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. 2

Opinions filed in May - July 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, JR¹...... 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 LEBEN² ...... 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

¹Judge Pierron retired March 6, 2020 ²Judge Leben retired June 26, 2020

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. 2

PAGE

Brungardt v. Kansas Dept. of Revenue ...... 284 Cooper Clark Foundation v. Oxy USA...... 335 Harder v. Estate of Foster ...... 201 Schmitendorf v. Taylor ...... 292 State v. Contreras ...... 255 State v. Little ...... 278 State v. Maberry ...... 215 State v. Mejia ...... 229 State v. Robison ...... 380 Thoroughbred Assoc. v. Kansas City Royalty Co...... 306 University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ...... 367

(IV) UNPUBLISHED OPINIONS OF THE COURT OF APPEALS

DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

Bernhardt v. State ...... 121,018 Sedgwick ...... 06/12/2020 Vacated; remanded with directions Bloom v. Kansas Prisoner Review Bd...... 122,001 Butler ...... 06/26/2020 Affirmed Bunyard v. Affiliated Medical Svcs. Lab...... 119,989 Sedgwick ...... 06/19/2020 Affirmed Cabrera-Sanchez v. State .... 121,510 Wyandotte ...... 06/26/2020 Affirmed Denney v. Norwood ...... 121,888 Labette ...... 06/19/2020 Affirmed Espinoza v. Kansas Dept. of Revenue ...... 120,662 Seward ...... 05/15/2020 Affirmed Fisher v. State ...... 121,462 Lyon ...... 07/02/2020 Affirmed Frost v. Sauers ...... 122,022 Ellsworth...... 05/29/2020 Affirmed Frost v. State ...... 121,031 Sedgwick ...... 05/08/2020 Affirmed Gould v. Wright Tree Service ...... 120,540 Leavenworth ...... 06/19/2020 Affirmed Griffin v. State ...... 121,147 Lyon ...... 05/22/2020 Affirmed in part; vacated in part In re A.C...... 121,950 Barton ...... 05/15/2020 Affirmed In re A.P...... 121,913 Leavenworth ...... 06/05/2020 Affirmed In re A.P...... 122,288 Shawnee ...... 06/26/2020 Affirmed In re Equalization Appeals of Affirmed in part; Kansas Star Casino...... 119,438 BOTA ...... 05/08/2020 vacated in part; remanded with directions In re Equalization of Ruffin Woodlands ...... 120,705 BOTA ...... 07/02/2020 Affirmed in part; dismissed in part In re Estate of Ramsey ...... 121,624 Chautauqua ...... 07/02/2020 Affirmed In re G.M...... 121,254 Sedgwick ...... 05/15/2020 Affirmed In re G.W...... 122,202 Johnson ...... 05/15/2020 Affirmed In re I.G...... 122,009 Clay ...... 05/08/2020 Affirmed In re J.L...... 122,262 122,263 122,264 Miami ...... 06/19/2020 Affirmed In re J.S...... 121,485 Geary ...... 06/12/2020 Appeal dismissed In re K.H...... 121,364 Sedgwick ...... 05/29/2020 Affirmed In re K.J.S...... 122,041 Butler ...... 05/08/2020 Affirmed In re Marriage of Berry ...... 121,479 Sedgwick ...... 06/19/2020 Affirmed in part; reversed in part; remanded with directions

(V)

DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

In re Marriage of Brownback………………. 121,089 Linn ...... 05/08/2020 Affirmed In re Marriage of Calvert .... 121,724 Johnson ...... 06/12/2020 Affirmed In re Marriage of Fellers .... 121,011 Saline ...... 05/15/2020 Affirmed in part; dismissed in part In re Marriage of Goodpasture...... 121,512 Atchison ...... 06/05/2020 Affirmed In re Marriage of Guha...... 119,312 Douglas ...... 06/05/2020 Affirmed In re Marriage of Nelson .... 120,745 Saline ...... 05/08/2020 Affirmed In re Marriage of Weyhrich 122,183 Montgomery...... 06/05/2020 Affirmed in part; dismissed in part In re N.O...... 122,292 Seward ...... 05/29/2020 Affirmed In re Name Change of Peterson ...... 121,333 Reno ...... 06/12/2020 Reversed; remanded In re P.H...... 121,808 Sedgwick ...... 06/05/2020 Affirmed In re P.H...... 121,869 Sedgwick ...... 06/26/2020 Affirmed In re Tax Appeal of City of Council Grove...... 121,005 BOTA ...... 06/19/2020 Reversed; remanded In re Z.T...... 122,189 Riley ...... 06/19/2020 Affirmed in part; vacated in part; remanded with directions Johnson v. State ...... 120,688 Sedgwick ...... 05/15/2020 Affirmed Johnson v. State ...... 121,993 Butler ...... 06/12/2020 Affirmed Jones v. State ...... 121,006 Sedgwick ...... 05/22/2020 Affirmed Kincaid v. Kubota Tractor Corp...... 120,950 Reno ...... 06/05/2020 Reversed; remanded with directions Lingenfelter v. State ...... 120,837 Sedgwick ...... 06/19/2020 Affirmed Loggins v. State ...... 121,019 Sedgwick ...... 06/12/2020 Affirmed McClintick v. Sauers ...... 121,867 Ellsworth...... 05/15/2020 Affirmed Minges v. Kansas Behavioral Sciences Regulatory Bd. . 121,644 Shawnee ...... 05/29/2020 Affirmed Mobley v. Werholtz ...... 122,150 Ellsworth...... 06/26/2020 Affirmed Neer v. State ...... 121,049 Sedgwick ...... 06/12/2020 Affirmed Newborn v. State ...... 120,936 Sedgwick ...... 06/12/2020 Affirmed Nickle v. Welborn ...... 121,753 Sedgwick ...... 06/19/2020 Affirmed Pena-Gonzales v. State ...... 121,581 Shawnee ...... 06/26/2020 Affirmed Prellwitz Construction v. Jones ...... 121,470 Shawnee ...... 07/02/2020 Affirmed Rindt v. Schnurr ...... 122,125 Reno ...... 06/05/2020 Affirmed Rodriguez v. State ...... 121,138 Lyon ...... 06/12/2020 Affirmed Schmitendorf v. Taylor ...... 120,865 Douglas ...... 06/19/2020 Affirmed

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

Scott v. Kansas Dept. of Revenue ...... 120,717 Harvey ...... 05/08/2020 Affirmed Shriver v. Kansas Dept. of Revenue ...... 120,891 Shawnee ...... 06/26/2020 Affirmed State v. Barnaby ...... 121,228 Sedgwick ...... 07/02/2020 Affirmed in part; vacated in part; remanded with directions State v. Belt ...... 121,257 Shawnee ...... 06/19/2020 Affirmed State v. Blyth ...... 120,502 Johnson ...... 06/12/2020 Affirmed State v. Bojorquez-Carrasco 120,567 Grant ...... 05/15/2020 Affirmed State v. Bollig (modified opinion) ...... 120,398 Trego ...... 06/29/2020 Reversed; remanded with directions State v. Bott ...... 120,970 Saline ...... 06/26/2020 Remanded with directions State v. Bowen ...... 121,274 Lyon ...... 07/02/2020 Affirmed State v. Brewer ...... 121,973 Sedgwick ...... 07/02/2020 Affirmed State v. Bull ...... 121,946 Sedgwick ...... 05/08/2020 Affirmed in part; dismissed in part State v. Burnett ...... 120,205 Reno ...... 05/15/2020 Affirmed State v. Cacek ...... 121,985 Sedgwick ...... 05/08/2020 Appeal dismissed State v. Carlton ...... 119,985 Montgomery...... 06/26/2020 Reversed in part; vacated in part; remanded with directions State v. Cole ...... 121,106 Reno ...... 06/05/2020 Affirmed State v. Coleman ...... 120,568 120,569 120,570 120,571 Douglas ...... 05/22/2020 Affirmed State v. Cordero ...... 121,148 Stevens ...... 05/08/2020 Affirmed State v. Daniels ...... 121,214 Atchison ...... 07/02/2020 Affirmed State v. Davis ...... 121,662 Saline ...... 07/02/2020 Affirmed State v. Deffenbaugh ...... 122,085 Sumner ...... 07/02/2020 Appeal dismissed State v. Deffenbaugh ...... 122,084 Sumner ...... 07/02/2020 Affirmed State v. Elliott ...... 122,178 Clay ...... 06/26/2020 Affirmed State v. Endinger ...... 121,446 Sedgwick ...... 05/29/2020 Affirmed State v. Genzel ...... 120,602 Riley ...... 06/26/2020 Reversed; remanded with directions State v. Gilmore ...... 118,769 Johnson ...... 05/08/2020 Affirmed State v. Gonzalez ...... 121,142 Ford ...... 07/02/2020 Affirmed State v. Gooch ...... 121,039 Reno ...... 06/05/2020 Affirmed State v. Harris ...... 121,152 Johnson ...... 06/12/2020 Affirmed State v. Harris ...... 120,732 Shawnee ...... 05/22/2020 Affirmed

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DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

State v. Hayes ...... 120,801 Sedgwick ...... 07/02/2020 Affirmed in part; vacated in part; remanded with directions State v. Hogue ...... 121,813 Wyandotte ...... 06/26/2020 Affirmed State v. Hunter ...... 120,511 Douglas ...... 05/29/2020 Reversed; remanded with directions State v. Hunter ...... 121,992 Wyandotte ...... 06/19/2020 Appeal dismissed State v. Jeffrey ...... 120,817 Saline ...... 06/19/2020 Affirmed State v. Jones ...... 119,764 Sedgwick ...... 06/26/2020 Affirmed in part; reversed in part; sentence vacated; remanded with directions State v. Jones ...... 121,798 Sedgwick ...... 06/19/2020 Affirmed State v. Kolter ...... 120,223 Shawnee ...... 05/08/2020 Affirmed State v. Long ...... 120,624 Reno ...... 06/26/2020 Affirmed State v. Lovett...... 121,287 Johnson ...... 07/02/2020 Affirmed in part; reversed in part; vacated in part; remanded with directions State v. Mata-Deras ...... 120,959 Wyandotte ...... 05/22/2020 Affirmed State v. McHenry ...... 119,230 Reno ...... 05/15/2020 Affirmed State v. Miller ...... 120,476 Johnson ...... 05/08/2020 Affirmed State v. Moore ...... 119,521 Sedgwick ...... 05/22/2020 Affirmed State v. Moreno ...... 121,597 Wyandotte ...... 05/08/2020 Affirmed in part; dismissed in part State v. Morris ...... 121,388 Johnson ...... 05/22/2020 Affirmed State v. Pappada ...... 120,760 Saline ...... 06/05/2020 Affirmed State v. Pederson ...... 118,209 Wyandotte ...... 06/26/2020 Affirmed State v. Proveaux ...... 121,608 Ellsworth...... 05/08/2020 Affirmed State v. Queen...... 120,643 Douglas ...... 07/02/2020 Convictions reversed; sentences vacated; case dismissed State v. Ricke ...... 119,854 Sedgwick ...... 05/29/2020 Affirmed State v. Rodriguez ...... 121,078 Sedgwick ...... 05/29/2020 Affirmed State v. Schierkolk ...... 121,020 Shawnee ...... 06/05/2020 Affirmed State v. Schmidt ...... 120,770 Sedgwick ...... 05/29/2020 Affirmed State v. Sinclair ...... 120,677 Douglas ...... 05/08/2020 Affirmed State v. Smith ...... 121,267 Johnson ...... 06/05/2020 Affirmed

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

State v. Smith ...... 118,042 Sedgwick ...... 05/15/2020 Sentence vacated; case remanded with directions State v. Smith ...... 121,176 Chase ...... 05/29/2020 Affirmed State v. Spencer ...... 120,902 Sedgwick ...... 05/08/2020 Affirmed State v. Stuckey ...... 121,231 Wyandotte ...... 06/05/2020 Affirmed State v. Suttle ...... 121,346 121,347 121,348 Sedgwick ...... 05/29/2020 Sentence vacated State v. Suttle ...... 121,349 Sedgwick ...... 05/29/2020 Affirmed State v. Thomas ...... 121,772 Sedgwick ...... 06/26/2020 Affirmed in part; 121,773 dismissed in part State v. Thompson ...... 117,885 Leavenworth ...... 06/12/2020 Affirmed in part; reversed in part; remanded with directions State v. Thornton ...... 120,028 Douglas ...... 05/15/2020 Affirmed State v. Throne...... 119,428 Douglas ...... 06/05/2020 Affirmed State v. Timmons ...... 120,251 Sedgwick ...... 05/15/2020 Affirmed in part; sentence vacated; remanded with directions State v. Tippetts ...... 120,397 Sedgwick ...... 06/05/2020 Affirmed State v. Torres...... 121,415 121,416 121,417 Ford ...... 06/26/2020 Affirmed State v. Vasquez ...... 120,807 Sedgwick ...... 05/08/2020 Sentence vacated; remanded with directions State v. White ...... 121,558 Sedgwick ...... 05/08/2020 Affirmed State v. Whitehead-King .... 120,986 Sedgwick ...... 06/05/2020 Reversed; remanded with directions State v. Willis ...... 121,762 Harvey ...... 07/02/2020 Affirmed State v. Wirths ...... 120,202 Sedgwick ...... 07/02/2020 Affirmed State v. Wood ...... 119,096 Sedgwick ...... 05/08/2020 Affirmed State v. Young ...... 120,348 Sedgwick ...... 05/08/2020 Reversed; remanded with directions Straightline HHD v. Smart E- Solutions ...... 121,113 Reno ...... 05/08/2020 Reversed; remanded with directions

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DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

Ternes v. Board of Sumner County Comm'rs ...... 119,073 Sumner ...... 06/12/2020 Affirmed in part; reversed in part; remanded with directions Waddell v. State ...... 120,800 Lyon ...... 05/15/2020 Affirmed Wheeler v. Kansas Prisoner Review Bd...... 121,764 Ellsworth...... 05/22/2020 Appeal dismissed White v. State ...... 121,755 Leavenworth ...... 05/22/2020 Reversed; remanded with directions Young v. State ...... 121,397 Wyandotte ...... 05/29/2020 Affirmed

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

(Cumulative for Advance Sheets 1 and 2) Subjects in this Advance Sheets are marked with *.

PAGE

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-gen- erating measure. In re Tax Appeal of River Rock Energy Co. ……………..… 98

Constitutional Issue Deemed Waived if Not Raised before District Court— Appellate Review. Generally, a constitutional issue not raised before the district court is deemed waived or abandoned. Nevertheless, appellate courts can review

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XII SUBJECT INDEX 58 KAN. APP. 2d

PAGE

issues presented on appeal where: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the district court is right for the wrong reason. However, even if an exception would support a decision to review a new claim, appellate courts have no obligation to do so. State v. Robison ……………………………………….….…. 380*

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 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

Due Process Requires Substantial Compliance With Service Requirement under Rule 134(a). To satisfy the Due Process Clause of the Fourteenth Amend- ment to the United States Constitution and Section 18 of the Kansas Constitution Bill of Rights, substantial compliance with Supreme Court Rule 134(a) is required before the time to file a notice of appeal begins to run on the denial of a motion to withdraw plea. As a result, a defendant is entitled to file an out-of-time appeal if the district court does not substantially comply with the service requirement set forth in Rule 134(a). State v. Maberry ……………….…….………………. 215*

Invited Error May Preclude Party Challenging Ruling on Appeal. If a party invites or encourages a district court to commit error or proceed in a particular way, that party is generally precluded from challenging such ruling on appeal. Harder v. Estate of Foster ………………………………………..……….. 201*

Law of the Case Doctrine—To promote judicial efficiency, the law of the case doctrine provides that an appellate court's decision on a legal issue is binding on both the district court and the parties on remand. Harder v. Estate of Foster ………………………………………...……..... 201*

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

ATTORNEY FEES:

Determination of Attorney Fees and Expenses by District Courts. District courts are experts in determining reasonable attorney fees and expenses using the methodology set forth in Kansas Rule of Professional Conduct 1.5(a) (2020 Kan. S. Ct. R. 297). Harder v. Estate of Foster ……………………………....….. 201*

58 KAN. APP. 2d SUBJECT INDEX XIII

PAGE

CIVIL PROCEDURE:

Certification of Class Action Lawsuit—District Court's Discretion—Appel- late Review. The district court has considerable discretion in deciding whether certification of a class-action lawsuit is appropriate. If the court considers the relevant factors listed in K.S.A. 2019 Supp. 60-223, the appellate court reviews the decision only for abuse of discretion. The district court abuses its discretion if its decision is based on legal or factual error, or if its discretion is arbitrary or unreasonable. Factual findings must be supported by substantial evidence; underlying legal issues are reviewed independently, with no required deference to the district court. Cooper Clark Foundation v. Oxy USA ……………………..…….…. 335*

CONSTITUTIONAL LAW:

Claim of Equal Protection Violation—Determination. A party claiming an equal-protection violation has to show that he or she is similarly situated to members of a class receiving different treatment. When determining whether groups are similarly situated, a court must consider any legitimate purposes of the classification. State v. Little …………………………………………………...……. 278*

Fifth Amendment Privilege against Self-incrimination. The Fifth Amend- ment to the United States Constitution operates only where a witness is asked to incriminate himself or herself; that is, to give testimony which could possibly expose the witness to a criminal charge. State v. Contreras …………….…… 255*

— Limitations. If a sentence has been imposed for a crime, or if the court has dismissed a count with prejudice, the Fifth Amendment privilege against self-incrimination ends and the witness may be compelled to testify to the facts underlying the conviction and the dismissed charge. State v. Contreras ……..… 255*

Fourteenth Amendment—Equal Protection Clause. The Equal Protection Clause requires that all who are similarly situated be treated alike under the law. State v. Little ……………………………………………………...……….278*

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

Right to Compel Witness to Testify—Appellate Review. The constitutional right to compel a witness to testify is subject to a harmless error analysis. State v. Contreras …………………………………………….………….. 255*

XIV SUBJECT INDEX 58 KAN. APP. 2d

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Right to Jury Trial is A Constitutional Right. The right to a jury trial is a right under both Section 5 of the Kansas Constitution Bill of Rights and under the Sixth Amendment to the United States Constitution. State v. Robison ……………. 380*

CONTRACTS:

American Rule Followed in Kansas. Kansas follows the American rule under which each party is responsible for paying its own attorney fees and expenses unless a statute or contract specifically authorizes assessment of those fees to the other party. Harder v. Estate of Foster ………………………………………..… 201*

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 ob- taining a tradename and searching for future office space constituted a material fact in dispute. Hefner v. Deutschner ………………………………………….…. 58

Family Settlement Agreements Interpreted by Law of Contracts. The law of contracts governs the enforcement and interpretation of family settlement agreements. Like other contracts, the primary rule for interpreting a family settlement agreement is to ascertain the parties' intent. If the terms of the family settlement agreement are clear, the intent of the parties is to be determined from the language used without applying rules of construction. Schmitendorf v. Taylor ………………………...………………………….. 292*

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

58 KAN. APP. 2d SUBJECT INDEX XV

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Waiver of Contract by Party—Question of Fact. Parties to a contract can waive a condition; waiver requires intent and knowledge. Intent may be inferred from conduct, and knowledge may be actual or constructive. Whether a party has waived a contract term is a question of fact. Thoroughbred Assoc. v. Kansas City Royalty Co. ……………..……..…….. 306*

COURTS:

American Rule—Third-Party Litigation Exception—No Jury Trial Right for Determining Attorney Fees and Expenses. Because the third-party litigation exception to the American rule is grounded in the equitable powers of the court, a party seeking to recover attorney fees and expenses under the exception does not have a right to a jury trial to determine whether it should be applied in a particular case. Harder v. Estate of Foster ………………………………………….... 201*

— Third-Party Litigation Exception an Equitable Remedy—No Jury Trial Right Under Section 5. Because the third-party litigation exception to the Amer- ican rule is an equitable remedy and is not a common law remedy recognized at the time Section 5 of the Kansas Constitution Bill of Rights was adopted, there is no right to a jury trial to determine whether the exception applies in a particular case. Harder v. Estate of Foster …………………………………………... 201*

Kansas Judicial Review Act—Appellate Review. Whether a court has jurisdiction under the Kansas Judicial Review Act presents a question of law over which our review is unlimited. Brungardt v. Kansas Dept. of Revenue ………..….. 284*

No Duty for District Courts to Inform Defendant of Time Limits for Appeal. The Due Process Clause of the Fourteenth Amendment to the United States Con- stitution and Section 18 of the Kansas Constitution Bill of Rights do not require the district court to inform a defendant of the right to appeal and the statutory time limit to appeal the denial of a motion to withdraw plea. As a result, a defendant is not entitled to an out-of-time appeal simply because the court failed to inform the defendant of his rights to appeal the denial of the motion. State v. Maberry …………..………………………………………..…….. 215*

Notice of Ruling Must Be Served on Affected Party under Rule 134. Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200) provides that if the district court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party's attorney—the court immediately must serve notice of the ruling. State v. Maberry …………………. 215*

Party May Waive Request for Jury Trial if Inconsistent Conduct. Even when a jury has been requested in a civil action, a party may waive the request based on conduct that is inconsistent with an intention to insist on a jury trial. Harder v. Estate of Foster …………………………………………..…….. 201*

Review of Agency's Action under KJRA—District Court has Jurisdiction. A petitioner seeking review of an administrative agency's decision under the Kansas Judicial Review Act must set forth his or her reasons for believing relief should be granted. When a petition gives notice to the court and the parties that the petitioner is challenging the validity of the "Officer's Certification and Notice

XVI SUBJECT INDEX 58 KAN. APP. 2d

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of Suspension" form, the district court has jurisdiction to consider and resolve that question. Brungardt v. Kansas Dept. of Revenue ……………….……...….. 284*

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

Dismissal with Prejudice—Bars Later Lawsuit on same Claims. A dismissal with prejudice means that the State may not seek to reinstate the action or bring any claims before any court against the same defendant arising out of the same set of facts as the dismissed count. State v. Contreras ……………….….… 255*

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

58 KAN. APP. 2d SUBJECT INDEX XVII

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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

Medical Expenses for Persons in Custody— Determination of Obligation to Pay Expenses. The test for determining whether a government agency has an obligation to pay a person's medical expenses is whether a person is in the agency's custody when the decision was made to obtain medical treatment. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ……….… 367*

— Government Agencies' Duty to Treat Persons in Custody Humanely. K.S.A. 2019 Supp. 22-4612 conveys the legislature's intent to hold government agencies liable for medical costs incurred for the treatment people receive while in their custody. This statute, in conjunction with K.S.A. 22-4613, is rooted in the principle that government agencies have a duty to treat people in their care humanely. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ……………………………………………………….....……… 367*

— Statutory Requirement Agencies Pay Expenses. K.S.A. 2019 Supp. 22-4612 requires certain government agencies to pay the medical expenses incurred by persons in their custody. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ……………………………………………….………… 367*

Person in Custody Not Always Formally Arrested—Factual Determination. A formal arrest is not always necessary to show a person is in custody. Instead, whether a person is in custody turns on the facts of each case. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ………………… 367*

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

Restitution—Imposition Not a Violation of Section 5. The imposition of criminal restitution by a district judge under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) does not violate Section 5 of the Kansas Consti- tution Bill of Rights. State v. Robison ………………………...……………. 380*

Sentencing—Restitution—Imposition Not Violation of Sixth Amendment. The imposition of criminal restitution by a district judge under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) does not violate the Sixth Amendment to the United States Constitution. State v. Robison ……………. 380*

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— — Insurance Carrier May Be Awarded Restitution under Statutes. Nei- ther K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) prohibit a district court from awarding restitution to an insurance carrier that has suffered damage or injury as a result of the defendant's crime. State v. Robison ……………………………………………………….….. 380*

— — Purpose. Restitution is a form of restorative justice. It is intended to restore the victims of crime to the position they found themselves in prior to a defendant's commission of the offense that caused the injury or damage. Although part of the criminal sentence, restitution is intended to fairly compensate the victims of crime who actually suffered an injury or damage rather than the government. State v. Robison ……………………………………………………..……. 380*

— — Statutory Authority for Imposition by District Court. Neither K.S.A. 2017 Stupp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) impose a mandatory minimum amount or a mandatory maximum amount that a convicted defendant must pay to reimburse a victim of crime. Both statutes base the maximum amount of restitution on the actual damage or loss suffered by the victim as a result of the defendant's crime. Likewise, both statutes grant the district court the authority to order a lesser amount than the actual amount suffered by the victim if compelling circumstances show a restitution plan to be unworkable. State v. Robison ……………………………………………………….…. 380*

— Restitution Ordered as Part of Sentence or Condition of Probation. K.S.A. 2017 Supp. 21-6604(b)(1) grants a district court the authority to order a convicted defendant to pay restitution as part of the sentence. Similarly, K.S.A. 2017 Supp. 21-6607(c)(2) grants a district court the authority to order restitution payments as a condition of probation. Both statutes provide that the restitution amount must include the victim's damage or loss caused by the defendant's crime, unless the district court finds compelling circumstances that would render a plan of restitution to be unworkable. State v. Robison ………………………………..………. 380*

Sentencing for Sexually Violent Crimes—Lifetime Supervision. Those convicted of sexually violent crimes are subject to lifetime supervision on release from prison because of the high risk of recidivism for that class of offenders. In light of the purpose of the lifetime-supervision requirement, those offenders are not similarly situated to those convicted of other serious, but not sexually violent, crimes when considering whether imposing lifetime supervision on sexually violent offenders violates equal protection. State v. Little ……………………....…….278*

Validity of Confession or Statement of Juvenile—Considerations. When the accused is a juvenile, courts must exercise the greatest care and heightened sensi- tivity 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

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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

EQUITY:

No Right to Jury Trial in Suit in Equity. A party is not entitled to a jury trial as a matter of right in a suit in equity. In determining whether an action is one in equity, the test is whether the essential nature of the claim is grounded on equitable principles and is one in which equitable relief is sought. Harder v. Estate of Foster ………………………...…………. 201*

ESTATES:

Family Settlement Agreement—Statutory Definition. As authorized by K.S.A. 59-102(8), a family settlement agreement is "a written and acknowledged instrument which affects the administration or distribution of [an] estate and which is entered into by all interested heirs, devisees, legatees and persons whose interests are affected by the settlement agreement, all of whom must be competent or authorized to enter into such agreement." Schmitendorf v. Taylor ……………………………………………….. 292*

Family Settlement Agreements—Resolves Legal Disputes. Kansas law favors the settlement of legal disputes. When parties enter into a family settlement agreement resolving a dispute relating to the administration or distribution of an estate, neither party is permitted to repudiate the settlement absent bad faith or fraud. Hindsight, buyer's remorse, or other after-the-fact impulses cannot invalidate a family settlement agreement. Schmitendorf v. Taylor …….…………….. 292*

ESTOPPEL:

Equitable Estoppel—Three Factors. Equitable estoppel is a judicial remedy in which a party is prevented from taking a position inconsistent with one it previously took. A party invoking equitable estoppel must prove three things: (1) a party's acts, representations, or silence when it had a duty to

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speak caused the invoking party to believe that certain facts existed; (2) that the invoking party reasonably relied and acted on that belief; and (3) that the reliance was detrimental to the invoking party. Thoroughbred Assoc. v. Kansas City Royalty Co. ……………..…….. 306*

EVIDENCE:

Contemporaneous Objection Rule Not Applicable to Witness' Asser- tion of Fifth Amendment privilege. K.S.A. 60-404, which requires a contemporaneous objection to the admission of evidence, does not apply to the question of law whether a witness has a right to assert the Fifth Amendment privilege against self-incrimination. State v. Contreras …………………………………………...……….. 255*

Doctrine of Acquiescence—Limited Application. A district court's Fifth Amendment ruling is not a judgment to which the doctrine of acquiescence applies. That doctrine has limited application in criminal cases. State v. Contreras ……………………………………………………. 255*

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

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 depos- ited 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

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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

KANSAS CONSTITUTION:

Right to Jury Trial under Section 5. Section 5 of the Kansas Constitution Bill of Rights preserves the common law right to a jury trial as it existed at the time of its adoption. Harder v. Estate of Foster ………………….. 201*

No Jury Trial Right under Section 5 for Determination of Attorney Fees or Expenses. At common law, there was no right to recover attorney fees and expenses in a civil action. As a result, Section 5 of the Kansas Constitution Bill of Rights does not guarantee the right to a jury trial to determine whether attorney fees and expenses should be awarded or to determine a reasonable amount of attorney fees to be awarded. Harder v. Estate of Foster ……………………………………...…….. 201*

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

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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—Electronic Signature Equivalent to Manual Signature. "Signing" a document can encompass more than the physical act of manually writing a person's name. Instead, a signature is an indication by any distinctive mark—including a previously created image of an electronic signature— for the purpose of communicating and recording a person's authorization, certification, agreement, or identity. "Signing" is merely the act of affixing that signature. Brungardt v. Kansas Dept. of Revenue ………………...………………….. 284*

— 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

— Required Legal Notices. The "Officer's Certification and Notice of Sus- pension"—commonly called the DC-27 form—memorializes that the officer provided the driver all required legal notices under K.S.A. 2019 Supp. 8-1001. In signing that form, an officer certifies the requirements of K.S.A. 2019 Supp. 8-1002(a) have been fulfilled. If these notice and certification requirements are not met, the Division of Motor Vehicles must dismiss the administrative proceeding and return any suspended license. Brungardt v. Kansas Dept. of Revenue ……………………………….. 284*

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— Requirement of DC-27 Form Certification. K.S.A. 2019 Supp. 8- 1002(b) indicates that an officer's certification of a DC-27 form "shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required." This language was enacted to avoid an argument that additional foundational requirements were necessary before the Division of Vehicles could suspend a licensee's driving privileges. Brungardt v. Kansas Dept. of Revenue ……….….. 284*

Driving under Influence—Out of State Conviction May Be Used to Enhance DUI Charge. A conviction from another state for driving under the influence may be used to enhance a DUI charge under K.S.A. 2019 Supp. 8-1567 from a misdemeanor to a felony or to increase the punishment of a recidivist, even though the other state's statute proscribes a broader range of conduct. The two statutes need only be generally comparable as defined in K.S.A. 2019 Supp. 8-1567(j). State v. Mejia ……. 229*

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

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 market- place as opposed to a fictional, unrealistic, or arbitrary determination. In re Tax Appeal of River Rock Energy Co. ……………………………. 98

Gas Lease—Marketable-Condition Rule. When the parties have agreed that the gas at issue will be sold in the interstate market, that some of the gas produced from the same well could be used at the wellhead or at a farmhouse does not make the gas at issue marketable under the marketable-condition rule. Cooper Clark Foundation v. Oxy USA ……………………………………. 335*

Gas Leases—Concept of Marketable-Condition Rule. The concept of marketability is tied to the market for the gas. When the parties have agreed that the gas will be sold in the interstate market, the gas company cannot deduct expenses required to make the gas marketable for the interstate market. Cooper Clark Foundation v. Oxy USA ……………..……………. 335*

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— Implied Duty on Company to Market All Gas Produced. Under Kan- sas law, all gas leases impose an implied duty on the gas company (the lessee) to market any gas produced from the well. Unless disclaimed by express language, that means the gas company must market its product at reasonable terms within a reasonable time following production. Cooper Clark Foundation v. Oxy USA ……………………….……… 335*

— Marketable-Condition Rule—Application. A corollary of the gas company's duty to market the gas is the marketable-condition rule. Under that rule, the gas company must make the gas marketable at its own expense, which means that expenses required to make the gas marketable cannot be deducted from royalty payments. Once the gas is in marketable condition, expenses may be deducted from royalty payments. Cooper Clark Foundation v. Oxy USA ……………………….………. 335*

Modification of Lease—Factual Question. Parties to an oil-and-gas lease can modify the terms of their agreement. Whether they have mutually agreed to do so is a factual question. Their agreement may be express or implied from their conduct. Thoroughbred Assoc. v. Kansas City Royalty Co. ……………………. 306*

Production under Unitized Gas Leases—Royalties. Under Skelly Oil Co. v. Savage, 202 Kan. 239, 447 P.2d 395 (1968), when parties operating under unitized gas leases incidentally produce other liquid hydrocarbons from a gas well, the gas lease may entitle them to royalties from the production of the non-gas hydrocarbons. But when the production of other hydrocarbons is not incidental to the gas production, the proceeds from it are not covered by the gas lease. Thoroughbred Assoc. v. Kansas City Royalty Co. …. 306*

Sit to Recover Interest on Oil and Gas Payments—Award of Attorney Fees and Costs. K.S.A. 55-1617 provides that a prevailing party in a case to recover interest on certain oil-and-gas payments "may recover court costs and reasonable attorney fees at the discretion of the court." Under that provision, the award of costs and attorney fees is a discretionary call for the district court, not a mandated award. Thoroughbred Assoc. v. Kansas City Royalty Co. ……………………. 306*

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

POLICE AND SHERIFFS:

Law Enforcement Officer Has Statutory Duty to Arrest For Felonious Traffic Offenses. Under K.S.A. 8-2104(d), when a person is stopped by law enforcement for felonious traffic offenses, law enforcement has a legal duty to arrest the offender—to take the offender into custody and bring him or her before a judge. The officer conducting the stop has no discretion

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whether to take the offender into custody. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ………………………..…….…….. 367*

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 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

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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

Grant of Summary Judgment—Application. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Schmitendorf v. Taylor ……………………………………………...……. 292*

Review of Summary Judgment Motion by District Court—Standards. A party seeking summary judgment must show that there are no disputed issues of material fact and that judgment may therefore be entered as a matter of law—essentially, that there is nothing the fact-finder could decide that would change the outcome. The district court's task does not change simply because all parties have filed summary-judgment motions on stipulated facts. Each motion must be separately and independently reviewed under these summary-judgment standards. University of Kansas Hospital Authority v. Board of Franklin County Comm'rs ………………………………………………………………………...…. 367*

Summary Judgment Ruling—Appellate Review. In an appeal from a district court's ruling on a summary judgment motion, appellate courts consider the motion de novo and apply the standards set forth in K.S.A. 2019 Supp. 60-256(c)(2). Schmitendorf v. Taylor …………………………………….……..………. 292*

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TORTS:

American Rule—Application of Third-Party Litigation Exception. In the exercise of their equitable powers, courts have recognized a limited number of exceptions to the American rule. Kansas recognizes the third-party litigation exception to the American rule to protect those who are drawn into litigation due to the wrongful conduct of third parties. Harder v. Estate of Foster ………………. 201*

— Application of Third-Party Litigation Exception—Factors. The factors required to be shown to recover attorney fees and expenses under the third-party litigation exception to the American rule were set forth in Harder v. Foster, 54 Kan. App. 2d 444, 401 P.3d 1032 (2017). Harder v. Estate of Foster …..…. 201*

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

Defendant's Right to Fair Trial—Right to Call Witnesses Not Absolute. A defendant must be permitted to present a complete defense in a meaningful manner, and exclusion of evidence which is an integral part of a defendant's theory violates the right to a fair trial. A defendant's right to call and examine witnesses, however, is not absolute and on occasion will be overridden by other legitimate interests in the criminal trial process. State v. Contreras ……….………… 255*

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 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

(XXVIII)

VOL. 58 COURT OF APPEALS OF KANSAS 201

Harder v. Estate of Foster

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118,845

EVELYN HARDER, Appellant, v. ESTATE OF RONALD H. FOSTER, et al., Appellees.

___

SYLLABUS BY THE COURT

1. KANSAS CONSTITUTION—Right to Jury Trial under Section 5. Section 5 of the Kansas Constitution Bill of Rights preserves the common law right to a jury trial as it existed at the time of its adoption.

2. SAME—No Jury Trial Right under Section 5 for Determination of Attorney Fees or Expenses. At common law, there was no right to recover attorney fees and expenses in a civil action. As a result, Section 5 of the Kansas Constitution Bill of Rights does not guarantee the right to a jury trial to determine whether attorney fees and expenses should be awarded or to determine a reasonable amount of attorney fees to be awarded.

3. CONTRACTS—American Rule Followed in Kansas. Kansas follows the American rule under which each party is responsible for paying its own attorney fees and expenses unless a statute or contract specifically authorizes assessment of those fees to the other party.

4. TORTS—American Rule—Application of Third-Party Litigation Excep- tion. In the exercise of their equitable powers, courts have recognized a limited number of exceptions to the American rule. Kansas recognizes the third-party litigation exception to the American rule to protect those who are drawn into litigation due to the wrongful conduct of third parties.

5. SAME—American Rule—Application of Third-Party Litigation Exception— Factors. The factors required to be shown to recover attorney fees and expenses under the third-party litigation exception to the American rule were set forth in Harder v. Foster, 54 Kan. App. 2d 444, 401 P.3d 1032 (2017).

6. COURTS—American Rule—Third-Party Litigation Exception an Equita- ble Remedy—No Jury Trial Right Under Section 5. Because the third-party litigation exception to the American rule is an equitable remedy and is not a common law remedy recognized at the time Section 5 of the Kansas Con- stitution Bill of Rights was adopted, there is no right to a jury trial to determine whether the exception applies in a particular case.

7. SAME—Party May Waive Request for Jury Trial if Inconsistent Conduct. Even when a jury has been requested in a civil action, a party may waive the request based on conduct that is inconsistent with an intention to insist on a jury trial.

202 COURT OF APPEALS OF KANSAS VOL. 58

Harder v. Estate of Foster

8. APPEAL AND ERROR—Invited Error May Preclude Party Challenging Ruling on Appeal. If a party invites or encourages a district court to commit error or proceed in a particular way, that party is generally precluded from challenging such ruling on appeal.

9. SAME—Law of the Case Doctrine—To promote judicial efficiency, the law of the case doctrine provides that an appellate court's decision on a legal issue is binding on both the district court and the parties on remand.

10. EQUITY—No Right to Jury Trial in Suit in Equity. A party is not entitled to a jury trial as a matter of right in a suit in equity. In determining whether an action is one in equity, the test is whether the essential nature of the claim is grounded on equitable principles and is one in which equitable relief is sought.

11. COURTS—American Rule—Third-Party Litigation Exception—No Jury Trial Right for Determining Attorney Fees and Expenses. Because the third- party litigation exception to the American rule is grounded in the equitable powers of the court, a party seeking to recover attorney fees and expenses under the exception does not have a right to a jury trial to determine whether it should be applied in a particular case.

12. ATTORNEY FEES—Determination of Attorney Fees and Expenses by District Courts. District courts are experts in determining reasonable attorney fees and expenses using the methodology set forth in Kansas Rule of Professional Conduct 1.5(a) (2020 Kan. S. Ct. R. 297).

Appeal from Leavenworth District Court; DAVID J. KING, judge. Opinion filed May 15, 2020. Affirmed and remanded with directions.

Kurt S. Brack, of Brown & Ruprecht, PC, of Kansas City, Missouri, for appellant.

Gary A. Nelson, of Leavenworth, for appellee Estate of Ronald H. Foster, and William E. Pray, of Leavenworth, for appellee Terrie Foster.

Before HILL, P.J., BUSER and BRUNS, JJ.

BRUNS, J.: In this interlocutory appeal, Evelyn Harder challenges the district court's ruling that she is not entitled to a jury trial to determine an award of attorney fees and expenses in two cases consolidated for appeal. Both cases arise out of a dispute over the sale of real property from Ronald Foster—who is now deceased—to Harder. The first lawsuit was filed in 2013 and the second was filed in 2015. This is the second time these cases have been before our court. In Harder v. Fos- ter, 54 Kan. App. 2d 444, 401 P.3d 1032 (2017) (Harder I), this court affirmed the district court's decision in part but remanded both cases VOL. 58 COURT OF APPEALS OF KANSAS 203

Harder v. Estate of Foster for consideration of Harder's claims for attorney fees and expenses against Foster's estate. On remand, the district court determined that Harder's claim for attorney fees and expenses should be decided by the court and not by a jury. Subsequently, our court granted a petition for interlocutory appeal. For the reasons set forth in this opinion, we conclude that Section 5 of the Kansas Constitution Bill of Rights does not guarantee the right to a jury trial to determine an award of attorney fees and expenses. We also find that Harder waived her request for a jury trial to determine attorney fees and expenses in the 2013 case. In addition, we find that Harder's claim for attorney fees and expenses under the third-party litigation exception to the American rule is an equitable claim that should be decided by the district court—not by a jury. Thus, we affirm the district court's decision and remand this matter for further proceedings consistent with this opinion.

FACTS

The underlying facts of the two cases consolidated for appeal were set forth in Harder I. In the opinion, this court summarized the factual and procedural history of the two cases as follows:

"Evelyn Harder bought property with a house, dam, and lake from Ronald Foster. Shortly thereafter, Harder discovered that the dam, which Foster had assured her did not have any problems, was in fact illegal and would need extensive repairs. Harder filed suit against Foster [in 2013], and the jury found Foster guilty of negligent misrepresentation, intentional misrepresentation, and breach of contract. The parties' Residential Real Estate Contract provided that the party who breached the contract would pay any attorney fees the nonbreaching party incurred 'in connection with the default,' so Harder filed a motion requesting attorney fees incurred up through the verdict. The court granted her motion for attorney fees, but the issue took months to litigate. Harder filed a second motion for attorney fees requesting compensation for the fees generated while litigating the first motion. The district court denied her motion, holding that the fees incurred defending the first award of attorney fees were not generated 'in connection with the default.' Foster appealed. "After the trial and the first motion for attorney fees, Harder filed a second lawsuit against Foster [in 2015], three of his children, and his son-in-law [under the Uniform Fraudulent Transfer Act]. Her petition alleged that Foster had fraudulently transferred all of the proceeds of the property sale to his family members for no consideration, leaving him unable to satisfy the judgment. She asked 'to have the transfers avoided, set aside, and held for naught; for an attachment of the assets transferred; for execution on the transferred assets; and for injunctive relief prohibiting further disposition of the transferred assets.' She later asked the court for leave to amend her petition to add a claim for punitive damages. Foster died a few months later, and his estate 204 COURT OF APPEALS OF KANSAS VOL. 58

Harder v. Estate of Foster was substituted as a party. The estate then paid the judgment from the first case in full and filed a motion for summary judgment on Harder's second lawsuit. The district court granted the motion, holding that payment of the judgment extin- guished Harder's fraudulent conveyance claim. Foster appealed the district court's grant of summary judgment to Foster and the denial of her request to amend her petition. Both cases were consolidated on appeal." 54 Kan. App. 2d at 445-46.

In Harder I, this court agreed that the district court appropriately granted summary judgment on Harder's statutory claim and that it properly denied her motion for leave to amend her petition in the 2015 case to include a claim for punitive damages. However, the district court's decision to deny attorney fees and expenses in both cases was reversed. 54 Kan. App. 2d at 474-75. Consequently, this court remanded the two cases to the district court "for determination of any attorney fees to be assessed against Foster's estate." 54 Kan. App. 2d at 475. In addressing the request for attorney fees and expenses in the 2013 case in Harder I, this court found that "[t]he district court erred when it held that [attorney] fees generated in defending the postverdict motions were not generated in connection with the [breach of the real estate sales contract] and therefore not recoverable." The court noted that "payment of attorney fees was within the contemplation of the parties at the time of contracting." 54 Kan. App. 2d at 455-56. As a result, this court concluded that remand of the 2013 case was appropriate "for a determination of the amount of attorney fees to be awarded, a fact that remains in the sound discretion of the district court." 54 Kan. App. 2d at 460. Turning to Harder's claim for attorney fees and expenses in the 2015 case, this court found that "Kansas adheres to the American rule" that "proscribes courts from awarding attorney fees unless specifically authorized by statute or contract." The court then found that the Uni- form Fraudulent Transfer Act (UFTA) does not provide for statutory attorney fees. Thus, this court held that "under the American rule, attorney fees are not allowed under the UFTA." 54 Kan. App. 2d at 463. Even so, this court remanded the 2015 case to allow Harder the opportunity to attempt to prove that she is entitled to recover attorney fees and expenses under the third-party litigation exception to the American rule. 54 Kan. App. 2d at 463 (quoting Hawkinson v. Bennett, 265 Kan. 564, 575, 962 P.2d 445 [1998]). In doing so, it VOL. 58 COURT OF APPEALS OF KANSAS 205

Harder v. Estate of Foster was noted that even if Harder succeeds in establishing that the third-party litigation exception to the American rule applies, "she is only able to recover attorney fees specifically related to the third-party claims." 54 Kan. App. 2d at 473. For these reasons, this court remanded the 2015 case to the district court for the limited purpose of determining "whether the principles outlined [in the opinion regarding the third-party litigation exception] apply and what if any attorney fees are in order . . . ." 54 Kan. App. 2d at 474. On remand, the district court held a joint pretrial conference in the 2013 and 2015 cases. At the pretrial conference, Harder's counsel asserted that his client had a right to have a jury determine attorney fees and expenses in both cases. In denying the request for a jury trial on the issue of attorney fees and expenses in the 2013 case, the district court pointed out that Harder's counsel was taking an inconsistent position from the one he had taken during trial and at posttrial hearings. Specifically, the district court noted Harder's counsel had "argued long and hard" that the question of attorney fees and expenses should be decided by the court and not by a jury. Ultimately, the district court determined that the remaining issues in both cases will be heard by the Court and not a jury. Thereafter, this court granted Harder's petition for interlocutory appeal.

ANALYSIS

Section 5 of the Kansas Constitution

Section 5 of the Kansas Constitution Bill of Rights provides that "[t]he right of trial by jury shall be inviolate." In a civil context the right to a jury trial is codified in K.S.A. 2019 Supp. 60- 238. Nevertheless, the right to a jury trial in a civil action is not absolute. Rather, Section 5 of the Kansas Constitution Bill of Rights only preserves the common law right to a jury trial as it existed at the time of its adoption. Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1133-34, 442 P.3d 509 (2019). The Kansas Constitution was adopted by the delegates to the Wyandotte Constitutional Convention on July 29, 1859. A few months later, on October 4, 1859, the Kansas Constitution was approved by popular vote. Accordingly, Section 5 of the Kansas 206 COURT OF APPEALS OF KANSAS VOL. 58

Harder v. Estate of Foster

Constitution Bill of Rights does not guarantee a right to a jury trial to resolve a claim for attorney fees and expenses unless it can be shown that such a right existed at common law in 1859. As the Kansas Supreme Court has found, there was no right to recover attorney fees at common law. Wolf v. Mutual Benefit, 188 Kan. 694, 700, 366 P.2d 219 (1961). Although English courts have regularly awarded attorney fees to prevailing parties for several centuries, the authority to award attorney fees in Great Britain has been traditionally granted by statute—not under common law. See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247, 95 S. Ct. 1612, 44 L. Ed. 2d 141 (1975). Moreover, under the English rule, attorney fees are not awarded by a jury. Instead, "separate hearings [are held] before special 'taxing Masters' in order to determine the appropriateness and the size of an award of counsel fees." 421 U.S. at 247 n.18. In the years following the American Revolution, the English rule was overwhelmingly rejected throughout the United States. In Arcambel v. Wiseman, 3 U.S. (3 Dall.) 306, 1 L. Ed. 613 (1796), the United States Supreme Court held that "[t]he general practice of the United States is in opposition to [the English rule]." Soon, the American rule—under which each party pays its own attorney fees and expenses unless a statute or contract specifically authorizes assessment to the other party—replaced the English rule that had been followed in British colonies. The American rule quickly spread across the new nation, and it continues to be the predomi- nant method of handling the payment of attorney fees and expenses across the United States. See Leubsdorf, Toward a History of the American Rule on Attorney Fee Recovery, 47 Law & Con- temp. Probs. 9 (Winter 1984). Kansas continues to adhere to the American rule, and courts are prohibited from awarding attorney fees and expenses unless specifically authorized by statute or contract. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, 162, 298 P.3d 1120 (2013); see Robinson v. City of Wichita Employees' Retirement Bd. of Trustees, 291 Kan. 266, 279, 241 P.3d 15 (2010); Harder I, 54 Kan. App. 2d at 463. Even so, in the exercise of their equitable powers, courts have recognized a few exceptions to the American rule. See Sprague v. Ticonic National Bank, 307 U.S. 161, 164, 59 VOL. 58 COURT OF APPEALS OF KANSAS 207

Harder v. Estate of Foster

S. Ct. 777, 83 L. Ed. 1184 (1939). One of these exceptions is the third-party litigation exception—sometimes called the "collateral litigation" or "tort of another" exception—to the American rule. As this court recognized in Harder I, Kansas recognizes this equitable exception to the American rule to protect a party who is drawn into litigation because of the wrongful conduct of a third- party. 54 Kan. App. 2d at 463-64; see also Scott-LaRosa v. Lewis, 44 N.E.3d 89, 96 (Ind. Ct. App. 2015). Under the third-party litigation exception to the American rule, a party forced to litigate against a third party may recover attorney fees and expenses that are otherwise not allowable by statute or contract if certain factors can be established. 54 Kan. App. 2d at 464. As also noted in Harder I, the Kansas Supreme Court first recognized a similar principle in First National Bank of Hutchinson v. Williams, 62 Kan. 431, 434, 63 P. 744 (1901). Of course, this was more than 40 years after the Kansas Constitution was approved by the voters in the Kansas Territory. Based on our review of the history of Kansas law, we find no authority to suggest that there was a common law right to recover attorney fees and expenses when the Kansas Constitution was adopted—much less that a jury must make a determination regarding when attorney fees should be awarded. Likewise, we find no authority to suggest that a determination of whether the third-party litigation exception to the American rule is a common law right or that it was recognized in 1859. Rather, we find that it is an equitable exception to the general rule prohibiting courts from awarding attorney fees to a prevailing party in the absence of statutory or contractual authority. Accordingly, we conclude that Section 5 of the Kansas Constitution Bill of Rights does not guarantee the right to a jury trial to determine whether attorney fees and expenses should be awarded, to determine a reasonable amount of attorney fees to be awarded, or to determine whether the third-party litigation exception to the American rule should be applied.

Determination of Attorney Fees in 2013 Case

At the outset, we note that the 2013 case was tried to verdict more than five years ago without Harder submitting her contractual claim for attorney fees and expenses to the jury. Furthermore, as this court found in Harder I, the judgment rendered by the jury 208 COURT OF APPEALS OF KANSAS VOL. 58

Harder v. Estate of Foster in the 2013 case has been fully and completely satisfied by Fos- ter's estate. Nevertheless, Harder now contends that she is entitled to a separate jury trial in the 2013 case solely on her claim for attorney fees and expenses arising out of the real estate contract. It is undisputed that the residential real estate contract executed by Harder and Foster required a party in default on the agreement to reimburse the nondefaulting party for reasonable legal expenses, including attorney fees. Yet a review of the record reflects that Harder voluntarily chose not to present her claim for attorney fees and expenses under the contract to the jury in the 2013 case. Instead, she requested—through her attorney—that the claim for attorney fees and expenses be resolved by the district court after completion of the jury trial. On the last day of the jury trial, the district court discussed Harder's claim for attorney fees and expenses with her attorney. Specifically, Harder's counsel represented to the district court:

"[PLAINTIFF'S COUNSEL]: . . . Finally, his last argument with regard to attorney's fees. Your Honor, it was pled in the petition, and those attorney's fees obviously are ongoing. There was a basis for them under the contract between Mr. Foster and Ms. Harder. "THE COURT: That wasn't a claim that was included in the pretrial order, was it? "[PLAINTIFF'S COUNSEL]: It was included in the pretrial questionnaires that was submitted— "THE COURT: It was not included in the pretrial order. We didn't go through that at the pretrial conference, did we? "[PLAINTIFF'S COUNSEL]: We—Your Honor, we did in the sense of—I think you were going to take the pretrial questionnaires, kind of merge them together. "THE COURT: And I did. And I— "[PLAINTIFF'S COUNSEL]: And it was listed. "THE COURT: —generated—and I generated a pretrial order. It did not include any claim for attorney's fees and no objection was made to the pretrial order, was it? "[PLAINTIFF'S COUNSEL]: Judge, there was no objection to the pretrial order. "THE COURT: Okay. And there was no evidence presented regarding attorney's fees for submission to this fact finder? "[PLAINTIFF'S COUNSEL]: At this point, no, Your Honor. "THE COURT: Let's say that I was to allow the pretrial order to be amended to conform to the evidence at the time of trial. And—and the only evidence that was in the trial of this case would be that there was inquiry made of the plaintiff while she was testifying, that she had a contract and referenced the contract's provision regarding an entitlement to attorney's fees if there was a breach of the contract. VOL. 58 COURT OF APPEALS OF KANSAS 209

Harder v. Estate of Foster

"[PLAINTIFF'S COUNSEL]: Correct. "THE COURT: And that was the only evidence. "[PLAINTIFF'S COUNSEL]: Correct. "THE COURT: There—there was no submission as to—to an amount of attorney's fees or anything of the nature. "[PLAINTIFF'S COUNSEL]: That's correct, Your Honor. "THE COURT: Okay. "[PLAINTIFF'S COUNSEL]: And that's because we haven't actually completed all of the attorney's fees that have been incurred in the case. "THE COURT: How can this jury award attorney fees then? "[PLAINTIFF'S COUNSEL]: Well, I think that's probably a matter for the Court's decision, not maybe the jury's decision. "THE COURT: So you're not asking that the jury determine an award of attorney fees? "[PLAINTIFF'S COUNSEL]: Correct, Your Honor. Because it's still ongoing. It's kind of difficult to hit a moving target." (Emphasis added.)

After the jury returned a verdict in favor of Harder, she filed a posttrial motion in which she asked the district court to grant her attorney fees and expenses based on the real estate contract. Her motion was successful, and the district court ordered Foster to pay $51,862 in attorney fees and $13,871.34 in expenses to Harder. Later, Foster moved to set aside the district court's order granting attorney fees and expenses. At a hearing on the motion, Harder's attorney explicitly argued to the district court that the question of attorney fees and expenses arising out of the real estate contract "is not a jury decision." At a subsequent hearing, Harder's attorney again emphatically argued that the decision on awarding of attorney fees and expenses arising out of the real estate contract is one for the judge—not for a jury. Harder's attorney told the district court that because the language of the real estate contract had a specific requirement that the attorney fees be reasonable, it "puts [the claim for attorney fees and expenses] in your domain to decide that issue and [it is] not a jury decision." In addition, Harder's counsel argued that the district court should decide the issue because the PIK Jury Instruc- tions lack an instruction to assist a jury in awarding attorney fees and expenses. After considering these arguments, the district court upheld its prior order granting Harder attorney fees and expenses arising out of the real estate contract. 210 COURT OF APPEALS OF KANSAS VOL. 58

Harder v. Estate of Foster

Later, Harder filed a second motion for attorney fees and expenses arising out of legal work performed after the jury trial related to various posttrial motions. At a hearing on the second motion, Harder's counsel argued that the additional attorney fees and expenses were incurred "in connection with the default." Once again, Harder's attorney argued to the district court that a determination of his client's claim for attorney fees and expenses arising out of the real estate contract should be made by the district court—not by a jury. In denying Harder's second motion for attorney fees and expenses, the district court noted the confusion about whether Harder had preserved a claim for attorney fees and expenses in the pretrial order. In addition, the district court pointed out the deluge of motions and delays that followed the jury's verdict in the 2013 case. Ultimately, the district court found that "none of this had anything to do with actions of the defendant" and that "the amount of time that was devoted really related to certain failures of [Hard- er's] counsel to present a record supporting the award of attorney's fees." Harder then filed her first appeal to this court. In Harder I, this court held that attorney fees and expenses incurred as a result of defending the jury verdict fell within the language in the real estate contract. In remanding this issue to the district court, this court found:

"Here, the parties agreed that the defaulting party would pay the attorney fees of the nondefaulting party. Thus, payment of attorney fees was within the contemplation of the parties at the time of contracting. It is reasonably foreseeable that, should the defaulting party attempt to evade its duty to pay attorney fees, the nondefaulting party would incur even more attorney fees defending its rights under the contract. It was reasonably foreseeable to Foster that Harder would defend her rights under the contract, the rights that were only bestowed upon Harder because Foster defaulted." 54 Kan. App. 2d at 455-56.

On remand, the district court held a pretrial conference on the claim for attorney fees and expenses in both cases. In contradic- tion to the position he had taken during the jury trial and at several posttrial hearings, Harder's counsel now argued that his client has a right to a jury trial to determine her claim for attorney fees and expenses in the 2013 case. In rejecting this argument, the district court found that "the plaintiff was taking an inconsistent position VOL. 58 COURT OF APPEALS OF KANSAS 211

Harder v. Estate of Foster about how . . . the issue of attorney's fees should be determined. Having argued long and hard that it was proper to not have the attorney's fee[s] in the 2013 . . . case determined by a jury but rather by the Court." We agree with the concerns expressed by the district court about the inconsistent positions taken by Harder's counsel. In this interlocutory appeal, Harder argues the district court erred in not granting a jury trial on the issue of attorney fees and expenses. Specifically, Harder argues that despite the inconsistent positions taken by her attorney before the district court, there has been no "consent to a withdrawal of the jury demand." See K.S.A. 2019 Supp. 60-238(d) (addressing the waiver and withdrawal of a demand for jury trial) and K.S.A. 2019 Supp. 60-239(a)(1) (addressing stipulations to withdraw a demand for a jury trial). In response, Foster contends that Harder should be held to the position previously taken by her attorney who "insisted that the District Court had the authority to hear and decide the amount of attorney fees to be awarded." In Dickinson, Inc. v. Balcor Income Properties Ltd., 12 Kan. App. 2d 395, 745 P.2d 1120 (1987), this court decided a similar issue to the one presented in this case. In Dickinson, the plaintiff likewise argued that the district court erred in not granting a jury trial on the issue of attorney fees and expenses in an action for breach of contract. Finding that the plaintiff's argument lacked merit, this court found that "'[c]on- duct or acquiescence inconsistent with an intention to insist on a jury trial may constitute waiver thereof.'" 12 Kan. App. 2d at 401 (quoting Westamerica Securities, Inc. v. Cornelius, 214 Kan. 301, 306, 520 P.2d 1262 [1974]). Ultimately, this court determined that a plaintiff "may not complain of matters to which it has consented, or take advantage of error which it has invited or in which it has participated. [Citation omitted.]" 12 Kan. App. 2d at 401. In this case, a review of the record reveals that Harder consented or acquiesced—through the representations made by her attorney at the jury trial and at posttrial hearings—to the district court deciding the issue of attorney fees and expenses in the 2013 case. As discussed above, Harder's attorney repeatedly argued to the district court that the question of attorney fees and expenses arising out of the real estate contract should not be decided a jury. So, we have no difficulty finding the position now taken by Harder to be inconsistent with her earlier position. 212 COURT OF APPEALS OF KANSAS VOL. 58

Harder v. Estate of Foster

Moreover, the error that Harder now claims was invited by Harder's counsel based on his repeated representations to the district court at trial as well as during posttrial hearings. An invited error is "[a]n error that a party cannot complain of on appeal because the party, through its conduct, encouraged or prompted the trial court to make the erroneous ruling." Black's Law Dictionary 660 (10th ed. 2014). See Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 1203, 308 P.3d 1238 (2013) (party may not invite error and then complain of that error as a ground for reversing an adverse judgment). "Where a party procures a court to proceed in a particular way thereby inviting a particular ruling, that party is precluded from assailing such proceeding and ruling on appellate review." In re Estate of Broderick, 34 Kan. App. 2d 695, Syl. ¶ 10, 125 P.3d 564 (2005). Here, the record reveals that even though the district court expressed reluctance to do so, Harder's attorney was successful in persuading it that the claim for attorney fees and expenses arising out of the real estate contract should not be decided by a jury. Sig- nificantly, the 2013 case was tried to a jury more than five years ago and the judgment has been satisfied. For Harder's attorney to argue an inconsistent position at this late date—after the repeated arguments made at trial and during posttrial hearings—is at best questionable. Consequently, we find that Harder should not be allowed to capitalize on the alleged error that her attorney invited. In summary, we find that the repeated representations made by Harder's attorney below are sufficient to establish consent or acquiescence to the district court's decision to deny a jury trial on the issue of attorney fees and expenses arising out of the real estate contract. We also find that even if the district court committed error in denying the request for a jury to determine Harder's claim for attorney fees and expenses, any error was invited by her attorney. Thus, we conclude that the district court did not err in denying Harder's request for a jury trial on the issue of attorney fees and expenses in the 2013 case.

Application of the Third-Party Exception in 2015 Case

Harder also contends that the district court erred in denying her request for a jury to determine the issue of whether the third- VOL. 58 COURT OF APPEALS OF KANSAS 213

Harder v. Estate of Foster party litigation exception to the American rule is applicable in the 2015 case. For the reasons set forth above, Harder does not have a right to a jury trial on this issue under Section 5 of the Kansas Constitution Bill of Rights. Moreover, this court previously ruled in Harder I that "under the American rule, attorney fees are not allowed under the UFTA." 54 Kan. App. 2d at 463. Because neither party sought review of the decision in Harder I, the legal conclusions announced in that opinion now serve as "the law of the case" under which the parties and district court must abide. "Under the law of the case doctrine, when a second appeal is brought in the same case, the first decision is the settled law of the case on all questions involved in the first appeal, and reconsider- ation will not normally be given to such questions." State v. Kley- pas, 305 Kan. 224, Syl. ¶ 2, 382 P.3d 373 (2016). "The law of the case doctrine prevents a party from serially litigating an issue on appeal already presented and decided in the same proceeding." Garetson Brothers v. American Warrior, Inc., 56 Kan. App. 2d 623, Syl. ¶ 7, 435 P.3d 1153 (2019). The doctrine promotes judicial efficiency while allowing litigants a full and fair opportunity to present their arguments on a particular point. See State v. Parry, 305 Kan. 1189, 1194, 390 P.3d 879 (2017). In Harder I, this court remanded the 2015 case to the district court for the limited purpose of making "a determination whether the principles outlined [in the opinion regarding the third-party litigation exception] apply and what if any attorney fees are in order . . . ." 54 Kan. App. 2d at 474. As discussed above, the United States Supreme Court has found that the authority to recognize exceptions to the American rule falls within the equitable powers of the courts. Sprague, 307 U.S. at 164; see Hall v. Cole, 412 U.S. 1, 5, 93 S. Ct. 1943, 36 L. Ed. 2d 702 (1973). Thus, we find that the question of whether the third-party litigation exception to the American rule applies is firmly grounded in equity. As Harder recognizes in her brief, "[i]t has been uniformly held [by the Kansas Supreme Court], since the early history of the state that a party is not entitled to a jury trial as a matter of right in a suit in equity." Spena v. Goffe, 119 Kan. 831, 833, 241 P. 257 (1925) (citing Kimball v. Connor, 3 Kan. 414, 432 [1866]); see also Vanier v. Ponsoldt, 251 Kan. 88, Syl. ¶ 6, 833 P.2d 949 (1992); Jensen Int'l, Inc. v. Kelley, 29 Kan. App. 2d 836, 843, 32 214 COURT OF APPEALS OF KANSAS VOL. 58

Harder v. Estate of Foster

P.3d 1205 (2001). "In determining whether an action is one in equity, the test is whether the essential nature of the action is grounded on equitable rights and is one in which equitable relief is sought." In re Pe- tition of City of Moran, 238 Kan. 513, Syl. ¶ 1, 517-18, 713 P.2d 451 (1986). Because exceptions to the American rule arise out of the court's equitable powers and because they are a means to seek equitable relief not allowable by statute or contract, we conclude that there is no right to a jury trial to decide claims asserted under the third-party litigation exception. In remanding the issue of attorney fees in Harder I, this court anticipated that the district court—not a jury—would determine whether Harder is able to establish the necessary elements to recover under the third-party exception to the American rule in the 2015 case. In particular, this court found that the district court should determine whether Harder is able to show that "(1) the defendant committed a tort or violated a contractual duty; (2) third-party litigation is the natural and proximate consequence of the defendant's wrongdoing; (3) it was necessary for the claimant to engage in the third-party litigation; and (4) the claimant exercised good faith in the third-party litigation." 54 Kan. App. 2d at 473. Furthermore, this court provided guidance to assist the district court on remand in deciding whether the third-party litigation exception applies in the 2015 case. 54 Kan. App. 2d at 474. We conclude that the district court did not err in deciding that the limited issue upon which the 2015 case was remanded should be determined by the court rather than by a jury. As a result, we once again remand this matter to the district court for a determination of whether the principles outlined in Harder I regarding the applicability of the third-party litigation exception should be applied and, if so, to decide the amount of attorney fees and expenses that reasonably relate to the claims asserted by Harder against third parties. In reaching this conclusion, we note that the district court is an expert in determining reasonable attorney fees and expenses. So, it is "well within [the court's] discretion to make this determination and use KRPC 1.5(a) as the methodology to resolve this dispute." Westar Energy, Inc. v. Wittig, 44 Kan. App. 2d 182, 206, 235 P.3d 515, 530 (2010) (citing Johnson v. Westhoff Sand Co., 281 Kan. 930, 940-41, 135 P.3d 1127 [2006]).

Affirmed and remanded with directions. VOL. 58 COURT OF APPEALS OF KANSAS 215

State v. Maberry

___

No. 120,972

STATE OF KANSAS, Appellee, v. CHRISTOPHER CHARLES MABERRY, Appellant.

___

SYLLABUS BY THE COURT

1. COURTS—Notice of Ruling Must Be Served on Affected Party under Rule 134. Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200) provides that if the district court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party's attorney—the court immediately must serve notice of the ruling.

2. APPEAL AND ERROR—Due Process Requires Substantial Compliance With Service Requirement under Rule 134(a). To satisfy the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Section 18 of the Kansas Constitution Bill of Rights, substantial compliance with Supreme Court Rule 134(a) is required before the time to file a notice of appeal begins to run on the denial of a motion to withdraw plea. As a result, a defendant is entitled to file an out-of-time appeal if the district court does not substantially comply with the service requirement set forth in Rule 134(a).

3. COURTS—No Duty for District Courts to Inform Defendant of Time Limits for Appeal. The Due Process Clause of the Fourteenth Amendment to the United States Constitution and Section 18 of the Kansas Constitution Bill of Rights do not require the district court to inform a defendant of the right to appeal and the statutory time limit to appeal the denial of a motion to withdraw plea. As a result, a defendant is not entitled to an out-of-time appeal simply because the court failed to inform the defendant of his rights to appeal the denial of the motion.

Appeal from Reno District Court; JOSEPH L. MCCARVILLE III, judge. Opin- ion filed May 22, 2020. Affirmed in part, vacated in part, and remanded with directions.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Natasha Esau, assistant district attorney, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., BUSER and BRUNS, JJ.

BUSER, J.: After pleading guilty to aggravated escape from custody, Christopher Charles Maberry filed a pro se postsentenc- 216 COURT OF APPEALS OF KANSAS VOL. 58

State v. Maberry ing motion to withdraw his plea. The district court summarily denied the motion. More than six months later, Maberry filed a motion to appeal out of time from the denial of his motion to withdraw plea. The district court also summarily denied this motion. This is Maberry's appeal of the district court's order denying his motion to appeal out of time. He asserts the district court violated his right to due process in two ways: First, he was not informed the district court denied his motion to withdraw plea until after the statutory time to appeal had expired. Second, the district court failed to inform him of his appellate rights at the time the court denied Maberry's motion to withdraw plea. Upon our review, we hold that Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200) requires that if the district court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party's attorney—the court immediately must serve notice of the ruling. Moreover, to satisfy the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Section 18 of the Kansas Constitution Bill of Rights, we hold that substantial compliance with Supreme Court Rule 134(a) is required before the time to file a notice of appeal begins to run on the denial of a motion to withdraw plea. As a result, a defendant is entitled to file an out-of-time appeal if the district court does not substantially comply with the service requirement set forth in Rule 134(a). Accordingly, we vacate the district court's summary dismissal and remand with directions to make findings regarding whether the district court substantially complied with Supreme Court Rule 134(a). Upon remand, if the district court determines that service of the court's order denying Maberry's motion to withdraw plea was not substantially complied with, the district court shall grant the motion to file an out-of-time appeal. On the other hand, if the district court determines that service of the court's order denying Maberry's motion to withdraw plea was substantially complied with, the district court shall reconsider its prior ruling, including, if appropriate, reinstating its prior ruling denying Maberry's motion to file an out-of-time appeal. VOL. 58 COURT OF APPEALS OF KANSAS 217

State v. Maberry

With regard to Maberry's second issue on appeal, we hold that because a criminal defendant does not have a statutory right to be informed of the right to appeal from a denial of a motion to withdraw plea, the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Section 18 of the Kansas Constitution Bill of Rights do not require that the district court inform the defendant of the right to appeal and the statutory time limit to appeal the denial of the motion. As a result, Maberry is not entitled to an out-of-time appeal simply because the district court failed to inform him of his rights to appeal the denial of the motion. Thus, we affirm the district court as to the second issue.

FACTUAL AND PROCEDURAL BACKGROUND

On January 5, 2018, the district court revoked Maberry's probation in several criminal cases, imposed the underlying sentences, and ordered him into custody. At the conclusion of the hearing, Maberry ran out of the courtroom. Maberry led officers on a foot chase throughout the courthouse until he encountered a locked door, whereupon he apologized to the officers and was arrested. The State charged Maberry with aggravated escape from custody, in violation of K.S.A. 2017 Supp. 21-5911(b)(1)(A). At a plea hearing on this charge, the district court informed Maberry of the sentencing range for the crime, and Maberry said he understood the range of possible sentences. Maberry pled guilty as charged, stating, "[M]yself and the cameras in the court know I'm guilty. I'm guilty." The district court accepted Maberry's plea and found him guilty of aggravated escape from custody. Prior to sentencing, Maberry filed a motion for a dispositional departure to probation. In the departure motion, Maberry noted that his mother was terminally ill, and she cried in the courtroom when his probation was revoked. In desperation, Maberry claimed that he ran from the courtroom afraid of never seeing his mother again. At sentencing on May 11, 2018, Maberry asked "for the mercy of the courts" and told the district court, "I am really regrettably sorry for what I did." The district court, however, denied his departure motion and sentenced him to 19 months in prison. The district judge informed Maberry of his right to appeal the sentence, stating, "You can appeal this sentence by filing notice of appeal 218 COURT OF APPEALS OF KANSAS VOL. 58

State v. Maberry within 14 days in writing. If you can't afford an attorney we will appoint someone to represent you. You can talk to [your attorney]. If you want to appeal he'll file a notice of appeal for you." No appeal was filed. On July 7, 2018, Maberry mailed our court a letter asking about an appeal in his criminal case. The Clerk of the Appellate Courts informed Maberry there was no appeal docketed in the case and no open appeals in his name. Maberry was referred to the district court to see if a notice of appeal had been filed. On August 17, 2018, Maberry filed a pro se motion to withdraw his guilty plea in the district court. In the motion, Maberry argued that he was coerced into pleading guilty, and his defense counsel provided ineffective assistance—in particular, failing to file a presentencing motion to withdraw Maberry's plea at his request. The district court summarily denied Maberry's motion on Au- gust 20, 2018. In its order, the district court stated: "The Defend- ant, on the record, showed the Court that his plea was knowing, intelligent and voluntary. He showed the Court that he [was] satisfied with the service of his attorney. His claim to the contrary at this point is not credible." Additionally, the district court found Maberry made "no claim[s] resembling an assertion of manifest injustice." Relevant to this appeal, the order did not advise Ma- berry of his right to appeal or the statutory time limit to appeal the district court's adverse ruling. It does not appear from the record on appeal that the district court's order included a certificate of service or a cover letter indicating that the order was mailed to Maberry or to what address it was sent. At the bottom of the two-page order, however, was typewritten: "CC: Christopher Maberry." This is the only indication in the record that Maberry may have been provided with a copy of the district court's order denying his motion to withdraw plea. On November 13, 2018—almost three months after the district court filed its order—Maberry handwrote a letter to the district court asking about the status of his motion to withdraw plea. In relevant part the letter read:

VOL. 58 COURT OF APPEALS OF KANSAS 219

State v. Maberry

"I yet to this day have heard nothing back or have not received any Court dates that have been issued to me. "Could you please get ahold of me to let me know if a possible Court date is assigned for the motion I had sent back in [August] 17th 2018[?] . . . . "I would highly appreciate [it if] this matter could be brought [forthwith] with an [evidentiary] hearing that could be placed in [due] time. "This matter has been pushed on now for a period of time exceeding . . . three months now."

The record does not indicate if the district court replied to Maberry's letter. On February 25, 2019, Maberry filed a pro se motion to appeal out of time. In the motion, Maberry asserted:

"Defendant was not transported to Court for an evidentiary hearing, not represented by counsel, [not] notified of the Court's denial until November 27, 2018, as well as his right to appeal the decision. As a result no appeal was timely filed. Mr. Maberry recently became aware that he has the right to appeal the Court's decision and wished to exercise his right to do so."

In response, the district court filed an order, dated February 26, 2019, summarily denying Maberry's motion to appeal out of time. In the order, the district court stated that "there is no rule requiring the Court to separately advise [Maberry] of the right to appeal" the denial of a motion to withdraw plea. The district court also indicated that Ma- berry failed

"to explain the delay between his acknowledgement of his receiving notice of the Court's August 20, 2018 decision which he says he received on November 27, 2018 and the filing of his Motion for Leave to Appeal Out of Time on February 25, 2019. That delay was obviously in excess of the 14 days that the Court informed him of at his sentencing."

Consequently, the district court ruled that Maberry did not allege sufficient facts to show the district court should excuse his failure to file a timely notice of appeal. Maberry appeals the district court's denial of his motion to appeal out of time.

ANALYSIS

On appeal, Maberry contends the district court erred by denying his motion to file an appeal out of time. Maberry argues that due process of law entitles him to an out-of-time appeal for two reasons: First, the district court failed to notify him that it denied his motion 220 COURT OF APPEALS OF KANSAS VOL. 58

State v. Maberry to withdraw plea until after the time to appeal had expired. Sec- ond, the district court failed to inform him of his appellate rights upon the denial of his motion to withdraw plea. We will separately address the two arguments.

STANDARDS OF REVIEW AND BASIC STATUTORY AND CONSTITUTIONAL PRINCIPLES

At the outset, it is necessary to briefly summarize our standards of review and some basic statutory and constitutional principles relevant to this appeal. When the material facts underlying a district court's decision are not in dispute, we exercise unlimited review over the legal conclusion as to whether an exception applies to the requirement of a timely appeal. State v. Smith, 303 Kan. 673, 677, 366 P.3d 226 (2016). Likewise, the issue of whether due process has been afforded is a question of law subject to unlimited review. Requena v. State, 310 Kan. 105, 108, 444 P.3d 918 (2019). "A defendant has a right to appeal from the denial of a motion to withdraw a plea." State v. Hemphill, 286 Kan. 583, 593, 186 P.3d 777 (2008). However, the right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. State v. Rocheleau, 307 Kan. 761, 763, 415 P.3d 422 (2018). Fil- ing a timely notice of appeal is a prerequisite to appellate jurisdiction. Smith, 303 Kan. at 677. As a general rule, the failure to file a notice of appeal before the statutory deadline requires dismissal of the appeal. Albright v. State, 292 Kan. 193, 197, 251 P.3d 52 (2011). An appeal from the denial of a motion to withdraw plea must be filed within the time frame for criminal appeals found in K.S.A. 2019 Supp. 22-3608. Hemphill, 286 Kan. at 590. Under the current statute, a criminal defendant has 14 days from the entry of judgment to file a notice of appeal. K.S.A. 2019 Supp. 22-3608(c). With regard to due process, the Fourteenth Amendment to the United States Constitution provides that no State "shall . . . deprive any person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV, § 1. Additionally, Section 18 of the Kansas Constitution Bill of Rights states: "All persons, for VOL. 58 COURT OF APPEALS OF KANSAS 221

State v. Maberry injuries suffered in person, reputation or property, shall have remedy by due course of law." Historically, Kansas courts construe the due process protections of Section 18 to be the same as those guaranteed by the Fourteenth Amendment. State v. Boysaw, 309 Kan. 526, 537-38, 439 P.3d 909 (2019). Finally, when a State provides the right to an appeal, the minimum essential elements of due process of law must be provided. Evitts v. Lucey, 469 U.S. 387, 393, 105 S. Ct. 830, 83 L. Ed. 2d 821 (1985); Johnson v. Brooks Plumbing, LLC, 281 Kan. 1212, 1215, 135 P.3d 1203 (2006). Constitutional due process is a flex- ible concept in that the protections required vary depending upon the importance of the specific interests at stake. But the basic elements of procedural due process are notice and an opportunity to be heard at a meaningful time and in a meaningful manner. In re Care & Treatment of Ellison, 305 Kan. 519, 526, 385 P.3d 15 (2016).

DOES DUE PROCESS REQUIRE A DISTRICT COURT TO INFORM A DEFENDANT OF THE DENIAL OF A MOTION TO WITHDRAW PLEA?

Maberry asserts the district court erred by denying his out-of- time appeal because "the district court's failure to notify him of the adverse decision in his case violated due process." When reviewing a due process claim, we first consider whether the government deprived a person of a protected liberty or property interest. If a protected liberty or property interest is implicated, we must then determine the nature and extent of the process that is due. Village Villa v. Kansas Health Policy Author- ity, 296 Kan. 315, 331, 291 P.3d 1056 (2013). Due process is flex- ible in that not all situations calling for procedural safeguards call for the same kind of procedure. See In re Care & Treatment of Ellison, 305 Kan. at 526. Although the right to appeal is entirely statutory, "where the legislature has provided the right of an appeal, the minimum essential elements of due process of law in an appeal affecting a person's life, liberty, or property are notice and an opportunity to be heard at a meaningful time and in a meaningful manner." Nguyen v. IBP, Inc., 266 Kan. 580, 588, 972 P.2d 747 (1999). "To satisfy due process, notice must be reasonably calculated, under all the 222 COURT OF APPEALS OF KANSAS VOL. 58

State v. Maberry circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." 266 Kan. at 588. The plain language of Supreme Court Rule 134(a) (2020 Kan. S. Ct. R. 200) provides: "If the court rules on a motion or other application when an affected party who has appeared in the action is not present—either in person or by the party's attorney—the court immediately must serve notice of the ruling." Notice is required to ensure that the party with the right to appeal has actual knowledge that an adverse judgment has been rendered. McDon- ald v. Hannigan, 262 Kan. 156, 163, 936 P.2d 262 (1997). Importantly, Kansas caselaw provides that the time for taking an appeal does not begin to run until the party entitled to appeal has received notice of the judgment in compliance with Supreme Court Rule 134. McDonald, 262 Kan. at 163-64. In particular, our Supreme Court has held that "[t]he time for filing post-judgment motions or taking an appeal from a final judgment entered without notice commences to run when there has been compliance with K.S.A. 60-258 and Rule No. 134." Daniels v. Chaffee, 230 Kan. 32, 38, 630 P.2d 1090 (1981). While K.S.A. 60-258 does not apply in criminal cases, see State v. Moses, 227 Kan. 400, 403, 607 P.2d 477 (1980), Rule 134 applies to both civil and criminal cases. Since Daniels, Kansas courts have repeatedly stated that compliance with Rule 134 is required before the time to take an appeal begins to run. See, e.g., McDonald, 262 Kan. at 163-64; JPMor- gan Chase Bank v. Taylor, No. 117,774, 2018 WL 2170210, at *4-5 (Kan. App. 2018) (unpublished opinion). Because Maberry was an affected party who was not present in court or represented by an attorney when the district court issued its ruling summarily denying his motion to withdraw plea, the time for taking an appeal would begin to run when Maberry was served with notice of the order. Did the district court substantially comply with the requirement that it serve Maberry with notice of the ruling denying his motion to withdraw plea? Unfortunately, the record is insufficient for us to definitively answer this important question. On the one hand, the order did not include a certificate of service or cover letter indicating that it was mailed to Maberry and, VOL. 58 COURT OF APPEALS OF KANSAS 223

State v. Maberry if so, where it was sent. Maberry's November 13, 2018 letter to the district court alleged that he had not heard about the district court setting the motion for a hearing and indicating displeasure at the delay. This suggests that if the order was sent, Maberry did not receive it. Moreover, there is no indication that the district court responded to this letter or provided Maberry with a copy of the order in response to his letter. On the other hand, the order did have a "CC: Christopher Ma- berry" typed at the bottom of the order, and in Maberry's February 25, 2019 pro se motion to appeal out of time, he asserted that he was not "notified of the Court's denial until November 27, 2018." While Maberry acknowledges being notified of the order as of this late date, whether this notification came from the district court is unknown. The contents of this notice are also not described. Under these circumstances, we are unable to determine whether the district court substantially complied with Supreme Court Rule 134(a). And without knowing whether the district court followed the rule's directive and immediately served notice of the ruling on Maberry, we are unable to conclude whether, in accordance with Daniels and its progeny, Maberry's due process right to notice and an opportunity to be heard has been violated. See In re Care & Treatment of Ellison, 305 Kan. at 526. In short, without findings of fact regarding whether the district court substantially complied with Supreme Court Rule 134(a), we are unable to conclude as a matter of law whether Maberry is entitled to file an out-of-time appeal. The lack of specific findings of fact on this important issue precludes meaningful appellate review and necessitates a remand to the district court. See State v. Thurber, 308 Kan. 140, 232, 420 P.3d 389 (2018). Accordingly, we vacate the district court's summary dismissal of the motion to appeal out of time and remand with directions to make findings of fact regarding whether the district court substantially complied with Supreme Court Rule 134(a). Upon remand, if the district court determines that service of the court's order denying Maberry's motion to withdraw plea was not substantially complied with, the district court shall grant the motion to file an out- of-time appeal. On the other hand, if the district court determines that service of the court's order denying Maberry's motion to withdraw plea was substantially complied with, the district court shall 224 COURT OF APPEALS OF KANSAS VOL. 58

State v. Maberry reconsider its prior ruling, including, if appropriate, reinstating its prior ruling denying Maberry's motion to file an out-of-time appeal.

DOES DUE PROCESS REQUIRE A DISTRICT COURT TO INFORM A DEFENDANT OF THE RIGHT TO APPEAL THE DENIAL OF A MOTION TO WITHDRAW PLEA?

On appeal, Maberry contends the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Sec- tion 18 of the Kansas Constitution Bill of Rights requires the district court to inform him of the right to appeal and the statutory time limit to appeal the denial of his motion to withdraw plea. Since the district court did not inform him of his appellate rights, Maberry claims he is entitled to an out-of-time appeal and the district court erred by denying his motion to file an appeal out of time. In State v. Ortiz, 230 Kan. 733, 640 P.2d 1255 (1982), our Supreme Court recognized three judicial exceptions to the general rule barring untimely direct appeals. The Ortiz exceptions provide that an untimely direct appeal will be allowed if the criminal defendant "'(1) was not informed of the right to appeal at sentencing or by counsel, (2) was indigent and not furnished counsel to perfect an appeal, or (3) was furnished counsel for that purpose who failed to perfect and complete an appeal.' [Citations omitted.]" State v. Shelly, 303 Kan. 1027, 1036, 371 P.3d 820 (2016) (quoting Albright, 292 Kan. at 198). Following the Ortiz decision, our Supreme Court has elabo- rated on the concepts underlying the first Ortiz exception—not being informed of the right to appeal. See State v. Patton, 287 Kan. 200, 219-22, 195 P.3d 753 (2008). In Patton, our Supreme Court explained that three Kansas statutes provide procedural safeguards to a criminal defendant's rights to appeal. 287 Kan. at 219. First, K.S.A. 22-3210(a)(2) requires a judge to inform a felony defendant of the consequences of a guilty or nolo contendere plea, including waiver of the right to appeal any resulting conviction. Second, as interpreted by caselaw, K.S.A. 22-3424(f) requires a sentencing court to advise a defendant of the right to appeal and of the right of an indigent defendant to appeal in forma pauperis. VOL. 58 COURT OF APPEALS OF KANSAS 225

State v. Maberry

Third, K.S.A. 22-4505(a) requires a district court to inform a felony defendant of the right to appeal a conviction. In summary: "Due process is denied—and an out-of-time appeal may be permissible under the first Ortiz exception—if a district judge fails to abide by one of these statutes." Patton, 287 Kan. at 220. The Ortiz exceptions to an untimely appeal, however, do not apply in the context of a motion to withdraw plea. Hemphill, 286 Kan. at 591-92. Our Supreme Court in Hemphill explained that the first Ortiz exception was created to comply with statutory requirements to inform a defendant of the right to appeal and a district court has no similar statutory obligation regarding the denial of a motion to withdraw a plea. Hemphill, 286 Kan. at 591-92. In addition to the first Ortiz exception:

"The fundamental fairness principle underlying all three exceptions recognized in Ortiz and its progeny is based on the facts that the defendant's failure to timely appeal was the result of being deprived of a right to which he or she was entitled by law: the statutory right to be advised of the right to appeal; the statutory right to be provided an attorney to file an appeal; or the right to have the appointed attorney perform effectively in perfecting the appeal." Guillory v. State, 285 Kan. 223, 228, 170 P.3d 403 (2007).

Maberry argues that the first Ortiz exception applies, and the Hemphill court wrongly held that the Ortiz exceptions were inapplicable on an appeal of a motion to withdraw plea. Of course, we are duty bound to follow Kansas Supreme Court precedent unless there is some indication the court is departing from its previous position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). We find no indication that our Supreme Court is departing from its clearly stated precedent that the Ortiz exceptions are inapplicable on a motion to withdraw plea. Accordingly, we find that Maberry is not entitled to an out-of-time appeal under the Ortiz exceptions. Next, Maberry claims that—independent of Hemphill—due process required the district court to inform Maberry of his right to appeal the denial of his motion to withdraw plea. To establish a due process violation, Maberry must show that he was denied a specific procedural protection to which he is entitled. Winston v. Kansas Dept. of SRS, 274 Kan. 396, 409, 49 P.3d 1274 (2002). When considering the procedural protections required, we weigh: 226 COURT OF APPEALS OF KANSAS VOL. 58

State v. Maberry

"'(1) the individual interest at stake; (2) the risk of erroneous deprivation of the interest through the procedures used and the probable value, if any, of additional or substitute procedural safeguards; and (3) the State's interest in the procedures used, including the fiscal and administrative burdens that any additional or substitute procedures would entail.'" In re A.A.-F., 310 Kan. 125, 145, 444 P.3d 938 (2019) (quoting In re J.D.C., 284 Kan. 155, 166-67, 159 P.3d 974 [2007]).

When considering the first factor—the individual interest at stake, we find this factor weighs against Maberry. The right to appeal is not found in the United States or Kansas Constitutions. Rocheleau, 307 Kan. at 763. Indeed, according to the United States Supreme Court, "a State is not obliged to provide any appeal at all for criminal defendants." Ross v. Moffitt, 417 U.S. 600, 606, 94 S. Ct. 2437, 41 L. Ed. 2d 341 (1974). For this reason, courts have rejected claims that a trial court violated a criminal defendant's due process rights by failing to inform the defendant of the right to appeal a determination about the voluntariness of a plea. See, e.g., Samuels v. Crickmar, No. CV 113-084, 2014 WL 4463240, at *8-9 (S.D. Ga. 2014) (unpublished opinion). In finding that a criminal defendant has no federal due process right to counsel when pursuing a discretionary appeal on direct review of a conviction, the United States Supreme Court in Ross noted the difference between a defendant's interests at trial and on appeal. 417 U.S. at 610-11. The court noted:

"[I]t is ordinarily the defendant, rather than the State, who initiates the appellate process, seeking not to fend off the efforts of the State's prosecutor but rather to overturn a finding of guilt made by a judge or a jury below. . . . This difference is significant for, while no one would agree that the State may simply dispense with the trial stage of proceedings without a criminal defendant's consent, it is clear that the State need not provide any appeal at all. The fact that an appeal has been provided does not automatically mean that a State then acts un- fairly by refusing to provide counsel to indigent defendants at every stage of the way. [Citation omitted.]" 417 U.S. at 610-11.

Since postconviction relief is even further removed from the original criminal proceedings than discretionary direct review, the considerations in Ross apply with even more persuasive force when considering due process requirements for postconviction review. Pennsylvania v. Finley, 481 U.S. 551, 556, 107 S. Ct. 1990, 95 L. Ed. 2d 539 (1987).

VOL. 58 COURT OF APPEALS OF KANSAS 227

State v. Maberry

Regarding the second In re A.A.-F. factor, Maberry also argues that the risk of erroneous deprivation of a pro se defendant's rights to appellate review is significant. He reasons that when a motion to withdraw plea is summarily denied—as occurred in this case—the defendant is never appointed counsel who could advise the defendant of his or her appellate rights. But contrary to Maberry's position, pro se litigants are not excused from the requirement to be aware of and follow rules of procedure, including filing a timely notice of appeal. Guillory, 285 Kan. at 229. In Guillory, our Supreme Court noted that after the district court summarily denied the defendant's pro se motion, "[t]he certificate of mailing shows that a copy of the decision was sent to Guillory at the El Dorado Correctional Facility." 285 Kan. at 223-24. Importantly, our Supreme Court considered whether fundamental fairness excused the K.S.A. 60-1507 movant's untimely appeal when the district court failed to inform Guillory of his appellate rights after summarily denying his motion. Because no statute required the district court to advise a K.S.A. 60-1507 movant of his or her appellate rights, our Supreme Court did not excuse the movant's untimely appeal. 285 Kan. at 228-29. Although Guillory involved a K.S.A. 60-1507 motion, many procedural aspects of K.S.A. 60-1507 proceedings are incorpo- rated into postsentencing motions to withdraw a plea, including when appointment of counsel is required. State v. Laughlin, 310 Kan. 119, 122-23, 444 P.3d 910 (2019). As a result, "if there is no substantial question of law or triable issue of fact and the files and records conclusively show that the defendant is not entitled to relief on the motion, then there is no requirement that a hearing be held or that counsel be appointed." State v. Jackson, 255 Kan. 455, 461, 874 P.2d 1138 (1994). In Maberry's case, since the district court did not find a substantial issue of law or triable issue of fact in his motion to withdraw plea, Maberry's statutory right to counsel was not triggered. Laughlin, 310 Kan. at 123-24. Thus, like the movant in Guillory, provided Maberry was served with notice of the summary denial, he was required to comply with the statutory deadline to file a timely notice of appeal.

228 COURT OF APPEALS OF KANSAS VOL. 58

State v. Maberry

While we acknowledge that the third factor—the financial burden to the State—would be slight, upon balancing all three relevant factors stated in In re A.A.-F., we hold that due process did not require the district court to inform Maberry of his right to appeal and the statutory time limit to appeal the denial of his motion to withdraw plea. When a defendant is not informed of appellate rights, fundamental fairness only excuses an untimely notice of appeal if the defendant had a statutory right to be advised of the right to appeal. See Guillory, 285 Kan. at 228. Because the district court was not required by Kansas law to advise Maberry of his rights to appeal the denial of his motion to withdraw plea, due process did not mandate that he was entitled to an out-of-time appeal simply because of the court's failure to inform him of his appellate rights. Thus, we affirm the district court as to the second issue.

Affirmed in part, vacated in part, and remanded with directions. VOL. 58 COURT OF APPEALS OF KANSAS 229

State v. Mejia

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No. 121,475

STATE OF KANSAS, Appellant, v. MICHAEL VINCENT MEJIA, Appellee.

___

SYLLABUS BY THE COURT

MOTOR VEHICLES—Driving under Influence—Out of State Conviction May Be Used to Enhance DUI Charge. A conviction from another state for driving under the influence may be used to enhance a DUI charge under K.S.A. 2019 Supp. 8-1567 from a misdemeanor to a felony or to increase the punishment of a recidivist, even though the other state's statute proscribes a broader range of conduct. The two statutes need only be generally comparable as defined in K.S.A. 2019 Supp. 8-1567(j).

Appeal from Johnson District Court; THOMAS M. SUTHERLAND, judge. Opinion filed May 22, 2020. Reversed and remanded with directions.

Jacob M. Gontesky, assistant district attorney, Stephen M. Howe, district attorney, and Derek Schmidt, attorney general, for appellant.

Danielle Hamilton Slate, public defender, and Michelle Durrett, deputy public defender, of Olathe, for appellee.

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

ATCHESON, J.: The State charged Defendant Michael Vincent Mejia with driving under the influence, a violation of K.S.A. 8- 1567, and relied on three Missouri convictions to elevate the offense from a misdemeanor to a felony. The Johnson County Dis- trict Court declined to bind Mejia over at the preliminary hearing because his Missouri convictions were based on a statute that proscribed a broader range of conduct than K.S.A. 8-1567. The State has appealed. We reverse and remand with directions to the district court to reinstate the felony DUI charge against Mejia. The Kansas Legis- lature has amended K.S.A. 8-1567 to permit charging and sentencing enhancements for DUIs based on out-of-state convictions under statutes that are comparable to Kansas law—meaning "similar to" rather than the same as or narrower than Kansas law. The amendment applies in this case. The relevant Missouri statute, Mo. Rev. Stat. § 577.010, is similar to K.S.A. 8-1567, so Mejia's 230 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mejia convictions support the felony charge, consistent with the legislative policy behind the escalating punishment of recidivist drunk drivers. Intoxicated drivers pose an indisputably serious and, indeed, often lethal danger to the motoring public.

CASE HISTORY

The factual circumstances of Mejia's arrest in October 2018 are irrelevant to the issue before us. The State initially charged Mejia with a misdemeanor DUI and later filed an amended complaint elevating the charge to a fourth offense and, thus, a felony under K.S.A. 2018 Supp. 8-1567. The State identified three convictions Mejia had for violating Mo. Rev. Stat. § 577.010 that proscribes "driving while intoxicated" as the basis for the felony charge. Mejia filed a motion challenging the use of his Missouri convictions to elevate the DUI charge to a felony. After further briefing, the district court filed a seven-page journal entry finding that the State could not rely on the Missouri convictions under Mo. Rev. Stat. § 577.010 because that statute proscribed a broader range of conduct than K.S.A. 8-1567. In reaching that conclusion, the district court relied, in part, on State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), that held out-of-state convictions used in establishing defendants' criminal histories under the Kansas Crimi- nal Code had to prohibit the same or a narrower range of conduct to be comparable to a Kansas crime. The district court also held that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and its application in Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), and State v. Dickey, 301 Kan. 1018, 350 P.3d 1054 (2015), limited its review to a comparison of the statutory elements of Mo. Rev. Stat. § 577.010 and K.S.A. 2018 Supp. 8-1567 without considering the facts underlying Mejia's Missouri convictions. The ruling, issued in early May 2019, did not grant Mejia any specific relief and simply outlined the district court's view on how his Missouri convictions should be treated. The district court held a preliminary hearing about three weeks later. The State had also charged Mejia with driving while suspended under K.S.A. 2018 Supp. 8-262 and felony evading or VOL. 58 COURT OF APPEALS OF KANSAS 231

State v. Mejia attempting to elude a police officer under K.S.A. 2018 Supp. 8- 1568. Adhering to its earlier written ruling, the district court declined to bind Mejia over for trial on the felony DUI charge. The district court found probable cause to hold Mejia for trial on the other felony and set the driving while suspended charge for trial. Shortly after the district court's ruling at the preliminary hearing, the State dismissed both of those charges without prejudice. The State has appealed the district court's rejection of the felony DUI charge.

LEGAL ANALYSIS

A. Legal Basis for State's Appeal; Standard of Review

Before turning to the principal issue, we dispose of Mejia's argument that the State has improperly appealed the district court's ruling. In a criminal case, the State may appeal adverse rulings only in specific statutorily identified circumstances. A district court's dismissal of a complaint is one of them. K.S.A. 2019 Supp. 22-3602(b)(1). Here, the district court effectively dismissed the complaint against Mejia for felony DUI when it refused to bind him over for trial on that charge. The district court then granted the State's motion to dismiss without prejudice the remaining charges against Mejia. Taken in tandem, the district court's refusal to hold Mejia on the felony DUI charge and its order of dismissal of the other charges brought the State within the scope of K.S.A. 2019 Supp. 22-3602(b)(1). See State v. Phelps, 266 Kan. 185, 194, 967 P.2d 304 (1998); State v. Freeman, 234 Kan. 278, 282, 670 P.2d 1365 (1983). The State, therefore, has properly appealed the district court's dismissal of the felony DUI charge. The State's use of Mejia's Missouri convictions as predicate offenses under K.S.A. 2018 Supp. 8-1567 does not rest on the district court's resolution of conflicting testimony or other disputed facts. Rather, we must construe the Kansas and Missouri statutes governing drunk driving in light of established legal principles and a few settled facts. The task presents only questions of law we may answer without deference to the district court. State v. Turner, 293 Kan. 1085, 1086, 272 P.3d 19 (2012) (statutory construction presents question of law subject to unlimited review on appeal); 232 COURT OF APPEALS OF KANSAS VOL. 58

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State v. Bennett, 51 Kan. App. 2d 356, 361, 347 P.3d 229 (2015) (when material facts undisputed, issue presents question of law).

B. Misplaced Reliance on Wetrich as Controlling Authority

We now take up the propriety of the district court's decision. The basic flaw in Mejia's argument and, in turn, the district court's ruling lies in the assumption that Wetrich governs. The Wetrich decision sets a standard for determining the comparability of out- of-state criminal convictions to Kansas crimes for purposes of computing defendants' criminal histories for sentencing under the Kansas Criminal Code. That is a broad function applicable to hundreds of crimes defined in Chapter 21. But the Kansas Supreme Court has recognized that K.S.A. 8- 1567, outlawing driving under the influence, is distinct from Chapter 21—it reposes in Chapter 8—and should be treated as an essentially self-contained proscriptive and punitive statute. State v. Reese, 300 Kan. 650, 654, 333 P.3d 149 (2014) ("Kansas' DUI law is a self-contained criminal statute, which means that all essential components of the crime, including the elements, severity levels, and applicable sentences, are included within the statute."). In other words, what's required or good for Chapter 21 isn't necessarily so for K.S.A. 8-1567. As the Reese court explained: "Given that the DUI statute provides its own sentencing provisions, cases relating to the proper application of the [revised] Kan- sas Sentencing Guidelines Act (KSGA) are of minimal precedential value." 300 Kan. at 654. By its own pronouncement, then, the Kansas Supreme Court should not construe Wetrich to be controlling authority for K.S.A. 8-1567 and ought to treat it as advisory guidance to the extent it might be analogous.

C. Wetrich Inapposite as Analogous Authority

As we explain, the analogy between comparing out-of-state convictions for criminal history purposes under Chapter 21 generally, on the one hand, and the particularized use of out-of-state convictions for impaired driving offenses in making charging and sentencing decisions under K.S.A. 8-1567, on the other, is not an especially tight one. Moreover, after Wetrich and before Mejia's arrest, the Kansas Legislature amended K.S.A. 8-1567 to ward off VOL. 58 COURT OF APPEALS OF KANSAS 233

State v. Mejia the application of Wetrich. See L. 2018, ch. 106, § 13. Again, as we explain, the legislative intent behind the amendment is quite apparent, although the way it functions in practice isn't as clear.

1. Issue and Holding in Wetrich

We first look at the Chapter 21 sentencing issue decided in Wetrich. There, Wetrich faced sentencing on multiple felonies in Johnson County District Court. Under the sentencing guidelines, Wetrich's presumptive prison terms for those felonies depended, in part, on his criminal history that included a Missouri burglary conviction. The legal dispute focused on how that Missouri conviction should be scored in determining Wetrich's criminal history. Under K.S.A. 2017 Supp. 21-6811(e)(2)(A) and (3), an out- of-state felony conviction should be classified as a person felony if the "comparable" Kansas crime were designated a person offense. If there were no comparable Kansas crime, the out-of-state felony conviction should be classified as a nonperson felony. Per- son felonies have a markedly greater impact on a defendant's criminal history score and the resulting presumptive term of imprisonment than do nonperson felonies. Before the Kansas Supreme Court decided Wetrich, the district courts and the Court of Appeals construed the statutory term "comparable" to mean "similar to," so an out-of-state conviction for a crime that generally replicated a Kansas crime would be classified as a person or nonperson offense consistent with the Kansas crime. In some instances, the out- of-state statute might criminalize a broader range of conduct than the Kansas criminal statute. See, e.g., State v. Moore, 52 Kan. App. 2d 799, 813-14, 377 P.3d 1162 (2016) (citing State v. Wil- liams, 299 Kan. 870, 873, 326 P.3d 1070 [2014]). The Wetrich court found the word "comparable" as used in K.S.A. 2017 Supp. 21-6811(e)(3) to be ambiguous in that it could mean "'[c]apable of being compared'" or "'[l]ike or equivalent'" or "'akin . . . close'" or "'identical . . . without distinction.'" 307 Kan. at 560. To resolve the ambiguity, the court looked at how the sentencing guidelines should be construed to promote like punishments for similarly situated defendants—a principal legislative purpose in adopting the guidelines. 307 Kan. at 560-61. The court 234 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mejia reasoned that uniformity in sentencing would be fostered by requiring that the statutory elements of an out-of-state conviction be the same as or narrower than the elements of the "comparable" Kansas statute for criminal history purposes. That is, an out-of- state crime would not be comparable to a Kansas crime if its statutory definition criminalized more conduct than a similar Kansas statute. 307 Kan. at 561-62. As a result, a conviction resting on a broader out-of-state statute would have to be scored as a nonperson offense in determining a criminal defendant's criminal history. Wetrich benefited from that new rule by having his Missouri burglary conviction reclassified as a nonperson felony. See 307 Kan. at 563-64. Without that limitation on comparable offenses, the court feared rampant "ad hoc" decisions among the district courts in classifying out-of-state convictions for criminal history purposes. 307 Kan. at 561. One district court might view a particular out-of- state conviction as sufficiently similar to a particular Kansas crime whereas another district court would not. That would lead to differing criminal histories and differing presumptive sentences for similarly situated defendants. Given the number of crimes identified in Chapter 21, the number of potentially comparable crimes in the remaining 49 states, and the number of district courts making comparisons, the scale of the potential deviations across cases would be, to put it mildly, large. The Legislature has since amended K.S.A. 21-6811(e)(3) to change how out-of-state convictions are classified as person or nonperson offenses. The issue for us, however, is whether the method of analysis and result in Wetrich apply by analogy to K.S.A. 8-1567, so the current version of K.S.A. 21-6811(e)(3) has no direct relevance to our inquiry.

2. Focused Scope and Public Policies of K.S.A. 8-1567 Dis- tinguish Wetrich

The rule and rationale of Wetrich do not ineluctably carry over to the charging and sentencing of recidivist drunk drivers under K.S.A. 8-1567. To the contrary, there are good reasons to conclude they don't. First, of course, is the court's own cleaving of Chapter 21 crimes from K.S.A. 8-1567 in Reese. VOL. 58 COURT OF APPEALS OF KANSAS 235

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In addition, the focused public safety policies that animate the charging and sentencing enhancements in K.S.A. 8-1567 coupled with the narrow scope of the targeted behavior largely erase the concerns in Wetrich about substantial sentencing disparities resulting from the sheer breadth of the criminal code. To state the obvious, K.S.A. 8-1567 punishes a driver for operating or attempting to operate a motor vehicle under the influence of alcohol or other intoxicants. The statute prohibits operating a motor vehicle if a person is "incapable of safely driving." K.S.A. 2019 Supp. 8- 1567(a)(3). And it prohibits driving with a blood-alcohol level of 0.08 or more regardless of the degree of impairment or having a blood-alcohol level that high within three hours after driving. K.S.A. 2019 Supp. 8-1567(a)(1) and (2). That's a considerably more confined ballpark than the widely varied conduct criminalized in Chapter 21, ranging from murder to theft to bribing public officials. For decades, legislative bodies and courts have recognized the special danger drunk drivers pose to other motorists and, hence, the public at large. Birchfield v. North Dakota, 579 U.S. ___, 136 S. Ct. 2160, 2166, 195 L. Ed. 2d 560 (2016) ("Drunk drivers take a grisly toll on the Nation's roads, claiming thousands of lives, in- juring many more victims, and inflicting billions of dollars in property damage every year."); Michigan Dept. of State Police v. Sitz, 496 U.S. 444, 451, 110 S. Ct. 2481, 110 L. Ed. 2d 412 (1990) (likening the deaths and injuries caused by drunk drivers to losses "'only heard of on the battlefield'") (quoting Breithaupt v. Abram, 352 U.S. 432, 439, 77 S. Ct. 408, 1 L. Ed. 2d 448 [1957]); State v. Sedillos, 279 Kan. 777, 784-85, 112 P.3d 854 (2005); State v. Kitz- man, 240 Kan. 191, 194, 727 P.2d 491 (1986). In turn, legislatures have regularly revised DUI statutes to make them more effective in discouraging drunk driving. See Birchfield, 136 S. Ct. at 2169; Sedillos, 279 Kan. at 784-85. And police agencies have deployed various enforcement tools, such as DUI checkpoints and satura- tion patrols targeting impaired drivers, to both deter and intercept drunk drivers. See Sitz, 496 U.S. at 447 (DUI checkpoints constitutionally permissible if conducted within certain guidelines). Consistent with those enforcement efforts, the Kansas Legis- lature has enacted escalating penalties for successive DUI convictions to deter recidivism. See K.S.A. 2019 Supp. 8-1567(b)(1)(A)- 236 COURT OF APPEALS OF KANSAS VOL. 58

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(E). In addition, a driver with two previous DUI convictions, including one in the past 10 years, or three DUI convictions any time after July 1, 2001, faces a felony rather than a misdemeanor if he or she is again charged with DUI. See K.S.A. 2019 Supp. 8- 1567(b)(1)(D) and (i)(1). Felony convictions carry significant collateral consequences misdemeanor convictions do not. See State v. Dugan, 47 Kan. App. 2d 582, 600-01, 276 P.3d 819 (2012). And that brings the issue in Mejia's case front and center: What out- of-state convictions count as predicates for a felony charge or increased punishments under K.S.A. 2019 Supp. 8-1567? Two subsections of K.S.A. 8-1567 yield the answer. First, K.S.A. 2019 Supp. 8-1567(i)(3) defines "conviction" to include "a violation of . . . any law of another jurisdiction that would constitute an offense that is comparable to" a DUI under K.S.A. 8- 1567(a) or several other offenses that also require the operation of a motor vehicle or a vessel while intoxicated. Second, after the Kansas Supreme Court issued Wetrich and before Mejia's arrest, the Legislature added clarifying language in K.S.A. 2019 Supp. 8- 1567(j) explaining comparability:

"For the purposes of determining whether an offense is comparable, the following shall be considered: "(1) The name of the out-of-jurisdiction offense; "(2) the elements of the out-of-jurisdiction offense; and "(3) whether the out-of-jurisdiction offense prohibits similar conduct to the conduct prohibited by the closest approximate Kansas offense." L. 2018, ch. 106, § 13.

The two subsections should be considered together. As a practical matter, the three-factor test for comparability in K.S.A. 2019 Supp. 8-1567(j) turns on the elements of the out-of-state offense. Presumably, the name of a statute proscribing conduct would include some description of that conduct generally conforming to the elements of the offense. And a determination of the prohibited conduct identified in the out-of-state offense would require a review of the statutory elements, since that's their fundamental purpose. But, as described in K.S.A. 2019 Supp. 8-1567(j)(3), the elements need only be "similar" to the elements of DUI in K.S.A. 2019 Supp. 8-1567(a) or the other listed offenses, all of which also VOL. 58 COURT OF APPEALS OF KANSAS 237

State v. Mejia include the operation of vehicles under the influence. The Legis- lature's use of the word "similar" certainly suggests an out-of-state conviction need not match a conviction under K.S.A. 2019 Supp. 8-1567(a) to be considered "comparable" for purposes of charging and punishing a recidivist. See The American Heritage College Dictionary 1292 (4th ed. 2004) (defining "similar" as "[r]elated in appearance or nature; alike though not identical"); see also Mid- west Crane & Rigging, LLC v. Kansas Corporation Comm'n, 306 Kan. 845, 851, 397 P.3d 1205 (2017) (words of statute typically given their ordinary meaning, absent specialized statutory definition; common dictionaries appropriate source for those usual meanings). In ordinary usage, then, similarity conveys a qualita- tive likeness—things that have material common attributes, though there may be differences. So performing in a play would be both similar to (and broader than) musical theater specifically and similar to (but narrower than) acting generally. It wouldn't be particularly like skydiving or carpentry.

3. Construing Statutory Purpose of Comparability of Predi- cate Offenses

In construing a comprehensive statutory scheme such as the one for identifying and punishing driving under the influence, an appellate court must, as a first priority, strive to honor the legislative intent and purpose. See State v. Barlow, 303 Kan. 804, 813, 368 P.3d 331 (2016); In re Marriage of Traster, 301 Kan. 88, 98, 339 P.3d 778 (2014). The court should look initially to the words of a statute to discern legislative intent. Barlow, 303 Kan. at 813. If the operative language is open to more than one reasonable interpretation, a 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. at 98. The court may also review the legislative history of the statute and apply canons of construction to hone otherwise ambiguous language. Barlow, 303 Kan. at 813. As we parse the statutory language here, we presume the Kan- sas Supreme Court's linguistic premise in deciding Wetrich that the word "comparable"—common to K.S.A. 2019 Supp. 8- 1567(i)(3) and K.S.A. 2019 Supp. 21-6811(e)(3)—is ambiguous and would be so in both statutes. The recent amendment to K.S.A. 238 COURT OF APPEALS OF KANSAS VOL. 58

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8-1567 displays a legislative intent to avert Wetrich's the-same-as- or-narrower-than test for comparable out-of-state convictions when it comes to DUIs. The amendment, in that sense, clarified the meaning of the existing statutory language rather than changing it, reflecting a legislative effort to inoculate K.S.A. 8-1567 against any argument that Wetrich should govern by analogy. See Brennan v. Kansas Insurance Guaranty Ass'n, 293 Kan. 446, 458- 59, 264 P.3d 102 (2011) (discussing purpose and effect of clarifying amendment). To assess the meaning of the statutory language, given the presumed ambiguity of "comparable" in describing relevant out-of-state convictions triggering the recidivist provisions of K.S.A. 8-1567, we may consider legislative history. Particu- larly instructive here is the explanatory introduction to the bill that became K.S.A. 8-1567(j):

"WHEREAS, The Legislature intends that the provisions of this act related to comparability of an out-of-jurisdiction offense to a Kansas offense shall be liberally construed to allow comparable offenses, regardless of whether the elements are identical to or narrower than the corresponding Kansas offense, to be included in a person's criminal history; and "WHEREAS, The Legislature intends to promote the inclusion of convictions for such offenses in a person's criminal history, including, but not limited to, any violation of: . . . Missouri, V.A.M.S. § 577.010 or V.A.M.S. § 577.012." L. 2018, ch. 106, Preamble.

The introductory "whereas" clauses of a bill typically do not become part of the statute, as was true here; but they may shine a bright light on legislative intent, as is also true here. The purpose of K.S.A. 2019 Supp. 8-1567(j) is to require broad consideration of "comparable" predicate offenses for purposes of imposing felony charges and escalated penalties on repeat DUI offenders. The Legislature specifically rejected Wetrich's considerably more con- strained interpretation of K.S.A. 2017 Supp. 21-6811 and, con- spicuously for our purposes, cited Mo. Rev. Stat. § 577.010 as illustrative of a comparable statute. In short, the Legislature intended that out-of-state convictions under statutes proscribing broader conduct than K.S.A. 8-1567(a) trigger the recidivist provisions under K.S.A. 8-1567(b), so long as the conduct is similar. Unlike the district court, we do not see Wetrich overriding the legislative intent animating the use of similar, though broader, out- of-state convictions under K.S.A. 8-1567(b). Although Wetrich VOL. 58 COURT OF APPEALS OF KANSAS 239

State v. Mejia alludes to constitutional concerns—a point we address shortly— the decision rests on a statutory ground tied to the criminal code as a whole: The fear that similarly situated defendants will receive disparate sentences because the innumerable permutations of Kansas crimes and potentially "comparable" out-of-state crimes for purposes of scoring their criminal histories will lead district courts to discordant results. However real that danger may be in determining criminal histories for defendants convicted of Chap- ter 21 crimes, it is not replicated under K.S.A. 8-1567. To be sure, similarly situated defendants should face comparable charges for repeatedly driving under the influence—misde- meanors or felonies—and comparable punishments upon conviction. But the universe of comparable offenses available to make those determinations is relatively circumscribed in that only convictions dependent upon conduct similar to that proscribed in K.S.A. 8-1567 will make the cut. That substantially curtails the chances of conflicting outcomes from different district courts. So does the requirement that comparability of the out-of-state conviction must be determined using only the statutory elements of the offense measured against the elements of the violations in K.S.A. 8-1567(a). The particular facts supporting the defendant's out-of-state conviction are irrelevant and cannot be considered. The use of elements alone removes all kinds of line-drawing dependent upon case-specific circumstances that could readily foster disparate results. An elements-based comparison to the exclusion of case-specific circumstances also eliminates any potential constitutional defect grounded in judicial fact-finding usurping a defendant's right to have a jury determine aggravating facts that elevate the permissible punishment above a stated statutory maximum. See Apprendi, 530 U.S. at 490; Dickey, 301 Kan. at 1021.[1]

[1]The Wetrich court expressed some reservation that Ap- prendi and its application in Mathis v. United States, 579 U.S. ___, 136 S. Ct. 2243, 2252-53, 195 L. Ed. 2d 604 (2016), might constitutionally mandate a requirement that an out-of-state conviction used in calculating a defendant's criminal history be based on a statute no broader than the comparable Kansas crime. Wetrich, 307 Kan. at 558. The court, however, did not examine the constitutional issue because it resolved the case on statutory grounds. 240 COURT OF APPEALS OF KANSAS VOL. 58

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307 Kan. at 558. There doesn't appear to be a constitutional problem. The question in Mathis dealt with whether the defendant's Iowa burglary conviction would qualify as a predicate crime to increase his sentence under the federal Armed Career Criminal Act. Under the Act, the defendant's crime would have to be the same as or narrower than "generic burglary" used as the template for determining a qualifying predicate crime. That reflects a statutory requirement under the Act. The Court in Mathis, however, held that a federal district court would engage in impermissible fact-finding violating Apprendi if it considered the case-specific facts of the defendant's burglary conviction in determining whether the crime fit within the scope of a "generic burglary." The determination could be made only by looking at the elements of the crime as set out in the Iowa burglary statute. 136 S. Ct. at 2253. Under K.S.A. 2019 Supp. 8-1567(i)(3) and (j), there is no analogous issue, since the comparability of predicate offenses turns on their elements alone. And an elements-to-elements comparison requires no more than a legal conclusion devoid of judicial fact- finding. The dissent fails to appreciate this difference when it suggests that Apprendi and Mathis constitutionally mandate a defendant's out-of-state conviction have the same or narrower elements than the comparable Kansas crime to be scored as a person offense for criminal history purposes. So long as the comparison rests on the statutory elements there is no judicial fact-finding implicating the Sixth Amendment right to jury trial. See Mathis, 136 S. Ct. at 2252 (Given Apprendi, a district court "can do no more, consistent with the Sixth Amendment, than determine what crime, with what elements, the defendant was convicted of.").

D. Applying Legislative Standard for Comparability of Predicate Offenses

In a DUI prosecution, the Kansas Legislature intends comparable out-of-state convictions to include those under statutes that proscribe broader conduct than K.S.A. 8-1567. The Legislature's use of the word "similar" in K.S.A. 2019 Supp. 8-1567(j)(3) to describe the type of proscribed conduct qualifying an out-of-state conviction as comparable points to that conclusion. The legislative history, in turn, spotlights the precise intent and identifies Mo. VOL. 58 COURT OF APPEALS OF KANSAS 241

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Rev. Stat. § 577.010 as illustrative of the legislative design and the public policy behind it. As we have suggested, the proscription in Mo. Rev. Stat. § 577.010 is unadorned simplicity: A person is guilty if he or she "operates a vehicle in an intoxicated condition." The term "intoxicated condition" is separately defined as "under the influence of alcohol, a controlled substance, or drug, or any combination thereof." Mo. Rev. Stat. § 577.001.13. In 2014, the Missouri Legislature expanded the statute, effective January 1, 2017, to cover the operation of a "vehicle" rather than just a "motor vehicle." Neither of those terms has been statutorily defined in Chapter 577 governing public safety offenses. We presume Mo. Rev. Stat. § 557.010 is broader than K.S.A. 8-1567(a) in at least two respects. First, the statutorily defined "intoxicated condition" required under Missouri law probably reflects a lesser degree of impairment than being "incapable of safely driving" under K.S.A. 8-1567(a)(3). As a practical matter, the gap may not be all that great insofar as law enforcement officers in both states often initiate traffic stops based on marked driving errors, such as running a red light, or a series of comparatively minor mistakes, such as repeatedly weaving within a lane absent some obvious external reason, that can be indicative of significant impairment. That's not always true, of course. Some DUI arrests begin with minor infractions, but those tend to be cases built on blood-alcohol tests showing the driver over the 0.08 statutory limit. Those prosecutions in either state require no showing of impairment to convict. See K.S.A. 8-1567(a)(1), (2); Mo. Rev. Stat. § 577.012.1(1). But the required comparability of convictions under Mo. Rev. Stat. § 577.010 as predicate offenses for prosecutions under K.S.A. 8-1567 depends upon the statutory elements of each State's offense and any relevant statutory definitions or controlling case authority illuminating those elements. By that standard, Mo. Rev. Stat. § 577.010 is almost certainly broader based on the requisite degree of intoxication, and we presume it to be. As of January 2017, the kinds of vehicles covered under Mo. Rev. Stat. § 577.010 are broader than those covered under K.S.A. 8-1567—a real difference in the statutes, although largely an academic one in the run of prosecutions and convictions. The record indicates Mejia's Missouri convictions preceded the amendment. 242 COURT OF APPEALS OF KANSAS VOL. 58

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But the point is relevant in assessing the Kansas Legislature's intent in 2018 in amending K.S.A. 8-1567(j) to explain comparable offenses. Because the current Missouri statute covers vehicles that K.S.A. 8-1567(a) does not, its elements are necessarily broader than those of a Kansas DUI in that respect, as well. For example, under the old version of Mo. Rev. Stat. § 577.010, the Missouri appellate courts held that a motorized bicycle qualified as a "motor vehicle." See State v. Slavens, 375 S.W.3d 915, 918 (Mo. App. 2012) (citing State v. LaPlante, 148 S.W.3d 347, 350-51 [Mo. App. 2004]). By parity of reasoning, a regular bicycle ought to be considered a "vehicle" under the current version of Mo. Rev. Stat. § 577.010 absent a specialized statutory definition. Merriam-Webster's Collegiate Dictionary 1305 (10th ed. 2001) (defining "vehicle" as "a means of carrying or transporting something" such as a motor vehicle or some other "mechanized equipment"). So an intoxicated bicyclist presumably can now be convicted of impaired driving in Missouri. The Mis- souri appellate courts do not appear to have yet ruled on the issue.[2]

[2]Although drunk bicyclists don't generate the same degree of danger as drunk motorists—bicycles don't pack the same lethal force as motor vehicles—they do pose identifiable hazards. They certainly are dangerous to themselves. And erratic bicyclists (drunk or not) become obstacles motorists have to navigate as ex- pedience sometimes overtakes prudence with unfortunately consequences. Kansas, however, has a limiting statutory definition of the word "vehicle" as used in K.S.A. 8-1567 and for other traffic rules and offenses. As defined in K.S.A. 2019 Supp. 8-1485, a vehicle is "every device" for transporting "any person or property. . . upon a highway" with three exceptions including "devices moved by human power." A bicycle comes within that exception. See City of Wichita v. Hackett, 275 Kan. 848, Syl. ¶ 4, 69 P.3d 621 (2003). In short, drunk bicyclists can be convicted under Mo. Rev. Stat. § 577.010 but not under K.S.A. 8-1567. And based purely on an elements comparison, any conviction under Mo. Rev. Stat. § 577.010 for conduct occurring after January 1, 2017, would be broader than a conviction under K.S.A. 8-1567(a) for that reason. VOL. 58 COURT OF APPEALS OF KANSAS 243

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Determining the type of vehicle would require case-specific fact- finding exceeding the elements of the offense, thereby overstep- ping the statutory directive in K.S.A. 2019 Supp. 8-1567(j) and likely contravening a defendant's constitutional jury trial rights as protected in Apprendi and later authority. Despite the broad scope of Mo. Rev. Stat. § 577.010, the Kan- sas Legislature plainly intended to permit a conviction under that statute to serve as a predicate for enhanced charging and sentencing under K.S.A. 8-1567. That's true even at the outer reaches of Mo. Rev. Stat. § 577.010 proscribing conduct that would not support a DUI conviction in Kansas. The result isn't anomalous. A person who has been convicted in another jurisdiction of operating a vehicle while impaired and then violates K.S.A. 8-1567 is likely a scofflaw, someone with a serious substance abuse problem, and very possibly both. Given the danger drunk drivers pose, the Leg- islature may deploy its police power to increase the punishment of those who don't care enough to control their antisocial behavior or otherwise lack the incentive to get professional help in controlling what they cannot on their own. See State v. Bolin, 200 Kan. 369, 370-71, 436 P.2d 978 (1968) (Legislature validly exercises police power in defining particular acts as criminal); Meehan v. Kansas Dept. of Revenue, 25 Kan. App. 2d 183, 190, 959 P.2d 940 (1998) (Legislature acts within police powers to proscribe and set punishment for driving under the influence). In keeping with the breadth of the danger and the often cata- strophic losses drunk drivers create, we take at face value the Leg- islature's directive in K.S.A. 2019 Supp. 8-1567(i)(3) that the language on comparable convictions from other jurisdictions be "liberally construed." To that end and consistent with the illustrative identification of Mo. Rev. Stat. § 577.010, we conclude the Leg- islature intends that an out-of-state conviction for an offense the elements of which entail the operation of a vehicle while the operator is impaired to some degree by alcohol, drugs, or both should be used to elevate the charge or sentence for a violation of K.S.A. 8-1567(a). Those convictions are for conduct "similar to" the conduct proscribed in Kansas, as the Legislature has used the phrase in K.S.A. 2019 Supp. 8-1567(j)(3) to identify predicate offenses. What we understand the Legislature to mean functionally elimi- 244 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mejia nates any material Wetrich-type problem resulting from inconsistent determinations of comparability in the district courts, since the vast majority of out-of-state convictions for driving-under-the- influence offenses should be counted under K.S.A. 2019 Supp. 8- 1567(i). Our understanding also avoids a potential due process problem identified in Wetrich when a sentencing statute contains impermissibly vague language causing district courts to rely on unmoored "guesswork and intuition" in making their decisions on punishment. 307 Kan. at 561 (quoting Johnson v. United States, 576 U.S. 591, 600,135 S. Ct. 2551, 192 L. Ed. 2d 569 [2015]). Although we have not surveyed statutes proscribing DUI offenses in every state, we recognize that some of them may be considerably broader than K.S.A. 8-1567. For example, Arizona prohibits a person from driving if he or she "is impaired to the slightest degree" by "any combination of liquor, drugs or vapor releas- ing substances." Ariz. Rev. Stat. Ann. § 28-1381(A)(1) (2019). The appellate courts seem to have applied that language as written. See State v. Gill, 234 Ariz. 186, 188, 319 P.3d 248 (Ct. App. 2014) (defendant's admission he had been drinking combined with circumstances of collision sufficient to show he was "'impaired to the slightest degree'"); State v. Askren, 147 Ariz. 436, 438, 710 P.2d 1091 (Ct. App. 1985) (no error in refusing defendant's proposed jury instruction that driver must be impaired "to some significant degree" to be convicted). We conclude the Kansas Legis- lature intends no dispensation from the recidivist provisions of K.S.A. 8-1567 for a driver with a conviction under a statute like Ariz. Rev. Stat. Ann. § 28-1381(A)(1).[3]

[3]The Arizona statute buffers the effect of the "slightest degree" standard for some drivers who take blood-alcohol tests. If the test result is 0.05 percent or less, the statute creates a rebuttable evidentiary presumption, the driver was not under the influence of alcohol. Ariz. Rev. Stat. Ann. § 28-1381(G)(1). The presumption makes no difference in determining whether an Arizona conviction should be treated as a predicate offense under K.S.A. 8-1567, since that determination turns solely on the elements of the Ari- zona offense. The evidentiary presumption does not alter the elements. VOL. 58 COURT OF APPEALS OF KANSAS 245

State v. Mejia

For that person with an Arizona conviction to later drive here while sufficiently impaired by alcohol to be incapable of doing so safely demonstrates the lesson not learned the Legislature has sought to remedy with enhanced penalties for recidivists in K.S.A. 8-1567. The same would be true of convictions from other jurisdictions where the elements entail the operation of a vehicle not covered under K.S.A. 8-1567. The expansive inclusion of out-of- state convictions as predicate offenses necessarily reduces the chances of disparate charging and sentencing decisions to a negli- gible level. In any given case, the district court's inclusion or exclusion of a particular out-of-state conviction may be challenged in an appeal, as the State has done here. Appellate review provides an in- direct check on disparate results across cases by providing guidance to district courts in debatable circumstances going forward. But the legislative approach in K.S.A. 2019 Supp. 8-1567(i) and (j) ought to minimize those debates. In the interest of completeness, we point out that none of the other convictions listed in K.S.A. 2019 Supp. 8-1567(i)(1) and (2) seems to foster any real difficulty in identifying "comparable" offenses from other jurisdictions to be used as predicates for charging and sentencing. Those convictions include:

⦁ Convictions under K.S.A. 8-1567(a) dependent upon the driver having a blood-alcohol level of at least 0.08 percent without regard to impairment. Every state has a driving offense based solely on the operation of a vehicle with a blood-alcohol level of 0.08 percent or more. See Haston, Marijuana Legalization in Indi- ana: Amending the Indiana Code to Protect Motorists and Pedes- trians, 51 Ind. L. Rev. 557, 563 (2018); Taylor and Oberman, Drunk Driving Defense, Preface (8th ed. 2019 Supp.) ("All states have now enacted per se statutes criminalizing those drivers with a blood-alcohol level of .08 percent or higher."). The universality of that offense may be attributed to a federal requirement that states proscribe that conduct as a condition for receiving fully funded highway improvement grants. See 23 U.S.C. § 163 (2016).

⦁ Convictions under K.S.A. 32-1131 for operating a vessel under the influence of alcohol or drugs. This may be thought of as a 246 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mejia boating DUI insofar as the degree of impairment for conviction is the same as that in K.S.A. 8-1567(a). The term "vessel" means "any watercraft designed to be propelled by machinery, oars, pad- dles or wind action upon a sail for navigation on the water"—a comprehensive definition leaving scant room for contesting what's covered (quite a lot) and what isn't (very little). K.S.A. 32- 1102(a). Jet skis are in; air mattresses are out. An assessment of an ostensibly comparable offense from another jurisdiction should not devolve into a fight over what's being piloted.

⦁ Convictions for involuntary manslaughter or for aggravated battery when the defendant operated a motor vehicle in violation of K.S.A. 8-1567(a) as the mechanism causing death or the requisite bodily harm. A comparable out-of-state conviction would require a driver to cause the death of or bodily harm to another person by operating a vehicle in an impaired condition, as defined in that state's statutes. The determination would typically pivot on and parallel that for the comparability of a violation under K.S.A. 8-1567(a) and the other state's impaired driving statute. As we have already explained, the Legislature intends comparability to be liberally construed to reach offenses that proscribe the operation of almost any kind of vehicle with some degree of impairment.

E. A Rejoinder to the Dissent

In closing out our discussion, we briefly respond to the dissent's contention we have come to an impermissible conclusion. The dissent seems to rest on three primary points. First, the dissent suggests State v. Gensler, 308 Kan. 674, 423 P.3d 488 (2018), overrules Reese and compels the application of Wetrich in determining the use of out-of-state convictions as predicate offenses under K.S.A. 8-1567. Neither is correct, especially in light of the amendment in K.S.A. 2019 Supp. 8-1567(j) designed to avoid just that result. The Gensler court addressed when a DUI conviction under a Kansas municipal ordinance could be treated as a predicate offense—requiring interpretation of different statutory language in K.S.A. 8-1567. As provided in K.S.A. 2017 Supp. 8-1567(i)(1), a VOL. 58 COURT OF APPEALS OF KANSAS 247

State v. Mejia municipal conviction counted if the ordinance "'prohibits the acts [K.S.A. 8-1567(a)] prohibits.'" The court found the phrase to be ambiguous and in keeping with the rule of lenity construed it to mean proscriptions in the ordinance could not be more expansive than those in K.S.A. 8-1567(a). If they were, then any conviction under the ordinance could not serve as a predicate offense in a prosecution under K.S.A. 8-1567. 308 Kan. at 681-82. In reaching that conclusion, the court analogized the issue of statutory construction to the one the United States Supreme Court dealt with in Descamps v. United States, 570 U.S. 254, 257-58, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013), in construing the Armed Career Crimi- nal Act. The court then offered an extended analysis of the elements of the Wichita DUI ordinance under which Gensler had been convicted and concluded the measure proscribed more conduct that K.S.A. 8-1567(a). The ordinance, therefore, did not come within the "prohibits the acts" standard in K.S.A. 2017 Supp. 8- 1567(i)(1), and Gensler's municipal conviction did not qualify as a predicate offense. Gensler, 308 Kan. at 683-85. The dissent also cites a flock of other cases that concluded a conviction under the Wichita DUI ordinance could not be treated as a predicate offense. But all of that is inapposite to the issue here. The language governing convictions for Kansas municipal ordinances did not refer to "comparable" offenses or "similar conduct" as the Legis- lature has now directed for identifying qualifying out-of-state convictions. The Gensler court noted that difference in language and the then-recent amendments to K.S.A. 8-1567(i) and (j), see L. 2018, ch. 106, § 13, but recognized they were inapplicable to the question of statutory construction in that case. 308 Kan. at 679. So nothing in the substantive ruling in Gensler or in the other cases the dissent cites conflicts with our treatment of Mejia's Mis- souri convictions. More to the dissent's point, however, the Gens- ler court did not mention Reese, let alone purport to distinguish or overrule it. See United States v. Rodriguez, 311 F.3d 435, 439 (1st Cir. 2002) ("Implied overrulings are disfavored in the law."). The court simply interpreted the statutory language of one part of K.S.A. 8-1567—an exercise that in no way called into question the division Reese drew between that statute and Chapter 21. The Gensler opinion mentions Wetrich only twice: first as an example 248 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mejia of a "sentencing classification question" decided on statutory rather than constitutional grounds; and then for the well-accepted proposition that courts avoid reaching constitutional issues if cases can be decided on other grounds. 308 Kan. at 678-79. The Gensler court never intimates, let alone holds, that Wetrich's the- same-as-or-narrower-than standard for determining the criminal histories of defendants convicted of Chapter 21 felonies should be reflexively applied to K.S.A. 8-1567 or, more particularly, to out- of-state DUI convictions. The dissent next seems to say that our conclusion invites impermissible judicial fact-finding, contrary to Apprendi, Dickey, and related case authority. We fail to see how that can be correct. As we have explained, the required comparison of an out-of-state conviction to K.S.A. 8-1567(a) turns solely on the statutory elements of the respective offenses. The facts underlying a given conviction are irrelevant to the determination and should not be considered. A statutory elements-to-elements comparison is purely a legal question. In short, the legislative method for determining comparable out-of-state convictions does not implicate a defendant's Sixth Amendment jury trial rights. We have acknowledged an entirely different constitutional due process concern—district courts might come to different legal conclusions about the comparability of a given state's DUI statute. But, as we have said, we see that concern as largely academic because the Legislature intends to treat any out-of-state conviction for operating some kind of vehicle while the operator is impaired to some degree as "similar conduct" and, thus, a predicate offense under K.S.A. 2019 Supp. 8-1567(i)(3). Finally, the dissent chides us for treating K.S.A. 2019 Supp. 8-1567(i) and (j) as ambiguous and looking at legislative history to resolve the ambiguity. In doing so, we have simply followed the Kansas Supreme Court's lead in construing the word "comparable" and in parsing the meaning of comparability, as we have already explained. But even if we were to confine our analysis to the statutory language of K.S.A. 8-1567, the result would be the same. Again, as we have said, the comparability of an out-of-state conviction as a predicate offense under K.S.A. 2019 Supp. 8- 1567(i)(3) is informed by the criteria in K.S.A. 2019 Supp. 8- VOL. 58 COURT OF APPEALS OF KANSAS 249

State v. Mejia

1567(j). Pertinent here, the predicate conviction need only be for "similar conduct" to the proscription in K.S.A. 2019 Supp. 8- 1567(a). The phrase naturally lends itself to both broader activity and narrower activity. Those statutory pronouncements, then, channel the identification of predicate offenses to the result we have otherwise reached. That is the most reasonable construction of the governing statutory language, with or without the obvious reinforcement found in the legislative history.

F. Conclusion

The State properly relied on three convictions Mejia had for driving under the influence in Missouri in violation of Mo. Rev. Stat. § 577.010 to charge him with a felony violation of K.S.A. 8- 1567, even though the Missouri statute proscribes a broader range of conduct. Mejia's argument for and the district court's reliance on Wetrich to discard those convictions are misplaced. The Wetrich decision addresses a sentencing concern endemic to Chapter 21 because of the sheer number of crimes defined there. The concern is not replicated under K.S.A. 2019 Supp. 8-1567, especially given the Legislature's clear intent to expansively define the out-of-state convictions that constitute predicate offenses for charging and sentencing recidivists like Mejia. We, therefore, find the district court erred in dismissing the felony DUI charge against Mejia. The district court should have recognized his Missouri convictions under Mo. Rev. Stat. § 577.010 for purposes of enhancing the charge from a misdemeanor to a felony.

We reverse and remand to the district court with directions to reinstate the felony DUI charge against Mejia and for further proceedings consistent with this opinion.

* * *

SCHROEDER, J., dissenting: I respectfully dissent. At the outset I acknowledge the nature and purpose of Kansas' DUI laws increasing punishment scheme for recidivist offenders. Even so, the majority's reasoning and result rest on two faulty assumptions. First, the Wetrich line of cases is inapplicable to Kansas' DUI law, 250 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mejia see State v. Wetrich, 307 Kan. 552, 412 P.3d 984 (2018), and, second, the meaning of the word "comparable" under K.S.A. 2019 Supp. 8-1567(i)(3) is ambiguous on its face. In finding Wetrich is inapplicable to these facts, the majority ignores our Supreme Court's recent decision in State v. Gensler, 308 Kan. 674, 683, 423 P.3d 488 (2018). And the majority unnecessarily invokes legislative intent by finding the word "comparable" is ambiguous. The majority's analysis should have started and ended with the text of Kansas' DUI law. In Gensler, the district court used Gensler's previous DUI convictions under a Wichita municipal ordinance to enhance his state case to a felony. The applicable subsections of K.S.A. 2017 Supp. 8-1567 for determining whether Gensler's prior municipal convictions were comparable state offenses provided, in pertinent part:

"'(i) For the purpose of determining whether a conviction is a first, second, third, fourth or subsequent conviction in sentencing under this section: (1) Convictions for a violation of this section, or a violation of an ordinance of any city or resolution of any county which prohibits the acts that this section prohibits, or entering into a diversion agreement in lieu of further criminal proceedings on a complaint alleging any such violations, shall be taken into account, but only convictions or diversions occurring on or after July 1, 2001. . . . . (3) "conviction" includes: . . . (B) conviction of a violation of an ordinance of a city in this state, a resolution of a county in this state or any law of another state which would constitute a crime described in subsection (i)(1) or (i)(2).'" Gensler, 308 Kan. at 679.

The Gensler court then reviewed with approval the categorical approach and modified categorical approach as applied to the revised Kansas Sentencing Guidelines Act, K.S.A. 2019 Supp. 21- 6801 et seq., in State v. Dickey, 301 Kan. 1018, 1039, 350 P.3d 1054 (2015) (Dickey I), for the purpose of determining whether a prior municipal DUI conviction counted as a prior DUI conviction under K.S.A. 8-1567. Gensler, 308 Kan. at 681-83; see Descamps v. United States, 570 U.S. 254, 261-64, 269, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013) (developing categorical and modified categorical approach); State v. Schrader, 308 Kan. 708, 712, 423 P.3d 523 (2018) (noting Gensler approved of categorical and modified categorical approach in DUI context). VOL. 58 COURT OF APPEALS OF KANSAS 251

State v. Mejia

The Gensler court interpreted K.S.A. 2017 Supp. 8-1567(i)(1)'s language—"which prohibits the acts that this section prohibits"—to limit prior municipal DUI convictions usable as sentencing enhancements to those with elements the same as, or narrower than, K.S.A. 2017 Supp. 8-1567. 308 Kan. at 680-81. Applying the categorical approach, Gensler found the Wichita DUI ordinance's definition of "vehicle" was an indivisible element of the crime and, because the definition criminalized a broader range of conduct than K.S.A. 2017 Supp. 8-1567, it could not be used to enhance Gensler's state case to a felony. 308 Kan. at 683-85. The Gensler court noted: "To determine the precise nature of the 'vehicle' Gensler was operating would require a sentencing court to engage in its own fact-finding, which is impermissible." 308 Kan. at 685; see Descamps, 570 U.S. at 269 (sentence en- hancement under Armed Career Criminal Act would "raise serious Sixth Amendment concerns if it went beyond merely identifying a prior conviction"). The language under K.S.A. 2017 Supp. 8-1567(i)(1) interpreted by the Gensler court remains the same under the current statute. See K.S.A. 2019 Supp. 8-1567(i)(1). But the Legislature has amended K.S.A. 2019 Supp. 8-1567(i)(3)(B) to provide: "'conviction' includes: . . . conviction of a violation of . . . any law of another jurisdiction that would constitute an offense that is comparable to the offense described in subsection (i)(1) or (i)(2)." (Emphasis added.) Under K.S.A. 2019 Supp. 8-1567(j)(1)-(3), the Legislature has also added three criteria for courts to apply when determining whether another jurisdiction's law is comparable. Despite these changes to Kansas' DUI law, the Gensler court's outright approval of the Wetrich line of cases in the comparability analysis for DUI offenses must be followed. The Kansas Supreme Court has consistently followed Gensler, and our court has done the same. See, e.g., Schrader, 308 Kan. at 708; State v. Lamone, 308 Kan. 1101, 1103- 04, 427 P.3d 47 (2018); State v. Ramos, No. 118,080, 2018 WL 4263371, at *2 (Kan. App. 2018) (unpublished opinion). Prior to Gens- ler other panels of this court followed the Wetrich line of cases while applying the previous version of K.S.A. 2016 Supp. 8-1567. See State v. Navarro, No. 117,563, 2018 WL 1545604, at *3 (Kan. App. 2018) (unpublished opinion) (finding we are duty bound to follow Wetrich and its companion cases); State v. Chapman, No. 117,063, 2018 WL 252 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mejia

671908, at *1 (Kan. App. 2018) (finding we are bound to follow Ap- prendi and its line of cases). Our court is bound by Kansas Supreme Court precedent absent some indication the court is departing from its position. State v. Rodriguez, 305 Kan. 1139, 1144, 390 P.3d 903 (2017). In light of Gensler, the majority's reliance on State v. Reese, 300 Kan. 650, 654, 333 P.3d 149 (2014), on the narrow scope of targeted behavior in DUI-type offenses, and on the enhanced penalties for recidivists under K.S.A. 2019 Supp. 8-1567(b)(1)(A)-(E) for its position that the Wetrich line of cases do not apply to Kansas' DUI law is unpersuasive. See 58 Kan. App. 2d at 232-35, 243-44. The Gensler court applied Wetrich's statutory framework despite these considerations, and I am bound to do the same. K.S.A. 2019 Supp. 8-1567(j)(1) and (2) instruct courts to consider the out-of-jurisdiction offense's name and elements. And under K.S.A. 2019 Supp. 8-1567(j)(3), courts must also consider "whether the out- of-jurisdiction offense prohibits similar conduct to . . . the closest approximate Kansas offense." The majority reasons the criteria under subsections (j)(2) and (3) must be considered together and, therefore, "the elements need only be 'similar' to the elements of DUI in K.S.A. 2019 Supp. 8-1567(a) or the other listed offenses." 58 Kan. App. 2d at 236-37. The majority's interpretation, however, invites impermissible judicial fact-finding in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), by giving courts broad discretion to determine whether a person committed the out-of-jurisdiction offense in a manner "similar enough" to K.S.A. 2019 Supp. 8- 1567. "Similar enough" is not the same as the "identical to or narrower than" elements-based approach. See Wetrich, 307 Kan. at 562. Given our duty to apply statutes in a constitutional manner and under existing caselaw, subsections (j)(2) and (3) of K.S.A. 2019 Supp. 8-1567 should be interpreted under the identical to or narrower than elements-based approach. See Blue Cross & Blue Shield of Kansas, Inc. v. Praeger, 276 Kan. 232, 276-77, 75 P.3d 226 (2003) (courts have duty to construe statutes in constitutional manner if possible). Nothing in the plain language of K.S.A. 2019 Supp. 8-1567(j)(2)- (3) prevents a court from following the analyses in Gensler and Wetrich. Although subsection (j)(2) requires courts to look at the elements of the prior conviction, it does not direct courts to look at the VOL. 58 COURT OF APPEALS OF KANSAS 253

State v. Mejia elements in any particular manner. Subsection (j)(3) directs courts to consider whether the out-of-jurisdiction offense prohibits similar conduct to K.S.A. 2019 Supp. 8-1567. However, it does not provide any parameters for courts to gauge what "similar conduct" is prohibited. The majority has defined "'similar'" as "'[r]elated in appearance or nature; alike though not identical'" to further define "'comparable.'" 58 Kan. App. 2d at 237. I see nothing in the definition of "similar" that provides something "broader" is comparable. See American Heritage College Dictionary 1292 (4th ed. 2004). Rather, something "narrower" could be "alike though not identical" to K.S.A. 2019 Supp. 8-1567. And something "identical to" K.S.A. 2019 Supp. 8-1567 would be "[r]elated in appearance or nature." Thus, a district court can determine whether similar conduct is prohibited by using only the elements of the prior conviction to determine whether the prohibited conduct is identical to or narrower than K.S.A. 2019 Supp. 8-1567. The majority openly acknowledges the elements of Missouri's DWI offense are broader than Kansas' DUI offense. In my view, the identical to or narrower than approach must be followed to avoid running afoul of Apprendi and its progeny. The district court's reliance on Wetrich in its written order reflects this approach. It concluded the elements of the Missouri DWI offenses were not the same as, or narrower than, the elements of K.S.A. 2019 Supp. 8-1567; thus, Mejia's convictions under the Missouri statute could not be used to enhance his DUI charge to a felony. The district court's interpretation of K.S.A. 2019 Supp. 8-1567(j) reconciled the criteria under subsections (j)(1)-(3) as a whole, consistent with their plain meaning. Although the district court resolved the classification of Mejia's prior Missouri DWI convictions as matter of statutory interpretation, it recognized the "constitutional principles announced in Ap- prendi and its progeny . . . apply." See Wetrich, 307 Kan. at 558-59 (resolving scoring of out-of-state burglary conviction as matter of statutory interpretation); State v. Dickey, 305 Kan. 217, 221, 380 P.3d 230 (2016) (Dickey II) (classification of prior crimes has "thick overlay of constitutional law"); see also State v. Coleman, 311 Kan. 305, Syl. ¶ 2, 460 P.3d 368, 375 (2020) (finding pre-KSGA crimes comparable to current KSGA offenses where an earlier crime's elements are identical to, or narrower than, the applicable current offense). Therefore, under Gensler, the district court correctly relied on Wetrich's statutory framework and Apprendi's constitutional considerations when it found 254 COURT OF APPEALS OF KANSAS VOL. 58

State v. Mejia

Mejia's prior Missouri DWI convictions could not be used to enhance his DUI charge to a felony. The majority avoids Wetrich's reach by finding the word "comparable" in K.S.A. 2019 Supp. 8-1567(i)(3) is ambiguous and invokes legislative intent. 58 Kan. App. 2d at 237-38. The majority incorrectly reasons the word "comparable" is ambiguous on its face because Wetrich found a similar phrase—"comparable offenses"—ambiguous as used in K.S.A. 2017 Supp. 21-6811(e). 58 Kan. App. 2d at 237-38; see 307 Kan. at 559. But unlike the statute in Wetrich, K.S.A. 2019 Supp. 8-1567(j) sets out specific statutory criteria to determine whether a prior conviction is comparable. There is no ambiguity in the criteria for determining whether an offense is comparable under K.S.A. 2019 Supp. 8-1567(i)(3). Rather, the plain language of subsection (j)(3) potentially invites courts to engage in fact-finding beyond the existence of a person's prior conviction. Still, courts can avoid this problem by doing as the district court did here. The Legislature could have added language within K.S.A. 2019 Supp. 8-1567's text requiring courts to include an offender's prior conviction under Mo. Rev. Stat. § 577.010 in his or her criminal history. In my reading of Apprendi and the line of cases that follow, nothing would prevent the Legislature from explicitly enumerating the municipal ordinances and/or out-of-state statutes it wants counted as prior DUI convictions. The Legislature proved itself quite capable of spelling these out in the preamble to the session law. But it did not include them in the text of the statute itself. Consequently, the Legisla- ture's stated intent in the preamble to the session law to include out-of- jurisdiction offenses as comparable offenses "regardless of whether the elements are identical to or narrower than the corresponding Kansas offense" is irrelevant. See L. 2018, ch. 106, Preamble. The text of K.S.A. 2019 Supp. 8-1567 controls over the session law. "We should not seek ambiguity where none exists merely for the purpose of invoking the rule of liberal construction." United States Fid. & Guar. Co. v. Western Cas. & Surety Co., 195 Kan. 603, 605, 408 P.2d 596 (1965). For these reasons, I would find Mejia's prior Missouri DWI convictions cannot be used to enhance his charge to a felony DUI and the district court's dismissal of the charge at the preliminary hearing was proper. VOL. 58 COURT OF APPEALS OF KANSAS 255

State v. Contreras

___

No. 119,584

STATE OF KANSAS, Appellee, v. JOSE ARMANDO CONTRERAS, Appellant.

___

SYLLABUS BY THE COURT

1. EVIDENCE—Contemporaneous Objection Rule Not Applicable to Wit- ness' Assertion of Fifth Amendment privilege. K.S.A. 60-404, which requires a contemporaneous objection to the admission of evidence, does not apply to the question of law whether a witness has a right to assert the Fifth Amendment privilege against self-incrimination.

2. SAME—Doctrine of Acquiescence—Limited Application. A district court's Fifth Amendment ruling is not a judgment to which the doctrine of acquiescence applies. That doctrine has limited application in criminal cases.

3. TRIAL—Defendant's Right to Fair Trial—Right to Call Witnesses Not Absolute. A defendant must be permitted to present a complete defense in a meaningful manner, and exclusion of evidence which is an integral part of a defendant's theory violates the right to a fair trial. A defendant's right to call and examine witnesses, however, is not absolute and on occasion will be overridden by other legitimate interests in the criminal trial process.

4. CONSTITUTIONAL LAW—Fifth Amendment Privilege against Self-incrimination. The Fifth Amendment to the United States Constitution operates only where a witness is asked to incriminate himself or herself; that is, to give testimony which could possibly expose the witness to a criminal charge.

5. SAME—Fifth Amendment Privilege against Self-incrimination—Limita- tions. If a sentence has been imposed for a crime, or if the court has dismissed a count with prejudice, the Fifth Amendment privilege against self- incrimination ends and the witness may be compelled to testify to the facts underlying the conviction and the dismissed charge.

6. CRIMINAL LAW—Dismissal with Prejudice—Bars Later Lawsuit on same Claims. A dismissal with prejudice means that the State may not seek to reinstate the action or bring any claims before any court against the same defendant arising out of the same set of facts as the dismissed count.

256 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras

7. CONSTITUTIONAL LAW—Right to Compel Witness to Testify—Appel- late Review. The constitutional right to compel a witness to testify is subject to a harmless error analysis.

Appeal from Scott District Court; WENDEL W. WURST, judge. Opinion filed May 29, 2020. Reversed and remanded.

Kasper Shirer, of Kansas Appellate Defender Office, for appellant.

Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

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

GARDNER, J.: A jury convicted Jose Armando Contreras of four off-grid Jessica's Law offenses and an additional felony—two counts of rape, two counts of aggravated criminal sodomy, and aggravated intimidation of a victim. Contreras appeals his sentence and conviction, arguing the district court denied him a fair trial by allowing a witness to invoke the Fifth Amendment privilege against self-incrimination, denying his continuance request, denying his motion for a sentencing departure, and imposing lifetime postrelease supervision. Contreras also argues that the cumulative effect of the errors requires reversal of his convictions. Agreeing that the district court erred by permitting a witness to invoke the Fifth Amendment, we reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

In March 2012, Contreras and the mother of the victim, K.B. (Mother) began dating. Mother would sometimes take her three children—E.B., G.B., and K.B.—to see Contreras. When Mother spent the night at Contreras' apartment, as she sometimes did, she would take her children and they would all sleep in the same room, with the three children sleeping on the floor. At times, Mother would leave her children with Contreras and his roommate while she ran errands. Mother considered his roommate her best friend and would allow him to watch her children two to three times a week. A little over a year into the relationship, Contreras told Mother that something inappropriate had happened with K.B., then eight years old. Contreras told Mother that K.B. had tried to initiate oral VOL. 58 COURT OF APPEALS OF KANSAS 257

State v. Contreras sex with him but he stopped her. Contreras asked K.B. where she had learned that behavior and K.B. replied "daddy says that's what you do for nice things that people do to you." Upon hearing this, Mother made an appointment for the next day with Area Mental Health. She also posted a message on a Facebook group page saying that K.B. had confided in Contreras and had told him about being abused at her father's house over Christmas break in Decem- ber 2012. The post said that Contreras had waited three days after learning this information before telling Mother. Soon after Mother posted this information on Facebook, a member of the group called police. After police received a report that K.B. may have been sexually assaulted, Officer Charles Kuffler and Sergeant David New- land went to Mother's home to talk about the accusation. When they arrived, Mother was talking to Contreras over a live video chat on her computer. Mother refused to speak to the police and kept Contreras on the computer the entire time the officers were there. After stating their concerns about the seriousness of the accusations, officers asked Mother to bring K.B. to the Western Kansas Child Advocacy Center for a forensic interview. But Mother remained argumentative and maintained that K.B. may have made up the allegations after seeing something similar in a movie. Eventually, however, Mother agreed to take K.B. to a forensic interviewer.

Robbins' interview

Kelly Robbins interviewed K.B. At the beginning of the interview, Robbins described K.B. as "[v]ery bubbly, very talkative, [and] very cooperative[.]" But as she began talking about the abuse, K.B. became less talkative, speaking only to answer questions. She would simply shrug her shoulders to answer, say she did not know, or give one-word answers. In recounting the details of Contreras' assault, K.B. told Robbins that he "had touched her inside her wee-wee . . . he pulled her pants down, went in the front and down her panties, inside her panties, and it was inside her wee-wee with his finger." She also said that "before that happened, he had made her put her mouth on his penis, and he had 258 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras pulled his shorts down to make her do that." K.B. also told Rob- bins that her father had sexually abused her while she was staying with him over Christmas break in December 2012.

Fyler's interview and K.B.'s recantation

After K.B.'s interview with Robbins was complete, she did an extended forensic interview with David Fyler. Fyler interviewed K.B. in three sessions. During the second session, K.B. told Fyler that both her father and Contreras had sexually abused her. Ac- cording to K.B., Contreras' abuse occurred in his apartment. In the third session, K.B. recanted her accusations against Contreras. During that interview, K.B. "teared up and said she needed to tell [Fyler] something." Then she told him that what she said about Contreras was not true. When Fyler asked why she wanted to take her story back, she explained that her mother had said that Contreras would lose his son if she did not take back her accusations. Fyler then asked K.B. "would it have been true if [K.B.'s] mom had not talked to her," and K.B. nodded her head yes. So Fyler decided to speak with Mother about the recantation. After K.B. recanted, Fyler and Robbins spoke with Mother to see if K.B. had been pressured, to make sure K.B. was safe in the home with Mother, and to make sure K.B. was safe from Contre- ras. Mother told Fyler and Robbins that she did not believe K.B.'s accusations against Contreras. She denied ever having pressured K.B. to recant or change her allegations against Contreras. She also denied having told K.B. that Contreras would lose his son because of K.B.'s allegations. Instead, Mother maintained that K.B. told her she had lied about what happened with Contreras but had told the truth about what had happened with her father. So Mother had told K.B. to tell Fyler "the truth."

Contreras' interview and arrest

After K.B.'s initial interview with Robbins, Special Agent Bethanie Popejoy of the Kansas Bureau of Investigation became involved in the case. Popejoy interviewed Contreras at the police station. This interview lasted for around three hours, including two breaks. After the first break, Contreras was told that K.B. had accused him of sexual assault. Contreras reacted as if he were hurt VOL. 58 COURT OF APPEALS OF KANSAS 259

State v. Contreras that K.B. would implicate him. But according to Popejoy, he admitted that when he went into his bedroom to help K.B. get a pen, she pulled his shorts down and put her mouth on his penis. Ac- cording to Popejoy, Contreras said her mouth had been there for only two seconds before Contreras made her stop and chastised her. K.B. told Contreras that this is what her father liked to do. After the second break in the interview, Popejoy told Contreras that K.B. had said he had touched her vagina. Eventually, Contre- ras said that after drinking excessively and lying on the floor of his bedroom between K.B. and one of the boys he may have mistaken K.B. for Mother and put his hands on K.B.'s vagina. Contreras was not arrested until four years after the initial investigation was done. Popejoy suggested that some of that delay was because of K.B.'s inability to testify against Contreras when she was eight years old, as some in her family and in the Depart- ment for Children and Families did not think that she could testify.

K.B.'s therapy statements to Athy

The State of Kansas took custody of K.B. in March 2014. K.B. was placed in foster care for around two years. After that, K.B. went to Kearney, Nebraska, to live with her Grandmother and Mother later moved to Kearney. After K.B. went to live with her Grandmother, she began therapy sessions with Susan Athy. K.B. told Athy about Contreras' sexual abuse. In one session, K.B. wrote a letter to Mother because K.B. wanted her to believe her accusations against Contreras, and because she was angry that her mother continued to date Contreras even knowing of her allegations. Athy stated that K.B. was very "specific about the incidents that happened with her . . . but she couldn't put them in order." Yet K.B. was clear when she discussed the individual abuse committed by her father and by Con- treras. And K.B. told Athy that she feared Contreras' home because of the sexual abuse that had occurred there. K.B. was wor- ried her brothers could suffer some form of abuse because Mother was still with Contreras. K.B. never told her therapist that she had fabricated any accusations against Contreras. At various sessions, K.B. detailed the different occasions on which Contreras had sexually abused her. She stated that Contre- ras made her perform oral sex and had inserted his penis inside 260 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras her. K.B. then put the incidents in order, dating the sexual abuse by her father and by Contreras on a timeline. During a 2016 session with Athy, K.B. stated that Contreras had put his penis inside her in the apartment across from Contreras' apartment. She said that Mother, her brothers, and other adults were in the living room of that apartment during the assault. K.B. also drew a picture of the apartment she was assaulted in. She said that two other incidents occurred in Contreras' apartment. She told them that after seeing a television show about victims of sexual assault she had told Mother about the abuse, but Mother had not believed her.

K.B.'s trial testimony

In June 2017, the State charged Contreras with two counts of rape, two counts of aggravated criminal sodomy, three counts of aggravated indecent liberties with a child, and one count of aggravated intimidation of a victim. The State amended the charge to two counts of rape, two counts of criminal sodomy, and one count of aggravated intimidation of a victim. When K.B. testified at trial she was 13 years old. She testified that Contreras had digitally penetrated her vagina, had made her touch his penis with her hand and mouth, and had raped and sodomized her. K.B.'s trial testimony about a rape was somewhat confusing. At first she testified that it occurred in another apartment but then stated that the act in the other apartment involved anal penetration, not vaginal. She then testified that the vaginal penetration had happened in Contre- ras' apartment when Mother, her brothers, and Contreras' son were playing outside. K.B. also testified to general details about the abuse. She did not know what Contreras' penis looked like because she had never seen it. K.B. did not remember that Contreras' apartment had two bedrooms or that he had a roommate. She testified that Contreras had told her he would hurt her brothers if she told anyone about the abuse. She did not think she had told Con- treras about the abuse by her father. She remembered telling Fyler that she had made up the accusations against Contreras, but she did that because she feared Fyler because he was a man. She never talked with her mother about what happened with Contreras because she was scared.

VOL. 58 COURT OF APPEALS OF KANSAS 261

State v. Contreras

K.B.'s father invokes the Fifth Amendment

Contreras called K.B.'s father (Father) to testify. Before Father was called, the district court permitted the parties to ask Father about an incident between him and K.B. in December 2012, over Christmas break. Father had signed an affidavit saying that during that time, apparently when he still had a relationship with Mother, he had awakened to find K.B. performing unsolicited oral sex on him. In response, the State notified the court of its intent to impeach Father with evidence of his prior convictions for sexual abuse against K.B. As a result, Father told the court that he wanted to invoke his Fifth Amendment privilege against self-incrimination and did not want to testify. Contreras' attorney argued that Father could not invoke the Fifth Amendment because he had already been convicted of the crime he would be questioned about. The State told the district court that it did not have a copy of Father's plea agreement but it did have a copy of his journal entry of judgment for his prior conviction involving K.B. The district court then asked Father "[w]as part of that plea bargain agreement that you would not have any criminal liability for anything else involving any crimes that you perpetrated with regard to [K.B.]?" Fa- ther answered affirmatively, stating he understood that any future prosecution would be barred as double jeopardy. The district court then reviewed Father's journal entry of judgment. It showed that Father had been convicted of criminal sodomy for acts between April 29, 2011, and March 5, 2012. Because that conviction did not involve any crimes in December 2012, the district court decided not to compel Father's testimony about the incident with K.B. in De- cember 2012. The district court thus found that Father could still be prosecuted for acts with K.B. that had occurred in December 2012— the date Contreras wanted Father to testify about. The district court therefore allowed Father to invoke his Fifth Amendment privilege against self-incrimination and excused him from the trial.

Contreras' trial testimony

After the district court excused Father, Contreras testified. He told the jury that one afternoon, Mother left his apartment to grab clothes from her house for her kids, so they could all spend the night at his apartment. That task would have taken her about five minutes. While Mother was gone, her sons were playing video 262 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras games and K.B. was bored. Contreras asked K.B. if she wanted drawing material and she said she did. So he got off the couch and went into his room to grab a pen and paper. K.B. apparently followed him. As they were leaving the room, K.B. "stopped and went for [Contreras'] shorts and attempted to, and then [Contreras] stopped her." He denied that K.B.'s mouth ever touched his penis. From the time he got off the couch to the time K.B. pulled his shorts down, 10 seconds passed. He took quick action to get K.B. away from him, then yelled at K.B., who apologized for her actions. Contreras asked her "where she would get the idea to do something like that." K.B. responded "[t]hat her dad had . . . said to her that when people do good things for you, you're supposed to reward them." A few minutes later, Contreras' roommate arrived, as Mother did shortly after. That evening, Contreras told his roommate about the incident, but he did not tell Mother about it until three days later. He waited because he was shocked by the revelation that K.B.'s father was abusing her and he "couldn't even imagine what [Mother] was going to go through." Contreras had never taken the children to another apartment, and he did not have a friend living in an apartment across from him when he was dating Mother. When confronted with his statements to police on direct examination, Contreras clarified what he thought he had said to them. Contreras maintained that K.B.'s mouth had never touched his penis, and that at the police station he had not meant that her mouth was on him for two seconds. Instead, he meant that K.B.'s attempt to do something sexual to him had taken two seconds. He never admitted to putting his hand on K.B. or mistaking her for Mother but he had merely agreed that was a possible scenario in response to Popejoy's insinuating that inadvertent touching had occurred. The State's video exhibit of the interview shows, however, that Contreras did admit to the police that K.B.'s mouth went onto his penis, although he denied touching her. But the video supports Contreras' assertion that he simply posed the possibility that he got drunk, laid on the floor, and then mistook K.B. for Mother and put his hand on her vagina. The jury saw the video of Contreras' VOL. 58 COURT OF APPEALS OF KANSAS 263

State v. Contreras interview with Popejoy, but because the audio was not working, the jury was given a transcript of the recording. The jury was not allowed to take the transcript into deliberations.

Mother's trial testimony

Mother also testified at trial. She did not believe K.B.'s allegations against Contreras. But she had not witnessed the event and did not say that she believed Contreras' account of what had happened. She recounted what Contreras had told her—that K.B. had pulled down his gym shorts and tried to put his penis in her mouth, but Contreras immediately stopped her. The jury found Contreras guilty on all counts. At sentencing, the district court denied Contreras' departure motion and imposed a controlling life sentence without the possibility of parole for 25 years, with all other counts running concurrently. The district court also imposed a term of lifetime postrelease supervision. Contreras timely appeals his conviction and sentence.

DID THE DISTRICT COURT ERR IN ALLOWING A WITNESS TO INVOKE HIS FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION?

We first address Contreras' argument that the district court erred by not compelling Father's testimony at trial. The State asserts that this Fifth Amendment issue is not preserved for appellate review and that we should apply the doctrines of acquiescence or judicial estoppel to deny Contreras' claim. So we first consider whether any of these procedural barriers apply.

Preservation

The State argues at some length that this court is precluded from reviewing the merits of Contreras' claim because Contreras violated the contemporaneous objection rule in K.S.A. 60-404. Under that rule, "[a] party must make a timely and specific objection to the admission of evidence at trial in order to preserve the issue for appeal." State v. Gaona, 293 Kan. 930, 956, 270 P.3d 1165 (2012). The State argues that Contreras failed to object to the district court's decision to allow Father to invoke his Fifth Amendment privilege. 264 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras

Contreras counters that deciding whether a witness may take the Fifth is not purely an evidentiary issue, and the district court did not admit evidence at trial, so the general rule requiring a contemporaneous objection does not apply. We agree. Deciding whether a witness may properly invoke the Fifth Amendment and thus not testify is different in kind than deciding whether to admit a specific question or line of questioning from a witness. K.S.A. 60-404 clearly covers the latter. But K.S.A. 60-404 does not apply here, where the issue is not solely an evidentiary one that may rest within the district court's discretion, but a question of law whether a witness has a right to assert the Fifth Amendment. See State v. Hughes, 286 Kan. 1010, 1029, 191 P.3d 268 (2008) (When we review an asserted violation of a Fifth Amendment privilege against self-incrimination, we review the district court's factual findings using a substantial competent evidence standard but review the ultimate legal conclusion "as a question of law using an unlimited standard of review."). And, as a practical matter, because Father did not testify, Contreras had no reason and no opportunity to object in the jury's presence when he would have ex- amined Father. Even if K.S.A. 60-404 would generally apply here, the purpose of the rule was met by the parties' arguments, which squarely presented the issue to the district court for its resolution. The purpose of the rule is to give "the trial court the opportunity to conduct the trial without using the tainted evidence, and thus avoid possible reversal and a new trial." State v. Moore, 218 Kan. 450, 455, 543 P.2d 923 (1975). The rule is a "prudential rather than jurisdictional obstacle to appellate review." Gaona, 293 Kan. at 956. So, on occasion, our appellate courts have refused to strictly apply the contemporaneous objection rule when the underlying purpose for the rule has been satisfied. See, e.g., State v. Hart, 297 Kan. 494, 510-11, 301 P.3d 1279 (2013); State v. Spagnola, 295 Kan. 1098, 1103, 289 P.3d 68 (2012); State v. Breedlove, 295 Kan. 481, 490-91, 286 P.3d 1123 (2012). That is the case here. True, Contreras never explicitly stated that he "objected" to Father's invocation of the Fifth Amendment. Still, the issue was timely raised just before Father's anticipated testimony—Contre- VOL. 58 COURT OF APPEALS OF KANSAS 265

State v. Contreras ras proffered what Father's expected testimony was, both sides argued the issue, and the district court decided it. Contreras' arguments were enough to advise the trial court of the evidence at issue and to assure an adequate record for appellate review. See State v. Gonzalez, 311 Kan. 281, 299-300, 460 P.3d 348 (2020) (applying K.S.A. 60-405 to district court's refusal to compel witness' testimony, finding insufficient proffer of excluded evidence precludes appellate review). Contreras' argument just before Father's expected testimony was sufficient to preserve his claim of error on appeal. The State next argues that Contreras also had to object when the district court excused Father from the trial. But because it provides no authority for that assertion, we consider this argument abandoned. See State v. Sprague, 303 Kan. 418, 425, 362 P.3d 828 (2015) ("When a litigant fails to adequately brief an issue it is deemed abandoned."). Nor does the State offer a persuasive reason why such an objection would be required right after the district court resolved the disputed Fifth Amendment issue that necessi- tated Father's excusal. Contreras had fully stated the basis for his disagreement with the district court's decision not to compel Fa- ther's testimony—nothing different could be stated about the district court's excusing Father from the proceedings. See Anderson v. Dugger, 130 Kan. 153, 156, 285 P. 546 (1930) (finding "[t]he law does not require the performance of a futile or useless act").

The Doctrine of Acquiescence

The State briefly argues that Contreras acquiesced in the district court's decision by two acts: failing to object when the district court excused Father from the courtroom; and making certain statements at sentencing. We are unpersuaded. Because it involves jurisdiction, whether a party acquiesced to a judgment is a question of law subject to unlimited review. Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006). Acquiescence to a judgment—which bars appellate review— occurs when a party voluntarily complies with a judgment by assuming the burdens or accepting the benefits of the judgment contested on appeal. A party who voluntarily complies with a judgment should not be permitted to pursue an inconsistent position by 266 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras appealing from that judgment. Alliance Mortgage Co., 281 Kan. at 1271. So, for example, a litigant who voluntarily pays a fine may be found to have acquiesced in the judgment by so doing. See Huet-Vaughn v. Kansas State Bd. of Healing Arts, 267 Kan. 144, 978 P.2d 896 (1999). The State does not provide any authority to show that the doctrine of acquiescence applies in a criminal case to a district court's Fifth Amendment ruling. That ruling is not a "judgment," as that term is used in this doctrine, and the doctrine of acquiescence has "limited application in criminal cases." State v. Kelley, 42 Kan. App. 2d 782, 793, 217 P.3d 56 (2009) (finding that the district court's ruling on an evidentiary issue at a criminal trial is not a judgment to which the doctrine of acquiescence applies). And, as we found above, Contreras could have accomplished nothing by objecting to Father's release right after the district court determined that Father could not testify about the only questions Con- treras wanted to ask him. The State suggests that Contreras is taking a position on appeal contrary to the one he pursued at trial. Here, the State alleges that at sentencing defense counsel declined to produce Father's recorded interview, saying Father "didn't get to testify much on behalf of Mr. Contreras, and he took the Fifth, so I'm—I'm un- comfortable giving over a disk where he might potentially be sub- jecting himself to criminal liability for a very serious crime without some order from the Court." The court declined to compel production of the interview. Because Contreras asserts on appeal that Father's testimony would not have subjected himself to possible criminal liability, the State asserts he is taking inconsistent positions. But a fair reading of the record as a whole shows that Contre- ras' position on appeal is the same as he argued below—he asked the district court to compel Father to testify because his Fifth Amendment privilege against self-incrimination did not apply. He also asked Father whether he understood that his plea barred further prosecution for any sexual contact in December 2012. Con- treras makes the same argument on appeal. The statements at sentencing by Contreras' counsel reflect compliance with the then re- VOL. 58 COURT OF APPEALS OF KANSAS 267

State v. Contreras cent district court ruling that Father could invoke his Fifth Amend- ment privilege, but they do not reflect Contreras' advocacy position either at trial or on appeal. The doctrine of acquiescence does not apply.

The Doctrine of Judicial Estoppel

The State also asks us to apply the doctrine of judicial estoppel. As best we understand this argument, the State argues again that Contreras is changing his position on appeal and that the district court would have taken different measures to address the issue if Contreras' argument on appeal had been presented to it. This court has detailed the basic legal principles and purposes of applying judicial estoppel:

"The doctrine of judicial estoppel . . . advances notions of fair play by pre- cluding a party from inducing judicial action by taking one legal position and then taking a contrary position later to achieve further advantage over the same adverse party. The United States Supreme Court recognized that the doctrine '"generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase."' A court may apply judicial estoppel in its discretion as necessary to preserve '"the essential integrity of the judicial process."' [Citations omitted.]" State v. Hargrove, 48 Kan. App. 2d 522, 548-49, 293 P.3d 787 (2013).

The State shows no authority that counsels us to apply this doctrine here. And as we found above, Contreras has not changed his position on appeal from his position at trial. Nothing in the record suggests that Contreras' attorney tactically withheld information or took a contrary position at the district court level to try to prevail on this issue on appeal. And Contreras did not prevail in the district court. Under these circumstances, Contreras is not barred by the doctrine of judicial estoppel. Thus, we find no procedural barriers to our considering the merits of the Fifth Amend- ment issue.

Standard of Review

Contreras argues that the district court's erroneous decision that Father could invoke the Fifth Amendment privilege against self-incrimination violated his constitutional right to present a defense. The State seems to concede that the district court erred in 268 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras its Fifth Amendment ruling, as it argues on appeal only the procedural bars we have rejected above, and that the error was harmless, an issue we address below. In considering an asserted violation of a Fifth Amendment privilege against self-incrimination, we review the district court's factual findings using a substantial competent evidence standard but we review the ultimate legal conclusion as a question of law using an unlimited standard of review. Hughes, 286 Kan. at 1029.

Analysis

Exclusion of evidence which is an integral part of a defendant's theory violates the right to a fair trial.

"A defendant must be permitted to present a complete defense in a meaningful manner, and exclusion of evidence which is an integral part of a defendant's theory violates the right to a fair trial. However, a defendant's right to call and examine witnesses is not absolute and on occasion will be overridden by 'other legitimate interests in the criminal trial process.' [Citation omitted.]" State v. Green, 254 Kan. 669, 675, 867 P.2d 366 (1994).

Generally, no person has a privilege to refuse to be a witness.

"(a) [E]very person is qualified to be a witness, and (b) no person has a privilege to refuse to be a witness, and (c) no person is disqualified to testify to any matter, and (d) no person has a privilege to refuse to disclose any matter or to produce any object or writing, and (e) no person has a privilege that another shall not be a witness or shall not disclose any matter or shall not produce any object or writing, and (f) all relevant evidence is admissible." K.S.A. 60-407.

But the general rules in this statute must yield to the specific guarantee of the privilege against self-incrimination in the Fifth Amendment to the United States Constitution, § 10 of the Kansas Constitution, and K.S.A. 60-425. See In re Investigation into Homicide of T.H., 23 Kan. App. 2d 471, 474, 932 P.2d 1023 (1997). The Fifth Amendment provides that "[n]o person . . . shall be compelled in any criminal case to be a witness against himself." Similarly, K.S.A. 60-425 provides that "every natural person has a privilege, which he or she may claim, to refuse to disclose in an action . . . any matter that will incriminate such person." This pro- hibition not only permits a person to refuse to testify against himself at a criminal trial in which he is a defendant, but also "privileges him not to answer official questions put to him in any other VOL. 58 COURT OF APPEALS OF KANSAS 269

State v. Contreras proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." Lefkowitz v. Turley, 414 U.S. 70, 77, 94 S. Ct. 316, 38 L. Ed. 2d 274 (1973). The privilege protects both a defendant and any other witness whose answers may expose him to future criminal liability. Lefko- witz, 414 U.S. at 77. So a witness who invokes the statutory or constitutional privilege against self-incrimination cannot be compelled to give testimony which could possibly expose him to a criminal charge. Ullmann v. United States, 350 U.S. 422, 431, 76 S. Ct. 497, 100 L. Ed. 511 (1956). But the privilege itself has limitations. The privilege against self-incrimination "ends after sentence is imposed where a plea of guilty has been regularly accepted by the court, and no motion is made to withdraw it." State v. Bailey, 292 Kan. 449, Syl. ¶ 7, 255 P.3d 19 (2011); State v. Longobardi, 243 Kan. 404, Syl. ¶ 1, 756 P.2d 1098 (1988). Thus, in Longobardi, a witness' later testimony about the crime for which he had already been charged and pleaded guilty could not expose him to further criminal charges. And, because he had been sentenced, his testimony could not expose him to additional punishment. As a result, our Supreme Court found the district court erred by permitting that witness to invoke the Fifth Amendment. Nonetheless, because the jury had heard the same evidence from other sources, the error was harmless. 243 Kan. at 409. Here, the district court held a hearing outside the presence of the jury to determine whether Father could be compelled to testify. Father, imprisoned at the time apparently for his crimes against K.B., had been transported to the courtroom but was not represented by counsel. Although Contreras' counsel argued that Fa- ther's prior criminal conviction terminated his privilege, the district court disagreed. It found that because Father's conviction did not include the December 2012 timeframe, Father could still be prosecuted for sex acts with K.B. in December 2012 if he testified. Contreras argues that this decision was erroneous because the district court failed to reach the heart of the issue—it did not determine whether Father's plea agreement included a promise to dismiss Father's other charges with prejudice. 270 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras

We agree that the district court's Fifth Amendment determination was made without the benefit of the essential documents that would have informed its decision. And we do not fault Con- treras for that omission. Contreras supported his position that Fa- ther could testify with Father's assertion that he could not be prosecuted for the December 2012 event involving K.B. because it would be double jeopardy.

"THE COURT: You were convicted of a crime based on a plea bargain agreement; is that correct? "[FATHER]: Yes, sir. "THE COURT: Was part of that plea bargain agreement that you would not have any criminal liability for anything else involving any crimes that you perpetrated with regard to [K.B.]? "[FATHER]: I was under the understanding that if anything happened again, it would be double jeopardy. "THE COURT: Say that again. "[FATHER]: It would be double jeopardy— "THE COURT: Okay. "[FATHER]: —is what I was informed. "THE COURT: Was part of the plea bargain agreement that whatever you entered a plea to that resulted in the conviction you wouldn't be prosecuted for any other acts with regard to [K.B.]? "[FATHER]: Yes."

Father was correct. The State invited the confusion by giving the district court Fa- ther's journal entry of judgment which showed only the dismissal of count one. The State failed to show the district court the plea agreement, the complaint, or the journal entry of arraignment which would have completed an accurate understanding of Fa- ther's prior conviction. Understanding the scope of Father's prior proceedings is essential to determining whether his testimony here might expose him to a future criminal charge. In June 2019, this court approved Contreras' motion on appeal to take judicial notice of additional documents relevant to Father's prior conviction. The State briefly asserts that the only time to take judicial notice is during a jury trial. But it makes only a conclusory statement to this effect and cites no authority to support it. Thus, we do not consider this objection. See State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019). And the authority we know of is to the contrary. See State v. Wolfe, 194 Kan. 697, 698, 401 P.2d VOL. 58 COURT OF APPEALS OF KANSAS 271

State v. Contreras

917 (1965) ("This court is authorized under K.S.A. 60-412[c] to take judicial notice of any matter specified in K.S.A. 60-409, whether or not judicially noticed by the court below."). The three documents we have judicially noticed on appeal are all from Father's Clark County case 13 CR 25: the complaint, a journal entry of arraignment, and the same journal entry of judgment that the district court reviewed. The two documents provided to us, yet not shared with the district court, support Contreras' claim that at the time of trial Father did not have a privilege against self-incrimination for the December 2012 incident with K.B. The complaint shows that Father was charged with two counts of aggravated criminal sodomy:

 The first count charged Father with aggravated criminal sodomy of a child between April 29, 2011, and March 5, 2012;  The second count charged Father with aggravated criminal sodomy of a child between March 5, 2012, and Janu- ary 10, 2013.

The journal entry of arraignment shows that in exchange for Father's plea of no contest to count one, the State agreed to dismiss count two. Count two included the timeframe in which the De- cember 2012 incident between K.B. and Father occurred—the incident Contreras wanted Father to testify about. It further shows that the court ordered that count two of the complaint be dismissed "with prejudice." The State presented the district court with only the journal entry of judgment, which reflects disposition of count one but does not mention a second count or its dismissal. The district court did not have the benefit of the complaint or the journal entry of arraignment which conclusively shows that count two was dismissed with prejudice. But the effect of that dismissal must be clear if Father is to rely on it. Did the dismissal with prejudice in 2013 insulate Father only from future charges of sodomy with K.B. between March 5, 2012, and January 10, 2013, or did that dismissal more broadly insulate him from being charged with any criminal conduct with K.B. between the dates in the dismissed count? 272 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras

A dismissal with prejudice is res judicata and "bars a later lawsuit on the same transaction or occurrence." Honeycutt v. City of Wichita, 251 Kan. 451, 458, 836 P.2d 1128 (1992).

"It has been ruled that, under our Code, two methods of dismissal are provided; one is dismissal without prejudice, and another is dismissal with prejudice to a further action. A dismissal with prejudice has been held to be an adjudication on the merits of the case, a final disposition of the controversy which bars the right to bring or maintain an action on the same claim or cause of action. Hargis v. Robinson, 70 Kan. 589, 79 P. 119 [1905], and cases there cited. See, also, Rob- inson v. Railway Co., 96 Kan. 137, 150 P. 636 [1915]; Davis v. Davis, 101 Kan. 395, 166 P. 515 [1917]; U.S. v. Parker, 120 U.S. 89, 7 S. Ct. 454, 30 L. Ed. 601 [1887]." Pulley v. Chicago, R.I. & P. Ry. Co., 122 Kan. 269, 270-71, 251 P. 1100 (1927).

Black's Law Dictionary defines the phrase "with prejudice" as "[w]ith loss of all rights; in a way that finally disposes of a party's claim and bars any future action on that claim." (Emphasis added.) Black's Law Dictionary 1919 (11th ed. 2019). Black's Law Dic- tionary defines "dismissal with prejudice" as "[a] dismissal, usu. after an adjudication on the merits, barring the plaintiff from pros- ecuting any later lawsuit on the same claim. If, after a dismissal with prejudice, the plaintiff files a later suit on the same claim, the defendant in the later suit can assert the defense of res judicata (claim preclusion)." Black's Law Dictionary 590 (11th ed. 2019). "To be clear, 'dismissal with prejudice means that [Plaintiffs] may not seek to reinstate this action' or bring any claims against these Defendants arising out of this set of facts before any court." Heine v. Township of Montclair, No. 17-12529ESJAD, 2019 WL 316167, at *5 (D.N.J. 2019) (unpublished opinion). This principle is reflected in the criminal context in State v. Hendrix, 174 So. 3d 978 (Ala. Crim. App. 2015). There, the State dismissed with prejudice a vehicular homicide indictment because of the defendant's mental disease or defect. Six years later, the State filed a second indictment based on the same facts, but alleging different legal theories, including reckless manslaughter. The question was whether the dismissal with prejudice precluded only the refiling of a vehicular homicide case, or whether it also precluded refiling any case based on the same set of operative facts. The court found, "when a trial court orders that an indictment is to be dismissed 'with prejudice,' it ultimately disposes of that case and ordinarily VOL. 58 COURT OF APPEALS OF KANSAS 273

State v. Contreras prevents subsequent indictments of the defendant based on the same set of operative facts underlying the dismissed indictment." 174 So. 3d at 981. We believe that statement of law is correct. Otherwise, the State could dismiss a case with prejudice, then refile it merely asserting different legal theories, misleading the defendant into making a plea and rendering the defendant's benefit under the plea agreement illusory. See CIT Grp./Sales Fin., Inc. v. E-Z Pay Used Cars, Inc., 29 Kan. App. 2d 676, 678-79, 32 P.3d 1197 (2001) ("a contract which purports to promise a specified performance but allows one party the discretion to determine whether to perform is only an illusory contract and unenforceable"). A dismissal with prejudice thus operates as to past crimes as transactional immunity from prosecution does as to future crimes. See K.S.A. 2019 Supp. 22-3415(b)(1) ("Any person granted transactional immunity shall not be prosecuted for any crime which has been committed for which such immunity is granted or for any other transactions arising out of the same incident." [Emphasis added.]). So when a court dismisses a count "with prejudice," that dismissal prevents later charges against the same defendant based on the same set of operative facts underlying the dismissed count. As applied here, the dismissal with prejudice prevents Father's later charge based on the same set of facts underlying count two, which was dismissed with prejudice in 2013. Thus, he cannot be charged with any criminal conduct with K.B. that may have occurred between March 5, 2012, and January 10, 2013, based on the same set of operative facts. Because the State could not have prosecuted Father for the December 2012 event, Father could not have incriminated himself by testifying about that event here. See In re A.J., No. A140927, 2015 WL 401303, at *2 (Cal. Ct. App. 2015) (unpublished opinion) (where defendant pleaded to one count and the State dismissed the other, "appellant cannot be prosecuted for [the dismissed] crime because the failure to prosecute counts transactionally related to the charge of [conviction] precludes further prosecution for any such crimes"). There is no basis for assertion of the privilege against self-incrimination "where there can be no further incrimination." Mitchell v. United States, 526 U.S. 314, 326, 119 S. Ct. 1307, 143 L. Ed. 2d 424 (1999). 274 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras

The Fifth Amendment operates only where a witness is asked to incriminate himself or herself; that is, to give testimony which could possibly expose the witness to a criminal charge. Ullmann, 350 U.S. at 431. There was no jeopardy to Father in being compelled to testify about conduct for which he could never be charged. Because the dismissal of count two prevented the State from charging Father again with a crime arising from the same events that supported the dismissed charge, Father could not be prosecuted for the December 2012 incident. Thus, he could not invoke a privilege against self-incrimination for that incident and should have been compelled to testify. See 350 U.S. at 431 ("if the criminality has already been taken away, the amendment ceases to apply"). Because Father did not have a privilege against self-incrimination, the district court erred in failing to compel his testimony. The State could then have tried to impeach Father with his prior convictions.

Harmless Error

The State contends that the district court's error was harmless. We agree that the constitutional right to compel a witness to testify is subject to a harmless error analysis.

"[U]nder the United States Constitution and the Kansas Constitution, a defendant has the right to compel a witness to appear and testify. However, the constitutional right of an accused to compel a witness to testify is not absolute. Errors which do not affirmatively appear to have prejudicially affected the substantial right of a defendant do not require reversal when substantial justice has been done. In determining that a federal constitutional error constitutes harmless error, a court must be able to declare the error had little, if any, likelihood of having changed the result of the trial, and the court must be able to declare such beyond a reasonable doubt. State v. Peltier, 249 Kan. 415, Syl. ¶ 5, 819 P.2d 628 (1991)." State v. Green, 254 Kan. 669, 680, 867 P.2d 366 (1994).

When an error infringes on a party's federal constitutional right, a court will declare a constitutional error harmless only when the party benefiting from the error persuades the court "beyond a reasonable doubt that the error complained of will not or did not affect the outcome of the trial in light of the entire record, i.e., proves there is no reasonable possibility that the error affected the verdict." State v. Ward, 292 Kan. 541, 569, 256 P.3d 801 VOL. 58 COURT OF APPEALS OF KANSAS 275

State v. Contreras

(2011) (citing Chapman v. California, 386 U.S. 18, 87 S. Ct. 824, 17 L. Ed. 2d 705 [1967]). We consider several factors in reviewing the erroneous exclusion of evidence, including: "'the importance of the witness' testimony, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and the overall strength of the case.'" State v. Burnett, 300 Kan. 419, 434-35, 329 P.3d 1169 (2014). This analysis assists our determination here. Contreras maintains that Father's testimony was central to his case because his trial was a "credibility contest," and Father's testimony that he also received unsolicited oral sex from K.B. was the sole evidence that could have corroborated his version of events. At trial, Contreras' testimony and theory was that he did not assault K.B. and he did not provoke any sexual activity— their sole sexual encounter was when K.B. initiated oral sex and Con- treras quickly rebuffed it. The district court found that Father's expected testimony was material, relevant, and admissible:

"That material fact would be whether [K.B.] commenced performance of oral sex spontaneously without encouragement, without defendant realizing what was occurring. The evidence that she did so before would tend to prove that material fact in issue, and I would find that that is therefore relevant and admissible."

Thus, the sole reason the district court did not admit Father's testimony at trial was because it erroneously found Father had a valid Fifth Amendment privilege. The State argues that Father's testimony would have been irrelevant. It asserts that because Contreras testified that K.B.'s mouth never touched his penis, Father's account of waking up to unsolicited oral sex from K.B. was irrelevant. But the jury also heard contrary evidence that K.B.'s mouth did touch Contreras' penis. And Father's testimony would have shown that K.B. ma- nipulated his clothing—as Contreras also claimed—to perform a sexual act. Father's testimony is relevant, as the district court found above. The State also asserts that Father's testimony would have been cumulative because the jury heard from other sources that Father 276 COURT OF APPEALS OF KANSAS VOL. 58

State v. Contreras had given K.B. the idea to perform oral sex—he told her that when people do good things for you, you should reward them in that way. But where K.B. got the idea to act in such a manner is not the same material fact Father was called to testify about—Father was expected to testify that K.B. tried to perform oral sex on him spontaneously and without encouragement. Unlike in Longobardi, 243 Kan. at 409, where our Supreme Court found a Fifth Amend- ment error harmless because the same testimony the defendant sought to compel was given by other witnesses, no other witness testified to the primary facts Father would have testified about. Thus, we do not agree that Father's testimony would have been cumulative. See State v. James, 309 Kan. 1280, 1305, 443 P.3d 1063 (2019) (finding abuse of discretion is the standard of review when a party challenges evidence as cumulative). This case distilled to a credibility battle between Contreras and K.B. Contreras was the only person who testified on his behalf. Although Mother testified that she did not believe K.B.'s allegations against Contreras, she did not state that she believed Contreras' account of events either. Instead, she simply recounted what Contreras had told her. Father's testimony that K.B. had initiated oral sex with him was evidence that could have given credence to Contreras' account that K.B. had done the same with him. And it was the only evidence that could do so. Father's testimony was crucial to support Contreras' claim. Not surprisingly, the State does not contend that overwhelming evidence supports Contreras' convictions. Although Popejoy collected two pairs of shorts from Contreras' home, the State presented no physical evidence of sexual abuse. The strength of the State's case rested on K.B.'s credibility. Yet evidence was presented that K.B. struggled with memory problems. She recanted her allegations about Contreras, then withdrew her recantation. Her accusations against Contreras of what events occurred and where they occurred changed over time, significantly broadening after she began therapy with Athy. Her trial testimony of events, although later in time, differed from her earlier statements to Athy and others. Her own mother told detectives and the jury that she did not believe K.B.'s accusations against Contreras. And because the State did not charge Contreras until several years after the VOL. 58 COURT OF APPEALS OF KANSAS 277

State v. Contreras events, all witnesses were asked to recall events that had occurred five years or more before trial. The overall strength of the State's case is less than overwhelming. We do not mean to suggest that Contreras would win a credibility contest. But we cannot say, beyond a reasonable doubt, that the error in not compelling Father's testimony did not affect the outcome of the trial in light of the entire record. Therefore, the error in permitting Father to invoke the Fifth Amendment privilege was not harmless.

Effect on counts other than aggravated sodomy

Lastly, the State argues that any error affected only Contreras' convictions for aggravated sodomy, so his convictions for two counts of rape and aggravated intimidation of a victim should stand. But this argument ignores the fact that Contreras denied all charges against him and that Father's testimony would have given credence to that denial. It is conceivable that had Father testified, the jury may have believed Contreras' general denial of all events. It is also conceivable that even if the jury found that K.B. put her mouth on Contreras' penis, it may have convicted him of a single count of aggravated criminal sodomy. See K.S.A. 2019 Supp. 21- 5501(b); K.S.A. 2019 Supp. 21-5504(b)(1). K.B.'s credibility was an issue not only as to the sex abuse charges, but also as to the charge of aggravated intimidation of a victim. Under these circumstances, the State fails to convince us that there is no reasonable possibility that the error affected the jury's verdict on all counts. Because the State fails to show that the erroneous exclusion of Father's testimony was harmless, we reverse all of Contreras' convictions and remand for a new trial. We find it unnecessary to address the other issues briefed on appeal. Reversed and remanded. 278 COURT OF APPEALS OF KANSAS VOL. 58

State v. Little

___

No. 120,214

STATE OF KANSAS, Appellee, v. ISAAC LOUIS LITTLE, Appellant.

___

SYLLABUS BY THE COURT

1. CONSTITUTIONAL LAW—Fourteenth Amendment—Equal Protection Clause. The Equal Protection Clause requires that all who are similarly situated be treated alike under the law.

2. SAME—Claim of Equal Protection Violation—Determination. A party claiming an equal-protection violation has to show that he or she is similarly situated to members of a class receiving different treatment. When determining whether groups are similarly situated, a court must consider any legitimate purposes of the classification.

3. CRIMINAL LAW—Sentencing for Sexually Violent Crimes—Lifetime Su- pervision. Those convicted of sexually violent crimes are subject to lifetime supervision on release from prison because of the high risk of recidivism for that class of offenders. In light of the purpose of the lifetime-supervision requirement, those offenders are not similarly situated to those convicted of other serious, but not sexually violent, crimes when considering whether imposing lifetime supervision on sexually violent offenders violates equal protection.

Appeal from Sedgwick District Court; BRUCE C. BROWN, judge. Opinion filed June 12, 2020. Affirmed.

Angela M. Davidson, of Wyatt & Sullivan, LLC, of Salina, for appellant.

Lesley A. Isherwood, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD BURGER, C.J., LEBEN and SCHROEDER, JJ.

LEBEN, J.: Convicted of rape, aggravated criminal sodomy, and other offenses, Isaac Little appeals one part of the sentence he received—lifetime supervision when he's released after serving his prison sentence. Although Kansas law requires lifetime supervision on convictions for sexually violent crimes, Little argues that giving him lifetime supervision violates his constitutional right to equal protection of the law because others who commit serious crimes, like murder, aren't subject to lifetime supervision. VOL. 58 COURT OF APPEALS OF KANSAS 279

State v. Little

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that "[n]o state shall . . . deny to any person within its jurisdiction the equal protection of the laws." That's essentially a direction that similarly situated people be treated alike. But it only applies to those who really are similarly situated in light of the purpose of the governmental provision that's involved. Here, we have a lifetime postrelease supervision provision for people convicted of sexually violent crimes. Its purpose is obvious: sexually violent offenders have higher recidivism rates and therefore need greater supervision after release. With that purpose in mind, those convicted of other crimes aren't similarly situated. Little has not shown a violation of his constitutional rights, and we affirm the district court's judgment. With that overview, let's look more carefully at Little's case and the claim he makes in this appeal. Little was part of a group of masked men who forced their way at gunpoint into a couple's home in Wichita in May 2009. The couple lived there with their small children. The man who lived there sold marijuana from time to time, and the invaders demanded money or drugs. But the couple said they had none and asked the men to leave. Instead, the invaders tore the house apart, shot the man several times, and raped and sodomized the woman. After a weeklong trial, a jury convicted Little—as either a principal actor or an aider and abettor—of attempted second-degree murder, rape, aggravated criminal sodomy, kidnapping, aggravated burglary, criminal threat, aggravated battery, and aggravated robbery. See State v. Little, No. 104,794, 2012 WL 3000342, at *1 (Kan. App. 2012) (unpublished opinion). The convictions for rape and aggravated sodomy are the significant ones in this appeal. That's because they triggered a requirement that if Little is one day released from prison—he's now serving a 330-month sentence—he will be under lifetime supervision. See K.S.A. 2008 Supp. 22-3717(d)(1)(G). (We're citing to the statute that was in place when Little committed his offenses since it applies to him. A similar statute remains in place today.) Little argues that lifetime postrelease supervision violates his right to equal protection of the law under the Equal Protection Clause of the Fourteenth Amendment. 280 COURT OF APPEALS OF KANSAS VOL. 58

State v. Little

Both the United States Supreme Court and the Kansas Su- preme Court have interpreted the Equal Protection Clause to mean that all who are similarly situated be treated alike. Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 87 L. Ed. 2d 313 (1985); State v. Limon, 280 Kan. 275, 283, 122 P.3d 22 (2005). So the first hurdle someone claiming an equal- protection violation must clear is the showing that he or she is similarly situated to people who are treated differently under the law. State v. LaPointe, 309 Kan. 299, Syl. ¶ 6, 434 P.3d 850 (2019). Here, Little cannot clear that initial hurdle. To see why, we must talk a bit about how to determine whether two groups are similarly situated. The party claiming an equal-protection violation has the burden to show a violation, and that includes showing that he or she is similarly situated to members of a class receiving different treatment. 309 Kan. 299, Syl. ¶ 6. Given that burden, it's not surprising that the complaining party gets to define the groups being compared for differing treatment. State v. Salas, 289 Kan. 245, 249, 210 P.3d 635 (2009). Little has done that. He compares two groups: (1) those convicted of serious sexual offenses, who get lifetime postrelease supervision, and (2) those convicted of other very serious crimes, like murder, who do not get lifetime postrelease supervision. As defined, the two groups are treated differently. But to determine whether there's anything wrong with treating them differently, we must first determine whether they are similarly situated. And that task doesn't take place based solely on what the party challenging the law may argue. Instead, that task takes place in a larger context: the basic question at issue in all equal-protection cases is whether the government's classification is justified by a sufficient purpose. Chemerinsky, Constitutional Law: Principles and Policies 725 (6th ed. 2019). And it's the government's purpose that's at issue— is it sufficient to justify the classification? In looking for the government's purpose, we look to see whether there is some legitimate objective the Legislature might have had—it need not have been specifically identified in the legislative enactment. See United States R.R. Retirement Bd. v. Fritz, VOL. 58 COURT OF APPEALS OF KANSAS 281

State v. Little

449 U.S. 166, 179, 101 S. Ct. 453, 66 L. Ed. 2d 368 (1980); Bar- rett ex rel. Barrett v. U.S.D. No. 259, 272 Kan. 250, 256, 32 P.3d 1156 (2001). So our first task—determining whether two groups are similarly situated—must be guided by the potential lawful purposes of the classification. See State v. Cheeks, 298 Kan. 1, 6, 310 P.3d 346 (2013) (noting that the "purpose of the law" is "the proper focus of a similarly situated inquiry"), overruled on other grounds by State v. LaPointe, 309 Kan. 299, 434 P.3d 850 (2019); Ernest v. Faler, 237 Kan. 125, 130, 697 P.2d 870 (1985) (noting that "persons similarly situated with respect to the legitimate purpose of the law [must] receive like treatment"); Shelton v. Phalen, 214 Kan. 54, Syl. ¶ 2, 519 P.2d 754 (1974) (same); Rotunda & Nowak, Treatise on Constitutional Law: Substance and Procedure § 18.2(a), pp. 312-13 (5th ed. 2012) ("Usually, one must look to the end or purpose of the legislation in order to determine whether persons are similarly situated . . . ."). If we find that the groups treated differently are similarly situated, we then must determine whether the classification is sufficiently justified by the lawful purpose. We require a sufficient connection between that lawful governmental purpose and the classification. See LaPointe, 309 Kan. 299, Syl. ¶ 5. Since we judge similarity based on the government's purpose in the classification, we must start our analysis of Little's claim by looking to see what the lawful purpose of this classification— making lifetime supervision applicable to serious sexual offenders—might be. Figuring that out isn't hard. In upholding the lifetime-supervision requirement against a claim that it was unconsti- tutionally cruel punishment, the Kansas Supreme Court noted the appropriateness of concerns about the uniquely high rate of recidivism for convicted sex offenders. State v. Mossman, 294 Kan. 901, 909-10, 281 P.3d 153 (2012); see also Smith v. Doe, 538 U.S. 84, 103, 123 S. Ct. 1140, 155 L. Ed. 2d 164 (2003). Our Supreme Court has also noted that lifetime supervision fosters rehabilitation of sex offenders while also keeping a watchful eye in light of the high potential to reoffend. State v. Williams, 298 Kan. 1075, 1088- 89, 319 P.3d 528 (2014). With those purposes in mind, the classification Little com- plains about doesn't compare similar groups. One group consists 282 COURT OF APPEALS OF KANSAS VOL. 58

State v. Little of the worst sexual offenders, and there's a special risk of recidivism for that group. The other group simply committed a variety of otherwise serious crimes. Because Little has not shown that the groups are similarly situated in the light of the government's purpose, we hold that Little has not shown an equal-protection violation here. Our holding today is in line with a decision from the United States Court of Appeals for the Tenth Circuit and an unpublished decision from our court. See Carney v. Oklahoma Dept. of Public Safety, 875 F.3d 1347, 1353 (10th Cir. 2017); State v. Pjesky, No. 119,256, 2019 WL 1976466, at *2-3 (Kan. App.) (unpublished opinion), rev. denied 311 Kan. ___ (December 31, 2019). In his appellate brief, Little cited to two cases dealing with access to DNA testing. A Kansas statute, K.S.A. 21-2512, offers postconviction DNA testing only to those convicted of first-degree murder or rape. In two cases, Kansas appellate courts found an equal-protection violation when postconviction testing wasn't also made available to those convicted of second-degree murder, Cheeks, 298 Kan. at 11, and aggravated indecent liberties with a child, State v. Kelsey, 51 Kan. App. 2d 819, 829, 356 P.3d 414 (2015). Little argues that imposing lifetime supervision only for sexually violent offenses similarly violates equal protection. The State says that we should reject that argument since Cheeks was overruled in LaPointe, 309 Kan. at 854, and Kelsey was based on Cheeks. Kelsey, 51 Kan. App. 2d at 421. But even if Cheeks had not been overruled, that wouldn't affect the result here. The purpose of the statute providing postconviction DNA testing was "to provide an opportunity for exoneration to innocent indi- viduals convicted of severe crimes." Cheeks, 298 Kan. at 6. Argu- ably, in light of that purpose, defendants convicted of similarly serious offenses would be similarly situated. In our case, though, the purpose of the lifetime-supervision provision is uniquely applicable to sexually violent offenders. So Little cannot show similarity based merely on the serious nature of other offenses. We recognize that some have criticized the method of equal- protection analysis that starts with the threshold question of whether the groups are similarly situated. The critics suggest that this makes it too easy to uphold a statute since the court never VOL. 58 COURT OF APPEALS OF KANSAS 283

State v. Little directly measures the fit between the statute's lawful purpose and the challenged classification. See State v. Hibler, 302 Neb. 325, 356, 923 N.W.2d 398 (2019) (Stacy, J., concurring) (suggesting that ending analysis at the threshold similarity question "insulate[s] the challenged classification from any meaningful equal protection review"); Shay, Similarly Situated, 18 Geo. Mason L. Rev. 581 (2011) (arguing against the use of similarity as a threshold question that ends the analysis if groups aren't sufficiently similar). We are not free to ignore the similarity test as a threshold question; that's the rule that has been stated by the Kansas Supreme Court as recently as 2019. See LaPointe, 309 Kan. 299, Syl. ¶ 5. It's also the rule applied by the Tenth Circuit. See Re- quena v. Roberts, 893 F.3d 1195, 1210 (10th Cir. 2018); Carney, 875 F.3d at 1353. We are confident, though, that the application of the similarity threshold inquiry in this case does not lead to any failure to correctly apply equal-protection principles for two reasons. First, we made sure that there was a lawful governmental purpose to the classification; we then used that lawful purpose to determine whether the groups were similarly situated. Second, Little has not shown that any level of review higher than rational-basis review (the least stringent that could be used) would be applied here to determine whether the fit between the governmental purpose and the means used (the classification) was sufficient to justify it. In this situation, we have essentially infused the similarity inquiry with enough of the full analysis to make sure we have adequately addressed the issue. See 18 Geo. Mason L. Rev. at 623-24. Little makes a brief mention of the equal-protection provisions of the Kansas Constitution Bill of Rights. But his statement of the issue in this appeal claims only that lifetime postrelease supervision violates the Equal Protection Clause of the Fourteenth Amendment, and he does not argue that the Kansas provisions give him any greater protection than the Equal Protection Clause. Accordingly, we will not consider any potential claim under the Kansas provisions. See Scribner v. U.S.D. No. 492, 308 Kan. 254, 262, 419 P.3d 1149 (2018) (declining to consider whether Kansas constitutional provisions on equal protection provide greater protection than federal counterparts in the absence of a party's argument that they do).

We affirm the district court's judgment. 284 COURT OF APPEALS OF KANSAS VOL. 58

Brungardt v. Kansas Dept. of Revenue

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No. 120,409

KYLE T. BRUNGARDT, Appellee, v. KANSAS DEPARTMENT OF REVENUE, Appellant.

___

SYLLABUS BY THE COURT

1. COURTS—Kansas Judicial Review Act—Appellate Review. Whether a court has jurisdiction under the Kansas Judicial Review Act presents a question of law over which our review is unlimited.

2. SAME—Review of Agency's Action under KJRA—District Court has Juris- diction. A petitioner seeking review of an administrative agency's decision under the Kansas Judicial Review Act must set forth his or her reasons for believing relief should be granted. When a petition gives notice to the court and the parties that the petitioner is challenging the validity of the "Officer's Certification and Notice of Suspension" form, the district court has jurisdiction to consider and resolve that question.

3. MOTOR VEHICLES—Driver's License Suspension—Required Legal No- tices. The "Officer's Certification and Notice of Suspension"—commonly called the DC-27 form—memorializes that the officer provided the driver all required legal notices under K.S.A. 2019 Supp. 8-1001. In signing that form, an officer certifies the requirements of K.S.A. 2019 Supp. 8-1002(a) have been fulfilled. If these notice and certification requirements are not met, the Division of Motor Vehicles must dismiss the administrative proceeding and return any suspended license.

4. SAME—Driver's License Suspension—Requirement of DC-27 Form Cer- tification. K.S.A. 2019 Supp. 8-1002(b) indicates that an officer's certification of a DC-27 form "shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required." This language was enacted to avoid an argument that additional foundational requirements were necessary before the Division of Vehicles could suspend a licensee's driving privileges.

5. SAME—Driver's License Suspension—Electronic Signature Equivalent to Manual Signature. "Signing" a document can encompass more than the physical act of manually writing a person's name. Instead, a signature is an indication by any distinctive mark—including a previously created image of an electronic signature—for the purpose of communicating and recording a person's authorization, certification, agreement, or identity. "Signing" is merely the act of affixing that signature.

VOL. 58 COURT OF APPEALS OF KANSAS 285

Brungardt v. Kansas Dept. of Revenue

Appeal from Finney District Court; ROBERT J. FREDERICK, judge. Opinion filed June 12, 2020. Reversed and remanded.

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

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

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

WARNER, J.: A person's signature may take many forms. Caselaw and statutes have recognized that a person may affix his or her signature by an "X" or other marking, by manually writing his or her name by hand, or even by having an amanuensis sign in a person's stead. Re- gardless of the form used, courts have emphasized that it is the person's intent in signing—to communicate and memorialize his or her authorization or agreement—that matters. The case before us presents another wrinkle in this ever-evolving discussion. Kyle Brungardt's license was suspended for driving under the influence of alcohol when he failed a breath test. He challenged the suspension, claiming the notice-and-certification form the officer provided was invalid because it used an electronic, not handwritten, signature. When presented with this claim, the district court found the process used by the breath-test machine for creating and affixing the officer's electronic signature violated Kansas implied-consent statutes. In particular, the court found the officer signed the form when he initially created the image of his electronic signature, not when that signature was affixed to the challenged form. But "signing" is broader than the physical act of handwriting a person's name. Thus, we reverse the district court's decision.

FACTUAL AND PROCEDURAL BACKGROUND

Corporal Michael Kerley of the Garden City Police Department arrested Brungardt for driving under the influence of alcohol. The circumstances leading to his arrest are uncontested in this appeal and largely irrelevant to the issues we consider here. After arresting Brungardt, Corporal Kerley administered a breath test, and Brungardt registered a blood-alcohol concentration well beyond the legal limit of .08. Corporal Kerley completed this breath test and the accompanying mandatory procedures using an Intoxilyzer 286 COURT OF APPEALS OF KANSAS VOL. 58

Brungardt v. Kansas Dept. of Revenue

9000 machine. This machine allows officers to fill out required forms—including the "Officer's Certification and Notice of Sus- pension," commonly called a DC-27 form—electronically, instead of completing multiple paper forms once testing is complete. The DC-27 form performs two primary functions. First, it memorializes that an officer provided the driver all the required ad- visories under K.S.A. 2019 Supp. 8-1001 before administering a breath test. Second, in signing that form after a driver fails a breath test, an officer certifies that various legal requirements for requesting a test were present, that the driver failed the test, and that the officer followed mandatory testing protocols. At the hearing before the district court in this case, Corporal Kerley explained that the Intoxilyzer 9000 digitizes the entire testing process, from the test itself to certifying the required notice forms:

"When it starts, we press the green button. It goes through its testing process. Its—does its—all its calibrations. After that it asks for the officer's information. I swipe my card. I verify my name, the business address, my operator ID number, and then I sign as well saying that I'm either the arresting officer or I'm just the [I]ntoxilyzer operator, or both. That signature is then used for every form subsequent from there. "After the suspect renders a breath sample and it's valid, then it will ask me, do I want to fill out any other forms, the DC-27, CDL-5, or DC-28. I can do all those forms, and it uses the same signature as the beginning, as I go through each form. So I don’t have to sign multiple times. It just uses the same signature."

An officer filling out the DC-27 form on the Intoxilyzer 9000 must check boxes and initial each line on the form regarding the various legal certification requirements. But the electronic signature used on the form (and all other forms the officer fills out) is a copy of the same electronic-signature image the officer provided initially. Brungardt's driver's license was administratively suspended by the Kansas Department of Revenue (the Department) because his blood-alcohol concentration exceeded the legal limit. He requested an administrative hearing, challenging the corporal's grounds to arrest him and administer the breath test. He also claimed the DC-27 form was invalid because it lacked an "original" signature—that is, he asserted Corporal Kerley's electronic signature on the form was ineffective. The hearing officer disagreed and affirmed the suspension. Brungardt then filed a petition VOL. 58 COURT OF APPEALS OF KANSAS 287

Brungardt v. Kansas Dept. of Revenue for judicial review with the Finney County District Court, raising multiple arguments including his claim that the DC-27 form required an "original" (nonelectronic) signature. The district court rejected Brungardt's arguments that Cor- poral Kerley lacked reasonable grounds to request the breath test and probable cause to arrest him. The court agreed with Brungardt, however, that the DC-27 form was invalid, albeit for slightly different reasons. Though the court noted that Corporal Kerley's actions were faultless in all other respects, it found the form-filling process the Intoxilyzer 9000 employs—copying an image of the officer's previous electronic signature onto the applicable forms once the officer completes them—violated Kansas implied-consent laws. The court found that Corporal Kerley had physically signed the machine when he created his electronic signature, before the test was administered and before any forms were filled out. Because K.S.A. 2019 Supp. 8-1002(b) states "certification [of the DC-27 form] shall be complete upon signing," the court found the corporal had "certified to nothing more than a blank form." The court thus concluded the DC-27 form was invalid and the Department did not have authority to suspend Brungardt's license. The Depart- ment appeals.

DISCUSSION

1. The district court had jurisdiction to determine the validity of the DC-27 form.

The Department first argues the district court lacked subject- matter jurisdiction to hear the dispositive question in this case— whether the Intoxilyzer 9000's signature procedure resulted in an invalid DC-27 form—because Brungardt did not raise that specific issue in his petition for judicial review. Whether a court has jurisdiction under the Kansas Judicial Review Act (KJRA) is a question of law over which our review is unlimited. Kingsley v. Kansas Dept. of Revenue, 288 Kan. 390, 395, 204 P.3d 562 (2009). A petitioner seeking review of an administrative agency's decision under the KJRA must set forth his or her "reasons for believing that relief should be granted." K.S.A. 77-614(b)(6). Here, 288 COURT OF APPEALS OF KANSAS VOL. 58

Brungardt v. Kansas Dept. of Revenue

Brungardt argued the invalidity of the DC-27 form at his administrative hearing and again in his petition for judicial review. While Brungardt's petition did not argue the invalidity resulted from certifying a blank DC-27 form (as the district court found), the Department's claim that the court "ruled on an entirely different issue" is overstated. Brungardt's petition gave notice to the court and the Department that he was challenging the validity of the DC-27 form. See Rebel v. Kansas Dept. of Revenue, 288 Kan. 419, 426, 204 P.3d 551 (2009). The district court had jurisdiction under the KJRA to consider and resolve that question.

2. Corporal Kerley's electronic signature did not render the DC-27 form invalid.

In signing the DC-27 form, an officer certifies the requirements of K.S.A. 2019 Supp. 8-1002(a) have been met. Because Brungardt failed the breath test, registering a blood-alcohol concentration above the legal limit, Corporal Kerley was required to certify

 he had reasonable grounds to believe Brungardt was operating a vehicle under the influence of alcohol or drugs (K.S.A. 2019 Supp. 8-1002[a][2][A]);  Brungardt had been arrested (or was in custody or had been in an accident) (K.S.A. 2019 Supp. 8-1002[a][2][B]);  he had provided the oral and written notices in K.S.A. 2019 Supp. 8-1001 (K.S.A. 2019 Supp. 8-1002[a][2][C]);  Brungardt's breath test registered a blood-alcohol concentration of .08 or greater (K.S.A. 2019 Supp. 8-1002[a][2][D]); and  the testing equipment, procedures, and operator met the Kan- sas Department of Health and Environment's certification requirements (K.S.A. 2019 Supp. 8-1002[a][3]).

K.S.A. 2019 Supp. 8-1002(f) directs the Division of Motor Vehicles to return any suspended license if these notice-and-certification requirements are not met. K.S.A. 2019 Supp. 8-1002(b) indicates that this certification "shall be complete upon signing, and no additional acts of oath, affirmation, acknowledgment or proof of execution shall be required." (Em- phasis added.) Previous Kansas implied-consent statutes required officers to report a test refusal under oath. See Dewey v. Kansas VOL. 58 COURT OF APPEALS OF KANSAS 289

Brungardt v. Kansas Dept. of Revenue

Dept. of Revenue, 11 Kan. App. 2d 72, 73-75, 713 P.2d 490 (1986). But in 1985, the legislature enacted the current language, which "requires only that the law enforcement officer's certification be signed." 11 Kan. App. 2d at 74. This court has explained that these revisions were enacted "to avoid an argument that additional foundational requirements were necessary before the Divi- sion of Vehicles could suspend a licensee's driving privileges." Enslow v. Kansas Dept. of Revenue, 26 Kan. App. 2d 953, 956, 996 P.2d 361 (2000). K.S.A. 2019 Supp. 8-1002 is a "remedial law" and "shall be liberally construed to promote public health, safety and welfare." K.S.A. 2019 Supp. 8-1001(u). Corporal Kerley explained in his testimony that an officer performing a breath test using the Intoxilyzer 9000 creates an electronic signature at the beginning of the process (before administering the test) by physically signing on a screen that captures the image electronically. The machine then affixes this recorded electronic-signature image to the applicable forms as the officer fills them out. Corporal Kerley noted that the machine requires the certifying officer to check boxes and initial every line on the DC-27 form; the officer's signature is automatically affixed to the form when it is complete. The district court found that because K.S.A. 2019 Supp. 8- 1002(b) states that certification is "complete upon signing," Cor- poral Kerley's physical signature was the certifying act, not later affixing the electronic signature to the completed form. Based on this reading, the court found Corporal Kerley had certified the DC- 27 form before filling it out, meaning he certified a blank document. We disagree. The district court interpreted "signing" in K.S.A. 2019 Supp. 8-1002(b) as the physical act of writing one's name. But "signing" is much broader in scope. Indeed, practical experience teaches that people often "sign" documents in electronic form without manually writing anything. For example, attorneys sign pleadings filed electronically by typing "/s/ [Attorney's Name]." See Supreme Court Rule 1.12(a)(1) (2020 Kan. S. Ct. R. 12). Members of this court sign orders by affixing a digital image of a previously scanned signature. And Kansas law is replete with statutes recog- nizing electronic signatures as equivalents of physical, manual 290 COURT OF APPEALS OF KANSAS VOL. 58

Brungardt v. Kansas Dept. of Revenue signatures. See, e.g., K.S.A. 2019 Supp. 8-2119(b) (electronic signature has the same effect as a manual signature in traffic citation); K.S.A. 2019 Supp. 16-1602(i) (defining "electronic signatures" under the Uniform Electronic Transactions Act); K.S.A. 58a-1102 (discussing electronic signatures under the Kansas Uniform Trust Code); K.S.A. 2019 Supp. 84-1-108 (discussing electronic signatures under the Uniform Commercial Code). In fact, Kansas law acknowledges that in the absence of a mandated signature format, it is a person's intent in affixing his or her signature, not its form, that controls its effectiveness. As the Kansas Supreme Court explained more than a century ago in a case involving the writing requirement of the statute of frauds:

"It is not necessary that the signature of a party to a memorandum, under the statute requiring a signing, should be at the bottom or end of the memorandum, but it may be at the top, in the middle, or inserted in any other part of the paper. But in all cases the name of the party to be charged must be affixed in such a manner as to authenticate the instrument. The signature may be by mark, initials, pencil, typewriting, print, or stamp, if the party to be charged intended by the mark, initials, pencil, print, or stamp to affix the same as his signature, with the purpose to complete or authenticate the contract as his own contract, and to indicate his intention to be bound thereby." (Emphasis added.) Guthrie v. Ander- son, 49 Kan. 416, 419-20, 30 Pac. 459 (1892).

Thus, courts in this state have long recognized that "signing" a document encompasses more than the physical act of manually writing a person's name. Instead, a signature is an indication by any distinctive mark—including a previously created image of an electronic signature—for the purpose of communicating and recording his or her authorization, certification, agreement, or identity. "Signing" is merely the act of affixing that signature. Here, the Intoxilyzer 9000 affixed Corporal Kerley's signature to and printed the DC-27 form after the corporal checked and ini- tialed all required certification provisions. Although Corporal Kerley did not physically write his name on the DC-27 form, he effectively adopted and attested to the form—that is, he signed it—when his electronic signature was applied. The fact that Cor- poral Kerley's physical act of recording the image of his electronic signature occurred before he filled out the DC-27 form does not invalidate his certification. VOL. 58 COURT OF APPEALS OF KANSAS 291

Brungardt v. Kansas Dept. of Revenue

The district court's interpretation of K.S.A. 2019 Supp. 8- 1002(b) failed to account for technological advancement and overlooked the law's historical flexibility as to acceptable forms of signatures. Thus, the district court erred when it reversed the suspension of Brungardt's driver's license. We reverse that decision. Brungardt did not cross-appeal the district court's other findings regarding Corporal Kerley's probable cause to arrest him or reasonable grounds to request a breath test. Those decisions remain in force. Because the record before us is unclear as to which, if any, of Brungardt's other claims in his petition for judicial review require further action, we remand the case to the district court.

Reversed and remanded. 292 COURT OF APPEALS OF KANSAS VOL. 58

Schmitendorf v. Taylor

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No. 120,123

KAREN SCHMITENDORF, Appellant, v. DEBORAH TAYLOR, as Trustee of the V. LOUISE PARK REVOCABLE LIVING TRUST; and DEBORAH TAYLOR, Individually, Appellees.

___

SYLLABUS BY THE COURT

1. SUMMARY JUDGMENT—Summary Judgment Ruling—Appellate Re- view. In an appeal from a district court's ruling on a summary judgment motion, appellate courts consider the motion de novo and apply the standards set forth in K.S.A. 2019 Supp. 60-256(c)(2).

2. SAME—Grant of Summary Judgment—Application. Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

3. ESTATES—Family Settlement Agreement—Statutory Definition. As authorized by K.S.A. 59-102(8), a family settlement agreement is "a written and acknowledged instrument which affects the administration or distribution of [an] estate and which is entered into by all interested heirs, devisees, legatees and persons whose interests are affected by the settlement agreement, all of whom must be competent or authorized to enter into such agreement."

4. CONTRACTS—Family Settlement Agreements Interpreted by Law of Con- tracts. The law of contracts governs the enforcement and interpretation of family settlement agreements. Like other contracts, the primary rule for interpreting a family settlement agreement is to ascertain the parties' intent. If the terms of the family settlement agreement are clear, the intent of the parties is to be determined from the language used without applying rules of construction.

5. ESTATES—Family Settlement Agreements—Resolves Legal Disputes. Kansas law favors the settlement of legal disputes. When parties enter into a family settlement agreement resolving a dispute relating to the administration or distribution of an estate, neither party is permitted to repudiate the settlement absent bad faith or fraud. Hindsight, buyer's remorse, or other after-the-fact impulses cannot invalidate a family settlement agreement.

Appeal from Douglas District Court; JAMES R. MCCABRIA, judge. Opinion filed June 19, 2020. Affirmed.

VOL. 58 COURT OF APPEALS OF KANSAS 293

Schmitendorf v. Taylor

Jeffrey R. King, of Sage Law LLP, of Overland Park, for appellant.

Geri L. Hartley, of Paola, for appellees.

Before BRUNS, P.J., GREEN, J., and TIMOTHY J. CHAMBERS, Dis- trict Judge, assigned.

BRUNS, J.: This case arises out of an ongoing family dispute over the disposition of the V. Louise Park Revocable Living Trust. Karen Schmitendorf brought this action against the trust, and against the trustee—Deborah Taylor, individually. The district court granted summary judgment in favor of Taylor on the basis that a Family Settlement Agreement entered into by Schmitendorf and Taylor to resolve prior litigation precluded the claims asserted in this case. Based on our review of the unambiguous terms of the Family Settlement Agreement entered by the parties, we agree with the district court and affirm its decision.

FACTS

Schmitendorf and Taylor were first cousins once removed to Vera Louise Park, who is now deceased. On August 4, 1993, Park—who was single and had no children—created the V. Louise Park Revocable Trust. This revocable living trust designated Park as the trustee. In the event of disability, incompetency, or incapacity, Park's sister—Genevieve P. Jones—was to serve as successor trustee. If Jones died or was to serve as trustee, Schmitendorf was to serve in that capacity. The original trust provided that in the event of Park's death, the assets were to be distributed as follows:

"As soon as reasonably possible after the death of Grantor, the Trustee shall divide the trust estate as follows: eighty percent (80%) to Genevieve P. Jones and twenty percent (20%) to Karen Schmitendorf Brandt, except that if Gene- vieve P. Jones predeceases the Grantor then her share shall go and be conveyed and transferred outright, free from Trust, to Karen Schmitendorf Brandt, but if Karen Schmitendorf Brandt predeceases Grantor, then her share shall be conveyed to Jay A. Schmitendorf."

For several years, Park lived with Jones at John Knox Village in Lee's Summit, Missouri. However, Jones died in October 2012 and Park—who was then 87 years old—moved to Bridge Haven Memory Center in Lawrence. At the time, Schmitendorf lived in 294 COURT OF APPEALS OF KANSAS VOL. 58

Schmitendorf v. Taylor

Davis, California, and Taylor lived in Lawrence. The purpose of the move was so that Park would be closer to Taylor in case she needed assistance. In order to effectuate the move, Park signed durable powers of attorney, naming both Schmitendorf and Tay- lor. On November 15, 2012, Schmitendorf and Taylor met with Molly Wood—an attorney who practices elder law in Lawrence— to discuss Park's long-term care planning and Jones' estate as well as other matters. A few months later, Schmitendorf and Taylor met with Wood again. At the second meeting, Park's trust was discussed but the parties dispute the details of the discussions. At some point, Schmitendorf provided a copy of Park's trust to Wood. In turn, Wood prepared a draft amendment to the trust that provided that the remainder of the trust assets would be distributed in equal shares to Schmitendorf and Taylor upon Park's death. The amendment also designated Schmitendorf as trustee of Park's trust and Taylor as successor trustee. On February 11, 2013, Schmitendorf returned to her home in California. Three days later, Wood met alone with Park in a conference room to discuss the amendment to the trust. While the two met, Taylor remained in the lobby. During this meeting, Park executed the trust amendment and Wood notarized her signature. After the February 14, 201 meeting, Wood provided copies of the 2013 trust amendment signed by Park to both Schmitendorf and Taylor. The 2013 amendment changed the distribution of the trust assets in the event of Park's death, as follows:

"WHEREAS in recognition of Genevieve P. Jones's death, the Grantor wishes to alter the Trust's distribution pursuant to Paragraph 3 Death of Grantor; "THEREFORE, pursuant to her reserved authority, V. LOUISE PARK does hereby replace paragraph 3.1 with the following: "As soon as reasonably possible after the death of Grantor, the Trustee shall divide the trust estate to be conveyed outright, free from Trust as follows: 50% to Karen Schmitendorf, per stirpes, and 50% to Deborah D. Taylor, per stirpes."

Even after the 2013 amendment was signed, Schmitendorf continued to act as the sole trustee of Park's trust. In June 2014, Schmitendorf purchased a house in Lawrence—using trust assets—in anticipation of Park living there and Schmitendorf open- ing a small assisted living facility. Although Park never moved in, VOL. 58 COURT OF APPEALS OF KANSAS 295

Schmitendorf v. Taylor

Schmitendorf moved from California and began living in the house owned by the trust. In September 2014, Schmitendorf made a substantial gift from the trust assets to the Greater Kansas City Community Foundation in order to establish an endowment in Park's name. About a year later, Schmitendorf—in her capacity as trustee— transferred the deed to the house in Lawrence from Park's trust into the Karen K. Schmitendorf Family Trust. The following month, Schmitendorf received a letter from an attorney representing Taylor expressing concern about the use of trust assets. In addition, Taylor indicated that she intended to file the necessary pa- perwork to be named as Park's guardian. On January 15, 2016, Taylor filed a petition for the appointment of a guardian for Park. In the petition, Taylor requested that the district court appoint her as Park's guardian. The following month, Schmitendorf filed her answer and counterclaim in which she asked the district court to name her as guardian should it be determined that a guardianship was necessary. Moreover, Schmitendorf asked the district court to declare the durable powers of attorneys executed by Park in 2012 to be void due to Park's lack of capacity. In particular, Schmitendorf asserted:

"19. On August 4, 1993, Vera Louse Park executed the V. Louse Park Rev- ocable Living Trust. . . . "20. A purported amendment to the V. Louise Park Revocable Living Trust was executed on February 14, 2013...... "22. In October and November 2012, the capacity of V. Louise Park was diminished to such an extent that she did not understand or know the nature and extent of her assets, could not readily [identify] visiting family and was dependent on others for her care. "23. Upon information and belief, as early as 2012, V. Louise Park was diagnosed with Dementia (Alzheimer's type) and any document she signed after such diagnosis would have been done at a time when she did not have sufficient contractual capacity to execute such documents. "24. Upon information and belief, sometime prior to October 2012, Gene- vieve P. Jones determined V. Louise Park was no longer able to handle her affairs due to disability, incompetency or incapacity, and Genevieve P. Jones began acting as Successor Trustee under the Trust."

In early 2016, the district court appointed a guardian ad litem to represent Park's interests in the litigation. Subsequently, the 296 COURT OF APPEALS OF KANSAS VOL. 58

Schmitendorf v. Taylor parties agreed to attempt to resolve their disputes with the assistance of the guardian ad litem. Initially, these negotiations were not successful, and Taylor filed a "Petition for Immediate Re- moval of Trustee and Damages for Breach of Trust" in the district court. In doing so, Taylor sought the removal of Schmitendorf as the trustee of Park's trust and alleged "multiple acts of breach of trust, financial misappropriation and self-dealing [by Schmiten- dorf] . . . concerning approximately $1 million of assets." Later, the district court consolidated the removal action with the guardianship case. The parties continued to participate in settlement negotiations and signed a limited settlement agreement regarding the transfer of money to the Greater Kansas City Community Foundation. In the agreement, the parties agreed that the amount of $251,709 would be transferred back to the trust, and the Foundation subsequently returned the money. The agreement recognized that both Schmitendorf and Taylor "are currently designated as equal beneficiaries of the V. Louise Park Revocable Living Trust executed on August 4, 1993 . . . ." Ultimately, Schmitendorf and Taylor were also able to agree on the terms of a Family Settlement Agree- ment pursuant to K.S.A. 59-102(8). On July 20, 2016, the district court held an evidentiary hearing to consider the Family Settlement Agreement as well as the guardianship issue. At the beginning of the hearing, counsel representing Schmitendorf and Taylor announced that the parties had entered into a Family Settlement Agreement and submitted it for the court's approval. Likewise, counsel announced that the parties had agreed to be appointed as Park's co-guardians. The Family Settlement Agreement presented to the district court provides:

"All parties to this Agreement desire to agree to a settlement of the matters at hand including trust assets and distributions, care and control of V. Louise Park, and future estate matters as best they can be determined at this date. . . . . "5. Distribution: Each party hereto consents and agrees that after the payment of all costs and expenses as listed above all of the remaining assets of Vera Louise Park and the Trust be divided, per the Amendment to the Trust dated February 14, 2013, as follows: "a. Karen Schmitendorf shall receive 50%, per stirpes, and VOL. 58 COURT OF APPEALS OF KANSAS 297

Schmitendorf v. Taylor

"b. Deborah D. Taylor shall receive 50% share, per stirpes."

Paragraph 6 of the Family Settlement Agreement provided additional terms agreed upon by the parties, including:

 Schmitendorf agreeing to resign as successor trustee and Taylor being appointed as the new successor trustee;  Confirming that the funds given to the Greater Kansas City Commu- nity Foundation would be returned to Park's trust in accordance with the previous agreement of the parties;  Schmitendorf agreeing to execute a promissory note and mortgage to Park's trust in the amount of $323,000, in return for the transfer to her of the house in Lawrence purchased with trust assets;  Schmitendorf agreeing to execute a promissory note to the trust in the amount of $106,430, as reimbursement for expenditures of trust assets for which she received the benefit; and  Taylor agreeing to execute a promissory note to the trust in the amount of $60,662, as reimbursement for expenditures of trust assets for which she received the benefit.

Paragraph 7 of the Family Settlement Agreement provided:

"By signing this Agreement neither party admits or denies that they have acted improperly or have any fault or liability in relationship to the other, the Trust, Vera Louise Park, or any other potentially interested persons. This Agree- ment shall not be interpreted in any manner except to represent the intentions of the parties to resolve their disagreements in a practical manner."

In addition, Paragraph 8 of the Family Settlement Agreement stated in part:

"The parties hereto consent to the entry of an order of the District Court of Doug- las County, Kansas, approving and incorporating this agreement and its attach- ments as the court's findings as to the proper resolution of the parties' conflict. The agreement shall constitute a 'valid settlement agreement' as that term is defined in K.S.A. 59-102(8) and shall be enforceable as such under the laws of the State of Kansas."

At the evidentiary hearing, Schmitendorf testified under oath—in response to questions from her attorney—as follows:

"Q. Okay. Ms. Schmitendorf, you and I have worked on this matter for some time; is that correct? "A. Yes. "Q. Do you fully understand the terms and conditions of the agreement? "A. Yes, I do. "Q. Is it true to say that you regret that this has come down to an agreement, but yet you fully understand the terms and conditions? 298 COURT OF APPEALS OF KANSAS VOL. 58

Schmitendorf v. Taylor

"A. Yes. "Q. And no one has forced you to sign this? "A. No. "Q. And its voluntary? "A. Yes. "Q. And you believe it's in your best interests to do so? "A. I believe it's in my interests, and Louise's interests, yes."

After considering the evidence and the arguments of counsel the district court approved the Family Settlement Agreement. The district court also appointed Schmitendorf and Taylor as co-guardians of Parks. The district court subsequently entered a journal entry memorializing its approval of the Family Settlement Agree- ment. Among other things, the journal entry states:

"The Court, after hearing the evidence and arguments of counsel, reviewing the pleadings on file, and being well and fairly advised in the premises, hereby finds and orders as follows: . . . . "2. The Family Settlement Agreement presented and acknowledged in front of the Court is admitted to the record. The Family Settlement Agreement is a full and final settlement of all the Petitions and pleadings filed by Deborah D. Taylor, Vera Louise Park, Karen Schmitendorf, by and through their respective attorneys, to date. "3. A Petition to Appoint Co-Guardians was presented to the Court and an Order appointing Co-Guardians is granted. Karen Schmitendorf and Deborah D. Taylor shall be issued Letters of Co-Guardianship."

It is undisputed that both Schmitendorf and Taylor subsequently fulfilled their respective financial duties and obligations as set forth in the Family Settlement Agreement. Unfortunately, Park died November 6, 2016. Just two days later, Schmitendorf filed a "Petition to Contest Validity of 2013 Amendment of Trust" that is the subject of this appeal. In the petition, Schmitendorf alleged that Park lacked the capacity to execute the 2013 amendment to the trust. In addition, Schmitendorf claimed that Taylor exercised undue influence over Park. The district court subsequently directed distributions to be made to Schmitendorf and Taylor—as co-beneficiaries of Park's trust—in accordance with the terms of the 2013 amendment to the trust as provided for under the terms of the Family Settlement Agreement. Nevertheless, the litigation continued. VOL. 58 COURT OF APPEALS OF KANSAS 299

Schmitendorf v. Taylor

On May 29, 2018, Taylor filed a motion seeking summary judgment. In her motion, Taylor argued that the plain and unambiguous language of the Family Settlement Agreement precluded the claims asserted by Schmitendorf in this case. Specifically, Taylor asserted that the terms of the Family Settlement Agreement reflect the parties' intent to settle any and all issues regarding the distribution of the assets of Park's trust—including any questions regarding the validity of the 2013 amendment to the trust agreement. In response, Schmitendorf argued that her claims regarding Park's capacity and Taylor's alleged undue influence were not covered by the terms of the Family Settlement Agreement. On August 22, 2018, the district court granted the motion for summary judgment in favor of Taylor. In a comprehensive memorandum decision, the district court ruled that the language used in the Family Settlement Agreement

"clearly addresses any dispute about the enforceability of [the] 2013 Trust Amendment (affirming its material terms), and since there was an express claim of [Park's] incapacity within that litigation, there is no question that . . . any claim challenging the 2013 Trust Amendment based on lack of capacity of Vera Park would be barred as a matter of law."

Moreover, the district court ruled that the language used in the Family Settlement Agreement "clearly encompasses a claim of undue influence over Ms. Park." The district court further ruled that the introduction of "extrinsic evidence as to the meaning or purpose of the [Family Settlement Agreement] is unnecessary, and would be improper, in the face of such plain language." The district court reasoned:

"The characterization by Ms. Schmitendorf that the Guardianship case involved 'only' the question of whether a guardian/conservator should be appointed is belied by the terms of the [Family Settlement Agreement] itself. It addresses more than just whether a guardian should be appointed and who should be appointed. It addresses the operation, funding, and distribution of trust assets."

The district court also found that there was nothing in the Family Settlement Agreement reserving any potential cause of action for determination at a later date. Likewise, the district court found no indication that Schmitendorf had newly discovered evidence that was discovered after the Family Settlement Agreement was executed by the parties and approved by the court. The district 300 COURT OF APPEALS OF KANSAS VOL. 58

Schmitendorf v. Taylor court concluded: "The [Family Settlement Agreement], on its face, addresses 'trust assets and distributions' and 'future estate matters as best as they can be determined at this date.' The 2013 Trust Amendment concerns distribution of trust assets. It fell squarely within such language."

ANALYSIS

On appeal, Schmitendorf contends that the district court erred in granting summary judgment as a matter of law in favor of Tay- lor. Consequently, the primary issue that we must resolve is whether the Family Settlement Agreement previously entered into by the parties—and approved by the district court—precludes the claims asserted by Schmitendorf in this case. The parties do not contest the validity of the Family Settlement Agreement. Rather, Schmitendorf and Taylor disagree over the interpretation of the terms of their agreement.

Standard of Review

Under K.S.A. 2019 Supp. 60-256(c)(2), a district court may enter summary judgment where "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." See also Kansas Supreme Court Rule 141 (2019 Kan. S. Ct. R. 211). As the Kansas Supreme Court has explained:

"'"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and 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 P.3d 432 (2018).

Here, the resolution of the issue presented requires interpretation of the Family Settlement Agreement executed by the parties. VOL. 58 COURT OF APPEALS OF KANSAS 301

Schmitendorf v. Taylor

The interpretation and legal effect of written instruments are matters of law over which our review is unlimited. Born v. Born, 304 Kan. 542, 554, 374 P.3d 624 (2016); Prairie Land Elec. Co-op v. Kansas Elec. Power Co-op, 299 Kan. 360, 366, 323 P.3d 1270 (2014). "The primary rule in interpreting written contracts is to ascertain the intent of the parties. If the terms of the contract are clear, there is no room for rules of construction, and the intent of the parties is determined from the contract itself." Liggatt v. Em- ployers Mutual Cas. Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002). Likewise, "a court ascertains the parties' intent from the four corners of the [written] agreement, construing 'all provisions together and in harmony with each other rather than by critical analysis of a single or isolated provision.'" Iron Mound v. Nueterra Healthcare Management, 298 Kan. 412, 418, 313 P.3d 808 (2013). Our review of the scope of prior litigation and whether such prior actions preclude litigation claims is also unlimited. See Venters v. Sellers, 293 Kan. 87, 93, 261 P.3d 538 (2011).

Family Settlement Agreement

Kansas law favors the settlement of legal disputes. Absent bad faith or fraud, litigants who agree to resolve disputes may not subsequently repudiate their agreements. In re Estate of Thompson, 226 Kan. 437, 440, 601 P.2d 1105 (1979); see James Colborn Rev- ocable Trust v. Hummon Corp., 55 Kan. App. 2d 120, 128, 408 P.3d 987 (2017). In interpreting settlement agreements, it is important to remember that "'[t]he law favors settlement of disputes'" over prolonged litigation. O'Neill v. Herrington, 49 Kan. App. 2d 896, 903, 317 P.3d 139 (2014). In particular, "family settlement agreements are favorites of the law and when fairly made, are to be given liberal interpretation and should not be disturbed by those who entered into them or by those claiming under or through them." In re Estate of Thompson, 226 Kan. at 441; see Butts v. Lawrence, 22 Kan. App. 2d 468, 471, 919 P.2d 363 (1996); Cassity-Hauck v. Hauck, No. 120,022, 2019 WL 1497083, at *5 (Kan. App. 2019), rev. denied 310 Kan. 1061 (2019). Our Supreme Court has found that family settlement agreements are favored because they "prevent litigation between heirs which is so often wasteful and which engenders such bitter feeling between people who should have a tender regard for each 302 COURT OF APPEALS OF KANSAS VOL. 58

Schmitendorf v. Taylor other. The desire that family harmony should not be destroyed by an unequal distribution [of assets] has been held sufficient consideration to support a family settlement." Mills v. Purdy, 142 Kan. 133, 135-36, 45 P.2d 1049 (1935). As defined in K.S.A. 59-102(8), a family settlement agreement is "a written and acknowledged instrument which affects the administration or distribution of the estate and which is entered into by all interested heirs, devisees, legatees and persons whose interests are affected by the settlement agreement, all of whom must be competent or authorized to enter into such agreement." The law of contracts governs the enforcement and interpretation of family settlement agreements. See Ferguson v. Smith, 31 Kan. App. 2d 311, 313, 63 P.3d 1119 (2003). Like other contracts, the primary rule for interpreting a family settlement agreement 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." Peterson v. Ferrell, 302 Kan. 99, 104, 349 P.3d 1269 (2015). Schmitendorf argues that Kansas law assumes that silence in a contract at a minimum creates an ambiguity requiring the consideration of extrinsic evidence. However, we do not find Horizon Holdings, L.L.C. v. Genmar Holdings, Inc., 244 F. Supp. 2d 1250, 1268 (D. Kan. 2003)—which Schmitendorf cites as support for her argument—to be particularly helpful to our analysis in this case. Even though silence may create an ambiguity under some circumstances, we note that the Family Settlement Agreement executed by Schmitendorf and Taylor expressly states that the parties intended to settle "the matters at hand including trust assets and distributions, care and control of V. Louise Park, and future estate matters as best they can be determined at this date." (Em- phases added). Like the district court, we find this language to be significant in determining the intent of the parties. As the district court found, the parties were aware of the issues relating to Park's mental capacity as well as those relating to alleged undue influence when they signed the Family Settlement Agreement. Significantly, the Family Settlement Agreement was entered approximately three years after Park executed the 2013 VOL. 58 COURT OF APPEALS OF KANSAS 303

Schmitendorf v. Taylor amendment to her trust. Further, the Family Settlement Agreement un- equivocally states that it covered all of the parties' disputes—including those relating to the trust assets and distributions. In fact, the Family Settlement Agreement specifically adopted the distribution method set forth by Park in the 2013 trust amendment. Thus, we find that any challenge to the 2013 trust amendment was included in the "trust assets and distributions" and "future estate matters" provisions in the Family Set- tlement Agreement. Although it is true that Schmitendorf did not seek to invalidate the 2013 trust amendment in the first lawsuit, she explicitly argued in the previous litigation that Park lacked capacity as early as 2012. As a review of the record reveals, Schmitendorf argued in the prior litigation that Park did not have the capacity to execute the 2012 durable powers of attorneys or other legal documents after that time. Specifically, Schmitendorf alleged in her counterclaim in the prior litigation that "as early as 2012, V. Louise Park was diagnosed with Dementia (Alzhei- mer's type) and any document she signed after such diagnosis would have been done at a time when she did not have sufficient contractual capacity to execute such documents." (Emphasis added.) Conse- quently, the concerns regarding Park's capacity to execute legal documents at the time the 2013 trust amendment was signed were well known to the parties when at the time that they executed the Family Settlement Agreement. Next, Schmitendorf suggests that the language of the Family Set- tlement Agreement does not preclude litigation regarding the validity of the 2013 amendment to Park's trust. She argues that the Family Set- tlement Agreement was restricted to three issues: (1) removal of Schmitendorf as trustee; (2) the appointment of a guardian ad litem for Park, and (3) repayment to the trust of funds paid from it on behalf of both Schmitendorf and Taylor. We disagree with Schmitendorf's re- strictive reading of the plain and unambiguous language of the Family Settlement Agreement. As the district court pointed out in its memorandum decision, the language of the Family Settlement Agreement clearly reflects the parties' desire to settle all disputes relating to the trust assets as well as the distribution of trust assets. The Family Settlement Agreement also reflects the parties' desire to settle all disputes relating to the "care and control of Vera Louise Park . . . ." Likewise, "by signing this Agree- ment neither party admits or denies that they have acted improperly or 304 COURT OF APPEALS OF KANSAS VOL. 58

Schmitendorf v. Taylor have any fault or liability in relationship to the other, the Trust, Vera Louise Park, or any other potentially interested parties." (Emphasis added.) Thus, we find that that the language of the Family Settlement Agreement reflects the intent of the parties not only to resolve the specific claims asserted in the prior litigation but also to resolve future disputes relating to the trust as well as to the estate of Vera Louise Park. Furthermore, the parties' intent to allow Park's 2013 amendment to the trust to stand is found in Paragraph 5 of the Family Settlement Agreement. This paragraph states:

"Each party hereto consents and agrees that after the payment of all costs and expenses as listed above all of the remaining assets of Vera Louise Park and the Trust be divided, per the Amendment to the Trust dated February 14, 2013, as follows: "a. Karen Schmitendorf shall receive 50%, per stirpes, and "b. Deborah D. Taylor shall receive 50% share, per stirpes." (Emphasis added.)

In other words, the plain language of the Family Settlement Agree- ment provided that Taylor be added as a trust beneficiary and that the assets of the Park trust should be divided equally—per stirpes—between Taylor and Schmitendorf after Park died. As the district court recognized, this is the manner of distribution set forth by Park in her 2013 amendment to the trust agreement. As such, we find that Schmitendorf's argument regarding the 2013 amendment contradicts the plain and unambiguous language of the Family Settlement Agree- ment because there is nothing in the Family Settlement Agreement to suggest that the distribution is contingent upon a ruling by the district court regarding the validity of the 2013 amendment. We note that Schmitendorf does not allege she discovered new information after the Family Settlement Agreement was approved by the district court. Rather, a review of the record reveals that the parties were well aware of Schmitendorf's concerns about Park's capacity as well as possible undue influence when the Family Settlement Agree- ment was approved by the district court. As such, if Schmitendorf truly anticipated future litigation regarding the validity of the 2013 amendment, she should have reserved the right in the Family Settlement Agreement. However, Schmitendorf did not do so. By claiming that she did not intend to give up her right to file a subsequent lawsuit to challenge the validity of the 2013 trust amendment, Schmitendorf is essentially repudiating the Family Settlement Agreement that she voluntarily signed and that was approved by the VOL. 58 COURT OF APPEALS OF KANSAS 305

Schmitendorf v. Taylor district court in 2016. When parties enter into an agreement settling and adjusting a dispute, neither party is permitted to repudiate the settlement. James Colborn Revocable Trust, 55 Kan. App. 2d at 128; see Nauman v. Kenosha Auto Transport Co., 186 Kan. 305, 310, 349 P.2d 931 (1960). Hindsight, buyer's remorse, or other after-the-fact impulses cannot invalidate a settlement. See Fieser v. Stinnett, 212 Kan. 26, 32- 33, 509 P.2d 1156 (1973). As this court recognized in Wichita Clinic v. Louis, 39 Kan. App. 2d 848, 852-53, 185 P.3d 946 (2008), we have a duty to sustain agreements that are fairly entered into by the parties rather than seeking loopholes or technical legal grounds for defeating the agreements. Even though Schmitendorf did not explicitly plead undue influence in the 2016 case, she did raise that issue of Park's capacity to execute the 2013 amendment to the trust. As noted by the district court, the language used in the Family Settlement Agreement that the parties were resolving their disputes regarding "trust assets and distribution" is broad enough to encompasses a wide range of potential claims. In fact, Section 3.3.6 of the KBA Kansas Probate & Trust Administration After Death (7th ed. 2008), identifies testamentary capacity, undue influence, and ambiguity in the written instrument as common grounds for litigation. As such, we find that the plain and unambiguous language of the Family Settlement Agreement precludes Schmitendorf from challenging the validity of the 2013 amendment under the theories of lack of capacity as well as undue influence.

CONCLUSION

In 2016, Schmitendorf and Taylor voluntarily entered into a valid Family Settlement Agreement in which they expressed the intent to resolve their disputes relating to the V. Park Revocable Living Trust and the distribution of trust assets upon Park's death. In Kansas, such agreements are favored because they promote family harmony and prevent wasteful litigation between beneficiaries. Like the district court, we conclude that the plain and unambiguous language of the Family Set- tlement Agreement signed by the parties precludes Schmitendorf from asserting her claims for relief in this case. Therefore, the district court did not err in granting summary judgment in favor of Taylor as a matter of law.

Affirmed. 306 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co.

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No. 120,068

THOROUGHBRED ASSOCIATES, L.L.C., et al., Appellants/Cross-appellees, v. KANSAS CITY ROYALTY COMPANY, L.L.C.; ROBERT E. THOMAS REVOCABLE TRUST; and D.D.H., L.L.C., Appellees/Cross-appellants.

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SYLLABUS BY THE COURT

1. OIL AND GAS—Modification of Lease—Factual Question. Parties to an oil-and-gas lease can modify the terms of their agreement. Whether they have mutually agreed to do so is a factual question. Their agreement may be express or implied from their conduct.

2. CONTRACTS—Waiver of Contract by Party—Question of Fact. Parties to a contract can waive a condition; waiver requires intent and knowledge. In- tent may be inferred from conduct, and knowledge may be actual or constructive. Whether a party has waived a contract term is a question of fact.

3. ESTOPPEL—Equitable Estoppel—Three Factors. Equitable estoppel is a judicial remedy in which a party is prevented from taking a position inconsistent with one it previously took. A party invoking equitable estoppel must prove three things: (1) a party's acts, representations, or silence when it had a duty to speak caused the invoking party to believe that certain facts existed; (2) that the invoking party reasonably relied and acted on that belief; and (3) that the reliance was detrimental to the invoking party.

4. OIL AND GAS—Production under Unitized Gas Leases—Royalties. Un- der Skelly Oil Co. v. Savage, 202 Kan. 239, 447 P.2d 395 (1968), when parties operating under unitized gas leases incidentally produce other liquid hydrocarbons from a gas well, the gas lease may entitle them to royalties from the production of the non-gas hydrocarbons. But when the production of other hydrocarbons is not incidental to the gas production, the proceeds from it are not covered by the gas lease.

5. SAME—Sit to Recover Interest on Oil and Gas Payments—Award of At- torney Fees and Costs. K.S.A. 55-1617 provides that a prevailing party in a case to recover interest on certain oil-and-gas payments "may recover court costs and reasonable attorney fees at the discretion of the court." Under that provision, the award of costs and attorney fees is a discretionary call for the district court, not a mandated award.

Appeal from Comanche District Court; VAN Z. HAMPTON, judge. Opinion filed June 26, 2020. Affirmed in part, reversed in part, and remanded with directions. VOL. 58 COURT OF APPEALS OF KANSAS 307

Thoroughbred Assoc. v. Kansas City Royalty Co.

Jeff Kennedy and Marcia A. Wood, of Martin, Pringle, Oliver, Wallace & Bauer, L.L.P., of Wichita, for appellants/cross-appellees.

Matthew W. Brockman and David A. Elder, of Hartzog Conger Cason, of Okla- homa City, Oklahoma, and William J. Skepnek, of The Skepnek Law Firm, P.A., of Lawrence, for appellees/cross-appellants.

Before LEBEN, P.J., POWELL and SCHROEDER, JJ.

LEBEN, J.: This case is the latest installment in a 17-year fight over revenue from gas leases organized into a single operating unit in Comanche County, Kansas. The fight centers on a simple issue: is a lease owned by the unit's former operator, Thoroughbred Associates, L.L.C. (Thoroughbred), included in the unit? If so, Kansas City Roy- alty Company, L.L.C. (KC Royalty) and the other defendants are entitled to their share of profits from unit gas production. In a prior appeal, the Kansas Supreme Court held that the plain language of the lease precluded its inclusion in the unit if only the lease terms were considered. Thoroughbred Assocs. v. Kansas City Royalty Co., 297 Kan. 1193, 308 P.3d 1238 (2013). But the court remanded the case to see if KC Royalty could show that the lease was unitized (made part of the single operating unit) under several alternative theories. The district court ruled in KC Royalty's favor after a trial, and Thoroughbred filed this appeal challenging various aspects of the district court's conclusion that the parties had included the lease in the unit by modification, waiver, or equitable estoppel. KC Royalty cross-appealed, challenging the district court's decision not to award it attorney fees under K.S.A. 55-1617. We affirm the district court's conclusion that the lease is in the unit, but reverse its decision about the extent of KC Royalty's interest in the unit. We also affirm the district court's denial of attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

Our decades-long unitization saga begins with Thoroughbred president Robert Patton, who in 1997 started acquiring oil-and-gas leases from mineral owners in the Warmwater Prospect near Coldwa- ter, Kansas. Those efforts paid off in December of that year when Thoroughbred successfully drilled the Bird Well, a prolific gas well that produced from the Mississippian rock formation. 308 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co.

To protect the Bird Well from competition, Thoroughbred acquired leases on the nearby property. It executed three leases with the mineral-rights owners of a 120-acre tract (the Tract) next to the Bird Well. After signing those leases, a 1/3 mineral interest in the Tract (or 40 mineral acres) owned by Oxy USA Inc. remained unleased.

The Oxy Lease

In July 1998, Thoroughbred contacted Oxy about selling its 1/3 interest in the Tract. Oxy drafted a lease (the Lease) using its standard form for Kansas wells; the parties signed the Lease on July 21 and later recorded it in the Comanche County deeds office. Three features of the Lease stand out. First, Oxy granted Thor- oughbred the power to unitize the Lease. That meant Thoroughbred could consolidate the Lease with others it owned in the area to form a single, joint operation. See Williams & Meyers, Manual of Oil and Gas Terms, p. 1191 (17th ed. 2018). If unitization occurred, Thor- oughbred would own a working interest in the unit while Oxy and the other lessors would own a royalty interest. A working interest is the lessee's share of production after deducting royalty paid to the lessor; a royalty interest is a lessor's share (usually 1/8) of any oil and gas produced. Mulsow v. Gerber Energy Corp., 237 Kan. 58, 61, 697 P.2d 1269 (1985). But Thoroughbred could include the Lease in a unit only if certain conditions existed. Those conditions do not affect the issues in this appeal. Second, the Lease had a one-year primary term; it would expire in a year unless Thoroughbred had started drilling. If it had, the Lease continued for as long as Thoroughbred produced oil or gas in paying quantities from the Tract. And if Thoroughbred put the Lease in a unit, production from anywhere in the unit (not just the Tract) would extend the Lease because unit production was treated as if it had occurred on the Tract. Under what's called a Pugh clause, however, production from unitized lands would maintain the Lease "only to depths from the surface down to the deepest producing interval." In other words, the Lease would expire below the deepest depth drilled for gas production anywhere in the unit during the primary term. Third, the Lease granted Oxy a 3/16 royalty on production from the Tract. Oxy would receive that same royalty on unit production based on its proportionate interest in the unit. VOL. 58 COURT OF APPEALS OF KANSAS 309

Thoroughbred Assoc. v. Kansas City Royalty Co.

The Rietzke Unit

In fall 1998, production in the Warmwater Prospect heated up. In August, Thoroughbred drilled the Rietzke Well about 1,000 feet south of the Bird Well. In September, Thoroughbred recorded a Dec- laration of Unitization in the county deed office stating its intent to form a 640-acre unit (the Rietzke Unit) comprised of the "gas rights" in several listed leases. Thoroughbred also recorded an Affidavit of Commencement of Operations, which said that the drilling of the Rietzke Well had extended those leases beyond their primary terms. Both documents listed the Lease and the Tract as in the Unit. In October, Thoroughbred prepared a document for the Unit called the Title Opinion. Title opinions state the extent of each lessor's mineral interest in a unit. Oil-and-gas operators like Thorough- bred provide these documents to purchasers so they know who to pay and in what amounts. Williams & Meyers, Manual of Oil and Gas Terms, p. 1160. The Title Opinion listed Oxy's royalty interest as in the Unit, and it described the Declaration as having "unitized the [listed] leases." Thoroughbred drilled five successful wells in the Unit, none of which were located on the Tract covered by the Lease. These wells produced oil and gas from different rock formations found at different depths beneath Earth's surface. From shallowest to deepest, these formations were the Lansing, Kansas City, Marmaton, Altamont, Mississippian, and Viola. Some wells produced from one formation, while others produced from several:

Formations & Well Drill Date Substances Mississippian (gas) Rietzke August 1998 Altamont (gas) Lansing-KC (gas) Jamie August 1999 Mississippian (gas) Viola (oil, gas) Husker January 2001 Mississippian (gas) Viola (oil, gas) Blackshirt September 2001 Altamont (gas) Viola (oil, gas) Tunnelwalk December 2001 Mississippian (gas) 310 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co.

Thoroughbred also drilled two dry holes in the Unit that didn't produce oil or gas in paying quantities: the Big Red Well, drilled in Octo- ber 2001, and the Craig Bohl Well, drilled a month later.

The sale to KC Royalty

For several months after Thoroughbred formed the Unit, it sent Oxy drilling information, production reports, and royalty payments for the Rietzke Well. Oxy also signed a division order for that well. Thor- oughbred had the lessors sign an order for each new well that stated their agreement to receive the share of production listed in the Title Opinion. Thoroughbred then provided the orders to buyers. In June 1999, Oxy sold its interest in the Lease to KC Royalty and another entity whose interest Robert E. Thomas Revocable Trust and D.D.H., L.L.C. later acquired. For simplicity, we'll refer to these three entities collectively as KC Royalty. In a letter notifying Thoroughbred of the sale, KC Royalty ratified any division orders Oxy had signed and asked Thoroughbred to start sending royalty payments to KC Royalty. Thoroughbred sent KC Royalty its first royalty check on June 30, 1999, for May production from the Rietzke Well. And in November, KC Royalty signed a division order from Thoroughbred for the Jamie Well that listed KC Royalty's royalty interest in the Unit. KC Royalty continued to receive royalty payments for two and a half years; Thor- oughbred cut a final check to KC Royalty in December 2001.

The business relationship sours

Early on in their relationship, KC Royalty's managing partner, Robert Blair, sent Patton several letters about whether the Bird Well was draining the Rietzke Well. Drainage occurs when a deeper producing well reduces pressure in a reservoir, causing the oil or gas to migrate. Williams & Meyers, Manual of Oil and Gas Terms, p. 307. The Bird Well, located just outside the Unit and about 1,000 feet north of the Rietzke Well, was producing gas from the Mississippian. That formation is below the Altamont, where the Rietzke Well produced at the time. Believing that the Bird Well was draining the Mississippian, Blair asked Patton to VOL. 58 COURT OF APPEALS OF KANSAS 311

Thoroughbred Assoc. v. Kansas City Royalty Co. drill an offset well in the Unit that would produce from that formation. Patton denied that drainage was occurring but was open to drilling an offset well. KC Royalty could have drilled its own offset well without Thoroughbred's permission if the Lease was not in the Unit. Another dispute arose in October 2001, this time over whether KC Royalty would participate in the Big Red Well that Thoroughbred planned to drill on the Tract to test Viola production. In a letter about the issue, Blair disputed Patton's recent assertion in a phone call that the Lease was still effective in the Mis- sissippian, which is above the Viola. Patton said that if KC Roy- alty participated in the Big Red Well, it would have to pay for its proportionate share of drilling costs in the Viola but not for any costs above the Viola. They didn't reach an agreement, so Thor- oughbred drilled the Big Red Well without KC Royalty's partici- pation. On November 6, 2001, Thoroughbred filed two intent-to-drill notices for Viola wells on the Tract. Thoroughbred never drilled the wells, but filing the notices prevented anyone else from drilling at the proposed sites for one year unless Thoroughbred consented. One of the notices covered KC Royalty's preferred loca- tion for a new well it planned to drill on the Tract and near the Bird Well. Instead, KC Royalty had to drill further away from the Bird Well and could only do so after Thoroughbred agreed. Blair thought Thoroughbred filed the notices to "buy time" so it could drain the Mississippian and Viola without competition. KC Roy- alty drilled the well in 2002; as of 2017, production revenue had yet to exceed drilling costs. In a November 28, 2001 letter to Blair, Patton clarified Thor- oughbred's stance on the Lease's status. Blair had asked why Thor- oughbred didn't ask KC Royalty to participate in the Craig Bohl Well, a Viola test well. Patton said that Thoroughbred had not proposed any of the Unit's Viola wells, other than the Big Red Well drilled on the Tract, because the Lease's Viola rights had expired and were "no longer included in the [U]nit." The only rights "still included in the [U]nit," he said, were those that were still valid under the Lease. Blair responded that the Lease had not expired in Viola. 312 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co.

In a letter to Patton on New Year's Day, KC Royalty's attorney repeated that claim and demanded that Thoroughbred pay any unpaid royalties from Viola-producing wells. Thoroughbred's attorney, John Pike, responded on January 10, stating that there had been no Tract production or "unitized gas production" in the Viola. Although some wells had produced in the Viola, they produced oil and associated casinghead gas in which KC Royalty didn't own an interest. On March 28, Pike sent another letter that brought up the unitization conditions in the Lease that we mentioned earlier. To understand that letter, we need to briefly jump back a few months. Back in July or August 2001, Patton had asked an investor named Steve Dillard to review the Lease. When Patton did so, he told Dillard that KC Royalty had been requesting well data and complaining about Thoroughbred's operations; Dillard thought that it was odd for Patton to share this information with him. Then in August or September, Pat- ton again asked Dillard to review the Lease. This time, Dillard discovered the conditions that only allowed unitization if certain conditions existed. A few days later, Dillard, Pike, and Patton met to discuss the issue. They concluded that because the conditions didn't exist when Thoroughbred had formed the Unit by filing the Declaration, the Lease should not have been included in the Unit. Fast forward to Pike's March 28 letter, which asserted that the conditions precluded the Lease from ever being included in the Unit. Un- less KC Royalty agreed to waive the conditions and maintain current unitization in the Altamont, Pike said, Thoroughbred would drop the Lease from the Unit and request repayment of royalties. If KC Royalty signed an amended unit declaration, he said that Thoroughbred would release the Lease for all other formations. Rather than respond to Pike's letter, KC Royalty filed several contract claims against Thoroughbred in federal court on July 1, 2002. A federal judge dismissed that case a few years later because KC Royalty failed to join indispensable parties. Kansas City Royalty Co., L.L.C. v. Thoroughbred Assocs., L.L.C., 215 F.R.D. 628, 633-34, 637 (D. Kan. 2003).

The first appeal

In September 2002, Thoroughbred filed this case against KC Royalty in state court in Comanche County. Thoroughbred asked VOL. 58 COURT OF APPEALS OF KANSAS 313

Thoroughbred Assoc. v. Kansas City Royalty Co. the district court to declare that the Lease conditions precluded unitization, amend the Declaration to delete the Lease from the list of unitized leases, and require KC Royalty to repay all royalties it received for unit production. In response, KC Royalty argued that Thoroughbred's claims were barred by waiver, estoppel, and rati- fication. KC Royalty also filed two counterclaims of note: one for drainage and one for breach of the Lease and the Declaration for not paying KC Royalty its share of royalty form unit production. Both parties moved for summary judgment in 2007. Thor- oughbred argued that the conditions in the Lease precluded its inclusion in the Unit because they were not met when the Declara- tion was filed. KC Royalty countered that the conditions were ambiguous, and that the parties had agreed to allow unitization after filing the Declaration. The district court granted KC Royalty's motion and denied Thoroughbred's. Holding that the Lease remained in effect from the surface down to the base of the Marmaton-Altamont interval (the dividing line between the formations), the district court split KC Royalty's interest above and below that line. Above the interval, where the Lease remained effective, KC Royalty had a 0.01171875 royalty interest in the Unit's production (40 mineral acres out of the 640-acre unit, multiplied by a 3/16 royalty). Below the interval, where the Lease had expired, the court assigned KC Royalty a 0.0625 working interest in the Unit (40 out of 640 acres, times an 8/8 working interest). Based on these figures, the district court entered a $597,420.95 judgment for KC Royalty that included prejudgment interest and attorney fees. After a bench trial on KC Royalty's drainage counterclaim a year later, both parties appealed the summary-judgment decision to our court. Thoroughbred argued three relevant points: (1) the conditions in the Lease precluded unitization; (2) the district court erred in assigning KC Royalty a working interest in the Unit below the Marmaton-Altamont interval; and (3) if the Lease was in the Unit, KC Royalty's interest is limited to gas production and doesn't include oil production as the district court had found. Among other things, KC Royalty appealed the district court's decision on attorney fees. Thoroughbred Assocs. v. Kansas City Roy- alty Co., 45 Kan. App. 2d 312, 315-16, 248 P.3d 758 (2011). 314 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co.

Our court affirmed the district court on every issue. Because Oxy and Thoroughbred had intended to unitize the Lease but were mutually mistaken about the conditions, we reformed the Lease to include it in the Unit. 45 Kan. App. 2d at 324-25. We also affirmed the district court's finding that KC Royalty had a 0.0625 working interest in the Unit below the Marmaton-Altamont interval. That was the case, we explained, because the Lease had expired below that level when no production occurred during the primary term. So KC Royalty's royalty interest in the lower formations became an unleased working interest. 45 Kan. App. 2d at 325-26. And we affirmed the district court's finding that KC Royalty's unit interest included all production, not just gas. 45 Kan. App. 2d at 326-27. The Declaration unitized the "gas rights" in the listed leases, which under Skelly Oil Co. v. Savage, 202 Kan. 239, 249, 447 P.2d 395 (1968), included liquid hydrocarbons produced as "incidental byproducts" of the gas. 45 Kan. App. 2d at 326-27. We held that KC Royalty's interest extended to all production, not just gas. 45 Kan. App. 2d at 326-27. The Kansas Supreme Court agreed to review our decision on several issues, including whether the Lease's conditions precluded unitization. The court held that the Lease unambiguously precluded unitization unless the conditions occurred. Because they didn't occur before the Declaration was filed, Thoroughbred had no authority under the Lease itself to include the Lease in the Unit. Thoroughbred, 297 Kan. at 1207-09. Next, the Supreme Court considered KC Royalty's alternative theories for unitizing the Lease despite its clear language. For example, KC Royalty had argued in the district court that the parties modified or waived the conditions. The Supreme Court couldn't tell from the record whether KC Royalty could succeed on these alternative unitization theories, so it remanded the case for the district court to consider them. 297 Kan. at 1209-11. To guide the district court's consideration, the Supreme Court commented on issues that would arise if an alternative theory supported unitization. It noted that Thoroughbred had not sought review of the panel's finding that KC Royalty had a working interest in the Unit below the Marmaton-Altamont interval, so that finding VOL. 58 COURT OF APPEALS OF KANSAS 315

Thoroughbred Assoc. v. Kansas City Royalty Co. would become law of the case if the Lease was in the Unit. 297 Kan. at 1211-12. The Kansas Supreme Court also commented on whether KC Royalty's interest in the Unit would include all production or only gas. Unable to discern from the record whether the Skelly case applied, the court reversed our finding that KC Royalty's interest included all non-gas production. Thoroughbred, 297 Kan. at 1212- 13. Then it gave three questions for the district court to answer on remand if the issue arose: (1) did the Declaration create a gas unit; (2) if so, how did the parties define the "gas rights" included in the Unit; and (3) did the oil produced in the Unit meet that definition? 297 Kan. at 1213. To recap, the Supreme Court found that the conditions in the Lease precluded unitization but remanded for the district court to consider KC Royalty's alternative arguments for including the Lease in the Unit. 297 Kan. at 1214-15.

The second appeal

On remand, the district court denied both parties' summary- judgment motions on the alternative unitization theories. In doing so, the court found that KC Royalty's mutual-mistake defense was barred by the five-year statute of limitations. The rest of the alternative claims were set for trial. At trial, the court heard testimony from Patton, Dillard, Blair, and a lessor in the Unit. The district court decided all the alternative claims in KC Royalty's favor. The court found that the parties had agreed to unitize the Lease after the Declaration had been filed, that KC Royalty had waived the conditions, and that Thoroughbred was equitably estopped from enforcing them. Because the Lease was in the Unit, KC Royalty had a 0.01171875 royalty interest above the Marmaton-Altamont interval and a 0.0625 working interest below that level. KC Royalty's interest, the court explained, extended to all liquid hydrocarbons produced in the Unit. Under Skelly, the court determined that the "gas rights" unitized by the Declaration covered certain liquid substances produced as byproducts of the gas. Because all liquids produced in the Unit were incidental byproducts of the gas, the court concluded that KC Roy- alty's interest included all unit production. The court entered a $739,389.85 judgment for KC Royalty. 316 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co.

Thoroughbred appealed, and KC Royalty cross-appealed the district court's decision to deny KC Royalty attorney fees as the prevailing party under K.S.A. 55-1617.

ANALYSIS

Thoroughbred raises three issues on appeal. The first involves KC Royalty's three alternative theories for including the Lease in the Unit: modification, waiver, and equitable estoppel. The district court found for KC Royalty on each, and Thoroughbred says the evidence didn't support those findings. Next, Thoroughbred challenges the finding that KC Royalty has a working interest below the Marmaton-Altamont interval. Last, Thoroughbred appeals the district court's finding that, under Skelly, KC Royalty has an interest in all liquid hydrocarbons produced in the Unit. After addressing these issues, we turn to KC Royalty's cross-appeal on attorney fees.

I. Thoroughbred Has Not Shown Error in the District Court's Conclusion that the Parties Included the Lease in the Unit by Modification, Waiver, or Estoppel.

Thoroughbred argues that the district court erred in finding that the parties included the Lease in the Unit by modification, waiver, or equitable estoppel. Success on that argument is no easy task: Thoroughbred must disprove all three theories to avoid the Lease's inclusion in the Unit. To know whether Thoroughbred can do so, we need to know what standard of review applies. Thoroughbred invokes two different review standards in its brief. The first applies when we review the district court's findings at a bench trial. Under that standard, we exercise unlimited review of the district court's legal conclusions and review its factual findings for substantial evidence. Substantial evidence is legal and relevant evidence that a reasonable person might accept as supporting a conclusion. Gannon v. State, 298 Kan. 1107, 1175-76, 319 P.3d 1196 (2014). The second standard Thoroughbred invokes applies when we review a ruling on a summary-judgment motion. The problem with applying that standard, however, is that a trial occurred. If a case goes to trial after both parties' summary-judgment motions VOL. 58 COURT OF APPEALS OF KANSAS 317

Thoroughbred Assoc. v. Kansas City Royalty Co. were denied, a party seeking to appeal that decision must preserve its objection. It can do so by following Thoroughbred's lead: in- corporate the summary-judgment arguments into a posttrial motion for judgment as a matter of law. If the district court denies that motion, as the district court did here, that denial can be appealed rather than the earlier summary-judgment motion. Ortiz v. Jordan, 562 U.S. 180, 184, 131 S. Ct. 884, 178 L. Ed. 2d 703 (2011); Evergreen Recycle v. Indiana Lumbermens Mut. Ins. Co., 51 Kan. App. 2d 459, 490, 350 P.3d 1091 (2015). Because Thor- oughbred has not appealed the denial of its posttrial motion, the bench-trial standard applies. Having established the correct standard of review, we now address the evidence supporting each of KC Royalty's alternative unitization theories.

Modification

Parties to an oil-and-gas lease, like parties to any contract, can modify the terms of their agreement. Coulter v. Anadarko Petro- leum Corp., 296 Kan. 336, Syl. ¶ 10, 292 P.3d 289 (2013). But one party cannot unilaterally do so; both must agree to the change. Their agreement may be express or implied from their conduct. Fast v. Kahan, 206 Kan. 682, Syl. ¶ 3, 481 P.2d 958 (1971). In any case, whether they have modified a contract term is a factual question. Thoroughbred, 297 Kan. 1193, Syl. ¶ 7. The district court found that the parties agreed to modify the Lease and include it in the Unit after the Declaration was filed. Thoroughbred says that finding wasn't supported by facts or law. We disagree. After reviewing the substantial evidence that supported the district court's modification finding, we assess Thor- oughbred's three principal objections to that evidence: (1) that it showed mutual mistake, not modification; (2) that KC Royalty's refusal to waive the conditions in March 2002 negates a modification finding; and (3) that the district court improperly relied on evidence of intent during the Lease negotiations. We address other arguments as they arise when discussing specific modification evidence. Let's start with Thoroughbred. It expressed an intent to unitize in three documents filed after the parties signed the Lease: (1) the Declaration of Unitization, (2) the Affidavit of Commencement of Operations, and (3) the Title Opinion. 318 COURT OF APPEALS OF KANSAS VOL. 58

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The Declaration said that Thoroughbred was forming a unit made up of the leases and land listed in that document. The list included the Lease despite the unmet conditions that otherwise precluded unitization. Citing a dictionary definition, Thorough- bred contends that the Declaration can't support modification because it's not an agreement; a declaration is a "formal statement, proclamation, or announcement." Black's Law Dictionary 512 (11th ed. 2019). But what the Declaration formally stated, pro- claimed, or announced was Thoroughbred's "purpose to unitize" the listed leases. So even if the Declaration isn't an agreement, it is evidence of Thoroughbred's intent to include the Lease in the Unit. So is the Affidavit, which Thoroughbred filed to comply with K.S.A. 55-205. That statute requires lease owners to notify the public when an event occurs that extends a lease beyond its primary term. The Affidavit said that such an event had occurred— the drilling of the Rietzke Well—for all the leases listed in the document, including the Lease. Remember that the Rietzke Well was in the Unit but not on the Tract. So the only way that drilling that well would trigger K.S.A. 55-205's filing requirement would be if the Lease had been in the Unit. Thus, the Affidavit was more evidence of Thoroughbred's belief that unitization had occurred. The Title Opinion was even more evidence. As we explained earlier, a title opinion is a document the lessee provides to buyers that states the extent of each lessor's mineral interest; it lets buyers know who to pay and in what amounts. Williams & Meyers, Man- ual of Oil and Gas Terms, p.1160. Thoroughbred's Title Opinion listed Oxy's interest under the Lease as in the Unit, just as the Af- fidavit and Declaration had. All three documents provide more than enough evidence of Thoroughbred's intent to unitize the Lease. Of course, Thoroughbred could not unilaterally do so. It takes two to modify, so Oxy or KC Royalty must have also intended to include the Lease in the Unit. Substantial evidence supported a finding that both did. Oxy first expressed its intent to unitize by not objecting to the documents Thoroughbred filed that included the Lease in the Unit. Thoroughbred's actions conflicted with the Lease's terms, which VOL. 58 COURT OF APPEALS OF KANSAS 319

Thoroughbred Assoc. v. Kansas City Royalty Co. precluded unitization unless the conditions existed. Oxy's silence in response to performance that deviated from the Lease terms was some evidence of its intent to modify the Lease and allow unitization. We recognize, however, that silence alone is insufficient; there must also be "other circumstances tending to show an intention to . . . derogate from" the Lease's terms. Owens v. City of Bartlett, 215 Kan. 840, Syl. ¶¶ 5-6, 528 P.2d 1235 (1974). But Oxy did much more than remain silent about its interest being listed as unitized. Oxy expressed its intent again when it signed a division order for the Rietzke Well. Thoroughbred sent the Unit lessors a division order for each new well to confirm their interest. As Dillard testified at trial, signing an order meant that the lessor "agree[d] to accept that amount of revenue." By signing the Rietzke Well order, Oxy agreed to accept payment for Unit production in the amount listed. Oxy did so despite the Lease language that precluded unitization. Thoroughbred would not have sent that order unless it thought the Lease was in the Unit, and Oxy would not have signed it unless it thought the same. KC Royalty signed division orders too. KC Royalty ratified the Rietzke Well order after buying the Lease from Oxy, an act Blair viewed as confirming that the Lease was in the Unit. A few months later, KC Royalty signed an order for the Jamie Well that likewise listed the Lease's interest as unitized; the order said that KC Royalty "certif[ied] and warrant[ed] to Thoroughbred . . . that [it was] the legal owner[] of the interest" in the Unit listed in the order. As Dillard put it at trial, Kansas was "acknowledg[ing] what [its] interest was in the unit." Like the Rietzke Well, the Jamie Well wasn't on the Tract, so there would have been no reason for Thoroughbred to send or for KC Royalty to sign the order unless both parties understood that the Lease was in the Unit. Any doubt about Oxy or KC Royalty's intent was resolved when both started accepting royalty for unit production. Although never deciding the issue explicitly, our Supreme Court has noted the possibility that accepting royalty payments could independently establish a unitization agreement. See Thoroughbred, 297 Kan. at 1209-10; Klippel v. Beinar, 222 Kan. 681, 686, 567 P.2d 867 (1977). Courts from other states have reached that conclusion. E.g., Beck v. Wight, 116 Mont. 345, 151 P.2d 1014, 1015- 320 COURT OF APPEALS OF KANSAS VOL. 58

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16 (1944); Westbrook v. Atlantic Richfield Company, 502 S.W.2d 551, 558 (Tex. 1973). Following their lead, we conclude that Oxy, and later KC Royalty, agreed to unitization by accepting royalty payments. The only difference between the cases just cited and this one is that here the lessee is the party seeking to avoid unitization. Thorough- bred offers no reason why that distinction matters. The important point is that Thoroughbred sent royalty checks for Unit production for 30 months, first to Oxy and then to KC Royalty. None of those were for Tract production; each was for Unit production from non- Tract wells. By sending and accepting royalty payments for more than two years, Thoroughbred and KC Royalty mutually assented to include the Lease in the Unit. Against the abundance of evidence supporting modification, Thoroughbred offers three responses. First, Thoroughbred says these documents really show mutual mistake, not modification. That could be significant because KC Royalty failed to raise mutual mistake—an affirmative defense that must be timely raised in the answer—when it answered the petition. Thoroughbred argues that the parties didn't realize the conditions existed, not that they intended to unitize the Lease despite the conditions. If that were true, contracting parties could never modify a term without subjective knowledge of its existence. Yet we know that's not the case because Kansas courts recognize implied modification, a doctrine rooted in the objective intent conveyed by the parties' actions. See Fast, 206 Kan. 682, Syl. ¶ 3. Indeed, contractual intent is always measured by an objective standard. O'Neill v. Herrington, 49 Kan. App. 2d 896, Syl. ¶¶ 8-10, 317 P.3d 139 (2014). So even if the parties were unaware that the conditions existed, they could still manifest their intent to unitize the Lease by objective conduct conveying that intent. The substantial evidence discussed above shows that's exactly what they did. In a given case, a set of facts might show both mutual mistake and modification. Here, the district court found modification, and there's ample evidence to support that conclusion. Second, Thoroughbred argues that KC Royalty couldn't have agreed to modify the Lease because it rejected a request in March 2002 letter to waive the conditions. But by then, the parties had VOL. 58 COURT OF APPEALS OF KANSAS 321

Thoroughbred Assoc. v. Kansas City Royalty Co. already modified the Lease. They'd been paying and accepting royalties for 30 months; Thoroughbred had filed the Declaration, the Affi- davit, and the Title Opinion listing the Lease as in the Unit; and Oxy and KC Royalty had signed division orders agreeing to accept their interest in the Unit for royalty payments. Because all the actions expressing the parties' mutual assent to include the Lease in the Unit occurred before Thoroughbred's waiver request, KC Royalty's response to that request doesn't negate a finding of modification. Last, Thoroughbred objects to the district court's reliance on evidence about Thoroughbred and Oxy's intent to unitize the Lease when they negotiated the document. That pre-contract formation evidence can't support modification, Thoroughbred asserts, because modification is a later agreement shown by the parties' intent after they formed the original contract. See Coonrod & Walz Constr. Co., Inc. v. Motel Enterprises, Inc., et al., 217 Kan. 63, Syl. ¶ 1, 535 P.2d 971 (1975). While pre-Lease statements can't independently show modification, the district court properly considered them because they helped explain Thoroughbred's conduct after recording the Lease. And as explained at length above, the district court cited plenty of other evidence of modification besides pre-Lease statements. So even if the district court had improperly considered statements of Thoroughbred and Ox- y's intent during negotiations, we would still find no error in the district court's conclusion that the Lease was modified. In short, the parties modified the Lease to include it in the Unit. Oxy and Thoroughbred's conduct after signing the Lease shows a consistent intent to unitize, which continued after KC Royalty acquired the Lease. We affirm the district court's modification finding because it was supported by substantial evidence. As we noted earlier, that finding alone means that the Lease is in the Unit and KC Royalty is entitled to some interest in the Unit. But even if there were some legal problem with the district court's modification decision, KC Royalty could still prevail on waiver or equitable estoppel. So we will proceed to examine those bases for including the Lease in the Unit.

Waiver

Unlike modification, which requires mutual assent, waiver can occur unilaterally. 13 Williston on Contracts § 39:24 (4th ed.). To waive a condition, two elements must exist: intent and 322 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co. knowledge. Intent may be inferred from the waiving party's conduct, and knowledge may be actual or constructive. Flott v. Wenger Mixer Manufacturing Co., 189 Kan. 80, 90, 367 P.2d 44 (1961). As with modification, whether a party has waived a contract term is a question of fact. Thoroughbred, 297 Kan. 1193, Syl. ¶ 7. Our waiver analysis centers on Oxy and KC Royalty because, as the district court found and Thoroughbred doesn't contest on appeal, the conditions benefited those parties by favoring production on the Tract over unitization. So Oxy and KC Royalty had the unilateral power to waive the conditions and allow Thoroughbred to include the Lease in the Unit. Thoroughbred challenges the district court's findings on both intent and knowledge. On both elements, Thoroughbred's arguments (and our response to them) will sound familiar because they are much the same as the ones Thoroughbred made on modification. On intent, Thoroughbred says KC Royalty couldn't have waived the conditions because it rejected a request from Pike in March 2002 to do just that. But Blair testified that KC Royalty didn't agree to Pike's request because KC Royalty considered the Lease to be in the Unit. If KC Royalty had waived the conditions by March 2002, then it doesn't matter that KC Royalty rejected Thoroughbred's offer to reinstate them (just as it didn't affect the modification analysis earlier). The question, then, is whether substantial evidence supports a finding that KC Royalty waived the conditions before March 2002. The parties address that question as the district court did, with a slew of implied-waiver cases. Boiled down, those cases stand for a simple proposition: one can infer a party's intent to waive a contractual right from conduct inconsistent with an intent to exercise the right. E.g., Owens, 215 Kan. at 844-45 (concluding that a city waived a requirement that it approve a contractor's extra work in writing by consistently ordering extra work orally and paying for it). Consider Kenoyer v. Magnolia Petroleum Co., 173 Kan. 183, 245 P.2d 176 (1952). There, a lessor claimed that a lease covering two tracts allowed unitization only if the lessee included both VOL. 58 COURT OF APPEALS OF KANSAS 323

Thoroughbred Assoc. v. Kansas City Royalty Co. tracts in the same unit. Even if the same-unit condition existed, our Supreme Court found that the lessor had waived it—and "any right he may have had to compel the inclusion of both tracts in one unit"—by executing a written agreement with the lessor that unitized only one tract. 173 Kan. at 187. By acting inconsistently with an intent to exercise the condition, the lessor had waived it. So too here. All the evidence that supports Oxy and KC Roy- alty's intent to modify the Lease also supports their intent to waive the conditions. After Thoroughbred filed the Declaration and Af- fidavit listing the Lease in the Unit, Oxy accepted royalty payments and received production information for the Rietzke Well. Oxy would not have taken those actions had it intended to enforce the conditions, which prioritized Tract production over unitization, because the Rietzke Well was not on the Tract. Nor would it have signed a division order for that well that confirmed its interest in the Unit. And KC Royalty would not have ratified that order, signed another order for the Jamie Well, or continued accepting royalty payments from unit production for 30 months. All these actions occurred before Pike requested a waiver in March 2002; none of these actions would make sense if Oxy or KC Royalty had intended to enforce the conditions. We have no trouble concluding that substantial evidence supported the intent element of waiver. On the knowledge element, Thoroughbred makes the same point as it did on modification: KC Royalty couldn't have waived the conditions because it didn't know they existed. But KC Roy- alty could waive the conditions if it had actual or constructive knowledge of them. See Flott, 189 Kan. at 90. KC Royalty had constructive knowledge of the conditions: as a party to the Lease, it was charged with knowledge of its terms. Once it bought the Lease, KC Royalty became bound by the Lease's terms even if it didn't read or understand them. See Albers v. Nelson, 248 Kan. 575, Syl. ¶¶ 3-4, 809 P.2d 1194 (1991). This general rule doesn't apply, of course, if the parties entered the contract by mutual mistake. 248 Kan. 575, Syl. ¶ 4. But the potential mistake here was in the Lease's performance, not in its formation. So the general rule applies here: Oxy had a duty to read the Lease and understand its terms, a duty that KC Royalty assumed when it acquired the Lease. Because KC Royalty had 324 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co. constructive knowledge of the conditions, the second element of waiver is also met. In sum, substantial evidence supported the district court's conclusion that Oxy and KC Royalty waived the unitization conditions. Their conduct consistently showed an intent to include the Lease in the Unit and to not enforce the conditions. And their duty to read the Lease meant that they had constructive knowledge that the conditions existed. So even if modification could not support unitization, waiver would. Moreover, even if Thoroughbred could defeat both modification and waiver, it would still have one more unitization theory to disprove—equitable estoppel.

Equitable Estoppel

Equitable estoppel is a judicial remedy whose application turns on the facts of each case. Steckline Communications, Inc. v. Journal Broadcast Group of KS, Inc., 305 Kan. 761, Syl. ¶ 4, 388 P.3d 84 (2017). In deciding whether equitable estoppel applies, one must consider the policy it advances: preventing the unconscionable result that arises when a person "'maintain[s] a position inconsistent with one in which he or she accepted a benefit.'" 305 Kan. at 770. The party invoking equitable estoppel must prove three elements: (1) another party's acts, representations, or silence when it had a duty to speak caused the other party to believe that certain facts existed; (2) that other party reasonably relied and acted on that belief; and (3) the reliance was detrimental. 305 Kan. 761, Syl. ¶ 3; see Doe v. Popravak, 55 Kan. App. 2d 1, Syl. ¶ 10, 421 P.3d 760 (2017). Before turning to whether KC Royalty proved those elements, we must analyze Thoroughbred's contention that only lessees (not lessors) may claim that a lease was unitized by estoppel. It's true that in both cases cited by the Kansas Supreme Court in the prior appeal, a lessee invoked equitable estoppel against a lessor who denied that unitization had occurred. See Thoroughbred, 297 Kan. at 1210. But the fact that no unitization case has yet applied equitable estoppel against a lessee is no reason to not apply it here— the principles behind equitable estoppel either apply or they don't: a lessor to any other type of lease would have no problem invoking VOL. 58 COURT OF APPEALS OF KANSAS 325

Thoroughbred Assoc. v. Kansas City Royalty Co. equitable estoppel against a lessee. We find no reason why an oil- and-gas lease should be treated differently. Besides, Thoroughbred's per se rule against lessor unitization- by-estoppel claims advances a formulaic approach to equitable estoppel that our Supreme Court has cautioned against. Steckline, 305 Kan. at 770. Adopting such a rule would undermine the flex- ible, case-by-case approach that's "'a hallmark of the doctrine.'" 305 Kan. at 770. If a lessee benefits from claiming that a lease was unitized but later reneges on that claim, then a lessor may raise the same argument that the lessee could raise if the roles were reversed—that letting the other party maintain its inconsistent positions would be unconscionable. We next consider whether substantial evidence supported the elements of equitable estoppel here. Proof of the first element required a showing that Thoroughbred's acts, representations, or silence under a duty to speak induced KC Royalty to believe that the Lease was in the Unit. 305 Kan. 761, Syl. ¶ 3. Thoroughbred maintains that no evidence shows that it ever represented to Oxy or KC Royalty that the Lease was in the Unit. Instead, Thoroughbred says it acted in good faith to remove KC Royalty once it discovered the conditions. Keeping an improperly unitized lease in the Unit, Thoroughbred explains, would have violated its duty to maximize the profit of the other lessors. See Short v. Cline, 234 Kan. 670, 678, 676 P.2d 76 (1984). By acting in good faith to fulfill this duty, Thoroughbred contends that it couldn't have made misrepresentations to KC Royalty. Even if such a duty exists, no evidence supports the claim that Thoroughbred was acting to fulfill it. The undisputed evidence at trial was that Thoroughbred concluded that the conditions precluded unitization in August or September 2001, but it didn't inform KC Royalty of that conclusion until March 28, 2002. During that six-month delay, Thoroughbred kept sending KC Royalty payments for unit production and sending letters stating that the Lease was still active down to the Mississippian (which would only be the case if the Lease had been unitized). No Tract production occurred within the Lease's primary term, so the only way that statement could be true was if Thoroughbred thought that unit production had extended the Lease. These actions conflicted with the good-faith-operator duty Thoroughbred claims it exercised. 326 COURT OF APPEALS OF KANSAS VOL. 58

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Many other actions also supported the district court's findings on the first estoppel element. By now, we sound like a broken record in repeating them: Thoroughbred recorded documents listing the Lease as in the Unit, sent division orders for unit wells that listed the Lease's interest, and paid KC Royalty on unit production for 30 months. All of that presents a classic case in support of the first element of equitable estoppel. After representing that the Lease was in the Unit for over three years, Thoroughbred claimed that the Unit never included the Lease because of the unmet conditions. Flip-flops like that are precisely the kind of inconsistency that equitable estoppel protects against. See Steckline, 305 Kan. at 770. The second element is reasonable reliance. Thoroughbred says KC Royalty cannot show it because Oxy drafted the Lease. Put another way, Thoroughbred contends that KC Royalty has shown only that it relied on Oxy's representations that the Lease was unitized, not Thoroughbred's. That misstates KC Royalty's estoppel claim, which is based on Thoroughbred's actions. During sale negotiations, Oxy provided KC Royalty with documents from Thoroughbred about the Unit's operations, including a division order and production information. Blair testified that these materials informed KC Royalty's belief that the Lease was in the Unit and its decision to buy the Lease. Oxy may have been the one relaying that information to KC Royalty, but the source was Thoroughbred. And even if Thoroughbred's pre-sale representations didn't support reliance, its post-sale representations do. Within a month of the sale, Thoroughbred sent KC Royalty its first of 30 royalty checks for unit production. A short time later, Thoroughbred sent a division order for the Jamie Well that included KC Royalty's interest in the Unit. Those post-sale representations independently establish reliance. We note that Thoroughbred's reply brief also disputed whether KC Royalty's reliance was detrimental (the third element). Because Thor- oughbred raised that argument for the first time in a reply brief, we need not consider it. Scribner v. U.S.D. No. 492, 308 Kan. 254, 266, 419 P.3d 1149 (2018); Supreme Court Rule 6.05 (2020 Kan. S. Ct. R. 36). VOL. 58 COURT OF APPEALS OF KANSAS 327

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But even if we do, the argument would fail because substantial evidence supported a detriment finding. By claiming that unit production had extended the Lease, Thoroughbred prevented KC Royalty's royalty interest from expiring and reverting to a working interest. Had that occurred, KC Royalty would have had exclusive rights to develop its interest in the Tract. See Reynolds-Rexwinkle Oil, Inc. v. Petex, Inc., 268 Kan. 840, 846, 1 P.3d 909 (2000). Not so if the Lease was still in place, in which case KC Royalty still would need Thoroughbred's permission to drill an offset well. In- deed, Blair testified that KC Royalty would have immediately drilled 990 feet from the Bird Well had it known that Thorough- bred believed that the conditions precluded unitization. That financial loss from not drilling a competing well supported the detriment finding. In sum, we find no error in the district court's conclusion that modification, waiver, and estoppel all applied so as to include the Lease in the Unit. That conclusion makes it unnecessary to consider one issue Thoroughbred raises on appeal. That issue relates to the law of the case rule, which bars a party from relitigating an issue that a court already decided in earlier stages of the same proceeding. State v. Parry, 305 Kan. 1189, Syl. ¶ 1, 390 P.3d 879 (2017). On remand, the district court said that it was law of the case that KC Royalty had a 0.0625 working interest in the Unit below the Marmaton- Altamont interval. In the prior appeal, Thoroughbred didn't appeal that issue to the Kansas Supreme Court. In this appeal, Thorough- bred argued that the working-interest finding would not be law of the case if the Lease had never been in the Unit. As we just explained, substantial evidence shows that it was. So the district court's prior finding is law of the case.

II. The District Court Erred When It Gave KC Royalty an Interest Arising from Its Gas Lease to Oil Produced from the Viola For- mation.

Because the Lease is in the Unit, we must now decide the extent of KC Royalty's interest in the Unit. Doing so requires us to review the district court's finding that, under Skelly, KC Royalty has an interest in all liquid hydrocarbons produced in the Unit. To better understand this argument, let's examine Skelly. 328 COURT OF APPEALS OF KANSAS VOL. 58

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In Skelly, a lease provision authorized unitization of "gas rights." 202 Kan. at 240. But that term was undefined other than an exclusion for casinghead gas (gas produced from an oil well). The parties disputed whether the undefined phrase "gas rights" included a liquid-hydrocarbon substance called condensate, also known as distillate, produced by a well covered by the lease. 202 Kan. at 239-40. The court held that it did, so the lessee had to pay royalty for condensate just like it did for gas. 202 Kan. at 247-49. In reaching that conclusion, the court explored the meaning of condensate. That term, the court explained, refers to the liquid hydrocarbons produced from a gas well (unlike casinghead gas produced from an oil well). These liquids are not oil—they are incidental byproducts produced as a constituent element of the gas. That's a fancy way to say that the gas and liquids are associated in the reservoir—the condensate starts out in a gaseous form under- ground before temperature and pressure changes cause it to naturally condense into a liquid as it travels with the gas to the surface. Under Skelly, KC Royalty contends that its interest includes all liquid hydrocarbons produced in the Unit. To determine whether that's the case, the Kansas Supreme Court provided three questions for the district court to answer. Thoroughbred, 297 Kan. at 1213. We'll tackle the district court's answers to those questions one at a time. First, the district court had to answer the threshold question of whether the Declaration created a gas unit. 297 Kan. at 1213. This question is the trigger for applying Skelly—it involved the meaning of "gas rights," so a finding that the Declaration unitized something else would preclude its application. See Thoroughbred, 297 Kan. at 1213-14. The district court found that the Declaration created a gas unit because it only included the leases' "gas rights" and the proposed size of 640 acres was much larger than the 40-acre cap on oil units included in the leases. Neither party challenges that finding on appeal, so KC Royalty has an interest in "gas rights." Second, the district court had to define the "gas rights" to which KC Royalty is entitled payment as a unit member. 297 Kan. VOL. 58 COURT OF APPEALS OF KANSAS 329

Thoroughbred Assoc. v. Kansas City Royalty Co. at 1213. In other words, did the "gas rights" unitized by the Dec- laration include condensate? If so, then KC Royalty would have a right to payment for any condensate produced from Unit wells. Skelly answered this legal question by interpreting the lease to determine whether "gas rights" included condensate. The court determined that "gas" included condensate because the parties didn't specifically exclude it from the definition as they had done for casinghead gas and because other provisions contemplated condensate production. See 202 Kan. at 247-48. Although it could have been clearer, the district court here found that the "gas rights" unitized by the Declaration included condensate. Thoroughbred doesn't contest that finding on appeal. So from the first two questions, we know that the Declaration unitized the Lease's gas rights, including condensate. The last question for the district court was whether the liquid hydrocarbons produced in the Unit were condensate. Thorough- bred, 297 Kan. at 1213. We review the district court's answer to this factual question for substantial evidence, meaning legal and relevant evidence that a reasonable person might accept as supporting the court's conclusion. Gannon, 298 Kan. at 1175. The district court found that all liquid hydrocarbons produced in the Unit—at every formation—were condensate. To support that finding, the district court compared the liquids produced here to those in Skelly. In Skelly, a single well produced gas and liquids from the same formation. Like most wells in the area, the well had no separate zone for oil production. The gas and liquids naturally flowed to the surface together without using pumping equipment to lift the liquids; the gas couldn't "'be produced without carrying with it the associated liquids.'" 202 Kan. at 240. The liquids had a gravity of 47, "'which is in the condensate range and in the excess of the gravity of crude oil.'" 202 Kan. at 241. (Gravity, often expressed as a number on a scale created by the American Petroleum Insti- tute, is a metric used to distinguish different liquid hydrocarbons. 8 Williams & Meyers, Manual of Oil and Gas Terms, p. 53.) What's more, the Kansas Corporation Commission had classified the well as a gas well because it always had a gas-to-oil ratio exceeding 15,000 to 1. Skelly, 202 Kan. at 240-41. That ratio was 330 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co. uniform throughout the unit. Under these facts, the liquids were condensate. For all but the Viola formation, substantial evidence supported a finding that the liquid hydrocarbons produced in the Unit were condensate. The district court found that Unit liquids were associated and produced with the gas, and substantial evidence supported that finding for all non-Viola formations. An affidavit from Thoroughbred's expert geologist Paul Gunzelman analyzed the producing formations in the area and concluded that the Lan- sing, Kansas City, Marmaton, Altamont, and Mississippian formations all produced associated condensate. And detailed production reports Thoroughbred submitted at trial for each unit well showed that in every formation but the Viola, gas production far exceeded oil production. Gunzelman's affidavit and Thorough- bred's production data provided ample evidence from which the district court could have concluded that liquids produced from these formations were condensate. The same cannot be said about the Viola. The Viola distin- guishes our case from Skelly because there, the gas and condensate existed in the same formation; there was no separate oil-producing formation. But here the undisputed evidence shows that the Viola was a separate, oil-producing formation. For the Unit wells that produced in that formation, oil production far exceeded gas production. Thoroughbred's detailed production reports show that three wells produced much more oil than gas in the Viola:

Well Oil (bbls) Gas (mcf) Blackshirt 102,605 11,344 Husker 107,743 28,106 Tunnelwalk 55,516 10,308

Neither the district court nor KC Royalty has cited any evidence that the hundreds of thousands of barrels of oil produced in the Viola were condensate. To be sure, these three wells produced more gas than oil overall if you consider all formations. But not by much. The Blackshirt and Husker Wells had an overall gas-to-oil ratio of about 1.5:1 and 1.4:1 respectively; the Tunnelwalk Well, about 4.5:1. Those ratios seem microscopic compared to the Skelly well ratios. In Skelly, the VOL. 58 COURT OF APPEALS OF KANSAS 331

Thoroughbred Assoc. v. Kansas City Royalty Co. well started with a gas-to-oil ratio of 93,617:1; it increased over the well's lifetime to more than 200,000:1. 202 Kan. at 240. What this data shows is that the Viola liquids were oil, not condensate. The district court reached the opposite conclusion mostly by relying on Gunzelman's affidavit and Patton's testimony. The affidavit said that the Viola produced oil and gas. Oil is not condensate, so that statement cannot support a finding that Viola liquids were condensate. That leaves Patton's testimony. The district court cited no specific part of Patton's testimony, but our review of it reveals only one statement on which the district court could have relied. In that statement, Patton answered "Yes" in response to a question from his attorney about whether "Viola oil produce[s] condensate." Keep reading, however, and you'll quickly discover that his attorney used "condensate" to refer both to condensate and casinghead gas. So Patton's response was simply an acknowledgement that the Viola wells produced some casinghead gas. Read any other way, his attorney's question makes no sense because, as we mentioned above, only gas wells produce condensate. Neither Patton's testimony nor Gunzelman's affidavit showed that the Viola liquids were condensate rather than oil. In short, substantial evidence supported a finding that all liquid hydrocarbons produced in the formations above the Viola were condensate. But no evidence supported a condensate finding for the Viola, which produced oil. Skelly lets the owner of pooled gas rights benefit from oil that is incidentally gathered as part of the process of producing the gas. Production of oil in the Viola was not merely incidental to gas production. So KC Royalty's interest in the Unit includes liquid hydrocarbons produced from the Lansing, Kansas City, Marmaton, Altamont, and Mississippian, but not from the Viola. One last point before we move on to address KC Royalty's cross-appeal. Much of the evidence the district court cited on this issue is irrelevant to whether liquid hydrocarbons are in fact condensate. For example, the court noted that the Lease required royalty payment for all "production," just as in Skelly. And it cited Thoroughbred's description of the Unit as a "multizone play" and Thoroughbred's intent for unit wells to target the same formations 332 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co. as the Bird Well. None of that evidence affects the factual issue of whether the Viola liquids were condensate. We note the district court's reliance on irrelevant factors to provide guidance for future cases. The touchstone of a condensate analysis is whether the liquids are constituent elements of the gas produced as its incidental byproduct. That is, whether the liquids existed in a gaseous form in the same producing formation as the gas and naturally liquified by changes in temperature and pressure as they traveled to the surface. A variety of evidence could affect this inquiry, including the gravity of the liquids, geological features of the reservoir, gas-to-oil ratios, extraction and pumping methods used, and any other legally relevant evidence. See Skelly, 202 Kan. at 240-42. Because substantial evidence supported a finding that Unit liquids produced in all formations other than the Viola were condensate, we affirm the district court's conclusion that KC Royalty was entitled to share in oil-production royalties in all formations above the Viola. We reverse the district court with respect to oil production from the Viola. Because new calculations of the royalties and interest owed will be required, we remand to the district court for that purpose.

III. The District Court Did Not Abuse Its Discretion in Denying Attorney Fees to KC Royalty.

The last issue we consider is KC Royalty's cross-appeal challenging the district court's decision not to award attorney fees. Kansas courts can award attorney fees only if a statute authorizes them or the parties agree to allow them. Whether the district court had the authority to award attorney fees is a legal question subject to unlimited review on appeal. If the court had authority, we review the amount of fees awarded for abuse of discretion. A district court abuses its discretion if it bases its decision on legal or factual error, or if no reasonable person would agree with the decision. Snider v. American Family Mut. Ins. Co., 297 Kan. 157, Syl. ¶¶ 2- 3, 6, 298 P.3d 1120 (2013). KC Royalty alleges that the district court committed two legal errors when it denied attorney fees. First, KC Royalty says the district court erred in deciding on its own motion not to award attorney fees. According to KC Royalty, doing so violated the rule VOL. 58 COURT OF APPEALS OF KANSAS 333

Thoroughbred Assoc. v. Kansas City Royalty Co. that a trial court cannot consider nonjurisdictional issues that the parties didn't raise themselves. Frontier Ditch Co. v. Chief Engi- neer of Div. of Water Resources, 237 Kan. 857, Syl. ¶ 3, 704 P.2d 12 (1985). To be sure, deciding whether to award attorney fees isn't a jurisdictional issue. But here, KC Royalty invited the district court to decide the issue. In a posttrial motion, KC Royalty asserted that it was entitled to attorney fees and requested a separate hearing to determine the amount of those fees. By taking a position on its entitlement to attorney fees, KC Royalty invited the district court to decide that issue. The district court accepted that invitation and found that KC Royalty should not receive attorney fees under the relevant statute. So the court didn't commit a legal error by deciding in its written decision that KC Royalty should not recover its attorney fees. Second, KC Royalty says that the district court was required by K.S.A. 55-1617 to award attorney fees to it as the prevailing party. Under that statute, a prevailing party in a case to recover interest on certain oil-and-gas payments "may recover court costs and reasonable attorney fees at the discretion of the court." K.S.A. 55-1617. Citing our prior opinion, KC Royalty claims that K.S.A. 55-1617 requires the district court to award attorney fees to the prevailing party absent a compelling reason not to. Thoroughbred, 45 Kan. App. 2d at 334. Because the district court cited no compelling reason here, KC Royalty says the court had to award fees to it as the prevailing party. But as Thoroughbred points out, our prior opinion also emphasized the discretionary nature of K.S.A. 55-1617. 45 Kan. App. 2d at 335. The provision uses discretionary language to describe the district court's authority to award fees: the prevailing party "may recover" fees "at the discretion of the court." K.S.A. 55- 1617. Kansas courts have long recognized that the usual meaning of "may" is permissive. Bradley v. Cleaver, 150 Kan. 699, Syl. ¶ 1, 95 P.2d 295 (1939). And "at the discretion of the court" only emphasizes that usage. K.S.A. 55-1617. Our prior decision doesn't endorse a mandatory reading of K.S.A. 55-1617. Although we described that provision as a "strict liability remedy," we did so in the context of rejecting an argument that a court couldn't award fees unless a party acted in bad faith. 334 COURT OF APPEALS OF KANSAS VOL. 58

Thoroughbred Assoc. v. Kansas City Royalty Co.

Thoroughbred, 45 Kan. App. 2d at 334-35. Neither party addressed the mandatory-versus-permissive issue in the earlier appeal, and we didn't decide it. We follow K.S.A. 55-1617's plain language and conclude that it does not make the award of attorney fees to the prevailing party mandatory. KC Royalty raises one last argument—that no reasonable person would agree with the district court's decision to order that the parties pay their own attorney fees. Success on that argument is a tall order because we usually defer to the district court's expertise on attorney fees unless justice requires otherwise. Johnson v. Westhoff Sand Co., 281 Kan. 930, Syl. ¶¶ 3-5, 135 P.3d 1127 (2006). The district court here found mitigating factors that weighed against awarding attorney fees to KC Royalty as the prevailing party. The genesis of this case, the court noted, was Oxy inserting the unitization conditions in the Lease. So it would be unfair to award fees to KC Royalty, who overlooked those conditions when it acquired the Lease. That was consistent with the court's separate finding that the parties had unitized the Lease by modification, waiver, or equitable estoppel. It was possible to acknowledge KC Royalty's role in the dispute as a reason to deny attorney fees but also to find that the parties had unitized the Lease. Having lived with this case for almost two decades now, the district court was in the best position to decide whether KC Roy- alty should receive attorney fees. We defer to its judgment. Be- cause a reasonable person could agree with the decision to require all parties to pay their own attorney fees, the district court didn't abuse its discretion. We reverse the district court's judgment to the extent that it awarded any interest to non-gas royalties from production in the Viola formation. We otherwise affirm the district court's judgment. We remand the case to the district court for further proceedings consistent with this opinion. VOL. 58 COURT OF APPEALS OF KANSAS 335

Cooper Clark Foundation v. Oxy USA

___

No. 120,371

COOPER CLARK FOUNDATION, On Behalf of Itself and All Others Similarly Situated, Appellees, v. OXY USA INC., Appellant.

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SYLLABUS BY THE COURT

1. OIL AND GAS –Gas Leases—Implied Duty on Company to Market All Gas Produced. Under Kansas law, all gas leases impose an implied duty on the gas company (the lessee) to market any gas produced from the well. Unless disclaimed by express language, that means the gas company must market its product at reasonable terms within a reasonable time following production.

2. SAME—Gas Leases—Marketable-Condition Rule—Application. A corollary of the gas company's duty to market the gas is the marketable-condition rule. Under that rule, the gas company must make the gas marketable at its own expense, which means that expenses required to make the gas marketable cannot be deducted from royalty payments. Once the gas is in marketable condition, expenses may be deducted from royalty payments.

3. SAME—Gas Leases—Concept of Marketable-Condition Rule. The concept of marketability is tied to the market for the gas. When the parties have agreed that the gas will be sold in the interstate market, the gas company cannot deduct expenses required to make the gas marketable for the interstate market.

4. SAME—Gas Lease—Marketable-Condition Rule. When the parties have agreed that the gas at issue will be sold in the interstate market, that some of the gas produced from the same well could be used at the wellhead or at a farmhouse does not make the gas at issue marketable under the marketable-condition rule.

5. CIVIL PROCEDURE—Certification of Class Action Lawsuit—District Court's Discretion—Appellate Review. The district court has considerable discretion in deciding whether certification of a class-action lawsuit is appropriate. If the court considers the relevant factors listed in K.S.A. 2019 Supp. 60-223, the appellate court reviews the decision only for abuse of discretion. The district court abuses its discretion if its decision is based on legal or factual error, or if its discretion is arbitrary or unreasonable. Factual findings must be supported by substantial evidence; underlying legal issues are reviewed independently, with no required deference to the district court.

336 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA

Appeal from Grant District Court; BRADLEY E. AMBROSIER, judge. Opinion filed June 26, 2020. Affirmed.

Mark C. Rodriguez and Deborah C. Milner, of Vinson & Elkins LLP, of Houston, Texas, and James M. Armstrong and Mikel L. Stout, of Foulston Siefkin LLP, of Wichita, for appellant.

Rex A. Sharp, Barbara C. Frankland, Ryan C. Hudson, and Scott B. Goodger, of Sharp Law LLP, of Prairie Village, for appellees.

Before LEBEN, P.J., GARDNER, J., and MCANANY, S.J.

LEBEN, J.: Oxy USA Inc. appeals the district court's decision to certify Cooper Clark Foundation's class-action lawsuit. Cooper sued on behalf of Kansas landowners with leases allowing Oxy to extract natural gas from their property in exchange for a monthly payment. Cooper alleges that Oxy underpaid landowners for several years by subtracting processing expenses from payments in violation of Oxy's duties under the leases. On appeal, Oxy raises four issues with the district court's certification decision. We begin with a preview of those issues and how we'll resolve them. First, Oxy argues that the district court misapplied a legal doctrine underpinning many of Cooper's claims: the marketable-condition rule. Oxy says the court misread a case applying that rule, Fawcett v. Oil Producers, Inc. of Kansas, 302 Kan. 350, 352 P.3d 1032 (2015). Oxy contends that, under Fawcett, the class cannot be certified because the district court can't decide whether gas was marketable without evaluating gas quality from individual wells. But Oxy misreads Fawcett and ignores the way in which Cooper has defined the proposed class. Under Cooper's class definition, the only gas included is gas bound for the interstate market. So even if some small amount of gas could be used at the wellhead to run equipment or at a nearby farmhouse to provide heat, that wouldn't affect the marketability of the gas headed to the interstate market. And only that gas is included in Cooper's class. Second, Oxy challenges the district court's commonality finding. A district court can't certify a class without finding commonality, meaning that all class members' claims depend on a common contention that's capable of resolution classwide. Oxy says several aspects of Cooper's claims present individual questions that VOL. 58 COURT OF APPEALS OF KANSAS 337

Cooper Clark Foundation v. Oxy USA should have precluded a commonality finding. But Cooper sup- plied ample evidence for the district court to find that the class petition raised several common questions, so the district court was right to reject Cooper's contrary claims. Third, Oxy attacks the district court's predominance finding. Cooper certified the class under K.S.A. 60-223(b)(3), so the district court had to find that questions common to all class members predominated over those affecting only individual members. Oxy says that its statute-of-limitations defense presents individual questions that predominate because the district court will have to consider whether each class member has an excuse for failing to timely file their claims. But Oxy's defense can be litigated classwide; and even if it could not, the individual questions that defense might pose would not predominate. So the district court didn't abuse its discretion in finding predominance. Last, Oxy claims that the district court failed to rigorously analyze the statutory requirements for class certification. Oxy points out that, before certifying the class, the district court didn't expressly rule on Oxy's motion to strike Cooper's expert testimony. Oxy says the failure to do so violated a requirement that the district court rigorously analyze the statutory requirements for class certification. Yet nothing in the substance of Oxy's motion would have precluded certification. And even if the district court should have ruled on Oxy's motion before certifying the class, the court implicitly did so with detailed findings rejecting the substance of Oxy's motion. On Oxy's last argument, like the other three, we find no error in the district court's decision to certify Cooper's class action.

FACTUAL AND PROCEDURAL BACKGROUND

We consider the issues of this appeal in the context of how gas is produced from the Hugoton Field. That field was once described as the largest reservoir of natural gas in the world. It's no surprise, then, that most Hugoton Field gas doesn't stay in Kan- sas—it's sent to pipelines for sale in the interstate market. See Coulter v. Anadarko Petroleum Corp., 296 Kan. 336, 339, 292 P.3d 289 (2013); Southwest Kan. Royalty Owners Ass'n v. Kansas Corporation Comm'n, 244 Kan. 157, 160, 769 P.2d 1 (1989). 338 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA

To understand the background of the case so that we can then discuss the legal issues of this appeal, we will first review the gas- production process and the gas leases at issue. When we get to the leases, each lease has a lessor, the landowner who grants rights to extract gas beneath the surface, and a lessee, the gas company that takes the gas to market it. For the ease of the lay reader, we'll simply refer to the lessee as the gas company throughout this opinion. Cooper seeks to represent the lessors in this class action; Oxy is the gas company or lessee.

The production process

This case involves a class-action lawsuit about natural-gas leases. Cooper represents 190 Kansas gas wells owned and operated by Oxy until 2014 (Class Wells). Oxy produced gas from Class Wells under 245 leases (Class Leases). The leases covered wells in the Hugoton Field, which stretches from southwest Kan- sas down through the panhandles of Oklahoma and Texas. Most but not all Hugoton gas is bound for the interstate market—a small amount is used near the well in its raw form. You can use raw gas to heat a home (House Gas) or power irrigation equipment (Irrigation Gas). Or you can use it in the field to power gas-production equipment (Field Gas). But most Hugoton gas isn't used near the well—nearly all of it (about 99%) is sent for processing and sale in the interstate market. That's what happened in our case. Oxy sent a small amount of gas from Class Wells for use in its raw form near the well: gas from 13 Class Wells was used as House Gas and gas from 24 Class Wells (about 2% to 3% of all gas from Class Wells) was used as Irrigation Gas. But most Class Wells (160 of 190) sent no gas for use as House or Irrigation Gas. Oxy used some gas from an unknown number of Class Wells as Field Gas to power its pumps and compressors. Oxy sent the rest of the gas drilled from Class Wells for processing at the Jayhawk Plant under a contract with Amoco Pro- duction Company, the Plant's owner. Cooper's class definition includes only the gas from Class Wells sent for processing at the Plant (Class Gas); it excludes any raw gas from Class Wells used as House, Irrigation, or Field Gas. VOL. 58 COURT OF APPEALS OF KANSAS 339

Cooper Clark Foundation v. Oxy USA

At the Plant, Amoco extracted three individual components from raw Class Gas: Natural Gas Liquids (NGLs), Crude Helium, and Residue Gas. Amoco charged an in-kind processing fee for its services: it retained 25% of NGLs and 50% of Crude Helium extracted from Class Gas. It also charged a processing fee for Resi- due Gas. Then Amoco delivered the three extracted components, minus the amount retained as a processing fee, back to Oxy at the Plant. So Oxy received 100% of Residue Gas, 75% of NGLs, and 50% Crude Helium. After processing, Oxy sold the components in the interstate market. Those sales had to occur after processing—until then, raw gas doesn't meet the minimum-quality standards set by the Federal Energy Regulatory Commission (FERC) for transporting gas on interstate pipelines. Oxy sold Residue Gas to its affiliate entity Occidental Energy Marketing, Inc. Occidental Energy paid Oxy the Southern Star Index Price—an established interstate-pipeline price based on a survey of transactions over a given period. Then Occidental Energy resold Residue Gas to third-parties. Occidental Energy also marketed NGLs for Oxy, selling the product to third- parties and passing on proceeds to Oxy. Oxy had a similar ar- rangement with Amoco for Crude Helium—Amoco marketed the product and passed on proceeds it received from buyers to Oxy.

The royalty clauses

We've focused so far on the production process, tracing Class Gas from the well where Oxy extracted it to the interstate market where Oxy sold it. But to understand Cooper's claims, it would help to understand how Oxy paid landowners under Class Leases. Like all natural-gas leases, Class Leases require Oxy to pay royalties. Royalties are paid monthly from the gas company to a landowner (the lessor) when land burdened by a lease produces gas. Cooper and Oxy dispute the proper method of calculating royalty under Class Leases. Oxy points to three types of royalty clauses recognized in Kansas: proceeds, market value, and Waechter. Under proceeds leases, the gas company pays royalty based on a percent of the actual money it receives from selling the gas. But with market-value leases, Oxy says the gas company pays based on the price a willing buyer would pay a willing seller in a free market. Waecther leases—named after the lease type in 340 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA

Waechter v. Amoco Production Co., 217 Kan. 489, 537 P.2d 228 (1975)—combine aspects of proceeds and market-value leases, with payment depending on where the gas was sold.

In the district court, both parties submitted a chart categoriz- ing Class Leases by their royalty clauses. Both charts categorize Class Leases into 14 forms. Oxy's chart also sorts the leases into the three types we just mentioned. By Oxy's count, Cooper's class includes 114 Waechter leases, 104 market-value leases, and 27 proceeds leases. Oxy's chart also classifies each lease form by the volume of gas on which Oxy says it had to pay royalty. Cooper disputes these classifications.

The class action

On February 16, 2017, Cooper filed a class-action petition alleging that Oxy had underpaid royalties on Class Gas from July 1, 2007, to April 30, 2014 (Class Period). Oxy did so, the petition claimed, by deducting several processing expenses from royalties. Cooper said that those deductions violated Oxy's duties under Class Leases and entitled class members to recovery of unpaid royalties. Cooper sought to recover expenses from four deductions. First, Cooper alleged that Oxy deducted processing fees charged by Amoco for Residue Gas. Second, Cooper claimed that Oxy did- n't pay royalty on the full volume of NGLs and Crude Helium recovered from Class Wells. In other words, Cooper said that Oxy didn't pay any royalty on the 25% NGLs and 50% Crude Helium retained by Amoco. Third, Cooper said Oxy paid royalty for Res- idue Gas on the Index Price rather than on the price Occidental Energy received from third parties when it resold the Gas. Accord- ing to Cooper, Occidental Energy's resale price was usually higher than the Index Price. Last, Cooper sought to recover interest on Conservation Fees deducted from royalty. Oxy pays Conservation Fees to the Kansas Corporation Commission and had been deducting them from royalty. It repaid those Conservation Fees to class members after our Supreme Court held that gas companies couldn't deduct them from royalty. But Oxy paid no interest on the repaid Conservation Fees. VOL. 58 COURT OF APPEALS OF KANSAS 341

Cooper Clark Foundation v. Oxy USA

Cooper said that Oxy should have to pay interest on repaid Con- servation Fees. When Cooper moved to certify these claims as a class action, Oxy objected. And Oxy moved to strike the testimony of Cooper's expert witness. Cooper filed a reply brief supporting its certification motion and moved for partial summary judgment on several issues Oxy raises in this appeal. Oxy hadn't responded to Cooper's summary-judgment motion before the district court certified the class, so the district court hasn't yet ruled on it and that motion is not before us on appeal.

The certification order

In a 24-page order, the district court granted Cooper's motion and certified the class. The district court identified the statutory requirements for certification and discussed each separately. See K.S.A. 2018 Supp. 60-223(a), (b)(3). It devoted 11 pages to the commonality requirement, identifying several common questions supporting certification:

 Oxy's legal duties under Class Leases, including the duty to market;  Whether Oxy breached the duty to market by deducting processing costs from royalty;  Whether Oxy breached the mutual-benefit or best-available-price rule by paying royalty for Residue Gas on the Index Price rather than Occidental Energy's resale price; and  The damages calculation.

The court rejected Oxy's commonality arguments. Oxy had argued that because some gas from Class Wells had been used for House, Irrigation, and Field Gas, some Class Gas may have been marketable at the well. So determining when Class Gas was marketable, according to Oxy, presented individual questions that required a well-by-well analysis. Oxy had also argued that Hydro- gen Sulfide (H2S) in some Class Wells may have made Class Gas unmarketable at the well. The district court considered Oxy's marketability arguments and found that they didn't preclude a commonality finding. 342 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA

Having found that Oxy met the prerequisites for certification under K.S.A. 60-223(a), the court next addressed the predominance requirement of K.S.A. 60-223(b)(3). Oxy had argued that its statute-of-limitations defense raised individual issues that would predominate over questions common to all class members. The court found that it need not consider evidence relevant to affirmative defenses like the statute of limitations when deciding predominance. Yet the court still considered Oxy's defense, concluding that predominance remained intact because the parties could litigate Oxy's defense classwide. Because the court found that Cooper's petition met the statutory requirements, it certified the Class. Oxy appealed the district court's certification decision to our court.

ANALYSIS

When a party challenges a district court's decision to certify a class action, as Oxy does here, we begin our analysis with the class-action statute, K.S.A. 2019 Supp. 60-223. That statute gives the district court substantial discretion in deciding whether certification is appropriate. If the trial judge considers the relevant factors listed in the statute, then we review its decision for abuse of discretion. It abuses its discretion if its decision is based on legal or factual error, or if its decision is arbitrary or unreasonable. Fac- tual findings must be supported by substantial evidence; we review legal questions independently, with no required deference to the district court. Coulter, 296 Kan. at 351-52. To certify a class action, the district court must make two findings. First, it must find that the class meets four prerequisite requirements: (1) numerosity, (2) commonality, (3) typicality, and (4) adequacy of representation. K.S.A. 2019 Supp. 60-223(a). Second, it must find that one of the circumstances in K.S.A. 2019 Supp. 60-223(b) exists; the district court found that common questions would predominate over individual ones under K.S.A. 2019 Supp. 60-223(b)(3). Oxy raises four issues with the district court's certification decision that each relate to one of the perquisite requirements in subsection (a) or the circumstances in subsection (b). We will address each of Oxy's four arguments. VOL. 58 COURT OF APPEALS OF KANSAS 343

Cooper Clark Foundation v. Oxy USA

I. The District Court's Certification Decision Was Not Based on a Misreading of Fawcett.

Oxy first argues that the district court certified Cooper's class based on a misinterpretation of our Supreme Court's opinion in Fawcett. That case dealt with the meaning of a legal doctrine called the marketable-condition rule. To better understand Oxy's position, we briefly discuss the general principles of that rule. Under Kansas law, all gas leases impose an implied duty on the gas company to market any gas produced from a well. Unless disclaimed by express language, that means the gas company must market its product at reasonable terms within a reasonable time following production. Fawcett, 302 Kan. at 351. A corollary of that duty is the marketable-condition rule, which requires gas companies to make gas marketable at their own expense (meaning they can't deduct those expenses from royalty). 302 Kan. at 352, 361. But when is gas considered in a "marketable condition" so that a company can start deducting expenses? Oxy's first argument is rooted in the parties' disagreement on the answer to that question. Oxy says the district court adopted Cooper's view that, under Fawcett, Class Gas was marketable only after it was sold in good faith. That view misreads Fawcett, Oxy argues, because Fawcett didn't alter the long-held rule in Kansas that gas can be marketable at the well before it is sold. And if that's the case, then certification may have been improper because the district court would have to analyze each Class Well one-by-one to see if the gas from that well was marketable based on several factors. Put another way, it would have to conduct the kinds of individualized inquiries that preclude a commonality finding. So Oxy asks us to instruct the district court to consider whether certification is appropriate under Oxy's reading of Fawcett. We turn next to Fawcett so we can resolve the parties' divergent views on its holding. Like our case, Fawcett involved a class action for royalty underpayment. But unlike this case, the gas company in Fawcett sold the gas to third parties at the well. The third parties paid the gas company a price that deducted processing costs, then the gas company paid royalty based on that price rather than on the gross value 344 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA of the gas without processing costs subtracted. The plaintiffs argued that paying royalty with processing costs deducted violated the marketable-condition rule. The gas was not marketable, argued the plaintiffs, until it entered interstate pipelines after processing. So the gas company should have incurred all costs necessary to prepare the gas for interstate transmission, including the deducted processing costs. 302 Kan. at 351-52. The Kansas Supreme Court disagreed. The court acknowledged that when gas becomes marketable remains an "open question" in Kansas. 302 Kan. at 363-64. But whatever marketable means, gas is always marketable when it has been sold. The first sale of the gas at issue occurred at the well. When that sale occurred, the gas must have been in a marketable condition because it had been marketed. 302 Kan. at 364. "[T]he duty to make gas marketable is satisfied," the court said, "when the operator deliv- ers the gas to the purchaser in a condition acceptable to the purchaser in a good faith transaction." 302 Kan. at 365. So the gas company in Fawcett could deduct the processing costs without violating the marketable-condition rule because it had incurred those costs after the point at which the gas became marketable— the first sale at the well. 302 Kan. at 365-66. Now let's return to the parties' dispute about Fawcett's holding. Recall that Cooper reads Fawcett as holding that gas cannot be in a marketable condition until it is sold in a good-faith transaction. Under that view, Oxy violated the duty to market when it deducted pre-sale expenses from royalty. But Fawcett didn't say that gas is marketable only when it is sold; it said that a good-faith sale satisfies the marketable-condition rule because gas that has been marketed is always marketable. In other words, a sale is sufficient but not necessary for gas to be in a marketable condition. See 302 Kan. at 365. If the court had intended for sales to be the only way gas could become marketable, then there would have been no point in noting that the meaning of marketability "remains an open question." 302 Kan. at 363. Cooper's marketable-means- sale reading of Fawcett reaches too far. Oxy's reading of Fawcett is more nuanced than Cooper's but it fares no better. As we noted earlier, Oxy reads Fawcett as confirming a long-standing rule that gas sold away from the well may VOL. 58 COURT OF APPEALS OF KANSAS 345

Cooper Clark Foundation v. Oxy USA be marketable at the well pre-sale. If so, then Class Gas may have been marketable at the well before processing, allowing Oxy to deduct processing costs from royalty because it incurred those expenses pre-sale. Oxy cites two Kansas Supreme Court cases that it says support this view: Sternberger v. Marathon Oil Co., 257 Kan. 315, 894 P.2d 788 (1995), and Coulter, 296 Kan. 336. Unlike in Fawcett, there was not a market for the gas in Stern- berger at the well. The gas company couldn't persuade a buyer to build a pipeline that connected to the company's wells. So the company built its own pipeline to transport the raw gas from the wells to a larger pipeline for sale. It deducted a portion of the pipeline construction cost from royalties. A class of royalty owners sued the company to recover those costs. 257 Kan. at 318-20. The Sternberger court held that the gas company could deduct the pipeline-construction costs from royalties. The court summarized Kansas law on the marketable-condition rule: "Once a marketable product is obtained, reasonable costs incurred to transport or enhance the value of the marketable gas may be charged against nonworking interest owners." 257 Kan. at 331. The royalty owners in Sternberger offered no evidence that the gas was not already in a marketable condition at the well in its raw form. The pipeline didn't alter the physical quality of the gas—it merely moved the gas from the well to a larger pipeline. The gas was already marketable at the well but there was no buyer there, so the gas could be sold only if transported elsewhere. Thus, the gas company did- n't violate the marketable-condition rule by deducting some of the pipeline-construction costs from royalty because those deductions occurred after the gas was already marketable. 257 Kan. at 331- 32. Oxy reads Sternberger as holding that gas can be marketable at the well even if no market exists there. If so, and if Fawcett didn't overturn Sternberger, then Class Gas could have been marketable pre-sale at the well. But even if gas can be marketable at the well, how does Oxy know that the Class Gas here was marketable at the well? Oxy says the answer lies in Coulter. In Coulter, the defendant argued that some of the gas in that case was in a marketable condition at the well. Our Supreme Court addressed that argument in dicta—the court was deciding whether a district court erred in affirming a class-action settlement, not the 346 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA meaning of marketability. The court noted that some gas was used as House Gas, which suggested that "gas at the well site [was] in a marketable condition for household use." 296 Kan. at 365. And some gas was used as Irrigation Gas, which showed that "the gas [was] in marketable condition for use in irrigation systems before it [was] in a condition to enter the interstate transmission pipeline." 296 Kan. at 365. These issues presented "unresolved factual and legal questions" about the marketability of the gas. 296 Kan. at 365. Oxy makes a similar point about determining the marketability of Class Gas. Oxy observes that Class Gas, like the gas in Coulter, may have been marketable at the well. A small amount of gas from Class Wells was never processed—it went straight from the well for use as House, Irrigation, and Field Gas. Oxy says some Class Gas may have been usable at the well for those purposes too, even though Cooper excluded gas from Class Wells used for those purposes from the class definition. Oxy contends that determining whether any Class Gas was usable at the well should preclude certification because it would require a well-by-well analysis. Taken to its logical conclusion, Oxy's interpretation of Coul- ter, Sternberger, and Fawcett would substantially erode the marketable-condition rule. Oxy argues that because some gas from Class Wells was usable at the well for House, Irrigation, and Field Gas, all Class Gas could have been usable at the well for those purposes. Of course, no Class Gas was used for those purposes— Oxy sent all Class Gas to the Plant for processing and sale in the interstate market. So Oxy must be arguing, as it admitted at oral argument, that all gas from a well is marketable the moment any gas from that well is usable for some purpose, even if the gas will not be used for that purpose. Our Supreme Court rejected that view of marketability over a century ago because all gas is usable for some purpose the moment it leaves the ground. See Ely v. Wichita Natural Gas Co., 99 Kan. 236, 246-47, 161 P. 649, 652- 53 (1916). If that were all it took for gas to be considered marketable, then gas companies could deduct every expense incurred after the gas leaves the ground on the theory that some gas is already usable for some purpose. Such a rule would hollow out the marketable- VOL. 58 COURT OF APPEALS OF KANSAS 347

Cooper Clark Foundation v. Oxy USA condition rule and render it meaningless. Oxy's reading of Faw- cett, like Cooper's, reaches too far. Neither Oxy nor Cooper offers a workable theory of marketability after Fawcett. Oxy says Class Gas was in a marketable condition if it was usable at the well for any purpose. But that approach would make all gas marketable at the well because all gas is usable in its raw form for some purpose. Cooper equates marketability with sales, an approach at odds with Fawcett. Fawcett held that a sale satisfies the duty to market, but it did not hold that a sale was the only way to satisfy that duty. Fortunately, there's a better way to read Fawcett. Through their conduct, the parties in Fawcett had defined a market at the well, where the gas company had arranged for a buyer to buy the gas. When those sales occurred, the gas may not have been in a condition suitable to other buyers in other markets downstream. But the gas was in a condition acceptable to a buyer in the only market that mattered—the one created by the parties through their actions. The buyer had some use for the gas and it was evidently already in a condition suitable for that use at the well. 302 Kan. at 364-65. Fawcett establishes a simple principle: when parties define a market for gas through their conduct, that gas is marketable when it is in a condition acceptable for that intended market. The concept of marketability is tied to the market for the gas. As we noted, the quantity of gas available in the Hugoton Field vastly exceeds any market for the use of unprocessed gas for House, Irrigation, or Field Gas. Cooper has defined Class Gas to include only the gas intended for the interstate market; the small quantities used for House, Irrigation, or Field Gas are excluded. When the parties have agreed that the gas will be sold in the interstate market, the gas company cannot deduct expenses required to make the gas marketable for that interstate market. That principle tracks with Sternberger and Coulter too. The Sternberger gas was of a quality capable of being transported in interstate pipelines without processing—it simply had to be moved from one place to another. So the gas company could deduct the costs of building a transportation pipeline to bring the marketable gas to the market intended by the parties. 257 Kan. at 330-32. And in Coulter, gas used near the well as House and Irrigation 348 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA

Gas was marketable for those purposes in those markets. 296 Kan. at 365. Those uses, like the well sales in Fawcett, were conclusive evidence of marketability. When applied here, the market-driven definition of marketability easily resolves the parties' claims. Oxy didn't sell any Class Gas at the well; it sold all Class Gas downstream in the interstate market. Until Class Gas was processed, it fell below FERC's minimum-quality standards for transporting gas in interstate pipelines. So Class Gas was- n't in a condition suitable for its intended market until Amoco delivered the processed components (now up to FERC's standards) back to Oxy at the Plant. All royalty deductions from costs incurred before that point violated the marketable-condition rule; deductions after that point did not. Under this view, the district court didn't need to consider Oxy's list of general marketability factors because none could have affected the marketability of Class Gas. Take Oxy's claim that the district court should have considered whether any Class Gas was usable at the well for House, Irrigation, or Field Gas. Those factors may affect marketability in other cases, but they don't do so in our case when the parties defined the market for Class Gas. Oxy sent all Class Gas to the Plant for processing and sale in the interstate market; no Class Gas was intended for use at the well. That Class Gas may have been in a suitable condition at the well for the House, Irrigation, and Field Gas markets doesn't affect the only relevant inquiry: when was Class Gas suitable for the interstate market where Oxy intended to sell it? Consider Oxy's argument about HS2 content. A high H2S content makes gas unmarketable, notes Oxy, so some Class Gas may have been unmarketable if any Class Wells had a high H2S content. Again, this doesn't matter because all Class Gas was unmarketable until it was in a condition suitable for the market intended by the parties (until it was processed). We don't need to know what the H2S content of gas from individual Class Wells was because all Class Gas was unmarketable at the well regardless of H2S content; the dispositive inquiry is the intended market for the gas and that inquiry isn't influenced by H2S content. Even if H2S were relevant, its effect on marketability would present a common question because both parties agree that Oxy removed it after gathering Class Gas into a single stream on the way to the Plant for processing. As with the other factors Oxy says VOL. 58 COURT OF APPEALS OF KANSAS 349

Cooper Clark Foundation v. Oxy USA affect marketability, we need not consider H2S content to determine when Class Gas was marketable for interstate sales, the intended market here. Now that we've established a workable definition of marketability, we can apply it to Cooper's three claims. The first two deductions occurred before the Class Gas was marketable. First, Cooper alleges that Oxy deducted a processing fee for Residue Gas. Oxy incurred that expense before processing. It was a cost incurred to get Class Gas in a condition suitable for interstate sales. So Oxy could not deduct it. Second, Cooper claims that Oxy didn't pay royalty on the 25% NGLs and 50% Crude Helium retained by Amoco as an in-kind processing fee. Like the first deduction, this was a processing expense Oxy incurred to put Class Gas in a condition suitable for interstate sales. So Cooper may also state a claim based on Oxy not paying royalty on the full volume of NGLs and Crude Helium. Cooper's last claim is a different story. That claim says that Oxy violated the marketable-condition rule by paying royalty for Residue Gas on the Index Price rather than on the Occidental En- ergy's resale price. Residue Gas had been processed when these sales occurred, so the gas was already in a marketable condition. Oxy didn't violate the marketable-condition rule by paying royalty on the Index Price. To be clear, Oxy may have violated other duties by paying the Index Price. Cooper's class petition alleged that Oxy's Index Price scheme violated two duties other than the marketable-condition rule: the duty of good faith and the duty to obtain the best available price. Those duties are distinct from the marketable-condition rule. Fawcett, 302 Kan. at 361, 365-66; see McArthur, Mineral Royalties, Deductions, and Fawcett v. Opik: Continuity and Change in the Revised-But-Still-Standing Kansas Marketable- Product Rule, 64 U. Kan. L. Rev. 63, 81-85 & n.80 (2015). Our conclusion that Oxy did not violate the marketable-condition rule by paying royalty on the Index Price says nothing about whether that conduct violated these other duties. Cooper's Index Price claims can proceed based on those other duties but not based on the marketable-condition rule.

350 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA

Let's review what we've established so far. Under Fawcett, Class Gas wasn't marketable until it was in a condition suitable for its intended market. All Class Gas was bound for the interstate market and wasn't of a quality suitable for that market until it was processed. So Class Gas was marketable after processing. Two of Cooper's marketable-condition claims allege that Oxy deducted pre-marketability expenses from royalty. Those claims fit Faw- cett's definition of marketability and can proceed. But Cooper's third claim—that Oxy paid royalty for Residue Gas on the Index Price—is based on a post-processing deduction after the gas was already marketable. Although this means Cooper doesn't have a claim under the marketable-condition rule for that deduction, Cooper may still state claims that paying the Index Price violated other duties in Class Leases. Before moving on, we need to address one more point on the Fawcett issue. At oral argument, Oxy emphasized an unpublished federal district court opinion that discusses Fawcett. See Hitch En- terprises, Inc. v. Oxy USA Inc., No. 18-1030-EFM-KGG, 2019 WL 3202257 (D. Kan. 2019) (unpublished opinion), rev. denied No. 19-609 (10th Cir. Feb. 10, 2020). We aren't bound by that court's interpretation of Kansas natural-gas law, but we are all try- ing to get it right. See Kansas Public Employees Retirement Sys- tem v. Reimer & Koger Assocs., Inc., 262 Kan. 635, 669-70, 941 P.2d 1321 (1997). With that in mind, let's examine Hitch. Hitch involved the same facts as our case. The plaintiffs sought certification for royalty underpayment based on deductions they alleged were made before the gas was marketable, and the parties disputed the meaning of marketability based on Fawcett. The plaintiffs offered the marketable-means-sale reading of Faw- cett while Oxy, who was also the defendant in Hitch, argued that Fawcett didn't alter the long-held rule in Kansas that gas can be marketable at the well. 2019 WL 3202257, at *4. We agree with much of Judge Eric Melgren's analysis in Hitch. Judge Melgren read Fawcett (as we do) as holding that a good-faith sale is sufficient but not necessary to satisfy the marketable-condition rule. 2019 WL 3202257, at *5. He also concluded that Fawcett left Sternberger's holding—that gas may be VOL. 58 COURT OF APPEALS OF KANSAS 351

Cooper Clark Foundation v. Oxy USA marketable at the well before a sale—untouched. 2019 WL 3202257, at *6. We agree with that too. But our agreement ends there. Judge Melgren denied certification of the plaintiffs' marketable-condition claims based on Coulter—he considered House and Irrigation Gas use from some wells as evidence of marketability at the well even though the class definition excluded that gas. 2019 WL 3202257, at *8. Un- like Judge Melgren, we are unconvinced that the usability of a small amount of gas at the well as House or Irrigation Gas affects the marketability of the vastly greater share of the gas that is des- tined for the interstate market. We've already discussed the problem with accepting that argument—all gas is usable at the well for some purpose. We decline to follow Judge Melgren's analysis because doing so would undermine the marketable-condition rule.

II. The District Court Did Not Abuse its Discretion When it Found That Cooper's Class Petition Raised Questions of Law and Fact Common to All Class Members.

Oxy next objects to the district court's commonality finding. Commonality is one of the four requirements that must exist before a trial judge can certify a class action—the plaintiffs' petition must present questions of law or fact common to all class members. K.S.A. 2019 Supp. 60-223(a)(2). That means the proposed class members must state claims that depend on a "common contention that is capable of class-wide resolution, meaning that determination of its validity will resolve an issue that is central to the validity of each of the claims with one answer." Critchfield Physical Therapy v. The Taranto Group, Inc., 293 Kan. 285, 295, 263 P.3d 767 (2011). Put differently, commonality exists if it's "possible for the litigation to generate answers in common for the proposed class to questions raised in common by the class." 293 Kan. at 297. Oxy raises three issues with the district court's commonality findings. First, Oxy argues that variations in the language in Class Leases preclude a commonality finding. Second, Oxy contends that resolving the factual issues in the case will require Cooper to present individualized evidence. Third, Oxy says that whether it owes interest on repaid Conservation Fees is an individualized 352 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA question. None of these arguments preclude a commonality finding.

Disclaimer language in Class Leases doesn't destroy commonality.

Oxy's first commonality argument is that whether the duty to market exists in Class Leases presents individual questions because language in some leases may disclaim that duty. All gas leases in Kansas contain the implied duty to market. Fawcett, 302 Kan. at 366. A gas company may only disclaim that duty with clear and express language to that effect. Farrar v. Mo- bil Oil Corp., 43 Kan. App. 2d 871, 887-88, 234 P.3d 19 (2010). The express language must authorize the specific deduction taken. See Gilmore v. Superior Oil Co., 192 Kan. 388, 392-93, 388 P.2d 602 (1964). Oxy doesn't dispute that the duty to market exists in all Class Leases. It instead argues that some Class Leases contain language disclaiming that duty. Because the royalty-clause language in Class Leases varies from one lease form to another, Oxy contends that interpreting the leases to determine whether any disclaim the duty to market raises individual questions that should preclude a commonality finding. The district court rejected this argument. To disclaim the duty, the court said Oxy needed to show clear and express language authorizing a specific deduction. The court cited an example of a lease Cooper provided that explicitly disclaimed the marketing duty. That lease waived the duty "by using the word 'less' or 'minus' followed by specific naming of the costs that can be deducted." No Class Lease contained such specific language, so the court found that none disclaimed the duty to market. Thus, the court rejected Oxy's claim that whether any leases contained disclaimer language presented individual questions. On appeal, Oxy focuses on two aspects of the lease language that purportedly disclaim the duty to market: volume and pricing. As to volume, Oxy claims that some individual leases contain language allowing Oxy to pay royalty on less than the full volume of gas produced from a well. Oxy relies on phrases like "gas sold," "gas produced," and "gas marketed" in the leases. Those phrases, VOL. 58 COURT OF APPEALS OF KANSAS 353

Cooper Clark Foundation v. Oxy USA

Oxy argues, could allow royalty payments on less than the full volume of gas. Oxy also cites variations in lease types (proceeds, market value, and Waechter) as having that same effect. Whatever the language, Oxy's point is the same: interpreting Class Leases to determine whether any disclaim the duty to market presents individualized questions that destroy commonality. There are three problems with this argument. First, any volumetric language disclaiming the duty to market would apply only to Cooper's allegation about retainage fees. That allegation says that Oxy failed to pay royalty on the 25% NGLs and 50% Crude Helium retained by Amoco as an in-kind processing fee. Cooper's other allegations don't turn on the volume of gas on which Oxy paid royalty. So even if Oxy is correct that individual leases may have allowed Oxy to pay royalty on less than the full volume of gas produced from Class Wells, that conclusion would not affect commonality on Cooper's remaining claims. Second, even if the volume-language issue presented individual questions, it wouldn't preclude class certification. Oxy frames this issue as an objection to the district court's commonality finding, but it doesn't argue that the individual questions posed by volume language in leases would predominate over common questions. As we'll discuss later, Oxy's only predominance argument relates to its statute-of-limitations defense. So even if volume language in leases generates individual questions, the district court didn't abuse its discretion because Oxy has not shown that those questions would predominate. Third, individual questions wouldn't arise from Oxy's volume argument because the district court correctly found that no Class Leases disclaim the duty to market. We exercise unlimited review over that finding because interpreting a gas lease is a legal question. Fawcett, 302 Kan. at 359. As a matter of Kansas law, waiving the duty to market requires express language authorizing a specific deduction. Farrar, 43 Kan. App. 2d at 887-88. And as the district court noted, no Class Lease mentions Amoco's in-kind processing fee or authorizes Oxy to subtract that fee from royalty. So the district court properly rejected Oxy's lease-language argument about gas volume.

354 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA

Oxy's other disclaimer argument is based on pricing language in Class Leases. Oxy contends that the district court cannot decide whether paying royalty for Residue Gas on the Index Price violated lease duties classwide because it applies to only proceeds leases. Oxy appears to be arguing that paying royalty on the Index Price could never violate the duty to market under Waechter and market-value leases. In other words, Oxy says that the pricing allegation isn't a common question because it only applies to proceeds leases. Oxy cites no authority directly supporting this argument. The district court noted that it wasn't aware of any Kansas cases interpreting proceeds and market-value leases differently, as Oxy asked it to. On appeal, Oxy cites cases purporting to describe the difference between proceeds and market-value leases. But those cases don't say that market-value or Waechter leases authorize payment on the Index Price or that paying that price could never violate the duty to market for those lease types. The pricing argument has other problems too. Oxy frames it as a commonality issue, not a predominance issue. So even if we found that individual questions arose based on the differences between proceeds leases and other lease types, Oxy has not argued that those questions would predominate over common ones. And because the Index Price claim is only one of Cooper's three claims, success for Oxy on this argument wouldn't affect Cooper's remaining claims—it would simply mean that the Index Price claim presents individual questions that do not predominate over common ones. Nor would it defeat Cooper's Index Price claim because it at best relates to the duty to market. Oxy never argued that the lease- type differences somehow disclaimed the other duties Cooper alleged were violated by paying the Index Price (the duty of good faith and the duty to obtain the best price available). And both the volume and pricing arguments are common questions even if the district court abused its discretion in rejecting them. Again, the interpretation of gas leases is a question of law. Fawcett, 302 Kan. at 359. Whether any leases disclaim the duty to market is a question that the district court can answer classwide. On the volume argument, Oxy says some leases contain language allowing payment on less than the full volume of gas produced VOL. 58 COURT OF APPEALS OF KANSAS 355

Cooper Clark Foundation v. Oxy USA from Class Wells. The district court can interpret that language and decide classwide whether that's the case. On the pricing argument, the court can make a single finding on whether market value and Waechter leases allow payment on the Index Price. So neither of Oxy's language arguments preclude a commonality finding.

Cooper's claims can be litigated classwide without individualized evidence.

Oxy's second commonality argument is that Cooper's claims will require individualized evidence from each class member. Oxy relies on the United States Supreme Court's opinion in Tyson Foods, Inc. v. Bouaphakeo, 577 U.S. ___, 136 S. Ct. 1036, 194 L. Ed. 2d 124 (2016), for this argument. One issue in Tyson centered on the predominance requirement in Rule 23 of the Federal Rules of Civil Procedure. Under Rule 23(b)(3), federal district courts must find that "questions of law or fact common to class members predominate over any questions affecting only individual members." When interpreting that provision, the Court described individual questions as those requiring class members to "'present evidence that varies from member to member.'" 136 S. Ct. at 1045. But with common questions, "'the same evidence will suffice for each member to make a prima facie showing [or] the issue is susceptible to generalized, class-wide proof.'" 136 S. Ct. at 1045. The Tyson Court applied those definitions to a class action brought by employees at a food-processing plant alleging violations of the Fair Labor Standards Act of 1938. They claimed that Tyson didn't pay them overtime they had a right to receive under the Act for time they spent taking protective gear on and off. The parties agreed that whether that time was compensable work under the Act was a common question. But there were also questions affecting individual employees. Because the Act only covers employees who work more than 40 hours a week, each employee had to prove that they met the weekly hours requirement. Doing so proved difficult, however, because Tyson didn't keep records of time spent taking the protective gear on and off. Tyson argued that each individual employee would have to prove the amount of weekly time spent putting on and taking off the gear. According 356 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA to Tyson, that inquiry would predominate over questions common to the class. Without employer records, the employees relied on statistical evidence to show that they met the hours requirements. They provided a study estimating the average time an employee spent taking the protective gear on and off. The employees added that esti- mate to each class member's hours to determine whether class members met the 40-hours threshold. Because the employees' study provided a way to determine hours classwide, the Court held that Rule 23's predominance requirement was satisfied. 136 S. Ct. at 1048-49. Oxy says that Cooper's claims don't meet Tyson's definition of commonality. As Oxy sees it, Tyson focuses the individual-versus-common question inquiry on whether all class members will present identical evidence. For Oxy, the factual issues in Cooper's petition present individual questions because individual records exist for each Class Well. If each class member sued individually, Oxy says they would have to rely on evidence specific to their individual wells. And even if Cooper can present expert testimony about all class members, the expert would have to analyze each individual lease and evidence particular to each individual well. Thus, Oxy says Tyson supports its opposition to certification. We disagree because Cooper's claims fit Tyson's definition of commonality. To establish that Oxy breached duties in Class Leases, Cooper will present the same evidence for each class member because the claims center on Oxy's conduct. Cooper will rely on Oxy's documents showing the expenses it incurred putting Class Gas in a marketable condition, the royalty deductions it took, and the agreements it entered with Occidental Energy and Amoco. None of that information will vary for any individual class member—each member would put on the same evidence if they brought their claims individually. Cooper's three allegations highlight this point. Cooper first alleges that Oxy's affiliate-pricing scheme violates implied lease duties. To prove that claim, Cooper relies on Oxy's marketing agreement with Occidental Energy and records comparing the resale price with the Index Price. Oxy doesn't dispute that it paid royalty VOL. 58 COURT OF APPEALS OF KANSAS 357

Cooper Clark Foundation v. Oxy USA for Residue Gas to all class members on the Index Price, so litigating the affiliate-price allegation will not require individualized evidence. Nor will litigating Cooper's second allegation. Cooper says Oxy didn't pay royalty on the 25% of NGLs and 50% of Crude Helium retained by Amoco as an in-kind processing fee. That fee was established in Oxy's contract with Amoco and confirmed by Amoco's plant statements. Cooper's expert obtained the list of Class Wells subject to that fee by examining Oxy's payment data. Without relying on evidence from any individual class member, Cooper can show that Oxy processed all Class Gas at the Plant and that all gas Oxy sent to the Plant was subject to the in-kind fee. Like the first allegation, Cooper can present classwide evidence that Oxy didn't pay royalty on the gas retained by Amoco. The same goes for Cooper's third allegation. That allegation is about processing fees for Residue Gas and proving it will require Cooper to show that Oxy deducted those fees from all Class Gas. Cooper can do so with Oxy's payment data. It needs no evidence from individual class members. For all three allegations, then, common evidence can be presented for all class members— expert testimony and documents from Oxy and third-parties. Oxy also argues that class members will have to present individual evidence to prove damages. But Cooper presented enough evidence for the district court to find that Cooper could calculate damages classwide. Cooper's expert showed the ability to do so using Oxy's payment data. With that data, Cooper's expert calculated classwide damages for each month during the Class Period. Other courts have upheld similar damages calculations when challenged at the certification stage. See Naylor Farms, Inc. v. Chap- arral Energy, LLC, 923 F.3d 779, 798 (10th Cir. 2019). We follow their lead and do the same here. The district court did not err in finding that Cooper's claims were capable of classwide resolution without individual evidence from class members.

The dispute over interest on repaid Conservation Fees is a common question.

Oxy's final commonality argument is that the district court abused its discretion when it found that the parties' dispute over 358 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA interest on repaid Conservation Fees was a common question affecting all class members. The Kansas Corporation Commission assesses a Conservation Fee on first purchasers of gas produced in Kansas. See K.S.A. 2018 Supp. 55-176; K.A.R. 82-3-307(a). The Kansas Supreme Court held in 2011 that gas companies could not deduct Conservation Fees from royalty payments. Hockett v. The Trees Oil Co., 292 Kan. 213, Syl. ¶¶ 4-5, 251 P.3d 65 (2011). Af- ter Hockett, Oxy refunded class members Fees it had been deducting from royalties. But Oxy didn't pay any interest on refunded Fees. The parties dispute what statute applies to determine whether and at what rate class members should receive interest on refunded Conservation Fees. Cooper maintains that the general interest-rate statute applies. Under that statute, Oxy would owe each class member 10% annual interest on repaid Fees. K.S.A. 16-201. Oxy counters that specific statutes involving interest on oil and gas payments should apply. K.S.A. 55-1614; K.S.A. 55-1615. Under those statutes, interest does not accrue on "[e]xcluded payments" (payments totaling less than $100 annually). K.S.A. 55-1614(i). If Oxy deducted less than $100 in Conservation Fees from a class member's royalty payments in a given year, then that plaintiff wouldn't be entitled to any interest on repaid Conservation Fees for that year. Oxy reasons that Cooper's Conservation Fee claim presents individual questions because the district court would have to determine whether the excluded-payments exception applied to each class member by calculating the amount of annual Conservation Fees deducted from royalties during each year of the Class Period. Oxy cites two unpublished federal cases supporting its position. In both cases, Judge Melgren found that Oxy's statutes should apply because they were more specific. See Hitch, 2019 WL 3202257, at *9-11; Roderick v. XTO Energy, Inc., No. 08-1330- EFM-GEB, 2016 WL 4039641, at *10-12 (D. Kan. 2016) (unpublished opinion). We need not decide which statute applies. We agree with the district court that whether Oxy owes interest on repaid Conserva- tion Fees, and if so, how much, is a question common to all class members. The district court declined to answer that question at the VOL. 58 COURT OF APPEALS OF KANSAS 359

Cooper Clark Foundation v. Oxy USA certification stage because the parties had not fully briefed it. Oxy will get the chance to argue its position after this appeal because Cooper has included the Conservation Fees issue in the pending summary-judgment motion. The district court can weigh in on the Conservation Fees issue when it decides that motion after the parties have developed their positions more fully. The district court did not err in its decision that the Conservation Fees issue presents a common question supporting class certification, and that's all we need to decide now. The district court can always reevaluate certification if it later finds that Oxy is right about the interest-rate statute that applies. If determining whether each class member received more than $100 in each class year presents individualized questions, then the district court can consider whether those questions predominate over common ones. If so, it could amend the certification order as needed. See K.S.A. 2019 Supp. 60-223(c)(1)(C). Of course, if the district court finds that K.S.A. 16-201 applies, then no individual questions would arise because all class members would receive 10% annual interest on repaid Fees.

III. The District Court Did Not Abuse Its Discretion When It Found That Common Questions Predominate Over Issues In- volving Oxy's Statute-of-Limitations Defense.

Oxy next argues that its statute-of-limitations defense raises individual questions that predominate over common questions. For a class action certified under subsection (b)(3), as the district court did here, it must find that "questions of law or fact common to class members predominate over any questions affecting only individual members." K.S.A. 2019 Supp. 60-223(b)(3). Pre- dominance is a more demanding standard than commonality. Far- rar, 43 Kan. App. 2d at 875-76. It requires that "common questions must be more significant than individual ones, but it does not require that all issues in the suit have common answers and common evidence." O'Brien v. Leegin Creative Leather Prod., Inc., No. 108,988, 2014 WL 1362657, at *10 (Kan. App. 2014) (unpublished opinion). Instead, predominance tests whether the class is "sufficiently cohesive to warrant adjudication by representation." Farrar, 43 Kan. App. 2d at 875.

360 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA

We first examine the district court's claim that it wasn't required to consider Oxy's statute-of-limitations defense when making a predominance finding. The district court found that when deciding predominance, it considers only evidence relevant to the plaintiff's prima facie case, not to affirmative defenses like statute of limitations. It cited several authorities supporting that view. It quoted Tyson's statement that a district court can certify a (b)(3) class action "'even though other important matters will have to be tried separately, such as . . . affirmative defenses peculiar to some individual class members.'" 136 S. Ct. at 1045. And it cited a treatise on class actions under Rule 23. 2 Rubenstein, Newberg on Class Actions, § 4:57 (5th ed. 2012) ("Statute of limitations defenses—like damage calculations, affirmative defenses, and counterclaims—rarely defeat class certification."). We disagree with the district court on this point. Under Kan- sas law, the district court was free to consider evidence relevant to Oxy's statute-of-limitations defense when evaluating predominance. Nothing in the text of K.S.A. 2019 Supp. 60-223(b)(3) precludes consideration of affirmative defenses when deciding predominance. And no Kansas court has ever interpreted that provision as barring consideration of affirmative defenses. Nor do the sources cited by the district court support such a requirement. Those sources simply say that affirmative defenses rarely defeat certification because any individual issues arising from them "can be resolved during the damage phase of the case and need not preclude certification of liability issues." 2 Rubenstein, Newberg on Class Actions, § 4:57 (5th ed. 2012). So the district court should have considered evidence about affirmative defenses when deciding predominance. Actually, though, it did. Although it said it wasn't required to consider affirmative defenses, the district did consider whether Oxy's statute-of-limitations defense presented individual questions, and if so, whether those questions predominated over common ones. The court found that Oxy's defense was a common question because it could be resolved classwide. We must determine whether that was an abuse of discretion; we begin by taking a closer look at Oxy's defense.

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Cooper Clark Foundation v. Oxy USA

Oxy argues that the statute of limitations bars Cooper's claims. The limitations period on those claims is five years. K.S.A. 60- 511. Cooper states claims for royalty deductions taken from July 1, 2007, to April 30, 2014. Cooper didn't sue until 2017, so the statute of limitations may bar claims from 2007 to 2012. But Cooper can defeat that defense by proving equitable estoppel. In Oxy's view, proving equitable estoppel would predominate over any common questions because it would require individual evidence and testimony from each class member. Oxy cites four federal cases in support of this argument, but we do not find them persuasive. The first case denied certification under Rule 23 because "[a]pplication of the statute of limitations and the discovery rule involve[d] the consideration of facts unique to each class member." Doll v. Chicago Title Ins. Co., 246 F.R.D. 683, 687 (D. Kan. 2007). When the limitations period began to run in Doll turned on when class members discovered their claims. The discovery inquiry involved detailed fact-finding about whether and when each class member was on notice of the claims. Unlike the unique and individualized proof required in Doll, Cooper has presented common classwide evidence on equitable estoppel. Cooper's expert alleges that Oxy's contracts with Occi- dental Energy and the Processor are "confidential documents [that] royalty owners cannot access." From that evidence, Cooper alleges that no class member could have known that Oxy was deducting certain expenses because that information was not pub- licly available and members had no reason to ask about it. For that reason, this case is distinguishable from Doll. The next two cases Oxy cites involved decertification motions. In both cases, the district court certified the class and the defendant later asked the court to decertify based on a statute-of- limitations defense predominating over individual questions. Blair v. TransAm Trucking, Inc., 309 F. Supp. 3d 977, 1012 (D. Kan. 2018); O'Connor v. Boeing North American, Inc., 197 F.R.D. 404, 413-14 (C.D. Cal. 2000). The O'Connor court, for example, noted that when it first certified the class, the plaintiffs' allegations "supported the inference that no one could reasonably have learned of [d]efendants' alleged" conduct until after the limitations period ran. 197 F.R.D. at 414. Cooper has similarly alleged that 362 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA no class member could have known about Oxy's deductions because they were confidential. So Cooper may be able to prove equitable estoppel classwide. And if the district court later determines that Cooper cannot do so, then it can amend or decertify the class as necessary. See Chamberlain v. Farm Bureau Mut. Ins. Co., 36 Kan. App. 2d 163, 177-78, 137 P.3d 1081 (2006). Oxy's last case involved a class action filed by landowners against the operator of a chemical plant. The landowners alleged that contamination caused by the plant decreased their property values. LaBauve v. Olin Corp., 231 F.R.D. 632, 637-38 (S.D. Ala. 2005). The definition for one of the subclasses in the case included hundreds of landowners within a 20- to 25-kilometer area around the chemical plant. The court listed nine factors it would have to consider to determine whether each landowner could defeat a statute-of-limitations defense. That painstaking process precluded a predominance finding. 231 F.R.D. at 674-75. The painstaking fact-finding process described in LaBauve is unlike the simple statute-of-limitations inquiry here. Like the class in LaBauve, Cooper's class includes hundreds of members. Yet determining whether equitable estoppel applies to each of Cooper's class members will not require a multi-factor, individualized analysis. Cooper alleges that Oxy concealed the deductions it took. If that's true, then no class member could have timely discovered their claims. Like the rest of the federal cases Oxy cites, LaBauve is distinguishable. Oxy cited one more case in a letter submitted after briefing under Supreme Court Rule 6.09 (2020 Kan. S. Ct. R. 39), In re Rail Freight Fuel Surcharge Antitrust Litig., 934 F.3d 619 (D.C. Cir. 2019). Like the other cases Oxy cited, Rail Freight is distinguishable. In Rail Freight, a class of 16,065 shipping companies sued under federal anti-trust laws for damages caused by a price-fixing conspiracy among several freight railroads. Proving these federal claims required each shipping company to prove both an injury to its business and a causal link between that injury and the price- fixing conspiracy. Without common proof of these elements, the VOL. 58 COURT OF APPEALS OF KANSAS 363

Cooper Clark Foundation v. Oxy USA shipping companies would not be able to meet Rule 23's predominance requirement. So they needed a way to prove classwide that the price-fixing conspiracy injured each company. To do so, they relied on an expert's regression model that provided an estimated damage amount for each company. The model controlled for seven variables used to calculate railroad prices, attempting "to isolate price increases attributable to the alleged conspiracy." 934 F.3d at 621. But the model returned thousands of false positives. Although the companies claimed that they were all harmed by the price-fixing conspiracy, the model refuted that claim. It said that 2,037 (12.7%) of the companies suffered no losses. So the district court would have had to determine individually whether those 2,037 companies were injured by the conspiracy. That individualized inquiry for thousands of companies would predominate over common questions, so the court affirmed the denial of class certification. 934 F.3d at 624-25. Oxy cites Rail Freight as making clear "that even where the plaintiff intends to present class-wide evidence through an expert, the plaintiff must show that common issues predominate over individual issues." True enough, but the district court correctly found that the statute-of-limitations defense presented a common, classwide question. Unlike the Rail Freight plaintiffs, Cooper doesn't rely on statistical models to show liability. Cooper relies instead on Oxy's data showing the expenses it deducted from royalties. Oxy admits that it took those deductions but says they didn't violate any implied duties in Class Leases. But if they do, then every class member suffered an injury. There's no comparable problem in determining liability classwide; there's no potential that any class members were uninjured if Cooper wins its arguments about marketability. And the district court found that to the extent litigating the equitable estoppel issue presented individual questions, those questions would not predominate. The district court correctly found that Cooper could litigate the statute-of-limitations defense classwide with evidence from its expert that no class member could have known about the deductions. That evidence supports an inference of equitable estoppel classwide. So the district court did not abuse its discretion in finding that Oxy's defense was a common question.

364 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA

Even if the statute-of-limitations defense had presented individual questions, the district court also found that those questions would not predominate. That finding was supported by the court's observation that in Fawcett, a statute-of-limitations defense had been tried classwide on remand. Oxy says the district court should not have relied on Fawcett because there may have been circumstances there that allowed classwide resolution of the limitations defense that are not present here. But Oxy doesn't say what those circumstances are; we need not speculate about what they might be. The district court didn't abuse its discretion in finding that any individual questions posed by Oxy's limitations defense would not predominate over common questions. Oxy raised one last point on predominance in its reply brief. Cooper's brief argued that even if the statute of limitations bars several years of recovery for class members, it doesn't bar claims within the limitations period. Oxy frames that argument as Cooper sacrificing the bulk of class members' potential claims (because most are outside the limitations period) to obtain certification. Oxy says this raises questions about the adequacy of Cooper as a class representative. Adequacy of representation is one of the four prerequisite requirements for class certification. K.S.A. 2019 Supp. 60-223(a)(4). Oxy didn't argue adequacy of representation in its original brief; it raised the issue for the first time in the reply brief. Cooper had no opportunity to respond, so we need not consider Ox's adequacy argument. Sierra Club v. Mosier, 305 Kan. 1090, Syl. ¶ 19, 391 P.3d 667 (2017); see Supreme Court Rule 6.05 (2020 Kan. S. Ct. R. 36).

IV. The District Court Rigorously Analyzed the Requirements for Class Certification.

The last issue Oxy raises relates to the district court's treatment of expert testimony. Oxy argues that the district court failed to rigorously analyze the statutory requirements for class certification because it ignored problems with Cooper's expert report and failed to resolve Oxy's motion to strike that report before certifying the class. The district court abuses its discretion when it certifies a class action without rigorously analyzing the statutory requirements. VOL. 58 COURT OF APPEALS OF KANSAS 365

Cooper Clark Foundation v. Oxy USA

Farrar, 43 Kan. App. 2d 871, Syl. ¶¶ 3-4. But a rigorous analysis doesn't mean the district court must "conduct a mini-trial with extensive fact-finding before certifying . . . a class." Critchfield, 293 Kan. at 293. It simply means that the court must find that the plaintiff has enough evidence to conclude that certification is appropriate given the statutory requirements. Critchfield, 293 Kan. at 295. Oxy argues that the district court failed to conduct a rigorous analysis in two ways, both of which relate to its treatment of expert testimony. First, Oxy claims that the district court didn't rigorously analyze the certification requirements because it ignored several issues Oxy raised with Cooper's expert. Oxy raised those issues in a motion to strike included within its motion opposing certification. The motion to strike said that Cooper's expert ignored important differences in lease language when calculating damages and that he failed to account for factors affecting the marketability of Class Gas. Oxy repeats these arguments on appeal and says that the district court should have addressed them. According to Oxy, these flaws made the expert's classwide-damage calculations unreliable. Oxy's arguments against Cooper's expert go to the merits, not certification. Given our earlier conclusion that Class Gas was unmarketable until it was processed, Cooper's expert couldn't have erred in failing to account for the marketability factors cited by Oxy (because they are the same pre-processing factors we rejected earlier). As for Oxy's other criticisms, Cooper and Oxy both presented experts who analyzed the parties' claims and calculated potential damages. The district court did- n't conclusively adopt either party's expert testimony; it merely found that Cooper's expert showed an ability to calculate classwide damages and address other issues common to all class members. If the case goes to trial, the fact-finder may accept Oxy's criticisms of Cooper's expert. But at the certification stage, the district court needed only to find that Cooper had presented enough evidence to satisfy the statutory requirements. The district court did not abuse its discretion in finding that Cooper had done so. Second, Oxy argues that the district court didn't conduct a rigorous analysis because it certified the class without ruling on Oxy's pending motion to strike Cooper's expert. Cooper says the court didn't have to rule on the motion because Oxy didn't argue it at the hearing on the certification motion. The gist of Cooper's argument is that Oxy invited any error because it agreed 366 COURT OF APPEALS OF KANSAS VOL. 58

Cooper Clark Foundation v. Oxy USA that the district court should wait to rule on the expert motion until after certification. But the transcript from the hearing makes quick work of this argument. Oxy's counsel explicitly asked the district court at the hearing to consider the expert motion along with the certification motion. So Oxy didn't invite the district court to delay ruling on its motion until after certification. Even so, the district court implicitly ruled on Oxy's motion by making detailed findings in the certification order addressing the substance of the motion. For example, the motion claimed that Cooper's expert incorrectly assumed that Kansas law requires Oxy to pay royalties based on the best available price. The certification order directly addressed that point with citations to Oxy's motion. The court found that no Class Lease contained language disclaiming the best-price duty and that whether Oxy breached that duty was a common question. The court also addressed Oxy's claim that Cooper's expert wrongly assumed the point at which gas becomes marketable. It found that none of Oxy's general marketability factors affected the marketability of Class Gas. The district court implicitly denied Oxy's motion by re- sponding to the substantive claims in that motion in the certification order. We don't think that the district court would have committed error by not ruling—implicitly or explicitly—on Oxy's motion. Oxy argues for a procedural rule that the district court had to rule on the motion to strike before certifying the class. Yet the statute for class certification, K.S.A. 2019 Supp. 60-223, doesn't impose such a requirement. Nor do the cases interpreting that section. What those cases do tell us is that the district court need not "conduct a mini-trial with extensive fact- finding before certifying a class." Critchfield, 293 Kan. 285, Syl. ¶ 2. In short, the district court conducted a rigorous analysis when it certified Cooper's class action. The court issued more than 20 pages of findings and showed that it had thoughtfully considered the parties' arguments. The court did not have to oversee a mini-trial on the battle- of-the-experts at this stage; it merely had to determine that Cooper presented enough evidence to satisfy the class-action requirements. Be- cause the court did so, it did not abuse its discretion.

We affirm the district court's judgment. VOL. 58 COURT OF APPEALS OF KANSAS 367

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs

___

No. 120,472

UNIVERSITY OF KANSAS HOSPITAL AUTHORITY, Appellee/Cross-appellant, v. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, KANSAS, Defend- ant/Cross-appellee, and CITY OF OTTAWA, KANSAS, Appel- lant/Cross-appellee.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Medical Expenses for Persons in Custody—Statutory Requirement Agencies Pay Expenses. K.S.A. 2019 Supp. 22-4612 requires certain government agencies to pay the medical expenses incurred by persons in their custody.

2. SAME—Medical Expenses for Persons in Custody—Government Agencies' Duty to Treat Persons in Custody Humanely. K.S.A. 2019 Supp. 22-4612 conveys the legislature's intent to hold government agencies liable for medical costs incurred for the treatment people receive while in their custody. This statute, in conjunction with K.S.A. 22-4613, is rooted in the principle that government agencies have a duty to treat people in their care humanely.

3. SAME—Medical Expenses for Persons in Custody— Determination of Ob- ligation to Pay Expenses. The test for determining whether a government agency has an obligation to pay a person's medical expenses is whether a person is in the agency's custody when the decision was made to obtain medical treatment.

4. SAME—Person in Custody Not Always Formally Arrested—Factual De- termination. A formal arrest is not always necessary to show a person is in custody. Instead, whether a person is in custody turns on the facts of each case.

5. SUMMARY JUDGMENT—Review of Summary Judgment Motion by Dis- trict Court—Standards. A party seeking summary judgment must show that there are no disputed issues of material fact and that judgment may therefore be entered as a matter of law—essentially, that there is nothing the fact- finder could decide that would change the outcome. The district court's task does not change simply because all parties have filed summary-judgment motions on stipulated facts. Each motion must be separately and independently reviewed under these summary-judgment standards.

6. POLICE AND SHERIFFS—Law Enforcement Officer Has Statutory Duty to Arrest For Felonious Traffic Offenses. Under K.S.A. 8-2104(d), when a 368 COURT OF APPEALS OF KANSAS VOL. 58

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs

person is stopped by law enforcement for felonious traffic offenses, law enforcement has a legal duty to arrest the offender—to take the offender into custody and bring him or her before a judge. The officer conducting the stop has no discretion whether to take the offender into custody.

Appeal from Wyandotte District Court; ROBERT P. BURNS, judge. Opinion filed June 26, 2020. Affirmed in part, reversed in part, and remanded with directions.

David Cooper, of Fisher, Patterson, Sayler & Smith, LLP, of Topeka, and Jeannette L. Wolpink and Michael K. Seck, of the same firm, of Overland Park, for appellant/cross-appellee.

Jennifer Martin Smith, of Alderson, Alderson, Conklin, Crow & Slinkard, L.L.C., of Topeka, for appellee/cross-appellant.

Patric S. Linden, Kevin D. Case, and Cory R. Buck, of Case Linden P.C., of Kansas City, Missouri, for defendant/cross-appellee.

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

WARNER, J.: This case stems from a disagreement over who should pay the hospital bills a man incurred when he was injured in a fiery crash after fleeing from Ottawa police officers. Kansas statutes require certain government agencies to pay for the medical care a person receives while in their custody. The district court, based on stipulated facts, granted summary judgment in favor of the hospital in its claim against the City of Ottawa, finding as a matter of law that the police officers would have been required to arrest the man but for his injuries. We must decide whether the undisputed facts show the injured man was in the city's custody when he received his hospital treatment. After reviewing the parties' allegations and arguments, we conclude there are unanswered factual questions that prevent us from deciding the billing dispute between the city and the hospital. We therefore reverse the district court's grant of summary judgment in favor of the hospital and remand the case to resolve these lingering questions. We also affirm the district court's judgment in favor of another government entity, the Franklin County Board of County Commissioners, as the county is not responsible to pay the injured man's medical expenses in this case.

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University of Kansas Hospital Authority v. Board of Franklin County Comm'rs

FACTUAL AND PROCEDURAL BACKGROUND

On an April evening in 2014, Ottawa Police Sergeant A.J. Schmidt observed a man speeding through Ottawa in a Ford Ex- pedition without its headlights on. Sergeant Schmidt recognized the driver, who had been arrested the previous evening for drug charges and had been released earlier in the day. Sergeant Schmidt radioed another Ottawa police officer to confirm the man's driver's license had been suspended. The sergeant then attempted to pull the Expedition over. The driver did not stop. Instead, he acceler- ated, leading Sergeant Schmidt and other officers on a high-speed chase through the city. Sergeant Schmidt later agreed this event was "a felony fleeing and [e]luding situation." The man drove northbound on Old US-59 Highway. He then entered US-59 Highway, driving the wrong way up the exit-ramp, and headed north toward the Ottawa city limit, still without headlights. Sergeant Schmidt told the officers to continue to pursue the driver until Stafford Road, which is near Ottawa's northern city limit. The Ottawa officers observed the Expedition exit the highway via the southbound on-ramp at Stafford Road. When they exited the highway at Stafford Road via the proper ramp, they no longer could see the vehicle. Several Franklin County sheriff's deputies had overheard the chase on their radios and apparently began looking for the vehicle around the area where the Ottawa officers had lost sight of it. It did not take long before a Franklin County deputy found a crashed vehicle, fully engulfed in flames, in a ditch near the intersection of US-59 and Stafford Road. The Franklin County deputy ap- proached the burning car and heard a voice calling for help. The deputy immediately radioed for emergency assistance. The deputy found the car's driver lying on the ground, suffer- ing from what appeared to be fractures of all four of his limbs. Sergeant Schmidt, who had by that time arrived at the crash scene, and several Franklin County deputies began moving the driver away from the flaming vehicle and surrounding grass fire. When the EMS technicians arrived, they began assisting the driver. Knowing the driver had been recently arrested on drug charges, Sergeant Schmidt asked the man if he had taken any 370 COURT OF APPEALS OF KANSAS VOL. 58

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs drugs the health care providers needed to be aware of; he responded that he had taken methamphetamine earlier that day. None of the law enforcement officers at the scene searched the driver. He also was never formally placed under arrest, though the parties later stipulated that Sergeant Schmidt had the authority to arrest the driver at the scene of the crash even though it was outside the Ottawa city limits. (Sergeant Schmidt later testified that he advises Ottawa police officers not to take a suspect into custody if that individual needs medical care so the city does not have to pay the medical bills.) The driver was transported to the Univer- sity of Kansas Medical Center by emergency helicopter. The driver remained in the hospital for 10 days. During that time, he was placed on a police-hold by Wyandotte County for several outstanding warrants in that jurisdiction and guarded by Wyandotte County officers. Neither the City of Ottawa nor Frank- lin County placed a hold on him while he was in the hospital. The man's injuries included two broken legs, a broken ankle, a broken arm, a broken wrist, a collapsed lung, and nine fractured ribs. He did not have any health insurance and did not receive Medicaid assistance. The total amount billed by the hospital for his treatment and care was $235,498.22. At the time, the Medicaid reimbursement rate was 30.5% of this billed amount, for a total of $71,826.95. Once he was discharged from the hospital, the man was immediately taken to the Wyandotte County jail based on his outstanding warrants (unrelated to the events that landed him in the hospital). Ottawa police officers interviewed him while he was at the Wyandotte County jail, asking about the car chase and ensuing crash. He had little to no memory of the events surrounding his flight from the Ottawa police, the crash, and the treatment he received at the wreck. He was ultimately charged with fleeing and eluding under K.S.A. 8-1568. The University of Kansas Hospital Authority (the Hospital) later filed suit against the City of Ottawa (the City) and Franklin County's Board of County Commissioners (the County), alleging one or both of these agencies were required to pay the man's hospital bill under K.S.A. 22-4612(a). This statute requires certain VOL. 58 COURT OF APPEALS OF KANSAS 371

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs government agencies to pay the medical expenses a person incurs when he or she is in custody. The Hospital also initially sued the Wy- andotte County Board of County Commissioners but subsequently dismissed its claims against that entity. The parties conducted discovery, taking depositions of many of the law enforcement officers who had participated in the chase or the rescue. The parties then stipulated to several facts regarding the night of the crash, including that Sergeant Schmidt had the authority to arrest the driver the night of the crash but did not search him or formally place him under arrest. All three parties filed motions for summary judgment. After considering the parties' arguments, the district court determined, as a matter of law, that the driver was in the City's custody under K.S.A. 22- 4612(a) when the decision to obtain medical treatment was made. The district court explained that, but for the driver's injuries, the Ottawa police officers would have been required to arrest him after the car chase—as a result of his fleeing and eluding those officers. The court therefore granted summary judgment in the Hospital's favor against the City. But because the County deputies were not involved in the chase, did not observe the driver committing any felonies, and did not know who the driver was, the court granted summary judgment to the County on the Hospital's remaining claim. The City appealed the district court's adverse summary-judgment ruling, and the Hospital cross-appealed the court's grant of summary judgment in favor of the County.

DISCUSSION

K.S.A. 2019 Supp. 22-4612 requires certain government entities to pay the costs of medical care incurred by persons in their custody. That statute directs, subject to some exceptions, that "a county, a city, [or] a county or city law enforcement agency . . . shall be liable to pay a health care provider for health care services rendered to persons in the custody of such agencies." K.S.A. 2019 Supp. 22-4612(a). In such instances, the government entity must pay "the lesser of the actual amount billed by [the] health care provider or the medicaid rate" for the billed treatment. K.S.A. 2019 Supp. 22-4612(a). The Kansas Supreme Court has explained that K.S.A. 22-4612 conveys the legislature's intent to hold government agencies liable 372 COURT OF APPEALS OF KANSAS VOL. 58

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs for medical costs incurred for the treatment people receive while in their custody. University of Kan. Hosp. Auth. v. Board of Comm'rs of Unified Gov't, 301 Kan. 993, 999-1000, 348 P.3d 602 (2015). This statute, in conjunction with K.S.A. 22-4613, is rooted in the principle that government agencies have a duty to treat people in their care humanely. See University of Kansas Hosp. Auth. v. Board of Wabaunsee County Comm'rs, 299 Kan. 942, 952, 327 P.3d 430 (2014); Pfannen- stiel v. Doerfler, 152 Kan. 479, 483, 105 P.2d 886 (1940); see also K.S.A. 22-4613(a) ("A law enforcement officer having custody of a person shall not release such person from custody merely to avoid the cost of necessary medical treatment while the person is receiving treatment from a health care provider," except in certain circumstances.). The test for determining whether this payment obligation arises is whether a person is in the agency's custody when the decision was made to obtain medical treatment. University of Kan. Hosp. Auth., 301 Kan. at 1006.

1. Custody is a fact-dependent question and broader than formal arrest.

The definition of "custody" has proved somewhat elusive. Black's Law Dictionary defines custody as "[t]he care and control of a thing or person for inspection, preservation, or security." Black's Law Diction- ary 483 (11th ed. 2019); Black's Law Dictionary 467 (10th ed. 2014). And Webster's defines custody as "a guarding or keeping safe; care; protection; guardianship." Webster's New World College Dictionary 365 (5th ed. 2014). In University of Kan. Hosp. Auth., our Supreme Court reviewed the legislature's use of "custody" in chapter 22 of the Kansas Statutes and observed that "[a]t the least, under the plain meaning of the statutes, a person is in custody when under arrest." 301 Kan. at 1003. Com- pare K.S.A. 2019 Supp. 22-2202(i) (defining custody) with K.S.A. 2019 Supp. 22-2202(d) (defining arrest). But the court also found that a person may still be in "custody" under K.S.A. 22-4612(a) in the absence of physical restraints, posted guards, or even a formal arrest. See University of Kan. Hosp. Auth., 301 Kan. at 1004. In other words, an "arrest might not always be necessary." 301 Kan. at 1006. VOL. 58 COURT OF APPEALS OF KANSAS 373

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs

In fact, Kansas courts have long recognized that the definitions of "custody" found throughout the Kansas statutes show the term should be read broadly. See State v. Hinkle, 31 Kan. App. 2d 416, 417, 65 P.3d 1058 (2003). For example, the statutory sections governing "escape from custody" "encompass[] arrest or any other detention for law enforcement purposes." 31 Kan. App. 2d 416, Syl. ¶ 2 (citing K.S.A. 2002 Supp. 21-3809[b][1]). Other cases have found that a person may be in custody, even if not arrested, when "there are significant restraints on his freedom of movement which are imposed by some law enforcement agency." State v. Louis, 240 Kan. 175, Syl. ¶ 2, 727 P.2d 483 (1986); see also Louis, 240 Kan. at 183 (substantial competent evidence supported conclusion that a person was in custody when he had a blood sample taken at the hospital at the request of police officers). And Kansas caselaw is awash with examples of indigent criminal offenders who were never formally arrested yet were still in custody for purposes of determining agencies' payment responsi- bilities. See Allen Memorial Hosp. v. Board of Butler County Comm'rs, 12 Kan. App. 2d 680, 685, 753 P.2d 1302 (1988) (intoxicated person was in custody when deputy accompanied him in an ambulance to the hospital); Dodge City Med. Center v. Board of Gray County Comm'rs, 6 Kan. App. 2d 731, 732-33, 634 P.2d 163 (1981) (individual shot by sheriff during the commission of a felony and taken to the hospital was in custody because "[h]ad he not been injured there is no question but that pursuant to duty the sheriff would have taken him to jail"); Mt. Carmel Medical Center v. Board of County Commissioners, 1 Kan. App. 2d 374, 379, 566 P.2d 384 (1977) (sheriff's deputy had statutory duty to obtain custody of escaped prisoner and thus "custody had been reestablished as a matter of law prior to the prisoner's being placed in the ambulance and transported to the hospital"). Although these cases were decided before the enactment of K.S.A. 22-4612, our Kansas Supreme Court has indicated they are instructive in determining what "custody" means for purposes of that statute. University of Kan. Hosp. Auth., 301 Kan. at 1004-06. In Dodge City Med. Center, a sheriff's deputy came across a man committing a burglary. When the deputy demanded the man to surrender, the burglar opened fire. The deputy then returned fire 374 COURT OF APPEALS OF KANSAS VOL. 58

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs and shot the burglar. The deputy then called an ambulance, and the man was taken to the hospital for treatment. "No formal arrest was made" at the time of the shooting "or at any time during [his] three-week stay in the hospital, nor was he under guard." 6 Kan. App. 2d at 731. The sheriff's department arrested him when he was discharged from the hospital, and the man was charged with various crimes relating to the burglary and shooting. The district court held a trial on stipulated facts and ultimately found the man was in custody when he went to the hospital. This court affirmed, finding substantial competent evidence supported the district court's ruling. The Dodge City Med. Center court explained that the burglar "was apprehended in the commission of a felony. Had he not been injured there is no question but that pursuant to duty the sheriff would have taken him to jail and not to the hospital." 6 Kan. App. 2d at 732. The court continued:

"Had the deputy said 'you're under arrest' instead of merely calling for [the burglar's] surrender, or had the sheriff uttered those words any time before committing him to the doctor's care, the fact of custody would be clear. We cannot avoid reaching the same conclusion simply because those words, implied by all the circumstances, were not actually spoken." 6 Kan. App. 2d at 733.

More recent cases have similarly recognized that a formal arrest is not always necessary to show a person is in custody. In- stead, whether a person is in custody turns on the facts of each case. Thus, in Stormont-Vail Healthcare v. Board of Jackson County Comm'rs, No. 117,650, 2018 WL 2170117 (Kan. App.) (unpublished opinion), rev. denied 309 Kan. 1354 (2018), this court concluded that a man was in custody after fleeing from a law enforcement officer and eventually surrendering, even though he was not arrested before he received medical treatment for his injuries from the flight. A year later, we came to a different conclusion in a case involving the same parties but vastly different facts—finding a person was not in custody when an attempted burglar was shot by a homeowner, ran away, and was eventually apprehended by law enforcement (though the officers did not witness the attempted break-in). Stormont-Vail Healthcare v. Board of Jackson County Comm'rs, No. 118,428, 2019 WL 1303580 (Kan. App. 2019) (unpublished opinion). VOL. 58 COURT OF APPEALS OF KANSAS 375

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs

Under this line of cases, the fact that neither the County nor the City law enforcement officers formally arrested the driver here for his felonious conduct does not end our enquiry. Instead, we must determine whether the stipulated facts in this case support the district court's summary-judgment rulings.

2. Unresolved factual questions preclude summary judgment in favor of the Hospital.

The instant case was presented on competing motions for summary judgment. The district court, having reviewed the un- controverted facts, found the County deputies "were not involved in the chase," "did not observe any of the felonies committed," "were not aware if this individual was the driver who had committed those felonies," and "did not restrain" him. Thus, the court found the man was not in the County's custody. But because Ser- geant Schmidt and the other Ottawa police officers observed the driver of the Expedition engaging in felonious fleeing and eluding of law enforcement officers, the court found they had a duty to arrest him and "would have arrested him but for the fact that he was injured." The court therefore found the driver was in the City's custody for purposes of K.S.A. 21-4612(a). A party seeking summary judgment must show that there are no disputed issues of material fact and that judgment may therefore be entered as a matter of law—essentially, that there is nothing the fact-finder could decide that would change the outcome. K.S.A. 2019 Supp. 60-256(c)(2); Shamberg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900, 220 P.3d 333 (2009). To fend off summary judgment, the opposing party must respond by point- ing to evidence casting doubt on a material factual representation made in support of that motion. 289 Kan. at 900. If the opposing party does so, the motion for summary judgment should be denied, leaving the fact-finder to resolve the factual dispute. 289 Kan. at 900. In ruling on a summary-judgment motion, the district court must view the evidence in the light most favorable to the opposing party, giving that party the benefit of every reasonable inference drawn from the evidentiary record. 289 Kan. at 900. The district court's task does not change simply because all parties have filed 376 COURT OF APPEALS OF KANSAS VOL. 58

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs summary-judgment motions on stipulated facts—each motion must be separately and independently reviewed under these summary-judgment standards. See Wheeler v. Rolling Door Co., 33 Kan. App. 2d 787, 790-91, 109 P.3d 1255 (2005). On appeal, we apply the same framework, reviewing each summary-judgment decision de novo. Martin v. Naik, 297 Kan. 241, 246, 300 P.3d 625 (2013). And to the extent our analysis requires the examination, interpretation, and assimilation of various Kansas statutes, we similarly exercise unlimited review. University of Kansas Hosp. Auth., 299 Kan. at 951. With these principles in mind, we first consider the district court's grant of summary judgment for the County. When the City appealed its adverse judgment, the Hospital cross-appealed the court's decision that the driver had not been in the County's custody. The Hospital initially argued that summary judgment was not proper, as "both defendants had personnel on the scene" and "both had the authority to arrest." But during oral argument, the Hospital expressly waived its cross-appeal, indicating that going forward it would be focusing on the City's arguments. In light of this concession, we do not discuss in great detail the Hospital's previous arguments concerning the court's grant of summary judgment to the County. We only note that—as the district court found—it was undisputed that the County deputies did not witness any of the crimes committed by the driver of the Ex- pedition, did not participate in the chase, and did not have any knowledge of his identity or previous arrest history, beyond what someone may have heard on the radio. While it is true that the County deputies had the authority to arrest him once they learned of his identity and conduct, discretionary authority is not the same as a legal duty to arrest (giving rise to implied custody). See Stor- mont-Vail Healthcare, 2019 WL 1303580, at *6. In short, the undisputed facts demonstrate the driver was not in the County's custody when medical care was sought. The County had no responsibility to pay the medical bills he incurred, and the district court correctly granted summary judgment in its favor. Whether the driver was in the City's custody presents a more difficult question. The Hospital correctly notes that there are many VOL. 58 COURT OF APPEALS OF KANSAS 377

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs facts that might point to such a conclusion. After all, the parties stipulate that Sergeant Schmidt observed the driver speeding through town without headlights, though it was evening. Sergeant Schmidt recognized the driver and confirmed the driver had a suspended license; the sergeant and other City police officers pursued the driver in a dangerous chase. The officers followed the driver to his final exit, though they did not observe the crash. Sergeant Schmidt arrived at the scene of the crash, arguably still in pursuit of the felonious actor and close enough in time that he was able to assist the deputy in removing the driver from the fire. In other words, there are certainly facts in this case—analogous to those discussed in Dodge City Med. Center and our 2018 Stormont-Vail Healthcare decision—that tend to show the driver was in the City's custody. At the same time, the City points to numerous facts and inferences that would contradict such a finding. The City argues that the police officers lost sight of the Expedition when it exited (via an on-ramp) US-59 Highway. The parties stipulated that these officers shortly thereafter "discontinued the pursuit" (although Ser- geant Schmidt continued to the scene of the crash). And the driver was never formally arrested or physically restrained, nor did he expressly surrender. The stipulated facts do not resolve these factual disagreements; rather, their resolution would require more detailed factual development, assessment of witnesses' credibility, and weighing of the evidence—determinations improper at the summary-judgment stage. At the summary-judgment hearing, the district court acknowledged the conflicting facts and inferences argued by both parties. But it concluded the City's potential liability did not require resolution of these contested facts because the Ottawa police officers had a legal duty under K.S.A. 8-2104 to arrest the driver after wit- nessing the driver's dangerous flight from law enforcement. In his deposition, Sergeant Schmidt acknowledged the driver's conduct at the time presented a "felony fleeing and [e]luding situation." Certainly, based on the facts before us, we readily appreciate the sergeant's judgment that the driver's actions would fall within the scope of K.S.A. 8-1568(b)(1). See K.S.A. 2019 Supp. 8-1568(c)(2) (defining such offenses as severity level 9, person 378 COURT OF APPEALS OF KANSAS VOL. 58

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs felonies). In these circumstances, K.S.A. 8-2104(d) requires an offender, once stopped by law enforcement, be taken into custody and before a judge:

"When any person is stopped by a law enforcement officer and is to be charged with violation of any statute defining a traffic violation which is a felony, the person shall be taken without unnecessary delay before a judge of the district court as specified in subsection (d) of K.S.A. 8-2106, and amendments thereto."

Accord K.S.A. 8-2104(a)(2) (similarly requiring a person be taken into custody and before a judge when a person is stopped for and is to be charged with misdemeanor violations "of K.S.A. 8-1567 and 8-1568"). Under K.S.A. 8-2104(d), when a person is stopped by law enforcement for felonious traffic offenses, the law enforcement officer has a legal duty to arrest the offender—to take the offender into custody and bring him or her before a judge. That is, as in other instances where we have found implied custody without a formal arrest, the officer conducting the stop has no discretion whether to take the offender into custody. See Allen Memorial Hosp., 12 Kan. App. 2d at 685; Dodge City Med. Center, 6 Kan. App. 2d at 732-33; Mt. Carmel Medical Center, 1 Kan. App. 2d at 379; see also Stormont-Vail Healthcare, 2018 WL 2170117, at *2 (noting K.S.A. 8-2104[a][2] required the officer to take the offender into custody). This court addressed the misdemeanor component of this statute—K.S.A. 8-2104(a)(2)—in our 2018 Stormont-Vail Healthcare decision. In that case, we concluded the police officer had a legal duty under the statute to take the offender into custody once he had surrendered, and the only reason the officer did not do so was to allow the offender to receive medical treatment. But while we can appreciate the similarity between the facts in that case and those presented here, there is at least one legally important distinction: In the 2018 case, the parties stipulated that the offender had surrendered to the police officer. The offender was therefore stopped by law enforcement, triggering the officer's legal obligation to take the offender into custody under K.S.A. 8- 2104. Here, we have no such stipulation. Rather, although the parties agreed on numerous facts, the arguments before the district VOL. 58 COURT OF APPEALS OF KANSAS 379

University of Kansas Hospital Authority v. Board of Franklin County Comm'rs court and on appeal evince a genuine factual disagreement regarding whether Sergeant Schmidt effectively stopped the driver when he arrived at the crash. Without resolving this question, we cannot determine whether the sergeant had any legal duty to take the driver into custody under K.S.A. 8-2104(d). For these reasons, the district court erred when it granted summary judgment in favor of the Hospital. Although all parties presented this case as one that could be decided on the stipulated facts, the parties' stipulation does not resolve the two central questions here—whether the driver was "stopped" within the meaning of K.S.A. 8-2104(d) and, if not, whether the driver was otherwise in the City's custody when he was taken to the Hospital. The case must be remanded to resolve these factual disputes. We therefore reverse the district court's grant of summary judgment on the Hospital's claim against the City and remand the case for further proceedings as to that claim. We affirm the court's summary judgment in favor of the County.

Affirmed in part, reversed in part, and remanded with directions. 380 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison

___

No. 120,903

STATE OF KANSAS, Appellee, v. ROBERT JAMES ROBISON III, Appellant.

___

SYLLABUS BY THE COURT

1. APPEAL AND ERROR—Constitutional Issue Deemed Waived if Not Raised Be- fore District Court—Appellate Review. Generally, a constitutional issue not raised before the district court is deemed waived or abandoned. Nevertheless, appellate courts can review issues presented on appeal where: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the district court is right for the wrong reason. However, even if an exception would support a decision to review a new claim, appellate courts have no obligation to do so.

2. CONSTITUTIONAL LAW—Right to Jury Trial is A Constitutional Right. The right to a jury trial is a right under both Section 5 of the Kansas Constitution Bill of Rights and under the Sixth Amendment to the United States Constitution.

3. CRIMNIAL LAW—Sentencing—Restitution Ordered as Part of Sentence or Condition of Probation. K.S.A. 2017 Supp. 21-6604(b)(1) grants a district court the authority to order a convicted defendant to pay restitution as part of the sentence. Similarly, K.S.A. 2017 Supp. 21-6607(c)(2) grants a district court the authority to order restitution payments as a condition of probation. Both statutes provide that the restitution amount must include the victim's damage or loss caused by the defendant's crime, unless the district court finds compelling circumstances that would render a plan of restitution to be unworkable.

4. CRIMINAL LAW—Sentencing—Restitution—Purpose. Restitution is a form of restorative justice. It is intended to restore the victims of crime to the position they found themselves in prior to a defendant's commission of the offense that caused the injury or damage. Although part of the criminal sentence, restitution is intended to fairly compensate the victims of crime who actually suffered an injury or damage rather than the government.

5. SAME—Restitution—Imposition Not a Violation of Section 5. The imposition of criminal restitution by a district judge under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) does not violate Section 5 of the Kansas Consti- tution Bill of Rights.

6. SAME—Sentencing—Restitution—Statutory Authority for Imposition by District Court. Neither K.S.A. 2017 Stupp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21- 6607(c)(2) impose a mandatory minimum amount or a mandatory maximum VOL. 58 COURT OF APPEALS OF KANSAS 381

State v. Robison

amount that a convicted defendant must pay to reimburse a victim of crime. Both statutes base the maximum amount of restitution on the actual damage or loss suffered by the victim as a result of the defendant's crime. Likewise, both statutes grant the district court the authority to order a lesser amount than the actual amount suffered by the victim if compelling circumstances show a restitution plan to be unworkable.

7. SAME—Sentencing—Restitution—Imposition Not Violation of Sixth Amend- ment. The imposition of criminal restitution by a district judge under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) does not violate the Sixth Amendment to the United States Constitution.

8. SAME—Sentencing—Restitution—Insurance Carrier May Be Awarded Restitu- tion under Statutes. Neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) prohibit a district court from awarding restitution to an insurance carrier that has suffered damage or injury as a result of the defendant's crime.

Appeal from Lyon District Court; MERLIN G. WHEELER, judge. Opinion filed June 26, 2020. Affirmed.

Caroline M. Zuschek, of Kansas Appellate Defender Office, for appellant.

Amy L. Aranda, first assistant county attorney, Marc Goodman, county attorney, and Derek Schmidt, attorney general, for appellee.

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

BRUNS, J.: Robert James Robison, III pled no contest to one count of battery of a law enforcement officer. As part of his sentence, the district court required Robison to pay $2,648.56 in restitution to reimburse a workers compensation insurance carrier that had paid the medical expenses of the law enforcement officer injured as a result of the battery. On appeal, Robison contends that the order of restitution violates both Section 5 of the Kansas Constitution Bill of Rights and the Sixth Amendment of the United States Constitution. In addition, Robi- son contends that the district court erred in awarding restitution to be paid to an insurance carrier. Finding no error, we affirm the district court's order of restitution.

FACTS

On January 3, 2018, the State charged Robison with two counts of battery of a law enforcement officer in violation of K.S.A. 2017 Supp. 21-5413(c)(3)(D). The charges stemmed from an incident at the Lyon County Jail in which Robison hit Officer 382 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison

Zachary Nance and Corporal Bobby Cutright several times. Cor- poral Cutright suffered an injury to his eye and a bite on his arm. Following the incident, he went to Newman Regional Health where he received treatment. Lyon County's workers compensation insurance carrier subsequently paid Corporal Cutright's medical bills. Prior to trial, the parties entered into a plea agreement in which Robison agreed to plead no contest to one count of battery of a law enforcement officer. In exchange, the State agreed to dismiss the second count and further agreed not to request a fine. On March 20, 2018, the district court accepted Robison's no-contest plea and found him guilty of a single count of battery of a law enforcement officer arising out of the attack on Corporal Cutright. A few months later, the district court sentenced Robison to 32 months' imprisonment and 24 months' post-release supervision. Complying with the terms of the plea agreement, the district court did not impose a fine. However, the district court agreed to consider the State's request for restitution and continued the resolution of the request until a later date. At a restitution hearing held on August 21, 2018, the State requested that Robison pay $2,648.56 in restitution to reimburse the workers compensation insurance carrier that paid Corporal Cutright's medical bills arising out of the battery. A hospital employee testified about the medical bills and verified that they had been paid by the insurance carrier. Robison's counsel did not dispute the amount of the medical bills or that they arose out of the attack on Corporal Cutright. Instead, defense counsel argued that the workers compensation insurance carrier was not entitled to restitution and had not requested reimbursement. After considering the evidence and the arguments of counsel, the district court found that the medical bills incurred by Corporal Cutright were caused by Robison's crime and that Lyon County's insurance carrier had paid the medical expenses on the officer's behalf. Accordingly, the district court ordered Robison to pay restitution in the amount of $2,648.56 to reimburse the workers compensation insurance carrier for the medical expenses it had paid. On appeal, Robison raises three issues. First, Robison contends that the Kansas restitution statutes violate Section 5 of the VOL. 58 COURT OF APPEALS OF KANSAS 383

State v. Robison

Kansas Constitution Bill of Rights because they encroach upon a criminal defendant's common law right to a civil jury trial on damages caused by the defendant's crime. Second, Robison contends that his right to a jury trial on the issue of restitution under the Sixth Amendment of the United States Constitution was violated because the statutes allowed the court to make a finding of fact that increased the penalty for his crime beyond the prescribed statutory maximum. Third, Robison contends that the statutes governing restitution preclude district courts from awarding restitution to an insurance carrier that has paid the victim's medical expenses caused by a criminal defendant. In response, the State denies each of these contentions. Specifically, the State maintains that the Kansas restitution statutes are constitutional—both under the Kansas Constitution and United States Constitution—and requests that we affirm the district court's restitution order.

PRESERVATION

At the outset, we must determine whether Robison's constitutional claims are properly before this court. The State argues that these issues were not properly preserved at the district court level and we should not consider them. It is undisputed that Robison asserts violations of the Kansas Constitution and the United States Constitution for the first time on appeal. Whether an issue has been properly preserved for appeal is a question of law that we review de novo. State v. Haberlein, 296 Kan. 195, 203, 290 P.3d 640 (2012). Generally, a constitutional issue not raised before the district court is considered to be waived or abandoned. Nevertheless, we can review issues presented on appeal in cases where: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts; (2) consideration of the theory is necessary to serve the ends of justice or to prevent a denial of fundamental rights; or (3) the district court is right for the wrong reason. State v. Perkins, 310 Kan. 764, 768, 449 P.3d 756 (2019). "The decision to review an unpreserved claim under an exception is a prudential one. Even if an exception would support a decision to review a new claim, this court has no obligation to do so." State v. Gray, 311 Kan. 164, Syl. ¶ 1, 459 P.3d 165 (2020). 384 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison

The right to a jury trial is a fundamental right under both Sec- tion 5 of the Kansas Constitution Bill of Rights and under the Sixth Amendment to the United States Constitution. State v. Rizo, 304 Kan. 974, 979-80, 377 P.3d 419 (2016). Robison argues that his fundamental constitutional right to a jury trial was violated when the district court decided the issue of restitution. Although Robison did not raise these issues before the district court, we may consider them because they potentially implicate a claim to the fundamental right to a trial by a jury under the Kansas Constitu- tion and the United States Constitution. See State v. Beaman, 295 Kan. 853, 858, 286 P.3d 876 (2012). Accordingly, we find that a decision on the merits would serve the ends of justice.

ANALYSIS

Section 5 of the Kansas Constitution Bill of Rights

The district court's authority to order restitution in a criminal case is established by statute. Robison contends that these statutes violate Section 5 of the Kansas Constitution Bill of Rights, which provides that "[t]he right of trial by jury shall be inviolate." So we begin our analysis by looking at the statutes challenged by Robi- son. K.S.A. 2017 Supp. 21-6604(b)(1)—which was applied in this case—grants a district court the authority to order the defendant to pay restitution as part of the sentence. The statute provides that the restitution amount "shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable." Similarly, K.S.A. 2017 Supp. 21-6607(c)(2) grants a district court the authority to order restitution payments as a condition of probation. Based on the clear and unambiguous language of the statutes, "'restitution for a victim's damages or loss depends on the establishment of a causal link between the defendant's unlawful conduct and the victim's damages.' [Citations omitted.]" State v. Alcala, 301 Kan. 832, 837, 348 P.3d 570 (2015). Robison claims K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2) violate Section 5 of the Kansas Consti- tution Bill of Rights because they deprive him of his right to have VOL. 58 COURT OF APPEALS OF KANSAS 385

State v. Robison a civil jury determine the amount of damages or loss caused by his crimes. Whether the criminal restitution statutes violate Section 5 of the Kansas Constitution is a legal question. Although we usually must presume that a statute is constitutional and must look for any reasonable way to interpret the statute to avoid a violation, this presumption does not apply to claims involving fundamental rights. See Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1132-33, 442 P.3d 509 (2019) (plurality opinion). Even so, we do not find Robi- son's arguments to be persuasive. The parties agree that Section 5 of the Kansas Constitution Bill of Rights preserves the common law right to a jury trial as it existed at the time of its adoption. The Kansas Constitution was approved by the delegates to the Wyandotte Constitutional Con- vention on July 29, 1859. A few months later, on October 4, 1859, the Kansas Constitution—also known as the Wyandotte Constitu- tion—was overwhelmingly approved by popular vote. Conse- quently, Section 5 of the Kansas Constitution only applies if it can be shown that territorial juries would have decided the issue of restitution in 1859. See Hilburn, 309 Kan. at 1134. Robison offers several arguments in an attempt to show that the criminal restitution statutes implicate the right to a jury trial under Section 5 of the Kansas Constitution. He first analogizes criminal restitution to causation and civil damages in a tort action. Robison accurately points out that Kansas juries decided the amount of civil damages in tort prior to statehood. See Kan. Terr. Stat. 1859, ch. 25, § 274. From there, he springs to the conclusion that criminal restitution should be treated like a civil remedy because such orders can be enforced like civil judgments under K.S.A. 60-4301. We find Robison's comparison of criminal restitution to causation and civil damages in tort to be unavailing. In fact, the Kan- sas Supreme Court has found that "[r]estitution ordered in criminal proceedings and civil damages are separate and independent remedies under Kansas Law." State v. Applegate, 266 Kan. 1072, 1078, 976 P.2d 936 (1999). Our Supreme Court recognized that "[t]he judge's order of restitution in a criminal action does not bar a victim from seeking damages in a separate civil action. Like- wise, the judge . . . is not foreclosed from ordering restitution just because the victim has received compensation in a civil action." 386 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison

266 Kan. at 1079. Because criminal restitution is not a civil judgment, we do not find that Section 5 of the Kansas Constitution Bill of Rights requires that criminal restitution be imposed by a jury. Robison also argues that he has a right to a jury trial under Section 5 of the Kansas Constitution because Kansas juries would have had to determine the amount of criminal restitution in 1859. In support of his argument, Robison cites a Kansas territorial statute that required juries in criminal cases to determine the value of stolen property for certain theft offenses. See Kan. Terr. Stat. 1859, ch. 27, § 219. But as the State points out, the reason juries had to make a finding regarding the value of stolen property was because that factual determination affected the severity level of the offense. See Kan. Terr. Stat. 1859, ch. 28, §§ 72- 74, 82-88, 91. As a result, factual findings by juries under the territorial statutes about the value of stolen property affected the appropriate sentence to be imposed on the defendant. But this does not mean that juries were used—either at common law or under territorial statutes—to determine whether an order of restitution could be awarded. Because criminal restitution is not a civil remedy and Robison has not even shown that restitution was available at common law, we find his arguments to be unpersuasive. Notably, Robison cites no provision in the Kansas territorial statutes that mention criminal restitution. Like- wise, he does not cite any Kansas territorial cases referencing criminal restitution. As Robison candidly acknowledges, criminal restitution was not listed in the Kansas territorial statutes as a permissible remedy for any crime in 1859. Therefore, we conclude that Robison has failed to establish that Section 5 of the Kansas Constitution Bill of Rights requires that a jury impose criminal restitution under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2).

Sixth Amendment of the United States Constitution

Next, Robison contends that the Kansas restitution statutes violate his right to a jury trial under the Sixth Amendment to the United States Constitution. Robison argues that the Kansas criminal restitution statutes violate the Sixth Amendment because they allow a judge to determine the amount of restitution to be awarded to a victim. In support of this argument, Robison cites Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), in which the United States Supreme Court held that "[o]ther than the fact of a prior conviction, VOL. 58 COURT OF APPEALS OF KANSAS 387

State v. Robison any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S. at 490. He also cites Alleyne v. United States, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), in which the United States Supreme Court held that facts that increase a mandatory minimum penalty must also be decided by a jury. In response, the State contends that the Sixth Amendment does not apply because criminal restitution is not punishment. The State argues that even if criminal restitution is punishment, it does not violate either Apprendi or Alleyne because a district court's imposition of restitution does not increase the statutory maximum or minimum penalty for an offense. The State relies on this court's opinion in State v. Huff, 50 Kan. App. 2d 1094, 336 P.3d 897 (2014), rev. denied 302 Kan. 1015 (2015), which held the statutes do not violate the Sixth Amendment because restitution does not increase the statutory maximum or minimum penalty for an offense. In addition, the State cites several federal cases that reject similar challenges to criminal restitution statutes. See United States v. Day, 700 F.3d 713, 716, 732 (4th Cir. 2012), and United States v. Burns, 800 F.3d 1258, 1261-62 (10th Cir. 2015). Both parties acknowledge that this court has previously addressed this issue in Huff. Likewise, we note that the Kansas Supreme Court has granted a petition for review in one of the cases from our court from this court addressing this issue. State v. Arnett, No. 112,572, 2018 WL 2072804 (Kan. App.) (unpublished opinion), rev. granted 308 Kan. 1596 (2018). We also note that in another case in which our court addressed this issue, the Kansas Supreme Court initially granted a petition for review but subsequently withdrew its order. State v. Patterson, No. 114,861, 2017 WL 3207149 (Kan. App. 2017) (unpublished opinion), mandate issued November 14, 2019. As discussed above, there are two Kansas statutes that require district courts to order a defendant to pay restitution absent a finding of unworkability. K.S.A. 2017 Supp. 21-6604(b)(1)—which was applied in this case—provides that a district court must "order the defendant to pay restitution, which shall include, but not be limited to, damage or loss caused by the defendant's crime, unless the court finds compelling circumstances which would render a plan of restitution unworkable." Likewise, K.S.A. 2017 Supp. 21-6607(c)(2)—which applies restitution to the terms of probation—provides that a district court must order the defendant to "make reparation or restitution to the aggrieved party 388 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison for the damage or loss caused by the defendant's crime, in an amount and manner determined by the court and to the person specified by the court, unless the court finds compelling circumstances which would render a plan of restitution unworkable." Despite minor differences in the wording, this court has interpreted the two statutes similarly because they were enacted together and cover the same subject matter. See State v. Miller, 51 Kan. App. 2d 869, 872, 355 P.3d 716 (2015). Restitution is a form of restorative justice. It is intended to restore the victims of crime to the position they found themselves in prior to a defendant's commission of the offense that caused the injury or damage. See Black's Law Dictionary 1571 (11th ed. 2019) (Restitution is the "[r]eturn or restoration of some specific thing to its rightful owner or status; Compensation for loss, esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as part of a criminal sentence or as a condition of probation."). Alt- hough part of the criminal sentence, restitution benefits the criminal victims who actually suffered an injury or damage rather than the government. See State v. Heim, No. 111,665, 2015 WL 1514060, at *2 (Kan. App. 2015) (unpublished opinion) ("Restitution is intended to fairly compensate crime victims and to further the rehabilitation of defendants by instilling in them some sense of the costs their wrongdoing has inflicted."). "While it is undeniable that restitution is part of a defendant's sentence, it does not mean restitution is punishment." Huff, 50 Kan. App. 2d at 1099; see also State v. Hall, 45 Kan. App. 2d 290, 298, 247 P.3d 1050 (2011) (restitution is not part of a defendant's punishment), aff'd 297 Kan. 709, 304 P.3d 677 (2013). Nevertheless, even if it is assumed that restitution constitutes punishment, we find that Robison's Sixth Amendment argument fails. This is because neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) impose a mandatory minimum amount or a mandatory maximum amount that a convicted defendant must pay to reimburse a victim of crime. It is important to recognize that both statutes grant a district court the authority to order a lesser amount than the actual amount suffered if it "finds compelling circumstances which would render a plan of restitution unworkable." K.S.A. 2017 Supp. 21-6604(b)(1); K.S.A. 2017 Supp. 21-6607(c)(2). Moreover, the restitution statutes impose no mandatory maximum amount that a district court may award. Rather, VOL. 58 COURT OF APPEALS OF KANSAS 389

State v. Robison both statutes grant a district court the authority to order restitution in an amount equal to the "damage or loss caused by the defendant's crime . . . ." See K.S.A. 2017 Supp. 21-6604(b)(1); K.S.A. 2017 Supp. 21- 6607(c)(2). In other words, as our Supreme Court found in Applegate, unless a restitution plan is shown to be unworkable, the amount to be awarded is that which "reimburses the victim for the actual loss suffered." 266 Kan. at 1079. Accordingly, because the Kansas statutes do not include mandatory minimums or maximums, we find that neither Alleyne nor Ap- prendi applies to the award of criminal restitution. As a result, we conclude that Robison's Sixth Amendment right to a jury trial was not violated by the district court's imposition of restitution. Moreover, we note that our holding is consistent with the numerous federal and state courts that have considered the issue. At least 11 of the 13 United States Circuit Courts of Appeal have refused to extend Apprendi and its progeny to orders of restitution. See United States v. George, 949 F.3d 1181, 1188 (9th Cir. 2020); United States v. Vega-Martinez, 949 F.3d 43, 54 (1st Cir. 2020); United States v. Churn, 800 F.3d 768, 780-83 (6th Cir. 2015); Burns, 800 F.3d at 1261-62; United States v. Bengis, 783 F.3d 407, 411-13 (2d Cir. 2015); United States v. Rosbottom, 763 F.3d 408, 420 (5th Cir. 2014); Day, 700 F.3d at 732 (4th Cir. 2012); Dohrmann v. United States, 442 F.3d 1279, 1281 (11th Cir. 2006); United States v. Leahy, 438 F.3d 328, 335-38 (3d Cir. 2006); United States v. Carruth, 418 F.3d 900, 904 (8th Cir. 2005); United States v. George, 403 F.3d 470, 473 (7th Cir. 2005). In fact, we can find no federal court that has held judicially ordered restitution violates Apprendi and its progeny. Similarly, several state courts have joined this court in concluding that Apprendi and its progeny do not apply to restitution orders. See State v. Leon, 240 Ariz. 492, 495-96, 381 P.3d 286 (Ct. App. 2016); People v. Wall, 3 Cal. 5th 1048, 1075-76, 224 Cal. Rptr. 3d 861, 404 P.3d 1209 (2017); People v. Smith, 181 P.3d 324, 327 (Colo. App. 2007); Smith v. State, 990 N.E.2d 517, 520-22 (Ind. App. 2013); State v. Foumai, No. CAAP-17-0000093, 2018 WL 495679, at *4 (Haw. Ct. App. 2018) (unpublished opinion); Commonwealth v. Denehy, 466 Mass. 723, 736-38, 2 N.E.3d 161 (2014); People v. Corbin, 312 Mich. App. 352, 371-73, 880 N.W.2d 2 (2015); State v. Rey, 905 N.W.2d 490, 496-97 (Minn. 2018); State v. Clapper, 273 Neb. 750, 755-59, 732 N.W.2d 657 (2007); State v. Martinez, 392 N.J. Super. 307, 315- 390 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison

18, 920 A.2d 715 (2007); People v. Horne, 97 N.Y.2d 404, 414-15, 740 N.Y.S.2d 675, 767 N.E.2d 132 (2002); State v. Deslaurier, 277 Or. App. 288, 295, 371 P.3d 505 (2016); State v. Kinneman, 155 Wash. 2d 272, 282, 119 P.3d 350 (2005). We recognize that some legal scholars believe the United States Supreme Court intimated in its opinion in Southern Union Co. v. United States, 567 U.S. 343, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), that it might extend the Sixth Amendment right to a jury trial on the issue of criminal restitution. We do not hold that belief. In Southern Union, the United States Supreme Court reviewed a state statute that imposed a maximum criminal fine for each day that the defendant was in violation. Under those circumstances, the Supreme Court found that a jury was needed to determine how many days the violation had occurred. 567 U.S. at 347-50. Of note, Southern Union explains that Ap- prendi prohibits "judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury's verdict or the defendant's admissions allow." 567 U.S. at 352. Of course, as explained above, there is a substantial difference between criminal fines paid to the government and restitution paid to reimburse victims. Furthermore, several United States Circuit Courts have concluded that Southern Union does not extend Apprendi and its progeny to restitution. Recently, in Vega-Martinez, which was decided earlier this year, the First Circuit held that because restitution under the federal Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, has no statutory maximum amount and instead tasks district courts with determining the factual amount of loss, Apprendi does not apply. Vega- Martinez, 949 F.3d at 54-55; see also Bengis, 783 F.3d at 412 (Under the MVRA, "a judge cannot find facts that would cause the amount to exceed a prescribed statutory maximum."). In reaching this conclusion, the First Circuit agreed with several other Circuit Courts that had found that Southern Union "does not overrule their previous holdings that Apprendi does not apply to restitution calculations." Vega-Martinez, 949 F.3d at 55 (citing United States v. Saw- yer, 825 F.3d 287, 297 [6th Cir. 2016]); United States v. Thunder- hawk, 799 F.3d 1203, 1209 (8th Cir. 2015); Bengis, 783 F.3d at 412-13; Rosbottom, 763 F.3d at 420; United States v. Green, 722 F.3d 1146, 1149-50 (9th Cir. 2013); United States v. Wolfe, 701 F.3d 1206, 1216-17 (7th Cir. 2012); Day, 700 F.3d at 732.

VOL. 58 COURT OF APPEALS OF KANSAS 391

State v. Robison

In Green, the United States Court of Appeals for the Ninth Circuit found:

"[I]t's not even clear that restitution's a form of punishment. We've held in some contexts that 'restitution under the MVRA is punishment.'" United States v. Dubose, 146 F.3d 1141, 1145 (9th Cir. 1998); see United States v. Ballek, 170 F.3d 871, 876 (9th Cir. 1999). But in other contexts, we've held it's not. See United States v. Phillips, 704 F.3d 754, 771 (9th Cir. 2012) ('[F]orfeiture and restitution serve entirely distinct purposes: "Congress conceived of forfeiture as punishment . . . . The purpose of restitution . . . , however, is not to punish the defendant, but to make the victim whole again."' (quoting United States v. New- man, 659 F.3d 1235, 1241 [9th Cir. 2011]); Gordon, 393 F.3d at 1052 n.6 ('[T]he MVRA's purpose is to make the victims whole; conversely, the Sentencing Guidelines serve a punitive purpose.'). Sometimes we've held it's a hybrid, with 'both compensatory and penal purposes.' United States v. Rich, 603 F.3d 722, 729 (9th Cir. 2010). Even if Apprendi covers all forms of punishment, restitution's not 'clearly' punishment, so we can't rely on Southern Union to overrule our restitution precedents." 722 F.3d at 1150.

The Ninth Circuit also found it significant in Green that the MVRA does not have a statutory maximum. Rather, restitution is "pegged to the amount of the victim's loss. A judge cannot exceed the non-existent statutory maximum for restitution no matter what facts he finds, so Apprendi's not implicated." 722 F.3d at 1150. Likewise, as discussed above, the Kansas restitution scheme does not have either a statutory maximum or minimum. So, like their federal counterparts, a Kansas district judge cannot exceed a statutory maximum—or statutory minimum—that does not exist. In Day, the United States Court of Appeals for the Fourth Cir- cuit also rejected the defendant's claim that Southern Union compelled a finding that the Apprendi rule should be extended to orders of restitution. 700 F.3d at 731. In Day, the Fourth Circuit found:

"Prior to Southern Union, every circuit to consider whether Apprendi applies to restitution held that it did not. See United States v. Milkiewicz, 470 F.3d 390, 403 (1st Cir.2006) ('[L]ike all of the other circuits to consider this question, we conclude that [Apprendi does] not bar judges from finding the facts necessary to impose a restitution order.'). Day argues that we should break ranks with these prior decisions in light of Southern Union and apply Apprendi to restitution because it is 'similar' to a criminal fine. "We decline to take Day's suggested course. As an initial matter, we note that Southern Union does not discuss restitution, let alone hold that Apprendi should apply to it. Instead, far from demanding a change in tack, the logic of Southern Union actually reinforces the correctness of the uniform rule adopted 392 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison in the federal courts to date. That is, Southern Union makes clear that Apprendi requires a jury determination regarding any fact that 'increases the penalty for a crime beyond the prescribed statutory maximum.' [Citations omitted.] Thus, in Southern Union itself, the Apprendi issue was triggered by the fact that the district court imposed a fine in excess of the statutory maximum that applied in that case. [Citation omitted.] "Critically, however, there is no prescribed statutory maximum in the restitution context; the amount of restitution that a court may order is instead indeterminate and varies based on the amount of damage and injury caused by the offense. [Citation omitted.] As a consequence, the rule of Apprendi is simply not implicated to begin with by a trial court's entry of restitution." Day, 700 F.3d at 732.

We find that the holding in Huff is consistent with federal and state court decisions from across the United States. Furthermore, for nearly six years, district courts and panels of this court have followed the holding in Huff. See Arnett, 2018 WL 2072804, at *2; Patterson, 2017 WL 3207149, at *8 (since restitution does not implicate Apprendi, the court found no reason to review the issue for the first time on appeal); State v. Bradwell, No. 115,153, 2016 WL 7178771, at *4 (Kan. App. 2016) (restitution is not punishment but is restorative in nature); State v. Pister, No. 113,752, 2016 WL 4736619, at *7 (Kan. App. 2016), rev. denied 306 Kan. 1328 (2017); and State v. Jones, No. 113,044, 2016 WL 852865, at *9 (Kan. App. 2016), rev. granted 307 Kan. 991 (2017). Huff has also been cited with approval by other jurisdictions. See De- slaurier, 277 Or. App. at 295 n.2 (Oregon Court of Appeals citing Huff in support of conclusion that the imposition of restitution is unlike the circumstances in Apprendi and Southern Union); Fou- mai, 2018 WL 495679, at *4 (Hawaii Court of Appeals citing Huff in concluding that Apprendi does not apply to an order of restitution). Despite Robison's claim that K.S.A. 2017 Supp. 21- 6604(b)(1) increases the statutory minimum penalty, we find that it does not require a district judge to award the full amount of damage or loss. See State v. Meeks, 307 Kan. 813, 821, 415 P.3d 400 (2018) (affirming restitution order that was less than the loss sustained by the victims as a result of the theft of the vehicle). In fact, under the plain language of K.S.A. 2017 Supp. 21- 6604(b)(1), a district judge has the authority to impose no restitution if it "finds compelling circumstances which would render a VOL. 58 COURT OF APPEALS OF KANSAS 393

State v. Robison plan of restitution unworkable." We note that this is also true under K.S.A. 2017 Supp. 21-6607(c)(2). We thus conclude that Al- leyne is not applicable because the Kansas restitution statutes do not include statutory minimums and, as such, they cannot be increased. In summary, we find that the statutes governing restitution in Kansas impose neither mandatory minimum amounts nor mandatory maximum amounts. See K.S.A. 2017 Supp. 21-6604(b)(1); K.S.A. 2017 Supp. 21-6607(c)(2). So they do not trigger the concerns expressed by the United States Supreme Court in Apprendi or Alleyne. Thus, we conclude that the district court's imposition of restitution in this case did not violate Robison's Sixth Amend- ment right to a trial by jury.

Award of Restitution to Insurance Carrier

Robison also contends that the district court erred in awarding restitution to an insurance company. He divides this argument into two parts. Initially, he argues that under K.S.A. 2017 Supp. 21- 6604, an insurance company cannot receive restitution for damages caused by a defendant's crime. Next, he argues that even if an insurance company can receive restitution under the Kansas restitution statutes, the damage or loss to the insurance carrier in this case has not been established. We find neither argument to be persuasive. We exercise unlimited review over that legal question because it requires interpreting the restitution statutes. State v. Dexter, 276 Kan. 909, Syl. ¶ 2, 80 P.3d 1125 (2003). Robison acknowledges that the Kansas Supreme Court has held that a district court may award restitution to an insurance carrier. State v. Beechum, 251 Kan. 194, Syl. ¶ 3, 833 P.2d 988 (1992). Similarly, panels of this court have found that an "aggrieved party" under the restitution statutes includes an insurance company paying claims under a crime victim's policy. See State v. Hand, 45 Kan. App. 2d 898, Syl. ¶ 3, 257 P.3d 780 (2011), rev'd on other grounds 297 Kan. 734, 304 P.3d 1234 (2013); State v. Jones, No. 119,470, 2019 WL 2554115, at * 2 (Kan. App. 2019) (unpublished opinion); State v. Blaylock, No. 114,789, 2017 WL 839522, at *1-2 (Kan. App. 2017) (unpublished opinion). Furthermore, our Supreme Court 394 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison found that the language in K.S.A. 1991 Supp. 21-6607(c)(2) regarding the payment of restitution to an "aggrieved party" for damage caused by the criminal act includes insurance companies. Beechum, 251 Kan. 194, Syl. ¶ 3. Despite Robison's arguments to the contrary, we find that the rationale in Beechum and the other cases cited above applies equally to restitution ordered under K.S.A. 2017 Supp. 21-6604. Again, this court has interpreted the two restitution provisions to have the same meaning. Miller, 51 Kan. App. 2d at 872. Also, Robison offers no reason why the Kansas Legislature would have wanted to limit insurance carriers from receiving compensation for their losses as a condition of probation. Because we find that both statutes allow insurance companies to receive restitution, Robison's argument fails. Nevertheless, Robison argues that even if insurance companies can receive restitution under K.S.A. 2017 Supp. 21- 6604(b)(1), the State did not establish that the insurance carrier in this case suffered any damage or loss as a result of his crime. We review the amount of restitution awarded for abuse of discretion. A district court abuses its discretion if its decision is based on legal or factual error, or if no reasonable person would agree with its decision. So, the district court's finding of a causal link between the defendant's crime and the victim's loss must be supported by substantial evidence. State v. Shank, 304 Kan. 89, 92-93, 369 P.3d 322 (2016). In addition, Robison argues that "while the State put on evidence of value—$2,648.56—it failed to put on any evidence that a loss of that value occurred." Yet Robison does not suggest the insurance carrier's losses were less than the $2,648.56 the district court ordered. We also find nothing in the record to suggest that the insurance carrier received a windfall when the district court ordered that it be reimbursed for the amount it had paid to cover the officer's medical bills, and it is undisputed that these bills resulted from the treatment the officer received after being injured by Robison. Thus, we find that the district court did not abuse its discretion in ordering Robison to pay $2,648.56 in restitution to the workers compensation insurance carrier. VOL. 58 COURT OF APPEALS OF KANSAS 395

State v. Robison

Finally, Robison briefly argues that the insurance company had to make the claim before the district court could order it to be reimbursed for the amount of medical expenses paid on behalf of Corporal Cutright. Again, we exercise unlimited review over this legal question because it involves the interpretation of the restitution statutes. Dexter, 276 Kan. 909, Syl. ¶ 2. Moreover, we note that two panels of this court have rejected similar arguments because the restitution statutes do not require the person or entity incurring the damage or loss to request restitution. Instead, the State can make the request for the aggrieved party. See Jones, 2019 WL 2554115, at *2; State v. Jones, No. 106,750, 2012 WL 4121119, at *4 (Kan. App. 2012) (unpublished opinion). We are persuaded by the analysis in those opinions. Consequently, we conclude that Robison's argument fails for the same reason, and we find that the district court's restitution judgment should be affirmed.

Affirmed.

* * *

LEBEN, J., dissenting: We treasure and zealously protect our right to a jury trial. It's enshrined for both civil and criminal cases in our state and federal constitutions. Yet there's a big loophole in the protection of those rights—and that loophole is the restitution order in a criminal case. These orders are often made in an almost perfunctory hearing after the defendant has, in all other respects, been fully sentenced. Prosecutors and defendants alike often focus on the big-picture issues: Should the defendant plead guilty? Can some charges be dismissed or reduced? How much time will the defendant have to serve in jail? In many cases, restitution is addressed only after those questions have been answered. And for an indigent defendant, it may not seem like an important issue at the time—the defendant who's going to prison won't be making any payments any time soon, anyway. But constitutional rights don't go away just because we're not paying attention to them. Courts and judges still have a duty to 396 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison protect them; if a defendant is to waive a constitutional right, we must first tell the defendant about it. In the case before us today, Robert James Robison III pleaded no contest to battery of a law enforcement officer. At sentencing, with no jury proceedings, a judge found that Robison's crime had caused $2,548.56 in damages to an insurance company and ordered that Robison pay restitution in that amount. Neither the document initially filed to charge Robison with the crime nor the plea agreement he and the prosecutor entered into mentioned those damages. One could argue that there's not much at stake here, only a little over $2,500. But that's not relevant when a restitution award is entered as part of a criminal sentence (and many restitution awards are much larger). Robison says that the Sixth Amendment to the United States Constitution, which requires juries in criminal cases, provides him a right to have a jury decide restitution. Text, history, and precedent convince me that it does. And if not, then Section 5 of the Kansas Constitution Bill of Rights does. Because Robison had a right to have a jury decide restitution, I would vacate the restitution award against him.

The Sixth Amendment Claim

The Sixth Amendment provides a right to a jury trial in all criminal prosecutions. The rule from Apprendi v. New Jersey en- forces that right: "[A]ny fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." 530 U.S 466, 490, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). Robison contends that the Kansas restitution statutes, K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2), violate that rule. As I'll explain, there are several steps involved in the analysis, but my col- leagues disagree with Robison for two reasons: (1) that restitution isn't punishment and (2) that the statutes don't increase the statutory maximum or statutory minimum sentence for Robison's crime. I will address those reasons in order, covering the applicable Sixth Amendment principles along the way.

VOL. 58 COURT OF APPEALS OF KANSAS 397

State v. Robison

The Sixth Amendment applies to restitution orders, so we must apply Apprendi.

The claim that restitution is nonpunitive—and thus not covered by the Sixth Amendment—is undercut by text, history, and precedent. The text of the Sixth Amendment provides a right to a jury trial "[i]n all criminal prosecutions." So we must determine whether restitution is part of the "criminal prosecution." Restitution is imposed after a criminal conviction and is part of the defendant's sentence. State v. McDaniel, 292 Kan. 443, 446, 254 P.3d 534 (2011). Its purposes include deterring future crime and rehabilitating the defendant. State v. Applegate, 266 Kan. 1072, Syl. ¶ 2, 976 P.2d 936 (1999). Those are punitive objectives; they are two of the rationales the government may use to justify a form of punishment under the Cruel and Unusual Punishment Clause of the Eighth Amendment of the United States Constitu- tion. Hall v. Florida, 572 U.S. 701, 708, 134 S. Ct. 1986, 188 L. Ed. 2d 1007 (2014). And the United States Supreme Court often describes restitution awarded under federal statutes as a form of punishment. Paroline v. United States, 572 U.S. 434, 456, 134 S. Ct. 1710, 188 L. Ed. 2d 714 (2014) (collecting cases). Those statutes "implicate[] 'the prosecutorial powers of government.'" 572 U.S. at 456. Nothing about restitution under our Kansas statutes justifies treating it any differently. Restitution implicates the Sixth Amendment because it is part of the defendant's "criminal prosecution." That conclusion is unaffected by the observation that restitution also provides compensation for crime victims. It's true that one purpose restitution serves is to compensate victims for damage caused by the crime. But it also serves punitive purposes of deterrence and rehabilitation. Applegate, 266 Kan. 1072, Syl. ¶ 2. And it is part of the defendant's sentence after a criminal conviction. Restitution's compensatory purpose doesn't erase these punitive attributes. They exist no matter how creatively courts like ours describe restitution. The majority prefers to call restitution "a form of restorative justice," 58 Kan. App. 2d at 388, a name used in only one other Kansas case to describe restitution. State v. Brown, No. 120,590, 2020 WL 1897361, at *9 (Kan. App. 2020) (unpublished 398 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison opinion). Yet in the very same paragraph, the majority cites a dictionary definition and a case that acknowledge restitution's criminal characteristics. However labelled, restitution's criminal characteristics make it a part of the defendant's criminal prosecution. The nonpunishment view is even harder to defend when you consider the size of restitution awards and the consequences of not paying them. A search of federal cases returns decisions from every circuit upholding multi-million-dollar restitution awards. E.g., United States v. Bikundi, 926 F.3d 761, 790-92 (D.C. Cir. 2019) ($80.6 million); United States v. Moreland, 622 F.3d 1147, 1170-73 (9th Cir. 2010) ($36 million); United States v. Lewis, 557 F.3d 601, 615 (8th Cir. 2009) ($39 million). A similar search of Kansas cases produces awards in the hundreds of thousands of dollars. State v. McAnally, No. 119,133, 2019 WL 3367902 (Kan. App. 2019) (unpublished opinion) ($789,282); State v. Crowell, No. 116,841, 2018 WL 1352534 (Kan. App.) (unpublished opinion) ($202,552), rev. denied 308 Kan. 1597 (2018); State v. Huff, 50 Kan. App. 2d 1094, 1096, 1104, 336 P.3d 897 (2014) ($105,000). Keep in mind that if any of the victims who received restitution in those cases had sued for civil damages, a jury-trial right would have kicked in. The defendants in that civil case could invoke their right to have a jury decide whether their actions caused damages, and if so, how much. Kan. Const. Bill of Rights § 5; K.S.A. 2017 Supp. 60-238; State v. Love, 305 Kan. 716, 735-36, 387 P.3d 820 (2017). Not so in a criminal case, where the State can obtain a jury-free damages award for the victim—and that restitution award is enforceable as a civil judgment too. K.S.A. 2017 Supp. 21-6604(b)(2); K.S.A. 2017 Supp. 60-2401. The lack of a jury-trial right in a criminal case is even more anomalous when you realize that the consequences of not paying criminal restitution are more severe than not paying a civil judgment. For many felonies, the district court can indefinitely extend probation until restitution is fully paid. K.S.A. 2017 Supp. 21- 6608(c)(7). The court can even do so without holding a hearing. State v. Gordon, 275 Kan. 393, 406-07, 66 P.3d 903 (2003). So the defendant could end up on probation for years, subject to hav- VOL. 58 COURT OF APPEALS OF KANSAS 399

State v. Robison ing the underlying prison sentence imposed for all manner of potential violations. And with the felony sentence still in place through continued probation, the felony defendant also would be denied the right to vote, hold public office, and serve on a jury. K.S.A. 2017 Supp. 21-6613(a)-(b). These consequences, with plenty of punitive attributes, show that restitution is part of the "criminal prosecution" to which the Sixth Amendment jury-trial right attaches. So does history, the touchstone of any Apprendi analysis. That analysis is "informed by the historical role of the jury at common law." Oregon v. Ice, 555 U.S. 160, 170, 129 S. Ct. 711, 172 L. Ed. 2d 517 (2009). So we must consider "whether the finding of a particular fact was understood as within 'the domain of the jury . . . by those who framed the Bill of Rights.'" 555 U.S. at 168. Most judges and lawyers are not historians by training; I'm in that group. So there's always a risk that we'll misread history in some way. Here, though, the historical role of juries in finding restitution seems pretty well established. The earliest examples of restitution in England required jury findings. In a victim-initiated prosecution called an appeal of felony, a larceny victim could re- take stolen property by identifying it in the complaint and having the jury determine who owned it. Note, Guarding the Rights of the Accused and Accuser: The Jury's Role in Awarding Criminal Res- titution Under the Sixth Amendment, 51 Am. Crim. L. Rev. 463, 472 (2014). Larceny victims could likewise recover stolen property in an indictment of felony, a prosecution brought by the Crown, by filing a writ of restitution that listed the property in the indictment. 51 Am. Crim. L. Rev. at 473-74; State v. Ragland, 171 Kan. 530, 233 P.2d 740 (1951). American courts and colonial statutes followed the English tradition, allowing restitution for theft offenses only if the stolen property was described in the indictment and the jury made a special finding. 51 Am. Crim. L. Rev. at 474-75. The claim that the Sixth Amendment doesn't apply to restitution conflicts with this historical evidence. It also conflicts with precedent. In Southern Union Co. v. United States, 567 U.S. 343, 132 S. Ct. 2344, 183 L. Ed. 2d 318 (2012), the United States Supreme Court applied Apprendi to criminal fines. It did so because criminal fines are no different from other punishments subject to the Sixth Amendment: 400 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison

"Apprendi's 'core concern' is to reserve to the jury 'the determination of facts that warrant punishment for a specific statutory offense.' That concern applies whether the sentence is a criminal fine or imprisonment or death. Criminal fines, like these other forms of punishment, are penalties inflicted by the sovereign for the commission of offenses. . . . In stating Apprendi's rule, we have never distin- guished one form of punishment from another. Instead, our decisions broadly prohibit judicial factfinding that increases maximum criminal 'sentence[s],' 'penalties,' or 'punishment[s]'—terms that each undeniably embrace fines. [Citations omitted.]" 567 U.S. at 349-50.

In short, the Apprendi rule applied to criminal fines because they were indistinguishable from other punishments subject to the rule. So too with restitution. Like a criminal fine, restitution is a penalty inflicted by the government for committing an offense. There is no meaningful difference between fines and restitution that would justify the Sixth Amendment applying to one and not the other. To be sure, you pay them to different actors—restitution to a victim, fines to the government. But that's a distinction without a constitutional difference, as the United States Supreme Court recognized in Paroline. The Paroline Court rejected an interpretation of a federal restitution statute that, among other things, potentially violated the Eighth Amendment's Excessive Fines Clause. 572 U.S. at 455-56. That was the case, the Court explained, because although restitution is paid to a victim, the government may impose it only after a criminal conviction. So despite the difference in who receives payment, the Excessive Fines Clause still potentially applied to restitution because, like a fine, it "implicates 'the prosecutorial powers of government." 572 U.S. at 456. Thus, who receives payment is an insufficient basis for treating restitution and fines differently under the Sixth Amendment. To recap, the text of the Sixth Amendment, history, and precedent support a holding that the Sixth Amendment—and thus the Apprendi rule—applies to restitution. I must concede, though, that the majority cites a slew of federal and state cases rejecting the claim that Apprendi applies to restitution. Three things stand out about these cases, and they lead me to conclude that the cases have limited precedential value. First, the cases reject Apprendi-based restitution claims for different reasons, and those reasons aren't very consistent. Some VOL. 58 COURT OF APPEALS OF KANSAS 401

State v. Robison do so because restitution isn't punishment at all. Others do so because it doesn't increase the statutory maximum or minimum. Still others rely on both rationales. And while courts uniformly hold that restitution statutes don't violate Apprendi, they are split on whether restitution is punishment—a pretty important matter in deciding whether the Sixth Amendment (and, with it, Apprendi) applies. Take the Third and Sixth Circuits. Both agree that restitution is a form of punishment. United States v. Leahy, 438 F.3d 328, 335 (3d Cir. 2006) (en banc); United States v. Sosebee, 419 F.3d 451, 461 (6th Cir. 2005). So do three states the majority mentions. People v. Wall, 3 Cal. 5th 1048, 1075-76, 224 Cal. Rptr. 3d 861, 404 P.3d 1209 (2017); State v. Clapper, 273 Neb. 750, 757, 732 N.W.2d 657 (2007); State v. Kinneman, 155 Wash. 2d 272, 277- 81, 119 P.3d 350 (2005). In three others, the courts made no com- ment on whether restitution is punishment. State v. Deslaurier, 277 Or. App. 288, 295, 371 P.3d 505 (2016); People v. Smith, 181 P.3d 324, 327 (Colo. App. 2007); State v. Foumai, No. CAAP-17- 0000093, 2018 WL 495679, at *4 (Haw. Ct. App. 2018) (unpublished opinion). Then there are the courts that treat restitution as punishment in non-Apprendi contexts. Three federal circuits do that, describing restitution as "part of a criminal penalty," United States v. Tull- Abreu, 921 F.3d 294, 305 (1st Cir.), cert. denied 140 S. Ct. 424 (2019); having "compensatory and penal" goals, United States v. Ritchie, 858 F.3d 201, 214 (4th Cir. 2017); and "'penal, rather than compensatory,'" United States v. Puentes, 803 F.3d 597, 609 (11th Cir. 2015). At least two states, in cases not cited by the majority, similarly subscribe to the punitive view of restitution when no Ap- prendi issues are being argued. State v. Kealoha, 142 Haw. 46, 50, 414 P.3d 98 (2018); In re Cody H., 452 Md. 169, 183, 156 A.3d 823 (2017). Second, many of the cases are outdated in light of later caselaw developments. Nine of them were decided six or more years before the Court's Southern Union opinion. Dohrmann v. United States, 442 F.3d 1279 (11th Cir. 2006); Leahy, 438 F.3d 328; United States v. Carruth, 418 F.3d 900 (8th Cir. 2005); United States v. George, 403 F.3d 470 (7th Cir. 2005); Smith, 181 P.3d at 327; Clapper, 273 Neb. at 757; State v. Martinez, 392 N.J. 402 COURT OF APPEALS OF KANSAS VOL. 58

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Super. 307, 315-18, 920 A.2d 715 (2007); People v. Horne, 97 N.Y.2d 404, 414-15, 740 N.Y.S.2d 675, 767 N.E.2d 132 (2002); Kinneman, 155 Wash. 2d at 277-81. So they don't account for the closely analogous application of the Apprendi rule to criminal fines in Southern Union. Third, even the newer cases that do address Southern Union make little effort to distinguish it—or to explain why restitution isn't punishment. Like the rest, they mostly cite to other cases in which their court or another had already classified restitution as nonpunitive. Rather than follow their lead, we should analyze the issue anew and recognize that restitution is part of the "criminal prosecution." Courts award it in a criminal proceeding as part of a criminal sentence. Imposing it serves punitive aims and not paying it has punitive consequences. For those reasons, the Sixth Amend- ment applies to restitution awards. So we must apply Apprendi.

The Kansas restitution scheme violates the Apprendi rule.

Now we must figure out whether the Kansas restitution statutes violate the Apprendi rule. The majority says they don't because these statutes increase neither the statutory maximum nor statutory minimum sentence. Although I agree that the statutes don't increase the statutory minimum, I would hold that they increase the statutory maximum. The meaning of that phrase is clear from the United States Supreme Court's Apprendi cases. In Blakely v. Washington, the Court provided a simple definition of the term that's worth repeating here:

"[T]he 'statutory maximum' for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. In other words, the relevant 'statutory maximum' is not the maximum sentence a judge may impose after finding additional facts, but the maximum [a judge] may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts 'which the law makes essential to the punishment[.] . . .' [Citations omitted.]" Blakely v. Washington, 542 U.S. 296, 303-04, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004).

So the statutory maximum is the most punishment that a judge could impose without more findings. The Court continues to apply VOL. 58 COURT OF APPEALS OF KANSAS 403

State v. Robison that definition in its Apprendi cases. Southern Union, 567 U.S. at 348. Under Blakely, then, the Kansas restitution scheme increases the statutory maximum. Unless the jury found that the defendant's crime caused the specific damages or the defendant stipulated to them in the plea deal, the most restitution that a judge could award is zero. Yet K.S.A. 2017 Supp. 21-6604(b)(1) and 21-6607(c)(2) allow judges to award amounts way more than zero in restitution if the judge finds that the crime caused "damage or loss." Consider Robison's case. The indictment didn't allege that his crime caused any damage or loss to the insurance company. Nor did the plea agreement. So when the judge made a damages finding at sentencing, he ordered more restitution than was authorized by the plea agreement alone. The majority counters that there is no statutory maximum for restitution (so our statutes couldn't impermissibly increase the maximum). 58 Kan. App 2d at 391. The argument goes like this: the maximum value of awardable restitution is indeterminate because it will vary from case to case based on the damage or loss caused by a crime; so unlike criminal fines with fixed dollar amounts, there is no statutory maximum for restitution. But South- ern Union forecloses this argument. Recall that Southern Union extended Apprendi to criminal fines. The statutorily authorized fine in that case was up to $50,000 for each day a company had violated a federal environmental statute. The judge-found fact that impermissibly increased the statutory maximum in Southern Union was the length of the violation. Yet the Court made clear that its holding would apply to any fact used to calculate a fine, including "the amount of the defendant's gain or the victim's loss." 567 U.S. at 349-50. What- ever fact is used, juries must "[i]n all such cases, . . . find beyond a reasonable doubt facts that determine the fine's maximum amount." 567 U.S. at 350. By the majority's logic, Southern Union was wrongly decided. The maximum fine in that case was not a fixed number. The fine was up to $50,000 for each day that the company had violated the environmental statute. The $50,000 number is not the statutory maximum; it's a variable the court multiplies by the length of the violation. Just as two crimes may not cause the same amount of 404 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison damage or loss, two companies may not violate an environmental statute for the same number of days. So the statutory maximum for the fine is indeterminate. If there is no statutory maximum for indeterminate penalties, as the majority suggests, then Southern Union should have come out the other way. It didn't, of course, because no part of the Court's decision imposed the fixed-amount requirement read into the decision by the majority here. The majority's reasoning would also mean that fines calculated using the amount of the defendant's gain or the victim's loss would be exempt from the Apprendi rule. Remember that South- ern Union said that the rule applies to those fines. 567 U.S. at 349- 50. But like a damage-or-loss figure for restitution, those fines have no constant maximum because the amount gained by the defendant or lost by the victim from the crime is variable. And if variable penalties have no statutory maximum, then under the majority's reasoning, the Apprendi rule shouldn't apply to those fines. Yet we know that's not right because Southern Union specifically identified those fines as an example of the kind of penalty to which the Court's holding applied. 567 U.S. at 349-50. And if Apprendi applies to a fine that's calculated based on the victim's loss, it should apply to restitution calculated on that same basis. In both cases, a judge-found fact increases the punishment the judge could impose beyond the amount authorized by the jury verdict or the plea agreement alone. It doesn't matter that the specific dollar amount of restitution will differ from case to case because the fact that's used to calculate that amount will always be the same: the amount of damage or loss found to have been caused by the defendant's crime. The majority recognizes that "some legal scholars believe," based on Southern Union, that the Sixth Amendment jury-trial right must also apply to restitution. 58 Kan. App. 2d at 390. But that view goes well beyond the legal academy. Two United States Supreme Court justices, including the author of Southern Union's majority opinion, have expressed support for the view that there's a right to a jury trial on restitution. Hester v. United States, 586 U.S. __, 139 S. Ct. 509, 510, 202 L. Ed. 2d 627 (2019) (Gorsuch, J., joined by Sotomayor, J., dissenting from cert. denial). And years before VOL. 58 COURT OF APPEALS OF KANSAS 405

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Southern Union, several federal circuit judges—and one state supreme court justice—would have held that restitution statutes violate Apprendi. Leahy, 438 F.3d at 343-44 (McKee, J., concurring in part and dissenting in part) (joined by four judges); Carruth, 418 F.3d at 905-06 (Bye, J., dissenting); Clapper, 273 Neb. at 750 (Connolly, J., dissenting). Academics also support this position, including the leading treatise on criminal procedure. 6 LaFave, Is- rael, King & Kerr, Criminal Procedure, § 26.6(c) (4th ed. 2019). Before moving to Robison's Section 5 claim, one last point is worth mentioning. The majority notes that under our state's restitution statutes, a judge may award less than the amount of "damage or loss" caused by the defendant's crime. 58 Kan. App. 2d at 388-89, 392. That's because a judge can reduce the restitution award from the total loss if "the court finds compelling circumstances which would render a plan of restitution unworkable." K.S.A. 2017 Supp. 21-6604(b)(1); K.S.A. 2017 Supp. 21- 6607(c)(2). I agree with that interpretation, but it in no way affects my conclusion about the statutory maximum. If the judge awards any restitution, the statutory maximum has still increased from zero to more than zero. The only way the compelling-circumstances language could cure the Apprendi violation would be if the judge found that compelling circumstances justified awarding no restitution. Only then would the statutory maximum stay at zero. And the maximum didn't stay at zero in Robison's case; the court didn't apply that exception and instead ordered Robison to pay the full damage-or-loss value. In sum, the two Kansas statutory provisions dealing with restitution—K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2)—violate the Apprendi rule by allowing judges to increase the statutory maximum punishment for an offense beyond that authorized by the jury's verdict or the plea agreement. The district court, relying on those provisions, found that Robison's crime caused damages to an insurance company and ordered him to pay restitution in that amount. Because that violated Robison's Sixth Amendment jury-trial right, I would vacate the restitution portion of Robison's sentence. I would not apply the harmless-error rule because the State doesn't raise it. And even if it had, the error could not have been 406 COURT OF APPEALS OF KANSAS VOL. 58

State v. Robison harmless here because no Kansas law currently provides a procedure for empaneling a jury to decide restitution. See Washington v. Recuenco, 548 U.S. 212, 217-18, 126 S. Ct. 2546, 165 L. Ed. 2d 466 (2006); State v. Horn, 291 Kan. 1, 10, 238 P.3d 238 (2010); State v. Kessler, 276 Kan. 202, Syl. ¶ 8, 73 P.3d 761 (2003).

The Section 5 Claim

Robison's jury-trial right can come either from the federal constitution or its Kansas counterpart. Even if Robison had no jury-trial right under the Sixth Amendment, I would hold that he had one under Section 5 of the Kansas Constitution Bill of Rights. As the majority notes, Section 5 protects the jury-trial right as it existed in 1859 when Kansas ratified its Constitution. Hilburn v. Enerpipe Ltd., 309 Kan. 1127, 1132, 442 P.3d 509 (2019) (plurality opinion); Wheeler v. Caldwell, 68 Kan. 776, 780, 75 P. 1031 (1904); Ross v. Crawford County Comm'rs, 16 Kan. 411, 418 (1876). If juries decided a factual issue in 1859, then a statute that allows judges to decide the issue violates Section 5. Hillburn, 309 Kan. at 1133-34. No one disputes that if Robison had a jury-trial right under Section 5, the restitution statutes deprived him of that right by allowing a judge to decide the facts needed to support his restitution award. The issue is whether juries would have decided those facts in 1859. Robison argues they would have for two reasons. First, he analogizes restitution to causation and damages in a civil case, issues decided by Kansas juries at statehood. Second, he cites Kansas Territorial Statutes that purportedly show that juries also decided restitution in 1859. The majority rejects Robison's civil-claim analogy by empha- sizing restitution's criminal attributes. Criminal restitution and civil damages, the majority explains, are separate remedies under Kansas law. After all, a victim can still recover civil damages after a judge awards restitution, and a judge can still award restitution after the victim has recovered civil damages. These differences convince the majority that restitution should not be treated as civil damages under Section 5. For the majority, restitution is something of a Goldilocks remedy—not too punitive to trigger the Sixth Amendment, not too VOL. 58 COURT OF APPEALS OF KANSAS 407

State v. Robison compensatory to trigger Section 5. No, the majority says, it's just right. On the Sixth Amendment claim, the majority says restitution is victim compensation, not punishment. It describes restitution with language that courts use to describe damages in a civil case. Compare 58 Kan. App. 2d at 388 ("[Restitution] is intended to restore the victims . . . to the position they found themselves in prior to a defendant's commission of the offense that caused the injury or damage."), with Burnette v. Eubanks, 308 Kan. 838, Syl. ¶ 4, 425 P.3d 343 (2018) ("The purpose in awarding damages is to make a party whole by restoring that party to the position the party was in prior to the injury."). Now on the Section 5 claim, the majority plays up restitution's criminal characteristics. In theory, perhaps some monetary award could be just right, neither fish nor fowl, and avoid scrutiny under both the Sixth Amendment and Section 5. But that can't be the case here. If we focus on restitution as compensation for loss, not punishment, we know that a victim can enforce a restitution award just like a civil judgment. K.S.A. 2017 Supp. 21-6604(b)(2); K.S.A. 60-2401. And although a restitution award will not bar the victim from later seeking civil damages, it will reduce the victim's recovery in the civil case by "the amount of any restitution paid." K.S.A. 60- 4304(b); Applegate, 266 Kan. at 1078-79. So even if restitution is somehow treated as nonpunitive, it still works just like causation and damages in a civil case. Because juries decided those issues in Kansas in 1859, the restitution statutes necessarily infringe on Section 5's right to jury trial by allowing judges to decide those issues. Similarly, if we focus on the punishment side instead of compensation for loss, there's more to Section 5 than its application to the recovery of civil damages or their equivalent: the Kansas Su- preme Court has made clear that Section 5 applies in criminal cases too. Love, 305 Kan. at 736. For example, it's well-established that juries must decide guilt in a criminal case, though they need not decide legal issues like whether to instruct a jury on a lesser-included offense or whether one offense is a lesser-included offense of another. 305 Kan. at 736. Here, whether a defendant's crime caused damage or loss to a victim is an issue of fact. Hall, 408 COURT OF APPEALS OF KANSAS VOL. 58

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297 Kan. at 712. The question, then, is whether juries would have had to find that fact in 1859. In 1859, juries in criminal cases involving theft offenses had to make a factual finding about the value of the stolen property. Kan. Terr. Stat. 1859, ch. 27, §219; ch. 28, §§ 72-74, 82-88, 91. The jury's property valuation affected the severity of the defendant's punishment—the punishments were more severe for property worth $20 or more (grand larceny) than for property worth less than $20 (petty larceny). Kan. Terr. Stat. 1859, ch. 28, §§ 72-74. Once the jury had valued the property, the judge could impose a punishment authorized for that type of larceny (unless the jury had specified a punishment in the verdict). Kan. Terr. Stat. 1859, ch. 27, §§ 219-221. The property-valuation finding for theft offenses is equivalent to the damage-or-loss finding for restitution. As the majority puts it, the valuation "affected the severity level of the offense." 58 Kan. App. 2d at 386. Juries had to determine how much the property was worth because that finding "affected the appropriate sentence to be imposed on the defendant." 58 Kan. App. 2d at 386. So too with a damage-or-loss finding for restitution. That finding affects the severity of the defendant's sentence. If the crime caused no damage or loss, the judge cannot award any restitution; otherwise, the judge can award up to the full damage-or-loss amount. Because juries would have made the damage-or-loss finding in 1859, I would hold that Section 5 requires that they still make that finding today. The majority concludes otherwise because Robison has not shown that juries decided restitution in 1859. That asks the wrong question. The key question isn't whether judges awarded restitution in Kansas in 1859, but whether juries would have found the facts needed to support a restitution award at that time. Juries, not judges, in 1859 would have decided whether the defendant's crime caused damage or loss to a victim. On that basis, I would hold that Robison had a right to a jury trial under Section 5. In sum, Robison had a right to have a jury determine the amount of the damage or loss he caused to any victim of his crime. That right was not honored. I would vacate the restitution award.