Court of Appeals

OFFICIALLY SELECTED CASES ARGUED AND DETERMINED

IN THE

COURT OF APPEALS

OF THE

STATE OF KANSAS

Reporter: SARA R. STRATTON

Advance Sheets 2d Series Volume 58, No. 1

Opinions filed in March - May 2020

Cite as 58 Kan. App. 2d

Sara R. Stratton, Official Reporter

For the use and benefit of the State of Kansas

JUDGES AND OFFICERS OF THE KANSAS COURT OF APPEALS

CHIEF JUDGE:

HON. KAREN ARNOLD-BURGER ………………… Overland Park

JUDGES:

HON. G. JOSEPH PIERRON, JR...... Olathe HON. HENRY W. GREEN, JR...... Leavenworth HON. THOMAS E. MALONE ...... Wichita HON. STEPHEN D. HILL...... Paola HON. MICHAEL B. BUSER ...... Overland Park HON. STEVE LEBEN ...... Fairway HON. MELISSA TAYLOR STANDRIDGE...... Overland Park HON. G. GORDON ATCHESON ...... Westwood HON. DAVID E. BRUNS ...... Topeka HON. ANTHONY J. POWELL ...... Wichita HON. KIM R. SCHROEDER ...... Hugoton HON. KATHRYN A. GARDNER ...... Topeka HON. SARAH E. WARNER ...... Lenexa

OFFICERS:

Reporter of Decisions ...... SARA R. STRATTON Clerk ...... DOUGLAS T. SHIMA Judicial Administrator ...... NANCY DIXON Disciplinary Administrator ...... STANTON A. HAZLETT

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KANSAS COURT OF APPEALS TABLE OF CASES 58 Kan. App. 2d No. 1

PAGE

Hanson v. KCC ...... 82 Hawkins v. Southwest Kansas Co-op Svc...... 38 Hefner v. Deutscher ...... 58 In re Care and Treatment of Ritchie ...... 189 In re Henson ...... 167 In re Marriage of Perales ...... 26 In re Tax Appeal of River Rock Energy Co...... 98 State v. Albano ...... 117 State v. Lucas ...... 34 State v. Mundo-Parra ...... 17 State v. R.W...... 135 Stormont-Vail Healthcare v. Sievers ...... 152 Strickert v. Kansas Dept. of Revenue ...... 1

(IV) UNPUBLISHED OPINIONS OF THE COURT OF APPEALS

DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

Allen v. Kansas Association of Counties ...... 121,582 Shawnee ...... 05/01/2020 Reversed Baker v. Hayden ...... 120,334 Johnson ...... 03/20/2020 Affirmed in part; reversed in part; remanded with directions Benning v. Palmer...... 120,043 Shawnee ...... 04/17/2020 Affirmed Borden-Vasallo v. State ...... 121,366 Miami ...... 05/01/2020 Affirmed Buhler v. McCormac ...... 121,360 121,843 Wyandotte ...... 03/27/2020 Appeal dismissed Burnett v. Spears ...... 121,766 Ford ...... 05/01/2020 Appeal dismissed Campbell v. Kansas Dept. of Revenue ...... 121,136 Phillips ...... 04/10/2020 Affirmed Capitol Federal Savings Bank v. Fields ...... 119,585 Douglas ...... 04/03/2020 Affirmed Chubb v. Kansas Dept. for Aging & Disability Svcs. .... 121,514 Pawnee ...... 03/13/2020 Affirmed City of Hutchinson v. Smith 119,403 Reno ...... 05/01/2020 Affirmed City of Wichita v. Ramos- Realado ...... 120,838 Sedgwick ...... 04/24/2020 Reversed; sentence vacated Clements v. KDADS ...... 121,334 Pawnee ...... 04/24/2020 Affirmed CoreFirst Bank & Trust v. Weigel ...... 120,607 Shawnee ...... 04/17/2020 Affirmed Fordham v. Kansas Dept. of Revenue ...... 121,410 Johnson ...... 05/01/2020 Affirmed Francis v. State ...... 117,531 Johnson ...... 03/20/2020 Affirmed FSST Financial Svcs. v. Native Payment Svcs...... 119,624 Johnson ...... 03/20/2020 Affirmed Harris v. State ...... 120,942 Johnson ...... 03/27/2020 Affirmed Hutcherson v. State ...... 121,137 Lyon ...... 03/13/2020 Affirmed In re A.B...... 121,748 121,749 121,750 Ellis ...... 05/01/2020 Affirmed In re A.B...... 121,474 Sedgwick ...... 04/10/2020 Affirmed In re A.H...... 121,860 Wyandotte ...... 03/13/2020 Affirmed In re A.M...... 121,822 Montgomery...... 04/10/2020 Affirmed In re A.P...... 122,173 Wyandotte ...... 05/01/2020 Affirmed In re A.R...... 121,298 Sedgwick ...... 04/24/2020 Affirmed in part; reversed in part; remanded In re C.B...... 121,873 Jackson ...... 04/10/2020 Affirmed In re C.M.W...... 120,621 Sedgwick ...... 04/10/2020 Affirmed In re Care & Treatment of Clark ...... 121,884 Wyandotte ...... 05/01/2020 Affirmed

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DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

In re Care & Treatment of Huntington ...... 121,323 Wyandotte ...... 05/01/2020 Affirmed In re Care & Treatment of Roberts ...... 121,288 Osage ...... 03/20/2020 Affirmed In re Estate of Thorn ...... 120,931 Sedgwick ...... 04/17/2020 Affirmed In re F.C...... 121,536 Leavenworth ...... 03/27/2020 Reversed; remanded with directions In re L.G...... 121,639 Reno ...... 03/27/2020 Reversed; remanded with directions In re Marriage of Catoire and Higgins ...... 120,249 Johnson ...... 03/13/2020 Affirmed In re Marriage of Plowman. 121,471 Stevens ...... 04/24/2020 Affirmed In re Marriage of Stockman 121,818 Thomas ...... 04/10/2020 Affirmed In re N.O...... 122,121 Shawnee ...... 04/24/2020 Affirmed Johnson v. Schnurr ...... 121,889 Reno ...... 04/24/2020 Affirmed Kidd v. State ...... 120,904 Sedgwick ...... 04/10/2020 Affirmed Kirk v. VIM Properties...... 120,888 Johnson ...... 05/01/2020 Affirmed Lopez v. Ultimate Construction ...... 120,919 120,922 Johnson ...... 04/24/2020 Affirmed in part; reversed in part; remanded with directions Marshall v. State ...... 120,977 Johnson ...... 04/10/2020 Affirmed McConnell v. State ...... 121,592 Sumner ...... 05/01/2020 Affirmed in part; vacated in part; remanded for further proceedings Miller's Tow and Recovery v. Adams ...... 121,604 Sedgwick ...... 04/10/2020 Affirmed Munoz v. Southwest Medical Center...... 121,024 Workers Comp. ... 03/20/2020 Affirmed Pershad v. Kansas Dept. of Revenue ...... 119,699 Sedgwick ...... 04/17/2020 Reverse; remanded with directions

Reilly v. Kansas Dept. of Revenue ...... 120,840 Johnson ...... 05/01/2020 Affirmed in part; vacated in part; remanded with directions Salcido v. State ...... 120,648 Wyandotte ...... 04/17/2020 Affirmed

(VI) DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

Scofield v. Kansas Employment Security Bd. of Review ...... 120,579 Marion ...... 04/24/2020 Reversed Spangler v. State ...... 120,137 Shawnee ...... 03/13/2020 Affirmed Spooner v. State ...... 121,036 Sedgwick ...... 04/24/2020 Affirmed State v. Abbott ...... 120,614 Sedgwick ...... 03/20/2020 Sentence vacated; case remanded with directions State v. Acree ...... 120,562 Saline ...... 03/20/2020 Affirmed State v. Applebee ...... 120,985 Shawnee ...... 03/13/2020 Affirmed State v. Baker ...... 119,832 Douglas ...... 04/03/2020 Appeal dismissed State v. Bateast ...... 120,120 Crawford ...... 04/24/2020 Appeal dismissed State v. Benne ...... 121,240 Sedgwick ...... 04/24/2020 Appeal dismissed State v. Bermudez ...... 121,104 Lincoln ...... 04/17/2020 Affirmed State v. Billoups ...... 120,040 Sedgwick ...... 04/24/2020 Affirmed in part; dismissed in part; sentence vacated; case remanded with directions State v. Blasingame ...... 121,028 121,029 121,030 Shawnee ...... 03/13/2020 Affirmed State v. Blocker ...... 120,697 Sedgwick ...... 04/10/2020 Affirmed State v. Bronnenberg ...... 121,453 Montgomery...... 04/24/2020 Affirmed State v. Bronnenberg ...... 121,452 Montgomery...... 04/24/2020 Affirmed State v. Brown ...... 120,457 Seward ...... 04/10/2020 Affirmed State v. Brown ...... 120,698 Sedgwick ...... 04/17/2020 Affirmed State v. Brown ...... 120,590 Sedgwick ...... 04/17/2020 Affirmed in part; vacated in part; remanded with directions State v. Buckley ...... 120,532 Sedgwick ...... 04/03/2020 Affirmed in part; vacated in part; remanded with directions State v. Bulk ...... 121,783 Clay ...... 04/10/2020 Affirmed State v. Bunyard ...... 120,163 Sedgwick ...... 03/20/2020 Appeal dismissed State v. Butler ...... 121,654 Sedgwick ...... 04/17/2020 Affirmed State v. Campbell ...... 120,811 120,812 120,813 Wyandotte ...... 03/27/2020 Affirmed State v. Cash ...... 121,467 Johnson ...... 03/27/2020 Affirmed State v. Cephas ...... 120,557 Riley ...... 03/20/2020 Affirmed State v. Charles ...... 120,832 Sedgwick ...... 04/17/2020 Affirmed State v. Clark ...... 121,789 Reno ...... 04/17/2020 Sentence vacated; case remanded with directions

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DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

State v. Clayton ...... 120,912 Shawnee ...... 04/24/2020 Affirmed State v. Copridge ...... 121,122 Sedgwick ...... 03/20/2020 Reversed; remanded with directions State v. Corbitt ...... 121,625 Lyon ...... 04/17/2020 Affirmed State v. Corwin ...... 121,817 Mitchell ...... 04/24/2020 Affirmed State v. Cowan ...... 121,437 Douglas ...... 03/13/2020 Affirmed State v. Cox ...... 120,852 Reno ...... 04/24/2020 Reversed; remanded with directions State v. Culifer ...... 121,071 121,072 121,073 121,074 Saline ...... 05/01/2020 Affirmed State v. Darby ...... 121,124 Saline ...... 03/13/2020 Affirmed State v. Davidson ...... 121,637 Reno ...... 04/24/2020 Affirmed State v. Davis ...... 121,054 Brown ...... 05/01/2020 Affirmed State v. Dillon ...... 121,670 Wyandotte ...... 05/01/2020 Affirmed State v. Dunn ...... 121,265 Sedgwick ...... 04/10/2020 Affirmed State v. Ellis ...... 120,733 Sedgwick ...... 04/24/2020 Affirmed State v. Figures ...... 120,352 Sedgwick ...... 05/01/2020 Affirmed State v. Gardner ...... 119,680 Cowley ...... 05/01/2020 Affirmed State v. Grado ...... 119,288 Sedgwick ...... 03/13/2020 Affirmed State v. Griffin ...... 120,747 Douglas ...... 04/10/2020 Affirmed State v. Grubb ...... 120,490 Ellis ...... 04/10/2020 Affirmed State v. Gulick ...... 121,672 Sedgwick ...... 05/01/2020 Affirmed State v. Harbacek ...... 121,218 121,259 Reno ...... 04/17/2020 Affirmed State v. Harris ...... 121,933 Sedgwick ...... 04/17/2020 Affirmed State v. Harris ...... 120,197 Crawford ...... 03/27/2020 Affirmed State v. Haskell ...... 121,280 Douglas ...... 03/13/2020 Affirmed in part; dismissed in part State v. Hayes ...... 120,741 Sedgwick ...... 03/20/2020 Affirmed State v. Heineken ...... 121,896 Clay ...... 04/03/2020 Reversed; remanded with directions State v. Henderson ...... 120,213 Douglas ...... 03/27/2020 Affirmed State v. Henning ...... 120,596 Geary ...... 04/10/2020 Affirmed; remanded with directions State v. Hensley ...... 120,735 Sedgwick ...... 04/10/2020 Affirmed State v. Hernandez ...... 120,254 Wyandotte ...... 04/03/2020 Affirmed State v. Hicks ...... 120,834 120,835 120,836 Sedgwick ...... 04/03/2020 Affirmed State v. Hope ...... 121,246 Johnson ...... 03/27/2020 Affirmed State v. Hutchens ...... 119,661 Pawnee ...... 03/20/2020 Affirmed State v. Jaillite ...... 120,426 Douglas ...... 04/03/2020 Affirmed

(VIII) DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

State v. Jefferson ...... 120,672 Sedgwick ...... 05/01/2020 Affirmed State v. Johnson ...... 113,228 Sedgwick ...... 05/01/2020 Affirmed in part; reversed in part; vacated in part; remanded with directions State v. Kellum ...... 119,809 Wyandotte ...... 04/03/2020 Affirmed State v. Klenklen ...... 120,221 Jefferson ...... 03/27/2020 Affirmed State v. Knittle ...... 120,577 Sedgwick ...... 04/24/2020 Affirmed State v. Koch ...... 121,003 Cloud ...... 03/20/2020 Affirmed State v. Kramer ...... 120,746 Sedgwick ...... 04/17/2020 Affirmed State v. Laffoon ...... 120,583 Bourbon ...... 04/03/2020 Affirmed State v. Long ...... 121,594 Reno ...... 03/13/2020 Affirmed State v. Louis ...... 121,339 Wyandotte ...... 04/10/2020 Affirmed State v. Lukone ...... 120,808 Reno ...... 03/13/2020 Sentence vacated; case remanded with directions State v. Lutchka ...... 120,877 Sedgwick ...... 04/10/2020 Affirmed State v. Lyon ...... 120,141 Sedgwick ...... 04/10/2020 Affirmed State v. Madacs ...... 121,272 Saline ...... 03/13/2020 Affirmed State v. Mann ...... 120,937 Shawnee ...... 03/27/2020 Appeal dismissed State v. Martinez ...... 120,574 Sedgwick ...... 04/24/2020 Affirmed State v. Martinez ...... 120,804 Sumner ...... 04/17/2020 Affirmed State v. McCarley ...... 119,960 Lyon ...... 03/13/2020 Sentence vacated; case remanded with directions State v. McComber ...... 121,198 Chase ...... 05/01/2020 Appeal dismissed State v. Mills ...... 121,648 Sedgwick ...... 04/17/2020 Appeal dismissed State v. Mitchell ...... 120,702 Saline ...... 05/01/2020 Affirmed State v. Moore ...... 118,607 Reno ...... 04/10/2020 Affirmed State v. Muffoletto ...... 120,573 Johnson ...... 05/01/2020 Sentence vacated; remanded with directions State v. Mullens ...... 121,311 Shawnee ...... 04/10/2020 Affirmed State v. Mulloy ...... 120,539 Johnson ...... 03/13/2020 Affirmed in part; dismissed in part State v. Parsons ...... 121,134 Atchison ...... 03/20/2020 Affirmed State v. Prebble ...... 121,229 Reno ...... 03/13/2020 Affirmed State v. Purdy ...... 119,872 Jackson ...... 04/17/2020 Affirmed State v. Raimo ...... 119,822 Johnson ...... 04/03/2020 Affirmed State v. Rajewski ...... 121,463 Sedgwick ...... 05/01/2020 Affirmed State v. Ransom ...... 120,067 Sedgwick ...... 04/17/2020 Affirmed State v. Ratliff...... 121,800 Wyandotte ...... 05/01/2020 Reversed; remanded with directions State v. Reed ...... 121,225 121,226 Sedgwick ...... 04/24/2020 Appeal dismissed State v. Reed ...... 120,219 Sedgwick ...... 04/24/2020 Affirmed

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DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

State v. Richmond ...... 120,944 Geary ...... 03/27/2020 Affirmed State v. Rivera ...... 120,737 Finney ...... 04/10/2020 Affirmed State v. Roberson ...... 121,307 Sumner ...... 04/10/2020 Appeal dismissed State v. Rogers ...... 120,353 Butler ...... 03/20/2020 Affirmed State v. Salazar-Moreno ..... 119,702 Reno ...... 04/10/2020 Affirmed State v. Samuels ...... 120,853 Johnson ...... 05/01/2020 Affirmed State v. Sanders ...... 121,498 Coffey ...... 04/17/2020 Affirmed State v. Serrano ...... 120,965 120,966 Wyandotte ...... 03/27/2020 Affirmed State v. Shannon ...... 121,390 Saline ...... 03/13/2020 Affirmed State v. Shinn ...... 120,960 Butler ...... 03/13/2020 Affirmed State v. Stanford ...... 121,083 Harvey ...... 05/01/2020 Affirmed State v. Staten ...... 120,884 Sedgwick ...... 04/10/2020 Appeal dismissed State v. Stevenson ...... 120,284 Shawnee ...... 03/27/2020 Affirmed State v. Stewart ...... 120,659 Geary ...... 03/20/2020 Affirmed State v. Stewart ...... 120,555 Bourbon ...... 04/03/2020 Affirmed State v. Sylvester ...... 121,381 Sedgwick ...... 04/03/2020 Affirmed in part; dismissed in part State v. Toles ...... 121,775 Sedgwick ...... 04/24/2020 Affirmed State v. Vannostrand ...... 120,941 Lyon ...... 04/24/2020 Appeal dismissed State v. Vasquez ...... 121,202 Finney ...... 04/10/2020 Affirmed State v. Walker ...... 120,780 Sedgwick ...... 04/10/2020 Affirmed State v. Wasson ...... 120,172 Johnson ...... 03/13/2020 Affirmed State v. Webb ...... 119,827 Wyandotte ...... 04/24/2020 Affirmed State v. White ...... 121,499 Butler ...... 03/27/2020 Affirmed State v. White ...... 120,719 Sedgwick ...... 04/17/2020 Affirmed State v. Williams ...... 120,592 Montgomery...... 04/17/2020 Appeal dismissed State v. Wolf ...... 121,102 Lyon ...... 04/10/2020 Affirmed Steinlage v. Kansas Dept. of Revenue ...... 120,998 Nemaha ...... 03/13/2020 Affirmed Torres v. De Santiago ...... 121,117 Sedgwick ...... 04/03/2020 Reversed Tran v. Figueroa ...... 119,799 Johnson ...... 04/24/2020 Reversed; remanded Walker v. Kansas Dept. of Revenue ...... 120,470 Shawnee ...... 05/01/2020 Affirmed Wheeler v. State ...... 120,981 Wyandotte ...... 04/03/2020 Affirmed Whittker v. State ...... 120,140 Sedgwick ...... 04/24/2020 Affirmed

(X) SUBJECT INDEX 58 Kan. App. 2d No. 1

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ADMINISTRATIVE LAW:

Driver's License Suspension—Appellate Review. An appellate court reviews a district court's decision in a driver's license suspension case to determine whether it is supported by substantial competent evidence. Substantial competent evidence is legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. Strickert v. Kansas Dept. of Revenue …………... 1

— Review by District Court. K.S.A. 2019 Supp. 8-259(a) requires the district court to review an agency's decision to suspend a driver's license by trial de novo to the court. Strickert v. Kansas Dept. of Revenue …………………..………..... 1

Interpretation of Administrative Regulations—Appellate Review. Any issues before this court requiring interpretation of administrative regulations raise questions of law subject to unlimited review. Appellate courts no longer extend deference to an agency's interpretation of statutes or regulations. In re Tax Appeal of River Rock Energy Co. ……………………… 98

Kansas Judicial Review Act—Appellate Review. In an appeal from an administrative decision under the Kansas Judicial Review Act, appellate courts exercise the same statutorily limited review of the agency action as the trial court—as though the appeal had been made directly to the appellate court. The burden of proving the agency's decision was erroneous lies with the party asserting the error. Hanson v. KCC …………………………....82

— Authority of KCC—Appellate Review. Although the Kansas Corporation Commission is charged with interpreting and applying the statutes governing its authority, Kansas courts give no deference to agencies' interpretation of statutory language. Instead, statutory interpretation is a quintessentially legal question over which appellate courts' review is unlimited. A claim under K.S.A. 77-621(c)(4) that an agency erroneously interpreted and applied the law is reviewed de novo. Hanson v. KCC …………………………………………….…………….…..82

— Review of BOTA Rulings. The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs appellate review of rulings by the Kansas Board of Tax Appeals. In re Tax Appeal of River Rock Energy Co. ……………………...... 98

APPEAL AND ERROR:

Abatement of Filing Fees. Filing fees that exceed the reasonable costs of administering an appeal amount to an unconstitutional tax and revenue-generating measure. In re Tax Appeal of River Rock Energy Co. ……………..… 98

Determination whether Substantial Competent Evidence Supports Dis- trict Court's Findings—Appellate Review. In determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be

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XII SUBJECT INDEX 58 KAN. APP. 2d

PAGE

drawn from it. Appellate courts are expected to give deference to the fact- finder who was in the courtroom when the testimony was given and where the inferences from the facts were reached. Strickert v. Kansas Dept. of Revenue …………………………………………. 1

APPELLATE PROCEDURE:

Attorney Fees on Appeal—Compliance with Rule 7.07. A party seeking attorney fees on appeal must comply with Supreme Court Rule 7.07(b)(2) (2020 Kan. S. Ct. R. 50). An attorney's verification does not meet that Rule's requirement of an affidavit. In re Henson ……………………………………………..…… 167

CONSTITUTIONAL LAW:

Right against Self-Incrimination—Burden on State to Prove State- ments are Voluntary. The touchstone consideration in cases involving issues of self-incrimination is voluntariness. The burden is on the State to prove—by a preponderance of the evidence—that confessions or inculpatory statements made to law enforcement officers are voluntary. State v. R.W. ……………………………………………………….….. 135

— Constitutional and Statutory Right. The Fifth Amendment to the United States Constitution protects an individual's right against self-incrimination. This right is extended to the states through the Fourteenth Amend- ment. The Kansas Legislature has codified the right against self-incrimination in K.S.A. 60-460(f). State v. R.W. …………………………..…….. 135

CONTRACTS:

Anticipatory Breach Doctrine—-Completed Breach of Contact. The doctrine of anticipatory breach requires a complete renunciation of the person's obligation under a contract before performance of the contract is due. Because an anticipatory breach requires a complete renunciation of the person's obligation under a contract, an anticipatory breach is considered a completed breach of contract under Kansas law. Hefner v. Deutschner ………………………………………………..…. 58

Employment Contract—Threatened Breach of Contract. A threatened breach of contract as stated under the parties' employment contract is something distinct from a completed breach of contract. Moreover, the phrase "threatened breach of contract" includes a broad range of acts that communicate or express an intent to violate the employment contract. Hefner v. Deutschner …………………..…. 58

— Threatened Breach Not Same as Anticipatory Breach Doctrine. In this case, the phrase "threatened breach of contract" as stated in the parties' employment contract is not equivalent to the doctrine of anticipatory breach. Hefner v. Deutschner …………………………………………………….…. 58

Employment Contract Breach—Facts in Dispute in This Case. In this case, whether the moving party threatened to breach his employment contract by obtaining a tradename and searching for future office space constituted a material fact in dispute. Hefner v. Deutschner ………………………………………….…. 58

58 KAN. APP. 2d SUBJECT INDEX XIII

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Interpretation---Determination of Parties' Intent. The most important rule when interpreting written contracts is to ascertain the parties' intent through the plain language of the written contract if possible. The law favors reasonable interpretations over absurd interpretations of a written contract. Hefner v. Deutschner …………………………………………………….…. 58

CRIMINAL LAW:

Criminal Possession of Weapon—Definition of Knife. The folding knife in this case—which is 9 inches long when unfolded (5 1/2 inches when closed) with a 4-inch blade—is a dangerous or deadly cutting instrument of like character to those listed in K.S.A. 2017 Supp. 21-6304(c)(1). State v. Lucas ………………………………………………………….... 34

Custodial Interrogation—Risk of Isolation to Juvenile. Even for an adult, physical and psychological isolation during a custodial interrogation can undermine an individual's will to resist and compel a person to speak when they would not otherwise do so freely. The risk of such isolation is even more troubling when the subject of the interrogation is a juvenile. State v. R.W. ……………………………………………………..…….. 135

Custodial Interrogation of Juvenile. Statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of a custodial interrogation have the potential to render a confession or inculpatory statement involuntary. State v. R.W. ……………………..……….. 135

Determination Whether Statements are Voluntary—Nonexclusive Fac- tors. Generally, courts determine whether confessions or inculpatory statements made to law enforcement officers are voluntary by looking to the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interview; (3) the accused's ability to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the officer's fairness in conducting the interview; and (6) the accused's fluency with the English language. State v. R.W. …….….. 135

— Totality of Circumstances. Courts look at the totality of the circumstances on a case-by-case basis to determine whether impermissible coercion was present and whether that coercion overbore the defendant's free and independent will. Impermissible coercion can be either mental or physical. State v. R.W. ……………………………………………..……….. 135

Driver's License Suspension—Reasonable Grounds Standard Same as Probable Cause Standard. Probable cause is the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime. In the context of the driver's license suspension statute, the reasonable grounds standard is essentially the same as the probable cause standard. Strickert v. Kansas Dept. of Revenue ………………………………. 1

XIV SUBJECT INDEX 58 KAN. APP. 2d

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Kansas Sentencing Guidelines Act—Constitutional Challenge to Sen- tence Fails. The sentencing court's use of judicial findings of prior convictions to sentence a defendant under the Kansas Sentencing Guidelines Act does not violate section 5 of the Kansas Constitution Bill of Rights. State v. Albano ………………………………………………………… 117

Request for Postconviction Discovery—Appellate Review. An appellate court reviews the district court's ruling on a request for postconviction discovery only for abuse of discretion. State v. Mundo-Parra …………..…17

— Good-Cause Showing Requirement. Postconviction discovery sought by the defendant should be allowed when the defendant shows that it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing by identifying the specific subject matter for discovery and explaining why discovery about those matters is necessary to protect substantial rights. State v. Mundo-Parra …….………………..… 17

Validity of Confession or Statement of Juvenile—Considerations. When the accused is a juvenile, courts must exercise the greatest care and heightened sensitivity in assessing the validity of a confession or inculpatory statement made to law enforcement officers. In cases involving the custodial interrogation of juveniles and if legal counsel is not present, courts not only must make sure that a confession or inculpatory statement was not coerced but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair. State v. R.W. …………….………………………………….. 135

Voluntariness of Juvenile's Confession—Factors. In assessing the voluntariness of a juvenile's confession or inculpatory statements, courts are to consider five additional nonexclusive factors: (1) the juvenile's age; (2) the length of questioning; (3) the juvenile's education; (4) the juvenile's prior experience with law enforcement officers; and (5) the juvenile's mental state. State v. R.W. ………………………………………………….….. 135

DIVORCE:

Division of Property. The division of property in a divorce must be equitable but need not be equal. In re Marriage of Perales ………………… 26

— Appellate Review. An appellate court reviews the division of property in a divorce for abuse of discretion, so the award may be reversed only if it depends on an error of fact or law or if no reasonable person would agree with it. In re Marriage of Perales …………………………….……….… 26

— No Abuse of Discretion in this Case. On the facts of this case, the district court did not abuse its discretion in awarding virtually all of the marital property to one spouse. In re Marriage of Perales ………..………….… 26

GARNISHMENTS:

Burden on Judgment Debtor to Prove Exemption. The judgment debtor has the burden to show some or all of the subject property is exempt from garnishment. Stormont-Vail Healthcare v. Sievers …………...……………. 152

58 KAN. APP. 2d SUBJECT INDEX XV

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Nonwage Garnishment. K.S.A. 61-3505 controls nonwage garnishments. Stormont-Vail Healthcare v. Sievers ………………………………….……. 152

Wages Not Identified as Earnings under Statute. Once wages are deposited into a bank account, they lose their identity as "earnings" as defined under K.S.A. 2019 Supp. 60-2310(a)(1). Stormont-Vail Healthcare v. Sievers ……………………………….………. 152

JUDGMENTS:

Motion to Set Aside Judgment—Statutory Requirement to Timely File. A K.S.A. 60-260(b) motion must generally be filed "within a reasonable time." But a void judgment may be set aside at any time. In re Henson …………………………………………………………... 167

Void Judgment Lacks Validity. A party's voluntary payments under a void judgment do not amount to acquiescence under the law because a void judgment has no legal force or validity. In re Henson ……………………... 167

— In re Henson ………………………………………………………... 167

JURISDICTION:

Child Support Orders—Modifications Prohibited under FFCCSOA. Un- der the Full Faith in Credit for Child Support Orders Act, modifications are prohibited unless the exceptions are satisfied. In re Henson ……………….… 167

Continuing Jurisdiction in Issuing State unless Written Consent. The issuing state retains continuing, exclusive jurisdiction to modify child support orders as long as one of the parties to the order continues to reside in the initiating state, unless all parties file written consent to jurisdiction in another state. In re Henson ……………………………………………… 167

Enforcement of Child Support Orders from Another State. The Full Faith in Credit for Child Support Orders Act establishes a general rule requiring a state to enforce the child support order of another state. See 28 U.S.C. § 1738B(a)(1). It further prohibits a state from modifying another state's child support order if the issuing state has "continuing, exclusive jurisdiction" over the matter. In re Henson ……………………………..… 167

Lack of Subject Matter Jurisdiction—Void Order. An order made by a court that lacks subject matter jurisdiction is a void order. In re Henson ……………………………………………………………... 167

Modification of Child Support Orders—Preemption of State Law. The Full Faith in Credit for Child Support Orders Act preempts state law with respect to the modification of child support orders in a Uniform Reciprocal Enforcement of Support Act enforcement action. In re Henson ………… 167

Subject Matter Jurisdiction Issue. Subject matter jurisdiction may be raised at any time, even for the first time on appeal. In re Henson …...… 167

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KANSAS CORPORATION COMMISSION:

Broad Authority under Statutes. K.S.A. 66-1,205(a) defines the circumstances under which the Kansas Corporation Commission may review a complaint involving a natural gas public utility's rates, rules, regulations, practices, or acts. The text of K.S.A. 66-1,205(a) does not limit the Com- mission's regulatory authority to a rate-reviewing function. Instead, it provides the Commission broad authority to determine whether any rule and regulation, practice, or act whatsoever is in any respect unreasonable, unfair, or unjust. Hanson v. KCC ………………………………………..… 82

Statutory Authority to Investigate Remedies for Best Interest of Public. K.S.A. 66-1,206 vests the Kansas Corporation Commission with authority to craft a remedy when a natural gas public utility's rates or practices are found to be unreasonable, unjust, or unfair. This allows the Commission to investigate potential courses of action—whether some form of refund, rate adjustment, penalty, or other remedy—and determine which is in the best interest of the complainants and the public. Hanson v. KCC ………….... 82

Statutory Authority to KCC to Supervise Natural Gas Public Utilities. Kansas law gives the Kansas Corporation Commission full power, authority, and jurisdiction to supervise and control natural gas public utilities in this state, empowering the Commission to do all things necessary to carry out this responsibility. Hanson v. KCC …………………………………. 82

Statutory Charge to Review Rates and Oversee Utilities' Practices— Liberal Construction. Kansas statutes direct the Kansas Corporation Com- mission not merely to review the rates charged by natural gas public utilities in this state, but also to oversee the utilities' practices to ensure they are not in any respect unreasonable, unjust, or unfair. If the Commission finds any practice deficient, it may correct the utility's error as it determines to be just, the Commission can carry out its statutory charge. Hanson v. KCC ……. 82

MOTOR VEHICLES:

Driver's License Suspension—Factors for Proper Suspension. Suspension of a driver's license is proper if (1) the law enforcement officer had reasonable grounds to believe the driver operated a vehicle while under the influence of alcohol, (2) the driver was arrested for an alcohol-related offense and there was probable cause to effectuate that arrest, (3) the driver was presented with the required oral and written notices, and (4) the driver refused to submit to the requested breath test. Strickert v. Kansas Dept. of Revenue …………………………………….. 1

OIL AND GAS:

Determination of Fair Market Value. Substituting the minimum lease value for the working interest subtotal restricts full consideration of two factors under K.S.A. 79-331(a)—the cost of operation and the character of the market. In re Tax Appeal of River Rock Energy Co. ……………….. 98

58 KAN. APP. 2d SUBJECT INDEX XVII

PAGE

Determination of Fair Market Value of Oil and Gas Wells and Leases. The requirement to use the greater of the minimum lease value or the working interest subtotal (actual gross working interest value) strips the appraiser of the ability to reconcile the two values to determine a reasonable fair market value of the property. In re Tax Appeal of River Rock Energy Co. …………………………….. 98

Fair Market Value of Oil and Gas Wells and Leases. Statutorily, oil and gas wells and leases are appraised in accordance with K.S.A. 79-331(a) and K.S.A. 79-503a in order to reach the actual fair market value in the marketplace as opposed to a fictional, unrealistic, or arbitrary determination. In re Tax Appeal of River Rock Energy Co. ……………………………. 98

PERSONAL PROPERTY:

Appraisal of Personal Property—Fair Market Value. K.S.A. 79-501 requires personal property to be appraised at its fair market value in money. In re Tax Appeal of River Rock Energy Co. …………………………….. 98

SEARCH AND SEIZURE:

Traffic Stop—Reasonable Suspicion Requirement. A routine traffic stop is a seizure within the meaning of the Fourth Amendment to the United States Consti- tution; therefore, to comply with its strictures, the officer conducting the stop must have a reasonable and articulable suspicion that the driver has committed, is committing, or is about to commit a crime. Courts evaluate the existence of a reasonable suspicion under a totality of the circumstances analysis that requires a case-by- case assessment. Strickert v. Kansas Dept. of Revenue ………………………... 1

— Scope and Duration of Stop. A traffic infraction provides police with the reasonable suspicion necessary to initiate a traffic stop. The scope and duration of a stop must be strictly tied to and justified by the circumstances that rendered it proper and must last no longer than is necessary to effectuate the purpose of the stop. To extend a traffic stop beyond the time necessary to address the traffic violation, an officer must have a reasonable suspicion to believe that the person was or is involved in additional criminal activity. Reasonable suspicion requires more than just a hunch; the officer must be able to state a particularized and objective basis for believing the person stopped is engaged in criminal activity. Strickert v. Kansas Dept. of Revenue …………………………..………...….... 1

SEXUALLY VIOLENT PREDATOR ACT:

Two Day Time Limit for Hearing Is Directory. The requirement in K.S.A. 2019 Supp. 59-29a08(k), that the court set a hearing within two working days of receipt of notice that a person in the Sexually Violent Predator Treatment Program has been returned from transitional release to the secure commitment facility, is directory, not mandatory. In re Care and Treatment of Ritchie …………….………189

STATUTES:

Construction—Legislative Intent. When a statute is plain and unambiguous, this court need not speculate about the legislative intent behind that clear language and

XVIII SUBJECT INDEX 58 KAN. APP. 2d

PAGE

will refrain from reading something into the statute that is not readily found in its words. Stormont-Vail Healthcare v. Sievers ………………………..………. 152

Construction of Tax Statutes—Taxpayer's Favor. As a general rule, when construing tax statutes, provisions which impose a tax are to be construed strictly in favor of the taxpayer. In re Tax Appeal of River Rock Energy Co. ……………………….…… 98

Interpretation—Appellate Review. The interpretation of a statute is a question of law over which this court has unlimited review. Stormont-Vail Healthcare v. Sievers ……………………………..……. 152

— Determination of Legislative Intent—Appellate Review. Statutory interpretation is a legal question over which appellate courts exercise unlimited review. The aim of statutory interpretation is to determine the legislature's intent based on the language it employed. When a statute's text is plain and unambiguous, courts apply that language as written and do not look to canons of construction or legislative history. Courts give common words their common meanings and neither add language to statutes nor delete statutory requirements. State v. Lucas …………………………….……..… 34

— Legislative Intent. The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of a statute. Courts therefore do not add or ignore statutory text, and courts give ordinary words their ordinary meanings. Hanson v. KCC ………….…… 82

Statutory Definition of Fair Market Value. K.S.A. 79-503a defines fair market value as the amount in terms of money that a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion. In re Tax Appeal of River Rock Energy Co. ……………………….…… 98

SUMMARY JUDGMENT:

Appropriate if No Material Facts in Dispute. An order of summary judgment is appropriate only when no material facts are in dispute. When determining the existence of material facts in dispute, a trial court must resolve all facts and inferences in the nonmoving party's favor. Hefner v. Deutschner ………………. 58

TRIAL:

Challenged Jury Instruction in This Case Legally Correct. The district court does not undermine the jury's power of nullification by instructing the jury that it "must" follow the law and that it is the jury's "duty" to do so. State v. Albano ………………………….…………………………..…. 117

Determining Jury Instruction Error—Appellate Review. An appellate court employs a multi-step process to review claims of jury instruction error. First, the court must decide whether the issue was preserved. Second, it

58 KAN. APP. 2d SUBJECT INDEX XIX

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must decide whether an error occurred by determining whether the instruction was legally and factually appropriate. Finally, if error is found, the court must then determine whether the error is reversible. State v. Albano ………………………………………...………………. 117

Limiting Instruction for K.S.A. 60-455 Evidence. If K.S.A. 60-455 evidence is admitted at trial, then a limiting instruction is generally required. But the district court's failure to give a limiting instruction concerning K.S.A. 60-455 evidence is not always reversible error. Under the facts and circumstances of this case, the district court's failure to give a limiting instruction concerning the admissibility of the defendant's prior drug convictions was not clearly erroneous. State v. Albano ………………………. 117

WORKERS COMPENSATION:

Statutes Applied in Determination of Employer's Subrogation Lien. K.S.A. 44-504(b) and (d) are considered and applied in determining an employer's subrogation lien and future credit for workers compensation benefits provided to an injured employee. Hawkins v. Southwest Kansas Co-op Svc. ……………..…… 38

(XX)

VOL. 58 COURT OF APPEALS OF KANSAS 1

Strickert v. Kansas Dept. of Revenue

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No. 120,544

JERRY STRICKERT Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.

___

SYLLABUS BY THE COURT

1. ADMINISTRATIVE LAW—Driver's License Suspension—Review by District Court. K.S.A. 2019 Supp. 8-259(a) requires the district court to review an agency's decision to suspend a driver's license by trial de novo to the court.

2. SAME—Driver's License Suspension—Appellate Review. An appellate court reviews a district court's decision in a driver's license suspension case to determine whether it is supported by substantial competent evidence. Substantial competent evidence is legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion.

3. SEARCH AND SEIZURE—Traffic Stop—Reasonable Suspicion Requirement. A routine traffic stop is a seizure within the meaning of the Fourth Amendment to the United States Constitution; therefore, to comply with its strictures, the officer conducting the stop must have a reasonable and articulable suspicion that the driver has committed, is committing, or is about to commit a crime. Courts evaluate the existence of a reasonable suspicion under a totality of the circumstances analysis that requires a case-by-case assessment.

4. SAME—Traffic Stop—Scope and Duration of Stop. A traffic infraction provides police with the reasonable suspicion necessary to initiate a traffic stop. The scope and duration of a stop must be strictly tied to and justified by the circumstances that rendered it proper and must last no longer than is necessary to effectuate the purpose of the stop. To extend a traffic stop beyond the time necessary to address the traffic violation, an officer must have a reasonable suspicion to believe that the person was or is involved in additional criminal activity. Reasonable suspicion requires more than just a hunch; the officer must be able to state a particularized and objective basis for believing the person stopped is engaged in criminal activity.

5. MOTOR VEHICLES—Driver's License Suspension—Factors for Proper Sus- pension. Suspension of a driver's license is proper if (1) the law enforcement officer had reasonable grounds to believe the driver operated a vehicle while under the influence of alcohol, (2) the driver was arrested for an alcohol-related offense and there was probable cause to effectuate that arrest, (3) the driver was presented with the required oral and written notices, and (4) the driver refused to submit to the requested breath test.

6. CRIMINAL LAW—Driver's License Suspension—Reasonable Grounds Standard Same as Probable Cause Standard. Probable cause is the reasonable belief, drawn from the totality of information and reasonable inferences

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Strickert v. Kansas Dept. of Revenue

available to the arresting officer, that the defendant has committed or is committing a specific crime. In the context of the driver's license suspension statute, the reasonable grounds standard is essentially the same as the probable cause standard.

7. APPEAL AND ERROR—Determination whether Substantial Competent Evidence Supports District Court's Findings—Appellate Review. In determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it. Appellate courts are expected to give deference to the fact-finder who was in the courtroom when the testimony was given and where the inferences from the facts were reached.

Appeal from Finney District Court; RICKLIN R. PIERCE, judge. Opinion filed March 13, 2020. Affirmed.

John M. Lindner, of Lindner, Marquez & Koksal, of Garden City, for appellant.

John D. Shultz, of Legal Services Bureau, Kansas Department of Revenue, for appellee.

Before STANDRIDGE, P.J., LEBEN and BRUNS, JJ.

STANDRIDGE, J.: Following an administrative hearing, the Kansas Department of Revenue (KDR) suspended Jerry Strick- ert's driving privileges after finding that he refused to submit to a breath test on August 28, 2017. Strickert filed a petition with the district court seeking review of that administrative decision. After conducting a de novo bench trial, the district court upheld the administrative suspension. On appeal, Strickert challenges the district court's findings regarding the lawfulness of the initial stop, the extension of the initial stop, his arrest, and the request that he submit to an evidentiary breath test. Finding no error, we affirm the district court's decision.

FACTS

On August 28, 2017, a little before 1 a.m., Strickert left Rosie's Bar in Garden City, Kansas. As he drove away, Strickert noticed that he was being followed by two Garden City Police officers. As he turned west, Strickert observed one of the officers pull over a different vehicle behind him. The second officer, who later was identi-

VOL. 58 COURT OF APPEALS OF KANSAS 3

Strickert v. Kansas Dept. of Revenue fied as Officer Joshua Meinzer, continued to follow Strickert. Af- ter signaling, Strickert turned right onto Walker Street. His intent was to continue traveling eastbound on Walker Street but ultimately was unable to because Walker Street dead-ends into Taylor Avenue. Strickert, who later said he was unfamiliar with the area, did not realize that he could not continue straight on Walker Street until he reached the T-intersection. Strickert stopped at the stop sign that controlled the intersection and decided to turn left (north- bound) onto Taylor Avenue. He signaled his intent to do so while still stopped at the stop sign and then began to make the turn. At this point, Officer Meinzer initiated a traffic stop by activating his overhead emergency lights. After Strickert pulled over, Officer Meinzer exited his patrol vehicle and made contact with him through the driver's side win- dow. Officer Meinzer asked Strickert for his license, registration, and proof of insurance. Strickert, who recently had moved back to Kansas after living out of state for 10 years, produced a valid Texas driver's license but was unable to provide a physical copy of his current proof of insurance. There also was some confusion about what constituted a valid vehicle registration. Strickert indicated that the sticker on his windshield was sufficient proof of vehicle registration in Texas but Officer Meinzer insisted that the sticker was insufficient in Kansas. Throughout this interaction, Officer Meinzer noticed the odor of alcohol around Strickert and also observed that his eyes were bloodshot and his speech was slow. Based on those observations, Officer Meinzer asked Strick- ert if he had consumed any alcohol that night and Strickert admitted to drinking one beer. At this point, Officer Meinzer instructed Strickert to get out of the vehicle and place his hands on top of his head to be patted down for officer safety. Strickert began to comply but, as he raised his hands, he realized that he was still holding his car keys. Want- ing to "secure them" before doing anything else, Strickert dropped his hands and put his keys in his pocket. He then raised his hands again and began to place them on top of his vehicle before quickly correcting himself and placing them on top of his head. Once Strickert was cleared by the pat-down, Officer Meinzer moved him a short distance away from his vehicle and prepared him for

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Strickert v. Kansas Dept. of Revenue a number of field sobriety tests. Strickert told Officer Meinzer— without being prompted or asked—that he was exposed to impro- vised explosive devices while deployed as a Marine in Afghani- stan and, as a result, suffered from a loss of mobility in his lower right extremity as well as a loss of hearing. Both conditions, he later said, affected his performance on the field sobriety tests. He also later claimed that his performance was affected by the flip- flops that he was wearing because they "can play a part in the balance or hanging up on the asphalt." The first test administered by Officer Meinzer was the walk- and-turn test. The test was conducted on a surface that was free from debris and relatively flat but did have a slight downhill slope towards the roadway. Officer Meinzer demonstrated the test and then gave Strickert instructions about how to complete it. As he was doing so, Strickert got into the starting position but came out of it when Officer Meinzer told him not to start yet. When Officer Meinzer finished giving his instructions, Strickert got back into the starting position and walked nine steps heel-to-toe. At this point, Strickert asked Officer Meinzer either when or in which di- rection he was supposed to turn. Officer Meinzer did not respond to the question so Strickert completed the turn and took nine steps back to his starting position. Officer Meinzer detected four clues of impairment during the walk-and-turn test: (1) failing to maintain balance in the instruction position; (2) stopping and asking for clarification of the instructions after taking the first nine steps instead of completing the test in one continuous motion; (3) making an improper turn by "lifting both feet off the ground, which was inconsistent with the demonstration that was provided"; and (4) failing to maintain the heel-to-toe style of walking during the second set of nine steps. The second test administered by Officer Meinzer was the one- leg-stand test. For this test, Strickert was instructed to stand on one leg for a set period of time. Strickert chose to stand on his left leg and raise his injured/disabled right leg into the air until he was told to put it down. Officer Meinzer claimed to detect one clue of impairment during the one-leg-stand test but failed to specify what the clue was. The third test administered by Officer Meinzer is known as the Rhomberg test. Officer Meinzer instructed Strickert to tip his

VOL. 58 COURT OF APPEALS OF KANSAS 5

Strickert v. Kansas Dept. of Revenue head back, close his eyes, and count to 30 by thousands (as in one, one thousand; two, one thousand, etc.) for an estimated 30 seconds. Officer Meinzer told Strickert that when he was done, he should bring his head forward and say stop. Strickert completed the test, and Officer Meinzer detected two clues of impairment: (1) swaying from side-to-side during the test and (2) continuing the test for 45 seconds when told to stop after an estimated 30 seconds. After completing the field sobriety tests, Officer Meinzer offered Strickert the opportunity to take a preliminary breath test (PBT), but Strickert refused. Strickert later said he refused the PBT because he felt like Officer Meinzer had determined from the moment the traffic stop was initiated that he was driving while under the influence (DUI) of alcohol. Strickert said he was not going to allow his rights to be further infringed by submitting to a PBT. Based on the clues of impairment during the interaction and the field sobriety tests, as well as Strickert's refusal to submit to a PBT, Officer Meinzer arrested Strickert. Officer Meinzer later asked Strickert to submit to an evidentiary breath test, but he refused. Officer Meinzer filled out a DC-27 form, citing the odor of alcoholic beverages, failed sobriety tests, bloodshot eyes, poor balance or coordination, and Strickert's admission that he had consumed alcohol as reasonable grounds for his belief that Strickert was driving under the influence. Officer Meinzer did not check the boxes for "slurred speech" and "difficulty in communication" on the DC-27 form. Strickert was served with a Notice of Driver's License Sus- pension on August 28, 2017. He submitted a timely response through counsel and requested an in-person administrative hearing, which was held on October 27, 2017. After hearing witness testimony and watching the dash cam video, the hearing officer affirmed the administrative action to suspend and restrict Strick- ert's driving privileges. Strickert petitioned the district court for review, and a de novo bench trial was held on June 28, 2018. Like the hearing officer, the district court heard testimony from both Strickert and Officer Meinzer and watched the dash cam video. And like the hearing officer, the district court denied Strickert's petition and affirmed the administrative suspension of his license.

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Strickert v. Kansas Dept. of Revenue

STANDARD OF REVIEW

When reviewing a district court's order in an administrative driver's license suspension case, appellate courts generally "are tasked with ascertaining whether substantial competent evidence in the record supported the district court's findings and whether the conclusion derived from those findings is legally correct." Casper v. Kansas Dept. of Revenue, 309 Kan. 1211, 1213, 442 P.3d 1038 (2019); see also Swank v. Kansas Dept. of Revenue, 294 Kan. 871, 881, 281 P.3d 135 (2012) ("An appellate court generally reviews a district court's decision in a driver's license suspension case to determine whether it is supported by substantial competent evidence."). Substantial competent evidence is legal and relevant evidence that a reasonable person could accept as being adequate to support a conclusion. Geer v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019). But in reviewing a district court's factual findings, appellate courts do not reweigh evidence, resolve evidentiary conflicts, or make witness credibility determinations. State v. Chan- dler, 307 Kan. 657, 668, 414 P.3d 713 (2018). In its brief, the KDR suggests that the appropriate standard of review is not the substantial competent evidence standard but rather the negative finding standard. Specifically, the KDR submits that K.S.A. 77-621(c), the portion of the Kansas Judicial Review Act (KJRA) that defines the scope of review for agency actions, only applies to district courts; therefore, the district court's finding that Strickert failed to carry his burden of proof requires the application of the negative finding standard of review. But K.S.A. 77- 621(c) only applies to the extent that the [KJRA] or another statute does not provide otherwise. K.S.A. 77-621(a); see Zurawski v. Kansas Dept. of Revenue, 18 Kan. App. 2d 325, 327, 851 P.2d 1385 (1993). In driver's license suspension cases, K.S.A. 2019 Supp. 8-259(a) provides that review at the district court "shall be by trial de novo to the court." We find no cases, and the KDR fails to cite to any, that applies the negative finding standard of review to appeals in driver's license suspension cases. By contrast, Kan- sas caselaw is replete with examples of courts, including the Kan- sas Supreme Court, applying the substantial competent evidence standard to driver's license suspension cases. See, e.g., Drake v. Kansas Dept. of Revenue, 272 Kan. 231, 233-34, 32 P.3d 705

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Strickert v. Kansas Dept. of Revenue

(2001) (approving substantial competent evidence standard used by appellate courts after noting that K.S.A. 77-623 requires decisions on petitions for review of agency actions to be reviewable as in other civil cases); Swank, 294 Kan. at 881. Accordingly, we apply the substantial competent evidence standard of review to Strickert's first issue on appeal.

ANALYSIS

On appeal, Strickert claims the district court erred when it found (1) the officer had reasonable suspicion to initially detain him for a traffic infraction and to extend the detention for a DUI investigation and (2) the officer had reasonable grounds to arrest him and request him to submit to an evidentiary breath test. We address each of Strickert's claims in turn.

1. Reasonable suspicion

The Fourth Amendment to the United States Constitution provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated." Section 15 of the Kansas Constitution Bill of Rights contains similar language and provides "the same protection from unlawful government searches and seizures as the Fourth Amendment." State v. Neighbors, 299 Kan. 234, 239, 328 P.3d 1081 (2014). A routine traffic stop is a seizure within the meaning of the Fourth Amendment; therefore, to comply with its strictures, the officer conducting the stop must have a reasonable and articulable suspicion that the driver has committed, is committing, or is about to commit a crime. K.S.A. 22-2402(1); see State v. Glover, 308 Kan. 590, Syl. ¶ 1, 422 P.3d 64 (2018), cert. granted 139 S. Ct. 1445 (2019). "Courts evaluate the existence of a reasonable suspicion under a totality-of-the-circumstances analysis that requires a case-by-case assessment." 308 Kan. 590, Syl. ¶ 2. Observation of a traffic violation, even if it is a mere pretext, provides an officer with the requisite reasonable suspicion and is an objectively valid reason to initiate a stop. State v. Jones, 300 Kan. 630, 637, 333 P.3d 886 (2014). The scope and duration of

8 COURT OF APPEALS OF KANSAS VOL. 58

Strickert v. Kansas Dept. of Revenue the stop, however, must be strictly tied to and justified by the circumstances that rendered it proper and must last no longer than is necessary to effectuate the purpose of the stop (i.e., the traffic violation). State v. Jimenez, 308 Kan. 315, 322, 420 P.3d 464 (2018). To extend a traffic stop beyond the time necessary to address the traffic violation, an officer must have a reasonable suspicion to believe that the person was or is involved in additional criminal activity. Jones, 300 Kan. 630, Syl. ¶ 6; State v. Pollman, 286 Kan. 881, Syl. ¶¶ 3-5, 190 P.3d 234 (2008). Reasonable suspicion requires more than just a hunch; the officer must be able to state a particularized and objective basis for believing the person stopped is engaged in criminal activity. State v. Lowery, 308 Kan. 359, 366, 420 P.3d 456 (2018).

a. The initial stop

Strickert claims that Officer Meinzer lacked the reasonable suspicion necessary to initiate the traffic stop. A traffic infraction provides police with the level of suspicion necessary to initiate a traffic stop. This is true even if the traffic violation is mere pretext for the stop. State v. Golston, 41 Kan. App. 2d 444, 450, 203 P.3d 10 (2009). Officer Meinzer testified that he initiated the traffic stop after seeing Strickert fail to properly signal before making a turn on two separate occasions, which are traffic violations under K.S.A. 8- 1548. That statute provides, in relevant part:

"(a) No person shall turn a vehicle or move right or left upon a roadway unless and until such movement can be made with reasonable safety, nor without giving an appropriate signal in the manner herein provided. "(b) A signal of intention to turn or move right or left when required shall be given continuously during not less than the last one hundred (100) feet traveled by the vehicle before turning." K.S.A. 8-1548.

Strickert acknowledges that waiting until he was stopped at the T-intersection of Walker Street and Taylor Avenue to activate his turn signal constitutes a failure to appropriately indicate his intention to turn at least 100 feet before doing so. But he argues that a common-sense reading of K.S.A. 8-1548 indicates that the Legislature intended the 100-feet rule set forth in the statute to apply only to vehicles that are in motion and not to vehicles that are stopped at a controlled intersection. He also argues he did not

VOL. 58 COURT OF APPEALS OF KANSAS 9

Strickert v. Kansas Dept. of Revenue intend to turn until he came to a complete stop at the intersection; he wanted to continue traveling east but was unfamiliar with the area and did not realize that he would have to turn until he was already stopped. The Kansas Supreme Court already has considered and rejected Strickert's arguments in State v. Greever, 286 Kan. 124, 138-41, 183 P.3d 788 (2008), a case with facts almost identical to the ones presented here. There, Greever failed to signal his intention to turn until after coming to a complete stop at a T-intersection. A law enforcement officer initiated a traffic stop, and Greever ultimately was arrested for possession of marijuana. Greever later moved to suppress the evidence that was seized during the traffic stop on grounds that the officer lacked the reasonable suspicion necessary to initiate the stop. The district court denied Greever's motion and that decision was affirmed by the Kansas Supreme Court. 286 Kan. at 141. The court held that the plain language of K.S.A. 8-1548 does not provide for any exceptions to the requirement that a driver signal his or her intention to turn not less than 100 feet before turning. The court noted the statute does not require that the driver possess a particular criminal intent in order to be found guilty of the traffic infraction; instead, the infraction is an absolute liability offense, meaning no criminal intent is required, and the only proof necessary for a conviction is that the individual engaged in the prohibited conduct. 286 Kan. at 138. The court concluded that the traffic stop was valid because "[i]t [was] clear from the evidence that Greever failed to give the warning pro- scribed by K.S.A. 8-1548." 286 Kan. at 140. The Kansas Court of Appeals is duty-bound to follow Kansas Supreme Court precedent, absent some indication that the Kansas Su- preme Court is departing from its previous position. Tillman v. Good- pasture, 56 Kan. App. 2d 65, 77, 424 P.3d 540 (2018), rev. granted 309 Kan. 1354 (2019). There is no indication that the Kansas Su- preme Court is departing from the position set forth in Greever. Ac- cordingly, we find substantial competent evidence in the record to support the district court's finding that Officer Meinzer had the reasonable suspicion necessary to initiate a traffic stop after he observed Strickert violate K.S.A. 8-1548(b) by failing to activate his turn signal until after he came to a complete stop at the T-intersection of Walker and Taylor. See Greever, 286 Kan. at 140.

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Strickert v. Kansas Dept. of Revenue

b. Extending the stop

Strickert argues that, even if the initial stop was justified, Of- ficer Meinzer lacked the reasonable suspicion necessary to extend the stop for purposes of conducting a DUI investigation. When an officer initiates a stop based on a traffic infraction, the scope of the stop is limited so that the officer may only "request a driver's license and vehicle registration, run a computer check, and issue a citation." Golston, 41 Kan. App. 2d at 451. Once the officer has completed those routine tasks, "the driver must be allowed to proceed on his or her way, without being subject to further delay by the officer," unless the officer has reasonable and articulable suspicion that the driver has, is, or is going to engage in some other illegal activity. 41 Kan. App. 2d at 451. In that case, the detention may be extended while the officer investi- gates his or her suspicions. 41 Kan. App. 2d at 451. In support of his argument that Officer Meinzer did not have the reasonable suspicion necessary to extend the stop for purposes of conducting a DUI investigation, Strickert cites to City of Hutchinson v. Davenport, 30 Kan. App. 2d 1097, 1101, 54 P.3d 532 (2002). In that case, a panel of this court held that the odor of alcohol alone does not give an officer reasonable suspicion to stop a vehicle. 30 Kan. App. 2d at 1101. But the legal and factual issues presented here are distinguishable from those presented in Daven- port. First, the legal issue presented in Davenport was whether an officer's initial stop can be justified by nothing more than the odor of alcohol on the driver's breath. 30 Kan. App. 2d at 1098. By contrast, we already have found that the initial stop in this case was valid based on the traffic infraction committed by Strickert and are now presented with the issue of whether Officer Meinzer had the reasonable suspicion necessary to extend the stop in order to investigate the crime of DUI. Second, the officer in Davenport relied only on the odor of alcohol to support reasonable suspicion. In this case, Officer Meinzer relied on the odor of alcohol as well as Strickert's watery and bloodshot eyes, admission to consuming alcohol, and his commission of a traffic infraction. We find Davenport provides little to no support for Strickert's argument. Instead, the facts of this case are more analogous to Pollman, which Strickert cites to as a case on the other end of the

VOL. 58 COURT OF APPEALS OF KANSAS 11

Strickert v. Kansas Dept. of Revenue spectrum. There, an officer "seized" a motorist within the meaning of the Fourth Amendment after the motorist allegedly obstructed the officer's performance of an official duty. Pollman, 286 Kan. at 883-84, 888-89, 891-92. The officer then extended that seizure to conduct a DUI investigation based on the motorist's admission to drinking a few beers and the officer's detection of the odor of alcohol. The Kansas Supreme Court ultimately upheld extension of the seizure, concluding:

"[T]he totality of the circumstances—including criminal obstruction of official duty, admission to drinking, and smell of alcohol—provided reasonable suspicion to justify an investigation into whether [the motorist] . . . was operating his motorcycle while under the influence of alcohol. In other words, there existed a minimum level of objective justification sufficient for the investigative detention of [the motorist]." 286 Kan. at 897.

In this case, we similarly find that Officer Meinzer's extension of the traffic stop for purposes of conducting a DUI investigation was justified by the totality of the circumstances: (1) his observation of a traffic infraction, (2) the odor of alcohol coming from Strickert's person, (3) Strickert's watery and bloodshot eyes, and (4) Strickert's admission to consuming alcohol. See 286 Kan. at 897.

2. Reasonable grounds

Strickert argues that Officer Meinzer did not have reasonable grounds to believe he was driving under the influence and therefore did not have probable cause to arrest him. In the absence of probable cause to arrest him, Strickert argues his refusal to submit to the evidentiary breath test did not warrant suspension of his driving privileges. There is no dispute here that Strickert refused to submit to an evidentiary breath test after his arrest. Under K.S.A. 2019 Supp. 8-1002(a)(1), the KDR may suspend a person's driving privileges upon refusal to submit to a validly requested evidentiary test when the following four conditions are met:

"(A) There existed reasonable grounds to believe the person was operating or attempting to operate a vehicle while under the influence of alcohol . . . ; (B) the person had been placed under arrest, was in custody or had been involved in a vehicle accident or collision; (C) a law enforcement officer had presented the

12 COURT OF APPEALS OF KANSAS VOL. 58

Strickert v. Kansas Dept. of Revenue person with the oral and written notice required by K.S.A. 8-1001, and amendments thereto; and (D) the person refused to submit to and complete a test as requested by the law enforcement officer."

The arrest referenced in subsection (B) must be lawful, i.e., supported by probable cause, in order to satisfy that element. Casper, 309 Kan. at 1214-15; see Sloop v. Kansas Dept. of Revenue, 296 Kan. 13, 19, 290 P.3d 555 (2012). Probable cause is a higher standard than reasonable suspicion and is defined as "the reasonable belief, drawn from the totality of information and reasonable inferences available to the arresting officer, that the defendant has committed or is committing a specific crime." State v. Johnson, 297 Kan. 210, 222, 301 P.3d 287 (2013). Although not identical, the reasonable grounds standard set forth in subsection (A) has been held to be essentially the same as the probable cause standard set forth in subsection (B). Casper, 309 Kan. at 1215 (citing John- son, 297 Kan. at 222). Accordingly, if an officer lacks reasonable grounds to believe that a person is driving under the influence, then the officer also lacks probable cause to lawfully arrest that person. 309 Kan. at 1215. In support of his argument that Officer Meinzer lacked reasonable grounds to believe that he was driving under the influence and lacked probable cause to arrest him, Strickert relies on City of Wichita v. Molitor, 301 Kan. 251, 266-67, 341 P.3d 1275 (2015), and Casper. In Molitor, the Kansas Supreme Court held that an officer lacked reasonable suspicion to believe that Molitor was operating a vehicle under the influence of alcohol, which is a necessary pre- condition before an officer can request a PBT. "'Reasonable suspicion can arise from information that is less reliable than that required to show probable cause.'" 301 Kan. at 257-58. Strickert compares the factors of impairment and nonimpairment presented in Molitor to the factors of impairment and nonimpairment presented here to support his argument that Officer Meinzer did not have reasonable grounds to believe he was driving under the influence. But both the facts and the legal issue presented in Molitor are distinguishable from those presented here. In Molitor, the legal issue decided by the court was whether the officer "possessed the requisite reasonable suspicion that Molitor was operating his ve-

VOL. 58 COURT OF APPEALS OF KANSAS 13

Strickert v. Kansas Dept. of Revenue hicle while under the influence of alcohol when the officer requested that Molitor submit to a PBT." 301 Kan. at 268-69. In this case, however, the legal issue as framed by Strickert is whether Officer Meinzer had reasonable grounds that he was operating his vehicle while under the influence when the officer arrested him and requested him to submit to an evidentiary breath test. One of the facts considered by the district court in deciding that the officer did have reasonable grounds to arrest Strickert and to ask Strickert to submit to an evidentiary breath test was evidence in the record that reflects Strickert refused the officer's request that Strickert submit to a PBT. And although Strickert argues in his brief that we should not consider his refusal to take the PBT, he does so on grounds that an officer's request to submit to a PBT is not accom- panied by a statutory warning that a refusal may be used against the subject in future proceedings. Strickert also cites to the Kansas Supreme Court's recent decision in Casper to support his position. In that case, the Supreme Court found substantial competent evidence supported the district court's factual findings that the officer did not have reasonable grounds to believe that the driver was operating her vehicle while impaired and that the officer did not have probable cause to arrest the driver. 309 Kan. at 1221. Strickert argues that because there was more evidence supporting reasonable grounds of DUI in the Casper case than in this case, we necessarily must come to the same conclusion: that the officer did not have reasonable grounds to believe he was driving under the influence. But adopting Strick- ert's argument requires us to compare the number of factors that supports a finding of reasonable grounds in one case to the number of factors that support a finding of reasonable grounds in this case. This type of case-to-case comparison is directly at odds with the legal holding in Casper, which requires the reviewing court to determine whether "substantial competent evidence in the record supported the district court's factual findings and whether the conclusion derived from those findings is legally correct." 309 Kan. at 1213. In making that determination, the Casper court found it "necessary to look to the evidence before the district court and how the district court considered that evidence." 309 Kan. at 1216.

14 COURT OF APPEALS OF KANSAS VOL. 58

Strickert v. Kansas Dept. of Revenue

Accordingly, we turn to the proceedings before the district court here. On June 28, 2018, the district court held a trial. Both Strickert and Officer Meinzer testified. The video dash cam from Officer Meinzer's police vehicle and the DC-27 form were introduced into evidence. The court allowed both parties to present trial briefs to the court. On August 17, 2018, the district court issued written findings of fact and conclusions of law in the form of a 17-page journal entry, which affirmed the decision of the KDR to suspend Strickert's driver's license. Relevant here, the court made the following findings of fact in its Journal Entry:

 Officer Meinzer followed Strickert's vehicle as Strickert drove away from a bar at approximately 1 a.m.  Strickert failed to properly signal his intent to turn 100 feet before turning.  Officer Meinzer smelled the odor of alcohol coming from Strickert.  Strickert was the only occupant of the vehicle.  Strickert admitted to consuming alcohol.  Officer Meinzer noticed Strickert's eyes were bloodshot and watery.  Officer Meinzer noticed Strickert's speech was slow.  Officer Meinzer did not mark the slurred speech box on the form DC-27.  When Officer Meinzer directed Strickert out of the vehicle to conduct an officer safety pat-down search, Strickert did not follow Officer Meinzer's directions.  Officer Meinzer did not ask Strickert if he had any physical impairments, and there was no evidence that Strickert informed Officer Meinzer that he had physical impairments.  Strickert performed the requested field sobriety tests on a flat concrete surface.  Strickert exhibited four clues of impairment on the walk- and-turn test: failed to maintain balance, stopped after nine steps and asked about the turn, turned improperly, and missed heel to toe on the returning nine steps.

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Strickert v. Kansas Dept. of Revenue

 The video reflected that Strickert lost his balance twice during instructions and started before instructions were completed.  The video reflected that Strickert was not following instructions from Officer Meinzer during the walk-and-turn test.  Strickert performed the one-leg-stand with one clue of impairment: swaying.  Strickert finished the Rhomberg test in approximately 45 seconds instead of 30 seconds and swayed left to right while he was performing the test.  Strickert refused to submit to a PBT.  Strickert was arrested and refused to submit to an evidentiary breath test.  Strickert testified he did not take the PBT and the evidentiary breath test because he believed Officer Meinzer already had assumed Strickert was under the influence of alcohol.  There was no evidence of any unprofessional conduct of the officer or threats or coercion by Officer Meinzer; this was not a situation where Officer Meinzer knew Strickert from a previous encounter or situation.

With the exception of the court's finding that there was no evidence of Strickert informing Officer Meinzer that he had physical impairments, each of these factual findings is supported by substantial competent evidence in the record. As to Strickert informing Officer Meinzer that he had physical impairments, the following exchange occurred between the KDR's attorney John Shultz and Officer Meinzer during direct testimony at trial:

"Q. Now, during the time that you witnessed Mr. Strickert walk, did he indicate to you or did you notice that he had any kind of physical impairment? "A. I didn't notice one, but he had indicated one to me. "Q. Okay. He told you that? "A. Yes."

The fact that this particular finding is not supported by the record, however, is of no consequence to this appeal. This is because the

16 COURT OF APPEALS OF KANSAS VOL. 58

Strickert v. Kansas Dept. of Revenue district court makes clear that it did not rely on this particular fact in making its final decision:

"47. To recap, the officer had the following to support his belief as to probable cause to arrest, to wit: admitted consumption of alcohol, odor of alcohol emanating from [Strickert], bloodshot and watery eyes, slow speech, failure to follow instructions to place hands on head, clear failure to perform the walk and turn test, unsuccessful completion of the Rhomberg test, and refusal to submit to the [PBT]. "48. On the other hand, [Strickert] stated that he had only one beer, successfully passed the one-leg-stand test, had no impaired driving, did not have any trouble exiting the vehicle, and had no slurred speech. "49. Based upon the totality of the circumstances, the officer did have probable cause to arrest [Strickert] and therefore had reasonable grounds to request that [Strickert] submit to an evidentiary breath test." "'In determining whether substantial competent evidence supports the district court's findings, appellate courts must accept as true the evidence and all the reasonable inferences drawn from the evidence which support the district court's findings and must disregard any conflicting evidence or other inferences that might be drawn from it.'" Casper, 309 Kan. at 1220. As the analysis above demonstrates, the district court heard testimony, reviewed the video, weighed the evidence, and made a decision based on the totality of the circumstances. As specifically set forth in Casper, "appellate courts are expected to give deference to the fact-finder who was in the courtroom when the testimony was given and where the inferences from the facts were reached." 309 Kan. at 1221. We find that substantial competent evidence supports the district court's factual findings and that those findings support the court's legal conclusion: that Officer Meinzer had reasonable grounds to believe Strickert was driving under the influence, that Officer Meinzer had probable cause to arrest Strickert for DUI, that Officer Meinzer presented Strickert with the oral and written notices required by the implied consent law, and that Strickert refused to submit to and complete an evidentiary breath test as requested by Officer Meinzer. The district court's decision to affirm the KDR's decision to suspend Strickert's driver's license is affirmed.

Affirmed.

VOL. 58 COURT OF APPEALS OF KANSAS 17

State v. Mundo-Parra

___

No. 118,875

STATE OF KANSAS, APPELLEE, V. JOSE J. MUNDO-PARRA, APPELLANT.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Request for Postconviction Discovery—Good-Cause Showing Requirement. Postconviction discovery sought by the defendant should be allowed when the defendant shows that it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing by identifying the specific subject matter for discovery and explaining why discovery about those matters is necessary to protect substantial rights.

2. SAME—Request for Postconviction Discovery—Appellate Review. An appellate court reviews the district court's ruling on a request for postconviction discovery only for abuse of discretion.

Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion filed March 27, 2020. Affirmed.

Kristen B. Patty, of Wichita, for appellant.

Julie A. Koon, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., LEBEN, J., and BURGESS, S.J.

LEBEN, J.: Jose Mundo-Parra pleaded no contest in 2005 to the kidnapping and rape of a Wichita woman. In 2017, still serving his prison sentence, he asked that prosecutors be required to provide him the State's investigatory files in the case, including anything that might show his innocence. The district court denied that request. Kansas doesn't have a statute or court rule authorizing what lawyers call discovery—requests for information from other parties—after a criminal conviction. But Kansas courts have recognized that discovery may be required when the defendant's substantial rights are at stake. Here, though, Mundo-Parra confessed to his crimes, the victim identified him, and Mundo-Parra said at his sentencing that he

18 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mundo-Parra was "sorry for what I did" and that he "accept[ed] responsibility" for his crimes. He has not shown that any of his substantial rights require discovery, and we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At about six in the morning one day in August 2004, a woman called Wichita police from the parking lot of a fast-food establish- ment. She told them that she had been abducted earlier that morning when she was trying to place a phone call at a pay phone outside another business in the area. She described the suspect, gave police the license-plate number from the car he had been driving, and even told them where the man had said he lived—he had told her where in the area he lived when he first tried to get her to come into his car voluntarily. When she didn't get into the car, the man had followed her as she ran to another business, grabbed her, and hit her several times in the face. He threw her to the pavement. And when she briefly got away, he hit her again several times in the face and forced her into his car. He then took her away before forcing her to give him oral sex and repeatedly raping her. The man threatened to kill her several times during the two hours that he held her. He eventually let her out of the car, and she called police. Given her description of his car and license plate—as well as a general understanding of where he lived—police quickly located Mundo-Parra. They had him come outside his apartment building, and the victim confirmed he was the man who had kidnapped and raped her. A police detective then interviewed Mundo-Parra (after giving him Miranda warnings). Mundo-Parra admitted that he had seen the victim walking down the street, decided he wanted to have sex with her, forced her into his car, held her against her will for about two hours, hit her, threatened to kill her, forced her to perform oral sex on him, and raped her. In 2005, Mundo-Parra pleaded no contest to one count of aggravated kidnapping, one count of rape, and one count of criminal threat. At his plea hearing, a prosecutor summarized the facts we have just reviewed. Neither Mundo-Parra nor his attorney disa- greed with any of those facts, and Mundo-Parra told the court that

VOL. 58 COURT OF APPEALS OF KANSAS 19

State v. Mundo-Parra he understood that by pleading no contest he would "have no capacity to take an exception or to contest the summary of facts just now provided." At sentencing, Mundo-Parra asked for a shorter sentence than provided by our state's sentencing guidelines. In a written motion supporting that request, his attorney said that Mundo-Parra had "accepted responsibility for and is showing remorse for[] his actions in this matter." The motion said that Mundo-Parra had "committed these offenses while under the influence of narcotics." Mundo-Parra personally told the court: "I just say I am sorry for what I did, I accept responsibility, and I would just ask for the least sentence possible." The court found that Mundo-Parra had committed "a vicious, violent attack" on the woman and gave him the highest guideline sentence on both the rape and aggravated-kidnapping convictions, 165 months for each, to be served consecutively. The court also sentenced Mundo-Parra to 7 months for criminal threat but made that sentence concurrent with the others, so his controlling sentence is 330 months in prison. Mundo-Parra did not appeal his sentence. Nor has he moved to withdraw his no-contest pleas. But in 2017, he filed a written request asking that the State be ordered to give him all of the witness statements police had gathered, the results of all examina- tions or tests, any evidence that might impeach the credibility of any of the witnesses against him, and any materials that might tend to show his innocence. The district court denied Mundo-Parra's request, and he appealed to our court.

JURISDICTION

The State suggests that we lack jurisdiction over the appeal because Mundo-Parra didn't file his notice of appeal within 30 days of the district court's denial of his request. See K.S.A. 2019 Supp. 60-2103(a). But the time for filing an appeal does not begin to run if the court fails to give notice of the ruling to a party and the party isn't aware of it. See McDonald v. Hannigan, 262 Kan. 156, 163-64, 936 P.2d 262 (1997). Here, the district court entered its order electronically, and there's no record in the district court's

20 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mundo-Parra file that the court clerk mailed a copy of the order to Mundo-Parra. He made several requests asking the court to rule after the court actually had first done so, and he filed the notice of appeal well within 30 days of the district court's denial of his last request for a ruling (which noted that his original request had been made more than 150 days earlier). We find no jurisdictional hurdle to considering this appeal in the State's argument. We should perhaps note one potential jurisdictional argument that the State did not make since we have a duty to question our own jurisdiction. State v. Tims, 302 Kan. 536, 540, 355 P.3d 660 (2015). For us to have proper jurisdiction, the district court must also have had jurisdiction to consider Mundo-Parra's discovery request. See Ryser v. Kansas Bd. of Healing Arts, 295 Kan. 452, 456, 284 P.3d 337 (2012). He filed the request in his criminal case, but there was no pending motion before the court (such as a motion for a new trial). Nor did Mundo-Parra file a separate civil action challenging his confinement for which discovery might be needed. With no pending motion in the criminal case and no pending civil action challenging his confinement, one might question whether there's any statutory authority to allow discovery. But Kansas district courts "have general original jurisdiction of all matters, both civil and criminal, unless otherwise provided by law." K.S.A. 20-301. Because there's no statute governing postconviction discovery, there's no statutory limit on the district court's general jurisdiction over it. See City of Overland Park v. Niewald, 258 Kan. 679, 681-82, 907 P.2d 885 (1995); In re A.A., 51 Kan. App. 2d 794, 803-04, 354 P.3d 1205 (2015). Consistent with that rule, the Kansas Supreme Court did not question its jurisdiction to determine whether a district court had properly denied discovery in a similar postconviction criminal-case setting. See State v. Robinson, 309 Kan. 159, 432 P.3d 75 (2019). We conclude that the district court had jurisdiction to consider Mundo- Parra's request.

ANALYSIS

While the factual and procedural history we've set out is straightforward, the law that applies to Mundo-Parra's request is a bit murky. There are provisions in criminal cases that provide for limited discovery by the defendant. See K.S.A. 2019 Supp. 22-

VOL. 58 COURT OF APPEALS OF KANSAS 21

State v. Mundo-Parra

3212; K.S.A. 2019 Supp. 22-3213. But we understand those provisions to apply only before trial (or, as here, conviction through a plea). Mundo-Parra brought his discovery request 12 years after his conviction. No provision in the Kansas Code of Criminal Pro- cedure covers postconviction discovery. A statute or court rule could provide guidance; such a statute or rule could provide for discovery in situations in which it's merely good policy to provide for it although not legally required. See K.S.A. 2019 Supp. 21-2512 (providing when postconviction DNA testing may be ordered). In addition, a statute or rule could address a prosecutor's duty, if any, to provide exculpatory information to the defendant after conviction. Compare American Bar Association Model Rule 3.8(g) (providing that prosecutors must disclose "new, credible and material evidence creating a reasonable likelihood that a convicted defendant did not commit an offense of which the defendant was convicted") with KRPC 3.8 (2019 Kan. S. Ct. R. 359) (lacking any specific provision about a prosecutor's postconviction disclosure duties). With no statute or rule, however, we begin our analysis with a review of past Kansas cases about postconviction discovery. Most of the time, postconviction challenges to a person's conviction or sentence are made in a habeas corpus action. That's a civil case in which the defendant can seek release from confinement. See K.S.A. 2019 Supp. 60-1507. And while the Kansas Rules of Civil Procedure usually apply to civil cases, Kansas Su- preme Court Rule 183(a)(2) (2019 Kan. S. Ct. R. 229) provides that they apply in postconviction habeas cases only "to the extent the rules are applicable." Our court has held that civil discovery rules don't generally apply in postconviction habeas cases. LaPointe v. State, 42 Kan. App. 2d 522, 551, 214 P.3d 684 (2009); see also White v. Shipman, 54 Kan. App. 2d 84, 89-93, 396 P.3d 1250 (2017). Consistent with that view, the Kansas Supreme Court said (in a case in which the appellant conceded the point) that one specific statute, the civil-procedure rule for document production, doesn't apply to a motion seeking postconviction discovery in a criminal case. Robinson, 309 Kan. 159, Syl. As was true in Robinson, Mundo-Parra hasn't filed a civil habeas case; he has merely filed a request for a discovery order in

22 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mundo-Parra the criminal case in which he was convicted. So we must determine as a general matter—in the absence of a statute or court rule specifically authorizing it—whether a convicted defendant has some postconviction right to discovery and, if so, whether that right applies to Mundo-Parra's request. The published Kansas appellate opinions discussing postconviction discovery in a criminal case suggest a limited right to discovery when necessary to protect a defendant's due-process rights. In State v. Nirschl, 208 Kan. 111, 116, 490 P.2d 917 (1971), our Supreme Court said it was "arguable . . . that disclosure and post trial discovery may be necessary on certain occasions to insure due process." But the court found the request at issue was more of a fishing expedition than a targeted request related to a serious issue and affirmed the district court's denial of discovery. 208 Kan. at 116. In State v. Riis, 39 Kan. App. 2d 273, Syl. ¶ 3, 178 P.3d 684 (2008), our court deleted the "arguable" language from Nirschl; we stated this rule: "Posttrial discovery in a criminal case may be necessary on certain occasions to ensure due process." But our court in Riis did more than eliminate a bit of language; it ordered some discovery—an initial review of certain documents by the trial judge. Riis makes clear, then, that our courts will in some cases allow postconviction discovery to protect a defendant's rights. In Riis, the police officer who obtained the search warrant had been found to have presented non-credible information in other cases, leading to the dismissal of 27 cases. Our court said that Riis was entitled to have the trial judge review the materials related to the officer to see whether anything in the investigation suggested impropriety in Riis' case. If it did, we said, the material would be provided to the defendant because "it may amount to a manifest injustice not to allow Riis to withdraw his plea." 39 Kan. App. 2d at 278. That was another way of saying that the information might affect Riis' substantial rights because, under K.S.A. 2019 Supp. 22-3210(d)(2), a defendant may withdraw the plea even after sentencing if necessary to prevent manifest injustice. At least in that circumstance, our court held in Riis, due process required some limited discovery to make sure the defendant's substantial rights were protected.

VOL. 58 COURT OF APPEALS OF KANSAS 23

State v. Mundo-Parra

With so little Kansas caselaw on this point, we have also looked elsewhere for additional guidance. The United States Supreme Court has said that "[a] habeas petitioner . . . is not entitled to discovery as a matter of ordinary course." Bracy v. Gramley, 520 U.S. 899, 904, 117 S. Ct. 1793, 138 L. Ed. 2d 97 (1997). But a federal rule for habeas cases provides a right of discovery when supported by "good cause." Rule 6(a), Rules Governing Section 2254 Cases. Under that rule, good cause is shown when "discovery would assist the court to resolve a factual dispute that, if resolved in petitioner's favor, would entitle him to relief." 7 LaFave, Israel, King & Kerr, Criminal Proce- dure § 28.7(d) (4th ed. 2015). In other words, good cause exists when the discovery relates to a factual matter that could affect the defendant's substantial rights. See Black's Law Dictionary 1584 (11th ed. 2019) (defining a "substantial right" as "[a]n essential right that potentially affects the outcome . . . and is capable of legal enforcement"). Many states have rules or statutes providing for limited postconviction discovery. E.g., Alaska R. Crim. Pro. 35.1(g); Cal. Penal Code § 1054.9; Mont. Code Ann. § 46-21-201(4); Pa. R. Crim. Pro. 902(E). In states that have no rule or statute, courts generally say that it's within the trial court's discretionary authority to order postconviction discovery when good cause to do so is shown. E.g., Woodward v. State, 276 So. 3d 713, 734-35 (Ala. Crim. App. 2018); Cabrera v. State, 173 A.3d 1012, 1032-33 (Del. 2017); Rodriguez v. State, 919 So. 2d 1252, 1279 (Fla. 2005); People ex rel. Daley v. Fitzgerald, 123 Ill. 2d 175, 183-84, 526 N.E.2d 131 (1988); State v. Marshall, 148 N.J. 89, 270, 690 A.2d 1 (1997); Personal Restraint of Gentry, 137 Wash. 2d 378, 390-91, 972 P.2d 1250 (1999). Most of these courts say that the trial court has inherent authority to order this discovery. Cabrera, 173 A.3d at 1032-33; Rodriguez, 919 So. 2d at 1279; Fitzgerald, 123 Ill. 2d at 183-84; Marshall, 148 N.J. at 269-70. Allowing at least some discovery seems to be the rule: In deciding that some postconviction discovery should be allowed, the Nebraska Supreme Court concluded that a rule that "prevented prisoners from seeking any discovery at the postconviction stage[] would make Ne- braska unique among American jurisdictions." State v. Jackson, 275 Neb. 434, 452, 747 N.W.2d 418 (2008).

24 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mundo-Parra

Although Idaho has a rule allowing some discovery, that rule is so limited that the scope of discovery has been determined by caselaw. The Idaho rule says that normal civil discovery does not apply "except as and only to the extent ordered by the trial court." Idaho R. Crim. Pro. 39(b). Much like in Kansas, that has left it up to the courts to decide the limited circumstances in which discovery would occur. The Idaho Supreme Court has decided that "discovery is required when a petitioner demonstrates it is necessary to protect his substantial rights." State v. Abdullah, 158 Idaho 386, 482, 348 P.3d 1 (2015). As our Supreme Court said in Nirschl, 208 Kan. at 116, fishing expeditions aren't allowed. Abdullah, 158 Idaho at 482. But where the habeas petitioner "'identif[ies] the specific subject matter where discovery is requested and why discovery as to those matters is necessary,'" Idaho courts allow it when the discovery relates to the petitioner's substantial rights. 158 Idaho at 482. We think the rules set out in Abdullah, which are consistent with other cases around the country, also reflect the same principles that guided the Kansas decisions in Nirschl and Riis. Abdul- lah also fits well with another Kansas case, State v. Matson, 260 Kan. 366, 921 P.2d 790 (1996). There, to support a new-trial motion, the defendant sought a postconviction examination of the tape recordings of the defendant's statements to police to see if the tapes had been altered. But the court said the defendant hadn't put forth a clear statement of what might have been altered on the tapes. 260 Kan. at 383-84. In essence, with no showing of what might have been altered "or that there was a likelihood that the evidence would change the result of the trial," the defendant hadn't shown that discovery was necessary to protect a substantial right. 260 Kan. at 384. We conclude that postconviction discovery should be allowed when the defendant shows that it is necessary to protect substantial rights. To get discovery, the defendant must make a good-cause showing by identifying the specific subject matter for discovery and explaining why discovery about those matters is necessary to protect substantial rights. With that test now established, we conclude that Mundo-Parra has not met it. While he has identified the materials he seeks, he

VOL. 58 COURT OF APPEALS OF KANSAS 25

State v. Mundo-Parra has simply listed just about everything that might have been collected in his case. It's a classic fishing expedition, with no stated connection to any claim that could lead to setting aside either his no-contest pleas or his convictions. As we already noted in the factual section of our opinion, Mundo-Parra not only confessed to these crimes to a police detective, but he also told the court at sentencing that he accepted responsibility for having committed them. He has made no suggestion that his confession was untrue, and there's ample evidence to confirm it. The victim gave police the license-plate number for Mundo-Parra's car, and she identified Mundo-Parra as the rapist. All of the factual information we've recited about the case comes from the court file as it existed when Mundo-Parra entered his no-contest pleas and was sentenced. We've relied on an affidavit from the police detective who interviewed Mundo-Parra and the transcripts of his plea and sentencing hearings. While we recognize that Mundo-Parra may not have these documents in his prison cell today, he was present for the plea hearing and sentencing, and at least the attorney who represented Mundo-Parra had access to the detective's affidavit before Mundo-Parra entered his pleas. There's simply no suggestion in our record or in Mundo- Parra's request for discovery that there is any substantive reason that either his pleas or his convictions should be questioned in any way. In sum, he has not explained why any discovery is necessary to protect his substantial rights. We review a district court's decision to grant or deny postconviction discovery only for abuse of discretion. Riis, 39 Kan. App. 2d 273, Syl. ¶ 3. We find no abuse of discretion here.

We affirm the district court's judgment.

26 COURT OF APPEALS OF KANSAS VOL. 58

In re Marriage of Perales

___

No. 120,306

In the Matter of the Marriage of CYNTHIA FLORES PERALES, Appellee, and GARY FLORES PERALES, Appellant.

___

SYLLABUS BY THE COURT

1. DIVORCE—Division of Property. The division of property in a divorce must be equitable but need not be equal.

2. SAME—Division of Property—Appellate Review. An appellate court reviews the division of property in a divorce for abuse of discretion, so the award may be reversed only if it depends on an error of fact or law or if no reasonable person would agree with it.

3. SAME—Division of Property—No Abuse of Discretion in this Case. On the facts of this case, the district court did not abuse its discretion in awarding virtually all of the marital property to one spouse.

Appeal from Saline District Court; PAUL J. HICKMAN, judge. Opinion filed March 27, 2020. Affirmed.

Stephen L. Brave, of Brave Law Firm, LLC, of Wichita, for appellant.

No appearance by appellee.

Before BRUNS, P.J., LEBEN, J., and BURGESS, S.J.

LEBEN, J.: Gary Perales appeals the district court's decision to award to his wife essentially all the assets they had. He argues that this wasn't fair and that it violated a statute that allows the court to award property to one spouse while ordering the other "to pay a just and proper sum" for it. But another part of the statute lets the court simply divide the property "in kind," so an offsetting payment isn't required by statute. And the court need not divide assets equally; its duty is to divide them equitably. Gary is serving a prison sentence of life plus 322 months—by any measure, a long time. At the time of the divorce, his wife, Cynthia, was supporting herself and the parties' four children. They were living in the home the court set aside to Cynthia, and Cynthia provided for them with a $23,000 annual income working at a fast-food restaurant and food stamps. With four children (two

VOL. 58 COURT OF APPEALS OF KANSAS 27

In re Marriage of Perales teenagers), Cynthia and her children no doubt also made good use of the Dodge pickup truck the court awarded to her. Gary made no showing to the district court that he had any need for the house or the truck—or even for some monetary award instead of a property award. The court recognized that it had the duty to make an equitable ruling and cited facts that are significant given the factors the court must consider. We find no abuse of discretion in the court's award and affirm its judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Gary and Cynthia got married in March 1999; Cynthia filed for divorce in July 2017. They had four children during the marriage. When Cynthia filed for divorce, Gary was 58 and Cynthia was 38. Kansas court rules require that parties to a divorce file an affidavit with the court setting out their income and assets. Cynthia's affidavit said that she had only $200 in her checking account and that she earned $23,055 per year working at a fast-food restaurant in Salina. She said she also received $237 per month in food stamps. Gary didn't file an affidavit with the court. We know, though, that Gary is in a Kansas prison. He was convicted in 2012 of three counts of rape, four counts of aggravated indecent liberties with a child, and two counts of criminal sodomy. Gary's crimes were committed against a young girl, related to Cynthia, who lived with the parties for a time. Gary was sentenced to life in prison plus 322 months. State v. Perales, No. 110,246, 2015 WL 6630443, at *1 (Kan. App. 2015) (unpublished opinion). The court held a short trial in which both parties testified, Cynthia in person and Gary by telephone. There's no evidence that Gary has either income or expenses. Instead, both parties' testimony related mainly to the house Cynthia and her children lived in and a 2007 Dodge pickup truck. Cynthia said that she had paid most of the money for the house. Cynthia said that Gary had paid $10,000 toward the house before Cynthia received some insurance proceeds that let her pay the remaining $60,000 that was owed. (The insurance proceeds were initially received by Cynthia's mother after Cynthia's sister

28 COURT OF APPEALS OF KANSAS VOL. 58

In re Marriage of Perales was murdered.) Cynthia testified that Gary had signed a quitclaim deed conveying all interest in the house to her before he went to prison. Cynthia estimated the house's current value at $110,000. Gary testified that the money used to buy the house had come from his brothers, so they had an interest in the house. He also testified that he had sold the house and the pickup truck to his sister to fund his legal defense in the criminal case. Gary said that Cynthia had forged his signature on the quitclaim deed. He provided copies of what he claimed were receipts from his sale of the house and truck to his sister. Cynthia said that she needed the pickup to transport herself and the children. She said that Gary had made payments on the pickup before he went to prison, but that she had paid the remaining $7,000 due after that. Both parties said that the purchase price had been $30,000; Cynthia estimated the pickup's current value as $19,775. The court ruled orally at the end of the short trial. It found that the signature on the quitclaim deed matched his signature on court documents and appeared to be Gary's. The court also noted that no one other than Gary had testified about the arrangements between Gary and his family members. The court said that its job was to "decide what is fair, just and equitable, in the division of the marital property." The court awarded both the truck and the house to Cynthia. The court said that "the fair, just and equitable division . . . regarding the truck" was to "set [it] over to [Cynthia]." The court noted her testimony that she had made payments after Gary went to prison. As for the house, the court said that "[b]ased on the length of the marriage and the [quitclaim] deed, again that is notarized and signed by [Gary], . . . the [c]ourt is going to set the house over to her as her property . . . ." The court noted "the need to have a home for the parties' children."

ANALYSIS

Gary argues that the district court made two legal errors. First, he contends that the court treated the parties' house as if it weren't marital property at all. Second, he contends that if the court treats the house and pickup truck as marital property and awards them

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In re Marriage of Perales to Cynthia, it must require that she pay some amount to Gary to reflect his interest in the property. On the first point, Gary is right that Kansas law treats all property owned by either party—even if titled solely in one party's name—as marital property subject to division by the court when a divorce is filed. See K.S.A. 2019 Supp. 23-2801. So the house was subject to equitable division by the court to either party even though Gary had signed a quitclaim deed giving full title to Cyn- thia. But we see no indication that the district court misunderstood that basic concept of Kansas divorce law. Gary emphasizes that the court noted the quitclaim deed Gary had signed and even noted that the deed had been filed with the local register of deeds. Gary argues that had no relevance other than to support an award to Cynthia on the basis that the house wasn't marital property. That's not our understanding of what the district court did. The court's statements about the house tracked several factors the court must consider under Kansas law. A statute, K.S.A. 2019 Supp. 23-2802(c), sets out a nonexclusive list of factors the court must consider. The court's statements match up with factors listed there:

 The court mentioned the quitclaim deed, and the statute requires that the court consider the "property owned by the parties" and "time, source and manner of acquisition of property." K.S.A. 2019 Supp. 23-2802(c)(3), (5). Part of property ownership is the legal interest—do they have full legal title to the property? Just a lease? Cynthia had full legal title to the property through the quitclaim deed, and she had received that when Gary knew he was headed to prison for a long time. The form of ownership (full title) and the timing (put solely in Cynthia's name as Gary was headed to prison) supported awarding the house to Cynthia.  The court mentioned the need for Cynthia to have a home for the parties' children, and the statute requires that the court consider "family ties and obligations." K.S.A. 2019 Supp. 23-2802(c)(6). Making sure the children had a place to live supported awarding the house to Cynthia.

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In re Marriage of Perales

 The court also noted the length of the marriage (18 years), and the statute requires that the court consider "the duration of the marriage." K.S.A. 2019 Supp. 23-2802(c)(2). This doesn't seem as strong a factor in the award of the house as the others, but it shows that the court was considering the statutory factors, not simply awarding the house to Cynthia on the theory that it wasn't subject to equitable division in the divorce.

In sum, the court considered the required statutory factors when it awarded the house to Cynthia. It did not make the legal error Gary alleges in simply awarding the house to Cynthia based solely on her sole-owner status through the quitclaim deed; we find Gary's first argument of error unpersuasive. Gary's second argument is that the district court failed to follow a different statutory requirement. He notes that another part of the statute we've been discussing authorizes "awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum." K.S.A. 2019 Supp. 23- 2802(a)(2). Gary says that the court awarded the house and pickup to Cynthia but didn't order her "to pay a just and proper sum" to him in return. Gary recognizes longstanding Kansas law that the division need only be equitable, not equal. See In re Marriage of Rodri- guez, 266 Kan. 347, 352-53, 969 P.2d 880 (1998); In re Marriage of Peffly, No. 118,736, 2019 WL 2399474, at *5 (Kan. App. 2019) (unpublished opinion). But he argues that the court had to require Cynthia to pay him something in return for setting aside these assets to her. We disagree for two reasons. First, in some cases—including this one—a "just and proper sum" may be zero. Second, another part of the statute allows the court to divide the property "in kind." K.S.A. 2019 Supp. 23-2802(a)(1). And that in-kind provision, which also authorizes setting items of property aside to one spouse or the other, has no requirement that payment be made to the other party. Let's first look at subsection (a)(2), which authorizes "awarding the property or part of the property to one of the spouses and requiring the other to pay a just and proper sum." We'll start with

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In re Marriage of Perales the word "sum." A sum is "an indefinite or specified amount of money." Merriam-Webster's Collegiate Dictionary 1250 (11th ed. 2014). Sums can be positive, negative, or zero. But how is the word "sum" used here? It's in the phrase: "a just and proper sum." So we know that whatever that sum is to be in a given case, it should be the just and proper amount based on the facts of that case. In some cases, including this one, the just and proper amount may be zero. The Legislature has told us what a court must consider to get to a just and proper sum. That's where the factors from K.S.A. 2019 Supp. 23-2802(c) come into play. They don't suggest that the just and proper sum cannot be zero, and consideration of listed factors like "family ties and obligations" and "dissipation of assets" could easily lead to an unequal property division:

"(c) In making the division of property the court shall consider: (1) The age of the parties; (2) the duration of the marriage; (3) the property owned by the parties; (4) their present and future earning capacities; (5) the time, source and manner of acquisition of property; (6) family ties and obligations; (7) the allowance of maintenance or lack thereof; (8) dissipation of assets; (9) the tax consequences of the property division upon the respective economic circumstances of the parties; and (10) such other factors as the court considers necessary to make a just and reasonable division of property." K.S.A. 2019 Supp. 23-2802(c).

In fact, one of the listed factors—dissipation of assets—suggests an unequal division; if one party has frittered away the marital assets without benefit to the family, why not give most or all of the remaining assets to the other party? That's what the trial court did in Rodriguez. In that case, the husband had been involved in illegal activities that led to the loss of $56,000 in marital assets to asset forfeitures and payments to his criminal-defense attorneys. The trial court noted that these assets "'were squandered as a result of his activities,'" 266 Kan. at 348, and awarded almost all of the remaining assets to the wife. She got the parties' house valued at more than $90,000 (though with some mortgage debt) and the value of her retirement plan; he got only his clothes, his billfold (with driver's license and social security card), and a "Cancun vacation membership" that had been bought for $3,200. 266 Kan. at 349. And that Cancun vacation account would have been of little immediate value to the husband,

32 COURT OF APPEALS OF KANSAS VOL. 58

In re Marriage of Perales who was serving a 56-month prison sentence. But the Kansas Su- preme Court noted that the trial court had considered all the required statutory factors and found no abuse of discretion in the property division. 266 Kan. at 354. In our case, as we've already noted, the district court mentioned facts related to several of the factors when it awarded the house and pickup to Cynthia. We've also noted that longstanding Kansas caselaw says that the property division need only be equitable, not equal. Rodriguez, 266 Kan. at 352-53. In making that division, the trial court has great discretion—and unless the court has based its division on some incorrect factual assumption or faulty legal rule, we reverse its order dividing property only if it is based on an error of fact or law or if no reasonable person could agree with it. In re Marriage of Sadecki, 250 Kan. 5, 8, 825 P.2d 108 (1992); In re Marriage of Thrailkill, 57 Kan. App. 2d 244, 261, 452 P.3d 392 (2019). But can a division be reasonable when one spouse gets all the assets and the other gets nothing? In an extraordinary case, yes. And this is such a case. Gary committed crimes so serious that he is now serving a prison sentence of life plus 322 months; he committed these crimes in the family's home. He has only a prison sentence—not family obligations—to fulfill. At the time of the divorce, Cynthia had very substantial family obligations; she supported herself and the parties' four children on a $23,000 annual income and food stamps. Gary had recognized Cynthia's need for the house by signing a quitclaim deed transferring record ownership to her before he was sentenced. And Gary had shown no need in the foreseeable future for the house, the pickup, or any substantial amounts of money. The court awarded Gary his personal effects but otherwise gave the parties' assets to Cynthia. We find no abuse of discretion; on these facts, zero was a just and proper sum to award Gary from the parties' assets of value. We note that Gary's argument was that subsection (a)(2) requires the payment of some positive sum of money to one party if property was awarded to the other. We have rejected that argument. But even if we accepted that understanding of subsection (a)(2), that still wouldn't end the analysis. Subsection (a)(1) allows the court to divide the property "in kind." By "in kind," we simply mean "[i]n goods or services rather than money." Black's Law

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In re Marriage of Perales

Dictionary 940 (11th ed. 2019). And a "distribution in kind," is "[a] transfer of property in its original state, such as a distribution of land instead of the proceeds of its sale." Black's Law Dictionary 597. The court is to make a "just and reasonable division of property," K.S.A. 2019 Supp. 23-2802(c)(10), whether it makes an in- kind division under subsection (a)(1) or awards property to one party and a just and proper sum to the other under subsection (a)(2). Gary's complaint is about the award of the house and truck, which the trial court was free to award "in kind" to one of the parties. And based on the same analysis of the equities we already provided, we could also uphold the district court's ruling here as an appropriate division in kind. The division is still just and reasonable—Cynthia needed these assets to support herself and the four children, and Gary did not.

We affirm the district court's judgment.

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State v. Lucas

___

No. 120,510

STATE OF KANSAS, Appellee, v. LARRY L. LUCAS, Appellant.

___

SYLLABUS BY THE COURT

1. STATUTES—Interpretation—Determination of Legislative Intent—Ap- pellate Review. Statutory interpretation is a legal question over which appellate courts exercise unlimited review. The aim of statutory interpretation is to determine the legislature's intent based on the language it employed. When a statute's text is plain and unambiguous, courts apply that language as written and do not look to canons of construction or legislative history. Courts give common words their common meanings and neither add language to statutes nor delete statutory requirements.

2. CRIMINAL LAW—Criminal Possession of Weapon—Definition of Knife. The folding knife in this case—which is 9 inches long when unfolded (5 1/2 inches when closed) with a 4-inch blade—is a dangerous or deadly cutting instrument of like character to those listed in K.S.A. 2017 Supp. 21- 6304(c)(1).

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed March 27, 2020. Affirmed.

Rick Kittel, of Kansas Appellate Defender Office, for appellant.

Matt J. Maloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before WARNER, P.J., POWELL, J., and LAHEY, S.J.

WARNER, J.: Under Kansas law, "a knife is not always a knife." State v. Richardson, No. 118,183, 2018 WL 5091749, at *3 (Kan. App. 2018) (unpublished opinion), rev. denied 310 Kan. 1069 (2019). Based on this principle, Larry Lucas appeals his conviction of criminal possession of a weapon, claiming the 4-inch folding knife found in his truck did not meet the statutory definition of a "knife" under K.S.A. 2017 Supp. 21-6304(c)(1). But the folding knife is a dangerous or deadly cutting instrument with a sharp edge that can inflict injury. Thus, we affirm.

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State v. Lucas

FACTUAL AND PROCEDURAL BACKGROUND

On the evening of February 11, 2018, a Wichita police officer stopped Lucas for a traffic infraction. The officer arrested him after a records check revealed an outstanding bench warrant. During the arrest, Lucas' wife arrived at the scene and consented to the officer's search of the Lucases' truck. This search revealed a folding knife in the truck's driver-side door. The knife measured 9 inches when opened (5 1/2 inches when closed) and had a 4-inch blade. At its widest point, the blade was approximately 1 1/4 inches across. Lucas told the officer he used the knife at work. Based on his possession of the knife and a November 2010 felony drug conviction, the State charged Lucas with criminal possession of a weapon by a convicted felon under K.S.A. 2017 Supp. 21-6304(a)(2). Lucas filed a motion to dismiss, arguing the folding knife was not a "knife" prohibited under K.S.A. 2017 Supp. 21-6304(c)(1), which defines a knife for purposes of a criminal-possession offense as "a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character." Lucas argued that the instruments listed in the statute have a "single purpose" of inflicting harm by cutting or stabbing while his folding knife had other intended uses. The court denied his motion. The case proceeded to a bench trial, where the court found Lucas guilty and entered a sentence of 18 months in prison, then suspended the prison sentence and granted him probation for 18 months. Lucas appeals.

DISCUSSION

K.S.A. 2017 Supp. 21-6304 criminalizes the possession of a weapon by individuals convicted of certain felonies. For purposes of this offense, a weapon is "a firearm or a knife." K.S.A. 2017 Supp. 21-6304(c)(2). Although these terms have commonly understood meanings, the statute defines the term "knife" as "a dagger, dirk, switchblade, stiletto, straight-edged razor or any other dangerous or deadly cutting instrument of like character." K.S.A. 2017 Supp. 21-6304(c)(1). The sole issue presented in this appeal is whether the folding knife found in the Lucases' truck is a prohibited "knife" under this statutory definition.

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State v. Lucas

Statutory interpretation is a legal question over which appellate courts exercise unlimited review. State v. Keel, 302 Kan. 560, Syl. ¶ 4, 357 P.3d 251 (2015). The aim of statutory interpretation is to determine the legislature's intent based on the language it employed. 302 Kan. 560, Syl. ¶ 5. When a statute's text is plain and unambiguous, courts apply that language as written and do not look to canons of construction or legislative history. We give common words their common meanings and neither add language to statutes nor read out statutory requirements. 302 Kan. 560, Syl. ¶ 6. Lucas argues his folding knife is not one of the knives listed in the statute or similar to the knives the statute prohibits. Dirks, daggers, and stilettos have fixed, tapered blades and are used for stabbing. Although straight-edged razors have folding, untapered blades, their sharpness and potential for concealment render them dangerous. And switchblades are spring-loaded knives that historically have been used as weapons. Lucas contends his folding knife has none of these characteristics. It is true, as Lucas notes, that the legislature's decision to define "knife" under K.S.A. 2017 Supp. 21-6304(c)(1) signals an intent that not all knives be prohibited. Indeed, Kansas courts have recognized the possibility that not all knives will meet this statutory definition. See State v. Moore, 38 Kan. App. 2d 980, 986, 174 P.3d 899 (2008) (excluding dull butter or putty knives used for spreading); Richardson, 2018 WL 5091749, at *3 (contrasting the defendant's fixed-blade knives to "a small whittling knife or multi- tool"); see also State v. Harris, No. 116,515, 2018 WL 473605, at *4 (Kan. App.) (unpublished opinion), rev. granted 308 Kan. 1598 (2018) (opining a plastic butter knife would not be considered a "knife" under the statutory definition). But the district court did not err in concluding the folding knife here fell within the reach of the statute. There is no serious question that the folding knife could be used as a "dangerous or deadly cutting instrument." When unfolded, the knife measured 9 inches in length, with a 4-inch blade; it could certainly inflict injury. And the folding knife, like the other instruments listed in the statute, has at least one sharp edge and is capable of being used as a weapon. Lucas' argument—that the "single purpose" or "primary purpose" of the knife must be to inflict harm—would improperly

VOL. 58 COURT OF APPEALS OF KANSAS 37

State v. Lucas add requirements to the statutory text and thus runs contrary to our principles of statutory interpretation. See Keel, 302 Kan. 560, Syl. ¶ 6. In short, the folding knife was a "dangerous or deadly cutting instrument of like character" to those listed in K.S.A. 2017 Supp. 21-6304(c)(1). As a final note, we observe that Lucas phrased his claim before the district court as one of statutory interpretation. On appeal, he also presents a due-process argument, contending the State failed to produce evidence of a knife that meets his restrictive view of the statute. We need not consider whether we should reach this new argument, however, because we have already decided the folding knife at issue meets the definition of a "knife" under a plain reading of K.S.A. 2017 Supp. 21-6304(c)(1). And we similarly need not consider whether less dangerous instruments not at issue here (such as a butter knife or steak knife, whether found at home or in a restaurant) would meet the statutory definition were a different set of circumstances presented. Accord Cross v. Kan- sas Dept. of Revenue, 279 Kan. 501, 507-08, 110 P.3d 438 (2005) (a person only has standing to bring a facial challenge to a statute if that person can show the statute is unconstitutional as applied to him or her). The district court did not err when it found the folding knife here was a "knife" as defined by K.S.A. 2017 Supp. 21-6304(c)(1).

Affirmed.

38 COURT OF APPEALS OF KANSAS VOL. 58

Hawkins v. Southwest Kansas Co-op Svc.

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No. 118,379

HUGH MICHAEL HAWKINS, Appellant/Cross-appellee, v. SOUTHWEST KANSAS CO-OP SERVICE and TRAVELERS INDEMNITY COMPANY, Appellees/Cross-appellants.

___

SYLLABUS BY THE COURT

WORKERS COMPENSATION—Statutes Applied in Determination of Employ- er's Subrogation Lien. K.S.A. 44-504(b) and (d) are considered and applied in determining an employer's subrogation lien and future credit for workers compensation benefits provided to an injured employee.

Appeal from Workers Compensation Board. Opinion filed April 3, 2020. Re- versed and remanded with directions.

Scott J. Mann, of Mann, Wyatt & Rice, LLC, of Hutchinson, for appellant/cross- appellee.

William L. Townsley, III, of Fleeson, Gooing, Coulson & Kitch, L.L.C., of Wich- ita, for appellees/cross-appellants.

Before POWELL, P.J., PIERRON and ATCHESON, JJ.

ATCHESON, J.: This case requires us to apply the statutory scheme permitting an employer that has provided workers compensation benefits to an injured employee to obtain both a subrogation interest in any recovery the employee receives from a third party and a credit for future benefits. The governing statute, K.S.A. 44-504, is something less than a model of clarity and gen- erated a split decision from the Workers Compensation Board in this case. We part ways with the Board majority on the proper methods for determining the subrogation lien and the future credit and, therefore, reverse and remand for further proceedings. Consistent with K.S.A. 44-504(d), the jury verdict in Hugh Hawkins' third-party negligence action should be used to determine the fault of Southwest Kansas Co-op Service, his employer, and the measure of Hawkins' damages from his workplace injury. The jury decided both those issues. As we explain, those determinations then drive the reduction in Southwest Kansas Co-op's subrogation lien and future credit for workers compensation benefits

VOL. 58 COURT OF APPEALS OF KANSAS 39

Hawkins v. Southwest Kansas Co-op Svc. it has provided or will provide to Hawkins. The Board erred in applying the jury's finding of fault to Hawkins' settlement with one of several defendants in his negligence action to compute the reduction. Consistent with K.S.A. 44-504(b), Southwest Kansas Co-op's credit for future benefits should have been determined using each annual settlement payment to Hawkins from one of the third-party defendants when that payment was received. The Board erred in aggregating those payments and relying on the total amount, when Hawkins would not receive the last installment for 20 years.

PROCEDURAL AND FACTUAL POSTURE OF CASE

This appeal comes to us through the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. See K.S.A. 44-556(a) (decisions of Workers Compensation Board subject to review in Court of Appeals under KJRA). The material facts in this appeal are undisputed. The controlling issue requires us to determine what subrogation and credit rights those facts trigger under K.S.A. 44-504. That is a matter of statutory interpretation and presents a question of law. See State v. Murdock, 299 Kan. 312, 314, 323 P.3d 846 (2014) (interpretation of statute a question of law given unlimited review on appeal); Estate of Belden v. Brown County, 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011) (when material facts undisputed, issue presents question of law). We owe no particular deference to the Board in deciding matters of law, so we exercise unlimited review. Fernandez v. McDonald's, 296 Kan. 472, 475, 292 P.3d 311 (2013). And under the KJRA, we may reverse an agency action, such as the Board's order, for legal error. K.S.A. 77-621(c)(4). Hawkins suffered serious permanent injuries while employed by Southwest Kansas Co-op in 2006 when a boom crane in which he was working collapsed. Although the precise nature of the injuries is immaterial to this appeal, we understand them to be fairly characterized as catastrophic, and Hawkins has required continuing medical care as a result. Again, for purposes of this appeal, Hawkins' right to workers compensation benefits from Southwest Kansas Co-op is undisputed. Based on the administrative law

40 COURT OF APPEALS OF KANSAS VOL. 58

Hawkins v. Southwest Kansas Co-op Svc. judge's decision issued in 2017 regarding subrogation, we understand Southwest Kansas Co-op to have provided workers compensation benefits to Hawkins valued at $852,460.34. We further understand everyone expected Hawkins would continue to receive benefits. In explaining our decision, we use the numbers appear- ing in the decisions issued by the administrative law judge and the Board. Those numbers and our arithmetic using them are entirely secondary to the statutory methods we outline for determining an employer's subrogation interest and future credit under K.S.A. 44- 504 for workers compensation benefits provided to an injured worker. In the interests of completeness, we mention Travelers Indem- nity Company, as Southwest Kansas Co-op's insurance carrier, has actively participated in the workers compensation proceedings, including this appeal. For convenience, we refer to Southwest Kan- sas Co-op without repeatedly mentioning Travelers, as well, since they have united legal interests and have been represented by the same lawyers. In 2007, Hawkins filed a civil action in Stanton County Dis- trict Court to recover damages from other parties he contended bore some legal responsibility for the collapse of the crane and his injuries. Ultimately, Hawkins proceeded against three named defendants: JLG Industries, Inc., which manufactured the crane in 1995; United Rentals Northwest, Inc., the successor in interest to a company that bought the crane from JLG and sold it in 1999; and Western Steel and Automation, Inc., which bought the crane in 1999 and had leased it to Southwest Kansas Co-op. Southwest Kansas Co-op chose not to exercise its right under K.S.A. 44- 504(b) to intervene in that action to protect its statutory subrogation interests. Pertinent here, the Stanton County action played out this way:

• Hawkins settled with Western Steel in 2008 for $925,000. The district court approved the settlement that designated the full amount paid as damages for a loss of consortium claim. Neither the district court nor the settlement itself apportioned fault among the defendants or specifically to Western Steel or Southwest Kan- sas Co-op. Under K.S.A. 44-504(b), an employer may not assert a subrogation lien or claim for future benefits against damages an

VOL. 58 COURT OF APPEALS OF KANSAS 41

Hawkins v. Southwest Kansas Co-op Svc. employee recovers from a third party in satisfaction of a loss of consortium claim. • Hawkins settled with JLG in early 2011. The settlement amount depended on the outcome of separate litigation between a successor in interest to JLG and the successor's insurance carrier. Ultimately, Hawkins was to receive annual payments of $75,000 for 20 years, yielding a total recovery of $1.5 million. Hawkins began receiving those payments in 2012. Payments were made at least through 2016, although their status since then is not readily apparent from the briefing or the appellate record. The district court also approved the settlement with JLG and accepted a stip- ulation that Hawkins' actual damages were $6.3 million. The settlement did not apportion fault in any way. • Hawkins went to trial in April 2011 on his negligence claims against United Rentals. The district court submitted Western Steel, JLG, and Southwest Kansas Co-op as phantom defendants to the jury for comparative fault purposes. The jury had the option to apportion fault to Hawkins, as well. The jury attributed no fault for the crane mishap to United Rentals, JLG, or Hawkins and found Western Steel to be 75 percent at fault and Southwest Kan- sas Co-op to be 25 percent at fault. The jury determined Hawkins' damages to be $4,081,916.50. Hawkins appealed the judgment entered on the jury verdict, and a panel of this court affirmed. First National Bank of Hutchinson, as Conservator for Hugh M. Haw- kins v. United Rentals Northwest, Inc., No. 109,664, 2014 WL 5346255 (Kan. App. 2014) (unpublished opinion).

After the Stanton County action wrapped up, Southwest Kan- sas Co-op filed a request in the workers compensation proceeding for a determination of its statutory subrogation lien and any credit for future benefits that Hawkins might receive. Under K.S.A. 44- 504(a), employees injured in the course of their employment may receive workers compensation benefits from their employers and may independently pursue civil actions against third parties they believe have some legal liability for their injuries. If the employee recovers from a third-party wrongdoer, the employer commonly will have a subrogation lien against that recovery and possibly a credit for future benefits. Two subsections of K.S.A. 44-504 govern workers compensation subrogation and credits:

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Hawkins v. Southwest Kansas Co-op Svc.

"(b) In the event of recovery from such other person by the injured worker or the dependents or personal representatives of a deceased worker by judgment, settlement or otherwise, the employer shall be subrogated to the extent of the compensation and medical aid provided by the employer to the date of such recovery and shall have a lien therefor against the entire amount of such recovery, excluding any recovery, or portion thereof, determined by a court to be loss of consortium or loss of services to a spouse. . . . Whenever any judgment in any such action, settlement or recovery otherwise is recovered by the injured worker or the worker's dependents or personal representative prior to the completion of compensation or medical aid payments, the amount of such judgment, settlement or recovery otherwise actually paid and recovered which is in excess of the amount of compensation and medical aid paid to the date of recovery of such judgment, settlement or recovery otherwise shall be credited against future payments of the compensation or medical aid...... "(d) If the negligence of the worker's employer or those for whom the employer is responsible, other than the injured worker, is found to have contributed to the party's injury, the employer's subrogation interest or credits against future payments of compensation and medical aid, as provided by this section, shall be diminished by the percentage of the recovery attributed to the negligence of the employer or those for whom the employer is responsible, other than the injured worker."

In a decision issued in February 2017, the administrative law judge determined Southwest Kansas Co-op's subrogation rights and credit against future benefits due Hawkins. For reasons the judge did not fully explain, she determined the subrogation lien by reducing Hawkins' settlement from JLG, which she valued at $1.5 million, by 25 percent, reflecting the fault the jury attributed to Southwest Kansas Co-op in the trial, and subtracting that amount ($375,000) from the workers compensation benefits paid ($852,460.34). Based on that approach, Southwest Kansas Co-op had a subrogation lien against Hawkins' recovery for $477,460.34. The judge then found Southwest Kansas Co-op had a credit against future benefits of $272,539.66. She subtracted the benefits paid from the JLG settlement yielding a credit of $647,539.66, which she then reduced by the $375,000, derived from Southwest Kansas Co-op's percentage of fault as applied to the JLG settlement. The judge referred to and ostensibly relied on formulas for computing subrogation and credits under K.S.A. 44-504 developed in Enfield v. A.B. Chance Co., 228 F.3d 1245 (10th Cir. 2000). As we later explain, we agree with Enfield's method for

VOL. 58 COURT OF APPEALS OF KANSAS 43

Hawkins v. Southwest Kansas Co-op Svc. computing subrogation liens but not its method for future credits. The administrative law judge misapplied Enfield in determining the subrogation lien. Hawkins and Southwest Kansas Co-op appealed the judge's determination to the Board. Three members of the Board, hence a majority, essentially adopted the administrative law judge's reasoning and affirmed the result she reached. The majority also relies on Enfield and dis- cusses at length Harwood v. Feyh, No. 108,603, 2013 WL 5187637 (Kan. App. 2013) (unpublished opinion). But Harwood is inapposite to the issues in this case. In Harwood, this court rejected the injured employee's argument that his employer's subrogation lien should be proportionately reduced because his actual recovery from a third-party wrongdoer, who admitted liability, was substantially less than his actual damages. The employer in that case bore no fault for the employee's injuries. As the Harwood court recognized, K.S.A. 44-504(b) includes no allowance for reducing an employer's subrogation lien in that circumstance. 2013 WL 5187637, at *3. But Harwood doesn't presume to deal with the reduction of a subrogation lien or a future credit based on an employer's adjudicated fault, as mandated in K.S.A. 44-504(d). Another Board member would have discarded the jury's determination of Southwest Kansas Co-op's fault and would have used the settlement with JLG without reduction to compute the subrogation lien and the future credit. The Board member did not then make the actual computations in his short concurring and dissenting opinion. His position matched the outcome Southwest Kansas Co-op principally advanced. The fifth Board member dissented and would have used both the jury's allocation of fault to Southwest Kansas Co-op and its assessment of Hawkins' actual damages in figuring the subrogation lien—an approach consistent with Enfield. The Board member says the jury found the damages to be about $3.9 million, although the actual figure was about $4.1 million. Applying South- west Kansas Co-op's 25 percent fault to either amount yields an offset that exceeded the workers compensation benefits paid and, thus, wiped out any subrogation lien. The dissenting Board member did not specifically address whether Southwest Kansas Co-op might have a credit against future benefits.

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Hawkins v. Southwest Kansas Co-op Svc.

Hawkins appealed the Board's decision, and Southwest Kan- sas Co-op has cross-appealed.

LEGAL ANALYSIS

Workers Compensation Principles and Comparative Fault Law

We begin by looking at several basic principles associated with workers compensation and how that administrative process interacts with tort law. The historical public policy underlying workers compensation helps illuminate the purpose for subrogation liens and future credits in K.S.A. 44-504 and how they should be measured. Before the enactment of workers compensation, injured employees could bring tort actions against their employers. But they had to prove the employer's negligence and faced a bar to recovery if they were contributorily negligent. Those were formidable legal obstacles. See Ringer v. Railroad Co., 85 Kan. 167, 116 P. 212 (1911) (contributory negligence barred workplace injury claim). When injured employees could not work, they and their families often were left destitute and became public charges. Workers compensation statutes sought to mitigate that socially undesirable outcome by replacing common-law tort remedies with a streamlined administrative process designed to provide limited benefits to injured workers promptly and without regard to fault. The benefits included medical care, rehabilitative treatment, and at least partial income replacement—all aimed at returning injured employees to the workforce and keeping their families from impecuniousness in the meantime. The administrative adjudicatory scheme largely shifted the financial losses associated with workplace injuries from the individual employee to employers, who could then choose to insure against those losses as a cost of doing business. By the same token, however, employers could not be sued in traditional negligence actions and, thus, avoided facing juries, satis- fying potentially large verdicts for noneconomic damages, and paying lawyers to defend protracted civil litigation. See Injured Workers of Kansas v. Franklin, 262 Kan. 840, 883, 942 P.2d 591 (1997) (acknowledging underlying purpose of workers compensation legislation); Green v. Burch, 164 Kan. 348, 355-56, 189 P.2d 892 (1948) (detailed discussion of public policy basis for

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Hawkins v. Southwest Kansas Co-op Svc. workers compensation); see also Madera Sugar Pine Co. v. Industrial Accident Commission of California, 262 U.S. 499, 502-03, 43 S. Ct. 604, 67 L. Ed. 1091 (1923) (purpose and operation of workers compensation statutes generally in considering California scheme); Kansas Bldg. Industry Workers Comp. Fund v. State, 302 Kan. 656, 660, 359 P.3d 33 (2015) (employer may self-insure or obtain insurance coverage for workers compensation claims from authorized carrier or group- funded pool). The Kansas workers compensation scheme has undergone major revisions since it was enacted in 1911. Among the significant amendments made in 1974, the Kansas Workers Compensation Act, K.S.A. 44-501 et seq., became mandatory for most employers. The Act has since been substantially overhauled in 1993 and 2011. Likewise, tort law has not remained static over the past century. Pertinent here, the Kansas Legislature adopted comparative fault in 1974, effectively abolishing contributory negligence as a defense to common-law negligence claims. K.S.A. 60-258a; Brown v. Keill, 224 Kan. 195, 197, 580 P.2d 867 (1978). The comparative fault statute per- mits the determination of fault attributable to potential wrongdoers who have settled claims against them or who are immune from liability, such as employers in negligence actions for workplace injuries to their employees. Those settling or immune parties are commonly known as phantom defendants. When comparative fault went into effect, employers had a right to subrogation for workers compensation benefits against any recovery an injured employee might make against a third-party wrongdoer, along with a credit for future benefits—matching the protections in K.S.A. 44-504(b). Until then, fault would not have been formally ascribed to an employer in a third-party negligence action. Comparative fault changed that and, thus, highlighted an anomaly with subrogation liens and future credits in K.S.A. 44-504(b) for employers paying workers compensation benefits. An employer bearing some or even the predominate legal fault for its employee's injuries, though immune from liability in a negligence action, could recoup the full amount it paid in workers compensation benefits for medical expenses and lost income from any recovery the employee obtained from a defendant found to be at fault. The employer would, then, suffer no financial loss despite its negligence contributing to the employee's injury;

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Hawkins v. Southwest Kansas Co-op Svc. and, in that respect, it would be in precisely the same preferred position as an employer that bore no legal fault for an employee's injury. The Kansas Supreme Court acknowledged the anomaly in Negley v. Massey Ferguson, Inc., 229 Kan. 465, Syl. ¶ 2, 468-69, 625 P.2d 472 (1981), and characterized a full subrogation recovery by a negligent employer as an unavoidable "inequity" neces- sitated by the language of K.S.A. 44-504(b). 229 Kan. at 468. The year after Negley was decided, the Legislature added subsection (d), requiring the reduction of an employer's subrogation lien and credit for workers compensation benefits if the employer bears some legal fault for the employee's injuries. See Brabander v. Western Cooperative Electric, 248 Kan. 914, 917, 811 P.2d 1216 (1991). As part of the major revision of the Workers Com- pensation Act in 1993, the Legislature replaced the phrase "damage award" in K.S.A. 44-504(d) with the term "recovery," thereby matching the language in K.S.A. 44-504(b). L. 1993, ch. 286, § 26. The statutory provisions governing liens, credits, and their reduction for an employer's fault have remained the same since then.

Subrogation Liens under K.S.A. 44-504

In tackling the proper measure of Southwest Kansas Co-op's subrogation lien and credit, our first obligation is to carry out the legislative purpose behind the enactment of K.S.A. 44-504(b) and (d), considered in tandem and as part of the comprehensive Work- ers Compensation Act. Travelers Cas. Insurance v. Karns, 56 Kan. App. 2d 388, 393, 431 P.3d 301 (2018). An appellate court should look initially to the words of a statute to discern legislative intent. Bussman v. Safeco Ins. Co. of America, 298 Kan. 700, 725- 26, 317 P.3d 70 (2014). If particular language is open to more than one reasonable interpretation, the court may consider the overall statutory purpose and favor a reading that comes to a "consistent, harmonious, and sensible" result effectuating that purpose. In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). Judi- cial interpretation should avoid adding something to the statutory language or negating something already there. Casco v. Armour Swift-Eckrich, 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007). A court, of course, may also deploy those analytical tools to debunk a suggested interpretation of a statute as improbable, particularly when the suggestion would undermine a legislative purpose. See

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Hawkins v. Southwest Kansas Co-op Svc.

State v. James, 301 Kan. 898, 903, 349 P.3d 457 (2015) (court should construe statute "to avoid unreasonable or absurd results"). We augment our examination of the statutory language with di- rection drawn from Brabander and Enfield, although neither case is entirely analogous to the circumstances here. Hawkins filed his negligence action against multiple defendants, leading to settlements with and, thus, recoveries from two of them and a jury trial with a third that resulted in a verdict apportioning fault and fixing an amount of damages or a recovery for him. But K.S.A. 44-504 was not drafted with explicit guidance for figuring out liens and credits for employers based on third-party litigation with sequential settlements and verdicts. In navigating the statutory language, we begin with the word "recovery," since it appears in K.S.A. 44-504(b) and (d) and is integral to both subsections. As a legal term, "recovery" carries several meanings, two of which fit here. The definitions, though related, refer to different things. First, a recovery may be "[t]he obtainment of a right to something . . . by a judgment or decree." Black's Law Dictionary 1528 (11th ed. 2019) (meaning 2). And it may be "[a]n amount awarded in or collected from a judgment or decree." Black's Law Dictionary 1528 (11th ed. 2019) (meaning 4). So a "recovery" may be the right to be paid, whether or not any money is forthcoming. In that sense, an unsatisfied judgment is a recovery. But a recovery also may be an actual payment on a judgment, meaning money in hand. Working through the statutory language of K.S.A. 44-504(b), we see the Legislature directs that an employer has a subrogation lien against a "recovery" an injured employee obtains against a third-party wrongdoer. The term appears to refer to the employee's right to recover from the third party, so the lien comes into existence contemporaneously with the employee's right and attaches to any money the employee receives then or later. A recovery for loss of consortium is excluded from the employer's lien. The statutory language plainly treats both settlements and judgments as recoveries. That subsection also describes the employer's credit against future workers compensation benefits. The credit reflects the amount by which the workers compensation benefits already received exceed what the injured employee has "actually [been] paid

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Hawkins v. Southwest Kansas Co-op Svc. and recovered" from any third-party wrongdoer as of the date of the wrongdoer's payment. The actually-paid-and-recovered quali- fication on the credit tends to support reading "recovery" generally to mean a decree of or right to payment rather than money the injured employee has received. Our assessment of that part of the statute essentially matches the Tenth Circuit's approach. Enfield, 228 F.3d at 1250-51.[1]

[1]Having federal circuit authority construing state workers compensation law seemed sufficiently off the beaten procedural path to suggest an explanatory comment, if only parenthetically. Enfield worked for the City of Goodland and was injured on the job while removing a utility pole using equipment the A.B. Chance Company manufactured. Enfield sued A.B. Chance on state law products liability claims and relied on diversity jurisdiction to file the action in federal district court. The City later inter- vened to protect its rights under K.S.A. 44-504, based on the workers compensation benefits it had paid. The intervention did not disturb the district court's diversity jurisdiction. See Siloam Springs Hotel v. Century Sur. Co., 781 F.3d 1233, 1239 (10th Cir. 2015) (diversity jurisdiction determined at time complaint filed); Mattel, Inc. v. Bryant, 446 F.3d 1011, 1013 (9th Cir. 2006) (federal court retains diversity jurisdiction if nondiverse intervenor is not an essential party). After Enfield won a jury verdict against A.B. Chance, the City asked the district court to determine its lien and credit rights under K.S.A. 44-504 and, disappointed with the result, appealed that ruling. Here, of course, Southwest Kansas Co-op paid workers compensation benefits to Hawkins, and Hawkins has obtained recoveries within the meaning of K.S.A. 44-504(b). So Southwest Kan- sas Co-op has subrogation lien and future credit rights—a point nobody disputes. The value of any lien or credit is, however, a matter of considerable dispute. And that brings us to K.S.A. 44- 504(d) governing the reduction of liens and credits based on the legal fault of an employer for its employee's injuries. Unfortu- nately, the statutory language is something less than crystal clear. The reduction is triggered if the employer's negligence "is found to have contributed to" the employee's injuries. But that part of the statute is written in the passive voice, so we don't know who

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Hawkins v. Southwest Kansas Co-op Svc. specifically must make the finding of contributory negligence. That said, we have no doubt that a jury rendering a verdict fixing the employer's fault along with the named defendants and other phantom defendants in an employee's third-party action fits the legislative design. We have an appropriate jury verdict here. A district court's finding of fault following a bench trial would likewise be sufficient. We needn't speculate on whether an apportionment of fault in a court-approved settlement in a third-party action, with or without the employer's intervention, would necessarily be satisfactory. But an apportionment of fault to which the employer agrees as part of a settlement or consent decree presumably would be a binding admission sufficient for K.S.A. 44-504(d). The jury verdict here adjudicated Southwest Kansas Co-op to be 25 percent at fault for Hawkins' injuries. The next step requires applying that percentage to something to compute the amount by which the employer's subrogation lien and credit for future benefits should be reduced. The Kansas Supreme Court has charted at least part of the path for us in Brabander, 248 Kan. at 918. Con- struing the pre-1993 version of K.S.A. 44-504(d), the court held that the percentage of fault ascribed to the employer would be multiplied by the damages awarded the injured employee to determine the dollar amount of the reduction. The court was untroubled by the statutory directive that the lien or credit "shall be diminished by the percentage of the damage award attributed to the negligence of the employer." (Emphasis added.) K.S.A. 1992 Supp. 44-504(d). The phrasing of the statute is odd in that damage awards are expressed in dollar amounts, not percentages. But percentage can mean "an indeterminate part," which seems to fit more naturally than the predominate meaning of "a part of a whole expressed in hundredths." Merriam-Webster's Collegiate Dictionary 859 (10th ed. 2001). The Brabander court categorically rejected the argument that the subrogation lien itself should be reduced by the percentage of fault attributed to the employer—an otherwise plausible reading of the language. 248 Kan. at 918. But a lien reduction corresponding to the employer's percentage of legal fault would only haphazardly (and partially) rectify the inequity recognized in Negley.

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Hawkins v. Southwest Kansas Co-op Svc.

As we have said, two years after Brabander, the Legislature substituted "recovery" for the phrase "damage award" in K.S.A. 44-504(d) as part of the 1993 revision of the Workers Compensa- tion Act. The Tenth Circuit applied the amended version of K.S.A. 44-504(d) in Enfield and concluded the rewording did not change the method for computing the reduction of the employer's lien and credit in that case. So the employer's percentage of fault should be multiplied by the employee's "recovery" to yield a dollar amount reducing the lien and any credit. The Tenth Circuit rejected the idea that the amendment signaled some design to legislatively overrule Brabander. Enfield, 228 F.3d at 1252. The recovery in Enfield had to be the damages the jury awarded, since A.B. Chance was the only defendant, there were no pretrial settlements with other potential defendants, and no fault was attributed to Enfield. The Enfield court did not have a situation in which a plaintiff had settled with some defendants, yielding recoveries, and had gone to trial against a remaining defendant, yielding a recovery in the form of a verdict assessing fault and fixing damages. Where, as here, a jury has rendered a verdict apportioning fault among one or more active defendants, the plaintiff, and phantom defendants that have settled or are otherwise immune and has arrived at a dollar amount for the plaintiff's damages, those determinations should be used to calculate the reduction of the employer's workers compensation lien and future credit. The same would be true of a district court judgment entered following a bench trial. First, of course, our conclusion is consistent with Brabander and Enfield. More particularly, however, that common approach directly addresses and corrects the inequity in denying a reduction in the employer's subrogation lien or future credit based on its adjudicated fault for the employee's injuries. The fault-driven reduction aligns with the liability the employer would have faced in the employee's civil action but for the workers compensation bar. To reiterate: Without a corresponding lien and credit reduction, the employer would otherwise realize an undeserved financial break ensconced in the public policy considerations underlying the Workers Compensation Act, especially compared to those employers that pay benefits to injured employees and bear no legal fault for the injuries.

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Hawkins v. Southwest Kansas Co-op Svc.

In this case, the jury found Southwest Kansas Co-op to be 25 percent at fault and fixed Hawkins' damages at $4,081,916.50. The resulting offset or reduction against the workers compensation benefits is $1,020,479.10. In the words of K.S.A. 44-504(d), Southwest Kansas Co-op's "subrogation interest or credits against future payments . . . shall be diminished" by that amount. The impact on the subrogation lien is straightforward. As provided in K.S.A. 44-504(b), Southwest Kansas Co-op's lien was the amount it had paid to Hawkins in workers compensation benefits as of the date of recovery. The jury verdict was rendered on May 5, 2011, and we understand Southwest Kansas Co- op had paid $852,460.34 by then. After subtracting the statutory reduction from the benefits paid, the administrative law judge and the Board should have reduced the lien to $0, and Southwest Kansas Co-op would have had a deficit of $168,018.80.

Credit for Future Benefits under K.S.A. 44-504

Determining Southwest Kansas Co-op's credit for future benefits isn't quite as linear an exercise. But an employer's subrogation lien and the future credit function as an integrated whole within the workers compensation scheme. The calculation should be approached that way. The credit, like the lien, should be reduced by the employer's fault- based portion of the employee's damages as determined by the fact- finder in the third-party litigation—eliminating the inequitable wind- fall identified in Brabander. But the overall diminution of the lien and the credit should not exceed that amount, since a larger offset would effectively impose a penalty on the employer. Consistent with that purpose, an employer would be eligible for a credit only after providing additional workers compensation benefits equaling any deficit created because the statutory reduction under K.S.A. 44-504(d) exceeded the lien for benefits already provided. Here, Southwest Kansas Co-op would have had to pay $168,018.80 in workers compensation benefits to Hawkins after May 5, 2011, to be in a position to claim a credit going forward from that point. The event identified in the statute triggering the computation of the employer's credit is the injured employee's receipt of money in full or partial satisfaction of any "judgment, settlement or recovery" in the third-party action. K.S.A. 44-405(b). Under K.S.A. 44-504(b), the credit reflects the amount by which the workers compensation

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Hawkins v. Southwest Kansas Co-op Svc. benefits the employer has paid exceed the money the employee has actually received in the third-party action, after making any reduction required under K.S.A. 44-405(d). Hawkins has never received any money based on the verdict in the jury trial because the only parties found to have legal fault for his injuries were Western Steel, which had already settled and was a phantom defendant, and Southwest Kansas Co-op, which had immunity by vir- tue of the workers compensation bar. As we have explained, the district court approved the settlement with Western Steel that designated the full amount as compensation for loss of consortium. Accordingly, that settlement amount was exempt under K.S.A. 44-405(b) from any subrogation lien or future credit. (On appeal, Southwest Kansas Co-op has incidentally groused about the settlement's damage designation as a legal fiction. It may be. But Southwest Kansas Co-op chose not to intervene in Hawkins' negligence action and, thus, relinquished any platform to complain about the fiction to the district court. And the company recognizes it can't construct the platform now.) Hawkins also settled with JLG, and that settlement is not statutorily exempt from a subrogation lien or credit. But, as we have held, Southwest Kansas Co-op had its subrogation lien eclipsed by the jury verdict. That did not, however, automatically extinguish Southwest Kansas Co-op's statutory right to a credit. The terms structuring JLG's settlement through annual payments to Hawkins for 20 years impose additional wrinkles in determining any credit due Southwest Kansas Co-op. The plain language of K.S.A. 44- 504(b) treats each annual installment of $75,000 as an amount Haw- kins recovers when he receives the payment. The receipt triggers the credit. Assuming Southwest Kansas Co-op paid workers compensation benefits of more than $168,018.80 to Hawkins after May 5, 2011, the full reduction required by K.S.A. 44-504(d) would have been satisfied at that point. After that, Southwest Kansas Co-op could claim a credit to the extent a given $75,000 payment to Hawkins exceeded the additional benefits the company had paid him as of the date he received that payment. The record does not provide readily discernable information that would permit us to compute the extent of any credit.[2]

[2]We offer an illustrative, though purely hypothetical, example of how the credit would function in this case. For our illustra- tion, we assume Southwest Kansas Co-op paid $25,000 a year in

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Hawkins v. Southwest Kansas Co-op Svc. additional workers compensation benefits to Hawkins starting in 2011. We further assume Hawkins received $75,000 under the JLG settlement each May 1, starting in 2012. Southwest Kansas Co-op would have no claim for a credit in 2011, 2012, and 2013 because the difference between Hawkins' annual settlement payment of $75,000 and the benefits provided of $25,000 would not have exceeded the $168,018.80 deficit carried over from the lien reduction. In 2014, however, the company would have realized a credit of $31,981.20, reflecting the difference between the settlement payment ($75,000) and the benefits provided ($25,000) or $50,000 then reduced by the remainder of the statutory reduction ($18,018.80). In each following year, the company would have a credit equal to the difference between the $75,000 settlement to Hawkins and the workers compensation benefits provided up to then, as reduced by any existing credit. Had JLG settled with Hawkins for an immediate payment of $1.5 million rather than structured payments spread over 20 years that amount would have been used in determining the credit. The payment would have been essentially contemporaneous with the jury verdict. The $1.5 million would have been reduced by the $168,018.80, reflecting the amount by which Southwest Kansas Co-op's liability based on the jury verdict exceed the workers compensation benefits it had provided by then, yielding a credit of $1,331,981.20 against future benefits. We differ with the Enfield court in determining an employer's credit for future benefits. The Tenth Circuit's method reduces the future credit by the full amount of the employer's fault-based responsibility for the employee's damages while also reducing the employer's subrogation lien by the same amount. Enfield, 228 F.3d at 1252-53. The court doesn't explain why it takes that tack. The approach entails a form of double counting against the employer. And it disassociates the reduction of an employer's subrogation lien from the reduction of future credit when they actually are coordinated parts of a whole: The diminution of the employer's right to reimbursement for workers compensation benefits it has paid or will pay to an injured employee by an amount equivalent to the employer's fault-based responsibility for the employee's damages, thereby shielding the employee's recovery from third

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Hawkins v. Southwest Kansas Co-op Svc. parties to that extent. Our method applies the amount reflecting the employer's fault-based responsibility for those damages to both the subrogation lien and a future credit as a unitary setoff against workers compensation benefits. The Tenth Circuit (incorrectly in our view) uses the amount first to reduce the employer's lien and then a second time to reduce the employer's future credit.

The Board's Position Considered

The administrative law judge and the Board majority applied Southwest Kansas Co-op's percentage of fault, as found by the jury, to the settlement between Hawkins and JLG to calculate the subrogation lien and the credit for future benefits. Southwest Kan- sas Co-op also supported that method as an alternative way of applying K.S.A. 44-504. But we find the approach flawed in several respects. First, the language of K.S.A. 44-504(d) contemplates using both the fault allocation and the assessment of damages or the recovery for the injured employee made by a fact-finder when there is a jury trial or a bench trial. In that circumstance, the fact- finder will have heard evidence on both issues and presumably will have arrived at reasonable determination, subject to posttrial motions and appellate review. Those two findings—the employer's fault and the employee's damages—establish what the employer would have been legally responsible for absent the workers compensation bar on liability. And an offset of that amount against the employer's subrogation interest and future credit eliminates the inequity recognized in Brabander. The Tenth Circuit did precisely that in Enfield to compute the reduction in the employer's subrogation lien. The administrative law judge and the Board majority mistakenly suggest they have followed Enfield. Substituting the amount of a settlement between the employee and another party with potential fault and liability interjects an entirely different and off-kilter dynamic. A settlement, by its very nature, typically reflects a compromise that nobody thinks particularly represents the injured party's realistic recovery from the defendant in a trial. The amount is acceptable to each side, taking account of the often substantial costs and risks of litigation. Eco- nomic certainty supplants litigation brass, as plaintiffs accept less than they believe they deserve and defendants pay more than they think they should or would owe. That artificiality is accentuated

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Hawkins v. Southwest Kansas Co-op Svc. in a comparative fault case with multiple actual and phantom defendants. A given defendant may realistically face only some portion of the overall fault, so its potential liability could look quite different from other defendants. What it may be willing to pay in settlement should be quite different, as well. In short, the amount JLG spent to buy its peace in Hawkins' negligence action bears little or no obvious correlation to what the jury found as to Southwest Kansas Co-op's fault and Hawkins' damages. Neither the language in K.S.A. 44-504(d) nor a logical application of comparative fault principles suggests using JLG's settlement with Hawkins to establish the dollar amount to which the jury's finding of fault attributable to Southwest Kansas Co-op should be applied to calculate the reduction of its lien and future credit. The error was compounded here, given the terms of the settlement between JLG and Hawkins. JLG was to pay Hawkins $75,000 a year for 20 years beginning in 2012. The judge and the Board majority figured the settlement to be $1.5 million, as if it were cash on the barrelhead. But that's inaccurate. Hawkins has yet to receive half the full amount. Given the time value of money, the settlement isn't worth nearly that to Hawkins, and it has cost JLG somewhat less, since the company has retained a substantial portion of the total payout for years. The present value to Hawkins in 2011 was more in the vicinity of $1.0 million. That imposes another distorting effect the judge and the Board majority ignored. The distortion was particularly pronounced in their handling of the credit for future benefits. The concurring and dissenting Board member looked only at the settlement with JLG to calculate any reduction in Southwest Kansas Co-op's subrogation lien or future credit and discarded the jury verdict entirely. First, of course, we see no sound reason to consider the amount of the settlement with JLG at all in computing the reduction. And ignoring the jury verdict effectively reads out of existence K.S.A. 44-504(d) because it requires using a determination of fault attributable to the employer for that purpose. The Board member justified doing so because the settlement between Hawkins and JLG did not purport to apportion fault and, thus, no fault should be attributed to Southwest Kansas Co-op. That approach

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Hawkins v. Southwest Kansas Co-op Svc. effectively imposes no reduction and, not surprisingly, reflects South- west Kansas Co-op's preferred position on appeal. The company argues the outcome is eminently sound precisely because the court-approved settlement makes no finding of fault, reprising the Board member's explanation. But the argument trades on wordplay—no finding of fault is not the same as a finding of no fault. The first is the absence of a determination; the second is a determination of nil. Southwest Kansas Co-op has offered other arguments to advance this position. The company suggests that the jury verdict cannot be applied to the earlier JLG settlement. But K.S.A. 44-504(d) contemplates use of the jury findings to diminish subrogation liens that attach to settlements that precede the jury trial. Nothing in K.S.A. 44-504(b) or (d) qualifies how a jury verdict may be used or limits its use to later settlements. In a case with multiple defendants, most settlements commonly would be reached before trial. Contrary to Southwest Kansas Co-op's intimation, the settlement with JLG did not create some sort of claim or issue preclusion as to its own fault or the measure of Hawkins' damages. Southwest Kansas Co-op also suggests that the inclusion of phantom defendants for a jury's consideration in a comparative fault case can itself have distorting effects on the verdict. For example, an active defendant may be inclined to fob off liability on the phantom rather than trying to blame the plaintiff or directly attacking the plaintiff's claimed damages as inflated. In a given case, a defendant might well shape its litigation strategy that way. In this case, however, Southwest Kansas Co-op's protestation invites neither much legal consideration nor a lot of sympathy. As we have said, the company chose not to exercise its right to participate in the trial and, thus, to present evidence and argument guiding the jurors to what it viewed as the best result. Having strategically elected to remain a phantom party in front of the jury, Southwest Kansas Co-op must now bear the consequences of its decision.[3]

[3]The jury did not apportion any fault to Hawkins. But such an apportionment would not affect the methods or the actual calculations we have outlined. The calculations are driven by the jury's allocation of fault to the employer and its determination of the injured employee's damages, as fixed in the verdict. Those are not varia- bles once the jury has returned a verdict. In a negligence action,

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Hawkins v. Southwest Kansas Co-op Svc. the jury must be instructed that finding a plaintiff to be 50 percent or more at fault bars a recovery. See Nail v. Doctor's Bldg., Inc., 238 Kan. 65, 66-68, 708 P.2d 186 (1985); PIK Civ. 4th 105.01. If a jury finds a plaintiff to be at least 50 percent at fault, it returns a defense verdict without determining damages. See PIK Civ. 4th 181.04 (comparative fault verdict form). In that circumstance, the plaintiff would not realize a recovery for purposes of K.S.A. 44- 504(d).

Conclusion

We reverse the Board's determination of Southwest Kansas Co-op's subrogation lien and future credits and remand for a rede- termination of them consistent with this opinion. The lien has to be calculated as of the time of the jury verdict in Hawkins' third- party action based on the workers compensation benefits South- west Kansas Co-op had then paid. Those are matters of undisputed historical fact, effectively making the calculation a nondiscretion- ary arithmetic exercise. The lien will equal the workers compensation benefits paid less the damages (or recovery) the jury awarded Hawkins multiplied by the percentage of fault the jury attributed to Southwest Kansas Co-op. The computation will yield a negative number. In redetermining the future credit, the Board should consider each annual payment to Hawkins under the JLG settlement as a recovery actually paid and calculate any credit based on the workers compensation benefits Southwest Kansas Co-op had provided through the date of the JLG payment, once those settlement payments less the benefits paid exceeded the lien deficit. The Board, in its discretion, may reopen the record, with or without a remand to the administrative law judge, to determine the value of the credit through the most recent settlement payment from JLG to Hawkins.

Reversed and remanded with directions.

58 COURT OF APPEALS OF KANSAS VOL. 58

Hefner v. Deutschner

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No. 119,201

WILLIAM F. HEFNER, Appellee, v. CHRIS A. DEUT- SCHER,CHARLES O. ROTTINGHAUS, AND DRS. DEUTSCHER & ROTTINGHAUS, OPTOMETRISTS, P.A., (F/K/A DRS. DEUTSCHER, HEFNER & ROTTINGHAUS, OPTOMETRISTS, P.A., Appellants.

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SYLLABUS BY THE COURT

1. CONTRACTS—Interpretation---Determination of Parties' Intent. The most important rule when interpreting written contracts is to ascertain the parties' intent through the plain language of the written contract if possible. The law favors reasonable interpretations over absurd interpretations of a written contract.

2. SAME—Anticipatory Breach Doctrine—-Completed Breach of Contact. The doctrine of anticipatory breach requires a complete renunciation of the person's obligation under a contract before performance of the contract is due. Because an anticipatory breach requires a complete renunciation of the person's obligation under a contract, an anticipatory breach is considered a completed breach of contract under Kansas law.

3. SAME—Employment Contract—Threatened Breach of Contract. A threatened breach of contract as stated under the parties' employment contract is something distinct from a completed breach of contract. Moreover, the phrase "threatened breach of contract" includes a broad range of acts that communicate or express an intent to violate the employment contract.

4. SAME—Employment Contract—Threatened Breach Not Same as Anticipatory Breach Doctrine. In this case, the phrase "threatened breach of contract" as stated in the parties' employment contract is not equivalent to the doctrine of anticipatory breach.

5. SUMMARY JUDGMENT—Appropriate if No Material Facts in Dispute. An order of summary judgment is appropriate only when no material facts are in dispute. When determining the existence of material facts in dispute, a trial court must resolve all facts and inferences in the nonmoving party's favor.

6. CONTRACTS—Employment Contract Breach—Facts in Dispute in This Case. In this case, whether the moving party threatened to breach his employment contract by obtaining a tradename and searching for future office space constituted a material fact in dispute.

Appeal from Shawnee District Court; TERESA L. WATSON, judge. Opinion filed April 10, 2020. Reversed and remanded with directions.

VOL. 58 COURT OF APPEALS OF KANSAS 59

Hefner v. Deutscher

Charles T. Engel and Derek D. Ulrich, of Engel Law, P.A., of Topeka, and Jay F. Fowler and Amy S. Lemley, of Foulston Siefkin LLP, of Wichita, for appellants.

Roger N. Walter, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Topeka, for appellee.

Before HILL, P.J., GREEN and WARNER, JJ.

GREEN, J.: This litigation arises out of the termination of Wil- liam F. Hefner from a corporation of optometrists for threatening to breach the noncompete clause of his employment agreement with the corporation. Hefner, Chris A. Deutscher, and Charles O. Rottinghaus were all optometrists who practiced together as Drs. Deutscher, Hefner & Rottinghaus, Optometrists, P.A. (The Cor- poration). When the Corporation refused to pay Hefner for his stock and other interests in the Corporation, Hefner sued the Cor- poration, Deutscher, and Rottinghaus for breach of his employment and redemption agreements and for wrongful termination. He also sued Deutscher and Rottinghaus individually for breach of fiduciary duty. The trial court considered the parties' competing motions for summary judgment. It dismissed Hefner's wrongful termination claim; it granted Hefner's request for summary judgment on his breach of contract claim; and it denied Deutscher and Rottinghaus' motion for summary judgment on Hefner's breach of fiduciary duty claim. The trial court sitting without a jury ruled that Deutscher and Rottinghaus had breached their fiduciary duty to Hefner and determined that the Corporation, as well as Deutscher and Rottinghaus, individually, owed Hefner $1,175,551.87 in damages. The Corporation, Deutscher, and Rottinghaus appeal, arguing that the trial court wrongly granted Hefner's summary judgment motion on his breach of contract claim. They argue that the trial court misinterpreted key language in Hefner's employment agreement and weighed disputed material facts against them. They also argue that the trial court miscalculated its award of damages. Moreover, Deutscher and Rottinghaus argue that they did not breach any fiduciary duty to Hefner. They also argue that the trial court erred in holding them individually responsible for Hefner's damages.

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Hefner v. Deutschner

The ultimate question is whether the trial court properly granted Hefner's summary judgment motion in his breach of contract claim. Because we conclude that the trial erred in granting summary judgment in favor of Hefner on this claim, we reverse. Additionally, because the trial court's breach of fiduciary duty and damages award rulings hinged on the trial court properly granting summary judgment on Hefner's breach of contract action, we reverse those decisions as well and remand for a new trial.

Uncontroverted Facts

In 1998, Hefner began practicing optometry with Deutscher. Later, Rottinghaus joined their optometry practice. Together, they formed the Corporation. Deutscher and Hefner each owned 40% of the Corporation's stock. Rottinghaus owned the remaining 20% of the Corporation's stock. Deutscher served as the Corporation's president while Hefner served as the Corporation's director. Rot- tinghaus had no official position within the Corporation. As an employee of the Corporation, Hefner signed an Em- ployment Agreement and a redemption agreement with the Cor- poration. Those instruments governed the terms of his employment. Subparagraph 14(a) of Hefner's Employment Agreement barred Hefner from competing with the Corporation within Shaw- nee County, Kansas, or its contiguous counties during his employment and for three years following his employment with the Cor- poration. Subparagraph 14(d) of Hefner's Employment Agree- ment allowed the Corporation to seek injunctive relief or any other relief "granted to [the] Corporation by law or under [the Employ- ment Agreement] or other agreements" for "any breach or threatened breach by Hefner of the provisions of [] paragraph 14." Ad- ditionally, under the terms of Hefner's redemption agreement, if he breached any of his duties under the employment agreement, the Corporation could terminate him without repurchasing his stock and other interests in the Corporation. The redemption agreement stated that under those circumstances, Hefner agreed "to transfer all [of] his stock and other interests in [the] Corpora- tion and its business to [the] Corporation for no further consideration."

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Hefner v. Deutscher

During Hefner's employment, Deutscher and Hefner's relationship soured. And sometime in September 2016, Deutscher and Hefner agreed that Hefner should leave the Corporation. So, Deutscher, acting on behalf of the Corporation, and Hefner began negotiating Hefner's exit agreement. On October 14, 2016, Hefner first proposed two alternative exit agreements: Under the first proposal, the Corporation or Deutscher and Rottinghaus, individually, would buy Hefner's shares in the Corporation for $100,000 and buy Hefner's remaining interests in the Corporation for $750,000. Under this proposal, Hefner would abide by the three-year noncompete clause in his employment agreement. Under the second proposal, the Corpora- tion would buy Hefner's shares in the Corporation for $100,000 but release Hefner from complying with the three-year noncompete clause in his employment agreement. Five days later, on October 19, 2016, Deutscher tentatively accepted Hefner's second proposal. The Corporation would buy Hefner's shares in the Corporation for $100,000 and release Hef- ner from the noncompete clause. Deutscher's acceptance was con- ditioned on a successful negotiation of a written exit agreement. That same day, the parties began negotiating specific dates for the termination of Hefner's employment. Deutscher first proposed that the Corporation terminate Hefner's employment and release Hefner from his noncompete clause on December 1, 2016. Deutscher also suggested that Hefner sign the exit agreement on November 1, 2016. On October 24, 2016, however, Hefner submitted a counterproposal. He proposed that the Corporation release him from his noncompete clause on December 1, 2016, while still employing him through March 31, 2017. Hefner also suggested that the parties execute the exit agreement on Novem- ber 1, 2016. But Deutscher had additional concerns about Hefner's counterproposal. As a result, on November 11, 2016, Deutscher made certain suggestions regarding those concerns. He also agreed to Hefner's proposed amended timeline. This would release Hefner from his noncompete clause on December 1, 2016, and terminate Hefner's employment with the Corporation on March 31, 2017. Deutscher then suggested that he and Hefner execute the exit agreement on November 21, 2016.

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Hefner v. Deutschner

Meanwhile, Hefner began considering his future employment. Around October 28, 2016, Hefner and a real estate agent looked at potential office spaces in Shawnee County for a new optometry practice. On November 29, 2016, Hefner applied for the tradename "Hefner Family Vision, LLC" with the Kansas Optometry Board (Board), using his home address in Topeka as the practice location. Deutscher discovered that Hefner had applied for the tradename that same day when a member of the Kansas Optome- trist Association, who had read the agenda for the Board's upcom- ing meeting, called the Corporation's office. The next day, at the Board's November 30, 2016 meeting, the Board approved Hef- ner's tradename application. Hefner never executed an exit agreement with Deutscher. In- stead, on December 7, 2016, Hefner submitted a formal letter of resignation with the Corporation. In his letter, Hefner stated that he would continue to work as an employee of the Corporation for six months as required under his employment agreement. He also stated that he would tender his stock and other interests in the Cor- poration upon the Corporation's repurchase of his stock as stated in his redemption agreement. But Hefner never explained to the Corporation why he was resigning instead of finalizing the previously agreed to exit agreement. Unbeknownst to the Corporation, starting on November 9, 2016, Hefner had started interviewing with optometry schools for employment as a teacher. Thus, Hefner was considering practicing in Shawnee County and becoming a teacher at the same time. Ac- cording to Hefner, he decided that he wanted to teach instead of practicing optometry on December 4, 2016; this decision precipi- tated his resignation on December 7, 2016. Hefner e-mailed a Board member that he would not be needing his tradename on January 3, 2017. After resigning, Hefner continued to work for the Corporation for a month. Then, on January 7, 2017, Deutscher, acting on behalf of the Corporation, terminated Hefner's employment for violating the noncompete clause of his employment agreement. Deutscher cited Hefner's application for a tradename as evidence he violated the noncompete clause. Deutscher asserted that Hefner's violation required him to "transfer all of [his] stock and other interests in

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Hefner v. Deutscher the Corporation and its business to the Corporation for no further consideration" as stated in Hefner's redemption agreement. About a month after Hefner's termination, the Corporation changed its name to "Drs. Deutscher & Rottinghaus, Optometrists, P.A." Shortly afterwards, Hefner received an offer to teach optometry. He accepted this offer sometime in March 2017.

Hefner Sues

Hefner sued the Corporation for breach of contract and wrongful termination. He also sued Deutscher and Rottinghaus individually for breach of fiduciary duty. For his breach of contract claim, Hefner alleged that the Corporation had violated his employment and redemption agreements when it terminated his "employment prematurely without valid justification" and without repayment of his stock and other interests in the Corporation. For his wrongful termination action, Hefner repeated that the Corpo- ration had terminated his "employment without valid justification" and without repayment of his stock and other interests. Then, for his breach of fiduciary duty claim, Hefner alleged that Deutscher and Rottinghaus had violated their fiduciary duty to him as the Corporation's "majority stockholders and directors" by terminating his employment without cause. Hefner requested $1,469,848 in damages: $164,899 for lost compensation, $1,865 in lost fringe benefits, and $1,303,084 in lost "payment for stock and other interests in Corporation equal to his 40% interest . . . ." The Corporation, Deutscher, and Rottinghaus jointly answered Hefner's petition. They asserted that they had done nothing wrong because "Hefner's behavior violated paragraph[] 14 of his Employ- ment Agreement and justified termination for cause without prior notice."

Competing Summary Judgment Motions

The parties both moved for summary judgment. Hefner requested that the trial court grant his request for partial summary judgment against the Corporation on his claims for breach of contract and wrongful termination. Hefner alleged that the only question before the trial court on his breach of contract and wrongful

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Hefner v. Deutschner termination claims was if he "competed with the Defendant Cor- poration in violation of the Employment Agreement." He argued that there was no basis for the Corporation terminating his employment for cause because he never conducted business in competition with the Corporation. As a result, Hefner argued that the only factual question in dispute was if Deutscher and Rottinghaus breached their fiduciary duty to him and, if so, the amount of damages the Corporation, Deutscher, and Rottinghaus owed him. The Corporation, Deutscher, and Rottinghaus responded that Hefner's summary judgment argument ignored the provisions of his employment agreement that supported his termination for cause. Specifically, the Corporation, Deutscher, and Rottinghaus argued that Hefner ignored that subparagraph 14(d) of his Em- ployment Agreement. This subparagraph allowed the Corporation to invoke all "rights or remedies granted to [it] by law or under [Hefner's Employment Agreement] or other agreements" if Hefner committed any "breach or threatened breach." (Emphasis added.) They further argued that Hefner's tradename procurement and office space search while still in the Corporation's employment, at the very least, constituted a threatened breach of the noncompete clause of Hefner's employment agreement. In making those arguments, the Corporation, Deutscher, and Rottinghaus contended that the phrase "threatened breach" merely required the Corporation to feel at risk of injury or harm from Hef- ner's actions. Moreover, the Corporation, Deutscher, and Rot- tinghaus emphasized that Hefner had not accepted any of the proposed exit agreements when he obtained the tradename and conducted his search for an office space. They cited to their attorney's communications with Hefner's attorney. Based on those communications, both attorneys acknowledged that the proposed exit agreements were not final until the parties had agreed on all terms and had formally executed the agreement. They also argued that only the execution of the exit agreement, not the exit agreement negotiations, released Hefner from his obligation to comply with the noncompete clause in his employment agreement. The Corporation, Deutscher, and Rottinghaus also relied on the preceding facts and arguments when moving for summary judgment against Hefner. In short, they argued that because Hef- ner obtained the tradename and looked for an office space while

VOL. 58 COURT OF APPEALS OF KANSAS 65

Hefner v. Deutscher the noncomplete clause remained in effect, Hefner violated the noncompete clause of his employment agreement by associating with another optometry practice in Shawnee County or threatening to do so. As a result, the Corporation, Deutscher, and Rot- tinghaus maintained that Hefner's breach of contract, wrongful termination, and breach of fiduciary duty claims were unfounded. On the other hand, Hefner argued that the trial court should deny the Corporation, Deutscher, and Rottinghaus' summary judgment motion. He maintained that "a reasonable interpretation of [the undisputed] facts in light of the environment out of which they arose," i.e., the ongoing exit agreement negotiations, would require summary judgment in his favor. Alternatively, Hefner argued that even if he threatened to breach the noncompete clause, the plain language of subparagraph 14(d) of his Employment Agreement did not release the Corporation from its obligation to pay him in accordance with his redemption agreement. Instead, it allowed the Corporation only the remedy of injunctive relief. The trial court held a hearing on the parties' summary judgment motions. At the hearing, the parties repeated their earlier arguments. Then, the trial court asked the parties several questions, including the following: Was Hefner's wrongful termination claim duplicative of his breach of contract claim? Were material facts still in dispute because the parties' summary judgment arguments required the court to infer the parties' intent? And was the phrase "threatened breach" in subparagraph 14(d) of Hefner's Em- ployment Agreement equivalent to the doctrine of an anticipatory breach of contract? In response to the trial court's duplicative claims question, Hefner agreed that his breach of contract and wrongful termination claims were identical because both hinged on the Corporation violating identical provisions of his employment and redemption agreements. Concerning the trial court's factual dispute question, Hefner contended that the only remaining dispute was whether the trial court could find that he committed a breach or threatened breach of the noncompete clause based on the undisputed material facts. The Corporation, Deutscher, and Rottinghaus countered that if the court needed to infer Hefner's intent to decide whether he

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Hefner v. Deutschner committed a breach or threatened breach, then summary judgment would be inappropriate. Hefner, in responding to the trial court's question equating the phrase "threatened breach" to the doctrine of an anticipatory breach of contract, initially rejected the trial court's equivalency position that the phrase "threatened breach" had the same meaning as the doctrine of anticipatory breach of contract. But he later agreed that those two legal theories had the same meaning when the trial court told Hefner this argument worked in his favor. The Corporation, Deutscher, and Rottinghaus responded that the trial court needed to look at the plain language of the contract to understand the contract's terms and the parties' intent. The trial court granted Hefner's motion for partial summary judgment on his breach of contract claim, denied the Corporation, Deutscher, and Rottinghaus' motion for summary judgment in Hef- ner's breach of contract and fiduciary duty claims, and granted the Corporation, Deutscher, and Rottinghaus' motion for summary judgment in Hefner's wrongful termination claim. Regarding Hefner's breach of contract claim, the trial court stated: "The facts material to this claim [were] largely undisputed." It then ruled that Hefner's breach of contract claim hinged on if he violated his employment agreement by threatening to breach the noncompete clause in subparagraph 14(a). The trial court ruled that the phrase "threatened breach" under subparagraph 14(d) was the same or equivalent to the doctrine of anticipatory breach of contract. Based on this determination, the trial court ruled that to violate the noncompete clause, Hefner had to "declare a positive and unequivocal intent to breach" the noncompete clause—the standard for determining if an anticipatory breach of contract has occurred. The trial court then found that procuring a tradename and looking at potential office spaces merely constituted an "exploratory activity" that did not "declare[] a positive and unequivocal intent to breach [the noncompete clause]." Thus, the trial court ruled that Hefner did not breach his employment agreement. And the court then held that the Corporation, Deutscher, and Rottinghaus breached Hefner's employment and redemption agreements for terminating him without cause and refusing to repurchase his stock and other interests in the Corporation.

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Hefner v. Deutscher

Also, the trial court dismissed Hefner's wrongful termination claim. It explained that because Hefner alleged that the Corpora- tion violated the same duties in both his breach of contract and wrongful termination claims, the two claims were "one and the same." Finally, the trial court denied Hefner's motion for summary judgment on his breach of fiduciary duty claim because although it believed "the evidence [was] thin," it found that "material questions of fact about [Deutscher and Rottinghaus'] motives and whether Hefner was terminated for a legitimate business reason" remained in dispute. The trial court explained that Deutscher and Rottinghaus' knowledge when terminating Hefner was "material to whether [Deutscher and Rottinghaus] had a legitimate business reason" for Hefner's termination.

Bench Trial

Then, the trial court held a three-day bench trial on Hefner's breach of fiduciary duty claim. The trial court ruled that Deutscher and Rottinghaus had breached their fiduciary duty to Hefner because their motives for terminating Hefner were not made "in fairness and good faith to the [C]orporation." Because Deutscher and Rottinghaus broke their fiduciary duty to Hefner, the trial court ruled that Deutscher and Rottinghaus were personally liable for any damages entitled to Hefner. Then, the trial court ruled that Hefner's expert's testimony on the amount of damages owed was more persuasive than the Corporation, Deutscher, and Rot- tinghaus' expert testimony. So, it determined that the Corporation, Deutscher, and Rottinghaus owed Hefner a total of $1,175,551.87 in damages. The Corporation, Deutscher, and Rottinghaus timely appealed.

Did the Trial Court Err When It Granted Summary Judgment in Favor of Hefner's Breach of Contract Claim?

On appeal, the Corporation, Deutscher, and Rottinghaus make a two-part argument why the trial court erred when it granted summary judgment in Hefner's favor on his breach of contract claim. First, the Corporation, Deutscher, and Rottinghaus contend that

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Hefner v. Deutschner the trial court wrongly determined that the phrase "threatened breach" in Hefner's employment agreement had the same equivalence as the doctrine of anticipatory breach of contract. The Corporation, Deutscher, and Rottinghaus contend that the trial court should have determined the meaning of the phrase "threatened breach" by applying the plain language of Hefner's employment agreement. They further contend that under the plain language of Hefner's employment agreement, it is readily apparent that a threatened breach encompasses a broader range of conduct than an anticipatory breach of contract. Thus, the Corporation, Deutscher, and Rottinghaus argue that the trial court premised its summary judgment ruling on an errant interpretation of Hefner's employment agreement. Second, the Corporation, Deutscher, and Rottinghaus maintain that the trial court weighed disputed material facts in Hefner's favor when granting Hefner's summary judgment motion. They argue that whether Hefner threatened to breach the noncompete clause in his employment agreement hinged on Hefner's intent. As a result, they contend that the trial court wrongly made credibility determinations when it granted summary judgment in Hefner's favor. Hefner counters that the Corporation, Deutscher, and Rottinghaus never objected to the trial court's decision equating the phrase "threatened breach" in his employment agreement to the doctrine of an anticipatory breach of contract. Thus, Hefner alleges that the Corporation, Deutscher, and Rottinghaus' argument about the trial court's interpretation of the phrase "threatened breach" is not properly before this court. Notwithstanding this argument, Hefner also argues that the trial court correctly granted summary judgment on his breach of contract claim because the phrase "threatened breach" and the doctrine of anticipatory breach of contract have the same meaning. He contends that no reasonable interpretation of the facts support that he clearly and unequivocally declared an intention not to comply with the noncompete clause when he obtained a tradename and searched for an office space. Alternatively, Hefner argues that even if he committed a threatened breach of the noncompete clause, the plain language of his employment agreement shows that the Corporation, Deutscher, and Rot- tinghaus could obtain only injunctive relief. He further argues that nothing in his employment or redemption agreements allowed the Corporation to forfeit his stock and other interests in the Corporation for a threatened breach.

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Hefner v. Deutscher

Standard of Review

Our Supreme Court has implemented the following standard for reviewing an order granting summary judgment:

"'"Summary judgment is appropriate when the pleadings, depositions, an- swers 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 when we find reasonable minds could differ as to the conclusions drawn from the evidence, summary judgment must be denied."' [Citation omitted.]" Patterson v. Cowley County, Kansas, 307 Kan. 616, 621, 413 P3d 432 (2018).

Yet, to the extent that the trial court's summary judgment order hinged on interpreting Hefner's employment and redemption agreements, this court exercises de novo review. Born v. Born, 304 Kan. 542, 554, 374 P.3d 624 (2016). This court also exercises de novo review when considering whether a contract is ambiguous. Waste Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 964, 298 P.3d 250 (2013). Whether a party breached a certain provision of a contract, however, constitutes a question of fact. Peterson v. Ferrell, 302 Kan. 99, 104, 349 P.3d 1269 (2015).

Preservation

Before addressing the Corporation, Deutscher, and Rot- tinghaus' arguments, we must first address a couple of Hefner's contentions. Specifically, we must consider Hefner's contention that any threatened breach of the noncompete clause of his employment agreement allowed the Corporation to seek only injunctive relief. Also, we must address Hefner's contention that the Cor- poration, Deutscher, and Rottinghaus never objected to the trial court's ruling that the phrase "threatened breach" had the same meaning as the doctrine of an anticipatory breach of contract. Hefner's contention that any threatened breach of the noncompete clause in his employment agreement allowed the Corporation to seek only injunctive relief is not properly before this court. The

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Hefner v. Deutschner trial court did not rely on this argument when it granted summary judgment in Hefner's favor on his breach of contract claim. In- stead, the trial court determined that under its interpretation of the phrase "threatened breach" and the facts of the case, Hefner never violated his employment agreement. If Hefner took issue with the trial court's failure to adopt his argument that the Corporation could seek only injunctive relief against any action for threatened breach, he was required to cross- appeal this issue. Hefner's failure to cross-appeal precludes us from reviewing this issue or any other rulings adverse to Hefner. See Cooke v. Gillespie, 285 Kan. 748, 755, 176 P.3d 144 (2008) (holding that an appellee's failure to cross-appeal precluded the court from considering issues advocated below but not reached by the trial court). Regardless, even if Hefner's argument were properly before this court, this argument is at variance with the plain meaning of subparagraph 14(d). Subparagraph 14(d) of Hefner's Employment Agreement states that if Hefner breached or threatened to breach any provisions of paragraph 14, which includes the noncompete clause, the "Corporation shall, in addition to other rights or remedies granted to [the] Corporation by law or under this or other agreements, be specifically entitled to an injunction restraining Hefner from competing . . . ." Subparagraph 14(d) also states that "[n]othing in [] paragraph [14] shall be construed as prohibiting the Corporation from pursuing any other remedies available to [the] Corporation for breach or threatened breach, including recovery of damages from Hefner." So, in addition to the right to injunctive relief, the plain language of subparagraph 14(d) states that the Corporation may use any rights granted to it by law, by the employment agreement, or by any other agreements with Hef- ner. Thus, despite Hefner's argument to the contrary, the plain language of subparagraph 14(d) of Hefner's employment agreement shows that the Corporation could seek any relief entitled to it by law or by contract for a threatened breach of the noncompete clause. For this reason, Hefner’s injunctive relief argument is fa- tally flawed. Next, Hefner's argument that the Corporation, Deutscher, and Rottinghaus never objected to the trial court's interpretation of the phrase "threatened breach" is baseless. As correctly noted by the

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Hefner v. Deutscher

Corporation, Deutscher, and Rottinghaus, the trial court sua sponte interpreted that the phrase "threatened breach" had the same meaning as the doctrine of anticipatory breach of contract while considering the parties' summary judgment motions. When Hefner agreed with the trial court that the phrase "threatened breach" was equivalent to the doctrine of anticipatory breach of contract, the Corporation, Deutscher, and Rottinghaus countered that the trial court should look to the plain language of Hefner's employment agreement to define the phrase "threatened breach." So, the Corporation, Deutscher, and Rottinghaus explicitly took issue with the trial court's interpretation of the phrase "threatened breach" when it sua sponte suggested that the phrase had the same meaning as the doctrine of anticipatory breach of contract. As a result, the Corpora- tion, Deutscher, and Rottinghaus' challenge to the trial court's interpretation of the phrase "threatened breach" is properly before us.

Defining Threatened Breach Having discussed what issues are properly before us, we will consider the Corporation, Deutscher, and Rottinghaus' argument that the trial court misinterpreted the phrase "threatened breach" as used in Hefner's employment agreement. To consider this argument, we must first consider the rules of contract interpretation. "'The primary rule for interpreting written contracts is to ascertain the parties' intent. If the terms of the contract are clear, the intent of the parties is to be determined from the language of the contract without applying rules of construction.' [Citation omitted.]" Peterson, 302 Kan. at 104. The law favors a reasonable interpretation of a contract that conforms to the contract's purpose. Absurd interpretations should be avoided. Waste Connections, 296 Kan. at 963. This means that when interpreting contracts, courts must construe unambiguous phrases in accordance with their plain, general, and common meanings. Hall v. JFW, Inc., 20 Kan. App. 2d 845, Syl. ¶ 3, 893 P.2d 837 (1995). Additionally, unless language in the contract contains doubt- ful or conflicting meanings under a reasonable interpretation, courts will determine that a disputed term is unambiguous. Geer v. Eby, 309 Kan. 182, 192, 432 P.3d 1001 (2019). Here, the noncompete clause—subparagraph 14(a) of Hef- ner's Employment Agreement—required Hefner to agree not to

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Hefner v. Deutschner compete with the Corporation "[d]uring employment and during a period of thirty-six (36) months after termination or ceasing of employment for whatever reason or cause." Competition under subparagraph 14(a) included "engag[ing] directly or indirectly, either personally or as an employee, associate, partner, manager, agent, officer, director, stockholder, or otherwise be connected in any manner with the ownership, management, operation or control of any [optometry] business" located in Shawnee County, Kansas, or its contiguous counties. On the other hand, subparagraph 14(d) of Hefner's Employ- ment Agreement outlined the Corporation's remedies against Hef- ner should he violate the noncompete clause under subparagraph 14(a). Subparagraph 14(d) provided that "any breach or threatened breach . . . of the provisions of this paragraph 14" allowed the Corporation "in addition to other rights or remedies granted to [the] Corporation by law or under this or other agreements, be specifically entitled to an injunction restraining Hefner from" competing against the Corporation. (Emphasis added.) Then, subparagraph 14(d) modified what actions constituted a violation of Hef- ner's noncompete clause. Thus, a breach or a threatened breach of the noncompete clause would constitute a violation. Here, the real conflict revolved around the meaning of the phrase "threatened breach." Specifically, the trial court ruled that the phrase "threatened breach" under subparagraph 14(d) of Hef- ner's employment agreement was equivalent to the doctrine of an anticipatory breach of contract. The trial court seemingly made this comparison because no provision of Hefner's employment agreement or redemption agreement expressly defined the phrase "threatened breach." But the trial court never attempted to interpret the phrase "threatened breach" in conjunction with the plain language of subparagraph 14(d). Under our rules of contract interpretation, this was the first step the trial court should have taken to determine the phrase's meaning. See Geer, 309 Kan. at 192. Thus, we must consider the meaning of the phrase "threatened breach" under its common meaning. Then, assuming the phrase's common meaning is unambiguous, we must compare the phrase "threatened breach" under its common meaning to the doctrine of anticipatory breach of contract. If the two are not legally equivalent, then the trial court erred.

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Hefner v. Deutscher

Black's Law Dictionary defines "breach" as "[a] violation or infraction of a law, obligation, or agreement, [especially] of an official duty or a legal obligation, whether by neglect, refusal, resistance, or inaction." Black's Law Dictionary 232 (11th ed. 2019). So, to "breach" the noncompete clause Hefner must have actually "engaged directly or indirectly, either personally or as an employee, associate, partner, manager, agent, officer, director, stockholder, or otherwise be connected in any manner with the ownership, management, operation or control of any [optometry] business" located in Shawnee County, Kansas, or its contiguous counties. Black's Law Dictionary defines "threat" as "[a] communicated intent to inflict harm or loss on another or on another's property; a declaration, express or implied, of an intent to inflict loss or pain on another." (Emphases added.) Black's Law Dictionary 1783 (11th ed. 2019). Webster's Dictionary defines "threat" as "[a]n expression of an intention to inflict something harmful." (Emphasis added.) Web- ster's II New Riverside University Dictionary 1205 (1984). And it defines "threaten" as "[t]o express a threat against," "[t]o serve as a threat," "[t]o give signs or warning of," or "[t]o announce as possible." Webster's II New Riverside University Dictionary 1205 (1984). The Corporation, Deutscher, and Rottinghaus ask us to interpret the term "threaten" as "causing someone to feel vulnerable or at risk." Hefner counters that we should interpret the term "threaten" as "to utter threats against" or "to announce as intended or possible." As a result, both parties agree that a threat includes an intent to do harm. But the parties disagree on what acts can convey that intent. The Cor- poration, Deutscher, and Rottinghaus want us to interpret the term "threaten" as including a broad range of activities while Hefner wants us to interpret the term "threaten" as requiring an explicit oral statement of an intent to harm. A review of the definitions of the term "threat" and "threaten" indicate that although threats may be oral, they do not have to be. The terms "communicate" and "express" as used in the Black's Law Dic- tionary definition of "threat" and Webster's Dictionary definition of "threat," respectively, have broad meanings. People may communicate or express ideas in several ways, which do not always involve an oral statement. Indeed, in the context of criminal law, our Su-

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Hefner v. Deutschner preme Court has recognized that criminal threats may be communicated through nonverbal actions. See State v. Howell & Taylor, 226 Kan. 511, 515, 601 P.2d 1141 (1979) (holding that the term "communication" in the criminal threat statute included physical acts establishing the defendant's intent), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). Under the Black's Law Dictionary and Webster's Dictionary definitions, the key to determining whether an act constitutes a threat is if the act shows an intent to harm. Thus, under the dictionary definitions of the term "threaten," even subtle physical acts could constitute a threat if evidence existed showing that a person intended to cause harm through those subtle acts. Although Hefner disagrees with the Corporation, Deutscher, and Rottinghaus' suggested interpretation of the term "threaten," Hefner never argues that the term "threaten" is ambiguous. In- stead, he argues that there is no reason to adopt a broader definition of the term "threaten" than a narrower definition of the term "threaten." Yet, Hefner's argument ignores that if a term has a commonly understood meaning, then courts must interpret that term under its common meaning. Under the common meaning of the term "threaten," a range of actions may communicate or express an intent to harm. Besides, Hefner's argument ignores that Subparagraph 14(d) of his employment agreement was drafted to protect the Corpora- tion's interests. Because subparagraph 14(d) was drafted to protect the Corporation's interests, it would be unreasonable to interpret the word "threaten" as used in the phrase "threatened breach" to have a narrower meaning. Using a narrower definition of the term "threaten" would expose the Corporation to greater risk. Moreo- ver, adopting a narrow definition of the term "threaten," would violate the rule favoring a reasonable interpretation of a contract that conforms to the contract's purpose. Waste Connections, 296 Kan. at 963. So, the terms "threaten," and "breach" are unambiguous and have a commonly understood meaning. We believe a "threatened breach," in general, can be summarized as follows: A threatened breach includes an act or set of circumstances that would lead a party to reasonably believe that a breach of contract, although not having yet occurred, is imminent and is likely to occur or happen.

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Hefner v. Deutscher

This act or set of circumstances can be proved by verbal, oral, or physical action. Conversely, an anticipatory breach, also known as an anticipatory repudiation, requires "a clear and unequivocal refusal to perform" a contractual obligation. Burcham v. Unison Bancorp, Inc., 276 Kan. 393, 408, 77 P.3d 130 (2003). The person committing the anticipatory breach must refuse to perform his or her contractual obligation before performance is due. Barnett v. Oliver, 18 Kan. App. 2d 672, 683, 858 P.2d 1228 (1993). This refusal constitutes a complete renunciation of the person's obligation. Ricketts v. Adamson, 483 U.S. 1, 17, 107 S. Ct. 2680, 97 L. Ed. 2d 1 (1987). Moreover, because an anticipatory breach involves a clear and unequivocal refusal to perform, Kansas courts consider an anticipatory breach a completed breach of contract. See Haw- kinson v. Bennett, 265 Kan. 564, 602, 962 P.2d 445 (1998). Hence, it is readily apparent that the phrase "threatened breach" under the phrase's plain, general, and common meaning is distinguishable from an anticipatory breach of contract. First, although a threatened breach may be established by a broad range of acts that communicate or express an intent to violate the employment agreement, an anticipatory breach requires evidence of a clear and unequivocal refusal to perform. Thus, the definition of an anticipatory breach is narrower than the definition of a threatened breach. Second, an anticipatory breach includes a timing element—a person commits an anticipatory breach by showing an intention not to perform before performance of the contract is due. In other words, the repudiation often occurs when performance is not yet due. The timing requirement exists because anticipatory breaches often involve buyer-seller or service contracts. In the context of Hefner's employment agreement, however, there was no specific date when his performance was due. Indeed, Hefner had a continuing obligation to perform as an optometrist for the mutual benefit of him and the Corporation. As a result, he was bound to comply with the provisions of his employment agreement throughout the duration of his employment agreement.

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Hefner v. Deutschner

Third, an anticipatory breach is a completed breach of contract under Kansas law. Nevertheless, the plain language of subparagraph 14(d) shows that a threatened breach is not a completed breach of the employment contract because it implies that there has not been a positive or unequivocal refusal to perform the terms of the employment agreement. The disjunctive "or" between "any breach" and "threatened breach" shows that when the employment agreement was drafted, the drafters intended for a threatened breach to mean something other than a completed breach of the employment agreement. Thus, this disjunctive proposition (completed breach or threatened breach) expresses a choice, or an alternative, between two things which cannot both be the case if they are a true disjunction. Fourth, the trial court's comparison of the phrase "threatened breach" to the doctrine of an anticipatory breach of contract ignored that the phrase "threatened breach" is common language in employment contracts. In fact, language that is similar to subparagraph 14(d)'s language is included in the "Employment Agree- ment" template in Business Transactions Solutions by Alan S. Gutterman. See Business Transactions Solutions § 166:201 (2020). Moreover, there have been many cases concerning whether employees threatened to breach their employment contracts. None of the cases we found during our research equated the phrase "threatened breach" as used in an employment agreement to the doctrine of an anticipatory breach of contract. See, e.g., Matter of Udell, 18 F.3d 403, 409 (7th Cir. 1994) (holding that a threatened breach as stated in noncompete clause meant a "present act," i.e., an existing threat); McLain v. Nursefinders of Mobile, Inc., 598 So. 2d 853, 853 (Ala. 1992) (in malicious prosecution case, holding that former employer had probable cause to sue former employee for injunctive relief for employee's threatened breach of noncompete clause after employee indicated to employer that she was interested in working for a direct competitor); Naegele v. Biomedical Sys. Corp., 272 S.W.3d 385, 391 (Mo. Ct. App. 2008) (holding that an employee did not threaten to breach her noncompete clause after engaging in fact specific analysis about whether the disputed act constituted a threatened breach); John G. Bryant Co. v. Sling Testing & Repair, Inc., 471 Pa. 1, 7,

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Hefner v. Deutscher

369 A.2d 1164 (1977) (enforcing a noncompete clause for a continued threatened breach because "[i]t is not the initial breach of a covenant which necessarily establishes the existence of irrepara- ble harm but rather the threat of the unbridled continuation of the violation . . ."); see also The Mastro Grp., LLC v. Am. Rest. Enter- prises, Inc., No. 1 CA-CV 06-0456, 2008 WL 4017948, at *5 (Ariz. Ct. App. 2008) (unpublished opinion) (distinguishing between a restaurant's claim for threatened breach of a noncompete clause from its anticipatory breach of contract claim). In short, the trial court's determination that the phrase "threatened breach" was legally equivalent to anticipatory breach contains critical flaws. For example, an anticipatory breach is often referred as a completed breach of contract when a promisee or promisor expresses a clear and unequivocal intent to no longer perform by the terms of contract before performance is due. And we also note that neither party pleaded an anticipatory breach of contract in their pleadings before the trial court. Moreover, under the common meaning of the phrase "threatened breach" in Hefner's employment agreement, a person must simply engage in some act that communicates or expresses an intent to violate the employment agreement. As a result, the phrase "threatened breach" includes a broader range of conduct than the doctrine of an anticipatory breach of contract. Hefner's subtle acts may establish his intent to violate his employment agreement. But those same subtle acts would fail to show that Hefner clearly and unequivocally intended to no longer perform his contractual obligations under his employment agreement to the degree necessary to establish a valid anticipatory breach of contract action. Finally, this would mean that the evidentiary burden of proof for establishing a valid anticipatory breach of contract action is significantly higher than the evidentiary burden of proof for establishing a valid threatened breach action under Hefner's employment agreement. So, the trial court erred in imposing this obviously higher evidentiary burden of proof on the Corporation, Deutscher, and Rottinghaus, for example, requiring them to prove that Hefner had committed an anticipatory breach of his employment agreement, in defending themselves against Hefner's motion for summary judgment in his breach of contract action.

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Hefner v. Deutschner

Breach of Contract Finding

On appeal, the Corporation, Deutscher, and Rottinghaus argue that the trial court failed to comply with our Supreme Court's rules on deciding summary judgment motions. They argue that the trial court wrongly interpreted Hefner's intention behind obtaining the tradename and searching for an office space in Hefner's favor. They also argue that the trial court made findings on disputed material facts. In its order granting Hefner summary judgment on his breach of contract claim, the trial court began its analysis by noting that "[t]he facts material to [the] claim [were] largely undisputed." The trial court then made the following findings: (1) That Hefner's act of applying and obtaining a tradename and searching for an office space were "exploratory activities"; (2) that Hefner never considered breaching the noncompete clause because Hefner's "exploratory activities" occurred when he was negotiating the exit agreement from the Corporation; and (3) that when Hefner failed to check a box on his tradename application—a box Hefner was required to check and which certified that he intended to practice optometry under the requested tradename—this meant that Hefner never considered breaching the noncompete clause. Based on the preceding findings by the trial court, it is readily apparent that the trial court erred when it granted summary judgment in Hefner's favor on his breach of contract action. To begin with, whether Hefner committed a threatened breach of the noncompete clause of his employment agreement was a question of fact. See Peterson, 302 Kan. at 104 (holding that whether a party breached his or her contract constitutes a fact question). Obvi- ously, an allegation of a "threatened breach" is fact specific. And our research has revealed no bright-line rule as to what necessarily constitutes a "threatened breach." As a result, the trial court could not have properly granted summary judgment in Hefner's favor in his breach of contract action unless all the material facts were undisputed. See Patterson v. Cowley County, 307 Kan. 616, 621, 413 P.3d 432 (2018) (holding that summary judgment is appropriate in cases only where no material facts are disputed). Yet, at the beginning of its analysis, the trial court noted, "[t]he facts material to [Hefner's] claim [were] largely undisputed."

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Hefner v. Deutscher

It necessarily follows that if the material facts were largely undisputed, there must have been some material facts that were not entirely undisputed. Thus, the trial court implicitly conceded that it used flawed reasoning when it granted summary judgment in favor of Hefner—by explicitly acknowledging that there were some material facts still in dispute on an issue involving a question of fact. Also, when ruling on summary judgment motions, a trial court must resolve all facts and inferences in the nonmoving party's favor. Patterson, 307 Kan. at 621. Even so, the trial court clearly resolved the disputed material facts in Hefner's favor. The trial court found that Hefner's "exploratory activities" of obtaining a tradename and searching for an office space constituted innocent actions on Hefner's part because of the parties' ongoing exit agreement negotiations. Nevertheless, Hefner's intention when engaging in these "exploratory activities" was the key material fact in dispute. The Corporation, Deutscher, and Rottinghaus' defense hinged on whether Hefner's "exploratory activities" showed an imminent or likely intent to violate the noncompete clause through those activities. So, when the trial court ruled that Hefner had innocent intentions when engaging in those "exploratory activities," the trial court resolved the central disputed material fact in this case in Hefner's favor. Moreover, in resolving this disputed material fact, the trial court made credibility determinations regarding Hefner's intent in Hefner's favor. Again, the trial court ruled that Hefner's "exploratory activities" constituted innocent behavior given the ongoing exit agreement negotiations. It also determined that Hefner's failure to check a box on his tradename application that he would use the requested tradename showed that Hefner never intended to violate the noncompete clause. But Hefner's actions could also be interpreted against him. Hefner plainly knew that he had not been released from the noncompete clause because he was actively requesting his release from the noncompete clause as part of his exit agreement negotiations. Regardless of whether Hefner checked the box indicating that he would use his requested tradename, K.A.R. 65-9-2 required Hefner to certify that he "intend[ed] to actively engage in

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Hefner v. Deutschner the practice of optometry under the trade or assumed name upon obtaining approval from the board." Notwithstanding the preceding, it is possible that Hefner intended to use the tradename but he simply forgot to check the certification box. Thus, a reasonable fact-finder could believe that Hefner acted in bad faith when obtaining the tradename and searching for office space. Because Hefner's intention behind obtaining a tradename and searching for an office space could be interpreted by a reasonable person in Hefner's favor or against Hefner's favor, the trial court erred when it granted Hefner's summary judgment motion. Indeed, it is because a person's intent is so difficult to gauge that our Su- preme Court has warned against granting summary judgment in these cases: "A court should be cautious in granting a motion for summary judgment when resolution of the dispositive issue requires it to determine the state of mind of one or both of the parties." Hill v. State, 310 Kan. 490, 520, 448 P.3d 457 (2019). And in this case, it is readily apparent that the parties' dispute over Hef- ner's intent involves whether he acted in good or bad faith. Previ- ously, our Supreme Court has held that "the fact question of the existence of good or bad faith is peculiarly inappropriate for summary judgment." Waste Connections, 296 Kan. at 974. Lastly, the trial court's summary judgment ruling hinged on an error of fact. In ruling against the Corporation, Deutscher, and Rottinghaus, the trial court found that "[n]either [party] assert[ed] that Hefner operated or could have operated an optometry office out of his home." Nevertheless, at the summary judgment motions hearing, the Corporation, Deutscher, and Rottinghaus made this exact allegation. They explained that optometrists may practice from their homes, noting that Hefner's home was large enough to accommodate an optometry practice. So, the trial court erred in this respect concerning this factual finding. Because material facts remained in dispute on Hefner's breach of contract claim, only a fact-finder at a bench or jury trial can resolve this issue. As a result, we reverse the trial court's summary judgment order and remand to the trial court to hold a new trial. During this trial, the fact-finder must use the commonly understood meaning of the phrase "threatened breach" to decide whether the Corporation legitimately terminated Hefner for cause because he committed a threatened breach of the noncompete

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Hefner v. Deutscher clause of his employment agreement. If the fact-finder decides the Corporation legitimately terminated Hefner for cause, then Hef- ner's breach of contract claim fails.

The Corporation, Deutscher, and Rottinghaus' Remaining Argu- ments

Next, because the trial court erred by granting summary judgment in Hefner's favor on his breach of contract claim, we must reverse the trial court's breach of fiduciary duty finding and damages award.

Reversed and remanded for a new trial.

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Hanson v. KCC

___

No. 119,834

RICHARD L. HANSON, CIRCLE H FARMS LLC, ROME FARMS LLC, STEGMAN FARMS PARTNERSHIP, Appellees, v. KANSAS CORPORATION COMMISSION, Respondent, and TEXAS-KANSAS- OKLAHOMA GAS, LLC, Appellant.

___

SYLLABUS BY THE COURT

1. ADMINISTRATIVE LAW—Kansas Judicial Review Act—Appellate Re- view. In an appeal from an administrative decision under the Kansas Judicial Review Act, appellate courts exercise the same statutorily limited review of the agency action as the trial court—as though the appeal had been made directly to the appellate court. The burden of proving the agency's decision was erroneous lies with the party asserting the error.

2. KANSAS CORPORATION COMMISSION—Statutory Authority to KCC to Supervise Natural Gas Public Utilities. Kansas law gives the Kansas Cor- poration Commission full power, authority, and jurisdiction to supervise and control natural gas public utilities in this state, empowering the Com- mission to do all things necessary to carry out this responsibility.

3. ADMINISTRATIVE LAW—Kansas Judicial Review Act—Authority of KCC—Appellate Review. Although the Kansas Corporation Commission is charged with interpreting and applying the statutes governing its authority, Kansas courts give no deference to agencies' interpretation of statutory language. Instead, statutory interpretation is a quintessentially legal question over which appellate courts' review is unlimited. A claim under K.S.A. 77- 621(c)(4) that an agency erroneously interpreted and applied the law is reviewed de novo.

4. STATUTES—Interpretation—Legislative Intent. The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of a statute. Courts therefore do not add or ignore statutory text, and courts give ordinary words their ordinary meanings.

5. KANSAS CORPORATION COMMISSION—Broad Authority under Stat- utes. K.S.A. 66-1,205(a) defines the circumstances under which the Kansas Corporation Commission may review a complaint involving a natural gas public utility's rates, rules, regulations, practices, or acts. The text of K.S.A. 66-1,205(a) does not limit the Commission's regulatory authority to a rate- reviewing function. Instead, it provides the Commission broad authority to determine whether any rule and regulation, practice, or act whatsoever is in any respect unreasonable, unfair, or unjust.

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Hanson v. KCC

6. SAME—Statutory Charge to Review Rates and Oversee Utilities' Prac- tices—Liberal Construction. Kansas statutes direct the Kansas Corporation Commission not merely to review the rates charged by natural gas public utilities in this state, but also to oversee the utilities' practices to ensure they are not in any respect unreasonable, unjust, or unfair. If the Commission finds any practice deficient, it may correct the utility's error as it determines to be just, reasonable, and necessary. This authority should be liberally construed so the Commission can carry out its statutory charge.

7. SAME—Statutory Authority to Investigate Remedies for Best Interest of Public. K.S.A. 66-1,206 vests the Kansas Corporation Commission with authority to craft a remedy when a natural gas public utility's rates or practices are found to be unreasonable, unjust, or unfair. This allows the Com- mission to investigate potential courses of action—whether some form of refund, rate adjustment, penalty, or other remedy—and determine which is in the best interest of the complainants and the public.

Appeal from Stevens District Court; BRADLEY E. AMBROSIER, judge. Opin- ion filed April 10, 2020. Affirmed in part, reversed in part, and remanded to the Kansas Corporation Commission with directions.

Jeremy L. Graber, C. Edward Watson II, and Daniel J. Buller, of Foulston Siefkin LLP, of Topeka, for appellant Texas-Kansas-Oklahoma Gas, LLC.

Lee Thompson, of Thompson Law Firm, LLC, of Wichita, for appellees.

Before WARNER, P.J., POWELL, J., and LAHEY, S.J.

WARNER, J.: Kansas statutes direct the Kansas Corporation Com- mission to regulate and oversee natural gas public utilities in this state. This oversight includes setting and approving the rates utilities charge their customers. But Kansas law also directs the Commission to investigate other practices or acts by regulated utilities that are unfair, unjust, or unreasonable—regardless of the rate charged. And the law vests the Commission with discretion to craft appropriate remedies when faced with a utility's unfair practices. Here, various customers filed a complaint with the Commission, alleging their natural gas company had been consistently miscalculat- ing the amount of gas it was providing them and then overbilling them by 9.5%. The Commission recognized the company had engaged in this practice but nevertheless declined to take meaningful remedial action because the rates the company charged were reasonable. The district court reversed, finding the company's billing error was unfair, unjust, and unreasonable.

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Hanson v. KCC

We find the Commission's order conflated its rate-making duties with its other regulatory responsibilities. Because the Com- mission failed to take action when a company had consistently and continuously overcharged its customers for the natural gas they received, we affirm the district court's reversal of the Commis- sion's order regarding the company's unfair practices. But Kansas law vests the agency—not the district court—with the responsibility to investigate and craft a remedy that balances the interests of the customers and the public generally. Accordingly, we reverse the district court's dispositional order and remand the case to the Commission to determine the appropriate remedy.

FACTUAL AND PROCEDURAL BACKGROUND

Texas-Kansas-Oklahoma Gas, LLC (TKO) is a Texas-based limited liability company that has operated a natural gas system in Texas for over 20 years. More recently, TKO has maintained a limited service for customers in Oklahoma and Kansas. In Kansas, TKO operates as a middleman, buying gas from other natural gas suppliers and reselling that gas to its customers. TKO does not operate a natural gas gathering system in this state. TKO began selling natural gas in Kansas in August 2007, when it purchased the right to sell gas to 182 residential and nonresidential customers from Anadarko Gas Gathering Company. After buying the contract rights to Anadarko's customers, TKO filed an application with the Commission for certification as a Kansas natural gas public utility. TKO began providing gas to its Kansas customers while its application was pending, operating without a certificate from August 2007 until April 2010. TKO's application requested a customer-specific certificate, which would permit it to sell gas on a customer-by-customer basis to Anadarko's previous customers and negotiate new contracts with nonresidential natural gas customers. TKO's rates for its limited residential customers were frozen and could not be changed without Commission approval. Because TKO merely sought authority to assume Anadarko's existing contracts, its certification process did not require a formal public rate-setting process or ne- cessitate a formal tariff like other Kansas public utilities. In 2010, the Commission granted TKO's application, permitting TKO to become a public utility but limiting its service to "a

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Hanson v. KCC defined list of customers under individual gas purchase contracts." To date, TKO remains unique among natural gas public utilities in Kansas since its business consists solely of customer-specific certificates. To receive its permanent certification—granted in March 2012—TKO was required to meet several additional conditions. One required TKO to file all customer contracts with the Commission so it could evaluate the contracts' price consistency and terms. Another required TKO to file any new or renegotiated contracts and an annual report of its operations with the Commis- sion. In December 2014, one of TKO's residential customers (Rich- ard Hanson) and several of TKO's nonresidential customers (col- lectively discussed here as "the Irrigators") filed a complaint with the Commission under K.S.A. 66-1,205. The complaint alleged TKO had engaged in an unfair, unjust, and discriminatory billing practice since 2007. Hanson's claim against TKO was successful and is not at issue in this appeal; TKO admitted to charging him a rate well above what the Commission approved. The Irrigators' complaint alleged that TKO had improperly calculated the heat content of the gas it sold to its customers and thus consistently overcharged by 9.5%. The complaint alleged that TKO had measured the volume of the gas sold to its customers at a different pressure than the pressure used to calculate its heat content; this practice misrepresented the amount of gas sold. The Ir- rigators claimed this practice caused them to be overbilled $100,982.32 from 2007 to 2015 or, alternatively, $72,411.63 from 2010 to 2015.

TKO's Billing Practices—Calculating the Heat Content of Natural Gas

Before further discussing the procedural history in this case, we must examine how natural gas is measured and billed. Natural gas is a mixture of different naturally occurring alkanes such as methane, ethane, and propane, and sometimes a small percentage of carbon dioxide, nitrogen, hydrogen sulfide, or helium. To- gether, these components constitute the gas stream. The heat energy of natural gas is based, in part, on its chemical composition,

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Hanson v. KCC determined using a gas chromatograph to estimate the molar composition of each component in the gas stream. Once the molar composition is known, the heat content of a given volume of gas can be calculated using the respective ideal gas values for each component. The heat content—or energy—of natural gas is measured in MMBTU (million British Thermal Units). And many natural gas companies, including TKO, sell gas to customers at a given price per MMBTU ($/MMBTU). According to Leo Haynos, the Commission's Chief Engineer who authored two staff reports in this case, there is no way to consistently measure the heat content of the natural gas a company sells. The actual heat content of the gas in a pipeline is infre- quently measured—perhaps only once per year. Instead, Haynos explained chemical engineers "measure volume, and we convert it to energy. . . . [T]he only thing they really are measuring on site is the volume. And then they relate that back through a calculation to the amount of energy that was sold." Put more simply, because MMBTU is a measure of heat, not volume, it cannot be measured with a displacement meter. Instead, the gas company uses a formula to calculate the MMBTU sold from the volume of gas (measured in Mcf, or thousand cubic feet) provided to a customer in a billing cycle. To convert the volume of gas sold in Mcf into MMBTU (its heat content), the gas company uses a formula incorporating the gas' temperature, pressure, and chemical composition. In particular, as a report by Commission staff observed, "the reference temperature and pressure of the BTU calculation are critical to creating a fungible unit of measurement." The sticking point in this case is the reference pressure—or the pressure base—used by TKO in that calculation. The pressure base (measured in pounds per square inch absolute or psia) is essentially the average pressure the natural gas is under when its heating value and volume are measured. The volume of a gas is inversely proportional to its pressure. Thus, when other factors such as temperature and the number of molecules of a gas remain constant, higher pressure compresses the gas, while lower pressure allows the gas molecules to expand into a greater volume. Hanson, the sole residential customer com-

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Hanson v. KCC plainant and a consulting engineer called by the Irrigators, explained the importance of using the same pressure base when calculating volume and heat content:

"A Mcf is a measure of volume, and an MMBTU is a measure of heating value. Because natural gas is sold by its heating value, sales must be converted to reflect the volume based on the heating value—i.e. BTU content. Thus it is also necessary to measure both the Mcf and the BTU content at a given pressure. The pressure used to measure both volume (Mcf) and heating value (BTU) is known as a pressure base. Because both BTU/cu ft. and volume (Mcf) vary with pressure, the same pressure (commonly referred to as the pressure base) must be used to calculate both the BTU/cu ft. value and the Mcf Volume. If pressure of a fixed quantity of gas increases, the volume decreases, and vice versa, but the total MMBTU of that fixed quantity of gas remains the same." (Emphasis added.)

A staff report compiled by Haynos explained that if the pressure base used for measuring heat content is lower than the pressure base used for measuring the volume, then the heat content per cubic foot of gas would be lower (because fewer molecules would be contained per cubic foot) and vice versa. Both Hanson and Haynos testified the specific pressure base a gas company uses does not matter so long as it remains constant for calculating both the volume and heat content of the gas sold. TKO purchases natural gas from Anadarko and its other suppliers using an industry-standard pressure base of 14.65 or 14.73 psia. This means that when TKO pays Anadarko a certain $/MMBTU, the total MMBTU purchased is calculated from the volume of gas sold to TKO using a pressure base of 14.65 or 14.73 psia. TKO's contracts with its customers, and its customers' account summaries and invoices, are priced per MMBTU sold. These contracts did not specify a pressure base. When TKO assumed the contracts from Anadarko's customers in 2007, it determined for economic reasons—presumably, to make it feasible to provide natural gas at the locked-in contract rate—to deliver gas to those customers using a pressure of 13.45 psia. It has continued to use a 13.45-psia pressure when measuring the volume of gas sent to its customers for the entire time it has done business in Kansas.

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Hanson v. KCC

In their second report to the agency, Commission staff described TKO's practice of using a different pressure when deliver- ing gas to its customers than that used to calculate the gas' heat content:

"After purchasing the gas, TKO unilaterally defined the volume of gas to be sold as a cubic foot at 60°F and 13.45 psia. . . . By reducing the reference pressure of the cubic foot held for sale, TKO reduced the amount of gas and the thermal content that could be contained in the cubic foot held for sale. TKO then applied the unadjusted heat content value it had received from Anadarko when the gas was purchased."

Staff concluded that TKO's "manipulation of the gas volume sold without performing a corresponding modification of the BTU [heat] content for that volume overstates the BTU value of the gas sold by approximately 9.5%." Because TKO sells gas to customers at a certain price per MMBTU, "overstating the amount of BTUs purchased results in overcharging the customer by 9.5%."

Proceedings before the Commission

In its response to the Irrigators' complaint, TKO did not address the Irrigators' contention that it used a different pressure to measure the volume of gas provided to its customers than Ana- darko used in calculating the heat content of that gas. Instead, TKO claimed it was standard industry practice for a natural gas seller to establish the pressure base for its gas sales contracts and billing calculations. TKO also noted the terms of the contracts were agreed to by the Irrigators and approved by the Commission. Commission staff began an investigation and compiled an initial report, finding TKO had overstated the BTU value of the gas it was selling and thereby overcharged its customers. The first staff report recommended that the Commission assess a $7,100 civil penalty for a variety of compliance issues; require TKO to file a rate case to set appropriate rates, gas tariffs, and service requirements; require TKO to amend all of its contracts to account for the appropriate pressure base; and order TKO to refund its customers 9.5% for the cost of the overcharge going back to 2012. To prepare for the agency's evidentiary hearing, Commission staff compiled a second report based on its continued investigations and the evidence produced by the parties during discovery.

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Although the second staff report contained the same four recom- mendations as the first, it included three additional observations:

 First, contrary to the Irrigators' assertion that TKO had inten- tionally manipulated the pressure base to increase its revenue, staff categorized TKO's miscalculation as a "billing error"— noting "the BTU value stated on the customer's bill and used in calculating the customer's monthly charging is incorrect."  Second, the report noted that TKO's gas prices were low enough compared with others in the industry that, even with TKO's overstatement of the BTU value of gas it was selling, its rates ($/MMBTU) were still potentially reasonable. To this end, the report compiled data on the rates charged by TKO's competitors and suppliers and found TKO's rates, despite the billing error, were among the cheapest in the region.  Third, the report noted that TKO's financial condition was potentially too precarious for a refund to be in the public interest. The report cautioned that if a refund were ordered, it should "be structured in such a manner that [its] financial viability . . . is not jeopardized." This recommendation was based on staff's concern over TKO's significant financial losses in recent years and the possibility that TKO could go bankrupt if ordered to refund the Irrigators.

Even so, the second report maintained that it would be equitable for the Commission to require TKO to provide refunds to its customers for the overbilled amounts—so long as payments could be structured in a manner to protect TKO's financial viability. After a two-day evidentiary hearing, the Commission denied the Irrigators their requested relief. At the hearing, TKO admitted the staff report was correct regarding the billing error, conceding it had provided gas to its customers at a different pressure than what was used to calculate heat content, thereby inflating its customers' bills by 9.5%. But instead of scrutinizing TKO's billing practices, the Commission focused on the rates TKO ultimately charged its customers, finding the ultimate cost of the natural gas to be reasonable—no harm, no foul.

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In reaching its decision, the Commission focused on TKO's private-rate contracts and their presumption of validity. The Com- mission found that the Irrigators were required to overcome that presumption but failed to do so. In particular, the Commission concluded TKO's error in its billing practice did not render its rates per se unreasonable or unjust—at least not standing alone. While the Commission agreed public utilities cannot manipulate their billing parameters to increase revenues and must comply with the Commission's rules and approved rates, TKO's contracts did not require the company to use a certain pressure base for its calculations. And the Commission noted there was no evidence TKO had changed its billing practices since the Commission originally approved its contracts with the Irrigators. Finally, the Com- mission found the fact that TKO's rates remained cheaper than most gas companies in southwest Kansas—despite the 9.5% overbilling—undermined the Irrigators' claims.

Reversal by the District Court

After the Commission denied their motion for reconsideration, the Irrigators petitioned for district court review under the Kansas Judicial Review Act (KJRA). The Irrigators presented their KJRA petition on two fronts, arguing the Commission's order failed to resolve issues requiring resolution under K.S.A. 77- 621(c)(3) and erroneously interpreted and applied the law under K.S.A. 77-621(c)(4). Although framed differently, both arguments centered on the same allegation—the Commission erroneously focused on the reasonableness of the rates set by their private contracts with TKO instead of TKO's practice of overbilling customers. The district court reversed the Commission's final order, ruling it was "factually, logically and legally erroneous, not supported by the record or the evidence and arbitrary and capricious." The court concluded that the Commission's rationale focused ex- clusively on "rate making principles based on contract terms" and ignored "the uncontroverted evidence that TKO's billing practices unfairly inflated billings of MMBTU's by 9.5% from the first date it began operating in Kansas." The district court ordered the Com-

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Hanson v. KCC mission to calculate the exact amount TKO had overbilled its customers since 2007 and directed the agency to order TKO to refund those amounts. TKO appeals, asking this court to reinstate the Commission's order.

DISCUSSION

1. The Commission incorrectly applied K.S.A. 66-1,205 and K.S.A. 66-1,206 when it focused on the rate charged by TKO instead of TKO's unfair billing practices.

In an appeal from an administrative decision under the KJRA, we "exercise the same statutorily limited review of the agency action as" the district court, deciding the case "as though the appeal had been made directly to the appellate court." Romkes v. Univer- sity of Kansas, 49 Kan. App. 2d 871, 880, 317 P.3d 124 (2014); see also Bd. of Cherokee County Comm'rs v. Kansas Racing & Gaming Comm'n, 306 Kan. 298, 318, 393 P.3d 601 (2017) (finding the scope of review is the same whether a KJRA action is before a district court or the Kansas Supreme Court). This means that even though TKO has appealed the district court's reversal to this court, the burden of proving the Commission's decision was erroneous lies with the Irrigators. K.S.A. 77-621(a)(1). As a starting point, there is no question TKO is a "natural gas public utility" under K.S.A. 66-1,200 et seq. Kansas law therefore gives the Commission "full power, authority and jurisdiction to supervise and control" TKO and "empower[s]" the Commission "to do all things necessary" to carry out this responsibility. See K.S.A. 66-1,201. This case turns on the Commission's exercise of this charge—most notably, its interpretation of K.S.A. 66-1,205 and K.S.A. 66-1,206 and its application of these statutes to the Irrigators' complaint. Although the Commission is charged with interpreting and applying the statutes governing its authority, Kansas courts give no deference to agencies' interpretation of statutory language. See Douglas v. Ad Astra Information Systems, 296 Kan. 552, 559, 293 P.3d 723 (2013) (no deference given to agencies' interpretation of statutes). Instead, statutory interpretation is a quintessentially legal question over which appellate courts' review is unlimited. In

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Hanson v. KCC re Tax Appeals of Genesis Health Clubs, 42 Kan. App. 2d 239, 242, 210 P.3d 663 (2009), rev. denied 290 Kan. 1094 (2010). A claim under K.S.A. 77-621(c)(4) that an agency erroneously interpreted and applied the law is likewise reviewed de novo. Midwest Crane & Rigging, LLC v. Kansas Corporation Comm'n, 306 Kan. 845, 848, 397 P.3d 1205 (2017). The primary aim of statutory interpretation is to give effect to the legislature's intent, expressed through the plain language of a statute. State v. Spencer Gifts, 304 Kan. 755, Syl. ¶ 2, 374 P.3d 680 (2016). We therefore do not add or ignore statutory text, and we give ordinary words their ordinary meanings. See 304 Kan. 755, Syl. ¶ 3; Director of Taxation v. Kansas Krude Oil Reclaim- ing Co., 236 Kan. 450, 455, 691 P.2d 1303 (1984). K.S.A. 66-1,205(a) defines the circumstances under which the Commission may review a complaint—such as that brought by the Irrigators here—involving a natural gas public utility's rates, rules, regulations, practices, or acts:

"Upon a complaint in writing made against any natural gas public utility governed by this act that any rates or rules and regulations of such natural gas public utility are in any respect unreasonable, unfair, unjust, unjustly discriminatory or unduly preferential, or both, or that any rule and regulation, practice or act whatsoever affecting or relating to any service performed or to be performed by such natural gas public utility for the public, is in any respect unreasonable, unfair, unjust, unreasonably inefficient or insufficient, unjustly discriminatory or unduly preferential, or that any service performed or to be performed by such natural gas public utility for the public is unreasonably inadequate, inefficient, unduly insufficient or cannot be obtained, the commission may proceed, with or without notice, to make such investigation as it deems necessary." (Emphases added.)

To date, Kansas cases interpreting this statute have focused primarily on the Commission's rate-making authority—that is, whether a natural gas utility's rates "are in any respect unreasonable, unfair, [or] unjust" under K.S.A. 66-1,205(a). See Kansas Gas & Electric Co. v. Kansas Corporation Comm'n, 239 Kan. 483, 490, 720 P.2d 1063 (1986); Western Resources, Inc. v. Kansas Corporation Comm'n, 30 Kan. App. 2d 348, 357, 42 P.3d 162 (2002). Because natural gas rates are a product of notice-and-comment rulemaking—with time for extensive agency investigation and public feedback—or private contracts, Kansas courts give significant deference to the rates set or approved by the Commission.

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See Kansas Gas & Electric Co., 239 Kan. at 498-516 (analyzing the reasonableness of the "overall result" of the Commission's public rate-making decision); Kansas Power & Light Co. v. Mobil Oil Co., 198 Kan. 556, 561, 426 P.2d 60 (1967) (upholding private rate contracts unless the rates set are inherently unreasonable). Under these auspices, the Commission declined to take action against TKO—even though TKO admitted its billing error led to overcharging its customers—because the ultimate rates were reasonable. But the text of K.S.A. 66-1,205(a) does not limit the Commis- sion's regulatory authority to a rate-reviewing function. Instead, it provides the Commission broad authority to determine whether "any rule and regulation, practice or act whatsoever . . . is in any respect unreasonable, unfair, [or] unjust." K.S.A. 66-1,205(a). K.S.A. 66-1,206(a), which authorizes the Commission's authority upon concluding its investigation, similarly empowers the agency in cases involving not only rates but also other regulations, practices, and acts:

"If after investigation and hearing the rates or rules and regulations of any natural gas public utility governed by this act are found unjust, unreasonable, unfair, unjustly discriminatory or unduly preferential, or in any way in violation of the provisions of this act, or of any of the laws of the state of Kansas, the commission shall have the power to establish, and to order substituted therefor, such rates or rules and regulations as the commission determines to be just, reasonable and necessary. If it is found that any regulation, practice or act, relating to any service performed or to be performed by such natural gas public utility for the public is in any respect unreasonable, unjust, unfair, unreasonably inefficient or insufficient, unjustly discriminatory or unduly preferential, or otherwise in violation of any of the provisions of this act or of any of the laws of the state of Kansas, the commission may substitute therefor such other regulations, practice, service or act as it determines to be just, reasonable and necessary." (Emphases added.)

Kansas statutes therefore direct the Commission not merely to review the rates charged by natural gas public utilities in this state, but also to oversee the utilities' practices to ensure they are not "in any respect unreasonable, unjust, [or] unfair." K.S.A. 66-1,206(a). If the agency finds any practice deficient, it may correct the utility's error "as it determines to be just, reasonable[,] and necessary." K.S.A. 66-1,206(a). This authority is "liberally construed" so the Commission can carry out its charge. K.S.A. 66-1,207.

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Here, the Commission recognized that the "crux" of the Irri- gators' argument was that "TKO employed an invalid methodology for calculating the BTU of the natural gas it sold to Complain- ants and therefore overcharged them by 9.5%." But instead of considering whether this practice was unreasonable or unfair under K.S.A. 66-1,206(a), the Commission sought to determine whether this "practice results in unjust or unreasonable rates." The Com- mission answered this question in the negative, finding TKO's billing methodology did not render its rates unreasonable. There are multiple problems with this approach. First, the rates included in TKO's contracts—that is, the $/MMBTU—were not the focus of the Irrigators' argument. Instead, the complaint alleged that because TKO measured MMBTU and meted out volume at different reference pressures, the company was consistently providing roughly 10% fewer MMBTU than the Irrigators believed they were paying for, regardless of the rate charged. The question posed to the Commission was whether this billing practice—which TKO admitted to have employed—was "in any respect unreasonable, unjust, [or] unfair." K.S.A. 66-1,206(a). Likewise, the Commission's construction of the Irrigators' complaint as a challenge to TKO's rates is not supported by the record. Our review of the Irrigators' complaint reveals that although the complaint occasionally referenced TKO's unfair "rates," it used this term broadly and synonymously with TKO's billing "charges." For example, in their prayer for relief, the Irri- gators asked the Commission to "investigate and compute the amount of charges or rates which have been overbilled and with respect to past sales made under such unfair and discriminatory terms or rates." (Emphases added.) These references to "rates" do not imply the contractual rate of $/MMBTU was unfair, but that TKO's invoices overstated the amount of gas provided to its customers. And to the extent the Commission considered the merits of the Irrigators' allegations relating to TKO's billing methods, its analysis focused not on whether TKO's practice was unreasonable, but on whether TKO was legally obligated to use a specific pressure base for calculating volume and heat content. The agency's discussion thus failed to grasp the nature of the misconduct alleged—

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Hanson v. KCC that by using different pressures to calculate volume and heat content, regardless of what those pressures were, TKO misrepresented the amount of gas the Irrigators were receiving and consistently overcharged them by almost 10%. Although the parties dispute TKO's motivation for using the different pressures in its calculations, no one contests that the company engaged in this erroneous practice. The Commission's authority to take action under Kansas law does not turn on whether the billing error arose from a particular intent, but whether the "practice or act . . . is in any respect unreasonable, unjust, [or] unfair." K.S.A. 66-1,206(a). A panel of this court recently examined these terms— unreasonable, unjust, and unfair—and noted their expansive grant of authority to the Commission:

"As such words are left undefined by the Legislature, we look to their common and ordinary meaning. 'Unfair' has been defined as '[n]ot honest, impartial or candid; unjust.' Black's Law Dictionary 1760 (10th ed. 2014). 'Unjust' has been defined as '[c]ontrary to justice; not fair or reasonable.' Black's Law Dictionary 1771 (10th ed. 2014). Likewise, 'unreasonable' is defined as '[n]ot guided by reason; irrational or capricious.' Black's Law Dictionary 1772 (10th ed. 2014)." SWKI-Seward West Central, Inc. v. Kansas Corporation Comm'n, No. 116,795, 2018 WL 385692, at *8 (Kan. App. 2018) (unpublished opinion).

Regardless of the rates included in TKO's contracts, the company's billing practice meets these definitions. TKO's calculations caused the company to inform its customers they were using—and to charge them for—9.5% more MMBTUs of gas than they actually received. This practice was neither honest nor fair. In ignoring its statutory charge in K.S.A. 66-1,205 and K.S.A. 66-1,206—focusing on the rates in TKO's customer contracts to the exclusion of TKO's other regulations, practices, and acts—the Commission committed an error of law. And the agency similarly erred in concluding TKO's contractual rates somehow shielded the company from liability for an unreasonable and unfair billing practice. We agree with the district court that the Commission's order erroneously applied the law and, in so doing, failed to decide the central issue in the Irrigators' complaint. See K.S.A. 77- 621(c)(3), (4). The district court correctly reversed the agency's order on the merits of the Irrigators' claim.

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2. We remand the case to the Commission to balance the various available remedies with the public interest, and thereby determine the best course of action going forward.

K.S.A. 66-1,206(a) vests the Commission with authority to craft a remedy when a natural gas public utility's rates or practices are found to be "unreasonable, unjust, [or] unfair." Because the Commission found TKO's rates and practices were not unreasonable, it never reached the question of what remedy would be appropriate. The district court—having identified TKO's billing error and concluded it was unfair and unreasonable—"remanded [the case] to the Commission to calculate and order that TKO make refunds to its irrigation customers based on the 9.5% overbilling from the date TKO first began operations in Kansas in 2007 to the present." TKO argues that the district court's refund order exceeded the court's authority in two respects. First, TKO asserts Kansas law vests the Commission—not the district court—with discretion to order an appropriate remedy, and the appropriate course was therefore to remand the case to the agency. Second, TKO argues that in ordering a refund of all overcharges since 2007, the district court ignored the Commission's jurisdictional finding that it only could regulate TKO's conduct from when it was provisionally certified in 2010. The company asserts that the Irrigators failed to seek the Commission's reconsideration of this jurisdictional finding, a step required before it can seek judicial review under the KJRA. See K.S.A. 66-118b ("No cause of action arising out of any order or decision of the commission shall accrue in any court to any party unless such party shall petition for reconsideration in accordance with the provisions of K.S.A. 77-529."); K.S.A. 77- 612 (KJRA's exhaustion-of-administrative-remedies requirement). We agree with TKO's first point: K.S.A. 66-1,206 charges the Commission with the task of crafting an appropriate remedy when faced with an unfair practice. This allows the agency to investigate the ramifications of various courses of action—whether some form of refund, rate adjustment, penalty, or other remedy—and determine which is in the best interest of the complainants and the public. This balancing is particularly important here, when the

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Commission and its staff expressed concerns about TKO's financial solvency if an immediate refund were ordered. Indeed, the second staff report observed that "a refund that results in bankruptcy of a public utility is clearly not in the public interest," and any potential refund must be structured in a way to protect the public from this possibility. We understand the district court's frustration with the Com- mission's order in this case. And a district court generally enters judgment for a party's full liability, as the district court did here. But this case originated before the Commission, not the courts. By ordering the refund without first allowing the agency the opportunity to craft a workable remedy, the district court overstepped its authority. See K.S.A. 66-1,206(a); see also K.S.A. 77-621(c) (limiting courts' review of agency actions); Genstar Chemical Ltd. v. I.C.C., 665 F.2d 1304, 1309 n.3 (D.C. Cir. 1981) (recognizing Commission has broad authority "to fashion an appropriate remedy"). We therefore reverse the district court's refund order and remand the case to the Commission to determine the appropriate remedy for TKO's unfair billing practices. Because we are reversing the court's refund order, we need not decide whether the timeframe of the previously ordered refunds—from 2007, not 2010—was also erroneous. Accord State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016) ("Kansas courts do not issue advisory opinions."). The decision of the district court reversing the Commission's final order is affirmed in part and reversed in part. The Commis- sion's order is reversed. And the case is remanded to the agency with directions to consider the appropriate steps to remedy TKO's consistent overcharging of its customers.

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In re Tax Appeal of River Rock Energy Co.

___

No. 120,387

In the Matter of the Appeal of RIVER ROCK ENERGY COMPANY for the Year 2016 in Labette, Neosho, and Wilson Counties.

___

SYLLABUS BY THE COURT

1. ADMINISTRATIVE LAW—Kansas Judicial Review Act—Review of BOTA Rulings. The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., governs appellate review of rulings by the Kansas Board of Tax Appeals.

2. SAME—Interpretation of Administrative Regulations—Appellate Review. Any issues before this court requiring interpretation of administrative regulations raise questions of law subject to unlimited review. Appellate courts no longer extend deference to an agency's interpretation of statutes or regulations.

3. STATUTES—Construction of Tax Statutes—Taxpayer's Favor. As a general rule, when construing tax statutes, provisions which impose a tax are to be construed strictly in favor of the taxpayer.

4. PERSONAL PROPERTY—Appraisal of Personal Property—Fair Market Value. K.S.A. 79-501 requires personal property to be appraised at its fair market value in money.

5. STATUTES—Statutory Definition of Fair Market Value. K.S.A. 79-503a defines fair market value as the amount in terms of money that a well-informed buyer is justified in paying and a well-informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion.

6. OIL AND GAS—Fair Market Value of Oil and Gas Wells and Leases. Stat- utorily, oil and gas wells and leases are appraised in accordance with K.S.A. 79-331(a) and K.S.A. 79-503a in order to reach the actual fair market value in the marketplace as opposed to a fictional, unrealistic, or arbitrary determination.

7. SAME—Determination of Fair Market Value. Substituting the minimum lease value for the working interest subtotal restricts full consideration of two factors under K.S.A. 79-331(a)—the cost of operation and the character of the market.

8. SAME—Determination of Fair Market Value of Oil and Gas Wells and Leases. The requirement to use the greater of the minimum lease value or the working interest subtotal (actual gross working interest value) strips the appraiser of the ability to reconcile the two values to determine a reasonable fair market value of the property.

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In re Tax Appeal of River Rock Energy Co.

9. APPEAL AND ERROR—Abatement of Filing Fees. Filing fees that exceed the reasonable costs of administering an appeal amount to an unconstitutional tax and revenue-generating measure.

Appeal from the Kansas Board of Tax Appeals. Opinion filed April 10, 2020. Affirmed in part, reversed in part, and remanded with directions.

Keith A. Brock, of Anderson & Byrd, LLP, of Ottawa, for appellant River Rock Energy Company.

Jay D. Befort, deputy general counsel, and Shelley M. Woodard, attorney, of Legal Services Bureau, Kansas Department of Revenue, for appellee Kansas Department of Revenue.

Trevor C. Wohlford, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Topeka, for appellees Labette, Neosho, and Wilson Counties.

Before MALONE, P.J., ATCHESON and SCHROEDER, JJ.

SCHROEDER, J.: River Rock Energy Co. (River Rock) timely appeals asking for judicial review of the Kansas Board of Tax Ap- peals' (BOTA) final order using minimum lease values to value its gas wells and related equipment in Labette, Neosho, and Wilson Counties (the Counties) for tax year 2016. On appeal, River Rock argues: (1) BOTA erred in upholding the Counties' valuation of certain wells based on the minimum lease values set forth in the Kansas Oil and Gas Appraisal Guide (the Guide) promulgated by the Kansas Department of Revenue's Property Valuation Division (PVD); (2) BOTA's decision led to an arbitrary and erroneous valuation of its wells; (3) BOTA's characterization of the effect of the minimum lease value is contrary to the evidence in the record; (4) BOTA's valuation of the equipment used in the wells was legally and factually erroneous; and (5) BOTA erred in refusing to grant an abatement of the filing fee and declining to docket and decide the appeals of 1,945 of River Rock's 2,150 wells. For the reasons stated below, we affirm in part, reverse in part, and remand to BOTA for further proceedings consistent with this opinion.

FACTS

In June 2016, River Rock acquired a series of producing gas wells, leases, and related assets and equipment in Kansas and Ok- lahoma through a bankruptcy sale. River Rock's purchase allo-

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In re Tax Appeal of River Rock Energy Co. cated $1,716,847 to the 2,150 well properties in the Counties. Af- ter taking possession, River Rock learned the Counties assigned a total appraised value of $13,522,670 to its wells, most of which had been assigned a minimum lease value in accordance with the Guide promulgated by PVD. River Rock failed in its attempts to appeal the valuations with the Counties and timely filed payment under protest applications with BOTA for all 2,150 wells. But River Rock only paid the applicable filing fees for 205 of its wells despite BOTA's requirement it pay the full filing fee for each well appealed—in total, $30,900 for the 205 wells. And two of those appeals were settled while the matter was pending before BOTA. There are still 1,945 wells in limbo. River Rock timely filed a motion requesting consolidation of the appeals and abatement of the filing fees it had paid for the 205 wells. Its motion further requested BOTA docket the appeals for its remaining wells, consolidate those appeals, and grant an abatement of the filing fees for all wells appealed after the first one. BOTA later issued an order granting the motion for consolidation of the appeals and denying River Rock's request for partial abatement of the filing fees, but its order was silent on River Rock's request to docket the additional appeals. PVD petitioned for limited intervention—specifically, to defend against River Rock's challenges to the lawfulness of the valuation methods set forth in the Guide. BOTA granted PVD's petition. The consolidated appeal was submitted to BOTA without hearing based on prefiled written testimony, stipulated exhibits, and various briefs and written filings from River Rock, PVD, and the Counties. BOTA's final order stated the subject property consisted of 203 gas wells, and the disputed issues presented were: (1) whether the Counties' application of the Guide's minimum lease values caused an erroneous valuation of the wells contrary to Kansas law; and (2) whether the evidence presented warranted a departure from the Guide's valuation tables for certain equipment in or on the subject wells. BOTA upheld the Counties' valuations, finding the use of the Guide's minimum lease values was legally and factually appropriate, and River Rock failed to show the evidence warranted a departure from the Guide's prescribed valuation method for each

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In re Tax Appeal of River Rock Energy Co. well and the valuation method for the equipment values on each well. Additional facts are set forth as necessary below.

ANALYSIS

The Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq., defines the scope of judicial review of state agency actions unless the agency is specifically exempted from applying the statute. K.S.A. 77-603(a); Bd. of Cherokee County Comm'rs v. Kan- sas Racing & Gaming Comm'n, 306 Kan. 298, 318, 393 P.3d 601 (2017). The KJRA governs appellate review of BOTA rulings. K.S.A. 74-2426(c); see K.S.A. 77-603(a). On appeal, "[t]he burden of proving the invalidity of the agency action is on the party asserting invalidity." K.S.A. 77-621(a)(1); see In re Equalization Appeal of Wagner, 304 Kan. 587, 597, 372 P.3d 1226 (2016). Under the KJRA, we may only grant relief if one or more of the enumerated circumstances in K.S.A. 77-621(c) are present:

"(1) The agency action, or the statute or rule and regulation on which the agency action is based, is unconstitutional on its face or as applied; "(2) the agency has acted beyond the jurisdiction conferred by any provision of law; "(3) the agency has not decided an issue requiring resolution; "(4) the agency has erroneously interpreted or applied the law; "(5) the agency has engaged in an unlawful procedure or has failed to follow prescribed procedure; "(6) the persons taking the agency action were improperly constituted as a decision-making body or subject to disqualification; "(7) the agency action is based on a determination of fact, made or implied by the agency, that is not supported to the appropriate standard of proof by evidence that is substantial when viewed in light of 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, arbitrary or capricious."

"[I]nterpretation of statutes and administrative regulations presents questions of law subject to do novo review. . . . And we give no deference to an agency's interpretation of its regulations." Central Kansas Medical Center v. Hatesohl, 308 Kan. 992, 1002, 425 P.3d 1253 (2018). As a general rule, when construing tax statutes, provisions which impose a tax "are to be construed strictly

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In re Tax Appeal of River Rock Energy Co. in favor of the taxpayer." In re Tax Exemption Application of Cen- tral Illinois Public Services Co., 276 Kan. 612, 616, 78 P.3d 419 (2003).

I. DID BOTA ERR IN VALUING CERTAIN WELLS BASED ON MINIMUM LEASE VALUES?

River Rock argues BOTA erred in upholding the Counties' valuations of certain wells based on the use of minimum lease values set forth in the Guide. K.S.A. 79-329 provides:

"For the purpose of valuation and taxation, all oil and gas leases and all oil and gas wells, producing or capable of producing oil or gas in paying quantities, together with all casing, tubing or other material therein, and all other equipment and material used in operating the oil or gas wells are hereby declared to be personal property and shall be assessed and taxed as such."

K.S.A. 79-501 requires personal property "shall be appraised at its fair market value in money." "'Fair market value' means the amount in terms of money that a well informed buyer is justified in paying and a well informed seller is justified in accepting for property in an open and competitive market, assuming that the parties are acting without undue compulsion." K.S.A. 79-503a. "The appraisal process utilized in the valuation of all real and tangible personal property for ad valorem tax purposes shall conform to generally accepted appraisal procedures and standards which are consistent with the definition of fair market value unless otherwise specified by law." K.S.A. 79-503a. The relevant factors to consider when appraising oil and gas wells and leases for ad valorem tax purposes include:

"the age of the wells, the quality of oil or gas being produced therefrom, the nearness of the wells to market, the cost of operation, the character, extent and permanency of the market, the probable life of the wells, the quantity of oil or gas produced from the lease or property, the number of wells being operated, and such other facts as may be known by the appraiser to affect the value of the lease or property." K.S.A. 79-331(a).

Statutorily, oil and gas wells and leases are appraised in accordance with K.S.A. 79-331(a) and K.S.A. 79-503a in order "'to reach the actual fair market value in the market place as opposed to a fictional, unrealistic, or arbitrary determination.'" Board of Ness County Commr's v. Bankoff Oil Co., 265 Kan. 525, 540-41,

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In re Tax Appeal of River Rock Energy Co.

960 P.2d 1279 (1998). K.S.A. 79-505(a) provides: "The director of property valuation shall adopt rules and regulations or appraiser directives prescribing appropriate standards for the performance of appraisals in connection with ad valorem taxation in this state." Relevant to this issue is PVD's procedures for oil and gas well and lease appraisals as explained in the Guide—specifically, the use of minimum lease values as an appraisal method for marginally producing wells. As BOTA acknowledged, the Guide provides for the subtrac- tion of certain operating costs from the working interest portion of an oil or gas lease. Most pertinent to the issues on appeal is the Guide's Gas Rendition-Schedule Value Instructions (Rendition). BOTA characterized the Guide's "'working interest minimum lease value'" as "[t]he third method of expense allowance." As discussed later, River Rock challenges BOTA's characterization of the minimum lease value as a method of deducting operating expenses. However, BOTA correctly noted: "[T]he Guide allows a maximum lease operating expense allowance of 90% of the working interest value to be deducted." But is the Guide in compliance with the statutory directive for oil and gas wells to be appraised at market value? We think not. River Rock's argument seems highly persuasive. The effect of Section VI of the Rendition is to prevent the gross working interest in any producing well from ever dropping to zero. In fact, that was the express intent of adopting the minimum lease value when the Guide was developed. If the actual working interest subtotal (working interest valuation minus allowable expenses) is lower than 10 percent of the working interest valuation (working interest minimum lease valuation), the minimum lease value applies. In other words, the use of the minimum lease value on limited-production wells will always create an assessed value higher than the actual gross working interest value. This valuation method arbitrarily substitutes the higher of the two possible values to determine the gross working interest. It takes no particularly onerous leap of the imagination to envision a situation in which a gas well could be producing in some amount, yet the allowable expenses/deductions (operating costs, wellhead compression, and water expenses) make a zero or negative gross

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In re Tax Appeal of River Rock Energy Co. working interest value based on current market conditions. In fact, the record reflects at least two of River Rock's wells had negative gross working interest values—one at $-7,930 and another at $- 12,790. No well-informed buyer would be justified in paying for something with zero or negative value. And no well-informed seller could conscionably entertain accepting payment for the same. Moreover, substituting the minimum lease value for the working interest subtotal restricts full consideration of two factors under K.S.A. 79-331(a)—the cost of operation and the character of the market. Section VI of the Rendition determines the working interest total market value by adding the greater of the working interest subtotal or the minimum lease value to the value of certain equipment used or contained in the well. The assessed value for taxation purposes is then determined as a percentage of the working interest total market value. But this valuation is necessarily inconsistent with the fair market value of the property when the minimum lease value (Section VI, Line 6) is used in place of the actual gross working interest value (Section VI, Line 5). So the use of the minimum lease value causes an assessed valuation greater than the fair market value for the subject wells, which violates the statutory directives of K.S.A. 79-331(a) and K.S.A. 79-503a to determine the actual fair market value rather than an arbitrary value. See Bankoff, 265 Kan. at 540-41. Thus, BOTA's decision resulted from an erroneous interpretation or application of the law. River Rock has met its burden to show BOTA improperly applied the law and is entitled to relief under K.S.A. 77-621(c)(4).

II. DID BOTA'S USE OF MINIMUM LEASE VALUES LEAD TO ARBITRARY AND ERRONEOUS VALUATIONS?

River Rock argues the valuation of its wells based on the minimum lease value caused an arbitrary assessment contrary to applicable statutes. River Rock divides its argument into various subpoints. For the sake of brevity and clarity, we decline to address fully its arguments on many of these subpoints as they are addressed previously in the minimum lease section. Even so, River Rock makes a persuasive argument that BOTA erred in finding the minimum lease value works along with the other valuation methods prescribed in the Guide. We agree the Guide does

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In re Tax Appeal of River Rock Energy Co. not allow for the proper reconciliation of market values when the working interest values and minimum lease values are so disparate. For the benefit of the parties, we insert at this point a sample copy of the pertinent sections of the rendition statement: This form also will be helpful as we discuss the lines involving the proper methodology for appraising all the equipment used

in and on the wells at issue. As River Rock points out, the Uniform Standards of Profes- sional Appraisal Practice (USPAP) guidelines describe reconciliation as a process in which the appraiser analyzes two different conclusions based on alternative valuation methods and weighs the appropriateness of each approach to determine the correct value based on the intended use of the appraisal. River Rock's citation to the USPAP guidelines is persuasive and well founded as USPAP appraisal methodologies have consistently been cited ap- provingly by Kansas appellate courts in the context of other ad valorem tax appraisals. See generally In re Equalization Appeal of Kansas Star Casino, 52 Kan. App. 2d 50, 65-66, 362 P.3d 1109 (2015). Line 7 of Section VI of the Guide instructs the appraiser to use "whichever line is greater" of either Line 5 (working interest

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In re Tax Appeal of River Rock Energy Co. subtotal) or Line 6 (minimum lease value) of Section VI. This renders the two options mutually exclusive. Deductions for actual costs and other expense allowances are no longer factored into the working interest total market value when the minimum lease value is used instead of the working interest subtotal. Instead, this allowance is capped at 90 percent of the unadjusted working interest value by substituting the minimum lease value, which is contrary to the proposition a tax statute is to be strictly construed in the favor of the taxpayer. See Central Illinois Public Service Co., 276 Kan. at 616. Line 7 of Section VI prevents the appraiser from engaging in a proper reconciliation analysis because it requires the higher of the two values be used. This does not allow for sufficient consideration and reconciliation of the two values consistent with the intent of the appraisal—to determine the fair market value of the property. See K.S.A. 79-331(a); K.S.A. 79-503a. Rather, it reflects an intent to produce a desired result—always using the higher value, increasing the assessed value and the resulting ad valorem tax levied. Deducting 90 percent of the unadjusted working interest value under the minimum lease value may seem like a hefty allowance for expenses. Even so, the resulting gross working interest based on the minimum lease value may still be a significant amount, i.e., hundreds or even thousands of dollars. Yet, River Rock presented unrebutted evidence that actual expenses can and do create wells with zero or negative gross working interest values. Here, the record reflects the previously mentioned wells with negative gross working interest values were assigned minimum lease values of $4,908 and $4,422, respectively. No well-informed buyer would be justified in paying hundreds, much less thousands, of dollars for something with a zero or negative value. The requirement to use the greater of the minimum lease value or the working interest subtotal (actual gross working interest value) strips the appraiser of the ability to reconcile the two values to determine a reasonable fair market value of the property. BOTA's decision reflects an erroneous interpretation or application of the law, factual findings unsupported by the record, and/or an otherwise arbitrary action. Thus, River Rock has met its burden to show it is entitled to relief under K.S.A. 77-621(c)(4), (7), and/or (8).

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In re Tax Appeal of River Rock Energy Co.

III. WAS BOTA'S CHARACTERIZATION OF THE EFFECT OF THE MINIMUM LEASE VALUE CONTRARY TO THE EVIDENCE?

River Rock argues BOTA incorrectly characterized the minimum lease value as a method of deducting operating expenses. In a very narrow sense, River Rock is partially correct; however, its argument is ultimately unpersuasive. BOTA's characterization is perhaps better labeled as an over-simplification of the evidence and the operative effect of the Guide's use of minimum lease values, which apply when the deductions allowed for costs and expenses in Lines 3 and 4 of Section VI exceed 90 percent of the unadjusted working interest value from Line 2. The minimum lease value allows for deduction of expenses, albeit incidentally. Before assigning the minimum lease value, the appraiser must calculate the working interest subtotal, which considers the actual expense allowances. Since the minimum lease value applies when it is greater than the working interest subtotal, deductions for some, but not all, operating expenses and other allowances are implicitly considered. Based on the comparison required by Line 7 of Section VI, it appears BOTA correctly characterized the minimum lease value as a method of deducting operating expenses equal to 90 percent of the working interest value. This result still leads to an effective deduction of operating expenses, albeit in a lesser amount than the actual expenses incurred. River Rock's argument is unavailing because it is essentially a distinction without a difference. Neverthe- less, resolving this issue is unnecessary based on our holding the use of minimum lease values is legally erroneous.

IV. DID BOTA ERR IN VALUING THE EQUIPMENT IN THE WELLS?

River Rock argues its wells were incorrectly appraised based on the prescribed equipment values applied to the wells. River Rock asserts it presented undisputed evidence that the true fair market value of its equipment was $0.00. Specifically, River Rock argues the Counties' valuation of the equipment was unsupported by the record. To determine the assessment value of the wells for taxation, the working interest total market value (Line 10) is calculated by adding the greater of the working interest subtotal or the minimum

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In re Tax Appeal of River Rock Energy Co. lease value (Line 7) to the value of certain equipment used as part of or contained within the well (Lines 8a-c and 9), then multiply- ing the working interest total market value by a prescribed percentage. The equipment in the wells valued in Line 8a consisted of (1) a pumping unit with motor; (2) a gas separator; (3) tubing and rods situated in the well bore; and (4) an insert pump situated in the well bore. River Rock relies on the following testimony of its expert witness, Jim Allen: "'As a result of River Rock's decision to plug and abandon a large number of unprofitable wells, I have made a very extensive effort . . . to sell the equipment associated with such wells.'" (Emphasis added.) This testimony is problematic for many reasons. First, the equipment in question is only that associated with the unprofitable wells. While Allen stated there were a large number of unprofitable wells, it is unclear how many of River Rock's wells were unprofitable, and of those unprofitable wells, how many were included in the 203 appeals BOTA actually decided in its order. Second, River Rock fails to acknowledge the significance of the reason the wells were unprofitable. Allen testified:

"The Subject Wells are very shallow, marginal [coalbed methane] wells and producing conditions associated with these wells are very unique to southeast Kan- sas and northeast Oklahoma. . . . In addition, with the low natural gas prices that have been prevalent over the last few years, there have been very few, if any, new [coalbed methane] wells drilled in this area. . . . [T]he narrow market for this equipment combined with the current market conditions has rendered this equipment worthless at this time." (Emphases added.)

Allen also stated the removal and sale of the equipment was typi- cal "[w]hen River Rock temporarily abandons a well prior to plug- ging the well." (Emphasis added.) Allen's testimony points to several market conditions that are subject to change and is generally unrelated to the condition or usefulness of the equipment within its intended application. Mainly, Allen's testimony shows natural gas prices affect the value of the equipment if it is designed for use in shallow, marginally producing wells. Nothing in Allen's testimony suggests these wells would be unprofitable if the price of natural gas went up, much less that the equipment itself is or would be unsuitable for use as market conditions improved. To the contrary, it seems the equipment is particularly suited to the unique nature of the

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In re Tax Appeal of River Rock Energy Co. subject wells. It is the marginal production capacity of the wells coupled with the current price of natural gas that renders the wells unprofitable at this time. But these factors are separately ac- counted for in Section V (Gross Reserve Calculation) and Lines 2 through 7 of Section VI of the Rendition. River Rock is trying to tie the value of the equipment to vari- able market conditions in a manner that could lead to drastic swings in its value from year to year. But this would largely render meaningless general market principles that the value of equipment will depreciate over time based on age, wear, and obsolescence. Under River Rock's proposed valuation, its equipment might be considered more valuable five years from now than it was five years ago. Moreover, Allen's testimony suggests River Rock was only temporarily abandoning the wells, supporting a reasonable inference that River Rock believed the wells' reserves were sufficient to produce in profitable quantities given an increase in natural gas prices. Allen's testimony that the equipment is specifically intended for use in shallow coalbed methane wells supports another reasonable inference that the same or substantially similar equipment could or would be used if the market price of natural gas improved, thus, making the wells profitable in the future. Finally, River Rock fails to point to any record evidence regarding the age of the equipment; its original value; the general depreciation of its value over time; the most recent value of the equipment before the decline in natural gas prices; an estimate of the equipment's value in its present condition without the decline of natural gas prices; anything suggesting River Rock's wells or similar wells could not produce in paying quantities despite a potential favorable change in market conditions, i.e., the wells' reserves were already exhausted; or any evidence on the relative stability of natural gas prices over time. River Rock failed to establish the equipment's current condition coupled with its remaining economic livelihood and the likely duration of continuing market conditions would render it valueless to a well-informed buyer or a well-informed seller. Among other factors, K.S.A. 79-331(a) requires consideration of "the character, extent and permanency of the market." (Emphasis added.) River Rock fails to account for or consider the permanency of the market

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In re Tax Appeal of River Rock Energy Co. conditions supporting its current proposed valuation of the equipment. Simply put, a well-informed buyer might be justified in declining to purchase otherwise serviceable equipment for which it has no presently profitable use. Even so, a well-informed buyer would not be justified in expecting to pay nothing for the same equipment when its present condition could render its use profitable with reasonably probable changes in market conditions. Simi- larly, a well-informed seller would not be justified in accepting nothing in return for otherwise serviceable equipment with ongoing economic viability given a favorable change in market conditions. Here, River Rock failed to show either its equipment was already of minimal value in its present condition or the existing market conditions rendering its present use unprofitable were likely to persist so as to render the equipment obsolete or unserviceable by the time any favorable change in market conditions might occur. BOTA properly rejected River Rock's valuation on the basis the evidence presented was "scant" and "insufficient." River Rock has not met it burden to prove BOTA's valuation of the equipment was improper except as explained below. However, River Rock's argument on imputing the values in Line 8b of certain segments of underground poly flow lines used to connect the gas wells to a separate saltwater disposal well (SWD) is persuasive. River Rock presented uncontested evidence the flow lines connected to the SWD could not be physically salvaged without destroying them. Even if they could be salvaged, the cost to remove the lines would far exceed any salvage value. And River Rock presented undisputed testimony there exists no market for used SWD flow line because it is inexpensive to produce in new condition and no prudent operator would purchase and install used flow line due to the potential for costly leaks. If the value of the SWD flow lines was included in the working interest total market value (Line 10), BOTA's decision affirming the Counties' valuations of the subject wells was based on a finding of fact made or implied without proper support in the record and/or resulted from an arbitrary failure to consider undisputed evidence. Thus, whatever value was added for the SWD flow lines must be subtracted out and River Rock is entitled to relief under

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K.S.A. 77-621(c)(7) and/or (8) by reducing the total equipment value.

V. DID BOTA ERR BY REFUSING TO GRANT FILING FEE ABATEMENTS?

River Rock argues BOTA erred in refusing to grant an abatement of any portion of the filing fees paid and refusing to docket the appeals for its remaining wells. The Counties contend we lack jurisdiction to consider the issue. The Counties first argue we cannot consider the denial of abatement under the KJRA because (1) it is an administrative order, not an adjudicative order, and (2) BOTA cannot be joined as a party to this action and therefore cannot properly participate in a matter in which it has a direct and substantial interest. The plain language of K.S.A. 74-2438a(a) matches our Supreme Court's guidance in Kansas Bldg. Industry Workers Comp. Fund v. State, 302 Kan. 656, 674-75, 359 P.3d 33 (2015) (regulatory measures intended to reimburse the State for the costs related to administrative measures and proceedings are valid if such fees are reasonable in relation to the actual costs involved). The propriety of BOTA's decision turns on whether it erroneously interpreted or applied the regulation or engaged in an unlawful procedure or failed to follow prescribed procedures. These questions are properly within the scope of review under the KJRA. See K.S.A. 77-621(c)(4) and (5). The Counties further argue we lack jurisdiction because River Rock did not seek judicial review within 30 days of BOTA's order consolidating the docketed appeals. For consolidation, BOTA's order stated: "The Board . . . finds the Taxpayers' Motion for Con- solidation of Appeals is granted, and the appeals referenced in the motion shall be consolidated." There is significant ambiguity in the meaning of "the appeals referenced in the motion." BOTA's order could be interpreted to mean it would docket the additional appeals but would not grant any abatement of the filing fee already paid. The order also failed to provide the required notice under K.S.A. 77-613(e). The Counties' argument is unpersuasive because BOTA's consolidation order was unclear on whether it would consider the motion as a notice of appeal for the additional wells, which River

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Rock had specifically requested. On its face, the order provided no definitive indication that BOTA was dismissing any additional appeals for which the filing fees had not been paid. At best, this could be loosely inferred from the caption of the order, listing only the originally docketed appeals. There is no clear indication in the record that BOTA declined to docket and consider the additional appeals outside its final order. Because BOTA's order on River Rock's motion for consolidation and abatement violated the final order notification provisions of K.S.A. 77-613(e), it did not trigger the 30-day limit to seek judicial review under the KJRA. See Hei- land v. Dunnick, 270 Kan. 663, 673, 19 P.3d 103 (2001). But the merits of River Rock's arguments cannot be fully determined by us at this time. We must remand for further findings. Without abatement, the filing fee for all 2,150 wells using the full filing fee in the amount of $150 per well would have been $322,500. River Rock filed notices of appeal and paid the full filing fees for 205 of its wells—$30,900—and filed a motion for consolidation of appeals and abatement of the filing fees for all the wells after payment of the full filing fee for the first well on appeal. The matter was decided on prefiled written testimony and stipulated exhibits. No evidentiary hearing took place, and River Rock's challenge to the valuation of nearly all its wells presented the same legal argument because nearly all of its wells had been assigned minimum lease values under the Guide. From this record, we cannot differentiate between those wells with minimum lease values and those with some other valuation, if any. The 2016 taxes for all of River Rock's wells were $487,723.75; thus, the full filing fee would have amounted to slightly more than 66 percent of the total taxes; in our opinion, it seems excessive and fiscally unsound to require a taxpayer to pay such a large amount to exercise the right to appeal. Filing fees that exceed the reasonable costs of administering the appeals amount to an unconstitutional tax and revenue-generating measure. See Kansas Bldg. Industry Workers Comp. Fund, 302 Kan. at 674-75. K.A.R. 94-5-8(e)(2) provides for abated filing fees for property comprising a single economic unit. The prescribed abated filing fee should have been $150 for the most valuable well plus $25 for each additional well. However, this would have required a filing fee of $53,875 ($150 + [$25 x 2,149]) for

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In re Tax Appeal of River Rock Energy Co. all 2,150 wells. Neither BOTA nor River Rock fully complied with the applicable administrative regulation. Either BOTA potentially overcharged River Rock by up to $25,650 for the appeals it docketed ($30,900 – [$150 + (204 x $25)]), or River Rock un- derpaid by $22,975, making 919 wells for which it failed to pay the abated filing fee ([$53,875 - $30,900] x [1 well/$25]). But strict adherence to the abated filing fee provisions under K.A.R. 94-5-8(e)(2) may be still inappropriate if it leads to payment of filing fees above the reasonable costs of administering the proceedings. See Kansas Bldg. Industry Workers Comp. Fund, 302 Kan. at 674-75. In its motion, River Rock requested BOTA also docket appeals on its remaining wells, construe the motion as notice of appeal for those wells, consolidate the additional appeals with those already filed, and grant an abatement of the filing fee for the additional appeals. River Rock's motion did not state what it believed it should pay as an abated filing fee for the additional appeals. While BOTA granted the motion to consolidate the appeals but denied the request for abatement, the order did not reflect whether BOTA would docket and consider the appeals on the additional wells. It could reasonably be construed that BOTA would docket the additional appeals but decline to grant any abatement of the filing fees already paid by River Rock as a result. BOTA's order provided no meaningful explanation for why it was denying an abatement. It simply stated it had charged such fees in the past and was allowed to do so under its own regulations. This does not answer the pertinent question—whether the fee was reasonable in relation to the actual costs involved. We have jurisdiction to consider the abatement issue, generally, pursuant to K.S.A. 77-621. Even so, the record appears insufficient to determine how much, if any, the filing fees should have been abated, although it seems extremely unlikely the costs for deciding this consolidated appeal reached or exceeded $30,900. When it moved for consolidation and abatement, River Rock was still within the time limit for filing notices of appeal on its remaining wells. BOTA's final order fails to explain why it refused to docket the remaining appeals. BOTA cited no regula-

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In re Tax Appeal of River Rock Energy Co. tion(s) about the form of the notice of appeal as a basis for dismissing any additional appeals. Strictly following K.A.R. 94-5- 8(e)(2), the filing fees River Rock paid could have covered appeals for some, but not all, of its additional wells. But it is unclear what the actual administrative costs were for the docketed appeals and what additional costs, if any, BOTA would have incurred if it docketed all of the well appeals with an abated fee of $25.00 after the first and most valuable well. BOTA's own regulation provides for the abatement, and the facts of this appeal seem to fit the reason abatement is provided for in BOTA's regulations. The issues on appeal appear to be identical or nearly identical for each well— the proper appraisal method for the wells and related equipment. At this point, the issue need not be fully decided on the merits. We remand for BOTA to explain its decision. BOTA's reasoning for denying abatement was simply: "The Board further finds it has consistently charged filing fees in the past, as it has in this matter, and as allowed by its regulations." Further explanation on remand allows BOTA to elaborate on the basis for its decision. It cannot simply prescribe and enforce regulations related to filing fees to generate revenue or because it has imposed them in the past. BOTA does not have a substantial and direct interest in the collection of filing fees simply to charge and collect whatever amount it deems appropriate. BOTA's regulatory authority is not unlimited. Rather, it is constrained by K.S.A. 74-2438a(a), which authorizes the director of BOTA to charge and collect a filing fee "to recover all or part of the costs of processing such actions incurred by the state board of tax appeals." If BOTA's decision turned on a conclusion that it lacked jurisdiction to consider River Rock's additional appeals, then we have subject matter jurisdiction to review BOTA's conclusion as to its own jurisdiction. See Wall v. Kansas Dept. of Revenue, 54 Kan. App. 2d 512, 514, 401 P.3d 670 (2017). But BOTA's findings in its consolidation order and its final opinion are insufficient to determine whether its decision hinged on a jurisdictional determination. Thus, we remand for more findings before BOTA for what remedy, if any, BOTA has to address River Rock's request for abatement.

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In re Tax Appeal of River Rock Energy Co.

CONCLUSION

Based on our findings, we affirm BOTA's valuation of the equipment used on and in the wells, except the value of the poly pipe as explained below to determine the working interest value, but we reverse and remand for BOTA to make the following determinations:

 Whether the request to docket and consolidate the additional appeals was denied because of: (1) the form of the notice of appeal used by River Rock; (2) River Rock's failure to pay the filing fees in full for all 2,150 wells; or (3) River Rock's failure to pay the correct amount assuming the full filing fee had only been assessed for the first most valuable well and abated for each of the other 2,149 wells under K.A.R. 94-5-8(e)(2).  Whether: (1) abatement is feasible under these facts; (2) BOTA should have allowed abatement of the filing fee for the docketed appeals to $25.00 per well after payment of the full filing fee for the first most valuable well; and (3) the request by River Rock to docket the additional appeals in its motion for consolidation and abatement sufficiently preserved the issue for all wells not contained in the initial order of consolidation.  If BOTA determines abatement is not feasible, it must explain what additional administrative costs, if any, were incurred to support denial of the request to abate.  What additional filing fee, if any, River Rock must pay to docket appeals for any wells not docketed in the order of consolidation, explaining what additional administrative costs, if any, will be incurred.  Reassessment of all wells subject to this appeal without the use of the minimum lease value because the current valuation deviates from applicable law.  Remove the valuation for the poly pipe used in the SWD flow lines in each of the wells subject to this appeal because it has no economic life left and is, therefore, worth nothing when considering the individual well values.

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In re Tax Appeal of River Rock Energy Co.

 Follow the previous valuation used for the other equipment in and on each of the wells subject to this appeal as reflected on line 8a of Section VI.

Without BOTA's determination of whether abatement should have been allowed under these facts and whether the actions of River Rock sufficiently preserved its right to appeal on all 2,150 wells, we cannot fashion what, if any, other remedy is available to River Rock.

Affirmed in part, reversed in part, and remanded with directions.

VOL. 58 COURT OF APPEALS OF KANSAS 117

State v. Albano

___

No. 120,767

STATE OF KANSAS Appellee, v. ANITA JO ALBANO, Appellant.

___

SYLLABUS BY THE COURT

1. TRIAL—Determining Jury Instruction Error—Appellate Review. An appellate court employs a multi-step process to review claims of jury instruction error. First, the court must decide whether the issue was preserved. Sec- ond, it must decide whether an error occurred by determining whether the instruction was legally and factually appropriate. Finally, if error is found, the court must then determine whether the error is reversible.

2. SAME—Limiting Instruction for K.S.A. 60-455 Evidence. If K.S.A. 60-455 evidence is admitted at trial, then a limiting instruction is generally required. But the district court's failure to give a limiting instruction concerning K.S.A. 60-455 evidence is not always reversible error. Under the facts and circumstances of this case, the district court's failure to give a limiting instruction concerning the admissibility of the defendant's prior drug convictions was not clearly erroneous.

3. SAME—Challenged Jury Instruction in This Case Legally Correct. The district court does not undermine the jury's power of nullification by instructing the jury that it "must" follow the law and that it is the jury's "duty" to do so.

4. CRIMINAL LAW—Kansas Sentencing Guidelines Act—Constitutional Challenge to Sentence Fails. The sentencing court's use of judicial findings of prior convictions to sentence a defendant under the Kansas Sentencing Guidelines Act does not violate section 5 of the Kansas Constitution Bill of Rights.

Appeal from Riley District Court; JOHN F. BOSCH, judge. Opinion filed April 10, 2020. Affirmed.

Heather Cessna and Kasper Schirer, of Kansas Appellate Defender Office, for appellant.

Kelly G. Cunningham, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

Before BRUNS, P.J., MALONE and GARDNER, JJ.

MALONE, J.: Anita Jo Albano appeals following her convictions of two counts of distribution of a controlled substance within 1,000 feet of a school. Albano claims: (1) The district court erred

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State v. Albano by failing to give a limiting instruction concerning the admission into evidence of her prior drug convictions; (2) the district court undermined the jury's power of nullification by instructing the jury that it "must" follow the law and it was the jury's "duty" to do so; and (3) the sentencing court's use of judicial findings of prior convictions to sentence a defendant under the Kansas Sentencing Guidelines Act (KSGA) violates section 5 of the Kansas Consti- tution Bill of Rights. For the reasons stated in this opinion, we reject Albano's claims and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2017, Riley County Police Officer Michael Dunn assisted in three controlled buys between a confidential informant, S.O., and Al- bano. Each of the buys took place in Albano's apartment, 280 feet from an elementary school. The first controlled buy occurred on Jan- uary 19, 2017. S.O. bought 12 oxycodone pills from Albano for $180. S.O. had texted Albano to set up the buy. S.O. walked into Albano's apartment, got the pills, and returned to Dunn's car a few minutes later. On January 20, 2017, S.O. bought one oxycodone pill from Al- bano for $20. S.O. first went to Albano's door but received no answer, so he called her. Shortly after the call, Albano walked toward her apartment from an alley and took S.O. inside. S.O. returned to Dunn's car a few minutes later with the pill. On April 10, 2017, S.O. bought 10 oxycodone pills from Albano for $200. S.O. walked in, got the pills, and returned to Dunn's car a short time later. All three of the buys were audio and video recorded by a device attached to S.O. On September 14, 2017, the State filed an amended complaint charging Albano with three counts of distribution of a controlled substance within 1,000 feet of a school based on the transactions on Jan- uary 19, January 20, and April 10, 2017. The district court held a jury trial on October 31, 2018. Dunn testified to driving S.O. to each of the three buys and the sequence of events. Dunn also testified that Albano appears in all three video recordings of the buys. Riley County Police Detective Robert Dierks testified that he strip- searched S.O. before and after the January 19 and 20, 2017 buys and that nothing was found. Dierks also explained that the department

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State v. Albano paid S.O. for completing the buys. Riley County Police Sergeant Na- than Boeckman, S.O.'s handler, testified that he strip-searched S.O. before and after the April 10, 2017 buy and nothing was found. S.O. testified about the three controlled buys. S.O. was originally working off charges as an informant but was now paid for conducting buys. S.O. explained that Albano was not one of the original targets identified by the police, but he brought Albano's name up to them because he did drugs with her before. S.O. was the one who reached out to Albano asking to buy drugs. Albano did not respond two of the times he reached out, but S.O. knew he could just drop by her apartment to get the pills because she had an open-door policy. At the time of the buys, S.O. had a prescription for Percocet. S.O. admitted that he was using methampheta- mine and opiates during early 2017, but he did not use drugs when doing controlled buys for the police. Albano testified on her own behalf, presenting an entrapment defense. Albano testified that she had prior convictions for distrib- uting drugs, but she had successfully completed probation 4 months before the first buy and she received only one sanction during the entire 22-month probation period. Albano stated that during the time frame the buys occurred she was "in the business of putting [her] home together, and trying to get [her] life put back together." Albano testified that she had a prescription for oxycodone because of her severe back problems. Albano explained that she had since asked her doctor to take her off of oxycodone because "people, including [S.O.], were constantly berating [her] in an effort to get those pills, and if [she] didn't sell them . . . they ended up being stolen." Albano admitted to giving S.O. the pills on January 19 and 20, 2017, within 1,000 feet of an elementary school. She said she felt pressured to sell S.O. the pills because he was always reaching out to her and he was at her house daily; he was so per- sistent that she gave him the pills just to get him to leave. Albano did not remember giving S.O. the 10 pills on April 10, 2017. She stated that since she did not get paid for the first 12 pills, she would not have sold to him after that. When asked what she was doing counting $200 in the April 10, 2017 video if she was

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State v. Albano not selling S.O. pills, Albano responded that she was randomly counting her own money since she had just gotten paid and she wanted to know what she had in her wallet. The State called Riley County Police Corporal Neil Ramsey as a rebuttal witness. Ramsey testified that he interviewed Albano about the three buys and Albano told him that she did not "typically" sell pills and that she had sold them in the past but not during the time frame he asked about. The jury found Albano not guilty of count one—distribution on January 19, 2017—and guilty on counts two and three—distribution on January 20, 2017, and April 10, 2017. On January 28, 2019, the district court sentenced Albano to 101 months' imprisonment and 36 months' postrelease supervision. Albano timely appealed the district court's judgment.

DID THE DISTRICT COURT ERR BY ALLOWING ADMISSION OF ALBANO'S PRIOR DRUG CONVICTIONS WITHOUT GIVING A LIMITING INSTRUCTION?

Albano first claims the district court erred by failing to give a limiting instruction concerning the admission into evidence of her prior drug convictions. It was Albano herself who first testified about her prior convictions. Albano concedes that she did not request a limiting instruction at trial, but she argues that a limiting instruction was factually and legally appropriate because her prior convictions met the definition of K.S.A. 60-455 evidence. The State argues that Albano is precluded from seeking review on this issue because she invited the error by not requesting the limiting instruction. In the alternative, the State argues that any error was not clearly erroneous. The court employs a multi-step process to review claims of jury instruction error. First, this court must decide whether the issue was preserved. Second, it must decide whether an error occurred by determining whether the instruction was legally and factually appropriate. In addressing the first two steps, this court exercises unlimited review. State v. Williams, 308 Kan. 1439, 1451, 430 P.3d 448 (2018). If error is found, this court must then determine whether the error is reversible. 308 Kan. at 1451. Because Albano did not object at trial, a clear error standard applies. See K.S.A. 2019 Supp.

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22-3414(3); 308 Kan. at 1451. Under a clear error standard, the appellate court must decide "whether it is 'firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.'" 308 Kan. at 1451. Albano has the burden of establishing clear error. See State v. Gentry, 310 Kan. 715, 721, 449 P.3d 429 (2019). To determine whether she met her burden, the court examines the entire record de novo. See 310 Kan. at 721.

We will not apply the invited error doctrine.

A defendant's ability to allege an instructional error is not absolute. State v. Stewart, 306 Kan. 237, 248, 393 P.3d 1031 (2017). The invited error doctrine states that a "defendant may not invite and lead a district court into error and then complain of the error on appeal." 306 Kan. at 248. The State argues that Albano invited this error by failing to request the instruction in her proposed instructions or at the jury instruction conference. Albano counters that she did not invite the error but that she simply did not request the instruction or object to its omission. The Kansas Supreme Court has found that the invited error doctrine applies when: (1) the district court gave the defendant's requested instruction; (2) the defendant agreed to the wording of an instruction; or (3) the defendant agreed to a response to a jury question. See Stewart, 306 Kan. at 248-49. In these types of cases, the defendant took affirmative action to cause the error that he or she later appealed. Here, there was no agreement by Albano that the district court should not give a limiting instruction. The only action Albano took concerning this issue was choosing to introduce the evidence of her prior convictions in her case-in-chief. But a defendant does not waive the applicability of a limiting instruction simply by in- troducing K.S.A. 60-455 evidence because a limiting instruction is required regardless of which party introduced the evidence. State v. Molina, 299 Kan. 651, 660, 325 P.3d 1142 (2014). Thus, the invited error doctrine does not prevent Albano from arguing this issue on appeal.

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The district court erred in failing to give a limiting instruction, but this failure was not clearly erroneous.

Turning to the merits, Albano argues that a limiting instruction was appropriate because her prior convictions met the statutory definition of K.S.A. 60-455 evidence. She asserts that a limiting instruction is legally necessary when a defendant's prior convictions are admitted because otherwise the jury will impermissibly use the prior convictions as general propensity evidence. K.S.A. 2019 Supp. 60-455 states:

"(a) Subject to K.S.A. 60-447, and amendments thereto, evidence that a person committed a crime or civil wrong on a specified occasion, is inadmissible to prove such person's disposition to commit crime or civil wrong as the basis for an inference that the person committed another crime or civil wrong on another specified occasion. "(b) Subject to K.S.A. 60-445 and 60-448, and amendments thereto, such evidence is admissible when relevant to prove some other material fact including motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident."

If K.S.A. 60-455 evidence is admitted, then a limiting instruction is required. State v. Butler, 307 Kan. 831, 860, 416 P.3d 116 (2018). At trial, Albano testified about her prior convictions to explain that she was working to get her life on track and that she did not want to sell the pills. Albano mentioned her convictions again in her closing when discussing her entrapment defense. Albano does not explain on appeal what a limiting instruction would have said in this case, other than to instruct the jury not to consider the evidence of her prior convictions to prove that she had a propensity to commit the crimes for which she was charged. In any event, a limiting instruction is required for the admission of K.S.A. 60- 455 evidence regardless of which party introduced the evidence. Molina, 299 Kan. at 660. Thus, we conclude the district court should have given a limiting instruction in this case and its failure to do so was erroneous. But the district court's failure to give a limiting instruction concerning K.S.A. 60-455 evidence is not always reversible error. State v. Gunby, 282 Kan. 39, 59, 144 P.3d 647 (2006). Albano argues that without the limiting instruction, "the jury was left . . . potentially believing that it could generally use those prior crimes as propensity evidence when deciding Ms. Albano's ultimate

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State v. Albano guilt." The State argues that the district court's failure to give a limiting instruction in this case was not clearly erroneous. We agree with the State that the district court's failure to give a limiting instruction in this case was not clearly erroneous. Al- bano relied on an entrapment defense. To pursue an entrapment defense, the defendant must admit substantial involvement in the crimes. See State v. Hall, No. 117,481, 2018 WL 3596257, at *4 (Kan. App. 2018) (unpublished opinion), rev. denied 309 Kan. 1351 (2019). Albano did just that as she admitted on direct examination that she gave S.O. the oxycodone pills on January 19 and 20, 2017, within 1,000 feet of a school. The real issue at trial was whether S.O. induced or solicited Albano to sell the pills when she was not predisposed to do so. It is unclear how the jury could have impermissibly relied on Albano's prior convictions as general propensity evidence when there was no real dispute that she committed the acts in question. Even assuming it was possible for the jury to consider Al- bano's prior convictions as general propensity evidence, we are not "'firmly convinced that the jury would have reached a different verdict had the instruction error not occurred.'" Williams, 308 Kan. at 1451. The verdict establishes that the jury did not impermissibly rely on Albano's prior convictions to establish her guilt because the jury acquitted Albano of one of the three charges. If the jury had impermissibly relied on Albano's prior crimes to determine her guilt, it would have convicted her on all counts. See State v. Holman, 295 Kan. 116, 129, 284 P.3d 251 (2012), overruled on other grounds by State v. Dunn, 304 Kan. 773, 375 P.3d 332 (2016). Based on our review of the entire record, we find the district court's failure to give a limiting instruction was not clearly erroneous.

DID THE DISTRICT COURT UNDERMINE THE JURY'S POWER OF NULLIFICATION BY INSTRUCTING THE JURY THAT IT "MUST" FOLLOW THE LAW?

Albano next claims the district court undermined the jury's power of nullification by instructing the jury that it "must" follow the law and it was the jury's "duty" to do so. Albano complains of language in Instruction No. 13 which stated: "Your verdict must

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State v. Albano be founded entirely upon the evidence admitted and the law as given in these instructions." She also complains of language in In- struction No. 15 which stated in part that "it is your duty as sworn triers in this case to be governed in your deliberations and final conclusions by the evidence as you understand and remember it, and by the law as given in these instructions." Albano argues that the district court committed clear error by giving these instructions because they prevented the jury from sending a message to the Riley County Police Department about its questionable use of confidential informants. The State argues that the Kansas Supreme Court, in State v. Boothby, 310 Kan. 619, 448 P.3d 416 (2019), addressed the same instructional language now challenged by Albano and determined that it did not interfere with the jury's power to nullify. The State also points out that our Supreme Court has not recognized "a right" to nullification. In her reply brief, Albano concedes that the language she challenges in Instruction No. 13 is identical to that at issue in Boothby. But she argues that unlike Boothby, she also challenges the language in Instruction No. 15 and the combined effect of these two erroneous instructions was a misstatement of the law. As in her first issue, this court applies the three-step analysis for claims of jury instruction error. Because Albano did not object to either instruction, the clear error standard applies. See K.S.A. 2019 Supp. 22-3414(3); Williams, 308 Kan. at 1451. As the State correctly points out, in Boothby, the Kansas Su- preme Court addressed the same challenge to the language found here in Instruction No. 13. Boothby argued that "the district court erred when it instructed the jury: 'Your verdict must be founded entirely upon the evidence admitted and the law as given in these instructions'" because "it told the jury that it did not have a right to nullify." 310 Kan. at 629. The Kansas Supreme Court stated that Kansas does not recognize a right to jury nullification. 310 Kan. at 631. The court found that the district court did not err in giving the challenged instruction because it was legally correct:

"[T]he challenged instruction was legally correct. . . . This is an accurate—and bedrock—statement of law that mirrors the juror's oath; upholds the role of judge and jury; and most importantly, protects the accused. . . . Thus, a district court

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State v. Albano does not err when it tells a jury to follow the law. [Citations omitted.]" 310 Kan. at 631-32. Our Supreme Court pointed out that the district court does not undermine the power to nullify by instructing the jury to follow the law because nullification is a deliberate rejection of the mandatory charge to follow the law. 310 Kan. at 632. Because our Su- preme Court has determined that the language Albano complains of in Instruction No. 13 is legally correct and does not interfere with the jury's power to nullify, she has no right to relief on that claim. Ponds v. State, 56 Kan. App. 2d 743, 753-54, 437 P.3d 85 (2019) ("This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position."). Finally, Albano's challenge to Instruction No. 15 also fails. Alt- hough Instruction No. 15 used different wording than Instruction No. 13, the complained of language is substantively identical to the language challenged by Boothby: it is telling the jury to follow the law. The district court does not err when it tells the jury to follow the law nor does it undermine the power to nullify. Boothby, 310 Kan. at 632. Thus, the district court did not err in giving these legally correct instructions. Finding no error, we need not engage in the clear error analysis. See Williams, 308 Kan. at 1451.

DOES THE SENTENCING COURT'S USE OF JUDICIAL FINDINGS OF PRIOR CONVICTIONS VIOLATE SECTION 5 OF THE KANSAS CONSTITUTION BILL OF RIGHTS?

Finally, Albano claims for the first time on appeal that the sentencing court's use of judicial findings of prior convictions to sentence a defendant under the KSGA violates section 5 of the Kansas Constitution Bill of Rights. Section 5 of the Kansas Constitution Bill of Rights states: "The right of trial by jury shall be inviolate." Kan. Const. Bill of Rights, § 5. Section 5 is a basic and fundamental right. State v. Love, 305 Kan. 716, 734, 387 P.3d 820 (2017). Thus, Albano correctly argues that this court can hear her constitutional challenge raised for the first time on appeal because it is necessary to prevent the denial of a fundamental right. See State v. Phillips, 299 Kan. 479, 493, 325 P.3d 1095 (2014). A constitutional challenge to the KSGA involves a question of law subject to unlimited review. State v. Wetrich, 307 Kan. 552, 555, 412 P.3d 984 (2018).

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Albano concedes that this argument has been rejected with respect to the United States Constitution. See Apprendi v. New Jer- sey, 530 U.S. 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."). Similarly, Albano admits that the Kansas Supreme Court has repeatedly rejected the argument that the KSGA violates the Sixth and Fourteenth Amendments to the United States Constitu- tion. See State v. Ivory, 273 Kan. 44, 45-48, 41 P.3d 781 (2002). But Albano asserts that the jury trial right under section 5 of the Kansas Constitution Bill of Rights provides greater protection than the jury trial right under the Sixth Amendment to the United States Constitution. "'Section 5 preserves the jury trial right as it historically existed at common law when our state's constitution came into existence.'" Love, 305 Kan. at 734. Seizing on this rule, Albano argues that because the common law required a defendant's criminal history be proven to a jury when the Kansas Constitution came into existence, the KSGA—which allows judicial findings of criminal history—is unconstitutional under section 5. The State points out that the Kansas Supreme Court has determined that the KSGA's use of judicial findings of criminal history does not violate the Sixth Amendment to the United States Con- stitution. The State argues that Albano has cited no authority to support her claim that section 5 of the Kansas Constitution Bill of Rights provides greater protection than the jury trial right in the United States Constitution. Albano's constitutional challenge fails for two reasons. First, there is a lack of authority to support Albano's claim that section 5 provides greater protection—by requiring that a jury determine criminal history—than the federal jury trial right, which does not require a jury to make such findings. Second, Albano's argument fails under a section 5 analysis because there is no indication that a jury was required at common law to determine criminal history when the Kansas Constitution was adopted.

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There is no authority for the proposition that section 5 provides greater protection than the federal jury trial right by requiring a jury to determine criminal history.

Only one prior case has addressed the exact argument of whether the KSGA's judicial findings of criminal history violates section 5 of the Kansas Constitution. In State v. Valentine, No. 119,164, 2019 WL 2306626, at *6 (Kan. App. 2019) (unpublished opinion), rev. denied 310 Kan. 1070 (2019), this court rejected the same section 5 argument Albano makes, finding Valentine did not show that section 5 provides greater protection than the federal jury trial right:

"In view of the Kansas Supreme Court's consistent rejection of the Sixth Amendment-based version of Valentine's current argument, it is incumbent on Valentine to provide authority showing our Supreme Court interprets—or would interpret—§ 5 of the Kansas Constitution Bill of Rights to require jury findings that the Sixth Amendment does not. He fails to do so. 'This court is duty bound to follow Kansas Supreme Court precedent absent some indication that the court is departing from its previous position.' Valentine's argument fails. [Citation omitted.]"

Albano argues that Valentine is wrongly decided because the court did not address why section 5's "inviolate" jury trial right did not extend to the judicial findings of prior convictions. Albano argues that the plain language of section 5 shows that it provides greater protection than the Sixth Amendment because "inviolate means inviolate." Although the Valentine court did not explicitly address the inviolate language, there seems to be general support for its finding. The Sixth Amendment states that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. Const. amend. VI. As Albano points out, the Kansas jury trial right in section 5 states that the right to a jury trial shall be "inviolate." Kan. Const. Bill of Rights, § 5. How- ever, simply because the Kansas jury trial right uses the word "inviolate" does not mean it necessarily provides protection that the Sixth Amendment does not.

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The general rule in Kansas is that the Kansas Constitution is interpreted similarly to its federal counterpart even though the language may differ. See State v. Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164 (2013) ("But, at least for the past half-century, this court has generally adopted the United States Supreme Court's interpretation of corresponding federal constitutional provisions as the meaning of the Kansas Constitution, notwithstanding any textual, historical, or jurisprudential differences."). So even though section 5 contains textual difference from the federal jury trial right, generally it would be interpreted similarly to its federal counterpart and Albano cites no authority to support her claim that section 5 should be interpreted broader than its federal counterpart. In fact, caselaw seems to imply, as explained below, that the Kansas criminal jury trial right in section 5 is equivalent to the federal jury trial right. In 1922, the Kansas Supreme Court held that section 10 of the Kansas Constitution—which recognizes a criminal defendant's right to "speedy public trial by an impartial jury of the county or district in which the offense is alleged to have been committed"—includes the right to a jury trial as established in section 5:

"So far as the right to a jury trial is concerned, as specified in section 10, it is not to be regarded as an extension of that granted in section 5. In the latter section there is an enumeration of a number of the rights that the accused shall have in a prosecution for a public offense, and it includes the right to a jury trial given in the earlier section, to which is added the requirement that the accused shall be given a speedy public trial in the county where the offense was committed." (Emphasis added.) In re Clancy, Petitioner, 112 Kan. 247, 249, 210 P. 487 (1922).

This idea, that section 10 includes the criminal jury trial right as guaranteed in section 5, is implicitly recognized in modern cases as section 5 is cited along with section 10 of the Kansas Constitution whenever criminal jury trial issues are considered. See, e.g., State v. Redick, 307 Kan. 797, 803, 414 P.3d 1207 (2018) (stating that "[t]he Sixth Amendment to the United States Constitution and Sections 5 and 10 of the Kansas Constitution Bill of Rights guarantee a criminal defendant the right to a jury trial" when addressing whether a defendant waived his jury trial right).

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Kansas caselaw has analyzed section 10's jury trial right the same way as the federal jury trial right in the Sixth Amendment of the United States Constitution. See State v. Carr, 300 Kan. 1, 56, 331 P.3d 544 (2014) (analyzing section 10 of the Kansas Consti- tution and stating: "We have not previously analyzed our state constitutional language differently from the federal provision."), rev'd and remanded on other grounds, 577 U.S. ___, 136 S. Ct. 633, 193 L. Ed. 2d 535 (2016). Albano concedes that the Kansas Supreme Court, in accordance with federal precedent, has consistently held that judicial findings of criminal history do not violate the Sixth Amendment. See State v. Sullivan, 307 Kan. 697, 708, 414 P.3d 737 (2018) (reaffirming this position). Thus, since section 10 encompasses section 5's jury trial right and section 10 provides the same protection as the Sixth Amendment, it is a reasonable inference that section 5's jury trial right is also interpreted the same as the Sixth Amendment to the United States Constitution. In sum, Kansas caselaw supports the Valentine court's conclusion that section 5 provides protection similar to, not greater than, the federal jury trial right. In addition, Albano's argument—that the sentencing court's judicial findings of prior convictions under the KSGA violates section 5 of the Kansas Constitution—can be more definitively resolved by applying a section 5 analysis.

The section 5 jury trial right does not prohibit judicial findings of prior criminal history because there was no common law right to have a jury determine criminal history when the Kansas Constitu- tion was adopted.

In considering a section 5 challenge, the court engages in a two part analysis, asking: (1) "In what types of cases is a party entitled to a jury trial as a matter of right?"; and (2) "when such a right exists, what does the right protect?" Love, 305 Kan. at 735. Under the first prong of the analysis, a criminal prosecution is the type of case in which a defendant is entitled to a jury trial as a matter of right. 305 Kan. at 736. But in addressing the second question, the jury trial right in section 5 "'applies no further than to give the right of such trial upon issues of fact so tried at common law.'" 305 Kan. at 735. As shown below, determining a de-

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State v. Albano fendant's criminal history was not a fundamental part of the criminal jury trial right at common law and is thus, not required by section 5. Albano relies on cases cited in Justice Thomas' concurrence in Apprendi, 530 U.S. at 500-01 (Thomas, J., concurring), to establish that at common law, the jury needed to determine prior convictions to impose enhanced sentences. In his concurrence, Justice Thomas advocated for a broader rule than that announced by the majority: that any fact, including a prior conviction, used to increase punishment is an element of the crime that must be proven to a jury. In presenting his concurrence, Justice Thomas cites multiple cases that Albano argues "show[] that, when the Kansas Constitution was enacted, criminal defendants had a common law right to a jury trial on . . . prior conviction findings." Albano specifically relies on two of those cases in her brief to support her contention that the common law required a jury to make criminal history findings. First, Albano relies on Justice Thomas' citation to an excerpt from an 1854 Massachusetts Supreme Judicial Court case, which stated:

"When the statute imposes a higher penalty upon a second and a third conviction, respectively, it makes the prior conviction of a similar offence a part of the description and character of the offence intended to be punished; and therefore the fact of such prior conviction must be charged, as well as proved. It is essential to an indictment, that the facts constituting the offence intended to be punished should be averred. This is required by a rule of the common law, and by our own Declaration of Rights, art. 12." Tuttle v. Commonwealth, 68 Mass. 505, 506 (1854).

But upon closer examination of Tuttle, the case was not necessarily challenging findings of previous criminal history at sentencing. Instead, in Tuttle, the defendant was charged with and convicted of three counts of violating a liquor law but the sentences:

"were passed in the same manner as if there had been three distinct convictions, upon three several indictments; the first charging the defendant with a single act of selling . . . the second charging him with a single act of selling, he having been previously once convicted of a like offence; the third charging him with a single act of selling, he having been twice previously convicted of a like offence." 68 Mass. at 506.

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The Massachusetts Supreme Judicial Court found that the second offense and third offense violation penalties could not be imposed because the defendant was not charged in the indictment with a second and third offense. 68 Mass. at 507. Although the Massachusetts Supreme Court cited the "common law" to support its conclusion, there is no further explanation of what common law rule it is relying on. It appears that the court in Tuttle was relying on a common law rule related to indictments: "It is essential to an indictment, that the facts constituting the offence intended to be punished should be averred. This is required by a rule of the common law." (Emphasis added.) 68 Mass. at 506. Thus, Tuttle provides little support for Albano's argument that there was a common law rule requiring juries to find prior convictions. Second, Albano cites an 1859 case in which the Georgia Su- preme Court held that the trial court erred in instructing the jury that it need not find whether the defendant was previously convicted of another offense when the indictment charged him with unlawfully selling alcohol as a second offense. Hines v. State, 26 Ga. 614, 616 (1859). The Georgia Supreme Court held that the district court erred because whether the defendant was previously convicted of the same offense was a proper question for the jury. 26 Ga. at 616. Notably, the Georgia Supreme Court does not mention that it is relying on a common law principle for its finding, it simply concludes, without further explanation, that such a question was a matter for the jury. Thus, this case also does not establish that there was a common law rule requiring juries to make such determinations. Moreover, to the extent that Albano relies on Justice Thomas' assertion that prior convictions had to be found by a jury at common law, any such rule is not binding precedent as it is in a concurrence and unsupported by the rule announced by the majority, which excepted prior convictions out of the rule requiring juries to finding sentencing facts. See Maryland v. Wilson, 519 U.S. 408, 412, 117 S. Ct. 882, 137 L. Ed. 2d 41 (1997) (stating that statement in concurrence does not constitute binding precedent). Addition- ally, as pointed out by the dissent in Apprendi, and explained above, the cases relied on by Justice Thomas at best

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"might reveal . . . the way American state courts resolved questions regarding the distinction between a crime and its punishment under general rules of criminal pleading or their own state constitutions, [but] the decisions fail to demonstrate any settled understanding with respect to the definition of a crime under the relevant, pre-existing common law." (Emphasis added.) 530 U.S. at 528 (O'Connor, J., dissenting).

The dissent in Apprendi then stated:

"An examination of the decisions cited by Justice THOMAS makes clear that they did not involve a simple application of a long-settled common-law rule that any fact that increases punishment must constitute an offense element. That would have been unlikely, for there does not appear to have been any such common-law rule. The most relevant common-law principles in this area were that an indictment must charge the elements of the relevant offense and must do so with certainty. . . . "Justice THOMAS is correct to note that American courts in the 19th century came to confront this question in their cases, and often treated facts that served to increase punishment as elements of the relevant statutory offenses. To the extent Justice THOMAS' broader rule can be drawn from those decisions, the rule was one of those courts' own invention, and not a previously existing rule that would have been 'codified' by the ratification of the Fifth and Sixth Amend- ments. Few of the decisions cited by Justice THOMAS indicate a reliance on pre-existing common-law principles. [Citations omitted.]" 530 U.S. at 528-29 (O'Connor, J., dissenting).

Albano's proposition that such a common law right existed carries even less weight given the United States Supreme Court's long acceptance of recidivist laws. The United States Supreme Court has continually recognized that allowing a judge to consider prior convictions at sentencing "is a traditional, if not the most traditional, basis for a sentencing court's increasing an offender's sentence." Almendarez-Torres v. United States, 523 U.S. 224, 243, 118 S. Ct. 1219, 140 L. Ed. 2d 350 (1998). In fact, the Court acknowledged that recidivist laws "have a long tradition in this country . . . dat[ing] back to colonial times" and "a charge under a recidivism statute does not state a separate offense, but goes to punishment only." Parke v. Raley, 506 U.S. 20, 26-27, 113 S. Ct. 517, 121 L. Ed. 2d 391 (1992). Thus, there is authority supporting the converse of Albano's proposition: that judges historically could find prior convictions because prior convictions were not a separate offense that needed to be proved to a jury.

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The above authorities suggest that at best there was a historical split on whether prior convictions must be proven to a jury. The two state court cases cited by Albano found that the question of prior convictions was one for the jury while the United States Supreme Court recognized that other states found that it was historically a question for the judge. Neither side definitively identi- fies an established common law rule about who needed to make such findings. Thus, Albano has not supported and cannot support the contention—that there was a common law rule that a jury must find criminal history—that her section 5 challenge depends on. Early in our state's history, the Kansas Supreme Court recognized this split of authority and declined to find that a jury must find prior convictions. In a 1928 case, the Kansas Supreme Court addressed a defendant's challenge to his sentence, which was double the usual sentence for his conviction, under the 1927 habitual offenders' act. State v. Woodman, 127 Kan. 166, 272 P. 132 (1928). The defendant argued that his prior felony conviction should have been charged and proved if he was to be sentenced under the act. The Kansas Supreme Court recognized that "[t]here is a contrariety of judicial opinion as to the necessity for such allegation." 127 Kan. at 172. It then explained:

"Our statute of 1927 does not create a new offense. It merely prescribes a greater penalty for one who is convicted a second time of the commission of a felony and a still greater penalty for one who is convicted of a felony for the third time. To make his defense to a criminal charge all the accused needs to know is the nature of the crime charged against him and the names of the witnesses with whom he will be confronted in a prosecution therefor. In this state it is no concern of the jury what the penalty for a crime may be, and it is just as well that the jurors' minds should not be diverted from the question of defendant's innocence or guilt by facts concerning defendant's prior convictions of other felonies. It is also fairer to defendant to keep such matters entirely away from the jury. After conviction, however, and before the allocution, the defendant should be timely apprised that a sentence under the act of 1927 will be demanded against him, so that he may show cause, if he can, why such higher penalty should not be imposed." (Emphasis added.) 127 Kan. at 172.

While Woodman did not specifically address whether the Kansas Constitution required a jury to determine a defendant's criminal history, a later Kansas case did. In Levell v. Simpson, 142 Kan. 892, 52 P.2d 372 (1935), the defendant challenged his sentence under the habitual offenders' act, arguing that he had a right under the state and

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State v. Albano federal constitutions to have a jury determine whether he had prior convictions. The Kansas Supreme Court definitively stated that "[the defendant] had no such privilege under Kansas law." 142 Kan. at 894. Like Albano, the defendant in Levell cited caselaw from other jurisdictions stating that a jury had to find prior convictions. The Kansas Supreme Court easily discounted those decisions, stating:

"Those [decisions] could only be helpful if the question were new and un- decided in this jurisdiction. Moreover, we find that with scarcely an exception those decisions were based upon statutes which expressly prescribe the procedural method for ascertaining the fact of the prisoner's prior conviction of one or more felonies." 142 Kan. at 894-95.

Our Supreme Court in Levell reiterated that "[i]n this state . . . the punishment for crime is something with which the jury has no concern except under the recent statute providing for capital punishment in homicide cases. The function of a jury is to determine the innocence or guilt of the accused." 142 Kan. at 896. The above collection of authority is fatal to Albano's section 5 argument. These cases establish that (1) historically, there was a split in authority regarding whether a jury must find prior convictions and so there was no common law right to have a jury make such determinations when the Kansas Constitution was adopted, and (2) Kansas' position has always been that, under the state constitution, a defendant does not have a right to have a jury determine prior convictions for sentencing purposes. Section 5's jury trial right "'applies no further than to give the right of such trial upon issues of fact so tried at common law.'" Love, 305 Kan. at 735. Because Albano has not shown that there is a common law right to have a jury determine criminal history, section 5 does not prohibit the KSGA's use of judicial findings of criminal history.

Affirmed.

VOL. 58 COURT OF APPEALS OF KANSAS 135

State v. R.W.

___

No. 120,854

STATE OF KANSAS, Appellant, v. R.W., Appellee.

___

SYLLABUS BY THE COURT

1. CONSTITUTIONAL LAW—Right against Self-Incrimination—Constitu- tional and Statutory Right. The Fifth Amendment to the United States Con- stitution protects an individual's right against self-incrimination. This right is extended to the states through the Fourteenth Amendment. The Kansas Legislature has codified the right against self-incrimination in K.S.A. 60- 460(f).

2. SAME—Right against Self-Incrimination—Burden on State to Prove State- ments are Voluntary. The touchstone consideration in cases involving issues of self-incrimination is voluntariness. The burden is on the State to prove— by a preponderance of the evidence—that confessions or inculpatory statements made to law enforcement officers are voluntary.

3. CRIMINAL LAW—Determination Whether Statements are Voluntary— Totality of Circumstances. Courts look at the totality of the circumstances on a case-by-case basis to determine whether impermissible coercion was present and whether that coercion overbore the defendant's free and independent will. Impermissible coercion can be either mental or physical.

4. SAME—Determination Whether Statements are Voluntary—Nonexclusive Factors. Generally, courts determine whether confessions or inculpatory statements made to law enforcement officers are voluntary by looking to the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interview; (3) the accused's ability to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the officer's fairness in conducting the interview; and (6) the accused's fluency with the English language.

5. SAME—Validity of Confession or Statement of Juvenile—Considerations. When the accused is a juvenile, courts must exercise the greatest care and heightened sensitivity in assessing the validity of a confession or inculpatory statement made to law enforcement officers. In cases involving the custodial interrogation of juveniles and if legal counsel is not present, courts not only must make sure that a confession or inculpatory statement was not coerced but also that it was not the product of ignorance of rights or of adolescent fantasy, fright, or despair.

6. SAME—Voluntariness of Juvenile's Confession—Factors. In assessing the voluntariness of a juvenile's confession or inculpatory statements, courts are to consider five additional nonexclusive factors: (1) the juvenile's age; (2)

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State v. R.W.

the length of questioning; (3) the juvenile's education; (4) the juvenile's prior experience with law enforcement officers; and (5) the juvenile's mental state.

7. SAME—Custodial Interrogation of Juvenile. Statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of a custodial interrogation have the potential to render a confession or inculpatory statement involuntary.

8. SAME—Custodial Interrogation—Risk of Isolation to Juvenile. Even for an adult, physical and psychological isolation during a custodial interrogation can undermine an individual's will to resist and compel a person to speak when they would not otherwise do so freely. The risk of such isolation is even more troubling when the subject of the interrogation is a juvenile.

Appeal from Douglas District Court; PAULA B. MARTIN, judge. Opinion filed April 10, 2020. Affirmed.

Kate Duncan Butler, assistant district attorney, Charles E. Branson, district attorney, and Derek Schmidt, attorney general, for appellant.

Branden Smith, of Smith Legal, L.L.C., of Lawrence, for appellee.

Before STANDRIDGE, P.J., LEBEN and BRUNS, JJ.

BRUNS, J.: R.W.—who was a juvenile at the time—was in- terrogated for several hours at a police facility in Lawrence after being picked up from his high school by two police officers. Sev- eral months later, the State charged R.W. with multiple criminal counts including rape, aggravated battery, and other offenses. The district court certified him for trial as an adult. Prior to trial, the district court granted R.W.'s motion to suppress the statements he made during the interrogation because they were not voluntarily made. The State then filed this interlocutory appeal claiming that the district court erred in suppressing R.W.'s statements. After reviewing the record, we find no error. Thus, we affirm the district court's suppression order.

FACTS

In April 2017, R.W. was a 17-year-old junior at Free State High School. Although he was unaware of it at the time, R.W. was the subject of a rape investigation by the Lawrence Police Depart- ment based largely on allegations made by his former girlfriend. On the afternoon of April 25, a School Resource Officer (SRO)— who R.W. considered to be a mentor and a friend—introduced him

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State v. R.W. to two Lawrence Police Officers, Lindsay Bishop and Joshua Leit- ner. Officers Bishop and Leitner were both wearing police vests with holstered guns. The two officers presented themselves to R.W. by their first names—Lindsay and Josh—before briefly explaining:

"We are, um, juvenile investigators, so we're just like a special kind of police officer that, it's our job to talk to kids, primarily. [W]e deal with stuff usually that sometimes happens at school but sometimes, like, out in the community. So, kind of like [the School Resource Officers], but have a little bit different job."

Officers Bishop and Leitner did not tell R.W. why they wanted to meet with him other than saying that they wanted to talk to him "about some stuff that occurred." Although the officers told R.W. that he was not under arrest, they did not tell him that he was the subject of a criminal investigation. Officer Bishop then requested that R.W. go with them in what she called a "super-secret," unmarked patrol vehicle to a police facility known as the Investigations and Training Center. She told R.W. that they would bring him back to school "when we're done talking." R.W. agreed to go with the officers, and the SRO escorted him to the patrol vehicle. The SRO officer did not go with them to the police facility, and the police officers did not offer R.W. an opportunity to call his mother to tell her where he was going. While in the patrol vehicle, R.W. told Officers Bishop and Leitner about his relationship with the SRO who had introduced them. He described the SRO as a "really nice guy" and a "nice mentor" whose son had recently died. R.W. then explained how he had bonded with the SRO since he had also recently lost his father. After expressing sympathy for the death of his father, Officer Bishop again told R.W. that her job is "kind of like [an SRO], where we work with kids, but we . . . are not assigned to a school or anything." In addition, the officer told R.W. that she and Officer Leitner "just kind of talk to, um, kids when they are, like, the victim of a crime or when stuff like that is going on." She added, "instead of like a mentory role, we kinda do more, I don't know, other kinds of investigations." Officer Leitner further explained that "a lot of times, the . . . guys in the schools, they don't have as much time to devote to longer-term . . . type of incidents with kids or crises that they're

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State v. R.W. going through." Instead, the officer explained that such circumstances fall to them when there is "something going on that . . . needs . . . closer attention." Still, the officers did not reveal why they wanted to talk to R.W. nor did they inform him that he was the subject of a criminal investigation. During the rest of the drive, the officers talked casually with R.W. about his professional interests. At the police facility, R.W. was left alone in the interrogation room for several minutes. While he was waiting, R.W. took several deep breaths and nervously picked at his fingers. When Of- ficers Bishop and Leitner returned to the room, they talked to R.W. about being in high school and joked with him about the food served at a local restaurant where he had a part-time job. About 20 minutes after first meeting R.W. at the high school, Of- ficer Bishop indicated that they wanted to "ask [him] some questions." Officer Bishop then told R.W., "because you're here and because I drove you, um, and you're in the police station and it's like a locked facility and stuff like that, I am going to read you your Miranda rights, just like on TV, but you're not under arrest or anything like that." She also told him that he could leave or "stop answering questions at any time." Officer Bishop added—while laughing—that the officers could take him "home or wherever . . . in Lawrence. I'm not going to take you to, like, Disney World." Before reading R.W. his Miranda rights from a laminated card, Officer Bishop casually added, "let me . . . read this thing . . . it's like, you know, a formality." R.W.—a juvenile alone with two police officers in an interrogation room of a locked police facility and unaware of the purpose of their conversation—agreed to speak with Officers Bishop and Leitner. After he had done so, Officer Bishop told R.W. for the first time that she wanted to talk to him about his relationship with his former girlfriend. Before continuing, Officer Bishop again compared her role to that of an SRO but distinguished her job by telling R.W. that she focuses on things occurring outside of school. Officer Bishop then began asking R.W. to talk about his relationship with his former girlfriend. Even then, there was no mention of a criminal investigation or the allegations made by his former

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State v. R.W. girlfriend. R.W. explained that he and his former girlfriend began a romantic relationship in March 2015 that lasted until August 2016. He explained that things went well for a while before hitting "a rough spot" because of their mothers not getting along. Both R.W. and his former girlfriend had lost their fathers. According to the record, R.W. had found his father's body after a car fell on top of him a little over a year before the relationship with his former girlfriend started. R.W. told the officers that the conflict with his former girlfriend was hard for him because he was still "emo- tionally unstable" after the death of his father. He explained that the relationship between he and his former girlfriend became "toxic" before it finally ended. Officers Bishop and Leitner offered reassurance to R.W. while he told his story. The officers told R.W. that they did not think he was "a bad person" and stated that they realized jealousy is a significant issue "when you're 15 . . . and you're new in a relationship." Officer Leitner added, "we're just trying to understand." R.W. then told the officers that his former girlfriend did not trust him because he had lied, insinuating potential drug or alcohol use with his friends. Again, the officers were quick to reassure R.W. that they were "not here to get you in trouble for anything like that" and offered their own examples of problems they had caused as teenagers. Officer Leitner told R.W., "when you're a teenager you . . . do goofy things like that." Officer Bishop refocused the conversation by telling R.W., "we're just trying to kind of understand what your guys' relationship was like and maybe some of the issues that you had." Yet, she still did not tell R.W. that he was being investigated in a criminal matter. Officer Leitner then asked R.W. if any of his arguments with his former girlfriend had become physical. In response, R.W. acknowledged that he did "get out of control" a few times during the relationship and admitted to grabbing her arm. In response, Officer Leitner told R.W. that his behavior was "kind of normal for a kid that's 15, 16 years old" and that "part of the growing process is learning how to, like, control your frustration, control your anger and communicate effectively." The officers then asked R.W. for more details about any arguments during his relationship with his former girlfriend that may have gotten out of control. After several minutes, Officer Bishop

140 COURT OF APPEALS OF KANSAS VOL. 58

State v. R.W. pressed R.W. about a specific incident at school in which he allegedly pushed his former girlfriend off a chair. The incident would later be the basis for an aggravated battery charge brought against R.W. Although he denied that he had pushed her off a chair, the officers continued to question R.W. on the subject. After nearly 10 minutes of denials and being pressed for an additional explanation, R.W. told the officers that his former girlfriend would "lie about a lot of things." At that point, about 40 minutes into the interrogation, R.W. told the officers that it was possible that his former girlfriend might claim that he had raped her. Indeed, the officers were acutely aware of this allegation since they had interviewed R.W.'s former girlfriend a month earlier. R.W. then explained in general terms how he had manipulated his former girlfriend into having sex. In response, Officer Bishop reassuringly told R.W., "thank you for sharing that with us and talking about this, and we'll figure it out together, okay?" When asked to describe his first sexual encounter with his former girlfriend, R.W. struggled to remember the details. At that point, Officer Leitner whispered to R.W., "It's okay to be honest. It's okay. . . . I want to say, we've heard everything before. You know what I mean." R.W. then began nervously sharing intimate details of his first sexual encounter with his former girlfriend. When asked whether he ever continued to have sex with her after being told to stop, R.W. initially denied having done so. But when pressed again by Officer Leitner, he admitted that she had told him to stop. Officer Bishop then told R.W. to take a big breath, and Officer Leitner added, "it's going to be okay." After asking if R.W. felt better, Officer Bishop went on to tell R.W.:

"So, [R.W.], what I think is . . . that you are a really smart, articulate young man who has a super bright future; and I think you have been through a lot in your short life. I think you've been through more than any of us should ever have to go through with witnessing trauma and having, um, . . . a family destroyed, um, and then having a complicated relationship with a [former] girlfriend and her mom being controlling. Um, and I think you've been through more than, than anybody really ever should, but, more in your, and these are pivotal developmental years. "Um, and I think that you had some anger and some frustration, and you're trying to figure out how to control that and how to deal with that and how to

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State v. R.W. move forward and how to figure out who you are and what your priorities are and what your morals are and all those kind of things. "And I don't think that you're a bad kid and [Officer Leitner] doesn't think you're a bad kid. And we think you're just trying to figure out who you are and what you're about, okay? "And I know from doing this for years and years and years that sometimes when you hold in a secret like that, like I could just see you, um, you know, just so stressed, and, um, that it feels better just to come clean and to come to terms, . . . and to own what we did, and be honest about what we did, so that we can heal and move forward and, and so that [your former girlfriend] can heal and move forward. Okay? "And I want to go through this process, and I want to make sure that, that we understand and we get out everything on the table today that we need to talk about so that you can heal and clear your conscience and say, you know what, I'm going to leave all of that that I've been holding inside here, I'm going to leave it right here. "I'm going to walk away from that, and I'm going to move forward, and I'm going to have a successful future, um, and [your former girlfriend]'s going to heal, and she's going to be able to move past this and, and move on with her life, too."

Immediately after Officer Bishop said this, Officer Leitner also reassured R.W., saying:

"Nobody expects you to be perfect. Right? [Your former girlfriend]'s not perfect, you're not perfect. I'm not perfect. That's okay. "You know, that's part of growing up, is making mistakes and figuring out, you know, what you did wrong and figuring out how to handle something that you [did] wrong, so that you can grow as a person. "And, and obviously we . . . don't want to make mistakes again. The only way we can do that is by learning from them, alright? And that's as much a part of this process as everything. Alright? That's okay. That's . . . what being a teenager's all about is growing and learning. Alright? Okay."

At this point, the officers had still not told R.W. that he was the subject of a criminal investigation. Instead, Officer Bishop and Officer Leitner told him that what had happened between he and his former girlfriend was part of "being a teenager" and "growing up." They also told him that they just wanted to "understand" the nature of the relationship so that R.W. could "clear his conscience," "heal," "leave it all there," "walk away," "move forward," and "have a successful future." After hearing repeated reassurances for nearly 70 minutes, R.W. began to make additional inculpatory statements to the officers.

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State v. R.W.

After more than three hours of questioning, R.W. was asked by Officer Bishop what he thought should happen next. Echoing the reassurances given to him by the officers, R.W. said that he "would like to be able to move past this." Then, Officer Leitner asked R.W. if he thought there should be legal punishment for what he did to his former girlfriend. R.W. responded that he "hope[d] not" and did not know what would be appropriate. Officer Bishop interjected that she "want[ed] to be on front street" and told R.W. that she was going to submit a report to the District Attorney's Office for prosecution. For the first time—after nearly four hours alone with the officers—Officer Bishop suggested that "we do kinda need to tell your mom what's going on." In response, R.W. said that his mother was "probably wondering why I'm not home by now." A few minutes later, Officer Bishop asked R.W. whether he had any questions. Expressing concern, R.W. asked the officers what the "worst case scenario" might be and he was told that he could face prosecution as an adult as well as imprisonment for the crime of rape. The officers then asked R.W. whether he felt "suicidal" and noted his prior mental health issues—which they had evidently learned from previous witness interviews. Although R.W. denied having suicidal feelings, the officers offered to drive him to the hospital if he ever had a mental health crisis in the future. At that point, the officers briefly left the interrogation room. After they did so, R.W. dropped his head and took several deep breaths. A short time later, the officers returned and took R.W. home. On August 28, 2018, the State charged R.W.—who had been certified to be tried as an adult—with multiple counts of rape as well as several other criminal offenses. Prior to trial, R.W. moved to suppress the statements he had made to Officers Bishop and Leitner during his interrogation. The district court held an evidentiary hearing on the motion. In addition to hearing the testimony of Officer Bishop and listening to the argument of counsel, the district court judge noted that she had reviewed the video of the interrogation multiple times. On January 30, 2019, the district court entered a nine-page memorandum decision in which it granted R.W.'s motion to suppress. In doing so, the district court set forth findings of fact—

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State v. R.W. describing the recordings of the interrogation in detail—and conclusions of law. Ultimately, the district court concluded "that based on the totality of these circumstances, the statements made by [R.W.] were not the product of a free and independent will. The promises, benefits, and reassurances made by the officers resulted in defendant's will being overborne." Thereafter, the State filed this interlocutory appeal pursuant to K.S.A. 2019 Supp. 22-3603.

ANALYSIS

On appeal, the State argues that "the cordial tone of the interview did not render [R.W.'s] Miranda waiver involuntary, and the officers did not coerce or trick him into confessing. In short, the district court should not have suppressed his statements, and the State respectfully requests this court reverse that decision." In response, R.W. argues that the district court appropriately found that "[t]he totality of the circumstances demonstrates [his] statements are not voluntary, nor are they free from coercion or suggestion." Our review of a district court's decision on a motion to suppress evidence is bifurcated. We review the factual underpinnings of the decision to determine whether they are supported by substantial competent evidence while our review of the ultimate legal conclusion drawn from those facts is de novo. State v. Lowery, 308 Kan. 359, 364, 420 P.3d 456 (2018). Substantial competent evidence is evidence that a reasonable person could accept as adequate to support a conclusion. In determining whether the district court's findings of fact are supported by substantial competent evidence, we do not reweigh the evidence, assess the credibility of witnesses, or resolve evidentiary conflicts. State v. Boggess, 308 Kan. 821, 825, 425 P.3d 324 (2018). The Fifth Amendment to the United States Constitution protects an individual's right against self-incrimination. Moreover, this right is extended to the states through the Fourteenth Amend- ment. Chavez v. Martinez, 538 U.S. 760, 766, 123 S. Ct. 1994, 155 L. Ed. 2d 984 (2003); Malloy v. Hogan, 378 U.S. 1, 6-11, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964). The Kansas Legislature has codified the right against self-incrimination in K.S.A. 2019 Supp. 60-460(f). See State v. Guein, 309 Kan. 1245, 1261-62, 444 P.3d

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State v. R.W.

340 (2019). A confession is coerced—and inadmissible at trial— when a defendant's "will was overborne." Yarborough v. Al- varado, 541 U.S. 652, 667-78, 124 S. Ct. 2140, 158 L. Ed. 2d 938 (2004); see also Schneckloth v. Bustamonte, 412 U.S. 218, 225- 26, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The touchstone consideration in cases such as this is voluntariness. State v. Palacio, 309 Kan. 1075, 1087, 442 P.3d 466 (2019). The burden is on the State to prove that confessions or inculpatory statements made to law enforcement officers are voluntary. In determining whether a defendant's statements are voluntary, we look at the totality of the circumstances. State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013). "The essential inquiry is whether the statement was the product of the free and independent will of the accused." State v. Groschang, 272 Kan. 652, 662, 36 P.3d 231 (2001). When a defendant claims that a law enforcement officer used coercion to obtain incriminating statements, the State bears the burden to prove—by a preponderance of the evidence—that the defendant made the statements voluntarily. State v. Garcia, 297 Kan. 182, 188, 301 P.3d 658 (2013). Kansas courts employ a case- by-case evaluation to determine whether impermissible coercion was present and whether that coercion overbore the defendant's free and independent will. Guein, 309 Kan. at 1260. Impermissi- ble coercion can be either mental or physical. State v. Stone, 291 Kan. 13, 21, 237 P.3d 1229 (2010). Generally, courts determine whether a confession or statement made to law enforcement officers was voluntary by looking to the totality of the circumstances, aided by the following nonexclusive factors: (1) the accused's mental condition; (2) the manner and duration of the interview; (3) the accused's ability to communicate on request with the outside world; (4) the accused's age, intellect, and background; (5) the officer's fairness in conducting the interview; and (6) the accused's fluency with the English language. State v. Gilliland, 294 Kan. 519, Syl. ¶ 3, 276 P.3d 165 (2012). In addition, when—as here—the accused is a juvenile, courts must exercise "'the greatest care'" in assessing the validity of a confession or statement made to a law enforcement officer. State

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State v. R.W. v. Mays, 277 Kan. 359, 373, 85 P.3d 1208 (2004). In cases involving the interrogation of juveniles and counsel is not present, courts must exercise great care "'to assure that the admission was voluntary, in the sense not only that it was not coerced or suggested, but also that it was not the product of ignorance of rights or of adolescent fantasy, fright or despair.'" State v. Donesay, 265 Kan. 60, 69, 959 P.2d 862 (1998) (quoting In re Gault, 387 U.S. 1, 55, 87 S. Ct. 1428, 18 L. Ed. 2d 527 [1967]); see also State v. Gibson, 299 Kan. 207, 215, 322 P.3d 389 (2014) ("A juvenile's inculpatory statement must be voluntary and free from coercion or suggestion and must not be the product of ignorance of rights or adolescent fantasy, fright, or despair."). Accordingly, when assessing the voluntariness of a juvenile's confession or inculpatory statements, Kansas courts have articulated five additional nonexclusive factors for consideration. State v. Young, 220 Kan. 541, 546-48, 552 P.2d 905 (1976). These factors include: (1) the juvenile's age; (2) the length of questioning; (3) the juvenile's education; (4) the juvenile's prior experience with law enforcement officers; and (5) the juvenile's mental state. 220 Kan. at 546-48. "Clearly, there is overlap among the factors articulated in a case involving a juvenile and those usually considered when the voluntariness of a defendant's statement to [law enforcement officers] is at issue; but just as clearly, our caselaw recognizes a heightened sensitivity when the accused is a juvenile." Gibson, 299 Kan. at 215. Under our standard of review, we first examine the record on appeal to determine if it is competent and substantial enough to support the district court's findings of fact. Here, there are recordings that tell us exactly what was said by the officers as well as what was said by R.W. This evidence includes both an audio recording of R.W.'s brief trip with the officers to the police station and a video recording of R.W.'s interrogation. Although the State may disagree with the district court's interpretation of the evidence, we conclude that substantial competent evidence supports the district court's factual findings set forth in a comprehensive nine-page, single spaced, memorandum decision. We also find the district court applied the correct legal analysis in this case. Specifically, the district court looked to the general

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State v. R.W. factors set forth in Gilliland, 294 Kan. 519, Syl. ¶ 3, as well as the additional factors for juveniles set forth in Young, 220 Kan. at 546- 48. In applying these factors, the district court found:

"[R.W.] was seventeen (17) years old and a junior in high school. He had no prior experience with law enforcement except the SROs at school, with whom had a good relationship and who he saw as a mentor. Although they are police officers, their role in the school is very different from the role of juvenile investigators. They are there to help the kids in a non-adversarial role, to build positive relationships and serve as mentors. [R.W.] knew [the] SRO . . . and considered him a good guy and a mentor. They bonded over the death of loved ones, [R.W.] having lost his father and [the SRO] his son. [The SRO] also helped [R.W.]'s brother through 'some stuff.' "When Officer Bishop and Officer Leitner arrived at Free State High School, unannounced, they contacted [R.W.] with the help of [the SRO]. They introduce themselves not as Officer Bishop and Officer Leitner but only by their first names. They tell [R.W.] their job is 'kind of like [the SRO's].' They tell him they 'talk' to kids when they are 'victims of a crime or when stuff like that is going on.' While that may be part of their duties it is certainly not why they want to talk to [R.W.]. "[R.W.] agreed to go to the ITC to talk with them, although he is not told he has an option. At the ITC, [R.W.] still has not been told why they want to talk to him, only according to Officer Bishop, that she wants to ask him some questions. The interview is lengthy—four (4) hours. [R.W.]'s mental condition or state left him vulnerable. He told this to the officers and they sympathized with him telling him he 'had been through a lot in his short life . . . [M]ore than any of us should have to go through with witnessing trauma and having a family destroyed . . . [.'] They had been told [R.W.] was sad and depressed and had been hospitalized for mental health issues. From the onset, he told them he was 'emo- tionally fragile' and was 'going through a lot.' He was not given the option of having a parent present or given the opportunity to call his mom."

The district court further found:

"Still not knowing why they want to talk with him, [R.W.] waived his rights. Up until [R.W.] says that [his former girlfriend] tells lies and is telling people he raped her, everything is chatty, chummy. They refer to their talk with [R.W.] as a 'conversation.' He is told they just want to understand what your guys' relationship was like. [R.W.] has been given no reason to think this is different from his conversations with [the SRO]. They help kids. They want to understand him. He is not told they are investigating a crime. He is not told he is a suspect in a crime. In fact, he is never told why they want to talk to him. It's almost like a therapy session. They lead him to believe that they are there to make things better, to understand and to help him. "The level of the officers' omissions about their purpose is illustrated when, after about fifty three (53) minutes, [R.W.] says: 'I don't know if you're aware but one of the big ones [lies] is the possibility that I'd been raping her.' So they

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State v. R.W. encourage him to just tell them about that, still not knowing that this is the subject of their investigation or even that it is an investigation.

"[R.W.] continues to talk a bit more about the relationship with [his former girlfriend]. When he hesitates Officer Bishop tells him to take a big breath. Of- ficer Leitner tells him 'it's going to be okay.' Then comes Officer Bishop's big speech which is set out in full [above], and Officer Leitner's affirmation that [R.W.] just needs to learn from his mistakes; that's 'as much a part of this process as everything.' It's okay. 'That's what being a teenager's all about is growing and learning.' [R.W.] has now been reassured by both officers that nothing will happen if he 'gets it all out.' He can leave it all there. He can walk away and move forward and have a successful future. The interrogation continues and [R.W.] makes further incriminating statements."

The record reflects that R.W. and the SRO bonded during a vulnerable period of mutual grief after the death of R.W.'s father and the death of the SRO's son. Prior to the interrogation, R.W.'s only experience with law enforcement was with the SRO, with whom he had a "mentor" relationship. Nothing in the record suggests that R.W. had ever had an adversarial interaction with a law enforcement officer or had previously been involved in a criminal investigation. As the district court appropriately noted, R.W.'s experience with law enforcement officers was based on emotional support, vulnerability, and trust. The record confirms that Officers Bishop and Leitner introduced themselves to R.W. using their first names rather than using their professional titles. This informality had the potential to confuse the roles of the SRO and the investigating officers. This confusion was amplified by the repeated comparisons drawn by Of- ficers Bishop and Leitner between their roles and the SRO's role. In particular, the officers repeatedly represented to R.W. that their job was much like the SRO's position and that their primary role was also to "talk to kids." Indeed, the only significant distinction that Officers Bishop and Leitner provided was that—unlike an SRO that focuses on school issues—they focus on things that happen "out in the community." We note that Officer Bishop did tell R.W. that her role was less "mentory" than the role of the SRO and she did "other kinds of investigations." Still, neither she nor Officer Leitner told R.W. that they were performing a criminal investigation or talking to him for that reason. Instead, as the district court accurately pointed

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State v. R.W. out, Officer Bishop went so far as to tell R.W. that they talk to kids who are "victims" of crimes. Likewise, Officer Leitner bol- stered the potential for confusion by adding that he and Officer Bishop work with kids on "longer-term" incidents and "crises that they're going through." We agree with the district court that the statements made by Officers Bishop and Leitner had the significant potential to confuse a juvenile about the purpose and the gravity of his "talk" with the officers. We also agree with the district court that "the fairness of the officers conducting the interrogation, is the crucial factor in this case." In this regard, the district court paid particular attention to the frequent reassurances that Officers Bishop and Leitner offered to R.W. throughout the four hours that they spent with him. The district court also expressed concern that the officers conducted much of the interrogation like a "therapy session" instead of a criminal investigation. The district court's concern is reasonable in light of the following statement made by Officer Leitner to R.W. during the interrogation:

"I don't think you're a bad kid. I really don't. Alright? But I also, like [Officer Bishop] was explaining earlier, you know, I think you're a kid who's growing up. I think you're a kid who's maybe done some things that you regret. And I think you're a kid who's maybe made some bad choices. And I think there is every kid out there who's 17 years old, has probably made bad choices. Right? So, I'm not saying you're a bad kid because you made bad choices. "But, at the same time, we can't move on, and learn, and grow from our bad choices until we come to terms with what really happened. And until we come to terms with things that we're not proud of, and things that might have hurt somebody. Right? "And they can't move on, sometimes, until that whole thing, you know, comes out, and is realized, and, and there is a discussion about it. I mean, and that's why counseling works. You know what I mean, because we've got to talk about things sometimes for them to make sense in our heads. "So, part of what we're doing here is, is, maybe we're kind of de facto coun- selors today. Right, and that's part of what we're doing is trying to just work through what happened. Alright?" (Emphasis added.)

As the district court noted, Officers Bishop and Leitner repeatedly made statements that suggested that R.W.'s behavior was normal for a person his age and insisted that they were "just trying to understand." For instance, the officers empathized that jealousy was difficult, particularly for a teenager who was new to romantic relationships. When R.W. hinted at possible drug use, the officers

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State v. R.W. insisted that it was a normal, "goofy," teenage behavior. Even when R.W. admitted that he grabbed his former girlfriend's arm during arguments, the officers reassured him that his behavior was "kind of normal for a kid that's 15, 16 years old," emphasizing that "part of the growing process" was working on "expressing [himself] a little bit better." When the conversation shifted to the sexual nature of R.W.'s relationship with his former girlfriend, his demeanor changed, and he stopped speaking. In response, Officers Bishop and Leitner made a series of reassurances to R.W. that the district court found could have easily misled him into believing that the stakes in his continuing to talk with the officers were low. Like the district court, we find the following statement made by Officer Bishop to R.W. to be particularly problematic:

"And I want to go through this process, and I want to make sure that, that we understand and we get out everything on the table today that we need to talk about so that you can heal and clear your conscience and say, you know what, I'm going to leave all of that that I've been holding inside here, I'm going to leave it right here. "I'm going to walk away from that, and I'm going to move forward, and I'm going to have a successful future, um, and [your former girlfriend]'s going to heal, and she's going to be able to move past this and, and move on with her life, too."

To a juvenile—especially one whose only experience with a law enforcement officer prior to the interrogation had been a relationship much like that of a guidance or grief counselor—these types of reassurances are at best misleading. The misleading nature of such statements is even more significant when viewed considering the comparisons between the SRO's role and that of Of- ficers Bishop and Leitner. Although the officers may have had good intentions, statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of an interrogation have the potential to render a confession involuntary. As the district court also highlighted, the potential for confusion was exacerbated by the fact that the officers did not disclose the true purpose of their "talk" with R.W.—which was to discuss the potential for legal liability for the crime of rape—until several hours after the interrogation began. In addition, like the district

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State v. R.W. court, we also find the length of the interrogation to be significant. We note that our court has previously found an interrogation last- ing less time than the one in this case to be a "lengthy interrogation" that can tip the scales in favor of the accused. See State v. Bowlin, 43 Kan. App. 2d 671, 690-91, 229 P.3d 402 (2010). It is important to recognize that "[e]ven for an adult, the physical and psychological isolation of custodial interrogation can 'undermine the individual's will to resist and . . . compel him to speak where he would not otherwise do so freely.'" J.D.B. v. North Car- olina, 564 U.S. 261, 269, 131 S. Ct. 2394, 180 L. Ed. 2d 310 (2011). The risk of isolation "is all the more troubling . . . when the subject of custodial interrogation is a juvenile." 564 U.S. at 269. Of course, we recognize that the law does not require juveniles older than 14 the opportunity to have a parent present during a criminal interrogation. In re B.M.B., 264 Kan. 417, 432, 955 P.2d 1302 (1998). Nevertheless, we do not find that it was error for the district court to take R.W.'s isolation into consideration under the circumstances presented in this case. This is particularly significant where a juvenile who lacks experience with the criminal justice system and has lost his father is concerned that his mother is "probably wondering" why he has not come home from school. A review of the interrogation video shows R.W. hesitating, asking for water, and nervously picking at his nails at several points. Similarly, R.W. is observed on the video taking deep breaths and hanging his head when left alone at the various times during the interrogation. Ultimately, at the end of the interrogation, Officers Bishop and Leitner ask R.W. whether he had any suicidal ideations and noted his prior mental health status before finally taking him home. We agree with the district court that R.W.'s mental state likely "left him vulnerable" given the proximity between the death of R.W.'s father and the start of R.W.'s relationship with his former girlfriend. In addition, as the district court noted, R.W. expressed concerns about "emotional instability" during the relationship which he specifically attributed to the loss of his dad. The record also reveals that Officers Bishop and Leitner expressed empathy for R.W.'s loss and reassured him that they understood the "trauma" of "having [his] family destroyed" was more than anybody should have to deal with in their "pivotal developmental

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State v. R.W. years." We find that discussions of this nature about a juvenile's current or prior mental health issues have the potential to suggest mental vulnerability and, therefore, a higher potential for coercion. As indicated above, the test for suppression is fact-driven and based on a consideration of the "totality of the circumstances." State v. Randolph, 297 Kan. 320, 326, 301 P.3d 300 (2013). Fur- thermore, we are to exercise "'the greatest care'" or "heightened sensitivity" when assessing whether a juvenile's confession is voluntary. Mays, 277 Kan. at 373; Gibson, 299 Kan. at 215. We recognize that reasonable people could weigh the factors differently. However, even if it is assumed that the Miranda warning was properly given to R.W., we find that the totality of the circumstances suggest that his confession was not the product of a free and independent will. For these reasons, we affirm the district court's decision to suppress the statements made by R.W. during the interrogation.

Affirmed.

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Stormont-Vail Healthcare v. Sievers

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No. 121,109

STORMONT-VAIL HEALTHCARE, INC., Appellee, v. HAROLD E. SIEVERS, Appellant.

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SYLLABUS BY THE COURT

1. GARNISHMENTS—Nonwage Garnishment. K.S.A. 61-3505 controls nonwage garnishments.

2. STATUTES—Interpretation—Appellate Review. The interpretation of a statute is a question of law over which this court has unlimited review.

3. SAME—Construction—Legislative Intent. When a statute is plain and unambiguous, this court need not speculate about the legislative intent behind that clear language and will refrain from reading something into the statute that is not readily found in its words.

4. GARNISHMENT—Burden on Judgment Debtor to Prove Exemption. The judgment debtor has the burden to show some or all of the subject property is exempt from garnishment.

5. SAME—Wages Not Identified as Earnings under Statute. Once wages are deposited into a bank account, they lose their identity as "earnings" as defined under K.S.A. 2019 Supp. 60-2310(a)(1).

Appeal from Shawnee District Court; TIM KECK, judge pro tem. Opinion filed April 10, 2020. Affirmed.

Paul Shipp, of Kansas Legal Services, of Manhattan, and Lowell C. Paul, of the same firm, of Topeka, for appellant.

Stephanie B. Poyer, of Butler & Associates, P.A., of Topeka, for appellee.

Before SCHROEDER, P.J., MALONE and STANDRIDGE, JJ.

SCHROEDER, J.: After Stormont-Vail Healthcare, Inc. (SVH) obtained a consent judgment against Harold E. Sievers, SVH requested orders of garnishment to collect the judgment. Sievers objected to the garnishment order that attached to his property held by Capitol Federal Savings Bank (CFS), arguing the funds in his bank account were earnings exempt from attachment under K.S.A. 61-3505. The district court overruled Sievers' objection after an evidentiary hearing. Upon review of the record, we find the

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Stormont-Vail Healthcare v. Sievers district court correctly determined the funds in Sievers' bank account were not exempt from attachment under K.S.A. 61-3505. We affirm.

FACTS

SVH obtained a consent judgment against Sievers for unpaid medical expenses in the amount of $3,008.09 plus $599.94 in interest. At the hearing, Sievers agreed he owed the debt. He declined to set up a payment plan with SVH and asked SVH to "garnish to the legal amount." After obtaining the judgment, SVH filed two requests for orders of garnishment: one to attach to Sievers' earnings held by his employer, the State of Kansas, and one to attach Sievers' other property, if any, held by CFS. The nonwage garnishment order attached $707.01 from Sievers' bank account at CFS. Sievers timely objected to the garnishment order directed to CFS, arguing the funds in his bank account were exempt from attachment through a nonwage garnishment because the funds met the definition of "earnings" under K.S.A. 2019 Supp. 60- 2310(a)(1). Relying on our decision in Dillon Companies v. Davis, 39 Kan. App. 2d 444, 447, 181 P.3d 570, rev. denied 286 Kan. 1177 (2008), the district court overruled Sievers' objection to the garnishment order, finding: "[O]nce Mr. Sievers'[] paycheck was deposited into his bank account, his wages lost their status as 'earnings,' and became garnishable under K.S.A. 61-3505." Sievers timely appeals.

ANALYSIS

In his only issue on appeal, Sievers argues the district court erred by concluding the wages he earned lost their status as "earnings" once they were deposited into his bank account and became garnishable under K.S.A. 61-3505. This issue presents a question of statutory interpretation, which is a question of law over which we have unlimited review. See Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). The most fundamental rule of statutory construction is the intent of the Legislature governs if that intent can be ascertained. State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367

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Stormont-Vail Healthcare v. Sievers

P.3d 282 (2016). We must first attempt to ascertain "legislative intent through the statutory language, giving common words their ordinary meanings." Nauheim, 309 Kan. at 149. When a statute is plain and unambiguous, we need not speculate about the legislative intent behind that clear language and will refrain from reading something into the statute that is not readily found in its words. See Ullery v. Othick, 304 Kan. 405, 409, 372 P.3d 1135 (2016). We must not consider isolated parts of an act but must construe all parts in pari materia. See Cochran v. Kansas Dept. of Agriculture, 291 Kan. 898, 904, 249 P.3d 434 (2011).

General garnishment procedure in limited action cases

An order of garnishment aids the judgment creditor in collecting its judgment by allowing the judgment creditor to attach property owned by the judgment debtor but held by the garnishee. See K.S.A. 2019 Supp. 61-3504(a). Garnishment is defined as the procedure in which "the wages, money or intangible property of a person can be seized or attached pursuant to an order of garnishment issued by the court under the conditions set forth in the order." K.S.A. 61-3502. Our garnishment procedure is entirely statutory. See LSF Franchise REO I v. Emporia Restaurants, Inc., 283 Kan. 13, 19, 152 P.3d 34 (2007). In a limited action case like the one here, the judgment creditor starts the garnishment process by filing a request asking the district court to issue a garnishment order. The request must "des- ignate whether the order of garnishment is to be issued to attach earnings or to attach other property of the judgment debtor." K.S.A. 2019 Supp. 61-3504(b). Depending on the designation provided by the judgment creditor, the garnishment order will attach to the judgment debtor's earnings or his or her other property. Compare K.S.A. 2019 Supp. 61-3507 (order of garnishment, earnings) with K.S.A. 61-3505 (order of garnishment, other than earnings). The order of garnishment is then served on the garnishee along with a form for the garnishee's answer. K.S.A. 61-3505(a); K.S.A. 2019 Supp. 61-3507(a). When the garnishment involves funds held by a financial institution, the judgment creditor must have a good faith belief the financial institution "has, or will have, assets of the judgment debtor." K.S.A. 2019 Supp. 61-3506(g). In

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Stormont-Vail Healthcare v. Sievers such cases, the garnishment order must include the following statement: "'If you hold any funds, credits or indebtedness belonging to or owing the judgment debtor, the amount to be withheld by you pursuant to this order of garnishment is not to exceed [110% of the judgment balance still owed].'" K.S.A. 2019 Supp. 61-3506(c). The garnishee has 14 days to send its completed answer to the judgment creditor and/or the judgment debtor. K.S.A. 2019 Supp. 61-3509; K.S.A. 2019 Supp. 61-3510. Immediately after the garnishee has been served, the judgment creditor must give the judgment debtor notice that: (1) the order has been served; (2) he or she has a right to demonstrate the subject property is exempt from garnishment; and (3) he or she has a right to request a hearing on such an exemption claim. K.S.A. 2019 Supp. 61-3508(a). The judgment debtor must request the hearing within 14 days after receiving notice from the judgment creditor. K.S.A. 2019 Supp. 61-3508(b). If a hearing is held, he or she has the burden of showing some or all of the subject property is exempt from garnishment. After the hearing, the district court must enter an order "determining the exemption and such other order or orders as is appropriate." K.S.A. 2019 Supp. 61-3508(c).

Garnishments on intangible property other than earnings

Relevant to this case, the portion of subject property attached through garnishment depends on the status of the garnishee holding the property. When a garnishment order is issued to attach intangible property other than earnings, then K.S.A. 61-3505 applies. Under K.S.A. 61-3505(b)(1), a nonwage garnishment order has the effect of attaching:

"All intangible property, funds, credits or other indebtedness belonging to or owing the judgment debtor, other than earnings, which is in the possession or under the control of the garnishee, and all such credits and indebtedness due from the garnishee to the judgment debtor at the time of service of the order." (Emphases added.)

When the garnishment order is directed to the judgment debt- or's employer, then K.S.A. 2019 Supp. 61-3507 applies. A wage garnishment order has the effect of attaching "the nonexempt portion of the judgment debtor's earnings for all pay periods which

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Stormont-Vail Healthcare v. Sievers end while the order is in effect. . . . Nonexempt earnings are earnings which are not exempt from wage garnishment pursuant to K.S.A. 60-2310." (Emphases added.) K.S.A. 2019 Supp. 61- 3507(b). Under K.S.A. 2019 Supp. 60-2310(b):

"Restriction on wage garnishment. Subject to the provisions of subsection (e), only the aggregate disposable earnings of an individual may be subjected to wage garnishment. The maximum part of such earnings of any wage earning individual which may be subjected to wage garnishment for any workweek or multiple thereof may not exceed the lessor of: (1) Twenty-five percent of the individual's aggregate disposable earnings for that workweek or multiple thereof." (Emphasis added.)

In other words, 75 percent of a judgment debtor's earnings cannot be attached by a wage garnishment order. K.S.A. 2019 Supp. 60-2310(a)(1) defines "earnings" as "compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise." (Emphases added.)

Funds deposited into a bank account are not "earnings" as defined by K.S.A. 2019 Supp. 60-2310(a)(1).

Sievers argues the funds paid and electronically deposited into his bank account meet K.S.A. 2019 Supp. 60-2310(a)(1)'s definition of "earnings" and therefore could not be attached through a nonwage garnishment under K.S.A. 61-3505. His argument depends entirely on K.S.A. 2019 Supp. 60-2310(a)(1)'s definition of "earnings" as "compensation paid." Based on this definition, he reasons:

1. Wages paid are "earnings."

2. Therefore, the wages paid and electronically deposited into his account were "earnings."

3. A nonwage garnishment order attaches to subject property "other than earnings."

4. Therefore, the funds deposited into his account could not be attached by a nonwage garnishment.

At first glance, Sievers' argument appears to apply an ordinary meaning to the word "paid," but the effect of his argument re- moves K.S.A. 2019 Supp. 60-2310(a)(1)'s definition of "earnings"

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Stormont-Vail Healthcare v. Sievers from the narrow confines of the employer-employee transactional relationship. K.S.A. 2019 Supp. 60-2310(a)(1)'s definition of "earnings" cannot be separated from the procedure of a wage garnishment under K.S.A. 2019 Supp. 61-3507. Only an employer, not a financial institution, can act as the garnishee for a wage garnishment. Under K.S.A. 2019 Supp. 61-3507(a), if the judgment creditor is "notified by the garnishee that the judgment debtor has never been employed by the garnishee or the judgment debtor's employment has been terminated," the judgment creditor must immediately file a release of the garnishment. (Emphasis added.) Therefore, the partial exemption on wage garnishment set out under K.S.A. 2019 Supp. 61-3507—and consequently, K.S.A. 2019 Supp. 60- 2310(a)(1)—specifically applies only to the employer-garnishee. Under K.S.A. 2019 Supp. 61-3507(b), an order for wage garnishment is a continuing garnishment; it remains in effect until the judgment is paid or the garnishment is released, whichever is sooner. And an order for wage garnishment must attach "the nonexempt portion of the judgment debtor's earnings for all pay periods which end while the order is in effect." (Emphasis added.) K.S.A. 2019 Supp. 61-3507(b). The plain language of K.S.A. 2019 Supp. 61-3507(a) read together with K.S.A. 2019 Supp. 61- 3507(b) can only mean the employer-garnishee must continue to withhold the nonexempt portion of the judgment debtor's earnings until the judgment is satisfied or the garnishment is released. Clearly, an employer-garnishee would have no ability to withhold a judgment debtor's wages once those wages have been paid out. Thus, the exemption set out under K.S.A. 2019 Supp. 61-3507(a) and K.S.A. 2019 Supp. 60-2310(a)(1) is expressly limited to the payroll process, not the protection of a given fund. Because the meaning of "earnings" as defined under K.S.A. 2019 Supp. 60-2310(a)(1) and as applied under K.S.A. 2019 Supp. 61-3507(a)-(b) is inextricably tied to the employer-employee relationship, once a judgment debtor's "earnings" fall outside the employer-employee relationship—i.e., the judgment debtor's compensation for a given pay period is paid out—his or her wages lose their status as "earnings" and become "other than earnings" under K.S.A. 61-3505. Therefore, the district court did not err

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Stormont-Vail Healthcare v. Sievers when it found the funds in Sievers' bank account lost their status as "earnings" and became garnishable under K.S.A. 61-3505. The Davis panel interpreted these statutes and reached the same conclusion when it held "ordinary wages lose their status as earnings when they are deposited into a bank account." 39 Kan. App. 2d at 444. In support, the panel found K.S.A. 61-3507(b)'s limiting language— "for all pay periods which end while the order is in effect"—"applies expressly only to wages that have not yet been paid." (Emphasis added.) 39 Kan. App. 2d at 447-48. The panel went on to find: "Be- cause the wage-garnishment statute is not applicable and Dillon's issued a non-wage garnishment, the matter is covered by K.S.A. 61- 3505(b)(1)." 39 Kan. App. 2d at 448. The Davis panel correctly applied K.S.A. 61-3505 and K.S.A. 61-3507. We find Davis persuasive. In a similar vein, Kansas federal courts have consistently held K.S.A. 60-2310 itself requires that wages are "earnings" only while in the hands of the employer-garnishee. For example, in In re Dough- man, 263 B.R. 905 (Bankr. D. Kan. 1999), the court found the definition of a "wage garnishment" under K.S.A. 60-2310(a)(3) requires an employer to "withhold" the employee's earnings for the payment of a debt, an act which the employer can only accomplish before it pays out the employer's earnings:

"The essence of a wage garnishment proceeding is that the debtor's employer is required to withhold some part of the debtor's earnings for a payment of a debt. The Court need only to look to the statute to conclude that, irrespective of whether the proceeds lose their character as 'earnings' upon deposit into a bank account, the restrictions in K.S.A. § 60-2310 apply only to wages before they are paid to the debtor. (Emphasis added.) To read the statute otherwise would read out of it the portion of the definition of 'wage garnishment' referring to withholding earnings for payment of a debt." 263 B.R. at 908.

Other courts have interpreted K.S.A. 60-2310 in a like manner. See In re Adcock, 264 B.R. 708, 712 (Bankr. D. Kan. 2000) ("[T]he court is persuaded . . . that the restrictions in [K.S.A.] 60- 2310(b) apply only to wages before they are paid to the debtor." [Emphasis added.]); In re Resler, 282 B.R. 246, 248 (Bankr. D. Kan. 2002) ("'[P]aid and deposited' earnings are not subject to the same exemption protection afforded wages which have been earned but remain in the hands of the payor."). Although federal court decisions on issues of state law are not binding on this court, these cases are persuasive to the extent they demonstrate wages

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Stormont-Vail Healthcare v. Sievers are "earnings" under K.S.A. 2019 Supp. 60-2310 only within the confines of the employer-employee relationship. To support his argument, Sievers claims our Supreme Court's interpretation of the word "paid" in K.S.A. 44-514(a) and 42 U.S.C. § 407(a) (2012) equally applies to K.S.A. 2019 Supp. 60- 2310(a)(1). K.S.A. 2019 Supp. 44-514(a) provides: "[N]o claim for [workers] compensation . . . paid, shall be assignable or subject to levy, execution, attachment, garnishment, or any other remedy or procedure for the recovery or collection of a debt." Similarly, 42 U.S.C. § 407(a) (2012) provides that "paid or payable" Social Security benefits shall not be subject to "execution, levy, attachment, garnishment, or other legal process, or to the operation of any bankruptcy or insolvency law." Based on these statutes, in Decker & Mattison Co. v. Wilson, 273 Kan. 402, 407, 44 P.3d 341 (2002), and E.W. v. Hall, 260 Kan. 99, 106, 917 P.2d 854 (1996), our Supreme Court found, respectively, that workers compensation and Social Security benefits maintain their exempt status when they are deposited into a bank account. Although these cases reach the result argued for by Sievers, his reliance on them is misplaced. Workers compensation and So- cial Security benefits are exempt from any legal process, garnishment or otherwise, unless a statutory exception applies. See, e.g., K.S.A. 2019 Supp. 44-514(b). By contrast, K.S.A. 2019 Supp. 61- 3507 expressly provides that earnings are partially exempt from garnishment only while in the hands of the judgment debtor's employer. Because the wage garnishment restriction under K.S.A. 2019 Supp. 60-2310(a)(1) is much narrower in scope than the garnishment restrictions under K.S.A. 2019 Supp. 44-514(a) and 42 U.S.C. § 407(a) (2012), the courts' decisions in Decker and Hall reflect the importance of a specific statutory exemption not present here. Finally, Sievers' broad interpretation of "earnings" effectively construes the language "compensation paid" under K.S.A. 2019 Supp. 60-2310(a)(1) to mean "compensation paid and deposited and traceable to earnings." Earnings that are paid are not necessarily deposited into a bank account, nor are funds deposited into a bank account necessarily traceable to earnings. Our Legislature

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Stormont-Vail Healthcare v. Sievers has the authority to enact restrictions on garnishment for deposited wages that are directly traceable to earnings as other states have. The states that have done so limit both the manner in which funds are deposited and their traceability to wages. See Mo. Rev. Stat. § 90.01(d)(1) ("'Property subject to garnishment' does not include funds of the debtor on deposit with a bank or other financial institution in an account in which all funds are . . . [d]eposited electronically on a recurring basis"); Fla. Stat. § 222.11(3) ("Earnings that are . . . credited or deposited in any financial institution are exempt from attachment or garnishment for 6 months after the earnings are received by the financial institution if the funds can be traced and properly identified as earnings."); Va. Code Ann. § 34-29(d)(1) ("'[E]arnings' means compensation paid or payable for personal services, . . . whether paid directly to the individual or deposited with another entity or person on behalf of and traceable to the individual"); Cal. Civ. Proc. Code § 704.070(b)(1) ("Paid earnings that can be traced into deposit ac- counts . . . are exempt . . . if prior to payment to the employee they were subject to an earnings withholding order or an earnings as- signment order for support."). (Emphases added.) But our Legislature has not enacted a restriction on garnishment for deposited wages directly traceable to earnings. It is the Legislature's role alone to do so. There is no language in K.S.A. 2019 Supp. 60-2310(a)(1) to support the expansion of "earnings" to include deposited funds that are traceable to earnings. Sievers' reasoning would place a restriction on garnishment where the Leg- islature has not. Sievers’ funds held at CFS were subject to garnishment under K.S.A. 61-3505 as the district court found.

Affirmed.

* * *

STANDRIDGE, J., dissenting: I respectfully dissent from the majority's decision that Harold E. Sievers' wages no longer qualified as earnings exempt from attachment under K.S.A. 61-3505 after his paycheck was electronically deposited into his bank account. On January 30, 2019, Stormont-Vail Healthcare, Inc. (SVH) filed a request for garnishment naming Sievers as the defendant

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Stormont-Vail Healthcare v. Sievers and Capitol Federal Savings Bank (CFS) as the garnishee. SVH specifically designated the garnishment request as one to attach property other than earnings:

"The judgment creditor, Stormont-Vail Healthcare, Inc., requests that the Court issue an Order of Garnishment to attach other than earnings of Harold E. Sievers. The current balance is $3,789.71 (Plus Interest and Costs). The purpose of the garnishment is to recover the judgment due. The judgment amount is the current balance due and may also include costs, fees, interest and any other items included in the Judgment." (Emphasis added).

On February 1, 2019, and consistent with the type of garnishment designated by SVH, the district court issued an "Order for Non Wage Garnishment" and "ORDER OF GARNISHMENT (To Attach Other Than Earnings)" to CFS as the garnishee. On February 8, 2019, Sievers received his regular paycheck in the net amount of $749.59; the paycheck was electronically deposited into Sievers' checking account at CFS. Before his paycheck was deposited, Sievers had a cash balance of $56.70 in his checking account, which he testified were wages/earnings left over from his prior net pay in the amount of $771.42 electronically deposited on January 25, 2019. So after his paycheck was deposited on Friday, February 8, 2019, Sievers had a total balance of $806.29, all of which were wages from his employment. Notwith- standing the electronic direct deposit of his wages that morning, Sievers' bank card was declined when he tried to make a purchase for approximately $24 at Walmart that afternoon. On Monday, February 11, 2019, Sievers went to CFS and discovered that it had withheld $707.01 from his bank account under the directive set forth in the district court's order of garnishment. CFS also withheld $15 as an administrative garnishment fee. On February 14, 2019, Sievers requested a hearing on whether the property withheld by CFS was exempt from attachment because it was earnings under K.S.A. 2019 Supp. 61-3507. After the hearing, the district court issued an order overruling Sievers' objection to garnishment. In its order, the court made one factual finding: "An 'Order of Garnishment (To Attach Other than Earn- ings)' was issued in the above matter on February 1, 2019, to Cap- itol Federal Savings Bank." Summarily relying on Dillon Compa- nies v. Davis, 39 Kan. App. 2d 444, 181 P.3d 570 (2008), and In

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Stormont-Vail Healthcare v. Sievers re Adcock, 264 B.R. 708 (D. Kan. 2001) (cited incorrectly in the court's decision as 262 B.R. 865), the court made one conclusion of law: "[O]nce [Sievers'] paycheck was deposited into his bank account, his wages lost their status as 'earnings,' and became garnishable under K.S.A. 61-3505." The court then stated that it was not making "any other factual findings regarding the evidence and testimony presented." The district court's order makes clear that its decision was grounded in the law and not in fact. The court affirmatively declined to make a factual finding regarding whether the funds in the account were earnings; instead, it found as a matter of law that once a debtor's wages are deposited into a bank account, they lose their status as earnings for purposes of the earnings exemption in K.S.A. 61-3505. The court did not rely on the language of the statute to make this conclusion of law, in all likelihood because the statutory language does not support such a legal conclusion. In fact, the plain language of the statute supports the opposite conclusion. There is no dispute between the parties that K.S.A. 61-3505, which governs orders of garnishments other than earnings, is the controlling statute. As noted above, when a statute is plain and unambiguous, this court need not speculate about the legislative intent behind that clear language and will refrain from reading something into the statute that is not readily found in its words. Given these mandates, we need not look to prior cases from this court or cases from foreign jurisdictions but instead to the relevant language of the statute itself:

"This section shall apply if the garnishment is to attach intangible property other than earnings of the judgment debtor. . . . . "(b) The order of garnishment shall have the effect of attaching: (1) All intangible property, funds, credits or other indebtedness belonging to or owing the judgment debtor, other than earnings, which is in the possession or under the control of the garnishee, and all such credits and indebtedness due from the garnishee to the judgment debtor at the time of service of the order." (Emphasis added). K.S.A. 61-3505.

K.S.A. 2019 Supp. 60-2310(a)(1) defines "earnings" for purposes of this act as "compensation paid or payable for personal

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Stormont-Vail Healthcare v. Sievers services, whether denominated as wages, salary, commission, bonus or otherwise." (Emphasis added.) Under this statutory definition, wages paid are earnings. And K.S.A. 61-3505 applies only to a garnishment of property other than earnings of the judgment debtor. Therefore, the wages that were electronically paid to Siev- ers by his employer via direct deposit to his bank account clearly meet the statutory definition of earnings and are exempt from attachment through garnishment under K.S.A. 61-3505. Notwithstanding this plain language, the majority finds that the minute Sievers' paycheck was electronically deposited into his bank account, the wages no longer qualified as earnings exempt from attachment under K.S.A. 61-3505. Specifically, the majority finds that the definition of "earnings" set forth in K.S.A. 2019 Supp. 60-2310(a)(1) is inextricably tied and therefore applicable to the word "earnings" as it is used in K.S.A. 2019 Supp. 61-3507 ("[t]his section shall apply if the garnishment is to attach earnings of the judgment debtor" [emphasis added]) but wholly inapplica- ble to the word "earnings" as it is used in K.S.A. 61-3505 ("[t]his section shall apply if the garnishment is to attach intangible property other than earnings of the judgment debtor" [emphasis added]). But the majority is doing exactly what it said it could not do: speculating about the legislative intent behind the clear language of the statute and reading something into the statute that is not readily found in its words. In fact, a close reading of the statute affirmatively establishes that the definition of earnings set forth in K.S.A. 2019 Supp. 60-2310 applies to both K.S.A. 61-3505 and K.S.A. 2019 Supp. 61-3507. Although K.S.A. 2019 Supp. 60-2310 deals with wage garnishment, the Legislature did not include this particular statute under Article 7 of Chapter 60 governing attachment and garnishment. Instead, the Legislature enacted the statute under Article 23 of Chapter 60, which relates to exemptions. L. 1963, ch. 303. In its current version, subsection (a) of the statute provides definitions for the overall act and subsection (b) governs restrictions on wage garnishment. K.S.A. 2019 Supp. 60-2310. Before 1970, K.S.A. 60-2310 did not have a definitional section. See K.S.A. 1969 Supp. 60-2310. In that year, the Legislature

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Stormont-Vail Healthcare v. Sievers amended the statute to add the definitions that still remain in the current version of the statute:

"(a) Definitions. As used in this act, unless the context otherwise requires, the following words and phrases shall have the meanings respectively ascribed to them herein: (1) 'Earnings' means compensation paid or payable for personal services, whether denominated as wages, salary, commission, bonus or otherwise; (2) 'Disposable earnings' means that part of the earnings of any individual remaining after the deduction from such earnings of any amounts required by law to be withheld; (3) 'Wage garnishment' means any legal or equitable procedure through which the earnings of any individual are required to be withheld for payment of any debt; and (4) 'Federal minimum hourly wage' means that wage prescribed by subsection (a)(1) of section 6 of the federal fair labor standards act of 1938, and any amendments thereto." L. 1970, ch. 238, § 1.

The Legislature amended the statute in 1970 as part of House Bill 1996 and described it as: "An Act relating to attachment and garnishment proceedings; providing certain exemptions and restrictions." The 1970 Act also amended K.S.A. 60-717 (attachment and garnishment in regular actions) and K.S.A. 61-2005 (attachment and garnishment in limited action proceedings). L. 1970, ch. 238, §§ 7, 10. Given the 1970 amendments to K.S.A. 60-2310, K.S.A. 60-717, and K.S.A. 61-2005 were all part of the same Act, the definition of "earnings" necessarily applied equally to all statutes amended in that Act. See L. 1970, ch. 238, § 1 ("As used in this act, unless the context otherwise requires, the following words and phrases shall have the meanings respectively ascribed to them herein."). In 1972, the Legislature amended K.S.A. 60-717 (attachment and garnishment in regular actions) and K.S.A. 61-2005 (attachment and garnishment in limited action proceedings) to distin- guish between garnishment proceedings brought to attach property other than earnings and garnishment proceedings brought to attach earnings. L. 1972, ch. 222, as amended by ch. 215, §§ 2, 6. The distinctions provided that

 a nonwage order of garnishment had the effect of attaching property, funds, credits or other indebtedness belonging to or owing the defendant, other than earnings; and

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Stormont-Vail Healthcare v. Sievers

 a wage order of garnishment had the effect of attaching the nonexempt portion of the defendant's earnings for the entire normal pay period in which the order is served. L. 1972, ch. 222, as amended by ch. 215, §§ 2, 6; see also K.S.A. 1973 Supp. 60-717(c); K.S.A. 1973 Supp. 61- 2005(c).

The Legislature amended the statutes as part of House Bill 1870 and described it as: "An Act relating to attachment and garnishment." L. 1972, ch. 222, as amended by ch. 215, § 4. The 1972 Act also amended the introductory language to the definitional subsection of K.S.A. 60-2310 by adding the language in italics below:

"(a) Definitions. As used in this act and the acts of which this act is amendatory, unless the context otherwise requires, the following words and phrases shall have the meanings respectively ascribed to them[.]" L. 1972, ch. 222, as amended by ch. 215, § 4.

The language in italics is critical to our reading of the statute today. Although the garnishment statutes have been amended since 1972 to separate and renumber the wage and nonwage statutes, the clear and unambiguous language of K.S.A. 60-2310(a) dictates that the definition of "earnings" applies to statutes that were part of the 1972 Act, even if those statutes were thereafter amended or renumbered. To find otherwise, as the majority does here, is to completely ignore the plain and unambiguous language in the current statute: "As used in this act and the acts of which this act is amendatory, unless the context otherwise requires, the following words and phrases shall have the meanings respectively ascribed to them." K.S.A. 2019 Supp. 60-2310. Before concluding, I would note that SVH specifically designated the garnishment at issue on appeal as one under K.S.A. 61- 3505, which applies to a garnishment of property other than earnings of the judgment debtor. And, at the same time it applied for and received an order of garnishment directing CFS to attach property belonging to Sievers other than his earnings under K.S.A. 61-3505, SVH applied for and received an order of garnishment directed to Sievers' employer to attach his wages under K.S.A. 2019 Supp. 61-3507. The wage garnishment necessarily

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Stormont-Vail Healthcare v. Sievers would have been subject to a partial exemption in order for Siev- ers to retain enough of his wages to support himself during the time period in which the garnishment was in effect. K.S.A. 2019 Supp. 61-3507. But in lieu of attaching partial wages through his employer, SVH chose to attach all of Sievers' wages as soon as those wages were electronically deposited into Sievers' checking account. SVH's actions in this regard appear to undermine the purpose of the wage exemption, which our Supreme Court stated was to protect a class of persons who are largely dependent on their wages for support, as well as their families and dependents who look to them for a living, and that such a statute should receive a liberal construction rather than one which would defeat the benev- olent object aimed to be accomplished. Miller v. Keeling, 185 Kan. 623, 627-28, 347 P.2d 424 (1959). Based on the clear and unambiguous language of the governing statute, I would reverse the decision of the district court and hold the wages that were electronically paid to Sievers by his employer via direct deposit to his bank account clearly meet the statutory definition of earnings and are exempt from attachment through garnishment under K.S.A. 61-3505.

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In re Henson

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No. 120,543

In the Matter of GINA NOEL HENSON, n/k/a BISH, Appellee, and CHRISTOPHER ROBERT HENSON, Appellant.

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SYLLABUS BY THE COURT

1. JURISDICTION—Subject Matter Jurisdiction Issue. Subject matter jurisdiction may be raised at any time, even for the first time on appeal.

2. SAME—Lack of Subject Matter Jurisdiction—Void Order. An order made by a court that lacks subject matter jurisdiction is a void order.

3. JUDGMENTS—Void Judgment Lacks Validity. A party's voluntary payments under a void judgment do not amount to acquiescence under the law because a void judgment has no legal force or validity.

4. SAME—Motion to Set Aside Judgment—Statutory Requirement to Timely File. A K.S.A. 60-260(b) motion must generally be filed "within a reasonable time." But a void judgment may be set aside at any time.

5. JURISDICTION—Modification of Child Support Orders—Preemption of State Law. The Full Faith in Credit for Child Support Orders Act preempts state law with respect to the modification of child support orders in a Uni- form Reciprocal Enforcement of Support Act enforcement action.

6. SAME—Enforcement of Child Support Orders from Another State. The Full Faith in Credit for Child Support Orders Act establishes a general rule requiring a state to enforce the child support order of another state. See 28 U.S.C. § 1738B(a)(1). It further prohibits a state from modifying another state's child support order if the issuing state has "continuing, exclusive jurisdiction" over the matter.

7. SAME—Continuing Jurisdiction in Issuing State unless Written Consent. The issuing state retains continuing, exclusive jurisdiction to modify child support orders as long as one of the parties to the order continues to reside in the initiating state, unless all parties file written consent to jurisdiction in another state.

8. SAME—Child Support Orders—Modifications Prohibited under FFCCSOA. Under the Full Faith in Credit for Child Support Orders Act, modifications are prohibited unless the exceptions are satisfied.

9. JUDGMENTS—Void Judgment Lacks Validity. A void judgment is an absolute nullity and cannot serve as the basis for a valid judgment.

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In re Henson

10. APPELLATE PROCEDURE—Attorney Fees on Appeal—Compliance with Rule 7.07. A party seeking attorney fees on appeal must comply with Supreme Court Rule 7.07(b)(2) (2020 Kan. S. Ct. R. 50). An attorney's verification does not meet that Rule's requirement of an affidavit.

Appeal from Sedgwick District Court; ERIC A. COMMER, judge. Opinion filed April 17, 2020. Reversed and remanded with directions.

Thomas C. McDowell, of McDowell Chartered, of Wichita, for appellant.

Charles F. Harris, of Law Office of Charles F. Harris, of Wichita, for appellee.

Before GARDNER, P.J., BUSER, J., and BURGESS, S.J.

GARDNER, J.: In this post-divorce case, Christopher Robert Henson appeals the district court's decisions about child support arrearages, medical reimbursements, and attorney fees owed to his ex-wife Gina Noel Bish. Chris also challenges a default judgment entered against him in 2005. Chris argues that because the district court's decisions were based on a void judgment ordered by a Cal- ifornia court without subject matter jurisdiction, they must be found void. We agree. Because the district court's decisions were based on a void judgment, we reverse the district court's decision and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Chris and Gina divorced in 1991. They have three children together. Their youngest child turned 18 years old in 2009. At the time of their divorce, Chris, Gina, and their children lived in Kan- sas.

Kansas issues original child support orders.

In a 1991 divorce decree, the district court awarded Gina primary residential custody of all three children. The district court also ordered Chris to pay child support in the amount of $226 per month through September 1991 and $300 per month after that. Chris was also ordered to pay 50% of the children's prescriptions, medications, and medical bills. Sometime in 1993 or 1994, Chris moved to California and found a job as a legal assistant. Gina remained in Kansas. But Chris failed to notify the district court or Gina of his move or

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In re Henson change in income. He did, however, continue to make some child support payments.

California enforces the Kansas orders in 1994.

In August 1994, Gina moved to enforce Chris' support obligations, so an action commenced under the Uniform Reciprocal En- forcement of Support Act (URESA), K.S.A. 23-451 et seq. See L. 1994, ch. 301, § 86, effective July 1, 1995. By the time Gina filed her motion, however, Chris had an arrearage in past due child support. The district court trustee began an action to enforce the Kan- sas child support order and to obtain medical reimbursement under URESA. Once opened, the case was forwarded to the Child Support Office of the District Attorney in San Francisco. The Kan- sas support order was registered there in December 1994. Chris then began paying $300 per month in child support pursuant to an income withholding order issued in the California action.

California modifies the Kansas orders in 1996.

In May 1996, the district court trustee, on Gina's behalf, asked the California court to modify the child support amount and require payment for medical bills and insurance. The California court assessed the parties' incomes and modified the Kansas order by:

 increasing Chris' child support obligation from $300 to $948 per month;  requiring Chris to pay an additional $50 per month toward the arrearages; and  finding each party responsible for half of all unreimbursed or uninsured health expenses. Chris did not appeal this December 1996 order.

Chris moves to Colorado.

After the California court modified Chris' support obligation in December 1996, Chris made semi-regular child support payments until 2005. By 2002, Chris had moved from California to Denver, Colorado. Again, Chris failed to notify the district court or Gina of his move. Gina remained in Kansas. Because Chris had

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In re Henson moved to Colorado, California stopped collecting support and closed its case. At that time, its records showed Chris' child support arrearage was $71,687.87. In October 2002, the Sedgwick County Court trustee sent a notice of intent to issue an income withholding order to Chris' employer in Colorado. The notice showed a total of $400 per month would be withheld—$300 for the child support obligation and $100 for arrearages. That same month, the Department of Child Support Services sent a letter and a copy of the 1996 California order modifying Chris' child support to the trustee's office. Both documents were filed in the district court.

The Kansas court finds Chris in default and bases the amount of arrearage on the California modification.

In June 2005, Gina moved to determine that Chris was in arrears for child support in the sum of $73,276.76 and $10,374.82 in unpaid medical expenses. This motion was sent to Chris' last known address as given by his attorney. But Chris claims that he never received the motion. After the motion was filed, Chris' attorney moved to withdraw. The district court held a hearing on both motions, but Chris failed to appear. The district court granted Gina's motion and entered a default judgment against Chris. It found Chris owed $73,019.59 in child support arrearage and $10,374.82 in unpaid medical expenses. Chris claims he never saw the journal entry until after the time passed for filing a notice of appeal, so he never appealed it. The district court, however, determined that Chris had been properly notified. In August 2005, after Gina and Chris' oldest child turned 18, the district court trustee sent another notice of intent to issue an income withholding order. It specified that $200 would be collected monthly for child support and an additional $200 would be collected monthly for past due support. Chris did not respond to or appeal from this order.

Colorado enforces the Kansas default judgment.

In July 2006, the trustee registered the Kansas support order and the Kansas arrearage judgment of $75,419.59 in Colorado for collection by an income withholding order. Chris did not object.

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The accrual of child support ended on June 30, 2009, after Gina and Chris' youngest child had turned 18 years old on April 5, 2009. See K.S.A. 2009 Supp. 60-1610(a). In May 2010, another withholding order began collecting $800 in past due child support from Chris' wages. That continued until January 2014 when Chris moved to set aside the 2005 default judgment.

Chris moves to set aside the Kansas 2005 default judgment.

After a hearing on Chris' 2014 motion to set aside the default judgment, the district court denied it. But the district court modified the 2005 default judgment so it could determine the amount of arrears after December of 1996, when the California court modified the Kansas support order. The district court ordered Chris to contact the California court to determine the amount, if any, of that arrearage. Instead, Chris filed a notice of appeal from that order. But this court filed a show cause order, questioning our jurisdiction to review the decision. After Chris failed to respond to the show cause order, we dismissed his appeal in March 2015. After we dismissed his appeal, Chris moved to terminate the income withholding order. He argued that he should not be required to pay any arrearage until he complied with the district court's order to determine the amount of arrearage owed under the California decision. Chris claimed he had overpaid his support arrearages by over $75,000 because he was responsible for his child support obligations only until December 1996, when the Califor- nia court modified the Kansas support order. The district court denied Chris' motion and left the income withholding order in place.

Gina moves to adopt the California order; Chris argues it is void.

Gina apparently took it upon herself to get records from the California case because Chris had failed to do so. In August 2016, after obtaining the California records, Gina moved to determine updated arrearage amounts and to adopt the modified California order (Gina's 2016 motion). Chris responded that the district court lacked jurisdiction to enforce the California modified support or-

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In re Henson der, that the Uniform Interstate Family Support Act (UIFSA) provisions prohibited enforcement of the California order, and that he had overpaid his Kansas support obligations. In a supplemental response, Chris argued the California court lacked jurisdiction to modify the Kansas support order under the Full Faith in Credit for Child Support Orders Act (FFCCSOA) and UIFSA because Kan- sas had maintained exclusive and continuing jurisdiction over the case since its initiation in 1991. At the hearing on Gina's 2016 motion, Gina offered and the district court admitted a California account summary document showing Chris owed $71,867.83 in unpaid child support. The district court issued a memorandum opinion in August 2018, affirming its previous rulings, including the 2005 default judgment and its support and arrearage determinations. The district court also found that Chris had waived his FFCCSOA defense by failing to assert it at the 2014 hearing on his motion to set aside the default judgment. In a supplemental order filed in September 2018, the district court held that Chris owed: $88,631.88 in child support arrearage; $24,007.05 for the 2005 medical expenses judgment; and $7,486.75 on outstanding judgments for attorney fees. In November 2018, the trustee issued another notice of intent to issue an income withholding order for $2,500 per month for past due support. Chris objected. The district court held a hearing, overruled Chris' objection, and authorized the withholding order, which remains in effect. Chris now appeals the district court's 2014 decision on his motion to set aside the default judgment, this court's 2015 dismissal of his appeal from that case, the district court's 2015 denial of his motion to terminate the income withholding order, and the district court's two 2018 decisions.

THE DISTRICT COURT ERRED IN FINDING THE CALIFORNIA COURT HAD JURISDICTION TO MODIFY THE CHILD SUPPORT ORDER.

This appeal centers on the district court's 2005 default judgment, which accepted Gina's child support arrearage numbers that were calculated, at least in part, using the California court's modified support order. Chris first argues that the California modification was void because the California court lacked subject matter

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In re Henson jurisdiction under FFCCSOA and UIFSA to modify the Kansas order. Chris then argues that the Kansas district court could not enter a default judgment against him in Kansas for child support arrearages based on the void California modification order, so those Kansas decisions are also void. The district court held that Chris' preemption claim was untimely and that the FFCCSOA did not preempt California's application of URESA in December 1996, when California modified the Kansas child support order.

Standard of review

Whether jurisdiction exists is a question of law over which our scope of review is unlimited. In re Care & Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017). Parties cannot confer subject matter jurisdiction by consent, waiver, or estoppel; a failure to object to the court's jurisdiction does not invest the court with the requisite subject matter jurisdiction. Goldman v. University of Kansas, 52 Kan. App. 2d 222, 225, 365 P.3d 435 (2015). Like- wise, statutory interpretation presents a question of law over which this court has unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019).

The district court erred in finding Chris' jurisdictional claim untimely.

Chris first raised the issue of jurisdiction in his 2014 motion to set aside the 2005 default judgment. At the evidentiary hearing on the motion, Chris cited K.S.A. 23-36,205, arguing that Califor- nia lacked subject matter jurisdiction to modify Chris' support order in December of 1996. He contended that Kansas could enforce its support order only up until November 1996. Alternatively, Kansas could continue to enforce its order after that date but only in the amount of $300 a month total—the amount the Kansas court ordered before the California court improperly modified it to over $300 a month per child. The district court denied Chris' motion. But it also ordered Chris to contact the California court to determine the number of arrearages there. We dismissed Chris' appeal of that order because he failed to answer our show cause order.

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In re Henson

Chris never briefed the FFCCSOA preemption and jurisdiction issues until his supplemental response to Gina's 2016 motion. Then, in addition to arguing that Gina's 2016 motion should be denied, Chris repeated his arguments to set aside the 2005 default judgment and find the California judgment void. Procedurally, Chris' argument seems to be an untimely motion to alter or amend the district court's previous judgment. We understand why the district court may have construed the motion as such. But subject matter jurisdiction may be raised at any time, even for the first time on appeal. In re Emerson, 306 Kan. at 33. So the district court erred in refusing to consider Chris' claim. We are not unsympathetic to the equities apparently underlying the district court's finding that that Chris could not raise this jurisdictional claim so late in the proceedings. Yet, as detailed below, we find no legal or equitable barrier to Chris' claim that Cal- ifornia's modified support order is void because it was made by a court that lacked subject matter jurisdiction. See United States v. Bigford, 365 F.3d 859, 865 (10th Cir. 2004) ("A judgment may . . . be attacked in a collateral proceeding in another jurisdiction on the basis that it was rendered without jurisdiction. ").

Acquiescence

Gina first suggests that Chris acquiesced to the void California judgment by paying its required amounts of support, although not as frequently as required. We disagree. "[A] party's voluntary payments to [a void] judgment cannot amount to acquiescence under the law because a void judgment has no legal force or validity." In re Marriage of Sumpter, No. 96, 256, 2007 WL 656424, at *6 (Kan. App. 2007) (unpublished opinion) (citing Sramek v. Sramek, 17 Kan. App. 2d 573, Syl. ¶ 1, 577, 840 P.2d 553 [1992]. Chris' support payments of the modified amounts do not constitute acquiescence.

Not within a reasonable time

Gina next argues that Chris waited more than eight years to try to set aside the default judgment—an unreasonable amount of time. True, a K.S.A. 60-260(b) motion must generally be filed "within a reasonable time." K.S.A. 2019 Supp. 60-260(c); cf. 7

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Moore's Federal Practice ¶ 60.25(2), pp. 300-01 (2d ed. 1982). But as this court has noted, the "reasonable time limit" generally means "no time limit" as to void judgments:

"'Since a federal judgment that is void can be so collaterally attacked, and since the judgment sustaining the collateral attack would have to be given effect in a subsequent 60(b)(4) motion to set the federal judgment aside as void, the "reasonable time" limitation must generally mean no time limit, although there may be exceptional situations where the reasonable time limitation would require diligence on the part of the movant.'" Barkley v. Toland, 7 Kan. App. 2d 625, 630, 646 P.2d 1124 (1982).

So, in Barkley, we held that the provisions of K.S.A. 60-260(b)(4) require a court to sustain a motion to set aside a void judgment, regardless of its untimeliness. 7 Kan. App. 2d 625, Syl. ¶ 1. And we have held that a void judgment may be set aside at any time. In re Marriage of Gerleman, 56 Kan. App. 2d 578, 583, 435 P.3d 552 (2018); Sramek, 17 Kan. App. 2d at 576. Although "there may be exceptional situations where the reasonable time limitation would require diligence on the part of the movant,'" Barkley, 7 Kan. App. 2d at 630, we find no such exceptional circumstances here. We rely on the general rule instead of the exception. "The clear consensus is that a motion made to set aside a void judgment can be made at any time." 7 Kan. App. 2d at 630.

Law-of-the-case doctrine

Gina next argues that the law-of-the-case doctrine bars our review of Chris' claim. She contends Chris should have raised his claim in his direct appeal from the district court's 2014 decision. Whether the law-of-the-case doctrine applies is a question of law over which we have unlimited review. State v. Parry, 305 Kan. 1189, 1194, 390 P.3d 879 (2017). The law-of-the-case doctrine generally provides that when a subsequent appeal is brought in the same case, prior issues are generally not reconsidered because the prior decision is the law of the case on all questions involved in the first appeal. 305 Kan. at 1195. Similarly, the law of the case doctrine requires a trial court, acting on remand from an appellate court, to proceed in accordance with the mandate and law of the case as established on appeal. 305 Kan. at 1195.

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In re Henson

A panel of this court in Gerleman determined that even the issue of voidness may be precluded if it could have been but was not raised in a prior appeal. In so holding, the panel emphasized that "'[a] party may not settle the law of his case by piecemeal before this court, any more than he may settle the facts in that way before the district court. When the case is tried, he must be prepared to present his entire claim, or his entire defense.' [Citation omitted]." 56 Kan. App. 2d at 585. Gina seeks to apply that principle here. Because Gina argues that Chris should have raised the issue of voidness in his prior appeal, we revisit the relevant facts. As stated above, Chris filed a notice of appeal of the district court's 2014 decision denying his motion to set aside the 2005 default judgment. But that district court's decision appears not to have been final because it required Chris to take further action to determine the amount of arrearage he owed in California. "The term 'final decision' has been construed to mean one which finally decides and disposes of the entire merits of the controversy and reserves no further questions or directions for the future or further action of the court." Kansas Med. Mut. Ins. Co. v. Svaty, 291 Kan. 597, Syl. ¶ 5, 244 P.3d 642 (2010); see also K.S.A. 2019 Supp. 60-2102(a)(4) (requiring appeal from a final decision). This is likely why we issued a show cause order to see whether to dismiss Chris' appeal. Gina's response to our show cause order argued the decision was not final. But Chris did not respond to our order, so we dismissed his appeal. We do not condone Chris' failure to respond to this court's show cause order. But we cannot find that Chris could have raised the issue of voidness in his previous appeal, when the decision he appealed was not final. Not until Gina got the necessary information from the California court was the district court able to issue a final judgment determining the arrearages owed. Chris had failed to do so, despite the district court's valid order to that effect. Under these circumstances, Chris' voidness claim is not barred by the law-of- the-case doctrine.

FFCCSOA preempts URESA.

We thus consider the merits of Chris' argument. He contends that the FFCCSOA preempted URESA so the California court

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In re Henson lacked jurisdiction under FFCCSOA to modify the Kansas support order. Although the district court found this claim untimely, it also made some factual and legal findings about preemption and jurisdiction. It held that California had jurisdiction to modify the support order under URESA—the only law in effect in California in December 1996. The district court then upheld its previous default judgment entered against Chris, using sums based on California's modified support order. For reasons detailed below, we find that California lacked jurisdiction to modify the Kansas support order, although it could have enforced the Kansas order. All preemption arguments are based on the Supremacy Clause of the United States Constitution.

"The Supremacy Clause gives Congress the power to preempt state law. Arizona v. United States, 567 U.S. 387, 398-99, 132 S. Ct. 2492, 183 L. Ed. 2d 351 (2012). When evaluating whether a state law is preempted, '"[t]he purpose of Congress is the ultimate touchstone." Retail Clerks v. Schermerhorn, 375 U.S. 96, 103, 84 S. Ct. 219, 223, 11 L.Ed.2d 179 (1963).' Malone v. White Motor Corp., 435 U.S. 497, 504, 98 S. Ct. 1185, 55 L.Ed.2d 443 (1978)." State v. Gar- cia, 306 Kan. 1113, 1117, 401 P.3d 588 (2017).

When Gina and Chris first divorced in 1991, child support modification and enforcement decisions in Kansas were controlled by URESA. See K.S.A. 23-451 et seq. But URESA caused its own problems:

"Under URESA, a state had jurisdiction to establish, vacate, or modify an obligor's support obligation even when that obligation had been created in another jurisdiction. The result was often multiple, inconsistent obligations existing for the same obligor and injustice in that obligors could avoid their responsibility by moving to another jurisdiction and having their support obligations modified or even vacated. [Citations omitted.]" Gentzel v. Williams, 25 Kan. App. 2d 552, 556, 965 P.2d 855 (1998).

So the Kansas Legislature repealed URESA effective July 1, 1995, and replaced it with UIFSA. See K.S.A 23-9,101 (Furse 1995); see also L. 1994, ch. 301, § 86; Gentzel, 25 Kan. App. 2d at 555. UIFSA incorporated the idea that only one state at a time could issue orders for child support. 25 Kan. App. 2d at 555-56. UIFSA prevented the possibility of multiple support orders being

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In re Henson enforced at one time by using a "continuing, exclusive jurisdiction" provision. See K.S.A. 2019 Supp. 23-36,202; K.S.A. 2019 Supp. 23-36,205. But California did not replace URESA with UIFSA until January 1, 1998. Cal. L. 1997, Senate Bill 568, ch. 194, § 4. So when the Cali- fornia court modified Chris' Kansas support order on December 26, 1996, URESA was effective in California, but not in Kansas. Effective October 20, 1994, however, Congress enacted the FFCCSOA. 28 U.S.C. § 1738B (1996 Supp.). The purpose of this Act was:

"(1) to facilitate the enforcement of child support orders among the States; "(2) to discourage continuing interstate controversies over child support in the interest of greater financial stability and secure family relationships for the child; and "(3) to avoid jurisdictional competition and conflict among State courts in the establish- ment of child support orders." Pub. L. No. 103-383, § 2.

The FFCCSOA required each state to recognize ongoing child support obligations from other states and to modify those obligations only under certain circumstances defined in the statute. "The FFCCSOA's 'bot- tom line' established that support obligors would no longer be permit- ted to 'avoid financial responsibilities to their children by moving to another jurisdiction and availing themselves of preexisting legal loop- holes caused by disparate state laws.' Paton, supra, 104 Ohio App.3d at 832, 663 N.E.2d 421." State ex rel. Scioto Cty. Child Support Enf't Agency v. Adams, No. 98CA2617, 1999 WL 597257, at *6 (Ohio App. 1999) (unpublished opinion). "Courts have found that the FFCCSOA is intended to be consistent with UIFSA. LeTellier v. LeTellier, 40 S.W.3d 490, 498-99 (Tenn. 2001) (reviewing the legislative history of FFCCSOA and finding that Congress did not intend to preempt UIFSA)." In re Marriage of Phillips, No. 91,917, 2005 WL 475240, at *2 (Kan. App. 2005) (unpublished opinion). Yet courts have consistently found that the FFCCSOA preempts state law with respect to the modification of child support orders in a URESA enforcement action. See e.g., In re Marriage of Yuro, 192 Ariz. 568, 571-72, 968 P.2d 1053 (Ct. App.1998); State v. Fleet, 679 So.2d 326, 329 (Fla. Dist. Ct. App. 1996) (FFCCSOA preempts Flor- ida law with respect to modification of orders in URESA enforcement action); Georgia Dep't of Human Res. v. Deason, 238 Ga. App. 853,

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In re Henson

861, 520 S.E.2d 712 (1999) (trial court erred in ignoring FFCCSOA, which preempted URESA); Kelly v. Otte, 123 N.C. App. 585, 589, 474 S.E.2d 131 (1996) (FFCCSOA is "binding on all states and super- sede[s] any inconsistent provisions of state law, including any inconsistent provisions of uniform state laws such as URESA."); Wilkie v. Silva, 141 N.H. 461, 463, 685 A.2d 1239 (1996) (FFCCSOA preempts New Hampshire law); Isabel M. v. Thomas M. 164 Misc. 2d 420, 423-25, 624 N.Y.S.2d 356 (1995) (URESA conflicts with FFCCSOA and is therefore preempted.). "Further, it defies logic to think that the FFCCSOA, given Congress's express findings and declaration of purpose, would exclude orders made under URESA from its scope." State ex rel. Scioto Cty. Child Support Enf't Agency v. Adams, No. 98CA2617, 1999 WL 597257, at *8 (Ohio Ct. App. 1999) (unpublished opinion). The California Supreme Court has also found that FFCCSOA preempts URESA. "FFCCSOA . . . preempts California law in a URESA enforcement proceeding and applies to all pending cases." In re Marriage of Comer, 14 Cal. 4th 504, 536, 59 Cal. Rptr. 2d 155, 927 P.2d 265 (1996) (Baxter, J., concurring). That decision was filed on December 16, 1996, shortly before the De- cember 26, 1996 modification by the California court in this case. The district court here held that because California had not yet adopted UIFSA, URESA controlled. But the district court failed to recognize that California's URESA had been preempted by FFCCSOA, and that URESA was not substantially similar to UIFSA or FFCCSOA. See K.S.A. 2019 Supp. 23-36,205(c) ("If a tribunal of another state has issued a child support order pursuant to the uniform interstate family support act or a law substantially similar to that act which modifies a child support order of a tribunal of this state, tribunals of this state shall recognize the continuing, exclusive jurisdiction of the tribunal of the other state." [Em- phasis added.]).

California lacked jurisdiction to modify the Kansas support order.

FFCCSOA incorporated the same concept of continuing, exclusive jurisdiction as does UIFSA. See 28 U.S.C. § 1738B. FFCCSOA establishes a general rule requiring a state to enforce the child support

180 COURT OF APPEALS OF KANSAS VOL. 58

In re Henson order of another state. See 28 U.S.C. § 1738B(a)(1). It further prohibits a state from modifying another state's child support order if the issuing state has "continuing, exclusive jurisdiction" over the matter. See 28 U.S.C. § 1738B (a)(2), (d), and (e). Once a state issues an initial child support order, that state's substantive law governs the order, and the State maintains continuing, exclusive jurisdiction to modify a child support order that it lawfully issued, even if parties filed pleadings in another state. The issuing state retains continuing, exclusive jurisdiction to modify child support orders as long as one of the parties to the order continues to reside in the initiating state, unless all parties file written consent to jurisdiction in another state. As applied here, Kansas retains continuing, exclusive jurisdiction to modify child support orders as long as Gina resides here, unless she and Chris both filed written consent to jurisdiction in California. The FFCCSOA defines the circumstances under which a court of a state may modify a child support order issued by another state:

"A court of a State that has made a child support order consistently with this section has continuing, exclusive jurisdiction over the order if the State is the child's State or the residence of any individual contestant or the parties have consented in a record or open court that the tribunal of the State may continue to exercise jurisdiction to modify its order, unless the court of another State, acting in accordance with subsections (e) and (f), has made a modification of the order. "(e) Authority to modify orders.—A court of a State may modify a child support order issued by a court of another State if— (1) the court has jurisdiction to make such a child support order pursuant to subsection (i); and (2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child's State or the residence of any individual contestant and the parties have not consented in a record or open court that the tribunal of the other State may continue to exercise jurisdiction to modify its order; or (B) each individual contestant has filed written consent with the State of continuing, exclusive jurisdiction for a court of another State to modify the order and assume continuing, exclusive jurisdiction over the order. . . . . "(i) Registration for modification.—If there is no individual contestant or child residing in the issuing State, the party or support enforcement agency seeking to modify, or to modify and enforce, a child support order issued in another State shall register that order in a State with jurisdiction over the nonmovant for the purpose of modification." 28 U.S.C. § 1738B.

Under FFCCSOA, "modifications are prohibited unless the exceptions are . . . satisfied." State v. Fleet, 679 So.2d 326, 329

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(Fla. Dist. Ct. App. 1996). Neither exception is satisfied here. When California purported to modify the Kansas child support order in 1996, Gina and her children remained in Kansas—the issuing state—as they did throughout the underlying proceeding. And no one argues that all the parties filed any written consent in Kan- sas for California to modify the Kansas orders. See 28 U.S.C. § 1738B(e)(2)(A) and (B). Because Gina is still a resident of Kansas and the parties have not provided written consents for a California tribunal to exercise jurisdiction over the matter, Kansas has had exclusive, continuing jurisdiction over the child support orders since they were issued in 1991. See 28 U.S.C. § 1738B(e)(2)(A). Thus, the Kansas child support orders may be enforced in another state, but they cannot be modified by another state. "The term 'continuing, exclusive jurisdiction' is used in [UIFSA] to indicate that only one tribunal has jurisdiction to modify a child support order at a time." Linn v. Child Support Enforcement, 736 A.2d 954, 959 (Del. 1999) (citing Gentzel, 25 Kan. App. 2d 552). Under the applicable provisions of the FFCCSOA and UIFSA—28 U.S.C. § 1738B and K.S.A. 2019 Supp. 23-36,207(b)(1)—only Kansas had and maintained continuing, exclusive jurisdiction over the support order. See In re Garrett, 315 B.R. 431, 438 (Bankr. E.D. Tex. 2004) (finding Texas court lacked jurisdiction to modify California support order where mother and minor children never moved from California and the parties did not agree to jurisdiction in Texas). For that reason, the district court erred in finding that the California court had jurisdiction to modify the support order. See Annot. 18 A.L.R. 6th 97, § 33 (2006) (citing multiple cases holding that an issuing state's child support order could not be modified by another state when the custodial parent or the parties' child continued to reside in the issuing state because under FFCCSOA the issuing state retained continuing, exclusive jurisdiction over the order).

THE DISTRICT COURT ERRED IN GRANTING GINA'S 2016 MOTION AND IN UPHOLDING ITS PREVIOUS DEFAULT JUDGEMENT.

The parties disagree as to the effect California's lack of subject matter jurisdiction has on later Kansas orders. Chris argues that because the California court lacked jurisdiction to modify the Kansas support order, the California modification that increased

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In re Henson his child support amounts is void and Kansas decisions relying on that judgment are also void. Gina raises equitable reasons for not finding the Kansas decisions void. We find, for reasons explained below, that the district court committed reversible error by granting Gina's 2016 motion to determine updated arrearage amounts, adopting the modified California order, and upholding its previous default judgment.

Standard of review

A void judgment is one rendered by a court lacking personal or subject matter jurisdiction or acting in a manner inconsistent with due process. In re Marriage of Hampshire, 261 Kan. 854, 862, 934 P.2d 58 (1997); In re Marriage of Myers, 30 Kan. App. 2d 1223, 1225, 56 P.3d 1286 (2002). A void judgment may be vacated at any time. Hampshire, 261 Kan. at 862. Because a judgment is either valid or void as a matter of law, appellate courts have unlimited review. In re Adoption of A.A.T., 287 Kan. 590, 598, 196 P.3d 1180 (2008).

Effects of the void California judgment

Because California's modified support order is a void judgment, it cannot be the basis of the court's underlying decisions. A void judgment is an absolute nullity. Sramek, 17 Kan. App. 2d 573, Syl. ¶ 2. Yet the district court relied on that order, using it as a basis for its default judgment and arrearage determinations. This was error. See Garrett, 315 B.R. at 438 (finding "[b]ecause the August 1996 judgment issued by the Texas court is void for lack of subject matter jurisdiction, it obviously cannot serve as the foundation for the Debtor's objection that all arrearages arising from the California child support decree in favor of the Claimant have been satisfied"). The district court never lost its authority to enforce the Kansas support order. The district court could have ordered Chris to pay the arrearages he had accumulated pursuant to the Kansas order, as long as the parties' children were under the age of 18. But the district court could not rely on the void California modification to determine the amount of Chris' arrearages.

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In re Henson

The district court could also have modified the Kansas support order. But it did not do so, having relied on the California modification. Gina argues that she would have moved for modification in Kansas had she known the California modification was void. But we cannot remedy that problem now because child support obligations cannot be modified retroactively. "Instead, a modification of a parent's child support obligation may only operate pro- spectively because child support payments become final judgments on the dates that they are due and remain unpaid." In re Marriage of Kallenbach & Hedenkamp, No. 95,272, 2007 WL 656358, at *4 (Kan. App. 2007) (unpublished opinion). Gina also argues that Chris should not be able to raise an argument under K.S.A. 2019 Supp. 60-260(b)(5) (providing relief when an earlier judgment has been vacated) because the clean hands doctrine bars his claim. But we need not analyze the clean hands doctrine because Chris does not rely on K.S.A. 2019 Supp. 60-260(b)(5). Instead, he argues that under K.S.A. 2019 Supp. 60- 260(b)(4), the district court's decisions were void because they relied on the void California order. Lastly, Gina argues that the district court properly denied Chris' motion to set aside the default judgment and appropriately granted her 2016 motion to determine arrears. She argues that because the district court reached the correct result, it does not matter that the district court erroneously held that California had jurisdiction to modify the support order under the URESA. True, we can generally uphold a district court's judgment on appeal when the district court reached the correct result, despite its reliance on the wrong reason for its decision. State v. Hirsh, 310 Kan. 321, 338, 446 P.3d 472 (2019). But we cannot agree that the district court reached the correct result here, when it relied on a void judgment.

DID THE DISTRICT COURT ABUSE ITS DISCRETION IN DENYING CHRIS' REQUEST FOR SETOFF?

Chris next argues that the district court erred in denying his request for an equitable setoff. He alleges he overpaid his support obligation by $58,745.08 because the proper amount of child support he owed based on the Kansas order is less than the amounts he paid based on the California modification. Chris argues that

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In re Henson

Gina owes him for this overpayment, yet he acknowledges that he owes Gina for uninsured medical expenses and accrued interest. Gina disputes that Chris has overpaid and argues that he still owes the amounts determined by the district court in its 2018 decision. Gina also argues that Chris' claim should be barred by the clean hands doctrine because Chris has continuously failed to pay his support obligations, incurred arrearages, avoided collection for payment, failed to notify the court of his changes in income and address, and waited an unreasonably long time to seek the district court's review of the issues in his case.

Standard of review and basic legal principles

We review the district court's decision about an equitable setoff for an abuse of discretion. Mynatt v. Collis, 274 Kan. 850, 863, 57 P.3d 513 (2002). A judicial action constitutes an abuse of discretion if (1) it is arbitrary, fanciful, or unreasonable; (2) it is based on an error of law; or (3) it is based on an error of fact. Biglow v. Eidenberg, 308 Kan. 873, 893, 424 P.3d 515 (2018). In Mynatt, our Supreme Court reviewed the general legal principles for setoffs:

"First, setoff requires mutuality, meaning that the same parties owe a sum of money to each other. There must be at least two distinct debts or judgments that have matured at the time of the motion for setoff. The entities indebted to one another must both be parties to the litigation. In addition, the parties' judgments or debts must coexist, i.e., both must be determined, presently due, and owing at the time of setoff. A district court need not conduct a postjudgment evidentiary hearing unless it is clear mutual coexisting judgments are involved. Further, the party seeking equitable setoff must demonstrate equitable grounds for its application. The setoff must not prejudice intervening rights. Moreover, an equitable setoff will not be upheld on appeal where it contradicts public policy. Fi- nally, equitable setoff is not a legal right, but is a matter of grace, and the question whether a setoff should be decreed rests in the sound discretion of the court to which the application is made." 274 Kan. at 881. Because equitable setoff is not a legal right, but is a matter of grace, the denial of setoff based on a party's unclean hands is within the discretion of the district court. See New Dimensions Products, Inc. v. Flambeau Corp., 17 Kan. App. 2d 852, Syl. ¶ 5, 844 P.2d 768 (1993).

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In re Henson

The district court did not make adequate findings of fact on this issue.

In his response to Gina's 2016 motion, Chris argued that he had significantly overpaid his child support obligation. Chris also moved to terminate the income withholding order against him, arguing he should be granted a setoff in the amount of $92,341. The district court denied Chris' motion as time-barred and generally meritless. But the district court did not make adequate findings of fact to enable us to resolve this claim on appeal. The district court failed to explain why Chris' claim for a setoff was time-barred. And it based its finding that Chris' claim was meritless on the erroneous conclusion that Kansas lost continuing and exclusive jurisdiction to California from 1996 to 2009. The district court did not state an amount by which Chris may have overpaid his support obligation. Because we lack sufficient knowledge of the relevant facts and the equities essential to resolution of this claim, we reverse the district court's denial of Chris' motion for setoff and remand for its further consideration of this claim.

DID THE DISTRICT COURT ERR IN GRANTING GINA'S REQUEST FOR AN INCOME WITHHOLDING ORDER?

Chris argues that if we find the California judgment void, we must order the district court to stop any collection efforts against him. Gina counters that the district court properly denied Chris' motion to stay the income withholding order because Chris presented the district court with a legally invalid reason for a stay. This question of statutory interpretation presents a question of law over which we have unlimited review. Nauheim, 309 Kan. at 149. Gina correctly shows that because the district court established the amount of child support arrearages in its 2018 decision, the district court was required to issue an income withholding order. See K.S.A. 2019 Supp. 23-3103(a). Under K.S.A. 23-3106(a) the grounds for a stay are limited to "a mistake of fact in the notice concerning the amount of the order for support, the amount of the arrearage, the amount of income to be withheld or the proper identity of the obligor." Yet in his motion, Chris argued none of those—he argued only that the district court's income withholding order

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In re Henson would cause him a financial burden. And Chris failed to file an affidavit establishing his income and living expenses as required by Kansas Supreme Court Rule 139(b) (2020 Kan. S. Ct. R. 202). Because Chris failed to meet the applicable statutory provisions, the district court properly denied Chris' motion to stay the income withholding order. The district court may enforce the 1991 Kansas divorce decree as it deems appropriate, basing its ruling upon the 1991 order that Chris pay child support of $226/month from 1991 until June 30, 2009 (plus 50% medical). But because that withholding order was based on the void Cal- ifornia judgment, the withholding order is no longer enforceable. The district court will need to determine on remand the legal appropriateness of enforcing any future income withholding order.

THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION IN GRANTING GINA ATTORNEY FEES.

Chris also appeals the district court's most recent decision to grant Gina reasonable attorney fees. A district court may award attorney fees to either party as justice and equity requires under K.S.A. 2019 Supp. 23-2715. So we review its decision for an abuse of discretion. Wiles v. American Family Life Assurance Co., 302 Kan. 66, 81, 350 P.3d 1071 (2015); Rinehart v. Morton Buildings, Inc., 297 Kan. 926, 942, 305 P.3d 622 (2013). As Chris points out, the district court found that it had authority under K.S.A. 2019 Supp. 23-2715 and K.S.A. 2019 Supp. 23- 36,313 to award Gina a reasonable amount for attorney fees incurred for representation in this case since November 2014. Chris contends that Gina should not have prevailed on her motion to establish arrears and enforce the California order, so the district court erroneously relied on K.S.A. 2019 Supp. 23-36,313. See K.S.A. 2019 Supp. 23-36,313(b) (permitting reasonable attorney fees to a prevailing party). We find it unnecessary to address that argument because Chris fails to establish that the district court's award was an abuse of discretion under the alternative authority it cited—K.S.A. 2019 Supp. 23-2715. Under that statute, a district court has the authority in a divorce case to award costs and attorney fees to either party if the award is needed to achieve "justice and equity." The district

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In re Henson court's 2014 decision required Chris to take further action with regard to the California order. He failed to do so. Gina was com- pelled to do so only because Chris failed to comply with the district court's order. Under these and other circumstances of record, we find no abuse of discretion in the district court's award to Gina of reasonable attorney fees under K.S.A. 2019 Supp. 23-2715.

GINA IS NOT ENTITLED TO ATTORNEY FEES ON APPEAL.

Gina recently moved this court to award her $6,400 in attorney fees incurred in responding to Chris' appeal. Chris moved to strike Gina's motion because, among other matters, it failed to comply with Supreme Court Rule 7.07(b)(2) (2020 Kan. S. Ct. R. 50). That Rule requires the movant to attach an affidavit to its motion for fees. Gina then amended her motion for attorney fees. But her amended motion differed from her original motion only by adding a verification by her attorney, sworn to before a deputy clerk. Chris responded that the amended motion still lacked the necessary affidavit because the verification failed to comply with Su- preme Court Rule 7.07(b)(2). We agree. Supreme Court Rule 7.07(b)(2), a rule of appellate practice, states, as to a motion for attorney fees: "An affidavit must be attached to the motion specifying: (A) the nature and extent of the services rendered; (B) the time expended on the appeal; and (C) the factors considered in determining the reasonableness of the fee. (See KRPC 1.5 Fees.)" Kansas Supreme Court Rule 7.07(b)(2) (2020 Kan. S. Ct. R. 50-51). KRPC 1.5 (2020 Kan. S. Ct. R. 297) lists eight nonexclusive factors to be considered in determining the reasonableness of a fee. The fee motion by Gina's counsel fails to include any of the factors that Rule 7.07 requires a party to include in the affidavit in support of a motion for attorney fees. The motion attached a copy of an invoice stating the time expended on the appeal, and argua- bly, the nature and extent of services rendered. But no affidavit is attached, as is required, listing those matters and the required KRPC 1.5 fee factors. Nor does the attorney's verification of a motion, signed by a deputy clerk, constitute either an affidavit, or

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In re Henson a declaration under penalty of perjury, which has the same effect as an affidavit. See K.S.A. 53-601. Because the amended motion for attorney fees on appeal fails to comply with our rules, we deny it. And we deny as moot the original motion for attorney fees on appeal and the responsive motion to strike that motion.

CONCLUSION

We reverse and remand for further proceedings consistent with this decision.

VOL. 58 COURT OF APPEALS OF KANSAS 189

In re Care and Treatment of Ritchie

___

No. 121,627

In the Matter of the Care and Treatment of RANDALL RITCHIE.

___

SYLLABUS BY THE COURT

SEXUALLY VIOLENT PREDATOR ACT—Two Day Time Limit for Hearing Is Directory. The requirement in K.S.A. 2019 Supp. 59-29a08(k), that the court set a hearing within two working days of receipt of notice that a person in the Sexually Vio- lent Predator Treatment Program has been returned from transitional release to the secure commitment facility, is directory, not mandatory.

Appeal from Barton District Court; MIKE KEELEY, judge. Opinion filed May 1, 2020. Affirmed.

Randall Ritchie, appellant pro se.

Brant M. Laue, deputy solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., GREEN and BUSER, JJ.

ARNOLD-BURGER, C.J.: The district court civilly committed Randall Ritchie to Larned State Hospital as a sexually violent predator. After working through treatment, Ritchie was placed on transitional release. As part of transitional release, Ritchie had to abide by numerous rules and conditions. After several rule violations, Ritchie was removed from transitional release and returned to Larned State Hospital. Approximately 23 days later, the district court held a hearing to determine whether the State could establish probable cause that Ritchie violated the rules and conditions of his transitional release. After the hearing, the district court ruled that the State met its burden of proof and that the State had the authority to remove Ritchie from transitional release. On appeal, Ritchie argues that the district court lacked jurisdiction over the case because the district court did not hold the hearing within two days of receiving notice of his removal from transitional release as required by statute. He also asks this court to reweigh the evidence and find that the district court erred in its ruling. Because we find that the two-day statutory requirement is

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In re Care and Treatment of Ritchie directory and not mandatory and we cannot reweigh the evidence, we affirm.

FACTUAL AND PROCEDURAL HISTORY

The facts surrounding Ritchie's commitment to the Sexually Violent Predator Treatment Program are set out in In re Care & Treatment of Ritchie, 50 Kan. App. 2d 698, 699-701, 334 P.3d 890 (2014). In short, in 1994 Ritchie pled guilty to aggravated kidnapping after grabbing a 13-year-old girl and brutally raping her in a garage. Ritchie was paroled in 2001. In 2006, Ritchie got out of his car to stop an eight-year-old girl riding her bicycle and inserted a finger in her vagina. Four months later, Ritchie approached a young girl in Walmart and "'picked her up, twirled her around, and sat her down and walked off.'" 50 Kan. App. 2d at 700. The next day, Ritchie returned to Walmart and walked up to a young girl and inserted his finger into the girl's vagina. The girl screamed and Ritchie ran away. He was apprehended leaving the store. Ritchie eventually pled guilty to aggravated indecent solicitation of a child and went back to prison. After serving most of his prison sentence, in 2012 the State sought to commit Ritchie as a sexually violent predator under the Kansas Sexually Violent Predator Act, K.S.A. 59-29a01 et seq. The district court found that Ritchie was a sexually violent predator and committed him to the Larned State Security Hospital. This court upheld the district court's determination. 50 Kan. App. 2d at 701, 712. By July 2016, Ritchie had advanced to Phase 6 of the program. But just four months later he was returned to inpatient treatment due to rule violations. He challenged that decision, and in April 2017 the district court granted Ritchie's petition for transitional release. He remained in transitional release until February 25, 2019, when he was removed from the transitional release program for a second time and returned to Larned State Hospital. His return to Larned State Hospital was based on a report from his Progress Review Panel (Panel). According to the Panel, Ritchie was "a danger to the general public and past victims, due to therapeutic, safety and security reasons." The Panel's report listed several incidents where Ritchie violated the rules of his transitional release. For example, Ritchie

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In re Care and Treatment of Ritchie engaged in unapproved online shopping. While he was at work, Ritchie ordered a lamp from Amazon and then tried to get approval for the purchase from his reintegration director. He was not approved to purchase the lamp. When the lamp arrived, the reintegration director reviewed Ritchie's Amazon account and found that he had recently viewed "pictures of scantily women dressed in bikinis and bikini tops with short shorts." Ritchie also sought, and was denied, permission to speak with his ex-wife, after having already contacted her. Ritchie had listed his ex-wife as one of his victims. One of the conditions of his transitional release plan was to have no contact with his victims. There was also an issue with Ritchie texting or calling a fe- male coworker. Ritchie had reported having sexual thoughts about the coworker and, according to his logbook, he had called or texted her over 50 times in a one-week period. According to Ritchie, the calls or texts were work related. But the Panel noted that he did not have as many calls or texts with other coworkers or his supervisor. The Panel also detailed an incident at a Starbucks. Ritchie was sitting at a low chair "in direct line of sight of three young females, likely teenagers who were wearing shorts and all sitting on high chairs." There was concern that Ritchie's low seating put him in a position to see under the females' shorts. When the situation was addressed with Ritchie, he reported not seeing this as a high-risk situation and said that he had no choice where to sit. Throughout the Panel's report there was a general concern that Ritchie was duplicitous, failed to take responsibility for his actions, and often sought forgiveness rather than permission. The Panel recommended that Ritchie be returned to the inpatient portion of the Sexually Violent Predator Treatment Program to "assist him in more intensely addressing multiple issues threatening community safety while also providing the community with enhanced safety while these serious behavioral issues are addressed." The district court was given notice of Ritchie's return to commitment on February 26, 2019. On February 28, 2019, the State moved to extend the time to set the K.S.A. 2019 Supp. 59- 29a08(k) probable cause hearing. According to the State's motion, both parties needed time to accommodate counsels' and witnesses'

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In re Care and Treatment of Ritchie schedules. On March 5, 2019, Ritchie moved the district court to order him returned to transitional placement arguing that he was prejudiced, and the court lacked jurisdiction over the State's notice of return, because the court did not hold a hearing within two working days of receiving notice that he was returned to Larned State Hospital. The district court held a hearing relating to Ritch- ie's return to commitment on March 21, 2019. At the start of the hearing, the district court denied Ritchie's motion and went on to allow the parties to call witnesses. The State called Ritchie, his transitional release house director, and two psychologists who evaluated Ritchie. The State's witnesses largely explained the events that led to the written recommendation that Ritchie be returned to inpatient treatment. Ritchie also testified on his own behalf. The district court issued its written journal entry on March 25, 2019. The district court found that probable cause existed to show that Ritchie violated the rules of transitional release and should be returned to Larned State Hospital.

"The Court finds the respondent has not been as truthful to his supervisors and treating psychologist as required under the rules. The Court finds his discussion with Dr. Schlosberg in regards to whether he did or did not quit his job was eva- sive, if not deceitful. The same would apply in regards to the respondent's communications with a landlord where he was attempting to obtain housing. It seems clear he did not explain to the landlord that he was in a sexual predator treatment program. The respondent has used the internet at work and there is some indication there was viewing of inappropriate material. The respondent had contact with his ex-wife, and although they had previous had contact, he failed to report this to his supervisors prior to having the contact. He later told them he was wanting to have contact with her. This is the same situation in regards to the purchase of something that seems to be innocuous and appropriate, that being a lamp for his current wife; however, he was to obtain permission before doing so and the evidence shows he bought the lamp and then asked for permission later. He attempted to influence another resident to purchase a house, which he knew was inappropriate. Even though he said he only talked with the resident and then withdrew his request, it was an attempt to manipulate another resident. There was disagreement as to whether he should have purchased a teddy bear for his wife and whether he had permission. There was a disagreement in regards to cruelty to animals. He indicated he believed he was given permission to kill some turtles, but he misinterpreted the statements made by the staff. There was disagreement and misinterpretation by the respondent in regards to a travel plan and when he was texting a co-worker. He thought he had the opportunity to text a coworker as this is something he would always do as a supervisor; however, there

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In re Care and Treatment of Ritchie were approximately 50 texts. There was a disagreement whether this was appropriate or not and whether this was an attempt to manipulate or contact a coworker. "The Court understands some of the issues and allegations of violations could have been from misinterpretation or misunderstanding. However, the respondent has been involved in the program for several years and knows he must follow each and every rule very specifically. The Court agrees with the respondent that some of the rules seem to be controlling, but there are rules, and over the last few months, the evidence indicates the respondent has not followed the rules and seems to push back against his supervisors."

Ritchie's attorney filed a motion for reconsideration. Shortly after, Ritchie sent the district court a pro se letter contesting the evidence the State offered. He then filed a pro se motion for polygraph examination seeking to show that he was "not likely to commit predatory acts of sexual violence if released and to properly establish evidence to justify a new hearing and to provide evidence which would prove the petitioner's innocence in regards to defendant's allegations." On the same day Ritchie filed his pro se motion, his counsel moved to withdraw as counsel—which the district court later allowed. A short time later, Ritchie moved to proceed pro se. Ritchie then filed two amended pro se motions requesting that the court grant him a new trial, alter or amend its judgment, or give him relief from its judgment. The district court denied Ritch- ie's motions in their entirety. But the district court did allow Ritchie to hire a private polygraph examiner who could subject Ritchie to a polygraph examination while he was in Larned State Hospital. Ritchie timely appeals from the district court's judgement to return him to the secure commitment from transitional release. Af- ter Ritchie filed his notice of appeal, he participated in a polygraph examination. As part of his polygraph examination, Ritchie wrote a four-page statement contesting the Panel's findings. Generally, Ritchie either outright denies the Panel's findings or explains that there was a misunderstanding or misinterpretation of events leading to rule violations. Ritchie read his statement to the polygraph examiner and then the examiner asked whether his statement was truthful—two times with different phrasing each time. He answered "'Yes'" each time. The polygraph examiner's opinion was that Ritchie's responses did not suggest deception.

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ANALYSIS

The statutory requirement that the district court schedule a hearing within two working days of Ritchie's return to the secure commitment facility from transitional release is directory not mandatory.

Ritchie's first issue on appeal is that the district court violated his statutory rights by scheduling a hearing about his removal from transitional placement more than two days after receiving notice that Ritchie was removed from transitional placement. See K.S.A. 2019 Supp. 59-29a08(k) ("The court shall set the matter for a hearing within two working days of receipt of notice of the person's having been returned to the secure commitment facility."). There is no dispute that Ritchie's hearing took place more than two working days after his return to Larned. Ritchie argues this delay deprived the district court of jurisdiction to hear the case. To decide whether Ritchie is correct, we must interpret the provisions of K.S.A. 2019 Supp. 59-29a08(k) and determine whether the "two working days" requirement is mandatory or directory. Statutory interpretation presents a question of law over which appellate courts have unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). Upon reviewing the provisions of the Sexually Violent Pred- ator Act (SVPA), we conclude that the provision is directory. As stated in the SVPA "any time requirements set forth in K.S.A. 59- 29a01 et seq., and amendments thereto, either as originally enacted or as amended, are intended to be directory and not mandatory and serve as guidelines for conducting proceedings under K.S.A. 59-29a01 et seq." K.S.A. 2019 Supp. 59-29a01(b). So the Legislature has directed that time requirements in the SVPA are not mandatory, instead they serve as guidelines. This court addressed a similar issue in In re Care & Treatment of Hunt, 32 Kan. App. 2d 344, 82 P.3d 861 (2004). We applied the "directory and not mandatory" language to hold the district court did not lose subject matter jurisdiction for failing to hold a trial within 60 days of the initial probable cause determination. 32 Kan. App. 2d at 361, 365.

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That said, Kansas courts have not addressed the "directory and not mandatory" language in K.S.A. 2019 Supp. 59-29a01 in relation to the two-day requirement in K.S.A. 2019 Supp. 59- 29a08(k). But like this court held in In re Hunt, a failure to hold a hearing within a directory time limit does not divest the district court of jurisdiction to hear the case. See K.S.A. 2019 Supp. 59- 29a01(b); 32 Kan. App. 2d at 365. Given the clear statement that any time requirement within the SVPA is directory and not mandatory, the district court did not lose jurisdiction over Ritchie's case even though the district court did not hold a hearing within two days of the court receiving notice of Ritchie's return to Larned State Hospital. See K.S.A. 2019 Supp. 59-29a01(b); K.S.A. 2019 Supp. 59-29a08(k).

The district court did not violate Ritchie's constitutional rights when it delayed his probable cause hearing.

Ritchie also argues that the district court violated his constitutional rights because it held the probable cause hearing more than two days after the district court was notified that he was returned to Larned State Hospital. Essentially, he argues that the district court deprived him of a liberty interest without due process and denied him a right to a speedy trial. Ritchie raised his constitutional argument for the first time in his amended motion for new trial. Because he did not raise it during the evidentiary hearing, there was no opportunity for the court to address the factual claims he made in his motion. In his brief, he states:

"The Court mentioned it needed the delay for scheduling and gathering witnesses. Yet, this delay hampered Mr. Ritchie's defense. The only witnesses who testified were Dr. Quillen, Dr. Schlosberg and Debra Day. Their days are not so busy that they could not have freed up a day to afford Mr. Ritchie his right to a hearing within two working days. Because of electronic filing the subpoenas could have been filed and served in one day. The State had their case together before they returned Mr. Ritchie to Larned State Hospital. The fact the State served the written rule violation report the day of Mr. Ritchie's return is proof of that."

Yet the district court did have a chance to address Ritchie's arguments when he raised them in his amended motion for new trial. The district court did so, without seeking new evidence,

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In re Care and Treatment of Ritchie when it denied Ritchie's motion. Although the district court's order did not provide any findings of fact for this court to review, Ritchie bears the burden to object to inadequate findings of fact. See McIntyre v. State, 305 Kan. 616, 618, 385 P.3d 930 (2016). Because he failed to do so, this court can presume the district court found all facts necessary to support its judgment. See State v. Jones, 306 Kan. 948, 959, 398 P.3d 856 (2017). That said, Ritchie's legal claim—that the district court deprived him of a liberty interest without due process and denied his right to a speedy trial—is not persuasive. Under the Due Process Clause of the Fourteenth Amendment to the United States Consti- tution, no state shall "deprive any person of life, liberty, or property, without due process of law." The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner. Mathews v. Eldridge, 424 U.S. 319, 333, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). "[W]hether due process was provided under specific circumstances raise[s] [an issue] of law, and an appellate court's review is unlimited." Alliance Mort- gage Co. v. Pastine, 281 Kan. 1266, 1272, 136 P.3d 457 (2006). Ritchie relies solely on In re Care & Treatment of Ellison, 305 Kan. 519, 385 P.3d 15 (2016), to support his argument that the district court violated his constitutional rights. His reliance is misplaced. There, the State petitioned to civilly commit Ellison as a sexually violent predator. The district court concluded that there was probable cause that Ellison was a sexually violent predator. The trial to determine whether Ellison should be committed as a sexually violent predator was supposed to occur within 60 days of the probable cause finding. Even so, because of several continu- ances, there was a delay of over four years between the probable cause determination and the scheduled trial date. The Kansas Supreme Court held that Ellison's constitutional rights were violated by the long pretrial delay. 305 Kan. at 541- 42. Using an analysis drawn from a criminal case, Barker v. Wingo, 407 U.S. 514, 530, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972), the court found that the length of the delay was the triggering mechanism for a constitutional violation. Ellison, 305 Kan. at 534- 35. The parties agreed that four years was presumptively prejudi- cial. The same cannot be said for the delay here. The district court had already found Ritchie to be a sexually violent predator. The

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In re Care and Treatment of Ritchie district court held the hearing related to his removal from transitional release after only one continuance requested by the State to obtain witnesses. The district court necessarily believed the continuance to be warranted. Moreover, it occurred a mere 23 days after the district court was notified of Ritchie's return to Larned State Hospital. The district court provided Ritchie a full evidentiary hearing. We find that the district court did not violate Ritch- ie's constitutional rights under these circumstances.

The district court did not err by denying Ritchie's motion to return to transitional placement.

Ritchie's last three issues are basically the same. In essence, Ritchie argues that the district court erred by ruling against him because (1) his counsel was ineffective for failing to file certain motions or present certain evidence; (2) the State's evidence was not credible, and (3) he established probable cause that his mental abnormality or personality disorder was changed so that he was safe for conditional release. His arguments largely rely on this court reweighing evidence that the parties presented, or that he wished the parties presented, below. When the sufficiency of the evidence is challenged, the appellate court does not reweigh the evidence or pass on the credibility of witnesses. We will not disturb a lower court's factual findings when they are supported by substantial competent evidence. See In re Care & Treatment of Snyder, 308 Kan. 626, 639, 422 P.3d 85 (2018). To begin, Ritchie seems to confuse the requirements for a sexually violent predator treatment program patient to be released on conditional release with what the State must prove to revoke that release and return a patient to Larned State Hospital. For example, Ritchie argues several times that he has "established probable cause his mental abnormality and/or personality disorder has changed so that he is safe for Conditional Release." Whether Ritchie was an appropriate candidate for conditional release is not what the district court was tasked with addressing here. The issue before the district court was whether Ritchie violated the rules while he was on transitional release. See K.S.A. 2019 Supp. 59- 29a08(k); see also K.S.A. 2019 Supp. 59-29a08(a)-(d); K.S.A.

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2019 Supp. 59-29a10 (addressing procedure leading to transitional and conditional release). Transitional release staff may remove a person from transitional release if they conclude that the person has broken a single rule, regulation, or directive associated with the transitional release program. K.S.A. 2019 Supp. 59-29a08(j). After the person is removed, the State must prove to the district court that there was "probable cause that the person violated conditions of transitional release." K.S.A. 2019 Supp. 59-29a08(k). A list of the rules that Ritchie was required to follow was in the exhibits offered to the district court at trial. One of the rules included a prohibition on viewing "any sexually explicit or erotic materials." The State offered evidence that Ritchie viewed an item on Amazon that could be described as erotic—the item included a picture of a woman wearing short shorts and a bra or bikini top. It was undisputed that Ritchie ordered a lamp from Amazon without asking permission in advance, as required by the program rules. Another rule stated that Ritchie was not to "have contact with the victim(s) . . . by any means." But Ritchie met with his ex- wife—a person he listed as one of his victims—without asking permission. As a condition of his release status, Ritchie was not allowed to leave the state of Kansas. According to the rules listed in the Reintegration Facilities Handbook, "A rule violation will be issued if it is determined that a resident has left the state of Kansas or otherwise crossed state lines, even for a short period of time." The State presented evidence that Ritchie traveled to Missouri while looking for another job. Without going into detail on each violation, the State also presented evidence that Ritchie was dishonest, misleading, or lacked candor when talking to staff or other residents on several occasions. For example, Ritchie attempted to get another resident to get a home mortgage in Ritchie's name and title the home in Ritch- ie's name and hide it from staff. After it was discovered, Ritchie made a veiled threat to the resident. Ritchie's attitude and actions violated the requirement that

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"[r]esidents . . . demonstrate attitudes that facilitate rather than deter the treatment change process. Attitudes facilitating the treatment change process include being open and transparent, asking questions, using active listening, and being open to suggestions for making positive change. Deterring examples include, but are not limited to, omitting information, lying, being deceitful, or using derogatory or demeaning language."

Although Ritchie contends that the State's evidence did not show there was probable cause that he violated the terms of his transitional release, many of his arguments rely on his assertion that the State's witnesses fabricated the evidence against him and lied while testifying. But this is nothing more than a request that this court reweigh the evidence presented to the district court, which this court will not do. See Snyder, 308 Kan. at 639. Ritchie also argues that he refuted each of the State's reported rule violations by writing a statement and then submitting to a polygraph examination on the truthfulness of his written statement. Without addressing the substance of Ritchie's statement, or weigh- ing the statement against the State's evidence, the district court lacked the ability to consider the statement or polygraph examination before reaching a decision here. The polygraph was administered on June 26, 2019, and the letter sent to Ritchie regarding the results was dated June 27, 2019. This was several months after the district court held the initial hearing and issued its written order. It was three weeks after the court entered its order denying his post-hearing motions. And it was approximately two weeks after he filed his notice to appeal. The district court did not have a chance to consider the examination at the hearing, and we are prohibited from doing so now. See Wolfe Electric, Inc. v. Duckworth, 293 Kan. 375, 403, 266 P.3d 516 (2011) (issues not raised before the trial court cannot be raised on appeal). Finally, Ritchie argues that his counsel was ineffective. He couches his ineffectiveness arguments on the assertion that his attorney failed to file motions, present evidence, or question witnesses in the manner that Ritchie desired. But Ritchie was present at the hearing and made no assertion that he was displeased with his counsel at the time. Ritchie fails to show how, had his counsel done as Ritchie wished, the outcome of the hearing would have been different. The State presented evidence that Ritchie violated the conditions of his transitional release. A single violation was

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In re Care and Treatment of Ritchie enough for the State to remove Ritchie from transitional release. See K.S.A. 2019 Supp. 59-29a08(j). After viewing the evidence in a light most favorable to the State and without reweighing the evidence or the credibility of the witnesses, there was sufficient evidence to support the district court's conclusion that probable cause existed to show that Ritchie violated the conditions of his transitional release. See Snyder, 308 Kan. at 639.

Affirmed.