declaratory judgment that the SPTP needed to establish procedures comporting with due process requirements. Thus, a resident involved in a similar situation in the future would be given a hearing, notice of the action, and an opportunity to prepare a response. Nevertheless, the trial court found that in order for Williams to pursue that type of claim, he was required to pursue relief under the KJRA.
Exclusive Means of Review
The KJRA applies to all agencies and all proceedings for judicial review and civil enforcement of agency actions that are not specifically exempted by statute. K.S.A. 2006 Supp. 77-603(a); Heiland v. Dunnick, 270 Kan. 663, 668, 19 P.3d 103 (2001). “The KJRA is the exclusive remedy for all requested relief which an agency can grant under its authority. Only actionable claims which fall outside the authority of an agency to grant can support a separate action by an aggrieved party.” Douglass v. Kansas State University, 22 Kan. App. 2d 171, 174, 915 P.2d 782, rev. denied 259 Kan. 927 (1996).
Williams’ complaints about a lack of a formal disciplinary procedure for the SPTP program would come under an agency action. K.S.A. 77-602(b) defines an “agency action” as follows: “(1) The whole or a part of a rule and regulation or an order; (2) the failure to issue a rule and regulation or an order; or (3) an agency’s performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise.” SRS is the agency charged with the control, care, and treatment of sexually violent predators.
Here, Williams is seeking a declaratory judgment or an injunction against SRS because of SRS’s alleged failure to establish a formal disciplinary procedure for the SPTP. This type of relief would fall under K.S.A. 77-602(b)(2) or (3): “the failure to issue a rule and regulation or an order; or ... an agency’s performance of, or failure to perform, any other duty, function or activity, discretionary or otherwise.” K.S.A. 77-606 states that the KJRA is “the exclusive means of judicial review of agency action.”
Furthermore, K.S.A. 77-622(b) of the KJRA allows a court to do the following:
“The court may grant other appropriate relief, whether mandatory, injunctive or declaratory; preliminary or final; temporary or permanent; equitable or legal. In granting relief, the court may order agency action required by law, order agency exercise of discretion required by law, set aside or modify agency action, enjoin or stay the effectiveness of agency action, remand the matter for further proceedings, render a declaratory judgment or take any other action that is authorized and appropriate.”
As the appellees point out, the KJRA allows the court to grant relief (including declaratory and injunctive relief) if it determines that the agency action is unconstitutional (K.S.A. 77-621[c][l]); or if the agency has engaged in an unlawful procedure (K.S.A. 77-621[c][5]); or if the agency action was otherwise unreasonable, arbitrary, or capricious (K.S.A. 77-621[c][8]). Because Williams has failed to file his action under the KJRA, his action is in the wrong forum.
Due Process Clause
Although we have determined that Williams should not have bypassed the KJRA in bringing his due process claim, we will consider whether Williams, under any circumstances, could have properly bypassed the KJRA in bringing his due process claims. In fact, the trial court found that with respect to Williams’ claim that his due process rights were violated, the KJRA was not the exclusive vehicle for Williams to present his claims. K.S.A. 60-1501(a) states:
“Subject to the provisions of K.S.A. 60-1507, and amendments thereto, any person in this state who is detained, confined, or restrained of liberty on any pretense whatsoever, and any parent, guardian, or next friend for the protection of infants or allegedly incapacitated or incompetent persons, physically present in this state may prosecute a writ of habeas corpus in the supreme court, court of appeals or the district court of the county in which such restraint is taking place. No docket fee shall be required, as long as the petitioner complies with the provisions of subsection (b) of K.S.A. 60-2001 and amendments thereto.”
Under K.S.A. 60-1501, “any person” who is confined in Kansas may prosecute a writ of habeas corpus in the county in which such restraint is taking place. Based on die broad language of K.S.A. 60-1501, it seems that the trial court was correct in determining that an individual confined in the SPTP program could bring a habeas corpus petition alleging due process violations. See In re Jones, 228 Kan. 90, 104-05, 612 P.2d 1211 (1980) (recognizing that if chief medical officer of state security hospital, where individuals are committed, should fail to perform duties, safeguard of habeas corpus action under K.S.A. 60-1501 is available to committed person whose rights are adversely affected thereby). Nevertheless, even if Williams properly filed his due process claims under K.S.A. 60-1501, he cannot prevail as his allegations do not rise to a constitutional stature sufficient to provide him relief under habeas corpus.
The 14th Amendment to the United States Constitution states that “[n]o State shall . . . deprive any person of life, liberty, or property, without due process of law.” Procedural due process questions are examined in two steps. The first step is to determine whether the State has deprived the individual of life, liberty, or property. If there has been a deprivation of life, liberty, or property due to State action, the second step is to determine the extent and nature of the process due. Hogue, 279 Kan. at 850-51; see Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460, 104 L. Ed. 2d 506, 109 S. Ct. 1904 (1989). The process requirement necessary to establish 14th Amendment procedural due process comes into play only after a plaintiff has shown that he or she has a protected property or liberty interest. See Murphy v. Nelson, 260 Kan. 589, 598, 921 P.2d 1225 (1996).
Protected liberty interests arise from two sources: (1) the Due Process Clause; and (2) the laws of the states. Shepherd v. Davies, 14 Kan. App. 2d 333, 335, 789 P.2d 1190 (1990). “ ‘ “A State creates a protected liberty interest by placing substantive limitations on official discretion.” [Citation omitted.]’ ” Davis v. Finney, 21 Kan. App. 2d 547, 554, 902 P.2d 498 (1995) (quoting Thompson, 490 U.S. at 462). In order to constitute a protected liberty or property interest for 14th Amendment purposes, an individual must have a legitimate claim of entitlement to it. The interest must be more than an abstract need or desire and more than a unilateral expectation. Murphy, 260 Kan. at 598; Davis, 21 Kan. App. 2d at 553-54.
Here, Williams seemed to argue that he suffered a deprivation of his property when the SPTP treatment team seized the movies from his room. Nevertheless, in his letter to Fox, Williams pointed out that the movies actually belonged to another resident of the SPTP program. Because the movies were not his property, the team members did not infringe upon any “protected property interest” of Williams by seizing the movies.
Williams also argued that he suffered a deprivation of his liberty by having his phase level reduced from a level 3 to a level 1. Williams maintained that as a result of the reduction in his phase level, he had fewer privileges and more restrictive living conditions and had lost his job through the SPTP program. Williams contended that his due process rights were violated because there was no formal disciplinary procedure in place similar to that used by the Kansas Department of Corrections in a disciplinary proceeding.
Our research has revealed no cases in Kansas, drat have addressed a similar argument for an individual committed to the SPTP program. Nevertheless, in cases involving a prison inmate, our Supreme Court and this court have held that an inmate’s custody classification does not involve a liberty interest. In Bankes v. Simmons, 265 Kan. 341, 351, 963 P.2d 412, cert. denied 525 U.S. 1060 (1998), our Supreme Court held that an inmate’s custody classification, the housing assignment given to an inmate, spending limitations at a canteen, regulation of visiting hours, and regulation of other daily activities that are not atypical and do not pose a significant hardship within a prison do not involve a liberty interest. Moreover, in Lile v. Simmons, 23 Kan. App. 2d 1, 929 P.2d 171 (1996), this court held that the appellant inmate had no liberty interest in receiving minimum security status and refused to review the Department of Corrections’ decision to maintain the inmate’s medium security status.
Here, Williams has not shown that he had a protected liberty interest in being on a particular phase level of the SPTP program. As a person who had been determined to be a sexually violent predator and had been civilly committed to the control, care, and treatment of SRS, Williams needed to show that he was subjected to some loss of liberty that was beyond the normal circumstances of confined treatment. The alleged actions by the SPTP treatment team were part of Williams’ treatment plan as a sexually violent predator.
First, a legitimate purpose for confinement of an SPTP resident is to prevent the resident from having access to sexually explicit materials. These materials could adversely affect the resident’s treatment plan. As a result, the seizures of such materials is necessary to both treat and protect the resident and to protect others. Second, a resident’s status and privileges in the SPTP are expressly conditioned on the resident’s compliance with the rules and the policies of the SPTP. As a result, the actions by the SPTP staff in reducing Williams’ treatment phase level are not of such a stature as to infringe on Williams’ constitutional rights.
Recognizing that this case differs from one brought by a prison inmate because this case involves a civil commitment, the trial judge stated:
“I think all parties acknowledge that the Department of Corrections does have an elaborate procedures [sic] in place for not only administrative remedies, but the types of due process procedures that must be followed at any sort of disciplinary hearing. I don’t think that there is serious dispute by any of the parties that this is a civil case and that the extent of those protections would be lesser in a civil commitment proceeding than in a proceeding in the Department of Corrections, where potentially you’re looking at a loss of good time credit or other loss of specific liberty interests.”
The trial court then compared Williams’ confinement to a civil commitment under the mental illness code:
“In comparing this civil commitment procedure to the normal civil commitment procedure under the mental illness code, the Court would note that the treatment team in those instances has free leave for a person that is mentally ill, which would also apply to the findings made for Mr. Williams in this case, to seclude an individual for reasons of inappropriate behavior, to take away privileges or to grant privileges, in terms of a behavior modification program, and to generally provide as a treatment team decision the type of confinement or privilege confinement that an inmate may have.”
The trial court found that the SPTP treatment team had imposed the discipline or behavior modification in Williams’ case as a part of a valid treatment program or valid treatment interest. We agree. The SPTP staff must have the authority to confiscate sexually explicit materials from an SPTP resident and to take away privileges from the resident when inappropriate materials are discovered in the resident’s possession. This allows the SPTP staff to fulfill the SPTP civil commitment statute’s dual purpose of treatment and protection of society.
In Bankes, 265 Kan. at 349, our Supreme Court noted that proceedings on a K.S.A. 60-1501 petition are not subject to the ordinary rules of civil procedure. To avoid summary dismissal, a K.S.A. 60-1501 petition must allege shocking and intolerable conduct or continuing mistreatment of a constitutional stature. In this case, Williams’ allegations do not rise to the level of “shocking and intolerable,” nor does Williams show “continuing mistreatment of a constitutional stature.” The trial court was correct in determining that Williams had failed to show that the actions complained of in his K.S.A. 60-1501 petition were incompatible with the legitimate treatment goals related to the discipline and behavior modification and the treatment of patients committed to the SPTP.
Because Williams cannot establish a constitutional claim sufficient to provide him relief under habeas corpus, his K.S.A. 60-1501 petition was properly dismissed.
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Greene, J.:
Joe F. Brake (operator) and B. Eugene Blankinship (collectively Lessees), lessees of an oil and gas lease covering two tracts in Chautauqua County, appeal the district court’s summary judgment cancelling their lease in favor of William W. Dexter and Margaret Jane Dexter (as trustees of revocable trusts) and Kenneth W. Nelson and Helen O. Nelson (collectively Lessors), to the extent of their interests. Brake and Blankinship argue the court erred in refusing to dismiss the action for failure to join necessary parties and in cancelling the lease. Lessors cross-appeal, arguing the court erred in refusing to award them attorney fees. We affirm the district court.
Factual and Procedural Background
In 1964, R.A. Osborn executed an oil and gas lease covering a single tract of 520 acres in Chautauqua County. In 2004 when this litigation was initiated, the Lessees’ interest was owned 92% by Brake and 8% by Blankinship. The 520 acres covered by the lease were subject to divided ownership as follows:
TRACT #1: the south 240 acres, with surface ownership in the Dexters’ revocable trusts, but minerals owned 50% by the Dexters and 50% by Terry Gene Monroe and Lela Mae Monroe, who reserved this % mineral interest in a deed to the Dexters in 1993.
TRACT #2: the north 280 acres, with surface and mineral ownership in the Nelsons, but subject to one half of landowners’ royalty as a nonparticipating royalty interest, reserved by the Monroes in a deed to the Nelsons’ predecessor in interest.
The terms of the original oil and gas lease are not material to the issues framed in this litigation because an addendum to the lease was executed by the parties after a 2002 fire damaged the operating equipment and caused a cessation of production. The addendum, executed in February 2004 by all the parties, including the Monroes, contained express covenants that are at the heart of the litigation. These covenants include:
“1. Lessee shall place the lease into production within 60 days after Februaiy 1, 2004;
“2. Lessee place the gas well into production within 120 days of Februaiy 1, 2004 or plug it;
“3. Lessee clean up and remove (not bury on the landowner’s property) all leasehold equipment not actually used in the operation of the lease within 120 days of Februaiy 1, 2004;
“4. Lessee construct the ‘new/replacement’ tank batteiy facility in accordance with an SPCC Plan; that he furnish berm material from outside the lease property and not use soil from the leasehold premises; and that he furnish a copy of that plan to the landowners;
“5. Lessee back fill all open pits presently existing within 60 days of date of ratification;
“6. Lessee properly maintain roads, gates and entrances to the lease and that he not use dirt or other materials from the property for construction of roads or stream crossings without prior written approval of the landowners;
“9. Lessee efficiently operate the lease as a prudent operator would do under like circumstances; that equipment be repaired and maintained in a diligent and workmanlike manner; and that no salt water, oil or other substance be allowed to accumulate and remain in overflow pits, dikes or containment areas.”
The addendum also provided that “[fjailure to comply with each of the conditions above set forth will result in termination of the oil and gas lease.”
In July 2004, the Dexters and Nelsons filed suit to cancel the lease, alleging breach of the covenants contained in the addendum; the Monroes were not joined as parties. Brake and Blankinship answered contending they had expended significant amounts of money and time to bring the leasehold back into production and had otherwise complied with the addendum and original lease; they did not assert as a defense that necessary parties were not joined, nor did they affirmatively seek to join the Monroes.
In early 2006, competing motions for summary judgment were filed, Lessors claiming that the lease should be cancelled for breach of the addendum covenants and Lessees claiming the suit should be dismissed for failure to join necessary parties. Notably, Lessees did not respond to Lessors’ statement of 41 uncontroverted facts as required by Supreme Court Rule 141(b) (2007 Kan. Ct. R. Annot. 218), and these facts contained unequivocal statements showing breach of the addendum covenants.
The district court, based on the uncontroverted facts, granted plaintiffs’ motion for summary judgment. The court concluded the facts established the breach of the terms and provisions of the addendum and, hence, resulted “in the termination of the oil and gas lease.” Although the court acknowledged Lessees’ arguments that they had “substantially complied” with the addendum and that the Monroes were necessary and indispensable parties to the suit, it found “the actions of the [lessees did] not constitute substantial performance” and concluded the Monroes were not necessary parties to the cancellation action. The lease was ordered cancelled to the extent of both the Dexters’ and Nelsons’ interests.
The Dexters timely filed a motion to alter or amend the decision to allow attorney fees under K.S.A. 55-202. After a hearing on the motion, the court denied this motion. Lessees filed a timely notice of appeal, and Lessors filed a timely notice of cross-appeal.
Standard of Review
To the extent this appeal requires that we review the district court’s summary judgments, we apply the well-established standards. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, 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. The trial court is required to resolve all facts and inferences that 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. Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
To the extent this appeal requires that we review the district court’s refusal to award attorney fees under a statutory provision, we review the decision under an abuse of discretion standard. Tyler v. Employers Mut. Cas. Co., 274 Kan. 227, 242, 49 P.3d 511 (2002). Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the propriety of the action taken by the trial court, it cannot be said that the trial court abused its discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006).
Did the District Court Err in Refusing to Grant Lessees’ Motion for Summary Judgment Based on Failure to Join Necessary Parties?
Lessees initially argue on appeal that the district court erred in overruling their motion for summary judgment seeking dismissal due to Lessors’ failure to join contingently necessary parties. The fundamental question is whether the Monroes’ undivided mineral interest in tract #1 or their nonparticipating royalty interest in tract #2 caused them to be contingently necessary parties who should have been joined in the action for cancellation of the lease.
On this question, the district judge concluded: “Terry G. Monroe and/or others, as owners of the ’Monroe interests’ are not necessary or indispensable parties to this action,” reasoning from the bench, “I think it’s important that we try to resolve this issue for the Dexters, and I think that we can work around the issues of the Monroes.”
In Kansas, whether the joinder of persons is required for just adjudication of an action is generally governed by K.S.A. 60-219, which states:
“A person is contingently necessary if (1) complete relief cannot be accorded in his absence among those already parties, or (2) he claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action in his absence may (I) as a practical matter substantially impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest.”
Neither party cited this statute on appeal, but we must ultimately determine whether the Monroes are contingently necessary parties based upon this statutory criteria. See Commerce Bank, N.A. v. Liebau-Woodall & Assocs., L.P., 28 Kan. App. 2d 674, Syl. ¶¶ 1-3, 20 P.3d 88, rev. denied 271 Kan. 1036 (2001). Following placement of this appeal on the court’s calendar, we issued an order suggesting supplemental briefing on the application of K.S.A. 60-219, and both parties filed such a brief.
The precise questions framed in this appeal are surprisingly complex and have divided legal authorities both within and among various jurisdictions. At the outset we examine Lessees’ argument that we recognize the following general rule:
“In an action for cancellation of an instrument all persons whose rights or interests will be affected by the cancellation are proper and necessary parties and indispensable, unless the rights of those before the court are completely separable from the rights of those absent.” 13 Am. Jur. 2d, Cancellation of Instruments, § 48 (necessary parties).
See Toklan Royalty Corp. v. Panhandle Eastern Pipe Line Co., 168 Kan. 259, 212 P.2d 348 (1949).
We do not necessarily reject this rule, but we note that it is not coextensive with the criteria of K.S.A. 60-219, and we conclude it fails to answer the questions before us: Are the owners of an undivided Vz mineral interest and a nonparticipating royalty interest carved from the mineral interest “affected by cancellation” of an existing oil and gas lease, and are the rights of the Dexters and Nelsons “completely separable from [those] rights”?
The Monroes’ undivided mineral interest in tract #1 entitles them to enter the property to explore for, develop, and produce oil and gas, or to contract with a third party to facilitate the exploration and development of oil and gas. Compton v. Gas Co., 75 Kan. 572, 89 Pac. 1039 (1907). In Kansas, each cotenant of the mineral interest has an equal right to develop the mineral interest or have it developed by a third party. Mobil Oil Corp. v. Kansas Corporation Commission, 227 Kan. 594, 606-07, 608 P.2d 1325 (1980).
The Monroes’ perpetual nonparticipating royalty interest in tract #2 entitles them to receive one-half of all royalties payable to the mineral interest, but it does not entitle them to participate in the exploration or development of that interest. See Shepard, Executrix v. John Hancock Mutual Life Ins. Co., 189 Kan. 125, 133, 368 P.2d 19 (1962); contrast Skelly Oil Co. v. Cities Service Oil Co., 160 Kan. 226, 160 P.2d 246 (1945).
Examination of Lessors’ Authorities
Lessors urge us to adopt the solution proposed by an authoritative treatise on oil and gas as to each of the Monroes’ interests. As to the Monroes’ perpetual undivided mineral interest, the treatise reports and proposes they are not necessary or indispensable parties.
“The authorities are nearly unanimous that a cotenant owning a perpetual mineral interest subject to a lease is not an indispensable or necessary party to a suit by other cotenants to cancel the lease as to the latters’ undivided interests. It is said that a decree of cancellation covering only the plaintiffs’ interest will not adversely affect the absent cotenant. This statement is not entirely correct; it would be more accurate to say that the decree of cancellation does not have such an adverse effect on the absentee that his presence in court is required.
“The cancellation of a lease as to an undivided interest in the mineral deprives the lessee, of course, of the exclusive operating rights in the land. In most states, this means that the lessee may continue to operate, but must share the profit from production with the cotenants not subject to the lease. It further means that the lessee takes the full risk of any additional drilling operations. . . . Thus, the adverse effect on the absent cotenant of cancelling a lease as to plaintiff s undivided interest is the inhibiting effect such cancellation has on further drilling operations by the lessee.
“As noted, most courts have not considered this consequence sufficiently serious to require bringing the cotenant into the suit. We believe this position is sound.” 5 Williams & Myers, Oil and Gas Law § 877.3 (2007) (citing Thiessen v. Weber, 128 Kan. 556, 278 Pac. 770 [1929], and Skelly Oil Co. v. Wickham, 202 F.2d 442 [10th Cir. 1953]).
As to the Monroes’ perpetual nonparticipating royalty interest, the authorities appear to be far more divided, but the treatise urges the view that “the owner of a perpetual nonparticipating royalty or nonexecutive mineral interest is not a necessary or indispensable party to an action to cancel the lease, in whole or in part, for breach of implied covenants.” 5 Williams & Myers, Oil and Gas Law § 877.4 (2007). This view is based upon the following rationale:
“It is difficult to see how the absence of such person affects the lessee. Since the cancellation decree terminates the lease as to both lessor and royalty owner, there is no danger of multiple litigation or of inconsistent judgments on the cancellation issue. Nor does the absence of the royalty owner create the risk of the court’s rendering a hollow judgment: the royalty owner is bound by the decision on cancellation.
“. . . Is the royalty owner so adversely affected by a judgment of cancellation that justice requires him to be given notice of the suit and an opportunity to participate? There is little or no adverse effect on a perpetual nonparticipating royalty owner or nonexecutive mineral owner from the cancellation of a lease for breach of covenant. The nonparticipating interest remains intact; when and if a new lease is executed and production obtained, the nonparticipating owner will share in production. Whatever risk the nonparticipating royalty owner is exposed to stems from the power of the executive to improperly exercise the exclusive leasing power. Ordinarily, the self-interest of the executive is sufficient safeguard. When it is not, a duty of fair-dealing protects the nonparticipating owner. Since the royalty owner is in precisely the same position after cancellation of the lease as he was before the lease was executed, he should not be regarded as either a necessary or indispensable party.”
Examination of Lessees* Authorities
In contrast to this treatise authority, Lessees urge us to examine two Kansas cases and two federal cases they contend apply Kansas law and reach the conclusion that the Monroes are contingently necessaiy parties to this action.
In the Toldan cases, owners of approximately 60% of oil and gas leases covering 3200 acres sought to cancel a gas purchase contract with Panhandle Eastern Pipeline Company encompassing 6400 acres, alleging breach of the contract. In the first Toldan case, our Supreme Court held that the owners of the other 40% of the lessee interests in the 3200 acres were necessary and indispensable parties to the cancellation action. Toklan Royalty Corp. v. Panhandle Eastern Pipe Line Co., 168 Kan. 259, 212 P.2d 348 (1949). In the second Toldan case, those owners of the 40% lessee interests in the same 3200 acres had been joined, but the owners of leases on the other 3200 acres encompassed by the contract were still not parties, and the Supreme Court held they were necessary and indispensable as well. Toklan Royalty Corp. v. Panhandle Eastern Pipe Line Co., 172 Kan. 305, 239 P.2d 927 (1952). This situation must be distinguished from that before us; here we are not addressing the rights of other lessees of acreage encompassed by the same gas purchase contract sought to be cancelled but rather ab sentee owners of interests carved from Lessors’ interest in properties covered by the same oil and gas lease sought to be cancelled. All owners of the lessee interest in that oil and gas lease are before the court, and the joinder considerations discussed in the Toklan cases are simply inapplicable.
In the first of the federal cases, the plaintiff/owner of exclusive rights to gas in the Chase zone sued the defendant/operator of rights to produce gas from the Council Grove zone, some 100 to 200 hundred feet below the Chase, alleging the defendant had illegally perforated some or all of its eight wells in the Chase and were extracting gas belonging to plaintiff. Defendant moved to dismiss for failure to join other interest owners in the subject well, presumably other owners of the working interest. The court noted the operator’s interest was on average less than 50% in the wells and did “not equate” with that of the absent joint venturers. Accordingly, the court found the absent interest owners were indispensable parties and dismissed tire action. Cross Timbers Oil Co. v. Rosel Energy, Inc., 167 F.R.D. 457 (D. Kan. 1996). This situation must be distinguished from that before us; here we are not addressing the rights of coowners of a leasehold interest but rather absentee owners of interests carved from Lessors’ interests in the properties. The effect of the litigation on both parties and absent parties was entirely different in Cross Timbers and thus drove a different result.
In the second of the federal cases, the lessee of certain oil and gas leases sought to quiet title on the leases as against others who held new leases covering the same acreage, but failed to join “the landowner-lessors whose lands are covered by the old and new leases and the numerous owners of these leasehold estates, as lessees under the old and new leases.” Hugoton Energy Corp. v. Plains Resources, Inc., 141 F.R.D. 320, 321 (D. Kan. 1991). Concluding the absent parties “have a vital stake in the outcome of this action,” the court held that the absent landowners and leaseholders were necessary parties and dismissed the action. 141 F.R.D. at 322. Again, this situation must be distinguished from that before us; here we have no competing leasehold interests but rather absentee owners of interests carved from the Lessors’ interests and covered by only a single leasehold.
Statutory Analysis
Having examined the authorities urged by the parties, we return to the statutory criteria to determine contingently necessary parties.
Can complete relief be accorded to those already parties in the absence of the Monroes?
The Dexters explain the result of cancellation to the extent of the Lessors’ interests as follows:
As to the Dexters’ tract #1:
“Upon cancellation, Monroes will continue to be entitled to receive one-half of the original one-eighth landowner’s royalty (Asth). Defendants will continue to be entitled to operate the lease and receive 7/ieths of the proceeds of oil or gas sold, subject to their proportionate part of the operating expenses (%sths); Dexters will be entitled to one half of the proceeds of oil or gas produced, subject to their proportionate part of the operating expenses (%sths).”
As to the Nelsons’ tract #2:
“Cancellation of the oil and gas lease will not extinguish the perpetual non-participating royalty interest of Monroes in that tract. In the event Nelson re-lease their tract for future oil and gas production, Monroes will be entitled to receive one-half of whatever the landowner’s royalty is that Nelsons contract for.”
Clearly, both the Dexters and the Nelsons are generally not deprived of relief because they can have the lease cancelled as to their interests. As one court explained the outcome in addressing similar facts:
“The judgment adjudicated that the oil and gas lease had terminated only with respect to the separate and distinct interests of the plaintiffs. It in no wise undertook to adjudicate the rights of Skelly under its oil and gas lease with respect to the other owners of undivided interests. The rights of such other owners were wholly unaffected by the judgment.” Skelly Oil Co. v. Wickham, 202 F.2d 442 (10th Cir. 1953).
Lease cancellation as to their interest only is particularly complete for the Nelsons, who are entitled to full cessation of operations by Lessees, and who have no impairment to the further ex ploration and development for minerals on their property. This relief is somewhat less complete for the Dexters, who have no impediment to further exploration and development of their mineral interest, but who must potentially tolerate the continuing presence of Lessees on the surface of their land to the extent necessary for development of the Monroes’ mineral interest. See Krug v. Krug, 5 Kan. App. 2d 426, 618 P.2d 323 (1980); see also 2 Williams & Myers, Oil and Gas Law § 502 et seq. (concurrent interests). Does this deny them complete relief for purposes of K.S.A. 60-219?
Given the burden on the Lessees of continued operations for the Monroes’ mineral interest, it is not likely that this surface impairment on the Dexters’ tract will persist as a practical matter; if it does persist, the Dexters may seek partition of their interest and unify their ownership by a successful bid at partition sale. See Holland v. Shaffer, 162 Kan. 474, 178 P.2d 235 (1947) (Ordinarily, the right to partition mineral interests is considered an incident of common ownership.). We adopt the rationale of Williams & Myers, who argue that the absent cotenant need not be joined under these circumstances:
“First, the land may be subject to partition, after which the lessee again has the exclusive operating interest in the portion of the land subject to the lease. Second, for the lessee to be held liable to one cotenant for breach of implied covenant requires a finding that the operator was derelict in his operations on the land and suggests that further drilling operations were not in his contemplation. Third, anyone who owns or buys an undivided interest in minerals must be aware of the risk that the lease may terminate, that agreement among the cotenants on a new lease may not be reached, and that drilling operations may therefore be inhibited by the inability of an operator to obtain exclusive operating rights in the land.” 5 Williams & Myers, Oil and Gas Law § 877.3.
The practical problems resulting from cancellation only to the extent of the Dexters’ ownership, however, are not the result of the absence of the Monroes in the action for cancellation so much as they are inherent in common ownership of the minerals — a circumstance extant when all of these parties gained their relative interests in the property. Moreover, the only hardship of the available relief is on the Dexters, and they urge the court to proceed without their cotenant in the minerals. We conclude that “complete relief’ can indeed be accorded absent the Monroes.
Do the Monroes claim an interest relating to the property or transaction which is the subject of the action?
The “subject of the action” is Lessees’ oil and gas lease; as to their mineral interest in tract #1, the Monroes clearly claim a direct interest as a successor to the original lessor and, as to their nonparticipating royalty interest in tract #2, they have an indirect interest in continuing royalty payments.
Are the Monroes so situated that the disposition of the action in their absence may as a practical matter substantially impair or impede their ability to protect that interest?
As to the Dexter property (tract #1), the Monroes are not so situated that the disposition of the action in their absence may as a practical matter substantially impair or impede their ability to protect that interest. There is no impediment to a subsequent action by the Monroes to seek cancellation of the lease to the extent of their interest if they become disenchanted with the operations of the current lessees. As to the Nelson property (tract #2), we agree with Williams & Myers, who note that a perpetual nonparticipating royalty interest “remains intact” and that the interest owner is “in precisely the same position after cancellation of the lease as [they were] before the lease was executed.” 5 Williams & Myers, Oil and Gas Law § 877.4 (2007).
Does the absence of the Monroes leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of their absence?
The absence of the Monroes certainly does not leave either the Nelsons or the Dexters subject to any risk of double, multiple, or inconsistent obligations; the lease is cancelled as to their respective interests, and their “obligations” under the lease are at an end. As to Lessees and their remaining “obligations” under the lease, the question is somewhat more complex.
First, as to the Nelson tract, there is no risk to Lessees of double, multiple, or inconsistent obligations because cancellation finalizes the entirety of the lessee-lessor relationship among these parties and there is no possibility of further “obligations” by reason of the oil and gas lease.
As to the Dexter tract, there is the clear risk of impairment to the Lessees’ revenue interest by reason of the cancellation to the extent of the Dexters’ interest, but the absence of the Monroes does not leave Lessees subject to any obligations that were not already inherent in operating the lease on the tract with divided minerals. The partial cancellation theoretically allows the Lessees to continue operations of the lease, but their obligations thereunder are not doubled or multiplied by reason of a partial cancellation. Is there a risk they may be subjected to inconsistent obligations? Continuation of operations poses no risk of inconsistency. In the event of a subsequent cancellation suit by the Monroes, Lessees may be compelled to once again defend their interest, but we foresee no possibility of inconsistent obligations; either the court will cancel the lease as to the Monroes’ interest, or it will permit continued operations under the lease. Neither scenario would incur obligations inconsistent with the decree in the present action; cancellation in the second action would be theoretically consistent with the decree of partial cancellation in the first action, but refusal to cancel as to the Monroes’ interest would be consistent with the outcome of the first action.
Leasehold operations on tracts with divided minerals inherently pose more obligations than operations on tracts with unified mineral ownership; we conclude that the risk of double, multiple, or inconsistent obligations by reason of the Monroes’ absence from this litigation is not expanded beyond these inherent obligations. As to Lessees, there is no potential for double, multiple, or inconsistent obligations; clearly, their revenue interest may be impaired and their risks may be enhanced by a cancellation as to the Dexters’ interests, but tírese risks are not incurred by reason of the Monroes’ absence, but rather the consequences of divided mineral interests.
Having applied the statutory criteria, we conclude the Monroes were not contingently necessary parties to the lease cancellation action, adopting in large part the rationale of Williams & Myers. The district court did not err in refusing to dismiss the action by reason of the absence of the Monroes; given the nature of the interests they owned, the Monroes were not contingently necessary to the cancellation action.
Did the District Court Err in Granting Summary Judgment for Lessors, thus Cancelling the Oil and Gas Lease as to Them?
Lessees next argue the district court erred in holding the leases should be cancelled for breach of the covenants contained in the addendum. They contend that their significant effort and expenditures on the leasehold constituted substantial performance of the covenants, and they were — at a minimum — entitled to a trial on this issue. We disagree.
Lessors’ motion for summary judgment set forth as uncontroverted facts that Brake had breached the covenants numbered 2 and 8 above, and at no time, either within or outside of the 21-day period for response did Lessees attempt to controvert these facts. Accordingly, these facts must be deemed admitted. See K.S.A. 60-256; Supreme Court Rule 141 (2007 Kan. Ct. R. Annot. 218). Inasmuch as Lessees breached express covenants in the addendum and the addendum expressly provided that breach would result in termination, we must affirm the district court’s conclusion that the oil and gas lease should be cancelled to the extent of the parties’ interests.
Lessees argued in district court and now argue on appeal that they substantially performed the covenants at issue and “are entitled at a minimum to the right to a trial of this case on its merits so they can set forth in great detail their efforts to comply with the Addendum.” It is elementary that any performance excusing breach of the covenants alleged to have been breached in Lessors’ summary judgment motion should have been set forth by Lessees in response to the uncontroverted facts. Lessees essentially admitted breach of the covenants by reason of their silence, and they cannot now be heard to complain of this consequence. Supreme Court Rule 141 (2007 Kan. Ct. R. Annot. 218); see K.S.A. 60- 256(e); Money v. Ft Hays State Univ. Endowment Ass'n, 31 Kan. App. 2d 322, Syl. ¶ 2, 64 P.3d 458, rev. denied 276 Kan. 969 (2003).
The district court did not err in granting summary judgment in favor of Lessors, cancelling the oil and gas lease as to the Dexters and Nelsons.
Did the District Court Err in Denying the Dexters’ Motion for an Award of Attorney Fees?
Lessors abandoned their request for attorney fees at the hearing on the summary judgment motions, with counsel stating, “I would like to withdraw that request, at this time. I think there is some problem with it, and so we are not requesting allowance for attorney fees.” After the ruling on the summary judgment motions, Lessors filed a motion to alter or amend judgment pursuant to K.S.A. 60-259 seeking an award of attorney fees under K.S.A. 55-202. The district court determined it could consider the question under 60-259 but denied the motion.
K.S.A. 55-202 provides:
“Should the owner of such lease neglect or refuse to execute a release as provided by this act, then the owner of the leased premises may sue in any court of competent jurisdiction to obtain such release, and the owner may also recover in such action of the lessee, his or her successors or assigns, the sum of one hundred dollars as damages, and all costs, together with a reasonable attorney’s fee for preparing and prosecuting the suit, and he or she may also recover any additional damages that the evidence in the case will warrant. In all such actions, writs of attachment may issue as in other case.”
We note at the outset that the provision authorizes the award of attorney fees by its language of “may also recover” but there is no mandatory aspect of this provision. Accordingly, the district court has discretion to award fees, and we review that decision for an abuse of discretion.
Although Lessors contend on appeal the district court abused its discretion in failing to evaluate and address the appropriate factors to determine an award of attorney fees under the statute, we disagree. We simply cannot conclude that no reasonable person would have denied the fee request under these circumstances.
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