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Brazil, J.:
State Farm Mutual Automobile Insurance Company (State Farm) appeals from a jury verdict finding that the State Farm insurance' policy issued to Brian Owen provided coverage for Owen’s involvement in an automobile accident with Billy Snodgrass on September 29, 1978. Plaintiffs, Snodgrass and his insurance carrier Automobile Insurance Company of Hartford, Connecticut, (Hartford) have cross-appealed.
In July 1978, Owen owned a 1966 Cadillac insured by State Farm. On July 26, 1978, Owen purchased a Camaro from Mark Ball. Ball could not locate the certificate of title, so, approximately one week after receiving Owen’s check for the Camaro, Ball issued Owen a bill of sale for the Camaro. Sometime within a we^k of July 26, Owen took possession of the Camaro and moved it to his home. It was not in running condition.
Owen called his State Farm agent, Bill Ayers, on or around August 26, 1978, and asked Ayers if he could insure the Camaro. Ayers informed Owen that the Camaro could not be insured until Owen obtained the car title. Owen mistakenly thought that the Ball family was continuing to insure the Camaro.
On September 29, 1978, Owen had the Camaro in running condition and was test driving it when the accident occurred. Snodgrass was seriously injured. State Farm denied coverage, and Snodgrass therefore filed suit against Owen, as an uninsured motorist, and Hartford as the insurance carrier for the car Snodgrass was driving. The State Farm uninsured motorist policy limits on the Cadillac were $50,000, whereas the limits of the Hartford policy were $60,000. In addition, Snodgrass had received more than $15,000 in workers compensation benefits. Under Kansas law at the time of the accident, any recovery from Owen’s State Farm liability policy would have been subject to the workers compensation carrier’s rights of subrogation under K.S.A. 44-504. Conversely, uninsured motorist coverage was not reducible by workers compensation benefits. By proceeding against Hartford’s uninsured motorist coverage, Snodgrass received $60,000 from Hartford plus $15,000 or more from workers compensation for a net recovery of more than $75,000; whereas, even if successful in recovering under the State Farm policy, he would have received $50,000 minus more than $15,000 for a net recovery of less than $35,000.
Neither Owen nor his attorney made any further claims against State Farm after it denied coverage. Snodgrass recovered a judgment against Owen in the amount of $300,000. Hartford paid Snodgrass $60,000 pursuant to the provision in the uninsured motorist insurance policy issued in favor of Snodgrass. State Farm was not involved in the suit.
Owen assigned his right of action against State Farm to Snodgrass and Hartford. Snodgrass and Hartford then brought suit against Státe Farm, alleging that Owen was insured by State Farm at the time of the accident and that State Farm was obligated under the terms of the policy to defend Owen in the accident suit and to indemnify Owen from judgment in that suit.
State Farm argued that it refused to defend or cover the accident because the Camaro was available to Owen for his frequent or regular use from July 26, 1978, and was therefore not a non-owned automobile as defined by the policy. State Farm also contended that the Camaro was not a newly acquired automobile under the policy because no application for insurance was made within 30 days from the date of the acquisition of the car.
The jury returned a verdict in favor of Snodgrass and Hartford. The jury specifically found that the policy issued by State Farm provided coverage for Owen while driving the Camaro on the date of the accident. The jury found that State Farm failed to defend Owen and deprived him of benefits without just cause or excuse and that State Farm acted with negligence or bad faith in breaching the insurance contract. The plaintiffs were granted judgment in the amount of $300,000 plus $274,762.30 interest accrued from May 14, 1981, until April 15, 1988.
State Farm appealed, and this court dismissed for lack of jurisdiction pursuant to Miller v. Safeco Ins. Co. of America, 11 Kan. App. 2d 91, 712 P.2d 1282, rev. denied 238 Kan. 878 (1986), in a memorandum opinion filed June 2, 1989. The Supreme Court granted review and, in Snodgrass v. State Farm Mut. Auto. Ins. Co., 246 Kan. 371, 789 P.2d 211 (1990), reversed this court and remanded with directions to reinstate the appeal and cross-appeal.
1. Coverage.
State Farm argues that the district court erred in denying State Farm’s motion for directed verdict because, as a matter of law, Owen did not qualify for coverage on the Camaro under the “newly acquired automobile” provision or under the “non-owned automobile” provision.
“The standard of appellate review of a motion for directed verdict requires this court to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought, and when the evidence is such that reasonable minds could reach different conclusions thereon, the motion must be denied and the matter submitted to the jury.” Anderson v. National Carriers, Inc., 10 Kan. App. 2d 203, 209, 695 P.2d 1293, rev. denied 237 Kan. 886 (1985).
In this case, this court should view the evidence in the light most favorable to Snodgrass and Hartford and determine whether reasonable minds could differ as to whether the State Farm policy should cover Owen’s car accident.
If reasonable minds could differ, then the trial court was correct in denying the motion and submitting the “matter” to the jury.
However, since the “matter” involved is coverage, and since the determination of coverage requires interpretation of the policy, we must first decide whether the policy is ambiguous. If the policy is ambiguous, we must then determine if the ambiguity in the policy presents a clear question of law or a question of fact. If the ambiguity presents a clear question of law, then the trial court should construe the contract and instruct the jury as to the rights of the parties; whereas, if the ambiguity presents an issue of fact, an instruction similar to PIK Civ. 2d 18.22 should be given to guide the jury in resolving the issue. See PIK Civ. 2d 18.22 Notes on Use.
“The construction of a written instrument is a question of law, and the instrument may be construed and its legal effect determined by an appellate court. [Citation omitted.] Whether an ambiguity exists in a written instrument is a question of law to be decided by the court.” Kennedy & Mitchell, Inc. v. Anadarko Prod. Co., 243 Kan. 130, 133, 754 P.2d 803 (1988).
State Farm argues that Owen could not qualify for coverage under the “newly acquired automobile” provision of the Cadillac policy because, pursuant to K.S.A. 1978 Supp. 8-135(c)(7), in effect at the time of this case, title to the Camaro did not pass to Owen, the result being that Owen did not become the owner of the Camaro. The newly acquired automobile provision provides in relevant part:
“Newly Acquired Automobile — means an automobile, ownership of which is acquired by the named insured ... if
(2) . . . THE NAMED INSURED WITHIN 30 DAYS FOLLOWING SUCH DELIVERY DATE APPLIES TO THE COMPANY FOR INSURANCE ON SUCH NEWLY ACQUIRED AUTOMOBILE.”
Under the definitional provisions of the State Farm policy, an “owned motor vehicle” includes a newly acquired automobile.
K.S.A. 1978 Supp. 8-135(c)(7), which is substantially identical to the current version of K.S.A. 1989 Supp. 8-135(c)(7), provided:
“It shall be unlawful for any person to buy or sell in this state any vehicle required to be registered hereunder, unless, at the time of delivery thereof or at a time agreed upon by the parties, not to exceed fifteen (15) days after the time of delivery, there shall pass between the parties such certificate of title with an assignment thereof, as herein provided, and the sale of any vehicle required to be registered under the laws of this state, without the assignment of such certificate of title, shall be fraudulent and void, unless the parties shall agree that the certificate of title with an assignment thereof shall pass between them at a time other than the time of delivery, but within fifteen (15) days thereof.”
State Farm alleges that, because Owen did not receive the certificate of title for the Camaro at the time he took delivery of the car or within fifteen days thereafter, the sale of the Camaro was void and Owen did not become an owner of the Camaro and therefore did not qualify for coverage under the owned motor vehicle liability policy. State Farm bases this argument on several cases, including Perry v. Goff Motors, Inc., 12 Kan. App. 2d 139, 736 P.2d 949 (1987). In Perry this court said:
“Kansas cases have consistently held that these provisions of the Motor Vehicle Registration Act ‘mean exactly what they say; that they are to be literally interpreted and strictly enforced; and that failure to comply therewith renders the sale of a vehicle required to be registered under the Act fraudulent and void.’ ” 12 Kan. App. 2d at 141.
This court, quoting In re Littlejohn, 519 F.2d 356, 358 (10th Cir. 1975), reiterated the policies behind the statute, which are:
“ ‘to provide a ready means for ascertaining the owner of a motor vehicle, compel payment of sales tax by the purchaser of an automobile, prevent fraud and theft of automobiles, prevent trafficking in stolen automobiles, and to lend stability to the business climate surrounding the sale of automobiles.’ ” 12 Kan. App. 2d at 141.
Although the Kansas case law seems to uniformly hold that failure to transfer title of a vehicle renders the sale void, this does not mean that an automobile buyer who fails to obtain the car’s title does not have an insurable interest.
In Maryland Cas. Co. v. American Family Insurance Group, 199 Kan. 373, 429 P.2d 931 (1967), the court dealt with a similar fact situation. In that case, Shaw, owner of a Plymouth, and Willis, owner of a Volkswagen, decided to trade vehicles. They traded cars, but Shaw retained the certificate of title on the Plymouth as security for a promissory note Willis gave Shaw. Shortly after the trade, Willis was involved in an accident in the Plymouth. The other driver who was injured in the accident brought suit against Willis and Shaw. Willis’ insurer, Maryland Casualty Company (Maryland), paid a settlement to the driver and brought suit against Shaw’s insurer, American Family Insurance Group (American Family), to recover the settlement and costs. The court held that K.S.A. 8-135(c)(6) (Corrick) (substantially identical to K.S.A. 1989 Supp. 8-135[c][7]) made the sale from Shaw to Willis void and Shaw remained the owner of the Plymouth. Consequently, the Plymouth remained an “owned automobile” subject to coverage by Shaw’s insurer. 199 Kan. at 380. In reaching this decision, the court noted that the buyer’s insurance policy may also cover the loss. 199 Kan. at 379. The court said:
“We believe there are sound reasons for applying the statute to a situation where, as here, it must be determined, despite a purported sale without compliance with the transfer statute, whether or not the seller’s insurance policy provides liability coverage while the automobile is being used by the buyer. The statute was enacted not only to protect the public against fraud and prevent traffic in the sale of stolen automobiles but also to lend stability and certainty in the business climate surrounding each transaction. The rights of those persons affected by a particular sale, such as a mortgagee or an innocent purchaser, are safeguarded by strict enforcement of such statute, and public policy would seem to dictate that the statute should be literally enforced for the protection of a third person who suffers injury at the hand of a buyer (driver) who has obtained possession and control of the automobile from the seller but has not received an assigned certificate of title as required by statute. In such case, the injured party should be entitled to the pro tection of the seller’s insurance if the buyer is operating the automobile as an additional insured under the seller’s omnibus clause. If per chance, as here, the buyer also has coverage under a separate policy issued to him on another automobile as the driver of a non-owned automobile, the injured party is protected under the buyers policy as well.” (Emphasis added.) 199 Kan. at 379.
The court refused to reach the issue of whether Willis had a separate insurable interest in the Plymouth, but did say:
“This is not to say that a purported buyer who obtains a new policy is without an insurable interest, although there has not been full compliance with the transfer statute. . . . With respect to automobile liability insurance, there is authority that the general rule requiring an insured to have an insurable interest is satisfied by the insured’s possible exposure to liability for damages incident to the use and operation of the automobile and does not depend upon his legal or equitable title in the insured vehicle.” 199 Kan. at 380-81. (Emphasis added.)
Although in the Maryland Cas. Co. case the buyer s insurer was not liable for the loss, the court seems to indicate that, in the appropriate case, the buyer’s insurer may be liable.
In its recent supplemental brief, State Farm cites Maryland Cas. Co. as supporting its position that the titling statute prevents a finding of ownership for the purpose of liability insurance coverage. While the court used the titling statute to find coverage under the seller’s insurance, it did leave the door open to an interpretation that a buyer may have an insurable interest absent compliance with the statute, based on the buyer’s possible exposure to liability for damages incident to use and operation of the automobile.
Maryland Cas. Co. also indicates that, when both a buyer and seller obtain insurance covering a car, both may be liable for damage suffered by a person involved in an accident with the buyer that occurs while the seller retains the certificate of title. Despite the ramifications of K.S.A. 1989 Supp. 8-135, it is possible for both Ball and Owen to be liable to Snodgrass. Therefore, we must review the newly acquired vehicle provision and the non-owned vehicle provision to determine if reasonable minds could differ as to whether either provision applies in this case.
Under the State Farm policy, an “owned motor vehicle” includes a newly acquired automobile.
Is Owen the owner of the Camaro? Section I of the insurance policy does not define owner. Section II of the policy includes the following definition of owner:
“Owner — means a person, other than lienholder, having property in or title to a motor vehicle, including a person who is entitled to the use and possession of a motor vehicle subject to a security interest held by another person; but such term does not include a lessee under a lease not intended as security.” (Emphasis added.)
The plain language of the insurance policy indicates that obtaining title to a vehicle is not a condition precedent to being the owner of the vehicle. Kansas case law supports this interpretation of the definition of owner. In Heshion Motors, Inc. v. Trinity Universal Ins. Co., 5 Kan. App. 2d 432, 435, 618 P.2d 327 (1980), aff'd as modified 229 Kan. 412, 625 P.2d 437 (1981), this court stated:
“It must be recognized, however, that one may actually own an automobile and thus have an insurable interest in it and yet not have legal evidence of title, this on the theory that anyone has an insurable interest in property who derives a benefit from its existence or would suffer loss from its destruction, whether or not he has any title to the property.”
State Farm cites several out-of-state cases as precedent for its contention that, as a matter of law, the newly acquired automobile provision is not applicable in this case. Those cases hold that, without title, an acquired vehicle cannot be an “owned” vehicle within the terms of a liability insurance policy.
Although relevant as illustration of other states’ interpretation of “owned,” the specific policy at issue and the Kansas law, in our opinion, interpret the word “owned” more broadly than do the cited jurisdictions. Kansas law does not mandate that the term “ownership” in an automobile insurance policy be defined strictly in accordance with K.S.A. 1989 Supp. 8-135(c)(7).
In this case, the terms “owned” or “newly acquired” vehicle were susceptible of more than one meaning, which created an ambiguity in the policy that presented a clear question of law. The trial court erred in not finding as a matter of law that the Camaro was a newly acquired vehicle. Whether Owen had taken the necessary action to obtain coverage for a newly acquired vehicle, however, was a question of fact for the jury, and, to that extent, the court correctly denied State Farm’s motion for directed verdict. Evidence supporting the denial of directed verdict is the fact that Owen bought the Camaro on July 26, 1978, took possession (delivery) within a week, and called Ayers at State Farm about insuring the car on or about August 26, 1978. In addition, a claims superintendent at State Farm recommended that State Farm cover Owen’s accident.
Could reasonable minds differ on the issue of coverage for the Camaro under the non-owned automobile provision?
A non-owned vehicle is defined as:
“Non-Owned Automobile — means an automobile, trailer or detachable living quarters unit, other than a temporary substitute automobile, not
(1) owned by,
(2) registered in the name of, or
(3) furnished or available for the frequent or regular use of the named insured, the spouse or any relative.”
State Farm argues that the Camaro was available for Owen’s frequent or regular use and therefore could not be a “non-owned automobile” under jthe insurance policy. ’ ••
In Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, Syl. ¶ 5, 681 P.2d 15 (1984), the court defined regular use as “continuous use; uninterrupted normal use for all purposes; without limitation as to use; and customary use as opposed to occasional use or special use.” The court said that determining whether the use of a non-owned vehicle is a “ ‘regular use’ ” is a question of fact. 235 Kan. 331, Syl. ¶ 4.
In this case, the facts indicate that Owen purchased the Camaro on July 26, 1978. At the time of the purchase, the Camaro was not operable. Owen towed the car to his house approximately one week after the purchase, where it remained unrepaired. Owen obtained exclusive control of keys to the Camaro within several days of the purchase of the car. Owen testified that at the time of the accident the Camaro was his car and he did not need to ask Ball for permission to drive the car. Owen said that on the day of the accident he was test-driving the Camaro after making repairs on the car.
The facts of this case support a finding, as a matter of law, that the Camaro was available for Owen’s regular use and could not be covered as a non-owned vehicle. Despite this conclusion, the district court properly denied State Farm’s motion for directed verdict because a fact question existed as to whether Owen had taken the necessary action to obtain coverage for the Camaro as a newly acquired vehicle.
The coverage issue was submitted to the jury on two different theories. Either there was coverage because the Camaro fell under the newly acquired vehicle provision or the Camaro was covered under the non-owned vehicle provision. The verdict form specified only that there was coverage. There were several important fact questions, including: when Owen took possession of the Camaro; when Owen called State Farm to insure the Camaro; and whether the call was made within 30 days. There was sufficient evidence on these questions to support a finding of coverage as a newly acquired vehicle.
On the other hand, a careful review of the record reveals no factual support for a finding that the Camaro was not available for Owen’s regular use. Although the plaintiffs went through extensive hypotheticals regarding the extent of coverage on rental cars to attempt to establish the ambiguity of the policy language, the use of the hypotheticals was never linked to the facts of the instant case. Thus, there would not be sufficient competent evidence to support a finding of coverage under the non-owned vehicle provision of the policy.
Given the two theories, one of which is not supported by the evidence, and the jury verdict finding coverage, we conclude that implicit in the jury’s verdict is a finding that the phone call by Owen to his State Farm agent was made within 30 days after delivery as required by the policy for coverage as a newly acquired vehicle. There are references in the record that Owen took possession of the car several days after he gave Ball the check on July 26. The phone call was apparently made on August 26, which would be anywhere from 24 to 31 days after possession, depending on when possession was taken. Thus, there is evidence to support the finding that the phone call was made within 30 days.
There was substantial competent evidence to support a finding that the Camaro was a newly, acquired automobile covered by the State Farm policy, and it was harmless error to submit the questions of law relating to “owned” and “non-owned” vehicle to the jury.
2. Excess judgment.
State Farm argues that the trial court erred in entering judgment against it in excess of the policy limits. State Farm’s argues that the judgment in excess of the policy limits is not traceable to State Farm’s refusal to defend and that, therefore, it should not be liable for the excess judgment.
In the suit brought by Snodgrass against Owen, State Farm refused to defend Owen. Owen was represented by independent counsel. In the present case brought by Hartford and Snodgrass against State Farm five years after their judgment against Owen, Hartford offered to settle with State Farm for State Farm’s policy limits during the trial. The settlement offer was made in front of the jury almost seven years after the judgment against Owen. State Farm rejected the settlement offer and the case went to the jury. The jury returned a verdict in favor of Hartford, finding that the State Farm policy provided coverage for Owen while driving the Camaro, that State Farm refused to defend Owen without just cause or excuse, and that State Farm’s breach of the insurance contract was negligent or in bad faith. The district court entered judgment in favor of Hartford for $300,000 plus interest for a total judgment of $574,762.30.
The jury’s finding of negligence or bad faith is not supported by substantial competent evidence. Examining State Farm’s conduct prior to judgment, as a matter of law, State Farm’s refusal to defend Owen was not a factor in the subsequent $300,000 judgment.
This court, in George R. Winchell, Inc. v. Norris, 6 Kan. App. 2d 725, 633 P.2d 1174, rev. denied 230 Kan. 817 (1981), discussed the law regarding an insurance company’s liability for a judgment in excess of policy limits for wrongful refusal to defend. This court stated:
“An automobile liability insurer who wrongfully refuses to defend an action against its insured is not liable for the amount of the judgment entered against the insured which is in excess of the insurance policy limits, absent a showing by its insured that the excess judgment is traceable to the insurer’s refusal to defend.” 6 Kan. App. 2d 725, Syl. ¶ 2.
In Winchell, James Norris caused an accident which injured the driver of a tractor-trailer. The driver brought suit against Norris. Norris’ insurer refused to defend Norris. Default judgment was entered against Norris. Subsequently, an order of garnish ment was entered against Norris’ insurer. The district court found that coverage existed under Norris’ insurance policy and entered judgment against the insurer for the policy limits. On appeal, the plaintiff argued that because the insurer wrongfully refused to defend Norris, the insurer should be liable for the judgment rendered against the insured in excess of the policy limits.
This court found that the insurer should not be liable for the judgment in excess of the policy limits. However, this court did indicate that in certain circumstances, an insurer may be liable for a judgment in excess of the policy limits. One such circumstance is when an offer of settlement within the policy limits is rejected, combined with a refusal by the insurer to defend. In reviewing this situation, this court stated:
“The leading case dealing with this point is Comunale v. Traders & General Ins. Co., 50 Cal. 2d 654, 328 P.2d 198 (1958). In Comunale, the insurer wrongfully refused to defend and a settlement offer was made to the insured that was within the policy limits. The offer was refused by the insurer. The California Supreme Court held:
‘[A]n insurer, who wrongfully declines to defend and who refuses to accept a reasonable settlement within the policy limits in violation of its duty to consider in good faith the interest of the insured in the settlement, is liable for the entire judgment against the insured even if it exceeds the policy limits.’ 50 Cal. 2d at 661.
The theory behind this position is that by refusing a settlement offer, the insurer is causing a discernible injury to the insured. A refusal to defend, in itself, can be compensated for by paying the costs incurred in the insured’s defense. But when a settlement offer is also rejected, the injury to the insured is traceable to the insurer’s breach. . . .
“Absent a settlement offer, the plain refusal to defend has no causal connection with the amount of the judgment in excess of the policy limits. If the insured has employed competent counsel to represent him, there is no basis for concluding that the judgment would have been for a lesser sum had the defense been conducted by insurer’s counsel. If there was a settlement offer within the policy limits, however, then a causal connection would exist.” 6 Kan. App. 2d at 728-29.
Although State Farm refused to represent Owen, he was represented by competent counsel in a case in which Owen’s liability was clear and Snodgrass’ injuries were extensive, and there was no offer to settle within State Farm’s policy limits. Applying the Comunale criteria, there is no basis to conclude that judgment would have been for a lesser sum if State Farm had defended Owen.
In Winchell, this court also discussed the requirement of bad faith in rejecting a settlement offer. This court said:
“As a general rule, a finding of bad faith is required for a finding of liability of amounts in excess of the policy limits. Seward v. State Farm Mutual Automobile Insurance Co., 392 F.2d 723, 726 (5th Cir. 1968). The most compelling question concerning the bad faith requirement is at what stage a finding of bad faith is required in order for it to have an effect on the insurer’s liability. A review of the cases suggests that an exercise of bad faith by the insurer in the refusal of an offered settlement is required, which makes it comparable to the situation which exists absent a refusal of a defense. A showing that bad faith was exercised when the insurer made the initial decision of whether to defend or not is not required. [Citations omitted.] In the latter situation, a wrongful refusal is enough to constitute breach. If no settlement offer is made, the existence of good or bad faith is irrelevant.” 6 Kan. App. 2d at 730.
In the instant case, there was no settlement offer prior to the judgment. Thus, there can be no finding of bad faith on the part of State Farm at that point in time. Neither was State Farm obligated to initiate settlement negotiations prior to judgment. In Smith v. Blackwell, 14 Kan. App. 2d 158, 163, 791 P.2d 1343 (1989), this court indicated that the fiduciary relationship between insured and insurer obligated the insurer to initiate settlement negotiations and attempt to arrive at a reasonable settlement. In Smith, however, the insurance company clearly had coverage, and there was no question regarding the liability of the insured. In the present case, State Farm had legitimate grounds to believe it was justified in denying coverage. An insurance company should not be required to settle a claim when there is a good faith question as to whether there is coverage under its insurance policy. If there is no coverage, there is no fiduciary relationship between the tortfeasor and the insurance company. Given State Farm’s good faith claim that its insurance policy did not cover the Camaro, it did not have to attempt to settle the claim, and there was no bad faith prior to judgment.
This does not, however, dispose of the plaintiffs’ claim against State Farm. There was an offer to settle for policy limits during the trial of this case almost seven years after judgment against Owen. The offer was disclosed to the jury and offered into evidence. State Farm rejected the offer. In a conference at the bench, the following remarks were made by plaintiffs’ counsel regarding the reason for the offer:
“The problem with this case is that Mr. Kerwick has raised the issue that if you don’t have any evidence that you made an offer to settle within the policy limits, you don’t have any right to proceed for excess. So, as part of our case in chief the claims superintendent has said that he wrote a disclaimer letter. And I take it to mean we have a right to do this at any time, it’s our position. We are now offering this as evidence to the jury that we did offer to settle within the policy limits if we can’t get it settled.”
This offer must be evaluated in light of the recent Kansas Supreme Court pronouncements of the law in Glenn v. Fleming, 247 Kan. 296, 799 P.2d 79 (1990). Glenn involved a claim against an insurer for bad faith refusal to settle a personal injury lawsuit. The plaintiff was attempting to recover the judgment in excess of Aetna’s policy limits and based his claim on Aetna’s failure to settle for its policy limits prior to judgment.
In evaluating the offer to settle, the court stated the following rules:
“The question of an insurer’s liability for an excess judgment depends upon the circumstances of the particular case and must be determined by taking into account the various factors present rather than on the basis of any general statement or definition.
“The conduct of the insurer must not be viewed through hindsight. Instead, the offer and the strength of the plaintiff’s case must be viewed as they fairly appeared to the insurer and its agents and attorneys at the time the offer was refused. [Citations omitted.]
“An insurance company acting honestly and in good faith upon adequate information should not be held liable because it failed to prophesy the result. Something more than mere error of judgment is necessary to constitute bad faith.” 247 Kan. at 305-06.
The trial court in Glenn evaluated the offer to settle and determined that no bad faith liability could arise from an insurer’s failure to accept an unreasonable offer. The court then found the offer to be unreasonable because it was conditional, premature, and only open for two weeks. The Kansas Supreme Court agreed.
In the instant case, State Farm argues that under George R. Winchell, Inc. v. Norris, 6 Kan. App. 2d 725, there can be no causal link between the failure to settle during the subsequent trial in this case and the earlier entry of the judgment in the case against Owen. Therefore, State Farm cannot be liable for the excess. The factual situation, however, was different in Winchell, and such a mechanical application of the holding would not be appropriate. Winchell examined the liability of an insurer for a wrongful failure to defend its insured and determined there was no liability absent a showing of damages traceable to the breach. 6 Kan. App. 2d 725, Syl. ¶ 2. In Winchell, there was no settlement offer, and it was determined the judgment was not traceable to the wrongful refusal to defend. 6 Kan. App. 2d 725, Syl. ¶ 3. This rule was established in a case assessing the bad faith of an insurer prior to judgment. As the analysis above indicates, Winchell continues to be a valid case for its stated proposition of addressing the insurer’s actions prior to entry of judgment but should not be extended to cut off inquiry into the insurer’s post-judgment conduct.
In addition, the public policy of requiring insurers to give ‘[f]air and equal consideration [to] the insured’s vulnerable position’ ” would not be furthered by adopting State Farm’s position. Smith v. Blackwell, 14 Kan. App. 2d at 163. In the instant case, there was no covenant not to execute, so theoretically Owen could be subjected to the excess liability by State Farm’s failure to accept a settlement offer even after judgment. Thus, State Farm’s refusal to settle at trial should be analyzed in light of the law set forth in Glenn v. Fleming, 247 Kan. 296.
It is clear on the facts of this case that there was no negligence or bad faith on the part of State Farm. By finding coverage for Owen, this court recognizes it goes beyond any current Kansas case law in holding that, absent specific reference in a motor vehicle insurance policy, K.S.A. 1989 Supp. 8-135 (c)(7) is not applicable when determining liability coverage based on “ownership” of or “insurable interest” in a motor vehicle. State Farm had a good faith argument that its policy did not provide coverage for the Camaro, and, as the court in Glenn stated, State Farm should not be held liable for failing to “prophesy the result.” 247 Kan. at 305. Further, there is the issue of Owen’s bankruptcy. Because of a motion in limine, no evidence of the bankruptcy was admitted at trial. State Farm, however, had that information, and consideration of the bankruptcy must have entered into State Farm’s decision in rejecting the settlement offer.
In short, viewing the offer and the circumstances and reason it was made and assessing the strength or weakness of the plaintiffs case on the question of coverage, it was not unreasonable for State Farm to believe that, under Kansas statutory and case law, it did not have coverage. Likewise, because of Owen’s bankruptcy, State Farm could reasonably conclude that its refusal of the offer would not impact on Owen’s liability.
Even beyond State Farm’s good faith belief it did not have coverage on the Camaro, the offer itself was unreasonable, and rejection of an unreasonable offer cannot give rise to bad faith liability. See Glenn v. Fleming, 247 Kan. at 307. The offer was staged because State Farm was predicating no liability on the basis that no settlement offer had ever been made. A settlement offer was presented during trial and, subsequently, presented to the jury. There was limited time to consider the offer, and it was only offered as evidence to show the jury that State Farm rejected an offer. On either basis, State Farm was acting in good faith and upon adequate information in rejecting the offer. Thus, State Farm is not liable for that portion of the judgment that exceeds its policy limits.
State Farm, in its most recent brief, concedes that, if coverage is found, it owes interest on the whole judgment pursuant to the terms of its policy and the rule stated in Glenn v. Fleming, 247 Kan. at 319.
3. Jury Instructions.
State Farm argues that the district court erred in giving the following instruction (No. 15) to the jury: “This case involves the interpretation of a policy of insurance. Where the terms of a policy of insurance are susceptible of more than one construction, the construction most favorable to the insured must prevail.” State Farm first argues that while the instruction may be a correct statement of the law, the principles stated do not apply when the policy is unambiguous. State Farm contends that only the trial judge, not the jury, can determine whether a policy is ambiguous and that the trial judge here abdicated his judicial authority by letting the jury decide the issue of ambiguity.
State Farm then argues that the meaning of “regular and frequent use” has been held to be unambiguous, citing Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, 681 P.2d 15 (1984).
However, Instruction No. 15 was given without reference to any particular language in the policy. The instruction could be used by the jury to interpret any term in the policy.
If any term in the insurance policy could be viewed as ambiguous by the jury, the instruction was proper. In this case, the parties were in dispute as to whether Owen was an “owner” of the Camaro. The State Farm policy defined “owner,” but at trial, State Farm argued that Owen was required to obtain the Camaro’s certificate of title to qualify as an “owner” under the policy. The jury could reasonably find that the term “owner” was susceptible to more than one meaning. Although the trial judge should have first made a finding that the policy was ambiguous before submitting the instruction, the issue regarding “owner” supports our conclusion that the judge implicitly found the policy to be ambiguous when he submitted the instruction.
State Farm argues that the district court erred in giving the following instruction (No. 16): “The term regular use, as it is used in the definition of ’Non-Owned Automobile’ means continuous use; uninterrupted normal use for all purposes; without limitation as to use; and customary use as opposed to occasional use or special use.” State Farm suggests that the instruction is incomplete and should include a definition of “furnished for regular use.”
The instruction given by the trial court was taken from Central Security Mut. Ins. Co. v. DePinto, 235 Kan. 331, Syl. ¶ 5, which defined regular use as “continuous use; uninterrupted normal use for all purposes; without limitation, as to use; and customary use as opposed to occasional use or special use.”
State Farm fails to show how the trial court erred in giving Instruction No. 16 or how the instruction prejudiced State Farm. The jury instruction is a fair interpretation of the law. The district court did not err in giving the instruction.
State Farm argues that the trial court erred in giving Instruction No. 12. When the district court proposed Instruction No. 12, counsel for State Farm said, “We [object], Your Honor — I withdraw my objection. 12 is acceptable, Your Honor.”
“The rule is well established in this state that a party may not assign as error the giving or failure to give an instruction unless he objects to the instruction stating the specific grounds for the objection. Absent such objection, an appellate court may reverse only if the trial court’s failure to give the instruction was clearly erroneous.” State v. Holley, 238 Kan. 501, 506, 712 P.2d 1214 (1986).
“ ‘An instruction is clearly erroneous when a reviewing court reaches a firm conviction that if the trial error had not occurred, there was a real possibility that the jury would have returned a different verdict.’ ” State v. Patterson, 243 Kan. 262, 268, 755 P.2d 551 (1988).
In this case, State Farm did not properly object to Instruction No. 12 or give specific grounds for the objection. The record does not indicate that, absent the giving of Instruction No. 12, the jury would have returned a different verdict. The district court did not err in giving Instruction No. 12.
4. Expert witness.
The plaintiffs called Bill Hensley, Snodgrass’ attorney in the action against Owen and Hartford, to testify as an expert. State Farm now argues that it was error to allow his testimony. State Farm does not specifically indicate what was improper about the testimony. During Hensley’s testimony, State Farm objected twice. The first question objected to was not answered. The only other objection State Farm lodged during Hensley’s testimony was made when Hensley was asked to explain why, as Snodgrass’ attorney, he had alleged in an amended petition that Owen was uninsured. The following exchange occurred:
“Q. [Snodgrass’ and Hartford’s counsel] How does Number 4 relate to the facts of this case?
“[State Farm’s counsel] I object, Your Honor. It is improper opinion and, again, the petition speaks for itself.
“THE COURT: He is an expert. I’ll let him answer.
“A. Simply stated, you really don’t have to be an expert, but this is — this means that to make the allegations that we made in the First Amended Petition, we didn’t have to make the ultimate decision that you Ladies and Gentlemen of the Jury and Judge Kimmel are going to make in this case.
“Number one, the fact that State Farm had denied coverage under Paragraph 4 of the uninsured motor vehicle definition all by itself justified and authorized joining whatever the name of that company is, State Automobile Insurance Company of Hartford, or whatever Aetna’s sub was, as a defendant in Billy’s case.”
“The trial court has wide discretion in allowing the testimony of expert witnesses and the use of such testimony ordinarily goes to the weight of the evidence and not its admissibility.” Kearney v. Kansas Public Service Co., 233 Kan. 492, Syl. ¶ 6, 665 P.2d 757 (1983). The opinion of an expert should be considered by the jury, and given the weight which the jury deems proper. An expert opinion may be disregarded. In re Adoption of Irons, 235 Kan. 540, Syl. ¶ 2, 684 P.2d 332 (1984). In this case, the trial court did not abuse its discretion by allowing Hensley’s testimony with regard to the reason for amending the petition.
5. Rental car evidence.
State Farm objects to the relevancy of hypothetical questions relating to policy coverage when driving rental cars and letters concerning the same subject from a State Farm representative. Relevancy of testimony and other evidence rests within the trial court’s discretion; in these instances, the trial court did not abuse its discretion.
6. Attorney fees.
State Farm argues that the trial court erred in awarding attorney fees on a “50-50” contingency basis.
No appeal or cross-appeal was taken from the May 2, 1988, order awarding attorney fees. Following the Supreme Court decision in this case, attorney fees at the district court level are no longer an issue on appeal.
1. Cross-appeal: jury instructions.
In its cross-appeal, Hartford alleges that, in the event this court sets aside the jury’s verdict and remands the case for a new trial, this court should consider whether the district court erred in refusing to give Hartford’s requested jury instructions relating to whether the limiting phrase “furnished or available for the frequent or regular use of” is an “appropriate reference” as the term “appropriate reference” is used in K.S.A. 40-3107(a).
This court will not find error with jury instructions unless the instructions resulted in prejudice to the appealing party. Trout v. Koss Constr. Co., 240 Kan. 86, 88-89, 727 P.2d 450 (1986). Since we are affirming the jury verdict against State Farm on the issue of coverage, Hartford, as the prevailing party, cannot show prejudice resulting from the district court’s refusal to give its requested instructions. The district court did not err in refusing to give Hartford’s instructions.
2. Cross-appeal: additional attorney fees on appeal.
The second issue raised by Snodgrass and Hartford concerned the amount of attorney fees awarded. The notice of cross-appeal did not specify the fee amount as an issue. This court initially concluded, and the Supreme Court agreed, that the issue was not preserved for appeal and would not be considered.
Hartford and Snodgrass filed a motion for attorney fees on appeal pursuant to Supreme Court Rule 7.07(b) (1990 Kan. Ct. R. Annot. 37), which provides: “Appellate courts may award attorney fees for services on appeal in any case in which the trial court had authority to award attorney fees.” Hartford and Snodgrass argue that the district court had authority to award fees pursuant to K.S.A. 40-256 and request this court to do the same.
The district court awarded Hartford attorney fees pursuant to K.S.A. 40-256 in the amount of $144,000. The trial court included attorney fees for services to be rendered in pursuing an appeal. This court decided that, as no appeal was taken from the May 2, 1988, order awarding attorney fees, attorney fees were no longer an issue on appeal. The Supreme Court affirmed this holding. The motion for additional attorney fees on appeal is denied.
We affirm the finding of coverage, reverse the judgment in excess of policy limits, dismiss the issue of attorney fees awarded by the trial court, deny the motion for additional attorney fees on appeal, and affirm all remaining issues. | [
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Larson, J.:
Jorge A. Cruz and Juan Tomas De La Cruz appeal their convictions of possession of cocaine with intent to sell. K.S.A. 1988 Supp. 65-4127a.
On February 23, 1989, Bob Pierce notified the Wichita Police Department of a possible burglary in the vacant house next to his. He had observed a black male wearing dark clothing and a dark ball cap enter the house and leave five minutes later. Officer Wahl responded to the call.
Officer Wahl spoke briefly to Pierce, who told him he saw a man wearing a red ball cap enter the house. Officer Wahl went to the front door of the house, knocked, and tried to open' the door. As he turned to leave, the door opened.
Jorge and Juan Tomas were standing in the doorway. One of them was wearing a red ball cap. Officer Wahl tried to communicate with and obtain identification from Jorge and Juan Tomas, who did not appear to understand English. Jorge and Juan Tomas stepped back into the house and Officer Wahl stepped onto the front landing of the entryway as he continued to attempt to obtain identification. After a conversation in Spanish between Jorge and Juan Tomas, which Officer Wahl did not understand, Juan Tomas began walking toward the rear of the house out of the officer’s line of vision. Fearing that Juan Tomas would attempt to escape, the officer took Jorge by the coat and followed Juan Tomas to the back of the house.
Juan Tomas went to the basement but came back up in four or five seconds. Officer Wahl heard what he thought was a wooden object hitting the basement floor. The three returned to the living room where they waited for back-up officers to arrive.
When back-up Officers White and Runft arrived, Officer Wahl left to talk with neighbors. Learning nothing, Officer Wahl went back to the house and down into the basement to check out the noise he had heard earlier. He saw what appeared to be part of a gun sticking out between cushions on a sofa. He removed the cushions and discovered plastic bags and scales. He left the items as he found them.
Jorge and Juan Tomas were taken to the police station, and a search warrant was obtained for the house. Officer Cutliff executed the warrant and found in the basement a gun, scales, plastic bags, 1.8 pounds of 87 to 98 percent pure cocaine in a bag under the stairs, and 3 letters. Upstairs, $710 in cash was found under the carpet in a bedroom and a key ring was found in the closet of the bedroom. Kenneth Holmes, the landlord, recognized three of the keys as the keys he gave to a lady named Maria Garcia, who had rented the place with the assistance of Holmes’ tenant Penny Comacho.
A search of the residence failed to turn up paraphernalia for scooping or measuring the cocaine or any substance for “cutting” the cocaine. Attempts to match latent fingerprints found on a plastic shopping bag with those of either Jorge or Juan Tomas failed, as did an attempt to match palm prints to either of the defendants.
The house was one of many rental properties owned by Holmes. Through Comacho, a tenant who helped him locate other tenants for his properties, Holmes rented the house to Garcia on February 16, 1989. Holmes testified that, several days after he had rented the house to Garcia, the house appeared to be unoccupied.
At the time of the arrest, there was no furniture, food, or clothing in the house. There were some curtains or sheets nailed to the windows. Comacho testified that Jorge and Juan Tomas had been with her and Garcia earlier in the day and that Garcia, Jorge, and Juan Tomas had gone to the house to hang curtains.
Garcia has apparently left the Wichita area and did not testify at either the hearing on the motion to suppress or the trial.
Officer Cutliff and Detective Derby testified that in their opinions the house was being operated as a “safe house” where drugs are warehoused for distribution to sellers.
Jorge and Juan Tomas were tried jointly and convicted of possession of cocaine with intent to sell. Their motions to suppress and motions for directed verdict were denied. Neither defendant presented any evidence. Motions for new trial were denied and each defendant was sentenced to 3 to 10 years’ imprisonment. Both appealed.
Separate counsel represented Jorge and Juan Tomas at trial and on appeal.
Juan Tomas raises five issues on appeal: (1) Did the trial court err in allowing the prosecution to proceed on its submitted bill of particulars; (2) did the trial court err in admitting testimony regarding “safe houses”; (3) did the trial court err in failing to grant his motion for judgment of acquittal; (4) did the trial court err in denying his motion to suppress evidence; and (5) did the trial court err in instructing the jury regarding possession?
Jorge claims on appeal that (1) the evidence was insufficient to support the jury’s finding of guilt when there was no evidence that he possessed the drugs and the trial court erred in failing to grant his motion for judgment of acquittal following the presentation of the State’s case, and (2) the trial court erred in giving an erroneous instruction and in refusing to properly instruct the jury on the definition of possession.
Although we reach our ultimate decision by the determination of Jorge’s first issue and Juan Tomas’ third, we must first consider the propriety of denying the motion to suppress and admission of the evidence regarding “safe houses.”
Did the trial court err in denying the motion to suppress the evidence?
Both defendants moved to suppress, contending all physical evidence seized was inadmissible as fruit of the poisonous tree, Wong Sun v. United States, 371 U.S. 471, 9 L. Ed. 2d 441, 83 S. Ct. 407 (1963), because the original entry into the home was impermissible without a search warrant and probable cause for the subsequent search warrant was based on information obtained as a result of the original warrantless entry.
The evidence at the suppression hearing did not show any lawful reason for the defendants to be on the premises where they were arrested. Based on that evidence, the trial court reached the following decision:
“This Court finds that the defendants, Juan Tomas Déla Cruz, @Tomas Olivo and Jorge A. Cruz @George A. Cruz were trespassers at the residence at 3203 Wellington Place in Wichita, Sedgwick County, Kansas.
“As trespassers they have none of the rights of a person occupying premises as a home owner or a tenant. Therefore, the extra ordinary protection[s] afforded persons in lawful possession are not applicable in this case.
“The defendants’ Motion to Suppress evidence is denied.”
Defendants had attempted to subpoena Comacho to testify at the suppression hearing but claimed to have been unable to locate or serve her, although her whereabouts was known to the State, which had subpoenaed her as a trial witness. Defendants asked for the hearing to remain open or be subject to reopening after Comacho’s testimony was received. The trial court, facing the start of the trial, made the above ruling, which was clearly correct. Trespassers have not been granted Fourth Amendment rights because they do not have a reasonable expectation of privacy in the property. See United States v. Ray, 734 F.2d 108 (2d Cir. 1984); G. R. v. State, 638 P.2d 191, 197 (Alaska App. 1981) (Stolen car cases were relied upon by analogy in holding that a defendant who was at the time an escaped felon had no standing regarding the car he was driving when apprehended because he was, at the time, “a trespasser on society'.”).
At trial, Comacho testified as a State’s witness that both defendants had been employed by Garcia, the tenant of the property, to install curtains on the windows of the involved premises. Comacho said Garcia purchased curtains at a secondhand store but did not have curtain rods. The hammer and nails found in the house substantiate this story.
Once Comacho testified, the defendants renewed their motions to suppress, and the trial court said its ruling would remain the same. The reasoning on which the trial court based its ruling was clearly erroneous, for the State had then established that both defendants were lawfully on the premises as employees. Nevertheless, “[t]he reasons given by the district court for its decision are immaterial so long as its ruling was correct for any reason.” Prairie State Bank v. Hoefgen, 245 Kan. 236, 245, 777 P.d 811 (1989); D-1 Constructors, Ltd. v. U.S.D. No. 229, 14 Kan. App. 2d 245, 246, 788 P.2d 289 (1990).
Neither Jorge nor Juan Tomas presented any evidence which connected them to the premises in any manner other than as employees of Garcia, so we must consider if such status gives them standing to raise a Fourth Amendment objection.
Our modem constitutional law of standing begins with Jones v. United States, 362 U.S. 257, 263-67, 4 L. Ed. 2d 697, 80 S. Ct. 725 (1960), which announced a two-part rule of “automatic” standing for (1) any defendant who admitted the same type of possessory interest the prosecution was required to prove in order to establish an essential element of the crime charged or (2) anyone who was legitimately on the searched premises.
Jones remained the law for less than 20 years and the theory of “automatic” standing was abandoned and rejected by later decisions of the United States Supreme Court, which were summarized by Justice Prager in State v. Whitehead, 229 Kan. 133, 136, 622 P.2d 665 (1981), in the following manner:
"In Rakas v. Illinois, 439 U.S. 128, 58 L.Ed.2d 387, 99 S.Ct. 421 (1978), rehearing denied 439 U.S. 1122 (1979), the court found the standing conferred in Jones because the defendant was ‘legitimately on the premises’ to be too broad. The court stated that the ‘capacity to claim the protection of the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place.’ p. 143. (Emphasis supplied).
“In United States v. Salvucci, 448 U.S. 83, 65 L.Ed.2d 619, 100 S.Ct. 2547 (1980), the court specifically rejected the ‘automatic standing’ rule of Jones. As noted above, the rule of Jones conferred ‘automatic standing’ when the element of possession was also an element of the criminal charge. The court in Salvucci approved Rakas, stating that an illegal search can only violate the rights of those who have a ‘legitimate expectation of privacy in the invaded place.’ The basic test to determine whether or not a person present on the premises at the time of a search has standing to challenge the validity of the search is not whether that person ‘had a possessory interest in the items seized, but whether he had an expectation of privacy in the area searched.’ 448 U.S. at 93.
“This court has also recognized that the Fourth Amendment right to protection from unreasonable searches is based upon the individual’s right of privacy (State v. Chiles, 226 Kan. 140, 146, 595 P.2d 1130 [1979]), and that one does not have standing to challenge a search where there is no expectation of freedom from intrusion (State v. Gordon, 221 Kan. 253, 258, 559 P.2d 312 [1977]).” 229 Kan. at 136.
The court went on in Whitehead to hold that “where, at the time an apartment was searched by police, the defendant was dressed in his pajamas, clothing of defendant was found in the closet, and defendant stated he lived there on an irregular basis, the defendant had a legitimate expectation of privacy in the area searched which gave him standing to challenge the legality of the search under the Fourth Amendment to the United States Constitution.” 229 Kan. 133, Syl. ¶ 3.
The Kansas Supreme Court, in State v. Worrell, 233 Kan. 968, 666 P.2d 703 (1983), vacated an order suppressing seized evidence in holding the defendant did not have an expectation of privacy in the upper floors of a family corporation-owned warehouse of which he was the manager. Worrell had an office on the first floor of the warehouse, which was being utilized in the wholesale building materials business; the third and fourth floors, where spent cartridges and a slug were seized, were inhabited by pigeons and were empty except for some stacked pallets and discontinued displays. Worrell had no personal property stored on the floors where the evidence was found nor were any business records located there.
The evidence below shows no connection between Jorge and Juan Tomas and Garcia except that of employees and employer. Comacho testified that Jorge and Juan Tomas were to be paid for their services, which they appeared to be in the process of performing when Officer Wahl appeared. The factual situation here is much closer to that in Worrell than in Whitehead.
Juan Tomas argues that the decision in State v. Epperson, 237 Kan. 707, 703 P.2d 761 (1985), which allowed standing to a defendant who did not admit possession or control of premises, controls here. We believe Epperson to be factually distinguishable. Epperson was the passenger in Auerbach’s automobile. Auerbach’s rights were violated and the evidence obtained from the search of his car was properly suppressed. Justice Miller reminded us in the opinion that “[t]he proponent of a motion to suppress evidence has the burden of establishing that his own Fourth Amendment rights were violated by the challenged search and seizure,” 237 Kan. at 717, and then ruled that Epperson had failed to carry that burden.
Notwithstanding his lack of standing, the evidence seized from the search of the car was suppressed as to Epperson but for reasons which do not benefit Jorge and Juan Tomas. The initial stops of both Auerbach and Epperson while outside the car were illegal. This was the basis for the subsequent suppression, that followed the cases that hold a passenger has standing to challenge a search where the motor vehicle and its passengers were improperly stopped. 237 Kan. at 717-18.
The officer herein thought he was investigating a burglary or, at the least, a trespassing. We are not prepared to hold that the initial investigation in this case is an unlawful stop. The officer was making a reasonable investigation based on a bona fide complaint which justifies the initial confrontation. The inability of the parties to communicate verbally does not require that suspected trespassers or burglars should be allowed to escape. The decisions in cases involving automobiles are not always totally reconcilable with those involving residences but, as to the standing issue, Epperson provides more comfort to the State’s position than support for Juan Tomas’ argument.
Cases from other states have recognized that an employee has no standing to challenge the legality of a search of the employer’s premises. Tobias v. State, 479 N.E.2d 508 (Ind. 1985) (pharmacist employed in his father’s drug store had no expectation of privacy in public restroom of store); and People v. Gordon, 128 Misc. 2d 1030, 492 N.Y.S.2d 654 (1985) (employee of Ben Jack Auto Collision did not have standing to challenge seizure of drugs from his employer’s office). But see State v. Anonymous, 40 Conn. Supp. 20, 480 A.2d 600 (1984), (babysitter for child of occupants of apartment had a socially acceptable expectancy of privacy sufficient to enable her to exclude others from the apartment and thus had standing to attack the legality of a search made with a warrant but in violation of a “knock and announce” rule).
One other Kansas case deserves to be mentioned. In State v. Huber, 10 Kan. App. 2d 560, 566, 704 P.2d 1004 (1985), the search was authorized by a search warrant but an expectation of privacy, which society was prepared to recognize as reasonable, was found to exist as to the pockets of the defendant’s jacket which was lying within his reach. The seized items were held to be in plain view and, thus, the search of the jacket was deemed proper. This is again factually different from our case. None of Juan Tomas’ possessions were found in the house as were those of the defendant in Whitehead.
The burden was on Juan Tomas to show he exhibited an expectation of privacy in the Holmes-owned, Garcia-rented residence. Under Simmons v. United States, 390 U.S. 377, 19 L. Ed. 2d 1247, 88 S. Ct. 967 (1968), a defendant may testify at the suppression hearing to establish his standing to challenge his search without jeopardizing his defense at trial. This Juan Tomas did not do, nor was he compelled to do, but from the evidence available to the court it is clear that Juan Tomas, as Garcia’s employee, did not have a reasonable expectancy of privacy and his Fourth Amendments rights were not violated because the Fourth Amendment was not applicable. See Moylan, Fourth Amendment Inapplicable or Satisfied, 40 S. Ill. U.L.J. 75 (1977).
Juan Tomas also argues the State could not proceed in an inconsistent manner and contend at the trial that constructive possession with intent to sell existed but deny that Juan Tomas had any legitimate expectation of privacy (standing) in opposing the motion to suppress. This contention is without merit.
With the rule of automatic standing for possessory crimes abolished and the right of a defendant to testify at his suppression hearing without jeopardizing his defense at trial, “a prosecutor may simultaneously maintain that a defendant criminally possessed the seized goods, but was not subject to a Fourth Amendment deprivation, without legal contradiction.” United States v. Salvucci, 448 U.S. 83, 90, 65 L. Ed. 2d 619, 100 S. Ct. 2547 (1980).
Under the current standing rules it is not fatally inconsistent for the State to contend defendant possessed an illegal substance in a place where the defendant did not have a legitimate expectation of privacy.
The factual determination of whether there is a reasonable expectation of privacy is different and distinct from the determination of whether an item is within the possession of the defendant. All the State proved herein is that Juan Tomas was lawfully in the premises installing curtains, which does not give him any expectation of privacy over the seized items. Whether the same proof provides a justifiable basis for the conviction of possession of cocaine with intent to sell is a separate issue which we will consider.
Did the trial court err in admitting testimony regarding “safe houses”?
Both defendants filed motions in limine, which were denied, and objected at trial to testimony advising the jury that the house of arrest was a “safe house” used to sell drugs without detection.
The trial court ruled that the only foundation required for the testimony on safe houses was for the officers to have reason to know about them based on their experience and training and that such testimony be relevant and material. On appeal, Juan Tomas primarily objects to the opinion evidence because it did not have sufficient foundation.
Whether a witness is qualified as an expert witness and whether the witness’ testimony and opinion are admissible are determinations left to the sound discretion of the trial court. The decision of the trial court will not be disturbed on appeal absent an abuse of that discretion. State v. Bright, 229 Kan. 185, 190, 623 P.2d 917 (1981); State v. Waufle, 9 Kan. App. 2d 68, Syl. ¶ 3, 673 P.2d 109 (1983).
Before a witness may testify on a matter there must be evidence that the witness has personal knowledge thereof or experience, training, or education if such is required. K.S.A. 60-419. An expert witness’ opinion is limited to an opinion based on facts or data perceived by or personally known or made known to the witness at the hearing and within the scope of the special knowledge, skill, experience, or training possessed by the witness. K.S.A. 60-456(b).
Juan Tomas contends Officer Cutliffs and Detective Derby’s training and experience were nonspecific and unreliable and their testimonies were contradictory, making their opinions mere speculation. Juan Tomas also objects to the weight and credibility to be afforded to the officers’ opinions.
Cutliff had been with the Wichita Police Department for over eight years with four years of work in narcotics, including two years with the Drug Enforcement Administration (DEA). He had learned about safe houses during a two-week DEA course, but he did not recall the time spent on the topic. He also testified he had visited safe houses and spoken with violators and informants as a basis for his knowledge.
Derby testified he had been a police officer for eight years with six months in the narcotics division. He had also attended a two-week DEA course and visited safe houses as a part of his investigative work.
Both officers were extensively questioned on voir dire and cross-examined. The differences between a typical safe house and the facts in this case with the perceived contradiction were examined and pointed out to the jury. We are not prepared to rule that the presentation of this evidence constituted an abuse of the trial judge’s discretion.
Juan Tomas persuasively compares the testimony regarding the general characteristics of a safe house in this case with the inadmissible testimony offered describing the characteristics of a typical offender in other cases. See Florida v. Royer, 460 U.S. 491, 75 L. Ed. 2d 229, 103 S. Ct. 1319 (1983); United States v. Sokolow, 490 U.S. 1, 104 L. Ed. 2d 1, 109 S. Ct. 1581 (1989). He contends the opinion testimony that this was a safe house is the only proof the State offered that Juan Tomas had knowledge, dominion, and control over the drugs found in the basement.
In State v. Clements, 244 Kan. 411, 770 P.2d 447 (1989), the Kansas Supreme Court considered whether evidence of the profile of a typical offender was admissible. Justice Lockett concluded that it was reversible error to allow evidence from which the only inference that could be drawn was that, if the defendant fit the profile of a typical offender, the defendant was guilty. Such an inference is impermissible as it has no bearing on the question of whether a particular defendant is guilty of the crime charged. 244 Kan. at 420-21.
The decision in Clements is factually distinguishable. Evidence that the house was a safe house does not prove the guilt of the defendants. This provides no direct substantial evidence that Juan Tomas intended to sell the drugs located therein.
It was not inappropriate for the opinions of the officers to be allowed on a topic which is outside of a normal person’s knowledge. It was not an abuse of discretion to allow the testimony that the place where the defendants were found was being operated as a “safe house.” The testimony may have gone to prove that someone was selling cocaine from the premises, but it presents no inference that the sellers were the defendants.
Was the evidence insufficient to support a finding of guilt and did the trial court err in refusing to grant motions of acquittal?
This issue is argued by both defendants. Jorge argues there was no evidence he possessed the drugs while Juan Tomas claims a judgment of acquittal was required because the State inferred possession with intent to sell from mere presence on the premises.
“ ‘A trial judge in passing upon a motion for judgment of acquittal must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable in ferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes guilt beyond a reasonable doubt is a fairly possible result, he must deny the motion and let the jury decide the matter. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion.’ ” State v. Colbert, 221 Kan. 203, 209-10, 557 P.2d 1235 (1976). See K.S.A. 22-3419.
A motion for judgment of acquittal is substantially the same as a motion attacking the sufficiency of the evidence. State v. Dubish, 234 Kan. 708, 715, 675 P.2d 877 (1984).
“A conviction of even the gravest offense may be sustained by circumstantial evidence. [Citation omitted.] When the sufficiency of the evidence is challenged, the standard of review on appeal is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt.” State v. Graham, 247 Kan. 388, 398, 799 P.2d 1003 (1990).
The essential elements of the charge of violating the Uniform Controlled Substances Act in addition to time and place are that:
1. The defendant possessed cocaine, and
2. the defendant did so with the intent to sell it.
See PIK Crim. 2d 67.14.
The due process clause of the Fourteenth Amendment requires proof beyond a reasonable doubt of each element of the crime charged. In re Winship, 397 U.S. 358, 25 L. Ed. 2d 368, 90 S. Ct. 1068 (1970). Because all that the State proved was that Jorge and Juan Tomas had been employed by Garcia to install curtains in the house she had rented from Holmes, it is critical to determine if the evidence establishes beyond a reasonable doubt that “possession” was shown and that the cocaine was possessed with intent that it be sold. This brings into direct focus the holdings of our cases where possession and control are critical issues.
“Possession of a controlled substance requires having control over the substance with knowledge of and the intent to have such control. Knowledge of the presence of the controlled substance with the intent to exercise control is essential.
“Control as used in K.S.A. 65-4127a means to exercise a restraining or directing influence over the controlled substance.” State v. Flinchpaugh, 232 Kan. 831, Syl. ¶¶ 1, 2.
See State v. Washington, 244 Kan. 652, 654.
“Possession” of [a controlled substance] is having control over the [controlled substance] with knowledge of, and intent to have, such control. Possession and intent, like any element of a crime, may be proved by circumstantial evidence. [Citation omitted.] Possession may be immediate and exclusive, jointly held with another, or constructive as where the drug is kept by the accused in a place to which he has some measure of access and right of control. [Citation omitted.]’ ” State v. Rose, 8 Kan. App. 2d 659, 664, 665 P.2d 1111, rev. denied 234 Kan. 1077 (1983)(quoting State v. Bullocks, 2 Kan. App. 2d at 49-50.
“When a defendant is in nonexclusive possession of premises on which drugs are found, the better view is that it cannot be inferred that the defendant knowingly possessed the drugs unless there are other incriminating circumstances linking the defendant to the drugs. [Citation omitted.] Such parallels the rule in Kansas as to a defendant charged with possession of drugs in an automobile of which he was not the sole occupant. [State v. Faulkner, 220 Kan. 153, 551 P.2d 1247 (1976).] Incriminating factors noted in Faulkner are a defendant’s previous participation in the sale of drugs, his use of narcotics, his proximity to the area where the drugs are found, and the fact that the drugs are found in plain view. Other factors noted in cases involving nonexclusive possession include incriminating statements of the defendant, suspicious behavior, and proximity of defendant’s possession to the drugs.” Bullocks, 2 Kan. App. 2d at 50.
None of the incriminating factors referred to above are present in this case. There was no evidence connecting either defendant with the cocaine, baggies, scales, or money found in the house. There was no evidence they ever made or attempted sales of drugs or that informants or undercover agents had purchased drugs from them. No connection was made between the defendants and the money found nor with the letters seized.
Juan Tomas would not have had sufficient time to hide the drugs during his four to five seconds in the basement and the only connection of Jorge to the drugs is by his presence in a supposed safe house.
In other Kansas cases dealing with constructive possession, more than mere presence or access to the drugs has been required to sustain a conviction. In State v. Rose, 8 Kan. App. 2d at 664, defendant was found to possess marijuana although he did not live in the house where it was found or possess a key to the house. The record was replete with testimony that Rose was a principal in a marijuana growing and processing operation, that he was on the premises almost daily, and that large sums of money were kept in a safe at the house which could not be opened without Rose’s presence and participation.
In State v. Bullocks, the defendant was found to possess marijuana discovered in a trailer located in the yard of the house in which he lived. The evidence was that the trailer was the defendant’s and that drug paraphernalia found in the house was in plain view, which tended to show not only knowledge and intent but probable use as well. 2 Kan. App. 2d at 49-50.
In State v. Walker, 217 Kan. 186, 190, 535 P.2d 924 (1975), the defendant was found to constructively possess heroin, which was found in the bedroom of a house that only he occupied.
In State v. Flinchpaugh, the Kansas Supreme Court affirmed the lower court’s dismissal of the charge of possession of cocaine. The charge had been based on the presence of cocaine in the defendant’s blood sample. In discussing the State’s claim that the presence of the drug in the defendant’s bloodstream was sufficient circumstantial evidence of possession, the court stated:
“[Kjnowledge is an essential ingredient of the crime of illegal possession of a controlled substance. The defendant must know of the presence of the controlled substance. State v. Faulkner, 220 Kan. at 156. The intent to possess, to appropriate the drug to oneself, constitutes the requisite mental attitude for conviction of possession. State v. Metz, 107 Kan. at 596.” 232 Kan. at 835.
The evidence, tested as we must on appeal, does not give rise to or justify the inference which allows a finding of guilt beyond a reasonable doubt.
While the factors previously referred to are sufficient to require reversal of the convictions, it is also reversible error to allow the jury to speculate on unjustifiable inferences. Guilt may never be based on inference alone. Presumptions and inferences may be drawn from facts established, but presumption may not rest upon presumption or inference on inference. State v. Doyle, 201 Kan. 469, Syl. ¶ 8, 441 P.2d 846 (1968).
Our Kansas Supreme Court in State v. Williams, 229 Kan. 290, 623 P.2d 1334, reh. denied 229 Kan. 646, 630 P.2d 694 (1981), reversed a jury conviction of aggravated burglary and felony murder and recognized it is not unique to reverse convictions where the record does not contain sufficient evidence to sustain the verdict of the jury. Chief Justice Schroeder in the opinion denying a rehearing set forth the obligation of appellate courts dealing with circumstantial evidence, presumptions, and inferences in the following manner:
“Convictions based upon circumstantial evidence, as in the instant case, can present a special challenge to the appellate court. Juries are permitted to draw justifiable inferences from proven circumstances and established facts; but the appellate court must determine whether findings based upon inferences are justifiable by applying additional rules of law.
“In State v. Gobin, 216 Kan. 278, 531 P.2d 16 (1975), this court reversed a felony conviction of attempting to steal swine. The proof in that case was entirely circumstantial, and we recited applicable appellate rules including the following: ‘Presumption and inferences may be drawn only from facts established and presumption may not rest upon presumption or inference on inference.’ 216 Kan. at 280; see State v. Doyle, 201 Kan. at 488; State v. Ragland, 170 Kan. 346, 351, 226 P.2d 251 (1951).
“Black’s Law Dictionary 917 (4th ed. rev. 1968) defines an inference as ‘[a] process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved or admitted.’ See Duncan v. Railway Co., 82 Kan. 230, 233, 108 Pac. 101 (1910) (where a discussion of inference and presumption is made). The presumption referred to is the permissive type, not the mandatory or conclusive presumption. See Stumbo, Presumptions-A View at Chaos, 3 Washburn L. J. 182, 190-91 (1964).
“The rule which forbids the basing of an inference on an inference has received treatment and analysis in Annot., 5 A.L.R.3d 100. In Kansas, the rule has been cited most frequently in civil cases, but it is recognized as ‘doubly applicable in criminal cases.’ State v. Doyle, 201 Kan. at 488, and cases cited therein.
“The rule is restated in 1 Wharton’s Criminal Evidence § 91, pp. 150-51 (13th ed. 1972):
‘Another way, perhaps, of verbalizing the rule prohibiting an inference on an inference and a presumption on a presumption is the rule, as stated by some courts, that where reliance is placed upon circumstantial evidence, the circumstances in question must themselves be proved and cannot be inferred or presumed from other circumstances.’
“The rule against basing an inference on an inference has been discussed in more detail in Kansas civil cases. This court has said that what is meant by the rule forbidding the basing of one inference upon another inference is that an inference cannot be based upon evidence which is too uncertain or speculative or which raises merely a conjecture or possibility. Virginia Surety Co. v. Schlegel, 200 Kan. 64, 434 P.2d 722 (1967). Permissible presumptions or inferences, as understood in the law of evidence, must have substantial probative force as distinguished from surmise. Farmers Ins. Co. v. Smith, 219 Kan. 680, 689, 549 P.2d 1026 (1976). While reasonable inferences may be drawn from the facts and conditions shown they cannot be drawn from facts or conditions merely imagined or assumed. Duncan v. Railway Co., 86 Kan. 112, 119 Pac. 356 (1911).” 229 Kan. at 648-50.
In order for the convictions to be upheld based on the State’s evidence, the jury would be required to infer beyond a reasonable doubt from the defendants’ lawful presence in the house that:
(1) The defendants’ knew there were drugs and money in the house;
(2) since this was a safe house, whoever was in the house knowingly exercised control over all the drugs which were found therein;
(3) although Garcia had rented the house, she could not be located, leaving Juan Tomas and Jorge in control of the house;
(4) Juan Tomas, within four to five seconds (Officer Wahl’s testimony), hid the cocaine when in the basement; and
(5) all of the above was done with the intent to sell cocaine.
The State established the defendants were hanging curtains for the new tenant of a house police officers opined was a safe house. There was no showing that Comacho’s testimony was anything but totally reliable. What the State asks is for an inference of unlawful behavior to be contradictorily drawn from direct evidence of lawful behavior. This is not legally permissible.
There was no showing of knowledge of the drugs. There was no showing of dominion or control over the drugs. In order to justify both convictions, it is necessary to infer findings and inferences which the limited facts presented do not justify. To sustain the convictions we must condone inferences upon inferences upon inferences. This we will not do.
There was no evidence of the defendants’ fingerprints on any of the drug paraphernalia. The drugs were not in plain view or located near the defendants. No possessions of either defendant were located near the drugs nor were any incriminating items found on their persons. The defendants made no incriminating statements. The bottom line of our holding is that findings of guilt are not justifiable based on the evidence presented. There was insufficient evidence to support the convictions. The motions for judgment of acquittal should have been granted.
Other issues raised by the appellants’ need not be addressed.
The convictions of Jorge A. Cruz and Juan Tomas De La Cruz are reversed. We remand with directions that the sentences herein be vacated and that both defendants be discharged from custody forthwith. | [
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Briscoe, C.J.:
Defendant Curtis Zirkle challenges the sentence imposed following revocation of probation from a conviction of one count of burglary (K.S.A. 21-3715), a class D felony.
In January 1987, Zirkle was charged with burglary, unlawful use of a weapon, and five counts of theft. In September 1987, he pleaded guilty to burglary and the State dismissed all other charges. Zirkle was committed to Topeka State Hospital for a presentence mental examination, was discharged, and was sent to Lamed State Hospital for evaluation. On June 3, 1988, the district court suspended imposition of sentence and placed Zirkle on probation for a period of three years. Zirkle violated the terms of his probation and his probation was revoked on March 21, 1990. The court sentenced Zirkle to a term of one to five years’ imprisonment. The court then discovered he was entitled to six months’ jail time credit and immediately vacated the original sentence and resentenced Zirkle to a term of two to five years’ imprisonment.
Zirkle contends the trial court was without jurisdiction to vacate his original sentence and impose a greater sentence based upon the amount of jail time credit he would receive.
At issue is the legality of the sentence imposed. An illegal sentence is either a sentence imposed by a court without jurisdiction, a sentence which does not conform to statutory provisions either in character or term of punishment authorized, or a sentence which is ambiguous with respect to the time and manner in which it is to be served. State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986). A review of the sentencing transcript in the present case reveals the following exchange:
“THE COURT: All right. The Court pronounces judgment that defendant shall be sentenced and committed to the custody of the Secretary of Corrections for an indeterminate term of imprisonment, the minimum of which shall be one year, the maximum of which shall be five years, for the offense of burglary as provided by K.S.A. 21-3715 which is a class D felony.
“Let’s see, how much jail time does he have? He may have a considerable amount on that one year already, I don’t know.
“THE DEFENDANT: I have about six months, Your Honor.
“THE COURT: Well, I am going to vacate my sentence and make it two-to-five with the understanding — and I am still going to evaluate carefully before I make a final judgment of the case, but I don’t want him immediately sent back to a state parole situation before I get a chance to consider modification or probation. But, the main reason for this is to get a — is to get an SRDC report. That would be the Court’s judgment. And he is credited with all time in custody including I believe he was at Lamed.
“MR. CERRILLO: Yes, he was at Lamed and I believe at Topeka State, Topeka State Hospital, in drug treatment as well.
“THE COURT: All right. Thank you very much.”
Zirkle did not object to the district court’s sentencing procedure. As a general rule, failure to raise the issue before the district court would preclude appellate review. State v. Burgess, 245 Kan. 481, 488, 781 P.2d 694 (1989). Under K.S.A. 22-3504, however, an illegal sentence may be corrected at any time. State v. D.L.P., 13 Kan. App. 2d 647, Syl. ¶ 2, 778 P.2d 851 (1989). Further, an appellate court may consider a newly asserted issue “if consideration is necessary to serve the ends of justice or to prevent a denial of fundamental rights.” State v. Anderson, 12 Kan. App. 2d 342, 343, 744 P.2d 143 (1987).
While this appeal was pending, Zirlde was placed on parole. Therefore, before reaching the merits of the issue presented, we must first determine whether his subsequent release on parole renders his appeal moot. This court will not render opinions in appeals that present moot issues or where judgment could have no practical effect on a then existing controversy. State, ex rel., v. Engler, 181 Kan. 1040, 1042, 317 P.2d 432 (1957). Nevertheless, in such cases, “[t]he court will proceed to judgment whenever dismissal of an appeal adversely affects rights vital to the parties, even where its judgment will not be enforceable because of lapse of time or other changed circumstances.” Gonzales v. State, 11 Kan. App. 2d 70, 71, 713 P.2d 489 (1986).
Here, Zirkle is on parole, but parole is a conditional release from prison, not a reduction of sentence or a pardon. K.S.A. 1990 Supp. 21-4602(4); K.S.A. 1990 Supp. 22-3717(e). Zirkle is still in the State’s custody. State v. Garton, 8 Kan. App. 2d 142, 651 P.2d 27, rev. denied 232 Kan. 876 (1982). The amount of time Zirkle spends on parole is governed by the sentence imposed. K.S.A. 1990 Supp. 22-3717. Should his parole be revoked, Zirkle’s sentence would dictate his remaining term of imprisonment. K.S.A. 1990 Supp. 22-3717(d); K.S.A. 75-5217. If Zirkle’s contentions on appeal are correct, he would be entitled to re- sentencing where the original sentence or a lesser sentence would be imposed. Since a new sentence could potentially affect either the amount of time he spends on parole or the amount of time he spends in prison, there is little question this court is asked to consider an issue that affects Zirkle’s vital rights. Further, since 22-3504 allows a court to correct an illegal sentence at any time, this court will consider the appeal.
Zirkle presents two questions: (1) When is a sentence actually imposed by the district court? (2) Does K.S.A. 1990 Supp. 21-4603 prohibit sentence modification which imposes a more severe sentence?
Our Supreme Court answered the first question in State v. Moses, 227 Kan. 400, 402-03, 607 P.2d 477 (1980):
“Regardless of which of the [sentencing] alternatives the court selects, the judgment is effective upon its pronouncement from the bench-, the filing of a formal journal entry is but a record, evidence of what has been done. The court’s order does not derive its effectiveness from the journal entry, or from any act of the clerk; it is effective when announced. The defendant is personally present, and thus knows that at that moment he or she has been sentenced, fined, or placed on probation, or that the imposition of sentence has been suspended.” (Emphasis added.)
Applying the rule to this case, Zirkle was sentenced when the court announced the one- to five-year sentence from the bench. At that moment, Zirkle knew he had been sentenced and what the sentence was. No additional act was necessary for the pronouncement to be effective. The district court clearly understood this rule as well; otherwise, it would not have “vacated” the sentence imposed.
The second question is easily answered. In Kansas, the power to modify a sentence is granted in limited situations. As discussed, under 22-3504 the court can correct an illegal sentence. The court can also correct clerical errors in judgments or other parts of the record. However, here, the district court was not relying on 22-3504 in modifying its judgment.
A district court has statutory authority to modify a criminal sentence once it is imposed, but there are limits to that authority. Under K.S.A. 1990 Supp. 21-4603(4)(a):
“[A]ny tíme within 120 days after a sentence is imposed, after probation or assignment to a community correctional services program has been revoked, the court may modify such sentence, revocation of probation or assignment to a community correctional services program by directing that a less severe penalty be imposed in lieu of that originally adjudged within statutory limits(Emphasis added.)
In interpreting 21-4603(4)(a), we must “strictly construe the act in favor of the accused.” State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987). There is no question that the statute permits a downward modification of sentence. The question is whether it allows a greater sentence. The predecessor statute, G.S. 1959 Supp. 62-2239, provided a district court the authority to “modify a sentence within sixty (60) days after it is imposed.” In construing that language, the Supreme Court held the word “modify” empowered the court to reduce a sentence but did not authorize it to increase a sentence. Veronee v. State, 193 Kan. 681, 683, 396 P.2d 360 (1964). Both the case law interpreting the predecessor statute and the clear language of 21-4603(4)(a) prohibit the court from increasing sentences. Once a sentence is imposed, the district court is powerless to vacate that sentence and impose a harsher sentence.
Zirlde’s sentence is vacated and this case is remanded with directions to reinstate the sentence of one to five years, or a lesser sentence. | [
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Briscoe, C.J.:
Daniel Sullivan appeals a district court order suspending his driving privileges pursuant to K.S.A. 1989 Supp. 8-1001. Kansas Department of Revenue (KDR) cross-appeals the district court’s finding that there were not reasonable grounds for the officer to believe Sullivan was operating a vehicle while under the influence of alcohol. KDR also cross-appeals the court’s admission of evidence concerning Sullivan’s prior safe driving record.
Both Sullivan and KDR agree it was inconsistent for the district court to find the officer had no reasonable grounds to believe Sullivan was driving while under the influence, yet to affirm the administrative suspension imposed by KDR for refusal to submit to a breath test.
Sullivan contends K.S.A. 1989 Supp. 8-1001(b) permits a law enforcement officer to request a breath test only if the officer has reasonable grounds to believe the person is operating a vehicle while under the influence of alcohol. Absent such grounds, he contends a person’s refusal to submit to a test cannot support a suspension order. This issue presents a question of statutory interpretation and is subject to unlimited appellate review. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990).
K.S.A. 1989 Supp. 8-1001(b) provides in relevant part:
“A law enforcement officer shall request a person to submit to a test or tests deemed consented to under subsection (a) if the officer has reasonable grounds to believe the person was operating or attempting to operate a motor vehicle while under the influence of alcohol or drugs, or both, and one of the following conditions exists: (1) The person has been arrested or otherwise taken into custody for any offense involving operation or attempted operation of a motor vehicle while under the influence of alcohol or drugs, or both, in violation of a state statute or a city ordinance.” (Emphasis added.)
Refusal to submit to an authorized request for a breath test results in suspension of the person’s driving privileges for at least 180 days (K.S.A. 1989 Supp. 8-1001[f][1][D]), provided the statutorily required oral and written notices have been given (K.S.A. 1989 Supp. 8-1002).
The clear unambiguous language of the statute provides that Sullivan’s license could be suspended only if (1) the law enforcement officer had reasonable grounds to believe Sullivan operated a vehicle while under the influence of alcohol, (2) he was arrested for an alcohol-related offense, (3) he was presented the required oral and written notices, and (4) he refused to submit to the requested test. The district court erred in concluding the statute required automatic suspension of Sullivan’s driving privileges absent a finding that the officer had reasonable grounds to believe Sullivan operated a vehicle while under the influence of alcohol.
KDR cross-appeals, contending the district court erred in finding Sullivan had proved by a preponderance of the evidence that the officer did not have reasonable grounds to believe Sullivan was operating a vehicle while under the influence of alcohol. This is a question of fact. The scope of appellate review, therefore, is whether there is substantial competent evidence to support the findings of the court. Angle v. Kansas Dept. of Revenue, 12 Kan. App. 2d 756, 766, 758 P.2d 226, rev. denied 243 Kan. 777 (1988).
This court has equated “reasonable grounds” with “probable cause.” Angle, 12 Kan. App. 2d at 766-69. “Probable cause” to arrest refers to knowledge of facts and circumstances which would lead a prudent person to believe a suspect is committing or has committed an offense. State v. Strauch, 239 Kan. 203, 208, 718 P.2d 613 (1986). Existence of probable cause must be determined by consideration of the information and fair inferences therefrom, known to the officer at the time of the arrest. It is not necessary that the evidence relied upon establish guilt beyond a reasonable doubt. The evidence need not even prove that guilt is more probable than not. It is sufficient if the information leads a reasonable officer to believe that guilt is more than a possibility. State v. Lamb, 209 Kan. 453, 467, 497 P.2d 275 (1972).
Huerter initially stopped Sullivan’s car for speeding 69 mph in a 55-mph zone. Huerter walked up to Sullivan’s car, noticed an open beer can in the car, and smelled alcohol. Sullivan admitted he had had some” beer and Huerter asked Sullivan to perform field sobriety tests. Sullivan swayed and was unsteady during the one-leg stand. In the heel-to-toe test, Sullivan took the wrong number of steps, he did not walk heel-to-toe, and his balance was not steady or sure while walking. On the basis of this information, Huerter arrested Sullivan. Huerter testified to the events leading up to Sullivan’s arrest. The only conflicting testimony he gave was whether Sullivan’s eyes were bloodshot. Sullivan admitted he had drunk five or six beers. He also testified he did not understand what would happen if he did not take the breath test.
Sullivan emphasizes that this court cannot “weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions of fact.” Mansfield Painting & Decorating, Inc. v. Budlaw Services, Inc., 3 Kan. App. 2d 77, 84, 589 P.2d 643, rev. denied 225 Kan. 844 (1979). However, in this case the evidence was wholly uncontradicted and the district court did not expressly pass on the credibility of Huerter’s testimony. It is well established that “ ‘ [ u ] ncontr adiete d evidence which is not improbable or unreasonable cannot be disregarded . . . unless it is shown to be untrustworthy; and such uncontradicted evidence should ordinarily be regarded as conclusive.’ ” Home Life Ins. Co. v. Clay, 13 Kan. App. 2d 435, 444, 773 P.2d 666, rev. denied 245 Kan. 783 (1989). Huerter’s testimony was uncontradicted, it was not improbable or unreasonable, and it was not shown to be untrustworthy. The district court cannot arbitrarily disregard the only evidence presented.
The only evidence which supports the findings and rulings of the district court was that Sullivan recited the alphabet accurately and his speech was not slurred. Sullivan’s accurate recitation of the alphabet may be sufficient to raise a reasonable doubt in a criminal trial, but it is not sufficient to counter the other facts known to Huerter at the time Sullivan was arrested. The district court erred in finding Huerter lacked reasonable grounds to believe Sullivan operated a vehicle while under the influence of alcohol.
Given our affirmance of the suspension order, we need not reach KDR’s final contention that the district court erred in admitting into evidence testimony regarding Sullivan’s past driving record.
The order suspending Sullivan’s driving privileges is affirmed. The court’s finding that the officer lacked reasonable grounds to believe Sullivan was driving while under the influence is reversed. | [
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Wahl, J.:
This is a contract dispute between Electric Corporation of Kansas City (Electric Corp.) and D.M. Ward Construction Co., Inc. (Ward). Ward appeals the trial court’s judgment refusing to compel arbitration of this dispute and refusing to grant Ward a setoff from the judgment entered for Electric Corp.
In 1985, Ward, a general contractor, contracted with Distron, Inc., a division of Burger King Corporation, to build a warehouse-distribution center in Kansas City, Kansas. Ward selected Electric Corp. as the electrical contractor for the project, and the parties entered into a written subcontract on September 30, 1985. Ward supplied the American Institute of Architects standard form subcontract agreement that the parties used. The subcontract contained a provision stating: “All claims, disputes and other matters in question arising out of, or relating to, this subcontract . . . shall be decided by arbitration.”
The warehouse was to contain office space, storage space, and large drive-in refrigerator and freezer units which occupied ap proximately 30 or 40 percent of the floor space of the warehouse. The refrigerated portions of the warehouse were to be cooled by a computerized ammonia cooling system, which included a sensitive ammonia detection system.
During construction, Electric Corp. was called upon to perform several tasks which were not included in the subcontract with Ward. Ward also requested Electric Corp. to install temperature control wiring for the ammonia system, believing such wiring to be part of Electric Corp.’s subcontract. Electric Corp. disputed this claim, arguing the only temperature control wiring it agreed to install was that relating to the heating and cooling systems for the office area. Electric Corp. believed the temperature control wiring for the ammonia system was the responsibility of the refrigeration contractor, Preston Refrigeration. Ward eventually hired another electrical contractor, Broadway Electrical Construction (Broadway), to install the ammonia system wiring.
Electric Corp. completed its work on the warehouse on January 14, 1987, but as of March 23, 1987, had not been paid the full contract price or for the extra work performed, so Electric Corp. filed a mechanic’s lien against the property. Ward made further payments to Electric Corp. after the lien was filed, but still owed Electric Corp. approximately $20,000 a year later. Electric Corp. brought suit against Ward and Burger King in March 1988 to collect the balance due. Ward filed an answer on April 11, 1988, but the answer did not mention the arbitration clause of the subcontract.
In December 1988, following discovery, the court set the matter for trial on January 10, 1989, then on December 21, 1988, reset trial for February 7, 1989. On January 3, 1989, Ward filed a motion to compel arbitration and stay the trial court’s proceedings pursuant to K.S.A. 5-402(a). The appearance docket indicates the trial court denied this motion on January 20, 1989, but no journal entry was filed.
Ward’s defenses at trial were that Electric Corp. had not adequately performed under the contract, that it did not promptly submit some of the bills for the extra work in a timely manner as required by the subcontract, and that Electric Corp.’s labor charges were unreasonable. Ward also claimed a setoff for amounts paid to Broadway to complete the temperature control wiring for the ammonia system.
The trial court found the subcontract was ambiguous on whether Electric Corp. was required to install the ammonia system temperature control wiring and construed the contract strictly against Ward. The trial court also found Electric Corp.’s charges were reasonable and its billings were timely submitted, except for two items which were billed late. The trial court found, however, the late billing on these items did not prejudice Ward and thus allowed Electric Corp. to recover for them. The trial court entered judgment in favor of Electric Corp. for $23,932.46.
Ward filed a post-trial motion to alter or amend the judgment, alleging K.S.A. 5-402(a) required the trial court to compel arbitration when it was requested by Ward. Ward also argued that the trial court erred in not allowing a setoff based on the undisputed evidence at trial that the parties had a clear understanding of what the term “temperature control Wiring” meant. The trial court denied Ward’s motion in total and Ward timely appeals.
On appeal, Ward argues the trial court erred in refusing to compel arbitration becáuse: (1) the subcontract requires arbitration of all disputes; (2) K.S.A. 5-402(a) requires the trial court to compel arbitration when requested by a party; (3) arbitration agreements are statutorily recognized and their enforceability sup-' ported by Kansas case law; and (4) Ward did not waive its right to arbitration. Electric Corp. contends Ward’s tardy attempt to compel arbitration was barred by waiver, estoppel, or laches.
Waiver is “an intentional renunciation of a claim or right and exists only where there has been some absolute action or inaction inconsistent with that claim or right.” Proctor Trust Co. v. Neihart, 130 Kan. 698, 705, 288 Pac. 574 (1930). Waiver of a contract right “ ‘implies a voluntary and intentional renunciation of it, and some positive act or positive inaction inconsistent with .the contract right is necessary to create a waiver. [Citations omitted. ]’” 130 Kan. at 705. See Rice v. Hillenburg, 13 Kan. App. 2d 155, 161, 766 P.2d 182 (1988), rev. denied 244 Kan. 738 (1989).
There is no journal entry in the record denying Ward’s motion to compel arbitration. However, the trial court explained its reason for denying the motion in its decision denying Ward’s post- trial motion to alter or amend the judgment. The journal entry provides:
“[T]he court originally denied the defendant’s request for arbitration, due to the fact that the trial was set to commence on February 2, 1989, and the motion to compel arbitration was not filed and brought to the attention of the court until January 3, 1989. The court found at that time that provisions for arbitration are generally included in contracts so that matters might be settled in shorter periods of time, and to grant arbitration in this case would have the effect of actually delaying the process of adjudication of the dispute. The court finds no sufficient reason to disturb that prior ruling on this issue.”
K.S.A. 5-402(a) clearly requires a trial judge to stay court proceedings and compel arbitration when the parties have entered into a binding agreement to arbitrate disputes. In this respect, Kansas law is virtually identical to the provisions of the Federal Arbitration Act. See 9 U.S.C. § 2, 3 (1988). In Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 218, 84 L. Ed. 2d 158, 105 S. Ct. 1238 (1985), the Court held that, where parties have agreed to arbitrate disputes, district courts have no discretion to refuse to enforce arbitration clauses absent grounds for revocation of the agreement. However, in Jackson Trak Group, Inc. v. Mid States Port Authority, 242 Kan. 683, 751 P.2d 122 (1988), the Kansas Supreme Court recognized that the conduct of a party that is inconsistent with the treatment of a contractual arbitration provision, or conduct that a court could reasonably construe as evidencing a lack of intent to take advantage of an arbitration provision, may amount to the waiver of a right to arbitrate. 242 Kan. at 693. The court specifically recognized that a right to arbitrate may be waived “by [a party] being unjustifiably slow in seeking arbitration.” 242 Kan. at 693. However, the court found no waiver in that case where the party against whom waiver was asserted had filed an application for an injunction and replevin of property it alleged was wrongfully converted, while specifically reserving the right to arbitrate the issue of damages for the conversion of the property. 242 Kan. at 693.
While Jackson Trak recognized that a contractual right to arbitration could be waived by failing to timely seek arbitration, the court did not specify an appellate scope of review on this issue. The parties in this case disagree on this court’s scope of review. Ward urges this court to apply a de novo standard, since the issue of whether the dispute should have gone to arbitration is determined by a construction of the written subcontract. Alternatively, Ward argues the same standard applies because both parties “stipulated” as to the existence of the arbitration clause. Electric Corp. argues the trial court’s finding that Ward waived its right to arbitration is a question of fact which is supported by substantial evidence and should not be overturned on appeal absent an abuse of discretion.
Both parties’ contended standards of appellate review fall short. Ward’s position that the de novo standard applies is not correct because the contract clearly requires arbitration of all disputes and no construction of the agreement is required. The only disputed question on this appeal is whether Ward waived its right to arbitration.
Electric Corp.’s position that the trial court’s finding of waiver is a factual question is not entirely satisfactory either. Whether a contract right is waived is a legal conclusion, but the conclusion is dependent on facts found by the trial court. In Price v. Drexel Burnham Lambert, Inc., 791 F.2d 1156, 1158 (5th Cir. 1986), the Fifth Circuit Court of Appeals summarized federal cases regarding the proper scope of review of a finding of waiver, noting some jurisdictions treat the question as one of fact subject to the “clearly erroneous” standard of review, while others treat it as a question of law subject to “plenary” review. 791 F.2d at 1159. The court adopted a mixed approach, stating: “[A] finding that a party has waived its right to arbitration is a legal conclusion subject to our plenary review, but that the findings upon which the conclusion is based are predicate questions of fact, which may not be overturned unless clearly erroneous.” 791 F.2d at 1159. This statement of the scope of appellate review is in accord with Kansas law on findings of fact and conclusions of law. See Williams Telecommunications Co. v. Gragg, 242 Kan. 675, 676, 750 P.2d 398 (1988).
While no Kansas case has specifically stated what actions constitute waiver of a contractual right to arbitration, several federal and state decisions have held that participation in a lawsuit without reserving the right to arbitrate by raising it in the answer or reasonably soon thereafter constitutes waiver. In Price v. Drexel Burnham Lambert Inc., 791 F.2d at 1162, the court held arbitration was waived where the party seeking to compel arbitration had filed answers and motions, moved for extension of pretrial deadlines, and initiated extensive discovery before filing a motion to compel arbitration seventeen months later. In Lounge-A-Round v. GCM Mills, Inc., 109 Cal. App. 3d 190, 201-02, 166 Cal. Rptr. 920 (1980), the defendant was held to have waived arbitration by answering and filing a cross-claim while waiting nine months before moving to compel arbitration. See Annot., 98 A.L.R.3d 767; 5 Am. Jur. 2d, Arbitration and Award §§ 51, 52.
Several early cases held that merely answering to the merits of a claim constituted waiver of the right to arbitrate. See Annot., 98 A.L.R.3d 767 §§ 3, 4. Since those early cases, many states, including Kansas, have adopted the Uniform Arbitration Act, and Congress has adopted the Federal Arbitration Act. As a result of the strong state and federal policies favoring arbitration, many recent decisions have abandoned the rationale of the early cases and impose a heavy burden on the party opposing arbitration. See, e.g., Belke v. Merrill Lynch, Pierce, Fenner & Smith, 693 F.2d 1023, 1025 (11th Cir. 1982). Many courts now conclude that the essential issue in determining whether a party has waived its right to arbitration “is not whether the moving party’s actions have been consistent with arbitration, but rather, whether prejudice would occur to the party opposing arbitration.” County of Clark v. Blanchard Constr. Co., 98 Nev. 488, 491, 653 P.2d 1217 (1982). See Page v. Moseley, Hallgarten, Estabrook & Weeden, 806 F.2d 291, 293 (1st Cir. 1986); New Linen Supply v. Eastern Environmental Controls, Inc., 96 Cal. App. 3d 810, 814, 158 Cal. Rptr. 251 (1979); Matthews-McCracken Rutland Corp., Etc., 414 So. 2d 756, 757 (La. 1982); United Nuclear Corp. v. General Atomic Co., 93 N.M. 105, 115, 597 P.2d 290 (1979).
In Price, the court stated “ ‘[w]aiver will be found when the party seeking arbitration substantially invokes the judicial process to the detriment or prejudice of the other party.’ ” 791 F.2d at 1158.
In another case from the Fifth Circuit, the court found no prejudice to the non-moving party where the party insisting on arbitration indicated his desire to arbitrate in his original answer, maintained that position during discovery, and only minimal dis covery was conducted. Tenneco Resins, Inc. v. Davy Intern., AG, 770 F.2d 416, 421 (5th Cir. 1985).
Peterson v. Shearson/American Exp., Inc., 849 F.2d 464 (10th Cir. 1988), lists six factors to be used in determining whether a party has waived the right to arbitration. These are:
“(1) whether the party’s actions are inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled or prejudiced’ the opposing party. [Citations omitted.]” 849 F.2d at 467-68.
Applying the Peterson tests to the evidence in this case, Ward’s actions were inconsistent with its later assertion of the right to arbitrate. Electric Corp.’s petition was filed on March 2, 1988. Ward answered on April 11, 1988, but the answer gave no indication that Ward desired to arbitrate. The trial court was not aware that Ward claimed a right to arbitration until Ward’s motion was filed on January 3, 1989, ten months after the action was filed.
The litigation machinery does not appear to have been substantially invoked by the time Ward notified Electric Corp. that it desired to arbitrate this dispute. Ward notified Electric Corp. of its desire to arbitrate in letters dated September 13, 1988, October 4, 1988, and December 2, 1988. Electric Corp. argues these letters cannot be considered on appeal because they were not made a part of the record below. American States Ins. Co. v. Hanover Ins. Co., 14 Kan. App. 2d 492, 493, 794 P.2d 662 (1990). While Supreme Court Rule 6.02(f) (1990 Kan. Ct. R. Annot. 25) states that an appendix to an appellant’s brief “is not to be considered a substitute for the record itself,” there is some evidence in the record that Ward requested Electric Corp. to arbitrate this dispute as early as September 13, 1988. Ward’s memorandum in support of its motion to compel arbitration discloses that Ward’s attorney sent Electric Corp.’s counsel letters requesting arbitration on September 13, 1988, and October 4, 1988, but received no response. The memorandum also states that Ward’s counsel first received notice that Electric Corp. refused to arbitrate in December 1988. In Electric Corp.’s response to Ward’s motion to compel arbitration, Electric Corp.’s counsel admits that Ward asserted its right to arbitration in September 1988. This fact is also admitted in Electric Corp.’s brief. Most of the legal proceeding prior to September 1988 involved Burger King’s failed attempt to be dismissed from the lawsuit. It is not clear from the record whether the parties were well into preparation of their court case before Ward notified Electric Corp. of its desire to arbitrate. The record does disclose that discovery was essentially complete prior to the time Ward filed its motion to compel arbitration with the trial court.
Ward’s request for arbitration enforcement, filed January 3, 1989, came very close to the trial date, which had been set for February 7, 1989.
Ward did not file a counterclaim before requesting a stay of the proceedings. Ward’s claim for setoff was asserted only after the trial judge denied Ward’s request for a stay.
Ward conducted some discovery prior to filing its motion to compel arbitration. The record shows Ward filed a request for production of documents on October 6, 1988.
Ward’s tardy request for arbitration did prejudice Electric Corp. since Electric Corp. had already conducted , a substantial amount of discovery in preparation for trial. This reason was employed by the court to find prejudice to the non-moving parties in United States, Etc. v. S.T.C. Const. Co., 472 F. Supp. 1023 (E.D. Pa. 1979), where the court affirmed the trial court’s decision finding the defendant waived arbitration. In that case, the defendant waited nineteen months before raising arbitration as a defense or requesting a stay of the court proceedings. The defendant actively participated in discovery and had filed a counterclaim against one of the defendants. The court found prejudice to the non-moving parties because granting the defendant’s tardy motion would require the parties to prepare for arbitration after having prepared to settle their dispute in court. 472 F. Supp. at 1025.
The trial court’s conclusion that Ward waived its right to arbitrate is supported by facts based on substantial competent evidence and must be affirmed.
Ward argues the trial court erred in denying its claim to set off $15,684 from the judgment for the amount of money it had to pay Broadway to complete the ammonia system temperature control wiring. Ward argues the testimony of Mark Ward, the president and part-owner of defendant Ward Construction Co., was uncontroverted and therefore conclusively established that the parties reached a clear understanding that Electric Corp. was contractually obligated to do the ammonia system wiring. Electric Corp. counters that Ward’s testimony was not uncontroverted, but was merely a portion of the total evidence which the trial court had to consider.
Central to this issue is the trial court’s finding that the subcontract was ambiguous. The contract clearly required Electric Corp. to do some temperature control wiring. The issue in dispute was whether the term “temperature control wiring” as used by the parties included temperature control wiring for the ammonia cooling system, which came under the refrigeration section of the subcontract and had a different set of specifications. If Electric Corp. was contractually obligated to do the ammonia system temperature control wiring and it breached the contract, Ward would be entitled to set off the amount it paid Broadway to complete the work. See Phelps Dodge Copper Products Corp. v. Alpha Construction Co., 203 Kan. 591, Syl. ¶ 4, 455 P.2d 555 (1969). Ward’s argument, however, does not directly challenge the trial court’s finding that the subcontract was ambiguous. Rather, Ward alleges the trial court erred because it disregarded Mark Ward’s uncontroverted testimony regarding what the parties intended. This argument is without merit.
The uncontroverted testimony Ward refers to was Mark Ward’s testimony at trial that the parties had agreed temperature control wiring was included in Electric Corp.’s bid. Ward admitted on the stand that the initial drawings and specifications were not clear on whether the ammonia system temperature control wiring was to be done by the electrical contractor or the refrigeration contractor. Ward testified he had a conversation with someone he was “pretty sure” was Daryl Stine, Electric Corp.’s president, and asked him whether temperature control wiring was included in Electric Corp.’s bid. Stine allegedly told Ward it was. However, nothing in Ward’s testimony specifically states that Electric Corp. agreed to do the ammonia system temperature control wiring or whether Stine was referring to the temperature control wiring for the heating and cooling systems for the office area. Larry Osborn testified for Electric Corp. and stated that Electric Corp.’s bid did include temperature control wiring, but only for the office heating and cooling systems. Thus, the issue to be determined by the trial court was what the parties intended by use of the term “temperature control wiring.”
Ward argues that, since Stine was present at trial but did not testify, the trial court was required to accept Mark Ward’s interpretation of what “temperature control wiring” meant. As authority for its position, Ward relies upon language from Home Life Ins. Co. v. Clay, 13 Kan. App. 2d 435, 444, 773 P.2d 666, rev. denied 245 Kan. 783 (1989), which stated: “ ‘uncontroverted evidence which is not improbable or unreasonable cannot be disregarded . . . unless it is shown to be untrustworthy; and such uncontradicted evidence should ordinarily be regarded as conclusive.’ ” This is a correct statement of the law, but Ward seeks to apply it incorrectly. Mark Ward’s testimony was controverted at trial by Osborn. The trial court also heard the testimony of an architect called as an expert witness by Electric Corp. in rebuttal, who testified that, based upon his experience with construction contracts, the term “temperature control wiring” meant “HVAC [heating, ventilating, air conditioning] wiring” such as that used for the office heating and cooling systems. The expert also noted that the ammonia system temperature control wiring came under a special section of the subcontract separate and apart from the electrical section, and, in his opinion, the refrigeration contractor was responsible for the ammonia system temperature control wiring. Mark Ward’s testimony was not controverted by Stine, but it was controverted by other witnesses for Electric Corp. Ward cites no authority for its claim that such testimony must be contradicted by the person spoken to or such testimony shall be considered to be uncontroverted. We know of no such authority.
Ward’s final argument attempts to establish entitlement to GO-TO percent of the setoff claim. This argument is based on the testimony of Electric Corp.’s expert witness regarding the commonly accepted meaning of the term “temperature control wiring.” The expert testified the term generally referred to heating, ventilating, and air conditioning wiring, such as the wiring installed in the office portion of the warehouse. The expert stated on cross-examination that he generally agreed with Ward’s attorney’s suggestion that 60 to 70 percent of the warehouse did not consist of refrigerated space. Ward then concludes the expert agreed “that 60 to 70 percent of the work in dispute was not for the refrigeration system;” (emphasis added) consequently, even accepting the expert’s opinion that the term “temperature control wiring” did not include work on the refrigeration system, Ward should be entitled to 60 to 70 percent of its setoff claim.
This argument misstates the expert’s testimony. The work in dispute was the temperature control wiring for the refrigeration system. Electric Corp.’s expert testified that, in his opinion, the subcontract did not require Electric Corp; to do this wiring. While the expert agreed that 60 to 70 percent of the warehouse was not refrigerated, he did not testify that 60 to 70 percent of the work in dispute was Electric Corp.’s responsibility. Ward’s argument suggests that Electric Corp. did not perform its contractuál obligations with regard to the nonreffigerated portions of the warehouse. This argument is without merit. There is no evidence in the record to support it.
The judgment of the trial court is affirmed. | [
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Lewis, J.:
This is an appeal from the decision of the trial court on a motion to increase child support.
The appellant is Robert Schletzbaum, who is the natural father and principal custodian of the two children for whom support is sought. Dianna Schletzbaum is the appellee, the mother of the children, and the party from whom support is sought.
Robert and Dianna were divorced in July 1989. At the time of the divorce, custody of the party’s two minor children was awarded jointly, with primary custody being awarded to Robert. Dianna was ordered to pay child support in the amount of $150 per month.
In April 1990, Robert filed a motion to increase child support. An evidentiary hearing was held on this motion. Based upon the evidence presented and upon worksheet “A” prepared by Robert, the Kansas Child Support Guidelines indicated that Dianna should pay child support in the amount of $332 per month. The parties agree that the minimum due under the guidelines was $332 per month.
The trial court chose to ignore the child support guidelines and ordered Dianna to pay child support in the amount of $225 per month, $107 per month less than the amount required by the guidelines. In making this order, the trial court made no specific finding setting forth its reasons for deviating from the amount required by the guidelines and shown on worksheet “A.”
Robert appeals the decision of the trial court. He argues that the child support guidelines are mandatory and cannot be deviated from without specific findings of fact being made by the trial court to explain the reasons for its deviation. We agree with Robert’s argument, and we reverse the decision of the trial court and remand this case for further proceedings.
The standard of appellate review of a trial court’s order determining the amount of child support is abuse of discretion. Thompson v. Thompson, 205 Kan. 630, 631, 470 P.2d 787 (1970). “Judicial discretion is abused when judicial action is arbitrary, fanciful or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
In the instant matter, we hold that the trial court abused its . discretion in not complying with the provisions of Kansas Supreme Court Administrative Order No. 75.
On April 1, 1990, Kansas Supreme Court Administrative Order No. 75 went into effect. The order reads in pertinent part:
“The Kansas Child Support Guidelines are the basis for establishing and reviewing child support orders in the district courts in Kansas, including cases settled by agreement of the parties. Judges and hearing officers must follow the guidelines. The Net Parental Child Support Obligation is calculated by completing the Child Support Worksheet (Appendix I).
“The Court shall consider all relevant evidence presented in setting the amount of child support, including but not limited to the Child Support Adjustments set forth in Section E of the Worksheet. The calculation of the respective parental child support obligations in Line D.9. of the Worksheet is a rebuttable presumption of a reasonable child support order. However, the Court shall complete Section E of the Child Support Worksheet listing all relevant Child Support Adjustments. The Child Support Adjustments shall constitute the written criteria for deviating from the rebuttable presumption. If the Court finds, in the best interests of the child, that the amount of child support as calculated on Line D.9. of the Worksheet to be unjust or inappropriate in a particular case, the Court shall apply the Child Support Adjustments to modify the child support amount.
“The Court, in using Child Support Adjustments to modify the child support amount, shall use Section E of the Worksheet to make written findings or specific findings on the record, which shall be included in the journal entry, as to the reasons for any deviation from the Net Parental Child Support Obligation on Line D.9.
“Pursuant to 45 CFR 302.54, the ‘findings that rebut the guidelines shall state the amount of support that would have been required, how the order varies from guidelines, including the value of any property or other support awarded in lieu of support presumed by the guidelines, the justification of how the findings serve the best interests of the child, and in cases where items of value are conveyed in lieu of a portion of the support presumed under the guidelines, the estimated value of items conveyed.’ Use of Section E of the Worksheet shall constitute sufficient written findings to comply with this requirement.” (Emphasis added.) 1990 Kan. Ct. R. Annot. 56-57.
There is no question but that the guidelines were applicable to the instant matter, and the language in the guidelines is quite specific to that effect: “Judges and hearing officers must follow the guidelines.” The guidelines are mandatory and must be complied with by the trial court when ruling on child support matters to which the guidelines are applicable.
We hold that the guidelines create a rebuttable presumption for an award of child support. We have further indicated above that the trial court must follow those guidelines. According to the worksheet in the record and by agreement of the parties, Dianna has a support obligation of $332 per month. Kansas Supreme Court Administrative Order No. 75 requires that the trial court either award the amount established by the guidelines or use Section E of the Worksheet to “make written findings or specific findings on the record, which shall be included in the journal entry, as to the reasons for any deviation from the Net Parental Child Support Obligation on Line D.9.”
The trial court in the instant matter did not award as support the $332 presumed proper by the guidelines and did not make the necessary findings to deviate from the amount presumed proper by the guidelines. The findings referred to in Administrative Order No. 75 to support the deviation from the guidelines are mandatory, and their absence in this instance requires that we reverse and remand.
It is not our intent by this opinion to establish the amounts suggested by the child support guidelines as absolute and mandatory in every instance. We hold only that the amount dictated by worksheet “A” and the child support guidelines does create a rebuttable presumption as to the proper amount to be awarded for child support. If the trial court desires to deviate from this rebuttable presumption, it must make the findings referred to and required by Administrative Order No. 75, set forth above. While a deviation from the guidelines is permitted, any deviation from the guidelines made without the findings required by Administrative Order No. 75 is not permitted and is reversible error.
For the reasons set forth above, we reverse the decision of the trial court and remand for proceedings consistent with Administrative Order No. 75 and this opinion.
It has been suggested to us that we direct that another judge should be assigned to hear further proceedings in this matter. We decline to follow that suggestion and are confident that the trial judge who initially heard this motion will comply with this opinion and Administrative Order No. 75.
Reversed and remanded. | [
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Gernon, J.:
This is an appeal from a ruling in favor of the defendant, Carrie Conner Jackson, in an action for reimbursement of public assistance benefits.
The State of Kansas ex rel. Secretary of Social and Rehabilitation Services (SRS) contends that the trial court erred by ruling that funds from a trust were not an “available” resource of Jackson for the purposes of determining eligibility for public assistance benefits.
FACTS
Carrie Conner Jackson received medical assistance, food stamps, and cash public assistance in a total amount of $35,565.11 beginning in May of 1983. In February of 1986, SRS terminated the assistance. The basis for the termination was that Jackson was a beneficiary of two trusts. SRS concluded that trust funds were “available” to Jackson and, therefore, she was not eligible for benefits. SRS sued Jackson for the amount Jackson had received for assistance, contending it was an “overpayment.”
The parties stipulated to the facts. Two trusts were created by Jackson’s grandfather, W. D. Essmiller. Both were discretionary trusts with spendthrift provisions. Jackson received only nominal funds from one of the trusts during the time she was receiving assistance.
W. D. Essmiller expressed concern about the lifestyle and lack of employment of Jackson and her husband. Essmiller expressed his concern about Jackson’s ability to handle financial matters. When he set up the trusts, he gave the trustees full control and discretion as to the use of the funds. He further provided that, upon Jackson’s death, the funds would be distributed to her children upon all of them reaching the age of 21.
APPLICABLE LAW
Eligibility requirements for general assistance, medical assistance, and assistance to families with dependent children (AFDC) are governed by K.S.A. 1989 Supp. 39-709. Assistance from programs involving federal funds is governed by K.S.A. 1989 Supp. 39-709(a), which provides in part that assistance “may be granted to any needy person who: (1) Has insufficient income or resources to provide a reasonable subsistence compatible with decency and health.” The provision also permits SRS to establish income and resource exemptions as permitted by federal legislation.
Eligibility for the AFDC program is governed by K.S.A. 1989 Supp. 39-709(b), which provides that assistance “may be granted” to any dependent child or relative meeting the requirements of K.S.A. 1989 Supp. 39-709(a).
Eligibility for general assistance programs not involving federal funds is governed by K.S.A. 1989 Supp. 39-709(d)(1), which provides in part:
“(A) To qualify for general assistance in any form a needy person must have insufficient income or resources to provide a reasonable subsistence compatible with decency and health and, except as provided for transitional assistance, be a member of a family in which a minor child or a pregnant woman resides or be unable to engage in employment.”
Eligibility for medical assistance is governed by K.S.A. 1989 Supp. 39-709(e), which provides in part:
“[MJedical assistance in accordance with such plan shall be granted to any person . . . whose resources and income do not exceed the levels prescribed by the secretary. In determining the need of an individual, the secretary may provide for income and resource exemptions and protected income and resource levels.”
K.S.A. 39-719b authorizes an action for reimbursement of public assistance benefits and provides in part:
“Any assistance paid shall be recoverable by the secretary as a debt due to the state. If during the life or on the death of any person receiving assistance, it is found that the recipient was possessed of income or property in excess of the amount reported or ascertained at the time of granting assistance, and if it be shown that such assistance was obtained by an ineligible recipient, the total amount of the assistance may be recovered by the secretary as a fourth class claim from the estate of the recipient or in an action brought against the recipient while living.”
Pursuant to the authority granted by K.S.A. 39-708c, the Secretary of SRS has issued a number of regulations concerning eligibility for public assistance benefits. K.A.R. 30-4-34 et seq. contain the eligibility requirements for most public assistance programs. Eligibility requirements for medical assistance programs (other than Medicaid) are contained in K.A.R. 30-6-34 et seq.
K.A.R. 30-4-53 contains financial eligibility requirements for public assistance and provides in part:
“Each applicant or recipient shall be determined to be financially eligible if the client: (a) Owns property within the allowable limits;
“(b) has income that does not exceed 185% of the public assistance standards as set forth in K.A.R. 30-4-100; and
“(c) has a budgetary deficit after subtracting total applicable income from the public assistance standards.”
While K.A.R. 30-4-53 has been restructured and the income eligibility standard has been adjusted, the basic eligibility requirements of the regulation have not changed since 1982. See K.A.R. 30-4-53 (1983); K.A.R. 30-4-53 (1982 Supp.).
K.A.R. 30-4-106 (1983) contains “rules for consideration of resources” of a public assistance applicant and provides in part:
“(a) Ownership for assistance purposes shall be determined by legal title. In the absence of a legal title, ownership shall be determined by possession.
“(b) Resources shall be real and of a nature that the value can be defined and measured. . . .
“(c) Resources shall be considered available both when actually available and when the applicant or recipient has the legal ability to make them available.
(d) The resource value of property shall be that of the applicant’s or recipient’s equity in the property.”
K.A.R. 30-4-109 provides a definition of personal property for eligibility purposes. K.A.R. 30-4-109(a)(2) provides: “ ‘Cash assets’ means money, investments, cash surrender or loan values of life insurance policies, trust funds, and similar items on which a determinate amount of money can be realized.” This definition has not been changed since 1982. See K.A.R. 30-4-109(a)(2)(1982 Supp.).
The provisions of K.A.R. 30-6-106 (1983), concerning medical assistance, are nearly identical to the provisions of K.A.R. 30-4-106. The current version of 30-6-106 contains an additional provision concerning trusts created by the applicant or their spouse. See K.A.R. 30-6-106(c)(2)(1990 Supp.). EVen if this provision is deemed applicable to benefits granted in 1986 and earlier, the provision does not address a trust created by a grandparent.
Essentially, the State argues the trust funds were an “available” resource within the meaning of K.A.R. 30-4-106(c) and K.A.R. 30-6-106(c)(1). As noted, the resolution of this issue will depend upon the nature of Jackson’s interest in the trusts.
NATURE OF TRUSTS
The State has abandoned any claim to funds from the W. D. Essmiller Trust. This trust instrument clearly makes Jackson a contingent beneficiary if the funds are not exhausted for the benefit of Essmiller’s daughter, Laverna Conner. Therefore, all agree that Jackson’s interest in this trust does not constitute an “available” resource under K.A.R. 30-4-106(c) and K.A.R. 30-6-106(c)(1).
The Jackson Trust is, therefore, the focus of the State’s attention. The stipulated facts characterize the instruments as “discretionary trusts with spendthrift.provisions.” The Jackson Trust provides in part:
“(A) During the lifetime of Carrie Conner Jackson, the Trustees, in their uncontrolled discretion, shall pay to Carrie Conner Jackson the net income of the Trust. In addition, the Trustees may pay to Carrie Conner Jackson, from the principal of the Trust from time to time, such amount or amounts as the Trustees in their uncontrolled discretion, may determine is necessary for the purposes of her health, education, support and maintenance. . . .
“(B) On the death of my granddaughter, Carrie Conner Jackson, the trust property shall be distributed among her issue, per stirpes, and held in separate trusts until all of her children reach the age of twenty-one (21) with the Trustees having the sole discretion to distribute the income and invade the principal for purposes of their health, education, support or maintenance. . . .
“(C) The interest of each beneficiary and the income or principal of the trust created under this instrument shall be free from the control or interference of any creditor of a beneficiary or of any spouse of a married beneficiary and shall not be subject to attachment or susceptible of anticipation or alienation.”
K.S.A. 33-101 contains a general rule regarding the claims of creditors against a trust beneficiary and provides:
“All gifts and conveyances of goods and chattels, made in trust to the use of the person or persons making the same shall, to the full extent of both the corpus and income made in trust to such use, be void and of no effect, regardless of motive, as to all past, present or future creditors; but otherwise shall be valid and effective.”
We agree with the trial court’s conclusion that the Jackson Trust was a discretionary trust and, therefore, those funds were not “available” for the purposes of public assistance eligibility. Our conclusion is supported inferentially by present Kansas case law, although the precise question in the present case has not been reported.
In Watts v. McKay, 160 Kan. 377, 162 P.2d 82 (1945), the Kansas Supreme Court recognized the validity of discretionary trusts and the powers of the trustee in such cases. The plaintiff in Watts sought an order compelling the trustee to pay a judgment for alimony. The court determined that a discretionary trust existed and stated:
“The beneficiary has no right, as a matter of law, to require the trustee to turn over to him the principal of the estate or any part of it. . . .
“. . . [The beneficiary] does not have such an interest in the corpus of the trust estate in the hands of the trustee as can be reached to satisfy the judgment for alimony and attorney’s fees, and . . . the trustee did not abuse his discretion in refusing to pay such judgment.” 160 Kan. at 385.
In Watts, the court cited with approval the provisions of the Restatement of Trusts § 155 (1935), concerning discretionary trusts. The present version of this treatise contains the same language:
“Except as stated in § 156, if by the terms of a trust it is provided that the trustee shall pay to or apply for a beneficiary only so much of the income and principal or either as the trustee in his uncontrolled discretion shall see fit to pay or apply, a 'transferee or creditor of the beneficiary cannot compel the trustee to pay any part of the income or principal.” Restatement (Second) of Trusts § 155(1)(1957).
Comment b of this subsection states:
“A trust containing such a provision as is stated in this Section is a ‘discretionary trust’ and is to be distinguished from a spendthrift trust, and from a trust for support. In a discretionary trust it is the nature of the beneficiary’s interest rather than a provision forbidding alienation which prevents the transfer of the beneficiary’s interest. The rule stated in this Section is not dependent upon a prohibition of alienation by the settlor; but the transferee or creditor cannot compel the trustee to pay anything to him because the beneficiary could not compel payment to himself or application for his own benefit.”
Our reading of the trust instrument leads us to conclude that the discretionary trust language in Watts was not as strong as the discretionary language of the present case. In Watts, the trust instrument provided in part: “I hereby direct such trustees to pay said Corwin Grant Watts, at such times as to them may seem necessary, such sums of money as shall in their judgment be necessary for the proper maintenance, support and education of said Corwin Grant Watts.” 160 Kan. at 378.
In Jennings v. Murdock, 220 Kan. 182, 201, 553 P.2d 846 (1976), the Kansas Supreme Court noted:
The accepted rule is that where the instrument creating a trust gives the trustee discretion as to its execution, a court may not control its exercise merely upon a difference of opinion as to matters of policy, and is authorized to interfere only where he acts in bad faith or his conduct is so arbitrary and unreasonable as to amount to practically the same thing.’ [Citation omitted.] . . . ‘[A] court will not “at the instance of interested parties, interfere with the performance of his duties by the trustee and the exercise of the discretionary powers conferred upon him, unless there is shown bad faith on his part, or a gross and arbitrary abuse of discretion.” ’ ” 220 Kan. at 201 (quoting Elward v. Elward, 117 Kan. 458, 459, 232 Pac. 240 [1925]).
We conclude the decision of the trial court was correct, and it is affirmed. | [
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Elliott, J.:
Richard B. Ray appeals his sentence for burglary, a class D felony, K.S.A. 21-3715. Ray contends that, based on the presumptive sentence established in K.S.A. 1989 Supp. 21-4606a and -4606b, he was entitled to probation or, alternatively, assignment to a community correctional services program (community corrections).
We affirm.
Ray was originally charged with aggravated burglary and theft, but the State amended count 1 of aggravated burglary to burglary and dismissed count 2 of theft. Ray then pled no contest to the amended charge.
At the initial sentencing hearing, no final decision was reached. The trial court recognized that recent changes to the sentencing statutes require a two-step analysis. First, the trial judge examined the presumption of probation. Based on Ray’s prior record and the factors listed in K.S.A. 21-4606, the trial court found that presumptive probation under K.S.A. 1989 Supp. 21-4606a was rebutted.
The trial court’s next step was to evaluate the presumption in favor of community corrections. To determine this issue, the trial judge ordered Ray to be rescreened for community corrections purposes.
At the second sentencing hearing, Judge Allen reevaluated Ray’s file. He took into consideration Ray’s juvenile record; his adult criminal record, which consisted of several misdemeanors; the presentence investigation report; the State Reception and Diagnostic Center evaluation; and the factors listed in 21-4606. In addition, he reviewed the rescreening report and recommendation filed by community corrections. Based on this information, Judge Allen found the presumption for probation under 21-4606a was rebutted as well as the presumption for community corrections under 21-4606b. Ray was subsequently sentenced to two to five years in the custody of the Secretary of Corrections.
In determining if the trial court erred in sentencing Ray to incarceration, our scope of review is abusé of discretion. Denial of probation is not reversible error absent an abuse of discretion. State v. VanReed, 245 Kan. 213, 217, 777 P.2d 794 (1989); see State v. Wood, 235 Kan. 915, 926, 686 P.2d 128 (1984).
In 1989, the legislature amended K.S.A. 21-4606a to provide for presumptive probation for first-time class D and E felons and deleted the option for a presumptive community corrections sentence. The legislature then added 21-4606b, providing for presumptive community correction sentences, but only after the presumption for probation has been rebutted.
Past appellate decisions applying the old sentencing provisions held that article 46 should be read as a whole. For example, the court in State v. Tittes, 245 Kan. 708, 715, 784 P.2d 359 (1989), held that, in determining whether to grant probation, the district court should evaluate all the circumstances and factors contemplated by K.S.A. 21-4601 and -4606, in addition to those factors specifically mentioned in 21-4606a.
And, according to VanReed, consideration of these factors, including the extent of defendant’s prior criminal history (whether felonious or not), is sufficient to overcome the presumption of probation. See 245 Kan. at 219-20.
Although the sentencing statutes have changed since Tittes and VanReed, the reasoning of the statutes’ purposes appear intact. Legislative history does not indicate that a change in the individualized treatment policy was intended.
The trial court did not abuse its discretion in denying probation. The trial court went through the factors of 21-4606a and then evaluated the criteria of 21-4606. The trial court found that Ray had an extensive criminal history, including two juvenile convictions and eight adult misdemeanor convictions. Harm was caused by Ray’s actions. He assaulted.people and intended to cause harm by his actions (Ray held a sharp object to Henderson’s throat in the present case). The trial court further found Ray was not provoked and has not and probably will not compensate his victims for the damage caused. And, Ray was on probation at the time of the present incident. Because 21-4601 mandates an individualized sentence to fit a person’s circumstances and needs, the trial court determined the presumption of probation was rebutted.
Nor did the trial court abuse its discretion in finding the presumption for community corrections was also rebutted. As previously stated, almost every factor of 21-4606 was met. Further, Ray’s individual circumstances, such as his attitude that he can commit crimes and get away with them and probation’s past ineffectiveness, along with the trial court’s review of the rescreening report, support the finding that the presumption for community corrections was rebutted. The trial court did not act unreasonably or arbitrarily in sentencing Ray to incarceration.
In the present case, the trial court evaluated, weighed, and based its decision on the criteria of K.S.A. 21-4601 and -4606, along with 21-4606a and -4606b. No abuse of discretion has been shown. See State v. Knabe, 243 Kan. 538, 757 P.2d 308 (1988); State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986).
Affirmed. | [
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Elliott, J.:
Mearl E. Whillock, II, appeals from the sentence imposed following his no contest plea to a third felony charge of driving under the influence (DUI). We reverse in part, vacate in part, and remand with directions.
Responding to a report of an intoxicated person leaving the Oskaloosa Thiftway in a silver Dodge pickup, a sheriffs officer saw Whillock driving a silver pickup out of the parking lot. Detective Kirk Vernon placed his patrol car in front of Whillock’s truck and activated his emergency lights.
Vernon approached the truck and asked Whillock if he had been drinking; Vernon saw a half-empiy bottle of raspberry vodka between Whillock’s leg and the truck’s console. Vernon also observed a 6-year-old child in the truck.
Whillock failed a prehminary breath test and was transported to the sheriffs office where he failed field sobriety tests and consented to a breath test. Whillock’s breath alcohol content was .368. Whillock was charged as follows: Count I — felony third DUI; Count II — endangering a child; and Count III — transporting an open container of alcohol.
Pursuant to a plea agreement which is not in the record on appeal, Whillock pled no contest to a third felony DUI. There was some confusion at sentencing. The trial court sentenced Whillock to 1 year in county jail for the DUI, plus 30 days because of the presence of the minor.
The State noted the additional 30 days came from the requirement of K.S.A. 2006 Supp. 8-1567(h) that Whillock serve a mandatory 30 days in addition to whatever sentence was imposed for the third felony DUI due to the child’s presence. Accordingly, the State announced it was dismissing Counts II and III.
After the trial court pronounced a finding of guilt on Counts I and II, the State again clarified Counts II and III were dismissed due to the effect of 8-1567(h). The trial court never acknowledged on the record the conviction would only involve Count I.
On appeal, Whillock claims the additional 30-day sentence enhancement imposed violates his constitutional rights under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), and State v. Gould, 271 Kan. 394, 413, 23 P.3d 801 (2003), because the fact a child under the age of 14 was in his truck was used to enhance the sentence beyond the statutory maximum but was not proved to a jury beyond a reasonable doubt.
Whillock acknowledges he did not raise the Apprendi issue below, but we will address the challenge, as our Supreme Court has previously done in Gould, 271 Kan. at 404-05, and State v. Conley, 270 Kan. 18, 30-31, 11 P.3d 1147 (2000), cert. denied 532 U.S. 932 (2001).
The present case appears to be the first time our appellate court has been asked to consider the 1-month sentence enhancement provision of K.S.A. 2006 Supp. 8-1567(h). Our review of statutory interpretation is unlimited. State v. Bryan, 281 Kan. 157,159, 130 P.3d 85 (2006).
The federal Constitution requires that any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490. Facts that fall under the Apprendi factfinding requirement include all “facts essential to punishment.” Cunningham v. California, 549 U.S. 270, 166 L. Ed. 2d 856, 874, 127 S. Ct. 856 (2007); see Gould, 271 Kan. at 410.
K.S.A. 2006 Supp. 8-1567(f) provides that the sentencing range for the third DUI to which Whillock pled no contest is from a minimum of 90 days to a maximum of 1 year of imprisonment. The trial court imposed the maximum sentence of 1 year. And because K.S.A. 2006 Supp. 8-1567(h) mandates any “person convicted of violating this section . . . who had a child under the age of 14 years in the vehicle at the time of the offense shall have such person’s punishment enhanced by 1 month of imprisonment [which] must be served consecutively to any other penalty imposed,” the trial court imposed an additional sentence of 30 days’ imprisonment. The trial court could not decide whether to impose 30 days or a month and decided to “call it 30 days.”
The sentencing journal entry reflects a sentence of 13 months’ imprisonment. Thus, it appears there is no legitimate dispute that the fact a child under age 14 was in Whillock’s vehicle when he committed the DUI offense, and this fact increased the penalty for his third DUI beyond the prescribed statutory maximum sentence.
The question, then, becomes whether the increased sentence runs afoul of the constitutional protections found in Apprendi and Gould.
The State argues that Apprendi is not violated because, by his plea, Whillock admitted the presence of the minor child in his vehicle at the time he committed the DUI offense. We disagree. In State v. Kneil, 272 Kan. 567, 571, 35 P.3d 797 (2001), our Supreme Court declined the State’s invitation to rule that by pleading guilty, the defendant admitted to aggravating sentencing factors; see State v. Cullen, 275 Kan. 56, 61-62, 60 P.3d 933 (2003); State v. Cody, 272 Kan. 564, 565, 35 P.3d 800 (2001).
In Blakely v. Washington, 542 U.S. 296, 310,159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), Justice Scalia, speaking for a 5-4 majority, explained:
“[Njothing prevents a defendant from waiving his Apprendi rights. When a defendant pleads guilty, the State is free to seek judicial sentence enhancements so long as the defendant either stipulates to the relevant facts or consents to judicial factfinding. [Citations omitted.] If appropriate waivers are procured, States may continue to offer judicial factfinding as a matter of course to all defendants who plead guilty. Even a defendant who stands trial may consent to judicial factfinding as to sentence enhancements, which may well be in his interest if relevant evidence would prejudice him at trial. We do not understand how Apprendi can possibly work to the detriment of those who are free, if they think its costs outweigh its benefits, to render it inapplicable.”
In the present case, we emphasize Whillock pled no contest; he did not plead guilty. A plea of no contest “does not admit the allegations of the charge, but merely says that defendant does not choose to defend.” Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 68, 91, 193 P.2d 656 (1948). Whillock neither stipulated to the presence of a child under the age of 14 in his vehicle, nor did he consent to the court finding such a fact.
Because the fact of the child’s presence in the vehicle was not proved to a jury beyond a reasonable doubt, Whillock’s constitutional rights as recognized in Apprendi and Gould were violated when the trial court used that fact to increase the maximum 1-year sentence for a third DUI under K.S.A. 2006 Supp. 8-1567(f) by 30 days (1 month) in accordance with K.S.A. 2006 Supp. 8-1567(h). Accordingly, Whillock’s sentence must be vacated and the case remanded for resentencing.
Although unconstitutional as applied to Whillock under the facts of this case, we are not ruling K.S.A. 2006 Supp. 8-1567(h) to be facially unconstitutional. A statute is unconstitutional on its face only if “no set of circumstances exists under which the [statute] would be valid.” United States v. Salerno, 481 U.S. 739, 745, 95 L. Ed. 2d 697, 107 S. Ct. 2095 (1987).
Whillock next argues the trial court erred in ordering him to reimburse Board of Indigents’ Defense Services (BIDS) for his attorney fees because it failed to consider his ability to pay, the financial burden that payment would impose, and the validity of tire fees.
The trial court ordered Whillock to pay court-appointed attorney fees, but it made no findings during sentencing regarding Whillock’s ability to pay the fees or the financial burden that payment would impose.
The fact that there may be evidence in the record to support the necessary findings required by K.S.A. 2006 Supp. 22-4513 is inadequate. In State v. Robinson, 281 Kan. 538, 546, 132 P.3d 934 (2006), the court concluded that “the sentencing court, at the time of initial assessment, must consider the financial resources of the defendant and the nature of the burden that payment will impose explicitly, stating on the record how those factors have been weighed in the court’s decision.”
Because the trial court did not explicitly consider any of the factors listed in K.S.A. 2006 Supp. 22-4513 in ordering Whillock to pay court-appointed attorney fees, that order is vacated and remanded to consider the issue in accordance with the teachings of Robinson.
Whillock also argues the trial court erred in assessing tire $100 BIDS application fee in the journal entry of sentencing when the fee was not mentioned at sentencing. The sentencing transcript confirms the trial court did not pronounce as part of Whillock’s sentence an order that he pay the BIDS application fee.
Our Supreme Court recently reiterated the longstanding rule that a “criminal sentence is effective upon pronouncement from the bench; it does not derive its effectiveness from the journal entry. A journal entry that imposes a sentence at variance with that pronounced from the bench is erroneous and must be corrected to reflect die actual sentence imposed.” Abasolo v. State, 284 Kan. 299, Syl. ¶ 3, 160 P.3d 471 (2007).
In the present case, the record on appeal, which appears representative of the routine in most BIDS cases, does not indicate Whillock was ever ordered or otherwise directed to pay the BIDS application fee to the clerk of the court, either at the time he applied for court-appointed counsel or up to the time of sentencing. Instead, the BIDS application fee appeared for the first time in the journal entry of sentencing. This is improper.
The sentencing journal entry is nothing more than a “ ‘record of the sentence imposed.’ ” Abasolo, 284 Kan. at 303. The order with respect to the BIDS application fee is reversed.
The enhanced sentence for the third felony DUI is vacated and remanded for resentencing; the BIDS attorney fee order is vacated and remanded for resentencing in accordance with Robinson; the BIDS application fee order is reversed. | [
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Caplinger, J.:
Anthony J. Martin appeals the district court’s judgment affirming the Kansas Department of Revenue’s suspension of his driver’s license. We affirm.
Factual and procedural background
On April 28, 2004, at approximately 5 p.m., Anthony Martin left the business he owned in Glaseo, Kansas, and drove to a golf course to do some work. He had a few beers at the golf course and sometime later consumed two or three more beers at a local bar. Martin left the bar sometime between 9:30 p.m. and 9:50 p.m. and got into his vehicle, which was parked across the street from the bar.
Cloud County Sheriff s Deputy Bradley Swihart witnessed Martin leave the bar, back his vehicle into the street, and drive forward a short distance without using his headlights. Swihart activated his emergency lights and attempted to pull Martin over for failure to use headlamps, in violation of K.S.A. 8-1703(a). Martin then turned right into an alleyway without using his turn signal, drove approximately 50 yards, parked behind his place of business, and walked quickly toward the business’ back door.
Martin testified at the suppression hearing that when he got out of his vehicle he saw Deputy Swihart pull up with his vehicle’s emergency lights activated. According to his testimony, Martin continued toward the back door of his business because he thought the officer was “joking around.” Deputy Swihart exited his vehicle and followed Martin to the back door of his business. As Martin entered the door, Deputy Swihart asked him what he was doing and if he had seen the emergency lights. Martin told the deputy he saw the lights but that he wanted to make sure the front door to his store was locked. Martin then advised the deputy he would be right back.
As Deputy Swihart followed Martin into the store, he noticed Martin was swaying, stumbling, and staggering as he walked. After Martin checked the front door, Deputy Swihart asked if Martin had been drinking, to which Martin replied, “yes.” Deputy Swihart then asked Martin how many beers he had, and Martin responded, “five or six.” During this time, the deputy also detected a strong odor of alcohol on Martin’s breath and noticed his eyes were bloodshot. Deputy Swihart asked Martin to step outside and perform field sobriety tests.
Inside the store, Martin attempted to light a cigarette. Deputy Swihart instructed Martin not to do so because Swihart wanted to perform a preliminary breath test (PBT). Marlin later lit a cigarette outside, and Deputy Swihart told him to put it out. Deputy Swihart explained to Martin at least twice that Martin could not put anything into his mouth as it would affect the PBT. Nevertheless, Martin continued to attempt to put cigarettes and some type of candy in his mouth.
Deputy Swihart decided not to administer a PBT, because the test required a 15-minute deprivation period that started over each time Martin put something in his mouth. At some point, Martin told Deputy Swihart that he (Martin) “did not believe he would pass a breath test.”
Outside the store, Deputy Swihart asked Martin to perform the “one-leg-stand” field sobriety test. During the test, Martin leaned against his vehicle for support. Deputy Swihart instructed him to move away from the vehicle, but Martin continued to lean against it. Martin also “put his foot down, raised his arms for balance, swayed and hopped showing all four clues.” The deputy did not give Martin the “walk and turn” test because Martin did so poorly on the one-leg-stand test and because it was windy at the time.
At some point during the encounter, Deputy Swihart also administered the horizontal gaze nystagmus test (HGN). Although the record does not indicate the precise conclusions drawn from the test, Deputy Swihart testified the results formed part of his basis for probable cause to believe Martin was driving under the influence. Ultimately, Deputy Swihart placed Martin under arrest for DUI, and Martin agreed to take the Intoxilyzer breath test. The Intoxilyzer measured Martin’s blood/alcohol content at .235.
Deputy Swihart provided Martin a notice of suspension and certified the findings to the Kansas Department of Revenue (KDR). After an administrative hearing, the hearing officer suspended Martin’s license for a year. Martin sought judicial review in the district court, arguing Deputy Swihart did not have reasonable sus picion for the traffic stop, lacked probable cause to arrest for DUI, and failed to follow KDHE testing procedures for the Intoxilyzer 5000 because he left the observation room during the deprivation period.
The district court affirmed the suspension of Martin’s driving privileges. In its transcribed decision, the court found Deputy Swihart had reasonable suspicion to conduct the traffic stop as he had witnessed Martin commit two traffic infractions, i.e., failure to use headlamps and failure to use a turn signal. The court also found “an abundance of . . . facts” supported a conclusion that Deputy Swihart had probable cause to believe Martin was under the influence at alcohol at the time of arrest. In addition, noting the Intoxilyzer did not indicate the existence of mouth alcohol or odierwise indicate Martin’s breath sample was insufficient, the district court found Deputy Swihart substantially complied with the KDHE protocol in administering the test.
On appeal, Martin argues the district court erred in affirming the KDR’s decision to suspend his license. Specifically, Martin maintains Deputy Swihart did not have reasonable suspicion to conduct the traffic stop, did not have probable cause to arrest Martin for DUI, and failed to comply with the KDHE protocol requiring officers to keep test subjects within their “immediate presence” during the deprivation period.
The State argues the two traffic infractions observed by Deputy Swihart provided justification for the stop, substantial competent evidence supported the district court’s finding that reasonable grounds existed for Martin’s arrest, and Deputy Swihart substantially complied with the KDHE “immediate presence” requirement.
Standard of review
A district court exercises de novo review over a KDR decision to suspend an individual’s driver’s license. Nickelson v. Kansas Dept. of Revenue, 33 Kan. App. 2d 359, 362, 102 P.3d 490 (2004). This court reviews the district court’s decision under a substantial competent evidence standard. 33 Kan. App. 2d at 362. Substantial evidence is that which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. 33 Kan. App. 2d at 362. When interpreting a statute, this court’s review is unlimited. Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
Reasonable suspicion
‘Without making an arrest, a law enforcement officer may stop any person in a public place whom such officer reasonably suspects is committing, has committed or is about to commit a crime and may demand of the name, address of such suspect and an explanation of such suspect’s actions.” K.S.A. 22-2402(1) (codification of the United State’s Supreme Court’s ruling in Terry v. Ohio, 392 U.S. 1, 24, 30-31, 20 L. Ed. 2d 889, 88 S. Ct. 1868 [1968]). “In order to justify a further detention for questioning on matters not related to the original stop, the officers must have reasonable suspicion that the individual has committed, is committing, or is about to commit some other crime.” Nickelson, 33 Kan. App. 2d at 366 (citing State v. Schmitter, 23 Kan. App. 2d 547, 550-52, 933 P.2d 762 [1997]).
K.S.A. 8-1703(a) requires the use of headlights any time from “sunset to sunrise and at any other time, when due to insufficient light or unfavorable atmospheric conditions, person and vehicles on the highway are not clearly discernible at a distance of 1000 feet ahead . . . .”
Martin argues the State failed to prove his alleged failure to use headlamps occurred between sunset to sunrise as required by the statute, and thus could not provide a basis for the stop. Martin further argues his failure to use a turn signal cannot provide a basis for reasonable suspicion, because Deputy Swihart’s certification to the KDR did not indicate this reason as a basis for the stop.
We need not consider the deputy’s second basis for stopping the vehicle, as the officer’s observation of defendant’s failure to use headlamps was sufficient standing alone to provide the reasonable suspicion required for the stop. We may take judicial notice that on the date of Martin’s arrest, April 28,2004, sunset occurred prior to 9:20 p.m. in Glaseo, Kansas. See K.S.A. 60-409 (judicial notice may be taken of such facts generally known or of such common notoriety that they cannot reasonably be the subject of dispute). Because it was undisputed that the events leading to Martin’s arrest occurred between 9:20 p.m. and 9:50 p.m. on that date, the arresting deputy clearly had a reasonable suspicion that defendant violated K.S.A. 8-1703.
Probable cause
Defendant next asserts that Deputy Swihart did not have probable cause to arrest him for DUI.
Probable cause to arrest refers to knowledge of facts and circumstances that would lead a prudent person to believe an individual is committing or has committed a crime. Existence of probable cause is determined from consideration of the information and fair inferences from it which were known to the officer at the time of arrest. Sullivan v. Kansas Dept. of Revenue, 15 Kan. App. 2d 705, 707, 815 P.2d 566 (1991). “Probable cause to arrest is that quantum of evidence that would lead a reasonably prudent police officer to believe that guilt is more than a mere possibility.” Campbell v. Kansas Dept. of Revenue, 25 Kan. App. 2d 430, 431, 962 P.2d 1150, rev. denied 266 Kan. 1107 (1998)
Martin claims the odor of alcohol was the only valid factual basis for his DUI arrest. In his brief, Martin also suggests in passing that Deputy Swihart improperly entered his store before detecting the odor. He offers no explanation for this assertion, but cites State v. Smith, 243 Kan. 715, 717, 763 P.2d 632 (1988), which holds that the prohibition against warrantless searches extends to an individual’s place of business. We note that the district court did not address this issue, although Martin mentioned it in his trial brief.
“A point raised only incidentally in a party’s brief but not argued in the brief is deemed abandoned.” Titterington v. Brooke Insurance, 277 Kan. 888, Syl. ¶ 3, 89 P.3d 643 (2004). Therefore, we decline to address any issue raised by Martin regarding Deputy Swihart’s warrantless entry into the store.
Martin also argues Deputy Swihart improperly relied on the results of the HGN test as a basis for probable cause because such results are inadmissible as substantive evidence pursuant to State v. Witte, 251 Kan. 313, 329, 836 P.2d 1110 (1992). This court need not address that issue, however, because Deputy Swihart clearly had probable cause to arrest even without the test results. Indeed, the probable cause basis in this case is just as strong, if not stronger, than that upheld by the Kansas Supreme Court in the principal case relied upon by Martin, City of Dodge City v. Norton, 262 Kan. 199, 205, 936 P.2d 1356 (1997).
In Norton, an officer received a report of a man believed to be intoxicated causing a disturbance in a trailer park. The officer later noticed the defendant driving a vehicle that matched the description of the suspect’s vehicle. The officer followed the defendant as he swayed within his lane and narrowly missed construction barrels. After the defendant parked next to a bar, the officer made contact.
The defendant told the officer he went to the trailer park to see a friend and came back to the bar for “a couple more drinks.” 262 Kan. at 201. The officer noticed the defendant’s eyes were “a little bit pink around the edges or blood shot.” 262 Kan. at 201. During the performance of the heel-to-toe test, the defendant became slightly off-balance and missed a few heel-to-toe touches. The officer subsequently approached the defendant to arrest him and noticed a “faint to moderate, but noticeable, odor of alcohol.” 262 Kan. at 202.
Here, Deputy Swihart watched Martin back out of a parking spot across the street from a bar late in the evening. Martin initially did not engage his headlamps, and he failed to pull over upon being summoned to stop by the deputy’s emergency lights. Instead, Martin turned right into an alleyway without using his turn signal, drove approximately 50 yards, parked behind his place of business, and walked quickly toward the business’ back door. He did not acknowledge Deputy Swihart until the deputy asked him what he was doing and if he had seen the emergency lights.
As Deputy Swihart followed Martin into the store, he noticed Martin was swaying, stumbling, and staggering. Martin admitted he had drunk “five or six” beers, his eyes were bloodshot, and his breath smelled strongly of alcohol. Martin also failed the one-leg-stand test. In addition, Martin admitted he would fail the PBT if he took it.
Moreover, during the encounter, Martin attempted to put cigarettes and candy in his mouth, despite Deputy Swihart’s multiple orders not to do so. While Deputy Swihart did not observe Martin weave within his lane or drive erratically, we conclude Martin’s actions, his admissions, and the strong odor of alcohol emanating from his breath more than demonstrated probable cause to arrest him for DUI.
Testing procedures
Martin had the burden to prove the testing procedures used by Deputy Swihart did not substantially comply with testing procedures promulgated by the KDHE. See Schoen v. Kansas Dept. of Revenue, 31 Kan. App. 2d 820, 823, 74 P.3d 588 (2003) (citing K.S.A. 8-1020[h][2][F], [q]). “Substantial compliance” has been defined as “ ‘compliance in respect to the essential matters necessary to assure every reasonable objective.’ ” Burkhart v. Kansas Dept. of Revenue, Case No. 91,345, unpublished decision filed Sept. 10, 2004 (quoting Orr v. Heiman, 270 Kan. 109, 113, 12 P.3d 387 [2000]).
The KDHE testing procedure at issue in this case states: “Keep the subject in your immediate presence and deprive the subject of alcohol for 20 minutes immediately preceding the breath test.” (Emphasis added.) However, this court has not required strict adherence to the KDHE testing procedures where there is no evidence indicating the Intoxilyzer malfunctioned or the breath sample was contaminated. See Schoen, 31 Kan. App. 2d at 823 (court found substantial compliance with requirement that officer check to make sure tubing was properly connected even though officer did not visually do so; court noted that if tubing was not properly connected, the officer would have heard a difference or the machine would not have worked); State v. Anderson, Case No. 94,364, unpublished decision filed April 7, 2006 (court found substantial compliance with “immediate presence” requirement even though test subject out of testing officer’s view for 2 minutes).
In Anderson, the court also found it “significant” that the appellant did not allege “either to the trial court or on appeal, that he either belched, burped, vomited, or otherwise drew fluids up from his stomach at any time during the deprivation period.” Slip op. at 3.
Here, the videotape reveals that Deputy Swihart stepped out of the testing room several times for only a few seconds at a time. Further, although the videotape indicates Martin coughed and cleared his throat several times during the testing period, Martin does not suggest that he belched, burped, vomited, regurgitated, or otherwise introduced substance into his mouth from his stomach during the testing period. In fact, Martin’s testimony indicates he did not do so. Martin also testified he did not drink any alcohol during the 20 minutes leading up to the test.
Under these circumstances, we find the testing procedures in this case substantially complied with the KDHE’s “immediate presence” requirement.
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Greene, J.:
Michael R. Young appeals the district court’s judgment against him on his claim for specific performance of a contract to purchase a tract of real estate resulting from his bid at an auction (tract 3). Edward G. Hefton, and other members of the Hefton family who were the sellers at that auction, cross-appeal the district court’s judgment of specific performance in favor of Young on a different tract of real estate placed at auction by the Heftons (tract 4). We affirm the district court’s conclusion that there was no contract formed on tract 3, but that an enforceable contract was formed on tract 4.
Factual and Procedural Background
The Hefton family hired an auctioneer to sell five tracts of land at public auction to be held October 8, 2005, and the listing agreement set a minimum price on each tract. The auction was advertised extensively in newspapers, by public sale bills, and on the auctioneer’s website. These public notices were not consistent as to the terms of the auction, but none of them specifically stated there were minimums or that the auction was “with reserve.” The sales bill, however, stated: “All contracts will be signed at the end of the auction. Earnest money is only refundable if seller rejects contract.”
On the day of the auction, the auctioneer made announcements regarding the terms of each sale, but the evidence is conflicting as to the content of such announcements. Four witnesses and the auctioneer testified that the announcements mentioned that bids or contracts were subject to final approval by the sellers, whereas seven other witnesses testified that diere was no mention of minimums or conditional contracts.
Young had expressed interest in the sale prior to the auction and had inquired of the auctioneer about the terms of the sales, but the evidence is conflicting as to the content of these conversations as they related to mínimums. In any event, Young attended the auction and was the successful bidder on both tracts 3 and 4. On both bids, the auctioneer closed the bidding at Young’s bids with the call, “Mark it down.” As to Young’s bid on tract 3, the bid was $925/acre or $275/acre under the minimum established by the Heftons. As to Young’s bid on tract 4, the bid was $780/acre or $30 above the minimum of $750/acre.
Following the bidding, Young was told by the auctioneer that he could not buy tract 3 due to his bid being under the minimum of $1200/acre, but that he could purchase tract 4. Young responded by saying he did not want tract 4 without tract 3. A discussion ensued, but no accommodation was reached and Young left the auction with the parties at an impasse.
Five days later, Young tendered checks to the Heftons’ attorney for both tracts at the bid prices. These checks were returned to Young suggesting that he contact the auctioneer. Young then tried to purchase tract 4 at his bid price with a tender to the auctioneer, but the check was rejected with a counteroffer of $1500/acre, twice the original minimum for this tract. Young then filed his action against the Heftons seeking specific performance of purported contracts on both tracts at the bid prices.
After a bench trial, the district court found the auction was intended to be a sale with reserve because the Heftons communicated the mínimums on the tracts to the auctioneer, who “failed to clearly communicate with prospective purchasers information they would want to know and deserved to know, simply whether there were mínimums on the tracts.” The court also found that there were “signs and indications before and during this auction that the sellers were retaining some measure of final approval or control. The sale bill’s reference to seller rejection of contracts so indicates.” The court admitted that the language is open to interpretation, one being that contracts are subject to approval of the sellers for whatever reason.
The district court found that there was no meeting of the minds as to tract 3 because Young offered $925/acre, the minimum was $1200/acre, and the two parties did not agree on a price term. It concluded that no contract existed between the parties as to tract 3.
The court found that a valid contract was formed as to tract 4 when the auctioneer indicated the sellers’ acceptance of Young’s high bid of $780/acre after the bidding. It found that Young neither rescinded nor repudiated the contract on tract 4, and that Young was entitled to specific performance at the bid price of $780 per acre.
Both parties appeal.
Standards of Review
Whether a binding contract has been formed depends on the intention of the parties and is a question of fact. Reimer v. The Waldinger Corp., 265 Kan. 212, 214, 959 P.2d 914 (1998). When the district court has made findings of fact and conclusions of law, we determine whether those findings are supported by substantial competent evidence and whether the findings sufficiently support the conclusions of law. Southwest & Assocs., Inc. v. Steven Enterprises, 32 Kan. App. 2d 778, 780, 88 P.3d 1246 (2004). Substantial competent evidence is such legal and relevant evidence as to provide a substantial basis of fact from which the issues can reasonably be resolved U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003).
With regard to the statute of frauds question framed by this appeal, our standard of review in determining whether an alleged contract satisfies the statute of frauds involves the interpretation of a statute and is unlimited. Ayalla v. Southridge Presbyterian Church, 37 Kan. App. 2d 312, 317, 152 P.3d 670 (2007).
Did the District Court Err in Concluding a Contract Was Formed as to Tract 4 but not as to Tract 3?
General Rules Pertaining to Auctions
The district court commented that there is “a virtual absence of case law in Kansas with respect to auction sales of realty” and that there are no Kansas statutes governing this type of transaction. We agree, but we note that K.S.A. 84-2-328, of the Kansas Uniform Commercial Code — Sales, sets forth rules for auction sales of “goods” and is instructive although not technically applicable to auction sales of real estate. See Well v. Schoeneweis, 101 Ill. App. 3d 254, 257-58, 427 N.E.2d 1343 (1981); (holding that although U.C.C. 2-328 does not apply to auctions of real estate, the same laws apply to real and personal property); Chevalier v. Sanford, 475 A.2d 1148, 1149 (Me. 1984) (applying U.C.C. 2-328 by analogy); Forbes v. Wells Beach Casino, Inc., 307 A.2d 210, 219 (Me. 1973) (applying U.C.C. 2-328 and finding no significant difference between real and personal property law); Outpost Cafe, Inc. v. Fairhaven Savings Bank, 3 Mass. App. 1, 3, 322 N.E.2d 183 (1975) (applying U.C.C. 2-328 same as to the sale of real property); Hoffman v. Horton, 212 Va. 565, 567, 186 S.E.2d 79 (1972) (same). Our statute, K.S.A. 84-2-328, provides:
“(1) In a sale by auction if goods are put up in lots each lot is the subject of a separate sale.
“(2) A sale by auction is complete when the auctioneer so announces by the fall of the hammer or in other customary manner. . . .
“(3) Such a sale is with reserve unless the goods are in explicit terms put up without reserve. In an auction with reserve the auctioneer may withdraw the goods at any time until he announces completion of the sale. In an auction without reserve, after the auctioneer calls for bids on an article or lot, that article or lot cannot be withdrawn unless no bid is made within a reasonable time. In either case a bidder may retract his bid until the auctioneer’s announcement of completion of the sale, but a bidder’s retraction does not revive any previous bid.
“(4) If the auctioneer knowingly receives a bid on the seller’s behalf or the seller makes or procures such a bid, and notice has not been given that liberty for such bidding is reserved, the buyer may at his option avoid the sale or take the goods at the price of the last good faith bid prior to the completion of the sale. This subsection shall not apply to any bid at a forced sale.”
The general rule regarding terms and conditions of an auction sale is tibat the seller of property at auction has the right to prescribe, within reasonable limits, the manner, conditions, and terms of sale. Usually the auctioneer, at the time and place appointed for the auction, announces these terms and conditions that, when so announced, are generally deemed to supersede all others and to bind the purchaser even though he or she did not hear or understand the announcement or was not present at the time of the announcement and such terms were not brought to his or her actual attention. Money v. Ft. Hays State Univ. Endowment Ass’n, 31 Kan. App. 2d 322, 327, 64 P.3d 458, rev. denied 276 Kan. 969 (2003); 7 Am. Jur. 2d, Auctions and Auctioneers § 17.
There are generally three types of auctions: (i) with reserve; (ii) without reserve; and (hi) conditional. K.S.A. 84-2-328 recognizes a presumption that an auction is “with reserve” unless there are explicit terms to the contrary. In an auction with reserve, the placing of the property for sale is an invitation for bids, not an offer to sell. Accordingly, each bid constitutes an offer that may be accepted by the seller. Bids are accepted on the seller’s behalf and a contract is formed when the auctioneer closes the bidding, typically by the fall of the hammer or other method that notifies the high bidder that the bid has been accepted. See 7 Am. Jur. 2d, Auctions and Auctioneers §§ 17, 20, 31. In an auction with reserve, the seller does not have any right to accept or reject bids after the close of the bidding. See J & L Investment v. DNR, 233 Mich. App. 544, 551, 593 N.W.2d 196 (1999).
In an auction without reserve (also called an “absolute” auction), the placing of property for sale constitutes an offer to sell and each bid represents a conditional acceptance, subject to receipt of a higher bid. Accordingly, the seller is bound by each successive bid and may not withdraw the property from sale unless no bid is made within a reasonable time. Thus, in an auction without reserve, the seller may not withdraw or refuse to sell the property once the bidding has been opened on that property unless no bid is made within a reasonable time. 7 Am. Jur. 2d, Auctions and Auctioneers § 36; see Feaster Trucking Service, Inc. v. Parks-Davis Auctioneers, Inc., 211 Kan. 78, 82-83, 505 P.2d 612 (1973).
In a conditional auction, the seller reserves the right to accept or reject bids after the close of the bidding. Most authorities recognize that in order for an auction to be considered a conditional auction, the conditions must be effectively communicated to prospective bidders. Those conditions generally inform potential buyers that the auctioneer does not have the authority to accept the high bid and that bids will remain mere offers until accepted by the sellers. See, e.g., Money, 31 Kan. App. 2d 322, Syl. ¶ 6; Cuba v. Hudson & Marshall, 213 Ga. App. 639, 640, 445 S.E.2d 386 (1994) (“[T]here is a distinction between auctions which are merely conducted with reserve and those in which the seller explicitly reserves the right to approve, confirm or reject the high bid.”); see also Coleman v. Duncan, 540 S.W.2d 935, 937 (Mo. App. 1976); East v. Brown, 986 P. 2d 523, 525 (Okla. App. 1999). The key distinction between an auction with reserve and a conditional auction is that property can only be withdrawn before the close of bidding in the former, but it can be withdrawn after the close of bidding in the latter.
What type of auction was involved here?
Here, the district court found that the sales bill contained the language: “All contracts will be signed at the end of the auction. Earnest money is only refundable if seller rejects contract.” The court then concluded this language may be open to several interpretations, but “one obvious interpretation is that all contracts are subject to final approval of the sellers for whatever reason.” Although the auctioneer s website did not mention conditional terms, it said: “Any announcement made the day of the auction takes precedence of any printed ad.” Finally, regarding any such announcements, the district court found there was conflicting testimony regarding preliminary announcements at the auction, but concluded “[t]here were signs and indications before and during this auction that the sellers were retaining some measure of final approval or control.” We decline to reweigh die conflicting evidence; we simply review the record and conclude substantial competent evidence supports these findings of the district court.
Based upon these findings, we conclude the sales auction was indeed a conditional auction where the sellers retained the right to accept or reject bids until after the bidding ceased. Our conclusion is not only the result of the district court’s findings as to “sellers retaining some measure of final approval,” but it is also buttressed by the auctioneer’s testimony that “mark it down” was not an indication of bid acceptance and should be contrasted to a call of “sold” when the auction is absolute. The call “mark it down” has been interpreted as merely an indication to record the highest bid for seller consideration. See, e.g., Marten v. Staab, 4 Neb. App. 19, 30-31, 537 N.W.2d 518 (1995), aff'd 249 Neb. 299, 543 N.W.2d 436 (1996). Because the auction was conditional, Young’s bids were offers subject to sellers’ acceptance after the bidding closed at the auctioneer’s call of “mark it down.”
Was a contract formed as to either tract?
Having concluded the sales auction was conditional, did the sellers accept Young’s bids for tracts 3 and 4? Young was informed by the auctioneer that his bid was not accepted for tract 3. Clearly, there was no contract formed on tract 3, and the district court did not err in so holding.
As to tract 4, the district court found:
“Young was advised however that he could go ahead and sign a contract on Tract 4 since his high bid of $780 met or exceeded the minimum. Mr. Young’s response was that he was not interested in purchasing Tract 4 alone at that time. Rather, he expected and desired to buy both tracts for the high bid that he had made on each tract.
“After considerable back and forth between Mr. Young and [the auctioneer] it was clear that the parties were at an impasse. Mr. Young left. He contacted his attorneys almost immediately.”
The district court held that a contract was formed between the parties when Young’s high bid was accepted after the auction by the auctioneer. Although Young refused to execute a written contract that day, the court held he “neither rescinded nor repudiated the contract on Tract 4. He simply paused long enough to try and determine whether he could compel the sale to him of both tracts.” Whether there has been a contract repudiation within a reasonable time is a question of fact. See Theis v. duPont, Glore Forgan, Inc., 212 Kan. 301, 304-05, 510 P.2d 1212 (1973). Here, we conclude there is substantial competent evidence to support the court’s finding of no repudiation.
Young testified that he continued to reiterate to the auctioneer that he did not want to purchase tract 4 alone, but that he wanted to purchase both tracts. He testified he never rescinded or repudiated the contract or bid. He also testified that he had several conversations with the auctioneer after the auction. Finally, when most people had left, Young told the auctioneer, “ ‘If you don’t think this is going to be resolvable, you know, I can’t stay forever.’ ” Young testified that he waited a little longer while the auctioneer was talking to someone else and then he finally left. Later, Young tendered earnest money and an executed contract on this tract. The district court apparently believed Young’s testimony that he did not intend to repudiate the contract and merely left the auction at a negotiating impasse.
Based upon our conclusion that the auction was conditional in nature, Young’s bid was never accepted on tract 3, but his bid on tract 4 was accepted after the close of the auction and was not repudiated by Young. Unless barred by the statute of frauds, a contract was formed on tract 4 by Young’s offer through his bid and by the auctioneer’s acceptance on behalf of sellers following the sales auction.
Does the Statute of Frauds Bar Young’s Contract Claim on Tract 4?
The Heftons argue that Young’s claim for specific performance of a contract on tract 4 is barred by the applicable statute of frauds, K.S.A. 33-105 and K.S.A. 33-106, requiring contracts for sale of real estate to be in writing and signed by the parties to be bound. The district court addressed this claim in its early denial of the Heftons’ motion for summary judgment, reasoning:
“Here, Plaintiff has proffered four documents that he claims are sufficient to satisfy the Statute of Frauds in this matter: the listing agreement between the Defendants and the auctioneer, the internet sale biE, and bid sheets for the two tracts of land at issue herein. The Court finds that the parties to the contract are adequately identified by the fisting agreement identifying the seEers and signed by Edward Hefton, and the bid receipts, identifying Michael Young by his signature. The internet advertising materials, which Plaintiff claims to have possessed at the time of the auction, adequately describes the lands to be sold, by picture and legal description, and the terms of the sale, including estimated closing dates, possession dates, and earnest money requirements, among other. Finally, the Court finds that the price term is adequately reflected in the bid receipts for the tracts of land at issue. Therefore, the Court finds that the Statute of Frauds has been satisfied in this matter.”
A sale of land at auction is within the statute of frauds to the same extent as any other sale or contract of sale relating to land. 7 Am. Jur. 2d, Auctions and Auctioneers § 37. In order to satisfy the statute of frauds, the writings concerning the sale should contain everything necessary to show the contract between the seller and buyer. 7 Am. Jur. 2d, Auctions and Auctioneers § 43. For purposes of satisfying tire statute of frauds, separate writings may be construed together to determine whether there is sufficient written agreement upon which to base an enforceable contract. See Barnhart v. McKinney, 235 Kan. 511, 523-24, 682 P.2d 112 (1984); In re Estate of Bradley, 179 Kan. 539, 542, 297 P.2d 180 (1956). We examine the applicable statutes and the evidence in the record and conclude that the district court correctly applied the statutes in holding that the writings of the parties were sufficient.
K.S.A. 33-105 states:
“No leases, estates or interests of, in or out of lands, exceeding one year in duration, shall at any time hereafter be assigned or granted, unless it be by deed or note, in writing, signed by the party so assigning or granting the same, or their agents thereunto lawfully authorized by writing, or by act and operation of law.”
K.S.A. 33-106 states:
“No action shall be brought whereby to charge a party . . . upon any contract for the sale of lands . . . unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.”
In Kenby Oil Co. v. Lange, 30 Kan. App. 2d 439, 442, 42 P.3d 201 (2002) (citing Walton v. Piqua State Bank, 204 Kan. 741, 747, 466 P.2d 316 [1970]), the court stated:
“ ‘ “A Memorandum, in order to be enforceable under the statute of frauds, may be any document or writing, formal or informal, signed by the party to be charged or by his lawfully authorized agent, which states with reasonable certainty (a) each party to the contract either by his own name, or by such a description as will serve to identify him, or by the name or description of his agent, (b) the land or other subject matter to which the contract relates, and (c) the terms and conditions of all the promises constituting the contract and by whom and to whom the promises are made.” ’ [Citation omitted.]”
See Restatement (Second) of Contracts § 131 (1979).
In this case, the district court’s findings are supported by substantial competent evidence. K.S.A. 33-105 and K.S.A. 33-106 are satisfied by the “Exclusive Right to Sell Listing Agreement,” which identifies the tracts of land to be sold and is signed by Ed Hefton, for sellers, together with the “Bid Sheet Information” or bid receipt and check reflecting earnest money signed by Young. The land is described in the Internet sales bill, the printed sales bill, and the listing agreement. Finally, all terms and conditions of the sale are in the Internet sales bill and printed sales bill.
The district court’s finding that Young’s claim on tract 4 is not barred by the statute of frauds must be affirmed.
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Marquardt, J.:
Gaiy R. Elrod appeals his convictions for two counts of criminal sodomy and two counts of indecent liberties with a child. We affirm.
D.T. has known her stepfather, Elrod, since 1998. D.T. testified that she had a “pretty good” relationship with Elrod. D.T. testified that after she turned 10, Elrod began to do inappropriate things, like asking her to sit on his lap, making suggestive remarks, and telling her that she looked “sexy.”
According to D.T., when she was 12 years old, she accompanied her family to Missouri for a vacation. D.T. testified that she got a leg cramp while swimming and Elrod offered to rub her leg. As Elrod was rubbing her leg, he put his fingers in her vagina. D.T. alleged that during that same vacation, Elrod performed oral sex on her.
D.T. told her mother, who confronted Elrod. Elrod admitted that D.T.’s accusations were true. Later, Elrod testified that the incidents never happened and he only confessed because he loved his wife and thought they could work through D.T.’s problems if he admitted her accusations. D.T.’s mother asked D.T. if she wanted to report it to the police; D.T. declined.
D.T. testified that the routine she had with Elrod consisted of him manually and orally stimulating her. D.T. testified that Elrod had nicknames for her vagina and clitoris and when Elrod used the word “froggy,” he wanted to “horseplay.” Elrod admitted to using the term “frogging,” but said it meant horseplay, tickling, punching, and “blowing raspberries.”
D.T. testified that Elrod would remove her clothes, but he always remained fully clothed. She stated that he would fondle her breasts, buttocks, and vagina with his hand or mouth every day. D.T. testified that Elrod “blew raspberries” on her stomach, vagina, vaginal lips, breasts, and butt. She said that between 5 or 7 times, he put his finger in her vagina.
D.T. testified that the last incident with Elrod which occurred in October 2004 was different because Elrod seemed “more into it” and was enjoying it “way too much.” She said that she was on her back and he was “playing with my vagina or blowing raspberries or something along those lines.”
Eventually, one of D.T.’s friends asked her if she was being sexually abused. D.T. answered in the affirmative. The friend told D.T. to report it to an authority. D.T. told a school administrator who notified SRS. In November 2004, D.T. called SRS and attempted to recant her allegations. Later, D.T. testified that the abuse happened, but she tried to recant her allegations because she was “stressed and [she] was really sick of everything.”
Elrod was charged with four counts of aggravated criminal sodomy, four counts of criminal sodomy, two counts of indecent liberties with a child, and one count of indecent solicitation of a child. A jury trial was held and at the close of the State’s case, Elrod moved for a directed verdict. The trial court granted his motion as to two counts of aggravated criminal sodomy and one count of indecent solicitation of a child. Elrod was convicted of two counts of criminal sodomy and two counts of indecent liberties with a child. He received a controlling sentence of 61 months’ imprisonment. Elrod appeals his convictions.
Sufficiency of Evidence
Elrod claims that D.T. was only able to identify two dates for the crimes in question and one of those incidents occurred in Missouri. Elrod contends that there was insufficient evidence to prove criminal sodomy because “blowing raspberries” on D.T.’s vaginal area does not constitute criminal sodomy.
When the sufficiency of the evidence is challenged in a criminal case, the standard of review is whether, after review of all the evidence, viewed in the light most favorable to the prosecution, the appellate court is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt. State v. Kesselring, 279 Kan. 671, 679, 112 P.3d 175 (2005).
K.S.A. 21-3505 criminalizes certain acts of sodomy, including those which occur with a child who is 14 or more years of age but less than 16 years of age. K.S.A. 21-3501(2) defines sodomy as “oral contact or oral penetration of the female genitalia or oral contact of the male genitalia; anal penetration, however slight, of a male or female by any body part or object; or oral or anal copulation or sexual intercourse between a person and an animal.”
In State v. Price, 30 Kan. App. 2d 569, 43 P.3d 870 (2002), rev’d on other grounds 275 Kan. 78, 61 P.3d 676 (2003), a panel of this court concluded there was sufficient evidence to sustain the convictions for sodomy where the defendant had licked the victim’s vaginal area. Defendant Price claimed there were inconsistencies in the victim’s testimony and the evidence was insufficient to support his conviction. The court held that any inconsistency in testimony was best evaluated by the juiy. 30 Kan. App. 2d at 585-86.
D.T. testified that the normal routine at her home with Elrod was that from 3:30 p.m. until 5:00 p.m. there would be fondling and oral sex. Elrod put his mouth on her vaginal area virtually every day that contact occurred.
K.S.A. 21-3501(2) only requires that there be oral contact with the female genitalia in order to satisfy the definition of sodomy; vaginal penetration is not required. There is sufficient evidence for a conviction of sodomy.
Effect of the Amended Information on the Conviction
The information charging Elrod with two counts of indecent liberties with a child stated:
“At the County of Wyandotte, State of Kansas, for a further, different and ninth count Herein; Information reads between October 30, 2003, and October 14, 2004, Gary R. Elrod did unlawfully, knowingly, intentionally and feloniously engage in lewd fondling or touching of the person of a child, to wit: [D.T.] (DOB: 10-30-88), who was 15 years of age, with the intent to arouse or satisfy the sexual desires of the child, the offender or another, in violation of K.S.A. 21-3504.”
After the jury returned its verdict, the State filed an amended information which included two counts of indecent liberties with a child, and which stated:
“At the County of Wyandotte, State of Kansas, for a further, different and third count- Herein; Information reads that on or about October 30th, 2003, defendants) Gary R. Elrod did unlawfully, knowingly, intentionally and feloniously soliciting [sic] a child, to-wit: D.T. (DOB: xx-xx-88), who was 15 years of age, to engage in any lewd fondling or touching of the offender, to-wit: Gary R. Elrod, with the intent to arouse or satisfy the sexual desires of the child, the offender or another, in violation of K.S.A. 21-3503.”
On appeal, Elrod argues that there is no evidence he ever solicited D.T. to touch or fondle him. The original information never mentioned solicitation; instead it charged Elrod with lewd fondling or touching. The juiy instructions never mentioned .solicitation. It is undisputed that D.T. testified that she never touched Elrod in a sexual manner.
The Bill of Rights in the Kansas Constitution requires that the accused be informed of the nature of the accusation. A defendant cannot be charged in the information with one offense and be convicted of a different offense which is not a lesser included offense of the crime charged. State v. Hall, 246 Kan. 728, 753, 793 P.2d 737 (1990). An information is sufficient if it informs the defendant of the precise offense of which he or she is accused so that the accused may prepare a defense, and -a judgment thereon will safeguard the accused from a subsequent prosecution for the same offense. Hall, 246 Kan. at 754.
The information, complaint, or indictment is the jurisdictional instrument upon which the accused stands trial. If all essential elements of a crime are not charged in an information, or the crime is not a lesser included crime of the offense charged, the trial court may not impose sentence for a crime not charged. State v. Houdyshell, 20 Kan. App. 2d 90, 96, 884 P.2d 437 (1994).
The original information used the language of the indecent liberties statute, K.S.A. 21-3503. There was testimony which supports a finding that Elrod touched D.T. with the intent to arouse sexual desires. The question, however, is what effect the amended information has on Elrod’s conviction. There is no Kansas case law on this issue, and there does not appear to be any instructive case law from other jurisdictions.
The jury did not know that an amended information would be filed. The jury based its decision on the original information and instructions, which were for lewd touching, not solicitation. Elrod knew the crimes with which he was charged. Elrod’s defense was a total denial of culpability.
We are somewhat puzzled by the State’s decision to amend the information after die conclusion of the trial. However, an information that is amended after Elrod’s trial and conviction does not control the trial or his conviction. The information which was in place at the time of the trial contained all of the elements of the crime. The jury heard sufficient evidence to support convictions for indecent liberties with a child.
Multiplicity
Elrod claims that all four of his convictions are multiplicitous because the conduct occurred on October 12, 2004. Elrod claims that the record on appeal identifies only one specific incident alleged by D.T.
Multiplicity is the charging of a single offense in several counts of a complaint or information. The primary concern with multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and section 10 of the Kansas Constitution Bill of Rights. Our standard of review on questions of multiplicity is plenary. State v. Vontress, 266 Kan. 248, 255, 970 P.2d 42 (1998).
The Kansas Supreme Court recendy addressed multiplicity in State v. Schoonover, 281 Kan. 453, 496, 133 P.3d 48 (2006). The court clarified that the inquiry must be whether multiple convictions result from the same offense. First, are the convictions from the same conduct? Second, are there two offenses or only one under the statutory definition?
Some factors which may be considered in determining if conduct is a violation of a single statute or from violations of multiple statutes include: (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. 281 Kan. at 497.
Elrod insists that he was only charged with incidents occurring on October 12, 2004. Using the Schoonover tests, Elrod’s convictions for criminal sodomy and indecent liberties with a child would be multiplicitious. However, the information which controlled the proceedings at trial clearly shows that Elrod was charged with committing acts for a period from October 30, 2003, to October 14, 2004. The jury was instructed that it must find that the sodomy or lewd touching occurred “between October 30, 2002 and October 29, 2003” or between “October 30, 2003 and October 14, 2004.” Charges are not multiplicitious when the offenses occur at different times and in different places. State v. Long, 26 Kan. App. 2d 644, 645, 993 P.2d 1237 (1999), rev. denied 268 Kan. 892 (2000).
D.T. testified that the abuse happened over 100 times in 2002, approximately 100 to 150 times in 2003, and almost every day in 2004. Elrod could have been convicted for any of those acts, presuming the jury believed D.T.’s testimony that Elrod put his hands and mouth on her vagina nearly “every day that it happened.” Given the potentially lengthy separation between events and the possibility of a fresh impulse, we have no trouble concluding that Elrod’s convictions were not multiplicitious.
It is undisputed that Elrod’s only defense was that the alleged abuse never happened. Given D.T.’s testimony regarding the repeated and ongoing nature of the abuse, there were many acts which could have served as the basis of Elrod’s convictions.
Missouri Incident
Prior to trial, the State sought to admit evidence pursuant to K.S.A. 60-455 for the events which allegedly occurred in Missouri. After hearing arguments from counsel, the trial court admitted testimony regarding the Missouri incident independent of K.S.A. 60-455. The trial court ruled that the testimony could be used to establish the relationship between Elrod and D.T. and show the existence of a continuing course of conduct.
On appeal, Elrod claims the Missouri incident was so far removed in time from the acts charged in the information that it had nothing to do with the routine abuse described by D.T. He also claims that the Missouri allegation was enormously prejudicial.
The admission of evidence lies within the sound discretion of the trial court. An appellate court’s standard of review regarding a trial court’s admission of evidence, subject to exclusionary rules, is abuse of discretion. Judicial discretion is abused when judicial action is arbitraiy, fanciful, or unreasonable. One who asserts that the court abused its discretion bears the burden of showing such abuse of discretion. State v. Holmes, 278 Kan. 603, 623, 102 P.3d 406 (2004).
The Kansas Supreme Court recently clarified the law surrounding prior crimes evidence in State v. Gunby, 282 Kan. 39, 144 P.3d 647 (2006). The court concluded that the practice of allowing admission of prior crimes evidence independent of K.S.A. 60-455 was contrary to both common law and the plain language of the statute. However, the court noted that the factors listed in K.S.A. 60-455 are exemplary rather than exclusive. Thus, a trial court may find that evidence of prior crimes is relevant and admissible to prove a material fact other than the eight fisted. However, the evidence must be “subjected to the same sort of explicit relevance inquiries, particularized weighing of probative value and prejudicial effect, and prophylactic limiting instruction we have required when any other K.S.A. 60-455 evidence is admitted.” 282 Kan. at 56-57.
In the instant case, the trial court’s focus on the relationship between Elrod and D.T. is one of tire extra-statutory factors which the Gunby court recognized; however, the trial court presented only a brief analysis regarding the independent admission of the prior crime evidence. When considering the entirety of the record on appeal, we conclude that any error in the admission of the evidence was harmless. The Gunby court noted the appropriateness of a harmless error analysis in cases such as this. 282 Kan. at 57. Errors which do not affirmatively cause prejudice to the substantial rights of the defendant do not require reversal when substantial justice has been done. State v. Ackward, 281 Kan. 2, 23, 128 P.3d 382 (2006).
The harmless error analysis is applicable here because tire trial court instructed the jury that it could consider the incident only “for the purpose of showing the relationship between the defendant and child, and the existence of a continuing course of conduct between the parties.” Generally, we believe limiting instructions such as this cure any error in tire admission of the evidence. We are also persuaded by the fact that Elrod initiated questioning about the incident in Missouri with his own defense witness.
The trial court erred by admitting the evidence independent of K.S.A. 60-455. However, any error stemming from the trial court’s failure to make a particularized inquiry into prejudice is harmless.
Jury Instructions
At trial, the jury was given an instruction which stated: “The State has the burden to prove tire defendant is guilty. The defendant is not required to prove he is not guilty. You must presume that he is not guilty until you are convinced from the evidence that he is guilty.” (Emphasis added.)
On appeal, Elrod argues the instruction was improper because the phrase “until you are convinced” misleads the jury into believing that it should expect to be convinced of the defendant’s guilt. Elrod contends that a more appropriate instruction would substitute “until” with “unless.”
Elrod did not object to the instruction as it was given. It is well established that this court reviews a trial court’s failure to give an instruction by a clearly erroneous standard where the party neither requested the instruction nor objected to its omission. State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002). Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. State v. Trotter, 280 Kan. 800, 805, 127 P.3d 972 (2006).
The instraction given was PIK Crim. 3d 52.02. Trial courts are not required to use PIK instructions, but it is strongly recommended because the instructions were developed in order to bring accuracy, clarity, and uniformity to jury instructions. Modifications or additions should only be made if the particular facts of a case require it. State v. Hebert, 277 Kan. 61, 87, 82 P.3d 470 (2004). The language of the PIK instruction in question has since been modified to show the change suggested by Elrod.
In State v. Wilkerson, 278 Kan. 147, 158, 91 P.3d 1181 (2004), the Kansas Supreme Court concluded that the word “unless" is an improved replacement for “until,” in the instruction. However, the court did not find that any error stemming from that word choice was reversible error. The court noted that the whole of the instructions accurately stated the law, leaving no room for prejudicial jury confusion.
The juiy was told that the State had the burden to prove Elrod was guilty beyond a reasonable doubt. We do not believe the use of the word “until” is clearly erroneous, given the balance of the instructions. We agree with the Supreme Court that using the word “unless” is the better practice; however, finding no clear error, we must reject Elrod’s argument.
All of the elemental jury instructions in this case provided the juiy with D.T.’s birth date. Elrod claims that this fact removed from the juiy an essential element of each offense. Elrod argues that the trial court created a mandatoiy presumption regarding D.T.’s age.
Elrod did not object to the jury instruction. As we noted, our review of the language in the instructions is evaluated on a clearly erroneous standard. See Pabst, 273 Kan. at 660.
The State is required by the Due Process Clause of the Fourteenth Amendment to prove, beyond a reasonable doubt, every element necessary to constitute the crime with which an accused is charged. Evidentiary presumptions cannot be included in the juiy instructions if they have the effect of relieving the State of its burden of proof beyond a reasonable doubt of eveiy essential element of a crime. In order to decide whether such an instruction is unconstitutional, a court must decide whether such an instrac tion creates a mandatory presumption or merely a permissive inference. A mandatoiy presumption removes the presumed element from the case once the State has proven the predicate facts giving rise to the presumption. That is, once the State proves certain facts, a jury must infer intent from such facts and the accused cannot rebut the inference. State v. DeVries, 13 Kan. App. 2d 609, 613, 780 P.2d 1118 (1989).
At trial, D.T. testified as to her birth date. D.T.’s mother testified that D.T. was 12 years old in 2001. Therefore, the birth date in the jury instructions was not a presumption supplied by the State, it was testimony provided during the trial. Elrod’s argument to the contrary is without merit.
Cumulative Error
Elrod claims that the errors he has raised in this appeal present cumulative error such that a new trial is warranted.
The test of whether cumulative trial errors are so great as to require reversal of the defendant’s conviction is the totality of circumstances. No prejudicial error maybe based on cumulative error if the evidence is overwhelming against the defendant. Ackward, 281 Kan. at 29.
We do not believe this is a case where the cumulative error rule would apply. The points raised in Elrod’s appeal either do not constitute error or are harmless.
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Green, J.:
Mary Rector contracted with her siblings that she would receive the remaining funds, if any, used to care for their mother after their mother’s death. In consideration of her siblings’ promise to turn over these funds to Rector, Rector conveyed her one-half interest in the home she jointly owned with her mother to the conservatorship established for their mother’s care. After their mother’s death, Rector sued her siblings for breach of contract for failing to turn over the remaining funds. Rector’s siblings moved to dismiss Rector’s lawsuit, maintaining that her petition failed to state a cause of action against them. The trial court agreed and dismissed the action.
To sustain the trial court’s granting of the siblings’ motion to dismiss, this court would have to conclude that, under Rector’s pleadings, Rector could not produce any evidence justifying some form of relief. We are unable to say with certainty the untenability of Rector s position. As a result, we determine that Rector s petition should not have been dismissed for failure to state a claim. Accordingly, we reverse and remand.
Maiy Rector, Clifford Tatham (Tatham), Patricia Disque, and Ruth Strickland are the adult children of Bonnie Tatham (Bonnie). On January 31,2003, Rector and her attorney attended a mediation session with Tatham, Disque, and Bonnie’s attorney, Hatem Chahine. The mediation resulted in an agreement to establish a conservatorship to provide for the care of Bonnie until the end of her life. The relevant portions of the handwritten document dictated during the mediation session stated as follows:
“3. Maiy agrees to purchase the home from her mother for $89,000. Mary will assume the existing mortgage and pay her mother $42,900. If Mary cannot raise the $42,900, the home will be placed on the market and sold. The proceeds of sale will be held for [Bonnie].
“6. The parties agree that the conservatorship and its successor arrangement will provide that in die event [Bonnie] dies and funds remain, that die remaining balance will be payable on deadi to Mary Rector.”
The document was signed by all present. Strickland was not present at the mediation and did not sign the document.
On February 18, 2003, Rector, Tatham, Disque, and Chahine appeared before the district court in Douglas County in In the Matter of the Guardianship and Conservatorship of Bonnie L. Tatham (guardianship case). The trial court appointed Tatham as guardian of Bonnie and J. Michael Davies as conservator of her estate. The trial court also referenced the mediated agreement and approved and incorporated it by reference into the court’s order.
Following the mediation on January 31, 2003, Rector stated that she performed all of the obligations and duties required by the mediated agreement. The house was sold and the sale proceeds were placed into a conservator’s account for the care of Bonnie. After Bonnie’s death on August 17, 2003, approximately $50,000 was left in the conservatorship. On November 18, 2003, the trial court in the guardianship case terminated the conservatorship and released the remaining assets to Tatham as executor of Bonnie’s estate. In its order, the court stated:
“This order should not constitute or be construed as a waiver of any claims which any of the respondents, Patricia Dique [sic], Clifford B. Tatham, and/or Mary Rector may have or claim to the assets of the conservatorship estate remaining after payment of allowed expenses and fees, including but not limited to any claim which Mary Rector may assert under the mediated agreement attached to petitioner s petition as Exhibit ‘A.’ ”
After Bonnie’s death, the issues regarding the agreement were revived in In the Matter of the Estate of Bonnie L. Tatham (estate case). In the estate case, Tatham, as executor of Bonnie’s estate, sought to distribute the estate, including the funds from the conservatorship, according to the terms of Bonnie’s will. Rector and Tatham filed competing motions for summary judgment in the estate case, but both were denied. Rector also moved to reconsider, which was also denied, because the trial court stated that there were factual disputes regarding the mediated agreement and summary judgment was not appropriate. According to Rector, the trial court in the estate case informally advised both parties that the issues surrounding the mediated agreement were more appropriately suited for a Chapter 60 proceeding.
On January 9,2006, Rector sued Tatham, Disque, and Strickland for breach of the mediated agreement in a Chapter 60 proceeding. In addition, the suit requested that the court enjoin any distribution of Bonnie’s estate until this matter was resolved. Shortly after filing the petition, Rector filed a petition to stay proceedings and distributions in the estate case. Although the record does not contain any court order resolving the petition to stay proceedings, Rector stated in one of her pleadings that the district court in the estate case distributed the remaining conservatorship funds in Bonnie’s estate under the provisions of Bonnie’s will, with each sibling receiving approximately $12,700.
In her petition, Rector outlined certain provisions of the mediated agreement and referenced the court order in the guardianship case that purported to incorporate it. Rector further argued that all parties to the matter ratified and affirmed the mediated agreement, but that, although she performed all of the obligations and duties set forth in the agreement, Tatham, as executor of Bonnie’s estate, has refused to convey the remaining conservatorship funds to Rector. This, according to Rector, was a breach of the mediated agreement. Nowhere in the petition does Rector assert an ownership interest in the property that was sold under the mediated agreement, nor does she assert any relevant motivations of the parties in making the agreement.
After Rector brought her action, Tatham, Disque, and Strickland moved to dismiss the petition for failure to state a claim. In their motion to dismiss, the defendants asserted that the mediation agreement was not a valid family settlement agreement and thus could not control the distribution of Bonnie’s estate. After a reply by Rector and a response by Tatham, Disque, and Strickland, tire trial court granted the motion to dismiss. The trial court stated that the mediation agreement was a family settlement agreement because it affected the distribution of an estate. The trial court further stated that the mediation agreement failed to meet the statutory requirements demanded of such agreements because it was not properly acknowledged and was not binding on all material parties with an interest in the estate. The trial court further noted that, even if the mediation agreement was not a family settlement agreement, contract principles could not bind Tatham, Disque, and Strickland because Kansas law allows an estate to be distributed only according to a will, to intestate succession, or to a valid family settlement agreement.
Did the District Court Err in Granting the Motion to Dismiss for Failure to State a Claim?
When a motion to dismiss under K.S.A. 60-212(b)(6) contests the legal sufficiency of a claim, the question must be decided from the well-pleaded facts of plaintiff s petition. Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001). A petition should not be dismissed for failure to state a claim unless, after reviewing the petition in the light most favorable to plaintiff and with every doubt resolved in plaintiff s favor, that, under plaintiff s pleadings, the plaintiff can prove no set of facts, either under plaintiff s theoiy or under any other possible theoiy, in support of plaintiffs claim which would entitle plaintiff to relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. 271 Kan. at 656; see Jones v. State, 279 Kan. 364, 366, 109 P.3d 1166 (2005).
In considering the question, the court must accept the plaintiff s description of events, along with any reasonable inferences that may be drawn therefrom. Nevertheless, the court is not required to accept conclusory allegations as to the legal effects of the events if the allegations are not supported or are contradicted by the description of events. Halley, 271 Kan. at 656.
The granting of such motions has not been favored by our courts, and skepticism is required where the motion is made prior to the parties completing discovery. The petition is not intended to govern the entire course of the case. Rather, the ultimate decision as to the legal issues and theories on which the case will be decided is the pretrial order. 271 Kan. at 656-57.
In her brief, Rector sets forth several theories that could afford her relief based on the facts in her petition. In response, Tatham, Disque, and Strickland argue that Rector is attempting to raise issues before this court that she never brought before the trial court and that those arguments should therefore be considered waived. Kansas currently follows a notice pleading system. Plaintiffs do not have to establish all possible legal theories in their initial petition so long as it provides enough facts to establish that the plaintiff is entitled to relief. A petition that can support a cause of action based on any theory is sufficient to survive a motion to dismiss. Noel v. Pizza Hut, Inc., 15 Kan. App. 2d 225, 231, 805 P.2d 1244, rev. denied 248 Kan. 996 (1991).
Because her petition was dismissed for failure to state a claim, Rector was not required to set forth the arguments she now asserts under the notice pleading system. Under the standard of review for motions to dismiss, this court can review any possible legal theory that could afford the plaintiff relief. Accordingly, Rector did not waive any of the arguments she has included in her brief on appeal, and if the facts in her petition or any rational inferences therefrom support any of the following possible theories, Rector’s petition should not have been dismissed for failure to state a claim.
Family Settlement Agreement
Rector does not argue that the mediation agreement between her and her siblings is a family settlement agreement. The trial court, however, stated in its order that, despite labels, the mediated agreement is in fact a family settlement agreement because it affects the distribution of an estate. And, because it was neither acknowledged nor signed by all interested parties (namely Strickland), the mediation agreement was invalid as a family settlement agreement.
K.S.A. 59-102(8) defines “valid setdement agreement” as a “written and acknowledged instrument which affects the administration or distribution of the estate and which is entered into by all interested heirs, devisees, legatees and persons whose interests are affected by the settlement agreement.” The agreement, which was attached to Rector s petition, conclusively establishes that it was not signed by Strickland. As a benéficiary under Bonnie’s will, the lack of Strickland’s signature renders the agreement invalid as a family settlement agreement, regardless of whether it was acknowledged. Thus, the trial court was correct in its assertion that the mediated agreement was an invalid family settlement agreement.
Assignment of Expectancy
Rector primarily maintains that this is an action in contract. Under Kansas law, “a will, the laws of intestate succession, or a Valid settlement agreement’ (defined in the statute as a written, acknowledged instrument) are the exclusive means for distribution of a decedent’s estate.” In re Estate of Leathers, 19 Kan. App. 2d 803, 804, 876 P.2d 619 (1994). Rector argues that her petition states a claim under a theory of assignment of an expectancy interest, and therefore does not affect the distribution of Bonnie’s estate but instead requires Tatham, Disque, and Strickland to transfer their inheritances once they were received.
In support of this theory, Rector cites an Illinois Supreme Court case, Dyblie v. Dyblie, 389 Ill. 326, 59 N.E.2d 657 (1945), upholding the assignment of an expected inheritance. In that case, one brother paid $2,000 in exchange for his brother’s interest in prop erty that he was to receive from their mother’s estate. The Dyblie court held that
“where the expectancy of an heir presumptive is assigned or conveyed to another person, the assignment, if fairly made and for a valuable consideration, will be enforced in equity. The right of inheritance is not extinguished by the assignment or conveyance but still exists and whenever the interest assigned ceases to be an expectancy and becomes a vested estate the assignment is enforceable in equity. [Citations omitted.]” 389 Ill. at 329.
Rector also cites a Wisconsin case which upheld an agreement to assign an expected inheritance. Estate of Wetting, 29 Wis. 2d 239, 244, 138 N.W.2d 206 (1965).
Likewise, several Kansas cases have allowed for an expectancy or a contingent right in property to be transferred, bartered, or sold. See Chatterton v. Clayton, 150 Kan. 525, 526-27, 95 P.2d 340 (1939) (holding that the payee of a note cannot collect on an inheritance transferred to a third party because such an assignment is valid); Knutson v. Hederstedt, 125 Kan. 312, 316-18, 264 Pac. 41 (1928) (holding that an assignment is valid as to a contingent interest in the testator’s heirs); Clendening v. Wyatt, 54 Kan. 523, 525, 38 Pac. 792 (1895) (holding that the assignment of a son’s expected inheritance from his mother’s estate is valid).
Rector alleges in her petition that all of the siblings ratified and affirmed the agreement and that all were without a good faith basis to refuse to convey the remaining conservatorship funds. Although Strickland never signed the agreement, Rector’s petition alleges that she nonetheless affirmed the mediated agreement: an allegation that must be accepted as true under our standard of review.
Although there is nothing in the agreement that purports to explicitly assign the inheritances of Tatham, Disque, or Strickland after the estate was distributed through the will, this does not render Rector’s claim meritless. Kansas law explicitly allows the assignment of an expected inheritance (to be transferred after distribution), and the petition alleged sufficient facts to suggest that this is what all parties intended to do. Accordingly, Rector’s petition should not have been dismissed for failure to state a claim.
Promissory Estoppel
Even if Rector’s claim under an assignment of expectancy theory was not a sufficient basis to allow her case to proceed, she should have been able to proceed on a theory of promissory estoppel. Where a breach of contract theory does not permit a plaintiff recovery, Kansas has traditionally allowed a remedy on the theory of promissory estoppel. Bittel v. Farm Credit Svcs. of Central Kansas, P.C.A., 265 Kan. 651, 660, 962 P.2d 491 (1998). To invoke promissory estoppel, the plaintiff must establish evidence showing that the promisor reasonably intended or expected the promisee to rely on a promise, that the promisee acted reasonably in reliance on that promise, and that refusal to enforce the promise or application of the statute of frauds would result in fraud or injustice. 265 Kan. at 661.
Here, Rector stated in her petition that she performed her obligations under the mediated agreement. We can infer therefore that she sold or otherwise surrendered an interest in the home in reliance on the promise made by Tatham, Disque, and Strickland that she would get any remaining conservatorship funds. Although Strickland never signed the mediated agreement, Rector maintains in her petition that all parties ratified and affirmed the agreement. Thus, although facts may develop contradicting Rector’s allegation that Tatham, Disque, and Strickland induced her reliance through the promise to pay over remaining conservatorship funds, Rector should have been allowed to proceed on a promissory estoppel or detrimental reliance theory.
Joint Tenancy
Rector also argues that because the proceeds from the sale of the house were not part of Bonnie’s estate, they could therefore be distributed through the mediated agreement because the agreement would then not affect the distribution of the estate. As noted above, an estate can only be distributed according to a will, to intestate succession, or to a valid family settlement agreement. According to Rector, she and Ronnie owned the house as joint tenants. Thus, any funds remaining from the sale of the house passed to Rector as surviving joint tenant.
Rector states nothing explicitly in her petition that indicates that she and Bonnie owned the home as joint tenants. The provision of the agreement relating to the sale of the home allowed Rector to buy the house outright with cash, pay half cash and assume the remaining mortgage, or if Rector could do neither, that the home be sold on the market with all funds going to Bonnie. Arguably, this leads to the inference that Rector had no ownership interest in the house, but was merely allowed an option to buy. Nevertheless, because the agreement also provided that Rector was to receive any funds from the sale of the house remaining in the conservatorship after Bonnie’s death, the court could possibly infer that Rector did have an interest in the house that the siblings were trying to compensate for after Bonnie’s needs had been met.
In her brief, Rector states that the purpose of the agreement was for her to sell her interest in the home to free up funds to care for Bonnie. Similarly, in her reply to the motion to dismiss, Rector states that she conveyed, “by quit-claim deed, her interest in her homestead to Bonnie L. Tatham.” Although none of this information was in the petition, it supports the inference that Rector owned an interest in the house. It also contradicts her claim to the remaining funds as surviving joint tenant because, if she sold her interest, she relinquished any right of ownership she had in the property and can no longer claim the funds under a right of survivorship theory.
Court Order
Rector finally argues that the mediated agreement was incorporated by the court in the guardianship case and should be enforced as a court order. The right to an appeal is purely statutory; if the record shows that an appellate court does not have jurisdiction, the appeal must be dismissed. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006). An appellate court has a duty to question jurisdiction on its own initiative. If the record shows there is no jurisdiction for the appeal, the appeal must be dismissed. State v. Harp, 283 Kan. 740, 746, 156 P.3d 1268 (2007). Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner prescribed by the applicable statutes. State v. Legero, 278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004).
Rector acknowledges in her brief that the court in the guardianship and estate cases did not choose to enforce the agreement that was allegedly incorporated into the order on February 18, 2003. Nevertheless, following Bonnie’s death in August 2003, the trial court in the guardianship case terminated the conservatorship and released all remaining funds to Tatham as executor of Bonnie’s estate. Although the trial court stated that the order should not be construed as a waiver of any claims Rector had under the mediated agreement, it did not distribute the remaining conservatorship funds to Rector. Similarly, in the estate case, the trial court declined to stay distribution and ordered the funds distributed under the will. Thus, if this was, in Rector’s view, a violation of the court order that incorporated the agreement, Rector should have appealed either of those orders. There is no evidence that Rector has appealed any issues in either the guardianship case or the estate case. Instead, she brought her action against her siblings, which is not an appropriate method of appealing the lack of enforcement of the order in die guardianship case. Because her notice of appeal appeals only the orders relating to the motion to dismiss, this court does not have jurisdiction to review the actions of the trial courts in either the guardianship or estate cases. Thus, the incorporation of the agreement into an order in another case does not provide a valid theory to survive the motion to dismiss in this case.
Accordingly, aldiough Rector’s petition fails to state a valid claim under a family settlement agreement theory or the theory that the mediated agreement was incorporated into a court order, she may be entitled to relief under her theory that Tatham, Disque, and Strickland assigned their expected inheritance or a theory of promissory estoppel. As a result, the trial court should not have dismissed Rector’s petition for failure to state a claim.
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Greene, J.:
Louise Lyren “Babe” Lyons, by and through Jim Lawing, Trustee of the Babe Lyons Trust, appeals the district court’s judgment as a matter of law in favor of defendant J. Roy Holder, former trustee of the trust, on her claims of breach of fiduciary duty and conversion. Lyons argues on appeal that Holder improperly paid himself over $56,000 as a fee for nearly 12 years of service as trustee before resigning and that the district court erred in dismissing her claims after the close of her evidence at trial. We conclude that the district court erred in granting judgment against her as a matter of law, so we reverse and remand for further proceedings.
Factual and Procedural Background
Sometime in early 1992, the Babe Lyons Trust was created naming Holder as primary trustee and designating Lyons as primary beneficiary. The trust instrument provided the trustee with broad powers to manage the trust property and provided that he was entitled to reasonable compensation for his services.
“My trustee is to serve with reasonable compensation. Additionally, all expenses of any type incurred by my trustee in carrying out the duties under this trust shall be paid for from die trust.”
Although the record is not entirely clear on the value of property subject to the trust, counsel advised this court during oral argument the property was valued at approximately $300,000 at inception and approximately $600,000 at time of trial.
It was undisputed that during most of the life of the trust, Holder regularly visited Lyons, helped with her care, managed trust assets, made required accountings, and otherwise performed services as trustee without complaint. Throughout the first 11 years of the trust, Holder never discussed, requested, or paid himself fees permissible under the express provision of the trust.
The parties began to be at odds in 2003, after Lyons became concerned about a transfer of funds from one trust account to another without her knowledge, and after Holder became concerned about a relationship Lyons had engendered with Vicky Greer, apparently believing that Greer might “take advantage” of the elderly Lyons. The relationship between trustee and beneficiary deteriorated rapidly, until Holder cashed out a trust certificate of deposit, placed $67,000 in a trust account, paid himself $56,850 for trustee fees for his 12 years of service, and $5,000 for attorney fees. Lyons was never consulted about these transactions, and they were followed by Holder s resignation as trustee in February 2004.
In November 2004, Lyons filed suit against Holder claiming Holder breached fiduciary duties he owed to her by failing to discuss or notify her of his compensation prior to transferring funds in order to pay himself in excess of $50,000 and that the transfer of funds in payment of these fees constituted conversion. Lyons requested the trust assets be restored and sought other damages for the purported conversion and breach of duty. Holder filed an answer, denying Lyons’ claims. Holder asserted he had managed the trust for just under 12 years and the payment to himself equated to $4,166.66 per year for managing a trust valued in excess of $600,000.
A pretrial conference was held approximately 1 year after the lawsuit was filed. In the pretrial order, Lyons claimed Holder breached his fiduciary duties (1) by transferring money out of her checking account, resulting in the account becoming overdrawn; (2) by misappropriating over $55,000 in trust assets by paying himself compensation; and (3) by never discussing with her what an appropriate compensation would have been for his services. Lyons also claimed Holder waived any claim for compensation except for calendar year 2003 and such claims were barred by the statute of limitations. The issues of law were identified as (1) whether Holder’s actions in taking no compensation constituted a waiver of any right to compensation; (2) whether the statute of limitations limited Holder’s right to compensation for serving as trustee; and (3) what sum, if any, should Lyons recover.
The district court conducted a bench trial and, at the conclusion of Lyons’ evidence, granted Holder’s motion for judgment as a matter of law. The court held that there was no evidence that the amount Holder paid himself as a trustee fee was unreasonable and found that “a waiver is not to be inferred from [trustee’s] declining or failure to take a fee for the previous period.” The court held other issues were not properly before the court. A journal entry of judgment was filed thereafter, stating that “as a matter of law . . . plaintiff has wholly failed to present evidence, facts or law upon which judgment could be granted in favor of plaintiff.”
When the journal entry was filed, Holder filed a motion for attorney fees claiming the suit was “spurious” and that he was entitled to attorney fees under both the terms of the trust and the Kansas Uniform Trust Code. This motion was denied.
Lyons also filed a timely posttrial motion for judgment notwithstanding the prior ruling. Lyons repeated her claims that the Kansas Uniform Trust Code implicitly prohibited unilateral actions by trustees to pay themselves compensation and provided for a process if the parties do not agree what are reasonable trustee fees. Following a hearing, this motion was also denied. The court again found there was no evidence indicating Holder’s fee was unreasonable and, based on the judge’s own experience, Holder’s fee was on “the high end of reasonable” but not unreasonable.
Lyons timely appeals.
Did the District Court Err in Granting Judgment Against Lyons After the Close of Her Evidence at Trial?
When the district court conducts a bench trial, K.S.A. 60-252(c) governs the court’s authority to render judgment prior to the conclusion of trial and provides in material part:
“(c) Judgment on partial findings. If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.”
In ruling on a motion for involuntary dismissal (now judgment on partial findings) during a bench trial, 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. In re Estate of Ewers, 206 Kan. 623, 626, 481 P.2d 970 (1971). When the district court has made such findings and conclusions, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and are sufficient to support the conclusions of law. U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003). Appellate review of the conclusions of law is unlimited. Nicholas v. Nicholas, 277 Kan. 171, 177, 83 P.3d 214 (2004). After a bench trial, an appellate court has the power to correct errors of law, including those that may infect a so-called mixed question of law and fact, particularly where the trial court’s findings are based on a misunderstanding of the governing rule of law. Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 501, 80 L. Ed. 2d 502, 104 S. Ct. 1949 (1984); see also Federal Deposit Ins. Corp. v. Oaklawn Apartments, 959 F.2d 170, 173 (10th Cir. 1992) (determination of waiver is a mixed question of fact and law; appellate court reviews application of facts to the law under a de novo standard). A negative finding that a party has not carried his or her burden of proof will not be disturbed on appeal absent arbitrary disregard of undisputed evidence or extrinsic considerations such a bias, passion, or prejudice. In re Guardianship & Conservatorship of Heck, 22 Kan. App. 2d 135, 147, 913 P.2d 213 (1996).
Accordingly, we apply these standards to each of Lyons’ claims for relief to determine whether judgment as a matter of law was proper.
Purported Violations of the Kansas Uniform Trust Code
From the outset of the litigation, Lyons claimed Holder’s actions breached his fiduciary duty as a trustee. On appeal, Lyons claims Holder’s payment of his own fees was a breach of loyalty voidable under K.S.A. 2006 Supp. 58a-802, which provides:
“(a) A trustee shall administer the trust consistent with the terms of the trust and solely in the interests of the beneficiaries.
“(b) . . . [A] sale, encumbrance, or other transaction involving the investment or management of trust property entered into by the trustee for the trustee’s own personal account or which is otherwise affected by a conflict of interest between the trustee’s fiduciary and personal interests is voidable by a beneficiary affected by the transaction unless:
(1) The transaction was authorized by the terms of the trust;
(2) the transaction was approved by the court;
(4) the beneficiary consented to the trustee’s conduct, ratified the transaction or released the trustee . . . .”
That same statute specifically states that it does not preclude “payment of reasonable compensation to the trustee” if such transaction was “fair to the beneficiaries.” K.S.A. 2006 Supp. 58a-802(h).
This provision fails as a basis for Lyons’ claims. Although the payment of trustee fees was arguably a “transaction involving the investment or management of trust property entered into by the trustee for the trustee’s own personal account,” the transaction was generally “authorized by the terms of the trust” and not precluded by the statute if “fair” to beneficiaries. Although “fair” is not defined by the trust provision, we note that Lyons concedes on appeal that the amount of the fees was not unreasonable; her claim was that it was unfair for the trustee to take no compensation for 12 years and then take fees for that period at the conclusion of his service. Because the trust provision as to trustee compensation fails to provide for any specific procedure or period for compensation, and there is no contention as to unreasonableness of the fees taken, the transaction was sufficiently “authorized” and “fair” so as to escape voidability under K.S.A. 2006 Supp. 58a-802(b). Having rejected Lyons’ claim sounding in breach of fiduciary duty, we view Lyons’ claim exclusively as one sounding in waiver of the contractual right to compensation but without basis in the Kansas Uniform Trust Code.
Compensation Barred by Statute of Limitations
Lyons next claims that Holder’s payment of his own fees after 12 years was barred by K.S.A. 60-511(4), which provides that “[a]n action upon the official bond or undertaking of an executor, administrator, conservator, sheriff, or any other officer . . must be brought within 5 years.
Lyons’ reliance on subsection (4) of this statute is misguided; Holder’s right to compensation is not based on an official bond or undertaking.
“A bond is an obligation in writing and, as distinguished from an undertaking, a bond binds the signatories to pay a sum certain upon the happening of an event; an undertaking is an obligation in writing binding the signatories to pay such an amount as is adjudged due.” 12 Am. Jur. 2d, Bonds § 1.
The statute of limitations relied upon by Lyons pertains to suits seeking to recover from bonds guaranteeing the performance of fiduciaries, officers, and others, such as contractors. See Bob Eldridge Constr. Co. v. Pioneer Materials, Inc., 235 Kan. 599, 606, 684 P.2d 355 (1984) (material supplier’s suit on surety bond issued to guarantee contractor’s payments governed by this statute); Zurbucken v. Glens Falls Indemnity Co., 158 Kan. 599, 601, 149 P.2d 617 (1944) (action on bond of deputy sheriff was conditioned on faithful performance of duty to honestly account for all money that might come into his hands in his official capacity governed by this statute).
By its plain terms, K.S.A. 60-511(4) does not apply to Holder’s claim to compensation from the trust. For these reasons, Lyons’ argument based upon the statute of limitations fails.
Compensation Barred by Waiver
A trustee entitled to compensation under the terms of a trust may waive such compensation. See Restatement (Second) of Trusts § 242, comment j (1957) (waiver may be found based upon some manifestation of intent to waive or a change in position by the beneficiary in reliance on the trustee’s failure to withhold compensation); Restatement (Third) of Trusts § 38, comment g (2001) (waiver may be inferred from conduct in some circumstances).
Many courts have recognized that a trustee can waive compensation under a variety of circumstances. Explicit indications to the beneficiary that the trustee would not or is not charging for services is sufficient to establish a waiver of compensation. See McCormick v. McCormick, 180 Ill. App. 3d 184, 209, 536 N.E.2d 419 (1988) (citing letter from trustee to beneficiary). A failure to include trustee compensation in required annual accountings with the court has been held to constitute a waiver to fees for the time periods covered by the accounting if there were sufficient funds to pay for such services during those years. See Hardy v. Hardy, 222 Ark. 932, 263 S.W.2d 690 (1954) (trustee not only failed to pay herself, but advised beneficiary she did not intend to take compensation and beneficiary testified he relied upon that representation).
Under Kansas law, “ ‘[w]aiver is ordinarily the intentional relinquishment of a known right and is a voluntary act.’ [Citation omitted.]” Sultani v. Bungard, 35 Kan. App. 2d 495, 498, 131 P.3d 1264 (2006). Although waiver must be knowing and intentional, intent may be inferred from conduct, and the knowledge may be actual or constructive, but “ ‘both knowledge and intent are essential elements.’ [Citation omitted.]” 35 Kan. App. 2d at 498.
Here, the district court found as a matter of law that “waiver is not to be inferred from [Holder’s] declining or failure to take a fee for the previous period.” We fundamentally disagree with this holding. Kansas law has consistently recognized that intention to relinquish a known right may be inferred from conduct. Harvester, Inc. v. Goodyear Tire & Rubber Co., 4 Kan. App. 2d 363, 365, 606 P.2d 498 (1980). Knowledge of a contractual right may be waived by mere failure of assertion for 15 years. Stratmann v. Stratmann, 6 Kan. App. 2d 403, 411, 628 P.2d 1080 (1981); see also Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 90, 367 P.2d 44 (1961) (right to credit against judgment waived by inaction); City of Wamego v. L.R. Foy Constr. Co., 9 Kan. App. 2d 168, 675 P.2d 912, rev. denied 234 Kan. 1076 (1984) (right to arbitration waived by acts and failure to act); 28 Am. Jur. 2d, Estoppel and Waiver §209 (implied waiver inferred by implication through a party’s conduct inconsistent with an intent to assert a right).
The evidence included two incidents wherein Holder told third parties he had not taken compensation, but we agree with the apparent conclusion of the district court that these were insufficient to show an affirmative intent to waive compensation because they were arguably consistent with an intent to claim compensation at a later time for prior periods. Lyons argued to the district court and now argues on appeal, however, that the trustee’s failure to assert his contractual right of compensation for nearly 12 years should be considered waiver by inference. Although we decline to ascertain the weight of such evidence, we conclude that Holder’s standing mute on his right to compensation for 12 years under these circumstances was some evidence of waiver. Moreover, although the record on appeal is not entirely clear on this, Holder’s failure to address fees upon each accounting submitted to the beneficiary may also be considered a reasonable inference that waiver was intended. We conclude the district court either ignored undisputed evidence of waiver by inference or based its judgment on a misunderstanding of the law. For this reason, judgment against Lyons at the close of her evidence was improper.
Accordingly, we reverse the judgment of the district court and remand for further proceedings not inconsistent with this opinion. Specifically, the district court is directed to conduct a new trial limited to the issues of whether Holder waived his fees for any period of time prior to any final accounting and, as to any periods where the court finds no waiver, the reasonableness of requested fees for such periods.
Burden of Proof on Remand
Noting that the parties were unclear on the applicable burden of proof, we address this issue in order to assist the district court on remand. The heart of Lyons’ challenge to Holder’s compensation is her assertion that his claim for compensation was barred in whole or in part by the doctrine of waiver. A claim of waiver is considered an affirmative defense under Kansas law. See K.S.A. 60-208(c). The party raising an affirmative defense such as waiver bears the burden of proving the defense. Munck v. KPERS, 35 Kan. App. 2d 311, 321-22, 130 P.3d 117 (2006) (agency bore burden of proving its assertion that claimant waived timely hearing); Bayless v. Dieckhaus, 33 Kan. App. 2d 620, 623, 106 P.3d 83, rev. denied 280 Kan. 981 (2005) (the party asserting the defense has the burden of pleading and proving the applicability of the statute of limitations).
Here, Lyons asserted waiver in response to Holder s claims that he was entitled to compensation by virtue of the trust. Even though Lyons seeks affirmative relief by reason of waiver, the doctrine has been asserted in a defensive manner and must be proven in the same manner as if asserted as a defense to affirmative relief. See Munck, 35 Kan. App. at 322; Tabor v. Lederer, 205 Kan. 746, 748, 472 P.2d 209 (1970). Accordingly, Lyons should have the burden of proof on the issue of waiver on remand.
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McAnany, J.:
Michael Edward Latumer challenges his convictions for possession of methamphetamine and drag paraphernalia. He claims the trial court’s reliance upon K.S.A. 2006 Supp. 22-3437 to admit the incriminating results of lab tests performed on substances found in his possession denied him the right under the Sixth Amendment to the United States Constitution to confront his accuser. Because of the testimonial nature of the lab report and the trial court’s discretion under K.S.A. 2006 Supp. 22-3437(3) to admit it into evidence over the defendant’s objection and without the testimony of the technician who prepared it, that portion of the statute violates the Sixth Amendment’s Confrontation Clause when applied to the defendant in a criminal case. Therefore, we reverse Latumer’s convictions and remand the case for a new trial.
Background Facts
Latumer was arrested and charged with possession of methamphetamine, possession of drug paraphernalia, and criminal threat. The State filed a pretrial notice of its intent to introduce into evidence a Kansas Bureau of Investigation (KBI) report. The report contained an analysis of the contents of four zip lock baggies hidden by Latumer but recovered by the authorities. The lab report concluded that three of the four baggies contained methamphetamine.
Latumer objected to the lab report’s admission without the testimony of the forensic scientist who wrote it because the report was not clear as to which baggies tested positive for methamphetamine. He also objected because the certificate of analysis did not explain what test equipment was used. The court overruled Laturner’s objection, and the report was received into evidence at trial without further objection from Latumer. The jury convicted Latumer of possession of methamphetamine and possession of drug paraphernalia, but acquitted him of criminal threat.
Latumer appeals. He argues that his right of confrontation was violated because he was not able to cross-examine the technician who prepared the lab report. He claims K.S.A. 2006 Supp. 22-3437 is unconstitutional based on the Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004).
Preservation of the Confrontation Issue
The State does not address the merits of the constitutional issue. It contends that Latumer’s motion in limine did not challenge the report on confrontation grounds. Further, the State argues, when Latumer’s motion was unsuccessful, he failed to preserve the issue at trial and invited the error he now complains of by not objecting to the admission of the report at trial.
Subject to three exceptions, a timely and specific objection for the admission of evidence is necessary to preserve an issue for appeal. State v. Torres, 280 Kan. 309, 319, 121 P.3d 429 (2005). The exceptions arise when (1) the newly asserted issue involves only a question of law founded on proven or admitted facts, and answering the legal question will resolve the case; (2) consideration of the issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) by considering the previously unasserted issue the judgment of the trial court may be upheld on appeal as being right but for the wrong reason. See State v. Adams, 280 Kan. 494, 511, 124 P.3d 19 (2005), overruled on other grounds State v. Davis, 283 Kan. 569, 158 P.3d 317 (2007).
Latumer asserts that we should consider the issue to prevent the denial of his fundamental rights. The right to confrontation is a fundamental right guaranteed by the Sixth Amendment. Further, Latumer did not invite the court to err in admitting this evidence since he objected to the State’s pretrial proffer and did not elicit the testimony he now challenges. Finally, while he did not specifically refer to his Sixth Amendment rights at the pretrial hearing, tire nature of his complaint was that he was denied the opportunity to confront and to cross-examine at trial the forensic scientist who prepared the report to determine which bags contained methamphetamine and what testing equipment was used to detect its presence.
Applicable Standards for Constitutional Review
Our Supreme Court considered the constitutionality of K.S.A. 22-3437 in State v. Crow, 266 Kan. 690, 974 P.2d 100 (1999). Since the constitutional analysis in Crow no longer applies, as we will discuss later, we must revisit this issue. In doing so we presume the statute is constitutional and resolve all doubts in favor of its validity. In determining its constitutionality, it is our duty to uphold a statute rather than defeat it if there is any reasonable way to do so. See State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006).
The Statute
The challenged statute, K.S.A. 2006 Supp. 22-3437, permits the admission of a forensic lab report without the testimony of the technician who prepared it. Since our analysis requires the interpretation of this statute and since the statute implicates the fundamental constitutional right of confrontation when applied in a criminal case, our review is de novo. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
The statute sets forth the procedure to be followed before admission of a forensic lab report without the testimony of the technician. First, at the request of a law enforcement agency, the technician will prepare a certificate, sworn to under oath, which contains the results of the analysis. K.S.A. 2006 Supp. 22-3437(2). This section of the statute also requires the technician to submit a sworn declaration which details:
“the type of analysis performed; tire result achieved; any conclusions reached based upon that result; that the subscriber is the person who performed the analysis and made the conclusions; the subscriber’s training or experience to perform tire analysis; the nature and condition of the equipment used; and the certification and foundation requirements for admissibility of breath test results, when appropriate.” K.S.A. 2006 Supp. 22-3437(2).
Second, at least 20 days in advance of the trial or hearing where the certificate of the lab test results will be offered, the offering party must give notice to the court and the opposing party and provide them with copies of the certificate and the reports relating to the analysis in question. The opposing party then must assert any objection and the grounds for the objection within 10 days. K.S.A. 2006 Supp. 22-3437(3).
Third, in the event of an objection, the district court must determine the admissibility of the certificate of the lab results at least 2 days before the trial or hearing.
“A proffered certificate shall be admitted in evidence unless it appears from the notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate. The time limitations set forth in this section maybe extended upon a showing of good cause.” K.S.A. 2006 Supp. 22-3437(3).
Prior Consideration of the Constitutionality of the Statute
The Confrontation Clause of the Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”
Our Supreme Court considered the constitutionality of K.S.A. 22-3437 with respect to a criminal defendant’s right of confrontation in Crow. The court concluded that the statute does not violate a defendant’s right of confrontation. In doing so, the court balanced the public interest in judicial economy against the defendant’s right of confrontation.
“By enacting K.S.A. 1996 Supp. 22-3437, the Kansas Legislature determined the public has a significant interest in avoiding the unnecessary expense of insuring the presence of laboratory technicians at trials where the content of their testimony will not be challenged by defendants. The availability of criminalists or laboratory personnel has been a limiting factor in setting trials, and the prompt administration of justice justifies admission of evidence without their presence in many instances. A constitutional mechanism has been provided whereby defendants can challenge the admissibility of such evidence and demonstrate the necessity for the presence of such witnesses. We leave the imposition of confrontation to counsel and not the trial court, but we are confident that trial courts can control spurious objections by defendants or attempts by the prosecution to utilize K.S.A. 1996 Supp. 22-3437 where it would clearly be inappropriate. Properly utilized, filis provision can speed up trial time, clarify issues, and promote judicial economy while still fully protecting the rights of the accused.” Crow, 266 Kan. at 706.
The court in Crow noted that the statute gives a defendant the opportunity to challenge the report before the trial or hearing, in which case the district court serves as a gatekeeper in evaluating the defendant’s objections to the report. 266 Kan. at 705-06. Relying on several United States Supreme Court cases, including Ohio v. Roberts, 448 U.S. 56, 65 L. Ed. 2d 597, 100 S. Ct. 2531 (1980), the court determined that a hearsay statement admitted under a “ ‘firmly rooted’ [hearsay] exception” with “ ‘particularized guarantees of trustworthiness’ ” does not violate the Confrontation Clause. Crow, 266 Kan. at 699. In doing so, the court in Crow did not consider the testimonial nature of the report being admitted under K.S.A. 22-3437.
Crawford and Its Progeny
Later in Crawford the United States Supreme Court announced that reliability is no longer the constitutional touchstone of a Confrontation Clause analysis. Crawford, 541 U.S. at 62, 67-69. Instead of reliability, the Crawford Court held that the analysis turns on whether the hearsay statement is testimonial. If the statement is testimonial, the statement is inadmissible unless the State proves that (1) the declarant is unavailable and (2) the defendant had a prior opportunity to cross-examine the declarant. A statement which is not testimonial does not implicate the Confrontation Clause and may be admitted if it satisfies a recognized hearsay exception. Crawford, 541 U.S. at 69; see Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006); Davis, 283 Kan. 569, Syl. ¶ 2.
Both Davis v. Washington and Crawford prohibit the district court from acting as a gatekeeper in determining whether a testimonial statement bears sufficient indicia of reliability. The Court has stated that such a determination injects “too much discretion injudicial hands.” Crawford, 541 U.S. at 67. Thus, it is inconsistent with a criminal defendant’s right of confrontation to admit testimonial evidence based upon its reliability and trustworthiness when the defendant has no opportunity to confront the absent declarant.
In State v. Davis, 283 Kan. at 575, our Supreme Court applied the confrontation analysis in Davis v. Washington and Crawford and announced: “To the extent that the analysis in previous decisions of this court differs from the Confrontation Clause analysis set forth in this opinion, these previous decisions are overruled.” Crow is, therefore, no longer good law.
The United States Supreme Court has provided three criteria for determining that a statement is testimonial in nature: (1) the primary purpose of the statement is to establish or prove a fact that is potentially relevant in a criminal prosecution; (2) the statement is similar to a statement a witness would make on the witness stand at trial or its functional equivalent, such as statements made in affidavits, prior testimony, or custodial interrogations; or (3) the statement was made to police during an investigation and not during an ongoing emergency. See Davis v. Washington, 547 U.S. at 829-32; Crawford, 541 U.S. at 68.
There is a significant split between various courts in the various states on the testimonial nature of these lab reports under vaiying fact patterns. Lab reports are categorized as testimonial statements requiring Confrontation Clause protection in the following cases: Smith v. State, 898 So. 2d 907, 916-18 (Ala. Crim. App. 2004), cert. denied (Ala.) October 15, 2004 (autopsy report); Thomas v. United States, 914 A.2d 1, 12-18 (D.C. 2006) (chemist’s report); Martin v. State, 936 So. 2d 1190, 1192-93 (Fla. Dist. App. 2006) (drug analysis report); People v. Lonsby, 268 Mich. App. 375, 387-93, 707 N.W.2d 610 (2005), appeal denied 477 Mich. 854, 720 N.W.2d 742 (2006) (lab report); State v. Caulfield, 722 N.W.2d 304, 308-10 (Minn. 2006) (lab report of drug test); State v. March, 216 S.W.3d 663, 665-67 (Mo. 2007) (lab report); City of Las Vegas v. Walsh, 121 Nev. 899, 124 P.3d 203, 207-08 (2005) (nurse affidavit), cert. denied Gehner v. City of Las Vegas, 547 U.S. 1071 (2006); State v. Kent, 391 N.J. Super. 352, 364-75, 918 A.2d 626 (2007) (report prepared for trial to prove element of crime); People v. Rogers, 8 App. Div. 3d 888, 891-92, 780 N.Y.S.2d 393 (2004) (blood test); State v. Crager, 164 Ohio App. 3d 816, 822-24, 844 N.E.2d 390 (2005), appeal allowed 109 Ohio St. 3d 1423, 846 N.E.2d 532 (2006) (appeal pending) (lab reports).
Others consider a variety of reports to be nontestimonial under vaiying circumstances, though many of these cases deal with evidence other than the type of lab report which is at issue here: Pruitt v. State, 954 So. 2d 611, 616-17 (Ala. Crim. App.), cert. denied (Ala.) October 13, 2006 (certificate of analysis offered in compliance with statute); Bohsancurt v. Eisenberg, 212 Ariz. 182, 185-88, 129 P.3d 471 (Ariz. App.), rev. denied (Ariz.) September 26, 2006 (calibration records of breath-testing machine); People v. Johnson, 121 Cal. App. 4th 1409, 1411-13, 18 Cal. Rptr. 3d 230, rev. denied (Cal.) November 10,2004 (lab report); People v. Hinojos-Mendoza, 140 P.3d 30, 35-37 (Colo. App. 2005), cert. granted (Colo.), argued May 2, 2007 (appeal pending) (lab report); State v. Musser, 721 N.W.2d 734, 753-54 (Iowa), reh. denied August 29, 2006 (lab report conducted 2 years before prosecution and at defendant’s request); State v. Cunningham, 903 So. 2d 1110, 1114-21 (La. 2005) (lab report); Commonwealth v. Verde, 444 Mass. 279, 282-85, 827 N.E.2d 701 (2005) (chemical analysis); People v. Jambor, 273 Mich. App. 477, 486-88, 729 N.W.2d 569 (2007) (fingerprint cards with no analysis that prints matched defendant); People v. Meekins, 34 App. Div. 3d 843, 845, 828 N.Y.S.2d 83 (2006) (independent DNA lab report); State v. Campbell, 719 N.W.2d 374, 376-78 (N.D. 2006), cert. denied, 166 L. Ed. 2d 993 (2007) (lab report when defendant fails to subpoena technician); Moreno Denoso v. State, 156 S.W.3d 166, 181-83 (Tex. App.), rev. denied (Tex.) September 14, 2005 (autopsy report); Luginbyhl v. Com., 46 Va. App. 460, 472-75, 618 S.E.2d 347 (2005), aff'd en banc 48 Va. App. 58, 628 S.E.2d 74 (2006) (mechanical breath test analysis); see also United States v. Magyari, 63 M.J. 123, 126-28 (2006) (data entry of routine test).
The positions taken by two of our adjoining sister states demonstrates the disparity of views on this issue. In March, decided by the Missouri Supreme Court, the court observed:
“The laboratory report was prepared at the request of law enforcement for March’s prosecution. It was offered to prove an element of the crime — i.e., that the substance March possessed was cocaine base. The report was a sworn and formal statement offered in lieu of testimony by the declarant. Use of sworn ex parte affidavits to secure criminal convictions was the principal evil at which the Confrontation Clause was directed. Crawford, 541 U.S. at 50, 124 S. Ct. 1354. A laboratory report, like this one, that was prepared solely for prosecution to prove an element of the crime charged is ‘testimonial’ because it bears all the characteristics of an ex parte affidavit.” March, 216 S.W.2d at 666.
On the other hand, in Hinojos-Mendoza the Colorado Court of Appeals affirmed the defendant’s conviction based on the district court’s admission of a lab report under a statute similar to ours. The district court admitted the evidence over the defendant’s objection because the defendant did not file the required 10-day notice of objection. The Colorado Court of Appeals concluded that because the statements in the lab reports contained objective statements of fact and were not testimonial, they could be admitted under the business records exception to the hearsay rule. 140 P.3d at 36-37 (citing Crawford, 541 U.S. at 51, 55-57).
Hinojos-Mendoza uses the same rationale expressed in Rollins v. State, 161 Md. App. 34, 866 A.2d 926 (2005), a case relied upon in State v. Lackey, 280 Kan. 190, 212-13, 120 P.3d 332 (2005), cert. denied 164 L. Ed. 2d 399 (2006). The analysis in Lackey has since been disavowed by our Supreme Court in Davis, 283 Kan. at 575. In Rollins, the Maryland court differentiated between an autopsy report’s nontestimonial objective facts and its testimonial opinions and conclusions regarding the cause of death. The Maryland court said:
“[T]he findings in an autopsy report of the physical condition of a decedent, which are routine, descriptive and not analytical, which are objectively ascertained and generally reliable and enjoy a generic indicum of reliability, may be received into evidence without the testimony of the [medical] examiner. Where, however, contested conclusions or opinions in an autopsy report are central to the determination of corpus delicti or criminal agency and are offered into evidence, they serve the same function as testimony and trigger the Sixth Amendment right of confrontation.” Rollins, 161 Md. App. at 82.
The reasoning in Rollins and Hinojos-Mendoza seems somewhat circular: (1) since Crawford the initial inquiry is whether the evidence is testimonial, not whether it is rehable; (2) routine factual findings in an autopsy report are generally reliable; (3) therefore, evidence of routine factual findings is not testimonial. The analysis in Rollins and Hinojos-Mendoza seems to fly in the face of a plain reading of Davis v. Washington and Crawford.
The certificate challenged by Latumer refers to an examination on May 19, 2004, of “4 ziploc bags containing an off-white powder.” The results of the examination were stated as follows: “Methamphetamine was detected in three of the four zip locks in Lab Item 1 {2.10 total grams net of three}. Fourth zip lock contained no controlled substances.”
Latumer was charged in this case in April 2004. The lab tests were performed and the lab report was prepared the following month at the request of the State for the purpose of proving the central element of the drug charges against Latumer. The technician who prepared the report was available to testify at trial but was not called to do so. The report does not contain any of the raw data regarding sample weight or the spectrographic distribution of the elemental components of the samples tested. It contains only the conclusions from the tests. Laturner had no opportunity to confront and cross-examine the technician who conducted the tests and prepared the report.
On the charge against Latumer of possessing methamphetamine, the jury was instructed on the elements necessary to convict: possession of methamphetamine, intent, and the commission of the crime on a given date in Cherokee County. The jury was further instructed to “consider and weigh everything admitted into evidence.” It is difficult to imagine how the jury is to weigh evidence which bears upon the central fact necessary to support a conviction when there is no one who can be questioned about it. Finally, the jurors were instructed that they must presume the defendant is not guilty until they are convinced from the evidence that the defendant is guilty beyond a reasonable doubt. A sine qua non for guilt is the possession of methamphetamine, proof of which is only found in a report, the accuracy of which has not been tested in the courtroom. To overcome the presumption of innocence and convict Latumer of this charge, the jury had to be convinced beyond a reasonable doubt that the lab report was correct. Thus, proof of guilt becomes ipse dixit-. It is so because the State says it is so.
Interestingly, the district court addressed the constitutional right of confrontation in denying the State’s motion in limine which would have prevented Latumer from cross-examining the arresting officer — the only witness on the charge of criminal threat — regarding the manner in which he carried out his official duties in the past. The jury acquitted Latumer of that charge. Yet on La-turner’s dmg possession charge, there was no witness to testify about anything related to the central element of the crime.
The lab report challenged by Latumer is testimonial. In identifying the category of witnesses whom a criminal defendant is entitled to confront, the Crawford Court defined a “witness” as “one who bears testimony” against an accused. It defined “testimony” as a “solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Testimonial statements are made by witnesses who bear testimony. “An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.” Crawford, 541 U.S. at 51. The Crawford Court identified three “formulations” of this core class of testimonial statements. These include the functional equivalent of ex parte in-court testimony, such as affidavits, and “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” 541 U.S. at 51-52. The forensic scientist who prepared Latumer’s lab report was a witness; the statements in her lab report were testimony; and she knew when preparing her report that it would be used by the State at Latumer s trial to prove he committed the crime of possessing methamphetamine.
K.S.A. 2006 Supp. 22-3437 applies to both civil and criminal proceedings. We deal today only with the application of the statute to criminal proceedings. There is no challenge to the application of the statute in a civil case.
K.S.A. 2006 Supp. 22-3437(3) restricts the objections a defendant can assert to the admission of a lab report, requires the defendant to assert an objection or waive the right of confrontation, and gives the district court the authority to evaluate the defendant’s objections. In part, the statute provides:
“An opposing party who intends to object to the admission into evidence of a certificate shall give notice of objection and the ground for the objection within 10 days upon receiving the adversary’s notice of intent to proffer the certificate. Whenever a notice of objection is filed, admissibility of the certificate shall be determined no later than two days before the beginning of the trial. A proffered certificate shall be admitted in evidence unless it appears from tire notice of objection and grounds for that objection that the conclusions of the certificate, including the composition, quality or quantity of the substance submitted to the laboratory for analysis or the alcohol content of a blood or breath sample will be contested at trial. A failure to comply with the time limitations regarding the notice of objection required by this section shall constitute a waiver of any objections to the admission of the certificate.” K.S.A. 2006 Supp. 22-3437(3).
There is no doubt that this portion of the statute undermines a criminal defendant’s Sixth Amendment right of confrontation as explained in Crawford. This provision of the statute permits the admission of a testimonial statement based on a judicial determination of reliability: a permissible practice under Roberts but not now under Crawford. Further, the defendant is deemed to have waived the Sixth Amendment confrontation right if the defendant fails to take affirmative steps to assert it. The United States Supreme Court and Kansas appellate courts disapprove of waivers of Sixth Amendment trial rights based on a silent record. See Boykin v. Alabama, 395 U.S. 238, 242-43, 23 L. Ed. 2d 274, 89 S. Ct. 1709 (1969) (requiring record show defendant entered plea voluntarily); State v. Browning, 245 Kan. 26, 31-32, 774 P.2d 935 (1989); State v. Anziana, 17 Kan. App. 2d 570, 571, 840 P.2d 550 (1992).
Our options under these circumstances are to either invalidate the statute in its application to criminal cases or to excise the offending language from the statute insofar as it applies in a criminal case. Kansas appellate courts may excise unconstitutional language from a statute only if the legislature would have intended the offending language be excised. If we can discern no such intent, we have no option but to nullify the statute. See State v. Limon, 280 Kan. 275, 302-03, 122 P.3d 22 (2005).
K.S.A. 22-3437 and K.S.A. 22-3438 were enacted on July 1, 1993. L. 1993, ch. 261, secs. 3, 5. K.S.A. 22-3438 provides:
“If any provision of this act or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this act which can be given effect without the invalid provision or application. To this end the provisions of this act are severable.”
The clear language of the act permits us to sever the offending language and require courts to uphold a criminal defendant’s confrontation rights as articulated by Davis v. Washington and Crawford. Accordingly, we find that only the portion of K.S.A. 2006 Supp. 22-3437 cited above offends a criminal defendant’s confrontation rights, and we declare that portion of the statute to be unconstitutional when applied to a defendant in criminal case.
Excising the offending portion of the statute to the extent that it applies in a criminal case leaves behind what we believe to be a workable procedure. The State in a criminal case shall provide the 20-day notice of intent to offer into evidence the certificate containing the lab test results as required by the statute. The State, or the court on its own motion, then may schedule a pretrial hearing to determine whether it is necessaiy to present a witness at trial to vouch for the exhibit and testify about it or whether the defendant voluntarily chooses to waive the right of confrontation.
Latumer has raised no contention regarding the sufficiency of the evidence which would require an outright reversal. See State v. Pabst, 268 Kan. 501, Syl. ¶ 8, 996 P.2d 321 (2000). Thus, the appropriate remedy, and the remedy he seeks, is to reverse his convictions and remand the case for retrial. See Lockhart v. Nelson, 488 U.S. 33, 41-42, 102 L. Ed. 2d 265, 109 S. Ct. 285 (1988).
Since the case must be remanded for a new trial, we must briefly address the remaining issues raised by Latumer.
Instructions
Latumer claims the district court erred in instructing the jury on the charge of unlawful possession of methamphetamine. The pattern instmction, PIK Crim. 3d 67.16, provides: “The defendant is charged with the crime of unlawful possession of methamphetamine. The defendant pleads not guilty. To establish this charge, each of the following claims must be proved . . . .” In an apparent oversight, the district court failed to include the sentence “The defendant pleads not guilty” in its instmction.
PIK instructions are recommended but not mandatory. State v. Anthony, 282 Kan. 201, 216, 145 P.3d 1 (2006). Laturner did not object at trial to the omission of this portion of the PIK instmction. Thus, we apply the clearly erroneous standard, under which we will find clear error only if there was an error in the instmction and we are firmly convinced that there is a real possibility the jury would have rendered a verdict more favorable to Latumer had the error not occurred. See Anthony, 282 Kan. at 215.
Considering the instructions as a whole, there was no clear error. See State v. Cooperwood, 282 Kan. 572, 581-82, 147 P.3d 125 (2006). While it is preferable that the absent sentence be included, we are not convinced that the jury, having sat through the entire trial, harbored the belief following the court’s instructions that La- turner was not contesting the charge that he possessed methamphetamine.
Criminal History
Latumer claims his constitutional rights were violated because his criminal history was not proven to a jury beyond a reasonable doubt. This issue was resolved to the contrary in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). Ivory remains good law, and we are bound to follow it.
Assessment of Fees
Latumer’s passing reference in the conclusion of his brief to the “reassessment of the attorney’s fees” is insufficient to raise an issue for us to consider. See State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004).
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Malone, J.:
S.B. (Grandmother) appeals the district court’s orders changing D.M.M.’s placement for adoption following termination of parental rights. We conclude this court lacks jurisdiction to consider Grandmother’s appeal.
D.M.M. was bom on March 4, 2002, while his natural mother, D.M. (Mother), was incarcerated. The identity of D.M.M.’s natural father (Father) was unknown. On March 20, 2002, the State of Kansas filed a Child in Need of Care petition in Doniphan County District Court alleging D.M.M. was in need of care. At the time the petition was filed, D.M.M. was living with Grandmother. Grandmother had previously adopted D.M.M.’s sister and brother.
On April 16, 2002, the district court issued temporary orders placing D.M.M. in the custody of the Department of Social and Rehabilitation Services (SRS) and finding that residential placement with Grandmother was appropriate. On June 3, 2002, the district court adjudicated D.M.M. as a child in need of care. The district court held a disposition hearing on June 24, 2002. At the disposition hearing, the district court found that Mother was on probation in Missouri and ordered her to enter into a reintegration plan with SRS. The district court further found that it was in D.M.M.’s best interests to remain living with Grandmother.
On August 7, 2003( Grandmother filed a motion to terminate parental rights. After conducting a hearing, the district court terminated Mother’s and Father’s parental rights to D.M.M., and the journal entiy was filed on December 16, 2003. The district court placed D.M.M. in the care, custody, and control of SRS, found that it was in D.M.M.’s best interests to be adopted, and granted SRS authority to consent to an adoption. At a September 29, 2004, permanency hearing, SRS indicated that it was working to complete an adoption and that it was negotiating with Grandmother for an adoption subsidy.
On July 11, 2005, SRS removed D.M.M. from Grandmother’s home and placed him in a foster home. SRS removed D.M.M. from the home because it discovered that Grandmother had built and maintained a dog kennel, which consisted of a 6-foot high section of chain link fencing and a gate, to contain D.M.M. inside Grandmother’s living room. Grandmother described the structure as a “safe place” for D.M.M. because he was too big for a regular playpen. Although SRS could not confirm that D.M.M. had been abused or neglected, it removed D.M.M. from Grandmother’s home and told Grandmother to dismantle the “safe place.”
Grandmother filed a motion asking the court to review SRS’s emergency removal of D.M.M. from her home. After conducting a hearing, the district magistrate approved the emergency removal. The magistrate found that Grandmother had failed to follow 9 of the 11 recommendations regarding discipline, medication, and parenting given to her by Kanza Mental Health. The magistrate further found that Grandmother’s home was chaotic, unsafe, and disruptive to the mental health of D.M.M. Specifically, the magistrate found that the “ ‘safe place’ was an inappropriate device to provide safety to [D.M.M.].” The order approving SRS’s emergency removal of D.M.M. was filed on November 3, 2005.
Grandmother appealed the magistrate’s order to the district court. At a hearing on December 28, 2005, the district court, on its own motion, raised the issue of jurisdiction and determined the district court did not have jurisdiction to review the magistrate’s decision approving the emergency removal of D.M.M. At die hearing, Grandmother made an oral motion for interested party status, which the district court granted.
Grandmother filed subsequent motions with the district court. At a hearing on one of the motions, Grandmother made an oral motion for an evidentiary hearing on whether SRS had performed reasonable efforts to find an adoption placement for D.M.M. The district court granted Grandmother’s motion and scheduled the evidentiary hearing on October 11, 2006. At the hearing, Grandmother argued that D.M.M. should either be placed back with her or with another family member for adoption. After hearing the evidence, the district court found that SRS had performed reasonable efforts to find D.M.M. an adoptive family, and denied Grandmother’s motion for change of placement. Grandmother filed a notice of appeal, and she subsequently filed an amended notice of appeal.
Grandmother’s amended notice of appeal indicates she is appealing several different rulings of the district court, all entered after the termination of parental rights. However, Grandmother has raised only two issues in her appellate brief. First, she claims the district court erred in refusing to review the magistrate’s order approving the emergency removal of D.M.M. from Grandmother’s home. Second, she claims the district court erred in determining that SRS had performed reasonable efforts to find D.M.M. an adoption placement and in denying Grandmother’s request to place D.M.M. back with Grandmother or with another family member for adoption.
Before we can address the merits of Grandmother’s claims, we must determine whether this court has jurisdiction over Grandmother’s appeal. SRS argues this court does not have jurisdiction to consider the appeal. Specifically, SRS argues Grandmother does not have statutory authority under K.S.A. 2006 Supp. 38-2273 to appeal the challenged orders of the district court.
Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). Appellate courts have only such jurisdiction as is provided by law. The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. It is an appellate court’s duty to dismiss an appeal when the record discloses a lack of jurisdiction. In re Condemnation of Land v. Stranger Valley Land Co., 280 Kan. 576, 578, 123 P.3d 731 (2005).
The Revised Kansas Code for Care of Children (Code) (K.S.A. 2006 Supp. 38-2201 et seq.) became effective on January 1, 2007. L. 2006, ch. 200, sec. 121. Appeals under the Code were previously governed by K.S.A. 38-1591. Under the Revised Code, appeals are governed by K.S.A. 2006 Supp. 38-2273. However, die language of the two statutes is identical. K.S.A. 2006 Supp. 38-2273(a) provides that “[a]n appeal may be taken by any party or interested party from any order of temporary custody, adjudication, disposition, finding of unfitness or termination of parental rights.”
Grandmother was granted interested party status by the district court, so she has standing to appeal under the Code. However, in order for this court to have jurisdiction over Grandmother s appeal, the orders being appealed must be one of the four types of appealable orders under K.S.A. 2006 Supp. 38-2273(a), i.e., temporary custody, adjudication, disposition, or termination of parental rights. Resolution of this issue requires statutory interpretation. The interpretation of a statute is a question of law over which an appellate court has unlimited review. Dickerson v. Schroeder, 281 Kan. 661, 663, 132 P.3d 929 (2006).
“The fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Courts presume that the legislature expressed its intent through the language of the statutory scheme. When the language of a statute is plain and unambiguous, a court must construe the statute to give effect to the legislature’s intent as expressed rather than determine what the law should or should not be.” 281 Kan. at 663.
The orders Grandmother is attempting to appeal do not address temporary custody. Under the Code, a temporary custody order identifies who will have temporary custody of a child who needs protection. See K.S.A. 2006 Supp. 38-2242; K.S.A. 2006 Supp. 38-2243. Here, the district court issued a temporary custody order on April 16, 2002, that placed D.M.M. in SRS’s custody. After terminating Mother’s parental rights, the court permanently placed D.M.M. in SRS’s custody. The orders Grandmother is attempting to appeal concern placement of D.M.M. after parental rights were terminated, but the orders being appealed do not concern the custody of D.M.M., temporary or otherwise. Grandmother was never granted temporary custody of D.M.M. at any time in the proceedings.
The terms adjudication, disposition, and termination of parental rights are all terms of art under the Code, each carrying its own meaning and each occurring in a certain sequence. In re S.C., 32 Kan. App. 2d 514, Syl. ¶ 7, 85 P.3d 224 (2004). Under the Code, an adjudication only refers to a determination that a child is in need of care. K.S.A. 2006 Supp. 38-2251. D.M.M. was adjudicated a child in need of care on June 3, 2002. Neither of the orders Grandmother is appealing is an adjudication order.
A disposition under the Code refers to the court order concerning custody after a child has been adjudicated a child in need of care. K.S.A. 2006 Supp. 38-2255. After adjudicating D.M.M. a child in need of care, the district court held a disposition hearing on June 24,2002. The district court placed D.M.M. in SRS custody and found at that time that it was in D.M.M.’s best interests to live with Grandmother. The orders Grandmother is attempting to appeal are not orders of disposition.
The orders being appealed are clearly not a finding of unfitness or termination of parental rights. This procedure is governed by K.S.A. 2006 Supp. 38-2266 et seq. Here, Mother and Father were found to be unfit and their parental rights were terminated on December 16, 2003. In fact, the motion to terminate parental rights was filed by Grandmother, and obviously Grandmother is not appealing the district court’s ruling on that motion.
The orders Grandmother is attempting to appeal can best be characterized as orders regarding change in placement. K.S.A. 2006 Supp. 38-2258 and K.S.A. 2006 Supp. 38-2259 detail the procedure SRS and district courts should follow when there is a change in placement, as there was in this case. However, it is clear that the orders Grandmother is attempting to appeal do not fit within one of the four types of appealable orders under K.S.A. 2006 Supp. 38-2273(a). If the legislature had intended to allow an order regarding a change in placement to be appealable, the legislature could have easily listed this as an appealable order under the statute.
Grandmother acknowledges that K.S.A. 2006 Supp. 38-2273(a) is problematic to her right to appeal, but she points out this court has exercised jurisdiction in other cases similar to her case. See In re M.R., 36 Kan. App. 2d 837, 146 P.3d 229 (2006); In re D.C., 32 Kan. App. 2d 962, 92 P.3d 1138 (2004). Both these cases involve disputes over the placement of a child for adoption after termination of parental rights. See also In re D.D.P., 249 Kan. 529, 819 P.2d 1212 (1991) (Supreme Court exercised jurisdiction over appeal of district court order denying CASA interested party status).
Even though it appears that the orders in these cases were not appealable orders under the Code, the appellate courts considered the appeals without addressing the issue of jurisdiction. It appears that neither the parties nor the appellate courts realized there was a potential jurisdiction problem in any of the cases. Regardless of the appellate courts’ actions in these cases, this court is “bound by the Code and its provisions concerning appeals.” S.C., 32 Kan. App. 2d at 518. The right to appeal is entirely statutory and appellate courts have only such jurisdiction as is provided by law. It is an appellate court’s duty to dismiss an appeal when the record discloses a lack of jurisdiction. In re Stranger Valley Land Co., 280 Kan. at 578.
We conclude there is no appealable order in this case, and this court does not have jurisdiction over Grandmother’s appeal. As Grandmother notes in her brief, this may appear to be a harsh or unfair result because it leaves someone in Grandmother’s situation without an appealable remedy. However, this is a problem only the legislature can address. Because Grandmother does not have statutory authority under K.S.A. 2006 Supp. 38-2273(a) to appeal the challenged orders of the district court, we decline to address the merits of Grandmother’s appeal.
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McAnany, J.:
This appeal arises out of a dispute between Fort Hays State University and Dr. Thomas O. Guss, a faculty member, regarding the interpretation of Guss’ retirement agreement. Guss sought judicial review of the University’s adverse interpretation of the agreement. On review the district court interpreted the agreement in Guss’ favor. The University now appeals, claiming the district court erred in its interpretation of the agreement. The University also contends that Guss failed to exhaust his administrative remedies and failed to file his petition for judicial review within the requisite time period.
Guss began his transition into retirement in 2003. He and the University executed a Notice of Continuing Tenured Faculty Appointment on June 25,2003. The University agreed to employ Guss half-time as a professor for the 2003-2004 academic year. The no tice contained the statement: “Details are included in the phased retirement agreement.”
The 5-year phased retirement agreement was entered into 2 days later on June 27, 2003. The agreement was effective August 17, 2003. Guss agreed to work half-time as a professor at an annual salary of $26,004. He remained eligible for annual merit salary adjustments. The University agreed to continue Guss’ half-time position until May 18, 2008, subject to certain contingencies. With respect to his half-time teaching schedule, “[t]he exact schedule by which this reduction is achieved may be adjusted annually by mutual agreement between the Employee and the University.”
The parties agreed to begin Guss’ phased retirement by Guss being off work for the fall semester of the 2003-2004 academic year and then teaching full-time during the spring semester. There is no dispute that Guss fulfilled his obligations for the 2003-2004 academic year.
On June 9, 2004, Guss received an annual salary increase to $27,104 for the coming 2004-2005 academic year. On June 17, 2004, the University issued its Statement of Responsibilities for the 2004-2005 academic year. The statement required Guss to teach 6 credit hours in the 2004 fall semester and 6 credit hours in the 2005 spring semester. Guss rejected this schedule and insisted that he continue to teach on the schedule which had been used since the inception of his phased retirement. The University responded that it had the right to establish Guss’ schedule and it expected Guss to teach half-time during both semesters of the coming school year. Guss was directed to be present at the University no later than August 23, 2004, to undertake his teaching duties for the fall semester. Guss was instructed: “[I]f you fail to be present and commence your teaching duties, we will consider you to have abandoned your position and will initiate appropriate proceedings to terminate your contract with Fort Hays State University.” When Guss did not appear in Hays as directed, the University informed Guss that his employment would be terminated effective September 15, 2004.
Guss filed an informal grievance with the University, asserting his right to reject a unilaterally imposed class schedule and his right to be paid for unused sick leave. Following a departmental hearing, the grievance committee announced on December 8, 2004, that it rejected Guss’ argument regarding his teaching schedule under the phased retirement agreement, but recognized that Guss was entitled to reimbursement for sick leave pay. Six days later, Dean Guy Mills advised Guss’ counsel that he concurred with the recommendations of the grievance committee.
Guss appealed Mills’ decision. On February 18, 2005, the University Appeals Committee issued its recommendation to the University’s president, Edward Hammond. The appeals committee agreed with Mills’ decision that Guss was required to teach halftime both semesters and that he was entitled to be paid for unused sick leave. In a letter dated February 24, 2005, Hammond stated that he accepted the recommendations of the University Appeals Committee.
Within 30 days thereafter, on March 23, 2005, Guss filed a petition for judicial review with the district court.
On April 12, 2005, almost 2 months after he accepted the recommendations of the University Appeals Committee, Hammond issued a letter informing Guss that he had concluded both the formal and informal phases of the University’s grievance procedures, and therefore Guss had exhausted his administrative remedies. The letter purported to serve as notice of a final agency action by the University. The University then filed a motion to dismiss Guss’ petition for judicial review. It argued that the district court lacked subject matter jurisdiction because Guss failed to exhaust his administrative remedies before seeking judicial review and failed to timely file his petition for judicial review.
The district court rejected the University’s jurisdiction and contract interpretation arguments, entered a money judgment in favor of Guss for his unpaid salary, and ordered Guss to be reinstated for the remaining term of his contract. The court also affirmed the University’s decision that Guss was entitled to sick leave pay.
The University appealed.
Exhaustion of Administrative Remedies
The first question before us is whether Guss exhausted his administrative remedies before seeking relief in the district court. The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., requires the exhaustion of administrative remedies before seeking judicial review. K.S.A. 77-612; Cole v. Mayans, 276 Kan. 866, 870, 80 P.3d 384 (2003). Whether Guss failed to exhaust his administrative remedies is a question of law over which our review is unlimited. 276 Kan. at 869.
The University contends that Guss filed his petition for judicial review on March 23, 2005, before the University issued its final order in the form of Hammond’s April 12, 2005, letter to Guss. Guss had to file his petition for judicial review within 30 days after service of a final order. K.S.A. 77-613(b). While the KJRA does not define a final order, an agency’s order is a particular type of agency “action.” See Wiest v. Kansas Board of Regents, 30 Kan. App. 2d 301, 304, 40 P.3d 988 (2002). It is an agency action which determines the legal rights and duties of the parties. See K.S.A. 77-602(e). An agency action is nonfinal if the agency intends, or is reasonably believed to intend, that its action is “prehminary, preparatory, procedural or intermediate.” See K.S.A. 77-607(b)(2). A “final agency action” is simply any agency action other than a non-final agency action. K.S.A. 77-607(b)(l).
No special incantations or magic words are required to create a final agency order. Kansas courts have consistently recognized that a relatively informal letter may constitute a final order for purposes of the statute. For example, see Reifschneider v. Kansas State Lottery, 266 Kan. 338, 969 P.2d 875 (1998). In the context of disputes between universities and faculty members, see Wiest as well as Schall v. Wichita State University, 269 Kan. 456, 7 P.3d 1144 (2000).
While Hammond’s letter of February 24, 2005, appears to inform Guss of the University’s final decision on the matter, the University claims that it did not because it failed to resolve the issue of sick pay.
An order cannot be final if the matter is still under “active consideration” by the tribunal. Bruns v. Kansas State Bd. of Technical Professions, 19 Kan. App. 2d 83, 85, 864 P.2d 1212 (1993), aff'd 255 Kan. 728, 877 P.2d 391 (1994). In the February 24, 2005, letter, Hammond agreed with the committee’s recommendation that Guss should be paid the value of his outstanding sick leave using the University’s regular procedure for making such a calculation. There was no dispute as to the amount of Guss’ accumulated sick leave. Hammond directed that Tom Kuhn in the personnel office make the calculation so that the University could issue a check in the appropriate amount to Guss. The fact that there remained to be done the ministerial tasks of doing the mathematical calculation and issuing a check does not establish that the matter was still under active consideration. We are not persuaded by the University’s argument on this point.
The University points out that Hammond’s letter of February 24, 2005, was directed to Dr. John Heinrichs, the author of the February 18, 2005, letter which informed Hammond of the decision of the appeals committee. A copy was directed to Guss’ attorney. The University also points out that Hammond’s letter does not state the person at the University designated to receive service of process in any action for judicial review. From this, the University argues that Guss’ appeal was premature since the letter does not satisfy the requirements of K.S.A. 77-613(e).
K.S.A. 77-613(e) states in pertinent part:
“Service of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any, by delivering a copy of it to them or by mailing a copy of it to them at their last known addresses. . . . Unless reconsideration is a prerequisite for seeking judicial review, a final order shall state the agency officer to receive service of a petition for judicial review on behalf of the agency.”
Failure to satisfy K.S.A. 77-613(e) does not mean that Hammond’s letter was not the University’s final order. In ReifSchneider, the court declared that strict compliance with this statute is required. However, failure to do so does not render the document something other than a final order; rather, it simply tolls 30-day period for the filing of a petition for judicial review.
Finally, the actions of the University belie any suggestion that Hammond’s February 24, 2005, letter was not intended to be the University’s final order. The University followed the procedure and time schedule for grievances set forth in the University handbook. The departmental hearing committee rendered its decision within 10 working days of its hearing. The dean informed Guss that he concurred with the committee’s recommendations within 10 working days following receipt of the departmental hearing committee’s decision. When the appeals committee communicated its recommendation to Hammond, it cautioned him that the University’s Faculty Handbook required him to express his concurrence with the committee’s recommendation within 10 days. Hammond communicated his concurrence with the decision of the appeals committee within 10 days of the appeals committee’s recommendation to him. The letter of April 12, 2005, which the University now claims to be the final order, was issued nearly 2 months after Hammond received the University Appeals Committee’s recommendation.
The district court did not err in concluding that the University’s letter of February 24, 2005, constituted a final order despite the remaining ministerial task of calculating the value of Guss’ unused sick leave, and despite the failure of the letter to strictly comply with the requirements of K.S.A. 77-613(e).
We note in passing the University’s claim that Guss’ petition for judicial review was untimely in light of K.S.A. 77-613, which requires the petition to be filed within 30 days after service of the agency’s final order. Since the University issued its final order on February 24, 2005, Guss’ petition filed on March 23, 2005, was timely.
Contract Interpretation
Contract interpretation is a matter of law over which we exercise unlimited review. See Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001). However, the University argues that when the contract is of a type which regularly appears before the agency and with which the agency must acquire some familiarity and expertise, the agency’s interpretation, if reasonable, is persuasive and is entitled to careful consideration by reviewing courts. Kansas Bd. of Regents v. Pittsburg State Univ. Chap. of KNEA, 233 Kan. 801, 810, 667 P.2d 306 (1983). The issues presented here are matters of ordinary contract interpretation in the familiar context of an employment agreement. They involve no specialized or arcane expertise of the University. The University does not suggest that the fact that the employee in question is a college professor adds to the mix a consideration over which the University has special insight beyond that of the courts. Further, the University is not a neutral arbiter called upon to resolve a dispute between competing parties. The University is one of the competing parties itself. It is a party to the contract it now seeks to interpret. Its interpretation of the contract can hardly be viewed as impartial. Accordingly, we will examine anew the interpretation of the University’s contract with Guss.
The task at hand is to ascertain the intent of the parties. If the terms of the contract are clear, there is no room for rules of construction, and the intent of the parties is determined from the contract itself. Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002). Thus, absent any ambiguity, we must give effect to the intent of the parties as expressed within the four corners of the contract. Blair Constr., Inc. v. McBeth, 273 Kan. 679, 691, 44 P.3d 1244 (2002).
The University asserts four claims regarding interpretation of this contract, none of which has merit. They are: (1) a plain reading of the agreement requires Guss to work half-time during the entire academic year, not merely full-time one semester; (2) pursuant to paragraph 1 of the phased retirement agreement, the University may unilaterally adjust Guss’ work schedule; (3) the mutual agreement requirement of paragraph 1 applies not to the actual scheduling of classes, but to Guss’ part-time status; and (4) the University has an absolute right to direct Guss’ work pursuant to the Public Employer-Employee Retirement Act (PEERA) and the AAUP.
The provisions having any potential bearing on this matter are found in paragraphs 1, 7, and 8 of the agreement. Paragraph 1 provides:
“Effective August 17, 2003, Employee shall be appointed to the position of Professor of Educational Administration and Counseling on a half-time (.5 FTE) nine-months appointment, at an annual salary of $26,004. The exact schedule by which this reduction is achieved may be adjusted annually by mutual agreement between the Employee and the University.”
Paragraph 7 provides:
“While this Agreement is otherwise irrevocable, the Employee and the University may, by mutual agreement, modify the terms hereof at any time prior to Employee’s retirement, to reduce further the Employee’s fractional time appointment or to provide for an earlier full retirement date for Employee. Any such modification of this Agreement must be in writing.”
Paragraph 8 provides:
“This Agreement [1] is intended to terminate anyprevious agreement, contract, or understanding concerning this employment relationship; [2] will remain in effect even if the University subsequently establishes different policies or enters into agreements containing different terms and conditions of employment of any unclassified employee; [3] is subject to all provisions of the laws of Kansas, the regulations, policies, minutes, and resolutions of the Board of Regents and the rules, regulations, and policies of University; and [4] is subject to such additional terms as set forth in Employee’s annual Letter of Appointment.”
Considering the University’s contentions in order, a plain reading of the agreement does not require Guss to work half-time during the entire academic year as opposed to full-time one semester. We find no ambiguity in the contract. The contract calls for a traditional 9-month appointment, consistent with the typical academic year. Rather than working full-time, however, Guss’ work obligation is reduced to half-time. As plainly and clearly stated by the agreement: “The exact schedule by which this reduction is achieved may be adjusted annually by mutual agreement between the Employee and die University.” It is clear that the reduction to a half-time schedule could be accomplished in various ways, and the parties were free to adjust the schedule by mutual agreement to accomplish this end. No reasonable reading of the agreement leads to the conclusion that Guss was required to work half-time during each semester.
Next, the University argues that pursuant to paragraph 1 of the phased retirement agreement, the University may adjust Guss’ schedule annually but is not required to do so. This is true. Adjustments in the schedule are by mutual agreement, and the University can withhold its consent to a change. However, the University extends its argument to the assertion that it may unilaterally amend the schedule as it sees fit. This interpretation ignores the clear and unambiguous expression in the contract. Stripped of excess verbiage, the essence of the last sentence of paragraph 1 is: The schedule may be adjusted by mutual agreement. Thus, if the parties cannot mutually agree to an adjustment, the schedule will not change. To read the sentence otherwise would render useless the phrase “by mutual agreement,” contrary to well-established case law. See, e.g., LDF Food Group, Inc. v. Liberty Mut. Fire Ins. Co., 36 Kan. App. 2d 853, 863, 146 P.3d 1088 (2006) (“judicial interpretation should not render any term meaningless”).
Next, the University argues that the mutual agreement requirement of paragraph 1 applies not to the actual scheduling of classes, but only to Guss’ part-time status; thus, it applies only to Guss’ decision to work more or less than half-time. Such an interpretation renders a portion of the phased retirement agreement meaningless. Paragraph 7 of the agreement specifically delineates the procedure for adjusting an employee’s workload, which also must be done by mutual agreement. If we were to apply the mutual agreement requirement only to a further change in Guss’ workload, the mutual agreement requirement in paragraph 7 would be superfluous. Further, the last sentence of paragraph 1 states: “The exact schedule by which this reduction is achieved . . . .” (Emphasis added.) “This reduction” refers to Guss’ half-time status, not some other workload agreement.
Next, the University points to the provision in paragraph 8 that the agreement “is subject to all provisions of the laws of Kansas, the regulations, policies, minutes, and resolutions of the Board of Regents and the rules, regulations, and policies of University.” From this the University argues that it has authority to make any final determination of teaching assignments pursuant to its collective bargaining agreement with the AAUP.
This argument fails for two reasons. First, the collective bargaining agreement was not incorporated into the phased retire ment agreement, and the AAUP was not a party to the negotiations or Guss’ phased retirement agreement. Second, if the collective bargaining agreement were to take precedence as the University suggests, for the University to negotiate individual contracts with its faculty members would be a meaningless exercise. Here, the University contracted away its right to unilaterally determine Guss’ schedule by entering into the phased retirement agreement.
The University also cites to K.S.A. 75-4326(a) of PEERA, which states that nothing in the act is meant to affect the existing rights of a public employer to “[d]irect the work of its employees.” PEERA does not give the University the right to disregard contracts of employment in directing the work of its employees. Rather, PEERA permits the University to direct the work of its employees notioithstanding the provisions of PEERA. In other words, PEERA is subordinate to the University’s right to direct the work of its employees. Here, the University has contracted away its absolute right to direct Guss’ work and has agreed that changes to Guss’ schedule must be based upon the mutual agreement of the parties.
Finally, the University argues from this same provision in paragraph 8 that the district court’s interpretation of the contract provides University faculty members with the absolute right to set their own schedules, contrary to University policy. It does not. The University’s argument ignores the provision for schedule change by “mutual agreement.” While the University normally has the right to set the schedules of its faculty members, here the University negotiated away that right in the phased retirement agreement by agreeing to schedule changes only upon the mutual agreement by the parties.
Even if we were to defer to the University’s interpretation of the contract, we find no rational basis upon which to uphold the University’s interpretation of the phased retirement agreement. Because Guss did not agree to a schedule adjustment, the University was required to continue his employment pursuant to their initial agreement as provided in the Statement of Responsibilities 2003- 2004. The district court did not err in its interpretation of the agreement.
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Marquardt, J.:
Jose Mora Soto appeals the trial court’s grant of summaiy judgment to the Unified Government of Wyandotte County, Kansas, and the Wyandotte County Sheriffs Department (County). We affirm.
In November 2003, Soto was stopped by Bonner Springs Police Officer Mark Stites, who noticed that Soto’s license plate was loose and hanging. Soto testified that the license plate on the car he was going to drive had expired, so he put a license plate from another car on the car he intended to drive. Officer Stites was told by a police dispatcher that the license plate on the car Soto was driving belonged to a car of a different make and model.
Soto provided Officer Stites a driver’s license for Jose M. Soto. Officer Stites requested information from the dispatcher about Jose M. Soto, a Hispanic male with a date of birth of December 26, 1973. The dispatcher responded that there was a Johnson County warrant for Jose L. Soto, a Hispanic male with a date of birth of December 24, 1973. Further investigation revealed that the driver’s license given to Officer Stites by Soto had the same number as the driver’s license provided by the dispatcher. Officer Stites confirmed through the dispatcher that the warrant was valid.
Officer Stites arrested Soto and transported him to the Wyandotte County detention center with the understanding that someone from the Johnson County Sheriff s office would pick him up. Deputy David Ornelas, the intake booking officer at the detention center, called Johnson County and provided Soto’s first and last names, middle initial, date of birth, and the warrant number. The Johnson County officer again confirmed that the warrant was still valid and requested that Wyandotte County continue to detain Soto.
Soto protested his arrest and claimed he was not the person named in the warrant. After approximately 2Yz days, Soto was picked up by authorities from Johnson County. Not long after he arrived at the Johnson County facility, Soto pointed out that he did not look like the person pictured on the warrant, and Soto was released.
In January 2005, Soto filed a petition claiming negligence against various officers, the City of Bonner Springs, and the County. Soto later conceded that all of his negligence claims were, in fact, claims for false arrest.
The City of Bonner Springs, Chief John Haley, and Officer Stites filed a motion for summary judgment arguing that Soto’s claim for false arrest was filed outside of the 1-year statute of hmitations. They also claimed protection under certain portions of the Kansas Tort Claims Act (KTCA), most importantly the discretionary function exception.
The County filed a separate motion for summary judgment. It argued the officers were legally justified in detaining Soto because there was probable cause to believe there was a valid warrant for his arrest. The County claimed that the officers had no duty to investigate whether Soto was, in fact, the person named in the Johnson County warrant. Finally, the County argued that the discretionary function and police protection exceptions in the KTCA provided immunity from liability.
After hearing arguments, the trial court concluded that Soto’s petition as to Bonner Springs was barred by the statute of hmitations and there was probable cause to believe there was a valid warrant for Soto’s arrest. Finally, the trial court ruled that the discretionary function exception applied to Soto’s claims against the County. The trial court granted summary judgment to Bonner Springs and the County. Soto appeals the trial court’s order granting summary judgment to the County.
On appeal, Soto contends that the discretionary function exception was not an absolute protection for the County. Soto argues that the County caused wanton injury by completely disregarding his claims of innocence.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 788, 107 P.3d 1219 (2005).
K.S.A. 2006 Supp. 75-6104 provides that a governmental entity or an employee acting within the scope of the employee’s employment shall not be hable for damages resulting from:
“(e) any claim based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a governmental entity or employee, whether or not the discretion is abused and regardless of the level of discretion involved.”
As the trial court noted, a cause of action which alleges negligent conduct by law enforcement officers which results in false arrest and consequent damages is a cause of action for false arrest and imprisonment. Brown v. State, 261 Kan. 6, Syl. ¶ 2, 927 P.2d 938 (1996). “False arrest” is the restraint of the personal freedom of an individual without legal excuse by any words, acts, threats, or personal violence that under the circumstances the one being restrained fears to disregard. Mendoza v. Reno County, 235 Kan. 692, 695, 681 P.2d 676 (1984).
The County argued that the discretionary function exception to the KTCA immunized it from liability for false imprisonment. The County’s theory was that once the facial validity of the Johnson County warrant was confirmed, any further investigation to determine whether Soto was the person named in the warrant was a discretionary function.
There is no Kansas case law directly on the issue raised in this case. In Davis v. Klevenhagen, 971 S.W.2d 111 (Tex. App. 1998), the Texas Court of Appeals held that the decision to arrest someone on an outstanding warrant is a discretionaiy function. The court concluded, “An officer’s decision regarding ‘if, how, and when to arrest a person’ is discretionary.” 971 S.W.2d at 117-18. The court further concluded that “a police officer is engaged in a discretionary function in determining ‘how to investigate, and to what extent to investigate before seeking a warrant.’ ” 971 S.W.2d at 118. The court then held that the same level of deference should apply to “an officer seeking to determine whether a presenting individual is the same individual named in an arrest warrant.” 971 S.W.2d at 118.
In his brief, Soto claims that the County officers’ actions can negate the discretionary function exception. However, the case cited by Soto, Hopkins v. State, 237 Kan. 601, 702 P.2d 311 (1985), does not address the discretionary function exception of the KTCA.
Moreover, Soto has stated no facts to support his claim that the County officers acted in a wanton manner. It is undisputed that Soto’s driver’s license number was the same as the one listed on the warrant. The birth dates, heights, and weights were quite similar. Officer Stites confirmed that the Johnson County warrant was still active prior to arresting Soto. Deputy Ornelas spoke with Johnson County after Soto was taken to the detention facility and confirmed the warrant was still active. At that time, Deputy Ornelas was told that the warrant was for Soto and that Johnson County wanted the County to continue to hold Soto until he could be retrieved by Johnson County officials.
We see nothing wanton about that procedure. As the Davis court noted, there is a large amount of discretion when determining whether an individual is actually the person identified in a warrant. Therefore, we believe the facts of this case fall squarely within the discretionary function exception to the KTCA.
Soto claims there were other cases in the County similar to his; however, there is no evidence in the record on appeal that any of the officers who directly dealt with Soto in this case had any knowledge of the prior court actions.
Soto also notes that the County had a policy (Detention Center Standard Operating Procedures: No. C-100) which directed jail personnel to “receive and review” the documents of persons arrested to ensure the identity of the person being booked. Soto refers to a document which states: “The Intake Deputy shall receive and review the arrest documents with an eye for the content and the correct statement of charges.” After reviewing the record on appeal, we believe that all of the officers performed this duty. Nothing in the policy required the officers to compare fingerprints or access a photograph. We do not believe the policy cited by Soto operates in any way to remove this action from the discretionary function exception to the KTCA. The trial court correctly granted the County’s motion for summary judgment.
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McAnany, J.:
This appeal centers on the issue of who will pay for Mary Ann Fletcher’s work-related injuries: her employer who became self-insured on July 1,2004, or her employer’s insurer who provided workers compensation coverage prior to that date.
Fletcher worked as a custodian for the Blue Valley School District where her job duties included waxing, buffing, mopping and stripping floors; removing tables and desks; cleaning; and other building maintenance. She regularly used vibrating equipment, such as scrubbing and buffing machines, to accomplish these tasks. She began experiencing tingling in her hands in 1998 or 1999, reported it to her supervisor, and sought medical treatment on her own.
In May 2000, Blue Valley referred Fletcher to Dr. John B. Moore, who ultimately performed cubital tunnel release surgery on her elbows. He repaired her right elbow in December 2002 and performed the same surgery on her left elbow the following month. He released her to return to work without restrictions in April 2003. A few months later, Fletcher again experienced tingling, numbness, and related complaints in her hands. She was again examined by Moore, who diagnosed her with carpal tunnel syndrome.
In June 2003, Dr. Edward J. Prostic examined Fletcher and opined that Fletcher’s injuries were caused by her custodial work. He rated her as having a 15% functional impairment to the body as a whole.
On November 3, 2003, Moore performed bilateral carpal tunnel releases on both of Fletcher’s wrists. He released her to return to work with restrictions on April 2, 2004. Moore rated Fletcher as having a 9% whole person functional impairment, noting that Fletcher’s rating would have been 17% but was reduced because her grip strength tests indicated symptom magnification in half the tests.
Her restrictions were lifted and she returned to her regular work duties, causing her again to experience pain in her wrists, for which she received injections by a hand specialist, Dr. Michael Hall. She was again examined by Prostic who opined that she suffered additional injury and increased impairment, resulting in an increased rating of 20% whole person functional impairment.
On July 1, 2004, Blue Valley became self-insured with respect to workers compensation claims. Prior to this time Blue Valley had coverage through the Kansas Association of School Boards Workers Compensation Fund.
Fletcher continued to work with ongoing symptoms until February 8, 2005, her last day of employment. The following day she injured her lower back in an automobile accident which prevented her from returning to work.
At the regular hearing in December 2005, the ALJ found that Fletcher’s date of accident was the last day of employment, February 8, 2005, and that her permanent functional impairment was 14.5% to the body as a whole. Blue Valley’s insurer paid Fletcher’s authorized medical expenses to June 30, 2004, the end date for insurance coverage, along with temporary total disability benefits due up to that date. Self-insured Blue Valley was ordered to pay all authorized medical expenses thereafter, together with permanent partial disability benefits based upon 14.5% impairment to the body as a whole.
Upon review, the Workers Compensation Board found that Moore improperly reduced his rating of Fletchers’s impairment from 17% to 9% based on alleged symptom magnification. Thus, based on Moore’s unadjusted rating of 17% and Prostic’s rating of 20%, the Board found that Fletcher suffered an 18.5% whole person functional impairment. The Board confirmed that the last-day-worked rule applied.
Blue Valley appeals.
Last-Day-Worked Rule
Blue Valley claims the Board erred in applying the bright-line last-day-worked rule in Treaster v. Dillon Companies, Inc., 267 Kan. 610, 987 P.2d 325 (1999), to determine Fletcher’s date of injury. It argues that since Fletcher ended her employment due to an unrelated auto accident and not due to pain and disability resulting from her carpal tunnel syndrome, her date of accident was prior to July 1, 2004, when Blue Valley had insurance coverage.
Our review of decisions by the Workers Compensation Board under the provisions of the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq., see K.S.A. 2006 Supp. 44-556(a), is limited to determining whether the Board erroneously interpreted or applied the, law, and whether the Board’s decision is supported by substantial competent evidence in light of the whole record or is unreasonable, arbitrary, or capricious.
The bright-line last-day-worked rule, which Blue Valley claims does not apply, is used to establish the date of injury for a repetí tíve, microtraumatic injury such as carpal tunnel syndrome. Under the rule, the date of injury is the last day worked. See Kimbrough v. University of Kansas Med. Center, 276 Kan. 853, 855, 79 P.3d 1289 (2003). The rule was established in Berry v. Boeing Military Airplanes, 20 Kan. App. 2d 220, 229-30, 855 P.2d 1261 (1994), and approved of by our Supreme Court in Treaster, 267 Kan. at 623-24. In Treaster, our Supreme Court stated:
“We do not limit Berry to only situations where the claimant could no longer continue his or her employment because of medical conditions. The expected result of Berry was for workers to be allowed the latest possible date for their claim period to begin, not for claimants and respondents to try to pick a date of accident or occurrence that best serves their financial purposes.” 267 Kan. at 623.
Blue Valley argues that Condon v. Boeing Co., 21 Kan. App. 2d 580, 903 P.2d 775 (1995), applies, not Treaster. In Condon, the court recognized an exception to the bright-line rule in Berry when the claimant, who suffered from injuries caused by microtraumas, was laid off in a general layoff. Our court held that because the cessation of employment was not due to a medical condition, the date of injury was not always the last day worked. However, in Treaster, our Supreme Court analyzed Condon as follows:
“This retreat from Berry’s bright line rule appears to be largely fact driven, as the opinion holds there was substantial competent evidence to uphold the Board’s decision that restrictions placed on Condon had occurred by June 15,1993, and work subsequent to July 1 would not have significantly contributed to her condition when she was laid off for reasons not related to her medical condition on July 6, 1993.
“. . . With the Board’s decision being upheld only because it was supported by substantial competent evidence, Condon should be limited to its facts and not used to erode Berry’s authority.
“To the extent we have stated herein, the logic and results of Condon . . . are disapproved.” Treaster, 267 Kan. at 619-24.
Treaster controls in cases of repetitive microtraumatic injuries, and we are bound to follow it. Noone v. Chalet of Wichita, 32 Kan. App. 2d 1230, Syl. ¶ 1, 96 P.3d 674, rev. denied 278 Kan. 846 (2004).
Finally, Blue Valley urges that Durham v. Cessna Aircraft Co., 24 Kan. App. 2d 334, 945 P.2d 8, rev. denied 263 Kan. 885 (1997), controls. It does not. In Durham, the claimant suffered a repetitive use type injuiy to his shoulder but lost no work from the injuiy until July 22, 1993, when he had surgery on his shoulder. He then returned to work in an accommodated position. This court concluded that the date of injury was July 22, 1993, the last day Durham worked in the position which caused his injuiy. 24 Kan. App. 2d at 336. Unlike in Durham, Fletcher returned to work doing the same activities that caused her injuries. For Durham, the micro-traumas énded when he left work for his surgery. For Fletcher, they continued throughout her employment.
After Fletcher’s diagnosis and treatment for a repetitive trauma injury, she continued to work as a custodian for Blue Valley doing the same work that caused her injuiy. She complained of pain and numbness associated with this injuiy until she left Blue Valley on February 8, 2005. Prostic testified that the microtraumas associated with her work caused her injury and continued through the last day of her employment.
We find no error by the Board in applying the last-day-worked rule to Fletcher’s injury. Treaster makes it clear that it is irrelevant that Fletcher left her employment at Blue Valley because of an unrelated accident, not because of her carpal tunnel syndrome. The bright-line rule in Berry is not limited to situations in which the claimant can no longer continue employment because of a medical condition. Accordingly, the Board did not err in applying the bright-line last-day-worked rule in establishing February 8, 2005, as the date of her injuiy.
Fletcher’s Functional Impairment
Blue Valley claims the Board erred in relying on Prostic’s opinion that Fletcher suffered a 20% whole person functional impairment and thereby calculating that Fletcher suffered an 18.5% whole person functional impairment.
In examining this claim our task is to determine whether the Board’s decision is supported by substantial, competent evidence in light of the whole record or whether the Board’s decision is unreasonable, arbitrary, or capricious. See Kimbrough, 276 Kan. at 855. In doing so, we review the evidence in the light most favorable to the prevailing party and do not reweigh the evidence or assess the credibility of the witnesses. Neal v. Hy-Vee, 277 Kan. 1, 16-17, 81 P.3d 425 (2003).
Prostic’s initial opinion was that Fletcher suffered a 15% functional impairment to the body as a whole. He examined Fletcher again in July 2004 and, based on that examination, found that she suffered additional injury related to her work duties and that her functional impairment had increased to 20% of the body as a whole. Prostic based his opinion on the residuals of the cubital tunnel syndrome and carpal tunnel syndrome which Fletcher suffered after her surgery and the additional microtraumatic injuries she sustained up to the date of his last examination. Thus, there is substantial, competent evidence to support the Board’s reliance on Prostic’s opinion that Fletcher suffered a 20% functional impairment.
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Marquardt, J.:
Maurice Kimsey appeals the trial court’s summary denial of his motion to correct an illegal sentence. We vacate Kimsey’s sentence and remand with directions.
In May 1990, Kimsey was charged with one count of aggravated batteiy against a law enforcement officer, one count of aggravated burglary, one count of aggravated assault, one count of kidnapping, and one count of aggravated robbeiy. Kimsey and the State agreed to allow Kimsey to enter a no contest plea to the burglary, kidnapping, assault, and robbeiy charges. The State agreed to dismiss the charge of aggravated batteiy against a law enforcement officer and recommend a controlling sentence of 76 years to life plus 60 years.
Prior to the plea and sentencing, the State filed a motion to impose the Habitual Criminal Act (HCA). A hearing was held and the trial court accepted Kimsey’s plea. The trial court concluded that the HCA should apply and granted the State’s motion. Kimsey was sentenced to 10 to 40 years for aggravated burglary, 6 to 20 years for aggravated assault, 30 years to life for kidnapping, and 30 years to life for aggravated robbeiy. The sentences were ordered to run consecutively.
In March 2004, Kimsey filed a pro se motion claiming that his sentence is illegal because the trial court used an article 37 offense, the aggravated burglary charge, to enhance offenses listed in other chapters in the Kansas Criminal Code.
The State responded by claiming that Kimsey did not object to his criminal histoiy or the sentence enhancement at sentencing. The State urged the trial court to deny Kimsey’s motion, arguing that there was no substantial question of law or triable issue of fact. The trial court summarily dismissed Kimsey’s motion. Kimsey appeals.
On appeal, Kimsey claims that the trial court applied the use of the 1987 version of the HCA, as suggested by the State, even though his crimes were committed in 1990.
Standard of Review
The decision of whether to hold an evidentiary hearing on a motion to correct an illegal sentence is subject to an abuse of discretion standard of review. State v. Davis, 271 Kan. 892, 894, 26 P.3d 681 (2001). Whether a sentence is illegal is a question of law over which the appellate court’s review is unlimited. State v. Huff, 277 Kan. 195, 199, 83 P.3d 206 (2004).
Statute Governing the Crime
Kimsey claims that the trial court erred when it sentenced him pursuant to K.S.A. 1987 Supp. 21-4504(c). He argues that he should have been sentenced pursuant to K.S.A. 1989 Supp. 21-4504(c). Kimsey cites State v. Greever, 19 Kan. App. 2d 893, 878 P.2d 838 (1994), to support his position that an article 37 conviction can only be enhanced by prior crimes other than article 34, 35, or 36 crimes.
It is undisputed that Kimsey’s crimes occurred in May 1990. The criminal statutes and penalties in effect at the time of the criminal act are controlling. State v. Martin, 270 Kan. 603, 605, 17 P.3d 344 (2001).
The State’s motion to impose the HCA clearly shows that the State relied on K.S.A. 1987 Supp. 21-4504. The State concedes that Kimsey’s article 34 convictions cannot be used to enhance Kimsey’s article 37 conviction for aggravated burglary, and acknowledges that his sentence must be vacated and the case remanded for resentencing. We agree. Therefore, Kimsey’s sentence is vacated and the case is remanded to the trial court with directions to sentence Kimsey pursuant to K.S.A. 1989 Supp. 21-4504.
Convictions from Other Jurisdictions
Kimsey also argues on appeal that his sentence is illegal because K.S.A. 1989 Supp. 21-4504 did not authorize enhancement for prior convictions from other jurisdictions. Kimsey notes that K.S.A. 1989 Supp. 21-4504(a) allows enhancement for a second conviction of a chapter 21, article 34, 35, or 36 Kansas crime. Crimes from other jurisdictions are not mentioned. Kimsey notes that the K.S.A. 1990 Supp. 21-4504, enacted after his crimes were committed, allowed the use of comparable convictions from other states to be used when sentencing an individual who has been convicted in Kansas.
Kimsey’s prior convictions from other jurisdictions were aggravated robbeiy from McLennan County, Texas, and robbeiy by assault with firearms from Bexar County, Texas. Both of these crimes would seem to roughly compare to Kansas’ aggravated robbery statute, K.S.A. 21-3427. The crimes to which Kimsey pled no con test in this case were all article 34 offenses except for the aggravated burglary charge, which is codified at K.S.A. 21-3716.
Prior to the 1989 amendment to the statute, authenticated copies of foreign convictions could be used by the State to seek sentence enhancement pursuant to the HCA. See State v. Baker, 237 Kan. 54, 55, 697 P.2d 1267 (1985). In fact, a crime did not need to be a felony in Kansas so long as it was a felony under the laws of the foreign jurisdiction. State v. Crichton, 13 Kan. App. 2d 213, 216, 766 P.2d 832 (1988), rev. denied 244 Kan. 739 (1989).
K.S.A. 1989 Supp. 21-4504 clearly specifies that the felony conviction had to be listed in article 34, 35, or 36 of chapter 21 of Kansas Statutes Annotated. In 1990, the legislature added the following language: “after having previously been convicted of any such felony or comparable felony under the laws of another state, the federal government or a foreign government . . . .” L. 1990, ch. 100, sec. 4.
We are unable to find prior case law analyzing the meaning of the additional language which was added to the statute in 1990. Generally, the fundamental rule of statutory construction is to ascertain the legislature’s intent. 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. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
We believe the language added in 1990 is significant. When the legislature revises a law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 88-89, 106 P.3d 492 (2005). Keeping this in mind, the 1990 amendment has no effect unless the 1989 version of the statute meant to only allow enhancement if the prior convictions were for violations of the Kansas Statutes Annotated; in other words, convictions from this jurisdiction only.
Under K.S.A. 1989 Supp. 21-4504, Kimsey s sentence could not be enhanced by convictions from other jurisdictions. Therefore, the trial court erred by enhancing Kimsey’s sentence. Since Kimsey’s sentence is vacated on issue 1, the trial court, when resentencing Kimsey, should not enhance his sentence because of his convictions from another jurisdiction.
Kimsey’s sentence is vacated; we remand this case to the trial court with directions consistent with this opinion. | [
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Knudson, J.:
In this workers compensation proceeding, John W. Higgins (claimant) appeals from the order of the Workers Compensation Board (Board) and its determination that postaward expert witness fees are not to be awarded to claimant as costs under K.S.A. 2006 Supp. 44-5l0k(c). The issue presented is one of first impression.
The controlling facts are not in dispute. Claimant is receiving a compensation award after sustaining a work-related back injury. Subsequendy, his back became worse and he made application for postaward medical treatment. Evidentiary depositions were taken from two physicians to support claimant’s need for additional treatment. At hearing, the administrative law judge (ALJ) granted claimant’s application but would not award expert witness fees as costs. On appeal, the Board upheld the decision of the ALJ. The Board, with one dissent, interpreted K.S.A. 2006 Supp. 44-510k(c) to allow only traditional in-court statutory witness fees as costs, not fees charged by physicians for giving deposition testimony. The dissent would have allowed the award, reasoning that “if the cost of retaining an expert to testify on [claimant’s] behalf is not considered a recoverable expense, it may deter a claimant from requesting additional medical benefits.”
We affirm the decision of the Board under the doctrine of operative construction. See Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546(2004).
K.S.A. 2006 Supp. 44-510k(c) states:
“The administrative law judge may award attorney fees and costs on the claimant’s behalf consistent with subsection (g) of K.S.A. 44-536 and amendments thereto. As used in this subsection, ‘costs’ include, but are not limited to, witness fees, mileage allowances, any costs associated with reproduction of documents that become a part of the hearing record, the expense of making a record of the hearing and such other charges as are by statute authorized to be taxed as costs.” (Emphasis added.)
K.S.A. 44-536(g) adds nothing to our analysis as it concerns only an award of attorney fees, not costs.
Standard of Review
The interpretation of statutory provisions in the Workers Compensation Act is a question of law. Under the doctrine of operative construction, the Board’s interpretation of the law is entitled to judicial deference. If there is a rational basis for the Board’s interpretation, it should be upheld upon judicial review. However, the Board’s determination on questions of law is not conclusive and, though persuasive, is not binding on a court. The party challenging the Board’s interpretation bears the burden of proving its invalidity. Foos, 277 Kan at 692-93.
Discussion
In its order, the Board stated that the plain and unambiguous language of K.S.A. 2006 Supp. 44-510k(c) precludes an award for an expert’s deposition fee. In doing so, the Board noted it has repeatedly addressed this issue in earlier workers compensation proceedings and has consistently ruled against recovery of such fees. It appears from those earlier proceedings that the Board relied primarily on our decision in Grant v. Chappell, 22 Kan. App. 2d 398, 916 P.2d 723, rev. denied 260 Kan. 992 (1996).
In Grant, the plaintiff brought an action to recover for injuries suffered in an auto accident. After a jury found the defendant at fault, the plaintiff sought a further award to cover the costs of the testimony of her two treating physicians. The Grant court held: “The fee of an expert witness may not be charged to the losing party unless specifically authorized by statute. See Divine v. Groshong, 235 Kan. 127, 679 P.2d 700 (1984).” 22 Kan. App. 2d at 399. The Grant court further found that under K.S.A. 28-125 and K.S.A. 60-2003, “witness fees” meant the statutory fee of $10 per day provided for all witnesses who testify, not the fees charged by expert witnesses. 22 Kan. App. 2d at 400.
In Divine, the defendants filed an offer of judgment under K.S.A. 60-2002(b) that was not accepted by the plaintiff. Subsequently, the plaintiffs judgment was less favorable than the offer that had been made. The defendants sought to recover as costs all trial expenses after the offer was made. Those expenses included paralegal time, attorney fees, deposition expenses, phone calls, expert witness fees, and the like. The district court disallowed those items, and the defendants cross-appealed. In denying relief, our Supreme Court held: “The term ‘costs’ ordinarily means the fees and charges of the court — filing fees, fees for service of process and the like. K.S.A. 60-2002 does not provide for the payment of all of the expenses incurred by the opposing party after the making of the offer. The statute uses the term ‘costs,’ and the trial court allowed all items properly taxable as costs.” 235 Kan. at 141.
We also note K.S.A. 60-2003 states that items allowed as costs in civil proceedings include “statutory fees and mileage of witnesses attending court or the taking of depositions used as evidence.” K.S.A. 60-2003 does not provide for including expert witness fees as an allowable item.
The Board’s reliance on proceedings under Chapter 60 is understandable. K.S.A. 44-553 specifically provides for witness fees and states: “Each witness who appears before the director or [ALJ] in response to a subpoena shall receive the same fee and mileage as is provided for witnesses attending district court in civil cases in this state.” There is no statutory suggestion the fee charges of experts to secure their testimony should be treated as cost or witness fees.
Review of several other statutes indicates that when the legislature intends to vest a judge or administrative tribunal with discretion to award expert witness fees, it makes an explicit authorization of authority that belies the notion “witness fees” is all-inclusive. See, e.g., K.S.A. 2006 Supp. 16-1305 (specifically authorizing the “actual costs of the action, including attorney, paralegal, and expert witness fees”); K.S.A. 49-426(d) (“The court . . . may award costs of litigation, including attorney and expert witness fees to any party.”); K.S.A. 2006 Supp. 75-5672(c) (“All moneys credited to the [natural resources damages trust] fund shall be used to pay the cost of: . . . (5) legal costs, including expert witness fees, incurred in the recovery of the expenditures.”) (Emphasis added.)
The above survey of case and statutory law supports a conclusion that the Board’s interpretation of K.S.A. 2006 Supp. 44-510k(c) is reasonable and conforms with legislative intent.
The claimant argues the only witnesses realistically employed in a workers compensation case are experts. Thus it is illogical to exclude expert fees as a matter of law from an award under 44-510k(c). We agree that physicians are the primary witnesses in a postaward proceeding to obtain medical treatment or other medical benefits. However, the claimant may also present the testimony of others to support the application, i.e., family members, supervisors, coworkers, and other acquaintances.
The claimant’s most persuasive argument for a more inclusive interpretation of 44-510k(c) is that most professional experts do charge substantial deposition fees for their time and expertise and will be less than cooperative if subpoenaed to testify in open court. Thus a claimant is compelled to pay the doctor’s fees to procure his or her deposition testimony. Substantial expert witness fees may deter a claimant from proceeding with a postaward claim for needed medical treatment. However, there is obviously another side to this argument. If an employer could be assessed expert witness fees in addition to the claimant’s attorney fees, the employer might similarly be deterred from an otherwise reasonable defense to an employee’s application for additional medical treatment. Moreover, the claimant has to acknowledge the decision to award attorney fees and other costs under 44-510k(c) is discretionaiy. Consequently, even if we accepted the claimant’s reasoning, there still would be no assurance of reimbursement for expert deposition fees, which could be a deterrent in and of itself. The issue is one of public policy for the legislature to consider, not the court in the face of an unambiguous statute.
We have considered all of the claimant’s arguments and find them insufficient to reverse the decision of the Board. The legislature has consistently recognized a distinction between expert witness fees and witness fees in various statutes as we have noted in this opinion. Consequently, it would be unreasonable to adopt the claimant’s interpretation of 44-510k(c) that would repudiate the will of the legislature. The consistency of treatment in various leg islative enactments makes clear 44-510k(c) is unambiguous and does not provide for an award of costs for expert witness fees. We hold there is a rational basis for the Board’s interpretation of K.S.A. 2006 Supp. 44-510k(c), and its award will not be disturbed on appeal.
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Johnson, J.:
William A. White, Anthony W. Loreg, Joseph W. Shaver, Mitchell L. Koemer, Rebecca Holloway, Eric Patrick Mortensen, Justin Miles McDonald, John Wickham, Marc A. Hudson, and Christopher John Hann (collectively referred to as the appellants) appeal the district court’s dismissal of their petitions for judicial review of their driver’s license suspensions through the agency action of the Kansas Department of Revenue (KDR). We affirm.
All of the suspensions followed arrests for driving under the influence. (DUI). Each appellant requested and received an administrative hearing, after which KDR issued an administrative order affirming the driver’s license suspension for each appellant. Each appellant then filed a petition for judicial review with the district court. In each case, KDR moved to dismiss the petition, claiming that it did not contain the information required by K.S.A. 77-614(b).
The district court consolidated the cases for the purpose of considering KDR’s dismissal motions and ordered the parties to brief the issues. Ultimately, the district court granted the motions, filing its dismissal order on February 1, 2005, in which the court “[adopted] as its own the suggested findings of fact and conclusions of law set forth in KDR’s brief.” The dismissal order also recited:
“This follows the decision of Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37 (2001), in which the court held that the required elements of K.S.A. 77-614(b) are jurisdictional, and which rejected the prior decisions of University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354 (1995) and Karns v. Kansas Bd. of Agriculture, 22 Kan. App. 2d 739 (1996).”
At the appellants’ requests, the district court consolidated the cases to appeal the dismissals. In the consolidated appeal, appellants make two arguments, which we will rephrase as follows: (1) in finding that strict compliance with the pleading requirements of K.S.A. 77-614 is jurisdictional, the district court misapplied the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 etseq., and corresponding cases and failed to consider that their agency appeal was subject to a de novo review; and (2) the appellants’ petitions satisfied the requirements of K.S.A. 77-614.
STANDARD OF REVIEW
To the extent that we must interpret the KJRA or other statutes, our review is unlimited. Pittsburg State University v. Kansas Bd. of Regents, 30 Kan. App. 2d 37, 39, 36 P.3d 853 (2001), rev. denied 273 Kan. 1036 (2002). Likewise, the existence of jurisdiction is a question of law, subject to unlimited review. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
STRICT COMPLIANCE WITH KS.A. 77-614
Pursuant to K.S.A. 8-259(a), the appellants’ driver’s license suspensions were “subject to review.” Accordingly, the district court had statutoiy authority to acquire subject matter jurisdiction of these cases. Two statements in K.S.A. 8-259(a) are particularly germane to this appeal: (1) “Such review shall be in accordance with the act for judicial review and civil enforcement of agency actions [KJRA].”; and (2) “The action for review shall be by trial de novo to the court.”
KDR focuses on K.S.A. 8-259’s incorporation of the KJRA and that Act’s specific requirements for commencement of review, contained in K.S.A. 77-614(b), which provides:
“(b) A petition for judicial review shall set forth:
(1) The name and mailing address of the petitioner;
(2) the name and mailing address of the agency whose action is at issue;
(3) identification of the agency action at issue, together with a duplicate copy, summary or brief description of the agency action;
(4) identification of persons who were parties in any adjudicative proceedings that led to the agency action;
(5) facts to demonstrate that the petitioner is entitled to obtain judicial review;
(6) the petitioner’s reasons for believing that relief should be granted; and
(7) a request for relief, specifying the type and extent of relief requested.”
KDR contends the appellants’ petitions did not set forth all of the information required by the KJRA and, therefore, did not invoke the jurisdiction of the district court. KDR relies on this court’s prior holding in Pittsburg State University, which concluded: “A petition for judicial review of an agency action is jurisdictional. Failure to comply with the pleading requirements set forth in K.S.A. 77-614(b) precludes a litigant’s statutorily granted right of appeal.” 30 Kan. App. 2d 37, Syl. ¶ 3.
In reaching its decision, the Pittsburg State University court rejected the previous holding of University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, 357, 887 P.2d 1147 (1995), that the specific pleading requirements of K.S.A. 77-614(b) are not jurisdictional so long as the petition provides appropriate notice of what is being appealed. Pittsburg State University noted that the University of Kansas opinion was criticized by then Chief Judge Brazil in his concurring opinion to Karns v. Kansas Bd. of Agriculture, 22 Kan. App. 2d 739, 750, 923 P.2d 78 (1996), where he stated:
“In forming its holding, the University of Kansas v. Department of [Human] Resources court noted that there are no Kansas cases which address this issue. The court then analogized cases under Chapter 60 which indicate that a failure to plead with specificity is not considered a jurisdictional defect. The inherent problem with such an analogy, however, is that the very issue involved is whether, pursuant to the KJRA’s directive, administrative agency actions are to employ the same pleading procedures as general civil cases.”
Additionally, the Pittsburg State University opinion quoted from Professor Ryan’s analysis in The New Kansas Administrative Procedure and Judicial Review Acts, 54 J.K.B.A. 53, 67 (1985):
“ ‘Obviously, the KJRA contemplates a petition that goes beyond the simple “notice” petition which was conceptually the cornerstone of the new Code of Civil Procedure a few decades ago in this state. The reason is quite simple. By having a universal remedy that is universally available under one form of action no matter what type of agency action is challenged, the petition itself becomes significant in terms of identifying the type of agency action challenged. It is important to know whether the agency action is basically a rule challenge or is appeal of a specific order. One reason is critical. The timeliness for filing the different types are significantly different .... In addition, because the remedies under K.S.A. 77-622 constitute the broad range of all remedies conceptually available, then the land of agency action complained of need be identified as well as the kind of relief requested. In other words, specificity in pleading is necessary to provide a more manageable framework for processing the petition within this “universal” appeal structure.’ [Citation omitted.]” 30 Kan. App. 2d at 45.
Appellants attempt to distinguish Pittsburg State University based upon the applicable standard of review. They point out that in the more typical KJRA case, such as Pittsburg State University, the court is reviewing the record of the agency action utilizing a substantial competent evidence standard. In contrast, K.S.A. 8-259(a) specifically provides for a trial de novo of a driver’s license suspension, and diere is typically no transcript of the administrative hearing.
Appellants characterize the K.S.A. 8-259 trial de novo review as starting over except for the possible restriction of being limited to the issues raised at the administrative hearing. As such, the parties will conduct discovery, file motions, and perhaps have a pretrial order. In other words, the proceeding is more akin to an original civil proceeding. Therefore, they contend that Professor Ryan’s explanation for the necessity of requiring specificity in the review petition does not apply to a trial de novo. Appellants suggest that a petition for review which clearly gives notice to the proper parties of the issues being appealed should be sufficient, apparently intimating that the liberal notice pleading provisions of the Code of Civil Procedure should govern a petition for judicial review pursuant to K.S.A. 8-259.
Appellants’ arguments have some practical appeal. As they point out, the KDR was apparently able to participate in huge numbers of driver’s license suspension judicial review proceedings before it decided to challenge the specificity of these petitions. Further, some of the agency’s challenges appear hypertechnical, at best, and devoid of any prejudice to the agency. Nevertheless, our function is simply to construe the applicable statutes, using the familiar rules:
“The fundamental rule of statutory construction to which all odier rules are subordinate is that the intent of the legislature governs if that intent can be ascertained. The legislature is presumed to have expressed its intent through the language of the statutory scheme it enacted. When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. [Citation omitted.]” Williamson v. City of Hays, 275 Kan. 300, 305, 64 P.3d 364 (2003).
Plainly, K.S.A. 8-259(a) says that a judicial review of a driver’s license suspension is to be in accordance with the KJRA. The statute does not excise that portion of the KJRA which specifies the content of the petition for review. Just as plainly, the KJRA says that the petition for review “shall” contain certain specific information. K.S.A. 77-614(b). That provision makes no distinction based upon the applicable standard of review and does not exempt trials de novo from the specific pleading requirements. Appellants would have us rewrite the statutes. However, “a statute should not be so read as to add that which is not readily found therein or to read out what as a matter of ordinary English language is in it. [Citation omitted.]” GT, Kansas, L.L.C. v. Riley County Register of Deeds, 271 Kan. 311, 316, 22 P.3d 600 (2001).
We perceive that the only way in which we could find that strict compliance with K.S.A. 77-614(b) is not required would be to reject the Pittsburg State University holding in favor of the previous holding in University of Kansas. However, we perceive our Supreme Court’s decision in Pieren-Abbott v. Kansas Dept. of Revenue, 279 Kan. 83, 106 P.3d 492 (2005), suggests that it would concur that strict compliance with K.S.A. 77-614(b) is necessary.
Pieren-Abbott also involved a review of a driver’s license suspension, although it applied the provisions of K.S.A. 8-259 and K.S.A. 8-1020(o) in the context of service of process upon the Secretary of Revenue. The opinion mentioned that Pittsburg State University had rejected the notice pleading standard applied in University of Kansas. It noted that one commentator had criticized the University of Kansas decision, arguing that the KJRA applies a more stringent standard than the Code of Civil Procedure. Pieren-Abbott then proceeded to adopt another aspect of the Pitts-burg State University opinion when it held “that the Code of Civil Procedure may be used by the district court to supplement the KJRA if the provision is a logical necessity that is not addressed within the KJRA.” 279 Kan. at 97.
Pieren-Abbott did not specifically say that it approved of that portion of the holding in Pittsburg State University which found that compliance with the specific pleading requirements of K.S.A. 77-614(b) is jurisdictional. However, the opinion clearly stands for the proposition that the provisions of the Code of Civil Procedure cannot trump a specific provision of the KJRA. Given that the KJRA specifies the required content of a petition for review, the liberal pleading provisions of the Code of Civil Procedure simply do not come into play. Accordingly, we apply the holding in Pitts-burg State University to find that the appellants were required to strictly comply with pleading requirements of K.S.A. 77-614(b) in order to invoke the jurisdiction of the district court.
Before proceeding to the second issue, we pause to acknowledge appellants’ lengthy discussion of Cross v. Kansas Dept. of Revenue, 279 Kan. 501, 110 P.3d 438 (2005). Basically, Cross held that the evidentiary restrictions placed upon a licensee at the administrative hearing do not violate due process, because a licensee can obtain a trial de novo that provides a full and complete opportunity to be heard, during which the licensee will retain his or her driving privileges. Appellants contend that this unique aspect of driver’s license suspension proceedings corroborates its argument that the K.S.A. 8-259 petition for judicial review upon a trial de novo should be governed by a notice pleading standard. Simply put, the Cross holding does not change our analysis.
COMPLIANCE WITH KS.A. 77-614(b)
Alternatively, appellants argue that their petitions for review did strictly comply with the pleading requirements of K.S.A. 77-614(b). The parties do not dispute tire applicable facts, resulting in a legal question turning upon statutory interpretation. Our review is unlimited. See Pittsburg State University, 30 Kan. App. 2d at 39.
Appellants’ brief reviews the seven sub-paragraphs of K.S.A. 77-614(b), explaining why their petitions strictly complied with each requirement. However, the appellants trip over the first hurdle. K.S.A. 77-614(b)(l) requires that the petition shall set forth the name and mailing address of the petitioner. Appellants do not dispute that none of their petitions contained the petitioner’s mailing address.
Appellants point out that the petitions included their attorney’s address and indicated that the agency was to serve its answer upon the attorney. In arguing that this information was compliant, appellants return to their theme that the proceeding is a trial de novo which is more akin to a civil action than a typical review of agency action. Therefore, they argue for the application of the rules of civil procedure which require pleadings and correspondence to be directed to the plaintiff s attorney and not directly to the plaintiff.
As clarified in Pieren-Abbott, the rules of civil procedure can supplement the KJRA where necessary to fill in the gaps, but the Code of Civil Procedure cannot alter or override express provisions of the KJRA. 279 Kan. at 96-97. The KJRA contains an express provision for service of pleadings not found in the Code of Civil Procedure. K.S.A. 77-613(e) mandates that “[s]ervice of an order, pleading or other matter shall be made upon the parties to the agency proceeding and their attorneys of record, if any . . . .” (Emphasis added.) Thus, the inclusion of petitioner’s mailing address in the petition for judicial review serves a specific purpose in a KJRA proceeding which is not present in an action governed by the Code of Civil Procedure.
In Reifschneider v. Kansas State Lottery, 266 Kan. 338, 342, 969 P.2d 875 (1998), our Supreme Court found that an administrative order sent to the complaining party’s attorney, but not to the com plaining party, did not strictly comply with K.S.A. 77-613(e). Therefore, appellants’ direction to the KDR to serve its pleading only upon petitioners’ attorney was an invitation for the agency to violate its duty under the KJRA.
Therefore, we find that the failure to include each petitioner’s mailing address in the respective petition for judicial review was a critical omission, prejudicial to the KDR. The petitions did not strictly comply with die requirements of K.S.A. 77-614(b)(l) and, therefore, the petitioners did not invoke the jurisdiction of the district court to judicially review the agency action.
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Buser, J.:
In this uninsured motorist case, Farmers Insurance Company, Inc., (Farmers) appeals a judgment in favor of its insured, Craig Russell. Because the automobile insurance policy issued by Farmers did not provide coverage for Russell’s accident, we reverse and remand with directions to the district court to enter judgment in favor of Farmers.
Factual and Procedural Background
On March 30, 2002, Russell was injured when he tripped and fell outside a grocery store in Lenexa, Kansas. He reported the accident to Farmers 2 months later on May 31, 2002, claiming he was injured while avoiding a vehicle driven by an unidentified motorist.
The automobile insurance policy issued by Farmers to Russell provided coverage for injuries negligently caused by the operator of an uninsured motor vehicle, defined to include “[a] hit-and-run vehicle whose operator or owner has not been identified and which causes bodily injury with or without physical contact.” The policy further provided that “[i]f there is no physical contact, the facts of the accident must be verified by someone other than you or another person having a claim from the same accident.”
Russell and his counsel initially advised Farmers that disinterested witnesses existed. Following an investigation, Farmers denied Russell’s claim without mentioning the disinterested witness issue, but reserved its rights under the policy while not waiving any rights, defenses, or contentions. In December 2003, Russell provided an interrogatory response to Farmers indicating that no witness to the accident was “known at this time.” Subsequently, Russell propounded an interrogatory which sought information from Farmers regarding “all defenses . . . which you claim to plaintiffs Petition.” Farmers responded that “its investigation failed to uncover any independent witness to verify the facts of the accident as required by the policy.”
During his deposition on August 26, 2004, Russell testified that he had not identified a disinterested witness, and Farmers moved for summary judgment on this basis a few weeks later. The trial court denied Farmers’ motion, however, finding Farmers had
"failed to notify plaintiff Craig Russell of its policy defense that he failed to comply with the particular policy condition/requirement that . . . the facts of the accident must be verified by someone other than [Russell] ... at a time when defendant Farmers Insurance Company had knowledge of plaintiff Craig Russell’s failure to comply with the particular policy condition/requirement.”
The case proceeded to trial, and the jury returned a verdict in favor of Russell. Farmers appeals.
Discussion
On appeal, Farmers bases its challenge to the summary judgment ruling on the language of the policy. Farmers maintains the accident was not covered because no disinterested witness was produced. Russell counters that Farmers has waived any such defense.
The parties agree this is a question of law reviewed de novo. See Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006) (statutory construction); Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004) (summary judgment on undisputed facts); Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002) (interpretation of written instruments); Connelly v. Kansas Highway Patrol, 271 Kan. 944, 958, 26 P.3d 1246 (2001), cert. denied 534 U.S. 1081 (2002) (waiver of defense on stipulated facts).
The central issue for our review is the nature of the policy’s disinterested witness provision — whether it was a contractual condition for payment on a covered occurrence, or whether it limited or excluded coverage in the first instance. The distinction is critical because an insured’s failure to comply with a policy condition may be waived, but generally waiver and estoppel will not expand a policy’s coverage. See Unruh v. Prudential Prop. and Cas. Ins. Co., 43 F. Supp. 2d 1237, 1239-40 (D. Kan. 1999) (applying Kansas law); AKS v. Southgate Trust Co., 844 F. Supp. 650, 659 (D. Kan. 1994) (same); Allied Mut. Ins. Co. v. Moeder, 30 Kan. App. 2d 729, Syl. ¶ 6, 48 P.3d 1 (2002); Hillman v. Colonial Penn Ins. Co., 19 Kan. App. 2d 375, 377, 869 P.2d 248, rev. denied 255 Kan. 1001 (1994).
Our Supreme Court has applied estoppel to expand coverage in one case, but it did so based on an insurer’s affirmative representations and actions regarding coverage where the policy did not explicitly exclude the incident at issue. See Heinson v. Porter, 244 Kan. 667, 673, 772 P.2d 778 (1989), overruled on other grounds Glenn v. Fleming, 247 Kan. 296, Syl. ¶ 5, 799 P.2d 79 (1990). This precedent is easily distinguishable from the present case, which concerns a failure to identify lack of coverage in an initial (and provisional) denial of claim letter where the insurance policy’s provisions specifically contemplated exclusion of the incident at issue.
An example of a policy condition that may be waived is found in Pacific Indemnity Co. v. Berge, 205 Kan. 755, 473 P.2d 48 (1970), which the trial court held was controlling precedent in the present case. The insured in Pacific Indemnity Co. “failed to file proof of loss within sixty days ... as required by the provisions of the insurance policy.” 205 Kan. at 767. Because the insurer failed to mention this in its denial of claim letter, our Supreme Court held the insurer had waived the defense. 205 Kan. at 767-68. “Where an insurer bases its refusal to pay a loss upon a . . . failure to comply with particular condition it cannot thereafter maintain a defense based upon another condition not referred to in such refusal to pay and of which it then had knowledge. [Citations omitted.]” 205 Kan. at 767-68.
An example of an exclusion or limitation of coverage that may not be waived is found in Topeka Tent & Awning Co. v. Glen Falls Ins. Co., 13 Kan. App. 2d 553, 774 P.2d 984, rev. denied 245 Kan. 788 (1989), precedent which the trial court held was inapplicable to the present case. The insured in Topeka Tent & Awning Co. made a claim regarding a racial discrimination suit in spite of “an endorsement . . . which excluded coverage for liability arising from discrimination suffered by employees of the insured.” 13 Kan. App. 2d at 554. Our court rejected the insured’s estoppel argument because the policy excluded from coverage the very occurrence for which the insured sought payment. 13 Kan. App. 2d at 555-56. As we stated in another case, “[t]here is no forfeiture of coverage being effected; the insured was never protected for the circumstances which took place.” Western Food Prod. Co. v. United States Fire Ins. Co., 10 Kan. App. 2d 375, 381, 699 P.2d 579 (1985).
The distinction between policy conditions that may be waived and exclusions or limitations of coverage that may not was demonstrated in a federal case applying Kansas law, Hennes Erecting Co. v. Nat. Un. Fire Ins. Co., 813 F.2d 1074, 1078 (10th Cir. 1987). The insured in Hennes Erecting Co. argued the insurer “had waived its right to rely upon any exclusion in the policy because such exclusion was not mentioned when [insurer] rejected [insured’s] claim.” 813 F.2d at 1078. The Tenth Circuit Court of Appeals disagreed, distinguishing cases such as Pacific Indemnity Co. which “establish that an insurer, basing a refusal to pay a loss entirely on one ground of forfeiture, could not then maintain a de fense of forfeiture based [on] the violation of another policy provision.” 813 F.2d at 1079-80. In the case before it, the insurer had
“not claimed a forfeiture of the policy by [insured.] Rather, [insurer] contended that . . . the loss was beyond the coverage of the policy . . . .While timely and complete disclosure of the reasons for denying a claim would certainly have been preferable, waiver . . . cannot be used in these circumstances to increase the insurer’s risk beyond the terms of the policy.” 813 F.2d at 1080.
We believe the nature and purpose of the disinterested witness provision in the present case is controlled by a statute both parties cite, K.S.A. 40-284. This statute was enacted in 1968 to provide coverage to those harmed by uninsured motorists. See Clements v. United States Fidelity & Guaranty Co., 243 Kan. 124, 126, 753 P.2d 1274 (1988). Its provisions “are mandatory insofar as they stipulate what insurance policies in this state must contain. The provisions of the statute are to be considered a part of every automobile policy in this state. [Citation omitted.]” State Farm Mut. Auto Ins. Co. v. Cummings, 13 Kan. App. 2d 630, 632-33, 778 P.2d 370, rev. denied 245 Kan. 786 (1989). An automobile policy is controlling only “to the extent that it does not conflict with or attempt to diminish or omit the statutorily mandated coverage.” 13 Kan. App. 2d at 633.
As originally enacted, K.S.A. 40-284 “did not contain any authorization for exclusion or limitation of coverage for cases in which the uninsured vehicle was unidentified: so-called ‘phantom vehicle’ cases.” Clements, 243 Kan. at 126. Some insurance companies attempted to limit coverage in unidentified motorist cases, but our Supreme Court held in Simpson v. Farmers Ins. Co., 225 Kan. 508, 515, 592 P.2d 445 (1979), that the limitations were “contrary to the public policy and legislative intent of . . . K.S.A. 40-284, and therefore, void and unenforceable.” Clements, 243 Kan. at 126.
“[I]n response to the decision in Simpson,” the legislature in 1981 amended K.S.A. 40-284 to authorize certain exclusions or limitations of coverage. Clements, 243 Kan. at 126; L. 1981, ch. 191, sec. 1. As currently codified, this list of instances when an “insurer may provide for the exclusion or limitation of coverage” is found at K.S.A. 40-284(e). The parties agree the disinterested witness provision in Farmers’ automobile insurance policy is based on K.S.A. 40-284(e)(3).
K.S.A. 40-284(e)(3) permits an exclusion or limitation “when there is no physical contact with the uninsured motor vehicle and when there is no rehable competent evidence to prove the facts of the accident from a disinterested witness not making claim under the policy.” K.S.A. 40-284(e)(3). Significantly, our Supreme Court has characterized this subsection as a circumstance in which insurers “may exclude coverage.” Cannon v. Farmers Ins. Co., 274 Kan. 166, 170, 50 P.3d 48 (2002).
Considering the statutory language and history of K.S.A. 40-284 and the case law interpreting it, we hold the disinterested witness provision in Farmers’ automobile insurance policy was an exclusion or limitation of coverage. Russell, therefore, was not covered for noncontact accidents caused by negligent unidentified drivers in the absence of evidence from a disinterested witness. See Lyons Federal S&L v. St. Paul Fire and Marine Ins., 863 F. Supp. 1441, 1446 (D. Kan. 1994) (exclusions limit coverage created by insuring clauses).
Russell separately argues in passing that Farmers failed to raise the disinterested witness defense in its answer, but Farmers denied the assertion below and the trial court did not address the issue. The trial court confined its ruling solely to Farmers’ denial of claim letter, not the pleadings and the rules of civil procedure. The parties brief this appeal in the same fashion. We decline to consider this procedural question because it has not been squarely presented for our review. See Crawford v. Board of Johnson County Comm’rs, 13 Kan. App. 2d 592, 594, 776 P.2d 832 (1989) (a passing reference does not raise an issue on appeal).
Russell also contends that Farmers was not prejudiced by the summary judgment ruling because at trial Farmers’ counsel effectively admitted the existence of an unidentified motorist. Of course, had the trial court granted summary judgment to Farmers, there would have been no trial. In essence, Russell contends Farmers’ admission at trial rendered the disinterested witness provision inapplicable.
Russell points to the purpose of the provision, which is to prevent fraud. See Clements, 243 Kan. at 127. As our Supreme Court has noted, “[i]n a one-vehicle accident with no witnesses, an insurance carrier has no way to refute the insured’s statement that he or she swerved to avoid an on-coming vehicle.” Cannon, 274 Kan. at 176. Russell suggests fraud is not at issue given Farmers’ admission at trial. The problem described in Cannon, however, is present not only where — as in the present case — an alleged oncoming vehicle may not have existed, but also where the unidentified vehicle may have existed, yet posed no threat to the insured.
In the present case, Russell exited the grocery store about 6 p.m. on a Saturday evening. He testified the store was so busy the nearest parking areas were full and that he parked “clear over here to walk in.” The risk of fraud in such a situation would naturally include misrepresentations regarding the threat posed by any of the numerous vehicles moving in the vicinity of the insured.
The threat posed to Russell was the central issue at trial. Russell testified that he fell while hurriedly stepping backward to avoid the speeding unidentified motorist. Farmers argued Russell had simply missed his step and that the unidentified motorist could not have sped through the area where Russell fell. Russell’s counsel understood this challenge to his client’s testimony at trial, arguing in closing that Farmers “doesn’t want to call [Russell] a liar, but, essentially, Farmers is calling him a bar.”
The plain language of K.S.A. 40-284(e)(3) appbed in this case, and that language presumptively expressed the legislature’s intent. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Farmer’s concession at trial was limited to the existence of an unidentified driver, not to an admission the driver was driving in a manner which posed a threat to Russell. In any case, Farmers’ concession at trial did not nullify the statutory language of K.S.A. 40-284(e)(3) or the Farmers’ pobcy provision based upon it.
Finally, Farmers also claims the juiy’s verdict was not supported by the evidence. Given our ruling this issue is moot. The trial court’s denial of Farmer’s summary judgment motion is reversed, and the case is remanded for entry of judgment in favor of Farmers.
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Buser, J.:
The State of Kansas ex rel. Phill Kline (now Paul J. Morrison), Attorney General (State), appeals the dismissal of its claims under the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., against Transmasters Towing and its owner Kevin Raasch (Transmasters). The district court held the KCPA claims were preempted by the Interstate Commerce Commission Termination Act (ICCTA), 49 U.S.C. § 14501(c)(1) (2000). We affirm in part, reverse in part, and remand for further proceedings.
Factual and Procedural Background
In 2005, the State alleged that Transmasters committed multiple violations of the KCPA against 10 individual consumers. The State pled generally that Transmasters frequently obtained towing jobs under a “random assignment of government and Kansas turnpike authorities, by use of a rotation schedule” and that Transmasters had “towed vehicles in the State of Kansas without first obtaining the permission of those towed.” The State then pled as to each individual consumer the circumstances requiring the tows, the acts alleged to be deceptive or unconscionable under the KCPA, and the facts indicating a lack of consent to the towings.
Among the acts alleged to have been deceptive or unconscionable were: charging excessive prices for towing and storage, raising prices after a customer’s complaint, misrepresenting toll road pol icies, refusing to tow anywhere other than Transmasters’ storage facility, and preventing access to personal belongings in stored vehicles. These acts were said to have violated K.S.A. 50-626(b)(9), K.S.A. 50-627(a), and K.S.A. 50-627(b)(l), (2), and (5). The State requested a declaratory judgment that Transmasters had violated the KCPA, injunctive relief, actual damages, and civil penalties.
Transmasters moved to dismiss, contending that “all claims brought by [the State] under the [KCPA] that are related to the [prices], routes, or services of a tow truck operator are specifically preempted by federal law.” Transmasters did not identify any claims not related to its prices, routes, or services.
In 2006, the district court dismissed the State’s claims, holding the “claims brought by [the State] . . . are specifically preempted by the federal Interstate Commerce Commission Termination Act (the 1CCTA’),” and that an “exception for state regulation of non-consensual tow [prices]” did not apply because “the KCPA sets no maximum price for nonconsensual tows and cannot otherwise be used to guide or police the price, route or service of [Transmasters].”
The State appeals.
Are the Kansas Consumer Protection Act Claims Preempted By the Interstate Commerce Commission Termination Act?
The question presented on appeal is whether the State’s KCPA claims are preempted by the ICCTA. “This issue involves questions of statutory interpretation as well as preemption, both questions of law over which [an appellate] court exercises de novo review. [Citation omitted.]” Doty v. Frontier Communications, Inc., 272 Kan. 880, 888, 36 P.3d 250 (2001).
Under the Supremacy Clause of the United States Constitution, “the Laws of the United States . . . shall be the supreme Law of the Land . . . , any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. A state law which conflicts with federal law is unenforceable. In re Tax Appeal of Karsten, 22 Kan. App. 2d 882, 886, 924 P.2d 1272 (1996). Because “ ‘[t]he purpose of Congress is the ultimate touchstone’ in every pre-emption case,” analysis of a federal statute “must be gin with its text,” including the “ 'structure and purpose of the statute as a whole.’ ” Medtronic, Inc. v. Lohr, 518 U.S. 470, 484-86, 135 L. Ed. 2d 700, 116 S. Ct. 2240 (1996) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 11 L. Ed. 2d 179, 84 S. Ct. 219 [1963], and Gade v. National Solid Wastes Management Assn., 505 U.S. 88, 96, 98, 120 L. Ed. 2d 73, 112 S. Ct. 2374 [1992]).
The ICCTA contains an express preemption clause: “Except as provided in paragraphs (2) and (3), a State . . . may not enact or enforce a law . . . related to a price, route, or service of any motor carrier.” (Emphasis added.) 49 U.S.C. § 14501(c)(1) (2000); see also Doty, 272 Kan. at 888-89 (reviewing types of preemption). An express preemption clause makes “the courts’ task ... an easy one.” English v. General Electric Co., 496 U.S. 72, 79, 110 L. Ed. 2d 65, 110 S. Ct. 2270 (1990). The plain language of the ICCTA’s express preemption clause prohibits the State from bringing KCPA claims related to Transmasters’ price, route, or service unless one of the statutory exceptions is applicable. On appeal, the State concedes this point.
The State contends, however, that one preemption exception is applicable: 49 U.S.C. § 14501(c)(2)(C) (2000), which provides in part:
“(2) MATTERS NOT COVERED. — Paragraph (1)—
“(C) does not apply to the authority of a State ... to enact or enforce a law . . . relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle.” (Emphasis added.)
This price preemption exception was added to the ICCTA in 1995 “to allow States and local governments to regulate the price of tows in non-consent cases.” H. Conf. R. No. 104-422, 104th Cong., 1st Sess., at 219 (1995), reprinted in 1995 U.S.C.C.A.N. 793, 904.
On appeal, Transmasters counters that the State did not raise the price preemption exception below, but the State clearly addressed this issue in its response to Transmasters’ motion to dismiss. Nevertheless, because the State only raises the preemption exception relating to price, it tacitly concedes the ICCTA express preemption clause prohibits the State from bringing KCPA claims relating to Transmasters’ route or service. See McGinley v. Bank of America, N.A., 279 Kan. 426, 444, 109 P.3d 1146 (2005) (issues not briefed are deemed abandoned). Accordingly, we affirm the district court's dismissal of the State's KCPA claims relating to Transmasters’ route or service based upon the ICCTA’s express preemption provision.
With regard to the price preemption exception, the district court declined to rule whether the State had pled a lack of “prior consent or authorization of the owner or operator,” as required by the exception. 49 U.S.C. § 14501(c)(2)(C). The district court considered the “nonconsensual tow” issue to be moot, given its ruling that the KCPA is not a law “relating to the price of for-hire motor vehicle transportation by a tow truck” under 49 U.S.C. § 14501(c)(2)(C). Moreover, the parties have not briefed the nonconsensual tow issue. As a result, this issue is not appropriate for our review.
The question then becomes more narrowly focused: Are the KCPA’s unconscionable acts or practices provisions a law “relating to” price?
In addressing this question, the parties brief only the “unconscionable acts or practices” provisions under K.S.A. 50-627(b). It is noteworthy that the KCPA does not define unconscionability. State ex rel. Stovall v. DVM Enterprises, Inc., 275 Kan. 243, 249, 62 P.3d 653 (2003). Rather, it sets out a nonexclusive list of “circumstances” which the court “shall consider” when “determining whéther an act or practice is unconscionable.” K.S.A. 50-627(b). Some of these acts or practices deal directly with price, e.g., K.S.A. 50-627(b)(2) (“the price grossly exceeded the price at which similar products or services were readily obtainable in similar transactions by similar consumers”), while others may relate to price depending on the circumstances. See, e.g., K.S.A. 50-627(b)(5) (“the transaction the supplier induced the consumer to enter into was excessively onesided in favor of the supplier”). As a result, price unconscionability under the KCPA is determined on a case-by-case basis. See Remco Enterprises, Inc. v. Houston, 9 Kan. App. 2d 296, 302, 677 P.2d 567, rev. denied 235 Kan. 1042 (1984) (“In determining price unconscionability, there is no fixed ratio limit. The issue is to be determined by the court upon the basis of the peculiar circumstances of each case.”).
The KCPA, adaptable to the circumstances of a particular case, is still a law “relating to the price” as that phrase is used in the price preemption exception of 49 U.S.C. § 14501(c)(2)(C). If it were not, we would conclude it is not “related to” price as that phrase is used in the express preemption clause of 49 U.S.C. § 14501(c)(1). Congress’ use of cognates of the word, “relate,” show it intended to grant an exception in 1995 as broad in scope (at least with reference to price) as the express preemption clause previously enacted in the ICCTA.
The State properly suggests this result is dictated by “rules of logic.” The Ninth Circuit Court of Appeals has employed this logic: “[T]he regulation [for Washington state towing businesses] is not preempted under § 14501(c)(1) unless it relates to price. If the regulation relates to price, however, it is saved from preemption under the non-consensual towing exception of § 14501(c)(2)(C). Thus, either way . . . [the] regulation is not preempted.” Independent Towers, WA v. Washington, 350 F.3d 925, 932 (9th Cir. 2003).
A contrary result is appropriate only if Congress expressed one intent by the phrase “related to” in the express preemption clause of 49 U.S.C. § 14501(c)(1), and a different intent by the phrase “relating to” in the price preemption exception found at 49 U.S.C. § 14501(c)(2)(C). This was the conclusion of law made by the district court in the present case.
With regard to the meaning of the words “related to” in the express preemption clause at 49 U.S.C. § 14501(c)(1), the district court correctly held this phrase is “broadly interpreted.” Courts construing the ICCTA have relied on cases interpreting similar language in the Airline Deregulation Act of 1978 (ADA) and the Employee Retirement Income Security Act of 1974 (ERISA). See Ace Auto Body & Towing, Ltd. v. City of New York, 171 F.3d 765, 772-73 (2d Cir.), cert. denied 528 U.S. 868 (1999). Both the Second Circuit Court of Appeals in Ace Auto Body & Towing, 171 F.3d at 773, and the district court in the present case cited Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383, 119 L. Ed. 2d 157, 112 S. Ct. 2031 (1992), which construed the ADA in light of ER-ISA. The United States Supreme Court stated in Morales:
“For purposes of the present case, the key phrase, obviously, is ‘relating to.’ The ordinary meaning of these words is a broad one — ‘to stand in some relation; to have bearing or concern; to pertain; refer; to bring into association with or connection with,’ Black’s Law Dictionary 1158 (5th ed. 1979) — and the words thus express a broad pre-emptive purpose. We have repeatedly recognized that in addressing the similarly worded pre-emptive provisions of . . . ERISA, 29 U.S.C. § 1144(a), which pre-empts all state laws ‘insofar as they . . . relate to any employee benefit plan.’ ” 504 U.S! at 383.
This passage supports the district court’s conclusion that the phrase “related to” in the express preemption clause at 49 U.S.C. § 14501(c)(1) should be broadly construed.
The Supreme Court’s statutory interpretation in Morales also bolsters the proposition that the phrase “relating to” in the price preemption exception of 49 U.S.C. § 14501(c)(2)(C) should be construed broadly. The Morales Court effectively equated the words “related to” and “relating to,” even though the phrases were found in different acts, i.e., the ADA and ERISA. See 504 U.S. at 383-86. Similarly, we should not differentiate these phrases in the ICCTA, especially when they are found in the same statute.
It is true Morales construed “relating to” with regard to the breadth of preemption, not the breadth of an exception to preemption which is at issue here, but the principle is the same. Morales emphasized that “statutory intent” is based on “ ‘the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose. [Citations omitted.]’ ” 504 U.S. at 383. Nothing in the ordinary meaning of language suggests that cognates of “relate” have abroad meaning for purposes of preemption but a narrow meaning for purposes of an exception to preemption. Such a construction could only be based on a consideration other than the statutory language itself. In this regard, we note there is a general presumption against preemption of state law. See Coma Corporation v. Kansas Dept. of Labor, 283 Kan. 625, 632, 154 P.3d 1080 (2007) (citing New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 654, 131 L. Ed. 2d 695, 115 S. Ct. 1671 [1995]).
Despite the equivalence of the phrases “related to” and “relating to,” the district court based its narrow reading of the “relating to” language found in the price preemption exception on a snippet of legislative history. The House Report of the Transportation and Infrastructure Committee stated that 49 U.S.C. § 14501(c)(2)(C)
“provides a new exemption from the preemption of State regulation of intrastate transportation relating to the price of non-consensual tow truck services. This is only intended to permit States ... to set maximum prices for non-consensual tows, and is not intended to permit re-regulation of any other aspect of tow truck operations.” H.R. Rep. No. 104-311, 104th Cong., 1st Sess., at 119 (1995), reprinted in 1995 U.S.C.C.A.N. 793, 831.
Relying exclusively on this brief passage, the district court held that the KCPA does not set “maximum price[s],” the phrase used by the House Committee, and thus it ruled: “[T]here is no applicable exception and [the State’s] claims are preempted by the ICCTA.” This legislative histoiy, however, does not support the district court’s conclusion because the House Conference Report later removed the House Committee’s reference to “maximum” prices. H. Conf. R. No. 104-88 at 219. Moreover, Transmasters cites no case law in support of its assertion that the price preemption exception at 49 U.S.C. § 14501(c)(2)(C) applies only to maximum prices.
The intent of Congress is expressed through its statutory language. “It is never easy to use legislative histoiy to decipher legislative intent because members of Congress may vote for a statute for varying reasons and may expect the courts to apply the statute in differing manners.” Perera v. Siegel Trading Co., Inc., 951 F.2d 780, 784 (7th Cir. 1992). The district court’s restrictive interpretation of 49 U.S.C. § 14501(c)(2)(C) simply read “relating to” out of the statute. See also American Airlines, Inc. v. Wolens, 513 U.S. 219, 226-28, 130 L. Ed. 2d 715, 115 S. Ct. 817 (1995) (holding a generally worded consumer protection act fell within ADA preemption).
if the KCPA unconscionability provision is expressly preempted because it relates to price under 49 U.S.C. § 14501(c)(1), it is also a law relating to price under the preemption exception established by 49 U.S.C. § 14501(c)(2)(C). We hold, under the facts of this case, that unconscionable price claims brought under K.S.A. 50-627 are not preempted by the express preemption clause of 49 U.S.C. § 14501(c)(1) prohibiting the enactment or enforcement of a law “related to a price, route or service of any motor carrier” because these claims are included within the preemption exception allowing the enactment or enforcement of a law “relating to the price of for-hire motor vehicle transportation by a tow truck, if such transportation is performed without the prior consent or authorization of the owner or operator of the motor vehicle” under 49 U.S.C. § 14501(c)(2)(C).
The district court’s ruling to the contrary is reversed, the remaining rulings are affirmed, and the case is remanded for further proceedings.
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Elliott, J.:
Helen Rettie appeals the trial court’s ruling that her employment contract with Unified School District 475 (U.S.D. 475) is void because she allowed her teacher’s certificate to lapse and, therefore, she was not entitled to a due process termination hearing. We reverse and remand.
The facts are essentially undisputed, as the case proceeded to bench trial on stipulated facts.
Rettie was a tenured teacher qualified to teach early childhood handicapped classes and employed by Unified School District 475 for the school year from August 11, 2003, through May 28, 2004. Rettie renewed her contract with U.S.D. 475 for the 2004-2005 school year beginning on August 9, 2004.
On July 7, 2004, Rettie’s teacher’s certificate lapsed due to her failure to complete the prescribed continuing education requirements. Rettie applied for a substitute teacher’s certificate which was granted on July 12, 2004.
Due to the lapse in Rettie’s teacher’s certificate, a letter dated July 19, 2004, was sent to Rettie indicating her position with the district was terminated. The letter provided:
“Upon review of your current certification status I found that you no longer meet the requirements of your teaching contract with Geary County USD 475 schools. Your contract states that ‘the contract shall be void if the teacher fails to have on file with the Board continuously during employment a valid Kansas Teaching Certificate for the level at which the teacher is employed and for the subjects employed to teach.’
“Because your certification has lapsed your contract is no longer valid. “Questions or concerns regarding this matter may be directed to Sarah Talley, Director Human Resource Services at . . . .”
The Board of Education for U.S.D. 475 passed no resolution terminating Rettie prior to the July 19 letter, and the Board passed no resolution authorizing or approving Rettie’s termination.
At oral argument, the Board’s counsel acknowledged no resolution had been adopted because the Board’s position has always been Rettie’s contract was void and, therefore, she was not entitled to any of the protections of a property interest in continuing employment.
Rettie took classes and received her teacher’s certificate, including the early childhood handicapped education certificate on December 23, 2004.
The trial court ruled Rettie did not possess any property right to continued employment requiring a due process hearing.
This appeal follows.
Although tire parties have divided their arguments into numerous issues, the central question around which this appeal revolves is simply whether a void employment contract eliminates a tenured teacher’s property interest in continued employment. We hold, under the facts here presented, the answer is “no.”
Since this case was decided on stipulated facts and the interpretation of a written instrument, our review is unlimited. Schwatken v. Explorer Resources, Inc., 34 Kan. App. 2d 873, 874-75, 125 P.3d 1078, rev. denied 281 Kan. 1371 (2006).
In employment cases, the right to procedural due process depends on the existence of a cognizable property interest in continued employment. State law rather than the federal Constitution creates property interests in employment. Baughman v. U.S.D. No. 500, 27 Kan. App. 2d 888, 890, 10 P.3d 21 (2000) (citing Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 84 L. Ed. 2d 494, 105 S. Ct. 1487 [1985]).
Paragraph 7 of Rettie’s employment contract clearly provided the “contract shall be void if the Teacher fails to have on file with the Board continuously during employment a valid Kansas Teacher’s Certificate for the level at which the Teacher is employed and for the subjects employed to teach.”
Ordinarily, when the language of a contract is clear and unambiguous, courts must give effect to the expressed intent of the parties and enforce the contract as written. See Decatur County Feed Yard, Inc. v. Fahey, 266 Kan. 999, 1005, 974 P.2d 569 (1999).
Here, Rettie clearly allowed her teacher’s certificate to lapse and she did not have a teacher’s certificate at the time the new school year commenced, although she had obtained a substitute teacher’s certificate. The teaching contract clearly required Rettie to obtain a valid teacher’s certificate in the programs for which she was hired to teach, not merely a substitute teacher’s certificate. U.S.D. 475 was therefore within its authority to terminate Rettie’s employment for the 2004-2005 school year.
However, the right to terminate employment is distinct from the right to due process. See Wertz v. Southern Cloud Unified School Dist., 218 Kan. 25, 32-33, 542 P.2d 339 (1975). And although the contract defines the terms of employment, Kansas statutes, not contract provisions, provide a tenured teacher with a property interest in continued employment. Baughman, 27 Kan. App. 2d at 891.
Our interpretation of statutes on appeal is unlimited. Spencer v. U.S.D. No. 501, 23 Kan. App. 2d 737, 739, 935 P.2d 242, rev. denied 262 Kan. 963 (1997).
It is stipulated that Rettie was a tenured teacher. And once a teacher is tenured, he or she qualifies for protection under the Teachers Due Process Act, K.S.A. 72-5436 et seq.
K.S.A. 2006 Supp. 72-5445(b) requires the provisions of the Act to be applied to any tenured teacher except those whose certificate is revoked due to a conviction or diversion for specific crimes listed in the statute.
Here, Rettie’s certificate lapsed for not completing continuing education requirements; she is still entitled to the protections of the Teachers Due Process Act.
Under the Teachers Due Process Act, a teacher has a property interest in continued employment unless the teacher receives a written notice of termination or nonrenewal. The termination notice must include a statement of the reasons for the termination and of the right to request a hearing within 15 days of the termination notice. K.S.A. 2006 Supp. 72-5438(a).
In the present case, Rettie received a notice of termination which disclosed the reason for termination, but failed to provide for the right to request a hearing.
Failure to comply with 72-5438 constitutes a violation of due process. See Hachiya v. U.S.D. No. 307, 242 Kan. 572, 581, 750 P.2d 383 (1988). As a result, the fact the school district would have been justified in terminating Rettie’s contract — or in finding the contract void — is immaterial. The purpose of the Act is designed to protect tenured teachers from unjust dismissal. This purpose cannot be achieved if a teacher’s contract may be unilaterally terminated without proper notice and the opportunity for the teacher to have a hearing at which he or she may provide a defense. See Baughman, 27 Kan. App. 2d at 891.
In Wertz, our Supreme Court held:
“The school board has argued that the trial in the district court amounted to a due process hearing in which the court found justifiable cause for termination. The thrust of the argument being that such a determination removes any liability of the board for wages after the wrongful termination of the contract. We cannot agree. Constitutional due process in this case required a hearing by the school board before the discharge. The trial in district court was brought by the teacher to enforce his property right which we have determined was violated and which gave rise to the action in the district court. The district court’s decision denying relief was based upon the faulty premise that the issue presented was limited to whether the discharge was justifiable. Instead, the issue presented to the court was whether the board had violated a protected right to constitutional due process.” 218 Kan. at 32-33.
Similarly, although Rettie failed to meet an essential requirement of employment, i.e., possessing a valid teacher’s certificate, she could not be deprived of her property interest in continued employment without the due process provided by the Act, regardless of the strength of the grounds for terminating that employment.
In other words, the contract cannot trump the due process policy embodied in the Teachers Due Process Act.
U.S.D. 475’s reliance on Garner v. Louisiana State Bd. of Educ., 277 So. 2d 492 (La. App.), rev. denied 279 So. 2d 696 (La. 1973), is misplaced. There, the question involved the process due a teacher holding a temporary teaching certificate. A teacher holding a temporary certificate was terminable at will. 277 So. 2d at 495. The Gamer court did not consider whether a tenured teacher could be dismissed without a hearing.
Likewise, U.S.D. 475’s reliance on Gamble v. Mills, 483 So. 2d 826 (Fla. App. 1986), is misplaced even though it does involve a tenured teacher. Significant to our discussion, the Gamble court did not hold, as a matter of law, that the employment contract was void at the time the teacher’s certificate lapsed. Rather, the court upheld the administrative determination made following a hearing. 483 So. 2d at 828-29.
Instead, we find the reasoning of Giedra v. Mt. Adams Sch. Dist. No. 209, 126 Wash. App. 840, 110 P.3d 232 (2005), rev. denied 156 Wash. 2d 1016 (2006), to be persuasive.
There, two teachers challenged the lack of a due process hearing prior to their dismissals for failure to maintain their certificates. The Giedra court noted the teachers possessed a property interest in continued employment under Washington law. 126 Wash. App. at 845-46. Although it was undisputed that the teachers had allowed their certificates to lapse and that Washington law required teachers to hold a valid teacher’s certificate, the court concluded the absence of a valid certificate did not affect the teachers’ procedural rights. 126 Wash. App. at 846-47.
Regardless of whether a teacher is obligated to maintain a valid certificate under contract or under state law, the failure to maintain the certificate is grounds for termination. But the Giedra court concluded the school district was obligated to afford the teachers due process before terminating them. The basis for the court’s decision in Giedra is the distinction between the substantive right to continued employment and the procedural right to due process in that determination.
We believe Kansas law also recognizes this distinction. See Wertz, 218 Kan. 32-33.
Reversed and remanded for further proceedings. | [
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Marquardt, J.:
The State challenges the trial court’s decision that it did not have the authority to find Vasquez in contempt of court for his failure to pay restitution. We dismiss.
In March 2000, Vasquez was charged with one count of severity level 4 aggravated battery. Vasquez and the State reached an agreement whereby Vasquez pled guilty to one count of misdemeanor battery and the State agreed to recommend a sentence of 180 days in jail, with 2 years of probation after Vasquez served 30 days. Vasquez was also ordered to pay restitution of $24,922.47 and the reasonable cost of one additional surgery for the victim.
The State sought to revoke Vasquez’ probation in the summer of 2002. The journal entry shows that Vasquez was current with his restitution payments; nonetheless, the trial court extended Vasquez’ probation an additional 24 months.
Vasquez failed to appear at an August 2004 probation review hearing and the trial court issued a bench warrant for his arrest. The State filed a second motion seeking to revoke Vasquez’ probation. On July 1, 2005, the trial court revoked Vasquez’ probation because Vasquez had failed to pay all restitution.
Vasquez filed a motion to reconsider, arguing that pursuant to statute his probation could not extend past May 15, 2004; therefore, the trial court did not have jurisdiction to revoke his probation in 2005. After hearing arguments from the parties, the trial court ruled that it lost jurisdiction over Vasquez on May 15, 2004, and the August 9, 2004, motion to revoke Vasquez’ probation was untimely.
In July 2005, the State filed a motion asking the trial court to find Vasquez in indirect contempt of court, stating that Vasquez still owes more than $23,000 on the restitution order. Vasquez responded and asked the trial court to quash the State’s motion claiming that the trial court no longer had jurisdiction over him. The parties were ordered to brief the issue.
After hearing arguments from counsel, the trial court concluded that it did not have the authority to order a contempt citation in a criminal case. Further, the trial court ruled that the issue of Vasquez’ restitution order was “part and parcel” of Vasquez’ probation. Therefore, it did not have jurisdiction to enforce any orders stemming from the original criminal case. The State timely appeals.
Vasquez argues that under K.S.A. 2006 Supp. 22-3602(b), the issue being appealed by the State is not appealable.
Whether jurisdiction exists is a question of law over which an appellate court’s scope of review is unlimited. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006). The right to appeal is entirely statutory. Subject to certain exceptions, Kansas appellate courts have jurisdiction to entertain an appeal only if the appeal is taken in the manner prescribed by statutes. State v. Legero, 278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004).
K.S.A. 2006 Supp. 22-3602(b) states:
“Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others:
(1) From an order dismissing a complaint, information or indictment;
(2) from an order arresting judgment;
(3) upon a question reserved by the prosecution; or
(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1,1993, in any case involving an off-grid crime.”
The legislature clearly established the limited circumstances under which the State is allowed to appeal. In the instant matter, the State does not come within any of the narrowly defined categories of K.S.A. 2006 Supp. 22-3602(b). Once an individual completes his or her period of incarceration or probation, the trial court no longer has jurisdiction in the criminal case over any unpaid restitution. Collection of unpaid restitution must then be pursued in a civil action. Accordingly, this court does not have jurisdiction to consider the substantive issues raised by the State.
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Caplinger, J.:
This action emanated from the collision of a freight train owned by Burlington Northern and Santa Fe Railway Company (BNSF) and a truck owned by Dodge City Implement, Inc. (DCI) and driven by Justin Slattery. BNSF filed an action in federal court for damages sustained to its engine, train and cargo during the collision. After BNSF eventually settled its claims with DCI, DCI brought a new action in Barber County District Court against Moore Township and the Board of County Commissioners ofthe County of Barber (Barber County) seeking recovery under theories of negligence, implied indemnity, and comparative implied indemnity, based upon alleged negligence in the construction and maintenance of the railroad grade crossing. DCI appeals from the district court’s dismissal of its petition for failure to state a claim and failure to provide notice to Moore Township and Barber County pursuant to K.S.A. 2006 Supp. 12-105b.
Factual and procedural background
The facts of this case are undisputed. On September 8, 2003, a freight train operated by BNSF struck a truck owned by DCI and driven by its employee, Justin Slattery, at a railroad grade crossing in Moore Township in Barber County. The train derailed causing extensive damage to the engine, train, and cargo, as well as damage to DCI’s truck and cargo, and personal injuries to Slattery.
On February 4, 2004, BNSF filed a complaint against DCI and Slattery in the United States District Court for the District of Kansas. Moore Township and Barber County were never joined as defendants in this federal action.
In April 2004, DCI paid BNSF $3 million in full settlement of all claims arising from the accident. The payment represented settlement “of all of [BNSFj’s damages against all parties and persons.” However, DCI and Slattery expressly reserved “the right to make a claim against or sue Barber County, Kansas, and/or any person or entity, other than [BNSF] . . . for comparative implied indemnity and any other cause of action that may exist under Kansas law.” The next day, BNSF dismissed with prejudice its claims against DCI and Slattery in federal court.
On June 6, 2005, DCI and Slattery filed a petition for damages against Barber County in Barber County District Court; they later added Moore Township as a defendant. DCI and Slattery sought recovery in the amount of $3,092,313.34, representing reimburse ment in the amount of the settlement with BNSF as well as their own personal damages. DCI and Slattery asserted claims based on negligence, negligence per se, implied indemnity, and comparative implied indemnity arising out of the negligent construction and maintenance of the grade crossing. Prior to commencing this action, DCI and Slattery sent both Moore Township and Barber County notice of a potential claim purporting to comply with the notice provisions of K.S.A. 2006 Supp. 12-105b.
Both Moore Township and Barber County filed motions to dismiss DCFs petition for failure to state a claim, arguing DCFs claim for comparative implied indemnity was unavailable because neither Moore Township nor Barber County was joined as a defendant in the federal action filed by BNSF. They also argued DCI failed to substantially comply with the notice provisions of K.S.A. 2006 Supp. 12-105b.
Following a hearing, the district dismissed with prejudice all of the claims of DCI and Slattery. The district court reasoned DCI could not maintain its comparative implied indemnity claim because neither Moore Township nor Barber County was named as a defendant or joined in the underlying lawsuit pursuant to K.S.A. 60-258a. Further, the court concluded DCI and Slatteiy could not maintain an action for negligence or negligence per se because they failed to indicate the amount of monetaiy damages sought and thus did not substantially comply with the notice provisions of K.S.A. 2006 Supp. 12-105b.
DCI timely appeals the district court’s rulings granting the motions to dismiss.
Issues on appeal
DCI makes two distinct arguments on appeal. First, with respect to its claim of comparative implied indemnity, DCI argues the district court erred in finding DCI was prohibited by controlling Kansas precedent from seeking reimbursement from Barber County and Moore Township for its claim emanating from DCFs voluntaiy settlement with BNSF.
Second, DCI argues the district court erred in dismissing its action for individual injuries and damages, which amounted to the remaining $92,313.34 of the overall prayer. DCI claims the district court erroneously interpreted K.S.A. 12-105b in finding this claim for direct damages was barred by DCI’s failure to substantially comply with that statute.
Standard of review
In reviewing a district court’s grant of a motion to dismiss for failure to state a claim, we must accept the facts alleged by plaintiff as true, along with any inferences that can be reasonably drawn therefrom. We must then decide whether those facts and inferences state a claim based on plaintiff s theory or any other possible theory. Jones v. State, 279 Kan. 364, 366, 109 P.3d 1166 (2005). However, when a motion to dismiss raises an issue concerning the legal sufficiency of a claim and the district court receives and considers matters outside the pleadings, as it did here, the motion is treated as one for summary judgment and disposed of according to K.S.A. 60-256. Davidson v. Denning, 259 Kan. 659, Syl. ¶ 1, 914 P.2d 936 (1996).
Where there is no factual dispute, our review of an order regarding summary judgment is de novo. Roy v. Young, 278 Kan. 244, 247, 93 P.3d 712 (2004).
Dismissal of comparative implied indemnity claim
First, we must determine whether the district court appropriately concluded that DCFs voluntary settlement of all BNSF’s claims relating to the grade crossing accident prohibited DCI from then seeking to collect payment on a theory of “comparative implied indemnity” from Barber County and Moore Township, neither of which were parties to the federal court action, and neither of which participated in the settlement. In resolving this issue, we will closely analyze several cases decided by our Supreme Court: Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980); Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 643 P.2d 158 (1982); and Teepak, Inc. v. Learned, 237 Kan. 320, 321, 699 P.2d 35 (1985).
Kennedy v. City of Sawyer
In urging us to find the district court erred, DCI relies primarily upon Kennedy, 228 Kan. 439. There, the plaintiffs brought claims against the city and a city councilman after the plaintiff s cattle died of eating weeds sprayed with herbicide by the councilman on behalf of the city. The city filed a third-party petition pursuant to K.S.A. 60-214(a) for indemnity against tire manufacturer of the herbicide, who in turn filed a claim for indemnity under the same statute against the packager of the herbicide. 228 Kan. at 442. The plaintiffs, however, never sought relief from the manufacturer or packager. The district court granted the third-party defendants’ motions for summary judgment, and the plaintiffs appealed. While the appeal was pending, the city settled the entire claim with the plaintiffs and obtained a release of all other potentially responsible parties. 228 Kan. at 444-45.
The Supreme Court in Kennedy reversed the dismissal and allowed the city’s indemnity action as “a form of comparative implied indemnity.” 228 Kan. 440, Syl. ¶ 9. The court held:
“We conclude that now is the proper time under the facts of this case to adopt a form of comparative implied indemnity between joint tortfeasors. When, as here, a settlement for plaintiffs’ entire injuries or damages has been made by one tortfeasor during the pendency of a comparative negligence action and a release of all liability has been given by plaintiffs to all who may have contributed to said damages, apportionment of responsibility can then be pursued in the action among the tortfeasors.” 228 Kan. 440, Syl. ¶ 9.
DCI suggests the facts of this case mirror those in Kennedy. It points out that BNSF and DCI reached a settlement for BNSF’s entire damages, and BNSF released all parties from liability. DCI then proceeded in a separate action against the “tortfeasors” who contributed to BNSF’s damages, i.e., Barber County and Moore Township, for apportionment of responsibility.
Ellis v. Union Pacific R.R. Co.
Barber County and Moore Township respond that this case is not controlled by Kennedy, but rather by Ellis v. Union Pacific R.R. Co., 231 Kan. 182, wherein they assert the Kansas Supreme Court expressly disapproved application of Kennedy to circumstances similar to those in this case.
The facts in Ellis are very similar to those here. In Ellis, the plaintiff sued the railroad for damages arising out of a collision between the plaintiffs vehicle and a train. 231 Kan. at 183. Pursuant to K.S.A. 60-258a(c), the railroad joined several governmental entities, including two townships and a county, but the plaintiff did not assert any claims against these entities. The railroad then setded the case with the plaintiff and obtained an agreement from the plaintiff that included a release of the governmental entities and a promise by plaintiff to cooperate with the railroad in the prosecution of any claim for indemnity or contribution. After approval of the settlement, the railroad attempted to pursue a claim in the same action for comparative implied indemnity against the governmental entities. 231 Kan. at 183. The Supreme Court, however, upheld dismissal of the railroad’s claim for implied indemnity or contribution, holding that no cause of action was available. 231 Kan. at 191-92.
The court in Ellis distinguished Kennedy, noting that while Kennedy involved joinder of defendants under K.S.A. 60-214, the case before it concerned joinder of additional defendants pursuant to K.S.A. 60-258a. 231 Kan. at 187-89. The court held that because no party sought recovery against the governmental entities, the railroad could not subsequently recover from the governmental entities even if they were at fault. The court reasoned that had the governmental entities been subject to liability, they might have been subject to contribution. 231 Kan. at 190. Further, tire Ellis court noted that Kennedy involved “indemnification against other parties in tire manufacturer’s chain of distribution and supply.” Ellis, 231 Kan. at 184.
Significantly, the Ellis court specifically limited the language in Kennedy which DCI relies upon here. The court stated:
“Broad language in the Kennedy opinion, 228 Kan. at 460-61, outlining the defendant’s role in bringing ‘into the action all tortfeasors against whom comparative liabiliiy through indemnity is sought’ goes far beyond the facts of the Kennedy case and is disapproved to the extent that it suggests a defendant can enlarge the liability of other defendants.” 231 Kan. at 191.
Further, the court in Ellis clarified the nature of the cause of action which tire settling defendants might have had if they had met the “procedural prerequisites”:
“The relief granted by this court, in light of the facts in the Kennedy case and the interplay of principles of comparative negligence, indemnity, and settlement, was termed an action for comparative implied indemnity. We recognize the term is not appropriate to the case at bar in which post-settlement contribution, rather than indemnity, is at issue. However, while proportional contribution is a more appropriate term in the instant case, we have no desire to belabor that distinction and cloud the issue before us which concerns procedural prerequisites to any claim for post-settlement proportional payment, regardless of the nomenclature used.” 231 Kan. at 184.
Here, as in Ellis, DCI is actually seeking proportional post-settlement contribution rather than comparative implied indemnity from the governmental entities. And, like Ellis, regardless of the nomenclature used, it appears the procedural prerequisites to post-settlement proportional payment were not met as Barber County and Moore Township were not subject to liability in the previous action. In fact, this case arguably presents a stronger case for denial of post-settlement contribution than Ellis, as DCI did not seek to join the governmental entities as defendants pursuant to K.S.A. 60-258a, as did the railroad in Ellis. Moreover, DCI did not allege in its answer in the federal case that anyone other than BNSF was at fault for the accident.
DCI attempts to. distinguish Ellis by suggesting that Ellis turned upon whether the plaintiff in the original action could have brought an action against the governmental entities at the time the railroad settled the claims with the plaintiff. DCI points out that in Ellis, the statute of limitations on the plaintiff s claims against the governmental entities had already expired at the time of settlement. Here, DCI settled with the plaintiff, BNSF, before BNSF’s statute of limitations for claims against the governmental entities had expired.
However, DCI neglects to point out that the court in Ellis expressly rejected this argument:
“In the case at bar the defendants against whom contribution is now sought were not subject to actual liability since the plaintiffs had made no claim against them. Union Pacific argues the potential for recovery existed because of die possibility of amendment of the plaintiff s petition to state a claim under the relation back provisions of K.S.A 60-215 despite the running of the statute of limitations under K.S.A. 60-513. We need not reach that issue because plaintiffs did not attempt to amend their petitions either before or after the running of the statute of limitations.” 231 Kan. at 191-92.
Here, BNSF did not attempt to amend its petition in the federal action to make a claim against the governmental entities before settling with the original defendant. The determinative factor here, as it was in Ellis, is not whether the statute of limitations had run at the time of settlement but whether the governmental entities were subject to liability in the prior action.
Teepak v. Learned
Barber County and Moore Township point out that Kennedy’s application was similarly restricted in Teepak, 237 Kan. at 321, decided 3 years after Ellis. There, the plaintiff was injured after he ate some sausage and subsequently became ill as a result of a sausage casing obstructing his small intestine. Dr. George Learned performed surgery to remove the casing, leaving plaintiff with only a fraction of his small intestine.
The plaintiff sued Alewel’s, the sausage manufacturer, and Teepak, tire casing manufacturer, in federal court. Teepak filed a third-party complaint against Learned alleging negligence and seeking indemnification in the event Teepak was found liable. The plaintiff, however, did not assert any claims against Learned. Teepak also filed a separate action against Learned in state court seeking the same relief it sought in its third-party complaint.
After Teepak and Alewefs settled the federal action, Teepalc s third-party complaint was dismissed without prejudice. Teepak then attempted to proceed with its action against Learned in state court. The district court denied Learned’s motions for dismissal and summary judgment, and Learned filed an interlocutory appeal.
Relying upon Ellis, the Kansas Supreme Court concluded Teepak had no cause of action against Learned even if his negligence contributed to the plaintiffs injuries. The court reasoned:
“In the case before us, Teepak (like in the railroad in Ellis) is seeking post-settlement contribution from a party against who the injured party never sought recovery but whom it claims contributed to the injured party’s damages. As we held in Ellis this constitutes an action seeking post-settlement contribution rather than indemnity and the holding of Kennedy relative to “comparative implied indemnity” is inapplicable. We conclude the trial court erred in holding Teepak had a valid cause of action against Learned predicated upon indemnification.” 237 Kan. at 328.
As it had in Ellis, the court in Teepak strongly limited its holding in Kennedy.
“The difficulties that have arisen from the Kennedy decision primarily involve some overly broad language utilized therein. Indemnification among those in the chain of distribution arises out of their contractual relationship with each other and Kennedy must be read in the context of its factual situation. The use of the term ‘joint tortfeasors’ in Syl. ¶ 9 of Kennedy, an indemnity case, is unfortunate and has led to considerable confusion.” (Emphasis added.) 237 Kan. at 328.
The court in Teepak further noted its agreement with what it termed the “one action rule” adopted in Albertson v. Volkswagenwerk Aktiengesellschaft, 230 Kan. 368, 634 P.2d 1127 (1981), wherein plaintiff was injured in an automobile accident, but was not permitted to sue the vehicle manufacturer because he had already recovered from the driver of the vehicle in a comparative negligence action. Albertson held that in a negligence action, all parties to the occurrence must have their rights and liabilities determined in one action:
“Albertson’s injuries were allegedly caused by a combination of the collision and the lack of crashworthiness of the vehicle in which he rode. They resulted from one occurrence. Albertson’s total injuries were evaluated by the jury and determined to be $275,000. Albertson was found responsible for 40% of his own injuries; 60% were caused by others. The action is over. Volkswagen could have been sued in state court but plaintiff chose not to join the corporation for strategic reasons. Albertson is bound by that decision. Under the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible. Those not joined as parties or for determination of fault escape liability.” 230 Kan. at 374.
Here, as in Ellis and Teepak, no commercial or contractual relationship existed between the settling defendant and the governmental entities it sought to pursue for post-settlement contribution, incorrectly denominated as “indemnity or subrogation.” And, as in Albertson, the plaintiff could have sued the governmental entities in state court, but for reasons undisclosed to the court, chose not to do so.
Erosion of the “one-action rule”
Although DCI concedes that neither Ellis nor Teepak has been overruled, DCI nevertheless argues subsequent appellate cases have eroded the “one action” rule of Albertson, resurrected the all-inclusive holding of Kennedy, and broadened the scope of “comparative implied indemnity,” or, as it is more properly termed, post-settlement contribution. Barber County and Moore Township suggest, however, that in the few instances where comparative implied indemnity actions have been permitted, the court has continued to rely on the existence of a commercial or chain of distribution relationship among the various parties defendant.
DCI cites Mathis v. TG&Y, 242 Kan. 789, 751 P.2d 136 (1988), as evidence of this continued expansion of comparative implied indemnity. There, the plaintiff filed an action against TG&Y after a loose door closure struck plaintiff on the head as he was leaving a TG&Y store, resulting in personal injury. The plaintiff later filed a second lawsuit against several other defendants, alleging negligence as a result of the same incident. 242 Kan. at 790.
After TG&Y settled the second lawsuit, TG&Y moved to dismiss Mathis’ original suit based on Albertson s one-action rule. 242 Kan. at 790. On appeal, a divided Supreme Court permitted Mathis to pursue the original suit because a judicial adjudication of the comparative fault of the defendants had not been made. 242 Kan. at 792-93. In a dissent, Justice Herd encouraged tire majority to apply the one-action rule, insisting that it was more appropriate for dismissal with prejudice to be considered a determination of the case on its merits, and reasoning that to hold otherwise would permit parties to maintain additional actions arising out of the same incident against other parties. 242 Kan. at 794-95 (Herd, J., dissenting).
However, unlike Ellis, Teepak, or the present case, Mathis involved successive tort claims by a plaintiff against different defendants, not a situation in which neither the plaintiff nor the settling defendant brought claims against a nonparty and then the settling defendant attempted to bring an action arising from its settlement of the first action. And, as Barber County and Moore Township note, Mathis distinguished Teepak and, in doing so, confirmed tire continuing force of that holding.
Although not mentioned in DCFs appeal brief, DCI sought to rely at oral argument upon Anderson v. Scheffler, 242 Kan. 857, 858, 752 P.2d 667 (1988), in further support of its argument regarding elimination of the one-action rule. We note that counsel for Barber County as well as Moore Township addressed this authority at argument, and both have also provided us with post-argument correspondence discussing and distinguishing Anderson.
Anderson, a Missouri resident, was severely injured by an auger while delivering a load of poultry meal to a plant. Anderson filed suit against the owner and operator of the plant, Badger By-Products. Badger, a division of Beatrice Companies, Inc. (Beatrice) successfully removed the case to federal district court. Plaintiffs motion to remand the case to state court was denied. Plaintiff then amended his petition to join four additional defendants including Beatrice and Industrial Bearing and Transmission Company, Inc. (IBT), a Missouri corporation that sold the auger to Badger. 242 Kan. at 857-58.
Anderson again moved to remand the case to state court because the addition of IBT as a party defendant would destroy diversity jurisdiction. The court granted plaintiffs motion to amend, adding the additional defendants, but did not include IBT because to do so would destroy diversity jurisdiction. Thereafter, plaintiff filed suit in state court against IBT and Randy Scheffler, an IBT employee who had accepted the auger order. 242 Kan. at 858-59. In the federal case, neither plaintiff nor any of the named defendants made any allegation of fault on the part of IBT or Scheffler. Plaintiff subsequently settled tire federal case with Beatrice, releasing all parties except IBT and Scheffler and dismissing the case with prejudice. 242 Kan. at 858-59.
On appeal, the Supreme Court held that a determination of comparative fault had not occurred. The court refused to apply Albertson and Teepak because plaintiff specifically attempted to retain the right to bring suit against IBT and Scheffler. Although seemingly questioning the rationale behind Mathis, the Anderson court permitted plaintiff to maintain a second suit. Anderson, 242 Kan. at 865-66.
Although not cited by the parties, we note that the court applied Mathis in Childs v. Williams, 243 Kan. 441, 757 P.2d 302 (1988). There, the 12-year-old plaintiff was injured in an automobile accident, and the plaintiff s mother and the driver of the vehicle in which the plaintiff was a passenger negotiated a settlement agreement. Because of the plaintiff s minority status, which required court approval of the settlement agreement, the plaintiff s mother filed a negligence action against the driver on the plaintiff s behalf. Following a “friendly hearing,” the court approved the setdement. 243 Kan. at 441. No determination of comparative fault occurred, nor did the plaintiff make any attempt to preserve a right of action against the driver of the other vehicle involved in the accident. 243 Kan. at 442.
The plaintiff s mother subsequently filed a negligence action against the other driver. That action was dismissed by the district court based on Albertson’s one-action rule. 243 Kan. at 442. Relying on Mathis and Anderson, our Supreme Court reversed the dismissal, permitting the plaintiff s mother to pursue the second suit because no judicial determination of comparative fault had occurred in the plaintiffs initial action. 243 Kan. at 443. In so holding, the court recognized an expansion of the one-action rule to permit a plaintiff to seek judicial determination of comparative fault, regardless of whether the plaintiff had the opportunity to do so earlier in an earlier action.
DCI also relies upon Mick v. Mani, 244 Kan. 81, 766 P.2d 147 (1988), in support of its suggestion that the one-action rule has been abrogated. There, after the plaintiff received severe injuries while working on a drilling rig, he simultaneously filed two suits— a products liability suit against the steel, welding, and repair companies and a negligence action against Mani, a plastic surgeon, and others who had treated him. Although the defendants participated in joint discovery, the cases were never consolidated. All defendants except one were dismissed from the first case, and the juiy found in favor of the remaining defendant. Similarly, all defendants were dismissed from the second case except Mani. 244 Kan. at 81-82.
The Mick court affirmed the district court’s summary judgment in favor of Mani, concluding that even without Mani’s presence in the first action, the jury made a determination of comparative fault. The court concluded “[pjlaintiff elected to separate his defendants but not his claims of damage. As a result, his entire damage claim was presented to the . . . jury. When that verdict became final, plaintiffs entire damage claim was ended.” 244 Kan. at 93. The court indicated the one-action rule should more appropriately be called the “one-trial rule.” 244 Kan. at 93.
Finally, DCI relies upon Schaefer v. Horizon Bldg. Corp., 26 Kan. App. 2d 401, 985 P.2d 723 (1999). In Schaefer, homeowners sued the general contractor and “John Doe” for remedial cement work performed on their home. The general contractor settled the claims and subsequently brought a third-party comparative implied indemnity claim against the subcontractor. This court recognized that comparative implied indemnity is “an equitable remedy available to a single defendant, among a number of tortfeasors, who by settling with the plaintiff or paying a judgment, pays the other tortfeasors’ share of liability.” 26 Kan. App. 2d at 403. Nevertheless, the court held that the general contractor did not have a valid comparative implied indemnity claim against the subcontractor because the subcontractor was not at risk of suit as the statute of limitations on the homeowners’ claims had expired. 26 Kan. App. 2d at 403. The court held:
“In order to prevail on a claim for partial indemnity or contribution against a third-party defendant, tire settlor must show it actually paid damages on behalf of that third party. If the third party was never at risk of having to pay for its own damages, the settlor cannot show it benefitted the third-party defendant, and the value of its contribution claim is zero.” 26 Kan. App. 2d 401, Syl. ¶ 2.
Our review of the cases decided post-Albertson reveals that certain exceptions to the one-action rule have been recognized in limited situations. Therefore, the question for this court becomes whether the facts of the present case fit under the broader rule as expressed in Mathis and recognized in Anderson as DCI suggests, or whether the facts remain squarely within the rule announced in Ellis and Teepak, as the County and Township suggest.
We note that the court in Anderson permitted plaintiff to pursue a second action against defendants not involved in the original lawsuit, holding that “where a plaintiff is prevented from joining a necessary party in federal court because of loss of diversity, as in this case, the action against that party survives in state court as an exception to the rule in Albertson.” (Emphasis added.) 242 Kan. at 865.
Here, unlike the plaintiff in Anderson, DCI did not make any attempt to join Moore Township or Barber County in the underlying action. Moreover, DCI does not explain its failure to join the governmental entities or suggest that it was otherwise prevented from doing so. While DCI persuasively asserts that the harshness of the one-action rule has been ameliorated, the exception provided in Anderson does not logically apply here.
Moreover, our review of Mathis and its progeny reveals that those cases also do not control the outcome of the present case. In Mathis, the Supreme Court permitted plaintiff to pursue a second action only in limited circumstances. The court reasoned:
“After an adjudication of comparative fault, no party should be afforded a second opportunity to litigate percentages of causal negligence. K.S.A. 60-258a certainly contemplates one action in which comparative fault is determined. However, it was never the intent of the legislature or this court to place form over substance and preclude a plaintiff from proceeding against a tortfeasor when there has been no judicial determination of comparative fault. Mathis has been denied his action. TG&Y is not prejudiced by allowing the suit to proceed. It may join other defendants for the purpose of comparing negligence at the trial.” (Emphasis added.) 242 Kan. at 794.
There is litde doubt that the Albertson court, when it considered the purpose behind K.S.A. 60-258a, anticipated the one-action rule would apply to prevent both plaintiffs and defendants alike from seeking additional recovery in subsequent lawsuits. However, as the one-action rule has evolved, the courts have seemingly developed a preference for permitting plaintiffs to pursue a second suit against defendants not party to the original action. See, e.g., Childs, 243 Kan. at 441. As the court in Mick recognized, “[I]t appears that under the most recent comparative fault cases, namely Mathis, Anderson, and Childs, a plaintiff may pursue separate actions against tortfeasors where there has been no judicial determination of comparative fault. Thus, the exceptions to the one-action rule arise when there has been no prior judicial determination of fault.” (Emphasis added.) 244 Kan. at 93.
Relying upon Mick, DCI argues comparative implied indemnity need only be sought from the third party before an apportionment of fault is made in the underlying action. However, in Mick the court prevented plaintiff from pursuing a second action because the juiy had made a determination of comparative fault at trial by denying plaintiff relief. Significantly, Mick involved an attempt by the plaintiff to achieve multiple recovery. Again, DCI cites no authority for its suggestion that this exception to the one-action rule may be extended to defendants.
Further, we find flaws in DCFs citation of Schaefer to support its claim that DCFs cause of action here was preserved because the statute of limitations had not expired. Although this court in Schaefer based its dismissal of the plaintiff s claim on the fact that the third-parly defendant was no longer at risk of suit because the statute of limitations had expired, 26 Kan. App. 2d at 403, the Schaefer court did not indicate an intent to permit defending parties to pursue claims for comparative implied indemnity at will. Rather, the court refused to undergo an in-depth analysis regarding whether a claim for comparative implied indemnity was feasible when such a claim would have been barred by the statute of limitations regardless of the outcome.
Further, while it is tempting to rely upon the district court’s rationale that the basis for denying DCFs cause of action was the failure to join Barber County and Moore Township pursuant to K.S.A. 60-258a, this conclusion is inappropriate. The purpose of K.S.A. 60-258a is not to impose liability on a joint tortfeasor but to protect a defendant from bearing the entire burden for its nonparty joint tortfeasors. See Ellis, 231 Kan. at 189. K.S.A. 60-258a cannot expand liability to a tortfeasor from whom plaintiff has not sought recovery. See Ellis, 231 Kan. at 191-92 (“It is inconsistent then to suggest the action of one defendant in settling the claim can broaden another defendant’s liability beyond what it would have been had the case gone to trial.”). Thus, even if DCI had joined Barber County and Moore Township under K.S.A. 60-258a, DCI’s claim for comparative implied indemnity would nevertheless be unavailable.
Moreover, even if Moore Township and Barber County had been joined in the federal action pursuant to K.S.A. 60-214, DCI could not pursue an action for comparative implied indemnity under Kennedy. As discussed above, the Supreme Court in Teepak expressly limited comparative implied indemnity to cases involving indemnification among those in the chain of distribution, rejecting the notion that a claim was available against all “joint tortfeasors.” 237 Kan. at 328; see also Ellis, 231 Kan. at 184; Blackburn, Inc. v. Harnischfeger Corp., 773 F. Supp. 296, 299 (D. Kan. 1991) (acknowledging that claim for comparative implied indemnity was limited to parties in manufacturer’s chain of distribution and supply or parties in which explicit contract for indemnification or contribution was formed).
Thus, we interpret Kansas law to require defendants seeking to minimize their liability in comparative fault situations not involving a chain of distribution or similar commercial relationship to do so by comparing the fault of other defendants in order to reduce their own share of liability and damages. If a defendant chooses to settle and obtain release of common liabilities involving other parties whom the plaintiff did not sue, the defendant does not have an action for comparative implied indemnity or post-settlement contribution. This holding recognizes that under Kansas comparative fault procedure such a remedy is not necessary, and further recognizes that such an action defeats the policy of judicial economy, multiplying the proceedings from a single accident or injury.
The United States District Court for the District of Kansas succinctly summarized the rule from Ellis and Teepak as barring lawsuits between joint tortfeasors when
“(1) an injured party has previously sued one tortfeasor, but not others, (2) that tortfeasor has settled with the injured party, (3) the injured party has given a full release of all claims held by it, and (4) the settling tortfeasor claims the other tortfeasors caused all or part of the injured party’s damages.” St. Francis Regional Medical Center, Inc. v. Critical Care, Inc., 997 F. Supp. 1413, 1430 (D. Kan. 1997).
Here, BNSF sued DCI but did not sue Moore Township or Barber County; DCI settled with BNSF; BNSF gave a full release of claims in the settlement agreement; and DCI now seeks to recover from Moore Township and Barber County, alleging those parties caused all or part of BNSF’s injuries. Under these circumstances, we hold the district court properly dismissed DCI’s claim for comparative implied indemnity.
Dismissal of negligence claims based upon K.S.A. 2006 Supp. 12-105b
DCI also appeals from the district court’s dismissal of its claim for failure to provide notice to Moore Township and Barber County pursuant to K.S.A. 2006 Supp. 12-105b. The court held DCI could not maintain an action for negligence or negligence per se because it failed to indicate the amount of monetary damages sought and thus did not substantially comply with the notice provisions of K.S.A. 2006 Supp. 12-105b.
Standard of Review
Whether DCI’s notice complies with K.S.A. 2006 Supp. 12-105b involves both statutory interpretation and construction of a written instrument. The interpretation of a statute is a question of law over which we have unlimited review. In this review, we are not bound by the trial court’s interpretation. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). The interpretation and legal effect of a written instrument is also a matter of law, and an appellate court exercises unlimited review. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005).
K.S.A. 2006 Supp. 12-105b(d) requires any person having a claim against a municipality that could give rise to a tort action to file a written notice with the clerk or governing body of the municipality before commencing the action. The notice must contain:
“(1) The name and address of die claimant and the name and address of the claimant’s attorney, if any; (2) a concise statement of the factual basis of the claim, including the date, time, place and circumstances of the act, omission or event complained of; (3) the name and address of any public officer or employee in volved, if known; (4) a concise statement of the nature and the extent of the injury claimed to have been suffered; and (5) a statement of the amount of monetary damages that is being requested.” K.S.A. 2006 Supp. 12-105b(d)
In applying this statute, we note that the primary purpose of K.S.A. 2006 Supp. 12-105b “is to insure that a municipality is made aware of a claim against it and that the municipality has ample time to investigate the claim before being sued on that claim.” Smith v. Kennedy, 26 Kan. App. 2d 351, 361, 985 P.2d 715, rev. denied 268 Kan. 888 (1999); see also Bell v. Kansas City, Kansas, Housing Authority, 268 Kan. 208, 210, 992 P.2d 1233 (1999) (purpose of K.S.A. 12-105b is to allow municipalities to consider and settle meritorious claims without litigation by requiring claimants to present claims ahead of time so governing body can malee informed and intelligent decision on its course of conduct).
Neither Barber County nor Moore Township challenge die sufficiency of the notice with respect to the factual basis included in the notice or the identification of the public officer or employee involved. Thus, we will consider only whether the notice adequately described the name and address of the claimant and claimant’s attorney, the nature and extent of the injury, and the itemization of damages.
Name and address of claimant and claimant’s attorney
Under the heading “Claimant,” the notice lists only Continental Western Insurance Company. DCI recognizes the notice did not specifically identify DCI as the claimant, but points out that the notice does mention that DCI sustained damages and suggests the court must look to substance over form.
While DCI’s “substance over form” argument might be persuasive if die notice had identified DCI as a claimant in some manner at any point in the notice, it did not. Rather, the notice consistently refers to the damages and recovery sought by Continental Western Insurance Company, referring to DCI only in passing as necessary to explain the facts.
The notice simply did not alert Barber County and Moore Township that DCI was a claimant rather than a mere participant in the underlying sequence of events. Moreover, the notice also omits both DCI’s address and the name and address of DCFs attorney.
Under these circumstances, we conclude the notice did not substantially comply with K.S.A. 2006 Supp. 12-105b because it did not identify either the name and address of DCI as a claimant; or the name and address of DCFs attorney.
Nature and extent of claimant’s injury
In its brief, DCI contends the notice’s inclusion of a statement that the “’collision caused extensive damage to Dodge City Implement’s truck and cargo’” was sufficient to substantially comply with the requirement that the notice identify the nature and extent of claimant’s injuiy. While this statement may have been sufficient under other circumstances, DCI has taken the phrase out of context here.
The notice contained a separate heading entitled “Nature and Extent of Injury Suffered.” Significantly, the language cited by DCI was not included in that section. Thus, the notice failed to indicate that DCI suffered any injury upon which it, as a claimant, intended to seek recovery. Moreover, pursuant to the notice, recovery for any injuries received was limited to those stated by the claimant, Continental Western Insurance Company.
Thus, we find the notice failed to substantially comply with K.S.A. 2006 Supp. 12-105b with respect to the requirement that the notice identify the nature and extent of the claimant’s injuiy.
Monetary damages
Finally, DCI challenges the district court’s dismissal of its negligence and negligence per se claims for failure to identify monetary damages, arguing that an exact monetary figure is not necessary to substantially comply with K.S.A. 2006 Supp. 12-105b. However, DCI fails to acknowledge that the notice lacks-any indication that DCI intended to seek recovery in any amount. As Moore Township articulates in its brief, DCFs claims and damages were either liquidated or were not difficult to estimate, and noneconomic damages were not sought, i.e., DCI paid. $3,000,000 to BNSF and suffered $92,313.34 in alleged property damage to its truck and cargo.
Because the notice was lacking one or more of the relevant elements, it was fatally insufficient pursuant to K.S.A. 2006 Supp. 12-105b, and the district court lacked jurisdiction to consider DCFs claims of negligence and negligence per se. See Tucking v. Board of Jefferson County Comm’rs, 14 Kan. App. 2d 442, Syl. ¶ 3, 796 P.2d 1055, rev. denied 246 Kan. 770, (1990).
Accordingly, we conclude the district court properly dismissed DCFs claims for negligence and negligence per se as well as its claim of comparative implied indemnity.
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Briscoe, C.J.:
Defendant Arnold Grimsley appeals the sentences imposed following his guilty pleas to two charges of indecent liberties with a child (K.S.A. 1990 Supp. 21-3503[c]) and one charge of giving a worthless check (K.S.A. 1990 Supp. 21-3707). Grimsley also appeals denial of his motion for sentence modification.
On June 2, 1983, Grimsley pled guilty to one count of giving a worthless check in the amount of $437.10 in case No. 82CR1794, a class E felony. On July 6, 1983, the trial court suspended imposition of sentence for a period of three years subject to certain conditions. Grimsley was ordered to pay costs and fees incurred and to pay restitution in the amount of $437.10. In June 1986, Grimsley agreed to an extension of his probation for three years (from July 6, 1986, to July 6, 1989) so he could pay sheriffs fees. On July 3, 1989, the court again extended probation for one year to allow additional time for payment of the fees.
On July 11, 1989, Grimsley was charged with indecent liberties with a child in case No. 89CR1318 for an act committed between February 19, 1989, and February 20, 1989. On August 11, 1989, Grimsley was again charged with indecent liberties with a child in case No. 89CR1599 for acts committed between July 1, 1986, and September 30, 1988. Grimsley pled guilty to both charges on October 6, 1989.
On November 22, 1989, the trial court revoked suspension of sentence in case No. 82CR1794 and the three cases were consolidated for sentencing. Grimsley was sentenced to concurrent terms of one to five years in case No. 82CR1794, four to fifteen years in case No. 89CR1318, and four to fifteen years in case No. 89CR1599.
Grimsley’s first issue has been resolved by the trial court’s filing of a journal entry nunc pro tunc on January 2, 1991. This journal entry accurately reflects the sentences initially imposed by the court from the bench. Grimsley’s sentences are to run concurrently, not consecutively.
As his second issue, Grimsley contends the trial court was without jurisdiction to either revoke his probation in case No. 82CR1794 or impose sentence because his probationary term had already expired. He argues the maximum probationary period which could be imposed in this case was five years. This period had expired prior to the court’s last extension of his probation and also prior to revocation of his probation. The State argues Grimsley agreed to extend the probationary term and cannot now be heard to complain because it was to his benefit to extend the period and the extension was not unreasonable. We note the benefit to Grimsley was great. His options were either to agree to the extended probationary period or face imprisonment for violation of conditions of his probation.
There is some confusion in the record as to whether the court initially placed Grimsley on probation or imposed a suspended sentence. The original journal entry ordered suspension of sentence for a period of three years. Subsequent court documents referred to Grimsley’s status as a probationer. “Suspension of sentence” is a procedure whereby a defendant is released without imposition of sentence. K.S.A. 21-4602(2). “Probation” refers to the release of a defendant after imposition of sentence without imprisonment. K.S.A. 21-4602(3). See State v. Ashley, 236 Kan. 551, 552, 693 P.2d 1168 (1985). To address the issue raised in this appeal, the distinction becomes irrelevant. For convenience, we will describe Grimsley as a probationer.
Whether the trial court had jurisdiction to revoke Grimsley’s probation is resolved by K.S.A. 21-4611 and K.S.A. 22-3716. K.S.A. 21-4611 provides in pertinent part:
“(1) The period of suspension of sentence, probation or assignment to community corrections fixed by the court shall not exceed five years in felony cases or two years in misdemeanor cases, subject to renewal and extension for additional fixed periods not exceeding five years in felony cases, nor two years in misdemeanor cases. In no event shall the total period of probation, suspension of sentence or assignment to community corrections for a felony exceed the greatest maximum term provided by law for the crime.” (Emphasis added.)
K.S.A. 22-3716(1) provides in part:
“At any time during probation, assignment to a community correctional services program or suspension of sentence, the court may issue a warrant for the arrest of a defendant for violation of any of the conditions of release or assignment or a notice to appear to answer to a charge of violation.” (Emphasis added.)
Grimsley argues these statutes mean what they say — that it is only during the probationary period that a court may revoke probation and the total period of probation cannot exceed the greatest maximum term provided by law for the crime committed. He correctly notes that, when the crime of giving a worthless check was committed in 1982, the maximum term provided by law was five years. K.S.A. 21-4501(e). Grimsley concludes, as a matter of law, the term of his probation expired July 6, 1988, and extension of probation beyond that date was illegal. Grimsley argues an extension beyond that date did not provide the court with jurisdiction to either revoke probation or impose sentence.
In Moody v. Edmondson, 176 Kan. 116, 269 P.2d 462 (1954), Moody pled guilty in 1946 to two counts of failure to support. He was sentenced to two consecutive terms of two years’ imprisonment and was immediately “paroled.” The parole provision of the statute under which Moody was charged allowed the court to parole a defendant, directing the defendant to pay a certain sum periodically “for a term not exceeding two years.” 176 Kan. at 119. The general parole statute in effect at that time provided the court with jurisdiction over a parolee for a period of ten years, which conflicted with the specific parole provision included in the nonsupport statute. Moody’s parole was revoked in 1951. Moody’s petition for a writ of habeas corpus was sustained. The Supreme Court concluded the more specific nonsupport statute should control when addressing the court’s jurisdiction to revoke Moody’s parole. The court held the trial court was without jurisdiction to revoke Moody’s parole beyond the two-year period following his plea and affirmed Moody’s release. Thus, Moody stands for the proposition that a court has no jurisdiction to revoke probation when the probationary period terminates prior to issuance of an arrest warrant or filing of a complaint seeking revocation of probation.
Grimsley’s agreement to extend probation beyond the maximum term provided by law has no legal effect. An illegal sentence is defined as one imposed by the court without jurisdiction or one which does not conform to the statutes. State v. Thomas, 239 Kan. 457, 460, 720 P.2d 1059 (1986). A court may correct an illegal sentence at any time. K.S.A. 22-3504(1). Pursuant to 22-3716(1), revocation must occur during the probationary term. This is a jurisdictional requirement which cannot be waived by estoppel or agreement of the parties.
In State v. Christensen, 166 Kan. 152, 199 P.2d 475 (1948), counsel for the defendant and for the State agreed the question of penalty in a first-degree murder case would not be submitted to the jury for decision, although the statute then in effect required determination of penalty by the jury if there was a jury trial (G.S. 1935 21-403 [1947 Supp.]). The Supreme Court reversed and remanded for new trial after concluding the trial court had erred in following counsels’ agreement in derogation of the statute. The court recognized there are many constitutional rights which a criminal defendant may waive, but even with agreement by the State, defendant may not define the jurisdiction of the court or determine the law.
“The power of public officers and the jurisdiction of courts are to be found in the statutes and may not be conferred by stipulation or otherwise [citations omitted]. Parties to litigation cannot validly stipulate as to what the law is, how a statute is to be construed, or what its effect is [citations omitted], at least as to matters of public concern [citations omitted]. ‘The proper administration of the criminal law cannot be left merely to the stipulation of the parties.’ [Citation omitted.] Even in civil actions it is held that the parties may not stipulate for a determination in a manner contrary to the statutes. [Citation omitted.]” 166 Kan. at 157.
Several recent decisions in civil cases have reaffirmed the basic premise that the parties may not by stipulation invest the court with jurisdiction over the subject matter of a cause which it would otherwise not have. See, e.g., In re Petition of City of Shawnee for Annexation of Land, 236 Kan. 1, 16, 687 P.2d 603 (1984); State ex rel. Secretary of SRS v. Stephens, 13 Kan. App. 2d 715, 717, 782 P.2d 68 (1989).
Grimsley could not agree to an illegal sentence. He could not by agreement create jurisdiction for the court to act beyond the period set forth in the statutes. His agreement to extend his probationary term beyond the maximum period allowed by law is a nullity. To say as the State does in this case that the court had jurisdiction to act because the defendant voluntarily submitted himself to the court’s jurisdiction confuses subject matter jurisdiction with in personam jurisdiction. The substantive jurisdiction of the court, its power to adjudicate, cannot be created by waiver or consent; on the other hand, want of jurisdiction of the person or thing may be waived. In re Martinez, 241 F.2d 345, 348 (10th Cir. 1957).
As his third and final issue, Grimsley contends the trial court abused its discretion in imposing terms of incarceration in excess of the minimum without specifically addressing the sentencing factors enumerated in K.S.A. 21-4606. Grimsley also argues, the trial court abused its discretion in refusing to modify the sentences imposed after receiving the State Reception and Diagnostic Center (SRDC) report.
A sentence within the limits prescribed by law will not be disturbed on appeal absent a showing of an abuse of discretion, unless it is the result of partiality or prejudice. State v. Gibson, 246 Kan. 298, 304, 787 P.2d 1176 (1990). An abuse of discretion is shown only where no reasonable person would take the view adopted by the court. State v. Griffin, 246 Kan. 320, 326, 787 P.2d 701 (1990). The sentences imposed are within the statutory limits and Grimsley does not contend they were the result of partiality or prejudice. Rather, he contends the trial court erred in not considering the factors enumerated in 21-4606 in fixing his minimum term of imprisonment.
The Supreme Court has consistently stated it is the “better practice” for sentencing judges to give a detailed statement of the factors listed in 21-4606 when imposing sentences that exceed the minimum. However, failure to do so does not necessarily constitute an abuse of discretion as each case must be considered on its own facts. State v. McGlothlin, 242 Kan. 437, 438, 747 P.2d 1335 (1988). A sentencing court does not abuse its discretion when it does not specifically mention the statute but incorporates a presentence investigation (PSI) report which has addressed each of the seven enumerated factors. See State v. Webb, 242 Kan. 519, 531, 748 P.2d 875 (1988).
In sentencing Grimsley, the court did not refer to the PSI report or the sentencing factors listed in 21-4606. However, in its journal entries imposing sentence, the court did state it had been advised of the PSI report. Grimsley argues this is insufficient to show the court considered the statutory factors in 21-4606.
Grimsley has three prior felony convictions. In cases No. 89CR1318 and No. 89CR1599, Grimsley admitted molesting young boys. One young boy was molested almost daily for over two years. Undoubtedly, Grimsley’s criminal acts have caused extensive emotional and psychological harm to the victims. There is no indication that anyone induced or facilitated Grimsley’s acts and there was no provocation for these acts. Grimsley presented no grounds tending to excuse or justify his criminal conduct and no amount of restitution could compensate the victims for the injuries sustained. Although the court did not specifically mention 21-4606, it had before it the PSI report and had heard the facts developed at the plea hearing and the arguments of counsel. From all of these sources, the court obtained information relevant to the 21-4606 factors. No abuse of discretion has been shown.
In denying Grimsley’s motion to modify sentence, the trial court, “after reviewing the file, the defendant’s past criminal history, defendant’s SRDC Report, the facts of this case and being duly advised in the premises finds that defendant’s Motion To Modify shall be overruled.” Grimsley argues it was an abuse of discretion not to modify his sentence to a minimum term because a minimum term is compatible with public safety, his individual needs, and the severity of his crime.
K.S.A. 1990 Supp. 21-4603(4)(a) provides the trial court with discretionary authority to modify a sentence within 120 days of its imposition. To establish error, the defendant must show the trial court abused its discretion in refusing to modify the sentence. Again, an abuse of discretion is shown only where no reasonable person would take the view adopted by the court. Griffin, 246 Kan. at 326.
Here, Grimsley pled guilty to two counts of indecent liberties with a child in exchange for the State’s promise not to bring charges of indecent liberties involving six other young boys. Neither the PSI report nor the SRDC report were favorable to Grimsley and both reports recommended incarceration for the crimes. The trial court did not abuse its discretion in denying sentence modification.
Grimsley’s sentence imposed in case No. 82CR1794 is vacated; his sentences imposed in cases No. 89CR1318 and No. 89CR1599 are affirmed. | [
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Larson, J.:
Martha J. Loewen appeals the trial court’s decision affirming the vote of the Board of Education of Unified School District No. 411, Marion County, Kansas, (Board) not to renew her teaching contract.
Loewen has taught kindergarten in the Goessel school system since 1967. Her teaching experience dates back to 1949, with a ten-year interruption devoted to her family. She enjoyed tenure and satisfactory evaluations until the 1986-87 school year.
In the fall of 1986, Goessel principal Perry McCabe became concerned about Loewen’s teaching methods and her handling of a large kindergarten class. He was contacted by parents with similar concerns. After evaluations and critiques, McCabe decided Loewen was an ineffective teacher who required assistance because of her deficiencies in organization, discipline, variety of activities, and motivation.
In April of 1987, Superintendent Robert Van Arsdale and McCabe met with Loewen and informed her that her contract would be renewed but that she would be under an intensive assistance plan and required to submit to a physical and mental examination. The plan consisted of 32 objectives with numerous suggestions as to how each should be achieved.
Dr. Jeri Carroll, professor of elementary and early childhood education at Wichita State University, was hired in the fall of 1987 by agreement of the parties to observe, and make recommendations to assist Loewen. Dr. Carroll made three announced visits and one unannounced visit. After the second and third visits, Dr. Carroll made specific recommendations to the administration and Loewen which were adopted into the plan of assistance in January of 1988.
In March of 1988, the Board decided not to renew Loewen’s contract. Written notice of nonrenewal was served as required by K.S.A. 72-5437. The Board’s decision was based on Loewen’s failure to maintain the requirements of the assistance plan, her failure to implement Dr. Carroll’s suggestions, and an attitude the Board perceived as uncooperative.
Pursuant to K.S.A. 1990 Supp. 72-5438, Loewen requested a due process hearing and a hearing committee was impaneled. Loewen also requested and was granted a more specific statement from the Board of the reasons for nonrenewal. The Board provided a document listing 22 areas in which Loewen was deficient.
A due process hearing was held on January 11, 12, and 13, 1989, with the majority of the hearing panel finding that Loewen should be reinstated because (1) a considered effort was made to build a case against her, (2) a shotgun approach was employed to support the nonrenewal, (3) the reasons given were insufficient, and (4) the Board failed to meet its burden of proof.
One member dissented, concluding the Board had not acted arbitrarily because (1) it had made an effort to work with Loewen, including hiring a consultant to observe and make suggestions, (2) the consultant considered Loewen “inconsistently adequate” and gave her a “D” in teaching, and (3) the witnesses upholding the Board’s decision were more credible because they had spent more time in Loewen’s classroom.
As required by K.S.A. 72-5443, the Board considered the opinions of the hearing panel and accepted briefs from both parties. In July 1989, the Board divided up the hearing panel transcripts and briefs for review. An executive session was held in early August; Board members; Superintendent Van Arsdale; McCabe, who was in the process of being replaced as the school’s principal; the new principal, Chet Roberts; and the Board’s attorney were present. At the next regularly scheduled Board meeting on August 14, 1989, the Board voted unanimously to affirm its earlier decision to nonrenew Loewen’s contract.
This action was communicated to Loewen by certified letter. She appealed to the district court. K.S.A. 72-5443 and 60-2101(d). Depositions of the Board members and administrators were taken, and a pretrial conference order was entered in February of 1990. In June of 1990, the trial court found that Loewen was not denied due process; that she had received a fair and impartial hearing, that evidence outside the record was not considered, and that substantial evidence existed to justify the nonrenewal. The decision nonrenewing Loewen’s contract was affirmed.
Loewen appeals, arguing that she was denied due process and that the Board’s decision was arbitrary and capricious and not supported by the evidence.
Our scope of review is set forth in Butler v. U.S.D. No. 440, 244 Kan. 458, 463-64, 769 P.2d 651 (1989), where Justice Herd summarized the duty of an appellate court in the following manner:
“K.S.A. 1988 Supp. 60-2101(d) gives the district court jurisdiction to review the Board’s decision. The district court may not hear the case de novo, but is limited to deciding whether: (1) The Board’s decision was within the scope of its authority; (2) its. decision was substantially supported by the evidence, and (3) it did not act fraudulently, arbitrarily, or capriciously. In Gillett v. U.S.D. No. 276, 227 Kan. 71, 75, 605 P.2d 105 (1980), we held:
“ ‘In determining cases involving the dismissal or nonrenewal of a teaching contract, the courts are obligated to consider the rights of the teacher, the rights of the school board, and the rights of the school children to receive a quality education in a proper school atmosphere. In every such case, the challenge presented to the court is to provide a decision, fair and equitable both to the teacher and to the school board, With a minimum amount of disruption of the educational opportunity for the children.’
“We held in Million v. Board of Education, 181 Kan. 230, Syl. ¶ 1, 310 P.2d 917 (1957), that, while the Teacher Tenure Act protected tenured teachers from ‘unjust dismissal of any kind — political, religious or personal,’ it ‘does not confer special privileges or immunities upon them to retain permanently their positions or salary, nor permit their interference with the control or efficient operation of the public-school system.’
“Where the district court’s decision is appealed, we review the Board’s decision as though the appeal has been made directly to us, and we are subject to the same limitations of review as the district court. Kansas State Board of Healing Arts v. Foote, 200 Kan. 447, 451, 436 P.2d 828 (1968).”
See O’Hair v. U.S.D. No. 300, 15 Kan. App. 2d 52, 56-58, 805 P.2d 40 (1990).
Under our due process procedure for contract termination of teachers, K.S.A. 72-5436 et seq., a nonrenewed tenured teacher has the right to a due process hearing before a three-person hearing committee with each party represented by counsel who may examine and cross-examine witnesses. The teacher has the specific right to testify and receive a fair and impartial decision based on substantial evidence. K.S.A. 72-5439.
If the hearing committee does not reach a unanimous decision, “the board shall consider the opinion, hear oral arguments or receive written briefs from the teacher and a representative of the board, and decide whether the contract of the teacher shall be renewed or terminated.” K.S.A. 72-5443(c).
In Gillett v. U.S.D. No. 276, 227 Kan. 71, 77-78, 605 P.2d 105 (1980), Justice Prager opined:
“[T]he purpose of the due process hearing is to inquire into the reasons for the dismissal or nonrenewal of the teacher and to determine whether or not the evidence presented establishes good cause within the spirit and purpose of the teacher tenure statutes. . . .
“The purpose of the due process hearing granted a teacher by statute is to develop the grounds that have induced the board to give the teacher notice of its desire to discontinue her services, and to afford the teacher an opportunity to test the good faith and sufficiency of the notice. The hearing must be fair and just, conducted in good faith, and dominated throughout by a sincere effort to ascertain whether good cause exists for the notice given.”
More often, as in this case, the allegations of due process violations come not from the hearing committee stage, but when the Board reconsiders its decision in light of a split decision by the hearing committee.
Loewen argues that the Board’s conduct denied her due process in the following manner: (1) by relying on evidence outside the record; (2) by relying on reasons for nonrenewal not recorded in the Board’s notice of nonrenewal; and (3) by inviting its superintendent and principal, who was the primary witness against the teacher to be present during the Board’s deliberations. Loewen further argues that certain board members were demonstratively biased against her.
It is clear that Loewen’s last contention has no merit. Substantial evidence and the depositions of Board members reveal a thorough discussion of the hearing committee transcript and a conscious attempt to consider the ramifications of their decision on Loewen personally, the rights of the schoolchildren to receive a quality education with a minimum amount of disruption, and their own obligations.
Loewen’s remaining contentions, however, must be discussed in detail.
Loewen relied heavily on language of Haddock v. U.S.D. No. 462, 233 Kan. 66, 661 P.2d 368 (1983), which is similar to our case. There, the school board voted to nonrenew Haddock’s contract and Haddock requested a due process hearing. The hearing committee voted two to one to renew Haddock’s contract. The board rejected the hearing committee’s report. The trial court reversed the board, holding that the decision was not supported by substantial evidence and that Haddock’s due process rights had been violated. The Supreme Court agreed that the procedure employed by the school board in Haddock violated due process.
In Haddock, three of the board members had conducted their own investigation into the facts. They interviewed witnesses and sampled public opinion about the case. A former board member presented a letter derogatory to Haddock, which was circulated among the current Board members. The Supreme Court found these actions to be a violation of due process and held: “Here, Mr. Haddock had no opportunity to hear the evidence gathered during the independent investigations or to cross-examine the secret witnesses to test their credibility. This procedure was fundamentally unfair. We hold the Board violated Mr. Haddock’s right to due process.” 233 Kan. at 77.
Justice Herd in Haddock recognized the difficult role of a school board and went on to state:
“We recognize a board of education has a dual role as both an administrator and a quasi-judicial body. Regardless of the inherent difficulty in the conflict of these roles, the teacher’s entitlement to a ‘fair and impartial decision’ (K.S.A. 72-5439[/]), requires that the Board strive for a high standard of detached objectivity when performing its role as a quasi-judicial body. At tainment of this standard demands the Board abandon its role as prosecutor after the due process hearing and make a good faith review of its previous tentative decision in light of the case presented to the hearing committee. Accordingly, board members should refrain from discussing the case with any persons other than fellow board members and counsel from the date the hearing is completed until the Board renders its final decision.” 233 Kan. at 77-78.
Here, the depositions of the Board members showed Loewen’s situation was extensively discussed with patrons after the close of the due process hearings. The Board acknowledges these contacts but contends this is not a due process violation and in its brief suggests that Board members cannot live in a vacuum and ignore or refuse to listen to their patrons.
Several Board members who testified to outside discussions between the due process hearing and the time of the final decision by the Board all declined to identify the people they talked to and said they did not search out the comments but were contacted by constituents. Board member Lynel Unrau admitted that concerns relayed to him by patrons generally supported Dr. Carroll's report, but in response to his own counsel’s questions, he stated:
“Q. What amount, if you can give an opinion, or a percentage of your decision would have been based on statements made by patrons received since the due process hearing?
“A. You’re talking about in between the due process hearing and the August 14 decision?
“Q. Yes.
“A. Oh, 1 would say thirty percent.” (Emphasis added.)
Board member Dennis Flaming stated that he discussed Loewen’s case with parents in the district after March 28, 1988, “[t]o try to get as much information as possible” and responded as follows to questioning:
“Q. It would seem to follow that inasmuch as you voted initially to nonrenew and finally to nonrenew, that you relied on these conversations that you had with the parents in the community and patrons in the community concerning the accuracy of the reasons for nonrenewal; fair statement?
“A. That is a fair statement.
“Q. You indicated that other board members had shared with you similar experiences in executive sessions?
“A. Similar experiences.”
Board member Diana Schmidt testified that although parents and patrons came to her with concerns, generally negative toward Loewen, and that she relied on these visits to verify reasons for nonrenewal, this information did not affect her final decision.
Board member Juanita Stone testified that she continued to receive input from parents after the due process hearing although she indicated receipt of comments favorable to Loewen. She testified that she talked with a teacher who attended the due process hearings who “could not believe that the decision had gone the way it did.”
Board members stated they were not a rubber stamp board, received no direct recommendations from their superintendent and principal, and often did not follow the superintendent’s recommendations when received.
This testimony cannot counteract or balance the clear existence of facts which are directly contrary to and in violation of the Supreme Court’s clear prohibition in Haddock, where it was stated: “A teacher whose contract is being nonrenewed is entitled to be judged solely on the reasons enunciated in the notice of nonrenewal. Due process requires no less.” 233 Kan. at 78.
The reasons that such conduct is violative of due process is that the teacher has “no opportunity to hear the evidence gathered during the independent investigations or to cross-examine the secret witnesses to test their credibility.” 233 Kan. at 77.
Although some members testified the statements of the unknown parents and patrons were not refied upon, others say these items were discussed during the executive session. This violation is not negated by the fact that the board did not initiate the conversations as did the Haddock board. It may be difficult for an electorate to understand why board members will not discuss school business with them, but in order to maintain the required “high standard of detached objectivity” when performing a quasi-judicial role, board members must inform school patrons their position precludes any direct discussion of a nonrenewal controversy once the due process hearing is held.
Loewen further contends the presence of the superintendent and the principal during the Board’s deliberations violated her right to due process. There were actually three administrators present rather than the two she complains of, because former principal McCabe as well as new principal Roberts were in the executive session in addition to Superintendent Van Arsdale.
Our Kansas Supreme Court held in Kelly v. Kansas City, Kansas Community College, 231 Kan. 751, 760, 648 P.2d 225 (1982), that the school board being “made acquainted with the record through Board discussion, staff briefing and argument of counsel” (emphasis added) was not a due process violation. We followed Kelly in O’Hair v. U.S.D. No. 300, 15 Kan. App. 2d 52, 805 P.2d 40 (1990), wherein we stated:
“We believe that the better procedure might be to require the absence of the superintendent once such questions as the Board might have were answered, but we are not prepared to hold that his presence during the executive session where the hearing committee’s opinion, the record, and the evidence were considered amounted to a due process violation requiring reversal of the Board’s, actions.” 15 Kan. App. 2d at 65.
The Board contends that because testimony indicated the Board made an independent decision and neither Van Arsdale nor McCabe were asked for their opinions, their presence had no effect on due process. We do not agree. McCabe was not only Loewen’s immediate supervisor and chief witness against her, his status as principal had either changed or was in the process of changing. The new principal, Roberts, had no connection with or justification to be in the executive session. Neither McCabe nor Roberts could properly contribute to the Board’s discussion. McCabe’s opportunity to testily ceased at the end of the due process hearing and his very presence raises questions about the proceedings.
When acting as a quasi-judicial body, the Board is not empowered to gather additional information beyond that presented to the hearing committee. It must comport with the requirements of due process, and McCabe’s and Roberts’ presence severely damage the elements of “fundamental fairness” or “detached objectivity” that the Board had the obligation to establish. See Haddock, 233 Kan. at 77-78; Bogart v. Unified Sch. Dist. No. 298 of Lincoln Cty, 432 F. Supp. 895, 905 (D. Kan. 1977).
Colorado addressed this issue in deKoevend v. Bd. of Educ. of West End School, 688 P.2d 219 (Colo. 1984), where the Colorado Supreme Court concluded that the teacher’s right to due process was violated when the school board, in retiring to consider the hearing officer’s findings and recommendations, permitted the school superintendent and principal to be present during its deliberations. The court stated:
"The school superintendent initiated the charges in this case and testified to the complaints he received about deKoevend’s conduct and deKoevend’s failure to follow directions relating to his teaching responsibilities. The principal gave detailed testimony about each of the respective charges brought against deKoevend. It is undisputed that both witnesses had a substantial interest in the outcome of the board’s deliberations. Although the record does not show that these witnesses actually contributed to the final decision of the board, their presence during the board’s deliberative session, at the very least, was such as to substantially undermine the appearance of impartiality in connection with the board’s statutory review of the hearing officer’s findings and recommendation and, under the particular circumstances of this case, was sufficient to overcome the presumption of regularity attendant to an administrative proceeding.” 688 P.2d at 228.
In Occhipinti v. Bd. of S. Dirs., Old Forge S.D., 48 Pa. Commw. 56, 408 A.2d 1189 (1979), the nonrenewed teacher complained that the superintendent who testified against her was present for the school board’s deliberations. The court, quoting Department of Education v. Oxford Schools, 24 Pa. Commw. 421, 356 A.2d 857 (1976), held that the superintendent, “[hjaving chosen to wear the hat of an adverse witness, . . . cannot then don the hat of a nonvoting Board member even though otherwise entitled to do so. We cannot allow such an elevation of form over substance, regardless of the good faith or integrity of those involved.” 48 Pa. Commw. at 59.
Not all jurisdictions have held, as has Kansas, that allowing a superintendent to be present during school board deliberations is not a due process violation; however, the reasoning of both the Colorado and Pennsylvania cases applies more strongly to the presence of a previous, existing, or future principal. Our court’s opinion in O’Hair, 15 Kan. App. 2d at 65, although suggesting a superintendent should vacate the executive session once the required briefings were concluded, will not be extended to allow the presence of antagonistic or unnecessary parties to the executive session. Not only is such presence questionable under our open meetings concept, it smacks of unfairness to the teacher whose rights are being considered.
Finally, Loewen complains the Board relied on reasons for nonrenewal not recorded in the Board’s notice for nonrenewal, which were expanded greatly by the more specific statement requested by Loewen and furnished by the Board. Based on the Board’s decision, we cannot tell whether this allegation has merit.
The motion submitted, seconded, and carried at the Board’s August 14, 1989, meeting reads as follows:
“After a review by the Board of Education U.S.D. 411 of the hearing panel’s majority and dissenting opinions, the three volumes of testimony, and the briefs submitted to the Board of Education by the teacher and the Board’s representative, I move that the Board of Education U.S.D. 411 affirm the decision of March 29, 1988, for termination of the teaching contract of Martha Loewen.”
K.S.A. 72-5443(c) requires only that the Board “decide whether the contract of the teacher shall be renewed or terminated.” In Gillett v. U.S.D. No. 276, 227 Kan. 71, 605 P.2d 105 (1980), the teacher vigorously objected to the failure of the school board to make specific findings of fact and conclusions of law to justify the overruling of the hearing committee’s recommendations. The Gillett court held:
“We believe that the better procedure in all school termination cases is for a school board to either adopt the findings of the hearing committee or, if it cannot accept them, to make its own findings of fact so that the propriety of its action may be more easily determined upon review in district court. In the present case, however, the controlling facts are undisputed and we cannot find that the teacher involved here was in any way prejudiced by the failure of the school board to make specific findings of fact in rejecting the recommendation of the hearing committee.” 227 Kan. at 80.
Our facts are materially different from Gillett. The facts there were undisputed while practically every material fact in this case is disputed. We may surmise that the Board rejected the testimony of Loewen and her witnesses in favor of the evidence given by McCabe, Carroll, and numerous other witnesses who pointed out Loewen’s lack of teaching attributes, but there is nothing in the record which compels us to so find.
Loewen raises the following as an issue for our consideration: “Was the decision of the Board of Education nonrenewing the employment contract of Martha Loewen supported by substantial evidence?”
In her brief she cites the quote from Gillett set forth previously herein but makes no lack of substantial evidence argument in claiming the decision is incompatible with due process. A detailed review of the record indicates that if certain witnesses are deemed more credible, the highly conflicting nature of the testimony could justify the decision of either the majority members or the dissenting member of the hearing panel as well as the conclusion of the Board.
It is ironic that while K.S.A. 72-5443 requires the hearing committee to set forth its findings of fact in its written recommendation, the board is not specifically required to do so. Although findings of fact were not compelled in Gillett because of undisputed controlling facts, the basis for requiring findings of fact in cases such as this one is established.
In Gillett, 227 Kan. at 80, Justice Prager stated:
“We agree that specific findings of fact may be indispensable in some cases for a reviewing court to determine whether there was substantial evidence to support an administrative agency’s order. In Cities Service Gas Co. v. State Corporation Commission, 201 Kan. 223, 440 P.2d 660 (1968), this court noted that although no method of insuring against arbitrary action by an administrative agency has yet been found, the nearest approach is to require that findings of fact be made. When a conclusion must be buttressed by findings of fact for which there is supporting evidence, it becomes more difficult to conceal arbitrary action.”
The existence of evidence, if believed by the finders of fact, showing Loewen to be an inadequate teacher and our obligation to consider “the right of school children to receive a quality education in a proper school atmosphere” requires that this case be remanded for a factual determination; we point out that a factual basis also exists which would compel Loewen’s reinstatement. By our decision herein we express no opinion as to which factual finding should be made.
We hold that when the controlling facts are disputed, as here, meaningful review cannot be made of a school board’s decision without it either adopting the findings of the hearing committee or making its own specific findings upon which its conclusion is deemed to be justified.
We will not possibly jeopardize the educational opportunities of the schoolchildren and order reinstatement as Loewen claims Bogart, 423 F. Supp. 895, and Coats v. U.S.D. No. 353, 233 Kan. 394, 662 P.2d 1279 (1983), requires. Neither of those cases had a valid factual issue of the teacher’s ability to competently provide educational opportunities as exists herein.
Nor is reinstatement required as in the recent decision of Unruh v. U.S.D. No. 300, 245 Kan. 35, 37, 775 P.2d 171 (1989), because there the reasons for nonrenewal were not supported by substantial evidence presented to the school board. In the present case, the trial judge concluded that the Board’s decision not to renew was supported by substantial evidence.
Because of the procedural due process violations set forth herein, the decision of the trial court is reversed.
This matter is remanded to the trial court with instructions that it remand the case to the Board for due process considerations in accordance with this opinion. The Board is directed to make findings of fact upon which its decision is deemed to be justified. The trial court is also directed to determine Loewen’s damages resulting from the procedural due process violations set forth herein. | [
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Rulon, J.:
Arletha Miller appeals her conviction of aggravated failure to appear. K.S.A. 21-3814.
Principally, we are asked to decide if the district court erred in ruling that K.S.A. 21-3814 applies to failure to appear at a probation revocation proceeding. For the reasons stated below, we reverse and remand with directions.
On June 24, 1987, Arletha Miller pleaded guilty to one count of felony theft. As a result of the plea, Miller was sentenced to a term of incarceration of one to two years, but was ultimately placed on probation. On October 18, 1988, the State moved to revoke Miller’s probation as a result of her failure to pay court costs and restitution. Miller was arrested on December 12, 1988, on the basis of the probation violations. Bond was set at $2,000 cash or surety, and Miller posted that bond on December 15, 1988. Miller was ordered to appear on January 3, 1989, for a hearing on the probation revocation. She failed to appear, and the court issued a bond forfeiture and a bench warrant for her arrest.
Later, the State filed the present action, charging Miller with aggravated failure to appear at her probation revocation hearing. Subsequently, she was arrested on August 5, 1989.
Ultimately, Miller filed a motion to dismiss the charge of aggravated failure to appear. After noting the Kansas appellate courts had not interpreted K.S.A. 21-3814, the district court denied Miller’s motion to dismiss.
The district court found Miller guilty and she appealed.
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 thirty (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, or willfully incurring a forfeiture of an appearance bond and failing to surrender oneself within thirty (30) days after his conviction of a felony has become final by one who has been released on an appearance bond by any court of this state.
“Aggravated failure to appear is a class E felony.”
Miller argues that K.S.A. 21-3814 is not applicable under the present facts. She argues that the statute requires an underlying felony before it can be invoked, and that her felony conviction for theft ended when she was placed on probation. Further, she argues that, because probation is quasi-civil in nature and not part of the criminal proceeding, the felony theft conviction cannot be used as the underlying felony. In essence, she argues the statute only applies to those persons charged with a felony who have not yet been convicted and those who have been convicted of a felony but have failed to appear for sentencing.
The State argues that the statutory language “charged with a felony” should not be interpreted as narrowly as Miller requests. The State argues that the language includes those persons already convicted, including those who are serving a portion of their sentences on probation.
“Interpretation of a statute is a question of law, and it is the function of the court 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).
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible.” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
See Watkins v. Hartsock, 245 Kan. 756, 759, 783 P.2d 1293 (1989).
“When a penal statute is questioned, the court is required to strictly construe the act in favor of the accused.” State v. Magness, 240 Kan. 719, 721, 732 P.2d 747 (1987); see State v. Trudell, 243 Kan. 29, 34, 755 P.2d 511 (1988); State v. Cole, 238 Kan. 370, 372, 710 P.2d 25 (1985). “The rule of strict construction concerning penal statutes is subordinate to the rule that judicial interpretation must be reasonablé and sensible to effectuate legislative design and the true intent of the legislature.” State v. Carmichael, 240 Kan. 149, 159, 727 P.2d 918 (1986) (citing State v. Fowler, 238 Kan. 213, 215, 708 P.2d 539 [1985]).
Because Miller was released on bail pending disposition of the motion for revocation, a review of the Kansas bail statutes is both appropriate and helpful to a resolution of the issue before us. The extent of the district court’s authority to grant bail to a defendant is governed by statute. These statutes, K.S.A. 22-2801 et seq., only provide for release of a defendant on bail in three circumstances. K.S.A. 1990 Supp. 22-2802 allows the release of the defendant prior to trial. K.S.A. 22-2804 allows release of the defendant after conviction but before sentencing. K.S.A. 22-2804 also allows the defendant to post bond after conviction while appeal is pending. Essentially, bond can be posted in the post-charge/pretrial setting and in the post-conviction/presentence or appeal pending setting.
The breakdown of the bond statutes into pre- and post- conviction coincides with the language of the aggravated failure to appear statute. A defendant can be found guilty of aggravated failure to appear if the defendant has failed to appear and has been “charged with a felony.” K.S.A. 21-3814. This language applies to the post-charge/pretrial instance. However, this language does not apply post-conviction because the second portion of K.S.A. 21-3814 covers that phase of the criminal proceeding.
Under the second portion of the statute, the defendant may be guilty of aggravated failure to appear if the defendant fails to surrender within 30 days after conviction. This would seem to include the phase of post-conviction/presentence or appeal pending. In one case, bond would be used to assure the defendant’s presence at sentencing and, if sentenced, to assure defendant reported to jail at the proper time. In the other case, bond would be used to assure the defendant surrenders if the conviction is affirmed on appeal.
We now turn to the specific issue before us: whether K.S.A. 21-3814 applies to failure to appear at a probation revocation hearing. It is clear that a “[probation revocation ... is not a stage of a criminal prosecution.” Gagnon v. Scarpelli, 411 U.S. 778, 782, 36 L. Ed. 2d 656, 93 S. Ct. 1756 (1973). One court has termed a revocation proceeding as “an administrative summary proceeding growing out of a privilege that was granted [the defendant] by the lower court when the suspended sentence and probation was granted. ” Williams v. State, 409 So. 2d 1331, 1333 (Miss. 1982).
This court has viewed revocation proceedings in the following manner:
“The purpose of a probation revocation hearing is not to punish a criminal for violation of the law, but rather to determine whether he has violated the conditions of probation. The court’s authority to revoke probation does not depend upon whether defendant’s probationary conduct is criminal. [Citation omitted.] Rather, the function of the court at the probation revocation hearing is to determine whether to impose or execute a sentence for an offense of which defendant has already been convicted and for which probation was granted. [Citation omitted.]” State v. Quarles, 13 Kan. App. 2d 51, 54, 761 P.2d 317, rev. denied 244 Kan. 740 (1988).
The State seeks to have the aggravated failure to appear statute applied to revocation of probation hearings. In support of its contentions, the State cites two cases.
In Tines v. Hudspeth, 164 Kan. 471, 190 P.2d 867 (1948), the petitioner in a habeas corpus action argued that he could not be extradited from Nebraska to Kansas because he was not “charged with crime” in Kansas. In that case, the petitioner had already been convicted in Kansas. Our Supreme Court held that a “person is ‘charged with crime’ where prosecution has been initiated, pursued to judgment of conviction and sentence has not expired.” 164 Kan. at 477. This language would seem to indicate that the language in K.S.A. 21-3814, “charged with a felony” should be applied to those instances when sentence has not yet expired.
The application of Tines is somewhat questionable for several reasons. Although the Tines court interpreted “charged with crime” as including serving of the sentence, the court does not mention anything regarding probation. Further, interpreting the language of K.S.A. 21-3814 “charged with a felony” to include post-conviction instances would negate the second part of K.S.A. 21-3814 which specifically covers these instances. Finally, the decision predates Gagnon v. Scarpelli, 411 U.S. at 782, in which the United States Supreme Court held that probation revocation “is not a stage of a criminal prosecution,” and the Kansas Supreme Court’s decision in State v. Dubish, 236 Kan. 848, 851, 696 P.2d 969 (1985), in which the court held: “The final judgment in a criminal case is the sentence and, by placing the defendant on probation, the trial court does not affect the finality of the judgment.” See also K.S.A. 21-3814 (“failing to surrender oneself within thirty (30) days after his conviction of a felony has become final . . .”) (emphasis added).
Next, the State cites State v. McDaniel, 205 Neb. 53, 285 N.W.2d 841 (1979), which arguably may be applicable but does have some significant distinguishing characteristics. McDaniel was convicted and sentenced after pleading guilty to the charge of receiving stolen property. The execution of sentence was delayed, and McDaniel was released on bond. 205 Neb. at 53. When McDaniel failed to surrender himself to the sheriff on the agreed date, he was charged with failure to appear for sentence in violation of Neb. Rev. Stat. § 29-908 (1989). 205 Neb. at 53-54. The Nebraska statute provides: “Whoever is charged with a felony and is released from custody under bail, recognizance, or a conditioned release and willfully fails to appear before the court granting such release when legally required or to surrender himself within three days thereafter, shall be guilty of a class IV felony.” After citing an extradition case in which it was held that an “unsatisfied judgment of conviction still constitutes a ‘charge,’ ” the McDaniel court construed the language “charged with a felony” to include an unsatisfied judgment of conviction. 205 Neb. at 55-56.
McDaniel does not deal with a defendant who was placed on probation. The statute which the Nebraska court was interpreting did not contain language similar to that of K.S.A. 21-3814, which distinguishes “charged with a felony” and “conviction of a felony.” The Nebraska statute did not take into account that sentencing constitutes a final judgment. Finally, McDaniel deals with a delay between sentencing and the time the defendant was to present himself to the sheriff to begin serving the sentence imposed. See also Annot., 63 A.L.R. 4th 1064, § 25[c] at 1132 (discussing other cases where defendant failed to appear to commence incarceration).
Examining the language of K.S.A. 21-3814, we note the statute does not explicitly make an exception for revocation of probation hearings. However, neither does it specifically include failure to appear at these hearings.
We conclude that the district court erred in ruling that K.S.A. 21-3814 applied to the defendant’s failure to appear for a probation revocation hearing. The theft charge against Miller reached final judgment when she was sentenced, and placement of Miller on probation did not affect that finality. That conviction cannot therefore serve as the underlying felony for a charge of aggravated failure to appear. Because a probation revocation hearing is a quasi-civil procedure, failure to appear at such a hearing is not a criminal offense and therefore does not meet the statutory requirement of an underlying felony charge for which the defendant failed to appear. Our reading of K.S.A. 21-3814 can produce no other interpretation. For us to hold that the defendant’s failure to appear for a probation revocation hearing meets the statutory elements of K.S.A. 21-3814, we would be required to engraft language onto this statute which was not included by the legislature.
If the legislature intends to make failure to appear at a probation revocation hearing a criminal offense under K.S.A. 21-3814, this statute must be amended to specifically include such an offense. Under the facts presented and under the language of K.S.A. 21-3814 as it now reads, where defendants fail to appear at revocation proceedings, the court could simply hold that they forfeited their right to present reasons why their probation should not be revoked. Absent such evidence and assuming the State presents evidence, the court could revoke probation and then issue a bench warrant for arrest. Furthermore, the court could also find the defendants in contempt of court for failure to appear when ordered. K.S.A. 20-1201 et seq.
Under the present language found in K.S.A. 21-3814, a person cannot be charged with aggravated failure to appear based on his or her absence at a probation revocation proceeding.
In light of our above discussion, we need not reach the other issue presented.
Reversed and remanded for proceedings consistent with this opinion. | [
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Briscoe, C.J.:
Danny Lamb appeals the dismissal of his petition for a writ of habeas corpus, which he filed pursuant to K.S.A. 60-1501. Lamb was sentenced to a term of 30 years to life imprisonment following his 1972 conviction of a class B felony. His first hearing before the parole board was held in November 1987. He was denied parole and passed for further parole consideration for a period of five years. As a result of this five-year pass, Lamb’s next parole hearing is scheduled for November 1992.
The sole issue presented is whether K.S.A. 1990 Supp. 22-3717(h) applies to Lamb’s 1987 parole denial. K.S.A. 1990 Supp. 22-3717(h), which became effective May 19, 1988, provides in relevant part:
“If parole is denied for an inmate sentenced for a class A or class B felony, the board shall hold another parole hearing for the inmate not later than three years after the denial and shall conduct an annual file review for such inmate. Written notice of such annual file review shall be given to the inmate.”
Lamb argues that, as a result of the amendment, he was entitled to another parole hearing in November 1990, three years after his initial parole hearing when parole was denied. He also argues he is entitled to annual file reviews. The parole board argues 22-3717(h) applies only to parole determinations made after the effective date of the amendment. Under the parole board’s interpretation, Lamb must wait until November 1992 before 22-3717(h) applies to him. Under this interpretation, Lamb would not be entitled to annual file reviews until after his scheduled November 1992 hearing. In short, this court is asked to determine whether the amendment applies retroactively to govern parole denials that occurred before the amendment became effective.
A habeas corpus action is the appropriate procedure for reviewing decisions of the parole board. Swisher v. Hamilton, 12 Kan. App. 2d 183, 185, 740 P.2d 95, rev. denied 242 Kan. 905 (1987). As parole from confinement in a penal institution prior to serving all of an imposed sentence is a privilege, a matter of grace exercised by the parole board, this court’s review of the denial of parole is limited to whether the parole board complied with applicable statutes and whether its action was arbitrary and capricious. K.S.A. 1990 Supp. 22-3710; Swisher, 12 Kan. App. 2d at 185. Neither the district court nor this court has authority to substitute its discretion for that of the paroling authority in granting parole. If error is found in the board’s interpretation and application of statutes, the case must be remanded to the parole board with instructions to conduct a proper hearing pursuant to the applicable statutes and make the proper findings. Swisher, 12 Kan. App. 2d at 185.
The issue presented here is one of statutory construction.
“The fundamental rule of statutory construction is that the purpose and intent of the legislature governs when the intent can be ascertained from the statute. In construing statutes, the legislative intention is to be determined from a general consideration of the entire act. Effect must be given, if possible, to the entire act and every part thereof. To this end, it is the duty of the court, as far as practicable, to reconcile the different provisions so as to make them consistent, harmonious, and sensible. [Citations omitted. ] When the legislature revises an existing law, as here, it is presumed that the legislature intended to make some change in the law as it existed prior to the amendment. [Citation omitted.]” State v. Adee, 241 Kan. 825, 829, 740 P.2d 611 (1987).
The critical issue in this case is whether the legislature intended the amendment to be applied retroactively or prospectively. The retroactive/prospective application of a statute was recently examined in State v. Sutherland, 248 Kan. 96, 106, 804 P.2d 970 (1991). A statute operates prospectively unless its language clearly indicates that the legislature intended it to operate retroactively. An exception to this fundamental rule is that, if the statutory change does not prejudicially affect the substantive rights of the parties and is merely procedural or remedial in nature, it applies retroactively. Sutherland, 248 Kan. at 106. “Thus, the issue becomes whether the statute is substantive criminal law, which either defines a crime or involves the length or type of punishment.” Sutherland, 248 Kan. at 106.
In 1972, when Lamb committed the crime, there was no statutory guarantee as to the frequency with which an inmate would be considered for parole. At that time, 22-3717 provided simply that the parole board could hold parole rehearings “at such intervals thereafter as it may determine” by its rules and regulations. L. 1970, ch. 129, § 22-3717. Indeed, in Swisher, the petitioner contended the parole board had deprived him of his statutory right to a hearing at “intervals” by passing further consideration of parole until his conditional release date. We rejected this contention after concluding the statute vested discretion in the parole board to determine the frequency of parole hearings and did not require any specified interval between parole hearings. Swisher, 12 Kan. App. 2d at 186.
K.S.A. 1990 Supp. 22-3717(h) has changed the “intervals” language of the statute. It is important to note, however, that the legislature changed only the frequency of affording an inmate the opportunity to demonstrate parole suitability. The provision at issue does not alter the criteria by which parole suitability is determined, nor does it change the criteria governing an inmate’s release on parole. Unlike the statute interpreted in Sutherland, 22-3717(h) does not involve modification of length of sentence. Since the change neither “defines a crime” nor “involves the length or type of punishment,” it cannot be deemed substantive. Sutherland, 248 Kan. at 106. A law which provides or regulates the steps by which one who violates a criminal statute is punished is a procedural law. State v. Hutchinson, 228 Kan. 279, 287, 615 P.2d 138 (1980). Clearly, the change incorporated in 22-3717(h) is merely procedural and, thus, applies retroactively.
The legislature is aware of the appellate courts’ established rules of statutory construction and is, therefore, aware that procedural changes in the law operate retroactively. Sutherland, 248 Kan. at 106. K.S.A. 1990 Supp. 22-3717(h) is clearly procedural. Therefore, it is clear the legislature intended the amendment to apply retroactively.
Once it has been determined the legislature knew 22-3717(h) would apply retroactively, we must consider whether it violated the United States Constitution’s ban on ex post facto laws. U.S. Const., art. I, § 10. “[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.” Weaver v. Graham, 450 U.S. 24, 29, 67 L. Ed. 2d 17, 101 S. Ct. 960 (1981). A criminal law disadvantages the offender if it punishes an act not punishable when committed, imposes additional punishment to that then prescribed, aggravates the crime, or alters the legal rules of evidence. Miller v. Florida, 482 U.S. 423, 429, 96 L. Ed. 2d 351, 107 S. Ct. 2446 (1987). Since we have determined the amendment applies retroactively, the question becomes whether the 1988 amendment disadvantages inmates in Lamb’s position.
Prior to enactment of 22-3717(h), there was no statutory guarantee as to the frequency with which an inmate would be considered for parole. The 1988 amendment affords inmates file reviews annually and parole hearings at least every three years. By its very terms, 22-3717(h) operates to Lamb’s advantage by providing for more frequent reconsideration for parole. As applied to this case, Lamb was entitled to another parole hearing in November 1990 and to annual file reviews from November 1988. Thus, there is no ex post facto violation.
Reversed and remanded with directions to the district court to grant Lamb the habeas relief he seeks by requiring the parole board to immediately schedule Lamb for a parole hearing and subsequent annual file reviews pursuant to K.S.A. 1990 Supp. 22-3717(h). | [
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Pierron, J.:
Richard Reyna (plaintiff-appellant) appeals from the trial court’s post-trial judgment finding his lawsuit was frivolous and imposing sanctions pursuant to K.S.A. 1990 Supp. 60-211 and K.S.A. 60-2007.
On September 2, 1988, Reyna, with the assistance of his attorney, Jack Shelton, filed a petition in district court asserting a breach of employment contract claim against the corporate defendant, General Group of Companies, Kansas, Inc., (General) and claims against the individual defendants, Bogle and McDavitt, for fraudulent misrepresentation. Reyna asserted a fraudulent inducement claim against Bogle and McDavitt, the owners of General, stating that they induced him to leave his $3,000 per month job by fraudulently promising to assign him General’s exclusive Kansas City territory, where General’s previous subagent earned more than $10,000 per month. He also asserted a contract claim against General for back wages and damages resulting from General’s alleged breach of their subsequent agreement to assign Reyna two other exclusive territories, and General’s promise to pay him in excess of $2,000 per month.
General is a general agent for the General Warranty Company of California (GWOC) and employs a network of subagents to market vehicle service contracts to automobile dealers. The automobile dealers, in turn, market the vehicle service contracts to their consumers. Purchase of a service contract by an automobile consumer, in effect, extends either the dealer’s warranty or the manufacturer’s warranty on the vehicle, depending on whether the service contract is an OEM (original equipment manufacturer) or non-OEM agreement.
OEM contracts are issued by GWOC but carry the original equipment manufacturer’s name (e.g., Saab) and result from dealings directly between GWOC and the automobile manufacturer. These contracts provide general agents a guaranteed income for servicing the account. Non-OEM service contracts provide the general agents a higher commission than OEM contracts but do not provide a guaranteed income for servicing the accounts. OEM accounts are apparently assigned by G vVOC on a franchise-type basis, which gives a general agent an exclusive right to market OEM service contracts to automobile dealers in a particular area.
The defendants’ answer denied each of Reyna’s material allegations, and the suit proceeded to a jury trial on May 2, 1989. During the trial, the defendants moved for a directed verdict after Reyna introduced all of his evidence except the evidence in support of his claim for punitive damages for fraud. The defendants argued that no credible evidence existed to support Reyna’s fraudulent promises claim regarding exclusive rights to sell vehicle service contracts in Texas or Oklahoma or to support the fraudulent inducement claim. They also argued that the contract issue was ripe for determination by a directed verdict and, even if it was not, there was a complete failure of evidence of Reyna’s claim for wages lost as a result of the breach because, contrary to Reyna’s petition, his tax returns showed that he was employed for at least eight of the nine months remaining in 1987 after the defendants terminated him. Reyna argued that there was at least conflicting evidence on each of these issues and that the trial judge, required to view the evidence in the light most favorable to Reyna, should deny the defendants’ motion. The trial court agreed with the defendants on wage expectancy and granted a directed verdict on that issue, but denied the motion in all other respects.
In doing so, the trial judge noted that the plaintiffs case was weak, commenting that it was “not the most powerful fraud case that ever came along,” and there were “real problems” on the fraudulent inducement claim because the evidence established that Reyna had left his prior employment before beginning his job with General. The judge also noted there was a “real ques tion” in his mind on Reyna’s claim that the defendants fraudulently promised to assign him the Texas territory, but indicated he would “bend that far” for the plaintiff even though Reyna indicated an understanding that the defendants did not have exclusive rights to sell in Texas. The judge’s rationale for allowing this issue to proceed was based upon Reyna’s testimony that the defendants promised him everything would be fine.
The defendants renewed their motion for directed verdict at the close of all the evidence, but the trial judge denied this motion as well.
After the four-day trial, the jury found the defendants did not breach the employment contract nor commit any fraud against Reyna.
On June 9, 1989, the defendants filed a motion for sanctions against Reyna and his attorney, alleging that attorney Shelton failed to send a demand letter to the defendants; that Shelton failed to conduct a reasonable inquiry into the factual basis of Reyna’s claims both prior to, and subsequent to, the filing of the petition; and that the lawsuit had no adequate basis in fact.
The trial court conducted a hearing on the motion on July 31, 1989, and concluded the defendants’ allegations were correct. Accordingly, the trial court imposed sanctions against Reyna and Shelton, jointly and severally, consisting of the total amount of the attorney fees incurred by the defendants, $7,024.
Reyna timely appeals.
The two key issues in this appeal are whether the trial court erred in imposing sanctions and whether the trial court’s findings were adequate to establish that Reyna and Shelton exercised bad faith.
Concerning whether the trial court erred in imposing sanctions, Reyna contends the trial court erred because it had previously denied two defense motions for directed verdict, allowed his punitive damage claim to go to the jury, and instructed the jury on all of the plaintiffs major claims. He argues that these preverdict rulings were grounded on the legal premise that he had introduced substantial evidence to support his claims; the nature of the evidence was such that reasonable minds could differ as to the facts; and it was inconsistent for the trial court to impose sanctions after finding the evidence was sufficient to allow the case to go to the jury. He also argues that the trial judge’s remarks to the parties at the close of the case stating the attorneys did a “good job” are inconsistent with the later imposition of sanctions. The defendants contend no error occurred because the facts clearly established that Shelton failed to investigate Reyna’s allegations before filing the lawsuit. The defendants also contend that the denying of motions for directed verdict does not preclude the imposition of sanctions.
The imposition of sanctions under K.S.A. 1990 Supp. 60-211 and K.S.A. 60-2007 is discretionary with the trial court, and its ruling on sanctions will not be disturbed on appeal absent an abuse of discretion. Cornett v. Roth, 233 Kan. 936, 945, 666 P.2d 1182 (1983). Judicial discretion is abused “only where no reasonable [person] would take the view adopted by the trial court. If reasonable [persons] could differ as to the propriety of the action taken by the trial court then it cannot be said that the trial court abused its discretion.” Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
K.S.A. 1990 Supp. 60-211 provides, in pertinent part:
“Every pleading, motion and other paper provided for by this article of a party represented by an attorney shall be signed by at least one attorney of record in the attorney’s individual name .... The signature of a person constitutes a certificate by the person that the person has read the pleading; that to the best of the persons knowledge, information and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification or reversal of existing law; and that it is not imposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. ... If a pleading, motion or other paper provided for by this article is signed in violation of this section, the court . . . upon notice and after opportunity to be heard, shall impose upon the person who signed it or a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including reasonable attorney fees.” (Emphasis added.)
K.S.A. 60-2007 also allows a trial court to assess attorney fees as part of the costs of an action, and the relevant portion of that statute provides:
“[I]f the court finds that a party, in a pleading, . . . has asserted a claim . . . without a reasonable basis in fact and not in good faith, the court shall assess against the party as additional costs of the action, and allow to the other parties, reasonable attorney fees and expenses incurred by the other parties as a result of such claim .... An attorney may be held individually or jointly and severally liable with a party for such additional costs where the court finds that the attorney knowingly and not in good faith asserted such a claim ... or, having gained knowledge of its falsity, failed to inform the court promptly that such claim . . . was without reasonable basis in fact.” K.S.A. 60-2007(b).
In order to assess attorney fees under K.S.A. 60-2007(b), the trial court must find there was no reasonable basis in fact for the claim when it was asserted and that the claim was asserted in bad faith. Summers v. Montgomery Elevator Co., 243 Kan. 393, 399, 757 P.2d 1255 (1988); Rood v. Kansas City Power & Light Co., 243 Kan. 14, 24, 755 P.2d 502 (1988); Smith v. Dunn, 11 Kan. App. 2d 343, 346, 720 P.2d 1137 (1986).
This court in Smith determined that, under K.S.A. 60-211 and K.S.A. 60-2007, only “willful misuses of the judicial process” could be penalized by the imposition of sanctions. Smith, 11 Kan. App. 2d at 348. Subsequent to the Smith decision, K.S.A. 60-211 was amended by the legislature and the “willful” term was removed from the statute. See L. 1986, ch. 215, § 1. Now the statute provides for sanctions when a “pleading, motion, or other paper . . . is signed in violation of this section.” K.S.A. 1990 Supp. 60-211. As noted above, under this statute a person’s signature on a document to be filed in court is a certificate that the person has read the paper and “to the best of the person’s knowledge, information and belief formed after reasonable inquiry it is well grounded in fact.” K.S.A. 1990 Supp. 60-211. Filing a pleading in court without first conducting a reasonable inquiry and determining that a claim has an adequate factual basis to support it is a violation of the statute.
The fact that a party’s claim is ultimately denied does not, in and of itself, indicate that the claim was frivolous. City of Shawnee v. Webb, 236 Kan. 504, 512, 694 P.2d 896 (1985); Smith v. Dunn, 11 Kan. App. 2d at 346.
In granting the defendants’ motions for sanctions, the trial judge commented that Reyna’s “claim, at least, predominantly, and, perhaps, in its entirety, is, simply, not well-based or pursued in good faith by Mr. Reyna and whatever he told his attorney, and I think the record bears out the state of the evidence as produced in this case to show that.” Although the trial judge’s language is ambiguous on which claim he found to be frivolous, his award of the defendants’ total amount of attorney fees indicates that he concluded all of Reyna’s material allegations were without a basis in fact and were pursued in bad faith.
The first issue to be discussed is whether the trial court’s act of denying two defense motions for directed verdict forecloses imposition of sanctions based upon a finding that Reyna’s lawsuit was frivolous. Reyna essentially argues that the trial judge’s denial of the directed verdict motions constituted a judicial determination that his claims were not frivolous. The defendants argue that the Kansas Supreme Court’s decision in Rood supports the proposition that sanctions are proper even though some valid claims may have been presented to the jury.
Neither party cites any cases directly addressing whether a plaintiffs case which overcomes defense motions for directed verdict can later be found to have been without a reasonable basis in fact. The trial judge was not aware of any, nor have we been able to find any. However, the trial judge concluded that, based upon his understanding of the statutes involved and the decisions in Rood and Summers, overruling motions for directed verdict does not preclude the imposition of sanctions.
In Rood, the Kansas Supreme Court “encourage[d] the Kansas trial courts to impose sanctions ... to protect the litigants from harassment in clear cases of violation of professional duty.” 243 Kan. at 22.
Rood is authority for the proposition that sanctions may be assessed when a frivolous claim is pursued through the legal process. Rood was a personal injury action wherein the plaintiff relied upon res ipsa loquitur to establish the negligence of the defendant. The trial of the suit, resulted in a jury verdict for the plaintiff. 243 Kan. at 15. Despite the plaintiff s lack of knowledge of how the accident could have occurred but for the defendant’s negligence, the plaintiffs attorneys alleged wanton misconduct and pursued a claim for punitive damages up until the time of trial. 243 Kan. at 24. However, at trial, the plaintiffs attorneys did not present any evidence of the defendant’s wanton misconduct for the obvious reason that none existed. 243 Kan. at 24-25. Based upon these facts, the Kansas Supreme Court concluded that the trial court did not abuse its discretion in assessing twenty percent of the defendant’s total attorney fees as sanctions for pursuing the frivolous punitive damage claim and affirmed the trial court’s decision on this issue. 243 Kan. at 24-25.
There is no indication that the punitive damage claim at issue in Rood was ever subject to attack by a motion for directed verdict. Further, Rood did not involve a finding by the trial court that the plaintiffs entire lawsuit was frivolous. The learned trial court merely found the punitive damages claim was pursued without a reasonable basis in fact. 243 Kan. at 24. Although Rood indicates that sanctions can be imposed where at least one frivolous claim is made but other claims based in fact go to the jury, it does not support the defendants’ position in this case.
The Summers case also does not support the defendants’ position. Sanctions were imposed in Summers where the plaintiffs attorney frivolously continued a claim against a party who, under Kansas law, could not be liable to the plaintiff. 243 Kan. at 399-400. The trial court held the plaintiff s attorney liable for attorney fees incurred after information developed through discovery disclosed that the defendant had no legal liability to the defendant; the Kansas Supreme Court affirmed. 243 Kan. at 399-400. The Supreme Court found no abuse of discretion because the plaintiff s attorney had not argued to modify or overrule Kansas law, which evidenced a lack of good faith on the part of plaintiff s counsel. 243 Kan. at 400-01. Summers was decided on the basis that the claim was without basis in law and was pursued in bad faith. It did not involve any defense motions for directed verdict challenging the plaintiffs factual basis for the suit.
When determining whether to grant a motion for directed verdict, the trial judge is required to “resolve all facts and inferences reasonably to be drawn from the evidence” in favor of the non-moving party and deny the motion if reasonable minds could differ based on the evidence. (Emphasis added.) Folks v. Kansas Power & Light Co., 243 Kan. 57, 60, 755 P.2d 1319 (1988). When a directed verdict motion is not ruled upon or is denied by the trial judge, “the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion.” K.S.A. 1990 Supp. 60-250(c). If the case is submitted to the jury and a verdict is returned, upon motion, the court is free to later disregard the jury’s verdict, reopen the judgment, and either order a new trial or direct the verdict as if the initial motion for directed verdict had been granted. See K.S.A. 1990 Supp. 60-250(c).
The “flexible” nature of the court’s initial denial of a motion for directed verdict undermines Reyna’s argument that the court’s denial in this case essentially constituted a judicial determination that the suit had some basis in fact. Presumably, K.S.A. 1990 Supp. 60-250(c) makes the initial determination a flexible one so that a trial judge faced with a weak case will not be compelled to invade the province of the factfinder by directing a verdict in favor of the moving party. Under the statute, a trial judge can deny the motion and leave it up to the jury to do the right thing. If, in the judge’s opinion, it does not, he can later grant a new trial or direct the verdict for the moving party as warranted by the evidence.
In contrast, in determining whether a motion for sanctions should be granted, the court must conduct a two-part analysis addressing whether a reasonable basis in fact for the claim existed at the time it was made and whether the claim was pursued in good faith. See Summers, 243 Kan. at 399; Rood, 243 Kan. at 24; Smith, 11 Kan. App. 2d at 346.
At first blush it indeed seems totally inconsistent to deny motions for directed verdict but then find the suit had no basis in fact. However, in view of the statutory effect of denial of a directed verdict motion and considering the timing and differences in focus between the two motions, it does not appear that denying directed verdict motions would preclude the later imposition of sanctions based on a finding the suit or claim had no basis in fact when filed.
Were sanctions appropriate in this case? A detailed review of the record indicates they were.
THE PLAINTIFF’S ALLEGATIONS
Reyna’s petition essentially alleged that in November 1986 he was employed and earning $3,000 per month and that the defendants enticed him away from that employment by leading him to believe that he would be assigned General’s Kansas City territory where General’s previous subagent had earned in excess of $10,000 per month. The petition further alleged that Reyna started working for General on January 2, 1987, and was promised a $2,000 per month draw against $25 per vehicle service contract sold; that he was assigned to the Kansas City territory for only two weeks before he was reassigned to Oklahoma City because Bogle’s brother was given the Kansas City territory; that the defendants assigned him the Oklahoma City territory fraudulently because the territory had been previously assigned to someone else; that when he discovered the Oklahoma City territory was assigned to someone else he confronted the defendants, who promised he would be assigned the Texas territory commencing April 1, 1987; that General did not have a contractual right to the Texas territory when they promised to assign it to him; that the defendants terminated his employment on or about April 3, 1987; and that he remained unemployed through July 1987.
Reyna also filed with his motion to amend the petition to state a claim for punitive damages an affidavit alleging essentially the same facts. The affidavit expanded on the allegations in the petition in two important respects. Reyna alleged that he did not learn the Oklahoma City territory was assigned to someone else until after he arrived there, and he alleged that he did not learn that the defendants did not have a contractual right to sell in Texas until they admitted it to him on April 1, 1987.
THE FRAUDULENT INDUCEMENT CLAIM
The defendants learned that Reyna’s previous employer was Dick Schultz and deposed Schultz over the plaintiffs objections. Schultz’s trial deposition was read into the record and his testimony established that Reyna was not regularly employed by him, nor promised compensation of $3,000 per month. Schultz testified that Reyna’s only employment with him consisted of Reyna’s assistance in moving some equipment to Arizona for which Schultz reimbursed Reyna’s out-of-pocket expenses. Schultz also testified that Reyna volunteered to attempt to establish some Midwest dealers for Schultz’s products, for which he was advanced some expense money with the understanding that any unspent funds were to be returned to Schultz. Schultz testified his understanding was that Reyna would spend approximately two weeks attempting to sign dealers on his way back to Iowa, but when Reyna called him from Iowa approximately 30 hours after leaving Arizona he stopped payment on the check he had given Reyna. Schultz testified that the last time he saw Reyna was in September 1986.
Defense counsel informed Reyna’s attorney of the above facts approximately three months before trial. However, Shelton alluded to the prior employment in his opening statement, and Reyna pursued the fraudulent inducement claim at trial, testifying that he left Schultz’s employ to take a job with the defendants in November 1986. As noted above, the trial judge remarked that there were “real problems” with this claim because the evidence established that Reyna’s employment with Schultz ended before Reyna was hired by General, but he let the claim go to the jury, in part, because there was some evidence at trial from which the jury could find that the defendants promised Reyna $2,000 per month salary but had no intention of paying him. Shelton apparently never made any attempt to investigate Reyna’s claim of fraudulent inducement by checking Reyna’s tax returns or contacting his former employer before filing suit.
The appellant’s brief, in its statement of facts, contains a summary of the alleged investigation carried out by Shelton prior to filing the suit. The pre-filing investigation consisted of Shelton’s assertion that Reyna’s allegations were corroborated by other former employees of General. He states that these former employees told him they each had been treated similarly by the defendants. Shelton represented at least one of these former employees in a separate suit against the defendants. Relying upon the allegations of plaintiffs and potential plaintiffs with possible claims against the same defendants does not appear to be a “reasonable inquiry” into the factual basis of a lawsuit. K.S.A. 1990 Supp. 60-211.
THE BREACH OF CONTRACT AND LOST WAGES CLAIM
Reyna’s petition alleged that he began his employment with General on January 2, 1987. At trial, he stated that he started working for General in November 1986. He also introduced at trial an exhibit he had prepared in April 1987, which purportedly showed that he began incurring expenses in the course of his employment with General on January 2, 1987. The November starting date was corroborated by the testimony of Reyna’s father and Reyna’s wife. However, Bogle and McDavitt both testified that Reyna did not work for General prior to January 1987, and that the circumstances of his hiring were much different than what Reyna described.
Bogle and McDavitt testified that Reyna was an old friend of Bogle and had sought them out looking for work in late 1986, but General was in no position to hire Reyna. Then, in January 1987, General’s subagent in the Kansas City territory quit without warning so Bogle and McDavitt hired Reyna for the limited purpose of helping them pick up contracts at Kansas City dealerships for which they paid him $200. They then offered him a job on a month-to-month basis at a salary of $1,000 per month, with the understanding that he would be a subagent for the State of Texas if they obtained the contractual right to sell there, a right which was in litigation at that time. They testified that Reyna was aware of the conditional nature of his employment. Reyna began training in Wichita but was sent to Oklahoma to train with General’s subagent; he was to be transferred to Texas on April 1, 1987, if General got the territory and Reyna signed three Oklahoma dealerships.
The defendants learned they would not obtain the Texas territory on March 30, 1987, so they terminated Reyna’s employment on April 1, 1987.
Reyna admitted in his deposition that he knew, prior to April 1, 1987, the defendants had no contractual right to sell service contracts in Texas. He also admitted that when he went to work in Oklahoma he knew that General already had a subagent there and that he would work jointly for General and the subagent. Both admissions directly conflict with allegations made in his affidavit in support of punitive damages. Trial testimony established that the Oklahoma subagent agreed to pay Reyna $1,000 per month in addition to the $1,000 per month salary General paid him. One of the Oklahoma subagent’s checks to Reyna in the amount of $1,000 bounced and was' covered by defendants. Reyna attempted to prove his claim that General agreed to pay him $2,000 per month by introducing into evidence his regular $1,000 General paycheck and the $1,000 General check given to cover the Oklahoma subagent’s check.
Reyna apparently did have an employment contract with the defendants, but the contract came into existence much later than he alleged and the contract was conditioned upon uncertain future events. Reyna was promised a $2,000 per month salary with a $5 per contract sold override, but the promise was allegedly conditioned upon two events: (1) General’s obtaining the contractual right to sell in Texas, and (2) Reyna’s signing three Oklahoma dealerships for General prior to April 1, 1987. The agreement was embodied in a letter McDavitt wrote Reyna dated March 16, 1987. The condition regarding Reyna’s signing of three accounts was contained in the letter, but the condition regarding the Texas territory was not.
Reyna did sign three accounts in Oklahoma, but the dealerships were not eligible for the GWOC program because they dealt exclusively in used cars.
The defendants’ version of the entire period of Reyna’s employment was consistent with a letter Bogle sent Reyna on April 1, 1987.
As noted above, Reyna pursued a claim for lost wages from the time of his termination until he was again earning $2,000 per month. However, his tax returns showed that he was employed after being terminated by the defendants for at least eight of the nine months remaining in 1987.
A reasonable inquiry into this case would have established that there was no factual basis for Reyna’s claim that he had an unconditional agreement to work for the defendants for $2,000 per month.
Furthermore, the plaintiffs attorney never sent the defendants a demand letter prior to filing suit. Reyna argues that no demand letter was needed because court documents indicated that the defendants responded to a demand letter sent by Reyna’s previous attorney which expressed an obvious inclination not to pay. He further argues this fact triggers the “some other good reason” exception to sending a demand letter which is stated in Nelson v. Miller, 227 Kan. 271, 285, 607 P.2d 438 (1980). This argument is not convincing. As the court indicated in Nelson, the overriding purpose of a demand letter is to provide some objective evidence that the attorney conducted reasonable inquiry into the factual basis of the suit before filing the action. 227 Kan. at 284-85. Here, Shelton cannot provide such objective evidence.
Reyna’s evidence in this case was virtually all circumstantial. He produced no direct evidence to support his claims that he worked for Schultz at a salary of $3,000 per month, that the defendants unconditionally promised him a job paying over $2,000 per month, or that he suffered lost wages resulting from the defendants’ alleged breach of contract. The defendants’ evidence was mostly circumstantial as well, but was much more consistent with the physical evidence available at the time the lawsuit was filed.
On these facts, it appears the trial judge did not abuse his discretion in imposing sanctions.
On the issue of whether the trial court’s findings were adequate to establish that Reyna and Shelton exercised bad faith, Reyna contends that the trial court did not make the necessary subjective finding that this lawsuit was pursued in bad faith which is necessary to impose sanctions. After citing the trial judge’s quotations stating that the plaintiff was untruthful in a number of regards and that Shelton did not conduct reasonable inquiry before filing suit and pursued the entire suit after it was incumbent upon him to inform the court that the factual basis of all or some claims was highly questionable, Reyna argues the trial judge’s statements only address elements of the plaintiffs evidence. He also argues that the “reasonable inference” of bad faith resulting from Shelton’s lack of diligence and inattention to contrary evidence alluded to in the defendants’ memorandum in support of the motion for sanctions, which was adopted by the trial judge, is not sufficient.
Reyna’s argument appears to be more of a challenge to the trial court’s act of incorporating by reference the defendants’ memorandum in support of the motion for sanctions, which the trial court adopted as its findings of fact and conclusions of law. In doing so, the trial court noted it was unusual to do that, but felt that the findings of fact and conclusions of law were accurate and to draft a journal entry setting out all the necessary findings would result in unnecessary duplication of efforts.
The memorandum adopted by the trial court adequately sets out the reasons for the judge’s decision on this issue and contains the necessary findings. This appears to satisfy the findings and conclusions requirements set out in K.S.A. 60-252 and Supreme Court Rule 165 (1990 Kan. Ct. R. Annot. 119). Therefore, Reyna’s argument on this issue is without merit.
The judgment of the trial court is affirmed. | [
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Elliott, J.:
DeWayne Horn (a/k/a Funlove) appeals his conviction of attempted possession of cocaine following the trial court’s denial of his motion to quash the arrest and suppress the evidence.
A judge issued a search warrant for a specific residence in Junction City, covering, inter alia, cocaine, documentary evidence of drug transactions, drug paraphernalia, specific currency, and “the person of all persons on said premises.”
When executing the warrant, the officers announced their presence, heard “scurrying” in the house, and broke down the door. The occupants were running toward the kitchen in the rear of the house. Officers ordered the occupants to lie on the floor. Drug paraphernalia and money were in plain view in the living room. Horn was stopped in the dining room and searched. Cocaine and a large amount of cash were found in his jacket pockets.
Horn moved to quash the arrest and suppress the evidence, alleging the warrant allowing the search of “the person of all persons” was an unlawful general warrant. The trial court denied the motion, ruling the warrant was properly issued and that exigent circumstances existed which justified the search under K.S.A. 22-2509.
The Search Warrant
General warrants are constitutionally prohibited. United States Constitution, Fourth Amendment; Kansas Constitution Bill of Rights § 15; State v. Bishop, 240 Kan. 647, 656, 732 P.2d 765 (1987). But warrants authorizing the search of all persons at a location are not per se invalid. Most jurisdictions permit such warrants if the facts known to the issuing judge justify a belief that the premises are confined to ongoing illegal activity and that every person within the orbit of the search possesses the items sought by the warrant. E.g., People v. Nieves, 36 N.Y.2d 396, 330 N.E.2d 26 (1975); Com. v. Heidelberg, 369 Pa. Super. 398, 535 A.2d 611 (1987).
While we have not addressed the issue of “all persons present” warrants in Kansas, our Supreme Court has held that a warrant authorizing the search of an apartment and its occupant for cocaine could not be expanded, absent additional evidence, to include other persons in the house at the time of the search. The court reasoned that a “person’s mere nearness to others independently suspected of criminal activity does not, without more evidence, give rise to probable cause to search that person.” State v. Lambert, 238 Kan. 444, 450, 710 P.2d 693 (1985).
Courts which have considered the validity of “all persons present” warrants look closely at the facts known to the judge at the time the warrant was issued. E.g., Commonwealth v. Smith, 370 Mass. 335, 348 N.E.2d 101, cert. denied 429 U.S. 944 (1976); State v. DeSimone, 60 N.J. 319, 288 A.2d 849 (1972); Com. v. Heidelberg, 369 Pa. Super. 398.
In the present case, probable cause existed to issue a warrant to search the house for drugs and drug-related items. See State v. Morgan, 222 Kan. 149, 153, 563 P.2d 1056 (1977). However, we hold the facts known to the judge at the time the warrant was issued were insufficient to'justify searching all persons present in the house. ¡.-
Of the three controlled buys on which the warrant was based, only the first — a month prior to the warrant’s issuance — was consummated at the premises. On the second controlled buy, Denise “Candy” Bass and the informant left the residence and drove to several locations before the sale was completed. And on the final buy, persons left the house for unknown reasons prior to completion of the sale. Additionally, police observed persons leaving the house for the legal purpose of purchasing liquor; there is no evidence these people were known to be involved in drug trafficking.
The facts in the affidavit are simply insufficient to infer that the sole or primary activity at the residence was the sale of drugs and that everyone present would be involved in illegal activity. Accordingly, the search warrant was invalid as to its authorization to search “the person of all persons on said premises.” See People v. Paul, 96 Misc. 2d 1085, 410 N.Y.S.2d 516 (1978).
Exigent Circumstances and K.S.A. 22-2509
The trial court also upheld the search on the basis that exigent circumstances authorized it under K.S.A. 22-2509. We agree.
K.S.A. 22-2509 provides that a person executing a search warrant may reasonably detain and search “any person in the place” in order to “prevent the disposal or concealment of any things particularly described in the warrant.” In discussing the statute, our Supreme Court has held that police may search a nonresident while executing a search warrant authorizing a premises search where there is probable cause to search plus exigent circumstances. State v. Lambert, 238 Kan. at 450.
In the present case, the police had a valid warrant to search the premises for drugs and drug paraphernalia. When they entered the residence, the occupants fled toward the back of the house. Money and drug paraphernalia were in plain view, indicating that drugs were being sold. Given that drugs are easily concealed and easily disposed of, the police had probable cause after entering the residence to search everyone running toward the back of the house, including appellant. This action by the police did not convert the search warrant into a general warrant, and did not deprive Horn of his constitutional right to be free from unreasonable searches. Exigent circumstances existed to justify the search under K.S.A. 22-2509.
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Lewis, J.:
This is a direct appeal by the defendant from his convictions of the crimes of possession of marijuana with intent to sell and possession of cocaine with intent to sell.
The principal issue on this appeal is whether evidence seized under a search warrant should be suppressed. Specifically, the question is whether the officers exceeded the scope of the warrant in searching a shed in the back of the defendant’s dwelling.
There appears to be no question as to the propriety of the issuance of the search warrant. The only question at issue is the permissible scope of the search permitted under the warrant. The search warrant applied for and obtained in the instant matter described the place to be searched as follows:
“2528 N. Mascot, Wichita, Sedgwick County, Kansas,, to be a single story residential structure, with white siding painted white with black trim that is the fourth (4th) residential structure south of twenty-fifth (25th) Street North on Mascot. The residence sits on the east side of Mascot facing west. The numbers 2 5 2 8 are displayed on a wood plaque in a horizontal manner directly to the north of the front door.”
The warrant further described the items for which a search was to be made and then stated that those items “are located in or upon the above described persons, places, things, or means of conveyance.”
The execution of the warrant took over two hours. However, this appeal involves only the legality of the search of an unattached shed or outbuilding located in the back of defendant’s residence. We shall, therefore, limit our recitation of the facts to those necessary to deal with the issue presented.
The police officers, armed with the search warrant described above, first secured and then searched the defendant’s residence located at 2528 North Mascot. The search of the residence itself is not at issue and was apparently routinely conducted. However, during or shortly after the residence was searched, it appears that the officers viewed the contents of an unattached shed located in the back of the residence. The shed contained what appeared to be a quantity of cocaine.
At this point, the officers appear to have been uncertain as to how to proceed. They seem to have questioned their authority to search the shed and seize the contraband items under the warrant in their possession. As a result, they first attempted to obtain a written waiver consenting to the search from the defendant’s wife, who was present in the residence. Initially, the wife orally consented to the search but, after a written waiver was prepared, she refused to sign it. The officers then sought and obtained from the defendant a written waiver consenting to the search of the shed. After this was in hand, the shed was searched and a quantity of cocaine was removed.
The defendant argues that the search of the unattached shed was not authorized by the terms of the search warrant described above, which specifically only describes the residence of the defendant. As a result, defendant argues that the search of the shed was outside the scope of the warrant and that the items seized from the shed should be suppressed. We disagree.
We also note that the defendant argues that his consent to the search of the shed was illegally obtained. As will be seen, we do not reach that issue, although we tend to agree with the defendant’s arguments in that regard.
Historically, the Fourth Amendment protection against unreasonable searches and seizures has extended not only to the residence of a suspect, but also to an area surrounding the residence, which is referred to as the “curtilage.” See United States v. Dunn, 480 U.S. 294, 300, 94 L. Ed. 2d 326, 107 S. Ct. 1134, reh. denied 95 L. Ed. 2d 519, 107 S. Ct. 1913 (1987); Oliver v. United States, 466 U.S. 170, 80 L. Ed. 2d 214, 104 S. Ct. 1735 (1984); Hester v. United States, 265 U.S. 57, 59, 68 L. Ed. 898, 44 S. Ct. 445 (1924). In Dunn, the Supreme Court of the United States points out the historical basis for the curtilage concept as follows: “The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house itself.” 480 U.S. at 300.
Since the “curtilage” is afforded the same Fourth Amendment protection as the residence itself, it has been generally held that a search warrant describing only the residence will authorize a search of any buildings or vehicles within the “curtilage” even though they are not specifically described in the warrant. In 2 LaFave on Search and Seizures § 4.10, pp. 312-13 (2d ed. 1987), the general rule is stated:
“A search made under authority ■ of a search warrant may extend to the entire area covered by the warrant’s description. For example, if the warrant authorizes search of a ranch, the entire acreage of the specified ranch may be searched. Similarly, if the warrant authorizes a search of ‘premises’ at a certain described geographical location, buildings standing on that land may be searched. This means that if the place to be searched is identified by street number, the search is not limited to the dwelling house, but may also extend to the garage and other structures deemed to be within the curtilage and the yard within the curtilage. Similarly, if the warrant also directs a search of a vehicle on the described premises, it is sufficient that the car is situated close enough to the house to be within the curtilage.”
In State v. Vicars, 207 Neb. 325, 330, 299 N.W.2d 421 (1980), the Supreme Court of Nebraska dealt with the question of whether a search warrant describing the defendant’s residence authorized the search of a shed located on the defendant’s property. In answering that question in the affirmative, the Nebraska Supreme Court stated:
“The connected question is whether the search of that shed was made pursuant to a valid search warrant. The defendant argues that the search warrant did not extend to the calf shed because the description therein is as follows: ‘A green single family dwelling described as: Original Town of Thompson, Lots 16 to 22, Fr. Lots 11-15, 29S 8C 1BAF 8 Blk 7 The defendant contends that the search warrant describes the place to be searched as the house only, and does not include any of the outbuildings. The question of whether an outbuilding, which is in the curtilage of a dwelling house, may be searched under the same warrant as that building, even though it is not specifically described, was dealt with in the case of Bellamy v. State, 134 Ga. App. 340, 214 S.E.2d 383 (1975). The court stated: ‘ “Curtilage” comes down from early English days. An out-building on the grounds is within the “curtilage” and may be searched under such a warrant, though not described specifically.’ [Citation omitted. ]
“This view is not new. For instance, in Ford v. State, 34 Okl. Cr. 184, 185, 245 P. 909, 910 (1926), it was stated: ‘Ordinarily, a search warrant covers the curtilage and appurtenances of the place described.’ See, also, Seals v. State, 157 Tenn. 538, 545, 11 S.W.2d 879, 881 (1928), which also held: ‘It is our opinion that a search warrant directing that a search be made of a principal building, identified by street number, authorizes the search of an outhouse so clearly appurtenant to'and a part of the same premises as the coal house here involved.’ Even back in 1865, it was stated: ‘It would destroy the utility of the proceeding, if, beside the building principally named, all other buildings and places of concealment upon the same premises, occupied in connection with it and by the same person, could not also be searched, and by virtue of the same warrant.’ Meek v. Pierce and Another, 19 Wis. 318, 321 (1865).
“We, therefore, hold that by finding that the defendant had a reasonable expectation of privacy in the calf shed in question, a valid search warrant would be required for the search and seizure of the blue jeans. We also hold that the search warrant included the calf shed as an outbuilding appurtenant to and within the curtilage of the dwélling house, and, therefore, it was within the scope of the warrant.” 207 Neb. at 330-31.
In Kansas, we appear to have adopted the rules enunciated above. In State v. Ogden, 210 Kan. 510, 519, 502 P.2d 654 (1972), a search warrant directed the search of a “white frame residence” located at 1350 South Gordon, Wichita, Sedgwick County, Kansas. Operating under that warrant, evidence was seized from a trash can in the rear of the yard at 1350 South Gordon. The defendant argued that the search warrant authorized only the search of the residence described and that the search of the trash can exceeded the scope of the warrant. Our Supreme Court held the search was within the scope of that warrant. While the term “curtilage” is not used, the Ogden court held, at Syl. ¶ 8: “Where a search warrant authorizes the search of a ‘white frame residence’ located at a certain address, a search of a trash can at the rear of the yard, where contraband is found, is properly considered a part of the premises to be searched.”
In State v. McClelland, 215 Kan. 81, 523 P.2d 357 (1974), the search warrant described a residence at 1315 Monroe and authorized a search “in or upon premises described above.” Acting under that warrant, the police searched the person of the defendant who was standing by a vehicle parked in front of the house. Our Supreme Court upheld the search as within the scope of the warrant. In State v. Waldschmidt, 12 Kan. App. 2d 284, 740 P.2d 617, rev. denied 242 Kan. 905 (1987), this court recognized the curtilage concept in a case in which a police view of the “curtilage” was held to violate the defendant’s Fourth Amendment rights. Although Waldschmidt does not deal with the scope of a search warrant under the curtilage doctrine, it clearly recognizes that doctrine as the law of this state.
There are numerous cases from other jurisdictions holding that a search warrant which describes a certain residence includes the right to search anything located within the “curtilage” of the residence described in the search warrant. For instance, see, State v. Courtright, 60 N.C. App. 247, 298 S.E.2d 740 (1983) (search of 1973 Thunderbird parked on street in front of residence permitted under warrant describing a “ ‘one story single family dwelling . . . located at 5035 Furman Pi., Charlotte’ ”); Glenn v. Commonwealth, 10 Va. App. 150, 390 S.E.2d 505 (1990) (search of a 1974 Volkswagen parked in front of a dwelling was authorized under a search warrant describing “dwelling at 1305 College Street”); United States v. Moore, 743 F.2d 254 (5th Cir. 1984) (search of an unattached garage authorized under warrant de scribing the place to be searched as “a certain building, house, or place occupied and used as a private residence located in Austin, Travis County, Texas, and being the building, house, or place of Terry Moore”); State v. Trapper, 48 N.C. App. 481, 269 S.E.2d 680 (1980) (search of a tin shed some 30 feet away from a house authorized under search warrant describing a “house-trailer, double wide.”)
There appears to be little doubt that a search warrant which describes only the residence of a defendant will authorize the search of any vehicles or buildings within the “curtilage” of that residence.
We do not perceive there to be any question that the shed searched in the instant matter was located within the “curtilage” of the residence at 2528 North Mascot. The testimony indicates that the shed in question was metal and was located in the “rear portion of the residence in the yard.” Indeed, the parties do not argue that the shed was not within the curtilage. Based upon our review of the record and statements and arguments of counsel, we hold that the shed in question was within the curtilage of the residence at 2528 North Mascot and hence its search was within the scope of the warrant.
The defendant argues that the curtilage concept does not apply under these facts. He takes the position that whether the shed was or was not within the “curtilage” is irrelevant. It is the defendant’s position that the warrant in this case was so specific in its description of the place to be searched that it cannot be construed to reach outbuildings located within the curtilage. In this regard, the defendant stresses the fact that the warrant does not authorize the search of the “premises” at 2528 North Mascot, nor does the term “premises” appear in the warrant. Indeed, counsel for defendant conceded on oral argument that, had the term “premises” been used in the warrant, defendant’s argument would be considerably weakened.
We concede that, in many of the authorities on this issue, the search warrant in question did employ the term “premises” in addition to a specific description of the residence to be searched. We hold, however, that the absence of the term “premises” does not negate the authority of the State to conduct a search within the “curtilage” of the residence described in the instant matter.
In People v. Muniz, 198 Colo. 194, 597 P.2d 580 (1979), the Supreme Court of Colorado addressed a similar argument. In that case, the search warrant commanded the officers to search a residence at “1401 W. Ada Place” in their pursuit of a sawed-off 12 gauge shotgun. The authorities, acting under that warrant, found the shotgun in an unattached storage structure approximately 30 feet from the house. This structure was in the back yard of the premises and was within a fence which encircled the back yard. The defendant in that case argued that the search of the shed was outside of the scope of the warrant, principally because the word “premises” did not appear in the affidavit. The Colorado trial court suppressed the shotgun as evidence because the word “premises” did not appear in the affidavit employed to obtain the search warrant. The Supreme Court reversed and held that the search was authorized. In that decision, the court discussed the use of the term “premises” in the context of defendant’s arguments:
“The district attorney asks us to adopt a general rule that the use of the word ‘premises’ in a search warrant will in all instances authorize a search of all the land encompassed in the description of the property contained in the warrant. See, United States v. Meyer, 417 F.2d 1020 (8th Cir. 1969). We decline to do so. The word ‘premises’ does not have a particular meaning beyond that dictated by the circumstances in which it is used. ‘Premises’ can refer to a single room, see, Black’s Law Dictionary 1344 (rev. 4th ed. 1968), a large tract of farmland, see, United States v. Meyer, supra, or an apartment building or other multiple use building which could not be searched without specificity in both the affidavit and the warrant. See, People v. Alarid, 174 Colo. 289, 483 P.2d 1331 (1971); People v. Avery, 173 Colo. 315, 478 P.2d 310 (1970).
“The word ‘premises’ was not used in the affidavit and search warrant in this case to describe with particularity the place to be searched. However, the requirements of specificity contained in the Fourth Amendment of the United States Constitution, and Art. II, Sec. 7 of the Colorado Constitution are often taxed by the use of printed forms. Every affidavit and warrant, including those on printed forms, should be carefully prepared to fit the requirements of the particular case. . . .
“Nevertheless, we have concluded that the search and seizure carried out in this case were reasonable and met Fourth Amendment requirements. The following factors are relevant to our decision. First, the sawed-off shotgun which was seized was portable contraband, of a type which the defendant would have reason to secrete, and which could be easily hidden. Detective Cinquanta first searched that place where the shotgun had been seen, and thus attempted to limit the intensity of the search. [Citations omitted.] In the search, Cinquanta found other items in the house which he was authorized to seize. Only then did he search the shed. The shed was close to the house, in an enclosed area in which the defendant had a possessory right, and to which he had ready, expectable and permitted access. [Citation omitted.] Finally, once Cinquanta found the shotgun he ended his search. [Citations omitted.]
“In such circumstances, we cannot say that Cinquanta’s conduct was unreasonable, or that he exceeded the reasonable scope of the warrant under which he acted.” 198 Colo. at 198-99.
We agree with the basic thrust of the Colorado decision. While the use of the term “premises” in a search warrant may be desired to avoid arguments such as the one with which we now deal, it is not required in every instance. The law is clearly established that a search warrant which describes a specific residence authorizes a search of the “curtilage” of that residence. Indeed, a construction such as that urged by the defendant would be, in our opinion, the sort of hypertechnical construction of a search warrant which has been condemned by the United States Supreme Court. See United States v. Ventresca, 380 U.S. 102, 108, 13 L. Ed. 2d 684, 85 S. Ct. 741 (1965). It would appear to be a hypertechnical view of the issue to hold that the word “premises” has some magical meaning and that the failure to use that one term dooms the search in this case. We hold that the search warrant in question authorized the search of not only the residence, but of the curtilage of the defendant’s residence. We also hold that the shed from which the cocaine was obtained was within the curtilage and that a search of the shed was within the scope of the search warrant issued.
The defendant has cited to us the case of United States v. Dunn, 480 U.S. 294. He argues that that case is helpful to him in establishing the illegality of the search. We do not agree. United States v. Dunn is a case wherein the United States Supreme Court found that a bam was not within the curtilage of a residence. That case does not provide any authority in support of defendant’s position. Indeed, the defendant cites and relies on the dissent in Dunn in order to buttress his argument. We decline to follow the dissent, and we do not believe that Dunn mandates a reversal of the trial court’s decision in the instant matter.
We pointed out earlier that the officers had obtained a written waiver in which the defendant consented to a search of the shed. The defendant has argued that the waiver obtained was not valid. In view of our decision holding that the search of the shed was authorized under the scope of the original search warrant, we do not reach the question of whether defendant’s written consent to the search was valid.
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Lewis, J.:
This is an appeal by the plaintiff from an order dismissing its action for an accounting and damages against the defendants. After review, we reverse and remand.
United Properties, Inc., (United) is one of the the general partners of Mission Road Associates, L. P., (Mission Road) a Kansas limited partnership. United instituted this action against IML Realty (IML) and Irwin M. Levine. The action alleged that IML and Levine had managed property belonging to Mission Road and that they refused to surrender the property on demand, refused to render an accounting, and had converted partnership assets to their own use.
IML and Levine filed a motion to dismiss or for summary judgment. The basis of that motion was the proposition that, at the time the action was filed, United’s articles of incorporation had been forfeited as had the limited partnership status of Mission Road. Thus, it was argued that neither the general partner nor the limited partnership had any legal existence at the time the action was commenced.
The trial court sustained the motion to dismiss. It made no findings, and its orders give no reasons to support the decision. We assume that the action was dismissed because of the alleged lack of legal status vested in United and Mission Road at the time the action was filed.
The facts indicate that United was incorporated originally in 1984. Its articles were forfeited on at least two occasions for failure to file an annual report. The articles were last forfeited on October 15, 1987, and were reinstated on June 29, 1990. The present action was filed on September 26, 1989, at a time when United’s articles remained forfeited. The order dismissing the action was filed July 5, 1990, at which point the articles had been reinstated.
The limited partnership status of Mission Road was forfeited on July 15, 1988, for its failure to file an annual report. The limited partnership status was reinstated on June 29, 1990. Thus, as is the case with the general partner, the limited partnership had no legal existence when the action was filed, but that legal existence had been reinstated prior to the dismissal.
The question before this court is what effect, if any, the forfeiture of the articles of incorporation of United and the limited partnership status of Mission Road had on their ability to commence and maintain the present action in the district court.
We turn first to the status of the corporation. K.S.A. 17-6807 provides that a corporation may sue or defend an action in the district court for a period of three years from the date its articles of incorporation are forfeited. This statutory authorization entitles the corporation to prosecute and defend actions in that time frame which relate to the setding and closing of the corporate business. The statute specifically states that an action is not authorized “for the purpose of continuing the business for which the corporation was organized.” The action in question was commenced within three years of the forfeiture of United’s articles of incorporation and was clearly authorized by K.S.A. 17-6807 if the purpose of the action was the closing or settling of corporate affairs by United. Therefore, should the trial court conclude that United, as it claims, was closing and settling its business affairs in filing this action, then the action is authorized under 17-6807 and should not have been dismissed.
However, we conclude on a broader basis that, under K.S.A. 1990 Supp. 17-7002, United’s action in filing and maintaining this lawsuit was authorized regardless of whether it relates to the closing of the corporate business. K.S.A. 1990 Supp. 17-7002 deals with, among other things, the restoration of articles of incorporation which have been forfeited. That statute provides in part:
“(d) Upon the filing of the certificate in accordance with K.S.A. 17-6003, and amendments thereto, the corporation shall be renewed and revived with the same force and effect as if its articles of incorporation had not become inoperative and void or had not expired by limitation. Such reinstatement shall validate all contracts, acts, matters and things made, done and performed within the scope of its articles of incorporation by the corporation, its officers and agents during the time when its articles of incorporation were inoperative or void or after their expiration by limitation, with the same force and effect and to all intents and purposes as if the articles of incorporation had at all times remained in full force and effect. All real and personal property, rights and credits, which belonged to the corporation at the time its articles of incorporation became inoperative or Void, or expired by limitation and which were not disposed of prior to the time of its revival or renewal shall be vested in the corporation after its revival or renewal, as fully and amply as they were held by the corporation at and before the time its articles of incorporation became inoperative or void or expired by limitation, and the corporation after its renewal or revival shall be as exclusively liable for all contracts, acts, matters and things made, done or performed in its name and on its behalf by its officers and agents prior to its reinstatement, as if its articles of incorporation had remained at all times in full force and effect.”
The provisions of K.S.A. 1990 Supp. 17-7002(d) are not difficult to interpret. It clearly provides that reinstatement of the corporate status validates all actions taken by or on behalf of the corporation during the period of time the articles were forfeited. This validation would include, in our opinion, the filing of an action in the district court during the time the articles were forfeited. As a result, if United had no authority to file the action at the time it was filed, that authority was granted retroactively on the date its articles were reinstated. Accordingly, when United’s articles were reinstated on June 29, 1990, the filing of the current litigation was retroactively validated. We hold that, pursuant to K.S.A. 1990 Supp. 17-7002(d), it was error to dismiss this action on the grounds that the articles of incorporation of United were forfeited at the time the action was filed. Any question about United’s authority to file this action was removed when its articles of incorporation were reinstated.
There are no decisions by Kansas courts regarding the retroactivity of 17-7002(d). However, there are decisions from other jurisdictions which have held that the revival of articles of incorporation allows the corporation to sue with respect to an action that was commenced after forfeiture. See Capital Const. Services v. Rubinson, 541 So.2d 748 (Fla. Dist. App. 1989); LeLac Property Owners’ Ass’n Inc. v. Routh, 493 So.2d 1131 (Fla. Dist. App. 1986). See Annot., 42 A.L.R.4th 392, 433. We adopt the reasoning of these decisions of our sister courts.
We now turn to the limited partnership itself. United filed suit as the general partner of a limited partnership which had no legal existence on the date the action was commenced. We must determine whether the existence of this fact justified the court’s action in dismissing the petition.
Mission Road argues that the purpose of the action was to “wind up its affairs.” In that regard, K.S.A. 1990 Supp. 56-1a453 provides as follows:
“(a) Unless otherwise provided in the partnership agreement, the general partners who have not wrongfully dissolved a limited partnership or, if none, the limited partners may wind up the limited partnership’s affairs; but the district court, upon cause shown, may wind up the limited partnership’s affairs upon application of any partner or the partner’s representative or assignee.
“(b) Upon dissolution of a limited partnership and until the filing of a certificate of cancellation as provided in K.S.A. 56-1a506 and amendments thereto, the persons winding up the limited partnership’s affairs, in the name of, and for and on behalf of, the limited partnership, may prosecute and defend suits, whether civil, criminal or administrative, gradually settle and close the limited partnership’s business, dispose of and convey the limited partnership’s property, discharge the limited partnership’s liabilities, and distribute to the partners any remaining assets of the limited partnership, all without affecting the liability of limited partners.”
It is clear that, under the express provisions of the above-quoted statute, United had the authority to bring this action to “wind up the affairs” of Mission Road. If the purpose of the action was to “wind up the limited partnership affairs,” then the legal status of the limited partnership was immaterial, and United, as the general partner, was authorized by statute to maintain the action.
The question of whether the action was or was not one to “wind up the affairs” of Mission Road is one we cannot answer. Counsel for Mission Road, however, insists the action relates to “winding up” its affairs. However, there is no evidence in the record on this issue. This is a question of fact which must be determined by the trial court after a proper evidentiary hearing. If, on remand, the trial court concludes from the evidence that the limited partnership is in the process of “winding up its affairs,” then the action is proper, and the lawsuit must proceed on its merits.
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Briscoe, C.J.:
Ramon Guillan appeals several rulings in a personal injury action arising from an automobile collision.
On September 25, 1984, a car driven by Guillan was involved in a collision with a car driven by Melba Watts. Guillan was northbound on MacVicar Street in Topeka and, as he attempted to turn left onto 29th Street, his car collided with Watt’s car, which was eastbound on 29th. The intersection was controlled by traffic lights and both drivers testified they had the green light. There were no other witnesses. Guillan suffered numerous severe injuries and required extensive medical treatment, claiming medical expenses of over $32,000 and loss of wages of $16,498. On September 9, 1986, Guillan filed suit against Watts for $500,000. On September 17, 1986, Watts filed a counterclaim against Guillan for $50,000.
Watts’ insurance policy had a $50,000 limit. When Guillan learned of this policy limit, he notified Allstate, his insurance company, that he would seek compensation under his underinsured motorist coverage, which had a $100,000 limit. Eventually, Watts and her insurance company offered to settle for the $50,000 limit. Guillan informed Allstate of this offer on November 4, 1988. On January 26, 1989, Allstate filed a motion to intervene, which was granted on February 13, 1989. On February 9, 1989, Watts offered to confess judgment in the amount of $105,000. Guillan was willing to accept this if it would be binding on Allstate. Allstate had no objection to the confession as long as it was not bound.
The trial court found Allstate had been given proper notice under K.S.A. 1990 Supp. 40-284(f) of Watts’ offer to settle for her policy limits. The court also found that Allstate had not substituted payment within 60 days, as provided in 40-284(f), and had therefore waived its subrogation rights against Watts. The trial court ultimately allowed Watts to confess judgment in the amount of $105,000, but ruled the confession would not be valid and binding upon Allstate. The trial court certified for interlocutory appeal the questions of whether Allstate could intervene later than the 60-day period of 40-284(f) and whether the confession of judgment was binding on Allstate. Application for interlocutory appeal was denied. The case proceeded to trial with only Guillan and Allstate remaining. The jury found Guillan 50 percent at fault and Watts 50 percent at fault, thus awarding no damages.
I. Did the trial court abuse its discretion in allowing Allstate to intervene?
Guillan contends it was error to allow Allstate to intervene. Whether to grant a motion to intervene is a matter of judicial discretion and depends on the concurrence of three factors: (1) timely application; (2) substantial interest in the subject matter; and (3) lack of representation of the intervenor’s interest. Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 666, 722 P.2d 1093 (1986).
In Haas v. Freeman, 236 Kan. 677, 683, 693 P.2d 1199 (1985), the procedure to be followed in an action involving an under-insured motorist was set forth:
“When the litigant determines the opposing party’s liability coverage is below the litigant’s liability coverage as well as the amount of damages claimed, and he wishes to invoke the underinsured motorist clause of his insurance policy, he shall notify his insurance carrier in the manner prescribed in the insurance policy.
“The insurance company may then intervene in the case at its election. If it elects to intervene, it shall be a named party to the action. If the insurance company elects not to intervene, K.S.A. 60-454 is applicable. In either case the litigant’s underinsured motorist insurance carrier is bound by any judgment obtained in the action.”
K.S.A. 1990 Supp. 40-284(f) provides:
“An underinsured motorist coverage insurer shall have subrogation rights under the provisions of K.S.A. 40-287 and amendments thereto. If a tentative agreement to settle for liability limits has been reached with an underinsured tortfeasor, written notice must be given by certified mail to the underinsured motorist coverage insurer by its insured. Such written notice shall include written documentation of pecuniary losses incurred, including copies of all medical bills and written authorization or a court order to obtain reports from all employers and medical providers. Within 60 days of receipt of this written notice, the underinsured motorist coverage insurer may substitute its payment to the insured for the tentative settlement amount. The underinsured motorist coverage insurer is then subrogated to the insured’s right of recovery to the extent of such payment and any settlement under the underinsured motorist coverage. If the underinsured motorist coverage insurer fails to pay the insured the amount of the tentative tort settlement within 60 days, the underinsured motorist coverage insurer has no right of subrogation for any amount paid under the underinsured motorist coverage.”
Guillan seems to argue that, under Haas, once notice is given, the insurance company must immediately intervene. To find that Haas requires immediate intervention would require an extremely narrow and illogical construction. Guillan further argues that, once notice has been given under 40-284(f), intervention must come within 60 days. However, 40-284(f) only concerns the subrogation rights of the underinsured motorist insurance carrier. Gifford v. Farm Bur. Mut. Ins. Co., 14 Kan. App. 2d 740, 742, 799 P.2d 105, rev. denied 248 Kan. 995 (1990). The statute only refers to the underinsured motorist insurance carrier losing subrogation rights if no timely substitution of payment occurs. It does not require the underinsured motorist insurance carrier to intervene within 60 days should it choose to contest the liability of the underinsured motorist. Allstate agrees in this case that it has waived its subrogation rights because it did not substitute payment within 60 days. The trial court did not err in allowing Allstate to intervene to contest liability.
II. Is the tortfeasors confession of judgment binding upon Allstate?
Guillan contends the trial court erred in ruling Allstate was not bound by Watts’ confession of judgment. Guillan seizes on one sentence found in Haas for support of his proposition. In Haas, the court held the underinsured motorist insurance carrier could choose whether to intervene. The court went on to state: “In either case the litigant’s underinsured motorist insurance carrier is bound by any judgment obtained in the action.” 236 Kan. at 683. Guillan argues this language is broad enough to include a confession of judgment.
Guillan’s argument presents a legal question of first impression that requires judicial interpretation of K.S.A. 1990 Supp. 40-284(b), which provides:
“(b) Any uninsured motorist coverage shall include an underinsured motorist provision which enables the insured or the insured’s legal representative to recover from the insurer the amount of damages for bodily injury or death to which the insured is legally entitled from the owner or operator of another motor vehicle with coverage limits equal to the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle.” (Emphasis added.)
The issue in the present case is whether the phrase “to which the insured is legally entitled from the owner or operator of another motor vehicle” imposes on an injured insured the burden of establishing the liability of the underinsured motorist by judicial determination as a prerequisite to recovery from his underinsured motorist insurance carrier. In other words, is a confession of judgment from the primary tortfeasor sufficient to obligate payment by the insurer or is the injured insured still required to judicially establish liability before recovery can be had?
In cases involving uninsured motorist coverage, the Kansas Supreme Court has construed the phrase “legally entitled to recover as damages” (K.S.A. 1990 Supp. 40-284[a]) to mean that the insured must establish the fault of the uninsured motorist as a prerequisite to recovery from the uninsured motorist insurance carrier. Patrons Mutual Ins. Ass’n v. Norwood, 231 Kan. 709, 713, 647 P.2d 1335 (1982); Winner v. Ratzlaff, 211 Kan. 59, 64, 505 P.2d 606 (1973). In a direct action against the insurer, a joint action against the insurer and the tortfeasor, or an action against the tortfeasor alone, the insured has the burden of proving the tortfeasor is uninsured and is legally liable for the damage, and the amount of this liability. Winner, 211 Kan. at 64-65. The court has held that the uninsured motorist statute, 40-284, was not intended to impose absolute liability without regard to fault. Rather, it was intended to provide compensation only after the liability of the uninsured motorist for the injury has been established. Sturdy v. Allied Mutual Ins. Co., 203 Kan. 783, 785, 457 P.2d 34 (1969). The same should be true in an underinsured motorist situation.
As a general rule, a judgment entered by consent or agreement is conclusive only on the parties to the agreement, and is not binding upon other persons even if such other persons would be bound by the judgment had it been entered as a result of a trial. See Industrial Park Corp. v. U.S.I.F. Palo Verde Corp., 26 Ariz. App. 204, 206-07, 547 P.2d 56 (1976); Hentschel v. Smith, 278 Minn. 86, 91, 153 N.W.2d 199 (1967). In Kansas, the general rule has been applied in comparative negligence cases in a variety of contexts, and the Supreme Court has consistently found one tortfeasor cannot, by settlement, bind nonsettling tortfeasors without their consent. See, e.g., Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 192, 643 P.2d 158, aff'd on rehearing 232 Kan. 194, 653 P.2d 816 (1982) (“[A] settling defendant has no claim to settle but his own.”) Although the present case does not involve settlement in a multiple tortfeasor context, the analogy to the general rule is persuasive.
In Mathis v. TG&Y, 242 Kan. 789, 751 P.2d 136 (1988), the plaintiff filed successive suits arising out of the same event, naming different defendants in each petition. The plaintiff then settled with the defendants in one suit and the action was dismissed with prejudice. The issue presented was whether a dismissal with prejudice in one case precludes a trial in the other action. It was held the dismissal did not qualify as a “judicial determination of comparative fault” precluding a trial on the merits against different defendants based on the same occurrence. 242 Kan. at 794.
In Childs v. Williams, 243 Kan. 441, 757 P.2d 302 (1988), the minor plaintiff settled with one defendant and, pursuant to K.S.A. 38-102, settlement was reduced to judgment with court approval. Later, plaintiff filed an action against another defendant. The issue presented was whether the judgment previously obtained precluded a trial on the merits in the second action. Defendant attempted to distinguish Mathis, arguing the court played a substantive role in evaluating the settlement and reducing it to judgment whereas Mathis dealt only with dismissal by the court. The Supreme Court was not persuaded and concluded “each plaintiff must be allowed a trial judicially determining comparative fault, regardless of whether the plaintiff had the opportunity to do so earlier in one action.” 243 Kan. at 443. Implicitly, the court held a judgment rendered pursuant to agreement by the parties was not a judicial determination of comparative fault precluding a trial on the merits.
In the present case, Guillan argues a confession of judgment by Watts bars further litigation of the matter. It is difficult to uphold this position in view of the fact that to do so would contravene the established right of the parties to a judicial determination of fault. The confession of judgment is fundamentally indistinguishable from the judgment in Childs. Each was a settlement agreed to by less than all of the actors, which required court approval only because of the posture of the case. In neither case was the plaintiff required to establish liability on the part of the consenting tortfeasor to obtain the judgment and in neither case was a determination of comparative fault made as a result of the judgment. The confession of judgment in the present case is insufficient to satisfy Guillan’s burden of proving he “is legally entitled” under 40-284(b) to recover as damages the underinsured motorist coverage from his insurer.
It is unfortunate the court in Haas chose to state the insurer “is bound by any judgment obtained in the action” without first defining “any judgment.” 236 Kan. at 683. However, within the context of that case, the statement is accurate. Haas arose out of the following set of facts: Haas filed suit against Freeman, and Horace Mann Insurance Company was joined as a party defendant. The insurance company was dismissed by the trial court on its motion, but the court ruled the insurance company would be bound by any judgment rendered. Haas appealed that ruling, arguing he had a right to include the insurance company in the action. The Supreme Court disagreed, finding, in an underinsured motorist action, the insurer may intervene or not at its own peril. The court assumed there would be a judicial determination of fault in these situations and that there would always be an “active opposing party and his insurer” forcing such a determination. 236 Kan. at 682. The central issue resolved in Haas was the effect of prior case law regarding uninsured motorist coverage on the relatively new underinsured motorist statute. The central issue was not the effect of a settlement between the plaintiff and the primary tortfeasor on the rights of the underinsured motorist insurance carrier. Guillan’s reliance on one statement lifted from the Haas decision is not persuasive and his position on the matter is not a correct statement of the law. The trial court did not err in finding Allstate was not bound by the confession of judgment.
III. Did the court err in instructing the jury?
Guillan also contends the trial court erred in not instructing the jury that it was unlawful to drive faster than 35 mph at the location of the collision.
“It is the duty of the trial court to properly instruct the jury upon the theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal. [Citation omitted.]” Trout v. Koss Constr. Co., 240 Kan. 86, 88-89, 727 P.2d 450 (1986).
“In a case involving a vehicle, the trial court has a duty to instruct the jury on the applicable traffic statutes. [Citation omitted.] A party is entitled to an instruction explaining his theory of the case where there is evidence to support it. [Citation omitted.] However, refusing to give an instruction is not error when its substance is adequately covered in other instructions. [Citation omitted.] A court should not by its instructions unduly emphasize one aspect of a case. [Citation omitted.]” Schallenberger v. Rudd, 244 Kan. 230, 232, 767 P.2d 841 (1989).
Two experts testified that Watts’ car was traveling between 40 and 45 mph at the time of the accident. The speed limit on 29th Street was 35 mph. Part of Guillan’s theory was that Watts was negligent by violating the speed limit.
Guillan requested that PIK Civ. 2d 8.01 concerning violation of law as negligence and PIK Civ. 2d 8.12 concerning speed limits be given. The trial court gave PIK Civ. 2d 8.01 and PIK Civ. 2d 8.12(a). PIK Civ. 2d 8.12(a) states: “The laws of Kansas provide that no person shall drive a vehicle at a speed greater than is reasonable under the conditions and hazards then existing.” Guillan objected to the court not giving PIK Civ. 2d 8.12(b), which states: “At the time and place and with the vehicle involved in this case, any speed in excess of [35] miles per hour was unlawful.” The trial court declined to give this instruction, stating it was a matter of common knowledge.
Clearly, there was evidence to support Guillan’s negligence per se argument and the court should have given the instruction. The instructions given by the court did not adequately cover this theory. The instructions read as a whole do not fairly instruct the jury on the law governing the case. In addition, because this is a close case, the potential prejudice to Guillan is increased. In this case, the jury split fault evenly at 50 percent. An instruction that any speed in excess of 35 mph was unlawful would strengthen Guillan’s case and increase the likelihood of a verdict in Guillan’s favor. We cannot conclude the trial court’s failure to give the instruction was harmless error.
IV. Is K.S.A. 8-1545(a)(2) unconstitutionally vague and indefinite?
Guillan contends that K.S.A. 8-1545(a)(2), upon which PIK Civ. 2d 8.22 is based, is unconstitutionally vague and indefinite. The trial court gave PIK Civ. 2d 8.22 in this case.
“ ‘In determining whether a statute is void for vagueness, two inquiries are appropriate: (1) whether the statute gives fair warning to those persons potentially subject to it, and (2) whether the statute adequately guards against arbitrary and discriminatory enforcement.’ ” State v. Larson, 12 Kan. App. 2d 198, 201-02, 737 P.2d 880 (1987) (quoting State v. Robinson, 239 Kan. 269, 273, 718 P.2d 1313 [1986]).
“[An appellate] court adheres to the proposition that the constitutionality of a statute is presumed, that all doubts must be resolved in favor of its validity, and before the statute may be stricken down, it must clearly appear the statute violates the constitution. Moreover, it is the court’s duty to uphold the statute under attack, if possible, rather than defeat it, and if there is any reasonable way to construe the statute as constitutionally valid, that should be done.” ’ ” Federal Land Bank of Wichita v. Bott, 240 Kan. 624, 628-29, 732 P.2d 710 (1987).
K.S.A. 8-1545(a)(2) states:
“Left turns. The driver of a vehicle intending to turn left shall approach the turn in the extreme left-hand lane lawfully available to traffic moving in the direction of travel of such vehicle. Whenever practicable a left turn at an intersection shall be made to the left of the center of the intersection, and any left turn shall be made so as to leave the intersection or other location in the extreme left-hand lane lawfully available to traffic moving in the same direction as such vehicle on the roadway being entered.”
Obviously, the statute is not a model of clarity. The second sentence beginning “Whenever practicable” is not particularly clear. This language is taken from Uniform Vehicle Code § 11-601(b) and is intended to facilitate the use of an intersection by left-turning cars coming from opposite directions and to provide a practical turning course for both large and small vehicles.
Although the statute is not well written, it does give fair warning to those subject to it. The statute directs drivers from which lane to begin the turn and from which lane to exit the intersection. It also directs drivers to turn left of the center of the intersection when practicable. Although this leaves it to the driver to determine when it is practicable, this does not render the statute unconstitutionally vague.
As we are reversing on other grounds, we need not address Guillan’s final issue concerning statements made by Allstate’s counsel during closing arguments.
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Davis, J.:
This is a direct criminal appeal from a minimum sentence imposed after Clinton Wayne Bruner entered a plea of nolo contendere to the charge of aggravated battery, a class C felony. K.S.A. 21-3414. He appeals from the sentence imposed, claiming that the trial court abused its discretion because it failed to adequately consider K.S.A. 21-4606(2) factors. We raise the issue whether we have jurisdiction to hear what appears to be a direct appeal from a denial of probation. We conclude that we do have jurisdiction and affirm.
Jurisdiction
Kansas appellate courts have frequently considered the issue of a criminal defendant’s right to appeal following entry of a guilty plea or a nolo contendere plea. The decision whether to grant probation is exclusively a function of the trial court pursuant to K.S.A. 1990 Supp. 21-4603 and, as a general rule, a decision denying probation is not subject to appellate review. State v. VanReed, 245 Kan. 213, 215, 777 P.2d 794 (1989). VanReed further notes that:
“In State v. Haines, 238 Kan. 478, 712 P.2d 1211, cert. denied 479 U.S. 837 (1986), rev’d on other grounds State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986), we specifically held that K.S.A. 22-3602(a) precludes a direct appeal of a denial of probation following a guilty or nolo contendere plea. In State v. Hamilton, 240 Kan. 539, 540, 731 P.2d 863 (1987), we explicitly reaffirmed Haines to the extent that it held that one who pleads guilty or nolo contendere may not appeal from a denial of probation.” 245 Kan. at 215.
Unlike VanReed, the defendant in this case was sentenced for a class C felony, a crime not involving a presumptive sentence of probation or assignment to a community corrections program. VanReed creates an exception to the general rule that there is no right of direct appeal from a denial of probation following a plea of guilty or nolo contendere in those circumstances to which a statutory presumption of probation applies. State v. VanReed, 245 Kan. 213, Syl. ¶ 4.
The defendant nevertheless argues in this case that he is entitled to appeal the imposition of a minimum sentence following a nolo contendere plea.
To understand the distinction the defendant draws, it becomes necessary to review decisions involving the jurisdictional question we are asked to resolve. In State v. Green, 233 Kan. 1007, 666 P.2d 716 (1983), overruled State v. Haines, 238 Kan. 478, 712 P.2d 1211 (1986), the Kansas Supreme Court examined K.S.A. 22-3602(a), which provides in relevant part that a criminal defendant cannot appeal “from a judgment of conviction before a district judge upon a plea of guilty or nolo contendere.” The court recognized a difference between appeals from convictions after a guilty or nolo contendere plea and appeals from sentences imposed. The court concluded that a defendant may appeal from a sentence imposed after a plea of guilty or nolo contendere. Green, 233 Kan. at 1011.
In State v. Haines, 238 Kan. 478, 479, 712 P.2d 1211, cert. denied 479 U.S. 837 (1986), the court held that, under K.S.A. 22-3602(a), a defendant may not appeal the sentence or denial of probation after a guilty or nolo contendere plea. However, the court subsequently overruled a portion of Haines, holding that K.S.A. 22-3602 does not preclude a defendant who pleads guilty or nolo contendere from directly appealing the sentence imposed. State v. Harrold, 239 Kan. 645, 649, 722 P.2d 563 (1986). In Harrold, the court stated that the defendant was appealing from the sentence imposed, not from a denial of probation. Thus, the jurisdictional issue was not considered. 239 Kan. at 649.
In State v. Hamilton, 240 Kan. 539, 540, 731 P.2d 863 (1987), the court specifically affirmed the rule from Haines that no direct appeal may be taken from a denial of probation after a plea of guilty or nolo contendere. Hamilton involved a direct appeal from defendant’s sentence after a guilty plea, but the trial court had imposed a longer than minimum sentence.
On the same date the court filed Hamilton, it also filed State v. Bennett, 240 Kan. 575, 731 P.2d 284 (1987). Bennett was also a direct appeal of sentences imposed after a plea of guilty, but the sentences imposed were minimum sentences. 240 Kan. at 577. The court made the following statement regarding its jurisdiction to hear the case:
“The State argues this court has no jurisdiction to hear this appeal pursuant to State v. Haines, 238 Kan. 478, 712 P.2d 1211, cert. denied 479 U.S. 837 (1986), because the defendant fails to allege that the sentence is the result of partiality, prejudice, or corrupt motive.
“State v. Haines, 238 Kan. 478, was overruled in part by State v. Harrold, 239 Kan. 645, 722 P.2d 563 (1986), which was decided after the parties’ briefs were submitted. In Harrold, a majority of this court held that, pursuant to K.S.A. 22-3602(a), a direct appeal may be taken from a sentence imposed when the defendant pleads guilty or nolo contendere. This court further held that it is not necessary to allege the sentence is the -result of partiality, prejudice, or corrupt motive in order to present a justiciable issue. 239 Kan. at 649. Therefore, this court does have jurisdiction to hear the defendant’s challenges to the sentence imposed.” Bennett, 240 Kan. at 576-77.
While the court did not hold that the defendant could directly appeal from the imposition of a minimum sentence after a plea of guilty or nolo contendere, it did in fact allow the appeal. We are presented in this case with exactly the same situation.
This court, in State v. Deavours, 12 Kan. App. 2d 361, 743 P.2d 1011, rev. denied 242 Kan. 904 (1987), held that an appeal from a denial of a motion to modify a minimum sentence after a plea of guilty was prohibited. Deavours, however, may be distinguished from Bennett in that the defendant in Deavours appealed from a denial of a motion to modify a minimum sentence. Under these circumstances, we concluded that defendant’s attempted appeal was equivalent to an appeal from a denial of probation.
The question we face here, which Bennett did not directly address, is whether an appeal may be taken from a minimum sentence imposed not involving presumptive probation after a guilty plea or nolo contendere plea when defendant challenges the imposition of the sentence rather than denial of probation or denial of a motion to modify the minimum sentence. We conclude that the defendant may appeal under these circumstances because his challenge is to the “sentence imposed.” Bennett, 240 Kan. at 576-77.
We implied in Deavours that there was a distinction between an appeal from denial of probation and imposition of sentence, stating: “See State v. Van Cleave, 239 Kan. 117, 123, 716 P.2d 580 (1986), where it was noted that if defendant’s appeal from a minimum sentence was an attack on the trial court’s failure to grant probation rather than an attack on the sentence, the court would lack jurisdiction.” 12 Kan. App. 2d at 362. Conversely, though not stated, the court would have jurisdiction if the appeal challenged the sentence imposed.
We recognize that the trial court has no power to impose a sentence below the minimum. Thus, even an appeal from a minimum sentence invokes the question of whether this is in actuality an appeal from a denial of probation. It would seem that an appeal from the imposition of a minimum sentence necessarily involves the trial court’s refusal to grant probation. Yet, an appeal from the imposition of sentence directly questions the discretion exercised by the trial court.
As long as trial courts have discretion in sentencing criminal defendants, questions will arise regarding how that discretion was exercised. Trial courts are required by statute to consider those factors set forth in K.S.A. 21-4606. Allowing appeals from even a minimum sentence will insure that criminal sentences are imposed in accord with K.S.A. 21-4606(2).
We therefore hold that we have jurisdiction to hear appeals from the imposition of minimum sentences not involving presumptive probation after a plea of guilty or nolo contendere.
The Sentence
The defendant argues that the court abused its discretion in not giving appropriate weight to the sentencing factors in K.S.A. 21-4606(2). When a sentence is imposed within the statutory limits, it will not be disturbed on appeal “provided it is within the realm of discretion on the part of the trial court and not a result of partiality or prejudice.” State v. Hamilton, 240 Kan. at 540. In this case, the penalty imposed was within the statutory limits. While it is helpful if a court specifically lists the factors considered, failure to do so is not necessarily an abuse of discretion. Each case must be considered on its own facts. State v. Harrold, 239 Kan. at 650.
Our review of the transcript of the sentencing supports the conclusion that the trial court considered most, if not all, of the sentencing factors listed in K.S.A. 21-4606(2). The court found that the defendant had a prior criminal record and continued to violate the law. The harm caused to the victim was serious and there was no indication that the defendant had any thought of how much injury he might cause the victim. Although there might have been some provocation, the court did not believe the victim’s actions justified such a violent retaliation. The court stated it would consider that there was some provocation and factor that into the ultimate sentence.
The presentence investigation recommended the imposition of a maximum sentence, but the court chose to impose only the minimum sentence. The court also considered the defendant’s ability to make restitution and concluded that the chances were slim of his ever paying for the medical expenses of the victim in the amount of $6,904.85.
While there were factors weighing in the defendant’s favor, such as remorse and lack of violence in his previous crimes, the trial court considered all the relevant factors and chose to order incarceration. The trial court did not abuse its discretion in sentencing the defendant to a minimum term of incarceration.
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Pierron, J.:
This is an appeal by the plaintiff, Kristie Aguirre, from the trial court’s dismissal of her petition under K.S.A. 60-212(b)(6) for failure to state a claim upon which relief can be granted.
For the purposes of this appeal, the facts are undisputed. The plaintiff was a 17-month-old infant at the time of the accident on November 25, 1986. The defendants are William and Betty Adams, who owned the apartments at 809 West 10th in Topeka, Kansas. The Aguirre family rented apartment No. 4 at 809 W. 10th in August 1986.
The Aguirres complained many times to the Adamses that there was no hot water in the bathroom. On several occasions the Adamses assured the Aguirres that a plumber would be out immediately to fix the problem. During the time the Aguirres lived in the apartment, Tammy Aguirre, the mother of Kristie, had to bring hot water from the kitchen sink tap to the bathtub in order to give Kristie a warm bath.
On the date of the accident Tammy was preparing Kristie’s bath in the usual way by bringing hot water from the kitchen sink tap to the bathtub. She had placed Kristie in the living room to watch television while she did this. She had filled two or three basins full of hot water from the tap in the kitchen sink and was on her way to fill another basin when she heard Kristie scream. Tammy immediately ran into the bathroom and grabbed Kristie out of the tub, contacted a neighbor, and rushed Kristie to the hospital. Kristie suffered second- and third-degree burns over much of the lower half of her body.
The plaintiff claims that the defendants breached a statutory and common-law duty to provide hot water to the bathtub. This duty is allegedly based on The Code of the City of Topeka, § 21-58, which is incorporated into the Kansas Residential Landlord/ Tenant Act pursuant to K.S.A. 58-2553(a)(1). The ordinance reads as follows:
“Sec. 21-58 Tub or shower. Within every dwelling unit there shall be a room which affords privacy to a person within the room and which is equipped with a bathtub or shower in good working condition. The bathtub or shower may be in the same room as the flush water closet or in another room and shall be properly connected to a water supply system which is approved by the appropriate authority and which provides at all times an adequate amount of heated and unheated water under pressure, and which is connected to a sewer system approved by the appropriate authority.”
The plaintiff alleges that the defendants’ breach of their statutory duties and breach of due care caused Kristie damages.
“When a district judge sustains a motion to dismiss a plaintiffs petition, we are under a duty to examine the petition to determine whether its allegations state a claim for relief on any possible theory. It is not necessary for the petition to spell out a legal theory for relief so long as an opponent is apprised of the facts that entitle the plaintiff to relief. Dismissal is justified only when the allegations of the petition clearly demostrate plaintiff does not have a claim. [Citation omitted.]” Wicina v. Strecker, 242 Kan. 278, 280, 747 P.2d 167 (1987).
The trial court dismissed the claim against the Adamses, finding that there was no causation shown. The court found the injury was not foreseeable and Tammy’s action was an intervening cause.
In order to have a claim for negligence the plaintiff must show breach of a duty owed by the defendant and damage to the plaintiff, and the breach must be the actual and proximate cause of the damage. Baker v. City of Garden City, 240 Kan. 554, 731 P.2d 278 (1987). In Baker, the court stated:
“The proximate or legal cause of an injury is that cause which in natural and continuous sequence, unbroken by an efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. [Citation omitted.]
“Whether conduct in a given case is the cause in fact or proximate cause of plaintiffs injuries is a question of fact for the jury. [Citation omitted.] However, where the facts are such that they are susceptible to only one inference, the question is one of law and may be disposed of summarily by the court when the plaintiff has failed to establish the necessary burden of proof. [Citation omitted.]” 240 Kan. at 557.
Forseeability is an element of proximate cause. Reece Constr. Co. v. State Highway Comm’n, 6 Kan. App. 2d 188, 191, 627 P.2d 361, rev. denied 230 Kan. 819 (1981). It is not necessary that a defendant should have been able to anticipate the precise injury. A defendant is not responsible for all possible consequences of his or her negligence, only those consequences which are probable according to ordinary and usual experience. 6 Kan. App. 2d at 191.
The trial court also found that Tammy’s action or nonaction in supervising Kristie was an intervening cause, superseding the Adamses’ negligence. One’s negligence is not the proximate cause of the damage if there is a “new, separate, wholly independent, and efficient intervening cause of the injury and the loss.” Finkbiner v. Clay County, 238 Kan. 856, 862, 714 P.2d 1380 (1986). Foreseeability is also a test in determining if an act of another insulates the act of the first tortfeasor. Schmeck v. City of Shawnee, 232 Kan. 11, 28, 651 P.2d 585 (1982). If the original actor could have reasonably foreseen or anticipated the intervening act in light of the circumstances, his act of negligence would be the proximate cause of the injury. 232 Kan. at 28. An intervening cause is material to the extent it “supersedes a prior wrong as the direct cause of an injury by breaking the sequence of events between the original wrong and the injury received.” Finkbiner, 238 Kan. at 862.
Kansas has not addressed facts similar to those presented here, but other jurisdictions have. See Annot., 63 A.L.R.4th 883. That annotation discusses cases where the lack of hot water has caused a tenant to take alternate means to heat water, and in the process small children were injured. In Bennett M. Lifter, Inc. v. Varnado, 480 So. 2d 1336 (Fla. Dist. App. 1985), rev. denied 484 So. 2d 7 (Fla. 1986), the hot water heater broke and the tenant’s child was injured when he bumped into his grandmother who was carrying boiling water to the bathroom from the kitchen stove. The court found whether the failure to provide hot water pursuant to the county ordinance was a proximate cause of the accident and whether the injuries were a foreseeable consequence of the landlord’s negligence were questions for the jury. 480 So. 2d at 1339. The court found the accident was not so bizarre or infrequent that reasonable people could differ on whether the landlord could anticipate it. Further, the court rejected the argument that the mother’s conduct was an intervening cause because she boiled the water instead of simply heating it and because she told the boy to go to the area where she knew the grandmother would be carrying the water. 480 So. 2d at 1339-40.
A similar result was reached by the federal court applying Illinois law in Enis v. Ba-Call Bldg. Corp., 639 F.2d 359 (7th Cir. 1980). There, the children were injured when boiling water spilled over from a kettle on the stove. The water was being used to supply heat because the landlord had failed to supply the minimum amount of heat required by local ordinance. The court found that whether the injury was foreseeable was not so clear as to take the decision from the jury.
A different result occurred in Martinez v. Lazaroff, 48 N.Y.2d 819, 424 N.Y.S.2d 126, 399 N.E.2d 1148 (1979), where the court found the failure of the landlord to provide hot water in compliance with law was not the proximate cause of injuries occurring when a child bumped into his father who was carrying hot water to the bathroom. It held the father’s action was an intervening cause. The failure to provide hot water, by itself, was not the cause and the injuries were not those normally expected from the landlord’s negligence.
In the instant case, although there was a violation of a particular ordinance, that violation was not the proximate cause of this injury. Noland v. Sears, Roebuck & Co., 207 Kan. 72, 483 P.2d 1029 (1971), and Jackson v. Wood, 11 Kan. App. 2d 478, 726 P.2d 796, rev. denied 240 Kan. 804 (1986), both stand for the proposition that fault can be assessed presumptively if the injury suffered was directly related to the ordinance violation involved. Noland involved an injury from falling due to the absence of a handrail, and Jackson involved asphyxiation due to an improperly vented device. The present case has no such direct nexus.
The plaintiff candidly admits that her cause of action is based on a deprival of supervision of the child due to the mother being required to fetch hot water. The plaintiff also candidly admits that the mother shares, perhaps substantially, in the causal fault, but contends the landlords cannot be totally absolved.
It is important in the analysis of this case to realize the injury caused by the hot water is only coincidental with the fact that the landlord was not providing hot water in all parts of the apartment. The facts of this case are not as substantial as those cited in the A.L.R. annotation. In the instant case the hot water was where it was supposed to be: in the bathtub. The problem was the child was not being supervised properly when she fell in. Under the plaintiffs theory the defendants are liable due to the mother’s absence at the time of the injury. Presumably, if the child had injured herself by falling on the bathtub or down some stairs, or had hurt herself in any other way due to the mother’s absence, the defendants would also be liable.
In retrospect it can often be said that, but for a certain fact, an injury would not have occurred. It is always tempting to find causality when the seemingly contributory factor was the result of a violation of a statute or ordinance. However, the injury must be an ordinary and natural consequence of the negligence. As Justice Cardozo said: “Proof of negligence in the air, so to speak, will not do.” Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 341, 162 N.E. 99 (1928).
In this case the causality is too attenuated to be legally cognizable. Although a given jury might find otherwise, there is no legal basis for submitting such a question to it. It would be possible to find a set of circumstances where the failure to provide hot water might lead to a sustainable cause of action. We do not have those facts here. The failure to provide hot water in the tub is not the creation of an inherently dangerous situation which makes the defendant an insurer for any occurrence which remotely arises from that situation.
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Brazil, J.:
Russell Arthur Dube appeals the trial court’s denial of his motion for relief from judgment pursuant to K.S.A. 60-260(b)(4). Specifically Dube claims the trial court impermissibly entered a judgment sua sponte on February 15, 1989, purporting to order arrearages for temporary support first awarded in 1981. We reverse.
Betty Jean W. Dube and Russell Arthur Dube were married on June 30, 1963. One child, Timothy Arthur Dube, was bom on August 1, 1964. On October 16, 1981, Betty filed a petition for separate maintenance, and, on October 20, 1981, Betty obtained a temporary support order for her and for Timothy beginning November 1, 1981. In addition Russell was ordered to pay $500, in $125 monthly increments, for Betty’s attorney fees.
The trial on the divorce action was conducted, and the final divorce decree was filed on March 7, 1984. (The record does not indicate how or when Betty changed her action from separate maintenance to divorce.) The final decree included a division of property, awarded no spousal maintenance, and specifically exempted Russell’s retirement pay, stating: “No award of the husband’s military retirement pay will be set aside to the plaintiff either as maintenance or as a division of marital property, the Court having made the finding that the plaintiff has adequate property with which to maintain herself.” The decree did not award maintenance for either spouse or child support for Timothy, who had then reached the age of majority. Nor did the decree award judgment for unpaid temporary maintenance, child support, or Betty’s attorney fees.
On March 16, 1984, Betty filed a motion for a new trial, claiming that the judgment was contrary to the evidence, that the journal entry of judgment and decree of divorce omitted the judgment in favor of plaintiff for support arrearage, that the court’s finding that plaintiff had adequate property to maintain herself and no part of defendant’s military retirement pay would be awarded as either maintenance or as a division of property was in error, and that the judgment awarded to plaintiff for her attorney fees was contrary to the evidence and therefore made quate. According to the motion, hearing was set for March 20, 1984, at 8:45 a.m.
The record includes a motion docket minutes sheet for the motion for a new trial dated in the heading March 20, 1984. The notation on the sheet shows the motion was dismissed, ostensibly for nonappearance, and is signed by Judge Ken Kimmel and dated March 16, 1984. No appeal was taken from this dismissal.
Nothing further is recorded until June 23, 1986, when Betty filed a motion to reinstate the motion for a new trial, claiming her motion for a new trial was dismissed without notice and prior to the date set for hearing. Betty has not explained why she did not appeal from the dismissal since she must have known about it when she went to court on March 20, 1984, the scheduled date of the hearing.
On June 24, 1986, Russell filed a motion to quash the motion to reinstate the motion for a new trial and also filed a motion for attorney fees. On January 8, 1987, the court granted Russell’s motion to quash but overruled Betty’s motion to reinstate the motion for a new trial and Russell’s motion for attorney fees.
On January 14, 1987, Judge Kimmel sent a letter to Betty’s attorney informing him that, after hearing argument and reviewing the file and the law, the motion for the new trial and other relief was overruled. Again, no appeal was taken from this ruling.
On March 5, 1987, the court, upon Betty’s oral application, entered an order nunc pro tunc adding the legal description for certain real estate that was part of the final divorce decree of March 7, 1984. The court also reiterated its finding that Russell’s military retirement pay was not subject to any award as maintenance or a division of marital property.
On April 19, 1989, the trial court entered an order purporting to award support arrearage based on the temporary support order first granted on October 20, 1981, and which ended when the final divorce decree was filed on March 7, 1984. In its order the court stated that a hearing on the merits of the issue had not been conducted. This statement directly contradicts the court’s order of January 8, 1987, overruling Betty’s motion to reinstate her motion for a new trial as evidenced by the court’s letter to counsel stating it had considered the merits (this included Betty’s plea for arrearages) and was overruling the motion.
By this action, in 1989, the court opened the door for Betty to file a motion to revive a judgment and begin garnishing Russell’s military retirement pay. In so doing, all the parties and the court accepted that the temporary support order was a final judgment capable of being revived. This is not the law.
Temporary alimony or support is also referred to as alimony pendente lite, interim alimony, or interlocutory alimony and “is an allowance by the court for the maintenance of a spouse during pendency of a matrimonial action.” 24 Am. Jur. 2d, Divorce and Separation § 558. “K.S.A. § 60-1607(c) allows a court to award maintenance pendente lite. . > . An award of temporary maintenance lies within the discretion of the court. The amount is subject to modification as the circumstances change. In any event, the temporary maintenance ceases when the divorce action terminates.” 1 Elrod, Kansas Family Law Handbook § 10.064, p. 10-39 (rev. ed. 1990).
In Edwards v. Edwards, 182 Kan. 737, Syl. ¶ 1, 324 P.2d 150 (1958), the court said: “An allowance of support . . . pendente lite . . . does not become a final judgment on which execution can issue, but is merely a temporary or ad interim, provision for their support until the final determination of the action.” Further, the court said:
“An order for support, such as [this] ... , is interlocutory in character, and, like other interlocutory orders made during litigation, remains solely in the sound judicial discretion of the court . . . and may be modified as varying circumstances justify during the pendency of the action in any form in the district court, even to the extent of discharging accrued and unpaid installments.” 182 Kan. 737, Syl. ¶ 2.
It is clear that in Kansas past due installments of permanent alimony and permanent child support “become a vested right and become final judgments, and may be collected as other judgments ... in this state.” Ediger v. Ediger, 206 Kan. 447, 455, 479 P.2d 823 (1971). When addressing the issue of past due installments of temporary support, however, the court in Edwards said: “[T]he rule that past-due installments for child support [or permanent alimony] ordered paid by the final decree become final judgments as of the dates due and may be collected in the same manner as other judgments, is clearly inapplicable to past- due installments of support allowed pendente lite.” 182 Kan. at 744. Further, the court said:
“[A]n order allowing temporary alimony is not in the nature of a final judgment on which execution can issue, nor is it a decree in equity for the payment of money. [Citations omitted.] No vested rights are acquired in the amount allowed. [Citation omitted.] Like other interlocutory orders, an order for support money pendente lite . . . remains solely in the sound judicial discretion of the court which made it [citations omitted], and may be modified as varying circumstances justify during the time the action is pending in any form in the district court, even to the extent of discharging accrued and unpaid installments. [Citations omitted.]
“[T]he past due installments . . . did not become final judgments . . . which could be collected by execution. . . . [T]hose installments, when due, were subject to enforcement by attachment ... or by contempt proceedings.” 182 Kan. at 744-45.
Under the holding of Edwards and the authorities which recognize that temporary support ceases to exist when the divorce action terminates, Betty cannot now attempt to revive a judgment which was not a final judgment. Likewise, the trial court could not, five years after the final divorce decree and on its own motion, attempt to revive an interlocutory support award.
Betty’s motion for a new trial was timely filed but dismissed. That dismissal was never appealed. Two years later, Betty filed a motion to reinstate the motion for a new trial. Such a motion was clearly out of time. The trial court, however, acted on that motion and overruled it. Again, Betty did not appeal. Two years later, the trial court, without a motion from either party, entered an order contradicting its overruling of Betty’s untimely motion to reinstate and awarded arrearages. This prompted Betty’s motion for revivor on the judgment and the subsequent court order reviving the same.
By filing the revivor action, it appears Betty was relying on the temporary support order as a final judgment. Edwards dispels that argument. If, however, Betty is claiming that the February 15, 1989, order, which was filed April 19, 1989, was the judgment giving her the right to support arrearages, there was no need for a revivor action because that judgment was not dormant.
There is no doubt the divorce decree filed March 7, 1984, was a final order. It is also without question that no permanent support was awarded to Betty nor was any child support awarded (the one child of the marriage had reached majority). Likewise, the court did not continue the temporary support. “[A] temporary alimony award pending the final judgment in the lower court is merged in the judgment and does not continue after the judgment.” Rankin v. Rankin, 275 So. 2d 283, 284 (Fla. Dist. App. 1973). Unlike cases where property division is not settled or alimony or child support is left open for the court’s final order or modification, this case left nothing open for decision.
The trial court had no authority to hear the motion to reinstate the motion for a new trial, which Betty filed two years after the fact. The court, however, did hear that motion, first overruled it, and then two additional years later purported to revive part of it with the April 19, 1989, order. Except for the nunc pro tunc order of March 5, 1987, every action the trial court took subsequent to the 30 days allotted for Betty to appeal the dismissal of her motion for a new trial was untimely and of no effect.
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Briscoe, C.J.:
Petitioner Patricia McPheter appeals the trial court’s refusal to consider respondent Gordon McPheter’s Navy reserve pay as domestic gross income, as defined in the 1990 Kansas Child Support Guidelines. Gordon cross-appeals, contending the trial court erred in finding him liable for 50 percent of the cost of transporting the children to his residence for visitation purposes and in calculating the extent of the abatement of child support payments during the months when the children are in his custody.
Since the parties’ divorce, their two minor children have resided with Patricia, with Gordon exercising his visitation rights. In 1988, the trial court awarded Patricia $710 per month in child support. That order was appealed on the same three issues presently before this court (In re Marriage of McPheter, No. 62,596, unpublished opinion filed May 12, 1989). This court upheld the trial court’s determination that Gordon’s reserve pay need not be included in calculating his domestic gross income due to the “iffy” nature of the job. This court also held that “[i]nclusion of visitation expenses lies within the court’s discretion” and that the trial court did not err in abating the entire amount of child support during the time the children were with Gordon.
The present journal entry provides that the costs of transporting the children during visitation will be split 50/50; that Gordon’s reserve pay not be included in computing his domestic gross income; and that Gordon receive a $300 annual reduction from child support payments for the time the children are with him. Therefore, no adjustment for the time the children spend with Gordon would be made in the child support calculations.
The standard of appellate review applicable to an appeal from a trial court’s order determining the amount of child support is whether the trial court abused its discretion. Thompson v. Thompson, 205 Kan. 630, 631, 470 P.2d 787 (1970). Judicial discretion is abused when action is arbitrary, fanciful, or unreasonable, which is another way of saying discretion is abused when no reasonable person would take the view adopted by the trial court. Stayton v. Stayton, 211 Kan. 560, 562, 506 P.2d 1172 (1973).
Patricia argues the 1990 Kansas Child Support Guidelines require the inclusion of the reserve pay as part of Gordon’s domestic gross income. “Domestic gross income” is defined as “income from all sources, excluding public assistance.” 1990 Kan. Ct. R. Annot. 58. “This includes every conceivable form of income, whether it be in the form of earnings, royalties, bonuses, dividends, interest, maintenance, rent, or whatever.” 2 Elrod, Kansas Family Law Handbook § 14.024, p. 14-11 (rev. 1990). Under prior guidelines, a party’s “gross income” was defined as “income from any source including imputed income, but does not include benefits received from public assistance programs.” 1988 Kan. Ct. R. Annot. 56. The definition has not changed substantially since the previous appeal; however, the specificity of the guidelines has changed.
The guidelines provide:
“The financial situation of the parties may be reason to deviate from the calculated Net Parental Child Support Obligation if the deviation is in the best interests of the child. If either party has more than one job, the circumstances requiring the additional employment should be considered. If the additional employment was historically relied upon by the parties prior to the dissolution of the relationship, then all of the income should be included in the calculation of the child support obligation. However, if the additional employment was secured after the dissolution of the relationship in an effort to meet additional financial responsibilities, consideration should be given to that circumstance, provided that the Court shall keep in mind the best interest of the child. In such a situation, two Worksheets can be prepared with one Worksheet including all income and the other Worksheet including only the primary employment to determine the margin for deviation. The amount considered should be entered on Line E.8.” 1990 Kan. Ct. R. Annot. 69.
Line E.8 of the worksheet falls under the “Child Support Adjustments” section.
“The party requesting the adjustment is responsible for proving the basis for the adjustment. For every Child Support Adjustment, it should be noted on the Worksheet whether the adjustment was considered or is not applicable to the particular case. If the adjustment is considered, the amount considered should be noted on the appropriate line in Section E. After all applicable Child Support Adjustments have been noted on the Worksheet by the Court, the amounts should be totaled.” 1990 Kan. Ct. R. Annot. 66-67.
This total is then added or subtracted, according to the trial court’s discretion, from the “Net Parental Child Support Obligation,” leaving the court with the “Adjusted Child Support Obligation.” This is the final obligation owed by each party.
At trial, Patricia testified that, prior to their divorce, Gordon’s reserve pay was used for family purposes. This statement was not rebutted by Gordon. The trial court, noting the adjustments section of the worksheet, held those adjustments remain discretionary. With this, we agree. However, the guidelines clearly indicate that, if the reserve pay was relied on by the parties prior to the divorce, then it should be included in the computation of Gordon’s domestic gross income. This language precludes the trial court from omitting the pay merely because the job was “ifiy.” Further, as the trial court acknowledged, it is difficult to consider Gordon’s reserve pay “ifiy” as he continued to receive this pay on a regular basis during the two-year period since the court last ruled on the issue. The trial court abused its discretion in not adding the reserve pay to the “Gross Income Calculation.” This opinion does not conflict with the previous opinion of this court because this case involves the more specific 1990 guidelines.
In his cross-appeal, Gordon contends the additional expenses of transporting the children during visitation periods should be borne by Patricia, since she is the one who moved. Patricia testified that she moved to obtain employment. Noting that Patricia had a legitimate reason for moving, the trial court ordered that the cost be split 50/50 by the parties.
The guidelines provide that “[a]ny substantial and reasonable long-distance transportation/communication costs directly associated with visitation shall be considered by the Court. The amount considered should be entered on Line E.l.” 1990 Kan. Ct. R. Annot. 67. The court should consider:
“a. who moved away, occasioning the additional expense,
“b. the reasonableness of the expenditure,
“c. the amount of expense incurred, and
“d. any other relevant factors which relate to whether the parties should be given a credit or share in the expense.” Kansas Family Law Handbook § 14.027, p. 14-17.
Any determination as to this section is to be noted in section E.l of the worksheet. Although it cannot be said that one party’s move to a distant location should not weigh against that party, the trial court thoroughly considered the issue and we-find no abuse of discretion.
Gordon also contends the trial court erred in calculating the extent of the abatement of child support payments during the months when the children are in his custody.
At trial, Patricia indicated her expenses are $300 per month less when the children are with Gordon. Apparently basing its decision on that testimony, the trial court held that Gordon would receive a “one-time $300.00 reduction in child support during [the] two-month summer visitation.” The trial court stated: “There will be no adjustment on the child support guidelines for time spent with a non-custodial parent because I have handled it in this fashion.”
The guidelines provide:
“The Court may consider giving credit for the time spent with the noncustodial parent, and when the time spent with the noncustodial parent exceeds thirty (30%) of the child’s time or when the noncustodial parent has the child for a single block of time (including custodial parent’s visitation) in excess of thirty days, the Court shall consider the increased costs to the noncustodial parent and the savings to the custodial parent and may adjust the child support accordingly.
“In instances when a child spends in excess of thirty (30) consecutive days with the noncustodial parent, the Court shall determine whether an adjustment in child support is appropriate, giving consideration to the fixed obligations of the custodial parent which are attributable to the child and to the increased cost to the noncustodial parent attributable to the child’s visit. Any reduction shall not leave the custodial parent with less than 33% of the Combined Total Child Support Obligation (Line D.6.).
“The amount considered should be entered on Line E.2.” 1990 Kan. Ct. R. Annot. 67.
Subsection E.2 of the worksheet falls under the “Child Support Adjustments” section. This section requires that the court consider any money saved by the custodial parent when the child is residing with the noncustodial parent. A review of the record reveals the trial court considered the factor. There was no abuse of discretion.
Reversed and remanded with instructions to consider Gordon’s reserve pay as income. If the trial court finds adequate reasons for deducting a portion of that income as an adjustment, the court should note this by referencing the amount in the adjustments section of the worksheet. The issues raised in Gordon’s cross-appeal are affirmed. | [
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Briscoe, C.J.:
Petitioner Dean Nice appeals a district court order that he pay Michael Albano and Jerold Bressel $10,000 in attorney fees for services rendered respondent Elizabeth Nice during a divorce action. At issue is the proper procedure to be followed by an attorney who has obtained a judgment for attorney fees against the opposing party in a divorce action and seeks enforcement of that judgment pursuant to K.S.A. 1990 Supp. 60-1610(b)(4).
The Nices were married on August 1, 1960, and Dean filed for divorce on May 7, 1986. In her answer, Elizabeth asked for an “order granting to the Respondent attorney’s fees and court costs.” As part of the divorce decree, Dean was ordered to pay $10,000 toward Elizabeth’s attorney fees. Elizabeth timely appealed to this court but the appeal was abandoned when the parties reached an agreement without benefit of counsel. The agreement apparendy provided that Dean increase his cash payments to Elizabeth from about $50,000 to approximately $90,000, and required that Elizabeth assume the obligation for all of her attorney fees. The agreement was submitted to the district court on July 26, 1988, but was never approved by the court and is not a part of the record on appeal.
On July 15, 1988, while the parties were working out their own post-divorce settlement, attorneys Albano and Bressel filed a motion to withdraw as counsel for Elizabeth, claiming she had failed to pay attorney fees. The motion to withdraw was granted on July 26, 1988, and, on August 15, 1988, Bressel and Albano filed a motion to intervene and a motion for an order of garnishment against Dean. The district court allowed counsel to intervene, affirmed its order that Dean pay $10,000 toward Elizabeth’s attorney fees, and amended its original memorandum decision to grant judgment to Bressel and Albano in the amount of $10,000.
Dean contends that, once attorneys have withdrawn from a divorce action, they do not have the right to intervene in the divorce action to seek enforcement of the court’s order awarding attorney fees.
K.S.A. 1990 Supp. 60-1610(b)(4) provides:
“Costs and attorney fees may be awarded to either party as justice and equity require. The court may order that the amount be paid directly to the attorney, who may enforce the order in the attorney’s name in the same case.”
Interpretation of a statute is a question of law, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. U.S.D. No. 352 v. NEA-Goodland, 246 Kan. 137, 140, 785 P.2d 993 (1990).
“In determining legislative intent, courts are not limited to consideration of the language used in the statute, but may look to the historical' background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under the various constructions suggested. [Citations omitted.]” Citizens State Bank of Grainfield v. Kaiser, 12 Kan. App. 2d 530, 536, 750 P.2d 422, rev. denied 243 Kan. 777 (1988).
This court interpreted 60-1610(b)(4) in In re Marriage of Marks, 13 Kan. App. 2d 1, 758 P.2d 257 (1988), and held the statute allows the award of attorney fees from one party to the other, or directly to the other party’s attorney, but does not authorize an award of fees in favor of an attorney against that attorney’s client. The court noted:
“The provision authorizing the award of costs and attorney fees directly to the attorney was added by the 1982 Kansas. Legislature. L. 1982, ch. 152, § 9. The Family Law Advisory Committee of the Kansas Judicial Council .. . said of this addition: ‘Subsection four relating to costs and fees was not changed, but a sentence was added allowing more practical enforcement of attorneys’ fees. This is consistent with § 313 of the Uniform Marriage and Divorce Act.’ [Citation omitted.] Section 313 of the Uniform Act and the comment following it read:
‘The court from time to time after considering the financial resources of both parties may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under this Act and for attorney’s fees, including sums for legal services rendered and costs incurred prior to the commencement of the proceeding or after entry of judgment. The court may order that the amount be paid directly to the attorney, who may enforce the order in his name.
‘COMMENT
‘The purpose of this section is to authorize the payment of costs and a reasonable fee by one party to the other party’s attorney if the court, after considering the financial resources available to both parties, determines the order to be necessary. The section extends authority to make several orders for costs and fees at different stages of the proceedings, and permits an attorney to enforce the order directly.’ [Citation omitted.]” Marks, 13 Kan. App. 2d at 2-3.
Considering the language of the statute, its historical background as discussed in Marks, and its obvious purpose, it is clear the legislature intended to allow courts to require one party to pay the other party’s attorney fees. It is also clear the legislature intended to allow attorneys to enforce an award in the same action in which the fees arose.
Here, the district court considered the parties’ financial resources in detail and ordered Dean to pay $10,000 toward Elizabeth’s attorney fees. At that time, Albano and Bressel were attorneys of record for Elizabeth and they did not move to withdraw until a year later. When Albano and Bressel withdrew, they said they were withdrawing because they might “need to pursue legal remedies in collection efforts that will result in a conflict of interest in future matters.” A reading of 60-1610(b)(4) leads us to a conclusion that this is the kind of situation the legislature intended to cover. The attorneys in this case proceeded properly in seeking enforcement of the judgment for attorney fees. The district court did not abuse its discretion in allowing their intervention.
As his second contention, Dean argues the outcome in this case should be controlled by his agreement with Elizabeth because it was drafted after the divorce was final. Specifically, Dean argues Elizabeth is obligated under that agreement to pay all of her attorney fees and he is relieved from the court’s prior judgment which required that he pay Elizabeth’s attorney fees.
“[A] journal entry of judgment entered in a matter is final and conclusive with regard to the issues decided.” Meyer v. Meyer, 209 Kan. 31, 39, 495 P.2d 942 (1972). In this case, the journal entry containing the order that Dean pay the $10,000 in attorney fees was filed on July 15, 1987. There were several motions filed, but none involved the court’s order that Dean pay $10,000 toward Elizabeth’s attorney fees. A final journal entry was filed on April 12, 1988. Although the parties apparently submitted an amended decree of divorce to the court for approval, the decree was never approved or filed by the district court. Thus, the journal entry ordering Dean to pay $10,000 toward Elizabeth’s attorney fees, as later amended to enter judgment in that same amount in the names of Elizabeth’s attorneys, is final and conclusive. Any subsequent agreement by the parties, without" approval of the court, has no effect upon and does not modify that order.
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The opinion of the court was delivered by
Price, J.:
The question in this case is whether the parents of a child who dies prior to birth as the result of another’s negligence have a cause of action under the wrongful-death statute.
The trial court held they do not and plaintiff parents have appealed.
A brief summary of the ¿mended petition follows:
For several months prior to February 29, 1960, plaintiff mother was pregnant and had been receiving prenatal care and treatment from her physician. On that date she was a fare-paying passenger in a taxicab owned by defendant cab company and being driven by defendant Schiesser. The cab was involved in a collision with a vehicle owned and operated by defendant Bright, and as a result thereof she sustained injuries. That evening she commenced to discharge blood and telephoned her physician. He prescribed certain medicines and bed-rest for three days. Several days later, on March 6, she experienced severe cramps and that evening, at the direction of her physician, was admitted to a hospital. At that time she was informed and believed that her pregnancy was intact, but early in the morning on March 7 severe cramping again occurred and she “was thereupon delivered of a perfectly formed male child, which did not survive birth.” The impact of the collision of February 29 caused the disruption of the placenta or afterbirth and was responsible for the inability of the placenta to retain its maternal attachment and caused the death of her child.
Allegations concerning the alleged acts of negligence on the part of defendants need not be noted.
Separate demurrers to the amended petition by the three defendants on the ground that pleading failed to state facts sufficient to constitute a cause of action were sustained — whereupon plaintiff parents have appealed.
By stipulation of the parties the appeal has been dismissed as to defendant Bright.
Our wrongful-death statute (G. S. 1959 Supp. 60-3203) provides that when the death of one is caused by the wrongful act or omission of another, an action therefor may be maintained against the wrongdoer if the deceased — had he lived — might have maintained an action against such wrongdoer for an injury for the same act or omission.
The statute malees it clear that the right of action created exists only in cases wherein the injured person could himself have maintained an action for damages, had he lived. It is clear, therefore, that plaintiff parents can maintain no action for damages on account of the death of the child unless the child, had he lived, could have maintained an action against defendants for the injury inflicted upon him before his birth — that is to say, unless the child, had he lived, could have maintained an action for his prenatal injuries.
Inherent, therefore, in the precise question presented here— that is, whether the parents may recover for the death of their stillborn child — is the further question whether the child, had he been born alive, could have maintained an action for prenatal injuries.
Although the question of the right of a child to recover for its prenatal injuries has not been decided by this court, the matter has been passed upon in a number of states as is shown by the annotations found at 10 A. L. R. 2d 1059 and 27 A. L. R. 2d 1256. One of the leading cases on the subject appears to be Williams v. Transit, Inc., 152 Ohio St. 114, 87 N. E. 2d 334, 10 A. L. R. 2d 1051 (1949), in which it was held that an unborn viable child injured by another’s negligence may, after birth, maintain an action for such injury. The rationale of the decisions supporting the right of a child to maintain an action for its prenatal injuries appears to be that an unborn viable child is capable of independent existence and hence should be regarded as a separate entity, and to deny it such right would bring about extremely harsh results.
On the second proposition — and which also is new in this state, that is, whether, under wrongful-death statutes similar to ours, parents can maintain an action for the death of their stillborn child allegedly caused by the negligence of another — the courts of other jurisdictions are divided, as is shown by the annotation on the subject appearing at 10 A. L. R. 2d 639, following the reported case of Verkennes v. Corniea, 229 Minn. 365, 38 N. W. 2d 838, 10 A. L. R. 2d 634 (1949).
In the Verkennes case, which was an action against the attending physician and a hospital, it was alleged that at the time the mother entered the hospital her unborn child was still alive and that such child, in the exercise of reasonable and prudent care on the part of defendants would have been born alive a normal and healthy child; that by reason of the failure of defendants to properly attend her the child died, and that their negligence caused the death of the undelivered child. The supreme court of Minnesota held that the action could be maintained under a wrongful-death statute substantially identical to ours.
In passing, it should be noted that since the Verkennes case was decided in 1949 the trend, as shown by the A. L. R. 2d Blue Book Supplement Service, has been to allow recovery under wrongful-death statutes for the death of a stillborn child allegedly caused by the negligence of another.
Our sister state of Nebraska has held otherwise in Drabbels v. Shelly Oil Co., 155 Neb. 17, 50 N. W. 2d 229 (1951). In that case it was alleged that a bottle of gas exploded on July 2, 1948, on which date the mother was approximately eight months pregnant; that her unborn child was viable and capable of separate and independent existence, and that three days later her child was born dead as a result of negligence on the part of defendant in that the container of bottled gas was defectively bottled. In the course of the opinion reference was made to the Williams case, above, relating to the right of a child to maintain an action for prenatal injuries, and to the Verkennes case, above, relating to the right to maintain an action for wrongful death of a stillborn child. The Nebraska court, however, adhered to the rule that an unborn child is a part of the mother until birth and, as such, has no juridical existence, and that since no cause of action accrued to the child born dead, for injuries received before birth, none survived to the personal representative under the wrongful-death statute. The opinion closes with the statement that an action for wrongful death, under the circumstances, may not be maintained unless and until the right to bring it is afforded by legislative enactment.
In Howell v. Rushing (Okla.), 261 P. 2d 217 (1953), the supreme court of Oklahoma was confronted with the identical question. The opinion notes that the plaintiffs relied upon the rule announced in the Verkennes case from Minnesota, above, whereas the defendant relied on the rule as applied in the Drabbels case from Nebraska, above. The court followed the Nebraska rule and denied recovery.
Much could be written on the question involved in this case. On the other hand, decisions from other jurisdictions are collected and discussed in the A. L. R. 2d annotations above referred to, and we therefore believe that no occasion exists for an extended opinion. The interested reader is referred to those annotations, and also to 16 Am. Jur., Death, § 75, p. 56, et seq., and 1961 Cumulative Supplement thereto, and to the case note on the subject at 9 Kan. L. Rev. 343.
For purposes of the demurrers the statements of the amended petition are to be taken as true. It would appear that inherent in the allegation that seven days after the collision plaintiff mother “was thereupon delivered of a perfectly formed male child, which did not survive birth” is the fact that on the date of the alleged negligent act the child was in a viable state. With full recognition of the fact there are decisions from other jurisdictions to the contrary, we nevertheless adhere to those cases which hold that under facts and circumstances similar to those here presented — an action for wrongful death may be maintained.
The orders sustaining the demurrers to the amended petition are therefore reversed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from a verdict and judgment in favor of plaintiff, a minor, in an action for personal injuries brought by his father and next friend, from the orders overruling defendant’s motion for a directed verdict at the close of the evidence and for a new trial, together with other orders that do not need immediate mention.
Plaintiff’s amended petition, in brief, alleged that on July 4, 1957, he resided with his parents southwest of Haven, Kansas, where they rented a farm dwelling. Immediately adjoining this home property on the east was a farm owned by Daisy Haines and operated by her and Dennis Haines. A. K. Schmidt was the agent, servant and employee of Daisy and Dennis Haines. Prior to July 4, 1957, Schmidt, in working as such farm employee of Daisy and Dennis, was using a 1955 model Massey-Harris tractor drawing a tandem disk. The tractor was started by use of an ignition key and a starter. It and the disk were new, bright red in color, and were attractive to children of tender years and particularly to this plaintiff, who was not a farm boy and was unfamiliar with such machinery. It was unknown to plaintiff whether this was normal farm machinery. Children in the area, including plaintiff, were in the habit of playing along the east side of their home area and along the west side of defendants’ farm within fifty feet of the fence line, and this was well known to defendants. Plaintiff had been seen so playing in the area by A. K. Schmidt. On July 3, 1957, at 7:00 p. m. Schmidt had carelessly and negligently left this tractor and tandem disk in gear and with the ignition key therein standing within approximately 100 yards of plaintiff’s dwelling house and about twelve feet east of the fence fine dividing the two tracts of land with full knowledge of the danger incident thereto.
On July 4, 1957, at 4:00 p. m. Plaintiff (then four years of age) and his stepbrother, Kenneth Snyder (then eleven years of age), crossed the fence onto the land of defendants and played upon the tractor and disk. Kenneth played with the ignition key and the starter of the tractor and caused the tractor to start and plaintiff in some way fell so that the disk ran and passed over his body.
Plaintiff was of too tender an age to appreciate the danger and risk of playing and riding on a tractor. His injuries were caused by defendants and their employee carelessly and negligently leaving, in the close vicinity of plaintiff’s home, the tractor and disk, which were attractive and in such condition they could be started and moved by children. Thus the plaintiff’s theory and cause of action was based upon the proposition that the tractor with the tandem disk thereto attached, under the surrounding facts and circumstances, constituted an attractive nuisance. Prior to trial the court below ruled plaintiff could introduce evidence that the key was in the ignition of the tractor, to which the disk was attached, and that the location of the machinery constituted an attractive nuisance but the evidence could not be introduced for any other purpose. The trial court’s ruling, the petition, and, of course, the record on appeal were all predicated upon the basis of attractive nuisance. It was also predetermined by the trial court that plaintiff could introduce evidence of the location of the farm machinery on July 3, 1957.
The record discloses further that the land of Daisy and Dennis Haines consisted of 110 acres of farm land about three miles west and one mile south of the rural community of Haven in Reno county, Kansas. The west fifty acres of the quarter section was owned by Forrest Smith and at the south end of Smith’s property there was a basement dwelling and small garden plot which he leased to plaintiff’s father in the fall of 1955. Just east of the basement home and on the Smith’s property was a ravine with the customary undergrowth found along brooks and streams that are dry part of the year. This ravine became deeper as it went north. Just beyond the ravine to the east on the dividing fine between the Smith property and the land of Daisy and Dennis there was a thick hedge fence which had breaks in the hedge so that people and objects on one side thereof could be seen from the other side. Cane, wheat, and maize (also called milo) were the principal crops planted and growing on both properties at the time in question. Measuring north and south, the south forty rods of the land belonging to Daisy and Dennis was planted in wheat. In the next forty rods of land to the north, the field of operations involved herein, Schmidt, on July 3, 1957, and at the direction of Dennis, had been reseeding the maize crop in that field. After he had double disked the ground, he left the tractor and attached disk at a spot approximately 150 feet south and fifty feet east of the northwest corner of this maize field, but about 10:00 a. m. on July 4, 1957, while drilling the maize crop with a smaller tractor, Schmidt had to move the tractor and disk. At about 5:00 or 5:30 p. m. on that same day Schmidt returned the smaller tractor and drill to the residence of Daisy and Dennis, which was about two miles distant from the field, and then he returned to get his pick-up truck. During the day on July 4, 1957, Schmidt had noticed two men and two boys (one of the men was plaintiff’s father and the boys were plaintiff and his stepbrother Kenneth) riding on a combine which was being used to cut the wheat on the Smith land to the north and west of the basement dwelling. As they often did, Kenneth and plaintiff took Kenneth’s RE gun and went hunting along the ravine on the Smith property and while there seems to be a conflict in the evidence as to whether Kenneth had previously seen the tractor and disk on July 3, 1957, or if he saw it first on July 4, 1957, just as they were opposite the opening in the hedge at the northwest comer of the newly-drilled maize field, Kenneth got onto the tractor, turned the key in the ignition, pushed the starter, used the clutch, placed the tractor in gear and with difficulty turned it around. Kenneth then asked plaintiff to get onto the tractor, which plaintiff finally did. After plaintiff was on the tractor, Kenneth again started it and plaintiff fell therefrom into the path of the disk and received very serious and permanent injuries.
Defendants filed motions during the trial and at the close of plaintiffs evidence Dennis and Schmidt joined in a demurrer thereto and Daisy demurred separately, which latter demurrer was sustained by the trial court and we have no appeal therefrom.
The demurrer of Dennis and Schmidt was overruled. However, at the close of all the evidence defendants moved for a directed verdict which the trial court also overruled. The ruling on that order is included in this appeal and in consideration thereof we shall proceed to the more vital question in the lawsuit which is whether a tractor and disk left in his employer’s field by a farm employee at the end of a day’s work is an attractive nuisance as a matter of law.
Kansas is primarily an agricultural state and since the community in and around Haven is entirely devoted to agricultural pursuits and it is undisputed there were more tractors than automobiles in the area, it is obvious that farming was practically all done by power machinery and the presence of many types of farm equipment was a common sight in the area. Plaintiff and his stepbrother Kenneth had lived in farm communities previously and were not strangers to general farm machinery. They had ridden on a combine with their father on the day in question and had been seen doing so by Schmidt. Generally during the planting season farmers do not move their machinery from the location where they are using it at the end of each day’s work. They customarily do not move machinery until they have fully completed the portion of the work requiring that particular equipment. Schmidt, after using the tandem disk on July 3, 1957, parked it on his employer’s private property.
Dennis, his employer, testified that on a previous occasion he had asked plaintiff to get out of the south field and go back home and later that day plaintiff told Dennis that plaintiff’s mother had also told him he was to stay on his side of the hedge fence and Dennis was supposed to stay on his side of the hedge fence. While it is true the children played up and down the ravine and in an open space between the ravine and the hedge fence, the evidence does not show that it was ever brought to the attention of Dennis or Schmidt that plaintiff or Kenneth on any other occasion than that mentioned above had been seen on either of the forty acre tracts planted to wheat and maize. When Schmidt finished drilling the maize with the small tractor, he took it to the residence of his employer, but he did not so return the large tractor with the tandem disk attached. If Schmidt had not completed his work with the tandem disk, he certainly could not be required to return it to the home of his employer each night, nor could any other farm employee or owner be required so to do under similar circumstances for the reason it would make operation, possession, or ownership of farm property and equipment burdensome instead of making it profitable or enjoyable. Such precaution would be impractical, unreasonable, and intolerable and would adversely affect the entire agricultural industry. (38 Am. Jur., Negligence, §147, pp. 812, 813; 65 C. J. S., Negligence, §29 [8], p. 465.)
An exhaustive annotation in regard to the doctrine of attractive nuisance as applied to vehicles or their contents is contained in 3 A. L. R. 2d 758-803, from which it appears to be well-settled that a vehicle in and of itself is not an attractive nuisance. However, there is little unanimity in the different court decisions where vehicles are left standing unattended except that one of the reasons advanced by courts for holding the doctrine of attractive nuisance inapplicable because of injury to a child by reason of a vehicle having been left unattended is that a vehicle, if properly parked, does not present any unusual attraction to children. In the above analysis we find in § 11, page 777, a discussion of cases where children put standing vehicles into motion and the general rule is that in a majority of those cases where a vehicle was left temporarily unattended and injury resulted to one or more children, liability under the doctrine was denied, and it was stated that where a tractor had been left unattended with a key in the switch and the tractor with trailer detached had been parked along a curb just as myriads of cars are, no unusual allurement was presented. Neither did the fact that the key was not removed from the ignition lock present such an allurement as to bring the case within the attractive nuisance doctrine because the presence of the key did not cause the children to trespass upon the tractor but was only something they discovered after they climbed thereupon. Attention is directed to this annotation for a complete and full disclosure of the care with which the courts of many jurisdictions have approached the subject of the doctrine of attractive nuisance. The overall impression created is that courts in dealing with the doctrine are striving to limit its application as much as reasonably can be done and yet not deprive one entitled to recover thereunder from seeking and obtaining a judgment.
Counsel in the case at bar should be complimented for the manner in which they have briefed the principal question and more particularly our Kansas decisions applicable thereto. In Brennan v. Kaw Construction Co., 176 Kan. 465, 271 P. 2d 253, the instrumentality in question was an elevator which served as a gradual incline for transportation of both men and materials from the ground to the roof of a house being constructed in a housing project. It had been left standing, openly exposed, and unguarded over the week-end because it was easier for the workmen and saved them time. This court held such elevator was not an attractive nuisance. At page 468 of the opinion in quoting from Pennington v. Oil & Gas Co., 106 Kan. 569, 189 Pac. 137, in essence it was stated that appliances there involved did no more to invite the curiosity and interest of children than do a corn sheller, feed grinder, cream separator, water pump, harvester, threshing machine, and many other similar instruments commonly used on farms, and such appliances could hardly be regarded as so unusual and alluring to children as to furnish the essential elements of dangerous attraction and invitation. On page 469 of the Brennan opinion this court, in quoting from Moseley v. City of Kansas City, 170 Kan. 585, 228 P. 2d 699, further stated that everything that may attract a child cannot be regarded as an attractive nuisance for there is no limit to the class of objects which may be attractive to a normal child even though he is less than ten years of age, and to hold otherwise would place an unreasonable burden upon the ownership of property capable of causing personal injury under any circumstances. The object must be one and so situated that the owner knew, or should have known, it was attractive to children of tender years.
The court in the Brennan case (p. 470) discussed the fact that attractive nuisance cannot generally be predicated upon a patent danger but must be based upon a latent danger. This likewise appears to be the general rule in most jurisdictions. (38 Am. Jur., Negligence, § 151, p. 818; 65 C. J. S., Negligence, § 29 [3], p. 461.)
We have not overlooked any of the many authorities cited by counsel but we think those discussed are sufficient.
We conclude the agricultural pursuits of the fanners of the state of Kansas should not be handicapped by their being required, at the end of each day’s work, to remove their farm machinery, over busy highways, from the fields in which they have been working to some sheltered place away from the eyes of farm children. And this would be a special handicap where, as here, children had not been known to and had not been seen by the farmer, or his employee, playing on the farmer’s private property where he, or his employee, performed work with the machinery involved, much less his having any knowledge or opportunity to gain any such knowledge that they had or would play upon such machinery. On the record before us we are constrained to hold the tractor and tandem disk attached thereto was not an attractive nuisance under the existing facts and circumstances and for that reason the trial court erred in overruling defendant’s motion for a directed verdict.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the Kansas Turnpike Authority, plaintiff below, from the orders of the trial court sustaining defendant’s demurrer and overruling defendant’s objection to plaintiff’s evidence, as well as from the judgment in favor of the defendant and the order overruling plaintiff’s motion for new trial.
This action commenced by the authority against Watson was based purely upon a contract entered into by the authority and Watson on April 15,1955 (attached as exhibit “A”) whereby Watson agreed:
“(a) To restore any damaged private property at his own expense; and
“(b) To assume all risk and liability for damage that may occur to property during the prosecution of the work under said contract by reason of negligence and carelessness of himself, his agents or employees; and to assume all direct or indirect damages that may be suffered or claimed on account of any construction or improvement; and
“(c) That payment or acceptance of his work by plaintiff would not be taken as a waiver of plaintiff’s right to demand and recover from defendant such damages as may be sustained by reason of defendant’s failure to comply with the aforesaid contract and specifications; and
“(d) To carry public liability and property damage insurance to protect the public from damage and injury resulting from his work done under said contract, and to file with plaintiff a certificate of such insurance issued by an insurance company authorized to do business in this state; that such a certificate of insurance was filed pursuant to defendant’s contract with plaintiff and a copy of that certificate is attached hereto as Exhibit ‘B’.”
The contract bond provided:
“The Principal ......... shall fully indemnify, compensate and pay the said Kansas Turnpike Authority for any and all loss, cost, damage or expense, which it may suffer, or be held responsible for, by reason of any negligence, defective condition, default, failure or miscarriage in the performance of said contract, whether by said Principal, sub-contractor or otherwise. . .
The proposal provided:
“All work to comply with the Standard Specifications for State Road and Bridge Construction, Edition 1955, of the State Highway Commission of Kansas, and all Supplemental Specifications and Special Provisions included herein.”
The standard specifications were:
“7.11. Preservation and Restoration of Property, etc. — The Contractor shall be responsible for the preservation of all public and private property, trees, monuments, etc., along and adjacent to the roadway; shall use every precaution to prevent damage or injury thereto; . . . When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect or misconduct in the execution of the work, or in consequence of the nonexecution thereof on the part of the Contractor, such property shall be restored by the Contractor and at the Contractor’s expense to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding or otherwise restoring same, or he shall make good such damage or injury in an acceptable manner.”
Finally, the provision covering responsibility for damage claims read:
“7.13. Responsibility for Damage Claims — The Contractor shall assume all risk and liability for accidents and damages that may occur to persons or property during the prosecution of the work, by reason of negligence or carelessness by himself, his agents or employees, and shall assume also all direct or indirect damage that may be suffered or claimed on account of any such construction or improvement. . . .”
The petition further alleged that an action was filed against the authority in November, 1956, by Carl J. Lynch wherein Lynch claimed certain damages, which petition was also attached as an exhibit to the petition in our present case. The action by Lynch was based on the statutory liability of the authority under G. S. 1957 Supp., 68-2015, which in pertinent part provides:
“All private property damaged or destroyed in laying out and constructing said turnpike project shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation made therefore out of funds provided under the authority of this act.”
See, also, Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 639, 305 P. 2d 849; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 749, syl. ¶ 4, 308 P. 2d 172; Hosterman v. Kansas Turnpike Authority, 183 Kan. 590, syl. ¶ 1, 331 P. 2d 323.)
That action was for damages to Lynch’s house and cattle proximately caused by the use of explosives in the construction of the turnpike. Lynch made no mention of Watson in his petition. The authority’s answer in that case contained the following statement:
“. . . that if, in truth and in fact, the property of plaintiff as described in plaintiff’s petition, was damaged by reason of acts or shocks and explosions caused by the use of dynamite or other explosives in connection with the construction of the Kansas Turnpike at or near said premises, said acts were carried out by, said explosives were used by, and said damage was caused by the independent contractor, M. W. Watson, doing business as M. W. Watson, Contractor, 1004 National Bank Building, Topeka, Kansas, who had the construction contract with the Kansas Turnpike Authority at the time and place alleged in plaintiff’s petition and designated as Project No. 6-23-E (1); that in its said contract with the Kansas Turnpike Authority, said contractor agreed to be responsible for any and all such damage as alleged in plaintiff’s petition and agreed to protect the public from damage and injury resulting from its construction work.”
The authority moved to make Watson an additional party defendant for the reason that he was a necessary and indispensable party for the complete adjudication of the issues; that he was the real party in interest since he contracted with the authority to protect the public from damage and injury by reason of his construction work and his inclusion would prevent multiplicity of actions.
The court order making Watson a party defendant after stating that the court “being advised that plaintiff has no objection to said motion” continued in pertinent part:
“. . . that M. W. Watson, doing business as M. W. Watson Contractor, is the real party in interest herein by reason of its having contracted with the Kansas Turnpike Authority to protect the public from damage and injury by reason of its construction work on the Kansas Turnpike; that M. W. Watson, doing business as M. W. Watson Contractor should be made an additional party defendant herein in order to prevent the multiplicity of legal actions.”
Watson demurred to “plaintiff’s Petition herein on the ground that the pleadings herein do not state a cause of action” against him and in favor of Lynch. (Our emphasis.) This demurrer was sustained by the trial court on May 29, 1958, and no appeal was taken therefrom. At the end of the hearing of all the evidence, Lynch was awarded $300.00 damages to his house, $2,700.00 damages to his cattle, and the trial court made the following conclusion of law:
“Such damages having been caused solely and proximately by the negligence and carelessness of M. W. Watson, doing business as M. W. Watson Contractor, an independent contractor of the Kansas Turnpike Authority in connection with the construction of the Kansas Turnpike, the defendant, Kansas Turnpike Authority is liable to plaintiff herein by reason of the statutory liability imposed by Section 68-2015, G. S. 1957 Supplement.”
Certain letters were attached to the authority’s petition in our present case which, in brief, conveyed the following information:
Exhibit C dated April 4, 1958, was written to Watson by the authority’s counsel and notified Watson of Lynch’s suit for damages against the authority. Carbon copy was sent to Watson’s insurance carrier, Western Casualty & Insurance Company, Fort Scott, Kansas.
Exhibit D dated April 8, 1958, was a letter from Watson to the authority’s counsel stating he had referred counsel’s earlier letter to his insurance carrier.
Exhibit E dated June 2, 1958, was final notice to Watson that the trial date of the Lynch case was set for Friday, June 6, 1958, and informed Watson the authority had no witnesses with which to make a defense and Watson’s refusal to defend would force the authority to sue Watson.
Exhibit F dated June 13, 1958, informed Watson of the judgment that had been rendered against the authority and because of Watson’s refusal to defend, which he was duty bound to do under his contract, the authority would be forced to file an action to recover the amount of $3,393.96 if not reimbursed therefor by June 30, 1958.
After the hearing in our present case of the testimony of Watson’s two witnesses, Kenneth W. Comfort and Floyd J. Williams, the former being an employee of Watson and the latter an employee of Perry Jones who, according to the testimony of these two -witnesses, was a subcontractor of Watson and the one who had actually done the blasting, it became apparent that Watson did have important witnesses and the only witnesses who could have been produced who would have presented any defense in favor of the authority and against Lynch in his prior action for damages. The fact that Watson had the only defense witnesses who could have been any assistance to the authority in the Lynch action but that these witnesses were not known to the authority is further born out by exhibit E in which the authority notified Watson of the date of trial and further stated:
“You should realize it is difficult for KTA to defend this case at this time since we have no knowledge of potential witnesses who worked for you since you did the actual construction of this road as an independent contractor.”
Obviously, the authority had no knowledge at the time exhibit E dated June 2, 1958, was written that Watson had had a subcontractor, named Perry Jones, who actually had conducted the work involving the explosions and blasting alleged to have caused Lynch’s damages.
Watson contends there was collusion with respect to the $3,000 judgment because the authority had drawn a journal entry of judgment in that amount prior to the trial, which had been approved by Lynch and the authority, and that collusion is the only inference to be drawn from such a circumstance. However, we cannot separate the fact that the judgment was for $3,000, although Lynch had sued for $3,600, from the fact that due to Watson’s refusal to defend as the authority requested, the authority was left barren of any defensive matter in the Lynch case, which would normally have resulted in Lynch getting the amount he sued for, or the sum of $3,600. We think the inference here is not collusion but that .the authority made the best settlement it possibly could when it had no defense to the action.
Watson’s next theory, and the one which seemed to be convincing to the trial court, was that the sustaining of Watson’s demurrer directed to plaintiff’s petition in the Lynch case, even though it stated that the pleadings did not state a cause of action against this defendant and in favor of plaintiff, was res judicata and absolved Watson from any and all liability. The position of the trial court was made quite apparent from its letter to counsel in this case, the pertinent portions of which are:
“I think that once Mr. Watson was made a party defendant in that case upon motion of the Kansas Turnpike Authority, and pleadings filed attempting to fix a liability on Watson for the damage, that then Mr. Watson was a party defendant for not only the issues which were tried but also for any issue which might have been tried as indicated by the pleadings.
“In that case defendant Watson filed a demurrer to the petition of the plaintiff for the reason that the pleadings in that case did not state a cause of action against Watson. The Turnpike Authority could have appealed from that ruling of the trial court but saw fit to let the ruling stand, and for that reason I think the Turnpike Authority is bound by the proceedings in that case.
“In addition to all of this, the judgment in the Lynch case was almost an agreed affair, the parties having stipulated to practically all of the facts upon which Mr. Lynch relied. There was some evidence in that case that Watson may have been responsible for the blasting complained of, but in this case the witnesses for the defendant, who were the actual parties doing the blasting, testified that another party other than Mr. Watson did the blasting. There may be some question as to the responsibility between Watson and the other subcontractor who was guilty of the blasting, but I do not think that that question materially affects the decision in this case because as indicated before, I think the rulings in the Lynch case are res judicata and settled.”
Although the authority raises six specifications of error, the fourth presents the major question here on appeal and that is whether the trial court erred in permitting the Lynch case to be reopened and retried in this action from which arose Watsons contention that the sustaining of his demurrer in the Lynch case was res judicata in this case.
Both parties cite and rely on McDonald v. Joint Rural High School District No. 9, 180 Kan. 563, 306 P. 2d 175, where the four elements necessary to establish res judicata are set out as follows:
“(1) Identity of the tiling sued for (2) identity of the cause of action (3) identity of persons and of parties to the action and (4) identity of the quality in the persons for or against whom the claim is made.” (p. 567.)
The authority contends the four elements are lacking herein while Watson contends they are present and Watson also wishes to take advantage of the following statement from the McDonald case:
“. . . not only are the issues chosen to be litigated finally determined but every other issue incidental thereto which could have been properly adjudicated therein is likewise determined.” (p. 567.)
Considering the first required element, damages were sought in the Lynch case, as well as in our present case, and that requirement is, therefore, satisfied. As to element (2), the cause of action in the Lynch case was based on statutory liability and in our case liability was based upon the contract between the authority and Watson for himself but also for his subcontractors. Therefore, identity of the cause of action is not present. We might pause here to say that under the contract between the authority and Watson, Lynch may have had a cause of action under a third party beneficiary theory, which subject was very ably discussed in Anderson v. Rexroad, 175 Kan. 676, 680, 266 P. 2d 320, but he did not see fit to pursue that remedy.
Lynch sued the authority under a statutory cause of action and recovered a judgment against the defendant authority thereon and under the statute (G. S. 1957 Supp., 68-2015) the authority had to satisfy the judgment. While the authority as defendant undertook in that action to include a third party beneficiary liability contract with Watson by having Watson made a party defendant, all of this was no defense in favor of the authority against Lynch’s statutory cause of action. (Anderson v. Rexroad, 178 Kan. 227, 230, 284 P. 2d 1077.) It should perhaps be stated that Lynch had no duty to wait in his lawsuit until everybody who might be liable to the authority had their rights litigated against the authority, or vice versa. For these reasons, res judicata cannot be claimed since all four elements were not present, and that being true, Watson’s second contention that every other issue which could have been litigated presupposed these four elements existed, as set out in the McDonald case above quoted, is likewise not tenable.
While there seems to be no controversy over the remaining question in regard to Watson’s duty to defend the authority under his contract with the authority, since he based his principal contention on the proposition that the ruling on his demurrer in the Lynch case was res judicata to this case, it is quite clear that when Watson was notified of the pendency of the action, the setting of the trial, and finally of the trial and judgment, and also that the authority was looking to him for recoupment of its loss by reason of the judgment and expenses in the case, Watson had the duty first to defend the authority, and upon his refusal so to do, he made himself liable not only for the amount of the judgment but also for the expenses of court costs and attorney fees. This has been the rule of this court in many cases including City of Topeka v. Ritchie, 105 Kan. 398, 184 Pac. 728, and City of McPherson v. Stucker, 129 Kan. 262, 282 Pac. 703, where it was said:
“It may be stated as a general rule that when a party is sued in an action and the circumstances are such that a third party is liable over to defendant in the event defendant is liable to plaintiff, and defendant notifies the third party of the action and requests him to defend, but he declines to do so, and the action proceeds to trial, resulting in a judgment against defendant, which he satisfies, and then seeks to recover from the third party, such third party is concluded by such judgment as to all material questions determined therein.” (p. 266.)
Another similar case is Olmstead v. Fidelity and Deposit Co., 138 Kan. 825, 28 P. 2d 722, where it was also said:
“It therefore appears that defendant’s contentions on this point are untenable. It was by its own choice that defendant refrained from participating in the earlier litigation. It had ample notice of it and of its possible consequences to the man to whom it had bound itself to save harmless from all outlay and expense to which he might be subjected on account of the contractual delinquencies of the principal on the bond. Moreover, it is now too late for defendant to urge legal points which might have availed it in the earlier litigation.” (p. 829.)
See, also, Anderson v. Rexroad, 180 Kan. 505, 510, 306 P. 2d 137.
Under the record in this case showing Watson’s definite refusal to defend the authority under the contract, which contract is before this court for consideration the same as it was before the trial court, and when by reason of such refusal the authority had a judgment rendered against it, we conclude the trial court erred in entering judgment that the sustaining of a demurrer in the original action between Lynch and the authority was res judicata to any and all liability of Watson under the contract whereby he was required to defend the authority and fully indemnify it as shown in the contract bond, the proposal, the standard specifications and the responsibility for damage claims heretofore set out.
Reversed. | [
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The opinion of the court was delivered by
Price, J.:
This was a subrogation action brought pursuant to the provisions of G. S. 1949, 44-504, as amended, and G. S. 1949, 44-532, to recover for personal injuries sustained by plaintiff, F’loyd C. Puckett, a pedestrian, when struck by a truck owned by defendant, Valentin Sheet Metal, and being driven by defendant, Paul M. Martin, Jr.
No questions under the workmen’s compensation act are involved in the case.
Puckett will be referred to as plaintiff and Martin as defendant. A jury trial resulted in a general verdict for defendant. No special questions were submitted.
Plaintiff has appealed from the order overruling his motion for a new trial and sets forth seven specifications of error.
The controlling question in the case is whether, under the evidence, the court erred in giving, over plaintiff’s objection, an instruction on unavoidable accident.
The answer to the question calls for a brief discussion of the evidence and the issues joined by the pleadings.
On the afternoon in question plaintiff had parked his delivery truck parallel to the west curb on a north-south street in Wichita. It was headed south. The street was thirty feet wide. After visiting with friends in a house nearby he returned to his truck. Reing concerned about the amount of air in his left rear tire — he started to check it. As he was at the northeast corner of his truck checking the tire his foot was run over by a wheel of defendant’s pickup truck, and he also was struck by a projecting rear-vision mirror on defendant’s truck. He was thrown about twenty feet by the impact.
Defendant’s truck was being driven north and at the instant in question was in the act of passing, on the left, another northbound vehicle. Due to the positions of the vehicles in question — although there was room to pass — it is apparent that it was a rather “close squeeze.” Defendant was issued a traffic ticket for “driving on the wrong side of the street,” and upon a plea of guilty was fined a nominal sum.
The petition charged defendant with various acts of negligence, including excessive speed and driving on the wrong side of the street.
The answer denied negligence and alleged that plaintiff’s injuries were solely and proximately caused by his failure to exercise ordinary care. As a further defense it was alleged that plaintiff was guilty of contributory negligence and that the accident was an unavoidable accident, for which defendant was in no way to blame.
The reply denied plaintiff’s negligence or contributory negligence, and specifically denied defendant’s allegation of unavoidable accident.
In a number of recent decisions the court has had occasion to discuss questions relating to the “unavoidable accident” instruction. A few of them are: Knox v. Barnard, 181 Kan. 943, 317 P. 2d 452; Schmid v. Eslick, 181 Kan. 997, 317 P. 2d 459; Carlburg v. Wesley Hospital & Nurse Training School, 182 Kan. 634, 323 P. 2d 638; Kreh v. Trinkle, 185 Kan. 329, 343 P. 2d 213, and Paph v. Tri-State Hotel Co., 188 Kan. 76, 360 P. 2d 1055.
No effort will be made to take up and discuss the facts of each of those cases but from them the rule is well established that, generaPy speaking, the term “unavoidable accident” excludes and repels the idea of negligence and refers to one which is not occasioned in any degree, either directly or remotely, by the want of such care as the law holds every person bound to exercise, and that it is an occurrence which is not contributed to by the negligent act or omission of either party. Furthermore, when an accident is caused by negligence there is no room for application of the doctrine of unavoidable accident even though, because of the circumstances, the accident may have been “inevitable” or “unavoidable” at the time of its occurrence, and one is not entitled to the protection of the doctrine if his negligence has created, brought about or failed to remedy a dangerous condition resulting in a situation where the accident is thus inevitable or unavoidable at the time of its occurrence.
Defendant recognizes and concedes that in the ordinary negligence case an “unavoidable accident” instruction is not required and, in fact, should not be given, and we are told that when the matter of instructions was discussed with the trial court some of the above-mentioned decisions, particularly the Kreh case, were considered. In support of the giving of the instruction it is argued that throughout the trial plaintiff sought to avoid his own misconduct by showing that its consequences were unavoidable insofar as his actions were concerned, and since the jury could reasonably have concluded that defendant was not negligent, the jury also could reasonably have concluded there was neither negligence nor contributory negligence, and therefore the case was peculiarly one in which the instruction was proper.
In our opinion defendant’s contention cannot be sustained.
There being no special findings, the basis of the jury’s verdict for defendant is of course not known. Re that as it may, from an examination of the record it is clear that the evidence was such that the jury could reasonably have concluded that this accident was the result of negligence on the part of either or both of the parties. The mere fact that it may have been “inevitable” or “unavoidable” at the time of its occurrence would not entitle either party to the protection of the doctrine of unavoidable accident where the situation thus brought about resulted from such party’s negligence.
Our conclusion, therefore, is that the instruction in question was erroneously given, and the judgment is therefore reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Robb, J.:
This is the sixth appeal to this court from rulings of the trial court involved in the administration of the estate of either Charles E. Snyder or Isabelle H. Snyder, both deceased. The previous appeals, all bearing the title, In re Estate of Snyder, appeared in the following reports: 179 Kan. 252, 294 P. 2d 197; 181 Kan. 222, 310 P. 2d 944; 187 Kan. 373, 357 P. 2d 778; 188 Kan. 46, 360 P. 2d 883; 188 Kan. 322, 362 P. 2d 651.
This appeal is from a judgment of the trial court in favor of appellee on a petition for allowance of demand in the estate of Charles E. Snyder whereby appellee received (1) $14,902.50 covering amounts set out in four checks totaling that sum, together with six per cent interest from the dates of the checks; (2) $20,000 representing the difference between the $35,000 worth of the Lavery Building in Leavenworth, Kansas, and the $55,000 for which it was sold to Isabelle by and through Charles, her husband, while he was acting as her confidential agent and representative, and (3) thirty shares of capital stock in the Manufacturers State Bank of Leavenworth, together with dividends thereon from the date of judgment. Facts surrounding the relationships of the parties have been fully set out in the previous Snyder cases and are to be found in the above-cited volumes of this court’s reports. Therefore, we shall not go into detail as to them at this time but will merely summarize them.
On September 4, 1948, Charles E. Snyder and Isabelle H. Benedict were married. Prior to their marriage and subsequent thereto Charles was Isabelle’s confidential agent and representative and acted for her in a fiduciary capacity in financial and business matters. Charles had two sons by a former marriage, Elmore W. Snyder II, and James N. Snyder. Charles died testate on May 3, 1953, and had designated James as executor and Elmore as alternate executor of his estate. James qualified as executor on June 2, 1953, and served in that capacity until 1955 at which time he resigned and Elmore qualified as executor. On June 30, 1953, the probate court appointed Fern E. Brunt and Hazel Campbell as guardians of Isabelle, their aunt, in the estate of Isabelle, an incompetent person. On January 23, 1954, as such guardians, they filed the petition for allowance of a demand that is the basis of the appeal now before us.
On June 19,1954, Isabelle died testate, having designated Charles as executor, and James as alternate executor, in her will. On March 10, 1955, James was appointed and qualified as executor of Isabelle’s estate, and on February 29,1956, this court in the first Snyder appeal (179 Kan. 252, 294 P. 2d 197) affirmed that appointment. This appeal became final on March 29, 1956. On August 11, 1956, Fern E. Brunt and Hazel Campbell were discharged in the guardianship proceedings. On February 15, 1957, James, as executor of Isabelle’s estate, petitioned for appointment of a special administrator for the purpose of filing claims in behalf of Isabelle’s estate against the estate of Charles. On March 1, 1957, Fern E. Brunt was appointed special administratrix to represent Isabelle’s estate in any claims against the estate of Charles, or the Manufacturers State Bank of Leavenworth, or in any litigation involving Isabelle’s estate and the estate of Charles and the Manufacturers State Bank, and she was authorized to file any necessary litigation in any court.
On September 12, 1957, without objection by Elmore on behalf of the estate of Charles, or by Elmore’s attorney, Fern was substituted as special administratrix of the estate of Isabelle in the petition for the allowance of demand which had previously been filed by her and Hazel as Isabelle’s guardians.
On July 28, 1958, the probate court denied the claims in Fern’s petition and on August 22, 1958, an appeal from this order was perfected to the district court. On April 23, 1959, and dates subsequent thereto including September 23, 1959, evidence was introduced before the district court which rendered judgment on December 2, 1959, and allowed the claims as fourth class claims, listing the property as follows:
“$3,000.00 with interest at the rate of 6% per annum from February 9, 1953.
“$4,000.00 with interest at the rate of 6% per annum from February 20, 1953.
“$4,000.00 with interest at the rate of 6% per annum from February 26, 1953.
“$3,902.50 with interest at the rate of 6% per annum from April 30, 1953.
“$20,000.00 with interest at the rate of 6% per annum from date of this judgment.
“30 shares of capital stock of the Manufacturers State Bank, together with all dividends received thereon after date of this judgment.”
On December 4, 1959, motion for new trial was filed, which was overruled on January 27, 1960. On January 29, 1960, notice of appeal to this court was filed which included, among other things, the order of the trial court made on January 27, 1960, overruling the motion of Elmore for new trial.
In addition to the foregoing, the trial court made the following findings of fact:
Approximately since 1947 Isabelle had been incompetent to transact business and during the two years preceding her death, she became totally incompetent. Prior to their marriage Isabelle maim tained a separate bank account and safety deposit box in the Manufacturers State Bank. Charles kept a detailed record of Isabelle’s property and affairs. At the time of the marriage the balance in Isabelle’s separate bank account was withdrawn and a new joint tenancy account for her and Charles was deposited in the bank. Her safety deposit box was released and a new lease contract made in joint tenancy in their names. The funds in the joint tenancy bank account belonged to Isabelle. Charles, without any showing of consideration or explanation for such transactions, withdrew from the joint account and placed in his individual account the following checks totaling $14,902.50:
February 9, 1953 .......................... $3,000.00
February 20, 1953 .......................... 4,000.00
February 26, 1953 ........................ 4,000.00
April 30, 1953 ............................ 3,902.50
Charles, as president of the bank, on or about February 10, 1953, sold the Lavery Building in Leavenworth to Isabelle, as above stated, by means of a check drawn on the joint account while he was also acting as the confidential agent and representative of Isabelle. Further, in that same capacity he had used joint bank account funds to purchase 196 shares of stock in the bank, thirty shares of which were assigned or transferred to Charles individually as follows:
December 8, 1951 ...................... 10 shares
March 21, 1952 ....................... 10 shares
January 6, 1953 .......................... 10 shares
No explanation of such transactions and assignments or the consideration therefor was shown. The estate of Charles should be required to account for and restore to Isabelle’s estate thirty shares of the bank’s capital stock together with the dividends thereon.
We should perhaps pause to explain that the 166 remaining shares of stock were the subject considered by this court in In re Estate of Snyder, 188 Kan. 322, 362 P. 2d 651.
A great deal of testimony was introduced in the trial of the case but it would be a burden and “rehash” of all that has been before this court in the five previous appeals if we were to set out such testimony and evidence.
The trial judge, who has been closely associated with all of these estate matters for the past several years, made his following oral statement a part of the record:
“This matter has been before the Court for months. This is not a sudden decision. This Court has studied and labored and belabored the questions involved for weeks and weeks and months and months, and the Court feels that I believe any Judge would have to render the same decision rendered in this case. That’s the way the Court has concluded. I want to say this, that I think in all matters here I wouldn’t accuse Mr. Charles E. Snyder of any dishonest intent whatsoever. I think Mr. Snyder was simply convinced that when Isabelle died that all these things would belong to him. I think Isabelle wanted him to have them in that event, and I think he just was so convinced that she would die first that he just got careless in the handling of these matters and handled these things as if they belong to him. Now, that’s the conclusion this Court has reached. It didn’t turn out that way, and, of course, no one ever knows when death will call anybody, and it just didn’t turn out that way.”
There is an abundance of substantial competent evidence in the record to support the findings of fact made by the trial court herein, and as was stated in In re Estate of Snyder, 188 Kan. 322, 324, 362 P. 2d 651, the conclusions of law follow as a matter of course. The statement of the trial judge, quoted above, which was termed an “oral finding” in the record, is also amply supported by substantial competent evidence. We conclude the trial court’s findings of fact and conclusions of law should be approved.
Elmore challenges the substitution by the probate court of Fern E. Brunt as special administratrix of Isabelle’s estate for Fern and Hazel as guardians of Isabelle’s previous estate. In order to put that matter finally at rest, it is held the substitution was proper and revivor proceedings were not necessary. G. S. 1949, 59-2206 provides that no probate proceedings commenced by a representative shall abate by reason of the termination of his authority. See, also, McDonald v. Carlson, 182 Kan. 480, 322 P. 2d 798. It should be noted that neither Elmore nor his counsel objected to the substitution at the time but have proceeded thereunder. The trial court did not err in any of the particulars of its judgment complained of herein.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
Morris sued the City in the court below alleging that the defendant City was maintaining a nuisance, and had caused his valuable home to be flooded with an extensive loss of personal property and damage to the house itself. After a trial to a jury, the court approved the verdict in favor of the plaintiff in the sum of $8,000. The City now appeals.
The principal question in this appeal is whether the city can be liable when it is apparent that it did not create the nuisance but merely maintained it and had knowledge of its existence.
In May, 1957, plaintiff entered into a contract to buy a house known in the record as 4754 Haskell avenue and located in Village Green Estates, which was at that time a residential area which had been developed outside the city of Kansas City. The house was near a drainage ditch or ravine which ran down and under Haskell ave nue. The street crossed this drainage way but a tube or pipe had been placed in the earthen fill to carry the water through. Shortly after the plaintiff signed the contract which carried a stated purchase price of $20,000, there occurred a flood on the drainage way and the basement of the house was flooded. The seller of the house advised plaintiff that he might rescind the contract to purchase the house and this was done. Later on, after further investigation, plaintiff testified he became convinced that the flood had been caused by a stump which had become caught in the drain through the street embankment causing the water to back up in the drain near the house. The plaintiff entered into a new contract to buy the house in which he agreed to pay a total of $19,500 plus other costs or a total of $19,900. The seller agreed to and did repair the damage to the basement. In July, 1957, all matters having been closed, plaintiff moved into his new home.
Shortly thereafter, on August 29, 1957, the Village Green Subdivision, including plaintiff’s house, was taken into the city of Kansas City.
In the early summer of 1958, plaintiff apparently determined that the drain through the street embankment was inadequate as it began to be apparent that it had difficulty in carrying off the water. Plaintiff notified the city engineer, the city attorney, and the mayor of the situation and discussed it with them. The assistant city engineer made a rather thorough inspection of the situation and reported to the plaintiff and the city officials that the drain through the embankment was inadequate. Later, both in July and in August of 1958, plaintiff’s house was flooded. On August 13 of that year, the city made another survey and reported that the culvert under Haskell avenue was only 36 inches in diameter and should not be less than 72 inches in diameter.
On November 17, 1958, at around 2:00 a. m., plaintiff’s basement became flooded to a depth of six feet. Plaintiff filed a claim against the city on January 6, 1959, based upon this last flood and later on May 11, 1959, filed the present action which is based only on the November 1958 flood.
As stated above, the theory of plaintiff’s action is that defendant city has been maintaining a nuisance which caused the flooding of plaintiff’s house. At the trial plaintiff proved the facts as above described, and also proved that defendant had been maintaining the roadway on Haskell avenue by showing work orders issued therefor from about January, 1958 until after the November flood. Part of the work had been the cleaning of the inadequate culvert or tube under the street.
At various points in the trial beginning with the demurrer to plaintiff’s evidence, the defendant raised certain legal contentions concerning plaintiff’s right to maintain the action. The defendant has preserved his points and argues them to this court. The real question is whether defendant is correct in its position, and not at which procedural stage the point was raised.
In the defendant’s brief its main point is stated graphically as follows: “In the instant case, the evidence is clear that the city did not create the inadequate drain complained of. Therefore, the city could not possibly be held liable on the grounds that it in any way contributed to the bringing about of the alleged nuisance in the first instance.”
The defendant then cites the case of Galleher v. City of Wichita, 179 Kan. 513, 296 P. 2d 1062, as an authority to clinch its argument and to show that it cannot be liable.
We fear that defendant overstresses the Galleher case, and has not carefully examined the facts. We quote from the opinion on page 517 as follows:
“The record is clear that defendant city did not create or maintain the dangerous place alleged to exist.” (Emphasis supplied.)
The opinion then proceeds to point out that the officials of the city had not instituted proceedings to abate the nuisance maintained and controlled by some other person under the provisions of G. S. 1949, 13-1417. Thus it is apparent that defendant errs in saying that defendant was not responsible in the Galleher case because it did not create the nuisance — it neither created it nor maintained the nuisance. It was charged only that the city should have brought an action to abate the nuisance. See also Rhodes v. City of Kansas City, 167 Kan. 719, 208 P. 2d 275; and annotation in 56 A. L. R. 2d 1415 at 1422 § 4 referring back to 75 A. L. R. 1204.
We would direct attention to the case of Lehmkuhl v. City of Junction City, 179 Kan. 389, 295 P. 2d 621, 56 A. L. R. 2d 1409, in which the city was held responsible for maintining a city dump as a nuisance, although its creation by the city seems at least problematical. It will, of course, be noticed that the Lehmkuhl case was decided in April and the Galleher case in May of 1956. Both are reported in the same volume of our reports. Both cases were de cided by a unanimous court. At least, it must be conceded that this court believed there was a difference in the two cases.
In Hendren v. City of Kansas City, 172 Kan. 56, 238 P. 2d 510, we find a case where the city was held liable for only maintaining an attractive nuisance on a portion of an unused street. It will be remembered that it was an attractive nuisance which was involved in the case of Galleher v. City of Wichita, supra, which was relied upon by the defendant city. In fact, cases almost as clear as the Hendren case are quite common in this jurisdiction, see: Kansas City v. Siese, 71 Kan. 283, 80 Pac. 626; Roman v. City of Leavenworth, 90 Kan. 379, 383, 133 Pac. 551; Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474.
There are a number of nuisance cases involving sewers in this jurisdiction, and it has always been the decision of this court that a city was responsible for damage caused if the sewer became a nuisance, Kansas City v. Slangstrom, 53 Kan. 431, 36 Pac. 706; King v. City of Kansas City, 58 Kan. 334, 49 Pac. 88; State v. Concordia, 78 Kan. 250, 96 Pac. 487, 20 L. R. A. (NS) 1050; Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798.
Moreover, we are inclined to believe that the defendant city owed a greater duty to fix this inadequate culvert because it in effect constituted a bridge over which a city street passed. It is an ancient rule that a city is responsible for the condition of the streets within its corporate limits. As we remember it, the rule goes back to the duty to keep the King’s highway in repair. But we need not trace the rule so far. We will cite only the opinion of Mr. Justice Brewer in Jansen v. City of Atchison, 16 Kan. 358, 380 et seq.; and also City of Eudora v. Miller, 30 Kan. 494, 2 Pac. 685; Comm'rs of Shawnee Co. v. City of Topeka, 39 Kan. 197, 18 Pac. 161.
The cases in this jurisdiction show that where a city has either created or maintained a nuisance liability attaches and we believe our decisions are in accord with the decisions in other jurisdictions, see cases cited in 75 A. L. R. 1197 and 56 A. L. R. 2d 1415.
In the case at bar, the city was maintaining what amounted to a dam, formed by the city street, on a natural drain. The city knew for many months if not for more than a year of the danger to the plaintiff. As the trial court said at one time, certainly the city with all the notice it had must be responsible.
Defendant contends in its brief that no nuisance existed. We cannot agree. Such a nuisance is defined generally in the second para graph of the syllabus in Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798, and we refer interested readers to that definition.
We have carefully considered the briefs in this case, but we find no error. Therefore, the judgment must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Parker, C. J.:
This workmens compensation case was instituted by Mary Phillips (hereinafter referred to as the claimant or appellant), as the widow of Clifford M. Phillips, deceased, against the employer, the Skelly Oil Company, a self insurer (hereinafter referred to as the respondent or appellee).
In submitting the cause to the Compensation Commissioner, now Compensation Director (see Laws 1961, Chapter 243, Section 7, now G. S. 1961 Supp., 74-710), the parties stipulated that the only question to be resolved in the proceeding was whether the accident arose out of and in the course of the decedent’s employment. A hearing resulted in an award to claimant, whereupon the respondent appealed to the district court.
After a full and complete trial in district court, in conformity with the provisions of Laws of 1955, Chapter 250, Section 10, now G. S. 1961 Supp., 44-556, that tribunal found, among other things, that the decedent’s accidental death did not arise either in the course of or out of his employment with the respondent. It then reversed the Commissioner’s decision and rendered judgment denying the claimant an award. This appeal followed.
In approaching questions raised by the appellant, all of which are based upon claims respecting the sufficiency of the evidence to sustain the trial court’s judgment in refusing an award, we deem it necessary to once again point out that on appellate review of such questions in workmen’s compensation proceedings (1) it is the function of the trial court not that of the appellate court to pass upon the facts and this court has no jurisdiction over questions of fact on appeal under the Workmen’s Compensation Act (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846; McDonald v. Rader, 177 Kan. 249, 277 P. 2d 652; Kafka v. Edwards, 182 Kan. 568, 570, 571, 322 P. 2d 785; LaRue v. Sierra Petroleum Co., 183 Kan. 153, 156, 325 P. 2d 59; Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 346, 356 P. 2d 804; Love v. Kirwin, 187 Kan. 760, 359 P. 2d 881; Price v. McSpaden, 188 Kan. 578, 581, 363 P. 2d 533; Lutz v. Gehring Contractor-Builder, Inc., 188 Kan. 690, 692, 366 P. 2d 281; Thompson v. Heckendorn Manufacturing Co., 189 Kan. 77, 367 P. 2d 72); (2) the question whether the disability of a workman is due to an accident arising out of and in the course of his employment is a question of fact and when it is determined by the district court will not be disturbed by this court where there is substantial evidence to sustain it (Gregg v. American Walnut Lbr. Co., 137 Kan. 201, 19 P. 2d 463; Kafka v. Edwards, p. 570, supra; LaRue v. Sierra Petroleum Co., p. 155, supra; Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 185, 334 P. 2d 370; Heer v. Hankamer Excavating Co., 184 Kan. 186, 187, 334 P. 2d 372; Grow v. Musgrove Petroleum Corp., 184 Kan. 800, 802, 803, 339 P. 2d 75; Shepherd v. Gas Service Co., 186 Kan. 699, 701, 352 P. 2d 48); (3) whether the judgment is supported by substantial competent evidence is a question of law as distinguished from a question of fact (Holler v. Dickey Clay Mfg. Co., supra; Pinkston v. Rice Motor Co., 180 Kan. 295, 299, 303 P. 2d 197; Snedden v. Nichols, 181 Kan. 1052, 1055, 317 P. 2d 448; McDonald v. Rader, supra, and cases there cited; LaRue v. Sierra Petroleum Co., p. 156, supra; Rakes v. Wright Cooperative Exchange, 185 Kan. 794, 347 P. 2d 389; Price v. McSpaden, p. 581, supra; Cross v. Wichita Compressed Steel Co., p. 346, supra); and (4) in reviewing the record to determine whether it contains substantial evidence to support the district court’s judgment, this court is required to review all the evidence in the light most favorable to the party prevailing below, and if there is any evidence to support the judgment it must be affirmed even though the record discloses some evidence which might warrant the district court making a contrary decision (Rothman v. Globe Construction Co., 171 Kan. 572, 574, 235 P. 2d 981; Barr v. Builders, Inc., 179 Kan. 617, 296 P. 2d 1106, and cases cited at page 619 o£ the opinion; Pinkston v. Rice Motor Co., p. 299, supra; Snedden v. Nichols, p. 1055, supra; Allen v. Goodyear Tire & Rubber Co., pp. 185, 186, supra; Heer v. Hankamer Excavating Co., p. 187, supra; Rakes v. Wright Cooperative Exchange, p. 794, supra; Shepherd v. Gas Service Co., p. 699, supra).
Many decisions supporting the foregoing rules appear in the opinions above cited. Numerous other decisions of like import will be found in Hatcher’s Kansas Digest [Rev. Ed.], Workmen’s Compensation, § 153, and West’s Kansas Digest, Workmen’s Compensation, §§ 1940 to 1969, inch
There is little, if any, dispute between the parties as to the evidence regarding the facts to which we shall now refer.
Appellant’s husband was a pumper and had been an employee of the respondent since 1932. One of several leases assigned to him by respondent in that capacity was the C. T. Grizzell lease situated in Rice County. In general his duties as pumper entailed such matters as checking pump motors, greasing pump valves, treating the wells with corrosion-inhibitives, gauging storage tanks, and tabulating a daily log of what the pumps on divers leases were doing in volume. He was paid on the basis of a forty-hour week, plus a mileage fee on estimated and predetermined number of miles for traveling from lease to lease. He was free to perform his work at his own discretion but was expected to put in as many hours as were necessary to complete the work of his assigned job.
On the afternoon of August 23, 1959, the decedent, Clifford Phillips, after working on nearby leases came by his home in the City of Chase at approximately 4 to 4:30 p. m. before leaving to service a pump on the Grizzell lease, which was located some six or seven miles away. This was his first trip to the Grizzell lease that day. By way of explanation it should be stated that the Grizzell lease is traversed by Cow Creek from northwest to southeast and flows approximately 100 feet west of the well.
Some fifteen minutes after leaving his home, to be exact at about 4:45 p. m. on the date in question, the body of Mr. Phillips was found on the bank of the west side of Cow Creek, approximately 350 feet northwest of the well. His left leg was extended as if he had been sitting with his right leg more or less folded under his left leg. He had fishing tackle and bait with him and when his body was found there was a fishing rod and reel lying along his left arm. The end of the rod was partially in the water. The line and the hook, with a worm on the end of the hook, were also in the water and there was a can of bait nearby. A subsequent investigation disclosed that a stray bullet from a squirrel hunter’s rifle had caused his death. The evidence also disclosed that the decedent had not started any process at the well, circulating the well or any other thing, prior to the time of his death on the day in question.
The appellant recognizes the force and effect to be given the rules to which we have heretofore referred and, with what we deem is commendable candor, seems to concede that, limited to the uncontroverted facts heretofore related, application of the foregoing rules would require an affirmance of the involved judgment. Notwithstanding, she strenuously contends such judgment is not supported by substantial evidence because certain testimony adduced in her behalf in the court below was to the effect her husband’s fatal accident arose out of and in the course of his employment in that, although he was engaged in fishing at the time of his death, (1) he was checking on a driftwood jam in the creek and (2) in fishing he was following an established custom of the pumpers in the oil industry, all within the consent and knowledge of the appellee.
The trouble with all arguments advanced by appellant in connection with the claim now under consideration is that she either overlooks or chooses to ignore the fact that the evidence of record on the two factual questions, hereinabove identified as (1) and (2), was highly conflicting; and that the trial court determined, on the basis of what a review of the record discloses to be substantial evidence, in its special — as well as its general — findings, that at the time of his accidental death appellant’s decedent was not checking on a driftwood jam in the creek or fishing pursuant to an established custom of pumpers in the oil industry, with the consent and knowledge of his employer, and therefore did not meet his death by accident arising out of and in the course of his employment.
Having determined the record discloses evidence sufficient to warrant the action of the district court in denying an award application of the established rules, to which we have previously referred, governing the disposition of appeals to this court in workmen’s compensation cases requires that its judgment be affirmed.
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The opinion of the court was delivered by
Price, J.:
This was a replevin action brought for the recovery of cattle. Judgment was for plaintiffs and defendant has appealed.
Highly summarized, the background of the matter is this:
In the fall of 1959, and for some time prior thereto, plaintiffs were a partnership engaged in the buying, selling and trading of cattle and other livestock in the Wichita area. On several occasions one Cunningham had attempted to purchase some cattle from them, purportedly for his brother in Oklahoma. On October 8, 1959, Cunningham and plaintiffs went to a farm near Augusta, at which place Cunningham culled forty-eight head of cattle from a large herd owned by plaintiffs. The forty-eight head were then taken to Douglass where they were weighed and priced from thirty to thirty-two cents per pound. They were then trucked to plaintiffs’ pasture where they were combined with twenty-nine head already located in a pasture near where Cunningham lived. Cunningham was given a piece of paper upon which were marked the weights and sale price of the seventy-seven head, and it also contained the words “Sold to Cunningham.” The total sale price was $9,571.90.
On October 14th Cunningham gave to plaintiffs his check drawn on an Oklahoma City bank for the above amount. On the same date plaintiffs gave Cunningham their check drawn on a Wichita bank in the amount of $275.15, which was marked “Commission on 77 head cattle.” This check was given to Cunningham at his request so that he could show it to his brother in Oklahoma. At the trial plaintiffs testified that this check was given for the purchase of feed.
In the meantime Cunningham had approached the defendant McMinn, an experienced cattle buyer and trader in the area, and offered to sell him some cattle. At first defendant appeared uninterested. Finally, on October 16th, after considerable negotiating, Cunningham and defendant went to look at the seventy-seven head of cattle which were still in plaintiff’s pasture where they had been taken on October 8th. Defendant was shown the weight tickets and sale price which plaintiffs had given to Cunningham, and they struck a bargain whereby defendant purchased the cattle for $6,000 cash and four head of ponies. This sale figured out on the basis of approximately twenty-one cents per pound. Defendant went to his bank, borrowed money and received a cashier’s check in the amount of $6,000, which he turned over to Cunningham. On Sunday, October 18th, defendant went to the pasture where the cattle were located and drove them approximately three miles to his own pasture.
On October 20th a deputy sheriff went to defendant’s farm and advised him there was some “trouble” concerning the cattle. A few minutes later the plaintiffs arrived and a discussion was had concerning the events that had occurred in connection with the cattle. They asked defendant to stop payment on his check, but he advised them that the check he had given to Cunningham was not his own but a cashier s check. In the meantime, the check on the Oklahoma City bank given by Cunningham to plaintiffs, and which had been held by them for several days, was found to be worthless, and plaintiffs had gone to the county attorney about the matter. As a result, a warrant was issued for Cunningham charging fraud and the issuance of a bad check.
In the meantime, Cunningham had “departed for parts unknown.”
This replevin action was filed on October 23rd.
After hearing considerable evidence the trial court rendered judgment in favor of plaintiffs and in doing so made findings of fact. Finding No. 2 was that plaintiffs and defendant had been engaged in the buying and selling of cattle in the area for some years and were acquainted with the fair and reasonable market value of cattle during October, 1959. Finding No. 6 was that the fair and reasonable market value of the cattle in question on October 8th and October 16th was between twenty-eight and thirty-two cents per pound. Findings Nos. 7 and 8 were:
“On October 16th, 1959, Cunningham sold the cattle to defendant McMinn for approximately twenty-one cents per pound which amount McMinn knew was well below the market, and sufficiently so as to put him on inquiry and investigation of Cunningham’s title to the cattle.”
“The cattle had been fed and pastured by plaintiffs who held possession of them until they were removed by defendant McMinn on October 18, 1959, without the knowledge of the plaintiffs.”
The court concluded that there was no payment to plaintiffs and that title vested in them at the time the action was filed, and entered judgment accordingly. His post-trial motions being overruled, defendant has appealed.
Defendant’s contentions are based upon three propositions— (1) title to the cattle was not vested in plaintiffs at the time the action was commenced; (2) plaintiffs, as vendors, are estopped from claiming title to the cattle sold by their fraudulent vendee to defendant, a bona fide purchaser, and (3) when two persons are equally innocent in their transactions with a fraudulent third person, and one of them must stand a loss as a result of the fraud, equity will not permit the one to recover who started the chain of events that resulted in the loss and who had at hand the means of protection but failed to avail himself of them. (Grain Co. v. Harbour, 89 Kan. 824, 133 Pac. 565, 47 LRA (NS) 173; Luzadder v. Hale, 118 Kan. 85, 233 Pac. 1046; Nelson v. Lewis, 143 Kan. 106, 53 P. 2d 813.)
There appears to be very little dispute between the parties as to the rules of law applicable to situations of this nature — but they are in sharp dispute as to the correctness of some of the trial court’s findings — particularly finding No. 7, above — and the conclusion based thereon.
It is clear that inherent in each of the three contentions made by defendant is the proposition that tire facts established him to be a bona fide purchaser of the cattle — that is, an innocent third party. The trouble, from his standpoint, is that upon disputed evidence the trial court found otherwise on that pivotal question, and after a careful examination of the record we are unable to say such finding is unsupported by the evidence. We therefore are bound by it. Had the trial court found otherwise on that point the many decisions relied on by defendant would be applicable and perhaps would compel a different result. Concededly, there are some “close” questions in this case, but in view of the trial court’s findings the judgment, which is supported by them, must be affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an appeal in a habeas corpus action by a mother, who was previously given the custody of her four minor children by a foreign divorce decree, from the decision of the district court of Johnson County, Kansas, changing custody of the two oldest children to the father.
The question presented is whether the trial court had jurisdiction to change custody.
The parties formerly lived in Texas where the father was finishing medical training. They had four children who were at the time of trial in this action 11, 8, 6 and 5 years of age. In 1958 the father filed an' action for divorce in Ft. Worth, Texas, and on the 17th day of July of that year the Texas court granted the mother a divorce on her cross petition. It also granted her the custody of the four children. On this point the Texas decree reads:
“(b) That the defendant be, and she is hereby, awarded the care, custody and control of said minor children during 10 months of each year hereafter, with the exception of & of the yearly Christmas holidays, and that the plaintiff be awarded the care, custody and control of said named minor children two months yearly during the summer school vacation, and K of the Christmas holidays each year hereafter.”
The decree further ordered the father to pay child support in the sum of $160 per month until the youngest child shall have reached the age of .18 years, “with the exception that the plaintiff shall not make such payments during the time said children are in his custody.”
Following the Texas divorce both parties left that state, the mother went to Maryland and the father to Oklahoma and later to Kansas in Johnson County. At the time of the hearing both parties had remarried, the mother, now Carolyn Tompkins, lives in Bellevue, Washington, near Seattle, and has the two youngest children with her at that place.
On the 22nd day of June, 1960, at the end of the school term, the father assumed his summer custody of the two oldest children, taking them from Maryland where the mother and all of the children then resided, and brought them to Prairie VPlage in Johnson County, Kansas. By the end of the two-month period, during which the father was entitled to the children’s custody under the Texas divorce decree, the mother and her husband had moved to the state of Washington. The father refused to return the two children and enrolled them in school at Prairie Village.
On the 20th day of September, 1960, the mother filed her application for a writ of habeas corpus in which she alleged that she “has requested and demanded respondent obey the order of the court but the respondent has failed, neglected and refused to so comply, is in defiance of the said Texas court order and restrains said children at 5408 West 71st Street, Prairie Village, in Johnson County, Kansas, where respondent resides, all without just cause or pretense of a legal right to do so.” She further alleged:
“That said restraint imposed by the respondent upon the liberties of the said children and the rights of the applicant to their custody is illegal, without right and is in open violation of the terms and provisions of the said order of the Tarrant County, Texas District Court, said order being a valid subsisting and unmodified decree and determination of the custody rights of applicant and respondent and entitled to full faith and credit and enforcement herein.”
Hearing on the mother’s application was set for the 26th day of September, 1960, at which time the father appeared and filed a pleading in the nature of an answer and cross petition designating it “Response to Application for Writ of Habeas Corpus.” In his response the father admitted that he assumed the summer custody of the two oldest children, and that he did not return the said children to the custody of the mother for the reason that it was to the best interests of said minor children to remain in his home. He further alleged:
“4. That the petitioner herein violated the terms and provisions of the decree of divorce entered by the Tarrant County District Court in that she failed and refused to permit respondent to have custody of the minor children for the Christmas holiday period of 1959, and further refused to permit respondent to have custody of the two youngest children of petitioner and respondent during the summer of 1960.
“5. That respondent specifically denies that he or anyone in his behalf has placed any restraint upon the liberties of the two children herein involved and further denies that the decree of divorce alluded to in the application herein filed is entitled to full faith and credit or enforcement herein.
“6. For further answer, respondent states that by reason of change in conditions the petitioner herein is not a fit and proper person to have the care, custody and control of the minor children of petitioner and respondent, but that respondent is a fit and proper person to have the care, and control of all of the minor children of said petitioner and respondent.”
He further alleged the two oldest children were residing with and domiciled at his home in Johnson County, Kansas; that the court had jurisdiction of the parties and the two minor children who were residing within the jurisdiction of the court; and that the court had jurisdiction to award him the custody, control and maintenance of said minor children.
In his prayer the father requested the writ of habeas corpus be quashed and denied; that he be given the care, custody and control of the four minor children; and that the mother be required to give the physical custody of the two youngest children to him.
At the trial both parties appeared personally. At that time the mother by motion attempted to challenge the court’s jurisdiction to proceed upon the father’s motion for affirmative relief, and requested the court to confine the issue to the enforcement of the Texas decree. In support of her motion the mother argued that the father had made no attempt to challenge the validity of the Texas decree; that the presence of the two oldest children in Kansas was in the nature of a visitation; and that they were in Kansas at the time of the hearing only because the father had taken it upon himself to extralegally hold the two oldest children in Kansas in violation of the terms of the Texas decree.
The mother’s motion was overruled, and the trial court’s jurisdiction to proceed on the father’s request for affirmative relief was continually challenged at all appropriate times and again upon the motion for a new trial.
The trial court found that the two oldest children were at the time of trial domiciled in Johnson County, Kansas, and that they were within the jurisdiction of the court. It further found that it was in the best interest and welfare of said minor children that their custody be changed from the mother to the father, subject to rights of visitation which were specifically spelled out, and further conditioned upon the requirement that the mother give a bond to insure that she would comply with the order of the court. The mother’s writ was denied and she has duly perfected an appeal.
The application for the writ of habeas corpus herein was designed only to test the immediate right to possession of the two oldest minor children held by the appellee. Upon the filing of the action the trial court acquired jurisdiction over the appellee by service of process. He was required to bring the children before the court at the time set for hearing. The parties personally appeared before the court and it had jurisdiction to determine the immediate right to the possession of these two children. (See, Price v. Price, 187 Kan. 292, 356 P. 2d 1013.) The application for the writ itself did not open the door for the modification of any prior award of custody on a showing of changed circumstances.
Inferentially the response filed herein admitted the Texas divorce decree which was incorporated in the application for the writ. The question presented is whether the trial court had jurisdiction to go beyond the application for the writ filed herein to determine the matter of custody raised by the appellee in his response to the application for the writ.
Jurisdiction of the subject matter of child custody depends upon whether or not the children in question were in fact domiciled in the state of Kansas at the time of the commencement of the action below. This the appellee concedes. The matter therefore resolves into an inquiry concerning the legal domicile of the children at the time this action was commenced.
In the field of conflict of laws the perplexing problem of the jurisdiction of various Kansas courts to determine child custody matters has been before the court in a number of recent decisions. Domicile of the child was held to be the controlling jurisdictional factor in Leach v. Leach, 184 Kan. 335, 336 P. 2d 425; Hannon v. Hannon, 186 Kan. 231, 350 P. 2d 26; and Niccum v. Lawrence, 186 Kan. 223, 350 P. 2d 133. These cases follow the older case of Kruse v. Kruse, 150 Kan. 946, 96 P. 2d 849, which adopts and quotes 2 Reale, Conflict of Laws, § 144.3, which reads in part:
“Since custody of a child by one parent carries with it domicil and a domestic status, jurisdiction to give the child to one parent or the other depends in principle on the domicil of the child; and a state which is the temporary residence of the child, not the domicil, cannot confer the right to custody. A fortiori a decree for custody rendered in a state where the child is neither resident nor domiciled is void for lack of jurisdiction.
“. . . If after a divorce the party to whom custody was given removes with the child to another state, this would seem to give the second state jurisdiction over the custody, and put an end to the jurisdiction of the first state; for after the divorce each party may change domicil at will, and the child’s domicil changes with that of the parent in whose custody he has been placed. . . (pp. 717, 718.)
The most recent cases in which domicile of the child or children was held to prevail are Robben v. Robben, 188 Kan. 217, 362 P. 2d 29; and Love v. Love, 188 Kan. 185, 360 P. 2d 1061.
Here the mother at the commencement of the action below was domiciled in the state of Washington where she then resided with her husband and the other two minor children not involved in this appeal. At the time the father took the children for the summer custody for the period of sixty days the mother was domiciled in the state of Maryland. The mother was never a resident of Kansas. She came to Kansas for the sole purpose of appearing in court in support of her application for a writ of habeas corpus.
The father in his response to the application for a writ admitted that he did not return the two oldest children to the mother at the end of the sixty-day period authorized by the Texas divorce decree in the summer of 1960. His right to the possession of these children therefore expired, and he was unlawfully and illegally detaining them. When the mother filed her petition she was rightfully entitled to these children under the Texas decree. At that time the childrens domicile was the domicile of the mother. (See, Robben v. Robben, supra; and Niccum v. Lawrence, supra.) Under these circumstances the trial court had no jurisdiction to consider the affirmative relief sought by the father. It should have granted the appellant’s writ upon the force of the Texas decree which disclosed that it had no further jurisdiction to delve into the matter of child custody which the appellee sought to have modified.
The judgment of the lower court is reversed with directions to grant the writ. | [
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The opinion of the court was delivered by
Parker, C. J.:
This was an appeal by J. E. Kirchner, Director of Revenue of the State of Kansas, from an order of the district court of Shawnee County sustaining the motion of the Sprague Oil Service, Inc., to dismiss the Director’s appeal from an order of the Roard of Tax Appeals on grounds the appellant (Director) had no right to take the appeal and the district court was without jurisdiction to hear it. Ry proper order Richard T. Fadely, now Director of Revenue, has been substituted as appellant in this Court.
The salient facts involved are not in dispute and can be briefly stated.
The Sprague Oil Service, Inc., a Kansas corporation, was engaged in the business of transporting petroleum and petroleum products within the State of Kansas until it was dissolved on August 19, 1958. Up to that time its stockholders were Harry A. Sprague, Viola Sprague and Dale M. Sprague, residents of McPherson County. The corporation’s principal place of business, as well as the address of its resident agent Harry A. Sprague, was McPherson, Kansas. In July and the early part of August, 1958, the corporation sold all of its rolling stock, transmitting to its stockholders all proceeds from the sale thereof, and dissolved on the date first above indicated.
Thereafter the stockholders filed individual federal and state income tax returns for 1958, reporting the gain realized upon dissolution of the corporation, but the corporation itself did not report the gain from such sale on either of its federal or state income tax returns for that year. Subsequently, and on a date not disclosed by the record, the Income Tax Division of the State of Kansas, conceding that the gain was properly excludable for federal income tax purposes under section 337 of the Internal Revenue Code of 1954, but contending Kansas did not have a section of law similar to section 337 of the Federal Code, made an assessment against the corporation for such gain for state income tax in the amount of $4,979 including interest. Following this action the corporation appealed to die Director who approved the Division’s action and assessed Kansas income tax against the corporation for the year 1958 in the amount above indicated.
Thereupon the corporation perfected an appeal from the order of the Director to the Hoard of Tax Appeals where, after a full and complete hearing, by order dated October 14, 1959, and by an amended order dated May 4, 1960, that body found that the Director had erroneously assessed Kansas income tax against the corporation for the year 1958 and ordered that the assessment made by the Director against the corporation should be and therefore was abated.
Later, specifying that he was taking action under the authority of G. S. 1959 Supp., 74-2426, the Director filed a notice of appeal in the district court of Shawnee County stating that he was appealing from the order of the Hoard of Tax Appeals in the matter involving the corporation and asking that the district court review such order, set it aside, and direct judgment in his favor against the corporation sustaining the assessment he had made against it for its 1958 income tax. The corporation then filed a motion to dismiss the Directors appeal on grounds heretofore noted in the first paragraph of this opinion. When that motion was sustained the Director perfected the instant appeal wherein, stating it presents a matter of first impression, the Director as appellant and the corporation as appellee concede the sole question determined by the court below, and here involved, is whether the provisions of G. S. 1959 Supp., 74-2426 give the Director of Revenue the right to appeal to the district court from a final order of the Board of Tax Appeals.
The district court’s decision on the question now before us, on which it based its order and judgment sustaining the motion to dismiss and dismissing the appeal there filed by the Director, is reflected in a well-written memorandum opinion which sets forth at length the decisive facts, outlines the issue, and states the considerations for its order and judgment in such manner and form that the opinion might well be incorporated in and made a part of the opinion of an appellate court. We have heretofore set forth the facts and outlined the controlling issue, hence further reference to those matters would result in repetition. However, for the reasons indicated, and others to be presently disclosed, we are disposed to quote that portion of the district court’s memorandum opinion setting forth the considerations on which it based its decision. It reads:
“1. The duty to administer and enforce the Kansas income tax law is an administrative duty and not a judicial one. Crawford Manufacturing Co. v. State Comm. of Revenue and Taxation, 180 Kan. 352, [362], 304 P. 2d 504; Montgomery Ward & Co. v. State Tax Comm., 151 Kan. 159, [172], 98 P. 2d 143; [Union Pac. Rld. Co. v. State Tax Comm., 145 Kan. 715, 726, 68 P. 2d 1]. Neither the taxing officials nor the taxing boards of this state are judicial functionaries, so the provisions of the civil code for taking appeals to the District Court from inferior judicial tribunals do not apply, and while tire Kansas theory for the administration of justice favors the right of appeal, such appeals must relate to matters which judicial tribunals are equipped to determine. In re Chicago, R. I. & P. Rly. Co., 140 Kan. 465 at Page 470, 37 P. 2d 7. The rule is well settled that in the absence of statutory provisions therefor, District Courts are without jurisdiction to entertain appeals from non-judicial acts from administrative officials or boards [City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 360 P. 2d 29.]. A right of appeal is neither a vested nor a constitutional right. It is purely statutory. Murrow v. Powell, 167 Kan. 283, 205 P. 2d 1193; Anderson v. Hedges, 160 Kan. 665, Syl. 2, 165 P. 2d 425. Thus it is clear that there is no appeal from taxing agencies in the absence of statute, and the right of appeal is limited to the statute providing for such appeals. In order for an appellant to maintain his right to appeal he must bring himself clearly within some statute which provides for such an appeal.
“2. The particular statute upon which the appellant Director bases his purported right to appeal in the instant case is G. S. 1959 Supplement, 74-2426. This statute was enacted as Section 12 in Chapter 429 of the Laws of 1957. In interpreting and construing this statute, the Court has considered it necessary and proper to consider certain other sections of the same chapter in order to shed light upon the provisions of 74-2426. In construing the rights of the Director to appeal in this case the following sections of Chapter 429 of the Laws of 1957 should properly be considered:
“Section 5 (74-2437) provides in substance that the Board of Tax Appeals shall have the power and duty to approve or disapprove rules and regulations promulgated by the Director of Revenue and to hear appeals from the Director of Revenue on rulings and interpretations by said Director.
“Section 11 (74-2438). This section provides that an appeal may be taken to tlie Board from any finding, ruling, order, decision or other final action of the Director of Revenue by any person aggrieved thereby. There is further provision for notice and other procedural matters.
“Section 12 ( 74-2426). This section provides in substance, as far as is pertinent in this case, that after the final order by the Board of Tax Appeals, it shall mail a copy of its order by registered or certified mail to the ‘person, firm, corporation, or association who was a party to such appeal.’ It should be noted that there is no provision requiring mailing a copy of the final order to the Director of Revenue.
“Proceeding further, Section 12 provides that within thirty days after the mailing of the final order of the Board any party to such appeal may appeal to the District Court of the proper county. The question presented in this case is whether or not the Director falls into the category of ‘any party to such appeal.’
“Section 12 further provides that appeals from orders made under any excise tax act shall be to the District Court of the county in which the party appealing resides, or has its principal place of business, or, if a non-resident of the State of Kansas, to the District Court of the county in which he maintains his principal place of business within the state, or if he has no place of business within the state, then to the District Court of Shawnee County.
“Section 12 further provides that at the time of filing the appeal, the party appealing under any excise tax act shall give a bond for costs in the sum of $25, and in the event the appeal is from an order determining the amount of tax assessable and the tax has not been paid, an additional bond in an amount equal to twice the amount of the tax assessed. It should be noted that if the Director has the right to appeal as contended by the appellant in this case, there is no provision which relieves him of the obligation to furnish a bond for costs under this section. In the present case it appears that no bond for costs was ever provided by the Director.
“Section 12 further provides that upon filing of the notice of appeal the Director shall be deemed to be a party to such an appeal. The Clerk of the District Court is then required to docket the cause as a civil action and issue summons and cause the same to be served upon the Director in accordance with the manner now provided by law in civil cases. It is important to note that it is not until the notice of appeal has been filed in the District Court that the Director is deemed a party to the appeal. There is no provision for service of summons upon the taxpayer in the event the Director takes an appeal. This would indicate that only the taxpayer has the right to appeal. Otherwise, there would be a provision for the service of summons upon the taxpayer in the event the Director took an appeal.
“Proceeding further under Section 12, there is a specific provision that appeals may be taken from the District Court to the Supreme Court by the party appealing or by the Director as in civil cases, except that the Director shall not be required to give bond on appeal. It appears to this Court that the language here clearly indicates that the Director is distinct from the party appealing in the District Court since the language is that appeals may be taken to the Supreme Court by the party appealing or by the Director. Also the fact that the Director by express language is not required to give bond on appeal to the Supreme Court clearly indicates that it was not contemplated that the Director should appeal in the first instance from the order of the Board of Tax Appeals to the District Court, since no similar provision was made exempting the Director from furnishing bond on appeal from the Board of Tax Appeals to the District Court.
“Finally, it should be noted under Section 12 that The final decision made in such appeal shall be entered as a judgment as in other civil cases against the party appealing or against the Director, as the case may be.’ In view of this language, which is in the alternative, it is clear that the Director is not die same as the party appealing.
“Section 17 (74-2427) provides that upon the request of the attorney for the Director of Revenue the county attorney for any county wherein the appeal is pending under this act shall appear and defend or assist in defending against such appeals on behalf of the State of Kansas and shall be entitled to no additional compensation for such service. It should be noted here that the language of the statute requires the county attorney to appear and defend or assist in defending against such appeals. If the Director of Revenue had the right to appeal, it would seem just as important to have the county attorney appear and prosecute or assist in prosecuting appeals as defending against them. Such language would negative the right of the Director initially to appeal from the orders of the Board of Tax Appeals to the District Court.
“3. The attention of counsel is directed to G. S. 1949, 41-323, which statute involves the right to appeal to the District Court from decisions of the Alcoholic Beverage Control Board of Review refusing, suspending, revoking or granting retail liquor licenses. Under this statute the State Director of Alcoholic Beverage Control is specifically by express language given the authority to appeal from the Board of Review to the District Court of the county in which the premises licensed or sought to be licensed are located. The fact that the Director of Alcoholic Beverage Control is specifically given that authority under 41-323 lends authority to the proposition that the Director of Revenue does not have the right to appeal from orders of the Board of Tax Appeals since he was not specifically given such right of appeal under 74-2426.
“4. In his memorandum letter to the Court the Director of Revenue admits ‘that there was no such appeal prior to July 1, 1957, when the Director of Revenue was under the direct supervision of the old State Commission of Revenue and Taxation.’ In this regard, the Court thinks it important to note that under G. S. 1959 Supplement, 74-2437, the Board of Tax Appeals is specifically given die power and duty to approve or disapprove rules and regulations promulgated by the Director of Revenue. It is thus clear that insofar as the power to make rules or regulations is concerned, the actions of the Director are subject to the approval or disapproval of the Board as a higher administrative agency. The question presented in the instant case, as shown by the notice of appeal, involves in substance the interpretation of 94-2-71 of the income tax regulations of the State of Kansas. It does not even seem logical to this Court to contend that tire Director is subject to the power of the Board of Tax Appeals in the approval or disapproval of rules and regulations, but that in the area of interpretation of such rules and regulations the Director is not bound by the decisions of the Board of Tax Appeals. Obviously the Board of Tax Appeals under its broad power and duty to approve or disapprove rules and regulations promulgated by the Director of Revenue is the highest administrative agency in the administration of the Kansas income tax act. The Director, being a subordinate agency, should not have the right to appeal from the orders of his superior authority in the absence of a clear statute granting such right of appeal. Such a right of appeal is not only not granted in the instant case under the section cited above, but from the language used it is clear that the legislature did not intend that the Director of Revenue should have the right to appeal initially from the orders of the Board of Tax Appeals, but should only have the right to appeal to the Supreme Court in the event of an adverse ruling in the District Court.
“. . . It is therefore the order of this Court that the motion of the appellee Sprague Oil Service, Inc., for an order dismissing the purported appeal filed herein by J. E. Kirchner, Director of Revenue of the State of Kansas, be sustained.”
After a careful and extended analysis of the reasons given by the district court in the heretofore quoted portion of its memorandum opinion for its decision we are convinced that such opinion (1) cites the law applicable to a decision of the question raised by appellee’s motion to dismiss the appeal in district court; (2) assigns sound and controlling reasons for its order and judgment dismissing the appeal; and (3) effectively answers the questions raised, and arguments advanced with respect thereto, by the appellant in support of his position the provisions of G. S. 1959 Supp., 74-2426 give the Director of Revenue the right to appeal to the district court from the involved order of the Board of Tax Appeals.
In view of the conclusions just announced we know of no good reason why our reports should be burdened with extended dis cussion and consideration of contentions which have already been correctly disposed of in the foregoing portion of the heretofore quoted comprehensive written opinion. Therefore we approve such portion of the opinion and, based on what is there stated and held, conclude the district court’s action in dismissing the Director’s attempted appeal, on the grounds set forth in the motion asking for that relief, was proper and must be upheld.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
The controlling question in this case concerns the right of an employer’s insurance carrier to intervene and actively participate in the trial of a common-law action for negligence brought by an injured workman within one year from the date of his injuries.
On July 29, 1959, plaintiff workman, Fred Gorrell, an employee of one Barnes, was engaged in painting an apartment house. During the course of his work he came in contact with an uninsulated service wire of the defendant, Kansas Power and Light Company. He fell from his ladder and sustained severe permanent injuries. He filed a claim under the workmen’s compensation act and received from his employer’s insurance carrier the sum of $22,500 in full settlement of his compensation rights.
On February 8, 1960, he (hereafter referred to as plaintiff), pursuant to the provisions of G. S. 1949, 44-504, as amended, filed a common-law action against the Kansas Power and Light Company (hereafter referred to as defendant) charging negligence. Recovery was sought in the amount of $333,750. Defendant filed an answer denying negligence on its part and alleging contributory negligence.
Prior to the tidal the Pennsylvania Threshermen and Farmers Mutual Casualty Insurance Company, the insurance carrier of plaintiffs employer, filed a petition and motion for leave to intervene in the cause so as to assert its lien to the extent of compensation it had paid to plaintiff. While conceding the right of the insurance carrier under the provisions of the applicable statute, G. S. 1959 Supp. 44-504, to intervene to protect its subrogation rights in the event of recovery by plaintiff by judgment, settlement, or otherwise, both plaintiff and defendant objected to participation by the insurance carrier in the trial. In fact, plaintiff moved that counsel for the insurance carrier “be excluded from the area of the courtroom where counsel sit and also that they be excluded from any participation in this trial” — his theory being that the jury might get the impression it was just a lawsuit by the insurance carrier to recover back $22,500, and that the jury would therefore deny recovery because it did not want the “insurance company to get back any money.” Although defendant’s objections were not as strenuous as those of plaintiff, it nevertheless objected to active participation by the insurance carrier.
After considerable argument on the matter the objections were overruled and the court held that the insurance carrier be permitted to participate in the trial.
In view of the court’s ruling it was then stipulated by counsel for plaintiff and the insurance carrier that the latter’s subrogation interest was the sum of $22,500, and that in the event plaintiff recovered in the action the insurance carrier would be entitled to “the first $22,500.”
In his opening statement to the jury counsel for the insurance carrier stated, among other things:
“Our case rides on Mr. Gorrell’s case. In other words, we are in the same boat he is. The only thing is, we have got the first seat in the boat because the first money that is rendered in judgment goes back to us. Consequently, the evidence is that if Mr. Gorrell recovers the amount that Mr. Martin asked for, then the first $22,500.00 comes back to us and you will be so instructed.”
Among other things, the jury was instructed that the insurance carrier had paid to plaintiff the sum of $22,500 under the compensation act, and that in the event the verdict was for plaintiff the insurance carrier would receive the first $22,500 of such recovery, or any part thereof.
The jury found that although defendant was negligent in not taping the exposed joints of its wires, plaintiff also was guilty of negligence which contributed to his injury — and denied recovery.
Plaintiff has appealed from the order overruling his motion for a new trial.
Although several specifications of error are urged, the controlling question in this case concerns the right of the insurance carrier to participate in the trial.
The applicable statute, G. S. 1959 Supp. 44-504, provides that when the injury for which compensation is payable was caused under circumstances creating a legal liability against some person other than the employer to pay damages, the injured workman shall have the right to take compensation under the act and pursue his remedy by proper action in a court of competent jurisdiction against such third party, and that in the event of recovery from such third party by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by him to date of such recovery and shall have a lien therefor against such recovery, and the employer may intervene in any action to protect and enforce such lien. The statute further provides that the action, if brought by the injured workman, must be instituted within one year from the date of the injury, and if prosecuted by dependents or personal representatives of a deceased workman must be instituted within eighteen months from the date of such injury. It further provides that failure on the part of the injured workman or the dependents or personal representatives of a deceased workman to bring such action within the time above specified shall operate as an assignment to the employer of any cause of action in tort which the workman or the dependents or personal representatives of a deceased workman may have against any other party for such injury or.death, and that such employer may enforce the same in his own name or in the name of the workman, dependents or personal representatives for their benefit, as their interest may appear, by proper action in any court of competent jurisdiction.
Notwithstanding the fact our decisions disclose no case in which the precise question has arisen, under facts identical to those here presented, the general principle involved has been decided many times. Davison v. Eby Construction Co., 169 Kan. 256, 218 P. 2d 219; Barker v. Zeckser, 179 Kan. 596, 296 P. 2d 1085, and Walta v. Bayer Construction Co., 185 Kan. 408, 345 P. 2d 631, were actions by an injured workman against an alleged negligent third party. In each of those cases the action was filed by the workman within one year from the date of the injury. The respective defendants set up in their answers as a defense that the plaintiff workman had received compensation under the workmen’s compensation act. It was held that such allegations constituted no defense and were properly stricken. In the Davison case it was held:
“A workman under the compensation act, who during his employment sustained accidental injury alleged to have been caused by the negligence of a party other than his employer may recover compensation from his employer and bring a common-law action against the other party .for his injuries. In such action the employer or his insurance carrier is not a proper party, and the compensation proceeding has no place in the pleadings or evidence in a common-law action." (syl. 2.) (Our emphasis.)
As suggested and urged by defendant, it is quite true that in those cases the compensation feature was sought to be injected by the alleged negligent third parties, but nevertheless we believe the principle there involved and decided is applicable to the facts before us. This action was commenced within one year from the date of the injury. It was plaintiff’s lawsuit, and under the statute, above, he was authorized to bring it. Under the provisions of the statute it is only when he fails to bring it within the time provided that his employer — or the employer’s insurance carrier (see Turner v. Benton, 183 Kan. 97, 100, 325 P. 2d 349) — may bring the action. We believe that portion of the statute providing that the employer shall be subrogated to the extent of the compensation and medical aid provided by him to the date of recovery, and that he shall have a lien therefor against such recovery and may intervene in the action to protect and enforce such lien, means that the employer or the insurance carrier is given the right to file with the court a notice of its lien so as to protect its subrogation rights in the event of recovery by judgment, settlement, or otherwise, but that it does not mean that the employer or insurance carrier may actively participate in the injured workman’s action.
Notwithstanding the fact that it was to the insurance carrier’s interest that a large verdict — at least to the extent of $22,500 — be recovered, and thus the “interests” of plaintiff and the insurance carrier may be deemed to have been the “same,” we believe that it was error for the court to permit the insurance carrier actively to participate in the trial. As previously stated, this was plaintiff’s lawsuit and the insurance coverage under the compensation act had no place in the pleadings or the evidence. Some question is raised by defendant as to plaintiff’s “acquiescence,” his failure to object to examination and cross-examination of witnesses by counsel for the insurance carrier, and to instructions — all of which, it is contended, amounted to “invited error.” Under the facts, however, and in view of the court’s ruling in the matter, such contention cannot be sustained.
Several other matters are argued, but in view of our conclusion require no discussion. The extent of our holding is that the insurance carrier was erroneously permitted to actively participate in the trial of this action, and for that reason the judgment is reversed with directions to grant a new trial. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action against an insurance company on a Storekeepers Burglary and Robbery Policy for loss of money by safe burglary. The question presented on appeal is whether the loss is covered by the provisions of the policy.
The facts have been stipulated and are not in controversy. The plaintiff, Forrest D. Ferguson (appellee), was insured under a “Storekeepers Burglary and Robbery Policy” issued by the Phoenix Assurance Company of New York (defendant-appellant). He operated the Rexall drug store in Council Grove, Kansas. During the night of March 8, 1960, the insured’s place of business was broken into by forcing the front door open, as evidenced by tool marks. As a result of the burglary there was actual damage to the premises in the amount of $70; narcotics were taken from a storage drawer from within the premises of the value of $32.59; and money was taken from within the safe in the sum of $433.76.
Refore the case was tried the insurance company confessed judgment in the amount of $152.59.' This comprised the $70, the $32.59, and $50 for the loss of money from within the safe. The only amount in dispute is the remaining $383.76 taken from the safe.
The safe used in the drug store herein had two doors, the outer one was locked by means of a combination lock and the inner one by means of a key. Both doors to the safe were locked. In gaining access to the safe the outer 'door was opened by manipulating the combination thereof, and the inner door was opened by punching out the lock. There were no visible marks upon the exterior of the outer door of the safe to show the use of force or violence in gaining access through this door, but the inner door did disclose marks of force and violence upon its exterior, evidencing the use of tools in gaining access.
The policy of insurance entitled “Storekeepers Burglary and Robbery Policy” limited liability to $1,000 under each of the seven “insuring agreements.” Among them is the following:
“IV. Burglary; Safe Burglary
“To pay for loss by safe burglary of money, securities and merchandise within the premises and for loss, not exceeding $50, by burglary of money and securities within the premises.”
The policy in chronological sequence then listed the “exclusions.” The only one having any bearing upon this case reads:
“This policy does not apply:
“(a) to loss due to any fraudulent, dishonest or criminal act by any insured, a partner therein, or an officer, employee, director, trustee or authorized representative thereof, [while working or otherwise and] whether acting alone or in collusion with others; provided, this exclusion does not apply to [kidnapping,] safe burglary or robbery or attempt thereat by other than an insured or a partner therein;”
This exclusion was amended by an attached rider to include the words set forth in the brackets.
The policy then set forth the “conditions” among which was: “1. Definitions . . . (j) Safe Burglary.” The definition of the term “Safe Burglary,” however, was amended by a rider attached to the policy. The amended definition, which is substantially identical to the original, reads: <
“ ‘Safe Burglary’ means (1) the felonious abstraction of insured property from within a vault or safe, the door of which is equipped with a combination lock, located within the premises by a person making felonious entry into such vault or such safe and any vault containing the safe, when all doors thereof are duly closed and locked by all combination locks thereon, provided such entry shall be made by actual force and violence, of which force and violence there are visible marks made by tools, explosives, electricity-or chemicals upon the exterior of (a) all of said doors of such vault or such safe and any vault containing the safe, if entry is made through such doors, or (b) the top, bottom or walls of such vault or such safe and any vault containing the safe through which entry is made, if not made through such doors, or (2) the felonious abstraction of such safe from within the premises.” (Emphasis added.)
The trial court said there was no question but that a burglary occurred, the money was taken, and the insurance was carried for that particular purpose. It held the provision relied upon by the insurer was “an escape clause” and allowed full recovery under the policy for the money taken from the safe. Judgment was entered for $536.35, as requested in the petition, plus $300 for attorney fees to be assessed as costs against the insurance company. (G. S. 1959 Supp., 40-256.)
Appeal has been duly perfected by the insurance company presenting as the only dispute the construction of the insurance policy in question as it relates to safe burglary.
A study of the policy discloses that if the appellee is entitled to recover the loss must fall within provision No. IV of the “insuring AGREEMENTS.”
The appellant in its answer and at the pretrial of the case denied any liability under the policy for the money taken from the safe. However, just prior to trial the appellant amended its answer and confessed judgment for a sum which included $50 under the second provision of Insuring Agreement No. IV — payment for money taken by burglary within the premises. This, the appellant contends, is the only ambiguous provision in the policy, and the question has been resolved in favor of the insured by the company prior to trial.
The appellant contends the definition of safe burglary in the policy is clear and unambiguous. It says, since entry was made to the safe in question through the doors thereof, and there were no visible marks of force and violence made by tools, explosives, electricity or chemicals upon the exterior of the outer door through which entry was made, the loss was not insured under the plain meaning of the policy.
The appellant argues if the appellee is demanding payment for a loss that was clearly excluded in the contract, then appellee is requesting coverage for which no consideration or premium was paid.
The appellee contends the appellant’s interpretation of safe burglary within the terms of the policy is not applicable and is illogical and contrary to the public policy of this state. It is argued the appellee is entitled to recover for the loss as a result of the burglary of his safe, when the facts are that the inner door of the safe was locked by a key and the safe entered by force and violence of which there were visible marks on the exterior of such inner door.
The appellee argues if the insurance company did not intend to pay for loss of money by safe burglary under the facts in this case, it should have had another item under its “Exclusions,” stating in substance “that the company will not pay for any loss if a combination to a safe has been worked by manipulation.” (See the policy provisions in Prothro v. Com. Cas. Ins. Co., [1942], 200 S. C. 432, 21 S. E. 2d 1; and Assurance Corp. v. Heller, [1953], 127 Colo. 64, 253 P. 2d 966.)
It is a generally accepted rule that insurance policies are to be construed in favor of the insured and against the company. This rule, however, is to be invoked only where there exists rational grounds for construction of the policy. That is, the contract must contain provisions or language of doubtful, ambiguous or conflicting meaning, as gathered from a natural interpretation of its language. (Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P. 2d 310; Sebal v. Columbian Nat. Life Ins. Co., 144 Kan. 266, 58 P. 2d 1108; and Koehn v. Central National Ins. Co., 187 Kan. 192, 354 P. 2d 352.) If the language when given its everyday commonly accepted meaning is clear and specific in presenting the subject matter at hand, the objective to be accomplished, the burdens assumed, and the benefits to be enjoyed or received, then the terms of the policy cannot be said to be doubtful of meaning or conflicting in terms. Under these circumstances, courts are not at liberty to indulge in a construction that would give an unnatural meaning to the language in order to accomplish results that could not be shown to have been in the minds of the parties. (Knouse v. Equitable Life Ins. Co., supra; Koehn v. Central National Ins. Co., supra; and authorities accumulated in these cases.)
Where an insurance contract is not ambiguous, the court may not make another contract for the parties. Its function is to enforce the contract as made. (Watkins v. Metropolitan Life Ins. Co., 156 Kan. 27, 131 P. 2d 722; and Movitz v. New York Life Ins. Co., 156 Kan. 285, 133 P. 2d 89.)
We have been cited to no Kansas cases, nor has our research disclosed any, on conditions placed in a burglary or safe burglary policy of insurance, similar to those in the instant case. It must be conceded, as the appellant contends, that restrictions have been recognized in a robbery policy. In Security State Bank v. Royal Indemnity Co., 127 Kan. 230, 273 Pac. 430, the policy of insurance required the insured to provide a guard for each custodian while conveying insured property outside the premises as a precaution to prevent loss. The insured failed to send a guard with a messenger who was robbed, and sought to recover. The court said:
“. . . We are of the opinion that the failure of the plaintiff to comply with the provision of the policy with respect to sending a guard with the messenger increased the risk of loss by robbery and may reasonably be said to have constituted a direct cause of the loss in question. . . .” (p. 231.)
This condition in the policy was recognized by the court as substantive and required fulfillment before liability attached.
It is not uncommon for insurance companies to include in theft or burglary insurance policies provisions restricting their liability to cases where the insured produces some form of specified evidence that the loss was due to theft or burglary. The reason for such restrictions, quite obviously, is to protect the companies from what are commonly known as “inside jobs,” and from frauds that would inevitably result, but for such protection. (United Sponging Co. v. Preferred Acc. Ins. Co. [1916], 161 N. Y. S. 309, 97 Misc. 396, aff’d, 179 App. Div. 884, 165 N. Y. S. 1116.)
Provisions of this type are the subject of an extended annotation in 169 A. L. R. 224, where numerous cases are accumulated and discussed. Generally speaking, it is said, there are three different kinds of clauses by which insurance companies attempt to achieve this result: (1) A provision to the effect that the evidence produced by the insured must be “direct,” “affirmative,” or “conclusive;” (2) a stipulation that the mere disappearance of the insured article shall not be deemed evidence of burglary or theft; and (3) a provision specifying that there be “visible marks” or “visible evidence” of the use of force or violence.
These clauses are inserted in the policies for the protection of the insurance company and they clearly favor the insurer over the insured.
The clause with which the court is concerned in the instant case specifies that there be “visible marks” upon the exterior of all doors of a safe, if entry is made through such doors.
The first question to be determined is whether this clause is designed to set forth a rule of evidence, or whether it is designed to set forth a rule of substantive law — a condition precedent limiting the liability of the insurance company.
It cannot be said the language used to define “safe burglary,” as heretofore quoted, is ambiguous. To answer the foregoing ques tion we must interpret this provision by making a careful study of the language used and the comparative position of this language in the policy itself.
It is to be noted the indemnifying provision, “Insuring Agreement No. IV.,” imposes no restriction or limitation. By this provision the company, under a policy entitled “Storekeepers Burglary and Robbery Policy,” agrees “To pay for loss by safe burglary of money, securities and merchandise within the premises.” Furthermore, no limitation or restriction is to be found among the “exclusions,” except the loss occasioned by “inside jobs” — safe burglary committed by the insured or a partner. Thereafter, as a condition in the policy, safe burglary is defined as the felonious abstraction of insured property from within a safe located within the insured premises by a person making felonious entry into such safe by actual force and violence. It requires that the door of such safe be equipped with a combination lock and that all doors thereof be duly closed and locked by all combination locks thereon.
There is no provision in the policy that force and violence are necessary to gain entry through each of the doors to the safe. The crucial clause here under consideration reads: “of which force and violence there are visible marks made by tools, explosives, electricity or chemicals upon the exterior of (a) all of said doors.” The term “force and violence” used in this clause refers to the “actual force and violence” used in “making felonious entry into” the safe. The recital that there be visible marks upon the exterior of all of the doors to the safe has reference only to evidence of the force and violence used in making the felonious entry into the safe. In other words, the substantive condition of the proviso is that entry into the safe be made by actual force and violence. The further condition that there be visible marks upon the exterior of all doors to the safe, if entry is made through such doors, is merely evidentiary to show an entry into the safe by actual force and violence.
The appellant relies upon Assurance Corp. v. Heller, supra, which it describes as being on all fours with the case at bar. The Colorado Supreme Court held where the provisions of a policy are couched in plain and unambiguous language and do not contravene some principle of public policy, the court has no right to relieve one of the parties to the contract from its disadvantageous terms by a forced construction or interpretation of its provisions. There the facts as to the safe burglarly were identical to the facts in the case at bar, but several distinctions must be noted regarding the policy of insurance. The indemnifying provision itself set forth:
“ ‘Coverage I — Safe Burglary
“ T. For all loss by burglary of money, securities and merchandise from within that part of any safe or vault, to which the insurance hereunder applies, by any person or persons making felonious entry into the insured part of such safe or vault by actual force and violence (of which force and violence there shall be visible marks made by tools, explosives, electricity, gas or chemicals, upon the exterior of (a) all of the doors of the safe or vault if entry is made through such doors, or (h) the top, bottom or walls of the safe or vault, through which entry is made if not made through such doors) while all the doors of such safe or vault are duly closed and locked by combination or time lock and while such safe or vault is located in the premises, or elsewhere after removal therefrom by burglars.’” (pp. 66, 67.)
Special conditions applicable to “Coverage I” were the following:
“ TO. Entry into Vault, Safe or Chest. The Company shall not be liable if the insurance is limited to a chest inside a safe or a safe inside a vault unless both the chest and the safe or the safe and the vault, as the case may be, shall have been entered in the manner specified under Coverage I.
“ ‘11. Exclusions. The Company shall not be liable for loss or damage (1) effected by opening the door of any vault, safe or chest by the use of a key or by the manipulation of any lock; . . .’” (p. 67.)
In the opinion the court said the paragraph in Coverage I was “plain and unambiguous; couched in ordinary terms — such that a reasonably intelligent person could readily understand the same. Under these circumstances, the exclusion clause, supra, must be given the meaning which a person of ordinary intelligence would attach to it.” (p. 67.) (Emphasis added.)
The Colorado court noted that counsel had not called to its attention any decision wherein the policy contained the exact Insuring Agreement or special conditions couched in the exact language contained in the policy there under consideration, nor had the court found any such decision.
Similarly in Prothro v. Com. Cos. Ins. Co., supra, the indemnifying provision in a policy of burglary insurance had language substantially identical to that in the definition of “safe burglary” herein, but there was an exclusion that the company “‘shall not be liable for loss or damage . . . (6) effected by opening the door of any vault, safe or chest by use of a key or by the manipulation of any lock.’ ” (p. 434.)
The issue in the case concerned the use of force and violence on the outside door of the safe, which was equipped with a combina tion lock. There were signs of physical force and violence upon the exterior of the outer door. Evidence was presented that the entry through this outer door was not made by force and violence. The case turned upon an instruction to the jury which was affirmed on appeal, holding there was “no provision in the policy that the entry shall be made exclusively by force and violence.” (p. 436.) In the opinion the court said:
“The policy properly interpreted must be held to mean that if actual force and violence is used in connection with the opening of a safe, then even though the safe was not opened by such actual force and violence alone, the policy provision applies, provided the actual force and violence were contributing factors to the opening of the safe, and without which the safe could not have been opened.” (p. 436.)
In Paramount Publix Cor. v. Travelers Ind. Co., [1934], 49 Ga. App. 1, 173 S. E. 873, the indemnifying provision in a policy of burglary insurance had language substantially identical to that in the definition of “safe burglary” herein, but the report does not mention an exclusion. There a safe with two doors, as here, was burglarized. The lock on the inner door was battered off and there were marks indicating that the lock on the inner door had been forcibly hammered and battered to effect an entry into the safe where the money was. The burglars sawed the hinges on the outer door of the safe in two, and there were scratches and forcible marks on the outer door where the hinges had been sawed and cut for the purpose of entering the safe. The sawing of the hinges on the outer door of the safe was not of itself sufficient to effect an entry into the safe, in that the outer door contained certain bolts extending on both sides of the door into the safe which would have prevented the opening of the door of the safe, even though the hinges were sawed off, unless the combination of the safe was worked.
An instruction by the trial court virtually directed a verdict for the defendant, compelling the jury to find for the insurance company if entry into the safe could not have been made but for the working of the combination to the safe, notwithstanding the use of force and violence. This instruction was held erroneous. In commenting the court said such a strained construction of the policy would tend to practically defeat the object of the insurance and would make such a policy of burglary insurance almost useless.
Two other cases in which action was brought against an insurer on a policy of burglary insurance having a provision substantially identical to the definition of “safe burglary” herein are Inglis et ux v. Gen. Casualty Co. [1957], 211 Or. 116, 316 P. 2d 546; and Old Colony Ins. Co. v. Moskios [1956], 209 Md. 162, 120 A. 2d 678. In each of these cases the language in question was set forth as a part of the insuring or indemnifying clause.
In the Inglis case there was no question but that the safe was opened and money stolen, but the only evidence offered was that there were scratches upon the outer surface of the door of the safe when the safe was found open. There was no evidence that these scratches contributed in any manner to the opening of the safe, but quite to the contrary. The report gives no indication that the safe had an inner door. It was held the evidence did not bring the burglarization of the safe within the insuring terms of the policy so as to create liability according to its terms. The court said this is not a policy which insured against mysterious disappearances, nor does it cover manual operation of the safe’s combination in the absence of visible evidence of the use of force thereon. It further said the insuring clause of the contract required entry into the safe by force and violence, and “as a result of the force and violence there is visible evidence, upon the exterior doors or outer walls of the safe, of that force and violence which either effected the entry or contributed to effecting the entry.” (pp. 118,119.) (Emphasis added.)
In the Moskios case the issue also concerned the use of force and violence. The jury was instructed they must find that some mark of violence was “ deft on the outside door of the safe not the inside door, but the outside door on which the combination operated.’” (p. 165.) No objection was made to this part of the charge, nor was it contended that the force used on the inside door alone was sufficient for recovery. This became the law of the case.
The court held the policy did not stipulate that entry to the safe must be effected “solely” or “exclusively” by actual force and violence of which there were visible marks made by tools.
In McCoy Grocery Company v. Travelers Indemnity Company, [1960], 101 Ga. App. 638, 114 S. E. 2d 924, a similar provision in a policy of burglary insurance was the subject of an action. Plaintiff’s evidence indicated there were visible marks of actual force and violence made by tools upon the exterior door to the safe, which the court said “was the only door,, under the evidence, upon which there was a combination lock, as contemplated by the policy.” (p. 639.) This was held to be sufficient evidence to go to the jury on the question of the defendant’s liability for the money allegedly stolen from the safe. The summary opinion does not give much assistance.
All of the foregoing cases are of assistance but have characteristics which distinguish them from the case presently before the court, either upon the facts giving rise to the safe burglary, or upon the specific provisions of the policy of insurance, or upon the issues presented.
The appellee relies upon cases involving burglary or theft policies of insurance containing the “visible marks” requirement in a clause which requires only that the visible marks be “upon” the assured’s safe, or directly upon the “exterior” or the “outside” of the assured’s safe or vault. (Fidelity & Casualty Co. v. Sanders, 32 Ind. App. 448, 70 N. E. 167; Moskovitz v. Travelers Indemnity Co., 144 Minn. 98, 174 N. W. 616; Rosenbach v. Fid. & Cas. Co., 204 Mo. App. 145, 221 S. W. 386; Goldman v. New Jersey Fidelity & Plate Glass Ins. Co., [K. C. C. A.], 183 S. W. 709; Bruner Co. v. Fidelity & Casualty Co., 101 Neb. 825, 166 N. W. 242; Maryland Casualty Co. v. Bank of Murdock, 76 Neb. 314, 107 N. W. 562; Grayson v. Maryland Casualty Co., 100 Neb. 354, 160 N. W. 85; Fidelity & Casualty Co. of New York v. First Bank of Fallis, 42 Okla. 662, 142 Pac. 312; and National Surety Co. v. Chalkey, [Tex. Civ. App.], 260 S. W. 216; see, also, 29A Am. Jur., Insurance, § 1336, p. 452; 45 C. J. S., Insurance, § 886, at p. 956; 169 A. L. R. 244; 54 A. L. R. 470; 44 A. L. R. 473; and 41 A. L. R. 855.) These cases are not particularly helpful in resolving the issue presented by the provision here in question. Many cases of this type say that such provision is not quite clear, or that it is ambiguous, and resolve the doubt in favor of the assured. Others hold to the contrary.
As we interpret the “Storekeepers Burglary and Robbery Policy” of insurance presently before the court, the “visible marks” clause imposes a rule of evidence upon the assured to establish that entry was made into the safe by actual force and violence. Whether such force and violence need be only a contributing factor in making entry into the safe is not a point at issue. On the admitted facts here confronting the court actual force and violence were used in making entry into the appellee’s safe and there were visible marks of such force and violence upon the exterior of the inner door, but there were no marks of force or violence upon the exterior of the outer door which was opened by manipulating the combination.
The question then resolves into whether an insurance company, in order to protect itself from “inside jobs” and frauds, may impose a rule of evidence which is binding upon the assured by a provision in the policy.
It is a well-established rule of insurance contracts that the insurance carrier can and must be able to select the risks it insures. But a provision intended to determine the character of evidence necessary to show liability is another matter. The cases generally hold, if the parties to an insurance contract adopt a provision which contravenes no principle of public policy and contains no element of ambiguity, the courts have no right to relieve one of them from disadvantageous terms, which he has actually made, by a process of interpretation. Upon this principle the insurance carrier has a perfect right, if it sees fit, to require proof even of so-called evidentiary facts as an indispensable basis for recovery. Where the provision is not in contravention of public policy and not ambiguous, the only inquiry can be whether the parties have assented to the incorporation in their agreement of a provision which clearly calls for such evidentiary proof. A leading case on this point is Rosenthal v. American Bonding Co. [1912], 207 N. Y. 162, 100 N. E. 716, 46 L. R. A. (n. s.) 561.
It is no longer subject to question that insurance is vitally affected with the public interest. (Koehn v. Central National Ins. Co., 187 Kan. 192, 354 P. 2d 352.)
In Sowden v. United States Fidelity & Guaranty Co., 122 Kan. 375, 252 Pac. 208, a clause in a policy insuring against loss by theft required that affirmative proof must be made of the larceny to warrant a recovery. It was held this clause did not prevent the establishment of that fact by purely circumstantial evidence. The practical effect of this decision seems to be that the court gave relatively little weight to the added requirement concerning evidence, in order not to exclude recovery on an obviously justifiable claim. (See, Leader Clothing Co. v. Fidelity & Casualty Co. of N. Y. [U. S. C. A., 10th Cir., 1956], 237 F. 2d 7; and Aetna Casualty & Surety Co. v. Reliable Auto Tire Co. [C. C. A., 8th Cir., 1932], 58 F. 2d 100.)
We hold that where a rule of evidence is imposed by a provision in an insurance policy, as here, the assertion of such rule by the insurance carrier, beyond the reasonable requirements necessary to prevent fraudulent claims against it in proof of the substantive conditions imposed by the policy, contravenes the public policy of this state. This becomes apparent when the statement of the rule in the policy itself, or its assertion by the insurance carrier, is designed to prevent recovery on an obviously justifiable claim.
On the facts in this case money was taken from the assured’s safe by an admitted entry into the safe by actual force and violence, which was evidenced by visible marks upon the inner door of the safe. Under these circumstances the assertion by the insurance carrier of the evidentiary requirement, that there be visible marks of force and violence upon the exterior of the outer door, is obviously designed to defeat recovery on a just claim under the policy which insured the felonious abstraction of money from within the safe, by a person making felonious entry into such safe by actual force and violence, where both doors of the safe were duly closed and locked.
Had the insurance carrier desired to exclude loss by safe burglary where the combination of the outer door is worked by manipulation, such provision should have been incorporated under the “exclusions” in the policy. The appellant asserts in its brief that the appellee is demanding payment “for a loss that clearly was excluded in the contract,” (Emphasis added) thus recognizing the need for an exclusion in the policy to support its contention, but without actually having made such exclusion in the policy.
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The opinion of the court was delivered by
Fatzer, J.:
This was an action for the alleged appropriation of the plaintiff’s property by the city of Topeka and the Board of County Commissioners of Shawnee County without compensation or consent, and for damages caused by the continuing use of the plaintiff’s land. The plaintiff’s petition, filed February 16, 1960, alleged that by virtue of such appropriation and continued use, a nuisance was created, and he prayed for damages in the amount of $10,600. The defendants demurred to the petition and the city’s demurrer was overruled, but the Board of County Commissioners’ demurrer was sustained for the reason that the statute of limitations precluded suit against it. At the close of the plaintiff’s case, the city’s demurrer to the evidence was sustained. The plaintiff has appealed from that ruling.
There was evidence that the plaintiff purchased the property on September 10, 1957, and at that time the disputed ditch was on his property. The ditch runs in a northeasterly direction from the southwest corner of the plaintiff’s property. When the plaintiff took possession of the property in September, 1957, he measured the ditch and found it to be three feet from the southeast corner of his concrete block garage.
The plaintiff testified that even before he took possession of the premises he had spoken with the city and the county engineers concerning their use of the property. Inasmuch as the area had been incorporated into the city in January of 1957, the county engineer made no effort to advise the plaintiff, but the plaintiff testified that the city engineer told him something should and would be done in a reasonable length of time. The evidence showed that the ditch in question had been in' existence for many years and that it was natural drainage inasmuch as the surrounding land on all but the east side was higher ground and the ditch sloped to the east.
The plaintiff testified that the flow of water during heavy rains was high and forceful and that debris was left when the water subsided; that since he took possession of the property, the ditch had widened; that he measured the distance from the garage to the bank and found it to be only two feet in February of 1959 whereas it was originally three feet; that his garage foundation was cracking due to erosion; that in April, 1958, he wrote the city commissioner and explained the deteriorating bank and the increasing damage to his garage, commenting also on the fact that the garage was then only two feet from the ditch and was cracking due to loss of footage. He testified to the disturbing and nauseous odors and the discomfort allegedly caused by the deposits left when the flow of water subsided in the ditch, and to the diminution of the value of his property and of the amount of repairs that he had made to enhance its value.
A licensed engineer testified on behalf of the plaintiff that he inspected the premises and, based upon such inspection, he prepared drawings of the area, which were put into evidence. The drawings showed how the paved streets and drainage system were constructed and how they directed the flow of water through the drainage ditch. He testified that the actual drainage area had been reduced as a result of the paving and that, in his opinion, less water flowed through the ditch after the paving than before, but that it flowed with greater force which could increase the erosion and have the effect of washing more materials onto the plaintiff’s property to remain there when the flow of water diminished. He testified the ditch was a natural waterway that had been there for many years.
On March 2, 1959, the plaintiff filed a claim with the city clerk setting out that his property had been taken without compensation; that no improvements had been made to alleviate his damage, and that his property had been diminished in value by the nuisance created.
There was no evidence to establish when any specific injury was done to the plaintiff’s property and he, therefore, predicated his right of recovery upon the theory of continuing nuisance.
It would appear to be the contention of the plaintiff that the district court erroneously construed the nature of the action as being one based on permanent nuisance and the evidence as establishing damages, if any, of a permanent nature.
Had the plaintiff alleged and the evidence shown that a permanent structure was the facility which caused permanent injury, the statute of limitations clearly barred the plaintiff’s right of recovery. (Jeakins v. City of El Dorado, 143 Kan. 206, 53 P. 2d 798; McDaniel v. City of Cherryvale, 91 Kan. 40, 136 Pac. 899.) The paving project was the facility which might give rise to an action inasmuch as the ditch was in existence for many years and was the natural drainage for the entire area long before the street was paved. The paving project in the summer of 1956, the paved streets, and the network for drainage caused the water to ultimately flow into the natural drainage ditch as before, but apparently with more force. The actual drainage area was reduced as a result of the paving, but the velocity with which the water flowed into the ditch increased. However, if, as the plaintiff contends, he based his cause of action and notice of claim upon, and his evidence established, an abatable but continuing nuisance predicated on the city’s failure to abate the condition, his cause of action is repeatedly renewed with each instance of injury. (Henderson v. Talbott, 175 Kan. 615, 266 P. 2d 273; Watkins v. City of El Dorado, 183 Kan. 363, 327 P. 2d 877; Steifer v. City of Kansas City, 175 Kan. 794, 267 P. 2d 474.) But the duty to allege and prove that an injury and damage has accrued, within the meaning of G. S. 1961 Supp., 12-105, is upon the plaintiff.
Nowhere in the petition, notice of claim, or in his evidence did the plaintiff assert or prove that the alleged injury occurred within three months immediately preceding the date the notice of claim was filed on March 2, 1959. (Watkins v. City of El Dorado, supra; Jeakins v. City of El Dorado, supra.) By his own concession, the plaintiff asserts that his most significant evidence is the eroding bank which has resulted in visible damage to his garage. However, in spite of tire plaintiff’s assertion that the garage was damaged in February, 1959, there is clear evidence by his own admission that the garage wall was cracked and the bank diminished a foot as early as April 5,1958, when he wrote the city commission. The plaintiff’s evidence failed to show that any injury occurred within the required time as prescribed by statute.
Assuming, as the plaintiff contends, this is a continuing nuisance which can be abated and which gives rise to repeated causes of action, the question is now moot in view of the evidence. In Adams v. City of Arkansas City, 188 Kan. 391, 362 P. 2d 829, it was said:
“In actions of this nature the appellants are bound by the statutory claim which they are required to file with the city clerk pursuant to 12-105, supra, as a condition precedent to the maintenance of any action against a municipality, and their rights of recovery are based upon such claim. . . .” (l.c. 397.)
Inasmuch as the plaintiff failed to establish any right of recovery, the district court properly sustained the demurrer to the evidence.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Jackson, J.:
This appeal is from a lump sum judgment under G. S. 1949, 44-512a of the workmen’s compensation act.
The only real question in the case involves the matter of whether the appellants, who were respondents in the workmen’s compensation proceeding, made an offer to pay the amount due within the two weeks after notice as provided in section 44-512a.
We note the facts quite briefly. The district court entered its decision affirming the order of the workmen’s compensation commissioner on October 28, 1960, and granting appellee compensation of $7.02 per week for 415 weeks beginning September 17, 1958. The sum of $772.20 was due at the time judgment was rendered. No appeal was taken from that judgment, and demand under section 44-512a was made upon appellants as of November 1, 1960.
On November 14, 1960, appellant insurance carrier mailed a sufficient draft or check to its own attorneys in El Dorado. The evidence shows that the draft had been in the insurance company’s office since November 3,1960. The draft was received in El Dorado on November 15th and was forwarded by the carrier’s counsel to counsel for the claimant in Eureka on November 16th and received by claimant’s counsel November 17, 1960.
Counsel for claimant returned the draft to the insurance carrier upon the sole ground that payment had not been made in proper time under the provisions of section 44-512a.
Appellants argue that the mailing of the draft to their own counsel on November 14th was a sufficient payment. The argument is unmeritorious since the draft was still within the control of appellants. Moreover, the provisions of section 44-512a would indicate that the payment must be in the hands of the claimant or his representative within two weeks after the date of the demand. Attention may be directed to Owen v. Ready Made Buildings, Inc., 180 Kan. 286, 303 P. 2d 168, and Fleming v. National Cash Register Co., 188 Kan. 571, 576, 363 P. 2d 432.
Appellants argue three other questions rather weakly. We shall answer them shortly. First, after appellant’s answer consisting only of a general denial and two specific denials, there was no reason for appellee to file a reply in this action.' The trial court was correct in allowing interest on the lump sum judgment. (Fleming v. National Cash Register Co., supra, p. 577.) And finally, the trial court under the facts in the record was justified in allowing appellee witness fees and mileage when he was subpoenaed as a witness for appellants.
The judgment appealed from is affirmed. | [
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The opinion of the court was delivered by
Price, J.:
Twelve head of cattle were killed when struck by a Santa Fe passenger train. The owners thereof were paid the value of the cattle by their insurance company. The insurance company, under its subrogation rights, later brought suit against the Santa Fe to recover the amount so paid — charging negligence.
A jury found for plaintiff insurance company. Defendant railroad’s post-trial motions were overruled and judgment was entered upon the verdict. The railroad has appealed.
Highly summarized — the facts giving rise to this lawsuit are as follow:
On the evening of January 26, 1958, Bernard P. Martin was hauling a load of seventeen cattle from Emporia to the stockyards at St. Joseph, Missouri. The cattle were owned by his father and brother. At about eight o’clock, while the truck was near the south city limits of Topeka on U. S. Highway 75, one Crosby drove his car in front of the truck in such a manner that Bernard was forced to “swerve” in order to avoid a collision. This caused the cattle to shift, and the trailer overturned off the road permitting them to escape. Topeka police and sheriff’s officers gathered at the scene. It was dark, the weather was cold and the ground covered with snow. Bernard and the officers were able to locate some of the cattle but were unable to round them up and get them back in the truck by reason of the circumstances and the excited condition of the cattle.
Shortly thereafter the yardmaster of the Santa Fe was notified of the fact that some of the cattle were on its main fine tracks and it was suggested that trains moving thereon exercise extreme caution. Accordingly, a “slow order” was put into effect by the Santa Fe. One of its special agents, Joe Brennan, arrived at the scene and was fully aware of the situation with respect to the cattle running loose. The bulk of them had moved east from the highway toward the railroad tracks. Eight head were finally quieted down along 29th Street, west of the tracks, in a sort of fenced-in enclosure, which, however, was not secure in that a small portion of the fence had been knocked down as the result of some previous incident not connected with the matter here involved. In the meantime Bernard’s brother, Paul Martin, had arrived on the scene from Emporia, and both of them were aware of the fact that eight head were in the enclosure above mentioned, and that four head were at another location which was thought to be secure. They returned the short distance to the highway to watch over a steer which had a broken leg so as to keep it off of the traveled portion of the highway. During all of this time police and sheriff’s officers were at the scene lending what assistance they could under the extremely adverse conditions and circumstances. Finally, it appearing that nothing further could be done, they left.
At about 10:30 p. m. the railroad was again advised by the police dispatcher that the cattle were not then on the right-of-way but that they were in the vicinity of it and could return to it, and that the “slow order” should be continued until further notice from police headquarters. The railroad yardmaster replied that such would be done “until he heard from the authorities.” Later that night the twelve head of cattle in question wandered onto the railroad right-of-way and were struck by a passenger train traveling at a speed of approximately sixty miles per hour.- All twelve were killed. The “slow order” had not been lifted or rescinded.
By virtue of its insurance policy covering the Martins plaintiff in surance company paid to them the sum of $4,077.14 for the loss of the twelve head of cattle. Plaintiff thereafter settled its claim against Crosby for the sum of $1,000, reserving its right to proceed against the railroad. Suit was thereafter brought to recover the sum of $3,077.14. The jury returned a general verdict for plaintiff in that amount and made special findings as follow:
“1. Did the owners of the cattle exercise due care for the protection of their cattle after they had been located by the law enforcement officers? Answer: Yes.
“2. Were the owners of the cattle guilty of any negligence which contributed to their having been struck by the train? Answer: No.
“3. If your answer to the foregoing question is in the affirmative, of what did their negligence consist?
“4. Was the defendant railway company guilty of any negligence which caused the cattle to be struck by the train? Answer: Yes.
“5. If your answer to the foregoing question is in the affirmative, of what did its negligence consist? Answer: The railroad company failed to exercise due caution to avoid killing the cattle which they had been advised were in the vicinity and could be on the track.”
In its appeal defendant railroad’s fourteen specifications of error raise numerous questions concerning the right of plaintiff to maintain the action; the sufficiency of the evidence to support the findings and verdict; rulings on evidence; instructions given and refused; the fact of the cattle “running at large” in violation of law; whether at the time and place in question they were “in transit” within the terms of the insurance policy; the alleged lack of evidence as to the value of the cattle to support the amount of the verdict — and many other matters, which, it is alleged, constituted error.
A careful examination of the record, however, convinces us that the contentions present no new questions or points of law in this jurisdiction, and that to undertake to set out and discuss in detail each of the arguments would serve no purpose other than to lengthen this opinion unnecessarily. In fact, we believe that the statements appearing at page 138 in Domann v. Pence, 183 Kan. 135, 325 P. 2d 321, have application to the matters here presented.
The underlying basic question in this case is whether, under the facts and circumstances disclosed, plaintiff insurance company’s insureds were guilty of contributory negligence in their care — or lack of care, as urged by defendant — of the twelve head of cattle in question, and whether under all of the facts and circumstances defendant railroad was guilty of actionable negligence.
At the conclusion of plaintiff’s evidence defendant démurred. In ruling thereon the trial court said:
“The questions concerning negligence that have been raised are for the jury. The demurrer is overruled.”
We agree with that ruling.
The special findings make it very clear the jury was of the opinion that under all of the confronting conditions and circumstances the owners of the cattle were not guilty of any negligence which contributed to the fact of the cattle being struck by defendant’s train, and also make it equally clear the jury was of the opinion that defendant railroad was guilty of actionable negligence in failing to keep in effect the “slow order” until notified otherwise by the authorities.
In connection with the last-mentioned matter we quote portions of the running account of the events of the evening contained in a report made by the dispatcher on duty at the Topeka Police Department:
“Car 40 asked for me to public service the Santa Fe and advise them that the cattle were on the main line of Santa Fe tracks and to have all the trains to slow down. I advised car 40 that the Santa Fe had been contacted at 9:21 p. m.
“At 9:26 p. m. Joe Brennen, special agent for the Santa Fe, called this dispatcher to ascertain where the men were that were rounding up the cattle, that he was going out to the scene. I advised car 40 of this at 9:27 p. m.
“During the time from 9:30 p. m. and 10:15 p. m., the cattle went back and forth between 37th and 29th on the main line of the Santa Fe. At approx. 10:25 p. m. they had quieted down and were near 29th and Kansas. I public serviced the Santa Fe and advised the yardmaster of this. Also that the cattle were still near the tracks and could go back up on the main line at any time and suggested that they slow the trains down till further notice. He advised that he would do so.”
The findings of the jury are well within and are supported by the evidence.
In conclusion we wish to state that none of defendant’s contentions has been overlooked or ignored. Each has been given careful consideration, but all are found to be without substantial merit. The law does not guarantee to every litigant a “perfect” trial. (State v. Severns, 184 Kan. 213, 222, 336 P. 2d 447.) It does, however, guarantee to him a fair trial — and there is nothing in the record to indicate that such was not had in this case. In Cook v. Railway and Bridge Co., 101 Kan. 103, 165 Pac. 803, it was said:
. . It is not enough to disturb a judgment that some error or impropriety transpires in a trial. It is necessary that the appellant go further and show that the matter complained of prejudicially affected the net result.” (pp. 105, 106.)
In Cox v. Chase, 99 Kan. 740, 163 Pac. 184, it was said:
“. . . But we are forbidden both by precedent and by statute to reverse causes except for prejudicial error affirmatively appearing when it appears that substantial justice has been done in the case.” (p. 748.)
and held:
“In this state error does not raise the presumption of prejudice. Experience has led to the classification of errors into those termed prejudicial and that greater legion denominated harmless. For the former only can reversal be ordered.” (syl. 11.)
We find nothing in this case to justify a reversal, and the judgment is therefore affirmed. | [
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The opinion of the court was delivered by
Price, J.:
This was an action to recover for personal injuries.
A ruling on the demurrer to plaintiff’s evidence was reserved.
Defendants then introduced their evidence.
Plaintiff introduced evidence in rebuttal.
Defendants offered no evidence in surrebuttal.
At the close of all the evidence, both sides having rested, defend ants renewed their demurrer and, in addition, moved for judgment upon the entire record.
The court sustained the motion for judgment on the ground “the record in this case fails to prove or show any cause of action in favor of the plaintiff and against these defendants,” and took the case from the jury.
Plaintiff has appealed from that order and from the denial of his motion for a new trial.
Highly summarized, the evidence was as follows:
Plaintiff, forty-seven years of age, was engaged in a bulk gasoline and oil business in Arkansas City. His duties were to take orders for and deliver gasoline and oil to local service stations, farmers and other quantity customers. He owned his own truck and other equipment used in his business. He had been so engaged for a number of years and during that period had hauled several thousand loads of gasoline, diesel fuel and oil to customers. He was thoroughly familiar with the dangerous characteristics of his products.
Defendants were the owners of an oil-drilling rig being operated at a lease site in Cowley county. It was under their exclusive control. On May 26 and 31, 1958, plaintiff delivered petroleum products to defendants. He was familiar with oil-rig operations. After he left the rig site on Saturday afternoon, May 31, defendants lighted the “sample stove,” which was a piece of equipment used to dry well cuttings. Apparently it had been made by defendants from odds and ends of pipe and scraps of metal. The flame was concealed within the stove, which was down on the ground among other equipment. In order to see the flame one would have to stoop down low and look through a small opening near the ground.
At about 5:30 o’clock on the afternoon of Monday, June 2, plaintiff, pursuant to a call by defendants, arrived at the rig site with 100 gallons of gasoline, 750 gallons of diesel fuel, and a barrel of oil. It was broad daylight, and the temperature was 85 to 90 degrees. A breeze of approximately five miles per hour was from the south. He unloaded the 750 gallons of diesel fuel. The next thing to do was to fill a barrel with the gasoline. Due to the limited space available because of the various equipment and machinery, he backed his truck into a position whereby the rear end of it was six or seven feet east of the barrel into which he was to pump the gasoline. The opening in the end of the barrel, which was on a rack provided by defendants, was three feet above the ground and about fifteen feet south of the small sample stove. The stove was lighted, and defendants’ employees were aware of the fact. The flame was not visible, except as above related, and the stove gave no outward evidence of being lighted through smoke, heat or color. Plaintiff was not advised by defendants’ employees that the stove was lighted.
As plaintiff began pumping the gasoline from his truck into the small opening in the barrel, fumes rolled out of the barrel — as could be expected on a hot day. The engine of plaintiff’s truck was running at the time so as to operate the pump. After 35 gallons of gasoline had been pumped into the barrel there was a flash explosion near where the sample stove was located. Plaintiff sustained severe burns, to recover for which this lawsuit was filed.
Very briefly stated, the over-all theory of plaintiff — an admitted business invitee on defendants’ premises — is that defendants — under the circumstances of the situation — were negligent in failing to warn him of the “hidden” flame in the sample stove, which, when the gasoline fumes came in contact with it — brought about the flash explosion and fire.
Also, very briefly stated, defendants, on the other hand, contend:
There was an utter failure of proof of negligence on their part. Plaintiff, an experienced hand in the handling of gasoline and oils, was in as good position as defendants’ employees to comprehend the situation and is presumed to have seen the sample stove which was in plain sight. At no time did plaintiff testify that he did not know of the stove or that it was lighted. If in fact he did know of it, then he stood in the same position as defendants with respect to negligence. Plaintiff’s entire case is based upon speculation and conjecture as to the cause of the fire and he attempts to pyramid presumptions upon presumptions in order to make out a case.
The trial court having sustained defendants’ motion for judgment upon the entire record — the question presented is whether the evidence, taken as a whole, was sufficient to warrant submission of the case to the jury.
Where no evidence is presented, or the evidence presented is undisputed and is such that reasonable minds could not accept it as sufficient to establish the existence of a fact, it becomes the duty of the court to remove the issue from the jury. (Hickey v. Fox- Ozark Theatres Corp., 156 Kan. 137, 142, 131 P. 2d 671; Schmid v. Eslick, 181 Kan. 997, 1004, 317 P. 2d 459.)
On the other hand — as in the case of a demurrer — in reviewing the propriety of an order sustaining a motion for a directed verdict, or, as here, a motion for judgment upon the entire record, we are required to resolve all facts and inferences reasonably to be drawn from the evidence in favor of the party against whom the ruling is sought (Weber v. Wilson, 187 Kan. 214, 216, 356 P. 2d 659), and it follows that where the evidence is such that reasonable minds could reach different conclusions thereon the motion must be denied and the matter submitted to the jury. (Revell v. Bennett, 162 Kan. 345, 176 P. 2d 538.)
The abstracts in this case contain 161 pages and include a number of photographs of the scene. In addition, we have been furnished with excellent briefs by both parties covering the law on all phases of the case. The entire record has been examined and consideration has been given to all contentions, but in view of our conclusion a detailed discussion of the evidence and the many arguments made would serve no good purpose. With full recognition of the rule that a jury should not be permitted “to roam the unfenced fields of speculation and conjecture,” we nevertheless feel compelled to hold that the evidence on the many features of this case was such that it should have been submitted to the jury for its determination of the ultimate questions involved.
The order sustaining defendants’ motion for judgment is reversed with directions to grant a new trial.
Parker, C. J., and Price, J., dissent from paragraph 3 of the syllabus and the corresponding portion of the opinion. | [
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The opinion of the court was delivered by
Wertz, J.:
This was an action by plaintiff Bessie Ally, now Bessie Ally Brown Axton, to construe the terms of an antenuptial contract entered into between her and A. J. Brown, now deceased, and to recover against Browns estate money due her under the terms of the contract. The pertinent facts follow.
In April, 1943, A. J. Brown, the deceased, then seventy-two years of age, a retired railroad employee, successful farmer and businessman, and Bessie Ally, a well-to-do widow, since remarried, plaintiff (appellant), then fifty years of age, were contemplating marriage. Each had had one prior marriage. Brown had two grandchildren, Ralph Alter and Geraldine Anderson (appellees), children of his deceased daughter; Bessie Ally had one daughter. At the time of the contemplated marriage each of the parties owned a considerable amount of both personal and real property, and, desiring to protect their separate property for the benefit of their respective children, sought the legal services of Mr. Dallas Knapp to prepare an antenuptial contract governing such rights. The contract was prepared, the parties signed it, and on April 28, 1943, they were married.
The pertinent part of the contract provided:
“That each of them, the said A. J. Brown and Bessie Ally, hereby agree, covenant and declare it to be his and her desire that during their marriage each of them shall be and continue completely independent of the other, as regards the enjoyment and disposal of all property which each of them may own at the commencement of said marriage and each of them hereby agrees, and covenants with the other, in view and in consideration of said proposed marriage that so far as is legally possible by their private acts and agreements, all of the property belonging to each or either of them at the commencement of the marriage shall be held and be enjoyed by him or her and be subject to his or her disposition as his or her separate property in the same manner as if said proposed marriage had never been celebrated.
“The Same Parties Mutually Agree that in the event any property is accumulated or acquired after said marriage by the parties hereto, then that said property shall be held, owned and enjoyed by said parties as joint tenants and not tenants in common, and upon the death of either all of said property remaining so accumulated or acquired, shall pass to the survivor.
“. . . That in the event the said Bessie Ally survives the said A. J. Brown and the parties hereto are living together as husband and wife at said time, then that the said Bessie Ally shall be paid the sum of $1,000.00 out of the estate of A. J. Brown, and with this exception, and also the exception relative to acquired or accumulated property after said marriage, the parties hereto further expressly agree and covenant to and with each other, that upon the death of either, the survivor shall not have and will not assert any claim, interest, estate or title under the laws of any state because of such survivorship in or to the property, real, personal or mixed, of which such deceased party shall die seized or possessed, and such survivor hereby relinquishes the heirs, administrators, executors and assigns of such deceased party and any all of his or her claim, distributive share, interest, estate or title that he or she would be entitled to as the surviving husband or wife respectively, . . .”
After their wedding the parties lived together as husband and wife until the death of A. J. Brown on December 10, 1958. Mr. Dallas W. Knapp was appointed administrator of Brown’s estate. Bessie Ally Brown, now Axton, hereinafter referred to as Bessie, filed her claim in the probate court against the estate of A. J. Brown asking the court to construe the antenuptial contract and to determine the interest of the parties in the property held by the administrator. From an adverse judgment in that court Bessie appealed to the district court. She filed her petition asserting that during their more than fifteen years of marriage A. J. Brown accumulated or acquired property valued at approximately $50,000 which was held, owned and enjoyed by them as joint tenants and that the same passed to her absolutely under the provision of the contract that “. . . upon the death of either all of said property remaining so accumulated or acquired, shall pass to the survivor.” The petition further asserted that the court should construe the contract and instruct the administrator to deliver to plaintiff the property to which she is entitled. Whereupon defendants filed a motion to require plaintiff to make her petition more definite. The trial court sustained this motion. In compliance with the court’s ruling Bessie filed an amended petition amplifying her original petition, and defendants answered by way of a general denial, affirmatively asserting that during the marriage relations Brown accumulated no property but in fact had less than at the time of the marriage, that the parties never created a joint tenancy and at the time of his death Brown had no property in joint tenancy with Bessie.
The case was tried to the court on the issues thus joined. The parties stipulated to the date of the marriage; that they had lived together as husband and wife until the death of Brown; that the bank checking account records of Brown be introduced in evidence; that the safety deposit box rental contract entered into on November 11, 1943, between the First National Rank of Coffeyville and A. J. Brown and Ralph Alter, defendant, as joint tenants with right of survivorship, be considered in evidence; that in the safety deposit box was found $19,800 in twenty, fifty and one hundred dollar bills, many being old bills of the series of 1928, ’29 and ’34; and that the income tax records of Mr. and Mrs. Brown from 1943 to 1958, inclusive, be introduced in evidence.
After reviewing the evidence the court found, in pertinent part, that at the time the parties were married both were owners of city and farm property; that Brown was drawing a monthly railroad retirement pension of $44.84.
The court further found:
“X. A. J. Brown and Bessie Brown handled their personal and real property separately at all times during their marriage. They kept their bank accounts entirely separate. They did not place any of their property in joint tenancy ownership, either real or personal. A. J. Brown maintained a separate lock box and Bessie Brown had no control over the contents of this lock box. She did not have the right to enter it. Bessie Brown, during the marriage, explained to the tax accountant who completed the tax returns for many years for the parties that her property would go to her daughter and A. J. Brown’s property would go to his grandchildren. They kept their incomes separately. They paid their income taxes on their separate incomes and in all ways handled their property separately from the time of their marriage until the date of A. J. Brown’s death. There was no property accumulated by the parties in joint tenancy after the marriage.
“XI. The real estate inventoried in the estate of A. J. Brown was owned by the decedent prior to his marriage to Bessie Ally. At the time of his marriage to Bessie Ally, A. J. Brown was 72 years old and receiving a small monthly pension.
“XII. That the so-called ‘account books’ of'A. J. Brown, which were introduced into evidence, are not complete and did not give or purport to give a complete record of the financial transactions of A. J. Brown. No evidence was introduced concerning the amount of the living expenses of A. J. Brown and Bessie Brown after their marriage except such incomplete and fragmentary evidence as is contained in said ‘account books.’
“XIII. That at the time of the death of A. J. Brown, there was no property remaining ‘so accumulated or acquired’ after the marriage of A. J. Brown and Bessie Brown and there was no property in joint tenancy with Bessie W. Brown.
“XIV. The evidence does not disclose when A. J. Brown became the owner of the currency found in his lock box at the time of his death. The evidence does disclose that A. J. Brown, for many years prior to his marriage to Bessie Ally, was in the habit of keeping large sums of cash and making loans of large sums of cash, requiring that such loans be repaid to him in cash.
“XV. There is no evidence that Bessie Brown ever assumed possession of or control over any part of A. J. Brown’s property, either real or personal. There is no evidence that any property of A. J. Brown, either real or personal, was placed in joint tenancy ownership by A. J. and Bessie Brown.
“XVI. The evidence does not disclose the financial worth of A. J. Brown at the time of his marriage to Bessie Ally.”
The court concluded as a matter of law thát the evidence did not disclose what, if any, property was accumulated by either party after the marriage; that the evidence did disclose that the parties did not treat or handle any of the property of Brown as jointly owned property. The court further concluded:
“IV. That the plaintiff had the burden of proving the accumulation and acquisition of property by the parties after this marriage and plaintiff has failed in her proof.”
The court also concluded that Brown had used the safety deposit box in the First National Bank for his own purposes long before the marriage and had considerable money on hand in the form of cash, and continued to do so to the day of his death; that shortly after the marriage Brown created a joint tenancy with his grandson (Alter) as to the afore-mentioned safety deposit box, which was in keeping with the general understanding of the parties under the terms of the contract. The court further concluded that none of the property or monies left by Brown at the time of his death ever became a part of any money or property accumulated or acquired after said marriage by the parties, there being no showing that any such property so accumulated remained at his death.
The trial court denied plaintiff’s claim and ordered judgment in favor of the administrator. From an order overruling plaintiff’s post-trial motion, she appeals.
It is noted that in her brief plaintiff makes no contention that the findings of fact are not supported by evidence. The question therefore remains as to whether the facts found by the trial court warrant the conclusions of law announced and the subsequent judgment. (Davidson v. McKown, 157 Kan. 217, 139 P. 2d 421, 6 A. L. R. 2d 1.) It may also be stated that our review of the record discloses substantial, competent evidence to support the findings of fact.
At the outset it may be stated that the rules governing the construction of contracts generally are applicable to the construction of antenuptial contracts. A claim asserted by one of the parties to an antenuptial contract against the estate of the other party, which if allowed would reduce the amount of assets which would otherwise be distributed to his heirs or legatees, constitutes a de mand against the estate of the deceased party. (In re Estate of Hill, 162 Kan. 385, 176 P. 2d 515.) The burden of proving a claim against a decedent’s estate is on the claimant and the claim must be established by evidence clear and convincing to the triers, or trier, of the facts; and where the findings of fact are not disputed or where they are supported by substantial, competent evidence they will not be disturbed upon appeal. (In re Estate of House, 164 Kan. 610, 192 P. 2d 179; In re Estate of House, 164 Kan. 613, 192 P. 2d 177.)
The gist of plaintiff’s contention is that the court improperly construed the contract. Plaintiff asserts that all property or income received by either party subsequent to the marriage was to be held, owned and enjoyed by the parties as joint tenants, and that inasmuch as Brown’s income tax returns showed his gross receipts from rentals, pension and interest to amount to some forty-eight thousand dollars over a period of fifteen years of married life that she is entitled to that amount out of the estate; that upon her showing of such gross receipts the burden shifted to the defendants, the administrator and the heirs, to show that the gross amount was not property remaining, accumulated or acquired during the marriage relations. We cannot agree with plaintiff’s contention. As above stated, the burden of proof was on the plaintiff to prove her claim, and that burden did not shift until she had made out a prima facie case by showing what property of the estate during the marriage relations had actually been acquired, accumulated and remained at the death of Brown. No evidence was produced by plaintiff showing the net worth of Brown at the time of their marriage. The evidence does disclose that prior to the marriage he was a man of means and kept large sums of money in a safety deposit box, made loans, and requested repayment in cash. The money in the First National Bank in the amount of $19,800 was in a joint safety deposit box with his grandson Ralph Alter. Plaintiff would have the court treat every dollar of deceased’s gross income as an accumulation and property remaining under the terms of the contract without allowing anything for taxes, either real estate or income, living expenses, repairs, or amounts spent for necessities of life as the head of a family.
The burden was upon the plaintiff to produce evidence to make out a prima facie case that the property and monies in the estate of the deceased were accumulated or acquired after the marriage under the terms of the contract, whether held by them jointly or separately. In this she failed, and the court properly held that she was not entitled to recover on her cause of action.
The plaintiff complains that the trial court erred in interpreting the contract in holding that the accumulations referred to in the contract were only applicable to property acquired by the parties acting together and not independently of each other. Assuming the court erred in this interpretation of the contract, it becomes immaterial inasmuch as plaintiff has failed to prove that any property was accumulated or acquired by the parties, either acting separately or collectively, during the marriage.
Plaintiff contends that the contract was against public policy and also void because of Brown s failure to disclose all of his assets at the time of the execution of the contract. There is no merit to these contentions. The case was tried in the court below and presented to this court on the theory that plaintiff’s action was one to construe the antenuptial contract and to set over to her the amount due thereunder. Issues were joined on this theory, the case was tried, and the court made its findings of fact and conclusions of law and entered judgment on the issues as framed.
The two contentions were raised for the first time on plaintiff’s motion for a new trial, thereby shifting her position after a judgment had been rendered. Where the parties to an action mutually adopt a theory in the trial court and fully try their controversy in accordance therewith, this court will not on appeal adopt another theory and decide the case in accordance with the new theory, but will affirm or reverse as may be required in accordance with' the lack or presence of error shown by the record upon the theory adopted by the parties in the trial court. (Potwin State Bank v. Ward, 183 Kan. 475, 488, 327 P. 2d 1091, 80 A. L. R. 2d 166.) Under the doctrine of election of remedies, when a party having the right to choose between two inconsistent remedies, such as affirmance or rescission of a contract, deliberately elects to affirm, he is precluded thereafter from making a new election and is estopped from relying upon rescission of the contract for either affirmative or defensive purposes. A choice of two inconsistent remedies is determined by the commencement of an action and the filing of such action gives finality to the election. (Davidson v. McKown, 157 Kan. 217, 139 P. 2d 421, 6 A. L. R. 2d 1.)
Plaintiff next contends that the court erred in requiring her to file pleadings setting forth her contentions and basis of recovery. This is an appeal from the probate court to the district court, and under the provisions of G. S. 1949, 59-2408 the district court may require pleadings to be filed or amended. (In re Estate of Shirk, 186 Kan. 311, 350 P. 2d 1; 3 Rartlett Kansas Probate Law and Practice [Rev. Ed.] § 1578.) The court did not err in this respect.
Plaintiff further contends that the court erred in refusing her request to comply with our rule No. 52 (G. S. 1949, 60-3827) which provides that in all cases tried before the court without a jury, when either party shall urge the application of a presumption of law, the trial court, upon timely written request of the party setting forth the presumption of law which the party contends applies, shall file with the clerk, either separately or as part of its findings of fact and conclusions of law, a written statement as to whether in deciding the case it did or did not give effect to the presumption of law contended for. Suffice it to say that plaintiff failed to make a timely request to the court or file a written request setting forth the presumption of law which she contended applied prior to the trial and the rendition of judgment; and, as a matter of fact, she did not do so until after she had filed her motion for a new trial. Her request comes too late.
Other contentions raised by the plaintiff have been considered and found to be without substantial merit.
We are of the opinion the findings of the trial court were amply sustained by the evidence, the findings sustained the conclusions of law and the judgment, and the case must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This appeal in a tort action by plaintiff below is from the trial court’s judgment and order of February 20, 1961, sustaining defendant’s motion to set aside a default judgment against defendant previously entered on February 4, 1961, and from any and all rulings contrary to plaintiff’s best interest.
Plaintiff’s petition alleged eight grounds of negligence on the part of defendant which were the proximate cause of a collision resulting in personal injuries and damages to plaintiff on June 17, 1959. On February. 1, 1960, a summons was issued to defendant but it was returned February 10, 1960, showing that defendant was not found. On January 3, 1961, another summons was issued to defendant and was returned on January 10, 1961, showing resident service.
On February 4, 1961, since defendant was in default of answer or appearance, the trial court consolidated this case with another one pending in the same court for trial and entered judgment in favor of plaintiff after hearing evidence and argument of plaintiff’s counsel, who had also waived trial to a jury.
On February 7, 1961, defendant filed an unverified motion seeking a court order vacating and setting aside the default judgment obtained by plaintiff on February 4, 1961, because since October 9, 1960, defendant had been confined as a bed patient in Wesley Hospital in Wichita as a result of a severe case of pneumonia. Defendant had been informed that service on him had been had by tacking a copy of the summons on the door of his apartment. Due to his disability defendant had not had knowledge of the action, and he had been denied the right to appear and defend such action. He alleged he had a defense thereto.
On February 20, 1961, defendant’s motion was presented to the trial court with testimony of Hazel Kammerer, owner and landlady of a large two-story house at 120 East Indianapolis, Wichita. The witness occupied one of the two apartments located on the first floor of the house and the other had been occupied by defendant as a tenant for approximately one and one half years. Defendant had his own mail box located between the doors on the front part of the house. About once a week the witness would “pick up” defendant’s mail from his mail box and take it to him at the hospital. The witness testified that on February 4, 1961, she had found “this paper” tacked to defendant’s front door behind the screen door. She did not know much about these things and did not want to disturb defendant in his condition so she called one of plaintiff’s lawyers and explained the facts and circumstances to him. The next day at approximately 1:00 p. m. she told defendant about it. In taking care of defendant’s apartment, she usually entered through an inside door and she had just happened to go to defendant’s front door on that particular day.
On February 20, 1961, at the close of the hearing on the motion the trial court stated,
“Well the Court is not satisfied that justice has been done and the motion is sustained.”
The trial court’s formal order on the motion was filed on March 24, 1961. The court found the motion was duly filed in the same term of court in which judgment had been rendered and further found it was not satisfied that justice had been done. The judgment was ordered vacated and set aside and defendant given ten days in which to answer or otherwise plead to plaintiff’s petition.
Plaintiff filed her timely notice of appeal from that order.
The only question involved is whether the trial court erred in sustaining defendant’s motion to set aside the default judgment entered against the defendant on February 4, 1961. It is admitted that rendition of the default judgment and all subsequent procedures prior to the taking of this appeal were completed during the January, 1961, term of the eighteenth judicial district of Sedgwick county where there are three terms of court commencing on the second Monday in January, the first Monday in April, and the first Monday in October of each year. (G. S. 1949, 20-1018.) Thus our answer to the question here is that the trial court did not err in setting aside the judgment. (G. S. 1949, 60-3007, Seventh; Voth v. Thompson, 178 Kan. 539, 289 P. 2d 733; Foster v. Marshall, 178 Kan. 583, 290 P. 2d 1031; Abercrombie v. State Highway Commission, 185 Kan. 47, 340 P. 2d 377; Dimit v. Bradshaw, 186 Kan. 220, 350 P. 2d 131.) In the Dimit case the trial court, as here, set aside a default judgment and this court, in approving the trial court’s procedure, quoted from Federal Land Bank v. Richardson, 146 Kan. 803, 73 P. 2d 1005, as follows:
“Independent of the code, it is well recognized in this state that a district court has jurisdiction of its judgments and orders during the term of court at which they are rendered, and in the exercise of its judicial discretion on motion of an interested party, or on its own motion, the court may set aside or modify the judgment or order, (p. 806.) (Emphasis supplied.)” (p. 222.)
The Dimit case also quoted from Standard Life Ass’n v. Merrill, 147 Kan. 121, 75 P. 2d 825, as follows:
“During the term at which a judgment is rendered the district court may, in the exercise of sound discretion, vacate its own orders or judgments, and when an order or judgment is so vacated, the previously existing status is restored and the situation is the same as though the order or judgment had never been made. The issues stand again for trial or for such other disposition as may be appropriate to the situation. (Syl. f 1.)” (p. 222.)
In the Abercrombie case, an eminent domain proceeding, the court in effect stated that where a trial court, within the same term in which a verdict and judgment were rendered, set aside such verdict and judgment on its own motion because it was dissatisfied with the verdict, the trial court not only had the authority but it had the duty to grant a new trial. The above authorities are but a few of the multitude contained in our reports on this well-established rule.
Judgment affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by plaintiff below from the trial court’s judgment in favor of defendants in an action based on contract.
Plaintiff listed her apartment house located at 1820 East Kellogg Street, Wichita, for sale with Alton H. Smith Company, Incorporated. On April 30, 1956, P. E. Klassen, president of the Smith Company, acting also as agent for defendants, Kenneth S. Armstrong, and his wife, Betty Jane Armstrong (hereafter referred to singularly as defendant), submitted three contracts to plaintiff providing, in brief, as follows:
1. For sale of plaintiff’s property at 1820 East Kellogg to defendant for $20,500. (This contract was finally consummated and closed on July 18, 1956, when Klassen gave her a check for $19,125.25 as her proceeds of the sale after plaintiff had executed a deed to defendant and he had placed a $22,500 mortgage on the property.)
2. For sale of defendant’s property known as 2131 South Lorraine, Wichita, for $17,800 to be due in six months, with construction of house thereon by defendant.
3. For sale of defendant’s property known as 2155 South Lorraine, Wichita, for $17,800.
Other details were involved but discussion of them is unnecessary in deciding the only issue before us.
Difficulty arose between plaintiff and defendant with the result that a fourth agreement was entered into by the parties wherein the three previous contracts were referred to, as were the various disputes and differences that had arisen between the parties as a result of which the parties mutually desired to cancel such agreements and place themselves as nearly as possible in the same position they had been in prior to the making of the agreements and to obtain mutual releases from the obligations and claims up to and including the date of the fourth agreement.
The contract then provided the amounts which were to be paid within thirty days to carry out the payments agreed upon as well as the necessary transfers of deeds to return the parties to their initial status. This fourth contract is the one in controversy and the question involved is whether there was complete failure of consideration for this contract.
The record discloses that as a result of a pretrial discussion and hearing on a motion for judgment on the pleadings and a demurrer of defendant, both of which were overruled by the trial court, plaintiff was given ten days in which to decide whether to verify her reply, and the trial court subsequently entered the following order:
“Thereupon, various pretrial matters are discussed by the Court and counsel for both parties whereupon counsel for the defendant, Kenneth S. Armstrong, orally moves the Court for an order removing this case from the jury trial docket for the reason that plaintiff’s cause of action seeks to rescind certain contracts and is an equitable action properly triable to the Court without a jury. Thereupon, the Court finds that said oral motion of the defendant, Kenneth S. Armstrong, to remove this case from the jury trial docket should be, and it is hereby, sustained. The Court further finds at said pretrial conference, that the first matter to be taken up on the trial of this case is the question of whether or not there was a failure of consideration with respect to the alleged settlement agreement attached to the answer of the defendant and marked Exhibit ‘X’.”
Plaintiff’s sixth amended petition (hereafter referred to as the petition ) in the first cause of action referred to and attached as exhibits the four contracts. She alleged defendant placed a mortgage on the property at 1820 East Kellogg, which she was bound to pay since she assumed the mortgage indebtedness to avoid foreclosure on the property, and by reason of which she sought actual damages in the sum of $29,124.72 and because defendant’s breach of contract was wilful and wanton, she sought punitive damages in the sum of $25,-000 together with an order directing defendant to reconvey to her by sufficient warranty deed the property known as 1820 East Kellogg.
In her second cause of action plaintiff alleged that defendant breached the contracts in regard to the houses built at 2131 South Lorraine and 2155 South Lorraine by departing from the plans and specifications agreed upon and because plaintiff had to place certain listed items in the two properties at her own expense, she sought actual damages in the sum of $29,124.00 and further, since the breach was wilful, she also sought punitive damages in the amount of $25,000. Finally, she sought cancellation of all four contracts in their entirety.
Defendant’s answer admitted the execution of the contracts and showed Klassen’s check to plaintiff for $19,125.25 and that upon plaintiff’s demand, defendant had delivered to Klassen deeds to the property at 2131 and 2155 South Lorraine with plaintiff named as grantee along with the deed back to 1820 East Kellogg showing plaintiff as grantee, and defendant’s promissory note in the sum of $2,000 payable to plaintiff, whereby if either party failed to perform under the contracts, the Smith Company or Klassen would be in a position to return the parties to approximately the same position they had been in prior to the execution of the contracts. On September 6, 1956, after some negotiation set out in the answer, the fourth contract was entered into and executed. The answer alleged that although plaintiff had received Klassen’s check for $19,-125.25 on July 18, 1956, she negligently failed to present the check for payment for a period of at least sixty days at which time payment had been stopped on the check and funds were not then available to pay it. Had the check been presented within two or three weeks sufficient funds were in the account to cash the check. Plaintiff caused a criminal warrant to be sworn against her agent, Klassen, charging him with embezzlement of proceeds from the sale of 1820 East Kellogg. Klassen pleaded guilty and was paroled. Klassen had paid approximately $4,050.00 to apply on the check, but plaintiff caused his parole to be revoked and he was sent to prison. Certain exhibits were attached to the above answer but they need not be set out herein.
The reply on the part of plaintiff was an unverified general denial. Evidence was introduced and the trial court heard and considered it. At the close of the hearing the trial court commented it was of the opinion that the determination of the consideration or lack of consideration for the fourth contract should probably be taken up first for the benefit of both parties in the lawsuit for the reason that if there was a failure of consideration, the trial of the case would take on a different aspect than if there were not a failure of consideration. The court was of the opinion it had not been shown there was any mutuality of mistake of fact in the making of the fourth contract at the time it was made. The trial court understood plaintiff was relying on the proposition there had been such a mutual mistake of fact because both parties believed Klassen’s check dated July 18, 1956, was good when in truth and in fact it was not good. However, in the trial court’s opinion plaintiff had not shown that defendant had any knowledge whether the check was or was not good and, we might add, the record more clearly shows this defendant did not even have knowledge of the check. The trial court went on to say, in effect, that in its opinion there could not have been mutual mistake of fact in that regard. From a thorough study of the instrument, the trial court could not determine that the contract stood or fell on the “goodness” of Klassen’s ■ check for the reason that plaintiff had not shown there was any failure of consideration, and the court therefore held there was consideration for the contract. That determination left the parties with the fourth contract. The journal entry of judgment, in pertinent part, read:
“Thereupon, counsel for both plaintiff and defendant announce they are ready for trial and present their respective opening statements. Thereupon, the Court announces that in accordance with the order of the Court made at the pretrial conference and dated March 14, 1960, the first matter to be taken up on the trial of this case is the question of whether or not there was a failure of consideration with respect to the alleged settlement agreement identified as Exhibit ‘D’ attached to the petition of the plaintiff and also identified as Exhibit ‘X’ and attached to the answer of the defendant.
“Thereupon, the plaintiff presents her evidence and rests.
“Thereupon, the defendant orally moved the Court for an order and finding that plaintiff has faffed to show there was a failure of consideration for the settlement agreement referred to hereinabove.
“Thereupon, after hearing the oral arguments of counsel for both parties, reviewing the evidence, and being fully advised in the premises, the Court finds that plaintiff has failed to show by the evidence either a failure of consideration for the said settlement agreement or a mutual mistake of fact with respect thereto as contended by plaintiff.
“Thereupon, the defendant moves the Court for judgment upon the plaintiff’s first and second causes of action herein, in view of the pleadings, the evidence, and the findings of the Court. After hearing further oral arguments of counsel for the parties and being fully advised in the premises, the Court finds that the plaintiff should take naught by virtue of her first and second causes of action herein and that the defendant should have judgment against the plaintiff for the costs of this action.
“It Is Therefore by the Court Considered, Ordered, Adjudged and Decreed that the plaintiff should take naught by virtue of her first and second causes of action herein.
“It Is Further Considered, Ordered, Adjudged and Decreed that the defendant should have judgment against the plaintiff for the costs of this action.”
The contracts involved in this case are before us the same as they were before the trial court, and we have the same duty in regard thereto as did that court. (Bailey v. Talbert, 179 Kan. 169, 294 P. 2d 220.) Plaintiff is estopped from denying the results of her own acts as shown in the pleadings and also inherently included in the findings of the trial court. The record shows the trial court gave diligent attention to the circumstances of this case and was unable to find any evidence to support plaintiff’s contention there was failure of consideration due to mutual mistake of fact. This conclusion is supported not only by the pleadings and findings but a consideration of the evidence convinces us her claim of mutual mistake was not well-founded because everything pointed to the contrary. The result is this court cannot say the trial court erred in any matters complained of.
Judgment affirmed. | [
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Caplinger, J.:
Bobby Frank Kraft appeals from the district court’s denial of his motion to withdraw his plea to aggravated escape. Kraft claims that because he was on “house arrest” at the time he absconded, he was not in “lawful custody” pursuant to K.S.A. 2004 Supp. 21-3810(a)(l). Therefore, Kraft argues the factual basis provided to the district court was insufficient to support his plea and the district court abused its discretion in denying his motion. Kraft also alleges the district court failed to consider his ability to pay attorney fees on the record at sentencing.
Factual and procedural background
At the plea hearing, tire State recited the following factual basis for Kraft’s plea to aggravated escape from custody:
“Judge, evidence would be on January 4th, 2005, at die Johnson County Residential Center in Johnson County, Kansas, the defendant, Bobby Frank Kraft, was allowed to leave. He was being held there on conviction for attempted robbery on Johnson County case 02CR1106. As terms of his probation, the defendant was allowed to go to his residence in Kansas City, Kansas. Corrections personnel were unable to locate him. He was declared absent without leave when he failed to return to the Center.”
Following this recitation, Kraft’s trial counsel agreed that the State had proffered a factual basis sufficient to permit a jury to convict Kraft of aggravated escape, and Kraft affirmed that the State’s factual proffer was accurate. After Kraft affirmed that he entered the plea of his own free will, the court found Kraft guilty of attempted aggravated escape from custody.
Prior to sentencing, Kraft filed motions to withdraw his plea and to dismiss the complaint. Kraft asserted good cause existed to withdraw his plea because (1) his attorney erred in explaining the charges to him and in concluding he was in lawful custody at the time he absconded; and (2) Kraft would not have pled guilty to a crime he could not have committed.
Following a hearing, the district court ruled Kraft was in lawful custody at the time he absconded and, therefore, had not shown good cause to withdraw his plea.
The district court then imposed the sentence recommended in the plea agreement, a mid-range sentence of 6 months. The court noted that although Kraft’s criminal history score and the crime severity level resulted in presumptive probation, a special rule applied requiring incarceration. See K.S.A. 2004 Supp. 21-4603d(f).
On appeal, Kraft argues the district court abused its discretion by denying his motion to withdraw his plea. Kraft reasserts his argument that he was not in lawful custody at the time he absconded, and therefore he could not be charged with aggravated escape. Additionally, Kraft claims his attorney was ineffective because he erroneously concluded Kraft was in “lawful custody,” which prevented Kraft from making a knowing and intelligent plea.
The primary issue on appeal is whether the district court correctly concluded Kraft was in “lawful custody” when he absconded while on house arrest. If so, we must affirm the district court’s conclusion that Kraft failed to show good cause to withdraw his plea. If Kraft was not in lawful custody, then the district court reached its conclusion based on a faulty legal conclusion and must be reversed. See Griffin v. Suzuki Motor Corp., 280 Kan. 447, 452, 124 P.3d 57 (2005) (“ ‘A district court by definition abuses its discretion when it makes an error of law.’ ”).
Standard of review
Prior to sentencing, a guilty plea may be withdrawn “for good cause shown and within the discretion of the court.” K.S.A. 2004 Supp. 22-3210(d); State v. Harned, 281 Kan. 1023, 1042, 135 P.3d 1169 (2006). “ ‘The decision to deny a motion to withdraw a plea lies within the sound discretion of the trial court, and the court’s decision will not be disturbed on appeal absent a showing that the court abused that discretion.’ [Citation omitted.]” 281 Kan. at 1042. A district court abuses its discretion when no reasonable person would adopt the view of the district court or if its “decision goes outside the [legal] framework of or fails to properly consider statutory limitations or legal standards.” State v. Edgar, 281 Kan. 30, 38, 127 P.3d 986 (2006).
In evaluating whether good cause has been shown, the district court should consider three factors: “ ‘(1) [whether] the defendant was represented by competent counsel, (2) [whether] the defendant was misled, coerced, mistreated, or unfairly taken advantage of, and (3) [whether] the plea was fairly and understandingly made. [Citation omitted.]’ [Citation omitted.]” 281 Kan. at 36. Kraft claims he established all three factors here.
To the extent that the resolution of tire issue requires interpretation of K.S.A. 2004 Supp. 21-3809 and K.S.A. 2004 Supp. 21-3810, this court’s review is unlimited. See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). The fundamental rule of statutory construction is to ascertain the legislature’s intent. The legislature is presumed to have expressed its intent through the language of the statute. 281 Kan. at 159. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. 281 Kan. at 159.
Did Kraft escape while in “lawful custody”?
“Aggravated escape from custody is: (a) Escaping while held in lawful custody (1) upon a charge or conviction of a felony.” K.S.A. 2004 Supp. 21-3810(a)(l). As used in K.S.A. 2004 Supp. 21-3810, “custody” and “escape” are defined in K.S.A. 2004 Supp. 21-3809(b):
“(1) ‘Custody’ means arrest; detention in a facility for holding persons charged with or convicted of crimes . . . ; detention in a hospital or other facility pursuant to court order, imposed as a specific condition of probation or parole or imposed as a specific condition of assignment to a community correctional services program;.. .or any other detention for law enforcement purposes. ‘Custody’ does not include general supervision of a person on probation or parole or constraint incidental to release on bail.
“(2) ‘Escape’ means departure from custody without lawful authority or failure to return to custody following temporaiy leave lawfully granted pursuant to express authorization of law or order of a court.” (Emphasis added.)
The parties do not dispute that Kraft was ordered to attend the Johnson County Community Corrections Residential Center (Cen ter) as a condition of probation for his conviction of attempted robbery, and that as long as Kraft resided at the Center, he was in lawful custody.
Rather, Kraft argues that because he had been placed on house arrest, he was no longer in lawful custody. In support of this argument, Kraft suggests that “custody” or “actual or constructive control” is characterized by the defendant’s place of residence, and as long as the State required him to reside at a community correctional facility, he was within the State’s custody. However, Kraft contends that once he was released and placed on house arrest, he was not expected to return to the facility to stay. At that point, Kraft claims he was under general supervision and within the statutory exception which provides that custody “does not include general supervision of a person on probation.” K.S.A. 2004 Supp. 21-3809(b)(1).
The State, on the other hand, suggests custody is defined by whether prison officials evidenced an intent to abandon or give up their prisoner, leaving the prisoner free to go on his or her way. Additionally, the State avers that Kraft was restrained by a court order directing him to complete the program and, thus, was detained pursuant to the specific language of the statute.
The district court noted the lack of authority on the particular issue raised here, but concluded the term “custody” should be broadly interpreted based upon the plain language of the statute, which defines “lawful custody” to include “ ‘any other detention for law enforcement purposes.’ ” K.S.A. 2004 Supp. 21-3809(b)(l). In ruling that Kraft was in lawful custody at the time he absconded and, therefore, had not shown good cause to withdraw his plea, the district court concluded that custody is determined by the level of control exerted by corrections officers and the level of freedom permitted Kraft.
Like the district court, we are aware of no Kansas case law specifically considering whether an individual who has been assigned to a residential treatment center and then conditionally released to house arrest is considered to be within “lawful custody” pursuant to K.S.A. 2004 Supp. 21-38I0(a)(l). However, we believe the district court’s interpretation of the phrase “lawful custody” is gen erally consistent with Kansas precedent, which looks to the State’s level of control when determining whether a defendant is within “lawful custody.”
For instance, in State v. Pritchett, 222 Kan. 719, 720, 567 P.2d 886 (1977), the court considered whether a juvenile defendant was in lawful custody when he left a hospital at a time when no state officials were present. In analyzing the phrase “lawful custody” within the meaning of the aggravated juvenile delinquency statute (since repealed in 1996), the court considered several state and federal cases and ultimately concluded Pritchett was in custody because State officials had not evidenced an intent to let him go. The court aptly reasoned:
“The common thread which runs through these cases is the idea that custody contemplates an intent on the part of prison officials to exercise actual or constructive control of the prisoner and that in some manner the prisoner’s liberty is restrained. [Citation omitted.] There is no requirement diat the prisoner be constantly supervised or watched over by prison officials. [Citation omitted.] The key factor is that prison officials have not evidenced an intent to abandon or give up their prisoner, leaving him free to go on his way.” 222 Kan. at 720.
See also State v. Briggs, 30 Kan. App. 2d 807, 811, 48 P.3d 686, rev. denied 274 Kan. 1114 (2002) (defendant was in lawful custody when he fled the courthouse while awaiting officer to accompany him); State v. Pichon, 15 Kan. App. 2d 527, 537-38, 811 P.2d 517, rev. denied 249 Kan. 778 (1991) (defendant was in lawful custody on excursion to local community center when defendant fled from a threat and failed to turn himself in after threat passed).
In finding the defendant was in lawful custody in this case, the district court relied upon the principles articulated in State v. Garrett, 235 Kan. 768, 684 P.2d 413 (1984). There, the State appealed after the district court dismissed Garrett’s aggravated escape from custody charges. 235 Kan. at 771. Garrett had been required to reside at a community corrections center as part of the terms of his probation. Garrett signed a document acknowledging that if he failed to return to his designated housing at the designated time, he could be found guilty of escape. 235 Kan. at 769.
Garrett checked out of the center on a job-seeking furlough but failed to return at the time directed. Instead, Garrett traveled to another city to visit relatives and did not return until later that evening. After Garrett was charged with aggravated escape from custody, he moved to dismiss the charge, asserting he had not escaped “lawful custody” within the meaning of the statute. Garrett, 235 Kan. at 770-71. The district court dismissed the complaint on constitutional grounds, although Garrett had not asserted a constitutional defense. 235 Kan. at 771.
On appeal, our Supreme Court addressed whether the statutes cited were unconstitutionally vague and whether the offense of aggravated escape from custody applied to a convicted felon who, without permission and in violation of the rules, leaves a community corrections program. After citing the statutory language, the court discussed Pritchett and its analysis of several federal and state escape cases. 235 Kan. at 771-72. The court concluded that because Garrett “was being detained in a facility for holding persons convicted of crimes and was also being detained pursuant to court order,” he was in custody within the meaning of the statute. 235 Kan. at 774.
Here, like Garrett, Kraft was in custody because he was being detained in a facility pursuant to court order. As defined by K.S.A. 2004 Supp. 21-3809(b)(l), custody includes “detention in a hospital or other facility pursuant to court order, imposed as a specific condition of probation or parole or imposed as a specific condition of assignment to a community correctional services program.” Kraft was ordered to complete the Johnson County Community Corrections Residential Center program as a condition of his probation. Thus, although Kraft was no longer residing at the Center, he was in the custody of the Center until he was released from the program.
This conclusion is supported by the testimony of Amy Zetmeir, a residential supervision officer (RSO) for the Center. Zetmeir characterized the centers release program as a “high form of supervised probation.” According to Zetmeir, the district court assigns probationers to the program, which consists of an initial stay of approximately 120 days followed by two phases of conditional release, each lasting approximately 2 weeks. During these two phases, the probationer is transitioned from the “facility into their house or wherever they will be living again.”
According to Zetmeir, before the first phase begins, the probationer, the RSO, and the intensive supervision officer (ISO) conduct a home visit and review the job and transportation plans to ensure the plans are satisfactory. After the plans are approved, the probationer is placed on house arrest for 2 weeks and supervised by a house arrest officer. Significantly, Zetmeir testified that during this first phase, the “client is still under supervision as a residential client.” During this time, the probationer receives “day for day” credit toward his or her sentence, and the probationers movements are continuously monitored. The probationer reports at least twice a week to his or her RSO and once a week to his or her house arrest officer.
Zetmeir further explained that if the probationer does not experience any problems in the first 2 weeks, the probationer enters the second phase, in which the RSO releases the probationer to ISO supervision for an additional 2 weeks. Until the RSO and the probationer sign the release form, however, the probationer continues in the program and the probationer is not under the general supervision of the ISO. As long as no problems occur during the entire 4-week period, the RSO fully releases the probationer to the ISO and removes the probationer from house arrest.
However, Zetmeir testified that if a probationer violates a probation term during the first release phase, the probationer typically is returned to the Center.
Zetmeir testified that Kraft signed out of the residential facility on January 4, 2005, and failed to return to the center for a scheduled appointment on January 12, 2005, with Zetmeir and Kraft’s house arrest supervisor. In fact, according to Zetmeir, Kraft never really began the first conditional release phase, as “[h]e picked up his [monitoring] equipment but never made it home with the equipment to set it up.”
It is undisputed that Kraft did not complete the first release phase and never was released to tire supervision of the ISO. Re-cause Kraft had not been released to the custody of his ISO, he was still under the control of the residential center, a community corrections program Kraft was ordered to complete as a condition of his probation. Based on these facts, we find the program officials had not evidenced an intent to abandon or give up Kraft, nor was he free to go on his way. Thus, we hold Kraft was in lawful custody within the meaning of the statute, and the district court did not abuse its discretion in finding Kraft did not show good cause to withdraw his plea.
Did the district court err in denying Kraft’s motion to dismissP
Kraft also appeals from tire district court’s denial of his motion to dismiss. However, Kraft failed to brief this issue. Issues not briefed on appeal are considered abandoned or waived and will not be addressed by the court. State v. Holmes, 278 Kan. 603, 622, 102 P.3d 406 (2004). Accordingly, we find Kraft abandoned this issue.
BIDS fees
Kraft next argues the district court erred in ordering him to reimburse the Board of Indigents’ Defense Services (BIDS) fees because it failed to consider on the record at sentencing his ability to pay the fees or the financial burden payment of the fees would impose upon him.
At sentencing, the district court did not impose BIDS fees. However, the journal entry of sentencing imposed BIDS fees, but did not specify the amount of the fees. Kraft argues the court failed to inquire into his financial ability to pay the fees as required by K. S. A. 2004 Supp. 22-4513 and State v. Robinson, 281 Kan. 538, 132 P.3d 934 (2006). We agree and reverse the district court’s imposition of BIDS fees and remand for resentencing with directions to the sentencing court to comply with K.S.A. 2004 Supp. 22-4513.
Affirmed in part, reversed in part, and remanded with directions. | [
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Caplinger, J.:
This appeal is from the district court’s dismissal of a petition for judicial review of an agency action for lack of standing. The Board of County Commissioners of Sumner County (the Board), Tri-County Concerned Citizens, Inc. (TCCCI), and Dalton Holland, collectively “petitioners,” challenged the issuance of a permit by the Kansas Department of Health and Environment (KDHE) to Waste Connections of Kansas, Inc. (Waste Connections) to construct a solid waste landfill in Harper County. Petitioners alleged the KDHE failed to collect data and determine the appropriateness of the site pursuant to Kansas law.
The district court dismissed the petition for lack of standing, finding none of the petitioners were parties to the agency proceedings under the Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA).
Factual and procedural background
In August 2002, Waste Connections applied to the KDHE for a permit to construct and operate a municipal solid waste landfill on a site in Harper County known as Plumb Thicket. In September 2002, the Board authorized a study by Terrane Resources to evaluate the site’s suitability as a landfill. The Board submitted the results of the Terrane study, which discovered regulatory deficiencies in the site, to the KDHE in May 2003.
In April 2003, the KDHE held public hearings in Harper County, Kansas, regarding the proposed permit. These proceedings were not, however, conducted pursuant to K.S.A. 77-501 et seq.
Thereafter, members of TCCCI and other groups submitted comments on the pending permit. KDHE formally responded to the comments. In September 2005, KDHE granted Waste Connections a permit to construct and operate the Plumb Thicket Landfill.
On October 3, 2005, the Board, TCCCI, and Holland filed a petition for review in Shawnee County seeking to stay the effectiveness of and nullify the permit granted to Waste Connections. Petitioners filed a first amended petition on November 10, 2005, generally alleging damages and procedural injuries had or would result from operation of the landfill. They further alleged that if the site of the proposed landfill failed to meet applicable legal requirements, it might affect the quality of water in the Chikaslda River, a source of water for some residents of Sumner County. Additionally, the petitioners alleged the landfill could cause damage to real property belonging to members of TCCCI, including Holland. Finally, petitioners asserted the KDHE failed to collect adequate information as required by Kansas law regarding the propriety of and potential contamination from the site. In support of these allegations, the petitioners cited to the Terrane study as well as to a second study conducted at the request of petitioners by Bums & McDonnell. Waste Connections later intervened in the action as a party respondent/defendant.
Shortly thereafter, Waste Connections filed a motion to dismiss or in the alternative for a more definite claim. The district court granted the motion to dismiss due to the petitioners’ lack of standing. The court reasoned the KDHE’s determination was directed at Waste Connections rather than the petitioners. Morever, the court held because no agency proceedings were conducted pur suant to K.S.A. 77-501 et seq., the petitioners could not have been “parties” to the proceedings.
The petitioners appeal the district court’s dismissal of their petition for review, arguing the district court erred in finding they lacked standing under K.S.A. 77-611.
Standard of Review
Standing is a jurisdictional issue. Whether jurisdiction exists is a question of law over which this court’s scope of review is unlimited. Similarly, whether a party has standing to sue is a question of law subject to unlimited review. Mid-Continent Specialists, Inc. v. Capital Homes, 279 Kan. 178, 185, 106 P.3d 483 (2005).
Discussion
“ ‘Standing is a question of whether the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant his invocation of jurisdiction and to justify exercise of the court’s remedial powers on his behalf. . . . “Standing to sue” means that a party has sufficient stake in an otherwise justiciable controversy to obtain judicial resolution of that controversy.’ [Citations omitted.]” 312 Education Ass’n v. U.S.D. No. 312, 273 Kan. 875, 882-83, 47 P.3d 383 (2002).
Pursuant to United States Supreme Court precedent, Kansas law permits organizations to sue on behalf of their members if certain requirements have been met. Hunt v. Washington Apple Advertising Comm’n, 432 U.S. 333, 343, 53 L. Ed. 2d 383, 97 S. Ct. 2434 (1977); NEA-Coffeyville v. U.S.D. No. 445, 268 Kan. 384, 387, 996 P.2d 821 (2000).
A. Did the petitioners have standing to sue under the KJRA?
Here, because petitioners filed this action as a petition for judicial review under the KJRA, K.S.A. 77-601 et seq., we must first consider whether they had standing to sue under that Act.
K.S.A. 77-611 defines standing under the KJRA. That statute provides:
“The following persons have standing to obtain judicial review of final or non-final agency action:
“(a) A person to whom the agency action is specifically directed;
“(b) a person who was a party to the agency proceedings that led to the agency action;
“(c) if the challenged agency action is a rule and regulation, a person subject to that rule; or
“(d) a person eligible for standing under another provision of law.”
Here, petitioners assert standing under K.S.A. 77-611(b) and (d).
First, petitioners claim they were parties to the agency proceedings that led to the agency action and thus have standing under K.S.A. 77-611(b). In support, petitioners primarily rely upon Families Against Corporate Takeover [“FACT”] v. Mitchell, 268 Kan. 803, 1 P.3d 884 (2000). There, the Kansas Supreme Court concluded FACT, a nonprofit corporation concerned about the environmental, economic, and social impacts of large-scale hog farms, had standing to seek judicial review of the KDHE’s authorization of a National Pollution Discharge Elimination System (NPDES) permit for construction of a hog farm under K.S.A. 77-611(b) as a “ person who was a party to the agency proceedings that led to the agency action.’ ” 268 Kan. at 804, 810.
The FACT court spelled out the basis for its application of subsection (b):
“At the request of FACT and others, a public meeting was held in Hodgeman County. At that meeting, members of FACT and two consultants hired by FACT submitted comments on the pending permit for Murphy’s hog farm. The record does not disclose whether KDHE formally responded to FACT’S comments.
“FACT participated in the agency proceedings (permit review and public comment) that led to the agency action (granting the permit). During oral argument before us, KDHE’s counsel said: ‘[Tjhose citizens did both as a group and individually have the opportunity to participate in the permitting process through the public hearing process, through the opportunity to submit comments on the permit.’ We hold that FACT is entitled to assert standing as a ‘person who was a party to the agency proceedings that led to the agency action’ under K.S.A. 77-611(b).” 268 Kan. at 810.
Citing the court’s observation that FACT had fully participated in the agency proceedings through permit review and public comment that led to the agency’s action of granting the hog farming permit, petitioners here argue they similarly participated in the review process for the Plumb Thicket landfill permit. Thus, petitioners insist they have standing pursuant to K.S.A. 77-611(b) and the rationale of FACT.
Despite the broad language utilized by the court in FACT, the respondents suggest petitioners’ reliance on FACT is misplaced. Respondents suggest the Supreme Court did not conclude FACT had standing simply because the organization was allowed to participate in the public hearings. Instead, they argue the court determined FACT technically was a party to the agency proceedings because it was explicitly permitted to challenge the issuance of the permit based on the underlying statutory and regulatory schemes. See 268 Kan. at 810-11. The respondents point out that the FACT court held:
“The KDHE administrative regulations support FACT’S standing as a ‘party.’ K.A.R. 28-16-62(g) specifically governs the procedures for modifying, revoking, reissuing, and terminating NPDES permits. Any interested person may request that a permit be modified, revoked, reissued, or terminated. K.A.R. 28-16-62(g)(l) (as FACT did here). Denials of such requests are not subject to public notice, comment, or hearings. However, the regulations state that this informal process is ‘a prerequisite to seeking judicial review of agency action’ in denying the request. K.A.R. 28-16-62(g)(2). This is a clear indication that citizens are allowed to both comment on proposed NPDES permits and seek judicial review of permit granting.” 268 Kan. at 811.
Based upon this quotation, the respondents argue that but for the specific authorization of K.A.R. 28-16-62(g), FACT would not have been found to be a party to the agency proceedings and would not have had standing to seek judicial review based solely on its participation in the agency proceedings.
We cannot agree with the respondents’ interpretation of FACT. The Supreme Court clearly and distinctly held, as set forth above, that FACT was entitled to assert standing as a person who was a “party to the agency proceedings that led to the agency action” under K.S.A. 77-611(b). The court did not condition this holding upon the existence of underlying regulations providing for judicial review. Rather, the court held the citizens in FACT had the opportunity to participate as a group and individually in the public hearing process preceding issuance of die permit and that this participation entitied them to standing as a “party.” Moreover, upon reaching this conclusion, the court immediately proceeded to consider application of the three-part test of NEA-Cojfeyville, further indicating it had concluded its analysis with respect to the application of K.S.A. 77-611(b).
Nevertheless, as respondents point out, after concluding petitioners met the three-part NEA-Coffeyville test, the FACT court briefly returned to the issue of standing under K.S.A. 77-611(b). Discussing certain underlying regulations, our Supreme Court specifically noted the regulations “support” FACT’S standing as a “party.” The court did not indicate, however, that its holding was dependent upon this determination. In fact, it appears to this court that the Supreme Court, in conducting its subsequent analysis of the underlying regulations, actually may have been applying K.S.A. 77-611(d), rather than K.S.A. 77-611(b). In any event, it is clear our Supreme Court held that the citizens in FACT were entitled to standing as a “party” based upon their opportunity to participate as a group and individually in the public hearing process preceding issuance of the permit. Based upon this rationale, we conclude that the petitioners here are similarly entitled to standing as “parties” pursuant to K.S.A. 77-611(d).
B. Do the Board and TCCCI Have Organizational Standing to Sue on Behalf of Their Members?
Waste Connections next contends that even if petitioners can obtain standing under K.S.A. 77-611, they cannot satisfy the three-part test of NEA-Coffeyville. Under that test, an association has standing to sue on behalf of its members when: (1) the members have standing to sue individually; (2) the interests the association seeks to protect are germane to the organization’s purpose; and (3) neither the claim asserted nor the relief requested require participation of individual members. NEA-Coffeyville, 268 Kan. at 387.
Waste Connections contends petitioners have failed to allege any actual injury and, instead, have alleged only an imminent threat or potential injury if the landfill is improperly constructed. They suggest petitioners’ allegations are highly speculative and do not indicate harm will result to any individual. Similarly, KDHE argues petitioners have failed to allege any type of specific injury or causal connection between KDHE’s review of the permit application and any potential harm.
We are greatly aided in our analysis of this issue by this court’s decision in Tri-County Concerned Citizens, Inc. v. Board of Harper County Comm’rs, 32 Kan. App. 2d 1168, 95 P.3d 1012, rev. denied 278 Kan. 852 (2004). There, a panel of this court considered zoning issues regarding the same sanitary landfill — Plumb Thicket — at issue in this appeal. Specifically, in Tri-County, Waste Connections appealed the district court’s order setting aside the original special use permit arguing, inter alia, that TCCCI and the plaintiffs had no standing to challenge the decision. Although the panel in Tri-County reversed the district court and remanded with directions to reinstate the special use permit, it nevertheless concluded the plaintiffs had legal standing. 32 Kan. App. 2d at 1170. Significantly, the panel applied the three-part test of NEA-Coffey-ville, reasoning:
“Applying these various criteria, we are convinced that [TCCCI] has standing to challenge the zoning decision. It is beyond question that [Waste Connections’] application generated significant public interest due to perceptions that the project had major implications for the County. Moreover, [TCCCI] appears to have fulfilled all the requirements for standing: (1) The individual members of the association have standing in their individual capacity since they five within 1,000 feet' of the landfill; property owners this close to a landfill site are aggrieved because they potentially suffer a substantial grievance and a loss of a pecuniary interest. (2) Since the stated purpose of the corporation is to protect the environment, the prosecution of this lawsuit is wholly consistent with the association’s purpose. (3) The participation of the individual members is not necessarily required.” 32 Kan. App. 2d at 1174-75.
Thus, this court has previously determined TCCCI meets the three-part standing test of NEA-Cojfeyville and we see no reason to reconsider application of that criteria herein.
Because we have concluded standing was proper pursuant to K.S.A. 77-611(b) and the three-part test of NEA-Cojfeyville, we hold the district court erroneously concluded that petitioners lacked standing to sue.
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Marquardt, J.:
Gregory McCall appeals his convictions and sentences for two counts of identity theft. We affirm.
Detective Kevin Duncan was working on counterfeit identification cases involving store credit accounts and received a call after two men had been taken into custody at J.C. Penney s. Detective Duncan testified that as soon as he saw the counterfeit identifications, he knew these men were involved in previous cases he was investigating. Based on the information provided by one of the arrested men, Detective Duncan obtained a search warrant for a Missouri house where McCall was residing.
After the service of the search warrant, McCall was arrested by the Kansas City, Missouri, police. McCall was Mirandized by a Missouri officer in Detective Duncan’s presence. Detective Duncan testified that McCall waived his Miranda rights and answered Detective Duncan’s questions. According to Detective Duncan, McCall admitted his involvement in an identity theft ring and provided the names of the two men who had previously been arrested with stolen identities.
Mctlall was charged with two counts of identity theft. McCall waived his right to a jury trial. Initially, McCall hired Carl Cornwell to represent him. However, Cornwell was allowed to withdraw in August 2003. On December 5, 2003, the trial court held a hearing on the motion to withdraw of Bob Thomas, who was representing McCall at the time. Thomas alleged that McCall threatened his safety. McCall disputed Thomas’ assertion and stated that he wanted to exercise his constitutional right to represent himself. Thomas was allowed to withdraw.
At the hearing, the trial court informed McCall of the serious nature of the charges he faced and of the benefits of legal counsel. The trial court also explained to McCall his possible prison terms, the disadvantages of self-representation because McCall was not “law-trained,” and that it would not assist McCall during the trial. McCall said he understood, but insisted he had a constitutional right to self-representation.
The trial court noted for the record that it believed McCall’s decision was knowing and voluntary. Even though McCall admitted taking psychotropic medication due to a brain injury, he was given permission to proceed pro se, with the understanding that standby counsel would be provided upon McCall’s request. McCall stated that he was opposed to having standby counsel.
On December 18, 2003, the State filed a motion to determine McCall’s competency because of McCall’s brain injury, medication usage, and the fact that he sought to call the governors and attorneys general of both Kansas and Missouri as witnesses. McCall filed a lengthy pro se motion opposing the request for a competency hearing.
The trial court held a hearing on the State’s motion, at which McCall was allowed to represent himself. In addition to the facts alleged in the motion, the State claimed that McCall was now alleging personnel at the jail were trying to ldll him. Previous to this, McCall was found to be competent after a federal court evaluation.
McCall objected to the evaluation because he considered himself to be “highly intelligent” and he did not believe there was any reason that he could not understand criminal procedure. McCall denied that his head injury had any bearing on his competency, other than making him slightly paranoid. McCall explained that he wanted the governors subpoenaed because they could be “expert witnesses to the constitutional violations” in his case.
The trial court granted the State’s motion and ordered a mental health evaluation. The evaluator determined that McCall has average intelligence, excellent short and long term memory, good attention and concentration, and “fully understands the nature and purpose of the proceedings against him.” The evaluator believed that McCall was competent to stand trial, and that his ability to defend himself pro se “hinges on his knowledge of case law and court proceedings.”
A hearing was held after the completion of the mental health evaluation; however, there is no transcript of the hearing in the record on appeal. We assume the trial court relied on the mental health evaluation report when making its decision to allow McCall to represent himself at trial. The trial court found McCall guilty as charged and he received a controlling sentence of 44 months’ imprisonment. McCall appeals his conviction and sentence.
On appeal, McCall contends that the trial court denied his Sixth Amendment right to counsel by failing to appoint counsel for him for the competency hearing, and that tire competency determination was tainted due to his pro se status at the hearing. He argues that a hearing at which competency is questioned is a critical stage which implicates the right to counsel. Citing case law from another jurisdiction, McCall claims it was error to allow him to represent himself at a competency hearing.
The Kansas Supreme Court has held that an indigent defendant is entitled to counsel at every stage of the pretrial proceedings and trial. State v. Pierce, 246 Kan. 183, 188, 787 P.2d 1189 (1990). Generally, resolution of this matter involves statutory and constitutional issues and affords this court plenary review of the trial court’s decisions. See State v. Clopton, 30 Kan. App. 2d 1208, 1211, 57 P.3d 21 (2002).
There is no reported Kansas case addressing the issue of pro se representation at a competency hearing. The Court of Appeals of Utah examined the general issue in State v. Drobel, 815 P.2d 724 (Utah App. 1991), where a defendant stated that he wanted to proceed pro se despite numerous prior findings of incompetence. When representing himself, the defendant informed the trial court that he wanted to drop a prior diminished capacity defense.
The Drobel court noted that “competence to stand trial, by itself, ‘does not automatically enable an accused to waive the constitutional right to assistance of counsel and to conduct his or her own defense.’ ” 815 P.2d at 734. However, the court clarified that no separate finding of mental competence, “apart from competence to stand trial, is necessary before a defendant may exercise the right of self-representation.” 815 P.2d at 734.
In Wise v. Bowersox, 136 F.3d 1197 (8th Cir. 1998), the defendant represented himself at a competency hearing, which was held so that the trial court could determine the defendant’s fitness to proceed pro se. The facts of that case are similar to the one at bar; the defendant in Wise objected to the competency evaluation, claiming he was competent and that he was ready for the trial to begin. However, the facts differ because in Wise, the prosecutor attempted to show that the defendant was competent. Without elaboration, the Eighth Circuit ruled that the hearing at which the defendant acted pro se was a “fair inquiry” at which the defendant’s due process rights were protected. 136 F.3d at 1203.
In contrast, in United States v. Purnett, 910 F.2d 51 (2d Cir. 1990), the Second Circuit ruled that a court is “not obliged to accept every defendant’s invocation of the right to self-representation.” 910 F.2d at 55. Therefore, the court held that “where a trial court has sufficient cause to doubt the competency of a defendant to make a knowing and intelligent waiver of the right to counsel, it must appoint counsel — whether defendant has attempted to waive it or not — and counsel must serve until the resolution of the competency issue.” 910 F.2d at 56.
The ultimate question is whether McCall’s constitutional rights were protected at all stages of the proceedings. We are not prepared to enter a bright-line rule regarding pro se representation at a competency proceeding. However, because of the trial court’s findings relating to McCall’s waiver of counsel and the mental health evaluation report, McCall’s Sixth Amendment rights were protected. We disagree with his arguments to the contrary.
Prior to trial, McCall filed a pro se motion to suppress his confession. In the motion, McCall claimed that his confession should be suppressed because Detective Duncan had no authority to question him in Missouri, especially outside the presence of a recording device. At a hearing on McCall’s motion, he “emphatically” denied any confession. The State countered by noting that McCall was Mirandized by a Missouri officer prior to being questioned by Detective Duncan. McCall’s motion to suppress was denied.
At the bench trial, Detective Duncan testified that McCall confessed to the crimes with which he was charged. Detective Duncan claimed that this confession came after McCall waived his Miranda rights. At trial, McCall objected to some of this testimony, claiming there was no evidence of a Miranda waiver.
On appeal, McCall notes that despite his pro se status, he consistently challenged the admissibility of his confession. He now claims once that challenge was entered, the trial court was obligated to conduct further proceedings regarding the voluntariness of that confession. Since that was not done, McCall claims there were insufficient facts to support the trial court’s decision to admit his confession into evidence.
A dual standard is used when reviewing the suppression of a confession. In reviewing a trial court’s ruling on a motion to suppress a confession, the appellate court reviews the factual underpinnings of the decision under a substantial competent evidence standard and reviews the ultimate legal conclusion drawn from those facts de novo. The appellate court does not reweigh evidence, assess the credibility of witnesses, or resolve conflicting evidence. State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
McCall faults the trial court for not holding a Jackson v. Denno hearing. The purpose of a Jackson v. Denno hearing is to allow the trial court to determine the voluntariness of a statement or confession. Factors bearing on the voluntariness of a statement by an accused include the duration and manner of the interrogation; the ability of the accused on request to communicate with the outside world; the accused’s age, intellect, and background; and the fairness of the officers in conducting the interrogation. The essential inquiry in determining the voluntariness of a statement is whether the statement was the product of the free and independent will of the accused. State v. Walker, 252 Kan. 279, 282, 845 P.2d 1 (1993).
McCall never claimed that his statement was involuntary, or that he was improperly coerced. Instead, all of McCall’s complaints centered on his theory that Detective Duncan had no authority to act in Missouri. McCall also believed that the search warrant ob tained and executed by Missouri authorities was invalid, meaning that all of the proceedings were tainted. This is not an issue where McCall meant to raise a Jackson v. Denno-type issue but did not know the term of art; this is a situation where McCall did not challenge the voluntariness of his confession.
Similarly, at the hearing on his motion, McCall did not challenge voluntariness, but instead claimed that there were no witnesses. All of the issues on which McCall focused at the hearing involved the search warrant issued and executed by Missouri authorities in Missouri. This was a legal decision which was not dependent on any facts and would not have been clarified by a hearing.
The trial court did not have jurisdiction over what happened in Missouri. At trial, McCall had the opportunity to cross-examine Detective Duncan regarding certain facts surrounding both the giving of the Miranda warning and McCall’s own statements. We disagree with McCall’s contention on appeal that the trial court was obligated to inquire further into the voluntariness of his confession. The trial court properly addressed the issues before it.
McCall contends that cumulative errors substantially prejudiced him such that he did not receive a fair trial as guaranteed by the United States Constitution.
Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied him or her a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant. Ackward, 281 Kan. at 29.
We would not characterize the evidence against McCall as “overwhelming”; however, we do not believe that the issue of cumulative error comes into play. We are confident that McCall’s trial met all guarantees established by both the United States and Kansas Constitutions.
At sentencing, the trial court ordered restitution in the amount of $128.31 as a “condition of postrelease supervision.” There were no further findings made regarding restitution.
McCall notes that Kansas law allows a trial court to order restitution unless the court finds circumstances which would render the restitution plan unworkable. McCall believes this requires the trial court to determine whether, in fact, a plan is workable. McCall asserts that this court should use the standard applied by the federal courts, which requires the trial court to determine a defendant’s ability to pay.
Resolution of this issue requires us to interpret the meaning of K.S.A. 2006 Supp. 21-4603d(b)(l). 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 trial court’s interpretation. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
K.S.A. 2006 Supp. 21-4603d(b)(l) reads, in relevant part:
“In addition to or in lieu of any of the above, the court shall order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant’s crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable .... If the court finds a plan of restitution unworkable, the court shall state on the record in detail the reasons therefor.”
McCall is not challenging the amount of restitution ordered by the trial court or claiming that the amount is not supported by the evidence presented at trial. McCall’s sole contention is that the trial court erred by not considering his ability to pay.
However, the Kansas Supreme Court has already determined that the clear language of K.S.A. 2006 Supp. 21-4603d(b)(l) malees restitution the rule, and a finding that restitution is unworkable is the exception. Thus, our Supreme Court concluded that it is the defendant’s burden to come forward with evidence of his or her inability to pay. State v. Goeller, 276 Kan. 578, 583, 77 P.3d 1272 (2003). Further, in State v. Cole, 37 Kan. App. 2d 633, 155 P.3d 739 (2007), this court refused to apply the federal standard to the Kansas statute, finding that the clear language of the statute made such an analysis unnecessary.
The trial court did not ei'r by failing to consider McCall’s ability to pay when ordering restitution. The plain language of K.S.A. 2006 Supp. 21-4603d(b)(l) does not require such a finding.
McCall argues that the trial court violated his constitutional rights by using his criminal history score to enhance his base sentence, when his prior convictions were not proven to a jury beyond a reasonable doubt. McCall acknowledges this issue has been adversely decided.
A prior conviction is a sentencing factor and not an element of the crime. Thus, the prior conviction need not be presented in the indictment and proved to a jury in order to be used by the court to increase the sentence. State v. Ivory, 273 Kan. 44, 46, 41 P.3d 781 (2002).
This court is duty bound to follow Kansas Supreme Court precedent, absent an indication the court is departing from its position. See State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). Seeing no departure, McCall’s request for relief must be denied.
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Brazil, J.:
Marcus A. Inkelaar appeals from the district court’s order revoking his probation. Inkelaar also appeals from the court’s original sentencing order assessing him attorney fees to reimburse the Board of Indigents’ Defense Services (BIDS). See K.S.A. 2006 Supp. 22-4513. We affirm the revocation of probation and dismiss the challenge to the BIDS fees for lack of jurisdiction.
Inkelaar was charged in Sedgwick County District Court with one count of rape and one count of aggravated indecent liberties with a child. The rape charge alleged Inkelaar engaged in sexual intercourse with a victim under the age of 14; the aggravated indecent liberties charge alleged Inkelaar engaged in sexual intercourse with another girl who was 14 years old.
Thereafter, Inkelaar entered into a plea agreement with the State in which he agreed to plead guilty to two amended counts of attempted aggravated indecent liberties with a child, severity level 5 felonies. The agreement also provided that the State would recommend the upper number in the appropriate sentencing grid box with the sentences to run concurrently. Under the agreement, the defendant was free to request probation, although the State would argue that the presumptive sentence should be imposed.
On April 8 and May 27, 2004, sentencing hearings were held. The court found Inkelaar’s crime fell in the 5-1 border box and that the presumptive sentencing range was 31-32-34 months’ incarceration. The court continued the original sentencing hearing in order to determine whether Inkelaar would qualify for Labette Correctional Conservation Camp (Labette). At a subsequent hearing, the court ultimately placed Inkelaar on probation for 36 months and imposed an underlying sentence of 32 months’ incarceration. Inkelaar was ordered to successfully complete Labette. The court also ordered Inkelaar to reimburse BIDS for $605 in attorney fees and $50 administrative fee.
Inkelaar successfully completed the Labette program in November 2004 and returned to Sedgwick County. In March 2005, a warrant was issued alleging Inkelaar violated his probation by failing to attend sexual offender treatment as directed and failing to maintain full-time employment. Inkelaar stipulated to violating his probation as alleged and requested his probation be reinstated. The court ultimately revoked and then reinstated Inkelaar s probation; the court extended Inkelaar s probation and assigned him to residential community corrections.
In June 2005, a second warrant was issued alleging Inkelaar violated his probation by violating the law and by failing to maintain full-time employment. During the hearing, Tilja Day Cloud testified that she was a managing partner at a Sonic restaurant and that she hired Inkelaar to work as a cook. Cloud testified that on June 2, 2005, she was in the restaurant office with the bag containing the $300 the restaurant had on hand to start the day. Inkelaar was sitting in the office waiting to clock in when Cloud left the office to assist another employee, covering the money bag with a couple of books and magazines. When Cloud returned to the office, most of the money was gone from the bag. Cloud told everyone in the restaurant she would give them a chance to return the money by placing it in tire bathroom, but no one returned the money. Cloud then called police.
Cloud and the police reviewed the restaurant’s security tapes for about an hour and determined Inkelaar picked up the stack of magazines and money bag, walked out of the view of the camera, and then returned with the magazine stack. Thereafter, Inkelaar was arrested and searched; they found no money on him. During the hour between the money disappearing and his arrest, however, Inkelaar’s girlfriend had visited him at the restaurant.
The court ultimately found there was sufficient circumstantial evidence to establish Inkelaar stole money from his employer. The court then revoked Inkelaar’s probation and ordered him to serve the original sentence imposed. Inkelaar timely appealed from this order.
Evidence of violation of probation
On appeal, Inkelaar contends there was insufficient evidence to prove he committed the theft at the Sonic restaurant and, therefore, the district court erred in finding he violated the terms of his probation. Specifically, Inkelaar noted the criminal theft charges against him had been dismissed by the municipal court without prejudice and that no money was found on his person when he was searched.
To sustain an order revoking probation, the violation must be established by a preponderance of the evidence. State v. Gumfory, 281 Kan. 1168, 1170, 135 P.3d 1191 (2006). A preponderance of the evidence is established when the evidence demonstrates a fact is more probably true than not true. Ortega v. IBP, Inc., 255 Kan. 513, 527-28, 874 P.2d 1188 (1994).
Generally, appellate review of a factual determination is governed by the substantial evidence standard:
“Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion. [Citation omitted.]” State v. Luna, 271 Kan. 573, 574-75, 24 P.3d 125 (2001).
Inkelaar emphasizes he was never convicted of theft or embezzlement and, in fact, the municipal theft charges were dismissed without prejudice. However, he fails to cite to any portion of the record that supports his claim that criminal charges were dismissed. Facts in the brief not keyed to the record on appeal are presumed to be without support under Supreme Court Rule 6.02(d) (2006 Kan. Ct. R. Annot. 36).
Regardless, an eventual criminal conviction for the act which violated the condition of probation is not required to support an order revoking probation. In State v. Rasler, 216 Kan. 292, 295, 532 P.2d 1077 (1975), the Supreme Court held that under K.S.A. 22-3716, probation could be revoked based upon commission of another crime even if the defendant was never charged with the crime or was charged but later acquitted. See also State v. Thompson, 687 N.E.2d 225, 229 (Ind. App. 1997) (probation may be revoked under preponderance of evidence standard even where State had not convicted defendant by establishing guilt beyond a reasonable doubt); State ex rel. Cooper v. Hutcherson, 684 S.W.2d 857, 858 (Mo. App. 1984) (weight of authority in other jurisdictions shows that probation may be revoked on facts of charged offense even though defendant was acquitted under the different standard of proof); Vaughn v. State, 962 P.2d 149, 152 (Wyo. 1998) (because standard of proof differs, court may revoke probation even though defendant acquitted in criminal proceeding based on same act violating probation).
The witnesses testified that the restaurant’s video camera recorded images of Inkelaar picking up the stack containing magazines and the money bag, the stack disappearing, and then shortly thereafter returning the magazines and bag to its original location. No one else was recorded going near the money bag. Although no money was found on Inkelaar’s person when he was searched later, there was evidence that Inkelaar’s girlfriend visited him at the restaurant between the time the money disappeared and Inkelaar was searched.
There was some question about the videotape because the recording was multiplexed, meaning it recorded information from a variety of different cameras that makes it impossible to review one camera’s recording continuously on a standard video player. However, the computer program at the restaurant had the technology to view the recording from individual cameras on a continuous basis, and the restaurant manager, police officer, and Inkelaar had reviewed that continuous display on die day of his arrest.
Based on the record, there is substantial competent evidence to support the district court’s finding that the State proved Inkelaar committed theft by a preponderance of the evidence. Inkelaar was recorded as the only person who had access to the money bag during the time period in which the money disappeared and that he removed the bag from camera view and, thereafter, replaced it. Shortly thereafter, it was determined money was missing from the bag.
Once a violation is proven, the decision to revoke probation rests in the sound discretion of the district court. Judicial discretion is abused only when no reasonable person would take the position adopted by the district court. Gumfory, 281 Kan. at 1170.
In this case, Inkelaar’s original convictions fell within a border box which could have resulted in a prison sentence. Instead, Inkelaar was placed on probation and sent to Labette. After com pleting Labette, Inkelaar s probation had been revoked and reinstated previously for failure to comply with the terms of his probation. Under all the circumstances, it was not an abuse of discretion for the district court to revoke his probation after the State showed it was more likely than not that Inkelaar stole money from his employer. For these reasons, the action of the district court in revoking Inkelaar’s probation was not an abuse of discretion.
Assessment of attorney fees
On appeal, Inkelaar also contends the district court erred in ordering him to reimburse the BIDS for $605 in attorney fees at his original sentencing because the court failed to consider his financial resources or the burden that such an assessment would pose.
The attorney fees were assessed at Inkelaar’s original sentencing hearing in May 2004. However, Inkelaar s notice of appeal was filed in December 2005, well beyond the 10-day period permitted under K.S.A. 22-3608(c). Thus, the panel must first consider whether this court has jurisdiction to address this issue.
Whether jurisdiction exists is a question of law subject to unlimited appellate review. State v. Huff, 278 Kan. 214, 217, 92 P.3d 604 (2004). An appellate court has a duty to question jurisdiction on its own initiative. If the record shows that there is no jurisdiction for the appeal, the appeal must be dismissed. State v. Wendler, 280 Kan. 753, 755, 126 P.3d 1124 (2006). The right to appeal is purely statutory and is not contained in either the Kansas or federal Constitutions. Subject to certain exceptions, Kansas appellate courts have jurisdiction to consider an appeal only if the appeal is taken in the manner prescribed by statute. State v. Legero, 278 Kan. 109, Syl. ¶ 2, 91 P.3d 1216 (2004).
To challenge a conviction or sentence, a defendant must file a notice of appeal within 10 days of sentencing under K.S.A. 22-3608(c). If the defendant fails to timely file a notice of appeal, the appeal should be dismissed for lack of jurisdiction unless one of the limited exceptions exist under State v. Phinney, 280 Kan. 394, 401-02, 122 P.3d 356 (2005).
Here, Inkelaar filed his notice of appeal within 10 days of his probation revocation. However, this same notice of appeal was filed more than 10 days after the original sentencing when the BIDS fees were assessed. Furthermore, the district court’s failure to properly assess BIDS fees does not constitute an “illegal” sentence which can be corrected at any time pursuant to K.S.A. 22-3504. State v. Robinson, 281 Kan. 538, 546-47, 132 P.3d 934 (2006).
After the appellant’s brief was filed, this court issued an order asking Inkelaar to show cause why his challenge to the BIDS issue should not be considered untimely and dismissed. In his response, Inkelaar relied on K.S.A. 22-3602(a), which states that “an appeal . . . may be taken by the defendant as a matter of right from any judgment . . . and upon appeal any decision of the district court or intermediate order made in the progress of the case may be reviewed.” Inkelaar asserts this permits him to challenge even the original sentencing which occurred 18 months before his probation was finally revoked and he was ordered to serve that sentence.
Inkelaar’s interpretation of K.S.A. 22-3602(a) would exacerbate the requirement of filing a timely notice of appeal in criminal cases and ignores established case law that the judgment from a sentence is a separate judgment from a probation violation order. See State v. Carr, 274 Kan. 442, 451, 53 P.3d 843 (2002) (reiterating that probation is separate and distinct from the sentence). A more reasonable interpretation limits the statute to the judgment and intermediate orders leading to that judgment, not separate judgments that might have been filed later under the same case number.
Therefore, this court only has jurisdiction to consider whether the court properly revoked Inkelaar’s probation. It does not have jurisdiction to review the underlying convictions or sentences. See Huff, 278 Kan. at 217 (holding appellate courts only obtain jurisdiction over rulings identified in the notice of appeal).
Accordingly, Inkelaar’s challenge to the BIDS fees assessed during his original sentencing hearing are dismissed for lack of jurisdiction.
Affirmed in part and dismissed in part. | [
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Bukaty, J.:
This case involves a judicial review of an agency action under K.S.A. 77-601 et seq. The Kansas Department of Labor (KDOL) found that Gail E. Coonce had violated K.S.A. 44-5,120 by making several false or misleading statements and misrepresenting material facts regarding his disabilitywhile attempting to obtain workers compensation benefits. It assessed a fine of $20,000. The district court upheld the determination. Coonce now appeals. He raises three issues: (1) Is there sufficient evidence to support KDOL’s findings, (2) did the KDOL correctly interpret a statute in concluding that each statement Coonce made in a single deposition constituted an independent act of fraud or abuse, and (3) was KDOL’s determination otherwise arbitrary and capricious? We find in favor of KDOL on all issues and affirm.
A rather detailed recitation of the facts, especially excerpts from Coonce’s deposition, is necessary for an understanding of the arguments and issues on appeal.
On February 20, 2002, Coonce was injured during his employment as an electronic service technician with Cytek Media Systems (Cytek). While working on a project for the company near Springfield, Missouri, Coonce was attempting to unload heavy equipment when he felt pain in his lower back and was unable to move for an extended period of time. He contacted his supervisor and informed him about the injury on the same day it occurred. He subsequently filed a workers compensation claim against Cytek. Neither Cytek nor its insurer have ever disputed that Coonce suffered an injury on the job and was entitled to workers compensation benefits as a result.
When Coonce returned to Topeka, he sought medical treatment. Doctors diagnosed the injury as a ruptured disc in his lower back. After trying several different treatment options that had little or no effect, Coonce underwent surgery in February 2003 on his back for the removal of the herniated disc and fusion at the L4-5 level. The total cost of this treatment amounted to $84,602.98, which was paid by Cytek and its insurance carrier. Coonce also received temporary total disability benefits in the amount of $37,606.20 (at a rate of $441.05 per week).
In July 2003, the surgeon who performed the surgery rated Coonce at maximum medical improvement. He has not returned to work since his injury.
On October 9, 2003, Dr. James Warren, Jr., who had been treating Coonce since January, made the following observations regarding Coonce’s physical restrictions: “I basically restrict the patient to sedentary work. No lifting, bending and no twisting, nothing greater than ten pounds. I also recommend that he wear his back brace during activities.” Dr. Warren also found that Coonce had attained maximum medical improvement.
At the request of Cytek’s insurance carrier, an independent investigator performed video surveillance of Coonce at his home in the fall of 2003. Specifically, on October 12, Coonce was videotaped performing cement work on his driveway. Coonce began the work in the morning by driving to an equipment rental store to get a cement mixer. He left the home again and returned with bags of concrete mix. The video showed Coonce hfting bags of cement mix and pouring the contents of the bags into a cement mixer, pushing a wheelbarrow, moving the cement mixer, shoveling, bending, and squatting. Coonce performed these activities without a cane over a 3- to 4-hour time period.
On December 23, 2003, Coonce gave a deposition in conjunction with the workers compensation proceeding. Coonce was unrepresented by counsel at the deposition, and the examination was videotaped. During the course of the deposition, Coonce was questioned by Clifford Stubbs, an attorney for Cytek’s insurance company, with whom the following exchanges took place:
“Q. Whether with a cane or without a cane, how long are you able to be on your feet, or how long have you been able to be on your feet since July of 2003, at any one time?
“A. Two hours max.
“Q. And to your knowledge, what were you able to do for two hours, since July of 2003, where you were on your feet that long?
“A. Standing in the garage. I have a — six televisions, six different channels, and I stand there with my cane. I don’t sit in the garage. I go out there to watch a little TV, take the dogs out there with me. I might have been standing there two hours maybe. That’s pushing it.
“Q. If you’re on your feet that long, what type of symptoms do you have?
“A. Sharp feet pain, lower back pain. And again, the tension in the back reaching the point of a migraine.
“Q. If you’re on your feet that long, does your pain become excruciating?
“A. Yes.
“Q. What about bending? Since July of 2003, have you been able to bend?
“A. Not very far forward at all. I said I could pick up that cane, but I would do it by bending my knees and grabbing a hold of the table and pulling myself back up. The answer would be ‘no’ on bending.
“Q. What’s the heaviest thing that you’re able to hit without pain?
“A. That notebook. A gallon of milk is too much.
“Q. What type of pain complaints do you have when you lift a gallon of milk?
“A. The lower back gets more pain in it; and then when that happens, the leg is tied right to it. The leg gets more pain in it.
“Q. When that happens, do you have excruciating pain that you have to set it down, set the gallon of milk down and immediately go sit down or lie down?
“A. Uh-huh.
“Q. Is that a yes?
“A. Yes.
“Q. And has that been, you know, consistent since July of 2003?
“A. Yes.
“Q. Are you able to twist at all? Do you have any difficulties with twisting?
“A. I can’t twist.
“Q. What other physical tasks do you have difficulty performing?
“A. Putting my shoes on, putting my pants on, taking a shower, riding in a vehicle.
“Q. What other physical activities does your back pain or the other pain that you have told me about, prevent you from doing?
“A. Well, I haven’t had sex for two years, because I have no feeling. Gosh, I used to, you know, work on my own car. I used to do a lot of things. Shoot a few basketballs with my daughter, and all that is gone. I’m just—
“Q. Let’s focus on some of those things around the house. Are you able to mow your yard — or do you have a yard, should be my first question?
“A. Yeah, we have a yard.
“Q. Are you able to mow the yard?
“A. No. I have tried. I even bought a riding mower; but it malees me flair as with any activity.
“Q. Are you able to shovel the driveway, if there’s snow?
“A. No.
“Q. Are you able to rake leaves, if the leaves need to be raked?
“A. No. No. I’ve tried, it makes me flair up also.
“Q. Are you able to do any home improvement projects?
“A. No. No, I can piddle for short periods of time.
“Q. In your opinion, what’s the most active thing that you have done since February 20 of 2003, and how long were you able to do it?
“A. I would have to say going to Physical Therapy and my uncle’s funeral, where we drove — it was a half hour, 45 minutes there. I went to the funeral. Didn’t go to the cemetery. Drove back the half hour, 45 minutes. Migraine headache, vomiting, that situation, by the time I get home.
“Q. Anything else more active than that, because that frankly doesn’t sound very active?
“A. I know. It’s riding in a car, though; it’s bumping. If you could feel the pain in my back right now, a little bump, you know, makes it worse. I think that’s why a vehicle does it, or even out and walking. No, sir.”
Coonce later added to this answer by way of an errata sheet, where he explained:
“I’ve been to physical therapy — 18 times; I’ve tried a lot of things. I’ve also taken about 900 pills per month. I have some days better than others, but the bad days far outnumber the good. When I take Oxycontin I do get some pain relief, but my speech is slurred; I loose [sic] coordination; I bump into things; I get very anxious & nervous & dizzy. Then it wears off and I hurt worse.
“Q. Mr. Coonce, in your opinion, are you able to perform any type of work?
“A. No.
“Q. And we’ve—
“A. I mean I could do anything for five or ten minutes. I could do anything for an hour, sit here and talk to you; but I’m worried about getting back home now, the longer we sit here, because if I get a migraine on the road, that’s about all— I’ll take some meds, when I get out of this meeting. I can do anything for a litde while — not anything, but I can do little things. I can [piddle] for a little while.
“Q. When you say ‘a litde while,’ what are you talking about?
“A. Get up this morning, take a shower, get dressed. That’s the maximum, taking a shower. I was ready to call you and say forget it. Take some more medicine. Do it. So a shower is one of the roughest things I can do right now. But I can’t stop showering, you know. Does that answer your question?
“Q. Are you optimistic, or do you have any thought or understanding about whether or not you will be able to obtain work in the future?
“A. I’m still optimistic. I’m only 42.1 am more optimistic than my surgeon, Dr. Smith, is though. He has stated six months, maximum medical improvement. You’re probably going to be like that for the rest of your life.”
In addition to these statements, the attorney asked Coonce to stand to demonstrate his own physical abilities on the videotape. According to the transcript, Coonce described himself as “stiff’ and took a long time to stand from his chair, while he put “significant weight” on his cane. Dr. Smith, who later viewed the videotaped deposition, described Coonce as “showing himself to be extremely disabled” when he attempted to stand.
At the close of the deposition, the insurance company’s attorney questioned Coonce regarding the truthfulness of his answers and discussed Coonce’s right to review the deposition transcript and clarify any answer asked him if needed:
“Q. And have you done, as best you can, to accurately, truthfully and honestly describe your physical complaints and physical abilities since the accident?
“A. Yes.
“Q. Mr. Coonce, you have the right, under our procedure, in Missouri and Kansas, to read the deposition transcript and make sure that she’s taken down my questions accurately and your answers accurately. You can either exercise that right, and she’ll send a copy of that transcript to you with directions on what you should do, or you can waive that right.
“And given the fact that you commented earlier that you have been taking some pain medication— you said you didn’t think it would affect your ability to understand my questions and testify truthfully and honestly — I would request that you exercise your right to read and sign the deposition transcript. Is that acceptable to you?
“A. Yes.”
When Coonce received the deposition transcript, he filled out several errata sheets in which he clarified his deposition answers. However, he did not alter the substance of his answers regarding his physical ability after July 2003, and specifically did not relate any information about the driveway work he had performed in October. Coonce signed off on the transcript and corrections on January 28, 2004.
After receiving the signed transcript and errata sheets from Coonce, the insurance company’s attorney consulted his physicians to get their opinions as to whether Coonce had accurately portrayed his physical disability during the deposition. In a letter dated April 13, 2004, Dr. Smith, Coonce’s surgeon, explained:
“I have met today with Mr. Clifford K. Stubbs. I have reviewed a video tape of Mr. Coonce on October 12, 2003, showing him doing a fair amount of construction work the entire morning. He was laying what appears to be a patio with cement. In addition, I have seen portions of a deposition dated December 23, 2003, specifically I did see a portion of that deposition when Mr. Coonce tried to demonstrate his ability to stand up. The two do not appear equal. On the video tape in October, he is doing a significant amount of work and then in December, two and a half months later, he is showing himself to be extremely disabled. This is very tough. There does seem to be some discrepancy between his deposition and how he was on October 12, 2003.”
In addition, Dr. Warren made the following observations regarding Coonce in a letter dated May 21, 2004:
“After reviewing the videotape, which was done on 10/12/2003, knowing that it was performed three days after my evaluation, which was done on 10/09/2003, my impression is the following:
“1. That the patient does not have a failed back and does not meet the criteria for failed back syndrome. He clearly has had a good outcome from the surgery performed by Dr. Smith.
“2. That the patient clearly fits the diagnosis of malingering. The patient clearly is deceiving his caregivers for secondary gain. The patient says that he is unable to do sedentary work. However, in this videotape, he is observed doing heavy-duty labor for approximately 3 to 4 hours.
“3. My percent impairment would be reduced to 10% or less by AMA guides based on tire percent impairment, which would be given for a surgical procedure of the lumbar spine.
“4.1 am raising the patient’s activity level, recommending that the patient can return to work full duly and can even participate in heavy-duty labor.”
In October 2004, the following “progress report” was added to Dr. Warren’s records after a visit from Coonce:
“This is a gentleman who follows up with me hostile and angry with me because I decreased my disability evaluation percentage down to 10% based on a video tape that was shown to me of Mr. Coonce going [sic] heavy duty labor building a patio doing cement work, bending, twisting, lifting cement bags, turning a cement mixer. This work went on for about 4 hours. The patient prior to that has asked me to write a note saying that he could not do any type of work, not even sedentary. I pointed out to the patient that after he wrote this note and asked me this question about whether or not I could state that he could not do any work at all, the patient is seen on this video tape going [sic] heavy duty labor.”
In addition, Coonce’s testimony during the deposition that he and his wife had not had sex “for two years” appeared inconsistent with the records of Dr. Christopher T. Balcezak, Coonce’s urologist. In a “Progress Note” dated August 7, 2003, Dr. Balcezak observed that “[Coonce] and his wife are currently sexually active several times a month. His wife is currently using oral contraception, and the patient and his wife would like to have a more permanent solution.”
Based on this information, Cytek’s insurance company filed a complaint with the Fraud and Abuse Investigation Section of the Kansas Division of Workers Compensation. The Director of the Fraud and Abuse Unit then issued a summary order finding that Coonce had violated K.S.A. 44-5,120(d)(4)(A) and (B) by making false statements regarding his physical abilities during the deposition. The Director assessed a fine of $20,000 for Coonce’s actions, citing K.S.A. 44-5,120(g).
F olio wing Coonce’s request for a hearing to determine the validity of the summary order, a hearing officer upheld the order. Among other things, the officer found:
“11. The respondent’s willful, knowing or intentional misrepresentation or concealment of a material fact is shown when comparing the respondent’s deposition testimony and his statements to medical providers coupled with the video surveillance taken of the respondent. The sequence of the statement, testimony and the video surveillance supports the conclusion that the respondent could and did perform physical acts that he claimed he was unable to perform without severe pain or because of the impairment caused by his injury.
“13. The state has proven that Respondent committed at least ten violations of K.S.A. 44-5,120(d)(4)(A) and (B) and pursuant to K.S.A. 44-5,120(g)(1) should be fined $2,000.00 for each violation.”
Based upon these conclusions, the hearing officer assessed a fine against Coonce in the total amount of $20,000.
Coonce filed a petition for review with the Kansas Secretary of Labor which was denied. He then filed a petition for review with the district court, alleging that KDOL’s decision was not supported by substantial evidence and the agency had incorrectly interpreted K.S.A. 44-5,120(g) in assessing the fine against him. The court affirmed all the findings.
Our analysis begins with a consideration of our standard of review. Judicial review of KDOL’s determination that Coonce violated the fraud and abuse sections of the Workers Compensation Act (Act) is governed by K.S.A. 77-621. On appeal, a reviewing court may not substitute its judgment for that of an administrative agency. It is restricted to considering whether, as a matter of law, (1) the administrative agency acted fraudulently, arbitrarily, or capriciously, (2) the agency’s administrative order is supported by substantial evidence, and (3) the agency’s action was within the scope of its authority. Lacy v. Kansas Dental Board, 274 Kan. 1031, 1040, 58 P.3d 668 (2002).
This case requires us to consider the proper interpretation of K.S.A. 44-5,120(d) and (g), and then to apply that interpretation to the facts of this case to determine whether the Fraud and Abuse Unit was correct in finding that Coonce violated those sections of the statute in his deposition testimony in December 2003. In doing so, we must utilize a combination of standards of review which are interrelated: whether the decision is supported by substantial evidence, whether the agency correctly interpreted the statute in assessing the fines against Coonce, and whether the agency decision was otherwise arbitrary and capricious.
Substantial evidence in workers compensation cases is evidence that possesses something of substance and relevant consequence and which induces the conclusion that the award is proper. It is evidence which furnishes a substantial basis of fact from which the issue raised can be reasonably resolved. The appellate court reviews the evidence in the light most favorable to the prevailing party and does not reweigh the evidence or assess the credibility of the witnesses. Neal v. Hy-Vee, Inc., 277 Kan. 1, 16-17, 81 P.3d 425 (2003). An appellate court will uphold findings supported by substantial evidence even though evidence in the record would have supported contrary findings. Poff v. IBP, Inc., 33 Kan. App. 2d 700, 706, 106 P.3d 1152 (2005).
On the issue of KDOL’s interpretation of statutes, the interpretation of the Act (of which K.S.A. 44-5,120 is a part) is a matter of law over which an appellate court’s review is unlimited. McIntosh v. Sedgwick County, 282 Kan. 636, 641, 147 P.3d 869 (2006). Under the doctrine of operative construction, “the Board’s interpretation of the Act is entitled to judicial deference. If there is a rational basis for the Board’s interpretation, it should be upheld.” 282 Kan. at 641 (citing Foos v. Terminix, 277 Kan. 687, 692-93, 89 P.3d 546 [2004]).
Finally, as to whether KDOL acted arbitrarily and capriciously, a “rebuttable presumption of validity attaches to all actions of an administrative agency and the burden of proving arbitrary and capricious conduct lies with the party challenging the agency’s action. [Citation omitted.]” Kaufman v. Kansas Dept. of SRS, 248 Kan. 951, 961, 811 P.2d 876 (1991).
Turning to the issues raised by Coonce, he first argues that the hearing officer’s determination that he had committed several fraudulent or abusive acts as defined by K.S.A. 44-5,120(d)(4)(A) and (B) was not supported by substantial evidence. In particular, he asserts that the statute should not apply to him, because (1) he did not receive any benefits as a result of his testimony at the deposition, and (2) his testimony involved “his subjective beliefs as to his condition and as a consequence are not ‘facts.’ ”
K.S.A. 44-5,120 provides in relevant part:
“(d) Fraudulent or abusive acts or practices for purposes of the workers compensation act include, willfully, knowingly or intentionally:
(4) obtaining, denying or attempting to obtain or deny payments of workers compensation benefits for any person by:
(A) Making a false or misleading statement;
(B) misrepresenting or concealing a material fact.”
As to Coonce’s contention that he obtained no benefits from his deposition testimony, the plain language of the statute renders that fact irrelevant if he “attempt[ed] to obtain . . . workers compensation benefits for any person” by the means prohibited by the statute. “When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed.” State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001).
It is true that the final award of compensation for Coonce’s injury came after the fraud and abuse assessment against him. It is also true that he had already received medical benefits and temporary total benefits before he gave his deposition testimony. However, the language in the award reveals that the administrative law judge (ALJ) found that Coonce had “misrepresented the extent of disability following surgery” in order to remain home and obtain a more generous award based on his wage loss. These comments in the award malee it clear that Coonce would likely have received a greater award for wage loss and work disability had his misrepresentations gone undetected.
The plain language of K.S.A. 44-5,120(d)(4) supports the agency’s determination that Coonce’s conduct fell within the scope of that statute, which states that making misrepresentations while “attempting to obtain . . . workers compensation benefits” is a violation of the Act.
As to Coonce’s contention that his statements were merely his subjective assessment of his condition or at the most were exaggerations of his condition and not violations of the statute, he es sentially is asking this court to reweigh the evidence. We decline to do so. It is the role of this court when reviewing an agency decision to review the evidence in the light most favorable to the prevailing party. See Neal, 277 Kan. at 16-17. Here, Coonce made several deposition statements that contrasted sharply with his conduct demonstrated on the videotape taken 2 months earlier. We note that several of the doctors mentioned that Coonce had also misrepresented his condition to them based upon the conduct they observed in the video.
As to his claim of exaggeration, we simply note that the nature and extent of an injured workers work-related disability is often at the heart of a workers compensation claim. If Coonce exaggerated the extent of his injuries here, he necessarily misled the doctors who would rate him and also the judge who would determine his award.
More than substantial evidence supports KDOL’s and the district court’s determination that Coonce’s statements violated K.S.A. 44-5,120(d)(4)(A) and (B).
Coonce next argues that even if there was substantial evidence to support KDOL’s determination that he violated K.S.A. 44-5,120(d)(4)(A) and (B), the agency incorrectly assessed fines against him for each of his misleading statements during the deposition instead of treating the entire deposition as one violation of the Act. He claims the maximum fine against him should be $2,000.
KDOL assessed the $20,000 fine against Coonce pursuant to K.S.A. 44-5,120(g)(1), which states:
“(g) If, after such hearing, the director . . . determines that the person or persons charged have engaged in a fraudulent or abusive act or practice the director . . . shall issue an order or summary order requiring such person to cease and desist from engaging in such act or practice and, in the exercise of discretion, may order any one or more of the following:
(I) Payment of a monetary penalty of not more than $2,000 for each and every act constituting the fraudulent or abusive act or practice, but not exceeding an aggregate penalty of $20,000 in a one-year period.”
Coonce provides no authority for his claim that the deposition should be viewed as one “statement” for purposes of the Act, and the legislative history on the Act is silent as to the point. Further, his argument fails when viewed in the context of the plain language of K.S.A. 44-5,120. Subsection (d)(4) of the statute defines “[f]raudulent or abusive acts or practices” as “obtaining, denying or attempting to obtain or deny payments of workers compensation benefits for any person by” “[m]aking a false or misleading statement” or “misrepresenting or concealing a material fact.” (Emphasis added.) K.S.A. 44-5,120(d)(4)(A) and (B). Subsection (g)(1) further provides that “[p]ayment of a monetary penalty of not more than $2,000 for each and every act constituting the fraudulent or abusive act or practice, but not exceeding an aggregate penalty of $20,000 in a one-year period.” (Emphasis added.) The use of the singular nouns “statement” and “fact,” as well as the legislature’s statement that the agency should assess a fine for “each and every act” that violates the section, support the agency’s interpretation that Coonce should be assessed a fine for each false statement or misrepresentation that he made during the course of his deposition.
There certainly can be no ambiguity in the statute’s usage of the term “fact.” Viewing the evidence in the light most favorable to KDOL, Coonce misrepresented a number of material facts during the course of his deposition. To name a few, he claimed during his deposition that he could not bend; that he could not stand for more than 2 hours at a time; that he could not lift anything heavier than a notebook without experiencing severe pain; that he could not function well when he was on his pain medication; that he and his wife were sexually inactive; and that the most physically active thing he had done since July 2003 was attend his uncle’s funeral. Several other similar misrepresentations are in the record.
The party asserting the invalidity of an agency’s interpretation of a statute bears the burden of proving the invalidity. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 245, 75 P.3d 226 (2003). Coonce has failed to prove that KDOL’s interpretation of the statute was erroneous.
Last, Coonce argues that KDOL acted arbitrarily and capriciously in assessing the $20,000 fine against him. Specifically, he urges that the agency’s assessment was unreasonable in light of the fact that $20,000 is the maximum fine that a person may receive in a 1-year period, and the agency assessed this sizeable fine against him despite the fact that he did not receive any benefits as a result of his misrepresentations.
As we have previously stated, there was more than substantial evidence to support the determination that Coonce violated K.S.A. 44-5,120(d)(4) at least 10 times. Given the agency’s interpretation of the statute, which is likewise supported, it was within the hearing officer’s discretion to assess up to a $2,000 fine for each of these violations. The assessment of the fine was not based “on suspicion and conjecture,” but was based on the evidence in the agency record. Praeger, 276 Kan. at 275 (citing In re Providence-St. Margaret Health Center, 232 Kan. 787, 794, 659 P.2d 199 [1983]). The assessment of the $20,000 fine against Coonce was not unreasonable, arbitrary, or capricious.
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Greene, J.:
The State of Kansas appeals the district court’s denial of its motion to correct an illegal sentence, arguing that the court had a duty to correct the sentence after the defendant, Steven M. McCarley, was sentenced based upon a presentence investigation report (PSI) that misidentified the correct severity level for die precise crime of conviction. We conclude that the State’s stipulation to the PSI at time of sentencing and the State’s failure to timely appeal the sentence require that we affirm the district court. We also conclude that McCarley’s cross-appeal is meritless.
Factual and Procedural Background
After a fender-bender in a grocery store parking lot, McCarley and the driver of the other vehicle engaged in a heated argument regarding degree of damage. When the other driver walked to a pay phone to call the police, McCarley attempted to leave the scene. The other driver’s passenger inquired into McCarley’s attempt to leave, and McCarley invited him to sit down in McCarley’s vehicle and discuss the matter. According to the passenger, however, he never shut the door of the vehicle when McCarley accelerated, made a turn, and pushed the passenger from the vehicle. Observing McCarley’s escape, the other driver returned from the pay phone and attempted to abate the departure; McCarley bumped her in the chest with his vehicle. McCarley was charged with two counts of aggravated battery, one against the driver, and one against the passenger.
The jury was instructed on lesser included offenses and, specifically on count two, was instructed on the elements of aggravated reckless battery as requiring the material finding that “McCarley recklessly caused great bodily harm or disfigurement to Nicola ‘Nick’ Cosentino” and that this occurred “on or about the 3rd day of April, 2005, in Sedgwick County, Kansas.” The jury acquitted McCarley of the charges involving the driver, but convicted him of the lesser offense of reckless aggravated battery against the passenger. The formal “Record of Trial or Plea” identified the guilty verdict on count two, “Aggravated Reckless Battery” without further identification of statutory proscription or severity level.
At time of sentencing, the PSI listed the crime of conviction as aggravated reckless battery, severity level 8, pursuant to K.S.A. 21-3414(a)(2)(B). When the district court inquired of counsel whether there was any question as to severity level or criminal history reported by the PSI, both counsel stipulated that it was correct. This exchange went as follows:
“(The Court): The Presentence Investigation shows this to be a severity level 8 offense, shows Mr. McCarley to have a criminal history score of A. Any dispute by the State as to severity level or criminal history — criminal history — with severity level?
“[Prosecutor]: No, your Honor.”
McCarley was then sentenced for a severity level 8 person felony to 23 months’ incarceration.
After time for appeal had expired, and approximately 34 days after sentencing, the State filed its motion to correct illegal sentence, claiming that McCarley was illegally sentenced to a severity level 8 crime when he was convicted of a severity level 5 crime. Although these lesser included offenses are similar, K.S.A. 21-3414(a)(2)(A) (severity level 5) proscribes “recklessly causing great bodily harm to another person . . .” whereas K.S.A. 21-3414(a) (2)(B) (severity level 8) proscribes “recklessly causing bodily harm to another person with a deadly weapon, or in any manner whereby great bodily harm . . . can be inflicted.” After a hearing, the district judge denied the motion, stating:
“I think the case law is very clear. It’s not — there is a bright line, and that bright line is, when I hear that door in the back of the courtroom go click as it closes behind Mr. McCarley, I can’t correct an illegal sentence if that illegal sentence is in Mr. McCarley’s favor. I can correct it if it is not in his favor. If there’s an illegal sentence that favors a harsher, longer sentence, that is subject to correction. However, if it’s in favor of the defendant for a lesser, less harsh sentence, it cannot be corrected. And I have to overrule the motion.”
The State appeals, and McCarley cross-appeals.
Was the State Entitled to Challenge McCarley’s Sentence On Appeal?
During oral argument, this court expressed a concern for its jurisdiction, inquiring whether the State had the right to appeal the district court’s denial of the motion to correct illegal sentence. We have a duty to question jurisdiction on our own initiative. State v. Wendler, 280 Kan. 753, 755, 126 P.3d 1124 (2006). Following argument the State filed a statement of additional authorities pursuant to Supreme Court Rule 6.09(b) (2006 Kan. Ct. R. Annot. 44). We have duly considered these authorities in addressing our jurisdiction.
The right to appeal is strictly a statutory right. Neither the United States Constitution nor the Kansas Constitution establishes the right to appeal. State v. Flynn, 274 Kan. 473, 477, 55 P.3d 324 (2002). “The State’s right to appeal in a criminal case is strictly statutory, and the appellate court has jurisdiction to entertain a State’s appeal only if it is taken within time limitations and in the manner prescribed by the applicable statutes. State v. Unruh, 263 Kan. 185, 189, 946 P.2d 1369 (1997).” State v. Snodgrass, 267 Kan. 185, 196, 979 P.2d 664 (1999).
K.S.A. 2006 Supp. 22-3602(b) lists the following grounds for which the prosecution can appeal:
“Appeals to the court of appeals may be taken by the prosecution from cases before a district judge as a matter of right in the following cases, and no others:
“(1) From an order dismissing a complaint, information or indictment;
“(2) from an order arresting judgment;
“(3) upon a question reserved by the prosecution; or
“(4) upon an order granting a new trial in any case involving a class A or B felony or for crimes committed on or after July 1, 1993, in any case involving an off-grid crime.”
K.S.A. 2006 Supp. 22-3602(f) adds “[f]or crimes committed on or after July 1,1993, an appeal by the prosecution or the defendant relating to sentences imposed pursuant to a presumptive sentencing guidelines system as provided in K.S.A. 21-4701 et seq. and amendments thereto, shall be as provided in K.S.A. 21-4721 and amendments thereto.”
First, the State argues that it is entitled to challenge McCarley’s sentence pursuant to K.S.A. 21-4721(e), which provides:
“In any appeal, the appellate court may review a claim that: ... (3) the sentencing court erred in ranking the crime severity level of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes.” (Emphasis added.)
As noted by the State, K.S.A. 2006 Supp. 22-3602(f) contemplates an appeal by the prosecution within the parameters of K.S.A. 21-4721. See Wendler, 280 Kan. at 755. Nevertheless, K.S.A. 21-4721 is limited to direct “appeals” and has no application to the State’s attempt to secure appellate review of a collateral attack on a sentence under K.S.A. 22-3504. We reiterate that the State took no direct appeal of McCarley’s sentence; instead, it challenged the sentence after the appeal time had expired through a motion to correct illegal sentence. As has been consistently recognized by our Supreme Court, there are fundamental differences between the right to challenge a sentence on a direct appeal, and the right to challenge a sentence by collateral attack. See, e.g., Bryant v. State, 280 Kan. 2, 118 P.3d 685 (2005).
The State cites no authority to support its argument that K.S.A. 21-4721 can be employed by the State to authorize an appeal of a collateral attack on a sentence, where neither party has preserved a direct appeal. Noting the language of subsection (a) thereof, that “the appeal shall be to the appellate courts in accordance with rules adopted by the supreme court,” we conclude that the legislature did not intend the statute to be utilized in this fashion. The State has no entitlement under K.S.A. 21-4721 to collaterally attack a sentence under these circumstances.
Second, the State relies on other case law generally stating that the State can appeal a “sentencing decision” under either K.S.A. 21-4721 or K.S.A. 2006 Supp. 22-3602(b)(3) as a “question reserved.” See, e.g., Wendler, 280 Kan. 753; State v. Miller, 260 Kan. 892, 926 P.2d 652 (1996). Again, and for the same reasons, these cases are not directly applicable where the State has for whatever reason elected not to appeal, but seeks instead to mount a collateral attack upon a sentence.
Finally, there remains a question of whether the State should be allowed to proceed on a question reserved under K.S.A. 2006 Supp. 22-3602(b)(3). The Kansas Supreme Court has emphasized that questions reserved are not entertained simply to demonstrate trial court errors which are adverse to the State or because a decision would be helpful precedent. See State v. Tremble, 279 Kan. 391, 393, 109 P.3d 1188 (2005). Instead, “[t]o be considered on appeal, questions reserved by the prosecution must be issues of statewide interest important to the correct and uniform administration of criminal law.” State v. Mountjoy, 257 Kan. 163, 167-68, 891 P.2d 376 (1995). Questions reserved by the State in a criminal prosecution will not be entertained on appeal merely to demonstrate whether error has been committed by the trial court. State v. Leonard, 248 Kan. 427, 432, 807 P.2d 81 (1991).
We recognize that there is no “magic” language necessary for the State to preserve a question reserved. No formal procedural steps are required by K.S.A. 2006 Supp. 22-3602(b)(3) to appeal on a question reserved. All that is necessary for the State to reserve a question for presentation on appeal is to make proper objections or exceptions at the time the order complained of is made or the action objected to is taken, laying the same foundation for appeal that a defendant is required to lay. Mountjoy, 257 Kan. at 166.
The question raised by the State is whether the sentencing court erred in denying its motion to correct an illegal sentence when that sentence was based on a PSI to which the State stipulated in open court. Arguably this is a case of limited importance to statewide jurisprudence because presumably it is not often the case that the prosecution will be negligent in its review of the PSI at sentencing, especially when the judge specifically asks the prosecutor if he or she agrees with the PSI. The questions of statewide importance, however, are whether the State may file a motion to correct an illegal sentence based on an error in severity level after stipulating to it at sentencing and long after the time for appeal has run and whether the sentence imposed was illegal. Accordingly, we retain jurisdiction under K.S.A. 2006 Supp. 22-3602(b)(3), deeming the State’s motion and its argument thereon as sufficient to reserve the question.
Was McCarley’s Sentence Illegal?
The State argues on appeal that its motion to correct an illegal sentence was proper under K.S.A. 22-3504(1). At the outset, we note that our Supreme Court has stated that “a motion to correct an illegal sentence pursuant to K.S.A. 22-3504(1) applies in very limited circumstances.” State v. Mitchell, 284 Kan. 374, 162 P.3d 18 (2007). Neither party to this appeal has cited any clear authority from our Supreme Court for the proposition that the State has the right to challenge a sentence under this statute. Although the statutory language appears rather broad, we are uncertain that the legislature intended to vest such rights in the State. In any event, we do not decide this broad question, concluding that McCarley s sentence was not illegal.
Whether a sentence is illegal is a question of law over which this court has unlimited review. State v. Huff, 277 Kan. 195, 199, 83 P.3d 206 (2004). Issues requiring the interpretation and application of a sentencing statute present questions of law, thus also triggering unlimited review. State v. Walker, 280 Kan. 513, 515, 124 P.3d 39 (2005). A motion to correct an illegal sentence under K.S.A. 22-3504 is not a substitute for a direct appeal involving mere trial errors. See State v. Mebane, 278 Kan. 131, 135, 91 P.3d 1175 (2004).
Kansas jurisprudence has defined an illegal sentence as a sentence imposed by a court without jurisdiction, a sentence which does not conform to the statutory provision, either in character or the term of the punishment authorized, or a sentence which is ambiguous with regard to the time and manner in which it is to be served. State v. Nash, 281 Kan. 600, 601, 133 P.3d 836 (2006).
In arguing that McCarley’s sentence was illegal, the State relies principally on an unpublished opinion from a panel of this court in State v. Davis, No. 90,381, unpublished opinion filed April 16, 2004, rev. denied 278 Kan. 848 (2004). We distinguish and elect not to follow Davis not only due to its lack of publication (see Supreme Court Rule 7.04[f][2][i] and [ii] [2006 Kan. Ct. R. Annot. 50] [unpublished opinions are not binding precedent and are not favored for citation]), but also because in Davis the State had not stipulated to severity level and this court did not address the procedural vehicle utilized or timing for the State’s application.
Jurisdiction
K.S.A. 2006 Supp. 21-3107(2)(a) states that “[u]pon prosecution for a crime, the defendant may be convicted of either the crime charged or a lesser included crime, but not both. A lesser included crime is . . . [a] lesser degree of the same crime.” A crime maybe a lesser included offense not only when there is an identity of elements, see K.S.A. 2006 Supp. 21-3107(2)(b), but also when one crime is a lesser degree of the other. See State v. Shumway, 30 Kan. App. 2d 836, 846-47, 50 P.3d 89, rev. denied 274 Kan. 1117 (2002).
“The charging document is the jurisdictional instrument which gives the court authority to convict a defendant of crimes charged in the complaint or of the lesser included crimes thereof. Conversely, if a crime is not specifically stated in the information or is not a lesser included offense of the crime charged, the district court lacks jurisdiction to convict a defendant of the crime, regardless of the evidence presented.” State v. Horn, 20 Kan. App. 2d 689, 692, 892 P.2d 513, rev. denied 257 Kan. 1094 (1995).
“Jurisdiction is the power of a court to hear and decide a matter. Jurisdiction is not limited to the power to decide a matter rightly but includes the power to decide the matter wrongly. In re Estate of Johnson, 180 Kan. 740, 746, 308 P.2d 100 (1957).” State v. Sims, 254 Kan. 1, 9, 862 P.2d 359 (1993).
It is clear that the district court had jurisdiction to convict and sentence McCarley for severity level 8 aggravated reckless battery under K.S.A. 21-3414(a)(2)(B) because it is a lesser degree of tire crime charged. Shumway, 30 Kan. App. 2d at 850. Here, McCarley was charged with severity level 4 aggravated battery, thus providing jurisdiction for conviction and sentence on the lesser included offense of aggravated reckless battery under both K.S.A. 21-3414(a)(2)(A) and K.S.A. 21-3414(a)(2)(B). See State v. Ochoa, 20 Kan. App. 2d 1014, 1021, 895 P.2d 198 (1995), disapproved in part on other grounds State v. Valentine, 260 Kan. 431, 921 P.2d 770 (1996).
Statutoru Conformance as to Character and Term of Punishment
Was McCarley’s sentence in conformance with K.S.A. 21-3414 as to both its character and term of punishment? McCarley argues on appeal that there was statutory conformance because he was sentenced appropriately for reckless aggravated battery as described generally within K.S.A. 21-3414. The State argues the sentence was not in conformance “with the statute” because McCarley was convicted of aggravated reckless battery under K.S.A. 21-3414(a)(2)(A), but he was sentenced for aggravated reckless battery under K.S.A. 21-3414(a)(2)(B).
Although we acknowledge the distinction, we note that the formal “Record of Trial or Plea” fails to make such a distinction. Moreover, we are convinced that our Supreme Court measures the legality of sentence by general conformance to the statute defining the crime rather than a precise match of severity level to the degree of lesser included offense. See State v. Barnes, 278 Kan. 121, 92 P.3d 578 (2004) (court provides guidelines that seem to require only conformance to K.S.A. 65-4159 generally rather than a match between the sentence and the severity level of the crime of conviction); State v. Phinney, 280 Kan. 394, 399, 122 P.3d 356 (2005) (where defendant argues he can only be sentenced under K.S.A. 65-4152, his sentence under K.S.A. 65-7006 was not an illegal sentence).
Accordingly, for both of these reasons, we conclude that Mc-Carley s sentence generally “conformed” to both the formal record of trial and to the statute defining the crime.
Ambiguity
Finally, there is no question that McCarley’s sentence was not ambiguous in the time or manner in which it was to be served. He was sentenced to 23 months’ incarceration and 12 months’ post-release supervision.
For all these reasons, we disagree with the State that McCarley received an “illegal” sentence. Although there might have been some arguable basis for die State to have received relief under K.S.A. 21-4721(i) for a “clerical error,” the State did not seek relief under this statute nor did it claim in district court or on appeal that the sentence resulted from a “clerical error.” In the absence of any proceedings in district court under this subsection, we decline to determine applicability or potential outcome had this argument been advanced. McCarley’s sentence was not technically “illegal” and the State has not shown any basis for relief under K.S.A. 22-3504.
Was the State Entitled to Seek Modification of McCarley’s Sentence After the State Agreed to Severity Level at Sentencing?
Even if McCarley s sentence was ilegal, McCarley argues that the State’s failure to object to the severity level at sentencing precludes review, relying principally upon Neal v. State, 25 Kan. App. 2d 705, 971 P.2d 748 (1998), rev. denied 266 Kan. 1109 (1999). We characterize the State’s conduct as more than a failure of objection, however, and conclude the State specifically agreed to severity level upon direct inquiry by the court at sentencing. We conclude that the doctrine of invited error precludes any review of the State’s belated chalenge to severity level.
In Neal, a panel of this court stated:
“When the State agrees to a defendant’s criminal history, even if the criminal history is incorrect, the sentence imposed based on that criminal history is not illegal because it is a proper sentence for the agreed upon grid block. Similarly, the State cannot challenge the severity level of petitioner’s crime after so stipulating earlier.” 25 Kan. App. at 705.
This holding was supported by the doctrine of invited error; where a party has by his or her own actions invited the court into error, that party cannot complain or take advantage of it on appeal. See State v. Oliver, 30 Kan. App. 2d 665, 46 P.3d 36 (2002); State v. McBride, 23 Kan. App. 2d 302, 304, 930 P.2d 618 (1996). As noted by McCarley, even if the State had not stipulated to the severity level, its failure to object to the severity level at sentencing would likely have precluded our review in a direct appeal. See K.S.A. 60-404; State v. Kunellis, 276 Kan. 461, 78 P.3d 776 (2003).
Although stipulations as to matters of law may not be binding on the court, this rule has no place in an invited error analysis. When counsel for a party invites the court into an erroneous ruling, it matters not that the ruling was one of law; the doctrine is that having invited the error, the party is estopped to complain. See, e.g., Butler County R.W.D. No. 8 v. Yates, 275 Kan. 291, 296, 64 P.3d 357 (2003) (applying invited error doctrine to bar review of error in jury instruction as to measure of compensation in condemnation proceeding); Wallace v. Wallace, 214 Kan. 344, 520 P.2d 1221 (1974) (applying invited error doctrine to bar review of form of judgment); Sultani v. Bungard, 35 Kan. App. 2d 495, 131 P.3d 1264 (2006) (applying invited error doctrine to bar review of the court’s acceptance of a jury verdict); Schauf v. Schauf, 33 Kan. App. 2d 665, 676-77, 107 P.3d 1237, rev. denied 280 Kan. 984 (2005) (applying invited error doctrine to bar review of dual appointment of master and mediator); Beltz v. Dings, 27 Kan. App. 2d 507, 510, 6 P.3d 424 (2000) (applying invited error doctrine to bar review of evidentiary ruling). In fact, we believe the only exception to the invited error doctrine is when the issue is jurisdiction. See State v. Belcher, 269 Kan. 2, 9, 4 P.3d 1137 (2000). As discussed above, there is no bona fide issue of the trial court’s jurisdiction to sentence McCarley to the severity level 8 crime.
Our conclusion is also consistent with generally recognized prosecutorial discretion. Although prior convictions may not be plea bargained away, the prosecution certainly can enter into pleas that agree not to charge certain crime or that charge crimes that may be a lesser degree or a lesser included offense of what could be a greater crime under the facts. See K.S.A. 21-4713. Unquestionably, the prosecuting attorney is the representative of the State in criminal prosecutions, and he or she controls the prosecution. As the prosecuting attorney, his or her discretion extends to the power to determine who shall be prosecuted and what crimes shall be charged. State v. Williamson, 253 Kan. 163, 165, 853 P.2d 56 (1993). It seems inconsistent to adopt the State’s argument that the trial court lacked jurisdiction to accept the State’s stipulation to a conviction and sentence of a lesser degree of the crime charged at sentencing when the State had the authority to enter into a plea agreement that would have the same effect.
Finally, we note that the State’s agreement to the severity level at time of sentencing bars any appellate review for an additional reason: K.S.A. 21-4721(c)(2) provides that we “shall not” review “any sentence resulting from an agreement between the state and the defendant which the sentencing court approves on the record.” Here there was a clear agreement between the State and the defendant that resulted in a sentence for the severity level 8 crime. We believe this statute also precludes any appellate review of the sentence in any event.
Here, the State clearly and unambiguously informed the district court upon inquiry that the severity level of the crime was properly identified in the PSI, and the court sentenced McCarley accordingly. The actions of the State at time of sentencing preclude any complaint regarding severity level basis for sentencing.
Was McCarley Properly Convicted of a Lesser Included Offense of Aggravated Battery?
On cross-appeal, McCarley argues reckless aggravated batteiy is not a lesser included offense of intentional aggravated battery, and because reckless aggravated battery was not charged in the complaint, the district court lacked jurisdiction to enter the conviction. Our standard of review is unlimited on whether a crime is a lesser included offense, which is a question of law. State v. Hebert, 277 Kan. 61, 104, 82 P.3d 470 (2004).
K.S.A. 2006 Supp. 21-3107(2) provides that a defendant maybe convicted of either the crime charged or a lesser included crime. A lesser included crime is statutorily defined as a lesser degree of the same crime, a crime where all of the elements of the lesser crime are identical to some of the elements of the crime charged, or an attempt to commit the crime charged. K.S.A. 2006 Supp. 21-3107(2)(c), (d).
In order for the jury to convict McCarley of severity level 4 offense of aggravated batteiy under K.S.A. 21-3414(a)(l)(A), the State was required to establish that he “[intentionally caus[ed] great bodily harm to another person or disfigurement of another person.” K.S.A. 21-3201(b) provides: “Intentional conduct is conduct that is purposeful and willful and not accidental. As used in this code, the terms ‘knowing,’ ‘willful,’ ‘purposeful,’ and ‘on purpose’ are included within the term ‘intentional.’ ”
As noted above, the trial court instructed the juiy on severity level 5 aggravated battery under K.S.A. 21-3414(a)(2)(A), as a lesser included offense, which requires “recklessly causing great bodily harm to another person or disfigurement of another person.” K.S.A. 21-3201(c) provides:
“Reckless conduct is conduct done under circumstances that show a realization of the imminence of danger to the person of another and a conscious and unjustifiable disregard of that danger. The terms ‘gross negligence,’ ‘culpable negligence,’ ‘wanton negligence’ and ‘wantonness’ are included within the term ‘recklessness’ as used in this code.”
McCarley’s argument is erroneously based on the holding in State v. Schoonover, 281 Kan. 453, 133 P.3d 48 (2006), and also the claim that lesser included offenses must be based solely on an identity of elements test. We disagree. The legislature has not instituted such a limitation. We will not limit our consideration of lesser included offenses only to the strict elements test. K.S.A. 2006 Supp. 21-3107(2)(a) specifically provides that a lesser included offense is a lesser degree of the same crime. When interpreting statutes, ordinary words are given their ordinary meaning and the legislature’s intent is clear and unambiguous in K.S.A. 2006 Supp. 21-3107(2)(a). See State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
The distinction between aggravated battery as defined in 21-3414(a)(1)(A) and as defined in 21-3414(a)(2)(A) is one of degree of intentionality. Both crimes, however, are proscribed within the same statute, which clearly establishes degrees of the same general crime, that of aggravated battery. It is the function of a jury to decide whether the actions were intentional or reckless and whether the harm was great. See State v. Ochoa, 20 Kan. App. 2d 1014, 1020-21, 895 P.2d 198 (1995), disapproved in part on other grounds State v. Valentine, 260 Kan. 431, 435, 921 P.2d 770 (1996).
We conclude that the district court had jurisdiction to convict McCarley of the lesser included offense of reckless aggravated battery under K.S.A. 21-3414(a)(2)(A).
Did the Trial Court Err in Not Instructing the Jury on Proximate Cause?
Finally, McCarley argues on his cross-appeal that the district court erred when it failed to instruct the jury that his actions had to be the proximate cause of the victim’s injuries to find him guilty of reckless aggravated battery. McCarley suggests the following instruction should have been given: “The fault or lack of fault of [the victim] is a circumstance to be considered along with all the other evidence to determine whether the defendant’s conduct was or was not the direct cause of [the victim’s] injuries.”
The failure to give an instruction is clearly erroneous only if the reviewing court reaches a firm conviction that absent the alleged error there was a real possibility the jury would have returned a different verdict. See State v. Pabst, 273 Kan. 658, 660, 44 P.3d 1230, cert. denied 537 U.S. 959 (2002).
The jury instructions clearly informed the jury that in order to convict McCarley of reckless aggravated battery, he must have “caused great bodily harm or disfigurement” to the victim. (Emphasis added.) We do not find the failure to give a proximate cause jury instruction was clearly erroneous. We are firmly convinced there is no real possibility the jury would have returned a different verdict had the instruction been given. All of the circumstances surrounding the causation of the victim’s injuries were presented to the jury, and the lack of a proximate cause jury instruction would not have changed the outcome.
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Hill, J:
Carl Mack Green was convicted of three counts of identity theft. Since he used only one person’s identity, Green now contends we must overturn two of his convictions because he is being punished three times for the same crime. Because Green used the stolen identity at three different retailers over a 2-day period, we hold his convictions are proper.
Green also appeals his departure sentence, contending the aggravating factors determined by his jury were not compelling and not found in the sentencing statute. Finally, he thinks the jury, not the judge, should have decided his criminal history. Because controlling case law and statutes show Green is wrong, we hold his departure sentence is proper. We affirm.
First we look at the issues raised about the identity theft convictions. Next we list the elements of the crime of identity theft to provide a means to evaluate Green’s acts. Following the review of the facts, we address the double jeopardy — multiple conviction argument Green brings. Finally, our review of the applicable statutes and cases shows why Green’s sentence is proper.
There are many ways to commit identity theft under our statute.
Since the alleged crimes occurred in 2004, Green s identity theft charges are defined by K.S.A. 2004 Supp. 21-4018(a). (The 2005 revisions to the statute do not apply here; c.f., K.S.A. 2005 Supp. 21-4018.) Identity theft is “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. 21-4018(a). Four verbs make up the backbone of the crime: obtaining, possessing, transferring, and using. Those four actions and any attempt to do them comprise the crime of identity theft.
Said in another way, if, in Kansas, a defendant knowingly and with the intent to defraud, uses identity documents with another’s identity, for some economic benefit, that defendant has committed the crime of identity theft. See PIK Crim 3d 62.13. (Economic benefit was changed to any benefit in 2005; L. 2005, ch. 131, sec. 2).
The case history reveals how Green used someone else’s identity.
Carl Mack Green received from an associate another man’s driver’s license number, social security number, birth date, address, bank statements, a credit report printout, and other documents on July 20, 2004. The other man was Alan Kane. Green intended to use the information to buy high-value goods and then sell them for a profit to a prearranged buyer. Using Kane’s name and personal information, Green secured a driver’s license bearing Kane’s name but displaying Green’s picture. Equipped with these documents, Green sought access to credit at three retail establishments.
The next day, Green opened credit accounts in Kane’s name first at a Home Depot store in Missouri and then at a JCPenney store in Merriam, Kansas. He also filled out a credit card application for Wal-Mart using Kane’s name. Shopping day came a day later, on July 22, 2004. Green bought almost $1000 worth of goods at the JCPenney store. On the same day, at the Merriam Home Depot, using the credit account in Kane’s name he had set up the day before, Green tried to buy about $5,500 in goods but was arrested before completing the transaction.
Green was charged with one count of identity theft when he used Kane’s identity to open the JCPenney credit account. He was also charged with one count of identity theft for attempting to use the credit account already opened in Kane’s name at the Home Depot. The third charge of identity theft arose from filling out the Wal-Mart credit account again using Kane’s name. Green was also charged with one count of criminal use of a financial card of another, one count of theft (misdemeanor), and one count of unlawful use of a driver’s license. Kane testified he never gave anyone permission to use his identity. The jury convicted Green on all counts. This appeal deals only with the three identity theft convictions.
Multiple convictions for identity theft proper.
We deal here with the legal doctrine of multiplicity. Multiplicity is charging a single offense in more than one count of a complaint or information; it creates the potential for multiple punishments for a single offense, violating the Double Jeopardy Clause of the Fifth Amendment and § 10 of the Kansas Constitution Bill of Rights. See State v. Harris, 284 Kan. 560, 162 P.3d 28 (2007). Obviously this is a question of law subject to our unlimited review. See State v. Schoonover, 281 Kan. 453, 462, 133 P.3d 48 (2006).
When examining this issue, the Kansas Supreme Court has stated the overarching inquiiy is whether the convictions are for the same offense. “There are two components to this inquiry, both of which must be met for these to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? and (2) By statutory definition are there two offenses or only one?” 281 Kan. at 496. We apply this test to the facts here.
Schoonover teaches us offenses committed separately and severally, at different times and different places, are factors that show an offense did not arise out of a single wrongful act. 281 Kan. at 496-97. Here, Green got the documents and information from his friend one day. He used the information to get a driver’s license with his picture on it. Then, over the next 2 days, used the information to get credit or try to get credit at three different retailers. Certainly Green’s acts are separated by time, distance, and business establishments. We do not think the same conduct produced each conviction, rather each use of the stolen identity led to the convictions. The first part of the Schoonover test is not met here. We turn now to the idea of “unit of prosecution.”
When a double jeopardy issue arises from convictions for multiple violations of a single statute, this court applies the unit of prosecution test. Schoonover, 281 Kan. at 471-72, 497-98. “In a unit of prosecution case, the court asks how the legislature has defined the scope of conduct composing one violation of the statute.” Harris, 284 Kan. at 572. “Under this test, the statutory definition of the crime determines what the legislature intended as the allowable unit of prosecution. There can be only one conviction for each allowable unit of prosecution.” Schoonover, 281 Kan. at 497-98.
Each use of the victim’s identity was unique, and one crime was an attempt to use the identity. K.S.A. 2004 Supp. 21-4018(a) states that identity theft “is 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.” The statutory definition does not compel us to equate these three uses to one crime.
To the contrary, Green wants us to follow the reasoning used by another panel of our court in State v. Meza, 38 Kan. App. 2d 245, 165 P.3d 418 (2007). The Meza court dealt with the 2-year statute of limitations period of K.S.A. 2004 Supp. 21-3106(8) as applied to K.S.A. 2004 Supp. 21-4018(a). Meza, using another woman’s social security card, got a job from a company in Fort Scott and worked there for about 4 years before her discovery. On appeal, Meza argued the statute of limitations began to run when she first used the other woman’s social security card to get a different job in 1998. The Meza court used some vague testimony from a KBI agent to divine legislative intent for identity theft. The panel held: “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.” Meza, 38 Kan. App. 2d at 251. The panel decided it was a continuing crime and therefore Meza’s prosecution was not time barred. 38 Kan. App. 2d at 251-52.
Green interprets Meza to mean the legislature intended for the unit of prosecution to encompass all conduct following the illegal obtaining of a person’s identity information. We are not persuaded Green’s interpretation is correct. In Meza, the innocent person’s social security number was used once to get the job, but Meza continued to cash paychecks. Here, the identity was used at three places at different times, once at JCPenney, once at Home Depot, and once at Wal-Mart.
To judge this argument, two fundamental rules must be recalled and used. K.S.A. 2004 Supp. 21-3106(10) states an offense is committed when every statutory element occurs. That happened here. Every element was fulfilled three times on different days and different locations. A credit account was opened at two stores, and an application for credit was filled out for the third. Further, we must consider if there is a fresh impulse motivating some of the conduct. See Schoonover, 281 Kan. at 497. Obviously each new retail store gave a fresh impulse to Green to use Kane’s identity. Green’s acts did not occur at the same time or at the same location.
The second fundamental rule of law concerns statutory construction. We look first at the words of the law itself to decide its meaning. “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. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Using this rule, the meaning of the legislature appears plain to us. Each time an innocent person’s identity is intentionally used for some fraudulent purpose it is a crime. Each use of another person’s identity is a unit of prosecution for the crime of identity theft. To rule otherwise, we would have to rewrite the statute to ehminate the word “use”.
This interpretation of the statute also makes sense to the person whose identity is taken. Each use of a stolen identity is a blow to the body of credit established by an innocent person. Every use of the innocent’s identity takes something away from that person in this modem age of credit histories and instantaneous commercial transactions. If the legislature did not intend that, it would not have employed the verb “use.”
There was no need for a jury instruction about common scheme here.
As an ancillary issue, Green contends the court should have given a jury instruction about common scheme evidence. He proposed an instruction telling the jury the evidence showed the crimes charged are part of a common scheme and that they could decide, based on the evidence, if there was a common scheme at work here. Offering no authority for such an instruction, the trial court denied Green’s request.
Now Green argues this should have been a question of fact as well as a question of law. He contends the “same conduct” component is a question of fact, needing a jury determination, while the “unit of prosecution” component is a question of law, requiring a decision by a judge. Prior cases say no, this is a question of law for the court.
In Schoonover, the court noted the issue of whether the defendant’s convictions arose from the same conduct was a question of law. 281 Kan. at 498. The Schoonover court relied on State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 (2005), that held whether conduct constitutes multiple acts is a question of law. Since the determination of whether conduct constitutes multiple acts is a question of law, there was no reason to submit to the jury a “common scheme” jury instruction. We see no error here.
The jury’s findings of aggravating sentencingfactors were substantial and compelling.
After the jury’s verdict, the penalty phase of the trial began. The State had moved for an increased sentence on four grounds. First, Green was not amenable to probation. Second, Green had a history of committing new offenses while on probation or parole. Third, Green posed a significant risk to the community. Fourth, Green had a history of fraud convictions that showed his repeated involvement in economic crimes, such as theft, fraudulent use of credit devices, and forgery.
In support of this motion, the State offered the testimony of several witnesses. Green’s probation officer testified Green failed to comply with his probation terms within the first 6 months. Therefore, Green served the rest of his sentence in prison. Green’s presentence investigation report revealed Green was on probation for a misdemeanor offense, on bond for a misdemeanor offense, and on bond for a separate felony offense when these crimes were committed. The arresting officer testified he found a house arrest bracelet on Green’s ankle during his pat-down search. According to the officer, a house arrest bracelet “is a tracking device for subjects who have been released from prison.” The officer noted Green was released 30 days before committing the current offenses.
The jury agreed that all four factors existed beyond a reasonable doubt. In turn, the sentencing court held the jury’s findings were substantial and compelling. This resulted in a 106-month sentence.
In opposition to this increased sentence, Green argues the first and second factors found by the jury must be limited to dispositional departures. In other words, whether he was amenable to probation and had a history of committing crimes while on probation are relevant only to whether he should be placed on probation or imprisoned. Further, he asserts his risk to the community and his record of economic crimes, the third and fourth factors, are already included in the first factor and in his criminal history.
His argument does not persuade us. A sentencing court can rely on a jury’s finding that a defendant is not amenable to probation as a substantial and compelling reason to either increase the duration of a sentence or make a more restrictive disposition of a sentence or both. In State v. Snow, 282 Kan. 323, 345, 144 P.3d 729 (2006), the Kansas Supreme Court recognized that a defendant’s nonamenability to probation can be a substantial and compelling reason to support both an upward durational departure sentence and an upward dispositional departure sentence; see also State v. Yardley, 267 Kan. 37, 43-44, 978 P.2d 886 (1999) (affirming district court’s decision to grant State’s motion for a durational departure sentence based on multiple factors, which included defendant’s nonamenability to probation).
We need not address Green’s remaining challenges to the aggravating factors because the presence of one factor is enough. In State v. Ippert, 268 Kan. 254, Syl. ¶ 2, 995 P.2d 858 (2000), the court said it is not required that all the reasons given by the sentencing court to support the departure sentence be substantial and compelling as long as one or more of the factors relied upon is substantial and compelling.
Green vainly tries to contend K.S.A. 21-4720(c) was unconstitutional here. He did not raise this issue before the trial court; therefore, he cannot bring the matter up for the first time on appeal. See State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). Besides, in Snow, 282 Kan. at 343, the court ruled K.S.A. 21-4720(c) is not applicable to a defendant’s sentence when the district court departed based on aggravating factors found by a jury. That happened here; the jury unanimously made the factual findings that supported his increased sentence. It follows that Green lacks standing to challenge the constitutionality of K.S.A. 21-4720(c). See 282 Kan. at 343 (stating that “defendants . . . for whom a statute is constitutionally applied cannot challenge the constitutionality of the statute on the grounds that the statute may conceivably be applied unconstitutionally in circumstances other than those before the court”).
Green was not deprived of due process because the aggravating sentencing factors are not listed in the statute.
Green challenges the sentencing court’s use of aggravating factors not listed in K.S.A. 2004 Supp. 21-4716(c)(2). He asserts that his due process rights were violated when he was not warned these factors would enhance his sentence. Green asks us to hold that nonstatutory aggravating factors can never cause an increased sentence.
The trouble with Green’s argument is the plain language of the statute clearly says the list contained in it is not exclusive. K.S.A. 2004 Supp. 21-4716(c)(2) states that it provides a “nonexclusive list of aggravating factors” for consideration. Second, the State timely gave specific notice to Green that it planned on using these factors as grounds to increase his sentence. The State cited these four aggravating factors in its motion for upward durational departure on November 23, 2004, and the trial over these aggravating factors did not occur until July 19, 2005. We see no error here.
The criminal history of the defendant is not a jury question.
Finally, Green argues that his Sixth and Fourteenth Amendment rights under the United States Constitution were violated when the trial court increased his sentence based on his criminal history. He contends that under Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the sentencing court should have required his criminal history to be proved beyond a reasonable doubt to a jury.
Green admits the Kansas Supreme Court has previously rejected this argument in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002), which stated that Apprendi does not apply where sentence was based on defendant’s criminal history score. We see no sign that our Supreme Court intends to change its stance, and we are duty bound to follow its ruling. See State v. Storey, 37 Kan. App. 2d 555, 562, 154 P.3d 1148 (2007).
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Marquardt, J.:
First Christian Church of Olathe, Kansas (First Christian), Janis M. Waleski Murphy, and Mary Helen Moeller appeal the trial court’s grant of summary judgment to the Estate of Ethel F. Draper (Estate). We reverse.
In April 1967, Clark Draper and Ethel Catlin executed an antenuptial agreement in contemplation of their marriage. Clark had three children from an earlier marriage; Ethel had no children. The antenuptial agreement stated that both Clark and Ethel had “substantial property and property rights” and if Ethel survived Clark, Ethel was required to maintain a valid will devising to each of Clark’s sons not less than one-fourth of her estate. Clark executed a will leaving a substantial portion of his estate to Ethel should she survive him.
Clark died testate in January 1977 and Ethel received her share of his estate. In September 1977, Ethel executed an irrevocable trust whose successor trustee is UMB Bank, N.A. (UMB). This trust allowed Ethel to receive the income and corpus during her lifetime. Upon her death, the trust income and corpus were to be distributed to, among others: First Christian, The Kansas City Chapter of the American Cancer Society (American Cancer Society), Olathe Medical Center, Mary Helen Moeller, and Janis Waleski Murphy.
In April 1982, Ethel executed a will which divided her estate equally between Clark’s three sons. That same day, Ethel created another irrevocable trust whose successor trustee is Bank of America. The remainder beneficiaries of this trust are identical to those listed in the 1977 UMB trust.
Ethel died in October 2002 leaving an estate of less than $10,000. The total assets in the two irrevocable trusts exceeded $1 million. Ethel’s will was admitted to probate in January 2003.
In December 2003, Clark’s son, Gerald, executor of Ethel’s estate, filed a petition on behalf of the Estate against Bank of America and UMB claiming that Ethel exceeded the authority given her in the antenuptial agreement when she transferred the bulk of her assets to irrevocable trusts. The petition contends that the trust beneficiaries have a duty to transfer three-quarters of the trust assets back into the Estate. The petition claimed intentional fraud, implied fraud, breach of contract, and breach of fiduciary duty. In May 2004, the petition was amended to add the trust beneficiaries as defendants.
The American Cancer Society’s answer to tire petition claimed that the Estate’s action was barred by the statutes of limitation and repose in K.S.A. 60-515, K.S.A. 60-511, and K.S.A. 60-513. The American Cancer Society filed a motion to dismiss based on these statutes. Eventually the other named defendants joined in this motion.
The Estate’s response to the motion to dismiss was that none of the statutes cited could apply to the Estate, which exists as a separate entity from Ethel herself. The trial court agreed with the Estate and denied the motion to dismiss.
The Estate, First Christian, Waleski Murphy, and Moeller all filed motions for summary judgment. After considering arguments from counsel, the trial court concluded that the antenuptial agreement contained an implied duty which prevented Ethel from divesting Clark’s sons of their share of the trust assets. The trial court determined that the antenuptial agreement created a life estate for Ethel in the marital property.
The trial court ruled that Ethel’s transfers to the irrevocable trusts were void because the transfers of property out of her life estate exceeded her authority. The trial court granted the Estate’s summary judgment motion and ordered that the trust property be placed in a constructive trust for Clark’s sons. The other motions for summary judgment were denied. The American Cancer Society and Olathe Medical Center setded their claims and are not parties to this appeal. UMB and Bank of America are parties only to the extent that they administer the trusts. First Christian, Waleski Murphy, and Moeller appeal the trial court’s decision.
On appeal, First Christian contends (1) that the trial court erred in ordering a constructive trust in favor of the Estate on the assets of the irrevocable trusts because it did not make a finding of fraud; (2) that K.S.A. 60-515 bars the action since it was commenced more than 1 year after Ethel’s death; and (3) that Clark’s sons knew of Ethel’s trusts as early as 1985, which would bar the Estate’s claims pursuant to the statute of repose. Waleski Murphy and Moeller argue that the cause of action accrued in 1977 when Ethel first transferred assets into an irrevocable trust.
All of the Estate’s claims involve interpretation of the antenuptial agreement and Ethel’s action.
When a motion to dismiss raises an issue concerning the legal sufficiency of a claim, the question must be decided from the facts pled in the petition. Disputed issues of fact cannot be resolved or determined on a motion to dismiss for failure of the petition to state a claim upon which relief can be granted. The question is whether, in the light most favorable to plaintiff, and with every doubt resolved in plaintiff s favor, the petition states a valid claim for relief. Dismissal is justified only when the allegations of the petition clearly demonstrate plaintiff does not have a claim. Halley v. Barnabe, 271 Kan. 652, 656, 24 P.3d 140 (2001).
First Christian argues that the trial court erred by imposing a constructive trust on the irrevocable trust assets because the Estate cannot prove that Ethel committed constructive fraud. It claims she breached no legal duty.
Constructive fraud requires two elements beyond that of actual fraud. First, there must be a confidential relationship and second, that confidence must have been betrayed or a duty imposed by the relationship breached. Kiley v. Petsmart, Inc., 32 Kan. App. 2d 228, 235, 80 P.3d 1179 (2003), rev. denied 277 Kan. 924 (2004). A “confidential relationship” refers to any relationship of blood, business, friendship, or association in which one of the parties reposes special trust and confidence in the other who is in a position to have and exercise influence over the first party. Heck v. Archer, 23 Kan. App. 2d 57, 63, 927 P.2d 495 (1996). The mere relationship between parent and child does not raise a presumption of a confidential and fiduciary relationship. Curtis v. Freden, 224 Kan. 646, 651, 585 P.2d 993 (1978). For purposes of imposing a constructive trust, a confidential relationship can be based on an agreement between the owner of property and another who will distribute the owner’s property in a specified manner upon the owner’s death. Heck, 23 Kan. App. 2d at 67.
The existence or nonexistence of a confidential or fiduciary relationship is an evidentiary question or finding of fact which must be determined from the facts in each case; and, therefore, the scope of appellate review is to ascertain only whether there is sub stantial competent evidence to support the finding of the trial court. In re Estate of Relihan, 4 Kan. App. 2d 277, 279, 604 P.2d 1219, rev. denied 227 Kan. 927 (1980). A confidential relationship is not presumed, and the burden of proving such a relationship existed rests upon the party asserting its existence. Kampschroeder v. Kampschroeder, 20 Kan. App. 2d 361, 365, 887 P.2d 1152, rev. denied 257 Kan. 1092 (1995).
The Estate never claimed there was a confidential relationship, and the trial court made no such finding. There was no proof of a confidential relationship between any of the parties. Where a confidential relationship has not been proved or even asserted, there can be no constructive trust.
In its decision, the trial court stated that it was required to read the four comers of the antenuptial agreement in order to ascertain the intent of the parties. To that end, the trial court was willing to “imply a duty” to Ethel to “refrain from divesting Clark’s sons of their share of her estate,” thereby “frustrating Clark’s obvious intent” in signing the antenuptial agreement. Therefore, the trial court ruled that “the antenuptial must be interpreted as creating in Ethel a life estate in the marital property,” and a life estate prevented Ethel from designating the residual beneficiaries in her irrevocable trusts.
On appeal, First Christian argues that the antenuptial agreement required Ethel to leave three-quarters of her estate to Clark’s sons, not three-quarters of her assets. First Christian suggests that the use of the term “estate” rather than “assets” shows a deliberate choice by the parties. In addition, First Christian believes the trial court exceeded the plain language of the antenuptial agreement, where there is no mention of a life estate.
The interpretation and legal effect of written instruments are matters of law, and an appellate court exercises unlimited review. McGinley v. Bank of America, N.A., 279 Kan. 426, 431, 109 P.3d 1146 (2005). Regardless of the construction given a written contract by the trial court, an appellate court may construe a written contract and determine its legal effect. Unrau v. Kidron Bethel Retirement Services, Inc., 271 Kan. 743, 763, 27 P.3d 1 (2001).
If the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction. Where contract terms are plain and unambiguous, the intention of the parties and the meaning of the contract are determined from the contract itself. Zukel v. Great West Managers, LLC, 31 Kan. App. 2d 1098, 1101, 78 P.3d 480 (2003), rev. denied 277 Kan. 928 (2004). Unambiguous contracts must be enforced according to their plain, general, and common meaning in order to ensure the intentions of the parties are enforced. When a contract is found to be unambiguous, we look only to the four comers of the agreement to determine the parties’ intent, harmonizing the language therein if possible. Boos v. National Fed’n of State High School Ass’ns, 20 Kan. App. 2d 517, 524, 889 P.2d 797 (1995).
The antenuptial agreement required Ethel to execute and maintain a valid will. Ethel did that. The antenuptial agreement required Ethel to leave “not less than one fourth” of her estate “remaining after the payment of debts, administrative expenses, taxes and other legal obligations thereof,” to each of Clark’s sons. Ethel did that; in fact, Ethel left her entire estate to Clark’s sons.
The antenuptial agreement is unambiguous. It contains no restrictions on Ethel gifting or inter vivos transfers of her property, and there is nothing in the language of the antenuptial agreement which restricts Ethel from creating irrevocable tmsts.
The antenuptial agreement was executed in 1967. Forty years later, with both Clark and Ethel deceased, the trial court must abide by the clear language of the antenuptial agreement. There is no suggestion that Ethel’s ownership rights were limited to a life estate. Ethel complied with the clear language of the antenuptial agreement and is not in breach of that contract. Therefore, the trial court erred by imposing a life estate on Ethel’s property ownership.
The trial court read into the antenuptial agreement a duty of good faith and fair dealing. The trial court tiren extended this duty to prevent Ethel from “divesting Clark’s sons of their share of her estate and frustrating Clark’s obvious intent in making the contract.”
Kansas courts imply a duty of good faith and fair dealing in every contract. Parties shall not intentionally and purposely do anything to prevent the other party from carrying out his or her part of the agreement, or do anything which will have the effect of destroying or injuring the right of the other party to receive the fruits of the contract. Kansas Baptist Convention v. Mesa Operating Limited Partnership, 253 Kan. 717, 725, 864 P.2d 204 (1993).
It is clear that all three of Clark’s sons received “the fruits of the contract;” they split the entirety of Ethel’s estate. The trial court erred by reading into the contract something which was not there and by implying that Ethel acted with bad faith. Therefore, the trial court erred by imposing limits on Ethel’s rights to dispose of her assets during her lifetime.
Waleski Murphy and Moeller argue that the Estate’s claims are time-barred due to the failure of one of the heirs to file a claim against Ethel’s estate pursuant to K.S.A. 59-2239.
Resolution of this matter requires us to interpret the meaning of K.S.A. 59-2239. Interpretation of a statute is a question of law, and this court has de novo authority to review the trial court’s decision. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
K.S.A. 59-2239 requires all creditors to make demands against the estate within 4 months from the date of first publication of the notice. However, in this case, none of Clark’s sons was disputing what was contained in the Estate. The entire purpose of this action is to collect assets which are outside of the Estate in Ethel’s irrevocable trust. Therefore, any action against the Estate would have been futile, and compliance with K.S.A. 59-2239 is wholly unrelated to this action.
Waleski Murphy and Moeller claim that there is no statutory authority which allows the estate to bring an action for possession of the assets of an irrevocable trust, because the Estate had no standing to enforce the terms of the antenuptial agreement, as only Clark, Ethel, and Clark’s sons were so authorized by the terms of the agreement.
The antenuptial agreement shows that only Clark, Ethel, and Clark’s sons are parties to the agreement. We reject the theory that an estate could never marshal assets which have been placed in an irrevocable trust. However, we agree that under these circum stances and the provisions of this antenuptial agreement, diere is nothing in the plain language of the agreement which allows EtheFs assets to be returned to the Estate.
Given our interpretation of the antenuptial agreement, First Christian’s arguments regarding the trial court’s ruling on the statutes of limitation and repose are moot.
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Greene, J.:
Eric Eugene Hall appeals the district court’s decision to revoke his probation, arguing the court lacked jurisdiction due to the unreasonable delay by the State in prosecuting its motion to revoke. We agree with Hall and reverse the district court.
Factual and Procedural Background
On August 26, 1998, Hall pled no contest to one count of aggravated battery and was thereafter sentenced to an underlying prison term of 12 months, with 36 months’ probation. On June 23, 1999, the State filed a motion to revoke Hall’s probation, alleging among other violations that Hall had been convicted of two counts of felony aggravated robbery on June 3, 1999, in Saline County. The Saline County charges resulted in Hall’s imprisonment for 78 months, or until July 2005.
A bench warrant for Hall’s arrest was issued in McPherson County in June 1999 but never executed during Hall’s imprisonment on the Saline County conviction. Although the State claims through an appended affidavit to its brief on appeal that a detainer was lodged for Hall on November 17, 1999, neither the detainer itself nor the affidavit can be located in the record on appeal. The record contains copies of two letters from Hall to the district judge, however, referring to the detainer and requesting resolution of the pending revocation matter in McPherson County.
The first letter was dated February 10, 2002, and indicated that the unresolved detainer from McPherson County rendered Hall ineligible for reintegration and work release programs:
“I still have two more recommended programs to complete: pre-release reintegration program, and then work release. But these last two programs require minimum custody classification. I currently have medium custody and now cannot receive my minimum custody until resolving my detainer on case #980CR-155. Each of the two remaining programs are ten mo. to complete, which is another total of 20 mo. My release date is set for 9-13-2004 which is another 31 mo. So I have 11 mo. now to resolve this detainer. So the defendant now moves and requests this court to appoint counsel over this matter . . . and allow me to proceed in forma pauperis.”
Following this letter, an order to transport Hall back to McPherson County was drafted by the district attorney, executed by the district court, and filed on March 27, 2002, but neither the record nor the appellate briefs indicate what became of this order. There is no indication that Hall was ever made aware of the order, and counsel admitted at oral argument that there was no compliance with this order.
Hall’s second letter was dated July 6, 2004, and again sought resolution of the pending detainer and probation revocation matter.
“Since [August 4, 1999] I’ve been trying to get this issue of violation of my conditions of probation on case no. 99-CR-155 taken care of. I took the route of trying to file a 180 day writ on this detainer, but was informed that such actions are not admissible for probation violations. So I’m seeking relief by submitting this letter.
“. . . I would like to know if I am going to have to do more time or what . . . [to] get this matter resolved.”
Hall then cites Kansas case law for the principle that “appeal courts frown on the fact that the courts should not take such lengthy time to hold such a hearing.” He ends his letter with a request that the district court “get me back in your court room and hold this revocation hearing before my release.” The record is silent as to any further McPherson County proceedings until Hall had served his sentence in the Saline County matter.
On July 18, 2005, after completion of his sentence for the Saline County matter, Hall was arrested pursuant to the bench warrant for the McPherson County matter. At a hearing on the State’s motion to revoke probation, Hall moved for dismissal, arguing that the court had no jurisdiction due to the delay by the State in prosecuting the motion, citing State v. Grimsley, 15 Kan. App. 2d 441, 808 P.2d 1387 (1991). The judge rejected Hall’s argument, stating in material part:
“[T]he issue becomes one of whether or not the State is obligated to bring the defendant back while he is in prison to do the motion to revoke probation. I have not yet seen a case that speaks to that issue when it’s in court. However, I agree with the State that the issues normally raised on failure to grant a speedy trial, so forth, or a detainer claim filed by a defendant is not applicable because it doesn’t go to the issue of sentencing or speedy trial or any of those issues. They’ve already been sentenced. I’ve always proceeded under the assumption the State does not have that duty that they can simply wait until they’re discharged, although I think the better practice is to bring them back, but that’s not my call. Until the Supreme Court tells me they have to bring them back when they’re in prison I don’t feel it has application.”
The district court then revoked Hall’s probation and ordered him to serve the original 12-month sentence. Hall timely appeals.
Standard of Review
Appellate courts review the revocation of a defendant’s probation under the abuse of discretion standard. State v. Walker, 260 Kan. 803, 808, 926 P.2d 218 (1996). Judicial discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Williams, 268 Kan. 1, 8, 988 P.2d 722 (1999). Whether jurisdiction exists over such a matter is a question of law over which this court’s scope of review is unlimited. State v. Rocha, 30 Kan. App. 2d 817, 819, 48 P.3d 683 (2002).
Did the District Court Have Jurisdiction to Revoke Hall’s Probation Given the Delay During His Incarceration on Other Charges?
The question framed by this appeal requires that we construe both a statutory mandate and that we apply constitutionally based due process considerations. The governing statute is K.S.A. 2006 Supp. 22-3716(b), which provides that “upon an arrest by warrant . . . the court shall cause the defendant to be brought before it without unnecessary delay for a hearing on the violation charged.” Determining whether inaction constitutes an unnecessary delay depends upon the circumstances of each case. Toman v. State, 213 Kan. 857, 860, 518 P.2d 502 (1974).
The Due Process Clause of the Fourteenth Amendment to the United States Constitution limits procedurally and substantively the ability of the State to revoke a probationer’s probation. A district court may revoke probation even if the term of revocation has expired as long as “the proceedings were instituted during the term of the probation and the revocation occurs within a reasonable time thereafter. [Citation omitted.]” The court’s jurisdiction to act, however, is “not without limit.” State v. Haines, 30 Kan. App. 2d 110, 112, 39 P.3d 95, rev. denied 273 Kan. 1038 (2002). Clearly, the State is required to proceed in a timely and reasonable manner in order to meet the requirements of due process. See 30 Kan. App. 2d at 112. An unreasonable delay by the State in the issuance and execution of a warrant for the arrest of a probationer whose where-about are either known or ascertainable with reasonable diligence may result in the State’s waiver of the violation and entitle the defendant to discharge. Haines, 30 Kan. App. 2d at 112-13.
The unique issue framed herein is whether the State may be charged with unreasonable delay in such matters when the defendant is serving time on an unrelated conviction from another county. As noted by the district court, there does not seem to be any Kansas case law addressing this precise issue. Hall argues that the Haines waiver doctrine should apply due to the State’s failure to resolve its revocation motion on a timely basis. The State relies on State v. Nicholson, 243 Kan. 747, 763 P.2d 616 (1988), in arguing that the failure to execute the bench warrant was caused by Hall’s incarceration in another county and should not be seen as unreasonable delay.
Nicholson is instructive but not controlling here. In Nicholson, the defendant sought dismissal under the statute of limitations, claiming an unreasonable delay in executing a warrant because it had not been served for over 2 years. During that 2-year period, the accused was in the custody of the Kansas State Industrial Reformatory (KSIR). Although the State had not executed the warrant by arresting the accused, within 3 months of issuing the warrant, it notified KSIR of the existence of a warrant and requested that a detainer be placed on the accused if he was in custody there. Shortly after KSIR received the detainer request, it notified the accused of the detainer. Noting that the statutory definition for arrest is “the taking of a person into custody,” (see K.S.A. 22-2202[4]) the Nicholson court held that the State was not expected to execute the warrant by arresting the defendant when he was already in custody, noting that a person already in custody cannot be arrested. 243 Kan. at 749-50. For these reasons, the court held that there had been no unreasonable delay in executing the warrant. 243 Kan. at 750-51.
We distinguish Nicholson for several reasons: (i) Determining whether delay in executing an arrest warrant should toll the applicable statute of limitations requires a different analysis from determining whether there has been a due process deprivation in the case of prosecution delay in revoking probation; (ii) Nicholson had available to him the right to dispose of his detainer through the Uniform Mandatory Disposition of Detainers Act, K.S.A. 22-4301 et seq., but made no attempt to do so; here that Act has no application; (iii) the court’s decision in Nicholson was explicitly based upon construction of statutes that have no specific application or relevance herein, specifically K.S.A. 1987 Supp. 21-3106(3), K.S.A. 22-2202(4), and K.S.A. 22-2305; (iv) although impossible to arrest someone already in custody, it is quite possible to transport someone in custody to another county to answer charges there; and (v) the State has offered no explanation or excuse whatsoever for the noncompliance with the district court’s order to transport Hall to McPherson County on March 27, 2002.
Despite no Kansas case law addressing these precise circumstances, we note the case law from other jurisdictions upon which this court relied in Haines, 30 Kan. App. 2d at 113, addressed the precise issue herein; these cases seem to require that a defendant be brought before the tribunal on revocation proceedings as long as his or her whereabouts is known, even if those whereabouts for some or all of the period at issue are in confinement on other convictions. See People v. Diamond, 59 Mich. App. 581, 588, 229 N.W.2d 857 (1975); State v. Murray, 81 N.M. 445, 449, 468 P.2d 416 (1970). The federal courts seem to be split on this question when framed in the context of federal parole violations. Compare Gaddy v. Michael, 519 F.2d 669 (4th Cir. 1975), and Fitzgerald v. Sigler, 372 F. Supp. 889 (D.D.C. 1974), to Cook v. United States Attorney General, 488 F.2d 667 (5th Cir. 1974). Particularly because the Uniform Mandatory Disposition of Detainers Act does not apply here, we embrace the rationale of those cases that formed the conceptual underpinning for this court’s decision in Haines.
Our court has held that the defendant has no obligation to show prejudice by reason of a delay under these circumstances because the State is deemed to have waived the violation. See, e.g., Haines, 30 Kan. App. 2d at 113. Other courts have indicated that proper considerations in determining deprivation of due process in these circumstances include: (i) the impact of the delay on the defendant’s ability to prepare a defense to the revocation proceedings; (ii) any other potential prejudice of delay in resolving the pending detainer; and (iii) the emotional harm or anxiety of the uncertainty of outcome and consequences for the pending violation. See, generally, Gaddy, 519 F.2d at 672-73. Although Hall can show no prejudice to his defense because the probation violation is established by reason of the conviction, other considerations weigh in Hall’s favor: (i) the 6-year delay affected his custody status and may have denied his eligibility for rehabilitation programs during his period of incarceration and (ii) the delay apparently caused him some degree of emotional anxiety, as evidenced by his correspondence to the district court. Accordingly, even though a showing of prejudice may not be required, actual prejudice demonstrated by Hall supports our conclusion that the State should be barred by reason of the delay.
Considering the facts before us and specifically due to: (i) the State’s inability to explain the delay; (ii) the fact that Hall could have been transported to McPherson County for revocation proceedings during his incarceration on the Saline County conviction; (iii) Hall’s unanswered correspondence requesting timely resolution of the revocation motion; (iv) the failure of the State to comply with the district court’s order to transport Hall back to McPherson County to resolve this matter; (v) the potential prejudice to Hall of the unresolved detainer and its impact on program eligibility during his incarceration; and (vi) the emotional anxiety of waiting 6 years to learn of the outcome of a revocation motion, we hold that Hall’s due process rights were violated by the 6-year delay and the State must be barred from its belated efforts to prosecute the revocation motion.
Reversed and remanded with directions to discharge the defendant. | [
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McAnany, J.:
This appeal arises from the district court’s grant of summary judgment in favor of Stanley Bank (or Bank), the lender of funds for a residential construction project, and against Linden Place, L.L.C., the owner of the property upon which the residences were constructed. In the motion the Bank challenged the existence of any fiduciary duly owed to Linden Place under facts it claimed to be uncontroverted. It did not challenge the issue of causation. However, it did challenge Linden Place’s tortious interference claim.
The peculiar facts of this case present the possibility of a fiduciary relationship during only the briefest of times. Since no issue of causation is raised, we do not address whether there is any evidence of Linden Place sustaining damages during that brief time. Nevertheless, we conclude that because there remains a genuine issue of the material fact out of which Linden Place predicates the existence of a fiduciary relationship, the issue was not appropriate for summary judgment.
With respect to Linden Place’s claim of tortious interference, we conclude that the district court did not err in granting summary judgment in favor of Stanley Bank.
Facts
In our de novo consideration of Stanley Bank’s summary judgment motion, we consider the facts and the reasonable inferences that can be drawn from those facts in the light most favoring Linden Place, the party against whom summary judgment was sought. White v. J.D. Reece Co., 29 Kan. App. 2d 226, 26 P.3d 701 (2001). Accordingly, we will recount the facts in that light.
Linden Place, L.L.C., is the owner and developer of the Linden Place subdivision, a residential subdivision in southern Overland Park. Scott Harder and Michael Healey are principals in Linden Place. M&I Bank apparently provided financing to Linden Place for development of the subdivision. Steve Morris is the senior vice president of M&I Bank.
Linden Place entered into negotiations with Williams Building & Development Corporation for the purchase of lots in the subdivision. In July 2004, Williams was replaced by Linden Place Villa Homes, L.L.C., through an assignment. Nevertheless, to avoid confusion, we will refer to these entities as Williams.
Williams was a customer of Stanley Bank. Prior to Williams’ purchase of the lots in question, Morris, on behalf of Linden Place, called Walt Dotson, executive vice president of Stanley Bank, to determine the reliability and economic viability of Williams. Dotson assured Morris that Williams had the capability and funding to complete construction of houses on the lots. Further, Williams advised Dotson at the outset that the owner of the subdivision had agreed to subordinate its interest in the lots. Thus, the Stanley Bank was aware of Linden Place’s subordinated interest in the lots Williams was negotiating to purchase.
On March 29, 2004, Williams agreed to purchase from Linden Place 28 undeveloped lots in the subdivision at prices which ranged from $79,900 to $133,900 per lot. Williams agreed to build model homes on lots 2, 3, and 20. Lot 2 cost $79,900, lot 3 cost $94,900, and lot 20 cost $102,900. The model homes were not to be sold immediately to recoup the cost of their construction and the cost of the land, but rather were to be held for inspection by prospective purchasers of other lots in the subdivision. Williams was required to close on the purchase of these three lots within 1 year. Linden Place agreed to subordinate its fee interest in these lots to mortgages to be held by Williams’ construction lender in order to permit Williams to finance construction. The subordination agreement was intended to give Williams’ lender priority over the fee interest of Linden Place in the lots when houses built on the lots were sold or in the event Williams defaulted and foreclosure was necessary. It was anticipated that when the model homes were sold, the sale proceeds would be used first to satisfy the loan from the construction lender and then to pay Linden Place for the cost of the lots before disbursement of the net profits to Williams.
On April 2, 2004, a few days after the sales agreement between Linden Place and Williams, Stanley Bank made three construction loans to Williams for construction of the model homes. Each loan was evidenced by a separate promissory note and secured by a security agreement and a mortgage from Williams on the particular lot. The loan for construction of the model home on lot 2 was in the sum of $377,000. Through a later second note this loan was increased by $65,000. The note indicated that the purpose of the loan was for construction of a spec home, and the note was to be repaid with the proceeds from the sale of the home. The loans for construction of the model homes on lots 3 and 20 contained similar provisions and were in the sum of $366,000 each. There is no indication that Williams provided any security for the loans other than the mortgage on each property. Timothy C. Williams and Scott Walker were personally obligated on the notes, but there is nothing in the record to indicate they provided any additional collateral to secure their obligations.
Plarder learned from an associate of Williams that Williams was not using all of Stanley Bank’s construction loan proceeds for construction on the three Linden Place lots, but was using the funds to pay other obligations. He was concerned that the Bank’s loan advances would subsume the entire value of the properties, leaving nothing for Linden Place for the purchase of its lots. In the second week of October 2004, Harder met with Dotson at the Stanley Bank and expressed these concerns. Dotson told Harder he would investigate the matter and report back shortly. Dotson acknowl edged in a later affidavit that at this meeting he had refused to disclose any information to Harder regarding the disbursement of loan proceeds without Williams’ consent.
Two days later Harder contacted Dotson again, and Dotson assured Harder that he had looked into the matter and was handling it. He told Harder not to be alarmed about the situation and that expenditures would be monitored carefully in the future.
Shortly thereafter Harder learned of additional improper expenditures by Williams. He contacted Dotson to alert him to the ongoing misuse of loan proceeds. Harder also contacted Joe Jackson, the president of Stanley Bank, during the first week of November 2004. He reiterated his concerns to Jackson, who thanked Harder for bringing the matter to his attention and assured Harder that he would look into the matter and report back shortly. When Harder called Jackson again the next day, Jackson advised that he had no further comment on the matter and was now represented by counsel.
Linden Place initiated this action on May 16, 2005, against Stanley Bank for breach of fiduciary duty and tortious interference with existing contractual relations. On May 26, 2005, lot 2 was sold. Linden Place did not receive any of the proceeds to apply to the purchase price of the lot.
Stanley Bank moved for summaxy judgment. At the hearing on the motion, the court was informed that a contract for the sale of lot 20 was pending; lot 3 remained unsold; and Stanley Bank had recently initiated foreclosure proceedings, apparently on lot 3. Following the hearing the district court sustained the motion, finding no fiduciary relationship between Linden Place and Stanley Bank but making no findings with respect to the tortious interference claim. Nevertheless, the court’s journal entry indicates that summary judgment was granted on all of the claims asserted by Linden Place.
Linden Place appeals.
Breach of Fiduciary Duty
The parties are well acquainted with the fact that summary judgment is appropxiate only when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 60-256(c). In considering this appeal, we stand in the shoes of the district court and consider the motion de novo. Associated Wholesale Grocers, Inc. v. Americold Corp., 261 Kan. 806, 820, 934 P.2d 65 (1997). As noted earlier, our review of the evidence is in the light most favoring Linden Place, the party against whom summary judgment was sought. Further, in determining whether there exists a genuine issue of material fact we consider not only the evidence but the reasonable inference that may be drawn from the evidence.
Stanley Bank relies upon the clear and convincing evidence standard as the controlling standard for our review. While this standard ultimately may apply at trial, it does not apply at the summary judgment stage. To overcome summary judgment the existence of a genuine issue of material fact need not be established by clear and convincing evidence. See Rebarchek v. Farmers Co-op Elevator & Mercantile Ass’n, 272 Kan. 546, 551-52, 35 P.3d 892 (2001).
Linden Place claims the district court erred in failing to recognize the existence of a fiduciary relationship between Linden Place and Stanley Bank. As stated in Reebles, Inc. v. Bank of America, N.A., 29 Kan. App. 2d 205, 208-09, 25 P.3d 871 (2001):
“A fiduciary relationship exists where there has been a special confidence reposed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interests of the one reposing the confidence. Ford v. Guarantee Abstract & Title Co., 220 Kan. 244, 553 P.2d 254 (1976). Whether a fiduciary relationship exists depends on the facts and circumstances of each individual case. The Kansas Supreme Court has refused for that reason to give an exact definition to fiduciary relationships. See Denison State Bank v. Madeira, 230 Kan. 684, Syl. ¶ 2, 640 P.2d 1235, modified on reh. 230 Kan. 815, 640 P.2d 1235 (1982).
“Generally, there are two types of fiduciary relationships: (1) those specifically created by contract or by formal legal proceedings and (2) those implied in law due to the factual situation surrounding the involved transactions and the relationship of the parties to each other and to the questioned transactions. The determination of the existence of a fiduciary relationship in the second category is more difficult to determine. Denison State Bank, 230 Kan. at 691.”
There is no contract or formal proceedings creating any fiduciary relationship between Linden Place and Stanley Bank. Accordingly, we must consider whether there are facts out of which a fiduciary duty may arise if those facts are established later at trial. That consideration discloses an extraordinarily close question. We are aware of the cautionary language of Denison regarding the reasonable diligence one must exercise for one’s own protection, and the danger of turning ordinary business transactions into fiduciary relationships. As the Denison court points out, “one may not abandon all caution and responsibility for his own protection and unilaterally impose a fiduciary relationship on another without a conscious assumption of such duties by the one sought to be held liable as a fiduciary.” Denison State Bank v. Madeira, 230 Kan. 684, 696, 640 P.2d 1235 (1982). Nevertheless, there are features of Denison that distinguish it from the facts now before us and which render those cautions inapplicable.
First among those distinctions is the fact that Denison was reviewed after a jury trial, not the entiy of summary judgment. In Denison the defendant, the prospective buyer of an auto dealership, claimed the seller’s bank failed to disclose the fact that the bank was a major creditor of the dealership. The court found that the bank did not misrepresent any facts regarding its relationship with the auto dealership, but simply failed to disclose information about which the defendant failed to ask. Further, the information defendant claimed was withheld was found in financial records of the auto dealership to which the buyer had access.
In the case before us, Linden Place did not have access to information regarding Williams’ use of the construction loan proceeds. It only knew that construction was not progressing on the lots as promised. Information regarding use of the loan proceeds was within die knowledge of Stanley Bank, and the Bank refused to disclose that information to Linden Place when asked. Ratiier, Dotson, on behalf of the Bank, told Harder that he would investigate the matter and report back shortly. Two days later Dotson assured Harder that he had looked into the matter and was handling it. He told Harder not to be alarmed about the situation and that expenditures would be monitored carefully in the future. During the first week of November 2004, Bank President Jackson also assured Harder that the Bank was looking into the matter. It was the following day that Jackson advised that he had no further comment on the matter. Under the version of the facts we use for purposes of summary judgment, rather than abandoning all caution and responsibility for its own protection, Linden Place sought out the Bank, the only entity in a position to verify malfeasance by Williams and to do something about it. Stanley Bank was aware of Linden Place’s perilous position, having subordinated its fee title to the Bank’s construction loans. The clear purpose of Dotson’s-statement to Harder, if true, was to instill in Linden Place the belief that any malfeasance by Williams was being looked into and steps were being taken to prevent any further actions by Williams which would undermine Linden Place’s subordinated position. Rather than placing Linden Place at arm’s length, as Jackson ultimately did in November, Dotson voluntarily undertook to protect Linden Place’s subordinated position.
In Dugan v. First Nat’l. Bank in Wichita, 227 Kan. 201, 606 P.2d 1009 (1980), Dugan owned a tract of ground which was subject to an 87-year lease. Dugan agreed to subordinate her fee interest to enable her tenant to obtain a construction loan for improvements on the property, with the understanding that the cost of the improvements would exceed $275,000. She banked with First National Bank, the lender for the construction project. Dugan later learned that part of the construction loan proceeds was used to pay unrelated debts of the tenant, not the cost of improvements on the leasehold. Dugan sued the bank on various theories, including breach of fiduciary duty. In finding no fiduciary relationship, the court noted that Dugan had had no discussion with any bank officer regarding the construction project. Further, the general rule is that the relationship between a bank and its depositor is a debtor-creditor relationship, not a fiduciary relationship. A fiduciary relationship may arise, however, in situations in which “the bank had dealt directly with the customer regarding the matters involved in the litigation, and the bank had knowledge of the reliance and confidence of the customer; in some instances the bank stood to profit from non-disclosure to the customer.” 227 Kan. at 208.
There was no evidence that Dugan relied upon any statements by the bank regarding disbursements of loan proceeds. However, in the case now before us, there is evidence, which we must accept for purposes of Stanley Bank’s summary judgment motion, that Linden Place, though not a customer of the Bank, was told by its executive vice president that Linden Place should not be alarmed about the situation and that expenditures would be monitored carefully in the future.
There is conflicting evidence regarding the communications between Linden Place and Stanley Bank which bear upon the relationship between these parties. Clearly Stanley Bank had no fiduciary duty to Linden Place at the outset of the loan. The Bank had no obligation to monitor for Linden Place’s benefit its periodic disbursement of loan proceeds at the outset of the transaction. There was no contact between Linden Place and Stanley Bank regarding the disbursement of loan proceeds until the second week of October 2004. Dotson’s statements at that time, that the Bank was looking into the issue of loan disbursements, did not impose upon the Bank a duty to Linden Place. A reasonable person could not conclude, from those remarks, that the Bank was undertaking to look out for Linden Place’s interests. But there remains a fact issue as to whether 2 days after Harder’s initial discussion with Dotson, Harder received assurances from Dotson that Linden Place should not to be alarmed by the situation and that expenditures would be monitored carefully in the future. It is certainly possible that out of such discussions a fiduciary relationship could arise, albeit for a short period of time, since during the first week in November 2004, Jackson disavowed any ongoing efforts on Linden Place’s behalf. And as noted earlier, we are not asked to resolve whether there was any evidence of improper action or inaction by the Bank during this brief period that caused damages to Linden Place.
Because the material facts giving rise to the alleged fiduciary relationship are controverted, the issue of whether Stanley Bank breached a fiduciary duty owed to Linden Place was not appropriate for summary judgment. See Reebles, 29 Kan. App. 2d at 210. Based upon the evidence before it and the manner in which that evidence must be viewed, the district court erred in granting summary judgment on this claim.
Tortious Interference
In order to withstand summary judgment on its claim of tortious interference, Linden Place must point to evidence in the record to support (1) the existence of a contract between it and Williams, (2) Stanley Bank’s knowledge of it, (3) the Bank’s intentional procurement of its breach, (4) the absence of justification, and (5) resulting damages. See Turner v. Halliburton Co., 240 Kan. 1, 12, 722 P.2d 1106 (1986).
Linden Place contends Stanley Bank induced Williams to breach its contract with Linden Place by failing to monitor Williams’ use of the loan proceeds when it knew that they were not being used in the manner required by the contract between Linden Place and Williams. First, Linden Place fails to identify, and we fail to find, any provision in the contract which dealt with Williams’ use of construction loan proceeds. The contract required Williams to build model homes on the lots and pay for the lots within 1 year following the effective date of the contract. Failure to build the model homes or failure to close on the lots within 1 year constitutes a breach of the contract, not the failure to use borrowed funds to build the model homes.
But if we ignore this problem, we are still confronted with Linden Place’s burden of showing some evidence of an intentional inducement to breach. Further, there must be evidence that the Bank’s conduct was malicious in order to withstand summary judgment, i.e., a showing that the Bank acted in a state of mind characterized by an intent to do a harmful act without reasonable justification or excuse. Turner dealt with the claimed tortious interference with a prospective business advantage by Halliburton informing Turner’s prospective new employer that Turner had been discharged for stealing company property. Our review of the cases involving claims of tortious interference with an existing contract discloses a common theme of interference with the performance of a contract to further the tortfeasor’s own interests, or diversion of some benefit under the contract to the tortfeasor’s own use and benefit. We find no evidence in the record of any such conduct here. Stanley Bank did not intentionally and maliciously urge or induce Williams to breach his contract with Linden Place. The Bank did not divert to its own benefit funds which should rightfully have gone to Linden Place.
Linden Place’s reliance on Reebles to support this claim is misplaced. In Reebles the bank took affirmative steps to divert funds from their intended use to satisfy the bank’s own interests. The bank affirmatively represented that the back rent for the gymnasium would be paid out of the proceeds deposited by the buyer for the purchase of Nautilus exercise equipment at the gym. Contrary to this representation, at the closing of the transaction the bank used the sales proceeds to satisfy Brown’s debt to the bank which was secured by the Nautilus equipment. We find no comparable conduct here. If Williams improperly diverted construction loan proceeds from their intended purpose, both Linden Place and Stanley Bank were at risk. Such conduct by Williams would cause Stanley Bank’s loan advances to grow while the equity in its collateral would not. Linden Place, however, would be at a greater risk because of its subordinated position.
We fail to find any evidence from which a jury could conclude that Stanley Bank intentionally and maliciously procured a breach by Williams of his contract with Linden Place. The district court did not err in granting summary judgment on this claim.
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] |
Greene, J.:
In this interlocutory appeal in a medical malpractice case, the district court certified three questions for review, all of which arise from its order granting a new trial after a verdict finding defendant Dr. Steve Lawton 54% at fault for injuries to plaintiff Richard Williams and awarding $200,000 for past and present pain and suffering and $1,775,000 for future pain and suffering. We review and answer the certified questions, but we also view the certified questions as being inextricably linked to the entirety of the order granting a new trial, and we reverse that order and remand with directions to reinstate the verdict of the jury.
Factual and Procedural Background
Williams was an adult father of four upon becoming a patient of Lawton on January 24, 2002, complaining of a urological lesion that would not heal. The medical history form did not specifically request information about diabetes, and no urinalysis was ordered by Lawton. On February 1,2002, Lawton performed an outpatient surgery on Williams. Thereafter, a host of severe problems developed including pain, an unusual protrusion, urination issues, a lack of sensation, and other unusual symptoms. Williams remained in Lawton’s care until May 2002, after which he sought advice from another physician.
On August 11, 2004, Williams filed an action against Lawton alleging negligence in failing to order a urinalysis prior to the surgery, which would have alerted Lawton to undiagnosed diabetes. Additionally, Williams alleged that when he did not heal properly after the surgery, Lawton was negligent in failing to treat the postoperative problems.
After the district court concluded Williams’ standard of care witness qualified as an expert under K.S.A. 60-3412, Philip Diggdon, M.D., testified he had completed thousands of such surgeries, including hundreds on adults, and that Williams should have been checked for diabetes before surgery. Diggdon explained that diabetes left uncontrolled in any surgical patient “is fraught with many, many complications,” including fungal infections. Diggdon testified Lawton’s failure to check for diabetes before surgery was a departure from the standard of care.
Ultimately, the jury found Lawton 54% at fault for Williams’ injuries and Williams 46% at fault. The jury awarded $200,000 for past and present pain and suffering and $1,775,000 for future pain and suffering. The jury was polled, and each juror confirmed the verdict was that of 10 or more jurors.
Lawton then filed a motion for the cap on damages be applied to the verdict, a motion for judgment not withstanding the verdict, and a motion to reconsider the decision qualifying Diggdon as an expert. Lawton also filed a motion for new trial based upon the expert witness issue, juror misconduct, and attorney misconduct. The motion was supported with the affidavit of a juror, which counsel procured after a postverdict systematic telephone poll of all jurors. The affidavit stated, among other complaints, that “the verdict was reached by averaging all of the jurors’ opinions.” Based on this affidavit, the district court acted sua sponte in recalling all the jurors for postverdict interviews. Eight of the 12 jurors appeared for the questioning and separately testified in response to the court’s questions; counsel were not permitted to directly participate in die questioning. The scope and result of these juror interviews will be discussed below.
The district court ultimately granted Lawton’s motion for a new trial based on juror misconduct having “substantially prejudiced” Lawton’s rights. A new trial was scheduled for November 7, 2006, but the court granted the parties’ request to seek an interlocutory appeal on three issues only: (i) the court’s admission of Diggdon’s expert testimony; (ii) the court’s authority to recall the jury sua sponte; and (iii) the court’s decision to question the jurors itself, without permitting direct participation by counsel during the recall. This court granted the defendant’s interlocutory appeal on September 7, 2006. A subsequent order granted the plaintiffs cross-appeal. Timely docketing followed.
What is the Proper Scope of this Interlocutory Appeal?
The three questions certified by the district court were appealed respectively by the party aggrieved by each; i.e., Lawton appealed the court’s decision to permit the plaintiff s expert to testify, and Williams appealed the court’s decisions in connection with the jury recall. Lawton argues, however, that Williams has attempted to expand the scope of the appeal by raising other issues related to the order for new trial and seeking a reinstatement of the jury verdict. Accordingly, Lawton suggests that the order granting a new trial was not itself appealed or appealable and that this court should refrain from addressing any issues beyond the specific questions certified. We disagree.
First, we note that addressing the specific certified questions related to juiy recall without considering whether a new trial was warranted would require us to issue a mere advisory opinion, which would be prohibited. See Cady v. Cady, 224 Kan. 339, 345, 581 P.2d 358 (1978) (courts do not render advisory opinions on abstract questions of law absent actual controversy). Surely the district court had no such naive expectation in certifying the questions related to the jury recall; it seems far more logical that the district court believed there was legitimate room for difference of opinion on the entire procedure employed for the jury recall and questioning, and the court expected us to review the key questions of law and determine whether jury recall and its outcome adequately supported the order for a new trial. In fact, the district judge clearly expressed his understanding of the scope of this appeal by stating, “And it’s my understanding if I make interlocutory findings, that what goes up is the whole motion for new trial and not just whatever issue I say goes up.”
Second, our Supreme Court has recognized that the proper scope of an interlocutory appeal is not necessarily restricted to the specific certified questions. In Cypress Media, Inc. v. City of Overland Park, 268 Kan. 407, Syl. ¶ 2, 997 P.2d 681 (2000), the court held: “Where an appealable issue in an interlocutory appeal is inextricably intertwined with other issues that do not themselves meet the criteria for an interlocutory appeal, the latter issues may also be reviewed to allow meaningful review and promote judicial economy.” In so holding, the court considered federal authority, specifically Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1365 (11th Cir. 1997). It appears the federal courts are consistent on this principle of pendant interlocutory jurisdiction.
The federal courts recognize the permissible scope of an interlocutory appeal is not limited to the precise questions that may have been certified by the district court, but rather the appeal should be limited to the order or orders implicated by the certified questions. See, e.g., Paper, Allied-Industrial v. Continental, 428 F.3d 1285 (10th Cir. 2005) (appellate court can and should address a different legal question if it controls the disposition of the order from which the certified questions were taken); J. S. ex rel. N.S. v. Attica Cent. Schools, 386 F.3d 107 (2d Cir. 2004), cert. denied 544 U.S. 968 (2005) (appeal is not necessarily limited to certified issue, and the court has discretion to consider any aspect of the order from which appeal was taken); McFarlin v. Conseco Services, LLC, 381 F.3d 1251 (11th Cir. 2004) (appellate jurisdiction is not tied to the particular questions formulated by the district court but rather applies to the order certified); Dailey v. National Hockey League, 987 F.2d 172 (3d Cir.), cert. denied 510 U.S. 816 (1993) (review in interlocutory appeal is not constrained by question certified but may address any issue necessary to decide the appeal); Pinney Dock and Transport Co. v. Penn Cent. Corp, 838 F.2d 1445 (6th Cir. 1988), cert. denied 488 U.S. 880 (1988) (issues not properly certified for interlocutory appeal are subject to discretionary power of review if otherwise necessary to the disposition of the case); Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976 (5th Cir. 1985) (district court articulation of certified issues of interlocutory appeal in effect certified entire order for review); In re Oil Spill by Amoco Cadiz, Etc., 659 F.2d 789 (7th Cir. 1981) (appellate court free to consider such questions as are basic to and underlie the orders supporting the appeal).
Our discussion of the permissible scope of an interlocutory appeal should not be misunderstood. We adhere to the long-standing policy in Kansas to discourage interlocutory appeals and avoid piecemeal and fractionalized litigation. See McCain v. McCain, 219 Kan. 780, 783, 549 P.2d 896 (1975). Notwithstanding certification of an interlocutory appeal by a district court, granting permission for such an appeal is solely within our sound discretion. K.S.A. 60-2102(c). Generally, an order granting a new trial would not be subject to interlocutory review. See Dougan v. Rossville Drainage Dist., 270 Kan. 468, 485, 15 P.3d 338 (2000). Our review of such an order in this case should be viewed as one of the narrow exceptions to the rule and solely due to our conclusion as to pendant interlocutory jurisdiction. See Noel v. Pizza Management, Inc., 258 Kan. 3, 15-18, 899 P.2d 1013 (1995).
We conclude that all three of the certified questions were derived from and were the lynchpins for the district court’s order granting a new trial to Lawton. Just as contemplated by the district court, we have no difficulty in reviewing that order in its entirety as within the proper scope of this interlocutory appeal.
Did the District Court Err in Finding Plaintiffs Expert Witness Was Qualified to Testify Under K.S.A. 60-3412?
As to the first certified question and subject of Lawton’s appeal, Lawton contends Williams’ expert, Dr. Diggdon, did not meet the criteria set forth in K.S.A. 60-3412 and, thus, the district court erred in admitting his testimony and in rejecting this as a basis for a new trial. Williams argues the district court did not misinterpret the statute and applied it correctly. The amicus brief of the Kansas Association of Defense Counsel supports Lawton’s position.
The interpretation of a statute is a question of law over which an appellate court has unlimited review. Cooper v. Werholtz, 277 Kan. 250, 252, 83 P.3d 1212 (2004).
K.S.A. 60-3412 provides:
“In any medical malpractice liability action, as defined in K.S.A. 60-3401 and amendments thereto, in which the standard of care given by a practitioner of the healing arts is at issue, no person shall qualify as an expert witness on such issue unless at least 50% of such person’s professional time within the two-year period preceding the incident giving rise to the action is devoted to actual clinical practice in the same profession in which the defendant is licensed.”
Williams’ surgery was performed on February 1, 2002; Williams first saw Lawton on January 24, 2002. The district court concluded the incident, under the statute, occurred February 1, 2002.
Diggdon testified as to the following:
- Diggdon was 74 years old when he testified.
- When he practiced full-time, he saw up to 100 patients per week.
- He was a board certified urologist since 1968, having been a physician since 1958, and had performed thousands of surgeries like that performed on Williams, including “probably in die hundreds, high hundreds” on adults.
- Between January 24, 2000 and October 31, 2001, he saw patients in his office or a clinic.
- In February 2000, he worked Mondays, Tuesdays, and half-days on Wednesdays, Thursdays, and Fridays.
- In October of 2001, he saw six to eight patients per week.
- His income for the 2 years between January 2000 and January 2002 was approximately $130,000 gross annually, with approximately 10% being for consultations on legal matters/cases.
- He retired from his clinical practice entirely on October 31, 2001, approximately 4 months prior to Williams’ circumcision.
- He testified as an expert in other cases prior to this case. He forensically reviewed approximately 28 cases over a 2-year period prior to this trial.
The district court concluded Diggdon qualified as an expert under K.S.A. 60-3412 and provided this explanation in its memorandum opinion:
“From Januaiy 1, 1997 to October 31, 2001, Dr. Diggdon was engaged in clinical practice, seeing patients in his office. During this time period, Diggdon’[s] office was open all day on Mondays, and four hours per day on Tuesdays, Wednesdays, Thursdays, and Fridays. Diggdon testified, in trial or at deposition, that by February 2000, he was seeing approximately 6 to 12 patients per day. Importantly, Diggdon testified that the drop in patients was due to the fact patients stopped coming. He said that the drop in patients was not due to any desire to see fewer patients.
“Dr. Diggdon testified at trial that if one totaled all the hours he spent in clinical practice seeing patients in the office in the two years before February 1, 2002, even counting the months of no clinical patients form October 31, 2002 to February 1, 2002, he spent more than 50 percent of his time in actual clinical practice. In addition, Diggdon testified that more than fifty percent of his total income during that same two-year period came from actual clinical practice.”
Lawton’s argument is that Diggdon was not qualified because he had no clinical practice and practiced 100 percent as an expert witness for the 3 months preceding this incident and Diggdon was seeing patients only part-time for the remainder of the 2 years preceding October 31, 2002. Lawton argues that the statute requires that a physician witness be a full-time professional throughout the 2-year period and devote 50% of his or her time to clinical practice.
The statute clearly instructs the district court to look at the entire 2 years preceding the occurrence and determine if at least 50% of the witness’ professional time was spent on clinical practice. The record supports the district court’s finding that Diggdon did spend at least 50% of his professional time during the 2 years preceding the incident on his clinical practice, notwithstanding the fact of his retirement approximately 4 months immediately prior to the incident and his full-time consulting thereafter.
Lawton relies heavily on legislative history. We have examined Lawton’s argument carefully, and we are sensitive to the legislative history cited that would suggest that “hired guns” or “professional witnesses” who do not maintain a clinical practice may not have been intended to meet the eligibility standards of the statute. See Endorf v. Bohlender, 26 Kan. App. 2d 855, 864, 995 P.2d 896, rev. denied 269 Kan. 932 (2000). Before consulting legislative history, however, we examine the statutory language to see if it is capable of more than one meaning. See Gehring v. State Dept. of Transportation, 20 Kan. App. 2d 246, 248, 886 P.2d 370 (1994), rev. denied 256 Kan. 994 (1995). Generally, courts employ a presumption that the legislature expressed its intent through the plain language employed within the statute. Hawley v. Kansas Dept. of Agriculture, 281 Kan. 603, 618, 132 P.3d 870 (2006). Where the legislature has unambiguously determined the size of the mesh in the net, the fact that unintended varieties of fish may pass through that mesh has little bearing on anything. See Colorado Interstate Gas Co. v. Board of Morton County Comm'rs, 247 Kan. 654, 662, 802 P.2d 584 (1990).
The fact is that there is no requirement within the express language of K.S.A. 60-3412 that the proposed expert witness devote any specific amount or percentage of his or her time to the professional practice of the healing arts at issue. The clear thrust of the statutory language is that at least 50% of “such person’s professional time within the two-year period” must be “devoted to actual clinical practice.” If the legislature had desired to require as a second criterion that the proposed witness “have a full-time professional practice” or “be at all times within the period a full-time professional” or “devote at least [a certain] % of time to a professional practice,” any such language could easily have been employed to achieve the result argued by Lawton. No such language appears in the statute, and we decline to judicially graft language onto the statute that is simply not there. We do not add something to statutory language that is clearly not present in the statute. See State v. Alires, 21 Kan. App. 2d 139, Syl. ¶ 2,895 P.2d 1267 (1995).
We conclude that the district court did not err in its interpretation and application of K.S.A. 60-3412. Diggdon properly testified on behalf of plaintiffs, and his testimony properly played no role in determining whether Lawton was entitled to a new trial.
Did the District Court Err in the Decision to Recall the Jury and the Procedure Utilized in Questioning the Jury Upon Recall?
On cross-appeal, Williams challenges the district court’s sua sponte decision to recall the jury, arguing that the recall procedure utilized was improper absent motion of a party, untimely, failed to include participation of counsel, invaded the mental processes of the jury, and failed to show sufficient misconduct to support the court’s order granting a new trial.
Our standard of review is multifaceted. To the extent we are required to interpret a statute, appellate review is unlimited. Babe Houser Motor Co. v. Tetreault, 270 Kan. 502, 506, 14 P.3d 1149 (2000). To the extent we examine the district court’s decision to order a new trial, we review for an abuse of discretion. Sterba v. Jay, 249 Kan. 270, 274, 816 P.2d 379 (1991). Judicial discretion must be exercised in accordance with established principles of law. Saucedo v. Winger, 252 Kan. 718, 731, 850 P.2d 908 (1993).
General Rules for Jury Recall in Kansas
We begin with an overview of relevant policy, statutes, rules, and procedures or practices governing the recall of a jury. The right to trial by jury is protected by the Kansas Constitution Bill of Rights, § 5. This right is a substantial and valuable right, and it must be carefully guarded against infringement. Waggener v. Seever Systems, Inc., 233 Kan. 517, 520, 664 P.2d 813 (1983). As noted by the federal rules advisory committee, the original common-law rule prohibiting impeachment of a verdict was based on sound policy rationale: (i) it discouraged tampering with the jury and harassment or annoyance of jurors; (ii) it protected the privacy and secrecy of jury deliberations; and (iii) it furthered a strong policy of finality of decisions by upholding verdicts. Concannon, Impeaching Civil Verdicts: Juror Statements as Prejudicial Misconduct, 52 J.K.B.A. 201 (Fall 1983). Public policy forbids the questioning of a juror on the mental processes used in reaching a verdict since “there is no possible way to test the truth or veracity of the answers.” Kincaid v. Wade, 196 Kan. 174, 178, 410 P.2d 333 (1966), as quoted in State v. Franklin, 264 Kan. 496, 499, 958 P.2d 611 (1998). Our Supreme Court has summarized these policy considerations as follows:
“It is a long established and generally accepted doctrine that testimony or affidavits of jurors impeaching their verdict will not be received where it is not evident that the jury had acted in contravention of the court’s instructions and of the evidence. This protection is to insure that the mental process of a juror in reaching a verdict or the factors which influenced the mental process cannot be inquired into for the purpose of impeaching a verdict. The right to inquire into the jury’s basis for reaching a verdict would open the door to the most severely harmful methods for tampering with jurors and would allow a dissatisfied or corrupted juror to destroy a verdict to which that juror had given his assent under sanction of the juror’s oath. Jurors are to be afforded the right to have private, frank and free discussions of the questions under consideration.” City of Ottawa v. Heathman, 236 Kan. 417, 420, 690 P.2d 1375 (1984).
Kansas recognized a limited need to permit juror testimony in the enactment of two statutes, today embodied in K.S.A. 60-441 and K.S.A. 60-444(a). These statutes provide:
“Upon an inquiry as to the validity of a verdict or an indictment no evidence shall be received to show the effect of any statement, conduct, event or condition upon the mind of a juror as influencing him or her to assent to or dissent from the verdict or indictment or concerning die mental processes by which it was determined.” K.S.A. 60-441.
“This article shall not be construed to (a) exempt a juror from testifying as a witness to conditions or occurrences either within or outside of the jury room having a material bearing on the validity of the verdict or the indictment, except as expressly limited by K.S.A. 60-441.” K.S.A. 60-444(a).
Appellate courts since the early 1980’s have struggled with the inherent tension between guarding the integrity and finality of jury verdicts and protecting a party from juror misconduct. The contours of the statutes have best been defined in the following cases: Where the jury is polled and each juror acknowledges that the verdict is his or her verdict, this consideration must be weighed against a later challenge to the verdict. Franklin, 264 Kan. at 505; see State v. Kaiser, 260 Kan. 235, 250-52, 918 P.2d 629 (1996). The “proper course” or better practice is to seek permission of the court to interview jurors after a verdict. See State v. McDonald, 222 Kan. 494, 496-97, 565 P.2d 267 (1977). Affidavits of counsel need not be considered in determining whether juror misconduct has occurred. Butler v. HCA Health Svcs. of Kansas, Inc., 27 Kan. App. 2d 403, 408, 6 P.3d 871, rev. denied 268 Kan. 885 (1999). Evidence suggesting misconduct must be sufficiently detailed to demonstrate just what the jurors did to determine whether their actions could constitute misconduct. See Cornejo v. Probst, 6 Kan. App. 2d 529, 537, 630 P.2d 1202, rev. denied 230 Kan. 817 (1981).
Supreme Court Rule 169 (2006 Kan. Ct. R. Annot. 221) mandates the trial judge give the following instruction to the jury prior to discharge:
“You have now completed your duties as jurors in this case and are discharged with the thanks of the court. The question may arise whether you may discuss this case with the lawyers who presented it to you. For your guidance the court instructs you that whether you talk to anyone is entirely your own decision. It is proper for the attorneys to discuss the case with you and you may talk with them, but you need not. If you talk to them you may tell them as much or as little as you like about your deliberations of the facts that influenced your decision. If an attorney persists in discussing the case over your objections, or becomes critical of your service either before or after any discussion has begun, please report it to me.” (Emphasis added.)
This Rule and its mandatory instruction seems to contemplate an open exchange of information between willing jurors and counsel, but the statutory restrictions on formal use of such information demonstrates that any such exchange is primarily intended for the educational benefit of counsel and not for the purpose of “fishing” for grounds to impeach the verdict. See State v. Blocker, 211 Kan. 185, 196, 505 P.2d 1099 (1973) (K.S.A. 60-444 “not intended to authorize broad hunting expeditions or fishing excursions.”).
The posttrial calling of jurors for testimony is governed by Supreme Court Rule 181 (2006 Kan. Ct. R. Annot. 227), which provides:
“Jurors shall not be called for hearings on post-trial motions without an order of the court after motion and hearing held to determine whether all or any of the jurors should be called. If jurors are called, informal means other than subpoena should be utilized if possible.”
Our Supreme Court has explained the importance of this rule in State v. Ruebke, 240 Kan. 493, 513, 731 P.2d 842, cert. denied 483 U.S. 1024 (1987).
“Jurors may be recalled for post-trial hearings only by order of the court after a hearing on a request to recall the jury. A recall of the jury is not a routine matter. Jury service is a public duty of citizens and recall of jurors after their service has ended to testify as to events occurring in the jury room during deliberations is a serious step. That step is to be undertaken only for just cause. The procedure should never be utilized as a fishing trip upon a losing party’s hope that jury misconduct might surface if the jurors could be questioned under oath. The burden is upon the party seeking a order to recall the jurors to show the necessity for the order. [Citation omitted.]”
Our extensive review of cases addressing allegations of jury misconduct demonstrates that the burden to support a jury recall, as well as the burden in demonstrating jury misconduct, are indeed heavy ones. Our courts have consistently held that remarks by one or more jurors about outside matters do not vitiate the verdict absent an affirmative showing the remarks prejudicially affected the verdict. See the cases cited in Butler, 27 Kan. App. 2d at 411-12. A verdict may not be impeached by questions concerning a juror’s views or conclusions, the reasons for those views, the factors used in determining those conclusions, what influences those views, or the mental processes utilized in reaching those conclusions in the matter. Saucedo v. Winger, 252 Kan. 718, 728-29, 850 P.2d 908 (1992). A juror may not impeach his or her verdict on any ground inherent in the verdict itself or divulge what considerations influenced him or her in arriving at the verdict; inquiry maybe made into the extrinsic matters of physical facts, conditions, or occurrences of juror misconduct, either within or without the jury room, which were material to the issues being determined. Franklin, 264 Kan. at 503-04. A new trial is to be granted only if required in the interest of justice. See K.S.A. 60-259; K.S.A. 22-3501(1); Franklin, 264 Kan. at 502, (quoting Kaiser, 260 Kan. at 250). Juror misconduct is not grounds for a new trial unless it is shown to have substantially prejudiced a party’s rights. State v. Goseland, 256 Kan. 729, 735, 887 P.2d 1109 (1994); see K.S.A. 60-259(a). Examining appellate cases over the past 25 years, it is clear that a jury recall is generally to be discouraged.
Jury recall issues have most often been discussed in the context of a quotient verdict. A quotient verdict is one in which the jurors agree in advance to return as their verdict the amount obtained by averaging the figures each juror records as his of her verdict and subsequently return a verdict that is the direct product of such an agreement. Such a verdict is frequently called a “gambling verdict” because at the time the advance agreement is made no juror can possibly know the ultimate figure to which he or she has been committed. Foster v. City of Augusta, 174 Kan. 324, 331, 256 P.2d 121 (1953). With respect to allegations of juror misconduct due to a quotient verdict, an affidavit may not be used to impeach the verdict unless it establishes that the jury entered into a conscious conspiracy to circumvent the deliberation process by engaging in conduct which produces a quotient verdict. See, e.g., Jones v. Sigg, 261 Kan. 614, 621-22, 930 P.2d 1077 (1997); Cott v. Peppermint Twist Mgt. Co., 253 Kan. 452, 478-79, 856 P.2d 906 (1993). Mere allegations of “averaging” do not establish an impermissible quotient verdict. See Blevins v. Weingart Truck & Tractor Service, 186 Kan. 258, 263-65, 349 P.2d 896 (1960).
“The impropriety of a ‘quotient’ verdict, and the situation which the law abhors, consists not in the method or the result but in the advance agreement of the jurors to be bound by the quotient so determined, and then return the quotient as a verdict without further suitable deliberation. ... If, however, there is no antecedent agreement between the jurors, or commitment to be bound by the quotient so found, resort to the averaging process is entirely permissible. The jurors are as much entitled to strike a quotient to see what their average thinking is, to serve as a working basis, as they are to let each juror give his suggested verdict orally and permit some member of the jury to strike a rough quotient by mental arithmetic. So long as there is opportunity for full discussion and deliberation concerning the question of damages, and so long as each juror gives his own independent agreement to the sum arrived at, after he knows what the sum is, there is no misconduct and no ground for a new trial.” 186 Kan. at 264.
Our appellate courts have refused to conclude that a quotient process should impeach the juiy verdict in numerous cases. See, e.g., Jones, 261 Kan. at 618-23 (affidavits insufficient); Cott, 253 Kan. at 478-79 (affidavits inadmissible); Siruta v. Hesston Corp., 232 Kan. 654, 669, 659 P.2d 799 (1983) (affidavits insufficient); Merando v. A.T. & S.F. Rly. Co., 232 Kan. 404, 407-10, 656 P.2d 154 (1982) (affidavits inadmissible); Hogue v. Kansas Power & Light Co., 212 Kan. 339, 344-46, 510 P.2d 1308 (1973) (juror testimony inadmissible); Blevins, 186 Kan. at 263-65 (juror testimony insufficient). Our courts have upheld a new trial on a showing of jury misconduct related to a quotient verdict in City of Ottawa, 236 Kan. 417, and Verren v. City of Pittsburg, 227 Kan. 259, 607 P.2d 36 (1980).
Analysis of the Jury Recall by the District Court
Applying these principles to the facts before us, we are compelled to conclude that the district court abused its discretion in granting a new trial to the extent the decision was based on jury misconduct. The abuse of discretion is inherent in the following actions of the court:
Systematic juror by juror contact by counsel should not be undertaken without consent of court. As noted above, open exchange between willing jurors and counsel is permitted by the instruction required by Rule 169. Yet, case law also recognizes that the better procedure or practice is to seek permission of the court to interview jurors after a verdict. See McDonald, 222 Kan. at 496-97. Use of juror testimony to impeach a verdict is unquestionably to be discouraged. See K.S.A. 60-444; Ruebke, 240 Kan. at 513. Construing these mandates in an effort to harmonize their apparent competing intentions and policy safeguards, we hold that the better practice dictates that the systematic contact of the entire jury, juror by juror, with the clear intention of exploring grounds to impeach the verdict be undertaken only with the knowledge and consent of the court. Moreover, where an affidavit results from such an effort without approval of the court, the affidavit should be viewed with a healthy amount of circumspection. Where, as here, the verdict itself has no obvious impeachable qualities, the jury was polled and endorsed the verdict, there has been no reported juror misconduct, there has been no consent of the court to juror contact, the contact is initiated by counsel rather than a juror, and the affidavit results from a systematic attempt to contact all jurors by counsel with an obvious intent to challenge the verdict, the court must be cautious in considering and in giving credence to the affidavit. In the absence of significant corroboration of the averments in such an affidavit, recall of the jury must be discouraged.
Failure to seek corroboration prior to jury recall. Because jury recall should be avoided without strong suspicion of misconduct, we believe a single juror’s affidavit procured under these circumstances should be subject to further inquiry prior to any recall of further jurors. This could have been achieved here by having the single averring juror appear for such an inquiry before proceeding with any further jury recall. Because no such corroboration was achieved, recall was not warranted based solely on the affidavit.
Sua sponte recall is contrarg to Supreme Court Rule. Rule 181 (2006 Kan. Ct. R. Annot. 227) clearly prohibits jurors being called for hearings on posttrial motions without a court order “after motion and hearing” to determine whether any jurors should be recalled. We believe this rule is intended to protect the integrity and finality of the verdict from precipitative action of the court. As noted by the dissent, the district judge stated that he was addressing the matter sua sponte, but counsel apparently viewed this as an invitation for a motion and accommodated the court with an oral motion. If not expressly violated, Rule 181 was violated in spirit.
The questioning of jurors by the court was not an abuse of discretion, but it man have invaded the mental processes of the jury. Williams cites no authority and we are not aware of any in Kansas addressing the proper technique for questioning jurors in a recall, beyond the general rule that the mental processes of the jury not be invaded. Here, the district court decided to conduct the questioning itself without direct participation of counsel. We decline to hold that this approach to juror questioning was itself an abuse of discretion. Our examination of the questioning, however, causes us to conclude that the questioning by the court may have invaded the mental processes of the jury. In fact, the district judge commented he believed that “mental impressions are part of the quotient verdict issue” and “I can’t stay away from it completely.” Indeed, the court often asked questions such as: “[W]hy did you . . . ?”; “[D]id you believe that you still had the ability to disagree?”; “[Wjould that mean that when [the jurors] put their numbers down, some [jurors] didn’t understand . . .?”; “[D]idyou believe that the second time was going to still be a run-through, at which time you could still discuss and dissent or did you believe that that was going to be the number of the jury?”; and “[W]hy [did some jurors] disagree with the number?” Such questioning probes the thought processes of the jurors and is prohibited by our case law.
furor testimony insufficient to show quotient verdict. Although whether a verdict was a quotient verdict is a fact-based inquiry (Foster, 174 Kan. at 331) here, we are able to apply well-established legal principles to the undisputed evidence and the findings of the district court without reweighing the testimony of individual jurors. Focusing on the issue of whether there was an opportunity for discussion and deliberation on the question of damages, we conclude that the collective testimony of the jurors did not support jury misconduct. Although the district court found that “some” of the jurors “believed that they were agreeing, in advance” to be bound to a second process of averaging comparative fault percentages, others “believed the average was a starting point for discussion.” Where jurors are not in complete agreement in advance to be bound by a quotient verdict and there is no collective understanding as to the effect of averaging, there simply is no “conscious conspiracy” to disregard and circumvent the instructions on the law given by the court.
Moreover, the jurors who were asked unanimously agreed that at least two if not more averages were sequentially discussed and considered; this approach defies the impermissible aspects of a quotient verdict. So long as averaging is merely a tool for discussion and not an exclusive and preordained formula, the result is not prohibited. Most importantly, the jurors who were asked unanimously stated that after the final averaging, the jurors voted on the result before returning the verdict. The collective testimony simply does not support a quotient verdict. Consider, for example, this testimony of Juror B.B.:
“THE COURT: So when you — when you decided to take the average — or decided on the procedure of the average, did you all decide ahead of time before you did the average that that was going to be the verdict of the jury?
“Juror [B.B.]: I don’t think it was really stated that, but I mean I — I assume so.
“THE COURT: After you took — or arrived at the second number but before you took the vote, did you believe that you still had the ability to disagree with the—
“Juror [B.B]: sure.
“THE COURT: — number?
“Juror [B.B.]: Sure.
“THE COURT: Okay. And so you — what you’re telling me is the — the jury wasn’t going to be bound by that average number without discussion?
“Juror [B.B.]: No, and actually we went around and asked, do you agree, does everybody agree, does anybody not agree. And I believe everyone agreed.
“THE COURT: After the discussion? But they agreed on the procedure would be that you still had the ability to discuss the number after the second average came out?
“Juror [B.B.]: Right.”
Juror B.B.’s testimony was not unique; in fact, all but one juror who testified indicated that there was some discussion after the second vote was taken. Although the dissent notes a lack of unanimity among jurors in City of Ottawa, other factors clearly required a new trial there, including a disregard for the court’s instructions and a lack of discussion after an improper approach to determining damages. 236 Kan. at 425-26.
When the totality of these circumstances are considered, the district court abused its discretion in ordering and conducting the juiy recall and erred in determining there was juror misconduct as a result of the recall. We are most offended by the systematic contact of jurors after the verdict in an attempt to impugn the integrity of the verdict. Whether this technically qualifies as a “fishing expedition,” this approach resulted in tampering with the jurors in an attempt to destroy the verdict. When the verdict is not itself inherently suspicious and there is no misconduct reported by jurors, counsel must not invade the sanctity of the jury process in the hope of discovering such misconduct. If we were to endorse the conduct of defense counsel in this case, we believe it would indeed “open the door to the most severely harmful methods for tampering with jurors” and no verdict would be safe from the ravages of counsel for the losing party. See City of Ottawa, 236 Kan. at 420.
We share the concern of the United States Supreme Court, which rejected a verdict challenge stating:
“[L]et it once be established that verdicts solemnly made and publicly returned into court can be attacked and set aside on the testimony of those who took part in their publication and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate the finding. Jurors would be harassed and beset by the defeated party in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside a verdict. If evidence thus secured could be thus used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation — to the destruction of all frankness and freedom of discussion and conference.” McDonald v. Pless, 238 U.S. 264, 267-68, 59 L. Ed. 1300, 35 S. Ct. 783 (1915).
Although the district court was not a part of this conduct, it became a participant when it failed to consider the polling of the jury after the verdict, considered the singular juror affidavit absent further corroboration, and then sua sponte ordered the jury recall. Although allegations of juror misconduct may properly provoke judicial action, the circumstances here were insufficient to set aside the jury’s verdict and to order a new trial.
To the extent that jury misconduct was the lynchpin of the court’s order granting a new trial, that order must be reversed. We acknowledge that the district court discussed additional grounds in support of a new trial in the order granting a new trial, but the court specifically found that “the evidence of jury misconduct regarding insurance, attorney fees, and the extrapolated verdict is not enough to independently warrant a finding of substantial prejudice to the rights of Lawton to a fair and impartial trial.” Similarly, the court found that allegations of attorney misconduct “did not approach the level of conduct . . . that would warrant a finding of substantial prejudice.” For these reasons, we conclude our reversal of the district court’s conclusion of jury misconduct clearly warrants the reversal of the court’s order for a new trial. Accordingly, we reverse and remand with directions to reinstate the verdict of the jury.
In summary, we have addressed and answered the certified questions as follows: (i) The district court did not err in its interpretation and application of K.S.A. 60-3412 in permitting Williams’ expert to testily; (ii) the district court erred in ordering a jury recall absent any motion of a party; and (iii) the district court did not abuse its discretion in questioning jurors without direct participation of counsel. Because our analysis has undermined the principal basis for the district court’s order of a new trial, we reverse that order and remand with directions to reinstate the verdict of the jury.
Reversed and remanded with directions. | [
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Caplinger, J.:
Resolution Oversight Corporation (ROC), an appointed receiver for Western Indemnity Insurance Company (Western Indemnity), appeals the district court’s order granting summary judgment to the Kansas Health Care Stabilization Fund (the Fund) on ROC’s breach of contract claim. ROC argues the district court erred in concluding the Fund acted ultra vires in entering into a letter agreement with Western Indemnity whereby the Fund agreed to reimburse Western Indemnity in the amount of $800,000 if Western Indemnity obtained a declaratory judgment that its insurance policy did not cover negligent acts committed in Kansas. ROC further contends the district court erred in concluding that a claim against the Fund for statutory liability would be barred by the applicable statute of limitations.
We conclude the Fund had implied authority pursuant to K.S.A. 2006 Supp. 40-3403(b)(l)(A) to enter into an agreement with Western Indemnity to seek a declaration as to the limits of Western Indemnity’s coverage. However, because K.S.A. 40-3410 required court approval of any settlement implicating the Fund, the Fund acted without authority in agreeing to pay a portion of the settlement absent such court approval, and the district court appropriately granted summary judgment to the Fund.
Finally, we lack jurisdiction to consider ROC’s argument that the district court erred in finding that a claim for statutory liability, had it been raised, would have been barred by the applicable statute of hmitations. Further, we decline ROC’s invitation to render an advisory opinion as to the statute of hmitations issue.
Factual and procedural background
Western Indemnity issued two medical malpractice insurance pohcies to Emergency Medical Services, Inc. (EMS), which covered EMS employee Dr. Catherine White from March 1,1999, to March 1, 2000. Policy No. WPLP23373E99 (Policy No. 73) provided for $1,000,000 per claim coverage; Policy No. WPLP23372E99 (Policy No. 72) provided for $200,000 per claim coverage. At the time Policy No. 73 was issued, it did not restrict its coverage to medical practice in Missouri, and the pohcy was included on the certification form required by K.S.A. 40-3402(a)(l) for Dr. White’s participation in the Fund. Dr. White opted for excess coverage under the Fund in the amount of $800,000 per claim.
The Wyandotte County malpractice action
In September 1999, James Winfrey sued Dr. White in Wyandotte County District Court for medical malpractice allegedly occurring in Kansas. Western Indemnity issued a revised endorsement to Policy No. 73 on February 22, 2000, limiting coverage of the $1,000,000 malpractice policy to practice in Missouri.
Western Indemnity then tendered $200,000, the policy limits of Policy No. 72, to the Fund in satisfaction of its obligation to defend Dr. White. The Fund rejected Western Indemnity’s tender, maintaining that Dr. White was covered under Policy No. 73 for an additional $1,000,000.
Western Indemnity and the Fund eventually orally agreed to settle the Wyandotte Counly action for the combined policy limits of $1,200,000 with a reservation that Western Indemnity could thereafter seek a declaration that Policy No. 73 did not apply to the claim. The parties further agreed that if Western Indemnity obtained a favorable declaratory judgment, the Fund would reimburse Western Indemnity in the amount of $800,000. This oral agreement was memorialized in a letter dated August 16, 2000, to the Fund from Western Indemnity’s local agent, which stated:
“This letter confirms our agreement regarding the above referenced case. Western has agreed to settle this matter for $1,200,000, which releases all claims against Dr. White, Western Indemnity and the Kansas Health Care Stabilization Fund. Western will then proceed with filing a Declaration Judgment action to determine if Western’s policy number WPLP23373E99 provides coverage to Dr. White for this claim. Kansas Health Care Stabilization Fund agrees that the $1.2 MM paid to settle the case was reasonable and will not contest the reasonableness of the settlement.
“If the declaration judgment action filed in this matter determines that WPLP23373E99 does not provide coverage to Dr. White, the Kansas Health Care Stabilization Fund will pay Western $800,000 in fund coverage. Western acknowledges that $300,000 is the maximum amount that can be paid in any one year on a claim. Hence, the $800,000 would be paid to Western over a three year period. “If this letter correctly reflects our oral agreement, please acknowledge by signing below and returning same to me. If your understanding is different, please let me know as soon as possible.”
The letter was signed by an attorney for the Fund, and Western Indemnity subsequently settled Winfrey’s medical malpractice claim against Dr. White for $1,200,000.
In 2001, Western Indemnity entered receivership in Texas, and in 2003, ROC was appointed receiver for Western Indemnity’s assets. On July 24, 2003, ROC presented a demand to the Fund on behalf of Western Indemnity for $800,000 pursuant to the agreement memorialized in the August 16,2000, letter. The Fund’s chief attorney responded by acknowledging the agreement but noting that Western Indemnity had not obtained a declaratory judgment.
ROC’s declaratory judgment action in Missouri
ROC thereafter filed a declaratory judgment action in Jackson County, Missouri, circuit court naming EMS and the Fund as defendants. The Fund was dismissed for lack of personal jurisdiction, and the declaratory judgment action proceeded with EMS as the sole defendant. The Missouri court eventually issued a declaratory judgment reforming Policy No. 73 to conform to the intent of the contracting parties, and concluding the policy excluded medical negligence occurring in Kansas.
Shawnee County action for breach of contract
After again unsuccessfully seeking payment from the Fund, ROC filed suit in Shawnee County District Court for breach of contract. The Fund moved for dismissal or summary judgment. Thereafter, ROC attempted to file a certified copy of the Missouri declaratory judgment order with the Shawnee County District Court as a certified foreign judgment, an action opposed by the Fund.
The district court initially determined ROC’s action was not time barred because it was governed by the 5-year statute of limitations for breach of contract actions. Nevertheless, the district court granted summary judgment for the Fund based upon its conclusion that the Fund was not statutorily authorized to enter into the letter agreement with Western Indemnity, and the contract was void as ultra vires.
ROC sought reconsideration of the district court’s statute of limitations ruling, and also sought to amend its petition to include a claim for statutory indemnity from the Fund.
The district court denied ROC’s motion to reconsider and request to amend the petition, and ROC subsequently filed this appeal of the district court’s summary judgment decision.
Background
A brief discussion of the purpose and operation of the Fund is helpful before beginning our analysis of the issues in this appeal.
The Fund provides excess medical malpractice coverage to Kansas health care providers who qualify under the Health Care Provider Insurance Availability Act (the Act), K.S.A. 40-3401 et seq. The Fund is supported by surcharges assessed to the health care providers through their basic malpractice insurance carrier. K.S.A. 2006 Supp. 40-3404. The health care provider selects the amount of excess coverage desired under the Fund which determines the surcharge paid into the Fund. K.S.A. 2006 Supp. 40-3403(f) and (1).
When a health care provider covered by the Fund is sued for medical malpractice in Kansas, the primary responsibility for defending the health care provider rests with the insurance carrier. K.S.A. 40-3408(a) and K.S.A. 40-3410. If the insurance carrier believes that the liability of the health care provider exceeds the applicable policy limits, the carrier may tender the policy limits to the Fund, and the Fund is then responsible for determining whether to mount a defense or settle the malpractice claim within the applicable excess coverage limits of the option selected by the health care provider. K.S.A. 40-3408(a) and K.S.A. 40-3410. If the Fund decides to settle the malpractice claim, the settlement must be approved by the court in which the malpractice action is pending, or, if no action is pending, in a court of appropriate jurisdiction. K.S.A. 40-3410(a) and (c); see generally Aves v. Shah, 258 Kan. 506, 508-09, 906 P.2d 642 (1995).
Was the contract between the Fund and Western Indemnity ultra viresP
ROC first challenges the district court’s conclusion that the Fund lacked the authority to agree to reimburse Western Indemnity in the amount of $800,000 if Western Indemnity obtained a declaratory judgment retroactively reforming Policy No. 73 to exclude coverage of negligent acts committed in Kansas. ROC contends the Fund’s action was not ultra vires because the Fund possessed both express and implied statutory authority to contract with insurance companies providing primaiy medical malpractice coverage to Kansas health care providers.
Generally, a contract entered into by an agent of a governmental entity is binding on the entity. However, to the extent the contract exceeded the scope of the governmental entity’s power, the contract is unlawful, unenforceable, and void. Templeton v. Kansas Parole Board, 27 Kan. App. 2d 471, 473-74, 6 P.3d 910 (2000). A party contracting with a governmental entity is presumed to know the scope of the entity’s authority, and, when a governmental agent or entity acts outside the scope of its authority, or ultra vires, no ratification or estoppel can legitimize the exercise of such authority. Blevins v. Board of Douglas County Comm’rs, 251 Kan. 374, 383-84, 834 P.2d 1344 (1992); Red Dog Saloon v. Board of Sedgwick County Comm'rs, 29 Kan. App. 2d 928, 930, 33 P.3d 869 (2001), rev. denied 273 Kan. 1036 (2002).
The Fund is a creation of the legislature, and its payments are controlled entirely by statute. Consequently, a determination of the Fund’s authority necessarily involves an interpretation of the applicable statutes. The interpretation of statutes is a question of law subject to unlimited appellate review. Dickerson v. Schroeder, 281 Kan. 661, 663, 132 P.3d 929 (2006).
Express Authority
Initially, ROC argues the Fund had express authority pursuant to K.S.A. 2006 Supp. 40-3403(a) to enter into the letter agreement.
While K.S.A. 2006 Supp. 40-3403(a) does address the Fund’s authority to contract, it concerns only the Fund’s authority to contract wifh an insurance company to administer the Fund. The letter agreement at issue in this case did not authorize Western Indemnity to administer the Fund. Rather, the agreement settled a malpractice claim and required the Fund to pay a specified portion of that settlement in the event of an unfavorable declaratory judgment as to the coverage issue.
We conclude the Act does not expressly address the Fund’s ability to negotiate an agreement with an insurance carrier when a dispute concerning the applicable policy limits of tire primary malpractice insurance arises between the Fund and the insurance carrier.
Implied Authority
Alternatively, ROC contends the Fund had implied authority to enter into the letter agreement.
Although the Fund is not an administrative agency, it derives its power exclusively from its enabling Act, the Health Care Provider Insurance Availability Act, K.S.A. 40-3401 et seq. Therefore, like an administrative agency, the Fund has no general or common-law power, and any exercise of authority claimed by the Fund must come from within the statutes, either expressly or by clear implication. See State ex rel. Secretary of S.R.S. v. Fomby, 11 Kan. App. 2d 138, 141, 715 P.2d 1045 (1986).
In urging us to find the Fund had implied authority for its actions, ROC relies upon K.S.A. 2006 Supp. 40-3403(b)(l)(A). That statute provides the Fund’s board of governors with the authority to “[ajdminister the fund and exercise and perform other powers, duties and functions required of the board under the [Act].” Similarly, K.S.A. 2006 Supp. 40-3403(b)(6) permits the Fund to employ attorneys and other personnel to assist with the execution of the Fund’s powers, duties, and functions.
Pursuant to K.S.A. 40-3408 and K.S.A. 40-3410, the Fund possesses the authority to negotiate a settlement with a malpractice claimant only after the insurance carrier has agreed to settle for the policy limits and the claimant’s demand for damages exceeds the policy limits, impheating the excess coverage of the Fund. Clearly, before the Fund may determine whether to settle a claim or to assume the defense of the health care provider, the Fund must ascertain the applicable policy limits under the primary malpractice insurance policy or policies. Thus, by necessary implication, the Fund must be authorized to negotiate or litigate a resolution of a dispute between the Fund and the insurance carrier concerning the applicable policy limits.
When insurance coverage is disputed by two or more insurance carriers but the underlying validity of the claim is not disputed, insurance carriers will often agree to settle with the claimant but reserve the right to seek a declaration of rights between or among insurance carriers. See generally Layne Christensen Co. v. Zurich Canada, 30 Kan. App. 2d 128, 131, 38 P.3d 757 (2002). Essentially, the agreement between Western Indemnity and the Fund amounted to such a reservation of rights. We conclude the Fund had the implied authority pursuant to K.S.A. 2006 Supp. 40-3403(b)(1)(A) to enter into an agreement with the claimant’s insurer to seek a declaration of rights as to the applicable policy limits of the insurer.
Nevertheless, while the Fund may generally be authorized to enter into an agreement contractually postponing a determination of the Fund’s liability, the specific nature of the agreement presented in this case violates a clear mandate of die Act. As noted, K.S.A. 40-3410 provides a specific procedure for the settlement of any malpractice claim impheating the Fund. In material part, the statute provides:
“When the insurer of a health care provider . . . covered by the fund has agreed to settle its liability on a claim against its insured . . . and the claimant’s demand is in an amount in excess of such settlement, ... or where it would otherwise be in the best interest of the fund, the claimant and the board of governors may negotiate on an amount to be paid from the fund.” (Emphasis added.)
Because the Fund clearly possesses an interest in the setdement of an undisputed malpractice claim, even when the policy limits are uncertain, the setdement procedure of K.S.A. 40-3410 applies even in this context. Under die statute, the medical malpractice claimant must file a petition seeking approval of the setdement with the court in which the action is pending, or, if no action is pending, in a court of competent jurisdiction. K.S.A. 40-3410(a). The court then sets a healing and provides notice to the claimant, the health care provider, and the Fund. K.S.A. 40-3410(b). Following the hearing, the district court must approve the setdement if the court determines the settlement to be “valid, just and equitable.” K.S.A. 40-3410(c); see Miller v. Sloan, Listrom, Eisenbarth, Sloan & Glassman, 267 Kan. 245, 251, 978 P.2d 922 (1999); Haley v. Brown, 35 Kan. App. 2d 761, 764, 135 P.3d 169 (2006) (“When a settlement involves the Fund, it is considered a proposed settlement until the court approves it.”).
This statutory requirement that the court approve any settlement involving the Fund is analogous to the requirement that the district court approve the parties’ settlement agreement in a divorce case if it finds the agreement to be “valid, just and equitable.” See K.S.A. 60-1610(b)(3). In that context, this court has held that “ 'mere agreement by the parties does not vitiate the court’s duty to scrutinize the settlement agreement, and if the agreement is not valid, just and equitable, the court should reject or alter it.’ ” In re Marriage of Kirk, 24 Kan. App. 2d 31, 34, 941 P.2d 385, rev. denied 262 Kan. 961 (1997) (quoting 1 Elrod, Kansas Family Law Handbook § 11.032B [rev. ed. 1990]).
In agreeing that the $1,200,000 settlement was “reasonable” and that the Fund would reimburse Western Indemnity $800,000 in the event a court declared that Policy No. 73 did not provide coverage to Dr. White in Kansas, the Fund effectively circumvented the specific requirements of K.S.A. 40-3410 for approval of the settlement by the court. Thus, with this agreement, the Fund exceeded the scope of its authority and acted ultra vires.
Therefore, we conclude the Fund has the implied authority to enter into an agreement with an insurance carrier to seek a declaration of rights under applicable insurance policies. Such a procedure is warranted by die Fund’s authority pursuant to K.S.A. 2006 Supp. 40-3403(b)(l)(A) to execute the powers, duties, and functions of the Fund. However, the exercise of such authority must be conducted within the parameters provided by the Act. Because K.S.A. 40-3410 requires court approval of the settlement agreement if the settlement implicates die Fund, the Fund’s attorney acted without authority in contractually obligating the Fund to pay a portion of the settlement absent such court approval.
Approval by court of appropriate jurisdiction
In addition to acting outside of its authority by agreeing to reimburse the insurer for a portion of its settlement witii the claimant without district court approval of the settlement, the Fund also acted ultra vires to the extent the parties agreed to seek an extra-jurisdictional determination of the Fund’s liability.
As noted, the letter agreement did not specifically designate that Western Indemnity must seek a declaratory judgment interpreting Policy No. 73 in a Kansas court. Thus, the agreement contemplated that Western Indemnity or ROC could seek enforcement of this contract by producing evidence of a declaratory judgment from a court lacking jurisdiction over the Fund.
This contravenes the Act’s specific requirement that a court of competent jurisdiction ultimately determine the liability of the Fund for malpractice claims against health care providers performing services within Kansas. See K.S.A. 40-3410(a) (mandating that claimant file a petition for settlement in “a court of appropriate jurisdiction”).
To the extent a settlement or judgment imposes financial liability on the Fund, a “court of appropriate jurisdiction” means a court with subject matter jurisdiction and personal jurisdiction over the parties, including the Fund. See In re Estate of Pritchard, 37 Kan. App. 2d 260, 269-70, 154 P.3d 24 (2007) (citing Carrington v. Unseld, 22 Kan. App. 2d 815, 817, 923 P.2d 1052 [1996]). Therefore, if the Fund contractually agreed to permit a Missouri circuit court, or any other court lacking jurisdiction over the parties, to determine the Fund’s financial responsibility for a portion of the setdement, the determination of the Fund’s liability was not made by a “court of appropriate jurisdiction.”
That is exactly what occurred here. ROC filed an action in the circuit court of Jackson County, Missouri, seeking a declaratory judgment as contemplated by the agreement. The Missouri court specifically ruled that it lacked personal jurisdiction over the Fund when it dismissed the Fund from that action. Nevertheless, the Missouri court proceeded to enter a declaratory judgment reforming the agreement between the parties so that the policy excluded coverage for medical negligence occurring in Kansas. ROC then attempted to enforce the letter agreement by bringing this breach of contract action in Kansas.
Because the Act requires the Fund’s liability to be determined by a court with personal jurisdiction over the Fund, the agreement circumvented this requirement and was ultra vires. Accordingly, the district court’s determination that the letter agreement was ultra vires is further supported by the fact that the agreement did not require a court of competent jurisdiction to determine the Fund’s liability.
We therefore conclude that the letter agreement of August 16, 2000, was ultra vires and unenforceable, and the district court appropriately granted summary judgment to the Fund on ROC’s breach of contract claim, which was based upon the letter agreement.
Did the district court improperly conclude that a claim for statutory liability was barred by the applicable statute of limitations ?
ROC additionally challenges the district court’s ruling that a claim for statutory liability against the Fund would have been barred by the applicable statute of limitations. As ROC concedes, the district court did not resolve the summary judgment motion on the basis of the statute of limitations for a claim of statutory liability. Rather, the court found ROC’s only claim in this action was for breach of contract, and that claim was made within the 5-year limitation period provided by K.S.A. 60-511(1).
However, the district court, in dicta, stated: “[I]f [ROC] had filed a proper claim alleging a statutory duty on behalf of KHSF to indemnify [ROC] for its settlement with the plaintiff in Winfrey, that claim, which would have arisen upon the settlement in September, 2000, would now be time-barred by the three-year statute of limitations, pursuant to K.S.A. 60-512(2).” ROC contends this determination was in error.
Without factual support or citation to authority, ROC asserts that the issue regarding the timeliness of ROC’s statutory liability claim is not moot. However, in its petition, ROC relied exclusively upon the alleged breach of the letter agreement between Western Indemnity and the Fund as the basis for its claim for relief. Thus, the district court properly interpreted ROC’s claim to arise out of contract and properly applied the 5-year limitations period of K.S.A. 60-511(1).
ROC’s challenge to the district court’s statement in dicta regarding the statute of limitations on the statutory claim is relevant only to the extent that ROC presented a claim against the Fund for statutory liability. While ROC did attempt to assert such a claim, it did so only after the district court had entered summary judgment in favor of the Fund on ROC’s breach of contract claim. At that point, ROC filed a motion to reconsider, requesting permission to amend its petition to include a claim for statutory liability pursuant to K.S.A. 40-3407. The district court, in ruling on the motion to reconsider, denied the request to amend the petition.
As the Fund points out, ROC does not argue on appeal that the district court abused its discretion in denying ROC’s request to amend the petition. An issue not briefed is deemed abandoned. Lee Builders, Inc. v. Farm Bureau Mut. Ins. Co., 281 Kan. 844, 859, 137 P.3d 486 (2006).
Therefore, we conclude we lack jurisdiction to consider ROC’s argument that the district court erred in finding that a claim for statutory liability, if raised, would have been barred by the applicable statute of hmitations, and we dismiss that claim. Further, we decline ROC’s invitation to render an advisoiy opinion as to the statute of limitations issue. See Rodarte v. Kansas Dept. of Transportation, 30 Kan. App. 2d 172, 183, 39 P.3d 675, rev. denied 274 Kan. 1113 (2002) (“ ‘ “The court is statutorily and constitutionally without authority to render advisory opinions in cases found to be moot. A case is moot when no further controversy exists between the parties and where any judgment of the court would be without effect.” ’ ”).
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Leben, J.;
Scott Dukes’ conviction for driving under the influence of alcohol was based upon the result of his alcohol breath test, which exceeded the legal limit. Such tests are reliable only if the testing machine is accurate; thus, the State presented evidence at trial that the machine had recently been calibrated and certified. Dukes also was convicted of driving while his license was suspended, a conviction dependent upon proof of the suspension. Dukes contends that proving proper calibration and certification of the machine — and his license suspension — without calling the witnesses who maintained his driving record and handled the calibration and certification process violated his constitutional right to confront the witnesses against him. Our review shows that most appellate courts have disagreed with Dukes’ fine of argument, and we do too.
These questions arise under the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004), which held that what the Court defined as testimonial hearsay statements generally could not be admitted without a witness to cross-examine based on the right of confrontation guaranteed in criminal trials under the United States Constitution. The Supreme Court further clarified what amounts to testimonial statements in Davis v. Washington, 547 U.S. 813, 165 L. Ed. 2d 224, 126 S. Ct. 2266 (2006), but substantial questions still remain about what testimony would trigger the protection of the Confrontation Clause. See generally State v. Brown, 285 Kan. 261, 173 P.3d 612 (2007); Wright & Graham, 30A Federal Practice & Procedure: Evidence § 6371.2-6371.3 (Supp. 2007).
Fortunately, the questions before us are narrow ones. We address separately the admission of both the records of the breath-test machine’s certification and Dukes’ driving record. Dukes’ sole argument on appeal is that the admission of this evidence violated his constitutional right to confront the witnesses against him; he has not claimed any other error in the admission of this evidence. For our purposes, we need to determine only whether the statements contained in these exhibits were testimonial under Crawford. See Davis, 547 U.S. at 823-26 (suggesting that Confrontation Clause requirements apply only to testimonial hearsay statements). In addition to resolving the defendant’s objection to the admission of this evidence, we address briefly two issues that both parties agree the district court failed to handle properly at sentencing.
The Admission without a Foundation Witness of Calibration Records for a Breath-Test Machine Does Not Violate the Confrontation Clause.
Dukes’ breath test was performed on a machine called the Intoxilyzer 5000. Before a person’s breath is tested, the machine is first checked using a solution with a known alcohol concentration. If the machine reading is within a limited range of the value of the known solution, it is considered properly calibrated and may be used. See Lincoln v. Kansas Dept. of Revenue, 18 Kan. App. 2d 635, 636-37, 856 P.2d 1357, rev. denied 253 Kan. 859 (1993).
The State presented the testimony of Deputy Jeff Bartkoski, the custodian for Intoxilyzer 5000 records at the Sedgwick County Sheriff s office. During his testimony, the State obtained admission — without objection — of a packet containing documents showing that the machine was properly certified, that the officer who tested Dukes was certified to run the machine, and that the standard solution used had the required known value. Verification of the standard solution came from a lab employee who did not testify.
Two procedural hurdles might prevent us from addressing Dukes’ objection. First, we held in Lincoln that evidence of the standard solution’s certification is not required to gain admission of the breath-test result. 18 Kan. App. 2d 635, Syl. ¶ 2. But neither party has cited the Lincoln case, and it is not clear to us whether Dukes’ challenge is limited just to the single page of the exhibit dealing with the standard solution or whether it also addresses the certification of the machine and its operator. Regardless, evidence of the test result is undoubtedly more persuasive to the jury when accompanied by evidence that all steps toward obtaining an accurate test result were taken — including certification of the solution used to calibrate the machine. For the purposes of this decision, we presume that Dukes is challenging the documents showing the certification of the machine, the machine operator, and the solution, and we will address Dukes’ challenge to the admission of those documents. Second, Dukes did not raise these objections at trial, and ordinarily we do not consider objections raised for the first time on appeal. Brown, 285 Kan. 261, Syl. ¶ 12. Kansas courts have recognized an exception to this rule when failure to consider the untimely objection might result in a denial of fundamental rights, an exception explicitly applied to allow claims under Crawford. E.g., Brown, 285 Kan. 261, Syl. ¶ 13; State v. Laturner, 38 Kan. App. 2d 193, 197, 163 P.3d 367 (2007). Because the defendant’s objection implicates his fundamental right to confront the witnesses against him, we will address it even though it was not raised at trial.
We move, then, to the merits of the defendant’s objection. We begin by noting that courts in 14 other jurisdictions have held that proof of the breath-test machine’s calibration or certification is not testimonial evidence and thus not subject to Confrontation Clause restrictions under Crawford. Abyo v. State, 166 P.3d 55 (Alaska App. 2007); Bohsancurt v. Eisenberg, 212 Ariz. 182, 129 P.3d 471 (Ct. App. 2006); Rackoff v. State, 275 Ga. App. 737, 621 S.E.2d 841 (2005); State v. Marshall, 114 Hawaii 396, 163 P.3d 199 (Ct. App. 2007), cert. denied 2007 WL 4358284, unpublished opinion (Hawaii December 13, 2007); People v. So Young Kim, 368 Ill. App. 3d 717, 859 N.E.2d 92 (2006); Rembusch v. State, 836 N.E.2d 979 (Ind. App. 2005); Commonwealth v. Walther, 189 S.W.3d 570 (Ky. 2006); State v. Carter, 326 Mont. 427, 114 P.3d 1001 (2005); State v. Fischer, 272 Neb. 963, 726 N.W.2d 176 (2007); State v. Godshalk, 381 N.J. Super. 326, 885 A.2d 969 (2005); Green v. DeMarco, 11 Misc. 3d 451, 812 N.Y.S.2d 772 (N.Y. Sup. Ct. 2005); People v. Kanhai, 8 Misc. 3d 447, 797 N.Y.S.2d 870 (N.Y. City Crim. Ct. 2005); State v. Shisler, 2006 WL 2846339, unpublished opinion (Ohio App. October 6, 2006); State v. Norman, 203 Or. App. 1, 125 P.3d 15 (2005), rev. denied 340 Or. 308 (2006); Luginbyhl v. Commonwealth, 46 Va. App. 460, 618 S.E.2d 347 (2005), aff'd 48 Va. App. 58, 628 S.E.2d 74 (2006). Similarly, the routine certification of an operator of a breath-test machine is not testimonial and thus not subject to Confrontation Clause restrictions. Napier v. State, 827 N.E.2d 565, 569 (Ind. App. 2005), transfer denied 841 N.E.2d 178 (Ind. 2005), cert. denied 546 U.S. 1215, 164 L. Ed. 2d 134, 126 S. Ct. 1437 (2006); Luginbyhl, 46 Va. App. at 468-75.
We have found only one appellate decision to the contrary. Shiver v. State, 900 So. 2d 615 (Fla. Dist. App. 2005). Other courts have not found Shiver persuasive: all but one of the other cases listed here were decided after Shiver.
Courts upholding admission of these records have emphasized that these records are routinely generated to ensure accurate testing on an ongoing basis, not to establish the facts in a specific case. E.g., Marshall, 114 Hawaii at 401; Bohsancurt, 212 Ariz. at 186-87. And although they “are prepared in anticipation of criminal litigation in a general sense, . . . they are not prepared in anticipation of litigation in a particular case.” Abyo, 166 P.3d at 60. These records — in purpose and in generation — are different from ones recording the specific alcohol content of the defendant’s breath.
In support of his position, Dukes cited State v. Caulfield, 722 N.W.2d 304 (Minn. 2006), in which the Minnesota Supreme Court found that a lab test report identifying a substance as cocaine was testimonial and thus subject to Crawford. We recently agreed in Latumer. But the drug-test results in Caulfield and Latumer are equivalent to Dukes’ own breath-test result, not to machine certification and calibration records. Those certification and calibration records are different in purpose and in generation from the record of Dukes’ specific test result.
Other courts that have approved the admissibility of this evidence have emphasized that the calibration documents were mandated by administrative rules and were created whether the machine was used for a specific test or not. E.g., Abyo, 166 P.3d at 59-60; Bohsancurt, 212 Ariz. at 187. The same is true here. K.S.A. 8-1020 provides that in administrative proceedings, breath tests may be challenged for failure to substantially comply with procedures set out by the Kansas Department of Health and Environment (KDHE), and K.S.A. 65-1,107 authorizes KDHE regulations for testing human breath for law-enforcement purposes. KDHE regulations provide the required procedures for certification of the machine, its operators, and the test solution used to check its calibration. See K.A.R. 28-32-1. And the calibration solution here was certified by a KDHE employee, not a law-enforcement officer.
The Crawford Court noted that business records are not necessarily testimonial. 541 U.S. at 56. We agree with the vast majority of courts that have determined that records showing certification or calibration of breath-test machines and operators are not testimonial and thus not subject to Crawford’s requirement that a witness be produced for cross-examination.
The Admission without a Foundation Witness of a Defendant’s Driving Record Does Not Violate the Confrontation Clause.
Fewer courts have addressed whether under Crawford a defendant’s driving record may be introduced by documents and without a witness to cross-examine. Four jurisdictions have upheld the admission of a driving record through documentary exhibits against a Crawford challenge. See State v. King, 213 Ariz. 632, 146 P.3d 1274 (Ct. App. 2006), rev. denied April 17, 2007; Card v. State, 927 So. 2d 200 (Fla. Dist. App. 2006); State v. Davis, 211 Or. App. 550, 156 P.3d 93 (2007); State v. Kirkpatrick, 160 Wash. 2d 873, 161 P.3d 990 (2007); State v. Kronich, 160 Wash. 2d 893, 161 P.3d 982 (2007). But die Iowa Court of Appeals concluded that this would violate Crawford. State v. Shipley, 2007 WL 911894, unpublished opinion (Iowa App. March 28, 2007).
We find the proof of a defendant’s driving record to be much like the proof of Intoxilyzer certification. So did the Oregon Court of Appeals, which relied on its holding that breath-test certifications were nontestimonial to further determine that driving records were too: “Like Intoxilyzer certificates, and unlike crime lab reports, Oregon driving records are data compilations.” Davis, 211 Or. App. at 556. The Arizona Court of Appeals also found the situations analogous. King, 213 Ariz. at 637-38. The Oregon court noted that driving records are required by law, making their compilation “a ministerial duty having nothing to do with prosecuting a particular individual for criminal activity.” 211 Or. App. at 556. And just as Kansas law provided for the certification of breath-test machines whether or not they are used, it too provides for compilation of driving records whether or not they become relevant in a prosecution. K.S.A. 8-249. We find the driving record analogous to the Intoxilyzer-certification documents, and we conclude that the proof of a defendant’s driving record is nontestimonial evidence under Crawford.
While the Iowa court held that the driving record was testimonial, it did so solely because the record was prepared for introduction in the specific case against the defendant. Shipley, 2007 WL 911894, at *6. As our Supreme Court explained in Brown, no single factor is generally determinative on whether evidence is testimonial. 285 Kan. at 291. We do not find this factor significant with respect to the presentation of a person’s driving record.
The law requires that this data be compiled over time, and merely pulling the data from the computer system because of an upcoming trial does not change its nature. If this were a critical objection, the State could avoid it by automatically printing out the records of all drivers every day; it would then have an exhibit ready to introduce that was not prepared in anticipation of a specific trial. We do not believe that it makes a difference under Crawford whether the State seeks to introduce an exhibit of one page containing only Scott Dukes’ driving record rather than introducing an exhibit automatically printed each day or month consisting of hundreds of thousands of pages comprising the driving record of all residents of Sedgwick County. Such is the value of computers— we can limit the information we get to what’s relevant to us.
We note that our ruling does not preclude a defendant from issuing a subpoena to gain the attendance of a witness who may be examined regarding any legitimate concerns. We have addressed only the issue before us — whether the presentation of such records without a witness violates Crawford. It does not.
The Fine Imposed on Defendant Must Be Vacated Because the District Court Imposed More than the Minimum Fine without Making the Findings Required by K.S.A. 21-4607.
Dukes’ conviction for driving under the influence of alcohol was his third for that offense. Under K.S.A. 2006 Supp. 8-1567(f), the district court was required to give him both a jail sentence of 90 days to 1 year and a fine of $1,500 to $2,500. The prosecutor at trial mistakenly told the judge at sentencing that the State was recommending “the $2,500 minimum fine.” The district judge adopted that fine as part of the sentence.
K.S.A. 21-4607(3) provides that when “determining the amount ... of a fine, the court shall take into account the financial resources of the defendant and the nature of the burden that its payment will impose.” Our court has held that when a court imposes more than the minimum fine under K.S.A. 8-1567(f), it must make explicit findings showing that it has considered the burden of the fine given the defendant’s financial resources. State v. Sargent, No. 95,814, unpublished opinion filed March 23, 2007; State v. Shuster, 17 Kan. App. 2d 8, Syl. ¶ 2, 829 P.2d 925 (1992).
The State concedes that the district court did not make any findings here demonstrating that it had complied with the requirement of K.S.A. 21-4607(3). We must therefore vacate the fine and remand for further consideration in compliance with that requirement.
The Imposition of Attorney Fees to Be Reimbursed by the Defendant Must Be Vacated Because the District Court Failed to Make the Findings Required by K.S.A. 22-4513.
The district court imposed two other financial obligations on Dukes at sentencing. First, the court required that Dukes reimburse the Board of Indigents’ Defense Services $375 in attorney fees for the court-appointed lawyer who represented Dukes. Second, the court required that Dukes pay a $100 application fee for requesting a court-appointed lawyer.
The Supreme Court held in State v. Robinson that under K.S.A. 2006 Supp. 22-4513(b) a sentencing court assessing attorney fees must provide an on-the-record consideration of the financial resources of the defendant and the burden of a fee assessment on the defendant. 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 (2006). The State concedes that the district court did not comply with this statute as interpreted in Robinson. We must therefore vacate the assessment of attorney fees and remand for further consideration in compliance with that statute and Robinson.
The assessment of the application fee presents a different question because K.S.A. 2006 Supp. 22-4529 requires the imposition of that fee absent manifest hardship, for which the district court may waive payment. This court held in State v. Hawkins, 37 Kan. App. 2d 195, 200-01, 152 P.3d 85 (2007), aff'd 285 Kan. 842, 176 P.3d 174 (2008) that the defendant has the burden to demonstrate hardship. Dukes did not request waiver of the fee, claim hardship, object to assessment of the fee, or present any information about his financial resources. In these circumstances, the district court’s imposition of the application fee was proper.
Conclusion
The imposition of a $2,500 fine and the assessment of $350 in attorney fees are vacated, and the matter is remanded for further consideration of those matters consistent with this opinion. The judgment of the district court is otherwise affirmed, including the convictions of the defendant for driving under the influence of alcohol and driving with a suspended license. | [
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Green, J.:
James A. Penn appeals from the trial court’s judgment denying his K.S.A. 60-1507 motion. Penn argues that our Supreme Court’s denial of his appellate counsel’s request to file a petition for review out of time should not bar his postconviction motion alleging ineffective assistance of counsel based on counsel’s failure to timely file a petition for review. We agree. Accordingly, we reverse, and Penn, if he wishes to do so, may file a petition for review with our Supreme Court if the petition is filed within 30 days of the mandate issued in this appeal.
In 1999, a jury convicted Penn of one count of first-degree murder, two counts of attempted aggravated robbery, one count of aggravated assault, and one count of criminal possession of a firearm. He was sentenced to life imprisonment plus 192 months. Penn’s convictions were affirmed by our Supreme Court in State v. Penn, 271 Kan. 561, 23 P.3d 889 (2001).
In 2003, Penn moved under K.S.A. 60-1507, alleging prosecutorial misconduct. Penn later voluntarily withdrew the motion. In 2004, Penn moved a second time under K.S.A. 60-1507. He again claimed prosecutorial misconduct, but he also alleged that his trial and appellate counsel were ineffective. The trial court denied the motion after determining that it was successive. This court affirmed the trial court’s decision in Penn v. State, No. 94,231, unpublished opinion filed May 5, 2006. Before this court issued its ruling, however, Penn’s counsel moved to withdraw.
On May 9, 2006, this court allowed counsel to withdraw, remanded the case for appointment of new appellate counsel, and stayed issuance of the mandate pending notice of appointment of new appellate counsel.
On May 15, 2006, new appellate counsel was appointed and the following day this court lifted the stay on issuance of the mandate. Because new counsel neglected to file a petition for review to our Supreme Court, within the 30-day required time limit under Supreme Court Rule 8.03(a)(1) (2006 Kan. Ct. R. Annot. 62), the mandate was issued on June 8, 2006. On June 13, 2006, Penn’s appellate counsel moved to file a petition for review out of time, expressing confusion about the effect of the stay and accepting full responsibility for misinterpreting this court’s order. Our Supreme Court denied the motion.
On August 1, 2006, Penn moved a third time under K.S.A. 60-1507. He asserted that his appellate counsel was ineffective for failing to timely file a petition for review.
The trial court appointed counsel and held a nonevidentiary hearing on the motion. In setting out its reasons for rejecting Penn’s argument, the judge stated:
“I will make a finding that [Penn] has been denied due process of law under the particular facts and under the Kansas Constitution, United States Constitution, then rale that the ruling of the Supreme Court on the motion to reconsider or motion to file out of time and the other motions put the case in a situation where I have no jurisdiction. That would put me reviewing opinions and decisions by the Supreme Court of Kansas.
“Therefore, for that reason, and no other, I cannot grant any relief other than to make the finding he has been denied due process of law. That should put it in a posture where it can be reviewed. My decision can be reviewed by the Supreme Court. They, of course, can do anything they want to do with their own rulings and opinions. I cannot.”
Did the Trial Court Err in Determining That It Lacked Jurisdiction to Grant Penn Relief?
Penn alleges that the trial court erred in denying his K.S.A. 60-1507 motion and motion for recusal. Penn argues that the ineffectiveness of his counsel in failing to timely petition for review is evidenced by the trial court’s finding that a due process violation had occurred.
The trial court shall hold an evidentiary hearing on a K.S.A. 60-1507 motion and make findings of fact and conclusions of law with respect thereto, unless the motion and the files and records of the case conclusively show the movant is not entitled to relief. K.S.A. 60-1507(b); Supreme Court Rule 183(f) and (j) (2006 Kan. Ct. R. Annot. 227). The burden is on a movant to allege facts sufficient to warrant a hearing on a 60-1507 motion. Supreme Court Rule 183(g); Woodberry v. State, 33 Kan. App. 2d 171, 173, 101 P.3d 727, rev. denied 278 Kan. 853 (2004).
In the present case, the trial court held that it lacked jurisdiction based on our Supreme Court having considered and denied the request by Penn’s counsel to file a petition for review out of time. Similarly, the State argues on appeal that this court does not have jurisdiction to enter an order forcing our Supreme Court to consider Penn’s petition for review. The State’s argument assumes, like the trial court did, that because Penn’s counsel essentially raised the issue of his ineffectiveness, by accepting full responsibility for misinterpreting the stay order in the request to petition for review out of time, the denial of that motion bars relief under Penn’s 60-1507 motion based on the principles of res judicata.
The trial court and the State’s reasoning has merit. The doctrine of res judicata is based on the idea that when a cause of action has once been litigated to a final judgment, it is conclusive on the parties in any later litigation involving the same action. This principle has been applied to questions of jurisdiction. See Baldwin v. Iowa State Traveling Men’s Association, 283 U.S. 522, 524, 75 L. Ed. 1244, 51 S. Ct. 517 (1931).
Nevertheless, in Fowler v. State, 37 Kan. App. 2d 477, 154 P.3d 550 (2007), we held that this court’s denial of Fowler’s motion to docket an appeal out of time did not bar his later 60-1507 motion requesting the same relief. In so holding, this court stated:
“When the motions panel of this court acts on a motion to docket an appeal out of time, the court is empowered to impose the sanction of dismissal in its discretion as a matter of rule enforcement; in other words, if the 21-day docketing requirements of Supreme Court Rule 2.04 (2006 Kan. Ct. R. Annot. 11) are not met, this court may dismiss the appeal as untimely docketed without regard to any substantive arguments that may be presented by the movant. In fact, any number of bases may serve to support a discretionary denial of a motion to docket an appeal out of time including the degree of untimeliness, the contemporaneous failure to observe other docketing requirements, failure to follow Supreme Court Rule 5.051 (2006 Kan. Ct. R. Annot. 34) after dismissal by the district court, a summary belief that the appeal lacks merit, or a general concern for judicial economy.
“Accordingly, a motion to docket an appeal out of time is not necessarily denied based upon the arguments contained in the motion itself but, rather, may be denied pursuant to this court’s independent responsibility to enforce the appellate rules. Accordingly, a determination of the issues raised by a motion to docket an appeal out of time is not necessary to support the denial by this court of a motion to docket an appeal out of time and, therefore, does not serve to bar the relitigation of the issues raised in a subsequent 60-1507 motion, despite the finality of the prior proceeding.” 37 Kan. App. 2d at 481.
Similarly, a motion filed with our Supreme Court to file a petition for review out of time is not necessarily denied based upon the arguments contained in the motion itself. To illustrate, Supreme Court Rule 8.03(f) (2006 Kan. Ct. R. Annot. 64) states: “The denial of a petition for review of a Court of Appeals’ decision imports no opinion on the merits of the case.” Likewise, our Supreme Court’s denial of the request by Penn’s appellate counsel to file an untimely petition for review was not a judgment on the merits. Obviously, if a denial of a petition for review is not on the merits, a denial of a request to file an untimely petition for review must also not be on the merits. See Laymon v. State, 280 Kan. 430, 439, 122 P.3d 326 (2005) (“[T]he district judge . . . was incorrect in overinterpreting our decision to deny Laymon’s petition for review.”).
Before a judgment is given conclusive effect, it must be on the merits. See Fowler, 37 Kan. App. 2d at 480. (Issue preclusion occurs when a parly can show that the issue was determined by a prior judgment on the merits.). Consequently, in denying the motion by Penn’s counsel to file the petition for review out of time, our Supreme Court did not necessarily determine the merits of the issues raised in that motion. Therefore, our Supreme Court’s denial of the motion does not bar relitigation of the issues raised in a later 60-1507 motion or prevent the trial court from having jurisdiction over the same.
Our Supreme Court has held that Kansas law provides indigents in K.S.A. 60-1507 proceedings with a statutory right to counsel. “When counsel is appointed by the court in postconviction matters, the appointment should not be a useless formality.” Brown v. State, 278 Kan. 481, 484, 101 P.3d 1201 (2004). In Brown, our Supreme Court held that appointed counsel’s failure to timely notify the movant of the denial of his K.S.A. 60-1507 motion and of his right to appeal the motion’s denial results in a denial of the movant’s statutory right to competent counsel, entitling him to file a motion to appeal out of time of the original motion. 278 Kan. at 484-85.
In Swenson v. State, 284 Kan. 931, 169 P.3d 298 (2007), our Supreme Court considered the denial of Nathaniel L. Swenson’s pro se K.S.A. 60-1507 motion. Swenson’s appellate counsel filed a petition for review 1 day out of time. Our Supreme Court later denied Swenson’s motion to file a petition for review out of time. Swenson moved under K.S.A. 60-1507, alleging ineffective assistance of trial and appellate counsel. The trial court and the Court of Appeals both rejected Swenson’s argument concerning his ineffective assistance counsel claim involving the late filing of the petition for review. Nevertheless, the Swenson court held that Swenson had been denied his statutory right to effective assistance of counsel.
In so holding, the Swenson, court stated that “there was no waiver of the right to file a petition for review” when “counsel attempted to file the petition but did so 1 day after the jurisdictional time limit.” 284 Kan. at 936. Similarly, Penn’s counsel attempted to file a petition for review after the jurisdictional time limit had expired. In determining that Swenson was denied effective assistance of counsel, our Supreme Court declared: “[W]here appellate counsel attempted to file a petition but did so 1 day late, the record allows us to conclude without remand that Swenson was denied effective assistance of counsel.” 284 Kan. at 937.
As a result, we can conclude without remand that Penn was denied effective assistance of counsel by his counsel’s failure to timely file a petition for review. See State v. Phinney, 280 Kan. 394, Syl. ¶ 7, 122 P.3d 356 (2005) (remand to the trial court is unnecessary where the record on appeal is factually and legally sufficient to support a determination that an Ortiz exception applies).
The trial court erred in determining that it lacked jurisdiction to grant relief under Penn’s 60-1507 motion. Clearly, Penn was denied effective assistance of counsel when his appellate counsel failed to timely file a petition for review. Penn should have been allowed to file a petition for review with our Supreme Court. Based on our decision, Penn’s remaining issues are moot.
Reversed. | [
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Knudson, J.:
Plaintiff Jeffeiy Gilmore (Gilmore) appeals the district court’s grant of summary judgment in a garnishment action brought against Colony Insurance Company (Colony). Gilmore had successfully sued Beach House, Inc. (Beach House) for personal injuries sustained on its premises. Colony insured Beach House. Under an assignment and covenant not to execute between Gilmore and Beach House, garnishment proceedings were commenced against Colony. The district court granted summary judgment to Colony. The central issue on appeal is whether Colony was entitled to litigate the coverage issue because it declined to defend Beach House in the tort case.
We affirm. Under the circumstances shown by the record, Colony had no duty to defend its insured in the underlying tort case nor was there coverage in the insuring agreement for Gilmore’s injuries caused by a battery.
Underlying Circumstances
The parties agree the liability insurance policy issued by Colony is unambiguous and does not provide coverage for injuries arising as the result of a battery. In addition, the underlying facts are not in material dispute.
In the early morning hours of January 8, 2005, Gilmore left Beach House, a gentlemen’s establishment located in Derby, Kansas. Gilmore was intoxicated, and upon leaving the club, he was intentionally shoved from behind by another individual. Gilmore slipped and fell on the club’s icy steps, hitting his head on the concrete.
On April 12, 2005, Gilmore’s counsel notified Beach House by letter that Gilmore was asserting a claim against the business for his injury. The letter provided: “The front steps of your business were laden with ice, and dangerous .... When Mr. Gilmore left the front doors of your business, another patron shoved him. Mr. Gilmore slipped on the steps and fell, struck his head against one of the concrete steps, and sustained a closed head injury.”
At the time of Gilmore’s January 8, 2005, injury, Beach House was insured by Colony under a general commercial insurance policy, which provided liability coverage for “bodily injuiy,” “property damage,” or “personal and advertising injury” arising out of or resulting from the ownership, maintenance, or use of the premises. The policy contained the following “Assault and Battery Exclusion”:
“This insurance does not apply to damages or expenses due to ‘bodily injury’, ‘property damage’ or ‘personal and advertising injury’ arising out of or resulting from:
“(1) Assault and Battery committed by any person;
“(2) The failure to suppress or prevent assault and battery by any person;
“(3) The failure to provide an environment safe from assault and battery or failure to warn of the dangers of the environment which could contribute to assault and battery;
“(4) The negligent hiring, supervision, or training of any person;
“(5) The use of any force to protect persons or property whether or not tire ‘bodily injury’ or ‘property damage’ was intended from the standpoint of the insured or committed by or at the direction of the insured.”
Following an investigation, Colony determined that it did not owe Beach House defense or indemnity obligations based on the assault and battery exclusion, and so informed Beach House.
On October 26, 2005, Gilmore sent Colony a settlement brochure and demand, along with the police report and Gilmore’s medical records related to the incident at Beach House. Colony thereafter informed Gilmore of its previous denial of coverage and reiterated its denial based on the assault and battery exclusion.
On December 7,2005, Gilmore filed a negligence action against Beach House, alleging in part that Beach House had failed to remove the snow and ice from its steps and knew or should have known that the presence of ice on the steps would likely result in a slip and fall accident. Gilmore also alleged that Beach House failed to watch and monitor the behavior of the individual who shoved him. It is apparent these allegations were leveled to counter any representation by Colony that it owed no duty to defend Beach House or provide liability coverage.
After being served with Gilmore’s petition, Beach House made demand upon Colony to defend the club in the pending litigation and to indemnify the club for any judgment entered against it in the litigation. Beach House also filed an answer denying Gilmore’s claims. After reviewing the demand for coverage and conducting further investigation into Gilmore’s allegations, Colony again denied Beach House’s demand for defense and indemnification, citing in part the policy’s assault and batteiy exclusion.
Thereafter, Beach House entered into an assignment and covenant not to execute with Gilmore, wherein Beach House assigned to Gilmore all of its rights under Colony’s insurance policy, including all of its rights against Colony for denial of coverage and failure to defend the underlying action. Gilmore and Beach House then entered into stipulations and agreed to entiy of a consent judgment. The stipulations included the following language:
“If this case were tried to a jury, it would find defendant 100% at fault for causing plaintiffs slip and fall injuries as a result of maintenance of a dangerous condition on its business premises, to wit: icy steps at the exit of its premises. The parties acknowledge that, under Kansas law, the intentional acts of the other alleged wrongdoer involved in this matter may not be compared with those of defendant.”
Judgment was entered against Beach House in the amount of $250,000 plus costs, and garnishment proceedings were subsequently commenced against Colony for the full amount of the judgment.
The parties filed competing motions for summary judgment. Gilmore argued that Colony was liable because his slip and fall on Beach House’s icy steps was an “occurrence” that fell within the general terms of the insurance policy and that no exclusions applied. Gilmore further alleged that Colony was bound by the underlying consent judgment finding Beach House hable for negligence. Conversely, Colony argued that it was not bound by the underlying judgment and that Gilmore was not entitled to coverage based on the assault and battery exclusion.
Following a hearing on the matter, the district court granted Colony’s motion for summary judgment and denied Gilmore’s motion. In so holding, the court relied on the following language in First Financial Ins. Co. v. Bugg, 265 Kan. 690, 699, 962 P.2d 515 (1998): “[A]n assault and battery exclusion in an insurance policy excludes coverage of any damages arising out of an assault and battery as a matter of law, even if the legal theory under which the insured is found hable is negligence . . .” The district court stated:
“In the present case, Mr. Gilmore is attempting to recover from the insurance company as a result of the consent judgment, whereby Michelle’s Beach House agreed to liability under a negligence theoiy. The Court finds that the initial battery to Mr. Gilmore is what set in motion the events which culminated in his injuries. Put another way, Mr. Gilmore would never have brought the negligence action absent the batteiy.
“Therefore, the Court finds as a matter of law that Mr. Gilmore’s injuries arose out of the batteiy, and as a result, coverage is excluded in light of the assault and batteiy exclusionary clause in the insurance policy.”
Discussion of Legal Issues Presented
Gilmore argues the district court erred in entering summary judgment in favor of Colony. Specifically, Gilmore contends that because Colony refused to defend Beach House in the underlying action, it was bound by the consent judgment and collaterally es-topped from alleging that coverage was excluded based on the assault and battery exclusion. Gilmore alleges that the district court “look[ed] behind the judgment” in denying coverage based on the assault and battery exclusion.
The summary judgment standard of review is well known:
‘Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summaiy judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summaiy judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summaiy judgment must be denied.’ ” [Citation omitted.]’ [Citations omitted.]” Korytkowski v. City of Ottawa, 283 Kan. 122, 128, 152 P.3d 53 (2007).
Additionally, whether the doctrine of collateral estoppel applies in a certain situation is a question of law. An appellate court’s analysis of that question is unlimited de novo review. State v. 1990 Lincoln Town Car, 36 Kan. App. 2d 817, 820, 145 P.3d 921 (2006).
In Kansas, an insurer’s duty to defend is broader than its duty to indemnify. Quality Painting, Inc. v. Truck Ins. Exchange, 26 Kan. App. 2d 473, 479, 988 P.2d 749 (1999). The duty to defend arises if there is a “potential for liability,” however remote, under the policy. Spivey v. Safeco Ins. Co., 254 Kan. 237, 245, 865 P.2d 182 (1993) (citing MGM, Inc. v. Liberty Mut. Ins. Co., 253 Kan. 198, 202, 855 P.2d 77 [1993]). “Under the present code of civil procedure, an insurer must look beyond the effect of the pleadings and must consider any facts . . . which it could reasonably discover in determining whether it has a duty to defend.” 254 Kan. at 245.
The duty to defend rests primarily on the possibility that coverage exists, and the possibility of coverage must be determined by a good faith analysis of all information the insurer may know or could reasonably have ascertained. Aselco, Inc. v. Hartford Ins. Group, 28 Kan. App. 2d 839, 847-48, 21 P.3d 1011, rev. denied 272 Kan. 1417 (2001). Thus, the insurer determines if there is a potential of liability under the policy by examining the allegations in the complaint and considering any facts brought to its attention or which it could reasonably discover. “Where a petition alleges an act that is clearly not covered, for example, that the defendant acted willfully and intentionally, there would be no potential of liability under the policy for intentional acts.” Spivey, 254 Kan. at 245-46; see Casualty Reciprocal Exchange v. Thomas, 7 Kan. App. 2d 718, 720, 647 P.2d 1361, rev. denied 231 Kan. 799 (1982) (holding that if there is no coverage under the policy, there is no duty to defend).
Gilmore argues that Colony had a duty to defend based on language in the petition that Beach House negligently maintained the icy steps. Gilmore states that his petition alleged negligence and assault and battery as alternative theories.
However, a review of the petition indicates that Gilmore did not allege icy steps as an alternative cause of his fall. Rather, Gilmore alleged that while he was standing on icy steps in an intoxicated state, he was intentionally shoved from behind and then fell on the steps. Further, Colony immediately undertook an investigation into the matter upon receiving notice of Gilmore’s action against Beach House. The insurance company reviewed Gilmore’s claims, police reports, interviewed an independent witness, and determined that the assault and battery was the cause of Gilmore’s injuries, thereby excluding coverage. Indeed, the police and medical reports all referred to the incident as an “assault.” (It is apparent the push from behind is technically a battery.) Colony also claimed that the individual who shoved Gilmore had been arrested for aggravated battery.
As noted by the district court, “[w]hen a liability insurance policy contains an assault and battery exclusion, a negligence claim for injuries arising out of an assault and battery is irrelevant. An assault and battery exclusion clause is intended to exclude all claims arising out of an assault and battery.” Bugg, 265 Kan. 690, Syl. ¶ 5; see also State Farm Ins. Co. v. Gerrity, 25 Kan. App. 2d 643, 646, 968 P.2d 270 (1998), rev. denied 267 Kan. 887 (1999) (“[I]n ignoring the negligence claims made by the plaintiff in [Bugg], our Supreme Court reasoned that theories of liability are irrelevant when injuries occur from intentional acts. Therefore, an appellate court should not look to the specific theories of liability alleged but to the underlying cause of the injuries.”).
Based upon Gilmore’s petition and Colony’s investigation, Colony had no duty to defend Beach House in the underlying action based upon the assault and battery exclusion. Moreover, even if for the sake of argument, Colony did have a duty to defend, Gilmore would still not be entitled to prevail in this garnishment proceeding because Colony was not cofiaterally estopped from litigating the coverage issue.
Gilmore relies on Patrons Mut. Ins. Ass’n v. Harmon, 240 Kan. 707, 732 P.2d 741 (1987). In Patrons, our Supreme Court found that because the insurer had failed to provide its insured with a defense or reserve its rights under the policy, it was collaterally estopped from relitigating the issue of the insured’s intent in a subsequent action. 240 Kan. at 710.
Gilmore points to subsequent decisions which have affirmed Patrons for the proposition that “judgments entered on consensual stipulations are enforceable, have collateral estoppel effect and may not be collaterally attacked by an insurance carrier in garnishment proceedings.”
However, the Patrons holding was based on an examination of three questions: “Was the issue decided in the prior adjudication identical with the one presented in the action in question? Was there a final judgment on the merits? Was the party against whom the claim is asserted a party or in privity with a party to the prior adjudication?” 240 Kan. at 711.
Here, the issue regarding the assault and battery exclusion was clearly not decided in the prior adjudication. Although Colony was in privity with Beach House as its insurer, the prior adjudication and final judgment only involved Beach House’s liability for the icy steps. Indeed, the stipulation provided that “the intentional acts of the other alleged wrongdoer involved in this matter may not be compared with: those of the defendant.” The issue of the third party’s assault and battexy was not actually litigated in the underlying case, nor was the issue of coverage before the court. These circumstances distinguish the present appeal from the underlying circumstances in Patron. We hold Colony was not prevented from raising the assault and battery exclusion in this garnishment proceeding.
Additionally, we have previously held that a breach of the duty to defend does not deprive the insurer of coverage defenses:
“[T]he court’s actions in Patrons speak louder than its words. Despite the insurer’s earlier refusal to provide a defense, the court considered the insurer’s policy arguments and held that coverage was excluded.
“[W]e believe the cases decided to this point mean our Kansas Supreme Court would not adopt a bright line rule that insurers who fail to provide a defense and reserve their rights are inevitably equitably estopped from raising their coverage defenses. We are persuaded that an insured in [plaintiffj’s position should not automatically reap coverage without limits. Hartford is therefore free to argue in the district court that, despite the breach of its duty to defend and its failure to reserve rights, Aselco did not contract for coverage for this loss.” Aselco, 28 Kan. App. 2d at 851.
We conclude, Colony was not bound by the underlying consent judgment and the district court properly applied the assault and battery exclusion. Gilmore’s injury was therefore not covered under the policy. The district court did not err in granting summary judgment to Colony.
Affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by defendant from a conviction of the offense of driving an automobile on the highways of the state of Kansas while his operator’s license was suspended and revoked by the motor vehicle department of the state highway commission, and from the trial court’s order overruling his motion for new trial.
On July 13, 1961, complaint was filed by the county attorney of Ness county charging that on or about June 17, 1961, defendant unlawfully drove and operated a certain motor vehicle, namely, a 1961 Ford country sedan bearing 1961 Kansas license number NS-2162, upon a public highway while his operator’s license was suspended and revoked by the vehicle department of the state of Kansas.
A full jury trial was had and after the introduction of evidence, the trial court instructed the jury. We should perhaps pause to note that defendant’s third and fourth contentions of error in regard to such instructions cannot be considered by this court on appeal for the reason that all of the instructions were not brought before us either in the abstract or in the counter abstract.
The jury returned a verdict of guilty and the trial court entered judgment accordingly under G. S. 1961 Supp., 8-262, and this appeal followed. The statute in pertinent part reads:
“(a) Any person who drives a motor vehicle on any public highway of this state at a time when his privilege so to do is canceled, suspended or revoked shall be guilty of a misdemeanor and upon conviction shall be punished by imprisonment for not more than six (6) months and there may be imposed in addition thereto a fine of not more than five hundred dollars ($500).”
The record before us explains how it was discovered that defendant had driven his automobile. He reported to his insurance company that while he had been driving his car approximately four miles east and seven miles south of Ness City the car caught fire and he wanted to file a claim to recover on his insurance policy. During the trial an exhibit marked No. 3 was admitted into evidence over the objection of defense counsel. One of the grounds for the objection was that the exhibit was improperly certified and defendant urges that same point here as reversible error. The exhibit now before us consists of six sheets of photostat reproductions of certain documents which have all been stapled together. The first, or top sheet, appears to be a letterhead of the motor vehicle department of the state highway commission dated July 24, 1961, and bears the heading “certificate.” In the body thereof L. A. Billings, superintendent of the motor vehicle department of the state highway commission certified that the attached photostat copies of “Letters of Revocation” and “Abstracts of Convictions” relative to Myron Russell Harkness were true and correct copies of the originals on file in the records of the department. His signature affixed thereto was verified by a notary public.
The second attached sheet of the exhibit had a state highway commission heading with “Vehicle Department” printed thereunder and beneath this the title read “order of suspension of privileges to operate motor vehicle in Kansas” and in the body appeared the following:
The license was suspended on March 14, 1960, and could not be reinstated until September 30, 1961.
The third sheet was likewise on a state highway commission motor vehicle department form and was entitled, “abstract of record of conviction.” It showed:
Date of offense, March 2, 1960
Date of hearing, March 14, 1960
Date of sentence, March 28, 1960
Nature of offense committed, driving while license suspended and revoked.
The signature of Clyde E. Rurns, city judge of Ness City, was at the bottom thereof and this judge suspended and revoked the license of defendant (NS-1861) for the year 1960. We should perhaps explain at this point that sheet 2 in the exhibit is a copy of the notice sent to defendant based on this abstract of the record of conviction. Sheet 3 also contains a notation written in ink describing defendant’s station wagon and then written beneath are these words: “Check pink sheet for registration.”
The fourth sheet, like the second, appears to be a copy of a notice sent to Myron Russell Harkness wherein he was ordered to surrender his license because it had been revoked from September 30, 1959, due to his having been convicted in the police court of Eureka, Kansas, of driving under the influence of intoxicating liquor. This interpretation is further borne out by a letter dated October 12, 1959, (sheets 5 and 6) in regard to the same offense which had been sent from the motor vehicle department to Myron Russell Harkness. It showed that his driver’s license had been revoked at that time and that under no circumstances could he drive his car until a new driver’s license had been issued.
Defendant admits that under the certificate (sheet 3) the abstract of record of conviction was probably properly certified, as was the letter dated October 12, 1959, from the department to Harkness (sheets 5 and 6). It is apparent the sheets attached to the certificate are in reverse order to the sequence in which the incidents occurred.
Technically speaking, it would probably have been better for tihe superintendent of the motor vehicle department to have certified each sheet rather than stapling them together and making one overall certification. At least there could then have been no question whatsoever that the certificate covered each and every page. However, the five sheets were all properly stapled securely to the certificate and since the two orders of suspension of privileges to operate a motor vehicle (sheets 1 and 3) are notices to Harkness of the status of his operator’s license, we are unable to say that their inclusion was in any way prejudicial to the substantial rights of the defendant in this case so long as the record actually certified to and the admissions of the parties was sufficient, competent, substantial evidence for the jury to find and conclude that defendant’s driver’s license was suspended and revoked at the time he was driving the car immediately prior to the time it was destroyed by fire.
Defendant argues that because certain evidence was allowed in the case as to previous convictions, an inference of his guilt was created with the jury so as to prejudice the jury against him. We think this contention is not well taken for the reason that the crimes of which he had been convicted involved only infractions of the law causing his license to operate a motor vehicle on the highways of the state to be suspended or revoked. In order to show proper sequence of circumstances and conditions prior to the date defendant was charged, June 17, 1961, it was necessary to prove that his license had been revoked and for what reasons. This was part of the burden of the state in the prosecution of an offense of this kind and were we to follow defendant’s theory, the statute (G. S. 1961 Supp., 8-262 [a]) would be made meaningless and therefore of no force and effect.
A current Missouri license in defendant’s possession is of no benefit whatsoever to him under G. S. 1961 Supp., 8-258, which, in substance, provides that while a driver’s license is suspended and revoked under our act, a resident or nonresident cannot use a driver’s license issued by a foreign jurisdiction to operate a motor vehicle in this state.
We can find nothing in the record whereby defendant has sustained the burden which devolves upon him to make it affirmatively appear that his substantial rights have been prejudicially affected (G. S. 1949, 60-3317) and for that reason we are constrained to hold that the trial court did not err in any of the particulars complained of.
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the plaintiff in a tort action from the order of the trial court sustaining defendant’s motion for a directed verdict and overruling plaintiff’s motion for new trial.
Plaintiff, a mechanic, was in need of an automatic transmission for a 1948 Buick and on February 10, 1956, he telephoned the Neff Auto Salvage Company in Wichita and talked with W. M. Briley, manager of the salvage yard, with respect to purchasing such a transmission. As a result of the conversation plaintiff drove to the yard to make the purchase and upon arrival his trade-in transmission was unloaded from his truck in order that the replacement transmission could be loaded thereupon. However, a dispute arose over whether the difference between the transmissions should be $20.00, the price quoted by Briley to plaintiff over the telephone, according to plaintiff, or whether the difference should be $75.00 quoted by Neff to plaintiff. Briley and Neff took the position that $20.00 was the price for a standard transmission and not for an automatic transmission. A very heated argument followed. Plaintiff went out of the office, got into his truck and started to leave the premises but was detained by a car occupying the entrance to the yard. Neff left the office to wait on a customer and did not actually see what transpired after plaintiff’s departure from the office. While plaintiff was waiting to leave the premises through the gate, Briley, together with another employee of Neff, carried plaintiff’s trade-in transmission from their shop and threw it onto the rear end of plaintiff’s truck. The evidence is conflicting between plaintiff and defendant Neff as to whether plaintiff’s truck jumped backward and touched Briley at this point but an eyewitness, the wife of another customer at the salvage yard, saw Briley and the other employee put an object onto the back of plaintiff’s truck, she saw the truck jump backward, and saw that one of the men either jumped or was knocked backward, but he did not fall. He then went around, picked up something, she didn’t remember what it was, and hit the man in the truck.
It is not disputed that Briley in a managerial capacity lived in a trailer on Neff’s salvage yard and had a duty to wait upon customers after hours; he assisted with the work around the yard, such as taking parts off automobiles, and had authority to price parts; he was in charge of other employees who worked for Neff and if an altercation took place, he was to do whatever was necessary to take care of the altercation.
At the close of plaintiff’s testimony, Neff’s demurrer to plaintiff’s evidence was taken under advisement by the trial court. However, the next morning at the opening of court, the court announced that it was overruling the demurrer. At the end of all the evidence, Neff moved for a directed verdict and the trial court granted this motion and entered judgment in favor of defendant Neff. The trial then proceeded to judgment in favor of plaintiff and against defendant Briley, with which we are not concerned in this appeal.
The sole question presented by plaintiff’s appeal is whether the trial court erred in its order sustaining the motion for a directed verdict and judgment in favor of Neff.
Under our appellate procedure, it was necessary for Neff to move for a directed verdict after all the evidence was in to protect his right to appeal from the trial court’s previous ruling on his demurrer in the event of an adverse ruling on such motion for directed verdict and final judgment against him. (Ziegelasch v. Durr, 183 Kan. 233, 235-236, 326 P. 2d 295; Ogilvie v. Mangels, 183 Kan. 733, 736, 332 P. 2d 581; In re Estate of Rogers, 184 Kan. 24, 27, 334 P. 2d 830; McCarthy v. Tetyak, 184 Kan. 126, 132, 334 P. 2d 379; Weber v. Wilson, 187 Kan. 214, 215, 356 P. 2d 659.) As was stated in the very able discussion in the Weber case, Neff could have renewed his demurrer or moved for a directed verdict at the close of all the evidence for the reason that either would have achieved the same result.
This action revolves around the doctrine of respondeat superior, meaning “Let the master answer” [Black’s Law Dictionary, 4th ed., p. 1475], which is a familiar field of endeavor for this court. Plaintiff contends that after overruling the demurrer, the trial court could not thereafter sustain defendant’s motion for a directed verdict because the only evidence on behalf of defendant Neff that could have been considered would have tended to strengthen rather than weaken defendant’s testimony. In other words, the evidence could not be weighed by the trial court in passing upon such motion. He relies on Rule v. Cheeseman, Executrix, 181 Kan. 957, 317 P. 2d 472. However, in our present case the trial court was hesitant about ruling upon the demurrer, it took the same under advisement and delayed ruling thereon until the second day of trial, and during the trial on at least two occasions the court stated that the question was very close, and finally, ruled:
“The Court is of the opinion that under the decision as set down in 84 Kan. 19 that the plaintiff has failed to establish either by the evidence of the plaintiff or the defendant that at the time of the alleged assault that the defendant Briley was within the scope of his employment but was acting in a personal manner, therefore, the motion for a directed verdict should be and the same is hereby sustained.
In Crelly v. Telephone Co., 84 Kan. 19, 113 Pac. 386, cited by the trial court in the above quotation, the local manager of the telephone company violently assaulted and beat plaintiff when she refused to sign a voucher for compensation at the termination of her services. The standard laid down in that case was whether the injury complained of was committed by the authority of the master, expressly conferred or fairly implied, in the nature of the employment and the duties incident thereto (p. 23) and it was held the acts of the manager were not within the scope of his employment and the telephone company was not liable for the assault and battery.
Another case to which our attention is called is that of Kastrup v. Yellow Cab and Baggage Co., 129 Kan. 398, 282 Pac. 742. Plaintiff was hired as a driver by the cab company superintendent, who had authority to hire and discharge drivers, but plaintiff could not post the required cash deposit of $15.00 to secure the cab company against loss for careless driving and his postdated check was accepted by the superintendent in lieu thereof. Following an accident and a conversation plaintiff had with the cab company secretary and the superintendent, plaintiff stopped payment on the postdated check and the superintendent committed an assault and battery upon plaintiff because he would not make the check good. This court therein stated how the case was decided by use of the following language:
“In this case the court holds that, given the two facts, authority of Harris to collect from Kastrup the amount of Kastrup’s check, and assault and battery by Harris to compel Kastrup to pay, there is no reasonable ground for disagreement that authority to collect did not carry with it implied authority to assault and beat." (p. 412.)
Applying the above language to our present case, we hold that given the two facts, authority of Briley as manager to do the things heretofore set out and to assist in loading plaintiff’s trade-in transmission back onto his truck, and the assault and battery by Briley which resulted when plaintiff backed up his truck and enraged Rriley to the point that he picked up an upright bar from a Ford bumper to carry out the assault and battery, there is no reasonable ground for disagreement that his authority in a managerial capacity did not include authority to commit the assault and battery complained of.
In the Weber case, supra, plaintiff contended as does plaintiff here that the trial court after overruling the demurrer, could not then sustain a motion for directed verdict, and it was there stated:
“. . . in the course of a trial the court is privileged to change its ruling, and indeed it ought always to do so if or when, upon more reflection or in the further progress of the lawsuit, it discovers that its earlier ruling was incorrect. . . ” (p. 215.)
We might add that the trial court is not only privileged but it has the duty to change such a ruling if the change is in furtherance of justice.
From the over-all record before us and the authorities discussed we are unable to say that plaintiff has shown any reversible error on the part of the trial court either in sustaining the motion for a directed verdict and in entering judgment in favor of Neff, or in refusing to grant plaintiff a new trial on that issue.
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The opinion of the court was delivered by
Wertz, J.:
This was an action for damages brought by Michael Greenwood, a minor ten years of age, by and through his mother against his grandfather Everett Gardner and a Verna Hein. From an order of the trial court overruling defendant Gardner’s demurrer to plaintiff’s petition, defendant appeals. Verna Hein is not a party to this appeal.
It is not necessary to set out fully the allegations of the petition as the only portion challenged is that part upon which defendant Gardner’s liability is predicated.
The pertinent part of the petition alleges that on the date in question Michael Greenwood, plaintiff (appellee), age ten years, was visiting at the home of his grandfather Everett Gardner, defendant (appellant), hereinafter referred to as defendant. At five o’clock that afternoon defendant requested Michael to go with him on a drive in the country. The defendant drove the automobile east out of Augusta and then proceeded south on a township road. After entering the township road defendant stopped the automobile and requested the child to drive. Thereupon, Michael assumed the driver’s position behind the steering wheel and defendant assumed a sitting position on the extreme right-hand side of the automobile out of reach of the steering wheel, the accelerator and the brakes of the automobile. Michael proceeded to drive the automobile for four miles until he came to an intersection with an east-west township highway. This was a blind intersection. Michael could not see traffic coming from either the east or the west until he drove to the edge of the intersection. Plaintiff slowed the automobile before entering the intersection, and as he proceeded into the intersection the motor of the automobile died, or stalled, and the car was struck by a westbound vehicle driven by one Verna Hein, causing severe injuries to plaintiff Michael.
The petition further alleges
“iv.
“That said child at the time of said accident was of the tender age of 10 years, that he had no driver’s license, restricted or otherwise, that he was an inexperienced driver. That he was of such size and leg length that he must needs sit on the very edge of the seat of said automobile in order that his foot reach the accelerator and the brake. That said child was an inexperienced driver and was of such tender age as not to comprehend and know the danger of driving an automobile. That he was of such tender age with such lack of experience' and development that the entrustment of the driving of an automobile to him placed him in a position of danger. That said child drove into said intersection without any warning or instruction from the defendant Gardner and at defendant Gardner’s direction, consent, and acquiescence.
vm.
“That the following acts of misconduct and negligence of the defendant Gardner concurred with the said misconduct and negligence of the defendant Hein, they being also a proximate cause of said collision and the hereinafter related damage to said child:
“1. Giving over the driving to said automobile to said child knowing said child to be an unlicensed, inexperienced, unqualified driver of very tender age.
“2. Giving over the driving of said automobile to said child knowing the child to be physically incapable of using the brakes and accelerator in an effective manner.
“3. Being acquainted with said intersection and notwithstanding such fact directing and acquiescing in said child driving and following a course that went into said intersection without determining whether or not an automobile was coming toward said intersection from an east or west direction.
“4. Directing and permitting said child to drive said automobile when he knew, or should have known, said child was of such a very tender age as not to comprehend the risks and hazards of driving an automobile, and how to react and conduct himself when placed in a position of danger.
“ix.
“That as a result of the concurring misconduct and negligence of the defendants, plaintiff suffered the following injuries: . . .”
In his brief defendant admits that although the plaintiff alleges various acts of negligence upon the part of defendant Gardner, it is not asserted that such acts were or could have been a proximate cause of any damage to plaintiff except for the bare statement appearing in subparagraph VIII of the petition. We cannot agree with defendant’s contention.
G. S. 1949, 8-264 provides that no person shall permit a motor vehicle owned by him or under his control to be driven upon the highway by any person who is not licensed under the law, and G. S. 1949, 8-222 provides that every owner of a motor vehicle permitting a minor under the age of sixteen years to drive such vehicle upon the highway, or who furnishes such vehicle to such minor, shall be jointly and severally liable with the minor for any damages caused by the negligence of the minor in driving such vehicle. The effect of the mentioned statutes is to render any person not licensed or under the minimum statutory age conclusively incompetent to drive a vehicle on the public highways of this state.
The petition alleges negligence in turning the automobile over to the ten-year-old incompetent child, and, in addition, it alleges continuing negligence in directing him to drive the automobile into the intersection, as aforesaid, and in failing to instruct and control the plaintiff child during the course of driving the car into the blind intersection.
Under our decisions the question of proximate cause is one of fact for the jury. In Rowell v. City of Wichita, 162 Kan. 294, 301, 176 P. 2d 590, we stated of course the negligence charged must have been the proximate or legal cause of the injury, and further stated what is a proximate cause is ordinarily a question for the jury. In Atherton v. Goodwin, 163 Kan. 22, 180 P. 2d 296, we stated the proximate cause of an injury is that cause which in natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury and without which the injury would not have occurred, the injury being the natural and probable consequence of the wrongful act. There is no precise formula for marking the line between proximate and remote consequences following a negligent act, and ordinarily, the questions of negligence, including proximate cause, and whether damages sought could have been foreseen or anticipated by the exercise of ordinary prudence and foresight, are for the jury.
In Flaharty v. Reed, 167 Kan. 319, 324, 205 P. 2d 905, we held each case must be decided largely on the special facts belonging to it and that the test of proximate cause is that which determines an injury to be the proximate result of negligence only where the injury is the natural and probable consequence of the wrongful act. In the mentioned opinion, after some discussion on concurrent and intervening causes, we said that if two distinct causes are successive and unrelated in operation, they cannot be concurrent, and that the rule that the causal connection between the actor’s negligence and the injury is broken by the intervention of a new, independent and efficient intervening cause, so that the actor is without liability, is subject to the qualification that if the intervening cause was foreseen or might reasonably have been foreseen by the first actor, his negligence may be considered the proximate cause notwithstanding the intervening cause, and also that one who negligently creates a dangerous condition cannot escape liability for the natural and probable consequences thereof, although the innocent act of some third person may have contributed to the final result. We further held that it was not a necessary element of negligence that one charged with it should have been able to anticipate the precise injury sustained.
' The petition states a cause of action against the defendant Gardner.
Defendant next contends that the plaintiff is barred from recovery by reason of the guest statute, G. S. 1949, 8-122b, which provides that no person who is transported by the owner or operator of a motor vehicle, as his guest, without payment for such transportation, shall have a cause of action for damages against such owner or operator for injury unless the injury shall have been the result of gross and wanton negligence of the operator of such motor vehicle. This statute was construed in the case of In re Estate of Bisoni, 171 Kan. 631, 635, 237 P. 2d 404, and what is said there is controlling here. Suffice it to say that plaintiff was the operator at the time of the accident and defendant was the passenger; the plaintiff was in physical control of the car and defendant was the one who was being transported. Therefore, the guest statute has no application under the facts in this case.
For the reasons above stated, the judgment of the trial court is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action on a contract. Appeal has been perfected by the defendants from a judgment of the trial court ordering the sale of their homestead to satisfy the judgment entered in favor of the plaintiff, and from an order of the trial court overruling the defendants’ motion to set aside the order of sale of the defendants’ homestead.
The primary question is whether a waiver of the homestead exemption contained in an indemnity agreement is valid.
On the 26th day of February, 1958, Harley V. Parr and Rarbara A. Parr (defendants-appellants) husband and wife, executed an indemnity agreement with Iowa Mutual Insurance Company, a corporation (plaintiff-appellee) indemnifying the appellee for any losses it might sustain on certain statutory bonds to be executed by the appellee. Subsequently the appellee executed certain statutory bonds with the State Highway Commission of Kansas.
On the 17th day of February, 1960, Harley V. Parr filed his petition in bankruptcy in the United States District Court for the District of Kansas, and was duly adjudged a bankrupt. He listed his home located at Tonganoxie, Kansas, among his assets, and the same was later set aside as exempt. He also listed the appellee as a creditor with respect to any obligation that might arise under the indemnity agreement.
On the 6th day of May, 1960, the appellee filed a petition in the district court of Leavenworth County, Kansas, later amended on the 1st day of July, 1961, seeking judgment and requesting die court for an order decreeing a lien upon the appellants’ real and personal property in the amount of $36,721.36, and for an order of sale of said property.
On the 7th day of July, 1961, Rarbara A. Parr filed her petition in bankruptcy in the United States District Court for the District of Kansas, and was duly adjudged a bankrupt. She listed among her assets the homestead in Tonganoxie, Kansas, owned jointly with her husband. Thereafter, the homestead was set aside to her as exempt. She listed the appellee among her creditors with respect to any obligation that might arise under the aforementioned indemnity agreement.
On the 20th day of July, 1960, the referee in bankruptcy entered an order staying the discharge of the bankrupts.
On the 12th day of July, 1960, Barbara A. Parr filed an affidavit and certificate with the clerk of the district court, indicating that she had applied for a discharge in bankruptcy. On the 21st day of July, 1960, Harley V. Parr filed a similar affidavit and certificate with the clerk of the district court.
After joinder of issues and trial of the matter the district court on the 27th day of January, 1961, found in accordance with the allegations of the petition and the foregoing facts and entered judgment against the appellants in the sum of $36,721.36. It decreed that the judgment should be a lien on the real property of the appellants, including their homestead, and that the homestead be sold to satisfy the judgment.
Thereafter on the 18th day of February, 1961, the appellants filed a motion to set aside the order of sale of their homestead, calling attention to the fact that this was their homestead, and that they had filed affidavits and certificates as provided by G. S. 1949, 60-3601. This motion was overruled and appeal has been duly perfected presenting the issues hereinafter discussed.
It is admitted the appellants owned and occupied the real estate here in question in Tonganoxie, Kansas, as their homestead at the time they executed the indemnity agreement, and that they owned and occupied the same real estate as their homestead when the judgment was entered and the lien impressed.
The paragraph of the indemnity agreement containing the waiver here in question reads as follows:
“Ninth: Each of the undersigned does hereby waive all right to claim, any property, including homestead, as exempt from levy, execution, sale or other legal process under the law of any state, province or other government, as against the rights of The Company to proceed against the same for indemnity hereunder. Each of the undersigned authorizes and empowers any attorney in any state of the United States, at the request of The Company, to waive the issuing and service of process and to appear for and confess judgment against such undersigned for any sum or sums due under this agreement, together with costs of suit, without stay of execution, waiving inquisition and condemnation of any real estate; and to release all errors and waive all right of appeal and stay of execution in behalf of the undersigned; this authority to continue until The Company’s liability under any Such Bond or Bonds shall have wholly terminated.” (Emphasis added.)
The Kansas Constitution, Article 15, Section 9, provides in part:
“A homestead to the extent of one hundred and sixty acres of farming land, or of one acre within the limits of an incorporated town or city, occupied as a residence by the family of the owner, together with all the improvements on the same, shall be exempted from forced sale under any process of law, and shall not be alienated without the joint consent of husband and wife, when that relation exists; but no property shall be exempt from sale for taxes, or for the payment of obligations contracted for the purchase of said premises, or for the erection of improvements thereon: Provided, The provisions of this section shall not apply to any process of law obtained by virtue of a lien given by the consent of both husband and wife: . . .”
This provision is also found in G. S. 1949, 60-3501.
G. S. 1949, 60-3403, provides:
“Lands, tenements, goods and chattels, not exempt by law, shall be subject to the payment of debts, and shall be liable to be taken on execution and sold, as hereinafter provided.”
From the foregoing it is apparent that property which is exempt is not subject to the payment of debts and may not be taken on execution and sold to satisfy those debts. The Kansas Constitution and the legislature have declared a homestead to be exempt. The homestead cannot be subjected to forced sale to satisfy debts except in the following situations: (1) To pay taxes; (2) to pay obligations contracted for the purchase of the homestead; (3) to pay obligations contracted for the erection of improvements on the homestead; or (4) any process of law obtained by virtue of a lien given by the consent of both husband and wife.
The instant case does not fall within any of these exceptions. This was recognized by the trial court. Clearly, none of the first three exceptions applies, and as to the fourth it was said in Kroenert v. Mead, 59 Kan. 665, 54 Pac. 684:
“. . . A waiver of exemption creates no lien on any property. Until seized in execution, a party who has waived the benefit of the exemption laws may sell or dispose of his exempt property with as perfect freedom as if no such waiver had been made. . . .” (p.667.)
If the waiver does not create a lien, then no lien was created by the joint consent of the husband and wife. There must be a valid lien on the particular homestead right when the waiver is made. (West v. Grove, 139 Kan. 361, 31 P. 2d 10.)
The indemnity agreement executed by the parties herein was an executory contract — one where the parties obligated themselves to perform in the future. (See, 12 Am. Jur., Contracts, § 9, pp. 506, 507.)
The trial court held the benefits of the homestead law were waived by the appellants when they executed the indemnity agreement. The appellants contend the state has clearly taken away the right of a creditor to subject the debtors’ homestead to the payment of debts, and that any waiver in the indemnity agreement by the appellants was null and void and against the public policy of this state.
The appellee, on the other hand, contends the appellants cannot now repudiate and attempt to declare void the provisions of a contract they so willingly executed to induce the surety herein to protect them in the event of default.
Regarding the constitutional provision above quoted, it was said by Justice Brewer, speaking for the court, in Monroe v. May, Weil & Co., 9 Kan. 466:
“. . . The homestead is something toward which the eye of the creditor need never be turned. It is an element which may never enter into his calculations in his efforts to collect his debt. . . .” (p. 476.)
By the provisions of G. S. 1949, 67-530, a tenant may waive, in writing, the benefit of the exemption laws of this state for all debts contracted for rents. Decisions applying this statute have dealt with personal property exemptions. (Hoisington v. Huff, 24 Kan. 379; and Kroenert v. Mead, supra.)
Personal property exemptions were established by statute, G. S. 1949, 60-3504 and 60-3505. Thus, the legislature could by statute permit a waiver of those personal exemptions which it had created.
The general exemption laws of this state are those provisions included in G. S. 1949, 60-3501 to 60-3509, inclusive. In West v. Grove, supra, it was said regarding these provisions in the code:
“. . . Those statutes may be said to be ‘exemption laws of this state,’ but anything that the legislature might see fit to enact or did enact could in no way limit the constitutional provisions with respect to a homestead. . . .
“This section [Art. 15, § 9, Const.] was enacted as General Statutes of 1868, chapter 38, section 1, and now appears as R. S. 60-3501 [G. S. 1949, 60-3501]. That it was so enacted cannot be held to limit its force as a constitutional provision, nor to extend to R. S. 67-530 [G. S. 1949, 67-530] any power to dispose of a homestead except in a constitutional manner. . . .” (p. 363.)
In the West case a tenant by a provision in a lease on real estate agreed to waive the benefit of the exemption laws of the state of Kansas to secure the payment of rent. At the time the waiver was executed the tenant and his wife did not own a homestead, but thereafter acquired real estate, other than the real property leased, and at all times thereafter occupied the same as their homestead. The agreement was construed and held by the court not to constitute a waiver of a homestead right thereafter acquired in other real estate.
The appellee attempts to distinguish the instant case from West v. Grove, supra, on the ground that the waiver herein was executed at a time when the appellants, husband and wife, owned and occupied the real estate in question as a homestead, and on the further ground that the waiver herein was of the homestead right and not the benefit of the exemption laws.
Another decision touching upon the waiver of a homestead right is Schloss v. Unsell, 114 Kan. 69, 216 Pac. 1091. There a widower without minor children or dependents claimed the homestead right, after executing a waiver. The waiver covered “ "any and all homestead and other exemptions to which I or we may be by law entitled.’ ” (p. 70.) The real estate sought to be subjected to the payment of his debts was owned and occupied as the homestead of the debtor when the waiver was made, and the property was continuously so occupied until the time of suit. The court upheld the waiver as valid. The case was readily distinguished in West v. Grove, supra, on the ground that the waiver was executed by a widower without minor children or dependents.
The primary concern of the homestead exemption provided in the Constitution of Kansas is to protect the family of the debtor. In West v. Grove, supra, the proceedings of the Wyandotte Constitutional Convention were summarized relative to the purpose of adopting the homestead provision in our Constitution. After so doing the court concluded:
“. . . the manner and form in which the proposition was submitted to the electorate warrants the conclusion that, although the provision itself uses the word ‘exempt,’ it was intended to create and more was created than a simple exemption statute. The manner in which the homestead may be alienated is expressly stated, as are the circumstances against which the homestead right shall not prevail. It has been the settled course of the decisions of this court to construe liberally the homestead provision and not to restrict it. The legislature lacles power to limit the provision, . . .” (p. 366.) (Emphasis added.)
The foregoing purpose of the homestead exemption is entirely in keeping with the design of exemption laws to protect debtors against their own improvidence. On this point see, Burke v. Finley, 50 Kan. 424, 31 Pac. 1065, where it was held that a landlord as a judgment creditor could not garnishee the wages of a judgment debtor who had as a tenant waived his exemptions. The court there recognized that the legislature intended to create an exemption in the interest and for the benefit of the family of the debtor, and being created for the benefit of the debtor’s family he could not waive it.
That the homestead is for the protection of the family was recognized in Watson v. Watson, 106 Kan. 693, 189 Pac. 949, the syllabus to which reads:
“The restrictions of the constitution and statutes touching the alienation of a homestead are for the protection of the family, and cannot be varied or avoided by an antenuptial contract providing that in case the wife survives the husband she is to have no part in his estate. Hence, so long as such surviving widow remains unmarried she may occupy the homestead regardless of such contract.”
To the same effect is In re Estate of Place, 166 Kan. 528, 203 P. 2d 132.
On the facts in the case at bar the appellants owned and occupied the real property in question as their homestead with their family when the indemnity agreement was executed, and they continued to occupy these premises as their homestead at all times material to this litigation. Under these circumstances we hold the appellants’ agreement to waive the benefit of the homestead exemption allowed them by the Constitution of Kansas, in the executory agreement here under consideration, is contrary to the public policy of this state and of no effect. (See, 22 Am. Jur., Exemptions, § 130, pp. 98, 99.)
It has been held that the homestead exemption clause of the Kansas Constitution is not in contravention of the United States Constitution on the ground that it impairs the obligation of the contract. The obligation of contract still exists, it being only the remedy that is affected by the homestead exemption clause. (Cusic v. Douglas and others, 3 Kan. 123.)
The indemnity agreement pursuant to which this action was brought is a long and complicated printed form prepared for the appellee by its attorneys. Following the waiver of homestead rights contained in paragraph nine, heretofore quoted, is a proviso authorizing any attorney at the request of the appellee to waive the issuing and service of process upon the appellants. As to this provision see, McCrairy v. Ware, 6 Kan. App. 155, 51 Pac. 293.
Prior to the entry of judgment herein the appellants filed their affidavits of bankruptcy and certificates as provided in G. S. 1949, 60-3601. The trial court in the journal entry of judgment found that the appellants had filed petitions in bankruptcy and had been adjudged bankrupts, and that the appellee was listed as a creditor by each of the appellants. Under these circumstances, and in view of our holding herein, the trial court erred in its failure to follow the mandate of this statute by ordering execution and sale of the appellants’ homestead.
The appellants have not yet been granted their discharge in bankruptcy to take advantage of the provisions of G. S. 1949, 60-3602. Under this section of the statute the judgment rendered against the appellants would be deemed satisfied upon the filing of a certificate of discharge. The facts on which the judgment was obtained in the instant case were not sufficient to bring the appellee into a situation in which the homestead could be reached and sold; therefore, the provisions of 60-3601, supra, apply. This was the situation in Dotson-Murray Fruit Co. v. Leibrand, 143 Kan. 72, 53 P. 2d 487.
Here the judgment rendered was for an amount certain. It was not rendered for taxes, or for the payment of obligations contracted for the purchase of the homestead, or for the erection of improvements on the homestead, or by virtue of a lien given by joint consent of the husband and wife. It was an ordinary money judgment, and like any ordinary money judgment, it became a lien upon the real estate of the judgment debtors from the first day of the term at which the judgment was rendered. (G. S. 1949, 60-3126.) Upon compliance with 60-3601, supra, by the trial court in this case, the judgment would remain unsatisfied until such time as the appellants receive their discharge in bankruptcy. Thereafter, the judgment would be deemed to have been fully discharged and satisfied.
It follows that the order of the trial court declaring the appellee’s judgment to be a lien on the appellants’ homestead, the order of sale of the appellants’ homestead to satisfy the judgment, and the order overruling the appellants’ motion to set aside the order of sale were erroneous.
The judgment is reversed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action by the appellants to enjoin the appellees from removing the respective offices of the county seat of Logan County, Kansas, from its present location to the city of Oakley, Kansas. The order of removal was made subsequent to a special election held pursuant to the provisions of G. S. 1949, 19-1601 to 19-1630, inclusive.
Appeal has been taken from an order of the trial court overruling the appellants’ motion for judgment on the pleadings.
The controlling question is whether the order of the trial court denying the motion for judgment on the pleadings is appealable.
Whether an appeal lies from an order overruling a motion for judgment on the pleadings is a jurisdictional question, and it is the duty of this court to determine such jurisdictional question even though it has not been raised by the parties to the proceedings. (Sullivan v. Paramount Film Distributing Corp., 168 Kan. 524, 213 P. 2d 959.)
A motion for judgment on the pleadings invokes the judgment of the trial court on questions of law as applied to the well-pleaded and conceded facts. It presupposes a lack of issue of fact. If there is no issue of material fact presented by the pleadings, then it becomes a question of law as to which party is entitled to judgment. But if a material issue of fact is presented and remains undetermined, a judgment on the pleadings is improper. (Buechner v. Trude, 175 Kan. 572, 266 P. 2d 267; Geier v. Eagle-Cherokee Coal Mining Co., 181 Kan. 567, 572, 313 P. 2d. 731; and Dearborn Motors Credit Corporation v. Neel, 184 Kan. 437, 444, 337 P. 2d 992.)
An appeal may be taken from an order overruling a motion for judgment on the pleadings only where it can be said on the record that the motion concedes the facts well pleaded by the opposing party, and is thus equivalent to a demurrer. But where an issue on material facts is joined by the pleadings if is not equivalent to a demurrer and an order overruling the motion is not appealable. (Sullivan v. Paramount Film Distributing Corp., supra, and authorities cited therein.)
The pleadings filed in this case consist of a petition, and answer and a reply. The pleadings disclosed that the election was conducted pursuant to G. S. 1949, 19-1602, which required the vote of three-fifths of the legal electors of Logan County to relocate the county seat and to remove it from Russell Springs to the city of Oakley.
The petition, among other things, alleged specific facts which charged in substance that the action of the board of county commissioners of Logan County, Kansas, was illegal and wholly void because (a) they were not the legally constituted and qualified board of county commissioners; (b) they were without authority to subtract or delete names from the lists of registry which indicated the number of qualified electors of Logan County, Kansas; and (c) they determined from the canvass of the election that the proposition had carried by a majority of sixty percent of the qualified electors.
The petition alleged that the election returns disclosed 1,441 votes had been cast in favor of the proposition and 783 against it. It further alleged the board of canvassers announced there was a total of 2,398 qualified electors in Logan County, Kansas, as of the date of the election. (These figures show that 1,438 votes were required to carry the election.) The substance of the charge is that had there been no change on the registry lists the election would not have carried.
The appellees in their answer “specifically deny that any name was wrongfully withheld from said registry lists, and allege that the said election, the canvass thereof, the determination of the number of legal electors of Logan County, Kansas, on the date thereof, and the resulting proclamation of the results thereof were in all respects regular and in accordance with the law.” The appellees also denied various other irregularities concerning the election alleged in the petition.
The admission in the appellees’ answer and the concession in the pleadings to which our attention must be focused concerns the notice of the election and the proposition stated on the ballot.
The notice of election recited that a petition had been filed requesting that an election be ordered “for the removal and relocation of the County Seat of said County by removing said County Seat of Logan County from Russell Springs in said county, its present location, to the townsite of Oakley in said county.” The proposition was similarly stated throughout the notice.
The ballot simply recited: “Shall the County Seat of Logan County, Kansas, be removed to the City of Oakley, Kansas?”
The appellants contend the motion admits everything the appellees say in their answer to be true and correct, but even so the election is void because the notice of the election which the appellees concede was used, and the ballot which they concede was submitted to the electorate, were defective as a matter of law. If this contention be correct then the issues of facts joined by the pleadings are immaterial, and the motion invokes the judgment of the trial court on a question of law.
It must be conceded that a county seat election is a special election. The election law contemplates that when a special proposi Ron is submitted to a popular vote, the recitals on the ballot shall clearly state the substance of the question the electors are to vote upon; and where that proposition is so obscurely stated that the electors may be misled thereby, the election is viRated. (Leavenworth v. Wilson, 69 Kan. 74, 76 Pac., 400; Kansas Electric Power Co. v. City of Eureka, 142 Kan. 117, 45 P. 2d 877; and Board of Education v. Powers, 142 Kan. 664, 668, 51 P. 2d 421.)
Relying upon the foregoing proposiRon the appellants argue the ballot states but half the proposiRon “in that it did not state the place from which the County Seat was to be removed. Obviously, the proposiRon might mislead the voter. He could very well assume that he had no choice between Russell Springs and Oakley. Further, he might assume that the County Seat was to be moved irrespective of how he voted and his choice was between Oakley and any one of the towns in the county other than Russell Springs.”
The appellants further argue “The ballot says nothing about relocation. The notice states ‘from Russell Springs, its present location.’ The ballot gives no indication from where it is to be removed and certainly does not mention its present locaRon, Russell Springs. Note must be made that this is a relocation election and not an initial election.”
Finally, the appellants argue, “the notice twice states the proposition to be to remove the County Seat to the ‘townsite of Oakley in Logan County, Kansas.’ The ballot makes no mention of the townsite of Oakley. Rather it recites the City of Oakley, Kansas.”
Despite the technical definitions asserted by the appellants for the words “townsite” and “city,” this variance in terminology is, in our opinion, immaterial. Only by a strained constracRon of the English language could the voters have been misled by the proposition stated on the ballot. We think the proposition as stated, both in the noRce and on the ballot, clearly states the substance of the question on which the electors were called upon to vote.
Under these circumstances the order of the trial court overruling the appellants’ motion for judgment on the pleadings cannot be said to be equivalent to a ruling on a demurrer. Material issues of fact are presented by the pleadings and remain undetermined. The order overruling the motion for judgment on the pleadings was not a final order. It did not affect a substantial right in the acRon, nor in effect determine the action and prevent a judg ment. (Sullivan v. Paramount Film Distributing Corp., supra; and see, Allman v. Bird, 189 Kan. 331, 369 P. 2d 387.) It follows that the order is not appealable.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This was an action to recover money on a promissory note.
Plaintiff, Wenzel Machinery Rental and Sales Company, Inc. commenced the action on January 19, 1960, by fihng a petition in the district court of Chase County, naming Temple Adkins, a/k/a Temple Adkins, Jr.; Temple Adkins, II; T. H. Adkins; Temple Atkins; Temple Atkins, Jr.; Temple Atkins, II; T. H. Atkins, a resident of such county, as the sole defendant. By an amendment to the petition, dated February 3, 1960, Ernie Rieke was added as defendant and, pursuant to G. S. 1949, 60-2502, summons was served on him in Wyandotte County. Rieke filed a motion to quash this service which was sustained. Thereafter, and on March 8, 1960, a praecipe for an alias summons on such defendant was filed and residential service was obtained on him on March 18, 1960, in Wyandotte County. A subsequent motion to quash this service of summons was overruled. Later, and on May 24, 1960, plaintiff filed an amended petition.
For reasons to be presently noted it is neither necessary nor required that we burden this opinion by detailing the allegations of the foregoing pleadings. It suffices to say the note sued on, which was attached to and made a part of the initial petition, as well as the amended petition on May 24, 1960, reads as follows:
“$17,926.72 City — Kansas City, Kans. — Kansas—Date February 20th, 1954.
“For value received, I promise to pay to Wenzel Machinery Rental & Sales Co. or order the sum of Seventeen thousand nine hundred twenty-six and 72/100 — dollars at Kansas City, Kans. — City—State—Kansas—in installments payable as follows, to-wit: One thousand four hundred and ninety-three & 90/00 Dollars on the 20th day of March, 1954, and $1,493.90 Dollars on the 20th day of each succeeding month thereafter, until above named sum is paid in full with interest on each installment from its maturity until paid, at the rate of eight per cent per annum; and agree to pay reasonable collection charges and attorneys fees and all expenses in case of default.
“If default is made in the payment of any installment when due, then all the remaining installments shall, at the election of the holder hereof, become due and payable at once. All signers, endorsers and parties to this instrument hereby waive presentment, protest and notice of nonpayment. This note is secured by a chattel mortgage on Lima Diesel # 802 Dragline ser. # 1028 IK K. W. Kobler Light Plant.
“S/Ernie Rieke Equipt. Co.
“S/Ernie Rieke.”
Following the filing of the last mentioned pleading Rieke’s motion to dismiss the action and Adkins’ demurrer to the petition were sustained. Thereupon plaintiff perfected appeals from both rulings and brings the case to this court under a single specification of error charging that the trial court erred in sustaining defendant Rieke’s motion to dismiss and defendant Adkins’ demurrer because the petition and amended petition alleged joint and several liability against both defendants, as members of a joint venture, on a promissory note executed by said joint venture.
This is one appeal where, by their unqualified admissions, the parties agree that their appellate rights must stand or fall upon this court’s decision of one question. This is fully demonstrated by statements appearing in the briefs of the respective parties to which we shall now direct attention.
In its brief, with respect to the nature of the action, appellant states,
“This is an action by the payee (appellant) on a promissory note executed by a joint venture as maker against two (2) of the joint venturers to recover the unpaid balance of the note. The trial court sustained a motion to dismiss as to the nonresident defendant (appellee Rieke) and a demurrer as to the other defendant (appellee Adkins). Both rulings have been appealed.”
and then, at page 13 of such brief, states the question involved is:
“When a negotiable promissory note is executed in the name of a joint venture as maker by one of the joint venturers is another member of the joint venture jointly and severally liable on the note although his individual signature does not appear on the note?”
Appellees, in their joint brief, make the following statement:
“Appellees agree that the only matter to be determined by this appeal is adequately stated in the ‘Question Involved’ portion of appellant’s brief, on page 13, since appellant has conceded that all theories of recovery, except an alleged action on a note, were barred by various and sundry statutes of limitation. Briefly stated then, if appellant failed to state a cause of action against appellee Adkins, then the rulings of the District Court were correct, both as to appellee Adkins and as to appellee Rieke.”
The record presented, and admissions made by the parties in connection with proceedings had in the court below, make it appear that, assuming all other allegations of the petition as amended were sufficient to disclose a joint adventure, the trial court’s rulings, sustaining Rieke’s motion to dismiss and Adkins’ demurrer, were based wholly upon the ground such pleading nevertheless failed to state a cause of action against Adkins for the reason no cause of action was or could be stated against him on the note because his signature did not appear thereon.
Thus, mindful of the established rule that joint adventures and partnerships are so similar in nature that they are governed by the same rules of law (See Brown v. Dye, 165 Kan. 507, 509, 195 P. 2d 607; Grannell v. Wakefield, 172 Kan. 685, 242 P. 2d 1075; 30 Am. Jur., Joint Adventures, § 4, p. 940; 48 C. J. S., Joint Adventures, §§ 1[6], 13, 15 pp. 806, 807, 865, 871) we come to the sole question involved in this lawsuit.
Are the provisions of G. S. 1949, 52-218, a part of our negotiable-instrument law, which read:
“No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided; but one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.”
to be construed as precluding the stating of a cause of action on a promissory note against one joint adventurer, whose individual signature does not appear on the note, when such note has been executed by one of the joint adventurers in the name of the joint adventure?
Directing our attention to the fact that in sustaining Rieke’s motion to dismiss because the petition as amended failed to state a cause of action against Adkins, the trial court based that ruling squarely on Plains State Bank v. Ellis, 174 Kan. 653, 258 P. 2d 313, appellees strenuously contend that case, as well as Federal Deposit Ins. Corp. v. Cloonan, 165 Kan. 440, 196 P. 2d 195, require an affirmative answer to the question just posed. We do not agree.
In the first place both cases are factually distinguishable from the case at bar in that in Plains State Bank v. Ellis, supra, recovery was denied against a non-signing partner on a note that was signed by a partner in his individual name only, not in the partnership name; while in Federal Deposit Ins. Corp. v. Cloonan, supra, (disposing of three consolidated appeals) rulings sustaining three separate demurrers to three amended petitions were affirmed on the basis an individual (Cloonan), whose name did not appear on the notes sued on, could not be held liable on notes signed by three separate persons solely in their individual capacities, even though the petitions alleged such notes evidenced the indebtedness of Cloonan for money he had received from the payee bank from which Federal Deposit Insurance Corporation had acquired the instruments.
In the next place, conceding that the first paragraph of the syllabus in each of the last mentioned cases holds that by reason of G. S. 1949, 52-218, no person is liable on a promissory note whose signature does not appear thereon unless liability is imposed by other provisions of such law, it must be remembered that by legis lative fiat (see G. S. 1949, 60-3329 and G. S. 1949, 20-203) a syllabus is confined to points of law arising from the facts of the case that have been determined by the court and is in no sense to be construed as reaching out and deciding a question of law which is not fortified by the factual situation presented by the record in the case.
Moreover, it is to be noted that in Plains State Bank v. Ellis, supra, we recognized that, notwithstanding the provisions of 52-218, supra, a suit may be maintained on a promissory note against an undisclosed principal under conditions and circumstances similar to those involved in the instant appeal when, at page 656 of the opinion, we said:
“. . . The rale that a suit may not be maintained nor a judgment obtained on a promissory note against an undisclosed principal whose signature does not appear thereon unless the note is signed by use of his trade, partnership or other assumed name in jurisdictions having a statute such as ours in force and efFect is recognized by all well established textbooks and legal treatises where the subject is discussed and considered . . .” (Emphasis supplied.)
Not to be out done appellant cites John Deere Plow Co. v. Klaurens, 153 Kan. 151, 152, 109 P. 2d 98, and in its brief, as well as its oral argument, insists that the factual situation in that case is so similar that if the case is adhered to it must be considered as a precedent compelling a conclusion the trial court erred in its rulings. The case is identical from the standpoint of the general type of signature appearing on four notes in question but there similarity ends. The trouble from appellees’ standpoint is that resort to the abstracts and briefs of the parties on file in the State Library, as well as this court’s opinion, discloses questions relating to application of 52-218, supra, were never raised or discussed, either in the court below or in this court on appeal. It appears that under those circumstances this court determined the appeal on the basis of the issues involved below, winding up by affirming the lower court’s judgment allowing recovery on the notes on the basis of a prior contract between the parties which created an estoppel. In any event, a careful review of the record makes it clearly appear appellant’s claim John Deere Plow Co. v. Klaurens, supra, is to be here regarded as a controlling precedent lacks merit and cannot be upheld.
Indeed we are cited to and our extended research discloses no Kansas decisions controlling the question now under consideration. Therefore we turn to other authorities which deal with the subject.
. The question now before us — as heretofore stated — was squarely raised and answered in the negative in Frazier v. Cottrell, 82 Or. 614, 162 Pac. 834. In that case, which we believe should be regarded as a precedent controlling its answer in the case at bar, with pertinent statutes identical and similar confronting facts and circumstances the Oregon Supreme Court held:
“Under Section 5851, L. O. L. [our statute G. S. 1949, 52-218], making one who signs a note in a trade or assumed name liable as if he signed his own name, and Section 6023 [our statute G. S. 1949, 52-102], defining ‘person’ to include a body of persons, whether incorporated or not, and in view of the fact that a partnership may adopt any name it chooses as its firm name, and that each partner is the agent of the firm and may sign its name to any paper given for partnership business, a note signed, ‘The Oregon Locators, by F. L. G., member of the firm authorized to sign the firm name,’ renders the firm and the other member hable.” (Syl. ¶ 1.)
And in the opinion said:
“1. But one contention is made upon this appeal, namely, that the note does not show any liability against the defendant Cottrell under Section 5851, L. O. L. [our statute G. S. 1949, 52-218], which reads:
“ ‘No person is liable on the instrument whose signature does not appear thereon, except as herein otherwise expressly provided; but one who signs in a trade or assumed name will be liable to the same extent as if he had signed in his own name.’
“It seems to us that the note comes within the last provision of this section that ‘one who signs in a trade or assumed name will be liable.’ It is also averred in the complaint and was found by the trial court that the defendants adopted as a firm name ‘The Oregon Locators.’ It is a well-recognized principle of law that a partnership may adopt any name it chooses as its firm name: 30 Cyc. 419. It is also well settled that each partner is the agent of the firm for the transaction of its business, and may sign the firm name to any paper given for the purposes of the partnership business: Baker v. Seaweard, 68 Or. 80, 85 (136 Pac. 870); Morgan’s Estate, 46 Or. 233, 237 (77 Pac. 608, 78 Pac. 1029). Section 5852, L. O. L. [our statute G. S. 1949, 52-219], declares that ‘the signature of any party may be made by a duly authorized agent.’ The signature of the firm name ‘The Oregon Locators’ to the note is in law the signature of all the members of the firm thereto: 30 Cyc. 419, 420; 22 Am. & Eng. Enc. Law (2 ed.), 166. Section 6023, L. O. L. [our statute, G. S. 1949, 52-102], defining words used in the negotiable instruments law, states that ‘person’ includes a body of persons, whether incorporated or not. These sections of Lord’s Oregon Laws, being a part of our negotiable instruments law, are sufficiently definite to govern the question raised in this case. L. R. Cottrell being a member of the firm, his adopted name does appear on the note as found by the trial court.” (pp. 615 and 616.)
For other decisions of like import, supporting the principles of law announced in Frazier v. Cottrell, supra, and our conclusion as to its status as a controlling precedent, where similar questions were raised with respect to the force and effect to be given a statute containing the same language as 52-218, supra, see Deichmann v. Aronoff (Mo. Ct. of App.), 296 S. W. 2d 171, 178; Barnett Bank v. Chiatovich, 48 Nev. 319, 343, 232 Pac. 206; Commerce Trust Co. v. McMechen (Mo. Ct. of App.), 220 S. W. 1019, 1020.
See, also, Lady v. Thomas, 38 Cal. App. (2d) 688, 689, 102 P. 2d 396; First State Bank of Riesel v. Dyer (Tex. Civ. App.), 248 S. W. 2d 785, 788, where the principles of law adhered to in the foregoing cases are expressly recognized and approved.
For a well-recognized legal treatise see Britton on Bills & Notes (2 ed.) § 168, pp. 499, 500, which reads:
“A person whose name does not appear upon the instrument may be held liable thereon if he, or his duly authorized agent, has signed thereto a trade name under which such person engages in business. The rule applies to partnerships as well as to individuals. Such cases do not constitute an exception to the rule which forbids an action on a negotiable instrument against one whose name does not appear thereon, but rather it is an instance in which the defendant’s business name serves the same purpose that would be served by the use of his given and surname.”
For other well-established legal treatises containing general statements supporting the legal principles announced and adhered to in the foregoing decisions — and our own conclusion that the provisions of G. S. 1949,52-218, are not to be construed as precluding the stating of a cause of action on a promissory note against one joint adventurer, whose individual signature does not appear on the note, when such note has been executed by one of the joint adventurers in the name of the joint adventure — see 7 Am. Jur., Bills & Notes, § 200, p. 903; 10 C. J. S., Bills & Notes, § 34[b], p. 455.
Other decisions dealing with the same general subject are cited in Plains State Bank v. Ellis, supra, at page 657.
The foregoing authorities, and what has been heretofore stated and held, compel a conclusion the trial court erred in holding the allegations contained in the petition as amended were not sufficient to constitute a cause of action in favor of the plaintiff and against the defendant Adkins on the note sued on. It follows that its rulings sustaining defendant Rieke’s motion to dismiss and defendant Adkins’ demurrer, each of which was based on the premise the amendment to the petition failed to state a oause of action against Adkins, were likewise erroneous and cannot be upheld. Therefore such rulings must be reversed and the cause remanded to the district court with directions to set them aside.
It is so ordered. | [
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The opinion of the court was delivered by
Parker, C. J.:
Plaintiffs, in their individual capacities as private citizens, commenced this action in the district court of Johnson County by filing a petition in which they sought and demanded a mandatory injunction, under the provisions of G. S. 1949, 82a-301 to 305, inch, directing the defendant, as an alleged upper riparian landholder, to obtain a permit from the Chief Engineer of the Division of Water Resources for alterations made by such landholder on an alleged common stream without having received such a permit. Defendant demurred to the petition for the reason it failed to state facts sufficient to constitute a cause of action and the trial court sustained the demurrer upon that basis. Thereupon plaintiffs perfected the instant appeal in which, in utter disregard of the requirements of Rule No. 5 (see 183 Kan. xi; G. S. 1949, 60-3826 “Rules of the Supreme Court No. 5”), with an abstract of record containing no specifications of error whatsoever, they now seek to have this court review divers questions raised by them as affording grounds for reversal of the trial court’s order and judgment.
The fact, • as pointed out, that appellants have wholly failed to comply with the requirements of Rule No. 5 which, so far as here pertinent, provides “The appellant’s abstract shall include a specification of the errors complained of, separately set forth and. numbered.”, requires the court to direct attention to what is now its definitely established rule when faced with such a situation on appeal. Simply stated the rule is that where — as here — appellants have failed to comply with the quoted requirements of Rule No. 5, by failing to set forth in their abstract any specification of error and/or errors complained of, they preclude themselves from appellate review and their appeal will be dismissed.
It is not necessary that we again labor the reasons responsible for this court’s enunciation and application of the foregoing rule. Nor is it required that we burden our reports with a recitation of our many decisions where those matters have been considered, discussed and determined. Suffice it to say the reasons have been considered and discussed, and the rule applied, in many decisions, both civil and criminal, to which we adhere. For one of our more recent decisions in which the rule is again considered, discussed, applied, and followed, and many of our decisions supporting it are cited, see Blevins v. Daugherty, 187 Kan. 257, 259, 356 P. 2d 852, where it is held:
“Rule No. 5 of this court (see 183 Kan. xi; G. S. 1949, 60-3826, ‘Rules of the Supreme Court’ No. 5) provides that the party seeking appellate review of a trial court’s order or judgment shall include in his abstract a specification of the errors of which he complains, separately set forth and numbered.
“Where an appellant has made no attempt to conform with the requirements of the rule mentioned in the preceding paragraph of this syllabus and has failed to specify as error the sustaining of a demurrer to his evidence appellate review of that ruling is precluded and his appeal will be dismissed.” (Syl. f f 1 &2.)
Under the related facts and circumstances adherence to Rule No. 5, Blevins v. Daugherty, supra, and the numerous decisions therein cited which we include in this opinion by reference, requires that the instant appeal be dismissed.
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The opinion of the court was delivered by
Wertz, J.:
This was an action to quiet title to certain real estate in Trego county. From a judgment in favor of defendants (appellees), plaintiff (appellant) appeals.
The case was submitted to the trial court upon the pleadings and an agreed statement of facts to which certain exhibits were attached and made a part thereof. The only issue for the trial court’s determination was whether a prior judgment for child support, in favor of defendant Eva Beach and against plaintiff’s husband Glenn T. Beach, then owner of the vested remainder in the property in controversy, was a prior lien thereon to plaintiff’s subsequently acquired title to said land.
At the outset, defendants challenge the right of plaintiff to be heard in this court on the ground that no appeal was taken within the time provided by our statute.
On June 22, 1960, a trial was had upon the pleadings and an agreed statement of facts, and the trial court rendered judgment for defendants on August 4, 1960. On that same date plaintiff filed a motion for a new trial, which was overruled on September 14, and on November 8, 1960, she perfected her appeal to this court from the trial court’s judgment of August 4 and its order of September 14 overruling motion for new trial.
As stated previously, the record discloses that on August 4, 1960, judgment was rendered against plaintiff. Under G. S. 1949, 60-3309, plaintiff had two months from that date in which to perfect an appeal. No such appeal was perfected. The question then is whether the filing by plaintiff of a motion for new trial extended the time for appeal under G. S. 1959 Supp., 60-3314a, which provides that when an appeal has been timely perfected, the fact that some ruling of which the appealing party complains was made more than two months before the appeal was perfected shall not prevent a review of the ruling. A motion for a new trial calls for re-examination of an issue of fact. (G. S. 1949, 60-3001.)
It is well settled in this state that it is not essential to a review of a judgment rendered on an agreed statement of facts that a motion for a new trial be filed, and that such a motion is unnecessary. This court has repeatedly held that where all the facts in an action are stipulated by the parties and submitted to the trial court for judgment, the only function of the court is to determine questions of law. Under such circumstances, no trial errors are committed which make a motion for a new trial either necessary or proper, and if a motion for a new trial is made, such motion does not extend the time in which an appeal from a judgment may be taken. (Willey v. Gas Service Co., 177 Kan. 615, 281 P. 2d 1092; Colyer v. Wood, 178 Kan. 5, 283 P. 2d 398; In re Estate of Weidman, 181 Kan. 718, 723, 314 P. 2d 327; Stock v. Union Pacific Railroad Co., 183 Kan. 659, 661, 331 P. 2d 549.)
Because of the fact judgment was rendered in the trial court on August 4,1960, and notice of appeal was not filed until November 8, 1960, more than two months after judgment was rendered (60- 3309), the appeal comes too late and this court is without jurisdiction to consider it. Therefore, the appeal must be dismissed.
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The opinion of the court was delivered by
Jackson, J.:
This appeal arises out of a claim filed with the county commissioners of Johnson county by the appellant to recover an attorney’s fee for successfully representing the county election commissioner prior to the 1960 election.
The county attorney filed a declaratory judgment action, and then an injunction suit against the election commissioner to prevent him from listing the addresses of county candidates on the ballot. After the filing of the first action, the commissioner talked with the county commissioners concerning counsel to defend himself and it appeared that they did not agree to furnish any defense but thought he should follow the advice of the county attorney. Thereafter election commissioner Rainey employed the appellant who successfully terminated the injunction suit and the declaratory judgment action was dismissed.
Within due time appellant filed his claim with the board of county commissioners asking that they allow him a fee in the sum of $700. The board denied the claim, and appellant appealed to the district court. The court also denied appellant relief and he has appealed to this court.
Appellant argues strongly that the county commissioners should be obliged to furnish counsel for a county officer. But appellant does not cite any case from this jurisdiction which would uphold the claimed duty.
The general powers of die county commissioners are now found in G. S. 1961 Supp., 19-212. A reading of the statute leaves little outside of the commissioners’ power as to financial affairs, and then we turn to G. S. 1949,19-229, which reads as follows:
“The boards of county commissioners of the several counties of this state shall have exclusive control of all expenditures accruing, either in the publication of delinquent tax lists, treasurer’s notices, county printing, or any other county expenditures.”
As early as County of Neosho v. Stoddart, 13 Kan. * 207, this court held that no other officer could create county indebtedness without the approval of the county commissioners.
The simple answer would seem to be that appellant has never obtained the approval of the commissioners for his claim.
Appellant argues that he may have a right under implied contract. But even then it would appear that the board of county commis sioners must at least have accepted the benefits from the implied contract. Such in fact seems to have been true in State, ex rel., v. Glenn, 144 Kan. 461, 61 P. 2d 1354. In the case at bar, the benefit to the county or to the commissioners is certainly not clear. There is no doubt that the commissioners might have approved appellant’s claim if they had agreed to do so. Lacking approval, we see no way appellant can recover from the county.
The judgment of the district court must be affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is an appeal from an order of the district court of Leavenworth County denying petitioner a writ of habeas corpus. The facts required for a proper understanding of the questions presented will be stated briefly.
On March 15, 1957, petitioner was confined in the Sedgwick County jail, charged with burglary and larceny. Upon giving an appearance bond he was released to the custody of McPherson County authorities in accord with the provisions of a detainer warrant. April 1, 1957, the county attorney of McPherson County filed an information in the district court of that county charging petitioner with the crime of unlawfully and feloniously breaking and entering, in the nighttime, the Galva Cash Market, Galva, Kansas, on January 27, 1957. Petitioner, who was represented by counsel, pleaded guilty to this offense and was sentenced to the Kansas State Penitentiary to be confined not' less than five years nor more than ten years. On the same day, upon recommendation of the county attorney, this sentence was suspended and petitioner was paroled to the undersheriff of McPherson County for a period of two years.
Subsequently petitioner returned to Sedgwick County to stand trial on the charges pending against him in that county and, on April 8, 1957, he was found guilty and sentenced by the district court of that county to the Kansas State Industrial Reformatory at Hutchinson for a term of five to ten years. Petitioner was also paroled from this sentence but later, and on June 24, 1957, the district court of Sedgwick County revoked such parole and directed that he be committed to the reformatory to serve the sentence theretofore imposed against him.
While serving time at the reformatory petitioner was brought back to McPherson County for a parole violation hearing on June 13, 1958. At this hearing the district court of McPherson County revoked the parole theretofore granted petitioner and directed that he be confined in the Kansas State Penitentiary under its judgment and sentence of April 1, 1957. Thereafter petitioner was taken to the state pentitentiary where, on the date of the institution ef this proceeding, he was, and is now, confined under and by authority of the foregoing orders and judgment of the district court of McPherson County.
The pleadings in the court below are not in controversy but should be mentioned. In his petition the petitioner charged he was being illegally restrained in the penitentiary without any authority whatsoever under due process of law. By way of answer the respondent denied all charges of that character and alleged that he was holding petitioner under a valid judgment and sentence. Following joinder of issues as indicated, and a full and complete hearing at which both parties adduced evidence, the district court of Leavenworth County resolved all issues in favor of the respondent and denied the writ.
In approaching petitioner’s position on appeal it is well to keep in mind that under the facts as here stated he was paroled by the district court of McPherson County, and accepted the terms of such parole, under the provisions of G. S. 1949, 62-2203 and 62-2204, providing in substance that, once it was granted, this parole could be revoked by the district court at any time during its term, whereupon he could be transported to the penitentiary in the same manner as if no parole had been granted; and the time he had been at large upon such parole should not be counted as a part of the term of his sentence, but the time of his sentence must count from the date of his delivery to the warden of that institution.
The general power and authority possessed by district courts, in connection with paroles granted in felony cases, under the provisions of the sections of the statutes just cited, was determined by this court in Brewer v. Hand, 187 Kan. 52, 353 P. 2d 518, where it is said:
“Resort to 62-2203, supra, makes it appear that, under its provisions, the district court of Seward County had authority to suspend execution of the sentence it had imposed againt appellant and place him on parole for such period a^d upon such terms and conditions as it deemed best, and permit him to go and remain at large until that parole was terminated, subject only to the condition that the period of parole, together with any extension thereof, should not exceed five years. In this connection it should be noted that the district court revoked appellant’s parole and committed him to the penitentiary within the five-year period. And pointed out that, prior to that time, he had been at liberty under a suspended felony sentence by virtue of an order of parole the terms of which, both in fact and in law, had not been suspended and were in full force and effect.” (p. 53.)
Petitioner does not question the power and authority granted the district courts in felony cases under the mentioned statutory provisions. Instead his claims, as we have been able to glean them from a confusing and unsatisfactory record, are: First, that the district court of McPherson County lost all jurisdiction of him when, subsequent to the granting of such parole, the district court of Sedgwick County sentenced him for the Sedgwick County crime and thereafter granted him a parole and then revoked that parole; and second, that revocation of his Sedgwick County parole effected a revocation of the McPherson County parole with the result that from and after the date on which his Sedgwick County parole was revoked he began to serve time on his McPherson County sentence concurrently with the reinstatement of his Sedgwick County sentence.
In support of his first claim petitioner relies on G. S. 1959 Supp., 62-2242, which, so far as here pertinent, reads:
“Whenever a defendant on probation or under suspended sentence is permitted to go from one court district in which he is being supervised to another court district, jurisdiction over him may be transferred, in the discretion of the court, from the court for the district from which he goes to the court for the other district having jurisdiction over the offense of which the defendant was convicted, with the concurrence of the latter court. . . .”
The trouble with all arguments advanced by petitioner to the effect this section of our statute sustains his position on this claim is that the facts of record do not bring him within the purview of its terms. There is nothing in the record to warrant or permit a conclusion that, after granting him a parole, the district court of McPherson County ever transferred its jurisdiction over petitioner to the district court of Sedgwick County. Hence it cannot be successfully argued the provisions of 62-2242, supra, sustain petitioner s position on the point now under consideration.
Petitioner directs our attention to G. S. 1959 Supp., 62-2251, providing
“Any prisoner who commits a crime while at large on parole or conditional release and is convicted and sentenced therefor shall serve such sentence concurrently with the term under which he was released, unless otherwise ordered by the court in sentencing for the new offense.”
and insists that its provisions require the sustaining of his second claim that after the date of the revocation of his Sedgwick County parole and the reinstatement of the sentence imposed he began to serve time on his McPherson County sentence concurrently with the Sedgwick County sentence. We do not agree. The provisions of the statute just quoted have application to a prisoner who commits a new crime while at large on parole or conditional release and is convicted and sentenced therefor. Here again, the facts of record fail to bring petitioner within the scope of the statute on which he relies. He did not commit the Sedgwick County crime while at large on parole or conditional release. Indeed, under the undisputed facts of record, that crime was not new but was committed prior to the effective dates of the McPherson County sentence and parole. Under such circumstances it is so clear the provisions of 62-2251, supra, do not sustain petitioner’s position on his second claim that it borders on the ridiculous to give time and space to many of the arguments advanced by him with respect thereto.
Nothing would be gained by prolonging this opinion. It suffices to say that after careful consideration of all claims and contentions made by the petitioner we find nothing in the record which warrants or permits this court to reverse or set aside the order and judgment of the district court of Leavenworth County holding that peti tioner is now legally confined in the state penitentiary under a valid judgment and sentence. Therefore the action of that tribunal in denying his application for a writ of habeas corpus must be affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
This is the seventh appeal in the continuing litigation over the estate of Charles E. Snyder of Leavenworth and his wife Isabelle. The sixth case appears as In re Estate of Snyder, 189 Kan. 1, 366 P. 2d 802, where there is found a complete list of the other appeals. The case last mentioned gives an account of the sale of the Lavery Building by Snyder to his wife for a price which the court found to be $20,000 more than its fair market price. The facts concerning the sale are set out in the above opinion and need not be repeated here since that opinion will appear in the same volume of our reports as does this opinion.
This appeal concerns the collecting of the rents from the Lavery Building after the sale of the building to Isabelle Snyder in 1953. It would appear that Mr. Charles E. Snyder collected the rents in April and that the May rents were collected or received by James N. Snyder as executor of Charles E. Snyder’s estate. It would also appear that the executor of Charles’ estate received certain rents for June and that on August 31, 1953, the executor paid over these rents to the Manufacturers State Bank and that they were put in a special account at the bank. At that time, James N. Snyder was an officer of the bank and his brother Elmore was president of the bank. From that time on, the bank seems to have collected the rents and paid the taxes and upkeep on the building.
Charles E. Snyder died May 3, 1953, and his wife Isabelle died June 19, 1954. It appears that the district court has found that Isabelle had been incompetent to transact business since 1947, and had been totally incompetent during the last two years of her life (see In re Estate of Snyder, supra).
The abstract herein shows that in November, 1958, the present action was filed by the Manufacturers State Bank as a declaratory judgment action in the district court. In its petition the bank asked for a determination of the title to the building. Fern E. Brunt, as special administratrix of the estate of Isabelle H. Snyder, filed an answer in which it was alleged that plaintiff bank had wrongfully withheld the money due the estate and asked for special damages.
In a reply the bank took issue with the defendant as to its wrongful withholding of the money, and further asked for a reasonable service charge for collecting of the moneys.
The district court immediately held that the title of the building was in Isabelle at the time of her death and devoted time to the matter of the accounting of the bank and especially to its assertion of a right to collect the rent.
It is also stated in the abstract that shortly after the death of Charles E. Snyder, his son and executor found in Charles’ private bank box the deed from the bank to Isabelle and also found two executed warranty deeds — one a true carbon copy, but also fully exe cuted. This deed fully signed, executed and acknowledged conveyed the Lavery Building back to the Manufacturers State Bank and was signed by Isabelle Snyder and Charles E. Snyder, her husband. The abstract states the deed was dated April 8,1953. Revenue stamps were attached to the deed from the bank to Isabelle but the deed to the bank bore no revenue stamps. The facts as to the finding of these deeds in Charles’ box were alleged in the plaintiff’s petition.
There can be no question that the district court felt that the bringing into the picture this deed from Isabelle and her husband to the bank was perhaps a wrongful attempt to assert title in the building. What else could give rise to plaintiff’s action? Why should it have doubt as to the title of the real estate?
The court seemed to feel that the bank stood in no better position than a trespasser in the whole situation, since it was at least quite obvious to anyone who was an officer of the bank that the deed of April 8,1953, had never been delivered.
The district court found the matter of the accounting to be correct; denied plaintiff a right to a management fee; but allowed interest to the estate at the rate of six percent per annum on a quarterly basis on all moneys collected by the bank from May 1, 1953, to May 22,1959, and amounting to a sum of $2,625.05. There would seem to be no question that the bank did have the use of the money during all the time for which it was charged interest.
Plaintiff bank has appealed only from the allowance of interest, and from the denial of the management fee.
These questions are largely ones of fact. It has even been difficult to give a clear picture of the facts surrounding these transactions. The district court heard all of the evidence, and has also heard all of the evidence as to the Lavery Building in general (see In re Estate of Snyder, 189 Kan. 1, 366 P. 2d 802, referred to in the beginning.)
As to whether the court’s decision was supported by the évidence, we would say that either way the court might have decided there would be evidence in the record to support it. In such a situation, this court may only affirm the court’s decision.
In a somewhat similar case, Rapier v. Bank, 105 Kan. 606, 185 Pac. 888, the court said:
“Testimony which cannot be harmonized by any process of reconciliation was given respecting every fact directly or collaterally in issue. In arguing her case the plaintiff relies on the testimony favorable to herself. The jury evidently relied on that favorable to tire bank. Leaving out of consideration, as this court must do, the testimony which the jury disregarded, there was substantial evidence warranting every inference necessary to sustain the verdict, and that closes the controversy over the facts.”
Attention may also be directed to the cases noted under 2 West Kan. Dig. Appeal é- Error § 1002.
The judgment appealed from is affirmed, and it is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
In the court below, appellee sued the appellant as defendant alleging that plaintiff on October 7, 1958 had entered defendant’s place of business as a customer and business invitee and that she suffered personal injury when she stepped upon a metal plate or cover of a fire-hose well which had been allowed to become wet and slippery, and that plaintiff was thus caused to fall and suffer serious injury. It was further alleged and shown in plaintiff’s evidence that the plate or cover was directly in front of the main office door and within the main area where people had to walk in entering the office. Plaintiff also showed that the day of the accident was rainy and that water had collected near the well cover; that after she fell she examined the metal cover which was wet and seemed to be slick and slippery.
The defendant contended that it was required to have the fire well at that location because of the ordinances of the city of Kansas City, but its own witness the Fire Chief indicated that he did not think it wise to have the well exactly in front of the door; that he would have approved a location at one side of the door as long as the fire well was available. He further testified that there were a number of different covers which were, approved; that he made no selection between the covers as to an avoidance of their becoming slippery but left that to the store owner; and further testified that the fire department had not raised any question about covering the metal plate with a light rubber mat or rug, and that many store owners did so cover such plates. Plaintiff testified defendant’s cover was under a light rubber mat at all times after plaintiff’s accident.
In defendant’s brief there is some disposition to argue the demurrer to plaintiff’s evidence alone without considering all of the evidence. Of course, when defendant introduced its own evidence, it waived the demurrer to plaintiff’s evidence alone and must fall back upon the motion for directed verdict at the close of all the evidence, see Ziegelasch v. Durr, 183 Kan. 233, 326 P. 2d 295; and Ogilvie v. Mangels, 183 Kan. 733, 332 P. 2d 581, and other cases.
Defendant argues that it was only following the law; that it had no notice that the plate was slick. From defendant’s own evidence the jury had a right to believe defendant had a hand in the location of the fire well and it may be noted defendant had no trouble in covering the plate immediately after plaintiff’s injury.
We feel that defendant cannot contend that it had no part in the location of the fire well. In view of its own evidence, it had a great deal to do with it. In Little v. Butner, 186 Kan. 75, 348 P. 2d 1022, we were concerned with a slick floor. The owner said he had no notice of its slickness. We held at page 81 of that opinion that where the proprietor had a part in the creation of the slickness of the floor, no notice of its danger was required.
Another matter covered in defendant’s brief may be noted. We are cited to certain early cases by this court where the trial court allowed evidence to the effect that there had been no other accidents prior to plaintiff’s injury. Defendant points out that the court below refused such evidence in the trial of the instant case, and claims the defendant is therefore entitled to a new trial.
We would direct attention to the annotation in 31 A. L. R. 2d 190 wherein the admissibility of such evidence is discussed. It is noted that evidence of no accidents is especially inconclusive (p. 195) and we quote the following from the annotation (p. 196):
“However, several of the more recent and better-considered cases appear to have adopted the view that while the confusion incidental to the investigation of collateral issues may justify the exclusion of such evidence, some such confusion is inherent in the consideration of almost any item of circumstantial evidence, and the matter is primarily one of trial administration, which should ordinarily be left to the reasonable discretion of the trial court.”
We further direct attention to the cases cited in section 3 of the annotation, p. 196.
In view of the above, we are content to hold that defendant has failed to show any reversible error in this exclusion of evidence.
Careful attention has been made to the matters urged as to the jury’s instructions and all other matters contained in the defendant’s brief. We have heretofore settled the main contention between the parties, and see no reason to state it over and over in different ways.
The judgment of the district court is hereby affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Wertz, J.:
Defendant (appellant) Gilbert Trams appeals from a conviction of burglary with explosives as defined by G. S. 1949, 21-525, and grand larceny as defined by G. S. 1959 Supp., 21-533. Upon notice and proof of a prior conviction of a felony he was sentenced on each count under the habitual criminal act (G. S. 1949, 21-107a) to confinement in the Kansas State Penitentiary, the sentences to run concurrently.
At the outset we are confronted with the state’s challenge of the defendant’s right to be heard. In view of the challenge it is unnecessary to relate the facts of the crime other than to say that there was ample evidence to sustain the conviction as to both counts of the information.
Throughout the trial defendant was represented by able counsel. After the jury returned its verdict of guilty counsel filed a motion for a new trial based upon five alleged trial errors: (1) the admission of illegal testimony; (2) refusing to grant a continuance, not permitting defendant to call alibi witnesses, and in allowing the admission of the testimony of one Retha Scott; (3) the verdict was not sustained by sufficient evidence; (4) the verdict was contrary to law; and (5) advising the jury after it had retired to deliberate that the state had dismissed count one of the information.
The motion for new trial came on for hearing. Counsel for the defendant stated that he desired to present to the court one item, i. e., that the court erred in failing to instruct the jury on lesser offenses of burglary of which defendant might have been found guilty, and further stated that probably this was the best argument he could present to the court on his motion for a new trial. The trial court overruled defendant’s motion, and defendant appeals to this court and specifies as error: (1) that the verdict was contrary to law in that the defendant was not arraigned; (2) defendant was prevented from introducing alibi witnesses; (3) the admission of the testimony of Retha Scott; and (4) that the verdict was contrary to law by reason of the failure to submit to the jury forms of verdict finding the defendant not guilty.
The first and fourth specifications of error were neither included in defendant’s motion for a new trial nor presented at the hearing on the motion, and none of defendant’s specifications of error was presented to the trial court at the hearing on the motion for a new trial. The aforementioned alleged error argued at the hearing of the motion for new trial has since been abandoned by defendant.
The rule in this jurisdiction is well established that reversible error cannot be predicated on trial errors which were not urged or presented to the trial court on the hearing of a motion for a new trial. (State v. Hayes, 169 Kan. 505, 219 P. 2d 442.) Moreover, it is a long-standing rule of this court that in a criminal action alleged trial errors not heard or presented at the hearing of a motion for a new trial are unavailing on appeal. (State v. Tague, 188 Kan. 462, 363 P. 2d 454; State v. Burnett, 189 Kan. 31, 32, 367 P. 2d 67.)
This court has repeatedly held that specifications of error not included in the grounds of the motion for a new trial and called to the trial court’s attention cannot be considered on appeal from a conviction in a criminal case. (State v. McManaman, 175 Kan. 33, 258 P. 2d 997; State v. Stewart, 179 Kan. 445, 447, 296 P. 2d 1071; State v. Haught, 180 Kan. 96, 100, 299 P. 2d 573; State v. Morrow, 186 Kan. 342, 349 P. 2d 945; State v. Hickock and Smith, 188 Kan. 473, 482, 363 P. 2d 541.)
Inasmuch as defendant’s first and fourth specifications of error were not included in his motion for a new trial and his second and third specifications of error, along with his first and fourth, were not called to the attention of the trial court nor urged at the hearing on the motion for a new trial, defendant is not entitled to be heard. Notwithstanding, we have carefully considered his contentions of error and have determined that each is without merit.
As to defendant’s first specification of error, the record clearly discloses that defendant was properly arraigned before trial and entered a plea of not guilty. Moreover, when the case was called for trial the trial court inquired if the parties were ready, and the defendant without objection announced he was ready for trial. It is settled law that arraignment and plea may be waived and it is waived in effect by an announcement that defendant is ready for trial. (State v. Stitz, 111 Kan. 275, Syl. ¶ 5, 206 Pac. 910; State v. Cruse, 112 Kan. 486, 212 Pac. 81; In re Bundy, 144 Kan. 64, 58 P. 2d 80.)
With reference to defendant’s second specification of error, the amended information charging the time, place and nature of the offense alleged to have been committed was filed March 10, 1961. On April 4 defendant waived arraignment, and the case was set for trial April 10 without objection on the part of the defendant and without evidencing any intention of using alibi witnesses. Not until April 7, three days before the trial, and some twenty-seven days after the filing of the information, did defendant serve notice on the county attorney of his intention to support an alibi by three named witnesses. Concurrently he filed his motion for permission to serve and file the notice. G. S. 1949, 62-1341 provides in part that such notice shall be served on the county attorney as much as seven days before the action is called for trial and that unless defendant gives the notice as prescribed he shall not be permitted to offer evidence to the effect that he was in some other place at the time of the offense charged. Compliance with the requirements of the mentioned statute has been held to be a prerequisite to the admissibility of the testimony of alibi witnesses. (State v. Osburn, 171 Kan. 330, 232 P. 2d 451.)
The record fails to disclose that defendant’s motion was denied, and nowhere in the record is it disclosed that defendant was denied any right to introduce any witnesses that he wished to present. Defendant went to trial without objection, he presented no affidavits of alibi witnesses nor did he give any reason why they could not be present either at the time of the trial or on the motion for a new trial. In State v. Berry, 170 Kan. 174, 223 P. 2d 726, we held that where the ground of the motion for a new trial is error in the exclusion of evidence or want of a fair opportunity to produce evidence, such evidence must be produced on the hearing of the motion by affidavit, deposition or oral testimony. Not only did defendant fail to argue this question upon the hearing of the motion for a new trial but he failed to proffer any of the foregoing prerequisites for presenting the matter to the trial court. (State v. Beam, 175 Kan. 814, 267 P. 2d 509.)
Defendant’s third specification of error is the admission of the testimony of Retha Scott, a co-defendant. The record discloses that she only testified as to her residence and age. This alleged error was neither presented nor argued to the trial court; moreover, it has no merit.
Defendant’s fourth specification of error, that the court failed to submit to the jury forms of verdict finding defendant not guilty, is not supported by the record. Defendant was charged with the burden of establishing the fact that not guilty verdicts were not submitted. There is nothing in the record to indicate that the trial court failed to submit not guilty verdicts. That error will not be presumed is an elementary rule and needs no citation. (State v. Russell, 182 Kan. 649, 655, 323 P. 2d 913.) There is a presumption in the absence of an affirmative showing to the contrary that the action of the trial court was regular in accordance with the law. (Rothman v. Globe Construction Co., 171 Kan. 572, 235 P. 2d 981; Babb v. City of Wichita, 172 Kan. 416, 422, 423, 241 P. 2d 755.)
Long ago, in The State v. Durein, 70 Kan. 1, 78 Pac. 152, this court committed itself to the rule that in a criminal appeal the record of the proceedings in the trial court will not be interpreted to show error if it be susceptible of a reasonable interpretation to the contrary. (State v. Smith, 171 Kan. 722, 726, 237 P. 2d 388.)
After a careful examination of the record we are convinced the defendant had a fair trial and that a proper verdict was returned. The judgment of the trial court below is affirmed.
It is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
In the petition for rehearing counsel has convinced the court that an erroneous statement was made in the opinion of the court, ante, p. 14. This statement had to do with the matter of contributory negligence and the special question to the jury No. 5. The court became overpowered with the language of section 8-547, G. S. 1949. It has been the rule of this court at least since Union Pac. Ry. Co. v. Hand, 7 Kan. 380, at page 388, that the burden of proof as to the issue of contributory negligence is on the defendant. See further, Hoff v. Johnston, 186 Kan. 214, 349 P. 2d 873; Stephens v. McGuire, 184 Kan. 46, 334 P. 2d 363; Avery v. City of Lyons, 183 Kan. 611, 331 P. 2d 906. Anything said to the contrary in the opinion in the case at bar is hereby disapproved.
As to the other issues in the case, the petition for rehearing is denied. It is so ordered. | [
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Leben, J.:
The district court dismissed criminal charges against Kayle Lawrence because the trial setting was 313 days after arraignment and thus violated a statutory 180-day deadline. But delays that are “as a result of the application or fault of the defendant” do not count against the deadline under the statute. See K.S.A. 2006 Supp. 22-3402(2). We must decide whether enough of those 313 days do not count so that the 180-day deadline had not been exceeded. The largest single delay, 131 days, was caused by the defendant waiting to ask for a jury trial until about a week before a non-jury trial was set to begin, causing the trial to be postponed. On our review, those 131 days and 75 others are at tributable to the application or fault of the defendant under the speedy-trial statute and not counted against the deadline. Because only 107 of the allowable 180 days had been used and no other provision of the speedy-trial statute was violated, we find that the case should not have been dismissed.
Most of the Pretrial Delays Here Were Requested by or Caused by the Defense.
Lawrence was charged with misdemeanor driving under the influence of alcohol and another traffic infraction. He was arraigned on February 9, 2005; a court trial was set for March 29, 2005. Before that trial could proceed, Lawrence and his attorney had differences and the attorney moved to withdraw. That motion was granted on March 25, 2005, and the initial trial date was removed.
Lawrence made one appearance without counsel at a scheduling docket on April 13, 2005, and ultimately got a new attorney on board on May 10,2005. His new attorney said that he needed about 30 days to review the case and asked for it to be continued. The court agreed to the continuance and — apparently unaware that an arraignment had already been held — set an arraignment for June 8, 2005.
At the June 8 hearing, the defendant waived arraignment, and the case was set for trial to the court on July 20. A week before trial, however, the defendant filed a jury-trial demand. Upon the filing of that demand, the July 20 trial setting was removed and a pretrial hearing was set for August 3. On July 29, 2005, defense counsel requested a 2-week continuance of the August 3 hearing. The defense motion for continuance was granted; the court set a new hearing date of September 14.
At the September 14 hearing, the case was set for jury trial on November 21, 2005. When that date arrived, however, the State asked for a continuance. The State’s motion was granted and a new trial date of December 19, 2005, was set. On that date, the defendant asked to postpone the trial date so that he could present a written motion to dismiss on speedy-trial grounds. The court agreed to do so, and the defendant explicitly waived any time re quired to consider the motion forward from speedy-trial consideration.
For the convenience of the reader, the dates of key events and the number of days transpiring between each event are listed in the following table.
Our Review Is Unlimited and Governed by the Speedy-Trial Statute.
When, as here, the relevant facts are not in dispute, a claimed violation of the right to a speedy trial presents an issue of law; thus this court has unlimited review. State v. Adams, 283 Kan. 365, 368, 153 P.3d 512 (2007). The case is determined by application of subsections (2) and (3) of K.S.A. 2006 Supp. 22-3402 as amended in 2004:
“(2)- If any person charged with a crime and held to answer on an appearance bond shall not be brought to trial within 180 days after arraignment on the charge, such person shall be entitled to be discharged from further liability to be tried for the crime charged, unless the delay shall happen as a result of the application or fault of the defendant, or a continuance shall be ordered by the court under subsection (5).
“(3) If any trial scheduled within the time limitation prescribed by subsection (1) or (2) is delayed by the application of or at the request of the defendant, the trial shall be rescheduled within 90 days of the original trial deadline.”
The Trial Court Found a Violation of the Speedy-Trial Statute.
The trial court concluded that only the 42-day period from August 3, when a pretrial hearing was continued at the request of the defense, until September 14, when that pretrial was held and a trial date was set, should be counted against the defendant. The trial court did not charge any time against the defendant for events occurring before the scheduled July 20 trial date. The court instead granted the State an additional 90 days beyond the normal 180-day limit, citing K.S.A. 2006 Supp. 22-3402(3); this provided a 270-day period following arraignment to bring the defendant to trial. Having granted that additional 90 days, the court said that delays caused by the defense after the July 20 trial date would extend the speedy-trial deadline, but delays occurring before that date would not be counted. The court concluded that the State’s deadline to bring the defendant to trial had been December 18, 2005, or 312 days after arraignment, which was calculated by adding the 42 days to the 270-day limit. Because that was 1 day before the trial had been set to begin, tire court granted the motion to dismiss.
There Is No Violation of the Standard 180-Day Speedy-Trial Limit Here.
We begin our analysis by reviewing the application of the standard 180-day limit of subsection (2) of K.S.A. 2006 Supp. 22-3402 to the facts of our case. There are several disputes between the parties here as to whether the time period to be charged to the defense begins on the date a motion for continuance is granted or on a later date, such as when a trial had been scheduled to take place. The parties also dispute when the time charged to the defense ends, especially with respect to the lengthy continuance caused by the defendant’s demand for jury trial.
The Supreme Court’s recent opinion in State v. Brown, 283 Kan. 658, 157 P.3d 624 (2007), provides substantial guidance. Although the defendant in Brown was in custody and covered by the 90-day time limit of subsection (1) of the statute while Lawrence was out of custody and covered by 180-day time limit of subsection (2), the provisions of those subsections are identical for the purpose of all of our determinations. The court in Brown faced a trial continuance on defendant’s motion to allow time to obtain an expert witness. As in our case, the date initially chosen as the new trial date when granting the defense continuance was later postponed at the State’s request (in Brown due to illness of the prosecutor). Under those facts, the Supreme Court held that “the delay from the date the judge granted the defendant’s motion for continuance of trial until the rescheduled trial date was chargeable against the defendant.” (Emphasis added.) 283 Kan. 658, Syl. ¶ 2. Specifically, the Supreme Court assessed against the defendant the time from the granting of his motion until the trial date initially chosen after the defense motion for continuance was granted. Applying that holding to our case results in assessment against the defendant of the 131 days from July 13, 2005, until November 21, 2005.
Lawrence’s argument that the time charged to the defendant should begin on the date of the scheduled hearing or trial — not the date each of his continuance motions was granted — is thus foreclosed by Brown. Lawrence makes additional arguments, though, in an attempt to avoid having those 131 days charged to him.
First, he argues that the continuance from August 3 to September 14 should not be charged against him. He contends that the August 3 hearing was made by the court without consulting defense counsel’s schedule and that the defendant only asked for a 2-week continuance of the August 3 hearing, not the 6 weeks that tran spired between the initial hearing setting and the revised date chosen by the court. The district judge responded to this argument by saying, “I don’t believe our practice has been to hold the Court to whatever defendant unilaterally says would be the date that the continuance should be granted to.” We agree. So long as a reasonable date is chosen by the court in rescheduling the hearing, the time from the granting of the continuance until the new date should be charged to the defendant under Brown.
Second, Lawrence argues that the time from September 14, when he agreed to a trial date, until the scheduled trial setting of November 21, should be charged to the State. Once again, this is foreclosed by Brown and rightly so. There is no indication in the record that picking a jury-trial setting about 2 months after that pretrial conference was an unreasonable choice given the court’s calendar or that it caused any undue delay. In a previous, unpublished opinion, this court has held that “[w]ithout evidence to the contrary, we presume the jury trial setting was reasonable within the parameters of the court’s docket.” State v. Chambers, No. 92,722, slip op. at 10 (August 26, 2005), rev. denied 280 Kan. 985 (2005). There is nothing in this record suggesting that the choices made by the trial court for settings, including the selection of dates for jury trial, were unreasonable. And so long as the district court reschedules the trial within a reasonable time on a defense request for continuance, the speedy-trial clock remains stopped. See Brown, 283 Kan. 658; State v. Dreher, 239 Kan. 259, 261, 717 P.2d 1053 (1986).
Charging the full delay caused by the defendant’s juiy demand against him is especially reasonable here given the timing of his request. K.S.A. 2006 Supp. 22-3404(1) requires that a defendant’s jury-trial demand in a misdemeanor case be filed in writing within 7 days of the first notice of trial assignment. Lawrence got notice of his initial trial assignment at his February 9 arraignment, which made his jury demand due by February 16. The Shawnee County District Court further highlights this requirement by including it in Local Rule 3.318, which both repeats the statutory requirement and advises that “any delay of trial occasioned by any jury request later made . . . shall be charged to the party making the untimely request.”
While we have resolved how to handle the 131-day period that began on the July 13 filing of defendant’s jury demand, we still must decide how much of the time from arraignment on February 9 until July 13 is to be counted against the speedy-trial deadline. Lawrence conceded that the 15 days from the initial trial setting of March 29 until the next court hearing on April 13 should not count. But Lawrence did not get a new attorney by the time of the April 13 court appearance, and the case had to be further delayed so that he could obtain counsel. Any delay caused by change in defense counsel is properly, chargeable to tibe defendant and does not count against the deadline. State v. Timley, 255 Kan. 286, 293-96, 875 P.2d 242 (1994); State v. Wright, 26 Kan. App. 2d 879, 883, 995 P.2d 416 (2000). Thus, we do not count the 27 days from April 13 until defense counsel entered an appearance on May 10. And when defense counsel appeared on May 10, he did not announce “ready for trial” — he asked for a continuance to review the case. The defendant concedes that the 29 days from May 10 until the next hearing on June 8 also are chargeable to the defense and do not count against the deadline.
One final disputed time period is also resolved by the Brown case. Lawrence refused to concede that the time clock was not running between March 24, when his attorney’s withdrawal was approved and the court granted a continuance of the March 29 trial setting, and March 29. Under Brown, though, the defendant is charged with the time beginning on the granting of the requested continuance, which occurred on March 24, and those 4 days also are charged against the defendant. In total, then, 75 days do not count against the deadline between arraignment and the request for jury trial.
After this review of the time that is not counted against the deadline because it occurred as a result of the application or fault of the defendant, we find no violation of the statutory requirement that trial be set within 180 days of arraignment: 206 of the 313 days that transpired between arraignment and the scheduled December 19 trial do not count against the deadline. Thus, only 107 of the allowable 180 days had been used. Unless some other provision of the speedy-trial statute was violated, the case should not have been dismissed.
There Is No Violation Here of the Separate Statutory Provision Requiring Trials To Be Reset Within 90 Days of the “Original Trial Deadline.”
The parties disagree over the application of subsection (3) of K.S.A. 2006 Supp. 22-3402, a provision added in 2004. It provides that when a scheduled trial is delayed at the defendant’s request, it “shall be rescheduled within 90 days of the original trial deadline.”
The State argues that this extends the 180-day period to 270 days when the defense requests a continuance; the district court agreed but concluded that some continuances shouldn’t be charged to the defense since the State had received an additional 90 days.
The State’s position is illogical and lacks a basis in the statutory language. Nothing in subsections (1), (2), or (3) suggests that subsection (3) provides a time period that is tacked onto the 90-or 180-day limits of the other subsections. There is ample authority that the speedy-trial clock simply does not run under subsections (1) and (2) when the delay is at the request or fault of the defendant. As the Supreme Court summarized the rule in Brown, “[A] trial continuance granted to a defendant for any reason stops the speedy trial clock.” 283 Kan. at 665. It would be inconsistent with this well-established meaning of subsections (1) and (2) to interpret subsection (3) to extend the overall deadline by 90 days, as this court recently recognized in State v. Dobbels, No. 94,808, unpublished opinion filed February 9, 2007, rev. denied 284 Kan. 948 (2007):
“[I]t makes no sense, common or otherwise, to interpret subsection (2) as tolling the running of the 180-day speedy trial period during periods of defense continuances, yet interpret subsection (3) as effecting an enlargement of the speedy trial period to 270 days upon a defense request for a continuance. If the speedy trial clock is not running, there is no need to enlarge the speedy trial period.” Slip op. at 8.
We agree. Subsection (3) does not provide an additional 90-day period to be added to the time limit otherwise applicable when trials are postponed at the defendant’s request.
Lawrence argues that subsection (3) is simply a separate time limit. Under the defense view, it does not increase the 180-day window, but it does require that the trial commence within 90 days of the original trial deadline as set at arraignment. In this case, the defense notes that the “original trial deadline” at the time of arraignment on February 9 was August 8, making November 7 the 90-day deadline for the rescheduled trial. Because both the November 21 and December 19 trial dates were after that, the defendant argues that subsection (3) was violated and supports the district court’s dismissal of the charges.
The defendant’s position fails to consider either prior caselaw or common sense in its interpretation of what “original trial deadline” is the starting point from which the trial must be scheduled within 90 days. This court has previously held that the term “original trial date,” now found in K.S.A. 2006 Supp. 22-3402 subsection (5), means the scheduled trial date at the time the decision was made to extend the trial date. State v. Corrigan, 10 Kan. App. 2d 55, 58, 691 P.2d 1311 (1984), rev. denied 237 Kan. 888 (1985). In Dobbels, this court found that the analysis in Corrigan was equally applicable to interpretation of the phrase “original trial deadline” in subsection (3):
“Logically, then, the term ‘original trial deadline,’ in subsection (3), should mean the trial deadline date existing at the time the trial court considers the defendant’s continuance request. In other words, the trial court, in granting a particular defense continuance, must reschedule the trial within 90 days of the then existing trial deadline date to comply with the mandates of subsection (3).” Slip op. at 7.
We again agree with the Dobbels opinion.
A hypothetical case will demonstrate the practical flaw in Lawrence’s argument. Under the defendant’s construction, the 90-day deadline for rescheduling a trial might well already have expired before the defendant’s motion for trial continuance. For example, assume that an arraignment takes place on January 1, but that the defendant asks to delay the case for 6 months to allow for testing of DNA samples or to allow related cases to sort themselves out. If the defendant is out of custody, the “original trial deadline” as it existed at the time of arraignment was June 30. Assume that a trial is then set for October 15, and the defendant moves for a continuance. No speedy-trial hurdle would be posed by the standard 180-day deadline under subsection (2) because the delay for discovery or other matters under our hypothetical has all been charged to the defendant. But under the defendant’s view of subsection (3), since the never-extended “original trial deadline” had already expired on June 30 and 90 days after that deadline had expired on September 28, then even if the court granted the defendant’s continuance motion, it could not reschedule the trial. Such a result could not have been intended by the legislature.
We hold, then, that the phrase “original trial deadline” in subsection (3) of K.S.A. 2006 Supp. 22-3402 refers to the trial deadline in place at the time the trial is continued “by the application of or at the request of the defendant.” In our case, the trial was twice delayed for these reasons. There was no violation of subsection (3) on either of these occasions.
The first defense continuance was granted on March 25, when the March 29 trial setting was removed because defense counsel had been allowed to withdraw. The court reset the trial for July 20, well within the 180-day time limit from arraignment.
The second defense continuance was granted on July 13, when the July 20 trial setting was removed because the defendant requested a jury trial. The court reset the trial for November 21. As of July 13, the trial deadline was 180 days after the February 9 arraignment plus any days charged to the defense as of July 13. We have determined that the 75 days from March 25, when defense counsel withdrew, until June 8, when new defense counsel was ready for a trial date to be set, are properly charged to the defense. Thus, the trial deadline as of July 13 was October 22, which included 180 days following arraignment plus the 75 days between arraignment and July 13 that were properly charged to the defense. Subsection (3) of the statute requires that the trial be rescheduled within 90 days of that date, which gave the court until January 20, 2006, to begin trial. The November 21 trial date was well within this statutory deadline. Even the additional continuance granted the State in November, which moved the trial to December 19, did not violate the requirement of subsection (3).
Our conclusion is further supported by consideration of additional delays caused by the defense after the November 21 trial date was set. The defense asked for a continuance of the August 3 hearing the court had set for the purpose of picking a trial date acceptable to all parties. Thus, the defense was responsible for the 6-week continuance of that hearing. Logically, any defense continuances obtained after the trial is rescheduled should not count against the subsection (3) deadline. Otherwise the court would not be able to grant reasonable defense continuance requests after resetting a trial date at the request of a defendant.
We have assumed for the purposes of this analysis that the requirement of subsection (3) is a mandatory speedy-trial rule, not a directory one. But that is not at all clear from the language of the statute. Subsections (1) and (2) contain an explicit penalty for noncompliance: the defendant “shall be entitled to be discharged from further liability to be tried for the crime charged.” Subsection (3) does not contain any language providing a consequence for noncompliance.
The Kansas Supreme Court has considered a similar issue under another time deadline applicable to criminal cases. In State v. Rivera, 277 Kan. 109, 83 P.3d 169 (2004), the court noted that the requirement of K.S.A. 22-2902 that preliminary hearings “shall be held . . . within 10 days after the arrest or personal appearance of the defendant” was directoiy, not mandatoiy, because the statute “does not establish a penalty.” 277 Kan. at 112 (citing State v. Fink, 217 Kan. 671, 676, 538 P.2d 1390 [1975]). If subsection (3) is directory, not mandatory, then noncompliance would not automatically require dismissal of the charges, though the court could still consider whether the general constitutional speedy-trial requirement or other mandatory provisions of the statute had been violated, requiring dismissal of the charges. See Rivera, 277 Kan. at 112; Fink, 217 Kan. at 676-77. We are not required to decide whether subsection (3) is mandatory or directoiy in order to decide this case. Accordingly, we have not done so.
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MALONE, J.:
Tracy L. Atchison appeals the district court’s order terminating shared residency, granting primary residency of the minor children to Brenda L. Atchison, and ordering Tracy to pay child support with a 15% parenting time adjustment. Tracy raises three issues on appeal: (1) the district court erred when it modified child support without a material change in circumstances; (2) the district court erroneously applied the Kansas Child Support Guidelines (Guidelines) regarding shared residency; and (3) the district court erred by finding that 15% was the maximum parenting time adjustment it could apply to Tracy’s child support obligation.
Brenda and Tracy were divorced on April 14, 2005. There were three minor children of the marriage. In a separate order filed on April 21, 2005, the district court approved a shared residency arrangement, finding that Brenda and Tracy regularly shared the residency of the children on an equal or nearly equal basis. The district court ordered Brenda and Tracy to share the direct ex penses set forth in the parenting plan on an equal basis. The district court further instructed the parties as follows:
“In order to accomplish the required sharing, which will be on an equal basis, each party is required to submit a schedule of direct expenses paid during the previous calendar month. That schedule must particularly identify the expenditure to be shared, the amount of the expenditure, the date the services were incurred or goods purchased, the date payment was made and the payee. That schedule must be presented before the 10th day of each month. ... On or before the 23rd day of each month, reimbursement should be made by each party to the other.”
After application of the shared residency rule, Tracy was ordered to pay Brenda $93 per month child support in addition to the equal sharing of expenses.
On August 16, 2006, Brenda filed a motion to modify child support. In the motion, Brenda alleged that she had the children two-thirds of the time and that she was burdened with a disproportionate share of the children’s expenses. On October 19, 2006, the district court held a hearing on the matter. Brenda testified that under the parenting schedule, Tracy was supposed to have the children 43% of the time. However, Brenda testified that because of work conflicts and trips out of town, Tracy did not actually have the children for all of his allotted time. According to Brenda’s records, after subtracting the time the children spent in school, the children were with Tracy only 32% of the time.
Brenda further testified that Tracy was not sharing the direct expenses as required by the district court’s order. Brenda testified that even though she had kept a record of her expenses and had submitted an expense sheet to Tracy for every month from May 2005 through August 2006, Tracy had failed to submit an expense sheet to her since March 2006. According to Brenda, she provided receipts of her expenditures to Tracy, but Tracy rarely provided receipts to Brenda. Brenda testified that Tracy would never meet with her to reconcile expenses, and there was 1 month that Tracy had asked to see Brenda’s expense sheet before he could decide what information to include on his expense sheet. According to Brenda, Tracy sometimes reimbursed her for expenses by having one of the children bring her a check. Brenda testified that she and Tracy argued as much now as when they were married, and she indicated that the shared residency arrangement had been a source of tension and stress between the parties since the divorce was granted.
Tracy testified at the hearing as well. He testified that he usually picked up the children from school every day and cared for them until Brenda got off work at 6 p.m., except for the oldest child when she was participating in sports. Tracy testified that he provided for the children’s direct expenses, but he acknowledged that he did not always turn in a record of the expenses to Brenda.
At the conclusion of the hearing, the district court terminated the shared residency order and granted primary residency of the children to Brenda. The district court found that a “degree of enmity exists between the parties that make[s] it difficult, if not impossible, for them to effectively communicate in a manner that might facilitate an order of shared custody.” The district court specifically found that there had been no mutual sharing of direct expenses on a monthly basis since March 2006, and that Brenda had been “bankrolling the direct expenses.” Although the district court found that Tracy had not been accounting for his share of the expenses, the district court acknowledged that Tracy “spends significant periods of time parenting his minor children.” Accordingly, the district court ordered Tracy to pay child support pursuant to the Guidelines but granted Tracy a 15% parenting time adjustment, resulting in a monthly child support obligation of $905. Tracy timely appeals.
Material change in circumstances
On appeal, Tracy claims that the district court erred by modifying the child support order without a material change in circumstances as required by K.S.A. 2006 Supp. 60-1610(a)(l). Brenda argues that Tracy has failed to preserve this issue for appeal.
A party who fails to raise the issue of a material change in circumstances in district court is precluded from arguing the issue on appeal. State ex rel. Dix v. Plank, 14 Kan. App. 2d 12, 14, 780 P.2d 171 (1989). Here, Tracy did not file a response to Brenda’s motion to modify child support, nor did Tracy raise the issue of whether there had been a material change in circumstances at the hearing in district court. Thus, Tracy has failed to properly preserve this issue for appeal. In any event, it appears there was a material change in circumstances to justify modification of child support, based upon Tracy’s failure to account for expenses and based upon the tension and stress between the parties caused by the shared residency order.
Shared residency
Next, Tracy contends that the district court erroneously applied the Guidelines regarding shared residency. Tracy maintains that he and Brenda have the children for equal or nearly equal amounts of time, and the district court erred in terminating the shared residency order.
The standard of review of a district court’s order determining the amount of child support is whether the district court abused its discretion. However, interpretation and application of the Guidelines is subject to unlimited review. In re Marriage of Cox, 36 Kan. App. 2d 550, 553, 143 P.3d 677 (2006). Furthermore, an appellate court reviews the district court’s findings of fact to determine if the findings are supported by substantial competent evidence and are sufficient to support the district court’s conclusions of law. Substantial evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. An appellate court has unlimited review of conclusions of law. LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007). Finally, an appellate court does not weigh conflicting evidence, pass on credibility of witnesses, or redetermine questions of fact. 283 Kan. at 19.
We begin by noting that the Guidelines have been revised since Brenda’s motion to modify child support was decided by the district court. See Guidelines (2007 Kan. Ct. R. Annot. 107) (revised Guidelines). However, the revised Guidelines became effective on January 1,2008, and were not in effect at the time the district court considered Brenda’s motion to modify child support.
At the time the district court considered Brenda’s motion to modify child support, the Guidelines provision regarding shared residency provided:
“Shared residency is the regular sharing of residential custody on an equal or nearly equal basis. To qualify for shared residency treatment, two components must exist. First, die blocks of time must be regular and equal or nearly equal rather than equal based on a nonprimaiy residency extended parenting time basis (i.e., summer visitation, holidays, etc.). Second, the parties must be sharing direct expenses of the child on an equal or nearly equal basis. Direct expenses include, but are not limited to, clothing and education expenses, but do not include food, transportation, housing or utilities.
“No shared residency treatment shall be ordered without the court having approved a plan for paying and sharing expenses. The court shall require that a detailed expense sharing payment plan be submitted by the party or parties requesting the shared residency treatment. Failure to adhere to the expense sharing plan may result in sanctions including, but not limited to, imposition of full child support and/or an order for payment of specific expenses.” Guidelines § III.B.7. (2006 Kan. Ct. R. Annot. 111-12).
Tracy’s primary argument is that he and Brenda have the children for equal or nearly equal amounts of time and, thus, the district court erred in terminating the shared residency order. According to Tracy’s calculations, he has the two youngest children 66.25 hours per week, Brenda has them 64.5 hours per week, and they are in school the remainder of the time. Tracy asserts he has the oldest child 57.5 hours per week, Brenda has her 64.5 hours per week, and she is in school or extracurricular activities the remainder of the time. By averaging the time spent with the children, Tracy concludes that he has the children 49.5% of their out-of-school time and Brenda has them 50.5% of the time.
Tracy’s argument ignores the fact that the district court terminated the shared residency order based on its findings that there had been no mutual sharing of direct expenses and that Tracy had failed to account for his payment of expenses as ordered by the court. The district court did not need to reach the issue of whether Brenda and Tracy spent equal or nearly equal time with the children because Tracy had failed to comply with the sharing of direct expenses component of the court’s order. Without both shared time and shared expenses, a shared residency arrangement cannot succeed. In re Marriage of Karst, 29 Kan. App. 2d 1000, 1002, 34 P.3d 1131 (2001); Guidelines § III.B.7. (2006 Kan. Ct. R. Annot. 111-12).
Tracy acknowledges that he may have neglected to adhere fully with the letter of the district court’s order concerning sharing of direct expenses. However, he argues that he complied with the “spirit” of the order because he paid substantial expenses for the children without ever requesting reimbursement. Nevertheless, the shared residency order directed the parties to keep records of their expenses and to exchange monthly expense sheets by the 10th day of each month. The evidence is undisputed that Tracy failed to comply with these requirements of the shared residency order.
One of the remedies available to the district court when one of the parties has failed to adhere to the shared residency order, as Tracy admitted to doing here, is the imposition of full child support. That is the option exercised by the district court in this case. The plain language of the shared residency section of the Guidelines supports the district court’s action: “[fjailure to adhere to the expense sharing plan may result in sanctions including, but not limited to, imposition of full child support and/or an order for payment of specific expenses.” Guidelines § III.B.7. (2006 Kan. Ct. R. Annot. 111-12). It is clear that the district court acted within the Guidelines in terminating the shared residency order.
Although the revised Guidelines were not in effect when the district court considered Brenda’s motion, we note that the revised Guidelines caution parties against using a shared expense formula. The revised Guidelines recommend a parenting time adjustment rather than the use of a shared expense formula when parents share the children’s time equally or nearly equally. According to the revised Guidelines:
“Sharing expenses and using the formula should only be attempted by parents who communicate well, who are highly cooperative co-parents, who have the ability and willingness to keep accurate records for the period of time necessary to raise their children, who will timely share the children’s direct expenses, who have similar values and tastes, who have considered the current and future needs of their children carefully, and who are willing and able to resolve minor problems without the intervention of others.” Guidelines § III.B.7. (2007 Kan. Ct. R. Annot. 114).
This case provides a good example of why the revised Guidelines caution parties against using a shared expense formula. Such a par enting plan will only succeed with the most highly motivated parents, and it did not work here for the Atchisons. The district court’s findings that Tracy failed to comply with the shared expense order and that he failed to account for his share of the direct expenses were supported by substantial competent evidence, and the district court did not erroneously apply the Guidelines regarding shared residency. Therefore, the district court did not err in terminating the shared residency order.
Parenting time adjustment
Finally, Tracy argues that the district court erred by finding that 15% was the maximum parenting time adjustment it could apply to Tracy’s child support obligation. As previously stated, the standard of review of a district court’s order determining the amount of child support is whether the district court abused its discretion. However, interpretation and application of the Guidelines is subject to unlimited review. In re Marriage of Cox, 36 Kan. App. 2d at 553.
Child support adjustments are discretionaiy with the court, and the party seeking the adjustment has the burden of proof to show that an adjustment should apply. Guidelines § IV.E. (2006 Kan. Ct. R. Annot. 117). The Guidelines provide for a parenting time adjustment in favor of the parent not having primary residency of the child depending on the amount of time the child spends with the nonresidential parent. Section IV.E.2.a. of the Guidelines in effect when the district court considered Brenda’s motion provided:
“If the child spends 35% or more of the child’s time with the parent not having primary residency and the court does not find that it is a shared residential situation as defined in III.B.7, the court shall determine whether an adjustment in child support is appropriate. In calculating the parenting time adjustment, the child’s time at school or in day care shall not be considered. To assist the court, the following table may be used to calculate the amount of parenting time adjustment.” (Emphasis added.) (2006 Kan. Ct. R. Annot. 119).
The revised Guidelines have expanded the application of the parenting time adjustment, but the language for the adjustment the district court granted to Tracy has remained the same. See Guidelines § IV.E.2.b. (2007 Kan. Ct. R. Annot. 122). The table referred to in the Guidelines specifies a 5% parenting time adjustment when the child’s percentage of time with the nonresidential parent is 35% to 39%; a 10% parenting time adjustment when the child’s percentage of time with the nonresidential parent is 40% to 44%; and a 15% parenting time adjustment when the child’s percentage of time with the nonresidential parent is 45% to 49%. (2006 Kan. Ct. R. Annot. 119). See 1 Practitioner’s Guide to Kansas Family Law § 5.38 (Leben ed. 2004) (explaining how to calculate a parenting time adjustment).
As previously discussed, the district court terminated the shared residency order because Tracy had failed to account for his share of direct expenses, not because Tracy failed to spend an equal or nearly equal amount of time with the children. In fact, in the journal entry modifying child support, the district court specifically found that the children spent 45% of their time with Tracy. Brenda has not appealed this finding, and in any event, we conclude the finding was supported by substantial competent evidence. Based on this finding, the district court allowed a parenting time adjustment of 15% on Tracy’s child support obligation.
Tracy argues that because Guidelines § IV.E.2.a. permits rather than directs the district court to use the parenting time adjustment table, the district court was not limited to a 15% maximum parenting time adjustment in Tracy’s situation. Tracy asserts the district court should have considered other factors in determining the parenting time adjustment. Tracy does not indicate what parenting time adjustment would have been more appropriate, but he simply argues that the district court was not bound by a 15% maximum.
As a general rule, use of the Guidelines is mandatory and failure to follow the Guidelines is considered reversible error. Any deviation from the amount of child support determined by the use of the Guidelines must be justified by written findings in the journal entiy. Failure to justify deviations by written findings constitutes reversible error. In re Marriage of Thurmond, 265 Kan. 715, 716, 962 P.2d 1064 (1998).
Here, it is clear from the record that the district court concluded that 15% was the maximum parenting time adjustment it was per mitted to give Tracy. In the journal entry modifying child support, tire district court found that the “children spend 45% of their time with the parent not having primary residence [Tracy], thus allowing this Court to make a maximum parenting time adjustment of 15%.” (Emphasis added.) Also in the journal entry, the district court cited In re Marriage of Cox, 36 Kan. App. 2d at 553, and stated “use of the child support guidelines is mandatory, and failure to follow the guidelines is reversible error.” However, the district court did not quote the part of the opinion that indicates the court may deviate from the Guidelines provided the deviation is explained in the journal entry.
At the hearing to stay the judgment, the district court asked if Tracy had any authority for the district court to award a higher parenting time adjustment:
“The Court: But do you agree that the guidelines say I’m not to give more than the 15 percent if I determine that the sharing is between, I think it’s, 40 and 45 percent?
“[Tracy’s counsel]: I don’t agree because I think that’s all still discretionary down there. I think that’s how Your Honor read it, that you have to do it that way, and what I’m saying is I think it’s discretionary.”
The district court indicated a belief that it must “follow the guidelines, period.” Because Tracy could not cite a specific appellate decision authorizing more than an a 15% parenting time adjustment, the district court concluded that it was bound by the Guidelines in allowing a 15% maximum.
As Tracy pointed out to the district court, § IV.E.2.a. of the Guidelines provides that a court may use the table provided in the Guidelines to calculate the amount of the parenting time adjustment. However, the court is not required to do so. Although the maximum parenting time adjustment permitted in the table is 15%, there is discretion built into the Guidelines for the court to consider a different amount. See In re Marriage of Cox, 36 Kan. App. 2d at 554 (although business depreciation expense is addressed in the Guidelines, the Guidelines leave room for judicial discretion in determining whether depreciation should be deducted as a reasonable business expense).
Furthermore, a court may always deviate from the Guidelines provided that such deviation is justified by written findings in the journal entry. Although the Guidelines table recommends a 15% parenting time adjustment for someone in Tracy’s situation, a court may deviate from this figure provided that such deviation is justified in writing. Here, the district court indicated that it was required to grant Tracy only a 15% parenting time adjustment, and die district court did not seem to be aware that it could deviate from the Guidelines provided that the deviation was justified by written findings in the journal entry. As a result, the district court failed to properly exercise its discretion in determining the appropriate parenting time adjustment to award to Tracy.
We do not know from the record how much of a parenting time adjustment the district court would have allowed had the court exercised greater discretion. It is very possible that the district court may consider a 15% parenting time adjustment for Tracy to be appropriate under the facts and circumstances of this case. Nevertheless, we conclude the case must be remanded to allow the district court to reconsider the parenting time adjustment and to exercise its discretion on this issue as permitted under the Guidelines.
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Malone,J.:
The State of Kansas appeals the district court’s decision granting motions to suppress evidence arising from a vehicle stop. This is a consolidated appeal involving codefendants, Peter J. Marx and Desiree M. Marx. The district court suppressed the evidence because it found the vehicle stop was unlawful. We agree with the district court’s finding that the vehicle stop was not justified as a public safety or community caretaking stop. However, we disagree with the district court’s finding that the sheriff s deputy lacked reasonable suspicion to stop the Marxes’ vehicle for failure to maintain a single lane, in violation of K.S.A. 8-1522. The motions to suppress raised other issues which the district court did not reach that involve disputed facts and require credibility determi nations. Accordingly, we remand the case to district court for further proceedings.
Factual and procedural background
On August 22, 2006, Deputy Cory Doudican, of the Lyon County Sheriff s Department, was stopped on the side of the Kansas Turnpike at milepost 127 assisting a motorist. As the Marxes’ motor home passed by Doudican’s location, a hubcap flew off the motor home and landed near Doudican. After retrieving the hubcap, Doudican followed the motor home, now on 1-35, and caught up with the motor home around milepost 128. Doudican ultimately stopped the motor home at milepost 129 after he saw it cross the fog line, overcorrect, and cross the centerline.
Doudican exited the patrol car and walked to the passenger side of the vehicle. Doudican observed Peter in the passenger seat and Desiree as the driver. Doudican informed the Marxes that he stopped them in order to return their hubcap and also because they failed to maintain the motor home in a single lane. Doudican subsequently testified at the suppression hearing that the primary reason for the stop was the traffic infraction.
Peter rolled the window down halfway to allow Doudican to pass the hubcap through the passenger window, and Doudican detected a “brief smell of burnt marijuana.” Doudican requested driver’s licenses, vehicle registration, and proof of insurance from the Marxes. Desiree accompanied Doudican back to the patrol car, where Doudican verified there were no outstanding warrants and checked the Marxes’ driver’s licenses and vehicle registration. Doudican confirmed that the licenses and registration were in compliance, handed the documents and a warning ticket back to Desiree, and informed her she was free to leave.
As Desiree started to open the door of the patrol car, Doudican asked if she would answer a few more questions, to which she agreed. Doudican asked if the Marxes were in possession of any illegal drugs, and Desiree denied that any drugs were in the motor home. Doudican asked for permission to search the motor home, and Desiree refused to consent to a search. Doudican then told Desiree that he intended to run his drug dog around the motor home anyway. Upon hearing this, Desiree exited the patrol car, walked rapidly towards the motor home, entered the motor home, and shut the door. Doudican exited the patrol car and followed Desiree towards the motor home, shouting at her to stop.
Doudican looked through the side door of the motor home, as well as through the large back glass of the vehicle, and noticed the Marxes moving back and forth between the medicine cabinet and the bathroom. Doudican repeatedly ordered the Marxes to exit the motor home, but they did not initially comply. After a few minutes, Desiree exited the motor home and was placed under arrest for obstruction of official duty. Peter later exited the motor home, and he was also placed under arrest for obstruction. After being Mirandized, the Marxes made incriminating statements. A search of the motor home’s interior and septic tank revealed drugs and paraphernalia.
The Marxes were charged in Lyon County District Court with obstructing official duty, possession of cocaine, possession of marijuana, possession of drug paraphernalia, and failure to pay drug tax. The Marxes filed motions to suppress all physical and testimonial evidence, claiming that the stop and search of the vehicle were unlawful. At the suppression hearing, the State asserted that the initial stop of the motor home was justified based on either a public safety stop because of the hubcap or based upon reasonable suspicion of a traffic infraction. The State maintained that once Doudican detected the odor of marijuana, he was authorized, at the very least, to detain the Marxes and deploy the drug dog. The State argued there was reasonable suspicion to detain the Marxes even after Doudican told Desiree she was free to go, and whether Doudican was being truthful when he told Desiree she was free to go was irrelevant. Finally, the State asserted that Desiree’s return to the motor home and the Marxes’ actions while inside the motor home were intervening factors that attenuated the taint of an illegal stop.
After hearing the evidence, the district court granted the motions to suppress. The district court found that Doudican was not motivated by a desire to return the hubcap and the vehicle stop was not justified as a public safety stop. The district court also found there was no reasonable suspicion that the Marxes violated either K.S.A. 8-1522, failure to maintain a single lane, or K.S.A. 8-1548, failure to signal a turn. Because the district court found the vehicle stop was unlawful, the district court suppressed all evidence and statements without reaching other issues raised in the motions. The State filed this appeal.
Standard of review
“In reviewing a district court’s decision regarding suppression, this court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]” State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
Additionally, the State bears the burden of proving the lawfulness of a search and seizure by a preponderance of the evidence. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006).
Public safety stop
The State contends the district court erred in finding that the vehicle stop was not justified as a public safety stop or a community caretaking stop. The State argues that the separation of the hubcap from the motor home posed a threat to public safety, and that this danger justified Doudican’s stop of the motor home.
The Kansas Supreme Court first recognized the concept of a community caretaking stop in State v. Vistuba, 251 Kan. 821, 840 P.2d 511 (1992). In Vistuba, the officer testified that she observed erratic driving and was concerned that the driver might be impaired. However, the officer specifically stated that she did not suspect any criminal activity from her observations. 251 Kan. at 822. The Supreme Court determined the stop was lawful and held: “[A] civil or criminal infraction is not always essential to justify a vehicle stop. Safety reasons alone may justify the stop, if the safety reasons are based on specific and articulable facts.” 251 Kan. at 824.
In State v. Gonzales, 36 Kan. App. 2d 446, 141 P.3d 501 (2006), this court further refined the appropriate justification for a public safety stop and the limited duration and scope of such a stop. In Gonzales, an officer stopped the defendant’s vehicle when the officer observed a “bouncy” rear tire and an open hatch over the fuel cap. After the stop, the officer immediately asked for information about ownership of the vehicle and demanded the occupants’ driver’s licenses, rather than examining the problematic tire. After several minutes of questioning, the driver consented to a search of the vehicle. The court upheld the initial vehicle stop for public safety reasons, but the court also held the subsequent search of the vehicle was illegal because the duration of the stop exceeded the scope of the public safety justification. 36 Kan. App. 2d at 458.
The Gonzales court determined that the legality of a public safety stop can be evaluated in three steps. First, as long as there are objective, specific, and articulable facts from which a law enforcement officer would suspect that a citizen is in need of help or is in peril, the officer has the right to stop and investigate. Second, if the citizen is in need of aid, the officer may take appropriate action to render assistance. Third, once the officer is assured that the citizen is not in peril or is no longer in need of assistance, any actions beyond that constitute a seizure, implicating the protections provided by the Fourth Amendment to the United States Constitution. 36 Kan. App. 2d at 456.
In applying the public safety rationale, courts employ careful scrutiny “so the protections of the Fourth Amendment are not emasculated. [Citations omitted.]” Gonzales, 36 Kan. App. 2d at 455. Courts have held that the primary motivation of a valid public safety stop must be for community caretaking purposes. See, e.g., Corbin v. State, 85 S.W.3d 272, 276-77 (Tex. Crim. App. 2002) (“[A] police officer may not properly invoke his community caretaking function if he is primarily motivated by a non-community caretaking purpose.”); State v. Link, 136 Wash. App. 685, 696, 150 P.3d 610 (2007) (doctrine not applicable where primary motivation was to investigate). In Gonzales, this court held that a public safety stop is not for investigative purposes. 36 Kan. App. 2d at 457. Although a police stop for a traffic violation may be pretextual in nature, see Whren v. United States, 517 U.S. 806, 813, 135 L. Ed. 2d 89, 116 S. Ct. 1769 (1996), a community caretaking stop is justified only if the officer is motivated by public safety concerns.
Here, the district court determined that Doudican’s stop was not primarily motivated by community caretaking concerns. The district court noted that Doudican did not immediately stop the motor home as soon as he caught up to it, but instead Doudican followed the motor home for about 1 mile before he stopped the Marxes for the traffic infraction. Also, Doudican testified he was looking for a violation to stop the motor home, and Doudican clearly testified the real reason for the stop was the perceived traffic infraction. Substantial competent evidence supports the district court’s decision that Doudican’s primary motivation in stopping the motor home was due to a traffic infraction, not to return the hubcap.
Doudican’s motivation aside, the Marxes argue that losing a hubcap is not a sufficient reason to justify a public safety stop. We agree. Although the Gonzales court upheld the initial vehicle stop for public safety reasons, the court expressly rejected the open fuel hatch as justification for the stop. The court stated: “There is no dispute that the open hatch cover was not perceived as a safety problem; even [the officer] referred to it as a ’courtesy’ to alert the driver to that condition. It was the bouncing tire that was the alleged safety concern.” 36 Kan. App. 2d at 453.
Here, under the initial prong of the test enunciated in Gonzales, there were no facts that suggested to Doudican that a citizen was in need of help or was in peril at the time of the stop. Doudican already had the hubcap in his possession, and there was only a minimal risk that the motor home might lose other hubcaps on the highway in such a manner as to endanger the public. Consistent with the court’s determination in Gonzales that the open fuel hatch did not implicate public safety, Doudican’s return of the hubcap more closely resembled a “courtesy” to the Marxes rather than a concern for public safety. We conclude as a matter of law that the stop of the Marxes’ motor home was not warranted under a public safety rationale.
We further note that even if the initial stop had been justified for public safety reasons, this would not have authorized Doudican to extend the scope of the stop in order to check the motor home’s registration and run a warrants check on the Marxes. As the court determined in Gonzales, where the driver was stopped for having a bouncy tire, the justification for the stop was limited to an examination of the tire to determine if it was safe to continue driving. 36 Kan. App. 2d at 457. Here, even if Doudican was justified in stopping the motor home because of the hubcap, the scope of the stop would have been limited to returning the hubcap and checking the other hubcaps on the motor home to see if they were secure.
For these reasons, we affirm the district court’s finding that Doudican’s stop of the Marxes’ motor home was not justified as a public safety stop.
Failure to maintain a single lane
The State claims that if the stop of the Marxes’ motor home was not lawful under a public safety rationale, the stop was nevertheless authorized as Doudican had reasonable suspicion that Desiree had violated K.S.A. 8-1522 by fading to maintain the motor home within a single lane. The undisputed testimony by Doudican was that the Marxes’ motor home crossed the fog line once, overcorrected, and crossed the centerline in its lane of traffic. Doudican immediately stopped the motor home when he saw this maneuver, and he later testified this was the primary reason for the stop.
Kansas law provides that an “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.” K.S.A. 22-2402(1). Doudican stopped the Marxes for violating K.S.A. 8-1522, which provides, in relevant part:
“Whenever any roadway has been divided into two (2) or more clearly marked lanes for traffic, the following rules in addition to all others consistent herewith shall apply.
“(a) A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such movement can be made with safety.”
The interpretation of a statute is a question of law over which an appellate court has unlimited review. An appellate court is not bound by the district court’s interpretation of a statute. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
“The fundamental rule of statutory construction is to ascertain the legislature’s intent. 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. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. [Citation omitted.]” Bryan, 281 Kan. at 159.
The district court relied on State v. Ross, 37 Kan. App. 2d 126, 149 P.3d 876 (2007), rev. denied 284 Kan. 950 (2007), to determine that Doudican had no reasonable suspicion that K.S.A. 8-1522 was violated by the Marxes’ conduct. In Ross, the defendant’s vehicle was stopped after the officer observed the defendant cross the fog line only once. Ross was arrested for driving with an expired license. Illegal drugs and paraphernalia were found, for which Ross was charged. 37 Kan. App. 2d at 127-28.
On appeal, this court reversed the district court’s failure to grant the defendant’s motion to suppress, holding that the officer’s observation that Ross crossed the fog fine only once did not, without more, provide reasonable suspicion that K.S.A. 8-1522 had been violated. 37 Kan. App. 2d at 131. The court reasoned that the “essential gravamen” of K.S.A. 8-1522 requires a showing that a vehicle’s movement from a lane of traffic cannot be made with safety. 37 Kan. App. 2d at 130. The court concluded that in order for the State to establish reasonable suspicion that K.S.A. 8-1522 has been violated, “the totality of the circumstances must make it appear to the officer that not only did the defendant’s vehicle move from its lane of travel, but it left its lane when it was not safe to do so.” (Emphasis added.) 37 Kan. App. 2d at 130.
The Ross decision was heavily criticized in United States v. Jones, 501 F. Supp. 2d 1284 (D. Kan. 2007). In Jones, the officer observed a vehicle driven by one of the defendants weave out of its lane, crossing the fog line by a tire width. Believing that K.S.A. 8-1522 had been violated, the officer stopped the vehicle, and a subsequent search revealed the defendants in possession of cocaine. The defendants argued that, under Ross, the evidence should be suppressed. 501 F. Supp. 2d at 1285.
The Jones court denied the defendants’ motion to suppress. According to Jones, the Ross opinion is “ambiguous on whether an officer has reasonable suspicion of a K.S.A. 8-1522 violation only if the lane movement was actually unsafe or whether it is enough that the officer reasonably suspects the driver failed to determine first the safety of the lane movement.” 501 F. Supp. 2d at 1292. The Jones court noted that K.S.A. 8-1522 was patterned after § 11-309 (2000) of the Uniform Vehicle Code. 501 F. Supp. 2d at 1292. According to Jones, the Ross decision is in “conflict with the well-reasoned precedent of other jurisdictions and, in particular, the well-established line of Tenth Circuit precedent interpreting [K.S.A. 8-]1522(a).” 501 F. Supp. 2d at 1298.
The Tenth Circuit has consistently held that a vehicle drifting out of a lane, even one time, can provide reasonable suspicion of a violation of K.S.A. 8-1522 when, under the circumstances, the driver should reasonably be expected to maintain a straight course. See United States v. Alvarado, 430 F.3d 1305, 1309 (10th Cir. 2005) (relatively minor infraction of crossing a fog line can create reasonable suspicion of violating Utah’s version of K.S.A. 8-1522); United States v. Ozbirn, 189 F.3d 1194, 1199 (10th Cir. 1999) (reasonable suspicion of a K.S.A. 8-1522 violation was found where defendant’s motor home crossed the fog line twice within a quarter mile).
The Jones court also discussed the “reasonable suspicion” standard sufficient to stop a driver for violating K.S.A. 8-1522, in relation to considering a motion to suppress evidence seized during the stop. According to Jones, the court’s role is not to decide whether the facts are sufficient to sustain a conviction under K.S.A. 8-1522, but whether they are adequate to form an objectively reasonable suspicion that the defendant’s vehicle was being operated in violation of the statute. If an officer reasonably believes in good faith that a traffic violation has occurred, the stop is valid even if it ultimately turns out that the driver is not guilty of the traffic violation. Jones, 501 F. Supp. 2d at 1298 n.15.
Returning to our facts, the evidence is undisputed that Doudican observed the Marxes’ motor home cross the fog line, overcorrect, and cross the centerline. This is an inherently unsafe maneuver. There was no evidence presented by either party of any obstruction in the roadway which would have reasonably caused the motor home to swerve. Doudican immediately activated his emergency lights and conducted a traffic stop. He informed Desiree that one reason for the stop was her failure to maintain a single lane. Doudican later testified that this was the primary reason for the stop.
Under these facts, we conclude the district court erred as a matter of law in finding that Doudican lacked reasonable suspicion to stop the Marxes’ motor home for failure to maintain a single lane, in violation of K.S.A. 8-1522. In reaching this conclusion, we decline to follow the Ross court’s interpretation of K.S.A. 8-1522. We interpret K.S.A. 8-1522 to mean that a vehicle shall be driven as nearly as practicable entirely within a single lane of traffic. The “nearly as practicable” language allows a driver to momentarily move outside a lane of traffic due to special circumstances such as weather conditions or an obstacle in the road. Otherwise, the driver must stay in one lane. The statute further provides that if a driver intentionally decides to move his or her vehicle from its lane of traffic, the driver must first ascertain that such movement can be made with safety.
The Marxes argue that the State failed to produce evidence to establish whether there were special circumstances which may have caused Desiree to leave her lane of traffic, such as weather conditions or an obstacle in the road. We recognize that the State bears the overall burden of proving the lawfulness of a search and seizure by a preponderance of the evidence. Porting, 281 Kan. at 324. However, if there was a special circumstance such as an obstacle in the road which caused Desiree to swerve the motor home, it would seem that this is evidence only she could provide. The State is not required to prove a negative. Although the prosecutor could have asked Doudican if he observed anything that might have caused the motor home to swerve, the prosecutor’s failure to ask this question was not fatal. This was a suppression hearing where the State was required to show reasonable suspicion for a stop, not a trial where the State was attempting to convict Desiree of violating K.S.A. 8-1522.
Doudican’s observation that the Marxes’ motor home crossed the fog line, overcorrected, and crossed the centerline established reasonable suspicion of a violation of K.S.A. 8-1522 sufficient to justify the stop. Moreover, even if Desiree subsequently provided a legitimate defense for moving from her lane of traffic, such as to avoid an obstacle in the road, this would not invalidate the stop as long as Doudican reasonably believed in good faith that a traffic violation had occurred.
The district court also determined that Doudican did not have reasonable suspicion to stop the Marxes’ motor home for a violation of K.S.A. 8-1548, failure to signal a turn. Because we conclude the district court erred in interpreting K.S.A. 8-1522, we do not need to reach the district court’s decision concerning the alleged violation of K.S.A. 8-1548.
In summary, we agree with the district court’s finding that the vehicle stop was not justified as a public safety or community care-taking stop. However, we conclude the district court erred in finding that Doudican lacked reasonable suspicion to stop the Marxes’ motor home for failure to maintain a single lane in violation of K.S.A. 8-1522. Thus, the vehicle stop was lawful. However, this does not necessarily mean that the Marxes’ motions to suppress should be denied. There were several issues raised in the motions which the district court never reached. These issues included whether Doudican’s investigation exceeded the scope of the initial traffic stop, whether the extended detention was justified based upon the odor of marijuana, whether Desiree’s consent to answer Doudican’s questions after she was told she was free to go was voluntary under the totality of the circumstances, and whether the Marxes’ conduct in allegedly obstructing official duty attenuated the taint of any unlawful police conduct. These issues involve disputed facts which require credibility determinations only the district court can make. Accordingly, we remand the case to district court for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded. | [
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Bukaty, J.:
Michael H. Chetwood appeals his probation revocation in one case and his sentence in another in these consolidated appeals. He argues in both that the State violated its plea agreement. He argues in just one of the cases that the district court erred in enhancing his sentence with prior convictions not proven to a jury beyond a reasonable doubt.
Chetwood agreed to plead guilty to a felony committed while he was on probation for another felony. In one of the terms of the plea bargain, the State agreed to recommend to the sentencing court a disposition of probation to residential community corrections on both the old and the new felony. The prosecutor made that recommendation to the district court at the sentencing hearing. He then introduced a community corrections officer (CCO) who recommended Chetwood be sentenced to a prison term without probation. Finding that this amounted to a violation of the terms of the plea bargain, we reverse and remand.
In 01CR1637, Chetwood pled guilty to one count of felony theft. On February 4, 2005, he was sentenced to 12 months’ probation with an underlying term of 10 months’ imprisonment.
On October 12, 2005, the State charged Chetwood in 05CR2727. In that case he pled no contest to one count of burglary and one count of misdemeanor theft. The plea agreement provided that the State would recommend probation to residential community corrections. In the written plea agreement Chetwood acknowledged, and the district court found, that he understood the consequences of the agreement and voluntarily entered his plea. The court explained at the hearing that it was not bound by the sentencing recommendation in the plea agreement.
On March 9, 2006, Chetwood appeared at a hearing scheduled to address both the probation revocation in 01CR1637 and his sentencing in 05CR2727. The State recommended that the underlying sentence in 01CR1637 run consecutive to the sentence imposed in 05CR2727 and that the district court grant probation to Chetwood to residential community corrections. The prosecutor then told the court, “And, Your Honor, Miss Meyer is present from Community Corrections and would have a recommendation on the disposition of probation.”
The CCO then recommended imprisonment. She stated that she understood “that the plea agreement has been px-esented to the Court. I feel that the defendant has had an opportunity to be probation [sic], and he went back out and re-offended, creating another victim. So I’m going to stand with my recommendation, Your Honor.” She further stated that Chetwood committed the new offense just a few days after she had met with and counseled him. The CCO did not prepare the presentence investigation (PSI) report in either case.
The district court then sentenced Chetwood to 19 months’ imprisonment in 05CR2727. It also revoked the probation in 01CR1637 and ordered Chetwood to serve the original 10-month sentence consecutive to the new sentence. The court correctly pointed out that although the offense in 05CR2727 was presumptive probation, special sentencing rules applied because the offense was committed while on probation and therefore incarceration was not a departure.
On appeal, Chetwood argues that the State violated the plea agreement when the CCO provided a sentencing recommendation contraiy to that in the plea agreement. He urges this violation requires this court to vacate his sentence or allow him to withdraw his plea.
The facts render it appropriate here that we first determine whether this court has jurisdiction even though neither party raised the issue. Whether jurisdiction exists is a question of law over which an appellate court has unlimited review. Foster v. Kansas Dept. of Revenue, 281 Kan. 368, 369, 130 P.3d 560 (2006).
First, it appears that this court lacks jurisdiction to review the sentence in the newest case since Chetwood received a presumptive sentence. See K.S.A. 21-4721(c)(l); State v. Flores, 268 Kan. 657, 659, 999 P.2d 919 (2000). He was sentenced in accordance with K.S.A. 2006 Supp. 21-4603d(f), which provides that when a new felony is committed while on probation for a prior felony, the sentencing court must impose consecutive sentences and the new sentence may be imprisonment, even if the new crime was presumptive probation. Accordingly, the imprisonment sentence for the new crime does not constitute a departure sentence. K.S.A. 2006 Supp. 21-4603d(f).
Second, Chetwood did not object to the CCO’s recommendation or the alleged violation of the plea agreement during sentencing. Generally, issues not raised below cannot be raised for the first time on appeal. State v. Rojas, 280 Kan. 931, 932, 127 P.3d 247 (2006). However, a new legal theory can be raised for the first time on appeal if (1) it involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theory is necessary to serve the ends of justice or prevent a denial of fundamental rights; or (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. State v. Schroeder, 279 Kan. 104, 116, 105 P.3d 1237 (2005). Additionally, a defendant can take a direct appeal and assert that the State violated the plea agreement. State v. Crawford, 246 Kan. 231, 234, 787 P.2d 1180 (1990).
Because the State’s alleged violation of the plea agreement implicates Chetwood’s due process rights, the fundamental rights exception applies. See McGoldrick v. State, 33 Kan. App. 2d 466, 472, 104 P.3d 416, rev. denied 279 Kan. 1007 (2005). Furthermore, Chetwood is asserting that the State violated the plea agreement. Accordingly, this court has jurisdiction to address the merits of the appeal.
As we stated, Chetwood contends the State violated the plea agreement because the CCO recommended a sentence contrary to the sentence that the State agreed to recommend in the plea agreement. This court has unlimited review of such claims. 33 Kan. App. 2d at 472. The State’s failure to abide by the terms of a plea agreement denies the defendant due process. 33 Kan. App. 2d at 472; State v. McDaniel, 20 Kan. App. 2d 883, 888, 893 P.2d 290 (1995). In Santobello v. New York, 404 U.S. 257, 261-62, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), the Court held that a plea must be voluntarily and knowingly made, and if it was induced by promises, those promises must be made known and fulfilled.
Here, the written plea agreement in 05CR2727 indicated that in exchange for Chetwood’s no contest plea, the
“State will recommend the low number on Count 1 and 12 months on Count 2; Counts to run consecutive to one another. The State will recommend that in case 01 CR 1637, that the underlying sentence of 10 months be imposed consecutive to 05 CR 2727, the present case. As to sentence recommendations in 05 CR 2727 and disposition recommendations in 01 CR 1637, the State recommends that the defendant be placed on probation with Community Corrections - Residential. The Defendant is free to seek an alternative disposition.”
At sentencing, the prosecutor made the recommendation called for in the agreement. He then introduced the CCO. She voiced her recommendation that was contrary to the prosecutor’s on the issue of incarceration versus probation.
Chetwood asserts that although the prosecutor followed the plea agreement and recommended probation, the CCO’s recommendation of incarceration violated the plea agreement because the State knew the CCO had a recommendation. He maintains that the State “put on the testimony” of the CCO, which violated the plea agreement and sabotaged the State’s recommendation. He contends the State effectively recommended incarceration through the CCO’s testimony and the district court followed this recommendation in making its decision.
Whether a CCO’s sentencing recommendation violates a plea agreement made between the defendant and the State presents a question of first impression for this court.
As a starting point in our analysis, we note that in Kansas, a district court is not bound by plea agreements or sentencing recommendations. The court may impose a sentence independent of any agreement or recommendations of the parties. State v. Boley, 279 Kan. 989, 993, 113 P.3d 248 (2005); see K.S.A. 21-4713. Sentencing courts are not allowed to be a party to a plea agreement and are not bound by its terms. State v. Boswell, 30 Kan. App. 2d 9, 13, 37 P.3d 40 (2001). It logically follows that if the CCO was an agent of the court, then she was not a party to the plea agreement, she was not bound by its terms, and her recommendation did not violate the plea agreement. On the other hand, if the CCO was an agent of the State and not the court, then she was bound by the plea agreement and her recommendation violated the plea agreement. See Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843 863 P.2d 364 (1993) (where KDOR was determined to be an agent of the State foreclosed from collecting a drug tax from a defendant under K.S.A. 79-5202 by the terms of a plea agreement between the defendant and the prosecutor in a related criminal case).
The State argues that a CCO may testify and offer recommendations concerning probation under K.S.A. 2006 Supp. 21-4610(b). That section provides that “[fjor crimes committed on or after July 1, 1993, in presumptive nonprison cases, the court services officer or community correctional services officer may recommend, and the court may order, the imposition of any conditions of probation or assignment to a community correctional services program.” K.S.A. 2006 Supp. 21-4610(b). By its plain words, however, the statute does not address whether or when a CCO may offer a recommendation as to whether probation should be granted in the first place. The statute does not bear on the issue before us.
The State also contends that the district court did not rely on the CCO’s recommendation in making its decision. The problem with the argument in this case is that one has to speculate without a clear indication from the record as to how much weight the sentencing court accorded to the CCO’s comments in maldng its decision. We simply do not know. Also, it strikes us that the question of whether an accused received due process should not turn on the difficult discernment in most cases of just how much effect any one factor or recommendation had on a sentencing court’s decision to grant or deny probation.
Some jurisdictions have held that plea agreements bind only the prosecutor. See, e.g., State v. Rogel, 116 Ariz. 114, 116, 568 P.2d 421 (1977) (plea agreements are between the defendant and the prosecutor because “the State” refers only to the prosecutorial branch; police who prepare the PSI do not participate in the negotiations nor the agreement); State v. Sanders, 294 Mont. 539, 547, 982 P.2d 1015 (1999), overruled on other grounds State v. Lone Elk, 326 Mont. 214, 108 P.3d 500 (2005) (a probation officer is free to recommend a sentence contrary to that agreed on by the State because the officer’s recommendation is not equivalent to the prosecutor’s recommendation); State v. Harris, 102 Wash. App. 275, 287, 6 P.3d 1218 (2000), aff'd State v. Sanchez, 146 Wash. 2d 339, 46 P.3d 774 (2002) (the CCO was a neutral and independent participant in the sentencing process and was not functioning as the State’s agent, was not a party to the plea agreement, and was not bound by it); State v. McQuay, 154 Wis. 2d 116, 130-31, 133, 452 N.W.2d 377 (1990) (like the sentencing judge, the person conducting the PSI is not bound by the terms of the plea agreement; probation officers act on behalf of the independent judiciary and are not agents of the State when preparing a PSI).
Of significance in Harris, the court noted that the CCO was not called by the State, nor did the State elicit further information from the CCO. The Harris court also noted that jurisdictions are split on the issue of who is bound by a plea agreement. 102 Wash. App. at 282-87.
The United States Tenth Circuit Court of Appeals appears to draw a distinction between a probation officer who conducts the PSI and other officers. The officer conducting the PSI is neutral and is acting as an agent of the court because the preparation of a PSI is not a prosecutorial function. United States v. Rogers, 921 F.2d 975, 979 (10th Cir.), cert. denied 498 U.S. 839 (1990). But in Allen v. Hadden, 57 F.3d 1529, 1535 (10th Cir.), cert. denied 516 U.S. 1000 (1995), the court held that when United States attorneys negotiate and enter into plea agreements, the federal government agrees to the terms of the agreement; however, through specific language, the government can limit its obligation to certain agents).
Other jurisdictions have likewise found an agreement by the prosecutor binds other officers. See United States v. Harvey, 791 F.2d 294, 302-03 (4th Cir. 1986) (the government at large is obligated on plea agreements entered into by United States attorneys; the obligation can be limited with specific language); Lee v. State, 501 So. 2d 591, 593 (Fla. 1987) (a law enforcement officer s recommendation in a PSI report violated the plea agreement because the officer was an agent of the State).
We conclude that under the facts here, the CCO’s recommendation constituted a violation of the plea agreement. For whatever reason or reasons, the State and Chetwood each found it to their advantage to enter into this agreement. Presumably, each felt they had something to gain by doing so and each felt they had something to lose if they did not. Chetwood had the expectation that the State would recommend probation. The prosecutor did state the terms of the agreement to the district court. However, the force of those statements was diluted by the subsequent comments of the CCO, particularly when the prosecutor introduced the CCO saying she had a recommendation on the issue of probation. We hold that one of Chetwood’s expectations from the plea agreement was not met in this situation.
We, therefore, conclude that the order of probation revocation should be reversed, and the sentence imposed on March 9, 2006, should be vacated, and the cases be remanded to the district court for rehearing before another judge.
For his second issue on appeal, Chetwood contends that his criminal history must be included in the complaint and proven to a jury beyond a reasonable doubt before it can be used to enhance his sentence. He acknowledges that this issue has been determined contrary to his position in State v. Ivory, 273 Kan. 44, 41 P.3d 781 (2002). He includes the argument in order to exhaust all state court remedies and preserve tire issue for federal review.
In view of our vacating the sentences, tire issue becomes moot. We merely, reiterate that this court is “duty bound to follow Kansas Supreme Court precedent unless there is some indication that the court is departing from its previous position.” State v. Beck, 32 Kan. App. 2d 784, 788, 88 P.3d 1233, rev. denied 278 Kan. 847 (2004). We have made clear that there is no indication of a departure from the Ivory holding. See, e.g., State v. Burton, 35 Kan. App. 2d 876, 882, 136 P.3d 945, rev. denied 282 Kan. 792 (2006); Beck, 32 Kan. App. 2d at 788.
Reversed and remanded with directions for a determination on probation revocation in 01CR1637 and for resentencing in 05CR2727, all before another judge. | [
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LARSON, J.:
This is the State’s appeal from the district court’s suppression of evidence seized during the search of a vehicle incident to a lawful arrest on July 6, 2006.
The first impression issue in Kansas in this appeal involves the interpretation of the 2006 amendment in K.S.A. 2006 Supp. 22-2501(c) to allow law enforcement officers making a lawful arrest to reasonably search the person arrested and the area within such person’s immediate presence for the purpose of discovering the fruits, instrumentalities, or evidence of a crime rather than the crime.
The facts in this case are not controverted and show the following scenario and proceedings in the cases before us on appeal.
On the morning of July 6, 2006, Deputy Patrick Stevenson was entering a convenience store in Emporia when he noticed Randy Henning walking out of the store. Stevenson knew Henning from a previous incident and remembered Henning’s name had been on an outstanding arrest warrant list. Stevenson immediately called dispatch and verified there was an outstanding arrest warrant for Henning for a traffic violation.
Stevenson testified that by the time he verified Henning’s outstanding arrest warrant, Henning had entered the front passenger side of a car. Kelly Zabriskie was in the driver’s seat of the car. The car was registered to Henning.
Stevenson called to Henning and asked to speak to him. Henning got out of the car, and Stevenson asked Henning for his date of birth. Stevenson relayed this information to dispatch and verified Henning was the person named in the arrest warrant. Stevenson told Henning he was under arrest and handcuffed him.
Stevenson proceeded to search Henning’s car. Stevenson testified that he searched Henning’s car as a search incident to arrest under K.S.A. 2006 Supp. 22-2501. Stevenson noted that he knew 22-2501 had been amended effective July 1, 2006, to allow him to search for fruits of a crime in a car where an arrestee had been. During his testimony at preliminary hearing, Stevenson indicated that he was not searching for evidence of a particular crime during his search of Henning’s car; rather, he was searching for evidence of any crime. During the search of Henning’s car, Stevenson dis covered a fabric flashlight holder inside the center console. Inside the fabric holder was a syringe and a glass pipe with residue. Later testing detected amphetamine inside the pipe. Although Henning denied that the items were his, Henning told Stevenson that he would say the items belonged to him to get Zabriskie out of trouble. After Stevenson discovered the items inside the car, he placed Zabriskie under arrest for possession of drug paraphernalia.
Henning and Zabriskie were separately charged with possession of amphetamine in violation of K.S.A. 2006 Supp. 65-4160 and possession of drug paraphernalia in violation of K.S.A. 2006 Supp. 65-4152. Both Henning and Zabriskie moved to suppress the evidence seized by Stevenson.
Henning argued that in order to search a car incident to arrest under K.S.A. 2006 Supp. 22-2501(c), an officer must have reasonable grounds to believe that a crime has been committed and that evidence of the crime is in the vehicle. The State conceded that Stevenson did not see any crime being committed other than the fact Henning had an outstanding warrant for his arrest. The State argued the 2006 amendment in K.S.A. 2006 Supp. 22-2501(c) authorized and allowed the type of search Stevenson had performed in this case.
The trial court granted Henning’s and Zabriskie’s motions to suppress. The trial court held that Stevenson’s search went beyond the scope of K.S.A. 2006 Supp. 22-2501. The trial court determined that under the 2006 amendment to 22-2501(c), the legislature intended to broaden the scope of a search to encompass a search for a crime other than that which brought the person into custody but did not intend to encompass a search for any crime. The trial court commented that a reading of K.S.A. 2006 Supp. 22-2501(c) to allow a search when the officer is merely looking for the instrumentalities or fruits of any crime would not meet constitutional standards under the Fourth Amendment to the United States Constitution.
The State appealed the district court’s decision in both Henning’s and Zabriskie’s cases. The appeals were consolidated by our court.
We first consider the State’s contention that the search of the vehicle occupied by Henning and Zabriskie was a valid search incident to arrest as specifically allowed by K.S.A. 2006 Supp. 22-2501 and that the evidence seized during the search should not have been suppressed.
The standards of review in appeals of suppression motions are well known and are applicable here.
“In reviewing a district court’s decision regarding suppression, [an appellate] court reviews the factual underpinnings of the decision by a substantial competent evidence standard and the ultimate legal conclusion by a de novo standard with independent judgment. This court does not reweigh evidence, pass on the credibility of witnesses, or resolve conflicts in the evidence. [Citation omitted.]” State v. Ackward, 281 Kan. 2, 8, 128 P.3d 382 (2006).
But, when the material facts to 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. State v. Porting, 281 Kan. 320, 324, 130 P.3d 1173 (2006). The State bears the burden of proof for a suppression motion. It must prove to the trial court the lawfulness of die search and seizure. State v. Ibarra, 282 Kan. 530, 533, 147 P.3d 842 (2006).
In this case, we have additional questions of statutory interpretation and the ever-present Fourth Amendment issues. In State v. Mendez, 275 Kan. 412, 420-21, 66 P.3d 811 (2003), the language of both the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights was set forth and it was noted the protections thereunder to be free of unlawful searches and seizures are identical under both provisions. See State v. Schultz, 252 Kan. 819, 824, 850 P.2d 818 (1993). Mendez further stated:
“It is a well-recognized rule that unreasonable searches and seizures are constitutionally prohibited and ‘[u]nless a search falls within one of a few exceptions, a warrantless search is per se unreasonable.’ State v. Canaan, 265 Kan. 835, Syl. ¶ 1, 964 P.2d 681 (1998). We further said in Canaan that ‘[t]he exclusionary rule prohibits the admissions of the “fruits” of illegally seized evidence, i.e., any information, object, or testimony uncovered or obtained, directly or indirectly, as a result of the illegally seized evidence or any leads obtained therefrom.’ 265 Kan. 835, Syl. ¶ 3.” 275 Kan. at 420-21.
One of the recognized exceptions to the search warrant requirement is the contemporaneous search incident to arrest doctrine, which in Kansas is statutorily based. See Mendez, 275 Kan. at 421; State v. Anderson, 259 Kan. 16, 19, 910 P.2d 180 (1996). In our case the State’s only argument is that the search of the vehicle was a search incident to a lawful arrest.
As we are taught by State v. Conn, 278 Kan. 387, 391, 99 P.3d 1108 (2004): “In Kansas, the permissible circumstances, purposes, and scope of a search incident to arrest are controlled by statute. [Citation omitted.]” The statute in issue in our case is K.S.A. 2006 Supp. 22-2501(c), as amended by the 2006 Kansas Legislature effective as of July 1, 2006. The applicable change is in subsection (c) which replaces the with a making our Kansas search incident to lawful arrest statute read as follows:
“Sec. 8. K.S.A. 22-2501, as repealed by 2006 Senate Bill No. 366, is hereby revived and amended to read as follows: 22-2501. When a lawful arrest is effected a law enforcement officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of
(a) Protecting the officer from attack;
(b) Preventing the person from escaping; or
(c) Discovering the fruits, instrumentalities, or evidence of the a crime.” L. 2006, ch. 211, sec. 8.
This change frames the issue in our case: Was it permissible for Stevenson to search the vehicle Henning had been occupying once Henning had been lawfully arrested based on the outstanding traffic warrant? For the reasons herein stated, we answer this question “yes.”
“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 trial court’s interpretation. [Citation omitted.]” State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006). Bryan further teaches us:
“The fundamental rule of statutory construction is to ascertain the legislature’s intent. 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. When a statute is plain and unambiguous, the court must give effect to the legislature’s intent as expressed rather than determining what the law should or should not be. [Citation omitted.]” 281 Kan. at 159.
Moreover, as a general rule, criminal statutes must be strictly construed in favor of the accused. Any reasonable doubt as to the meaning of the statute is decided in favor of the accused. Nevertheless, the rule of strict construction is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Snow, 282 Kan. 323, 340-41, 144 P.3d 729 (2006).
Although this entire case is premised on the change of a single word in K.S.A. 2006 Supp. 22-2501(c), it is helpful to look to several of the many cases that involved K.S.A. 22-2501(c) prior to the 2006 amendment.
In Conn, Justice Luckert made it clear that “[a] search which is purely a search incident to arrest may only be conducted for the purposes listed in K.S.A. 22-2501: officer protection; escape prevention; and discovery of the fruits, instrumentalities, or evidence of the crime.” 278 Kan. 387, Syl. ¶ 1. It was noted in Conn that in Anderson, 259 Kan. at 22, our Supreme Court had previously “rejected the view that case law applying the Fourth Amendment, in particular New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981), meant that a search of an automobile could automatically be conducted when an occupant was arrested.” 278 Kan. at 391. In Anderson, our Supreme Court, speaking through Chief Justice McFarland, stated that Kansas has “a statute that sets forth the permissible circumstances and purposes under which a search incident to arrest can be made. [K.S.A. 22-2501] may possibly be more restrictive than prevailing case law on the Fourth Amendment would permit, but this does not alter the plain language of the statute.” 259 Kan. at 22.
In Anderson, an officer searched a car for drugs after arresting the driver for driving on a suspended license and on an outstanding traffic warrant. Our Supreme Court held that the search was an improper search incident to arrest because it was not conducted for any of the purposes under K.S.A. 22-2501. 259 Kan. at 24. It was pointed out that the arresting officer was not concerned for his safety, nor did he claim that he was looking for the fruits, instrumentalities, or evidence of the crimes for which the driver was arrested. 259 Kan. at 19.
Similarly in Conn, 278 Kan. 387, it was held that a search of a car after the defendant had been arrested for driving without a proper driver’s license and failing to provide proof of insurance could not be upheld under K.S.A. 22-2501. The officer testified he was looking for the defendant’s identification, but both the Court of Appeals and the Supreme Court found that K.S.A. 22-2501(c) does not permit a warrantless search of a car for tire purpose of discovering a valid license after the officer had just arrested the driver for not having one. 278 Kan. at 392-94.
It is thus clear that prior to July 1, 2006, an officer must have been searching for evidence of the crime for which the person had been arrested in order for the search under subsection (c) to be upheld as a valid search incident to arrest.
The language of K.S.A. 22-2501 and the Anderson decision has been believed by law enforcement officials to place them at a disadvantage to most of the rest of the United States in searches after a valid arrest had been made. The desire to be able to operate as allowed by the United States Supreme Court in New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860, reh. denied 453 U.S. 950 (1981), and Chimel v. California, 395 U.S. 752, 23 L. Ed. 2d 685, 895 S. Ct. 2034, reh. denied 396 U.S. 869 (1969), to search an arrestee and the immediately surrounding area once a lawful custodial arrest has been made led law enforcement officials to request changes by the Kansas Legislature. This action led to the 2006 Kansas Legislature changing subsection (c) of K.S.A. 22-2501 to now read that an officer may search an arrested person and his or her immediate presence for the purpose of “[discovering the fruits, instrumentalities or evidence of a crime.” (Emphasis added.) L. 2006, ch. 211, sec. 8. The State maintains that the change in K.S.A. 2006 Supp. 22-2501(c) from “the” to “a” authorizes law enforcement to search the arrestee and the area within his or her immediate presence for fruits, instrumentalities, or evidence of an unspecified or unidentified crime.
It is important that we consider and follow the long-time rule in Kansas that we find in State v. McElroy, 281 Kan. 256, 263, 130 P.3d 100 (2006): “ “When the legislature revises an existing law, it is presumed that the legislature intended to change the law from how it existed prior to the amendment, and it is presumed that the legislature does not intend to enact useless or meaningless legislation.’ State v. Van Hoet, 277 Kan. 815, 826, 89 P.3d 606 (2004).”
There is no question but that by changing the word “the” to “a” in K.S.A. 2006 Supp. 22-2501(c), the legislature has broadened and expanded an officer’s statutory authority to search incident to arrest. “[A]” is an indefinite article that does not point to any particular object; “a” is “[ujsed before nouns and noun phrases that denote a single, but unspecified person or thing.” Webster’s II New College Dictionary 1 (2001). As the State points out, an application of the plain meaning of the word “a” along with the other words in K.S.A. 2006 Supp. 22-2501(c) results in a law enforcement officer being authorized to search the person arrested and the area within such person’s immediate presence (in our case, the vehicle) for the purpose of discovering the fruits, instrumentalities, or evidence of any unspecified crime.
However, Henning and Zabriskie argue that this is a criminál statute that must be strictly construed in favor of the accused, see State v. Stout, 37 Kan. App. 2d 510, 515, 154 P.3d 1176 (2007), and in doing so, the officer must have an identifiable crime and probable cause to believe that it occurred even though it may not be the crime for which the person was arrested.
To accept Henning’s argument, however, this court would have to read out the phrase “a crime” and substitute it with “an identified crime for which the officer has probable cause to believe occurred.” Such an interpretation would violate the rule of statutory construction that “ ‘[ojrdinaiy words are to be given their ordinary meanings without adding something that is not readily found in the statute or ehminating that which is readily found therein.’ [Citation omitted.]” McElroy, 281 Kan. at 262. Moreover, such an interpretation does not comport with the plain language of K.S.A. 2006 Supp. 22-2501(c).
It will be helpful to look to the legislative history for it appears that by changing “the crime” to “a crime” in K.S.A. 2006 Supp. 22-2501(c), the legislature intended to authorize a search incident to a lawful arrest for the purpose of discovering the fruits, instrumentalities, or evidence of an unidentified or unknown crime, without requiring the officer to have probable cause to believe that the arrested person committed a crime for which admissible evidence will be found.
In looking at the legislative history, we are bound by the statement in Estate of Soupene v. Lignitz, 265 Kan. 217, 220, 960 P.2d 205 (1998):
“Although appellate courts will not speculate as to the legislative intent of a plain and unambiguous statute, [citation omitted] where the construction of a statute on its face is uncertain, the court may examine the historical background of the enactment, the circumstances attending its passage, the purpose to be accomplished, and the effect the statute may have under various suggested interpretations. [Citation omitted.]”
Research of legislative history reveals that proposed legislation was first introduced in 2004 to amend K.S.A. 22-2501. House Bill 2541, which proposed changing “the” to “a” in K.S.A. 22-2501(c), was introduced in 2004 by the House Corrections and Juvenile Justice Committee. House J. 1994, p. 967. Kyle Smith, director of public and governmental affairs with the Kansas Bureau of Investigation, testified in favor of the bill. Smith discussed the bright-line rule from Belton that when an officer has made a lawful arrest of the occupant of an automobile, he may, as a contemporaneous incident of the arrest, search the passenger compartment of the automobile and any containers found within the passenger compartment. Nevertheless, Smith pointed out that our Supreme Court in Anderson, 259 Kan. 16, had interpreted K.S.A. 22-2501(c) to authorize officers to search for fruits, instrumentalities, or evidence of “the” crime, not “any” crime. Smith said:
“HB 2542 would change the word to the broader ‘a’ from the narrower ‘the’. This is not any reduction in anyone’s constitutional rights. It is merely bringing our statute into accord with law elsewhere in the United States as well as with the law in Kansas prior to this statute being construed in 1996.1 would note that there was no problem with abuses prior to 1996, when the Belton rule was the law. The only thing this State v. Anderson case has done is it has allowed certain criminals who are already under arrest to escape punishment for other crimes they have committed, as well as confuse the training of law enforcement officers throughout the state.” Minutes, House Corrections and Juvenile Justice Comm., February 2, 2004.
At the same hearing, Randall Hodgkinson, deputy appellate defender, testified against the proposed amendment to K.S.A. 22-2501(c), citing several practical and legal problems with the proposed legislation. Hodgkinson indicated that the amendment might not survive constitutional scrutiny based on how our Supreme Court had interpreted Belton. Minutes, House Corrections and Juvenile Justice Comm., February 2, 2004. There was no final action taken on the proposal in 2004.
The identical proposed amendment was again introduced in 2005 in House Bill 2261. House J. 2005, p. 104. Michael Jennings, legislative chair of the Kansas County and District Attorneys Association, expressed support in a letter stating the amendment would allow the State to use in evidence anything possessed by an arrested person that had been found on their person or in the passenger compartment of their car when the arrest was made. Minutes, House Corrections and Juvenile Justice Comm., February 14, 2005.
Kyle Smith again testified, but this time he urged the committee to repeal K.S.A. 22-2501 and let officers be guided by the constitutional restraints set down by the United States Supreme Court. Minutes, House Corrections and Juvenile Justice Comm., February 14, 2005. At the same hearing, Jared Maag, Kansas deputy attorney general, also testified in favor of repealing K.S.A. 22-2501. Maag pointed out that only five other states statutorily prescribe the limits of a law enforcement officer’s right to search incident to an arrest, and he said that codifying this area of search and seizure law breeds conflict with the Kansas Anderson case. Minutes, House Corrections and Juvenile Justice Comm., February 14, 2005.
The legislative proceedings for the remainder of the 2005 session shows a bill to repeal K.S.A. 22-2501 passing the House and being referred to the Senate Judiciary, which held a hearing where Smith and Maag again testified. Minutes, Senate Judiciary Comm., March 17, 2005. The Senate Judiciary Committee recommended the passage of Senate Bill 2261 which would have repealed K.S.A. 22-2501, but the committee of the whole recommended Substitute House Bill 2261 that added back in the K.S.A. 22-2501 language but changed “the” to “a” in subsection (c). This bill passed the Senate, but although it was considered by a conference committee, it did not pass in 2005. Senate J. 2005, p. 837.
The testimony concerning K.S.A. 2006 Supp. 22-2501 has been shown, and in procedural actions near the end of the 2006 legislative session, Senate Bill 366 repealing K.S.A. 22-2501 was passed by both houses. House J. 2006, p. 2184; Senate J. 2006, p. 1799; see L. 2006, ch. 194, sec. 36. But, before this legislation became effective, the legislature added language to House Substitute for Senate Bill 431 reviving and amending K.S.A. 22-2501 by changing the language of subsection (c) from “the” to “a.” The amended bill was passed by both houses and signed into law by Governor Sebelius. See L. 2006, ch. 211, secs. 8,15, and 16; K.S.A. 2006 Supp. 22-2501.
It is clear from this review of the legislative process that the legislature intended to broaden the actions a law enforcement officer may take once a lawful arrest is effected. The legislative action was taken in response to the Anderson decision which had followed the prior statutory language of K.S.A. 22-2501, but resulted in narrowing the allowed search incident to arrest authority of law enforcement officers over what is allowed by decisions of the United States Supreme Court. Based on the legislative history, and the legislature’s desire to continue and expand K.S.A. 2006 Supp. 22-2501, the ultimate change shows the intent to give law enforcement officers the same rights as exist under the United States Supreme Court Belton decision.
With the apparent legislative intent to rely on the Belton decision, a brief discussion of the jurisprudence of the United States Supreme Court with reference to decisions relating to searches incident to an arrest is indicated. This began in 1969 with the decision of Chimel v. California, 395 U.S. 752, where the Court held the scope of a search to be unreasonable because it went beyond the arrestee’s person and the area from which he might have ob tained a weapon or something that could have been used as evidence against him. But, the Chimel Court announced the following rules:
“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from which he might gain possession of a weapon or destructible evidence.” 395 U.S. at 762-63.
Chimel was followed in 1981 by New York v. Belton, 453 U.S. 454, where a bright-line rule for police searches of the interior of a vehicle when the vehicle’s occupants have been arrested was established. In Belton, the officer stopped a car for speeding. During the stop, the officer discovered that none of the four occupants owned the car, nor were they related to the car’s owner. Moreover, the officer had smelled burnt marijuana and had seen an envelope that he associated with marijuana on the floor of the car. The officer directed the occupants to get out of the car and placed them under arrest. They were separated and searched. While searching the passenger compartment of the car, the officer discovered a black leather jacket that belonged to the defendant on the back seat. The officer unzipped one of the pockets and discovered cocaine. The defendant argued that the cocaine should be suppressed.
The Belton Court held that “when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile.” 453 U.S. at 460. The Court further held: “It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach. [Citations omitted.]” 453 U.S. at 460. The Court provided a footnote that its decision did not change Chimel’s principles: “Our holding today does no more than determine the meaning of Chimel’s principles in this particular and problematic context. It in no way alters the fundamental principles established in the Chimel case regarding the basic scope of searches incident to lawful custodial arrests.” Belton, 453 U.S. at 460 n.3.
We will later discuss a recent search incident to arrest case, Thornton v. United States, 541 U.S. 615, 158 L. Ed. 2d 905, 124 S. Ct. 2127 (2004), where the Belton rule was applied to an arrested person who was a “recent occupant” of a vehicle. Several of the opinions in Thornton have been cited by Henning in questioning the constitutionality of K.S.A. 2006 Supp. 22-2501 if it is interpreted as we have done in this case. But Belton remains the governing decision and its application to the facts of our case through the 2006 wording of K.S.A. 2006 Supp. 22-2501(c) clearly justified Stevenson to make the search of the vehicle that he accomplished after the lawful arrest of Henning and requires that we hold the trial court erroneously granted the motions to suppress in these two cases.
In reaching this conclusion, we also look to decisions in Illinois and Florida where the Belton holding has been followed in states that have statutory provisions nearly identical to K.S.A. 2006 Supp. 22-2501(c). The Illinois statute governing searches incident to arrest permits the discovery of any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of an offense. Ill. Comp. Stat. ch. 725 5/108-1(d) (2006). Similarly, the Florida statute permits a search of the person arrested and the area within the person’s immediate presence for the purpose of discovering the fruits of a crime. Fla. Stat. 901.21(l)(c) (2001).
Both Florida in State v. Gilbert, 894 So. 2d 1055, 1056-57 (Fla. Dist. App. 2005), and Illinois in People v. Bailey, 159 Ill. 2d 498, 504-07, 639 N.E.2d 1278 (1994), applied the bright-line rule of Belton to uphold a search of a vehicle incident to an arrest. The facts in both cases involved lawful stops for traffic violations and subsequent searches of the vehicle occupied by the arrestee.
The First District Court of Appeals in Florida stated:
“When an occupant of a vehicle is arrested, the police may search the vehicle. See New York v. Belton, 453 U.S. 454, 69 L. Ed. 2d 768, 101 S. Ct. 2860 (1981). The authority for a vehicle search incident to an arrest does not depend on a reasonable suspicion of criminal activity or probable cause. It is instead a bright-line- rule arising from the very fact of the arrest itself, regardless of whether the officers had a reasonable suspicion of criminal activity. [Citations omitted.] This rule is based on the need to remove any weapons and to preserve any evidence that might be in the vehicle. See Belton, 453 U.S. at 461-62; Chimel v. California, 395 U.S. 752, 763, 89 S. Ct. 2034, 23 L. Ed. 2d 685 (1969).” Gilbert, 894 So. 2d at 1056-57.
Similarly, the Illinois Supreme Court said:
“Although a search incident to arrest is based on the need to disarm and discover evidence, the authority to search does not depend on the probability in a particular case that weapons would in fact be found or evidence would in fact be destroyed. * “A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.” ’ [Citations omitted.]” Bailey, 159 Ill. 2d at 504.
The decisions in both Florida and Illinois support the decision and result which we now reach in Kansas.
It is apparent that we followed the Belton rule here in Kansas before K.S.A. 22-2501 was adopted. See State v. White, 230 Kan. 679, Syl., 640 P.2d 1231 (1982); and State v. Press, 9 Kan. App. 2d 589, Syl. ¶ 3, 685 P.2d 887, rev. denied 236 Kan. 877 (1984). It is logical that we should now continue to do so because of the amendment in K.S.A. 2006 Supp. 22-2501(c) which was clearly adopted by the Kansas Legislature to return our jurisprudence to the earlier rule that where a lawful arrest has been made, the Belton bright-line rule applies.
K.S.A. 2006 Supp. 22-2501(c) allows an officer who has made a lawful arrest to search the arrestee and the arrestee’s immediate presence for the purpose of “[discovering the fruits, instrumentalities, or evidence of a crime.” Based on the plain language of K.S.A. 2006 Supp. 22-2501(c), the officer’s authority to search does not depend on the likelihood or probability that evidence of the crime of arrest will be found.
Under Belton, a search of the passenger compartment of an automobile incident to arrest is permissible when the arrestee is an occupant or recent occupant of the automobile. See State v. Van Wey, 18 Kan. App. 2d 260, Syl. ¶ 1, 850 P.2d 283 (1993). Moreover, in Thornton, 541 U.S. at 617, the United States Supreme Court held that “Belton governs even when a officer does not make contact until the person arrested has left the vehicle.” As long as the arrestee is a “ ‘recent occupant’ ” of the vehicle, “officers may search that vehicle incident to arrest.” 541 U.S. at 623-24. Here, Stevenson’s testimony establishes that Henning was in his car immediately before his arrest. Stevenson asked Henning to get out of his car, checked Henning’s identity, and placed him under arrest. Because Henning had been a recent occupant of the car when he was arrested, Stevenson was justified in searching the passenger compartment of the car as a search incident to arrest.
The trial court’s ruling on the motions to suppress of both Henning and Zabrislde must be reversed.
Although it is questionable whether the constitutionality of K.S.A. 2006 Supp. 22-2501 is properly before us, the motions to suppress below alleged that if the search was deemed to be proper, it would be based on an unconstitutional statute, and the district court so suggested in its ruling although it did not so find in sustaining the suppression motions. The appellees have argued on appeal that if K.S.A. 2006 Supp. 22-2501 authorizes and allows the search that took place in this case, then the statute is unconstitutional. We, therefore, reach and consider the constitutionality of K.S.A. 2006 Supp. 22-2501.
Our duty when the constitutionality of a statute is in issue is well known, as stated in State v. Brown, 280 Kan. 898, 899, 127 P.3d 257 (2006):
“ ‘The constitutionality of a statute is presumed. All doubts must be resolved in favor of its validity, and before the act may be stricken down it must clearly appear that the statute violates the constitution. In determining constitutionality, it is the court’s duty to uphold a statute under attack rather than defeat it. If there is any reasonable way to construe the statute as constitutionally valid, that should be done. A statute should not be stricken down unless the infringement of the superior law is clear beyond reasonable doubt. [Citation omitted.]’ State v. Whitesell, 270 Kan. 259, 268, 13 P.3d 887 (2000).”
It is further clear that the interpretation of a statute is a question of law over which an appellate court has unlimited review. State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 (2006).
To support the argument that K.S.A. 2006 Supp. 22-2501 is unconstitutional if construed as we have done in this case, Henning points to concurring opinions in Thornton, 541 U.S. at 615. Thornton held that the rule in Belton governs even when an officer does not make contact until the person arrested has left the vehicle. 541 U.S. at 617. The United States Supreme Court stated that as long as an arrestee is the “ ‘recent occupant’ of a vehicle” as the petitioner was in that case, “officers may search that vehicle incident to the arrest.” 541 U.S. at 623-24.
In a concurring opinion, Justice Scalia, with whom Justice Ginsburg joined, stated that he would “limit Belton searches to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.” 541 U.S. at 632. However, under this rule, the search that took place in Thornton would be justified. Noting that the petitioner was lawfully arrested for a drug offense, Justice Scalia stated that it was reasonable for the officer “to believe that further contraband or similar evidence relevant to the crime for which he had been arrested might be found in the vehicle from which he had just alighted and which was still within his vicinity at the time of arrest.” 541 U.S. at 632 (Scalia, J., concurring in the judgment).
Chief Justice Rehnquist, writing for the plurality, declined to address the issue discussed by Scalia in his concurring opinion, stating:
“Whatever the merits of Justice Scalia’s opinion concurring in the judgment, this is the wrong case in which to address them. Petitioner has never argued that Belton should be limited ‘to cases where it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle, [citation omitted], nor did any court below consider Justice Scalia’s reasoning. [Citations omitted.] The question presented — ‘[w]hether the bright-line rule announced in New York v. Belton is confined to situations in which the police initiate contact with the occupant of a vehicle while that person is in the vehicle,’ Pet. for Cert. — does not fairly encompass Justice Scalia’s analysis. [Citation omitted.] And the United States has never had an opportunity to respond to such an approach. [Citation omitted.] Under these circumstances, it would be imprudent to overrule, for all intents and purposes, our established constitutional precedent, which governs police authority in a common occurrence such as automobile searches pursuant to arrest, and we decline to do so at this time.” 541 U.S. at 624 n.4.
Justice O’Connor wrote a separate concurring opinion stating that she joined in all but footnote 4 of the plurality opinion. Expressing dissatisfaction with the state of the law in this area, Justice O’Connor stated:
“As Justice Scalia forcefully argues, [citation omitted] lower court decisions seem now to treat the ability to search a vehicle incident to the arrest of a recent occupant as a police entitlement rather than as an exception justified by the twin rationales of Chimel v. California, 395 U.S. 752[, 23 L. Ed. 2d 685, 89 S. Ct. 2034] (1969). That erosion is a direct consequence of Belton’s shaky foundation. While the approach Justice Scalia proposes appears to be built on firmer ground, I am reluctant to adopt it in the context of a case in which neither the Government nor the petitioner has had a chance to speak to its merit.” 541 U.S. at 624-25 (O’Connor, J., concurring in part).
Henning unconvincingly argues that three justices in Thornton expressing concern about the scope of Belton allowing police to search a car when a passenger has been arrested makes it likely that the search in this case would be held to be based on an unconstitutional statute. We do not agree.
It is clear that Thornton did not overrule Belton, and it is axiomatic that only the United States Supreme Court may overrule its precedent. Thus, Belton remains the law, and we would violate United States Supreme Court precedent if we attempted to do so. The Belton decision was decided in 1981, and it is firmly rooted in the search incident to arrest jurisprudence.
We followed Belton in Kansas beginning with State v. Croft, 6 Kan. App. 2d 821, Syl. ¶ 1, 635 P.2d 972 (1981), which was expressly approved by our Kansas Supreme Court in White, 230 Kan. at 680. Belton was not limited by Chief Justice McFarland’s opinion in State v. Anderson, 259 Kan. 16, 23, 910 P.2d 180 (1996), which clearly held that while “Belton may expand the scope of the constitutionally permissible search of a vehicle,” it does not expand the permissible purpose of the search. The 2006 amendment in K.S.A. 2006 Supp. 22-2501 has now expanded the purpose of such a search so as to comply with Belton s Fourth Amendment permissible rule.
There is no logical reason for us to not follow Belton. We hold that when the Kansas Legislature amended 22-2501(c), it adopted a constitutional statute which expanded the scope of the permissible purpose of a search incident to a lawful arrest in Kansas consistent with Belton.
We should not speculate on the result of an attack on Belton at some future date in the United States Supreme Court. Until the Belton rule is changed, it is binding precedent which we are obligated to follow. When we follow Belton, we find that the 2006 amendment to the wording of K.S.A. 2006 Supp. 22-2501(c) changing “the” to “a” is constitutional as written and as applied to the facts of this case.
The trial court’s rulings on the motions to suppress in both the Henning and the Zabrislde cases are reversed. Both cases are remanded to the district court for further proceedings consistent with this opinion.
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Leben, J.:
Mieko Takusagawa appeals the trial court’s decision approving and enforcing an oral separation agreement in this divorce case. She raises several claims. First, she claims that she was coerced into making the agreement, a claim the trial court rejected after an evidentiary hearing. Second, she challenges the trial court’s failure to inquire directly of the parties about whether the agreement was fair. Third, she argues that the trial court’s independent finding that the agreement was fair is in error. Last, she argues that the separation agreement should be held ineffective in transferring interests in real estate on the basis that the parties’ oral setdement agreement did not comply with the statute of frauds.
Mieko and Fusao Takusagawa were married in 1977. Fusao filed for divorce in May 2002. A divorce decree was granted on June 23, 2003. Financial issues remained unresolved, however, and a trial on those matters was set for October 15, 2003.
Two days before trial, no settlement had been reached. The events leading up to an apparent setdement were recounted in the trial court’s findings:
“Two days before the scheduled hearing, [Mieko] received an email from her adult son, Ken, who forwarded to her a message that he and his sister had received from [Fusao] requesting that the children assist their mother prior to the final hearing with advice about what [Fusao] believed was an illegal action, a purported tax violation which occurred when [Mieko] failed to disclose to United States customs approximately $100,000 U.S.D. in Japanese yen which she brought into the United States from Japan. [Fusao] asked the children to advise [Mieko] about the situation so she could decide whether she wanted to settle the property issues out of court. In the email [Fusao] told the children that his attorney would raise this issue at trial. [Fusao] neither sent the email to [Mieko] nor did he ask their children to do so.
“On the day of the final hearing, the parties reached an agreement and the specifics of the agreement were put on the record. Both parties stated under oath that this was their understanding of the agreement. The hearing concluded with the attorneys agreeing to finalize the setdement paperwork according to the agreed-upon terms.
“[Mieko] later refused to sign the agreement and subsequently filed a motion to set aside the settlement agreement, alleging that [Fusao’s] email constituted a threat, that her agreement to the setdement was made under duress or coercion, and that the terms were unfair, unjust, and inequitable and, as such, were void.”
The trial judge, the Honorable Jean Shepherd, found no coercion. Judge Shepherd made several specific findings about the weight of the evidence on key issues. She specifically held that there was “no evidence” supporting any of these conclusions:
• that the email “was sent with the purpose of threatening or coercing” Mieko;
• that Fusao “intended to secure an undue advantage over [Mieko] or deprive her of her exercise of free will”; and
• that the email “caused [Mieko] to act to her detriment.”
Judge Shepherd held that Mieko had “failed to estabhsh with substantial evidence” that the “email was a threat that induced [her] to act to her detriment under strain of duress or coercion.” Judge Shepherd concluded that the terms of the settlement were “highly favorable” to Mieko and that the email “was little more than an attempt to prevent [Mieko’s] potential liability from coming to light at the hearing.” After finding no basis to set aside the separation agreement due to coercion, Judge Shepherd approved the agreement as fair and equitable to the parties.
The Claim of Coercion
Mieko claims that she felt she had to accept Fusao’s settlement offer so that she would not be subjected to potential criminal or immigration sanctions due to her failure to report bringing foreign currency into the country. We must review both the trial court’s fact findings and the applicable law to determine whether her claim provides a basis for setting aside the settlement agreement. ‘When, as here, . . . the district court has made findings of fact as a basis for its legal conclusions, our function merely is to determine whether the findings are supported by substantial competent evidence and whether those findings are sufficient to support the conclusions of law.” U.S.D. No. 233 v. Kansas Ass’n of American Educators, 275 Kan. 313, 318, 64 P.3d 372 (2003).
Kansas law has long recognized that a husband and wife may make enforceable agreements during a marriage, even with no divorce action pending. E.g., In re Estate of Loughmiller, 229 Kan. 584, 592, 629 P.2d 156 (1981); Hoch v. Hoch, 187 Kan. 730, 731, 359 P.2d 839 (1961). Once a divorce action has been filed, K.S.A. 60-1610(b)(3) explicitly sanctions such agreements and provides that any “valid, just and equitable” separation agreement between the parties “shall be incorporated in the [divorce] decree.” These agreements are subject to the normal rules of contract law, Drummond v. Drummond, 209 Kan. 86, 91, 495 P.2d 994 (1972), and may be set aside when one of the parties entered into the agreement under duress or coercion. Libel v. Libel, 5 Kan. App. 2d 367, 368, 616 P.2d 306 (1980).
Judge Shepherd concluded factually that Mieko’s entry into the agreement was not due to duress or coercion. We have previously set out in some detail her specific findings. After review of the transcript of both hearings and the full record, it is clear that her findings are supported by substantial competent evidence.
Given Judge Shepherd’s fact findings, it is equally clear that the applicable legal standard cannot be met in this case; the standard for setting aside a separation agreement based on a claim of duress or coercion is not a low one. As Professor Linda Elrod and the late Judge James Buchele have aptly noted, “[s]ome degree of pressure exists in every negotiation.” 2 Elrod & Buchele, Kansas Law and Practice: Kansas Family Law § 11.32 (1999). Thus, this court determined in Libel that to constitute duress so as to justify setting aside an otherwise valid agreement, the threats must be purposely coercive, designed to secure undue advantage, deprive the other party of the exercise of free will, and cause the other party to act to his or her detriment. Libel, 5 Kan. App. 2d at 368, (citing Motor Equipment Co. v. McLaughlin , 156 Kan. 258, Syl. ¶ 1, 133 P.2d 149 [1943]). The factual record in this case does not support such a claim.
The Claim of Inadequate Inquiry of the Parties by the Judge
Mieko next argues that the agreement should be set aside because the trial judge did not ask each of the parties whether he or she considered the settlement a fair one. This issue raises questions of interpretation of the Kansas divorce statutes. Thus, this court’s review is unlimited. See Foster v. Kansas Department of Revenue, 281 Kan. 368, 374, 130 P.3d 560 (2006).
In support of her argument, Mieko relies upon a West Virginia case, Gangopadhyay v. Gangopadhyay, 184 W. Va. 695, 403 S.E.2d 712 (1991). In that case, the West Virginia Supreme Court of Appeals held that a trial judge must make “inquiries ... to ascertain that the parties understand [the] terms and have voluntarily agreed to them without any coercion” before an oral settlement agreement may be approved. 184 W. Va. at 699.
We do not find the Gangopadhyay case persuasive in Kansas because there is a key difference between the West Virginia statutes discussed in that case and the statutes of Kansas. West Virginia’s statute literally required that all divorce separation agreements be in writing. 184 W. Va. at 696. After noting this statutory requirement and several “cogent policy reasons which cause us to encourage the use of written separation agreements,” 184 W. Va. at 698, the court concluded that “[f]or these reasons . . . certain safeguards should attend the acceptance of an oral separation agreement.” 184 W. Va. at 699.
Unlike West Virginia, Kansas has no statute requiring that separation agreements be made in writing. Although it is difficult to prove a negative — and the Kansas statute does not explicitly reference oral separation agreements — both of the leading practice treatises note that Kansas allows oral separation agreements. 2 Elrod & Buchele, Kansas Family Law § 11.31; Short, Settlement Agreements, in Practitioner s Guide to Kansas Family Law § 8.12 (Leben ed. Supp. 2002). This is a crucial distinction between the rationale of the Gangopadhyay court and the case now before us.
This court has previously recognized that there are some explicit procedural and substantive requirements in the Kansas divorce statute. Substantively, K.S.A. 60-1610(b)(3) allows approval of a separation agreement only if the “court finds [it] to be valid, just and equitable.” Procedurally, in In re Marriage of Kirk, 24 Kan. App. 2d 31, 941 P.2d 385, rev. denied 262 Kan. 961 (1997), we held that there must of necessity be some basis in the record for this conclusion. Thus, there must be “evidence in the record sufficient to support the finding that the separation agreement is valid, just, and equitable.” 24 Kan. App. 2d 31, Syl. ¶ 1. If we demanded that trial judges go through a new set of magic questions before accepting a separation agreement, then we would be adding a requirement to the Kansas divorce statutes that simply cannot be found in the text. So long as there is a sufficient evidentiary basis in the record from which the trial court can determine that a valid contractual agreement was reached and that this agreement is fair, no more is required.
The Claim of Error in Finding the Agreement to Be Fair
Mieko next argues that the district court erred when it concluded that the separation agreement was just and equitable, a statutory requirement under K.S.A. 60-1610(b)(3). She contends that “[a] strong argument can be made that maintenance is appropriate” here given the length of the marriage and disparity in income between the parties. She also contends that her inheritance should not have been considered marital property and factored into the court’s analysis of the fairness of the agreement.
When a separation agreement is submitted for court approval, the trial judge is given broad discretion to determine its fairness. Kirk, 24 Kan. App. 2d at 35-36. Thus, we review the fairness decision for abuse of discretion. If reasonable people could disagree about the appropriateness of the trial court’s decision, then no abuse of discretion has occurred. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006).
Mieko’s objection to consideration of the inherited property as part of the marital estate subject to division presents only an argument of abuse of discretion in determining fairness, not a legal objection. Kansas law clearly provides that all property of the parties, however and whenever acquired, comes under the jurisdiction of the divorce court and may be equitably divided between them. K.S.A. 2006 Supp. 23-201(b); In re Marriage of Rodriguez, 266 Kan. 347, 352-53, 969 P.2d 880 (1998). Thus, our review on this issue is solely for abuse of discretion.
In cases tried rather than settled, Kansas law does not require an equal division of marital property. Rather, it is simply the judge’s obligation to arrive at a “just and reasonable division.” Rodriguez, 266 Kan. at 353. In cases settled, we know that the parties to a case have greater understanding of the circumstances of their case than any judge ever could gain through trial. Thus, the parties certainly have the ability to craft a settlement that does not equally divide their property or otherwise apply mechanical rules in determining the proper outcome.
The trial court in this case had before it all of the material required by the Kirk decision. Each party had submitted a domestic relations affidavit containing income information and property valuations. Fusao had also complied with Douglas County Local Rule 11, which required the filing of a statement containing a proposed division of property accompanied by values of each item. Judge Shepherd and counsel explicitly tracked the oral settlement agreement against that Rule 11 listing at the October 2003 hearing in which the settlement was announced.
At the time of filing, Fusao was earning about $84,500 as a professor and Mieko was earning about $49,000 as a pharmacist. Mieko’s domestic relations affidavit indicated that her employment would end in December 2002 when her employer discontinued its pharmacy. There is no indication in the record as to what steps she had taken, if any, to obtain replacement employment. Although there were differing valuations provided for the property Mieko had inherited in Japan, Mieko ended up with greater assets than Fusao no matter what valuation was used. Using the most conservative valuation of the Japanese property, Mieko received assets worth at least $670,000; using the highest estimate, she may have received assets worth almost $1,500,000. Fusao received assets worth about $629,000. Neither party listed any debts.
Judge Shepherd ultimately concluded that the. settlement agreement was “highly favorable” to Mieko. Its financial provisions were certainly well within the range of reasonable results that parties represented by counsel may arrive at through negotiation. There was no abuse of discretion in concluding that the agreement was a fair one to both parties.
The Claim of Violation of the Statute of Frauds
Mieko’s final claim raises a question not addressed in any published Kansas appellate opinion: May a party use the statute of frauds to avoid enforcement of an oral divorce settlement agreement that was recited and acknowledged on the record in court if an agreement to transfer land title was a part of the deal?
To be sure, no purpose behind the statute of frauds would be served by allowing Mieko to avoid enforcement of this agreement. The statute of frauds is designed to prevent fraud, Ayalla v. Southridge Presbyterian Church, 37 Kan. App. 2d 312, 316, 152 P.3d 670 (2007), and there is certainly no fraud at work here. Mieko admits that she entered into the agreement.
Of course, that does not answer the question of whether the statute of frauds bars enforcement of the agreement. Two provisions within the statute of frauds have been cited here by the parties. K.S.A. 33-105 requires a written deed or note for a transfer of interests in land. K.S.A. 33-106 requires some written evidence of an agreement for the sale of lands or any interest in them. The agreement between Mieko and Fusao did not actually transfer land interests. Rather, as part of an overall exchange of assets, it set up a process under which certain of Mieko’s interests in land in Japan would be transferred to Fusao at a later date. Thus, K.S.A. 33-106 is the applicable statutory provision.
Under K.S.A. 33-106, no action may be brought on a contract for the sale or transfer of interests in land “unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him or her lawfully authorized in writing.” Here, the terms of the agreement were recited by the authorized agents of tire parties, their attorneys, into the court record. When the transcript was prepared, there was thus “some memorandum or note thereof’ in writing. The memorandum evidencing the agreement may be made after formation of the contract. Restatement (Second) of Contracts § 136 (1979).
But was the agreement signed by Mieko, the party against whom it would now be enforced? At first blush, the answer seems to be no. There was no transcript at the time the agreement was recited into the record so obviously she didn’t take pen in hand and sign it then. And when a formal separation agreement was prepared, Mieko refused to sign it.
Answering the signature question requires consideration of the purpose of the requirement and the long march of caselaw interpretation under the statute of frauds. Our statute of frauds traces its lineage to virtually identical language adopted by the English Parliament in 1677. As an English judge put it nearly a century ago, “It is now two centuries too late to ascertain the meaning [of the statute of frauds] by applying one’s own mind independently to the interpretation of its language. Our task is a much more humble one; it is to see how that section has been expounded in decisions and how the decisions apply to the present case.” Hanau v. Ehrlich, 2 K.B. 1056, 1069 (1911). The clear trend over the years has been toward a narrowing interpretation of the statute of frauds. See 4 Corbin on Contracts § 12.1 (rev. ed. 1997); Murray on Contracts § 68 (4th ed. 2001).
That trend toward a narrow construction was apparent in Kansas in 1921 when our Supreme Court decided Whitlow v. Board of Education, 108 Kan. 604,196 Pac. 772 (1921), a case of substantial importance to our question. In Whitlow, a school board voted at a meeting to sell a parcel of land. When Whitlow brought her check to complete the purchase, the school board refused to proceed with the sale. The board’s minutes showed that the motion to sell the lot to Whitlow had been made and passed and that it authorized the board president to sign a deed in exchange for Whitlow’s payment. The Supreme Court rejected the school board’s argument that the statute of frauds precluded enforcement of the agreement because no member of the board had signed the minutes:
“There can be no doubt that the defendant board had the power to make this contract [citation omitted], and that it did make it. The minutes of the board as recorded by the clerk are the authentic record which the law required to be kept. . . . Those minutes constituted a sufficient memorandum of the contract to bind the board under the statute of frauds [citation omitted]. The duly recorded minutes fairly answered every purpose of that statute. [Citations omitted.]” 108 Kan. at 608.
The purpose of the signature requirement is to “authenticate the writing as that of the signer.” Restatement (Second) of Contracts § 134. Thus, the Supreme Court in Whitlow found a signature unnecessary when there was a legally required public record that provided authentication of the formation and terms of the contract.
Our case is quite similar. The district court is a court of record, K.S.A. 20-301, and this court has held that the district court’s “record imports verity and cannot be collaterally impeached.” In re Marriage of Case, 18 Kan. App. 2d 457, Syl. ¶ 1, 856 P.2d 169 (1993). A properly certified transcript of a court hearing is superior to the minutes taken down by the school board’s clerk in Whitlow. Thus, we find that a signature is unnecessary when there is a court transcript providing the terms of the agreement and the oral assent of the party to be charged with the agreement that has been fairly stated on the record of that proceeding.
This is fully in keeping with the purpose of the signature requirement in authenticating the writing. As a leading contract treatise explains, the “signature requirement should be held to be sat isfied if the writing contains any sign or symbol identifying its maker so as to persuade the court that there is no serious risk of fraud in the . . . allegation that the memorandum was made or adopted by the party charged.” 4 Corbin on Contracts § 23.4, at 788. The transcript shows that the judge asked Mieko, “Ma’am, is that your understanding of the agreement?” She replied, “Yes.” That response was her sign or symbol authenticating the agreement that had just been recited to the court. As the court recognized in Whitlow, the authenticity of that sign or symbol is not lessened when it is accurately taken down by a public official whose duty it was to record the proceeding rather than being handwritten by the party.
Several additional considerations reinforce our conclusion that the statute of frauds is no bar to enforcement of this agreement. First, Kansas’ adoption in 2000 of the Uniform Electronic Transactions Act (UETA), K.S.A. 2006 Supp. 16-1601 et seq., probably makes Mieko’s in-court statement the legal equivalent of a written signature for purposes of the statute of frauds. The record does not disclose the type of equipment used by the court reporter, but it would be quite rare today for a court reporter’s equipment not to at least require electricity. The UETA deems records generated by electronic means, including the use of electrical or digital magnetic capabilities, to be electronic records. K.S.A. 2006 Supp. 16-1602(f), (h). The UETA also deems any electronic sound or symbol “adopted by a person with the intent to sign the record” to be an “electronic signature.” K.S.A. 2006 Supp. 16-1602(i). The UETA then provides that when a law requires a record or a signature to be in writing, an electronic record or signature will satisfy the law. K.S.A. 2006 Supp. 16-1607(c), (d). Thus, assuming that the court reporter’s equipment was consistent with modem practice, it would appear that the electronic capture of Mieko’s oral assent that this was the agreement would satisfy the statute of frauds. No more is needed to show that Mieko made or adopted the agreement. See 4 Brown, Corbin on Contracts § 23.1A (Supp. 2007).
Second, as we have already noted, Kansas law allows for oral separation agreements in divorce cases. K.S.A. 60-1610(b)(3) then provides that such agreements be incorporated into the decree of divorce if approved by the judge. It would be odd, indeed, if a settlement agreement incorporated under statutory authorization into a court order were to be held unenforceable for failure to comply with the statute of frauds — at least when that oral settlement was placed on the record and acknowledged by the parties in open court.
Third, additional statutory and caselaw developments over the past few decades support an exception to applicability of the statute of frauds when a judicial admission of the agreement has been made. The key statutory development has been Unifonn Commercial Code § 2-201, adopted in 1965 in Kansas as K.S.A. 84-2-201. It explicitly provides a judicial-admission exception to the statute of frauds for cases covered by the UCC. Because statutes on the same subject are in pari materia and are to be construed to achieve consistent results whenever possible, Newman Mem. Hospital v. Walton Constr. Co., 37 Kan. App. 2d 46, 67-68, 149 P.3d 525 (2007), the general statute of frauds and the UCC statute of frauds should be construed in similar ways to the extent possible. Thus, if possible, the general statute of frauds should be interpreted to include a judicial-admission exception since the UCC statute of frauds has one.
For example, the United States Court of Appeals for the Tenth Circuit relied in part on an analogy to the UCC provision when it concluded that a general exception to the Oklahoma statute of frauds existed for judicial admissions in Gibson v. Arnold, 288 F.3d 1242, 1246-47 (10th Cir. 2002). The Tenth Circuit noted that “virtually every court that has addressed the issue during the last twenty-five years has held that judicial admissions are an exception to the statute of frauds.” 288 F.3d at 1246. Here, Mieko’s in-court statement was a judicial admission and acknowledgment of the agreement.
Fourth, several courts either have held that the statute of frauds has no application at all to lawsuit settlements either supervised by a court settlement process or recited into the record in open court, see e.g., Kohn v. Jaymar-Ruby, Inc., 23 Cal. App. 4th 1530, 28 Cal. Rptr. 2d 780 (1994) (statute of frauds inapplicable to oral settlement stipulated to before court after formal settlement confer ence); Fuchs v. Fuchs, 65 App. Div. 2d 595, 409 N.Y.S.2d 414 (1978) (statute of frauds inapplicable when transcript of proceedings establishes terms of oral settlement); Owens v. Lombardi, 41 App. Div. 2d 438, 343 N.Y.S.2d 978 (1973) (same), or have used a purposive approach to statutory interpretation to hold that the statute of frauds should not be interpreted to allow avoidance of a lawsuit settlement recorded in court. See Brockman v. Sweetwater County School Dist. No. 1, 826 F. Supp. 1328 (D. Wyo. 1993), aff'd, 25 F.3d 1055 (10th Cir. 1994), cert. denied 513 U.S. 951 (1994). Application of those precedents also would result in enforcement of the oral settlement agreement.
We turn last to the authorities cited by Mieko. On the facts of our case, the New Mexico authorities she has cited, Tellez v. Tellez, 51 N.M. 416, 186 P.2d 390 (1947), and Herrera v. Herrera, 126 N.M. 705, 974 P.2d 675 (1999), do not suggest a contrary result. Tellez involved an attempt to enforce a premarital oral agreement involving real estate. 51 N.M. at 418. The dispute arose after the promisor-husband died and his widow learned that he had conveyed the real estate to his children and grandchildren, contraiy to the claimed oral promise to leave it for her. 51 N.M. at 418. The oral agreement in contemplation of marriage was held subject to the statute of frauds, 51 N.M. at 419-20, an unsurprising finding that is not analogous to our case in which a postmarital settlement agreement was reached and recited on the record before a judge. In Herrera, the court did conclude that the statute of frauds applies to marital settlement agreements. 126 N.M. at 708. But the court applied the judicial-admission exception to the statute of frauds to enforce the agreement since the party against whom the agreement was being enforced admitted in testimony that he had agreed to the terms of the oral agreement and had thought them to be fair. 126 N.M. at 709-10.
We need not reach the Herrera court’s conclusion that die statute of frauds applies to marital settlement agreements. A court should generally address only the limited issues that must be resolved to decide the case before it. As we have already demonstrated, if the statute of frauds is applicable, as the Herrera court held, the statute was complied with in our case. Even if it had not been literally complied with, however, both the Herrera opinion cited by Mieko and the other authorities we have cited would support applying the judicial-admission exception and enforcing the oral agreement. Similarly, the separate line of cases we have cited finding that the statute of frauds does not apply to court-supervised settlements recited in open court would also support enforcing the oral agreement.
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The opinion of the court was delivered by
Wertz, J.:
This was originally a divorce action. The defendant appeals from an order of the trial court overruling her motion to vacate the judgment entered therein.
On March 25, 1959, plaintiff (appellee) Robert A. Woodward filed his petition for a divorce in the district court of Geary county. Service of summons by publication was made upon defendant, as provided by our statutes. The answer day was May 7, and on that day, although she had consulted her California and Massachusetts attorneys, defendant appeared specially pro se and filed a demurrer (G. S. 1949, 60-705, First) entitled “Special Answer,” wherein she stated she was appealing specially to challenge the jurisdiction of the court over the parties and the subject matter of the action on the ground the plaintiff was not a resident of Kansas. Hearing on defendant’s special answer was set by the trial court for June 12, and defendant was so notified by registered mail. Notice was received by defendant on June 5, and on June 8 she filed an affidavit in support of her special answer but made no appearance at the hearing, either in person or by counsel.
The trial court, after hearing the evidence, overruled defendant’s special answer and found that the court had jurisdiction over the parties and the subject matter of the action. On July 3, the defendant having entered no general appearance, and being in default, the trial court called the case to trial, and after hearing the evidence granted plaintiff a decree of divorce. Defendant had knowledge on July 15 of the granting of the decree. On November 5, 1960, approximately sixteen months later, defendant filed a motion in the action under the provisions of G. S. 1949, 60-3007, Third, to vacate the decree of divorce because of irregularities practiced by plaintiff in obtaining the judgment.
Defendant contends the basic question on appeal is whether a default judgment can be rendered without notice to a defendant after his demurrer or special answer challenging the jurisdiction of the trial court has been overruled and no further appearance, either formal or general, has been entered in the action by the defendant. While it is true that a special appearance may be entered for the purpose of challenging the jurisdiction of the court, it is error to enter a default judgment without a hearing and ruling on the special pleading. (49 C. J. S., Judgments, § 196, p. 342.) However, the general rule of law on this question is well stated in 49 C. J. S., Judgments, § 199f, p. 349, that a default judgment may be entered against a defendant where he fails to plead over after his special plea to the jurisdiction of the court is overruled or denied. Where the jurisdiction of the court over the person of the defendant is challenged under a special appearance made pending the action, and before judgment, a judgment entered by default has been upheld on the ground that it does not constitute a general appearance. (30A Am. Jur., Judgments, § 202, p. 283.) In Randolph v. Barrett, 41 U. S. 138, 142, 10 L. Ed. 914, it was held that where a defendant appeared for the purpose of pleading in abatement only and the decision of the court upon the plea put him out of court, judgment by default was properly rendered against him because of his failure to appear again and plead to the action. In the instant case defendant’s special appearance did not constitute a formal or general entry of appearance in the action, and, when her objections to the jurisdiction of the court were overruled, her special appearance terminated and she was in default for want of a responsive pleading. If defendant desired to file further responsive pleadings, it was her duty to enter her appearance by applying to the court for additional time to plead further in the action. The terms and conditions upon which parties are allowed to file pleadings when they are in default are matters resting in the sound discretion of the trial court. (Mo. Tac. Rly. Co. v. Linson, 39 Kan. 416, 18 Pac. 498; Merten v. Newforth, 44 Kan. 705, 25 Pac. 204; Toplikar v. Kaufman, 132 Kan. 479, 482, 296 Pac. 363.) When a party to an action deliberately puts himself in default, so far as he is concerned the action may be tried and judgment may be rendered at any time thereafter. (Herman v. Gardener, 103 Kan. 659, 175 Pac. 971; Schockman v. Williams, 76 Kan. 299, 91 Pac. 64.)
Defendant maintains that plaintiff failed to comply with rules 48 and 49 of our court. (G. S. 1949, 60-3827.) All that needs to be said on this contention is that the mentioned rules apply only when an appearance of record has been made by counsel for a party in the action, and have no application to a special appearance ques tioning the jurisdiction of the court. (Stockgrowers State Bank v. Clay, 150 Kan. 93, 95, 90 P. 2d 1102.)
Inasmuch as defendant has failed to make it appear there were any irregularities in obtaining the decree of divorce on July 3, 1959, the trial court did not err in overruling her motion to vacate the judgment. The judgment of the trial court is affirmed
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The opinion of the court was delivered by
Parker, C. J.:
This action involves the construction of exclusion provisions of an insurance policy covering property damage liability. The district court found in favor of the insurance carrier and the insured has appealed.
The facts, all of which are stipulated or admitted by the pleadings, may be summarized as follows:
The Kendall Plumbing, Inc., entered into a contract to install a complete heating and air conditioning system in the Brown Building, Wichita, Kansas. In the prosecution of the work Kendall purchased, from two separate manufacturers, and installed a refrigerator unit and a Square D Starter. The only connection between the refrigerator unit and the Square D Starter was electrical wires.
At the time of the installation Kendall negligently failed to make the necessary pressure settings to the spring unit within the Square D Starter. About two months after the construction was completed the starter was disengaged by a Brown Building employee in the regular course of his duties and, because of insufficient spring pressure to push back the contactor within the Square D Starter, the electricity arced across and welded the contactors together. The power provided through the starter not being shut off the refrigerator unit ran without lubrication and was damaged in the sum of $2,711.73.
During all times material to this controversy Kendall had a property damage liability insurance policy with the appellee, The St. Paul Mercury Insurance Company, which was in full force and effect. It contained the following provision:
“The Company agrees to pay on behalf of the Insured all sums which the Insured shall become obligated to pay by reason of the liability imposed upon him by law or contract for damages because of damage to or destruction of property, including the loss of use thereof, caused by accident.”
The policy also contained an exclusion provision which excluded, from the coverage above mentioned, damage to or destruction of—
“Any goods or products manufactured, sold, handled, or distributed by the Insured or work completed by or for the Insured out of which the accident arises.”
Kendall paid for the damages to the Square D Starter and the refrigerator unit. It admits there is no liability on the part of the insurance carrier for damages to the Square D Starter but seeks to recover from such carrier the damage to the refrigerator unit. There was no other property damage caused by the defective installation of the Square D Starter. The district court found as follows:
“In this case, Kendall installed the starter negligently; that he also installed the refrigerator machine, the Worthington machine, and the faulty installation of the starter resulted in damage to the refrigeration machine. They were both separate units, but they were both installed by the plaintiff.
“It is admitted bere that the damage to the starter would not be covered under the policy and that no request has been made for damages to the starter.
“It seems to me that since both units, the starter and the refrigeration machine were installed by the plaintiff under a general contract with the Brown Building, that if the exclusion applies to the starter it would also apply to the refrigeration machine.”
Judgment was rendered accordingly. Kendall appeals.
The insurance carrier (hereinafter referred to as the appellee) contends that the exclusion provision excludes coverage damage to any item or part handled by Kendall (hereinafter referred to as the appellant) whether or not such item or part contributed to the injury.
Appellant contends that the exclusion provision excludes only the defective part which caused the injury but does not exclude other items handled or installed by it which were damaged by the defective item. This contention cannot be sustained. The exclusion provision definitely states that any goods or products handled or work completed by the insured are excluded. It is clear that the policy was intended to cover only damage to property or items which had not been handled by appellant. Goods or products handled by it, or work completed by it, were specifically excluded.
This court has not heretofore been called upon to place an interpretation on an exclusion provision such as the one now before us. However, similar provisions have been considered by courts of other states. In the case of Liberty Bldg. Co. v. Royal Indem. Co., 177 Cal. App. 2d 583, 2 Cal. Rptr. 329, 346 P. 2d 444, the court had under consideration a similar exclusion provision where a building contractor had constructed a large number of dwelling houses and many of the houses developed defects in the outside stucco walls. We quote from the opinion at some length because it makes reference to earlier decisions from other courts which will not need further mention. In the opinion the court said:
“. . . This Exclusion means that if the insured becomes liable to replace or repair any ‘goods or products’ or ‘premises alienated’ or ‘work completed’ after the same has caused an accident because of a defective condition, tire cost of such replacement or repair is not recoverable under the policy. However, if the accident also caused damage to some other property or caused personal injury, the insured’s liability for such damage or injury becomes a liability of the insurer under the policy, and is not excluded. For example, if a contractor builds a house and as a result of an improper mixture of the stucco, water is absorbed into the walls and the stucco cracks and falls off and a child is injured by the falling stucco, the injury to the child would not be excluded under Exclusion (f) but the replacement cost of the stucco would be excluded. Also, if the water absorbed into the walls should reach the interior walls and injure a valuable painting hanging there, the damage to the painting would be recoverable under the policy while the damage to the walls would not. The principle here applicable is well stated in Heyward v. American Casualty Company of Reading, Pa., 129 F. Supp. 4. At page 8 the court said: ‘This Exclusion means that the policy will not protect the insured if he has to repair or replace some product or work which proved defective and caused an accident. The Exclusion has no reference to liability for damage to other property or personal injury arising out of such accident.’ In accord are Volf v. Ocean Accident & Guarantee Corp., Ltd., 50 Cal. 2d 373 [325 P. 2d 987]; Geddes & Smith, Inc. v. St. Paul Mercury Indemnity Co., 51 Cal. 2d 558 [334 P. 2d 881].” (pp. 587, 588.)
In the case of Hauenstein v. St. Paul-Mercury Indemnity Co., 242 Minn. 354, 65 N. W. 2d 122, the court had under consideration an exclusion clause similar to the one under consideration. In that case a plaster distributor sold plaster which after being applied shrunk and cracked making it necessary to remove the plaster and apply new plaster to the walls and ceilings of the building. The plaster distributor was sued and its insurer refused to defend. In the opinion the court stated;
“No one can seriously doubt that the plaster before it was used or applied to a building was a product handled, sold, and distributed by the plaintiffs and therefore fell within the exclusionary clause so that any damage from injury to the plaster itself prior to use would not be covered by the policy. Plaintiffs contend, however, that the plaster after it had been applied to the walls and ceilings of the building lost its identity as goods and products within the meaning of the exclusionary clause and that any damage to it in its applied condition Is covered by the policy.
“1. Plaintiffs’ theory is that the plaster, after its application and use by the consumers, ceased to be goods or products and, by the law of accession, became a part of the realty. We cannot agree with this ingenious theory . . .” (pp. 356, 357.)
The court refused to allow recovery under the policy for the defective plaster but did allow resulting damages to the building.
Appellant relies upon the case of Pittsburgh Plate Glass Co. v. Fidelity & Cas. Co. of N. Y., 281 F. 2d 538. The case does not support its contention. In that case Pittsburgh Plate Glass Co. sold paint to a manufacturer of jalousies or outside Venetian blinds. The paint was applied to louvers and other steel parts which were incorporated into the jalousies. The paint was defective and peeled and flaked. The surfaces were exposed to the elements and rusted and deteriorated. Pittsburgh was sued and it requested its insurer, under a policy containing similar provisions to the one under consideration, to defend. The insurer refused to defend, Pittsburgh settled the suit pending against it and brought an action against the insurance carrier for indemnity. The district court had entered judgment for the insurer. The court of appeals reversed and remanded the case to the district court for further proceedings on the basis there was damage to the jalousies in addition to the defective paint. A footnote appended to the opinion reads:
“The parties agreed that under the terms of the policies the insurance did not apply to the paint itself and that there was no liability on the part of the insurance company to pay for defective paint or the costs of the replacement thereof.” (footnote [2], p. 540.)
Appellant next contends that the exclusion clause is ambiguous and should therefore be subjected to the rule that ambiguities in the wording of an insurance contract are to be construed in favor of the insured. Although ambiguities in the wording of an insurance contract are to be construed in favor of the insured, this rule of construction has no application whatever to language that is clear in its meaning. Unless a contrary intention is shown, words used in an insurance contract are to be given a natural and ordinary meaning that they convey to the ordinary mind.
In the more recent case of Smith v. Mutual Benefit Health & Acc. Ass’n, 175 Kan. 68, 258 P. 2d 993, this court cited with approval Knouse v. Equitable Life Ins. Co., 163 Kan. 213, 181 P. 2d 310. In the Knouse case we said:
“. . . An insurer prepares its own contracts and it is its duty to make the meaning clear and if it fails to do so, it and not the insured, must suffer. (Liberty Life Ins. Co. v. Guthrie, supra.) Courts should not be astute to evade, rather than quick to perceive and diligent to apply the meaning of words manifestly intended by the parties (Gorman v. Fidelity & Casualty Co. of New York, 55 F. 2d 4); but where a contract is unambiguous it must be enforced according to its terms (McKellar v. Brubaker, 160 Kan. 451, 163 P. 2d 358). Where a contract is not ambiguous, the court may not make another contract for the parties; its function is to enforce the contract as made. (State Highway Construction Cases, 161 Kan. 7, 166 P. 2d 728; Watkins v. Metropolitan Life Ins. Co., 156 Kan. 27, 131 P. 2d 722; Movitz v. New York Life Ins. Co., 156 Kan. 285, 133 P. 2d 89; Gorman v. Fidelity & Casualty Co. of New York, supra.)” (p. 216.)
See, also, Braly v. Commercial Casualty Ins. Co., 170 Kan. 531, 227 P. 2d 571, where, in considering established principles of contractual construction, we made the following statement:
"Another such principle appears in the opinion of Spence v. New York Life Ins. Co., 154 Kan. 379, 383, 118 P. 2d 514, where it is said:
“ ‘. . . the words of contracts of insurance are to be construed according .to the meaning of the terms used, and if it is clear and unambiguous its terms are to be taken and understood in their plain, ordinary and peculiar sense, (citing cases) . . .” (p. 383).’
“Still another is that the language of a policy of insurance, like any other contract, must, if possible, be construed in such manner as to give effect to the intention of the parties at the time it was made as expressed therein. It is to be noted, however, that in the' application of this rule the test is not what the insurer intended the words of the policy to mean but what a reasonable person in the position of the insured would have understood them to mean. (See Koehn v. Union Fire Ins. Co., 152 Neb. 254, 40 N. W. 2d 874, also Hoyt v. New Hampshire Fire Ins. Co., 92 N. H. 242, 29 A. 2d 121, and cases there cited.)” (p. 539.)
We find nothing ambiguous in the words or phrases used in the exclusion clause and this court should not search for ambiguities where the words used in the contract have a common and well understood meaning.
What has been heretofore stated and held requires that the judgment of the trial court be affirmed and it is so ordered. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action against a physician by a patient wherein breach of an express warranty is alleged as the basis for the recovery of damages. Appeal has been duly perfected by the defendant physician from an order of the trial court overruling a demurrer to the amended petition.
The question presented is whether the petition states a good cause of action sounding in contract or one in tort for malpractice. The statute of limitations would bar the latter but not the former.
The petition was filed January 30, 1960, in the district court of Wyandotte County, Kansas. After giving the plaintiff’s residence as Sedgwick County and the defendant’s residence as Johnson County, the amended petition alleges that the defendant is a duly licensed physician and surgeon under the laws of the State of Kansas and engaged in the practice of his profession at the University of Kansas Medical Center in Kansas City, Kansas. It then alleges:
“3. That prior to May of the year 1957, plaintiff was suffering from partial loss of hearing in both ears, but was able to 'hear and understand normal oral communications with either ear.
“4. That sometime during the middle of the month of May, 1957, the exact date being unknown to this plaintiff, plaintiff consulted with the defendant regarding this condition; that defendant examined the plaintiff and informed 'him that he was a good candidate for an operation known as a ‘Stapes Mobilization’ operation; that defendant undertook to treat plaintiff and agreed to perform such an operation on the hearing structures of each of plaintiff’s ears and at the same time orally agreed and wananted that while the operations might not have any beneficial effect the plaintiff’s hearing would not be worsened as a result of the operations.
“5. That in reliance on and in consideration for defendant’s promises and warranties plaintiff agreed to accept defendant’s services and to pay the reasonable cost therefor; that plaintiff allowed defendant to perform three of the aforesaid operations on his hearing structures. The first operation was performed by defendant on the hearing structure of plaintiff’s right ear on or about June 11, 1957. The second operation was performed by the defendant on the hearing structure of plaintiff’s left ear during the month of August, 1957. That approximately ten days thereafter and in accordance with defendant’s request, plaintiff returned to defendant for a postoperative examination; that defendant then informed plaintiff that he could do nothing more in the hearing structure of the left ear but that another such operation would be performed on the right ear in January of 1958. The third operation was performed by defendant on the hearing structure of plaintiff’s right ear on or about January 6, 1958; that about ten days later and at defendant’s request, plaintiff returned to defendant for a postoperative examination and was informed by defendant that nothing more could be done for the hearing structure of plaintiff’s right ear.
“6. That at some time during the operation of January 6, 1958, or very shortly thereafter, and as a direct result of said operation, the plaintiff suffered a severe decrease of hearing in his right ear to such an extent that he could no longer distinguish sounds, including oral communications, either with or without the use of artificial hearing aid; that this condition has continued to the present date and will continue for the rest of plaintiff’s life.
“7. That during the operation of August, 1957, or very shortly thereafter, and as a direct result of said operation, the plaintiff suffered a severe decrease of hearing in his left ear to approximately fifty percent (50%) of that which he had had prior to said operation and that he could no longer distinguish sounds, including oral communications, without the use of artificial hearing aid; that this condition has continued to the present date and will continue for the rest of plaintiff’s life.
“8. That the aforesaid resultant condition constituted a breach by the defendant of the contract entered into between the plaintiff and defendant in May of 1957 as heretofore set out; that plaintiff was not aware of the increased loss of hearing in his left ear until he suffered the complete loss of hearing in his right ear following the operation in January of 1958 and that upon learning of said condition plaintiff notified defendant in person during the month of January, 1958 and again in either February or March of 1958 by letter; that plaintiff is not sure of the exact date of said letter but that defendant is fully aware of the date upon which receipt was had by the defendant; that these communications constituted notification of the breach of warranty as aforesaid.
“9. That plaintiff has fully paid the defendant for the services rendered plaintiff under and by virtue of the aforesaid contract.
“10. That as a direct result of the breach of contract by the defendant and the resultant loss of hearing in plaintiff’s ears, plaintiff has been damaged . . .” (Emphasis added.)
The demurrer lodged against the amended petition charges that it (a) does not state facts sufficient to constitute a cause of action; (b) shows on its face that the cause is barred by the statute of limitations; and (c) contains a confusion of theories.
It is readily apparent from the foregoing allegations of the amended petition that no allegations of negligence have been made concerning the conduct of the appellant physician. Negligence is an essential element of malpractice, and for a patient to allege a cause of action on the theory of malpractice he must allege a causal connection between the negligent act of the physician and his injury. (Natanson v. Kline, 187 Kan. 186, 354 P. 2d 670.) Therefore, the appellee has not stated a cause of action on the theory of malpractice.
We fail to see any confusion of theories set forth in the petition. The cause of action is based on a breach of an express warranty made by the appellant for a consideration and upon which the appellee relied. The appellant contends, however, that irrespective of any express warranties made by a physician to a patient the only cause of action predicated thereon must sound in tort and allege malpractice.
As early as 1870 the Kansas court recognized the general rule that a physician may contract specially for a particular result. In Erastus Tefft v. Hardin H. Wilcox, 6 Kan. 46, the law was stated as follows:
“A practicing physician and surgeon is not considered as warranting a cure, unless under a special contract for such purpose. . . . (Syl. ¶ 8.)
It is generally recognized that a physician or surgeon may bind himself by express contract to perform a cure or obtain specific results by treatment or an operation. (41 Am. Jur., Physicians and Surgeons, § 105, p. 220; 70 C. J. S., Physicians and Surgeons, § 37, p. 942; 27 A. L. R. 1235, and supporting cases cited in these works.) In Colvin v. Smith [1949], 92 N. Y. S. 2d 794, 276 App. Div. 9, a physician and surgeon was unsuccessful in his attempt to remove a cataract from the plaintiff’s eye. An action based on the alleged breach of a special contract for the removal of the cataract followed. The court said in the opinion:
“A doctor and his patient are at liberty to contract for a particular result, and if that result be not attained, the plaintiff has a cause of action for breach of contract. . . . This cause of action is entirely separate from malpractice, even though they both, as here, may arise out of the same transaction. . . . The two causes of action are dissimilar as to theory, proof and damages recoverable. Malpractice is predicated upon the failure to exercise requisite medical skill and is tortious in nature. The action in contract is based upon a failure to perform a special agreement. Negligence, the basis of the one, is foreign to the other. The damages recoverable in malpractice are for personal injuries, including the pain and suffering which naturally flow from the tortious act. In the contract action they are restricted to the payments made and to the expenditures for nurses and medicines or other damages that flow from the breach thereof. . . .” (p. 795.)
A decision by the New York Court of Appeals to the same effect is Robins v. Finestone [1955], 308 N. Y. 543, 127 N. E. 2d 330.
In his brief the appellant relies upon Travis v. Bishoff, 143 Kan. 283, 54 P. 2d 955; Graham v. Updegraph, 144 Kan. 45, 58 P. 2d 475; Coulter v. Sharp, 145 Kan. 28, 64 P. 2d 564; Foster v. Kopp, 151 Kan. 650, 100 P. 2d 660; Becker v. Floersch, 153 Kan. 374, 110 P. 2d 752; and Maddox v. Neptune, 175 Kan. 465, 264 P. 2d 1073, and contends they “spell out the following mandate: (a) Substance prevails over form, (b) if the allegations reveal a surgeon performs an operation and damage results to the patient, the cause of action, if any, against the surgeon is Tor injury to the rights of another’ and (c) is governed as to the statute of limitations by Section G. S. 1949, 60-306 3rd (for actions arising in tort), (d) even if the action was in form for breach of a contract, and (e) whether through breach of contract or tort, the claim for damages from such physician is governed by the limitations for malpractice in view of its ex delicto (fault) source.”
In each of the foregoing cases cited by the appellant recovery of damages was sought upon allegations of negligence which are characteristic of malpractice — acts tortious in nature.
Once the relationship of physician and patient is established by contract, either express or implied, there are implied in law certain warranties and obligations by reason of such relationship. As a result rules concerning the liability of physicians in malpractice cases have become established. These rules have been frequently stated and many of them are collected in James v. Grigsby, 114 Kan. 627, 220 Pac. 267, where the cases are accumulated. Without further discussion or elaboration on such rules, the reader is referred to pages 631 and 632 in the James case. (See, also, Goheen v. Graber, 181 Kan. 107, 309 P. 2d 636.)
To assist in showing the distinction between forms of action which are characteristically in malpractice and those sounding in contract, we shall again resort to a New York case for illuminating language. In discussing the form of action in malpractice, whether fraud, deceit, concealment or contract, the New York Supreme Court in Calebrese v. Bickley [1955], 143 N. Y. S. 2d 846, 208 Misc. 407, affirmed as modified 150 N. Y. S. 2d 542, said:
“[ 4] Most of the difficulty in questions of this character arises from two mutually contradictory conceptions embraced in the labelling of actions. We do not have, except in certain specified instances, forms of action, each with its rigid requisite allegations. We allow recovery if the essentials of recovery are established, regardless of whether the facts conform to any classic category or not. Nevertheless, classifying the avenues of recovery into categories and giving them names is an essential process in any system based on precedent. Without some such method of classification, it would be impossible for the lawyer to advise, the attorney to plead, the legislature to regulate, or the judge to decide. The consequence has been a series of designations, not specifically defined but perfectly well understood and forming part of the arcanum of the legal profession. Not infrequently, the basis of recovery is along the lines of one of the categories, while the object sought would put the case in another.
“[ 5-9] Actions for malpractice often furnish examples of this situation. As malpractice covers every way in which a patient is injured through the dereliction of a doctor in his professional capacity, the approach, depending on the facts, can be through any of several familiar forms of action. But no matter what the approach, it remains an action for malpractice, not one for deceit, contract or anything else. A well recognized ground for recovery is where a physician represents that he has the skill to perform a certain operation when in fact he does not. This form of action requires the same elements of proof that an action in fraud requires, yet it could not be successfully disputed that as between the two it is an action for malpractice. Where, as here, the fraud consists in concealing the malpractice, it has been held that the gravamen is the malpractice and the concealment merely an item in chain of circumstances causing the damage. Tulloch v. Haselo, 218 App. Div. 313, 218 N. Y. S. 139.” (p. 848.)
For Kansas malpractice cases on concealment see, McCoy v. Wesley Hospital & Nurse Training School, 188 Kan. 325, 362 P. 2d 841; and Graham v. Updegraph, supra.
The improper performance by a physician or surgeon of the duties imposed upon him by reason of the professional services undertaken, whether under a contractual relationship with the patient arising out of either an express or implied contract of employment or the obligation imposed by law under a consensual relationship, whereby the patient is injured in body and health for which he seeks damages, is malpractice. It has thus been said an action for damages for malpractice is one in tort, even though there was a contract, or implied contract of employment. (Cassity v. Brady, 182 Kan. 381, 321 P. 2d 171.) And it is this situation— attempts to assert what is in substance a cause of action in malpractice as a cause of action in contract to avoid the two-year statute of limitations — to which the above Kansas decisions cited by the appellant were directed and apply. (In Maddox v. Neptune, supra, it was an attempt by the physician on demurrer to assert assault and battery alleged in the petition to invoke the one-year statute of limitations.) But these cases have no application to a cause of action based upon a special contract between a physician and his patient, or upon an express warranty by a physician for which there was consideration given by his patient, as here.
In Becker v. Floersch, supra, the petition alleged the defendant said he was an X-ray specialist and that he could guarantee to cure the tumorous growth that ailed the patient in ten X-ray treatments at $10 each, or for $75 in all. But these allegations were not asserted as a special contract in which the physician guaranteed to cure the patient. Concealment and continued treatment by the physician free of charge after the injury were asserted by the patient as grounds for avoiding the two-year statute of limitations.
We think the legal effect of the express warranty here alleged in the amended petition — “while the operations might not have any beneficial effect the plaintiff’s hearing would not be worsened as a result of the operations” — is equivalent to a special contract for a particular result. (See, Frank v. Maliniak [1931], 249 N. Y. S. 514, 232 App. Div. 278.)
By his amended petition the appellee seeks recovery of payments made for the appellant’s services, transportation expenses, and other doctor bills (Colvin v. Smith, supra; and Robins v. Finestone, supra), among other damages which need not be treated on demurrer to the pleading under attack. (See, McCoy v. Wesley Hospital & Nurse Training School, supra; Hawkins v. McGee [1929], 84 N. H. 114, 146 At. 641; McQuaid v. Michou [1932], 85 N. H. 299, 157 At. 881; and Challis v. Hartloff, 136 Kan. 823, 18 P. 2d 199.)
The amended petition herein discloses upon its face the cause of action was not commenced within two years after it accrued, but that it was commenced within three years. G. S. 1949, 60-306, provides in pertinent part:
"Civil actions, other than for the recovery of real property, can only be brought within the following periods, after the cause of action shall have accrued, and not afterwards:
“Second. Within three years: An action upon contract, not in writing, express or implied; . . .
“Third. Within two years: ... an action for injury to the rights of another, not arising on contract, . . .”
The appellant contends the limitation of the action is not determined by the form of the action, but by its object, and since the action stems from bodily injury to the appellee it is barred by the two-year limitation period. (See, Annotation in 157 A. L. R. 763, 766.) Here again it is asserted the fault source lies in tort. This is in substance a continuation of the argument heretofore made by the appellant which has already been answered.
A case squarely in point has been decided by the Oklahoma Supreme Court which has a statute of limitations identical to the Kansas statute. It was held in Seanor v. Browne [1932], 154 Okla. 222, 7 P. 2d 627, 151 A. L. R. 1031, where the plaintiff pleads a special oral contract that the defendant physicians agreed to cure the injury of the plaintiff for a reasonable fee and compensation, and further pleads a failure of the defendant to perfect said cure and pleads the amount paid the defendant for such service, the special contract thus pleaded is governed by the three-year statute of limitations.
Another authority to the same effect is Robins v. Finestone, supra. (See, McCoy v. Wesley Hospital & Nurse Training School.)
Analogy is to be found in our Kansas food poisoning cases where actions are permitted on an implied warranty and controlled by the three-year statute of limitations on the theory of contract, although the action stems from personal injury caused by eating food which is unfit for human consumption. The measure of damages in these cases is not confined to the price paid for the unwholesome or unfit food, but properly consists of all damages that were foreseen or could reasonably have been foreseen as likely to result from the particular sale of the food in question. (Challis v. Hartloff, supra, and authorities cited therein.)
In conclusion we hold the amended petition states a cause of action sounding in contract and is controlled by the three-year statute of limitations. The judgment of the lower court is affirmed. | [
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The opinion of the court was delivered by
Parker, C. J.:
This is a workmen’s compensation case where the claimants recovered in the proceeding before the Compensation Director and in the district court. The respondent, employer, and the insurance carrier appeal.
The proceeding was instituted by Rose Pence as the widow of her deceased husband and as guardian of his sole dependent minor child, hereinafter referred to as claimants or appellees, against Centex Construction Company, Inc., the employer, and its insurance carrier, United States Fidelity & Guaranty Company, hereinafter referred to as respondents or appellants.
Before submitting jhe cause to the Compensation Commissioner, now Compensation Director (see Laws 1961, Chapter 243, Section 7, now G. S. 1961 Supp., 74-710), hearings were conducted by an Examiner, at the direction of the then Commissioner, where the parties entered into the following stipulation:
“The date of death of the deceased was April 22, 1960; that the relationship of employee-employer existed between the deceased and Respondent on October 21, 1959; that the parties were covered by the Kansas Workmen’s Compensation Act; that Rose Pence is the legal guardian of Constance Joyce Pence, minor; that written claim was made within one (1) year; and that the deceased’s average weekly wage was $126.00. It was further agreed that no compensation had been paid and no medical or hospital was furnished and the funeral expenses were incurred . . .
“The questions remaining in issue were: (1) Whether deceased met with personal injury by accident on October 21, 1959; (2) Whether the alleged accident arose out of and in the course of employment with the Respondent; (3) Whether the deceased’s death on April 22, 1960 was caused by the alleged accident of October 21, 1959; (4) Amount of compensation due, if any; (5) Medical and hospital expenses due, if any.”
At the time of the abolishment of the position of Commissioner under Section 7, Chapter 243, Laws 1961, which became effective June 30, 1961, no hearing had been held and no award had been rendered by the Commissioner in the involved proceeding. In that situation his successor, having been appointed as Workmen’s Compensation Director in conformity with the provisions of such statute, reviewed the record theretofore presented to the former Commissioner for his decision.
Thereafter, and on August 8,1961, the Director made findings and rendered an award in accord with such findings in favor of the claimants and against the respondents, whereupon respondents appealed to the district court.
The findings on which the Director based his award read:
“The Director finds, in addition to the admissions and stipulations of the parties: That the deceased suffered personal injury by accident on October 21, 1959, in Shawnee County, Kansas; that this accident arose out of and in the course of the employment of the deceased with the respondent; that the death of the workman resulted from his accidental injury; that the claimant was temporarily totally disabled from October 21, 1959, to April 22, 1960, the date of his death; that compensation for 25.14 weeks should be awarded at $38.00 per week, totalling $955.32, which should be paid to his widow as his personal representative; that medical and hospital expense for the care and treatment of the claimant was incurred and paid by Rose Pence as follows: Stormont-Vail Hospital, $841.50 and Dr. John Crary, $217.00; that award should be entered requiring the respondent and insurance carrier to reimburse claimant for this medical treatment and $600.00 for burial expenses paid by her; that the claimants were totally dependent upon the deceased at the time of his death; that award should be entered allowing the claimants compensation in the amount of $12,544.68 to be paid one-half to claimant, Rose Pence, and one-half to Constance Joyce Pence, a minor, payable to Rose Pence, as her guardian.”
After hearing the appeal, in conformity with the provisions of G. S. 1961 Supp., 44-556, the district court found that the findings and award of tire Workmen’s Compensation Director were fully supported by the evidence in the case and adopted verbatim the findings and award of such Director as its findings and award. Thereupon it rendered judgment accordingly. Respondents then perfected the instant appeal.
Because they affect other contentions advanced by the parties we feel it necessary to dispose, at the outset, of four contentions to which we shall now refer.
Appellees challenge the right of appellants to be heard on the premise their specifications of error claim error of fact only. We do not agree. Without laboring the point it may be stated we believe appellees’ construction of such specifications is too technical and that, in our opinion, they should be construed as charging the particular matters therein complained of were not supported by any substantial competent evidence.
Appellants contend that in a workmen’s compensation proceeding the burden is upon the claimants to show that the injury for which compensation is claimed was one arising out of and in the course of the employment. It may be conceded, as appellees frankly admit, that such is the rule. See, e. g., Neal v. Boeing Airplane Co., 161 Kan. 322, 167 P. 2d 643, also Abbott v. Southwest Grain Co., 162 Kan. 315, 176 P. 2d 839, and other decisions cited at page 320 of the opinion in that case. Be that as it may it must be remembered, that in actions brought under the provisions of our compensation statute, that burden is satisfied if, during the trial of such a proceeding, the claimant introduces any substantial competent evidence which, if believed, tends to support the findings and award of the trier of fact even though there may be other competent evidence to the contrary which, if it had been given credence by the trier of fact, would have warranted findings and an award to the contrary. This principle, it may be added, is so well-established that it requires no citation of authorities supporting it.
Appellants further contend the award of the Director in this case does not comply with the provisions of G. S. 1949, 44-523, which require the Commissioner, now the Director, to file his award within thirty days. Under the facts of this case there are several reasons why appellants’ position on this point cannot be upheld. In the first place the record does not disclose that the cause had ever been sub mitted to the then Commissioner for final hearing. In the next, under somewhat similar conditions and circumstances, this court in Davis v. Haren & Laughlin Construction Co., 184 Kan. 820, 339 P. 2d 41, said:
“. . . Since the examiner”s ruling was not in writing in effect there was no award from which an appeal could be taken and claimant’s purported appeal of February 14, 1958, was of no effect. It was therefore within the competence of the commissioner to make an award upon the record adduced before the examiner. While G. S. 1949, 44-523 provides that an award shall be made within thirty days from the time the matter is submitted, this court held in Ketchell v. Wilson & Co., 138 Kan. 97, 99, 23 P. 2d 488, that although the statute is designed to secure prompt action, it does not impose a time limitation upon the commissioner’s jurisdiction to make an award.” (p. 822.) '
And last, but not least, when the cause was finally submitted to the successor Director the findings and award of that official were filed on the very day the hearing was concluded, i. e., on August 8, 1961.
What has just been stated fully disposes of the foregoing question. However, in passing, we note a side contention the Director had no authority to make the decision and enter the award because of the provisions of G. S. 1961 Supp., 44-551. We find nothing in this section of the statute which precludes the Director from making an award in a compensation case, as authorized by other sections of our Compensation Act, and hold to the view that the provisions of such section have no application under the facts and circumstances here involved.
We have held many times that whether a judgment is supported by substantial competent evidence is a question of law, as distinguished from a question of fact. (See Beaver v. Tammany Industries, 180 Kan. 440, 443, 304 P. 2d 501; Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, Syl. ¶ 5, 139 P. 2d 846; Hill v. Etchen Motor Co., 143 Kan. 655, 56 P. 2d 103.)
In their brief and on oral argument appellants raise three questions. For purposes of this appeal such questions can be consolidated, considered together, and treated as a single question which may be stated thus.
Does the record disclose any substantial competent evidence to support the Director’s and the district court’s findings that the deceased workman suffered personal injury by accident on October 21, 1959; that this accident arose out of and in the course of his employment with the respondents; and that his death resulted from his accidental injury?
In any approach to the foregoing question it should be stated that the rule in this jurisdiction, so often repeated as to hardly require reference to our decisions, is that it is the function of a trial court to pass upon the facts in a workmen s compensation case and that under G. S. 1961 Supp., 44-556, this court is limited on appellate review to “questions of law” which in final analysis, simply means that its duty is to determine whether the trial court’s factual findings are supported by any substantial evidence. See, e. g., McDonald v. Rader, 177 Kan. 249, 251, 277 P. 2d 652; Kafka v. Edwards, 182 Kan. 568, 571, 322 P. 2d 785, and the numerous decisions there cited, also Cross v. Wichita Compressed Steel Co., 187 Kan. 344, 356 P. 2d 804.
Moreover, in the face of the record presented, it should be stated, that despite some specious argument of appellants to the contrary, we are convinced the duties and obligations of this court in determining the question now under consideration are those described and set forth in Silvers v. Wakefield, 176 Kan. 259, 270 P. 2d 259 (repeated in Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 185, 186, 334 P. 2d 370, and Cross v. Wichita Compressed Steel Co., p. 346, supra), where it is said:
“Under G. S. 1949, 44-556, appellate jurisdiction of this court in compensation cases is confined to reviewing questions of law only. In doing so, it is necessary to determine whether the record contains any evidence which tends to support the judgment rendered, and in so considering, this court is required to view all testimony in the light most favorable to the prevailing party below. If when so considered, the record contains any evidence which supports the trial court’s judgment, that judgment must be affirmed; being conscious at all times of the fact that this court has little concern with disputed questions of fact in ordinary lawsuits and none whatever in workmens compensation cases, except to ascertain whether the record contains any evidence which on any theory of credence would justify the trial court’s finding or conclusion of fact. (Citing cases.)” (pp. 259, 260.)
Much of appellants’ argument is based on claims, strenuously urged, that the evidence of record in this case is based entirely on hearsay and other incompetent evidence of no probative value, without any substantiating evidence which would be admissible in a court of law.
It is neither necessary nor required that we here write a thesis on the subjects of the admissibility of hearsay evidence and the probative force and effect to which it is entitled when admitted in workmen’s compensation cases. However, brief reference will be made to some of our decisions dealing with these and kindred subjects.
In Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276, a case where the workman died from his injuries, we said:
“The commissioner as an administrative officer beard testimony concerning the subject of death resulting from accidental injury, not admissible under the rules of evidence applicable to procedure in court. He was permitted to do this by statute (R. S. 1931 Supp. 44-523 [now G. S. 1949, 44-523]). In reviewing the commissioner’s work, the courts may not nullify it by applying their own standards; and if the commissioner’s decision be based on substantial and satisfactory evidence, relevant, reasonable, and persuasive, though not technically admissible under the rules of evidence governing procedure, the decision will be upheld. (Holt v. Peterson Construction Co., 134 Kan. 149, 151, Syl. ¶ 2.) . . .” (pp. 380, 381.)
In Parker v. Farmers Union Mut. Ins. Co., 146 Kan. 832, 73 P. 2d 1032, another death case — where the Freeman case was quoted with approval, the admission of hearsay evidence was approved and an award in favor of the claimant affirmed.
In another death case, Love n. Kerwin, 187 Kan. 760, 359 P. 2d 881, in dealing with the subject of hearsay evidence, this court held it had been cited to no cases where hearsay had been stricken from the record and, citing decisions, said “Many of our cases have held that the common-law rules as to the competency of evidence are not to be strictly applied in workmens compensation cases.”
We have dealt with the admission and probative value of hearsay evidence in many workmens compensation cases, particularly in view of the liberal provisions of Section 23 of our Compensation Act, as originally enacted in 1927 [now G. S. 1949, 44-523], where injured workmen did not die from their injuries. For one of such cases see Son n. Eagle-Picher M. & S. Co., 144 Kan. 146, 58 P. 2d 44, where it is said:
“Another question is raised by appellant as to the effect of the omission of the two words ‘or evidence’ from the amendment of the section of the compensation law in 1927, being R. S. 1933 Supp. 44-523 [now G. S. 1949, 44-523], where the legislature specifically directed that in investigations for compensation the technical rules of procedure would not be binding. This matter, as we understand it, has been passed upon twice to the effect that procedure under this amendment includes evidence. (Freeman v. Fowler Packing Co., 135 Kan. 378, 11 P. 2d 276; and Walz v. Missouri Pac. Rld. Co., 142 Kan. 164, [166], 45 P. 2d 861.)” (p. 152.)
See, also, Holt v. Peterson Construction Co., 134 Kan. 149, 4 P. 2d 428, which holds:
“A finding and award of the compensation commission free from fraud or unfairness, based on relevant and persuasive evidence, will be upheld although some of it was not in accord with the technical rules of evidence applicable in common-law actions in trials before a judicial tribunal.” (Syl. ¶ 2.)
And see Dean v. Hodges Bros., 170 Kan. 333, 224 P. 2d 1028, where, after quoting from what is now G. S. 1949, 44-523, we said:
“In construing the force and effect of the section of the statute just quoted we have held many times the rules of the civil code are not applicable in compensation proceedings and that the commissioner should not confine the parties to strict rules of evidence.” (p. 335.)
And then quoted with approval what is said and held at pages 380 and 381 of Freeman v. Fowler Packing Co., supra.
For a general statement dealing with matters referred to in the foregoing decision see Wilson v. Santa Fe Trail Transportation Co., 185 Kan. 725, 347 P. 2d 235, where it is said:
“Consideration of these claims is interwoven with the first two questions presented by the respondent.
“By express mandate the commissioner in a workmen’s compensation proceeding is not bound by technical rules of procedure (G. S. 1949, 44-523), and the commissioner is directed to hear and determine the matters presented, and to make findings or an award such as he shall determine fair and equitable under the provisions of the act (G. S. 1949, 44-522). The workmen’s compensation act establishes a procedure of its own which provides a remedy that is substantial, complete and exclusive in compensation cases. (Employers’ Liability Assurance Corp. v. Matlock, 151 Kan. 293, 98 P. 2d 456; and cases cited therein.)” (p.738.)
Objections are made that the testimony of Dr. Crary, who was the deceased’s attending physician and was told the history of the case by such workman as to symptoms and also how the accident happened, was hearsay and therefore inadmissible as evidence. This contention is squarely answered in Holt v. Peterson Construction Co., 150, 151, supra, where a similar contention, founded on like conditions and circumstances, was rejected by this court. The books are full of cases where the testimony of medical experts, based on the history of a case as gleaned from statements made by their patients, has been properly received in evidence and given probative force and effect.
Further objections to the effect Mrs. Pence was an incompetent witness to testify to conversations had by her with her husband require little attention. This court, for reasons stated in McDonnell v. Swift & Co., 124 Kan. 327, 259 Pac. 695, has held that, in an action for compensation under the Workmen’s Compensation Act by the widow as a dependent of a deceased workman, the widow is not, by virtue of R. S. 60-2804 (now G. S. 1949, 60-2804) or R. S. 60-2805 (now G. S. 1949, 60-2805, Third), incompetent to testify to communications made to her by her husband.
In leaving evidentiary questions it should be kept in mind that under all our decisions, (see, e. g., Thuillez v. Yellow Transit Freight Lines, 187 Kan. 618, 358 P. 2d 676; Silvers v. Wakefield, Syl. ¶ 2, supra; Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496; Williams v. Cities Service Gas Co., 151 Kan. 497, 99 P. 2d 822; Supica v. Armour & Co., 131 Kan. 756, 293 Pac. 483), the rule in workmens compensation cases is that the claimant is not required to establish his right to an award by direct evidence alone, or that he produce an eyewitness to the accident; and that circumstantial evidence may be used to establish the claim and it is not necessary that such evidence should rise to that degree of certainty as to exclude every reasonable conclusion other than that found by the trial court.
It goes without saying that appellants’ position on the all decisive question previously posed is that the record discloses no substantial competent evidence on which the Director or the district court based the findings and award in favor of the appellees.
Nothing would be gained by prolonging this opinion with a detailed statement of the evidence disclosed by a lengthy record. It suffices to say we have carefully and painstakingly read, considered and reviewed all evidence adduced by the parties in the light of the foregoing decisions and, after doing so, find that, among other things, such record discloses:
(1) Substantial competent evidence to the effect that on Wednesday, October 21, 1959, while working for the respondent, employer, on a very hard job — as hard as he was required to work — and while stooping over and exerting himself driving nails, the deceased workman commenced to have severe pains in his chest and thereafter became sick and advised his boss accordingly; that the deceased appeared in good health on the morning of the 21st when he left home for work and from his general appearance appeared to be a sick man when he came home from work that evening; that the deceased never went back to work; that on the following Sunday (October 25, 1959) the deceased’s condition had not improved; that on that day (October 25) Dr. Crary was contacted and placed deceased in the hospital where he remained for fourteen days; that he returned to the hospital for die second time in December, 1959; that he re-entered the hospital for a third time in March, 1960; and that he was subsequently returned to the hospital on April 16, 1960, where he remained until the date of his death (April 22, 1960) which, according to his doctor was due to heart failure as the result of coronary sclerotic changes.
(2) Substantial competent evidence by the deceased’s attending physician, Dr. Crary, who testified the deceased had apparently had a type of angina pectoris pain and at the time of his examination of such disease in October, 1959, his diagnosis was coronary thrombosis with coronary occlusion and myocardial infarction.
Further testimony of this witness can be demonstrated by quoting certain questions put to him and answers made thereto.
“Q. You are supposed to answer all the questions and then the Commissioner rules on them. A. The process of the coronary occlusion due to a thrombosis is felt, as far as my opinion is concerned, that it probably, that it must have begun on October 21st.
“Q. In other words, this thing, the onset of this thing occurred in July of ’59? A. For the record I think it should be stated that there is a difference. My feeling that he was having what we call angina pectoris was in July.
“Q. And the next step then, is the thrombosis which is the forming of a blood clot or a closing of the coronary arteries or the blood vessels, and when it is completely closed it causes a coronary occlusion? A. Correct.
“Q. And the coronary occlusion causes the myocardial infarction at the time? A. Correct.
“Q. And the myocardial infarction caused the death, in your opinion? A. Yes.
“Q. All right. This is all a gradual process, is it not, Doctor? A. Not exactly. Now when a coronary thrombosis occurs this happens very quickly, possibly within hours or even a few days.
“Q. That [referring to a prior answer of the witness relating to the relationship of effort to the onset of coronary thrombosis and the onset or beginning of the first symptoms thereof evidenced by the deceased] was in July of ’59? A. That was on October 21st.
“Q. Well, Doctor, I thought you said that the man had a pain originally in July of ’59? A. This is different. This man, as my clinical history gave, he had what we call angina pectoris, that these symptoms would come and go but it wasn’t until October 21st that he had his severe attack of pain which continued, which nitroglycerin didn’t relieve.
“Q. And, Doctor, isn’t it also true that many people have angina pectoris for many years and never suffer a thrombosis or infarct? A. That’s correct.
“Q. To clarify it, on October 21st, in your opinion that is the time the changes actually occurred wherein an infarct or tissue death developed, is that true? A. That is my opinion.”
In the face of the foregoing evidence, and other testimony which has not been here detailed because of limits of time and space, we have little difficulty in concluding that, under the facts and circumstances of this case, the record discloses sufficient substantial competent evidence to sustain (1) the findings of the Director and the trial court that the deceased workman suffered accidental injury, that the accident arose out of and in the course of his employment, and that his death resulted from such accidental injury and (2) the awards made in accord with such findings. It follows the judgment and award of the district court must be affirmed.
In passing it should be stated we believe there is another sound reason for affirming the district court’s judgment. The evidence of record warrants a conclusion the physical structure of the workman involved in this case gave way under the stress of the usual labor he was doing on October 21, 1959. In that situation, under well considered decisions, it has been established that our Workmen’s Compensation Act prescribes no standard of health for a workman, and if his physical structure gives way under the stress of his usual labor his death is an accident which arises out of his employment. See, e. g., Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; Workman v. Johnson Bros. Construction Co., 164 Kan. 478, 479, 480, 190 P. 2d 863; Carney v. Hellar, 155 Kan. 674, 127 P. 2d 496; Gilliland v. Cement Co., 104 Kan. 771, 180 Pac. 793. Moreover, under our decisions it is well-established that accidental injuries are compensable where the accident only serves to aggravate or accelerate an existing disease. (Holler v. Dickey Clay Mfg. Co., 157 Kan. 355, 139 P. 2d 846; Carney v. Hellar, 677, supra; Williams v. Cities Service Gas Co., Syl. ¶ 5, supra; Hatcher’s Kansas Digest [Rev. Ed.], Workmen’s Compensation, § 16; West’s Kansas Digest, Workmen’s Compensation, § 556.)
It appears from the record presented that two more questions raised by the parties, one by the appellants and one by the appellees, are not here subject to appellate review. For that reason they require no further attention.
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The opinion of the court was delivered by
Price, J.:
This was an action to rescind a written agreement by which a partnership was dissolved and for an accounting of profits accrued after the effective date of dissolution. From a judgment in favor of plaintiff, defendants have appealed.
The factual background of the matter is this:
In 1913 the defendant, Edgar Stewart, started in the paving contracting business. Two years later his brother, defendant Oscar Stewart, joined him as a partner, and the business was operated as the Globe Construction Company. In 1941 Edwin M. Curry, the plaintiff herein, married Edgar’s daughter. In 1942 Curry began working for the company at a salary of $500 per month. At about the same time defendant Kenton Stewart, Edgar’s son, also com menced working for the company at the same salary. On or about August 1, 1946, Edgar and Oscar took Curry and Kenton into the partnership under a general partnership contract wherein each of the partners had a one-fourth interest. It will be seen, therefore, that the partnership consisted of Edgar and Oscar, who were brothers, Kenton, who was Edgar’s son, and Curry, who was Edgar’s son-in-law. At that time the capital of the partnership amounted to approximately $13,000.
Retween 1946 and May, 1957, the partners also engaged in the oil business. These interests were held by the partners individually but were paid for out of partnership funds, and the oil run checks, although made out to the partners individually, were endorsed by them and deposited in the partnership bank account. The partnership prospered, and in the spring of 1957 its assets exceeded $1,000,000.
Prior to 1955 Curry had been a “social drinker,” but about that time marital difficulties developed between him and his wife (Edgar’s daughter), and from then on his addiction to drink was such that at least on one occasion he was hospitalized in Wichita for alcoholism. It appears that during the entire period in question Edgar was in fact the actual managing partner and that Curry had respect for and confidence in Edgar’s ability. It also appears that Curry contributed very little, if any, work or responsibility concerning the operations of the business, and particularly after his drinking problems came about. His marital difficulties did not improve — and in fact became worse — all of which, of course, contributed to the situation with respect to the business. It appears that a number of discussions were held, principally between Edgar and Curry, looking toward some solution of the problem, and apparently it was determined and agreed that insofar as Curry was concerned the partnership should be dissolved.
' Early in May, 1957, a partnership dissolution agreement was prepared by the provisions of which Curry was to assign certain of his interests in the partnership to the other three partners and to retain one-half of the property remaining in his name. In consideration of Curry’s relinquishment the other partners agreed to hold him harmless on account of any liabilities of the partnership as of the date of dissolution, and further, the interest assigned by him was to be held in trust by the other partners and to be applied to the payment of any alimony or child support judgment that might be rendered against Curry in the event of a divorce between his wife and him.
On May 13,1957, pursuant to conversations and an understanding about the matter, Curry appeared at the office of one Mike Taylor, the accountant for the firm, at which time he signed the dissolution agreement in question. On several occasions thereafter (and which will be mentioned later) Curry also executed other instruments in the furtherance of the dissolution.
On September 17, 1957, Curry filed this action to rescind the dissolution agreement and for an accounting. Briefly, his petition alleged that in May, 1957, he was ill, intoxicated and under the influence of sedatives to such an extent that he was in no mental or physical condition to transact business, which fact was well known to the other three defendant partners; that a fiduciary relationship existed between him and Edgar and the other partners, and that in the execution of the dissolution agreement he was overreached and defrauded.
Defendants joined issue with an answer containing specific denials of the wrongdoings alleged in the petition.
Following a full hearing, at which considerable oral evidence and numerous exhibits were introduced, the trial court rendered judgment holding the dissolution agreement to be null and void, and ordered an accounting of the assets and profits of the partnership.
In rendering judgment the court made findings of fact and conclusions of law — which, however, for our purposes need not be set out in detail. Although they covered several phases of the case, it seems clear that they, and the judgment rendered thereon, were premised basically on the fact that:
“During the entire month of May, 1957, the plaintiff was mentally incompetent to exercise independent, normal judgment about the transaction of business affairs, or to understand their consequences.” (Finding No. 14.)
In their appeal defendants take sharp issue with many of the findings — and particularly with the one above quoted.
At the outset it should be stated that we approach this case with full recognition of the fundamental and universal rule to the effect that our province is to examine the record in the light most favorable to the prevailing party below, that we are not triers of fact, and that when findings of the trial court are supported by competent substantial evidence they are binding and conclusive on appeal.
The phrase “substantial evidence” — while perhaps incapable of precise definition — has been variously defined as “evidence of substance which induces conviction,” and as “evidence affording a substantial basis of fact from which the fact in issue reasonably can be inferred.” It also has been said that testimony so completely contradictory that one part destroys the other is not “substantial evidence." (See Words and Phrases, Permanent Edition, Vol. 40.)
In Weimer v. Sauder Tank Co., 184 Kan. 422, 425, 337 P. 2d 672, it was said that the term “substantial evidence,” when applied by this court, means evidence possessing something of substance and relevant consequence, and which furnishes substantial basis of fact from which the issues tendered reasonably can be resolved. (See also In re Estate of Harris, 166 Kan. 368, 201 P. 2d 1062, and Barr v. Builders, Inc., 179 Kan. 617, 619, 296 P. 2d 1106.)
It is noted that in the finding above quoted — and in other findings and conclusions — the trial court did not find that Curry was intoxicated or under the influence of liquor when he signed the dissolution agreement on May 13, 1957, which is the crucial date in this case. The finding is that during the entire month of May he was mentally incompetent to exercise independent normal judgment concerning business affairs or to understand their consequences. The fair and reasonable construction to be given such finding, of course, is that Curry’s “incompetence” was the result of his excessive use of liquor over an extended period.
Concededly, in May, 1957, Curry was what may be termed an “alcoholic” — and had been for some time. No one denies such fact, and it undoubtedly brought about the decision to effect a dissolution of the partnership insofar as he was concerned. The rule is, however, that a contract by an alcoholic may not be avoided on that ground — if at the time of its execution he was sober and in possession of his faculties. One’s dissipated condition, standing alone, is not itself a ground for avoiding a contract or deed. An habitual drunkard is not necessarily incompetent as a matter of law, and, in the absence of an adjudication finding an habitual drunkard to be incompetent, in order to avoid his contract or deed on the ground of his incompetency it must be shown that his mental condition was such at the time the contract or deed was made that he lacked the power of reason and was unable to comprehend the nature and consequences of his act in entering into the contract or executing the deed. (29 Am. Jur., Insane Persons [Habitual Drunkenness], §85, p. 206.)
In In re Estate of Crawford, 176 Kan. 537, 271 P. 2d 240, it was claimed that the grantor in a deed was at the time of its execution physically and mentally incompetent due to the effects of illness, alcohol and medicine. The trial court held otherwise, and in affirming the decision this court held (syl. 1) that the test of mental capacity to contract or to convey property is whether the person possesses sufficient mind to understand in a reasonable manner the nature and effect of the act in which he is engaged, and (syl. 2) that mere suspicion, conjecture or possibility that undue influence or fraud has induced the execution of a deed is insufficient to establish such fact, and that power, motive and opportunity to exercise undue influence do not alone authorize the inference that such influence was in fact exercised. In the opinion it was said:
“In their brief plaintiffs argue three questions. The first is that the court erred in its general finding that the grantor was mentally competent at the time of execution of the deed. Plaintiff widow of course was not present at the time and her evidence on this question consisted almost entirely of medical testimony and hospital records which clearly established the fact that on numerous occasions, both before and after the day in question, Crawford was undergoing treatment for mental and physical disorders allegedly brought on by the excessive use of alcoholic liquor over a period of years. Plowever, assuming that evidence to be true, the matter still resolves itself into the precise question whether at the time he signed the deed Crawford was competent to understand the nature of the transaction. All of the evidence directly bearing on the issue was that he was competent and that at the time was not under the influence of liquor. In Venable v. Bradbury, 111 Kan. 495, 207 Pac. 647, it was held:
“ ‘No invalidity can be predicated on the intemperate habits of the plaintiff where it appears that he was not intoxicated or incapable of understanding what he was doing when the transfers were made.’ (Syl. 4.)
“In the exhaustive opinion in Ismert-Hincke Milling Co. v. Ismert Estate, 136 Kan. 617, 16 P. 2d 521, the following rule was stated:
“ ‘The ultimate legal standard of mental capacity to execute a will or promissory note is competency to know and understand the transaction.’ (Syl. 1.)” (pp. 540, 541.)
It is quite true that on direct examination Curry testified to the effect that on May 13th he was “pushed” into signing the dissolution agreement, and that he was not afforded the opportunity to have a full understanding of “what was going on.” On cross-examination, however, he specifically contradicted those statements. When asked if he wanted the court to understand that he was drunk at the time the agreement was executed he replied:
“No, I do not want the Court to understand that I was drunk, but I had some drinks. I had got up and had some drinks and that was around the house and nobody was there and I played with my dogs.”
When asked if he was “fully aware” of what was going on at the time the agreement was executed he replied in the affirmative. He also testified that on a number of occasions prior to May 13th the matter of dissolving the partnership had been discussed, particularly between him and Edgar. Nowhere in his testimony did he state or contend that he was drunk at the time the agreement was signed.
We find no substantial evidence in the record to support the proposition that at the time and place in question Curry was intoxicated, or to support the finding by the court of incompetency at the time and place in question such as to avoid the agreement.
And aside from what has been said, we think there is still another compelling reason why the judgment of the trial court cannot be upheld.
The undisputed facts of record are that subsequent to May 13th Curry did a number of things which show clearly that he understood and ratified the entire transaction. On May 14th he returned to the office of accountant Taylor to secure a copy of the dissolution agreement. On May 17th he again went to the accountant’s office and executed an assignment of an interest in a gasoline plant pursuant to the terms of the agreement. On several occasions thereafter he signed transfer orders pursuant to the agreement. On July 30th, in the presence of his brother, who was a banker, he signed further transfer orders pursuant to the agreement. And, as urged by defendants, perhaps even more important to show ratification is the fact that he received the oil run payments individually and mingled those funds with his regular bank account. He did this for several months — thus showing his satisfaction and evidencing his intention to ratify the agreement. In addition to using the proceeds from the agreement “to live on,” he paid his own proportionate share of the operating expenses on the oil and gas interests retained by him pursuant to the agreement. Prior to the execution of the agreement those expenses were paid from the partnership account.
On the matter of ratification and waiver of right to rescind a contract see Trust Co. v. McIntosh, 68 Kan. 452, 458, 75 Pac. 498, 1 Ann. Cas. 906, and Morse v. Kogle, 162 Kan. 558, 178 P. 2d 275, where it was held:
“If, after discovery or knowledge of facts which would entitle a party to a contract to rescind the contract, he treats the contract as binding and leads the other party to believe that the contract is still in effect, he will have waived his right to rescind.” (Syl. 2.)
See also 12 Am. Jur., Contracts, § 449, p. 1030, and that portion of the annotation “Intoxication As Ground For Avoiding Contract,” 36 A. L. R. 619, at p. 625, where it is said:
“If a person who enters into a contract while he is intoxicated fails to dis-affirm the agreement within a reasonable time after he becomes sober and has full knowledge of what he has done, he thereby ratifies the contract and is bound thereby.”
Reference also is made to § 23 of the annotation “Ineffective Conveyance — Ratification,” 7 A. L. R. 2d 294, at p. 325.
Assuming — but by no means conceding — that the facts and circumstances surrounding the execution of the dissolution agreement on May 13th were such as to provide sufficient grounds for its avoidance, the record makes it clear that by his subsequent acts Curry ratified its terms and provisions and waived any pretended right that he may have had to rescind.
As previously stated — although the trial court’s findings and conclusions covered several different phases of the case, and which are urged by Curry in support of the judgment — it is very clear that the basic premise upon which this action was filed, tried and decided, is that at the time the dissolution agreement was executed on May IS, 1957, Curry was intoxicated or else was so incompetent due to the excessive use of liquor over an extended period that he was unable to understand and transact business affairs. As also stated — we find no substantial evidence in the record to support either proposition. Furthermore, assuming, solely for the salce of argument, there were infirmities in the execution of the agreement sufficient to avoid it — Curry, by his subsequent acts, ratified it and waived any rights he may have had for rescission.
Other contentions in support of the judgment have been considered, but, in view of the facts shown by the record, are held to be without merit. No useful purpose would be served by extending this opinion. The judgment is reversed with directions to enter judgment in favor of defendants. | [
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