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The opinion of the court was delivered by
Fatzer, J.:
In this workmen’s compensation case the commissioner found that the relationship of employer and workman did not exist between the claimant and the respondent, Heckendorn Manufacturing Company, at the time the claimant sustained personal injury resulting in the loss of his right eye, and denied an award of compensation. Upon appeal, the district court found that the claimant’s injury did not arise out of and in the course of his employment with the respondent and affirmed the order of the commissioner denying compensation.
The parties concede the sole question presented for appellate review is whether there was substantial evidence to support the district court’s findings.
Claimant was employed by the respondent as a salesman of new and used power mowers and worked approximately half time for respondent and half time for another employer, doing sales work in both instances.
There was evidence that on February 13, 1959, claimant returned home from a sales trip in behalf of respondent. After parking the truck furnished him by respondent on the street in front of his home, he walked through the garage to go into his home to call a prospective purchaser for a mower he had secured on his trip. As he walked through the garage, he struck his head on the crossbeam above a low door in his garage. After receiving the blow, he continued on into his home and telephoned the prospect that he had the mower on his truck but he would not be out to show it that evening because he had struck his head and had a bad headache. His condition was diagnosed as a detached retina. Later, the right eye was enucleated and claimant was supplied with an artificial eye sometime after August, 1959.
The question whether disabling injuries to a workman arose “out of” and “in the course of” the employment and to what extent and duration the physical efficiency of the workman has been impaired is a question of both law and fact to be determined by the workmen’s compensation commissioner, and the district court on appeal. In the exercise of that jurisdiction, it is the duty of those tribunals to apply their best judgment and determine, among other things, whether those conditions exist, and if found to exist, to make just and reasonable awards based upon the evidence (Daugherty v. National Gypsum Co., 182 Kan. 197, 318 P. 2d 1012), keeping in mind, however, that the burden of proof is upon the claimant to establish that both conditions exist. (Rush v. Empire Oil & Refining Co., 140 Kan. 198, 200, 34 P. 2d 542; Brenn v. City of St. John, 149 Kan. 416, 422, 87 P. 2d 546; Burns v. Topeka Fence Erectors, 174 Kan. 136, 254 P. 2d 285; 9 West’s Kansas Digest [Part. 2], Workmen’s Compensation, § 1339, p. 588.)
The supreme court is limited on.appellate review to “questions of law” which, in the final analysis means that its duty is to determine whether the findings of the district court are supported by substantial evidence. (G. S. 1959 Supp., 44-556; Cooper v. Morris, 186 Kan. 703, 352 P. 2d 35; Cody v. Lewis & West Transit Mix, 186 Kan. 437, 351 P. 2d 4, and cases cited.) In Heer v. Hankamer Excavating Co., 184 Kan. 186, 334 P. 2d 372, it was said:
“. . . It has been held many times that in reviewing the record in a workmen’s compensation case our task is to determine whether there is any evidence which supports the judgment rendered, which is required to be considered in the light most favorable to the prevailing party below, and, if there is any evidence to support the judgment it must be affirmed even though the record discloses evidence which might warrant the district court making a finding to the contrary. (Barr v. Builders, Inc., supra; Pinkston v. Rice Motor Co., 180 Kan. 295, 303 P. 2d 197; Shobe v. Tobin Construction Co., 179 Kan. 43, 292 P. 2d 729.) Numerous decisions of like import will be found in 9 West’s Kansas Digest, Workmen’s Compensation, §§ 1940-1969, and 5 Hatcher’s Kansas Digest (Rev. Ed.), Workmen’s Compensation, § 153.” (l. c. 187.)
In Allen v. Goodyear Tire & Rubber Co., 184 Kan. 184, 334 P. 2d 370, it was said:
“. . . It is not for us to say what testimony should be given credence and what evidence should be disbelieved. We have neither the duty nor the authority to weigh the evidence, and it is of no consequence that if we had been the triers of fact we might have reached a conclusion with respect to the facts different from that of the trial court. . . .” (1. c. 186.)
As previously stated, the sole question here is whether the record contains substantial evidence to support the findings of the district court. We are not disposed to extend this opinion by laboring the evidence. It is sufficient to say there was evidence which, if believed, would warrant a reversal of this case, but having reviewed the record in the light most favorable to the prevailing party below, we are compelled to conclude that from the evidence and reasonable inferences which the compensation commissioner and the district court were entitled to draw, it may not be said that the judgment denying compensation because claimant’s injury did not arise out of and in the course of his employment with respondent finds no support in the evidence, or, stated another way, that the evidence compels an award to the claimant as a matter of law.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal by the husband in a divorce proceeding from an order of the trial court allowing an attorney fee to plaintiff-appellee’s attorney, and the further order of that court overruling defendant’s motion for new trial.
This case was highly contested from the beginning and the fact that appraisers had to be appointed to determine the value of the real estate is indicative of the contentious attitudes of the parties. The record shows that much time was expended on the part of plaintiff’s attorney in the preparation of her case, the trial lasted several days, and a substantial amount of real and personal property was involved. The trial court in its journal entry of judgment showed plaintiff was given a divorce decree from defendant on May 31, 1961, but the case was continued to June 22,1961, to hear argument, to receive suggested findings of fact and conclusions of law, and enter judgment as to custody of the minor children and their support, division of property, alimony, and attorney fees. On June 22, 1961, by mutual agreement the matter was again continued to July 12, 1961. Two respected and prominent members of the Wichita Ear Association were called to testify in regard to their opinion as to the amount a reasonable fee would be in this case based on the work done by plaintiff’s attorney, and under the authority of G. S. 1949, 60-1507, the trial court made an order allowing a fee to W. Jay Esco of the firm of Cooper, Esco & Cooper with provision that payments were to be extended over some period of time. The above statute, by its very clear and plain language, and in order to insure efficient preparation of the wife’s case in a divorce action, vests the district courts with discretion in such matters as ordering expense money. Here the record discloses the amount and kind of property owned by the parties, and their apparent status, which required able counsel in order that the wife would be sure of having efficient preparation of her case.
The trial court stated it had kept detailed notes in regard to the case including items affecting the work of the attorneys and it would be impossible to say that court abused its discretion in allowing the attorney fee it did.
In view of the record before us showing the prolonged and substantial amount of work done by plaintiff’s attorney, we think the matter comes well within the provisions of the above statute and the amount allowed was within the limits of the testimony of the witnesses. Our attention has also been directed to Bennett v. Bennett, 175 Kan. 692, 266 P. 2d 1021, and examination of that case reflects it is in accord with the above.
The trial courts conduct the hearings in these cases, they see the parties and witnesses, they have a better opportunity to ascertain the attitudes of those involved in the lawsuits and that is the proper court to exercise discretion in these matters. We believe the legislature definitely so provided in 60-1507. The fact that a final divorce was not granted because of reconciliation of the parties is not a persuasive argument against allowance of the fee for the reason the trial court had earlier made an announcement of its final intention but wanted to be positive of its findings of fact and conclusions of law before its announcement was reduced to a journal entry of judgment. We are, therefore, constrained to say there was no error in the allowance of the attorney’s fee, or in the order overruling defendant’s motion for new trial.
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The opinion of the court was delivered by
Parker, C. J.:
This is an action for declaratory judgment. The pleadings and the facts stipuláted clearly present the legal question to be determined.
The facts, none of which are disputed, may be stated thus:
On March 12, 1960, the city planning commission of the City of McPherson, Kansas, adopted regulations governing the platting and subdivision of land within its jurisdiction (within three miles of the city limits). The regulations were approved by the board of commissioners of the city.
This controversy grows out of Section IX of the regulations which provide as follows:
“1. Where a proposed public park or playground and other public-use area, as determined by the Planning Commission and the Governing Body, is located in whole or in part within a subdivision, the subdivider shall dedicate lands for such purposes to the City of McPherson — provided, however, that such total dedication (exclusive of public streets, alleys, and pedestrian ways) shall not exceed ten percent of the total gross acreage owned or controlled by the subdivider. Where an area that is specifically designated by the Governing Body for a public park or playground and other public use, exceeds the area equivalent to ten percent of the area of the total acreage owned by the subdivider, the entire area shall be reserved for such use on all subdivision plans and plats; and the acquisition of such additional area in excess of ten percent shall then be secured by the City of McPherson, or arrangements made for its acquisition within a period not to exceed two, three or five years from the date of approval of the Preliminary Plan. The value of such land shall be established by three qualified appraisers, one of whom shall be appointed by the Planning Commission, one by the subdivider, and one of whom shall be mutually agreed upon by the other two.
“2. Where less than ten percent of the total gross area being subdivided is proposed for public parks, playgrounds, or other public-use areas except streets and alleys as designated by the Planning Commission and Governing Body, the subdivider shall dedicate such area that is less than ten percent and, in addition, pay to the City of McPherson a sum of money so that either or both the dedication and the payment equal ten percent of the appraised value of the land before it is subdivided.
“3. The entire sum of money equal to the appraised value of land, comprising an area equivalent to ten percent of the total area of the tract, shall be paid by the owner or subdivider to the City of McPherson in the event that there are not public open spaces required by the Planning Commission and the Governing Body.
“4. Sums of money so received by the City of McPherson shall be placed in a special fund to be known as the public land purchase and improvement fund, and allocated by the Governing Body solely for the purchase of land for public parks or playgrounds and other public areas.”
The Coronado Development Company, Inc., platted a tract of land adjacent to the north boundary limits of the City of McPherson. It complied with all requirements and regulations pertaining to platting of territory except the payment of ten percent of the appraised value of the platted area to the City of McPherson. The city planning commission has not designated any part of the platted area to be used as public parks or playgrounds.
As there are no public open spaces required by the planning commission or the governing body in the subdivision in controversy. Paragraph 3 of Section IX is the only part of the regulation before us for consideration. Paragraph 3 provides that, when no public open spaces are required by the planning commission and the governing body, ten percent of the appraised value of the entire area shall be paid to the city.
The governing body of the city refused to approve the plat unless the ten percent appraised value of the entire area, amounting to $993.75, was paid. The development company claims the regulation is invalid and filed its petition for a declaratory judgment on the issue.
The district court concluded that the regulations were a lawful exercise of the powers conferred and delegated by G. S. 1949, Chapter 12, Article 7, and that the enforcement of such regulations would not deprive plaintiff of any property without due process of law.
Thereupon plaintiff perfected the instant appeal in which it vigorously contends there is no statutory authority for the regulation under dispute; and the defendants, just as vigorously, contend to the contrary.
At the outset it should be noted, and kept in mind, that the controversy, presented by the record as stipulated, must be determined from the law of this state as it existed prior to the adoption of the so-called “Home Rule Amendment” for cities.
Under our decisions the rule of law, that cities exist only by and through statutes and have only such power as the statutes prescribe, is well-established and of long standing. See, e. g., Stolp v. City of Arkansas City, 180 Kan. 197, 200, 303 P. 2d 123.
In the recent case of State, ex rel., v. City of Kansas City, 181 Kan. 870, 317 P. 2d 806, with reference to Syl. ¶ 2 of the opinion, it is said:
“Cities are creations of the legislature and can exercise only the powers conferred by law; they take no power by implication and the only powers they acquire in addition to those expressly granted are those necessary to make effective the power expressly conferred. (State, ex rel., v. City of Topeka, supra; State, ex rel., v. City of Topeka, 176 Kan. 240, 270 P. 2d 270; Kansas Power & Light Co. v. City of Great Bend, 172 Kan. 126, 238 P. 2d 544.)” (p. 874.)
It is necessary that we examine the statutes to determine if authority exists for the enactment of the regulation in dispute. G. S. 1949, Chapter 12, Article 7, provides for planning and zoning by city planning commissions and governmental bodies. G. S. 1949, 12-705 provides that all plans, plats or replats of land within the city or within three miles of the city limits shall be submitted to the city planning commission and the governing body of the city for consideration. The same section provides further:
“. . . And no such plat or replat or dedication or deed of street or public way shall be filed with the register of deeds as provided by law until such plat or replat or dedication or deed shall have endorsed on it the fact that it has first been submitted to the city planning commission and by the city planning commission to the governing body of such city and by such governing body duly approved. Before exercising the powers referred to above, the city planning commission shall adopt regulations governing the subdivision of land within its jurisdiction. Such regulations may provide for the proper area of streets in relation to other existing or planned streets and to the mapped plan for adequate and convenient open spaces for traffic, utilities, access of fire-fighting apparatus, recreation, light, and air, and for the avoidance of congestion of population, including minimum width and area of lots.”
The foregoing' statute specifically grants authority to make regulations for convenient open spaces for recreation (parks and playgrounds) in accordance with the mapped plan. It would appear to go no further. It is not authority for a regulation requiring the developer to pay ten percent of the appraised value of the platted area to the city in the event that — as is here stipulated and conceded — there are not public open spaces required by the planning commission and the governing body, within the subdivision, by any plan, mapped or otherwise. The fact that the payment is to be placed in a special fund solely for the purchase of land for public parks or playgrounds and other public areas does not add to the city’s authority under the statute. Indeed, a careful analysis of the statute compels a conclusion there is nothing in any of its provisions authorizing the assessment of money as a revenue measure for other public areas.
Moreover, there is every reason to apply the rule that cities can exercise only the power conferred by law and take no power by implication, when considering a statute granting jurisdiction beyond the city limits.
Although this court has not had occasion to pass on this specific question the courts of other states dealing with similar regulations have held such regulations to be beyond the scope of the statutory authority and therefore void. (See Haugen v. Gleason, _ Or. _, 359 P. 2d 108; Rosen v. Village of Downers Grove, 19 Ill. 2d 448, 167 N. E. 2d 230; Kelber v. City of Upland, 155 Cal. App. 2d 631, 318 P. 2d 561.)
The regulation, Paragraph 3 of Section IX, is beyond the scope of the enabling statutes (G. S. 1949, 12-705). The exaction of cash payments was a material departure from the statutory authorization and not reasonably related to the regulatory power delegated to the City. It necessarily follows the trial court erred in finding for the defendants and that its judgment must be reversed.
It is so ordered. | [
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The opinion of the court was delivered by
Jackson, J.:
This is an appeal from an action to recover taxes paid under protest. The only question posed to us is whether a transcript of the testimony taken before the county commissioners sitting as the county board of equalization was admissible in evidence.
The only assignment of error is the overruling of the motion for new trial based upon the exclusion of the above evidence. But perhaps a short account of how the action arose will be helpful.
Plaintiff is the owner of a considerable block of good bluestem pasture and farm land in Morris county. He asserts that in the year 1958, plaintiff’s land was assessed for at least 35 percent of its market value while other land in the same taxing district was assessed at not more than from 15 to 25 percent of its market value.
Plaintiff first took this matter before the county commissioners sitting as the board of equalization, as outlined above, sometime after May 1, 1958. Before December 20, 1958, plaintiff paid the first half of his 1958 tax and protested the sum of $414.13 which he claimed to be the amount of over-assessment. Within proper time under G. S. 1949, 79-2005, the plaintiff filed his application before the State Board of Tax Appeals asking for a refund of the protested taxes. This the state board refused to do on June 11, 1959, whereupon plaintiff still following section 79-2005, paid the last half of his taxes for 1958 under like protest and on July 2, 1959, filed the action from which this appeal is taken. Plaintiff sought to recover the alleged over-assessment both as to the first half and last half of the 1958 tax.
During the hearing of the case, the plaintiff offered a transcript of the evidence taken by a reporter employed by plaintiff at the hearing before the county board of equalization. This transcript contained the testimony of several witnesses who testified as tax experts.
In arguing the question as to the admissibility of the transcript in evidence, plaintiff seems to assume that this is a review of or an appeal from the hearing of the county board and cites the cases Brinkley v. Hassig, 130 Kan. 874, 289 Pac. 64; Capland v. Board of Dental Examiners, 149 Kan. 352, 87 P. 2d 597; and Marks v. Frantz, 183 Kan. 47, 325 P. 2d 368. All of these cases involve suits to enjoin a particular board of the healing art which had granted and had or was threatening to revoke plaintiff’s license in the particular art after a hearing before the board. Of course, the proceedings before the board in those cases were pertinent and important to the question of whether the plaintiff’s license could be or had been lawfully revoked.
The action at bar is not one to question the proceedings of the county board, but an independent action to recover taxes paid under protest. This action is not even one to review the proceedings of the State Board of Tax Appeals. (Union Pacific Railroad Co. v. Sloan, 188 Kan. 231, 361 P. 2d 889; City of Kansas City v. Jones & Laughlin Steel Corp., 187 Kan. 701, 360 P. 2d 29.)
This is an independent action in which plaintiff had the burden of introducing evidence that his property had been over assessed and that he was justified in protesting his tax.
Plaintiff has made no attempt to offer the transcript herein involved as a transcript G. S. 1949, 20-910 (a) or as a deposition G. S. 1949, 60-2838, et seq., nor did plaintiff claim that he could not produce the tax experts in person.
We fail to see any error upon the part of the trial judge in refusing to allow the admission in evidence of the transcript. The orders appealed from must be affirmed. It is so ordered. | [
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The opinion of the court was delivered by
Robb, J.:
This is an appeal from the conviction of defendant of the crime of first degree murder with a recommendation of life imprisonment under the verdict of the jury and a sentence of life imprisonment by the trial court based upon that verdict.
Since there is no question concerning the pleadings, the preliminary hearing, or the appointment of counsel for defendant by the trial court, we shall omit those details but will give a brief statement of the facts.
At 4:30 a. m. on November 13, 1960, defendant entered his mother’s home at 1238 Walker avenue, Kansas City, Kansas, where defendant, his wife Shirley, and their two children were living. Defendant took a .22 caliber pistol from his belt and shot his wife six times, once in the neck and the other five in the area of the head, from which wounds Shirley died. Defendant was apprehended in Kansas City, Missouri, he waived extradition, and was returned to Kansas for trial.
On March 14, 1961, a jury was selected and sworn and it was determined some alternate jurors would be selected. At that time one of the original twelve jurors advised the court of certain facts he felt would make it impossible for him to render defendant a fair and impartial verdict. In its formal journal entry of judgment the trial court quoted from the docket sheet of March 14, 1961, in part as follows:
“ ‘Upon inquiry the court found that it would be impossible for the defendant to receive a fair trial from the sworn jury and at the request of deft, the court declared a mis-trial and re-set the case for trial for May 8, 1961
and the journal entry of judgment then continued:
“That the defendant, through his counsel, C. Howard Washburn, does not agree that he or the defendant requested that the court declare a mis-trial.”
The trial court declared a mistrial, discharged the entire panel of jurors, and set the case for a later date. The parties and their counsel appeared on May 15, 1961, another jury was selected and trial was had. That jury found defendant guilty of murder in the first degree and recommended punishment by confinement and hard labor in the state penitentiary for life. Sentence was accordingly imposed by the trial court. Hence, this appeal.
The first and most important question raised is whether defendant was placed in double jeopardy by the trial commencing on May 15, 1961, after the previous declaring of a mistrial and discharge of the jury on March 14, 1961.
Defendant contends, and the record supports the contention, that he did not request a mistrial. That when the trial court retired to the court’s chambers with counsel and the defendant, along with the juror who had made the statement he could not render a fair and impartial verdict, the court stated it did not think either defendant or the state of Kansas would get a fair trial for that reason, as shown in the journal entry of judgment. The jury was discharged and defendant was later tried by another jury panel.
This is not the first time such an incident has taken place. The authorities are numerous and are in general accord with the attitude of appellate courts expressed in the following cases where such questions arose in a trial court.
In State v. Hansford, 76 Kan. 678, 92 Pac. 551, the case had been partially tried by the trial court when it was discovered that something said in the trial, or that had happened during the trial, caused a juror to become prejudiced. Even though part of the evidence had been submitted the trial was stopped, a mistrial declared, and the jury discharged. This court held the defendant would not be deemed to have been twice put in jeopardy for the same offense. (Syl. ¶ 1.) This rule was somewhat expanded in the opinion in the Hansford case by a quotation from the syllabus in Thompson v. United States, 155 U. S. 271, 15 S. Ct. 73, 39 L. Ed. 146, as follows:
“ . . courts of justice are invested with authority to discharge a jury from giving any verdict whenever in their opinion, taking all the circumstances into consideration, there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated, and to order a trial by another jury; and a defendant is not thereby twice put in jeopardy.’ ” (p. 684.)
Our attention is next directed to Brock v. North Carolina, 344 U. S. 424, 73 S. Ct. 349, 97 L. Ed. 456, where two defendants, Jim Cook and Elmer Matthews, were tried and found guilty of assault with a deadly weapon. Before final judgments were pronounced on their convictions, petitioner Brock was also placed on trial in a criminal prosecution. Cook and Matthews were called by the state as witnesses to corroborate testimony of other witnesses but they refused to answer questions because the answers might tend to incriminate them. The state moved to have a juror withdrawn and a mistrial ordered. The petitioner objected. The North Carolina Supreme Court later affirmed the convictions of Cook and Matthews. A second jury was impaneled to try Brock. His objections to trial were overruled, Cook testified as a witness for the state, and Brock was found guilty and sentenced. He appealed to the North Carolina Supreme Court, which affirmed his conviction and sentence. Certiorari was then granted by the Supreme Court of the United States and in the opinion affirming the court below the following language was used:
“This Court has long favored the rule of discretion in the trial judge to declare a mistrial and to require another panel to try the defendant if the ends of justice will be best served. Wade v. Hunter, 336 U. S. 684; Thompson v. United States, 155 U. S. 271, 273-274. As was said in Wade v. Hunter, supra, p. 690, ‘a trial can be discontinued when particular circumstances manifest a necessity for so doing, and when failure to discontinue would defeat the ends of justice.’ Justice to either or both parties may indicate to the wise discretion of the trial judge that he declare a mistrial and require the defendant to stand trial before another jury. As in all cases involving what is or is not due process, so in this case, no hard and fast rule can be laid down. The pattern of due process is picked out in the facts and circumstances of each case.” (pp. 427, 428.)
The general rule, especially in our American courts, is that the decision as to whether there is a real, absolute, and unequivocal necessity for discharge of a jury in order that the ends of justice will not be defeated is left to the sound discretion of the trial court. In other words, the general modern rule is that a court may discharge a jury without working an acquittal of the defendant in any case where the ends of justice, under the circumstances, would otherwise be defeated. In so doing the trial court should exercise sound discretion and the greatest caution, and this is especially true in capital cases. (15 Am. Jur., Criminal Law, § 406, pp. 75-76; 22 C. J. S., Criminal Law, §§258, 259, pp. 669-679.) In the last cited work it is stated:
“Disqualification of juror. Where the jury are discharged after the trial has begun, by reason of the fact that a juror has become disqualified . there is neither an acquittal nor former jeopardy. . . .” (pp. 677, 678.)
The above circumstance was the one upon which the trial court in our present case exercised its judicial discretion when it found a sufficient degree of necessity to require that a mistrial be declared and the jury discharged because neither the defendant nor the state would be able to receive a fair trial from that particular jury panel. Under such circumstances ordinary and established legal procedures were guaranteed not only to the defendant but also to the state in order that the ends of justice would not be defeated. Thus the trial court did not err in overruling defendant’s motion for discharge in the form of a plea in bar.
Defendant’s next contention is he was not allowed to show aggravating circumstances which surrounded his married life with the deceased, but the record reflects the opposite. Even in the statement introduced at the trial which defendant had given to officers at 7:05 a. m. on November 13, 1960, he made statements in regard to deceased’s threats to kill him, the use of knives and scissors, and how she had “loused [him] up” with his employers. In addition the trial court placed practically no limits on the testimony of defendant’s witness, Morton Jacobs, M. D., specializing in psychiatry, who was allowed to testify in behalf of defendant, in any of the categories he chose, as to the defendant, the deceased, and their turbulent marital life. Therefore, the trial court cannot be said to have committed error in its rulings on the admission of evidence, and the same is true of the next two questions raised by defendant.
In both civil and criminal appeals under the rules of this court as revised on May 1, 1959, and G. S. 1949, 60-3312, it is the duty of the appellant (here defendant) to file an abstract containing a synopsis of so much of the pleadings, records, events, and proceedings in tire case as appellant'deems necessary for the consideration of the court. From the record before us defendant’s next point is that the court erred in admitting testimony of oral statements he made to arresting officers and the officers who brought him to Kansas from Missouri but these statements were properly admitted because they were made during ordinary conversation, they were voluntary, and were not in response to any questions put to him by such officers. These matters were considered and settled in State v. Germany, 173 Kan. 214, 224, 245 P. 2d 981, an appeal from a conviction of murder in the first degree and a death sentence in which a written statement and various oral statements of defendant against his interests were held to have been properly admitted. Also in State v. Stewart, 179 Kan. 445, 454, 296 P. 2d 1071, where defendant was charged with murder in the first degree and convicted of murder in the second degree, and objection was made to admission of remarks defendant had made to officers and bystanders, such statements were held to be only admissions against interest. Finally, in State v. Stubbs, 186 Kan. 266, 272, 349 P. 2d 936, defendant was likewise charged with first degree murder and convicted of second degree murder, and it was said the trial court had been particularly careful to determine that oral statements and a subsequent written statement of defendant had been voluntarily given.
Defendant’s next contention that counsel was not appointed by the trial court to represent him on this appeal is unfounded. (G. S. 1949, 62-1304.)
The trial court gave a total of forty instructions to the jury and from a careful consideration of all of them, we conclude they were fair to the defendant and further, we find no merit in defendant’s contention the trial court erred in failing to instruct on first, second, and fourth degree manslaughter under State v. Palmer, 173 Kan. 560, 251 P. 2d 225. A reading of the facts of that case shows it presented an entirely different situation from this one. When this defendant stood over his wife at such close range with a loaded pistol and proceeded to shoot her six times, once in the neck and five in the area of the head, he cannot be heard to claim that the killing was without a design to effect death, or that any other element of manslaughter in any degree was present. (G. S. 1949, 21-407 to 21-419, incl.)
In a final answer to this objection to the trial court’s instructions, we may say we think the trial court in its instructions went further in this case in favor of defendant than is generally the situation in such criminal prosecutions.
Defendant’s next contention of misconduct of the jury because one of the jurors fell asleep is answered in State v. Jones, 187 Kan. 496, 499, 357 P. 2d 760. There a juror was heard to snore twice and a short recess was declared to allow him to get awake but defendant there, as here, did not show how his substantial rights were thereby prejudiced.
Defendant’s remaining claims of error either are not supported by the record or do not affect his substantial rights. He has not by any of his claims of error sustained the burden imposed upon him to show that the trial court committed error which prejudicially affected his substantial rights. We think the trial court was exceedingly careful and patient in seeing that defendant had a full, fair and complete trial and there is nothing reflected in the record before us upon which a reversal can be based.
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for damages sustained by the plaintiff while water skiing alleged to have been caused by the negligence of the defendant in operating a motor boat. The case has previously been to this court on appeal in Allman v. Bird, 186 Kan. 802, 353 P. 2d 216, on a question of pleading. The instant appeal (still at the pleading stage of the case) is from an order of the trial court overruling the plaintiff’s motion to strike the defense of assumption of risk from the defendant’s answer, and also from an order of the trial court overruling plaintiff’s motion to make such allegations in the answer more definite and certain.
The controlling question is whether the plaintiff has an appeal-able order.
The plaintiff (appellant) by her second amended petition filed on June 14, 1960, after having successfully appealed to this court in Case No. 41,903, Allman v. Bird, supra, seeks to recover damages from the defendant (appellee) for injuries she received in water skiing while the defendant was operating a motor boat in the Lake of the Ozarks, near Warsaw, Missouri. In her first count re covery is sought on the ground of negligence, specifying the various acts. By the second count she seeks recovery of punitive or exemplary damages on the ground of gross and wanton negligence. By the third count she seeks damages on behalf of her husband for the loss of her services in operating a beach resort on the Lake of the Ozarks, near Warsaw, Missouri.
The trial court required the defendant to make his original answer filed more definite and certain by setting forth the facts constituting certain alleged affirmative defenses. In his amended answer the defendant made certain admissions, denied generally the rest of the allegations in the plaintiff’s petition, alleged that the plaintiff’s cause of action was governed by the laws of the state of Missouri, pleaded specific facts which he alleged constituted contributory negligence, and pleaded the affirmative defense of assumption of risk as follows:
“VI. Defendant further answering herein alleges the fact to be that Plaintiff had full knowledge of the hazards incident to engaging in the sport of skiing, particularly the hazards encountered in ‘skiing double,’ and the employment of double ski tow ropes of different lengths.
“That nothwithstanding said knowledge upon the part of said plaintiff, Plaintiff voluntarily engaged in said sport and voluntarily assumed the risk and hazards incident to engaging in said sport, and the dangerous procedure used by Plaintiff at said time and place, in engaging in said sport.”
By appropriate allegations the answer joined issues and set up defenses to each of the other counts in the petition.
Thereupon the plaintiff moved to strike the above quoted allegations from the answer for the reason that they did not state facts sufficient to constitute defenses to counts one and three respectively. Appeal has been perfected from the order of the trial court overruling this motion, and from an order overruling the plaintiff’s motion to make the above quoted allegations more definite and certain by describing in detail the “hazards” mentioned in said paragraphs and the “dangerous procedure” claimed by the defendant to have been used by the plaintiff.
It is apparent the appellant herein was attempting to force the appellee to plead in his answer whether the plaintiff assumed the risk of the defendants acts of negligence. (Page v. City of Fayette [1938], 233 Mo. App. 37, 116 S. W. 2d 578; Hathaway v. Evans [Mo. App., 1950] 235 S. W. 2d 407; and see, Fred Harvey Corporation v. Mateas [U. S. C. A., 9th Cir., 1948], 170 F. 2d 612; and Isaacson v. Jones [U. S. C. A., 9th Cir., 1954], 216 F. 2d 599.)
Motions to strike and to make definite and certain rest in the sound discretion of the trial court, and rulings thereon are not appealable under G. S. 1949, 60-3302 and 60-3303, unless they affect a substantial right and in effect determine the action. (Axe v. Wilson, 150 Kan. 794, 96 P. 2d 880; Lee v. Johnson, 186 Kan. 460, 350 P. 2d 772; and Klepikow v. Wilson, 189 Kan. 66, 366 P. 2d 800.)
Although an independent appeal does not lie from an order overruling a motion to make definite and certain, such an order is reviewable under the provisions of G. S. 1959 Supp., 60-3314a, notwithstanding the fact that such order may have been made more than two months before an appeal therefrom is taken, provided an appeal by the aggrieved party is timely perfected from a judgment or some other appealable order. (Standard Steel Works v. Crutcher-Rolfs-Cummings, Inc., 176 Kan. 121, 269 P. 2d 402; and First National Bank of Topeka v. United Telephone Ass’n, 187 Kan. 29, 353 P. 2d 963.) Our inquiry must therefore be directed to the order of the trial court overruling the appellant’s motion to strike the defense of assumption of risk from the appellee’s answer.
The appellant takes the position that assumption of risk is an affirmative defense, and that the facts constituting the defense must be pleaded as fully as a cause of action in a petition. (38 Am. Jur., Negligence, § 279, p. 968; and 41 Am. Jur., Pleading, § 157, p. 402.) She argues the appellee has failed to plead facts sufficient to constitute the defense of assumption of risk in his answer, and the order of the trial court overruling her motion to strike this defense is tantamount to a ruling on a demurrer. (Citing, In re Estate of Shirk, 188 Kan. 513, 363 P. 2d 461; Johnson v. Killion, 179 Kan. 571, 297 P. 2d 177; and Collins v. Richardson, 168 Kan. 203, 212 P. 2d 302.)
While it may be conceded there is some inconsistency in our decisions, the statement has frequently been made that under the established rule of this jurisdiction rulings on motions to strike, regardless whether such motions have been sustained or overruled, rest in the sound discretion of the trial court and are not appealable under G. S. 1949, 60-3302 and 60-3303, unless they are final, affect a substantial right, or in effect determine the action. (Nausley v. Nausley, 181 Kan. 543, 545, 313 P. 2d 302; In re Estate of Sims, 182 Kan. 374, 321 P. 2d 185; Lee v. Johnson, supra; and Wescoat v. State Highway Commission, 187 Kan. 228, 356 P. 2d 841; and the many cases cited in these decisions.)
Here the order of the trial court overruling the appellant’s motion to strike the foregoing quoted paragraphs from the answer is not a final order within the contemplation of our code; it does not affect a substantial right; nor does it in effect determine the action.
The appellant’s cause of action remains in tact; none of her rights to pursue her remedy under the allegations of her petition has been taken away; there is nothing final concerning the defense of assumption of risk pleaded by way of answer. In due time the appellant will have her say in court. The doctrine of assumed risk pleaded by way of defense does not deny the appellant any right of trial or right to be heard on the merits of her case. Evidence presented by the appellee at the trial of the case concerning the defense of assumed risk, if improper, may be challenged by objection. Should the question still remain open after all the evidence has been presented, counsel for the respective parties will be permitted to present their views of the law relative to instructions for the jury, and the matter will again receive the attention of the trial court.
The appeal is dismissed. | [
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The opinion of the court was delivered by
Fatzer, J.:
This appeal involves the interpretation of the Employment Security Law (G. S. 1949, 44-701, et seq., as amended) as to whether the five individual appellee-claimants were “unemployed” as that term is defined in G. S. 1961 Supp., 44-703 (m), for the weeks for which they claimed unemployment compensation benefits.
Unless otherwise designated, all subsequent reference to the Employment Security Law found in G. S. 1949, 44-701, et seq., as amended, is to G. S. 1961 Supplement.
The facts are not in dispute. Services of the five employees were terminated on November 14, 1959, without fault on their part when the telephone exchange at Coffeyville was converted from manual equipment to dial. When conversion occurred, there was not enough work in the exchange to warrant retaining any of them in the service of the company.
The collective bargaining agreement then in effect between the company and the Communication Workers of America, of which the claimants were members, provided for payment of a termination allowance to persons laid off or retired, payable in a lump sum upon termination, based upon wage history and the period of employment. The employees here involved received two or three weeks of termination allowance based upon the formula of the agreement. Provision was also made for mitigation or deferment of a part of the employer’s obligation if it re-employed a person within a lesser number of weeks than that number which measured the termination allowance, but the terminated person was not on standby status and was to treat the allowance as absolute and final.
Upon being terminated, the employees filed individual claims for unemployment compensation benefits (44-709 [a]), which were consolidated for hearing before an examiner (44-709 [b]) who found that each claimant was eligible for unemployment benefits irrespective of the payment of a termination allowance. Following statutory procedure, the company appealed (44-709 [d] [/]) and the claims were affirmed by the examiner and by the Employment Security Board of Review. Upon judicial review (44-709 [h]), the district court adopted the findings of fact and conclusions of law of the referee and the board, and rendered judgment that the termination allowance paid to each of the claimants was paid for past services rendered and not with respect to the weeks subsequent to termination of employment and that no wages were payable to claimants with respect to the weeks following their termination for which unemployment compensation was claimed. The appeal is from the judgment finding each of the claimants eligible for unemployment compensation benefits.
The company contends that under the agreement and the law, an employee may not receive both a termination allowance and unemployment benefits for the period following termination equal to the number of weeks upon which the termination payment was computed. Citing one case as an example, Gwendolyn Price received an equivalent of three weeks wages in termination allowance; the company contends she cannot lawfully receive three weeks of unemployment compensation benefits for the three weeks following termination.
The individual appellees and the Employment Security Board of Review contend that since the termination allowances paid to the claimants were computed on a past service base and paid in a lump sum, there is no logical way by which such payments may be said to have been made “with respect to” any specific number of weeks following termination; that the claimants were unemployed following termination, and that they were entitled to unemployment compensation benefits.
The condition precedent to eligibility under the Employment Security Law is that a claimant be “unemployed.” That term is defined in 44-703(m) as follows:
“An individual shall be deemed ‘unemployed’ with respect to any week during which he performs no services and with respect to which no wages are payable to him. . . .”
The terms “performs no services” and “respect to which no wages are payable” are used in the conjunctive, and to be eligible for benefits both conditions must exist. The terms are not to be confused; they mean separate things with respect to the application of the statute.
The parties are agreed that the claimants performed no services for the company following their termination on November 14, 1959; that they were free to locate work elsewhere, but they had no employment during subsequent weeks. They are also agreed that the lump-sum payments received by the claimants as “termination allowances” were wages as defined in 44-703 (o). Thus, it is clear the claimants met the first part of the conjunctive requirement, and they met the second part and were entitled to full benefits, if the termination allowances were not wages “with respect to” the weeks following termination for which unemployment compensation is claimed.
In support of its contention that it should not be compelled to provide duplicate benefits to the claimants, the company points out that both unemployment compensation benefits and termination allowances are financed by the company, and it bases its argument upon two premises. First, it was the intent of the contracting parties that, as manifested by the terms of the agreement, the termination allowances were to forestall “economic insecurity” which were to be in lieu of unemployment benefits “with respect to” the number of weeks upon which the termination allowances were calculated, and that so long as the termination pay mitigated against the “crushing forces” of unemployment, such allowances were to be considered as wages earned in the past to be enjoyed in the future, when the contractual conditions precedent had been met, although conceding that its agreement with the union made no allocation of wages (termination allowances) to any specific week, either before or after termination, and second, that the statute itself, and the legislative policy which produced its enactment, does not establish, nor did it intend to establish, a principle that the unemployed should receive a “bonus” for being terminated, or receive double payments or treatment superior to those who are still retained in service; that the statute is best served by a construction which does not permit dual benefits, and to so hold, would discriminate between an employer who provides a termination allowance by compelling duplicate payments, while other employers who do not provide for such an allowance would only be required to make a single payment, and that the overall effect of sustaining the judgment of the district court would be to grant a windfall to the terminated employees, and produce an inequitable and unjust penalty against the company.
It must be borne in mind that in order to receive a termination allowance, definite services must have been performed. In no sense of the word is a termination allowance a mere gratuity. The prerequisite to qualifying for such an allowance is the performance of services, which entails regular employment, for a definite number of years, and so forth, all of which were provided for in the employees’ contractual rights to receive such payments. Hence, we inquire: Does the agreement show any specific intent by the parties to avoid payment of duplicate benefits in the form of termination allowances and unemployment compensation benefits? The company contends that dual benefits were not contemplated by reason of the fact that had such an unusual result been expected, the agreement would have expressly provided that such payments would be permissible, but in the absence of such stipulation, the reasonable interpretation of the agreement is that neither of the parties contemplated double payments; further, that the agreement provided if an employee received a termination allowance and was then rehired and the number of weeks since the date of layoff was less than the number of weeks upon which the allowance was based, the excess must be returned to the company; therefore, the agreement clearly contemplated that die termination allowances were “with respect to” the time following termination.
We are of the opinion the company’s contentions cannot be sustained. There is a distinction to be made between the status of an employee who is terminated and then rehired and is required to remit the excess of his termination allowance, and one who is terminated by a severance of the employer-employee relationship and makes claim for unemployment compensation benefits. The former is governed by the private contractual rights of the parties, and the latter is governed by the provisions of the statute. An eligible individual claiming benefits under the statute is entitled to a liberal interpretation of the law, and the right to receive such benefits is determined by the provisions of the statute. (Erickson v. General Motors Corporation, 177 Kan. 90, 276 P. 2d 376; Clark v. Board of Review Employment Security Division, 187 Kan. 695, 698, 359 P. 2d 856.) Furthermore, need has not been made a prerequisite to eligibility (44-705), particularly with respect to a terminated employee’s former pay status. It has been held that double payment voluntarily made by an employer is not against public policy and does not militate against the scheme and plan of unemployment compensation. (Meakins v. Huiet, 100 Ga. App. 557, 112 S. E. 2d 167.) The argument that to allow the claimants to receive benefits under these circumstances is to penalize the company by imposing a double liability under the agreement, is one which more properly should be addressed to the legislature than to the court. (Ackerson v. Western Union Telegraph Co., 234 Minn. 271, 48 N. W. 2d 338, 25 A. L. R. 2d 1063.)
Nor are we impressed with the claim that because the agreement did not expressly provide that dual payments would be permissible, the reasonable inference in the absence of such stipulation was that neither of the parties contemplated double payment. If the agreement intended to avoid duplicity of payment, it would seem reasonable that it contain express provisions as to the allocation of the termination pay and for the continuation of the employer-employee relationship, in some form, during the period such pay was being allocated to weeks following termination. Assuming it was permissible under the statute for the company to enter into an agreement which contained contractual language directing that termination allowances be applied to weeks after termination and designating the weeks to which they shall be applied, the agreement here involved fails completely to make such provisions.
In the absence of such provisions it may not be presumed that the contracting parties meant to pay wages for no services, and allocate such payments to a period after termination. Generally speaking, wages are tied to the week of work and not to the week in which they are paid. In order to associate pay with specific weeks, there must be some connection between the two. The termination allowances here involved were in no way related to or dependent upon the claimants’ employment status after termination. Under the company’s own contention, there was no allocation of wages to any specific weeks other than an arbitrary one which it selected as being the number of weeks immediately after termination equivalent to the number of weeks upon which the total amount of termination allowance was based.
In view of the foregoing, we conclude the lump-sum payments that the claimants received were payable “with respect to” the period before their employment ceased. The very right to termination allowances is predicated on the services of a regular employee being “terminated.” That is, the employer-employee relationship has to end before one can qualify for a termination allowance, and in the instant case, the claimants, not being rehired, were “unemployed” after they were terminated on November 14, 1959. All of the factors that went into the computation by which the amounts were fixed related to what had happened in the past. All were retrospective. The payments were not fixed with a view to the actual or probable duration of claimants’ unemployment; they would not have been diminished if the claimants had found jobs the next day, and they would not have been increased no matter how long the claimants remained unemployed. Rather, the amounts were fixed on the basis of one week’s pay for each completed year of net credited service as employees, and such amounts were paid only because the claimants’ past records were approved by the company.
It is our opinion that the termination allowances received correlated with the claimant’s past performances and not with their future conduct or needs. They were based wholly upon, and thus were payable “with respect to” the period before the claimants’ employment terminated and not any period thereafter. We hold, therefore, that the claimants were “unemployed” as that term is used in 44-703 (m) for all weeks for which they claimed unemployment compensation benefits.
The weight of authority in the United States supports the conclusion just announced. See Meakins v. Huiet, supra; Ackerson v. Western Union Telegraph Co., supra; Western Electric Co. v. Hussey, 35 N. J. 250, 172 A. 2d 645; Western Union Tel. Co. v. Texas Employment Comn (Tex.) 243 S. W. 2d 217, and The Kroger Co. v. Blumenthal, 13 Ill. 2d 222, 148 N. E. 2d 734. Where a claimant is disqualified for dismissal payments or termination allowances, such is done by specific language in the statute in nearly all instances. (Arkansas Statutes 1947 Annotated, § 81-1106 [f]; Iowa Code Annotated, § 96.5 5a; Revised Statutes of Maine, Ch. 29, § 15 V. A.; Revised Codes of Montana, § 87-106 [e] [1]; Revised Statutes of Nebraska, § 48-628 [e].) See, also, Kalen v. Director of the Division of Employment Security, 334 Mass. 503, 136 N. E. 2d 257, and Globe-Democrat Pub. Co. v. Industrial Commission, (Mo.) 301 S. W. 2d 846.
The company cites and relies primarily upon Bradshaw v. California Emp. Stab. Com., 46 C. 2d 608, 297 P. 2d 970, and Carter v. Board of Review Under Okl. Emp. Sec. Act, (Okla.) 323 P. 2d 362. No attempt will be made to analyze those cases since they represent the minority view on the question. The case of Erickson v. General Motors Corporation, supra, held that “holiday pay” was wages which was “payable to” the claimant “with respect to” the week ending December 29, 1951, but there the claimants remained in the employment of the company. The company here suggests that all that need be done to apply the Erickson case to the instant case is to substitute the word “termination” for “holiday” and the result would be as it urges. We do not agree. It is obvious the two situations are not comparable.
But, there is another and compelling reason why the judgment of the district court must be affirmed. When originally enacted in 1937 (Laws of 1937, Ch. 255, § 6 [e], [1], [2]) the statute provided, among other things, disqualifications for any week with respect to which the claimant had received remuneration in the form of (1) payment in lieu of notice; or so-called dismissal wages, and (2) for temporary partial disability under the Workmen’s Compensation Law of any state or any similar law of the United States.
In 1941 the legislature (Laws of 1941, Ch. 264, § 4) removed that provision and subsequent thereto the Division of Unemployment Security held that termination allowances would not render claimants ineligible for benefits, and appropriate administrative directives were issued entitled “Benefit Operations Manual.” The pertinent provision reads:
“911.33 Termination Pay. Such payments may be received by workers following separation from their employment. They are variously known as ‘Severance Pay,’ ‘Termination Pay,’ ‘Separation Pay’ or ‘Pay in Lieu of Notice.’ Since a condition for the receipt of such payments is a severance from employment, the employer-employee relationship has ended. Since the relationship is ended, we cannot consider that Termination Pay is assignable to any period following the date of separation. It cannot, therefore, affect Benefit eligibility for any period subsequent to the separation.”
It has been repeatedly held that where statutory enactments or amendments thereto create a situation where official duties which must be performed which are not clearly defined or prescribed in detail, the operative interpretation given thereto by the officers and official boards whose duties are to carry the legislative policy into effect is helpful, and may be entitled to controlling significance, when the scope and limitations of such powers must be determined in judicial proceedings. (Harrison v. Benefit Society, 61 Kan. 134, 59 Pac. 266; Cavlovic v. Baker et al., 118 Kan. 412, 415, 416, 234 Pac. 1009; State, ex rel., v. State Highway Comm., 132 Kan. 327, 337, 295 Pac. 986.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Schroeder, J.:
This is an action for damages resulting from the alleged misrepresentation of an automobile as new by the defendant dealer to the plaintiff buyer when, in fact, the automobile was a used current model with low mileage. Appeal has been duly perfected by the defendant from a verdict and judgment for the plaintiff in the sum of $1,000 and costs, specifying various trial errors.
The questions presented concern the admission of evidence and instructions as to the measure of damages.
In May, 1958, the appellant, Schoonover Motors, Inc., transferred its Lincoln-Mercury franchise to Bob Nowlin Motors. The appellee, Bernard F. Perry, was aware that Schoonover was selling the franchise.
In the early part of June, 1958, the appellee approached Don Cummings, a used car salesman of Schoonover’s, at the used car lot located across the street from the new car showroom. It was closing time and the appellee and the salesman looked at a 1958 red and white Mercury automobile, the subject of this action, through the showroom window.
The next morning the appellee went back to Schoonover’s and looked the car over on the showroom floor and discussed buying the automobile. A few days later the appellee traded a 1955 Chevrolet for the Mercury. The closing papers indicated a cash sale price of $4,247 for the Mercury with an allowance of $2,310 to the appellee for the Chevrolet.
The evidence established that the Mercury was, in fact, a used automobile which had previously been sold in December, 1957, to Charles Hall who operated a used car lot. About April 5, 1958, he traded the Mercury in on another automobile.
The appellant admits that the Mercury automobile was a low mileage current model, but contends that it was sold in the ordinary course of business as such, and in accordance with the practice of the trade was financed as a "new” automobile.
The appellee claimed that the automobile was represented to him as new and the record discloses sufficient evidence to support a finding by the jury that the automobile was represented to be new. The appellee so testified and the used car salesman, Don Cummings, who sold the automobile to the appellee, testified, he was told the automobile was new, and upon making the sale received a commission of $50 which was the customary new car commission. He further testified:
“I recall a conversation between Mr. Ross Schoonover and Bernard Perry. I think it took place prior to my delivering the car but that is just a guess. Mr. Perry asked Mr. Schoonover about the warranty and he said it was a new car, he would personally guarantee it, that being a new car that Mr. Nowlin would take care of it, him being now the new Mercury dealer.”
The appellee alleged in his petition that the Mercury automobile in question was not worth the sale price of $4,247, but was actually worth $3,280; that he financed part of the purchase price and paid $439.53 in interest and finance charges upon the unpaid principal balance of said sale price; that had the automobile been sold by the appellant for its actual worth, the interest and finance charges upon the unpaid principal balance would have been in the amount of $212.39; and that the appellee incurred expenses in the amount of $80.04 for repairs which would not have been necessary had the automobile been as represented by the appellant. In addition to actual damages of $1,273.68, the appellee sought punitive damages in the sum of $1,000 by reason of the false, fraudulent and malicious representations and statements of the appellant, and costs of the action.
The record does not disclose that any special questions were submitted to the jury which returned a verdict against the appellant in the sum of $1,000. The trial court thereupon entered judgment for this amount and costs.
The appellant first complains of the admission into evidence of a document entitled “Purchase Money Mortgage” dated tihe 7th day of June, 1958. This document describes the automobile in question and specifically indicates the automobile to be “new.” The document was signed by the appellee and R. S. Schoonover as President of the appellant corporation.
The appellee admitted upon presenting this exhibit for acceptance in evidence that he did not finance the purchase of this automobile with the appellant, but arranged for independent financing with Mr. Wenger of Pacific Finance. Thereupon the appellant objected to its admission in evidence. The acceptance of this document in evidence is specified as error.
The document was presented by the appellee as additional evidence solely for the purpose of showing that the automobile was represented to be new. For this purpose the exhibit was properly admitted into evidence.
The fact that the document entitled “Purchase Money Mortgage” was not what it purported to be on its face, and was never a part of the transaction between the appellee and the appellant, was evidence to be developed upon cross examination. On cross examination the appellee testified the document was drawn up by a Mr. Wenger at Pacific Finance and Mr. Schoonover, to assist the appellee in financing the automobile at Pacific Finance.
The appellant contends the trial court erred in its instructions to the jury regarding the measure of damages to be applied to the facts in this case.
Complaint is made of the following instruction given to the jury:
“. . . you are instructed that the measure of damages is the difference in the value between the car represented to the plaintiff by the defendant and the value of the car actually received by the plaintiff. . . .”
The foregoing is the law previously announced by this court in Speed v. Hollingsworth, 54 Kan. 436, 38 Pac. 496; McDanel v. Whalen, 91 Kan. 488, 138 Pac. 590; Epp v. Hinton, 91 Kan. 513, 138 Pac. 576; and Hinchey v. Starrett, 91 Kan. 181, 137 Pac. 81, rehearing 92 Kan. 661, 141 Pac. 173. In these opinions the court has affirmed the rule that the plaintiff is entitled to the benefit of his bargain.
The appellant complains that the trial court refused over objection to take into account the basic fact of the transaction — that this transaction constituted a trade of automobiles. It is said the instruction given disregards the basic fact that the appellee was receiving a $2,310 paper credit for what he by his own testimony knew, and what the appellant considered and knew, to be no more than a $1,200 automobile. On cross examination the appellee testified that he traded a 1955 Chevrolet Eel Air Hardtop for the Mercury and the Elue Rook showed it to be worth $1,165. This was the automobile upon which he was given a credit of $2,310, thus making a difference between the Chevrolet and the Mercury of $1,870.
With these facts the appellant refers to the appellee’s petition stating the Mercury to be worth $3,280 true value. Thus, it is argued the appellee traded $1,870 cash, plus an automobile which he valued at $1,200, making a total of $3,070 value for the Mercury, which had at the time of the transaction an agreed true value of $3,280.
The appellant argues the very nature of the puffed value of auto mobiles and a similar puffing of the allowance for an automobile being traded is of common knowledge; and that the law may not operate in a vacuum disregarding all real circumstances in the economic life of our society and continue to be good law.
The appellant takes no issue with the benefit of the bargain rule as applied to sales in the cases cited, but submits that the proper and correct application of the rule upon the facts and circumstances presented by this case requires a consideration of the trade in its entirety.
The appellant’s requested instruction on this point, which the trial court refused to give, reads:
“If you find the fact of false representation and that it had induced the trade, and if you further find from the evidence that the reasonable market value of that which Perry parted with was greater than the reasonable market value of that which he received under the contract from Schoonover Motors, then you are instructed to return a verdict for the plaintiff and if you so find, then your verdict should be the difference, if any, between the reasonable market value on the day the trade was consummated of that which plaintiff parted with and the reasonable market value of that which he received under the contract from Schoonover Motors.”
As authority for this rule the appellant cites George v. Hesse, 53 Tex. Civ. App. 344, 115 S. W. 314.
We think the instruction given by the trial court correctly stated the measure of damages to be applied in the instant case, and that the requested instruction was properly denied. The argument of the appellant that the court’s instruction failed to take into account the fact that appellee received $2,310 as a trade-in credit on an automobile the appellant considered to be worth $1,200 has been answered in Stroupe v. Hewitt, 90 Kan. 200, 206, 133 Pac. 562. Here the contract was executed and no issue was presented by the pleadings as to the condition or value of the property traded in by the appellee. The appellant alleged no fraud on the part of the appellee. It received exactly what it agreed to receive. There is no contention that the appellant gave a credit of $2,310 to the appellee in trade for an automobile, which it figured to be worth $1,200 because of fraud or misrepresentation on the part of the appellee. No such fraud was pleaded and no such fraud was shown. Neither the appellant nor the appellee claimed the Chevrolet was not as represented. The appellant’s position thus resolves into one where it contends the appellee should not be given the benefit of the bargain lie thought he was making, now that the appellant’s fraud in the transaction has been discovered.
It may therefore be said, in a damage action by a purchaser for fraud inducing the purchase, the measure of damages is the difference between thé real value of the property and the value which it would have had if the representations had been true. This measure of damages applies without regard to the price paid, and, in the case of an exchange, without regard to the value of the property given in exchange by the party defrauded, although the price paid may properly be submitted to the jury as a fact to aid them in the assessment of damages. (37 C. J. S., Fraud, § 143, pp. 475, 477, 478.)
The appellant contends that by selling to the appellee the automobile in question for $4,247, there was no representation that tibe appellee could sell or receive this sum for the automobile. This is obviously true because the automobile would no longer be a new automobile the instant the appellee purchased it. However, the price paid for an article is some evidence of its value for the purpose of assessing damages. (Trapp v. Refining Co., 114 Kan. 618, 619, 220 Pac. 249.)
The instruction requested by the appellant which the trial court refused to give is based upon tbe minority rule of damages which is apparently followed in the Texas decision cited. In 37 C. J. S., Fraud, § 143, p. 475, at pp. 479 to 485, the various Texas decisions are discussed disclosing them to be in opposition to one another in this area of damages. We see no reason to apply Texas confusion to settled Kansas law.
The appellant contends the trial court erred in overruling the motion for a new trial.
The sole contention on this point is that during the trial the so-called “Purchase Money Mortgage,” admitted into evidence over the objection of the appellant was a surprise. The appellant says the existence of this document was previously unknown to it. Since this document bears the signature of Ross Schoonover as President of Schoonover Motors, Inc., the appellant argues it was necessary to have Mr. Schoonover, who was unavailable at the time of trial, explain this now important but unexplained evidence which on its face purports to describe a “new” automobile.
Prior to the close of the appellant’s evidence in the trial of the case, counsel for the appellant stated to the court that they needed the testimony of Ross Schoonover, who was not present. However, the appellant did not make a request of the court for a continuance to obtain his testimony, but rested instead.
The only testimony offered at the motion for a new trial was the testimony of Ross Schoonover. He testified to facts which the appellant contends fully explain that in the automobile business an automobile, such as the Mercury here in question, is for finance purposes a “new” automobile.
While the appellant admits the refusal of the trial court to grant a motion for a new trial upon the ground of newly discovered evidence lies generally within the discretion of the trial court, it contends upon the facts herein the trial court should be reversed and the appellant granted a new trial.
We think the facts indicate a lack of diligence on the part of the appellant. In the case of Thompson Co. v. Foster, 101 Kan. 14, 165 Pac. 841, the plaintiff neglected to object to the introduction of certain evidence and failed to request a continuance to meet this evidence. In the opinion the court said:
“. . . No request was made for a continuance to enable the plaintiff to meet this evidence, and having taken its chances with the jury as the matter stood, without objection, it is not in a position to demand a further opportunity for a trial of the facts.” (p. 17.)
In June, 1958, Ross Schoonover was in active management of the appellant corporation. This action was commenced in the district court on February 2, 1960. Since the appellant’s company records were stolen with the company’s vault during the pendency of this case, there was every reason for the appellant to have Ross Schoonover present at the trial, or request a continuance so he could be present. Testimony presented on the motion for a new trial discloses that the appellant had no trouble presenting the Register of Deeds’ copy of the exhibit in question, and there was nothing to prevent the appellant from obtaining this copy when its evidence was presented at the trial. Under these facts the trial court did not abuse die exercise of its power of discretion in refusing to grant the motion for a new trial.
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The opinion of the court was delivered by
Lockett, J.:
Three years after defendant was charged with several rapes, he was convicted and sentenced for two rapes. Defendant appealed, claiming his statutory and constitutional rights to a speedy trial were violated and there was no probable cause to obtain a warrant to search his home and automobile.
Several complaints were filed against Ruff resulting from a number of violent rapes committed in the City of Leavenworth. The crimes charged in 93 CR 444 were alleged to have occurred on March 4, 1993. The crimes charged in 93 CR 445 were alleged to have .occurred on December 9, 1992. The two cases were consolidated and tried to a jury. In this appeal, Ruff does not challenge the sufficiency of the evidence; therefore, the facts stated are those relevant to the legal issues on appeal.
Prior to Ruff’s arrest, an anonymous TIPS hotline caller implicated Ruff in several rapes. Following the tip, police interviewed Ruif, and Ruff provided a blood sample to the police. Preliminary lab results indicated Ruff’s blood type matched the DNA samples taken from the persons of the rape victims and their clothing.
Based on the blood test evidence and other facts stated in the affidavit for the search warrant, the police obtained warrants to search Ruff’s house and automobile. During the search, the police seized several items including a roll of duct tape, a stocking mask, a knife, and a stocking which had been cut to resemble a mask. Based on the accounts of the rape victims, these items were highly probative in the developing case against Ruff. Separate complaints charging the defendant with various rapes and other included offenses were filed by the State. Ruff was arrested. He was brought before a magistrate on September 27, 1993.
Ruff was tried to a jury on October 15, 1996, and found guilty of all counts charged. For the convictions in 93 CR 445, Ruff was sentenced to consecutive terms of 15 years to life for rape, 15 years to life for aggravated robbery, and 5 to 20 years for aggravated burglary. For the convictions in 93 CR 444, Ruff was sentenced to consecutive terms of 15 years to life for the crime of rape, 15 years to life for each of two convictions of aggravated criminal sodomy, 15 years to life for aggravated robbery, 5 to 20 years for aggravated burglary, 5 to 20 years for aggravated battery. The sentences in 93 CR 444 were ordered to run consecutive to the sentences in 93 CR 445. Ruff appealed, claiming his statutory and constitutional rights to a speedy trial were violated and there was no probable cause to obtain a warrant to search his property; therefore, the evidence seized in the search of his home and automobile should have been suppressed.
STATUTORY RIGHT TO SPEEDY TRIAL
K.S.A. 22-3402(1) provides:
“If any person charged with a crime and held in jail solely by reason thereof shall not be brought to trial within ninety (90) days after such person’s arraignment on the charge, such person shall be entided 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 (3).”
Ruff alleges that he was arraigned on September 27, 1993, and asserts that the State failed to bring him to trial within 90 days. We note that separate complaints were filed in case No. 93-CR-444 and case No. 93-CR-445 on September 24, 1993. The appearance docket does note that on September 27, 1993, Ruff appeared before the court, and the word “[ajrraigned” is included in the notation.
An arraignment in a criminal proceeding is the formal act of calling the defendant before a court having jurisdiction to impose sentence for the offenses charged in the information and asking defendant how he or she pleads to the charges. State v. Smith, 247 Kan. 455, Syl. ¶ 3, 799 P.2d 497 (1990). At the September 27, 1993, proceeding, Ruff was informed of the charges against him, and the terms and conditions of the appearance bonds for each case were set. That proceeding was not an arraignment but was Ruff’s initial appearance before a magistrate pursuant to K.S.A. 22-2901.
Two years later, on November 16, 1995, the district court conducted a preliminary examination and found that the evidence supported a finding that it appeared that the offenses had been committed and that there was probable cause to believe they had been committed by Ruff. Ruff was bound over for arraignment on the charges. Arraignment was set for November 27, 1995. An information charging the crimes was filed by the State on November 27, 1995. The court records note Ruff was arraigned on that date. Therefore, it is clear that Ruff was arraigned on November 27, 1995, not September 27, 1993.
After Ruff’s initial appearance on September 27, 1993, but prior to his arraignment on November 27, 1995, Ruff was tried and convicted for a separate rape, 93 CR 267. He was convicted on July 12, 1995, and sentenced to three consecutive terms: two terms of 15 years to life and one term of 5-10 years. Therefore, Ruff was incarcerated for prior convictions at the time of the arraignment in the instant case on November 27, 1995, and remained incarcerated until he was tried by a jury on October 15, 1996.
The statutory right to a speedy trial applies to defendants who are charged with a crime and held to answer on an appearance bond or charged with a crime and held in jail solely by reason of the subject criminal charge. K.S.A. 22-3402(1) and (2). The statutory time for a speedy trial normally commences on the date of arraignment. See Smith, 247 Kan. 455, Syl. ¶ 2. The statutory right to a speedy trial does not apply to a criminal defendant who is held in custody for any reason other than the subject criminal charge. State v. Mathenia, 262 Kan. 890, 900, 942 P.2d 624 (1997). As noted, from arraignment to trial in this case, Ruff was and is now incarcerated for a conviction of rape in the separate case. Therefore, Ruff’s statutory right to a speedy trial does not apply here.
CONSTITUTIONAL RIGHT TO SPEEDY TRIAL
The Sixth Amendment to the United States Constitution guarantees the accused in a criminal prosecution a speedy trial. The constitutional right to a speedy trial attaches when an individual becomes an “accused.” State v. Schlicher, 230 Kan. 482, 486, 639 P.2d 467 (1982). The test to determine whether an accused has been denied the constitutional right to a speedy trial was stated in Barker v. Wingo, 407 U.S. 514, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972). The Barker factors are: the length of the delay, the reason for the delay, the defendant’s assertion of the right, and prejudice to the defendant. Barker, 407 U.S. at 530. Kansas adopted the Barker four-point test in State v. Otero, 210 Kan. 530, 532-33, 502 P.2d 763 (1972).
Length of Delay
A determination of a constitutional violation of an accused’s right to a speedy trial depends on the facts and circumstances of each case, and the mere passage of time is not determinative. Schlicher, 230 Kan. at 487. The length of delay is to some extent a triggering mechanism. Until there is some delay which is presumptivelyprejudicial, there is no necessity for inquiry into the other factors that go into the balance. Barker, 407 U.S. at 530. See State v. Green, 260 Kan. 471, 474, 920 P.2d 414 (1996).
We generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, it is part of the mix of relevant facts, and its importance increases with the length of delay. State v. Vaughn, 254 Kan. 191, 198, 865 P.2d 207 (1993).
We have noted that Barker mandates an ad hoc approach in which each case is analyzed according to its particular circumstances. State v. Fitch, 249 Kan. 562, 564, 819 P.2d 1225 (1991). In Fitch we reviewed a variety of speedy trial violation claims and determined that, under the facts, lengths of delay from 1 to 5 years had not violated the defendant’s right to a speedy trial. Fitch, 249 Kan. at 564.
The time lapse between Ruff’s arrest and the trial was approximately 3 years. A delay of 3 years is significant, warranting a consideration of the other Barker factors.
Defendant’s Assertion of the Right to a Speedy Trial
The State points out that the primary factor that impeded the progress of the case was Ruff’s trial and conviction in the intervening rape case. The State contends that after Ruff’s arrest, to avoid the prejudice associated with having a large number of charges before the jury, Ruff insisted on separate trials for each rape case. The record does not support the State’s contention that Ruff requested separate trials. We note that the State chose to file separate complaints. In addition, the record indicates Ruff moved the court on several occasions for an order of dismissal of the charges against him based on a violation of his right to speedy trial. On November 9, 1995, Ruff wrote a letter to the court asking the court to conduct a single preliminary examination and consolidate all cases of rape pending against him and try them together.
Reason for Delay
The appearance docket in this case not only includes the activity in the instant case but also the activity in 93 CR 267, the intervening rape case. It is clear from the notations in the court records that significant delays in the trial are attributed to several factors: the State’s use of DNA evidence, Ruff’s independent DNA analysis, the use of DNA experts to interpret the analysis, Ruff’s competency evaluations, and Ruff’s discharging of and the court’s appointment of several different defense attorneys to represent Ruff.
The most significant cause of delay to the trial of this case was Ruff’s trial and conviction in 93 CR 267, the other rape case. Immediately after the sentencing in that case, the activity in this case began to move toward preliminary hearing at a swifter pace, but not without any further delay, due largely to changes in Ruff’s defense counsel. The court records indicate that during the course of the case, Ruff discharged or moved the court to discharge four attorneys. After each appointment of a new attorney to represent the defendant, continuances were granted to provide the newly appointed attorney an opportunity to meet with Ruff and prepare for trial.
Clearly, the complexity of the DNA evidence, numerous changes in defense attorneys, and the intervening rape trial slowed the progress of this case to an extraordinary degree. However, it does not appear from the record that the State purposefully engineered the delays, and it does appear that a majority of the continuances can be attributed to Ruff. Under the circumstances, there was no excessive delay in bringing Ruff to trial.
Prejudice
The Barker court indicated three factors which may show prejudice to the defendant: oppressive pretrial incarceration, anxiety and concern of the accused, and, most important, impairment of the defense. Barker, 407 U.S. at 532. Ruff alleges none of these factors.
Ruff contends that the delay caused by the intervening rape trial was prejudicial to him because the intervening rape conviction was included in his criminal history for sentencing in this case. He asserts the intervening conviction increased his sentences in this case and allowed the trial judge to order that his sentences be served consecutive to the sentences in the intervening case.
Ruff does not show the effect of the intervening convictions on his sentences in this case. Any effect of the prior conviction must be weighed against the result if this case had been tried first and those convictions considered in Ruff’s criminal history at sentencing in the intervening case. It is unnecessary to consider such a calculation because the prejudice to be avoided by undue delay goes to the mental, emotional, and physical stresses on a presumptively innocent defendant and the defendant’s diminished ability to defend against the charges with the passage of time. See Barker, 407 U.S. at 532-33. Therefore, Ruff has failed to demonstrate how the delay caused by the intervening case prejudiced his right to a speedy trial in this case.
In sum, while the length of the delay in bringing Ruff to trial was significant, the reasons were largely chargeable to Ruff and the difficulties inherent in having more than one case pending against a defendant. Clearly, Ruff asserted his right to a speedy trial on several occasions, but he did not then and does not now, demonstrate prejudice caused by the delay sufficient to warrant dismissal of the case. Furthermore, there is no evidence that the State neglected the case or manipulated the delay. Therefore, Ruff’s constitutional right to a speedy trial was not violated.
SUPPRESSION OF EVIDENCE
The affidavit filed by the police in support of the applications for the search warrants is set out below:
“That since November 1990, the City of Leavenworth has experienced a series of sexual assaults, and rapes. Over the course of the investigations, similarities] have surfaced which would indicate the crimes could very well be the work of one individual. With the assistance of the Federal Bureau of Investigation and Kansas Bureau of Investigation Laboratories, DNA was isolated in five of the victims as coming from the same suspect. Information was also received from the Kansas City Area TIPS hot line which advised that a possible suspect in the rapes would be a Herbert Ruff who now resides in the City of Leavenworth. Upon following up on this lead, Mr. Ruff was interviewed and gave a blood sample. That blood sample was found to be type B, which is similar to the type isolated in the five DNA matches. Testing of the DNA and Mr. Ruff’s blood sample is continuing at the Kansas Bureau of Investigation laboratory.
“On a rape which occurred on May 28, 1993 at [an address], the Leavenworth Police Department received a report of a suspicious vehicle in the area of Olde Creek Court. Upon checking this vehicle it was found to belong to Herbert Ruff. The vehicle was a Brown over Black Oldsmobile Delta 88 with Kansas Tags, FFK694. .The time [of] the check of Mr. Ruff’s vehicle would have coincided with the rape and the vehicle would have been within two block[s] of the location of [the] occurrence. Mr. Buff also has a criminal history for prior rape and sodomy offenses. The vehicle at the time of this check was found empty.
“Upon doing background on the victims of the attacks, it was found that Mr. Ruff resided at [an address], which was next door to victim [TC] who was assaulted on September 28, 1991. The victim of the rape which was reported on June 19, 1993 stated that she was employed at Food 4 Less and her boyfriend is employed at Price Chopper, which is where Mr. Ruff’s wife is employed.
“During the initial investigations, [a] Kansas State Prison bloodhound as well as the police department K-9 were utilized in an attempt to locate a possible suspect. In every case the dogs would pick up a track of the suspect which would then end abruptly within a couple of blocks of the location of [the] occurrence. This indicates to the handlers that the suspect most likely entered a vehicle [somewhere] within the general location.” (Emphasis added.)
Prior to trial, Ruff moved the court to suppress the evidence seized in the warrant search of his home and car. He argued to the trial court and he contends on appeal that the affiant’s statement that Ruff had a prior criminal history of rape and sodomy was patently false and deliberately misleading, and the reliability and credibility of the informant was not sufficiently established in the affidavit.
In State v. Jacques, 225 Kan. 38, 587 P.2d 861 (1978), this court, relying on Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978), stated the general rules regarding challenges to the sufficiency of an affidavit supporting an application for a search warrant:
“[T]here is a presumption of validity with respect to an affidavit supporting a search warrant and generally a party against whom a search warrant is directed may not dispute the matters alleged in the supporting affidavit or application. [Citation omitted.]
“An exception to the above general rule is recognized if the challenger’s attack is supported by allegations and an offer of proof under oath that the affidavit or application for search warrant contains material statements of deliberate falsehood or of reckless disregard for the truth. Under this exception an evidentiary hearing would be required on a motion to suppress evidence obtained in the search. The challenger has a duty to point out specifically the portion of the warrant affidavit that is claimed to be false, and a statement of supporting reasons should accompany the motion to suppress." Jacques, 225 Kan. at 43-44.
Under this rule, if the defendant can show that without the false information the affidavit is insufficient to support a finding of probable cause, the defendant is entitled, under the Fourth and Fourteenth Amendments, to a full evidentiary hearing on the motion. State v. Breazeale, 238 Kan. 714, 725, 714 P.2d 1356, cert. denied 479 U.S. 846 (1986).
Probable Cause
The duty of the reviewing court is to ensure that the magistrate that issued the search warrant had a substantial basis for concluding probable cause existed. In making its determination, the reviewing court is required to pay great deference to the issuing magistrate’s finding of probable cause for the issuance of the warrant, and such after-the-fact scrutinizing should not take the form of de novo review. State v. Henry, 263 Kan. 118, 126, 947 P.2d 1020 (1997).
In determining whether probable cause exists to support a search warrant, the magistrate must view the affidavit under the totality of the circumstances. This requires the issuing magistrate to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit, there is a fair probability that contraband or evidence of a crime will be found in a particular place. State v. Toler, 246 Kan. 269, 272, 787 P.2d 711 (1990) (citing Illinois v. Gates, 462 U.S. 213, 76 L. Ed. 2d 527, 103 S. Ct. 2317, reh. denied 463 U.S. 1237 [1983]). Ruff contends that the affidavit failed to provide facts supporting the credibility and reliability of the information obtained from a confidential informant. He argues that without such information, the affidavit is insufficient to support the magistrate’s finding of probable cause.
We have adopted the totality of the circumstances analysis set forth in Gates for judging the credibility and reliability of information obtained from a confidential informant. See Toler, 246 Kan. 269.
Motion to Suppress
Without ruling on the motion to suppress, the trial judge denied an evidentiary hearing on the motion, stating that he had in the previous case (93 CR 267) ruled that the affidavit supplied probable cause to issue a valid warrant. Therefore, he was declining to reconsider the motion to suppress.
On appeal, Ruff contends that the district judge was incorrect in stating that in a previous case he had ruled on the sufficiency of the affidavit. In support, Ruff notes that the subject of the suppression hearings in the prior case was the blood samples taken from Ruff for DNA testing. Ruff points out that the record and transcripts of 93 CR 267 fail to show that an evidentiary hearing was held to determine the sufficiency of the affidavit for the search warrant.
The case alluded to by the trial court, 93 CR 267, was reviewed in the unpublished opinion, State v. Ruff, 75,742, filed May 30, 1997. In that case this court noted: “In the district court, Ruff filed a motion to suppress blood test results and evidence seized from the searches of his house and car. . . . The record does not contain express dispositions of these motions.” From this note in the opinion, we conclude that the trial court failed, for a reason unknown, to rule on the sufficiency of the affidavit supporting the search warrant in either case.
Even though the trial judge failed to rule on the sufficiency of the supporting affidavit, this court is not without a basis to review the issuing court’s finding of probable cause. Where the controlling facts are based upon written or documentary evidence, the appellate court has as good an opportunity to examine and consider the evidence as did the court below and determine de novo what the facts establish. Kneller v. Federal Land Bank of Wichita, 247 Kan. 399, 400, 799 P.2d 485 (1990). Whether the affidavit supports a finding that there appeared to be probable cause that a crime had been committed and that evidence of the crime would be found at Ruff’s residence and in his car is a legal question that the trial court or this court can decide on the basis of the affidavit. Therefore, this court is as capable as the trial court to make the sufficiency determination.
Criminal History
At the suppression hearing, Ruff argued the affidavit supporting the search warrant contained false information that he had a criminal history of rape and sodomy offenses. Ruff admitted to the district judge that he had been previously arrested for rape and sodomy but had not been convicted of those offenses. The State explained that the statement regarding Ruff’s prior criminal history in the affidavit was based on a Kansas Bureau of Investigation (KBI) printout which indicated Ruff had been arrested and charged with sex offenses in Wyandotte County. The State informed the court that the prior charges had been dismissed because the victims in those cases chose to forego prosecution. The parties make the same arguments here on appeal.
Whether prior arrests constitute criminal history for purposes of probable cause to issue a search warrant is an issue of first impression in Kansas. The prior arrest information referred to in the affidavit was provided by the KBI.
Upon arrest for certain offenses, including sex offenses, it is the duty of the arresting law enforcement agency to collect identifying data, including fingerprints and a physical description, on the person arrested and forward that data to the KBI. K.S.A. 21-2501(a) and (c). The data sent to the KBI and collected in a central repository is maintained as “[c]riminal history record information.” K.S.A. 22-4701(b). The KBI is authorized to provide nonconviction criminal history record information to other criminal justice agencies for investigation purposes. K.S.A. 22-4706(b); K.S.A. 22-4707; K.A.R. 10-12-2. Therefore, the information in the affidavit regarding Ruff’s prior arrests was a record of Ruff’s criminal history.
The next question is whether the nonconviction data in the criminal history record information can be used by the law enforcement history to support a finding of probable cause. The United States Supreme Court held in Brinegar v. United States, 338 U.S. 160, 93 L. Ed. 1879, 69 S. Ct. 1302, reh. denied 338 U.S. 839 (1949), that facts sufficient to establish probable cause must not necessarily rise to the level of facts admissible in a court of law. The Brinegar court explained:
“For a variety of reasons relating not only to probative value and trustworthiness, but also to possible prejudicial effect upon a trial jury and the absence of opportunity for cross-examination, die generally accepted rules of evidence throw many exclusionary protections about one who is charged widi and standing trial for a crime. Much evidence of real and substantial probative value goes out on considerations irrelevant to its probative weight but relevant to possible misunderstanding or misuse by the jury.
“However, if those standards were to be made applicable in determining probable cause for an arrest or for search and seizure . . . few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end. . . .
“In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved.” 338 U.S. at 173-75.
As in this case, the information at issue in Brinegar concerned the defendant’s criminal arrest record. The defendant in Brinegar argued that because the information regarding his prior arrests was not competent trial evidence, it was likewise incompetent to establish probable cause. The. Supreme Court disagreed, finding the evidence of prior arrests was excluded at trial, not because “it was without probative value,” but to avoid “possible misunderstanding or misuse by the jury.” 338 U.S. at 173. As probative of probable cause, it was properly taken into account by the issuing court.
Where sufficiently connected with the case under investigation, information regarding a suspect’s prior arrests can be probative of probable cause. Not all prior arrests or convictions meet the test of probative value, and when they do not, they will not support probable cause. In this case, where the prior arrests were for crimes very similar to the crime under investigation, they were probative' of probable cause and properly considered by the issuing court.
Reliability and Credibility of Informant
It is not necessary in this case to judge the veracity and credibility of the confidential informant. There was no confidential informant. The TIPS hotline caller was included in the affidavit merely to explain how Ruff became a suspect in the police investigation, not to assert Ruff committed the crimes. Therefore, the veracity or credibility of an informant was not an issue.
Sufficiency of the Affidavit
The affidavit asserted that DNA and other evidence strongly suggested that a series of rapes which had occurred in Leavenworth were committed by one individual. Police used K-9 dogs to determine a pattern existed which indicated the rapist had driven to a location within a couple blocks of the victim’s home, parked his car, and then walked to the victim’s home. A citizen informer advised that Ruff should be investigated. Ruff was interviewed, and he provided a blood sample which did not eliminate him as a suspect. Ruff’s car had been spotted in the vicinity at the time of one of the rapes; Ruff resided next door to one of the rape victims; and the boyfriend of another rape victim worked with Ruff’s wife at a local grocery store. The applications for the search warrants were filed within 24 hours of the last rape.
Under the totality of the circumstances, these facts, regardless of Ruff’s criminal history and the information received through the TIPS hotline, support probable cause to believe that Ruff was involved in the crimes and that evidence of the crimes might be found on his property.
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The opinion of the court was delivered by
Davis, J.:
The defendant was convicted of aggravated indecent liberties with a child. His constitutional right to be present at every critical stage of the proceeding was violated by the trial judge’s ex parte communication with the jury during its deliberation. The Court of Appeals concluded the error was harmless beyond a reasonable doubt and affirmed. 24 Kan. App. 2d 921, 955 P.2d 1325 (1998). We granted the defendant’s petition for review and now reverse and remand for further proceedings.
In early July 1994, A.C., 8 years old, and her brother, C.C., 7 years old, were visiting their grandmother. The children decided to visit a next door neighbor, Jerry Merrick. The defendant, John McGinnes, a friend and coworker of Merrick who had known Merrick for 25 years, had spent the night with Merrick and was present when the children visited.
Merrick testified that soon after he let the children in, C.C. left. According to Merrick, the defendant then asked him to go to the store to get the defendant a package of cigarettes. Merrick wondered why the defendant wanted him to get cigarettes as Merrick’s truck had a bad battery and would not start. Merrick stated that he took the defendant’s truck into town to get the cigarettes, a journey which took 8 to 10 minutes round trip. When he returned, the defendant and A.C. were sitting in the same chairs they had been sitting in when he left. Shortly thereafter, A.C. left.
Nine months later, in April 1995, Merrick was drinking with A.C.’s grandmother and talking about recent sex crimes in the area. Merrick, who admitted that he was intoxicated at the time, mentioned to the grandmother the incident 9 months earlier when the defendant asked him to go for cigarettes. Merrick suggested that the grandmother ask A.C. if anything had happened with the defendant in Merrick’s absence.
At trial, Merrick admitted that earlier in the spring he and the defendant had a falling out over a chain saw which the defendant claimed had been ruined by Merrick and as a result of the incident their joint business endeavor ended. However, Merrick stated that soon after the argument he and the defendant started working together again.
The grandmother told her daughter, L.C., about her conversation with Merrick. The next day L.C. questioned A.C. as to whether anything happened when she visited Merrick’s trailer. L.C. testified that A.C., now 9 years old, immediately started crying and said that the defendant had touched her private parts under her clothes and made her touch his private parts.
L.C. immediately walked to the house of her neighbor, Rockey Whinery, who was the chief of police. When she discovered that Chief Whineiy was not home, she dialed 911 to report the incident. Chief Whinery and Officer Ash immediately came to her house. A.C. was interviewed by Chief Whinery. Neither Chief Whinery nor Officer Ash testified at trial.
Several days later A.C. was interviewed by Patricia Farris, a Social and Rehabilitation Services social worker. A.C. related to Farris that she went to Merrick’s trailer and the defendant asked Merrick to get him some cigarettes. A.C. stated that after Merrick left, the defendant touched her on her private parts and forced her to touch him on his private parts. A.C. claimed that the defendant told her that if she told anyone about this touching, he would do it again. Farris testified that A.C. made a mark on a drawing of an adult male to show where she had been forced to touch the defendant and also marked, a drawing of a girl to show where she had been touched. A videotape of A.C.’s interview with Farris was shown to the jury at trial.
A.C. was called as a witness for the State and testified that the defendant had touched her inside her panties and grabbed her hand and put it inside his underwear. She stated that this occurred at Merrick’s house while Merrick had gone to get cigarettes. When asked whether she had ever attempted to light any cigarettes while in the trailer, she denied doing so.
The defendant testified on his own behalf. He denied touching A.C. He stated that A.C. and her brother had visited Merrick’s trailer on the day in question. He testified that A.C. and C.C. kept trying to light some wet cigarettes that were on the table in the trailer. He knew that Merrick’s truck was not working and Merrick was out of cigarettes so he asked Merrick if Merrick wanted to borrow his truck to get some cigarettes. The defendant testified that he did not ask Merrick to get cigarettes for him because the type of cigarettes the defendant smoked were not sold in town.
The defendant testified that after Merrick left, he went outside to make sure that Merrick had attached the battery charger to the truck. When he went back inside, he found A.C. trying to light one of the wet cigarettes and yelled at her. According to the defendant, A.C. threw the cigarette on the floor, sat down, and began watching television until Merrick returned.
The defendant further testified that Merrick and he had an argument because Merrick had borrowed his gas can and put straight gasoline in it rather than a gas and oil mixture. This in turn caused the defendant to put the straight gas in his chain saw, with the result that the chain saw was damaged. The defendant told Merrick to buy him a new chain saw and Merrick became angry.
The defendant admitted on cross-examination that while his brand of cigarettes was not sold in town, he sometimes smoked menthols which were available. He indicated that on occasions in the past he had asked Merrick to get him a pack of cigarettes.
The jury began its deliberations at 10:35 a.m. Soon thereafter, the first of the complained-of incidents occurred. The actual occurrence itself was not on the record. Instead, we construct the event as best we can from the recollection of the parties.
After deliberations began, the trial judge happened to be outside the jury room. One of the jurors posed a question, possibly to another juror, as to why the jury had not heard testimony from Police Chief Whinery. The substance of what occurred next was related to the court by the defendant’s counsel:
“My recollection was that Judge advised us — [the trial judge] advised [the prosecutor] and I about this situation where he was outside of the door, that he overheard one of the witnesses [sic] ask, 1 wonder why we did not hear the testimony of Police Chief Rocky Whinery?’ and then [the trial judge] told us or advised us that he had advised the jurors at that time that ‘Rocky Whinery is at the law enforcement academy and was unable to be present at this trial. You should not concern yourselves with his absence, as to bring him back for the trial would have interfered with his training, and his absence here should not concern you,’ and that is shown in the motion as a quote. It is actually a paraphrase. I’m quoting — I mean, we were not recording, but that’s as near as I can remember what was said.”
The prosecutor stipulated that the defense counsel’s recollection of the event was accurate.
The second incident occurred soon thereafter. At 12:30 p.m. the jury requested a readback of the victim’s mother’s testimony. Following this readback, the trial judge, without consulting either counsel sua sponte instructed the jury as follows:
“All right. Let me just make a couple of comments. And, that is, you have heard the testimony of each of the witnesses. You have heard the Court’s instructions as to the law which applies to this case, and you have those instructions with you in the jury room, and they are in writing. And you have been given the exhibits which have been offered and received in evidence.
“So I would ask you to focus your minds on the testimony that you have heard. I would ask you to re-read the instructions that I have given you, and I would ask you to look at the exhibits that have been admitted into evidence.
“And if you will concentrate on these things and on what has been presented and not allow yourselves to be diverted or not try to speculate on things that have not been presented, I think it will be helpful to you in arriving at a decision.
“So at this point, we’ll let you go back into the jury room and continue your deliberations. And as soon as your lunch orders are received, that will be brought in to you, and you can go ahead with your discussions and so on while you’re having lunch.
“And, again, if you have any questions, feel free to write those down, and they will be given to me. I will review them with the attorneys, and we’ll try to get the appropriate answers for you. So thank you very much. You may now return to the jury room.”
After the jury returned to the jury room, the defendant moved for a mistrial on the ground that the supplemental instruction was similar to an Allen charge. The State argued that the court had simply reiterated the instructions previously given to the jury. The trial judge denied the request.
At 3:00 p.m. the same day, the jury found the defendant guilty of aggravated indecent liberties with a child. The defendant filed a motion for a change of judge and a new trial. A new district judge was assigned to hear the motion for new trial.
In preparation for the hearing on the motion for new trial, defense counsel subpoenaed the trial judge to testily regarding his statements and actions during and after the ex parte communications. However, the trial judge informed defense counsel that he would not honor the subpoena because his son had been in a car accident and the judge was going to spend time with his family. The prosecutor was added into the discussion by conference call and agreed not to object to the admission of hearsay statements by the trial judge if the judge was not required to be at trial. The trial judge then telephoned the hearing judge and explained the situation, and the hearing judge agreed to release the trial judge from the subpoena and stated that he would have allowed him to be deposed later if necessary. However, the hearing judge stated on the record that he thought the trial judge’s testimony was not necessary as the trial judge agreed with both defense counsel’s and the State’s recollection of the events surrounding the ex parte communication.
During the hearing on the motion for new trial, the defense counsel stated that he had contacted a number of jurors who had informed him that the trial judge’s ex parte comments had no influence on their decision. However, defense counsel stated that he had been unable to contact one juror, although he proffered that the juror’s stepson had stated that the juror had been influenced in some manner by the trial judge’s statements.
The court determined that the defendant had failed to establish that the trial judge’s ex parte communication substantially prejudiced his rights. The court also found that the supplemental instruction given by the trial judge was not objectionable and denied the defendant’s motion for new trial.
COURT OF APPEALS’ DECISION
In a split decision, the Court of Appeals affirmed the defendant’s conviction, concluding that although the trial judge’s ex parte communication with the jury was error, it was harmless because no actual prejudice was shown. 24 Kan. App. 2d at 927-28. The Court of Appeals also found that the trial judge’s giving of a supplemental instruction without consulting with counsel was error but again determined that it was harmless error. 24 Kan. App. 2d at 928-29. Finally, the Court of Appeals determined that the court did not err in releasing the trial judge from the defendant’s subpoena. 24 Kan. App. 2d at 930.
In a dissent, Judge Knudson concluded that he would have reversed the defendant’s conviction and granted the defendant a new trial. The dissent reasoned that: (1) the trial judge’s ex parte communication with the jury was a substantive misstatement of the law and had a direct impact on the concept of reasonable doubt and (2) the sua sponte supplemental instruction compounded the damage of the ex parte communication and further shifted the burden of proof by requiring the defendant to present evidence to establish reasonable doubt. 24 Kan. App. 2d at 930-33.
DISCUSSION AND ANALYSIS
The trial judge’s ex parte communication with the jury and his sua sponte supplemental instruction to the jury constituted trial error. K.S.A. 22-3405, as well as the Sixth Amendment’s Confrontation Clause and the Due Process Clause of the Fourteenth Amendment, require the defendant’s presence at every critical stage of a trial, including a conference between a trial judge and a juror. Crease v. State, 252 Kan. 326, 333, 845 P.2d 27 (1993); State v. Lovely, 237 Kan. 838, 843-44, 703 P.2d 828 (1985). See also State v. Garcia, 233 Kan. 589, Syl. ¶ 2, 664 P.2d 1343 (1983) (holding that a defendant’s constitutional and statutory right to be present includes the right to be present whenever the court communicates with the jury). Further, K.S.A. 22-3420(3) requires that once the jury has begun deliberations, any questions from the jury concerning the law or evidence pertaining to the case must be answered in open court in the defendant’s presence, unless the defendant is absent voluntarily. Crease, 252 Kan. at 333. Thus, there is no question that the trial court’s ex parte communication with the jury violated the defendant’s constitutional right to be present at all critical stages of the trial. The question, therefore, is whether this error requires reversal.
The Ex Parte Communication
Before we may declare an error of constitutional magnitude harmless beyond a reasonable doubt, we must be able to decide beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. Crease, 252 Kan. at 334. An analysis of our decisions in this regard is instructive.
In Crease, during jury deliberations, the trial judge communicated with a juror on an ex parte basis regarding instructions concerning felony murder and guilt or innocence. Pursuant to the suggestion of the trial judge during the ex parte conversation, the juror submitted the following question in writing:
“ ‘If it is already pre-determined (it seems) that the defendant is guilty of a crime, whether or not he actually committed the particular act or not, do we as jurors really have a choice in the matter as to whether he is to be judged (by us) guilty or not guilty.
‘The State tried to prove he was in the basement and actually committed the act. The defense says otherwise. Are we bound by the statement in [Instruction] 21. Do we have, a choice?’
Instruction 21 provided: ‘A person is criminally responsible for the conduct of another when, either before or during the commission of a crime, and with the intent to promote or assist in the commission of the crime, he intentionally aids or advises the other to commit the crime.’ ” 252 Kan. at 328.
In answer to the juror’s question, the judge in Crease orally and on the record responded:
‘To answer that question it is contained in the written Instructions in Instruction Number 1.1 will read a portion of that to all of you again.
‘ “Members of the Jury: It is my duty to instruct you in the law that applies to this case and it is your duty to follow the Instructions. You must not single out one or more Instructions and disregard others. You should construe each [In]struction in the light of and in harmony with the other Instructions, and you should apply the Instructions as a whole to the evidence.” ’ ” 252 Kan. at 329.
Three hours later, the jury reached a verdict. In determining that the error was harmless beyond a reasonable doubt, we relied heavily on the overall strength of the evidence of guilt. We outlined this evidence in detail, indicating that even the defendant’s own testimony acknowledged his participation in the burglary and his awareness that at least one rifle was carried into the house in which the sleeping couple was shot and killed during the burglaiy. We noted that, given the burglaiy convictions, only if one or more jurors did not follow the instructions could there have been a hung juiy or acquittal on the felony-murder charges. 252 Kan. at 336. We also noted that a judge did not pressure the juror and that no objection was made to the trial court’s instruction to the jury in response to the written question of the juror. 252 Kan. at 336.
We again revisited this same issue in State v. High, 260 Kan. 480, 922 P.2d 430 (1996). High was convicted by a juiy trial for aggravated kidnapping, first-degree murder, and felony theft. Among other errors, the defendant alleged that an ex parte communication by the trial judge with a juror constituted error requiring reversal. We, however, ruled otherwise under the following facts:
In High, the Shawnee County District Court Administrator’s office received an anonymous telephone call on voice mail during a lunch break when the jury was deliberating. The trial judge gathered the defendant, his attorney, and the State’s attorney, and the administrative assistant from the court administrator’s office into his chambers after lunch. The trial judge described the contents of the telephone call as follows:
“ “Well, we are all assembled outside the presence of the jury for the purpose of considering an anonymous phone call received in the Court Administrator’s office which I think could be best described as a, a message which purports to tell us that, that one of the jurors, namely Deana Smith has some sort of, apparently, telephonic business contact with persons or I guess she says members of the Gardner family [victim’s family] in a business sense through her employment with the Kansas Building Trades, and we, in discussing it, thought maybe — and I think the word “Fund” is mentioned, and it probably does relate to workmen’s compensation claims that the union, I guess, is processing in one way or another for employees at Gardner Floor.’ ” 260 Kan. at 484.
The judge asked for suggestions on how to proceed. There was disagreement but there was no objection to the way the trial judge elected to proceed. He indicated to the parties that he would call the juror into chambers without the parties being present, interrogate the juror on the record, read the record to the parties, and then ask the parties on suggestions on how to proceed based on the results. This took place and no objections or suggestions were voiced at that time. The court declined to strike the juror from the panel.
While we recognized in that case that error had been committed we had “absolutely no hesitancy in declaring, beyond a reasonable doubt, that the error had little, if any, likelihood of having changed the result of the trial.” 260 Kan. at 486. In reaching this conclusion we noted:
“It would be difficult to conceive a matter requiring a conference between a trial judge and a juror involving a factual basis of less significance. ... No objection was voiced to the plan as stated by the trial court. No complaint was voiced when a record of the conference was read to the parties. No facts came out at the meeting which cast any doubt on the juror’s fitness to sit on the case. . . . The facts of the ex parte conference herein involve a matter considerably less significant than shown in Crease.” 260 Kan. at 486.
While not specifically mentioned in connection with this alleged error, we also noted that the evidence against the defendant was overwhelming. See 260 Kan. at 487.
The United States Supreme Court has also addressed the issue of the harmless error rule as applied to a judge’s ex parte communication with jurors. In Rushen v. Spain, 464 U.S. 114, 78 L. Ed. 2d 267, 104 S. Ct. 453 (1983), the United States Supreme Court determined that an unrecorded ex parte communication between the trial judge and a juror was subject to harmless error analysis and reversed the United States Court of Appeals for the 9th Circuit which held that an unrecorded ex parte communication between the trial judge and juror can never be harmless error. In reaching its conclusion, the Court noted:
“Our cases recognize that the right to personal presence at all critical stages of the trial and the right to counsel are fundamental rights of each criminal defendant. ‘At the same time and without detracting from the fundamental importance of [these rights], we have implicitly recognized the necessity for preserving society’s interest in the administration of criminal justice. Cases involving [such constitutional] deprivations are [therefore] subject to the general rule that remedies should be tailored to the injury suffered . . . and should not necessarily infringe on competing interests.’ United States v. Morrison, 449 U.S. 361, 364[, 66 L. Ed. 2d 564, 101 S. Ct. 665] (1981); see also Rogers v. United States, 422 U.S. 35, 38-40[, 45 L. Ed. 2d 1, 95 St. Ct. 2091] (1975). In this spirit, we have previously noted that the Constitution ‘does not require a new trial every time a juror has been placed in a potentially compromising situation . . . [because] it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their role.’ State v. Phillips, 455 U.S. 209, 217[, 71 L. Ed. 2d 78, 102 S. Ct. 940] (1982). There is scarcely a lengthy trial in which one or more jurors do not have occasion to speak to the trial judge about something, whether it relates to a matter of personal comfort or to some aspect of the trial. The lower federal courts’ conclusion that an unrecorded ex parte communication between trial judge and juror can never be harmless error ignores these day-to-day realities of courtroom life and undermines society’s interest in the administration of criminal justice.
“This is not to say that ex parte communications between judge and juror are never of serious concern or that a federal court on habeas may never overturn a conviction for prejudice resulting from such communications. When an ex parte communication relates to some aspect of the trial, the trial judge generally should disclose the communication to counsel for all parties. The prejudicial effect of a failure to do so, however, can normally be determined by a post-trial hearing. The adequacy of any remedy is determined solely by its ability to mitigate constitutional error, if any, that has occurred. [Citations omitted.] Post-trial hearings are adequately tailored to this task. [Citations omitted.]
“The final decision whether the alleged constitutional error was harmless is one of federal law. Chapman v. California, 386 U.S. 18, 20-21[, 17 L. Ed. 2d 705, 87 S. Ct. 824, 24 A.L.R.3d 1065] (1967). Nevertheless, the factual findings arising out of the state courts’ post-trial hearings are entitled to a presumption of correctness. See 28 U.S.C. § 2254(d); Sumner v. Mata, 449 U.S. 539[, 66 L. Ed. 2d 722, 101 S. Ct. 764] (1981). The substance of the ex parte communications and their effect on juror impartiality are questions of historical fact entitled to this presumption. Thus, they must be determined, in the first instance, by state courts and deferred to, in the absence of ‘convincing evidence’ to the contrary, by the federal courts. [Citation omitted.] Here, both the State’s trial and appellate courts concluded that the jury’s deliberations, as a whole, were not biased. This finding of ‘fact’ — on a question the state courts were in a far better position than the federal courts to answer — deserves a ‘high measure of deference’, [citation omitted], and may be set aside only if it ‘lack[s] even “fair support” in the record.’ Marshall v. Lonberger, 459 U.S. at 432[, 74 L. Ed. 2d 646, 103 S. Ct. 843], The absence of a contemporaneous recording will rarely deprive the finding of ‘even “fai[r] suppor[t]” in the record.’ ” 464 U.S. 117-20.
The Court concluded that the post-trial hearing was more than adequate to support a conclusion that the juror’s presence on the jury did not prejudice the respondent, especially in light of the fact that the ex parte communication was innocuous, did not discuss any fact in controversy or any law applicable to the case, and simply assured the juror that there was no cause for concern. 464 U.S. at 121.
In Rogers v. United States, 422 U.S. 35, 45 L. Ed. 2d 1, 95 S. Ct. 2091, (1975), the Court reversed a conviction based upon the ex parte communication of the trial judge with the jury concerning the nature of sentence to be imposed. The defendant was charged under federal statute with making oral threats to take the life of or to inflict bodily harm upon the President of the United States. After deliberating for almost 2 hours without reaching a verdict, the jury inquired in writing whether the court would “ ‘accept the Verdict— “guilty as charged with extreme mercy of the court.” ’ ” Without notifying the petitioner or his counsel, the court instructed the marshal who delivered the note “ ‘to advise the jury that the Court’s answer was in the affirmative.’ ” Within 5 minutes, the jury returned that verdict. 422 U.S. at 36-37.
The Supreme Court noted that the actions of the trial court violated Federal Rule of Criminal Procedure 52(a), as well as denying the defendant the right to be present during all critical stages of the trial. The Court stated that the nature of the information conveyed to the jury, in addition to the manner in which it was communicated, did not permit a conclusion that the error was harmless beyond a reasonable doubt. At the very least, the jury should have been reminded that its recommendation would not be binding in any way, and that it should reach its verdict without regard to what sentence might be imposed. 422 U.S. at 40.
From our examination of the above opinions concerning ex parte communications with the jury, we are able to discern several factors significant in determining whether such an error may be declared harmless beyond a reasonable doubt: (1) the overall strength of the prosecution’s case, see High, 260 Kan. at 486; Crease, 252 Kan. at 336; (2) whether an objection was lodged, High, 260 Kan. at 486; (3) whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury, Rushen, 464 U.S. at 121; Rogers, 422 U.S. at 40-41; High, 260 Kan. at 486; and (4) the ability of the post-trial remedy to mitigate the constitutional error. Rushen, 464 U.S. at 120-21. Ultimately, our decision must revolve around whether we are able to decide beyond a reasonable doubt that the error had little, if any, likelihood of having changed the result of the trial. See Crease, 252 Kan. at 335-36.
(1) The overall strength of the prosecution’s case.
The evidence in this case was not overwhelming. In fact it was balanced. As noted by the dissent in the Court of Appeals’ opinion, this case boiled down to whether the juiy would believe A.C. beyond a reasonable doubt. Her credibility was the central issue for the jury. See 24 Kan. App. 2d at 931.
While the State’s case consumed 130 pages of the record, and the defendant’s only 16 pages, the essence of the State’s case was the credibility of A.C. Nine months after the event, A.C. was questioned by her mother concerning the incident. A.C. began to cry and related that she had been abused by the defendant. The idea of sexual abuse was suggested by Merrick in a discussion with the victim’s grandmother. Just prior to raising this idea Merrick had been involved in a falling-out with the defendant.
The State called A.C.’s grandmother and mother, A.C. herself, and an SRS social worker who had interviewed A.C. In addition, the videotaped interview between A.C. and thé social worker was played for the jury. However, Chief Whinery, to whom A.C. related her story soon after talking to her mother, was not called to testily.
The defendant testified and denied any wrong doing with the victim on the day in question. He offered an explanation of his conduct and was the only witness called for the defense. There was very little factual detail given as to the circumstances surrounding the sexual abuse. The incident was reported 9 months after it occurred, and there was no physical or medical evidence corroborating the incident. Thus, it was a question of A.C.’s word as compared to that of the defendant. In this respect, the case differs significantly from both High and Crease, where the evidence of guilt was overwhelming.
(2) Whether an objection was lodged.
In addressing this question the Court of Appeals relied heavily upon the findings of the hearing judge who presided over the motion for new trial. The Court of Appeals concluded:
“After a hearing on the matter, the district court denied McGinnes’ motion for a new trial. The court found defense counsel was informed immediately of the ex parte communication but no objection was made and defendant made no effort to voir dire the jury. Additionally, the court could not find anything prejudicial or objectionable in the trial court’s supplemental instruction, and even after the instruction, defense counsel again made no effort to voir dire the jury to see if a problem existed.” 24 Kan. App. 2d at 925.
However, the above conclusions by the trial court and relied upon by the Court of Appeals are not supported in the record. The ex parte communication and the advice to counsel that such occurred was off the record. While the trial judge did notify counsel as to its ex parte communication with the jury, the time of notification is not established. Further, it is difficult to understand what an objection by the defendant would have accomplished. The trial judge supplied to the juiy the reason why Chief Whinery did not appear as a witness and instructed the jury that such was not to be considered by the jury. Neither voir dire by defense counsel nor objection could change the information or instruction conveyed to the jury by the trial judge’s ex parte communication.
The Court of Appeals also noted:
“At oral argument on this appeal, we explored this issue in depth. Had the jury requested through an appropriate communication with the court to know why Whinery had not testified, a reply similar to the two comments by the trial judge would have been appropriate. Therefore, we do not find prejudice.” 24 Kan. App. 2d 921, 929, 955 P.2d 1325 (1998).
The above conclusion is speculation. Just as likely, the defense, upon being advised under proper procedure of the existence of a jury question as to why Chief Whinery had not testified, may well have objected to any information being given to the jury on this point. Without any evidence before the jury as to the reason, it would have been inappropriate for the trial judge to impart that information over objection to the jury. Defense counsel may have also requested an instruction that the State’s failure to call Chief Whinery as a witness raises an inference that his testimony would not have been helpful to the State. See State v. Wilkins, 215 Kan. 145, 150-51, 523 P. 2d 728 (1974), and cases cited therein (the missing witness rule).
(3) Whether the ex parte communication concerned a critical aspect of the trial or rather involved an innocuous and insignificant matter, and the manner in which it was conveyed to the jury.
(a) Critical Aspect
Unlike the situation in High, the communication by the trial judge with the jury during its deliberation in the instant case concerned a critical aspect of the trial. The sole question before the jury was the credibility of the victim as compared to the credibility of the defendant. The failure of the State to call Chief Whinery, a witness who had an opportunity to view and discuss the incident with the victim very shortly after the initial report of this incident, was significant. The trial judge without invitation and off the record apparently advised the jury that Chief Whineiy was away at a training session and could not be available for trial. Additionally, the trial judge instructed the jurors that it was of no concern of theirs that Chief Whinery was absent. The best advice under the circumstances would have been no advice. Instead, the trial judge, without a record and without a request, supplied evidence not introduced at trial for the jury’s consideration and instructed it on the law of the missing witness.
The effect of this erroneous advisement by the trial judge was enhanced due to the stage at which it occurred. We may assume that the jury was having difficulty in deliberations, for they requested a readback of testimony. It is significant that the readback request was not for the testimony of the victim but instead for the testimony of the mother who first heard the victim’s statement. It is certainly possible that the juiy was concerned about A.C.’s original story and wondered why Chief Whinery, who was the second person to hear the story, did not testify.
(b) The manner of communication.
The manner in which the trial judge conveyed the communication to the jury is troubling. A trial judge occupies a prominent position in any criminal trial. A statement by a trial judge to the jury is by and large received without question. In recognition of the significant role a judge plays in the trial of a case, PIK instruc tions are generally given to the jury so that it does not interpret a judge’s rulings as an endorsement of either parties’ case. See PIK Crim. 3d 51.05. In this case, the trial judge departed from his role. He supplied evidence to the jury that had not been admitted at trial, thereby encouraging the jury to disregard the lack of evidence from an important source.
The Court of Appeals concluded:
“We believe no actual prejudice has been shown. It is of importance in the factual situation here that the nonappearance of Whinery was apparently not an issue of significance. McGinnes does not claim, and the record does not reflect, that Whinery’s testimony, or lack thereof, was of concern to the defense. Had the defense wanted Whinery present for the trial, he would have been subject to compulsory process. Also, the defense did not argue at trial to the jury or to the court that Whinery’s not testifying was in any way significant.” 24 Kan. App. 2d at 928.
Again the record does not support the above conclusion. Both the jury, as indicated by the juror’s question, and the trial judge, by its ex parte communication, considered the absence of testimony from Whinery significant. From the standpoint of the defendant, the lack of testimony from a professional law enforcement officer who interviewed the victim within minutes after she reported it to her mother was significant.
While the defendant could have subpoenaed this witness, this begs the question, for the value of the witness to the defense was the witness’ absence. Once the ex parte communication occurred, the defense was foreclosed from suggesting that there was another reason why Chief Whinery was not called by the State.
The record simply does not support the Court of Appeals’ conclusion that Chief Whinery’s testimony was insignificant. In fact, the only evidence suggests otherwise. The jury was concerned. The trial judge was concerned enough that he volunteered the reason why Chief Whinery was absent. By his action, the trial judge foreclosed any favorable inference Chief Whinery’s absence may have had to the defendant.
(4) The ability of the post-trial remedy to mitigate the constitutional error.
In Lovely, 237 Kan. at 845, we examined the totality of the circumstances in regard to an alleged error involving the bailiff’s comment to the juiy during its deliberation. In the case at hand, the hearing judge presiding over the motion for new trial based his conclusion with regard to prejudice on the evidence presented on the motion for a new trial. He specifically found that he had no obligation to read the entire record. However, the very nature of the error alleged requires that a determination of whether the error is harmless beyond a reasonable doubt rests upon the totality of circumstances.
It is impossible to assess prejudice in this case without a consideration of the entire record. To the extent that the hearing judge did not consider the entire record in his determination and to the extent the Court of Appeals relied upon the findings of the trial court, both the hearing judge and the Court of Appeals erred.
While a post-trial hearing may in many cases provide a basis for diminishing the impact of the constitutional error, in this case it did not. Newly appointed defense counsel subpoenaed the trial judge, but because of circumstances involving injury to a family member or the judge, the district court relieved the trial judge from the subpoena. Even though the substance of a telephone conference with the trial judge and counsel was admitted, we are no more enlightened about what occurred during the conversation the judge had with the deliberating jury than was the district court that decided no prejudice had occurred. While there is hearsay testimony concerning the effect of the trial court’s communication with the jurors, that evidence is not sufficient to convince us that the defendant’s rights in this case were not prejudiced. The orderly conduct of the trial requires that the trial judge refrain from discussing or providing the jurors with evidence during their deliberations. The method by which this is accomplished is through written communication from the jurors to the judge, who with consultation of the parties, proceeds on the record to examine the matter.
The trial judge’s sua sponte supplemental instruction.
The Court of Appeals concluded that it was error for the trial court to give the jury supplemental instructions without consulting with both counsel. On this point, we agree. However, the Court of Appeals concluded that such instructions did not prejudice the defendant in that they simply reiterated several of the instructions given during the judge’s charge to the jury. 24 Kan. App. 2d at 929.
The dissent, however, did not view the supplemental instruction as separate and distinct from the initial ex parte communication: “There is no doubt in my mind that the above supplemental instruction was related to the previous ex parte communication [the trial judge] had with the jury and compounded the damage that had been done.” 24 Kan. App. 2d at 932. We agree.
Sometime after the trial judge erroneously instructed the jurors that they should not concern themselves with Chief Whinery’s absence, the jury requested a readback of A.C.’s mother’s testimony. Chief Whinery and A.C.’s mother were the only persons to question A.C. on the day she reported the incident. It is, we believe, significant that no request was made for A.C.’s testimony, but rather for the testimony of a witness who had heard what A.C. said when she first reported the incident. Immediately after testimony of the mother was read back the trial judge without consulting counsel instructed the jury that “if you will concentrate on [the testimony that you have heard] and on what has been presented and not allow yourselves to be diverted or not try to speculate on things that have not been presented, I think it will be helpful to you in arriving at a decision.”
The ex parte communication and the above quoted instruction are related in time. Both happened within the first 3 hours of jury deliberations and must be reviewed together as part of the whole. When reviewed in this context, we agree with the dissent that the sua sponte instruction reinforced the trial judge’s earlier ex parte communication.
CONCLUSION
We are unable in this case to declare beyond a reasonable doubt that the ex parte communication reinforced by the erroneous supplemental sua sponte instruction had little, if any, likelihood of having changed the result of the trial. Some of the comments this court made in the case of Howard v. Miller, 207 Kan. 246, 485 P.2d 199 (1971), apply with equal force to the case we now consider. While Howard differs factually from the case at hand, it too involves a trial court’s ex parte instruction to a deliberating jury. We noted:
“Since territorial days we have continuously had statutes providing that communication between court and jury as to the law in the case shall take place in the presence of, or after notice to, the parties or their counsel. Despite this plain injunction against private communication between judge and jury, our reports reflect many instances of its disregard, which practice has always been held to be erroneous. [Citation omitted.]” 207 Kan. at 249.
Quoting from the Massachusetts Supreme Court case Lewis v. Lewis, 220 Mass. 364, 107 N.E. 970 (1915), this court noted:
“ ‘Correct instructions upon matters of law are of the very substance of jury trial at common law. . . . Secret instructions or clandestine communications, no matter if given with the best of intentions, contravene this fundamental and essential conception of common law trial by jury.’ ” 207 Kan. at 252.
In the case at hand, the overall strength of the prosecution’s case was balanced and the evidence was far from overwhelming. The ex parte communication concerned a critical aspect of the trial and bore directly on the issue of credibility. Furthermore, we note that substantial prejudice more than likely flowed from the comments of the trial judge. This notion is reinforced by the nature of the information conveyed to the jury, i.e., the factual information not presented during the trial which provided an excuse for the nonappearance of a critical witness and an instruction to the jury that it should disregard the fact that the witness was not called. In addition, and particularly important to our resolution of this issue, is the manner in which this information was conveyed. We have found no other Kansas case where a trial judge, without invitation or without any question imposed directly to him or her either orally or in writing, interrupted a deliberating jury with comments bearing on the question of guilt or innocence.
The ex parte communication contravened the statutory law of the state of Kansas and the defendant’s fundamental constitutional right. We agree with Judge Knudson’s dissenting opinion that under the totality of circumstances in this case “[i]t is impossible ... to conclude that John McGinnes received a fair trial.” 24 Kan. App. 2d at 930.
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The opinion of the court was delivered by
Abbott, J.:
The above cases have been consolidated for appeal. Both cases involve the estate of James Daniel Henry Reynolds, Jr. Case No. 79,619 involves K.S.A. 59-2239 (the nonclaim statute) and the trial court’s refusal to enforce a New York court’s judgment against the estate of a Kansas decedent, James Daniel Henry Reyn olds, Jr. Case No. 79,953 is an appeal from the trial court’s order allowing an interim executor and attorney fees. The appellant, Marine Midland Bank, N.A., (Marine) is the successor in interest to Integrated Resources, Inc. (Integrated).
On August 31, 1986, the decedent executed a negotiable promissory note, together with a subscription agreement and security agreement, for the purchase of an interest in a Connecticut limited partnership. The contract provided New York law would govern any action brought to enforce the contract’s provisions. The limited partnership owned a shopping center in Brentwood, Tennessee. Integrated was the holder of the promissory note. Five months later, on the date the first payment was due under the note, the decedent was killed in an airplane accident.
The decedent was a resident of Johnson County, Kansas. A petition for probate of will and issuance of letters testamentary was filed in the Johnson County District Court. An order for hearing and for notice to creditors was entered. Pursuant to the will; United Missouri Bank, N.A., (UMB) was appointed executor of the estate.
On February 26, 1987, less than 1 month after decedent’s death, UMB wrote to Integrated and advised it of the death and asked that any action on the payments of the note be postponed for 30 days until an executor could be appointed and sufficient assets gathered to make the payment. In March 1987, UMB published a “Notice to Creditors” in a Kansas semi-weekly newspaper, informing creditors of the estate that they must exhibit their demands by filing a claim with the Kansas probate court by July 1987 or their claims would be barred under the Kansas nonclaim statute then in effect, K.S.A. 1986 Supp. 59-2239.
In 1987, there was no statutory or case law requiring that a copy of the “Notice to Creditors” be mailed to creditors whose names and addresses were known or reasonably ascertainable. It was not until 1989 that Kansas followed Tulsa Professional Collection Services v. Pope, 485 U.S. 478, 99 L. Ed. 2d 565, 108 S. Ct. 1340 (1988), in the case of In re Estate of McDowell, 245 Kan. 278, 280, 777 P.2d 826 (1989). That same year, the.Kansas Legislature amended the nonclaim statute to comport with Tulsa and McDowell. All parties concede no “Notice to Creditors” was mailed to Integrated, nor was the nonclaim statute drawn to Integrated’s attention by UMB prior to the expiration of the time allowed for filing of claims against the estate.
On April 6, 1987, UMB again contacted Integrated and asked it to “hold off any action” on payments due on the note. On May 28, 1987, the overdue first payment, along with a late charge, was made to Integrated. Twenty-five payments were due on the note. UMB, as executor, made 18 payments between May 1987 and July 1991. The shopping center became bankrupt, and the investment became worthless.
In October 1987, the negotiable promissory note was assigned by Integrated to Marine. It is of no importance to this decision, but the partnership apparently assigned the note and the security agreement to a third party who assigned them to Marine. After the investment became worthless, UMB stopped making payments because no claim had ever been filed against the estate and took the position that Marine’s claim was barred by the Kansas nonclaim statute.
Approximately 2 years after UMB stopped payments, Marine commenced an action in the New York Supreme Court (the equivalent of our Kansas district courts). That action was dismissed for Marine’s failure to file a claim in Kansas in a timely fashion. That decision was appealed to the Appellate Division of the New York Supreme Court (comparable to our Kansas Court of Appeals). That court ruled that the choice of law provision in the limited partnership documents made New York law applicable, and, hence, there was no need to be concerned about the Kansas nonclaim statute. The Appellate Division of the New York Supreme Court also concluded that the same contractual choice of law provision gave it both personal and subject matter jurisdiction. The New York Court of Appeals (comparable to our Kansas Supreme Court) denied the estate’s petition to review the decision on May 28, 1996. Marine Midland Bank v. UMB, 223 App. Div. 2d 119, 643 N.Y.S.2d 528 (1996). Judgment was subsequently entered in the amount of $123,498.21 on September 4, 1996.
This judgment was filed in the Johnson County District Court on September 10, 1996. Marine then, as a judgment creditor seek ing to enforce its New York judgment against the assets of the estate, applied to the Johnson County Probate Court in the estate proceeding.
Judge Samuel K. Bruner, the trial judge, stated in his opinion that the “estate does not contest the validity of the judgment but argues that same is not enforceable against assets of the estate.” He found that “[n]o previous demand had been filed by either Integrated or [Marine], contingent or otherwise, in the estate . . . .”
Judge Bruner also held:
“I have reviewed the various arguments and precedent presented in trial briefs to the Court. In my review I became convinced that the issue that was determinative was the matter of the statute of limitations imposed by Kansas law in decedent’s estates. Resolution of the controversy is made more complex due to the time frame within which the underlying facts evolved.
“[Tulsa Professional Collection Services] v. Pope, 485 U.S. 478 (1989), set off a flurry of state legislative action and the always certain judicial determinations followed. We know that Pope is entitled to retroactive application. We know that actual notice to known or reasonably ascertainable creditors is required. We know that can be accomplished by mailing to the creditor a copy of the published notice to creditors and filing an affidavit of service. We also know that mailing of the newspaper clipping is not the only manner in which the notice can be conveyed. We also have some reason to believe that the sophistication of the creditor is of import. We have learned more about the relationship between Chapter 60 and Chapter 59 in the resulting litigation. [Marine] and Integrated were aware of the death of Dr. Reynolds and the procedures being undertaken in Kansas by the nominee of his Last Will and Testament before the case was commenced in Kansas. After appointment and qualification as executor, the creditor received and credited over $100,000.00 in payment from [Marine] yet never filed a contingent demand in this Court.
“The fact that the estate of Dr. Reynolds remains open and has assets that could apply to the judgment is of no consequence in this controversy. That fact was occasioned by separate litigation between the estate and Dr. Reynolds’ former employer and the rigors of other administrative problems.
“[Marine] argues that after receipt of over $100,000.00 in periodic payments made until 1991 the estate is estopped from arguing the statute of limitations. The executor was protecting an asset of Dr. Reynolds and until the asset proved to be worthless could have reasonably been expected to continue payments. To have continued to make payments beyond die time of Integrated’s insolvency would have been at best unwise and more likely an imprudent fiduciary act.
“It is my conclusion that a sophisticated creditor had actual notice of the death of the debtor and the probate proceeding in the domicile of the decedent and failed to file a demand within the appropriate statute of limitations and is therefore barred from asserting the judgment as a claim against the estate.”
Judge Bruner later allowed the payment of fees and expenses to the executor and various law firms over Marine’s written and oral objections. The funds in the estate were insufficient to pay Marine’s judgment prior to the allowance of executor and attorney fees and expenses. Marine separately appealed Judge Bruner’s order denying the enforcement of Marine’s New York judgment and the order allowing the payment of fees and expenses. Upon consolidation, Marine’s appeal was transferred to this court at Marine’s request pursuant to Rule 8.02 (1998 Kan. Ct. R. Annot. 33) and K.S.A. 20-3017.
Marine raises three issues on appeal. They are:
I.The trial court erred when it failed to give full faith and credit to the New York judgment.
II.The decision of the trial court violated the Due Process Clause because the Kansas nonclaim statute has been found to be unconstitutional.
III.The trial court erred in granting interim expenses because most of the expenses were incurred due to the imprudent actions of the executor in failing to make the final payments on the note.
We are aware of the traditional rules concerning the Full Faith and Credit Clause of Article IV, Section 1 of the United States Constitution and specifically the general rule that “a judgment is entitled to full faith and credit — even as to questions of jurisdiction — when the second court’s inquiry discloses that those questions have been fully and fairly litigated and finally decided in the court which rendered the original judgment.” Durfee v. Duke, 375 U.S. 106, 111, 11 L. Ed. 2d 186, 84 S. Ct. 242 (1963).
The Durfee court noted there are exceptions to that rule. 375 U.S. at 114. Restatement (First) of Conflict of Laws § 451(2) (1948 Supp.) states:
“Where a court has jurisdiction over the parties and determines that it has jurisdiction over the subject matter, the parties cannot collaterally attack the judgment on the ground that the court did not have jurisdiction over the subject matter, unless the policy underlying the doctrine of res judicata is outweighed by tire policy against permitting the court to act beyond its jurisdiction. Among the factors appropriate to be considered in determining that collateral attack should be allowed are that
(a) the lack of jurisdiction over the subject matter was clear;
(b) the determination as to the jurisdiction depended upon a question of law rather than of fact;
(c) the court was one of limited and not of general jurisdiction;
(d) the question of jurisdiction was not actually litigated;
(e) the policy against the court’s acting beyond its jurisdiction is strong.”
See Restatement (First) of Conflict of Laws § 306 (1948 Supp.). Even more persuasive is Restatement (First) of Conflict of Laws § 513, which provides:
“The appearance of a foreign administrator in a suit brought against him in his representative capacity or in an action begun against the decedent in his lifetime and continued against such foreign administrator, does not render a judgment in such suit provable there or elsewhere as a claim against the estate.”
The comment to § 513 provides the rationale for this rule and states:
“While the appearance of an individual in an action gives a court personal jurisdiction over him . . . , the administrator, whose duty it is to administer the estate of the decedent under the control of the court which appointed him, cannot by appearance in an action elsewhere, subject the disposition of the estate which he is administering to the orders of a foreign court.”
In the case of In re Estate of Watson, 21 Kan. App. 2d 133, Syl. ¶ 5, 896 P.2d 401 (1995), the court stated:
“K.S.A. 59-2239 is a special statute of limitations. The words ‘all demands' are all-inclusive and include claims and demands of every type and character against a decedent’s estate except for those particular cases where the statute expressly provides otherwise. A party seeking to remove something from a decedent’s estate must comply with the nonclaim statute in the absence of an express statutoiy exception such as set forth in K.S.A. 59-2239(2).”
Also, in Union Nat’l Bank & Trust Co. v. Estate of Werning, 233 Kan. 671, 675, 665 P.2d 192 (1983), the court stated:
“ ‘All demands’ is certainly broad language. As noted in 3 Bartlett, Kansas Probate Law and Practice § 1316 (Rev. ed. 1953):
‘The language of the nonclaim statute is clear, unambiguous, and comprehensive. Words more significant to express every demand to which a personal representative can or ought to respond, or which can charge the assets in his hands subject to administration, or more expressive of every liability, resting upon the decedent, could not have been employed.’ ”
We believe the full faith and credit argument to be controlled by the specific rules of law of probate and decedent’s estates, rather than in terms of subject matter jurisdiction generally. Also, the defense of a nonclaim statute generally cannot be waived by the executor. Gano Farms, Inc. v. Estate of Kleweno, 2 Kan. App. 2d 506, 508, 582 P.2d 742, rev. denied 225 Kan. 844 (1978).
We thus hold that the trial court did not err in holding that the Full Faith and Credit Clause did not require the executor to pay the judgment out of the assets of the estate. The issue then becomes whether the trial court correctly decided that collection of the judgment is barred by the Kansas nonclaim statute.
K.S.A. 59-2239 provides, in pertinent part:
“(1) All demands, including demands of the state, against a decedent’s estate, whether due or to become due, whether absolute or contingent, including any demand arising from or out of any statutory liability of decedent or on account of or arising from any liability as surety, guarantor or indemnitor, and including tire individual demands of executors and administrators, not exhibited as required by this act within four months after the date of the first published notice to creditors as herein provided, shall be forever barred from payment, except that the provisions of the testator’s will requiring the payment of a demand exhibited later shall control.”
Nonclaim statutes are considered jurisdictional, and a creditor’s noncompliance with the nonclaim statute means that the district court should disallow any claim not filed within the time limit. This rule is inapplicable, however, if the court finds fraud or other unconscionable conduct. Salvation Army v. Estate of Pryor, 1 Kan. App. 2d 592, 570 P.2d 1380 (1977).
In Egnatic v. Wollard, 156 Kan. 843, 856, 137 P.2d 188 (1943), the court stated:
“[W]hen a person dies his individual capacity to respond in damages for his torts, to pay his debts, to carry out his contracts, and to distribute his estate ceases. Thereafter his financial obligations must be met by his estate. One who deems himself entitled to a part or all of such an estate, whether the right contended for is founded in tort, or upon oral or written contract, or under the will of the decedent, or under the statute of intestate succession, must recover, if at all, from tire decedent’s estate. Under our probate code the probate court is made the forum for the transaction of this business, and it is given original jurisdiction to probate the will, if decedent left one, to appoint an executor or an administrator of his estate, to require an inventory and appraisement of the assets of the estate, to hear the petition of anyone who claims all or any part of the estate, after due notice to all parties interested so each may have his day in court, and ultimately to settle the accounts of the executor or administrator and to disburse the estate to those legally entitled thereto.”
The legislature amended K.S.A. 59-709(b) in 1989 in response to Tulsa Professional Collection Services v. Pope, 485 U.S. 478. In Pope, the Court analyzed whether an Oklahoma statute providing for notification to creditors solely by publication satisfied the Due Process Clause. Oklahoma’s nonclaim statute required the executor of an estate to give notice to the deceased’s creditors that any claim against the estate must be presented to the executor within 2 months of the date of the first notice by publication. The Oklahoma statute required publication in some newspaper in the county once each week for 2 consecutive weeks.
The Pope Court acknowledged that most states had provisions whereby creditors are to be notified of the requirement to file claims imposed by the nonclaim statutes solely by publication, but held that “a requirement of actual notice to known or reasonably ascertainable creditors is not so cumbersome as to unduly hinder the dispatch with which probate proceedings are conducted.” 485 U.S. at 490. Thus, if a creditor’s identity is known or reasonably ascertainable, the Due Process Clause of the United States Constitution requires that the creditor be given notice by mail or such other means as to insure actual notice. 478 U.S. at 491.
The trial court correctly acknowledged that Pope is entitled to retroactive application, and, thus, actual notice to known or reasonably ascertainable creditors was required. Obviously, Marine was a known creditor. The trial court found that the notice requirement had been satisfied because Marine and Integrated were aware of Reynolds’ death and they were aware of “the procedures being undertaken in Kansas by the nominee of his Last Will and Testament.” Further, the trial court ruled that Marine was a sophisticated creditor having “actual notice of the death of the debtor and the probate proceeding in the domicile of the decedent and failed to file a demand within the appropriate statute of limitations and is therefore barred from asserting the judgment as a claim against the estate.”
In the case of In re Estate of Pennington, 16 Kan. App. 2d 792, 829 P.2d 618 (1992), Floyd Pennington died in March 1990, his will was admitted to probate, and notices were given to creditors by publication as mandated by statute. Also, notice was mailed to known creditors by the administrators, as required by K.S.A. 1991 Supp. 59-709(b). Prior to his death, Pennington had been the subject of a guardianship and conservatorship. One of the conservators was also one of the administrators. Chester Pennington, decedent’s nephew, filed an oral claim in the guardianship, based on a 1969 contract. An interim report to the court advising the court of Chester’s oral claim was filed in November 1989. The administrators did not deny that they knew Chester wanted to pursue a claim based on the 1969 contract. They asserted, however, that they did not mail notice to him because they deemed that he only had a conjectural claim. The trial court allowed Chester to file a claim out of time, and the administrators appealed on the behalf of Pennington’s estate.
The administrators asserted that Chester “knew of his uncle’s death and attended all of the probate hearings and, therefore, had the actual notice that K.S.A. 1991 Supp. 59-2236(b) requires.” 16 Kan. App. 2d at 793. The Pennington court ruled that “[u]nder K.S.A. 1991 Supp. 59-709(b) and K.S.A. 1991 Supp. 59-2236(b), administrators are not allowed to determine which claims against an estate may or may not be valid for purposes of giving notice to creditors.” 16 Kan. App. 2d 792, Syl. ¶ 1. The court explained:
“Chester was a known person. His address was known to the administrators. He had personally talked to the administrators about his claim. He was not a contingent beneficiary or a presumptive remainderman. While his status did not amount to a judgment creditor, Chester and his claim were reasonably ascertainable. The United States Supreme Court has repeatedly held that ‘[n]oüce by mail or other means as certain to ensure actual notice is a minimum constitutional precondition to a proceeding which will adversely affect die liberty or property interest of any party, whether unlettered or well versed in commercial practice, if its name and address are reasonably ascertainable.’ [Mennonite Board of Missions v. Adams, 462 U.S. 791, 800, 77 L. Ed. 2d 1383, 103 S. Ct. 3530 (1983)].” (Emphasis added.) 16 Kan. App. 2d at 797.
The Pennington court held:
“[L]et us clearly state that actual notice is not limited to notice by mail. If the administrators had orally notified Chester that he only had four months to file his claim from the date of the first publication and given him the notice that is required to be conveyed by K.S.A. 1991 Supp. 59-2236(a), that probably would comport with tire statutory definition of actual notice in K.S.A. 1991 Supp. 59-2236(b). However, there does not appear to be any evidence in the record that the administrators did in fact give oral notice to Chester. The claimant asserts in his brief that no oral notice was given to him that his claim had to be filed within four months of the publication date. The administrators do not contest that.
“The administrators do suggest no statute requires that the notice to known creditors contain the time limit. K.S.A. 1991 Supp. 59-2236(a) specifies what must be included in the publication notice and (b) states the actual notice that is required by 59-709(b) may include, but is not limited to, mailing a copy of the published notice to the creditors. The reasonable construction of that statute would suggest that actual notice needs to include what the publication notice is required to include.
“Certainly, if we go back to Pope to determine what the Supreme Court meant by actual notice, it would appear it found that known or reasonably ascertainable creditors must be notified there is a legal proceeding in a certain court which may affect their interest and in which they have only a certain time to present their objections and/or claims. It is not unreasonable to conclude that K.S.A. 1991 Supp. 59-2236(b) and/or K.S.A. 1991 Supp. 59-709(b) requires that actual notice follow what is required by Pope." 16 Kan. App. 2d at 798.
This court granted a petition for review of Pennington in June 1992, but before the court heard arguments in the case, the parties settled. Thus, a motion to dismiss the petition for review was granted because the settlement rendered moot the issues raised on appeal.
UMB cites the case of In re Estate of Ragsdale, 19 Kan. App. 2d 1084, 879 P.2d 1145 (1994), as authority that UMB was not required to do anything more than it did to provide notice to the known creditor. The Ragsdale court stated:
“[A]t the time the original notice to creditors was published, [claimant] could not have been a reasonably ascertainable creditor as defined in Pope and Pennington as far as actual notice is concerned. In Pennington, the claimant knew of the death of the decedent, had attended some of the hearings, and was unrepresented. In this case, [claimant] had been in the case from the outset, had the guiding hand of counsel, was involved in numerous hearings, and had herself caused a notice to creditors to be published.
“Under the facts as exist here, we hold that at the time the notice to creditors was published, [claimant] was not a reasonably ascertainable creditor and, further, that [claimant] had actual knowledge of the notice to creditors. Her failure to timely file the claim was not the result of the insufficiency of the actual notice but the result of her failure to timely file a claim on the notice received.” (Emphasis added.) 19 Kan. App. 2d at 1086.
We do not see a conflict between Pennington and Ragsdale and adopt the reasoning and law therein. Here, the record is void of any evidence that Marine was ever notified that it had 4 months to file a claim. Clearly, Marine was notified years before it filed anything against the estate that UMB was not going to pay a debt owed by the decedent because Marine had not filed a claim in the estate within 4 months as set forth in the publication notice. The fact that Marine knew UMB was refusing to pay the claim on the grounds that the nonclaim statute had run is not the same as giving notice of a date when the nonclaim statute will bar the claim. We hold that a known or reasonably ascertainable creditor of an estate must receive notice that is reasonably calculated under the circumstances to apprise an interested party of the pendency of the action and afford the party an opportunity to present its claim. See Mullane v. Central Hanover Tr. Co., 339 U.S. 306, 314, 94 L. Ed. 865, 70 S. Ct. 652 (1950). Notice of the 4-month statute of limitations is an integral part of the notice requirement. Failure to give a known creditor notice of the statute of limitations, in the absence of the creditor having actual knowledge of the statutory period under the nonclaim statute, will not bar the claim until actual notice is given to the known or reasonably ascertainable creditor. Thus, Marine’s claim is not time barred because UMB has never given the constitutionally required notice.
FEES AND EXPENSES
The standard of appellate review in determining whether the trial court erred in granting the allowance of interim administration expenses is whether the trial court’s ruling is supported by substantial competent evidence. Thus,
“[w]here the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court’s conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, ‘substantial evidence’ is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.” Tucker v. Hugoton Energy Corp., 253 Kan. 373, 377, 855 P.2d 929 (1993).
K.S.A. 59-1717 provides:
“Every fiduciary shall be allowed his or her necessary expenses incurred in the execution of his or her trust, and shall have such compensation for services and those of his or her attorneys as shall be just and reasonable. At any time during administration the fiduciary may apply to die court for an allowance upon his or her compensation and upon attorneys’ fees.”
In its objections to the petition for allowance of interim administration fees, Marine claimed that if the executor had properly managed the estate, much of the expenses for which the executor requested compensation, and all of the attorneys’ expenses sought for UMB’s litigation of Marine’s claim in New York, would not have been necessary. Thus, Marine argued it was the executor’s act of discontinuing payments on the note which caused acceleration of the note and forced Marine to file a lawsuit in New York “to collect the note as well as attorneys’ fees and costs. Because it was the conduct of the executor that caused much of the fees to be incurred, the executor should not be paid as requested.”
Marine further argued in its objections to the allowance of fees that
“the note in question is binding on the heirs of Dr. Reynolds. Now that the executor has caused the note to be accelerated, [Marine] will be obligated to institute litigation against the heirs to collect any deficiency that is not collected in this case. But for the conduct of the executor, no such suit would ever be necessary. But for the litigation instigated by the executor’s failure to continue paying the note, there would have been sufficient assets in the estate to pay the note in full.”
The trial court, however, did not find that the executor had failed to perform the duties imposed on him by ceasing payment on the note. Marine asserts that this finding was error because Mr. Buchmann, one of the attorneys involved in representing the estate, testified that he had discussed the provisions of the promissory note with the executor, and that they were both aware that ceasing to make payments on the note would expose the estate to the acceleration of the balance and a 2% interest penalty per month, in addition to potential litigation expenses. Marine contends that the executor’s decision to terminate payment on the 19th of 24 payments on the note was an imprudent act, causing the estate to incur additional fees and expenses that would have been unnecessary had the note simply been paid. Thus, Marine concludes that because the New York litigation was engendered by the imprudent acts of the executor, it is inequitable to force Marine to bear the burden of the executor’s acts, and the trial court erred in allowing expenses related to the New York litigation to be paid.
UMB avers that Marine’s claims are not compelling and cites Murdock v. First National Bank, 220 Kan. 459, Syl. ¶ 3, 553 P.2d 876 (1976), in which the court stated:
“An executor has a duty to collect and preserve the assets of a decedent’s estate and in so doing he may employ counsel to assist him. The necessity for the particular legal services and the reasonableness of the amount of compensation to be paid out of the estate are essentially questions of fact for the tribunal authorized to order their allowance. (Following In re Estate of Murdock, 213 Kan. 837, 519 P.2d 108, Syl. ¶ 10.)”
Although the executor and his attorneys knew that they were subjecting the estate to potential litigation and significant cost by discontinuing payment on the note, the executor may have deemed it in the best interests of protecting the estate’s assets to cease payment. Perhaps it was a financially calculated risk to incur the cost of defense, rather than to continue to pay on a note which no longer had any value. Given the testimony of those involved, there is no indication that UMB purposefully subjected the estate to needless costs. Marine shares some of the responsibility for the estate incurring costs to defend the suit, as it should have filed a claim in the estate as opposed to a law suit in New York.
The two individuals who represented the bank’s interest as executor testified that an award of fees in the amount of $6,200 had been granted for the work done relating to Reynolds’ wife’s estate, but that the court had not awarded any compensation for the administration of Reynolds’ estate.
In conclusion, there is substantial competent evidence to support the trial court’s ruling to allow attorney fees and appointment of an interim executor. Substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion, and a reasonable person could find such evidence to support the trial court’s conclusion that the estate should pay the requested fees.
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The opinion of the court was delivered by
Six, J.:
This is a condemnation case. Wal-Mart Properties, Inc. (Wal-Mart) appeals from an adverse condemnation award following a highway expansion project in Wichita. The court-appointed appraisers awarded Wal-Mart $128,904 in damages after completion of the project. The City of Wichita (City) appealed the award to the district court. The parties stipulated to the essential facts and asked the district court to rule as a matter of law on whether loss of access and other items of damages are proper K.S.A. 26-513(d) considerations.
The district court: (1) ruled such considerations were improper, (2) granted summary judgment in favor of the City, and (3) held as a matter of law (a) the changes in access were not unreasonable; (b) Wal-Mart had no right to continuing view by the public; and (c) there was no taking of access.
Relying solely on the City’s valuation of damages ($57,800) the district court entered judgment against Wal-Mart in the amount of $71,104 (the difference between the original condemnation award of $128,904 and the City’s $57,800 valuation). Finding no error, we affirm.
Our jurisdiction is under K.S.A. 26-504 (an appeal from a final order in an eminent domain proceeding).
We consider two related issues:
(1) Did the district court err by ruling Wal-Mart’s expert witnesses could not consider impairment of access and view, inconvenience, change of grade, and interference with the productive use of the subject property in assessing damages under K.S.A. 26-513(d)? The answer is, “No.”
(2) Are the alleged damages to Wal-Mart’s property noncompensable because the City has reasonably exercised its police power? The answer is, “Yes.”
FACTS
In 1995, the City commenced a major highway project on U.S. Highway 54, better known as West Kellogg Street (Kellogg). The project involved converting Kellogg from a four-lane access-controlled highway to a six-lane access-controlled freeway. Kellogg is the major east-west thoroughfare in Wichita. Before the project, Kellogg was an access-controlled highway with two-way frontage roads on both sides.
The Wal-Mart Property - Access Before the Project
Wal-Mart’s property contains approximately 15 acres at the northeast comer of Dugan Street and the north Kellogg frontage road. A Sam’s Wholesale Club (Sam’s) is located there. Before the project, the property had a total of four entrances and exits. (Two driveways leading from the north Kellogg frontage road on the south boundary of the property and two driveways on the west side leading from Dugan Street to Sam’s parking lot.) Dugan Street was an important access point. As a cross street of Kellogg and immediately adjacent to Wal-Mart’s property, the Dugan Street intersection provided the most convenient ingress and egress from Kellogg to Sam’s.
Access After the Project
Sam’s is affected by two factors. First, there is no longer access from Kellogg to Dugan Street. Kellogg is a “fly-over” at Dugan Street, rising some 21 feet above its previous grade. Eastbound traffic cannot access Dugan directly from Kellogg. Second, the frontage roads on either side of Kellogg were converted from two-way roads to one-way roads. The north Kellogg frontage road, which directly abuts Sam’s, runs one way in a westerly direction. The south Kellogg frontage road runs one way in an easterly direction. As a result, eastbound motorists exiting Kellogg west of Sam’s must travel on the south frontage road. From the south frontage road, motorists cannot see Sam’s because Kellogg and its solid concrete supports are between the motorists and the store.
Eastbound traffic from Kellogg is required to enter Sam’s by exiting off of Kellogg to the south using the ramp for Mid-Conti nent Drive. This exit ramp is located 4,620 feet west of Dugan Road and 1,245 feet west of Mid-Continent Drive. At the exit ramp, neither Sam’s nor the Sam’s sign is visible to eastbound traffic. After exiting, traffic must travel on the exit ramp to a stoplight at Mid-Continent Drive. Traffic can then cross Mid-Continent Drive and continue east on the south Kellogg frontage road. To gain entrance to Sam’s, traffic must travel on the south Kellogg frontage road to a stoplight at Dugan Road. From the Dugan Road stoplight, eastbound traffic can then turn left and travel under Kellogg on Dugan to another stoplight, cross the north Kellogg frontage road and, enter Sam’s property from the west.
Eastbound traffic leaving Sam’s must exit to the south on the north frontage road and perform a “Texas U-tum” under the flyover at Dugan. Traffic must then travel on the south frontage road to the east and enter onto Kellogg eastbound.
Westbound traffic on Kellogg must gain entrance to Sam’s by exiting off Kellogg onto the north frontage road exit ramp and traveling 605 feet. Westbound traffic can leave Sam’s by exiting to the west on Dugan, proceeding South to the North frontage road, traveling 5,175 feet west on the north frontage road across two signalized intersections at Mid-Continent Drive and then onto Kellogg. Alternatively, westbound traffic can exit to the south on the north frontage road and then proceed 5,466 feet west across two signalized intersections at Mid-Continent Drive to Kellogg.
The Parties’ Contentions
Wal-Mart contends that as a result of the project: (1) motorists cannot see Sam’s from certain necessary vantage points, (2) motorists will end up passing Sam’s, exiting off of Kellogg, which is now a “fly over,” turning around, and using frontage roads to reach the store (the turn-around adds roughly 3 additional miles in travel), (3) the “circuity of access” and other changes have severely damaged the value of its property.
Wal-Mart supports its contentions by reasoning: (1) under K.S.A. 26-513(d), loss of access, view, and change of grade are proper items of consideration in determining the market value of a given piece of property in takings cases; (2) even if the damages in question are a result of an exercise of the City’s “police power,” the changes in access are unreasonable.
The City counters by observing that motorists do not have to travel any farther than they used to in order to reach Sam’s. If customers exit at the proper time on the Kellogg frontage roads, the distance they travel to Sam’s will be the same as before the project. The City points out that if the travelling public misses the exit once and has to double back to reach Sam’s, the prospective shopper will not do so the next time. According to the City, any limitation of access is a reasonable exercise of the City’s police power and not compensable.
The Permanent and Temporary Easements on Wal-Mart’s Property
Wal-Mart claims damages resulting from: (1) the temporaiy easements taken by the City; and (2) the permanent physical taking of a portion of Wal-Mart’s land.
The temporary easements arise from the City’s occupation of parcels of Sam’s parking lot during the construction process. WalMart argues it was subjected to excessive noise, blowing dust, and rodent infestation. At one point, according to Wal-Mart, the remainder of its parking lot was being used as a public street by consumers trying to reach stores that were inaccessible because the City had blocked off the north Kellogg frontage road. WalMart submitted deposition testimony concerning these damages. However, the district court accepted the City’s argument that inconveniences suffered by landowners during construction are not compensable items of damages.
Wal-Mart’s second claim relates to the permanent easement condemned by the City. The City condemned two strips for the project (one approximately 1.5-feet wide from the south edge of the property along the north frontage road [5,057.59 square feet] and the other, 25-feet wide from Sam’s parking lot along Dugan Road [6,856.26 square feet]). The parties stipulated that there were no issues as to the regularity or legality of the taking.
Three appraisals were submitted to the district court. The first of two from Wal-Mart was by F. Lee Jones, a MAI professional appraiser. (Jones was one of the court-appointed appraisers in the condemnation proceedings.) In Jones’ opinion, the loss of value to Wal-Mart as of the day of the taking was $1,300,000 (more than half of that amount was directly attributable to impairment of access). The second Wal-Mart appraisal came from Steve Lane, a site selector for Wal-Mart properties. In Lane’s opinion, Wal-Mart’s loss in value due to the permanent easement was nearly $1,000,000, and for the temporary easement $100,000. The City’s expert was Lee Zimmerman, also a professional MAI appraiser. Zimmerman said the damages suffered by Wal-Mart totaled $58,400. Zimmerman reasons that the project has not depressed land values in the area; rather it has “made the land even more valuable.”
Procedural History
The district court ordered this case consolidated with two others to determine a common issue of law: “Whether, under the facts in these cases, access to the property remaining is a factor to be considered in determining the value of the property remaining after the taking as provided by K.S.A. 26-513.” ■
Wal-Mart filed two motions to determine legal issues.
The first motion asked the district court to rule with respect to the actual taking of property:
“(1) Has there been an impairment of access or the creation of circuity of travel to these properties by the project?
“(2) If so, are the impairment of access and/or the circuity of travel and the impairment of visibility of the remaining properties as a result of this project factors which must be considered under K.S.A. 26-513(d), or are they noncompensable as a reasonable exercise of the police power?”
The second motion asked the district court to rule whether “the City’s taking of access, view, convenience, and productivity, by means of a temporary construction easement, is compensable under Kansas law.”
The parties entered stipulations of fact and requested the district court to rule as a matter of law. The City submitted an affidavit from Carl Gipson, a city engineer. Wal-Mart complains that the Gipson affidavit contains hearsay statements. The City also sub mitted a certified copy of city council proceedings containing discussion of the project. Wal-Mart objected to the council proceedings as evidence but did not ask the judge to rule on the objections.
The district court relied on the evidence objected to by WalMart. Wal-Mart now argues that we should not consider the evidence on appeal. The disputed evidence relates to the police power justifications for the project, which we address-later in the opinion.
Judge C. Robert Bell ruled in part:
“The Court further finds that West Kellogg or Highway 54 was a limited access facility before the project involved here and the law is clear that all that is required is that the landowner be given reasonable access to his property. Here; all three landowners have the same access to the abutting streets as they did before the condemnation. Therefore, the Court finds that there has been no taking of access.”
After Judge Bell’s ruling, the parties prepared for the pretrial conference. At the pretrial conference, Judge Timothy G. Lahey entered summary judgment in favor of the City. The parties stipulated to facts, with one exception. Wal-Mart contended that an issue of fact existed as to the value of the taking and the amount of damages to be awarded. Judge Lahey excluded the proffered testimony of Wal-Mart’s expert witnesses because, “it takes into account, and is based upon, access, view, convenience, and/or productivity [which] bears no relation to the valuation of the taking and is not admissible.” The only remaining evidence on damages was that submitted by the City.
DISCUSSION
Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 60-256(c). Our standard of review is de novo. See Mark Twain Kansas City Bank v. Kroh Bros. Dev. Co., 250 Kan. 754, Syl. ¶ 2, 863 P.2d 355 (1992). The essential facts here are documented in the parties’ summary judgment submissions. Our standard in reviewing summary judgment is well established. See, e.g., Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
We first consider K.S.A. 26-513(d) and conclude that the district court did not err by excluding the testimony of Wal-Mart’s expert witnesses. (The witnesses could not consider impairment of access and view, inconvenience, change of grade, and interference with the productive use of the subject property in assessing damages.) The interpretation of statutes is a question of law. Our review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
Wal-Mart argues that: (1) compensation is due under the express terms of K.S.A. 26-513(d), (2) there is no dispiute as to whether a taking has occurred, (3) the amount of damages as a result of that taking is the only issue, (4) the claim for loss of access and view is linked to the permanent easements condemned by the City, and (5) damages for access and view must be calculated under K.S.A. 26-513(d).
We employ a three-step analysis. First, we set out Wal-Mart’s K.S.A. 26-513 argument. We next discuss relevant case law. We then examine the term “access.” Access has multiple meanings in condemnation law. Understanding the multiple meanings and the rules that apply in each instance is the key to resolving Wal-Mart’s K.S.A. 26-513 damage claim.
Wal-Mart’s K.S.A. 26-513 Argument
K.S.A. 26-513 states in pertinent part:
“(a) Necessity. Private property shall not be taken or damaged for public use without just compensation.
“(c) Partial taking. If only a part of a tract of land or interest is taken, the compensation and measure of damages are the difference between the value of the entire property or interest immediately before the taking, and the value of that portion of the tract or interest remaining immediately after-the taking.
“(d) Factors to be considered. In ascertaining the amount of compensation and damages as above defined, the following factors, without restriction because of enumeration, shall be given consideration if shown to exist ....
2. Access to the property remaining.
3. Appearance of the property remaining, if appearance is an element of value in connection with any use for which the property is reasonably adaptable.
4. Productivity, convenience, use to be made of the property taken, or use of the property remaining.
5. View, ventilation and light, to the extent that they are beneficial attributes to the use of which the remaining property is devoted or to which it is reasonably adaptable.
6.....[C]hange8 of grade and loss or impairment of access by means of underpass or overpass incidental to changing the character or design of an existing improvement ... if in connection with the taking of additional land and needed to make the change in the improvement.
10. Damage to property abutting on a right-of-way due to change of grade where accompanied by a taking of land.” (Emphasis added.)
Under K.S.A. 26-513, Wal-Mart argues the measure of compensation is the difference between the market value of the entire property immediately before the taking and the market value of the property remaining immediately after the taking (citing PIK Civ. 3d 131.04, 131.05). According to Wal-Mart, loss of access, view, and change in grade are specifically named statutory factors that must be considered in detennining market value after a taking.
Wal-Mart asserts that K.S.A. 26-513(d) provides direct statutory authority for the expert testimony excluded by the district court. Wal-Mart’s two witnesses considered impairment of access and view, inconvenience, loss of productivity, and change of grade in assessing damages.
To emphasize its K.S.A. 26-513 contentions, Wal-Mart draws a distinction between “police power” (inverse condemnation) cases and eminent domain cases. Citing McCall Service Stations, Inc. v. City of Overland Park, 215 Kan. 390, 524 P.2d 1165 (1974), Wal-Mart asserts that the only issue to be determined here, is the amount to be paid for the taking. According to Wal-Mart, the City’s “police power” analysis is “nothing but a mantra” to avoid payment under K.S.A. 26-513(d).
The City’s K.S.A. 26-513 Argument
The City approaches K.S.A. 26-513 by citing Brock v. State Highway Commission, 195 Kan. 361, 404 P.2d 934 (1965), and its progeny. Brock was not a condemnation case. No land was actually taken; thus, there is no K.S.A. 26-513 discussion in Brock. The City ignores, or does not understand, the primary argument advanced by Wal-Mart. The City simply launches into a discussion of case law on the subject of rights of access, reasonableness, and the police power of the City. Although the City does not directly address Wal-Mart’s K.S.A. 26-513 contention, it does rely on relevant case law.
We initially focus on three landowner non-recovery cases, Hales v. City of Kansas City, 248 Kan. 181, 804 P.2d 347 (1991); Hudson v. City of Shawnee, 246 Kan. 395, 790 P.2d 933 (1990); and Small v. Kemp, 240 Kan. 113, 727 P.2d 904 (1986).
In Hales, the City of Kansas City (City) installed raised curbs on Rainbow Boulevard that prevented motorists from making left hand turns from the Hales’ parking lot onto the boulevard. The Hales had the same entrances and exits that they had before the changes, but traffic flow was altered by the City; We upheld summary judgment in favor of the City, saying “limiting the landowners’ ingress and egress to lanes for southbound travel when they formerly had direct access to both the northbound and southbound lanes of traffic, whether by a median strip, one-way street, or no left turn, is a valid exercise of police power and is not compensable.” 248 Kan. at 185. Hales did not address the issue of loss of highway access in terms of diminished market value under K.S.A. 26-513. However, the Hales received no compensation for the altered traffic flow.
In Hudson, the City of Shawnee took both temporary and permanent easements to widen 75th Street. Again, we did not address the issue of loss of highway access under K.S.A. 26-513 in terms of diminished market value of the property. However, in affirming the moderate award of damages in favor of the landowner, we said: “Concurrent with a compensable taking in a condemnation proceeding, the State may validly exercise the police power for traffic control and public safety, for which there can be no compensation, even if it affects the method of ingress and egress to the affected property.” 246 Kan. 397, Syl. ¶ 3.
In Small, the State took a temporary easement on a portion of the landowner’s property to relocate a frontage road. After relocation, the landowner’s animal clinic was more difficult to reach. Before trial, the district court held, as a matter of law, that when the State relocated the frontage road, it was acting under its power of eminent domain (there was a taking of access to the highway). The jury awarded Small $50,000 in damages. K.S.A. 26-513 was discussed. 240 Kan. at 116. We did not discuss the specific paragraphs in K.S.A. 26-513(d) relating to loss of access. However, we held that the diminution of the Small’s property could not be treated as a taking because the State’s action did not disturb Small’s control or use of the property. 240 Kan. at 119. We reversed the district court and remanded for a new trial.
None of these three cases directly addresses the evidentiary question of what factors may properly be considered under K.S.A. 26-513(d). All three cases hold, however, that changes in traffic flow, ingress, and egress, even if concurrent with a compensable taking, are not compensable if the talcing is the result of a reasonable exercise of police power.
“Right of Access” and “Regulation of Traffic Flow” Distinguished
Terminology is important in resolving the issues here. A review of our highway condemnation case law suggests that the term “access” has been frequently misused by both litigants and courts. There is a significant distinction between "right of access” and "regulation of traffic flow.”
“[R]ight of access” is traditionally defined as an abutting landowner’s common-law right of access from the landowner’s property to abutting public roads. Such a right is the right to reasonable, but not unlimited, access to existing and adjacent public roads. Brock, 195 Kan. at 370. When the government actually blocks or takes away existing access to and from property, the landowner is generally entitled to compensation. See McCall, 215 Kan. 390, Syl. ¶ 4 (landowner was compensated when an entrance to business was permanently closed); Kohn Enterprises, Inc. v. City of Overland Park, 221 Kan. 230, 559 P.2d 771 (1977).
“Regulation of traffic flow” or “circuity of access” as it is called by the parties is an entirely separate concept. An abutting owner has no right to the continuation of a flow of traffic from nearby highways to the owner’s property. “Regulation of traffic flow” has also been referred to as “restricted access.” See Garrett v. City of Topeka, 259 Kan. 896, 922, 916 P.2d 21 (1996); Teachers Insurance & Annuity Ass’n of America v. City of Wichita, 221 Kan. 325, 335, 559 P.2d 347 (1977); and Kohn, 221 Kan. at 232. Restricting a landowner’s access to and from the highway through the regulation of traffic flow raises police power questions. Inverse condemnation cases often stem from issues of restricted access — where a new highway is constructed, moved, or traffic is re-routed and adjacent landowners are adversely affected by the changes. See Brock, 195 Kan. 361; Ray v. State Highway Commission, 196 Kan. 13, 410 P.2d 278, cert. denied 385 U.S. 820 (1966); see also Eberth v. Carlson, 266 Kan. 726, 971 P.2d 1182 (1999) (discussing inverse condemnation, right of access, and regulation of traffic flow).
With these distinctions in mind, we now return to Wal-Mart’s K.S.A. 26-513 argument. Wal-Mart claims two types of damages: temporary and permanent.
The Temporary Easements
The City took temporary easements to complete the project, and Wal-Mart is entitled to compensation for that taking. 4 Nichols on Eminent Domain § 12E.01 (3d ed. rev. 1998). The question is whether Wal-Mart is entitled to more than the district court awarded. The answer is, “No.”
Wal-Mart argues the blocking of three of the four entrances to its property, blowing dust, rodent infestation, and construction noise constituted an “ ‘inconvenience’ and impairment of ‘productivity’ ” under K.S.A. 26-513(d)(4). K.S.A. 26-513(d)(4) lists factors which must be taken into consideration in a partial taking. The statute references: “[productivity, convenience, use to be made of the property taken, or use of the property remaining.”
The City counters with Lewis v. Globe Constr. Co., 6 Kan. App. 2d 478, 630 P.2d 179, rev. denied 230 Kan. 818 (1981). In Lewis, landowners complained of temporary damages due to street improvements. In denying compensation, the Court of Appeals quoted Farrell v. Rose, 253 N.Y. 73, 76, 170 N.E. 498 (1930):
“ ‘The highway is continually being dug up for . . . sewers, gas mains, repairs and like. The inconvenience and damage which a property owner suffers from these temporary obstructions are incident to city life and must be endured. The law gives [the adjoining landowner] no right to relief, recognizing that he recoups his damage in the benefit which he shares with the general public in the ultimate improvement which is being made.’ ” 6 Kan. App. 2d at 483.
Lewis concerned blocked access, but not dust, rodents, and construction noise. We find no Kansas case dealing with a landowner s damage claims for dust, rodents, and noise. From the record here, it is not clear whether the dust, noise, and rodent claim was peculiar to Wal-Mart or suffered by everyone during the project. The landowner has a responsibility to show that its damages are special to the property affected and not damages suffered generally. We find no such showing here.
We agree with the rationale in Lewis. Wal-Mart is not entitled to damages for dust, noise, and rodents under the facts here.
Access
Wal-Mart complains the City has taken access from it. According to Wal-Mart, K.S.A. 26-513(d)(2) specifically lists “[a]ccess to the property remaining” as a factor which must be considered if shown to exist. “View” is also specifically referred to in K.S.A. 26-513(d)(5). Furthermore, Wal-Mart asserts, “Kansas Appellate Courts have held that factors which affect market value may be considered by experts in eminent domain cases, even when they are not specifically enumerated in K.S.A. 26-513(d).” (Citing Willsey v. Kansas City Power & Light Co., 6 Kan App. 2d 599, 631 P.2d 268, rev. denied 230 Kan. 819 [1981] [where testimony of a real estate expert that public fear of power lines materially affects market value held admissible in a condemnation proceeding].)
We find Wal-Mart’s contentions unavailing. Wal-Mart has misused the term “access” in crafting its arguments. The district court held that there was no taking of access as a matter of law. Wal-Mart does not challenge that ruling here. The City did not permanently close any of the entrances or exits to the property. Wal-Mart still has four entrances located as they were before the project. In addition, Wal-Mart also has the same access to the same streets it previously had. The changes that so heavily affect Wal-Mart are die changes in the direction and flow of traffic. Wal-Mart does not have the same “loss of access” claims as the landowners in Kohn, 221 Kan. 230, or McCall, 215 Kan. 390. Thus, no “right of access” has been taken.
Wal-Mart’s complaints stem from the regulation of traffic flow. Wal-Mart says the critical question is whether “restricted access and view” can be considered in determining the market value of the property for a damage award under K.S.A. 26-513(d). Wal-Mart has simply repackaged the “unreasonable use of the police power” argument. The rationale of Hales, Hudson, and Small supply a negative answer to Wal-Mart’s question.
K.S.A. 26-513 does not allow landowners to recover indirectly what they could not recover directly. Otherwise, landowners who have had some small portion of their land condemned and then claim damages from changes in traffic flow but have not lost a “right of access” would recover when others who must proceed in an inverse condemnation action with the same damage claim will not. Stated differently, landowners suffering the same types of damages due to changes in traffic flow would recover in some instances, but not in others.
Wal-Mart also claims damages for loss of view, essentially arguing that because Kellogg is now a raised freeway, motorists cannot see Sam’s from certain vantage points. Wal-Mart’s claim finds no support as a common-law easement of view. The easement of view or “ancient lights” doctrine protected landowners from neighbors who would erect structures blocking light or air from the landowner. Kansas has never adopted the doctrine. See Anderson v. Bloomheart, 101 Kan. 691, 692, 168 Pac. 900 (1917). Wal-Mart’s. claim also finds no support as a “right to be seen.” A “right to be seen” claim for damages (for example the advertising value of a location) is generally denied. See 4A Nichols on Eminent Domain § 14A.03[4] (3d ed. rev. 1998). “View” in K.S.A. 26-513(d) means view from the property.
K.S.A. 26-513(d)(2) specifically uses the term “[a]ccess to the property remaining” (emphasis added). When construing a statute, we should give words in common usage their natural and ordinary meaning. International Ass’n of Firefighters v. City of Kansas City, 264 Kan. 17, Syl. ¶ 2, 954 P.2d 1079 (1998). We will not rewrite the K.S.A. 26-513(d)(2) language “[a]ccess to the property remain ing” to mean “access to the highway remaining.” We hold, based on case law developed since the passage of K.S.A. 26-513, “access to the property remaining” as used in K.S.A. 26-513(d)(2) refers to a “right of access”and not changes in traffic flow. Similarly, “view” does not mean view from the highway or the “right to be seen.”
We are not suggesting that all of our case law is consistent when viewed with an eye toward these distinctions. However, as a general rule, where a right of access has been taken, landowners have been compensated. See Kohn, 221 Kan. 230; Teachers Insurance, 221 Kan. 325; and McCall, 215 Kan. 390. And, where regulation of traffic flow has been at issue, the analysis is, and always has been, one of reasonableness.
We acknowledge inconsistencies in prior cases dealing with changes in traffic flow such as Garrett, 259 Kan. 896, and Riddle v. State Highway Commission, 184 Kan. 603, 339 P.2d 301 (1959). Garrett will be discussed later in this opinion. As for Riddle, we acknowledge that it contains language favorable to Wal-Mart. Expert testimony such as that at issue here was allowed in Riddle. However, the use of Riddle as authority for Wal-Mart’s claims under K.S.A. 26-513 is questionable. Riddle was decided by a fragmented court four years before K.S.A. 26-513 was enacted. We previously noted the divisiveness of Riddle. See Small, 240 Kan. at 120. We now point out its inconsistency with the well-established rule of reasonableness and our later case law.
Wal-Mart cannot recover for the diminution of value of its land due to the changes in flow of traffic where those changes are a reasonable exercise of the City’s police power.
The City’s Police Power
Are the alleged damages to Wal-Mart’s property the result of a reasonable and noncompensable exercise of the City’s police power? The question of whether the regulation of traffic flow to and from Wal-Mart’s property was a compensable taking was a question of law for the district court. Hudson v. City of Shawnee, 246 Kan. at 403. This court’s standard of review is de novo.
We last visited similar takings issues in Garrett, 259 Kan. 897. Garrett required a balancing test to determine whether the City’s use of the police power action was reasonable. A reasonable regulation imposed to protect the public is not a “taking in the constitutional sense because the public use is paramount and public safety is the desideratum.” Ray, 196 Kan. at 23. Thus, the question here is one of reasonableness. If Wichita’s rerouting of traffic by closing the eastbound exit at Dugan and converting the Kellogg frontage roads to one-way streets was a reasonable exercise of police power, Wal-Mart cannot recover for any diminution in value to its property. The burden of proof is on Wal-Mart. See Hudson, 246 Kan. at 403-04.
Wal-Mart relies primarily on three cases in support of its argument that the changes in access are unreasonable: Garrett, 259 Kan. 897; McCall, 215 Kan. 390; and Teachers Insurance, 221 Kan. 325.
In McCall, the landowner was compensated for a lost “right of access” and not changes in traffic flow. One entrance to McCall’s gas station was permanently removed. Thus, McCall is not applicable.
In Teachers Insurance, the landowners were damaged both by “loss of access” and changes in traffic flow when the City of Wichita moved Highway 54 (Kellogg) altogether. The landowners directly abutted Kellogg and had direct access to the street. When the highway move was completed, the landowners lost direct access and were left with only a “tortuous and circuitous route” to Kellogg. 221 Kan. at 328. Motorists had to travel from. 1.34 to 2 additional miles to reach the landowner’s property. The City stipulated that travel to and from the property was not practical. The landowners were compensated.
In Garrett, the landowner was compensated when the City took a portion of her land (actually the owner deeded it to the City in exchange for the cost of some improvements, but that is immaterial here) and rerouted traffic as well. A divided court held that “[w]here the government’s exercise of its police power has an economic impact on private property, a balancing test is applied to determine if the regulation of private land is too unfair or goes too far.” 259 Kan. at 910. The district court here was not required to follow the dictates of Garrett as Wal-Mart contends. Garrett is distinguishable.
The “economic impact” analysis espoused by Garrett is new to condemnation cases in Kansas. 259 Kan. at 910. Wal-Mart presented evidence of economic impact. According to Wal-Mart, the sales for Sam’s between February 1, 1995 and October 20, 1995 were down 2.41% as compared to 1994. Customer counts were down as well.
We hold the .district court did not err by refusing to consider the economic impact of the regulation of traffic flow on Wal-Mart’s property. The test has always been one of reasonableness. We restrict the application of Garrett’s “economic impact” analysis to the Garrett facts. Garrett-found that the City “failed to complete the ring road and in failing to do so diminished the commercial value of her property. Since this was an economic taking, the applicable test is weighing the public benefit against the economic burden to the landowner.” (Emphasis added.) 259 Kan. at 916. Here we have no failed road construction which diminished the value of WalMart’s property. Garrett is not to be read as changing the rationale developed by our longstanding case law that a compensable taking occurs only if the police power is unreasonable. Initially, the district court is to make a determination of reasonableness. If exercise of police power is unreasonable, a taking has occurred and a compensation award is appropriate.
In conclusion, we turn to the evidentiary complaints raised by Wal-Mart in its reply brief. Wal-Mart argues we should not consider affidavits and council proceedings submitted by the City because they contain hearsay. A reply brief is an inappropriate vehicle for raising additional issues. Cessna Aircraft Co. v. Metropolitan Topeka Airport Authority, 23 Kan. App. 2d 1038, 1044, 940 P.2d 84 (1997). However, a reply brief is appropriate to rebut new material. Rule 6.05 (1998 Kan. Ct. R. Annot. 36). We resolve the ambiguous character of the reply brief’s assertions in Wal-Mart’s favor and address the hearsay contention.
A certified copy of the city council proceedings discussing the Kellogg and Dugan interchange appears in the record. The testi mony of various persons present at that meeting is not required for our determination of whether the City’s actions under its police power were reasonable. Wal-Mart complains that no exit ramp was provided for Dugan itself. The council proceedings reference exit ramps for other streets.
The City also submitted two affidavits from Carl Gipson, Special Projects Engineer for the City of Wichita. The portion of the Design Concept Study attached to the second Gipson affidavit provides direct evidence of significant savings to the City and motorists as a result of the Kellogg highway project. Gipson stated from his own personal knowledge as projects manager for the Kellogg improvement that “[t]he fundamental reason for the reconstruction of Kellogg at this location was to improve safety and traffic efficiency.” Further, the record reflects that one of the primary objectives for undertaking the Kellogg highway project was to provide nonstop travel from the central business district to the airport. Prior to the project, the Dugan Street intersection was the only impediment to such travel. The City has made a sufficient showing that the exercise of its police power in rerouting traffic on Kellogg was reasonable. See McCall, 215 Kan. at 397.
Affirmed.
Abbott, J., not participating.
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The opinion of the court was delivered by
Davis, J.:
Roger McCartney, d/b/a Stockman’s Livestock Exchange and Charlene McCartney, (the McCartneys) through their attorneys, Don W. Noah and Noah and Harrison, P.A., (Noah), filed a Kansas antitrust action against Marvin and Marilyn Bergstrom, Ben and Karen Dreesen, and Farmers Livestock Commission Co., Inc.,- (the FLCC parties) in the District Court of Republic County, Kansas. This underlying antitrust action was resolved by summary judgment against the McCartneys. The FLCC parties then filed a malicious prosecution action against the McCartneys and Noah, which was resolved by summary judgment against the FLCC parties and affirmed by this court in Bergstrom v. Noah, 266 Kan. 829, 974 P.2d 520 (1999). The subject of this appeal involves a cross-claim in the malicious prosecution action filed by the McCartneys against Noah for legal malpractice in bringing the underlying antitrust action. The district court granted summary judgment to Noah. We affirm.
In its summary judgment in this case, the trial court identified by reference the uncontroverted facts upon which it based its conclusions of law. Those facts relate to both the malicious prosecution action and this malpractice action. However, because all of the facts are identified by the trial court in its grant of summary judgment in this action, they are set forth in full:
“1. Plaintiffs in the present case assert that Don W. Noah and Noah & Harrison, P.A., maliciously prosecuted claims against them on behalf of Roger McCartney in the case styled Roger McCartney d/b/a/ Stockman's Livestock Exchange and Charlene McCartney v. Farmers Livestock Commission Co., Inc., Marvin Bergstrom, Marilyn Bergstrom, Ben Dreesen, and Karen Dreesen, Case No. 92-C-04, filed in Republic County, Kansas (hereinafter referred to as the ‘underlying litigation’), a true and correct copy of the Petition.filed in the underlying litigation against plaintiffs (hereinafter collectively referred to as the FLCC parties). . . .
“2. The following pleadings were filed, and rulings were made, with regard to dispositive motions in the underlying litigation:
(a) The FLCC parties served a Motion to Dismiss on or about May 7, 1992, and Dr. McCartney responded to that motion on or about June 29, 1992. . . .
(b) The District Court denied the FLCC parties’ Motion to Dismiss on July 6, 1992. ...
(c) The FLCC parties filed a Motion for Interlocutory Appeal on or about July 21, 1992. That Motion for Interlocutory Appeal stated in pertinent part that:
‘2. . . . Specifically, Defendants contended that Plaintiff had failed to allege an antitrust conspiracy or combination under applicable law. On July 13, 1992, the Court filed an order denying Defendants’ Motion.
‘3. . . . (1) The order involved a controlling question of law as to which there is substantial ground for difference of opinion; . . .
. . . Has Plaintiff alleged or is he able to show an antitrust conspiracy or combination? Furthermore, there is substantial ground for .difference of opinion because this question has not been directly addressed by the Kansas appellate courts. This question requires a determination of how a conspiracy must be [pled], as well as what conduct constitutes an antitrust conspiracy. . . .’
(d) The Motion for Interlocutory Appeal was denied by the District Court on September 3, 1992. . . .
(e) The FLCC parties filed a Memorandum Brief In Support of Defendants’ Motion for Summary Judgment on or about July 26, 1993. ....
(f) A response to tire FLCC parties Motion for Summary Judgment was filed on August 19, 1993. . . .
(g) The FLCC parties filed a reply to Dr. McCartney s response to Motion for Summary Judgment on or about August 25, 1993. . . .
(h) The District Court initially denied FLCC parties’ Motion for Summary Judgment on August 23, 1993. . . .
(i) On or about August 25, 1993, the FLCC parties filed a Motion for Reconsideration of the District Court’s denial of Summary Judgment. . . .
(j) Summary Judgment was granted by the District Court to the FLCC parties on August 31,1993 in response to the Motion for Reconsideration filed by the FLCC parties. . . .
(k) A Motion to Alter and Amend was thereafter filed on behalf of Dr. McCartney on September 30, 1993. . . .
(l) Dr. McCartney’s Motion to Alter and Amend was denied on November 9, 1993. . . .
(m) The District Court’s Order of Summary Judgment was thereafter appealed on behalf of Dr. McCartney, and the decision of the District Court was upheld on appeal. . . .
“3. At the time the underlying litigation was filed, Dr. McCartney was the owner of Stockman’s Livestock Exchange sale bam in Belleville, Kansas, and he remains the owner of the sale bam. . . .
“4. The FLCC parties are all involved in the ownership, and operation, of the Farmers Livestock sale bam in Washington, Kansas, and have been involved in such ownership, and operation of tire sale bam since 1984. . . .
“5. The livestock auction bam located at Washington, Kansas, was closed from 1982 until it was opened by FLCC on November 18, 1984. . . .
“6. Prior to the FLCC parties becoming involved with the FLCC sale bam in 1984, tire sale bam had been through hard financial times, and, in fact, was acquired by the Bergstroms and Dreesens from a trustee in bankruptcy. . . .
“7. Mr. and Mrs. Bergstrom aird Mr. and Mrs. Dreesen first became involved in the sale bam business together when they entered into an agreement to purchase tire FLCC sale bam at a bankruptcy sale. . . .
“8. When the Bergstroms and Dreesens entered into the agreement to purchase the FLCC sale bam each couple agreed to pay half of the price, and did pay half the price each. The total purchase price was approximately $12,000. . . .
“9. Dr. McCartney purchased Stockman’s Livestock Exchange in 1985 for the sum of Three Hundred Thousand Dollars ($300,000.00). ...
“10. Over the next few years the number of livestock being sold through Dr. McCartney’s sale bam decreased. ...
“14. The value of a sale bam is determined by the number of livestock going through it. . . .
“15. In 1986 Dr. McCartney obtained information leading him to believe that tracking was being provided to farmers by FLCC through C & C Trackline op erated by Adolph Charbonneau, and was being paid for by one or more of the FLCC parties, not by the farmers. . . .
“16. Specifically, in 1986, Dr. McCartney became concerned about an incident where he had made arrangements with a consignor Eric Anderson, to sell cattle at Stockman’s Livestock. A call was then made to C & C Truckline to haul tire cattle, and thereafter Dr. McCartney was told by the farmer that he had been contacted by Mr. Bergstrom, and had determined, without further explanation, to take the cattle to Farmers Livestock, instead of Stockman’s Livestock, for sale. Thereafter, Dr. McCartney confronted Ben Dreesen concerning this incident, and Mr. Dreesen denied that any rules or laws had been violated. . . .
“17. When payments of trucking are made by a sale bam on a discriminatory basis, in other words, paid to some customers, and not others, it is considered by the Packers and Stockyards Administration to be a violation of the Packers & Stockyards Act. . . .
“18. Payment of free or reduced price tracking is an effective way to attract customers to a sale' bam who would not otherwise go to that particular sale bam. ...
“19. If free or reduced cost tracking is offered for large groups of cattle, it brings more cattle to a sale bam, and as a consequence brings even more customers to the sale bam in anticipation of better bidding at the sale bam. ...
“20. Prior to filing suit in this matter, Dr. McCartney was concerned that he was losing significant sale bam business to the FLCC sale bam as a result of tire FLCC parties providing free and below-cost tracking. Dr. McCartney discussed these concerns with other sale bam operators in the area, and they concurred in his belief that FLCC was offering free or below-cost tracking to attract business to the FLCC sale bam. ...
“23. The FLCC parties were first warned by the Packers and Stockyards Administration in 1985, just shortly after they began operating the FLCC bam, that they were violating the law by offering free or below-cost tracking to farmers. This warning specifically advised the FLCC parties of the illegality of the practice, and further advised the FLCC parties that each violation would result in a Cease and Desist Order and fine up to $10,000. Specifically, the Packers and Stockyards Administration’s letter of March 25,1985, directed to Marvin Bergstrom as President of FLCC stated that:
‘This is to confirm that our conversation regarding the practice of providing free or below-cost tracking of consignors’ livestock to your market. As you were advised, this is considered an unfair practice in violation of Section 312(a) of the Packers and Stockyards Act, found on page 15 of the enclosed. Please ■ see that such violation may result in Cease and Desist Order and fine up to $10,000 for each such violation.
‘In our conversation, you admit providing some free tracking, but you did not realize it is against P&S regulations. You agreed to immediately discontinue this practice and ask that we contact some of your competitor auctions to stop them from similar violations.’
"24. In 1988 a further investigation was done by the Packers and Stockyards Administration of FLCC at Dr. McCartney’s request, but no evidence of further violations was discovered at that time. . . .
“25. Packers and Stockyards Administration representatives themselves, however, later acknowledged that their 1988 investigation was inadequate, and in 1991, at the request of Dr. McCartney, Packers and Stockyards Administration re-instituted an investigation of FLCC. . . .
“26. In connection with the 1991 investigation,' Dr. McCartney supplied lists of farmers to Packers and Stockyards Administration investigators indicating that those people had possibly had their trucking paid or received part of their commission back or both from FLCC. . . .
“27. From this list of 40 farmers, three commercial truckers and four farmer truckers provided to them by Dr, McCartney, the Packers and Stockyards Administration’s 1991 report reflects that Packers and Stockyards Administration investigators did random interviews of six farmers in 1991, and of the six, Packers and Stockyards Administration investigators definitively confirmed the payment of trucking to one, namely, Mr. Dean Anderson who admitted such payment.' . . .
“28. The 1991 investigation by Packers and Stockyards Administration documented an incident reflecting payment of trucking for Dean Anderson by die FLCC parties. In pertinent part, Dean- Anderson informed Packers and Stockyards Administration investigators that:
‘During the interview, ANDERSON stated that in recent years he has been selling his calves at FARMERS. BERGSTROM always comes and looks at the cattle before ANDERSON consigns them. ANDERSON said that BERGSTROM usually sets up the trucking for the cattle through C&C TRUCK LINE, INC., Concordia, KS. ANDERSON said that part of the .time C&C bills him directly, and other times BERGSTROM pays for the trucking. HEBEN-STRIET asked if BERGSTROM pays for the trucking to get ANDERSON to use his market. ANDERSON replied ‘Tes.” ’
“29. At least two consignments of livestock were made to Stockman’s Livestock, but when these consignors called C & C to haul their stock the consignments did not come to Stockman’s but went to FLCC. These consignors were Dorman Brothers and Eric Anderson. . . .
“30. About 40% of C & C’s business was Bergstrom Livestock and probably less than 1% is FLCC. . . .
“31. According to his deposition in the underlying litigation, if C & C Truckline has trucks available, Marvin Bergstrom uses that truckline. . . .
“32. The 1991 investigation also reflected that although another farmer, Francis Baxa, indicated that FLCC normally deducted his trucking costs from his sale proceeds, in the particular incident investigated, no trucking charge had been deducted. When asked whether he had received free trucking Mr. Baxa did not deny it, but rather asked ‘Is free trucking illegal?’ . . .
“33. As a result of its 1991 investigation, the Packers and Stockyards Administration once again warned the FLCC parties that they were violating the Packers & Stockyards Act, and specifically advised Mr. Bergstrom in a letter dated June 25,1991, that:
‘During an investigation of Farmers’ business operations, the following violation of the Packers and Stockyards Act was discovered.
‘The investigation disclosed that Farmers, for the purpose of inducing certain owners to consign their livestock to the market, provided free transportation of livestock. The Packers and Stockyards Administration considers this an unfair and unjustly discriminatory practice under sections 307 and 312(a) of the Act.
‘Enclosed is a copy of the Packers and Stockyards Act. The relevant sections can be found on pages 14 and 18. We trust you will take immediate steps to bring your operation into compliance. If you have any questions, please contact this office.’
“34. In an interview of Mr. and Mrs. Bergstrom by Packers and Stockyards Administration investigator Rob Merritt, in connection with the 1991 investigation, the following discussion occurred on February 15, 1991:
‘Merritt advised the Bergstroms that part of the reason we conducted an investigation of Farmers Livestock was because we received a complaint that they were offering free trucking to some of their consignors. Bergstrom responded with “I’m not saying I am and I’m not saying I’m not, but, free trucking is a part of doing business in this country.” Bergstrom further stated that he knew of a lot of people that were offering free trucking in the area as competition is very high and this is one way to attract business.’
“35. This statement by Mr. Bergstrom was specifically considered by Mr. Noah prior to filing suit, and was even paperclipped in his notebook as reflective of Mr. Bergstrom’s attitude in violating the law. . . .
“36. The Packers and Stockyards Administration’s 1991 report also reflected that trucking was not deducted from the proceeds paid to Eickman, Inc., by FLCC. Mr. Eickman indicated that he hired a trucking firm and paid the trucking directly, but the Packers and Stockyards Administration’s report does not reflect that Packers and Stockyards Administration investigators ever sought, or obtained, proof of any such payment. . . .
“37. Packers and Stockyards Administration investigators also did a review of C & C Trucldines’ books and records examining transactions where C & C Truck-lines hauled cattle to Farmers Livestock for die period from October 17, 1991 through February 27, 1992. No explanation is provided in the Packers and Stockyards Administration’s report as to why a longer time period was not examined. Within the time period examined, however, the Dean Anderson transaction was documented as reflecting the illegal payment of free trucking. . . .
“38. Although Packers and Stockyards Administration also examined records pertinent to Gene Heyka in their 1991 investigation, the Packers and Stockyards Administration’s investigators’ report does not reflect that Mr. Heyka was ever contacted by Packers and Stockyards Administration investigators, and neither was any payment of free trucking to Mr. Heyka documented in this investigation. . . .
“39. In August of 1991, Dr. McCartney contacted numerous elected officials requesting their assistance in obtaining further investigation by the Packers and Stockyards Administration, or potentially the Kansas Livestock Commission, of FLCC’s activities. . . .
“40. Mr. Noah’s initial involvement with Dr. McCartney’s claims in the underlying litigation came in October of 1991 when he was approached by Dr. McCartney with a request that he assist him in obtaining access to the books and records of the FLCC parties to definitively establish what he believed to be a pattern of illegal activity, and bring the activity to an end, through a lawsuit for damages and injunction, if necessary. . . .
“41. The first information relayed to Mr. Noah from Dr. McCartney was that he [McCartney] had noticed FLCC’s sale bam was drawing consignors from various locations that were much closer to other sale bams. . . .
“42. Prior to die filing of suit, Dr. McCartney told Mr. Noah many people were telling him it was no secret that FLCC was in fact giving illegal inducements to consignors. . . .
“43. Mr. Noah thereafter obtained from Dr. McCartney a list of consignors Dr. McCartney thought could have had some illegal inducements. . . .
“44. Dr. McCartney also informed Mr. Noah he had heard Mr. Dreesen had stated that free tracking and illegal inducements were buried so deep in the books of FLCC that it could never be found by the Packers and Stockyards Administration. . . .
“45. Mr. Noah was informed, shortly after Dr. McCartney retained his services, of the prior Packers and Stockyards Administration investigations. . . . Thereafter, as an initial phase of his investigation, Mr. Noah requested and obtained, under the Freedom of Information Act, a copy of the Packers and Stockyards Administration’s investigation. This information was provided to Mr. Noah by letter dated November 12, 1991, and contained the information confirming that the FLCC parties had in fact provided free tracking, and other information concerning the Packers and Stockyards Administration’s investigation of the FLCC parties as has been outlined above. Mr. Noah reviewed this report at some length, and was aware of its contents prior to filing suit. . . .
“46. Prior to filing the lawsuit in the underlying litigation, Mr. Noah was aware Packers and Stockyards Administration had sent two cease and desist letters to FLCC informing it that it was unlawful to offer free tracking or other inducements. . . . Prior to fifing suit, Mr. Noah was aware that back in 1985 FLCC admitted offering free trucking in violation of Packers and Stockyards Administration’s rules. . . .
“47. Prior to filing suit, Mr. Noah was also informed by Dr. McCartney of the failed 1988 investigation by Packers and Stockyards Administration, and Packers and Stockyards Administration’s subsequent acknowledgment that this investigation was inadequate. . . .
“48. Prior to filing suit, Mr. Noah was aware a load of cattle owned by a consignor named Eric Anderson was diverted from McCartney’s sale bam to FLCC’s sale bam after Mr. Anderson received free trucking and a guaranteed price. . . .
“49. In instances where Mr. Noah felt the Packers and Stockyards Administration investigation had been incomplete he followed up with personal contacts of farmers believed to have received free tracking from the FLCC parties, and through his additional investigation developed evidence that Gene Heyka and another consignor. Mr. Johnson, had been offered free trucking by Mr. Dreesen in return for bringing their cattle to the FLCC parties’ sale bam. Mr. Heyka informed Mr. Noah that Mr. Heyka and Mr. Johnson received a check for the free tracking from the Bergstrom farm account. . . .
“50. Jim Levendofsky was present during Mr. Noah’s conversations with Mr. Heyka which took place in January, 1992. . . .
“51. Mr. Levendofsky informed Mr. Noah at the time of the meeting ‘that it was common knowledge drat they [FLCC] were paying the trucking or whatever else it took to get loads of cattle when they had to.’ Mr. Levendofsky further told Mr. Noah that ‘there wasn’t any secret about it.’ . . .
“52. In further investigation of Dr. McCartney’s claims prior to suit, Mr. Noah had discussions with Lyle Koenig and/or Steve Wemer concerning FLCC’s payment of trucking for farmers north of the Kansas line between Fairbury and Hebron, Nebraska, and thereby inducing farmers to bring their cattle to the FLCC sale bam rather than Mr. Werner’s sale bam in Fairbury, Nebraska. . . .
“53. Prior to fifing the underlying litigation, Steve Wemer, the owner of the sale bam at Fairbury, Nebraska, and/or Mr. Koenig, his attorney, told Mr. Noah that Mr. Dreesen was offering potential consignors of livestock in the Fairbury, Nebraska area a deal whereby C & C Truckfine would haul livestock to FLCC at free or reduced rate trucking. . . . From Mr. Wemer, Mr. Noah further obtained information shortly after fifing of suit in the underlying litigation that Robert Kuhn, Wilburn, Nebraska, John Levendofsky, Hebron, Nebraska, Dale Shinn and Jim Williams, and his sons, Russell and Mike Williams, from the Fairbury area had, in fact, been provided free tracking by the FLCC parties. . . . Jim Williams and his sons were prepared to testify on behalf of Dr. McCartneyin the underlying litigation. . . . The information from Mr. Williams and his sons was verified at some point by Lyle Koenig who personally interviewed them. . . .
“54. Further, prior to fifing suit, Mr. Noah had information that Brian Larson and his father had received free trucking, possibly a guaranteed price and a one dollar per head back. . . .
“55. Mr. Noah interviewed Brian Larson prior to fifing suit. ...
“56. Brian Larson did not deny he and his father had been paid free trucking, but rather ‘[h]e talked all the way around the subject and pawed the dirt and wouldn’t look [Noah] in the eye.’ . . .
“57. When Mr. Noah took the deposition of Brian Larson, in the underlying litigation, Brian ‘. . . did sheepishly admit that he had gotten a check for around [$]400’ from the FLCC parties for trucking. . . .
“58. Mr. Noah provided Packers and Stockyards Administration investigators with specific information concerning the Gene Heyka transaction in January of 1992, but they were unable to document the transaction. . . . This created significant concern on the part of Mr. Noah as to the thoroughness of the Packers and Stockyards Administration’s investigation. . . .
“59. In February of 1992, Mr. Noah and Dr. McCartney were informed by Packers and Stockyards Administration that Packers and Stockyards Administration did not intend to continue their investigation at that time, and based upon their investigation at that point did not believe FLCC was continuing to pay trucking for customers. When confronted with the Heyka transaction, however, they were unable to explain why it had not been located. . . .
“60. Packers and Stockyards Administration’s report of the January, 1992 investigation reflects that there was further investigation to be done with regard to contracting truckers, and consignors, but Packers and Stockyards Administration chose not to do this further investigation. . . .
“61. Further, prior to suit, Ben Grosse, a farmer at Jamestown, Kansas, with a large cattle interest, informed Mr. Noah prior to tire time suit was filed that he had also heard that free trucking was going on at FLCC. . . .
“62. Marvin Bergstrom has never considered the payment of free or below cost trucking to consignors of a public auction a legal way to attract business. . . .
“63. In the instances in which Marvin Bergstrom gave free or reduced price trucking he probably gave this inducement with regard to large numbers of cattle as an incentive for the farmer to sell those cattle through FLCC. As he testified in his deposition in the present case:
‘Q. As best you recall on those occasions, how would it come about that you did give free or reduced-rate trucking?
‘A. Probably in large numbers of livestock, you know, that were incentive to get the cattle.
‘Q. Large numbers to the effect of doing two things; one, obviously, you charged a tariff per head?
‘A. Right.
‘Q. And the bigger the numbers, the more profit in doing it?
‘A. That would be correct.
‘Q. The second, it tends to bring in buyers?
‘A. That is second, correct.
‘Q. Buyers are terribly important to you?
‘A. That is exactly right.
‘Q. Hopefully the more buyers you have, it sort of snowballs and the more cattle you’re going to get in?
‘A. That is correct.’
“64. As the underlying litigation progressed, Mr. Werner provided additional names of consignors who had been provided free trucking in his area. Mr. Noah had also obtained information that C & C Truckline was hauling hogs to the Farmland plant at Crete, Nebraska and on the way back, they would pick up cattle and haul them free of charge to the Washington Sale Bam. . . . Mr. Koenig was told at some point by John Levendofsky that he had, in fact, received free trucking from the FLCC parties, but he later changed his statement. Mr. Koenig related Mr. Levendofsky’s statements concerning the payment of-free tracking to Mr. Noah. . . .
“65. When Mr. Bergstrom was deposed in the underlying litigation it was his testimony that FLCC had only paid trucking ‘[o]ne or two or three times! that’s right, to the best of [his] knowledge.’ ... ■
“66. When deposed in the present case, it was Mr. Bergstrom’s testimony that FLCC had given a very limited number of free or, reduced rate trucking over the years, probably between 5 and 15 times. . . .
“67. Although both Mr. Bergstrom and Mr. Dreesen offered and provided free trucking to consignors of livestock to FLCC, no records were maintained by them, or FLCC, to indicate whether or not free trucking had been paid to any specific individual. . . .
“68. Prior to the filing of suit, Rex Woods, the Certified Public Accountant employed to examine FLCC’s books, had examined the Packers and Stockyards Administration report, and told Mr. Noah that, if the books of FLCC were right, he would find every free trucking and inducement FLCC had given. . . .
“69. Prior to the fifing of suit in the underlying litigation, it was Dr. McCartney’s belief, based upon a review of his sales records, which he relayed to Mr. Noali, that the illegal activities of the FLCC parties were causing significant losses to him in his sale bam business, and could over time destroy his business. . . .
“70. Sales of livestock in the market area covered by FLCC and Stockman’s Livestock for the years beginning July 1, 1984, and ending June 30, 1992, were as follows:
July 1 — June 20 1990-
1984- 1985-1986- 1987- 1988- 1989- 1990- 1991-
1985 1986 1987 1988 1989 1990 1991 1992
FtCC 14,763 27,254 29,564 26,547 25,409 20,501 23,454 26,480
Stockman’s 31,528 26,683 32,367 27,053 26,252 20,060 16,937 18,097
Clay Center 17,689 178 8,419 13,308 13,748 9,827 7,757 5,907
Marysville ’ 89,618 ■ 78,700 78,286 75,997 80,063 67,299 68,255 67,017
Calendar 1984 1985 1986 , 198 Year 1988 1989 1990 1991 .1992
Fairbury 29,550 24,281 22,946 18,: 13,386 19,026 25,618 18,414 20,139
“71. On March 26, 1992, Mr. Noah filed suit on behalf of Dr. McCartney against the FLCC parties asserting theories of recoveiy under the Kansas Antitrust statutes contained in K.S.A. 50-101, 50-112, 50-132, and 50-801. . . .
“72. On October 6, 1992, as the underlying litigation went forward, Clarence L. King, Jr., one of the attorneys for the FLCC parties, wrote a letter to Mr. Noah concerning a telephone conversation in which he advised Mr. Noah that the FLCC parties were considering a malicious prosecution case if Dr. McCartney was unsuccessful in his case against them, but that the FLCC parties would be willing to forget the malicious prosecution case if Dr. McCartney was willing to dismiss his case against them at that time. . . .
“73. Mr. Noah discussed Clarence L. King’s correspondence of October 6,1992 with Dr. McCartney,, and further discussed with Dr. McCartney the fact that Mr. King’s call and letter came just days before Mr. Noah and Dr. McCartney were scheduled to get any meaningful discovery in the underlying case. They further discussed the fact that for approximately six months the FLCC parties had been successful in ‘keeping [them] from getting anything much done.’ Mr. Noah and Dr. McCartney jointly concluded it was just another stall by the FLCC parties. ...
“74. At the time of their discussion of Clarence King’s October 6, 1992 letter, Mr. Noah also discussed the advice of counsel defense to a malicious prosecution action with Dr. McCartney, and told Dr. McCartney that although he could potentially be sued for malicious prosecution if he lost the case, he did not believe he could be sued successfully due to the advice of counsel defense. . . .
“75. In accord with his discussion with Dr. McCartney, Mr. Noah thereafter sent a letter dated October 20, 1992 to Clarence King advising him that Dr. McCartney’s claims would not be dismissed in return for a mutual release and an agreement of the FLCC parties not to sue Dr. McCartney for malicious prosecution. . . . Mr. Noah’s letter of October 20, 1992 . . . states in pertinent part:
T feel there is no basis for your clients taking any position other than their being upset about a full and complete investigation of their inappropriate operation of their sale bam under the existing rules and regulations. Dr. McCartney did have deep concerns about the unfair competition. He was willing to pay for an investigation on both the facts and the law. Our continued search for the facts in this case continues to provide documentation to substantiate the position we have taken for Dr. McCartney. We expect the remaining discovery to provide additional documentation.
‘There was no thought when this action was finally filed to do other than prevail in this litigation. When Dr. McCartney provided us with all the information available to him, that which was available to P & S and all that was revealed in our investigation, which he paid for we made our judgment based upon the facts we then knew, as I have mentioned are being confirmed. The advice of counsel defense will protect Dr. McCartney. I seriously doubt, even if your clients are fortunate enough to win this lawsuit, there is anyone else that will be subject to any action for improper handling of this matter.
T take your telephone call at face value. You had no improper motive and wanted to have a fair consideration of the matter. I feel we have given the matter a fair consideration and feel that your clients’ concern is only to avoid their misdeeds being brought out in the open.’
“76. When Mr. Woods was finally able to obtain access to FLCC’s books and records, he located forty-three (43) illegally induced transactions which he opined would have gone to Dr. McCartney’s sale bam but for the illegal inducements. . . .
“77. Furthermore, Quinten Bergstrom, the son of Marvin Bergstrom, testified that no trucking fees were deducted from consignors of livestock whose livestock was hauled to FLCC by him [Quinten Bergstrom]. This involved further inducements where tracking was not paid for by consignors of FLCC. . . .
“78. As a consequence of these illegal inducements, Mr. Woods opined that Dr. McCartney suffered damages for lost profits between $90,756.25 and $126,718.75. . . .
“79. The foregoing findings of Mr. Woods, together with Mr. Woods’ opinions, were determined by the District Court to be sufficient to present to a jury evidence of a pattern of illegal inducements by FLCC resulting in significant damage to Dr. McCartney’s business. In this regard the District Court stated at pp. 17-18 of its Order granting Summary Judgment to the FLCC parties that:
‘Plaintiff has presented sufficient circumstantial evidence from which a trier of fact could conclude that his decline in consignment sales was proximately caused by defendants providing free trucking and perhaps other inducements. Summary judgment cannot be granted on this basis.’
“80. Dr. McCartney did himself pay trucking for farmers. His testimony as to such payments was that they were made as a part of his investigation of FLCC’s activities to determine whether or not paying of trucking was what it took to get cattle consigned. . . . The acknowledged payments by Dr. McCartney were payments to Leonard Reedy and to Earl Neander in March of 1990. With regard to these payments Dr. McCartney testified that:
‘A. Leonard Reedy situation, basically this occurred in the spring — approximately March of 1990, and I and P and S telling me that nothing’s happening and I have hearsay that something is happening as far as what Washington is doing getting cattle. Washington had sold basically Leonard Reedy’s cattle all the time up until this point, so I decided, well, I’m just going to see what it takes to get Leonard Reedy’s cattle, and basically I just let Leonard dictate what it took. I told Leonard, I said, “What’s it going to take to get your cattle?” I said, “I’d like to sell your cattle,” and after some negotiations and so forth it took paying the trucking and a buck a head back, a dollar a head back.’
‘A. It occurred in the same time era. I was — my fieldman was working on Emil, a few cattle for Emil Neander. Mr. LaGasse, the auctioneer at Washington, and also one of their fieldmen were also working on the cattle. Mr. Neander gave the indication he was probably going to go to Washington, so I told Ted, “Let’s just see what it takes to get the cattle,” and it took paying the trucking.’
“81. Mr. Noah specifically questioned Dr. McCartney about any illegal transaction in which Dr. McCartney had been engaged in the initial portion of Mr. Noah’s investigation of Dr. McCartney’s claims. . . .
“82. These transactions of Dr. McCartney with Mr. Reedy and Mr. Neander were disclosed early on in the underlying litigation. . . .
“83. The two incidents to secure consignments from Mr. Reedy and Mr. Neander were the only illegal inducements ever given by Dr. McCartney. . . .
“84. Mr. Larry Michel, one of FLCC’s attorneys in the underlying litigation, has explained at least one method used by FLCC to pay illegal inducements which would not be reflected in FLCC's books. In describing this method, Mr. Michel testified at pp. 44-46 of his deposition that:
‘Q. Do you recall any witness that you visited with ever expressing any question in their mind as to whether or not Farmers Livestock had perhaps helped out a little with the trucking?
‘A. As was indicated previously, I recall that there were a couple of instances that we were aware of that were — where trucking had been paid.
‘Q. Were you aware of that as a result of your investigation and the witnesses that you talked to?
‘A. Partly.
‘Q. Okay. What witnesses did you talk to that indicated that Farmers Livestock had at least helped out with the trucking?
‘A. If you are wanting names, I am probably not going to be able to do that.
‘Q. Tell me where you talked to them if you remember that or how you talked to them.
‘A. We met a couple of guys at a little restaurant in some town between Belle-ville and Courtland I believe; it might have been Courtland. But there is one of those small little towns on that stretch of highway, and we met some people at a restaurant, and that issue was discussed.
‘Q. Do you remember what they said?
‘A. Basically on one or two occasions that one or more of the defendants had basically paid a pretty good price for hay as a way of indirectly reimbursing them for some of their trucking.
‘Q. In other words, the check might have been on the personal account of Mr. Bergstrom or Mrs. Bergstrom showing that the payment was for hay when really it was reimbursement for trucking?
‘A. As I recall, they really did buy the hay, but they paid — let’s put it this way: The other party got a pretty good price for their hay.
‘Q. Pretty good in the context of more than it was normally worth, true?
‘A. That’s correct.’
“85. Although Mr. Bergstrom is President of FLCC, Mr. Dreesen is Vice-President, and Karen Dreesen is secretary of FLCC, they have never received a salary from FLCC. Rather, instead of a salary they periodically receive a portion of the profits from FLCC with one-half going to Mr. and Mrs. Bergstrom and one-half to Mr. and Mrs. Dreesen. . . .
“86. Karen Dreesen, the ‘secretary’ of FLCC, doesn’t know if there is a board of directors of FLCC, the corporation, and in her words ‘[w]e four people are part of and are the Farmers Livestock Commission Company. . . .’ The four people referred to by her are the Bergstroms and the Dreesens. Furthermore, she has no knowledge of any stock certificates ever being issued with regard to FLCC. . . .
“87. In the underlying litigation it was established that FLCC has maintained no original memoranda. If an original memoranda — invoices had been made, it would have been destroyed within 60 days after preparation. . . .
“88. Throughout file course of the operation of the FLCC sale bam the expenses incurred by Mr. Bergstrom and Mr. Dreesen in using their vehicles, and paying for insurance on their vehicles for use of the vehicles in performing FLCC business, have been paid out of the Bergstrom and Dreesen farm account, not by FLCC. No claim for reimbursement of expenses has ever been made by Mr. Dreesen to FLCC, and so far as Mr. Dreesen is aware no claim for such expenses has been submitted by Mr. Bergstrom either. ...
“89. FLCC officers have failed to:
(a) Give Notice of Directors meetings;
(b) Adopt by-laws;
(c) Hold an election of officers; and
(d) Pass a resolution giving authority to act to any officers.
“90. FLCC has failed to pay dividends. . . .
“91. Prior to filing the underlying litigation, Mr. Noah researched the potential for filing claims on behalf of Dr. McCartney under RICO, the Federal Antitrust Statutes, and under the Kansas Restraint of Trade Statutes, also commonly referred to as the Kansas Antitrust Statutes. Having completed his research prior to the fifing of suit, Mr. Noah determined that, although claims could potentially be stated under RICO and the Federal Antitrust Statutes, the claims under the Kansas Antitrust Statutes provided what was in his opinion the best avenue for success in the shortest period of time while still leaving open the potential for fifing claims in Federal Court under RICO and/or the Federal Antitrust Statutes if they appeared to be more advantageous, at a later point in time. This was a probability because the statute of limitations under the Kansas Antitrust Statutes is two years whereas the statute of limitations under RICA and the Federal Antitrust Statutes was four years. His research further established that the federal antitrust claims could not be filed in state court because the federal courts had exclusive jurisdiction of these claims. . . .
“92. No evidence exists that Mr. Noah instituted or pursued McCartney s claims against FLCC out of an improper motive. Mr. Bergstrom testified in his deposition that:
‘Q: All right. Have you obtained any information that leads you to believe that prior to initiating the underlying litigation of Mr. Noah or his law firm had any ill will or bad feelings toward either you or your wife or the Dreesens or their company?
‘A: Well, I think that probably was answered in the form of a question but to answer, no.
‘Q: (By Mr. King) All right. Have you at any time obtained any information that leads you to believe that either Mr. Noah or anyone in Mr. Noah’s law firm had any ill will toward either you or your wife, or the Dreesens, or Farmers Livestock Company prior to him filing the underlying litigation on behalf of Dr. McCartney?
‘A: Now you’re saying prior to that?
‘Q: Yes, sir.
'A: Okay. That was prior to them filing the litigation against us?
‘Q: Yes, sir.
‘A: We’ve answered that, no. We’ve answered that several times.
‘Q: All right. Do you have any information as we sit here today that leads you to believe that Mr. Noah or his law firm brought the underlying litigation on behalf of Dr. McCartney for a purpose other than obtaining a proper adjudication of Dr. McCartney’s claims against you, your wife, the Dreesens and die Farmers livestock Company?
‘A: Do I have any knowledge that would make me believe diat Mr. Noah brought the action against us from any other reason representing Dr. McCartney? Is that correct?
‘Q: (By Mr. King) Any other reason other than representing Dr. McCartney and obtaining air adjudication of the claims that Dr. McCartney had against you and your wife, the Dreesens and Farmers Livestock Company?
‘A: I wouldn’t know of them, no.’
“Marilyn Bergstrom testified in her deposition that:
‘Q: Do you have any information indicating that in bringing Dr. McCartney’s claims in the underlying litigation that Mr. Noah was acting for some purpose other than obtaining an adjudication of Dr. McCartney’s claims against the parties in the underlying litigation?
‘A. I guess I really don’t know. I will answer no.’
“Karen Dreesen testified in her deposition that:
‘Q: Do you have any information that indicates that Mr. Noah pursued claims on behalf of Dr. McCartney in the underlying litigation for a purpose other than obtaining a proper adjudication of those claims?
‘A: I have no information.
‘Q: There’s also been reference to a statement allegedly made by Mr. Noah where he said that “Even if Farmers Livestock parties won the underlying litigation, they’d be so sick and tired of litigation by the time the underlying case was over that they would never sue us.” Have you ever heard anything about that statement being made?
‘A: Yes, I did.
‘Q: When did you hear that?
‘A: I don’t know when I did. I just know my husband mentioned the statement to me.
‘Q: Do you have any reason to believe that Mr. Noah brought the claim on behalf of Dr. McCartney in the underlying litigation for a purpose other than obtaining a proper adjudication of Dr. McCartney’s claims against you and your husband and the Bergstroms?
‘A: No.’
“Ben Dreesen testified in his deposition that:
‘Q: Do you have any information that indicates to you that Don Noah brought the claims of Dr. McCartney in the underlying litigation for a purpose other than obtaining a proper adjudication of those claims against the parties named in the underlying litigation?
‘A: I don’t know if he had any ill will towards us.
‘Q: Let’s divide this up into time frames. The lawsuit was filed in March of 1992. I’m talking about the time that the lawsuit was filed. Do you have any information to indicate that at the time the lawsuit was filed in March of 1992, that Mr. Noah was filing that lawsuit for a reason other than obtaining proper adjudication of Dr. McCartney’s claims in that lawsuit?
‘A: No, I did not.’
“93. Prior to filing suit in the underlying litigation, Mr. Noah did not send the FLCC parties a prefiling demand letter. It was Mr. Noah’s belief that sending a prefiling demand letter to the FLCC parties would have been a gesture without a purpose. . . .
“94. After Dr. McCartney obtained information from Eric Anderson indicating that FLCC had provided him [Eric Anderson] with free trucking and a guaranteed price, Dr. McCartney contacted Mr. Dreesen and asked him to come to the livestock market in Belleville for a visit. During this visit Dr. McCartney asked Mr. Dreesen if FLCC was offering free trucking and guaranteed prices. Mr. Dreesen denied that they had. . . .
“95. Mr. Noah concluded there was no use in sending a prefiling demand letter because it had been reported to Mr. Noah that Mr. Dreesen had told someone that FLCC had the payment of trucking and other inducements buried so deep in the books that Packers and Stockyards Administration would never find them. . . .
“97. A further reason Mr. Noah did not send a demand letter to FLCC prior to instituting the underlying litigation was that he was concerned the statute of limitations was close to expiring. In fact, Mr. Noah has a note from his very first conference with Dr. McCartney that mentions the statute of limitations. . . .
“98. In making the decision to file Dr. McCartney’s suit in state court rather than federal court, Mr. Noah analyzed the following legal, and strategic, issues prior to the fifing of suit:
(a) He determined that Dr. McCartney had potential claims under state antitrust laws, under RICO, under the Packers and Stockyards Act, and under the Sherman Antitrust Act. . . .
(b) He determined that claims under the Sherman Antitrust Act, and the Packers and Stockyards Act could not be filed in state court. . . .
(c) He determined that the statute of limitations for state antitrust claims was two years whereas the statute of limitations for claims under RICO and the Federal Antitrust statutes was four years. . . .
(d) He determined that there were arguments which he believed to be reasonable which could be made under state law to prove Dr. McCartney’s claims with or without proof of conspiracy. . . .
(e) He analyzed the remedies available in state court as compared to the remedies available in federal court. . . .
(f) He analyzed whether he would be able to get better discovery in state court than federal court. . . .
(g) He analyzed the time he believed it would take to get to trial in state court as opposed to federal court. . . .
(h) He analyzed the cost of travel associated with state court as opposed to federal court. . . .
(i) He considered Dr. McCartney’s desire to have his case tried to a Republic County jury. . . .
“99. Prior to fifing suit, Mr. Noah discussed with Dr. McCartney both the alternative of fifing suit in state court, and the alternative of fifing in federal court, and they agreed that suit would be filed in state court not federal court. . . .
“B ADDITIONAL FACTS SUBMITTED ONLY IN SUPPORT OF SUMMARY JUDGMENT ON MALPRACTICE CLAIM.
“100. Dr. McCartney had his first meeting with Mr. Noah in the first part of October, 1991. . . .
“101. . . . [T]he Contract of Employment signed and entered into by and between Dr. McCartney and Mr. Noah in October of 1991, . . . provides in pertinent part that:
'1. The Client retains and employs the Attorneys for the purpose of instituting, prosecuting, or adjusting a claim or claims as may be deemed advisable by Attorneys to recover on behalf of Client for an injunction and damages against Farmers Livestock Commission Company, Inc., and the owners and operators thereof.
‘2. The Attorneys agree to use their best efforts to assert or defend such claim and to secure for the Client such legal remedies as the Client may be entitled. It is understood that Attorneys shall have the exclusive right to take all legal steps to prosecute the claim but that the Attorneys will not settle any claim without the approval of the Client.
‘3. Client agrees to advance a suit fee of $5,000.00 to be deposited in attorneys Trust Account. The fee shall be applied against actual'legal services performed for the client and for costs and expenses incurred. Attorneys will periodically account for withdrawals from the suit fee. Clients agree that the suit fee is not necessarily the total fee and agree to deposit additional funds as required to continue the matter.
‘4. In consideration of the services performed and to be performed by the Attorneys, the Client agrees to pay Eighty-five dollars ($85.00) per hour for Don W. Noah’s time, Seventy-five Dollars ($75.00) per hour for Jerry L. Harrison’s time, and Sixty-five Dollars ($65.00) per hour for Mark J. Noah’s time actually and necessarily spent on the matter. Necessary travel at $0.25 per mile, copying costs, and toll charges to be paid at the actual costs expended.
‘6. Attorney has made no warranties as to the successful termination of the cause of action, and all expressions made by attorney relative thereto are matters of attorney’s opinion only.
“102. Dr. McCartney’s entire legal malpractice claim against Mr. Noah as specifically pled in his Cross-Claim is premised on Mr. Noah’s alleged negligence in not filing Dr. McCartney’s antitrust case in federal court under Section 2 of the Sherman Antitrust Act as opposed to in state court under state theories. . . .
“103. Dr. McCartney himself has admitted he is not ‘making any claims against Mr. Noah in this case other than what is set forth in the Cross-claim.’. . .
“104. . . . Dr. McCartney’s responses to Defendant Don W. Noah’s ... interrogatories . . . describe no claim in addition to the claims set forth in Dr. McCartney’s filed Cross-claim. ...
“105. Prior to receipt of the Cross-claim by Dr. McCartney, Mr. Noah received a letter from Dr. McCartney’s attorney, Bert Braud, which outlined the factual basis for Dr. McCartney’s legal malpractice claim. . . .
“106. Mr. Braud’s letter of September 12, 1995 to Mr. Noah stated the basis of Dr. McCartney’s malpractice claim was that Dr. McCartney’s ‘... case clearly should have been filed in federal court, alleging violation of the Sherman AntiTrust Act.’ Mr. Braud’s letter further states that [under Section 2 of die Sherman Antitrust Act] ‘. . . an attempt to monopolize would have been easy to prove, a conspiracy to monopolize was impossible to prove.’ . .
“107. Dr. McCartney has designated Brian G. Grace, an attorney affiliated with the Wichita law firm of Grace, Unruh & Pratt, L.C., as his legal malpractice expert. . . .
“108. Mr. Grace is not holding himself out as an expert in antitrust law. . . .
“109. Mr. Grace has never been involved in litigation filed under state antitrust laws. . . .
“110. Mr. Grace is ‘not so sure [he] [has] ever even looked at an antitrust state or federal [statute] for what Dr. McCartney had.’ . . .
“111. Regarding Kansas antitrust statutes, Mr. Grace ‘did absolutelyno research whatsoever other than to read the briefs, memoranda, and opinions issued in this case.’ . . .
“112. Mr. Grace does not have any litigation experience with the Packers & Stockyards Act and he is positive he has never evaluated any cases under the Packers & Stockyards Act. . . .
“113. Mr. Grace admits he knows nothing about Mr. Noah’s experience in complex business litigation. ...
“114. Mr. Grace has not done the work that would be necessary to determine if Dr. McCartney had a viable federal antitrust case, ‘[b]ut if there [was] one, [he] would be terribly surprised.’ He just doesn’t think one exists. . . .
“115. Mr. Grace doesn’t have much of an opinion and he was pretty skeptical about whether there was any kind of a federal lawsuit or any lawsuit as far as that goes. ...
“116. Mr. Grace admits there were no viable legal theories pertaining to Dr. McCartney’s case which Mr. Noah should have, identified and did not identify. . . .
“117. Mr. Grace admits ‘the- issue that was ultimately decided by the Kansas Court of Appeals was not an issue that had been previously litigated and decided in the Kansas Court.’. . .
“118. Mr. Grace is not aware of any Kansas cases which existed prior the time the Court of Appeals issued its decision in the underlying litigation which held that a conspiracy was required to be proved under all of the statutes that Mr. Noah ^vas pleading on behalf of Dr. McCartney in the underlying litigation. . . .
“119. Mr. Grace’s initial report with respect to this matter was set forth in a letter dated June 6, 1996 ....
“120. Mr. Grace’s second and final report is set forth in a letter dated November 21, 1996. ...
“121. It is Mr. Grace’s opinion ‘that a reasonably prudent attorney reading the Kansas Statutes relied upon by Mr. Noah would, based upon simply reading the statutes, reach a conclusion that Dr. McCartney had no viable claim under those statutes.’ ...
“122. It is Mr. Grace’s opinion that Mr. Noah should have consulted an expert to interpret the Kansas Antitrust Statutes. However, Mr. Grace did not think it was necessary that he [Mr. Grace] consult with an expert himself in interpreting the Kansas Statutes and prior to rendering an opinion that Mr. Noah committed malpractice. ...
“123. Mr. Grace is also of the opinion that Mr. Noah should have referred Dr. McCartney’s case to another attorney so that the case could-have been filed in federal court rather than state court. . . .
“124. Mr. Noah’s expert, George Leonard, an attorney possessing expertise in-federal and state antitrust law, is of the opinion that Dr. McCartney’s claims were properly filed in state court as opposed to federal court. . . .
“125. Dr. McCartney admits that prior to June, 1995, he was informed he need[ed] to get in gear and get someone lined up for filing this [the federal case] in federal court before the statute of limitations expire[d] in June of 1995.’ . . .
“126. Dr. McCartney also admits he was aware in January, 1995,'that Mr. Noah was not going to pursue a federal action on his behalf. ...
“127. Dr. McCartney knew in January, 1995 that if he was going to pursue a federal antitrust case, he was going to have to find an attorney other than Mr. Noah to file that claim. ...
“128. Dr. McCartney, from early on in the underlying litigation, was informed by Mr. Noah that the statute of limitations on a federal antitrust action would expire in June, 1995. ...
“129. In the time between January, 1995 and June, 1995, Dr. McCartney met and discussed his case with several attorneys. ...
“130. In early 1995, Mr. Noah informed Dr. McCartney that he [Noah] had spoken with Lyle Koenig and Mr. Koenig felt that Dr. McCartney’s federal case had merit and Mr. Koenig would take it but he would be unable to take it on a contingent-fee basis. . . .
“131. In the early part of 1995, Dr. McCartney contacted attorney Percy Collins. . . .
“132. After contacting Mr. Collins, Dr. McCartney met with Darrell E. Miller on March 8, 1995 and discussed his federal antitrust case, with him. Mr. Miller reviewed various materials provided to him by Dr. McCartney, and provided him with a written analysis of his claims on April 10, 1995, but did not suggest that Dr. McCartney pursue his claims under the Sherman Antitrust Act notwithstanding the fact Dr. McCartney discussed this issue with him, and paid Mr. Miller for an opinion as all aspects of his case. . . .
“133. Following his discussions with Mr. Miller, Dr. McCartney met with Attorney Jan Hamilton on April 26, 1995 . . . and discussed with Mr. Hamilton the federal action against FLCC under Section 2 of the Sherman Antitrust Act. In May of 1995, Mr. Hamilton specifically advised Dr. McCartney of impending statute of limitation difficulties, and provided him with names of other attorneys to consult concerning his antitrust claim.....
“134. Notwithstanding his consultation with numerous attorneys between January, 1995, and June, 1995, Dr. McCartney consciously decided not to file a cause of action in federal court under the Sherman Antitrust Act. . . .
“135. Mr. Grace admits an attorney can never absolutely insulate a client from being sued in a malicious prosecution action that has no merit. . . .
“136. Dr. McCartney, through his attorney, has declared the malicious prosecution claim against him is baseless and without merit. . . .
“137. One of the assumptions supporting Mr. Grace’s opinions set forth in his ■November 21, 1996 letter is that the Nelson v. Miller case requires an attorney to send a demand letter prior to filing a lawsuit in every case. . . .■
“138. It is Mr. Grace’s opinion the Nelson v. Miller case requires an attorney to send a demand letter regardless of the circumstances the attorney is faced with. ...
“139. Mr. Grace denies there is language in the Nelson v. Miller case that indicates an attorney can proceed with the filing of a lawsuit without sending a demand letter if the attorney has a concern with regard to the statute of limitations. . . .
“140. Dr. McCartney asserts in his deposition that at his first meeting with Mr. Noah in October of 1991, Mr. Noah represented to him his case could be ready for trial for a total of $12,000. ...
“141. Prior to fifing suit, Mr. Noah provided Dr. McCartney with a fee estimate regarding attorneys fees which might be incurred in the underlying litigation to get into the books of the FLCC parties indicating to Dr. McCartney that ‘[He] had no idea.’ However, Dr. McCartney kept pressing to obtain Mr. Noah’s best judgment. Mr. Noah finally advised Dr. McCartney that ‘. . . I don’t know how hard they’re going to fight. . . . [I]t could be anything from 12, 15, or 20, or 25. I don’t know.’ . . .
“143. At the time that the alleged discussion concerning a $12,000 estimate to get the case ready for trial, Dr. McCartney ‘understood at the time that [he] had that discussion that it was in fact an estimate.’ . . .
“145. Dr. McCartney also understood that at the time Mr. Noah gave the alleged estimate of $12,000, Mr. Noah had not done any investigation of the case; had not had an opportunity to review Dr. McCartney’s records or the records of the FLCC; had not had the opportunity to do any research into the law applicable to Dr.' McCartney’s case; did not know the specifics of the type of claim that eventually might be filed; and, did not know whether the claim would be filed at all. . . . ■
“146. It was shortly after this initial meeting with Mr. Noah that Dr. McCartney received, by mail, a contract of employment from Mr. Noah. . . .
“147. After reviewing the employment agreement, and noting there was no reference to the $12,000 amount in the agreement, Dr. McCartney signed the agreement and sent it with a check for $5,000 to Noah. . . .
“148. Dr. McCartney admits that in October, 1991, he did not bring to Mr. Noah’s attention the fact that the employment agreement did not contain the $12,000 estimate....
“149. The Contract of Employment does not speak to any limitation on the fees to be incurred by Mr. Noah. . . .
“150. The contract Dr. McCartney entered into and bound himself to was for a specified hourly fee for the ‘time actually and necessarily spent on the matter.’
“151. Mr. Noah’s expert has concluded ‘the time spent on the particular items of legal work by Noah was reasonable.’ . . .
“152. Dr. McCartney has no reason to believe Mr. Noah did not actually work the hours charged Dr. McCartney and Dr. McCartney admits he agreed to pay Mr. Noah on an hourly basis. . . .
“153. Dr. McCartney admits Mr. Noah was putting in the hours he was charging in an effort to further Dr. McCartney’s position in the underlying litigation. . . .
“154. Dr. McCartney believes Mr. Noah andhis firm‘were charging an accurate amount for the work that they were doing.’ . . .
“155. Dr. McCartney admits he left it up to Mr. Noah to ‘do what was necessary in terms of the theories of the case, where the case was filed, what amendments to pleadings were made, that sort of thing, anything having to do with legal decisions.’ . . .
“156. Dr. McCartney testified he found Mr. Noah to be very fair and truthful in his dealings with him. . . .
“157. Dr. McCartney admits there were never any written objections made by him or on his behalf to the periodic billings sent to him by Mr. Noah. . . .
“158. It was Dr. McCartney’s practice that when a bill came in from Mr. Noah he would review it and read it over to check on what Mr. Noah had been doing and to see the details of the work that had been done before turning the bill over to his wife to pay. . . .
“159. Dr. McCartney voluntarily paid all of the attorneys’ fees and expenses incurred by Mr. Noah in the underlying litigation except for $4,733.21 that has yet to be paid by Dr. McCartney and is the subject of the Cross-claim filed by Mr. Noah. ...
“160. The oral objections Dr. McCartney alleges he made to Mr. Noah concerning billing were not that Mr. Noah and Mr. Woods were charging an inaccurate amount for file work that they were doing, but rather ‘were more along the lines of their inability to project what the costs of [the] case was going to be. .
“161. Dr. McCartney admits that during the underlying litigation ‘[t]here was regular discussions [between him and Noah] of what it would cost to get to the next plateau.
“162. Dr. McCartney testified that when plateaus would be reached ‘the actual costs were always well beyond the estimates.’ . . .
“163. Further, Mr. Noah gave Dr. McCartney the opportunity at each step of the litigation to terminate the litigation should he choose to do so. . . .
“164. Dr. McCartney admits the underlying ligation ‘turned out to be a very difficult case.
“165. During the underlying litigation, Dr. McCartney expressed his opinion on his case as follows:'. . . I feel this case has now evolved into a legal marathon, one whose winner will be the one who is able to sacrifice the most in energy, perseverance, money and whatever else is necessary to come out on top.’ . . .
“166. Dr. McCartney contends he only made payments to Mr. Noah after the alleged estimate of $12,000.00 was exceeded because Mr. Noah assured him they would be successful in the lawsuit and as part of that success Dr. McCartney would recover all of his attorneys’ fees and expenses. . . .
“167. The contract entered into by Dr. McCartney expressly states that ‘[ajttomey has made no warranties as to the successful termination of the cause of action, and all expressions made by attorney relative thereto are matters of attorney’s opinion only.’. . .
“168. Dr. McCartney cannot point to ‘any correspondence or any documentation of any kind whatsoever . . . that reflects that Mr. Noah ever told [McCartney] that he was sure that they were going to win the underlying litigation.’ . . .
“169. In September of 1992, as the underlying ligation progressed, Dr. McCartney expressed to Mr. Noah his [Dr. McCartney’s] concern that FLCC might win the underlying litigation. . . .
“170. In a memo written by Dr. McCartney in approximately February, 1993, shortly after the depositions of the Dreesens and the Bergstroms in the underlying litigation, Dr. McCartney wrote the following: ‘I feel this case has now evolved into a legal marathon, one whose winner will be the one who is able to sacrifice the most in energy, persverance, money and whatever else is necessary to come out on top.’ . . .
“171. Dr. McCartney recalls Mr. Noah told him when the underlying litigation first got under way that the case would be like a roller coaster. ‘Some days will be up, and some days will be down.’ . . .
“172. Prior to the taking of Dr. McCartney’s deposition in the underlying litigation, Mr. Noah warned Dr. McCartney that if it was established he knew about FLCC parties’ activities prior to June of 1991, Dr. McCartney would lose his case. . . .
“173. Dr. McCartney understood that what the jury decided at the trial of the case would depend in part upon whether or not the jury believed the testimony of Dr. McCartney and his expert Mr. Woods. . . .
“174. The only conversation Dr. McCartney can specifically recall wherein he alleges Mr. Noah gave him assurances of success in the underlying litigation is a conversation which occurred in the spring or summer of 1993. . . .
“175. Dr. McCartney’s recollection of his conversation with Mr. Noah in the spring or summer of 1993 is as follows:
‘Q. What words did Mr. Noah use to express that to you sir?
‘A. I think I just asked him one day what he would project in this case, and his response is that he had seen several of these comparable type cases, and worst case scenario is they will only think we were damaged to a slight amount all the way up to they will accept the fact of what Rex Woods is projecting. But he said, more than likely, they would award you somewhere in between.
“And so 1 felt that what he was telling me was that the results of this trial was going to be that I was going to get recovery of cost of action and that the jury was going to award us somewhere in between and the $100,000 roughly that Rex Woods is projecting as an expert witness and whatever that amount was would automatically be tripled.’
“176. Dr. McCartney admits the alleged conversation he had with Mr. Noah in the spring or summer of 1993 was nothing more than a projection by Mr. Noah. . . .
“177. Dr. McCartney understands that projections at times are realized and at times they are not realized. . . .
“178. . . . Mr. Leonard’s qualifications as an antitrust expert, and opinions regard Dr. McCartney’s malpractice claim, are set forth in detail in Mr. Leonard’s Affidavit which is incorporated herein by .this reference. Mr. Leonard has practiced in the area of antitrust law for over thirty years, and has handled a wide variety' of antitrust matters in both state and federal courts during the course of Inis practice. In summary, it is Mr. Leonard’s opinion that:
‘(a) Mr. Noah’s decision to file Dr. McCartney’s claims in state court rather than federal court was not only a defensible decision, but the correct decision;
‘(b) Mr. Noah’s fees and estimate of fees in the underlying litigation were reasonable; and
‘(c) The underlying litigation filed by Mr. Noah had a sound chance of success.’ ”
DISCUSSION AND ANALYSIS
Standard Of Review
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. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131-32, 955 P.2d 1189 (1998).
An issue of fact is not genuine unless it has legal controlling force as to the controlling issue. The disputed question of fact which is immaterial to the issue does not preclude summary judgment. If the disputed fact, however resolved, could not affect the judgment, it does not present a genuine issue of material fact. Seabourn v. Coronado Area Council, B.S.A., 257 Kan. 178, 189, 891 P.2d 385 (1995).
The McCartneys filed their cross-claim of legal malpractice on the basis that Noah was negligent in not filing the antitrust action in a federal district court on the basis of Section 2 of the Sherman Antitrust Act. This constituted their sole theory up until the time they responded to Noah’s motion for summary judgment. In their response to Noah’s motion for summary judgment, the Mc-Cartneys then claimed a second theory, viz., that Noah should never have filed the antitrust action at all. The trial court resolved this case by granting summary judgment to Noah on both theories, referring to the McCartneys’ second theory as the “mutated claim.”
SECTION 2 OF THE SHERMAN ANTITRUST ACT
The McCartneys claimed that Noah breached his duty and was negligent in causing damages to the McCartneys by failing to prosecute the McCartneys’ claim against the FLCC parties in federal court under Section 2 of the Sherman Antitrust Act. The trial court disposed of this contention based primarily upon the affidavit in an opinion letter from Noah’s legal expert in antitrust matters, George E. Leonard. A summary of Leonard’s opinion is contained in finding No. 178, stating “Mr. Noah’s decision to file Dr. McCartney’s claims in state court rather than federal court was not only a defensible decision, but the correct decision.”
The trial court rejected the opinion of the McCartneys’ legal expert, Brian Grace, because “Mr. Grace conceded his lack of expertise in the area of antitrust law and the Kansas statutory law upon which Mr. Noah proceeded.” On this issue, the trial court concluded: “It appears to the Court that the McCartneys essentially have no expert testimony to support their claims. ‘Expert testimony is generally required and may be used to prove thé standard of care by which the professional activities of an attorney are measured ....’” (quoting Bowman v. Doherty, 235 Kan. 870, Syl. ¶ 7, 686 P.2d 112 [1984]).
The McCartneys did not argue before the trial court that expert testimony on the subject was not necessary or that Grace, their expert, was qualified as an expert on that subject of antitrust litigation. On appeal, the McCartneys have abandoned their claim that Noah should have filed the Kansas antitrust action in federal court. Neither in their brief nor at oral argument do they address this aspect of the trial court’s award of summary judgment. “Where the appellant fails to brief an issue, that issue, is waived or abandoned.” Pope v. Ransdell, 251 Kan. 112, 119, 833 P,2d 965 (1992). Based upon the record arid uncontroverted facts as found by the trial court, we affirm the summary judgment granted to Noah on the McCartneys’ claim that Noah was negligent and guilty of malpractice in not prosecuting the claim under Section 2 of the Sherman Antitrust Act.
THE MUTATED CLAIM
. In their response to the summary judgment before the trial court, the McCartneys also argued a theory not raised by their pleading. Their new claim was that Noah should never have filed the underlying state antitrust action at all. The trial court elected to address the McCartneys’ new claim which it referred to as the “mutated claim.” Noah did not file a cross-appeal from this decision and is not now in á position to claim that the trial court erred in addressing the McCartneys’ mutated claim. Moreover, under the provisions of K.S.A. 60-215(b), and Anderson v. Heartland, 249 Kan. 458, 470-71, 819 P.2d 1192 (1991), cert. denied 504 U.S. 912 (1992), while the McCartneys’ mutated claim was not a theory pled in their cross-claim, it was adequately raised by the McCartneys and was an issue to be addressed within the sound discretion of the trial court.
In resolving the mutated claim, the trial court concluded:
“At oral arguments it became apparent that the McCartneys’ claim has mutated during the course of discovery. It appears that the cross-claimants now allege that Noah should not have filed this lawsuit in the first place. In other words, the cross-claimants’ position is similar to the position taken by the plaintiffs [FLCC parties] in this malicious prosecution suit. In its Memorandum Decision dated June 4, 1997, the Court ruled that Noah and his clients had a reasonable claim when they commenced the underlying litigation [Kansas antitrust action]. This court reaffirms those findings and rulings and incorporates them by reference herein. Accordingly, McCartneys’ last claim is untenable.”
The memorandum decision referred to by the trial court was its grant of summary judgment to Noah in the malicious prosecution action. This court, in a separate opinion, affirmed the trial court’s award of summary judgment in that action. See Bergstrom v. Noah, 266 Kan. 829, 974 P.2d 520 (1999). Thus, the question we are called upon to resolve by this appeal is whether the trial court was correct in its determination that die filing and pursuing of the Kansas antitrust action by Noah did not constitute negligence and was not malpractice.
In Hunt v. Dresie, 241 Kan. 647, 660, 740 P.2d 1046 (1987), we addressed legal malpractice and held that in order to prevail on a claim of legal malpractice, a plaintiff is required to show (1) the duty of the attorney to exercise ordinary skill and knowledge, (2) a breach of that duty, (3) a causal connection between the breach of duty and the resulting injury, and (4) actual loss or damage. Hunt v. Dresie involved a complicated set of facts growing out of multiple lawsuits filed between parties previously .involved in a partnership. Highly summarized, Hunt sued his attorney, Dresie, who had represented him by filing a previous action against his partner, Sampson: Sampson filed suit against Hunt for malicious prosecution. Judgment was entered against Hunt for malicious prosecution in an amount of $20,000 actual damages and $600,000 punitive damages. See Sampson v. Hunt, 233 Kan. 572, 577, 665 P.2d 743 (1983).
After the entry of the malicious judgment against him, Hunt sued his attorneys, claiming they were (1) negligent in filing two cases against his former partner Sampson and (2) negligent for failing to assert the advice of counsel defense in the malicious prosecution action. The district court held that the defendant’s' attorneys lacked probable cause to file the two cases and were negligent as a matter of law in doing so. 241 Kan. at 654.
Even though a determination had been made in Sampson that probable cause was lacking in the filing of the two lawsuits, we noted that in the matter of attorney malpractice, negligence is a question normally decided by the trier of fact:
“The difficulty herein lies in the fact that the finding of negligence was made in a motion for summary judgment. Had the finding been made following a bench trial, we would be in an entirely different situation on appellate review. Whether or not defendants were negligent in filing the suits depends upon the totality of the circumstances as determined by the trier of facts. Because district judges and appellate court judges are, themselves, attorneys, they naturally have opinions as to whether or not certain conduct constitutes legal malpractice. It is easy to slip into the trap of deciding such questions ‘as a matter of law.’ Not having a like expertise in other professions such as medicine or architecture, the issues of professional negligence there are routinely submitted to juries. Nevertheless, claims of legal malpractice, like other forms of malpractice, are normally to be determined by the trier of fact rather than by summary judgment.” 241 Kan. at 656.
The mutated claim in this case is one of legal malpractice and involves the issue of professional negligence. The McCartneys argue that Hunt v. Dresie requires reversal of the summary judgment and remand for a factual determination of negligence. However, while we have held that questions of professional negligence should be left to the trier of fact, there is a recognized exception to this rule. When, under the totality of circumstances as demonstrated by the uncontroverted facts, a conclusion may be reached as a matter of law that negligence has not been established, judgment maybe entered as a matter of law. See Phillips v. Carson, 240 Kan. 462, 472-73, 731 P.2d 820 (1987).
The trial court in its grant of summary judgment concluded that the McCartneys’ legal malpractice action was untenable because probable cause existed for the filing of the Kansas antitrust action. In this respect, this case differs from Hunt which relied on the judicial determination in Sampson that probable cause did not exist for the filing of the underlying two actions. We disagree with the trial court that a finding of probable cause to file the antitrust action alone supports summary judgment in the malpractice action at hand. At most, it is a factor to be considered in determining whether summary judgment was proper. However, “[a] trial court decision which reaches the right result will be upheld, even though the trial court may have relied upon the wrong ground or assigned erroneous reasons for its decision.” Bank of Kansas v. Davison, 253 Kan. 780, 792, 861 P.2d 806 (1993).
Both before the trial court and on appeal, the McCartneys rely upon the deposition testimony and letter opinions of their legal expert, Brian Grace. They contend that his opinion alone raises genuine issues of material fact which requires us to reverse summary judgment in this case. In his report, Grace states:
“Mr. Noali had the responsibility as a practicing attorney to use that decree of learning and skill ordinarily possessed by members of our profession under circumstances such as he faced. He. had the obligation to do so with ordinary care and diligence.,It is my opinion that he breached that obligation by his various acts of omission and commission, which are discussed below. It is further my opinion that the breach of that duty by Mr. Noah has caused damages to Dr. McCartney. . . .
“The cumulative effect of the material discussed above is that Dr. McCartney should have been told that filing suit in state court, as proposed by Mr. Noah, was highly speculative, almost certainly a waste of substantial money and likely to lead to retaliatory litigation. It .does not appear that advice was ever given to Dr. McCartney.”
The trial court in its memorandum decision rejected the testimony of Grace because “in the course of discovery, Mr. Grace conceded his lack of expertise in the area of antitrust law and the Kansas statutory law upon which Mr. Noah proceeded.” The court underscored this conclusion in its finding of fact:
“108. Mr. Grace is not holding himself out as an expert in antitrust law. . . .
“109. Mr. Grace has never been involved in litigation filed under state antitrust laws. ...
“110. Mr. Grace is ‘not so sure [he] [has] ever even looked at an antitrust state or federal [statute] for what Dr. McCartney had.’. . .
“111. Regarding Kansas antitrust statutes, Mr. Grace ‘did absolutely no research whatsoever other than to read the briefs, memoranda, and opinions issued in this case.’ . . .
“112. Mr. Grace does not have any litigation experience with the Packers & Stockyards Act and he is positive he has never evaluated any cases under the Packers & Stockyards Act. . . .
“113. Mr. Grace admits he knows nothing about Mr. Noah’s experience in complex business litigation. . . .
“114. Mr. Grace has not done the work that would be necessary to determine if Dr. McCartney had a viable federal antitrust case, ‘[b]ut if there [was] one, [he] would be terribly surprised.’ He just doesn’t think one exists. . . .
“115. Mr. Grace doesn’t have much of an opinion and he was pretty skeptical about whether there was any kind of a federal lawsuit or any lawsuit as far as that goes. . . .
“116. Mr. Grace admits there were no viable legal theories pertaining to Dr. McCartney’s case which Mr. Noah should have identified and did not identify. . . .
“117. Mr. Grace admits ‘the issue that was ultimately decided by the Kansas Court of Appeals was not an issue that had been previously litigated and decided in the Kansas Court.’ . . .
“118. Mr. Grace is not aware of any Kansas cases which existed prior the time the Court of Appeals issued its decision in the underlying litigation which held that a conspiracy was required to be proved under all of the statutes that Mr. Noah was pleading on behalf of Dr. McCartney in the underlying litigation.”
In granting summary judgment in the malicious prosecution action filed against the McCartneys and Noah, the trial court concluded that probable cause existed for filing the Kansas antitrust action based upon the questionable state of antitrust law in Kansas:
“The Court further concludes that the named defendants had a sufficient basis in the law which amounted to probable cause for filing the underlying lawsuit. Don Noah concluded that the lawsuit should be filed under K.S.A. 50-101, K.S.A. 50-132, K.S.A. 50-112 and K.S.A. 50-801. Noah relied on these statutes as authority that offered a reasonable probability of injunctive relief and damages to his client. K.S.A. 50-112, and other statutes relied on by the plaintiffs in the underlying litigation are broad and undeveloped by case law. Therefore, Mr. Noah could have reasonably believed that McCartney’s claim, even with the difficult issue of conspiracy, would be a suitable vehicle to develop the law of this state. Hindsight notwithstanding, the Court concludes that a colorable claim existed.”
In Bergstrom v. Noah, 266 Kan. 829, we examined the statutes above referenced by the trial court and the state of antitrust law in Kansas at the time Noah filed the Kansas antitrust lawsuit on behalf of the McCartneys. We concluded that the statutes were broad and there had been no meaningful interpretation of the statutes in Kansas. We noted that statutes relied upon by Noah were enacted in 1889, 1897 (a year before Congress passed the Sherman Act), and 1899, and had been virtually ignored since then, providing little if any guidance for lawsuits brought under the statutes. We further noted that although the Court of Appeals in the underlying anti trust action had found that the standards set by the Sherman Antitrust Act should apply, until that decision by the Court of Appeals, the matter was by no means setded. We held that given the state of antitrust law in Kansas and the uncontroverted facts, Noah’s belief that there was a sound chance the claims made in the antitrust action might be held legally valid upon adjudication was not an unreasonable one.
In Hunt v. Dresie, we dealt with the defense of error of judgment in a legal malpractice case. We recognized such a defense but cautiously noted:
“ ‘In one legal malpractice treatise, the authors point out a problem with the concept [of error of judgment]. “Notwithstanding centuries of applying the error of judgment rule in attorney malpractice actions, the courts have not analyzed or defined the judgmental process being protected.” Mallen and Levit, Legal Malpractice § 211, p. 299 (2d ed. 1981).
“ ‘Mallen and Levit propose the following analysis of error of judgment:
“ ‘ “Nevertheless, a client is entitled to the benefit of an informed judgment. When the issue is one that is settled and can be identified through ordinary research and investigation techniques, an attorney should not be able to avoid liability by claiming the error was one of judgment. On the other hand, when tire proposition is one on which reasonable lawyers could disagree or which involves a choice of strategy, air error of informed judgment should not be gauged by hindsight or second-guessed by air expert witness. [Emphasis in original.]” Mallen and Levit, Legal Malpractice § 215, p. 311.’ ” 241 Kan. at 658.
The legal basis for the underlying Kansas antitrust case filed by Noah was an open question which had not been interpreted in any meaningful way by a court in this state. Grace, the legal expert for the McCartneys, recognized this fact: “I don’t know of any [cases] because the issue that was ultimately decided by the Kansas Court of Appeals [in the underlying antitrust litigation] was not an issue that had been previously litigated and decided in the Kansas courts.”
Nevertheless, Grace concluded without research and with an admitted lack of expertise in antitrust law:
‘We have a statutory right. It either is there or it isn’t there. And to go in and, in effect, try to accomplish something that is permitted under Sherman Act section two under the Kansas antitrust laws which do not read the same, they are not the same statutes, it is simply not possible. And I don’t know what the problem was in understanding that. Granted, no one had litigated that specific question. But that does not make it a legitimate candidate to spend thousands and thousands of dollars of your client’s money.”
On the other hand, Leonard, the legal expert employed by Noah, who was an acknowledged expert in antitrust litigation, noted that “Kansas antitrust laws were not the subject of extensive or existing case decisions. . . . Kansas Courts were not required to follow Federal antitrust decisions.” Leonard opined that K.S.A. 50-101 is veiy broad in defining a “trust” as a combination of “two or more persons” and stated that it was not unreasonable to believe that the court might apply K.S.A. 50-101, literally, and look to the combination of Bergstroms and Dreesens as “two or more persons” for purposes of satisfying the conspiracy element. Leonard concluded that given the broad language of K.S.A. 50-101 and the lack of controlling authority in Kansas, it would be reasonable to try to persuade the court not to follow the federal rule that a corporation cannot conspire with its own agents. Further, given the unquestioned existence of some improper, if not illegal, activities by the FLCC parties which Noah had prior to the filing of the lawsuit, Leonard concluded that it would not be unreasonable for a lawyer to think that a court would be lenient or liberal to a Kansas plaintiff in its rulings applying the “conspiracy” portions of the Kansas statutes. Leonard also noted that the extraordinary remedy created by K.S.A. 50-103, which calls for the forfeiture of a corporate charter if the defendant loses an antitrust case was, in his opinion, an additional factor favoring the filing of this action in state court.
In this case, we deal with broad remedies created by statutes which have not been interpreted in any meaningful manner by a court in this state. The discussion above indicated that the antitrust laws are ones “on which reasonable lawyers could disagree.” Moreover, there is no question that a lawyer could not by reading the statutes alone determine how a court in this state would rule or interpret such statutes.
“If an attorney acts in good faith and in an honest belief that his or her acts and advice are well founded and in the best interest of the client, the attorney is not hable for a mere error in judgment. Thus, an informed judgment on the part of counsel, even if subsequently proved erroneous, is not negligence. . . . [A]n attorney is not hable for an error in judgment on points of new occurrences or doubtful construction, or for a mistaken opinion on a point of law that has not been settled by a court of last resort and on which reasonable doubt may well be entertained by informed lawyers.” 7 Am. Jur. 2d, Attorneys At Law § 221.
The laws relied upon by Noah were unsettled and had not been interpreted by any court in this state. At the time the underlying action was filed, the underlying action advanced by Noah was one on which reasonable doubt may well be entertained by informed lawyers. While the exception for an error in judgment in legal malpractice actions is a narrow one and should not be employed where the issue is settled and can be identified through ordinary research and investigative techniques, the exception applies in a case such as this, where the law is unclear, unsettled by case law, and is an issue or issues upon which reasonable doubt may well be entertained by informed counsel.
Moreover, the trial court entered findings of fact which support a conclusion that Noah acted in good faith in advancing the underlying antitrust action. The court found that the uncontroverted facts established that Noah neither instituted nor pursued the McCartneys’ claims against the FLCC parties out of an improper motive. We conclude the error in judgment concerning the legal viability of the underlying Kansas antitrust action filed by Noah is not a basis for a claim of legal malpractice under the facts and circumstances set forth in this opinion.
The McCartneys argue that even with respect to an unsettled area of the law, an attorney assumes an obligation to undertake reasonable research in an effort to ascertain relevant principles, and to make an informed decision as to a course of conduct based on an intelligent assessment of the problem. In support of this contention, they cite Williams v. Preman, 911 S.W.2d 288, 304 (Mo. App. 1995), wherein the Missouri Court of Appeals stated:
“ ‘A lawyer is not liable in damages to his client for a mere error in judgment on a legal proposition concerning which enlightened legal minds may fairly differ. But the same degree of diligence is required of a lawyer that is required of other men employed to render services of a technical or scientific character; and if the error is such as to evince negligence he is liable.’ ” (quoting James Carr’s Executrix v. Glover, 70 Mo. App. 242, 247 [1897]).
The McCartneys argue that Noah advanced two claims in the underlying antitrust action: (1) a conspiracy to monopolize and (2) an attempt to monopolize. According to the McCartneys, the law is well settled' on both counts. They apparently rely upon their conclusion that the law was “well settled” because the Court of Appeals, in deciding the underlying antitrust case, concluded that “Kansas law is clear that in order to proceed under any of these statutes, evidence of a conspiracy or trust between two or more persons or entities must be present.” However, we note that until the decision of the Court of Appeals in the underlying action, that proposition of law was not at all clear in Kansas. We disagree with the Court of Appeals’ conclusion that Kansas law was clear or that the proposition was well settled at the time the underlying case was presented.
The McCartneys also argue that a question of material fact remains concerning professional advice given by Noah that it would cost no more than $12,000 to bring the case to trial. The argument is that even though the claim advanced by Noah may have been a “colorable claim,” an attorney has the obligation not to advance a claim where the cost of bringing the claim far exceeds the hoped-for recovery. The McCartneys argue that if they had known that pursuing the claim would have cost even $50,000, they would have chosen not to pursue it.
The following facts as found by the trial court in this case demonstrate that the purported factual dispute between the Mc-Cartneys and Noah concerning the amount of fees necessary to bring the. underlying antitrust action to trial is not material and does not create a genuine issue of material fact:
"141. Prior to filing suit, Mr. Noah provided Dr. McCartney with a fee estimate regarding attorneys fees which might be incurred in the underlying litigation to get into the books of the FLCC parties indicating to Dr. McCartney that ‘[He] had no idea.’ However, Dr. McCartney kept pressing to obtain Mr. Noah’s best judgment. Mr. Noah finally advised Dr. McCartney that ‘. . . I don’t know how hard they’re going to fight. . . . [I]t could be anything from 12,15, or 20, or 25. I don’t know.’...
“143. At the time that the alleged discussion concerning a $12,000 estimate to get the case ready for trial, Dr. McCartney ‘understood at the time that [he] had that discussion that it was in fact an estimate.’...
“145. Dr. McCartney also understood that at the time Mr. Noah gave the alleged estimate of $12,000, Mr. Noah had not done any investigation of the case; had not had an opportunity to review Dr. McCartney’s records or the records of tire FLCC; had not had the opportunity to do any research into the law applicable to Dr. McCartney’s case; did not know the specifics of the type of claim that eventually might be filed; and, did not know whether the claim would be filed at ah.”
While there may have been a dispute between the McCartneys and Noah as to whether a $12,000 or a $25,000 estimation of fees was necessary to bring the case to trial, it was clear that the amount given by Noah was an estimate after a brief half hour to an hour and a half meeting among Noah, the McCartneys, and Rex Wood, C.P.A. No documents were exchanged at this meeting and, generally, the meeting involved Roger McCartney telling Noah that he believed the FLCC parties were offering their customers free trucking as an illegal or improper inducement to do business with the FLCC. The McCartneys’ major purpose in obtaining counsel was Roger McCartney’s recognition of the need to obtain the books and records of the FLCC so his accountant, Wood, could establish his theory and support his belief of improper activity.
Another undisputed point identified by the trial court is that Noah advised that he would not take the case on a contingent basis but would take the case on an hourly basis under contract:
“146. It was shortly after this initial meeting with Mr. Noah that Dr. McCartney received, by mail, a contract of employment from Mr. Noah. . . .
“147. After reviewing the employment agreement, and noting there was no reference to the $12,000 amount in the agreement, Dr. McCartney signed the agreement and sent it with a check for $5,000 to Noah. . . .
“150. The contract Dr. McCartney entered into and bound himself to was for a specified hourly fee for the ‘time actually and necessarily spent on the matter.’
“151. Mr. Noah’s expert has concluded ‘the time spent on the particular items of legal work by Noah was reasonable.’ ”
The above facts as found by the trial court in its grant of summary judgment established that the McCartneys knew the amount of the fee was an estimate and that the basis of the fee would be on an hourly rate according to an agreement signed by both of the parties. Regular statements were presented by Noah and paid by Roger McCartney. The contract of employment signed by Noah and McCartney provided:
“1. The Client retains and employs the Attorneys for the purpose of instituting, prosecuting, or adjusting a claim or claim's as may be deemed advisable by Attorneys to recover on behalf of Client for an injunction and damages against Farmers Livestock Commission Company, Inc., and the owners and operators thereof.
“2. The Attorneys agree to use their best efforts to assert or defend such claim and to secure for the Client such legal remedies as the Client may be entitled. It is understood that Attorneys shall have the exclusive right' to take all legal steps to prosecute the claim but that the Attorneys will not settle any claim without the approval of the Client.
“3. Clients agree to advance a suit fee of $5,000.00 to be deposited in attorneys Trust Account. The fee shall be applied against actual legal services performed for the client and for costs and expenses incurred. Attorneys will periodically account for withdrawals from the suit fee. Clients agree that the suit fee is not necessarily the total fee and agree to deposit additional funds as required to continue the matter.
“4. In consideration of the services performed and to be performed by the Attorneys, the Client agrees to pay Eighty-five dollars ($85.00) per hour for Don W. Noah’s time, Seventy-five Dollars ($75.00) per hour for Jerry L. Harrison’s time, and Sixty-five Dollars ($65.00) per hour.for Mark J. Noah’s time actually and necessarily spent on the matter. Necessary travel at $0.25 per mile, copying costs, and toll charges to be paid at the actual costs expended.
“6. Attorney has made no warranties as to the successful termination of the cause of action, and all expressions made by attorney relative thereto are matters of attorney’s opinion only.”
Consistent with the contract, the uncontroverted facts show that regular statements regarding time spent in pursuit of the case by Noah were sent to the McCartneys:
“152. Dr. McCartney has no reason to believe Mr. Noah did not actually work the hours charged Dr. McCartney and Dr. McCartney admits he agreed to pay Mr. Noah on an hourly basis. . . .
“153. Dr. McCartney admits Mr. Noah was putting in the hours he was charging in an effort to further Dr. McCartney’s position in the underlying litigation. .■ . .
“154. Dr. McCartney believes Mr. Noáh and his firm ‘were charging an accurate amount for the work that they were doing.’. . .
“155. Dr. McCartney admits he left it up to Mr. Noah to ‘do what was necessary in terms of the theories of the ease, where the case was filed, what amendments to pleadings were made, that sort of thing, anything having to do with legal decisions.’ ...
“156. Dr. McCartney testified he found Mr. Noah to be very fair and truthful in his dealings with him. . . .
“157. Dr. McCartney admits there were never any written objections made by him or on his behalf to the periodic billings sent to him by Mr. Noah. . . .
“158. It was Dr. McCartney’s practice that when a bill came in from Mr. Noah he would review it and read it over to check on what Mr. Noah had been doing and to see the details of the work that had beeir done before turning the bill over to his wife to pay. . . .
“159. Dr. McCartney voluntarily paid all of the attorneys’ fees and expenses incurred by Mr. Noah in the underlying litigation except for $4,733.21 that has yet to be paid by Dr. McCartney and is the subject of the Cross-claim filed by Mr. Noah. . . .
“160. The oral objections Dr. McCartney alleges he made to Mr. Noah concerning billing were not that Mr. Noah and Mr. Woods were charging an inaccurate amount for the work that they were doing, but rather ‘were more along the lines of their inability to project what the costs of [the] case was going to be. .
“161. Dr. McCartney admits that during the underlying litigation ‘[t]here was regular discussions [between him and Noah] of what it would cost to get to the next plateau.
“162. Dr. McCartney testified that when plateaus would be reached ‘the actual costs were always well beyond the estimates.’. . .
“163. Further, Mr. Noah gave Dr. McCartney the opportunity at each step of the litigation to terminate the litigation should he choose to do so. . . .
“164. Dr. McCartney admits the underlying ligation ‘turned out to be a very difficult case.
“165. During the underlying litigation, Dr. McCartney expressed lfis opinion on his case as follows: ‘. . . I feel this case has now evolved into a legal marathon, one whose winner will be the one who is able to sacrifice the most in energy, perseverance, money andwhatever else is necessary to come out on top.’ ”
The McCartneys argue that the Kansas antitrust case should never have been filed and it was negligence to file the case. We conclude that ultimately Noah erred in his judgment that a legally viable claim existed under the antitrust laws of this state. This error, where the law is unsettled and subject to interpretation with very little guidance from a court of last resort and involving issues upon which attorneys with enlightened minds could disagree, constitutes an error of judgment under the narrow exception recognized in Hunt v. Dresie. Once it is established that no negligence was in volved in the filing of the Kansas antitrust action, the McCartneys’ claim that the fees paid constituted a waste of resources fails to stand. Roger McCartney entered into a contract of employment with Noah, the terms of which were clear and unambiguous. Among the important conditions of employment, the contract provided that Noah made no warranties as to the success of the action to be filed.
Throughout the case, there was no dispute concerning the time spent by Noah filing and pursuing the McCartneys’ antitrust action. The fees were based upon contract and subject to periodic review and payment by the McCartneys. There was no claim that the time expended by Noah was unreasonable. Based upon the record and uncontroverted facts as determined by the trial court, we conclude that summary judgment was appropriately entered.
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The opinion of the court was delivered by
ABBOTT, J.:
The Kansas Department of Social and Rehabilitation Sendees (SRS) obtained a support order against Vontella and Jimmy Keck for their daughter’s support. Their daughter Tracy was a ward of the court pursuant to a child in need of care proceeding from approximately age 12 to age 18. The Kecks filed a K.S.A. 60-260(b) motion attempting to set aside “the Journal Entiy of Judgment rendered June 1, 1993.”
The June 1993 journal entry ordered the Kecks to pay $455 per month in support commencing May 1, 1993. The Kecks were also ordered to pay all of their daughter’s medical, hospital, optometric, dental, and orthodontic expenses. In addition, judgment against the Kecks for past support in the amount of $13,450 was entered.
The parties stipulated at trial that a court order was entered on January 17, 1995, whereby SRS received an increase in the support payment from $455 a month to $525 a month. The parties also stipulated that the Kecks’ daughter reached the age of majority on September 16, 1996.
The Kecks were represented by counsel at each proceeding. The June 1, 1993, order was an agreed-upon journal entry of judgment. The parties also stipulated that the $13,450 had been paid down to $8,029 with an additional $1,017.70 being held by the trial court.
The district court denied the Kecks’ K.S.A. 60-260(b) motion (filed April 12, 1995) because more than 1 year had elapsed since the June 3, 1993, judgment. The district court ruled that it lacked jurisdiction to reach the Kecks’ equal protection issue.
The Kecks do not claim the trial judge abused his discretion in refusing to grant the 60- 260(b) motion. Their argument is that the trial judge had jurisdiction to rule on the 60-260(b) motion and that he should have considered the motion on its merits.
The Kecks list the issues on appeal as follows:
“1. Do appellants have a constitutional right to equal protection which is violated by appellee’s judgment under the Kansas statutory scheme?
“2. Does K.S.A. 60-260(b)(6) apply to the facts of this case, allowing for post-judgment relief from all or a portion of appellee’s judgment where appellants filed their motion more than one year after the original judgment but less than six months after a ruling increasing their monthly obligation to the appellee?
“3. Does the fact that appellants are raising the grandchild conceived and bom to their minor daughter while she was a ward of the State without receiving SRS support constitute a ‘reason justifying relief ’ under K.S.A. 60-260(b)(6) which is not included in the statute’s preceding enumeration of five reasons which can form bases for post-judgment relief?”
K.S.A. 60-260(b) states in pertinent part:
“Mistakes; inadvertence; excusable neglect; newly discovered evidence; fraud, etc. On motion and upon such terms as are just, the court may relieve a party or said party’s legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under K.S.A. 60-259 (b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one year after tire judgment, order, or proceeding was entered or taken.”
In this case, the Kecks rely on subsection (6) for providing the trial court with jurisdiction.
In Wilson v. Wilson, 16 Kan. App. 2d 651, 827 P.2d 788, rev. denied 250 Kan. 808 (1992), the court analyzed whether the trial court had erred when it granted a K.S.A. 60- 260(b)(6) motion and modified a divorce decree. The Wilson court stated that “[t]he general rule applied by both state and federal courts is that the first five grounds of the statute, which are specific, and the sixth, which is the general catch-all, are mutually exclusive.” 16 Kan. App. 2d at 656. Federal Rule 60(b) is identical to K.S.A. 60-260(b), and the federal courts are in accord that 60-260(b)(6) cannot be used to circumvent the time limitations applicable to the first three grounds of 60-260(b). “ '[I]t is settled that an appellant cannot circumvent the one year limitation by invoking the residual clause (6) of Rule 60(b).’ ” Wilson, 16 Kan. App. 2d at 657 (quoting Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 702 [2d Cir.], cert. denied 409 U.S. 883, reh. denied 409 U.S. 1029 [1972]). “ 'Rule 60(b)(6) is not available if the asserted grounds for relief are within the coverage of another provision of Rule 60(b).’ ” Wilson, 16 Kan. App. 2d at 657 (quoting Wallace v. McManus, 776 F.2d 915, 916 [10th Cir. 1985]).
In the case at hand, the real reason for the motion to set aside falls under the reason provided in K.S.A. 60-260(b)(1) of “mistake, inadvertence, surprise, or excusable neglect.” The Kecks’ original attorney did not raise an equal protection issue or a claim of negligence against SRS for allowing Tracy to run away and become pregnant while under SRS’s care and custody. This falls squarely within the provisions of K.S.A. 60-260(b)(1). The Kecks’ K.S.A. 60-260(b) motion was not filed until April 12, 1995, which is 23 months after the journal entry. Thus, the trial judge did not err in ruling that the motion was not filed within the 1-year time requirement of K.S.A. 60-260(b)(1).
The Kecks also assert that their motion to set aside should be considered timely filed because their time to file a K.S.A. 60-260(b) motion started over in January 1995 when the court granted SRS the increase in monthly child support payments. The Kecks contend that each passing month created a new judgment, giving the initial amount of the judgment a prospective application from which relief could be granted when the interest of justice demanded it.
The Kecks did not assert this theory that their K.S.A. 60-260(b) motion should be decided based on the January 1995 order in their brief in support of their motion and at the hearing on the motion. The Kecks’ attorney simply stated that he was relying on K.S.A. 260(b)(6), which he deemed the “catch-all [subsection], any other reason justifying relief from the operation of a judgment.”
The right to an appeal is a statutory right, not a right vested in the United States or Kansas Constitutions. “An appellate court has jurisdiction to entertain an appeal only if the appeal is taken within the time limitations and in the manner provided by the applicable statutes.” Resolution Trust Corp. v. Bopp, 251 Kan. 539, 541, 836 P.2d 1142 (1992) (citing Little Balkans Foundation, Inc. v. Kansas Racing Comm’n, 247 Kan. 180, 188, 795 P.2d 368 [1990]). Further, “[a]n appellate court has the duty of questioning jurisdiction on its own motion. If the record discloses a lack of jurisdiction, the appeal must be dismissed.” Resolution Trust Corp., 251 Kan. 539, Syl. ¶ 2. Consequently, this court, like the trial court, does not have jurisdiction to consider Issues 2 and 3 of the Kecks’ appeal. Having so held, the Kecks’ interesting and scholarly equal protection argument is moot.
The Kecks also argue that because the State has not been required to pay child care expenses for their grandchild, conceived and bom while their daughter was under the alleged care of SRS, they should be relieved from the judgment for their daughter’s support and expenses. They argue that the State’s lack of care permitted their daughter to ran away and become pregnant, and this factor balances the equities of concern for public expenditure and parents’ responsibility for their own child. The Kecks maintain that if their grandchild had been placed in foster care, the agency would have paid more for child care than the $525 a month presently being taken from Mr. Keck’s earnings.
While it is certainly honorable that the Kecks have assumed responsibility for their grandchild instead of burdening the State’s resources, there is no statutory authority or case law which provides that caring for their grandchild without State reimbursement negates their obligation to reimburse the State for services expended on behalf of their own child. The Kecks have never applied for or requested State assistance in supporting their grandchild. This argument is both moot and without merit.
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The opinion of the court was delivered by
Abbott, J.:
The State appeals from the suppression of evidence and a pretrial dismissal of a DUI charge against defendant William B. Neuman, a/k/a Brett Neuman.
Ellsworth City Police Officer Larry Beagley was on duty and received a report from his 17-year-old son, who was working at a Pizza Hut in Ellsworth, that defendant had picked up an order, appeared intoxicated, and was driving a motor vehicle. Beagley was acquainted with defendant and was familiar -with the vehicle which defendant drove. Beagley was stopped at a stop sign when he observed defendant’s vehicle coming south on 156 Highway. Beagley testified that when defendant was about 50 to 75 yards north of the intersection, defendant “yanked or swerved to the right side of the highway.”
Beagley turned onto 156 Highway and began to follow defendant’s vehicle after it passed the intersection. He then decided to stop defendant’s vehicle by activating his flashing lights. Defendant stopped his vehicle after Beagley had been following him for about one-half mile. While following defendant with his flashing lights on, Beagley observed defendant’s vehicle cross the centerline and veer onto the white line on th$ right side of the road. He also observed defendant throw a beer can out of his vehicle. Beagley testified that these actions were indications of a “possible drunk driver.”
Field sobriety tests were administered and defendant failed the tests. He also failed a breath test.
Defendant filed a motion to suppress all evidence collected pursuant to the stop of his vehicle. Defendant contended that Beagley did not have reasonable or probable cause to arrest him. The trial court found Beagley did not have a reasonable, articulable suspicion “that criminal activity was afoot” when he made his decision to stop defendant’s vehicle and activated the police car’s emergency lights. Consequently, the trial court suppressed all the evidence gathered after Beagley activated his emergency lights. We hold this to be reversible error.
We have previously examined the question of whether a stop occurs when a law enforcement officer activates his or her flashing lights or whether it occurs when the officer actually stops the vehicle. In State v. Guy, 242 Kan. 840, 843, 752 P.2d 119 (1988), we held that the critical time when a law enforcement officer must have knowledge of facts, giving rise to a reasonable and articulable suspicion that defendant had committed, was committing, or was about to commit a crime, is at the time of the actual stop.
In State v. Weaver, 259 Kan. 844, 847, 915 P.2d 746 (1996), the facts are very similar to those in the case before us. In Weaver, the law enforcement officer did not have a reasonable suspicion of criminal activity to stop defendant’s vehicle at the time that he activated the police car’s emergency lights. When the officer activated the lights, defendant’s vehicle sped up and a chase ensued. Defendant eventually stopped in a wheat field, after turning into a private driveway and driving through a yard and garden. In Weaver, we analyzed whether the stop occurred when the officer activated his flashing lights or when the defendant actually stopped his car. We held that the stop occurred when defendant submitted to the officer’s authority and actually stopped his car. Thus, we allowed the officer’s observations of defendant’s conduct made before defendant submitted to the officer’s authority to be considered in determining whether the officer had reasonable suspicion to stop defendant.
The United States Supreme Court case of California v. Hodari D., 499 U.S. 621, 113 L. Ed. 2d 690, 111 S. Ct. 1547 (1991), supports the precept that the critical time for determining whether reasonable suspicion for a stop exists is at the time of the actual stop. In Hodari D., the State conceded it did not have a reasonable suspicion to pursue defendant (on foot) at the time the officer observed defendant discard rock cocaine. Defendant contended that the cocaine evidence should be suppressed as the fruit of an illegal seizure because he was seized when he saw the officer chasing him. The Court held that defendant was not seized until he submitted to the assertion of authority or the officer had made physical contact with the accused while attempting to seize him. The Hodari D. Court cited as “quite relevant” Brower v. Inyo County, 489 U.S. 593, 596, 103 L. Ed. 2d 628, 109 S. Ct. 1378 (1989). In Brower, police cars with flashing lights had chased decedent’s car for 20 miles. This was clearly an adequate “show of authority,” but the driver did not stop until his fatal crash with police blockade. Thus, the possibility that a seizure could have occurred during the course of the chase was not even considered a viable possibility in Brower because the “show of authority” did not produce the stop.
Here, at the time defendant stopped his vehicle and submitted to lawful authority, the officer had observed defendant “yank or swerve” his vehicle to the right, cross the center line, stray onto the white line on the right-hand side of the road, and throw a can which the officer believed to be a beer can out of the window of his vehicle. Thus, the trial court erred in not considering this evidence in determining whether the officer had a reasonable and articulable suspicion that defendant was committing the crime of driving under the influence at the time of the actual stop.
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The opinion of the court was delivered by
Six, J.:
This first impression consumer loan case, before us on summary judgment, focuses on K.S.A. 16a-2-401(9)(b) of the Kansas Uniform Consumer Credit Code (UCCC). K.S.A. 16a-2-401(9)(b) is not contained in the Model Uniform Act. It authorizes, in addition to the permitted finance charge, a nonrefundable origination fee legislatively named a “nonrefundable prepaid finance charge.”
The plaintiff, Henry Gonzales, refinanced loans with defendant Associates Financial Service Company of Kansas, Inc. (Associates) three times within a 15-month period. With the second and third refinancings, money was given directly to him. Gonzales claims the origination fees charged on the second and third refinancings were fraudulent and unconscionable. The fees were based upon the entire amount financed rather than on the smaller amount of new money given to him. The district court granted summary judgment for Associates, and Gonzales appeals.
Jurisdiction is under K.S.A. 20-3018(c), a transfer from the Court of Appeals on our motion.
The primary issue, which influences the resolution of other issues, is whether K.S.A. 16a-2-401(9)(b) allows Associates, under the facts here, to charge a nonrefundable origination fee (nonrefundable prepaid finance charge) based upon the entire amount financed, or only upon the amount of new money advanced.
Secondary issues are:
(a) Did Associates engage in unconscionable acts, violating K.S.A. 16a-5-108?.
(b) Does Gonzales have a viable fraud claim?
(c) Was Associates’ conduct deceptive under the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq.?
Finding no error, we affirm.
K.S.A. 16a-2-401(9)(b) says:
“In addition to the applicable finance charge permitted ... for consumer loans not secured by an interest in land, a creditor may contract for and receive, in connection with any such . . . loan, a nonrefundable origination fee in an amount not to exceed the lesser of 2% of the amount financed or $100, which fee shall be a nonrefundable, prepaid finance charge.” (Emphasis added.)
FACTS
From 1989 to 1994, Gonzales lived in Wichita while serving in the Air Force. He enrolled in Garden City Junior College before joining the military. (He completed 43 hours of college credit in the Air Force, primarily in non-commissioned officer school.) His duties as an aircraft fuel system mechanic required him to read and follow technical orders, job guides, and instruction manuals. He also trained in logistics and supply, and served as a supply sergeant in charge of air base tool supply.
Gonzales was a 13-year customer of Associates or an out-of-state affiliate. He. obtained credit from many creditors other than Associates (including ITT, Beneficial Finance, American General Finance, Commercial Credit Corporation, Luke Federal Credit Union, Golden Plains Credit Union, Discover Card, Chase Visa, Mercantile Bank Mastercard, Sears, Montgomery Ward, J.C. Penney, Spiegel, Bank One, and Union National Bank).
Gonzales first borrowed money from Associates in Wichita in September 1992. The “amount financed” was $5,655.84, using $3,074.87 to pay off a car loan from Golden Plains Credit Union and $2,508.97 to pay off the outstanding balance he owed Associates Financial Services of Arizona. No money was given direcdy to him. He does not base his claim against Associates on the September 1992 loan. He asserts, however, that if he had been charged the K.S.A. 16a-2-401(9)(b) incremental origination fee rate of 2%, the result would have been a fee of $61.50 (2% of $3,074.87) instead of $100. Gonzales admits the $100 charged was disclosed as a prepaid finance charge but says he was not told that an origination fee had been charged. He looked at the September 1992 disclosure statement and went through it with an Associates’ employee. He saw the disclosure of the $100 prepaid finance charge before he signed. He did not ask any questions.
Gonzales entered into the September 1992 loan agreement in order to lower his total monthly payments, thus freeing up additional spending money. His new monthly payment was $80 or $90 per month less than the combined total of his payments on the Golden Plains and Arizona loans. He testified he would not have taken out the new loan if it had not reduced his monthly payments.
Gonzales says that after September 1992, he was contacted by Associates “on a continuing basis.” He received cards through the mail and telephone calls. In the mail advertising, Associates would “say to the effect to come in and see them, that they’ve got money, Christmas is coming up, you know, would you like to borrow more money. You know, things like that.” He testified that in telephone calls, Associates employees would say, “I had made my payments on a pretty regular basis, and that if I was interested that, you know, they could loan me some more money.”
Associates employees endeavor to talk to customers in person or by telephone at least quarterly if time allows. During such contacts, Associates will check on customer satisfaction and ask if the customers have any questions. Associates will also ask creditworthy customers if they are interested in obtaining new loans. The customer is invited to come in and borrow more money. This practice is common with Associates and in the industry. If a loan is made, local Associates’ managers are instructed to charge the maximum K.S.A. 16a-2-401(9)(b) origination fee. The office manager is eligible for. quarterly bonuses if business performance improves.
During 1993, Gonzales spoke with an Associates employee in person or by telephone on or about March 12, April 20, May 11, and August 3. Associates’ “Account Follow-Up History” reveals that on April 20, 1993, “TR” called Henry Gonzales at 14:53 to solicit him to apply for an advance of further funds. An answering machine apparently responded, and TR left a message to “call ASAP.” Less than an hour later Gonzales apparently called back, and Associates’ log suggests that he was solicited to apply for a further advance of money. According to the log Gonzales replied that he did not wish to do so at that time but “might need some cash down the road.” Gonzales showed no current interest in borrowing additional money on each occasion. He testified, “I knew for myself that I was already overextended and I didn’t really want to get any more money from them.”
In May 1993, an Associates employee noted for the file that Gonzales said he did not have any cash reserve and wanted to save his credit with Associates “so if something comes up needs cash could get it here.” Associates’ records 'of an August 1993 conversation show that, in response to an inquiry about his credit needs, Gonzales replied, “maybe later for auto repair[s].”
On August 2, 1993, Gonzales purchased a 1992 Chevy van for $18,840.81. The purchase was financed under an installment credit agreement, assigned by the dealer to a bank, with monthly payments to the bank of $329.39. Gonzales became concerned about the size of his monthly payments. In addition, he did not have enough money to pay for the license tag and property taxes on the new van. He called Associates. The office suggested he borrow additional money. He decided to take out a new loan.
On August 20, 1993, Gonzales executed a Disclosure Statement, Note, and Security Agreement (August Loan Agreement) which provided for a loan with an “amount financed” of $5,134.83. Of the amount financed, $500 was advanced in cash to Gonzales, $60 was applied to a personal property insurance premium, and $4,574.83 was applied to repay his existing loan balance. Before August 20, 1993, Gonzales was required to make loan payments to Associates of $215.29 per month. The August Loan Agreement reduced his monthly payments to $197.47. He understood that by refinancing, his monthly payments would be reduced. He did not ask Associates about the possibility of another loan in addition to the loan he had, nor was a separate loan proposed. Gonzales also understood that if he had to take out a separate loan, his payments would probably have gone up. The September 1992 note had been in effect for almost 11 months at this time. Rather than adding to that loan, Associates paid it off and wrote a new promissory note.
Associates added a $100 origination fee to the finance charge. (Gonzales claims the origination fee should have been $10, 2% of the $500.) When the note was rewritten the interest portion of the September 1992 finance charge was refunded pro rata; however, the origination fee was not refunded. Gonzales claims he was not informed that another origination fee had been charged, nor was he aware of the effect the fee had on the cost of his loan.
Gonzales made the September payment for the August loan on time but did not make the October payment. He called Associates saying his son had been in the hospital and the October payment would be made on November 4, 1993. It was. He made the November payment later in the month.
The next contact between the parties was initiated by Gonzales on December 13, 1993, when he telephoned Associates to say his son was back in the hospital and he wanted to defer a payment.
In response to his request for a deferral, Associates suggested that he could refinance the balance of his current loan and borrow an additional $400. Gonzales’ credit rating had deteriorated, but he was still able to qualify for the new loan. He says Associates convinced him to borrow more money.
Gonzales executed a Disclosure Statement, Note and Security Agreement (the “December Loan Agreement”) providing for an “amount financed” of $5,458.13. At closing, he received $410 in cash, $4,970.13 paid off the balance of his previous loan, and $78 paid an insurance premium on property that was security for the loan. ■
The December Loan Agreement required no payment until February 1, 1994, relieving Gonzales of payments for December 1993 and January 1994. The contract interest rate on the new loan was lowered to 22% compared with 22.5% under the August Loan Agreement. The amount of Gonzales’ regularly scheduled monthly payment was reduced from $197.47 to $187.97. Again, rather than adding to the existing loan, the August loan was paid off and a new note was written. Another $100 origination fee was added to the finance charge. (Gonzales claims the proper origination fee for this loan was $8.20, 2% of $410.) Once again the interest component of the August 1993 finance charge was refunded pro rata, but the origination fee was not. Gonzales says: (1) He was not informed of the origination fee and (2) he-had no perception of the effect the fee was having on his loan charges. He did not know that the “nonrefundable prepaid finance charge” was really a nonrefundable origination fee.
Before obtaining the August and December loans, Gonzales had comparison-shopped for credit terms and was aware that Associates charged higher rates' than banks, but he had decided that Associates was his best source of credit.
With respect to each of the three loans, Associates employees (a) took a new loan application from Gonzales, (b) verified his income and employment, (c) obtained and reviewed a credit report, (d) evaluated the loan application and credit information under Associates’ standards, (e) prepared a set of loan documents, including a Truth-in-Lending Act disclosure statement, and (f) met with Gonzales to explain the loan papers and sign and close the loan. These procedures do not differ in any material respect from the procedure followed by Associates in making a loan to a first-time customer.
Part of the consideration to Associates for entering into the August and December Loan Agreements was the K.S.A. 16a-2-401(9)(b) origination fee. Gonzales’ August and December Loan Agreements each disclosed that the amount financed was more than $5,000 and that there was a “prepaid finance charge” of $100 which was “not part of 'Amount Financed.’ ”
The August and December Loan Agreements included a statement which disclosed, among other things, the following: “PREPAYMENT: If you pay off early, you will not have to pay a penalty. There will be no rebate of the prepaid finance charge.”
The August and December Loan Agreements also make a disclosure using the term origination fee: “PREPAYMENT: I [Gonzales] can prepay my loan at any time with interest on such payment to the date of payment. If I prepay in full, no part of the origination fee will be refunded.”
Gonzales testified, concerning the closing of the August Loan Agreement, he had seen “all the figures on the sheet,” he did not know what the prepaid finance charge was, he “really didn’t think about it,” and he did not ask any questions.
Associates went over the disclosures with Gonzales at the closing of the December Loan Agreement. Concerning the loan origination fee or prepaid finance charge, his testimony was:
“Q. And did they mention the $100?
“A. They would mention that it was the finance charge. There again, I was assuming that finance charge was part of the interest.
“Q. And you’re referring to the prepaid finance charge of $100 that’s shown on the first page of Exhibit 10?
“A. Right.
“Q. Did you ask him any questions about that $100 charge on this occasion?
“A. No.”
Gonzales made no payments on the December Loan Agreement. Shortly after the first payment came due on February 1, 1994, he filed for bankruptcy.
Gonzales kept the 1992 Chevy van and reaffirmed the van purchase indebtedness to the bank. Associates moved for relief from the stay in order to repossess a 1987 Plymouth, the collateral on his loan. After applying the proceeds of the car’s sale, Associates was left with an unsecured balance of more than $4,000, which was discharged in bankruptcy.
The district court, in entering summary judgment for Associates, concluded that Gonzales had attempted to dispute few of the facts, and “the purported disputes were not shown to be material upon review of plaintiff’s own testimony and documents in the record.”
DISCUSSION
Our summary judgment standard has been frequently expressed. All facts must be taken in the light most favorable to the party who opposed summary judgment. Kerns v. G.A.C., Inc., 255 Kan. 264, 268, 875 P.2d 949 (1994). Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. K.S.A. 60-256(c). Our standard of review is de novo. Gamblian v. City of Parsons, 261 Kan. 541, 546, 931 P.2d 1238 (1997).
This is a statutory interpretation case. We agree with the district court’s conclusion that Gonzales’ factual assertions do not create any genuine issues of material fact. Statutory interpretation involves a question of law. Our standard of review is unlimited. In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997).
Gonzales' Origination Fee Contentions
Gonzales argues that the K.S.A. 16a-2-401(9)(b) term “origination” means the fee can only be charged for the expenses in setting up the original file and making the original loan. According to Gonzales, the fee should not apply at all to refinancing. Any other interpretation, he contends, allows for “outrageously high incremental charges for the additional money borrowed,” is inconsistent with the plain meaning of the language, “works an absurd result,” and is contrary to the purpose of the UCCC. According to Gonzales, deception is present because no one ever told him that origination fees were charged every time a loan was refinanced. Similarly, he reasons deception and unconscionability are present because of Associates’ (1) failure to disclose that the fee is added to loan principal and (2) continuous solicitations to refinance.
Gonzales asserts fraud because the loan documents refer to a prepaid finance charge without disclosing that the only such charge was the origination fee.
Ruling of the District Court
We summarize the district court’s conclusions: (1) The definition of “amount financed” is not ambiguous; it includes the entire amount of credit extended when a loan is refinanced or consolidated with another loan. (2) Calling a loan origination fee a prepaid finance charge is not deceptive. (3) Associates had no obligation to explain the terms of the loan in any more detail or in any different manner than it did. The Truth-in-Lending provisions of the federal Consumer Credit Protection Act and Regulation Z of the Federal Reserve Board, which implements that Act, prescribe the elements of a consumer credit transaction deemed material by law for disclosure purposes. When a lender gives accurate Truth-in-Lending disclosures, as Associates did in this case, the lender has no obligation to provide additional disclosures. (4) The relationship between Gonzales and Associates was debtor/creditor, not a fiduciary relationship. (5) Associates’ conduct was not unconscionable. Every loan requires clerical work and takes time, as did Gonzales’ loans. A $100 origination fee is not an excessive charge under the facts here. (6) It is not the court’s or a jury’s province to overrule the legislature’s determination. (7) The remedy for a consumer who contends that the charges permitted by the statute are too high lies with the legislature. (8) Gonzales discharged in bankruptcy the more than $4,000 he owed Associates, and in effect never paid the loan origination fees.
The K.S.A. I6a-2-401(9)(b) Origination Fee
Our function in reviewing a statute is easily stated. It is to construe the language so as to give effect to the intent of the legislature. There is no invariable rule for the determination of that in- tendon. The legislature has instructed us that “[w]ords and phrases shall be construed according to the context and the approved usage of the language.” K.S.A. 77-201 second. Technical words and words and phrases that have acquired a peculiar meaning in law are to be construed according to their peculiar and appropriate meanings. K.S.A. 77-201 second. Federal Truth-in-Lending Act (TILA), Regulation Z, 12 C.F.R. § 226 (1998) is incorporated in the UCCC by K.A.R. 75-6-26(c), K.S.A. 16a-3-206, and K.S.A. 16a-6-117. Here, the legislature is presumed to have expressed its intent through the language of the UCCC and K.S.A. 16a-2-401(9)(b). We must give effect to the intent of the legislature as expressed rather than determine what the law should or should not be. Brown v. U.S.D. No. 333, 261 Kan. 134, 142, 928 P.2d 57 (1996).
(1) Lenders are permitted to call origination fees “prepaid finance charges” in loan documents.
The focus of our analysis is on the legislature, both federal and state. The TILA (Regulation Z) applies to virtually all consumer loans. 12 C.F.R. § 226.1(c). Thus, state legislatures must consider the implications of Regulation Z when they tinker with their own consumer loan statutes. Why not simply call the origination fee here an origination fee? The answer can be found in a detailed analysis of Regulation Z. The discussion that follows will demonstrate that: (a) origination fees are considered prepaid finance charges under the TILA; (b) the legislature knew that to be true when it passed K.S.A. 16a-2-401(9)(b); and (c) the origination fees charged by Associates fit the definition of a “prepaid finance charge.”
(a) An origination fee is a prepaid finance charge under the TILA (Regulation Z).
The exact term “origination fee” is not found in Regulation Z. However, origination fees are considered a type of finance charge. Gonzales admits as much when he states, “For purposes of disclosure, loan companies are required to treat the Origination Fee as a finance charge.” A finance charge is defined as “the cost of consumer credit as a dollar amount.” 12 C.F.R. § 226.4(a). 12 C.F.R. § 226.4(a) explains that a finance charge “includes any charge payable directly or indirecdy by the consumer and imposed directly or indirectly by the creditor as an incident to or a condition of the extension of credit.” An origination fee meets the Regulation Z definition of a finance charge. An origination fee is a charge by the creditor and payable by the debtor. 12 C.F.R. § 226.4(a). An origination fee is an incident to or a condition of the extension of credit as well. Origination fees may be charged and paid directly or indirectly. Under 12 C.F.R. § 226.4(b)(3), an example of a finance charge includes loan fees and similar charges.
A “prepaid finance charge” necessarily includes the definition of “finance charge” above, but more specifically means “any finance charge paid separately in cash or by check before or at consummation of a transaction, or withheld from the proceeds of the credit at any time.” 12 C.F.R. § 226.2(a)(23). Thus, it follows that a loan fee/origination fee paid up front or withheld from the proceeds of the loan is in fact a prepaid finance charge under Regulation Z.
(b) The legislature knew that origination fees were considered “prepaid finance charges” under Regulation Z when enacting
K.S.A. 16a-2-401(9)(b).
The legislature named “origination fee” a “nonrefundable prepaid finance charge” in K.S.A. 16a-2-401(9)(b). The legislative history of K.S.A. 16a-2-401(9)(b) demonstrates why. The statute, which is not part of the Model Uniform Act, was adopted in 1988.
L. 1998, ch. 85 and 86. Since 1986, lenders have been permitted to charge origination fees on consumer loans secured by real estate. K.S.A. 16a-2-401(9)(a). Testimony before the 1988 legislature advocated the need for a way to offset the expenses of making small loans. The legislature apparently recognized lenders were reluctant to make small loans because the finance charges alone were insufficient to cover the loan processing costs. Testimony from the financial service industry suggested that without such changes, the small loan market would dry up in Kansas. K.S.A. 16a- 2-401(9)(b) was added to allow lenders to recoup their costs by charging a loan origination fee labeled a “nonrefundable prepaid finance charge.” (Minutes of the House Committee on Commercial and Financial Institutions, March 24, 1988.)
The label seems to be deliberate. Relevant discussion on the topic can be found in the Senate committee minutes of February 18, 1998, on Senate Bill 552. There; the Senate considered proposed technical or “clean up” amendments to various sections of the UCCC, including K.S.A. 16a-2-401. While it was Senate Bill 507 which ultimately allowed the origination fee Gonzales complains of, both bills (on the same day) made changes to 16a-2-401 during the same legislative session. Senate Bill 552 labeled the 3% nonrefundable origination fee on consumer loans secured by real estate, permitted since 1986, a “nonrefundable prepaid finance charge.” The committee minutes of February 18, 1998, reveal that there was thoughtful discussion concerning origination fees. The committee considered moving the sections on origination fees to 16a-2-501, which enumerates “additional charges” such as insurance, official fees, and taxes. This suggestion was quickly disposed of due to Regulation Z.
As previously explained, under the TILA (Regulation Z) origination fees are considered finance charges. See 12 C.F.R. § 226.4(b)(3). 12 C.F.R. § 226.18(c)(iv) of Regulation Z mandates disclosure of “the prepaid finance charge.” The committee was concerned that if the statute was amended to include origination fees as “additional charges” (in 16a-2-501) but lenders were required to disclose the origination fee as “the prepaid finance charge” under Regulation Z, the amendment might lead to confusion. Specifically, the minutes read: “If it is put in state law as not a finance charge, but lenders have to disclose it as a finance charge under the truth in lending, it becomes confusing.” See Minutes of Senate Committee on Financial Institutions and Insurance, February 18, 1988, p. 2. The committee ultimately decided to keep the origination fees (for loans secured by real estate) in 16a-2-401.as a “nonrefundable prepaid finance charge.” During the same committee hearings, when considering Senate Bill 507 allowing origination fees for loans not secured by real estate, the committee logically added this new origination fee to section 16a-2-401 as subsection (9)(b) and once again labeled the origination fee a “nonrefundable prepaid finance charge.” The 12 C.F.R. § 226.18(c)(iv) Regulation Z disclosure requirement suggests that the legislature purposely used the term “prepaid finance charge.”
There is an absence of any legislative discussion tending to support Gonzales’ contention that the fee was intended to apply only to the original set up of a consumer’s loan file with the lender. Gonzales advances no support for his reading of K.S.A. 16a-2-401(9)(b) other than a general legislative intent to aid and protect consumers. Gonzales’ contention that the statute does not permit a lender to call an origination fee a prepaid finance charge lacks merit.
Under the statute, the origination fee is an amount “not to exceed the lesser of 2% of the amount financed or $100.” K.S.A. 16a-2-401(9)(b). The amount financed in the August and December Loan Agreements exceeded $5,000. Both loans say that Gonzales is being charged $100 in “prepaid finance charge[s].” Similarly, the agreements disclose the fact that prepaid finance charges will not be rebated in the event of prepayment. See 12 C.F.R. § 226.18(k)(2) (1988). Gonzales did not pay the origination fee up front. The origination fee charged here was withheld from the proceeds of Gonzales’ loan.
(c) The origination fee was withheld from the proceeds of the loans to Gonzales.
We acknowledge that it is difficult to determine how the origination fee is paid from the face of the loan documents. However, we do not attribute the difficulty to an attempt to deceive on the part of Associates. The difficulty arises because of state legislation and the rigid disclosure requirements of Regulation Z.
Gonzales’ loan documents contain certain disclosures mandated by Regulation Z. The documents also contain certain definitions of the terms on the documents; also mandated by Regulation Z.
For the purposes of our discussion, the two most important disclosures a creditor must make under Regulation Z are (i) the amount financed and (ii) the itemization of the amount financed. See 12 C.F.R. § 226.18(b) and (c).
(i) Amount Financed:
The amount financed must be disclosed “using that term, and a brief description such as the amount of credit provided to you or on your behalf.” 12 C.F.R. § 226.18(b). The amount financed is calculated by:
“(1) Determining the principal loan amount . . . ;
“(2) Adding any other amounts that are financed by the creditor and are not part of the finance charge; and
“(3) Subtracting any prepaid finance charge.” (Emphasis added.) 12 C.F.R. § 226.18(b)(1)-(3).
The “amount financed” is disclosed on Gonzales’ loan documents. The “amount financed” is also defined as “the amount of credit provided to you or on your behalf.” 12 C.F.R. § 226.18(b). This definition was on Gonzales’ loan documents, as Regulation Z requires. The amount financed does not include the prepaid finance charge, also as mandated by Regulation Z.
(ii) Itemization of Amount Financed
Creditors must include a separate written itemization of the amount financed. 12 C.F.R. § 226.18(c). This statement includes four things: (1) the amount of any proceeds distributed direcdy to the consumer; (2) the amount credited to the consumer’s account with the creditor; (3) any amounts paid to other persons by the creditor on the consumer’s behalf; and (4) the prepaid finance charge. The prepaid finance charge is not a part of the amount financed. The fact that the prepaid finance charge is included in the “itemization of amount financed” is, thus, counter-intuitive, but inclusion is what 12 C.F.R. § 226.18(c) requires.
With the Regulation Z requirements in mind, we now turn to Gonzales’ loan documents. Our question is how the $100 origination fee was paid here. The formula for calculating the amount financed provides part of the answer. A creditor must take the principal loan balance and subtract, among other things, the origination fee to arrive at the “amount financed.” The amount financed on Gonzales’ December Loan Agreement is $5,458 (rounded). Thus, Associates had to take the principal amount of the loan and subtract the $100 fee to arrive at $5,458. Unfortunately, this calculation was not done on the loan documents themselves. Therefore, no principal amount of $5,558 appears on the December Loan Agreement. However, $5,558 is noted on the Au gust Loan Agreement where Associates employees marked the old August note "Made Again.” There, Associates recorded the loan number of the December Loan Agreement, the date, and the amount of the new loan: $5,558.
Gonzales’ December loan was for $5,558, not $5,458. Associates subtracted the origination fee from the principal loan amount. In doing so, Associates withheld the origination fee from the proceeds of the loan.
Should Associates be faulted for not showing this principal amount on the loan documents? We think not. We believe the Regulation Z disclosure requirements for the forms could be improved; however, federal form improvement is not a state judicial function. The model loan form endorsed by the TILA does not contain such a disclosure. Associates’ loan forms track with the model form, and each disclosure made on the model form was made by Associates. See 12 C.F.R. pt. 226, app. H.
We next consider payment of the origination fee. The origination fee is part of the principal, but not part of the amount financed for interest purposes. In other words, no interest is charged on the origination fee of the loan. The origination fee is a part of the cost of the credit to the consumer. As such, it is reflected in the annual percentage rate or APR. The yearly interest rate on Gonzales’ December loan was 22.50%; however the APR was 23.91%. This 1.41% difference is where the $100 origination fee is reflected. Gonzales acknowledged this, saying: “The stated interest rate on the loan was 22.5% and the effective annual percentage rate with the addition of the origination fee came to 23.92%.” This reflection of the origination fee in the APR as a finance charge is also mandated by Regulation Z. 12 C.F.R. § 226.22(a)(1). Thus, the origination fee is properly reflected in the APR as a 1.41% increase.
Admittedly, when a consumer refinances, the unpaid portion of the origination fee is rolled over into the new loan. Only then does a consumer pay interest on an origination fee.
The loan documents told Gonzales he was being charged a prepaid finance charge of $100. The documents also told him that the prepaid finance charge would not be rebated.
(2) Lenders are permitted to base the amount of the origination fee on the entire amount financed.
According to Gonzales’ definition, (1) no credit is extended in a refinancing, and (2) if a loan is refinanced with the same lender without new money advanced, the “amount financed” is redefined as zero. We disagree. Gonzales’ interpretation appears to contradict both the UCCC and TILA, Regulation Z. See K.S.A. 16a-l-301(4); 12 C.F.R. § 226.18(b).
K.S.A. 16a-l-301(4)(b) and (c) define “amount financed” as follows:
“Amount financed” means the total of the following items:
“(b) in the case of a loan, the net amount paid to, receivable by, or paid or payable for the account of the debtor, plus the amount of any discount excluded from the finance charge (paragraph (b) of subsection (18) of section 16a-1-301); and
“(c) in the case of a sale or loan, to the extent that payment is deferred and the amount is not otherwise included and is authorized and disclosed to the customer:
(i) Amounts actually paid or to be paid by the creditor for registration, certificate of title, or license fees, and
(ii) permitted additional charges (section 16a-2-501)."
We conclude Associates acted within the letter of K.S.A. 16a-2-401(9)(b) in charging a $100 origination fee for Gonzales’ August and December loans because the amount financed in each case exceeded $5,000.
Our conclusion is supported by the language of K.S.A. 16a-2-504, which specifically contemplates refinancing of consumer loans. K.S.A. 16a-2-504, adopted from the Model Code in 1973, authorizes refinancing of the unpaid balance by agreement with the consumer. The statute provides that “the amount financed resulting from the refinancing shall be comprised of the total of the unpaid balance and the accrued charges on the date of the refinancing.” The Kansas Comment to 16a-2-504 says, in part: “The amount financed for the new transaction is equal to the unpaid balance of the old transaction plus accrued charges at the date of refinancing.” (Emphasis added.)
Any unaccrued interest in a precomputed transaction must be credited to the consumer before calculating the amount financed in a refinancing. Regulation Z, 12 C.F.R. § 226.20(a) provides that “[a] refinancing is a new transaction requiring new disclosures to the consumer.” We will not rewrite K.S.A. 16a-2-401(9)(b) to say that (1) the statutory origination fee may be charged on only part of the amount financed and (2) “amount financed” means the amount of credit extended excluding credit extended to refinance previously incurred debt with the same lender. K.S.A. 16a-2-401(9)(b) permits the creditor to receive an origination fee with “any such loan,” which includes loans that are in whole or in part refinancings of existing loan balances.
We note in reviewing the record, correspondence in 1994 between William Catón, Kansas Consumer Credit Commissioner, and Keith Jones, President of Kansas Association of Financial Services (KAFS) concerning origination fee/prepaid finance charges on refinanced consumer loans. It was attached without comment to Gonzales’ motion in opposition to summary judgment. In the correspondence the Commissioner opined that the industry’s practice of charging prepaid finance charges on the entire principal of a refinanced loan “within a short time period of the original loan is unconscionable.” He suggested a policy that would charge a prepaid finance charge only on the new money portion of the refinanced loan within a specific time period. He did not wish to address the issue statutorily, but preferred the industry to stop the practice and police itself voluntarily. K.S.A. 16a-6-lll authorizes the Commissioner to file civil actions to restrain a creditor from enforcing unconscionable terms. The Commissioner is given broad investigative powers over the consumer loan industry. See K.S.A. 16a-2-305 (examination and investigation) and K.S.A. 16a-6-104 (powers of administrator). The KAFS responded, saying that as an informal understanding, effective January 2, 1995, its members would charge the K.S.A. 16a-2-401(9)(a) and (b) fees on new money only on consumer loans refinanced by the same lender within the first 6 months of the term of the loan. After 6 months no voluntary K.S.A. 16a-2-401(9)(b) origination fee restriction would be imposed.
Neither the district judge in his findings and conclusions nor the. parties in their briefs or at argument on appeal reference the cor respondence; thus, it plays no role in resolving this case. We do note, however, that only one of Gonzales’ loans would have violated this voluntary 6-month rule. Only 4 months had passed when Associates made their last (December) loan to Gonzales. They charged him a $100 origination fee. Gonzales never made a payment on the December loan.
The UCCC has continued to receive legislative oversight. The 1997 Kansas Comment to K.S.A. 16a-l-101 says, in part: “The U3C has been amended several times since its enactment in 1973; indeed, amendment has become an almost annual process.” (See the Revisor’s Note for Chapter 16a for the origin of the Kansas Comments.) The UCCC may be inadequate for failing to require explicit disclosure of either the disadvantages or advantages of refinancing versus taking out a new loan. If so, the remedy lies with the legislature.
Associates’ Conduct Under the UCCC-Unconscionability
As an equitable remedy, whether a contract is unconscionable has traditionally been a question of law for the court. This tradition endorsed by the Model Act has been changed in K.S.A. 16a-5-108, which provides that the trier of fact determines whether a particular bargaining context or contract clause is unconscionable. Enforcement, however, remains with the court.
K.S.A. 16a-5-108(3) provides that “a charge or practice expressly permitted by this act is not unconscionable.” Associates argues the origination fees it charged are authorized by the UCCC; therefore, under K.S.A. 16a-5-108(3), its actions cannot be unconscionable. Gonzales responds that the circumstances here show a churning of loans, excessive origination fees, and unconscionable conduct. Gonzales relies upon K.S.A. 16a-5-108, Comment 5, which provides:
“Subsection (3) prohibits a finding that a charge or practice expressly permitted by the U3C is in itself unconscionable. However, even though a practice or charge is authorized by the U3C, the totality of a particular creditor’s conduct may show that the practice or charge is part of unconscionable conduct.”
K.S.A. 16a-5-108 itself suggests Gonzales’ claim for damages based on unconscionability is miscast. Unconscionability under the UCCC is an affirmative defense to the enforcement of a credit agreement. K.S.A. 16a-5-108 does not create an independent claim for damages. Consumer remedies, i.e., affirmative claims for damages under the UCCC are set out in K.S.A. 16a-5-201. Gonzales relies on Wille v. Southwestern Bell Tel. Co., 219 Kan. 755, 549 P.2d 903 (1976) (an advertiser who had been left out of the yellow pages sought to avoid enforcement of contractual limitation on remedies). In Wille, which is not a UCCC case, the contract in issue limited Southwestern Bell’s liability to the cost of the advertisement. Gonzales also cites Topeka Datsun Motor Co. v. Stratton, 12 Kan. App. 2d 95, 107-08, 736 P.2d 82, rev. denied 241 Kan. 840 (1987) (Stratton alleged unconscionability under K.S.A. 16a-5-108 as a defense to repossession of her Datsun pickup by plaintiff dealer). Gonzales’ authorities are examples of asserting unconscionability unsuccessfully to avoid enforcement of a contract in whole or in part.
Neither party has directed us to a statute similar to K.S.A. 16a-2-401(9)(b) or to case law addressing origination fee/nonrefundable prepaid finance charge unconscionability. Gonzales has not cited any case in which a practice authorized by the UCCC has been held to be unconscionable conduct under the UCCC.
Comment 5 to K.S.A. 16a-5-108 stands as a caveat to lenders. Where enforcement of a loan agreement is at issue, we do not foreclose the possibility that in a future case, conduct which facially complies with K.S.A. 16a-2-401(9)(b) may not find a “safe harbor” in the language of 16a-5-108(3). In such cases, the trial court may consider “the creditor’s total conduct, including that part of the creditor’s conduct which is in accordance with the provisions of the U3C.” K.S.A. 16a-5-108, Comment 5. We conclude Comment 5 is not implicated here.
The Fraud Claim
A fraud claim presents no special test of the evidence different from the usual standards on summary judgment. Dugan v. First Nat’l Bank in Wichita, 227 Kan. 201, 207, 606 P.2d 1009 (1980).
Gonzales’ fraud claim is not based on any allegedly false statement. However, he asserts Associates should have provided him with additional information concerning the financial impact of the transactions. He keys his fraud claim to Associates’ plan of operation. Gonzales contends Associates’ acts were fraudulent because: (1) material facts were actively concealed, (2) material facts were omitted, and (3) ambiguous statements or half-truths were made. He claims Associates’ “campaign to induce refinancing” was fraudulent. “Fraud may arise by the concealment of facts which legally or equitably should be revealed, as well as by affirmative misrepresentation. [Citation omitted.] The deliberate suppression of a fact that a party has a duty to disclose is fraud.” Tetuan v. A.H. Robins Co., 241 Kan. 441, 465, 738 P.2d 1210 (1987). Gonzales concedes Associates made all disclosures required by law but advances fraud by silence, claiming Associates had a duty to make additional disclosures.
As Gonzales sets out the elements of this claim, two problems arise. First, Associates must have knowledge of material facts which Gonzales did not have and could not have discovered through diligence. Gonzales admits that he saw the prepaid finance charge and did not ask any questions. He does not claim that he exercised diligence to understand the nature of the charge. He has also failed to claim that he could not have discovered the information. Second, Associates must have been under a duty to speak. Gonzales fails to identify the basis for the alleged duty owed to him by Associates. The duty did not arise out of the relationship of the parties as creditor-debtor. First Bank of WaKeeney v. Moden, 235 Kan. 260, 262, 681 P.2d 11 (1984) (“Ordinarily, the relationship between a bank and its customer is that of creditor-debtor and not that of a fiduciary.”).
Gonzales, in essence, claims that because Associates undertook to make disclosures, it had the duty to further disclose the effect of refinancing on his overall financial picture. In support of this proposition, he relies on Sparks v. Guaranty State Bank, 182 Kan. 165, 168, 318 P.2d 1062 (1957), and Gilmore, 226 Kan. at 667.
Although Gonzales cites language from Sparks and Gilmore that appears helpful, an examination of the facts in each case reveals the contrary. Sparks involved a bank officer making affirmative misrepresentations to the holder of a returned check concerning the financial picture of the maker of the check. The bank officer assured the holder of the check that the maker was not financially unstable, which was false. These misrepresentations caused Sparks to forbear the remedies of self-help and legal action against the maker of the check. The bank, in turn, benefitted from Sparks delay in asserting his rights. Gilmore arose from the sale of diseased cattle to an unknowing purchaser. The purchaser obtained financing through the bank. When the purchaser went bankrupt after discovering the cattle were diseased, the bank sued the sellers for fraud and misrepresentation. Summary judgment for the defendant-sellers was reversed with directions to reinstate the action. The sellers concealed or otherwise omitted necessary facts (that the cattle were diseased) and thus could be held liable. 226 Kan. at 672.
Sparks and Gilmore are neither factually nor legally similar to Gonzales’ case. They do not support his contention that Associates had a duty to make further disclosures.
Gonzales presented no evidence tending to prove the existence of any practice or custom in the consumer loan industry to make disclosures beyond those required by federal and state law. Further, he has identified no objective circumstances from which a duty to make disclosures besides those required by law would arise. There is no evidence that Associates thought Gonzales was incapable of understanding the transactions. He had obtained credit from at least 15 other creditors in the past. Associates’ representatives explained the documents and afforded him the opportunity to ask questions, and none of his questions were unanswered. Gonzales testified he comparison-shopped for credit terms before deciding to refinance his loans with Associates. He has not shown that Associates either actively concealed information or had information he could not have discovered.
A recent Alabama UCCC case with similar facts is of interest. Williams v. Norwest Financial Alabama, Inc., 723 So. 2d 97 (Ala. Civ. App. 1998). Williams and her mother, Brown, sued Norwest alleging, among other claims, fraudulent misrepresentation and suppression arising from loan transactions.
The plaintiff borrower (Brown) claimed that:
“Norwest fraudulently suppressed tire fact that financing alternatives existed that were less expensive than refinancing. Brown contends that Norwest practices ‘flipping,’ a practice whereby customers are encouraged to refinance existing loans rather than make new and separate loans. Brown argues that the loan offered by Norwest are primarily closed-end transactions in which the interest and finance charges are determined at the time the loan originates. She states that these charges are applied early in the term of the loan and that as the term of the loan progresses the charges decrease. She contends that Norwest induces its customers to refinance the existing loans early in their terms so that the customers are continually paying the interest and finance charges at a higher rate.” 723 So. 2d at 104.
In affirming summary judgment for Norwest, the Alabama court said:
“Brown refinanced tire January 1990 loan with the April 1992 loan. She contends that the effect of taking the second loan without having paid the balance on the prior loan should have been disclosed to her, along with the fact that other financing alternatives existed. Suppression of a material fact that one has a duty to communicate constitutes fraud. [Citation omitted.] The duty to speak or to disclose certain facts may arise from a confidential relationship between the parties, the particular facts or circumstances of each case, or a request for information. [Citations omitted.] Brown testified that she never discussed with Norwest the effects of refinancing the January 1990 loan with the April 1992 loan and did not inquire as to any financing alternatives. Additionally, no evidence exists that would give rise to a confidential relationship between the parties. Brown had previously dealt with Norwest on a number of occasions; however, prior business contact alone does not give rise to a confidential relationship. [Citation omitted.] Nothing in the record indicates that the transaction complained of was anything other than an arm’s-length transaction between the parties. Accordingly, we conclude that die summary judgment was properly entered in favor of Norwest on this count. Our holding should not be construed as meaning that a fraudulent-suppression cause of action cannot arise out of the practice of ‘flipping.’ While nothing prohibits the refinancing or consolidation of an existing loan with a subsequent loan, the practice has the potential for less scrupulous lenders to prey on a certain segment of our society and under certain circumstances could rise to the level of fraud. Our holding is expressly limited to the facts of this case." 723 So. 2d at 104.
We agree with Browns conclusion concerning “loan flipping,” which, under certain circumstances, could rise to the level of fraud.
Although Gonzales admits that “at any point in time the representations regarding interest rate and various charges were true,” he asserts that Associates knew “at the time of each representation that it intended to engage in a pattern of activity that would most likely make such representations untrue.” Gonzales would impose a duty on creditors to make disclosures tailored to reflect the impact of subsequent events. However, according to Regulation Z, “[i]f a disclosure becomes inaccurate because of an event that occurs after the creditor delivers the required disclosures, the inaccuracy is not a violation of this regulation . . . .”12 C.F.R. § 229.17(e) (1998). Regulation Z also notes that “[a] refinancing is a new transaction requiring new disclosures to the consumer.” 12 C.F.R. § 226.20(a). But Associates made new disclosures with each refinancing, fully complying with Regulation Z disclosure requirements. If a remedy is to be crafted for this type of a “what might occur in the future” UCCC complaint, it must be supplied by the legislature.
Gonzales also claims that the promissory notes were ambiguous, and thus the duty to exercise reasonable care under the Restatement of Torts (Second) § 551 (1996) exists. We disagree. Section 551 is not applicable here. Associates made all required disclosures. Regulation Z defines a prepaid finance charge as “any finance charge paid separately in cash or by check before or at consummation of a transaction, or withheld from the proceeds of the credit at any time.” 12 C.F.R. § 226.2(23) (1998). Regulation Z also mandates that loan origination fees are considered finance charges. 12 C.F.R. § 226.4(b)(3). The legislature has identified the origination fee at issue here as a prepaid finance charge. K.S.A. 16a-2-401(9)(b). Identifying an origination fee as a prepaid finance charge is not false or fraudulent. As we said in Moore v. State Bank of Burden, 240 Kan. 382, 389, 729 P.2d 1205 (1986), cert. denied 482 U.S. 906 (1987):
“A suppression or concealment of the truth is not at all times such fraud or deceit as will be relieved against. DuShane v. Union Nat'l Bank, 223 Kan. 755, 760, 576 P.2d 674 (1978). There must be a concealment of facts which the party is under a legal or equitable duty to communicate and in respect of which he could not be innocently silent.”
Again, the legislature is Gonzales’ forum. If additional disclosures are to be required of creditors in consumer loan transactions, the new disclosure requirements should originate with the legislature.
Gonzales also asserts we held in Wolf v. Brungardt, 215 Kan. 272, 282, 524 P.2d 726 (1974), that a bank owed a contractual duty to a plaintiff to communicate facts where, among other things, there was a significant disparity of business acumen between the plaintiff and the bank. Wolf does not support Gonzales’ contention. The bank in Wolf was absolved from any liability by the jury, and the issue of its liability was not before us on appeal.
Gonzales relies on Emery v. American General Finance, Inc., 71 F.3d 1343 (7th Cir. 1995). Emery is a Racketeer Influenced and Corrupt Organizations Act mail fraud case. Emery borrowed money from American General Finance (AGF) and was making her payments on time. After approximately 6 months AGF wrote her and told her they had more money for her if she wanted it. The letter said:
“Dear Verna:
“I have extra spending money for you.
“Does your car need a tune-up? Want to take a trip? Or, do you just want to pay off some of your bills? We can lend you money for whatever you need or want.
“You’re a good customer. To thank you for your business, I’ve set aside $750.00° in your name.
“Just bring the coupon below into my office and if you qualify, we could write your check on the spot. Or, call ahead and I’ll have the check waiting for you.
“Make this month great with extra cash. Call me today — I have money to loan.
““Subject to our normal credit policies.” 71 F.3d at 1345.
At the bottom of the letter was a coupon captioned, “ ‘$750.00 Cash Coupon’ ” made out to her at her address. The small print explained, “ ‘This is not a check.’ ” 71 F.3d at 1345. Verna Emery wanted more money, and AGF refinanced her loan. AGF increased her monthly payment from $89.47 to $108.20 and gave her a check for $200, besides paying off her original loan. The cost to her came to about $1,200 paid over 3 years for the right to borrow $200. If she had taken out a new loan rather than refinancing her old one, it would have cost her roughly one-third less, which AGF did not disclose.
The letter sent to Emery makes it appear AGF was offering her a new loan. Only after she went to AGF’s office did she find out that she was refinancing an old loan. The misleading letter in Em ery is absent here. Emery does not hold that refinancing is fraud. A divided court in Emery does hold that the allegations of fraud in the complaint are sufficient to withstand a motion to dismiss for failure to state a claim. 71 F.3d at 1348. Emery concludes:
"We do not hold that ‘loan flipping’ is fraud, because the boundaries of the term are obscure. We do not hold that American General Finance engaged in fraud, or even in ‘loan flipping.’ We do not hold that the mail fraud statute criminalizes sleazy sales tactics, which abound in a free commercial society.” 71 F.3d at 1348.
Here, Gonzales advances no claim that Associates affirmatively misstated anything. We find no fraud in Associates’ refinancing activities.
The Kansas Consumer Protection Act (KCPA)
Gonzales contends his claims under the Kansas Consumer Protection Act (KCPA), K.S.A. 50-623 et seq., should survive summary judgment. He argues that complying with the law by making all required disclosures does not insulate Associates’ deception from the KCPA. Gonzales accuses Associates of having engaged in “the practice of soliciting multiple refinancings,” resulting in “deception that the Truth-In-Lending Act was not designed to prevent.” According to Gonzales, Associates willfully concealed the cost of refinancing, as evidenced by the practice of soliciting customers to refinance. Gonzales claims Associates ambiguously refers to the origination fee as a prepaid finance charge. The result, he asserts, is concealing the “astronomical incremental expense of borrowing small amounts of additional funds when an origination fee is charged on the full amount loaned. . .; the failure to disclose the true loan balance and that the origination fee was actually addqd to the principal balance.” He does not address the fact that Associates could have charged him a 36% interest rate on the “new money” advanced as a separate loan because of the small dollar amount. See K.S.A. 16a-2-401(2); K.A.R. 75-6-24 (authorizing such a rate on loans of $780 or less).
We said in Manley v. Wichita Business College, 237 Kan. 427, Syl. ¶ 2, 701 P.2d 893 (1985): ‘Whether a deceptive act or practice has occurred under the Kansas Consumer Protection Act is not a question of law for the court, but rather a question of fact for the jury to decide.”
Although the issue of whether a supplier has engaged in a deceptive act in violation of the KCPA typically is a jury question, summary judgment is appropriate if there is no evidence of deceptive conduct. See Stair v. Gaylord, 232 Kan. 765, 775-776, 659 P.2d 178 (1983) (directed verdict for defendant on K.S.A. 50-626[b][3] and K.S.A. 50-627[b]; KCPA claims affirmed because no evidence of deceptive or unconscionable acts presented, reversed on other KCPA claims).
Specifically, Gonzales contends Associates violated K.S.A. 50-626(b), which provides, in part:
“Deceptive acts and practices include, but are not limited to, the following, each of which is hereby declared to be a violation of this act, whether or not any consumer has in fact been misled:
“(2) the willful use, in any oral or written representation, of exaggeration, falsehood, innuendo or ambiguity as to a material fact;
“(3) the willful failure to state a material fact, or the willful concealment, suppression or omission of a material fact.”
In defense of its actions, Associates claims it fully complied with TILA requirements and thus its behavior cannot lie deceptive.
We find no showing in the record that Associates either purposefully withheld relevant information or misstated facts with the intention of deceiving Gonzales. See Porras v. Bell, 18 Kan. App. 2d 569, 570-71, 857 P.2d 676 (1993) (intent is a required element for a claim under the KCPA). Transactions that merely appear unfair, or in retrospect are bad bargains, do not state a claim under the KCPA. See Remco Enterprises, Inc. v. Houston, 9 Kan. App. 2d 296, 300-03, 677 P.2d 567, rev. denied 235 Kan. 1042 (1984) (a 20-year-old single welfare mother of three with a ninth-grade education who would have had to pay 108% more than a cash customer for a TV on a rental agreement with option to purchase held no violation of the unconscionability section of the KCPA). Where a record is “devoid of any evidence of deceptive or oppressive practices overreaching, intentional misstatements, or con cealment of facts,” there is no claim under the KCPA. 9 Kan. App. 2d at 303.
The action which stimulates all of Gonzales’ complaints is Associates charging an origination fee based on the amount financed, including refinancing rather than only on the amount of new money advanced with the August and December loans. Gonzales relies on In re Tucker, 74 Bankr. 923 (Bankr. E.D. Pa. 1987). The bankruptcy court in Tucker, on a loan secured by real estate, denied the borrower’s usury claim. The debtor contended that the lender was required to rebate unearned service charges imposed as finance charges on a series of loans when the loans are refinanced. The bankruptcy judge noted that because the debtor had not invoked the Pennsylvania Unfair Trade Practices and Consumer Protection Law, in asserting his usury claim, he was not foreclosed from doing so. 74 Bankr. at 927-28.
The dictum in Tucker is of no assistance to Gonzales here. We find no violation of the KCPA.
Associates’ finance charges, disclosures, and practices, which appear to mirror other lenders in the Kansas consumer loan industry, may not seem fair to some who walk and work on Main Street, Kansas; however, Associates’ conduct, under the facts here, violates neither statute nor case law. Relief lies with the legislature.
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The opinion of the court was delivered by
Six, J.:
This case concerns workers compensation offsets to social security benefits under K.S.A. 1998 Supp. 44-501(h). The claimant, Preston Dickens, Jr., was injured in an automobile collision while delivering pizzas for his employer, Pizza Company, Inc. (Pizza Hut). The Workers Compensation Board (Board) reduced his workers compensation benefits because he receives social security benefits. Dickens appeals.
The Kansas Trial Lawyer’s Association has filed an amicus curiae brief supporting Dickens’ position.
Our jurisdiction is under K.S.A. 20-3017 (transferred on motion by appellant).
We have two issues for review: (1) Do the offset provisions of K.S.A. 1998 Supp. 44-501(h) apply to social security retirees injured while working to supplement their income, and (2) if so, is K.S.A. 1998 Supp. 44-501(h) constitutional as applied to claimant and others similarly situated?
Because the answer to the first issue is “no,” we do not reach issue two.
FACTS
Dickens retired at age 64. One year after retirement, he took a job with Pizza Hut to supplement his social security income. Dickens worked for Pizza Hut 8 years before his injury in an auto collision. At the time of the injury, Dickens was receiving $149.54 per week in social security retirement benefits. His average weekly income from delivering pizzas was $183.26. Dickens was aware of how much he could earn without decreasing his social security benefits. He did not intend to exceed that amount.
As a result of his injuries, Dickens now suffers from serious cognitive difficulties, including short-term memory loss, unsteady gait, impaired balance, and a shortened attention span.
The administrative law judge (ALJ): (1) determined Dickens had a 38 per cent functional impairment rating to the body as a whole and a 100 per cent impairment in his ability to work at any occupation and (2) computed Dickens’: (a) temporary impainnent and total body disability amounts and (b) the appropriate lien and future payments under K.S.A. 44-504 resulting from settlement of Dickens’ tort claim. The parties acknowledge these computations were correct.
The ALJ rejected Pizza Hut’s claim that Dickens’ award should be offset by his social security benefits under K.S.A. 1998 Supp. 44-501(h). The ALJ reasoned that K.S.A. 1998 Supp. 44-501(h) was intended to prevent the duplication of benefits. According to the ALJ, Dickens’ award would not duplicate social security. Rather, the workers compensation benefits would attempt to restore Dickens to the position he was in at the time of his injury (earning a modest wage to supplement his social security benefits). The ALJ relied on Boyd v. Barton Transfer & Storage, 2 Kan. App. 2d 425, 580 P.2d 1366, rev. denied 225 Kan. 843 (1978). Boyd held that a prior statutory offset provision did not apply to retirees injured while supplementing their social security retirement income.
The Board reversed the ALJ’s decision not to offset Dickens’ award under K.S.A. 1998 Supp. 44-501(h). The Board reasoned that the offset provisions of K.S.A. 1998 Supp. 44-501(h) apply “regardless of whether the social security benefits were being paid prior to an accident or were started after an accident occurred.”
DISCUSSION
K.S.A. 1998 Supp. 44-501(h) provides:
“If the employee is receiving retirement benefits under the federal social security act or retirement benefits from any other retirement system, program or plan which is provided by the employer against which the claim is being made, any compensation benefit payments which the employee is eligible to receive under the workers compensation act for such claim shall be reduced by the weekly equivalent amount of tire total amount of all such retirement benefits, less any portion of any such retirement benefit, other than retirement benefits under the federal social security act, that is attributable to payments or contributions made by the employee, but in no event shall tire workers compensation benefit be less than the workers compensation benefit payable for the employee’s percentage of functional impairment.”
The question is whether the K.S.A. 1998 Supp. 44-501(h) offset applies to Dickens. The issue of offsetting workers compensation benefits by social security benefits is' not a new one in Kansas. K.S.A. 44-510f(c), enacted in 1974, was the predecessor of K.S.A. 1998 Supp. 44-501(h). K.S.A. 1974 Supp. 44-510f(c) survived an equal protection challenge in Brown v. Goodyear Tire & Rubber Co., 3 Kan. App. 2d 648, 599 P.2d 1031 (1979), aff'd 227 Kan. 645, 608 P.2d 1356 (1980), but it was repealed in 1977.
In 1993, the legislature made sweeping changes to the Workers Compensation Act. L. 1993, ch. 286. See Rebein, The Kansas Response to the Crisis in Workers Compensation: An Overview of the 1993 Amendments to the Kansas Workers Compensation Act, 62 J.K.B.A. 30 (June/July 1993). A new provision, K.S.A. 1998 Supp. 44-501(h) (the section at issue here) was added. K.S.A. 1998 Supp. 44-501(h) again allowed workers compensation award offsets by social security and added offsets for other retirement benefits. See L. 1993, ch. 286, § 24. (Contributions made by employees to such retirement plans may not be included in the offset calculations.)
We recently upheld an equal protection challenge to K.S.A. 1998 Supp. 44-501(h) in Injured Workers of Kansas v. Franklin, 262 Kan. 840, 870, 942 P.2d 591 (1997). Relying on Baker v. List and Clark Construction Co., 222 Kan. 127, 563 P.2d 431 (1977), and Brown, we said: “[T]he social security offset in K.S.A. [1998 Supp.] 44-501(h) is rationally related to the valid state interest of preventing the duplication of wage loss replacement benefits.” Franklin, 262 Kan. at 870.
Boyd, the case relied on by the ALJ, held that K.S.A. 1976 Supp. 44-510f(c) did not apply to a worker who had already retired, but was working to supplement his social security income. 2 Kan. App. 2d at 429. Boyd concluded “that the legislature did not intend K.S.A. 1976 Supp. 44-510f(c) to apply to plaintiff and those similarly situated, even though the literal wording of that provision might seem to include them.” 2 Kan. App. 2d at 429. The Boyd court reasoned that a retired person who works to supplement social security income suffers a second wage loss when injured in the course of supplemental employment. 2 Kan. App. 2d at 428. Preventing compensation for a second wage loss was inconsistent with the intent of K.S.A. 1976 Supp. 44-510f(c) to avoid wage-loss duplication. There is no wage-loss duplication in the scenario of a worker injured after receiving social security benefits.
In Franklin we declined to comment on the application of the Boyd facts to K.S.A. 1998 Supp. 44-501(h). We said: “[A]n analysis of these questions is best saved until a more appropriate time.” Franklin, 262 Kan. at 871. The appropriate time has arrived. Dickens’ case represents a Boyd factual situation.
Our standard of review for decisions of the Board is set out in K.S.A. 77-601 et seq. Interpretations of statutory provisions are questions of law over which we have unlimited review. Burton v. Rockwell International, 266 Kan. 1, Syl. ¶ 1, 967 P.2d 290 (1998).
The Board ruled the language “is receiving” in K.S.A. 1998 Supp. 44-501(h) does not differentiate between the worker injured while already receiving social security and the worker who is injured and later becomes eligible for social security. Because the legislature did not differentiate between these groups, the Board reasoned K.S.A. 1998 Supp. 44-501(h) applies to both groups.
In Kansas, the Workers Compensation Act has traditionally been viewed as “ ‘one unit in an overall system of wage-loss protection, rather than something resembling a recovery in tort .... [T]he conclusion follows that duplication of benefits from different parts of the system should not ordinarily be allowed.’ ” Baker, 222 Kan. at 130 (quoting 4A Larson, The Law of Workmen’s Compensation, § 97.00 [1976]). The offset provision in K.S.A. 1998 Supp. 44-501(h) is consistent with preventing wage-loss duplication. See Franklin, 262 Kan. at 870. Dickens points out however, that here, as in Bóyd, application of K.S.A. 1998 Supp. 44-501(h) does not prevent wage-loss duplication. Rather, applying 44-501(h) “denies him the benefits that all other injured workers receive as a result of wage loss caused by disability.’’
Pizza Hut suggests that here we are dealing with a different statute than the one at issue in Boyd. We agree. K.S.A. 1998 Supp. 44-501(h) is different from its predecessor K.S.A. 1974 Supp. 44-510f(c). First, K.S.A. 1998 Supp. 44-501(h) provides for offsets of other types of retirement benefits besides social security. Second, K.S.A. 1998 Supp. 44-501(h) does not allow an offset of the functional impairment award.
K.S.A. 1998 Supp. 44-510e(a) defines functional impairment as “the extent, expressed as a percentage, of the loss of a portion of the total physiological capabilities of the human body.” Functional impairment focuses on the physiological losses to the body. Dickens’ functional impairment was found to be 38 per cent. K.S.A. 1998 Supp. 44-501(h) directs that there be no offset against that portion of Dickens’ award.
Pizza Hut focuses on this second difference, arguing K.S.A. 1998 Supp. 44-501(h), unlike its predecessor, does not totally preclude compensation for social security recipients. Pizza Hut contends Boyd does not apply because the offset provision of K.S.A. 1998 Supp. 44-501(h), unlike K.S.A. 1976 Supp. 44-510f(c), still entitles Dickens to receive some compensation for his functional impairment.
We are not persuaded. The Boyd court was concerned, as we are here, with disparate treatment of individuals such as Dickens, seeking to supplement social security income, compared to other social security beneficiaries. The functional impairment provision of K.S.A. 1998 Supp. 44-501(h) does not address the disparate treatment question. The non-retired worker who is injured and later becomes eligible for social security also receives the same functional impairment award, unreduced by social security benefits.
The fundamental rule of statutory construction is to determine legislative intent whenever possible. Boyd, 2 Kan. App. 2d at 428 (citing State, ex rel., v. City of Overland Park, 215 Kan. 700, 527 P.2d 1340 [1974]). In determining legislative intent, we are not limited to a mere consideration of the language used in the statute. Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 (1978).
The 1993 amendments were enacted generally to reduce the cost of workers compensation insurance premiums. See Rebein, 62 J.K.B.A. at 30-31. K.S.A. 1998 Supp. 44-501(h) in particular was added to prevent duplication of wage-loss benefits. Franklin, 262 Kan. at 870. Legislative intent governs construction of a statute even though the literal meaning of the words used in the statute is not followed. We hold the Board’s interpretation is contrary to the intent of K.S.A. 1998 Supp. 44-501(h).
The Boyd court recognized that issues of wage-loss duplication are not at issue in the retired income earner situation. Boyd said: “[W]orkers such as the plaintiff here, who are already retired and receiving social security old age benefits before starting work on a part-time job to supplement those benefits, suffer a second wage loss when they are injured in the course of their employment.” 2 Kan. App. 2d at 428. The Boyd analysis is sound. Although a different version of a set-off statute is at issue here, the reasoning of Boyd is applicable to Dickens.
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The opinion of the court was delivered by
McFarland, C.J.:
Thomas L. and Constance L. Jimenez appeal the district court’s denial of their motion seeking the return of three handguns seized from their residence during the execution of a search warrant.
FACTS
The relevant facts may be summarized as follows. On July 30, 1996, and August 1, 1996, search warrants were executed on the defendants’ Topeka residence by officers of the Topeka Police Department. Among the items seized were guns, currency, drug paraphernalia, methamphetamine; and marijuana..
On August 2, 1996, each defendant was charged in the Shawnee County District Court with one count of possession with intent to sell stimulant drugs (K.S.A. 1997 Supp. 65-4161[a]), a level 3 drug felony; one count of possession with intent to sell hallucinogenic drugs (K.S.A. 1997 Supp. 65-4162[a][3]), a level 3 drug felony; two counts of failure to pay the Kansas drug tax (K.S.A. 79-5208), a level 10 felony; one count of possession of drag paraphernalia (K.S.A. 1997 Supp. 65-4152), a class A nonperson misdemeanor.
Thomas Jimenez pled guilty to and was convicted of one count of possession of methamphetamine with intent to sell (K.S.A. 1997 Supp. 65-4161[a]), a level 3 drag felony, and one count of failure to pay the Kansas drag tax (K.S.A. 79-5208), a level 10 felony. Having no prior convictions, Mr. Jimenez was sentenced to 36 months’ probation.
Constance Jimenez pled guilty to and was convicted of one count of possession of narcotics (K.S.A. 1997 Supp. 65-4160), a level 4 drag felony, and one count of failure to pay the Kansas drag tax (K.S.A. 79-5208), a level 10 felony. Having no prior convictions, Mrs. Jimenez was sentenced to 24 months’ probation.
Defendants each paid a drag tax in the amount of $10,915, thereby fully satisfying the tax warrant filed against them.
All seized items except for three guns, the drag paraphernalia, and controlled substances, were returned to the defendants after their cases were concluded. The three guns are described as: a .22 caliber Ruger semi-automatic pistol, a Smith and Wesson .357 caliber magnum revolver, and a Rohm .38 caliber revolver.
Defendants filed a motion seeking the return of the three guns, requesting that they be turned over to their attorney in partial satisfaction of attorney fees owed. At the hearing the State advised the court:
“We do not want to return the guns. It’s our policy in the District Attorney’s Office and the Topeka Police Department to vehemently oppose the return of guns, especially guns that were seized in connection with drug raids. In this case they were. The defendants can’t even legally possess them because of their convictions.”
The district court reviewed the relevant statutes and concluded that it had discretion as to the disposition of the guns. The court then concluded that it would exercise its discretion by ordering the guns destroyed. Defendants appeal therefrom.
STATUTES
K.S.A. 1997 Supp. 22-2512 concerns the safekeeping and dis posal of various types of seized property. In pertinent part it provides:
“(2) When property seized is no longer required as evidence, it shall be disposed of as follows:
(a) Property stolen, embezzled, obtained by false pretenses, or otherwise obtained unlawfully from the rightful owner thereof shall be restored to the owner;
(b) money shall be restored to the owner unless it was contained in a slot machine or otherwise used in unlawful gambling or lotteries, in which case it shall be forfeited, and shall be paid to the state treasurer pursuant to K.S.A. 20-2801, and amendments thereto;
(c) property which is unclaimed or the ownership of which is unknown shall be sold at public auction to be held by the sheriff and the proceeds, less the cost of sale and any storage charges incurred in preserving it, shall be paid to the state treasurer pursuant to K.S.A. 20-2801, and amendments thereto;
(d) articles of contraband shall be destroyed, except that any such articles the disposition of which is otherwise provided by law shall be dealt with as so provided and any such articles the disposition of which is not otherwise provided by law and which may be capable of innocent use may in the discretion of the court be sold and the proceeds disposed of as provided in subsection (2)(b);
(e) firearms, ammunition, explosives, bombs and like devices, which have been used in the commission of crime, may be returned to the rightful owner, or in the discretion of the court having jurisdiction of the property, destroyed or forfeited to the Kansas bureau of investigation as provided in KS.A. 21-4206 and amendments thereto;
(f) controlled substances forfeited under the uniform controlled substances act shall be dealt with as provided under K.S.A. 60-4101 through 60-4126 and amendments thereto;
(g) unless otherwise provided by law, all other property shall be disposed of in such manner as the court in its sound discretion shall direct.” (Emphasis added.)
K.S.A. 21-4206, referred to in K.S.A. 1997 Supp. 22-2512(2)(e), provides:
“(1) Upon conviction of a violation or upon adjudication as a juvenile offender for a violation of K.S.A. 21-4201, 21-4202, 21-4204 or 21-4219, and amendments thereto, and K.S.A. 21-4204a, any weapon seized in connection therewith shall remain in the custody of the trial court.
“(2) Any stolen weapon so seized and detained, when no longer needed for evidentiary purposes, shall be returned to the person entitled to possession, if known. All other confiscated weapons when no longer needed for evidentiary purposes, shall in the discretion of the trial court, be destroyed, forfeited to the law enforcement agency seizing the weapon for use within such agency or traded to another law enforcement agency for that agency’s use or forfeited to the Kansas bureau of investigation for law enforcement, testing, comparison or destruction by the Kansas bureau of investigation forensic laboratory.” (Emphasis added.)
For the purpose of the application of these statutes to the issue in this appeal, the State concedes that the firearms in question were no longer needed as evidence in the case; that defendants were not convicted of violations involving K.S.A. 21-4201, 21-4202, 21-4204, 21-4219 and 21-4204a; that the firearms belong to the defendants; and, that the firearms were not stolen property. At oral argument, the State withdrew its contention that tire firearms were used in the commission of crime.
STATUTORY CONSTRUCTION
When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. State v. Lawson, 261 Kan. 964, 966, 933 P.2d 684 (1997).
Statutes for the seizure and destruction of property are penal and must be strictly construed against the State and in favor of the owner. They should not and cannot be enlarged or extended by courts with the aid of inferences, implication, and strained interpretations, but such actions must be fully justified by the statute. A statute’s language cannot be enlarged beyond the ordinary meaning of its terms in order to carry into effect the general purposes for which the statute was enacted. State v. Durst, 235 Kan. 62, 66, 678 P.2d 1126 (1984) (interpreting K.S.A. 22-2512[4] [Ensley] [now K.S.A. 1997 Supp. 22-2512(2)(d)]); State v. One Bally Coney Island No. 21011 Gaming Table, 174 Kan. 757, 760, 258 P.2d 225 (1953).
DISCUSSION
Defendants argue that only two statutes should be considered herein, and as neither is applicable to the facts herein, the court lacked discretion to order their guns destroyed contrary to their request for their transfer to their attorney. Specifically, they contend that as K.S.A. 21-4206 applies only to conviction of the crimes listed therein, and as K.S.A. 1997 Supp. 22-2512(2)(e) applies only to guns that have been used in the commission of crime, there is no statutory authority granting discretion to the court in the disposition of the guns at issue herein. In summary, defendants do not argue that the district court abused its discretion in ordering the destruction of the firearms; rather, they argue that the district court has no discretion to exercise.
The State argues that, although K.S.A. 21-4206 and K.S.A. 1997 Supp. 22-2512(2)(e) are inapplicable under the facts herein, K.S.A. 1997 Supp. 22-2512(2)(g) is applicable and granted the court discretion to order the guns destroyed. The State also notes that, by virtue of their conviction, defendants are prohibited from possessing the guns (K.S.A. 1997 Supp. 21-4204[a][2]). As abuse of discretion is not an issue herein, we need not consider the proposed alternative disposition of turning the guns over to defendants’ attorney as partial payment of his fees.
K.S.A. 21-4206 is, as the parties agree, inapplicable under the facts herein as none of the crimes to which it applies are involved herein. This brings us to K.S.A. 1997 Supp. 22-2512(2), the general statute governing the disposition of seized property.
K.S.A. 1997 Supp. 22-2512(2)(a) through (f) lists specific categories of seized property and states the appropriate range of disposition for each category thereof. The final subsection of the statute, K.S.A. 1997 Supp. 22-2512(2)(g), states that “unless otherwise provided by law, all other property shall he disposed of in such manner as the court in its sound discretion shall direct.” (Emphasis supplied.) As the guns herein are not included in any specific category enumerated in the statute, they are included in tihe general catchall final category designated in (g) as “all other property.” Under the plain language of this subsection, the district court had die discretion to order the destruction of the guns herein.
CONCLUSION
K.S.A. 1997 Supp. 22-2512(2)(g) granted discretion to the trial court to order the destruction of the seized guns under the facts herein.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
This is a personal injury action that arose from an intersection collision between a vehicle driven by James Rafferty and a truck belonging to Land O’Lakes, Inc. (Land O’Lakes). The case was tried to a jury, which attributed 50% fault to James Raf ferty. The Raffertys appealed. This appeal was transferred from the Court of Appeals pursuant to K.S.A. 20-3018(c).
On February 3, 1994, at approximately 6 a.m., two vehicles collided at the intersection of 4th and Monroe Streets in Topeka. The intersection is controlled by traffic signals located on the comers and overhead. It was dark at the time of the accident.
One vehicle, a semi-trailer truck, was driven by Terry Dossett for Land O’Lakes. He exited Interstate 70 at the 4th Street exit. He was going to deliver his load of dairy products to a distributor that was located less than a mile away.
The other vehicle was a pickup truck, which was driven by James Rafferty. He was on his way to work at Santa Fe Railroad, which is on Quincy Street. His shift began at 7 a.m.
In a statement given to the police officer at the scene of the accident, Dossett said:
“I had just come off of Interstate 70.1 turned left on 4th Street to go west. I was going to Kaw Valley Cheese and Butter. At 4th and Monroe I . . . wasn’t paying attention and ran a red light. I hit the pickup crossing in front of me. I was going between 10 and 15 miles per hour. I have no idea how fast the pickup was going.”
At trial, Dossett testified that he did not know what color the light was when he entered the intersection of 4th and Monroe. He stopped at the bottom of the exit ramp from Interstate 70, then turned left onto 4th Street, entered the intersection of 4th and Monroe at approximately 15 miles per hour, and collided with Rafferty’s truck without ever seeing it. He heard no hom or brakes.
Rafferty testified that the traffic light changed from red to green as he approached the intersection; he “proceeded forward and the next thing [he] knew someone was shaking [him].” He remembered nothing about the collision.
There were two witnesses to the accident. Gary Gorden testified that he was driving behind Rafferty, whose “pickup appeared to have been stopped and then the light had changed and it took off.” He estimated Rafferty’s speed at 5 to 10 miles per hour and Dos-sett’s speed at “probably forty miles an hour.” Leonard Tyler testified that his office was in the building at 4th and Monroe. He was walking toward the intersection at the time of the accident. He saw the semi-trailer truck enter the intersection on a green light. On cross-examination, Raffertys’ counsel showed Tyler a photograph of the intersection that had been taken during daylight from where Tyler was walking at the time of the accident. Tyler was asked to observe that the traffic signal had “shields” and “cones” on it. Rafferiys’ counsel asked, “And you are telling us from your vantage point three feet beyond what’s viewed in that photograph that you were able to see that the light was green?” Tyler answered, “Sure; because it reflects, it glows.” On redirect examination, he further explained that in the dark he could see the green glow of the traffic signal, even if he would not have been able to tell the color of the light from the same spot during daylight hours.
The Raffertys first argue that the verdict should have been vacated by the district court on the ground that a lawyer not admitted to practice in Kansas represented Land O’Lakes at trial. Interpretation of statutes and rules is a question of law. On appeal, this court’s review of a question of law is unlimited. See Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997); Todd v. Kelly, 251 Kan. 512, 515, 837 P.2d 381 (1992).
The Raffertys’ petition was filed in Shawnee County District Court on September 13, 1995. The answer was filed on behalf of Land O’Lakes by a Topeka attorney. A letter contained in the record on appeal shows that by February 1996, plaintiffs’ attorney was corresponding about discovery matters with Stephen S. Brown of the Kansas City, Missouri, office of the firm Niewald, Waldeck & Brown. The first filing contained in the record on appeal that bears Brown’s signature is an entry of appearance, with the file-stamped date of February 7, 1996. Brown signed the entry of appearance, listing a Kansas City, Missouri, address for the firm and a Missouri Bar number for himself. The filing is co-signed by another member of the firm, Michael Sears, who lists a Kansas Supreme Court registration number. In December 1996, a notice was filed substituting Victoria M. Schroeder for Sears as counsel of record for Land O’Lakes. Schroeder has a Kansas Supreme Court registration number. Examination of the record on appeal reveals a number of filings served and letters exchanged between counsel for the Raffertys and counsel for Land O’Lakes from which Brown’s status as an attorney admitted to practice in Missouri and not in Kansas was obvious.
Trial was held in April 1997. On May 8, 1997, counsel for the Rafferiys filed a motion to vacate the verdict and judgment on the ground that Stephen Brown, who actively participated in the trial, was not admitted to practice law in Kansas and had “never moved the Court, in writing or orally, for admission for the purposes of this case.”
In response, Victoria Schroeder filed a “Motion for Admission Pro Hac Vice” for the admission of Stephen S. Brown as the attorney of record for Land O’Lakes. Attached to the motion is the affidavit of Brown, in which he states the following:
“I am a shareholder at Niewald, Waldeck & Brown, P.C., a Missouri Professional Corporation, with its primary office located at 1200 Main, Suite 4100, Kansas City, Missouri 64105 and which is authorized to do business in the State of Kansas with a Kansas business address of 51 Corporate Woods, 9393 W 110th Street, Suite 500, Overland Park, Kansas, 66210.”
On July 9,1997, the district court granted the motion and admitted Brown “to practice before this Court in this particular civil action as long as he has associated himself with members in good standing of the bar of this Court.” The district court also denied the Raffertys’ motion to vacate the verdict.
K.S.A. 7-104 provides:
“Any regularly admitted practicing attorney in the courts of record of another state or territory, having professional business in the courts or before any board, department, commission or other administrative tribunal or agency, of this state, may, on motion be admitted to practice for the purpose of said business only, in any of said courts, tribunals or agencies, upon taking the oath as aforesaid and upon it being made to appear by a written showing filed therein, that he or she has associated and personally appearing with him or her in the action, hearing or proceeding an attorney who is a resident of and duly and regularly admitted to practice in the courts of record of this state, upon whom service may be had in all matters connected with said action, hearing or proceeding, with the same effect as if personally made on such foreign attorney, within this state, and such foreign attorney shall thereupon be and become subject to the order of, and amenable to disciplinary action by the courts, agencies or tribunals of this state. No such court, agency or tribunal shall entertain any action, matter, hearing or proceeding while the same is begun, carried on or maintained in violation of the provisions of this section, but nothing in this section shall be construed to prohibit any party from appearing before any of said courts, tribunals or agencies, in his or her own proper person and on his or her own behalf.”
Supreme Court Rule 116 (1997 Kan. Ct. R. Annot. 152) provides, in part:
“(a) Any attorney not admitted to the practice of law in Kansas but regularly engaged in the practice of law in another state or territory, and who is in good standing pursuant to the rules of the highest appellate court of such state or territory, who has professional business in the courts or any administrative tribunal or agency of this state, may on motion be admitted to practice law for the purpose of said business only, upon showing that he or she has associated with him or her, an attorney of record in the action, hearing or proceeding, who is a resident of Kansas, regularly engaged in the practice of law in Kansas, and who is in good standing under all of the applicable rules of the Supreme Court of Kansas. The Kansas attorney of record shall be actively engaged in the conduct of the matter or litigation, shall sign all pleadings, documents, and briefs, and shall be present throughout all court or administrative appearances. . . .
“(c) No court, agency or tribunal shall entertain any action, matter, hearing or proceeding while the same is begun, carried on or maintained in violation of the provisions of this rule. Nothing in this rule shall be construed to prohibit any party from appearing personally before any of said courts, tribunals or agencies on his or her own behalf.”
The Raffertys contend that the verdict and judgment in this matter should be vacated because the district court entertained the action in violation of the statute and the rule. It is their position that Brown’s entry of appearance and subsequent unquestioned and unobjected to active representation of Land O’Lakes is not a substitute for a motion requesting that he be admitted to practice law in this state for the purpose of this action. They cite Taylor v. Taylor, 185 Kan. 324, 342 P.2d 190 (1959); Bradley v. Sudler, 172 Kan. 367, 239 P.2d 921 (1952); and Architectural & Engineered Products Co. v. Whitehead, 19 Kan. App. 2d 378, 869 P.2d 766, rev. denied 255 Kan. 1000 (1994) (A & E Products).
A & E Products does not support the Raffertys’ argument. The plaintiff in that case, A & E, was represented by Dennis Muller, an attorney licensed in Missouri. Although the pleadings also reflected as attorney of record John McNally, an attorney licensed in Kansas, none of the substantive pleadings in the action had been signed by him. Where McNally’s name appeared, Muller had con formed the signature. McNally had not appeared at any of the proceedings before the district court, and Muller had not informed McNally when the pretrial conference was scheduled. Nor had Muller filed a motion to be admitted to practice in Kansas in the A & E Products proceedings. When Whitehead’s counsel learned at the pretrial conference of Muller’s failure to comply with the-pertinent statute and rule, they requested that A & E’s petition be stricken and the action be dismissed with prejudice. Denying A & E’s attorneys’ request for leave to comply with the procedural requirements, the district court struck the pleadings and dismissed the action with prejudice. Citing Thornburg v. McClelland, 186 Kan. 20, 348 P.2d 617 (1960), and K.S.A. 1993 Supp. 60-211 and its antecedents for the principle that litigants should be given notice and opportunity to cure procedural defects, the Court of Appeals reversed.
In Thornburg, the court held that a litigant’s failure to comply with the procedural requirements of K.S.A. 7-104 does not deprive the court of jurisdiction. Instead, the statute prohibits a court from entertaining an action “while the same is begun, carried on or maintained in violation of the provisions of this section.” The court added that a court has power to strike pleadings or dismiss an action if the litigant, once on notice, failed to take steps to comply. In A & E Products, the Court of Appeals stated: “We read this to mean that, once the party has notice, that party should have an opportunity to comply. Failure to give the party this opportunity to comply constitutes error.” 19 Kan. App. 2d at 381. In Thornburg, this court stated its belief “that it would be unfair and unnecessary to construe the statute to have a technical and arbitrary meaning so that the litigants may be injured when the sole purpose of the statute is to regulate the practice of lawyers for the benefit of the public and the courts.” 186 Kan. at 23.
In the present case, when the Raffertys’ counsel complained after trial that Brown had not asked to be admitted in this state for the purpose of the instant proceedings, Schroeder filed a written “Motion for Admission Pro Hac Vice” of Brown. The motion was supported by Brown’s affidavit, which furnished all pertinent in formation about where he was admitted to practice and his good standing. The motion was granted; the defect was cured.
Thornburg marked something of a turning point in this court’s interpretation of K.S.A. 7-104. After reciting the factual circumstances, the court stated: “From the above record it would clearly appear that the bar of the state is in doubt as to the construction to be placed upon the language of section 7-104. We feel that the time has arrived when this court should clearly define the meaning of the section.” 186 Kan. at 22. The court went on to reject the contention that the statute deprives the court of jurisdiction in the absence of compliance and to construe the statute as authorizing dismissal of an action only “[i]f the party refuses to comply with the order of the court.” 186 Kan. at 23. The case of Bradley v. Sudler, 172 Kan. 367, was superseded by the court’s interpretation of 7-104 in Thornburg, 186 Kan. at 22. Taylor v. Taylor, 185 Kan. 324, was discussed by the court and distinguished in Thornburg as involving a party who refused to comply with the order of the court, on which ground it also is distinguishable from the present case. Finally, in Thornburg, the court cleared the way for its new interpretation of 7-104 by stating that “[a]ny possible implications contrary to this interpretation of the statute in former cases, if any there be, are hereby disapproved.” 186 Kan. at 23.
Land O’Lakes cites Terrell v. Tschirn, 656 So. 2d 1150 (Miss. 1995). In Terrell, facts remarkably similar to those in the present case did not result in stricken pleadings or dismissal of the action. Tschim’s attorney, who was licensed in Louisiana but not in Mississippi, failed to follow the prescribed procedure to appear pro hac vice. Not until after an adverse verdict was returned against him did Terrell move to strike the pleadings and set aside the judgment due to opposing counsel’s noncompliance with the Mississippi Supreme Court rule governing foreign attorneys and local counsel. The trial court denied Terrell’s motion as untimely. The appellate court affirmed, stating: ‘Where a party knows or with reasonable diligence may have discovered the Rule 46 violation, the failure to file a motion prior to trial acts as a waiver and procedurally bars him from raising the issue on appeal.” 656 So. 2d at 1152. The appellate court likened the situation to one in which a party who knows of grounds for a judge’s recusal waited until after an adverse verdict to raise the issue, and stated: “Terrell should not be allowed to take his chances with a jury and then, after he loses, file his motion.” 656 So. 2d at 1152. Tschirris attorney’s noncompliance consisted of failing to submit an affidavit and associating as local counsel a person shown on the Mississippi Bar rolls as being ineligible to practice. The Mississippi Supreme Court believed that “[w]ith reasonable diligence Terrell could have come by this information prior to trial.” 656 So. 2d at 1152-53.
Anticipating an argument about the timing of their motion, the Raffertys deny that they acquiesced in Brown’s violation, deny that there is any “proof or suggestion” that.they earlier had knowledge of the violation, and deny that they have a duty to enforce the statutes and rules regarding foreign attorneys. We do not agree. We find the reasonable diligence standard applied by the Mississippi court has merit and, applied to the present case, would bar the Raffertys’ complaint. The absence of a formal motion for admission was obvious — if a motion were in writing, plaintiff’s counsel would have received a service copy, and if a motion were made orally at the time courtroom proceedings began, which the statute and rule seem to contemplate, plaintiff’s counsel would have been present. Moreover, seemingly contraiy to plaintiff’s counsel’s contention, Supreme Court Rule 207 (1997 Kan. Ct. R. Annot. 213) creates a duty for each member of the bar of this state to report any inaction which would constitute misconduct of an attorney.
We conclude that the trial court did not err in refusing to set aside the verdict and in granting Brown’s motion for admission pro hac vice. We interpret the statute and rule to prohibit the court from entertaining any proceedings where a party fails or refuses to comply with the statute and rule after notice. Here, the Raffertys’ failure to bring Brown’s noncompliance to the attention of the court in a timely manner constitutes a waiver and precludes them from raising the issue on appeal.
The Raffertys next contend the district court abused its discretion by permitting defense witness Nordtvedt to testify about his observation of the traffic signal at the scene of the accident. Appellate review of the trial court’s evidentiary rulings is restricted to considering whether there has been an abuse of judicial discretion. Koser v. Atchison, Topeka & Santa Fe Ry. Co., 261 Kan. 46, 61, 928 P.2d 85 (1996).
Roger Nordtvedt, who has responsibility for certain transportation-matters for Land O’Lakes, attended the trial as a corporate representative. He was called as a witness and testified briefly about the cooperative structure of Land O’Lakes, about the company’s products, and about the distribution of products and his role in it. He testified that Terry Dossett took a drug test after the accident at issue and passed it. Then, over plaintiffs’ counsel’s objection, he was permitted to testify that he had visited the scene of the accident the night before he took the stand as a witness, that he had stood on or near the spot where Leonard Tyler and the photographer of Exhibit 49 had been, and that in the dark he could see the glowing color of the activated light around its shield. He noted that Plaintiffs’ Exhibit 49 was taken in daylight, and thus differed from what he saw from the same position in the dark. He also stated that he had seen the intersection in daylight, that glowing color of the traffic signals was visible during the daytime, but “absolutely not” as visible as in the dark.
The Raffertys contend that the testimony of Roger Nordtvedt “concerning the traffic lights was incompetent and unfairly surprising” to them. They complain that Nordtvedt had been identified only as a representative of Land O’Lakes so that they could not have anticipated that his testimony would include observations about the accident scene. They contend that they were prevented by “practical difficulties” and “the very real suspicion with which the jurors would greet such testimony” from rebutting Nordtvedt’s testimony.
The Raffertys cite Yorita v. Okumoto, 3 Hawaii App. 148, 643 P.2d 820 (1982), and Hagedorn v. Stormont-Vail Regional Med. Center, 238 Kan. 691, 715 P.2d 2 (1986), as analogous authorities. Neither is analogous or helpful here.
What the Raffertys seem to find instructive about Yorita is that Dr. Lundborg, identified as the hospital’s designated representative, was not allowed to testify. In contrast, Nordtvedt, identified as Land O’Lakes’ representative, was allowed to testify. There is no parallel, however. In fact, the trial judge did not allow Dr. Lundborg to be the hospital’s designated representative in court, and, moreover, this matter of his status is immaterial to the appellate court’s holding and rationale. Dr. Lundborg’s testimony, alongwith that of two other proposed surrebuttal witnesses, was excluded by the trial judge when the hospital, without the trial court’s prior approval, reserved evidence relevant to its defense rather than presenting it in its case in chief. The circumstances in the present case are completely unlike those in Yorita in that the defendant’s witness, Nordtvedt, gave testimony that corroborated the testimony of another defense witness, Leonard Tyler, and tended to show that plaintiffs’ photographic evidence was not conclusive. Plaintiffs did not attempt to introduce rebuttal evidence.
In Hagedom, when the plaintiff’s expert medical witness was deposed during discovery, his opinions were based on medical records and depositions that he had reviewed. When he arrived in Topeka during the course of the trial, he visited the defendant hospital without identifying himself as connected with the pending case against the hospital. He inspected pertinent areas of the hospital and interrogated nurses about practices and procedures. “Not only was the discovery unauthorized, but the communication between the attorney and the adverse party was in direct violation of the canons of professional ethics.” 238 Kan. at 697. Moreover, the expert witness’ observations and conversations at the hospital “injected new material as the basis for his opinions,” and the defendants did not know what that material might be. 238 Kan. at 696-97. This court concluded that the trial judge “thoughtfully resolved the problem” by permitting the expert witness’ deposition, which contained his pre-visit opinions, to be read at trial on behalf of the plaintiff. 238 Kan. at 697. He was not allowed, however, to take the witness stand and testify.
In the present case, there was no unauthorized discovery or ethical violations. Nordtvedt had not been deposed, and there was no issue regarding plaintiffs’ expectations for his testimony being supplanted, and, contrary to the Raffertys’ protestations, nothing pre vented them from presenting rebuttal testimony. The district court did not abuse its discretion in allowing the testimony.
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The opinion of the court was delivered by
Davis, J.:
The issue raised by this appeal is one of first impression involving a claimed property tax exemption under the provisions of K.S.A. 79-201 Ninth. Specifically, the question is whether a not-for-profit corporation which leases property to another not-for-profit corporation for below fair market value, which second not-for-profit corporation then uses the property for predominantly humanitarian purposes, is entitled to exemption where both the owner-lessor and lessee satisfy all the requirements of K.S.A. 79-201 Ninth. Contrary to the decision of Board of Tax Appeals (BOTA) and the district court, we conclude that under the particular facts here, exemption is warranted.
The case presents itself in a rather unusual fashion. Before BOTA, before the district court, and before this court on petition for review, the Sedgwick County Commissioners agreed with the appellant that the property was entitled to tax exemption. In its brief before this court, the county commissioners note:
“when the evidence regarding the use of the subject property is analyzed within the perimeters of K.S.A. 79-201 Ninth, and applicable ease law, it appears the Appellant’s property is entitled to said exemption. It should be noted that the Courts have not construed K.S.A. 79-201 Ninth’s provisions regarding‘substantial and predominant use’ and BOTA acknowledged it lacked guidance from the Courts in its effort to define substantial and predominant use. However, it is also noteworthy to consider the Kansas Courts’ relaxation of the ‘exclusive use’ test, and the expanding definition of ‘educational use’ found in other exemption statutes. See e.g. K.S.A. 79-201 Second, and K.S.A. 79-201b First and Second.”
The University of Kansas School of Medicine — Wichita Medical Practice Association (WMPA) is the owner-lessor of the property for which exemption is claimed. It is a Kansas not-for-profit corporation and certified by the Internal Revenue Service (IRS) as a 501(c)(3) charitable organization. Its board of directors consists of doctors who teach medicine at the University of Kansas School of Medicine — Wichita (University). The WMPA is not part of the University. However, the WMPA was set up to further the mission of the University in providing health care, teaching medical students and residents of the University, and providing the faculty of the University the opportunity to maintain their skills while teaching.
The WMPA operates its own primary care clinic upon University property which is open to the public. The clinic provides primary care for approximately 105 patients a day. In addition, the WMPA fosters the creation of other clinics in the Wichita area for primary and preventive care, and aids in the operation of the clinics established. Its articles of incorporation provide in part that the WMPA is to
“engage in the continuous active conduct of medical education, medical research and medical care primarily in space located within the University of Kansas School of Medicine — Wichita in conjunction with and utilizing the facilities of such School of Medicine (including equipment, case studies, etc.) on a continuing basis. The principal purposes or functions of the corporation shall include the instruction and training of students, undergraduate, graduate and enrolled in the University of Kansas School of Medicine — Wichita Medical Practice Association pursuing a course of medical education offered by the University of Kansas, the conduct of investigations, research, experiments and studies to discover, develop or verify knowledge relating to the causes, diagnosis, treatment and the prevention or control of physical or mental diseases and impairments to man and the providing of medical care through its professional staff performing clinical services.”
The Wichita Primary Care Center (Center) is the lessee of the property for which exemption is claimed. It is also a Kansas not-for-profit corporation and an IRS-certified 501(c)(3) charitable or ganization. The Center was created by the WMPA as an extension of the WMPA mission. The Center is a separate entity with a separate board of directors. However, one member of the board of directors of the WMPA serves as a board member of the Center. The Center operates a primary care clinic in Wichita and is designed to serve low income and medically underserved patients. Thirty percent of the Center’s patients are very low-income individuals who do not have any support from Medicare or Medicaid. Another 50% are low-income individuals who are subsidized by Medicare or Medicaid. The balance of patients have adequate health insurance. Approximately 10% of the patients speak very little or no English.
The purpose of the Center is to provide a medical facility for patients that may not be otherwise served. It is designed to be a place where patients receive primary health care, preventive health care, and access to tertiary care such as the hospital, surgeon, and/ or testing that patients might not otherwise access. The Center attempts to change people’s patterns of accessing health care for primary and preventive health care.
The Center is set up as a Federally Qualified Health Center (FQHC) and provides medical care for low income and underserved populations on a sliding scale. As a FQHC, the Center receives a reimbursement advantage with the Medicare and Medicaid programs. Once the Center has established a rate of cost of seeing a patient and that cost is approved by Medicare or Medicaid, reimbursement to the Center is based on the number of encounters as opposed to typical fee for service schedules in Medicare and Medicaid reimbursement. In order to maintain FQHC status, at least seven persons on the Center’s thirteen-member board of directors are required to be actual patients of the facility. The remaining six members, only three of which can derive their income from the medical held, are drawn from the community.
Through personal interviews with prospective patients and a sliding fee schedule, the Center attempts to determine and remove the barriers that medically underserved and low income patients typically encounter. The Center arranges a referral service for patients who need immediate hospitalization and surgery but who would avoid these services because of the economic barrier. These services are provided at no cost to the patient or on a sliding scale depending upon the financial condition of the patient. No patient is refused service.
The primary difference between the Center and a private primary care clinic is the mix of patients. The numbers of patients who do not pay, or pay very little, is high compared to a private primary care practice. The number of no-shows in the Center is also high. Patients are seen by physicians serving on the faculty of the medical school, together with medical students, interns, and residents who are supervised by a physician. The Center is able to provide a unique role in the delivery of primary and preventative health care to the medically underserved in the Wichita community.
The Center’s articles of incorporation provide in part that it will
“[p]rovide primary health care services to the citizens of Kansas; promote improved health status and well being of citizens of Kansas; care for the sick and injured without regard to race, sex, color, political or religious beliefs, country of national origin, or ability to pay; promote a cooperative working relationship with the University of Kansas School of Medicine — Wichita in the development of medical care delivery systems designed to enhance the health and welfare of the citizens of Kansas: and to promote such other related charitable and educational endeavors as may be permitted under Section 501(c)(3) of the Internal Revenue Code.”
The Center was temporarily housed as a clinic in space inside a building operated by the University. The WMPA began looking for a suitable site to house the Center. The site needed to be located in the vicinity of the patients who would use the clinic, in a location where barriers to primary health care exist, such as language, low income, and racial mix.
The property for which exemption is claimed satisfied the above requirements. It was a stand-alone medical facility that had been designed and built for a group of surgeons years ago, located at 1125 North Topeka in Wichita. It consists of approximately 5000 square feet with ample off-street parking. However, the Center was not in a position to buy the property. The WMPA approached the St. Francis Via Christi Health System to inquire if it would buy the building and lease it to the Center. However, after negotiations, the WMPA determined that the lease rate was too high. Thus, the WMPA chose instead to purchase the property out of its own reserves and lease it back to the Center.
The WMPA purchased the property in the summer of 1994 for the express purpose of leasing tire facility to the Center. The WMPA and the Center entered into a nonresidential lease on September 30 for the term of 30 months beginning October 1, 1994, and expiring April 1, 1997. Under the lease, the Center pays rent in the amount of $8.25 per square foot per month, which amounts to $3,644 per month. The Center is also required to pay such real estate taxes as may be assessed against the property. These taxes are estimated to be approximately $1.60 per square foot per year. It should be noted that this provision regarding payment of taxes is not a binding obligation upon the Center. The Center is responsible only in the event taxes are required to be paid by the WMPA. In addition to other standard conditions, the lease prohibits the use of the property for any other purpose than the operation of medical offices.
Administrative leadership for the Center is provided by the administrator of the WMPA, who is a co-administrator for the Center. Through contractual agreements, the Center uses the WMPA facilities for billing, accounting, and related services, and pays for these services. While the physicians who staff the clinic are not employees of the Center, all other personnel working at the Center are employees of the Center.
The Center contracts with the WMPA for physician services. The Center pays the WMPA a below-market rate for the physicians who staff the Center. The physicians who see patients at die Center are faculty members of the University and also employees of the WMPA. For their work in the Center and other work on behalf of the WMPA, the WMPA pays an amount equal to 7½% of their faculty salary. Thus, the physicians who teach at the University and work at the Center receive compensation from the State as members of the faculty of the University and compensation from the WMPA in an amount of 7½% of their salary for their services at the Center.
The WMPA is responsible for maintaining the clinic property of the Center. The rent paid by the Center, $8.25 per square foot, is below fair market value, which evidence establishes is $10 to $12 per square foot. The WMPA uses 22% to 23% of rental income for the operation and for repairs to the facility. The remainder becomes part of the budget of the WMPA and either goes into its reserves to be utilized as needed for sustaining the WMPA during periods of financial hardship where revenues collapse and expenses continue, or is used in furtherance of the humanitarian services that the WMPA provides.
The WMPA sought a tax exemption for the property under K.S.A. 79-201 Ninth, which provides in pertinent part:
“All real property and tangible personal property actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services, which is owned and operated by a corporation organized not for profit under the laws of the state of Kansas or by a corporation organized not for profit under the laws of another state and duly admitted to engage in business in this state as a foreign not-for-profit corporation if: (a) The directors of such corporation serve without pay for such services; (b) the corporation is operated in a manner which does not result in the accrual of distributable profits, realization of private gain resulting from the payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered or the realization of any other form of private gain; (c) no officer, director or member of such corporation has any pecuniary interest in the property for which exemption is claimed; (d) the corporation is organized for the purpose of providing humanitarian services; (e) the actual use of property for which an exemption is claimed must be substantially and predominantly related to the purpose of providing humanitarian services, except that, the use of such property for a nonexempt purpose which is minimal in scope and insubstantial in nature shall not result in the loss of exemption if such use is incidental to the purpose of providing humanitarian services by the corporation; (f) the corporation is exempt from federal income taxation pursuant to section 501(c)(3) of the internal revenue code of 1986 and; (g) contributions to the corporation are deductible under the Kansas income tax act. As used in this clause, ‘humanitarian services’ means the conduct of activities which substantially and predominantly meet a demonstrated community need and which improve the physical, mental, social, cultural or spiritual welfare of others or the relief, comfort or assistance of persons in distress or any combination thereof including but not limited to health and recreation services, child care, individual and family counseling, employment and training programs for handicapped persons and meals or feeding programs.”
BOTA Decision
BOTA denied the WMPA request for exemption. BOTA analyzed the requested exemption under the provisions of K:S.A. 79-201 Ninth from the perspective of the corporation requesting the exemption, the WMPA. BOTA began its analysis of the question and its decision by stating that “the Board strictly construes applications for exemption and all doubts are resolved against the applicant.” In adopting this approach, BOTA relied upon earlier decisions of this court in interpreting Kansas constitutional and statutory tax exemption provisions. The decisions relied upon by BOTA involved questions of whether the property claimed as exempt was “exclusively used” for an expressed constitutional or statutory purpose-. See T-Bone Feeders, Inc. v. Martin, 236 Kan. 641, 645-46, 693 P.2d 1187 (1985).
The statute we consider in this case does not involve the question of “exclusive use” but rather.involves a question of actual use “for the predominant purpose of providing humanitarian services.” K.S.A. 79-201 Ninth. We do not depart from our earlier decisions and the fundamental rules and legal principles established as guidelines to be applied when examining tax exemption statutes, which are quoted in part in the BOTA decision:
“(1) Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation. [Citation omitted.]
“(2) Constitutional and statutory provisions exempting property from taxation are to be strictly construed. [Citations omitted.]
“(3) The burden of establishing exemption from taxation is on the one claiming it. [Citation omitted.]” 236 Kan. at 645-46.
However, because we deal with a newly enacted exemption based upon other than “exclusive use,” we may not ignore the very fundamental rule of statutory interpretation. The intent of the legislature, where it can be ascertained, governs the construction of the statute, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. See In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 842, 877 P.2d 437 (1994). The rule of strict construction is subservient to the fundamental rule of statutory construction, which requires that the intent and purpose of the legislature govern. In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. 237, 246, 891 P.2d 422 (1995).
BOTA acknowledged that it had no guidance from this court on “predominant use” but failed to give any consideration to the intent of the legislature in its adoption of K.S.A. 79-201. BOTA also gave very little consideration to the Center’s actual and regular use of the property for which exemption is claimed. According to the provisions of K.S.A. 79-201 Ninth, we may not ignore this aspect of the case.
In denying the requested exemption, BOTA concluded:
“12. With, respect to requirements (a) and (c) of K.S.A. 1995 Supp. 79-201 Ninth, tire Board is not convinced that the directors of [the WMPA] serve without pay and without a pecuniary interest in the medical clinic. Testimony indicated that all of the directors of [the WMPA] are physicians, some of whom see patients in the medical clinic. Physicians who see patients at [the Center] are full time faculty members of the Kansas University Medical School and, also, are considered employees of [the WMPA], Thus; they receive two checks: one from the University of Kansas and the other from [the WMPA]. [The WMPA] collects fees from [the Center] for the physicians’ time pursuant to contractual agreement. Although it is clear that the contractual fees collected are not distributed directly to the physicians, the fees become part of [the WMPA]'s operating revenue from which the physicians’ [the WMPA] salaries aré derived. Thus, though not directly, those directors of [the WMPA] who are physicians working in the clinic receive pay for their services, thereby giving them a pecuniary interest in the operation of the medical clinic.”
BOTA also noted that it was not convinced that the WMPA was organized for the purpose of providing humanitarian services as required by K.S.A. 79-201 Ninth (d). BOTA stated that one of the original purposes of the WMPA was to provide a way for physicians teaching at the school to supplement their salaries and that this purpose “cannot be ignored by the Board in its determination whether the subject property qualifies for an exemption.”
Finally, BOTA determined that while the Center was physically using the property, the WMPA was also using the property by leasing it, which generated revenue. According to BOTA, while there was testimony that the revenue was used for humanitarian purposes, the evidence was not sufficient to allow it to determine whether the purposes for which the money was used qualified as humanitarian services as required by K.S.A. 79-201 Ninth (e).
District Court
On petition for judicial review, the district court agreed with BOTA, although for different reasons. The court determined that K.S.A. 79-201 Ninth was “ambiguous as to whether the ‘owned and operated’ requirement refers to the property or to the community services organization or both.” The actual language of this provision is: “All real property and tangible personal property.actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services, which is owned and operated by a corporation organized not for profit.” Applying strict construction, the court concluded that in order to qualify for the exemption the legislature intended to require a corporate property owner to dedicate the use of the property to providing humanitarian services and to also be the humanitarian service provider on the exempt property. The district court reasoned that if the legislature had intended otherwise, the disjunctive “or” could have been placed between “owned” and “operated.”
Like BOTA, the district court, relying upon earlier decisions of this court interpreting Kansas constitutional and statutory tax exemptions requiring that the property be “exclusively used” for an expressed constitutional or statutory purpose, applied strict construction. With the exception of considering the expressed statutory language of the new provisions contained in'K.S.A. 79-201 Ninth, the district court gave little, if any, consideration in its order denying the exemption to the fundamental rule of statutory construction that the intent of the legislature, where it can be ascertained, governs the construction of the statute, and it is the function of the court to interpret a statute to give it the effect intended by the legislature.
Relying upon past precedent from this court concerning the constitutional and statutory conditions for the exemption of property “exclusively used” for charitable purposes, the district court noted that the renting of property constitutes a simultaneous use of the property by the lessor and lessee which would bar a claim of ex- elusive use for exempt purposes. “Renting property is a nonexempt use of the property.” See Board of Wyandotte County Comm’rs v. Kansas Ave. Properties, 246 Kan. 161, 786 P.2d 1141 (1990); In re Board of Johnson County Comm’rs, 225 Kan. 517, 592 P.2d 875 (1979). The district court, in looking at the humanitarian services exception, stated that the substantial rent received by the WMPA would certainly preclude the renting of the property from constituting a “nonexempt purpose which is minimal in scope and insubstantial in náture,” as allowed by K.S.A. 79-201 Ninth (e).
In holding, that the WMPA rental of the property to the Center did not qualify as a humanitarian service, the court concluded:
“A review of the record does not reveal sufficient evidence from which BOTA or the Court can determine the scope of the [WMPA]’s programs and activities, its financial structure, the establishment and reasonableness of the compensation paid to its member doctors, to analyze its books and records which might show the accrual of profits or weigh the humanitarian services it provides against its other non-exempt activities, if any, besides purchasing and renting real estate. While providing health care is generally considered humanitarian, neither the BOTA nor the courts are required to accept that the [WMPA] is per se a humanitarian organization for purposes of a property tax exemption because its members are doctors and because it provides medical services as part of its business activities.”
Thus, the district court affirmed BOTA’s denial of the exemption.
Standard of Review
BOTA is a state agency, and under K.S.A. 74-2426(c), it is subject to judicial review under the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 etseq. In reviewing a decision of BOTA, this court makes the same review as the district court in its review of BOTA’s final order. Under K.S.A. 77-621(c), this court may grant relief if it determines:
“(1) The agency action, or the statute, or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied;
“(2) the agency has acted beyond the jurisdiction conferred by any provision of law;
“(3) the agency has not decided an issue requiring resolution;
“(4) the agency has erroneously interpreted or applied the law;
“(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure;
“(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification;
“(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported by evidence that is substantial when viewed in light of the record as a whole, which includes the agency record for judicial review, supplemented by any additional evidence received by the court under this act; or
“(8) the agency action is otherwise unreasonable, arbitran' or capricious.”
The resolution of this appeal involves the interpretation of K.S.A. 79-201 Ninth. “Interpretation of a statute is a question of law, and this court’s review is unlimited.” Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998). BOTA is a specialized agency that exists to decide taxation issues, and its decisions should be given great weight and deference when it is acting in its area of expertise. However, if we find that BOTA’s interpretation is erroneous as a matter of law, we will take corrective steps. In re Tax Appeal of Boeing Co., 261 Kan. 508, 515, 930 P.2d 1366 (1997).
As noted above, the fundamental rule of statutoiy interpretation is that the intent of the legislature, where it can be ascertained, governs the construction of the statute, and it is the function of the court to interpret a statute to give it the effect intended by the legislature. See In re Tax Exemption Application of City of Wichita, 255 Kan. at 842. The rule of strict construction is subservient to the fundamental rule of statutory construction which requires that the intent and purpose of the legislature govern. In re Tax Appeal of Collingtvood Grain, Inc., 257 Kan. at 246.
“ ‘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.’ [Citation omitted.]” KPERS v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 643-44, 941 P.2d 1321 (1997).
When a statute is plain and unambiguous, a court must give effect to the intention of the legislature as expressed, rather than determine what the law should or should not be. Martindale v. Tenny, 250 Kan. 621, Syl. ¶ 2, 829 P.2d 561 (1992). However, where the face of the statute leaves its construction uncertain, the court may properly look into 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 constructions suggested. Bd. of Sedgwick County Comm’rs v. Action Rent to Own, Inc., 266 Kan. 293, Syl. ¶ 3, 969 P.2d 844 (1998); Brown v. U.S.D. No. 333, 261 Kan. 134, 142, 928 P.2d 57 (1966); Director of Taxation v. Kansas Crude Oil Reclaiming Co., 236 Kan. 450, 458, 691 P.2d 1303 (1984).
The provisions of K.S.A. 79-201 set forth the property to be exempted from taxation in Kansas. K.S.A. 79-201 Ninth, a subsection of K.S.A 79-201 enacted in 1988, created a new exemption and has never been interpreted by this court. L. 1988, ch. 373, § 1. BOTA acknowledged it lacked guidance from the courts in its effort to define substantial and predominant use under the new amendment. The trial court found the provisions of K.S.A. 79-201 Ninth ambiguous as to whether the owner claiming the exemption must also be the one operating on the property to obtain the exemption. Because the face of K.S.A. 79-201 Ninth leaves its construction uncertain, we consider the historical background of all the provisions of K.S.A. 79-201, as well as the circumstances attending passage of the statute, the purpose to be accomplished by the amendment, and the effect the statute may have under the constructions employed by BOTA and the district court.
Historical Background
The Kansas Constitution, Art. 11, § 1(b) (1998 Supp.) provides:
“All property used exclusively for state, county, municipal, literary, educational, scientific religious, benevolent and charitable purposes, farm machinery and equipment, merchants’ and manufacturers’ inventories, other than public utility inventories included in subclass (3) of class 2, livestock, and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.”
Our constitution does not impose express limits on the legislative power to grant other tax exemptions. From the earliest days of the legislative assembly of the territory of Kansas, certain property was by statute declared exempt from property tax. See 1855 Laws of the Kansas Territory, ch. 137, § 2 (exempting such property as churches, hospitals, and cemeteries provided.that the property is used for that purpose only).
Over the years, based upon our constitution and statutes exempting property used exclusively for the expressed statutory purpose, several well-recognized principles and rules of construction have evolved:
(1) Taxation is the rule; exemption is the exception. All doubts are to be resolved against exemption and in favor of taxation.
(2) Constitutional and statutory provisions exempting property from taxation are to be strictly construed. Lutheran Home, Inc. v. Board of County Commissioners, 211 Kan. 270, 275, 505 P.2d 1118 (1973); In re Board of Johnson County Comm'rs, 225 Kan. 517, 519, 592 P.2d 875 (1979).
(3) The burden of establishing exemption from taxation is.on the one claiming it. Seventh Day Adventist v. Board of County Commissioners, 211 Kan. 683, 690, 508 P.2d 911 (1973).
(4) The question is not whether or not the property is used partly or even largely for the purpose stated in the exemption provisions, but whether it is used exclusively for those proposes. Clements v. Ljungdahl, 161 Kan. 274, 167 P.2d 603 (1946); In re Board of Johnson County Comm'rs, 225 Kan. at 519.
(5) The phrase “used exclusively” in the constitution and statutes means that the use made of the property sought to be exempted from taxation must be only, solely, and purely for the.purposes stated, and without participation in any other use. Seventh Day Adventist v. Board of County Commissioners, 211 Kan. at 683.
It is important to note that prior to 1969, statutory property exemptions were based upon ownership and use. Kansas statutory law incorporated 14 real property tax exemptions, which fell into three categories: exemptions for certain residences, exemptions for property based upon ownership, and exemptions for property based upon use. See Comment, Liberalizing Kansas Real Property Tax Exemptions: The 1988 Legislation, 37 Kan. L. Rev. 597 (1989). Examples of exemption statutes based on use included exemptions for property used exclusively as places of public worship, public schoolhouses, graveyards, as well as property exclusively.used for literary, educational, scientific, religious, benevolent, or charitable purposes. Examples of exemptions based on ownership included property owned or leased by certain governmental, charitable, or benevolent organizations. See 37 Kan. L. Rev. at 598-600.
In 1968, the legislature formed a special joint committee known as the Hodge committee to perform a comprehensive study of property tax exemption statutes. The Hodge committee determined that “wherever possible exemptions should be on the basis of the State Constitution” and “taxation should be the rule and exemption should be the exception.” Joint Committee on the State Tax Structure, Interim Report to the Kansas Legislature, Sen. J. 1969, pp. 104, 132-33; see 37 Kan. L. Rev. at 600. The Hodge committee recommended that exemptions not constitutionally based be repealed, including those exemptions based on property ownership. See Sen. J. 1969, pp. 132-35. An important factor in this recommendation was that many of the organizations whose specific statutoiy exemptions would be repealed based upon ownership testified that their organization would continue to qualify for exemption under the exclusive use requirements in the constitution. See Sen. J. 1969, pp. 128-29, 133-35.
The 1969 legislature adopted the Hodge committee’s recommendations. Property tax exemptions for parsonages, residences of chaplains of hospitals operated by religious orders, property of endowment associations, property used to house faculty and students of denominational colleges, and lands used as shelterbelts, as well as exemptions for public libraries, property of not-for-profit hospital and medical insurance corporations, real estate owned or leased by veterans organizations, and property belonging to the YMCA, YWCA, Boy Scouts, Girl Scouts, and Campfire Girls were repealed. See L. 1969, ch. 429, § 1; 37 Kan. L. Rev. at 601.
In 1973, this court in Lutheran Home, Inc. v. Board of County Commissioners, 211 Kan. 270, 505 P.2d 1118 (1973), adopted a narrow definition of the meaning of “charitable” as used in the Kansas Constitution property tax exemption statutes. The decision had a profound effect on tax exemptions in this state. Highly summarized, the facts in that case established that Lutheran Home, Inc., was a Kansas not-for-profit corporation not affiliated or supported by any religious body. Its predecessor corporation operated a nursing home made possible through the issuance of first mortgage bonds. When the corporation became insolvent, two private citizens, holders of about $45,000 in bonds, took over its operation and incorporated as a not-for-profit, nonstock corporation. The nursing home continued to operate and over a few years paid off the first mortgage bonds originally contracted for by the predecessor corporation. Residents of the nursing home were charged monthly rates for services which were paid either from their own or family funds or by welfare. Lutheran Home, Inc., charged the same as other nursing facilities in the county.
Lutheran Home, Inc’s., articles of incorporation provided:
“ ‘It is the intent and purpose of this corporation and its Trustees that all services rendered and functions performed by the corporation except those rendered and performed for the United States or-for any of its agencies, shall, at all times be handled on a cost of doing basis and without income or profit to the corporation or to its members as such, in order that any and all amounts received by the corporation from or in connection with, such services or functions, over and above the cost thereof to the corporation, shall at all times, belong to and be the exclusive property of the corporation.’ ” 211 Kan. at 273.
The question before this court was whether the nursing home was being used for charitable or benevolent purposes, qualifying it for property tax exemption. In defining “charitable and benevolent,” this court stated:
“We have reconsidered all of the Kansas decisions along with cases from other jurisdictions. We have concluded that the concept of ‘charity’ as set forth in Mason v. Zimmerman, [81 Kan. 799, 106 Pac. 1005 (1910)], should be applied in this case and in future litigation in this state. In Mason we said that ‘charity’ is a gift to promote the welfare of others in need, and ‘charitable,’ as used in the constitutional and statutory provisions, means intended for charity. In this sense charity involves the doing of something generous for other human beings who are unable to provide for themselves. To have charity there must be a gift from one who has to one who has not. Unless there is a gift, there can be no charity.” 211 Kan at 277.
We commented:
“We recognize that this construction of the word ‘charity’ is more restrictive than the liberal construction given the term in Topeka Presbyterian Manor v. Board of County Commissioners, [195 Kan. 90, 402 P.2d 802 (1965)], and Evangelical Village & Bible Conference, Inc. v. Board of County Commrs., [207 Kan. 383, 485 P.2d 343 (1971)]. We believe, however, that such an interpretation is more fully in accord with the intent of the framers of the Kansas Constitution as expressed in article 11, section 1 and the intent of the legislature as set forth in K.S.A. 79-201. In view of the strict construction adopted here we, of necessity, overrule Topeka Presbyterian Manor v. Board of County Commissioners, supra; Evangelical Village & Bible Conference, Inc. v. Board of County Comm’rs., supra, and other decisions of this court contrary to our holding here.” 211 Kan. at 278.
This court concluded that although it was possible that Lutheran Home, Inc., was altruistically motivated and served a socially constructive purpose, the fact that it was substantially compensated for its services brought it outside the narrow definition of charity which the court adopted and, thus, made it ineligible for tax exemption. 211 Kan. at 279.
The 1974 legislature responded to our decision in Lutheran Home by amending K.S.A. 79-201 to add exemptions for real properly used exclusively for adult care homes operated by not-for-profit corporations, real property used exclusively by not-for-profit corporations for housing elderly persons having a limited or lower income, and real property used exclusively by other not-for-profit corporations for housing elderly persons, as well as exemptions for real property used exclusively by hospitals or psychiatric hospitals operated by not-for-profit corporations for hospital purposes, and for real property used exclusively for private children’s homes operated by not-for-profit corporations. L. 1974, ch. 427, § 1. See 37 Kan. L. Rev. at 602. Between 1974 and 1985, the Kansas Legislature added a number of other exemptions. While these exemptions continued to require exclusive use of the property for the purpose specified, many of the exemptions also focused on the status of the owner or user of the property. 37 Kan. L. Rev. at 603-04.
In 1986, the legislature made a substantial move away from the requirement that “exclusive use” be the determining factor for tax exemption under K.S.A. 79-201. The legislature also rejected this court’s narrow definition of “charitable and benevolent” in Lutheran Home. Under the 1986 amendments to K.S.A. 79-201, real property used exclusively for literary, educational, scientific, religious, benevolent, or charitable purposes continued to be tax exempt. The statute further provided:
“This exemption shall not be deemed inapplicable to property which would otherwise be exempt pursuant to this paragraph because an agency or organization: (a) Is reimbursed for the provision of services accomplishing the purposes enumerated in this paragraph based upon the ability to pay by the recipient of such services; or (b) is reimbursed for the actual expense of using such property for purposes enumerated in this paragraph;.or (c) uses such property for a nonexempt purpose which is minimal in scope and insubstantial in nature if such use is incidental tó the exempt purposes of this paragraph; or (d) charges a reasonable fee for admission to cultural or educational activities or permits the use of its property for such activities by a related agency or organizations, if any such activity is in furtherance of the purposes of this paragraph.” L. 1986, ch. 369, § 1.
The 1986 amendments departed from this court’s strict definition of “charitable and benevolent” in Lutheran Home, as well as expanded the exemption beyond what had been limited by the exclusive use test. At the same time, K.S.A. 79-201 Second continued to deny an exemption where the property was not actually used or occupied for the specific statutory purposes and where “such property [was] held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes.” K.S.A. 79-201 Second.
In 1987, the YMCA sought a tax exemption for its property in Shawnee County under K.S.A. 79-201 Second on the grounds that the property was used exclusively for charitable, educational, scientific, religious, and benevolent purposes. See In the Matter of the Application of Young Mens Christian Association for Exemption from Ad Valorem Taxation in Shawnee County, Kansas, BOTA docket No. 6285-86-TX. BOTA found, however, that the YMCA, although providing valuable services to its members, did so in large part in exchange for fees paid by the members rather than for charitáble purposes as contemplated in Lutheran Home. As a result, BOTA concluded that the YMCA’s use of the property for charitable purposes was merely incidental to its use of the property for business purposes. Further, BOTA found that the YMCA owned some property for investment purposes, a use expressly prohibited by K.S.A. 79-201 Second. This BOTA decision and other decisions like it set the stage for passage of K.S.A. 79-201 Ninth, the provisions of which we interpret in this opinion.
Circumstances attending passage of K.S.A. 79-201 Ninth.
K.S.A. 79-201 Ninth was adopted largely in response to BOTA’s decision in the YMCA case which required that property be used “exclusively” for charitable, educational, scientific, or religious purposes. See Testimony of James McBride, United Way of Greater Topeka, before the Senate Assessment & Taxation Committee, March 15,1988; Testimony of Robert J. O’Connor before the Senate Assessment & Taxation Committee, March 16, 1988. K.S.A. 79-201 Ninth provides, under certain circumstances, an exemption for property actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services.
The legislative history of K.S.A. 79-201 Ninth reflects several features that were included in the bill in response to BOTA’s YMCA decision as well as other BOTA decisions and this court’s decision in Lutheran Home. First, the bill expansively defined the term “humanitarian purposes” in contrast and in response to the very narrow interpretation of the term “charitable and benevolent purposes” in K.S.A. 79-201 Second adopted by this court in Lutheran Home. See Testimony of Robert J. O’Connor (“The first feature of House Bill 2651 is that it defines the ‘humanitarian services’ exemption category. This is necessary because of the narrow interpretation of Lutheran Home which the BOTA has recently been using.”).
Second, K.S.A. 79-201 Ninth expressly failed to include the following language that had been included in K.S.A. 79-201 Second:
“This exemption shall not apply to such property, not actually used or occupied for the purposes set forth herein, nor to such property held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes.” (Emphasis added.) K.S.A. 1986 Supp. 79-201 Second.
See Testimony of Robert J. O’Connor (K.S.A. 79-201 Ninth “eliminates the new definition and application of ‘investment income’ which the BOTA has recently created, and which it has used to deny traditional exemptions to most of those organizations which have lost their exemption in recent years.”).
Finally, K.S.A. 79-201 Ninth abandoned the “exclusive use” requirement of earlier exemptions in favor of the provision that the property be used for the “predominant purpose” of providing humanitarian services in addition to allowing the incidental use of the property for a nonexempt purpose which is “minimal in scope and insubstantial in nature.” K.S.A. 79-201 Ninth (e). See 37 Kan. L. Rev. at 605. However, the legislature, out of concern that such organizations might take advantage of the exemption to amass nontaxable properties, provided a number of conditions for exemption which will be discussed below. See K.S.A. 79-201 Ninth (a) through (g); Testimony of Robert J. O’Connor before the Senate Assessment & Taxation Committee, March 16, 1988.
The purpose to be accomplished.
K.S.A. 79-201 Ninth represents a major shift in policy by our legislature. The purpose of the legislature in adopting K.S.A. 79-201 Ninth was to expand but limit property exemption to “property actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services.” To that end, K.S.A. 79-201 Ninth contains several conditions designed to prevent potential abuse. Key factors that must be considered in determining whether exemption is granted are the predominant use as opposed to exclusive use of the property, the nature of the owner of the property as well as the use of the property, and whether the property is being used for the predominant purpose of providing humanitarian services as defined in the statute.
K.S.A. 79-201 Ninth.
BOTA and the district court analyzed the statutory requirements of K.S.A. 79-201 Ninth from the perspective of the WMPA, the owner-lessor of the property. We will do the same. However, under the particular facts of this case, we believe that it is also important to consider the conditions set forth in K.S.A. 79-201 Ninth from the perspective of the Center. Our ultimate resolution of whether the WMPA is entitled to an exemption depends upon whether the property as owned and operated is actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services. We, therefore, consider the totality of circumstances involved in the requested exemption, including the actual and regular use of the property claimed as exempt.
The threshold requirement — owned and operated by a not-for-profit corporation.
The exemption of K.S.A. 79-201 Ninth applies to:
“[a]ll real property and tangible personal property actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services, which is owned and operated by a corporation organized not for profit under the laws of the state of Kansas or by a corporation organized not for profit under the laws of another state and duly admitted to engage in business in this state as a foreign not-for-profit corporation if. . . (Emphasis added.)
BOTA found that the WMPA was the “corporation” to which K.S.A. 79-201 Ninth refers and that the WMPA was the owner and operator of the medical clinic. It, therefore, analyzed the statutory provisions only with respect to the WMPA. However, this threshold requirement was a sticking point for the district court. It noted that while the clinic property was owned by the WMPA, it was operated by the Center. In analyzing the above statutoiy provisions the district court concluded: “The statute is ambiguous as to whether the ‘owned and operated’ requirement refers to the property or to the community services organization or both.”
The district court concluded that in order to qualify for the exemption, the legislature intended that the owner corporation must also be the humanitarian service provider. The trial judge noted: “If unity of ownership and providing humanitarian services at the subject property was not intended by the legislature the disjunctive ‘or’ could have been placed between ‘owned’ and ‘operated.’ ” We disagree.
The phrase “owned and operated” was added to K.S.A. 79-201 Ninth by amendment in 1989, replacing the term “operated.” See L. 1989, ch. 288, § 1. At first glance, this would seem to reflect an intention by the legislature that the entity owning the property must be the entity operating the property. However, research into the circumstances surrounding the 1989 amendment to K.S.A. 79-201 reveals that this is not the case.
Instead, the 1989 amendment was designed as part of a comprehensive attempt to prevent a situation wherein an entity that was not tax exempt would lease property to a tax exempt entity for a profit and thereby gain a tax benefit. See Minutes of the Senate Committee on Assessment and Taxation, March 30,1989 and April 5, 1989. Thus, while the legislature’s intent was to keep a nonexempt entity from gaining an exemption simply by leasing to an exempt entity, there is no expressed intent that the property be owned and operated by the same entity.
Moreover, the provisions of K.S.A. 79-201 Second exempting property actually and regularly used exclusively for literaiy, educational, scientific, religious, benevolent, or charitable purposes expressly prohibited tax exemption where “such property [was] held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes.” The legislature did not include this prohibition in enacting K.S.A. 79-201 Ninth, which suggests that leasing under limited circumstances is permitted and unity of ownership is not a condition for exemption under K.S.A. 79-201 Ninth.
Use of the conjunctive “and” instead of “or” and use of “corporation” through the provisions of K.S.A. 79-201 Ninth does not in our opinion indicate an intent by the legislature to require that the entity owning the property must be the entity operating the property in order to qualify for exemption. What is required is that the property actually and regularly be used by a community service organization for the predominant purpose of providing humanitarian services and that it be owned and operated by a not-for-profit corporation. We conclude that the provisions of K.S.A. 79-201 Ninth do not require a unity of ownership to qualify for tax exemption.
There is no question in this case that both the WMPA and the Center are not-for-profit corporations organized under the laws of the state of Kansas. Nor is there any question that the property claimed as exempt is “actually and regularly used by a community service organization.” K.S.A. 79-201 Ninth.
While other states’ interpretation of their exemption statutes are of limited value, we note that the recent trend in the United States is consistent with our decision that ownership and operation need not coincide in a single legal entity to qualify for tax exemption. See, e.g., United Way v. Douglas Co. Bd. of Equal., 215 Neb. 1, 5-6, 337 N.W.2d 103 (1983); Sisters of Charity, Etc. v. County of Bernalillo, 93 N.M. 42, 45, 596 P.2d 255 (1979), and cases cited therein at 257.
K.S.A. 79-201 Ninth (a) — Do the directors of the corporation serve without pay for such services?
K.S.A. 79-201 Ninth (a) requires that the directors of the corporation seeking the exemption serve without pay for such services. This requirement was not addressed by the district court, but BOTA found that because some of the directors of the WMPA also saw patients at the Center and received payment from the WMPA for doing so, this requirement was not satisfied.
The plain language of K.S.A. 79-201 Ninth (a) requires that the directors serve without pay for such services. According to the express language, the directors of the corporation may not be compensated for their services as directors. The evidence before BOTA established that those physician members of the WMPA board who treated patients at the Center were compensated in an amount equal to 7½% of their state salary. There is not evidence that they were compensated for their services as directors. We conclude that under the plain language of the statute, both the WMPA and the Center satisfy the provisions of K.S.A. 79-201 Ninth (a).
K.S.A. 79-201 Ninth (b) — Is the corporation operated in a manner which does not result in the accrual of distributable profits, realization of private gain resulting from the payment of compensation in excess of a reasonable allowance for salary or other compensation for services rendered or the realization of any other form of private gain?
Neither BOTA nor the district court found a problem with the WMPA or the Center’s compliance with subsection (b). The evidence establishes that both the WMPA and the Center operate in a manner which does not .result in the accrual of distributable profits or the realization of private gain resulting from payment of compensation in excess of a reasonable allowance for salary. The WMPA and the Center satisfy K;S.A. 79-201 Ninth (b).
K.S.A. 79-201 Ninth (c) — Do any officers, directors, or members of such corporation have a pecuniary interest in the property for which exemption is claimed?
BOTA concluded that the directors of WMPA had a “pecuniary interest in the property for which the exemption is claimed.” BOTA reasoned that some of the directors of the WMPA who are physicians work in the Center clinic and are compensated for their services by the WMPA. While they are not paid directly by the Center, the Center contracts with the WMPA for their services, and the Center, out of its budget, pays the WMPA, which in turn pays the physicians. Thus, according to BOTA, the directors of the WMPA, by receiving compensation indirectly through the Center, have a “pecuniary interest in the operation of the medical clinic.”
K.S.A. 79-201 Ninth does not define the phrase “pecuniary in- • terest in the property.” BOTA mentions “a pecuniary interest in the medical clinic.” However, the express provisions of K.S.A. 79-201 Ninth (c) provide “any pecuniary interest in the property for which exemption is claimed.” The record is devoid of any evidence establishing that any officer, director, or member of either the WMPA or the Center had a pecuniary interest in the free standing clinic and parking area operated by the Center. We believe that this subsection is designed to prevent officers, directors, or members of the corporation claiming an exemption from individually profiting from the tax exempt status of property in which they have a pecuniary interest. While there may be an indirect way of violating the provisions of this subsection, reasonáble compensation paid to the directors of the WMPA for services rendered to the Center in treating patients of the Center does not, in our opinion, constitute a pecuniary interest in the property.
It should be further noted that the amount of compensation paid by the WMPA to physicians in this case is minimal at best. For their services at the Center, each physician receives 7½% of his or her state salary. This compensation may in no way be considered unreasonable. We have in the past recognized that charitable institutions such as hospitals and clinics must for continued existence employ professional help and pay for the same. In St. Francis Regional Med. Center, Inc. v. Weiss, 254 Kan. 728, 869 P.2d 606 (1994), we dealt with the question of whether Kansas law prohibited a licensed hospital from contracting for a physician to render services to patients because the hospital itself could not render such medical services. After a circumspect review of existing authority, we concluded:
“[T]he legislature by statute and this court by decision have acknowledged what is and has been a reality for decades — hospitals employ physicians. Without physicians, nurses, and medical technicians, a hospital cannot achieve that for which it is created and licensed — to treat the sick and injured. To conclude that a hospital must do so without employing physicians is not only illogical but ignores reality.” 254 Kan. at 745.
This court has also concluded in the distant past that the payment of ordinary and necessary operating expenses in not inconsistent with charitable purpose. In Nuns of St. Dominic v. Younkin, 118 Kan. 554, 235 Pac. 869 (1925), this court rejected the argument that nuns owning the hospital and securing room, board, and lodging as a result of revenues from “pay patients” rendered a hospital ineligible for exemption:
“If these incomes from pay patients and donations are used for the purpose of caring for or relieving the sick or disabled and increasing the facility of the institution for that purpose, and are not used for the purpose of declaring dividends or the financial profit (other than the paying of necessary operating expenses) of those connected with or having charge of the institution, such use is simply an extended use for charitable purposes.” 118 Kan. at 559-60.
We conclude that the salaries paid by the WMPA to physicians staffing the Center do not create a pecuniary interest in the property claimed as exempt under K.S.A. 70-201 Ninth. While the directors of the WMPA who serve as physicians in the clinic may have an interest in the continued operation of the Center, such an interest is not a pecuniary interest in the property itself.
K.S.A. 79-201 Ninth (d) — Is the corporation organized for the purpose of providing humanitarian services?
There is no dispute that the Center is organized for the purpose of providing humanitarian services. However, BOTA concluded that the WMPA did not satisfy this requirement, reasoning:
“With respect to requirement (d) of K.S.A. 1995 Supp. 79-201 Ninth, the Board is not convinced that the corporation is organized for the purpose of providing humanitarian services. It was elicited from Mr. Hanson that, in his opinion, one of the purposes of organizing medical practice associations was to supplement the salaries of physicians who teach at the Kansas University Medical School. Although this intent is not designated in the Articles of Incorporation for [the WMPA] as a purpose for which the corporation was formed, the payment from [the WMPA] to physicians who are faculty of the Kansas University Medical School for their time in the clinic cannot be ignored by the Board in its determination whether the subject property qualifies for an exemption.”
The district court observed only that “the record is insufficient to establish that the [WMPA] qualifies as a humanitarian services provider under this statute.”
K.S.A. 79-201 Ninth (d) requires that “the corporation is organized for the purpose of providing humanitarian services.” K.S.A. 79-201 Ninth defines the term “humanitarian services” to mean
“the conduct of activities which substantially and predominantly meet a demonstrated community need and which improve the physical, mental, social, cultural or spiritual welfare of others or the relief, comfort or assistance of persons in distress or any combination thereof including but not limited to health and recreation services, child care, individual and family counseling, employment and training programs for handicapped persons and meals or feeding programs.”
The evidence presented by the administrator did establish that one of the purposes at the time the WMPA was set up was to provide a salaiy for teaching physicians at the University. However, it is clear from its articles of incorporation thát one of the WMPA missions is to instruct and train students. Without continued practice in the delivery of primary care by teachers at the medical school, it would be difficult if not impossible to accomplish this teaching mission.
The WMPA charter provides that its purpose is to
“engage in the continuous active conduct of medical education, medical research and medical care primarily in space located within the University of Kansas School of Medicine — Wichita in conjunction with and utilizing the facilities of such School of Medicine (including equipment, case studies, etc.) on acontinuingbasis. The principal purposes or functions of the corporation shall include the instruction and training of students, undergraduate, graduate and postgraduate, enrolled in the University of Kansas School of Medicine — Wichita Medical Practice Association pursuing a course of medical education offered by the University of Kansas, the conduct of investigations, research, experiments and studies to discover, develop or verify knowledge relating to the causes, diagnosis, treatment and the prevention or control of physical or mental diseases and impairments to man and the providing of medical care through its professional staff performing clinical services.”
The purposes for which the WMPA is organized fall within the statutory definition of “humanitarian services.” Its teaching mission as well as its purpose of “providing of medical care through its professional staff performing clinical services” could not be accomplished without the payment of a salary to physician-teachers who staff the WMPA and Center primary care clinics. K.S.A. 79-201 Ninth does not require that the purpose for which the corporation is founded be “exclusively” humanitarian. The mission of the WMPA, which we conclude is predominantly a humanitarian one, is limited by its articles of incorporation, the laws of the State of Kansas, and the Internal Revenue Code § 501(c)(3) to “charitable, educational or scientific purposes.”
Both BOTA’s finding and that of the district court are contrary to the evidence. We conclude that the uncontroverted evidence establishes that the WMPA is organized for the purpose of providing humanitarian service and thus satisfies the provisions of K.S.A. 79-201 Ninth (d).
K.S.A. 79-201 Ninth (e) — Is the actual use of the property substantially and predominantly related to the purpose of providing humanitarian services?
K.S.A. 79-201 Ninth requires that in order to qualify for exemption the property must be “actually and regularly used by a community service organization for the predominant purpose of pro viding humanitarian services.” Subsection (e) reiterates this requirement as a condition for exemption and provides:
“(e) [T]he actual use of property for which an exemption is claimed must be substantially and predominantly related to the purpose of providing humanitarian services, except that, the use of such property for a nonexempt purpose which is minimal in scope and insubstantial in nature shall not result in the loss of exemption if such use is incidental to the purpose of providing humanitarian services by the corporation.”
BOTA and the district court concluded that the WMPA did not meet the requirements even though the real property is “actually and regularly used [by the Center] for the predominant purpose of providing humanitarian services.” BOTA and the district court determined that the WMPA use of the property included a nonexempt use of income from the lease which was not “minimal in scope and insubstantial in nature” as required by K.S.A. 79-201 Ninth (e).
BOTA and the district court rely on past decisions by this court wherein it was determined that the leasing of property produces income for the lessor and constitutes a simultaneous use which may result in denial of a request for tax exemption. In Board of Wyandotte County Comm’rs v. Kansas Ave. Properties, 246 Kan. 161, 168, 786 P.2d 1141 (1990) (citing In re Board of Johnson County Comm’rs, 225 Kan. 517, 592 P.2d 875 [1979]), this court noted:
“ ‘To say that an investor who owns valuable property, real or personal, and leases it for profit is not using his property ignores the obvious fact that the owner-lessor is exercising his right to use the property just as surely as if he were utilizing it in a physical sense for his own objectives. . . . The renting by the lessor and the physical use by the lessee constitute simultaneous uses of the property and when an owner leases his property to another, the lessee cannot be said to be the only one using the property. The owner is using it as he sees fit to reap a profit from his investment just as surely as if he physically operated the property.
“We hold that property owned by a non-tax-exempt entity and leased for profit to a qualifying tax-exempt entity, is not being used exclusively for tax-exempt proposes and is subject to ad valorem and property taxes.’ 225 Kan. at 522-23.”
We must observe that the above cases, including the cases cited by BOTA and the district court, were interpreting an exemption under K.S.A. 79-201 Second. The test under that statute, unlike K.S.A. 79-201 Ninth, is one of “exclusive use.” It must also be noted that in the above cases relied on by BOTA and the district court, unlike the case we deal with here, the lessor was a private individual, not a tax exempt not-for-profit corporation. See Board of Wyandotte County Comm’rs v. Kansas Ave. Properties, 246 Kan. at 162. Moreover, we observe that K.S.A. 79-201 Second, unlike K.S.A. 79-201 Ninth, specifically provides that no exemption would be allowed where such property is held or used as an investment even though “the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes.” K.S.A. 79-201 Ninth, on the other hand, specifically provides that the use of the property for a nonexempt purpose which is “minimal in scope and insubstantial in nature shall not result in the loss of exemption if such use is incidental to the purpose of providing humanitarian services by the corporation.” We note that the threshold requirement of subsection (e) is that the actual use of property for which an exemption is claimed must be substantially and predominantly related to the purpose of providing humanitarian services. However, the observations made by the district court and BOTA are valid and must be resolved by this court.
The WMPA acquired the property for the express purpose of using it to house the clinic operated by a new, separate corporation, the Center. The rent in this case was set by the WMPA at below fair market value. The lease provides for a payment of $8.25 per square foot, while the evidence established fair market value to be $10-$12 per square foot. Twenty-two percent to 23% of the rental income earned is used by the WMPA for the operation and maintenance of the property. The remaining 78% goes into the budget of the WMPA. The only evidence of record is that this balance either goes into the WMPA reserves to be utilized as needed for sustaining the WMPA during periods of financial hardship where revenues collapse and expenses continue, or is used in furtherance of the humanitarian services that the WMPA provides.
This question, while difficult under the facts of this case, must be resolved in accord with the fundamental rule of statutory construction that the intent of the legislature, when it may be ascertained govern. We believe that the legislature intended by the adoption of K.S.A. 79-201 Ninth that an exemption be granted under the particular facts of this case. The following observations support this interpretation:
First, we have concluded that both the WMPA and the Center are corporations organized for the purpose of providing humanitarian services. We also observe that the uncontroverted evidence establishes that both the WMPA and the Center, by reason of their not-for-profit incorporation under Kansas law and their express charter provisions, were not only organized for the purpose of providing humanitarian services as that term is defined in K.S.A. 79-201 Ninth, but are limited by such charter provision to providing “humanitarian services” as defined. Moreover, as noted below, both the WMPA and the Center are corporations exempt from federal income taxation under 501(c)(3) of the Internal Revenue Code, and contributions to each corporation are deductible under the Kansas Income Tax Act.
Second, no part of the income generated by the lease between the WMPA and the Center may inure to the benefit of any private shareholder or individual. And just as important, all of the property of each corporation, including the operating surplus from die lease, is devoted to predominantiy humanitarian services as defined in K.S.A. 79-201 Ninth. While BOTA and the district court expressed concern that there was no detailed accounting of how the surplus rental was used, the uncontroverted evidence of record established that all property of the WMPA and the Center, including the surplus rental income, was “substantially and predominantly related to the purpose of providing humanitarian services.” K.S.A. 79-201 Ninth (e).
Third, we believe it is important that the rent charged by the WMPA is below fair market value. While the surplus is large, setting the rent in the lease below fair market value signals an intent on the part of the WMPA that its predominant motive in the leasing arrangement was not profit. Other evidence of record establishes that from its very conception, the WMPA's purpose in establishing the Center was substantially and predominantly related to the purpose of providing humanitarian services to low income and medically underserved citizens of this state.
Fourth, the legislature, in enacting K.S.A. 79-201 Ninth, contemplated leasing arrangements by not incorporating provisions contained in the statute that previously prohibited exemption where “such property held or used as an investment even though the income or rentals received therefrom is used wholly for such literary, educational, scientific, religious, benevolent or charitable purposes.” K.S.A. 79-201 Second. See Testimony of Robert J. O’Connor before the Senate Assessment & Taxation Committee, March 16, 1988. We conclude that the legislature intended for property owned by the entity seeking an exemption and leased to another entity to be eligible for exemption under certain circumstances. This conclusion is buttressed by a review of the YMCA case decided by BOTA in 1987, which was one of the principal decisions triggering the enactment of K.S.A. 79-201 Ninth. In that case, BOTA noted that many of the YMCA properties, and in particular the Camp Hammond facility, generated income from campers in excess of its operational expenses. In the Matter of the Application of Young Men’s Christian Association for Exemption from Ad Valorem Taxation in Shawnee County, Kansas, BOTA docket No. 6285-86-TX, pp. 4, 12. From this fact, BOTA concluded that the property was an investment specifically prohibited by K.S.A. 79-201 Second. The enactment of K.S.A. 79-201 Ninth signals an intent on the part of the legislature to require a different result under the statute.
Finally, in denying the exemption under the provisions of K.S.A. 79-201 Ninth (e), BOTA and the district court relied upon a well-established principle of statutory construction that tax exemption statutes are to be strictly construed. We agree with this time-honored principle but note that this rule is subservient to the fundamental rule of statutory construction which requires that the intent and purpose of the legislature govern. In re Tax Appeal of Collingwood Grain, Inc., 257 Kan. at 246.
K.S.A. 79-201 Ninth represents a major shift in policy by our legislature, providing for property exemption to property, as in this case, which is actually and regularly used by a community service organization for the predominant purpose of providing humanitarian service. As revealed by our historical analysis of this exemption, we believe that the legislature’s purpose was to encourage the use of property for humanitarian purposes. There is no question that the WMPA and the Center are organized for the purpose of providing humanitarian services. Nor is there any question that the actual use of the property from which an exemption is claimed is substantially and predominantly related to the purpose of providing humanitarian services. Under the particular facts of this case, we conclude that the below-market surplus rental income received by the WMPA is minimal in scope and insubstantial in nature and incidental to the purpose of providing humanitarian services by the WMPA and the Center.
K.S.A. 79-201 Ninth (f) and (g) — Is the corporation exempt from federal income taxation under 501(c)(3) of the Internal Revenue Code and are contributions to the corporation deductible under the Kansas Income Tax Act?
It is undisputed in this case that both the WMPA and the Center are exempt from federal income tax as 501(c)(3) corporations and contributions to both corporations are deductible under the Kansas Income Tax Act. As a result, the requirements of both K.S.A. 79-201 Ninth (f) and (g) are met.
Based upon the totality of circumstances in this case, we conclude that the property is exempt under the provisions of K.S.A. 79-201 Ninth. We hold that where the property for which exemption is claimed is owned and leased by a corporation fulfilling all requirements of K.S.A. 79-201 Ninth to another separate corporation that operates the property and also fulfills all statutory requirements of K.S.A. 79-201 Ninth, exemption is appropriate where it is established that (1) profit was not a dominant motive in the leasing arrangement, (2) any surplus revenue generated by the lease is “substantially and predominantly related to the purpose of providing humanitarian services” as defined by K.S.A. 79-201 Ninth, and (3) the property claimed as exempt is actually and regularly used by a community service organization for the predominant purpose of providing humanitarian services. We, therefore, reverse the district court decision affirming BOTA and reverse the BOTA order denying the exemption.
Reversed.
Abbott, J., not participating.
Marion Chipman, Senior Judge, assigned. | [
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Per Curiam:
This is an original uncontested proceeding in discipline filed by the office of the Disciplinary Administrator against Respondent Kerry D. Howlett, an attorney admitted to the practice of law in the state of Kansas, whose business address is in Kansas City, Kansas.
The facts are not disputed. Respondent did not file exceptions to the hearing panel’s report. Under Rule 212(c) and (d) (1998 Kan. Ct. R. Annot. 236), the report is deemed admitted.
The complaint against Respondent charges him with violations of the Model Rules of Professional Conduct (MRPC) 5.5 (engaging in the unauthorized practice of law) (1998 Kan. Ct. R. Annot. 373) and MRPC 8.4 (misconduct) (1998 Kan. Ct. R. Annot. 386).
The panel unanimously found by clear and convincing evidence:
“2. On December 6, 1996, Respondent was suspended for one year by the Kansas Supreme Court for violating a number of the Model Rules of Professional Conduct [In re Howlett, 261 Kan. 167 (1996)]. The conduct which led to the Respondent’s felony conviction occurred on December 9, 1996. On that date, Respondent agreed to handle a probate case for an individual by the name of Robert White of Olathe, Kansas. Respondent accepted a fee from Mr. White for $1000 to handle an estate case. This conduct occurred three days after Respondent had been suspended from the practice of law and was in direct violation of the Supreme Court opinion suspending Respondent from the practice of law.
“3. On January 20, 1998, Respondent entered a guilty plea to Felony Theft in Case No. 97-CR-449 in the District Court of Johnson County, Kansas. Respondent was sentenced March 10, 1998, to a term of seven months’ imprisonment and granted probation.
“4. On January 20, 1998, Respondent entered a guilty plea to False Impersonation in violation of K.S.A. 21-3824. This offense was a misdemeanor. Respondent was sentenced on March 10, 1998, to a term of six months in the county jail and was granted probation.
“5. According to the transcript of the hearing in which Respondent entered his plea of guilty' to non-person felony theft and misdemeanor false impersonation, Respondent acknowledged the following facts as true:
“ ‘On December 6th of 1996, the defendant, Kerry Howlett, was suspended from the practice of law for one year by the Kansas Supreme Court after a disciphnaiy proceeding was filed. Howlett was given proper notice according to the statutory requirement of the suspension. On January 21, of 1997, Special Investigator, Dave Wood, of the Kansas Office of the Disciplinary Administrator contacted a Mr. Robert White of Olathe, Kansas. White stated that on December 9, 1996, three days after Howlett had been suspended, Mr. White met with Howlett at his law office in Kansas City, Kansas. Howlett agreed to handle a probate case for White involving the accidental death of Mr. White’s father. Howlett told White the fee would be $1000. White reported that on December 12,1996, he met with Howlett at his residence - “his” being White’s residence - in Olathe, Johnson County, Kansas, and gave Howlett a check, number 3239, drawn on Mr. White’s bank account in the amount of $1000 for legal expenses pending the probate case that he believed Howlett was handling for him. At that time, White beheved Howlett was a licensed to practice practicing attorney in the State of Kansas. Based upon Howlett’s representations, Mr. White was unaware that Howlett had been suspended from the practice of law until he was contacted by Mr. Wood in January. Mr. Howlett never filed any papers on behalf of Mr. White’s father’s estate, nor did he return any of the money, the $1000, that he claimed were fees for that case.’
“6. The Disciplinary Administrator sent Respondent a copy of the formal complaint and notice of the hearing to be held in this disciplinary matter by regular mail and certified mail, return receipt requested. The regular mail was not returned to the Disciplinary Administrator. The certified mail was returned to the Disciplinary Administrator, marked as unclaimed after three presentations to Respondent’s last known address ....
“7. Respondent did not respond to the formal complaint or the notice of hearing sent as described in paragraph 5, above, nor did he appear at this hearing in person or by counsel.”
The panel noted several aggravating factors, including prior disciplinary offenses, a pattern of misconduct, and dishonest or selfish motive. There were no mitigating factors. The panel recommended prompt disbarment.
During oral argument, Mr. Hazlett noted that there are currently 16 additional cases pending against Respondent. Most of those cases involve clients who simply seek the return of their files.
Respondent admitted in oral arguments that he in fact received the formal complaint and the notice of hearing, but chose not to attend the hearing. Respondent did not take exception to any portion of the hearing panel’s report and stated that he knew that disbarment was the probable result of his felony conviction. He did request, however, that this court date his disbarment from the date of his suspension, December 6, 1996.
With very few exceptions, this court has imposed either suspension or disbarment as a sanction when an attorney has been convicted of a felony offense. See In re Nelson, 255 Kan. 555, 563, 874 P.2d 1201 (1994) (citing numerous cases of attorney sanctions following felony convictions). Here, the respondent was already suspended when he committed the felony offense. Thus, our course is clear. Respondent must be disbarred.
We hold that the findings and conclusions of the hearing panel are supported by clear and convincing evidence. After a careful review of the record, this court accepts the recommendation of the disciplinary panel that respondent be disbarred. The date of disbarment will be effective as of the date of respondent’s suspension, December 6, 1996.
It Is Therefore Ordered that Respondent Kerry D. Howlett be and he is hereby disbarred from the practice of law in the state of Kansas and his license and privilege to practice law are hereby revoked.
It Is Further Ordered that the date of disbarment will be effective as of December 6, 1996.
It Is Further Ordered that the Clerk of the Appellate Courts strike the name of Kerry D. Howlett from the roll of attorneys licensed to practice law in the state of Kansas, and that Respondent forthwith shall comply with Supreme Court Rule 218 (1998 Kan. Ct. R. Annot. 246).
It Is Further Ordered that this order shall be published in the Kansas Reports and the costs herein be assessed to the Respondent. | [
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The opinion of the court was delivered by
Six, J.:
This is an attorney disqualification case under MRPC 1.9, Conflict of Interest: Former Client (1998 Kan. Ct. R. Annot. 320), and MRPC 1.10, Imputed Disqualification (1998 Kan. Ct. R. An-not. 322). Northwestern Pacific Indemnity Company (NPIC) appeals the disqualification of its trial counsel Cozen and O’Connor of Philadelphia. The district court found an implied attorney-client relationship between a member of that firm and one or more of the plaintiffs here. (NPIC’s Kansas counsel was not disqualified.)
Our jurisdiction is under K.S.A. 20-3017 (a motion by a party to transfer).
The question is: Did the district court err in its disqualification decision?
The answer is, “Yes.”
FACTS
Our background journey requires a brief return to Associated Wholesale Grocers, Inc. v. Americold Corp., 261 Kan. 806, 934 P.2d 65 (1997) (Americold I). Americold I involved lawsuits arising out of a fire in Americold’s 170 acre underground cold storage facility. Americold had primary general liability coverage for tenant claims of $1 million through National Union Fire Insurance Company (National Union), with $25 million excess coverage through NPIC. TIG Insurance Company (TIG) provided $15 million excess coverage to National Union and NPIC. National Union eventually tendered the $1 million policy limit to plaintiffs, who were various tenants and their subrogated insurers, referenced here as Associated Wholesale Grocers, Inc., et al. (Associated).
Although the fire burned only a part of the stored goods, smoke and other contaminants discharged by the fire damaged other goods stored in the facility. NPIC disclaimed coverage, reasoning that the claimed damages were excluded by the policy’s pollution exclusion.
Concluding that NPIC and TIG were denying coverage, Americold negotiated a settlement with Associated. The settlement included consent judgments totalling $58,670,754, a covenant by Associated not to execute against the assets.of Americold, and an assignment of Americold’s claims against its excess insurers, NPIC and TIG. After the settlement, Associated filed a garnishment action against NPIC. The district court granted summary judgment in favor of Associated. We reversed. TIG settled while Americold 1 was on appeal. Material issues of fact remained “as to the good faith and reasonableness of tire settlement amount resulting in the consent judgments, the excess insurer’s bad faith in denial of cov erage and rejection of settlement within the policy limits, and the liability of the excess insurer for the judgments over policy limits.” 261 Kan. 806, Syl. ¶ 15. We held, however, that the pollution exclusion in the NPIC policy did not exclude coverage. 261 Kan. at 811.
Disqualification on Remand
On remand from Americold I, NPIC retained the Cozen and O’Connor firm as counsel. According to NPIC, new counsel was engaged because there was a substantial likelihood that prior counsel would be called as witnesses to answer allegations of insurer bad faith. Associated sought to disqualify Cozen and O’Connor, alleging a member of the firm (Daniel Q. Harrington) had an implied attorney-client relationship with Associated.
Cozen and O’Connor, although not involved in Americold 1, represented two subrogated insurers in federal court with bailment claims against Americold. Associated’s Americold I claims were in state court. Harrington did not name NPIC in his client’s suit against Americold. He settled the bailment claims in 1994, separately from the Associated tenant claims settlement at issue in Americold 1. (Before oral argument in Americold I, NPIC and two of the Associated plaintiffs, Arkwright and Doskocil, filed a joint motion requesting remand to allow the district court to vacate judgments totaling $26,887,191. The remaining Associated plaintiffs objected. We granted the motion. The Arkwright and Doskocil judgments against NPIC were vacated. 261 Kan. at 820.
In early 1993, Associated’s tenant claims in state court and the federal cases were consolidated for discovery. Harrington and other plaintiffs’ attorneys entered into a February 16, 1993, Agreement Regarding Exchange of Information (the Agreement). The Agreement provided that the listed parties
“have a joint interest in pursuing litigation against Americold Corporation and Americold Services Corporation (Americold Defendants), arising out of the fire that occurred on December 28, 1991, at the Americold Storage Facility in Kansas Ciiy, Kansas;
“WHEREAS, exchange of information obtained or developed by tire parties will further the parties joint interest in pursuing their claims against the Americold Defendants.
“Now, therefore, the parties identified in this Agreement through their respective, undersigned attorneys, agree:
1. All information exchanged regarding the fire will be exchanged pursuant to the joint interest of the parties; and
2. By exchanging information the parties do not intend to waive and are not waiving any work product protection, attorney-client privilege or other protection or privilege applicable to information obtained or developed by any party; and
3. This agreement does not require any party to exchange information.
Dated: February 16, 1993.”
(The signatures of Harrington and several counsel for Associated in this case followed.)
The Parties’ Claims
According to Associated, Harrington also shared trial strategy, legal research, and draft briefs of arguments opposing Americold’s motion for summary judgment, and participated in conference calls and meetings. In support of these allegations, Associated submitted affidavits from three attorneys, John Duggan, William Gotfredson, and Edward Barbosa. In a lengthy affidavit, Harrington refutes Associated’s contentions concerning his representation. Specifically, he denies ever receiving confidential information or entering into a joint representation agreement with other plaintiffs. Harrington contends that the Agreement was not a “joint representation agreement,” but an agreement stating any shared information would remain subject to any applicable attorney-client privilege. According to Harrington, he never received any confidential information. Harrington also draws a distinction between his clients and Associated. Harrington observes his clients sought recovery under Americold’s warehouseman’s legal liability line of coverage (provided by Home Insurance Company). Associated’s claims were asserted under Americold’s general liability line of coverage (National Union and NPIC).
Associated admits that neither Harrington nor Cozen and O’Connor were retained to represent any of the Associated plaintiffs. Associated argues, however, that Harrington represented other plaintiffs against Americold “and by agreement shared confidential information of the Plaintiffs.” The parties advanced opin ions from four prominent attorneys in the legal ethics field. Associated submitted an affidavit from J. Nick Badgerow, Chairman of the Wyandotte County Bar Association Ethics and Grievance Committee and co-author, co-editor of the Kansas Ethics Handbook (Kan. Bar Assoc. 1996). Badgerow opined that Cozen and O’Connor had a conflict of interest precluding representation of NPIC based on MRPC 1.6, confidentiality of information (1998 Kan. Ct. R. Annot. 309), and MRPC 1.9. conflict of interest: former client (1998 Kan. Ct. R. Annot. 320). Badgerow reasoned that by the terms of a joint representation agreement: (1) “confidential information was shared among the various plaintiffs” and (2) “a fiduciary duty on the part of each participation (plaintiff and counsel) not to use or disclose any confidential information received from any other party” was created.
NPIC submitted affidavits from: Michael A. Barbara, former Shawnee County District Judge and Professor Emeritus, Wash-bum University School of Law; Samuel Dash, Professor of Law, Georgetown University, former special counsel to the Watergate Committee, retained by the Independent Counsel appointed to investigate the Whitewater matter as ethics counsel; and Geoffrey C. Hazard, Jr., Trustee Professor of Law, University of Pennsylvania, Sterling Professor of Law Emeritus at Yale University and executive director of the American Law Institute.
Professor Barbara concluded Cozen and O’Connor had no disabling conflict of interest and that there was no basis for disqualification. In Professor Dash’s opinion, no ethical or legal rule justifies the disqualification of Harrington or Cozen and O’Connor. Professor Dash reviewed the Agreement and, with the exception of the two in camera exhibits, the other Associated submissions in support of disqualification. In Professor Hazard’s opinion, neither Harrington nor Cozen and O’Connor “have any disabling conflict of interest, fiduciary duty or confidentiality obligation to the plaintiffs in the garnishment proceeding that would or should serve to disqualify them from continuing to represent NPIC.” Professor Hazard also reviewed the Agreement, concluding: “[Hjere, there was a brief agreement for cooperation dated February 16, 1993. Significantly, that agreement has no provision concerning confi dentiality. Accordingly, there was no contract expectation created among die parties to the agreement for cooperation and, hence, no basis to apply the common law concept of ‘implied attorney-client relationship.’ ”
The District Court’s Ruling
The district court found: (1) The underlying litigation in which Harrington participated was substantially related to the garnishment action against NPIC, and (2) the Agreement was clear evidence of an intent by the signatories to maintain confidentiality of all aspects of the underlying litigation. The district court considered the four expert’s affidavits and found the Badgerow opinion “more well-reasoned and more relevant to the issues presented.” Adopting the reasoning of GTE North, Inc. v. Apache Products Co., 914 F. Supp. 1575 (N.D. Ill. 1996), as applicable to this case, the district court disqualified Cozen and O’Connor. We return to GTE North later in the opinion.
DISCUSSION
Associated moved to disqualify the firm of Cozen and O’Connor under MRPC 1.9 and 1.10. In reviewing an attorney disqualification order, we decide whether the district court’s findings of fact are (1) supported by substantial competent evidence and (2) sufficient to support the conclusions of law. Review of questions of law is unlimited. Barragree v. Tri-County Electric Co-op, Inc., 263 Kan. 446, 454-55, 950 P.2d 1351 (1997).
Judge Spencer A. Gard has described the attorney-client relationship:
“In the professional relationship between lawyer and client two principles are deeply ingrained in the ethical scheme. One is that communications which pass between them in professional confidence must be insulated from being revealed, even in court, except with the consent of tire client. The other is that the legal talent which the client has hired and for which he is expected to pay belongs to him, and that neither he nor his lawyer may be compelled to permit the adversary to capitalize upon it. The first principle is for the protection of the client alone and is known as the lawyer-client privilege, long recognized at common law. The second principle is for the benefit of both the client and the lawyer and may be loosely described as that of proprietorship in the ‘work product.’ ” Gard, Discovery as Affected by the Attorney-Client Privilege and the Work Product Buie Under the New, Code, 33 J.K.B.A. 7 (Spring 1964).
MRPC 1.9 provides:
“A lawyer who has formerly represented a client in a matter shall not thereafter:
(a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or
(b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known.”
MRPC 1.10 is the imputed disqualification rule. If Harrington had an attorney-client relationship with Associated in a substantially related matter, the Cozen and O’Connor firm is disqualified if Harrington is disqualified. MRPC 1.9 and 1.10 apply only when a former client is at issue. Thus, an attorney-client relationship must be established before an MRPC 1.9 or 1.10 violation exists. Associated does not argue that an express attorney-client relationship existed here. Rather, Associated relies upon the district court’s finding that Harrington’s implied attorney-client relationship with Associated arose from the Agreement.
Implied Attorney-Client Relationships
We have not addressed the issue of an implied attorney-client relationship under a claimed joint representation agreement. We have, however, acknowledged the general rule on implied attorney-client relationships:
“ ‘The authority of an attorney begins with his retainer; but tire relation of attorney and client is not dependent on the payment of a fee, nor is a formal contract necessary to create this relationship. The contract may be implied from conduct of die parties. The employment is sufficiently established when it is shown that die advice and assistance of the attorney are sought and received in matters pertinent to his profession.’ ” In re Adoption of Irons, 235 Kan. 540, 548, 684 P.2d 332 (1984) (quoting 7 Am. Jur. 2d, Attorneys at Law § 118).
Professional Service Industries, Inc. v. Kimbrell, 758 F. Supp. 676, 682 (D. Kan. 1991), observed that Kansas recognizes an implied attorney-client relationship only where the client sought and received personal legal advice from the attorney.
Associated does not claim to have ever sought or received legal advice from Harrington. The contention is that Harrington executed the Agreement, which provided: (1) The signers “have a joint interest in pursuing litigation against Americold Corporation” and (2) an “exchange of information obtained or developed . . . will further the parties [sic] joint interest in pursuing their claims.” Associated also relies on the language of the Agreement that says “all information exchanged regarding the fire wall be exchanged pursuant to the joint interest of the parties.” Associated asserts that Harrington received confidential information and his receipt of that information produced an implied attorney-client relationship.
Although a joint representation agreement was not involved, a similar claim was asserted in Kimbrell, 758 F. Supp. at 681. Kimbrell was president and former owner of a corporation subject to formal complaints filed by the Environmental Protection Agency (EPA). When the corporation later sued Kimbrell, he arguéd two lawyers attending a corporate meeting where he presented information about EPA complaints should be disqualified. The lawyers represented the corporation and never expressly agreed to represent Kimbrell. Kimbrell reasoned, however, that the presence of the lawyers at a meeting in which he disclosed “confidential information” gave rise to an implied attorney-client relationship between himself and the lawyers.
Kimbrell argued that other jurisdictions have implied an attorney-client relationship without a formal agreement when the purported client “ ‘has some interest of his own in common with others and is seeking to advance a common position.’ ” 758 F. Supp. at 682. Judge Crow did not agree with Kimbrell’s expansive reading. Judge Crow noted that the cases focused on whether the party divulging information had the intent to secure legal advice. 758 F. Supp. at 682 (citing Westinghouse Elec. Corp. v. Kerr-McGee Corp., 580 F.2d 1311, 1320 [7th Cir. 1978]). Because Kimbrell had no such intent at the formal group meeting, and there was no pretense that the attorneys represented anyone but the corporation, no implied attorney-client relationship existed. 758 F. Supp. at 682-83.
Under Kimbrell’s facts, the case correctly states the Kansas rule. Applying the rationale of Kimbrell, Associated cannot show an implied attorney-client relationship. The district court below did not address Kimbrell, but relied on GTE North, 914 F. Supp. 1575, in determining Cozen and O’Connor should be disqualified.
Because the district court and Associated key Cozen and O’Connor’s disqualification to GTE North, we next focus on the facts in that case and the facts here. In GTE North, various companies received notification from the EPA that they were a “Potentially Responsible Party” (PRP) in the clean-up of a Superfund landfill site. Five of the companies, including GTE and Chrysler, formed a committee and executed a joint, remedial cost-sharing agreement (the Appleton Agreement) concerning the potential litigation. The Appleton Agreement’s purpose was to allocate costs, cooperate in investigating and identifying other-PRP’s, and jointly pursue cost recovery activities against any other PRP’s. The Appleton Agreement also included strict confidentiality provisions which provided that all shared information between members and their counsel shall “ be held in strict confidence by the receiving member and by all persons to whom such confidential information is revealed by the receiving member.’ ” (Emphasis added.) 914 F. Supp. at 1577. Chrysler was represented by Faletto.
Chrysler and GTE and others who wished to pursue cost recovery entered a second agreement, the “Investigation Agreement.” The Investigation Agreement contained several confidentiality provisions. Under the Investigation Agreement, “confidential communications” were disseminated to all members. After the investigation, Chrysler decided not to litigate and assigned its rights to the committee. GTE then sued Dean Foods. When Faletto appeared as counsel for Dean Foods, GTE sought to disqualify him, and his firm, based on imputed disqualification. GTE argued Faletto received “confidential communications,” attended strategy sessions, and shared the investigation results, including the relative legal merit of proceeding against certain PRP’s, including Dean Foods. Faletto and his firm were disqualified. Because GTE wás a civil case, the court required a showing that an exchange of confidential information had actually taken place. The existence of a confidentiality agreement was insufficient to meet this burden. The court held that there must actually have been an exchange of confidential information. 914 F. Supp. at 1580.
Faletto did not contest crucial facts submitted by GTE concerning his receipt of confidential information. The GTE North court pointed out that Faletto discussed investigation results, strategy, and the legal merit of proceeding against other parties, namely, Dean Foods. Faletto was privy to material confidential information regarding GTE’s case against Dean Foods. Faletto did not contest the fact that the matters were the same or substantially related; thus, the GTE North court did not have to make that finding.
The district court here did not state what aspects of the GTE North rationale it found convincing. No finding that Harrington actually received confidential information was made. It is unclear what, if any, confidential information the court thought Harrington received. The parties vigorously dispute whether confidential information was conveyed to Harrington.
At the conclusion of argument in the district court on the motion to disqualify Cozen and O’Connor, John M. Duggan, on behalf of Associated, submitted two exhibits (“Attorney Notes from conference calls” and “Memorandum and notes from February 16,1993 meeting”) for in camera inspection. Stephen A. Cozen, in opposing the motion, submitted “Documents referenced in John Duggan’s affidavit.” The district court said: “[I]n the event that I rely to any degree upon any of those three exhibits, I will so note in the opinion that I write determining this motion.” No reference is made to either any in camera submission or to confidential information shared by Harrington in the district court’s disqualification rulings.
The factual differences between this case and GTE North are remarkable. We do not read GTE North as persuasive authority for disqualification here.
The parties disagree on the nature of the Agreement. The district court seemed to conclude it was a confidentiality agreement. NPIC disputes this conclusion. NPIC contends the Agreement was nothing more than a promise that if information was exchanged, any attorney-client privilege would not be waived. Associated counters that the Agreement recited the signatories had a “joint interest in pursuing litigation against Americold” and was most definitely a confidentiality agreement. Associated admits the word “confidentiality” was never used in the document, but argues confidentiality was intended by the parties.
Seaman & Sachs, The Anatomy of a Joint Defense in Complex Insurance Coverage Litigation, 39 For the Defense 22, 28 (June 1997), advises on the importance of including confidentiality provisions in joint representation agreements. Such agreements
“should include a specific and detailed definition of ‘confidential’ or ‘privileged’ information and documentation. It should include a provision requiring that these materials be kept in strict confidence and not disclosed to third parties except as provided for in the agreement. Typically, the agreement will provide that materials may be exchanged among the participating insurers and their counsel and provided to reinsurers and auditors. The agreement usually will allow disclosure to vendors, consultants, and experts retained by die parties or the defense group provided such individuals execute a written agreement to maintain the confidentiality of the materials and the information is disclosed to them in furtherance of the joint defense effort.”
Associated has failed to show the existence of a joint confidentiality agreement here. The claims that Harrington received confidential information are tenuous at best. Associated has also failed to identify what prejudice would result if Cozen and O’Connor remain in the case.
The district court did not comment on whether the motion to disqualify Cozen and O’Connor was being used as a tactical device. See Barragree, 263 Kan. at 458. Motions to disqualify are often disguised attempts to divest opposing parties of their counsel of choice. Chrispens v. Coastal Refining & Mktg., Inc., 257 Kan. 745, 772, 897 P.2d 104 (1995).
Motions to disqualify should be reviewed with extreme caution, for they can be misused as a technique of harassment. Such motions are often simply common tools of the litigation process, used for purely strategic purposes. The right to be represented by counsel of choice is an important one, subject to override only upon a showing of compelling circumstances. See Barragree, 263 Kan. at 455. “[T]he purpose of the [MR.PC] can be subverted when they are involved by opposing parties as procedural weapons.” Rule 226, Scope (1998 Kan. Ct. R. Annot. 266).
CONCLUSION
We acknowledge a significant shift in issue and party alignment that plays a role in our reversal. When the Agreement was signed, Harrington’s subrogated bailment clients were pursuing the Home Insurance Company. Harrington was not involved with National Union or NPIC, Americold’s primary and excess comprehensive general liability insurers against whom Associated was proceeding. Neither Harrington’s clients nor Harrington participated in Americold I. Harrington’s former clients are not parties in this proceeding. Harrington did not participate on behalf of any client in Associated’s (1) settlement with Americold, (2) covenant not to execute against the assets of Americold, and (3) assignment of Americold’s claims against NPIC. Americold has never been a client of Cozen and O’Connor. The interests of Cozen and O’Connor’s clients have always been adverse to Americold. However, Associated and current counsel have, through the consent judgments, assignments of rights, and covenants not to execute on Americold’s assets, shifted from being adverse to Americold to having consistent interests with Americold against NPIC. The posture of this case on remand from Americold I involves limited issues not existing when the Agreement was signed.
Since disqualification is sought under MRPC 1.9, the burden of proof is on Associated. See Barragree, 263 Kan. at 455. Associated has failed to show that disqualification is appropriate under the circumstances here.
NPIC filed a motion to reconsider the district court’s disqualification decision. The thrust of the NPIC motion was a memorandum decision and order in State, ex rel. Carla J. Stovall, Attorney General v. Brooke Group, Ltd., et al., No. 97-CV-319, Shawnee County District Court, October 15, 1997. Brooke Group arose from the State’s tobacco litigation and was filed the day of the decision disqualifying Cozen and O’Connor. The district court here received written submissions and heard oral argument on Brooke Group before denying NPIC’s motion to reconsider. Brooke Group relied on K.S.A. 60-426 in ruling that the common-law joint defense privilege is not recognized in Kansas.
Although the parties reference the Brooke Group decision in their briefs, neither the four experts, the parties, nor the district court reference K.S.A. 60-426, the statutory attorney-client privilege. The presentation of this case has not focused on K.S.A. 60-426 and that statute’s effect on joint representation agreements. We note that at least one state in codifying the attorney-client privilege has apparently included a joint representation privilege. See Me. R. Ev. 502(b)(3) (1998).
Our holding here is limited. The Associated plaintiffs are not Harrington’s former clients. No finding was made that Associated shared confidential information with Harrington. The Agreement does not create an implied attorney-client relationship between Harrington and Associated. Cozen and O’Connor may represent NPIC in this case.
One commentator has recently noted: “Without a credible argument for recognition of the joint defense doctrine based on the language of the attorney-client privilege statute itself [K.S.A. 60-426] proponents of the joint defense doctrine are vulnerable to attack.” Pace, The State of Joint Defense Privilege, K.A.D.C. Legal Letter No. 4, p. 5 (Dec. 1998). The effect of K.S.A. 60-426 on joint representation agreements is reserved for another day when the issue and policy considerations have been fully briefed and placed squarely before us.
Reversed.
Larson, J., not participating.
Terry L. Bullock, J., assigned. | [
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Per Curiam:
This is an original proceeding in discipline filed by the Disciplinary Administrator’s office against Richard P. Senecal, of Atchison, an attorney admitted to the practice of law in Kansas.
A formal complaint was filed against respondent on August 27, 1998, alleging violations of MRPC 1.1 (1998 Kan. Ct. R. Annot. 279) (competence); 3.1 (1998 Kan. Ct. R. Annot. 350) (meritorious claims and contentions); 3.3(a) (1998 Kan. Ct. R. Annot. 354) (candor toward the tribunal); 4.1 (1998 Kan. Ct. R. Annot. 366) (truthfulness in statements to others); and 8.4(c), (d), and (g) (1998 Kan. Ct. R. Annot. 386) (misconduct).
A formal hearing was held before a panel of the Kansas Board for Discipline of Attorneys on April 14, 1998. Respondent appeared in person and by John J. Ambrosio. The Disciplinary Administrator appeared by Frank D. Diehl, Deputy Disciplinary Administrator.
The disciplinary panel found the following facts were established by clear and convincing evidence:
“1. Respondent is an attorney at law, Kansas Registration No. 05773. He was admitted to the Kansas Bar in June, 1961. His last registration address with the Clerk of the Appellate Courts of Kansas is . . . Atchison, Kansas ....
“2. Respondent was investigated because of a letter written by [D.V.], an aggravated sexual battery victim of Russell A. Vanwey in a case in Shawnee County, Kansas. . . . She wrote the Attorney General’s Office and copied the Disciplinary Administrator because she learned that Mr. Vanwey’s prison sentence for a felony unlawful weapons charge in Case No. 92 CR-91 in Atchison County, Kansas, was changed to run concurrently, rather than consecutively, with his earlier felony sentence in Shawnee County Kansas. He had been on parole for the earlier felony conviction when he violated that parole committing the latter felony charge. By violating his parole, Mr. Vanwey was required to serve the full term of both sentences one after the other. Respondent prepared the Order Nunc Pro Tunc that changed these sentences to run concurrently, rather than consecutively.
“3. Respondent represented Mr. Vanwey in Case No. 92 CR-91 in Atchison County. The sentence resulted from a negotiated plea. . . . Respondent testified that after approximately three (3) years had elapsed in Mr. Vanwey’s sentence for Case No. 92 CR-91, his mother approached Respondent about getting her son out of prison. She told Respondent that her son had filed a pro se motion for jail time credit based on time he had served in the county jail. Respondent said he told Mr. Vanwey’s mother that ‘there weren’t many avenues’ for her son’s release.
“4. Respondent knew that there was no error in Mr. Vanwey’s sentence. . . . Respondent knew that 120 days was the maximum time within which a court could modify a sentence. . . . Respondent knew that changing of a sentence initially entered to run consecutively with a prior sentence to run concurrently with that sentence was not a correct purpose of an Order Nunc Pro Tunc.
“5. Nonetheless, Respondent testified that he informally approached District Judge Maurice O’Keefe, the sentencing judge, about an early release and that the judge opined that Mr. Vanwey had served enough time. . . . A hearing was held before Judge Lacey on October 10, 1995 on Mr. Vanwey’s pro se motion. . . . Respondent appeared for Mr. Vanwey. Prior to the hearing, Respondent contacted the County Attorney by phone regarding entry of appearance on behalf of Mr. Vanwey. . . . Mr. Tement testified that during the phone conversation and during a conversation preceding the hearing on October 10, 1995, Respondent represented that Mr. Vanwey’s sentences were supposed to have run concurrently. . . . The County Attorney stated on the record, in the presence of the Respondent at the October 10, 1995 hearing that Respondent had earlier represented to him that the proposed Order Nunc Pro Tunc corrected a mistake in sentencing order. . . . Therefore, the state had no objection to a change of sentence. . . . The County Attorney did not review the criminal case file, but relied on Respondent’s representations to him. . . . Respondent made no attempt to correct the County Attorney’s misunderstanding. Respondent filed the Motion for the Order Nunc Pro Tunc on October 19, 1995 and after delays, the motion was heard, with substitute counsel for both the state and the defense ... , on February 12, 1996. Judge Lacey signed the proposed order that same day. . . . When the Order Nunc Pro Tunc was entered February 12,1996, Mr. Vanwey was released from prison.
“6. During its investigation tire Disciplinary Administrator’s office requested an opinion from the Kansas Attorney General regarding the use of the Order Nunc Pro Tunc in the Vanwey case. The Attorney General’s opinion stated that changing the sentences from consecutive to concurrent violated K.S.A. 1991 [Supp.] Section 21-4608 requiring mandatory consecutive sentencing. In addition, because K.S.A. 1991 [Supp.] 21-4603(4)(a) prohibits changes in sentencing more than 120 days after sentencing, the Attorney General’s opinion stated that the court had no jurisdiction to enter said Order Nunc Pro Tunc more tiran 120 days after imposition of sentence. . . .
“7. As a result of [D.V.’s] letter . . . and the Attorney General’s opinion letter ... , the County Attorney’s office filed a Motion to Set Aside the Order Nunc Pro Tunc. ... A hearing was held on August 5, 1996 .... Respondent opposed the Motion on the basis that it was moot because Mr. Vanwey’s parole had been revoked. However, Respondent testified before the Panel that the nunc pro tunc order had efficacy for his client notwithstanding the revocation of parole. . . . When the District Court declined to reverse itself, the state appealed. Respondent defended the district court’s denial of the motion. [In its] opinion in State v. Vanwey, 262 Kan. 524 (1997), the Kansas Supreme Court held that the lower court erroneously refused to set aside its nunc pro tunc order, that jurisdiction did not exist for the nunc pro tunc order to be issued, and that the original sentence remains in full force and effect. . . .
“8. Respondent states that he did not mislead the court, and Judge Lacey testified he was not misled.. . .
“9. Witnesses Brenda Horton and J. David Farris, supported Respondent testimony regarding mitigating factors.”
From the findings of fact, the panel concluded:
“The Panel finds, by clear and convincing evidence, that Respondent has violated MRPC 4.1(a) by his failure to speak up when he knew the Order Nunc Pro Tunc was not correcting a prison sentence, but was changing it, after 120 days for amending sentences had elapsed. . . . This is an incorrect use of an Order Nunc Pro Tunc. Although, Judge Lacey was not misled by the use of the Order Nunc Pro Tunc, County Attorney Allen Tement was misled. Mr. Tement was not the prosecutor at the trial, and he understood that the change from consecutive sentences to concurrent sentences was to correct a mistake in Judge O’Keefe’s sentencing order.
“The Panel further finds, by clear and convincing evidence that Respondent violated MRPC 3.1 because there was no legal basis for changing Mr. Vanwey’s sentences from consecutive to concurrent. A nunc pro tunc order was an improper procedure to use to request the defendant's release. The request was contrary to K.S.A. 21-4608 requiring consecutive sentences, and to K.S.A. 21-4603 prohibiting changes in sentences more than 120 days after imposition. Further, Respondent continued to support the order in district court and in the appellate proceedings.
“The Panel does not find clear and convincing evidence in the record to support a finding of a violation of MRPC 1.1. Further, because Judge Lacey unequivocally stated he was not [misled] as to the factual circumstances of the sentence and knew the applicable law, the Panel does not find clear and convincing evidence of a violation of MRPC 3.3[a] or 8.4.”
As to aggravating and mitigating factors, the panel report included the following:
“Mr. Diehl drew the Panel’s attention to the following factors in aggravation as applicable to this case: (b) dishonest or selfish motive (g) refusal to acknowledge wrongful nature of conduct and (i) substantial experience in the practice of law.
“Mr. Ambrosio noted for the record that the following factors in mitigation apply to Respondent’s situation: (a) absence of prior disciplinary record and (g) previous good character and reputation in the community including [many] letters from clients, friends and lawyers in support of the character and general reputation of the attorney.”
The panel made the following recommendations:
“After reviewing the factors in mitigation and aggravation and the ABA Standards for Imposing Lawyer Sanctions, the Panel recommends that Respondent be informally admonished per ABA Standard 6.14. This transgression was a serious matter involving failure to deal forthrightly with the County Attorney which resulted in the premature and illegal release of a felon. Fortunately, the fufi potential harm to the public was avoided because Mr. Vanwey’s parole was revoked, and thereafter the order changing his sentence was reversed. Because the complaint represents an isolated incident in Respondent’s long unblemished legal career, a more severe disposition would be inappropriate.”
Panel member Anne L. Baker dissented. She would find that there was clear and convincing evidence that respondent violated MRPC 8.4(d). As to the sanction, she concluded:
“I believe that the Respondent should be publicly censured in accord with ABA standards 6.13 and 6.23. The findings of fact do not satisfy ABA standard 6.14 which requires that the misconduct caused litde or no actual or potential injury to a party or caused . . . little or no adverse or potentially adverse effect on the legal proceeding. Rather, the findings support the requirements of ABA standard 6.13 that the misconduct caused injury or potential injury to a party or had an adverse or potentially adverse effect on the legal proceeding. In addition, ABA standard 6.23 is also relevant. It provides for public censure when a lawyer negligently faEs to comply with a court order or rule and causes injury or potential injury to another party, such as the victims of Mr. Vanwey.”
This court, having considered the record, the majority report and dissent, arguments of counsel, and statement of respondent, finds the panel’s findings and conclusions of law are supported by clear and convincing evidence. However, a majority of this court cannot accept the majority panel’s recommended discipline and concludes the appropriate discipline is published censure. A minority of this court would accept the majority panel’s recommendation of informal admonishment.
It Is Therefore Ordered that Richard P. Senecal be and he is hereby disciplined by published censure in accordance with Supreme Court Rule 203(a)(3) (1998 Kan. Ct. R. Annot. 210).
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports.
Davis, J., not participating.
Christel E. Marquardt, J., assigned. | [
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The opinion of the court was delivered by
Davis, J.:
The State appeals the dismissal of its petition charging Emery Joe Ingram with being a sexually violent predator under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. The petition was not filed “within 75 days of the date the attorney general received the written notice” as provided by K.S.A. 1997 Supp. 59-29a04. The petition was filed 88 days after the attorney general was properly notified. The question raised is whether the 75-day time period is jurisdictional. The district court ruled it was and dismissed. We affirm.
Emery Joe Ingram was confined serving a sentence for rape. Prior to his release, the attorney general filed a petition to have him declared a sexually violent predator.
The Kansas Sexually Violent Predator Act provides the authority and procedure for the involuntary commitment for care and treatment of those persons adjudged to be sexually violent predators. K.S.A. 1997 Supp. 59-29a03 provides in pertinent part:
“(a) When it appears that a person may meet the criteria of a sexually violent predator as defined in K.S.A. 59-29a02 and amendments thereto, the agency with jurisdiction shall give written notice of such to the attorney general and the multidisciplinary team established in subsection (d), 90 days prior to:
“(1) The anticipated release from total confinement of a person who has been convicted of a sexually violent offense ....
“(d) The secretary of corrections shall establish a multidisciplinary team which may include individuals from other state agencies to review available records of each person referred to such team pursuant to subsection (a). The team, within 30 days of receiving notice, shall assess whether or not the person meets the definition of a sexually violent predator, as established in K.S.A. 59-29a02 and amendments thereto. The team shall notify the attorney general of its assessment.
“(e) The attorney general shall appoint a prosecutor’s review committee to review the records of each person referred to the attorney general pursuant to subsection (a). The prosecutor’s review committee shall assist the attorney general in the determination of whether or not the person meets the definition of a sexually violent predator. The assessment of the multidisciplinary team shaE be made available to the attorney general and the prosecutor’s review committee.”
There is no dispute in the instant case that the agency with jurisdiction complied with the notice provision of K.S.A. 1997 Supp. 59-29a03. The Secretary of Corrections sent written notice to the attorney general and the multidisciplinary team 90 days prior to the release date of Emery Joe Ingram that he fit within the definition of a sexually violent predator. However, the attorney general failed to take action within the time specified under the Act.
K.S.A. 1997 Supp. 59-29a04 provides:
‘When it appears that the person presently confined may be a sexually violent predator and the prosecutor’s review committee appointed as provided in subsection (e) of K.S.A. 59-29a03 and amendments thereto has determined that the person meets the definition of a sexually violent predator, the attorney general may file a petition, within 75 days of the date the attorney general received the written notice by the agency of jurisdiction as provided in subsection (a) of K.S.A. 59-29a03 and amendments thereto, aEeging that the person is a sexually violent predator and stating sufficient facts to support such aEegation.” (Emphasis added.)
The attorney general filed a petition, alleging that the defendant is a sexually violent predator 88 days after receiving written notice, rather than within the 75-day time period required. The question of whether the petition must be filed within the 75-day period is a question of law. Our review is unlimited. See State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
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 be. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). Moreover, there is a presumption that the legislature does not intend to enact useless or meaningless legislation. KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).
The statute we interpret plainly and unambiguously authorizes the attorney general to “file a petition, within 75 days of the date the attorney general received the written notice.” K.S.A. 1997 Supp. 59-29a04. We need not reach the State’s argument that the 75-day period is simply directory and not mandatory. K.S.A. 1997 Supp. 59-29a04 provides the sole authorization for the State to commence a proceeding to have a person declared a sexually violent predator. There is no provision in the Act for a petition to be commenced outside of the 75-day period.
The State argues that the words “may file” used in K.S.A. 1997 Supp. 50-29a04 provide the discretionary authority to file a petition beyond the 75 days. We find no merit in this argument, for a plain reading of the statute indicates that “may file” refers to the discretionary act of filing, not the time limit in which filing must occur.
The State also argues that it has indirectly complied with the provisions of the Sexually Violent Predator Act as a whole because it has given 25 days’ notice to the defendant, 10 days more than the Act requires. The interpretation advanced by the State would have us conclude that since initially the attorney general must by statute be served with notice 90 days in advance of the release of the confined person, and the attorney general then must file the petition within 75 days, the statute contemplates that the confined person be given at least 15 days to respond (90 minus 75). The State contends that, therefore, it substantially complied with the Act by giving the defendant 25 days’ notice. Again, this argument ignores the plain language of the 75-day provision in K.S.A. 1997 Supp. 59-29a04 and suggests that the legislature did not really mean what it clearly said. We reject this contorted interpretation in favor of the plain and unambiguous language of the statute.
We hold that K.S.A. 1997 Supp. 59-29a04 provides the sole authority for the State to file a petition to have a person declared a sexually violent predator. The 75-day provision is jurisdictional, and a district court has no jurisdiction to entertain a petition filed beyond the time provided for in K.S.A. 1997 Supp. 59-29a04.
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On March 4, 1994, this court placed respondent on probation for a period of 2 years with specific conditions of supervision and reporting. In re Herman, 254 Kan. 908, 869 P.2d 721 (1994).
The Disciplinary Administrator has filed a report verifying that respondent has fully complied with all conditions imposed upon him by this court and recommending that respondent be discharged from probation.
This court, having reviewed the files and recommendation of the office of the Disciplinary Administrator, finds that respondent John C. Herman should be discharged from probation.
It Is Therefore Ordered that respondent is hereby discharged from probation and from any further obligation in this matter and that this proceeding is closed.
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein be assessed to respondent. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by Unified School District No. 443 (USD 443), Ford County, Kansas. USD 443 asserts that the 1987 amendment to K.S.A. 72-8230 unlawfully impairs its right to unilaterally terminate its participation in an interlocal cooperative agreement with 15 other school districts. The statute at issue extended an interlocal agreement between the districts that terminated by its own terms in 1989. USD 443 argues that the amended statute violates both the United States and Kansas Constitutions.
I. BACKGROUND
Both Kansas and federal law require that school districts provide certain special education services to “exceptional children” or other qualifying students enrolled in their respective districts, i.e., K.S.A. 72-966(a) and 20 U.S.C. 1400 et seq. The term “exceptional children” encompasses a wide spectrum of children from those who have severe physical or mental challenges to gifted children.
School districts in Kansas may provide the education services for exceptional children in one of three ways (or a combination of the three):
1. By a “stand alone” program, i.e., where the district provides the educational programs and services to only its own students;
2. Through a cooperative, i.e., one district serves as a sponsoring district and other districts share the cost;
3. Through an interlocal agreement (also a cooperative but referred to as an “interlocal”), i.e., an independent legal entity known as an “interlocal” provides the special education services to all member districts. Both the “cooperative” and “interlocal” are created by contractual agreements among the member districts which are participating in the programs.
USD 443 appears to be the only district in Kansas with a full-time equivalent enrollment of over 3,000 students that does not have a “stand alone” or “cooperative” program to provide the required education services.
USD 443 and some of the districts involved in this case formed an interlocal. The interlocal entity formed is Southwest Kansas Area Cooperative District No. 613 (SKACD). SKACD was a successor to a cooperative district in which Dodge City had been the sponsoring district. In the late 1970’s the interlocal was formed. As required by the law in effect at that time, the agreement was limited to a term of years (not less than 3 nor more than 5). After several successor agreements, the 16 school districts involved in this case signed an interlocal agreement in 1986, which by its express terms was to expire June 30, 1989.
In 1987, the legislature amended K.S.A. 72-8230(a) in pertinent part as follows:
“(5)(A) The duration of a school district interlocal cooperation agreement for joint or cooperative action in providing special education services shall be perpetual unless the agreement is partially or completely terminated in accordance with this provision. This provision applies to every school district interlocal cooperation agreement for the provision of special education services entered into under authority of this section after the effective date of this act and to every such agreement entered into under this section prior to the effective date of this act, and extant on the effective daté of this act, regardless of any provisions in such an agreement to the contrary.” (Emphasis added.) L. 1987, ch. 276, § 1.
Thus, by such amendment, the 1986 interlocal agreement to which USD 443 was a party became, by operation of law, a perpetual agreement and could be terminated only by approval of the State Board of Education (State Board) in accordance with the procedures as set forth in the statute. Consequently, USD 443 was statutorily prohibited from unilaterally withdrawing from the in terlocal agreement effective June 30, 1989 (the expiration date), by virtue of the above statutory amendments.
The legislative history shows that when the committees were considering the 1987 amendment, Gary Bishop, Director of SKACD, appeared before a legislative committee and spoke in favor of the amendment in question. He testified that additional units “may be responsible for additional costs” and that “coop break-up may not always be for sound educational reasons.” He also testified that since the State pays about one-half of the total cost, it should have some control over the make-up of the special education administrative units.
SKACD apparently functioned well until sometime in the 1990’s. Although it is of no import to this opinion, SKACD’s relations with USD 443 did not improve when SKACD responded to USD 443’s demand for rent for some 5,000 square feet of space owned by USD 443 and used as SKACD’s administrative offices by moving the office to Ensign, Kansas. As a result of this move, the three administrators, office staff, and educational materials were no longer available in Dodge City, where 50% of the students who were served by SKACD lived.
USD 443 attempted to negotiate some changes in the interlocal agreement (discussed later), and when negotiations were unsuccessful, it attempted to withdraw from SKACD. USD 443 attempted to withdraw in 1995, some 8 years after the amendment to K.S.A. 72-8230(a) took effect, and after operating under the interlocal agreement for some 6 years after the legislature had statutorily extended it.
SKACD denied the request of USD 443 to withdraw by a vote of 13 to 1, with USD 443’s vote being the only one in favor of the withdrawal. As authorized by K.S.A. 72-8230(a)(6)(B), USD 443 appealed SKACD’s denial to the State Board. The State Board appointed a three-person panel to. hear the appeal. Only two issues were presented: whether the statutory mandates that the State Board in approving or disapproving a complete or partial termination must find was in (1) the best interests of the involved school districts, and (2) in the best interests of the state as a whole in providing special education services for exceptional children. See K.S.A. 72-8230(a)(6)(D).
Before the hearing panel, USD 443 raised the issue that the amendment was contrary to both the federal and state Constitutions because the amendment interfered with contractual rights. All parties recognized that the State Board, as an administrative agency, could not raise or rule upon this.
Although largely irrelevant to this appeal, USD 443 asserted three main reasons for its withdrawal from SKACD. First, USD 443 wanted to run its own program or have weighted voting. It is about seven times larger than the next largest participating district in SKACD and 66 times larger than the smallest participating district. SKACD has a 16-member board and USD 443 has only 1 member on the board. Thus, USD 443 has only one vote, although it has 50% of the students and pays almost 50% of SKACD’s budget that is paid by the members. (The state and federal governments appear to pay over 50% of the budget and that percentage does not include the sum paid by the State to each district for each full-time student.) Apparently, • one-half of the staff is employed in Dodge City, but the three administrators, office staff, and educational materials are in Ensign. No special education services are provided by SKACD in Ensign.
The second argument of USD 443 centers around the concept of weighted funding. The smaller districts receive a larger sum per pupil than USD 443. In fact, the districts, due to the size of qualifying enrollment, do not all receive the same amount per pupil. USD 443 wanted each district’s assessment to SKACD to be based on weighted funding received by each district.
Finally, USD 443 wanted one administrator assigned exclusively to USD 443 and located at USD 443 offices. USD 443 also presented other evidence as to the best interests of the involved school districts and of the State as a whole, as did SKACD.
The heating panel filed its written report with the State Board, recommending denial of USD 443’s request to withdraw from SKACD. The State Board adopted the panel’s recommendation verbatim and denied the appeal filed by USD 443 to withdraw as a member of SKACD.. The State Board thus found it would not be in the best interests of the involved school districts or of the State as a whole to grant the requested withdrawal.
USD 443 appealed to tire District Court of Shawnee County, and it upheld the State Board’s decision. A review of the findings of fact to support the findings of the State Board is not necessary because USD 443 is not appealing based on grounds involving the facts.
II. ISSUES
USD 443 raises three issues on appeal.
1. Was USD 443’s 1986 contract with the other interlocal districts impaired within the meaning of and in violation of the provisions of Article I, § 10 of the United States Constitution?
2. Did the 1987 amendment to K.S.A. 72-8230 violate USD 443’s rights under the Fifth and Fourteenth Amendments to the United States Constitution and § 1 of the Kansas Constitution Bill of Rights?
3. Did the district court err in refusing to address and decide the state constitutional issue in its judicial review of the state agency action?
USD 443 appealed the State Board’s decision to the district court pursuant to the Act for Judicial Review and Civil Enforcement of Agency Actions (KJRA), K.S.A. 77-601 et seq. Where a district court’s decision is appealed under this Act, “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.” Butler v. U.S.D. No. 440, 244 Kan. 458, 464, 769 P.2d 651 (1989). Constitutional issues present a unique situation, however, because administrative boards and agencies may not rule on constitutional questions. Therefore, “the issue of constitutionality must be raised when the case is on appeal before a court of law.” In re Residency Application of Bybee, 236 Kan. 443, Syl. ¶ 4, 691 P.2d 37 (1984). Thus, the district court had de novo review of the constitutionality of the 1987 amendment to K.S.A. 72-8230. Consequently, we review de novo the district court’s findings involving issues of constitutionality. An issue of whether a statute violates a constitutional provision is a question of law, and an ap pellate court’s scope of review of questions of law is unlimited. Injured Workers of Kansas v. Franklin, 262 Kan. 840, Syl. ¶ 1, 942 P.2d 591 (1997).
The issues in this case, with the exception of the issue of whether the district court abused its discretion in refusing to rule on the state constitutional issue, challenge the constitutionality of legislation on various grounds. Accordingly, the judiciary’s role is very limited in its scope.
Art. 6, § 1 of the Kansas Constitution states that “[t]he legislature shall provide for intellectual, educational, vocational and scientific improvement by establishing and maintaining public schools, educational institutions and related activities which maybe organized and changed in such manner as may be provided by law.” Art. 6, § 2(a) mandates:
“The legislature shall provide for a state board of education which shall have general supervision of public schools, educational institutions and all the educational interests of the state, except educational functions delegated by .law to the state board of regents. The state board of education shall perform such other duties as may be provided by law.”
Art. 6, § 5 expresses the power of the local school boards:
“Local public schools under the general supervision of the state board of education shall be maintained, developed and operated by locally elected boards. When authorized by law, such boards may make and carry out agreements for cooperative operation and administration of educational programs under the general supervision of the state board of education, but such agreements shall be subject to limitation, change or termination by the legislature.”
K.S.A. 72-8230(a)(4) states that “[a] school district interlocal cooperation agreement shall be subject to change or termination by the legislature.” The original enabling statute, K.S.A. 1975 Supp. 72-8230(e), also provided that “[a]ny such agreement shall be subject to change or termination by the legislature.” Likewise, K.S.A. 1975 Supp. 72-8230(d) mandated that “[a]ny such agreement shall be effective only after approval by the state board of education.”
At the outset, we question whether we should consider the appeal. Here, USD 443 was a member of SKACD, and SKACD, with no apparent objection by USD 443, appeared before a legislative committee and urged passage of the amendment in question. Then, for 2 years before the interlocal agreement terminated on its own terms, USD 443 made no effort to challenge the statute. After that amendment went into effect and extended the contract, subject to modification or termination in whole or in part by agreement of the parties or by action of the State Board, USD 443 did nothing to challenge the constitutionality of the statute for 6 more years. It was not until 8 years after the statute was amended that USD 443 challenged the statute. In the interim, it operated according to the statute and the interlocal agreement extended by the statute, met its obligations, and accepted the benefits of that interlocal agreement.
Generally, such conduct and failure to act will result in the issue being considered as waived. See Owen v. Mutual Ben. Health & Acc. Ass’n, 171 Kan. 457, 233 P.2d 706 (1951), and Leavenworth-Jefferson Electric Co-op v. Kansas Corp. Comm'n, 247 Kan. 268, 797 P.2d 874 (1990). The parties have not had an opportunity to brief that issue; thus, we exercise our discretion to decide the matter on its merits.
Here, the State Board contends that USD 443 has no standing, since it is created by the legislature as a political subdivision of the State, to challenge whether the State impaired a contract with USD 443. U.S.D. No. 380 v. McMillen, 252 Kan. 451, 845 P.2d 676 (1993), however, permitted U.S.D. 380 to challenge whether it was denied the protection of the Kansas Constitution even though it was a political subdivision of the State. Therefore, although a school district’s duties are not self-executing, but dependent upon statutory enactment of the legislature, this does not mean that the school district is stripped of the right to challenge the statute’s constitutionality, nor is it removed from the protection of the constitution.
Kansas case law does not mandate a rule that a school district is removed from a claim of contractual impairment; thus, the district court correctly held, on the facts unique to this case, that a school board’s freedom of choice and power, to enter an interlocal agreement bestowed upon it by Art. 6, § 5 of the Kansas Constitution, .makes it subjéct to a claim of contractual impairment.
USD 443 claims that it has a vested right, by virtue of the state constitution, to enter into cooperative agreements with other districts to provide educational services, including the provision of special education service. Because the language of Art. 6, § 5 of the Kansas Constitution is permissive rather than mandatory, USD 443 reasons that implicit in the permissive right to enter into such contracts is the permissive right to withdraw.
In Federal Land Bank of Wichita v. Bott, 240 Kan. 624, 732 P.2d 710 (1987), the court relied on Home Bldg. & L. Assn. v. Blaisdell, 290 U.S. 398, 78 L. Ed. 413, 54 S. Ct. 231 (1934), and Energy Reserves Group v. Kansas Power & Light, 459 U.S. 400, 74 L. Ed. 2d 569, 103 S. Ct. 697 (1983), and set out the criteria for determining whether a state law violates the contract clause. The Bott court stated:
“The test for determining whether a state law violates the contract clause of the United States Constitution is whether: (1) The state law has, in fact, operated as a substantial impairment of a contractual relationship; (2) whether there is a significant and legitimate public purpose behind the legislation; and (3) whether the adjustment of the contracting parties’ rights and responsibilities is based upon reasonable conditions and is of a character appropriate to the public purpose justifying the legislation’s adoption.” 240 Kan. 624, Syl. ¶ 4.
The Bott court noted that although Art. I, § 10 of the United States Constitution “appears facially absolute, it must be considered in conjunction with the reserved power of the state to protect the vital interests of the community.” 240 Kan. 624, Syl. ¶ 3. Further, the Bott court explained:
“Historically, the contract clause of the United States Constitution was adopted to prohibit the states from enacting laws which ‘impair the obligation of contracts.’ This prohibition has been construed as preventing the states from passing any statute which will alleviate the commitment of one party to a contract or which interferes with the enforcement of the contract.” 240 Kan. at 629.
The Bott court stated that the Family Farm Rehabilitation Act (Act) is a debtor relief law and the “motive for adoption of the contract clause was to prohibit states from retroactively interfering with contracts between private parties.” 240 Kan. at 629. The Act authorized the stay of enforcement of certain judgments relating to land and property used in farming operations and provided for redemption of that land in certain cases.
The Bott court stated that the legislation may still be upheld as constitutional, despite a substantial impairment finding, if “there is a significant and legitimate public purpose behind the legislation,” and if “the impairments to the contracting parties’ rights and responsibilities are based upon ‘reasonable conditions’ and are of a ‘character appropriate to the public purpose’ to justify the legislation’s adoption.” 240 Kan. at 636. Bott ultimately held that although the legislature’s attempt to stabilize economic conditions and to assist a troubled agricultural industry was a significant and legitimate public purpose, “[t]he impairments to the contracting parties’ rights and responsibilities resulting from the [Act] . . . are not based upon ‘reasonable conditions’ nor are they of a character appropriate to the public purpose justifying the legislation’s adoption.” 240 Kan. 625, Syl. ¶¶ 6 and 7.
In Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 57 L. Ed. 2d 727, 98 S. Ct. 2716, reh. denied 439 U.S. 886 (1978), the United States Supreme Court analyzed whether the Minnesota Private Pension Benefits Protection Act required private companies that stopped operation or terminated their pension plans to nevertheless pay a pension to employees who had worked for a company for 10 or more years. The Minnesota Act required companies to pay a pension to an employee even if an employee’s right to receivé a pension had not yet vested according to the requirements of an individual company’s pension plan. 438 U.S. at 239. The Court first stated that Minnesota’s legislation substantially altered the contractual relations of Allied Structural Steel (the company) with its employees “by superimposing pension obligations upon the company conspicuously beyond those that it had voluntarily agreed to undertake. But it does not inexorably' follow that the Act, as applied to the company, violates the Contract Clause of the Constitution.” 438 U.S. at 240. The Spannaus Court pronounced:
“First of all, it is to be accepted as a commonplace that the Contract Clause does not operate to obliterate the police power of the States. ‘It is the settled law of this court that the interdiction of statutes impairing the obligation of contracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously entered into between individuals may thereby be affected. This power, which in its various ramifications is known as the police power, is an exercise of the sovereign right of the Government to protect the lives, health, morals, comfort and general welfare of the people, and is paramount to any rights under contracts between individuals.’ Manigault v. Springs, 199 U.S. 473, 480.” 483 U.S. at 241.
The Spannaus court ultimately held that the Act violated the Contract Clause because it was not enacted to deal with a broad, generalized economic or social problem; it operated in an area that was not subject to state regulation when the company’s contractual obligations were originally undertaken, but invaded an area that had never before been subject to state regulation; it created irrevocable and retroactive changes in the company’s contractual relationships; and it was not aimed “at every Minnesota employer, not even every Minnesota employer who left the state, but only at those who had in the past been sufficiently enlightened as voluntarily to agree to establish pension plans for their employees.” 438 U.S. at 250.
USD 443 argues that the district court decided that there was no Contract Clause violation solely because there was no economic impairment, and economic impairment is not a necessary element for a Contract Clause violation. The district court provided an extensive analysis of the Contract Clause and ruled that there was no economic impairment, but it cannot be said that this was the only reason for the district court finding that there was no Contract Clause violation. The constitutionality of the 1987 amendment passes the test set out in Bott.
If an impairment is not significant, our analysis ends and there is no violation of the Contract Clause. Assuming a significant impairment, the statute here is nonetheless saved from a declaration of unconstitutionality because a valid public purpose exists for restricting school districts from withdrawing from interlocal agreements. Further, in accordance with the Bott test, the statute, as amended in 1987, is reasonable because it does not unequivocally prohibit a school district’s withdrawal. Rather, the 1987 amendment mandates that the State Board must approve the withdrawal, after considering the adverse impact on all school districts and the State as a whole.
The legislature’s grant of power to the State Board, by virtue of the 1987 amendment, to approve or disapprove a withdrawal based on the criteria set out in the same statute, is also reasonable, given that the Kansas Constitution specifically provides for a State Board with broad authority. The legislative history of the 1966 amendments to Art. 6 of the Kansas Constitution shows that the creation of a powerful State Board was one of the intentions of the 1966 changes. In a detailed report, Implementation of the Education Amendment-A Report of the Education Advisory Committee to the Committee on Education on Proposal No. 45 (Publication No. 260, November 1966), the committee characterized the functions conferred on the State Board as of “such magnitude and importance that people of outstanding ability and experience will be needed as members.” The committee also noted that the State Board would “exercise some quasi-legislative and quasi-judicial powers in adopting rules and regulations and reviewing disagreements or conflicts between local educational agencies or interests.” Report of the Education Advisory Committee, p. 8.
In the present case, USD 443’s interlocal agreement with the 15 other school districts provided that the agreement would terminate on June 30, 1989. Here, the school districts knew before the 1987 amendment was promulgated that statutory provisions for inter-local agreements were subject to legislative change or termination. Also, the language of the school districts’ contract states as a condition that “[t]his agreement is subject to change or termination by the Legislature.” Thus, the parties expressly provided for the legislature’s actions in their own contract. Therefore, no impairment of contract is created simply because the legislature indeed took the action of changing the agreement.
Gragg v. U.S.D. No. 287, 6 Kan. App. 2d 152, 627 P.2d 335 (1981), dealt with a teacher’s claim that an unlawful modification to his teaching contract occurred when the legislature changed the date for automatic renewal under K.S.A. 72-5412, the continuing contract law. The Gragg court stated:
“ ‘One who makes a contract with a municipal corporation is bound to take notice of limitations on its power to contract and also of the power of the particular officer or agency to make the contract. The municipal corporation cannot in any manner bind itself by any contract which is beyond the scope of its powers, and all persons contracting with the corporation are deemed to know its limitations in this respect.’ ” 6 Kan. App. 2d at 155 (quoting Weil & Associates v. Urban Renewal Agency, 206 Kan. 405, Syl. ¶ 8, 479 P.2d 875 [1971]).
This rule would apply to multiple “municipal corporations” contracting with each other, such that they cannot bind themselves by a contract in a manner that is beyond the scope of their powers. In the case before us, the Kansas Constitution and K.S.A. 72-8230 limit USD 443’s ability to enter into an interlocal agreement because both the Kansas Constitution and the statute provide for continuous legislative modification or termination. Thus, the legislature not only had the right to amend K.S.A. 72-8230, but USD 443 had notice that the legislature had this right.
In conclusion, the 1987 amendment to K.S.A. 72-8230 does not violate Art. I, § 10 of the United States Constitution by making USD 443’s interlocal agreement retroactively perpetual in duration, unless a withdrawal is approved by the State Board as being in the best interests of the member school districts and the State as a whole in providing special education services.
USD 443 argues that the 1987 amendment to K.S.A. 72-8230 denied it substantive due process and equal protection because freedom of contract is a right protected under die Fifth and Fourteenth Amendments. USD 443 further asserts that this court should analyze the constitutionality of the 1987 amendment using the strict scrutiny test. Application of strict scrutiny requires the State to show a compelling State interest for the discriminating legislation and that the challenged legislation is narrowly tailored to meet that compelling interest.
USD 443’s argument for application of the strict scrutiny test is fundamentally flawed. The strict scrutiny test applies to suspect categories and fundamental rights. USD 443 cites Manhattan Buildings, Inc. v. Hurley, 231 Kan. 20, 643 P.2d 87 (1982), as support that freedom of contract is a fundamental right. The Hurley court acknowledged that freedom of contract is a protected right, but not an absolute right. 231 Kan. at 28. The appropriate test to analyze whether the 1987 amendment to the statute violates USD 443’s Fifth and Fourteenth Amendment rights by interfering with its freedom of contract is whether the contested legislation bears a rational relationship to a legitimate State interest. See Jurado v. Popejoy Constr. Co., 253 Kan. 116, 123, 853 P.2d 669 (1993). Thus, the question becomes whether the 1987 amendment making interlocal agreements perpetual unless a district satisfies the State Board that its withdrawal from the interlocal is in the best interests of the contracting school districts and the State as a whole, bears a rational relationship to accomplishing a legitimate State interest.
The. State clearly has not only a legitimate but a compelling interest in providing special education services to exceptional children. The 1966 amendments to the education provisions of the Kansas Constitution and the legislative history behind the constitutional amendments illustrate the overwhelming State interest in education. USD 443 argues that the 1987 amendment is not reasonably or rationally related to the objective of providing special education services and violates its due process and equal protection rights, even under the rational basis analysis.
During hearings on H.B. 2443 and H.B. 2482, which proposed the 1987 amendment, the House Committee on Education heard testimony from various individuals involved in some way with education in Kansas. Olan Burnett, on behalf of USD 501, “encouraged the committee to vote favorably on both HB 2443 and HB 2482, saying there’s an adverse effect on any of the other districts statewide anytime there’s a breakup of a coop and additional staff has to be employed.” (House Committee on Education Minutes, March 2, 1987, p. 2.) Don Nigus, on behalf of the High Plains Education Cooperative, stated that both bills “would help limit and put a lid on some of the funding of special education.” (House Committee on Education Minutes, March 2,1987, p. 2.) Kenneth Brendt, on behalf of Schools for Quality Education,
“presented data related to special education cooperatives as of March 1986. . . . He supported HB 2443 and HB 2482 saying these bills will get the State Board of Education to set up quality and efficient standards that organizations must meet to update categorical funding approval. These standards and approved process are extremely important to get a handle on the rising costs of special education.” (House Committee on Education Minutes, March 2,1987, p. 2.)
As noted earlier, Gary Bishop, Director of SKACD, spoke in favor of the bills, noting the number of Special Education administrative units is increasing. (House Committee on Education Minutes, March 2, 1987, p. 2.)
The testimony regarding the justification for passage of the bills leading to the 1987 amendment supports a finding that it was a reasonable method to attain the legitimate State objective of providing the best special education services at the most economical cost to the State, the school districts, and the taxpayers. Further, the 1987 amendment is reasonably related to the State’s compelling interests in education because it does not categorically prevent a school district from withdrawing from an interlocal, but mandates that before a school district may withdraw, the State Board must find that such a withdrawal is in the best interests of the cooperating school districts as well as the State as a whole in providing special education services.
The district court ruled that it would not consider whether the 1987 amendment to K.S.A. 72-8230 violated the Kansas Constitution because USD 443 had failed to specifically allege the state constitutional issue in its original petition and brief for judicial review, and, therefore, the issue was not properly before the court. “Since administrative boards and agencies . . . may not rule on constitutional questions, the issue of constitutionality must be raised when the case is on appeal before a court of law.” In re Residency Application of Bybee, 236 Kan. 443, 449, 691 P.2d 37 (1984). See Zarda v. State, 250 Kan. 364, 826 P.2d 1365, cert. denied 504 U.S. 973 (1992). Specifically, the court stated in its memorandum opinion and entry of judgment that “it should be made clear that Petitioner/Appellant did not directly challenge the 1987 amendment on State constitutional grounds in its Petition although it was free to do so and probably was fairly required to do so to obtain review of such a complex and important issue.”
In University of Kansas v. Department of Human Resources, 20 Kan. App. 2d 354, Syl. ¶ 3, 887 P.2d 1147 (1995), the court stated that “K.S.A. 77-614(b) provides that a petition for judicial review of agency actions shall include the petitioner’s reasons for believing that relief should be granted and a request for relief, specifying the type and extent of relief requested.” Upon examining the record as a whole, USD 443 did not specifically raise the state constitutional issue in its petition for judicial review. USD 443 raised the issue in its reply brief to the trial court. USD 443 argues that under the constitutional language of Art. 6, §§ 2 and 5, the State Board’s authority is limited to “general supervision” over the exercise of powers by local school districts and that by the enactment of the 1987 amendment, the legislature attempted to establish in the State Board powers well beyond its general supervisory powers enunciated in the Kansas Constitution.
The district court should not have dismissed the state constitutional issue because the KJRA applies to the actions of the State Board as a State agency not specifically exempted from the KJRA. K.S.A. 77-603(a). One of the statutory reasons in which a district court shall grant an appealing party relief from the actions of an agency is that “[t]he agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied.” K.S.A. 77-621(c)(1). More importantly, the general rule is qualified by the following exception:
“The constitutionality of a statute should be considered in any action where it is necessary in order to determine the merits of the action or where the issues cannot be intelligently decided without doing so, notwithstanding the failure of the parties to raise the constitutional question, failure to plead the question, or failure to present the question to the trial court.” [Citation omitted.]’ ” In re Marriage of Soden, 251 Kan. 225, 231, 834 P.2d 358, cert. denied 506 U.S. 1001 (1992).
We note that USD 443 raised the issue (in a vague way) before the hearing panel and again in its trial reply brief. The trial judge was fully justified in holding that the issue was not properly raised. However, we hold it is necessary to consider the state constitutional claim in order to determine the merits of the action.
“Interpretation of a statute is a question of law, and our review is unlimited.” In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997). Also, “[w]hen determining a question of law, this court is not bound by the decision of the district court.” Memorial Hospital Ass’n, Inc. v. Knutson, 239 Kan. 663, 668, 722 P.2d 1093 (1986). Further,
“A statute is presumed constitutional and all doubts must be resolved in favor of its validity. If there is any reasonable way to construe a statute as constitutionally valid, the court must do so. A statute must clearly violate the constitution before it may be struck down. This court not only has the authority, but also the duty, to construe a statute in such a manner that it is constitutional if the same can be done within the apparent intent of the legislature in passing the statute. Peden v. Kansas Dept. of Revenue, 261 Kan. 239, Syl. ¶ 2, 930 P.2d 1 (1996), cert. denied 137 L. Ed. 2d 1029 (1997).
USD 443 claims that its constitutional rights to equal protection and due process of law under § 1 of the Kansas Constitution Bill of Rights have been violated by the 1987 retroactive amendment.
§ 1 of the Kansas Constitution Bill of Rights provides: “All men are possessed of equal and inalienable natural rights, among which are life, liberty, and the pursuit of happiness.” The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution “finds its counterpart in Sections 1 and 2 of the Bill of Rights of the Kansas Constitution.” State ex rel. Tomasic v. City of Kansas City, 237 Kan. 572, Syl. ¶ 12, 701 P.2d 1314 (1985).
USD 443 makes the sweeping argument that the 1966 change to Art. 6, § 5 of the Kansas Constitution changed the status of local school boards from subordinate state agencies totally controlled by the legislature, to school boards vested with the responsibility of local control of maintenance, development, and operation of local public schools under their jurisdiction. Thus, USD 443 contends that, as a local school board, it has the right to contract with other school boards to accomplish the responsibilities vested in it. Further, USD 443 asserts that Art. 6, § 5 of the Kansas Constitution changes the status of local school boards such that the constitutional rights of equal protection and due process should apply to them and such rights should be recognized by the courts.
The powers and duties of local school boards under Art. 6, § 5 of the Kansas Constitution are not self-executing. In U.S.D. No. 229 v. State, 256 Kan. 232, 885 P.2d 1170 (1994), the court explained:
“In U.S.D. No 380 v. McMillen, 252 Kan. 451, 845 P.2d 676 (1993), at issue was the apparent conflict between Article 6, §§ 1 and 5. The former places responsibility for maintaining public schools with the legislature, while the latter places it with the locally elected school boards. The challenged statute (K.S.A. 72-5443) provides for a hearing panel to make a final decision on the firing of a teacher, subject to judicial review. In upholding the statute, we said:
‘It appears clear that the legislature under § 1 of Article 6 has the broad duty of establishing the public school system. The local school board’s duties under § 5 of Article 6 are not self-executing but are dependent upon statutory enactments of the legislature.. ..’” 256 Kan. at 252-53.
In U.S.D. 229, the court affirmed that McMillen was controlling on the issue that a school board’s duties under § 5 of Article 6 are not self-executing. 256 Kan. at 253. Thus, the State Board declares that a district has the power to contract only “when authorized by law.” Kan. Const. Art. 6, § 5. Further, it contends, this grant of authority is statutorily made, and Art. 6, § 5 specifically states that when school boards enter into agreements for cooperative operation and administration of educational programs, such agreements “shall be subject to change by the legislature.” Consequently, the State Board avers that USD 443’s argument that its authority to contract has been unconstitutionally impaired fails because it only has authority to contract under the constitutional mandate that while such agreements, or contracts, may be made, they shall be subject to the legislature’s authority to limit, change, or even terminate an agreement. Additionally, USD 443’s contract with the other districts in 1986 stated that “[t]his agreement is subject to change or termination by the legislature.”
Art. 6, § 5 of the Kansas Constitution provides for local public schools and states:
“Local public schools under the general supervision of the state board of education shall be maintained, developed and operated by locally elected boards. When authorized by law, such boards may make and carry out agreements for cooperative operation and administration of educational programs under the general supervision of the state board of education, but such agreements shall be subject to limitation, change or termination by the legislature.”
USD 443 argues that this language of the Kansas Constitution is permissive, not mandatory, in permitting school boards to enter into contracts with other schools to provide educational services. Therefore, USD 443 concludes that because it has the right to decide whether to enter into cooperative agreements, it has the implicit right to withdraw from such contracts based on the provisions of die contract itself. Extending this logic, it asserts that its right to enter into and withdraw from such contracts is vested in USD 443 by virtue of the Kansas Constitution and such a vested right cannot be legislatively withdrawn without due process and equal protection of the law.
Art. 6, § 5 of the Kansas Constitution provides that local school boards “may make and carry out agreements for cooperative operation and administration of educational programs.” If the constitutional provision provided nothing further, USD 443’s contention might have merit. The continuation of this phrase, however, strips any legitimacy from USD 443’s argument that the Kansas Constitution provides it with a vested right to enter and withdraw from cooperative agreements. The right to make and carry out cooperative agreements is qualified by “general supervision of the state board of education.” Most importantly, the constitutional provision which USD 443 argues provides it with a vested right, specifically states that “such agreements shall be subject to limitation, change or termination by the legislature.” (Emphasis added.) Therefore, USD 443 does not have a vested right to enter and withdraw from cooperative agreements such as SKACD. A right is not vested if it can be terminated, limited, or changed at any time. USD 443 had the power to enter into an interlocal agreement, but the same constitutional phrase allowing such an agreement is premised on the foundation that the legislature has the power to limit, change, or amend the agreement.
In this case, there could not have been an expectation that the power to enter or dissolve an agreement was absolute. A vested right means that there is an expectation of permanency. In Stoldt v. City of Toronto, 234 Kan. 957, 964, 678 P.2d 153 (1984), the court stated that “only vested rights have a sufficient property interest to require due process protection.” In Resolution Trust Corp. v. Fleischer, 257 Kan. 360, 364, 892 P.2d 497 (1995), this court stated that “[o]ne commentator has aptly noted: ‘[I]t has long been recognized that the term “vested right” is conclusory — a right is vested when it has been so far perfected that it cannot be taken away by statute.’ ” (Citing Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, 73 Harv. L. Rev. 692, 696 [1960].) The Resolution Trust Corp. court cited State, ex rel., v. School District, 163 Kan. 650, 185 P.2d 677 (1947), as an example wherein the court found that there are no vested rights in the existence of a school district. 257 Kan. at 365.
The Kansas Constitution does not grant local school districts any inherent absolute power. Art. 6, § 5 grants constitutional authority for locally elected school boards to maintain, operate, and develop local public schools. This power is qualified, however, in that such authority exists only “under the general supervision of the state board of education.” Similarly, a local school board’s capability to make and carry out agreements for cooperative operation and administration of educational programs is not an absolute power. Its authority to make and carry out such agreements is subject to the following restrictions: “[w]hen authorized bylaw,” “under the general supervision of the state board,” and “such agreements shall be subject to limitation, change or termination by the legislature.”
The State Board’s role in the governance of local school districts, however, is established by constitutional fiat. Art. 6, § 2 (a) of the Kansas Constitution states:
“The legislature shall provide for a state board of education which shall have general supervision of public schools, educational institutions and all the educational interests of the state, except educational functions delegated by law to the state board of regents. The state board of education shall perform such other duties as may be provided by law.”
The next question is whether the legislature could constitutionally grant the State Board the power to approve or disapprove a school district’s withdrawal from an interlocal agreement. The legislative history of the 1966 Amendments to the Education Article of the Kansas Constitution suggests that the State Board has broad authority and that such a grant of power is within the scope of the constitutional provision establishing a State Board of Education.
In 1965, the Education Advisory Committee recommended the new Article 6 to the Kansas Constitution, and the voters adopted the present version of Article 6 in 1966. The Advisory Committee studied “educational problems and procedures in the process of drafting the amendment and statutory policy recommendations to implement it.” Kansas Legislative Council, Implementation of the Education Amendment-A Report of the Education Advisory Corrib mittee to the Committee on Education on Proposal No. 45, p. vi (Publication No. 260, November 1966). The Advisory Committee stated:
“The new article gives constitutional status, for the first time, to an elected State Board of Education of 10 members, an appointed State Board of Regents of nine members, and to local Boards of education. At the same time, the amendment reaffirms the inherent powers of the legislature — and through its members, the people — to shape the general course of public education and provide for its financing.” Report of the Education Advisory Committee, p. vii (Publication No. 260, November 1966).
In State, ex rel., v. Board of Education, 212 Kan. 482, Syl. ¶ 1, 511 P.2d 705 (1973), the court declared that “[t]he adoption by the people of this state of the 1966 amendment to article 6 of the Kansas Constitution vested broad powers of supervision in the state board of education.” The Board of Education court held that the portion of article 6, § 2 (a), which granted “the state board of education authority to exercise general supervision of the public schools, educational institutions and educational interests of the state ... is self-executing in effect.” 212 Kan. 482, Syl. ¶ 6. Also, “[w]here a constitutional provision is self-executing the legislature may enact legislation to facilitate or assist in its operation, but whatever legislation is adopted must be in harmony with and not in derogation of the provisions of the constitution.” 212 Kan. 482, Syl. ¶ 7. Further,
“[t]he statutes of this state, as well as provisions of the constitution, contemplate that the state board of education shall have authority to supervise the public schools and to adopt regulations for that purpose, while local boards of education are to provide for the government and operation and maintenance of the public schools subject to such supervision.” 212 Kan. 482, Syl. ¶ 8.
The 1966 amendments to Art. 6 of the Kansas Constitution vested broad powers of supervision in the State Board, and given the process the State Board used to decide whether to approve or disapprove USD 443’s withdrawal from SKACD, it cannot be said that the State Board has usurped its constitutional power in this case. The State Board first appointed a hearing panel delegated with the task of conducting an extensive hearing and making a recommendation to the State Board based on the evidence presented. The sufficiency of that evidence is not challenged on appeal.
In conclusion, USD 443 has not shown that the State Board usurped the power granted to it by the Kansas Constitution. The State Board does not have the authority to automatically reject a request to withdraw, but must conduct a hearing whereby opposing sides may present evidence on behalf of their case. Further, the State Board does not have unlimited power to decide the approval or disapproval; it must use the criteria set out by the legislature in the statute.
In summary, the Kansas Constitution grants local school boards the authority to take certain actions, but such power is limited and subject to the oversight of either the legislature and/or the State Board. USD 443 entered into the interlocal agreement with a provision in its contract that the agreement could be changed or terminated by the legislature. Likewise, even before the 1987 amendment was promulgated, K.S.A. 72-8230 provided that interlocal agreements were subject to change and termination by the legislature. Although the 1987 amendment operates retroactively, it passes the Bott test and, thus, is not unconstitutional due to the retroactive provision. Likewise, given the legislative history of the 1966 amendment to the Education Article of the Kansas Constitution, the legislature did not grant the State Board constitutionally prohibited power when it enacted the 1987 amendment to K.S.A. 72-8230.
Affirmed. | [
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On April 19, 1996, petitioner Charles E. Hill was disciplined by suspension for 2 years, effective October 16, 1995, the date of the report of the hearing panel of the Kansas Board for Discipline of Attorneys, and ordered to pay the costs and furnish proof of compliance with Supreme Court Rule 218 (1998 Kan. Ct. R. Annot. 246). In re Hill, 259 Kan. 877, 915 P.2d 49 (1996).
On March 3, 1998, petitioner filed a petition for reinstatement to the practice of law, confirming that he had complied with the conditions entered by this court on April 19, 1996. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219 (1998 Kan. Ct. R. Annot. 256). On August 26,1998, a hearing was had before a panel of the Board.
On November 17, 1998, the panel filed its report, setting out the circumstances leading to petitioner’s suspension, a summary of the evidence presented, and the panel’s findings and recommendations. The panel is convinced that petitioner’s depression is in full remission and that he is fully rehabilitated and capable of practicing law. The panel unanimously recommended that petitioner be reinstated to the practice of law in Kansas. The report being favorable to petitioner, nothing further is required of petitioner and, pursuant to Supreme Court Rule 219(d), the matter is deemed submitted for consideration by this court. The panel further recommended that petitioner’s reinstatement be conditioned upon the following: (1) Petitioner making up all continuing legal education requirements for the period of time his license has been suspended and (2) petitioner obtaining malpractice insurance. The panel also recommended that costs be assessed against petitioner in an amount to be certified by the Disciplinary Administrator. The Disciplinary Administrator supports petitioner’s reinstatement to the practice of law.
This court, after carefully considering the record and having considered the recommendations of the hearing panel, finds that petitioner should be reinstated to the practice of law. The court further finds that petitioner be required to comply with Supreme Court Rule 807(b) (1998 Kan. Ct. R. Annot. 515) and that petitioner obtain malpractice insurance providing coverage satisfactory to the Disciplinary Administrator.
It Is Therefore Ordered that Charles E. Hill be and he is hereby reinstated to the practice of law in the state of Kansas, conditioned upon his complying with Supreme Court Rule 807(b) and obtaining malpractice insurance. Upon the petitioner’s filing proof of compliance with the above conditions, the Clerk of the Appellate Courts is directed to enter petitioner’s name upon the roster of attorneys engaged in the practice of law in Kansas.
It Is Further Ordered that this order shall be published in the Kansas Reports and that the costs herein shall be assessed to petitioner.
It Is So Ordered this 11th day of December, 1998. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the State from the trial court’s order converting defendant Johnny C. Sisk’s 10-year-to-life sentence for second-degree murder to 36 months under the sentencing guidelines.
The State raises a number of issues. We believe the case can be decided on the sole issue of whether defendant’s sentence for a felony DUI was a prison sentence as contemplated by K.S.A. 1993 Supp. 22-3717(f). Defendant’s situation fell within the small window (9 months) during which K.S.A. 1993 Supp. 22-3717(f) existed. That statute provided:
“(f) If an inmate is sentenced to prison for a crime committed after July 1, 1993, while on parole or conditional release for a crime committed prior to July 1, 1993, the old sentence shall be converted into a determinate sentence and will run consecutive to the new sentence as follows:
“(1) Twelve months for class C, D or E felonies or the conditional release date whichever is shorter;
“(2) 36 months for class A or B felonies or the conditional release date whichever is shorter.”
The statute became effective July 1, 1993, but the legislature amended it in 1994. The amendment deleted all the language in K.S.A. 1993 Supp. 22-3717(f), effective March 24, 1994. The amendment would not allow defendant’s sentence to be converted. The statute in effect when the trial court converted his 10-year-to-life sentence to 36 months would seem to mandate a sentence conversion.
Defendant was sentenced June 3, 1979, and at some unknown time was paroled from prison. (We note that as of October 4, 1994, defendant had served 15 years, 4 months, and 11 days on his sentence.) While on parole in November 1993, he was charged with felony DUI because he had two or more prior DUI convictions. By March 12, 1994, his parole had been revoked, and he had been returned to prison. He filed an application in the pending felony DUI case under the Uniform Mandatory Disposition of Detainers Act, requesting that the pending felony DUI be dismissed or that he be tried.
In July 1994, defendant entered a plea of guilty to felony DUI, was sentenced to 92 days in the county jail, and given credit for time served. The record before us does not reveal whether all or part of the 92 days served was in the county jail or the state prison system.
On January 15, 1997, some 2Vz years later, defendant filed a motion to correct an illegal sentence, arguing that the trial court was required by K.S.A. 1993 Supp. 22-3717(f) to convert his indeterminate sentence of 10 years to life to a term of 36 months.
The trial court then converted his sentence to 36 months pursuant to the sentencing guidelines. This appeal by the State followed.
Courts have jurisdiction to correct an illegal sentence at any time. K.S.A. 22-3504; State v. Vanwey, 262 Kan. 524, 527, 941 P.2d 365 (1997); State v. Ruff, 252 Kan. 625, 628, 847 P.2d 1258 (1993). The issue of whether a criminal sentence is illegal is a question of law. State v. Reed, 23 Kan. App. 2d 661, Syl. ¶ 1, 934 P.2d 157, rev. denied 262 Kan. 968 (1997). “Interpretation of a statute is a question of law. An appellate court’s review of a question of law is unlimited.” State v. Robinson, 261 Kan. 865, Syl. ¶ 1, 934 P.2d 38 (1997). Further, the district court’s conclusions regarding a question of law are not binding on this court. Bankes v. Simmons, 265 Kan. 341, 349, 963 P.2d 412 (1998).
In Carmichael v. State, 255 Kan. 10, 16, 872 P.2d 240 (1994), the court stated:
"We have defined an “ ‘illegal sentence’ [as] either a sentence imposed by a court without jurisdiction; a sentence which does not conform to the statutory provision, either in the character or the term of the punishment authorized; or a sentence which is ambiguous with respect to the time and manner in which it is to be served.” ’ ” (Quoting State v. Scherzer, 254 Kan. 926, Syl. ¶ 1, 869 P.2d 729 [1994].)
Further standards of appellate review applicable to this case are:
“When a statute is plain and unambiguous, the appellate courts will not speculate as to the legislative intent behind it and will not read such a statute so as to add something not readily found in the statute. [Citation omitted.]” State v. Lawson, 261 Kan. 964, 966, 933 P.2d 684 (1997).
“The legislature is presumed to intend that a statute be given a reasonable construction, so as to avoid unreasonable or absurd results.” State v. Le, 260 Kan. 845, Syl. ¶ 4, 926 P.2d 638 (1996).
“The general rule is that a criminal statute must be strictly construed in favor of the accused. The rule of strict construction, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute.” State v. Taylor, 262 Kan. 471, Syl. ¶ 5, 939 P.2d 904 (1997).
Criminal statutes and penalties in effect at the time of a criminal offense are controlling. State v. Mayberry, 248 Kan. 369, Syl. ¶ 15, 807 P.2d 86 (1991). The State contends that defendant does not fall within the purviews of K.S.A. 1993 Supp. 22-3717(f) because he was sentenced to county jail time rather than to prison for the felony DUI, and K.S.A. 1993 Supp. 22-3717(f) does not apply unless a defendant receives a prison tenn. The State correctly notes the statute is clear on its face that “[i]f an inmate is sentenced to prison for a crime committed after July 1, 1993, while on parole or conditional release for a crime committed prior to July 1, 1993, the old sentence shall be converted . . . . ” (Emphasis added.) K.S.A. 1993 Supp. 22-3717(f).
The journal entry covering the sentencing states: “The defendant be sentenced to the custody of the (Secretary ef Corrections) (County Jail) to serve a sentence of ... 92 days (Seer of Corr.) (County Jail).”
A “prison” is defined in K.S.A. 1993 Supp. 21-4703(s) as a “facility operated by the Kansas department of corrections.” The State reasons that since the county jail is not under the control of the Kansas Department of Corrections, defendant was not sentenced to prison and consequently does not meet the requirements for the application of K.S.A. 1993 Supp. 22-3717(f). Therefore, he was not eligible for conversion of his second-degree murder conviction.
Black’s Law Dictionary 1194 (6th ed. 1990), defines “prison” in pertinent part:
“A state or federal correctional institution for incarceration of felony offenders for terms of one year or more. The words ‘prison’ and ‘penitentiary’ are used synonymously to designate instructions for the imprisonment of persons convicted of the more serious crimes, as distinguished from reformatories and county or city jails.”
The legislative intent clearly expressed in adopting K.S.A. 1993 Supp. 22-3717(f) was that the trial court should convert a sentence pursuant to the sentencing guidelines when a person on parole “was sentenced to prison.” Here, defendant was sentenced to the county jail, not to prison.
We hold that defendant’s sentence to the county jail for felony DUI did not trigger K.S.A. 1993 Supp. 22-3717(f), and the trial court erred in converting defendant’s sentence to 36 months. The trial court’s order doing so is reversed and the 10-year-to-life sentence is reinstated.
Reversed. | [
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The opinion of the court was delivered by
Davis, J.:
The plaintiffs obtained a $2,000,000 judgment against a tortfeasor as a result of a collision in Kansas. They sought, through garnishment action, to collect this amount under the underinsurance provisions of the insurer’s South Dakota policy. The trial court determined that South Dakota law, not Kansas law, applied and granted the plaintiffs’ summary judgment for $300,000. The plaintiffs appeal. The insurer cross-appeals, raising what is the dispositive issue in this case: lack of jurisdiction in garnishment.
The decedent, Terry L. Ray, was killed in a motor vehicle accident in Republic County while in the course of his employment as a truck.driver for Direct Transit, Inc., (Direct Transit). He was survived by his wife, Denise I. Ray, and two minor children, Lisa M. Ray and Billie J. Ray (the plaintiffs). The driver of the other vehicle was John W. Caudill, a Kansas resident. At the time of .the accident, Liberty Mutual Fire Insurance Company (Liberty), through fleet coverage, provided insurance on the tractor trailer Ray was driving as well as other trucks operated by Direct Transit in interstate commerce. The trucks operated in interstate commerce pursuant to the International Registration Plan (IRP). Under the IRP, a vehicle in interstate commerce is registered in a base jurisdiction. Thereafter, the vehicle is allowed to operate in interstate commerce in certain other jurisdictions which are members of the IRP, with the registration fees being apportioned according to milage traveled in those jurisdictions. The tractor trailer operated by Ray was titled, licensed, and registered in South Dakota as its base jurisdiction.
The plaintiffs filed a wrongful death action against Caudill. Caudill was insured by State Farm with a maximum coverage of $50,000. Liberty, as the underinsured motorist carrier for Direct Transit, was given notice of the suit and was alerted to the fact that Caudill maintained only $50,000 in coverage. Liberty advised the plaintiffs that it had no liability under its underinsured motorist coverage.
The plaintiffs and Caudill agreed to a tentative settlement for an amount of $2,000,000. Before finalizing the agreement and before judgment, Liberty was notified of the agreement pursuant to K.S.A. 40-284(f) and given the opportunity to intervene in the suit or to substitute payment. Liberty declined to do either. The plaintiffs and Caudill executed their agreement and judgment was entered in favor of the plaintiffs for an amount of $2,000,000. State Farm, on behalf of Caudill, paid the $50,000 policy limits.
Within their wrongful death action, the plaintiffs then filed a garnishment against Liberty for underinsured motorist coverage based upon their $2,000,000- judgment. Liberty responded with a motion to dismiss, arguing that the district court lacked jurisdiction to consider underinsured motorist coverage in a garnishment action. This motion was denied.
The plaintiffs filed a motion for summary judgment in the garnishment action. Before the trial court and now on appeal, they contend that under K.S.A. 1998 Supp. 8-1,101, vehicles traveling in Kansas, even though not registered in Kansas, are deemed to be registered in Kansas under the IR.P. The plaintiffs point out that insurance policies delivered or issued for delivery in the state for any motor vehicle registered or principally garaged in the state must, according to K.S.A. 40-284, include underinsured motorist coverage equal to the policy’s liability limits. They argue that Liberty’s underinsurance coverage is, therefore, the same as its liability coverage: $2,000,000.
The trial court agreed with Liberty’s argument that K.S.A. 40-284 was not applicable to the case and concluded that the under-insurance policy limits in South Dakota would apply. The court, therefore, awarded summary judgment to the plaintiffs in the amount of $300,000, comprised of the $350,000 South Dakota policy limit minus the $50,000 the plaintiffs had received from State Farm on behalf of Caudill. The plaintiffs now appeal.
In its cross-appeal, Liberty contends that the trial court had no jurisdiction to consider the garnishment action and, thus, this court has no jurisdiction. Liberty argues that underinsured motorist coverage is first-party coverage, owed to the judgment creditors by their own insurance company, not coverage owed to the judgment debtor.
Discussion and Analysis
A proceeding in garnishment is a means of attachment by which monies, credits, or effects of a debtor may be reached in the hands of another person. Land Manufacturing, Inc. v. Highland Park State Bank, 205 Kan. 526, 528, 470 P.2d 782 (1970). K.S.A. 60-716 provides:
“As an aid to the enforcement of the judgment, an order of garnishment may be obtained and shall be issued by the clerk of the court. . . . Such written direction shall designate whether the order of the garnishment is to be issued for the purpose of attaching earnings or for the purpose of attaching other property of the judgment debtor.” (Emphasis added.)
Garnishment is an extraordinary remedy and may be resorted to only under the conditions and procedure expressly authorized by statute. Reed v. Ziegler, 175 Kan. 635, 638, 265 P.2d 855 (1954).
The $2,000,000 judgment entered in favor of the plaintiffs in the wrongful death action was against Caudill. He is the judgment debtor. In a garnishment proceeding, the creditor, the plaintiffs in this case, takes the place and stands in the shoes of its debtor, Caudill, taking only what he could enforce against the third-party garnishee. See Harpster v. Reynolds, 215 Kan. 327, 330, 524 P.2d 212 (1974).
However, uninsured and underinsured motorist coverage is first-party coverage owed by the insurer to its insured. Liberty’s policy of insurance in this case covers Terry Ray and owes nothing to Caudill. The plaintiffs, as judgment creditors, cannot recover in garnishment against Liberty unless the judgment debtor could do so. Lechleitner v. Cummings, 160 Kan. 453, 163 P.2d 423 (1945). All parties agree that Liberty’s obligation is to the judgment creditor, the plaintiffs, not the judgment debtor.
In Baron v. Villareal, 100 Ill. App. 2d 366, 371-74, 241 N.E.2d 227 (1968), the court found that the plaintiff, having gained a judgment against the defendant, could not proceed against his own uninsured motorist carrier by way of garnishment because the carrier had no liability to the defendant under the policy. The court noted that a claim by a judgment creditor against a garnishee must be one that the judgment debtor could have maintained. 100 Ill. App. 2d at 373. Baron is cited by Couch on Insurance for the following proposition:
“Once the insured has obtained a judgment against the uninsured motorist as required prior to recovery under a UM statute, the insured’s remedy against the UM insurer is by way of a separate action against the insurer to enforce the specific rights bestowed upon the insured by the policy; the insured cannot proceed against the UM insurer by way of garnishment of the judgment, since the UM insurer is not, in fact, the tortfeasor’s insurer.” 9 Couch on Insurance § 124:21 (3d ed.).
Although the above references concern uninsured motorist coverage, the same logic applies to underinsured motorist coverage. See 9 Couch on Insurance § 122:3 (stating that underinsured motorist coverage is a variant of uninsured motorist coverage). Therefore, it is clear that the plaintiffs may not proceed against Liberty under a garnishment action, and the trial court erred in finding that it had jurisdiction to entertain the garnishment proceeding.
The plaintiffs argue that our decision in Haas v. Freeman, 236 Kan. 677, 693 P.2d 1199 (1985), expresses a policy of resolving all coverage questions in one action and, therefore, favor the resolution of the underinsurance coverage question within this action. However, unlike Haas, the question in this case involves a garnishment proceeding which is governed by K.S.A. 60-716.
Haas did not directly address the issue in this case. Haas recognized the earlier conclusions of this court in Winner v. Ratzlaff, 211 Kan. 59, 65, 505 P.2d 606 (1973), that a plaintiff may include his or her own insurance company in a suit against the tortfeasor when there is an issue of uninsured motorist coverage. 236 Kan. at 680. Despite this court's statement in Winner that multiple litigation is never desirable and there is a public interest economically in avoiding it wherever possible to do so in a fair and workable manner, Haas noted that there is a distinction between uninsured and underinsured coverage. We noted in Mitchell v. Liberty Mut. Ins. Co., 265 Kan. 556, 563, 961 P.2d 1235 (1998), that because of the distinct features of an underinsured motorist claim, “substantial justice” may not be accomplished in a single lawsuit and such claims “must allow the possibility of multiple litigation to preserve the rights of all parties involved.” See Guillan v. Watts, 249 Kan. 606, 616, 822 P.2d 582 (1991). We were not dealing with a garnishment in either Haas or Mitchell. We are not at liberty to ignore the lack of a statutory basis for garnishment in the present action. As noted above, garnishment is an extraordinary remedy and may be resorted to only under the conditions and procedures expressly authorized by statute.
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The opinion of the court was delivered by
Davis, J.:
This is a malicious prosecution action growing out of a Kansas antitrust lawsuit filed by Roger McCartney, d/b/a Stock-man’s Livestock Exchange, and Charlene McCartney (hereinafter referred to collectively as the McCartneys) against Farmers Livestock Commission Co., Inc., Marvin Bergstrom, Marilyn Bergstrom, Ben Dreesen, and Karen Dreesen (hereinafter referred to collectively as the FLCC parties) in the District Court of Republic County, Kansas. The underlying antitrust action terminated in favor of the FLCC parties by summary judgment, which judgment was affirmed in an unpublished opinion of the Kansas Court of Appeals, McCartney v. Farmers Livestock Comm’n, No. 70,778, filed October 28, 1994. This court denied the McCartneys’ petition for review.
The FLCC parties then filed a malicious prosecution action against the McCartneys. Summary judgment was entered by the trial court in favor of the McCartneys on the basis that probable cause existed for the filing of the antitrust action by the Mc-Cartneys. The issue we will resolve is whether on undisputed facts the trial court was correct in its determination that probable cause existed for the filing of the underlying antitrust action.
Dr. McCartney, one of the plaintiffs in the underlying action, is the owner of the sale bam in Belleville, Kansas. He purchased the sale bam in 1985. Don W. Noah and his law firm, Noah & Harrison, P.A., were retained by Dr. McCartney in connection with the underlying antitrust action.
Marvin and Marilyn Bergstrom and Ben-and Karen Dreesen are the owners of the Farmers Livestock sale bam in Washington, Kansas. They acquired the sale bam in a bankruptcy sale in 1984. Since that time they have operated the sale bam.
After 1985, the number of livestock being sold through the McCartneys’ sale bam decreased. The McCartneys became concerned that they were losing business to the FLCC parties’ sale bam and suspected that the FLCC parties were providing free and below-cost tracking for sellers to get their cattle to the bam. While providing free or below-cost tracking to sellers is not illegal, providing free or below-cost tracking on a discriminatory basis is a violation of the Packers and Stockyards Act of 1921, 7 U.S.C. § 181 et seq. (1994). The McCartneys knew that in 1985 the Packers and Stockyards Administration had issued a warning letter advising the FLCC and its owners to cease and desist from awarding discriminatory free or below-cost tracking.
In 1986, the McCartneys had made arrangements with a consignor, Eric Anderson, to purchase his cattle through his sale bam, Stockman’s Livestock Exchange. The McCartneys became concerned when Anderson advised that the FLCC parties had contacted him and that he would be selling his cattle through the FLCC parties’ sale bam.
The McCartneys discussed their concerns with other sale bam operators in the area and those operators supported the Mc-Cartneys’ concerns that the FLCC parties were, offering free or below-cost tracking in order to entice customers. Steve Wemer, the owner of a sale bam in Fairbury, Nebraska, and a client of Lyle Koenig, a Nebraska attorney, had obtained information through one of his field men that the FLCC parties were offering free tracking and kickbacks through a tracking company owned and operated by Adolph Charbonneau, C & C Tracking. Wemer gave this information to Koenig, who then related it to the McCartneys’ attorney, Don W. Noah.
In 1988, the Packers and Stockyards Administration conducted an investigation of the FLCC parties’ operation at the request of the McCartneys. However, no evidence of further violations was found. The head of the Packers and Stockyards Administration office in Lenexa, Kansas, later told the McCartneys that in his opinion, the investigation had been “poorly done.” The Mc-Cartneys complained to the Packers and Stockyards Administration in November 1990, and in 1991 the McCartneys sent letters to U.S. Senator-Bob. Dole complaining that the Packers and Stockyards Administration had not done enough.
In August 1991, the McCartneys sent another letter to Senator Dole regarding the need for a more thorough investigation. This letter was copied to then U.S. Senator Nancy Landon Kassebaum, U.S. Representátive Pat Roberts, Kansas Senator Janis Lee, Kansas Representative Bill Bryant, the editor of the Belleville Telescope, the Kansas Livestock Commissioner, and CBS’s Sixty Minutes.
At the urging of the McCartneys, the Packers and Stockyards Administration instituted another investigation in 1991 of the FLCC parties’ operations. The McCartneys submitted a list to the Packers ánd Stockyards Administration’s investigators, naming 40 farmers, 3 commercial truckers, and 4 farm truckers whom the McCartneys believed had had their trucking costs paid or had received part of their commission back, or both, from the FLCC parties. The investigators randomly interviewed six farmers and discovered one farmer, Dean Anderson, who admitted to having had some of his trucking costs paid by the FLCC parties. The investigation also found another farmer, Francis Baxa, normally had had trucking costs deducted from his sale proceeds by the FLCC parties, but on at least one occasion, no trucking costs had been deducted.
As a result of the 1991 investigation, the Packers and Stockyards Administration issued another warning letter to the FLCC parties:
“During an investigation of Farmers’ business operations, the following violation of the Packers and Stockyards Act was discovered.
“The investigation disclosed that Farmers, for the purpose of inducing certain owners to consign their livestock to the market, provided free transportation of livestock. The Packers and Stockyards Administration considers this an unfair and unjustly discriminatory practice under sections 307 and 312(a) of the Act.
“Enclosed is a copy of the Packers and Stockyards Act. The relevant sections can be found on pages 14 and 18. We trust you will take immediate steps to bring your operation into compliance. If you have any questions, please contact this office.”
In October 1991, Noah was retained by the McCartneys to assist them in obtaining access to the books and records of the FLCC parties’ business in order to uncover what he believed to be a pattern of illegal activity and to bring this activity to an end. The McCartneys told Noah that they noticed the FLCC parties’ sale bam drawing consignors from various locations that were much closer to other sale bams and that many people were telling him it was no secret that the FLCC parties were offering illegal inducements to consignors. The McCartneys also told Noah that they had heard that the free trucking and illegal inducements were buried so deep in the books of the FLCC parties that the Packers and Stockyards Administration would never discover the illegal inducements.
Noah obtained the records from the original Packers and Stockyards Administration investigations and was aware of the cease and desist letters sent to the FLCC parties. He was also aware that the FLCC parties had admitted to offering illegal free tracking in 1985. Through his additional investigation, Noah developed evidence that the FLCC parties had offered free tracking to two other consignors in return for bringing their cattle to the FLCC parties’ sale bam, and that Marvin Bergstrom had reimbursed one of the consignors from his personal farm account. Noah also received information that Brian Larson and his father had received free tracking for their cattle, and, when deposed, Brian Larson admitted that he had gotten a check for $400 from the FLCC parties for tracking expenses.
An investigator for Noah related that when Bergstrom was questioned about providing free tracking, he stated, “I’m not saying I am and I’m not saying I’m not, but free tracking is a part of doing business in this country.” Bergstrom also told the investigator that he knew of a lot of people who were offering free tracking in the area to attract business. Noah felt that these statements were indicative of Bergstrom’s attitude in violating the law.
Noah notified the Packers and Stockyards Administration investigators that he had been told by Gene Heyka that Heyka’s trucking had been paid by the FLCC parties but upon investigation, the investigators did not discover any evidence. In February 1992, the Packers and Stockyards Administration informed Noah and the McCartneys that it did not intend to continue its investigation because it could not find any evidence of free trucking offered by the FLCC parties.
Thereafter, Noah received information from Steve Werner in Nebraska that other consignors in Nebraska were receiving free trucking from the FLCC parties and that in at least one instance, the FLCC parties had guaranteed one of the consignors a minimum price for his cattle, another illegal practice. Noah hired Rex Woods, a certified public accountant, who informed him that if the FLCC parties’ books were correct, he would be able to discover evidence of any illegal inducements made.
On March 26, 1992, Noah filed suit on behalf of the McCartneys against the FLCC parties. The petition alleged three counts: (1) The FLCC parties had formed a trust through a combination of capital, skill, and acts by two or more persons, firms, corporations, or associations of persons to create a monopoly in the sale of livestock in North Central Kansas and South Central Nebraska, in violation of K.S.A. 50-101; (2) the FLCC parties had conspired and combined with other persons, firms, or corporations for the purpose of monopolizing the sale of livestock in North Central Kansas and South Central Nebraska, in violation of K.S.A. 50-132; and (3) the FLCC parties had agreed among themselves, their corporation, and with others to offer certain consignors favorable treatment on commissions while failing to offer other consignors favorable treatment on commissions, and to thereby defraud a portion of the public they are required to serve under the Packers and Stockyards Act, in violation of K.S.A. 50-112.
Noah sent no demand letter to the FLCC parties, nor did he extend to them the opportunity to respond with their version of the facts prior to filing the antitrust suit. See Nelson v. Miller, 227 Kan. 271, 284-85, 607 P.2d 438 (1980). Noah did not do so because he felt that such contact would have been useless.
The FLCC parties filed a motion for summary judgment alleging among other things that the McCartneys had failed to show a conspiracy to monopolize existed between the FLCC parties and any other party. The McCartneys responded, arguing that they were proceeding under two theories. The first of these theories was that a conspiracy to monopolize existed between the FLCC parties and the truckers and consignors who accepted the illegal inducements, or that a conspiracy existed between the individual FLCC parties and their corporation under a “personal stake” exception. The second theory was an “attempt to monopolize” theory, which did not require a conspiracy.
The trial court initially concluded that there was evidence from which a trier of fact could find that the “personal stake” exception had been met. The court also found that no conspiracy to monopolize was necessary under an attempt to monopolize theory. Accordingly, the court denied summary judgment.
The FLCC parties filed a motion for reconsideration, noting that the court had ruled before the time had expired for the FLCC parties to respond. The FLCC parties noted that the McCartneys had brought forth no evidence in support of the independent personal stake exception and further that there was no cause of action for attempt to monopolize under Kansas law.
The court granted the FLCC parties’ motion for reconsideration. The court concluded there was no cause of action under Kansas statutes for an attempt to monopolize, there was no evidence that any of the FLCC parties had an independent personal stake, and neither the consignors who accepted free trucking nor the trucking companies that provided the trucking would qualify as coconspirators under the antitrust cause of action. Accordingly, the court awarded summary judgment to the FLCC parties.
The Court of Appeals affirmed summary judgment, concluding that evidence of a conspiracy or trust between two or more persons or entities must be present in order to proceed under K.S.A. 50-101, K.S.A. 50-112, or K.S.A. 50-132. The Court of Appeals agreed with the trial court that there was no conspiracy shown and that there was no evidence to support application of the independent personal stake doctrine. Finally, the Court of Appeals found that the McCartneys had abandoned their attempt to monopolize argument. A petition for review was denied.
The FLCC parties instituted the present action for malicious prosecution against the McCartneys, Stockman’s Livestock Exchange, and their attorneys, Don W. Noah and Noah & Harrison, and attorney Lyle Koenig of Nebraska. The McCartneys filed a cross-claim against their attorney, Noah, and the law firm of Noah & Harrison, P.A., for legal malpractice in the antitrust case. The legal malpractice cross-claim is the subject of a separate appeal to this court.
After extensive discovery, the McCartneys filed a motion for summaiy judgment on the malicious prosecution claim. The trial court granted summary judgment, concluding that there was no genuine issue of fact on the question of probable cause and that the McCartneys, Stockman’s Livestock Exchange, and their attorneys had a sufficient basis in law amounting to probable cause for filing the antitrust lawsuit. In so doing, the trial court noted the Kansas antitrust statutes relied upon by the McCartneys were broad and undeveloped and, therefore, a colorable claim existed.
Because the malpractice cross-claim filed by the McCartneys against Noah and Noah & Harrison still remained to be decided, the trial court certified the summary judgment on the malicious prosecution claim as a final judgment under K.S.A. 60-254(b). The Court of Appeals accepted the appeal, and we transferred the appeal to this court. Our jurisdiction is based upon K.S.A. 20-3018(c).
Discussion and Analysis
The FLCC parties’ claim in this case was for malicious prosecution. In Nelson v. Miller, 227 Kan. at 276, we stated:
“To maintain an action for malicious prosecution of a civil action the plaintiff must prove the following elements:
(a) That the defendant initiated, continued, or procured civil procedures against the plaintiff.
(b) That the defendant in so doing acted without probable cause.
(c) That the defendant acted with malice, that is he acted primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.
(d) That the proceeding terminated in favor of the plaintiff.
(e) That the plaintiff sustained damages.”
It is undisputed that the McCartneys initiated civil procedures against the FLCC parties and that the proceeding terminated in favor of the FLCC parties. The trial court did not address the issues of malice or damages but decided that as a matter of law, probable cause existed for the filing of the underlying antitrust case. The sole question before this court is whether the trial court was correct in its legal conclusion that probable cause existed for the filing of the underlying antitrust action.
Probable cause for instituting a proceeding exists when there is a reasonable ground for suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious or prudent person in the belief that the party committed the act of which he or she is complaining. Nelson v. Miller, 227 Kan. at 277. This inquiry is limited to the facts and circumstances as they appeared to the initiator at the time the prosecution was commenced. 227 Kan. at 277. If the legal validity of a claim is uncertain, the question is not whether the person bringing the claim is correct in believing that the court would sustain the claim, but rather is whether that person’s opinion that there was a sound chance that the claim might be sustained was a reasonable one. Sampson v. Hunt, 233 Kan. 572, 583, 665 P.2d 743 (1983). If the facts are undisputed, the question of whether probable cause existed is one for the court to decide as a matter of law, but where the facts tending to establish the existence or want of existence of probable cause are in dispute, the trial court has the duty to submit the question to the jury. Nelson v. Miller, 227 Kan. at 277-78.
The question comes before us upon summary judgment. Our standard of review is well established:
“The burden on the party seeking summary judgment is a strict one. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. Summary judgment is appropriate when the pleadings, depositions, answers to inter rogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal we apply die same rule, and where we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied. [Citations omitted.]” Mitzner v. State Dept. of SRS, 257 Kan. 258, 260-61, 891 P.2d 435 (1995).
Before we begin our discussion of the legal question, we note that the McCartneys settled with the FLCC parties on their malicious prosecution claim while this appeal was pending. Thus, for purposes of this appeal, the only remaining parties in whose favor summary judgment was granted are the attorneys, Don W. Noah, Noah & Harrison, and Lyle Koenig. Our review involves the sole question of whether the attorneys had probable cause under the facts determined by the trial court to be uncontroverted to file the underlying antitrust action. Where attorneys are sued for malicious prosecution of a civil action,, special rules apply in determining liability. See Goss v. Reid, 242 Kan. 782, 784-85, 751 P.2d 131 (1988); Nelson v. Miller, 227 Kan. at 282.
Nelson v. Miller involved a Wichita physician’s malicious prosecution action against several attorneys seeking to recover damages for a malpractice action brought against him by the several attorneys. 227 Kan. at 272-73. We adopted language from Restatement ( Second) of Torts § 674, Comment d (1977), relating to the liability of an attorney in such an action:
“ ‘d. Attorneys. An attorney who initiates a civil proceeding on behalf of his client or one who takes any steps in the proceeding is not liable if he has probable cause for his action (see § 675); and even if he has no probable cause and is convinced that his client’s claim is unfounded, he is still not hable if he acts primarily for the purpose of aiding his client in obtaining a proper adjudication of his claim. (See § 676.) An attorney is not required or expected to prejudge his client’s claim, and although he is fully aware that its chances of success are comparatively slight, it is his responsibility to present it to the court for adjudication if his client so insists after he has explained to the client the nature of the chances.’ ” 227 Kan. at 282-83.
Liability under this standard does not solely rest upon the validity of the McCartneys’ antitrust claims under the facts known to the initiating attorney at the time the underlying action was filed. Nor are we called upon to analyze the holding of the Court of Appeals with reference to the underlying merits of the antitrust claims. While the antitrust claims were rejected by the district court and the Court of Appeals as being legally insufficient under Kansas antitrust law, these unfavorable results alone do not establish malicious prosecution.
The question before us is whether Don Noah’s opinion that there was a sound chance that his client’s Kansas antitrust claims might be sustained was a reasonable one. Both Nelson v. Miller and Restatement (Second) of Torts § 675 (1977), discuss the meaning of probable cause in wrongfully initiated civil proceedings. 227 Kan. at 283-84. Section 675 provides, in part:
“One who takes an active part in the initiation, continuation or procurement of civil proceedings against another has probable cause for doing so if he reasonably believes in the existence of the facts upon which the claim is based, and . . .
(a) correctly or reasonable believes that under those facts the claim may be valid under the applicable law.” '
The question then, as identified above, is whether Noah correctly or reasonably believed that under the facts before him, the claims advanced in the antitrust action might be valid under the applicable law.
In differentiating between wrongfully initiated criminal and civil proceedings, Section 675 of the Restatement (Second) of Torts, Comment d, notes:
“[W]hen the proceedings are civil, while the person initiating them cannot have a reasonable belief in the existence of the facts on which the proceedings are based if he knows that the alleged facts are not true and his claim is based on false testimony, it is enough if their existence is not certain but he believes that he can establish their existence to the satisfaction of court and jury. In a word, the initiator of private civil proceedings need not have the same degree of certainty as to the relevant facts that is required of a private prosecutor of criminal proceedings. In many cases civil proceedings, to be effective, must be begun before all of the relevant facts can be ascertained to a reasonable degree of certainty. To put the initiator of civil proceedings to a greater risk of liability would put an undesirable burden upon those whose rights cannot be otherwise effectively enforced.”
We observe again that the facts in this case are uncontroverted as to probable cause. There is no claim that in filing the underlying action Noah based the antitrust action on facts he knew to be false or upon false testimony. On the contrary, he possessed evidence from past Packers and Stockyards Administration investigations and his own investigation that the FLCC parties had violated federal law in granting discriminatory trucking to its customers. He and his client also believed that his client’s business had been negatively impacted by the FLCC parties’ practice, a claim which was supported by his client’s falling revenues. He also had evidence which indicated that at least on one occasion and perhaps more, C & C Trucking had been used by the FLCC parties to effect delivery of cattle to the FLCC parties at no cost to the cattle owner. Noah also hired an accountant who indicated that he would be able to discover improper inducements made by the FLCC parties to its customers upon examination of the FLCC parties’ accounting records. While the facts at the time the underlying action was filed may have been uncertain, “it is enough if their existence is not certain but he [Noah] believes that he can establish their existence to the satisfaction of court and jury.” Restatement (Second) of Torts § 675, Comment d.
Just as the facts existing at the time the underlying action is filed are important, a consideration of the legal basis for the underlying action is also important, According to the trial court’s decision in the underlying antitrust action, the uncontroverted facts did not support a Kansas antitrust action as a matter of law. The Kansas Court of Appeals affirmed, based primarily upon its conclusion that there was no evidence of conspiracy, a legal requirement under Kansas antitrust law. The FLCC parties argue that the legal conclusions of the trial court and the Court of Appeals in the underlying antitrust action demonstrate the legal invalidity of the antitrust action filed by Noah and support a conclusion that there was no probable cause to file it.
As pointed out above, the legal validity of the underlying action as finally determined by a court of law is not determinative of probable cause. As noted in the Restatement (Second) of Torts § 675, Comment e, “[i]n determining probable cause for initiation of civil proceedings, all that is necessary is that the claimant reasonably believes that there is a sound chance that his claim may be held legally valid upon adjudication.”
In discussing legal uncertainty, Comment f further provides:
“If the legal validity of a claim is uncertain, the person who initiates the civil proceeding may believe that his claim is meritorious, but he can have no more than an opinion that the chances are good that the court might decide to uphold it. The question is not whether he is correct in believing that the court would sustain the claim, but whether his opinion that there was a sound chance that the claim might be sustained was a reasonable one. To hold that the person initiating civil proceedings is liable unless the claim proves to be valid, would throw an undesirable burden upon tiróse who by advancing claims not heretofore recognized nevertheless aid in making the law consistent with changing conditions and changing opinions.” (Emphasis added.)
In this malicious prosecution action, the trial court determined as a matter of law that probable cause existed for the filing of the underlying antitrust action. If the trial court’s determination of this issue is correct, we must affirm. The question raised by this appeal is not whether Noah was correct in believing that the district court of Republic County would sustain the antitrust claims. Rather, the question we must resolve is whether Noah reasonably believed in the facts upon which the antitrust action was based and whether his opinion that the court would sustain his claims was a reasonable one. Without belaboring all the facts considered by the trial court in arriving at is conclusion, it is apparent that both the McCartneys and Noah reasonably believed based on the existence of facts known to them and to be further developed in discovery, that the FLCC parties were engaging in improper, if not illegal, business practices designed to stifle competition and ultimately cause the McCartneys’ business to fail. There is no evidence that these facts were false or based upon known false testimony. In reviewing the uncontroverted facts relied upon by the trial court, it is enough if both the McCartneys and Noah believed that with discovery a solid factual basis would be established to the satisfaction of court and jury.
In rendering its summaiy judgment in this case the trial court also concluded that there existed a legal basis for filing the underlying antitrust action:
“The Court further concludes that the named defendants had a sufficient basis in the law which amounted to probable cause for filing the underlying lawsuit. Don Noah concluded that the lawsuit should be filed under K.S.A. 50-101, K.S.A. 50-132, K.S.A. 50-112 and K.S.A. 50-801. Noah relied on these statutes as authority that offered a reasonable probability of injunctive relief and damages to his client. K.S.A. 50-112, and other statutes relied on by die plaintiffs in the underlying litigation are broad and undeveloped by case law. Therefore, Mr. Noah could have reasonably believed that McCartneys claim, even widi the difficult issue of conspiracy, would be a suitable vehicle to develop the law of this state. Hindsight notwithstanding, the Court concludes that a colorable claim existed.”
We agree and believe that the above conclusion by the trial court is consistent with Kansas law. The three statutes under which the appellees based their claims are very similar. K.S.A. 50-101 provides:
“A trust is a combination of capital, skill, or acts, by two or more persons, firms, corporations, or associations of persons, or either two or more of diem, for either, any or all of the following purposes:
“First. To create or carry out restrictions in trade or commerce, or aids to commerce, or to cany out restrictions in the full and free pursuit of any business authorized or permitted by the laws of this state.
“Second. To increase or reduce the price of merchandise, produce or commodities, or to control the cost or rates of insurance.
“Third. To prevent competition in the manufacture, making, transportation, sale or purchase of merchandise, produce or commodities, or to prevent competition in aids to commerce.
“Fourth. To fix any standard or figure, whereby its price to the public shall be, in any manner, controlled or established, any article or commodity of merchandise, produce or commerce intended for sale, use or consumption in this state.
“Fifth. To make or enter into, or execute or carry out, any contract, obligation or agreement of any kind or description by which they shall bind or have to bind themselves not to sell, manufacture, dispose of or transport any article or commodity, or article of trade, use, merchandise, commerce or consumption below a common standard figure; or by which they shall agree in any manner to keep the price of such article, commodity or transportation at a fixed or graded figure; or by which they shall in any manner establish or settle the price of any article or commodity or transportation between them or themselves and others to preclude a free and unrestricted competition among themselves or others in transportation, sale or manufacture of any such article or commodity; or by which they shall agree to pool, combine or unite any interest they may have in connection widi the manufacture, sale or transportation of any such article or commodity, that its price may in any manner be affected. And any such combinations are hereby declared to be against public policy, unlawful and void.”
K.S.A. 50-112 provides:
“All arrangements, contracts, agreements, trusts, or combinations between persons or corporations made with a view or which tend to prevent full and free competition in the importation, transportation or sale of articles imported into this state, or in the product, manufacture or sale of articles of domestic growth or product of domestic raw material, or for the loan or use of money, or to fix attorneys’ or doctors’ fees, and all arrangements, contracts, agreements, trusts or combinations between persons or corporations, designed or which tend to advance, reduce or control the price or the cost to the producer or to the consumer of any such products or articles, or to control the cost or rate of insurance, or which tend to advance or control the rate of interest for the loan or use of moneys to the borrower, or any other services, are hereby declared to be against pubhc policy, unlawful and void.”
Finally, K.S.A. 50-132 provides:
“Every person, servant, agent or employee of any firm or corporation doing business within the state of Kansas that shall conspire or combine with any other persons, firm or corporation within or without the state for the purpose of monopolizing any fine of business, or shall conspire or combine for the purpose of preventing the producer of grain, seeds or livestock or hay, or the local buyer thereof, from shipping or marketing the same without the agency of any third person, firm or corporation, shall be deemed guilty of a misdemeanor, and on conviction shall be fined in a sum not less than one thousand dollars and not to exceed five thousand dollars for each offense.”
K.S.A. 50-801 provides that any person who may be damaged or injured by any agreement, monopoly, trust, conspiracy, or combination declared unlawful by the acts contained in Chapter 50 shall have a cause of action against any such person causing such damage or injury and may recover treble damages.
That the statutes are broad may not be denied. That there has been no meaningful interpretation of these statutes in Kansas is also true. For a comprehensive discussion of the state of antitrust law under the Kansas statutes at the time Noah filed the underlying antitrust action, see Kenton C. Granger, A Glimpse at a Plaintiff s Remedies Under Kansas’ Antitrust Laws, 8 Washburn L.J. 1 (1968). The statutes relied upon by Noah were enacted 1889,1897 (a year before Congress passed the Sherman Act), and 1899. The statutes have been virtually ignored by the bar, with only a few cases coming to this court since their enactment.
The last case decided by this court involving the above antitrust law of this state was Okerberg v. Crable, 185 Kan. 211, 341 P.2d 966 (1959). Okerberg involved an interpretation of 50-101 and 50-112, as related to the issue of whether a certain regulation that set routes among milk carriers was void per se as against the above statutes and policy of this state. It is of litde value with regard to the issues in the case at hand. In Gard v. Holmes, 132 Kan. 443, 295 P.2d 716 (1931), the question resolved by this court was whether a secret contract between undertakers was in violation of the antitrust statutes of 1889 and 1897. This court held that it was in violation and that the notes sued on were an inherent and essential part of thé illegal transaction, non-collectible, and void. Again, the case offers little help. The earlier case of State v. Wilson, 73 Kan. 334, 80 Pac. 639 (1906), relied on in part by Noah as a legal basis for initiation of the underlying antitrust action, contains the following quote:
“[Laws of 1897, G.S. 1901, § 7864 through § 7874, now K.S.A. 50-101 through K.S.A. 50-110] is very sweeping in its provisions. It defines and denounces five kinds of combinations, which it denominates trusts. The definitions are couched in general terms, but cover almost every conceivable device by which freedom of commerce might be hampered, competition restricted, or the price of commodities controlled. All acts done in pursuance of any of the arrangements interdicted by these various statute are made misdemeanors.” 73 Kan. at 337.
Kansas antitrust law provided little if any guidance for the initiation of the underlying Kansas antitrust claims advanced by Noah. As the trial court stated:
“K.S.A. 50-112, and other statutes relied on by the plaintiffs in the underlying litigation are broad and undeveloped by case law. Therefore, Mr. Noah could have reasonably believed that McCartneys claim, even with the difficult issue of conspiracy, would be a suitable vehicle to develop the law of this state.”
The FLCC parties argue that Noah’s claims would have had no chance of success had they been filed under the Sherman Antitrust Act. (15 U.S.C. 1 et seq. [1994]). Kansas law is similar in some respects to the Sherman Act, but it is not identical. In fact, some of the statutes relied upon by Noah predate the Sherman Act. While it was certainly foreseeable that the court might find as it ultimately did, that Kansas law follows the Sherman Act with re gard to the requirements of a conspiracy to monopolize, such a conclusion was by no means certain. The FLCC parties devote considerable time in their brief and in argument before this court on the state of federal antitrust cases interpreting the Sherman Act. While such cases may be persuasive authority for any state court interpreting its antitrust laws, such authority is not binding upon any court in Kansas interpreting Kansas antitrust laws. Given the state of antitrust law in Kansas and the uncontroverted facts, the belief that there was a sound chance the claims made in the underlying action might be held legally valid upon adjudication was not an unreasonable one.
The FLCC parties also argue that Noah knew that there was no evidence in the case to establish a conspiracy, which was critical to a successful Kansas antitrust action. The FLCC parties contend that without evidence of a conspiracy, both factually and legally, the underlying antitrust action was fatally flawed and filed without probable cause.
Contrary to the argument of the FLCC parties, there was evidence developed by Noah prior to filing the underlying antitrust action that on at least one occasion and likely on more than one occasion, Adolph Charbonneau, d/b/a/ as C & C Trucking, had been paid directly by the FLCC parties for transportation of a customer’s cattle to their sale bam. The Court of Appeals did not address this aspect in the underlying case. We mention it here not to demonstrate that a conspiracy existed between C & C Tracking and the FLCC parties, for ultimately this proved not to be the case. Instead, we mention it because it relates to the question of whether Noah’s belief that there was a sound chance the claims made in the underlying action might be held legally valid upon adjudication was a reasonable one.
Under the uncontroverted facts and Kansas antitrust law, we agree with the conclusion of the trial court:
“This Court has attempted to review the undisputed facts to ascertain those facts and information in die mind of Don Noah and the other defendants at the time die underlying litigation was filed. The records support a finding that Mr. Noah and those assisting him in the suit proceeded in good faith to prosecute a colorable claim to obtain appropriate relief for a client.”
Specifically, we conclude that Noah’s opinion that there was a sound chance that the antitrust claims made in the underlying action filed on behalf of the McCartneys might be sustained was a reasonable one. Accordingly, we affirm the trial court’s entry of summary judgment.
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Russell W. Davisson, of Wichita, an attorney admitted to the practice of law in the state of Kansas.
The formal complaint filed against respondent contained six counts, alleging violations of MRPC 1.1 (1998 Kan. Ct. R. Annot. 279); MRPC 1.3 (1998 Kan. Ct. R. Annot. 288); MRPC 1.4(a) and (b) (1998 Kan. Ct. R. Annot. 296); MRPC 3.4(c) (1998 Kan. Ct. R. Annot. 357); and MRPC 8.4(c) (1998 Kan. Ct. R. Annot. 386). Respondent filed an answer.
A hearing before the panel of the Kansas Board for Discipline of Attorneys was held on February 24, 1998, in Topeka, Kansas. Respondent appeared in person and by his counsel, Daniel J. Sevart.
The present complaint arises out of respondent’s being retained to represent Rowana Willrich, now Rowana Gulley, in several matters evolving out of an automobile accident. The panel made the following findings of fact:
“3. On August 15, 1992, Gulley had an automobile accident at Joe’s Car Wash, 206 North Seneca, Wichita, Kansas. She made a left turn across traffic into the car wash driveway and collided with a concrete abutment located on the property of Joe’s Car Wash. Gulley was hurt, the Blazer was damaged and property at Joe’s Car Wash was damaged, as well. The Blazer was towed by Arrow Wrecking Service and left at their storage facility. [Gulley] made a claim with her own insurance company, Farm Bureau, to pay for property damage. When Farm Bureau learned there was a discrepancy in the vehicle identification numbers on the insurance application and on the actual vehicle, it denied coverage and refused to pay for the property damage, although it did pay PIP benefits and some costs of a rental vehicle. Gulley retained Davisson to represent her in all matters concerning her vehicle and the personal injury she suffered as a result of the accident.
“4. When Gulley did not make any more payments on the promissory note due on the Blazer, that note was recoursed back to Scholfield Brothers, Inc., the automobile dealer which sold the car to Gulley. In 1993, Scholfield Brothers, Inc. sued Gulley in a civil action entitled Scholfield Brothers, Inc. v. Rowana W. Willrich, Case No. 93 C 311, filed in the District Court of the Eighteenth Judicial District of Kansas (the Scholfield lawsuit). Davisson entered his appearance on behalf of Gulley and filed a counterclaim against Scholfield, contending that the Blazer was defective due to acceleration problems and that this defect caused the accident.
“5. On October 21, 1993, Scholfield Brothers, Inc. filed its Pretrial Questionnaire. The questionnaire alleges that all of the defendant’s claims and defenses should be barred as a result of the defendant’s failure to cooperate in discovery. Pages 3 and 4 of the Pretrial Questionnaire contain the following allegations:
‘On or about August 12, 1993, Scholfield filed a motion for extension of time to conduct discovery or in the alternative [for] dismissal of defendant’s claims. The motion came on for hearing before the Honorable Ron Rogg on August 20, 1993. At the hearing of said motion, the Court entered orders which required the defendant to submit her response to Scholfield’s Statement of Monetary Damages, interrogatories, and production of documents by August 23,1993. The Court further ordered that defendant submit an automotive expert witness report on or before September 15, 1993, or no expert would be allowed to testify, the second time which this date has been extended. In addition, the jury trial scheduled in this case was continued to December 7, 1993. To date, defendant has not responded to Scholfield’s discovery requests despite being ordered to do so, nor has defendant submitted an automotive expert witness report.’
“6. The Scholfield lawsuit proceeded to bench trial on December 21, 1993. Because there was no evidence to support the claim that there was a defect in the Blazer which caused the accident, the judge rejected the counterclaim and entered judgment against Ms. Gulley in the amount of $13,360.64.
“7. Following the trial, Davisson promised Gulley that he would file a lawsuit against Farm Bureau to secure payment for the property damage to the Blazer (the Farm Bureau lawsuit). That lawsuit was not filed until November 3, 1995.
“8. During the time from December 27, 1993, to November 3, 1995, Gulley and her husband, Ed Gulley, continued to ask about the status of the lawsuit against Farm Bureau. Davisson repeatedly told them the lawsuit was on file, told Mr. Gulley that he would send out copies of the lawsuit to him in July 1995, reported that the copies must have been lost in the mail, stated to Mr. Gulley that Farm Bureau was cutting a check, that he did not know the amount, and that he would call Mr. Gulley when it had arrived, and then told Mr. Gulley that perhaps the check was lost in the mail and that he wold follow up on it immediately.
“9. In truth, the Farm Bureau adjuster had made his last contact with Davisson on February 28,1995, when he wrote to Davisson and made an offer to settle the property damage claim in the amount of $2982.71. This offer was never communicated to Gulley.
“10. Davisson failed to communicate with Gulley concerning the placement of the Blazer at Arrow Wrecking after the accident. The Blazer remained at that location from the date of the accident with a result of substantial storage charges against the vehicle and the vehicle was eventually disposed of. The Gulleys received a certified letter from Arrow Wrecking regarding the vehicle and they gave that letter to Davisson who told them he would take care of it. He never did.
“11. Davisson failed to communicate with his client or make any attempt to provide for the payment of medical expenses and all of the rental expenses which arose as a result of the accident, with the result that said expenses had never been provided for.
“12. Davisson never caused a summons in the Farm Bureau lawsuit to be issued or service or process to be made.”
Respondent does not take exception to the final hearing report and stipulates to the following violations:
“1. Violations of Model Rule 1.3 regarding lack of due diligence in that he did not exercise due diligence in (a) completing discovery responses in providing a statement of monetary damages in a case brought by Scholfield Brothers, Inc., against Rowana Gulley, and (b) getting a lawsuit on file for Ms. Gulley against Farm Bureau Insurance in a timely manner.
“2. Violation of Model Rule 1.4 regarding communication, in that he did not adequately communicate with his clients in both the suit filed by Scholfield Brothers against Gulley and in the suit by Gulley against Farm Bureau Insurance.
“The panel consequently finds, by clear and convincing evidence, that Respondent committed these violations as stipulated.”
The hearing panel consequently concluded that respondent violated MRPC 1.3 (due diligence) and 1.4 (communication). The panel considered the following aggravating factors:
“Prior disciplinary offenses. Respondent received an informal admonition in 1987 for lack of diligence and, in In re Davisson, 243 Kan. 167 [, 753 P.2d 1290] (1988), Respondent received public censure for neglect of a legal matter entrusted to him.
“Substantial experience in the practice of law. Respondent has been practicing law for over 20 years.”
The panel found in mitigation the following:
“Absence of a dishonest or selfish motive.
“Personal or emotional problems. Respondent’s psychologist, Dr. Theodore Moeller, testified that he has been treating Respondent since October 1996 for significant depression. Respondent’s physician prescribed Prozac, which Respondent takes on a regular basis, as prescribed. Respondent attends a group therapy session with Dr. Moeller once each week. Dr. Moeller testified that, with continued treatment and medication, and with supervision and structure such as attorney David Arst has been providing, Respondent could continue in the practice of law.
“Effort to make restitution or rectify the consequences of the misconduct. In January 1996, Respondent agreed to end his relationship with the lawyers in his office as of the end of the lease period, which was June 1996. Respondent opened a new office by himself in July 1996, limiting his practice to bankruptcy, contract, simple incorporation and wills cases. He decided to accept no more cases requiring litigation. Respondent began to see Dr. Moeller. In January 1997, at the suggestion of the Disciplinary Administrator’s office, Respondent began working under the supervision of David Arst, another Wichita attorney. In addition, Respondent has paid $14,000 of a $20,000 settlement to the complainant Rowana Gulley, in response to a lawsuit she filed against Respondent over the misconduct discussed herein.
“Mental disability, including alcoholism or drug abuse, when:
(1) there is medical evidence that the respondent is affected by a chemical dependency;
(2) the chemical dependency caused the misconduct;
(3) the respondent’s recovery from the chemical dependency is demonstrated by a meaningful and sustained period of successful rehabilitation; and
(4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely.
“In this case, Dr. Moeller, Respondent’s psychologist, testified that, in his opinion, the first two prongs of this test are met. As for the third and fourth prongs of this test, he testified that Respondent is in the process of recovery and rehabilitation, but that recovery was not yet complete and that recurrence of the misconduct would be unlikely if he continues with treatment.”
The court, having considered the record, the report of the hearing panel, and arguments of counsel, concludes that the findings of fact are supported by clear and convincing evidence. Respondent takes no exception to the findings of fact. We also conclude that the panel’s conclusions of law are supported by the findings and adopt the findings and conclusions of the panel.
The panel recommends that respondent be placed on 2 years of supervised probation, limit his practice, maintain malpractice in surance, and satisfy Gulley s judgment against him. The Disciplinary Administrator also recommends supervised probation. We adopt the recommendation of tire panel.
It Is Therefore Ordered that imposition of discipline against respondent Russell W. Davisson be suspended and that he be placed on supervised probation for a period of 2 years from the date of this order.
It Is Further Ordered:
(1) Attorney David Arst, of Wichita, will supervise respondent’s probation and supervise his practice for a period of 2 years from the date of this order.
(2) Arst shall be acting as an officer of the court and as an agent of the court as supervisor of probation in monitoring the legal practice of respondent.
(3) Arst shall be afforded all immunities granted by Supreme Court Rule 223 (1998 Kan. Ct. R. Annot. 264) during the course of his activities as directed by this order. Respondent will allow Arst access to his files, his employees, his trust account, and his doctors.
(4) Arst shall review quarterly the actual files of respondent; respondent will limit his practice to areas in which Arst feels respondent is competent to practice; respondent will maintain malpractice insurance; and respondent will pay and satisfy the judgment against him by Ms. Gulley.
(5) Respondent shall continue treatment for his depression. Arst shall keep the Disciplinary Administrator informed of respondent’s progress in such a manner as the Disciplinary Administrator shall request.
(6) Respondent shall also furnish all reports as requested by the Disciplinaiy Administrator.
It Is Further Ordered that in the event respondent fails to abide by the conditions set forth herein, a show cause order shall forthwith issue to respondent, and this court will take whatever disciplinary action it deems necessary without further formal proceedings.
It Is Further Ordered that the costs of these proceedings be assessed to respondent and that this order be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Larson, J.:
Charles Brown appeals his jury conviction of first-degree murder, K.S.A. 21-3401, and subsequent sentence to a term of life imprisonment with a 25-year parole eligibility term.
Brown alleges nine separate errors, including: (1) denial of a motion for change of judge, (2) violation of his speedy trial right, (3) violation of a motion for a transcript of the preliminary hearing, (4) admission of bone and teeth fragments, (5) allowing expert testimony of a volunteer for a search and rescue canine organization, (6) denial of his request for services of an investigator, (7) limitation of cross-examination, (8) ineffective assistance of counsel, and (9) cumulative error. We do not find any of Brown’s alleged errors sufficient to require reversal of his conviction and sentence.
Factual statement
Although the body of the victim, Michael Gerhard, was not found, the case against Brown was based on the testimony of one of Brown’s employees, Shawn Cordray; Brown’s former girlfriend, Glenda Sands; ajailhouse companion of Brown’s, Shannon Cooper; and circumstantial evidence including an expert opinion of a canine search and rescue individual and admission of bone and teeth fragments located where the alleged cremation of the body took place.
Brown denied the crime, said it was committed by Cordray, stated his former girlfriend was out to get him, contended his cell mate made up his testimony to attempt to obtain reduction of charges against him, and the evidence was insufficient to prove his guilt beyond a reasonable doubt. Highly summarized, the testimony of the principal witnesses are as follows:
Shawn Cordray
Cordray worked for Brown at the salvage yard he owned. A house on the property was used for storage and to house Brown’s pets. On October 31, 1995, the house burned and the pets were killed in the fire. Brown was angiy. After being told there was a strong odor of gasoline and that it appeared to be an arson fire, Brown said that “if he found out who did it, that he was going to kill them.” Cordray said Brown asked him to stay in a camper at the salvage yard to look after the property.
Cordray testified Brown thought Gerhard had burned down the house because Gerhard had called the night of the fire. Gerhard did not work at the salvage yard but occasionally visited to “pick up different things.” A week after the fire, Gerhard arrived at the salvage yard in his van and spent the night in the camper with Cordray. Around 10 the next morning, Cordray testified that “Charlie came up to Mike and said he had to talk to him and they went to the camper.” Cordray said he was approximately 25 feet away from the camper and could hear muffled yelling for a few minutes and then quiet. Cordray testified Brown led him inside the trailer where he saw Gerhard inside the bathroom “crunched on his calves” with a trickle of blood under his nose. His face was pale, his lips were blue, and there were marks on his neck.
Cordray testified Brown said he had killed Gerhard because he had burned down his house. Cordray was directed to wrap Ger-hard’s body in plastic and place it on a bum pile located behind the trailer. Cordray said he assisted Brown in placing big logs and gas and diesel fuel on the pile, then added more wood and more diesel fuel and Brown ignited it. Cordray testified he and Brown kept the fire burning through the rest of the day and the following morning when Brown directed him to “rake up the ashes, make sure there’s no bones in there.”
Cordray said his brother, David Cordray, who also worked for Brown, came to the salvage yard on the day of the burning, but he did not tell his brother what had happened because he did not want to put him in danger.
Cordray testified Brown told him to tell anyone who asked that Gerhard went back to Iowa because he missed a “court thing up there.” When asked why he helped, Cordray said: “I was scared” and if he told anyone about Gerhard’s death, Brown would hurt him and his family.
Cordray stated Brown took possession of some of Gerhard’s property, which was sold at a flea market. Gerhard’s van was sold to David Cordray for $300. Some of Gerhard’s tools were sold in January 1996 to David Serváis. Gerhard’s name was etched on the tools, and Serváis contacted the police and surrendered the tools after reading about Gerhard’s disappearance in the newspaper.
Cordray said he quit working for Brown in January 1996, and contacted the police through a friend of his mother’s. Cordray testified he was present when the police executed a search warrant on the salvage yard. He pointed out the mound of earth and ashes located under a cardboard box where the fire had taken place. Search dogs trained to detect the scent of human remains were brought to the scene and alerted on the location identified by Cor-dray.
Glenda Sands
Glenda Sands, who had been Brown’s girlfriend and business partner, testified Brown told her he believed Gerhard had started the fire to cover up his thefts from him. She asked why Gerhard’s van was on the property and was told by Brown that Gerhard had “left and was angry and walked away.” However, she further stated that in December 1995, Brown wrote a note to her which stated he had strangled Gerhard and burned his body. The note was written because Brown believed his house was bugged. Sands stated Brown told her if she told anyone he would kill her and bomb her parent’s house. The note was burned in the kitchen sink. Eventually, Brown and Sands broke up, and she made her story known to the police.
The evidence showed that after Cordray and Sands gave their statements to the police and the search of the salvage yard was completed, Brown was not at his residence when the police arrived to take him into custody. Brown was found in some brush wearing only his jeans.
Shannon Cooper
Shannon Cooper, an inmate in the Wyandotte County Jail, met Brown while in custody. Cooper testified he asked Brown what he was in for and Brown told him “he had killed a man named Michael Gerhard.” Cooper testified Brown related the strangling of Ger-hard by wrapping a cord around his neck in the bathroom. Brown said an employee named Cordray helped him wap the body in plastic and place it on a burn pile and, after being burned a day, it was buried in a hole with a Model T car placed over the burial site. Cooper testified Brown told him he killed Gerhard because he had stolen some drugs and burned down a house on the property. Brown offered Cooper $500 up front and $2,000 after he was acquitted to testify that Cordray had committed the murder. Cooper also stated that Brown told him he was afraid that Shawn Cordray would go to the police, so he enlisted the help of David Cordray to dig up the remains of the body and dump it into the river.
Cooper went to his attorney with this information and struck a deal with the prosecution: In return for his testimony, the forgery charges against him would be dismissed and his probation would not be revoked.
Anthony Serrano
Gerhard’s landlord, Anthony Serrano, testified there was no indication Gerhard was at his residence during the month of Novem ber. By January most of his possessions were gone. Only Gerhard’s dog and Harley Davidson motorcycle were still on the premises. These items were stated to be Gerhard’s prized possessions and if he left he would have taken them with him.
David Cordray
David Cordray testified that Gerhard’s van was at the salvage yard. He had asked the defendant where Gerhard was and was told that Gerhard “got whacked out on crank” and wandered off.
Irene Korotev
Irene Korotev testified she and her dog Tino along with another handler and his dog were asked to assist in a search at the salvage yard for a human body. Tino is trained to detect the scent of human remains and she is trained to interpret her dog’s behavior. She was only told there was a possibility of human remains; however, Tino “alerted” on a mound of soil and ashes beneath a large cardboard box.
Testimony was presented that the police contacted the street department who removed a section of earth surrounding the area indicated by Cordray as the bum site. The removed dirt was transported to a sanitation department, where it was examined by an anthropologist from the University of Kansas and human bones and teeth fragments, that appeared to be heavily burned, were discovered.
Charles Brown
Brown took the stand and contended the night of the fire he was at home with Sands. After Gerhard informed them of the fire, he suspected several individuals including Gerhard. Brown testified Gerhard discovered a gas can in a clothes diyer and from then on, Gerhard was no longer a suspect. Brown testified that on November 5 when he went to the salvage yard, Shawn Cordray was already there and a fire was burning, with something in the fire that looked like rib bones. Brown contended he asked Cordray about it but Cordray said Brown did not know what he was talking about. He did not pursue the matter further because he was already in trouble with the city due to some code violations related to the salvage yard.
Brown testified Sands told him Gerhard’s landlord wanted the property removed but that the items taken actually were his which Gerhard had stolen or borrowed from him. Brown further testified that he received the keys to Gerhard’s van from Cordray, who said he had fought with Gerhard, who was “high” and had wandered off. He further testified that Cordray confessed he had killed Ger-hard and burned his body in a fire, a fact he had passed on to Sands. Brown denied all of the State’s evidence. He testified he and Sands had a falling out when he discovered she was having an affair. Sands told him she would find a way to put him in jail. He admitted hiding when the police came to arrest him, but explained that he did so because he was never able to find out what the charge against him was. He acknowledged meeting Cooper in jail but contended Sands had known Cooper first. He denied telling Cooper anything about killing Gerhard, that Cooper had called Sands from jail, and that Cooper had a newspaper article from which he obtained the facts of the case.
Kathy Creason
Kathy Creason testified for the defense. She was engaged to many Brown’s brother. She testified that she went to the trailer at the salvage yard to repay money Cordray had loaned her. When she opened the door to the trailer, “Shawn was standing there with a propane torch turned on full blast and stuck it in my face and told me that I shouldn’t fuck with him because he was going to kill me just like he did Mike and I should know better.” Creason testified Sands asked her to help her think of a way to get Brown out of her life. Creason also admitted to being a drug addict but said that she had entered a drug rehabilitation program on December 26, 1995.
Faith Spruill
Faith Spruill was a inmate who knew all of the parties. She testified she saw Gerhard at the salvage yard several weeks after the alleged murder. She testified Cordray had told her he hated Ger- hard and that he had gotten into a fight with him in which Gerhard hurt his back.
Johnny Hogue
Johnny Hogue, another inmate, testified he knew both Brown and Cooper. Hogue testified that shortly before Brown’s trial, Cooper told him he was testifying. Hogue said Cooper stated, “I made a deal with Glenda. I’m going to hang his ass.” On cross-examination, Hogue denied making up his testimony and denied that Brown had promised him anything for his testimony, although he did admit to speaking with Brown while in jail.
After being properly instructed, Brown was convicted by the jury of first-degree murder and sentenced to life imprisonment with no chance of parole for 25 years.
Analysis
The trial court did not err in denying Brown’s motion for a change of judge.
The standard of review of an error relating to a motion for change of judge is set forth in State v. Alderson, 260 Kan. 445, Syl. ¶ 2, 922 P.2d 435 (1996), as follows:
“When a district court refuses to recuse itself from a trial upon the defendant’s request, this court has promulgated a two-part test to determine whether the defendant received a fair trial or whether the defendant’s due process rights were violated: (1) Did the trial court judge have a duty to recuse himself or herself from this case because the judge was biased, prejudicial, or partial? (2) If the judge did have a duty to recuse and failed to do so, is there a showing of actual bias or prejudice to warrant setting aside the judgment of the trial court?”
The motion for change of judge was filed on August 16, 1996, pursuant to K.S.A. 20-311d(c)(5). After a hearing on August 23, 1996, the judge advised defense counsel to further comply with the statute. Six documents in support of the motion were filed: three were affidavits from Brown and two from other parties plus a statement filed by defense counsel, which was not sworn to or notarized. All documents alleged a strong animosity between the trial judge and the defense counsel. The sufficiency of the affidavits were denied by the trial judge in a journal entry dated August 23, 1996. The motion and affidavits were reviewed by the administrative judge by an order dated September 3, 1996, which found the motion insufficient and denied.
On appeal, Brown contends (1) the judge held a personal bias and prejudice against his attorney which would make a fair trial impossible, (2) another judge should have been assigned, and (3) he was denied his constitutional right of a fair and impartial court. None of these contentions have any merit.
The State first argues that Brown’s motion for change of judge was not timely because of K.S.A. 20-311f. State v. Timmons, 218 Kan. 741, 749, 545 P.2d 358 (1976), construes that statute and holds a motion for change of judge must be filed within 7 days after pretrial or receiving notice of the name of the judge before the case is heard, whichever is later. The record clearly reflects that Brown and his attorney would have known by late April 1996 which trial judge was assigned this case. The motion was not filed until August 16, 1996, some 70 days after the hearing on the motion for a continuance, 60 days from the time the trial date was set, and 127 days after the pretrial conference was held. The motion was not timely filed.
The State’s argument is valid, and the failure to file within the statutory time period bars the issue on appeal. See Carpenter v. State, 223 Kan. 523, 575 P.2d 26 (1978) (holding that failure to timely comply with the statute bars consideration of an affidavit of prejudice).
In addition, the affidavits of the two nonparties are not to be considered. The contentions of Brown were conclusory and not sufficient. Brown’s counsel’s statement was not prepared in affidavit form or properly executed under the statute. The record reflects the administrative judge of the judicial district did consider the motions, reviewed all of the documents, and properly denied the motion. This contention is without merit.
Brown’s right to a speedy trial was not violated when the trial court granted the State’s motion for continuance in order to send bone and teeth fragments to the FBI laboratory for DNA testing.
While the matter of a continuance in a criminal case is within the discretion of the trial court, State v. Stallings, 262 Kan. 721, 726, 942 P.2d 11 (1997), the statutory speedy trial requirements of K.S.A. 22-3402 require that an accused in custody (as Brown was) must be brought to trial within 90 days after arraignment unless the delay was the application or fault of the defendant or from a continuance ordered under subsection (3).
K.S.A. 22-3402(3) allows the 90-day limitation to be extended if material evidence is unavailable and there are grounds to believe that it can be obtained within the succeeding 90 days. This provision allows only one such continuance unless for good cause shown and the trial is to be commenced within 120 days of the original trial date.
In this matter, Brown was arraigned on March 22, 1996, and the case set for trial on June 17, 1996, which was within the 90-day period. As the result of a hearing on June 6, 1996, the trial was continued in order to send bone and teeth fragments to the FBI laboratory for PCR DNA testing.
The argument at the hearing on the motion to continue was based on the assurance of an FBI agent who believed testing would obtain results from a very small amount of DNA, such as was submitted in this case. After the motion was granted, the trial commenced on September 3, 1996, which was 89 days after the hearing.
Brown makes two arguments. First, that the test contemplated was not reliable and generally accepted within the scientific community and, thus, failed the test of Frye v. United States, 293 Fed. 1013 (D.C. Cir. 1923). Second, Brown contends the continuance was based upon false information because dental records were expected to be obtained but ultimately could not be located. This was contended by Brown to bé false information and analogous to situations where false information is used to obtain a search warrant that is suppressed.
Neither contention has any merit. The evidence attempted to be obtained under K.S.A. 22-3402(3)(c) was material. This did not change when the testing or lack of it did not result in admissible evidence. See State v. Green, 254 Kan. 669, 674, 867 P.2d 366 (1994) (continuance proper even though State did not introduce DNA evidence). The State is not required to show that the evi dence meets the Frye test before its requested continuance can be granted. It is entitled to attempt to match the bones and teeth fragments found at the crime scene to the victim’s DNA. The continuance was properly granted. The speedy trial right was not violated.
The trial court did not err in denying Brown’s motion for a transcript of the preliminary examination.
This is again an abuse of discretion issue and one that is without merit. Brown’s request for a transcript of the preliminary hearing was denied, but an audio tape of the preliminary hearing was made available. In this situation, trial counsel indicated that a copy of the tape would be sufficient, but continued to contend that K.S.A. 22-4509 was violated.
In State v. Kelley, 209 Kan. 699, 702-03, 498 P.2d 87 (1972), we held that the requirement of availability of a record or transcript of a prior proceeding required by Britt v. North Carolina, 404 U.S. 226, 30 L. Ed. 2d 400, 92 S. Ct. 431 (1971), could be satisfied by alternative means. It is clear that Brown’s counsel had sufficient access to the preliminary hearing testimony so that he was able to provide an adequate defense. The trial court did not err in denying Brown’s request.
The trial court did not abuse its discretion in allowing the State to admit bone and teeth fragments found at the murder scene.
Brown’s argument that admission of teeth and bone fragments found at the murder scene were irrelevant because they were not directly related to Gerhard is not tenable. Relevancy issues are within the sound discretion of the trial court. State v. Cooper, 252 Kan. 340, 348, 845 P.2d 631 (1993). The evidence showed the location of the area where Cordray testified that Gerhard’s body had been cremated, dogs had alerted to the area, and fragments recovered were identified by Dr. Frayer, an anthropologist, as human bone and teeth fragments.
When Dr. Frayer testified at trial, he identified the bones and teeth fragments recovered were that of an adult human being, but he could not make a more specific identification. Defense counsel objected on the grounds of relevancy and lack of foundation. The trial court overruled after a foundation was shown by the police sergeant who testified as to the method of collection.
The fragments were clearly relevant because they added to the circumstances of the crime. This situation is similar to Cooper, where a knife found at the scene of the crime was admitted, but it was contended on appeal to be irrelevant because it was not linked to the crime by eyewitness or scientific evidence. We held in Cooper:
“When a physical object is offered into evidence and a question arises as to its connection with either the defendant or the crime charged, the object should be admitted for such weight and effect as the jury sees fit to give it, unless it is clearly irrelevant.” 252 Kan. at 348.
The ruling in Cooper is applicable here. The bone and teeth fragments were properly admitted as was the knife in Cooper. A contention on appeal that the bone and teeth fragments were more prejudicial than probative was not the basis for the objection below. This argument was not preserved for appeal. There was no abuse of discretion in admitting the bone and teeth fragments.
The trial court did not abuse its discretion in allowing a volunteer for the search and rescue canine organization to testify as to her opinion that human remains were alerted to by her trained dog.
At trial, Irene Korotev testified she has been part of the Missouri Search and Rescue Canine organization since 1984. She has received extensive training including several search and rescue schools. She has worked with Andrew Redmon, a recognized expert in the field of locating human remains using canines. Korotev is nationally certified as search ready. Her dog, Tino, is trained to ignore all scents other than human beings. Korotev and Tino have been on approximately 20 searches of this type and have previously been successful in finding human remains.
With this background, Korotev was allowed to give her opinion that based upon the dog’s behavior, a conclusion could be drawn that the remains of a human body were in the area. Defense counsel objected for failing to lay an adequate foundation and asked to voir dire the witness before she was allowed to give her opinion. The court ruled an adequate foundation had been laid and that defendant would be allowed to cross-examine the witness.
On appeal, Brown argues Korotev was not qualified to render an opinion because she did not have sufficient medical training. Additionally, Brown contends it was prejudicial not to be allowed to voir dire the witness before an opinion was given.
The State contends the witness was fully qualified and an adequate foundation was established. The admission of bloodhound tracking evidence and narcotics dogs are analogous to the issues in this case, and those requirements should be followed. The State relies on State v. Wainwright, 18 Kan. App. 2d 449, 856 P.2d 163 (1993), and the cases cited therein for its contention.
In Wainwright, the history of allowing bloodhound evidence through State v. Netherton, 133 Kan. 685, 690-91, 3 P.2d 495 (1931), State v. Fixley, 118 Kan. 1, Syl. ¶¶ 1, 2, 233 Pac. 796 (1925), and State v. Adams, 85 Kan. 435, Syl. ¶ 3, 116 Pac. 608 (1911), was stated. The Court of Appeals said: “Here, there was sufficient foundation laid to show, both the training and reliability of the dog and the trainer to allow the admission of the bloodhound evidence.” 18 Kan. App. 2d at 452. This is also true in this case. Korotev was qualified to testify as to her training and qualifications, her dog’s training, and to interpret her dog’s action. The opinion was not allowed as to whether it was the victim’s scent nor was it the only proof offered by the State. The State also offered testimony of Cordray and Dr. Frayer, and other evidence. This was a circumstantial evidence case in which this evidence was entitled to be considered for the weight that the jury might decide to give it. It was not erroneously admitted, nor was Brown’s counsel prevented from adequately cross-examining and discrediting the witnesses’ testimony. See also State v. Barker, 252 Kan. 949, Syl. ¶ 6, 850 P.2d 885 (1993). (“In order to establish probable cause for the search of a vehicle based on a canine sniff, some foundation testimony is necessary to establish that the ‘alert’ of the dog provided probable cause. A description of the dog’s conduct, training, and experience by a knowledgeable person who can interpret the conduct as signaling the presence of a controlled substance would constitute the minimum requirement for finding probable cause.”)
The trial court did not improperly refuse to grant defense counsel’s motion for the services of an investigator.
The authorization for investigative services in a criminal trial of an indigent defendant is a matter which lies within the sound discretion of the trial court whose decision will not be disturbed unless prejudice can be shown. State v. Reynolds, 230 Kan. 532, 535, 639 P.2d 461 (1982).
Defense counsel filed a pretrial motion requesting the services of an investigator to determine the possibility that Shawn Cordray has killed other people and did kill the victim of this crime. During a hearing on the motion, defense counsel contended that these services were required to assist in discrediting the principal witness against Brown.
In denying the motion, the trial court held that evidence of whether Cordray had admitted to killing or even could be shown to have killed other people would not be admissible in the trial, although evidence that Cordray killed the victim would be admissible.
At trial, defense counsel questioned Creason as to admissions of Cordray concerning Gerhard’s death but was not allowed to question her concerning other matters.
Brown’s contention that he was unable to prepare an adequate defense because he was denied the services of an investigator is claimed to be similar to Dunn v. Roberts, 963 F.2d 308, 314 (10th Cir. 1992), where an accused’s mental condition was an issue, and she was deemed required to be granted funds for exploring her psychiatric condition.
The State concedes that an indigent defendant maybe furnished with investigative services if the requirements set forth in K.S.A. 22-4508 are met, but that this right is not absolute. The State relies on State v. Frideaux, 207 Kan. 790, 792, 487 P.2d 541 (1971), where a defendant’s request to hire an investigator in an attempt to find a phantom witness was denied.
K.S.A. 22-4508 allows services of an investigator where deemed necessary and the defendant is financially unable to provide them. However, in this case, even if other crimes by Cordray were proven, they would not have been admissible under K.S.A. 60-447.
Brown’s argument that the investigator would have determined that other individuals had killed Gerhard is strictly speculation. The trial court did not abuse its discretion in making this determination and in its refusal to grant the request for investigative services.
Did the trial court improperly refuse to allow defense counsel’s questioning of Creason regarding Cordray’s alleged statements that he had killed other persons?
The admission or exclusion of evidence is left to the sound discretion of the trial court. State v. Roberts, 261 Kan. 320, 328, 931 P.2d 683 (1997). Evidence of specific instances of conduct other than criminal convictions which tends to prove a bad character trait is inadmissible. K.S.A. 60-447.
Brown makes a somewhat multiplicious argument that the defense counsel was not allowed to sufficiently question Cordray or Creason regarding Cordray’s statements that he allegedly admitted to killing persons other than Gerhard. The evidence of specific acts are irrelevant and inadmissible as discussed in the previous issue. It was not an abuse of discretion in refusing to allow this line of testimony.
Was Brown denied the right to effective assistance of counsel?
After conviction, Brown filed a pro se motion for a new trial, alleging ineffective assistance of counsel. Brown claimed attorney Albin was not competent because he had not handled a murder case previously, that names and addresses of witnesses had been provided but not interviewed, that Albin had stated he would represent Cordray after he obtained Brown’s exoneration, and that available evidence was not used to impeach peijured testimony.
Albin responded by filing an affidavit showing he had handled 15 prior jury trials, interviewed all witnesses for this trial, met with Brown’s neighbors, done extensive interviews with Cordray, and while he did say he would represent Cordray once he “got Charles off,” it was because he expected a defense verdict and that Cordray would then be charged.
At a hearing on the motion, Brown was granted new counsel, and he was given the right to call additional witnesses but did not do so. The judge hearing the motion also presided at the trial and ruled that Brown’s right to a fair and impartial trial was not violated and he had received adequate representation.
On appeal, Brown now contends he did not receive an evidentiary hearing and has asked this court to remand for such a hearing. In the alternative, Brown asks the court to decline to rule on this issue so that he could raise the matter in a later motion.
Brown asserts that each allegation is supported by facts in the record and required an in-depth analysis, which was not provided at the time the motion for a new trial was considered.
The State contends that Brown had the opportunity to present evidence and even with a different counsel did not do so. This it is claimed, in effect, waives the hearing, relying on State v. Walker, 239 Kan. 635, 638, 722 P.2d 556 (1986).
We decline to remand this matter for determination. The matter was before the trial court. The opportunity for presentation of additional evidence existed. The trial court properly denied the motion.
Under our obligation, we review the issue on appeal de novo as directed by Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), as mixed questions of fact and law under the totality of the facts and circumstances. See State v. Rice, 261 Kan. 567, 602, 932 P.2d 981 (1997).
In Chamberlain v. State, 236 Kan. 650, 694 P.2d 468 (1985), our standards for considering a claim of ineffective assistance of counsel are set forth as follows:
“The Sixth Amendment right to counsel is the right to the effective assistance of counsel, and the benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” 236 Kan. 650, Syl. ¶ 2.
We have adopted the two-pronged test of Strickland:
“A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial.
“(a) The proper standard for judging attorney performance is that of reasonably effective assistance, considering all the circumstances. When a convicted defendant complains of the effectiveness of counsel’s assistance, the defendant must show that counsel’s representation fell below an objective standard of reasonableness. Judicial scrutiny of counsel’s performance must be highly deferential, and a fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time. A court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.
“(b) With regard to the required showing of prejudice, the proper standard requires the defendant to show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” 236 Kan. 650, Syl. ¶ 3.
The trial court’s ruling that “Mr. Albin’s representation of the defendant was certainly adequate pursuant to case law, pursuant to his experience in these types of cases, and pursuant to what this Court was able to observe.” We have further stated that much deference and reliance must be placed upon the wisdom and determination of the trial judge who saw all of the proceedings first hand as they happened. Chamberlain, 236 Kan. at 659-60.
The evidence brought forward by Brown in his pro se motion was not complemented by any additional evidence. No witnesses supported the allegations he made. Nor were any facts in the record argued in support of the allegations. Brown did not submit the names and addresses of the witnesses that he says Albin failed to interview. Brown asserts in his motion that statements of Albin were prejudicial, but he does not offer any evidence to support this assertion.
The strongest argument made by Brown is that Albin’s statements concerning Cordray presented a conflict of interest. This relates to Albin’s statement in his affidavit that “I do like Shawn. It is true that I said that when I got Charles off, I would represent Shawn because I fully expected him to be charged with the murder that he committed while in a drunken condition.”
There is no showing that this statement precluded Albin’s ability to examine Cordray, and his belief that Cordray was the killer is consistent with the trial strategy. Albiris handling of Cordray does not show ineffective assistance of counsel.
Based upon the factual showing before us, the trial court’s ruling is correct. Brown has failed to meet either prong of the Chamberlain test. The trial court’s ruling that effective assistance of counsel existed in this case is affirmed.
Did cumulative error deprive Brown of a substantially fair trial?
Brown’s final argument that cumulative error exists in this case does not have any merit. Under the totality of the circumstances, the matters raised did not prejudice Brown and deny him, a fair trial. There was substantial direct evidence as well as circumstantial evidence to justify and uphold the jury verdict. The contention of cumulative error is without merit. State v. Lumbrera, 252 Kan. 54, Syl. ¶ 1, 845 P.2d 609 (1992).
The trial was certainly not perfect, but no party is entitled to one. A review of the record, however, shows that a fair and impartial trial was held.
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
Jose Avalos appeals from the district magistrate judge’s order authorizing his prosecution as an adult pursuant to K.S.A. 38-1636(f).
During the early morning hours of February 4, 1996, there were a number of young people at a party at 1809 Chesterfield in Garden City, Kansas. Many were members of the YC gang. A fight began in which Juan Ayon was hit by six or more people, including Adam Valdez and Avalos. When Ayon fell down, his assailants hit and kicked him. Then Richard Garcia, the gang’s leader, said to “take care of him.” Avalos and Valdez left the party in Juan Ayon’s car with Ayon in it.
Avalos and Valdez drove Ayon to a gang hangout just outside the city limits. They took him out of the car and beat him some more. Then, with Avalos standing outside the car, Valdez drove back and forth over Ayon. Avalos and Valdez left Ayon’s body at the hangout, drove into town, and abandoned Ayon’s car.
The cause of Ayon’s death was internal bleeding from massive trauma. In the pathologist’s opinion, “the instrumentality of death was a vehicle.” He believed that Ayon had been run over at least three times by an automobile.
Avalos was born February 17, 1981. He was nearly 15 at the time of Ayon’s murder. He lived at home with his mother; his school attendance was poor. He had been suspended several times for long periods. In addition, when not suspended, he did not attend regularly.
Avalos’s first contact with law enforcement was in August 1993, when he was 12. By mid-February 1996, 31 contacts between Avalos and law enforcement authorities had been recorded. The record shows that a contact did not necessarily involve a violation of law, but it does not specify how many did and did not. He was known by law enforcement officers as a gang member, and all contacts with Avalos therefore were described as “gang-related.” The record contains no information about juvenile charges or adjudications for Avalos.
Gordon Duncan, a psychologist, administered a series of tests for the purpose of assisting the magistrate judge in determining Avalos’ intellectual and psychological maturity. Avalos’ IQ was measured at 73, with 69 being considered mentally deficient and 70 to 79 “borderline.” His functioning is that of a 9- to 10-year-old child, and he views the world that way. According to Duncan, IQ does not measure sophistication. There is a correspondence between IQ and maturity, however, in that maturity is based “on knowledge that one gains through gaining intellect.” Avalos’ personality was described by Duncan as being “totally dependent,” and he was said to be “suffering] from a low-grade dysthymic-type depression.” Duncan testified that Avalos would benefit more from a treatment plan in a rehabilitation process that was designed for a 9-or 10-year-old than from one designed for an adult. The district magistrate authorized that Avalos be prosecuted as an adult. Avalos eventually entered an Alford plea of guilty to felony murder, and he was sentenced to life imprisonment.
K.S.A. 38-1681(a) provided that a juvenile could take an appeal from an order authorizing prosecution as an adult but that it could not be taken until after conviction. The journal entry of sentencing was signed on December 13 and filed on December 16, 1996. On December 17, 1996, Avalos filed a timely notice of appeal from the order authorizing prosecution as an adult. See K.S.A. 38-1681(b).
Avalos was 14 years old at the time of the offenses, less than 2 weeks from his 15th birthday. K.S.A. 38-1636(f)(1) provided that a juvenile 14 years of age could be prosecuted as an adult if “there is substantial evidence that the respondent should be prosecuted as an adult for the offense with which the respondent is charged.” K.S.A. 38-1636(e) provides:
“In determining whether or not prosecution as an adult should be authorized, the court shall consider each of tire following factors: (1) The seriousness of the alleged offense and whether the protection of the community requires prosecution as an adult; (2) whether the alleged offense was committed in an aggressive, violent, premeditated or willful manner; (3) whether the offense was against a person or against property, greater weight being given to offenses against persons, especially if personal injury resulted; (4) the number of alleged offenses unadjudicated and pending against the respondent; (5) the previous history of the respondent, including whether the respondent had been adjudicated a delinquent or miscreant under the Kansas juvenile code or a juvenile offender under this code and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) the sophistication or maturity of the respondent as determined by consideration of the respondent’s home, environment, emotional attitude, pattern of living or desire to be treated as an adult; (7) whether there are facilities or programs available to the court which are likely to rehabilitate the respondent prior to the expiration of the court’s jurisdiction under tins code; and (8) whether tire interests of the respondent or of the community would be better served by criminal prosecution.”
The standard applied by this court in reviewing the decision to authorize prosecution as an adult is whether it is supported by substantial evidence. See State v. Claiborne, 262 Kan. 416, 420, 940 P.2d 27 (1997). Avalos contends that the district magistrate’s consideration of the question of certification was inadequate. He contends that she failed to mention the statutory factors and misinterpreted data. As a result, the argument continues, the magistrate judge concluded that Avalos should be prosecuted as an adult even though the State did not present substantial evidence to support the authorization.
Essentially the same complaints were made about the trial judge’s decision in State v. Vargas, 260 Kan. 791, 926 P.2d 223 (1996). This court concluded:
“While the judge’s analysis could have been more detailed, his comments establish that he considered not only the gravity of the offense, but also Vargas’ prior juvenile history, the pending juvenile matters, the aggressive manner in which the crime was committed, the fact that the crime was against a person rather than property, and the interest of the community in prosecuting the defendant as an adult. Under these circumstances and mindful that the failure to find one or more of the factors adverse to respondent does not preclude the trial court from concluding that respondent should be prosecuted as an adult, [citation omitted], we hold there was substantial evidence to support the court’s decision to allow the prosecution of Vargas as an adult.” 260 Kan. at 800-01.
Here are the pertinent portions of the magistrate judge’s comments in the present case:
“[T]his is a very difficult case in which to make a decision as to certification. I think the biggest problem, or the hardest criteria to determine hinges upon the evaluation and testimony of Gordon Duncan.
“In reviewing the evaluation and my notes concerning his testimony, it appears, obviously, that this young man does not function IQ wise at his chronological age wise. But, in further review and consideration, that all appears to relate to education.
“In the breakdown of the different sections that this respondent falls in . . . [i]t all goes to grade average and grade age equivalent: letter or word identification; comprehension; calculation; applied problems; dictation; writing; science; social studies; humanity. All of those tend to go toward education.
“It was clear from the testimony that this young man has chosen of his own volition not to attend school. Which obviously would lead one to believe that he is not going to function at age 14 or 15, which he didn’t go to school in these areas. But you also have to look at the other testing and consider all of that.
“And, then, in reviewing the statutory requirements and consideration it is fairly clear that in most, if not all, of the factors to be considered, the State has more than met its burden of proof.
“The main hangup, as I stated previously, was the evaluation. But in reviewing everything that was presented in the totality of the circumstances, I am going to find that the State has met its burden and certify this young man to stand trial as an adult.”
In response to Avalos’ complaint that the magistrate judge never mentioned the statutory factors, the State cites Claiborne and Vargas for the proposition that each statutory factor must be consid ered but not necessarily mentioned. In Claiborne, the district court several times mentioned that there were eight factors to be taken into consideration, expressly cited four of them, and dwelled on only one. This court concluded that there was substantial evidence to support Claiborne’s certification. 262 Kan. at 421. In Vargas, the district judge noted that the statutory factors were to be considered, and this court concluded that “his comments establish that he considered” nearly all of them. 260 Kan. at 800-01.
In the present case, the district magistrate’s comments on the record reveal very little about her deliberations. As defendant points out, the magistrate judge failed to mention “even one” of the statutory factors. However, K.S.A. 38-1636(e) does not require the magistrate to mention the factors. This court’s standard applies to the evidence rather than to the analysis of the decision maker. A review? of the evidence as it pertains to the statutory factors shows that there is substantial evidence supporting the certification. (1) The offense is first-degree murder, and the evidence shows that Avalos participated in Ayon’s murder because he was told to do so by the leader of his gang. (2) The murder was committed in an aggressive, violent, premeditated, and wailful manner. (3) The offense was against a person. (4 and 5) The record contains no information on adjudicated or unadjudicated juvenile offenses or charges. K.S.A. 38-1636(e) provides that “[t]he insufficiency of evidence pertaining to any one or more of the factors listed in this subsection shall not in and of itself be determinative of the issue.” (6) Duncan’s testimony and report indicate that Avalos is intellectually very immature and that he is “a prime candidate for gangs” due to his “low self-esteem and his lack of family support and his lack of general populace support.” (7 and 8) Duncan testified that Avalos would benefit more from a treatment plan in a rehabilitation process that w?as designed for a 9-or 10-year-old than from one designed for an adult. There was no evidence of the availability of a plan or process designed for a 9-or 10-year-old. Avalos’ demonstrated affinity for gang membership and perpetration of a violent murder at the direction of a gang leader may indicate that the community would be better served and protected by criminal prosecution than by juvenile adjudication. In any event, even if the evidence was inadequate as to any one factor, such inadequacy does not preclude prosecution as an adult.
We conclude that there is substantial evidence to support the magistrate’s decision to certify the prosecution of Avalos as an adult. There was no error in certifying Avalos for prosecution as an adult.
The judgment of the district court is affirmed. | [
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The opinion of the court delivered by
Six, J.:
This is a first impression K.S.A. 58-1301 et seq., Americans with Disabilities Act (ADA), 42 U.S.C. 12101 et seq. (1994) mandamus action. Link, Inc., a center for independent living, and two wheelchair users (Link) sought a writ of mandamus directing the City of Hays (City) to enforce the ADA for existing Title III facilities (public accommodations and services operated by private entities). The district court interpreted K.S.A. 58-1304(a)(3), agreed with Link’s contentions, and granted the writ. The writ di rects the City to enforce the ADA as to all existing public accommodations, even those built solely with private funds before the ADA was enacted. The district court acknowledged that most of the business buildings in the City are included in that category. The City appeals.
An amicus curiae brief supporting the City’s position was filed by the League of Kansas Municipalities. Our jurisdiction is under K.S.A. 20-3018(c), a transfer from the Court of Appeals on our own motion.
The question is whether K.S.A. 58-1304(a)(3) requires the City to enforce the ADA accessibility standards for existing Title III public accommodations and commercial facilities built without municipal funds. Or, in the words of the district court: “[D]oes the city have the legal responsibility to enforce accessibility standards for privately owned and privately funded buildings built before the standards were required for new construction?” The answer is, “No.” We reverse the district court and vacate the writ of mandamus.
DISCUSSION
This case arose because a motel in the City did not have a wheelchair accessible restroom. Link complained to the City. The City responded that it had no duty to enforce the ADA as to the moteí. Link’s mandamus action against the City followed.
The interpretation of K.S.A. 58-1304(a)(3) is a question of law; thus, our review is unlimited. See Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, Syl. ¶ 1, 953 P.2d 1027 (1998).
ADA - Background
The current version of K.S.A. 58-1304 was enacted in 1994. Before 1994, cities were not obligated to enforce the ADA as to existing Title III buildings built solely with private funds. Our inquiry here is whether the 1994 legislation required cities to do so.
Title III of the ADA grants rights to disabled customers of private businesses, enabling individuals with disabilities to participate more fully in mainstream society. 1 Perritt, Americans with Disabilities Act Handbook, p. 246 (3d ed. 1997) (ADA Handbook).
K.S.A. 58-1301b(d) defines Tide III:
" ‘Title III’ means 28 CFR Part 36, nondiscrimination on the basis of disability by public accommodations and commercial facilities as required by section 301 et seq. of the Americans with disabilities act of 1990, 42 USCA 12,181 et seq.”
A broad spectrum of private and public entities are subject to Title III (for example, gas stations, hotels, health clubs, restaurants, theaters, and hospitals). A Title III facility has a prima facie duty:
“1. To make reasonable modifications in policies, practices, or procedures when such modifications are necessary to afford goods, services, facilities, privileges, advantages, or accommodations to disabled individuals.
“2. To remove architectural barriers and communication barriers that are structural in nature in existing facilities when such removal is readily achievable.
“3. To provide auxiliary aids and services necessary to ensure that disabled persons are not excluded, denied services, segregated, or treated differently from other individuals.
“4. To make goods, services, facilities, privileges, advantages, or accommodations available through alternative methods when such methods are readily achievable, and when the removal of a barrier is not readily achievable. . . .
“5. To design and construct new facilities and alterations in existing facilities to make the facilities readily accessible to and usable by persons with disabilities.”
ADA Handbook, p. 247 (citing 42 U.S.C. § 12182(b)(2)(A)(ii)-(v) (1994); 42 U.S.C. § 12183 (a)(1) (1994).
Liability based on the above duties may be avoided by showing: (1) modifications would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations; (2) removal of barriers is not readily achievable; (3) meeting the requirements is structurally impracticable; (4) cost is disproportionate to the accessibility benefit; and (5) the use of auxiliary aids and services would result in fundamental alteration or undue burden. ADA Handbook, p. 247-48 (citing 42 U.S.C. § 12182(b)(2)(A)(ii), (iv), and (v); 42 U.S.C. § 12183(a)(1).
The legislature expressed its intent in K.S.A. 58-1303: “This act is intended to prohibit discrimination on the basis of disability by Title II and Title III entities. All facilities covered by this act are to be designed, constructed and altered to be readily accessible to and usable by individuals with a disability.” Our interpretive responsibility is to identify the City’s role in the enforcement mechanism contemplated by the legislature.
Link argues municipalities are the Title III enforcers for all public accommodations. The City disagrees. The City contends it is only charged with enforcing Title III as to municipal structures, construction of new facilities, and renovation of existing structures. Enforcement is effected by issuing or denying building permits.
The district court observed that if the City is not responsible for enforcing Title III, then the “enforcement of the majority of buildings would not be clearly dealt with by the act.” Link is not without redress for the alleged Title III violations. The ADA provides an extensive mechanism of enforcement. Title III plaintiffs have a federal court remedy. They may sue owners of public accommodations who do not comply with the ADA. Specific relief requiring owners to make their goods and services accessible to the disabled is available. 42 U.S.C. § 12188(a)(1) provides a private right of action for injunctive relief. See 42 U.S.C. § 2000a-3(a) (1994). ADA plaintiffs may also seek attorney fees. Further, the United States Attorney General must investigate alleged violations of Title III, and may sue for pattern-and-practice violations or discriminatory acts presenting issues of “general public importance.” See 42 U.S.C. § 12188(b)(1)(A)(i) and § 12188(b)(1)(B). Civil penalties to vindicate the public interest may be assessed of up to $50,000 for a first violation and up to $100,000 for additional violations. ADA Handbook, p. 362 (citing 42 U.S.C. § 12188[b][2][C]).
The State of Kansas is allowed to supply additional methods of enforcement. State ADA enforcement responsibilities are controlled by K.S.A. 58-1304(a). Paragraphs (1) and (2) of subsection (a) deal with public schools and government facilities and are not at issue here. Enforcement in these areas is assigned to the State Board of Education and the Secretary of Administration, respectively. Paragraph (4) deals with new construction, placing enforcement on “the building inspector or other agency or person designated by the governmental entity in which the facility is located.” K.S.A. 58-1304(a)(4). The City acknowledges that it has this responsibility. K.S.A. 58-1304(b) states: “The attorney general of the state of Kansas shall oversee the enforcement of this act.”
It is the remaining provision of the enforcement statute, K.S.A. 58-1304(a)(3), that must be interpreted to decide the issue here.
Before the 1994 amendments, K.S.A. 1993 Supp. 58-1304(3) provided:
“For all construction or renovation where funds of a county, municipality or other political subdivision are utilized, the governing body thereof or an agency thereof designated by the governing body [shall be responsible for enforcement].”
After the 1994 amendments, K.S.A. 58-1304(a)(3) provides:
“for all existing facilities, and the design and construction of all new, additions to and alterations of, any local government facilities where funds of a county, municipality or other political subdivision are utilized, the governmental entity thereof or an agency thereof designated by the governmental entity [shall be responsible for enforcement].”
The district court reasoned that the 1994 amendments changed the City’s K.S.A. 58-1304 duties. The effect of an affirmance of the district court’s ruling would be that Kansas municipalities must bring all buildings open to the public into compliance with Title III of the ADA. The amicus emphasizes the broad impact of affirming the district court’s mandamus writ.
Link, although not arguing with the amicus’ conclusion, asserts that the 1994 amendments to K.S.A. 58-1304 made a substantial change in existing law. Link’s position is that
“all existing public accommodations shall conform to the [ADA] by being altered where it is readily achievable. The City of Hays has the responsibility for enforcing this law for existing facilities, and may refer evidence concerning ADA violations to the city attorney, who may then file a lawsuit asking for an injunction requiring a facility to perform alterations to comply with the ADA. . . .”
Although the result described by Link’s position is commendable, we are limited to interpreting statutory law as it is, not as it should be; thus, we disagree with Link’s conclusion. Preliminarily, we dispose of the City’s contention that the Kansas Attorney General is responsible for enforcing Title III as to public accommodations built with private funds. In the federal scheme, the United States Attorney General must investigate alleged violations of Title III. 42 U.S.C. § 12188(b)(1)(A)(i). Thus, the federal statute provides a mechanism of enforcement through the Attorney General. However, the Kansas Attorney General, who is not a party to this action, is only responsible for overseeing enforcement. Link does not contend Title III enforcement responsibility lies with the Kansas Attorney General. The role of the Kansas Attorney General in overseeing enforcement of the ADA is not before us in this case.
Ambiguity
The first statutory interpretation question we must answer is whether K.S.A. 58-1304(a)(3) is ambiguous. The parties spend much time in their briefs invoking rules of grammar in their search for legislative intent. The district court held K.S.A. 58-1304(a)(3) is unambiguous, agreeing with the reading advanced by Link.
Our rules on statutory ambiguity teach us that if a statute is plain and unambiguous, we must give effect to the expressed statutory language. In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 7, 930 P.2d 1366 (1997). A statute is ambiguous when two or more interpretations can fairly be made. Sterling Drilling Co. v. Kansas Dept. of Revenue, 9 Kan. App. 2d 108, 109, 673 P.2d 456 (1983), rev. denied 234 Kan. 1078 (1994).
Two distinct interpretations of K.S.A. 58-1304(a)(3) are advanced by the parties. Link argues that the opening clause of K.S.A. 58-1304(a)(3), “for all existing facilities,” means all existing public accommodations must be brought into compliance by the municipality in which they are located. In agreeing with Link, the district court pointed out there are two groups of structures in subsection (3). The first group is “all existing facilities.” The second group is “the design and construction of all new, additions to and alterations of, any local government facilities.” According to the district court, these two distinct groups are clearly separated by “and”; consequently, no ambiguity exists.
Both the City and the amicus counter that the K.S.A. 58-1304(a)(3) clause “for all existing facilities” is modified by the later statement “where funds of a county, municipality or other political subdivision are utilized.” Thus, they interpret K.S.A. 58-1304(a)(3) to state: “for all existing facilities where funds of a county, municipality or other political subdivision are utilized [enforcement lies with the city].” The amicus argues that this modification is the only logical modification because “to specify that local government facilities utilize local government funds is superfluous.” We agree.
The district court relied on a grammatical principle known as the “last antecedent rule.” The last antecedent rule says qualifying words are “ordinarily confined to the last antecedent, or to the words and phrases immediately preceding.” Barten v. Turkey Creek Watershed Joint District No. 32, 200 Kan. 489, 504, 438 P.2d 732 (1968). This rule, applied to K.S.A. 58-1304(a)(3), would preclude modification of the phrase “all existing facilities” by “where funds of a county, municipality or other political subdivision are utilized.” However, the last antecedent rule is flexible. See NEA-Goodland v. U.S.D. No. 352, 13 Kan. App. 2d 558, 561-62, 775 P.2d 675, rev. denied 245 Kan. 785 (1989) (if application of the last antecedent rule “ would involve an absurdity, do violence to the plain intent of the language, or if the context for other reason requires a deviation from the rule, it will be necessary and proper to look for another antecedent’ ”) (quoting In re Petition of School District of Omaha, 151 Neb. 304, 307-08, 37 N.W.2d 209 [1949]). Under the district court’s interpretation, the last antecedent is “local government facilities,” modified by “where funds of a county, municipality or other political subdivision are utilized.” We disagree with the district court’s interpretation.
Professor Karl N. Llewellyn, commenting on the Canons of Statutory Construction, observes: “There are two opposing Canons on almost every point.” Llewellyn, The Common Law Tradition: Deciding Appeals, p. 521 (1960). His classic demonstration of this proposition appears in Appendix C., p. 527: “Qualifying or limiting words or clauses are to be referred to the next preceding antecedent,” but “[n]ot when evident sense and meaning require a different construction.”
We have difficulty imagining the building or alteration of a local government facility that would not use local government funds. A creditable, plain-reading argument can be made for either parties’ interpretation. Because neither interpretation places an unnatural reading on the statute, judicial construction is required. See Sterling Drilling Co., 9 Kan. App. 2d at 110.
The primary rule of statutory construction is to give effect to the statute’s clear meaning. If the statute is ambiguous, we are to determine legislative intent and give effect to that intent. Kansas Power & Light Co. v. Kansas Corporation Comm’n, 237 Kan. 394, Syl. ¶ 2, 699 P.2d 53 (1985). Having concluded that the statute is ambiguous, we next ask: What did the legislature intend K.S.A. 58-1304(a)(3) to mean?
Legislative Intent
Link strongly suggests that we look to K.S.A. 58-1303. K.S.A. 58-1303 says:
“This act is intended to prohibit discrimination on the basis of disability by Title II and Title III entities. All facilities covered by this act are to be designed, constructed and altered to be readily accessible to and usable by individuals with a disability.”
The amicus contends the 1994 amendments to K.S.A. 58-1304(a)(3) were not intended to be a departure from existing law, but were intended to bring Kansas up-to-date with federal law. Clearly, before the 1994 amendments, municipalities were not charged with enforcing the ADA as to existing public accommodations built solely with private funds. Reading K.S.A. 58-1304(a)(3) as the amicus suggests, there is no substantial departure from prior law. Thus, under the rationale advanced by the amicus, if the legislature intended a major departure in 1994, the departure would have been identified in the legislative history. We believe the amicus crafts a logical argument.
The ADA’s Legislative History
The legislative history of the 1994 amendments to K.S.A. 58-1304 reveals that no major change was intended by the legislature. The principal aim of the 1994 amendments was to harmonize state law with federal law and, in so doing, make ADA compliance easier for the private sector. The 1994 legislative committee minutes specifically address the question of whether the enforcement role of government entities would change after the amendments. No enforcement roles were to change.
In 1994, House Bill 3028 was drafted as a joint effort (H.B. 3028 became L. 1994, ch. 195, amending K.S.A. 58-1304). The agencies involved included the Kansas Attorney General, Department of Administration, Division of Architectural Services, Kansas Commission on Human Rights, the Independent Living Centers, and the state ADA coordinator. Mary Jane Stattelman, an Assistant Attorney General, testified in committee that the changes were necessary to simplify the law. She said that in 1992, the legislature amended K.S.A. 58-1301 et seq. to assist disabled individuals in obtaining access to public accommodations in Kansas. However, the discrepancies between the 1992 version of K.S.A. 58-1301 et seq. and the federal ADA caused confusion for business owners. Ms. Stattelman cited the following example:
“For instance, the federal act exempts churches and private clubs yet the current state law covers these entities; federal law makes a distinction between a public accommodation (i.e. restaurant or grocery store) and a commercial facility (i.e. a warehouse); however, the current state law does not make this distinction. “ Testimony on Behalf of Attorney General Robert T. Stephan, House Committee on Public Health and Welfare (Feb. 22, 1994).
Ms. Stattelman also observed, as summarized in the committee minutes: “Changes proposed do not change the enforcement role of any governmental entity and should simplify the building code officials’ role. . . . [Tjhere will be no fiscal impact, and [the changes] actually may decrease costs of complying with the Americans [with] Disabilities Act.” (Emphasis added.) Minutes of the House Committee on Public Health and Welfare (Feb. 22, 1994).
Further testimony was offered by the Kansas Commission on Disability Concerns and the state ADA coordinator. “This bill would change the current language regarding the specifications for making buildings accessible to people with disabilities to more closely parallel the Americans with Disabilities Act Accessibility Guidelines.” Testimony on H.B. 3028 by Martha Gabehart, Kansas Commission on Disability Concerns, House Committee on Public Health and Welfare (Feb. 22, 1994). “House Bill 3028 parallels the Americans with Disabilities Act. There is no fiscal note involved in this bill nor is there any hardship to consider.” Testimony of Jane Knight, state ADA Coordinator, House Committee on Public Health and Welfare (Feb. 22, 1994).
Testimony addressing H.B. 3028 consistently stated that the amendments were designed to bring state and federal law together. There are no specific references in the legislative history to a new K.S.A. 58-1304(a)(3) enforcement requirement by municipalities.
Link argues that if the City does not have the duty to enforce the ADA as to existing Title III facilities, no Kansas entity does. Thus, Link concludes, the mandate of K.S.A. 58-1301 that all existing facilities comply with the ADA is meaningless. The City counters that the ADA is geared to the future, its goal being that over time, access will be the rule rather than the exception, citing U.S. Equal Employment Opportunity Commission & U.S. Department of Justice, ADA Handbook (1992).
The positions advanced by the parties frame a major policy question for the State, a question best answered by the legislature.
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The opinion of the court was delivered by
Six, J.:
Amoneo D. Lee was convicted by a jury of first-degree murder (K.S.A. 21-3401[a]) and criminal possession of a firearm (K.S.A. 21-4204[a][4]).
We review whether the district court erred in: (1) finding probable cause at the preliminary hearing to bind Lee over for trial on his first-degree murder charge and (2) admitting a journal entry as evidence of the type and nature of Lee’s prior conviction of aggravated battery in the State’s proof of the firearms charge. We answer the first issue, “no” and the second, “yes.” Finding no reversible error, we affirm.
Our jurisdiction is under K.S.A. 22-3601(b)(1); Lee’s murder conviction is an off-grid crime.
FACTS
The victim, Carl G. Mason, Jr., was shot in the head at close range during the early morning hours of November 3, 1995. The events leading to Mason’s death were testified to at the preliminary hearing by a detective and Lee’s girlfriend, Karen Sandoval, and at trial by a variety of witnesses including Sandoval. Sandoval, who had given a tape-recorded statement shortly after the shooting, was a reluctant witness at the preliminary hearing. A transcript of her tape-recorded statement was admitted as evidence. During the trial, Sandoval’s tape-recorded statement was played for the jury. Lee was convicted of criminal possession of a firearm under K.S.A. 21-4204(a)(4). Before trial, he filed a motion in limine, requesting an order prohibiting: (1) the State from eliciting testimony regarding his probation and/or parole and (2) the State’s witnesses or counsel from testifying or listing testimony concerning the fact that he was convicted of aggravated battery.
Lee agreed that rather than putting the felony conviction of aggravated battery before the jury, he would “stipulate that he has been convicted of a felony within ten years of allegedly possessing the firearm at the time of the commission of the present offense and that such felony conviction has not been expunged nor pardoned.” He relied on Old Chief v. United States, 519 U.S. 172, 136 L. Ed 2d 574, 117 S. Ct. 644 (1997), as support for his motion.
The hearing on Lee’s motion in limine took place during a recess in the voir dire proceedings. District Judge Ballinger granted the first request and denied the second, saying:
“And the record needs to reflect this issue was originally submitted to Judge Pilshaw, who was assigned to rehear this case a couple [of] weeks ago. Things fell apart. It was continued. Judge Pilshaw did not rule on that motion in limine. She did give some thoughts on it. She actually didn’t rule on it.
“I am going to be consistent. I was the trial court at die first trial. I’m going to deny that motion, and I look forward to the Court of Appeals telling me whether I’m wrong in following the law that’s been part of the State of Kansas for, oh, 20 or 30 years. So overruled at this point, Mr. Brown [defense counsel].”
Defense counsel added:
“And to elaborate on that, that is correct; she [Judge Pilshaw] indicated if the case was reassigned to her then she would announce her ruling, but we’re back here.”
The State, through the testimony of the detective who investigated the prior felony, introduced a certified copy of the journal entry of judgment of the aggravated battery conviction. Lee presented no evidence. Additional facts are set out in our discussion.
DISCUSSION
The Preliminary Hearing
Lee’s claim of inadequate evidence at the preliminary hearing is controlled by State v. Henry, 263 Kan. 118, 129-30, 947 P.2d 1020 (1997). See State v. Butler, 257 Kan. 1043, 1059, 897 P.2d 1007 (1995), modified on other grounds 257 Kan. 1110, 1112-13, 916 P.2d 1 (1996).
Where a defendant has been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial. Henry, 263 Kan. at 129; Butler, 257 Kan. at 1062.
Lee argues that the State failed to introduce evidence sufficient to cause a reasonable person to believe Lee had committed the crime. Lee’s primary objection appears to center on Sandoval’s statement to police. He asserts the statement was coerced and, therefore, incompetent evidence was introduced, violating due process.
Lee acknowledges that Butler states the law on this issue. However, Lee does not show how the alleged preliminary hearing error prejudiced him during trial. In fact, Lee’s appellate brief stops in mid-sentence:
“This Court has held that, in any event, ‘where an accused has gone to trial and been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is harmless unless it appears that the error caused prejudice at trial.’ (Emphasis added.) Butler, 257 Kan. at 1062. Here, the error caused”
The State’s evidence at the preliminary hearing was sufficient to show that a felony was committed and that defendant could have committed the felony.
We find no merit in Lee’s preliminary hearing claim. We have reviewed the evidence presented at trial. Even without Sandoval’s statement, the evidence at trial was sufficient to establish beyond a reasonable doubt that Lee murdered the victim. Various people heard Lee’s threats, observed his anger, heard him say he shot Mason and was going to dump the body, and saw him point the gun at Mason. He also was seen with Mason’s body.
The Firearms Charge
Lee contends that because he offered to stipulate to the prior felony conviction of aggravated battery, it was error for the district court to admit evidence of the conviction. Lee also asserts that Judge Pilshaw sustained his motion in limine and that the motion was reconsidered and later denied by Judge Ballinger. While there is a minute sheet indicating that Judge Pilshaw sustained Lee’s motion in limine, there is no journal entry. Defense counsel agreed with Judge Ballinger that Judge Pilshaw had not ruled on the motion. There is no merit to this assertion by Lee.
Our standard of review on admissibility of evidence is abuse of discretion. State v. Wagner, 248 Kan. 240, 243, 807 P.2d 139 (1991).
K.S.A. 21-4204(a)(4), under which Lee was charged, provides in part,
“(a) Criminal possession of a firearm is:
“(4) possession of any firearm by a person who, within the preceding 10 years, has been convicted of: (A) A felony under K.S.A. 21-3401, 21-3402, 21-3403, 21-3404, 21-3410, 21-3411, 21-3414, 21-3415, 21-3419, 21-3420, 21-3421, 21-3427, 21-3502, 21-3506, 21-3518, 21-3716, 65-4127a or 65-4127b or K.S.A. 1995 Supp. 65-4160 through 65-4164, and amendments thereto . . . .”
The State presented evidence that Lee had a prior conviction for aggravated battery (K.S.A. 21-3414). Aggravated battery is one of the specific crimes listed in K.S.A. 21-4204(a)(4).
We turn now to our case law addressing the firearm possession issue. In State v. Farris, 218 Kan. 136, 542 P.2d 725 (1975), Farris was charged with two counts of unlawful possession of a firearm, under an earlier version of K.S.A. 21-4204. The State introduced an entire court file which showed that Farris had been convicted of a variety of crimes and had his probation revoked. The file was introduced to prove an element of the two current firearms charges. Farris objected to the file’s admission, arguing that his character and credibility had been drawn into question through this evidence.
We disapproved the admission, saying:
“The admission of the entire file in this case was not a proper practice for the file contained much extraneous and irrelevant material which could be confusing to the jury. We cannot condone such a practice. An authenticated copy of the journal entry of conviction'should have been edited to remove reference to felony charges which were not established and upon which the state was not relying to prove the necessary element of prior conviction of crime. The practice of introducing an entire court file in such cases should be discontinued.” 218 Kan. at 139.
However, based on the particular facts of the case, Farris’ conviction was affirmed. 218 Kan. at 140.
Earlier, in State v. Johnson, 216 Kan. 445, 532 P.2d 1325 (1975), we reviewed facts similar to the facts here. Johnson was charged with aggravated robbery and unlawful possession of a firearm, again, based on an earlier version of K.S.A. 21-4204. Immediately before trial, Johnson offered a signed admission to the court, acknowledging that he had been convicted of a felony within 5 years of the current offenses. Johnson filed a motion in limine, requesting that the State not be allowed to introduce evidence at trial of his prior convictions for rape and second-degree kidnapping. The district court denied Johnson’s motion. 216 Kan. at 446.
Johnson contended that the district court erred in allowing the State to introduce the nature of his prior felony convictions in light of his admission of those prior convictions. We rejected his contention. Citing State v. Wilson, 215 Kan. 28, 523 P.2d 337 (1974), we endorsed the established rule that a defendant’s admission does not prevent the State from presenting separate and independent proof of the fact admitted. 216 Kan. at 448. We note that the Wilson court relied on the Florida Supreme Court’s opinion Arrington v. State, 233 So. 2d 634 (Fla. 1970). 215 Kan. at 32. Arrington was overruled by Brown v. State, 719 So. 2d 882, 886, 889 (Fla. 1998). Brown, which we discuss later in this opinion, supplies the rationale we adopt in resolving the firearms charge issue.
The district court here, following Farris and Johnson, admitted the journal entry proving Lee’s prior conviction. A witness was permitted to testify concerning the nature of the conviction.
Lee suggests that Kansas law should be changed to conform to Old Chief v. United States, 519 U.S. 172, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997). Old Chief was convicted of assault with a dan gerous weapon, use of a firearm, and possession of a firearm by anyone with a prior felony conviction. Before trial, he moved for an order requiring the government to limit its evidence to a statement that Old Chief had been convicted of a felony. He offered to stipulate that he had been convicted of a prior felony. The government refused to join in the stipulation, insisting on its right to prove the case its own way. The district court agreed with the government. The Ninth Circuit Court of Appeals affirmed in a May 31, 1995, unpublished opinion. See 519 U.S. at 177.
The Supreme Court reversed. Old Chief stands as a narrow exception to “the accepted rule that the prosecution is entitled to prove its cáse free from any defendant's option to stipulate the evidence away.” 519 U.S. at 189. Justice Souter, authoring the majority opinion for a divided court, framed the principal issue as one concerning
“the scope of a trial judge’s discretion under Rule 403, which authorizes exclusion of relevant evidence when its ‘probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.’ Fed, Rule Evid. 403.” 519 U.S. at 180.
Although the Old Chief Court believed that the risk of unfair prejudice would vary from case to case, the majority reasoned that such risk
“will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious . . . .” 519 U.S. at 185.
Old Chief concluded:
“Given these peculiarities of the element of felony-convict status and of admissions and the like when used to prove it, there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the prosecution would prefer to place in evidence. For purposes of the Rule 403 weighing of the probative against the prejudicial, the functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent from the other. In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an .abuse of discretion to admit the record when an admission was available.” 519 U.S. at 191.
The facts in Old Chief are similar to the facts here. The element the prosecution was required to prove in both cases was the status of the defendant. Old Chief was construing a federal statute and federal rules of evidence.. 18 U.S.C. § 922(g)(1) (1994); Fed. R. Evid. 403. We are construing our own rules of evidence. Old Chief s construction is not binding here. See Atteberry v. Ritchie, 243 Kan. 277, 284, 756 P.2d 424 (1988) (state courts are not bound to follow a decision of a federal court, including the United States Supreme Court dealing with state law). However, the rationale of Old Chief is persuasive.
K.S.A. 60-445 is the evidentiary rule most similar to Fed. R. Evid. 403. K.S.A. 60-445 provides:
“Except as in this article otherwise provided, the judge may in His or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who had not had reasonable opportunity to anticipate that such evidence would be offered.”
In State v. Higgenbotham, 264 Kan. 593, 957 P.2d 416 (1998), we distinguished Old Chief on its facts. Higgenbotham offered to stipulate to his true identity for the State’s admitting into evidence a fraudulent Arizona driver’s license issued in the name of an alias.
“This case is distinguishable from Old Chief in that Higgenbotham’s legal status at the time of the crime was not an issue. His obtaining the fraudulent Arizona driver’s license was relevant to both the identity issue and his behavior during the criminal investigation. The general rule that a party need not be required to accept a stipulation is applicable.” 264 Kan. at 604.
Higgenbotham was not a status case.
The impact of Old Chief on a state conviction has been considered by two other state Supreme Courts. In Brown v. State, 719 So. 2d 882, Brown was convicted of possession of a firearm by a convicted felon. Certified copies of prior convictions were admitted into evidence despite Brown’s offer to stipulate to his convicted felon status. The Florida Appeals Court approved the admission of the evidence in question, relying on an earlier Florida case. 700 So. 2d at 448. The Florida Supreme Court reversed, adopting the rationale of Old Chief. The new Florida rule is:
“[W]hen a criminal defendant offers to stipulate to the convicted felon element of the felon-in-possession of a firearm charge, the Court must accept that stipulation, conditioned by an on-the-record colloquy with the defendant acknowledging the underlying prior felony conviction(s) and acceding to the stipulation. The State should also be allowed to place into evidence, for record purposes only, the actual judgment(s) and sentence(s) of the previous conviction(s) used to substantiate the prior convicted felon element of the charge.” 719. So. 2d at 884.
The Brown court was reviewing the Florida Evidence Code, “which is in essence a restatement of the Federal Rule 403.” 719 So. 2d at 887.
Brown relied on State v. Alexander, 214 Wis. 2d 628, 571 N.W. 2d 662 (1997). The Wisconsin statute construed in Alexander also parallels Federal Rule 403. Alexander was convicted of operating a motor vehicle while having a prohibited alcohol concentration of .08 or more. One of the elements of this offense is that the defendant must háve two or more prior convictions, suspensions, or revocations. The Alexander court posed the issue as
“whether the circuit court erroneously exercised its discretion when it allowed the introduction of evidence of two or more prior convictions, suspensions or revocations as counted under Wis. Stat. § 343.307(1), and further submitted that element to the jury when the defendant fully admitted to the element and the purpose of the evidence was solely to prove that element.” 214 Wis. 2d at 634.
The Alexander court concluded:
“Because . . . the purpose of the evidence was solely to prove the element of two or more prior convictions, suspensions or revocations, its probative value was far outweighed by the danger of unfair prejudice to the defendant. We conclude that admitting any evidence of the element of prior convictions, suspensions or .revocations and submitting the element to the jury in this case was an erroneous exercise of discretion.” 214 Wis. 2d at 634.
Because the evidence of guilt was overwhelming, Alexander reasoned the error was harmless and affirmed.
Old Chief was remanded to the Ninth Circuit with the observation that “we imply no opinion on the possibility of harmless error, an issue not passed upon below.” 519 U.S. at 192, n.11. In U.S. v. Harris, 137 F.3d 1058 (8th Cir. 1998), a divided panel held that to “warrant relief under Old Chief, the asserted error must not be harmless. [Citations omitted.] When evidence of a defendant’s guilt is overwhelming, the Old Chief violation is harmless.” 137 F.3d at 1060.
Federal Rule 403 authorizes the exclusion of relevant evidence where its “probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Old Chief relied on the danger of unfair prejudice. K.S.A. 60-445 does not have the “unfair prejudice” language. K.S.A. 60-445 refers to the exercise of discretion by the trial court when the evidence relates only to surprise. We have endorsed a trial court’s inherent power, “a rule of necessity,” to exclude any evidence which may unfairly prejudice a jury. State v. Davis, 213 Kan. 54, 57, 515 P.2d 802 (1973). We placed “unfair prejudice” in K.S.A. 60-445 when we held: “Evidence which is more prejudicial than probative is inadmissible pursuant to K.S.A. 60-445.” Ratterree v. Bartlett, 238 Kan. 11, Syl. ¶ 3, 707 P.2d 1063 (1985). Thus, K.S.A. 60-445, Federal Rule 403, and the Florida and Wisconsin statutes at issue in Brown and Alexander are similar.
We are involved here with balancing the legitimate interests of Lee and of the State at trial. In a firearm criminal possession case, what fact does the State seek to establish by offering into evidence a defendant’s prior record through a journal entry? The answer is the defendant’s status as a prior convicted felon. Lee agreed to stipulate to prior convicted felon status. We see no need to admit into evidence a journal entry reflecting the type and nature of a prior conviction in order to prove that Lee was a convicted felon.
Our holding today is consistent with U.S. v. Wacker, 72 F.3d 1453 (10th Cir. 1995) (decided before Old Chief). Wacker reviewed the exact question now before us. Lipp, one of the defendants, objected to the admission of journal entries detailing his prior felony convictions. The federal district court for Kansas overruled the objection. Wacker reversed, finding: (1) the admission was an abuse of discretion but (2) it was harmless error. 72 F.3d at 1474.
Wacker reasoned:
“Whereas the fact of a defendant’s prior felony conviction is material to a felon in possession charge, the nature and underlying circumstances of a defendant’s conviction are not. [Citations omitted.] The details of the defendant’s prior crime do not make it ‘more probable or less probable’ that the defendant is a convicted felon. See Fed. R. Evid. 401. Rather, this information tends only to color the jury’s perception of the defendant’s character, thereby causing unnecessary prejudice to the defendant. . . .
“. . . Today we hold that where a defendant offers to stipulate as to the existence of a prior felony conviction, the trial judge should permit that stipulation to go to the jury as proof of the status element [that the defendant is a convicted felon of IS U.S.C. § 922(g)(1) (1994)], or provide an alternate procedure whereby the jury is advised of the fact of the former felony, but not its nature or substance. [Citation omitted.] Correspondingly, in those situations where the defendant is willing to concede the existence of the prior felony conviction, the trial judge should ordinarily preclude the government from introducing any evidence as to the nature or substance of the conviction, as the probative value of this additional information generally will be overshadowed by its prejudicial effect under Federal Rule of Evidence 403.” 72 F.3d at 1472-73.
We adopt a limited rule for application in a status case. We hold: (1) The district court abused its discretion when it rejected Lee’s offer to stipulate to the fact of a prior conviction; (2) Browns evidentiary requirements are adopted for proof of convicted felon status in K.S.A. 21-4204(a)(4) firearm possession violation cases; and (3) any error in admitting the journal entry of Lee’s prior conviction was harmless. The result would not have been different if the prior conviction had come in by stipulation.
We are persuaded that the reasoning of Old Chief, Brown, Alexander, and Wacker should be adopted. The issue here and the new rule we apply in resolving the issue carry an extremely narrow focus. We are reviewing only the status element in a charged crime. We find no distinction between Federal Rule 403 and K.S.A. 60-445 based on the absence from 60-445 of the phrase “unfair prejudice.” Exclusion of evidence on the basis of undue prejudice has always been a prerogative of a common-law trial judge. Trial judges in this state have authority to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice. Under K.S.A. 60-445 “much is left to implication, but despite the deficiencies in language the rule operates in Kansas in conventional manner.” 1 Gard’s Kansas C. Civ. Proc. 3d Annot. § 60-445 (1997). Any doubt on this question is settled by Davis and Ratterree.
Unless there is a dispute over the status of the prior conviction (for example, was it or was it not a felony), the admission of the type and nature of the prior crime can only prejudice the jury. See Brown, 719 So. 2d at 886. Under the limited focus here, what countervailing interests support admission of the type and nature of the felony? There are none in a status case. If Lee’s previous conviction had been for any one of the more than 40 felonies not listed in K.S.A. 21-4204(a)(4), he would not be facing the criminal possession charge.
We acknowledge that the State has the right and, in fact the duty, to establish the elements of the crime charged. The State also has an interest in presenting its case in its own way by telling the story as the State wishes. But, Lee should be judged only on the crimes charged and, as Brown observed, “not being convicted on an improper ground due to the admission of evidence that carries unfairly prejudicial baggage.” 719 So. 2d at 887. As Old Chief reasoned:.
“This recognition that the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story has, however, virtually no application when the point at issue is a defendant’s legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him.” 519 U.S. at 190.
The element in dispute is whether Lee possessed the firearm on the date charged.
CONCLUSION
We adopt Brown’s analysis and hold: (1) When requested by a defendant in a criminal possession of a firearm case, the district court must approve a stipulation whereby the parties acknowledge that the defendant is, without further elaboration, a prior convicted felon. (2) At the same time, the State may place into the record, at its discretion, the actual judgment(s) and sentence(s) of the prior felony conviction(s). (3) Neither these documents nor the number and nature of the prior convictions should be disclosed to the trial jury. (4) Out of the jury’s presence and after consultation with counsel, the defendant should be required to personally acknowledge the stipulation and his or her voluntary waiver of his or her right to have the State otherwise prove the convicted felon status element beyond a reasonable doubt. (5) The defendant’s stipulation of convicted felon status satisfies the prosecution’s burden of proof for that element of the crime. (6) If the element of “convicted felon” is established by stipulation, “the judge may thereafter instruct the jury that it can consider the convicted felon status element of the crime as proven by agreement of the parties in the form of a stipulation.” Brown, 719 So. 2d at 889.
Our views should not be read as limiting the State in presenting a full in-depth story of a prior crime when the prior crime has relevance independent of merely proving prior felony status for K.S.A. 21-4204(a)(4).
We disapprove of the language in Farris, Johnson, and Wilson inconsistent with this opinion.
The rule we are adopting today applies to pending K.S.A. 21-4204(a)(4) criminal possession of a firearm status cases in which the issue was asserted in the trial court and remains an issue on appeal. The rule has no retroactive application to cases final as of the date of this opinion.
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The opinion of the court was delivered by
McFarland, C.J.:
Darrell G. Bateson was convicted of robbery (K.S.A. 21-3426) in Case No. 95-CR-214 and of a traffic offense in Case No. 95-TR-1371. The cases were consolidated on appeal and the convictions were affirmed by the Court of Appeals. State v. Bateson, 25 Kan. App. 2d 90, 958 P.2d 44 (1998). We granted review of a single issue concerning the sufficiency of the evidence supporting the robbery conviction. The specific question is whether there was sufficient evidence of a forceful taking of property as opposed to a theft of property.
FACTS
The precise layout of the area involved in the offense is unclear as, at trial, the parties relied on a diagram not before us and juror viewing of the scene. With these limitations, the facts may be summarized as follows. On October 10, 1995, June Huston, Jefferson County Planning and Zoning Administrator, was alone in her office in the basement of die courthouse. She left briefly to get some information from an adjoining office. On her return she obseived defendant bent over behind her desk. She asked what he was doing and he responded that he was “looking for somebody.” Huston then saw' that the lower desk drawer where she kept her handbag was partially open. She took out her purse, looked inside and saw' that her cash ($95) was gone from her w'allet as well as an address book. She demanded the return of these items. Defendant then turned, left the office, and walked rapidly to the stairs. The victim was not threatened, nor was any force applied to her. Huston followed, some 6 to 8 feet behind. There are two flights of steps with a landing and a turn between the basement and the main floor. When entering the main floor from the basement, one passes through tw'o doors described as being 3 feet apart. The doors have glass in their upper parts. Defendant went through the first door, followed by Huston. Defendant went through the second door. He was not in the victim’s sight at the time. As Huston opened the second door, it came back rapidly and hit her in the face. She concluded this had to have been the result of defendant having intentionally slammed the door in her face. Defendant was not in sight in the courthouse w'hen Huston subsequently came through the second door. She does not know from which entrance he left the building, but she subsequently confronted him again on the courthouse grounds where he offered her $100. He then left in a vehicle driven by a woman. The victim’s money and address book were recovered from a nearby alley Bateson had been seen entering after he had left the grounds prior to his return thereto. Identity is not an issue in this case. The jury was instructed on theft as a lesser included offense of robbery.
STATUTES
“Robbery is the taking of property from the person or presence of another by force or by threat of bodily harm to any person.” K.S.A. 21-3426. Robbery is a severity level 5 person felony. K.S.A. 21-3426.
“Theft is any of the following acts done with intent to deprive the owner permanently of the possession, use or benefit of the owner’s property: (1) Obtaining or exerting unauthorized control over property.” K.S.A. 21-3701(a). Theft of property of the value of less than $500 is a class A nonperson misdemeanor. K.S.A. 21-3701(b)(3).
PRIOR CASE LAW
Defendant contends that the evidence shows he obtained unauthorized control over the victim’s property and left her office without force or threat of bodily harm. Any force was subsequent to taking of the property and would, at most, constitute the separate offense of “battery.” Thus, he argues that we reverse the robbery conviction and remand the case for resentencing him for conviction of theft, a class A nonperson misdemeanor. Defendant likens the facts herein to those in State v. Aldershof, 220 Kan. 798, 556 P.2d 371 (1976).
The State argues that the victim herein immediately resisted the taking of her property and that defendant used force (slamming the door) to effect the removal of the property from her presence and the premises. The State likens the facts herein to State v. Dean, 250 Kan. 257, 824 P.2d 978 (1992); State v. Long, 234 Kan. 580, 675 P.2d 832 (1984); and State v. Miller, 53 Kan. 324, 36 Pac. 751 (1894).
The issue herein involves the difference between robbery and theft. The four cases cited by the parties turn on the difference, and discussion thereof is necessary to the resolution of this appeal.
In Miller, 53 Kan. 324, the court considered whether the force required in a robbery must precede the taking of the property. The facts were that Miller went into a laundry to pick up a shirt. When the proprietor opened the cash drawer, Miller grabbed money therein. The proprietor caught Miller’s hand while it was still in the drawer and released it only when Miller cut the proprietor’s hand with a knife. Miller ran for the door but was caught by the victim who released his hold only after being stabbed in the abdomen.
On appeal, Miller argued that the violence was merely for the purpose of breaking away from the victim and that, if he took the money, he had it in his possession before any violence occurred. This court disagreed and adopted the general rule that the violence to the person and the taking may be contemporaneous. Under the facts, the court concluded Miller had not obtained complete possession of the money before using the violence on the proprietor. The court noted there was evidence Miller cut the victim’s hand in order to remove his own hand containing the money from the cash drawer. The court stated:
“Nice questions may and do arise as to just when the possession of the owner of articles not attached to his person, but under his immediate charge and control, is divested, and it may well be doubted whether a thief can be said to have taken peaceable possession of money or other thing of value in the presence of the owner, when the taking is instantly resisted by the owner, before the thief is able to remove it from his premises or from his immediate presence.” 53 Kan. at 328.
In Aldershof, 220 Kan. 798, two women were sitting in a booth in a tavern. Lighting was poor by virtue of a power outage. One woman left the table. While she was gone, Aldershof went to the booth and grabbed both the absent woman’s purse from the table and the other woman’s purse from her lap. The woman at the booth pursued Aldershof to the parking lot and grabbed his shirt. He turned, hit her in the eye, and fled. He was convicted of robbery.
On appeal, Aldershof argued that the evidence showed no force or threat during the taking of the purses and that the purses were taken by stealth; therefore, the crime was a theft not a robbery. The State argued the crime was robbery as the taking was still in progress when the victim was hit in the parking lot.
Aldershof thoroughly discussed the law of theft and robbery and stated:
“We are inclined to follow the general rule recognized in State v. Miller, supra, that to constitute the crime of robbery by forcibly taking money from the person of its owner, it is necessary that the violence to the owner must either precede or be contemporaneous with the taking of the property and robbery is not committed where the thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape. We believe that the test should be whether or not the taldng of the property has been completed at the time the force or threat is used by the defendant. This must of necessity be determined from the factual circumstances presented in the particular case before the court.” 220 Kan. at 803.
Applying this rule to the facts in Aldershof, we concluded that the taldng of the purses had been completed when the thief snatched the purses and left the premises of the tavern. Any violence occurring after the thief left the tavern with the purses under his control “could not convert the theft into a robbery, although it may well have been the basis for a charge of battery under K.S.A. 21-3412.” 220 Kan. at 804.
In Long, 234 Kan. 580, we again considered the question of the distinction between robbery and theft. Long had entered a sales building where the Wolfs sold milk. The building was open to the public with customers helping themselves to the milk in the display case and dropping payment into a locked, slotted money box mounted on a wall. Ms. Wolf was not in the sales room but saw Long drive up and park. She went into the sales building to tell him more milk would be available soon. When she entered the room, Ms. Wolf observed Long crouched in front of the money box, which had been pried open. Long had his hands in his pockets and a dollar bill was observed on the floor beneath the money box. Ms. Wolf positioned herself in the doorway “ ‘so as to prevent the defendant from leaving the building.’ ” 234 Kan. at 581. She asked Long twice wdiat he was doing, but he made no response. Long walked toward Ms. Wolf, shoved her arm out of the way, forced himself by her, and drove off in his car. Long was convicted of robbery.
On appeal, Long argued that the force used against Ms. Wolf occurred after the taking to effect his escape and therefore was not sufficient to constitute a taking by force as required by the robbery statute. The Court of Appeals agreed (State v. Long, 8 Kan. App. 2d 733, 667 P.2d 890 [1983]). We accepted review of the case and reversed the Court of Appeals. Applying the Miller rule, we held the ultimate question was wdiether the taking of the money from the money box was completed prior to the appellant’s exit from the sale building.
Acknowledging that “[n]o established set of guidelines exists which can be readily applied for a quick and easy answer to this question,” we stated:
“Prior Kansas cases are not in accord with one another and as such do not provide much assistance in determining when a taking is completed. Some of these cases imply a taking is not complete until the property has been removed from the premises of the owner, whereas others indicate the taking is accomplished at the moment the thief, with the intent to steal, removes the property from its customary location.” 234 Kan. at 583.
After reviewing some cases involving issues of whether the appropriate crime was theft or attempted theft, we stated:
“As these cases demonstrate, inherent difficulties exist in determining when possession attaches to constitute a completed taking for a robbery conviction under K.S.A. 21-3426. Commission of the crime of robbery is complete when the robber takes possession of the property, as the element of asportation is no longer required to complete the crimes of theft or robbery. See, e.g., State v. Knowles, 209 Kan. at 678; State v. Aldershof, 220 Kan. at 804. The defendant takes possession of the property of another when he exercises dominion and control over the property. 4 Wharton’s Criminal Law § 472 (14th ed. 1981). Earlier cases have recognized the term ‘possession,’ as it relates to theft or possession of stolen property, imports more than an innocent handling of property; the term denotes control, or the right to exercise control and dominion, over the property. State v. Knowles, 209 Kan. at 678; State v. Brown, 203 Kan. 884, 885-86, 457 P.2d 130 (1969). See also State v. Porter, 201 Kan. 778, 781, 443 P.2d 360 (1968), cert. denied 393 U.S. 1108 (1969); State v. Phinis, 199 Kan. 472, 430 P.2d 251[, overruled on other grounds State v. Milow, 199 Kan. 576, 433 P.2d 538] (1967). 52A C.J.S., Larceny § 6, states:
“ ‘[I]n order to constitute a taking the prospective thief must have obtained at some particular moment the complete, independent, and absolute possession and control of the thing desired adverse to the rights of the owner therein ....
“ ‘If the possession of the would-be taker is imperfect in any degree, or if his control of the thing desired is qualified by any circumstance, however slight, the taking is incomplete and the act is only an attempt.’ ” 234 Kan. at 585.
Upon application of these rules and cases to the facts, we concluded that “a thief does not obtain the complete, independent and absolute possession and control of money or property adverse to the rights of the owner where the taking is immediately resisted by the owner before the thief can remove it from the premises or from the owner s presence.” 234 Kan. at 586. Therefore, using this rule, Long did not obtain actual possession of the money and the taking was not completed until the defendant by force overcame Ms. Wolf’s efforts to stop him from making his exit from the sales room.
In Dean, 250 Kan. 257, the issue was again before us. Dean drove to a full-service service station and asked the attendant to pump gas into his vehicle. When the attendant asked for payment, Dean made a gesture under his coat jacket which made the attendant believe Dean was pointing a gun at him. The attendant jumped back and Dean drove away. The aggravated robbery charge was dismissed before trial. On appeal, we considered whether defendant’s ordering the pumping of gasoline prior to payment and immediately leaving the presence of the owner without payment by the use of threat or force constitutes robbery or merely theft. 250 Kan. at 258.
After reviewing Miller, Aldershof, and Long, we concluded that Dean had not left the premises or even attempted to drive away before he used force. He made his threat to prevent resistance to the taking and not as a means of escape and, therefore, the facts supported the charge of aggravated robbery. The dismissal was reversed, and the case was remanded for further proceedings.
COURT OF APPEALS’ OPINION
In affirming Bateson’s robbery conviction, the Court of Appeals held:
“In this case, Huston found defendant reaching into a drawer in her desk. She immediately resisted any further efforts on his part by telling him to stand away from the desk until she checked to see if any money was missing. As soon as Huston announced money was missing, defendant left the room with Huston in hot pursuit behind him. As we read the record, Huston followed defendant down the hall and down the steps of the courthouse, never being more than 6 to 8 feet behind him. In our judgment, defendant was unable to remove the property from the presence of the pursuing owner until he slammed the door in her face. The slamming of the door in her face was an act of force and results in defendant being guilty of robbery. The theft in this case was not complete, defendant’s possession was imperfect, and his control of the stolen money was qualified by the immediate pursuit of the owner. See State v. Dean, 250 Kan. 257, Syl. ¶ 3. Defendant was required to use force to make the theft complete, and he is guilty of the crime of robbery.
“In reaching this decision, we rely on State v. Long, State v. Dean, and State v. Miller. Those cases all emphasize that a taking in the presence of an owner is not complete if the taking is immediately resisted by the owner before the thief is able to remove it from the premises. In this case, the theft took place in a small office in the courthouse. Defendant was, at all times after he left her office, pursued by the owner, who was seeking to retrieve her property. We have no need to decide whether the money was removed from the premises because defendant did not remove the ill-gotten gains from the presence of the owner until he shut the door in her face and stopped her pursuit. The fact is, the theft was immediately resisted and continued to be resisted until defendant slammed the door in Huston’s face.
“We hold that defendant’s possession and control of Huston’s property was incomplete until he slammed the door in her face, which converted what might have been a common theft into a robbery.” 25 Kan. App. 2d at 94-95.
While Aldershof was cited by the Court of Appeals, it was not discussed nor was there an attempt to distinguish it from the facts in this case.
DISCUSSION
After reviewing all the evidence, viewed in the light most favorable to the State, as we are required to do in sufficiency of the evidence questions (State v. Claiborne, 262 Kan. 416, 425, 940 P.2d 27 [1997]), the following occurred. Bateson took the victim’s property from her handbag while the victim was absent from her office. He was standing near the desk drawer where the handbag was located when she returned. He stepped away from the desk and stood near the door while the victim examined her handbag, noticed the loss, and demanded the return of her property. He made no threats and used no force. There is clearly no robbery at this point. Defendant simply walked rapidly away and went up the stairs. The victim ran after him but apparently could not close the 6 to 8 foot space separating them. She did not see him go through the door at issue at the head of the stairs but was hit by it as she attempted to go through. She believes the defendant slammed the door on her. Assuming defendant did slam the door on the victim to slow or stop her pursuit, did this conduct convert the theft into a robbery? We believe not.
In reaching this conclusion, we compare the facts to those in Miller, Long, Dean, and Aldershof. In Miller, the force came while the defendant’s hand was caught in the till, literally, by the owner. In Long, the owner was physically blocking Long’s exit from the room where the property had been located. He could not leave without removing the owner from the doorway, which he accomplished by force. In Dean, there was no crime until after Dean was asked to pay for the gasoline he had requested to be pumped into his vehicle. He then threatened the service station attendant and left. The threat was contemporaneous with the wrongful taking. Clearly in each of these cases, the violence was contemporaneous with the taking, as the perpetrator did not have complete control and dominion over the property prior to resorting to violence or threat to accomplish such control.
The facts in Aldershof are much more analogous to those before us. Possession of the property was accomplished by stealth. The violence occured when the victim caught up with the perpetrator in the parking lot of the building where the taking occurred and attempted to detain him.
Here, as in Aldershof, the defendant gained peaceable possession of the property in the absence of its owner and used no violence except to aid his escape. As we held in Aldershof:
“To constitute the crime of robbery by forcibly taking money from the person of its owner, it is necessary that the violence to the owner must either precede or be contemporaneous with the taking of the property.”
“The test is whether or not the taking of the property has been completed at the time the force or threat is used by the defendant, which must be determined from the factual circumstances in each case.”
“Robbery is not committed where die thief has gained peaceable possession of the property and uses no violence except to resist arrest or to effect his escape.” 220 Kan. 798, Syl. ¶¶ 1, 2, 3.
In the case before us, defendant’s use of force did not precede nor was it contemporaneous with the taking of the property. Defendant had control of the property when he left Huston’s office. He was out of her sight at the time of the door slamming incident and the taking was complete before the force occurred. The evidence supports a theft conviction but not a robbery conviction. As in Aldershof, the subsequent violence did not convert the theft into a robbery although it could be a basis for a charge of battery under K.S.A. 21-3412.
DISPOSITION
Defendant requests that his robbery conviction be reversed, and that he be resentenced on the lesser included offense of theft under $500, as established by the evidence. This procedure is consistent with State v. Kingsley, 252 Kan. 761, 782, 851 P.2d 370 (1993).
The decision of the Court of Appeals affirming the conviction of robbery is reversed. The defendant’s district court conviction for robbery is reversed, and the case is remanded to the district court to resentence the defendant for conviction of theft of property of a value of less than $500, a class A nonperson misdemeanor. | [
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The opinion of the court was delivered by
Abbott, J.:
This is an appeal by the State from the trial court’s dismissal of criminal charges for possession of drug paraphernalia, a firearm, and methamphetamine which arose in August 1996. The trial court dismissed the charges on the ground of double jeopardy as provided in K.S.A. 21-3108(2)(a).
Defendant Anthony C. Barnhart was charged with possession of cocaine, methamphetamine, and drug paraphernalia arising out of defendant’s conduct on October 6, 1995. Defendant was tried for the October 1995 crimes and convicted of possession of cocaine and possession of methamphetamine. During that trial, evidence concerning the August 1996 charges that are the subject of this appeal was introduced pursuant to K.S.A. 60-455 to show intent, knowledge, or absence of mistake or accident. Although of no importance to this appeal, the two convictions for the October 1995 offenses are on appeal and pending before the Court of Appeals.
Defendant moved to dismiss the charges that are the subject of this appeal because there had been a violation of his “right to be free from double jeopardy pursuant to the Fifth and Fourteenth Amendments of the U.S. Constitution, Section Ten of the Kansas Bill of Rights, and K.S.A. 21-3108(2)(a).” The motion was based on the fact that during the jury trial of the October 1995 charges, the State introduced substantial evidence of the present case pursuant to K.S.A. 60-455. Specifically, the evidence introduced included: (1) the testimony of Officer Cross regarding his arrest of defendant and the recovery of evidence including drug paraphernalia, a firearm, and methamphetamine; (2) the testimony of Deputy Guzman regarding the chain of custody of the evidence that Officer Cross recovered; and (3) the results of laboratory reports.
In order for K.S.A. 21-3108(2)(a) to bar a prosecution, the following three elements must coalesce: “(1) The prior prosecution must have resulted in either a conviction or an acquittal; (2) evidence of the present crime must have been introduced in the prior prosecution; and (3) the present crime must be one which could have been charged as an additional count in the prior case.” In re Berkowitz, 3 Kan. App. 2d 726, 743, 602 P.2d 99 (1979). See State v. Fisher, 233 Kan. 29, 32, 661 P.2d 791 (1983).
The State argued that the 7-month time lapse between the two offenses defeated the third prong. The 1995 case (No. 95 CR 3522) was charged, a preliminary hearing was held, and defendant was bound over for trial before the defendant was ever charged in the case before us. The trial judge took the matter under advisement and told the parties that they could decide what evidence he would need to hear at the next hearing.
At the ruling on the motion to dismiss, the trial judge stated that he had examined a partial transcript of the jury trial and had reviewed
“the Berkowitz case cited by both parties, and the Mahlandt case, also the Brueninger case, and the case of State v. Fisher, and the case of State v. Baker. All of these cases stand for the following general proposition: That under the Kansas compulsory joinder statute if evidence is admitted of an offense not contained in the charge, the later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution.”
The trial judge sustained defendant’s motion to dismiss because the two cases could have been consolidated. The trial judge stated:
“The State argues that basically these cases were unlikely to have been consolidated because of the interest of judicial economy and so forth. I don’t think that’s the test. I think the test is whether they could have been. I think they clearly could have been.
“I think the Defendant’s motion is a good one. The motion to dismiss this case is sustained. This case is dismissed.”
The State timely appealed from the trial judge’s Order dismissing the complaint.
The States’s appeal of the district court’s dismissal involves a question of law. This court’s review of questions of law is de novo. State v. Todd, 262 Kan. 916, 919, 941 P.2d 1374 (1997). K.S.A. 21-3108 provides in pertinent part:
“(2) A prosecution is barred if the defendant was formerly prosecuted for a different crime, or for the same crime based upon different facts, if such former prosecution:
(a) Resulted in either a conviction or an acquittal and the subsequent prosecution is for a crime or crimes of which evidence has been admitted in the former prosecution and which might have been included as other counts in the complaint, indictment or information filed in such former prósecution or upon which the state then might have elected to rely; or was for a crime which involves the same conduct, unless each prosecution requires proof of a fact not required in the other prosecution, or the crime was not consummated when the former trial began.”
In State v. Freeman, 236 Kan. 274, 280-81, 689 P.2d 885 (1984), this court explained:
“The double jeopardy clause of the Constitution of the United States protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. Brown c. Ohio, 432 U.S. 161, 165, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977). The language of section 10 of the Bill of Rights of the Constitution of Kansas is very similar to the language contained in the Fifth Amendment of the Constitution of the United States, Both provide in effect that no person shall be twice placed in jeopardy for the same offense. The language of the Fifth Amendment guarantees no greater protection to an accused than does section 10 of the Bill of Rights of the Constitution of Kansas. Therefore, the three underlying protections contained in the double jeopardy clause of the Constitution of the United States are contained in section 10 of the Bill of Rights of the Kansas Constitution.”
The Freeman court also explained that “[i]n order to implement and define the constitutional guarantees of the double jeopardy clause, the Kansas legislature enacted two statutes: (1) K.S.A. 1983 Supp. 21-3107, multiple prosecutions for the same act, and (2) K.S.A. 21-3108, effect of former prosecution.” 236 Kan. at 281.
Defendant cites In re Berkowitz, 3 Kan. App. 2d at 742, wherein the court stated that under the Kansas compulsory joinder statute, “if evidence is admitted of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the first prosecution.”
Here, the first prong of the compulsory joinder test is met because the first prosecution ended in a conviction. The second prong is arguably met because pursuant to a successful K.S.A. 60-455 motion, the State introduced evidence of the 1996 crimes in the 1995 case. However, in State v. Edgington, 223 Kan. 413, 417, 573 P.2d 1059 (1978), the court held that the fact that some evidence used in the first trial is also used in the second trial does not necessarily bar prosecution. Rather, the question is whether the second crime was proved by the admission of evidence of the second crime in the first trial.
The record before us is such that we are satisfied that the three 1996 crimes were proven in the 1995 case. K.S.A. 22-3202 provides:
“(1) Two or more crimes may be charged against a defendant in the same complaint, information or indictment in a separate count for each crime if the crimes charged, whether felonies or misdemeanors or both, are of the same or similar character or are based on the same act or transaction or on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
Both cases are Johnson County cases and both cases contain charges of possession of methamphetamine and drug paraphernalia. Defendant notes that even die State’s brief asserts that the evidence of the 1996 offense was relevant to prove the 1995 offense because of the striking similarities between the two. In State v. Howell, 223 Kan. 282, 285, 573 P.2d 1003 (1977), the court noted that “ ‘[w]hen all of the offenses are of the same general character, require the same mode of trial, the same kind of evidence and occur in the same jurisdiction the defendant may be tried upon several counts of one information ....’” (quoting State v. Adams, 218 Kan. 495, 506, 545 P.2d 1134 [1976]).
Defendant cites State v. Cromwell, 253 Kan. 495, 510-512, 856 P.2d 1299 (1993), wherein this court found that the trial court had not erred in trying charges arising from an incident in January 1987, along with charges arising from an incident in February 1991, because the crimes were similar, despite the 4-year lapse. Thus, defendant correctly maintains that the Cromwell case defeats the State’s argument that a time differential of 7 months between defendant’s two crimes is too long to expect the State to consolidate the charges.
In State v. Mahlandt, 231 Kan. 665, 647 P.2d 1307 (1982), defendant was convicted in Sedgwick County of robbery and aggravated kidnapping, based upon his actions of robbing a convenience store located in Mulvane, Sedgwick County. Defendant had entered the store and asked for a package of Kool cigarettes. After the clerk, Ms. S., handed him the cigarettes, he demanded that she open up the cash register; when she complied he removed the money and forced her to go with him to his car, hitting her in the face and head several times when she resisted. She managed to escape from defendant’s car as he began backing up to drive away.
Approximately ½ hour after the Sedgwick County robbery, defendant entered a convenience store in Rose Hill, Butler County, where Ms. W. was employed as the night clerk. Defendant stole the money from store’s cash register and forced Ms. W. into his car. Defendant then drove her to a dirt road in Sedgwick County where he raped and sodomized her. After the rape, Ms. W. saw a large amount of money under the front seat of defendant’s car, which was later identified as the money stolen from the convenience store in Mulvane. She also saw the defendant smoking a Kool cigarette while they were in his car. Defendant was charged with
“robbery, aggravated kidnapping, rape and aggravated sodomy in Butler County in two separate criminal actions in connection with the Rose Hill incident. These cases were consolidated for trial. Prior to trial the State moved for permission to introduce evidence of the Mulvane incident under K.S.A. 60-455 to prove motive, opportunity, intent, preparation, plan and identity. Finding that identification of the defendant was in controversy, the trial court granted the motion over the defendant’s protests that doing so could possibly result in double jeopardy.” 231 Kan. at 666.
Defendant was found guilty of robbery of the Rose Hill store and guilty of aggravated kidnapping, rape, and attempted aggravated sodomy of Ms. W. in the Butler County trial. Defendant was charged in Sedgwick County with robbeiy and aggravated kidnapping in connection with the Mulvane store incident concurrent with the Butler County action. Upon conclusion of the Butler County trial, defendant moved to have the Sedgwick County action dismissed, asserting that the Sedgwick County action “amounted to double jeopardy under K.S.A. 21-3108(2)(a), because facts concerning the Mulvane matter testified to in the Butler County prosecution could have been, but were not, charged in that action as required by the statute. The trial court denied the motion.” 231 Kan. at 667.
During the Sedgwick County trial, Ms. S. and Officer Dailey testified to essentially the same evidence as they presented in the Butler County case. Defendant raised his double jeopardy objection prior to the close of the trial and it was overruled. He was convicted in Sedgwick County of robbeiy and aggravated kidnapping. On appeal, defendant contended that the Sedgwick County prosecution was barred as a violation of double jeopardy, given the evidence that was admitted in the prior Butler County prosecution. This claim was based on K.S.A. 21-3108(2)(a).
The issue in Mahlandt was whether the crimes of robbery and kidnapping appealed from Sedgwick County could have been included as additional counts in the Butler County prosecution such that the third element of the Berkowitz test was met. The Mahlandt court held:
“[T]he money stolen from the Mulvane store in Sedgwick County was brought into Butler County when the defendant robbed the Rose Hill store and abducted Ms. W. Thus, under [K.S.A.] 22-2609 [“When property taken in one county by theft or robbery has been brought into another county, the venue is in either county.’], it seems clear the robbery charge could have been prosecuted in Butler County and the double jeopardy provisions of 21-3108 apply.
“However, the kidnapping charge presents a greater problem. The kidnapping occurred in Sedgwick County and was completed in Sedgwick County when the victim jumped out of the defendant’s car while still in the Mulvane parking lot. Thus, the kidnapping venue statute, K.S.A. 22-2614, does not apply in Butler County. It states:
‘A person charged with the crime of kidnapping may be prosecuted in any county in which the victim has been transported or confined during the course of the crime.’
“The kidnapping charge could not have been brought along with the robbery charge under 22-2603. The kidnapping clearly was not an act necessary to the accomplishment of the robbery, as 22-2603 requires. Instead, the facts show that the robbery was completed prior to the time when the victim was forced out of the store and into the defendant’s car. The commission of the robbery would not have been altered had die kidnapping not occurred. We find no basis upon which to found venue in Butier County for the kidnapping of Ms. S. Jurisdiction is essential before jeopardy attaches. State v. Hendren, 127 Kan. 497, 500, 274 Pac. 274 (1929). Witiiout a basis for venue, Butler County lacked jurisdiction over the kidnapping charge. State v. Moore, 226 Kan. 747, 602 P.2d 1359 (1979).” 231 Kan. at 669.
The Mahlandt court also held:
“All the charges arising out of the two incidents could have been charged in Sedgwick County, because the fruits of the Rose Hill robbery and Ms. W. were brought into Sedgwick County. The fact that the two counties chose to prosecute the actions separately did not prejudice the defendant or place him in jeopardy. It should be noted that the defendant did not move the trial court to consolidate the Butler and Sedgwick County actions. On the facts in this case, when evidence of the Mulvane robbery was admitted in the Butier County prosecution the double jeopardy prohibition of 21-3108(2)(a) was violated. The appellant’s conviction of robbery in the Sedgwick County trial court was erroneous and his conviction on this count is reversed.” 231 Kan. at 670.
K.S.A. 21-3108(2)(a) incorporates two key concepts: (1) the compulsory joinder rule under the first clause, and (2) the identity of elements rule under the second clause. In State v. Brueninger, 238 Kan. 429, 432, 710 P.2d 1325 (1985), the court referred to In re Berkowitz, 3 Kan. App. 2d 726, and stated that the Berkowitz court had
“extensively reviewed the law of double jeopardy under the Fifth and Fourteenth Amendments and its historical background. The court then related this background to the law of double jeopardy as it currently exists in Kansas. Critical to this analysis was the court’s determination that K.S.A. 21-3108(2)(a) incorporates two key concepts — the compulsory joinder rule and the identity of elements rule. The Court of Appeals noted that these rules are both embodied in one subsection with two clauses separated by a semicolon. 3 Kan. App. 2d at 741.” 238 Kan. at 432.
With regards to the first clause of K.S.A. 21-3108(2)(a), the Brueninger court then noted that it “concerns compulsory joinder and provides that if evidence is admitted at the prior prosecution of an offense not contained in the charge, later prosecution of that offense is barred if it could have been included as an additional count in the prior prosecution.” 238 Kan. at 432-33 (citing Berkowitz, 3 Kan. App. 2d at 742).
The Brueninger court also stated that the “object of the compulsory joinder statute is to prevent the prosecution from substantially proving a crime in a trial in which that crime is not charged and then retrying the defendant for the same offense in a trial where it is charged. [Citations omitted.]” 238 Kan. at 433.
The State’s memorandum in support of its motion to admit K.S.A. 60-455 evidence in the 1995 case alleged that defendant was seen at a Lenexa motel with another man standing near the rear of a car. The engine of the car was running and the doors were open. Officer Cross confronted the individuals and had them stand against a wall. While standing against the wall, defendant continually reached for his waistband area. When backup units arrived, defendant was patted down and Cross found a .22 caliber pistol in defendant’s waistband. Defendant was then arrested.
A search incident to defendant’s arrest revealed a black film canister in the front pocket of defendant’s jeans. The canister con- tamed a rock-like substance that appeared to be methamphetamine. Police searched the vehicle because defendant refused to provide identification. Cross located a “fanny pack” inside the car which contained three Ziplock bags containing white powdery residue, a gray pouch of needles, alcohol swabs, a large silver spoon, a glass vial containing a clear liquid, a scale, and unused Ziplock bags and glass vials. Expert testimony identified the seized materials as methamphetamine and cocaine.
We have examined all the cases cited by both parties and have no quarrel with them. As we view K.S.A. 21-3108(2)(a), the legislature intended that in cases such as the one before us the State has two choices. It can: (1) either consolidate the two cases or charge all the crimes in one charging instrument whereby evidence of all the crimes charged would be admissible; or (2) the State can elect to have separate trials and not use evidence of the second offense in the first trial. This statutory construction does not disadvantage either the State or the accused and conserves time and the expense required to present the same evidence in two trials.
The State did not comply with K.S.A. 21-3108(2)(a). Therefore, we find no error in the trial court’s dismissal of charges for possession of drug paraphernalia, a firearm, and methamphetamine on the ground of double jeopardy.
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The opinion of the court was delivered by
Six, J.:
These two consolidated cases require interpretation of the Kansas Sentencing Guidelines Act (KSGA), K.S.A. 21-4701 et seq.
Michael Bolin and Michael Woodward seek review of the Court of Appeals decisions affirming their sentences. Both cases concern the definition of a “multiple conviction case” under K.S.A. 21-4720(b). We granted both defendants’ petitions for review to reconcile conflicting definitions of the term “multiple conviction case” under K.S.A. 21-4720(b). The conflict arises from two Court of Appeals decisions: State v. Bolin, 24 Kan. App. 2d 882, 955 P.2d 130 (1998), and State v. Christensen, 23 Kan. App. 2d 910, 937 P.2d 1239 (1997). Our jurisdiction is under K.S.A. 20-3018(b); Rule 8.03 (1997 Kan. Ct. R. Annot. 52).
We resolve the conflict by extending the holding of State v. Roderick, 259 Kan. 107, 911 P.2d 159 (1996), which addressed, in part, the questions raised by Bolin and Woodward. A multiple conviction case is a case involving multiple crimes arising under a single charging document. The definition applies for all provisions of K.S.A. 21-4720(b). Bolin is affirmed. We disapprove of the conflicting language in Christensen. Woodward is affirmed in part, reversed in part, and remanded.
FACTS
State v. Bolin
Bolin pled guilty to two counts of forgery (94 CRM 622). On the same date, and in the same court, he also pled guilty to three counts of vehicular burglary and one count of felony obstruction (94 CRM 938). Bolin committed the burglary and felony obstruction while he was on bond from his forgery charges. On October 24, 1994, he was sentenced in both cases. On the forgery counts, the district court found a crime severity level 8 offense and a category E criminal history. (References to “crime severity level” and to "criminal history” are from the KSGA, K.S.A. 21-4701 et seq.) The court imposed a presumptive 14-month concurrent sentence on each count. The court found that the offenses on the burglary and felony obstruction convictions were crime severity level 9 offenses and Bolin’s criminal history score was E. The court believed that the sentence imposed in the burglary/obstruction case was a presumptive sentence under the KSGA. The forgery sentences were consecutive to the burglary/obstruction sentences.
Bolin filed a motion to correct an illegal sentence. He claimed that the district court had applied an incorrect sentencing range and had erroneously applied his full criminal history to his burglary/ obstruction sentence. The district court agreed in part and reduced the controlling sentence to 10 months. However, the court reasoned that Bolin’s full criminal history score of E was correctly applied to his sentence on all counts. Bolin appealed, arguing that his criminal history score for his nonbase crimes should have been calculated as I. He contends that his sentencing in two separate cases, on the same date, and in the same court, constituted a “multiple conviction case” under K.S.A. 21-4720(b)(5).
Bohn’s arguments were rejected by the Court of Appeals. The Bolin panel reasoned that, under the rationale of Roderick, K.S.A. 21-4720(b)(5) applies only to “multiple counts within an (the same) information, complaint, or indictment.” 24 Kan. App. 2d at 885. The Court of Appeals noted it was mindful of a contrary decision in Christensen but stated: “[W]e do not agree with that decision as it pertains to the issue of whether and how K.S.A. 21-4720(b)(5) should be applied . . . .” 24 Kan. App. 2d at 886.
State v. Woodward
We turn now to Woodward, an unpublished Court of Appeals decision. Woodward pled guilty to one count of possession of ma rijuana, a crime severity level 4 drug felony (95 CR 262). The same date, he pled guilty to one count of driving while suspended, a crime severity level 9 nonperson felony (95 CR 282). August 25, 1995, the district court sentenced Woodward in both cases. In the marijuana case the district court found Woodward fell into drug grid box 4-E, a presumptive prison box, and imposed 20 months’ imprisonment. In the driving while suspended case, the district court found Woodward fell into a presumptive nonprison box 9-E; however, it imposed a prison sentence (10 months, to run consecutive to the 20-month term imposed on the marijuana charge) because Woodward committed the offense while he was out on bond in the marijuana case. The district court imposed the prison term despite the fact the offense carried a presumptive nonimprisonment sentence.
Woodward appeals on two grounds. First, he argues that the district court erred by ordering prison time in a presumptive non-imprisonment case because of his “on bond” status. Second, relying on Christensen, he contends his was a “multiple conviction case” under K.S.A. 21-4720(b)(5) (he was sentenced in two different cases on the same date in the same court). According to Woodward, his correct criminal history score for his nonbase crime, driving while suspended, should have been I, not E.
Addressing Woodward’s first contention, the Court of Appeals held that the district court erred in sentencing Woodward to prison based solely on his being on bond. However, the Court of Appeals, relying on Christensen, 23 Kan. App. 2d at 918, reasoned that the district court was required to impose imprisonment on the second sentence under K.S.A. 21-4720(b)(6). The Woodward panel also held the district court had discretion to order the prison terms to run consecutively or concurrently, presumably under K.S.A. 21-4608(a). Because the record was unclear as to whether the district court exercised its discretion, the Court of Appeals remanded for that consideration only.
As to Woodward’s second contention, the panel held that his was not a “multiple conviction case” under 21-4720(b), applying Roderick, 259 Kan. 107, Syl. ¶ 3.
DISCUSSION
Statutory and Case History
While K.S.A. 21-4720(b) sets the procedure for determining sentences to be imposed in “multiple conviction cases,” the term “multiple conviction case” is not statutorily defined.
K.S.A. 21-4720(b) reads in part:
“(b) The sentencing judge shall otherwise have discretion to impose concurrent or consecutive sentences in multiple conviction cases. ... In cases where consecutive sentences may be imposed by the sentencing judge, the following shall apply.-
(2) The sentencing judge must establish a base sentence for the primary crime. The primary crime is the crime with the highest crime severity ranking. . . .
(3) The base sentence is .set using the total criminal history score assigned.
(4) The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint or indictment cannot exceed twice the base sentence. . . .
(5) Nonbase sentences will not have criminal history scores applied, as calculated in the criminal history I column of the grid, but base sentences will have the full criminal history score assigned.
(6) If the sentence for the primary crime is a prison term, the entire imprisonment term of the consecutive sentences will be served in prison.” (Emphasis added.)
We first examined the question of what constitutes a “multiple conviction case” in Roderick, 259 Kan. 107. The Court of Appeals panels in Christensen and Bolin interpreted portions of Roderick differently. In Roderick, we were asked to decide whether the K.S.A. 21-4720(b)(4) “double rule” applied to sentencing cases involving multiple crimes arising in different charging documents (“The total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information . . . cannot exceed twice the base sentence.”). Answering “no,” we reasoned that before July 1, 1994, K.S.A. 21-4703(c) defined the term “ ‘conviction event’ ” as “ ‘one or more felony convictions occurring on the same day and within a single court. These convictions may result from multiple counts within an information or from more than one information.’ ” 259 Kan. at 114. However, effective July 1, 1994, the legislature eliminated all references to “conviction events” to limit application of the “double rule” contained in K.S.A. 21-4720(b)(4) only to multiple convictions arising from multiple counts in the same charging document. Thus, the rule announced in Roderick is:
“The double rale limit [in K.S.A. 21-4720(b)(4)] applies only to cases involving multiple convictions arising from multiple counts within an information, complaint, or indictment, not multiple convictions arising from separate cases pled to on the same date.” 259 Kan. at 114.
The Christensen court was asked whether K.S.A. 21-4720(b)(6) applies only to cases where the crimes are charged in a single document with multiple counts or to multiple crimes in multiple charging documents. Stated differently, the issue was whether a “multiple conviction case” means multiple cases (charging documents) or multiple counts in only one charging document. Christensen was charged with various drug crimes in different charging documents. She pled guilty to two different crimes, each charged in a different information. She was sentenced for both crimes on the same date and in the same court. Christensen concluded that all of the provisions of K.S.A. 21-4720(b), except subsection (b)(4), apply when sentencing a defendant for multiple crimes arising from different charging documents. 23 Kan. App. 2d at 918.
Bolin's Case
Bolin argued that the district court erred in finding that his sentencing in two separate cases on the same day did not constitute a single “multiple conviction case” under K.S.A. 21-4720(b). The Bolin panel reasoned that the legislature changed the statute to limit the application of the “double rule” to multiple counts “within an (the same) information, complaint, or indictment.” 24 Kan. App. 2d at 885. The Court of Appeals in Bolin held that all subsections of K.S.A. 21-4720(b) must be construed together. Under the rationale of Roderick, the Bolin panel concluded: “K.S.A. 21-4720(b)(5) is held to apply to nonbase sentences included in the same charging document as the base sentence.” 24 Kan App. 2d 882, Syl. ¶3. We agree.
The panel in Bolin then noted:
“We are not unmindful of the decision of a panel of this court in State v. Christensen, 23 Kan. App. 2d 910, 937 P.2d 1239 (1997). Suffice it to say, we do not agree with that decision as it pertains to the issue of whether and how K.S.A. 21-4720(b)(5) should be applied when sentencing a defendant for multiple crimes arising from several charging documents all on the same day.” 24 Kan. App. 2d at 886.
The interpretation of the KSGA is a question of law, and thus, our review is unlimited. State v. Donlay, 253 Kan. 132, 133-34, 853 P.2d 680 (1993). Under the fundamental rule of statutory construction, the intent of the legislature governs when that intent can be ascertained from the statute. The general rule is that a criminal statute must be strictly construed in favor of the accused. Any reasonable doubt about the meaning is decided in favor of anyone subjected to the criminal statute. The strict construction rule, however, is subordinate to the rule that judicial interpretation must be reasonable and sensible to effect legislative design and intent. State v. Cox, 258 Kan. 557, Syl. ¶ 7, 908 P.2d 603 (1995).
Although the Bolin-Christensen conflict is not easily resolved, the rationale of the Bolin panel in extending Roderick is persuasive. The legislature changed K.S.A. 21-4720(b) (effective July 1, 1994) to limit the application of the “double rule” to cases involving multiple convictions arising from the same charging document. As the panel in Bolin pointed out, “[a]ll sections of a statute must be construed together.” 24 Kan. App. 2d at 885. The legislature eliminated all references to “conviction events” and used the language “an information” in subsection (b)(4) to implement the limitation of the reach of K.S.A. 21-4720(b). (Emphasis added.) “In construing statutes and determining legislative intent, several provisions of an act, in pari materia, must be construed together with a view of reconciling and bringing them into workable harmony if possible. [Citation omitted.]” State v. Vega-Fuentes, 264 Kan. 10, 14, 955 P.2d 1235 (1998). The provisions of K.S.A. 21-4720(b) should be construed consistently.
The district court properly sentenced Bolin. Bolin argues that even if Roderick is extended, he must be given the benefit of K.S.A. 21-4720 under State v. Riley, 259 Kan. 774, 778, 915 P.2d 774 (1996), because his forgery crimes were committed before July 1, 1994. We disagree. Riley’s multiple crimes arising from multiple charging documents were committed before the legislative changes relied upon in Roderick. We held Riley should have been sentenced under K.S.A. 21-4720(b). As a result, Riley’s criminal history was improperly computed, and his nonbase crimes should have had a criminal history of I under K.S.A. 21-4720(b)(5). 259 Kan. at 778.
Riley does not affect Bolin’s sentence. The Riley rule is applicable only to: (1) crimes committed before July 1, 1994, the date K.S.A. 21-4720(b) was amended; and (2) sentencing on convictions for pre-July 1, 1994 crimes, whether they arise from a single or multiple charging documents. Only Bolin’s forgery counts occurred before July 1, 1994 (94 CRM 622). The crimes in Bolin’s second case (94 CRM 938) were committed after July 1, 1994, and therefore do not come under the Riley rule.
Bolin’s sentences on the forgery counts and on the burglary/ obstruction counts would each be multiple conviction cases and subject to the limitation in K.S.A. 21-4720(b)(5). Subsection (b)(5) would shorten Bolin’s nonbase sentences. However, Bolin’s two 14-month sentences in the forgery cases were ordered served concurrently. The same is true with the burglary/obstruction sentences. Bolin’s base sentence was 10 months on the burglary charge. He received 10 months on the felony obstruction charge, the nonbase sentence. The sentences Bolin serves will not change even if K.S.A. 21-4720(b)(5) is applied to his nonbase sentences because he is serving the nonbase sentences concurrent with his base sentences. The base sentences are not affected by the application of K.S.A. 21-4720(b)(5).
Woodward’s Case
Woodward’s case is remanded for resentencing consistent with State v. Arculeo, 261 Kan. 286, 933 P.2d 122 (1997) (holding that a defendant committing crimes while released on bond is not on conditional release under K.S.A. 21-4603d). A district judge is not allowed to impose a prison term where presumptive nonimprisonment is provided for in the KSGA absent a departure.
The district court sentenced Woodward to a prison term because Woodward committed a presumptive nonimprisonment crime while on bond. The Court of Appeals in Woodward held Arculeo controlled, and the district court erred in sentencing Woodward to prison based solely on his being on bond. However, the Court of Appeals upheld the resulting sentence, applying Christensen to K.S.A. 21-4720(b)(6) (“[i]f the sentence for the primary crime is a prison term, the entire imprisonment term of the consecutive sentences will be served in prison”). K.S.A. 21-4720(b)(6) does not apply to Woodward as a result of our extension of Roderick. Thus, the district court had no statutory basis for imposing a prison term in a presumptive nonimprisonment case absent a departure.
We affirm the Court of Appeals decision in Bolin, disapprove the conflicting language in Christensen, and reverse and remand Woodward for resentencing consistent with Arculeo. | [
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The opinion of the court was delivered by
Davis, J.:
The State of Kansas appeals from the dismissal with prejudice of all charges against the defendant, Bryce Leon Davis, as a sanction imposed by the district court, which held the prosecutor in contempt of court for failure to comply with its discovery order. We affirm in part, reverse in part, and remand for further proceedings.
On February 22, 1997, the defendant was arrested and charged with driving under the influence of alcohol and driving left of center. Prior to trial, defense counsel filed a motion for production with the district court asking that the State be ordered to produce the following documents: (1) the certification from the Kansas Department of Health and Environment on the solution used to test the defendant’s breath, and (2) weekly test results of the Intoxilyzer 5000 for December, January, February, and March used to test the defendant’s breath.
There is no dispute that the documents requested were relevant and subject to discovery. At the hearing, defense counsel asked that the county attorney supply the requested documents. The county attorney, however, replied that while defense counsel was more than welcome to go to the sheriff’s office and inspect the logs and the certification, the county attorney would not photocopy the information and send it to defense counsel.
The following exchange then occurred:
“[Court]: Let me go ahead and rule on this. This comes up in other instances, also, and so I’m going to just request, [Mr. Shepack], that you provide this to [defense counsel] for the time frame that we have. I mean, this is no big deal that they can go ahead and copy those — the log that they have at the sheriff’s office and the certification and the affidavit.
“[Prosecutor]: Judge, I’m going to respectfully decline.
“[Court]: Well, I’m going to order you to do that.
“[Prosecutor]: And I will respectfully decline.
“[Court]: Mr. Shepack, I don’t think that we would want me to have to hold you in contempt. This is not—
“[Prosecutor]: Your Honor, if you held me in contempt, I would—
“[Court]: —the reason why I am doing this.
“[Prosecutor]: “I’m not Tinkel’s Copy Service.”
The court then indicated that while it did not believe that the county attorney was a copy service, the request was not a burden on the State and the information was easily obtained by making a telephone call to the sheriff’s office. The court then ordered that the requested information be sent within 5 days. Once again, however, the county attorney objected:
“Well, Your Honor, again, I’ll respectfully decline. I’ll relate the matter to the sheriff’s office. If they want to copy it, fine. I believe our obligation is to only make items available, which we will do. Other attorneys go over there to look at the logbook, you know. That’s life.”
The court then reiterated its order.
The requested information was not provided by the county attorney. Instead the county attorney filed a response with the court indicating that it would not comply with the order. In his response, the county attorney argued that K.S.A. 22-3212 required only that it permit the defendant to inspect, copy, or photograph the documents, and the State was not required to make copies and send them to the defendant. The county attorney noted that he had earlier provided copies of the police report and supporting documents to the defendant as a courtesy but would not be providing the information ordered by the court. In closing, the county attor ney stated that he would “endure the contempt citation and/or dismissal and take the appropriate appeal.”
A contempt hearing was held November 20, 1997. At the hearing, the county attorney reiterated his position. The district court then entered the following order:
“Now, on this 20th day of November, 1997, comes on for hearing the defendant’s motion to find the State of Kansas/foe Shepack in contempt of court. The defendant appears by his counsel, Michael S. Holland, Russell, Kansas. The State of Kansas appears by Joe Shepack, Ellsworth County Attorney, Ellsworth, Kansas.
“Thereupon, the Court inquires of the State of Kansas/foe Shepack the reason or reasons that the State has failed to comply with the Court’s discovery order and produce the items ordered to be produced on or before November 18,1997. “The State’s counsel replies that he has filed a written response to the Court’s discovery order.
“The Court requests the State explain its actions verbally to the Court.
“Thereupon, after the State makes its argument to the Court and defendant responds thereto, the Court finds that the State of Kansas and/or Joe Shepack, County Attorney, Ellsworth County, Kansas, are in contempt of the Court’s order and violated the Court’s order by failing to submit the items identified in the Court’s order of November 13,1997, to defendant’s counsel on or before November 18,1997.
“It Is Therefore Considered, Ordered, Adjudged and Decreed By The Court that the State of Kansas and/or Joe Shepack are in contempt of this Court’s order of November 13, 1997, that the appropriate sanction for said contempt is dismissal with prejudice of the above-entitled matter.
“It Is Therefore Considered, Ordered, Adjudged and Decreed By The Court that based upon the willful and contemptuous refusal of the State and/or Joe Shepack, Ellsworth County Attorney, to comply with the Court’s November 13, 1997, discovery order, the above-entitled matter is dismissed with prejudice.”
The State appeals. Our jurisdiction is based on K.S.A. 22-3602(b)(1), which allows the State to appeal directly to the Supreme Court from an order dismissing a complaint, information, or indictment.
Analysis and Discussion
Discovery Order
K.S.A. 22-3212 provides, in pertinent part:
“(a) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph the following, if relevant: ... (2) results or reports of physical or mental examinations, and of scientific tests or experiments made in connection with the particular case, or copies thereof, the existence of which is known, or by the exercise of due diligence may become known, to the prosecuting attorney.. . .
“(b) Upon request, the prosecuting attorney shall permit the defendant to inspect and copy or photograph books, papers, documents, tangible objects, buildings or places, or copies, or portions thereof, which are or have been within the possession, custody or control of the prosecution, and which are material to the case and will not place an unreasonable burden upon the prosecution.”
There is no dispute that the items ordered produced in this case were subject to discovery and in possession of the State. The State’s sole argument is that the trial court lacked the authority under K.S.A. 22-3212 to order the documents mailed to defense counsel. The interpretation of a statute is a question of law, over which this court has unlimited review. State v. Lewis, 263 Kan. 843, 847, 953 P.2d 1016 (1998).
While the provisions of K.S.A. 22-3212 require the State to permit defense counsel to inspect, copy, or photograph such documents, we have long held that K.S.A. 22-3212 places in the trial court a broad discretion to require disclosure of documents and other tangible objects which may be in the possession or under the control of the prosecution. State v. Brinkley, 256 Kan. 808, 819, 888 P.2d 819 (1995); State v. McQueen & Hardyway, 224 Kan. 420, 430, 582 P.2d 251 (1978); State v. Rogers, 217 Kan. 462, 466, 537 P.2d 222 (1975); State v. Hill, 211 Kan. 287, 294, 507 P.2d 342 (1973). In Hill, we noted:
“K.S.A. 1972 Supp. 22-3212, places broader discovery within the discretion of the trial court and we urge the trial courts to use these discretionary provisions to effect economies in time, money, and judicial and professional talents, and to permit thorough preparation for trial on both sides. The intent of the code of criminal procedure is to be effected by prosecutors, trial courts, and defense attorneys construing its provisions to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay. (K.S.A. 1972 Supp. 22-2103.)” 211 Kan. at 293-94.
K.S.A. 22-3212 is based on Fed. R. Crim. Proc. 16. See State v. Jones, 209 Kan. 526, 528, 498 P.2d 65 (1972). The Federal Advisory Committee, in its notes on Rule 16, states:
“[Rule 16] is intended to prescribe the minimum amount of discovery to which the parties are entitled. It is not intended to limit the judge’s discretion to order broader discovery in appropriate cases. For example, subdivision (a)(3) is not intended to deny a judge’s discretion to order disclosure of grand jury minutes where circumstances make it appropriate to do so.” Federal Advisory Committee’s Notes on 1974 Amendment on Rule 16.
Federal courts interpreting Rule 16 have held that it is within the sound discretion of the district judge to make any discovery order that is not barred by higher authority. See United States v. Campagnuolo, 592 F.2d 852, 857 n.2 (5th Cir. 1979); United States v. Sawyer, 831 F. Supp. 755, 757 (D. Neb. 1993).
The State argues that recent opinions by the Court of Appeals have limited the district court’s discretion in this area, citing In re J.T.M., 22 Kan. App. 2d 673, 922 P.2d 1103 (1996), and State v. Nuessen, 23 Kan. App. 2d 456, 933 P.2d 155 (1997). Neither of these cases support the State’s argument. J.T.M. concerned the question of whether the trial court erred in refusing to require the State to produce the past medical records of the crime victim. The Court of Appeals noted that the crime victim was not a party to the action and there was no showing that fhe State had access to fhe records or that fhe records were under control of fhe State. Therefore, according to the Court of Appeals, the court was correct in finding that it had no jurisdiction to order the records to be produced, although they could be subpoenaed by the defense counsel. 22 Kan. App. 2d at 679. In this case, there is no question that the requested documents were in the possession of the State.
The question in Nuessen was whether the district court could order production of a police report before trial even though K.S.A. 22-3213 expressly provided that the report was not discoverable until after the officer had testified. Unlike the instant case, the statute applicable in Nuessen prohibited discovery. Under those circumstances, the Court of Appeals correctly concluded that the district court was bound to follow K.S.A. 22-3213. 23 Kan. App. 2d at 460.
We conclude that the order in this case, requiring the county attorney to mail documents to the defendant, was a valid order within the discretion of the trial court. Rulings of the trial court on a defendant’s motion for discovery of evidence in the State’s possession are within the discretion of the trial court and will be set aside only upon a showing of abuse of that discretion. Rogers, 217 Kan. at 466. In this case, we conclude that the State has not demonstrated that the trial court abused its discretion in issuing its discovery order. The material requested comprised a mere five pages which could easily have been copied and sent by the State. Such action was not oppressive and was reasonable in light of the fact that defense counsel was some 45 miles away from the place where the records were kept. The order was well within the trial court’s discretion in order “to secure simplicity in procedure, fairness in administration, and elimination of unjustifiable expense and delay.” Hill, 211 Kan. at 294. The district court’s order was not an abuse of discretion.
Contempt Order
K.S.A. 22-3212(g) states that where a party fads to comply with a discovery order, the court may “order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems just under the circumstances.” In this case, upon the hearing of the discovery motion filed by the defendant the trial court in open court first requested that the county attorney provide the items requested to defense counsel. However, the State through the county attorney respectfully declined. The court reminded the county attorney that he would not want the court to have to hold him in contempt. The county attorney then advised the court that he was not a “Tinkel’s Copy Service.” At this time in open court the district court, after discussing the ease with which copies could be provided by counsel and the lack of any burden in providing the items requested, ordered the county attorney to provide the items by November 18, 1997. The county attorney again refused.
Instead of complying with the trial court’s order, the county attorney responded in writing, arguing that K.S.A. 22-3212 did not require him to comply. Upon written motion for contempt and after notice to the county attorney, a hearing was held in open court. The county attorney again refused to comply with the trial court’s order. Based upon this “willful and contemptuous refusal” the trial court entered an order finding the county attorney in contempt of court.
In Hendrix v. Consolidated Van Lines, Inc., 176 Kan. 101, 109, 269 P.2d 435 (1954), we quoted 12 Am. Jur., Contempt § 6, p. 392, for the following proposition:
" ‘Proceedings for contempt are of two classes — namely, criminal and civil. Criminal contempt proceedings are those brought to preserve the power and vindicate the dignity of the courts and to punish for disobedience of its orders. Civil contempt proceedings are those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties. The former are criminal and punitive in their nature, and the government, the courts, and the people are interested in their prosecution. The latter are civil, remedial, and coercive in their nature, and the parties chiefly interested in their conduct and prosecution are those individuals for the enforcement of whose private rights and remedies the suits were instituted.’ ”
We noted in Hendrix that the precise distinction between civil and criminal contempt is not always easy to define, in that particular contempt may take on some of the qualities and aspects of either contempt depending on the facts of the case. 176 Kan. at 109. See State c. Jenkins, 263 Kan. 351, 358-59, 950 P.2d 1338 (1997).
In this case, while the order deals with discovery, the order was entered in open court directly to the county attorney. The county attorney refused to comply. He again refused to comply after being given an final opportunity to explain reasons for his noncompliance in open court. We are satisfied as indicated by the trial court’s order that this conduct was “willful and contemptuous” and more in the nature of criminal contempt. The refusal of the county attorney to obey the order of the trial court in this case was an affront to the dignity and authority of the court and tended to obstruct the administration of justice. As such, the action of the county attorney constituted criminal contempt. See State v. Pondexter, 225 Kan. 425, 429, 590 P.2d 1074 (1979). We therefore affirm the trial court’s order finding the county attorney in contempt of court for his willful and contemptuous refusal to comply with a valid discovery order entered under the provisions of K.S.A. 22-3212.
Sanctions
Punishment and deterrence are valid and important considerations in selecting a sanction against a prosecutor for his or her failure to provide ordered discovery. Sanctions imposed by a trial court for contempt of court within the course of a criminal proceeding are matters left to the sound discretion of the trial court and will be set aside on appeal only in cases where it is demonstrated that the court has abused its discretion. Rogers, 217 Kan. at 466.
In this case, the trial court elected to dismiss the charges with prejudice for the refusal of the county attorney to comply with its lawful discovery order entered in open court on the record. Dismissal of charges oftentimes punishes the public, not the prosecutor, and creates a windfall to the defendant. See State v. Theriault, 590 So. 2d 993, 996 (Fla. App. 1991). The discretion afforded a trial judge is not unlimited. Where there has been no showing that the defendant suffered actual prejudice as a result of a prosecutor’s misconduct, and alternative means of sanctioning the prosecutor exists for the violation, dismissal of pending charges may constitute an abuse of discretion by the trial court. State v. Ramos, 83 Wash. App. 622, 637, 922 P.2d 193 (1996).
This court has held that “[a] dismissal with prejudice is a very drastic sanction to impose in a criminal case. Such sanction should not be imposed if a lesser sanction would accomplish the desired objective.” State v. Clovis, 248 Kan. 313, 331, 807 P.2d 127 (1991). There has been no showing in this case that the defendant suffered actual prejudice as a result of a prosecutor’s misconduct. Alternative means to sanction the county attorney directly in a manner that did not involve the public were available to the court. Under the circumstances, we conclude that the sanction of dismissal with prejudice was an abuse of discretion on the part of the trial court. In reaching this result, we affirm the concept that sound policy considerations favor resolution of criminal charges on their merits. See State v. Musumeci, 717 A.2d 56, 63 (R.I. 1998).
We do not mean to minimize the actions of the county attorney in this case by our decision. In State v. Sullivan & Smith, 210 Kan. 842, 847, 504 P.2d 190 (1972), we noted:
“We cannot refrain from re-emphasizing, however, that a discovery order entered by the court is not to be taken lightly by a member of the bar. Once an order has been made directing discovery, counsel has a continuing obligation to see that its terms are carried out in utmost good faith.”
Here, the trial court correctly found that the refusal by the county attorney was willful and contemptuous. Under such circumstances this refusal, as indicated above, constitutes criminal contempt, authorizing the court to enter sanctions that will vindicate the court’s dignity and authority. The primary purpose of any such sanction is to vindicate the authority of a court.
Kansas law authorizes the court to take action against the prosecutor personally through its contempt power as well as referring the attorney to the office of the Disciplinary Administrator for appropriate action. In extreme cases where counsel persists in a willful and contemptuous violation of a valid court order and no other lesser punishment will vindicate the court’s dignity and authority, a punitive judgment may be imposed. Pondexter, 225 Kan. at 429. A trial judge must choose a sanction sufficiently potent to achieve the goals of restoring the dignity and authority of the court and one that is in proportion to the contemptuous conduct. Punishment in appropriate cases may include a sentence to confinement. Any sentence imposed must be determinate and may also include conditions to allow for an earlier termination of the sentence upon certain actions being taken by counsel to comply with the order previously violated. See 17 Am. Jur. 2d, Contempt § 232, p. 584.
Upon the record we affirm the trial court’s order finding the prosecutor in contempt of court. However, we reverse the trial court’s sanction of dismissal with prejudice and remand this case for further proceedings.
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The opinion of the court was delivered by
Lockett, J.:
An intoxicated driver appeals an award of punitive damages assessed against him by the district court in a personal injury action. Plaintiff cross-appeals, claiming the jury’s denial of loss of work time was inconsistent with the evidence at trial.
On November 19, 1994, Carlson was employed by codefendant David Holland, d/b/a Dave’s Pumping Service. As part of his job, Carlson made deliveries and pickups in his employer’s one-ton Chevrolet pickup truck. The pickup truck was equipped with dual rear tires and hauled a 500-gallon steel sewage tank in the back. At the end of the work day on November 19, 1994, after making an out-of-town delivery, Carlson and his helper purchased a six-pack of beer from a liquor store to drink on the return trip to Emporia. To avoid detection by his employer and the police, Carlson drove the back roads.
Carlson took his helper home, had a couple of mixed drinks at his helper’s house, and then went home. After cleaning up, Carlson drove his employer’s truck to a local drinking establishment where he drank an additional four to six mixed drinks. It was dark and cloudy, and the streets were wet when Carlson left the local bar after 11 p.m. to buy some cigarettes. Carlson drove residential streets to minimize the chance his employer might observe him driving the company truck.
Carlson was aware that he was under the influence of alcohol and understood that driving in an intoxicated condition could cause harm to himself and others. Carlson, while traveling at a speed of 35 mph, was particularly concerned about the width of the pickup truck on the residential streets, so he concentrated his vision in his rearview mirrors to ensure the truck cleared the cars parked on the residential street. While looking into the rearview mirror, Carlson ran a stop sign at the “T” intersection where the plaintiff, Kenna J. Reeves, lived.
When Carlson became aware of the danger, he applied the brakes, but the combination of the wet grass, the 35 mph speed, and the momentum of the liquid in the 500-gallon sewage tank in the back of the truck made the brakes ineffective. The truck crashed through the front of Reeves’ home.
Reeves, a communications instructor at Emporia State University, was at home watching television and grading papers. Reeves heard a vexy loud noise and was immediately propelled through the air in the chair in which she was sitting. She bounced against the living room wall, the cabinets in the kitchen, and the refrigerator. Reeves got up and checked on her daughter, who was playing in the basement with a friend. She then called 911 for emergency assistance. Reeves was taken by ambulance to the hospital and treated for head and other injuries.
Carlson was arrested for driving under the influence of alcohol. When interviewed by the police, Carlson admitted that he was aware that he could not pass a breathalyzer test. When Carlson was asked by police if he thought he should be driving a vehicle in his condition, Carlson responded, “No, should have been my own.” A breathalyzer test revealed that Carlson’s breath alcohol concentration was .217.
Carlson was charged in a criminal complaint with various crimes. Carlson pled no contest to aggravated battexy, driving under the influence of alcohol, driving while suspended, and transporting an open container. He received a dispositional departure sentence of 24 months’ probation. Carlson’s probation was later revoked for a subsequent driving while under the influence conviction.
Reeves filed this action November 16, 1995, alleging that Carlson and his employer were liable for injuries she sustained when the truck Carlson was driving crashed into the walls of her home. Reeves’ motion to amend the petition to include punitive daxnages was granted.
When the civil action was tried, Carlson was in the custody of the Secretary of Corrections at the Norton Correctional Facility. The jury awarded Reeves $6,000 in noneconoxnic loss, $3,800 in medical expenses, and $1,000 for loss of consortium. The jury also found that Carlson’s actions were wanton, a finding that suppoxts an award for punitive damages. In a separate proceeding, the trial judge granted the plaintiff $10,000 in punitive or exemplary damages.
Carlson and his employer appealed the assessment of punitive damages to the Court of Appeals. Reeves cross-appealed the jury’s failure to award damages for loss of work time. The case was transferred to the Supreme Court pursuant to K.S.A. 20-3018(c).
PUNITIVE DAMAGES
To warrant an award of punitive damages, a party must prove to the trier of fact by clear and convincing evidence that the party against whom the damages are sought acted with willful or wanton conduct, fraud, or malice. K.S.A. 60-3702(c). Plaintiff’s allegations for punitive damages were based on a claim that Carlson’s conduct was wanton. Carlson contends that the trial judge erred in refusing to grant a directed verdict because there was insufficient evidence to find that his conduct was wanton.
In ruling on a motion for directed verdict pursuant to K.S.A. 1997 Supp. 60-250, the court is required to resolve all facts and inferences to be drawn from the evidence in favor of the party against whom the ruling is sought and, where reasonable minds could reach different conclusions based on the evidence, the motion must be denied and the matter submitted to the jury. This rule must also be applied when appellate review is sought on a motion for directed verdict. Hurlbut v. Conoco, Inc., 253 Kan. 515, 524, 856 P.2d 1313 (1993).
Carlson does not deny that he was intoxicated on the night of the accident. He admits he was aware of his intoxicated state, and cognizant that driving while intoxicated was dangerous to himself and to others. Further, Carlson also knew that driving while intoxicated was an unlawful act. Nevertheless, Carlson chose to drive. Carlson asserts even these admitted facts, combined with other evidence adduced at trial, do not support an inference that his conduct was wanton.
Wanton conduct is an act performed with a realization of the imminence of danger and a reckless disregard or complete indifference to the probable consequences of the act. K.S.A. 60-3401(f). A wanton act is more than ordinary negligence but less than a willful act. For an act to be wanton, the actor must realize the imminence of danger and recklessly disregard and be indifferent to the consequences of his or her act. Gould v. Taco Bell, 239 Kan. 564, 572, 722 P.2d 511 (1986). Wantonness refers to the mental attitude of the wrongdoer rather than a particular act of negligence. 239 Kan. at 572.
First, Carlson argues that K.S.A. 60-3702(c) requires clear and convincing proof that he was fully aware of and clearly understood that he was about to collide with Reeves’ home and that he was indifferent to the impending collision. Carlson contends that he had no reason to anticipate a collision with a house, much less with Reeves’ house. Therefore, he contends, it cannot be said that he was aware of the impending danger.
Carlson too narrowly defines what it means to commit a wanton act. In order for a plaintiff to prove wanton conduct, it is not necessary that the plaintiff’s evidence establish a formal and direct intention to injure any particular person. It is sufficient if the defendant evinced that degree of indifference to the rights of others which may justly be characterized as reckless.
Recklessness is a stronger term than negligence. To be reckless, conduct must be such as to show disregard of or indifference to consequences, under circumstances involving danger to life or safety of others. Mathes v. Robinson, 205 Kan. 402, 406, 469 P.2d 259 (1970). The keys to a finding of wantonness are the knowledge of a dangerous condition and indifference to the consequences. Lanning v. Anderson, 22 Kan. App. 2d 474, 481, 921 P.2d 813, rev. denied 260 Kan. 994 (1996).
Carlson acknowledges he was acutely aware of the risk he was taking when he decided to drive his employer’s pickup truck in his extremely intoxicated state at night on wet residential streets. Clearly, by Carlson’s own admission, there is sufficient evidence to support the trier of facts’ finding that Carlson acted recklessly and possessed the requisite degree of knowledge of danger.
As to indifference, Carlson asserts that he drove as carefully as possible under the circumstances, and, when he realized the imminent danger of collision, he applied his brakes to avoid the col lision. He was unable to avoid the collision only because of the momentum of the track and the wet road. Therefore, Carlson concludes that he was not indifferent to the danger of driving while intoxicated or to the imminent threat of injury to Reeves.
Carlson’s argument fails to recognize that the wanton conduct for which the punitive damages were assessed was not the collision, but his choice to drive under circumstances that would likely or probably result in a collision. The precautions and care Carlson details did little, if anything, to reduce that risk. In fact, Carlson’s precautions probably exacerbated the danger: Carlson kept his eyes trained on the rearview mirror instead of on the road ahead in an attempt to monitor the position of his wheels in relation to the parked cars. Consequently, he approached the “T” intersection at 35 mph, oblivious to the requirement to stop until it was too late. Carlson admitted at trial that because of his intoxicated state, he failed to compensate for the wet road conditions and the 500-gallon steel sewage tank in the back of the track.
It is fundamental that the law is regardful of human life and personal safety, and if one is grossly and wantonly reckless in exposing others to danger, it holds the person to have intended the natural consequences of his or her acts or omissions, and treats the person as guilty of willful and wanton wrong. One who with knowledge of existing conditions and aware from such knowledge that injury or death will likely or probably result from his or her conduct, and with reckless indifference to the consequences, consciously does some act or omits to discharge some duty, which produces the injurious result, is guilty of willful or wanton conduct. See Mathes, 205 Kan. at 405.
The evidence was sufficient to establish a reckless disregard of others, with a total indifference and unconcern for the probable consequences of involving danger to life and safety of others, although no harm was intended. Clearly, the precautions and extreme care Carlson claims he exercised to compensate for the dangerous situation were predictably insufficient to reduce the obvious risks involved. The minimal care required of Carlson under the circumstances was that Carlson not drive.
Carlson realized the dangers involved in driving under the circumstances. He was indifferent to the probable consequences of doing so. The facts admitted by Carlson and the evidence adduced at trial were sufficient to justify the trial court’s decision to submit the issue of punitive damages to the jury.
PUNITIVE DAMAGES ASSESSED
Carlson was assessed $10,000 in punitive damages. He contends that the punitive damage award was excessive considering the improbable nature of the accident that caused the harm, the criminal penalties he received as a result of this accident, and his necessitous financial condition. Furthermore, he argues, the award advances no public policy.
An award of punitive damages is not automatic upon a finding of willful or wanton conduct, fraud, or malice. Trendel v. Rogers, 24 Kan. App. 2d 938, 942, 955 P.2d 150 (1998). Under K.S.A. 60-3701, a bifurcated proceeding to determine punitive damages is established. The trier of fact determines if punitive damages should be awarded. The court, in a separate proceeding, then establishes the amount. A substantial list of factors is set forth in the court’s consideration in determining the amount of the award.
Subject to the provisions of K.S.A. 60-3702, the standard of review remains one of abuse of discretion. We must first determine whether the provisions of K.S.A. 60-3702 have been applied by the trial court in setting the amount of punitive damages. Once that determination has been made, the amount awarded will be set aside only upon a showing that the trial court abused its discretion, which is another way of saying that the action of the trial court was arbitrary, capricious, or unreasonable. When determining the amount of punitive damages to be awarded under K.S.A. 60-3702, it is incumbent on the trial court to make sufficient findings of fact to afford meaningful appellate review. See Smith v. Printup, 262 Kan. 587, 597, 938 P.2d 1261 (1997).
Carlson does not dispute the serious harm to the victim, but he does dispute that the harm was a foreseeable consequence of his misconduct. K.S.A. 60-3702(b) provides:
“At a proceeding to determine the amount of exemplary or punitive damages to be awarded under this section, the court may consider:
“(1) The likelihood at the time of the alleged misconduct that serious harm would arise from the defendant’s misconduct;
“(2) the degree of the defendant’s awareness of that likelihood;
“(3) the profitability of the defendant’s misconduct;
“(4) the duration of the misconduct and any intentional concealment of it;
“(5) the attitude and conduct of the defendant upon discovery of the misconduct;
“(6) the financial condition of the defendant; and
“(7) tire total deterrent effect of other damages and punishment imposed upon the defendant as a result of the misconduct, including, but not limited to, compensatory, exemplary and punitive damage awards to persons in situations similar to those of die claimant and the severity of the criminal penalties to which the defendant has been or may be subjected.
“At the conclusion of the proceeding, the court shall determine the amount of exemplary or punitive damages to be awarded and shall enter judgment for that amount.”
The trial court made the required findings to support the punitive damage award, including the findings that Carlson was aware of the likelihood that his conduct would cause serious harm and that serious harm arose from Carlson’s misconduct. The harm suffered by Reeves was not unforeseeable under the circumstances.
Carlson argues that the punitive damage assessment exceeds that which is necessary to punish his conduct. He recites an extensive list of court-imposed obligations that he must satisfy, some of which resulted from this action and some from other circumstances, including a child support arrearage and medical bills. The court considered Carlson’s financial condition, which included the fact that since incarceration, Carlson had earned 60 cents a day. The trial court was aware of Carlson’s obligations.
When considering the award of punitive damages, the trial court was particularly concerned that Carlson had violated his probation by incurring a subsequent DUI conviction. The court noted that the loss of liberty resulting from the criminal consequences of this incident had not been a sufficient deterrent to Carlson’s further violation of the same law. The trial court clearly had an interest in making Carlson aware of the punitive powers of the court to im press upon recalcitrant offenders the seriousness of their destructive choices.
Finally, Carlson contends that the assessment of punitive damages serves no public purpose but merely imposes a potentially insurmountable burden on him. He argues that the punitive award only discourages him regarding future attempts to become a productive member of society. This is another way of alleging the court acted arbitrarily, capriciously, or unreasonably. Carlson’s argument has no merit. Clearly, the trial court imposed the punitive damages in order to advance the objective of impressing upon Carlson the destructive consequences of his poor choices regarding drinking and driving. This is neither arbitrary nor unreasonable. Under the circumstances, it cannot be said that the court abused its discretion in assessing $10,000 in punitive damages against Carlson.
CROSS-APPEAL
The pretrial order included a claim by Reeves against Carlson for lost wages in the amount of $1,000. The jury verdict denied Reeves an award for lost wages. Reeves moved the court for a new trial, arguing the jury’s verdict was inconsistent with the uncontroverted evidence adduced at trial. The trial court denied the motion, stating the trial record was silent as to the loss of work time.
We note that there is scant evidence adduced at trial regarding plaintiff’s loss of work. Reeves testified that she earned $2,400 per month and that, in addition to the Thanksgiving and Christmas holidays from work, she missed 8 days of work due to her injuries. Based on the evidence adduced, the jury could have found the evidence insufficient to award the plaintiff for wages claimed lost.
A negative finding that a party did not cany its requisite burden of proof will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice. Kansas Pipeline Partnership v. Kansas Corporation Comm’n, 24 Kan. App. 2d 42, 52, 941 P.2d 390, rev. denied 262 Kan. 961 (1997). The trial court did not err in denying plaintiff’s motion for a new trial.
Affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
A state agency dismissed an employee. The employee appealed to the review board. The board modified the agency’s finding that suspension of the employee and a demotion was the appropriate sanction. The state agency appealed. The district court found that the board had statutory authority to affirm or reverse an agency action but lacked authority to modify the agency’s action and remanded the matter to the board to affirm or reverse the agency’s action. The employee appealed the district court’s finding and remand to the board. While this appeal was pending, the board redetermined the matter and affirmed the agency’s dismissal of the employee.
On August 23, 1996, Dean Carlson, Secretary of Transportation, wrote a letter to Roberta S. Humphreys, an employee of Kansas Department of Transportation (KDOT), proposing to dismiss her from her position as a Computer Operator III. Carlson’s letter indicates he proposed the action because Humphreys had misappropriated state funds by claiming work hours in excess of time actually worked.
After a hearing, Carlson decided to terminate Humphreys’ employment. Humphreys appealed to the Kansas Civil Service Board (Board). The Board heard the matter on November 5, 1996.
On November 21, 1996, the Board issued its final order, finding that Humphreys seriously abused her break times between January and July 1996. However, the Board determined that KDOT’s dismissal of the employee was unreasonably excessive and modified the agency’s dismissal. The Board ruled the appropriate sanction was a suspension of the employee without pay for a specified period of time and demotion to Computer Operator II.
KDOT appealed the Board’s decision to the district court. Although KDOT made numerous allegations of error to the district court, the appeal turned on KDOT’s claim that the Board lacked statutory authority to modify KDOT’s disciplinary action.
In reviewing the Board’s decision, the district court considered the legislative histoiy of the Board’s scope of review regarding dismissals, demotions, and suspensions of state employees. The court observed that prior to 1988, K.S.A. 75-2929e (Ensley 1984) of the Kansas Civil Service Act, K.S.A. 75-2925 et seq., provided that the Board had authority to affirm, modify, or reverse a disciplinary decision of a state agency. In 1988, the legislature repealed K.S.A. 75-2929e and replaced it with a provision that all hearings before the Board on the issue of the reasonableness of dismissals are subject to the Kansas Administrative Procedure Act (KAPA), K.S.A. 77-501 et seq.
Based on the repeal of K.S.A. 75-2929e, the district court concluded that the Board’s jurisdiction regarding review of a dismissal decision was limited to a determination of the reasonableness of the dismissal. The district court set aside the Board’s modification of KDOT’s order of dismissal and remanded the matter to the Board to affirm or reverse the agency’s dismissal of Humphreys. Humphreys filed a notice of appeal to the Court of Appeals on April 7, 1997, claiming that the Board had authority to modify the state agency’s disciplinary decision. The case was transferred to this court pursuant to K.S.A. 20-3018(c).
Meanwhile, in light of the district court’s remand order, the Board reconsidered its prior actions. In a May 1, 1997, final order, the Board then determined that KDOT’s dismissal of Humphreys was reasonable.
jurisdiction
Prior to transfer of this case from the Court of Appeals, the Court of Appeals questioned appellate jurisdiction based on the Board’s second order affirming the agency’s dismissal of Humphreys, which was filed subsequent to the filing of the notice of appeal in this case. In light of the subsequent order, the Court of Appeals requested the parties to brief the issue of jurisdiction. KDOT responded that the appellate courts lack jurisdiction to review the district court’s remand order because Humphreys did not appeal the Board’s subsequent and final order affirming her dismissal. Humphreys asserted that the appellate courts’ interest in judicial economy warrants review of the issue at this time.
The Kansas Act for Judicial Review and Civil Enforcement of Agency Actions (Kansas Judicial Review Act), K.S.A. 77-601 etseq., provides the exclusive means of obtaining judicial review of an agency action. See K.S.A. 77-606. Only those persons who have exhausted their administrative remedies may seek review under the Act. W. S. Dickey Clay Mfg. Co. v. Kansas Corp. Comm’n, 241 Kan. 744, 751, 740 P.2d 585 (1987). Those who appeal an agency action to the district court pursuant to the Act may appeal the district court decision to the appellate courts, just as parties do in other civil cases. K.S.A. 77-623.
Here, Humphreys exhausted her administrative remedies. KDOT appealed from the Board’s final order. The district court remanded the case to the Board. The district court’s decision was final. Humphreys appealed the district court’s order to the Court of Appeals. This she is permitted to do by K.S.A. 77-623.
Although the Board’s second order was signed on May 1, 1997, according to the order, it was considered on April 1, 1997. In light of Humphreys’ appeal, the Board did not have jurisdiction to redetermine Humphreys’ case. Therefore, the Board’s second order affirming Humphreys’ dismissal was without effect and does not impair this court’s jurisdiction to hear Humphreys’ appeal.
Board’s authority to modify agency decisions
Humphreys contends that pursuant to K.S.A. 75-2929d(b), the Board’s power to modify agency actions is provided by KAPA. Humphreys concludes that because the agency head has power to issue final orders under K.S.A. 77-526(c) of KAPA, the Board has all the powers of the agency head, which include the power to issue orders modifying unreasonable agency actions. For authority, Humphreys cites K.S.A. 75-2929d(b) of the Kansas Civil Service Act, which states, in part: “Hearings shall be conducted in accordance within the provisions of the Kansas administrative procedure act. For purposes of the administrative procedure act, the state civil service board shall be deemed the agency head.” (Emphasis added.)
KDOT contends that KAPA provides only the procedures for civil service proceedings; thus, it provides procedural rather than substantive rights. KDOT argues that the rights at issue in this case are substantive rather than procedural. Therefore, according to KDOT, KAPA has no bearing on the issue in this case. KDOT’s argument is based on K.S.A. 77-503(b) of KAPA, which provides: “This act creates only procedural rights and imposes only procedural duties. They are in addition to those created and imposed by other statutes.” We disagree with KDOT’s analysis.
This issue is one of first impression in Kansas. The procedure for judicial review of an administrative agency action is set out in the Kansas Judicial Review Act. K.S.A. 77-621(c)(4) permits judicial review when an agency has misinterpreted or misapplied the law. When a party disputes the district court’s interpretation of a statute, the issue raised is a question of law. An appellate court’s scope of review on questions of law is unlimited. See In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997).
Our analysis requires us to consider the administrative review procedures found at K.S.A. 75-2929e (Ensley 1984) of the Kansas Civil Service Act, the current administrative review procedures found in KAPA, and the power of the district court to review administrative actions under the Kansas Judicial Review Act.
When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. State v. Clint L., 262 Kan. 174, Syl. ¶ 2, 936 P.2d 235 (1997). Where a reading of a statute leaves its construction uncertain, the court 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. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1978]). See Brown v. U.S.D. No. 333, 261 Kan. 134, 142, 928 P.2d 57 (1996) (interpreting the Kansas Administrators’ Act).
First, we note that prior to 1988, the Kansas Civil Service Act provided, as it does currently, that any permanent employee finally dismissed, demoted, or suspended, may request a hearing from the Civil Service Board to determine the reasonableness of such action. See K.S.A. 75-2949(f) (Ensley 1984); K.S.A. 75-2949(f). In 1988, the legislature amended the Kansas Civil Service Act to provide that hearings before the Board be conducted in accordance with KAPA. See L. 1988, ch. 356, § 301. In so doing, the legislature repealed K.S.A. 75-2929e (Ensley 1984), the section which had provided the procedure for administrative review in cases where an employee in the classified service of the State complained of a wrongful dismissal. See Pecenka v. Alquest, 232 Kan. 97, 99, 652 P.2d 679 (1982). K.S.A. 75-2929e had provided the language that is the subject of the controversy in this case: “The state civil service board . . . after hearing and consideration of the evidence shall affirm, modify or reverse a case on its merits and order any other action it deems appropriate.” (Emphasis added.)
Because the Board had authority prior to 1988 (and still has that same authority) to determine the reasonableness of an agency’s disciplinary action, it cannot be said that the Board’s authority to determine the reasonableness of an agency’s disciplinary action was a provision specifically crafted by the legislature in 1988 to limit the Board’s present authority on review of agency actions to affirm or reverse. As noted previously, the legislature repealed K.S.A. 75-2929e to adopt the KAPA review procedures for agency actions. Therefore, this court must look to KAPA to ascertain the scope of the Board’s authority to review agency employee disciplinary decisions.
K.S.A. 77-526(c) of KAPA provides that the Board shall, upon review of an agency action, render a final order which shall include
“findings of fact, conclusions of law and policy reasons for the decision if it is an exercise of the state agency’s discretion, for all aspects of the order, including the remedy prescribed and, if applicable, the action taken on a petition for stay of effectiveness. Findings of fact, if set forth in language that is no more than mere repetition or paraphrase of the relevant provision of law, shall be accompanied by a concise and explicit statement of the underlying facts of record to support the findings. . . .”
Clearly, a final order authorized by KAPA is more than an affirmance or disapproval of the agency action. The Board is empowered to prescribe a remedy.
Under KAPA, the Board has the authority to affirm, modify, or reverse a case on its merits and to order any other action it deems appropriate. Pursuant to K.S.A. 77-526(c) of KAPA, the Board’s order modifying KDOT’s disciplinary action was a final order. Although the district court had authority pursuant to K.S.A. 77-622(d) of the Kansas Judicial Review Act to remand the case to the Board, the district court erred in concluding the Board acted outside its jurisdiction.
The district court’s determination that the Board was without jurisdiction to modify the agency’s dismissal is reversed. The Board’s subsequent affirmance of the agency’s action on remand of the district court is set aside. The case is remanded to the district court for further action pursuant to K.S.A. 77-622. | [
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Per Curiam:
This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against Terence A. Lober, an attorney admitted to the practice of law in the state of Kansas, whose business address is 117 Cherokee Street, Leavenworth, Kansas 66048.
The complaint against respondent charges him with violations of the Model Rules of Professional Conduct (MRPC) 1.1 (1998 Kan. Ct. R. Annot. 279) (competence), MRPC 1.3 (1998 Kan. Ct. R. Annot. 288) (diligence), MRPC 1.4 (1998 Kan. Ct. R. Annot. 296) (communication), MRPC 1.16 (1998 Kan. Ct. R. Annot. 341) (declining or terminating representation), MRPC 3.1 (1998 Kan. Ct. R. Annot. 350) (meritorious claims and contentions), MRPC 3.2 (1998 Kan. Ct. R. Annot. 351) (expediting litigation), MRPC 3.3 (1998 Kan. Ct. R. Annot. 354) (candor towards the tribunal), MRPC 4.1 (1998 Kan. Ct. R. Annot. 366) (truthfulness in statements to others), MRPC 8.1 (1998 Kan. Ct. R. Annot. 382) (bar admission and disciplinary matters), MRPC 8.4 (1998 Kan. Ct. R. Annot. 386) (misconduct), and Supreme Court Rule 207 (1998 Kan. Ct. R. Annot. 222).
Respondent did not file exceptions to the facts, which are deemed to be admitted pursuant to Rule 212(c) and (d) (1998 Kan. Ct: R. Annot. 236).
The panel unanimously found by clear and convincing evidence:
“2. Case No. A6882 (Count I) was opened because of a complaint Debby L. Egli-Woodward filed with the Disciplinary Administrator in January, 1997. . . . She retained Respondent in November, 1995, to handle her divorce. He filed her petition in January, 1996 and the court decreed tire divorce final in May, 1996. Respondent did not file the Journal Entry until December 3, 1996, despite numerous requests for filing from Ms. Egli- Woodard. The court held a hearing on December 3, 1996 to show cause why the divorce should not be dismissed for failure to file a journal entry. As a result of agreements between the parties at that hearing, Respondent was responsible for filing a Qualified Domestic Relations Order. He did not file this order until April, 1997, three months after Ms. Egli-Woodard filed her ethics complaint. Beginning January 30, 1997, the Disciplinary Administrator wrote Respondent to investigate the complaint. Respondent did not answer the investigator’s numerous inquiries until June 4, 1997 . . . after trying to convince Ms. Egli-Woodard to withdraw her complaint.
“3. Case No. A6913 (Count II) arose from Respondent’s handling of a post divorce child support matter for his client Roger Bonner. By letter dated March 9, 1995, Respondent proposed a change in child support to the wife’s counsel as follows: Mr. Bonner would increase monthly child support payments from $400 to $651, provide no health insurance, and be allowed to claim tire three children as deductions on his income tax return. Mr. Farris, counsel for Mrs. Bonner, sent a proposed Journal Entry to Respondent in April 1995. Respondent wrote Mr. Bonner that their offer was accepted and he should pay the increased child support. Respondent never showed the proposed Journal Entry to Iris client. In 1997, Mr. Bonner’s new attorney obtained a copy of the Journal Entry which did not address the health insurance issue or the tax deductions. This so angered Mr. Bonner that he reduced his child support payments to $400 a month and the settlement fell apart.
“4. Case No. A7101 (Count III) concerns Respondent’s representation of Sam Cousin in a divorce petition filed in Leavenworth County by Terne Cousin. Mr. Cousin paid Respondent $334.00 and asked that Respondent have venue changed to Wyandotte County where both Mr. and Mrs. Cousin resided. Although he knew, on May 16, 1997, .that the divorce was scheduled for hearing on May 22, Respondent did not formally request a continuance. On May 21, he called opposing counsel who refused to agree to the continuance. Respondent had not and did not enter his appearance on behalf of his client. Nor did Respondent appear at the May 22 hearing; he had earlier told his client not to appear because he would get a continuance. The court granted the divorce by default and Mr. Cousin received the decree in the mail in early June, 1997. Mr. Cousin complained to the Disciplinary Administrator in August, 1997 after he could not get Respondent to help him despite 25 phone calls, most not returned by Respondent. With the default divorce granted, Respondent wrote to opposing counsel, to Mr. Cousin, and to Mr. Cousin’s new attorney, regarding change of venue, and expressing shock at the default divorce. . . . Mr. Cousin never was successful in overturning the default divorce, even with new counsel. When the Disciplinary Administrator’s office investigated the matter, Respondent failed to cooperate.
“5. Case No. A7124 (Count TV) is based on a complaint by Carol J. Warme who retained Respondent in December, 1995 to represent her in a post divorce military retirement benefit matter. Respondent predicted that it would take 4-5 months to resolve the issues, but it was December, 1996 before an order was finalized. Then the payments beginning in January 1997 were lower than expected. Ms. Warme tried to reach Respondent with urgent phone messages between Januaiy and April, 1997. Respondent did not return her calls until April 28. He wrote a letter on her behalf in early May 1997, but thereafter, he neglected to return her calls or letters from June to September 1997. So in October 1997, she filed tire disciplinary complaint. Despite letters from the Disciplinary Investigator in November and December, 1997, Respondent did not cooperate in tire investigation of this complaint.”
Based upon the above enumerated findings of fact, the hearing panel reached the following conclusions of law:
“Count I - Debby L. Egli-Woodward
“The panel finds, by clear and convincing evidence, that Respondent violated [MRPC] 1.3 and 3.2 by failing to diligently pursue Ms. Egli-Woodard’s divorce to completion. Taking from May to December to file tire Journal Entry unduly and inexcusably delayed the finality of her divorce. The panel also finds, by clear and convincing evidence, that Respondent’s neglect of the divorce case, and Respondent’s failure to cooperate with the investigation by the Disciplinary Administrator violated [MRPC] 8.4.
“Count II - Roger Bonner
“The panel finds, by clear and convincing evidence, that Respondent did not competently represent Mr. Bonner in his child support matter: Respondent misinformed Mr. Bonner that opposing counsel had accepted the proposed changes to child support. He neglected to send Mr. Bonner a copy of opposing counsel’s draft Journal Entry that contained terms different from the proposed changes. . . . These facts clearly and convincingly support the panel’s finding that Respondent violated [MRPC] 1.1 and 1.4. Respondent never did finalize the changes in child support from the time he was hired (April 1995) until he was fired in early 1997. This is clear and convincing evidence supporting the panel’s findings that Respondent violated [MRPC] 1.3 and 3.2. Respondent’s failure to act resulted in Mr. Bonner paying more child support without the tax advantages he sought and without releasing him from providing health insurance. Furthermore Mr. Bonner had to hire a second attorney to straighten the matters out. These facts are clear and convincing evidence to support the panel’s finding that Respondent violated [MRPC] 8.4.
“Count III - Sam Cousin
“The panel finds, by clear and convincing evidence that Respondent violated [MRPC] 1.1 and 1.3 because he did not competently or diligently represent Mr. Cousin in his divorce. Respondent failed to enter his appearance for Mr. Cousin in a timely manner, and did not appear at the scheduled May 22 hearing. The panel also finds, by clear and convincing evidence that Respondent violated [MRPC] 1.4 and 4.1 when he misinformed Mr. Cousin that the hearing had been continued, when he failed to return numerous (25) phone calls from Mr. Cousin, when he represented in letters to opposing counsel, and to Mr. Cousin, that there was an agreement between the attorneys to change venue. The panel finds, by clear and convincing evidence, that Respondent violated [MRPC] 3.1 and 3.3 by filing on June 13, 1997, his Motion to Change Venue and Motion to Set Aside Decree of Divorce based on fraud of improper venue, knowing full and well that K.S.A. 60-260 was not applicable to the situation. Respondent’s failure to respond to the Disciplinary Administrator’s investigator or otherwise cooperate with the investigation, is clear and convincing evidence to support our finding that Respondent violated [Supreme Court Rule] 207 and [MRPC] 8.1. All of the foregoing facts further support the panel’s finding that Respondent’s representation of Mr. Cousin violated [MRPC] 8.4.
“Count IV - Carol Warme
“Respondent’s actions in representing Ms. Warme mirror his actions in representing Mr. Cousin, Mr. Bonner and Ms. Egli-Woodward: He neglected to return Ms. Warme’s phone calls, he failed to expedite his handling of her benefits matter to a reasonable and timely conclusion. By the time of his representation of Ms. Warme, Respondent was aware that his practice was suffering from his alcoholism. Yet he failed to withdraw his representation of Ms. Warme as required by [MRPC] 1.16. The foregoing facts are clear and convincing evidence by which the panel finds Respondent in violation of not only [MRPC] 1.16 but also [MRPC] 1.3, [MRPC] 1.4, [MRPC] 3.2, and [MRPC] 8.4. Respondent also violated [MRPC] 8.1 and [Supreme Court Rule] 207 because he failed to respond or cooperate with the Disciplinary Administrator’s investigation of Ms. Warme’s complaint.”
In considering aggravating factors, the hearing panel found respondent had received two prior informal admonitions in 1994 and in 1996 for lapses in diligence and communication; the four counts showed a pattern of multiple offenses; he failed to communicate with the Disciplinary Administrator or investigator or provide requested information except during the month proceeding the hearing when respondent began cooperating in the investigation, recognized his alcoholism, and stopped denying the validity of his clients’ complaints; he has been admitted to the practice of law for 18 years and has sufficient experience so that he should have been attentive to his duties and responsibilities to his clients.
In considering matters of mitigation, the hearing panel found respondent recognizes he has suffered and continues to suffer from alcoholism and depression. He has admitted his transgressions and begun treatment for his alcoholism. He offered letters of support from people in his community. He has not been involved in misuse of funds, and desires to restrict, minimize, and continue his practice of law.
After reviewing all applicable factors, the hearing panel recommended that imposition of discipline against respondent be suspended and that he be placed on supervised probation for 2 years under the supervision of attorney Robert D. Beall, as to his practice of law, and Donald L. Zemites, as to his sobriety; that respondent abstain from the use of alcohol; and that both monitoring attorneys will immediately report any violation by respondent of the MRPC or his failing to abstain from alcohol. Any violations during the probationary period shall result in a show cause order issued from the Supreme Court of Kansas.
The Disciplinary Administrator’s office agreed generally with the findings of the panel, but prior to the formal hearing before this court, noted the filing of additional complaints, most of which had been found to be without merit, although one had been referred to the review committee. The continued failure of prompt response by respondent caused the Disciplinary Administrator’s office to withdraw its support for the proposed pian of supervised probation, and it requested that the court impose indefinite suspension from the practice of law.
At the time of the hearing before our court, respondent, through counsel, presented statements of Donald L. Zemites of the Kansas Lawyers Assistance Program Committee showing successful treatment for alcoholism and continued sobriety; showed that Robert D. Beall has been monitoring respondent’s practice and continuing to work as his supervising attorney; showed respondent has obtained evaluation from Cherilyn DeSouza, M.D., who recommended and has commenced treatment for depression with medication and therapy on an ongoing basis; and presented a letter from The Bar Plan Mutual Insurance Company offering malpractice insurance coverage.
We have reviewed the record and conclude the factual findings and conclusions of law of the panel are supported by clear and convincing evidence.
While a minority of this court would order an immediate indefinite suspension from the practice of law, a majority of the court is in partial agreement with the recommendation of the hearing panel, so long as additional protections for the public and monitoring is involved.
It Is Therefore Ordered that imposition of discipline against Terence A. Lober be suspended and he is placed on supervised probation for a period of 2 years from the date of this order.
It Is Further Ordered:
(1) During the probation period, respondent’s practice of law is to be supervised by attorney Robert S. Beall, who will report to the Disciplinary Administrator on a quarterly basis concerning respondent’s management of cases and legal matters entrusted to him. Any material deviation from proper practice or a known violation of the conditions of probation shall be immediately reported to the Disciplinary Administrator.
(2) Mr. Beall shall be afforded all immunities granted by Supreme Court Rule 223 (1998 Kan. Ct. R. Annot. 264) during the course of his activities as directed by this order. Respondent will allow Mr. Beall access to his files, his employees, his trust account, and his doctors.
(3) Respondent shall abstain from alcohol consumption and continue treatment for alcohol abuse under the general supervision of Donald L. Zemites of the Kansas Lawyers Assistance Program Committee, who shall report to the Disciplinary Administrator any abandonment of sobriety or conduct likely to result to the detriment of respondent’s clients.
(4) Respondent shall continue treatment under the direction of Dr. Cherilyn DeSouza, whom he shall see on a regular basis, and take any prescribed medication and therapy as directed by Dr. DeSouza. Dr. DeSouza shall keep the Disciplinary Administrator informed of respondent’s progress in such manner as the Disciplinary Administrator shall request.
(5) Respondent shall use his best efforts and obtain errors and admission liability coverage with The Bar Plan Mutual Insurance Company and furnish a certificate evidencing coverage to the Disciplinary Administrator and provide notification to the Disciplinary Administrator and the supervising attorney upon any change or cancellation of the policy.
(6) Respondent shall not violate any of the Model Rules of Professional Conduct during the term of his probation and thereafter. He shall immediately respond to inquires from the office of Disciplinary Administrator and supervising attorneys.
It Is Further Ordered that, in the event respondent fails to abide by the conditions set out herein, a show cause order shall issue to respondent, and this court shall take whatever disciplinary actions it deems just and proper, including disbarment, without further formal proceedings.
It Is Further Ordered that this order be published in the official Kansas Reports and that the costs of the proceeding be assessed to respondent.
Davis, J., not participating.
Robert J. Lewis, Jr., Judge, assigned. | [
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The opinion of the court was delivered by
Abbott, J.:
Defendant Shawn A. Alderson previously appealed his convictions for felony murder and severity level 4 aggravated battery. See State v. Alderson, 260 Kan. 445, 922 P.2d 435 (1996) (.Alderson I).
In Alderson I, we held that under the facts of defendant’s case, the use of randomness of the crime as an aggravating factor to justify an upward durational sentencing departure was proper. We vacated defendant’s sentence, however, because we were convinced that the judge’s impartiality at sentencing might reasonably be questioned. We stated:
“[A] majority of this court is of the opinion that a reasonable person having full knowledge of the facts would reasonably question the impartiality of the judge if the judge was about to sentence a defendant when the judge’s brother was the victim of a theft involving the defendant being sentenced. We do not question die trial judge’s actual impartiality in this case. Nor do we question the sentence imposed as being unduly harsh. . . . It is vital to the legal system that the public perceive the system as impartial. The majority of this court is of the opinion a reasonable person with knowledge of all die facts would have reasonable doubt as to the judge’s impartiality. We therefore vacate the sentence and remand the case to the trial court for resentencing by a different judge.” 260 Kan. at 469.
This is defendant’s appeal from resentencing wherein a different judge imposed the same upward durational sentencing departure. The appellate defender filed a brief on defendant’s behalf, challenging the trial judge’s use of “randomness” as a basis for an upward durational departure. Defendant then filed his first pro se brief in March 1998, and a second pro se brief in June 1998. The State filed briefs in response to both of defendant’s pro se briefs. The defendant’s notice of appeal raises only the resentencing issue. Specifically, the appellate defender’s brief challenges the upward durational departure sentence for essentially the same reasons that this sentence was challenged in the first appeal. Defendant raises some issues that we decided in Alderson I, and his other issues are raised for the first time on appeal.
The facts are fully set out in Alderson I. Highly summarized, the facts are as follows:
During the evening of June 15, 1994, defendant and Vernon Harris, Jr., were cruising the Wichita streets in a stolen red Chevrolet Blazer sport utility vehicle. (We vacated the sentence because the Blazer belonged to the sentencing judge’s brother and was stolen from the home of the father of the sentencing judge.) Defendant and Harris were part of a three-vehicle caravan that was together throughout the evening, and occupants of the vehicles in the caravan were witnesses to the events that transpired that evening. Defendant occupied the Blazer as both the driver and as a passenger during the evening.
While defendant was driving the Blazer, the caravan saw a fight in a parking lot and the occupants of all three vehicles stopped to watch the fight. The fight involved Larry Goodwin, the victim of the felony murder, and his friend, Jeff Tipton. Three individuals, Robert Ross, Victor Trudo, and Pat Benware had stopped in the parking lot when Goodwin and Tipton pulled into the lot. Tipton accused Ross, Trudo, and Benware of “cutting them off” in traffic. These three individuals then proceeded to beat Tipton into a state of unconsciousness. About the time that Ross, Trudo, and Benware were beating Tipton senseless, the three-vehicle caravan, led by the Blazer, with defendant as the driver and Harris as a passenger, pulled into the parking lot.
While Tipton was lying on the ground, Harris got out of the passenger side of the Blazer and fired two or three shots into the rear of Goodwin’s car. Goodwin was in the driver’s seat at the time Harris shot into his car. As we noted in Alderson I, Goodwin and Harris never exchanged any words and the record indicated that defendant and Harris had never seen Goodwin or Tipton before the incident.
After Harris fired shots at Goodwin’s vehicle, Goodwin drove the car in a circle, but ended up in the same place and facing the same direction from which he started. Goodwin’s vehicle was next to the Blazer, facing the opposite direction, with the drivers adjacent to each other. Ross testified that defendant fired three shots from the Blazer’s driver’s seat into Goodwin’s car. One of the bullets struck the back of Goodwin’s left shoulder, injuring Goodwin’s spine, paralyzing him from the neck down, and causing his death a few days later. 260 Kan. at 448.
After Goodwin was shot, the three-car caravan left the parking lot and resumed cruising the Wichita streets. As they were cruising the streets, they came upon two young persons walking beside the road. Defendant leaned out of the passenger side of the Blazer and fired a shot at the pedestrians. Two members of the caravan looked back and observed that one of the pedestrians had fallen to the ground.
Tyrone Elam was a 16-year-old pedestrian shot by defendant. He testified at defendant’s trial that on the evening of June 15, 1994, he was walking with his brother when three cars, including a Blazer, drove by them. Elam heard someone yell, “ Tou’re as dead as hell,’ ” and then he fell to the ground. Elam was severely injured by the shot and “part of the bullet is still in his body.” Because of this wound, one of Elam’s kidneys and 52% of his liver had to be removed, and his lungs collapsed twice. Elam testified that “he had never seen the defendant before the evening of June 15.” 260 Kan. at 449.
Defendant was convicted of first-degree felony murder and severity level 4 aggravated battery. The court found that defendant had a criminal history of “I,” and neither party objected to the criminal history finding. Defendant was sentenced to the presumptive guidelines sentence of life in prison for the felony murder conviction. Neither party objected to this sentence. The presumptive guidelines sentence for the aggravated battery conviction, with defendant’s criminal history, is 38 to 43 months. The court imposed an upward durational departure of 86 months for the aggravated battery conviction due to the “randomness” of the attack on Tyrone Elam.
K.S.A. 1993 Supp. 21-4716 provides for durational departures and states:
“(a) The sentencing judge shall impose the presumptive sentence provided by the sentencing guidelines for crimes committed on or after July 1, 1993, unless the judge finds substantial and compelling reasons to impose a departure. If the sentencing judge departs from the presumptive sentence, the judge shall state on the record at the time of sentencing the substantial and compelling reasons for the departure.”
The Alderson 1 court held that defendant’s substantial rights were not prejudiced by the grounds for the departure. The judge based his decision to depart on the nature and circumstances of the crime and the history, character, and condition of this defendant, and, most importantly, on the “ ‘total senseless randomness of this shooting.’ ” 260 Kan. at 467. Contrary to defendant’s assertions, the trial court based its decision to depart on the factors particular to this case. We stated in Alderson I:
“It was the defendant’s own act of randomly shooting a man walking on a bridge which was the focus of the court’s decision to impose the departure sentence. As such, the sentencing court did not err in relying on the randomness of this crime when it imposed the departure sentence, and the defendant’s substantial rights were not prejudiced.” 260 Kan. at 467.
On October 30, 1996, Judge Owens conducted the resentencing. When making sentencing guidelines findings, the judge first noted that because the first-degree murder conviction is an off grid offense and carries its own penalty of life imprisonment, a finding is unnecessary for that offense. However, the aggravated battery re quired a sentencing guidelines finding and the judge professed that “[i]t is a crime Severity Level 4 offense, and the defendant’s prior criminal history according to the PSI places him in category I.”
The judge sustained the State’s motion for an upward departure. He remarked that this court had already held in Alderson I that the previous finding of randomness was sufficient for a departure factor under the facts of this case, and after reviewing the facts, he agreed that “this is a total random act of senseless unprovoked violence and that if this doesn’t cry out for an upward departure, I don’t know what set of facts would.” Thus, Judge Owens sentenced defendant to life imprisonment on the first-degree murder conviction and 86 months on the aggravated battery with the sentences to run consecutively.
On March 16, 1998, we granted defendant’s motion to represent himself. On April 16, 1998, this court granted the appellate defender’s motion to withdraw as counsel because defendant had filed a motion to represent himself and that motion had been granted. The appellate defender, however, had already submitted a brief on behalf of defendant in February 1998. On May 4, 1998, the appellate defender’s office sent defendant a letter stating that it had been allowed to withdraw from his case and that it was sending him the record on appeal. Defendant filed his first pro se brief in March 1998 and his second pro se brief in June 1998.
Defendant was resentenced on October 30, 1996. His notice of appeal following the resentencing was timely filed. The notice of appeal states only that defendant, through his attorney, appeals his sentence imposed on October 30, 1996.
This is defendant’s only issue that is appropriately before the court. The defendant did not raise this issue in his pro se briefs. Rather, it was raised by the appellate defender’s brief before this court granted defendant’s motion to represent himself. The original sentencing judge granted the State’s upward departure motion because of the aggravating factor of the total and complete randomness of defendant’s act of shooting Tyrone Elam. (Alderson I.) The resentencing judge based his upward departure on the same reasons that the original sentencing judge did.
In Alderson I, defendant claimed that the use of “randomness” was an improper factor for departure because “randomness” of a crime, in and of itself, is not a substantial and compelling reason justifying departure. In Alderson I, we stated that under K.S.A. 1993 Supp. 21-4716(b)(1), the legislature listed several factors which qualify as substantial and compelling reasons justifying departure. Relying on this list of factors, defendant contended that a departure sentence should be imposed only for a crime which is purposefully committed with a specific state of mind, or when a particular relationship exists between defendant and the victim. Since the randomness of a crime is a factor which is opposite from those aggravated factors listed in the statute, defendant contended that the randomness of a crime is not a substantial and compelling reason to justify departure. In Alderson Z, we held:
“It is true that the aggravating factors listed in 21-4716(b)(1) relate to a particular intent, a particular victim, or a particular relationship between the defendant and the victim. However, this list specifically states that it is not an exclusive list of factors which may justify departure. We find as a matter of law that other factors, such as random shooting, may qualify as a substantial and compelling reason justifying departure. Here, due to the randomness of the crime, the victim had no way to avoid injury as opposed to other victims of aggravated battery who can possibly diffuse a conflict. Thus, the use of the randomness of the crime as an aggravating factor to justify an upward durational sentencing departure was proper in this case.” 260 Kan. at 468.
In Alderson I, we held that under the facts of this case, the use of randomness of the crime as an aggravating factor to justify an upward departure was proper in defendant’s case. Defendant has presented no persuasive authority to cause us to change our original holding. Thus, the resentencing judge did not err in sentencing defendant to the same upward durational departure sentence which we held as a matter of law was not erroneous under the circumstances of this case. This issue fails.
Defendant raises five other issues in his two pro se briefs. None of those issues were raised in the trial court when the case was remanded for resentencing or at any other time, nor has he listed any of the issues in his notice of appeal. In addition, several of the issues were raised in Alderson I and decided adversely to defend ant. An appellant is bound by the issues raised in the notice of appeal, although we give the notice of appeal a liberal construction to assure justice. State v. Griffen, 241 Kan. 68, 69-70, 734 P.2d 1089 (1987). Here, the only issue presented to the trial court was resentencing, and the record reflects that resentencing was all that was presented to and considered by the trial court. Consequently, we are left without jurisdiction to consider defendant’s other issues. We also note that if we had jurisdiction, it would be of no comfort to defendant because we find no merits in his arguments.
Affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
Kansas retailers in the business of selling- motor fuel are wholly owned by Native Americans, but not members of an Indian reservation within the borders of this state where their retail establishments are located. Neither the Prairie Band of Kansas Potawatomi nor any member of the tribal reservation upon which the Retailers are located is a party to this suit. The district court found the Native American retailers were not exempt from payment of the state motor fuel tax collected by distributors that supplied gasoline and diesel fuel for sale. The Native American retailers appealed, claiming: (1) that K.S.A. 79-3408 exempts them from the payment of retail sales tax because the Potawatomi Indian reservation is' a “territory” or other “state”; (2) the State’s refusal to grant the tax exemption violated the Equal Protection Clause of the Fourteenth Amendment; (3) the legal incidence of tax under the Kansas motor fuel tax statutes is on the retailer; and (4) the district court erred in failing to grant a temporary restraining order and preliminary injunction.
Plaintiffs are two Native American members of the Citizen Band Potawatomi Tribe of Oklahoma (Retailers) who own or owned retail gasoline convenience stores located on the Prairie Band of Kansas Potawatomi Reservation approximately 5 miles south of Holton, Kansas. Retailers were billed by their distributors for payment of the motor fuel tax.
Until September 6, 1995, Retailers were not taxed by the State for motor fuel delivered for retail sale to consumers. On that date, John LaFaver, Secretary of the Kansas Department of Revenue (KDR), issued Notice 95-11 which announced that KDR was going to begin “enforcement of a 1995 law requiring the department to collect motor fuel taxes from distributors when fuel is subsequently sold on Native American reservations in Kansas.” The Secretary set out a procedure through which Native Americans whose claims exceeded $25 could request and receive a refund for tax they paid for motor fuel purchased on a Kansas Indian reservation. Nontribal members who purchased motor fuel on the reservation were not eligible for a refund of the motor fuel tax paid.
After September 6, 1995, the distributors billed Retailers for the cost of the gasoline purchased, plus $0.18 per gallon for Kansas motor fuel tax. Retailers filed an action in the district court of Kansas to enjoin KDR from collecting tax on gasoline purchased by them for resale. First, Retailers claimed an exemption under K.SA. 79-3408(d)(1) which specifically exempts the imposition of tax on fuels delivered “for export from the state of Kansas to any other state or territory or to any foreign country.” (Emphasis added.) Second, Retailers claimed that treating Indian territory differently than other territories for tax purposes violated the Equal Protection Clause of the Constitution of the United States. Retailers also asserted that a tax compact between the Potawatomi and the State of Kansas precluded taxation of fuels delivered to businesses on the reservation. This issue was not preserved for appeal. Finally, Retailers claimed that the incidence of taxation on them was not permissible under well-settled law governing taxation of Indians on reservations.
In the district court the State argued against the injunction, claiming that under the statutory scheme the incidence of taxation falls on the distributor, not the retailer; therefore, Indian retailers are not taxed. The State also argued that the exemption from taxation under K.S.A 79-3408 did not apply because Indian reservations are not separate territories. Consequently, the State contends, Retailers were not being treated dissimilar under Kansas law to any other seller of fuels in Kansas; therefore, no constitutional right was violated by the tax.
Both parties filed motions for summary judgment. In granting the State’s motion for summary judgment, the district court noted that there was no factual dispute: The plaintiffs are Indians, but they are not members of the tribe of the reservation. Both retail businesses are situated on a state highway, within the state of Kansas. Their retail sales are to tribal members from the reservations and the traveling public on the major highway which connects Topeka to the nearest city to the north.
The district judge considered K.S.A. 79-3408, which provides, in part:
“(a) A tax per gallon or fraction thereof, at the rate computed as prescribed in K.S.A. 79-34,141, and amendments thereto, is hereby imposed on the use, sale or delivery of all motor vehicle fuels or special fuels which are used, sold or delivered in this state for any purpose whatsoever.
“(d) No tax is hereby imposed upon or with respect to the following transactions:
(1) The sale or delivery of motor-vehicle fuel or special fuel for export from the state of Kansas to any other state or territory or to any foreign country.”
The district judge found that the intent of the legislature in enacting K.S.A. 79-3408 was to impose a tax on wholesale gasoline sold within the boundaries of the state to raise revenue for the maintenance, construction, and upkeep of highways within the state of Kansas. The judge noted that the legal incidence for collecting this tax falls on the distributor of the fuel, and the statute excepted the sales of fuel from the tax where the fuel is exported to other states, territories, or foreign countries. The judge con- eluded that the exception provided in K.S.A. 79-3408(d)(1) refers to other states, territories, or foreign countries located outside the boundaries of the state of Kansas, and those sales are exempt from Kansas tax because the sellers of motor fuel under the jurisdiction of foreign governments are taxed by their respective governments to maintain the roads within that jurisdiction.
The judge determined that as a matter of law the Indian reservations are not included in the statutory term “territory.” The judge found the State’s motor fuel taxation method did not treat individual retailers on a reservation adjacent to a major highway any differently than any other retailer within the state of Kansas, and there is no discrimination because the plaintiffs are treated the same as any other retail gasoline outlet situated on a state highway in Kansas. In granting the State’s motion for summary judgment, the judge incorporated and included the authorities cited by the State in support of its motion.
This court assumed jurisdiction of Retailers’ appeal pursuant to K.S.A. 20-3018(c).
Exempt Territory
Retailers first argue that the district court erred in determining that the Potawatomi Indian reservation is not a territory exempt from taxation by K.S.A. 79-3408(d)(1). Interpretation of a statute is a question of law, and our review is unlimited. In re Tax Appeal of Boeing Co., 261 Kan. 508, Syl. ¶ 1, 930 P.2d 1366 (1997).
In support of their argument, Retailers point out that Kansas courts have previously determined that under the Organic Act and Act for Admission, the Potawatomi Indian reservation is excluded from the boundaries of Kansas and that the reservation falls within the plain meaning of the term “territory.” In addition, Retailers point out that other jurisdictions have deemed Indian Nations to be territories for purposes of statutory interpretation. See, e.g., Tracy v. Superior Court, 168 Ariz. 23, 33, 810 P.2d 1030 (1991); People v. Superior Court, 224 Cal. App. 3d 1405, 1410, 274 Cal. Rptr. 586 (1990).
Retailers rely primarily on In re Tax Exemption Application of Kaul, 261 Kan. 755, 769, 933 P.2d 717 (1997), where this court held that the Potawatomi Indian reservation is excluded from Kansas boundaries, stating:
“We conclude that interpreting provisions of the Kansas acts as they are commonly understood does not support the County’s position that all Indian land held in fee simple by an Indian is included within the state’s boundaries and subject to an in rem ad valorem tax. The plain meaning appears more reasonably to state that all Indian land was to be excluded from the boundaries of die state and not subject to taxation, unless it was specifically included by treaty or an act of Congress.”
Based on the language quoted above and the other authority cited, Retailers conclude that the Potawatomi reservation is clearly a territory outside the boundaries of Kansas.
The State, relying on the Organic Act and Act for Admission, claims that the term “territory” as used in the exemption statute is technical and does not include Indian reservations within the boundaries of this state. As authority for this argument, the State points to other cases where courts have found that Indian Nations are not territories. According to the State, the sections of Application of Kaul cited by Retailers are beneficial in determining the physical boundaries of the Indian reservations for purposes of determining exclusion from state jurisdiction. The State argues that the Organic Act provides that Kansas may not impose a state or local tax on the land and that the Act did not intend to define Indian land as a legal territory.
For authority that Indian reservations are within the boundaries of the state, the State cites The Kansas Indians, 72 U.S. (5 Wall.) 737, 18 L. Ed. 667 (1866). In The Kansas Indians, Johnson County’s taxation of the Shawnee Indian lands was upheld by this court. The Indians were granted review by the United States Supreme Court. In the Supreme Court, Kansas argued that the lands in question were not in one contiguous tract but were interspersed among the lands which had been sold to the United States government. The Supreme Court rejected state taxation, stating:
“There can be no question of State sovereignty in the case, as Kansas accepted her admission into die family of States on condition that the Indian rights should remain unimpaired and the general government at liberty to make any regulation respecting them, their lands, property or other rights, which it would have been competent to make if Kansas had not been admitted into the Union. The treaty of 2854 left the Shawnee people a united tribe, with a declaration of their dependence on the National government for protection and the vindication of their rights. . . . As long as the United States recognizes their national character they are under the protection of treaties and the laws of Congress, and their property is withdrawn from the operation of State laws.” (Emphasis added.) 72 U.S. (5 Wall.) at 756-7.
It is clear, therefore, that Indian reservations are separate and distinct nations inside the boundaries of the state of Kansas and that Indian rights are protected by treaty with the United States. The Kansas tax exemption statutes must be construed consistent with that conception of the boundaries of Indian reservations.
K.S.A. 79-3408 has a long history of legislative amendments. The amendments have resulted in a number of statutes, including K.S.A. 79-3408g, which address different aspects of the exemption. On May 28,1998, subsequent to oral argument, this court directed the parties to state their respective positions regarding the significance of K.S.A. 79-3408g(d)(2) to Retailers’ claim of exemption from tax on motor fuel. The parties were granted additional time to respond to this question.
K.S.A. 79-3408g(d)(2), which was enacted in 1995 when the legislature amended the exemption statute twice, provides that no tax on motor vehicle fuel is imposed on
“[t]he sale or delivery of motor-vehicle fuel or special fuel to the United States of America and such of its agencies as are now or hereafter exempt by law from liability to state taxation, except that this exemption shall not be allowed if the sale or delivery of motor-vehicle fuel or special fuel is to a retail dealer located on an Indian reservation in the state and such motor-vehicle fuel or special fuel is sold or delivered to a nonmember of such reservation.”
Retailers respond that K.S.A. 79-3408g(d)(2) is unconstitutional and creates a suspect class of Indians for which the State cannot articulate a compelling interest for the disparate treatment accorded otherwise identical Indian neighbors. They contend that the distinction violates 25 U.S.C. 479 (1994), which defines the term “Indian" as all persons of Indian descent who are members of any recognized Indian tribe. Retailers also assert that K.S.A. 79-3408(d)(2) and K.S.A. 79-3408g(d)(2) cannot be reconciled, and they urge this court to uphold the long-standing presumption in statutory construction that the legislature intends to repeal an existing statute when it enacts an amendment to that statute. Retailers contend that because the United States Supreme Court has a history and policy of leaving Indians free of state jurisdiction and control, construction of the statute must be consistent with that policy. Retailers conclude, therefore, that this court must find that they are exempt from Kansas taxation on motor fuel purchased for resale to Indians.
The State responds that the legislature attempted in 1995 to clarify that retailers located on Indian reservations are not exempt from paying fuel tax. The State notes that the 1998 Kansas Legislature repealed K.S.A. 79-3408g and amended K.S.A. 79-3408 to include the language similar to that previously found in K.S.A. 79-3408g(d)(2). The State argues that neither K.S.A. 79-3408g(d)(2) nor the 1998 amendments to K.S.A. 79-3408 are determinative of this case because the payer of motor fuel taxes is the distributor, not the retailer, and the distributor has no claim to an exemption in this case. The State asserts that K.S.A. 79-3410, the statute which designates the distributor as the remitter of the tax to the state director, is the key to resolving this case.
We disagree with the positions articulated by both the State and Retailers.
Legislative History of K.S.A. 79-3408
It is a fundamental rule of statutory construction, to which all other rules are subordinate, that the intent of the legislature governs if that intent can be ascertained. City of Wichita v. 200 South Broadway, 253 Kan. 434, 436, 855 P.2d 956 (1993); see State v. Riley, 259 Kan. 774, 776, 915 P.2d 774 (1996); State v. Gonzales, 255 Kan. 243, 248-49, 874 P.2d 612 (1994). When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. Hughes v. Inland Container Corp., 247 Kan. 407, 414, 799 P.2d 1011 (1990).
Where the parties claim the construction of a statute is uncertain, the court 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. State v. Gonzales, 255 Kan. 243, 249, 874 P.2d 612 (1994) (quoting Brown v. Keill, 224 Kan. 195, Syl. ¶ 3, 580 P.2d 867 [1978]).
K.S.A. 79-3408 was enacted in 1933. In the years since, when the legislature amended K.S.A. 79-3408 without simultaneously repealing the existing statute, new statutes were created with a letter designation after the statute number. See, e.g., K.S.A. 79-3408g.
K.S.A. 79-3408 and K.S.A. 79-3408g were amended twice in 1995. See L. 1995, ch. 242, § 5; ch. 262, § 30. The two statutes are identical with a few exceptions: The revisions in subsections (c) and (e) below are found in K.S.A. 79-3408 only, and the revisions in subsection (d)(2) are found in K.S.A. 79-3408g only.
“(a) A tax per gallon or fraction thereof, at the rate computed as prescribed in K.S.A. 79-34,141, and amendments thereto, is hereby imposed on the use, sale or delivery of all motor vehicle fuels or special fuels which are used, sold or delivered in this state for any purpose whatsoever. [79-3408; 79-3408g]
“(c) Such taxes shall be paid but once. Such tax shall be computed on all motor-vehicle fuels or special fuels received by each distributor, manufacturer, importer or retailer in this state and paid in the manner provided for herein, except that an allowance of 2.5% shall be made and deducted by the distributor to cover all ordinary losses in handling such motor-vehicle fuels or special fuels. No such allowance shall be made on airy motor-vehicle fuel or special fuel exported from the state or sold to the United States of America or any of its agencies or instrumentalities as are now or hereinafter exempt by law from liability to state taxation. No such allowance shall be made for any motor-vehicle fuel or special fuel sold or disposed of to a consumer in tank car, transport or pipeline lots. [79-3408]
“(d) No tax is hereby imposed upon or with respect to the following transactions:
(1) The sale or delivery of motor-vehicle fuel or special fuel for export from the state of Kansas to any other state or territory or to any foreign country. [79-3408; 79-3408g]
(2) The sale or delivery of motor-vehicle fuel or special fuel to the United States of America and such of its agencies as are now or hereafter exempt by law from liability to state taxation, except that this exemption shall not be allowed if the sale or delivery of motor-vehicle fuel or special fuel is to a retail dealer located on an Indian reservation in the state and such motor- vehicle fuel or special fuel is sold or delivered to a nonmember of such reservation. [79-3408g]
“(e) Each distributor, manufacturer, importer, exporter or retailer shall make full reports and furnish such further information as the director may require with reference to all transactions upon which no tax is to be paid. [79-3408]” (Emphasis added.)
It is clear that K.S.A. 79-3408 and K.S.A. 79-3408g were both in effect during the period relevant to this case.
"'"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.” [Citation omitted.]’ ” KPERS v. Reimer & Roger Assocs., Inc., 262 Kan. 635, 643, 941 P.2d 1321 (1997).
K.S.A. 79-3408(d)(1) andK.SA. 79-3408g(d)(1) exclude the imposition of the tax on any sale or delivery of motor fuel exported from Kansas to any other state or territory or to any foreign country. K.S.A. 79-3408g(d)(2) specifically excludes from the tax exemption the sale or delivery of motor fuel to a retail dealer located on an Indian reservation in this state where the motor fuel is sold or delivered to a nonmember of such reservation.
The district court correctly determined the exemption from taxation provided by K.S.A. 79-3408(d)(1) does not apply to Retailers because Indian reservations within the boundaries of the state are not included as territories outside the boundaries of Kansas.
Standing
The State asserted that Retailers have no standing to obtain an injunction because the incidence of taxation does not fall on them, i.e., they are not adversely affected by the statute.
In Sac and Fox Nation of Missouri v. LaFaver, 946 F. Supp. 884 (D. Kan. 1996), this very issue was raised by the KDR against three Indian tribes who operated retail gasoline stations on their reservations. In Sac and Fox, the federal district court noted that the Supreme Court had held that if the incidence of state tax imposed on a reservation does not fall on the Indians and the balance of federal, state, and tribal interests favors the State, and if federal law is not to the contrary, the State may impose its levy and may place on the tribe or tribal members “minimal burdens” in collecting the tax. 946 F. Supp. at 888 (citing Oklahoma Tax Comm’n v. Chickasaw Nation, 515 U.S. 450, 459, 132 L. Ed. 2d 400, 115 S. Ct. 2214 [1995]). The federal district judge concluded in Sac and Fox that although the statutes permit the distributors to pass the tax on to the retailer, there is no similar provision permitting the tax to be passed to the consumer by the retailer. The federal judge granted the tribes’ request for an injunction, finding “the Tribes have raised sufficient questions as to the incidence of the motor fuels tax so as to render the issue a fair ground for litigation.” 946 F. Supp. at 888. The 1998 Kansas Legislature amended K.S.A. 79-3408 to clarify the question of where the incidence of taxation falls. The legislature provided that unless otherwise specified in K.S.A. 79-3408c, the incidence of the tax falls on the distributor. L. 1998, ch. 96, § 2.
A critical statute in reaching our determination is K.S.A. 79-3409, which provides, in part:
"Every distributor paying such tax or being liable for the paijment shall be entitled to charge and collect such tax on motor-vehicle fuels or special fuels sold or delivered by such distributor, as a part of the selling price.” (Emphasis added.)
The statute clearly states that the distributor is liable for the payment of the tax, but the distributor may collect the tax from the retailer as part of the selling price of the motor fuel. Here, the distributors itemized the tax on their bills to Retailers as money due the State for the tax on the sale of motor fuel.
The legislature intended that distributors pay the tax and include the fuel tax in the sales price when delivering fuel to retailers or collect the fuel tax from the retailers at the time the distributors deliver motor fuel to the retailers. Therefore, Retailers are taxed and have standing in this case.
Restraining Order and Injunction
K.S.A. 60-901 et seq. set forth the procedure for obtaining an injunction.
“When it appears by a verified pleading or affidavit that a party is entitled to the relief demanded, and such relief or any part thereof consists in restraining the commission or continuance of some act, the commission or continuance of which during the litigation would produce injury to a party; or when during the litigation it appears that a party is doing or threatens or is about to do, or is procuring or suffering to be done, some act in violation of a party’s rights respecting the subject of the action, or tending to render the judgment ineffectual, an order may be granted to restrain such act.” K.S.A. 60-902.
An injunction is an order to do or refrain from doing a particular act. K.S.A. 60-901. While an injunction may be used to restrain certain conduct, there must be some indication that there is a protected threatened injury. U.S.D. No. 503 v. McKinney, 236 Kan. 224, Syl. ¶ 6, 689 P.2d 860 (1984). Retailers claim they are entitled to an injunction because the incidence of taxation on them is not permissible under well-established law governing taxation of Indians on reservations.
In Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450, issues similar to those raised in this case were addressed. The case sets out the law that applies when a state attempts to levy tax directly on Indian tribes and their members inside “Indian country” (reservations). In Chickasaw, Oklahoma imposed a gasoline tax on motor fuel sold by Chickasaw Nation-owned retail stores located on tribal land to tribal members and others. The Indian tribe commenced an action in the United States District Court seeking to prevent Oklahoma from enforcing several state taxes against the tribe and its members. Both sides filed motions for summary judgment. The district court found in favor of the State as to its imposition of motor fuel taxes on fuel sold by tribal retail stores on tribal land and in favor of the tribe as to the imposition of the State’s income tax on the wages of tribal members employed by the tribe but residing in the state outside Indian country. The United States Court of Appeals for the 10th Circuit ruled in favor of the tribe, holding that (1) the State could not tax fuel sold by tribal retail stores, because (a) the legal incidence of the fuel tax fell on the tribe, and (b) no congressional authorization for such tax was asserted by the State; and (2) a treaty between the United States and the tribe prohibited Oklahoma income tax on any tribal member employed by the tribe, regardless of residence.
The matter proceeded to the United States Supreme Court. There, the tribe contended that the incidence of the gasoline excise tax actually fell on the retailer rather than on distributors or consumers; therefore, the tax fell directly on the tribe as owner of the gasoline retail store. The tribe asserted that because taxation is an impermissible interference with tribal sovereignty, Oklahoma was without authority to tax tribes absent congressional approval. 515 U.S. at 455.
Oklahoma responded that Indian tribes and their members are generally immune rather than absolutely immune from state taxation. Oklahoma asserted that in some instances of state taxation, the courts are required to balance the interests of the state and the tribe. Oklahoma pointed out that the fuel was not produced or refined in Indian country and the tribe was selling much of its gasoline to nontribe members who were driving on Oklahoma state roads. Therefore, the State argued, the burden on Oklahoma was significant. Oklahoma also pointed out that “ ‘the levy does not reach any value generated by the Tribe on Indian land.'" 515 U.S. at 458.
The Supreme Court rejected Oklahoma’s argument that state and tribal interests should be balanced. The Court observed that when states have taxed Indian tribes or their members directly, the Court has used a more categorical approach.
The Court pointed out: “ ‘ “[Ajbsent cession of jurisdiction or other federal statues permitting it,” we have held, a State is without power to tax reservation lands and reservation Indians.’ ” 515 U.S. at 458 (quoting County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U.S. 251, 258, 116 L. Ed. 2d 687, 112 S. Ct. 683 [1992]). Under the categorical approach analysis, a tax is impermissible if its incidence falls on the tribe or tribe members. 515 U.S. at 458. Thus, a determination of the incidence of the tax was necessary.
The Chickasaw Court stated that the dispositive question in Indian tax cases is who bears the legal incidence of the tax. 515 U.S. at 458. If the legal incidence of an excise tax rests on a tribe or on tribal members for sales made inside Indian country, the tax cannot be enforced absent clear congressional authorization. But if the legal incidence of the tax rests on non-Indians, no categorical bar prevents enforcement of the tax. In other words, if the balance of federal, state, and tribal interests favors the State, and federal law is not to the contrary, the State may impose its levy, see Washing ton v. Confederated Tribes, 447 U.S. 134, 154-157, and may place on a tribe or tribal members “minimal burdens” in collecting the toll. Department of Taxation and Finance of N.Y. v. Milhelm Attea & Bros., 512 U.S. 61, 73, 129 L. Ed. 2d 52, 114 S. Ct. 2028 (1994).
The Chickasaw Court then turned to whether the incidence of taxation fell on the retailer or another party. Noting that the 10th Circuit had determined the incidence of tax fell on the retailer and considering the Supreme Court’s standard of review, the Court accepted the 10th Circuit’s determination. 515 U.S. at 461 (citing Haring v. Prosise, 462 U.S. 306, 314 n.8, 76 L. Ed. 2d 595, 103 S. Ct. 2368 [1983]).
The United States Supreme Court observed that the Oklahoma statute did not contain a “pass-through” provision that required distributors and retailers to pass the cost of the tax to the consumer. Thus, the statute did not contain language clearly articulating where the incidence of the tax fell. Therefore, the Court looked to the language of the statute and the method by which it was applied to determine its legal incidence. The Court reviewed the statute and concluded that the motor fuel tax was legally imposed on the retailer rather than on the distributor or the consumer. 515 U.S. at 461.
Not surprisingly, in this case both the State and Retailers claim reliance on Chickasaw.
The United States Congress, in admitting Kansas into the Union in 1861 through the Act for Admission of Kansas into the Union, January 29, 1861, ch. 20, § 1, 12 Stat. 126, viewed the Indian tribes of Kansas not as agents of the federal government, but as distinct entities, because, logically, no government would need to make a treaty with its own agents. See The Kansas Indians, 72 U.S. (5 Wall.) at 756-57.
Under the circumstances, there has been no showing by Retailers that payment of fuel tax to Kansas interferes with the self-government of a Kansas tribe or a Kansas tribal member or the tax impairs a specific right granted or reserved by federal law to the Kansas Indians. Here, the legal incidence of the tax on motor fuel rests on nontribal members and does not affect the Potawatomi Indian reservation within the state of Kansas or the members of that tribe. Retailers have no protected interest that is threatened by the State. Because there was no act that threatened or violated Retailers’ rights, the district court properly denied the request for an injunction and a restraining order.
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The opinion of the court was delivered by
LOCKETT, J.:
A county appeals the district court’s affirmance of an administrative board’s order granting an ad valorem tax exemption to a rent-to-own store’s inventory of rental furniture under K.S.A. 79-201m. The county claims (1) the administrative board and the district court had no jurisdiction to consider the constitutional tax exemption request under K.S.A. 79-213, and (2) K.S.A. 79-201m does not exempt merchandise under rent-to-own contracts from ad valorem tax.
On April 10, 1995, Action Rent to Own, Inc. (Action), filed an application for the merchants’ inventory tax exemption, pursuant to K.S.A. 1994 Supp. 79-213. The Sedgwick County Appraiser (Sedgwick County) opposed the exemption. Pursuant to the statute, the case was docketed with the State Board of Tax Appeals (BOTA) for an exemption determination. BOTA heard the exemption request on March 13, 1996. On March 28, 1996, BOTA filed an order granting the merchants’ inventory exemption to Action. BOTA denied reconsideration of the matter on April 25, 1996.
Sedgwick County petitioned the district court for judicial review. The district court affirmed the BOTA decision on May 23, 1997. Sedgwick County appealed to the Kansas Court of Appeals on June 18, 1997. The Board of County Commissioners of Harvey County and the Board of Leavenworth County Commissioners filed amici curiae briefs. The matter was transferred from the Court of Appeals to the Supreme Court pursuant to K.S.A. 20-3018(c).
JURISDICTION
Action, which claimed its rent-to-owm inventory was exempt under article 11, section 1(b) of the Kansas Constitution, filed for a merchants’ inventory tax exemption pursuant to K.S.A. 1994 Supp. 79-213. The statute provides:
“(a) Any property owner requesting an exemption from the payment of ad valorem property taxes assessed, or to be assessed, against their property shall be required to file an initial request for exemption, on forms approved by the board of tax appeals and provided by the county appraiser.
“(1) The provisions of this section shall not apply to . . . (6) merchants’ and manufacturers’ inventories exempted from ad valorem taxation by K. S .A. 79-201m and amendments thereto.”
BOTA and the district court determined the rent-to-own company’s inventory was exempt under K.S.A. 1994 Supp. 79-201m. Sedgwick County appealed, claiming BOTA was without subject matter jurisdiction to consider Action’s request for the merchants’ inventory exemption because Action filed its initial tax exemption request pursuant to K.S.A. 1994 Supp. 79-213, which is expressly inapplicable to the merchants’ inventory exemption. Sedgwick County asserts that K.S.A. 1994 Supp. 79-2005 states the procedure for a merchant to claim its inventory is exempt. Therefore, Sedgwick County contends, because Action failed to properly exhaust the administrative remedy by paying the tax under protest and filing for a refund, BOTA and the district court lacked jurisdiction to detennine if the property was exempt.
Action asserts that its application for tax exemption pursuant to K.S.A. 1994 Supp. 79-213 was appropriate. Action contends that where the taxpayer anticipates a challenge to the exemption by the county, the exemption application procedure set out in 79-213 is available to any taxpayer to obtain an initial exemption determination from BOTA. Action argues subsection (1) of the statute obviates the requirement of filing for an initial request for exemption where the taxpayer holds constitutionally exempt property.
A party challenging an administrative order must exhaust all administrative remedies before seeking judicial review of the agency action. Whether a party is required to or has failed to exhaust its administrative remedies is a question of law over which our review is plenary or unlimited. See Nora H. Ringler Revocable Family Trust v. Meyer Land and Cattle Co., 25 Kan. App. 2d 122, Syl. ¶ 6, 958 P.2d 1162 (1998). Where the district court lacks jurisdiction to enter an order, an appellate court does not acquire jurisdiction over the subject matter on appeal. Dinkel v. Graves Truck Line, Inc., 10 Kan. App. 2d 604, 604, 706 P.2d 470 (1985).
The tax exemption for merchants' inventory is a constitutional exemption provided in article 11, section 1(b) of the Kansas Constitution:
“All property used exclusively for state, county, municipal, literary, educational, scientific, religious, benevolent and charitable purposes, farm machinery and equipment, merchants’ and manufacturers’ inventories, other titan public utility inventories included in subclass (3) of class 2, livestock, and all household goods and personal effects not used for the production of income, shall be exempted from property taxation.” (Emphasis added.)
Did Action select an appropriate administrative procedure, i.e., K.S.A. 1994 Supp. 79-213, to claim a constitutional exemption for merchants’ inventory before BOTA. The question requires an interpretation of K.S.A. 1994 Supp. 79-213 and K.S.A. 1994 Supp. 79-2005. Interpretation of a statute is a question of law, and this court’s review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
To date, the tax exemption cases in Kansas concerning administrative remedies largely focus on the requirement of exhaustion of administrative remedies prior to filing a case in district court. See, e.g., Dillon Stores v. Board of Sedgwick County Comm’rs, 259 Kan. 295, 912 P.2d .170 (1996); Boeing Co. v. Oaklawn Improvement Dist., 255 Kan. 848, 877 P.2d 967 (1994); J. Enterprises, Inc. v. Board of Harvey County Comm’rs, 253 Kan. 552, 857 P.2d 666 (1993); Tri-County Public Airport Authority v. Board of Morris County Comm’rs, 233 Kan. 960, 666 P.2d 698 (1983). The administrative procedure utilized by Action, applying for exemption pursuant to K.S.A. 1994 Supp. 79-213, included a hearing before BOTA, a determination of the issue, and an exhaustion of administrative remedies; therefore, there is no contention that the district court lacked jurisdiction because BOTA had not considered the issue.
In J. Enterprises, this court discussed the administrative procedures available to a rent-to-own taxpayer. We held that the district court lacked jurisdiction over the case because the taxpayer failed to bring the issue before BOTA prior to. filing a case in district court. 253 Kan. at 566. In the analysis, the court quoted at length from Tri-County, an earlier Kansas tax exemption case where the taxpayer brought a mandamus action against the county to determine the tax-exempt status of certain real property owned by the taxpayer. The Tri-County court traced the historical development of the statutory remedies available to a taxpayer seeking an exemption from ad valorem taxes, K.S.A. 1982 Supp. 79-2005, K.S.A. 74-2426 (Ensley 1980), and K.S.A. 1982 Supp. 79-213.
Relying on Tri-County, the court in J. Enterprises concluded that the rent-to-own taxpayer seeking the merchants’ inventory exemption was provided with a full and adequate administrative remedy under the provisions of K.S.A. 1992 Supp. 79-2005, K.S.A. 74-2426, and K.S.A. 1992 Supp. 79-213. The J. Enterprises court found that because the taxpayer failed to avail itself of the remedy provided in these statutes, the district court and the appellate court lacked jurisdiction. 253 Kan. at 565.
However, J. Enterprises failed to recognize that K.S.A. 1982 Supp. 79-213 (the statute applicable in Tri-County) and K.S.A. 1992 Supp. 79-213 (the statute in effect at the time of the taxpayer’s application for exemption in J. Enterprises) were significantly different in that the 1992 statute included subsection (1) providing that the statute was inapplicable to certain exemptions, including the merchants’ inventory exemption. Therefore, J. Enterprises did not specifically determine that K.S.A. 1994 Supp. 79-213 provided an administrative remedy for a taxpayer seeking the merchants’ inventory exemption.
Under the circumstances it is necessary to review the history of that statute. In 1984 the legislature changed the mechanics of claiming property tax exemptions. A brief survey of the legislative history of the exemption statutes was made by McKenzie and Ratzlaff in the Fall 1984 University of Kansas Law Review. In the article they noted:
“Prior to 1984, [K.S.A.] 79-210 and [K.S.A.] 79-213 established a system that required taxpayers in most instances to file a claim of exemption and to refile the claim annually. The law did not require owners of certain exempt property including household goods, cemetery lots, and certain government property to reassert such exemption after initial approval.
“Amendments made in 1984 to [K.S.A.] 79-210 and [K.S.A.] 79-213 relaxed the refiling requirement, so that taxpayers now must annually renew their claim of exemption only for ‘property which is exempt from the payment of property taxes under the laws of the state of Kansas for a specified period of years.’ [Since the amendment, t]he annual refiling requirement [applies] only in connection with exemptions such as the ten-year exemption for property financed by industrial revenue bonds.
“The 1984 legislature also amended [K.S.A.] 79-213, which requires taxpayers claiming an exemption to file a claim for such exemption. Section 79-213(n), added in 1984, states, ‘The provisions of tins section shall not apply to farm machinery and equipment exempted from ad valorem taxation by K.S.A. 1983 Supp. 79-201j, and amendments thereto.’ This exemption extends the tax break given to farmers by eliminating their need to file a claim for the property tax exemption enacted in 1982.” McKenzie & Ratzlaff, Survey of Kansas Law: Taxation, 33 Kan. L. Rev. 71, 74 (1984).
Considering the legislative history of K.S.A. 1994 Supp. 79-213, we conclude that subsection (1) merely obviates the requirement of filing for an initial exemption determination regarding property exempt under article 11, section 1(b) of the Kansas Constitution. The statute sets out the procedure for obtaining an initial exemption determination where the taxpayer is uncertain whether the property qualifies for the exemption. The statute also expressly requires the owner of property claimed exempt pursuant to the provisions of article 11, section 13 of the Kansas Constitution, i.e., property exempt for economic development purposes, to file an initial request for exemption. See K.S.A. 79-213(m).
PVD 92-026
Sedgwick County contends that the BOTA decision granting a merchants’ tax exemption to Action must be reversed because it violates the express provisions of PVD Directive #92-026. Directive #92-026 provides:
“‘Rent to own’ property such as furniture and television sets [is] inventory and [is] exempt from property taxation by the Kansas Constitution (art. 11, § 1) and by K.S.A. 79-1439, provided:
“1. such taxpayer is a ‘merchant’ as defined by K.S.A. 1991 Supp. 79-201m;
“2. such inventory was purchased primarily for resale; and
“3. such inventory is not depreciated on the merchant’s federal income tax return.
“Other rental items, such as video tapes, tools and equipment purchased for rental only and not purchased primarily for resale, are not inventory and are taxable.”
Directives of the Director of Property Valuation are authorized by K.S.A. 79-505. The Kansas Attorney General has issued an opinion regarding the effect of tax directives. Opinions issued by the Attorney General, though not binding on the court, are persuasive. See Moore v. City of Lawrence, 232 Kan. 353, 362, 654 P.2d 445 (1982); Greenwood v. Estes, Savings and Loan Commissioner, 210 Kan. 655, 661, 504 P.2d 206 (1972). The Attorney General opinion concludes that directives interpreting or implementing legislation meet all the criteria of a rule or regulation. Att’y Gen. Op. No. 94-120. Administrative regulations have the force and effect of law. K.S.A. 11-425.
Administrative regulations are presumed to be valid, and one who attacks them has the burden of showing their invalidity. However, rules or regulations of an administrative agency, to be valid, must be within the statutory authority conferred upon the agency. Those rules or regulations that go beyond the authority authorized, which violate the statute or are inconsistent with the statutory powers of the agency have been found void. Administrative rules and regulations, to be valid, must be appropriate, reasonable, and not inconsistent with the law. Pemco, Inc. v. Kansas Dept. of Revenue, 258 Kan. 717, 720, 907 P.2d 863 (1995).
PVD 92-026 is an appraiser directive issued for the purpose of prescribing appropriate standards for the performance of appraisals in connection with ad valorem taxation. K.S.A. 79-505. PVD 92-026 does not bind BOTA or this court. If PVD 92-026 is inconsistent with the law, it is void and cannot be a basis for reversing a BOTA decision.
EXEMPTION
BOTA found that Action leases household goods and other items of personal property to its customers for weekly or monthly rental terms. The renewable lease agreements between Action and its customers are called “rental purchase agreements.” At the end of the initial weekly or monthly rental period, the customer may renew the agreement for another term. Full payment of the rental fee is required at the beginning of each term. The rental purchase agreement allows a customer to acquire ownership for an item by renewing the lease for a specified number of consecutive rental periods. No additional payment is required at the end of the rental period. Title passes to the renter at the time of the final rental payment. Items may also be purchased for cash on an immediate sale basis. BOTA determined that the vast majority of Action’s business is conducted through rental purchase contracts.
Sedgwick County argued before BOTA that Action did not qualify for the merchants’ inventory exemption of K.S.A. 79-201m because (1) Action depreciated the subject property on its income tax reports; (2) Action’s inventory was not held primarily for sale; (3) the rental of the property was an intervening use, rather than an incidental use, of the property; and (4) this court’s finding in Colorado Interstate Gas Co. v. Board of Morton County Comm’rs, 247 Kan. 654, 657, 802 P.2d 584 (1990), that the legislature intended to define Kansas tax terms consistent with federal income tax principles and terms controls the definition of inventory in this case.
BOTA applied K.S.A. 79-201m to the facts and found that Action was a merchant. It determined Action’s rental transactions were, in substance, financing agreements for the sale of property, and the property Action rented to purchasers was inventory as defined by K.S.A. 79-201m. BOTA concluded that Action’s rent-to-own assets were eligible for the merchants’ inventory exemption. The district court found that BOTA based its decision on facts which were supported by substantial competent evidence and affirmed BOTA.
Our question involves an application of the facts to the law. Because, as the district court found, BOTA’s decision was based on facts that were supported by substantial competent evidence, the legal issues are predominant. Of primary importance is an interpretation of K.S.A. 79-201m, concerning the definition of merchants’ inventory. Interpretation of a statute is a question of law, and this court’s review is unlimited. Hamilton, 263 Kan. at 879.
K.S.A. 79-201m is a tax exemption statute. BOTA is suited for resolving tax exemption claims, which, in turn, involve statutory interpretation. J. Enterprises, 253 Kan. 552, Syl. ¶ 4. Several basic principles govern review of BOTA decisions concerning the availability of tax exemptions:
“Taxation is the rule, and exemption from taxation the exception under the Kansas Constitution and statutes. [Citation omitted.] Constitutional and statutory provisions exempting property from taxation are to be strictly construed against the one claiming exemption, and all doubts are to be resolved against exemption. [Citation omitted.] Where the language of a statute, in particular, is relied upon as creating an exemption from taxation, it must be strictly construed against the party claiming the exemption .... [Citation omitted.] Strict construction, however, does not warrant unreasonable construction. [Citation omitted.]” In re Tax Exemption Application of City of Wichita, 255 Kan. 838, 842, 877 P.2d 437 (1994).
Tax exemption statutes are to be construed strictly in favor of imposing the tax and against allowing the exemption for one who does not clearly qualify. In re Tax Appeal of Harbour Brothers Constr. Co., 256 Kan. 216, 223, 883 P.2d 1194 (1994).
Sedgwick County contends that K.S.A. 79-201m is ambiguous, requiring inquiry into the legislature’s intent. We agree that in the context of rent-to-own taxpayers and their rent-to-own assets, the statute does not unambiguously state the law. Therefore, we 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. See Brown v. U.S.D. No. 333, 261 Kan. 134, 142, 928 P.2d 57 (1996).
K.S.A. 79-201m was amended in 1989 by Senate Bill 42 (SB 42). SB 42, as amended by Senate Committee, was approved on April 10, 1989. At the 1989 Special Session of the legislature, the approved bill was further amended by House Bill 2004, which ultimately became law on December 14, 1989. L. 1989, ch. 1, § 1. Senate Bill 42 provided, in pertinent part:
“To die extent herein specified, merchants’ and manufacturers’ inventory shall be and is hereby exempt from all property or ad valorem taxes levied under die laws of the state of Kansas.
“As used in this section:
“(a) ‘Merchant’ means and includes every person, company or corporation who shall own or hold, subject to their control, any tangible personal property within this state which shall have been purchased primarily for resale without modification er change in form er substance, and without any intervening use in the ordinary course of business without modification or change inform or substance, and without any intervening use, except that, an incidental use, including but not limited to the rental or lease of any such property, shall not be deemed to be an intervening use.
“(c) ‘inventory’ means and include those items of tangible personal property that: (1) Are primarily held for sale in the ordinary course of business (finished goods); (2) are in process of production for such sale (work in process); or (3) are to be consumed either directly or indirectly in the production of finished goods (raw materials and supplies). Assets A capital asset subject to depreciation or cost recovery accounting for federal income tax purposes shall net fee classified as inventory.- A depreciable asset tiiat is retired from regular use by its owner and held for sale or as standby or as surplus equipment by such owner shall not be classified as inventory.” L. 1989, ch. 289, § 1.
We find at this point that the finding in Colorado Interstate Gas Co., 247 Kan. 654, regarding the intended confirmation of Kansas tax terms with federal income tax principles and terms, does not apply to this case because it interpreted a prior statute.
Both parties quote the Minutes of the 1989 Senate Committee on Assessment and Taxation to support their respective positions regarding the legislature’s intention to exclude or include rent-to-own merchants in the definition of “merchant” and rent-to-own assets in the definition of “inventoiy.” The pertinent parts of the committee’s discussion of SB 42 are set out below:
“Senator Kerr said we have had quite a bit of testimony, committee discussion, and conversation on SB 42; we also had Don Hayward do some suggested amendments to the bill. The problem that was brought to us was the case of large equipment that rented out on demonstration, and therefore was no longer inventoiy. Don Hayward has prepared a balloon to take care of that situation, narrowly drawn, so not to open up a loophole.
“The Senator asked Don Hayward if he would read and explain that part to the committee.
"Don Hayward said they went into the definition of ‘merchant’ and added back the original language which was that tangible personal property has to be purchased for resale in ordinary course of business, without modification or change in fonn or substance, and without any intervening use. This is the language that makes an exception to the requirement ‘without any intervening use’ except that, an incidental use, including but not limited to the rental or lease of any such property shall not be deemed to be an intervening use.
“[I]n lines 44 to 48, we cleaned up and made certain the type of assets that were not to be included in inventory. These are capital assests [sic] that are subject to depreciation or cost recovery accounting for Federal Income Tax purposes, that are retired from regular use by it’s [sic] owner and held for sale or is standby surplus equipment, and are not to be classified as inventoiy. . . .
“Senator Kerr said the idea is not to violate the status of inventory by having the incidental use of renting or leasing allowed. Therefore the idea of this language is not to allow the regular rental business, such as video or car renting, to get the exempt status.” Minutes of the Senate Committee on Assessment and Taxation (March 2, 1989).
Clearly, the legislature stated that the purpose when it amended K.S.A. 79-20lm was to protect the inventoiy exemption of large equipment businesses that temporarily rent out their equipment for demonstration purposes prior to sale. At the same time, the legislature sought to construct the statute as to not exempt the inventory of rental businesses, such as video rental stores and car rental agencies. However, there is nothing in the committee minutes to suggest the legislature considered the effect of the amendment as to rent-to-own businesses’ inventory.
Action contends that even if the 1989 amendments to K.S.A. 79-201m were not intended to address the specific situation of rent-to-own businesses, the legislature’s deletion of the general provision that “[a]ssets [subject to depreciation] shall not be classified as inventoiy” indicates the legislature’s intention to allow depreciable assets to be classified as inventory.
When the legislature revises an existing law, it is presumed that the legislature intended to change the law as it existed prior to the amendment. State v. Spain, 263 Kan. 708, 711, 953 P.2d 1004 (1998). However, this presumption may be strong or weak according to the circumstances, and may be wanting altogether in a particular case. Board, of Education of U.S.D. 512 v. Vic Regnier Builders, Inc., 231 Kan. 731, 736, 648 P.2d 1143 (1982).
The 1989 Senate Committee on Assessment and Taxation minutes indicate that the committee “cleaned up” the language regarding depreciable assets. The committee minutes clearly indicate that the legislature did not intend to expand the exemption to include assets that are rented in the ordinary course of business. K.S.A. 79-20lm states that inventoiy includes tangible personal property primarily held for sale in the ordinary course of business.
Under K.S.A. 79-201m, a capital asset subject to depreciation or cost recoveiy accounting for federal income tax purposes that is retired from regular use by its owner and held for sale or as standby or surplus equipment by such owner shall not be classified as inventory. On the other hand, a capital asset subject to depreciation or cost recovery accounting for federal income taxes that is held primarily for sale to customers in the ordinary course of business may be classified as inventory.
The legislature’s deletion of the provision that “[ajssets [subject to depreciation] shall not be classified as inventory” allows some capital assets to qualify for the inventoiy exemption. The fact that depreciable assets are capital assets no longer precludes their classification as inventoiy.
There is substantial competent evidence to support BOTA’s determination that Action’s rent-to-own inventory is statutorily exempt from taxation. Therefore, Action may take advantage of the merchants’ inventory exemption.
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The opinion of the court was delivered by
Lockett, J.:
The State appeals from the district judge’s dismissal of a criminal complaint which charged the defendant with one count each of sale of cocaine and sale of marijuana and two counts each of conspiracy to sell cocaine. We reverse the trial court regarding the counts of sale of cocaine and marijuana and remand the case with directions to reinstate the charges. We affirm the trial court’s dismissal of the conspiracy counts.
At the preliminary examination, three witnesses testified for the State: Detectives Larry Watson and Candice McCarthy of the Garden City police department and a police informant, Jose Morales. A summary of their testimony follows. In June 1997, the Garden City police department made arrangements with Jose Morales to conduct controlled drug buys on three separate occasions from the defendant, Tim Hams. Morales agreed to participate in the drug buy in exchange for having a pending prosecution dropped regarding a charge of possession of marijuana.
On June 5, 1997, Detective Watson met with Morales and had Morales place a call to Harris regarding a marijuana buy. Watson listened to the conversation as the arrangements were made on a cellular telephone that had a small recorder attached.
After the telephone call, Morales told Watson that he was to go to an address in a trailer park in Garden City to make the buy. Watson provided Morales with money for the buy and a microcassette recorder for recording the transaction. Detective McCarthy drove Morales to the residence. Detective Watson followed in his car. Watson observed the back door of the residence, while McCarthy watched the front door. Morales was inside the residence for only a few minutes.
When Morales returned to McCarthy’s car, he handed McCarthy the marijuana he had purchased in the residence. Morales told the detectives that after obtaining the marijuana from Harris, he had asked Harris if Harris had any cocaine for sale. Harris had said he did not have any cocaine at that time but he could have some later in the day.
On the afternoon of the same day, Morales again used the cellular phone with the recorder attached to call Harris and arrange a drug buy. Watson heard Morales ask, “Do you have it?” Satisfied by what he heard of Morales’ telephone conversation, Watson directed Morales to set up a cocaine purchase.
As before, McCarthy rode with Morales to the residence where Morales had earlier purchased marijuana, and Watson followed behind. Morales was again provided with a small tape recorder. Morales was in the residence for approximately 1 minute. He returned from the residence with a substance that field tested positive as cocaine. Morales told the officers that Harris had been asleep on the couch and that Harris’ wife had sold him the cocaine.
On June 16, 1997, following the same telephone procedure, Morales arranged to make a second cocaine buy from Harris. Watson and McCarthy conducted surveillance while Morales was in the residence. Approximately 10 minutes after Morales entered the residence, a man in a white vehicle arrived in the area and got out of his car. Five minutes later, Morales exited the residence and returned to his personal vehicle. Morales told McCarthy that a “Chinese guy with a shaved head” had brought the cocaine to the residence and he had purchased the cocaine from the man while Harris watched. The cocaine was field tested and logged into evidence.
A complaint was filed on July 29, 1997, charging Harris with one count each of sale of cocaine and sale of marijuana, two counts of conspiracy to sell cocaine, and two counts of no drug tax stamp. A preliminary examination was held October 2, 1997. The no drug tax stamp charges in the complaint were dismissed by the State prior to the hearing due to an insufficient quantity of drugs.
After the State had presented its evidence, the judge stated:
“[B]asically, all [the State has] is a conclusion that’s incapable of being tested. ... I have testimony from the detective that Mr. Morales called Mr. Harris. I don’t know how it was established that that was Mr. Harris on the other end of the phone. There is no foundation for it. I thought, well, perhaps they got that from Mr. Morales, but Mr. Morales didn’t testify as to any of that. And then I thought, well, perhaps from prior contacts. Well, I can’t say everybody knows that Tim Harris has prior convictions because that doesn’t make any difference, and that wasn’t [presented]. Then I thought, well, maybe Mr. Harris ID’d himself on the phone and a combination of all these things, that’s how we know that Mr. Harris was on the other line, just other than an officer sitting there saying, Mr. H arris was on the other end of the line, and that officer wasn’t really even involved in the conversation. I don’t know the how. I don’t know the foundation for it, it’s totally unsupported evidence. And I’m not going to get in a situation where I hear officers say, either actual or implied, trust me, because I just don’t do that. So I don’t even know why or have any basis for . . . probable cause to believe that Mr. Harris made any of the original plans. . . . Mr. Harris didn’t handle any of the drugs, as far as I know. He didn’t handle any of the money, as far as I know. And in one of these buys, he was asleep somewhere else in the house. Just because something is taking place in somebody’s house does not make them guilty of the charge. And also just because . . . something takes place in somebody’s house, does not make it a conspiracy. There has to be evidence of prior events. I don’t know what prior events took place. And I’m not going to just simply, by supposition, pull them out of the air and supply them. I’ve got to have something to hang it on.”
The district judge dismissed all the counts, finding that the State’s evidence established probable cause for finding that crimes had been committed, but failed to establish probable cause that Harris had committed the crimes.
The State appeals pursuant to K.S.A. 22-3602(b)(1), which authorizes an appeal to the Kansas Supreme Court by the prosecution from an order of the district court dismissing a complaint. In a prosecutorial appeal from a dismissal, instead of one magistrate judge conducting a preliminary hearing, seven Supreme Court justices conduct a preliminary hearing on the record and issue an opinion. If our finding is adverse to the State, the State is free to ignore our opinion if it can produce additional evidence at a subsequent hearing before a magistrate judge. State v. Huser, 265 Kan. 228, 231-32, 959 P.2d 908 (1998).
Standard of Review
Harris argues that principles of fundamental fairness demand that this court abandon its longstanding determination to use a de novo standard in reviewing State prosecutorial appeals. Harris contends that when considering the sufficiency of the evidence this court should view the evidence in the light most favorable to the party prevailing below, see, e.g., State v. Smallwood, 264 Kan. 69, 88, 955 P.2d 1209 (1998), and not reweigh the evidence or pass on the credibility of witnesses, see, e.g., State v. Wonders, 263 Kan. 582, 590, 952 P.2d 1351 (1998).
In the recent case of State v. Phelps, 266 Kan. 185, 967 P.2d 304 (1998), this court discussed the standard of review applicable to State prosecutorial appeals. The defendant in Phelps argued that this court should review prosecutorial appeals under the standard of review applicable to negative findings. See, e.g., Brown v. Kansas Parole Board, 262 Kan. 903, 910, 943 P.2d 1240 (1997) (negative finding that a party did not cariy its requisite burden of proof will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice). The Phelps court reaffirmed the standard stated in State v. Bell, 259 Kan. 131, Syl. ¶ 5, 910 P.2d 205 (1996), that an appellate court conducts ‘“a de novo review of the evidence when considering the trial court’s [preliminary hearing] probable cause finding.’ [Citations omitted.]” Phelps, 266 Kan. at 192. To explain the de novo standard as it applies in prosecutorial appeals, the Phelps court quoted State v. Farmer, 259 Kan. 157, 161, 909 P.2d 1154 (1996):
“ ‘The function of a judge or magistrate at a preliminary hearing is not to determine the wisdom of the prosecuting attorney’s decision to file and pursue charges against the defendant. Nor is it the function of the judge to conclude that there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. [Citation omitted.] The sole question before the judge or magistrate at the conclusion of a preliminary hearing is the same question an appellate court is faced with upon de novo review: whether the evidence is sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. [Citation omitted.]’ ” Phelps, 266 Kan. at 193.
The standard of review as stated in Phelps applies.
Dismissal of Counts
The State contends that the district judge erred in failing to find probable cause because the evidence it presented to support each element of the crimes charged was not contradicted and because viewing the evidence presented in a light most favorable to the State, the evidence supports a finding of probable cause to believe that each of the crimes was committed by the defendant.
Did the State’s case fail because it lacked evidence sufficient to establish that Harris sold drugs to Morales, counts 1 and 2 of the complaint, and that Harris had entered into a conspiracy to sell cocaine with his wife, count 3, and the Chinese man, count 4? No, as to counts 1 and 2; yes, as to counts 3 and 4.
The purpose of a preliminary examination is to determine if it appears that a felony has been committed and if there is probable cause to believe that the person charged committed it. K.S.A. 22-2202(16). It is important to note that the preliminary examination is not a trial of the defendant’s guilt; it is merely an inquiry as to whether the defendant should be held for trial. State v. Hood, 255 Kan. 228, 230, 873 P.2d 1355 (1994). A discharge from custody at the end of a preliminary examination is not a bar to another prosecution on the same charges. State v. Puckett, 240 Kan. 393, Syl. ¶ 6, 729 P.2d 458 (1986).
The function of a judge or magistrate at a preliminary hearing is not to determine the wisdom of the prosecuting attorney’s decision to file and pursue charges against the defendant. Nor is it the function of the judge to conclude that there should be no prosecution because the possibility of a conviction may be remote or virtually nonexistent. The sole question before the judge or magistrate at the conclusion of a preliminary hearing is the same question an appellate court is faced with upon de novo review: whether the evidence is sufficient to cause a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of the accused’s guilt. State v. Farmer, 259 Kan. 157, 161, 909 P.2d 1154 (1996).
We have set forth the evidence adduced at the preliminary hearing. We agree with the trial court that it appears that the crimes of sale of marijuana and sale of cocaine have been committed. Based on the testimony of the three State’s witnesses, we conclude that there is probable cause to believe that Harris committed the crimes of sale of marijuana and sale of cocaine.
As to the two charges of conspiracy to commit the sale of drugs, we find that the State’s evidence failed to establish the necessary elements of conspiracy. K.S.A. 21-3302 provides, in relevant part:
“(a) A conspiracy is an agreement with another person to commit a crime or to assist in committing a crime. No person may be convicted of a conspiracy unless an overt act in furtherance of such conspiracy is alleged and proved to have been committed by such person or by a co-conspirator.”
Although the State’s evidence establishes illegal sales, there was no evidence from which a person of ordinary prudence and caution could infer agreements between Harris and his wife and between Harris and the oriental drug seller. Under the circumstances, the conspiracy counts were properly dismissed by the trial court.
The district judge’s dismissal of counts 1 and 2 of the complaint are reversed, and we order the defendant bound over to the district judge having jurisdiction to conduct the arraignment pursuant to K.S.A. 22-3205. ' | [
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The opinion of the court was delivered by
Larson, J.:
In this workers compensation appeal, Harry Burton questions whether apportionment of an award is required under K.S.A. 44-5a01(d) when both occupational and nonoccupational factors combine to cause disability.
The Workers Compensation Board (Board) affirmed a finding that Burton was permanently and totally disabled from adult-onset asthma and bronchitis caused by both smoking and dirt, dust, and chemical fumes at his place of employment, but upheld the administrative law judge’s (ALJ) determination that Burton was only entitled to 25% of the disability award under the apportionment provisions of the occupational disease statute.
In an unpublished split decision filed February 6, 1998, the Court of Appeals reversed the Board, finding the apportionment statute did not apply under the facts of this case.
We granted the employer’s, Rockwell International’s, petition for review, which contended the Court of Appeals’ majority had not distinguished our prior contrary opinion of Weimer v. Sander Tank Co., 184 Kan. 422, 337 P.2d 672 (1959).
The Court of Appeals’ decision set forth the facts, which we quote from its opinion:
“Burton worked for Rockwell at a steel foundry from 1955 until January 7, 1991. During his employment, Burton was exposed to dust, dirt, and other chemical fumes. Burton was also an avid smoker, smoking approximately one pack of unfiltered cigarettes a day for over 30 years until quitting in 1991.
“In the first 7 years of his employment, Burton worked as a chipper/grinder at the facility. Burton’s job entailed shaving sharp edges off iron castings by using an air hammer with a chisel and then smoothing the castings with a grinder. At the end of a typical workday, Burton’s clothing would be covered with black dirt and dust, and he would be so congested from breathing in the environment that he could produce a black sputum.
“Following his job as a chipper/grinder, Bruton worked for the next 20 years primarily as a welder. Burton’s duties entailed welding cavities in metal and putting various metal pieces together. Burton later worked on a government project in which he checked castings to determine if they complied with the appropriate standards. While working on this project, Burton was also assigned to work at the shake-out table. The shake-out table is a vibrating table where debris from the floor is sorted to find metal pieces that could be reused. Burton stated that the environment around the shake-out table was particularly dirty and, by the end of the day at this position, he would be congested.
“When Burton started working at the foundry, Rockwell did not provide protective breathing devices to the employees. In the 1960’s, Rockwell offered cotton dust masks, which could be changed throughout a day as the mask collected dust and dirt. Burton was required to wear a mask when welding and was encouraged to wear one when performing other tasks at the foundry. However, Burton said the masks did not completely prevent him from breathing dust because black dirt continued to accumulate in his breathing passages.
“In the 1970’s, automatic air helmets were provided to the welders as a substitute for the cotton dust masks. Burton acknowledged that the air helmets helped “quite a bit” but stated that he still noticed the dust.
“During the final years of his employment, Burton became more congested and developed problems breathing. In November 1990, Burton left work and was treated by his primary treating physician, Dr. James Rider, for bronchial pneumonia. In January 1991, Dr. Rider gave Burton a return to work slip with a restriction not to work in a dusty or dirty environment. When Burton returned to the foundry, he was assigned to work at the shake-out table. He tried to work for several hours, but the dust and fumes made him sick and he was forced to leave. Burton briefly attempted to return to work in February 1992, but he again had problems breathing in the work environment and was sent home.
“Burton was examined by two pulmonary disease specialists. Dr. Gerald Kerby first examined Burton in 1991 at Rockwell’s request. Dr. Kerby diagnosed Burton as suffering from adult-onset asthma superimposed on some mild obstructive airways disease. In March 1992, Dr. Kerby re-examined Burton and found that he continued to suffer from asthma, which was exacerbated by his exposure to dust and other irritants at work.
“Dr. Kerby could not identify the cause of the asthma but stated that he did not believe that Burton’s occupation was related to causation because none of the substances Bruton had been exposed to at work was a sensitizing agent which causes asthma. Dr. Kerby believed the exposure to the dust and other irritants associated with the foundry transiently worsened his asthma and might have had a small effect on its severity. Dr. Kerby testified that these occupational andnonoccupational factors combined to give Burton a functional pulmonary impairment of 30 percent of the whole body. The doctor stated that 5 to 10 percent of the 30 percent was possibly attributed to occupational factors, and the remaining percentage was possibly attributed to nonoccupational factors.
“Burton was next examined by Dr. Robert Durie in September 1991. Dr. Durie agreed with Dr. Kerby that Burton had a significant airways disease and asthma which were severely exacerbated when he returned to work after his pneumonia. Dr. Durie diagnosed Burton as suffering from a chronic obstructive pulmonary disease, which includes chronic bronchitis and asthma. Dr. Durie opined that Burton’s asthma and bronchitis were- due to his cigarette smoking and his exposure to noxious fumes and smoke at his work environment. However, Dr. Durie was unable to offer an opinion on which of these factors was more significant in developing the disease.
“All of the doctors who examined Burton agreed that he would be unable to work at the steel foundry because of the exposure to dust, chemical, fumes, and extreme temperature. Dr. Rider also stated that in his opinion, Burton is permanently and totally disabled from engaging in any type of occupation.”
After Burton filed his claim and evidence was presented, the ALJ, in deciding to apportion the total disability award, ruled:
“Claimant makes the argument that apportionment is not appropriate based on the circumstances of this case because there is no evidence that claimant’s occupational disease was aggravated by the non-occupational factors to the point of a disability or that a disability from the non-occupational factors was aggravated by the occupational disease. In other words, claimant contends that there is no evidence that his smoking or other non-occupational factors contributed to his disease to the point of a disability in the absence of the occupational factors. While there is evidence that the occupational and non-occupational factors have merely combined to produce claimant’s disability. Dr. Kerby’s written reports clearly state that claimant has had exacerbations and aggravations of his idiopathic adult onset asthma by exposure to the dust and fumes at the foundry which has made it difficult to impossible for claimant to consistently work in that environment.
“It appears that the intent of the legislature was to compensate one for only the extent of disablement caused by an occupational disease if the respective causative factors can be determined and applied as a percentage. The word ‘disability’ in this section of the statute appears to refer to the entire disease process contracted by a claimant, part of which is made up of non-occupational factors. Read in the entire context of the Act, this is the only rational meaning that could be given to this particular subsection consistent with the apparent intent that the legislature had in mind in limiting an employer’s liability to only those matters or factors for which it should be at risk, in this case dust and fumes generated by the plant itself.”
When review of the ALJ’s decision was requested by both parties, the Board upheld the ALJ’s ruling that disability refers to the entire disease process even though the apportionment statute refers to causes of a disability, and refused to define disability solely in terms of its effect on Burton’s employment. The Board found apportionment was appropriate because the causes of the disease are also causes of the disability.
The Court of Appeals, in reversing the finding that the apportionment statute applied, adopted the reasoning of Fry’s Food Stores v. Industrial Com’n, 177 Ariz. 264, 268, 866 P.2d 1350 (1994), which held that the Arizona apportionment statute “requires apportionment of disabilities, not apportionment of the different causes of a single disability.”
The Court of Appeals emphasized the difference between impairment and disability, noting that the former refers to a medical loss, while the latter means a loss of earning capacity. The majority of the panel concluded, based upon the findings of the ALJ, that Burton’s disability did not occur until after he was exposed to the dust and fumes at his work environment, despite the fact that he may have suffered a previous impairment.
Judge Lewis dissented, arguing that the majority decision creates a retirement plan for those who ruin their health by smoking. The dissent would have followed Jenkins v. Halstead Industries, 17 Ark. App. 197, 706 S.W.2d 191 (1986), on the issue of apportionment.
Interestingly, the issue we do not consider because it is not before us is the decision of the Board not to apportion future medical benefits despite Rockwell’s argument below that these benefits are “compensation” as contemplated in K.S.A. 44-5a01(d). The Court of Appeals’ decision that Rockwell’s cross-appeal was untimely was not raised in a petition for review and is therefore final.
Standard of Review
Our standard of review is statutorily defined by. the Act for Judicial Review and Civil Enforcement of Agency Actions, K.S.A. 77-601 et seq. See Nance v. Harvey County, 263 Kan. 542, 550-51, 952 P.2d 411 (1997). Under K.S.A. 77-621(c), we may grant relief if we find the agency has erroneously interpreted or applied the law.
This case requires us to interpret the meaning of K.S.A. 44-5a01(d), which is a question of law over which we have unlimited review. Miami County v. Svoboda, 264 Kan. 204, Syl. ¶ 1, 955 P.2d 122 (1998). Although we do give deference to the agency’s interpretation of the law, if such interpretation is found to be erroneous, we are to take corrective action. Boatright v. Kansas Racing Commn, 251 Kan. 240, Syl. ¶ 9, 834 P.2d 368 (1992).
In interpreting the Workers Compensation Act (Act), we look to our rules of construction, which need not be repeated but are set forth in Todd v. Kelly, 251 Kan. 512, 515-16, 837 P.2d 381 (1992).
Although we will also consider other provisions of the occupational disease statute, the specific provision we consider is K.S.A. 44-5a01(d), which states:
"Where an occupational disease is aggravated by any disease or infirmity, not itself compensable, or where disability or death from any other cause, not itself compensable, is aggravated, prolonged, accelerated or in any wise contributed to by an occupational disease, the compensation payable shall be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability or death, as such occupational disease, as a causative factor, bears to all the causes of such disability or death, such reduction in compensation to be effected by reducing the number of weekly or monthly payments or the amounts of such payments, as under the circumstances of the particular case may be for the best interest of the claimant or claimants.”
This provision relates to the apportionment of a disability award under two different situations: (1) where a preexisting occupational disease is aggravated by any disease which is not compensable; and (2) where a disability which is not compensable is aggravated in some manner by an occupational disease. Both parties agree that only the second situation is possibly applicable to the facts of the present case, as Burton did not suffer from a preexisting occupational disease.
In arguing that the apportionment statute should not apply to this case, Burton points out that the majority of jurisdictions that have considered this issue and the preeminent treatise in this area follow the approach adopted by the Court of Appeals. See Fry’s, 177 Ariz. at 266-67; Pullman Kellogg v. Workers’ Comp. Appeals Bd., 26 Cal. 3d 450, 454-55, 161 Cal. Rptr. 783, 605 P.2d 422 (1980); Kingery v. Ford Motor Co., 116 Mich. App. 606, 617-19, 323 N.W.2d 318 (1982); Rutledge v. Tultex Corp., 308 N.C. 85, 103-05, 301 S.E.2d 359 (1983); 3 Larson’s Workers’ Compensation Law § 41.64(d) (1997).
Rockwell asserts we should give great deference to the Board and that the Court of Appeals ignored our prior interpretation of the apportionment statute as expressed in Weimer. It urges us to adopt the holding and rationale of Jenkins.
We do not read Weimer as controlling precedent on the apportionment issue. While an apportionment award was upheld in Wei mer, our court was not asked to interpret the apportionment statute or render any decision as to its applicability to the facts of that case. The only issue we considered in Weimer was the sufficiency of the evidence to support the trial court’s determination that the claimant suffered a disability due to his work environment. See Weimer, 184 Kan. at 426-28. As such, the interpretation and applicability of the apportionment statute remains one of first impression for this court.
K.S.A. 44-5a01(d) refers to an aggravation of “disability or death.” A “disability” resulting from an occupational disease is separately defined in K.S.A. 44-5a04(a) in the following manner:
“ ‘[D]isablement’ means the event of an employee becoming actually incapacitated, partially or totally, because of an occupational disease, from performing the employee’s work in the last occupation in which injuriously exposed to the hazards of such disease, and ‘disability’ means the state of being so incapacitated.”
We held in Knight v. Hudiburg-Smith Chevrolet, Olds., Inc., 200 Kan. 205, 209, 435 P.2d 3 (1967), that the term “disability,” when attributable to occupational disease, relates to loss of earning capacity. See Slack v. Thies Development Corp., 11 Kan. App. 2d 204, 718 P.2d 310, rev. denied 239 Kan. 694 (1986); 82 Am. Jur. 2d, Worker’s Compensation § 380, p. 414. The Board’s decision, which ignores this definition and equated disability with the entire disease process such that the “causes of the disease are, therefore, also causes of the disability,” is not based on persuasive authority when considering occupational disease in the workers compensation field as defined in our prior opinions.
The most persuasive authority in analyzing the cases in this área is 3 Larson’s Workers’ Compensation Law § 41.64(d) (1997), where the two views of various states are compared and the desirable result is summed up by the following statement: “The crucial distinction, then, is between apportioning disability and apportioning cause. The former is possible in the minority of states having apportionment statutes; the latter is never possible.” (Emphasis added.)
The leading case is the Fry’s, decision from Arizona, which is factually similar to our case. The claimant there suffered from chronic obstructive pulmonary disease due to his smoking habit and then developed a condition known as "baker’s lung” due to his 7-year exposure to flour dust at a flour mill.
The Arizona Supreme Court reversed the Court of Appeals’ apportionment of the disability award, which had reversed the ALJ’s decision not to apportion. The Fry’s court noted the distinction between impairment and disability and stated that while an impairment is necessary to obtain a disability award, an individual suffering an impairment may not necessarily incur a dis'ability. The court held that if a claimant has a prior impairment, but no disability, the apportionment statute would not apply. Turning to the facts of its case, the Fry’s court found there was no evidence that the claimant incurred a disability until being exposed to the flour dust or that he would have been disabled in the absence of such exposure. 177 Ariz. at 267.
The Arizona court emphasized that its statute “requires apportionment of disabilities, not apportionment of the different causes of a single disability.” 177 Ariz. at 268. The court then relied on the quote from Larson which we have previously set forth herein.
The Fry’s case discredits the Jenkins holding by stating that the Arkansas Court of Appeals’ opinion “confuses causation and apportionment.” 177 Ariz. at 269.
Judge Lewis’ dissent correctly points out policy reasons for requiring apportionment, but the legislature has not clearly acted so that apportionment is required. Burton buttresses his position by pointing to the clear requirement of apportionment in cases dealing with pulmonary or other types of emphysema contained in the wording of K.S.A. 44-5a01(b), which states:
“Provided,, That compensation shall not be payable for pulmonary emphysema or other types of emphysema unless it is proved, by clear and convincing medical evidence to a reasonable probability, that such emphysema was caused, solely and independently of all other causes, by the employment with the employer against whom the claim is made, except that, if it is proved to a reasonable medical probability that an existing emphysema was aggravated and contributed to by the employment with the employer against whom the claim is made, compensation shall be payable for the resulting condition of the workman, but only to the extent such condition was so contributed to and aggravated by the employment.”
If the legislature desired to require apportionment in all cases of a disease producing a single disability, it could have utilized the wording set forth above. By its failure to do so, a different result is required where the diagnosis is some type of emphysema.
There may be a policy reason to require apportionment in cases like the one before us, but such should be the decision of the legislature and not the court. The clear weight of authority around the country is contrary to the argument of the Court of Appeals’ dissent, which would apportion causation and not disability. We construe K.S.A. 44-5a01(d) as not requiring apportionment where a disease producing a single disability is caused by both occupational and nonoccupational factors. K.S.A. 44-5a01(d) does not apply under the facts of this case.
The Court of Appeals is affirmed. The Board is reversed in part and affirmed in part. The case is remanded to the Board to enter an order consistent with the directions of this opinion. | [
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The opinion of the court was delivered by
ALLEGRUCCI, J.:
After terminating the employment of its marketing manager, Daniel Fahey, Decatur County Feed Yard (DCFY) filed an action seeking a declaratory judgment that it had not breached its employment contract with him. After learning during discovery that Fahey’s resume was incomplete, DCFY added fraud and negligent misrepresentation claims. Fahey counterclaimed for breach of contract and implied covenant of good faith, fraud, and promissory estoppel. Ruling on cross-motions for summary judgment, the district court concluded that the employment contract had not been breached and that none of the other claims had merit. Fahey appealed. DCFY cross-appealed. The case was transferred by this court from the Court of Appeals, pursuant to K.S.A. 20-3018(c).
The recitation of facts was given by the district judge on the record after counsel’s arguments on their motions for summary judgment. In his prefatory remarks, the judge noted that “there are statements of facts which are agreed upon by the parties.” He also referred to “the stipulated facts.” In the statements of facts in their appellate briefs, neither party mentions the agreed statements, stipulations, or the judge’s summation of facts.
The district judge began his remarks with this snapshot of the procedural history:
“This case began life August 18,1995, in Decatur County, filed by the plaintiff, seeking declaratory judgment, concerning the issues between the parties as to the contracts. The defendant, Daniel Fahey, moved tire matter to federal court claiming diversity of citizenship, added additional claims. The case was referred back to this court on March 7th, 1997, by the federal court, and was found that no diversity existed. At the time the suit was filed and the ERISA claims filed in federal court were dismissed and resolved, and the balance of the pleadings sent back to this court for determination.
“The petition has been amended to claim fraud by silence, fraudulent misrepresentation, negligent misrepresentation claims. The defendant has counterclaimed claiming fraud by silence, fraudulent disclosure, fraudulent misrepresentation, negligent misrepresentation.”
The district judge made the following findings of fact before announcing his conclusions on the cross-motions for summary judgment:
“The facts in this case involve the Decatur County Feed Yard, which began existence in 1971. At that time, it grew, in 1977, to approximately 18,000; ’95, they increased their capacity again. In 1987, they leased a feed yard in Menlo, Kansas, to in effect increase their feeding operation. That agreement was terminated and tile size of the lot again increased in 1992.
“Warren Weibert was the president and manager of Decatur County Feed Yard. In this case, he has held that position since 1977 to date. Then in April of 1992, the Decatur County Feed Yard’s marketing manager, Cal Sebring, left and he had been the marketing director at that time for five years prior to that point. In 1992, Daniel Fahey was looking for employment, and through Cattleman’s Employment Search in Garden City, Fahey determined that Decatur County Feed Yard was looking for an employee and later determined the position also included marketing manager.
“In May of 1992, the defendant contacted Weibert indicating his interest in employment in Decatur County Feed Yard. It was at this time that he learned there was also a marketing manager position available. On May 12, 1992, the Defendant Fahey faxed to Weibert a copy of his resume, which is attached to the pleadings herein as Exhibit A. The exception noted is the handwriting on there is not the defendant’s, that was put on there by Plaintiff Weibert after the resume was received, and pursuant to discussions that he’d had with Mr. Fahey.
“On June 11, 1992, Fahey met with Weibert in Oberlin at the Decatur County Feed Yard, took a tour of the feed yard at that time. During that meeting; Weibert discussed with Fahey and commented he was looking for a ten-year commitment. Fahey testified that Weibert did not elaborate any iurther on what he discussed with the ten-year commitment and neither did Weibert. Neither party indicated anything additional was stated concerning a ten-year commitment on June 11, 1992.
“During that tour on June 11, 1992, salary and benefits were discussed as the position of marketing manager. Weibert indicated the carrot on the stick was a retirement package in the area of $500,000. Fahey told Weibert he wanted a salary of 52,000 a year. These were the beginning discussions the parties had.
“During the preliminary discussions, Fahey understood that Weibert’s expectations of his employment would be that Fahey would be able to take over selling fat cattle, and to sell any of these cattle he could buy and put in inventory, and to solicit business into the yards, and to handle their customers. Fahey understood that increasing the rates of occupancy was an important part of his job, and he understood that he was to increase the rate of occupancy by soliciting customers. This goal was made clear to him at the time that he was hired.
“Before hiring Fahey, both Weibert and Fahey discussed Fahey’s job experience and job history in more than one conversation. However, neither Weibert nor anybody else on behalf of Decatur County Feed Yard asked Daniel Fahey if the experience category on his resume was a complete job history. That question was never asked. In Weibert’s conversations with Fahey prior to being employed at the Decato County Feed Yard, Fahey did not disclose any other places of employment, and did not disclose that his employment resume was incomplete.
‘Weibert, Warren Weibert hired Fahey based upon the interviews with Fahey, the disclosures he made during that time, and the report which Weibert had requested be made by the SRI Gallup Group, an individual group which did screening for employers at Decatur County Feed Yard. This was both Weibert and his wife relied upon the interviews of Fahey, his resume, and the report, in making the decision to hire Fahey at the time when he began work on July 1 of 1992.
“On July 14, 1993, over a year after Fahey began working in his employment, the final supplemental contract agreement was signed and it was stated as a Supplemental Benefits Plan. That is agreed by the parties, called Exhibit B, it’s referred to throughout these pleadings. Prior to die signing of that supplemental agreement plan, Fahey indicated that the employment conditions were, on Page 80 of his deposition, Line 5, that both were to be happy with each other and do a job to make Decatur County Feed Yard grow. On Page 82, Line 19, Fahey testified Weibert wanted the occupancy of the feed yard to grow. And on Page 91, Line 21, the number in the feed yard was to increase.
“At the time they entered into the contract, it was agreed by the parties that it was an employment at will; the two main things Fahey must do were to keep the Weiberts happy, and increase the occupancy on the feed yard. On July 14,1993, the Supplemental Benefit Plan was signed and agreed upon, they specified retirement dates. . . .
“The key portion is the forfeiture clause; . . . which states;
‘Notwithstanding any other provisions of this Agreement, if Executive Fahey is discharged by the company for dishonesty he shall forfeit all of his, his surviving spouse’s and descendants’ rights to receive any further payments under the provisions of this Agreement. Further, the Executive Fahey while in employment of Decatur County Feed Yard, shall not at any time, either directly or indirectly, accept employment with, render service, assistance or advice to, or allow his name to be used by any competitor of the Company unless approved by the Board of Directors of the Company. Determination by the Board of Directors of such Company that the Executivé Fahey has engaged in any such activity shall be binding and conclusive on all parties, and in addition to all other rights and remedies which Company shall have, neither Executive or Beneficiary shall be entitled to any further payments hereunder.’
‘With respect to this supplemental payment plan, Fahey did not discuss with Lyle Lessman or Warren Weibert the meaning of the language in the plan that Decatur County Feed Yard could terminate employment at any time for any reason with cause. That was never discussed. Fahey and Weibert never discussed the meaning of any of the terms of the plan after that was signed until after the Weiberts asked for his resignation on January 6, 1995. Fahey estimated in his deposition that when he was hired, Decatur County Feed Yard’s occupancy rate was probably at or below the industry average. He admitted that from 1992 to 1994, while he was a marketing manager at Decatur County Feed Yard, the trend in the open occupancy rates were down. Fahey deposition, Page 99, Line 18, stated that in two-and-a-half years that he was the Decatur County Feed Yard marketing manager, Decatur County Feed Yard’s occupancy did not increase.
“Fahey acknowledged that Weibert had criticized his failure to sell cattle on a timely basis. Fahey admitted this was a valid criticism, although he explained the circumstances away. Fahey testified that Weibert had concern about the fact that the rate of occupancy was declining, although Fahey believes it was caused by other factors.
“Weibert, along with his wife, Carol Weibert, who’s the only other board member of Decatur County Feed Yard, decided on January 6 to ask Fahey to resign. On January 6th, Fahey chose not to resign and they terminated his employment on January 7th, 1995. This lawsuit was filed by the plaintiffs on March 18th, 1995.
“Within a few months after the términation of employment in 1995, Warren Weibert had a series of discussions with William Helming, principal of the corporation called the Helming Group, which is a consulting firm company providing consulting, market analysis and business planning in the agribusiness area. That during that conversation, Warren Weibert determined that Dan Fahey had been terminated from his employment on less than favorable terms; however, the parties reached a settlement in their termination and the record further disclosed there was a letter of recommendation prepared by Helming for Mr. Fahey.
“On Page 98 of Mr. Fahey’s deposition, Lines 10 through 12, question: “Was is [sic] it fair, Mr. Fahey, to say that the trend in occupancy from 1992 to 1994 was down?’ Mr. Fahey answered yes. On Page 118, he indicated that was for the two- and-a-half year period.”
With regard to the supplemental benefits plan, the district judge made the following findings:
“The contract terms between the plaintiff and defendant prior to July 13th, 1993, was clearly an employment at will; that the defendant could be discharged at any time for any reason, cause or not. After one year, the plaintiffs presented a contract to the defendant, Supplemental Benefits Plan, which provided a series of protections and benefits to the defendant. It, however, did not change the primary function upon which Fahey was hired. Fahey was originally hired to keep the feed yard full and to increase the occupancy rates. What is clear from the 7-13-93 contract is that it changed and put cause in there, and did not require simply an employment at will, and the termination could not be had just'simply because they didn’t like him. There had to be a reason to terminate him.
“The contract did not modify what Fahey’s primary function was, and that is to be manager of the feed yard. A feed yard is a private industry business, which requires that it have cattle in it to make money. He was to increase the occupancy rates therein.”
Weibert’s affidavit contains the following explanation of the decision to terminate Fahey s employment:
“He was ineffective at his job, including soliciting and buying feeder cattle and selling diem back to our customers; he did not communicate critical market conditions to our customers at critical times; he was slow to respond to' critical situations, especially in terms of selling cattle; and was slow to respond to changing market conditions. He did not make valuable use of his time, and did not succeed in keeping DCFY customers happy nor in keeping me happy in terms of his job performance. Finally, Mr. Fahey did not keep the cattle pens full or make progress in filling DCFY cattle pens, and in fact, the DCFY cattle occupancy during Mr. Fahey’s employment headed in a downward trend, and DCFY occupancy was lower than comparable catde feeding operations during the same time period.”
The district court reached the following conclusions of law: (1) DCFY’s request for a declaration that it did not breach its contract with Fahey was granted. (2) Summary judgment was granted to Fahey on DCFY’s claim that Fahey’s résumé constituted fraud. (3) Summary judgment was granted to Fahey on DCFY’s additional claims for fraud against Fahey. (4) Summary judgment was granted to DCFY on Fahey’s claim that DCFY, by entering into the supplemental benefits agreement, fraudulently induced him to continue his employment. (5) Summary judgment was granted to DCFY on Fahey’s claim for wages and benefits under the supplemental benefits agreement. (6) Summary judgment was granted to DCFY on Fahey’s claim of promissory estoppel.
At the end of the proceedings, plaintiff s counsel was directed by the district judge to prepare a journal entry. Counsel was told that the findings of fact and conclusions of law that the judge made on the record could be incorporated into the journal entry “by reference.” The journal entry states, in part:
“[A]fter hearing the arguments of counsel, and considering the briefs and written submissions of the parties, the court rules from the bench as follows: Defendant’s Motion for Summary Judgment regarding plaintiffs affirmative claims for fraud and negligent misrepresentation, as well as plaintiff s affirmative defense to defendant’s counterclaims of subsequent acquired knowledge of misconduct, pursuant to Gassmann v. Evangelical Lutheran Good Samaritan Society, Inc., 261 Kan. 725, 933 P.2d 743 (1997), is hereby granted. The transcript of the court’s findings of fact and conclusions of law from the bench is incorporated herein as if fully set forth herein.
“As all claims of the parties are disposed of by this Order, this Order constitutes a final judgment as to all claims.”
We first consider Fahey’s breach of contract counterclaim. Fahey contends that the ruling against him on his breach of contract counterclaim was due to die district court’s erroneously using parol evidence in interpreting the supplemental benefits plan agreement (Agreement). “When a contract is complete, unambiguous, and free from uncertainty, parol evidence of prior or contemporaneous agreements or understandings tending to vary the terms, of the contract evidenced by the writing is inadmissible.” Simon v. National Farmers Organization, Inc., 250 Kan. 676, 679- 80, 829 P.2d 884 (1992). It is Fahey’s position, and DCFY agrees, that the Agreement is complete and unambiguous.
Whether a contract is ambiguous is a matter of law. In re Estate of Sanders, 261 Kan. 176, 181, 929 P.2d 153 (1996). When the court is examining a contract for the purpose of determining whether it is ambiguous, it must give the language “a natural and reasonable interpretation.” Weber v. Tillman, 259 Kan. 457, 476, 913 P.2d 84 (1996). “As a general rule, if the language of a written instrument is clear and can be carried out as written, there is no room for rules of construction.” Simon, 250 Kan. at 680. “Regardless of the construction of a written contract made by the trial court, on appeal a contract may be construed and its legal effect determined by the appellate court.” Weber, 259 Kan. at 476.
Fahey focuses exclusively on ¶ 7 of the Agreement. The “ ‘cardinal rule of contract construction,’ ” though, requires the court to construe all provisions together and in harmony rather than in isolation. In re Cherokee County Revenue Bonds, 262 Kan. 941, 953, 946 P.2d 83 (1997) (quoting Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 671, 876 P.2d 1362 [1994]).
There are 13 numbered and titled paragraphs in the Agreement and one subparagraph that defines “disability.” Paragraphs 2 through 12 govern eventualities or specific aspects of the benefits plan. Those paragraphs are titled Retirement, Disability, Death, Small Amounts, Beneficiary, Forfeiture, Insurance, Unsecured Promise, Arbitration Clause, and Assignment. Paragraph 13, titled Miscellaneous, contains a standard assortment of provisions for amending, revoking, and construing the Agreement.
The subject of ¶ 1 is not eventualities or specific aspects of the benefits plan or construction of the Agreement. It is titled Employment, and it precedes the other paragraphs because it establishes the basis for Fahey’s eligibility for the benefits plan:
“Company will employ Executive as Marketing Manager or in such other positions as may be determined from time to time by Company and at such rate of compensation as may be so determined. Executive will devote his full energy, skill and best efforts to the affairs of Company on a substantially full-time basis. It is also contemplated that such employment will continue until December 11, 2004, (Executive normal retirement date of age sixty-five [65]), but nevertheless either Company or Executive may terminate Executive’s employment at any time and for any reason with cause, upon thirty (30) days written notice to the other. The Company’s right to terminate the Executive for any reason with cause, may be exercised by the Company’s board of Directors as the Board is presently constituted or as it may be constituted from time to time in the future.”
As the district court noted, Fahey’s first year of employment with DCFY was employment at will. The parties altered his status when they entered into the Agreement so that Fahey’s employment could be terminated only with cause.
What constitutes cause is the question raised by Fahey, who argues that cause is defined by ¶ 7. That paragraph provides for forfeiture of payments under the Agreement in the event that Fahey is discharged for dishonesty and prohibits his aiding competitors. Fahey would have the court read ¶ 7 to mean that only dishonesty or disloyalty constitute cause.
The reading advocated by Fahey is unnaturally narrow. First, it effectively nullifies ¶ 1. If ¶ 7 were construed to define cause as dishonesty or disloyalty, the provision of ¶ 1 that establishes that Fahey’s employment can be terminated “for any reason with cause” would be rendered meaningless. The Agreement changed Fahey’s status from that of an employee-at-will to one whose termination required some cause, but it did not guarantee his employment short of dishonesty or disloyalty. Second, Fahey’s reading negates the harmonious relationship among the paragraphs of the Agreement. Paragraphs subsequent to ¶ 1 provide benefits to Fahey and his family as a result of his employment by DCFY, some benefits even surviving termination of his employment. Paragraph 7 is the proviso that would cut off benefits if Fahey were dishonest or disloyal. It is the limitation on benefits rather than the definition of cause for termination.
The Agreement is complete and unambiguous and provides that Fahey’s employment was terminable for any cause. It was not necessary for the district court to resort to parol evidence in reaching its conclusion that Fahey was terminated for cause within the meaning of the contract. Nor does it appear that the district court did so. Because the Agreement plainly provides that Fahey’s termination may be “for any reason with cause,” it would only be when cause is too narrowly defined, as in Fahey’s erroneous construction, that cause for his termination could not be found within the four comers of the contract.
Fahey’s fallback position is that the entry of summary judgment on his breach of contract counterclaim was improper because there are genuine issues of material fact. In this regard, he makes several arguments.
First, he contends that his “understanding of his contractual rights under the written Agreement is at odds with DCFY’s” and that the reasons given by DCFY for his termination were false. A contract is the written embodiment of the parties’ intent, and construction of the contract is a matter of law. Differing interpretations of a contract’s provisions where, as here, the contract is complete and unambiguous do not present issues of fact.
The second contention, too, is flawed. Fahey argues that “application of the Weir test to the facts of this case demonstrates that genuine issues of material fact exist for trial.” He refers to Weir v. Anaconda Co., 773 F.2d 1073 (10th Cir. 1985) (applying Kansas law). Here, the district judge used the definition of “cause” from Weir:
“[Cause for discharge] is a shortcoming in performance which is detrimental to the discipline or efficiency of the employer. Incompetency or inefficiency or some other cause within the control of the employee which prohibits him from properly completing his task is also included within the definition. A discharge for cause is one which is not arbitrary or capricious, nor is it unjustified or discriminatory.” 773 F.2d at 1080.
On a motion for summary judgment, the trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the nonmoving party but, in opposing the motion, that party “must come forward with evidence to establish a dispute as to a material fact.” Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131, 955 P.2d 1189 (1998). Here, the district court credited DCFY’s evidence, Weibert’s affidavit, previously quoted herein.
Fahey conceded that the number of cattle occupying the feed yard actually decreased during his tenure. Fahey, however, submitted an affidavit in which he chronicled his diligent efforts to make DCFY succeed and swore that circumstances beyond his control adversely affected its profitability. He relies on the definition of cause in Weir for the proposition that the product of circumstances outside his control “cannot be considered ‘cause’ for terminating his employment.” A reasonable reading of Weir, however, does not necessarily support Fahey’s construction. The federal court broadly defined cause for termination as a shortcoming in the employee’s performance that is detrimental to the employer and added that the definition included “[i]ncompetency or inefficiency or some other cause within the control of the employee which prohibits him from properly completing his task.” 773 F.2d at 1080. Fahey would apply “within the control of the employee” to the entire category rather than limiting it to the “some other cause[s]” included within the definition. He cites no support for his construction in Kansas law, nor has any come to the court’s attention. The federal court referred to a definition set out by this court in Gillett v. U.S.D. No. 276, 227 Kan. 71, 78, 605 P.2d 105 (1980):
“[A] tenured teacher may be terminated or nonrenewed only if good cause is shown, including any ground which is put forward by the school board in good faith and which is not arbitrary, irrational, unreasonable, or irrelevant to the school board’s task of building up and maintaining an efficient school system.”
In this definition, the emphasis is on reasonableness. Determination of reasonableness might include consideration of external factors that hampered the employee’s performance, but no cases have come to our attention in which that specific question was adjudicated. Assuming for the purpose of discussion that matters outside the employee’s control can constitute circumstances extenuating his shortcomings and, thus, casting doubt on the sufficiency of the employer’s stated reasons for termination, it would be up to the employee to furnish proof of the external matters. In the present case, Fahey countered Weibert’s stated reasons for the termination with his own affidavit, his own deposition testimony, and Weibert’s deposition testimony. Weibert testified:
“Q. What factors [affect] the ability to fill a feed yard in your experience?
“A. There are a lot of factors.
“Q. Kind of go through them.
“A. Weather is a factor. The price of feeder cattle is a factor. The price of grain is a factor. The price of fat cattle is a factor. Having a good reputation is a factor. Having good production numbers is a factor. Having good personnel is a factor. Presenting a good image is a factor. And I am sure there are many, many other factors.
“Q. Competition a factor?
“A. Of filling a feed lot?
“Q. Yeah.
“A. It could be, yes.
“Q. Market conditions a factor?
“A. It is possible. There are a lot of feed lots in the country. There is a lot of cattle in the countiy. And you can still have full feed lots in all market conditions.”
Weibert’s testimony is that the external factors possibly could affect occupancy of a feed yard. Fahey’s sworn testimony is that weather, season, market conditions, grain prices, and competition adversely affected his efforts to fill DCFY with cattle. He offers further proof that the low occupancy rates were due to circumstances beyond his control in Weibert’s deposition testimony that the overall rates continued to decline after Fahey’s departure through summer 1996. During that period, Weibert solicited customers. Weibert attributed the decline to factors, including market conditions, other than his performance.
Other evidence Fahey points to in disputing DCFY’s position that he was ineffective as marketing manager are his satisfactory performance evaluation and 5% raise in salary of June 1993 and execution of the Agreement in July 1993. In Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 872 P.2d 252 (1994), a discharged employee argued that her increases in pay and responsibilities and absence of negative evaluations established that her work performance had been satisfactory. She further argued that they “created an implied contract of continuing employment over and above the written contract,” which had allowed termination at will. 255 Kan. at 174. The court dismissed the notion with the following: “The mere fact that an employee has not been previously terminated under written contractual employment-at-will provisions does not create an implied contract for continuing employment.” 255 Kan. at 174. In this case, Fahey already has the contract that requires cause for termination, and he is arguing that his satisfactory evaluation and pay increase establish lack of cause. He cites no authority for the proposition.
Finally, Fahey contends that he presented substantial evidence of DCFY’s lack of good faith and fair dealing. He refers to the price of feed at DCFY and Weibert’s veto of some ideas floated by Fahey. In Bonanza, Inc. v. McLean, 242 Kan. 209, 222, 747 P.2d 792 (1987), the court discussed a duty of good faith and fair dealing that precludes parties to a contract from intentionally blocking each other’s performance. Bonanza involved a lease agreement. Fahey has not provided the court with a model for application of the duty to an employment contract. Nor does Fahey seem to have come forward with any evidence that would indicate that Weibert was doing anything other than exercising his business judgment. Fahey has provided no authority for the proposition that Weibert’s doing so would constitute bad faith or unfair dealing to prevent Fahey from performing.
The district court also concluded that Fahey’s promissory estoppel claim was “waived, because there was cause for termination.” In other words, the district court declined to enforce DCFY’s promise to employ Fahey until December 2004 because the promise was contingent on Fahey’s performance satisfying DCFY, and his performance did not.
Fahey contends that cause for termination is irrelevant. He argues that DCFY is obligated to keep its promise to employ him until December 2004, as stated in ¶ 1 of the Agreement, because, as DCFY expected, in reliance on the promise of long-term employment Fahey moved his family to Kansas from Arizona, bought a house, and renovated it. For some time, the courts of this state have applied the rule set forth in Restatement (Second) of Contracts § 90 (1979): “A promise which the promisor should reasonably expect to induce action ... on the part of the promisee and which does induce such action ... is binding if injustice can be avoided only by enforcement of the promise.” Kirkpatrick v. Seneca National Bank, 213 Kan. 61, 67-68, 515 P.2d 781 (1973). This is the principle upon which Fahey relies, but it has no application in the circumstances of the present case.
Promissory estoppel developed as a substitute for consideration, which allowed a court to enforce an otherwise unenforceable promise. For example, in Greiner v. Greiner, 131 Kan. 760, 293 Pac. 759 (1930), the court enforced a mother’s promise to provide one of her sons with a parcel of land even though there was no consideration for her promise. Relying on his mother’s promise, the son had given up his homestead in Logan County, moved himself and his family to Mitchell County, established himself and his family on the promised tract, and made valuable improvements. The district court decided that the mother should execute a deed to the son, and this court affirmed, stating: “[T]his court cannot say it would not be unjust to deny him a deed and to put him off, and cannot say a money judgment would afford him adequáte relief.” 131 Kan. at 765.
Fahey cites a more recent case, Mohr v. State Bank of Stanley, 244 Kan. 555, 770 P.2d 466 (1989). There, too, the court indicated that the doctrine of promissory estoppel is a substitute for consideration. 244 Kan. at 574. Here, there was an agreement supported by consideration on either side, and both parties had performed under the agreement for some period of time. Promissory estoppel is not applicable to the circumstances in the present case.
Although waiver would seem to be an unrelated concept, the district court’s conclusion appears to have been correct. “ 'A district court’s reasons for its decision are immaterial if the ruling was correct for any reason.’ ” Stone v. City of Kiowa, 263 Kan. 502, 516, 950 P.2d 1305 (1997) (quoting Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, Syl. ¶ 3, 863 P.2d 364 [1993]).
In view of the foregoing, we need not consider other arguments asserted by appellant or to consider the cross-appeal of appellee.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Lockett, J.:
County repaired a township road. Township refused to pay County. County filed suit against Township to recover its costs for the road repair. The district court found County had statutory authority to repair the road and assess the cost against Township, granted summary judgment to County, and entered judgment against Township for the amount of the repairs. Township appeals, claiming Board of County Commissioners had no statutory authority to repair or order Township to repair the township road.
On October 10, 1994, seven residents of Lincoln Township, who resided along or near a township road that lies between Lincoln Township and Nemaha County, met with the Board of County Commissioners of Marshall County (Marshall County) to express their concern regarding the safety of the township road. Marshall County contacted the county road supervisor, who opined that the road was not safe for the traveling public, particularly for the school bus and the U.S. mail carrier. Marshall County sent written notification to the Lincoln Township Board of Trustees, advising the trustees that if they did not repair the road within 2 weeks, Marshall County would proceed under K.S.A. 68-124 with reasonable repairs to the township road and charge the expenses to Lincoln Township.
On October 17, 1994, the Lincoln Township Board of Trustees met with Marshall County and informed the commissioners that Lincoln Township did not have sufficient funds to make the needed repairs on the road. Lincoln Township believed the road was in satisfactory condition for travel except when it was wet and muddy, and denied Marshall County’s demand to repair the road.
On October 24, 1994, Marshall County delivered rock to the township road. Lincoln Township applied the rock to the road. Marshall County billed Lincoln Township $2,030.25 for the cost of the rock, labor, equipment, and material. The amount was due on or before March 10, 1995. Lincoln Township claimed it was without funds and refused to pay the amount due.
Marshall County filed an action in district court to recover the cost of the project. The district court granted summary judgment to Marshall County against Lincoln Township in the amount of $2,030.25. Lincoln Township appeals, claiming Marshall County had no authority under the circumstances to repair or to order the township to repair the township road.
The resolution of the question presented depends on statutory interpretation. Interpretation of a statute is a question of law, and this court’s review is unlimited. Hamilton v. State Farm Fire & Cas. Co., 263 Kan. 875, 879, 953 P.2d 1027 (1998).
The district judge observed that the answer to the issue depends upon die interpretation of K.S.A. 68-124, which provides in part:
“Where under the laws of the state of Kansas . . . any road or highway that is not a county road has been declared to be a public road or highway, it shall be the duty of the board of highway commissioners of the township in which such road is located to repair, place and keep in condition for travel such roads or highway. If such board of highway commissioners shall neglect, refuse or fail to comply with the provisions of this act, the board of county commissioners of the county may repair and put in good condition for travel such road or highway, and shall charge the expenses therefor to the township in which such road is located.”
The district judge noted that although the primary responsibility for the maintenance of township roads in counties that do not operate under the county unit system is placed with the township board, as provided by K.S.A. 68-526 and 68-124, there are certain situations where the board of county commissioners has the statutory authority to intervene. The provisions of K.S.A. 68-124 allow the board of county commissioners to intervene when the township board “shall neglect, refuse or fail” to place and keep the roads in good condition. The district judge observed that if the county commissioners determined the road is not in good condition for travel, the commissioners had statutory authority to put the township road in good condition and charge the expenses to the township.
The district judge noted there was a difference of opinion between Marshall County and Lincoln Township as to whether the road was safe for travel or whether repairs were necessary to put the road in good condition. Lincoln Township had concluded, based on the use of the road, history of maintenance of the road, funds available for repairs, and other factors, that the road, except when wet or muddy, was in good condition for travel. Marshall County, after considering the same factors, disagreed with Lincoln Township and concluded that the road was not safe for public travel and required repair to put it in safe condition for travel when wet or muddy.
The district court observed that Marshall County had relied upon Attorney General Opinion No. 87-22 in determining it had the authority to make repairs to the road and to charge the expenses to Lincoln Township. The Attorney General had issued the opinion on February 5, 1987, at the request of the Marshall County Counselor. Before discussing that opinion, the district judge acknowledged that opinions issued by the Attorney General’s office, though not binding on the court, are persuasive. See Moore v. City of Lawrence, 232 Kan. 353, 362, 654 P.2d 445 (1982); Greenwood v. Estes, Savings & Loan Commissioner, 210 Kan. 655, 661, 504 P.2d 206 (1972).
In Opinion No. 87-22, the Attorney General relied upon Stock Farm Co. v. Pottawatomie County, 116 Kan. 315, 226 Pac. 781 (1924), and determined that Marshall County had authority under K.S.A. 68-124 to make repairs to a township road and to charge the township for the expenses incurred if the township board failed to make the necessary repairs to keep the road in good condition for travel. In Stock Farm Co. this court stated:
“Where the township highway commissioners neglect to place and keep in condition a lawfully established township road, that duty may be lawfully performed by order of the board of county commissioners or the county engineer, and the expenses therefor charged against the township as provided in R.S. 68-124, 68-546.” 116 Kan. 315, Syl. ¶ 5.
The district judge then noted that K.S.A. 68-124 contains no statement as to what repairs may be made or how the term “good condition for travel” is to be construed or applied. The district judge pointed out that the statute vests the board of county commissioners with the authority to determine whether the township board of highway commissioners has neglected, refused, or failed to repair and place the road in good condition. The district judge concluded that the repairs needed for the road to be in good condition for travel are left to the sound judgment and discretion of the board of county commissioners.
The district judge further noted that in Pratt v. Fall River Township Board, 155 Kan. 442, 445, 125 P.2d 357 (1942), the Kansas Supreme Court, in a mandamus action relating to the repair and maintenance of a township road, stated: “Where a public official or board is vested with discretion courts will not interfere to control that discretion in the absence of fraud, bad faith or gross impropriety on the part of the official. [Citations omitted.]”
The judge tíren noted that Marshall County, after consideration of the use of the road as a farm-to-market road, mail route, and school bus route, had concluded the road was not always in good condition for travel and needed to be repaired. Marshall County had attempted to obtain the cooperation of Lincoln Township in making the necessary repairs. After Lincoln Township refused to make the necessary repairs, Marshall County, following K.S.A. 68-124, exercised its discretion and made the necessary repairs.
As it did in the district court, Lincoln Township argues on appeal that it did not fail to act; it specifically considered the condition of the road and elected not to repair a road that was safe for public travel except when it was wet or muddy. Lincoln Township asserts that Marshall County made a political decision to repair the road, rather than a decision based on safety considerations. By acting in such a manner, Lincoln Township contends Marshall County unlawfully usurped Lincoln Township’s authority and repaired a road the township had determined to be in good condition for travel under normal weather conditions. Lincoln Township also alleges that the district court considered controverted facts regarding the condition of the road and improperly ruled on the motion for summary judgment.
Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. 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. Saliba v. Union Pacific R.R. Co., 264 Kan. 128, 131-32, 955 P.2d 1189 (1998).
After reviewing the record, we find that it is unnecessary to sort through the controverted and uncontroverted facts raised by Lincoln Township to resolve the question of whether the evidence indisputably established that the township road was not always in good condition for travel. The answer is found in affidavits submitted by Lincoln Township to the district court.
Lincoln Township attached three affidavits to its memorandum in opposition to Marshall County’s motion for summary judgment: an affidavit by Loren Kent Stowell, treasurer of Lincoln Township; an affidavit by August Barnes, Lincoln Township grader operator; and an affidavit by Donald Van Dorn, trustee of Lincoln Township. All three affidavits stated: “When the road was wet it could be classed as a dirt road and would not be passable for ordinary traffic or school buses.” The affidavits by Loren Kent Stowell and Donald Van Dorn stated that the road “was not dangerous and was passable to ordinary traffic at all times except when it was muddy.” (Emphasis added.)
Lincoln Township’s affidavits admit that the township road was not in good condition for travel when the weather was wet and the road was muddy. Each affidavit explained that alternate passable roads were utilized by the school bus and the mail carrier during wet weather, i.e., alternate routes were necessary because the township road was not in condition for travel during those times. The Lincoln Township affidavits clearly establish that the township road was not always in good condition for travel. In addition, the county road supervisor determined the road was not safe for the traveling public.
When a statute is plain and unambiguous, the court must give effect to the intention of the legislature as expressed. In re Marriage of Killman, 264 Kan. 33, 42-43, 955 P.2d 1228 (1998). Under K.S.A. 68-124, the duty of a township is to keep its roads in “good condition for travel.” Where the township neglects, refuses, or fails to comply with the statute’s mandate, the board of county commissioners of the county in which the township is located may exercise its discretion, conduct road repairs, and charge the township for the cost of the project. K.S.A. 68-124.
K.S.A. 68-124 is unambiguous. Lincoln Township had a duty to maintain its roads in good condition for travel, and Marshall County had discretion to order necessary repairs when Lincoln Township failed to do so. Marshall County determined that Lincoln Township had failed in its duty to keep the road in good condition for travel when the weather was wet or the road was muddy. Marshall County, as authorized by statute, exercised its discretion and made the determination that under the circumstances the road should be in good condition for travel in wet weather. Consequently, it made necessary repairs to the road and charged the expenses to the township.
Marshall County did not act fraudulently, in bad faith, or with gross impropriety; it clearly acted within the bounds of its discretion in ordering the repair of the road. The district court did not err in granting summary judgment in favor of Marshall County.
Cash Basis Law
The affidavit of Donald Van Dorn, trustee of Lincoln Towmship, states that there were not sufficient funds in the township budget to pay for the road repair. Lincoln Township argues that Marshall County cannot create a debt or obligation for Lincoln Township which Lincoln Township could not lawfully create. Lincoln Township asserts that Marshall County’s expenditure for the township’s road repair was unlawful because the township was prohibited by the Kansas Cash Basis Law, K.S.A. 10-1101 etseq., from expending funds or creating an indebtedness in excess of the amount of funds actually on hand or in excess of the amount it had budgeted.
The district judge observed that in Lincoln Township’s response and opposition to Marshall County’s motion for summary judgment, Lincoln Township asserted a defense that it did not have sufficient funds to pay for the cost of the repairs for the improvements to the road. That statement was originally made by Loren Stowell, Lincoln Township Treasurer to the board of county commissioners at its October 17, 1994, meeting. The judge found that the cost for the repairs was a major reason for Lincoln Township’s refusal to make the repairs.
The judge observed that Lincoln Township is subject to the provisions of the Kansas Cash Basis Law. It then noted that the provisions of K.S.A. 68-124 do not provide that a township’s lack of adequate funds to repair a road creates a bar to the authority of the board of county commissioners to proceed with the repairs. The district court observed that lack of funds may, at least temporarily, prevent payment to the county for the repairs to a township road.
The judge noted thát there are provisions under the cash basis law by which an indebtedness in excess of funds on hand may be incurred, such as the issuance of bonds, temporary notes, or no fund warrants, as permitted by K.S.A. 10-1116. The judge concluded the fact Lincoln Township did not have adequate cash funds available to make repairs to the road did not justify or excuse it from making arrangements for the repair of the road or attempting to work out some arrangement with Marshall County for payment of the expenses incurred for the repairs.
Whether the cash basis law constitutes a defense against Marshall County’s claim requires this court to review the applicable statutes. There are exceptions to the cash basis law. K.S.A. 79-2938 allows expenditures for expenses in excess of a governing body’s budget through the use of no-fund warrants. No-fund warrants may be issued where, “because of unforeseen circumstances the revenues of the current budget year for any fund are insufficient to finance the adopted budget of expenditures for such fund for the current budget year.” K.S.A. 79-2938. The budget must already include the expenditures before issuance of no-fund warrants may be approved. If the township must spend more than the amount originally budgeted through the use of no-fund warrants, the township must amend its budget pursuant to K.S.A. 79-2929a.
No-fund warrants will not be authorized by the State Board of Tax Appeals except upon a finding of extreme emergency need. K.S.A. 79-5031. “The term ‘extreme emergency need’ shall include, but not be limited to, amounts required to comply with state or federal requirements in such areas as . . . public health and safety.” K.S.A. 79-5030. Clearly, the repair of roads which are not safe for travel is a duty imposed by the State on townships for the purpose of public safety.
Lincoln Township may not use the cash basis law to opt out of complying with statutorily imposed duties. Lincoln Township has not demonstrated to this court that incurring the financial obligation associated with repairing the township road pursuant to K.S.A. 68-124 is unlawful.
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The opinion of the court was delivered by
Lockett, J.:
The State appeals, claiming that the district court abused its discretion by finding that the defendant’s restitution obligation under K.S.A. 21-4610(d)(1) had been satisfied by the settlement in a civil suit.
On May 25, 1996, roadway conditions were poor. Jason C. Applegate, with a blood alcohol level of greater than .08, while driving at a speed in excess of 70 mph, attempted to pass a vehicle. There were three passengers in Applegate’s car: Chad S. Wolfe, Tyler J. Callicrate, and Heather M. Draper. Applegate’s vehicle left the roadway into a ditch, slid on the wet grass, struck a small field entrance, became airborne, landed on its top, rolled several times, and came to rest on its top. Applegate and Wolfe were injured. Draper and Callicrate were killed in the accident.
On September 23, 1996, Applegate pled guilty to two counts of involuntary manslaughter and one count of aggravated battery committed while driving under the influence of alcohol. On January 14, 1997, the district court sentenced Applegate to concurrent sentences of 36 months and ordered him to serve 30 days in the county jail prior to being placed on probation. The journal entry of judgment provided that restitution would be ordered in an amount agreed to by the parties or a hearing to set restitution would be set at a later date.
In February 1997, a settlement of civil tort claims against Applegate was reached. Applegate’s insurance carriers agreed to pay the plaintiffs (the injured victim and the parents of the deceased victims) a specified sum on behalf of Applegate. The plaintiffs agreed to release the insurance companies and Applegate from “any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever.”
On May 18, 1998, the question of restitution was heard in the criminal case. The district judge found Applegate’s restitution obligation in the criminal action had been satisfied by the settlement in the civil case and refused to order further restitution. The State appeals, claiming the district court abused its discretion in finding that the settlement entered into between the victims’ families and the defendant satisfied restitution in the underlying criminal matter.
The State asserts that a civil judgment does not affect the criminal court’s statutory mandate to order restitution. The State concedes there is no indication that the Kansas Legislature, in enacting K.S.A. 1995 Supp. 60-4304 and K.S.A. 21-4610(d)(1), intended to allow one to exceed full compensation and reap a “windfall.” The State asserts that the determination to be made in this case is not whether a windfall would occur, but how a civil judgment is credited against criminal restitution.
Applegate contends that the question is not whether restitution should have been ordered, but whether the judge abused his discretion in finding that the restitution required under K.S.A. 21- 4610(d)(1) was satisfied by the compensation the victims received in the civil action from the defendant’s insurance carriers.
Release of Claims
The first question we will consider is the effect on the criminal court of the parties’ release of claims which was executed at the settlement of the civil case.
Although judges of the district court are mandated to order restitution as a condition of probation, whether a release of claims in a civil settlement precludes a restitution order in a criminal action is a question of law. An appellate court’s review of questions of law is unlimited. Gillespie v. Seymour, 250 Kan. 123, 129, 823 P.2d 782 (1991).
The release signed by the victims in the civil action provided:
“For the Sole Consideration of One Hundred Thousand Dollars ($100,000.00), . . . the undersigned hereby release and forever discharge [Insurance Companies], Jason Applegate, and Tyler Callicrate, deceased, their heirs, executors, administrators, agents and assigns, none of whom admit any liability to the undersigned but all expressly deny any liability, from any and all claims, demands, damages, actions, causes of action or suits of any kind or nature whatsoever, and particularly on account of all injuries, known and unknown, both to person and property, which have resulted or may in the future develop from an accident which occurred on or about the 25th day of May 1996, in Cheyenne County, Kansas.”
The Kansas statutes mandate that in addition to any other conditions of probation, suspension of sentence, or assignment to a community correctional services program, the court is required to order the defendant to make reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime unless the court finds compelling circumstances which would render a plan of restitution unworkable. K.S.A. 21-4610(d)(1). A judgment of restitution does not bar any subsequent civil remedy or recovery, but the amount of any restitution paid is to be set off against any subsequent civil recovery. See K.S.A. 1995 Supp. 60-4304.
Here, the release was a contract between the victims, the defendant, and the defendant’s insurance companies, settling the defendant’s civil liability. The State was not a party to the agreement. A civil release of claims does not and cannot specifically preclude court-ordered restitution in a criminal case.
Effect of Civil Settlement
The question of the effect of a civil settlement on restitution in a criminal case is an issue of first impression in Kansas.
Restitution is not merely victim compensation but also serves the functions of deterrence and rehabilitation of the guilty. State v. Hinckley, 13 Kan. App. 2d 417, 419, 777 P.2d 857 (1989). Restitution imposed as a condition of probation is not a legal obligation equivalent to a civil judgment, but rather an option which may be voluntarily exercised by the defendant to avoid serving an active sentence. Church Mut. Ins. Co. v. Rison, 16 Kan. App. 2d 315, 318, 823 P.2d 209 (1991); see K.S.A. 21-4603d. The sentencing judge has considerable discretion in determining the amount of restitution, but the court must, pursuant to K.S.A. 21-4610(d)(1), order restitution for the offense of conviction. State v. Ball, 255 Kan. 694, 701, 877 P.2d 955 (1994).
While K.S.A. 1995 Supp. 60-4304(b) credits the restitution amount against any civil damage award, the statute does not address the converse question of whether a civil damage award may or must be credited against the restitution ordered in a criminal proceeding.
Both parties rely on State v. Iniguez, 169 Ariz. 533, 821 P.2d 194 (1991), in support of their respective positions regarding the effect of a civil settlement on criminal restitution. The Arizona statutes applicable in the Iniguez case are similar to the Kansas statutes in that, in the usual case, restitution is a mandatory condition of probation, and restitution ordered in criminal court is an offset against any subsequent civil recovery by the victim against the defendant. See Ariz. Rev. Stat. Ann. § 13-603 (1989); Ariz. Rev. Stat. Ann. § 13-804 (1989); Ariz. Rev. Stat. Ann. § 13-807 (1989).
The Iniguez court considered the purpose of restitution to determine whether a civil recovery may be applied to the defendant’s restitution requirement. The court concluded that, although reparation is one purpose of restitution, the goals and methods of restitution in a criminal case differ from those of damages in a civil action. 169 Ariz. at 536. Iniguez pointed out that one goal of restitution is rehabilitation of the convicted person. The court stated that such a requirement forces an offender “ ‘to recognize the specific consequences of his criminal activity and accept responsibility for those consequences.’ ” 169 Ariz. at 536 (quoting State v. Merrill, 136 Ariz. 300, 302, 665 P.2d 1022 [1983]).
Iniguez concluded that restitution and civil damages are independent under Arizona law. However, because restitution promotes the rehabilitative purpose of the criminal law and because civil damage payments may not be fully compensatory, the court held that a sentencing court is not automatically foreclosed from ordering some restitution simply because the victim has received some compensation as a result of a civil action. 169 Ariz. at 536.
The Iniguez court next addressed the question of whether the civil judgment affects the amount of restitution in the criminal case. The court noted that the applicable Arizona statute mandates the court to order restitution in the “full amount of the economic loss.” 169 Ariz. at 537 (quoting Ariz. Rev. Stat. Ann. § 13-603[C] [1989]). The State of Arizona’s arguments relied on the statutory provision that the criminal court must order restitution in the full amount of the economic loss suffered by the victim and argued that the Arizona Legislature intended to forbid the courts from considering civil compensation when ordering restitution in a criminal case. The defendant argued that the victim was fully compensated by the civil settlement. 169 Ariz. at 537.
The Iniguez court construed the Arizona restitution statutes in light of their purposes and determined that the legislature intended that the courts coordinate restitution ordered in criminal proceedings and civil damage recoveries to fully compensate the victim for economic loss. The court determined that the Arizona legislature did not intend to go beyond full compensation to confer a windfall on the victim. The court distinguished criminal fines, which “may be imposed to fulfill a legislative desire to inflict financial punishment,” from restitution, which has nonpunitive purposes. 169 Ariz. at 537 n.4. “Because a primary purpose of restitution is to make the victim whole, and the other aim of restitution is rehabilitative rather than punitive, payment beyond that necessary to compen sate does not serve the Legislature’s purposes.” 169 Ariz. at 537. The court concluded that although the sentencing court must consider all economic losses of the victim and must require the offender to make restitution to the full amount of the economic loss suffered by the victim, it should not order restitution exceeding the victim’s actual economic losses after crediting payments received by the victim outside the criminal proceeding. 169 Ariz. at 537.
The procedures for determining payment and the amount of restitution vary in federal and state jurisdictions from statutes such as K.S.A. 21-4610, which provide only a general statement of the legislature’s intent, to enactments such as 18 U.S.C. § 3663 (1997 Supp.), which provide a very specific statement for determining the amount and payment of restitution.
18 U.S.C. § 3663 provides, in part:
“(a)(1)(A) The court, when sentencing a defendant convicted of an offense under this title . . . may order, in addition to or, in the case of a misdemeanor, in lieu of any other penalty authorized by law, that the defendant make restitution to any victim of such offense, or if the victim is deceased, to the victim’s estate. The court may also order, if agreed to by the parties in a plea agreement, restitution to persons other than the victim of the offense.
(B)(i) The court, in determining whether to order restitution under this section, shall consider—
(1) the amount of the loss sustained by each victim as a result of the offense; and
(II) the financial resources of the defendant, the financial needs and earning ability of the defendant and the defendant’s dependents, and such other factors as the court deems appropriate.
(ii) To the extent that the court determines that the complication and prolongation of the sentencing process resulting from the fashioning of an order of restitution under this section outweighs the need to provide restitution to any victims, the court may decline to make such an order.
(2) For the purposes of this section, the term ‘victim’ means a person directly and proximately harmed as a result of the commission of an offense for which restitution may be ordered including, in the case of an offense that involves as an element a scheme, conspiracy, or pattern of criminal activity, any person directly harmed by the defendant’s criminal conduct in the course of the scheme, conspiracy, or pattern. In the case of a victim who is under 18 years of age, incompetent, incapacitated, or deceased, the legal guardian of the victim or representative of the victim’s estate, another family member, or any other person appointed as suitable by the court, may assume the victim’s rights under this section, but in no event shall the defendant be named as such representative or guardian.
(3)The court may also order restitution in any criminal case to the extent agreed to by the parties in a plea agreement.
“(b) The order may require that such defendant—
(1)in tire case of an offense resulting in damage to or loss or destruction of property of a victim of the offense-—
(A) return the property to the owner of the property or someone designated by the owner; or
(B) if return of the property under subparagraph (A) is impossible, impractical, or inadequate, pay an amount equal to the greater of—
(1) the value of the property on the date of the damage, loss, or destruction, or
(ii) the value of the property on the date of sentencing, less the value (as of the date the property is returned) of any part of the property that is returned;
(2) in the case of an offense resulting in bodily injury to a victim including an offense under chapter 109A or chapter 110—
(A) pay an amount equal to the cost of necessary medical and related professional services and devices relating to physical, psychiatric, and psychological care, including nonmedical care and treatment rendered in accordance with a method of healing recognized by the law of the place of treatment;
(B) pay an amount equal to the cost of necessary physical and occupational therapy and rehabilitation; and
(C) reimburse the victim for income lost by such victim as a result of such offense;
(3) in the case of an offense resulting in bodily injury also results in the death of a victim, pay an amount equal to the cost of necessary funeral and related services;
(4) in any case, reimburse the victim for lost income and necessary child care, transportation, and other expenses related to participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense; and
(5) in any case, if the victim (or if the victim is deceased, the victim’s estate) consents, make restitution in services in lieu of money, or make restitution to a person or organization designated by the victim or the estate.”
Restitution ordered in criminal proceedings and civil damages are separate and independent remedies under Kansas law. K.S.A. 21-4610(d)(1) provides a general statement of legislative intent, requiring the sentencing court to exercise discretion in ordering reparation or restitution to the aggrieved party for the actual damage or loss caused by the defendant’s crime. In addition, the district judge must have some basis for determining the amount of dam ages, but the same rigidness and proof of value required in a civil action does not apply to determining restitution. Hinckley, 13 Kan. App. 2d at 419. The judge’s order of restitution in a criminal action does not bar a victim from seeking damages in a separate civil action. Likewise, the judge, when sentencing a defendant in a criminal action, is not foreclosed from ordering restitution just because the victim has received compensation in a civil action.
In Hinckley, the question was whether an insurer, which had a contractual obligation to pay a sum of money to the victim that exceeded the victim’s actual loss suffered, could recover a greater sum than the victim could receive as restitution. The Hinckley court stated that K.S.A. 21-4610(4)(a) (Ensley 1988) (now 21-4610[d][1]) provided the sentencing court discretion in ordering reparation or restitution to the aggrieved party for the damage or loss caused by the defendant’s crime. It noted that the measure of reparation or restitution, pursuant to 21-4610(d)(1), is the amount required to reimburse the victim for the actual loss suffered. 13 Kan. App. 2d 417, Syl. ¶¶ 1, 2.
The Hinckley court determined that an insurer, which has assumed a contractual obligation to pay a sum of money to the victim that exceeds the actual loss suffered by the victim, stands in the shoes of the victim and cannot recover a greater sum than the victim could recover. 13 Kan. App. 2d 417, Syl. ¶ 3.
Did the district judge abuse his discretion in ordering that the settlement in the civil action satisfied the statutory requirement for restitution in the criminal proceeding? Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. State v. Davidson, 264 Kan. 44, 56, 954 P.2d 702 (1998). See Saucedo v. Winger, 252 Kan. 718, 850 P.2d 908 (1993), for a detailed discussion of judicial discretion.
The sentencing judge has considerable discretion in determining the amount of restitution. The measure of reparation or restitution to be ordered, pursuant to K.S.A. 21-4610(d)(1), is the amount that reimburses the victim for the actual loss suffered. Here, the parties in the civil action agreed that the sum of $100,000 paid by the defendant’s insurer satisfied all claims arising from the accident. Under these circumstances, the district judge did not abuse his discretion in finding that the settlement in the civil action satisfied the statutory requirement for restitution in the criminal proceeding.
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Per Curiam:
This is an original uncontested attorney discipline case filed by the office of the Disciplinary Administrator against Ronald J. Fey, Jr., of Raymore, Missouri, an attorney licensed to practice law in Kansas. The complaint alleged that Fey had violated MRPC 1.3 (1998 Kan. Ct. R. Annot. 288) (diligence); MRPC 1.15 (1998 Kan. Ct. R. Annot. 333) (safekeeping property); MRPC 3.4(c) (1998 Kan. Ct. R. Annot. 357) (fairness to opposing party and counsel); MRPC 5.2 (1998 Kan. Ct. R. Annot. 371) (responsibilities of a subordinate lawyer); and MRPC 8.4(b), (c), and (d) (1998 Kan. Ct. R. Annot. 386) (misconduct). The complaint also alleged that Fey violated Supreme Court Rules 207 (1998 Kan. Ct. R. Annot. 222), 208 (1998 Kan. Ct. R. Annot. 228), 211(b) (1998 Kan. Ct. R. Annot. 233), and 802 (1998 Kan. Ct. R. Annot. 512). The Disciplinary Administrator recommended to the panel that Fey be suspended from the practice of law for an indefinite period.
The facts are not in dispute. In January and February 1997, Fey was an associate in the James L. Farmer law firm of Kansas City, Kansas. (Farmer subsequently was indefinitely suspended in 1997 for multiple severe violations of the Model Rules of Professional Conduct.) Fey’s practice included representing clients in bankruptcy cases. On January 2, 1997, and January 17, 1997, Fey filed three chapter 7 bankruptcy petitions in federal Bankruptcy Court in Kansas City, Kansas. The filing fees for the petitions were paid with checks drawn on Fey’s operating account. The three checks were later dishonored by Fey’s bank and returned unpaid to the bankruptcy court.
The bankruptcy court advised Fey of the dishonored checks and warned Fey of the possibility that his clients’ cases would be dismissed if he failed to redeem the checks within 10 days of the notice. In addition, Fey was assessed a.retum fee of $25 per check. Fey failed to redeem the checks within the 10-day period.
As to two of the three dishonored checks, the bankruptcy court issued a show cause order, and the matter was set for hearing on February 19, 1997. Fey failed to appear. The hearing was continued to March 19, 1997. Fey redeemed the checks and paid the fees later the morning of February 19, 1997.
The show cause hearing was held on March 7, 1997. Although Fey again failed to appear, the court was advised that the checks for the filing fee and return check fees had been paid by Fey. The court sanctioned Fey by ordering him to pay $200 for his failure to appear. The court further ordered that no future filing fees should be accepted from Fey except by cash or certified funds. The clients’ petitions were not dismissed.
A show cause hearing regarding , the third check was held on March 19, 1997. Fey and his client appeared before the court. After noting that all the checks and returned check fees had been paid prior to the hearing, the court sanctioned and fined Fey an additional $200 for failure to comply with the rules and regulations of the court. The court suspended Fey’s right to issue checks to the court and ordered Fey to remit the $200-to the court within 10 days of the order. The client’s petition was not dismissed.
The bankruptcy court referred the matter to the office of the Disciplinary Administrator. On July 8, 1998, the matter was heard. The Disciplinary Administrator appeared by Marty Snyder, Deputy Disciplinary Administrator. Fey failed to appear.
Snyder advised the panel that Fey had contacted her the day prior to the hearing and informed her that he was not practicing law, had not practiced law for a year, and had no intention to practice law in the future. However, Fey requested that Snyder communicate to the panel his desire to keep his license to practice law and not be disbarred from the practice of law. Fey indicated to Snyder that he desired to attend the panel hearing; however, he would not attend because he could not afford to take the morning off from his job as a carpenter.
Richard Wieland of the United States Trustee’s office testified on behalf of the Disciplinary Administrator. Snyder pointed out to the panel that Fey was administratively suspended from the practice of law in Kansas on November 5, 1997, by the Clerk of the Appellate Courts because Fey had failed to pay the attorney registration fee and to fulfill the continuing education requirements for 1997.
Before recommending sanction, Snyder observed that indefinite suspension, unlike suspension for a definite period of time, would require Fey to apply for reinstatement should he decide to resume practicing law in Kansas. She pointed out that the reapplication process includes an evidentiary hearing to determine whether reinstatement is appropriate. She further stated that, although this case is quite serious, it does not rise to the level where disbarment is the appropriate sanction. Snyder requested that the panel recommend to the Kansas Supreme Court that Fey be disciplined pursuant to Supreme Court Rule 211(f).
The' panel then reviewed the factors provided in the ABA Standards for Imposing Lawyer Sanctions including: (1) whether the lawyer has violated a duty owed to a client, to the public, to the legal system, or to the profession; (2) whether the lawyer acted intentionally, knowingly, or negligently; (3) the amount of the actual or potential injury caused by the lawyer’s misconduct; and (4) the existence of aggravating or mitigating factors.
The panel noted that it was clear that Fey did not safekeep his clients’ property; his conduct had placed his clients’ cases in jeopardy; he did not promptly respond to the orders of the court; and he did not initially cooperate with the disciplinary process. Regarding aggravating factors, the panel found a pattern of misconduct; multiple offenses; bad faith obstruction of the disciplinary proceeding; vulnerability of the victims (Fey’s clients); and illegal conduct (insufficient funds checks). As no mitigating evidence was presented, no mitigating factors were found by the panel.
The panel found that Fey had violated MRPC 1.3, MRPC 1.15, MRPC 3.4(c), and MRPC 8.4(b), (c), and (d). The panel also found that Fey violated Supreme Court Rules 207, 208, 211(b), and 802. The panel recommended that Fey be suspended from the practice of law for an indefinite period and that costs be assessed against Fey in an amount to be certified by the Disciplinary Administrator.
After the final hearing, the panel recommended discipline as prescribed by Rule 203(a)(1), (2), (3), or (5) (1998 Kan. Ct. R. Annot. 210). The report, findings, and recommendations of the panel together with the complaint, answer, and transcript, were filed with the Clerk of the Appellate Courts, and the matter proceeded as provided by Rule 212 (1998 Kan. Ct. R. Annot. 236).
Upon docketing of the case, the Clerk of the Appellate Courts mailed a copy of the report to Fey. The Clerk issued a citation directing Fey to file with the Clerk either (1) a statement that he did not wish to file exceptions to the report, findings, and recommendation, or (2) his exceptions to the report. Any part of the hearing report not specifically excepted would be deemed admitted.
Fey failed to file exceptions to the report within 20 days of the mailing. Therefore, the findings of fact in the report were deemed to be admitted. The Supreme Court fixed a time and place for the imposition of discipline. The Clerk of the Appellate Courts notified Fey by registered or certified mail of such time and place. Fey failed to appear in person and to make a statement with respect to the discipline to be imposed as required.
After a careful review of the record and oral argument, we concur in the findings and conclusions of the hearing panel. The court finds that Fey should be indefinitely suspended from the practice of law; however, a minority of the court believes Fey should be disbarred.
It Is Therefore Ordered that Ronald J. Fey, Jr., be and he is hereby disciplined by indefinite suspension for his violations of the Model Rules of Professional Conduct.
It Is Further Ordered that Ronald J. Fey, Jr., shall prior to the filing of a petition for reinstatement comply with Rule 218 (1998 Kan. Ct. R. Annot. 246).
It Is Further Ordered that the costs of these proceedings be assessed to Fey and that this order be published in the official Kansas Reports. | [
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Per Curiam,-.
Shannon Aguilar pleaded guilty to possession of cocaine in a constructive possession case. Before sentencing, she moved to withdraw her plea. She claimed, among other things, that her counsel had a conflict of interest because of his concurrent representation of Aguilar’s codefendant. The trial court denied her motion, and the Court of Appeals affirmed. State v. Aguilar, 95,249 unpublished opinion filed February 16, 2007. This court granted Aguilar’s petition for review.
Factual and Procedural Background
Police in Kansas City, Kansas, pulled over a vehicle for the driver’s failure to use a turn signal. The driver was Leona Ayalla; Aguilar was the only passenger. Ayalla was a close family friend whom Aguilar referred to as her “aunt.” During the stop, the officers learned of an outstanding warrant for each woman and arrested both. An inventory search of the vehicle revealed three baggies of cocaine under Aguilar’s passenger seat. While searching Ayalla, police found an additional two bags of cocaine and two bags of crystal methamphetamine inside her bra.
Ayalla was charged with possession of cocaine, possession of methamphetamine, and possession of a controlled substance without a tax stamp. Aguilar was charged only with possession of cocaine.
Both women retained Jeff Carlin as defense counsel. Carlin gave them a “deal,” agreeing to handle both clients’ criminal cases for $1,500 total if they both pleaded guilty, and for $3,000 total if they chose to go to trial. Three days before Aguilar entered her plea, Carlin filed a motion to withdraw from his representation of Aguilar. According to the motion, Aguilar had failed to pay the agreed attorney fees, which made it “impossible for movant to zealously represent Defendant as is ethically required of an attorney licensed to practice law in the State of Kansas.”
Despite this motion, Carlin represented both women at their joint plea hearing 3 days later. There, Ayalla pleaded guilty to one count of possession of cocaine; the State dismissed all of the other charges against her. Aguilar also pleaded guilty to possession of cocaine, the only charge against her. The record contains no mention whatsoever of any discussion or disposition of Carlin’s motion to withdraw. Aguilar signed a plea agreement, which indicated that she was represented by Carlin, that she was satisfied with the advice he had given her, and that the maximum punishment she faced was 42 months’ imprisonment plus a $100,000 fine.
During the plea hearing, the court conducted a plea colloquy, confirming with Ayalla and Aguilar in succession that each had reviewed her plea agreement with Carlin and that neither defend ant had any complaints about his representation. Both women agreed that the State could present the evidence outlined by the prosecutor.
After questioning each codefendant, the court found that the women “voluntarily, knowingly, and understanding^ waived their constitutional rights and enter[ed] their plea of guilty, that there’s a factual basis for the plea, and that they understand the nature of the charges and the consequences of the pleas.” At no point in the hearing, however, did the court inform Aguilar pursuant to K.S.A. 22-3210(a)(2) of the maximum punishment she faced for her crime.
Within days, Aguilar informed Carlin that she wished to withdraw her plea. At a previously scheduled sentencing hearing before a different district judge, Carlin informed the court of Aguilar’s request. Because Aguilar now wished to “present to the court a conflicting defense” by withdrawing her plea, Carlin said he believed that he could not represent both defendants and requested to withdraw. The judge allowed Carlin to do so and appointed Craig Lubow to represent Aguilar. Per the State’s request, the judge then reassigned the case to the judge who had taken Aguilar’s original plea.
Approximately 3 weeks later, Lubow submitted a formal motion to withdraw Aguilar’s plea. The motion claimed that she was not guilty of the crime charged, that she entered the plea under duress, and that she had ineffective assistance of counsel during the plea hearing and the negotiations leading to it. According to the motion, Aguilar “felt pressured to enter the plea” because “die codefendant is her ‘aunt’, although not biologically related.” The motion also claimed Carlin had a conflict of interest because of his simultaneous representation of Aguilar and Ayalla. Included in this claim was an assertion that Carlin told Aguilar that a plea by both defendants would save Aguilar substantial legal fees she could not afford.
The court held a hearing on the motion to withdraw Aguilar’s plea the same day. Lubow first advised the court that Aguilar had stated that she wanted to withdraw her plea ahead of sentencing before a different judge, and “it was sent back down here for you to consider that.” The judge replied: “I have reviewed the motion.”
Among other contentions presented at the hearing,- Lubow argued that Aguilar “had ineffective assistance of counsel during the plea negotiations” because Carlin, “was representing the codefen-dant simultaneously, and there was a conflict of interest there.” He cited State v. Taylor, 266 Kan. 967, 975 P.2d 1196 (1999), and State v. Ryan, 29 Kan. App. 2d 297, 26 P.3d 707, rev. denied 272 Kan. 1422 (2001). Lubow further argued that, “when the trial court becomes aware of a possible conflict of interest between an attorney and a defendant charged with a felony, the court has a duty to inquire further,” again citing Taylor. Because “the Court was aware that Jeff Carlin was representing two codefendants” at the plea hearing and because “there was no inquiry as to whether or not that created a conflict of interest,” Lubow requested that Aguilar’s plea be set aside. Lubow also told the judge that the drugs were Ayalla’s, not Aguilar’s, and that Aguilar had pleaded as charged, with no concession by the State. Lubow argued “that she did feel duress and was not wanting to do the plea at the time, but was pressured to do that, and would not have done that if she had separate counsel.”
The State responded that the court had conducted the usual plea colloquy during the plea hearing and that Aguilar had said she was satisfied with Carlin’s performance. The State also argued that there was no evidence of conflict of interest.
Aguilar provided brief testimony at the hearing after counsels’ arguments. Among other things, Aguilar testified that she had felt financial and personal pressure to plead guilty as a result of her relationship with Ayalla and her inability to pay Carlin’s higher trial fees: “$750 apiece only if we pled the same plea.” (Emphasis added.) Aguilar suggested that she felt pressure because she believed a not guilty plea would lead to her charge being added to her aunt’s charges. Ayalla was already in jail while Aguilar stayed with Ayalla’s children. “I did not [have] any idea that she [Ayalla] was going to get all that stuff dropped, or I would not have pled guilty.” On cross-examination, she acknowledged that she had told the court during the plea hearing that she thought Carlin’s services were satisfactoiy.
Carlin did not testify, nor was he present at the hearing. The only explanation for his absence is found in the State’s appellate brief, which states “there was not [an] opportunity to bring Mr. Carlin before the court” because Aguilar’s written motion was not delivered to the State until the day of the hearing.
At the close of the plea withdrawal hearing, the judge ruled from the bench, denying Aguilar’s motion to withdraw her plea saying:
“Ms. Aguilar, tire dilemma die Court faces now is, I have to determine when you were telling die truth, were you telling me the truth in your responses on the day we took the plea, or are you telling the truth today. I have a hard time finding— really now, at this point, knowing when you were telling the truth. I spent thirteen pages and about 15 minutes going — asking you and your codefendant various questions about the plea. I had you under oath. You made what seemed to be appropriate responses and I thought, at the time, truthful responses; and frankly, at this time, I still think they were truthful. I think you — either because you don’t want to do the [drug] treatment or you don’t want to be on probation — I don’t know what the reason is; but I think that the plea was voluntarily given — given without any threats, any promises. The fact that you say you’re not guilty now, when you clearly stated to me that you were guilty, hasn’t changed my mind. I don’t think you were under duress. And — and fourth' — the fourth reason, that Mr. Carlin gave you ineffective assistance of counsel — I’ve had Mr. Carlin in this courtroom a lot of times. I think he does a good job. And in addition to me going through this 15 minute recitation, Mr. Carlin also presented to me a plea petition, which he had gone over with you; and I asked you, ‘Did you go over the plea petition?’ In fact, I asked you if you had any questions concerning the plea petition, anything in there you didn’t understand that you would like the court to explain to you; and you said no. So you had really two lengthy opportunities to tell the truth, if you weren’t telling the truth. One was after Mr. Carlin asked you the questions and then when the Court asked them. So you’re asking me to believe that you were not telling the truth on that day but you’re telling the truth today. The Court is not going to accept that. And I don’t — I don’t feel, at this time, that a case has been presented to set aside the plea, and the plea will — -the Motion to Withdraw Plea is considered and denied. That will be the order.”
Analysis
The decision to grant or deny a motion to withdraw a guilty plea is governed by K.S.A. 22-3210(d):
“A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before sentence is adjudged. To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea.”
K.S.A. 22-3210(d) sets forth two standards by which courts evaluate motions to withdraw pleas. Before sentencing, the courts have discretion to permit withdrawal of pleas if a defendant shows “good cause.” After sentencing, the courts may permit a plea withdrawal only when the plea results in “manifest injustice.” Because Aguilar moved to withdraw her guilty plea before sentencing, the district judge was required to determine in his discretion whether she demonstrated good cause for withdrawal. “[I]n order for the district court’s decision to receive the full measure of that standard’s deference, [that decision] must have been based upon a correct understanding of the law.” State v. Schow, 287 Kan. 529, 541, 197 P.3d 825 (2008).
Our cases dealing with presentence and postsentence motions to withdraw have sometimes invoked and sometimes not invoked three factors to be considered: (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 understanding^ made. Compare Schow, 287 Kan. at 542-43 (reciting three factors as standard for evaluating presentence motion); State v. Green, 283 Kan. 531, 546, 153 P.3d 1216 (2007) (reciting three factors as standard for evaluating postsentence motion); and State v. Moses, 280 Kan. 939, 950-55, 127 P.3d 330 (2006) (factors not mentioned in evaluating postsentence motion); State v. Vasquez, 272 Kan. 692, 36 P.3d 246 (2001) (factors not mentioned in evaluating presentence motion).
This court has recently referred to these three considerations as the “Edgar factors” — after State v. Edgar, 281 Kan. 30, 36, 127 P.3d 986 (2006), in which this court applied these standards to evaluate a defendant’s presentence motion to withdraw a plea. See Schow, 287 Kan. at 546. The factors long predate Edgar, however. In fact, they appear to have been based on this court’s decision in State v. Nichols, 167 Kan. 565, 577, 207 P.2d 469 (1949), in which the court stated: “When the accused is represented by capable counsel and the plea is freely, fairlyf,] and intelligently made, and its consequences understood, it should not be set aside. When some or all of these factors are lacking, common justice may au thorize or require the setting aside of the plea.” Nichols was decided before the adoption of the modem code of criminal procedure, which sets forth the good cause and manifest injustice standards for motions to withdraw pleas. See Vasquez, 272 Kan. at 695; Nichols, 167 Kan. 565, Syl. ¶ 4 (“We have no statute specifically pertaining to motions to withdraw pleas of guilty in criminal cases. The matter is handled in each case upon principles of natural justice as applied to the facts of the case and the legal situation.”).
Our previous inconsistent adherence to the Edgar factors to inform the standard for considering motions to withdraw pleas— regardless of whether the statutory language requires good cause or manifest injustice — has no doubt been confusing for practitioners and the district bench. In Schow, we finally and explicitly recognized the distinction drawn in the statutory language, characterizing good cause for presentence motions as a “lesser standard” for a defendant to meet, when compared to manifest injustice for a defendant advancing a postsentence motion. Schow, 287 Kan. at 541. This legislative choice is sensible and appropriate. The longer a defendant waits to file a plea withdrawal motion, the more the State’s case is likely to weaken, if not evaporate. Certainly the plea withdrawal statute was not intended to be a tool for temporal manipulation; if a defendant is going to hold the State to its beyond-a-reasonable-doubt burden of proof before a jury, he or she should not be able to delay the process indefinitely by entering a guilty or nolo contendere plea and then easily withdrawing it when the timing is opportune.
At least one more clarifying step beyond Schow is necessary to decide this case.
The Edgar factors remain viable benchmarks for judicial discretion but rebanee on them to the exclusion of other factors has not only conflated the good cause and manifest injustice standards of K.S.A. 22-3210(d) but also may have overemphasized the role of plea counsel’s competence in deciding presentence plea withdrawal motions. Although the Edgar factors permit counsel’s competence or lack thereof to be one consideration when the motion is filed in the time period between conviction and sentencing, they should not be mechanically applied to demand that a defendant demonstrate ineffective assistance arising to the level of a violation of the Sixth Amendment. That level of proof may be suitable when the vehicle for relief is a K.S.A. 60-1507 motion attacking a defendant’s sentence; and it may be logical and fair to equate the K.S.A. 22-3210(d) manifest injustice standard governing a post-sentence plea withdrawal motion to the high burden imposed on a constitutional claim of ineffective assistance. Compare Strickland v. Washington, 466 U.S. 668, 687, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); Bold-ridge v. State, 289 Kan. 618, 215 P.3d 585 (2009) (referencing Kansas’ use of Strickland standard of deficient performance plus prejudice); with Mickens v. Taylor, 535 U.S. 162, 168, 152 L. Ed. 2d 291, 122 S. Ct. 1237 (2002) (ineffective assistance based on conflict of interest requires showing of existence of conflict with actual effect on representation); Boldridge, 289 Kan. at 622-23 (employing Mickens’ softened Strickland standard to K.S.A. 60-1507 motion alleging ineffective assistance based on conflict between defendant, counsel). We note, however, that the plain language of the statute — “for good cause shown and within the discretion of the court” — should not be ignored. A district court has no discretion to fail to remedy a constitutional violation.
It is neither logical nor fair to equate the lesser K.S.A. 22-3210(d) good cause standard governing a presentence plea withdrawal motion to the high constitutional burden. The Edgar factors do not transform the lower good cause standard of the statute’s plain language into a constitutional gauntlet. Merely lackluster advocacy — or, as here, evidence of an insurmountable conflict of interest among jointly represented codefendants that is ignored by a district judge — may be plenty to support the first Edgar factor and thus statutory good cause for presentence withdrawal of a plea. All of the Edgar factors need not apply in a defendant’s favor in every case, and other factors may be duly considered in the district judge’s discretionary decision on the existence or nonexistence of good cause.
Here, Aguilar sought to withdraw her plea in part on the basis that her attorney had a conflict of interest arising out of his concurrent representation of Aguilar’s codefendant. At the plea hearing in this case, Carlin failed to address on the record his pending motion to withdraw — based on Aguilar s failure to pay her share of Carlin’s fees, which, the motion claimed, had made it “impossible” for him “to zealously represent” her — and its possible correlation to her guilty plea entered only 3 days later. Carlin also failed to put on the record anything concerning his disclosure of the danger of joint representation of two defendants in a constructive possession drug case or his clients’ waivers of the conflict of interest. See Mickens, 535 U.S. at 175 (multiple representation is “inherently suspect”); State v. Gleason, 277 Kan. 624, 650, 88 P.3d 218 (2004) (same); see also ABA Standards Relating to the Defense Function, section 4-3.5(c), from ABA Standards for Criminal Justice: Prosecution Function and Defense Function (3d ed. 1993) (potential for conflict of interest in representing multiple defendants is so grave that ordinarily defense counsel should decline to act for more than one; exception when, after careful investigation, clear either that no conflict likely to develop at trial, sentencing, or any other time, or common representation will be advantageous). The district judge likewise failed to inquire at the plea hearing about Carlin’s pending motion to withdraw over unpaid fees. It should have been evident to the district judge immediately from the colloquy with counsel and defendants that Carlin represented both women. It also should have been clear to the district judge that the case involved the constructive possession of illegal drugs and that Aguilar and Ayalla were the only occupants of the vehicle where the drugs were found. We observe that a number of courts have found these and similar circumstances created an actual conflict of interest. See, e.g., McFarland v. Yukins, 356 F.3d 688, 701-02 (6th Cir. 2004); Williams v. Jones, 391 F. Supp. 2d 603, 611 (E.D. Mich. 2005); Fitzgerald v. United States, 530 A.2d 1129, 1139 (D.C. App. 1987); State v. Ryan, 29 Kan. App. 2d. 297, 26 P.3d 707, rev. denied 272 Kan. 1422 (2001). Indeed, we believe the conflict in such a situation to be not only actual but insurmountable. The fact that Ayalla received dismissal of additional charges while Aguilar pleaded guilty as charged intensifies our concern.
At least some of these problems in Aguilar’s plea hearing had the potential to be corrected or ameliorated once she had been given new counsel. Unfortunately, this potential was not realized. At the hearing on her motion to withdraw plea, there should have been no doubt whatsoever as to the main issue to be addressed: the conflict of interest between the codefendants in a constructive drug possession case and whether it warranted withdrawal of Aguilar’s guilty plea for good cause shown. But the district judge exhibited no awareness of the governing legal standards. He gave no indication that he correctly applied those standards in this particular case. Instead of addressing the conflict of interest and its influence on the first of the Edgar factors, the court merely stated: “I’ve had Mr. Carlin in this courtroom a lot of times. I think he does a good job.” This mere acquaintance with Carlin’s earlier performances and the judge’s awareness that Aguilar had reviewed the plea agreement with her counsel were not enough. The inequalities in Aguilar’s and Ayalla’s positions were ignored, as was the financial pressure placed on Aguilar by Carlin’s package deal for her representation, good only as long as she remained joined at the hip to Ayalla.
The district judge’s failure to apply the appropriate standards in the plea withdrawal hearing was an abuse of discretion requiring reversal and remand so that Aguilar may withdraw her plea and the State may pursue any additional proceedings it sees fit to pursue. Under the particularly egregious facts of this case — in which the conflict of interest between die defendant and her jointly represented codefendant was insurmountable, and the record reveals no sufficient disclosure by counsel and waiver by the client — -Aguilar met her burden to show good cause to grant her presentence motion to withdraw her plea under K.S.A. 22-3210(d). No additional district court hearing on the motion is necessaiy.
Reversed and remanded.
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The opinion of the court was delivered by
Davis, C.J.:
Deanna Gilley was convicted of three counts for forgery. Relying on two prior forgery convictions, the district court sentenced her for a third forgery conviction under the progressive sentencing scheme set forth in K.S.A. 21-3710(b)(4), which requires 45 days’ imprisonment as a condition of probation and a fine that is the lesser of the amount of the forged instrument or $2,500. The defendant successfully objected to a criminal history being category E. The court modified her criminal history to category G based upon the provisions of K.S.A. 21-4710(d)(ll), stating that “[p]rior convictions of any crime shall not be counted ... if they enhance the . . . applicable penalties.” The Court of Appeals vacated her sentence and remanded the case for imposition of sentence with a criminal history of E. We granted defendant’s petition for review, reverse the decision of the Court of Appeals, and affirm the judgment of the district court.
Facts
Upon complaint filed in Reno County in case No. 07 CR 297, Gilley was charged with three counts of forgery under the provisions of K.S.A. 21-3710(a)(l). Pursuant to a plea agreement and on June 28, 2007, defendant entered a plea of no contest to Counts 1,2, and 3. There is no mention in the charging document of K.S.A. 21-3710(b), which sets forth the progressive sentencing scheme for a first forgery conviction, a second forgery conviction, and a third or subsequent forgery conviction. The record establishes that defendant did not object to the charges in the complaint. Nor has the defendant raised any concern with the charging document, and we therefore do not address any issue dealing with the complaint filed.
It is apparent from the record that the State, the defendant, and the district court treated each of the three counts in the complaint as a third forgeiy conviction, requiring the defendant “to serve at least 45 days’ imprisonment as a condition of probation, and a fine the lesser of the amount of the forged instrument or $2,500.” K.S.A. 21-3710(b)(4). The presentence investigation report reflects this fact, as well as the journal entry of sentence for the three counts of forgery. In addition, the transcript of the sentencing hearing specifies that each count was considered as a third forgery conviction. The sentence for each count was imposed to run concurrently.
The defendant had three prior forgery convictions in case No. 06 CR 678 on December 1, 2006. Based upon her current forgery convictions and her three prior felony forgery convictions, the pre-sentence investigation report identified her criminal histoiy as category E based upon counting four nonperson felony forgeiy convictions. The defendant objected, claiming that two of her 2006 forgeiy convictions were used to elevate Count 1 in her present case to a third forgeiy conviction under K.S.A. 21-3710(b)(4). Thus, according to her argument, these two prior forgery convictions could not be counted in her criminal histoiy under K.S.A. 21-4710(d)(ll) because the two prior convictions served to enhance the penalty under Count 1 by requiring a mandatory 45 days in jail as a condition of her probation.
The district court agreed and modified her criminal history from categoiy E (three or more nonperson felonies) to category G (one nonperson felony). The trial court rejected the State’s argument that the mandatory 45 days in jail as a condition of probation did not enhance the penalty under Count 1 and also rejected the argument that her present three forgeiy convictions could serve as a justification for treating her convictions in the present case as third or subsequent convictions.
On the State’s appeal, the Court of Appeals determined that Gilley’s three forgery convictions were sufficient to warrant the district court sentencing her as a person with a third forgery conviction, thereby making all three of her prior forgery convictions in case No. 06 CR 678 available for use in computing her criminal history:
“Here, a third conviction existed at the time Gilley was sentenced in No. 07CR297 simply due to the three counts of forgery contained therein, to which Gilley pled guilty. The district court, by virtue of those three convictions, was required to sentence Gilley to the 45-day imprisonment term as a condition of her probation. Gilley’s criminal history at the time of sentencing on No. 07CR297 should have included the three prior forgeries because none of those convictions were used to impose the mandatory jail term.” Gilley, slip op. at 4.
Thus, the Court of Appeals vacated her sentence and remanded the case with directions that defendant be resentenced with a criminal history of E (three or more nonperson felonies). Gilley, slip op. at 4-5. Because the Court of Appeals reversed on this issue, it found it unnecessary to consider the State’s argument that the 45-day term of imprisonment as a condition of Gilley’s probation did not constitute an enhancement of the penalty under K.S.A. 21-4710(d)(ll). Gilley, slip op. at 5.
We granted Gilley’s petition for review wherein she claims that the trial court properly determined her criminal history was category G. Her claim incorporates three questions: (1) Did Gilley’s three current forgery convictions in case No. 07 CR 297 provide a basis for treating her forgery conviction in Count 1 as a third conviction; (2) did the use of a conviction for both the purposes of the progressive sentencing scheme under K.S.A. 21-3710(b) and the calculation of a defendant’s criminal history violate K.S.A. 21-4710(d)(ll); and (3) did the trial court err in setting defendant’s criminal history as category G? Gilley’s case was heard concurrently with State v. Arnett, 290 Kan. 41, 223 P.3d 780 (2010), because both cases raise the same questions for our review.
(1) Did defendant’s three current forgery convictions IN CASE No. 07 CR 297 PROVIDE A BASIS FOR TREATING HER FORGERY CONVICTION IN COUNT 1 AS A THIRD CONVICTION?
The defendant was charged with three counts of forgery under K.S.A. 21-3710(a). As noted above, there was no indication in the complaint whether the three counts were charged as third offenses under the progressive sentencing scheme set forth in K.S.A. 21-3710(b)(4). However, we are able to determine from the record as a whole that Count 1 in the complaint was treated as a third conviction based upon defendant’s plea to the charge. While not crystal clear, it appears that all three of the charges were treated as third convictions upon defendant’s plea to all charges in the complaint.
It is clear from the record that when the defendant entered her plea to Count 1 of the complaint, the two remaining counts were criminal charges, not criminal forgery convictions. Thus, the remaining two charges could not serve as a basis for making defendant’s plea to Count 1 a third conviction under K.S.A. 21-3710(b)(4). We conclude that defendant’s three forgery convictions in the present complaint under the facts of this case could not serve as a basis for her plea to Count 1 being a third conviction under K.SA. 21-3710(b)(4).
(2) Did the use of a conviction for both the purposes of THE PROGRESSIVE SENTENCING SCHEME UNDER K.S.A. 21-3710(b) AND THE CALCULATION OF A DEFENDANT’S CRIMINAL HISTORY VIOLATE K.S.A. 21-4710(d)(ll)?
Based upon our resolution above, there existed three prior forgery convictions of the defendant that the court could use to sentence her for a third conviction under Count 1 in case No. 07 CR 297 for a third forgery conviction under the provisions of K.S.A. 21-3710(b)(4). The record clearly establishes that the trial court utilized two of her prior forgery convictions for the purpose of establishing that defendant’s plea to Count 1 resulted in a third conviction under K.S.A. 21-3710(b)(4). The question arises whether the two prior forgery convictions enhance the penalty for the defendant’s conviction of Count 1 under K.S.A. 21-4710(d)(ll) and therefore could not be included in defendant’s criminal history.
This case calls on us to interpret two statutes: K.S.A. 21-3710(b) and K.S.A. 21-4710(d)(ll). K.S.A. 21-3710 defines the crime of forgery under Kansas law. K.S.A. 21-3710(b)(l) states that “[florgery is a severity level 8, nonperson felony.” K.S.A. 21- 3710(b)(2) through (b)(5) define a progressive sentencing scheme based on the number of forgery convictions that a particular person may have incurred. Those sections provide:
“(2) On a first conviction of a violation of this section, in addition to any other sentence imposed, a person shall be fined the lesser of the amount of the forged instrument or $500.
“(3) On a second conviction of a violation of this section, a person shall be required to serve at least 30 days’ imprisonment as a condition of probation, and fined the lesser of the amount of the forged instrument or $1,000.
“(4) On a third or subsequent conviction of a violation of this section, a person shall be required to serve at least 45 days’ imprisonment as a condition of probation, and fined tire lesser of the amount of the forged instrument or $2,500.
“(5) The person convicted shall not be eligible for release on probation, suspension or reduction of sentence or parole until the person has served the mandatory sentence as provided herein.” K.S.A. 21-3710(b)(2)-(5).
Gilley was sentenced under K.S.A. 21-3710(b)(4), which requires as a condition of probation a minimum of 45 days in prison and a fine in the lesser amount of either the forged instrument or $2,500.
K.S.A. 21-4710, which defines a defendant’s criminal history for purposes of the Kansas sentencing grid, provides in relevant part:
“Prior convictions of any crime shall not be counted in determining the criminal history category if they enhance the severity level or applicable penalties .... Except as otherwise provided, all other prior convictions will be considered and scored.” (Emphasis added.) K.S.A. 21-4710(d)(ll).
K.S.A. 21-4710(a) defines “prior convictions” as
“any conviction, other than another count in the current case which was brought in the same information or complaint or which was joined for trial with other counts in the current case pursuant to K.S.A. 22-3203 and amendments thereto, which occurred prior to sentencing in the current case regardless of whether the offense that led to the prior conviction occurred before or after the current offense or the conviction in the current case.”
See State v. Ruiz-Reyes, 285 Kan. 650,655-56,175 P.3d 849 (2008) (discussing this provision and noting that it explicitly states that previous convictions finalized after a crime is committed but before sentencing for that crime may be used to determine criminal history).
It is clear from these provisions that in both of the cases now subject to review, the three forgery convictions obtained in each of those cases cannot be used to calculate criminal history since they all constitute other “count[s] in the current case . . . brought in the same information or complaint.” K.S.A. 21-4710(a). Likewise, K.S.A. 21-3710(b)(l) states that no matter how many forgeries a person commits, the crime of forgery is always a severity level 8 nonperson felony. Thus, the question before us today is whether the progressive sentencing scheme in K.S.A. 21-3710(b) enhances the “applicable penalties” for the underlying forgery offense. K.S.A. 21-4710(d)(ll).
Standard of Review
The question before us turns on our interpretation of statutes— a question of law over which an appellate court exercises unlimited review. State v. Walker, 280 Kan. 513, 515, 124 P.3d 39 (2005). When courts are called upon to interpret statutes, the fundamental rule governing that interpretation 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.” State ex rel. Stovall v. Meneley, 271 Kan. 355, 378, 22 P.3d 124 (2001). For this reason, when the language of a statute is plain and unambiguous, courts “need not resort to statutory construction.” In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025 (2007), cert. denied 555 U.S. 937 (2008). Instead, “an appellate court is bound to implement the [legislature’s] expressed intent.” State v. Manbeck, 277 Kan. 224, Syl. ¶ 3, 83 P.3d 190 (2004). Only where “the face of the statute leaves its construction uncertain, [may] the court. . . 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. [Citation omitted.]” Robinett v. The Haskell Co., 270 Kan. 95, 100-01, 12 P.3d 411 (2000).
Analysis
According to Gilley, the plain language of K.S.A. 21-4710(d)(ll) requires this court to interpret the 45-day period of imprisonment required in the case of a third or subsequent felony by K.S.A. 21-3710(b)(4) as an enhancement of the applicable penalties for the forgery offense because it raises the minimum penalties that shall be given from no period of imprisonment to a 45-day prison term.
The State argues that the same conviction may be used to define a sentence under K.S.A. 21-3710(b) and to calculate a defendant’s criminal history score because the progressive sentences in K.S.A. 21-3710(b)(2)-(4) do not enhance applicable penalties. In particular, the State argues that the 45-day period of imprisonment in K.S.A. 21-3710(b)(4) falls well within the range of probation conditions defined in K.S.A. 21-4602(c) and thus cannot enhance applicable penalties.
K.S.A. 21-3710(b)(4) states that defendants convicted of a third or subsequent forgeiy violation “shall be required to serve at least 45 days’ imprisonment as a condition of probation” and “fined the lesser of the amount of the forged instrument or $2,500.” K.S.A. 21-4602(c) explains that “[i]n felony cases, the court may include confinement in a county jail not to exceed 60 days, which need not be served consecutively, as a condition of an original probation sentence.” The State argues that because K.S.A. 21-4602(c) gives district courts discretion to include up to 60 days in jail as a condition of probation in any felony case and because forgery (as a severity level 8 nonperson felony) always involves presumptive probation, it cannot be said that K.S.A. 21-3710(b)(4) — which makes mandatory 45 days’ imprisonment as a condition of probation— enhances the applicable penalties for the crime of forgery.
We disagree. While a district court has discretion to require up to 60 days in jail as a condition of a defendant’s probation, K.S.A. 21-3710(b)(4) mandates 45 days’ imprisonment when a defendant is convicted of a third or subsequent forgery offense. By elevating the mandatory minimum sentence given in such cases, the legislature has enhanced the applicable penalties for the underlying forgeiy conviction. See Stale v. Luttig, 40 Kan. App. 2d 1095, 1098-99, 199 P.3d 793 (2009); cf. United States v. Booker, 543 U.S. 220, 267, 160 L. Ed. 2d 621, 125 S. Ct. 738 (2005) (Breyer, J., writing for majority in a bifurcated opinion) (mandatory minimum sentences based on criminal history with no provision for durational departure elevate sentences beyond that authorized by a jury verdict).
We hold that when a defendant’s prior forgery convictions are used to increase the mandatory minimum sentence for the crime of conviction in the progressive sentencing scheme in K.S.A. 21-3710(b)(4), enhancing the applicable penalty for the primary forgery offense, the plain language of K.S.A. 21-4710(d)(ll) precludes those prior convictions from being used to calculate the defendant’s criminal history score in the same case.
(3) Did the trial court err in setting defendant’s CRIMINAL HISTORY AS CATEGORY G?
In the case before us, Gilley was convicted of three counts of forgery based on the same complaint or information, and she had been convicted of forgery three previous times. If Gilley’s three current forgery convictions triggered the 45 days of imprisonment as a condition of her probation (as required by K.S.A. 21-3710[b][4]), then all of her previous forgery convictions could be used to calculate her criminal history. The Court of Appeals came to this conclusion in its decision in this case. Gilley, shp op. at 4.
The progressive sentencing scheme for forgery convictions does not make any reference to “prior convictions.” Compare K.S.A. 21-3710(b) (referencing a “first conviction,” “second conviction,” and “third or subsequent conviction”) with K.S.A. 21-4710(a) (defining “prior conviction” as any conviction other than that included in the same information or complaint or joined for trial). Instead, K.S.A. 21-3710(b) simply references the number of forgery convictions of a particular defendant.
Because K.S.A. 21-3710(b) does not limit progressive sentencing to prior forgery convictions but rather focuses on the number of forgery convictions incurred by a defendant, any forgery conviction can be used to heighten the defendant’s conditions of probation. Had the district court treated Gilley’s Count 1 as a first conviction, Count 2 as a second conviction, and Count 3 as a third conviction under the provisions of K.S.A. 21-3710(b), all three prior forgery convictions would have been available to be counted for criminal history purposes.
Instead, as the record clearly establishes, Gilley’s plea to Count 1 was treated as a third forgery conviction under K.S.A. 21-3710(b)(4). At the time she entered her plea to Count 1, she was charged with two additional counts of forgery in the same complaint, but these charges were not convictions. Thus, the district court could not rely upon such charges but only upon prior forgery convictions to establish a third conviction for Count 1 in the present case. The district court properly relied upon two of Gilley’s 2006 forgery convictions. The plain language of K.S.A. 21-4710(d)(ll) precludes those prior convictions from being used to calculate the defendant’s criminal history score. There was no error by the district court.
The judgment of the Court of Appeals reversing the district court is reversed. The judgment of the Reno County District Court is affirmed. | [
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The opinion of the court was delivered by
Biles, J.:
David N. Pressley argues a 16-month delay to impose a criminal sentence violated his Sixth Amendment right to a speedy trial. We hold speedy trial requirements do not include sentencing as previously determined by this court in State v. Freeman, 236 Kan. 274, 280, 689 P.2d 885 (1984). We affirm the sentence.
Factual and Procedural Background
On November 8,2005, Pressley was convicted of two aggravated robberies, aggravated burglary, and attempted aggravated robbery after a bench trial on stipulated facts. Sentencing was set for December 15, 2005. In the interim, Pressley was arrested on unrelated charges in neighboring Reno County and remained in custody there, causing him to miss his Sedgwick County sentencing hearing.
After being advised by Pressley’s counsel why Pressley was unable to appear for sentencing, the Sedgwick County District Court ordered a bond forfeiture abas warrant. The court decided Press-ley’s sentencing would not be rescheduled until “Reno County is done with him.” When the State asked if Pressley’s bond would remain the same, the court stated, “Let’s just put no bond allowed so we can get him in and out in a timely fashion and that will get set quicker for hearing that way.” Pressley remained in custody until the Reno County proceedings concluded.
On December 19, 2006, Pressley pleaded guilty to his Reno County charges. It is unclear from the record how Sedgwick County learned about Pressley’s conviction in Reno County, but his Sedgwick County sentencing was set for February 14, 2007. At that hearing Pressley requested a continuance to discuss with his counsel the effect the sentencing delay had on his case. The continuance was granted. Sentencing occurred on February 22, 2007.
The Reno County conviction impacted Pressley’s Sedgwick County sentence by increasing his criminal history score from category H to category E. This resulted in a 22-month increase in Pressley’s presumptive sentence on the primary offense, aggravated robbery. Pressley did not object. The court sentenced him to the standard presumptive sentence, 88 months. He timely filed his appeal from the sentence and one of his aggravated robbery convictions.
Before the Court of Appeals, Pressley argued for the first time that the Sedgwick County sentencing delay violated his Sixth Amendment right to a speedy trial and negatively impacted his prison sentence by increasing his criminal history score after he returned to Sedgwick County. He contended the court should address the issue for the first time on appeal because it was “necessary to serve the ends of justice or prevent a denial of fundamental rights.”
The Court of Appeals reached the issue by invoking K.S.A. 21-4721(e)(2), which allows an appellate court to review any claim that a criminal history score was calculated erroneously because of the wrongful inclusion or exclusion of a prior conviction. Pressley, slip op. at 7-8. Adhering to Freeman, the Court of Appeals held constitutional speedy trial rights do not apply to postconviction proceedings. Pressley, slip op. at 8. In addition, that court panel, sua sponte, held the facts did not support finding the delay was unreasonable under K.S.A. 22-3424, which requires sentencing to be “pronounced without unreasonable delay.” Pressley, slip op. at 8-9.
Pressley petitioned this court for review. We granted review on tire speedy sentencing issue only. Parenthetically, we note the State argued after review was granted that the Court of Appeals erred by addressing the speedy sentencing issue for the first time on appeal. That argument was settled in Pressley s favor because the State did not seek review on that point (see Supreme Court Rule 8.03[g][l] [2009 Kan. Ct. R. Annot. 66]), but we will briefly comment on it.
Accordingly, this opinion addresses the following issues: (1) Whether we will continue to adhere to Freeman’s holding that the Sixth Amendment right to a speedy trial does not encompass sentencing; and (2) whether Pressley s statutory right under K.S.A. 22-3424 to sentencing without unreasonable delay was properly before the Court of Appeals.
Discussion
Issue 1. Sixth Amendment Right to a Speedy Trial
The Sixth Amendment guarantees the right to a speedy trial. U.S. Const, amend. VI. Further, the Due Process Clause of the Fourteenth Amendment imposes that right on the states. Klopfer v. North Carolina, 386 U.S. 213, 222-23, 18 L. Ed. 2d 1, 87 S. Ct. 988 (1967). Pressley argues the United States Supreme Court held the right to a speedy trial extends through sentencing in Pollard v. United States, 352 U.S. 354, 1 L. Ed. 2d 393, 77 S. Ct. 481 (1957). But Pressley is wrong. The Court in that case only assumed the right existed for purposes of dealing with the litigant’s issues. Pollard, 352 U.S. at 361 (“We will assume arguendo that sentencing is part of the trial for purposes of the Sixth Amendment.”) Accordingly, Pollard does not hold the right to a speedy trial extends through sentencing.
Each state and federal Circuit Court of Appeals' has been free to interpret whether the right to a speedy trial extends to sentencing because there is no controlling United States Supreme Court authority dealing with this question. Courts are divided on the question. See Perez v. Sullivan, 793 F.2d 249, 252-57 (10th Cir. 1986), cert. denied 479 U.S. 936 (1986); Gonzales v. State, 582 P.2d 630 (Alaska 1978); Jolly v. State, 358 Ark. 180, 189 S.W.3d 40 (2004); Trotter v. State, 554 So. 2d 313 (Miss. 1989) (all holding the Sixth Amendment right to speedy trial includes speedy sentencing). Compare State v. Drake, 259 N.W.2d 862 (Iowa 1977), overruled on other grounds State v. Kaster, 469 N.W.2d 671 (Iowa 1991); State v. Johnson, 363 So. 2d 458 (La. 1978); Ball v. Whyte, 170 W.Va. 417, 294 S.E.2d 270 (1982) (all holding the Sixth Amendment right to speedy trial does not encompass speedy sentencing).
In 1984, this court refused to recognize that the Sixth Amendment encompasses the right to speedy sentencing. Freeman, 236 Kan. at 280. Pressley fails to address this case in his brief and gives us no reason why it should be reconsidered or was wrongly decided. In Freeman, this court plainly stated: “A delay of sentencing from a defendant’s plea or from a finding of guilty after a trial does not deprive a defendant of the right to a speedy trial.” 236 Kan. at 280.
The Freeman court reached its conclusion by noting the constitutional speedy trial considerations set out by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 532, 33 L. Ed. 2d 101, 92 S. Ct. 2182 (1972), and discussed by this court in State v. Mick, 229 Kan. 157, 159, 621 P.2d 1006 (1981). Freeman, 236 Kan. at 280. Those considerations are: (1) preventing oppressive pretrial incarceration; (2) minimizing the accused’s anxiety and concern; and (3) limiting the possibility that the accused’s defense efforts will be impaired. Mick, 229 Kan. at 159 (citing Barker, 407 U.S. at 532).
Without further discussion, the Freeman court concluded none of these factors are present after a criminal defendant has pleaded or been found guilty and is awaiting sentence. Freeman, 236 Kan. at 280. To support its conclusion, the court referenced decisions from two other states, Pennsylvania and Texas, also holding the right to a speedy trial does not encompass sentencing. 236 Kan. at 280 (citing Com. v. Hill, 267 Pa. Super. 264, 406 A.2d 796 (1979), and Easley v. State, 564 S.W.2d 742 (Tex. Crim. App. 1978). But in referencing these two decisions, the court did not acknowledge other contemporaiy case law adopting an approach that assumed or recognized the right existed, including a Pennsylvania case following Pollard’s example. See Juarez-Casares v. United States, 496 F.2d 190 (5th Cir. 1974); Gonzales, 582 P.2d 630; Com. v. Pounds, 490 Pa. 621, 417 A.2d 597 (1980).
In the 25 years since Freeman was decided, we note Pennsylvania now has fully adopted the position that the Sixth Amendment applies to sentencing. See Com. v. Greer, 382 Pa. Super 127, 134, 554 A.2d 980 (1989) (“Rather than merely continue to perpetuate the assumption that the Speedy Trial Clause applies to sentencing, we will treat the subject as established law.”). In Texas, we are aware of no published opinions taking a contrary view from that state’s previous decision. But we note an unpublished decision in which a Texas appellate court assumed the right existed and applied the factors based on that assumption. Crocker v. State, 1997 WL 695405 (Tex. App. 1997) (unpublished opinion).
But these are not reasons to depart from our holding in Freeman. As noted above, there are states that do not find the speedy trial right applies to sentencing. In addition, our state has addressed the concern in K.S.A. 22-3424(c), which requires: “If the verdict or finding is guilty, judgment shall be rendered and sentence pronounced without unreasonable delay, allowing adequate time for the filing and disposition of post-trial motions and for completion of such presentence investigation as the court may require.”
In addition, the well-established doctrine of stare decisis generally requires that once a point of law has been established it will be followed by the same court and all courts of lower rank in subsequent cases pertaining to the same legal issue. A court of last resort will follow the rule of law it established unless clearly convinced the rule was originally erroneous or is no longer sound because of changing conditions and more good than harm will come by departing from precedent. Crist v. Hunan Palace, Inc., 277 Kan. 706, 715, 89 P.3d 573 (2004). Admittedly the doctrine is at its weakest in the constitutional field, but absent a ruling from the United States Supreme Court explicitly extending speedy trial protections to sentencing, we see no reason to change course. See State v. Hoeck, 284 Kan. 441, 463, 163 P.3d 252 (2007) (citing Payne v. Tennessee, 501 U.S. 808, 827-28, 115 L. Ed. 2d 720, 111 S. Ct. 2597, reh. denied 501 U.S. 1277 [1991]).
Accordingly, we affirm the Court of Appeals’ decision applying Freeman as a bar to Pressley’s presentation of a constitutional right to a speedy sentence under the Sixth Amendment.
Issue 2. Court of Appeals’ Consideration ofKS.A. 22-3424
We briefly address this second issue only to point out the Court of Appeals erred by analyzing whether Pressley’s statutory protection from unreasonable delay in sentencing under K.S.A. 22-3424(c) was violated. The Court of Appeals determined the statutory right was not violated, but a review of the briefs on appeal shows Pressley never properly raised the issue.
It is undisputed that Pressley did not make this statutory claim to the district court. His sole reference to the statute came in his appellate brief where he stated, “Kansas law and the Sixth Amendment require that sentencing must occur without unreasonable delay. K.S.A. 22-3424(c).” Pressley made no argument regarding the statute and provided no analysis to assert a statutory argument on appeal.
To the extent Pressley wished to raise a statutory claim in addition to the Sixth Amendment challenge, we deem it waived for failure to adequately address the matter. State v. Harned, 281 Kan. 1023, 1048, 135 P.3d 1169 (2006) (claims raised in passing without argument or citation to authority are deemed waived). We find it was error for the Court of Appeals to address the statutory issue, though it ultimately found the statute was not violated. Appellate courts do not ordinarily consider issues the parties failed to raise unless an issue’s consideration is necessaiy to serve the ends of justice or to prevent the denial of fundamental rights. State v. Adams, 283 Kan. 365, 367, 153 P.3d 512 (2007). No such circumstances were presented in this case.
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The opinion of the court was delivered by
Luckert, J.:
Richard Shadden appeals his conviction for driving under the influence of alcohol (DUI) to an extent that it rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2009 Supp. 8-1567(a)(3). During the trial, a law enforcement officer testified Shadden failed the National Highway Traffic Safety Administration’s (NHTSA) standardized walk-and-tum test and his failure meant there was a 68 percent chance that his blood alcohol content (BAC) was more than .10. On appeal, Shadden argues this testimony presents scientific opinion evidence that is not admissible without the State laying the foundation required in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), which was adopted in Kansas in State v. Lowry, 163 Kan. 622, 629, 185 P.2d 147 (1947). Shadden further argues that words like “ ‘tests’ or other related terms such as pass, fail, or points” should not be allowed in an officer’s testimony or the State’s arguments because the words add scientific credibility to the officer’s opinion.
We agree that the Frye test must be met before admitting evidence establishing a relationship between a NHTSA test failure and a specific measurement of a driver’s BAC. In this case, the State did not lay the necessary foundation, and the district court erred in admitting the officer’s opinion that 68 percent of the time a person exhibiting two clues has a BAC of more than .10. Nevertheless, we disagree that it was error to allow the State and its witnesses to use words like “tests,” “pass,” “fail,” or “points” when referring to Shadden’s performance on the NHTSA test. These words are commonly used by lay and expert witnesses to describe evidence that is not scientific in nature. Therefore, it is not nec-essaiy to meet the Frye test before these words are used. We also reject other issues raised by Shadden and find the Frye error harmless. Therefore, we affirm Shadden’s conviction.
Facts and Procedural Background
On December 27, 2005, Officers Nick Weiler and Shannon Goodnight observed the driver of a pickup truck run a stop sign and fail to yield the right of way to an oncoming car, causing the driver of the car to stop quickly to avoid an accident. The officers activated emergency fights, and the pickup’s driver turned onto another street. Rather tifian pull to the curb, the driver stopped in the middle of a lane of traffic.
Officer Weiler approached the driver, later identified as Shad-den, and asked for his driver’s license and proof of insurance. Officer Weiler detected a strong odor of alcohol from Shadden and asked him to step out of the truck. The smell of alcohol persisted after Shadden emerged from the truck. Officer Weiler observed Shadden sway as he walked and noted that Shadden also slurred some of his words and had difficulty communicating, frequently pausing and asking to have questions repeated. Officer Weiler also noted that Shadden’s face appeared flushed and his eyes were bloodshot and watery.
Officer Weiler decided to perform some NHTSA standardized field sobriety tests. Because of the grade of the street, he did not conduct a one-leg-stand test. He asked Shadden to perform the walk-and-tum test, however. After the officer instructed Shadden and demonstrated the test, Shadden attempted to perform it. Pursuant to the NHTSA standards, Officer Weiler was trained to look for eight possible clues of intoxication based on an individual’s performance of the walk-and-tum test. Under NHTSA protocols, if an individual demonstrates two or more clues, the individual is deemed to have failed the test.
Officer Weiler noted that Shadden failed to maintain his balance while listening to the test instructions and he started to take steps before he was instmcted to begin. During the first nine steps, Shadden stopped once, stepped sideways once, raised his arms twice, and failed to place the heel of one foot against the toe of the other foot on four occasions. While turning, Shadden stepped outside the acceptable range of motion. On the final nine steps, Shadden stopped twice, stepped sideways twice, raised his arms five times, and failed to place his heel against his toe five times. Based on these errors, Officer Weiler identified all eight clues of intoxication.
Then, the other officer, Officer Goodnight, conducted three nonstandardized sobriety tests: the alphabet test, a counting test, and the finger-to-nose test. Shadden was unable to recite file alphabet from A to Z without a mistake. He counted to 15 correctly but repeated a few numbers when counting back down to 1. In six attempts, Shadden failed to touch his nose correctly during the finger-to-nose test.
Officer Weiler arrested Shadden for DUI. At the police station, Officer Weiler provided Shadden with the implied consent advisory form (DC-27), which included a warning that a test refusal may be used against the individual in a trial for DUI. When Officer Weiler asked if Shadden would submit to a breath test on the Intoxilyzer 5000, Shadden refused. After being Mirandized, Shad-den waived his rights and spoke with Officer Weiler. When the officer asked how much Shadden had to drink that evening, Shad-den indicated that he had three or four beers. He also volunteered that he had smoked marijuana.
The State charged Shadden with operating or attempting to operate a vehicle while under the influence of alcohol to an extent that it rendered him incapable of safely driving a vehicle, in violation of K.S.A. 2009 Supp. 8-1567(a)(3). Before trial, Shadden filed a motion in limine seeking to prevent the State or witnesses from referring to the field sobriety exercises as “ ‘tests’ or other related terms such as pass, fail, or points.” In addition, Shadden sought an order requiring the State to refrain from attaching any scientific significance to Shadden’s performance on the NHTSA test.
At the hearing regarding the motion, defense counsel argued that such tests “don’t pass the Frye test or Daubert test, they have never been tested for reliability or validity.” See Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 125 L. Ed. 2d 469, 113 S. Ct. 2786 (1993); Frye, 293 F. 1013. Defense counsel argued that under that premise, it could be problematic to present the testimony of an arresting officer as an “expert” using “scientific tests” and cited rationale from Florida courts as persuasive authority. The district court denied the request, stating:
“Well, the NHTSA field sobriety test that has been standardized [is] recognized in Kansas courts. They are based on statistical research. They have their limitation.
“Counsel is fully permitted to, in the interrogation of the officer, to cover the limitations of the test, but they are tests and can be so indicated to the jury. They do score these, based upon clues of impairment, to what is a failure. So the walk- and-tum, one-leg-stand test, they are valid in Kansas.
“The officer may testify in his opinion whether they were ‘pass’ or ‘fail.’ It is all subject to a scathing cross-examination by the defense counsel as to how much weight that the jury ought to give these tests in this particular case.”
During the jury trial, Officer Weiler testified he believed Shad-den “was driving under the influence of alcohol or drugs due to his admissions” and also due to his “sobriety tests, how he failed all those, and the odor of alcohol, [and] bloodshot, wateiy eyes.” In addition, Officer Weiler indicated he had been trained regarding the NHTSA and the tests’ indication of impairment. On direct examination, Officer Weiler gave the following testimony regarding the NHTSA:
“Q. Now, you’re trained with regard to percentages, and if a person has this many clues, it indicates a percentage of whether or not they are .10 over the legal limit, correct?
“A. Yes.
“Q. If a person exhibits two clues, which you have said is a failure, what is the percentage that the person is over .10?
“A. Sixty-eight percent.
“Q. And that is if they exhibit two of eight clues?
“A. Yes.
“Q. And what is the legal limit in the state of Kansas?
“A. Point zero eight.
“Q. So it is — the legal limit is even lower than .10 which is recognized by the NHTSA training?
“A. Yes.”
On cross-examination, the defense attorney questioned Officer Weiler about the NHTSA standards, making the point that the test results are not reliable if the test is not administered in the prescribed manner. Further, in attempting to attack the officer’s testimony regarding the NHTSA-percentage testimony, the defense attorney asked Officer Weiler whether “the converse of 68 percent accuracy is 32 percent inaccuracy.” Officer Weiler admitted that was “correct,” as did Officer Goodnight when she subsequently testified and was cross-examined. The defense attorney also asked extensive questions regarding how many points were available for scoring and how many points should have been deducted for mistakes made by Shadden. In response to cross-examination questions, Officer Weiler indicated Shadden correctly performed 76 percent of the steps he took during the test.
Following a 2-day trial, a jury found Shadden guilty of DUI. For purposes of sentencing, the district court found that Shadden had three prior DUI convictions. The court imposed a sentence of 1 year in jail and a fine of $2,500. The court also imposed court costs, Board of Indigents’ Defense Services (BIDS) attorney fees, and a requirement of 12 months of substance abuse treatment upon release from jail.
Court of Appeals" Decision
On direct appeal, the Court of Appeals reversed Shadden’s conviction and remanded the case for a new trial, finding the district court erred in admitting some, although not all, of Officer Weiler’s testimony about NHTSA tests. State v. Shadden, 40 Kan. App. 2d 1103, 199 P.3d 167 (2009). The Court of Appeals concluded it was not error to admit the officer’s testimony that a NHTSA field sobriety test was administered and that, based upon the officer’s training and experience, the driver failed that test. It was error, however, to admit testimony that took “the additional step of equating a level of certainty or probability to the officer’s opinion or to correlate a driver’s performance with a specific BAC level.” Shadden, 40 Kan. App. 2d at 1114. The Court of Appeals stated that Officer Weiler was “clearly not qualified to testify about the reliability of the NHTSA standards, and no expert testimony was provided to qualify the NHTSA standards under Frye.” Shadden, 40 Kan. App. 2d at 1114. Because Shadden had no effective means of cross-examining the reliability of the NHTSA standards, “[t]he result is the officer’s opinion that the criminal defendant is intoxicated is given an undeserved scientific credibility.” Shadden, 40 Kan. App. 2d at 1114. The Court of Appeals found the error was not harmless due to the possibility that the jury placed undue weight on the field sobriety test results. Shadden, 40 Kan. App. 2d at 1115. Consequently, the Court of Appeals reversed and remanded for a new trial.
In addition, the Court of Appeals addressed a prosecutorial misconduct issue raised by Shadden in which he argued the State violated the district court’s order in limine when it asked the officers for their personal opinion on whether Shadden was intoxicated. The Court of Appeals concluded the questions were not a violation of the order and the evidence was admissible. The Court of Appeals further found that two remaining issues had not been preserved before the district court. Those issues were that the district court erred in admitting testimony that Shadden had refused to take a breath test and that the officers created an unconstitutional condition by asking Shadden to submit to a breath test. As to this unconstitutional condition issue, Shadden argued the request to submit to a breath test required him to choose between a waiver of his Fourth Amendment rights in consenting to a breath test and a waiver of his Fifth Amendment rights by refusing to take a breath test.
The Court of Appeals addressed one final issue, holding the district court erred by imposing BIDS attorney fees without first considering Shadden’s financial resources and the burden that payments would impose. Shadden, 40 Kan. App. 2d at 1121-22 (citing State v. Robinson, 281 Kan. 538, Syl. ¶ 1, 132 P.3d 934 [2006]).
Following the Court of Appeals’ decision, the State filed a petition for review and Shadden filed a cross-petition. We granted both the petition and cross-petition, and our jurisdiction arises from K.S.A. 22-3602(e). In those petitions, neither party requested review of the BIDS attorney fee issue; therefore, that issue is not before this court. However, all other issues are raised either in the State’s petition for review or Shadden’s cross-petition.
The State’s petition for review raises two arguments. First, the State argues it was inappropriate for the Court of Appeals to sua sponte consider the admissibility of testimony regarding the relationship between failing a NHTSA test and a probability of having a BAC above .10. The State contends the issue statements in Shad-den’s appellate brief did not specifically mention Officer Weiler’s testimony in which he indicated that, under the NHTSA standards, missing two clues in the wallc-and-tum test means there is a 68 percent probability that the defendant’s BAC was .10 or higher. Second, the State argues the Court of Appeals erred when it concluded the admission of the testimony regarding the relationship between failing a NHTSA test and a probability of having a BAC above .10 required reversal of the conviction.
Shadden in Inis cross-petition argues the Court of Appeals erred in ruling the officers could use words like “test” and “fail.” In ad dition, he raises the prosecutorial misconduct issue that the Court of Appeals rejected and the constitutional issues that the Court of Appeals concluded had not been preserved.
Preservation of BAC Issue
First, we consider the State’s complaint that Shadden did not preserve or present on appeal an issue that the Court of Appeals considered — i.e., the admissibility of the officer’s testimony that Shadden’s failure on the walk-and-turn test meant there was a 68 percent probability he had a BAC above .10. As the State contends, ordinarily an appellate court will not consider an issue on appeal not raised in the district court. Graham v. Dokter Trucking Group, 284 Kan. 547, 555, 161 P.3d 695 (2007); In re Tax Appeal of Alsop Sand Co., Inc., 265 Kan. 510, 521, 962 P.2d 435 (1998). This rule does not present an impediment to consideration of the issue in this case, however, because the issue of scientific validity or credibility, including the relationship between test failures and BAC, was raised in tire district court and in Shadden’s brief before the Court of Appeals.
More specifically, before both the district court and the Court of Appeals, Shadden argued drat field sobriety tests do not satisfy the Frye standard and that tire accuracy of such tests is outside the common knowledge of laypersons. In his motion in limine, Shad-den argued that “[t]he testimony of Officer Weiler and Officer Goodnight shall be limited to only the description of their lay observations as to signs of impairment.” Shadden made two related requests for an order. First, he sought to limit the use of terminology like “ Tests’ or other related terms such as pass, fail, or points.” Second, he sought to limit the officers’ testimony to lay opinions. Shadden supported these requests by citing State v. Meador, 674 So. 2d 826 (Fla. Dist. App.), rev. denied 686 So. 2d 580 (Fla. 1996). Meador supported Shadden’s second request to limit testimony to lay opinions because the Florida Court of Appeals concluded the State could not admit any evidence of a scientific opinion that stated a relationship between a driver’s performance during field sobriety tests and a certain level of intoxication. In addition, Shadden cited the following authorities and made the following parenthetical statements:
“See also State v. Ross, 938 P.2d 797 (Or. App. 1997) (arresting officer prohibited from rendering opinion that defendant’s behavior was consistent with a blood alcohol level above the legal limit); State v. Lummus, 1997 Ariz. App. LEXIS 189 (officer’s statement that ‘on a scale of 1 to 10 the defendant rated a 10 plus for intoxication’ is inadmissible opinion testimony that implies the defendant was over the blood alcohol limit); State v. Ferrer, 2001 Hawaii App. LEXIS 116 (officer can’t testify that defendant ‘failed’ field sobriety exercises, he can only testify to personal observations).”
This discussion clearly raised the issue of whether the officers could testify about the relationship between a test failure and BAC. In addition, Shadden had a standing objection to the evidence at trial. See K.S.A. 60-404 (providing that a verdict shall not be set aside “by reason of the erroneous admission of evidence unless there appears of record objection to the evidence timely interposed and so stated as to malee clear the specific ground of objection”).
Then in his appellate brief submitted to the Court of Appeals, Shadden asserted that “it is inappropriate for the officer to inform the jury that the NHTSA tests — or any other tests for that matter— are rehable scientifically.” Although Shadden’s appellate brief focused on the terminology argument, the arguments clearly reflected the overarching theme that the officers should have been prohibited from venturing beyond a recitation of their personal observations and should not have been allowed to state a scientific opinion.
Hence, each of the issues addressed in the Court of Appeals’ decision was raised and preserved before the district court and pursued in Shadden’s brief before the Court of Appeals. The fact that the Court of Appeals’ interpretation of die law led it to a conclusion the State had not foreseen does not make the panel’s action inappropriate. See Graham, 284 Kan. at 556 (finding the Court of Appeals’ interpretation of the workers compensation statute, leading it to a conclusion unforeseen by the claimant, did not render the panel’s action inappropriate).
Motion in Limine Ruling
Consequently, we will discuss the Court of Appeals’ holdings that the officer’s opinion that 68 percent of the time a person exhibiting two clues has a BAC of more than .10 was inadmissible and that it was not error to admit testimony referring to the field sobriety exercises as “tests,” indicating that the defendant’s total “points” meant the driver “passed” or “failed” such exercises, or lending scientific credibility to the results of the exercises.
Standard of Review
In recent years, this court has applied an abuse of discretion standard when reviewing a district court’s decision regarding a motion in limine. E.g., Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). Although this statement of the standard is generally utilized, it is a departure from the original decisions of this court that separately analyzed two factors that underlie a district court’s motion in limine. Those two factors were explained in the first Kansas case to discuss motions in limine in which this court stated:
“The purpose of a motion in limine is to assure all parties a fair and impartial trial by prohibiting inadmissible evidence, prejudicial statements, and improper questions by counsel. It is generally agreed a protective order issued on a motion in limine should be granted only when the trial court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial under the rules of evidence; and (2) The mere offer of or statements made during trial concerning the material will tend to prejudice the jury. [Citations omitted.] The material to which the motion in limine is addressed may be either inadmissible under an established rule of evidence, such as the hearsay rule, or it may be excludable under a statute, such as K.S.A. 60-445, because its probative value is substantially outweighed by its tendency to prejudice.” State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979), overruled on other grounds State v. Jackson, 244 Kan. 621, 772 P.2d 747 (1989).
In subsequent cases, both criteria have been broadened somewhat. As to the first criteria, cases have recognized that common-law doctrines as well as rules of evidence may require the exclusion of evidence. See Martinez v. Milburn Enterprises, Inc., 290 Kan. 572, 233 P.3d 205 (2010) (applying collateral source rule). As to the second criteria, at least implicitly it has been recognized that an order in limine is permissible under a district court’s inherent authority to manage the course of trials and thus the purpose of a motion in limine can be broader than guarding against prejudice. See Luce v. United States, 469 U.S. 38, 41 n.4, 83 L. Ed. 2d 443, 105 S. Ct. 460 (1984). More specifically, a limine order may be appropriate because the introduction or mention of the evidence may cause unfair prejudice, confuse the issues, or mislead the jury; tire consideration of the issue during the trial might unduly interrupt and delay the trial and inconvenience the jury; or a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation. See Palmieri v. Defaria, 88 F.3d 136, 141 (2d Cir.1996); Sperberg v. Goodyear Tire & Rubber Co., 519 F.2d 708, 712 (6th Cir. 1975), cert. denied, 423 U.S. 987 (1975); see generally K.S.A. 60-216(c)(7) (allowing pretrial consideration of issues that “may aid in the disposition of the action”); U.S.D. No. 232 v. CWD Investments, 288 Kan. 536, 205 P.3d 1245 (2009) (affirming order in limine limiting damage claims on the basis that they were not timely or adequately disclosed). However, these advantages to a pretrial ruling must be balanced against the reality that a district court is usually in a better position during trial to assess the value and utility of evidence and its potential prejudice. See Quick, 226 Kan. at 312.
Hence, to restate the Quick factors by incorporating these considerations, a motion in limine may be granted when a district court finds two factors are present: (1) The material or evidence in question will be inadmissible at a trial; and (2) the pretrial ruling is justified as opposed to a ruling during trial because the mere offer or mention of the evidence during trial may cause unfair prejudice, confuse tire issues, or mislead the jury; the consideration of the issue during the trial might unduly interrupt and delay the trial and inconvenience tire juiy; or a ruling in advance of trial may limit issues and save the parties time, effort, and cost in trial preparation. In determining if a pretrial ruling is justified a district court should weigh whether the court will be in a better position during trial to assess the value and utility of evidence and its potential prejudice.
On appeal, an appellate court considers the same factors. Although the Quick court did not discuss the standard for reviewing a district court decision regarding these factors, this court later adopted a separate standard of review for each factor. See Board of Educ., U.S.D. No. 464 v. Porter, 234 Kan. 690, 694, 676 P.2d 84 (1984). Eventually, the court conflated the two standards, probably because it routinely applied an abuse of discretion standard to all issues regarding the admissibility of evidence and that same standard routinely applied to decisions regarding whether the circumstances justified a ruling in advance of trial. See State v. Rowell, 256 Kan. 200, 208, 883 P.2d 1184 (1994).
Recently, this court refined the standard for reviewing eviden-tiary rulings, separately identifying a standard for each analytical step that is inherent in a decision to admit or exclude evidence. An abuse of discretion standard applies to the review of some steps of the analysis; a de novo standard applies to others. This refinement and modification of the evidentiary standard of review means that it is no longer appropriate to apply an abuse of discretion standard to the first motion in limine factor — i.e., the admissibility of evidence. Instead, the multistep evidentiary standard should be applied when decisions regarding that factor are reviewed.
Under the multistep evidentiary analysis, the first question is relevance. K.S.A. 60-401(b) defines relevant evidence as evidence that is probative and material. On appeal, the question of whether evidence is probative is judged under an abuse of discretion standard; materiality is judged under a de novo standard. See State v. Reid, 286 Kan. 494, 507-09, 186 P.3d 713 (2008). The second step is to determine which rules of evidence or other legal principles apply. On appeal, this conclusion is reviewed de novo. Boldridge v. State, 289 Kan. 618, Syl. ¶ 10, 215 P.3d 585 (2009). In the third step of the analysis, a district court must apply the applicable rule or principle. The appellate court’s standard of review of this third step varies depending on the rule or principle that is being applied. Some rules and principles grant the district court discretion, while others raise matters of law. State v. Riojas, 288 Kan. 379, 383, 204 P.3d 578 (2009). Finally, an analysis under K.S.A. 60-445 may be required, depending on the issue and parties’ arguments. Under that statute, a district judge “may in his or her discretion exclude evidence if he or she finds that its probative value is substantially outweighed by the risk that its admission will unfairly and harmfully surprise a party who has not had reasonable opportunity to anticipate that such evidence will be offered.” This analysis is reviewed under an abuse of discretion standard. See Reid, 286 Kan. at 509.
Like the final step of the multistep admission of evidence standard, the second prong of the motion in limine test — whether a pretrial ruling is justified instead of a ruling during the trial — rests in the discretion of the district court. Hence, an abuse of discretion standard applies. Luce, 469 U.S. at 40.
Relevance and Applicable Evidentiary Rules
In this appeal, the focus is on the first motion in limine factor of whether the evidence was admissible under the applicable rules of evidence. Applying the multistep evidentiary standard, the first step — relevance—is not in issue. Shadden concedes that Officer Weiler’s testimony regarding the field sobriety tests was relevant to the DUI charge. Indeed, a driver’s performance on tests designed to test motor and cognitive skills for signs of impairment is probative and material to the question of whether the driver was operating a vehicle while under the influence of alcohol.
As to the second step of the evidentiary analysis, the parties agree that the applicable rules are K.S.A. 60-456 and the foundation rule that is known as the Frye test. K.S.A. 60-456 generally governs the admissibility of all opinion testimony, regardless of the subject matter of the testimony or of the categorization of the witness as lay or expert. The Frye test relates to the admission of scientific opinion evidence.
Under K.S.A. 60-456(a), a layperson is allowed to offer opinions or inferences “as the judge finds (a) may be rationally based on the perception of the witness and (b) are helpful to a clearer understanding of his or her testimony.” Different criteria apply to the determination of whether an expert’s opinion is admissible. Those criteria, found in K.S.A. 60-456(b), require that the expert’s opinion be “(1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.” Whether offered by a lay or expert witness, “[tjestimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.” K.S.A. 60-456(d).
On appeal, this portion of the third step of the evidentiary analysis — i.e., the district court’s application of K.S.A. 60-456 — is reviewed under an abuse of discretion standard. Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 455, 14 P.3d 1170 (2000).
In addition to considering K.S.A. 60-456, a district court must determine whether the Frye test has been met if an opinion is based on scientific methods or procedures and is offered for admission. See Frye, 293 F. at 1014; Lowry, 163 Kan. at 629. The Frye test requires a showing that the basis of a scientific opinion is generally accepted as rehable within the expert’s particular scientific field. See Kuhn, 270 Kan. at 454; State v. Witte, 251 Kan. 313, 323, 836 P.2d 1110 (1992).
The Frye test applies only to testimony based on a scientific method or procedure. It does not apply to pure opinion testimony, which is an expert opinion developed from inductive reasoning based on the expert’s own experiences, observations, or research. Rather than being subject to a Frye analysis, the validity of pure opinion is tested by cross-examination of the witness. See Kuhn, 270 Kan. at 457. “The distinction between pure opinion testimony and testimony based on a scientific method or procedure is rooted in a concept that seeks to limit application of the Frye test to situations where there is the greatest potential for juror confusion.” Kuhn, 270 Kan. at 460.
On appeal, while the admission of expert testimony is generally subject to an abuse of discretion standard, the determination of whether the Frye test was correctly applied is subject to de novo review. Kuhn, 270 Kan. at 456; see State v. Elnicki, 279 Kan. 47, 51, 105 P.3d 1222 (2005).
Common Knowledge v. Scientific Opinion
As we apply these rules to the evidence in this case, both the lay and expert opinion provisions of K.S.A. 60-456 are implicated because both lay and expert witnesses are permitted to testify as to their observations of a driver’s acts, conduct, and appearance and, based on those observations, to give opinions of the driver’s state of impairment. See, e.g., State v. Kendall, 274 Kan. 1003, 1013, 58 P.3d 660 (2002) (it does not matter if the officer’s opinion that defendant was intoxicated is given as expert or lay witness, since either iype of testimony is permitted even though it embraces the ultimate issue); State v. Townsend, 146 Kan. 982, 986, 73 P.2d 1124 (1937) (permitting lay witnesses’ opinions as to intoxication). In addressing the categorization of a law enforcement officer’s testimony as lay or expert, this court in City of Dodge City v. Hadley, 262 Kan. 234, 241, 936 P.2d 1347 (1997), recognized the testimony can fall into both categories.
The common component of lay and expert opinions regarding impairment or intoxication is the common knowledge that excessive alcohol consumption can cause problems with coordination, balance, and mental acuity. Each of these psychomotor skills is tested by the NHTSA one-leg-stand test and walk-and-tum test, assuring an opportunity to observe and judge coordination, balance, and mental acuity. While a layperson may be able to observe some or all of these same skills, a law enforcement officer’s opinion — while ultimately based on common knowledge — also draws from his or her training in administering these psychomotor tests and his or her experience in observing drivers’ performances on these tests. Nevertheless, because the opinion rests on the common knowledge of the effects of excessive alcohol consumption, the officer provides pure opinion, not scientific, testimony. See State v. Slater, 267 Kan. 694, 705, 986 P.2d 1038 (1999) (“ The objective signs of intoxication are matters of common knowledge and experience.’ ”); see also, e.g., Cumbie v. City of Montgomery, 703 So. 2d 423, 425 n.1 (Ala. Crim. App. 1997) (explaining that the battery of field sobriety tests typically includes the one-leg-stand test, the walk-and-tum test, and the finger-to-nose test, are designed to disclose “physical manifestations of intoxication,” and do not “require the evidentiary foundation for the admission of expert scientific testimony”); State v. Superior Court, 149 Ariz. 269, 276, 718 P.2d 171 (1986) (distinguishing the horizontal gaze nystagmus [HGN] test, which rests upon an assertion of scientific legitimacy, from the psychomotor tests, which rely upon a basis of common knowledge, and holding that “[different rules therefore apply to determine” the admissibility of HGN test results); People v. Williams, 3 Cal. App. 4th 1326, 1332, 5 Cal. Rptr. 2d 130 (1992) (holding that psychomotor tests, unlike the HGN test, rest on a basis of common knowledge, and that lay witnesses may opine as to “another’s state of intoxication when based on the witness’s personal observations of such commonly recognizable signs as an odor of alcohol, slurring of speech, unsteadiness, and the like”); Hawkins v. State, 223 Ga. App. 34, 36, 476 S.E.2d 803 (1996) (holding that expert testimony was not required as a foundation for admission of testimony regarding the results of psychomotor tests because these types of exercises are not based on a scientific principle or technique, but instead are “physical dexterity exercises that common sense, common experience, and the laws of nature’ show are performed less well after drinking alcohol”); People v. DiNonno, 171 Misc. 2d 335, 336, 659 N.Y.S.2d 390 (1997) (explaining that since psychomotor tests are “not truly scientific in nature” but “are based upon the indisputable fact that intoxication affects physical coordination and mental acuity[,]” “proof of their acceptance in the scientific community is not required”); State v. Murphy, 953 S.W.2d 200, 202 (Tenn. 1997) (“[T]he HGN test does differ fundamentally from other field sobriety tests because the witness must necessarily explain the underlying scientific basis of the test in order for the testimony to be meaningful to a jury.”); Plouff v. State, 192 S.W.3d 213, 223 (Tex. App. 2006) (coordination, balance, and mental agility problems exhibited during field sobriety tests are observations grounded in common knowledge).
Yet, implicit in these cases is the notion that evidence regarding psychomotor field sobriety tests must not go beyond the common knowledge of laypersons, unless the evidence is shown to be reliable under Frye. This conclusion is also implicit in three Kansas cases cited by the Court of Appeals — Witte, 251 Kan. 313, State v. Chastain, 265 Kan. 16, 960 P.2d 756 (1998), and State v. McHenry, No. 93,872, unpublished opinion, filed June 30, 2006. A discussion of these cases reveals the line between pure opinion and scientific opinion relating to intoxication.
In Witte, 251 Kan. 313, this court provided an extensive analysis of the positions taken by other jurisdictions regarding the admission of the horizontal gaze nystagmus (HGN) test, which is a NHTSA-approved test. The Witte court first considered whether testimony regarding the HGN test involved scientific evidence requiring expert testimony that qualified under Frye. Witte, 251 Kan. at 318-22. This court summarized the reasons other jurisdictions had concluded that the HGN test is scientific in nature by stating:
“These courts have given various reasons for holding that I-IGN evidence is scientific in nature: The HGN test is distinguished from other field sobriety tests in that science, rather than common knowledge, provides the legitimacy for HGN testing. [Citations omitted.] Certain reactions to alcohol are so common that judicial notice will be taken of them; however, HGN testing does not fall into this category. [Citation omitted.] HGN test results are ‘scientific evidence based on the scientific principle that consumption of alcohol causes the type of nystagmus measured by the HGN test.’ [Citation omitted.] HGN evidence could have a disproportionate impact on the jury’s decisionmaking process because of the test’s scientific nature and because the jury may not understand the nature of the test or the methodology of its procedure. [Citations omitted.]” (Emphasis added.) Witte, 251 Kan. at 321.
The Witte court then concluded:
“Alcohol’s effect on a person’s sense of balance is common knowledge. The same cannot be said for HGN. The HGN test is based upon scientific principles and exceeds common knowledge. We hold that the HGN test results are scientific evidence. As such, the Frye foundation requirements for admissibility must be satisfied.” Witte, 251 Kan. at 322.
After reviewing cases from other jurisdictions, the Witte court ultimately concluded the HGN test results were not sufficiently rehable to meet the requirements of Frye. Witte, 251 Kan. at 329-30. While Witte did not address the admissibility of other field sobriety tests, the decision implies that the results of field sobriety tests based on common knowledge of the effects of alcohol, such as poor balance, would be admissible irrespective of Frye.
Six years later, in Chastain, 265 Kan. 16, this court was asked to reexamine Witte in light of subsequent decisions in four states that allowed the use of the HGN test. Reaffirming Witte, this court stated: “[W]e are not satisfied that such testing has achieved general acceptance within the relevant scientific community.” Chas- tain, 265 Kan. at 23. We also considered the evidence presented in the trial, including that of an expert witness called to testify regarding the reliability of the HGN test and concluded the expert was not qualified to address all of the reliability issues raised in Witte and had not done so. Chastain, 265 Kan. at 23.
More recently, in the unpublished case of State v. McHenry, No. 93,872, filed June 30, 2006, the Court of Appeals considered whether a 12-step drug recognition examiner (DRE) protocol required demonstration of reliability under Frye. The McHenry court specifically noted that the district court restricted the arresting officer s testimony to discussions of the kinds of symptoms different drugs produce and the symptoms the officer observed in the defendant. In rejecting McHenry’s argument that the officer’s testimony implied scientific evidence that was not demonstrably reliable under Frye, the Court of Appeals quoted Williams v. State, 710 So. 2d 24 (Fla. Dist. App. 1998), at length. The McHenry court essentially concluded that the testimony of the officer who conducted the DRE protocol was admissible outside of Frye because the testimony related to physiological conditions within the common knowledge of the jurors:
“ ‘Police officers and lay witnesses have long been permitted to testify as to their observations of a defendant’s acts, conduct, and appearance, and also to give an opinion on the defendant’s state of impairment based on those observations. [Citations omitted.] Objective observations based on observable signs and conditions are not classified as “scientific” and thus constitute admissible testimony.’ ” McHenry, slip op. at 17 (quoting Williams, 710 So. 2d at 28-29).
As these cases recognize, courts generally agree that there is a dividing line between admitting held sobriety test results as circumstantial evidence of intoxication, which is admissible, and the use of such results to assert or imply a specific level of intoxication, which is not admissible unless an appropriate scientific opinion foundation has been laid. See, e.g., Ballard v. State, 955 P.2d 931, 940 (Alaska App. 1998), overruled on other grounds by State v. Coon, 974 P.2d 386 (Alaska 1999) (concluding that HGN test results are admissible as circumstantial evidence of intoxication but inadmissible to establish a particular BAC); State v. Campoy, 214 Ariz. 132, 134-35, 149 P.3d 756 (Ct. App. 2006) (same); People v. Rose, 268 Ill. App. 3d 174, 181, 643 N.E.2d 865 (1994) (distinguishing between the admission of field sobriety test results and preliminary breath test results because the breath test registered body chemistry rather than recording behavioral characteristics); Schmidt v. State, 816 N.E.2d 925, 946 (Ind. App. 2004) (suggesting that admission of evidence regarding statistical probability that an individual who failed a field sobriety test would have a BAC over .10 is improper in the State’s case-in-chief); State v. Murphy, 451 N.W.2d 154, 157-58 (Iowa 1990) (quoting a statement from State v. Nagel, 30 Ohio App. 3d 80, 80, 506 N.E.2d 285[1986], that “ ‘[objective manifestations of insobriety, personally observed by the officer, are always relevant where, as here, the defendant’s physical condition is in issue’ ”); Wilson v. State, 124 Md. App. 543, 553, 723 A.2d 494 (1999) (permitting testimony regarding HGN test results but finding error when testimony included an opinion of defendant’s BAC); State v. Rose, 86 S.W.3d 90, 100 (Mo. App. 2002) (allowing evidence of HGN test results as circumstantial evidence of intoxication but not as evidence of specific BAC); State v. Baue, 258 Neb. 968, 985-87, 607 N.W.2d 191 (2000) (same); State v. Dahood, 148 N.H. 723, 734, 814 A.2d 159 (2002) (same); Brewer v. Ziegler, 743 N.W.2d 391, 400 (N.D. 2007) (same); State v. Sullivan, 310 S.C. 311, 315-16, 426 S.E.2d 766 (1993) (same); Emerson v. State, 880 S.W.2d 759, 769 (Tex. Crim.), cert. denied 513 U.S. 931 (1994) (same).
At oral argument before this court, the State acknowledged this long line of authority and conceded that no foundation was laid during the trial that would allow evidence of a relationship between fading the NHTSA tests and a specific BAC. Such a concession is well-advised considering this testimony is necessarily based on studies measuring the BAC and creating statistical probabilities of intoxication based on a driver’s NHTSA test failure. There was no evidence during the trial of this case establishing that the NHTSA tests have any enhanced scientific reliability not readily observable by the average layperson who sees a driver walk, step off a curb, or engage in a conversation — i.e., eveiyday activities that exhibit the same psychomotor skills as are tested by the NHTSA exercises. Nor was there evidence establishing the basis for the conclusion that two observed clues during the performance on NHTSA tests means there is a 68 percent chance that the BAC is greater than .10.
In addition, as the Court of Appeals aptly observed, there was no evidence that the officers who testified in this case had the mathematical and scientific expertise to lay the necessary foundation. “Therefore, Shadden had no effective means of cross-examining the reliability of the NHTSA standards because Weiler was merely relating information promulgated by the NHTSA.” Shadden, 40 Kan. App. 2d at 1114.
We agree with the Court of Appeals that the admission of the evidence regarding the relationship between the test and a specific BAC without laying a Frye foundation was error.
Field Sobriety Terminology
Shadden argues this reasoning suggests that the State and its witnesses should be prohibited from using terms that imply scientific credibility to the test. In his cross-petition for review, Shad-den suggests that this conclusion can be implied from the Court of Appeals’ reasoning, although not its conclusion. In other words, in his view, it is inconsistent to prohibit the tests as scientific evidence but to allow scientific terminology to be used when talking about the tests. Where we disagree with Shadden is in the suggestion that words like “points,” “clues, “test,” “pass,” or “fail” indicate a scientific opinion.
Kansas courts have consistently referred to field sobriety exercises as “tests” and have described an individual’s performances on such tests as “passing” or “failing.” See, e.g., State v. Stevens, 285 Kan. 307, 319, 172 P.3d 570 (2007) (finding DUI conviction was supported by evidence that defendant “was unable to satisfactorily complete the field sobriety tests”); Bruch v. Kansas Dept. of Revenue, 282 Kan. 764, 765, 148 P.3d 538 (2006) (noting that driver technically “passed the field sobriety tests”); State v. Martinez, 268 Kan. 21, 24, 988 P.2d 735 (1999) (discussing defendant’s failure on “field sobriety tests”); State v. Neuman, 266 Kan. 319, 320, 970 P.2d 988 (1998) (“Field sobriety tests were administered and defendant failed the tests. He also failed a breath test.”); City of Dodge City v. Norton, 262 Kan. 199, 204-05, 936 P.2d 1356 (1997) (discussing the validity of “field sobriety test” as clue to physical impairment); State v. Shaw, 37 Kan. App. 2d 485, 487, 154 P.3d 524, rev. denied 284 Kan. 950 (2007) (summarizing officer’s testimony that defendant failed the walk-and-tum test by exhibiting four of eight “clues of intoxication”); City of Dodge City v. Ingram, 33 Kan. App. 2d 829, 831, 109 P.3d 1272 (2005) (discussing defendant’s failure on “alphabet test,” the “walk-and-tum test,” and the “one-leg-balance test”).
None of the cited cases specifically addressed the issue raised by Shadden — that it is inappropriate for a testifying officer to imply that the NHTSA tests are scientifically reliable by using the allegedly prejudicial terminology. Further, we are not aware of, and Shadden does not cite to, any Kansas case holding that, when an officer uses terms like “points,” “clues, “test,” “pass,” or “fail,” the officer is no longer testifying as a lay witness and begins to testify as a scientific expert, who therefore must be so qualified.
Courts in other jurisdictions have addressed the question and are divided on this issue. A number of jurisdictions conclude that, depending on the circumstances, the use of certain words may give the officer’s lay witness testimony an “aura of scientific validity”— implying reliability and transforming the testimony into expert testimony. State v. Meador, 674 So. 2d 826, 833 (Fla. App.), rev. denied 686 So. 2d 580 (Fla. 1996); see United States v. Horn, 185 F. Supp. 2d 530, 559-61 (D. Md. 2002); State v. Ferrer, 95 Hawaii 409, 427, 23 P.3d 744 (2001); State v. O’Key, 321 Or. 285, 291, 899 P.2d 663 (1995).
Other jurisdictions do not give such weight to ordinary words used to describe an officer’s field observations. In the present appeal, the Court of Appeals pointed to the Arizona Court of Appeals in Campoy, 214 Ariz. 132, where the State appealed the trial court’s decision to prohibit the arresting officer from using terminology such as “sobriety,” “test,” “field sobriety test,” “impairment,” “pass,” “fail,” or “marginal” in describing the defendant’s performance of field sobriety exercises because such language added “unwarranted scientific credibility” to the State’s evidence. Campoy, 214 Ariz. at 134.
Reversing the trial court, the Arizona Court of Appeals first observed that the results of field sobriety tests are admissible as evidence of a criminal defendant’s general impairment “so long as no correlation is made between performance and BAC and no scientific validity is assigned to the tests themselves as accurate measures of BAC.” Campoy, 214 Ariz. at 135. The Campoy court further noted that performance on field sobriety tests has repeatedly been found to be relevant evidence of a defendant’s impairment, “thus, we disagree with the respondent’s implicit conclusion to the contrary.” Campoy, 214 Ariz. at 135.
Additionally, the Campoy court pointed out that the purportedly prejudicial terminology is “pervasive throughout the case law concerning [field sobriety tests] and have not been found, or even suggested to be, inadmissible.” Campoy, 214 Ariz. at 135. The trial court had ordered the restrictions on terminology based on a finding that there is “no scientific correlation between impairment and performance” on field sobriety tests, a finding, in turn, based on expert testimony that several factors other than alcohol impairment can lead to a “cue of impairment” on a field sobriety test. Campoy, 214 Ariz. at 135. This rationale was rejected by the Campoy court, which stated that expert testimony goes to the weight to be given to evidence related to field sobriety testing, not admissibility or relevancy. Moreover,
“[t]he mere self-evident fact that circumstances other than alcohol impairment can be responsible for cues of impairment on [field sobriety tests] does not establish that such tests are necessarily uncorrelated with impairment. Indeed, our courts have repeatedly found [field sobriety tests] are tests of impairment, albeit not definitive indicators of such, and police officers should be permitted to testify accordingly. [Citation omitted.]” Campoy, 214 Ariz. at 135.
The Campoy court found that the purportedly prejudicial words did not, by themselves, suggest a scientific basis for the tests or lend the tests unwarranted scientific credibility. “Rather,” said the Campoy court, “they make plain the tests’ purpose as indicators of impairment and enable the State to demonstrate their probative value.” Campoy, 214 Ariz. at 136. Testimony that a defendant exhibited “ Tour cues of impairment’ on a Tield sobriety test’ does not improperly assert or imply the defendant has been scientifically proven to have been impaired." Campoy, 214 Ariz. at 136.
In addition, the court expressed a concern that permitting restrictions on vocabulary in DUI cases would open the door to “creative wordsmithing” and would invite perpetual and unnecessary litigation. Such restrictions would also place an unnecessary burden on the parties, could cause testimony to take on an unnatural tone, and would be transparent to the jury. Campoy, 214 Ariz. at 136; see State v. Askren, 147 Ariz. 436, 437, 710 P.2d 1091 (Ct. App. 1985) (“Any juror would know that the purpose of giving the field tests was to try to determine if appellant was under the influence of alcohol.”).
Like Arizona, Connecticut has rejected the argument that the State must lay a scientific foundation for evidence regarding walk- and-tum and one-leg-stand tests before using testing terminology. In State v. Kelley, 95 Conn. App. 423, 896 A.2d 129, rev. denied 279 Conn. 906 (2006), the defendant specifically argued that the State should have been prohibited from using words like “tests,” “results,” “pass,” “fail,” and “points” when referring to the walk- and-tum and one-leg-stand tests because “ "such words wrongly [implied] that the matters had scientific validity and, thus, [prejudiced] the defendant.’ ” Kelley, 95 Conn. App. at 432. The Kelley court found no merit to this notion, stating: “Although there may be situations when language imbues unscientific evidence with scientific significance, using testing language to describe field sobriety tests is not one of them.” Kelley, 95 Conn. App. at 433. The court observed that the purportedly prejudicial words are commonly used by the average person to describe unscientific topics. “In this context,” said the Kelley court, “the language is nothing more than descriptive and does not automatically imply that the topic is scientific in nature.” Kelley, 95 Conn. App. at 433.
Other courts have also followed this type of rationale. See Com. v. Lizardo, 2009 WL 4667583, at *2 (Mass. App. 2009), (unpublished opinion) rev. denied 455 Mass. 1109 (2010) (stating that the field sobriety tests “were of the ordinary variety that measure balance, coordination, and mental acuity, and that are well within the comprehension of lay jurors” and rejecting the notion that the jury would have misunderstood their significance or endowed them with undue scientific authority merely because the words “test” and “pass” were used at trial); McRae v. State, 152 S.W.3d 739, 746 (Tex. App. 2004) (stating that the words “clues,” “test,” and “divided attention” merely refer to observations by the officer, based on common knowledge observations and do not convert the lay witness testimony into expert testimony).
We agree with the Court of Appeals’ determination that the reasoning of the Arizona court, and other courts of like mind, is more persuasive than the reasoning of courts requiring the avoidance of specific words. As the Court of Appeals stated:
“[W]here officer testimony does not link test performance with a specific level of intoxication, the mere use of the term ‘test’ or an indication by the officer that the defendant failed to perform the tests adequately and, therefore, ‘failed’ the test does not lend scientific credibility to the test results. There is only a semantic difference between ‘field sobriety test’ and ‘field sobriety exercise’ or between ‘failing a test’ and ‘being unable to perform an exercise adequately.’ An officer must be permitted to relate the activities a suspected drunk driver was asked to perform and to indicate that certain deficiencies in the performance of these activities indicated that the driver was intoxicated. A juror is not likely to mistake the purpose of a driver standing in the street on one foot while counting to 30 or walking heel-to-toe for 18 steps on a straight fine after being stopped by a law enforcement officer. To this end, it is appropriate for the officer to testify that field sobriety tests were administered and that, based upon the officer’s training and experience, the driver failed those tests. It is impermissible to take the additional step of equating a level of certainty or probability to the officer’s opinion or to correlate a drivers performance with a specific BAC level.” (Emphasis added.) Shadden, 40 Kan. App. 2d at 1114.
Harmless Error
Applying this holding to this case, much of Officer Weiler’s testimony was admissible. On the other hand, his testimony that implied a level of scientific certainty in the conclusion that there was a relationship between performance on the walk-and-tum test and an illegal BAC should not have been admitted because a Frye foundation had not been laid. This leads to the next question: Was the admission of the improper testimony harmless? The Court of Appeals concluded it was not harmless, and the State urges this court to reverse that holding. The State argues there was overwhelming evidence of Shadden s guilt, including the near collision observed by the officers, Shadden’s demeanor during the traffic stop, Shad-den’s admission to the use of alcohol and marijuana, and Shadden’s failure on the nonstandardized field sobriety tests.
The standard of review for evaluating these arguments, which do not implicate the constitutional harmless error standard, is statutorily defined by K.S.A. 60-261, which provides:
“No error in either the admission or tire exclusion of evidence ... is ground for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.” K.S.A. 60-261.
The determination of whether substantial justice has been done and whether an error affirmatively causes prejudice to tire substantial rights of a party requires examination of the trial record as a whole, not just examination of the error in isolation. State v. Warledo, 286 Kan. 927, 943, 948, 190 P.3d 937 (2008).
In this appeal, the Court of Appeals cited the statutory harmless error standard and concluded Shadden’s conviction must be reversed because there was a “possibility” that the jury placed weight on the erroneously admitted testimony. As the United States Supreme Court recently concluded, a finding of reversible error because of a “possibility” of a different outcome is an overly rigorous criterion of whether the substantial rights of a party have been denied because of error. United States v. Marcus, 560 U.S. 258, _, 176 L. Ed. 2d 1012, 130 S.Ct. 2159, 2164 (2010) (concluding circuit court’s “any possibility” standard could not be reconciled with federal plain error standard that requires error to affect appellant’s “substantial rights”).
Nevertheless, the Court of Appeals is not alone in its conclusion; several courts have reversed convictions when evidence similar to that admitted in this case was presented to a jury. See, e.g., Robinson v. State, 982 So. 2d 1260, 1262-63 (Fla. App. 2008); Wilson v. State, 124 Md. App. 543, 559, 723 A.2d 494 (1999); State v. Michaud, 342 Mont. 244, 254-55, 180 P.3d 636 (2008); State v. Downey, 145 N.M. 232, 242, 195 P.3d 1244 (2008). The rationale of these decisions reflects the underlying purpose of the Frye test, which is to prevent juries from being prejudiced by scientific evidence that is not deemed rehable. See Kuhn v. Sandoz Pharmaceuticals Corp., 270 Kan. 443, 460, 14 P.3d 1170 (2000).
Yet other courts have determined improperly admitted evidence regarding a NHTSA test would not have reasonably affected or contributed to the verdict in light of the remaining evidence of impairment. See, e.g., People v. Kirk, 289 Ill. App. 3d 326, 334, 681 N.E.2d 1073 (1997); Com. v. Dumais, 60 Mass. App. 70, 72-73, 799 N.E.2d 125 (2003), rev. denied 441 Mass. 1101 (2004); State v. Poole, 216 S.W.3d 271, 275-77 (Mo. App. 2007). This split in authority is not surprising given that a determination of harmlessness is necessarily fact intensive and case specific.
In this case, the Court of Appeals’ conclusion that the error was not harmless was primarily based on State v. Witte, 251 Kan. 313, 330-31, 836 P.2d 1110 (1992), in which a divided court held that the admission of HGN test results was not harmless. The court in Witte did not specify the standard it applied in reaching this conclusion, i.e., whether it was applying the statutory harmless error standard or some other standard. Regardless, there are significant distinctions between this case and the facts in Witte that lead us to the opposite conclusion.
In Witte, a police officer observed Witte swerving as he drove. Witte explained to the jury that he had never driven the vehicle before and he found the steering to be loose and noticed it pulled to the left. The car’s owner, who was a passenger at the time of the stop, verified “there was a little play in the steering.” Witte, 251 Kan. at 314. Both Witte and his passenger testified that the officer performed field sobriety tests and then told them they would be free to leave after he checked their licenses, which they understood meant Witte had passed the field tests. However, a driver’s license check revealed that Witte had a suspended license. Consequently, he was arrested and taken to the police station where a breath test was administered. Witte’s BAG registered .003 above the legal limit. There was considerable evidence regarding the breath test’s margin of error, some of which would support a conclusion that Witte’s BAG could have been below the legal limit. Given the possibility jurors could view the evidence in this light, the Witte court concluded that “the admission of the HGN test results and the officer’s testimony that the jerking of defendant’s eyes was with certainty’ because Witte was under the influence of alcohol may have influenced the juiy by leading the jury to believe one scientific test supported and gave credibility to the other.” Witte, 251 Kan. at 331. The majority reached this conclusion despite other evidence of intoxication, including a strong odor of alcohol coming from inside the car, bloodshot and watery eyes, the defendant’s admission that he had drunk two beers, and the defendant’s failure to satisfactorily complete the walk-and-tum test or the one-leg-stand test. Witte, 251 Kan. at 331-32 (Six, J., dissenting).
Here, unlike Witte, Shadden was not charged with driving while his BAC was above the legal limit. See K.S.A. 8-1567(a)(l). As a result, unlike a presumptive intoxication case that is based on a measurement of BAC, the jury was not instructed that it could presume intoxication based on Shadden’s BAC. Instead, the jury had to find beyond a reasonable doubt that Shadden was intoxicated to a point where he could not safely operate a vehicle. In that regard, the evidence in this case was substantial, especially when compared to the Witte circumstances where the driver swerved and the swerving was explained by loose steering. Here, the jury heard both officers testify that they observed Shadden ran a stop sign and fail to yield the right of way to an oncoming vehicle, nearly causing an accident that was avoided by the other driver’s actions. Then, when emergency lights were activated, Shadden stopped his car in the middle of a busy road and in the lane of traffic rather than pulling to the side of the road. Shadden explained these behaviors by testifying that he was not familiar with the area and was uncertain of his route of travel from one work site to another.
The jury also heard evidence regarding the officers’ observations of Shadden and his behavior. While the officer in Witte observed bloodshot eyes, smelled alcohol, and noted some psychomotor impairment, in this case the evidence was much stronger. Both officers described Shadden’s flushed complexion and his bloodshot and watery eyes. In addition, the officers reported that they observed impaired motor skills even before asking Shadden to perform any NHTSA or other field sobriety tests. As Officer Goodnight described, “when he exited the vehicle and was walking towards us, he was swaying excessively.” Officer Goodnight added that Shadden “swayed excessively the whole time we had contact with him.” Officer Weiler explained that Shadden slurred some of his words and he frequently paused and asked the officers to repeat questions. Both officers testified to the strong odor of alcohol, which was so strong Officer Goodnight could smell it when standing 5 or 6 feet from Shadden.
In addition to the standardized test that is the focus of this appeal, Officer Goodnight asked Shadden to perform three nonstan-dardized field sobriety tests, i.e., the alphabet test, the counting test, and the finger-to-nose test. Officer Goodnight explained that when asked to say the alphabet, Shadden “did not say the letter E. There were errors during the K, L, M sequence. He said N, O, P, Q, O, R, and . . . then went back to C, S, T, W, S, Y, Z.” On the counting test, he was asked to count 1 to 15 and then count backwards to 1 without repeating the number 15. When counting backwards, Shadden got to 3 and then went back to 6 and started counting down again. In six attempts, Shadden was unable to touch his finger to his nose. Based on diese observations, Officer Goodnight formed the opinion that Shadden was “highly intoxicated.”
Shadden explained his poor performance on his need to shift his weight because his “foot was throbbing.” Shadden testified that he had stepped on a nail earlier in the day, puncturing his boot and injuring his left foot under his smallest toe. In addition, Shadden testified he was distracted by the flow of traffic, was “freaked out,” and was cold. According to the officers, Shadden did not mention being cold at the scene or having an injury.
Further, Shadden admitted to Officer Weiler that he had consumed drugs and three or four beers before driving. His testimony at trial was somewhat different in that he testified he drank three-quarters of a 32-ounce bottle of beer about an hour before the stop. He explained the difference by saying that he told Officer Weiler he drank “equal to” three to four beers, “I’m thinking ounce wise.”
These facts provide substantial evidence of guilt. In addition, as we have discussed, the officers were subjected to rigorous cross-examination regarding the NHTSA test. Defense counsel effectively made the point that the field testing was subject to error, that Shadden successfully completed a larger percentage of the tasks than he failed, and that there were alternative explanations for the mistakes. We find these facts to be vastly different from those in Witte. As we consider the record as a whole in this case, we conclude the evidence of the relationship between a test failure and a specific BAC did not prejudice the substantial rights of Shad-den, and the error of admitting this testimony does not require reversal.
Prosecutorial Misconduct
Shadden argues that his trial was prejudiced by prosecutorial misconduct. Specifically, he contends the State violated the district court’s ruling on Shadden’s motion in limine, prohibiting the officers from rendering their opinions regarding Shadden’s intoxication. Shadden focuses on the direct examination of Officer Weiler. The Court of Appeals correctly found no merit to Shadden’s contentions.
Preservation of Issue
First, the State contends that Shadden failed to preserve this issue for appeal in that Shadden did not contemporaneously object on the specific grounds of “violation of the order in limine” or “prosecutorial misconduct.” To support this argument, the State relies on State v. Aikins, 261 Kan. 346, 932 P.2d 408 (1997).
In Aikins, the defendant argued that the district court abused its discretion in refusing to grant a mistrial because the State violated the court’s order in limine precluding gang evidence at trial. The defendant took issue with the State’s reference to an AK-47 weapon during the testimony of one witness. Because the defendant’s objection at the time of the trial was not that the reference violated the order in limine, but that the line of questioning was irrelevant, this court held the issue was not preserved for appeal. Aikins, 261 Kan. at 377.
The State is correct that a contemporaneous objection must be made to all evidentiary claims — including those alleging prosecu-torial misconduct — to preserve the issue for appellate review. State v. King, 288 Kan. 333, 349, 204 P.3d 585 (2009) (noting that K.S.A. 60-404 “dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial”)- Nevertheless, this case is distinguishable from Aikins in that Shadderis objections revolved around the very purpose of the motion in limine. Shadden made contemporaneous objections on the bases of foundation or ultimate conclusion (province of the jury), both of which were discussed at the hearing on the motion in limine and addressed by the judge; moreover, Shad-den made a standing objection at trial. See King, 288 Kan. at 349.
Hence, we find the issue was preserved for appeal.
Standard of Review
When an appellate court reviews a claim of prosecutorial misconduct involving the improper elicitation of testimony, the court must first consider whether the questions posed were impermissible. If the questions were impermissible, the reviewing court then determines whether the misconduct constituted plain error; that is, whether the evidence prejudiced the jury against the defendant and denied the defendant a fair trial. State v. Hunt, 285 Kan. 855, 871-72, 176 P.3d 183 (2008).
In making the assessment of whether a prosecutor s misconduct in introducing evidence is plain error, an appellate court must consider: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct exhibited ill will toward the defendant by the prosecutor; and (3) whether the misconduct may be deemed harmless in light of the evidence of guilt presented at trial. None of these three factors is individually controlling. Where the first two factors weigh against the prosecutor, a reviewing court may find the misconduct harmless only when both the statutory and constitutional harmless error tests are satisfied. State v. McRey- nolds, 288 Kan. 318, 323, 202 P.3d 658 (2009); Hunt, 285 Kan. at 872.
Analysis
Applying this standard, we begin with the question of whether the prosecutor impermissibly elicited testimony in violation of the district court’s order in limine. The order was entered during the hearing on the motion. In discussing Shadden’s argument that the arresting officers should be prohibited from rendering an opinion regarding Shadden’s impairment, the district court initially commented that the State should address tire officers’ opinions in terms of their reasons for arresting Shadden. The State then noted that City of Dodge City v. Hadley, 262 Kan. 234, 936 P.2d 1347 (1997), and State v. Carr, 230 Kan. 322, 634 P.2d 1104 (1981), overruled on other grounds hy State v. Cantrell, 234 Kan. 426, 673 P.2d 1147 (1983), specifically permitted officers to provide opinion testimony concerning tire state of intoxication of a criminal defendant. Defense counsel then conceded that the State could elicit testimony from the officers regarding their opinions that Shadden was intoxicated to a point that established probable cause to arrest. Defense counsel clarified that the officers should not be permitted to invade the province of the jury by offering testimony such as, “We are absolutely of the opinion that he was intoxicated to the point of not being able to safely drive a car.”
The district court then stated that the officers may “reach their opinions based on conduct, field sobriety results, what have you, to arrest him, and to say that, 'Okay. Based on what we saw, what we observed, the results of these tests, we arrested him for DUI.’ ” After further discussion, the district court added:
“And I suppose that it is really a question of how you frame your question. If you say, ‘Based upon his conduct as well, did that cause you any pause as to whether he was under the influence at the time that you arrested him?’ I think that you can reach the same result. But I think that it is a little bit less than just turning to the juiy and saying, ‘In my expert opinion he was under the influence, members of the jury,’ period.
“It needs to be related to the jury in the context of what they were seeing and observing, ‘Based upon the arrest of this individual, he was arrested for this behavior and conduct/ that that is why they arrested him. They can relate to that. But I think that everything in the way of their opinions needs to be related to the reasons why they arrested him.”
When the prosecutor requested clarification of die court’s ruling, die district court added:
“My point simply is this ... if you are simply going to put an officer on the stand and say, ‘You observed him all that night?’ ‘Yeah, I did.’ ‘Do you have an opinion for the jury?’
“It has to be ... in the context of what the officers did, why they arrested him . . . they needed to get him off the street, this is why they did it, this, this, this, and this.
“I think that you can get in what you are trying to get in if you phrase your question correctly. I’m asking that, if you have any questions ahead of time, you can bounce those off the Court. If you don’t want to, you don’t have to.
“But we may have to approach, we may have to do something outside the presence of the jury. I’m just anticipating that issue. I’ve had it come up in other cases and it is, I think, better practice for the State to have the officers give their opinions in relation to what they did. That is, they arrested the fellow, they detained him, gave him an Intoxilyzer, whatever they did, to explain what they are doing. That is all fair for the jury to hear and understand.
“But I think that when you just bring in an officer and say, ‘Okay. You observed everything; do you have a[n] opinion for the jury?’ period, that is a little bit different.”
During the State’s direct examination of Officer Weiler, the prosecutor reviewed the officer’s observations of Shadden’s performance during the traffic stop and subsequent field sobriety tests before eliciting the officer’s opinion of whether Shadden was intoxicated. Defense counsel objected several times, arguing that the State failed to lay a sufficient foundation to qualify Officer Weiler as an expert on DUI or that the question invaded the province of the jury. The district court did not sustain or overrule the objections, but it directed the prosecutor to ask the officer why he arrested Shadden. The prosecutor then asked Officer Weiler why Shadden was arrested. When the officer testified that Shadden was arrested for DUI, the prosecutor inquired of the officer’s basis for determining that Shadden had committed DUI and asked whether the officer believed Shadden was intoxicated. Defense counsel again objected, but the district court overruled the objection.
The Court of Appeals concluded that the State “clearly attempted to comply” with the district court’s order in limine and, ultimately, the State did not violate the order. The order appeared to require the State to lay a foundation for Officer Weiler’s opinion that Shadden was intoxicated before eliciting that opinion, and the opinion should be given in the context of why Shadden was arrested. Shadden, 40 Kan. App. 2d at 1118. This is precisely what the State tried to do.
Regardless, even if tire district court’s ruling could be interpreted to prohibit opinion testimony by the officers regarding Shadden’s intoxication, we cannot conclude that plain error occurred, as Shadden was not substantially prejudiced by the State’s eliciting such opinion testimony because the evidence is generally admissible if an opinion foundation was laid. K.S.A. 60-456(d) provides: “Testimony in the form of opinions or inferences otherwise admissible under this article is not objectionable because it embraces the ultimate issue or issues to be decided by the trier of the fact.”
Further, as the Court of Appeals observed and we have discussed, it is well established in Kansas law that an officer who has observed a criminal defendant during a traffic stop may provide an opinion on whether the defendant was intoxicated at the time of die stop. Shadden, 40 Kan. App. 2d at 1119 (citing Hadley, 262 Kan. at 241-42); see State v. Kendall, 274 Kan. 1003, 1013, 58 P.3d 660 (2002).
It appears the district court was attempting to comply with these authorities and assure a foundation was properly laid for the admission of the opinion evidence. Further, the prosecutor attempted to comply with this ruling. Consequently, we cannot conclude that the prosecutor committed gross and flagrant misconduct or exhibited ill will toward the defendant in eliciting Officer Weiler’s opinion regarding Shadden’s impairment. Of course, the admission of the officer’s testimony concerning the 68 percent likelihood that Shadden was under the influence was error, but die Court of Appeals correctly stated that the State’s elicitation of that testimony was not a violation of the order in limine.
Shadden’s contention that the State committed misconduct has no merit.
Breath Test, Miranda, and Unconstitutional Conditions
In addition, Shadden raises two issues regarding the admission of evidence that he refused to take a breath test. First, he contends that the district court improperly permitted the State to elicit testimony regarding Shadden’s refusal to take a breath test in violation of his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Specifically, Shadden claims that the statement he made in refusing to take the breath test was inadmissible because Officer Weiler had not read his Miranda rights before requesting that he take the test. He argues that this refusal was the equivalent of an incriminating statement given during a custodial interrogation. Second, Shadden contends that he was forced to choose between constitutional rights, prohibited by the doctrine of unconstitutional conditions, because he was forced to assert either his right against self-incrimination or his right to be free from an unreasonable search. He argues that the breath test is an unreasonable search prohibited by the Fourth Amendment to the United States Constitution and that his refusal to take the breath test then cannot be used against him, because to do so would violate the Fifth Amendment’s protection against self-incrimination.
The Court of Appeals refused to consider these issues because Shadden did not object to the admission of this evidence. Shadden acknowledges that he makes these arguments for the first time on appeal and recognizes that Kansas law generally requires a contemporaneous objection to the admission of evidence to be lodged in order to preserve the evidentiary issue for appeal. K.S.A. 60-404. He nevertheless argues that the statutory requirement should be waived because consideration of the issue is necessary to serve the ends of justice or to prevent denial of fundamental rights. See State v. Hawkins, 285 Kan. 842, 845, 176 P.3d 174 (2008) (recognizing three categories when appellate courts can consider new issues on appeal, one of which is to serve the ends of justice or to present denial of fundamental rights); Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967) (same).
Shadden’s argument is contrary to this court’s recent decisions that emphasized “the importance of th[e] legislative mandate” contained in K.S.A. 60-404, which “dictates that evidentiary errors shall not be reviewed on appeal unless a party has lodged a timely and specific objection to the alleged error at trial.” King, 288 Kan. at 349. In King, the prosecutor asked the defendant on cross-examination at trial about his continued silence after receiving Miranda warnings. Although there was no objection lodged at trial, the defendant subsequently appealed on the grounds of prosecu-torial misconduct, arguing the cross-examination violated his rights under Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976) (prosecutor’s use of defendant’s post-arrest silence to impeach credibility violates Fifth and Fourteenth Amendments to the United States Constitution). King, 288 Kan. at 339-40.
Refusing to consider the issues presented in King’s appeal on the merits, this court found that the defendant’s challenge to the testimony at issue, while perhaps impheating constitutional rights, was an evidentiaiy-based claim of prosecutorial misconduct intended by the legislature to be included within the scope of the contemporaneous objection rule set forth in K.S.A. 60-404. As such, and in the absence of an objection as required by the statute, we concluded that King had failed to preserve his Doyle claim for appellate review. King, 288 Kan. at 347-49.
Notwithstanding past decisions, which may have relaxed the statutory obligation to object in the prosecutorial misconduct context, this court expressly clarified that “[fjrom today forward, in accordance with the plain language of K.S.A. 60-404, evidentiary claims— including questions posed by a prosecutor and responses to those questions during trial — must be preserved by way of a contemporaneous objection for those claims to be reviewed on appeal.” King, 288 Kan. at 349.
Since King, this court has continued to apply this rationale and has reiterated that the contemporary objection requirement must be followed even where constitutional concerns are at stake. State v. Hollingsworth, 289 Kan. 1250, 1257, 221 P.3d 1122 (2009) (stating that “the fact that an evidentiary claim may have a federal constitutional — rather than a state statutory — basis does not alone excuse the lack of compliance with K.S.A. 60-404”); State v. Richmond, 289 Kan. 419, 429-30, 212 P.3d 165 (2009) (stating “if we were to overlook the lack of this particular objection and consider the issue because it is necessary to serve the ends of justice or to prevent the denial of Richmond’s right to a fair trial, these and other case law exceptions would soon swallow the general statutory rule”).
Hence, we conclude that without a timely and specific objection, the constitutional implications concerning the testimony regarding Shadden’s refusal to take a breath test have not been properly preserved for appellate consideration.
The decision of the Court of Appeals on the issues subject to review is reversed. The judgment of the district court on the issues subject to review is affirmed.
Davis, C.J., not participating.
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The opinion of the court was delivered by
Malone, J.:
Sanford Colston appeals his convictions of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child. Colston claims: (1) The trial court erred when it failed to give a unanimity instruction even though the State presented evidence of multiple acts supporting each count; (2) his conviction of aggravated indecent liberties with a child should be vacated because it is a lesser included offense of rape when both offenses are charged under K.S.A. 21-4643; (3) his convictions should be reversed because the trial court failed to instruct the jury to determine his age as an essential element of each offense; (4) the trial court committed reversible error when it gave an Allen-type instruction to the jury before deliberations began; and (5) the combination of errors deprived Colston of his right to a fair trial. We have jurisdiction under K.S.A. 22-3601(b)(l).
Factual and Procedural Background
B.N. was 12 years old in the summer of 2006 when her mother, Donna, began dating Colston. Although Donna and B.N. had lived together in Topeka for most of B.N.’s life, that summer they moved to Wyandotte County to live with Colston and his parents, Dick and Betty Colston. Colston, Donna, and B.N. stayed in the unfinished basement of the single family home. The home did not have air-conditioning and when it started to get hot in August, the three of them often spent the night at the air-conditioned apartment of Colston’s adult daughter, April. B.N. kept her dog Cocoa at Dick and Betty’s home, and she would check on Cocoa almost every day.
On Friday, August 11, Colston, Donna, and B.N.. spent the day swimming at an apartment complex pool. That evening between 8 and 9 p.m., Colston took B.N. to his parents’ house to check on Cocoa. Dick, who had a heart condition and was on oxygen, was in his bedroom, and Betty was watching television in the living room. Colston’s adult son, Michael, was also there. Michael had been drinking and wanted Colston to drive him to his place of employment where he worked the night shift. While Michael was on the phone with his boss, Colston and B.N. went downstairs to the basement to check on Cocoa. After approximately 45 minutes, Michael went to the basement door and yelled downstairs that he needed Colston to take him to work immediately. When he did not receive an answer, Michael started down the stairs. Colston yelled at him not to come down, but Michael came down some of the steps and looked around the corner. He saw Colston on top of B.N. on the bed and both of them were naked. Startled, Michael turned around and went upstairs. Colston and B.N. got dressed, came upstairs, and drove Michael back to April’s apartment and then to work.
While Michael was at work on the night of August 11, he told his coworker about what he had seen between B.N. and Colston. Michael also told his ex-wife and his cousin about the incident. Michael did not call the police that night, but he believed that eventually someone reported the incident to the Kansas Department of Social & Rehabilitation Services (SRS).
On Monday, August 14, Colston told Donna that it was “being said” that he had committed a sex crime against B.N. Donna and Colston confronted B.N. about the allegation, and she denied that Colston had touched her. Colston and Donna decided to take B.N. to the University of Kansas Medical Center (KU Medical Center) to determine whether she had been raped.
At KU Medical Center, Donna informed the emergency room nurse, Jeanine McCullough, that they were there to prove B.N. had not been molested. McCullough performed a physical examination and checked B.N. for bruising, scratching, and bite marks. She also did a visual examination of B.N.’s vagina and a blind swab with a Q-tip. McCullough called KU Medical Center social worker Tiffany Moore to assist her. During the course of the examination, McCullough and Moore asked B.N. questions and B.N. looked to Donna before replying. Donna refused to allow B.N. to answer many of the questions. McCullough did not see any marks and considered the physical examination normal.
At one point during the examination, Donna and Colston went outside to smoke. While B.N. was alone with McCullough and Moore, B.N. told them she had been molested by a man in the basement apartment where they lived. B.N. did not want to identify the man or describe what had happened. B.N. told McCullough and Moore that when the “red-hair guy” saw them in bed, the man who was molesting her said “don’t come down here,” and the red-hair guy went back upstairs. When Donna returned from the smoke break without Colston, B.N. repeated the same stray.
Moore contacted the Kansas City Police Department. Upon questioning by Officer Nicholas Kohrs, B.N. stated she had been molested by her “mother’s boyfriend.” Kohrs did not conduct an extensive interview with B.N., but she informed him that her mother’s boyfriend had removed her clothes and inserted his penis into her vagina. Later, when Kohrs’ sergeant joined tire interview, B.N. identified Colston as the man who molested her. After the interview, B.N. was placed into SRS’s temporary custody.
Three days later on August 17, 2006, Sarah Byall, a child interview specialist at Sunflower House, conducted a videotaped interview of B.N. B.N. told Byall that while she was downstairs in the basement of Dick and Betty’s house on Friday night checking on Cocoa, Colston asked her to make love to him. She told him no, but he told her to undress. When she did not, he laid her on her mother’s bed and took off her shorts and swimsuit. B.N. started crying. At first, Colston told B.N. he was not going to do anything, but then he pulled her legs apart and put his penis in her vagina. B.N. said that Colston kept his penis in her for 2 to 5 minutes and she tried to push him away because it hurt. Colston tried to malee B.N. roll over and get on her hands and knees, but she could not do it because she was crying too hard. When Michael came down the stairs, Colston stopped.
B.N. told Byall that on the next day, Saturday, Colston took her back to the house to check on Cocoa again. She was still wearing the same swimsuit and shorts. After taking Cocoa out, B.N. sat on her bed. Colston approached her and said he wanted to make love to her again like the first time. She said no but he took off her clothes and started rubbing her right breast. Colston stated he wanted to taste her, and he licked her breast and then her vagina. B.N. stated that she “peed” on the bed. Colston then told B.N. it would not take as long this time, and he put his “private part” in her body. B.N. stated that the whole encounter lasted about 4 minutes.
Stephanie Strout, a physician assistant at Sunflower House, performed a medical examination of B.N. B.N. reported to Strout that there was blood in her swimsuit following the first incident.
On August 18, 2006, the State charged Colston with one count of rape occurring on or about August 11, 2006, in violation of K.S.A. 21-3502; one count of rape occurring on or about August 12, 2006, in violation of K.S.A. 21-3502; one count of aggravated criminal sodomy occurring on or about August 12, 2006, in violation of K.S.A. 21-3506; and one count of aggravated indecent liberties with a child occurring on or about August 12, 2006, in violation of K.S.A. 21-3504. Each count was identified in the charging document as an off-grid person felony.
Trial evidence
The district court held a trial on the charges commencing May 14, 2007. At trial, Donna, Michael, McCullough, Moore, Kohrs, Byall, and Strout testified consistently with the facts set out above. The jury watched tire videotaped interview of B.N. at Sunflower House. In addition, the State presented forensic evidence of blood in the crotch area of B.N.’s swimsuit and evidence of Colston’s DNA in both the crotch area of B.N.’s swimsuit and on B.N.’s cheetah print bed sheet.
For the most part, B.N.’s trial testimony was consistent with her statements at Sunflower House. At trial, B.N. testified that on Friday, August 11, 2006, she had been swimming and tiren went to April’s house to play video games. While at the swimming pool, B.N. would sit on her mother’s lap in the water, but when her mother would get up to smoke a cigarette she would move B.N. to Colston’s lap. B.N. testified that Colston would put her between his legs, which made her feel uncomfortable, so she would move back onto his knee. That evening, Colston suggested he and B.N. go check on Cocoa. B.N. asked her mother to accompany them, but she declined.
When Colston and B.N. arrived at Dick and Betty’s house, B.N. greeted them and then went downstairs to let Cocoa out. After Cocoa came back downstairs, B.N. praised Cocoa on her mother’s bed. Colston, who was sitting on the couch in the basement, told B.N. he wanted to make love to her. B.N. stated she wanted to go upstairs but Colston told her no. Colston then reminded B.N. that she had said she would do anything to keep him from getting mad and that she had been making him mad lately. Colston told B.N. she had to he down on the bed. He told her to take off her swimsuit and shorts. When she did not, he removed them. Colston then took off his shorts. B.N. testified that Colston put “his private” inside of her and that it hurt. Colston positioned himself behind B.N. and told B.N. to get on her hands and knees, but she could not because she was too shaky from crying.
B.N. also testified that Colston licked her privates and it hurt because he had not shaved. She also stated that Colston stuck his finger in her privates and touched her breast, but she provided no details of these acts or the sequence in which they occurred. B.N. testified that the whole incident lasted about 10 minutes, and it ended when Michael came down the stairs and Colston told him to go back up. Colston told B.N. to get dressed and not to tell anybody because if she did he would do something he did not want to do. B.N. did not tell anyone what had happened because she was afraid that Colston would hurt her mother. When she returned to April’s apartment, B.N. used the restroom where she noticed litde red blood dots in her swimsuit.
The next day, B.N. again went swimming, wearing the same swimsuit and shorts. Later, she asked her mother to go with her to take care of Cocoa, but she again declined, telling B.N. that she could go with Colston and it would not take very long. Like the previous day, when B.N. arrived at Dick and Betty’s house, she went downstairs to let Cocoa outside. When Cocoa returned to the basement, B.N. made a point of sitting on her own bed to praise Cocoa, not her mother’s bed. Colston approached B.N., telling her that he was sorry for what he had done the day before but that he wanted to do it one more time and then he would never do it again. B.N. told him he had already promised he would never do it again, and he responded by telling her that promises can be broken. Colston told B.N. to take off her clothes. She was too shaky to comply, so Colston removed her swimsuit and shorts. B.N. testified that Colston “stuck his private” in her “lower private.” B.N. then asked if she could leave to use the restroom, and Colston told her “no, just go pee on [the] bed.” While B.N. urinated, Colston held his finger in her vagina. Colston then told B.N. to get dressed and not to tell anybody what had happened. He told B.N. there would be no evidence of what had happened because she had not started having her periods.
Colston called his mother to testify. Betty Colston testified that on Friday, August 11, Michael had been at her house and he had been intoxicated. She remembered that Colston and B.N. had come over but she never saw Colston and B.N. go downstairs. She testified that they did not come over the next day at all. Donna had testified for the State and she also stated that no one took care of Cocoa on Saturday.
Colston testified in his own defense. He testified that on Friday, while they were swimming, B.N. put her feet on his knees so he could throw her, but she did not sit in his lap. He testified that later in the evening, he and B.N. went to his parents’ house where Michael was very drunk. Colston testified that he took Cocoa outside, and when he came back in, B.N. was in her room and Michael was coming down the steps to the basement. Colston told Michael not to come down because B.N. was changing her clothes. Michael started to come down anyway and Colston told him to go back up. Then Colston also went upstairs and B.N. came up shortly after-wards. Colston denied going back to the house to take care of the dog on Saturday. He testified that they went back to the house on Sunday, but it was so hot they returned to April’s apartment that night to sleep.
During the trial, Donna testified that she was 31 years old and that Colston was almost 20 years older than she. Michael testified that he was 29 years old at the time of trial and his sister April was 31 years old and that Colston was their father.
At the close of the evidence, the district court instructed the jury that Count I of rape allegedly occurred on or about August 11, 2006; Count II of rape allegedly occurred on or about August 12, 2006; Count III of aggravated criminal sodomy allegedly occurred on or about August 11, 2006; and Count IV of aggravated indecent liberties with a child allegedly occurred on or about August 12, 2006. The district court also gave the jury an Allen-type instruction. Colston did not object to any of the jury instructions, and he did not request any additional instructions.
During closing arguments, the State acknowledged that B.N. stated at Sunflower House that the oral sex had occurred on the second day, but in court she stated that it occurred on the first day. The State emphasized that with that exception, all the core details, including the fact that the oral sex occurred only one time, remained consistent.
The juiy submitted a question during deliberations: “What does ‘on or about’ mean with regard to the date a[n] act occurred on Count 4? Can it be applied to the previous date?” The district court responded that with respect to Count TV, “on or about” could refer to either August 11 or 12, but the juiy must be unanimous as to the date the offense occurred.
The jury found Colston guilty of rape as charged in Count I, aggravated criminal sodomy as charged in Count III, and aggravated indecent liberties with a child as charged in Court IV. The jury acquitted Colston of rape as charged in Count II. The pre- sentence investigation report disclosed prior convictions of aggravated robbery, kidnapping, and two counts of rape. The trial court sentenced Colston to three concurrent life sentences without the possibility of parole for 40 years pursuant to K.S.A. 21-4643(b)(l) (Jessica’s Law). Colston timely appealed.
Multiple Acts — Unanimity Instruction
Colston first claims that his convictions of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child involved multiple acts which could have sustained each conviction. Because the district court failed to give the jury a unanimity instruction, Colston argues that all three convictions must be reversed.
Under Kansas law, a jury verdict in a criminal trial must be unanimous. K.S.A. 22-3421. Normally this requirement is satisfied if the trial court instructs the jury that its verdict must be unanimous on each separate count. However, achieving unanimity can be complicated when the State charges a defendant with a single count based on multiple acts. In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). The multiple acts situation is especially common in sex offense cases. In order to ensure jury unanimity as to the specific act for which the defendant is charged, tire trial court must either require the State to elect the particular criminal act upon which it will rely for the conviction or instruct the jury that all jurors must agree that the same underlying criminal act has been proven beyond a reasonable doubt. State v. Voyles, 284 Kan. 239, Syl. ¶ 2, 160 P.3d 794 (2007).
In Voyles, this court set out a three-part test to determine when a multiple acts situation has occurred such that the jury must agree on the same underlying criminal act. First, the court must determine if the case truly involves multiple acts, i.e., whether the defendant’s conduct was part of one act or represents multiple acts which are separate and distinct from each other. Second, the court must consider whether error occurred, i.e., whether there was a failure by the State to elect an act or a failure by the trial court to instruct. Third, the court must determine whether the error is re versible. 284 Kan. at 252-53. We will apply these steps to Colston s case.
Step 1 — Is This A Multiple Acts Case?
The threshold question in a multiple acts analysis is whether the defendant’s conduct is part of one act or represents multiple acts which are separate and distinct from each other. There is no single test for whether conduct constitutes one act or separate and distinct multiple acts. Rather, the courts must look to the facts and the theory of the crime as argued to determine whether a jury verdict implicates unanimity issues. State v. Allen, 290 Kan. 540, Syl. ¶¶ 1, 2, 232 P.3d 861 (2010). Whether a case is a multiple acts case is a question of law over which this court has unlimited review. Voyles, 284 Kan. 239, Syl. ¶ 1.
This court has determined that acts are multiple acts if they are factually separate and distinct. Further, “ ‘[incidents are factually separate when independent criminal acts have occurred at different times or when a later criminal act is motivated by a “fresh impulse.” ’ ” State v. Kesselring, 279 Kan. 671, 683, 112 P.3d 175 (2005) (quoting State v. Hill, 271 Kan. 929, 939, 26 P.3d 1267 [2001]). In addition, this court has identified other factors for determining if there is unitary conduct in a multiple acts case. These factors 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.” State v. Schoonover, 281 Kan. 453, 507, 133 P.3d 48 (2006). We will apply this analysis to determine whether any of Colston’s convictions involved multiple acts.
Count I — Rape
Under K.S.A. 21-3502(a)(2), rape is “sexual intercourse with a child who is under 14 years of age.” K.S.A. 21-3501(1) defines “[s]exual intercourse” as “any penetration of the female sex organ by a finger, the male sex organ or any object. Any penetration, however slight, is sufficient to constitute sexual intercourse.”
Colston argues that the State presented evidence of multiple acts that would support the rape alleged in Count I. Colston identifies four possible acts: (1) B.N. testified that Colston put his penis in her vagina on Friday, August 11; (2) B.N. testified that Colston put his finger in her vagina on Friday, August 11; (3) B.N. testified that Colston put his penis in her vagina on Saturday, August 12; and (4) B.N. testified Colston put his finger inside her vagina as she urinated on her bed on Saturday, August 12.
The State argues that Colston was charged in Count I with rape on August 11 and in Count II with rape on August 12. Because Colston was acquitted of the rape in Count II, the State argues that the alleged acts on August 12 could not possibly be considered as multiple acts supporting the conviction in Count I. This would be the case if the exact date for Count I was August 11 and the exact date for Count II was August 12. However, Colston was charged in Count I with rape occurring on or about August 11 and the jury was so instructed. As Colston points out, the jury could have still considered alleged acts that occurred on August 12 in order to support the rape conviction in Count I.
Generally, the exact date that an offense was allegedly committed is not an element of the crime. This court has held where a defendant is not misled or prejudiced in making his or her defense by the allegation of when the crime occurred, a conviction may properly follow upon sufficient proof that the crime was committed at any time within the period of the statute of limitations. State v. Armstrong, 238 Kan. 559, 561, 712 P.2d 1258 (1986); State v. Jones, 204 Kan. 719, 725, 466 P.2d 283 (1970). We are aware that the jury instruction on rape recommended by Pattern Instructions for Kansas contains language in the venue element that “this act occurred on or about” a specific date in a specific county. PIK Crim. 3d 57.01. Usually the “on or about” language in the charging document and the jury instruction is not problematic. Jones, 204 Kan. 719, Syl. ¶ 4. However, in a case such as this one where the alleged rapes occurred on two consecutive dates, the “on or about” language invites a multiple acts problem.
Here, the State presented evidence of up to four separate acts of sexual intercourse occurring over two consecutive days. The ev idence consisted of B.N.’s trial testimony as well as her videotaped statement. Because of the “on or about” language contained in the jury instructions, the jury could have considered the alleged acts that occurred on August 12 in order to support the rape conviction in Count I. In this instance, the trial court could have avoided confusion by instructing the jury that the rape charge in Count I allegedly occurred only on August 11 and the rape charge in Count II allegedly occurred only on August 12. Presumably the jury’s verdict in Count I was based only on the August 11 behavior, but as an appellate court reviewing the record we cannot be absolutely sure.
We agree with Colston that based on the way Count I was charged and instructed, the jury’s verdict could have been supported by the following multiple acts: (1) B.N.’s testimony that Colston put his penis inside her vagina on August 11; (2) B.N.’s testimony that Colston put his penis inside her vagina on August 12; and (3) B.N.’s testimony that Colston put his finger inside her vagina on August 12. Based on the record, the digital penetration on August 11 did not appear to be a factually separate and distinct act from the penile penetration on that same date. The acts occurred at or near the same time and location without an intervening event between them. However, we find under the specific facts of this case that the digital penetration on August 12 was a factually separate and distinct act from the penile penetration on that same date. Colston had completed the act of penile penetration and the digital penetration appeared to be motivated by a fresh impulse when B.N. asked Colston if she could leave die room to urinate. See, e.g., State v. Zamora, 247 Kan. 684, 693-94, 803 P.2d 568 (1990) (digital penetration followed about 2 minutes later with penile penetration supported two separate counts of rape). Therefore, the rape conviction in Count I involved multiple acts.
Count III — Aggravated Criminal Sodomy
Colston argues that, based on evidence presented at trial, his conviction of aggravated criminal sodomy could have been based on two separate acts. B.N. testified at trial that Colston licked her vagina on Friday, August 11, and she made a videotaped statement at Sunflower House, which was presented to the jury, that Colston licked her vagina on Saturday, August 12. The State argues that B.N. never alleged the sodomy occurred more than once. At trial, she simply changed the date the sodomy occurred from Saturday to Friday, and she never testified that a second oral sexual encounter occurred on Saturday.
Aggravated criminal sodomy is “[sjodomy with a child who is under 14 years of age.” K.S.A. 21-3506. K.S.A. 21-3501(2) defines “[sjodomy” as “oral contact or oral penetration of the female genitalia.”
The jury was instructed that Count III, aggravated criminal sodomy, allegedly occurred on or about August 11, 2006. However, on this charge the “on or about” language in the jury instruction is not problematic. Based on a thorough review of the record, it does not appear that B.N. alleged a second act of sodomy at any time, nor is there evidence of a second instance that could be construed as sodomy under the statutory definition. Both the videotape of B.N.’s statement at Sunflower House and her testimony at trial described only one act of sodomy. The jury’s agreement on the specific date the act occurred was unnecessary. As such, regarding Count III, there is no multiple acts issue, and Colston’s argument fails to survive the threshold question under the Voyles analysis.
Count IV — Aggravated Indecent Liberties
Colston argues that the State presented evidence at trial of multiple acts that would constitute aggravated indecent liberties with a child. This evidence includes: (1) the sexual intercourse (by penetration with Colston’s penis or finger), (2) the oral sex, (3) Colston putting B.N. between his legs while they were at the pool, (4) Colston removing B.N.’s clothes prior to sexual intercourse, and (5) Colston fondling B.N.’s breast. The State argues that it relied on only one act to support the charge of aggravated indecent liberties with a child — the touching and licking of B.N.’s breast.
K.S.A. 21-3504(a)(3) defines “[ajggravated indecent liberties with a child” as “engaging in any of the following acts with a child who is under 14 years of age: (A) any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both.” See State v. Wells, 233 Kan. 94, 98, 573 P.2d 580 (1977). The trial court defined lewd fondling and touching in jury Instruction No. 11 for Count IV regarding aggravated indecent liberties with a child as follows:
“[T]he term lewd fondling or touching’ means a fondling or touching in a manner which tends to undermine the morals of the victim, which is so clearly offensive as to outrage the moral senses of a reasonable person, and which is done with the specific intent to arouse or satisfy the sexual desires of either the victim or the offender or both. Lewd fondling or touching does not require contact with the sex organ of one or the other.”
Colston first argues that evidence of the acts of sexual intercourse or oral sex constituted multiple acts that could have supported the conviction of aggravated indecent liberties with a child. Under the strict statutory definition of the terms, the acts of sexual intercourse and oral sex could support a conviction of aggravated indecent liberties with a child because these acts constitute lewd fondling or touching. Had Colston been charged only with aggravated indecent liberties with a child, the evidence of the acts of sexual intercourse and oral sex would have created a multiple acts situation requiring jury unanimity of the underlying criminal act.
But Colston was charged with separate counts of rape and aggravated criminal sodomy in addition to the aggravated indecent liberties charge. A multiple acts situation occurs only when the State presents evidence of two or more acts that could support a single count. Based on the theory of tire crimes as argued by the State, the evidence of sexual intercourse supported the rape charges against Colston, and the evidence of oral sex supported the aggravated criminal sodomy charge. The jury was instructed on the definition of “sexual intercourse” in connection with the rape charges and the definition of “sodomy” in connection with the aggravated criminal sodomy charge. Also, the juiy was instructed that aggravated indecent liberties with a child required Colston’s specific intent to arouse or to satisfy the sexual desires of either Colston or B.N. or both. The rape and aggravated criminal sodomy charges did not include this element.
As we have stated, there is no single test for determining whether conduct constitutes multiple acts and courts must look to the facts and the theory of the crime as argued to determine whether a juiy verdict implicates unanimity issues. Allen, 290 Kan. 540, Syl. ¶ 2. Based on the separate charges filed against Colston, the evidence presented at trial, the theory of the crimes as argued by the State, and the instructions the jury received, we conclude there is no possibility the jury could have based the aggravated indecent liberties conviction on the acts of sexual intercourse or oral sex.
Colston also asserts that the evidence of his putting B.N. between his legs while they were at the pool could be an act supporting a conviction of aggravated indecent liberties with a child. The State responds that it did not present evidence that Colston engaged in lewd fondling or touching with B.N. when she was on his lap. B.N. testified at trial that Colston pulled her between his legs, which made her feel uncomfortable, so she moved to his knees. Considering the definition of “lewd fondling or touching” which the jury received at trial, Colston’s act of placing B.N. on his lap would not be “so clearly offensive as to outrage the moral senses of a reasonable person.” Without some other evidence of lewdness, this act, by itself, would not support a charge of aggravated indecent liberties with a child.
Colston also claims that his act of removing B.N.’s clothes prior to sexual intercourse would constitute aggravated indecent liberties with a child. B.N. testified that Colston removed her clothes and initially stated he would not do anything to her. Colston paused for a moment and looked at B.N. Then he removed his clothes and had sexual intercourse with her. Applying the four Schoonover factors of unitaiy conduct to these facts, we conclude that Colston’s act of removing B.N.’s clothes was incidental to the sex offenses for which he was charged and did not constitute a separate act supporting aggravated indecent liberties. Colston’s act of removing B.N.’s clothes and his act of sexual intercourse with B.N. occurred at or near the same time and location without an intervening event between the two acts. Although Colston paused for a moment after removing B.N.’s clothes, there was no evidence of a fresh impulse which motivated his act of sexual intercourse with her. In fact, Colston had already told B.N. he wanted to have sexual intercourse with her before he removed her clothes.
This leaves Colston’s act of touching and licking B.N.’s breast as the only act supporting the conviction of aggravated indecent liberties with a child. As with the aggravated criminal sodomy count, B.N. initially stated at Sunflower House that this act occurred on August 12, but in her trial testimony she stated that the touching of her breast occurred on August 11. Although there was some confusion as to the date, B.N. described only one act involving the touching of her breast. The trial court initially instructed the jury that the aggravated indecent liberties count occurred on or about August 12. In response to a question from the jury, the district court clarified that with respect to the aggravated indecent liberties count, “on or about” could refer to either August 11 or 12, but the jury must be unanimous as to the date the offense occurred. As such, regarding Count IV, there is no multiple acts issue, and Colston’s argument fails to survive the threshold question under the Voyles analysis.
Step 2 — Did the Trial Court ErrP
Because we have identified multiple acts supporting the rape conviction in Count I, we must proceed with the second step of the Voyles test, which is to determine whether error was committed. In a multiple acts case, either the State must inform the jury which act to rely upon in its deliberations or the court must instruct the jury to agree on the specific criminal act. The failure to either elect or instruct is error. Voyles, 284 Kan. 239, Syl. ¶ 2. Here, the trial court did not instruct the jury to agree on the specific criminal act supporting the rape charge in Count I. Thus, the question becomes whether the State properly informed the jury which act to rely upon to support the conviction.
In the closing argument, the State relied upon the act of penile penetration on August 11 to support the rape charge in Count I. Even though tire State argued only one act to support Count I, the State failed to properly “elect” the act it was relying upon as required by Voyles. The second part of the Voyles analysis appears to be derived from State v. Timley, 255 Kan. 286, 289, 875 P.2d 242 (1994), which, in turn, utilized the rule applied in State v. Kitchen, 110 Wash. 2d 403, 409, 756 P.2d 105 (1988). The Kitchen court held: “[W]hen the prosecution presents evidence of several acts that could form the basis of one count charged, either the State must tell the jury which act to rely on in its deliberations or the court must instruct the jury to agree on a specific criminal act.” 110 Wash. 2d at 409.
Here, as we have discussed, the State presented evidence of three separate acts which could have supported the rape charge in Count I based on the “on or about” language in the charging document and the jury instruction. Although the State argued that only one act supported the charge, this is not the same as informing the jury that it could not consider evidence of other acts supporting the same charge or that it must agree on the same underlying criminal act. We conclude that as to Count I, error occurred because there was a failure to elect or instruct on the underlying act supporting the charge.
Step 3 — Was It Reversible Error?
The final step in the Voyles analysis is to determine whether the error is reversible error. Whether an error is reversible is governed by harmless error analysis. Colston did not request the trial court to give a unanimity instruction. The ultimate test for harmlessness when a unanimity instruction was not requested is the “clearly erroneous” standard as articulated by the Kansas Legislature in K.S.A. 22-3414(3). Voyles, 284 Kan 239, Syl. ¶ 3. “ ‘Instructions are clearly erroneous only if the reviewing court is firmly convinced that there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred.’ [Citation omitted.]” State v. Carter, 284 Kan. 312, 324, 160 P.3d 457 (2007).
In Voyles, two alleged victims claimed the defendant forced them to perform multiple acts of oral sex on the defendant over a 3-month period. The victims’ statements were inconsistent with each other as to the location of the acts and the number of acts that were committed. Also, the victims’ trial testimony conflicted with earlier statements they had given to the police. The testimony potentially demonstrated that 20 different acts or offenses were committed, but the defendant was charged with only 8 different crimes. 284 Kan. at 242-44. The substantial inconsistencies in the victims’ allegations against the defendant led this court to conclude that the trial court’s failure to give a unanimity instruction to the jury was clearly erroneous under the facts of the case. 284 Kan. at 255.
Here, Colston presented a general denial defense at trial. Colston denied removing B.N.’s clothes or engaging in any of the criminal behavior on August 11 as alleged by the State. He responded to the allegations on August 12 by presenting evidence that he and B.N. did not go to his parents’ house that day. Essentially, Colston’s evidence amounts to the equivalent of, “no I didn’t” in response to B.N.’s allegations. The trial was substantially a credibility contest between Colston and B.N.
For the most part, B.N.’s trial testimony was consistent with her statements at Sunflower House. At trial, B.N. switched the dates of two of the offenses but this inconsistency did not involve the rape charges. B.N.’s testimony was consistent about the location of the acts and the number of times each act occurred. Significantly, the rape allegation in Count I was corroborated by Michael’s eyewitness testimony that he saw Colston on top of B.N. on the bed and both of them were naked. In addition, forensic evidence of Colston’s DNA in the crotch area of B.N.’s swimsuit contradicted Colston’s assertion that “nothing happened” between them. A reasonable doubt on Count II may have been raised by the testimony of Colston, Betty, and Donna that B.N. did not come to the house to take care of the dog on August 12, but this does not undermine the overwhelming evidence that supported the verdict in Count I.
Based upon the record in its entirety, we are not firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. Accordingly, we conclude the trial court’s failure to give a unanimity instruction on the rape charge in Count I was not reversible error.
Multiplicitous Convictions
Next, Colston claims that his conviction of aggravated indecent liberties with a child should be vacated because it is a lesser in- eluded offense of rape when both offenses are charged under K.S.A. 21-4643. Colston does not argue that the trial court should have given the jury a lesser included offense instruction. Instead he argues on appeal that rape and aggravated indecent liberties with a child are multiplicitous when both offenses are charged under the same statute. Colston did not raise this issue at trial, but this court may consider a multiplicity issue for the first time on appeal “to serve the ends of justice or prevent a denial of fundamental rights.” State v. Simmons, 282 Kan. 728, 743, 148 P.3d 525 (2006). The issue of multiplicity is a question of law and this court’s review is unlimited. State v. McCarley, 287 Kan. 167, 177, 195 P.3d 230 (2008).
Multiplicity is the charging of a single offense in several counts of a complaint or information. The principal danger of multiplicity is that it creates the potential for multiple punishments for a single offense, which is prohibited by the Double Jeopardy Clauses of tire Fifth Amendment to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. State v. Thompson, 287 Kan. 238, 244, 200 P.3d 22 (2009).
In Schoonover, this court announced an analytical framework for determining whether multiple convictions subject a defendant to double jeopardy. The overarching inquiry is whether the convictions are for the same offense. This inquiry is divided into two components, both of which must be met for there to be a double jeopardy violation: (1) Do the convictions arise from the same conduct? (2) If so, by statutory definition, are there two offenses or only one? 281 Kan. at 496.
Because both components must be met for there to be a double jeopardy violation, we choose to analyze Colston’s multiplicity argument by proceeding directly to the second component. Assuming for the sake of argument that Colston’s convictions of rape and aggravated indecent liberties with a child arose from the same conduct, the second inquiry is to determine by statutory definition whether there are two offenses or only one. The answer to this inquiry depends on whether the convictions arose from a single statute or multiple statutes. If the convictions arose from a single statute, the unit of prosecution test is applied, i.e., did the legis lature intend to allow more than one unit of prosecution under the statute? If the convictions arose from multiple statutes, the strict elements test is applied, i.e., does one statute require proof of an element not necessary to prove the other offense? 281 Kan. at 497-98.
Colston argues that his convictions of both rape and aggravated indecent liberties with a child arose from K.S.A. 21-4643. But this court has rejected the premise that K.S.A. 21-4643 is a crime-defining statute. See State v. Bello, 289 Kan. 191, 197-98, 211 P.3d 139 (2009); State v. Gonzales, 289 Kan. 351, 367, 212 P.3d 215 (2009). Instead, K.S.A. 21-4643 is the sentencing statute for certain sex offenses, including rape of a child under 14 and aggravated indecent liberties with a child under 14. Here, Colston was charged with rape under K.S.A. 21-3502(a)(2) and with aggravated indecent liberties of a child under K.S.A. 21-3504(a)(3)(A). Because Colston was charged under multiple statutes, the strict elements test is the only test that can be used to determine multiplicity. Schoonover, 281 Kan. at 498.
The crimes of rape and aggravated indecent liberties with a child do not have an identity of elements. Rape requires sexual intercourse. Aggravated indecent liberties consists of lewd fondling or touching done with the intent to arouse or to satisfy the sexual desires of the offender, the child, or both. Aggravated indecent liberties does not require sexual intercourse, and rape does not require the specific intent to arouse or to satisfy the sexual desires of one of the parties. See State v. Hill, 271 Kan. 929, 941, 26 P.3d 1267 (2001) (rape and aggravated indecent liberties not multipli-citous under strict elements test); State v. Belcher, 269 Kan. 2, 8, 4 P.3d 1137 (2000) (aggravated indecent liberties not lesser included offense of rape under strict elements test). Because the crimes do not contain an identity of elements, Colston s convictions of rape and aggravated indecent liberties with a child are not mul-tiplicitous.
Colston’s Age as an Element of the Offenses
Colston next claims that his convictions should be reversed because the district court failed to instruct the jury to determine his age as an essential element of each offense. The State argues that, while recent Kansas case law supports vacating Colston’s sentence for this error, in those cases no evidence was presented to the jury of the defendant’s age. Here, the State argues the jury heard undisputed testimony from which it could conclude beyond a reasonable doubt that Colston was at least 18 years old at the time he committed the crimes. Colston’s arguments address both statutory and constitutional interpretation; therefore, this court’s review is unlimited. Bello, 289 Kan. at 195-96 (citing State v. Bryan, 281 Kan. 157, 159, 130 P.3d 85 [2006]).
Rape and aggravated criminal sodomy with a child under 14 years of age are severity level 1 person felonies under the Kansas Sentencing Guidelines Act. K.S.A. 21- 3502(c); K.S.A. 21-3506(c). Aggravated indecent liberties committed by lewd fondling or touching of a child under 14 years of age is a severity level 3 person felony. K.S.A. 21-3504(c). However, these same crimes are off-grid person felonies when the offender is 18 years of age or older. K.S.A. 21-3502(c); K.S.A. 21-3504(c); K.S.A. 21-3506(c). The sentences for the off-grid crimes are set forth at K.S.A. 21-4643. Colston argues that this court should reverse his convictions of rape, aggravated criminal sodomy, and aggravated indecent liberties with a child because the trial court failed to instruct the jury to determine beyond a reasonable doubt that he was at least 18 years old at the time the crimes were committed.
Several recent cases have addressed this same issue and similar facts. See Bello, 289 Kan. 191; Gonzales, 289 Kan. 351; State v. Morningstar, 289 Kan. 488, 213 P.3d 1045 (2009). Colston is correct that based on Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), the defendant’s age at the time of the offense is an element of the crime if the State seeks to convict the defendant of the more serious, off-grid level of the offense. Bello, 289 Kan. at 199-200; Gonzales, 289 Kan. at 371. In Bello, Gonzales, and Morningstar, this court determined that the failure to instruct the juiy to malee a finding on the defendant’s age was error, but the result of the error was to vacate the defendant’s sentence under K.S.A. 21-4643 and to remand for resentencing under the Kansas sentencing guidelines as a grid offense. Bello, 289 Kan. at 200; Gonzales, 289 Kan. at 371; Morningstar, 289 Kan. at 495.
In Bello, Gonzales, and Morningstar, the State had presented no evidence of the defendant’s age. Here, the State notes there was undisputed testimony of Colston’s age presented at the trial. Donna testified that she was 31 years old and that Colston was almost 20 years older than she. Michael testified that he was 29 years old at the time of trial and his sister April was 31 years old and that Colston was their father. Based on this evidence, the State argues that tire trial court’s failure to instruct the juiy to determine Colston’s age was harmless error and his off-grid sentences under K.S.A. 21-4643 should be upheld.
Whether an Apprendi violation is subject to a harmless error analysis was recently addressed by this court in State v. Reyna, 290 Kan. 666, 234 P.3d 761 (2010). In Reyna, the defendant was convicted of four counts of aggravated indecent liberties with a child. He was sentenced to life without possibility of parole for 25 years pursuant to K.S.A. 21-4643. The trial court did not instruct the jury that it needed to determine the defendant was at least 18 years old when the crimes were committed. However, the defendant testified at trial that he was 37 years old.
On appeal, this court recognized that in State v. Daniels, 278 Kan. 53, 56-63, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004), we reviewed a case in which the district court had inadvertently omitted the element of bodily harm from the jury instruction on aggravated robbery. The element of bodily harm distinguished an aggravated robbeiy from a simple robbeiy. But because the trial evidence of bodily harm was undisputed and overwhelming, the Daniels court found the error to be harmless. 278 Kan. at 63; see also State v. Redford, 242 Kan. 658, 671-72, 750 P.2d 1013 (1988) (omitted element that victim was overcome by force or fear in rape instruction was harmless error).
In finding harmless error in Daniels, this court considered the United States Supreme Court decision in Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999). Neder was a pre-Apprendi case in which the trial court had taken the issue of materiality from the jury in a trial involving tax fraud. The Supreme Court concluded that refusing to instruct the juiy on the element of materiality was erroneous and unconstitutional. Nonetheless, the Neder Court held the error was not the type that it had previously found to be structural error, i.e., that type of fundamental constitutional error which is so intrinsically harmful as to require automatic reversal. 527 U.S. at 8. The Neder Court determined that “where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the juiy verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.” 527 U.S. at 17.
This court in Reyna also relied on Washington v. Recuenco, 548 U.S. 212, 165 L. Ed. 2d 466, 126 S. Ct. 2546 (2006), in which the United States Supreme Court addressed whether an Apprendi violation is structural error. In Recuenco, the defendant was charged with assault with a deadly weapon, specifically, a handgun. The special verdict form returned by the juiy indicated the jury found a deadly weapon involved, but failed to make the specific finding of a handgun. The trial court imposed a 3-year sentence enhancement for use of a handgun instead of the 1-year enhancement that applied to the use of a deadly weapon. On appeal, the Court determined the case was indistinguishable from Neder except that Neder involved the failure to instruct the jury on an element of the crime rather than the failure to instruct the jury on a sentencing factor. 548 U.S. at 220. The Court went on to conclude that “failure to submit a sentencing factor to the jury, like failure to submit an element to the juiy, is not structural error.” 548 U.S. at 222.
Based on these decisions, this court determined in Reyna that we will apply harmless error analysis to the omission of an element from the instructions to the jury. Reyna, 290 Kan. 666, Syl. ¶ 9. When a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless. 290 Kan. 666, Syl. ¶ 10. We also determined that characterizing the omission of an element from the instructions to the juiy as an Apprendi-type error, i.e., as judicial factfinding of the omitted element, when that element enhances the maximum applicable sentence, does not change the harmless error analysis. 290 Kan. 666, Syl. ¶ 11. In light of the undisputed evidence that the defendant was 37 years old, we held in Reyna that the trial court’s failure to instruct the jury to determine the defendant’s age at the time the crimes were committed was harmless error. 290 Kan. at 682.
Our holding in Reyna controls the outcome of Colston’s case. Here, the undisputed evidence presented at Colston’s trial established beyond a reasonable doubt that he was at least 18 years old when the crimes were committed. We are convinced the jury verdict would have been the same absent the error in the instructions. Accordingly, we uphold Colston’s off-grid sentences under K.S.A. 21-4643.
At.t.en-type Instruction
Colston next claims that the trial court committed reversible error when it gave an Allen-type instruction to the jury before deliberations began. See Allen v. United States, 164 U.S. 492, 41 L. Ed. 528, 17 S. Ct. 154 (1896). Colston did not object to the instruction when it was given to the jury; therefore, this court reviews the instruction under a clearly erroneous standard. K.S.A. 22-3414(3). As previously stated, 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. Carter, 284 Kan. at 324.
The trial court provided Instruction No. 13 to the jury:
“Like all cases, this is an important case. If you fail to reach a decision on some or all of the charges, that charge or charges are left undecided for the time being. It is then up to the state to decide whether to resubmit the undecided charges to a different jury at a later time. Another trial would be a burden on both sides.
“This does not mean diat those favoring any particular position should surrender their honest convictions as to the weight or effect of any evidence solely because of the opinion of other jurors or because of the importance of arriving at a decision.
“This does mean that you should give respectful consideration to each other’s views and talk over any differences of opinion in a spirit of fairness and candor. If at all possible, you should resolve any differences and come to a common conclusion.
“You may be leisurely in your deliberations as tire occasion may require and take all the time you feel necessary.” (Emphasis added.)
The language from Instruction No. 13 came from a prior version of PIK Crim. 3d 68.12, commonly known as the “deadlocked jury” instruction. In the current pattern instruction, the language “another trial would be a burden on both sides” has been removed. Otherwise, the trial court’s Instruction No. 13 tracks almost identically with the current pattern instruction.
This court has specifically addressed the language at issue in two recent cases. In State v. Salts, 288 Kan. 263, 266, 200 P.3d 464 (2009), this court held that the language “[a]nother trial would be a burden on both sides” is error because it is misleading and inaccurate; however, it was not reversible error. In Salts, the instruction was given before the jury deliberated and was included with all the other jury instructions. The defendant did not object to the instruction. The Salts court found that, under the clearly erroneous standard, there was no real possibility that the jury would have returned a different verdict if the error had not occurred. 288 Kan. at 267; see also State v. Ellmaker, 289 Kan. 1132, 1146-47, 221 P.3d 1105 (2009) (same challenged language in jury instruction was erroneous, but not clearly erroneous).
Colston argues that the language “another trial would be a burden on both sides” is reversible error in his case because there is a real possibility the jury would have rendered a different verdict without that language. First, he argues that the jury did not believe all of B.N.’s testimony because it acquitted Colston on Count II. Second, he argues that the jury was having a difficult time with Count IV because it sent a question to the trial court about the meaning of “on or about” with regard to the date the act was committed. Colston asserts that these two facts indicate that the jury may have decided to resolve its differences and reach a verdict to avoid creating an additional burden upon retrial.
As the State points out, the fact that the jury acquitted Colston of Count II does not, by itself, indicate that the jury did not believe B.N.’s testimony. Rather, it indicates that the State failed to prove Count II beyond a reasonable doubt. While the trial court did receive a question from the jury about Count IV, the question did not clearly indicate that the juiy was deadlocked. There is no reason to believe that the jury compromised its verdict on any of the counts as a result of the language in Instruction No. 13.
Instruction No. 13 was given before the jury deliberated and was included with all the other jury instructions. Colston did not object to the instruction. The jury reached its verdicts on the same afternoon that deliberations began, so the jury deliberations were not more than a few hours. After the verdicts were read, the trial court polled the jury and each juror stated he or she agreed with the verdicts. The evidence against Colston was substantial. This case is similar to Salts and Ellmaker regarding the effect of the Allen-type instruction, and the result should be the same. We are not firmly convinced there is a real possibility the jury would have rendered a different verdict if the trial error had not occurred. Accordingly, we conclude the trial court did not commit reversible error by giving Instruction No. 13.
Cumulative Error
Finally, Colston claims that the cumulative impact of the errors in his case deprived him of his right to a fair trial.
“ ‘ “Cumulative trial errors, when considered collectively, may be so great as to require reversal of the defendant’s conviction. The test is whether the totality of circumstances substantially prejudiced the defendant and denied [the defendant] a fair trial. No prejudicial error may be found upon this cumulative effect rule, however, if the evidence is overwhelming against the defendant.” [Citations omitted.]’ ” Ellmaker, 289 Kan. at 1156 (quoting State v. Brown, 285 Kan. 261, 305-06, 173 P.3d 612 [2007]).
As we have concluded, some of the trial court’s jury instructions were erroneous, but not clearly erroneous. However, none of the errors involved the admission of questionable evidence, and the evidence of Colston’s guilt was substantial if not overwhelming. B.N.’s statements of what happened remained consistent. Although she switched the dates of two of the offenses at trial, the details about the acts remained consistent, as did the number of times each act occurred. Michael corroborated B.N.’s testimony about the incident on August 11, testifying that he saw B.N. and Colston naked in the basement. The State also presented forensic evidence of Colston’s DNA on the crotch of B.N.’s swimsuit. Given the evidence, we are firmly convinced that the cumulative effect of any errors committed by the trial court did not deprive Colston of his right to a fair trial.
Affirmed.
Davis, C.J., not participating.
Malone, J., assigned.
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On March 28, 2008, this court suspended the petitioner, Stephen D. Harris, from the practice of law in Kansas for a period of 3 months. See In re Harris, 285 Kan. 1115, 180 P.3d 558 (2008). Before reinstatement, the petitioner was required to pay the costs of the disciplinary action, maintain his CLE requirements, and pay his current attorney registration fee.
The Disciplinary Administrator s office has verified that the petitioner has fully complied with tire conditions imposed upon him. This court finds that the petitioner, Stephen D. Harris, should be reinstated to the practice of law in the state of Kansas.
It Is Therefore Ordered that the petitioner be reinstated to the practice of law in the state of Kansas as of the date of this order.
It Is Further Ordered that this order of reinstatement shall be published in the official Kansas Reports. | [
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The opinion of the court was delivered by
Davis, C.J.:
On April 18, 2008, Jared Oehlert pled guilty and was convicted of rape in violation of K.S.A. 21-3502(a)(2) which carries with it a mandatory life sentence or minimum of not less than 25 years and postrelease supervision for life pursuant to K.S.A. 21-4643 and K.S.A. 2008 Supp. 22-3717. The district court granted his downward durational motion, and he was sentenced to 60 months with the Department of Corrections and postrelease supervision for life.
For the first time on appeal, Oehlert challenges his postrelease supervision for life as cruel or unusual punishment under the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights. His argument is contrary to our recent decisions; therefore, we reject his argument and affirm his sentence.
FACTS AND PROCEDURAL BACKGROUND
Under the plea agreement, the State dismissed an aggravated sodomy charge and agreed to recommend a durational departure to a severity level one on the sentencing grid in exchange for Oeh-lert’s plea of guilty to one count of rape charged as an off-grid felony. Oehlert filed a motion for durational departure.
In support of his motion, Oehlert stated: The victim was a willing participant and aggressor in the criminal conduct; the victim consented to sexual intercourse; the victim lied to law enforcement, stating that, “they were not having sex, they were just fooling around”; the degree of harm or loss attributed to the crime was significantly less than typical for such offense; the age difference between him and the victim was approximately 6 years; the victim supported a reduced sentence; he has ADD and ADHD rendering him emotionally immature; he accepted responsibility at his initial interview with law enforcement and in court; he was young enough to address and treat the underlying issues that led to his conduct; and the State had recommended more lenient sentences in other sex offense cases similar to Oehlert’s.
The State asked the district court to impose a sentence of 234 months pursuant to the sentencing guidelines, along with both lifetime sex offender registration and lifetime postrelease supervision. Oehlert asked the district court for a sentence of 12 to 60 months.
The district court granted Oehlert’s motion for durational departure, sentenced him to 60 months with the Department of Cor rections and lifetime postrelease supervision, and ordered him to register as a sex offender for life. In support of this order, the district court listed a number of substantial and compelling reasons it found to grant its departure, including: Oehlert accepted responsibility for his actions by cooperating with law enforcement, by pleading guilty, and by expressing remorse at his sentencing hearing; the State recommended a durational departure to a guideline sentence; Oehlert had no prior convictions for a sex offense; the victim consented to the sexual intercourse and voluntarily participated in the criminal conduct; the degree of harm or loss attributed to the current crime was significantly less than typical; and Oehlert had learning disabilities, emotional immaturity, and a complicated and dysfunctional family history.
Oehlert filed a timely appeal. This court has jurisdiction under K.S.A. 22-3601(b)(l) (conviction of an off-grid crime).
CRUEL AND UNUSUAL PUNISHMENT
Constitutional issues, in general, cannot be raised for the first time on appeal. State v. Ortega-Cadelan, 287 Kan. 157, 159, 194 P.3d 1195 (2008). However, this court has recognized three exceptions to the general rule: “(1) The newly asserted claim involves only a question of law arising on proved or admitted facts and is determinative of the case; (2) consideration of the claim is necessary to serve the ends of justice or to prevent the denial of fundamental rights; and (3) the district court is right for the wrong reasons.” Ortega-Cadelan, 287 Kan. at 159; see Pierce v. Board of County Commissioners, 200 Kan. 74, 80-81, 434 P.2d 858 (1967). In Ortega-Cadelan, this court fully reviewed the Pierce exceptions, and our recent decisions have refused to consider the merits of this issue when a cruel and unusual punishment challenge is raised for the first time on appeal. Ortega-Cadelan, 287 Kan. 157, Syl. ¶ 2; see State v. Mondragon, 289 Kan. 1158, Syl. ¶ 2, 220 P.3d 369 (2009); State v. Seward, 289 Kan. 715, 718, 217 P.3d 443 (2009); State v. Easterling, 289 Kan. 470, 485-87, 213 P.3d 418 (2009); State v. Spotts, 288 Kan. 650, Syl. ¶ 1, 206 P.3d 510 (2009); State v. Thomas, 288 Kan. 157, Syl. ¶ 1, 199 P.3d 1265 (2009).
Oehlert correctly notes that the proper analysis for whether a punishment is cruel or unusual is controlled by the three-prong test stated in State v. Freeman, 223 Kan. 362, 574 P.2d 950 (1978). The Freeman test states:
“(1) The nature of the offense and the character of the offender should be examined with particular regard to the degree of danger present to society; relevant to this inquiry are the facts of the crime, the violent or nonviolent nature of the offense, the extent of culpability for the injury resulting, and the penological purposes of the prescribed punishment;
“(2) A comparison of the punishment with punishments imposed in this jurisdiction for more serious offenses, and if among them are found more serious crimes punished less severely than the offense in question the challenged penalty is to that extent suspect; and
“(3) A comparison of the penalty with punishments in other jurisdictions for the same offense.” Freeman, 223 Kan. at 367.
In recent opinions, we have held that the Freeman factors include both legal and factual inquiries and that no single factor controls the outcome. Mondragon, 289 Kan. at 1163; Seward, 289 Kan. at 719; Easterling, 289 Kan. at 486; Spotts, 288 Kan. at 653; Thomas, 288 Kan. at 161; Ortega-Cadelan, 287 Kan. at 161.
Oehlert argues that the record in this case is sufficient for review; however, he fails to point to district court findings regarding the Freeman factors. Instead, he urges that the district court’s findings regarding mitigating factors used to support its order for a dura-tional departure are sufficient for this court to conduct a Freeman analysis. This court disagrees. “This argument ignores the role of this court: Appellate courts do not make factual findings but review those made by district courts. [Citation omitted.]” Thomas, 288 Kan. at 161.
In Seward, this court remanded the case to the district court so that factual findings on the issue of cruel and unusual punishment could be made. In that case, the defendant mentioned a cruel and unusual punishment argument during plea negotiations, in his motion for downward departure, and during his sentencing hearing. Upon remand, this court cautioned:
“We emphasize that we believe this case to be exceptional. In the future, a defendant who wishes to appeal on the basis of a constitutional challenge to a sentencing statute must ensure the findings and conclusions by file district judge are sufficient to support appellate argument, by filing of a motion invoking the judge’s duty under Rule 165, if necessary.” Seward, 289 Kan. at 721.
See Supreme Court Rule 165 (2009 Kan. Ct. R. Annot. 239).
Oehlert did not raise the issue of cruel and unusual punishment during plea negotiations, in his motion for durational departure, at his sentencing hearing, or at any other point in the record before us. Therefore, no factual findings regarding the Freeman factors were made by the district court upon which this court may base its analysis.
Oehlert’s argument that his lifetime postrelease supervision is cruel and unusual punishment cannot be presented for the first time on appeal.
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The opinion of the court was delivered by
Rosen, J.:
On review of an opinion by the Court of Appeals, Alfonzal Jones appeals from his convictions of one count of aggravated kidnapping and one count of rape. Because Jones was denied his right under the Sixth Amendment to represent himself at his preliminary hearing under rules articulated by the United States Supreme Court, we reverse.
W.H., Jones’ ex-fiancée, testified that on the morning of December 28, 2005, she was driving her car in Kansas City, Kansas, when a van appeared and rammed die driver s side of her car. She then saw Jones jump out of the driver s side holding a gun and starting to run in her direction. She accelerated and drove through an intersection, where she was struck by another vehicle and was unable to drive any further. Jones pulled her out of the car by her hair while holding a gun to her head. She attempted to resist him, in the process losing her jacket as he dragged her along. After he threw her to the ground, she stopped resisting and walked with him to an apartment. In the apartment, she undressed and had sexual intercourse with Jones. After Jones left, she made her way to a friend’s apartment and called 911.
James Flowers, who was driving the truck with which she collided after she passed through the intersection, provided testimony consistent with her account. When Flowers got out of his truck following the collision, he heard shouting and saw Jones pulling a woman by the hair and pointing an automatic weapon at her. He heard the driver screaming and heard Jones say, “Get out of the car, bitch.” Jones turned the weapon toward Flowers, who then walked away from them. Flowers called 911 on his cell phone while he watched Jones pulling the woman along by her hair and her jacket.
When police arrived, they found a weapons clip on the roadway by the driver s door of the white car. They also found a black jacket with a cell phone in a pocket on the sidewalk a short distance from the accident. Jones was charged with aggravated kidnapping and rape based on his actions toward W.H. and aggravated assault based on the allegation that he threatened Flowers.
Shortly following his arrest, Jones began to file numerous and often repetitive pro se motions in district court, most of which were denied. However, the court granted a motion filed by his appointed counsel requesting a mental competency evaluation. Carol Bariy, LCP at the Wyandot Center for Community Behavioral Healthcare, issued a letter to the district court summarizing the results of the evaluation. The letter stated that Jones had prior diagnoses of schizoaffective disorder and bipolar disorder and that he had not been taking medicine prescribed for the disorder. After his incarceration, Jones asked to resume his psychotropic medication, and his behavior then became stable and incident-free.
Barry went on to conclude:
“In regard to his understanding of legal proceedings, he was knowledgeable of his legal charges, the meaning of the charges, and the possible consequences if found guilty. Despite verbalizing that he is not interested in pursuing a plea agreement, he verbalized a basic understanding of plea bargaining. He is aware of basic courtroom rules, terminology, and procedures. He is also aware of appropriate courtroom behavior. He was educated on the behavioral concerns observed and verbalized insight into how his past courtroom behavior could raise the question of competency. He was able to express a goal of engaging in appropriate courtroom behavior, including managing his emotions and utilizing his attorney.
“Mr. Jones recalled his attorney’s name and verbalized that he is aware of options to obtain a new attorney or to consider representing himself. He reported that he has sometimes has [sic] difficulty trusting his attorney because of his perception that she ‘does not communicate’ with him or meet with him often ‘enough.’ He further reported that he has disagreed with advice given in regard to the filing of some motions. He verbalized his ability and his willingness to communicate and talk with her, should they have future contact. He also verbalized an understanding and willingness to utilize standby counsel. Although Mr. Jones has questionable trust in his attorney, his concerns are reality-based and not indicative of a psychotic process.”
The letter concluded that Jones was competent to stand trial and to assist in his own defense.
On August 17, 2006, a preliminary hearing was conducted at which Flowers and W.H. testified about the incidents of December 28. Jones’ counsel presented the court with his motion to represent himself, which the court denied.
Following trial, the jury found Jones guilty of aggravated kidnapping and rape, and not guilty of aggravated assault. The district court sentenced Jones to a standard term of 586 months for the aggravated kidnapping conviction, to run concurrently with a standard 155-month term for the rape conviction. On appeal, the Court of Appeals affirmed the conviction, and this court granted review on all issues.
The dispositive issue in this case is whether the district court’s denial of Jones’ motion to represent himself at his preliminary hearing constitutes reversible error. At the preliminaiy hearing, Jones’ counsel presented to the court Jones’ motion to represent himself. The court conducted a cursory review of Jones’ legal training, concluded that Jones was not well trained in the law, and denied the motion. This ruling was erroneous based on the test that the trial court used, but the Court of Appeals concluded that the error was harmless. On review, Jones urges this court to find that such error is structural and not susceptible to harmless-error analysis.
Generally, the extent of the right to assistance of counsel is a question of law over which this court exercises unlimited review. See Robertson v. State, 288 Kan. 217, 227, 201 P.3d 691 (2007); see also United States v. Jones, 489 F.3d 243, 247 (6th Cir. 2007) (appellate court reviews de novo the legal question of scope of right to self-representation).
A defendant who clearly and unequivocally expresses a wish to proceed pro se has the right to represent himself or herself after a knowing and intelligent waiver of his or her right to counsel. A knowing and intelligent waiver requires that the defendant be informed of “the dangers and disadvantages of self-representation, so that the record will establish that ‘he knows what he is doing and his choice is made with eyes open.’ ” Faretta v. California, 422 U.S. 806, 835, 45 L. Ed. 2d 562, 95 S. Ct. 2525 (1975); see State v. Vann, 280 Kan. 782, Syl. ¶ 3, 127 P.3d 307 (2006). The right to represent oneself is implicit in the structure of the Sixth Amendment. “The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails.” 422 U.S. at 819. A trial court may not measure a defendant’s competence to waive his or her right to counsel by evaluating the defendant’s “technical legal knowledge.” Godinez v. Moran, 509 U.S. 389, 399-400, 125 L. Ed. 2d 321, 113 S. Ct. 2680 (1993).
At the preliminary hearing, Jones’ counsel asked the court to consider Jones’ motion to represent himself. The following discussion ensued:
“MS. MCBRATNEY [appointed counsel for Jones]: Just proceduraHy, your Honor, on the motion for self-representation, again, I indicate there are factors that the Court proceduraHy should inquire directly from the defendant his level of education, any special training he has in the field of the law, things of that nature. There’s several factors. So I think that just requires inquiry by the Court.
“THE COURT: Right.
“MS. MCBRATNEY: And then in reference to ineffective assistance of counsel, I think the court, you know, should just get the client’s statements on that and what he believes supports that and make a ruling.
“THE COURT: Okay. Let me ask you, Mr. Jones. What how many years of formal education have you had, sir?
“THE DEFENDANT: I have a GED.
“THE COURT: Okay. Do you have any specialized training anywhere at any coHege level in the law?
“THE DEFENDANT: I’m studying law.
“THE COURT: Where did you study law.
“THE DEFENDANT: I studied ‘em out the book. [Sic.]
“THE COURT: What book?
“THE DEFENDANT: Law books.
“THE COURT: TeU me what kind of law books you studied.
“THE DEFENDANT: I study on the Kansas Court Rules and Procedures 2005. I studied cases.
“THE COURT: Okay. And this you’ve when did you do this?
“THE DEFENDANT: I did it probably I’ve been studying law for about 10 years.
“THE COURT: Okay. WeU, I have never and I don’t intend to start now allowing people who do not have any specialized legal training that have just done some reading, I’m not going to let them represent themselves. You can assist. I’m going to keep—
“THE DEFENDANT: So are you saying you deny me my rights to self-representation?
“THE COURT: I’m saying that you must have an attorney sitting with you and you can work—
“THE DEFENDANT: So basically you’re telling me you deny me my right for self-representation?
“THE COURT: Yes. And you can do whatever you like on that, but I’m going to deny the motion.
“THE DEFENDANT: May I ask a question?
“THE COURT: Certainly.
“THE DEFENDANT: How can you deny me my rights to represent myself? This is my right under the Sixth Amendment.
“THE COURT: Not — not with what you told me that you just read some books.
“THE DEFENDANT: The Sixth Amendment says I can do it.
“THE COURT: You’re misinterpreting the Sixth Amendment. There’s case law on this matter and if I determine that your level of self taught—
“THE DEFENDANT: Just because I haven’t went to college? Is that what you mean my level of education?
“THE COURT: I don’t believe anybody that just picks up a book and reads a book is competent to try a case when you have an attorney who has a college degree plus a law degree.
“THE DEFENDANT: What if I don’t want the attorney? You can’t force me to have this attorney if I don’t want her, if I don’t want her representing me.
“THE COURT: Just watch me. Just watch me. Call your first witness.”
At that time, the State called its first witness, and the hearing proceeded with McBratney representing Jones. A different judge, however, conducted a renewed hearing on Jones’ motion to represent himself at the beginning of the trial. The court engaged in a lengthy discussion with him, at the conclusion of which Jones agreed to allow his appointed counsel to continue to represent him.
The State concedes and this court agrees that the trial court committed error in denying Jones’ motion. It failed to make the critical inquiiy: whether Jones’ waiver of counsel was knowing and intelligent. See Faretta, 422 U.S. at 835. The court relied instead on a clearly wrong reason: that Jones was not adequately trained in the law. See Godinez, 509 U.S. at 399-400. Furthermore, Jones’ numerous pro se motions demonstrated an ability to comprehend the law and to articulate legal arguments. His psychological as sessment found him able to understand and participate in his defense.
Our analysis next proceeds to determine whether the Sixth Amendment right to self-representation extended to Jones’ preliminary hearing. The right to counsel applies at all “critical stages” of the criminal process of an accused who faces incarceration. Iowa v. Tovar, 541 U.S. 77, 80, 158 L. Ed. 2d 209, 124 S. Ct. 1379 (2004). This right attaches to pretrial proceedings where the State has committed to prosecuting the accused. State v. Bristor, 236 Kan. 313, 319, 691 P.2d 1 (1984).
The reasoning by the Supreme Court in Faretta supports the conclusion that the right to self-representation extends to all phases of the criminal proceeding:
“The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be ‘informed of the nature and cause of the accusation,’ who must be ‘confronted with the witnesses against him,’ and who must be accorded ‘compulsory process for obtaining witnesses in his favor.’ ” 422 U.S. at 819-20.
A preliminary hearing is a right that is mandated in Kansas by statute; it is not an express constitutional right. See K.S.A. 22-2902; State v. Knighten, 260 Kan. 47, 55, 917 P.2d 1324 (1996). The preliminary hearing establishes standards and procedures for criminal prosecution that are derived from the Fourth Amendment and its common-law antecedents. Gerstein v. Pugh, 420 U.S. 103, 111, 43 L. Ed. 2d 54, 95 S. Ct. 854 (1975); In re D.E.R., 290 Kan. 306, 311-12, 225 P.3d 1187 (2010). A defendant has the right to be present in person at a preliminary hearing, to introduce evidence on the defendant’s own behalf, and to cross-examine witnesses against the defendant. K.S.A. 22-2902(3). The preliminary hearing is the method utilized in Kansas to satisfy the Fourth Amendment right of a person to be free from extended pretrial restraint of liberty without a judicial determination of probable cause to support the detention or restriction on liberty. In re D.E.R., 290 Kan. at 312.
A preliminary hearing is often a critical stage of the criminal process. See, e.g., Moore v. Illinois, 434 U.S. 220, 54 L. Ed. 2d 424, 98 S. Ct. 458 (1977) (identification of defendant at preliminary hearing); Coleman v. Alabama, 399 U.S. 1, 9, 26 L. Ed. 2d 387, 90 S. Ct. 1999 (1970) (“guiding hand” of counsel at preliminary hearing is essential to protect accused against erroneous or improper prosecution: examination of witnesses may expose fatal weaknesses in the State’s case that may lead magistrate to refuse to bind the accused over; interrogation of witnesses can fashion impeachment tool for use in cross-examination of State’s witnesses at trial; defendant can discover nature of case and enable preparation of proper defense; and effective arguments can be made on such matters as necessity for early psychiatric examination or bail); White v. Maryland, 373 U.S. 59, 60, 10 L. Ed. 2d 193, 83 S. Ct. 1050 (1963) (whatever normal function of preliminary hearing under Maryland law might be, preliminary hearing was critical stage of proceeding for right-to-counsel purposes where defendant entered guilty plea that was later introduced in evidence against him at trial).
We note that several older decisions of this court held that Sixth Amendment right-to-counsel protections did not automatically attach at preliminary hearings. See, e.g., Byrd v. State, 196 Kan. 466, 413 P.2d 61 (1966); State v. Lewis, 195 Kan. 389, 405 P.2d 796 (1965), overruled on other grounds State v. Bly, 215 Kan. 168, 523 P.2d 397 (1974); Tarr v. State, 194 Kan. 798, 402 P.2d 309 (1965); Bergin v. State, 194 Kan. 656, 400 P.2d 978 (1965). These decisions were largely fact-specific and were issued before the critical-stage analysis fully evolved in the United States Supreme Court.
As the present case illustrates, the preliminary hearing is a critical phase of the criminal prosecution. In addition to determining whether probable cause existed sufficient to bring Jones to trial, sworn testimony was taken to which both the State and Jones referred during examination of witnesses at the jury trial. For example, in cross-examining W.H. at trial, Jones’ counsel repeatedly asked her to read from her testimony at the preliminary hearing, where she stated that she had consented to having sex with Jones and that it was an affectionate situation. W.H. was also asked about her earlier statement in which she said that the interviewing detective was leading her to say certain things and that he mouthed to her to say that she was scared. Further questions compared W.H.’s statements at the preliminary hearing with her trial testi mony, including W.H. telling the court at the preliminary hearing that she had not been raped.
The Court of Appeals determined that it was error to deny Jones his right to represent himself at the preliminary hearing but concluded that, because the ruling in question occurred at the preliminary hearing instead of at trial, it is subject to harmless-error analysis. The Court of Appeals noted that Jones did not allege that the deprivation of his right to self-representation at the preliminary hearing affected the trial, the convictions, or the structural integrity of the criminal proceedings. After reviewing the record, the Court of Appeals found that the violation of Jones’ Sixth Amendment right at the preliminary hearing had litde or no likelihood of changing the outcome of his trial and was therefore harmless error. 40 Kan. App. 2d at 1154-55.
As a general principle, after an accused has gone to trial and has been found guilty beyond a reasonable doubt, any error at the preliminary hearing stage is considered harmless unless it appears that the error caused prejudice at trial. State v. Butler, 257 Kan. 1043, 1062, 897 P.2d 1007 (1995).
In the present case, the record contains no suggestion that Jones’ counsel performed inadequately at either the preliminary hearing or the trial, and Jones makes no argument that, had he proceeded pro se, he would have elicited any evidence or raised any issue at the preliminary hearing that would have put him in a better posture at trial. The lack of prejudice is not, however, the end of the analysis in this case.
We have already observed that the preliminary hearing was a critical stage in Jones’ prosecution. His right to represent himself was as vested at the hearing as it was at trial. To hold that there is no redress for a trial court denying a defendant an essential constitutional right at a preliminary hearing because the error ultimately becomes subordinate to a trial properly conducted with counsel is to turn the constitutional right into an illusory right.
The Court of Appeals looked to People v. Wardlaw, 6 N.Y.3d 556, 816 N.Y.S.2d 399, 849 N.E.2d 258 (2006), where the New York Court of Appeals found that failure to provide a defendant with counsel at a suppression hearing was harmless error because even a successful suppression could not have changed the outcome of the trial.
The United States Supreme Court has rejected this land of analysis at the trial stage. “Since the right of self-representation is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant, its denial is not amenable to ‘harmless error analysis. The right is either respected or denied; its deprivation cannot be harmless.” McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 79 L. Ed. 2d 122, 104 S. Ct. 944 (1984). If a defendant’s right to represent himself or herself is violated, the defendant is entitled to a new trial regardless of whether he or she can demonstrate prejudice. See, e.g., Flanagan v. United States, 465 U.S. 259, 268, 79 L. Ed. 2d 288, 104 S. Ct. 1051 (1984) (violating Sixth Amendment right to represent oneself does not require showing of prejudice to defense in order to obtain reversal).
Even the Wardlaw court cautioned that harmless error does not excuse every violation of the right to self-representation:
“We add a word of caution: Our holding does not imply that the harmless error rule can always be applied where the right to counsel has been violated. . . . [W]here a deprivation of the right to counsel was egregious, and where to leave it unremedied might invite future abuse, appellate courts may grant relief even though the defendant was not prejudiced by the error.” 6 N.Y.3d at 560-61.
Denying a defendant the right to self-representation at the preliminary hearing is the kind of violation of an essential constitutional right that can be addressed only on appeal. See Flanagan, 465 U.S. at 268 (denials of Sixth Amendment rights to counsel are not susceptible to interlocutory appeal; they are effectively reviewable on appeal).
Errors are structural when they “defy analysis by ‘harmless-error standards’ ” because they “affect[] the framework within which the trial proceeds.” Arizona v. Fulminante, 499 U.S. 279, 309-10, 113 L. Ed. 2d 302, 111 S. Ct. 1246 (1991). A violation of a Sixth Amendment right to counsel is subject to structural error analysis.
“[Ejrroneous deprivation of the right to counsel of choice, ‘with consequences that are necessarily unquantifiable and indeterminate, unquestionably qualifies as “structural error.” ’. . . Many counseled decisions, including those involving plea bargains and cooperation with the government, do "not even concern the conduct of the trial at all. Harmless-error analysis in such a context would be a speculative inquiry into what might have occurred in an alternate universe.” United States v. Gonzalez-Lopez, 548 U.S. 140, 150, 165 L. Ed. 2d 409, 126 S. Ct. 2557 (2006) (quoting Sullivan v. Louisiana, 508 U.S. 275, 282, 124 L. Ed. 2d 182, 113 S. Ct. 2078 [1993]).
We accordingly decline to speculate what might have happened had the district court followed constitutionally mandated procedures in ruling on Jones’ motion to represent himself at the preliminary hearing. We instead reverse the conviction and remand for a new proceeding, commencing with a preliminary hearing.
In light of this ruling, the other issues raised on appeal are moot. We will, however, briefly discuss several issues of alleged trial error that may arise again if Jones is retried.
Jones argued that the trial court erred in admitting evidence relating to prior misconduct without issuing a limiting instruction. The jury heard testimony containing several references to a Protection From Abuse (PFA) order that W.H. intended-to seek on December 28, 2005, the day of the attack. We do not address at this time whether that testimony was properly admitted, but we note that evidence of domestic discord that qualifies as another crime or civil wrong is subject to evaluation for admission under K.S.A. 60-455. See State v. Vasquez, 287 Kan. 40, Syl. ¶ 1, 194 P.2d 563 (2008). In order to admit evidence under K.S.A. 60-455, a court must determine that proposed evidence is relevant to prove a material fact, is disputed, and has probative value that outweighs its potential for producing undue prejudice. Finally, the court must give a limiting instruction informing the jury of the specific purpose for admission. 287 Kan. 40, Syl. ¶ 2.
Jones also challenged a jury instruction on aggravated kidnapping that was broader than the charge contained in the information. Jones was initially charged with aggravated kidnapping based on an intent to commit the crime of rape. The jury instruction, however, followed a broader statutory definition of aggravated kidnapping. Jones argues on appeal that he was denied effective notice of the basis of the charge against him.
“A jury instruction on the elements of a crime that is broader than the complaint charging the crime is erroneous. That error is excusable only where the substantial rights of the defendant are not prejudiced. [Citation omitted.] It is the long-established rule in Kansas that instructions should be confined to issues made by the pleadings and should not be broader or narrower than the information. [Citation omitted.] The charging instrument must set out the specific offense alleged against the defendant in order to inform die defendant of the nature of the accusation against him or her and to protect the defendant from being convicted on the basis of facts that were not contemplated in the initial charges.... The wording of a complaint is binding on the State in pursuing its theoiy before a jury. [Citation omitted]” State v. Trautloff, 289 Kan. 793, 802-03, 217 P.3d 15 (2009).
Under the facts before it, the jury might well have found that the State failed to prove that Jones intended to commit rape at the time that he initiated the kidnapping; he may have intended to terrorize his victim, an element of aggravated kidnapping that the State did not charge but nonetheless was included in the jury instruction. While the evidence might have supported an instruction relating to terror, the charging instrument did not. The State did not seek to amend the information to include the terror element. See State v. Matson, 260 Kan. 366, 370, 921 P.2d 790 (1996) (discussing propriety of amending charges prior to submitting case to jury). The consequence was that Jones was not aware during the introduction of evidence or at any time prior to the preparation of the jury instructions that he was at risk of conviction based on an intent to terrorize. Further, there was no attempt by the State to amend the charges consistent with the evidence, thus exposing him to the risk that the jury may have convicted him based on an uncharged element of a crime. Although we need not determine whether this error was so serious as to be reversible, we note that the prosecution and the court must exercise caution in conforming jury instructions to the charges.
Finally, Jones challenged the propriety of a jury instruction reading: “You must consider this case without favoritism or sympathy for or against either party. Neither sympathy nor prejudice should influence you.” Our case law instructs that such an instruction is objectionable because it tells the jury what not to do rather than what to do. It is recommended that the instruction not be given unless there are unusual circumstances, but giving such an instruction does not necessarily constitute error. State v. Sully, 219 Kan. 222, 226, 547 P.2d 344 (1976).
Reversed and remanded for reinitiating criminal proceedings against Jones, including a new preliminary hearing.
Davis, C.J., not participating.
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The opinion of the court was delivered by
Rosen, }.:
Israel Reyna appeals from convictions of four counts of aggravated indecent liberties with a child under K.S.A. 2006 Supp. 21-3504. He was sentenced to life with no possibility of parole for 25 years pursuant to K.S.A. 2006 Supp. 21-4643(a)(C) and (c), commonly known as Jessica’s Law. He raises a number of issues on appeal. This court’s jurisdiction is under K.S.A. 22-3601(b)(l).
In December 2006, Reyna lived in Salina with his ex-wife, Kelly. The two had divorced but later reconciled. Kelly operated a daycare center out of their home. One of the children that she routinely cared for was the 6-year-old daughter, B.B., of her brother, Scott B. B.B. had two brothers. Scott had been seeing a woman named Amber E., who had two children: a girl, 7-year-old A.E., and a boy.
December 22, 2006, was Scott’s 30th birthday and Amber had planned a surprise party for him at a Salina establishment called “The Scheme.” Kelly wanted to attend the party but had also agreed that Scott’s and Amber’s children could stay at her house. Amber dropped the children off around 5:30 p.m.
Kelly left for the party around 8 p.m. Reyna decided not to go because most of Kelly’s family would be there and his relations with them were strained. Kelly indicated that she did not intend to stay long. Kelly and Reyna’s sons, Matt, age 13, and Aaron, age 11, were left in charge of the younger children, with Reyna present as the responsible adult.
While Kelly was gone, Reyna sat in their upstairs bedroom listening to music, watching television, and drinking whiskey and Coke. Aaron mostly stayed in his room, also upstairs near his parents’ bedroom. Matt mostly stayed downstairs. The smaller children, A.E., B.B., and the three boys, apparently ran wild throughout the house, wrestling, getting into Kelly’s makeup, making tents in the upstairs hallway, watching television, and playing video games with Aaron. A.E. and B.B. also spent some time in Reyna and Kelly’s bedroom with Reyna. While Kelly was gone, a friend of hers called and talked to Reyna on the phone for 30 to 45 minutes.
As Kelly was leaving the party, Amber asked her if the children could spend the night at Kelly’s so that Amber could continue partying with Scott and friends. Kelly agreed to keep the children. A.E. and B.B. were excited to learn that they would spend the night and slept on the living room couch together.
A.E. returned to school following the holiday break on January 4th. She attended an after-school care program. That afternoon, the supervisor of the program called Amber to come to the school.
A.E. had told one of the program adults that Reyna had engaged in inappropriate sexual conduct with her and B.B. Amber called Scott. Scott and Kelly later brought B.B. from Kelly’s house to the house where Amber and Scott were living. On the way, Scott asked
B.B. if there was anything she needed to tell him. After first confessing that she got in trouble for hitting someone in daycare, she then said that Reyna had touched her “privates.”
Reyna was charged with one count of rape or, in the alternative, aggravated indecent liberties with each child. He was also charged with a second count of aggravated indecent liberties with each child. The complaint set out his year of birth, and he testified at trial that he was 37 years of age; however, the complaint did not allege as part of the charges of aggravated indecent liberties with a child that he was over the age of 18 at the time of the offenses, nor was the juiy instructed to determine his age.
The State questioned the prospective jurors during voir dire for over an hour. Shortly into the defendant’s voir dire, the trial judge called counsel to the bench and a discussion was had off the record. Defense counsel resumed questioning of the prospective jurors but later put on the record that she had felt limited by an admonition from the judge during the off-the-record discussion.
During trial, the State presented the testimony of a child sexual abuse therapist, Joni Alberts-Plumer. Prior to trial, the defense objected to the therapist testifying about her counseling of the victims, reasoning that any testimony that she had counseled them necessarily implied a finding that they had been sexually abused. The court agreed and limited the therapist’s testimony to general statements concerning the behavior of child sexual abuse victims. The defense registered a continuing objection to her testimony at trial.
Both A.E. and B.B. testified at trial. Although their testimony was a bit sketchy, as might be expected from a 7- and 6-year old, respectively, they both testified that Reyna had touched their vaginal areas and made them touch his genitals.
The jury returned guilty verdicts on two counts of aggravated indecent liberties against A.E. and on both the rape count and the alternative count of aggravated indecent liberties against B.B., in addition to the stand alone count of aggravated indecent liberties against B.B. The trial court later dismissed the rape conviction.
The defense filed a posttrial motion for a new trial and a motion for sentencing under the Kansas Sentencing Guidelines Act (KSGA), alleging that the failure to plead and prove Reyna’s age, an element of the off-grid offense, required sentencing him under the KSGA rather than treating the convictions as off-grid felonies under K.S.A. 2006 Supp. 21-4643. The defense also filed a motion for dispositional and durational departure from the sentence set out in K.S.A. 2006 Supp. 21-4643(d). The trial court denied the motions and sentenced Reyna to a controlling sentence of life with a hard 25 years. He timely appealed.
Sufficiency of the Evidence
Reyna first argues that there was insufficient evidence to support his convictions.
“When a defendant challenges the sufficiency of the evidence in a criminal case, the standard of review is whether after reviewing 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. Gant, 288 Kan. 76, 83, 201 P.3d 673 (2009) (citing State v. Gutierrez, 285 Kan. 332, 336, 172 P.3d 18 [2007]).
Reyna was convicted of four counts of aggravated indecent liberties with a child under K.S.A. 2006 Supp.21-3504(3)(A). In order to convict Reyna of Counts 1 and 3 of the complaint, the State had to prove, with respect to each of the victims, that:
1. Reyna fondled or touched the person of the victim in a lewd manner, with the intent to arouse or to satisfy the sexual desires of either the victim, Reyna or both;
2. The victim was under the age of 14; and
3. The act occurred on or about December 22, 2006, in Saline County, Kansas.
In order to convict Reyna of Counts 2 and 4 of the complaint, the State had to prove, in lieu of the first element above, that Reyna submitted to the lewd fondling or touching of his person by the children. The complaint alleged that each of these crimes was an off-grid felony, which would also require the State to show that Reyna was over the age of 18 at the time the crime was committed. That allegation, and the fact that it was not alleged or proven by the State at trial, will be addressed separately.
In their respective briefs, Reyna and the State go to great lengths to summarize the evidence presented and to demonstrate either the inconsistencies or the similarities. It is clear from the evidence presented that the stories of the two victims were not entirely consistent over the time between January 4,2007, when the allegations first came to light, and July 25, 2007, when they testified at trial. In the interim, they each repeated their allegations at least four times, and those allegations were in turn relayed through the testimony of witnesses at trial.
The most significant difference reported in the stories of the victims appears to be in that of A.E., whose after-school caregivers testified that A.E. originally reported that the two victims had been made to touch and kiss each other and had been given beer by Reyna. Other adults who interviewed A.E., including her mother, the investigating officer, and the sexual assault nurse examiner, testified that A.E. reported that she had been touched on her vagina by Reyna and then made to touch his genitals. The videotaped interview of A.E. by the investigating officer is consistent with this version.
R.R. appeared to be the less forthcoming of the two victims. Her father, A.E.’s mother, the investigating officer, and the nurse examiner all testified that she told them that Reyna had touched “her privates” and had made her touch him.
The victims’ stories differed in some details. For instance, A.E. testified that Reyna had touched her first and then B.B., whereas B.B. testified that she was touched first. There were some differences in their reports as to who had been where in the room at the time of. the touching. Despite these differences, however, the victims painted a substantially similar picture of what happened in Reyna’s bedroom, i.e., that he touched each of them on their va-ginas and that he made them touch his genitals. There was no real dispute about where or when the events took place, and none with regard to the victims’ ages.
Reyna points to a conversation that supposedly occurred in a car in which Kelly, Kelly’s mother, and B.B. were riding some time following the events at issue. Kelly testified that during the conversation, B.B. said that if she had to take a he detector test she would end up in jail. Kelly’s mother was called to testify about this conversation and denied ever hearing it take place. In addition, other testimony at trial indicated that Kelly was attempting to protect her ex-husband and shed doubt on the credibility of her testimony regarding B.B.’s alleged statement.
Reyna relies upon State v. Matlock, 233 Kan. 1, 660 P.2d 945 (1983), to support his argument that the uncorroborated testimony of the two victims was insufficient to support the convictions against him. In Matlock, while reaffirming the rule that the uncorroborated testimony of the prosecutrix in a rape case could support a conviction of rape, the court found that, under the facts of the case, no rational factfinder could find the testimony of the prose-cutrix credible and, therefore, it was insufficient to support the conviction. 233 Kan. at 3-6. The facts in Matlock are similar to this case in that the alleged attack took place in a home where others were present who testified that they saw and heard nothing, and the report of the crime by the victim was delayed. All similarities end there, however. In Matlock, not only was there absolutely no corroborating evidence for the victim’s statement, there was much evidence inconsistent with it.
In this case, Reyna admitted to the victims being in his bedroom during the evening. The testimony of the others present in the house did not foreclose the possibility of the crimes having oc curred as described by the victims. The testimony of each victim corroborated the other s on the key details. Most significantly, the testimony of Scott, B.B.’s father, that B.B. independently corroborated A.E.’s story on the day the allegations first came to light is strong evidence that the crimes occurred. Notably, Kelly was present when B.B. made her initial statement to her father and did not contradict his testimony at trial.
The victims in this case were ages 6 and 7 at the time of the crimes and trial. Their testimony at trial varied in some detail from that reported by other witnesses to whom they had earlier told of the events leading to the charges. However, in key details, the testimony of the victims corroborated each other’s from the time the allegations came to light through the trial. After reviewing all the evidence, viewed in the light most favorable to the prosecution, a rational factfinder could have found Reyna guilty beyond a reasonable doubt.
Defendant’s Age
Reyna makes two arguments based upon the failure of the State to allege or present evidence of his age at the time of the offenses. First, he argues that his age is an element of the offense of aggravated indecent liberties with a child under K.S.A. 2006 Supp. 21-4643 and the failure of the State to allege it in the complaint deprived the district court of jurisdiction to sentence him to life in prison. Next, he argues that the failure of the district court to instruct the jury that it must find Reyna was over the age of 18 at the time of the offenses violated his rights under the Sixth Amendment to the United States Constitution as defined in Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000).
Complaint
Reyna relies on Apprendi to argue that his age at the time of the offenses is the constitutional equivalent of an element of the enhanced version of aggravated indecent liberties with a child enacted by K.S.A. 2006 Supp. 21-4643 (commonly called Jessica’s Law) because it increases the penalty for the crime beyond the statutory maximum. He then maintains that under Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), the age element must be set out in the complaint. Because the complaint did not set out Reyna’s age at the time of the offenses, he argues that the district court did not have jurisdiction to sentence him under K.S.A. 2006 Supp. 21-4643. The State argues that Reyna’s age was not an element of the offenses, but rather like a prior conviction, it was merely a sentencing factor that did not need to be set out in the complaint at all. Both arguments miss the mark.
The question of whether a complaint or information is sufficient to give the district court jurisdiction is a question of law over which this court has unlimited review. State v. Scott, 286 Kan. 54, 62, 183 P.3d 801 (2008). Before addressing die complaint, however, we turn to Reyna’s premise that K.S.A. 2006 Supp. 21-4643 sets out a crime.
Reyna was convicted under K.S.A. 2006 Supp. 21-3504, which provides:
“(a) Aggravated indecent liberties with a child is:
“(3) engaging in any of the following acts with a child who is under 14 years of age:
(A) Any lewd fondling or touching of the person of either the child or the offender, done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the offender, or both;
“(c) Except as provided further, aggravated indecent liberties with a child as described in subsections (a)(1) and (a)(3) is a severity level 3, person felony. Aggravated indecent liberties with a child as described in subsection (a)(2) is a severity level 4, person felony. When the offender is 18 years of age or older, aggravated indecent liberties loith a child as described in subsection (a)(3) is an off-grid person felony.” (Emphasis added.)
Thus, it is K.S.A. 2006 Supp. 21-3504(c) which sets out that aggravated indecent liberties with a child is an off-grid crime when the offender is 18 years of age or older. K.S.A. 2006 Supp. 21-4706(d) provides the sentences for off-grid crimes and states, in relevant part:
“(d) As identified in K.S.A. . . . 21-3[5]04, . . . and amendments thereto, if the offender is 18 years of age or older and the victim is under 14 years of age, such violations are off-grid crimes for the purposes of sentencing. Except as provided in K.S.A. 2006 Supp. 21-4642, and amendments thereto, the sentence shall be imprisonment for life pursuant to K.S.A. 2006 Supp. 21-4643, and amendments thereto.”
K.S.A. 2006 Supp. 21-4643, under which Reyna was sentenced, provides:
“(a) (1) Except as provided in subsection (b) or (d), a defendant who is 18 years of age or older and is convicted of the following crimes committed on or after July 1, 2006, shall be sentenced to a term of imprisonment for life with a mandatory minimum term of imprisonment of not less than 25 years unless tire court determines that the defendant should be sentenced as determined in paragraph (2):
(C) aggravated indecent liberties with a child, as defined in subsection (a)(3) of K.S.A. 21-3504, and amendments thereto.”
Several of our recent cases have dealt with this statutory scheme. See, e.g., State v. Gonzales, 289 Kan. 351, Syl. ¶¶ 10-11, 212 P.3d 215 (2009); State v. Bello, 289 Kan. 191, Syl. ¶¶ 3-4, 211 P.3d 139 (2009). In those cases, we have rejected the notion that K.S.A. 2006 Supp. 21-4643 is a crime-defining statute, pointing out that K.S.A. 2006 Supp. 21-3504 sets out two separate sentencing levels of tire offense, the applicable sentencing level turning on whether the defendant is age 18 or older at the time of the offense.
Reyna is correct, however, in arguing that our prior opinions have held, based on Apprendi, that the defendant’s age at the time of the offense is an element of the crime if the State seeks to convict the defendant of the more serious, off-grid enhanced offense. See Gonzales, 289 Kan. at 366-70; Bello, 289 Kan. at 195-98. The State’s argument that the age issue is merely a sentencing factor that, like a prior offense, may be determined by the judge at sentencing ignores the full impact of Apprendi.
Next, we address Reyna’s contention that this court is required by Jones, 526 U.S. 227, to find that the complaint in this case was insufficient to charge the enhanced version of aggravated indecent liberties with a child that is subject to off-grid sentencing. A similar argument was made and rejected in Scott, 286 Kan. at 101-02:
“Scott argues that under Jones v. United States, 526 U.S. 227, 143 L. Ed. 2d 311, 119 S. Ct. 1215 (1999), and Apprendi v. New Jersey, 530 U.S. 466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000), aggravating factors, as elements of the offense, must be set forth in the charging document.
“Scott’s argument is not persuasive. Jones and Apprendi both stand for the proposition that, under the grand jury provision of the Fifth Amendment and the notice and jury trial provision of the Sixth Amendment, any fact other than a prior conviction that increases the maximum penalty for a crime must be charged in an indictment, submitted to a jury, and proven beyond a reasonable doubt. However, Scott fails to recognize that the requirement that such facts be charged in an indictment only applies in federal cases, as the Fifth Amendment’s grand jury provision does not apply to the states through the Fourteenth Amendment. See Ring v. Arizona, 536 U.S. at 597 n.4; Apprendi, 530 U.S. at 477 n.3; Hurtado v. California, 110 U.S. 516, 538, 28 L. Ed. 232, 4 S. Ct. 111 (1884).”
Scott also sets out part of this court’s standard for evaluating the question of whether an information is sufficient to give the district court jurisdiction. After stating that the issue is a question of law, Scott provides:
“In analyzing whether an information is sufficient, this court applies one of two tests, depending on when the objection is raised. State v. Hooker, 271 Kan. 52, 61, 21 P.3d 964 (2001); see State v. Hall, 246 Kan. 728, 764-65, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003). When a defendant files a motion for arrest of judgment based on a defective information, the pre-Hall standard applies. Hall, 246 Kan. at 764. Under this standard, an information which omits one or more of the essential elements of the crime it attempts to charge is jurisdictionally and fatally defective, and a conviction based on such an information must be reversed. State v. Sanford, 250 Kan. 592, 600-01, 830 P.2d 14 (1992). However, even under the pre-Hall standard, an information is sufficient if it substantially follows the language of the statute or charges the offense in equivalent words or others of the same import so long as the defendant is fully informed of the particular offense charged and the court is able to determine under what statute the charge is founded. State v. Micheaux, 242 Kan. 192, 197, 747 P.2d 784 (1987).” 286 Kan. at 62-63.
In this case, Reyna failed to file a motion for arrest of judgment. He raises the argument based on a defect in the complaint for the first time on appeal. Consequently, the applicable test for determining whether the complaint was sufficient is the test set out in State v. Hall, 246 Kan. 728, 765, 793 P.2d 737 (1990), overruled in part on other grounds Ferguson v. State, 276 Kan. 428, 78 P.3d 40 (2003):
“[W]e shall look to whether the claimed defect in the information has: (a) prejudiced the defendant in the preparation of his or her defense; (b) impaired in any way defendant’s ability to plead the conviction in any subsequent prosecution; or (c) limited in any way defendant’s substantial rights to a fair trial under the guarantees of the Sixth Amendment to the United States Constitution and the Kansas Constitution Bill of Rights, §10. If a defendant is able to establish a claim under either (a), (b), or (c), the defective information claim, raised for the first time on appeal, will be allowed.”
This court has applied this test to substantially the same set of procedural facts in two prior cases: Gonzales, 289 Kan. 351, and State v. Gracey, 288 Kan. 252, 200 P.3d 1275 (2009). As in both Gonzales and Gracey, the charging document in this case set out Reyna’s year of birth in the caption and stated at the bottom of the page that the charges were for off-grid person felonies. Like Gracey and Gonzales, Reyna has not asserted that the preparation of his defense was impeded or that his right to a fair trial was impaired by the complaint. Nor has he shown that the complaint impaired his ability to plead the convictions in a subsequent prosecution. As in Gonzales and Gracey, we find the failure to allege Reyna’s age in the complaint is not grounds to invalidate his convictions of the off-grid offense.
Jury Instructions
Reyna relies on Apprendi to argue that the omission of the age element from the jury instructions violates his right to trial by jury guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and § 10 of the Kansas Constitution Bill of Rights. Apprendi provides that any fact, other than the fact of a prior conviction, that enhances a convicted defendant’s sentence beyond the statutoiy maximum for the crime must be found by a jury, not by a judge.
In Bello, this court found that “[a] defendant’s right to a jury trial is violated where the judge makes the sentence enhancement factfinding, rather than the jury.” 289 Kan. at 199 (citing Cunningham v. California, 549 U.S. 270, 288-89, 166 L. Ed. 2d 856, 127 S. Ct. 856 [2007]). After noting that the enhanced version of the crime is set out initially in K.S.A. 21-3504(c), Bello states that Apprendi clarifies “that merely because a state legislature places a sentence enhancing factor within the sentencing provisions of the criminal code does not mean that the factor is not an essential element of the offense.” 289 Kan. at 199 (citing Apprendi, 530 U.S. at 495). Having failed to address that element in the trial of Bello, the statutory maximum sentences for the crimes of which he was convicted were to be found in the KSGA. Bello, 289 Kan. at 199-200. We reached the same result in State v. Morningstar, 289 Kan. 488, 494-95, 213 P.3d 1045 (2009), and Gonzales, 289 Kan. at 370-71. The failure to allege and to instruct on the defendant’s age was error. Thus, this argument must be resolved in favor of Reyna unless some difference distinguishes this case from those.
This case does differ from Morningstar, Gonzales, and Bello in one significant way. In those cases, there was no evidence before the jury on which it could have based a finding of the defendant’s age had it been correctly instructed. That is not the case here. In this case, in response to a question from his own counsel, Reyna stated his age. Thus there was evidence in front of the jury on which it could have based a finding of his age at the time of the offenses.
In State v. Daniels, 278 Kan. 53, 57, 91 P.3d 1147, cert. denied 543 U.S. 982 (2004), we reviewed a case in which the district court had inadvertently omitted the element of bodily harm from the instructions to the juiy on a count of aggravated robbery. After reviewing prior decisions of this court finding erroneous jury instructions harmless, we considered the United States Supreme Court decision in Neder v. United States, 527 U.S. 1, 144 L. Ed. 2d 35, 119 S. Ct. 1827 (1999). Neder was a pre-Apprendi case in which the trial court had taken the issue of materiality from the jury in a trial involving tax fraud. The Supreme Court concluded that refusing to instruct on the element of materiality on the fraud charges was erroneous. 527 U.S. at 8. Nonetheless, the Court held the error was not of the type that it had previously found to be “structural error,” the type of fundamental constitutional error which is so intrinsically harmful as to require automatic reversal. 527 U.S. at 8, 9-16. Thus, the Daniels court concluded:
“Under the Neder test, ‘where a reviewing court concludes beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the juiy verdict would have been the same absent the error, the erroneous instruction is properly found to be harmless.’ 527 U.S. at 17. Stated another way, the reviewing court ‘asks whether the record contains evidence that could rationally lead to a contraiy finding with respect to the omitted element.’ 527 U.S. at 19. If the answer to that question is ‘no,’ the error may be held harmless.” Daniels, 278 Kan. at 62.
Daniels went on to consider an argument identical to the one put forth here by Reyna; that despite the rule in Neder, under Apprendi, the omission of the element in a case where that element makes the difference between severity levels of a crime violates Reyna’s constitutional right to trial by jury. The Daniels court noted that this court had never applied Apprendi in a case involving erroneous jury instructions and held:
“[E]ven if there was Apprendi-type error, which we decline to decide, our analysis would still be that the evidence of bodily harm was essentially uncontroverted. Accordingly, we reject Daniels’ arguments that the omission of tire bodily harm element requires reversal.” 278 Kan. at 65.
Since Daniels, the United States Supreme Court has decided a case directly addressing whether an Apprendi-type error, the failure to submit a sentence-enhancing factor to the jury, can ever be harmless error. In Washington v. Recuenco, 548 U.S. 212, 165 L. Ed. 2d 466, 126 S. Ct. 2546 (2006), die Court reviewed a case in which the Washington Supreme Court had based its holding on the premise that an Apprendi-type error could never be harmless. Recuenco was charged with assault with a deadly weapon, specifically a handgun. The special verdict form returned by the jury found a deadly weapon involved, but it failed to make the specific finding of a handgun. The trial court imposed a 3-year sentence enhancement for use of a gun instead of the 1-year sentence enhancement that applied to use of a deadly weapon. The Washington Court of Appeals affirmed, but the Washington Supreme Court, relying on Apprendi and Blakely v. Washington, 542 U.S. 296, 159 L. Ed. 2d 403, 124 S. Ct. 2531 (2004), reversed. Blakely clarified that “the ‘statutoiy maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. [Citations omitted.]” 542 U.S. at 303. Considering the Apprendi argument, the Court said:
“The State and the United States urge that this case is indistinguishable from Neder. We agree. Our decision in Apprendi makes clear that ‘[a]ny possible distinction between an “element” of a felony offense and a “sentencing factor” was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation’s founding.’ 530 U.S., at 478 (footnote omitted). Accordingly, we have treated sentencing factors, like elements, as facts that have to be tried to the jury and proved beyond a reasonable doubt. Id., at 483-484. The only difference between this case and Neder is that in Neder, the prosecution failed to prove the element of materiality to the jury beyond a reasonable doubt, while here the prosecution failed to prove the sentencing factor of ‘armed with a firearm’ to the jury beyond a reasonable doubt. Assigning this distinction constitutional significance cannot be reconciled with our recognition in Apprendi that elements and sentencing factors must be treated the same for Sixth Amendment purposes. Recuenco, 548 U.S. at 220.
The Court went on to conclude that “[fjailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error.” 548 U.S. at 222.
Thus, Daniels stands for the proposition that this court will apply the harmless error analysis to the omission of an element from the instructions to the jury when a review of the evidence leads to the conclusion beyond a reasonable doubt that the omitted element was uncontested and supported by overwhelming evidence, such that the jury verdict would have been the same absent the error. And Recuenco stands for the proposition that characterizing the omission as an Apprendi-type error, i.e., judicial factfinding of the omitted element when that element enhances the maximum applicable sentence, does not change that analysis.
The dissent argues that the instructions in this case were not erroneous but that argument rests on an assumption that Reyna was charged with the severity level 3 crime, and we have just held he was not. While the complaint failed to include the off-grid element in the individual counts charging the crimes, the complaint overall adequately charged him with the off-grid offenses. Therefore, the instructions were erroneous in that they omitted an element of those offenses, specifically, the defendant’s age at the time of the offenses. Moreover, it should be emphasized that Reyna, in his brief to this court, frames the issue in terms of erroneous instructions.
Our review of the evidence in this case reveals that Reyna testified he was 37 years of age at tire time of the trial. There was no conflicting evidence or, indeed, any other evidence at all concerning his age. Asking whether the record contains evidence that could rationally lead to a contrary finding with respect to the element that the defendant was over the age of 18 at the time of the crime, we conclude that it does not and, further, that the omission of the element from tire jury instructions was, therefore, harmless error. Moreover, for the same reasons, we are convinced that the Ap-prendi-type error that occurred when the trial court made the age determination and imposed sentence on Reyna under K.S.A. 2006 Supp. 21-4643, was harmless. We affirm Reyna’s sentence.
Expert Testimony
Reyna maintains that the trial court erred in admitting the expert testimony of Joni Alberts-Plumer concerning tire behavioral characteristics of children who have been sexually abused. K.S.A. 60-456(b) governs the admission of expert testimony:
“If the witness is testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to such opinions as the judge finds are (1) based on facts or data perceived by or personally known or made known to the witness at the hearing and (2) within the scope of the special knowledge, skill, experience or training possessed by the witness.”
“Generally, the admission of expert testimony lies within the sound discretion of the trial court, and its decision will not be overturned absent an abuse of such discretion. [Citations omitted.]” State v. Johnson, 286 Kan. 824, 831, 190 P.3d 207 (2008).
Alberts-Plumer is a licensed clinical marriage and family therapist, who specializes in children who are sexually abused. Reyna initially objected to Alberts-Plumer testifying that she had counseled A.E. and B.B. after the alleged assaults on the grounds that any evidence she had counseled them was tantamount to introducing her opinion that they had in fact been sexually abused. The trial court agreed such testimony would be inadmissible but indi cated she could testify generally that “children who have been abused don’t always tell a responsible adult that that has happened immediately when it happens and that that’s not unusual.” Even so, the judge noted that he was “not totally convinced that that point is not so obvious to the ordinary person in this day and age that it really requires expert testimony.”
Alberts-Plumer testified that she had treated many sexually abused children, that she had extensive training, and that she was familiar with the research in the area of sexual abuse and children. She also testified that she was trained in the “Finding Words” method of forensic interviewing of sexually abused children and she had trained with one of the nation’s leading experts in the field of sexual abuse and children. On the basis of this testimony, she was qualified as an expert and allowed to testify that a large percentage of children who have been sexually abused do not report that fact immediately and that when they do report they are not always focused on the same details that would be important to an adult investigating the abuse. She further testified the details of the sexual abuse may come out over a period of time rather than all at once. Reyna preserved the issue by raising an objection to the testimony at trial.
On cross-examination, counsel for Reyna was able to explore the role of susceptibility to suggestion in the reports of child sexual abuse victims. She was also able to elicit testimony that improper questioning could lead to distorted or even false reports.
Reyna complains that the testimony did not meet the prerequisites required for its admission into evidence because there was no showing of necessity or that the subject matter was not within the knowledge of an average juror. He points to the trial judge’s own statements casting doubt on the need for the testimony and the fact that many of the jurors had worked directly with children as grounds for finding that the statute was erroneously applied. He relies on a fine of cases holding that the testimony of an expert must be outside the common knowledge of a juror to be admissible. In particular, he quotes from State v. Coopenoood, 282 Kan. 572, 147 P.3d 125 (2006), where this court noted that it had stated the standard for admission of expert testimony in various ways, including as strongly as:
“ ‘Expert conclusions or opinions are inadmissible where the normal experiences and qualifications of lay persons serving as jurors permit them to draw proper conclusions from given facts and circumstances.’ (Emphasis added.) Pullen v. West, 278 Kan. 183, 207, 92 P.3d 584 (2004); State v. McIntosh, 274 Kan. 939, 956, 58 P.3d 716 (2002); see [citations omitted]; Lollis v. Superior Sales Co., 224 Kan. 251, 580 P.2d 423 (1978).” 282 Kan. at 578-79.
Despite “facially different” methods of stating the standard, Coo-perwood concluded, quoting Lollis: “ It is obvious that these observations simply state, in a different way, that the basis for the admission of expert testimony is necessity, arising out of the particular circumstances of the case.’ 224 Kan. at 261.” 282 Kan. at 579.
Reyna’s theory of the case was to attack the credibility of the complaining witnesses, implying that the events reported could not have occurred as reported, that the victims were subjected to poor interviewing techniques which suggested the answers the adults were looking for, and that the delay and inconsistency in their stories indicated that the allegations were not true. Because of that strategy, Reyna complains that the testimony of Alberts-Plumer amounted to an expert opinion vouching for the credibility of the victims and, therefore, was highly prejudicial.
In State v. McIntosh, 274 Kan. 939, 958-60, 58 P.3d 716 (2002), this court held that qualified expert witness testimony on common patterns of behavior of sexually abused children was admissible to establish that the victim in the case exhibited behavior consistent with sexually abused children. McIntosh, in turn, relied heavily upon State v. Reser, 244 Kan. 306, 310-15, 767 P.2d 1277 (1989), in which this court undertook an exhaustive review of cases from both Kansas and other jurisdictions that had considered expert testimony on the behavioral characteristics of child sexual abuse victims.
McIntosh and Reser both concluded that testimony from a qualified expert concerning the characteristic behaviors of child victims of sexual abuse, including such things as failure to report the abuse immediately, was proper and helpful to the jury and could be in troduced to corroborate victim testimony. They also concluded that it was permissible for the expert to testify that, having examined the victim, the expert concluded that the victim has symptoms consistent with a child who had been sexually abused. McIntosh, 274 Kan. at 956; Reser, 244 Kan. at 315.
In this case, Alberts-Plumer did not present evidence that she had examined the victims or that they had symptoms consistent with sexual abuse, both of which, contrary to the trial court’s ruling, would have been permissible. Her testimony was limited to generalizations, subject to cross-examination, concerning typical behaviors of sexual abuse victims.
The Court of Appeals recently considered a similar set of facts in State v. Gaona, 41 Kan. App. 2d 1064, 208 P.3d 308 (2009). In that case, the State sought to introduce the testimony of Kelly Robbins. Although Robbins was “not a psychiatrist, psychologist, social worker, mental health technician, or family therapist, she had specific training in child interview techniques and a wealth of experience in the investigation of child sexual abuse.” 41 Kan. App.2d at 1067. Her qualifications were more consistent with her background as a special agent for the Kansas Bureau of Investigation than with a mental health care provider or therapist. The court specifically noted that “Robbins was not asked to provide a medical diagnosis or to relate it to this specific victim, but rather was confined to a general discussion of common behavioral traits of sexually abused children.” 41 Kan. App. 2d at 1068. The court found it was not an abuse of discretion to allow Robbins to testify on such a limited basis. 41 Kan. App. 2d 1068-69.
K.S.A. 60-456(c) provides with regard to expert testimony that “[u]nless the judge excludes the testimony he or she shall be deemed to have made the finding requisite to its admission.” Despite the trial judge’s questioning of the need for admission of expert testimony in this case, case law supports the conclusion that the testimony of general behavioral traits of sexual abuse victims is helpful to the jury and, therefore, admissible. Moreover, Reyna was able to take advantage of cross-examination of the witness to bolster his own theory of the case. Under these circumstances, it is difficult to conclude that the trial court abused its discretion in admitting the testimony, and we find it did not.
Voir Dire
Reyna contends that the trial judge unreasonably limited his voir dire of the jury panel. K.S.A. 22-3408(3) governs the conduct of voir dire and provides:
“The prosecuting attorney and the defendant or his attorney shall conduct the examination of prospective jurors. The court may conduct an additional examination. The court may limit the examination by the defendant, his attorney or the prosecuting attorney if the court believes such examination to be harassment, is causing unnecessary delay or serves no useful purpose.”
With respect to the standard of review on appeal, we have said:
“The purpose of voir dire examination is to enable the parties to select jurors who are competent and without bias, prejudice, or partiality.’ State v. Manning, 270 Kan. 674, 691, 19 P.3d 84 (2001). Generally die nature and scope of die voir dire examination is entrusted to die sound discretion of the trial court. Manning, 270 Kan. at 691. However, ‘ “[i]n determining whether the trial court has taken sufficient measures to assure that the accused is tried by an impartial jury free from outside influences, appellate tribunals have the duty to make an independent evaluation of the circumstances.” ’ State v. Aikins, 261 Kan. 346, 366, 932 P.2d 408 (1997).” State v. Hayden, 281 Kan. 112, 128-29, 130 P.3d 24 (2006).
In order to consider Reyna’s argument, it is necessary to piece together several segments of the trial. The State questioned the jury panel at length before passing the panel for cause. Counsel for Reyna began her voir dire by saying, “[T]he good news is the State has asked a lot of questions that I would have so chances are my portion of the voir dire, which this process is called, won’t take quite so long.” Reyna’s counsel then immediately began asking questions of individual jurors. She had questioned three jurors individually when the court called counsel to the bench and the off-the-record discussion was held. Following the discussion, counsel resumed questioning jurors individually. In all, after the discussion at the bench, counsel questioned another 20 jurors individually. She asked only five questions generally of the panel, and one of those resulted in individual discussions with three additional jurors before she passed the panel for cause.
Peremptory strikes were conducted in chambers. Following that process, Reyna’s counsel stated:
“Judge, I would just ask that when the Court calls counsel up to the bench, that the Court tries not to scowl or make any kind of — and I’m stating this is because what happened [sic] I got called up to the bench in voir dire and I will tell the Court that I cut my voir dire back because I felt like if I was admonished again it was going to have a negative impact on Mr. Reyna, resulting in not being able to ask many questions of jurors that said nothing.”
The trial judge responded, “Well, that’s noted for the record. It’s without any basis.”
Counsel for Reyna filed a motion for new trial in which she alleged that the State’s voir dire consumed close to 1 and 1/2 hours but the defense was not given an opportunity to sufficiently voir dire the panel. She alleged that in the discussion at the bench, the trial court “told defense counsel that she would not be permitted to do an individual voir dire, that the questions that were being asked were not germane and to move on as there wasn’t time for this.” At argument on the motion, counsel again stated that the court had admonished her that her voir dire questions were not germane, that it had limited her opportunity to question the potential jurors and, in particular, she had been limited from delving into their education and the degrees some of them were seeking, which in turn hampered her ability to select a jury that did not have preconceived notions.
In ruling on the motion, the district judge characterized the off-the-record conversation this way:
“The selection of the jury. In all due respect I think I made one comment to counsel out of hearing of the jury that I questioned whether it was germane to ask each of the very young witnesses or potential jurors who said they were in school or going to school what their major in college was or was going to be. Anybody that’s been a parent and had children go through college knows that statistics that the major change [sic] an average of four to five times from when they start out and what they end up. That was the only comment I recall making and I believe that defense counsel had certainly adequate opportunity to — to question and voir dire. And once again, all due respect, Ms. McKenna, you’ve never been timid or reluctant to challenge my ruling in various trials by — by pushing those limits and asking your questions subject to further admonition. So I believe that the jury was fairly questioned by both sides and was fairly selected in this case.”
The motion for new trial was denied.
Judicial discretion is abused when judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only when no reasonable person would take the view adopted by the trial court. 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. State v. Ransom, 289 Kan. 373, 389, 212 P.3d 203 (2009); State v. Hayes, 258 Kan. 629, 631-32, 908 P.2d 597 (1995).
Putting together the various segments of the trial at which the voir dire was conducted and discussed, we cannot conclude that Reyna’s counsel was limited in her questioning of the jury panel in any meaningful way. Following the discussion at the bench, counsel proceeded to question 20 panel members on an individual basis. Her questioning resulted in the removal of one juror for cause. While she did leave the topic of college majors following the discussion at the bench, the trial court’s assessment of that topic hardly seems an abuse of discretion. We pause to note that it was Reyna’s burden to produce an adequate record on this issue and a request to put the conversation at the bench on the record would have assisted in our review. See State v. Seward, 289 Kan. 715, 720-21, 217 P.3d 443 (2009). That said, we also note that it is not a common practice for a trial judge to interrupt sua sponte voir dire, and our review of the record indicates no reason it should have been interrupted here. However, our independent evaluation of the circumstances does not indicate prejudice to Reyna.
Constitutionality of Sentence
Reyna next argues that the hard 25 life sentence imposed upon him under K.S.A. 2006 Supp. 21-4643(a)(C) and (c) (Jessica’s Law) violates both the Eighth Amendment to the United States Constitution and § 9 of the Kansas Constitution Bill of Rights in that it is cruel and unusual and disproportionate to the offense. He concedes, however, that he failed to raise the constitutional issue in any form before the trial court.
This court has recently considered the same argument in several cases all of which came to us in substantially the same procedural posture. See State v. Oehlert, 290 Kan. 189, 224 P.3d 561 (2010); State v. Robison, 290 Kan. 51, 220 P.3d 500 (2010); State v. Mon-dragon, 289 Kan. 1158, 220 P.3d 369 (2009); State v. Spotts, 288 Kan. 650, 206 P.3d 510 (2009); State v. Thomas, 288 Kan. 157, 199 P.3d 1265 (2009); State v. Ortega-Cadelan, 287 Kan. 157, 194 P.3d 1195 (2008). Cf. Seward, 289 Kan. 715. Little would be gained by repeating what has been repeatedly set out in those cases. This constitutional argument is both a factual and a legal issue, and Reyna’s failure to raise the issue below and create a factual record sufficient for this court’s review precludes our review. Reyna’s argument that his case was tried to a jury, unlike the other cases in which the defendant entered a plea, and so fact finding has been completed by the juiy, does not address the need for particularized findings of fact addressed to the considerations set out in State v. Freeman, 223 Kan. 362, Syl. ¶¶ 1-2, 574 P.2d 950 (1978), on which the constitutional argument turns. The issue is not properly before us.
Departure Motions
Reyna filed a motion and an amended motion for dispositional and durational departure. The motions sought departure from both the off-grid sentences and the guidelines sentences applicable to his convictions. The motions were considered and denied by the district court. He alleges there were substantial and compelling reasons to grant the motions, see K.S.A. 2006 Supp. 21-4643(d), and, therefore, the trial court erred in imposing the concurrent hard 25 life sentences.
“Our standard of review on the denial of a sentencing departure is abuse of discretion. Judicial discretion is abused ‘ “ ‘when no reasonable person would take the view adopted by the district judge.’ ” ’ Thomas, 288 Kan. at 164 (quoting Ortega-Cadelan, 287 Kan. at 165).” Seward, 289 Kan. at 721.
Reyna argues that the degree of harm to his victims was less than in the typical sex offense case, that a sex offender evaluation found no evidence of pedophilia, and that the evaluator did not consider him to be a threat to the community if he was properly supervised, combined with his lack of criminal history, all lead to the conclusion that the trial court should have granted his departure motions. The trial judge in considering the motions noted the strong legislative intent behind the sentencing statute, as well as the difficulty of quantifying the “typical” harm in a case such as this. He also noted drat Reyna was not eligible for sex offender treatment as he maintained his innocence of the offense. On the other hand, the evaluations did indicate Reyna has an alcohol problem. The judge’s stated reasons for denying any departure were extensive and indicated that he thoroughly considered the factors argued. In Seward, we said:
“This court has defined ‘substantial’ as ‘something that is real, not imagined; something with substance and not ephemeral,’ while the term ‘ “compelling” implies that the court is forced, by the facts of a case, to leave the status quo or go beyond what is ordinary.’ State v. McKay, 271 Kan. 725, 728, 26 P.3d 58 (2001).
“In ruling on Seward’s departure motion, the district judge orally reviewed the mitigating and aggravating factors advanced by Seward and the State, engaging in an appropriate weighing of tire competing considerations. The defense has demonstrated no abuse of discretion in the district judge’s denial of its departure motion.” 289 Kan. at 722.
Such is the case here. Reyna’s convictions and the concurrent hard 25 life sentences imposed are affirmed.
Affirmed.
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On December 5,2008, this court suspended the petitioner, Boyd R. McPherson, from the practice of law in Kansas for a period of 6 months. See In re McPherson, 287 Kan. 434, 196 P.3d 921 (2008). Before reinstatement, the petitioner was required to pay the costs of the disciplinary action, comply with Supreme Court Rule 218 (2009 Kan. Ct. R. Annot. 361), and undergo a reinstatement hearing pursuant to Supreme Court Rule 219 (2009 Kan. Ct. R. Annot. 376).
On June 9, 2009, McPherson filed a petition with this court for reinstatement to the practice of law in Kansas. The petition was referred to the Disciplinary Administrator for consideration by the Kansas Board for Discipline of Attorneys, pursuant to Supreme Court Rule 219. On November 24,2009, a hearing was held before a hearing panel of the Kansas Board for Discipline of Attorneys to consider McPherson’s request for reinstatement.
On December 25, 2009, the panel filed its report setting out the circumstances leading to McPherson’s suspension, a summary of the evidence presented, and its findings and recommendations. The panel unanimously recommended that McPherson’s petition for reinstatement to the practice of law in Kansas be granted.
The court, after carefully considering the record, accepts the findings and recommendations of the panel. The petitioner is hereby reinstated to the practice of law in Kansas.
It Is Therefore Ordered that Boyd R. McPherson be reinstated to the practice of law in the state of Kansas, and the Clerk of the Appellate Courts is directed to enter McPherson’s name upon the roster of attorneys engaged in the practice of law in Kansas.
Effective this 24th day of March, 2010.
It Is Further Ordered that this order of reinstatement for Boyd R. McPherson shall be published in the official Kansas reports. | [
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The opinion of the court was delivered by
Biles, J.:
Roiy M. Foster raises numerous challenges to his convictions for first-degree murder, rape, aggravated kidnapping, aggravated arson, aggravated criminal sodomy, aggravated batteiy, and criminal threat. He received a hard 50 off-grid life sentence for the first-degree murder conviction and additional sentences with a controlling term of 372 months’ imprisonment for the other convictions. This resulted in an 81-year (972 months) total sentence. We have jurisdiction under K.S.A. 22-3601(b)(l) (direct appeal for conviction of an off-grid crime). We affirm the convictions and the sentences.
Foster raises 11 issues on appeal: (1) whether the district court was required to reconsider Foster’s competency during trial; (2) whether the district court failed to properly address a potential conflict between Foster and his trial attorney; (3) whether a lesser included offense instruction for voluntary manslaughter was warranted; (4) whether there was a unanimous jury verdict on tire criminal threat and rape convictions; (5) whether a mistrial was required because a gallery member disrupted the proceedings; (6) whether specific photographs were properly admitted; (7) whether the prosecutor committed misconduct during opening statements and closing arguments; (8) whether there was cumulative error; (9) the constitutionality of the hard 50 sentencing scheme; (10) whether Foster’s criminal history score needed to be proven to the jury beyond a reasonable doubt; and (11) whether the aggravating sentencing factors needed to be proven to the jury beyond a reasonable doubt.
We previously have rejected the latter three issues in earlier decisions and will not revisit them again in this appeal. It is sufficient to point out this court held the hard 50 sentencing scheme under K.S.A. 21-4635 constitutional in State v. Engelhardt, 280 Kan. 113, 142-43, 119 P.3d 1148 (2005); see State v. Ellmaker, 289 Kan. 1132, Syl. ¶ 11, 221 P.3d 1105 (2009). We upheld a trial court’s use of prior convictions to enhance guidelines sentencing without first proving the criminal history to a jury beyond a reasonable doubt in State v. Ivory, 273 Kan. 44, 46-48, 41 P.3d 781 (2002). And we determined the provisions in K.S.A. 21-4704 concerning aggravating sentencing factors did not violate the Sixth Amendment to the United States Constitution in State v. Johnson, 286 Kan. 824, 851, 190 P.3d 207 (2008). We decide the remaining eight issues in this opinion.
Factual and Procedural Background
On April 25, 2006, Foster and his infant son flew from Florida to Kansas City International Airport to deliver the child to his mother, B.H., in Iola, Kansas. Foster rented a car near the airport to make tire drive and stopped along the way to purchase boric acid, also known as roach powder.
Foster brought the boy to B.H.’s duplex apartment in Iola about 4:30 p.m., leaving the boy with his mother and R.R., her friend and roommate. Soon after Foster left, the boy’s maternal grandmother came and took the infant to her house. B.H. and R.R. spent the evening with friends.
Shortly after B.H. and R.R. returned to die apartment at around 3:45 a.m., they heard someone turning the front doors doorknob. Foster entered, looking and acting upset. He searched the apartment for his son. After determining die boy was not there, Foster took the women’s cell phones. Foster then pulled a knife and told both women to go to die bedroom. He threatened to kill them if they fought him.
Once in the bedroom, Foster again threatened to kill them if they did not remove their clothes. Foster ordered the women to perform oral sex on one another and him. During the forced oral sex, R.R. saw Foster open a condom. She asked him not to do that, but he told her to shut up. He inserted his penis into R.R.’s vagina. At one point, Foster left and walked into the hallway. R.R. tried to lock the bedroom door, but even with B.H.’s assistance, R.R. was not able to prevent Foster from forcing his way back into the room.
Shortly thereafter, Foster allowed R.R. to dress, but not B.H. He mixed the boric acid he had purchased earlier with water and told B.H. to drink it. She refused, so he threw it on her, burning her arm. Foster then forced R.R. into the bedroom closet. He again threatened to kill them both if R.R. said anything or tried to leave. While in the closet R.R. heard a struggle and kicking followed by silence. Through the closet door, R.R. saw B.H. wrapped in a blanket on the bed with Foster standing over her.
After a few more minutes, Foster took R.R. from the closet. When she came out, she saw a knife in B.H.’s throat. R.R. testified Foster threatened that if she told anyone about the incident both she and her family would look like that (referring to B.H. lying on the bed), and not even the witness protection program could help them. Foster then tried to stab R.R. with another knife, but she blocked him, escaping serious injury despite being cut. She promised Foster she would not talk about the incident. He told her to go to the living room.
Once there, he ordered her to again remove her clothes and he down on the couch. R.R. pleaded with him not to rape her again. She promised to run away and not say a word. She testified she was so scared she took her clothes off and lay down. Foster again inserted his penis into her vagina. After a few minutes, he told her to turn around and bend over. Foster inserted his penis into her anus. Afterwards, R.R. got dressed. Foster set fire to a washcloth and forced R.R. back to the bedroom. He poured alcohol onto B.H.’s corpse and threw the burning washcloth on B.H.’s body, starting a fire.
Foster allowed R.R. to leave. She drove to her mother’s home, showered, and then told her mother Foster killed B.H. The mother called police and reported a possible murder. The responding officers evacuated two people from the duplex’s second apartment. Upon entering B.H’s apartment, officers found her partially burned body on the bed. Investigators determined the fire originated on or near B.H.’s body and concluded the fire was intentionally set.
Foster was arrested near the airport later in the morning of April 26. Police recovered evidence from the rental vehicle, a nearby trash can, and his person. This evidence included: (1) a receipt listing a “roach powder” purchase on April 25; (2) two receipts showing the purchase of new clothes, Band-Aids, and Clorox Oxi Magic on April 26; (3) jean shorts with blood-like stains; and (4) a used condom found inside the shorts’ pocket. A receipt also was recovered at a truck stop in Garnett, Kansas, showing Foster purchased fuel that morning.
A forensic pathologist determined blood loss from two neck stab wounds caused B.H.’s death. DNA on Foster’s shorts matched B.H.’s DNA. The DNA on the outside of the condom matched R.R.’s DNA, and DNA found on the inside matched Foster’s.
Foster denied committing the crimes. His defense at trial was that after dropping off his son in Iola, he went to Joplin, Missouri, and stayed with a friend. He denied returning to Iola.
The jury convicted Foster on all seven counts charged. The district court sentenced Foster to life in prison with a hard 50 minimum on the first-degree murder conviction. The district court cited several aggravating factors including the burning of B.H.’s body. On the other convictions, the district court sentenced Foster to a controlling term of 372 months in prison. This resulted in a total sentence of 972 months. He appeals his convictions and sentences.
Analysis
Issue 1: Foster’s competency during trial
Foster argues that despite having ordered him to Lamed State Hospital for a competency evaluation, holding a competency hearing, and finding he was competent to stand trial, the district court should have revisited his competency to stand trial sua sponte under K.S.A. 22-3302 because of his subsequent behavior. Specifically, Foster cites two instances of “confusion” at trial that he contends should have signaled his competency was again an issue, requiring the court to suspend the trial to make a new competency determination.
We must decide first whether to consider this issue because Foster did not object or otherwise raise a question about his competency during trial. Issues not raised before the district court generally cannot be raised on appeal. Exceptions may be granted if: (1) tbe newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case; (2) consideration of the theoiy is necessary to serve the ends of justice or to prevent denial of fundamental rights; or (3) the district court’s judgment may be upheld on appeal despite its reliance on the wrong ground. State v. Shopteese, 283 Kan. 331, 339, 153 P.3d 1208 (2007); State v. Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006).
Foster’s challenge raises due process concerns and questions the district court’s compliance with a statutoiy obligation. We believe this warrants review. See Shopteese, 283 Kan. at 339 (though not raised below, the competency issue merited addressing because a court’s acceptance of a plea by an incompetent defendant implicates due process); State v. Harkness, 252 Kan. 510, 514-17, 847 P.2d 1191 (1993) (defendant argued for first time on appeal that judge should have halted proceedings for another competency evaluation, and this court decided the issue); K.S.A. 22-3302(1) (“If . . . upon the judge’s own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.”).
Issue 1 Standard of Review
Both parties, citing Lafferty v. Cook, 949 F.2d 1546 (10th Cir. 1991), contend this first issue is a question of law subject to de novo review. But Lajferty addressed a related but separate question regarding the components of competency evaluations, which that court found was subject to de novo review. 949 F.2d at 1550. This question is not presented in Foster s appeal. Instead, we are asked whether the district court should have revisited Fosters competency because of his behavior during trial.
It is well settled we use an abuse of discretion standard when evaluating whether a district court made the correct decision regarding a defendant’s competency to stand trial:
“ ‘It is the trial court in whose mind a real doubt of sanity or mental capacity to properly defend must be created before [it] is required to order an inquiry solely on its own initiative. The necessity for an inquiry under such circumstances addresses itself to the discretion of the court and its decision will not be disturbed in the absence of abuse of sound judicial discretion.’ ” Harkness, 252 Kan. at 516-17 (quoting Van Dusen v. State, 197 Kan. 718, Syl. ¶ 6, 421 P.2d 197 [1966]).
Accordingly, we review this issue under an abuse of discretion standard. The party asserting the challenge bears the burden of demonstrating it. See State v. Brown, 285 Kan. 261, 303, 173 P.3d 612 (2007).
Issue 1 Discussion: Fosters competence at trial
Determining whether a defendant is competent to stand trial is governed by K.S.A. 22-3301 et seq. A defendant is incompetent to stand trial when he or she cannot understand the nature or purpose of tire proceedings or cannot make or assist in making his or her defense because of mental illness or defect. K.S.A. 22-3301. This is in accord with the United States Supreme Court’s standard, which states: “ ‘[The tjest must be whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.’ ” State v. Holloway, 219 Kan. 245, 254, 547 P.2d 741 (1976) (quoting Dusky v. United States, 362 U.S. 402, 402, 4 L. Ed. 2d 824, 80 S. Ct. 788 [1960]), overruled on other grounds State v. Hood, 242 Kan. 115, 744 P.2d 816 (1987).
Also codified is a judge’s duty to further inquire into a defendant’s competency should the circumstances warrant. K.S.A. 22-3302(1) states: “If . . . upon the judge’s own knowledge and observation, the judge before whom the case is pending finds that there is reason to believe that the defendant is incompetent to stand trial the proceedings shall be suspended and a hearing conducted to determine the competency of the defendant.” The failure to hold a competency hearing, when “evidence raises a bona fide doubt as to defendant’s competency, is a denial of due process.” State v. Davis, 281 Kan. 169, 177, 130 P.3d 169 (2006) (citing Pate v. Robinson, 383 U.S. 375, 378, 384-86, 15 L. Ed. 2d 815, 86 S. Ct. 836 [1966]); see State v. White, 263 Kan. 283, 316, 950 P.2d 1316 (1997).
In Foster’s case, competency questions were raised early. The district court ordered him to Lamed State Hospital for evaluation. Foster was admitted and stayed approximately 90 days. At the district court’s subsequent competency hearing, Dr. J.L.L. Femando, Foster’s evaluating psychiatrist at Larned, expressed his opinion that Foster’s history and manner did not suggest any psychiatric symptoms or illness preventing him from assisting his attorney and making known his concerns. The doctor said that while at Lamed, Foster demonstrated he understood the charges against him and possible dispositions if he was found guilty. Dr. Femando testified Foster was aware of a trial’s purpose, courtroom proceedings, what various court officers do, and showed some understanding of the plea bargaining process. The doctor concluded Foster was competent to stand trial.
Dr. Femando’s report was also skeptical about Foster’s claims of pretrial confusion. He wrote:
“Mr. Foster has indicated he ‘gets confused’ when discussing things, and therefore he may not be able to discuss matters with his attorney. This expressed ‘confusion’ has not been observed by the staff; on the contrary, Mr. Foster has been able to discuss issues on the unit well, make known his needs and to reason well. It is considered Mr. Foster’s complaint of being ‘confused’ to be a concerted effort to show staff he is not competent to stand trial.”
Based on Dr. Fernando’s report and testimony, the district court found Foster competent to stand trial. Foster does not challenge this determination. But he argues the district court should have initiated another competency evaluation because of two incidents occurring during trial.
The first instance Foster directs our attention to occurred at the close of voir dire. The following exchange involving the court, defense attorney Michael Brown, and Foster occurred:
“THE COURT: And, Mr. Brown, do you and your client accept the jury?
“[FOSTER]: I do not, sir. Not yet, sir.
“MR. BROWN: Sit down.
“THE COURT: You need to have a seat, please, Mr. Foster.”
During a short recess, the district court addressed Foster outside the juiy’s presence with this exchange:
“THE COURT: All right. We are back on the record outside of the presence of the jury. Mr. Brown, I believe your client had something he wanted to discuss with you and you wished to bring it up outside the presence of the jury.
"MR. BROWN: Yes. ... I didn’t understand Mr. Foster’s question. I was under the impression he wanted to address the Court or bring up an issue with the Court, something about the jurors being seated, what have you. Is that a fair statement, sir?
“[FOSTER]: Yes. Basically I don’t understand the chart thing and what’s going on; and based on the selection and stuff, I just think that some people that I mean shouldn’t get included on the - - on the roster; and I just - -1 don’t understand anything that’s going on here in the court; and that’s why I wanted, to you know, let - - I just want everybody to, you know give me all the information; but my attorney is busy and stuff. I’m not able to get the right information and stuff. I was - - so before the bathroom break I was actually trying to see if we could meet in the small courtroom, like all of us, so we can discuss before got sit [sic] on the jury; and that was the situation; but now they’re selected, that puts me in situation where I think it’s not - - I did mean comfortable.
“MR. BROWN: Well, Your Honor, I’ve given Mr. - - some time ago Mr. Foster a six-page letter explaining jury trial procedure, also visited with him and explained to him as far as jury selection is concerned it’s not an exact science. He quite frankly in my opinion - -
“[FOSTER]: . . . This is my first time in trial in general jury trial and situation. He can send me a lot of paper and stuff, but I’m not going to understand what all the paperwork is saying. If it’s a lot of words, going to take a while, you know, not going to draw my attention to what’s needed, so better for him to explain it to me than me to actually read about it. So, that’s why I was going - - trying to see if he explain to me what he was doing before he go ahead and jump into a situation I’m not prepared for.”
The district court summarized the proceedings for Foster. The district court told him if he had other questions, he could ask his attorney over the noon hour. The court also told Foster he could not interrupt the proceedings again, but if he had additional questions, they could be raised during recesses.
The second alleged incident of confusion occurred before Foster testified in his own defense. Foster claims the record indicates he did not understand the process or the consequences for testifying. More specifically, he argues that despite defense counsel and the district court explaining the process and being advised against testifying, he still did not grasp how his testimony would work including questioning whether he could invoke his right against self-incrimination on certain questions. Further, he argues the district court’s effort to educate him is proof his competency required reevaluation.
But we read the record differently. It shows there was communication between Foster and his counsel and that the district court interjected itself in the dialogue sufficiently to demonstrate Foster’s grasp of the circumstances. The record indicates Foster understood the district court’s explanations and signaled his understanding at the district court’s and the prosecutor’s later behests.
We find the district court did not abuse its discretion by failing to initiate further competency inquiries. After each instance of alleged confusion at trial, the district court took time to further explain what was happening. Foster acknowledged he understood the proceedings. The record shows there was communication between Foster and his counsel. We believe the trial court sufficiently alleviated any question as to whether Foster had the ability to consult with his attorney and understood the proceedings against him. This issue is without merit.
Issue 2: Foster’s concerns about his trial counsel
Foster next argues there was an irreconcilable conflict with his trial counsel that required the district court’s intervention. To sup port this, Foster cites three examples: (1) Foster interrupted voir dire to complain he did not understand the proceedings because his attorney had been too busy; (2) after the State rested its case, Foster told the court he was concerned about his attorney s failure to cross-examine one of the State’s witnesses; and (3) upon the court’s investigation of that complaint, Foster implied his attorney misled him about trial strategy.
Issue 2 Standard of Review
To protect a defendant’s right to counsel under the Sixth Amendment to the United States Constitution, a district court must inquire into potential conflicts between a defendant charged with a felony and defense counsel if (a) the court is aware of the conflict or (b) it is brought to the court’s attention. State v. Vann, 280 Kan. 782, 789, 127 P.3d 307 (2006). A district court’s failure to inquire is reviewed under an abuse of discretion standard. 280 Kan. at 789.
Issue 2 Discussion: No further inquiry required regarding any claimed conflicts
Foster first complains the district court should have inquired after he disrupted voir dire. But as indicated above in Issue 1, the district court addressed Foster’s concerns about jury selection and his complaint about not having enough time to talk with his attorney. At no point during that discussion did Foster indicate he believed his alleged confusion was caused by irreconcilable differences with his counsel. The district court gave Foster a brief summary of what had procedurally occurred up to that point. The district court told Foster if he had any other questions, he should ask his attorney over the recess. The district court also told Foster that while he was not permitted to interrupt the proceedings again, if he had questions he could raise them during recesses.
Foster did not claim at that time there was a conflict with his attorney, nor did he request new counsel. We note the record shows Foster capable of raising such issues because he requested and received new counsel twice prior to trial. Brown, who served as trial counsel, was Foster’s third court-appointed attorney. The district court allowed Foster adequate time to describe his concerns. The record does not reflect circumstances sufficient to find the district court should have inquired further into the possibility of an irreconcilable conflict between Foster and his trial attorney.
Foster next argues the court should have followed up when he complained about his attorneys lack of cross-examination. This arose after discussions about whether he would take the stand; Foster then told the court he had another question. He started with, “He was pretty brief with,” and then he was interrupted by his attorney:
“MR. BROWN: Well, let me address that. Mr. Foster has expressed some dissatisfaction with the cross-examination that I conducted of the last witness. It was rather brief, given the testimony that she presented. He wants me to recall her to go over some of her preliminary hearing testimony, primarily some cross-examination conducted by David Clark.
“If the Court will recall, counsel in the latter part of his examination of that witness went through the fact that she gave a couple statements, I think to one officer and then there was a couple of statements in a courtroom where there was a progression where she didn’t tell them some things in her first statement, then she told a little bit more in the second statement, but not all, and she did finally in the third one, and she gave an explanation as to why she could remember some stuff. I think there was some hair and a cigarette in an ashtray. Now, I will tell die Court I did review Mr. Clark’s examination. In fact, I probably read that transcript four times at a minimum. I’ve tried to explain to Mr. Foster that I do not intend to recall that witness because I don’t reprosecute my clients. If I were to recall that witness, I know what [the prosecutor] would do. He would just retry that case again to that witness, just turning his direct to a cross-examination; and it’s not my habit to revisit certain things twice in the trial.”
The court asked if there was anything else to be addressed. Brown stated he thought the cross-examination issue had been covered. Foster did not indicate otherwise. After Brown’s explanation, there was no need to further inquire; the issue was resolved. Brown gave a thorough response to Foster’s complaint.
In addition, trial strategy, after consultation with the defendant, is solely within defense counsel’s domain. Bledsoe v. State, 283 Kan. 81, 92, 150 P.3d 868 (2007). The witness Foster desired to have more thoroughly cross-examined was R.R., the surviving victim. She had already given a tear-filled, vivid, and graphic depiction of the April 2006 events. Brown’s strategy was reasonable. This court has declined to find a conflict where the defendant and de fense counsel have differing opinions on trial strategy. See State v. Banks, 216 Kan. 390, 393-95, 532 P.2d 1058 (1975).
Finally, Foster argues the district court abused its discretion when it failed to further inquire into his complaint that his attorney misrepresented the number of defense witnesses to be called. This occurred during the discussion regarding Foster testifying on his own behalf. The prosecutor wanted to ensure Foster realized his testimony would be subject to cross-examination. Foster then asked the judge whether his attorney would call multiple witnesses as the State had done. The following exchange occurred:
“THE COURT: Yes, if he wishes to call additional witnesses or present additional evidence, that is certainly an option that he will have.
“[FOSTER]: Is there a way for me to know that right now?
“MR. BROWN: I intend to rest after Mr. Foster testifies.
“THE COURT: There’s the answer to your question.
“[FOSTER]: That’s not what I was told by my attorney.
“MR. HATHAWAY: He just told you.
“[FOSTER]: But he didn’t like previously. That’s not what he told me, so that’s why I keep questioning because he keep[s] misleading me in a way.
“MR. BROWN: Well, how am I mis - - May I go in[to] this for ineffective assistance of counsel purposes? Let’s deal with it right now.
“THE COURT: All right.
“MR. BROWN: I’d like to know what I told him.
“THE COURT: Mr. Foster.
“[FOSTER]: Basically the information I have is that he’s - - the State go[es] first and my attorney goes up next, and he think he send [sicjsome papers saying he’s going to call port [sic] witness, something like that, port [sic] witnesses. Doesn’t that mean he going to be calling some people up for questioning stuff?
“MR. BROWN: Your Honor, I’ve asked Mr. Foster if he has any witnesses and been provided none, so other than Mr. Foster I have no other witnesses to call; and I’ve conducted cross-examination to the best of my ability, so I don’t intend to recall any State witnesses that will hurt me.”
This was the conversation’s extent. Once again, the issue was trial strategy. Further, there is nothing in the record to indicate there were other witnesses to call. But even if this showed a conflict, tire court sufficiently inquired.
To summarize, these instances do not show evidence of any conflict with counsel or neglect by the district court. Where further inquiry was needed, and even when it was not, the district court inquired. The district court did not abuse its discretion, and this issue fails.
Issue 3: The lack of a voluntary manslaughter INSTRUCTION
Foster next claims the district court should have instructed the jury on the lesser included offense of voluntary manslaughter. He concedes he did not request that instruction, nor did he object to the district court’s failure to give it.
Issue 3 Standard of Review
A district court must instruct the jury on lesser included crimes when there is some evidence that would reasonably justify a conviction of some lesser included crime. K.S.A. 22-3414(3); see State v. Engelhardt, 280 Kan. 113, 134, 119 P.3d 1148 (2005). But lesser included crime instructions are not required if the evidence would not permit a rational factfinder to find the defendant guilty beyond a reasonable doubt of the lesser included offenses. 280 Kan. at 134.
When a defendant does not object to a district court’s giving or failure to give an instruction for a lesser included offense, stating distinctly the matter the defendant objects to and the grounds for the objection, it is reversible error only if the giving or failure to give the instruction was clearly erroneous. See K.S.A. 22-3414(3); Engelhardt, 280 Kan. at 134-35. Further, if a defendant did not request a lesser included offense instruction, a district court’s failure to give the instruction is only clearly erroneous if a reviewing court “reaches a firm conviction that, had the instruction been given, there was a real possibility the jmy would have returned a different verdict.” State v. Simmons, 282 Kan. 728, 741, 148 P.3d 525 (2006) (citing State v. Boone, 277 Kan. 208, 220, 83 P.3d 195 [2004]).
Issue 3 Discussion: Voluntary manslaughter instruction not required
Foster argues district courts have an affirmative duty to instruct the jury on all lesser included offenses if there is evidence to support the instruction, even though the evidence may not be strong. Foster contends there was a real possibility the jury would have returned a different verdict had the instruction been given because: (1) R.R.’s testimony that Foster entered the apartment in the early morning hours of April 26 distraught and searching for his son; (2) R.R.’s testimony that “throughout the ordeal. . . Mr. Foster consistently said things to [B.H.] in an apparent attempt to upset her or make her jealous, such as saying how much better R.R. was at oral sex than [B.H.]”; and (3) R.R.’s testimony that she heard Foster whisper to B.H.’s corpse that she “made him do it.” Foster argues R.R.’s testimony painted “a consistent picture . . . that Mr. Foster apparently had anger directed at B.H."
The juiy was instructed on, and convicted Foster of, premeditated first-degree murder, the intentional and premeditated killing of a human being. K.S.A. 21-3401(a). The jury was also instructed on intentional second-degree murder, which is the intentional killing of a human being. K.S.A. 21-3402(a). Intentional second-degree murder is a lesser included offense of first-degree murder. See K.S.A. 21-3107(b) (a lesser included crime is a crime where all elements of the lesser crime are identical to some of the elements of the crime charged). Voluntary manslaughter, for which an instruction was neither requested by Foster nor given by the district court, is “the intentional killing of a human being committed upon a sudden quarrel or in the heat of passion.” K.S.A. 21-3403(a). It is a lesser included offense of both first- and second-degree murder. See K.S.A. 21-3107(a) (a lesser degree of those crimes); State v. Gallegos, 286 Kan. 869, 874, 190 P.3d 226 (2008).
To determine whether the voluntary manslaughter instruction was required, its elements must be reviewed. The key elements are: (1) an intentional lulling; and (2) legally sufficient provocation. 286 Kan. at 874. In this case, the facts leave no question B.H. was killed intentionally. She bled to death after having been stabbed in the neck twice. The inquiry then is whether there would have been evidence to support a defense argument that Foster had legally sufficient provocation for the murder. See 286 Kan. at 874.
When reviewing whether provocation was legally sufficient, an objective test is used. 286 Kan. at 875. Foster claims the jury could have found he committed the murder in the heat of passion. “Heat of passion” has been found to mean “any intense or vehement emotional excitement of the kind prompting violent and aggressive action, such as rage, anger, hatred, furious resentment, fright, or terror,” based “on impulse without reflection. [Citations omitted.]” State v. Guebara, 236 Kan. 791, 796, 696 P.2d 381 (1985). But the provocation “ ‘must be sufficient to cause an ordinary man to lose control of his actions and his reason.’ [Citations omitted.]” Gallegos, 286 Kan. at 875.
Foster did not make a provocation argument at trial. His defense was that he was not there. He testified he was innocent and 75 miles away in Joplin, Missouri. The evidence of premeditated first-degree murder and the jury’s resulting conviction show Foster planned B.H.’s murder. R.R.’s testimony indicates the calculated and lengthy manner in which Foster implemented his attack and eliminates the possibility Foster was provoked into killing B.H. in the heat of passion. The evidence demonstrates a preplanned and prolonged attack on B.H., which led to Foster’s first-degree murder conviction. We find no evidence to support giving the jury a voluntary manslaughter instruction.
The district court did not err by failing to give the jury the lesser included offense instruction on voluntary manslaughter.
Issue 4: Unanimous Jury Verdict
Foster alleges his constitutional right to a unanimous jury verdict was violated regarding the criminal threat and rape charges because the district court failed to give a unanimity instruction; i.e., the jury was not told to unanimously agree upon the specific criminal threat or rape that constituted each charge. In a multiple acts case, several acts are alleged and any one of them could constitute the crime charged. State v. Davis, 275 Kan. 107, 115, 61 P.3d 701 (2003). This creates potential for uncertainty as to whether the jury unanimously agreed upon any particular act to convict on each specific charge. See State v. Voyles, 284 Kan. 239, 248, 160 P.3d 794 (2007).
No unanimity instruction was given to Foster’s jury. The State alleges there were no multiple acts, arguing in its brief the events “were all part of one distinct act by the defendant.” As an alternative position, the State contends any error was harmless. Foster concedes he did not request a unanimity instruction on either charge.
Issue 4 Standard of Review
A defendant has a right to a unanimous jury verdict. See K.S.A. 22-3421; K.S.A. 22-3423(1)(d); State v. Stevens, 285 Kan. 307, 313, 172 P.3d 570 (2007). When this right is challenged, an appellate court must determine first whether it is presented with a multiple acts case. This is a question of law over which the appellate court exercises unlimited review. Voyles, 284 Kan. at 244 (quoting State v. Kesselring, 279 Kan. 671, 682, 112 P.3d 175 [2005]).
If the case is determined to be a multiple acts case, either the State must have informed the jury which act to rely upon in its deliberations or the district court must have instructed die jury to agree on the specific criminal act to convict. The failure to elect or instruct is error. Voyles, 284 Kan. at 244-45. When there is error, the final question is whether the error warrants reversal or was harmless. The test for harmlessness when a unanimity instruction was not requested or given is the clearly erroneous standard articulated in K.S.A. 22-3414(3). 284 Kan. at 252-53.
Issue 4 Discussion: Multiple acts
As we recendy noted in State v. Allen, 290 Kan. 540, 544, 232 P.3d 861 (2010): “There is no single test for whether conduct constitutes one act or separate and distinct multiple acts. A test that applies to kidnapping may not apply to possessing a controlled substance.” In State v. Schoonover, 281 Kan. 453, 506-07, 133 P.3d 48 (2006), we noted incidents are factually separate when independent criminal acts have occurred: (1) at different times; (2) at different locations; (3) when there was an intervening event, as opposed to a causal relationship between the acts; or (4) when a later act is motivated by a “fresh impulse.” See Kesselring, 279 Kan. at 683. These factors are appropriate for our multiple acts analysis. Courts must look to the facts and the theory of the crime as argued to determine whether a jury verdict implicates unanimity issues. We will consider the criminal threat conviction separately from the rape conviction.
A. Were there multiple acts of criminal threatP
To convict Foster of criminal threat, the jmy was instructed it had to find Foster threatened to commit violence with the intent to terrorize R.R. See K.S.A. 21-3419. The facts show Foster spent at least an hour, perhaps longer, terrorizing R.H. and R.R. He threatened to kill them to get diem into the bedroom and to undress. After he forced R.R. into the closet, he threatened to kill her if she tried to leave. After killing B.H., Foster threatened to kill R.R. and her family if she told anyone. All threats were made at nearly the same tíme and at the same location. R.R. testified she was terrified throughout the ordeal. And while other criminal acts occurred between Foster s multiple threats, it is difficult to see how they break the causal relationship between all of Foster s threats or demonstrate fresh impulses to commit multiple crimes of criminal threat.
Foster entered the apartment that morning carrying two knives. In conjunction with his words, he used the knives to gain R.R.’s compliance with his many demands, all of which constituted criminal acts. He preplanned his crimes by bringing the knives and buying boric acid. We find Foster was motivated by a broad and singular impulse to threaten and terrorize B.H. and R.R. The many threats were the result of a single impulse to terrorize the apartment’s occupants. Because of this finding, no further analysis is required. See Schoonover, 281 Kan. at 506-07. A unanimity instruction was not necessary for the criminal threat charge.
B. Were there multiple acts of rape P
Using the multiple acts factors for the rape conviction to determine whether the two incidents of vaginal penetration were part of one criminal act or multiple acts is more difficult. The jury was instructed that to convict on this charge, it must have been proven that (1) Foster and R.R. had sexual intercourse and (2) the act of sexual intercourse was committed without R.R.’s consent because she was overcome by force or fear. See K.S.A. 21-3502(a)(l)(A). R.R. testified she was raped twice, once before B.H. was killed and once after. Each occurred close in time to the other, and each occurred in the apartment, though in different rooms.
The difficulty with this issue is determining whether Foster was motivated by a “fresh impulse.” There is evidence the murder was premeditated at least hours in advance. It is conceivable the first penetration was motivated, in part, by Foster s desire to terrorize B.H, but it just as easily could have been motivated by a separate impulse. The second penetration could have been motivated by yet another impulse. An additional consideration is whether an intervening murder malees two close-in-time vaginal penetrations the product of different criminal impulses despite their taking place during one episode.
Ultimately, we believe the facts present two separate rapes. See State v. Zamora, 247 Kan. 684, 694, 803 P.2d 568 (1990) (separate acts of penetration constitute separate charges of rape). After the first penetration, Foster allowed R.R. to put her clothes back on but later ordered her to remove them again before the second penetration. In addition, the second penetration occurred after Foster attempted to force B.H. to drink boric acid, after he forced R.R. into the closet, and after he killed B.H. These are significant events in deciding Foster was not motivated by a single criminal impulse.
To proceed under these facts, it was necessary either for the State to inform the jury which acts to rely on in its deliberations or for the court to instruct the jury to agree on the specific criminal act supporting the rape conviction. The failure to elect or instruct was error. See Voyles, 284 Kan. at 244-45. Accordingly, since a unanimity instruction was neither requested nor given, the proper standard for review to determine whether the error requires reversal or was harmless is the clearly erroneous standard articulated in K.S.A. 22-3414(3) and Voyles, 284 Kan. 239, Syl. ¶ 3.
In this case, Foster made a general denial as his defense. He testified he was in Joplin, Missouri, 75 miles away, when the crimes occurred. R.R., the surviving victim, testified Foster was in Iola committing the crimes. There was a substantial amount of physical evidence supporting R.R.’s version, including B.H:’s blood on Foster’s jean shorts, R.R.’s and Foster’s DNA on a used condom found in Foster’s jean shorts, and a fuel receipt placing Foster in Garnett, a town near Iola, shortly after the crimes were committed. The jury convicted Foster of every crime R.R. testified he committed, including first-degree murder, aggravated arson, aggravated kidnapping, and aggravated criminal sodomy. If the unanimity instruction had been given on the rape charge, we find the result would have been the same. The jury still would have convicted Foster of rape.
Foster attempts to exploit language in Voyles about inconsistent testimony from the victim, in which it was said: “When a unanimity instruction was not requested or given but the defendant has made a general denial, error may be reversible when the trial is not merely a credibility contest between the victim and the defendant, e.g., due to inconsistent testimony from the victim.” 284 Kan. 239, Syl. ¶ 5.
Foster contends R.R. “changed her story multiple times” in statements to law enforcement because she failed to disclose the rape until her last police interview. Foster then asserts it was necessary for the jury to determine which of the victim’s statements were credible and which acts constituted the charge of rape when there were more acts presented than were actually charged.
But while it is true R.R. did not provide the rape details until her final statement to police, her trial testimony was consistent with that statement and there were never any significant contradictions. This cannot reasonably be characterized as changing her story multiple times about the acts supporting the rape conviction, as Foster now argues. In Voyles, the inconsistent statements at issue specifically dealt with the dates, times, locations, and other relevant details to the separate-but-distinct issue in the multiple acts analysis. Those details potentially demonstrated 20 different acts or offenses were committed when the defendant was charged with 8 crimes. See 284 Kan. at 244. That problem is not present in Foster’s case.
The only witness credibility choice for the jury was between (a) Foster saying he was in Joplin the entire time and did not commit the crimes or (b) R.R.’s testimony that Foster was in Iola and committed the crimes. The jury did not have to pick among contradicting accounts from differing victim’s statements to piece together the elements of the offense charged in order to find Foster committed rape. R.R.’s statements about this were consistent, and Foster’s argument is without merit.
Issue 5: Mistrial for Disruption from Public Gallery
Next, Foster argues the district court erred when it denied his motion for mistrial after Foster’s father, who was seated in the public gallery while R.R. was testifying, started “sobbing hysterically” and was escorted from the courtroom. Foster argues “the view of Mr. Foster’s own father being so moved by R.R.’s statements about the events that night [sic] that he burst into tears in the middle of her testimony had a severely prejudicial effect on Mr. Foster’s cases.” Foster contends the episode lent credibility to the victim’s accounts over Foster’s denials. Parenthetically, we note the record does not reflect the jury knew the man’s identity or his relationship to Foster, which distracts from Foster’s argument but is not determinative.
Issue 5 Standard of Review
As a general rule, a district court’s ruling on a motion for a mistrial is reviewed for abuse of discretion. A defendant alleging the error bears the burden of proving his or her substantial rights to a fair trial were prejudiced. State v. White, 284 Kan. 333, 342, 161 P.3d 208 (2007).
Foster argues we should review this issue de novo, citing State v. Manning, 270 Kan. 674, 696, 19 P.3d 84 (2001), and State v. Gary, 282 Kan. 232, Syl. ¶ 1, 236-37, 144 P.3d 634 (2006). But Manning actually supports the State’s arguments that abuse of discretion is the proper standard. 270 Kan. at 696. The Gary court stated abuse of discretion standards can sometimes be characterized as questions of law requiring de novo review. 282 Kan. 232, Syl. ¶ 1. Foster’s reliance on Gary is based on a misunderstanding of the issue it addressed. The Gary court answered a question requiring statutory interpretation, which unlike the issue presented here, was a question of law subject to de novo review. 282 Kan. at 236-37.
Foster urges it is necessaiy to interpret K.S.A. 22-3423(l)(c), which states:
“(1) The trial court may terminate the trial and order a mistrial at any time that he finds termination is necessaiy because:
(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the prosecution.”
Specifically, Foster contends the phrase “impossible to proceed with the trial without injustice” requires interpretation. He gives no reason why this issue requires statutory interpretation, and we see none. The statute clearly gives a district court the discretion to grant a mistrial if it finds it is impossible to proceed without injustice. When a statute’s meaning is clear, there is no need to resort to statutory construction. Double M. Construction v. Kansas Corporation Comm’n, 288 Kan. 268, 271-72, 202 P.3d 7 (2009).
This court has long used an abuse of discretion standard when determining whether denying or granting a mistrial was appropriate under K.S.A. 22-3423. State v. Culbertson, 214 Kan. 884, Syl. ¶ 1, 522 P.2d 391 (1974). The abuse of discretion standard even predates the statute. See State v. Hansford, 76 Kan. 678, 92 P. 551 (1907) (it is within the district court’s discretion to discharge a jury and order a mistrial), overruled on other grounds State v. Sandstrom, 225 Kan. 717, 595 P.2d 324, cert. denied 444 U.S. 942 (1979). There is no merit to Foster’s argument that the statute requires interpretation. The proper standard of review is abuse of discretion.
Issue 5 Discussion: The disruption did not require a mistrial
While Foster describes this episode at trial as his father “sobbing hysterically,” the records shows this is a mischaracterization. The transcript reflects the following exchange, which occurred outside the jury’s presence, after the outburst:
“MR. BROWN: . . . [Djuring the examination of the last witness, [R.R.,] if Court and counsel recall, I stood up at a certain point in counsels examination of that witness and asked if it be a good time to take a bréale. The reason for that ... was that we had some type of a reaction out in the gallery... I would describe as sobbing. I don’t know if it was a male or female. I never did turn to look, and it went on for a little bit. I’m not talking in terms of minutes, but probably a good thirty seconds or so before I made the request, and it got worse, and I think the Court decided rather than to take a brief recess to have that person from the gallery escorted out of the courtroom, but I could not help but note that that reaction from the gallery caught the jurors’ attention. I noticed several of them looking over there, and I have a concern as to that reaction from - - I hate to use the word assume. Maybe it was a family member of [R.R.’s], I don’t know. ... I think that reaction from the gallery may have possibly prejudiced this jury as far as invoking some type of emotion or sympathy; and that being the case I’d like the Court to consider a motion for mistrial, please.
“[MR. HATHAWAY]: ... If it makes any difference, from my vantage point where I was standing at an angle and I did see who it was; and it was [Foster’s] father. The other point I will bring up is - - and I am not in any way trying to be trite about this. What that did was take away - - take a little bit attention away perhaps from the witness victim who was sobbing and crying throughout her testimony, and so we’d ask you deny that motion.
“THE COURT: Well, the motion for mistrial is noted, but denied. I have never met Mr. Foster’s father. The gentleman who was sobbing and did break down was seated directly behind Mr. Rrown and Mr. Foster, next to another woman, who I believe, Mr. Rrown, if I am correctly recalling, you previously identified as Mr. Foster’s father and a cousin I believe.
“THE COURT: I also would comment that as far as Mr. Foster’s father being escorted out of the courtroom, he got up on his own initiative with the assistance of the - - the woman who was seated next to him; and they began to exit the courtroom on their own. I believe Sheriff Williams did come and offer some assistance, but I would not categorize it as him being escorted out of the courtroom, and I felt at that point in time that the best course of action would be to go ahead and allow the State to continue to proceed rather than interrupting the testimony at that point in time. . . .
“MR. BROWN: Also understand you have had a better viewpoint than I did.
“THE COURT: Certainly.
“MR. BROWN: Okay. Thank you.”
K.S.A. 22-3423(1)(c) permits a district court to declare a mistrial because of “prejudicial conduct, in or outside the courtroom, which makes it impossible to proceed with the trial without injustice to the defendant or the prosecution.” A district court is under a duty to declare a mistrial “ where there is some fundamental failure of the proceeding. When an event of prejudicial misconduct, the damaging effect which cannot be removed by admonition and instruction, is presented to the jury.’ ” White, 284 Kan. at 343 (quoting State v. Lewis, 238 Kan. 94, 97, 708 P.2d 196 [1985]).
We are aware of no decision from this court finding a gallery member’s conduct prejudicial to the degree that a mistrial was required, and we are not referred to any by Foster. But the facts here are sufficiently analogous to other circumstances in which defendants have sought a mistrial that some comparisons are possible.
In State v. Richard, 252 Kan. 872, 850 P.2d 844 (1993), the trial judge walked over and gave the victim witness a box of tissues while she was crying on the stand. The defendant objected, arguing it was prejudicial because the judge failed to maintain impartiality by showing sympathy. The defendant asked the court for a mistrial, which was denied. The issue was pursued on appeal, and this court refused to find an abuse of discretion, stating:
“Trials are frequently emotionally traumatic for witnesses who are personally involved in the events to which they are testifying. Acts of common courtesy should be encouraged, not discouraged. There is nothing in the record before us to indicate that the trial judge exceeded any boundaries or levels of judicial propriety in handing a tissue to a crying witness. We find no error or judicial impropriety.” 252 Kan. at 878.
In State v. Minski, 252 Kan. 806, 850 P.2d 809 (1993), the defendant objected to the district court’s ex parte discussion with, and dismissal of, a juror who fainted. The district court did not question the remaining jurors about whether the fainting juror had any impact on their ability to be impartial. Nor did the district court give the remaining jurors a cautionary instruction. Under these circumstances, the Minski court held the district court did not abuse its discretion when refusing to grant a mistrial. 252 Kan. at 812-15.
This court also upheld a district court’s refusal to grant a mistrial when the defendant had an emotional outburst. In State v. Perkins, 248 Kan. 760, 811 P.2d 1142 (1991), the defendant threatened to ldll himself in an obscenity-laden tirade about the integrity of the Kansas court system and his perception that his rights were being violated. This occurred in the jury’s presence. The judge ordered the defendant removed from the courtroom. The defense moved for a mistrial, which was denied. After the lunch bréale the defendant, “crying and shaking,” refused to return to the courtroom. 248 Kan. at 769. The next morning the defense again moved for a mistrial, citing concern about the defendant’s competency. Relying on the defendant’s competency evaluations, which stated disruptive behavior by the defendant would be “volitional in nature and not the result of a major mental illness,” the district court again denied a mistrial. 248 Kan. at 769. This court held the district court did not abuse its discretion. 248 Kan. at 769.
Foster directs our attention to State v. Franklin, 167 Kan. 706, 208 P.2d 195 (1949), in which the deceased victim’s mother during a second-degree murder trial stood up in the gallery, while the defendant was testifying in his own defense, and screamed four times, “He killed my son.” 167 Kan. at 709. Foster acknowledges this court found the outburst did not deny that defendant a fair trial, but he claims the case illustrates why a mistrial should have been declared in his case. He asserts this court cannot be certain beyond a reasonable doubt that the sight of his own family being moved to tears by the victim’s testimony did not prejudice his rights. But that is not the test we must apply.
In this case, the evidence does not support finding the district court abused its discretion when it denied a mistrial. The trial transcript demonstrates the judge was aware of the disturbance; but because Foster’s weeping father quickly left the courtroom with minimal disturbance, the district court found “the best course of action [was] to go ahead and allow the State to continue to proceed rather than interrupting the testimony at that point in time.” The transcript also informs us that Foster’s counsel agreed the district court judge had the best view of what happened. These facts do not rise to the level of disturbance or potential prejudice argued in Richard, Minski, Perkins, or Franklin.
Contrary to what Foster now argues, there was no hysterical display of emotion requiring his father to be escorted from the courtroom. There is no evidence the jury was prejudiced by the father’s emotional display. As the Franklin court observed: “That such outbursts and demonstrations often occur during the trial of homicide cases cannot be denied and they are familiar to the bench and bar of this and every other state.” 167 Kan. at 709.
Finally, we note the defense, after acknowledging the judge’s better view of what occurred, did not request the jury be admonished or given a cautionary instruction, nor did counsel further argue the issue warranted a mistrial. The district court did not abuse its discretion by denying Foster’s motion for mistrial.
Issue 6: Admission of Photographs Without Objection at Trial
At trial, Foster did not object to the admission of three photographs he now argues were prejudicial, specifically exhibits 7, 9, and 10. He concedes this, but he argues we should consider the issue for the first time on appeal to prevent a denial of his fundamental right to a fair trial. His argument is without merit and previously rejected by this court in other cases in which we emphasized the importance of following the legislative mandate in K.S.A. 60-404 requiring a timely and specific objection to preserve for appeal an issue regarding the admission of evidence. See State v. Richmond, 289 Kan. 419, 428-29, 212 P.3d 165 (2009); State v. King, 288 Kan. 333, 348-49, 204 P.3d 585 (2009). We decline to consider the issue under these circumstances.
Issue 7: Prosecutorial Misconduct
Foster next objects to the prosecutors remarks made during opening statements and closing arguments, which included descriptions of the crimes as “extreme brutality,” “complete terrori-zation,” and “sexual depravity.” He argues such terms were inflammatory and outside the wide latitude afforded prosecutors, invaded the province of the jury, were gross and flagrant, and showed ill will.
Issue 7 Standard of Review
Foster did not contemporaneously object to the State’s comments, but a timely objection is not required to preserve a prose-cutorial misconduct claim that occurs during opening statements or closing arguments. King, 288 Kan. at 349; State v. Decker, 288 Kan. 306, 314, 202 P.3d 669 (2009). An appellate court employs a two-step analysis regardless of whether a timely objection is made.
First, the court determines whether the prosecutor’s statements exceeded the wide latitude of language and manner afforded a prosecutor. Inherent in this latitude is the prosecutor’s freedom to argue reasonable inferences from the evidence. Second, the court determines whether the prosecutor’s comments constitute plain error. This occurs when the statements are so gross and flagrant they prejudiced the jury against the defendant, denying the defendant a fair trial. This requires examination of three factors: (1) whether the misconduct was so gross and flagrant it denied the defendant a fair trial; (2) whether the remarks showed ill will; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the prosecutor s statements would not have much weight in the jurors’ minds. Decker, 288 Kan. at 314-15; see State v. Tosh, 278 Kan. 83, 97-98, 91 P.3d 1204 (2004).
None of these three factors is controlling. Further, the third factor can never override the first two until the harmlessness tests of both K.S.A. 60-261 (prosecutor’s statements were inconsistent with substantial justice) and Chapman v. California, 386 U.S. 18, 22, 17 L. Ed. 2d 705, 87 S. Ct. 824, (error had little, if any, likelihood of changing the outcome of trial) reh. denied 386 U.S. 987 (1967) ), have been met. State v. Morningstar, 289 Kan. 488, 496, 213 P.3d 1045 (2009); State v. Scott, 286 Kan. 54, 78-79, 183 P.3d 801 (2008).
Because prosecutors have a duty to properly present the State’s cases with earnestness and vigor and to use eveiy legitimate means to bring about just convictions, they are afforded wide latitude in arguing their cases. Inherent in this wide latitude is the freedom to craft arguments that include reasonable inferences based on the evidence. King, 288 Kan. at 351.
Issue 7 Discussion: There was no prosecutorial misconduct
Foster argues the text from the prosecutor’s opening statements and closing arguments, emphasized below, was inflammatory and outside the wide latitude afforded prosecutors, i.e., a violation of the first prong of the prosecutorial misconduct analysis. Specifically he now objects to the prosecutor stating during opening statements, “This is the beginning of what can only be described as an early morning of extreme brutality resulting in the death of one young woman and the complete terrorization of another at the hands of the defendant.” He also objects to the prosecutor’s description of upcoming evidence as acts of “sexual depravity perpetrated on these two young girls.” From the closing arguments, Foster objects to the prosecutor stating, “[T]he defendant has got two people in that bedroom committing all kinds of unspeakable acts.”
We find these remarks based on the evidence and within the wide latitude given to prosecutors. As the trial unfolded, the prosecutor presented evidence that the crimes committed were extremely brutal and terrorizing, the latter of which is an element of criminal threat. See K.S.A. 21-3419. Furthermore, the brutality and terrorization comments were immediately followed by a list of the crimes charged. The prosecutor stated, “It can also be described as first-degree murder, rape, aggravated sodomy, aggravated arson, aggravated kidnapping, aggravated battery, and criminal threat.”
The sexual depravity comment immediately followed an in-depth description of the acts R.R. would testify Foster made her and B.H. do, including performing oral sex on Foster and on one another, in addition to Foster raping and sodomizing R.R. The sexual depravity language concisely summarized the acts the prosecutor had just discussed. Finally, the “unspeakable acts” phrase fits within the evidence supporting this conviction.
To be sure, the prosecutor used powerful language to describe the evidence, but no more so than prosecutors in other cases where this court has refused to find prosecutorial misconduct. See State v. Nguyen, 285 Kan. 418, 422-26, 172 P.3d 1165 (2007); State v. Alger, 282 Kan. 297, 304-06, 145 P.3d 12 (2006). Further, under the circumstances in this case, the prosecutor’s words characterizing the acts perpetrated on B.H. and R.R. were less inflammatory than the factual descriptions themselves. These remarks pass the first prong of the analysis; they were within the wide latitude afforded a prosecutor. No further analysis is required regarding tírese remarks.
Foster next complains of additional comments made during closing arguments. He objects to three statements by the prosecutor: (1) “So there’s definitely a substantial risk of bodily harm to those two people in [the adjacent apartment]”; (2) “[The knife]’s a deadly weapon in the defendant’s hands”; and (3) “[R.R.] was definitely overcome by force or fear.” Foster argues these statements invaded the province of the jury, were gross and flagrant, and deprived Foster of a fair trial. Additionally, he argues that when considered with the comments made during opening statements, they show the prosecutor’s ill will.
The State replies that the complained-of comments, when taken in context, were within the wide latitude given to a prosecutor or, alternatively, were harmless because of the overwhelming weight of the evidence. The State contends that because these comments were prefaced with questions, they were permissible.
We find that when read in context, the prosecutor’s comments were reasonable inferences drawn from the evidence that did not invade the province of the jury. Specifically, the prosecutor said:
“The elements of all the crimes charged in this case were set out in the jury instructions. Every one of them has to be proven beyond a reasonable doubt by me, die State. I am going to go through those elements with you . . . .
“. . . The defendant intentionally put that burning washcloth on that bed and on [B.H.]. Is there a human being in that building? Well, folks, unfortunately that human being wasn’t [B.H.]. She was dead. The human beings we’re referring to in that duplex were the two that Officer Andres testified about next door at 412. They were there. Now, was there substantial risk of bodily harm? We submit to you there definitely was. There’s two risks... .It creates a substantial risk because it’s going to bum - - it may or may not bum down; but, you know, tire other substantial risk - - and you folks know this again, common sense - - what kills most people in house fires? It’s not the flame is it? It’s the smoke inhalation. So there’s definitely a substantial risk of bodily harm to those two people in 412.
“The aggravated battery charge is charged against - - of the defendant committing aggravated battery against [R.R.]. He caused bodily harm to more than one person; but in this case, he caused bodily harm to [R.R.]. And you remember her testimony when he pulled her out of the closet and held her down over the body of [B.H.] and threatened her again that this would happen to her and not even witness protection program could help her, and then he brought the knife across in a slashing motion, and [R.R.] raised her hand in defensive motion, and she got cut. That’s the bodily harm. Was it done with a deadly weapon? Ladies and gentleman, you saw, you heard, and you will see again what he did with that knife to [B.H.]. That’s a deadly weapon in the defendant’s hands.”
This was permissible prosecutorial argument based on the evidence. This issue has no merit.
Issue 8: Cumulative Error
Foster argues that even if all the above errors are found harmless, cumulatively they substantially prejudiced him and denied bim a fair trial. This argument fails because, as addressed above, the only issue in which we found error was within Issue 4, i.e., this was a multiple acts case requiring a unanimity instruction on the rape charge.
Cumulative trial errors, when considered collectively, maybe so great as to require a defendant’s convictions to be reversed. The test is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. A single error does not constitute cumulative error. See State v. Ellmaker, 289 Kan. 1132, 1156-57, 221 P.3d 1105 (2009) (where multiple errors have not been found, cumulative error doctrine is inapplicable).
Conclusion
Each of the 11 issues raised by defendant Rory M. Foster in this appeal lacks merit. The convictions and sentences are affirmed.
Davis, C.J., not participating.
John C. Gariglietti, District Judge, assigned. | [
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The opinion of the court was delivered by
Johnston, C. J.:
This action was brought by the Union National Bank of Wichita, the holder of a deposit claimed by several parties, in which the court was asked to determine to whom the deposit should be paid, and in the petition the plaintiff stated that it was ready and willing to pay the deposit to the person or persons entitled to the same. It was alleged by plaintiff that on December 7, 1920, N. O. Tate deposited in the bank the sum of $8,210.70, to the joint account of J. E. Kramer and Otie A. Kramer, and subject to their check. Shortly afterwards a garnishment summons was served upon plaintiff in the action of H. Hatfield against J. E. and Otie A. Kramer; later another garnishment summons was served on plaintiff in the suit of the Citizens State Bank of Belle Plaine against the Kramers; still later plaintiff was served with a garnishee summons in the action of the Stock Yards Loan Company against the Kramers. Each of these garnishing parties claimed the money on deposit, and it was also claimed by Otie A. Kramer as her property. All the claimants were made parties defendant in this action.
The contention of the creditors was that J. E. Kramer was insolvent when the Tate land, the title of which had been placed in Otie A. Kramer, was purchased; that he purchased the land with his own funds and placed the title in the name of his wife with the intent to defraud his creditors; that no money had been loaned to him by his wife and that he was not indebted to her when the Tate land was conveyed to her. Otie A. Kramer’s contention was that in 1901 she received from her aunt the sum of $15,000, which amount she turned over and loaned to her husband, and that in 1919 before he became indebted to the complaining creditors, and in response to her request that he pay or secure the payment of the money previously loaned to him, he caused the title to the Tate land, that he had purchased, to be placed in his wife’s name; that at the time of the conveyance to her he owed her about $33,000; that it was not done to defraud creditors, but to pay a valid obligation, and that the deposit in question was the final payment made on the purchase of her land. Upon the testimony received the trial court made the following findings of fact:
“1. On December 7, 1920, one, N. O. Tate, deposited in the Union National Bank of Wichita, Kansas, plaintiff herein, eight thousand two hundred ten and 70/100 dollars (18,210.70) to the credit of J. E. Kramer and Otie A. Kramer, defendants herein.
“2. The defendant, Otie A. Kramer, had no knowledge at the time said deposit was made that said deposit had been made to- the joint credit of herself and her husband, J. E. Kramer, and said deposit was made by the said Tate without consulting either the defendant, Otie A. Kramer, or J. E. Kramer, as to whose name the money should be deposited in.
“3. The defendants, J. E. Kramer and Otie A. Kramer, were husband‘and wife. The defendant, J. E. Kramer, died intestate September 8, 1921, subsequent to the making of said deposit and subsequent to the bringing of this action.
“4. The said sum of eight thousand two hundred ten and 70/100 dollars ($8,210.70) deposited by N. O. Tate was the balance of the purchase price of a farm in Scott county, Kansas, which the said Tate purchased from the defendant, Otie A. Kramer. All negotiations regarding the purchase of the farm by Tate were had between Tate and J. E. Kramer, husband of Otie A. Kramer. The record title of the farm at the time it was purchased by Tate was in Otie A. Kramer.
“5. J. E: Kramer purchased the said Scott county farm in 1919 and had the seller convey it to Otie A. Kramer, SO' that at all times while the farm was in the possession of the Kramers the record title stood in Otie A. Kramer.
“6. The farm was purchased by J. E. Kramer and title taken in the name of Otie A. Kramer prior to the time that the said J. E. Kramer became indebted to the defendants, Stockyards Loan Company, H. Hatfield, and the' Citizens State Bank of Belle Plaine, Kansas, but after the defendant became indebted to the intervener, the First National Bank in Wellington, Kansas.
“7. The defendant, Otie A. Kramer, was presented by her aunt, Phoebe Parkinson, with sums aggregating the sum of fifteen thousand dollars ($15,000). This amount she turned over to her husband, J. E. Kramer, in 1901 to handle for her. J. E. Kramer invested the money, first, in a flour mill in which he was the heaviest stockholder, and afterwards took it out of the flour mill and invested it in other ways. About the time that J. E. Kramer bought the Scott county farm, his wife asked him to secure her in some way for her money which he had. It was with the intent of repaying to his wife what he owed her that he purchased the Scott county farm and took the title in her name.
“8. The court finds that the purchase of the Scott county farm and the taking of the title in his wife’s name was not done by J. E. Kramer to defraud, hinder or delay his creditors, but was done with the intent and purpose of reimbursing his wife in part for her moneys amounting to fifteen thousand dollars ($15,000), of which he had had the use for eighteen years and for which he had paid no interest.
“9. The court further finds that in addition to turning over the Scott county farm to Otie A. Kramer, J. E. Kramer had also' turned over to her seven thousand one hundred dollars ($7,100) in Liberty bonds, and a home in Wichita which was subject to a mortgage. The amount of said mortgage does not appear from the evidence.
“10. The court finds that at the time J. E. Kramer delivered the Scott county farm to Otie A. Kramer and the Liberty bonds and the house in Wichita, he was indebted to her in the sum of fifteen thousand dollars ($15,000), with interest at the rate of 6 per cent per annum from the year 1901, or about thirty-three thousand dollars ($33,000).
“11. The total purchase price paid by Tate for the Scott county farm was eighteen thousand two hundred ten dollars ($18,210). Five thousand dollars ($5,000) was deposited in the plaintiff, Union National Bank, to the credit of O. A. Kramer. It appears, however, that this account of O. A. Kramer was opened by J. E. Kramer, and that the defendant, Otie A. Kramer, had no knowledge of it. It does not appear that she ever received the five thousand dollars ($5,000) which was deposited in this account. Otie A. Kramer knew nothing of this account until the evidence in regard to it was introduced at the trial of this case.”
As conclusions of law the court decided that the placing of the title to the Tate land in Otie A. Kramer was not done with the intent to defraud creditors, but it was to return to her a part of the moneys which he had held since 1901. That the deposit in question was the property of Otie A. Kramer; that the $15,000 received by J. E. Kramer from her was not a gift to him, but was loaned to him to handle for her according to his best judgment, and that the creditors had no claim on the deposit by reason of the indebtedness of J.' E. Kramer to them. The Stock Yards Loan Company and the Citizens State Bank appeal, and insist that the findings and judgment are unsupported by the evidence.
The principal points discussed on the appeal involve questions of fact which have been determined by the trier of the facts. They relate mostly to the matter of whether J. E. Kramer was actually indebted to his wife when the Scott county land was transferred to her as a payment of indebtedness, and also to the claim of the insolvency of J. E. Kramer when the property was turned over to her, and whether it was done by him with the intent to defraud his creditors. An examination of the evidence in the record is sufficient to show that Otie A. Kramer received $15,000 in 1901 and that she loaned and turned it over to her husband to be invested and handled for her benefit. We have no hesitation in saying that the proof is sufficient to uphold the finding that there was a bona fide indebtedness of Kramer to his wife, and further that the land was transferred to her in payment of that indebtedness. The deposit in question was the final payment oh the land, and if she was the owner of the land and had legally acquired it she was the owner of the deposit and entitled to recover it.
There was considerable testimony about the financial condition of J. E. Kramer and as to his insolvency when the transfer was made as a payment to his wife. The evidence presented related' largely to his financial condition about two years after the .land transaction and payment. The appellants were subsequent creditors, and the burden was upon them to show such fraud as would defeat the transfer in payment of the debt to Mrs. Kramer. (Dodd Brown Co. v. Hills & Kramer, 21 Kan. 707; Long Bros. v. West & Co., 31 Kan. 298, 1 Pac. 545; Baughman, Sheriff, v. Penn, 33 Kan. 504, 6 Pac. 890; Bank v. Chatten, 69 Kan. 435, 77 Pac. 96.) The transfer was not open to the attack of subsequent creditors unless it was made in contemplation of future indebtedness to those designed to be defrauded by the transfer. (Sheppard v. Thomas, 24 Kan. 780.) There was no testimony that the transfer was made with a view of defrauding subsequent creditors, and no testimony that if there was any fraudulent intent on the part of Kramer that his wife had knowledge of it or participated in it. Long before the indebtedness to appellants arose the transfer to appellee had been placed on the public records, and appellants can hardly insist that their claims were incurred on the faith that the property belonged to the debtor. The insolvency of J. E. Kramer at the time of the transfer was a far-drawn inference. A statement of his made in 1919 to obtain credit was to the effect that his assets exceeded his liabilities more than $200,000, while at the time of his death, two years later, he was insolvent. The fact that he was insolvent in 1921 does not prove that he was insolvent in 1919. Large fortunes have been lost and wealthy men have become insolvent in much less time. Even if it had been shown that he was then owing large sums to others, and was in fact insolvent, he had a right to prefer her claim providing she had a bona fide indebtedness against him and was not guilty of fraud. (Monroe v. May, Weil & Co., 9 Kan. 466. National Bank v. Jaffray, 41 Kan. 694, 21 Pac. 242; National Bank v. Croco, 46 Kan. 629, 26 Pac. 942; and other authorities therein cited.) Of course the fact that the preferred creditor is the wife or a near relative of the debtor, requires a close scrutiny of the facts as to the existence of a valid indebtedness and the good faith of the payment, but it must be assumed that the trial court gave due consideration to the relation of the parties and to all circumstances in evidence as to their motives and purposes. Considerable is said in argument as to suspicious circumstances which it is insisted tend to show bad faith in the transaction, but granting that some of the evidence tended to sustain the claim of appellants, there was evidence tending to uphold the findings of the court, and as the matters involved were questions of fact, its determination of these issues upon conflicting evidence ends the controversy.
A question is raised as to the competency of Otie A. Kramer to testify in relation to 'her dealings with her husband. Most of her testimony was received without objection to the competency of the witnesses. Some objections were made as to competency of evidence, as, for instance, that it was leading, hearsay and not within the issues of the case, but these objections did not raise the question as to the competency of the witness. (C., K. & N. Rly. Co. v. Behney, 48 Kan. 47, 28 Pac. 980.) Most of the testimony as to the dealings of the witness with her husband was drawn out by appellants on cross-examination. One objection was made under R. S. 60-2803, as to a communication with her husband, but none appears to have been made under R. S. 60-2804. Even if the question may be said to have been raised, the witness was not testifying for or against her husband. The husband was not a party to the action. If the objection had been made under R. S. 60-2804, it-would not have been good. The action was brought to determine the right to a deposit and not to the title of land. The title to it was derived by the witness from Tate. It was never in her husband, and no claim was made to it by his heirs or grantees. The appellants do not come within the class enumerated; that is, neither of them was an executor, administrator, heir at law, next of kin, surviving partner, or assignee of the deceased. H. Hatfield, who was named as a defendant, was the administrator of Kramer’s estate, but it appears that he disclaimed any interest in the land and is not appealing from the decision. If part of the testimony was incompetent as to one party, it devolved on the plaintiff to ask the court to limit the application of the testimony to the one against whom it was competent, but this was not done. (Taylor v. Deverell, 43 Kan. 469, 23 Pac. 628.) More than that, the case was tried by the court without a jury, and it may be presumed that the judge disregarded any evidence that was incompetent. No error was committed in the admission of evidence.
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The opinion of the court was delivered by
Johnston, C. J.:
The superiority of liens upon an automobile is the subject of controversy in this case. F. J. Huff, the owner of the automobile, had given a chattel mortgage on it, which had been filed for record and had been duly assigned to the intervener, the Valley Securities Company. Some time later the owner took the car to the plaintiff and contracted with it for repairs and renewals. That company procured mechanics who did the necessary work in making the changes, taking off the old wheels, tires, rims and tubes, and fitting in their places new tires, rims and wheels, at the agreed price of1 $80. The bill for the work done and materials furnished was not paid, and the plaintiff filed a lien for labor and materials against the car in the form prescribed by law. The chattel mortgage previously executed is conceded to be a valid instrument, which was duly recorded, and the claim of the intervener is that it is first in time, and hence is first in right, and its lien should be regarded as superior to that of the mechanic’s for labor and materials. The trial court held the lien of the mechanic to be! superior to that of the mortgagee, and the intervener appeals.
The statute under which the mechanic’s lien is claimed provides, among other things, that a mechanic or other person shall have a first and prior lien upon an automobile or other vehicle which comes into his possession for the purpose of having work done thereon, or for repairs and improvements, for the reasonable value of the services performed and of the material used in the performance of such services. (R. S. 58-201.) It is said by the intervener that this statute is the creation of the revision commission and not an enactment of the legislature. While the commission reported the revision to the legislature, it was in fact constitutionally enacted by that body and is as much the law of the state as if it had been initiated by the legislature without the report of the commission. (State, ex rel., v. Davis, 116 Kan. 211, and 663, 225 Pac. 1064.) Prior to 1913 liens of mechanics or artisans were not given priority over other liens, but in that year the legislature passed a statute providing that certain mechanics should have a first and prior lien upon vehicles, including automobiles, which came into their possession to have work done or repairs or improvements made thereon. (Laws 1913, ch. 218; Gen. Stat. 1915, § 6092.) The priority thus provided has been in force since that time. In 1917 that act was amended so as to extend the preference to other persons. (Laws 1917, ch. 232.) In the revision of 1923 the act was amended in some particulars, but the priority of such liens was reenacted. (R. S. 58-201.) While the power of the legislature to create liens is conceded, it is contended that the statute in question in effect deprives a prior mortgagee of his property without notice or a judicial hearing, and is a violation of the due-process clause of the federal constitution. The question raised is not a new one in this ■state. The principle involved was considered and determined in the early case of Case, Adm’r, v. Allen, 21 Kan. 217, where an agister’s ■statutory lien was held to be paramount to a prior mortgage lien. In this opinion Justice Brewer said in substance that the mortgagee having left the cattle in the possession of the mortgagor, who had turned them over to an agister to be kept and fed, the latter’s possession was rightful and the keeping and feeding gave rise to the lien which was provided by statute; that the keeping and feeding was as much for the interest of the mortgagee as the mortgagor, because the cattle were thereby kept alive and the mortgagee’s security protected. It was also said that:
“The principle seems to be that where the mortgagee does not take the possession, but leaves it with the mortgagor, he thereby assents to the creation of a statutory lien for any expenditure reasonably necessary for the preservation or ordinary repair of the thing mortgaged. Such indebtedness really inures to his benefit. . .■ . The work or material enhances or continues the value of that upon which the work is done or to which the material is furnished; and the mortgagee can always protect himself against such liens, or at least any accumulation of debt thereon, by taking possession of the chattel mortgaged.” (pp. 220, 221.)
The principle of that case has been followed and approved in .another one involving repairs and improvements on an automobile, in Automobile Co. v. Dennis, 104 Kan. 241, 178 Pac. 408, whei’e it was held that the lien under a conditional contract, which was regarded to be the same as one obtained under a chattel mortgage, was subordinate and inferior to a mechanic’s lien for labor and material expended in putting and keeping it in an efficient condition. These cases have been recently cited and approved in Cattle Loan Co. v. Warren, 115 Kan. 21, 222 Pac. 138. We see no reason to depart from a rule established about fifty years ago and which has been consistently followed since that time. Under it the .statute cannot be regarded as invalid, as the intervener must be regarded as having taken the mortgage with a knowledge of the statute and of the interpretation placed upon it. All know and the mortgagee must have contemplated that the use of an automobile which he chose to leave in the possession of the mortgagor •would inevitably require repairs and replacements. By intrusting the possession of the car to the mortgagor the mortgagee in a sense made him its agent to keep it in a going condition for the benefit not ■only of the mortgagor, but also for the benefit of the.'mortgagee, .and in that way preserve the value of its security. Following these •decisions, it must be held that the statute giving a lien for labor and material on the automobile, and making it superior to that of a prior mortgage, does not violate the constitutional provision mentioned, and therefore the judgment of the district court will be .affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one by the administrator of the estate of Ethan Zane to recover on a certificate of deposit issued by the bank to Zane in his lifetime. The certificate, duly indorsed, was in possession of Ida Conley. On application of the bank she was made a'party to the action. She answered, claiming ownership of the certificate. The administrator recovered, and the claimant appeals.
Circumstances out of which the litigation arose are stated in the opinion in the case of Nestlerode v. Commercial Nat’l Bank, just decided, ante p. 399, and need not be recited here. When interpleaded, Ida Conley, who will be called the defendant, answered that on March 7, 1924, the day following Zane’s removal from the home of his niece, Mrs. Harmon, to his own home, Zane delivered to her two certificates of deposit, one for $500, issued by the People’s National Bank, and the certificate in controversy for $2,000, issued by the Home State Bank. The certificates were indorsed when she received them. The consideration for the transfer was previous rendition by defendant of kindly services to Zane, and agreement on her part to keep house for him and nurse and care for him as long as he should live.
Defendant was one of those who had taken an interest in Zane’s comfort and welfare during his decline, and from March 6 until his death on March 26, she took care of him day and night. Witnesses testified that after March 7, Zane confirmed to them delivery of the two certificates to defendant, under the arrangement with her which has been described. In an action against the People’s National Bank, defendant vindicated her right to the $500 certificate, and the bank did not appeal. In the present action, defendant’s claim to the $2,000 certificate was resisted, on the ground, among others, that Zane was mentally incompetent. By general verdict and by special findings of fact, the jury determined that on March 7 Zane did not possess mental capacity to know what property he had, to understand and weigh claims upon him with respect to disposition of his property, to compare the value of services and property, or to understand the consequences of his conduct. The evidence was conflicting. The verdict and findings were supported by sufficient competent evidence, and this court must accept them as conclusive of the controversy respecting Zane’s capacity to divest himself of his property.
The administrator alleged, but failed to prove, that Emma W. Zane was Ethan Zane’s sole heir. The allegation was superfluous, and the administrator was not obliged to prove it. It was his business to collect the assets of the estate of the deceased. The probate court will properly distribute them.
Defendant asserts the administrator could have no interest in the certificate because it was duly indorsed and delivered by the payee to defendant, for a valuable consideration, in the payee’s lifetime. If Zane was mentally incompetent, the delivery was not a binding delivery, and it was the administrator’s duty to restore the certificate to a place among Zane’s effects.
Defendant offered in evidence the proceedings in the case against the People’s National Bank, and the court refused to admit them. Res judicata was not pleaded, and without a pleading that some pertinent matter was in issue and was finally determined between the same parties in the former litigation, the papers in' the first action were not admissible in evidence at the trial of the second.
Defendant offered in evidence what purported to be an unsigned will of Ethan Zane, dated December 13, 1920. The purpose of the offer was to show Zane’s friendly and considerate attitude toward defendant, and the will did give Zane’s house and lots to his brother Alonzo and the defendant for a home, and gave defendant a sum of money. The error in rejecting the evidence, if error was committed, was not prejudicial. Defendant was not denied relief because she was not worthy of Zane’s bounty, but because he lacked capacity to dispense bounty. It is further contended the will showed the certificate was intended for the testator’s brother Alonzo, and was not intended to be, and was not, a part of Ethan Zane’s estate. Of course the will transferred nothing, because it was not signed, and could not be probated. The certificate was dated almost three years after the will was drafted. Alonzo died in December, 1923, three months before Ethan’s death occurred. Evidently the certificate had not been delivered to Alonzo, because defendant declares it was in Ethan’s possession on March 7, 1924. If it belonged to Alonzo’s estate, Ethan’s delivery of it to defendant gave her no title, and she defended in her own right.
Defendant complains because the court instructed the jury she could not recover if her possession of the certificate was gained by duress or undue influence, when- no evidence of duress or undue in-^ fluenee was introduced. In stating to the jury various theories of the case, the court included duress and undue influence. In a later instruction, No. 11, the court told the jury there was no evidence from which they could find duress or undue influence.
An incident occurred at the trial which need not be related here. As between attorneys, honors were even, the court treated the matter diplomatically, and this court is quite confident the jury determined the case upon its view of the evidence.
The district court has control over the formal records of its proceedings. Whoever may have prepared or assented to a journal entry complained of, the district court declined to strike it from the files on defendant’s motion, and so has approved it. What occurred at the hearing on the motion to strike is not disclosed, integrity of the verdict is not involved, and the subject is no longer of any importance.
William Harmon, a witness for the administrator, testified that he and Charley Zane found Ethan Zane in a certain condition and under certain circumstances on December 3, 1923, the day Ethan was taken to the Harmon home. The administrator did not call Charley Zane as a witness. Omission to call him did not warrant the granting of a new trial on the ground of accident and surprise which ordinary prudence could not have guarded against. The administrator was not obliged to call Charley-Zane to corroborate Harmon, or for any other purpose, and if defendant believed Charley Zane would not eori’oborate Harmon, she should have taken steps to procure his testimony.
Harmon testified that, when he and Charley Zane discovered Ethan Zane in the forenoon of December 3, Ethan was almost frozen. At the hearing on the motion for new trial, defendant offered in evidence a certificate of the meteorologist of the United States weather bureau stating that from 1 a. m. to 7 p. m. of March 3, temperatures ranged from 37 degrees to 44 degrees Fahrenheit. The evidence was not newly discovered, in the legal sense. The weather record was a quasi-public record, known to be in existence and readily accessible at the time of the trial. Besides that, the true state of the weather in December, 1923, was not particularly pertinent to the true state of Ethan Zane’s mental health in March, 1924, the issue on which defendant was defeated.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
This is a railroad crossing accident case. The plaintiff appeals from a judgment against her sustaining a demurrer to her evidence.
The sufficiency of the evidence to compel its submission to the jury is the only question presented. The evidence tended to show that between Kansas City and Olathe the defendant operated a line of double-track railroad, across which runs the Jefferson highway, a much traveled road from Kansas City, Mo.; that the plaintiff going east attempted to drive an automobile across the railroad tracks, there running approximately north and south; that with the plaintiff in the automobile were her husband and two other persons who were riding with her as her guests; that as she approached the railroad crossing she noticed the regular railroad crossing sign and another sign which read, “Railroad Crossing 100 feet”; that she saw the signs and saw a train coming from the north on the track next to her; that she stopped at about 100 feet from the railroad tracks; that she again started her car, approached the passing train slowly, and stopped again about two car-lengths from the tracks; that the train passed by going to the south and had passed somewhere from 50 to 100 feet when she started to cross the tracks slowly; that she then saw there were double tracks, but could not tell whether the other track was an extra track or a switch track; that she looked and listened all the time; that when she got on the east track, she saw a train coming rapidly from the south on that track; that a 'collision occurred; that the railroad tracks were in a cut, and the highway approaches to the tracks were down grade to them; that when about thirty feet from the east track, the track farthest from her, she had a view of the railroad to the south for a distance of approximately 1,000 feet; that she did not hear any crossing signals blown by the engine of the approaching train, nor the ringing of any bell; that the passing train left smoke behind it; that when she started across the tracks with her car and the first train' was on the west track going south, she could not see anything coming from the south on the east track; and that the collision resulted in the complete destruction, of the automobile, her injury, and the death of her husband. The abstract shows that part of the plaintiff’s testimony was as follows:
“Q. When, you saw this train approaching from the south what, if anything, did you do with reference to moving on or back? A. I tried to get off the track, but I couldn’t. At the time the train hit me the.front wheels of my automobile were beyond the east rail.
“Q. Why didn’t you proceed eastward out of the way of the train? A. Well, you couldn’t.
“Q. Why? A. Well, there is a grade there and you just couldn’t make the speed to get across that crossing in time; it was rather rough.
“Q. What did you do at the time you saw this train about to hit you? A. I tried to get a little more speed to get out of the way.
“Q. What do you mean by giving it a little more speed? A. Give it a little more gas.
“Q. Did you do that? A. I did. I got very little response from the car and didn’t get very far. The road in front of me was up grade and it starts up just after you leave the east track. As I saw this train coming and attempted to get away the train struck us. That is all I know.”
The plaintiff brings the} action for damages caused by the destruction of the automobile, the injuries to herself, and the death of her husband.
This case is different from other crossing cases which have heretofore been determined by this court. Here, there was a double-track railroad. The plaintiff stopped, looked and listened before attempting to cross the tracks, and the crossing was not in the con dition required by law in that the approach to the crossing was not level on either side for a distance of thirty feet.
The rule is that one about to cross a railroad track must be diligent to avoid a collision with a moving railroad train. When the plaintiff saw that here were double tracks, she must have realized that a train might be passing on each track, and should have waited for the train she saw to have passed a sufficient distance to enable her to see that no train was approaching on the east track; that she did not do. She started to cross the tracks when the passing train was only from 50 to 100 feet away. The passing train then necessarily obstructed her view of the east track. She was negligent in not waiting longer, and that negligence prevents her recovery.
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover for professional services rendered by Charles Arthur Ellis, a physician, to a brother of the defendant. The plaintiff alleged that the defendant contracted with the plaintiff for the rendition of the services and agreed to pay for them. The defendant denied that the debt was hers, denied that she contracted for the services, denied that she agreed to pay for the services, and averred that Charles Arthur Ellis had been paid. The trial was by jury, and a verdict was returned in favor of the defendant on conflicting evidence. Judgment was rendered for the' defendant, and the plaintiff appeals.
The first complaint is that “the court erred in overruling appellant’s objection to introduction of part of letter, exhibit —, advising the attorney for appellant to compromise with appellee.” We quote from the plaintiff’s abstract:
“Miss Betty Penney, the defendant, testified orally. ... In rebuttal of her testimony and for the purpose only of fixing the time when demand was made upon her by plaintiff’s attorney in this case, the following letter was offered and the part with reference to the date was read to the jury.”
It appears that the letter was one written by the Denver attorney for the administratrix, the plaintiff, to John R. Parsons, her attorney in this action, and contained authority for Parsons to compromise the plaintiff’s claim, which was for $200. On the argument to the jury, counsel for the defendant commented on the authority to compromise contained in the letter. The plaintiff then requested the court to withdraw that part of the letter from the consideration of the jury. That request was denied. The court did not commit reversible error against the plaintiff in admitting the letter in evidence when offered by the plaintiff, nor in refusing to withdraw part of it from the consideration of the jury after it had been introduced by the plaintiff. If the plaintiff desired that the letter be not put in evidence she should not have offered it. If she desired that part be introduced and part excluded she should have specifically so stated. The plaintiff cannot complain of what she did on the trial.
The. plaintiff argues that “the court erred in instructing the jury orally over the objection of the appellant and after being requested by appellant to instruct the jury in writing.” Plaintiff cites part of the subdivision of section 60-2909 of the Revised Statutes, which reads as follows:
“The court shall give general instructions to the jury which shall be in writing and be numbered and signed by the judge if required by either party.”
We quote from the abstract of the appellant as follows:
“Immediately following the resting of all sides, the following matters took place:
“By the Court: The issues are simple in this case and I am going to instruct you orally.
“By Mr. Parsons : You will reduce them to writing afterwards?
“By the Court: Not necessarily; the reporter may take them down. I don’t know whether there will be any occasion later.or not. It depends upon whether the jury forgets what is told them or not.”
There does not appear to have been any other request for written ■ instructions. This did not amount to a request for written instructions; it was a request to have the instructions reduced to writing after they had been given. If the plaintiff desired to predicate error on the failure of the court to give written instructions, she should have specifically and unqualifiedly requested that the instructions be given to the jury in writing, not that the instructions be reduced to writing after they had been given to the jury.
The plaintiff urges that the court erred in refusing to grant a new trial and in the instructions to the jury. These matters have been carefully examined, and they are without substantial merit.
The judgment is affirmed.. | [
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The opinion of the court was delivered by
Busch, J.:
Defendant was convicted of robbery in the first degree, and appeals.
Defendant, who was a bootlegger of Kansas City, Kan., became associated with one of the organized bands of outlaws which infested Kansas City, Kan., and Kansas City, Mo., in the spring and summer of 1922. On July '22, Joe T. Howard’s cigar store was robbed of $2,072 by three men, who escaped from the scene of the crime in an automobile driven by a fourth man. The robbery was executed according to plans laid at defendant’s home. Defendant had possession for some purpose of a Buick automobile, which was a stolen car. On the morning of July 22 he removed the license plate from the car, substituted for it another' bearing the number 6500, and drove to a hotel in Kansas City, Mo., where he picked up one of the group. The other two were in a Ford sedan, and the two cars were driven to Thirteenth and Penn streets. There the two men in the Ford car left it, got into Welch’s car, and Welch drove to the scene of the robbery. The persons in the car were defendant Welch, George Willis, Floyd Dudley, and Harry Downs. At Thirteenth and Penn streets, Willis was recognized by A. S. Green, who also noted the license number 6500 on the Buick car. The Ford sedan was left in front of Greenbhum Brothers’ store, and J. W. Grady, who worked in the store, made a memorandum of the license number on the sedan. His attention was called to it by Green. On the way to Howard’s store, defendant produced two .38-caliber pistols from under the seat, one of which was given to Willis and the other to Dudley. When they reached the vicinity of Howard’s store, defendant stopped the car and remained in it, keeping the engine running, while the others went into the store and committed the robbery. While the robbery was in progress, a pistol and holster were taken from Willie Roher, who was in the store. Afterwards, when Willis’ room was searched, the pistol was found in his possession. After completing the robbery, Willis, Dudley and Downs returned to the car, and as defendant drove it away some shots were fired. A bullet struck one of the rear tires of the automobile, but the tire did not blow out until Welch’s garage was reached. Another bullet penetrated the back of the car. The course of the fleeing car was down Adams street. When it turned west on Osage avenue, which begins at Adams street, J. Kennedy, an employee of Wilson & Company, observed the car, which was traveling at a speed of thirty-five miles per hour. On learning of the robbery, Kennedy reported his observation of the car to the chief of police, and he afterwards identified Willis and defendant as occupants' of the car. Following a circuitous route, defendant drove to his own home. There the money was divided. Two hundred dollars (ten per cent) was taken out and given to Willis for John M. Hagan, of Kansas City, Mo., the reputed “brains” of the gang. Welch was allowed a sum for repair of his car, and received approximately $500. Fred Stroth and Earl James came to Welch’s house in a Cadillac car, and Willis, Dudley and Downs returned to Kansas City, Mó., with them. Defendant owned a Hudson car, which he had left with F. S. Beltz, who conducted an automobile repair shop. Defendant came for his Hudson car in a Buick car, which he left with Beltz. There was a bullet hole in the back of the car, plugged with a bolt. The police subsequently took possession of the Buick car. Willis and Dudley confessed, and, as witnesses for the state, told the whole story of the robbery at the trial.
Because of the abbreviated character of the abstract, the foregoing account may not be strictly accurate in some minor details, but it fairly represents the evidence on which the conviction rests. The defense was an alibi. Defendant slept until nearly noon the day of the robbery. The afternoon was to be devoted to a fishing trip to Bean lake with two men who came to defendant’s house about 1:30 p. m., stayed about two hours, and went away without going fishing. The record does not disclose what becameof the -bait for the fishing trip.
For a considerable period of time, banks, business houses, and individuals of the city were preyed upon by the Hagan and other bandits almost at will. Before their depredations were checked, they had killed four men and had committed twenty-one robberies, netting approximately $100,000. The community became thoroughly aroused, and after a raid in which two police officers were killed, the president of the chamber of commerce called a mass meeting, which was attended by seven or eight hundred persons. The situation was fully discussed, and a resolution was adopted looking to organized effort to aid the city and county officers in their endeavor to run down the outlaws and bring them to justice. The Kansas City Kansan, the daily newspaper of the city, discussed the condition of affairs freely and vigorously in editorials, published interviews with citizens, and gave news accounts of occurrences. The arrest of the participants in the Howard robbery marked the beginning of the end of the reign of terror. The fact that Willis and Dudley confessed, that Welch’s home had been searched and forged government labels for bonded whisky had been found there, and other activities of officials and persons acting with them in respect to Welch’s implication in the Howard robbery, were published.
Defendant filed a motion for change of venue, supported by his own affidavit only. Attached to the motion were copies of the newspaper articles and interviews referred to, the call for the public meeting, and a report of its proceedings. The affidavit concluded as follows:
“That by reason of all the facts heretofore set out, the inhabitants of Kansas City and Wyandotte county, Kansas, have become and still are so prejudiced against your petitioner that a fair trial upon the charges filed against him cannot be had in said city and county, and that a change of venue should be granted to your petitioner to some other county than Wyandotte county.”
The state filed .no counter affidavits, and the motion was denied.
The statute which permits application to be made for change of venue on the ground the minds of the inhabitants of the county are so prejudiced against defendant that a fair trial cannot be had in the county, requires the petition to set forth the facts on which the application is based. (R. S. 62-1321.) It is not enough that the petition state prejudice exists and a fair trial cannot be had. Specific facts and circumstances showing prejudice must be stated, and not conclusions. (State v. Knadler, 40 Kan. 359, 19 Pac. 923.) The portion of defendant’s affidavit which has been .quoted was a statement of his inference from the matter contained in the affidavit, and sufficiency of the application depended on the facts. (State v. Bassnett, 80 Kan. 392, 395, 102 Pac. 461.) The prejudice which will authorize a change of venue is not general prejudice against classes of conduct or classes of persons. It is prejudice against the defend ant to be tried, and it is not enough that prejudice exists against him. The prejudice must pervade the minds of the inhabitants of the county to such an extent a fair trial cannot be had in the county. (R. S. 62-1318; State v. Furbeck, 29 Kan. 532; State v. Parmenter, 70 Kan. 513, 515, 79 Pac. 123.) Tested by these rules, the application for change of venue was insufficient.
That the community had become thoroughly aroused, and had resolved to strengthen and supplement the forces of law and order and pit them in a square-toed fashion against the forces of lawlessness, was fully disclosed. That, however, did not authorize a change of venue. If so, by attaching books, tracts, newspaper and magazine articles, sermons, speeches, addresses, crime surveys, reports of investigating committees, and other matter to his affidavit, defendant might have shown it would be difficult for him to receive a fair trial anywhere in the United States. Some indiscreet utterances respecting measures for bringing security to the city were disclosed in the newspaper interviews, but they did not represent public sentiment. The mass meeting was an admirable civic affair, very earnest and very determined, but wholly restrained in deliberation and action within the bounds of legality and propriety. Some of the newspaper articles distributed vituperation about equally between thugs, lawyers, and courts which “adjust crime so that it is within the law and make immune the criminal,” but the fury of the articles was not catching. There was no demonstration of any kind against Welch or any of his accomplices, when they were arrested or afterwards. There is no contention defendant did not have a fair, orderly, uncoerced preliminary examination. His counsel did not profess personal embarrassment, much less peril, in undertaking his defense, and the district court of Wyandotte county 'was not able to conceive that it was the galled jade which was expected to wince. Newspaper articles which reported results -of police and other activity, and undertook to detail defendant’s connection with the Howard robbery, were of the ordinary kind, and would not disqualify a juror whose impressions respecting defendant’s guilt were derived from that source. Previous to the Howard robbery,defendant had not been suspected of brigandage. After his arrest there were no vilifying or inflammatory denunciations of him, and no effort was made to focus on him the indignation of the long-suffering community, or to translate its execration of the crimes which had been committed into personal antagonism to him. There could be no dispute that Howard had been robbed by three men, who were driven from the scene of the robbery by a fourth man. The only material issue in the case was whether defendant was a member of the gang, and the application' for change of venue disclosed nothing which indicated that a jury could not be selected from the body of the county which would try that issue dispassionately.
There is no immediate appeal from an order denying a change of venue. The order is reviewable only on appeal from conviction, and propriety of the order must finally be judged in the light of the proceeding resulting in conviction. A ruling may not be reversed merely to gratify a sentiment or to uphold a principle. The defendant must have suffered prejudice to his substantial rights. In this state, the readiness with which a qualified trial jury is obtained is pertinent to that subject. (State v. Parmenter, 70 Kan. 513, 515, 79 Pac. 123.) Defendant makes no complaint of difficulty in selecting a satisfactory jury. He does not suggest that, in examining jurors respecting their qualifications to sit, he found them to be in an excited state of mind, or so imbued with horror at what had been going on, or with detestation of crimes of violence, that wild conduct on their part was to be apprehended. He does not complain that any juror challenged for cause was permitted to remain on the jury. Pie does not show that he was obliged to exhaust his peremptory challenges. So far as the record discloses, no suspicion of prejudice against defendant entered the jury box when the jury was sworn, and there is no contention that an indignant populace invaded the precincts of the trial and communicated the contagion of its own mob passion to the panel. The statute provides that a new trial may be granted when a verdict is the result of passion and prejudice on the part of. the jury. Refusal of the court to grant a new trial on that ground is not urged as error in this appeal. The result is, defendant’s prediction that he could not have a fair trial failed, and the order of the district court denying the motion to change the venue of the trial is approved on two grounds: The application did not state facts sufficient to warrant the change, and the fact that a fair trial could be had in the county was demonstrated by the event.
Defendant’s counsel adopted the practice of examining each juror at length on all the stock instructions to jurors in criminal cases and others which defendant conceived might be applicable to the case. The method of examination was a time-killing process, and the court requested counsel to facilitate progress of the trial by propounding questions of a general nature to all the jurors, or to groups of jurors, or at least to more than one juror at a time. Counsel made a fuss about it, and the court admonished him to proceed in accordance with the suggestion, at the same time directing the jury that they were not concerned with the matter. The court’s suggestion was reasonable and proper, and the remarks to counsel were appropriate to the occasion.
There is nothing else in the cáse which deserves formal discussion. The information was sufficient, the motion for continuance was properly denied, and the opening statement to the jury for the 'prosecution was not too broad or otherwise improper. The subject of conspiracy was not involved in the case at any stage or in any form. Defendant’s alibi witnesses were properly interrogated with respect to their relation to defendant’s bootlegging business as affecting their credibility. Disclosure that.defendant was a bootlegger before he put his character in issue could not be prejudicial, since his attorney, in opening his case to the jury, exploited the fact for the purpose of the defense. The state did not depend on circumstantial evidence to establish defendant’s guilt; the circumstantial evidence introduced was corroborative only, and an instruction applicable to a case in which guilt must be established by circumstantial evidence, if at all, was not required. One principal may be convicted on the uncorroborated testimony of another principal, the testimony being sufficient to establish guilt. The credit to be given the accomplice is a matter for the jury. (State v. McDonald, 107 Kan. 568, 193 Pac. 179; State v. McKimson, 119 Kan. 658, 240 Pac. 567.) A sufficient monitory instruction relating to scrutiny of the testimony of accomplices was given (State v. Vandeveer, 119 Kan. 674, 240 Pac. 407), and the jury were otherwise well instructed on the law applicable to the case. Other assignments of error are trivial or ill-founded, defendant’s guilt was fully proved, and the motion for a new trial was properly denied.
Willis was a narcotic addict. After Welch’s motion for a new trial had been denied and his appeal had been perfected, Willis made an affidavit in which he repudiated the testimony he had given at Welch’s trial, and gave an account of how it was procured. Mr. J. H. Brady was employed by the Clearing House Association of Kansas City to assist in bringing to an end the banditry which was rampant in the city during the period which included the Howard robbery. Mr. Brady had relations with Willis and Dudley in connection with their confessions and their appearance as witnesses for the state at Welch’s trial. The county attorney practically committed prosecution of the robbery cases to his deputy and Mr. Brady. At Willis’ trial and at the trial of one James Majors, Mr. Brady’s relations with Willis and Dudley were fully disclosed. Willis’ affidavit and the proceedings just referred to have been abstracted and have been presented to the court, on the theory the court may avail itself of authentic evidence outside the record in order to prevent a miscarriage of justice. As a matter of favor to defendant, the court has perused the matter thus brought before it, and its conclusion is Willis’ affidavit was false and the probability he testified truthfully at Welch’s trial is increased to approximate certainty. The court further concludes that Mr. Brady’s conduct was in full accord with correct ethical and professional standards, and that he rendered invaluable service to his employer and to the public.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This action arose over the construction of a contract whereby plaintiff sold and assigned an oil and gas lease to the defendant corporation.
On October 23,1922, G. L. Ramsey and certain other owners and tenants in common of 160 acres of Butler county land (S% NE1/^ and S% SE1^, 1-24-5 east) executed a lease of it to one S. W. Preston for the purpose of mining and operating for oil and gas. The lease term was for five years and as long thereafter as oil or gas should be produced on the premises.
One dollar was paid by the lessee, and .further additional considerations were specified, viz.:
“This lease is given for a well to be started on. or before October 23, 1922, in the southwest corner of the northwest quarter of section 6, township 24, range 6 east, and containing 160 acres, more or less.” [This proposed well was to be drilled on land near by but not included in this lease.]
“In consideration of the premises the said lessee covenants and agrees:
“1st. To deliver to the credit of lessor, free of cost, in the pipe line'to which he may connect his wells, the equal one-eighth part of all oil produced and saved from said leased premises.
• “2d. To pay the lessor one-eighth (%) of all gas, the gas from each well where gas only is found, while the same is being used off the premises.
“If no well be commenced on said land on or before the 23d day of October, 1923, this lease shall terminate as- to both parties, unless the lessee on, or before that date shall pay or tender to the lessor, or to the lessor’s credit in the Butler County State Bank . . . the sum of one hundred sixty ($160) dollars, which sum shall operate as a rental and cover the privilege of deferring the commencement of a well for 12 months from said dale. In like manner and upon like payments or tenders the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privileges granted to the date when said first rental is payable as aforesaid, but also the lessee’s option of extending that period as aforesaid, and any and all other rights conferred.” [Italics ours.]
The lease also provided for subdivision into parcels and their sale and assignment, and provided for the payment of pro rata rentals due the lessor thereunder.
The lessee, Preston, assigned his rights in eighty acres of the leased premises to plaintiff W. H. Matthews; and on December 1, 1922, Matthews in turn sold and assigned his interest therein to the Ramsey-Lloyd Oil Company, a corporation. The consideration for the sale and assignment of the lease-from Matthews was as follows:
“Second party agrees to pay upon delivery of assignment of said above-described lease the sum of 112,000 cash and to pay a further sum of $30,000 out of one-half of the seven-eighths (%) of first oil produced from said described property. The last condition to be made a part of said assignment.”
The assignment itself in part recited:
“Now, therefore, for and in consideration of .one dollar (and other good and valuable considerations), the receipt of which is hereby acknowledged, the undersigned, the present owner of the said lease and all rights thereunder or incident thereto, does hereby bargain, sell, transfer, assign and convey unto The Ramsey-Lloyd Oil Company all of his right, title and interest of the original lease and present owner in and'to the said lease and rights thereunder in so far as it covers the . . . [80 acres described]; as a further consideration said first party is to be paid $30,000 out of one-half of the seven-eighths of first oil produced under said lease. . . .
“(Signed) W. H. Matthews.”
The property was hot developed for oil or gas. One oil well of fair capacity was developed on other property in the vicinity, and several dry holes were drilled near by. In 1923, the Ramsey-Lloyd Oil Company was dissolved by resolution of its stockholders and by forfeiture or surrender of its charter; and its affairs (other than this matter in controversy) were wound up and its assets sold and the proceeds distributed among the stockholders. G. L. Ramsey purchased the lease.
On the assumption that the contract of sale and assignment of the lease by plaintiff to the Ramsey-Lloyd Oil Company required that company to prospect for and develop oil on this eighty acres in sufficient quantities so that out of one-half of seven-eighths of such production a fund would be created out of which $30,000 might be available to pay the plaintiff, and that the failure of the corporation to prospect for or develop oil on the leased property, together with the dissolution of the corporation and the sale of the lease to G. L. Ramsey, matured and perfected an unqualified obligation to pay plaintiff the sum of $30,000, this action was begun.
Plaintiff’s amended petition and exhibits, together with a motion and order to substitute as defendants the last board of directors and ear officio trustees of the defunct corporation, and plaintiff’s supplemental petition, developed the facts upon which plaintiff relied for recovery.
Defendants’ demurrer to plaintiff’s petition was overruled, and they answered admitting most of plaintiff’s material allegations, but denying their legal effect and denying liability for $30,000 or any other sum.
The parties adduced considerable evidence about which there was little dispute. It was shown that one oil well near by on adjacent property east of the leased premises had been developed in December, 1922, but it was not very profitable. It cost $17,000; its production proceeds over royalty for 1923 were $20,059.99; its expense of operation, taxes, etc., was not shown, and its production was diminishing. On the northwest, south, and east of that one well, three dry holes had been drilled; at greater distances other dry holes had resulted from drilling -thereabout, and geologists and oil producers and explorers of experience testified that in their opinion the incurring of further expense in drilling in that locality would be ill-advised and likely to be unprofitable.
Judgment was entered for defendants.
Plaintiff assigns several errors, but the propriety of the judgment entered below chiefly depends upon the proper construction ■of the contract under which plaintiff assigned his interest in the lease to the Ramsey-Lloyd Oil Company.
Just what was the nature of the contract between Matthews and the Ramsey-Lloyd Oil Company? Was it anything more than an ordinary transaction of bargain and salé whereby the ownership of an oil and gas lease passed by assignment from assignor to assignee? The stipulated consideration was the substantial one of $12,000 in ■cash, together with the reserved condition that the assignor should •receive a sum up to $30,000 out of whatever oil might be produced ■on the leased premises. There was no specific promise on the part of the Ramsey-Lloyd Oil Company that it was to drill for oil on the premises, and the circumstances of the sale and assignment were not fairly susceptible of an interpretation that plaintiff’s ¡assignee made any implied covenant to drill for oil. The rights and ■duties of the holder of the lease were specifically defined by the .lease itself. Preston, the original lessee, was not required to drill. He could avoid that expense and yet keep the lease alive by paying a dollar per acre per annum. When plaintiff by assignment acquired Preston’s interest in the lease, his rights and duties were the same as those of Preston. Plaintiff was not required to drill; he-could keep the lease alive by paying $80 per annum. And this court can perceive no added or different obligation to prospect and develop for oil devolving upon the Ramsey-Lloyd Oil Company as owner of the lease than that which attached to its ownership when it belonged to Preston or when it belonged to plaintiff. There is a seeming lack of logic or of good conscience in the attitude of plaintiff. In effect, he says to his vendee: “I sold you an oil lease which by its terms gave you the option to defer development on payment of a dollar an acre per annum, but by your bargain with me, in which you paid me $12,000 in cash and promised to give me $30,000 worth of oil out of the first production from-that lease, the stipulation in the lease itself which permitted you as my successor in title to defer development didn’t mean anything. That was a highly advantageous clause in the lease when I owned it, but it became a delusion and a snare when you acquired it.”
Plaintiff presses upon our attention the rule of law that where there is a contract to pay a consideration out of a particular fund, the obligor is under an implied duty to take the proper steps to cause such fund to be created. But here the main consideration was paid in cash, $12,000; and now to hold that the assignee took the lease subject to an implied duty to drill and develop the property, would render nugatory one of the most valuable privileges the assignee paid its money for — that of delaying development by the payment of. an annual rental of $80.
Since the lease which was the subject of sale and assignment between these litigants contained an express stipulation covering the matter of delay in development by payment of a stipulated annual rental, it would be peculiarly unjust to read into the contract of .assignment an implied covenant that the new assignee of the lease took it under an obligation vastly more arduous than any under which it had been held by the original lessee or by the plaintiff in this action. This conclusion was reached by the Texas court of civil appeals in the analogous case of Greenwood & Tyrrell v. Helm, 264 S. W. 221, where one Pettit had obtained an oil and gas lease on thirty-two acres. Pettit assigned the lease to Helm, and Helm in turn sold and assigned it to Greenwood & Tyrrell for a considera tion of $16,000 in cash, and the further consideration of $3,200 to be paid out of the first oil produced on the lease, and the still further consideration of one-sixteenth of whatever oil or gas might be produced or saved from the property. A number of dry holes were drilled on adjacent and encircling property which virtually condemned the land in question as unproductive territory, and Greenwood & Tyrrell did no drilling, and of course they did not pay the $3,200 which was to be realized out of the first oil produced on the leased premises; so on the assumption that their failure to drill matured their obligation, Helm sued for that amount. The court of appeals ruled against him, pointing out that the contract was quite different from one where the only substantial consideration for the lease or its assignment was to be realized out of a fund which was to be created, that the substantial consideration was the $16,000 which Helm had received from defendants. The court said:
“Nor can any such implication arise from the contract itself, as the natural and reasonable result of the language used therein. . . . The original lessee did not unconditionally obligate himself to drill; he paid a valuable consideration to be relieved of that very obligation, and fbr the privilege of himself determining from subsequent conditions whether to hazard further large sums of money in developing the land upon the chance of getting oil. It was this very option that appellee sold to appellants, who by accepting it assumed the identical obligations and acquired the identical benefits imposed upon or accruing to- the original lessee, and passed on to them by appellee. It is not conceivable, certainly it is not reasonable or just to assume, that appellants, after paying a relatively enormous sum for the pure option, would in the same transaction surrender that option and asume in lieu thereof a specific and unconditional obligation to expend further enormous sums, regardless of the probability of realizing any profits out of the undertaking. No such obligation being expressed, neither reason nor justice requires, nor will they permit; such implication to be read into the contract of assignment.” (p. 223.)
Appellant directs our attention to an earlier case in the same court, Empire Gas & Fuel Co. v. Pendar, 244 S. W. 184, where the lessee had unqualifiedly bound itself to commence drilling within sixty days, and agreed that if the first boring should turn out to be a dry hole another well should be commenced within eighty days, and so on, in continuous drilling, one hole after another “until such time as. the leased premises shall have been thoroughly developed for oil and gas. If oil and gas is found in one or more wells upon the leased premises the lessee agrees thereafter to operate the same with diligence.” The consideration for that lease was a specified royalty and $60,000 to be paid thus: $5,000 to be paid in cash on approval of the title by the lessee’s attorneys; $25,000 to be paid in four installments evidenced by notes maturing seriatim six months apart, and $30,000 in oil “to be produced from the leased premises by the lessee if the same is so produced.” The lessee never paid any part of the stipulated consideration and did no drilling. Plaintiff sued and recovered the full amount of the consideration. Touching that part of the contract which conditionally obligated the lessee to pay $30,000, the court said:
“Was the plaintiff entitled to judgment for the $30,000 which defendant had by the terms of the contract agreed to pay in oil ‘if oil should be produced from the leased premises’ by defendant, upon a showing that- defendant had refused and was still refusing to recognize the contract and to explore for the oil on the leased land as it had obligated itself to do? This question, we think, should be answered in the affirmative. ... In the specific case, appellant agreed to drill upon and develop the leased premises for the production of oil. Its obligation to that effect was not merely implied, but was express and definite.” (p. 191.)
In Greenwood & Tyrell v. Helm, supra, the same learned court of appeals discovered no analogy worth while to discuss between it and Empire Gas & Fuel Co. v. Pendar, supra, which it had decided two years before; and still more dim is any analogy between the Pendar case and the one which now concerns us. In the Pendar case there was a positive agreement to drill, and to keep on drilling one hole after another until the property was fully developed. In the present case drilling was expressly excused on the payment of $80 per annum, and that was one of the privileges plaintiff’s assignee bought and paid for.
We have also carefully noted another case pressed on our attention by appellant, Pritchard v. McLeod, 205 Fed. 24, which space forbids us to discuss further than to say that while it is an instructive case and well decided it is fundamentally different in material respects from the one under present review.
This conclusion virtually disposes of this appeal. The fact that the Ramsey-Lloyd Oil Company has been dissolved is immaterial. The lease was not assigned by plaintiff with any restrictions upon its subsequent alienation. Nor is it material that G. L. Ramsey, part owner of the fee, has acquired the lease. If oil is developed on this property, the interest in the first production, up to the sum of $30,000 which plaintiff reserved to himself when he sold the lease, can readily be protected either at law or in equity so far as Ram sey’s dual interest as part lessor-owner and as assignee of the lease is-concerned. Equity would not countenance a merger of interests by Ramsey to the prejudice of plaintiff. (See Heston v. Finley, 118 Kan. 717, 723, and citations, 236 Pac. 841.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.;
The defendant was convicted of two offenses — being drunk and intoxicated on a public highway, and operating an auto mobile on a public highway while in a drunken and intoxicated condition.
A jury was waived and counsel for the state and for the defendant submitted the cause to the trial court upon an agreed statement of facts, which in part reads:
“That at about 4:30 a. m. on the 9th day of August, 1925, Russell McLaughlin, the defendant in this case, was arrested by Officer P. H. Rouse, of Independence, and the sheriff of Montgomery county, on Railroad street between Ninth and Tenth streets in the city of Independence, Kansas. That immediately prior to his arrest he had been drinking intoxicating liquor and drove his automobile along Railroad street between Ninth and Tenth streets and ran into the curb or gutter and wrecked his car. That he continued to remain there in his wrecked car on Railroad street, which is a public thoroughfare, for about a half hour, when the officers arrived and defendant was arrested. At the time of his arrest he was intoxicated to such an extent that it was necessary for the officers to arouse him and assist him out of the car and into their car and assist him up to the city jail of Independence, Kansas.”
Defendant filed a motion requiring the state to elect whether it would stand on the count charging him with the offense of being drunk on a public highway or on the count charging defendant with the offense of operating an automobile upon a public highway while in a drunken and intoxicated condition. This record recited:
"The Court: The motion is to require the county attorney to elect upon which count he stands. The motion will be overruled.”
“[Counsel for Defendant] : Now at this time the defendant requests the court to make a finding on the first count before he finds on the second.
“The Court: The court will find the defendant guilty upon the first count, being intoxicated in a public place in violation of law.”
“[Counsel for Defendant] : Comes now the defendant, Russell McLaughlin, having been convicted under the first count and now moves the court to dismiss the second count of the information herein, and dismiss and discharge this defendant so far as the second count is concerned, because a conviction under the first count is a bar to a conviction under the second count, and that the defendant has been in former jeopardy in this case; that being drunk at the same time and place is an essential ingredient for other offenses charged.
“The Court : The motion will be overruled. The court finds the defendant, Russell McLaughlin, guilty on the second count, of driving a car immediately after he had been drinking intoxicating liquor, all in the manner and form charged in the second count of the information.”
Judgment on each count was entered and sentences imposed accordingly.
Defendant appeals, contending that his conviction and sentence on both counts constitute a breach of his constitutional right not to be placed in jeopardy twice nor twice subjected to punishment for one and the same offense.
The statute defining the offense involved in the first count charged against defendant reads:
“If any person shall be drunk in any highway, street, or in any public place or building, or if any person shall be drunk in his own house, or any private building or place, disturbing his family or others, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined in any sum not exceeding twenty-five dollars, or by imprisonment in the county jail for a period not exceeding thirty days.” (R. S. 21-2128.)
The offense involved in the second count is thus defined:
“It shall be unlawful for any person under the influence of intoxicating liquor or any exhilarating- or stupefying drug to drive, operate or have charge of the power or guidance of any automobile, motorcycle or any motor vehicle propelled by other than muscular power, upon any public road, highway, street, avenue, driveway or alley within the state of Kansas. And that the taking or use of any intoxicating liquor or exhilarating or stupefying drug by the person driving, operating or in charge of the power and guidance of any automobile, motorcycle, or other vehicle or while operating such vehicle propelled by other than muscular power, within a reasonable time prior to taking charge or guidance of such vehicle shall be construed as prima facie evidence that such person is under the influence thereof.” (R. S. 21-2160.)
Defendant’s point is simply this: Being drunk on a public highway was an essential element of the offense of driving an automobile on a public highway while drunk, and that two distinct penal offenses cannot be carved out of that single and identical delinquency.
The authorities seem to favor defendant’s contention. A prosecution and conviction or acquittal for any part of a single offense bars further prosecution for any act comprising the whole or any part of defendant’s misconduct pertaining to that identical delinquency. Thus, in State v. Colgate, 31 Kan. 511, 3 Pac. 346, a defendant was prosecuted and acquitted of the charge of setting fire to and burning a grist mill, and afterwards prosecuted on the charge of setting fire to and burning the books of account, it being the same identical fire involved in the first prosecution. It was held that defendant’s acquittal .of the charge of setting fire to and burning the mill was a good defense to the charge of setting fire to and burning the books of account pertaining to the business of the mill. In the court’s opinion Mr. Justice Valentine reviewed many cases from other jurisdictions, and said:
“And upon general principles a single offense cannot be split into separate parts, and the supposed offender be prosecuted for each of such separate parts, although each part may of itself constitute a separate offense. If the offender be prosecuted for one part, that ends the prosecution for that offense, provided, such part of itself constitutes an offense for which a conviction can be had. And generally we would think that the commission of a single wrongful act can furnish the subject matter or the foundation of only’one criminal prosecution.” (p. 515.)
In State v. Chinault, 55 Kan. 326, 40 Pac. 662, an information was filed in the district court of Wyandotte county charging defendant with the offense of assault with intent to kill. While that case was pending and undetermined, the defendant was prosecuted and convicted in the Wyandotte court of common pleas of the offense of assault with intent to rob. In the latter case the defendant had filed a plea in abatement, setting up the undisputed fact that the identical delinquency was the basis of the action pending against him in the district court. This court reversed the judgment of conviction. In the opinion it was said:
“Both informations charge offenses under the same section of the statutes, viz.: Section 38 of the act regulating crimes and punishments. Both informations refer to the same acts, the only difference being that a different criminal purpose is attributed to the defendant. We think under this section the substantive offense is the assault. The intent with which it was committed characterizes it and determines its degree oí criminality. Only one prosecution can be maintained under this section for the same assault, whatever the purpose of the defendant may have been.” (p. 328.)
In 8 R. C. L. 145-147 the rule, well fortified with citations, is thus stated and illustrated:
Ҥ 130. A prosecution for any part of a single crime bars any further, prosecution based on the whole or a part of the same crime. . . .
“§ 131. Where a person is brought to trial and jeopardy has attached he cannot be tried thereafter for a greater offense arising out of the same criminal act. . . . Thus a person who is brought to trial on a charge of assault and battery cannot be tried thereafter on a charge of assault with intent to commit some other crime; and it has been held that a verdict of assault and battery on an indictment for stabbing is a bar to another indictment for stabbing, as on an indictment for the greater offense the verdict may be for the lesser. Likewise as an assault is an absolutely necessary element in, and essential to, the crime of assault with intent to commit a rape, when a man has been tried for the offense of assault he may interpose the plea of former jeopardy as a complete defense to a subsequent indictment for the crime of assault with intent to commit a rape, where such indictment is founded on the same act.”
In 16 C. J. 270, 271, it is said:
“Where one act constitutes several crimes there may be a separate prosecution for each crime; but the state cannot split up a single crime and prosecute it in parts. A prosecution for any part of a single crime bars any further prosecution based upon the whole or a part of the same crime. . . .
“The rule that the doctrine applies only where the two prosecutions are for the same crime must be taken with this qualification, that where one crime is included in and forms a necessary part of another and is but a different degree of the same offense, and where on a prosecution for the higher crime a conviction may be had for the lower, then a conviction or an acquittal of the higher will bar a prosecution for the lower, or for any crime of which the lower is an essential ingredient.
“There are some cases that go even farther than is sanctioned by the above rule and hold that where one crime is a mere incident of another a conviction for the greater will bar a prosecution for the lesser, although on the trial for the greater defendant could not have been convicted of the lesser.
“It is also the almost universally accepted' doctrine that an acquittal or a conviction for a minor offense included in a greater will bar a prosecution for the greater, if on an indictment for the greater defendant could be convicted of the lesser. . . .
“One who is convicted of a crime less in degree than the offense for which he is indicted is by implication acquitted of the greater offense and may plead the acquittal as a bar to a consequent indictment for it.”
In the case of In re Nielsen, 131 U. S. 176, 33 L. Ed. 118, it was held that the conviction of the petitioner of the crime of unlawful cohabitation was a bar to his subsequent prosecution for the crime of adultery, committed during the same period, where the adultery charged was an incident and part of the unlawful cohabitation for which he had been convicted.
As was said by Mr. Justice Bradley in the case we have just cited, the law books are full of cases which bear upon this subject, and it would be mere gratuitous pedantry at this time for us to write a dissertation on this subject.
The criminal delinquency of defendant cannot justly or logically be carved into two distinct offenses carrying separate, distinct and successive punishments. Defendant’s criminal conduct of being drunk in a public place was an integral part of the incident of driving his automobile. Being in a public place was not penal; driving an automobile was not penal. The ingredient of drunkenness in a public place was the vital and incriminating element in the constitution of either offense, but that element of drunkenness in public served its purpose and exhausted its potency in one conviction. It could not serve also as an ingredient to accomplish the conviction and punish ment of defendant for another offense without doing violence to the simple facts of the case as well as the important constitutional principle involved therein. (Const. Bill of Rights, § 10.)
In 16 C. J. 264 it is said:
“The term ‘same offense,’ however, does not signify the same offense eo nomine, but the same criminal act, transaction or omission; and it is not essential, to sustain a plea of former jeopardy, that the proofs in the two prosecutions be identical; it is sufficient if an acquittal of the offense charged in the first indictment virtually includes an acquittal of that set forth in the second, however much they may differ in degree. Thus an acquittal on an indictment for murder will be a good bar to an indictment for manslaughter; and e con-verso, an acquittal on an indictment for manslaughter will be a bar to a prosecution for murder. Some courts have greatly expanded the natural and ordinary meaning of the words ‘same offense’ so as to include all lesser degrees that fairly may be included within the major charge.
“Several rules have been laid down by the authorities for determining whether the crimes are identical. . . . The safest general rule is that the two offenses must be in substance precisely the same or of the same nature or of the same species, so that the evidence which proves the one would prove the other; or if this is not the case, then the one crime must be an ingredient of the other.”
The state calls our attention to' two recent cases decided by this court, State v. Ford, 117 Kan. 735, 232 Pac. 1023, and State v. Cassady, ante, p. 331, 246 Pac. 508. They are not in point. In the Ford case we merely held that having unlawful possession of intoxicating liquor is a distinct and not necessarily related offense to that of selling the same liquor. One may sell liquor without having possession of it, and may have unlawful possession of liquor without selling it. (State v. Supancic, 117 Kan. 110, 230 Pac. 306.) But one cannot drive an automobile in a public street in an intoxicated condition without being in an intoxicated condition in that public street. The distinction between the Cassady case and the one at bar is similarly obvious and needs no discussion.
In view of the foregoing it is apparent that the judgment of the district court will have to be reversed. That justice may not eventually miscarry, it seems proper to remand the cause to the district court, with instructions to set aside its judgment on both counts, and to vacate its ruling on defendant's motion to require the county attorney to elect upon which count of the information the state would stand, and to sustain that motion; and for further proceedings consistent herewith.
It is so ordered. | [
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The opinion of the court was delivered by
Dawson, J.:
This is a special proceeding to determine whether an attorney who pleaded guilty to the misdemeanor of having unlawful possession of intoxicating liquor should be disbarred from the practice of law as prescribed by R. S. 7-110.
Section 1 of chapter 64 of the Session Laws of 1913 (R. S. 7-110 et seq.), which is the statute relating to proceedings in disbarment .and reinstatement of attorneys, reads thus:
“That in the case of the conviction of an attorney at law, who has been admitted to the bar of this state, of a felony or of a misdemeanor involving moral turpitude, the clerk of the court in which such conviction is had must within thirty days thereafter, transmit to the supreme court a certified copy of the record of conviction, and the supreme court upon receipt of such record, must enter an order disbarring such attorney. Upon reversal of such conviction, or pardon by the governor, the supreme court shall have the power to vacate such order of disbarment.”
' In belated compliance with this statute, on February 10, 1926, the clerk of the district court of Elk county transmitted to this court a certified copy of a judgment entered against Roy Bieber, an attorney at law of Elk county, which in part reads:
“Now on this 5th day of January, 1925, . . . this cause comes regularly on for trial, plaintiff being present . . .
“Thereupon, defendant is arraigned and waived trial by jury, and pleads guilty to the crime of unlawful possession of intoxicating liquor. . . .
“Thereupon, . . . the said defendant, Roy Bieber, being inquired of by the court if he had any legal cause to show why judgment should not be pronounced against him according to law and failing to show such cause,
“It is therefore by the court considered, ordered and adjudged that the said defendant, Roy Bieber, pay a fine in the sum of one hundred and no/100 ($100) dollars, and is sentenced to the jail of Elk county, Kansas, for a term of six months, and to stay committed to such jail until said fine and costs are paid.
“Whereupon, this matter still comes on for further hearing on the application for parole of said defendant, Roy Bieber, and it is further ordered and adjudged that upon the payment of said fine and costs as aforesaid, the said defendant is paroled to Tom Matthis, city marshal of the city of Moline, Elk county, Kansas, and J. F. Deal, attorney of Grenola, Elk county, Kansas, the condition of said parole being that said defendant shall refrain from any violation of the prohibitory law of the state of Kansas and from any disturbances of the peace and quiet of said city of Moline. Further ordered that said patrons, Tom Matthis and J. F. Deal, shall at once report to this court any infringement of the terms of this parole.”
On receipt of a certified copy of this judgment, this court issued an order to defendant to show cause why an entry of disbarment should not be made against him.
He now answers, pleading that the infraction of law to which he pleaded guilty is not a conviction “of a felony or of a misdemeanor involving moral turpitude” under the statute quoted above. He further answers:
“That if it be the opinion of this court that the illegal possession of intoxicants may or may not, according to the attendant circumstances, become or constitute a misdemeanor involving moral turpitude, then this' answering defendant requires that this court afford to this defendant the opportunity to offer competent evidence to show that there are no attendant circumstances which warrant a conclusion that there is, or was, any moral turpitude involved in said connection.
“If permitted or required to do so, this defendant alleges the facts to be: “(a) That on December 13, 1924, the sheriff of Elk county, Kansas, together with some deputies, came to the home of this defendant and with the permission and consent of the defendant, searched his home.
“(b) That on the back porch of defendant’s home a jug containing a small quantity of intoxicants was found and seized by said officers. . . .
“(d) The defendant will otherwise show that he is, except as herein stated, a law-abiding citizen of Moline, Elk county; Kansas; that he has heretofore and now beam a good name and standing in said community.”
Defendant also directs attention to the fact that there was no compliance with the statute “within thirty days” after judgment upon his plea of guilty; and—
“That no action was taken herein for more than one year after the date of the completion of the final record and that at so late a date it was certified to this coui-t in violation of said statute above referred to and for the purpose of unjustly and illegally harrassing this defendant and to gratify personal animosity.”
A majority of this court declines to permit this proceeding to descend into the realm of issuable facts, and holds that there is nothing to consider except the legal question whether the offense of having unlawful possession of intoxicating liquor is a misdemeanor involving moral turpitude.
In view of the fact that an attorney at law holds a position of a quasi-public character, as an officer of the court and enjoying important privileges not accorded to people in general, it is not unreasonable to exact a higher standard of private conduct from him than that expected from the rank and file of our citizenry. The whole drift of Kansas legislation for over half a century has been to curtail, to restrict, and eventually to eliminate by complete prohibition, the admitted evils of the liquor traffic and all its incidents. The attitude of our people on this matter is well reflected in our successive statutes from the “Act to restrain dram shops and taverns," enacted by the territorial legislature of 1859 (Comp. Laws 1862, ch. 84), to the present time, including the prohibitory amendment to the constitution of 1880, the Murray act of 1881 (Laws 1881, ch.,128) and its many strengthening amendments, also the Mahin act of 1913 requiring importations of liquor by common carriers to be reported.to the county clerk (Laws 1913, ch. 248), and culminating in the “bone-dry” law of 1917 (ch. 215), which made the mere possession of liquors by any person except a druggist a misdemeanor as a first offense (Laws 1917, ch. 215) and a felony for its repetition. (R. S. 21-2146; State v. Berry, 103 Kan. 891, 176 Pac. 649.)
In State v. Macek, 104 Kan. 742, 180 Pac. 985, the progressive quickening of the American people’s moral attitude towards intoxicating liquor and their recognition of its antisocial consequences was noted. This court said:
“We come, then, to the last and only serious question in this lawsuit — the constitutionality oí the ‘bone-dry’ law. Appellant says that it is unconstitutional and void, and cites many a respectable authority and precedent from Blackstone’s time down to yesterday to that effect. But they all stop yesterday ! The times change. Men change, and their opinions change; their notions of right and wrong change. The United States, its government and people, have come a long, long way since the Washingtonian society was organized in 1840 to combat intemperance. A whole generation of Americans has been bom and educated, and has grown to maturity and taken its dominant place in the electorate and in official life, since instruction in the evil effects of intoxicants upon the human system became compulsory in our public schools. (Laws 1885, ch. 169; Gen. Stat. 1915, §9034.) That is the leaven which has leavened the whole lump. ‘Learn young, learn fair,’ is an old adage whose efficacy was never better proved than in the practical annihilation of the liquor traffic by the unnoticed, but persistent, work of the public schools for the last thirty years. While we of an earlier generation continued to argue the pros and cons of the liquor traffic, and the wisdom, or folly, or impossibility, of suppressing the sale and use of intoxicants, a generation arrived which will have none of it; that generation has said so as clearly and emphatically as the American people ever voiced their determination on any subject since 1776. (XVIII amendment to U. S. Const.) And because of the ease with which the law prohibiting sales, etc., of liquor may be violated, and the difficulty of procuring evidence of such violation, the legislature of 1917 (Laws 1917, ch. 215) decreed that the mere possession of intoxicants, or knowingly to permit them to be kept on one’s premises, should be unlawful. Any legislature sincerely determined to suppreáb the sale of liquor and to suppress the keeping of tippling nuisances, would be strongly persuaded to go the final step of forbidding the mere possession of intoxicants; otherwise its laws forbidding liquor sales and the existence of drinking dens would be bound to be somewhat ineffective. The whole matter is one of public policy. And the public policy of a state must largely be shaped by legislation. No federal or state constitutional inhibition was violated in the enactment of the ‘bone-dry’ law, all of yesterday’s juristic dissertations and precedents to the contrary notwithstanding.” (p. 745.)
An attorney at law ought to be a help and not a hindrance in this forward-moving attitude towards the suppression of intoxicants. From the very nature of his profession, a lawyer is a man of consequence in the community. By law an attorney not only enjoys privileges not conferred on all men, but he gets his livelihood from organized society because it and its spokesman, the legislature, believe that he performs a useful function in the maintenance of the social order and in the administration of justice. This function he cannot perform if he himself is a law breaker.
Our present question is not controlled by abstract consideration of whether in the absence of statute the possession of intoxicating liquor would be immoral. That is not the proper test. The expressed sentiment of the people of the state and nation is that for reasons involving moral grounds the use of liquor must be curbed, and to that end various acts in relation to it have been forbidden because to permit them would tend to frustrate the general purpose of constitutional prohibition. In Kansas one of these forbidden acts is the possession of liquor. He who disobeys the statute .n this regard to that extent refuses to abide by the legislative declaration of public policy and in some degree lends himself to its defeat. In this aspect there is no difference in principle between the violation of the provision against the possession of liquor and those forbidding its manufacture or sale. None of them would necessarily be immoral in the absence of written law.
In Crabb v. Board of Dental Examiners, 118 Kan. 513, 235 Pac. 829, this court refused to interfere with the cancellation of the 1 cense of a dentist who had committed a breach of city ordinances in appearing in public places in an intoxicated condition and in driving his automobile in a public street while he was under the influence of liquor. The state board of dental examiners forfeited his l.c.nse on the ground that those delinquencies constituted “dishonorable conduct” under the statute. (R. S. 65-1407.)
This court said:
“We think that drunkenness in the circumstances stated involves dishonorable conduct, and that one who is drunk is unfit for the practice of dentistry. One in that condition has not the normal control of his physical and mental faculties. His judgment and fitness for professional work is not only impaired, but the charges to which the plaintiff has confessed constituted public offenses. (R. S. 21-2128, 21-2160.) The statute requires that any one applying for a license to practice dentistry must show that he is a person of good moral character, implying that only those having that qualification are entitled to practice dentistry. What constitutes good moral character, is not easy to determine or define, but upon general principles one who does that which is forbidden and penalized by the law of the land does not possess the character and fitness required by the statute. Whatever is forbidden by law must for the time being be considered as immoral. (In re Spencer, 22 Fed. Cas. 921; 4 Words and Phrases, 3124; 2 Words and Phrases, 2d series, 759.) In Winslow v. Board of Dental Examiners, 115 Kan. 450, 223 Pac. 308, one having a license practiced dentistry for a corporation under the name of the corporation. While the practice of the profession under a name other than his own is a specific ground for exclusion from the practice, it was held that the plaintiff’s conduct in that respect was ‘gravely reprehensible from the standpoint of morality.’ Likewise it must be held that the admitted violations of law constitute dishonorable conduct within the meaning of the statute under consideration. The legislature appreciated the importance of morality and honor in those practicing dentistry because of the personal contact and close rela tions which necessarily exist between 'the dentist and the patient he treats and upon whom he operates, and manifestly intended to exclude from the profession those who fall below the standard of good moral character and honorable conduct. . . .
“This close relation differs only in degree from that of a physician with his patients, and the good moral character and honorable conduct of the practitioner in either profession are essential qualifications. (Meffert v. Medical Board, 66 Kan. 710, 72 Pac. 247.)” (pp. 515, 516.)
In the case of In re Sanford, 117 Kan. 750, 232 Pac. 1053, where an attorney was convicted under a city ordinance of the offense of having unlawful possession of intoxicating liquor, this court was asked to enter an order of disbarment against him under the statute invoked in the present case. And while the order was not made for obvious reasons stated in the opinion, it was there said:
“The theory of Kansas law is that those admitted to practice law and who continue in it shall be persons who obey the law and maintain a high standard of personal and professional integrity. In a statute relating to the admission of attorneys to practice law, and to the disbarment and suspension of those who may be guilty of misconduct, there is a provision to the effect that upon the conviction of a lawyer of a crime involving moral turpitude and a record of it has been transmitted to this court, it shall enter an order of disbarment. J. F. Sanford, a practicing attorney who had been duly admitted, was charged with having intoxicating liquor in his possession in violation of a city ordinance and was convicted in the police court of the city of Independence. ... It may be noted that the conviction of itself operates as a disbarment, and has been characterized as a legislative rather than a judicial disbarment. (In re Anderson, 101 Kan. 759, 168 Pac. 868.) ” (p. 750.)
In Rudolph v. United States, 6 Fed. (2d.) 487, it was held that there should be no judicial interference with the action of the local governing board of the District of Columbia in discontinuing the pension of a retired policeman who had committed a breach of the national prohibition act. The information had charged him with the unlawful possession and transportation of intoxicating liquors. He pleaded guilty to the charge and was fined $200 and costs and his automobile was forfeited. In part the court said:
“In the court below the case turned entirely on the question of whether or not a first-offense violation of the national prohibition law, of unlawfully having in possession and transporting intoxicating liquors, is a' crime involving moral turpitude. . ¡
“We are not much concerned with the distinction sought to be made between crimes malum in se and those which are merely malum prohibitum. Many things which were not considered criminal in the past have, with the advancement of civilization, been declared such by statute; and the commis sion of the offense, if it involves the violation of a rule of public policy and morals, is such an act as may involve moral turpitude. ■. . . The prohibition movement, however . . . rests upon ^the theory that the use of intoxicating liquors as a beverage is detrimental to the public welfare and the public morals, and this advance step led to the adoption of the eighteenth amendment to the constitution of the United States and the national prohibition act, for its enforcement. . . .
“. . . The traffic in intoxicating liquors has, by fundamental law, been denounced as inherently wrong, a social evil, condemned by every standard of private and public morals.
“There is no hard and fast rule as to what constitutes moral turpitude. It cannot be measured by the nature or character of the offense, unless, of course, it be an offense, inherently criminal, the very commission of which implies a base and depraved nature. The circumstances attendant Upon the commission of the offense usually furnish the best guide. For example, an assault and battery may involve moral turpitude on the part of the assailant in one case and not in another. Intent, malice, knowledge of the gravity of the offense, and the provocation, are all elements to be considered. It may well be that an unsophisticated person could be caught in the act of transporting liquor, in violation of law, under circumstances which would not justify the court in holding that the act involved moral turpitude; but this rule can hardly be applied to a police officer of many years’ experience, sworn to defend and uphold the law. . . .
“At the time plaintiff was convicted of a violation of the prohibition law he was still a member of the police force of the District of Columbia, upon the pay roll of the government, subject, under certain conditions, to be called into service. The act of 1916 provides that ‘any retired member of the police department or fire department of the District of Columbia receiving relief under the provisions of this act may in time of flood, riot, conflagration, during extraordinary assemblages, or unusual emergencies, be called by the commissioners of said district into the service of the department from which he was retired.’ . . .
“When plaintiff entered the public service as a policeman, he took a solemn oath to support and defend the constitution of the United States, and to bear true faith and allegiance to the same. It can. hardly be said that a police officer, charged with the maintenance of the public peace, can be either defending the constitution, or bearing true faith and allegiance thereto, when he is engaged in an open violation of the law. As was said by the court in Young v. Edmunson, 103 Ore. 243, 204 Pac. 619, a disbarment proceeding: ‘To support is to uphold; to maintain. No bootlegger is a supporter of the constitution and laws of the United States and of the state of Oregon. An attorney at law takes an oath to support the constitution and laws of the United States and of this state, and it is made his special duty so to do. He cannot consistently be both attorney at law and bootlegger at one and the same time.’ ” (pp. 487, 488, 489.)
The court holds that the offense perpetrated by Roy Bieber was a misdemeanor involving moral turpitude, and an order disbarring him from the practice of his profession as an attorney must be made in conformity with the statute.
It is so ordered.
Burch, J., dissenting. | [
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The opinion of the court was delivered by
Hopkins, J.:
This controversy involves the validity of the purported last will and testament of James Jenkins, deceased. It was probated July 19, 1923. The action was filed May 15, 1925. On June 11 following plaintiffs filed an amended petition which contained three counts, and on October 2 following by leave of. court filed an amendment to their amended petition. A demurrer to the amendment was sustained, and plaintiffs appeal.
The amendment reads:
“Amendment to Amended Petition.
_ “Come now the plaintiffs and amend the petition herein by leave of court and add the following as an additional cause of action and a fourth count to the amended petition.
“fourth count.
“The plaintiffs refer to the allegations of the first count of the petition, relating to the alleged execution of the last will and testament of James Jenkins, deceased, and make the said allegation a part hereof as if fully rewritten therein. The plaintiffs further allege that the alleged last will and testament, a copy of which is attached to the plaintiff’s petition, is null and void upon its face for the following reasons, to wit:
“1. It violates the law against perpetuities.
“2. It is indefinite, uncertain and the estates therein attempted to be created are so indefinite, uncertain, and so evidently inconsistent with the in tention of the testator that the same are incapable of a reasonable and fair construction.
“3. That the remainders therein attempted to be created are so limited as to be void for remoteness and uncertainty.
“4. The estate attempted to be set apart as a residue and remainder is indefinite and uncertain and it cannot be determined by a fair and reasonable construction of the will when the said remainder or residue will vest or who will be the beneficiary thereof.
, “5. The pretended last will and testament attempted to devise lands to a trustee, whose title is nominal only, and who has no power of disposition or management of such lands and fails to name a beneficiary.
“6. All of the paragraphs of the said pretended will, which attempt to give and devise lands, violates the law against perpetuities, attempts to create a passive trust, is indefinite, remote, uncertain, contingent and contradictory.
“Wherefore, the plaintiffs pray judgment of the court declaring said will null and void for the reasons herein set forth, in addition to the other relief prayed for.”
The defendants demurred because the amendment does not state facts sufficient to constitute a cause of action, because said fourth cause of action alleged in said supplemental petition is barred by the statute of limitations, and plaintiffs have no capacity to set up such alleged cause of action.
The judgment of the trial court does not indicate on which of the three grounds the demurrer was sustained.
The plaintiffs admit that an action to contest a will must be filed within two years after the date of its probate (R. S. 22-223), but contend that the amendment, filed more than two years after probate of the will in this case, only enlarges and amplifies the amended petition which was filed within the two years. We do not so regard it. In our opinion the amendment goes beyond mere amplification of the allegations of the amended petition. Without setting out the lengthy amended petition it is sufficient to say that the amendment states an additional and entirely "new cause of action, and the demurrer thereto was properly sustained.
Other questions urged in the briefs need not be discussed.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Harvey, J.:
This action involves a contest between two claimants for the proceeds of a beneficiary certificate issued by the Modern Woodmen of America to Wesley W. Loveless. The plaintiff is the widow of the insured; the defendant is his daughter by his first wife. The action was tried to a jury, which answered special questions and returned a general verdict for plaintiff. The defendant has appealed.
Mr. Loveless resided for many years in Kansas City, Kan. His business was that of a barber. He owned a shop, which he operated, and at times owned one or two other shops. In April, 1896, he became a member of the Modern Woodmen of America, and a beneficiary certificate in the sum of $2,000 was issued to him in which Bertie Loveless, then his wife, was named beneficiary. After her death, and in 1905, this beneficiary certificate was surrendered and at his request a new one was issued in which his daughter, Grace Loveless, and his son, Teddy Loveless, were named beneficiaries. It seems that this certificate was lost and another issued naming the same beneficiaries in December, 1906. In January, 1917, the son having died, another change was made and a new certificate was issued in which his daughter, Grace Loveless, and his granddaughter, Evelyn Loveless, were the beneficiaries named. In November, 1918, Mr. Loveless married the present plaintiff, and in 1922 he surrendered the beneficiary certificate last mentioned and caused a new one to be issued in which the present plaintiff, Josephine C. Loveless, then his wife, was named beneficiary, and the certificate was left in her keeping. In January, 1924, a sixth beneficiary certificate was issued to him in which his daughter, Grace Ott, the present defendant, was named beneficiary. Mr. Loveless died January 29,1924.
In February, 1924, this action was brought. It was based upon the beneficiary certificate in which plaintiff was named beneficiary, and the Modern Woodmen of America was the sole defendant. The defendant, proceeding under R. S. 60-418, filed an affidavit before answer in which it recited the several beneficiary certificates to Wesley W. Loveless, admitted he was a member in good standing at' the time of his death, that proofs of death had been made, and its liability in the sum of $2,000, but averred that Grace Ott claimed the money under the sixth beneficiary certificate, and, because of the conflicting claims of plaintiff and Grace Ott, asked to be permitted to pay the money into court and be relieved of further liability, and that Grace Ott be made a party defendant. In accordance with a stipulation signed by all the parties the court made an order substituting Grace Ott as defendant, in the place of the Modern Woodmen of America, and that she answer plaintiff's petition, and directing the insurer to pay the money into court to abide the result of the action, and upon so doing to be relieved of further liability. The money was so paid. Grace Ott answered; the plaintiff replied ; there were repeated amendments to pleadings by both parties. These need not be detailed. As finally framed the pleadings may be summarized thus: Plaintiff claimed the sum paid into court by the insurer under the fifth beneficiary certificate issued to W. W. Loveless in 1922, in which she was named beneficiary. Defendant claimed the same sum under the sixth beneficiary certificate issued in January, 1924, in which she was named beneficiary. She further alleged that at the time, or after the sixth beneficiary certificate was issued, she had a talk with her father in which she agreed to care for her father and furnish him a home during his illness and in the event of his death pay out of the proceeds of the beneficiary certificate the expenses of his sickness and burial, so far as his estate was insufficient to pay the same, and that she should have the balance, and that in accordance with such agreement she had obligated herself to pay certain medical and funeral expenses. Plaintiff contended the sixth beneficiary certificate was void and of no effect for three reasons: (1) That she had a vested interest as beneficiary in the fifth beneficiary certificate by reason of a certain agreement between her and the insured at the time that certificate was issued. Because of the by-laws of the insurer, the provisions of the beneficiary certificate, and the statute (R>S. 40-701) prohibiting a beneficiary from having or obtaining a vested interest in such certificate before the, death of the insured, this question and-the evidence offered pertaining thereto, were taken from the jury (except for special findings) , and the jury was instructed not to consider the evidence on this question in reaching the general verdict. (2) Plaintiff denied, under oath, that Mr. Loveless had signed the request for the issuance of the sixth beneficiary certificate, and the affidavit of the loss of the fifth beneficiary certificate, but alleged, in the alternative, that if he did sign such papers, he did so by reason of fraud and undue influence of defendant, Grace Ott, and her husband. Upon this point the trial court held there was.no evidence to go to the jury and did not submit it to them. Since there is no cross appeal here, we need give this question no further attention. (3) That at the time Mr. Loveless signed the request to issue the sixth beneficiary certificate and the affidavit of the loss of the fifth beneficiary certificate (if he did sign them) he lacked mental capacity to do so, being so weakened by disease, both mentally and physically, that he was not able to realize the effect of acts committed by him. Upon this point there was much evidence, and the question was submitted to the jury. The jury found, in answer to special questions, that at the time he signed such instruments he did not know and comprehend the contents of the instruments nor the consequences of his acts, and rendered a general verdict for plaintiff. These findings and verdict were approved by the trial court and judgment rendered accordingly.
Among other things, the evidence showed, in substance, the following: The plaintiff was the widow of Doctor Shiveley, who had died in 1912. At the time of her marriage to Mr. Loveless she resided in the old Shiveley homestead, a large frame residence which had been built several years. She maintained herself, in part at least, by taking in roomers, though she had other income, the extent of which is not disclosed. Upon their marriage they took an apartment near his barber shop, where they lived for a year or so, and thereafter moved to her residence. She was a year or two older than Mr. Loveless, who was 73 at the time of his death. Aside from being nearsighted her health was good, considering her age. The relations between her and her husband were congenial. Early in December, 1923, Mr. Loveless was injured in an automobile collision, but the extent of his injuries was not shown, and perhaps it was of no serious consequence. Soon thereafter he had an attack of the “flu,” which confined him to his home most of the time for two or three weeks. He took treatments from Doctor Miller, a chiropractor, from whom the husband of defendant was taking instructions to become a chiropractic doctor. About December 20 it seems that'Doctor Miller advised that he go to the home of defendant, in another part of the city, to be cared for. Defendant and her husband went to his home to get him. He objected to going and wanted to stay at home, but they got his hat and coat and took him with them. Plaintiff did not seriously object to this, but rather left it to Mr. Loveless. Plaintiff went to see him several times, on which occasions she would have to hire a car or get someone to take her, for she did not feel safe in going among the traffic to the street car. Plaintiff contends that defendant and her husband on the different occasions she was there showed indications that they did not want her present.
After he had been at defendant’s home perhaps two weeks, defendant called the residence of the local Modern Woodman camp clerk and said that Mr. Loveless wanted the papers sent to her house for him for change of beneficiary in his certificate, and to show the loss of the former certificate. The clerk mailed the papers. They lay about the house for ten days or two weeks. The rules of the insurer require that they be signed before a notary public or before the clerk of the local camp. The clerk of the camp was asked to go to defendant’s home and witness the signing of these papers, and he did so on January 12. At that time he, or someone other than Mr. Loveless, filled out the blanks in the papers, and Mr. Loveless signed them in the presence of the camp clerk. On that occasion there was no discussion about making the change. The plaintiff’s name was not mentioned. The camp clerk sent these papers in to the head office by special delivery, a new beneficiary certificate was issued, effective when the conditions thereon named were accepted in writing by the insured. This certificate was mailed to the camp clerk, who advised defendant, or her husband, it was there, and defendant’s husband immediately went and got it from the camp clerk and took it home. His signature thereon, agreeing to the conditions thereof, bears the date -of January 19. Plaintiff was not consulted nor informed of these proceedings.
A few days before Mr. Loveless’ death, plaintiff went to the camp clerk to pay the dues for that month and was informed they had been paid. She asked if there had been a change in the beneficiary. The clerk told her there had been a change, but that he was not privileged to discuss that matter with her. The evidence discloses that there was a rapid failure in health of Mr. Loveless after he was taken to the defendant’s home. This is shown by the testimony of Doctor Miller and that of another physician who was called early in January, and who treated the patient until his death, calling each day and sometimes twice a day for that purpose. On January 12 he was very feeble and in bed. On the 13th he had a severe attack, from which for a time it was thought he would not revive. He was delirious for 12 to 24 hours before his death. These physicians gave testimony as to his physical ailments. Defendant called a number of witnesses, who saw him at various times he was at her home. Most of these testified to his mental alertness. Plaintiff called two physicians as expert witnesses, who, in answer to hypothetical questions based upon the physical condition of the patient as disclosed by the evidence pertaining thereto, gave it as their judgment that the patient’s mind was so impaired by disease that on January 12 or 19 he could not have had mental capacity to know or realize the consequences of his act or those dependent upon him, or to transact business matters. No attack is made upon the ability nor the professional integrity of these witnesses. There was evidence of the plaintiff of his conduct even before he went to the home of defendant tending to show loss of mental capacity, and perhaps the testimony of some of the other witnesses.tending to show mental as well as physical weakness.
Turning now to the legal questions raised by the appeal. It is contended that under the pleadings this is an equity case and should not have been submitted to a jury, but should have been tried to the court'. It was not improper to try the case to a jury. (Seward v. Seward, 59 Kan. 387, 54 Pac. 1131.)
Defendant moved for judgment on the pleadings, and objected to the introduction of any evidence, on the ground that plaintiff’s petition did not state facts sufficient to constitute a cause of action, and appellant complains of adverse ruling thereon. The- point is made that the petition did not allege that Mr. Loveless was in good standing at the time of his death, and that proofs of death had been made, and that the action was prematurely brought, since under its by-laws the insurer had 120 days after proofs of death in which to pay the claim. None of these questions was in issue at the time these rulings were made, all of them having been admitted or waived by the insurer. There was no error in these rulings.
Appellant complains that her demurrer to plaintiff’s evidence was overruled, and complains of remarks of the court made at that time concerning the burden of proof. At the close of the argument on the demurrer, the comments of the court, as disclosed by the abstract, are as follows:
“I think this case has been tried backwards up to this point. I think the plaintiff stated a cause of action in her original petition, against the Modern Woodmen of America, defendant originally; when taken in connection with the answer of the defendant Woodmen, it makes a case. That is all the plaintiff had to do here to make a case prima, facie. This puts the burden on the defendant, that is, the intervening defendant, to prove her case, whatever she has, before she has any standing here. This demurrer is not well taken. In fact, I think the burden is on the defendant here all the way through in this case — it has been tried backwards. Do you get the point? This reply that was spoken of here was really an answer to the intervening petition; and that is the situation as far as the pleadings are concerned. At any rate, there is sufficient question so that this demurrer should not be sustained, and the case should be submitted to the jury for findings of fact, so that when we get through here, we will have the facts settled, and if the case goes any farther, it can finally be determined by an appellate court if it is not determined here. I think this case ought to be adjusted. We have got to start out with this proposition: that primarily this widow should have this money, unless someone else has some equitable claim to it, which appears to be the case here. But this case really ought to be adjusted by these parties. They ought to get together on an equitable distribution of this fund. Now, that is a suggestion of the court. You folks can think about it between now and 2 o’clock. If you don’t get together, of course, we will proceed with the trial.”
It was not error for the court to overrule the demurrer to the evidence. Wha;t the court there said to counsel about the burden of proof — it is clear from the record as a whole — was in consideration of the question of who should then go forward with the proof, for in his instructions the court clearly placed the burden of proof upon plaintiff. Here each party at the trial was relying upon a beneficiary certificate issued by the insurer; each party’s claim was primarily against the insurer; the insurer had admitted liability and was no longer in the contest; the contest was over the fund, by two independent claimants. In this situation the terms “plaintiff” and “defendant” did not mean much, for either might have been plaintiff and the other the defendant. When one had made a prima facie case it was not error to require the other to go forward with her proof, and that is all the ruling of the court then made on the burden of proof amounted to. The ruling of the court resulted in an orderly presentation of the case as a whole. Neither party was deprived of a fair opportunity to present all her evidence upon every question presented by the pleadings; indeed, that is not even contended. The beneficiary certificate under which plaintiff claimed the fund was properly issued; this was not controverted. The plaintiff, therefore, was entitled to the fund, unless the certificate under which defendant claimed was duly issued. Passing the respective claims of the parties as to contracts between them and the insured, this depended, first, upon whether Mr. Loveless signed the request for changed certificate and the affidavit of the loss of the certificate previously issued, January 12, and the certificate itself, on January 19 — facts asserted by defendant and denied under oath by plaintiff. This placed the burden of establishing those facts upon defendant and required her to go forward with the proof, which, as presented, included all the circumstances pertaining thereto; second, and if those instruments were signed by Mr. Loveless, (a) Was he induced to do so by the fraud and undue influence of defendant? and (6) Did Mr. Loveless have mental capacity to comprehend what he was doing and the consequences of his acts? Upon these questions the burden was upon plaintiff, but after defendant offered proof of the signing of the instruments by Mr. Loveless, and the circumstances relating thereto, perhaps it was not practical to segregate such evidence from that pertaining to undue influence and mental capacity and stop at a place from which plaintiff would then be required to go forward with the proof; indeed, there was then no request that such be done. The suggestion of the court that the parties get together on an equitable distribution of the fund was made to counsel, not to the jury, and is not complained of.
Torching the question of mental capacity of Mr. Loveless on January 12 and January 19 to make the change in his beneficiary certificate, the plaintiff testified to his conduct, acts and appearance on several occasions shortly before he was taken to the home of de fendant and during the time he was there. It is contended she was incompetent by reason of R. S. 60-2804. The testimony did riot relate to transactions or communications with the deceased. (Grimshaw v. Kent, 67 Kan. 463, 73 Pac. 92; Harper v. Harper, 83 Kan. 761, 113 Pac. 300; Brown v. Brown, 96 Kan. 510, 152 Pac. 646; and see annotations on this question, 8 A. L. R. 1097.)
Complaint is made of the testimony of the expert witnesses and of the questions propounded to them. It is not necessary to go into a detailed analysis of this. We have considered all of the arguments of appellant in relation thereto and find nothing seriously erroneous in this respect.
Complaint is made of the refusal of the court to give instructions requested, and also of the instructions given. The instructions given recognize the right of the insured to change the beneficiary, placed the burden upon plaintiff to show the mental incapacity of the insured at the time he executed the instruments upon which the sixth beneficiary certificate was issued, and, taken as a whole, are fully as favorable to defendant as the record warranted. There was no error in this respect.
The court submitted to the jury special questions pertaining to the alleged agreement between the plaintiff and defendant of which she claims to have acquired a vested interest as beneficiary, although, as previously stated, the court took that question away from the jury and instructed them not to consider it in reaching the general verdict. Defendant now complains that the court submitted to the jury special questions upon an issue not before it. Ordinarily special questions should not be submitted to a jury which are not material to a decision of the case. (R. S. 60-2918; Kansas Pac. Ry. Co. v. Reynolds, 8 Kan. 623; City of Wyandotte v. White, 13 Kan. 191.) In this case defendant repeatedly through the trial had urged that this was a suit in equity, that it should be tried to the court, that he should make findings, and the court had announced that he would submit to the jury special questions upon various, phases of the case, their application to be determined at the time of final judgment. With this in mind we are unable to see in what particular defendant was prejudiced by the submitting of these questions. The only questions submitted to the jury on which they were asked to find a general verdict pertained to the mental capacity of Mr. Loveless to execute the papers upon which the beneficiary certificate under which defendant claimed was issued. Special questions were submitted also upon that issue, and it was determined favorably to plaintiff, both by the general verdict and by the answers to special questions pertaining thereto.
Finally it was argued that a new trial should have been granted because of misconduct of counsel for plaintiff in his closing argument to the jury, but this contention has no substantial merit.
The judgment of the court below is affirmed. | [
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The opinion of the court was delivered by
Marshall, J.:
The plaintiff sued to recover under the workmen’s compensation law the balance claimed to be due to her for the death of her husband, Ai Walton. Judgment was rendered in favor of the defendant, and the plaintiff appeals.
The defendant was engaged in distributing electricity to a number of cities, including Bucklin, in the southwestern part of the .state and employed Ai Walton at Bucklin. In the performance of his duties as an employee, he came in contact with a charged electric wire by which he was killed. The defendant admitted its liability to the plaintiff for $1,470, and discounted that sum as provided by law, and paid to the plaintiff $1,176 as compensation, the total amount which it claimed the plaintiff could recover. It was stipulated that the plaintiff might bring an action to recover the remainder of the compensation claimed by her.
The defendant paid Ai Walton $40 a month. Concurrent with his employment by the defendant, he was employed by the city of Buoklin as a general utility man for which the city paid him $85 a month. The plaintiff claims that compensation is due her on the basis of wages at $125 a month under section 44-511 of the Revised Statutes, which section in part provides that—
“Where the workman had entered into concurrent contracts of service with two or more employers under which he worked at one time for one such employer and at another time for another such employer, his average annual earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the injury.”
The defendant contends that the statute contemplates that both employments shall be under the workmen’s compensation law. The city was not operating under that law. No American cases are cited by either party.
The whole of the workmen’s compensation law concerns certain hazardous employments and regulates the compensation that shall be paid by those operating those employments to employees injured therein. The law has nothing to do with the relations of employer and employee in any other kind of enterprise. Section 44-511 should be considered with the remainder of the law; not separate and apart from it. Thus construed, the terms “employer” and “employees” as used in that section mean “employer” and “employees” operating under the provisions of the workmen’s compensation law.
Compensation was paid to the plaintiff on the basis of $40 a month — wages paid to Ai Walton by the defendant. That was all that the law provided for.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Burch, J.:
The action was one for damages for malpractice. Plaintiff recovered, and defendant appeals.
On February 12, 1923, plaintiff was injured while cranking the engine of his truck. The wrist joint was dislocated by throwing the ulna upward and forward through the skin toward the palm of the hand, and the radius was broken. The injury was treated by defendant. About the middle of March the splint and bandages were removed. The swelling had not left the arm, the end of the ulna was not in place, and the radius was crooked. Plaintiff told defendant his arm was not straight, but defendant said he should go ahead and use it and it would probably come out all right. The arm had been set with the palm of the hand up, plaintiff could not rotate his forearm, it ached and throbbed all the time, and in the latter part of April defendant said it would be necessary to break the arm again in order to straighten it. On May 1 plaintiff went to the hospital, was given an anaesthetic, and defendant broke his arm. About three weeks later the splint and bandages were removed. The arm was swollen, the end of the ulna could be seen sticking up, and the arm was so sore plaintiff could do nothing with it. Defendant said it was coming all right, and plaintiff should go ahead and use it. A few days later plaintiff called defendant’s attention to the fact that his arm was crooked, and defendant said, go ahead and use it, it would come out all right, it would get stronger and come out all right. Plaintiff worked his fingers and tried to use his arm and fingers, but on June 11 he complained to defendant that his wrist was out of joint and his arm was crooked. Defendant said to let it go for five or six months, and he would break it again. After defendant had broken the arm in order to straighten it, it was worse than before, and plaintiff did not take defendant’s latest advice. Plaintiff consulted another surgeon, and an X-ray examination revealed the condition shown by the accompanying cut (page 49).
The jury returned the following special findings of fact:
“1. Did the defendant exercise reasonable and ordinary care and diligence in the exercise of his duties as surgeon and physician in the care and treatment which he rendered to the plaintiff. A. No.
“2. If you answer the foregoing question in the negative, specify the particulars wherein the defendant failed to exercise such care and diligence. A. According to the evidence as well as the result obtained, the plaintiff did not receive the care and attention due him.”
Defendant moved the court to require the jury to return a more specific answer to the second question. The jury retired for that purpose, under a proper instruction, and in due time returned the following addition to the first answer:
“Also due to improper adjustment of splint and general indifference shown by the defendant in postponing indefinitely after the last adjustment when his attention was called to the abnormal condition of the plaintiff’s arm.”
Defendant moved to strike out the answer to the second question, on the ground it did not comply with the requirement of the question. The motion was denied, and defendant assigns as error the ruling on the motion. The completed,'answer fully met the requirement of the question. Plaintiff has been deprived in large degree of the use of an arm through improper splinting, a particular wherein defendant-failed to exercise ordinary care and diligence, pleaded in the petition and proved by expert surgical testimony at the trial.
When the jury came in the first time, defendant requested that, if the jury found any act of negligence, it be required to state when the act occurred, whether before or after the bones were reset. The requested additional finding was not stated in writing as the code requires (R. S. 60-2918). It was entirely within the discretion of
the court whether it would entertain the request after the trial was virtually concluded, and the request was properly denied.
The court instructed the jury that the fact plaintiff did not get as good results as he expected or' hoped for was not of itself evidence that defendant was negligent, but was only a circumstance to be considered with all the evidence in the case. Defendant says the answer first returned to the second question shows the jury deliberately disregarded the instruction, and because the jury disregarded the instruction, it was actuated by passion and prejudice. The jury disregarded the instruction to this extent only: It did not consider what plaintiff expected or hoped. It dealt entirely with factual matters, the evidence and visible results, and upon those facts reached the conclusion plaintiff did not receive due care and attention — an inevitable conclusion, temperately expressed.
Defendant pleaded that plaintiff was guilty of contributory negligence. The court instructed the jury it was plaintiff’s duty to follow such reasonable directions and advice as defendant gave him, and to exercise ordinary prudence in the care and use of his arm. Defendant contends plaintiff was guilty of contributory negligence because he did not wait six months and then return to have his arm broken. Plaintiff went to defendant to have his broken bone and dislocated joint treated, and defendant failed to obtain proper results. Plaintiff followed defendant’s advice, and tried to use his arm. Further following defendant’s advice, plaintiff returned to have his arm rebroken and reset. Defendant failed again. Plaintiff followed defendant’s advice, and tried to use his arm, but could do little with it. Then defendant advised him to wait six months, and at the end of that period come back and have defendant do what the crank of the engine had done in the beginning, break plaintiff’s arm. The question is whether plaintiff was guilty of negligence in keeping away from defendant. The jury and the district court thought he was not, and this court is in full accord..
The court instructed the jury that, if plaintiff’s arm could have been benefited by further operation, and he intentionally deferred further treatment or operation until after his lawsuit with defendant was tried, he could not recover for such permanent injury as the proof showed might have been corrected. There is no evidence in defendant’s abstract or supplemental abstract showing the extent to which the condition of plaintiff’s arm may now be remedied, or the cost to plaintiff in money, time, system shock and physical pain of another operation, by a competent surgeon. The jury found from the evidence that plaintiff was entitled to compensation for his injuries in the sum of $5,000. The jury could not, and this court cannot, reduce the amount without data upon which to base the reduction. The court is unable to declare from the evidence that the verdict was excessive in amount.
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The action was one to recover on an accident insurance policy. A demurrer to plaintiff’s petition was sustained, and he appeals.
The plaintiff alleged the execution and delivery of the insurance policy sued upon and a change in the terms of the policy by which the weekly indemnity to be paid was increased from $25 to $30; that on or about December 21, 1921, while engaged in the performance of his duty as a fireman of the city of Wichita, he, with other firemen, was summoned to answer an alarm; that as a part of his duty he was required to slide down a pole from the second floor of the fire station, and that in attempting to catch the pole he sud denly, violently and accidentally struck his body against the pole and lost his hold and fell to the first floor of the fire station—
“Which accident ruptured the said plaintiff and caused a double inguinal hernia, . . . That said plaintiff became permanently injured and disabled, as a result of said accident and said injury, on July 14, 1922, at which time he was compelled to cease working as a member of said fire department, by reason of such permanent injury and disability, caused by said double inguinal hernia, the result of said accident, which occurred on or about December 21, 1921, as above set forth, and which has permanently disabled him and rendered him unfit for the performance of his duties as such fireman and for the performance of any manual labor.”
That within twenty days after the determination of the nature of the injury he orally notified the defendant of said injury, and that about July 14, 1922, he notified the agents of the defendant of the time and place of the accident, etc., and that thereafter the agents of the defendant paid the plaintiff on account of said accident the sum of $300, which amounted to a waiver of the failure of plaintiff to give the notice required by the policy; that the reason for his failure to give the notice provided for in the policy within twenty days after the accident was that he did not know until about May 4, 1922, “that the accident had caused the injury aforesaid — the double inguinal hernia.”
The policy contained this provision:
“Total disability. A. Or, if such injuries do not result in any one of the losses enumerated in Part 1 [death, dismemberment and loss of sight], but shall independently and exclusively of all other causes, wholly and continuously disable and prevent the insured from date of accident from performing any and every kind of duty pertaining to his occupation, the corporation will pay the weekly indemnity above specified for the entire period of such total disability.”
The plaintiff contends that the provisions of the policy should not be strictly construed — that only by inference and not by direct statement can a conclusion be drawn that he was fit to work from the date of the accident until July 14, 1922.
The policy is a contract providing for the payment of indemnity in case of an accident causing injuries which from the date of accident wholly and continuously disable and prevent the insured from performing the duties of his occupation.
The allegations of plaintiff’s petition are that he suffered an injury December 21, 1921; that on May 4, 1922, he discovered that the hernia was the result of the accident (injury); that July 14, 1922, he ceased working; and that he was compelled to cease working because of the hernia. These allegations are clear and unequivocal. “From date of accident” has but one meaning. It does not mean a day or week or month after the accident. It refers to the particular “date” when the accident (injury) occurred. Plaintiff alleges it was December 21, 1921. The policy under which he sues specifies that he may recover “if such injuries . . . wholly and continuously disable and prevent the insured from date of accident [December 21, 1921] from performing any and every kind of duty pertaining to his occupation, the corporation will pay,” etc. But the plaintiff alleges that while he was injured December 21 he ceased working July 14 following — almost seven months after his injury. The allegation that he ceased working seven months after the accident (injury) negatives any claim that he ceased work before that time. That is to say, a reasonable conclusion to be drawn from the allegation is that while he was injured December 21, on May 4, 1922, having been at work since the accident (injury), he discovered that the hernia was the result of the injury, and that on July 14, 1922, he ceased working. The allegation that he did not know until May 4 that he was injured December 21 also-negatives any claim that he was disabled from performing his work from the date of the injury. The language of the policy is plain and unambiguous. It is clear that the plaintiff was not wholly disabled and prevented from performing the duties pertaining to' his occupation from the date of the accident. The defendant was-within its rights in making its liability depend upon the fact as to-whether or not the plaintiff was immediately disabled by the injury from performing the duties pertaining to his occupation. It inserted in the policy these conditions, and doubtless fixed its rate of' premium in accordance with the risk it assumed. To these conditions the plaintiff gave his assent when he accepted the policy. If he was not disabled from the date of the accident he cannot hold the defendant liable. The rule contended for by plaintiff would place the contract in the realm of uncertainty, whereas a reasonable reading of his allegations shows that six months elapsed before he was actually disabled. While the petition alleged in substance that the hernia existed from the date of the accident, no change or progression of the injury was alleged. The limiting words here are not, like those in similar policies more frequently before the courts for- consideration. Ordinarily such policies provide for the payment of indemnity in cases of injury which “immediately” disable the insured. Much attention has been given the word “immediately,” resulting sometimes in a somewhat elastic construction. Various Kansas cases cited in the briefs are not controlling in the instant case. The precise question does not appear to have been before this court.
In Commercial Travelers v. Barnes, 72 Kan. 293, 80 Pac. 1020, 82 Pac. 1099, the insured, a wholesale grocer, on July 23, 1902, swallowed a metal pin, which at once caused him much distress. However, he went to his place of business nearly every day until August 4 of that year, when he became wholly disabled. Between the dates mentioned he attended to his usual business almost every day. He assisted in buying goods, and attended to other matters pertaining to his part of the business. The jury found as a fact that he was wholly and continuously disabled from attending to every kind of business pertaining to his occupation after July 23. This court held.that the finding of the jury was not sustained by the evidence* and a judgment for plaintiff was reversed. It was said:
“A disability is immediate, within the meaning of such contracts, when it. follows directly from an accidental hurt, within such time as the processes of nature consume in bringing the person affected to a state of total incapacity to prosecute every kind of business pertaining to his occupation.” (Syl. ¶ 3.)
This interpretation has been adhered to in later cases. (Erickson v. Commercial Travelers, 103 Kan. 831, 176 Pac. 989; Rabin v. Business Men’s Association, 116 Kan. 280, 226 Pac. 764.)
Robinson v. Masonic Protective Ass’n, 87 Vt. 138, 47 L. R. A., n. s., 924, appears to be a case in point. There the evidence tended to show that an accidental bruise resulted in a felon within twenty-four hours and came within the provisions of the policy that the accidental injury should totally disable the insured “from the date of the accident.” The court said:
“The claim that no recovery can be had under clause B, because the plaintiff’s injuiy did not ‘totally disable him from the date of the accident,’ must also be determined against the defendant on the tendency of the evidence and the construction of the contract. As already seen, the evidence tended to show that the felon appeared within less than twenty-four hours from the time of the injury. It further tended to show that total disability resulted from the time of its appearance. The question then is, Was such disability, within less than twenty-four hours after the time of the accident, though on the next calendar day ‘from the date of the accident,’ within the meaning of that clause of the policy? A construction making the words ‘from the date of the accident’ mean from the calendar day on which the accident occurred, would be so unreasonable in some cases as to render it almost certain that such a construction was not contemplated by the parties to the contract. For instance, the insured might meet with accidental injuries between eleven and twelve o’clock at night, it being within the last hour of the calendar day, and yet if that is the date contemplated by the policy, the total disability of the insured must begin within the same hour and perhaps instantly, in order to entitle him to the benefits provided by clause'B. Assuming that this provision was inserted in the contract by the insurer with intentions reasonable and just toward the insured, we think the words, ‘date of the accident,’ as used in that clause, were intended to mean total disability from the day of the accident, reckoned from the time of the accident, that is, within twenty-four hours thereafter.” (p. 143.)
Thompson v. General Acc., Fire and Life Assur. Corp., 155 La. 31, was an action to recover on an accident and disability insurance policy. The insured was injured April 12, 1915, while a passenger on a street car. The policy provided for indemnity against the effects of bodily injury caused directly, solely and independently of all other causes, etc., which shall “from the date of the accident” result in continuous disability. The petition alleged that the insured was injured April 12, but that he did not suffer actual pain from the injuries and was unaware that he had been injured until subsequent thereto, and only began to suffer acutely after a period of about two weeks from date of injury. The court said:
“It is perfectly apparent that the injuries alleged do not bring the plaintiff’s case within any of the provisions of the policy providing insurance or indemnity for accidental injuries. It was possible for the external violence to have produced the internal injuries which followed the accident and developed thereafter, and to have caused the long confinement and eventual death of the insured; but it is clear that such injuries did not arise at the time of the accident, and were not of such a nature and character as to cause total disability and to prevent the insured from performing ‘every duty pertaining to any and eveiy kind of business from the date of the accident.’ ” (p. 34.)
Martin v. Travelers’ Ins. Co., 276 S. W. 380, 41 A. L. R. 1372, is a case recently decided by the supreme court of Missouri. The insured was a locomotive fireman working in the railroad yards at Springfield.. He was thrown against the can rack over the fire drawer of the engine while putting a shovel of coal in the fire. This occurred in the early part of the night on September 15, 1920. He made no complaint of the injury and continued to work until 4:30 a. m., his regular time of quitting. He worked the two following nights, and thereafter became totally disabled, and died November 20 following. The court considered the question:
“Was insured, by reason of such accidental injury, wholly and continuously disabled from date of accident, within the meaning of the policy? The policy contained the following provision:
“ ‘If such injuries shall wholly and continuously disable the insured from date of accident from performing any and every kind of duty pertaining to his occupation, and during the period of such continuous disability but within 120 days from date of accident, shall result, independently and exclusively of all other causes in any one of the losses enumerated in this part, the company will pay the sum set opposite such loss,’ etc. (Italics ours.) . . .
“That insured was wholly and continuously disabled from a period of two or three days after the time of his alleged injury to the date of his death, there is no question on this record. Nor can there be any doubt that he was not wholly and continuously disabled from the night of September 15, when the alleged injury was received, until after the completion of his night’s work, on the shift beginning September 17, from performing any and every kind of duty pertaining to his occupation. The question then is whether an injury suffered through accident, which does not result in wholly and continuously disabling the insured for two or three days after the accidental injury, comes within the provision that such injury ‘shall wholly and continuously disable the injured from date of accident.’ ...
“We can only construe the contract as the parties made it. We cannot help the beneficiary to escape the unfortunate consequences of an unwise or improvident contract made by the insured. There is no uncertainty or ambiguity about the words ‘fromj date of accident’ and, therefore, no room for a construction such as the court of appeals sought to put upon the words ‘immediate’ or ‘immediately,’ after they had concluded that those words were of similar import with the words ‘from date of accident.’ Unless we can say that the occurrence of total disability two or three days after the accident is the occurrence of total disability from ‘date of accident,’ the beneficiary cannot' recover.” (p. 381. See, also, notes 24 A. L. R. 203 ; 37 A. L. R. 151, and 41 A. L. R. 1376.)
The judgment is affirmed. | [
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The opinion of the court was delivered by
Hopkins, J.:
The defendant appeals from a conviction of driving an automobile while under the influence of intoxicating liquor.
The facts were, substantially, as follows: About dark on the evening of March 3, 1925, the defendant and one George Preston drove into the town of Norwich. They stopped near a hotel conducted by T. R. Newkirk. The defendant had come to take a lady, with her trunk and other baggage, to Wichita. He entered the hotel and asked for the lady. Newkirk observed that he was unsteady on his feet and smelled of alcohol. His actions were such that New-kirk concluded he was not sober, and after the defendant had carried out the trunk and put it on the automobile Newkirk came out, demanded the trunk, and undertook to remove it. An altercation arose between them. D. A. Locke, the city marshal, noticed the confusion and appeared on the scene. The marshal observed the actions of the defendant and smelled the alcohol. After some further conversation the defendant and Preston drove away. The defendant was later charged and convicted under R. S. 21-2160, which provides that:
“It shall be unlawful for any person under the influence of intoxicating liquor or any exhilarating or stupefying drug to drive, operate or have charge of the power or guidance of any automobile, motor cycle or any motor vehicle propelled by other than muscular power, upon any public road, highway, street, avenue, driveway or alley within the state of Kansas. - And that the taking or use of any intoxicating liquor or exhilarating or stupefying drug by the person driving, operating or in charge of the power and guidance of any automobile, motor cycle or other vehicle, or while operating such vehicle propelled by other than muscular power, within a reasonable time prior to taking charge or guidance of such vehicle, shall be construed as prima jade evidence that such person is under the influence thereof.”
Defendant contends that the court erred in receiving improper testimony and excluding proper testimony, in the instructions given, and that certain statements and actions of the court in the trial influenced the jury to his prejudice. He argues that if it were not for the errors complained of it would be useless, perhaps, to contend that the verdict was contrary to- the evidence; that, removing the prejudicial matters, it is quite likely that the evidence standing alone was sufficient to support the verdict of the jury, notwithstanding its meagerness; that there was no direct evidence of intoxication, or of the fact that defendant actually drove the automobile. That is to say, there was no evidence to sustain the verdict. There was evidence that the defendant talked as though his tongue was pretty thick, as though he was drunk. The witness testified that he had seen men under the influence of liquor and they talked as though the tongue was thick; that both the defendant and Preston went away in the car; that the defendant drove the car from the hotel; that the witness did not know where they went. Another witness who saw the defendant on the occasion in question testified that he thought the defendant had been drinking a little.
We are of opinion the evid. nce was sufficient, under all the circumstances, to take the case to the jury.
The defendant complains of the extent or degree of the intoxication proved. The statute does not differentiate between one slightly intoxicated and one “dead drunk.” It prohibits one from driving an automobile who is only slightly under the influence of intoxicating liquor, because his action may endanger others.
The defendant sought to show by the witness Preston that he (the defendant) was not the owner of the car, was not driving it, and had no control over it. Preston testified he had bought the car from the defendant four weeks previous to the episode under consideration, and that about two weeks after the episode he traded it back to the defendant; that no license had been transferred to him and that he received no bill of sale from the defendant when he purchased the car. Defendant complains of cross-examination of Preston by the county attorney; that he was not permitted to tell the jury that he did not understand the law in regard to securing a bill of sale, for an automobile, or the law of transfer of an automobile tag. The defendant was presumed to know the law, and the cross-examination under the circumstances was not improper.
It appears that the county attorney, in questioning Preston on his purchase of the car, went into the matter for the purpose of showing that there was no attempt to transfer the tag or comply with the law regarding the sale of automobiles, on the assumption that no sale had been made; that the alleged sale was a subterfuge to get the car in Preston’s control and out of the control of defendant should the state succeed in showing that the defendant was actually under the influence of liquor. It appears that when the witness finished his' testimony the court, assuming he had testified truthfully and admitted thereby violation of the law, thought proper for the sheriff to detain him until the county attorney had time to draw a complaint. It does not appear that the court’s action carried the suggestion that Preston was not telling the truth, but assumed as a matter of fact that he was speaking the truth. It cannot be said, under the circumstances, that the court erred in permitting a rather extensive cross-examination of the witness. The limits of such an inquiry are ordinarily within the discretion of the trial court. (State v. Smith, 114 Kan. 186, 217 Pac. 307; State v. Shanahan, 114 Kan. 212, 217 Pac. 309.) In State v. Abbott, 65 Kan. 139, 69 Pac. 160, it was said:
“There is no better method of sifting the conscience and testing the veracity and credibility of a witness than by cross-examination, and there is abundant authority holding that for the purpose of impairing the credibility of the witness he may be cross-examined as to specific acts tending to discredit him, although such acts are irrelevant and collateral to the main issue.” (p. 141.)
At the conclusion of Preston’s testimony the court directed the sheriff to hold the witness Preston until the county attorney could draw a complaint against him for violating the law. The contention is that the statement by the court to the sheriff in the presence of the jury was prejudicial to defendant’s rights. We are of opinion the court committed no error in detaining the witness until a complaint could be prepared against him. This phase of the case was not unlike those cases where the court commits a witness for contempt. In State v. Marshall, 95 Kan. 628, 148 Pac. 675, it was said:
“Where the court in the exercise of its sound discretion finds it necessary to send a refractory witness to jail for evading a direct and candid answer to a competent question, no error is thereby committed in derogation of the rights of a defendant on trial at the time.” (Syl. ¶ 1. See, also, State v. Hanger, 108 Kan. 115, 193 Pac. 1052; State v. Hughes, 33 Kan. 23, 5 Pac. 381; Loan v. State [Tex. Cr. R.], 43 L. R. A., n. s., 844, 153 S. W. 305; State v. Swink, 151 N. C. 726; State v. Dalton, 43 Wash. 278; Wright v. State [Tex. Cr. R.], 84 S. W. 593; Sims v. The State, 146 Ala. 109; Pratt v. The State, 59 Tex. Cr. R. 635.)
Other complaints ably argued by the defendant have been considered, but we find no error which would warrant a reversal.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.;
C. A. Munz obtained a money judgment against Anna L. Hill. He caused a garnishment summons to be served upon Fred W. Orlowsld, the executor of the estate of Louise Orlowski, the mother of the judgment defendant. The garnishee filed an answer, in effect stating that he was the executor of such estate; that the defendant was one of the heirs; that the estate was in the hands of the probate judge awaiting an order of distribution, and was not subject to garnishment.
The plaintiff filed a motion to strike the answer of the garnishee from the files because it was not true and correct, did not state the amount of the estate to which, the defendant was entitled, and consisted merely of a conclusion of law. The motion was denied, and from that ruling this appeal is taken.
The contentions of the parties are in some respects rather technical, being based on mere matters of procedure. The plaintiff contends that the answer of the garnishee does not comply strictly and fully with the requirements of the statute. The garnishee asserts that the motion to strike was not proper practice and that the plaintiff has no'standing to question the sufficiency of the answer because four months elapsed after it was made before the plaintiff filed his motion, while the statute provides that a garnishee’s answer shall be conclusive of the truth of the facts therein stated unless the plain tiff shall within, twenty days serve notice that he takes issue upon it. (R. S. 60-948.)
The answer of the garnishee, while somewhat informal, sufficiently presented an issue. It denied having any property, money or credit of the defendant, except as explained with respect to the estate of which he was the executor. The failure to challenge its correctness or sufficiency within twenty days seems fatal to the plaintiff’s case.
However, we prefer to base the decision upon the question of substantive law involved — whether the share of the estate to which the defendant was ultimately entitled was subject to garnishment. The garnishee relies upon Nelson v. Stull, 65 Kan. 585, 68 Pac. 617, 70 Pac. 590, holding that an executor or administrator is not subject to garnishment before a final order for the distribution of the estate is made. The plaintiff relies upon the later case of Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030, as qualifying the earlier ruling, and authorizing a garnishment under such facts as are presented here. Whatever question there might otherwise be as to a conflict between the two .cases cited is set at rest by a still later decision. Ih McCarthy Hardware Co. v. Foust, 118 Kan. 431, 235 Pac. 867, the Nelson-Stull case is approved and the Sherman-Havens case is explained in these words:
“The hardware company cites the ease of Sherman v. Havens, 94 Kan. 654, 146 Pac. 1030, in which it was held that, when, the reason for the rule applied in Nelson v. Stull fails, the rule itself fails. In Sherman v. Havens, the executor was not simply an executor. He was testamentary trustee' of a spendthrift trust, requiring payment to the beneficiary of $250 quarterly in advance from death of the testator to death of the beneficiary. The court held that no order for these payments was necessary, and since the testator had not indicated that the payments were to be enjoyed free from claims of creditors, the executor-trustee was subject to garnishment. While in this instance it is likely that upon a hearing an order granting partial distribution would have been granted, nevertheless such an order was indispensable to liability of the administrator to garnishment.” (p. 432.)
There having been in the present case no order of distribution, and no provision of a will directing payments to be made by the executor as a trustee without an order of the probate- court, the executor was not subject to garnishment and the plaintiff was properly denied relief.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
At the annual school meeting of district No. 3 of Jackson county it was voted that three teachers should be employed for the ensuing year. The treasurer was willing to act in accord anee with this vote, but the other two members of the board favored employing only two. The state brought this proceeding in mandamus to require the employment of three teachers. The district court rendered final judgment for the plaintiff, from which this appeal is taken.
For some five or six years the district has maintained a three-room school with three teachers. At the annual school meeting held April 9, 1926, a motion was made and lost to vote a levy of $2,400 to run the school with two rooms. A motion was then made and carried to vote a levy of $3,000 “to run the school the same as last year.” This was obviously intended to mean that three teachers should be employed, and the record sufficiently shows an order of the annual meeting to that effect. The statute provides that the electors at a school meeting have power “to vote a sum annually not exceeding the limit fixed by law, as the meeting shall deem sufficient, for the various school purposes and for the payment of any floating indebtedness of the district, and distribute the amount as the meeting shall deem proper in the payment of teachers’ wages.” (R. S. 72-406.) We hold that by virtue of this language the meeting had authority to determine the number of teachers to be employed, and its action was binding upon the board unless obedience thereto has been prevented through no fault on its part.
The two members of the board who are contesting the matter take the position that no sufficient funds have been provided for meeting the expense of employing more than two teachers, and that this relieves them from the'obligation of employing a third.
The annual school district tax is limited to six and three-fourths mills on the dollar. (R. S. 79-1934.) The valuation of the taxable property of the district is $380,726. The maximum tax would produce $2,569. The levy of $3,000 was therefore excessive. It was not, however, wholly void, for the statute contains this provision:
“Any levy which may be certified to the county clerk in excess of the limitations placed by this act shall be unlawful, and in any such case it shall be unlawful for the county clerk of any county within the state to enter upon the tax roll of the county any such excessive levy; and in case of any. such excess in any levy it is hereby, made the duty of the county clerk and he is hereby required to reduce such levy and to extend upon the tax roll only such a part thereof as will comply with the provisions of this act.” (R. S. 79-1938.)
By reason of this statute it was unnecessary to make a new levy. The county clerk was authorized and required to reduce the existing levy by the amount of the excess — a mere matter of computation.
This reduction left the district $431 short of the $3,000 appropriated. It had, however, other resources on which to rely, including a little over $100 from the state, $60.41 from taxes on intangibles and $31 from a dog tax. Last year it received $67.50 from tuition. There are, of course, other expenses to be met than the salaries of teachers. The board prepared a budget showing an estimate of $3,312 on a basis of having three teachers and of $2,450 if only two. An effort to keep the expenses of the district within the income of that year is commendable, and the incurring of expenses beyond the revenue is not to be encouraged. The statute, however, does not absolutely prohibit all such excess. Warrants may be issued for which no funds are immediately available.
“The fact that at the time a school warrant is issued there are no funds in the hands of the treasurer with which to pay it does not render the amount illegal or void. When the warrant is presented for payment, it becomes the duty of the treasurer to indorse it ‘Not paid for want of funds/ and it then becomes a floating debt of the district.” (Bank v. School District, 102 Kan. 98, syl. ¶ 2,169 Pac. 202.)
Specific provision is made for the annual school meeting voting a tax to pay any floating indebtedness. (R. S. 72-406.)
The statute authorizes a tax in excess of six and three-fourths mills, to be ordered by a three-fourths vote at a special school district meeting, upon a call issued by the board stating the amount of the proposed increase. (R. S. 79-1937.) The board called such a meeting to vote on a proposition to increase the tax to nine mills. The proposition was lost, although 82 votes out of 129 were cast for it. The attempt to obtain an increase would seem to have been hampered by the board naming too large an amount.
The vote at the annual school district meeting made it the duty of the board to employ three teachers if this could be done. To justify a noncompliance with the will of the voters expressed in the manner provided.by statute (in the absence of a legal obstacle) the burden was on the resisting defendants to show that with the means available they had in good faith endeavored to comply with the direction given them, and were prevented by matters beyond their control. This they failed to do. The case was heard upon oral evidence and the trial court had a better opportunity than we to determine the real attitude of the majority of the board. Upon the'ease as presented there was room for the inference that the director and clerk, granting they acted as they believed for the best interest of the district and the patrons of the school, conceived that they were authorized to follow their own judgment as to the wisdom of employing three teachers. In their brief it-is said:
“No effort has been made by the plaintiff in this action to show any necessity for three teachers in this school or that the patrons of this school would be in any way deprived of school privileges or the pupils thereof suffer by reason of the employment of only two teachers.”
No such issues were involved in this proceeding. The question whether the practice of maintaining three rooms, with three teachers, should be continued', was one of policy which had been finally determined by the voters of the district, and was not subject to review by the board or the court.
For the reasons stated we see no legal obstacle to the employment of three teachers, and the trial court must be deemed to have found upon sufficient evidence that there is no practical obstacle. The judgment is therefore affirmed.
Johnston, C. J., and Hopkins, J., concurring. | [
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The opinion of the court was delivered by
Mason, J.:
Dr. Kenn B. Uhls was prosecuted upon a charge of killing William E. Gibbs and convicted of murder in the second degree. He appeals.
Gibbs was an aged recluse living alone in a small house in Hutchinson. On the morning of December 30, 1923, his body was discovered by a neighbor, her attention having been attracted because of seeing the light of a coal-oil lamp in his home on the evening before, again at about eleven o’clock, and again about five-thirty in the morning. The body was lying in a large pool of blood near a small table and an overturned chair. A gash was over one eye and a hole in the back of the head. About the left hand were four or five small rubber bands. Pieces of the butt end of a pistol were later found in the room.
In 1913 the defendant’s father, who also was a physician, established a sanitarium in the Overland Park district some twenty-five miles southwest of Kansas City. It was reincorporated in September, 1920, as the Uhls Clinics Corporation, with authorized common stock of $750,000 and preferred stock of $500,000, the common stock being principally held by members of the Uhls family. The preferred stock guaranteed eight per cent interest, payable quarterly. The corporation conducted a sanitarium for the treatment of nervous and mental diseases. The defendant’s father was president and manager until his death in August, 1922, when the defendant succeeded him. In November, 1921, Gibbs purchased preferred stock in the corporation of the face value of $102,000. There was an entry on the books of the corporation, purporting to have been made on December 19,1923, showing a transfer of this stock to Charles E. Westerhaven. It is the theory of the state that this entry was fraudulent; that the business of the corporation had been in bad shape and that the defendant murdered Gibbs, or planned and participated in his murder, in order to obtain this stock to save the corporation from financial disaster.
The defendant contends that the verdict is not supported by the evidence. A brief summary follows, in which no attempt is made to distinguish between facts admitted or conclusively proved and those which there was some substantial evidence- to support, inasmuch as for present purposes the effect would be the same.
The defendant was the principal owner of the common stock of the corporation, which was in a failing condition. Two quarterly divi-, dends on the preferred stock had been passed. In October the defendant had made the remark that Gibbs had no relatives, and he wished he would leave his stock to him when he died. The defendant left the-sanitarium on December 28,1923, in an automobile, in company with a patient who was being treated for the morphine habit and was said to be convalescent. They registered after 7 p. m. on that day at a hotel in Newton, checking out on the morning of the 29th. At about five o’clock in the afternoon of that day a man resembling the defendant, dressed like him, and carrying a black bag like his, was seen to approach the Gibbs house in a hesitating manner, enter it and remain there fifteen or twenty minutes. A man whom the witness who saw him thought was the patient referred to walked by the Gibbs home very slowly about four o’clock in the afternoon, looking back every little while, and stopping and looking up and down the street, then returning in the direction from which he had come. The story told by the defendant, and corroborated by the patient, is that they drove from Overland Park to Newton, his errand being to visit the oil fields near there, returning home through El Dorado, Toronto, Yates Center and Topeka, where they arrived three-quarters of an hour after midnight, stopping to eat at a lunch room; that they renewed their journey about 1:45 or 2 o’clock, but returned to Topeka because of a cold rain and fog, arriving about 5 o’clock, registering at a hotel and checking out about 9. The hotel records show that the defendant and the patient were given rooms at 6:27 and checked out at 9:04. The Gibbs stock was later produced by the defendant, who accounted for its possession by saying it was delivered to him for transfer on December 19 by a man calling himself Westerhaven. The certificates bore .an apparently good assignment from Gibbs, which in fact was a forgery. In May, 1924, the then president of the reorganized corporation received through the mail a letter purporting to have been written in San Francisco, to be signed — on typewriter — by Westerhaven, and to give an account of the purchase by him of the stock about the middle of December, 1923, from a man named Merton, who said, he had bought it from Gibbs. Expert evidence was introduced showing that the letter was-written on a typewriter used at' the Uhls sanitarium, and there was testimony that the defendant himself used the typewriter at times. There was testimony of Gibbs having talked after December 19 as though the stock were still in his hands.
We think the evidence sufficient to sustain the conviction.
The defendant was bound over upon a preliminary examination upon a joint charge against him and the patient who accompanied him on his trip. He complains of the refusal at that time to give him a separate hearing. The objection is not good. The statute gives the defendant in a felony case the right to a separate trial (R. S. 62-1429), but the preliminary examination is not a part of the trial.
Complaint is also made of the admission of evidence that the sheriff while holding a warrant charging theft of the stock was unable to find the defendant for several days, during which time he remained at a Kansas City club. The evidence was later stricken out by the trial court, the jury being instructed to disregard it. The defendant while on the stand gave his explanation of the affair, and we see no reasonable likelihood of prejudice having resulted, assuming the evidence to have been improperly admitted.
It is urged that evidence of the mismanagement and bad financial condition of the corporation was irrelevant. In our judgment it had a direct bearing on the issue as accounting for the strong desire of the defendant to obtain the preferred stock. If the corporation was insolvent, as seems to be the case, for a reorganization followed, the obtaining of this stock would obviously have been a ready means of tiding over its difficulties. The case here is not one of showing that a person lacked money as evidence that he stole. The fact that the business had been so managed as to cause or indicate insolvency had a fair bearing on the matter of how great a temptation was presented to obtain possession of the preferred stock the overdue dividends on which were likely to result in an exposure at any moment.
The admission of the purported Westerhaven letter is also complained of on the ground that even assuming there was evidence of its having been written on a typewriter used at the sanitarium there was no evidence that it was written by him, because the standards with which it was compared were not shown to have been his work, while there was evidence that one of them was written by his secretary. It was shown that he sometimes used the typewriter himself. We do not find that the letter written by the sec retary was used as a standard on this phase of the case. We regard it as a fair question for the jury whether under all the circumstances it was clear that the Westerhaven letter was written by the defendant.
Complaint is made because a witness was permitted to give testimony to this effect: He owned a thousand dollars worth of stock in the Uhls corporation that he wished to turn, and a friend advised him to see Gibbs. On December 20, 1923, he had a talk with Gibbs in reference to the stock and the value of it. Gibbs said he had over a hundred thousand dollars worth of the stock at that time and didn’t want to buy any; that he would rather sell; that he really had more than he should own. The witness asked if Gibbs knew anybody he might sell the stock to. Gibbs replied that he had better hold the stock until after January 1, as they were going to pay a dividend then and it would bring more money.
We think the testimony was properly admitted. This is not on the theory that statements made by Gibbs were rendered competent by the fact that he was the person injured by the crime which was under investigation, or by the fact that he was dead, or by both these facts; but because what was said by him in the conversation was so far a part of a verbal act — so far partook of that nature— as to render it admissible upon the same reasoning. The whole episode was a negotiation with respect to the possible sale of stock in the corporation, in which the attitude of Gibbs was that of a man who owned stock himself, giving room for a reasonable inference that he still held that which had been issued to him. The effect in this respect of the conversation did not turn wholly upon the truth or falsity of what Gibbs said. If he had said to the witness, “Don’t you want to buy my hundred thousand shares in the Uhls corporation?” the fact that he used these words would be material as having some tendency to show he had the stock, and no question of the truth or falsity of his utterance would be involved. The fact that Gibbs said he would rather sell than buy gave some indication that he had some stock, whether or not he told the truth.
“If ... an utterance can be used as circumstantial evidence, i. e., without inferring from it as an assertion to the fact asserted . . . the hearsay rule does not oppose any barrier, because it is not applicable.” (3 Wigmore on Evidence, 2d ed., § 1788.)
The circumstance that his language took the form of a declara tion that he did have the stock does not in our judgment vitiate the evidence. The situation moreover has some analogy to that presented where declarations are admitted to characterize or explain the conduct of the speaker. (State v. Pearce, 87 Kan. 457, 124 Pac. 814; State v. Young, 109 Kan. 526, 200 Pac. 285.)
The instructions are criticized on the ground that “if there was any evidence in this case to convict the appellant of homicide, it would seem the only possible conclusion of the jury would be murder in the first degree.” It is conceded, however, that the giving of an instruction on the second degree was not error, because this court has so determined. (State v. Yargus, 112 Kan. 450, 211 Pac. 121.) It is contended, however, that it was error, after having given that instruction, not to instruct on the lesser degrees of homicide. The defendant concedes there was no probability, if even a possibility, of the defendant being guilty of anything less than first-degree murder. In that case there could be no occasion for any instruction concerning manslaughter, even if a request had been made therefor, which there was not. The circumstance that undue clemency was shown in convicting the defendant of second instead of first-degree murder creates no ground for a sound argument that the court should have instructed on manslaughter.
Complaint is made of the court having instructed the jury that one of the defenses interposed was that of an alibi, which ordinarily constituted a good defense, and then in effect'told them the defendant might be convicted if he advised, aided and abetted in the crime. There is no inconsistency or want of pertinence here. The alibi evidence undertook to account for the presence elsewhere at the time of the murder of both the defendant and the patient who accompanied him on his trip. If the jury disbelieved this evidence, as they obviously did, they might still have concluded that the actual killing was done by the patient by the defendant’s procurement.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
On September 28, 1925, an information was filed against William H. Cassady as a persistent violator of the prohibitory law, charging him in three counts with having had intoxicating liquor in his possession after having been convicted of a like charge, and in three other counts with having sold liquor after such conviction. He was acquitted on one count for possession and one for sale, one count for possession was dismissed by the state, and a conviction was. had upon the other three counts. He appeals.
The prior conviction relied upon by the state was had on September 13, 1923. In the present case the defendant filed a plea in bar based upon the fact that on January 13,1925, he had been tried and acquitted upon a charge of having liquor in his possession after that conviction. A demurrer to the plea in bar was sustained. The defendant contends that the acquittal implied a finding that he had not previously been convicted of a violation of the prohibitory law, and rendered proof of such former conviction unavailable against him. A substantially similar contention has been held to be unsound (State v. Schmidt, 92 Kan. 457, 140 Pac. 843), and the ruling in the case cited is adhered to.
The fourth count charged the sale of liquor on June 16, 1924, the same date on which the defendant was charged with possessing liquor in the prosecution which resulted in an acquittal. The plea in bar alleged that the liquor charged in the fourth count to have been sold was the same he had been acquitted of possessing, and urges that the plea should have been sustained for that reason. However, “the doctrine of res judicata does not apply in criminal cases to particular facts in issue” (State v. Schmidt, supra), and the offenses of possessing liquor and selling it are not the same, so there was no former acquittal. This court has held that a conviction for selling liquor may stand although the jury in the same action acquits the defendant of having it in his possession. (State v. Stewart, 120 Kan. 516, 243 Pac. 1057.) The same principle applies here. We hold the demurrer to the plea in bar to have been rightly sustained.
Complaint is made of the omission of the court to give an instruction concerning the defense of alibi as applied to the fourth count, although such an instruction was given as to the fifth and sixth. Evidence was given in. behalf of the defendant obviously intended to show his presence elsewhere at the time of the acts charged in the fifth and sixth counts. If the evidence bore upon his absence from the scene of the sale alleged in the fourth count it did so only obscurely, and without a request there was no occasion for an instruction on the subject.
The judgment is affirmed. | [
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The opinion of the court was delivered by
Mason, J.:
The word plaintiffs will be used to designate the actual plaintiffs and two persons associated in interest with them, who were made defendants. The plaintiffs brought this action to quiet title to a tract of land. . The land was formerly owned by Olaf Peterson. The defendants assert title through a deed to Hannah Heasley from Olaf Peterson personally and as guardian of his insane wife, by order of the probate court, and also through a decree of the district court quieting the title so obtained. The plaintiffs claim as heirs of Olaf Peterson and his wife and contend that the conveyance under which the defendants claim was void because at the time of its execution the land was the homestead of Olaf Peterson and his wife, and could not be alienated without her consent, which could not be given because of her insanity. The plaintiffs in a reply pleaded that the order of the probate court and the decree of the district court were obtained by collusion and fraud. The plaintiffs introduced evidence, a demurrer to which was sustained, and they appeal from that ruling.
The evidence was addressed solely to the proposition that the land was occupied as a homestead by Olaf Peterson and his wife, and that while this condition existed she was insane and so continued until her death. No attempt was made to establish fraud in procuring the order of sale from the probate judge or the judgment of the district court quieting title, unless the evidence of the homestead character of the land, and the fact of the wife’s insanity can be regarded as intended to have that effect, in which case it failed of its purpose. The evidence may have established that the judgment quieting title (to speak of the later adjudication, which is conclusive of the rights of the parties unless set aside) was erroneous — was‘ based on a mistaken view of the facts or of the law, but this would not render it void. There is some difference of judicial opinion as to whether, in the absence .of a statute to that effect, a person who has been declared insane may be sued. (14 R. C. L. 613; 32 C. J. 765.) In this state, however, such procedure is authorized. (R. S. 39-225, 60-408.) At the time of the action in which the decree quieting title was rendered (1911) the statute required service to be made on the guardian, and the defense to be made by a guardian for the suit (Laws 1907, ch. 247, § 25; Laws 1911, ch. 228, § 1), and these requirements were complied with. A judgment against an insane person (except as special statutes may provide otherwise) is as effective an adjudication as any other, and may be set aside only under like circumstances. (14 R. C. L. 615; 32 C. J. 788, 789.)
The petition alleged title in the plaintiffs and the invalidity of the deed under which the defendants claim. The defendants in their answer set out the decree quieting title. The plaintiffs’ reply alleged the decree was obtained by collusion and fraud. The defendants suggest the attack on the decree is not direct. Assuming the attack to be direct, it fails for want of evidence. The fraud for which a judgment can be set aside in a separate action is extrinsic fraud. The evidence did not show that the court which rendered the decree quieting title was induced by false testimony to believe the land was not a homestead, but such a showing would have been insufficient because establishing merely intrinsic fraud. (Huls v. Gafford Lumber & Grain Co., 120 Kan. 209, 243 Pac. 306.) A judgment is not to be vacated upon a mere showing in a new action that the actual facts did not warrant it. An error of fact or law does not constitute a lack of jurisdiction, nor tend to show fraud. In this state even a judgment based on a petition which states no cause of action is not void and is enforceable unless set aside in some method recognized by the law. (Investment Co. v. Wyandotte County, 86 Kan. 708, 121 Pac. 1097.) The question whether an attack on a judgment is direct or collateral is often helpful in determining whether it should succeed, but even a direct attack cannot avail against a judgment which is not void, unless made in an authorized time and manner. (See note, 23 A. S. R. 104, 106.)
The judgment is affirmed.
Burch, J., not sitting. | [
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The opinion of the court was delivered by
Marshall, J.;
The plaintiff sued to recover on the following written obligation signed by the defendant:
“This is to certify that there is due.Jrom the undersigned, Bessie Custer, to George L. Baker, the sum of seventeen hundred and ninety-nine dollars, said sum to be paid to the said George L. Baker, upon the title to the southwest quarter of section thirty-two (32) township thirty (30) south, range thirty-three (33) west 6th p. m. Haskell county, Kansas, being made a good straight merchantable title. Dated this 16th Dec., 1915.”
Judgment was rendered in favor of the plaintiff on a directed verdict, and the defendant appeals.
This litigation is in part a sequence of and is related to Custer v. Royse, 104 Kan. 339, 179 Pac. 353, and Custer v. Royse, 110 Kan. 397, 204 Pac. 995.
The defendant pleaded an option agreement with W. A. Custer, her husband, for the purchase of real property in which the plaintiff agreed to furnish an abstract showing good and sufficient title to the property. That contract was assigned to the defendant by W. A. Custer. The option agreement was dated May 1, 1915, and contained the following:
“It is agreed by both parties hereto that the liquidated damages upon failure of first parties to deliver good and sufficient title or otherwise fail in this contract, shall be two hundred dollars ($200) and shall be due and payable at the time of such failure or within reasonable time thereafter. It is understood that time is the essence of this contract.”
The execution of the writing sued on by the plaintiff was not put in issue by the answer, and the execution of the option agreement was admitted by the plaintiff. •
The answer alleged that no abstract of title was ever tendered. The defendant set up a counterclaim in the sum of $1,500 for damages sustained by her in litigation with one B. R. Royse, to obtain the title to and possession of the real property. A deed conveying the property to the defendant was delivered when the writing sued on was signed. The plaintiff introduced in evidence an abstract of the title to the real property which showed that after the option contract had, been entered into-, but before the acknowledgment of the indebtedness was signed, George L. Baker executed a deed to O. E. Luther for the land in controversy and that O. E. Luther executed and delivered a deed conveying the land to B. R. Royse. Plaintiff also introduced in evidence the judgment and special findings of the jury in Custer v. Royse and the mandate and opinion of this court in the same case, reported at 104 Kan. 339, 179 Pac. 353. The defendant then demurred to the plaintiff’s evidence, and that demurrer was overruled. She then introduced evidence which tended to show that she had been damaged in the sum of approximately $1,500. The plaintiff sued for $1,799 with six per cent interest from December 16, 1915, and obtained.judgment on May 19, 1924, for $1,759, which the plaintiff says was the face of the writing, sued on less the $200 damages named in the option contract with interest on the remainder at six per cent.
The defendant contends first, that it was error to overrule her demurrer to plaintiff’s evidence; second, that it was error to render judgment in favor of the plaintiff; and third, that it was error not to allow the defendant damages sustained by her on account of the defect in the title to the real property.
We pass by the first two of these contentions and will discuss the third one only. The option contract was superseded by the warranty deed conveying the property to the defendant and by the acknowledgment of indebtedness for the property. After the purchase of the land under the option and the delivery of the deed, the defendant’s action for damages was on the breach of warranty contained in the deed, and for failure to comply with the terms of the acknowledgment of indebtedness, not for failure to perform the terms of the option contract. The damages named in the contract-no longer controlled. The whole matter was before the court tinder the pleadings and the evidence. The defendant claimed damages and introduced evidence to prove them. Those damages were sustained in perfecting the title which should have been good when the deed was delivered or should have been perfected by the plaintiff before he sought to recover under the acknowledgment of indebtedness. Neither of those things was done. The defendant perfected the title, but she was at great expense in so doing. Her right to recover those expenses should have been submitted to the jury.
For the error in directing a verdict in favor of the plaintiff, the judgment is reversed, and a new trial is directed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Joe Clark was charged with and convicted of jail breaking, and has appealed.
The first complaint is that the information was defective and that there was error in overruling the motion to quash. The material part of the information was that the defendant did “unlawfully, feloniously and willfully break and escape from the Shawnee county jail while being confined in the county jail of Shawnee county, Kansas, on conviction for a criminal offense,” etc. It is contended that the information was insufficient in that it did not state the nature of the offense of which he had been convicted and because of which he was confined in the jail, and also in failing to state the term of his imprisonment or when the term would expire. The statute under which he was convicted for breaking jail provides:
“If any person confined in any county jail upon conviction for any criminal offense, or held in custody going to such jail, shall break such prison or custody and escape therefrom, he shall upon conviction be punished by confinement and hard labor not exceeding three years, or in a county jail not less than six months, to commence at the expiration of the original tern of imprisonment.” CR. S. 21-735.) 1
The essential elements of the offense were sufficiently stated, that is, that while he was confined in the county jail upon a conviction for a criminal offense he broke the prison and escaped therefrom. As will be observed the charge in the information was substantially in the language of the statute which defines the offense and ordinarily it is sufficient to follow the language of the statute in charging an offense of this character. It is further claimed that it did not conform to the statutory language because it failed to state when the original term of imprisonment would expire or the term for jail breaking would begin. That provision at the end of the section is manifestly not a definition of the offense, but relates only to the punishment for the offense and could not properly be included in the charge. There was no error in denying the motion to quash. (Houpt v. State, 100 Ark. 409.)
The principal contention is that the acts of the defendant, as shown by the testimony, did not amount to a breaking of jail within the meaning of the statute, and that the court erred in the instruction given upon the subject. After producing evidence to the effect that defendant had been found and adjudged guilty of passing a worthless check and was confined in the jail under the judgment, testimony was offered by the state tending to show that defendant and four other prisoners were confined in a cage which opened into one of the corridors of the jail. On the morning of the breach and escape, the jailor went to the cage for the purpose of taking out a trash bag containing watermelon rinds and other refuse. To do this he unlocked and opened the door of the cage sufficiently far to take out the trash bag, whereupon three of the prisoners, including the defendant, pushed the door which opened outwards against the jailor. The defendant and one other prisoner hit the jailor on the head, took hold of him and threw him violently against the metal door, fracturing his aim, wrenched his hand loose from the handle of the door, threw him down, and while he was down and disabled the defendant as well as the other prisoners escaped. The contention of the defendant is that under the statutory provision there was no breach of the prison, for the reason that the door through which defendant escaped was not locked, and that he passed out of the cage and jail without unlocking the door or severing any part of the structure. It is insisted that a constructive breaking is not a violation of the statute, and that there being no obstruction to their leaving the prison it did not amount to a breaking. It has been held that a constructive breaking is not a violation of the statute and that something must be done to open a way through confined walls or other obstruction to a free entrance or exit. The holding was that there must be an actual application of force and that an escape accomplished by strategem and not by force is not a prison breach. (State v. King, 114 Ia. 413.) This authority recognizes that the opening of the way through an obstruction by force and violence was a violation of the statute. Here as we have seen there was both force and violence used to open the way to an escape. Although no part of the walls or door of the jail was severed, the jailor at the time of the escape formed a part of the inclosure and was a physical obstruction to an escape. He was assaulted and beaten, thrown down and his arm fractured by the defendant and those aiding in the escape. While a mere constructive breaking, as walking out of an open prison door without using force or violence is not a violation of the act, it is a prison breach to break out through any confining wall or obstruction by force or violence. (2 Bishop on Criminal Law, 9th ed., § 1081; 10 R. C. L. 580.) The door of the cage was not opened unnecessarily by the j ailor, as it appears there was no other opening through which the trash container could be removed. There was no negligence on the part of the jailor, as he opened the door just wide enough for the passage of the trash bag, and he stood in the door with his hand on the lever until the defendant and others broke through the obstruction by force and violence. The trial court’s instruction on the question was a correct statement of the law. It is:
“If you find from the evidence in this case that the defendants went out of the jail without any obstruction, the doors thereof being left open with the consent of or through the negligence of the jailor, or if they otherwise escaped without any force or violence, it would not be said that they broke jail or prison, but if they used force or violence to overcome the jailor, and went out without his consent, then it would be said that they broke jail. If the defendants acted in a wrongful combination or conspiracy with other prisoners to effect unlawful escape from the jail, then they would be as responsible for the acts done in pursuance of such combination or conspiracy, even though they may not have used actual force or violence themselves.”
The judgment of the district court is affirmed. | [
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The opinion of the court was delivered by
Dawson, J.:
This defendant was convicted of having unlawful possession of intoxicating liquor.
It appears that the sheriff raided defendant’s premises, and found in his cellar a ten-gallon jar which contained a decoction composed of water and raisins and having a high percentage of alcohol.
In the prosecution which followed, the chief defense was that the liquid mixture was only vinegar in the course of its making, that it had been set for such legitimate purpose under sanction of the statute (R. S. 21-2112) by defendant’s wife, and that defendant personally had nothing to do with it. But there was other testimony, however, that at the time of the search and seizure defendant told the sheriff and his deputies he had lately been in a hospital; that his doctor had told him wine would do him good, and that he had made it, and “after he made it, that he did not like it and that he didn’t drink it.” Defendant also said: “I don’t see how they can stick me for that. My doctor ordered me to drink wine.”
Under the errors assigned, it is argued that the liquid in the jar was not intoxicating liquor, although “at some future time the contents of this jar could have been made into an intoxicating liquid.” The state’s expert witness, a chemist, testified that the liquid was an unfinished wine. In August, when it was seized by the sheriff, the liquor tested 13.34 per cent alcohol. After it had lain in the court house unsealed and covered with a cloth until the time of the trial in December of the same year, a considerable percentage of acetic acid was disclosed by a chemical analysis then made. Its presence was accounted for because of the natural tendencies of the liquid when kept unsealed.
Defendant directs attention to part of the chemist’s testimony:
"Q. Now will you look at the contents of that jar just as it is there (indicating) ; is that a mash — is that what you call a mash? A. No, sir.
“Q. What is it then? A. That might be construed as a wort, as a solution containing sugars and so forth. That is considered a wort. The term mash as used by the trade would ordinarily be considered to cover solutions and mixtures of grains rather than of fruit juices from which wines are made.
“Q. Well, you think then that you wouldn’t call that a mash that was set with grapes or raisins to make vinegar, would you? A. Well, I hardly think you would call it a mash in either case. That would be covered by the term wort, I believe. . . .
“Q. Well, could you drink it in its present condition in any sense of the word? That is, without being drained off? A. No; as it is, I wouldn’t consider it a drink.”
Elsewhere, however, he testified:
“I analyzed this sample and found it contained 13.34 per cent of alcohol ... on the 29th day of August, 1925. . . . And we found nothing in it that would make it unfit for beverage purposes. ... I would call that liquid an unfinished wine. At the time I made my analysis of it, I examined it also> for acetic acid and I found a very small quantity of acetic acid. At that time it didn’t give off the odor or have any of the tests of acetic acid, . . . 4th of December, 1925. This time I analyzed the liquid again and my analysis showed 12.8 per cent of alcohol by volume, 2 per cent of acetic acid and some unfermented sugar present.”
The chemist explained, the presence of considerable acetic acid in the liquid at the time of the trial:
“If the liquid is not closed to the air, but is only covered loosely by a cloth, it is practically the same as if it was uncovered altogether. It goes through two separate stages of fermentation. The first one produces alcohol which will produce from 14 to 15 per cent alcohol as the maximum amount in fruit juices. The alcohol kills the ferment which causes it. When the ferment is killed, of course it ceases to ferment further. And if the bottle or container has the air excluded no further fermentation takes place. . . .
“The leaving of this jar of liquid open and uncovered would cause the further fermentation of acetic acid after the maximum amount of alcohol had been produced, and that would be true even though you take ordinary commercial wine and leave it standing open and exposed to the air; and it will convert any ordinary wine into a large percentage of acetic acid if left standing open. After it reaches the maximum per cent of alcohol it then forms acetic acid where the air is not excluded.”
Since part of the chemist’s testimony was to the effect that the liquid was not unfit for beverage purposes when it was seized by the sheriff, that it was an unfinished wine and could be drunk and that it contained 13.34 per cent alcohol, and when we keep in mind the statement of the defendant that he had made this wine in compliance with his doctor’s orders, this court is bound to hold that the contention that there was no evidence that the contents of the ten-gallon jar was intoxicating liquor cannot be sustained. (State v. Miller, 92 Kan. 994, syl. ¶ 2, 142 Pac. 979; State v. Wilson, 110 Kan. 131, 202 Pac. 860. See, also, State v. Kane, 114 Kan. 426, 219 Pac. 281.)
Defendant assigns error on part of the fifteenth instruction wherein the court told the jury that the liquor in question might be properly designated as intoxicating if it were so in fact even though it had to be strained off before using. This was quite a proper instruction under the facts of this case. It would never do for this court to sanction the idea that a liquid containing a high percentage of alcohol was not intoxicating merely because of the presence of raisins or other innocuous elements requiring the liquid to be drained off before it could conveniently be used as a beverage. (State v. Wilson, supra; State v. Kane, supra; State v. Rooney, 118 Kan. 618, 620, 236 Pac. 826.)
Defendant also complains because the trial court “failed to give a single instruction setting forth the right of one to set or make a wash, mash or wort for vinegar purposes — and failed to instruct the jury of the right of one to make vinegar.” The court did give this instruction:
“It is one of the contentions of the defendant that he had nothing to do with the placing of the contents in the ten-gallon jar which was found in the cellar of his home, and that he knew nothing concerning same, until -after his arrest, except that he had been informed by his wife that the contents of said jar was set for the purpose of making vinegar.
“In this connection you are instructed that if you find and believe from the evidence that the defendant had nothing to do with placing the contents in the jar in question at the place where it was found and that he had no knowledge concerning its contents, but that he acted or omitted to act upon the information given to him by his wife, which information he actually believed to be true, and did not know otherwise, and. that he in no wise assisted, aided or abetted his wife in the unlawful possession of intoxicating liquors, if such were intoxicating liquors, then I say to you that the defendant would not be guilty under the law and you should so find.”
Such instruction adequately covered the defense outlined by defendant’s counsel and accorded with the testimony adduced in defendant’s behalf, and the omission of any further reference to the right and privilege of making vinegar sanctioned by the statute or that the making of vinegar is not forbidden by law was nonprejudicial.
Exception is also taken to an' instruction wherein the court told the jury that any mixture under the name of vinegar or any other name, capable of being used as a beverage in such quantity as to produce intoxication would be intoxicating liquor. Its quality as an intoxicant and its availability for use as a beverage being determined, it was quite immaterial what it was named. The criticized instruction was a correct statement of pertinent law.
A review of this case discloses no material error, and the judgment is affirmed. | [
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The opinion of the court was delivered by
Johnston, C. J.:
Nelson Bisagno was convicted of carnally knowing Wilma Holderman, a female child of the age of fifteen years, and appeals.
He assigns errors on. rulings denying a motion for a continuance, the admission of certain evidence, the giving of certain instructions, and the denial of his motion for a new trial. The case was assigned for trial on January 21, 1925, and on the nineteenth of that month he moved for a continuance to the succeeding term of court, for the reasons that the state had indorsed the names of three additional witnesses upon the information, one of whom was Thelma Hoggatt; and that his counsel had not proper opportunity to inquire as to the added witnesses and the materiality and importance of their testimony. He alleged that he had been arrested on January 21 upon a charge of statutory rape on Thelma Hoggatt, one of the added witnesses, and that the preliminary hearing on that charge had been set for January 23, and that he could not safely proceed to trial on the Holderman charge until the next term of court. While the court declined to continue the case over the term, the trial was postponed to January 25. The reassignment of the case to the later date gave defendánt a fair opportunity to investigate the added witnesses. Under the circumstances the time to which the case should be continued was largely a matter for the discretion of the court. Defendant was not entitled to a continuance over the term as a matter of right, and by reason of the postponement he was enabled to make an investigation as to the new witnesses. It was held in a homicide case that:
“A continuance is not ordinarily demandable as a matter of right because the names of witnesses are indorsed on the information at the commencement of a trial.” (State v. Mullins, 95 Kan. 280, syl. ¶ 5, 147 Pac. 828.)
It appears that his rights in this regard were protected, and certainly the refusal of a further continuance cannot be regarded as an abuse of the discretion vested in the court.
Error is assigned upon an instruction that:
“It is not necessary for the state to prove the exact date upon which the offense was committed, if an offense was committed, but it is sufficient if the state has shown beyond a reasonable doubt that the offense charged was committed on or about the date alleged and within two years next preceding the commencement of this prosecution.”
It is insisted that as the date of the offense was stated in the information, it was error to instruct that evidence of the commission of the offense at another or a later time might be considered. The matter of time was not material except to confine the proof to the commission of the offense within the period of time fixed by statute. (R. S. 62-1006; State v. Barnett, 3 Kan. 250; State v. Harp, 31 Kan. 496, 3 Pac. 432; State v. Brooks, 33 Kan. 708, 7 Pac. 591; Topeka v. Crawford, 78 Kan. 583, 96 Pac. 862; State v. Bowman, 106 Kan. 430, 188 Pac. 242.)
It is argued that there was a special reason to confine the proof to the alleged date, since one of the defenses made was an alibi, but no prejudice could have resulted in that regard, since only one unlawful act was charged, and the proof received related only to that act which occurred on the night of an election, November 4, 1924. There was no uncertainty as to time, either in the charge or in the evidence, and hence the defendant could not have been embarrassed in meeting that element of the case.
There is a further contention that the evidence does not sustain the verdict, but we find the record contains direct and substantial evidence which if worthy of belief was sufficient to uphold the verdict. There is no occasion to recite and analyze the testimony, as the credibility of witnesses and the truth of their testimony have been considered and determined by the triers of the facts.
Another assignment is that error was committed in the admission of testimony that defendant had sexual intercourse With Thelma Hoggatt. It is contended that proof of another independent offense was not only incompetent but very prejudicial to the defendant. Of course the defendant could not be tried for an offense other than the one charged, nor could any proof be received unless it tended to, prove the offense specifically alleged in the information. However, if the evidence tended to prove that defendant was guilty of the particular offense charged, it was admissible, although it may have tended to prove his, guilt of another offense. In offenses of this class, proof of other acts of intercourse may be received to show the lustful disposition of defendant. In State v. Stitz, 111 Kan. 275, 206 Pac. 910, a prosecution for statutory rape, it was said:
“While the general rule is that one crime cannot be established by proof of other independent crimes, there are well recognized exceptions to the rule, and one of them is that in sexual offenses proof of prior and subsequent acts of intercourse are admissible to show the lustful disposition, the existence and continuance of the illicit relation, as these tend to explain the act charged and corroborate other testimony of the prosecution. The exception has been so frequently and thoroughly considered that there is no occasion for further consideration or comment.”
Reference is made to the many cases there cited. See, also, State v. King, 111 Kan. 140, 206 Pac. 883.
The evidence of other acts of sexual intercourse about the same time tended to show a lustful disposition and to supplement and support other evidence of the state that he committed the offense charged: If the testimony may be regarded as inadmissible, the subsequent proceedings rendered it innocuous. After it had been admitted over objection, the judge at a later stage of the trial expressed doubts as to the competency of the evidence, and thereupon advised the jury that he was withdrawing from their consideration all evidence pertaining to the Hoggatt transaction, telling them that no part of it should be taken into consideration in determining the guilt of the defendant of the offense against Wilma Holderman. While it is said that the impression and influence resulting from the evidence could not be eradicated from the minds of the jury by its withdrawal and the instruction of the court to disregard it, it must be assumed that the jurors were intelligent and honest enough to observe the express instruction of the court. It is well known that jurors give close attention to statements made by the judge during a trial, and are strongly inclined to'follow any suggestions made by him as to the materiality and application of evidence and the force to be given it. Assuming that error was committed in the admission of the evidence, we think it was cured by the withdrawal of the same and the admonition of the court that it should be given no consideration in determining the guilt or innocence of the defendant.
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The opinion of the court was delivered by
Johnston, C. J.:
The Byers rural high-school district No. 2 brought this action against the board of county commissioners of Stafford county to recover tuition of certain pupils residing in Stafford county, who attended the plaintiff district during the school years of 1922 and 1923. The trial resulted in a verdict and judgment for the defendant, and plaintiff appeals.
The" facts, about which there is no substantial dispute, are that both Pratt and Stafford counties are operating under the Barnes high-school law; that duly accredited high schools exist in both of the counties; that plaintiff is in Pratt county, and that the Antrim rural high-school district is in Stafford county; that the pupils, nine in number, reside in a community of Stafford county remote from a high school, and'in which there are not a sufficient number of pupils of high-school advancement to organize and maintain another high school; that the pupils had completed the course of study prescribed by the state board of education which entitled them to entrance in a high school; that they did attend the high school in the plaintiff district during the period for which tuition is claimed; that the county superintendent of Pratt county recommended to the commissioners of Stafford county that the bills for the pupils from Stafford be paid, with the exception of the tuition of two of them, and these were excluded from the recommendation on the sole ground that the affidavit of the head of the family had not been attached to the account for tuition. The bills were rejected by the board of county commissioners of Stafford county, and the plaintiff took an appeal to the district court. There much testimony was taken, which related largely to the location of the plaintiff high school and of the Antrim high school, both of which appear to be about equally distant from the community where the Stafford county pupils resided, and also the locations, condition of the highways leading to the schools, and the convenience of access to them. A motion was made by the defendant to require the plaintiff to elect upon which statutory provision, R. S. 72-3013 or R. S. 72-3014, it would rely for a recovery. The plaintiff declared that both provisions were applicable and were relied on as an authority for a recovery. The court then stated that it would instruct the jury as to the law applicable when that stage of the trial was reached. In the instructions subsequently given, the court confined the jury to consideration of R. S. 72-3013, which is as follows:
“That tuition shall be free in all high schools to pupils residing in the county where high schools are located: Provided, That such pupils shall present to the high-school authorities an entrance certificate signed by the county superintendent of public instruction certifying that such pupil has completed the course of study prescribed by the state board of education for the pupil below the high school, or who shall pass such entrance examination as the high-school authorities may require: And provided further, That whenever a community is remote from or is not convenient of access to a high school already in operation, and there is not a sufficient number of pupils of high-school advancement in such community to organize and maintain another high school, the board of county commissioners shall, upon recommendation of the county superintendent of public instruction, pay the tuition, not exceeding two dollars per week or fraction thereof for such pupil of high-school advancement in' the most convenient high school to such community, but within the county or in the county adjacent thereto: Provided further, That the county commissioners shall pay such tuition from the general fund of the county where such pupil resides.”
The other provision, R. S. 72-3014, is as follows:
“That tuition shall be free in all high schools established pursuant to Laws 1905, chapter 397, as amended by later enactments, to pupils residing , in the county where such high-school law is in force: Provided, That such pupils shall present to the high-school authorities an entrance certificate, signed by the county superintendent of public instruction, certifying that such pupil has completed the course of study prescribed by the state board of education for the pupil below the high school, or who shall pass such entrance examination as the high-school authorities may require: Provided jurther, That when pupils reside in an adjacent county that does not operate under the provisions of such high-school law established pursuant to the Laws 1905, chapter 397, as amended by later enactments, the board of county commissioners of such adjacent county in which the pupils reside, shall upon recommendation of the county superintendent of public instruction having jurisdiction over the high school where said pupils attend, pay the tuition of $2 per week or fraction thereof, for such pupils to the district in which the high school is located: Provided jurther, That, this act shall apply to all high-school pupils residing in any adjacent county that attend high school established under Laws 1905, chapter 397, as amended by later enactments: Provided jurther, That the said county commissioners shall pay such tuition from the general fund of the county where such pupil or pupils reside.”
The court submitted to the jury the question which of the two high schools was more convenient for the pupils of the community to attend under an instruction that—
“Said pupils were entitled to attend the most convenient high school either in the county of their residence or an adjacent county, and that their tuition, not to exceed $2.00 a week or fraction thereof, should be paid by the county of their residence.”
In answer to a question, the jury stated that the Antrim high school, which the pupils of the community did not attend, was more convenient than the Byers high school, which they did attend. Motions were made to set aside the finding and for a new trial, but they were denied. In the instructions, findings and judgment, the recommendation of the county superintendent as to attendance and tuition of the pupils was ignored. In the statutes quoted it is made clear that the legislature intended that all pupils who have advanced to high-school standards, wherever they may reside, are entitled to high-school privileges, free of cost to them. The second section quoted is only a broadening of the provisions of the first one, so that the tuition should be actually free in all high schools. Pupils who reside in a community where there is no high school and not a sufficient number of pupils to warrant the organization and main.tenance of another high school, may attend the most convenient high school, either in the county of their residence or in any county adjacent thereto, upon the recommendation of the county superintendent. Recognizing that disputes might arise as to the question of convenience, the legislature placed the duty and responsibility of determining that question on the county superintendent, and manifestly intended that the recommendation and decision of that officer should be controlling. County superintendents are chosen from those of advanced educational training and experience (R. S. 72-202) and are given charge of the public schools, teachers and pupils within the county, are authorized to classify pupils and regulate methods of instruction, to visit and hold meetings in every district at least once every year, apportion school funds, appoint officers to fill vacancies, organize and change districts, and numerous other duties and responsibilities are placed upon them. (R. S. 72-207 to R. S. 72-220.) Because of his qualifications and the functions of his office, the county superintendent is well informed as to locations of schools, the means of access to them, and which, in view of all the circumstances, is most convenient for pupils to attend. There is undoubted power in the legislature to provide for the payment of the tuition of pupils living in a community where there is no high school, and also to require payment of the same by the county. There is unquestioned authority, too, to provide that a certain officer shall settle questions that may arise as to where pupils not residing in a high-school district shall attend. Convenience of access involves more than distance of the school from the community where the pupils live. The condition of the roads and means of travel are important considerations. Under the statute these matters are to be determined by the county superintendent and not by the board of county commissioners. In the absence of fraud, bad faith or unreasonable arbitrary action, the decision and recommendation of that officer is binding upon county commissioners and courts. There was no suggestion of fraud or bad faith in the action taken by the county superintendent, and upon her recommendation and decision, coupled with the conceded facts, an obligation of the county for tuition to plaintiff arose, and the jury should have been so instructed. The finding as to convenience and right of recovery for the tuition is not sustained by the evidence, and that finding, as well as the verdict, should have been set aside. As we have seen, tuition for two of the pupils was not'recommended by the county superintendent. This approval was not withheld on account of any'doubt as to the attendance or their residence, but upon a supposed necessity that an affidavit of the head of the family in support of the claim should have been attached to and presented with the account. This was not essential if the county superintendent was satisfied by other information or evidence that there had been compliance with the statutory requirements, and that the defendant county was liable for the tuition.
The judgment must therefore be reversed, and the cause remanded for further proceedings in accordance with this opinion. | [
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Per Curiam:
The judgment is affirmed. Mandate will go down at once. Opinion will follow when it can be prepared; | [
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The opinion of the court was delivered by
Johnston, C. J.:
This appeal involves a ruling of the district court refusing to set aside a judgment purporting to dissolve the marriage relation which had existed between Ernest Tomlinson and Jessie Tomlinson.
They were married in July, 1918, and on November 8, 1920, on the petition of Ernest Tomlinson and the proof made, the decree of divorce was entered. Jessie Tomlinson filed no answer and made no resistance to the granting of the decree. About two years after the divorce was granted she married another man, and thus recognized the validity of the divorce. Following the decree of divorce and after the expiration of six months, Ernest Tomlinson intermarried with Anna M. Power. At the time of this marriage she owned property in Lyon county, Kansas. She died intestate on May 24, 1924, and there being no issue from the marriage Ernest Tomlin-son, the husband, claimed that the property of which she died seized descended to him. On April 15, 1925, Emma B. Fergus, attempted' to intervene in the divorce proceeding of 1920 by filing a motion to set aside the judgment of divorce upon the ground that it was granted without jurisdiction, in that Ernest Tomlinson was not a resident of Lyon county, when the divorce was granted, but was a resident of the state of California, and on the further ground that there was no personal service of summons, but only an attempted service by publication, and that the plaintiff failed to- file an affidavit for publication as required by statute before attempting to get publication service upon Jessie Tomlinson.
Emma B. Fergus, the intervener, was not a party to the divorce action and had no interest in the property when the divorce was granted. She claims the right to intervene and set aside the decree of divorce upon the ground that she is a cousin and heir of Anna M. Power, the second wife of Tomlinson, who died leaving an estate of $14,000. She alleged that Ernest Tomlinson was never in fact the husband of her aunt, Anna, because he had a living wife, from whom he had not been legally divorced, and that Anna not being his legal wife her property did not descend to him. One ground of attack is that he was not a resident of Kansas when the divorce proceeding was instituted, and for that reason the court was without jurisdiction to entertain the action or dissolve the marriage relation. Her attack on the judgment is necessarily collateral, as she was not a party to the divorce proceeding, and had no interest in the property when the divorce was granted. On its face the judgment of divorce was regular and valid, reciting as it did the necessary jurisdictional facts as to residence and as to service upon the defendant. Every presumption is in favor of the jurisdiction of a court of gen eral jurisdiction, and anyone attacking the jurisdiction is required to show clearly and affirmatively the facts which overcome the presumption and establish the lack of power in the court. (Butcher v. Bank of Brownsville, 2 Kan. 70; Carey v. Reeves, 32 Kan. 718, 5 Pac. 22.) It has been held that:
“Where the jurisdiction of the court depends upon a fact which the court is required to ascertain and decide, its judgment determining that a fact does exist is conclusive evidence of jurisdiction until set aside or reversed by a direct proceeding.” (In re Wallace, 75 Kan. 432, 89 Pac. 687.)
In the present proceeding it must be assumed that the trial court found that the plaintiff in the action was a resident of the state, and that due service w.as made upon the defendant and all steps necessary to give the court jurisdiction were taken. In respect to residence, Emma B. Fergus offered testimony to the effect that Tomlin-son and his wife, Jessie, went to Colorado where they remained for a number of months and later went to California. Some circumstances and expressions were brought forward tending to show a change of residence. In behalf of Tomlinson testimony was produced to the effect that his absence from Kansas was temporary, that he retained his home in Emporia in which household goods were kept, and that he returned several times to his home. There was also testimony that he was sick and went west in search of health, and that it never was his intention to abandon a residence in Kansas and acquire another in either Colorado or California. That he was a resident of Kansas was adjudicated in the divorce action wherein plaintiff was required to plead and prove actual residence for a year preceding the application for divorce, and on the proof offered the court found the requisite residence. It had authority to take evidence and determine the question, and if the testimony was weak or even false it would not follow that its finding was void or that it lacked the jurisdiction to decide the'disputed question. (Blair v. Blair, 96 Kan. 757, 153 Pac. 544.) Much conflicting evidence as to residence was produced in the present proceeding, but the court settled that dispute as appears from the following finding:
“That the proceeding in said cause was regular; that the plaintiff was, at the time of the filing of said divorce proceeding, a bona fide resident of Lyon county, Kansas, and had been for more than one year prior thereto. That for the purposes of recovering his health, plaintiff had been absent from his home in Emporia, Kansas, at various times during the year preceding the filing of said divorce suit, and that plaintiff's wife, during the said year pre ceding the filing of said divorce suit, actually removed her effects from the state of Kansas, to wit, at various places, and finally to Long Beach, California; that the plaintiff, at such times as he was absent from his home in Emporia, as aforesaid, lodged with his wife at various places at which she took up her abode; that during such times they never stopped at any one place to exceed two months, and, except for one time, they never stopped at any one place to exceed one month.”
There is abundant support in the testimony for this finding.
Another ground of attack is based on the claim that no affidavit for service by publication was filed before publication, and also that the plaintiff did not send a copy of the petition with the publication to the defendant. That publication was made is not denied, and there w.as evidence tending to show that a copy of the petition with the publication attached was sent to the defendant. However, no affidavit for publication was found among the files and papers of the case, and it is insisted that an affidavit is the foundation upon which jurisdiction is obtained, and if none was filed all subsequent proceedings, including the judgment, were void and of no effect. The clerk of the district court testified that no entry of the filing of an affidavit had been made in the appearance docket, and that none was filed by him. He stated further that the affidavit might have been brought to the office and left for filing, but he had no recollection of it and thought it improbable. On the other hand, there was proof in behalf of plaintiff that the petition and affidavit was prepared by plaintiff’s attorney, after which plaintiff and his attorney carried both to the clerk’s office, where the affidavit was signed and sworn to by the plaintiff and left with the clerk. His testimony was supported by that of his attorney, who stated that he prepared the affidavit and petition and brought them to the clerk’s office in company with plaintiff, where Tomlinson signed and swore to the affidavit and left it with the clerk to file. A finding was made by the trial court that the petition and affidavit for service by publication were brought to the clerk’s office and left with that officer. It appears that the absence of the affidavit.from the files was brought to the attention of the plaintiff in October, 1924, whereupon a motion was made by him in the district court reciting the filing of the affidavit, and that it had been lost, or could not be found, and asking the correction and completion of the record in that respect. Up'on a hearing of the motion and testimony produced, the court at that time found that the affidavit was in fact made, sworn to and filed, and the record was accordingly corrected. Aside from the order correcting and completing the record so as to make it speak the truth in respect to the affidavit, which was clearly within the power of the court, the fact that the affidavit was made and filed was sufficiently established by the evidence in this proceeding. It may not have been indorsed as filed when left for filing with the clerk, but the mere indorsement is not an essential act of the filing. A paper is deemed to be filed when it is delivered to the proper officer and received by him to be kept on file. Parties who deliver a paper to the officer for filing should not be prejudiced by the omission of the officer to indorse and preserve it. (Wilkinson v. Elliott, 43 Kan. 590, 23 Pac. 614; Implement Co. v. Parlin & Orendorff Co., 51 Kan. 566, 33 Pac. 363; Rathburn v. Hamilton, 53 Kan. 470, 37 Pac. 20.) The evidence warranted the finding by the court that the affidavit was filed. While the affidavit is necessary to obtain service by publication, the important thing is the giving of notice to the defendant of the beginning of the action. It is the publication that is designed to give notice, and as we have seen publication was made, a copy of which was brought to the notice of the defendant.
There is a claim that copies of the petition and publication notice were not sent to the defendant, but there was evidence tending to show that the copies were sent by plaintiff, and besides, the attorney for plaintiff addressed a letter to defendant with copy of the petition suggesting the entry of appearance, the employment of an attorney and the filing of an answer as she might desire, and he also advised her when the case would come on for trial. It is .also in evidence that a letter was written by her to plaintiff acknowledging the receipt of the papers and saying in substance to go ahead and get the divorce, the sooner the better, as she did not intend to live with him again. After the divorce w,as granted, defendant wrote to the clerk, making inquiry about the divorce, and he replied that the decree had been granted, giving the date thereof, and that all the papers had been legally served. The defendant, as has been stated, is not challenging the legality of the service or the validity of the decree, but has recognized that she was duly divorced from plaintiff by her subsequent marriage to one, Simms. In her motion, Emma B. Fergus would place her aunt, the defendant, in a bigamous relation with the plaintiff, and also with her present husband, Simms. The decision of the trial court acquits the defendant of that charge.
Our conclusion is that the divorce was valid, and therefore the judgment of the court is affirmed. | [
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The opinion of the court was delivered by
Thiele, J.:
This was an action for an injunction, and from a ruling sustaining defendant’s demurrer to its petition the plaintiff appeals. For convenience the plaintiff appellant is hereafter referred to as the company and the defendant appellee as the commission.
Omitting all formal parts, the company in its petition alleged that on March 1, 1924, one John G. Johannes and wife were the owners of a certain quarter section of real estate in Atchison county, Kansas, and on that date they mortgaged the real estate to the company to secure payment of a certain promissory note; that while the mortgage was in full force and effect on August 13,1929, Johannes and his wife delivered to the commission a deed conveying for highway purposes a tract of land consisting of a strip thirty-five feet in width and containing 3.133 acres, over and across the real estate first mentioned; that on October 15, 1938, the above mortgage was foreclosed in an action wherein the company was plaintiff and Johannes, the commission and other parties were defendants, and by the decree of foreclosure the commission was barred of all right, title or interest in and to the mortgaged real estate; that thereafter the real estate was sold at sheriff’s sale to the company, the sale was confirmed and no redemption having been made, on May 31, 1940, a sheriff’s deed was delivered to the company.
It was further alleged that, in spite of the fact that since May 31, 1940, the company had been the sole owner and holder of the real estate, the commission had trespassed and continued to trespass upon that part of the real estate included in the deed from Johannes to it and threatened to continue to trespass' thereon by maintaining a highway thereon, by permitting the same to be used as a highway and by using the same for a highway; that the maintaining of the highway was a continuing trespass upon the property and rights of plaintiff; that it had no adequate remedy at law and was entitled to have the commission enjoined from continuing to trespass, etc., and it prayed for relief accordingly.
The defendant commission .demurred on the grounds the petition failed to state facts sufficient to constitute a cause of action;-because plaintiff had an adequate remedy at law; and because the district court of Shawnee county was without jurisdiction of the subject matter.
The trial court, in ruling on the demurrer, pointed out no single ground, but sustained the demurrer generally.
We take up first the question of venue, and whether the court had jurisdiction of the subject matter. Under G. S. 1935, 74-2001, the commission is a body corporate with power to sue and be sued and, unless there is statutory provision to the contrary—and none applicable has been called to our attention—the only place where it can be sued is at the seat of the state government, that is, in Shawnee county. (See Verdigris River Drainage Dist. v. City of Coffeyville, 149 Kan. 191, syl. ¶ 2, 86 P. 2d 592; and cases cited; see, also, City of Coffeyville v. Wells, 137 Kan. 384, 20 P. 2d 477.) The relief sought in the present action is in personam, and if the company is entitled to such relief the proper forum is the district court of Shawnee county.
On the question whether the petition states a cause of action not much need be said. The commission, in support of the trial court’s ruling and in arguing that the company had an adequate remedy at law by way of an independent action in ejectment or by procuring a writ of assistance in the original action, says the petition asserts that the company is the owner of the real estate and that it is entitled to its possession, and argues that what the company seeks is to have the court deliver possession. Under the allegations of the petition, in the foreclosure action the commission was adjudged to have no right in the mortgaged real estate, and that included the strip of land to which the commission had a deed, and when the land was sold the purchaser at the sheriff’s sale and who later received the sheriff’s deed got title to the whole of the real estate freed from any claim of the commission.
We are not impressed by the argument of the commission that the purchaser at the sale took with notice of the highway and was charged with knowledge that the quarter section was short and knew it was not purchasing the highway. That argument would be persuasive if the commission had not been a party to the foreclosure suit and had not been barred therein. Either it defaulted in the foreclosure suit or failed to maintain its right to the highway, but whatever may have been the situation, it was effectually barred. To now say that the commission has the same rights it would have had had it not been a party or had it not been foreclosed, would be to ignore the force and effect of the judgment against it. In the situation here existing the maintenance and use of the highway constitutes a continuing' trespass, and if there be no adequate remedy at law, injunction will lie. (Webster v. Cooke, 23 Kan. 637; Mendenhall v. School District, 76 Kan. 173, 90 Pac. 773; Gano v. Cunningham, 88 Kan. 300, 128 Pac. 372; and cases cited.)
The next question is whether the facts pleaded show that plaintiff had an adequate remedy at law. Ignoring the fact that it had been barred and foreclosed of any interest in the particular real estate, the commission directs our attention to Atkinson v. Crowe, 80 Kan. 161, 102 Pac. 50, 106 Pac. 1052, 39 L. R. A., n. s., 31, 18 Ann. Cas. 242; Lawrence B. & L. Ass’n v. Taylor, 148 Kan. 331, 81 P. 2d 15; and Parris v. Oil Co., 108 Kan. 330, 195 Pac. 879; and argues this is an action for the purpose of settling a disputed question of title to real estate and to recover possession, and is in effect an action in ejectment in which it would be entitled to a trial by jury. The premise is wrong and the argument falls with it. So far as the petition discloses, the plaintiff has an indisputable claim to the real estate and its possession and is entitled to the aid of a court of equity. (See 19 Am. Jur. 122, § 120.) And because of the public interest involved, and presently to be mentioned, we do not believe that a writ of assistance in the foreclosure proceedings would have provided adequate relief.
If this action were solely between individuals and involved no matter of public interest, there would be no doubt but that the injunction sought should be granted. The company has invoked the jurisdiction of a court of equity and any relief granted must be such as the circumstances warrant and demand. The commission is a public corporation and generally all of the real estate which it may acquire is for highway right-of-way purposes. Under the allegations of the petition the piece of real estate here involved constitutes a part of the state highway system. Prior to August, 1929, the general statutes with respect to exercise of the right of eminent domain by those authorized did not require any notice to lienholders (see R. S. 26-101). It was not until 1935 that notice to lienholders was required (see G. S. 1935, 26-101), nor until 1937 that a lienholder had any right of appeal from an award made (see G. S. 1941 Supp. 26-102). tinder the provisions of Laws 1929, chapter 225, section 14, the state highway commission was given an express right to acquire real estate for highway purposes by purchase, donation, dedication or by the exercise of eminent domain in accordance with R. S. 26-101 et seq. The particular section was amended in 1931 to require notice to lienholders (see G. S. 1935, 68-413). We need not, however, treat at any length how good a right to the real estate described was acquired by the commission under the deed from Johannes and wife made in August, 1929, for in the foreclosure suit in 1938 the commission was properly made a party defendant (Provident Mutual Life Ins. Co. v. Johannes, 148 Kan. 274, 81 P. 2d 6) and ultimately it was barred of all right, title and interest in the entire tract of which the right of way was a part. Under the statutes above mentioned the commission has the power to now acquire a proper title to its right of way.
Although the commission has filed no answer in the present suit, it is clear that under present circumstances it may not assert any title in the particular strip of real estate described in the deed from Johannes. Were we to grant the specific relief prayed for, the effect would be to close the state highway until such-time as the commission could exercise its right of eminent domain, where the only issue would be the amount of the award. In our judgment it is in the public interest no injunction should be granted, but that the cause should be remanded to the trial court in order that it may hear the evidence pertaining thereto and award to the company and against the commission such sum as the company is justly entitled to under the facts and circumstances.
The ruling of the trial court sustaining the demurrer to plaintiff’s petition is- reversed and set aside and the cause is remanded for further proceedings consistent herewith.' | [
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The opinion of the court was delivered by
Dawson, C. J.:
This was an action as authorized by G. S. 1935, ■79-2801 et seq., and G. S. 1941 Supp. 79-2801, 79-2802, to foreclose Shawnee county’s tax liens on a large number of parcels of land on which the taxes had been delinquent for many years and where the ■county treasurer had bid them in for the county pursuant to G. S. 1935, 79-2301 et seq.
The action was begun on November 10, 1941. Plaintiff’s petition alleged the pertinent facts, that in 1921 the board of county commissioners had formally adopted the provisions of statute which made it the duty of the county treasurer to bid off for the county all land and lots advertised for sale for delinquent taxes and the legal charges thereon (G. S. 1935, 79-2324 et seq.), and'that all the parcels of land involved had been held by the county unredeemed for more than three and a quarter years.
The petition contained a schedule of 148- items which might be considered as separately numbered causes of action, each describing a separate parcel of land, and showing for how many years the taxes thereon had been delinquent, showing the amount of taxes assessed for each year and the interest and penalties chargeable thereto, together with the name of the record owner, supposed owners and parties known to have some interest in each particular property.
The petition concluded with a prayer requiring the defendants to appear and establish their claim, estate, right, title or interest in the real estate; that the court determine the amount of the taxes, interest and penalties chargeable to each parcel of land; that the amount so found due be adjudged to be a first and prior lien; that such lien be foreclosed and the property sold at public sale by order of court; that after such sale and confirmation of sale the defendants be barred of all interest- in the property; and that the plaintiff have such other and further relief as might be equitable and proper in the premises.
Summons was issued on November 10, 1941, to the defendants, who were all those in whose names the properties stood of record together with all others known or supposed to have an interest in the schedule of 148 items or causes of action. The sheriff made personal service on Alice L. Curtis, interested in a parcel of land ■described in scheduled item No. 15, on which the taxes had been delinquent for eighteen years, from 1922 to 1940, both inclusive, with interest and penalties chargeable thereto, in the sum of $2,649.21; also, personal service on Alice Lakin Curtis, similarly interested in parcels of land described in scheduled items Nos. 16 and 17; also, resident service on C. M. McPherson, similarly interested in scheduled item No. 15. The sheriff’s return showed that Mary L. Pullman, similarly interested in scheduled item No. 17, was “not found.”
Affidavit for service by publication was filed on December 23, 1941, and pursuant thereto publication notice was given to all the parties defendant in the foreclosure action, which notice was published in the Topeka Daily Capital on December 24 and 31, 1941, and January 7, 1942. The notice contained the proper descriptions of all the lands affected, the taxes and charges thereon, and the names of the parties defendant concerned therewith.
Answer day, February 9, 1942, passed without appearance or pleading by any of the defendants concerned in scheduled items 15, 16, and 17. Thereafter plaintiff filed a motion reciting defendants’ default of appearance. It was alleged—
“That after the preparation and filing of the petition herein the taxes for 1941 have been legally assessed and charged against said tracts of land, lots and pieces of real estate and are' past due and unpaid and constitute an additional lien and charge against the respective described properties.”
The motion prayed judgment in accordance with the petition and that the taxes of 1941 and interest thereon be'included in the judgment.
Plaintiff also filed a motion for an immediate hearing on its motion for judgment. The motion also included a verified allegation that plaintiff, did not know and with diligence had been unable to learn whether any of the defendants concerned in scheduled items 15, 16 or 17, if living, were in the military service of the United States, or if dead whether their unknown .heirs, devisees, executors,-administrators, trustees, guardians, successors or assigns were in such military service.
In support of the allegations of its petition and motion for judgment, plaintiff called as a witness an employee of the county treasurer who testified that she compiled the factual data from the treasurer’s records as set out in plaintiff’s petition and particularly in scheduled item 15 of plaintiff’s petition; that the amount of delinquent taxes, interest and other proper charges thereon was $2,649.21 down to September 2, 1941; that from the latter date down to February 15, 1942, the additional interest accrued thereon was $119.21, and that the current taxes (for 1941) which had become due since the action was begun, but which had not been paid were $24.20, and that the interest due thereon was $0.19; and that the first half of said current taxes, payable on or before December 20, 1941, was $12.10.
The same witness gave similar testimony pertinent to scheduled items 16 and 17.
The deputy clerk of the district court, called as a witness, testified that the costs already incurred in this foreclosure action and her estimate of costs yet to be incurred, based upon the experience of similar cases, would amount to $1,632.55:
“The Court: You have made a computation I suppose of the proportionate part of the costs that should be assessed against each property.
“[The County Attorney] : I have, your honor.
“The Court: How does that figure come out?
“[The County Attorney] : The figure comes out $11.03 per property.
“The Witness: I have taken into consideration in estimating this cost statement, the entry of judgment, the issuance of an order of sale, publication notice of sheriff’s sale, sheriff’s return, confirmation, etc.”
Whether the first half of the current taxes (for 1941) which had .accrued and were in default when the cause was ripe for judgment -on February 19, 1942, should be included in the amount of the judgment in each scheduled item was the only legal question which gave •the trial court any difficulty, and out of an abundance of caution the ■court ruled them out. The correctness of that ruling is .the single ■question this court is asked to consider in this appeal.
In its memorandum opinion the trial court noted that the action was begun on November 10, 1941, by which time the taxes for 1941 •were due and payable. (G. S. 1935, 79-1804.) The court also noted that the motion to include the taxes of 1941 in the judgment was :filed after the answer day had expired. The court reasoned that ■while plaintiff’s motion might be regarded as a supplemental petition, yet the court would not have jurisdiction to include the taxes for 1941 in the judgment because they were not within the scope of •the publication notice and no further notice was given to the defendants as required by G. S. 1935, 60-764. The court also reasoned ■that if the current taxes accruing in the year the tax foreclosure .suit is begun are included in the judgment and the taxpayer should .invoke his right to redeem from the judgment before the day of :sale, he would be required to waive his statutory privilege to pay but half his taxes for the current year on or before December 20, .and the second hálf on or before June 20, of the following year, and would likewise be deprived of his right to a discount of two percent «on nayment of all the taxes for 1941 by December 20.
It is just as well that the trial court held that these several mat ters required a denial of plaintiff’s motion to include the taxes of 1941 and interest in the judgment, since there was no adverse party-participating actively in the litigation and the only way to get an. authoritative ruling which would have uniform operation throughout the state in tax foreclosure cases was to enter such a judgment, as would enable the plaintiff to appeal.
As to the taxpayer’s right to pay the first half of his current taxes in December and the second half in the following June without interest or penalty and to a discount if he paid them all by December 20, we think the maxim “de minimis” should be applied. A vastly more important principle in respect to the operation of the machinery of government is to search for a practicable construction of statutory powers, duties and regulations which will permit the government to work, to work effectively; and it is perfectly obvious that the trivia relating to the taxpayer’s privileges as to how and when he shall pay his current taxes must not be given such supervening potency as to render the tax foreclosure impracticable. It. should be kept in mind that the statute contemplates that a tax foreclosure action is likely to involve scores and perhaps hundreds of causes of action against scores or hundreds of defendant owners and others claiming under them. It is a laborious work of many weeks for the county attorney and other county officials and employees to get the factual data together for inclusion in such a tax-foreclosure suit. And. of necessity, before judgment could regularly be entered in the action, the factual situation as to taxes, interest,, and charges would be in constant change, so that if judgment should be withheld until the petition could be amended or supplemented to bring it up to date, it would inevitably occur that the factual situation would again be changed before judgment could be entered. This would bring to naught the comprehensive statutory scheme supplied by the legislature to enable a county to realize on its tax liens and to get the long lists of properties of delinquent taxpayers off its hands and into the hands of new owners ready, willing and able to-pay the taxes thereon, and thus ameliorate the perplexing financial problems of county government.
The statute authorizing the foreclosure action as amended by G. S. 1941 Supp. 79-2801 does not require perfect precision of pleading in respect to the “taxes, charges, interest and penalties,” on each parcel of land on which the county has a lien but only that such statement be correct “as far as practicable.” Plaintiff’s petition. clearly satisfied that requirement. In no tax foreclosure case, nor' in any other lawsuit, is it possible when the action is filed to allege-exactly what miscellaneous charges and costs will have to be included in the judgment. The tax foreclosure statute contemplates, this. It provides:
“It shall be the duty of such district court, in as summary way as possible,. to investigate and decide what taxes shall have been legally assessed and' charged on such tract, lot, or piece of real estate, and to render judgment- therefor, together with the interest, charges and penalty thereon as provided bylaw, to the date of such judgment, . . .” (G. S. 1941 Supp. 79-2803.)
It should also be kept in mind that from the first day of November the current taxes assessed become a lien on real property, and the tax foreclosure statute has a provision which recognizes this, where-it provides that when the sale following judgment in foreclosure of liens on properties bid in by the county for delinquent taxes, the-county board may direct the sheriff to bid in the property for the-county in the event any parcel of land does not sell for an amount equal to the entire lien for taxes, penalties, interest and costs. (G. S. 1941 Supp. 79-2804.) What could be meant by the “entire” lien, except a lien which would include the lien for current taxes, and how would the sheriff know that the highest bid was not equal to the-amount of the entire lien unless it was incorporated in the judgment? Moreover, when the property has been sold and the sale-confirmed, the purchaser is entitled to a deed (G. S. 1941 Supp. 79-2804) conveying a clear title good against all the world (Van Doren v. Etchen, 112 Kan. 380, 211 Pac. 144; Rathbun v. Williams, 154 Kan. 600, 121 P. 2d 243). Who would buy if his purchase was subject to current taxes, interest and penalties, the amount of which-would have to be guessed? To insure the grantee a clear title unencumbered by current tax liens, the statute makes it the duty of the county treasurer to cancel all taxes charged against the real' estate which has been sold and conveyed pursuant to the sale in-foreclosure and confirmation thereof. (G. S. 1941 Supp. 79-2805.)
This court holds that the unpaid current taxes and interest thereon-, which accrued between the time the action in foreclosure was begun and the time the cause was ripe for judgment should be'included' in- the amount of judgment in rem rendered in favor of plaintiff. So-that this may be done this cause is remanded to the district court with instructions to modify its judgment in accordance with the.views herein, expressed.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Allen, J.:
Anna Wright brought this action to recover damages for the wrongful death of her son, Howard Wade Wright. Plaintiff’s son was killed when the automobile in which he was riding struck the livestock truck of defendant Gordon. The insurance carrier of Gordon was joined as defendant. The appeal is from a judgment in favor of plaintiff.
The collision resulting in the death of young Wright occurred about two and one-half miles east of the town of Mullinville. At Mullinville, U. S. highway No. 154 coming from the northwest and U. S. highway No. 54 coming from the southwest unite and run east as one road. East of Mullinville the highway is designated as U. S. highway No. 54.
The accident occurred at about 7:45 in the evening of February 19,1940. Plaintiff’s son was riding in a Dodge car belonging to and being driven by Carl C. Maurer. Wright and Maurer were friends and lived in Freona, Tex. They had left Freona about noon of February 19, to drive to Wichita. Wright and Maurer had driven over highway No. 54 from the southwest to Mullinville and were proceeding eastward from that town. Defendant Gordon approached Mullinville on highway No. 154 from the northwest and had proceeded eastward evidently a little ahead of the Maurer car.
When the Gordon truck had gone about two and one-half miles east of Mullinville it came to a place where a snowbank had been on the highway and where only one lane of traffic had been cut through. Gordon stopped his truck with the right wheels off the black-top pavement to allow cars that were approaching from the opposite direction to pass. Before .these cars reached the truck, the Maurer car came up from the rear and struck the left-hand rear corner of the truck with the top of the right side of the Maurer car’s windshield. Howard Wade Wright, riding in the right-hand side of the front seat as a passenger in the Maurer car, was injured and died shortly thereafter.
The petition set forth the above facts and alleged that the truck driven by defendant Gordon was a 1938 Ford truck with a stock or stake body constructed and built out of lumber; that the lumber and body were neutral in color and unpainted in any distinguishing manner; that the truck was negligently parked on the highway with the right wheels just off the edge of the slab and the major portion of the truck on the highway; that the rear of the truck was not properly marked by lights or marker lights or with lights as required by the statutes and the rules and regulations of the state corporation commission, and that the death of Wright was caused by the negligence and carelessness of Gordon in the particulars named.
The petition alleged that plaintiff’s son was twenty-eight years of age and was earning eighty-five dollars per month and that he contributed in a material way to plaintiff’s support; that he had agreed to furnish plaintiff with a home and to take care of her, and that by reason of the negligent acts of defendant Gordon, plaintiff had lost her expected home and financial assistance.
Defendants in their answer alleged that Howard Wade Wright and Carl C. Maurer were guilty of contributory negligence in operating the automobile at á high and dangerous rate of speed, and in driving at such a rate of speed that they were unable to stop the car within the range of vision of the lights of their automobile. It was also alleged that Wright and Maurer were engaged in a joint venture and that the negligence of Maurer, the driver of the automobile was, under the law, imputed to Wright.
The issues were submitted to a jury. The jury gave its verdict in favor of the plaintiff in the sum of $3,000, and returned answers to special questions.
In answer to special questions the jury found that Howard Wade Wright had planned to furnish plaintiff with a home and that after his father’s death had contributed $780 to plaintiff; that defendant Gordon had “no identification lights at top of truck at rear,” and that such failure constituted negligence which caused the death of Wright; that the truck was of such color that it had a tendency to blend with the highway and could not be distinguished until an approaching truck was almost to it; that at the time Maurer first saw the truck he was driving between 45 and 50 miles per hour; that at or immediately prior to the collision Wright exclaimed “look out”; that “failing to see the truck in time” prevented Maurer from stopping his car before reaching the truck; that Maurer was 40 or 50 feet from the truck when he first observed it, and that he applied his brakes at that time; that the lights on. the rear of the truck were burning immediately prior to the collision; that Wright was not guilty of any negligence which was one of the proximate causes of the accident; that Maurer, at the rate of speed at which he was driving, could not, in the exercise of ordinary care, have passed the truck in safety; that it would take Maurer, after first seeing the truck, one second to apply his brakes, and that driving at a speed of 50 miles per hour, under the condition of the pavement, he could have stopped his car within 150 feet after his brakes were applied. The jury found that in exercise of ordinary care it was necessary for defendant Gordon to stop his truck and that he had stopped one minute prior to the collision. The jury further found:
“15. From what point on the highway could 'Carl Maurer and Howard Wade Wright have, by the exercise of ordinary care, first seen the truck on the highway? A. 100 feet.
“17. State the distance Carl Maurer could under the exercise of ordinary care have observed objects at night with dimmers turned on. A. 200 feet.”
As shown in the abstract, Maurer, driver of the automobile, testified:
“It was customary to do that—and was watching the road directly ahead of me and didn’t see anything at all—-wasn’t worried and Wade cried ‘look out!’ and of course, I tried to see what to look out for and in an instant I saw the truck. Of course, I saw all of this in an instant because I just had an instant, and I whipped to the left to try to miss it. His right rear duals were just off the pavement. I couldn’t possibly go to the right because I didn’t have enough room but I did have a little extra room on my left-hand side. I whipped to the left and thought I had missed him, but the left-hand edge of his bed caught the right-hand corner of my windshield about three inches back from the corner—and took a slice out of it and went on back. It was the right-hand side of my car. I had put my dimmers on about three hundred yards back. It would be hard to give a description of the back of the truck in the short length of time I had. I had to see it all at one time and make up my mind. I could see the cluster of three tail lights or whatever you call them, signal lights, on the left-hand side of the one here. I could see that the right rear duals were just off the pavement. It was a dirty gray color was about all I could make up, my mind about as far as color is concerned. When I saw the cluster of lights I didn’t see the tail light on the rear of the truck. I didn’t see any lights when I first observed it and as I approached, from the time I put on my dimmers, I didn’t observe any red-lights ahead or marker lights or flares of any kind. All I know'is when I stopped, the front of my ear was pointing northeast at about 45 degree angle to the highway, and as to the north' and south and center of the road, it was practically in the center. The truck was directly to my right. That is, the back of the truck was about even with the front of my car.
“Immediately prior to the accident, when I put my dimmer on, I was going between 50 and 55 miles. The condition of the highway had been good. Had not noticed any snowbanks or ice. My lights were good, brakes were good. I had had them fixed about two months before. The cars that were meeting had not passed at the time the collision occurred. I can’t state exactly how long it was before they passed us, but two minutes or a minute, you don’t know exactly in a case like that. As to the length of time it was that Wade cried ‘look out!’ before the accident, it was just a split second. I would say we were some forty or fifty feet away when Wade said ‘look out!’ He was riding with me on the right-hand side of the car, on the front seat. I don’t know what highway we were coming to. The highway was perfect as far as driving was concerned. There had been no snow on it, nor any ice that we had noticed. I hadn’t noticed any ice up to the point of accident 'that night. There was nothing to indicate that the highway was blocked ahead. We had not heard any weather reports or warnings to the effect that the highway was blocked.
“Q. What, if anything, Mr. Maurer, prevented you from seeing that truck as you came up there, or noticing something ahead of you on the highway?
“A. Well, the only thing that I could reason—know why I could reason it out was that it didn’t have any lights. I had been driving from 55 to 57 miles per hour. That is my average speed all the time.
“Q. Were you, in your opinion, driving about that same speed immediately prior to the accident?
“A. Well, I suppose as a rule you slow down a little after dark, but I wouldn’t attempt to say that I had slowed down ten miles or five miles. I know it wasn’t any faster than that. I doubt if we were going over fifty miles an hour when we saw the wreck—I mean when we saw the truck.”
On cross-examination Maurer testified:
“I don’t .¡think there was a moon, but it wasn’t cloudy. I saw the cars coming through the lane and put my dimmers on. I don’t know how far my lights would show with the dimmers on. I would say I could see from 100 to 200' feet, but I can’t say exactly the distance. I would not even say it approximately. In other words, I don’t know and didn’t know that night how far you could see. I had been driving from fifty to fifty-seven miles per hour, which is my ordinary speed and the reason I said I was going approximately fifty miles an hour was that as a rule if you are meeting cars you will slow down some,- and my judgment is fifty miles an hour when I first saw the truck. That is, when I was forty feet from it. When my dimmers were on my lights would throw the light down and to the right and the whole pavement wasn’t lighted up. The right-hand side is brighter than the left. I don’t know how far down the pavement I could see an object as big as a truck.”
The defendant Gordon testified:
“On the back is a cluster of three lights, about a foot and a half or two feet long and three lights connected on this cluster, about six or eight inches apart. They were small lights. These were on the left-hand corner. They are called identification lights. They are at the bottom of the truck. Also on the back of the truck there were two clearance lights on each corner and a tail light. The clearance lights are little lights fastened to the sill of the truck down at the bottom of the truck, and then there is a tail light underneath which makes six lights on the rear, and in front I had two lights and the clearance light and a cluster fastened on the cab. These lights were all on one switch.”
The jury found the defendant Gordon was guilty of negligence in failing to have identification lights at the top of the truck at the rear. It is well settled that where the act found as negligence did not cause the injury complained of there can be no recovery. (Railroad Co. v. Justice, 80 Kan. 10, 101 Pac. 469; Barnhardt Glycerin Co., 113 Kan. 136, 213 Pac. 663.) It is equally well settled that where the absence of lights or signals does not prevent a driver from seeing a vehicle in time to avoid it, the absence of lights or signals cannot be said to be the proximate cause of the collision. (Eldridge v. Sargent, 150 Kan. 824, 830, 96 P. 2d 870, and authorities there cited.) It is also established that where a person drives an automobile along a highway on a dark night at such speed the car cannot be stopped or turned aside within the range of vision of the lights on his car, such person is guilty of negligence as a matter of law. (Haines v. Carroll, 126 Kan. 408, 267 Pac. 986.)
We find no testimony to support the finding that the car driven by Maurer was traveling between 45 and 50 miles per hour. He had been traveling at between 55 and 57 miles per hour until immediately before the accident—he was forty or fifty feet from the truck when Wright cried “look out!” The testimony reveals that Maurer was traveling at a speed of at least 50 miles per hour when he was forty feet from the truck. In this state of the record can it be urged that the legal cause of the death of Wright was the absence of the rear top lights on the rear of the truck? No doubt the condition of the highway, the atmospheric conditions—visibility at the time—must be taken into consideration.
The jury found that Maurer, driving at a speed of fifty miles per hour, could stop his car within 150 feet after applying his brakes. Upon the question as to the distance within which the driver of the car, in the exercise of ordinary care, could have seen the truck, the answers to questions 15 and 17 are in irreconcilable conflict. Where important special findings of fact made by a jury are wholly inconsistent judgment on the verdict cannot stand. In such case the judgment will be reversed and the cause remanded for a new trial. (Dunlap v. Railway Co., 93 Kan. 50, 143 Pac. 415; Crissey v. Loan Co., 59 Kan. 561, 53 Pac. 867; Cole v. Railway Co., 92 Kan. 132, 139 Pac. 1177.) The distance in which the truck could be seen by Maurer and Wright was important, and on that point the answers to questions 15 and 17 were wholly inconsistent.
Under the authorities cited the judgment must be reversed with directions to grant a new trial. It is so ordered. | [
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The opinion of the court was delivered by
Dawson, C. J.:
Plaintiff brought this action for damages for permanent injuries alleged to have been sustained while she was employed as a clerk and stenographer in defendant’s air-conditioned office building in Wichita.
Plaintiff alleged that for several months during 1939 and -1940 she was compelled to work in an office room where the temperature was so low that she had to wear woolen clothes and jackets; that she repeatedly complained about the cold to defendant’s officials and those in charge of the office where she worked; that her desk was so placed that she was subjected to a draft of cold air which eventually caused her to be afflicted with arthritis which affected her arms, hands, limbs, feet, neck, shoulders and back, and necessitated her going to a hospital where she was confined for 25 days and incurred large expenses for hospital and medical care; that her arthritic condition was permanent, and that she is and will continue to be permanently disabled from carrying on her occupation or any gainful employment.
Defendant filed a motion to require her petition to be made more definite and certain by stating how low the air conditioning made the temperatures where she worked, and the dates when such alleged low temperatures were maintained, and by stating the names of the officials and persons to whom she complained about the cold, and that she be required to state how cold was the air which she alleged was thrown “past the plaintiff and past the back of the plaintiff” and what there was about the installation and operation of the air conditioning which was detrimental to her health and welfare as she alleged.
This motion was overruled and defendant filed an answer which contained a general denial, and alleged that plaintiff had an operation for the removal of a kidney stone and other ailments which caused her to be off duty on many occasions. .
Defendant also ..specifically denied that the conditions under which plaintiff worked were detrimental to her health and welfare; that the air conditioning of defendant’s office building was the best system available and had been installed at a cost of $22,000 shortly before the times mentioned in plaintiff’s petition, and that defendant had incurred that expense for the particular purpose of adding to the comfort of its employees and to malee the working conditions ideal for them. Defendant also alleged that its place of business was and is a safe and comfortable place in which to work. Other paragraphs of defendant’s answer continued thus:
“5. Defendant further denies that the plaintiff was compelled to work under conditions which were detrimental to her health and alleges that' the health of the plaintiff was such that it was detrimental for her to work, and that notwithstanding such condition of plaintiff’s health the plaintiff without regard for her health continued working and thereby assumed the risk of working in a place which plaintiff alleges was detrimental to her health.
“6. Defendant alleges that the risk, if any, of being injured as complained of by plaintiff in her petition was a risk necessarily incident to her employment with defendant; that plaintiff knew the conditions existing in the office in which she worked, or by the exercise of reasonable care could have known of the conditions which she alleges were present, and to which she was exposed as complained of in her petition (but which alleged conditions' plaintiff does not admit), but notwithstanding these facts plaintiff continued to work in said office and thereby assumed the risk, if any, incident to her employment with defendant.”
Plaintiff filed a motion to strike out various allegations of the answer. This motion was overruled in part, but sustained as to paragraphs 5 and 6 quoted above. Defendant filed an amended answer to conform to the trial court’s ruling, and the issues thus made were tried before a jury which failed to agree and were discharged.
Defendant brings the record here for review of whatever errors may be presently appealable, particularly the order striking out paragraphs 5 and 6 of defendant’s answer, overruling defendant’s demurrer to the evidence, and overruling its motion for a directed verdict.
To justify the trial court’s order striking out paragraphs 5 and 6 of defendant’s answer, appellee cites the case of Caspar v. Lewin, 82 Kan. 604, 109 Pac. 657, where it was held that the common-law defenses of contributory negligence and assumption of risk are not available in an action between employee and employer for damages for breach of a statutory duty. Appellee takes the position that her action is founded exclusively on section 2 of chapter 275 of the Session Laws of 1915, entitled "An act to establish an industrial welfare commission for women, learners and apprentices, and minors, prescribing its powers and duties and providing for the fixing of wages, hours, and the standard conditions of labor for such workers: providing penalties for violations of the same.” This statute was expressly and impliedly amended in material respects by chapter 263 of the Session Laws of 1921, as both now appear in G. S. 1935, 44-639 to 44-650, inclusive. The official title of the state board originally charged with the administration of the act, after repeated changes, is now designated “The State Labor Department,” whose chief officer is the state labor commissioner. (G. S. 1935, 44-601a, G. S. 1941 Supp. 75-3401 et seq.)
Section 2 of the act (G. S. 1935, 44-640) reads:
“That it shall be unlawful to employ women, learners, and apprentices and minors in any industry or occupation within the state of Kansas under conditions of labor detrimental to their health or welfare and it shall be unlawful to employ women, learners, and apprentices and minors in any industry within the state of Kansas at wages which are not adequate for their maintenance and for more hours in any one day than is consonant with their health and welfare, except as hereinafter provided.”
Appellant contends that the statute as amended must be.read .and construed as a whole, and that one section cannot be isolated from its context and an action maintained thereon. Appellee persuaded the trial court to take a contrary view, which was the basis of its order striking out paragraphs 5 and 6 of the answer.
We regard it as fundamental that in the absence of express statutory language to the contrary a statute is to be construed as a whole, and one section cannot be excised from its context and a right or liability predicated thereon, while the remainder of the statute is ignored. In Wenger v. Taylor, 39 Kan. 754, 18 Pac. 911, it was said:
'“The general rule in the construction of a statute is, that force and effect must be given to all sections of a statute, if the same can be done without destroying the effect, intent and object with which it was enacted; and all sections of the same act must be construed in harmony with each-other, so that no part shall be held as superfluous.” (Syl. If 1.)
L'his rule of statutory construction even goes much further. As stated by Chief Justice Horton in Wren & Clawson v. Comm’rs of Nemaha Co., 24 Kan. 301, 305—
“All statutes in pan materia are to be read and construed together, as if they formed parts of the same statute, and were enacted at the same time.”
In Morrill County v. Bliss, 125 Neb. 97, 249 N. W. 98, 89 A. L. R. 932, it was said:
“Statutes relating, to the same subject, although enacted at different times, are in pari materia and- should be construed together. (Citation.) 2 Lewis’ Sutherland, Statutory Construction, 844, gives the rule: ‘Statutes which are not inconsistent with one another, and which relate to the same subject matter, are in pari materia, and should be construed together; and effect should be given to them all, although they contain no reference to one another, and were passed at different times. Acts in pari materia should be construed together and so as to harmonize and give effect to their various provisions.’ (Citations.) A statute will not be construed as repealing by implication an earlier statute, unless there is a plain and unavoidable repugnance. In State v. Omaha Elevator Co., 75 Neb. 637 [106 N. W. 979, 110 N. W. 874], we held: ‘All statutes upon the same general subject are to be regarded as part of one system, and later statutes are to be considered as supplementary or complementary to those preceding them on the same subject.” (p. 103.)
See, also, Clark v. Murray, 141 Kan. 533, 537, 41 P. 2d 1042; 59 C. J. 1042 et seq.; 25 R. C. L. 1060 et seq., and 8 R. C. L. Perm. Supp. “Statutes,” sec. 285.
Reading the pertinent statute as a whole, G. S. 1935, 44-639 et seq., it will be seen that, as expressed in its title, it is an act to establish a state board charged with the duty of concerning itself with the welfare of women, minors and others, prescribing its powers and duties, authorizing it to fix wages, hours and working conditions, and providing penalties for violations of the board’s regulations as to wrages, hours, and standard conditions. The purpose of the amendatory statute of 1921 (ch. 263) likewise relates to the powers and duties of the state board, and its text amends and supplements the legislative purposes prescribed in the original act of 1915.
It should be noted that while section 2 of the act (G. S. 1935, 44-640) declares it to be unlawful to employ women (and certain others) in industry or occupation under conditions detrimental to their health and welfare, that section prescribes no standard of conditions to which an employer must conform. Indeed no standard'is prescribed in any part of the act itself but is to be prescribed by the official board which it is the declared purpose of the act to create. Section 3 as amended (G. S. 1935, 44-643) provides:
“That the . . . [commission of labor and industry] . . . may es tablish such standard of wages, hours, and conditions of labor for women, learners and apprentices, and minors employed within this state as shall be held hereunder to be reasonable and not detrimental to health and welfare: Provided, however, The court may establish different minimum hours and standards for each class in an occupation of different localities in the state, when, in the judgment of [the commission] the different conditions obtaining justify such action.”
Section 8 as amended (G. S. 1935, 44-645) provides:
“That if after investigation . . . [commission of labor and industry] . . . is of the opinion that in any occupation the wages, hours and conditions, sanitary and otherwise, are prejudicial to the health or welfare of any substantial number of the classes of employees named in this act and are inadequate to supply the necessary cost of living and to maintain the worker in health it shall publish, a notice, not less than once a week for four successive weeks in the official state paper, that it will on a date and at a place named in said notice, hold a public meeting at which all persons will be given a hearing; and, after said publication of said notice and said meeting the [commission of labor and industry] may, in its discretion, make and render such an order as inay be proper or necessary, and require all employers in the occupation affected thereby to observe and comply with such determinations and said order. Said order shall become effective in sixty days after it is made and rendered and shall be in full force and effect on and after the 60th day following its making and rendition. The [commission of labor and industry] shall, insofar as it is practicable, mail a copy of any such order to every employer affected thereby; and every employer affected by any such order shall keep a copy thereof posted in a conspicuous place in each room of his establishment. That whenever wages, hours, or conditions of labor have been made mandatory in any occupation, upon petition of either employers or employees, the [commission of labor and industry] may at its discretion reopen the question.”
It is neither alleged nor argued that the state board (however named) has set up any standard of conditions as authorized by amended sections 3 and 8 of the act (G. S. 1935, 44-643, 44-645) for the employer of women in an office building to conform to—-which makes the instant case very different from Caspar v. Lewin, supra, so strongly relied on by the appellee. In the factory act the breach of which, with the consequent death of plaintiff’s husband, was the basis of the action in Caspar v. Lewin, the statute itself prescribed the required standard for the protection of employees—(safeguards for machinery and appliances)—to which all employers in the specified industries were required to install and maintain. So, too, in Ricci v. Mining Co., 92 Kan. 349, 140 Pac. 884, plaintiff’s action was for damages for injuries sustained when a rock fell upon him from the roof of a coal mine in which he was working. It was shown that defendant had not supplied a sufficient number of props to support the roof. The pertinent statute provided that “Every mine shall be supplied with sufficient prop timber of suitable length and size for the places where it is to be used, and kept in easy access to.” There again the statute itself supplied the standard by which the employer’s duty was to be gauged; and in such cases, where the employer violates the expressly prescribed standards of a pertinent statute, the common-law defenses of contributory negligence and assumption of risk are not available. Such is the general doctrine of the modern textbooks. Thus in Prosser on Torts, 392, it is said:
"There are certain, statutes, however, which clearly are intended to protect the plaintiff against his inability to protect himself. Such are the child labor acts, and various safety statutes for the benefit of employees, as to which the court have recognized, in this respect at least, the economic inequality in bargaining power which has induced the passage of the legislation. Since the fundamental purpose of such statutes would be defeated if the plaintiff were permitted to assume the risk, it is generally held that he cannot do so, either expressly or by implication.”
Again, in the same textbook, at pages 401-402, it is said:
“The effect of contributory negligence upon the liability of a defendant who has violated a statutory duty is primarily a matter of the legislative purpose which the court finds in the statute. . . . But there are certain types of statutes, such as the child labor acts, which are construed as intended to protect particular classes of persons against their own recognized inability to protect themselves. In such a case, as in the case of the statutes involving the age of consent, the object of. the statute itself would be defeated if the plaintiff’s fault were a defense, and the courts quite generally refused to recognize it.”
In the instant case, however, the statute prescribed no standard of conditions for the employer to obey. So far as shown by this record the state board created by the act with which we are presently concerned has not yet prescribed any standards to which the employer must conform. And until such standards are prescribed defendant cannot be deprived of the defenses of contributory negligence and assumption of risk when he is subjected to an action for damages for his failure to furnish his employee with a place to work which is not detrimental to her health and welfare.
If further argument were needed to support the conclusion just reached, it is deducible from a consideration of G. S. 1935, 44-649, which expressly gives the wage worker (woman, minor, learner or apprentice) a cause of action against the employer who has not paid the minimum wage fixed by the state board. Such action would permit a recovery of the difference between the wage paid and that fixed by the board; but even that action would not be maintainable until the state board had prescribed a minimum wage. A fortiori no statutory action is maintainable in the instant case for the reasons already stated.
The conclusion just reached will necessitate a reversal of the judgment and the question intrudes what disposition should be made of the lawsuit. Obviously it is unnecessary to consider the other errors presented for our leview. Since plaintiff based her action exclusively on section 2 of the industrial welfare act‘(G. S. 1935, 44-640), and made it clear that she was not prosecuting a common-law action against her employer for its 'negligence in failing to furnish her a safe place to work, what is there left in this case to try? It was on her insistence that she did not seek a recovery of damages at common law that she induced the trial court to strike out of defendant’s answer its pleaded defenses of contributory negligence and assumption of risk. It seems clear that final judgment must be ordered and the cause will be remanded with instructions to that effect.
Reversed with directions to render judgment for defendant. | [
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The opinion of the court was delivered by
Smith, J.:
This is a petition for a writ of habeas corpus.
The petitioner was sentenced on December 11, 1940, to be confined for a period of not less than one, nor more than three years, in the penitentiary at Lansing. He has served his minimum and was denied parole by the board of administration. With the usual allowance for good behavior he would be entitled to his release sometime in February, 1943. He advances several reasons why he should be given his release on a writ of habeas corpus at this time.
The petitioner is confined in the penitentiary and requested that he be given counsel for the presentation of this „petition. Accordingly this court assigned Mr. Robert E. Russell, a reputable and able member of the Shawnee county bar, to represent him. Mr. Russell examined the application and brief of the'petitioner which had been prepared by the petitioner himself, prepared and presented a brief and argued the case orally. He asks that the release of the petitioner be granted on the face of the record. The crime for which the petitioner was sentenced is denounced in G. S. 1935, 21-735a. That section was enacted by the legislature in 1927. It was enacted as a result of a policy which had just been put into effect wherein the county commissioners were directed to work prisoners who had been sentenced to county jails for misdemeanors. See G. S. 1935, 62-2101 and 62-2109.
All parties concede that the petitioner in this case had been sentenced to serve in the county jail a term, having been found guilty of vagrancy. It seems he left the place where he was assigned to work and was later apprehended. He was charged with violation of G. S. 1935, 21-735a. That section provides as follows:
“Thati any person confined in the county jail upon conviction for any criminal offense and who shall be compelled to work on any street, public highway, poor farm or public works under the direction of the board of county commissioners as provided by law, and who shall escape or attempt to escape from the place of such employment or in going to and from such employment, whether under guard or not, shall upon conviction of such escape or attempted escape be punished by confinement at hard labor not exceeding three year’s, or in a county jail not less than six months, to commence at the expiration of the original term of imprisonment.”
He pleaded guilty and was sentenced to serve a term of from one to three years in the penitentiary.
His first contention is that he should be allowed his freedom because he was not allowed to have counsel when -he pleaded guilty.
His counsel has attached the journal entry of judgment to his brief. This journal entry shows that he was asked by the district court whether he had any legal cause to show why judgment and sentence of the court should not be pronounced against him and that no sufficient cause was alleged by the defendant, the petitioner here. The right of counsel may be waived as many other rights. See Fairce v. Amrine, 154 Kan. 618, 121 P. 2d 256; also, Loftis v. Amrine, 152 Kan. 464, 105 P. 2d 890.
The journal entry shows that the accused was accorded the right to ask for counsel. Since he did not take advantage of that opportunity he waived it.
The petitioner’s next point is that he is charged with two offenses in the information. The information is in the following language:
“Did then and there unlawfully, willfully and feloniously escape and flee from such place of employment and custody.”
He argues that the above language in the information states a violation of G. S. 1935, 21-735, which makes it a crime to escape from jail, as well as G. S. 1935, 21-735a, which makes it a crime for one who has been assigned to work to escape or attempt to escape such employment.
We find it difficult to see that the above language charges the commission of two offenses. Furthermore, the punishment for violation of each of the above statutes is the same and that the petitioner received only one sentence, that is, for not less than one, nor more than three years confinement in the penitentiary. The punishment to which the petitioner was subjected is the criterion as to whether the defendant was prejudiced by lack of definiteness. In this information we are unable to find any prejudice.
An interesting point about this case is that neither the petitioner ■nor his counsel deny that the petitioner did leave the place where he was put at work.
The petition for a writ is denied. | [
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The opinion of the court was delivered by
Dawson, C. J.:
This is an appeal from a judgment of the district court affirming a judgment of the probate court on a final accounting of a trustee which directed her to deliver a certain trust fund to the administrator of the estate of the deceased cestui que trust.
The facts which gave rise to the legal controversy, although undisputed, will require to be stated at some length. The late Melville C. Aye died testate in Manhattan, Kan., in 1928. In 1913 and prior thereto and for sometime thereafter he had been a resident citizen of Ohio. He had a wife, a daughter named Dale Aye Smiley, and an infant grandson named James Aye Barker, son of his daughter Gertrude, Mrs. Harry D. Barker, who had died a short time previously.
Melville C. Aye was a man of means; among his possessions were nearly four thousand acres of land in the counties of Riley, Geary, and Wabaunsee, in Kansas. In April, 1913, when his grandson James Aye Barker was less than five months old, Melville C. Aye made his will, some of the terms of which will require critical attention, but first it will serve our convenience to summarize all its terms thus:
First. The testator gave all his personal property to his daughter Dale Aye Smiley, likewise all his real property except as otherwise specifically devised, but charged her with the payments of all his debts, costs of administering his estate and the expense of a suitable monument for his grave.
Second. Subject to other provisions of the will and particularly of item four, the testator devised a life estate in some 1,900 acres of land in Riley and Geary counties to his grandson, James Aye Barker, and devised the remainder estate therein and its accumulations to the heirs of the body of James in fee simple, with the pro viso that if he died without such heirs, then all of said real estate was to devolve on Dale Aye Smiley, if living, and if not then living to the heirs of her body in fee simple.
Third.. Subject to the provisions of item five, the'testator devised to Dale Aye Smiley a life estate in some 1,820 acres of land in Wabaunsee and Geary counties, and devised the remainder estate therein to the heirs of her body, in fee simple, but provided that if vhe died without such heirs, then all of said real estate was to devolve on James Aye Barker, if living, but if not then living, to the heirs of his body living or born thereafter, in fee simple.
Fourth. The testator appointed Dale Aye Smiley as trustee to take charge of all the lands described in item two of the will and to care for, operate, farm, and manage them until James Aye Barker reached his majority. Out of the gross income of the lands devised to the grandson, Dale Aye Smiley was to retain five percent of the gross annual income as her compensation. (A charge of one-half the net income of the lands devised in item two to James Aye Barker, and a similar charge of one-half the net income of the lands devised in item three to Dale Aye Smiley were made for the benefit of the testator’s wife, mother of Dale Aye Smiley and grandmother of James Aye Barker, but as she died before the testator that feature of the will may be ignored.)
The fourth item of the will also provided that the net income of the lands devised to the grandson should be applied, as far as necessary in the judgment of Dale Aye Smiley, to the support and education of James Aye Barker until he attained the age of twenty-one years; and any excess of such income not so required for the grandson’s maintenance, support and education should be carefully invested and reinvested by Dale Aye Smiley, according to her best judgment, in real-estate mortgage loans, or in farm lands to which she should take title as trustee for James Aye Barker, until he arrived at the age of thirty years, at which time the trust should be terminated and any lands so purchased by Dale Smiley, together with the fund itself, should be conveyed to James Aye Barker, his heirs and assigns in fee simple absolute. Upon James’s arrival at the age of thirty, Dale Aye Smiley “shall pay and turn over to him any and all sums and securities out of said trust funds remaining in her hands.” From the time James Aye Barker would- arrive at twenty-one years until he became thirty years of age, Dale Aye Smiley was to continue as trustee of all funds and accumulations from the lands devised to James, whether personal or real estate, or to which she might have title when he arrives at the age of twenty-one years. She was to continue to act as trustee thereof as theretofore, but with this discretion vested in her—that from time to time she could turn over and convey to James “any part or all of either the income or principal or both in her hands as such trustee.” This paragraph of the will also authorized Dale Aye Smiley, at her discretion, to pay $50 per month out of the trust funds in her hands to the testator’s son-in-law, Harry D. Barker, father of James Aye Barker, if he remained a single man and should become incapacitated before James Aye Barker attained the age of thirty years.
Fifth. This item provided that the discretion vested in Dale Aye Smiley in the latter part of item four to turn over and convey to James Aye Barker' (after he attained his majority) any part or all of the income or principal or both arising or accumulating from the lands devised by item two, should not be vested in any person who might succeed her as “trustee of the trust in item four created.”
Sixth. This provision is of no present importance.
Seventh. This paragraph made provision for another trustee in the event of the death of Dale Aye Smiley or her refusal to serve.
Eighth. In this paragraph the testator named his wife as executrix, but in the event she predeceased the testator, then his son-in-law John J. Smiley should be executor.
James Aye Barker attained his majority on December 27, 1933, and on that date he came into full legal control of the lands devised to him; but as he had not yet completed his education his aunt, Dale Aye Smiley, continued to manage his lands for him about as she had done during his minority. She collected the rents, paid the taxes and delivered to him the full net income of the property.
During the minority of James, between the death of his grandfather in 1928 and the time he became of age in 1933, there accumulated in the hands of Dale Aye Smiley out of the net income of the lands devised to James, not necessary for his support and education, a substantial amount of money, also a quarter section of land purchased with part of that money. The aggregate value of this fund in money and land was about $9,939.97.
James Aye Barker died on February 14, 1939, when he was about twenty-six years of age—some four years before the time when the fund and its accumulations amassed by his aunt as trustee during his minority should be delivered to him under the terms of his grandfather’s will.
The question in this lawsuit is what disposition should be made of this fund with its accumulations. The probate and district courts held that it should be delivered by the retiring trustee Dale Aye Smiley to the administrator of James Aye Barker’s estate. Dale Aye Smiley, trustee, contended that she personally should be adjudged to be the owner of the fund, and the rejection of that contention and the judgment in favor of the administrator form the basis of this appeal.
In support of appellant’s position, our attention is called to the provision of the will which declares that in the event of the death of James Aye Barker without heirs of his body the remainder estate in the 1,900 acres devised to him should devolve on appellant, and the argument is made that the accumulated income of those lands should follow the real estate. A necessary part of that argument is the assumption that the 1,900 acres so devised to James for life was itself trust property, but that assumption is not well founded. The language of the second item of the will making disposition of the 1,900 acres reads:
“Subject to the provisions of the other items of this my will, ... I give, devise and bequeath to my grandson, James Aye Barker, for and during the period of his natural life, the following described real estate, . . .”
How should a life estate in lands be created if not in such familiar and precise language? In 19 Am. Jur. 518, it is said:
“The ordinary form of life estate created by grant or devise is one in which property is devised or conveyed to a person to hold for the term of his own life.”
See, also, 33 Am. Jur. 465; 1 Restatement, Property, §§18, 107; 17 R. C. L. 616; 21 C. J. 938.
While it is true that in the fourth paragraph of the will Dale Aye Smiley is designated as trustee and her duties as such are prescribed —during the minority of James Aye Barker she was—
“To take and have charge and control of all the lands and real estate described in item two (2) of this my will, and the same to care for, operate, farm, manage, and to keep up until my said grandson James Aye Barker arrives at the age of twenty-one (21) years. Said Dale Aye Smiley shall, out of the gross income arising from said lands, pay all taxes, assessments, insurance, expenses and ordinary repairs, and shall retain five percent (5%) annually of such gross income as and for her compensation for the care and management thereof.”
But no trust estate in the 1900 acres was devised to Dale Aye Smiley. Her actual relation to the property was that of managing agent, as authorized by her father’s will. She was indeed the trustee of the unexpended income of James’s lands during his minority and also of the later accumulation of that income, but not technically trustee of the land itself. But whatever her technical status in relation to James’s lands during James’s minority that status ended on December 27, 1933, when he attained his majority. The trust in the lands, if trust it was—which we cannot concede—terminated on that date, not only in law, but by operative interpretation of the parties. Thence forward whatever Dale Aye Smiley did in respect to managing and handling her nephew’s lands was simply as his agent and she fully and regularly accounted to him in that capacity. One gratifying aspect of this case is the thoroughly correct course of conduct uniformly maintained by Dale Aye Smiley in whatever respects she has served under her father’s will.
Our attention is directed to a provision in the fourth item of the will where appellant was clothed with discretionary judgment as to the amount of the income of James’s lands which should be expended for his support and education during his minority. From that fact it is argued that on the death of the beneficiary his personal representative has no legal right to the unexpended income and its accumulations, and cases and textbooks are cited in support. (1 Scott on Trusts, §§ 128.3, 128.4.) We have examined some of these authorities, but find none of them in point. Thus in Garland v. Garland, 87 Va. 758, 13 S. E. 478, 24 A. S. R. 682, cited by appellant, the suit in simplified terms was one to subject certain trust funds to the satisfaction of a decree against the estate of one Burr Garland to whom a brother had made a devise in the following (abridged) terms:
“My favorite brother, B. Garland, raised by me, and long a resident of Mississippi, is, and has for a long time past been, embarrassed in debt by losses of trade in 1837, and liabilities as surety for others. It might be unsafe to devise property to him absolutely. I therefore set apart’ in trust in the hands of my executor, for the benefit of my said brother, either of my plantations in Hinds county . . . The profits of the estate is set apart' for his (B. Garland’s) use under his superintendence. ... At his death all the property in this clause is to pass to Charles Y. Morriss, in trust to the separate use of his wife, Paulina B. Morriss and her children.” (p. 760.)
The trial court held that the fund amassed from the profits set apart to the use of Burr Garland by his brother’s will became .assets of Burr Garland’s estate absolutely. But the supreme court of Virginia quite properly held otherwise because of the further testamentary disposition of the fund to follow the death of the beneficiary.
It is from such cases as the one just cited and others of the same general tenor that Professor Scott formulated the statements which appear in his monumental work on Trusts, as quoted in appellant’s brief. But in the identical sections from which she quotes, the text also states that—
“The extent of the interest of the beneficiary depends upon the manifestation of intention by the settlor. The beneficiary is not entitled to the entire beneficial interest in the trust property unless the settlor manifested an intention that he should have it." (1 Scott on Trusts, § 128.3, p. 670.) (Our italics).
“Where by the terms of the 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 may be necessary for the support of the beneficiary, the extent of the interest of the beneficiary depends upon the manifestation of intention by the settlor." (1 Scott on Trusts, § 128.4, p. 671.) (Our italics.)
Much more pertinent to the matter of present concern is the following excerpt from section 128.2 of the same learned treatise, which reads:
“Where by the terms of the trust the income of the trust property is payable to a person for a period at the expiration of which the principal is to be paid to him, he is the sole beneficiary of the trust unless there is a contingent gift over to others or a resulting trust to the settlor if the beneficiary should die before the expiration of the period. In such a case the beneficiary has the whole beneficial interest, but his enjoyment of the principal is postponed.” (1 Scott on Trusts, p. 666.) (Our italics).
One of many citations fortifying the text just quoted is Estate of Yates, 170 Cal. 254, 149 Pac. 555, where the testator made several bequests, one of which reads:
“4th. I bequeath to Jessie Maud Stephens one thousand dollar's, same to be held in trust and the principal and interest to be paid to Bartlett Stephens when he arrives at the age of twenty-five years.”
A residuary legatee of the estate appealed from an order of distribution. The supreme court’s opinion, in part, reads:
“In the fourth the bequest was in terms to a trustee, to hold the principal and accumulate' the interest and pay it to the beneficiary when he reached the age of twenty-five years. This legacy contains a similar provision for the retention and accumulation of income. . . . While a limitation of years is fixed by the terms of the trust, the ultimate duration of each trust is manifestly based upon a life in being. In each one of these cases, should the beneficiary die, the trust absolutely determines for lack of a beneficiary. . . .
“The legacies were vested. Notwithstanding the unimportant- differences in their phraseology, each and all manifest a clear intent upon the part of the testator to give the sums named to the beneficiaries. The time of payment only was postponed and trusts for accumulations created to cover the time of the deferred payment. There' was no bequest over in the event of death. Under all of the authorities the legacies vested in the legatees an absolute, indefeasible and disposable interest. (Citations, including Claflin v. Claflin, 149 Mass. 19; 1 Jarman on Wills, Bigelow’s Edition, 794.)” (pp. 255, 256.)
The more recent edition of 2 Jarman on Willis (7th ed.), p. 1331, is to the same effect. It is there said:
“[Where] a testator gave his real and personal estate, subject to certain life interests, to the children of A living at her death, ‘to be divided share and share alike when and as they shall respectively attain the age of twenty-four years, and to their respective heirs, executors, administrators and assigns.’ It was held, both as to the realty (k), and as to the personalty (1), that all the children (the youngest of whom was four years old) took vested interests at A’s death.”
It is quite true that the beneficiary of a support provided by a maintenance trust has no claim on the trust itself further than the support it provides in his behalf; and of course when the beneficiary dies his personal representative has no claim on the trust. But the trust created in the accumulations of income derived from James’s life estate was much more than a maintenance trust. Those accumulations were erected into a trust, and devised to Dale Aye Smiley as trustee for the benefit of James Aye Barker as cestui que trust; but the trust res was to vest absolutely in him, completely discharged of the trust, when he should attain the age of thirty years. Moreover, while the will provides that in the event of the death of James without heirs of his body the remainder estate in the 1,900 acres of land should pass to Dale Aye Smiley, no such provision appears respecting the ultimate disposition of the trust estate created from the accumulations of the lands devised to James. That .trust fund was to be managed and conserved by Dale Aye Smiley, as trustee, until James should attain the age of thirty years, and then the trustee “upon arrival of him the said James Aye Barker at the age of thirty (30) years, she shall pay and turn over to him any and all sums and securities out of said trust funds remaining in her hands,”—-fourth paragraph of the will. That appellant has no such favorable position in respect to the trust fund as she enjoys in respect to the remainder interest in the 1,900 acres clearly appears in the language of the second paragraph of the will where it provides:
“At the death of my said grandson, I give, devise and bequeath subject to the provisions of items four (4) and five (5) of this my will all of the above-described real estate and all accumulations then remaining therefrom to the heirs of his body in fee simple, and if he die without heirs of his body living at the time of his death, or bom thereafter, I then give, devise and bequeath all of said real estate to my daughter, Dale Aye Smiley, if she be then living, in fee simple, and if she be not then living, to the heirs of her body then living, in fee simple.”
What becomes of the trust fund and accumulations if James should die without heirs of his body? Item two of the will provides that in that event the 1,900 acres devolves on Dale Aye Smiley, but no such contingent remainder estate in the trust fund and its accumulations is created in her behalf. In 21 C. J. 945 it is said:
“In the absence of any limitation or restriction thereof, everything in the nature of income or profits accruing during the continuance of the life estate belongs to the life tenant, and at his death, if not otherwise disposed of by him, passes to his representative; . . .”
In Hooker v. Bryan, 140 N. C. 402, a testatrix devised the residue of her real estate to her nephew, upon his becoming of age, and in the meantime loaned the devised property to Ella Bonner, sister of the testatrix, until the nephew should attain the age of twenty-one years. The nephew died after the testator but before he became of age, and an action arose between the heirs of the testatrix which included Ella Bonner, and the heirs and personal representatives of the estate of the nephew. It was held that the latter should prevail. In the opinion it was said:
• “It is clear that the testator intended to give immediately the capital to the person in remainder, postponing the enjoyment only till the arrival at a particular age.” (Citing cases, including 2 Underhill on Wills, sec. 896.) (p. 405.)
The pertinent headnote, in part, reads:
“Where the nephew died after the death of the testator and before becoming 21, the court correctly adjudged that the heirs at law of said nephew were the owners of the real estate and his personal representatives the owners of the personal property.”
Counsel for the litigants debate the point whether James Aye Barker had a vested or contingent interest in the trust fund and its accumulations. Counsel for appellee contend that the fund was vested in interest in James, with postponement of possession and enjoyment until he attained the age of thirty years. There is nothing unusual about such an arrangement. In Purl v. Purl, 108 Kan. 673, 675, 197 Pac. 185, it was said:
“A devise may vest, although time of enjoyment may be postponed.”
In Kirkpatrick v. Kirkpatrick, 112 Kan. 314, 211 Pac. 146, it was said:
“Estates are said to vest in possession, and to vest in interest. An estate vests in possession when there is an accrued, fixed and indefeasible right to present enjoyment. An estate vests in interest when there is h present, accrued, fixed and indefeasible right to enjoyment at a future time.” (p. 315.)
See, also, Stevenson v. Stevenson, 102 Kan. 80, 169 Pac. 552; Caple v. Warburton, 125 Kan. 290, 264 Pac. 47; Buxton v. Noble, 146 Kan. 671, 73 P. 2d 43; Plitt v. Peppler, 167 Md. 252,173 Atl. 35, 109 A. L. R. 1, and annotation 5-66; Thompson on Construction of Wills, 597 et seq.
Appellant directs attention to the provision of the will which authorized her as trustee, at her discretion, to pay $50 per month to Harry D. Barker, if he remained single and became incapacitated, until James Aye Barker should attain the age of thirty years, “out of said trust funds in her hands to the credit of James Aye Barker,” —item four of the will. From this provision it is argued that James had only a contingent interest in the trust fund and its accumulations. That does not follow. While Dale Aye Smiley was trustee she was authorized to exercise discretionary judgment over the disbursement of the trust fund so long as she kept within the testator’s general purpose in its creation. Indeed she was authorized, at her discretion, to terminate the trust at any time after James attained his majority by delivering the entire trust fund to him. The will says:
“From the time my said grandson, James Aye Barker, is twenty-one (21) years of age until he is thirty (30) years of age my said daughter Dale Aye Smiley shall continue as trustee of all the accumulations from the lands devised to the said James Aye Barker by item two (2) of this my will, whether the same be personal or real estate in her hands, under her control, or to which she has title when he arrives at the age of twenty-one (21) years, and shall continue to act as trustee thereof as theretofore, but with this discretion vested in her; that she may from time to time as she deems proper and wise turn over and convey to him the said James Aye Barker, any part or all of either the income or principal or both in her hands as such trustee.” (Our italics.)
There was nothing contingent about the interest of James in the trust fund. It was his absolutely, with enjoyment postponed until he should attain the age of thirty, unless the trustee deemed it wise ■to turn it-over to him before that time. Moreover, it was only the unexpended portion of the income of James’s land during his minority and its accumulations which constituted the trust fund. A less prudent trustee than appellant might have disbursed all the in come during his minority, and might have handed the entire fund over to him at any time after he became of age. To such broad discretion did the testator rely on the prudence and wisdom of the trustee.
Counsel for appellant seek to construct an argument favorable to their client on what this and other courts have said in respect to spendthrift trusts. But nowhere in the will- we are considering is there any semblance of the creation of a spendthrift trust. When the will was executed James Aye Barker, the testator’s grandson, was about four months old. The infant had then recently lost its mother, daughter of the testator. And so the testator made wise but generous provision for the child—a life estate in 1,900 acres of Kansas land, and named the child’s own aunt as testamentary managing agent of that land until the child should attain his majority. Knowing that land will not lie down and die, the testator deemed it perfectly safe to have his grandson come into the complete control of the land when he became of age; but he authorized his daughter ■to create a fund out of the land’s net income during the boy’s minority and to keep it for him until he attained the age of thirty years unless she deemed it “proper and wise” to turn it over to him prior to that time.
The other arguments advanced against the correctness of the trial court’s judgment have been carefully considered, but neither time nor space will-permit their further discussion. They do not shake our conclusion that the trial court did not err. Its judgment-is therefore affirmed.
Hoch, J., not participating. | [
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The opinion, of the court w.as delivered by
Smith, J.;
For reasons deemed sufficient a rehearing was allowed in this case. The original opinion appears in 154 Kan. 316, 118 P. 2d 575. The rehearing was set down for reargument on January 22, 1942. The parties did not see fit to file any further briefs or make any further oral presentation of the issues involved at the time of that hearing. No reason appears why there should be any change in the judgment of this court.
The original judgment of reversal is adhered to. | [
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The opinion of the court was delivered by
Harvey, J.:
This is an appeal from an order of the district court, overruling a demurrer and the motion to strike a part of the counterclaim. The pleadings may be summarized as follows: Plaintiff in. its petition, filed February 6,1936, alleged it is a corporation organized and existing under the laws of Missouri, with its principal place of business at Kansas City; that it is duly qualified and licensed to do business in-Kansas; that at various times during 1928 and January, 1929, -defendant employed plaintiff to purchase and sell wheat, and corn for him on the Kansas City and Chicago markets, the defendant agreeing to pay plaintiff a commission on purchases and sales and to pay plaintiff any advances plaintiff made on account of such purchases; that pursuant to the employment plaintiff made certain purchases and sales and advanced certain sums of money, with the result that on January 18, 1929, there was due and owing to plaintiff on account of such services rendered and moneys advanced the sum of $1,393.24, which sum plaintiff duly demanded of defendant, who has failed and refused to pay; that shortly after-January 18, 1929, defendant, who was then a resident of Kansas, absented himself from the state and plaintiff was unable to get service upon him. The prayer was for judgment for the amount claimed to be due with interest.
After some procedure which' has no bearing on the present status1 of the case and for that reason need not be noted, and on August 23,. 1939, defendant filed his amended answer and counterclaim in which defendant denied the material allegations of the petition, except as specifically admitted or qualified, and specifically denied he was indebted to plaintiff in any amount, and alleged if any such indebtedness ever existed it had long since been fully paid and satisfied ; and in what is denominated a counterclaim defendant admitted the corporate existence of plaintiff, as alleged, and that defendant-had been- absent from the state of Kansas as alleged, and further-alleged that about July 31,1928, plaintiff and defendant entered into-an oral agreement whereby defendant employed plaintiff as his agent,, broker and employee to purchase and sell wheat and corn on the-Kansas City and-Chicago markets, the defendant agreeing to pay plaintiff a commission on all purchases and sales; as a part of the agreement it was agreed that defendant would advance to and deposit with plaintiff as his agent, broker and employee, money and credits from time to time with which to pay for such purchases and sales, and that all profits accruing from such purchases and sales should be retained by plaintiff as the agent, broker and employee of defendant for the purpose of buying and selling other commodities on said markets; that thereafter and at various dates up to and including February 23, 1929, in pursuance of said agreement, defendant deposited with plaintiff certain sums of money, goods and credits, including profits from purchases and sales of wheat and corn, for the purpose of buying and selling wheat and corn on the Kansas City and Chicago markets for and on behalf of defendant as his agent, broker and employee, and as such agent, broker and employee plaintiff did during the time mentioned make various and sundry purchases and sales on said markets as such agent, broker and employee with the property, funds and credits belonging to defendant-; that defendant does not know and is unable to state the exact number of such purchases, sales and transactions, or the deposits of money, goods and credits on account thereof, made prior to January 14, 1929, but alleges that on that date, as a result of deposits of money, goods and credits and profits from the purchase and sale of wheat and corn and other Board of Trade transactions, defendant' had an unencumbered credit balance on deposit with plaintiff, as his agent, broker and employee, in the amount of $5,174.11; that thereafter and until February 23, 1929, certain further and additional purchases, sales, and Board of Trade transactions and deposits of moneys, properties and credits were made by and with plaintiff as the agent, broker and employee of defendant, and in pursuance of said employment, in the aggregate amount of $18,786.55; that defendant does not know and is unable to set forth the exact nature and character or extent of the subsequent Board of Trade transactions, except the net profits and losses resulting therefrom. Certain transactions are then set out, in which it is alleged that during the period from January 14 to February 25, 1929, defendant sustained losses on account of such purchases and sales in the aggregate of $14,548.15, leaving a net balance of moneys and credits in the possession and under the control of plaintiff, as the agent, broker and employee of defendant, in the amount of $4,238.06, which plaintiff thereafter held, and continues to hold, as the agent, broker, trustee and bailee of defendant; that plaintiff has failed, neglected and refused to render an account ing and offer to settle the amount, or to notify defendant that he no longer held such funds and for the benefit of defendant; that on or about September 26, 1938, defendant made due demand upon plaintiff for an accounting and settlement of the account, which demand was and still is refused; that an itemized statement of the deposits of money and credits and profits and losses from such purchases and sales of such Board of Trade transactions, beginning with the credit balance of $5,174.11 on January 14, 1929, is attached as an exhibit; that plaintiff has during all the times mentioned, and is now, the agent, broker and employee, and trustee and bailee, of defendant, and that by reason of the premises there is due defendant the sum of $4,238.06, together with interest since September 26, 1938, for which sum defendant prayed judgment.
Plaintiff demurred to the amended counterclaim on the ground that it appears from the face thereof that the counterclaim does not state facts sufficient to constitute a cause of action against the plaintiff, and for the further reason that it appears from the face of the counterclaim that the cause of action sought to be asserted therein is barred by the statute of limitations, and also filed a motion to strike the allegations of the counterclaim to the effect that there is due and owing defendant from plaintiff the sum of $4,238.06 with interest since September 26, 1938, for the reason that it appears from the face of the counterclaim that the same is barred by the statute of limitations (G. S. 1935, 60-306), and further, that if defendant has any right to assert the cause of action alleged in his counterclaim he can assert such claim only to the extent allowed' and permitted by G. S. 1935, 60-715, and if the matters alleged in the counterclaim are within the provisions of this statute defendant may assert the same only as an offset to the recovery plaintiff is entitled to under the allegations of his petition. Plaintiff’s demurrer and its motion were overruled.
Counsel for appellant in their brief say: “Only one primary question is involved: (1) whether the defendant’s amended counterclaim states a cause of action upon an account.” They argue all it states is a cause of action upon an account which shows upon its face that it is barred by the three-year statute of limitations. (G. S. 1935, 60-306, second.)
This contention is argued at length in a brief and a reply brief. We have carefully considered the arguments and have examined the authorities cited and feel compelled to hold the point is not well taken. The word “account” is a generic term, difficult to define, having various meanings, depending somewhat upon the surrounding circumstances and the connection in which it is used. (1 C. J. S. 571.) An action on an account normally includes open account and book account, or book debt. (See 1 C. J. S. 579 et seq.) This does not mean that every type of action where one or both of the parties thereto kept some books or records is an action upon account.
Plaintiff’s demurrer to the counterclaim of necessity admits, for the purpose of the demurrer, all pertinent facts well pleaded in the counterclaim. Summarized these are: That in July, 1928, plaintiff and defendant entered into an agreement whereby defendant employed plaintiff as his agent, broker and employee to purchase and sell grain on the Kansas City and Chicago markets, and defendant agreed to advance and deposit with plaintiff, as his agent, broker and employee, moneys and credits from time to time with which to pay for such transactions, and that all profits accruing from such business should be retained by plaintiff as the agent, broker and employee of defendant for the purpose of conducting the business. The agreement was not limited to a single business transaction nor to a specified period of time. It was alleged that by February 25, 1929, plaintiff had in its hands money owing to the defendant of more than $4,000; that plaintiff never offered to pay that money to defendant, or to notify defendant that he no longer held the funds for his benefit, and that in September, 1938, defendant made demand upon plaintiff for an accounting and settlement, which demand was refused.
Since a demurrer searches the record, it may be noted that plaintiff in its petition alleged it was the agent of defendant in transacting the business referred to. It is well settled the relation of principal and agent is a fiduciary one. (Chase v. Chapman, 89 Kan. 196, 131 Pac. 615; Shaffer v. Lindsay, 114 Kan. 22, 216 Pac. 813; 2 C. J. S. 1023; Restatement, Agency, §13.) In 25 C. J. 1119 it was said respecting a fiduciary relation:
“It is a relation in which, if a wrong arises, the same remedy exists against the wrongdoer on behalf of the principal as would exist against a trustee on behalf of the cestui que trust."
In 37 C. J. 826, 827, it is said:
“The question when the statute of limitations begins to run against a right of action of a principal or client against his agent or attorney is one on which the decisions are somewhat inharmonious. . . . Much depends on the particular facts in the different cases that have arisen, and this goes to explain some of the apparent conflict. . . . Where a principal furnishes money to his agent for the purpose of having it applied to some specific purpose', such as the payment of a debt or the purchase of property on the principal’s behalf, but the agent fails so to apply the money or misappropriates it, in some jurisdictions it is held that the principal’s right of action accrues and the statute begins to run only when demand is made upon the agent, or the principal has notice of the agent’s breach of duty”; (citing Guernsey v. Davis, 67 Kan. 378, 73 Pac. 101, and other cases) “while in others it is held that the cause of action accrues and the statute begins to run when a reasonable time has elapsed for the agent to perform his duty, no demand being required.” (Citing cases from other jurisdictions.)
The principle cited in Guernsey v. Davis, supra, has been followed in a number of Kansas decisions. See Washbon v. Bank, 87 Kan. 698, 125 Pac. 17; Peyton v. Chase County Nat’l Bank, 124 Kan. 763, 262 Pac. 595; Rafter v. Hurd, 136 Kan. 127, 12 P. 2d 837.
The same principle is applied to the relation of trustee and his cestui que trust. See Green v. Williams, 21 Kan. 64; Perry v. Smith, 31 Kan. 423, 2 Pac. 784; Hunter v. Coffman, 74 Kan. 308, 86 Pac. 451; Brooks v. Campbell, 97 Kan. 208, 155 Pac. 41; Hirt v. Bucklin State Bank, 153. Kan. 194, 109 P. 2d 171.
Contending the counterclaim was barred by the statute of limitations, plaintiff, filed a motion to strike certain portions of it upon the ground that under G. S. 1935, 60-715, plaintiff, could use the counterclaim only as an offset to the sum sought by plaintiff in his petition. Since we have held the cause of action set forth in the counterclaim was not barred by the statute of limitations the section of the statute referred to has no application.
The judgment of the trial court is affirmed.
Koch, J., not participating. | [
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The opinion of the court was delivered by
Smith J.:
This was a proceeding to probate a will. The probate court admitted it to probate. On appeal the district court ordered it admitted to probate. The parties who opposed the probation have appealed to this court.
The petition for probate alleged that one Jamés Peirano was one of the devisees named in the will which was being offered; that the will was duly executed; was valid; that at the time of the execution testator was of full age, of sound mind and not under any restraint, and the testator Andrew Peirano had died on the second day of August, 1940. The petition then named all of the heirs and stated that they were all named as legatees. The will gave each one of the nephews and nieces of testator $100, left $3,000 to be used for the benefit of his brother Thomas, left his brother Charles $100 and left the residue, 75 percent to Ruth Peirano and 25 percent to James Peirano, a brother. The estate consisted of real property in the probable value of $70,000 and personal property of the probable value of $20,000.
Charles Peirano, a brother, filed an answer to this petition in which he alleged that the instrument1 was not the last will of the testator; that the testator did not at the time of its acknowledgment declare it to be his will; that he was not capable of making the disposition of the property; that he was unduly influenced in making the purported will by his sister Ruth; that the will was prepared by the principal beneficiary, who at the time was the confidential agent of the decedent and that the decedent did not know the contents of the will.
The probate court found that the will was duly executed; that the decedent at the time of the execution was a person of sound mind, of full age and under no restraint and the will was genuine.
Charles Peirano appealed to the district court. After the appeal Ruth Peirano, the executrix, and James Peirano and Ruth Peirano, legatees, filed a reply in which they denied the allegations of the answer.
The district court ordered the will admitted to probate, and the contestants of the will have appealed to this court.
The first assignment of error argued by the appellant is that the court erred in placing the burden of proof on the appellant to show that the testator was not of sound mind; that he was under restraint or under undue influence in the execution of the will and that the will was not properly attested and witnessed. We are unable to follow the'argument of the appellant in this respect.
We find the rule as to burden of proof in proceedings to probate a will stated in 2 Bartlett, Kansas Probate Law and Practice, 343, as follows:
“On a hearing for the probate of a will the burden of proof is upon the proponent of the will to show: (1) the testamentary character of the instrument, (2) the testamentary capacity of the testator, and (3) the due execution of the will in accordance with statutory requirements. These elements stand as the epitome of all the proponent is obliged to prove, and he may then rest upon the prima facie case made by this proof. It is consistent to say that this prima facie evidence stands and prevails, unless and until it is overthrown by ascertained facts.”
See G. S. 1941 Supp. 59-2224, also Pee v. Carlyle, 120 Kan. 200, 243 Pac. 296; McConnell v. Keir, 76 Kan. 527, 92 Pac. 540; and Fuller v. Williams, 125 Kan. 154, 264 Pac. 77.
The petition for probate of the will alleged that the will was duly executed; that at the time of its execution the testator was of sound mind and under no restraint and the will was genuine. Evidence was introduced by the proponents tending to prove all of the above allegations. At the conclusion of this evidence appellant here demurred to it. This demurrer was overruled. The court in overruling the demurrer properly stated that it was its duty to construe the evidence of the proponents in-its most favorable light to the party offering it; and following that rule concluded that the proponents had made a prima facie case. The rule in such cases is no different than any other trial of controverted issues of fact. The moving party may make a strong showing or a weak one,' but if there is any substantial evidence to establish his case the demurrer must be overruled.
The next assignment of error argued by the appellant is that the trial court erred in holding that the appellees made a prima facie case and in overruling the appellant’s demurrer to the evidence of appellees.
The appellee argues that this question is not properly before this court because the appellant appealed only from the judgment and not from the order overruling the demurrer of appellant to the evidence of appellee. We have heretofore held that where the appeal is from the judgment we will consider the question of whether or not the trial court committed error in overruling a demurrer of defendant to the evidence of plaintiff. (See G. S. 1941 Supp. 60-3314a; also, Drenning v. City of Topeka, 148 Kan. 366, 81 P. 2d 720.) We will, therefore, examine the question of whether or not this demurrer should have been sustained.
The testator was an aged man and had been suffering from diabetes. The will was written during the afternoon of January 27, 1940. The appellee first introduced the evidence of a resident of the county where the testator lived, who had known him for about thirty years. He testified that he heard -the testator tell the scrivener that he wanted to make a will and wanted to leave1 his property to Ruth and Jimmy with $100 apiece to his nephews; that the testator seemed to know what he wanted; that the testator was able to keep in his mind the subject of the conversation; that he saw the testator handed the will and saw him sign it. His attention was called to the fact that the “e” in the signature of the testator appeared below the other letters that comprised the signature. He said he did not know how that happened. He said that the scrivener read the will to the testator and that there was a conversation between the scrivener and testator and that he did not observe anyone exerting any influence over the testator. All the witnesses testified that it took some two or three hours for the will to be written and it was written on a typewriter in the presence of the testator.
Another witness to the will testified that the scrivener prepared the will and read it to testator, but this witness did not remember whether the testator stated that it was a will. This witness also testified that Ruth Peirano had told him to come out there and that he had told the scrivener and the other witness to come out. The scrivener testified that he went to the home of testator with three other men; that testator told him he wanted his nieces and nephews to have $100 apiece and that he wanted his brother Tom to be taken care of; that testator gave him the description of some of his land and told him how much stock he had; that he formed the opinion that the mental condition of testator was keen and alert; that he read the will to him and he expressed satisfaction with it.
The doctor who was treating testator testified that he had been treating him for diabetes and for burns and abrasions on his feet; that during the 23d, 24th, 26th, 27th and 28th of January the condition of testator was normal.
Another witness to the will testified that he went there with the scrivener and two other witnesses; that he did not go into the house until he was called in; that he saw testator sign the will and saw the other witnesses sign it; that the mind of testator was as alert as he had ever seen it.
The appellee also introduced the testimony of the scrivener, a lawyer, who wrote the will. This witness testified that the testator had consulted him several times; that when testator told him that he wanted the bulk of his estate to go to Ruth and Jim witness told Ruth to leave the room; that testator told him about some other bequests to some members of the family; that he gave him descriptions of some of his land; that he read him the will and testator expressed himself as .satisfied with it; that witness formed' the opinion that testator was keen and alert.
This testimony of the three men who were witnesses to the will and of the scrivener was considered by the court. On a demurrer to the evidence the court was under the duty to indulge all reasonable inferences that were favorable to the position of the proponents of the will and to take all of the testimony offered as true. There was ample evidence to establish a prima facie case of the elements that must be proven before a will may be admitted to probate, as required by G. S. 1941 Supp. 59-2224.
The appellant here points out various circumstances which he claims compelled the trial court to reach a different conclusion. We have examined these circumstances and find that they go more to the weight of the evidence and to the inferences to be drawn from it than to whether or not a prima facie case was made.
The next specification of the appellant is that the trial court erred in holding that the purported will was in fact the last will and testament of the testator. The basis of this argument is that the scrivener testified that when he first came into the room where testator was in bed the testator stated that he would like to have the ranch left intact; that he did not want the ranch divided up. This witness also testified that testator said Ruth should have 75 percent and Jim 25 percent; that he wanted to leave a landed estate. The appellant argues the way the will was written the land was all disposed of by a residuary clause and an undivided 75 percent given to R,uth and an undivided 25 percent to James and that no provision was made in the will for the land to be kept intact—hence, this was not the will of the testator but something that the scrivener wrote into the will different from the testator’s desires. This argument is not good for the reason that at the same conversation when the witness testified that testator said he wanted the ranch to be held intact he also testified that testator said he wanted Ruth to have 75 percent and Jim 25 percent. It is true that no provision is written into the will to carry into effect the stated wish of the testator to have the ranch held intact. However, all the provisions of the will were read to the testator and he expressed himself as satisfied with it.
Another circumstance upon which appellant places considerable emphasis is that testator said he wanted $100 left to each of fifteen nieces and nephews and only fourteen nieces and nephews were named in the will. This is obviously an oversight on the part of the old gentleman which cannot be made the basis of a judgment striking down the will.
Appellant next argues that the trial court erred in holding that it was unnecessary for the principal beneficiary and one in a position of confidence and trust to show that the testator had read or knew the contents of the will and had independent advice with reference thereto. The basis of the argument on this point is that Ruth Peirano was the principal beneficiary. She was a maiden lady and the testator was unmarried. They lived together in a farmhouse. There is some evidence that she assisted testator in looking after his affairs; that during some of the time that he was ill she wrote checks and paid the help and advised him generally as to the conduct of the affairs of the ranch. There is also some evidence that she asked the scrivener and a witness to the will to come to the house on the day the will was executed. This argument is based on G. S. 1941 Supp. 59-605. The section reads as follows:
“If it shall appear that any will was written or prepared by the sole or principal beneficiary in such will, who, at the time of writing or preparing the same, was the confidential agent or legal adviser of the testator, or who occupied at the time any other position of confidence or trust to such testator, such will shall not be held to be valid unless it shall affirmatively appear that the testator had read or knew the contents of such will, and had independent advice with reference thereto.”
The evidence of the appellant as well as that of the appellee was to the effect that when the witnesses to this will and the scrivener arrived at the home of the testator and the scrivener was advised that testator wished to leave 75 percent of the estate to Ruth, it was suggested that she leave the room and she did so. The will was written by the scrivener with suggestions from time to time from the testator. Appellant refers to the fact that Ruth was asked from time to time to furnish some descriptions of the real estate and to furnish the names of some of the nieces and nephews, but that does not establish that the will was either written or prepared by her. Furthermore, the uncontradicted evidence disclosed that the testator knew and approved the contents of the will before he signed it.
Defendant next argues that the trial court erred in refusing to admit certain evidence offered by the appellant. There was no motion for a new trial in this case—hence, the evidence which appellant argues it was error for the court to reject was not furnished the court in the form of an affidavit at the hearing of the motion for a new trial. In view of that situation we cannot review the question of whether or not the evidence should have been admitted.
Appellant next argues that the court erred in admitting incompetent evidence over the objection of the appellant. This argument relates to evidence of the witnesses to the will as to the mental competency of testator. It is questionable whether or not this error is reviewable by this court in view of the fact that no motion for a new trial was filed. However, we have considered the argument that these witnesses were not competent to testify as to the mental capacity of the testator because they had not known him long enough and had not sufficient opportunity to ascertain whether or not he was of sound mind. We have examined the record in this case and have concluded that all of these witnesses who testified as to the mental capacity of the testator had had sufficient opportunity so that they were competent to testify in this respect.
The next argument of appellant is that the court erred in sustain ing the demurrer of the appellee to the evidence of appellant. When the appellant had finished the introduction of his evidence on the question of whether this was the last will of the decedent, whether he was incompetent to make a will, and whether there had been undue influence practiced upon him, and whether the will had been written by the principal beneficiary, the appellee who was offering the will for probate demurred to it on the ground that the appellant had failed to show that the testator was not of sound mind when the will was executed; that he had failed to show any undue influence by Ruth Peirano, as alleged, and had not proven the invalidity of the will and had failed to overcome the presumption arising as to the validity of the will after' prima facie showing that the instrument was duly signed and attested by the testator in the presence of witnesses and as to the prima facie showing as to the validity of the will. See 2 Bartlett, Kansas Probate Law and Practice, 343.
The question to be determined after a trial court has held that the proponents of the will have made a prima facie showing as to its validity is whether the evidence of the contestants was sufficient to overcome that prima facie case. This is a question of fact no different than any other question of fact.
The court then made a statement that it was not necessary to weigh the evidence and that the question was whether there had been any testimony offered which broke down the prima facie case made by the proponent of the will, and announced that the demurrer to the evidence would be sustained. The court further stated at that time that judgment would be rendered to the effect that all issues were found in favor of the appellees. When the journal entry was made the court found that the demurrer should be sustained, and also found that the decedent died testate; that the will was duly executed and attested according to law; that the decedent was a person of sound mind and alert at the time of the execution of the will, of full age and under no restraint; that the will was valid and genuine and the last will of testator.
The above orders of the court had the effect of a finding of fact on the issues in favor of the proponents of the will. Moreover, we have examined this record and are unable to find any substantial evidence that the testator was not of sound mind, did not duly execute the will, was under any undue influence or that the principal beneficiary prepared the will.
The judgment of the trial court is affirmed.
Hoch, J., not participating. | [
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The opinion of the court was delivered by
Wedell, J.:
This is an appeal from an order of the district court of Leavenworth county refusing an application for a writ of habeas corpus. The court ruled the petition was insufficient to entitle the prisoner to a writ, and he appeals.
The petition, in general terms, alleged the prisoner was illegally deprived of his liberty under color of a judgment of conviction rendered in the district court of Cowley county and a subsequent commitment to the state penitentiary. A copy of the journal entry of judgment was attached to the petition. The journal entry of judgment discloses defendant was tried by a jury on the charge of burglary in the second degree, pursuant to the provisions of G. S. 1935, 21-520, and that by reason of his former conviction of a felony his sentence for the offense of second degree burglary was doubled. His petition for the writ did not allege he was not adequately represented by counsel or that he did not have a fair trial in any particular. The journal entry of judgment affirmatively discloses he was represented-by counsel and that, after a verdict of guilty, he stated he knew of no reason why sentence should not then be imposed. The recitals contained in the journal entry, including the fact of his former conviction of a felony, were not denied. In his argument, however, he states “there was no verified evidence,” concerning his previous conviction of a felony and therefore the previous offense should not have been considered in determining the sentence for the second offense. If incompetent evidence was introduced on the trial the remedy was by timely appeal. Habeas corpus is not a substitute for an appeal as a means of correcting alleged trial errors or irregularities. (Levell v. Simpson, 142 Kan. 892, 52 P. 2d 372.)
While, as heretofore stated, the petition for the writ alleged no ultimate facts which would have justified the issuance of a writ, we shall pause to set petitioner right with respect to his erroneous contention that the trial court improperly doubled the sentence for burglary in the second degree. He contends that under our law, G. S. 1935, 21-107a, in force at the time of his conviction, it was the sentence for the first offense which should have been doubled and not the sentence for the second offense. He is wrong about that. The sentence prescribed for the second offense was properly doubled. (State v. Woodman, 127 Kan. 166, 272 Pac. 132; State v. Close, 130 Kan. 497, 287 Pac. 599.)
In the second action the petitioner was charged with burglary in the second degree pursuant to G. S. 1935, 21-520. The penalty for that offense is not less than five nor more than ten years. He was, therefore, properly sentenced to a term of imprisonment in the state penitentiary for a term of not less than ten nor more than twenty years.
There is another reason which precludes the prisoner’s release. He was tried and convicted for the second offense on October 14, 1935, and so far as his petition disclosed he was not entitled to a release from the state penitentiary even though he had not been sentenced as an habitual criminal and had been sentenced only for the regular term of not less than five nor more than ten years. The maximum term under the regular sentence for a first offense of burglary in the second degree has not expired and the petition contained no allegations which required or justified his release prior to the expiration of ten years.
Petitioner argues he should have been granted a hearing and have been permitted to present evidence in support of the facts alleged in his petition. The petition alleged no facts which entitled him to a release and manifestly the granting of a hearing to permit him to establish such insufficient facts could have served no useful purpose. The order denying the writ is affirmed. | [
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The opinion of the court was delivered by
Allen, J.:
This was an action for a money judgment. Plaintiff prayed the judgment be made a lien on defendant’s interest in real estate devised to defendant and that the lien be foreclosed. Plaintiff prevailed, and defendant appeals.
The controversy arose out of the will of Reinhardt Nusz who died February 17, 1937. He left surviving him Annie Nusz, his wife; Reinhardt Nusz, a son (referred to as Hart Nusz); Katie Nusz, a daughter, also a granddaughter, Leah Nusz. Leah Nusz was the illegitimate daughter of Katie Nusz.
The testator owned about 200 acres of farm land in Sedgwick county, a residence in Wichita, and personal property. The testator bequeathed his personal property to his widow. The dispute arose out of paragraphs 4 and 5 of the will, which provide:
“4. My real estate, which consists of the following, to wit:
(Describe's farm property.)
“I hereby give, devise and bequeath unto my beloved wife, Annie Nusz, for and during her natural lifetime only, with remainder over in fee simple at her death unto my son, Hart Nusz.
“5. I hereby give and devise the following described real estate, to wit:
(Describes city property.)
unt.o my beloved wife, Annie Nusz, for and during her natural lifetime only, with remainder over as follows: Following the death of my beloved wife, my .daughter, Katie Nusz, shall have a life estate' for and during her natural lifetime only in and to an undivided one-half interest in the real estate described in this item, with remainder over in fee simple at her death unto my son, Hart Nusz. Upon the death of my beloved wife, the remaining one-half interest in the real estate described in this item shall vest in fee simple in my son, Hart Nusz. The undivided one-half interest in fee simple aforesaid and remainder over at the death of my daughter, Katie Nusz, is so left and devised by me unto my son, Hart Nusz, subject to the condition that he shall pay the sum of $100 per year for a period of ten years following my death unto Leah Nusz, daughter of Katie Nusz, or shall pay said sum to such person or persons as shall be providing a home for the said Leah Nusz: In the event that said Leah Nusz shall die prior to the expiration of said ten-year period, then my son, Hart Nusz, shall be relieved from making any further payments at her death, except that if there be a sufficient amount of said payments yet unpaid, he shall pay for her last illness and funeral, but in no event shall the said Hart Nusz be liable beyond the amount of said ten annual payments of $100 each. The devise in this item in favor of my son, Hart Nusz, is subject to the' further condition that he shall see that my daughter, Katie Nusz, is provided with a living during her lifetime.”
(The daughter Katie Nusz died January 17, 1942, after the filing of the present action.)
The plaintiff is the widow of the testator and was 86 years of age at the date of the trial.
The petition sets out the terms of the will and alleges that the interest devised to Reinhardt Nusz in the real property located in the city of Wichita “was subject to the condition and charge” that Reinhardt Nusz should make the payments to Leah Nusz as stated in the will or should pay such sums to such persons as would provide a home for her; that Reinhardt failed and neglected to provide a living for Katie; that from February 23, 1937, plaintiff has supported and provided for Katie and Leah Nusz; that a reasonable charge for support, care and maintenance of Katie is .150 per month from the date mentioned until the filing of the petition, amounting to $2,550; that plaintiff is entitled to receive the amount provided in the will for the benefit of Leah Nusz, amounting to $400 with interest. Plaintiff asked judgment for the above stated amounts and prayed the same be declared to be a charge against the above described property, and that upon failure to pay the charges the interest of defendant in the land be sold to pay the charges and for all other proper equitable relief.
The answer of defendant after a general denial, denied that it was the intention of the testator to create a charge on land devised to defendant, orto create a personal liability against defendant; alleged that defendant accepted the devise of the farm property, but denied he ever accepted or made any claim to the city property, and also denied that plaintiff was the real party in interest or was entitled to maintain the action.
This action was tried by the court without a jury. The court made findings of fact and returned conclusions of law. The appeal is from a judgment in favor of plaintiff.
Defendant contends the trial court erred in denying defendant’s request for a jury. We think the point is well taken. Our statute G. S. 1935, 60-2903, provides that issues of fact arising in actions for the recovery of money shall be tried by a jury unless a jury trial is waived. The action was for the recovery of money for services rendered by plaintiff to the daughter and granddaughter and falls within the express language of the statute. The issues raised by the pleadings determine the nature of an action, and where the issue is essentially one justiciable at common law a jury trial may be demanded as a matter of right. (Estey v. Holdren, 126 Kan. 385, 267 Pac. 1098; Hasty v. Pierpont, 146 Kan. 517, 72 P. 2d 69.)
Defendant contends he had the right to accept the devise of the farm property and to renounce the devise of the city property which was charged with an encumbrance in favor of the daughter and granddaughter of the testator. We are unable to agree with this contention. The general rule often announced by this court is that a devisee must either accept or reject the will as written. He can not accept its benefits and reject its burdens. (Selzer v. Selzer, 146 Kan. 273, 69 P. 2d 708.)
The difficult question in the case is whether it was the intention of the testator to place a personal liability on the defendant for the annuity due Leah Nusz and the support of Katie Nusz in paragraph 5 of the will, or was the city property in that paragraph alone to be charged with such payments. If personal liability was fastened on the defendant by his acceptance under the will, then a general judgment against him would subject the farm property to execution under the judgment as well as the city property.
In paragraph 4 the testator devised the farm property to the plaintiff for life with remainder to the defendant. This was a separate independent gift of the farm property.
Under paragraph 5 the plaintiff Annie Nusz was given a life estate in the city property. The daughter Katie was given a life estate in an undivided one-half with remainder in fee to the defendant. .Upon the death of the life tenant, Annie Nusz, the remaining one-half interest “in the real estate described in this item” was to go to the defendant. Paragraph 5 then recites that “the undivided one-half interest in fee simple aforesaid and remainder over at the death of my daughter Katie Nusz” is subject to the charge in favor of Leah. Up to this point it is the city property that was to stand as security for such payments. No intent is shown to impose a personal liability on the defendant for the amount due Leah.
The last clause in paragraph 5 states that “the devise in this item in favor of my son Hart Nusz” is subject to the further condition that he shall furnish Katie with a living during her lifetime.
When the entire will is examined it seems impossible to escape the conclusion that the testator intended the city property, and not the farm property, was to stand charged with the provisions for the payments to Leah and the support for Katie. There is not a word in the instrument which suggests the farm property was to be liable in’ any manner for such payments. Moreover, the plaintiff Annie Nusz was given a life estate in farm and city properties and was entitled to all of the income from the same during her life. The defendant was not to receive any income from the properties until the death of the life tenant, and so far as appears from the record, had no income from any other source.
We must conclude it was the purpose of the testator to charge the city property with the payments to Leah and the support of Katie and not the farm property. The testator specified the city property was to stand as security for the provisions made in favor of his daughter and granddaughter. It was a provision he had a right to make and the court is without power to rewrite the will.
It follows that the judgment for the amount found by the jury if any finding should be made, should be imposed as a specific lien on the city property,’ and if payment is not made as specified, such property to be sold in satisfaction of such judgment. Any judgment based on such verdict should specify it is not to be a lien on the interest of defendant in any other property.
The judgment is reversed and the cause remanded for further proceedings in accordance with the views herein expressed. | [
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