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 60, No. 3

Opinions filed in June – July 2021

Cite as 60 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. HENRY W. GREEN JR...... Leavenworth HON. THOMAS E. MALONE ...... Wichita HON. STEPHEN D. HILL ...... Paola HON. MICHAEL B. BUSER ...... 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 HON. AMY FELLOWS CLINE………..……………...Valley Center HON. LESLEY ANN ISHERWOOD..………………...... Hutchinson HON. JACY J. HURST....………………...... Lawrence

OFFICERS:

Reporter of Decisions ...... SARA R. STRATTON Clerk ...... DOUGLAS T. SHIMA Judicial Administrator……………...……….STEPHANIE BUNTEN Disciplinary Administrator ...... STANTON A. HAZLETT

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KANSAS COURT OF APPEALS TABLE OF CASES 60 Kan. App. 2d No. 3

PAGE

City of Wichita v. Trotter ...... 339 In re A.W...... 296 J.B.B. v. J.L.B...... 310 McLean v. National Union Fire Ins. Co...... 283 Rodina v. Castaneda...... 384 Rowell v. State ...... 235 State v. Betts ...... 269 State v. Foster...... 243 State v. Rodriguez ...... 320 State v. Sheets ...... 378

(IV) UNPUBLISHED OPINIONS OF THE COURT OF APPEALS

DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

Araujo v. State ...... 122,860 Reno ...... 07/02/2021 Affirmed Bankes v. Prisoner Review Reversed; Bd...... 123,424 Leavenworth ...... 06/11/2021 remanded with directions Beltz v. State ...... 122,880 Sedgwick ...... 07/09/2021 Affirmed Boos v. Marks ...... 122,788 Wyandotte ...... 07/16/2021 Affirmed; remanded Bowens v. Greenwood County Hospital ...... 122,532 Greenwood ...... 07/16/2021 Affirmed Burris v. Kansas Dept. of Revenue ...... 122,914 Cloud ...... 07/02/2021 Affirmed C.B. v. Bailey ...... 122,581 Dickinson ...... 06/11/2021 Affirmed in part; dismissed in part Chanthaseng v. State ...... 122,390 Sedgwick ...... 06/11/2021 Affirmed City of Eureka v. Clark ...... 122,669 Greenwood ...... 06/11/2021 Affirmed CRK Development v. Buckhead Lakeside Homeowers Ass'n ...... 123,048 Sedgwick ...... 07/02/2021 Affirmed Delaware Ridge Homes Affirmed; Assn. v. Maddy ...... 122,061 Wyandotte ...... 06/11/2021 remanded Dulaney v. State ...... 122,681 Geary ...... 06/25/2021 Convictions affirmed; sentence vacated; case remanded for resentencing Ferguson v. State...... 122,209 Cowley...... 06/11/2021 Affirmed Friday v. State ...... 122,555 Douglas ...... 07/09/2021 Affirmed Frontier Investment Banc Affirmed; Corp. v. Withers ...... 122,659 Johnson ...... 06/18/2021 remanded with directions Gudenkauf Tree Svc. v. Jacobs ...... 122,028 Nemaha ...... 06/25/2021 Affirmed Guzzo v. Heartland Plant Innovations ...... 121,811 Workers Comp. Bd 07/16/2021 Affirmed Hoskinson v. Heiman ...... 122,120 Finney ...... 06/04/2021 Affirmed In re Adoption of E.S...... 123,301 Riley ...... 07/09/2021 Affirmed In re Care and Treatment of Barnett ...... 123,103 Ellsworth ...... 07/16/2021 Affirmed In re Care and Treatment of Straith ...... 123,458 Brown ...... 07/09/2021 Affirmed In re D.H...... 123,461 Gove ...... 06/11/2021 Appeal dismissed

(V)

DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

In re G.G...... 123,479 Saline ...... 06/25/2021 Affirmed In re Marriage of Biernacki . 122,594 Finney ...... 06/11/2021 Affirmed In re Marriage of Blosser ..... 123,225 McPherson ...... 06/18/2021 Reversed; remanded In re Marriage of Leming .... 122,603 Sedgwick ...... 06/18/2021 Affirmed In re Marriage of Rees ...... 123,206 Ellis...... 07/16/2021 Affirmed In re R.C...... 123,294 Geary ...... 06/18/2021 Affirmed Jamerson v. Heimgartner ..... 123,015 Reno ...... 06/11/2021 Affirmed Jenkins v. State ...... 122,906 Saline ...... 07/16/2021 Reversed; remanded with directions Johnson County Bd. of Comm'rs v. Jorgensen ...... 122,244 Johnson ...... 06/04/2021 Appeal dismissed L.G. v. I.R...... 122,219 Seward ...... 06/25/2021 Sentence vacated Lynn v. Ross ...... 119,719 Leavenworth ...... 06/11/2021 Affirmed Nichols v. State ...... 123,043 Leavenworth ...... 07/09/2021 Reversed; remanded with directions Porubsky v. Long ...... 120,727 Shawnee...... 06/11/2021 Affirmed Rutledge v. State ...... 122,898 Edwards ...... 06/25/2021 Affirmed Saquic v. State ...... 122,623 Seward ...... 06/04/2021 Affirmed Shine v. Kansas State Bd. of Healing Arts...... 121,742 Johnson ...... 06/11/2021 Reversed State ex rel. Secretary, Department for Children and Families v. Cares ...... 121,976 Shawnee...... 06/11/2021 Affirmed State v. Amaro ...... 122,642 Ford ...... 07/02/2021 Affirmed State v. Barnett ...... 123,116 Saline ...... 06/04/2021 Affirmed in part; dismissed in part State v. Blick ...... 122,777 Sedgwick ...... 06/18/2021 Affirmed State v. Brady ...... 122,707 Barton ...... 06/11/2021 Affirmed State v. Brown ...... 122,986 Wyandotte ...... 06/25/2021 Affirmed State v. Buchanan ...... 123,324 Atchison...... 07/02/2021 Reversed; remanded with directions State v. Burrus ...... 123,429 Sedgwick ...... 07/02/2021 Affirmed State v. Cleaver ...... 122,757 Sedgwick ...... 06/18/2021 Affirmed State v. Copridge...... 122,751 Sedgwick ...... 06/04/2021 Affirmed State v. Corby ...... 122,584 Sedgwick ...... 06/04/2021 Affirmed in part; dismissed in part State v. Cusick ...... 122,416 Sedgwick ...... 06/25/2021 Affirmed State v. Dillard ...... 122,836 Miami ...... 07/16/2021 Reversed; remand with directions State v. Fagan ...... 122,605 Jefferson ...... 06/25/2021 Affirmed State v. Garascia ...... 122,969 Shawnee...... 06/04/2021 Affirmed State v. Goodro ...... 121,944 Reno ...... 06/11/2021 Affirmed

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

State v. Grant-Adams ...... 121,833 Crawford ...... 06/25/2021 Affirmed in part; reversed in part; sentence vacated; case remanded with directions State v. Gwyn ...... 122,501 Sedgwick ...... 06/18/2021 Affirmed State v. Hameen ...... 122,746 Sedgwick ...... 06/11/2021 Affirmed State v. Hastings ...... 122,184 Miami ...... 07/02/2021 Affirmed State v. Heit ...... 122,366 Finney ...... 06/25/2021 Affirmed in part; vacated in part; remanded with directions State v. Heller ...... 123,132 Reno ...... 06/11/2021 Affirmed in part; dismissed in part State v. Henderson ...... 123,131 Sedgwick ...... 07/02/2021 Affirmed State v. Hill ...... 123,300 Reno ...... 07/02/2021 Affirmed State v. Huffstutler ...... 123,467 Shawnee...... 06/18/2021 Affirmed State v. Johnson ...... 123,415 123,416 123,417 Sedgwick ...... 06/18/2021 Affirmed State v. Jones ...... 122,756 Sedgwick ...... 06/11/2021 Affirmed State v. Keith ...... 122,456 Johnson ...... 06/11/2021 Affirmed in part; vacated in part; remanded with directions State v. Kelley ...... 122,929 Atchison...... 06/04/2021 Appeal dismissed State v. Kincaid ...... 122,663 Thomas ...... 06/11/2021 Appeal dismissed State v. Lessman ...... 120,899 Shawnee...... 06/11/2021 Affirmed State v. Livengood ...... 122,241 Douglas ...... 06/11/2021 Affirmed State v. Love ...... 123,308 Wyandotte ...... 07/16/2021 Affirmed State v. Manwarren ...... 123,344 Sedgwick ...... 07/02/2021 Affirmed State v. Martin ...... 122,496 Sedgwick ...... 06/11/2021 Affirmed State v. McKellip ...... 122,915 Sedgwick ...... 06/25/2021 Affirmed State v. Medlock ...... 123,354 Sedgwick ...... 07/02/2021 Affirmed State v. Miller ...... 123,039 Leavenworth ...... 06/11/2021 Affirmed State v. Morphis ...... 123,243 Shawnee...... 06/18/2021 Affirmed State v. Perales ...... 122,778 Sedgwick ...... 06/04/2021 Affirmed State v. Perez ...... 123,095 Seward ...... 07/09/2021 Affirmed State v. Potter ...... 122,912 Shawnee...... 06/04/2021 Affirmed State v. Reed ...... 123,238 Shawnee...... 06/11/2021 Affirmed State v. Resto-Isaac ...... 122,226 122,227 122,228 Sedgwick ...... 06/11/2021 Appeal dismissed State v. Rivera-Rodriguez .... 122,840 Sedgwick ...... 06/11/2021 Affirmed

(VII)

DOCKET DISTRICT DATE OF TITLE NUMBER COURT DECISION DECISION

State v. Rogers ...... 123,290 Johnson ...... 06/18/2021 Affirmed in part; dismissed in part State v. Romans ...... 122,725 Reversed; 122,726 Sedgwick ...... 06/25/2021 remanded for further proceedings State v. Rosiere ...... 122,881 Sedgwick ...... 06/11/2021 Affirmed State v. Shelton ...... 123,500 Sedgwick ...... 06/18/2021 Affirmed State v. Shifferaw ...... 122,863 Johnson ...... 06/18/2021 Affirmed State v. Sieg ...... 121,862 Leavenworth ...... 06/11/2021 Affirmed State v. Sims ...... 122,448 Saline ...... 06/11/2021 Affirmed State v. Singleton ...... 123,493 Lyon ...... 06/18/2021 Affirmed State v. Smith ...... 122,285 Butler ...... 07/02/2021 Reversed, sentence vacated; case remanded with directions State v. Smith ...... 122,003 Leavenworth ...... 06/11/2021 Affirmed State v. Snider ...... 123,229 Montgomery ...... 06/18/2021 Affirmed State v. Spradling ...... 122,973 122,974 Sedgwick ...... 07/16/2021 Affirmed State v. Stevenson ...... 123,130 Sedgwick ...... 06/11/2021 Appeal dismissed State v. Strong ...... 122,732 Sedgwick ...... 07/02/2021 Appeal dismissed State v. Stubby ...... 122,872 Reno ...... 07/02/2021 Affirmed State v. Sutton ...... 122,038 Johnson ...... 06/25/2021 Affirmed State v. Tafolla ...... 122,331 Sedgwick ...... 06/11/2021 Affirmed State v. Taylor ...... 122,668 Reno ...... 06/25/2021 Affirmed State v. Teal ...... 121,454 Labette ...... 06/11/2021 Affirmed State v. Terronez ...... 123,089 Sedgwick ...... 06/04/2021 Affirmed State v. Towner ...... 121,043 Shawnee...... 06/25/2021 Affirmed State v. Trimmell ...... 123,184 Sedgwick ...... 06/04/2021 Affirmed State v. Vessar ...... 122,769 Shawnee...... 06/11/2021 Affirmed State v. Waggoner ...... 122,792 Jefferson ...... 06/11/2021 Appeal dismissed State v. Walker ...... 123,475 Sedgwick ...... 07/02/2021 Affirmed State v. Walker ...... 122,222 Sedgwick ...... 06/25/2021 Affirmed State v. Whiteeagle ...... 122,617 Thomas ...... 07/16/2021 Affirmed in part; sentence vacated in part; case remanded with directions State v. Williams ...... 122,537 Franklin ...... 07/09/2021 Affirmed State v. Williams ...... 123,256 Sedgwick ...... 06/18/2021 Reversed; remanded with directions State v. Willis ...... 122,987 Sedgwick ...... 06/04/2021 Affirmed State v. Wilson ...... 122,160 Kearny ...... 06/04/2021 Affirmed State v. Wise ...... 122,909 Lyon ...... 07/02/2021 Affirmed

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

State v. Young ...... 120,756 Sedgwick ...... 06/04/2021 Affirmed State v. Zeiner ...... 122,682 Marion ...... 06/11/2021 Affirmed in part; reversed in part Steele v. State ...... 122,754 Geary ...... 06/11/2021 Reversed; remanded with directions Thomas v. State...... 122,885 Johnson ...... 06/18/2021 Affirmed Washington v. State ...... 123,049 Leavenworth ...... 07/16/2021 Affirmed White v. RGV Pizza Hut ...... 122,239 Workers Comp. Bd 06/11/2021 Affirmed; remanded with directions Wilmington Savings Fund Reversed; Society v. Campbell ...... 122,653 Johnson ...... 06/11/2021 remanded with directions Zimero v. Tyson Fresh Meats 122,905 Workers Comp. Bd 07/16/2021 Affirmed

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SUBJECT INDEX 60 Kan. App. 2d No. 3 (Cumulative for Advance Sheets 1, 2 and 3) Subjects in this Advance Sheet marked with *

PAGE

APPEAL AND ERROR:

Challenge to Criminal History—Illegal Sentence Can be Corrected Any Time. A criminal defendant can challenge his or her criminal history for the first time on appeal because the misclassification of a prior conviction results in an illegal sentence that can be corrected at any time. State v. Rankin …………… 60

— Unconstitutional Statute Not Used for Criminal History Scoring. Prior convictions of a crime defined by a statute that has since been determined unconstitutional by an appellate court shall not be used for criminal history scoring purposes. State v. Rankin …………………………………………………………..…...60

Direct Appeal of Criminal Defendant—Change in Law Applicable. A criminal defendant will receive the benefit of any change in the law that occurs while the defendant's direct appeal is pending. State v. Rankin ……………..……… 60

Review of Unpreserved Claim—Appellate Review. 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, an appellate court has no obligation to do so. State v. Foster …………………….… 243*

Trial Court May Not Raise Nonjurisdictional Issues. It is error for a trial court to raise, sua sponte, nonjurisdictional issues. City of Wichita v. Trotter ……………………………….....………….. 339*

APPELLATE PROCEDURE:

Appeal of District Judge Pro Tem's Order Filed with Court of Appeals. A party aggrieved by an order issued by a district judge pro tem who is regularly admitted to practice law in Kansas, and such order arises out of a matter that falls within the jurisdiction of a district magistrate judge, must file their appeal with the Court of Appeals. J.B.B. v. J.L.B. ………...… 310*

Constitutional Challenge First Time on Appeal—Rule 6.02 Requirements. Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) requires a party to explain why this court should consider a constitutional challenge for the first time on appeal. A party must offer more than a conclusory, unsupported statement to satisfy its burden in this regard. State v. Foster ……………………………………. 243*

Interpretation of Mandate—Appellate Review. Generally, the interpretation of an appellate court mandate and whether the district court complied with it are questions of law subject to unlimited review. State v. Rodriguez …………….….. 320*

Mandate Rule—Application. The mandate rule does not constitute an inflexible jurisdictional barrier to a party's ability to raise a new issue following a remand, but where a remand order is stated in specific terms following

(X)

60 KAN. APP. 2d SUBJECT INDEX XI

PAGE

deliberate litigation choices by the parties, the parties are not free to endlessly expand on the issues the district court may consider in the absence of new, or newly discovered, facts. State v. Rodriguez …………………….. 320*

ATTORNEY AND CLIENT:

Unauthorized Practice of Law Prohibited—Protection of Public. Pro- hibiting the unauthorized practice of law protects the public. A party may be bound by his legal representative. When that representative is a licensed attorney the public reasonably expects that the representative's character, knowledge, and training are equal to the responsibility. And if that expectation is not met, then remedies and sanctions are available against a lawyer that are not available against a nonlawyer, including misconduct sanctions and malpractice actions. Schaake v. City of Lawrence ………..……….. 88

ATTORNEY FEES:

Specific Authorization for Attorney Fees by Statute for Award. In order to give a court the ability to award attorney fees, a statute must specifically authorize recovery of attorney fees rather than use general language such as "costs" or "expenses." The language in K.S.A. 2020 Supp. 44-532a does not specifically authorize attorney fees. Schmidt v. Trademark ……..……. 206

Statutory Authority or Agreement by Parties for Court to Award Fees. A Kansas court may not award attorney fees unless there is statutory authority to do so or there is an agreement by the parties for the award of attorney fees. Schmidt v. Trademark …………………………………. 206

CITIES AND MUNICIPALITIES:

Broad Police Powers—Enactment of Ordinances. Municipalities have broad police powers to enact ordinances regulating or restricting certain activities to promote the health, safety, and welfare of the public. City of Wichita v. Trotter …………………………………………..…. 339*

City of Wichita Ordinance Found Not Unconstitutionally Overbroad in This Case. The City of Wichita's after-hours establishment licensing ordinance, Wichita Municipal Ordinance 3.06.030.A., is not unconstitutionally overbroad as its application does not create a realistic danger of significantly compromising Wichitans' expressive rights under the First Amendment to the United States Constitution. City of Wichita v. Trotter ………….…. 339*

CIVIL PROCEDURE:

Default Judgment Against Tortfeasors--Plaintiff Entitled to Judicial Determination of Comparative Fault in This Case. When the trial court entered default judgment in a separate action against other tortfeasors, it made no apportionment of fault or determination of comparative fault. Thus, in this case, plaintiff is entitled to a judicial determination of comparative fault, and, if it is determined defendant was at least partially at fault, the trial court can order defendant to pay his proportionate share of damages. Rodina v. Castaneda …………………………………………… 384*

XII SUBJECT INDEX 60 KAN. APP. 2d

PAGE

If No Determination of Comparative Fault Plaintiff May Pursue Sepa- rate Actions Against Tortfeasors. A plaintiff may pursue separate actions against tortfeasors when there has been no trial and judicial determination of comparative fault. Once a plaintiff proceeds to trial and comparative fault is judicially determined, the plaintiff can no longer pursue other suits for damages arising out of the same occurrence. Rodina v. Castaneda ..… 384*

Protection from Abuse Act—Definition of Abuse. In relevant part, the Protection from Abuse Act defines "abuse" as the occurrence of at least one or more of the following between intimate partners or household members: (1) intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury; or (2) intentionally placing, by physical threat, another in fear of imminent bodily injury. J.B.B. v. J.L.B. …………… 310*

— Purpose of Act—Liberal Construction to Protect Victims. The Pro- tection from Abuse Act, K.S.A. 60-3101 et seq., should be construed liberally to promote the protection of victims of domestic violence from bodily injury or threats of bodily injury and to facilitate access to judicial protection for the victims, whether represented by counsel or proceeding pro se. J.B.B. v. J.L.B. ………………………………………………...……… 310*

Protection from Abuse Order—District Magistrate Judge Has Author- ity to Hear—Appeal Review to Court of Appeals. A protection from abuse order is considered a civil order of protection and one which a district magistrate judge is vested with the authority to preside over. As a result, the proper appellate avenue for a party aggrieved by a protection from abuse order issued by a district magistrate judge is to pursue review by the Court of Appeals. J.B.B. v. J.L.B. …………………………………………… 310*

CONSTITUTIONAL LAW:

Challenges to First Amendment Rights—Distinction. A party may challenge a law as expressly violating a specific right under the First Amend- ment to the United States Constitution. At the same time, a party may also challenge a law as being so overbroad as to infringe upon protected First Amendment rights. But these constitutional challenges are distinct from one another. City of Wichita v. Trotter ……………………………...…….. 339*

Equal Protection Challenge—Court Utilizes Three-Step Process. The court evaluates an equal protection challenge using a three-step process. First, the court considers whether the legislation creates a classification resulting in different treatment of similarly situated individuals. Second, if the statute treats arguably indistinguishable individuals differently, then the court determines the appropriate level of scrutiny to assess the classification by examining its nature or the right at issue. Third, the court applies that level of scrutiny to the statute. State v. Dixon …………………….……. 100

— Rational Basis Test. Under the rational basis test, a law is constitutional, despite some unequal classification of citizens, if the classification bears some reasonable relationship to a valid legislative objective. State v. Dixon ……….…. 100

60 KAN. APP. 2d SUBJECT INDEX XIII

PAGE

Fourteenth Amendment's Equal Protection Law—Application to States. The Equal Protection Clause of the Fourteenth Amendment to the United States Con- stitution provides that no state shall deny to any person within its jurisdiction the equal protection of the laws. State v. Dixon ……………………….…….. 100

Fourth Amendment Right—Reasonable Expectation of Privacy Re- quirement. The Fourth Amendment to the United States Constitution protects the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. However, a defendant must have a reasonable expectation of privacy in the place searched before determining whether such defendant's Fourth Amendment rights were violated. State v. Scheuerman…………...……………………………….. 48

Standing—Challenge to Law Alleging Violation of First Amendment Right—Requirements. To have standing to challenge a law as expressly violating a specific right under the First Amendment to the United States Constitution, a party must establish that the disputed law affected him or her in some way. To establish that this law expressly violates a specific First Amendment right, a party must prove that the law constitutes a content- based law, not a content-neutral law. A content-based law is a law that regulates expression that the government purposely adopted because of disagreement with the expression. A content-neutral law is a law that the government adopted for a reason other than because of disagreement with the expression being regulated. City of Wichita v. Trotter ……………….. 339*

— First Amendment Challenge—Establishing Law Is Unconstitution- ally Overbroad—Requirements. To have standing to challenge a law as being so overbroad as to infringe upon rights protected by the First Amend- ment to the United States Constitution, a party need not establish that he or she was personally injured by the disputed law because the mere existence of the disputed law may cause persons not before the court to refrain from conduct protected by the First Amendment. To establish that this law is unconstitutionally overbroad contrary to the First Amendment, a party must prove (1) that the protected activity is a significant part of the law's target and (2) that there exists no satisfactory method of severing the law's constitutional from its unconstitutional applications. If a party argues that the law prohibits protected First Amendment conduct, not merely protected First Amendment speech, that party must further prove that the law's overbreadth is not only real, but substantial, in relation to the law's plainly legitimate sweep. City of Wichita v. Trotter ……………………………….…….. 339*

CONTEMPT:

Court May Find Party in Indirect Contempt—Statutory Procedures Court Must Follow. Before finding a party in indirect contempt of court, the court must follow the statutory procedures set out in K.S.A. 2020 Supp. 20-1204a. In re Care and Treatment of Saiz ………………….………. 178

XIV SUBJECT INDEX 60 KAN. APP. 2d

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COURTS:

Appellate Courts—Factual Findings. Generally, appellate courts do not make factual findings. State v. Rankin ……………………………………..……… 60

Authority to Enter Sanctions—Sanctions Consistent with Relevant Statutes. A court has the inherent authority to enter sanctions that are reasonably necessary for the administration of justice so long as the sanctions are not inconsistent with the relevant statutes. In re Care and Treatment of Saiz …………………………..…………. 178

Construction of Statutes—Avoid Unreasonable Results. Courts must construe statutes to avoid unreasonable or absurd results and presume the Legislature does not intend to enact meaningless legislation. State v. Terrell ………………………………………………………….. 39

Court's Exercise of Power to Sanction Party—Use of Restraint and Caution. Because of its potency, a court must exercise its power to sanction a party for noncompliance with a court order with restraint and caution. Courts must be on guard against confusing offenses to their sensibilities with obstruction to the administration of justice. In re Care and Treatment of Saiz …………………………..………… 178

Judicial Dictim Definition—Judicial Dictim Not Binding. A judicial dictum is an expression of opinion on a question directly involved in a particular case, argued by counsel, and deliberately ruled on by the court, although not necessary to a decision. While not binding, judicial dictum is entitled to greater weight than obiter dictum and should not be lightly disregarded by lower courts. Obiter dictum is something said in passing. Obiter dictum is an expression of opinion on a collateral question not directly involved in the case. Schmidt v. Trademark …………………….……… 206

Legislature—Presumption of Existing Law and Statutes. Appellate courts presume the Legislature acted with full knowledge of existing law and statutory subject matter, including judicial opinions interpreting Kansas statutes. State v. Terrell …………………………….…………..……….. 39

Statutory Authority for Courts to Find Someone in Contempt of Court—Indirect Contempt under Statute. Since 1897, courts in Kansas have also had the statutory authority to find someone in contempt of court. K.S.A. 20-1201 et seq. A court may sanction the failure to comply with an order in a civil case through the indirect contempt of court procedure set out in K.S.A. 2020 Supp. 20-1204a. In re Care and Treatment of Saiz ………………………..……………. 178

CRIMINAL LAW:

Claims of Self-Defense and Immunity—Distinct Concepts. Self-defense and immunity are distinct concepts, and the distinction between the two concepts is effectively lost if a case is erroneously permitted to go to trial. Since K.S.A. 2020 Supp. 21-5231 confers true immunity, district courts

60 KAN. APP. 2d SUBJECT INDEX XV

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evaluating claims of immunity must perform a procedural gatekeeping function and prevent cases where defendants qualify for immunity from going to trial. State v. Betts ………………………………………..…….. 269*

Criminal History of Defendant—Burden of Proof on State. The State has the burden to prove a defendant's criminal history. State v. Rankin ………………………………………………….….…… 60

Criminal Threat is Threat to Commit Violence Under Statute. K.S.A. 2020 Supp. 21-5415(a)(1) explicitly states a criminal threat is a threat to commit violence. A simple threat is not enough. Otherwise any person who intentionally threatens another with an intent to place another in fear, no matter the nature of the threat, could be guilty of criminal threat. State v. McFarland ………………………………………...…………….. 1

Illegal Sentencing—Question of Law—Appellate Review. Appellate courts exercise unlimited review on whether a sentence is illegal within the meaning of K.S.A. 22-3504 because it is a question of law. State v. Terrell ………………………………………………………….. 39

Intentional Criminal Threat—Intent to Place Another in Fear. Inten- tional criminal threat is a threat to commit violence communicated with intent to place another in fear. State v. McFarland …………….……….….. 1

Kansas Sentencing Guidelines Act—Convictions Based on Classification at Time of Conviction. The reasonable and sensible application of the revised Kan- sas Sentencing Guidelines Act (KSGA), K.S.A. 2020 Supp. 21-6801 et seq., is for post-KSGA Kansas convictions to be classified based on the classification in effect at the time of the prior conviction. State v. Terrell …………………...….……. 39

Lesser Included Offense—Possession of Methamphetamine. Possession of methamphetamine with intent to distribute contrary to K.S.A. 2020 Supp. 21- 5705(d)(3)(B), a severity level 3 drug felony, is a lesser included offense of possession of methamphetamine with intent to distribute contrary to K.S.A. 2020 Supp. 21-5705(d)(3)(C), a severity level 2 drug felony, because it is a lesser degree of the same crime. State v. Scheuerman…………………………………….... 48

— Sufficiency of Evidence—Application. If the facts are sufficient to convict the defendant of the charged crime, those same facts are also sufficient to convict on any lesser included offense, provided all the elements of the lesser included offense are identical to some of the elements of the crime charged. This is not so where the lesser included offense is a lesser degree of the charged crime and all its elements are not identical to some of the elements of the charged crime. State v. Scheuerman…………………………………………………..…….. 48

Lesser Included Offenses—Definition under Statute. K.S.A. 2020 Supp. 21- 5109(b) defines lesser included offenses as including not only offenses in which the elements of the lesser crime are identical to some of the elements of the crime charged, but also lesser degrees of the same crime. State v. Scheuerman…….. 48

XVI SUBJECT INDEX 60 KAN. APP. 2d

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Motion for Immunity—No Disputed Facts—Appellate Review. When there are no disputed material facts on a motion for immunity under K.S.A. 2020 Supp. 21-5231, an appellate court is presented with a pure question of law over which it exercises unlimited review. State v. Betts ………….. 269*

Motion for Immunity Based on Self-Defense—District Court's Consid- erations. When evaluating a motion for immunity on the basis of self-defense pursuant to K.S.A. 2020 Supp. 21-5231, a district court must consider the totality of circumstances, weigh the evidence presented without deference to the State, and determine whether the State established probable cause that a defendant's use of force was not statutorily justified. State v. Betts ………………………………………………………….. 269*

— Liability if Excessive Force Used by Defendant. A defendant is only criminally liable for excessive force if self-defense is first found to exist. State v. Betts ……………………………………………………..….. 269*

—Application of Two-Prong Test When Defendant Uses Deadly Force. In a self-defense context, a two-prong test applies when a defendant uses deadly force. The first prong is subjective and requires a showing that the defendant sincerely and honestly believed it was necessary to use deadly force to protect the defendant or a third person. The second prong is objective and requires a showing that a reasonable person in the defendant's circumstances would have perceived as necessary the use of deadly force to prevent imminent death or great bodily injury to the defendant or a third person. State v. Betts …………………………….………………..….. 269*

— Dog May Be Considered Deadly Weapon to Justify Deadly Force by Defendant. Depending on the manner in which it behaves, a dog may be considered a deadly weapon. In this instance, applying the two-prong test to the evidence presented at the hearing—which included the officer's belief that the dog was a pit bull and that it barked and lunged at the officer—the officer was justified in using deadly force to prevent imminent death or great bodily harm as required under K.S.A. 2020 Supp. 21-5222(b). State v. Betts …………..…………………………………………..….. 269*

Motion for Immunity under K.S.A. 21-5231—Requires Self-Defense Claim under K.S.A. 21-5222. To qualify for immunity under K.S.A. 2020 Supp. 21-5231, a defendant must have the ability to claim self-defense under K.S.A. 2020 Supp. 21-5222. The district court must then determine whether the use of force by the defendant seeking immunity is justified or unjustified. State v. Betts …………………………………….……….. 269*

Possession of Methamphetamine—Evidence of Quantity Element Must Be Sufficient. Evidence establishing that a defendant possessed at least 3.5 grams but less than 100 grams of methamphetamine is insufficient to satisfy the quantity element of possessing methamphetamine with intent to distribute contrary to K.S.A. 2020 Supp. 21-5705(d)(3)(B) because the quantity of drugs possessed is outside the element requiring possession of at least 1 gram but less than 3.5 grams. State v. Scheuerman…………………..………………….…...…….. 48

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Post-Remand Procedural Delay Is Due Process Challenge—Applica- tion of Four Barker v. Wingo Factors to Determine if Violation. Courts have classified claims of post-remand procedural delays as a due process challenge and usually apply the four constitutional speedy trial factors from Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972): the length of delay, the reason for the delay, the defendant's assertion of his or her right, and prejudice to the defendant in deciding whether the defendant's due process rights have been violated. State v. Rodriguez …….… 320*

Presentence Motion to Withdraw Plea—Good Cause Determination by District Court--Appellate Review. In a presentence motion to withdraw plea, an appellate court reviews a district court's good-cause determination for an abuse of discretion. The person claiming an abuse of discretion has the burden to establish the district court's decision was: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. The district court commits an error of fact when its findings are unsupported by substantial competent evidence. State v. Rodriguez .… 320*

Pretrial Immunity Motion—Two-Step Process for Determination of Probable Cause. District courts follow a two-step process when making the probable cause determination on a pretrial immunity motion. At the first step, the district court makes factual findings based on stipulations from the parties and the evidence presented, along with reasonable inferences drawn from them. As part of the first step, district courts must resolve evidentiary conflicts in favor of one party or the other. At the second step, district courts must make legal conclusions as to whether State has met probable cause burdens based on the factual findings. State v. Betts ………….……… 269*

Revocation of Probation and Imposition of Sentence—Court May Not Eliminate Postrelease-Supervision Period. When the district court revokes probation and imposes a prison sentence on a felony defendant under K.S.A. 2020 Supp. 22-3716(c), K.S.A. 2020 Supp. 22-3716(f) prevents the sentencing court from altogether eliminating a postrelease-supervision period. State v. Sheets …………………………………….…………….. 378*

Self-Defense Immunity Motion—Probable Cause Determination. Prob- able cause, in the self-defense immunity setting, means the facts as found by the district court are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of a defendant's guilt despite a claim of justified use-of-force immunity. State v. Betts …….. 269*

Sentencing—Application of Statutory Double Rule to Comply with Equal Protection Clause. For K.S.A. 2020 Supp. 21-6819(b)(4) to comply with the Equal Protection Clause of the Fourteenth Amendment, when two or more cases are consolidated for trial because all the charges could have been brought in one charging document, and the defendant is convicted of multiple charges at trial, the defendant shall receive the benefit of the statutory double rule at sentencing regardless of whether the convictions arise from multiple counts within a single information, complaint, or indictment. State v. Dixon ……………………..….. 100

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— Sixth Amendment Violation Based on Apprendi—Harmless Error Analysis. A Sixth Amendment violation based on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), is not a structural error and is therefore subject to a harmless-error analysis. State v. Letterman …………………………………………...……….. 222

— Sixth and Fourteenth Amendments' Application to Sentencing. The Sixth and Fourteenth Amendments to the United States Constitution require that any fact, other than a prior conviction, that increases a crime's penalty beyond the statutory maximum must be submitted and proved to a jury beyond a reasonable doubt. Findings that result in the extension of postrelease supervision increase the duration of a person's sentence and are thus subject to these same constitutional limitations. State v. Letterman ………….. 222

— Statutory Double Rule Violated Equal Protection Rights of Defend- ant Under these Facts. As applied to the facts in this case, where the defendant's cases were consolidated for trial because all the charges could have been brought in one charging document, and the defendant was later convicted of multiple charges and sentenced separately in each case, the double rule found in K.S.A. 2020 Supp. 21-6819(b)(4) violates the defendant's equal protection rights under the Fourteenth Amendment. State v. Dixon …………………………………………………...……. 100

Sentencing for Multiple Convictions Arising from Multiple Counts— Double Rule. Under K.S.A. 2020 Supp. 21-6819(b)(4), commonly known as the "double rule," the total prison sentence imposed in a case involving multiple convictions arising from multiple counts within an information, complaint, or indictment cannot exceed twice the base sentence. State v. Dixon ………………………………………………...………. 100

Speedy Trial Docket Statute—Crowded Docket Exception. The crowded docket exception in K.S.A. 2020 Supp. 22-3402(e)(4) encompasses both the reason the court must change a trial date as well as the reason it cannot be rescheduled within the speedy trial deadline. State v. Foster ………………….……… 243*

Statutory Claim of Immunity—Consideration of Defendant's Claim of Self-Defense. In the context of a claim of immunity under K.S.A. 2020 Supp. 21-5231, Kansas law permits a district court to consider a defendant's claims of self-defense regardless of whether the State has charged the defendant with conduct that constitutes an intentional, knowing, or reckless crime. State v. Betts ……………………...…………………………… 269*

Statutory Definition of "Another." K.S.A. 2020 Supp. 21-5111(b) defines "another" as a person or persons as defined in the Kansas Criminal Code other than the person whose act is claimed to be criminal. Although a threat against "another" is a material element of criminal threat, the case-specific person who falls into that group is not. State v. McFarland ………………………………………..…….. 1

Threat to Commit Violence—Application. A threat to commit violence is a very broad category and can involve ordinary, spoken or written words or gestures that simply describe the threatened act of violence. It need not be in any particular form

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or in any particular words, it may be made by innuendo or suggestion, and it need not be made directly to the intended victim. State v. McFarland …...……….. 1

Threat to Kill Another—Specific Explanation Not Necessary. A threat to kill another need not include an explanation of the method of killing because ending someone's life is an inherent act of violence. State v. McFarland ………….….. 1

Withdrawal of Plea—Allowed to Withdraw before Sentence. A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before the sentence is adjudged. State v. Rodriguez ……………………………………………….…… 310*

EVIDENCE:

Admissibility of Expert Testimony—Court's Discretion. The district court, as evidentiary gatekeeper, has broad discretion to determine whether proposed expert testimony is admissible. And a district court has considerable leeway in deciding how to go about determining whether particular expert testimony is reliable. A court only abuses that discretion when no reasonable person would take the view it adopted or when it bases its decision on an error of law or fact. State v. Hatfield …………………..…..... 11

Admission of Evidence—Appellate Review. On review of a decision to admit evidence, appellate courts consider first whether the evidence is relevant. If the court finds the evidence is relevant, the reviewing court applies the statutory rules governing the admission or exclusion of evidence. State v. Dixon ……………………………………………..………….. 100

Erroneous Admission of Evidence—Disregarded if No Effect on Sub- stantial Rights of Parties—Appellate Review. The erroneous admission of evidence is disregarded if it does not affect the substantial rights of the parties. An appellate court must determine whether there is a reasonable probability that the error will or did affect the outcome of the trial in light of the entire record. The State, as the party benefitting from the error, bears the burden of proving the error harmless. State v. Dixon …….……….. 100

Expert Testimony—Rejection of Testimony is Exception. The rejection of expert testimony is the exception rather than the rule. Vigorous cross- examination, presentation of contrary evidence, and careful instruction on the burden of proof remain the traditional and appropriate means of attacking shaky but admissible evidence. State v. Hatfield …………………..... 11

Objection to Evidence under K.S.A. 60-404—Preserves Issue on Appeal. K.S.A. 60-404 requires a party to raise a timely and specific objection to evidence in order for it to be considered on appeal. This requirement ensures that a district court has the opportunity to act as the evidentiary gatekeeper at trial. State v. Hatfield ………………………………………………….………….. 11

Sufficiency of Evidence Challenge—Appellate Review. When a defendant challenges the sufficiency of the evidence, an appellate court reviews the evidence in a light most favorable to the State to determine whether a rational fact-finder

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could find the defendant guilty beyond a reasonable doubt. The court does not reweigh the evidence, resolve evidentiary conflicts, or reassess witness credibility. State v. Hatfield …………………………………………………...……….... 11

Sufficiency of Evidence Challenge on Stipulated Facts—Appellate Review. When the sufficiency of the evidence is challenged in a case decided on stipulated facts, an appellate court's review is unlimited, but the facts are still viewed in the light most favorable to the State when testing their sufficiency. Moreover, a defendant is precluded from challenging factual evidence within a stipulation by entering into a stipulation of facts, but a defendant can still challenge the legal effect of the stipulated facts. State v. Scheuerman…….……………………………... 48

HABEAS CORPUS:

Challenge to Counsel's Representation in 60-1507—Manifest Injustice Ex- ception Applicable if Claim Barred before It Arises. Barring a claim before it arises constitutes manifest injustice warranting an extension of the one-year limitation period in which to file a second motion under K.S.A. 60-1507 for the purpose of challenging counsel's representation in a prior 60-1507 proceeding. Rowell v. State …………………………………………….…………..….. 235*

Direct Appeal has One-Year Time Limit from Date of Mandate—Exception for Manifest Injustice. A 60-1507 motion is subject to a one-year filing limitation from the date the mandate issued in a direct appeal. That date "may be extended by the court only to prevent a manifest injustice." K.S.A. 2020 Supp. 60- 1507(f)(2). The court may consider a movant's reasons for failing to timely file a 60-1507 motion when determining whether the manifest injustice exception applies. Rowell v. State ……….………………………………………….….. 235*

One-Year Time Period for Filing 60-1507 Begins When Mandate Issued on First 60-1507. The one-year period for filing a 60-1507 motion to challenge counsel's representation in a prior 60-1507 proceeding begins when the mandate issued on that prior 60-1507 proceeding. Rowell v. State ………………………….. 235*

Prison Mailbox Rule—Courts Consider Date on Certificate of Service by Prisoner. Under the prison mailbox rule, we consider the date on the prisoner's certificate of service to be the date the prisoner gives the document to the authorities to mail, when the State presents no evidence to the contrary. Rowell v. State ……………………………………………………..…….. 235*

— Determines Date of Filing of Motion for Prisoner. The prison mailbox rule deems a motion to be filed on the date a prisoner gives a document to authorities to mail, rather than on the date the clerk of court stamps it as filed. Rowell v. State …………………………………...…………..………..….. 235*

INSURANCE:

Ambiguous Terms in Policy Construed against Insurance Company— Liberal Construction in Favor of Insured. When the terms of an insurance policy are ambiguous, the ambiguity is construed against the insurance company. Because the insurer prepares its own contracts, it has a duty to

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make the meaning clear. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language. Otherwise, the policy will be liberally construed in favor of the insured. The test is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. McLean v. National Union Fire Ins. Co. …………………..…………. 283*

Insured is Required to Notify Insurer of Tentative Settlement with Un- insured Tortfeasor. If a tentative agreement to settle for liability limits has been reached with an underinsured tortfeasor, written notice must be given by certified mail to the underinsured motorist coverage insurer by its insured. The underinsured motorist coverage insurer then has 60 days to substitute its payment to the insured for the tentative settlement amount. McLean v. National Union Fire Ins. Co. ……………………..………. 283*

Purpose of K.S.A. 40-284—Mandate of Uninsured and Underinsured Motorist Coverage in Kansas. The overall purpose of K.S.A. 40-284, the statute mandating uninsured and underinsured motorist coverage in all automobile policies, is to fill a gap in motor vehicle financial responsibility and compulsory insurance legislation. The coverage is intended to compensate innocent persons who are damaged through the wrongful conduct of a motorist who, because they are uninsured or underinsured and not financially responsible, cannot be made to respond in damages. McLean v. National Union Fire Ins. Co. ……………………..………. 283*

JUDGES:

District Magistrate Judge—Jurisdiction in Civil Cases—Exceptions. A district magistrate judge shall have the jurisdiction and power to preside over all civil cases, save for 13 specific controversies which they are expressly excluded from hearing absent the explicit consent of the parties. J.B.B. v. J.L.B. …………………………………………….…………. 310*

JURISDICTION:

District Courts have Jurisdiction of All Civil and Criminal Matters. Kansas district courts have general jurisdiction of all civil and criminal matters, unless otherwise provided by law. As a general matter, district courts have the subject-matter jurisdiction to consider disputes that a court might address unless some other statute limits that authority. In re A.W. …… 296*

Lack of Standing by Party—No Justifiable Case or Controversy. If a party lacks standing to challenge an action or to request a particular type of relief, then there is no justifiable case or controversy and the suit must be dismissed. Schaake v. City of Lawrence ………………………….……. 88

Lack of Standing by Party to File Suit—Request for Advisory Opinion. When a party who does not have standing to file suit nevertheless asks for relief, it is tantamount to a request for an advisory opinion. Advisory opinions are an executive, not a judicial, power. Schaake v. City of Lawrence ……………………………………..……. 88

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Lack of Standing of Litigant if No Personal Right or Interest at Issue in Case. A litigant who fails to show a personal right or interest at issue in the case lacks standing to proceed individually. Schaake v. City of Lawrence …………………………………..………. 88

Question of Law—Appellate Review. Whether jurisdiction exists is a question of law over which appellate courts exercise unlimited review. When the record indicates a lack of jurisdiction, an appellate court has the duty to question jurisdiction on its own initiative. When the record establishes the absence of jurisdiction, an appellate court has the duty to dismiss the appeal. City of Wichita v. Trotter ……………………….………… 339*

Standing Issue—Question of Law—Appellate Review. Standing is a component of subject matter jurisdiction. Whether a party has standing to raise an issue is a question of law over which we exercise unlimited review. A party without standing is essentially asking for an advisory opinion, which is beyond our jurisdiction to render. City of Wichita v. Trotter ………………………………... 339*

Subject Matter Jurisdiction—Issue May be Raised at Any Time. A party cannot waive an objection to subject matter jurisdiction and can raise it at any time, even for the first time on appeal. In re A.W. …………… 296*

MALICIOUS PROSECUTION:

Claim for Malicious Prosecution—Determination Whether Dismissal in Underlying Action was Favorable to Defendant. In the malicious prosecution context, a determination of whether a dismissal in the underlying action based upon res judicata or collateral estoppel was favorable to the defendant requires an examination of the outcome of the original case upon which the ruling was based. Budd v. Walker ………………...……….. 189

— Termination of Underlying Action for Defendant Not Required on the Merits. In Kansas, a claim for malicious prosecution does not require a termination of the underlying action in favor of the defendant to be based, at least in part, on the merits of the action. Budd v. Walker ….……….. 189

Malicious Prosecution Plaintiff Required to Establish that He or She Prevailed in Litigation as a Whole. For a malicious prosecution plaintiff to show the prior civil proceedings terminated in his or her favor, such plaintiff must establish that he or she prevailed in the litigation as a whole and not just in part. Budd v. Walker ……………………………………….. 189

Underlying Civil Proceeding Must Favor Defendant—Three Possible Results for Successful Determination. In an underlying civil proceeding, the case is successfully determined in favor of a defendant in three possible ways: (1) the favorable adjudication of the claim by a competent tribunal, (2) the withdrawal of the proceedings by the person bringing them, or (3) the dismissal of the proceedings because of that person's failure to prosecute them. Budd v. Walker ………………………………………..……….. 189

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MOTOR VEHICLES:

Insured's Right to Reject in Writing the Uninsured and Underinsured Motorist Coverages Required by Statute—Requirements. The named insured has the right to reject, in writing, the uninsured and underinsured motorist coverages required by subsections (a) and (b) which exceeds the Kansas minimum limit of $25,000. Any attempt to reject uninsured coverage in excess of the statutory minimum must be (1) in writing, as required by K.S.A. 40-284(c), and (2) the product of an affirmative, unequivocal act specifying the insured's rejection of excess coverage. McLean v. National Union Fire Ins. Co. …………...………………… 283*

K.S.A. 40-284 Requirement of Uninsured Motorist Coverage Equal to Liability Coverage of Policy. Kansas law requires that underinsured motorist coverage in an automobile policy must have coverage limits equal to the liability coverage of the policy. K.S.A. 40-284(b). McLean v. National Union Fire Ins. Co. ………………………...…… 283*

Liberal Construction of K.S.A. 40-284 to Provide Broad Protection to Insured. K.S.A. 40-284 is remedial. It should be liberally construed to provide broad protection to the insured against all damages resulting from bodily injuries sustained by the insured that are caused by an automobile accident where those damages are caused by the acts of an uninsured or underinsured motorist. The insurance policy containing the coverage is controlling only to the extent it does not conflict with or attempt to diminish or omit statutorily mandated coverage. McLean v. National Union Fire Ins. Co. ………………...…………… 283*

Traffic Stop Not Invalid if Pretext for Narcotics Search. A traffic stop is not rendered invalid by the fact that it is a mere pretext for a narcotics search. State v. Gilliland ………………………………………..……. 161

REAL PROPERTY:

Clause in Note Allowing Acceleration of Borrower's Loan Due Date— Two Requirements. In accordance with FGB Realty Advisors, Inc. v. Kel- ler, 22 Kan. App. 2d 853, 854, 923 P.2d 520 (1996), when a note contains a clause allowing a noteholder to accelerate the borrower's loan due date upon the borrower's default, the noteholder must take two steps to exercise the note's acceleration clause, which results in triggering K.S.A. 60-511(1)'s five-year statute of limitations: Under the first step, the noteholder must clearly and unequivocally express an intention to accelerate the loan. Under the second step, the noteholder must take some affirmative act toward en- forcing that intention to accelerate the loan. Wilmington Savings Fund Society v. Holverson ……………..………. 142

Conditional Threat Not Clear Expression of Noteholder's Intention to Accelerate Borrower's Loan under Facts of this Case. Under the facts of this case, where the noteholder sent a letter telling the borrowers that it would exercise the note's acceleration clause should the borrowers fail to cure their default by a certain future date, the noteholder did not accelerate

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the borrowers' loan due date by sending this letter. And in turn, the noteholder did not trigger K.S.A. 60-511(1)'s five-year statute of limitations. By telling the borrowers that it would invoke their note's acceleration clause should they fail to cure their default by a certain future date, the noteholder merely made a conditional threat to accelerate the borrowers' loan due date. By their very nature, a conditional threat cannot constitute a clear and unequivocal expression of a noteholder's intention to accelerate a borrowers' loan. Wilmington Savings Fund Society v. Holverson ……….………. 142

Noteholder's Exercise of Note's Acceleration Clause—First Step of Test. Under this first step of the test for exercising a note's acceleration clause and triggering K.S.A. 60-511(1)'s five-year statute of limitations, a noteholder's threat of some future loan acceleration does not constitute a clear and unequivocal expression of the noteholder's intention to accelerate the loan. Instead, to constitute a clear and unequivocal expression of an intention to accelerate the loan, the noteholder must state that it is exercising the note's acceleration clause and demanding payment of the loan in full. Wilmington Savings Fund Society v. Holverson …………..…………. 142

SEARCH AND SEIZURE:

Application of Good-Faith Exception to Exclusionary Rule—Good Faith Re- liance on Legal Authority. The good-faith exception to the exclusionary rule applies when police act in "good faith" reliance on legal authority, such as warrants, statutes, or caselaw. State v. Gilliland …………………………………..…. 161

Deterrent Effect of Suppression Must be Substantial—Mistakes in this Case Resulted from Negligence. The deterrent effect of suppression must be substantial and outweigh any harm to the justice system. Here, when a dispatcher's mistakes resulted from negligence rather than from systemic error or reckless disregard of constitutional requirements, the marginal benefits that might be gained from suppressing the evidence do not justify the substantial costs of exclusion. State v. Gilliland ………………..……. 161

Exclusion of Evidence from Search Incident to Arrest--Exception for Exclusionary Rule Application. If probable cause for an arrest is lacking, the court must exclude evidence found during a search incident to that arrest unless an exception to the exclusionary rule applies. State v. Gilliland …………………………………………..…………. 161

Fourth Amendment Violation—Suppression not Automatic Conse- quence. Suppression is not an automatic consequence of a Fourth Amend- ment violation. Instead, the question turns on the culpability of the police and the potential of exclusion to deter wrongful police conduct. State v. Gilliland …………………………………………………..…. 161

Good-Faith Exception to Exclusionary Rule—Application. The good- faith exception to the exclusionary rule ordinarily applies only when an officer relies in an objectively reasonable manner on a mistake made by someone else. State v. Gilliland ……………………………………………. 161

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Good-Faith Inquiry Whether Officer Knew Search was Illegal under all the Circumstances. The good-faith inquiry is confined to the objectively ascertainable question of whether a reasonably well-trained officer would have known that the search was illegal given all the circumstances. State v. Gilliland ………………………………………………..……. 161

Herring's Good-Faith Exception to Exclusionary Rule Not Applicable to Deliberate Error by Officers. Herring's good-faith exception does not apply when the error was deliberate, reckless, grossly negligent, or related to recurring or systemic negligence so that exclusion of the illegally seized evidence can deter future culpable police conduct. State v. Gilliland ………………………………………………..……. 161

Lack of Ownership—No Legitimate Expectation of Privacy. A person who lacks an ownership or possessory interest in the property searched lacks a legitimate expectation of privacy in that property. State v. Scheuerman…………………………………………………….. 48

Mistake of Fact Exception to Exclusionary Rule—Mistake by Officer Affecting Belief. The mistake of fact exception typically applies when an officer makes a mistake affecting his or her belief. State v. Gilliland ………………………………………………..……. 161

SEXUALLY VIOLENT PREDATOR ACT:

Court's Authority to Impose Sanctions unless Prohibited under Act. A district court has the authority to impose sanctions, even in Sexually Violent Predator Act cases, for the failure of a party to comply with court orders. But the scope of that authority is not unlimited. The court cannot order a sanction that is specifically prohibited under the Sexually Violent Predator Act. In re Care and Treatment of Saiz …………………………..…… 178

STATUTES:

Constitutionality—Standard of Review. A statute's constitutionality is a question of law subject to unlimited review. State v. Dixon …...………. 100

Construction—Legislative Intent—Appellate Review. An appellate court must first attempt to ascertain legislative intent through the statutory language enacted, giving common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court should not speculate about the legislative intent behind that clear language, and it should refrain from reading something into the statute that is not readily found in its words. State v. Terrell …………………………………………………….….…. 39

Construction of Statutes—Determination of Legislative Intent—Appel- late Review. When construing statutes to determine legislative intent, appellate courts must consider various provisions of an act in pari materia with a view of reconciling and bringing the provisions into workable har- mony if possible. Schmidt v. Trademark ……………….…………….. 206

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Equal Protection Challenge—Rational Basis Standard—Two-Part Test. For a statute to pass constitutional muster under the rational basis standard, it must meet a two-part test: (1) It must implicate legitimate goals, and (2) the means chosen by the Legislature must bear a rational relationship to those goals. State v. Dixon …………………………………….. 100

Interpretation of Statute—Court's Considerations. Only when the meaning of a statute's text is unclear do courts consider other interpretive tools, such as legislative history or canons of statutory construction. State v. Letterman ……..… 222

— K.S.A. 2020 Supp. 21-5513(a)(2) Is Not Ambiguous. K.S.A. 2020 Supp. 21-5513(a)(2)'s prohibition of "publicly exposing a sex organ" is not ambiguous. Consistent with the common meaning of "publicly" and with human experience, K.S.A. 2020 Supp. 21-5513(a)(2) prohibits exposing oneself in a manner observable by or in a place accessible to the public. State v. Letterman ……………………………………...……..……… 222

— Not Ambiguous if Common Word Not Defined. The absence of a definition for a common word within a statute does not necessarily render the statute ambiguous. State v. Letterman ……………………………...… 222

Interpretation of Statutes—Determination of Legislative Intent—Ap- pellate Review. When appellate courts interpret statutes, their primary aim is to give effect to the legislature's intent, articulated through the language the legislature has chosen. Courts therefore give common words their ordinary meanings. When a statute is plain and unambiguous, an appellate court does not speculate as to the legislative intent behind it and will not read into the statute something not readily found in it. State v. Letterman …...… 222

TORTS:

Claim of Malicious Prosecution—Attorney May Be Held Liable if Rep- resented Plaintiff in Prior Action. An individual accused of malicious prosecution need not be a party to the underlying action; an attorney who represented a plaintiff in a prior action may also be held liable in a subsequent malicious prosecution case. Budd v. Walker ……………..…… 189

— Elements of Proof. To successfully litigate a claim of malicious prosecution the plaintiff must prove: (1) the defendant initiated, continued, or procured civil procedures against the plaintiff; (2) the defendant in so doing acted without probable cause; (3) the defendant acted with malice, that is, he or she acted primarily for a purpose other than securing the proper adjudication of the claim upon which the proceedings are based; (4) the proceeding terminated in favor of the plaintiff; and (5) the plaintiff sustained damages. Budd v. Walker ………………………………………..…… 189

Malicious Prosecution an Independent Tort in Kansas—Elements Strictly Construed. Kansas law recognizes malicious prosecution as an independent tort. Generally, malicious prosecution claims are disfavored because they tend to dis- courage individuals from seeking redress in the courts. To guard against such claims, the elements of malicious prosecution are to be strictly construed to keep

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the cause of action from being wielded by wrongdoers as a threat to ward off legitimate suits. Budd v. Walker ………………………………………..…… 189

TRIAL:

Admissibility of Expert Testimony—Pretrial Hearing at Court's Discretion. The decision whether to hold a pretrial hearing to determine the admissibility of expert-opinion testimony is a question entrusted to the district court's discretion. The purpose of such a hearing is to determine whether a witness qualifies as an expert and whether the witness' testimony satisfies the requirements of K.S.A. 2020 Supp. 60-456(b). State v. Hatfield ……………………………..……….. 11

Admission of Evidence—Timely and Specific Objection to Preserve Is- sue for Appeal. A party must make a timely and specific objection to the admission of evidence at trial to preserve the issue for appeal. Without a specific objection, we have no particularized findings to review on appeal and thus cannot determine whether the district court erred. State v. Foster ………………………………………………………... 243*

Claim of Prosecutorial Error—Two-Step Analysis in Appellate Re- view. An appellate court applies a two-step analysis to claims of prosecutorial error: first determining if an error occurred and second determining the prejudice caused by the error. In determining error, the appellate court must determine whether the prosecutor's actions or statements fall outside the wide latitude afforded prosecutors to conduct the State's case and attempt to obtain a conviction in a manner that does not offend the defendant's constitutional right to a fair trial. If the appellate court finds error, then the appellate court must next determine whether the error prejudiced the defendant's due process rights to a fair trial using the constitutional harmless error inquiry. State v. Dixon …………………………………………….…… 100

Cumulative Error Test—Appellate Review of Totality of Circum- stances. The test for cumulative error is whether the totality of circumstances substantially prejudiced the defendant and denied the defendant a fair trial. State v. Dixon ………………………………………….…… 100

Expert Testimony—Admissibility. Expert testimony may be admissible when scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or determine a fact in issue. State v. Hatfield ………………………………………………...……….. 11

— Determination of Admissibility. The benchmark for determining whether expert testimony is admissible is not whether that testimony is scientific but whether it involves information outside the common realm of human experience—and obtained through reliable methods—that could meaningfully assist the jury in its deliberations. State v. Hatfield …...….. 11

— Qualification of Expert—Determination by Court. A person may testify as an expert if the person is qualified and if his or her opinions result from reliable methods or principles. A person is qualified when he or she has the requisite knowledge, skill, experience, training, or education to provide helpful insight on a

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matter that would benefit from expert opinion. Courts assess reliability by determining whether a person's testimony is based on sufficient facts or data and results from reliable principles and methods, as well as whether the witness has reliably applied the principles and methods to the facts of the case. State v. Hatfield ………………………………………………….…...…….. 11

— Reliability of Expert Testimony—Soundness of Methodology. The touchstone for reliability of expert testimony is not the correctness of the expert's conclusions but the soundness of his or her methodology. State v. Hatfield ……………………………...…………………...…….. 11

Judicial Notice after Trial Under K.S.A. 60-412(d)—Affords Parties Opportunity to Present Relevant Information. Under K.S.A. 60-412(d), a court taking judicial notice in proceedings after trial shall afford the parties reasonable opportunity to present information relevant to the propriety of taking such judicial notice and to the tenor of the matter to be noticed. State v. Rankin …………………………………………………..……… 60

Prosecutors Have Wide Latitude—Comments During Closing Arguments. Prosecutors have considerable latitude in crafting arguments. But a prosecutor's comments during closing argument must accurately reflect the evidence and accurately state the law. And those comments cannot be intended to inflame the pas- sions or prejudices of the jury or to divert the jury from its duty to decide the case based on the evidence and the controlling law. State v. Hatfield ………….….. 11

Prosecutor's Statements—Closing Argument. It is improper for a prosecutor to make statements during closing argument that attempt to shift this burden of proof to the defendant. But there is a difference between the prosecutor shifting the burden of proof—asserting the defense must prove a crime was not committed—and pointing out the absence of evidence to support the defense argument that there are holes in the State's case. State v. Hatfield ……………………………….....….. 11 . Use of Expert Testimony—Admissibility. Expert testimony is not objectionable merely because it embraces an issue to be decided by the trier of fact. Such evidence may be admissible if it will aid the jury in the interpretation of technical facts or when it will assist the jury in understanding the material in evidence. State v. Hatfield ……………………………………………………...……….. 11

TRUSTS:

Attorney Fees May Be Awarded to Any Party—Court's Discretion. In trust adjudication, a district court may award attorney fees to any party and has wide discretion to determine the amount and recipient of attorney fees. In re Bradley ……………………………………………..………. 66

Award of Attorney Fees and Expenses Reasonable if Litigation Benefi- cial to Trust Estate. In trust adjudication, an award of attorney fees and expenses is reasonable if the litigation proved beneficial to the trust estate. As a general rule, legal proceedings benefit a trust estate if questions are resolved so the estate can be properly administered. In re Bradley …………………………………………..………………. 66

60 KAN. APP. 2d SUBJECT INDEX XXIX

PAGE

Nonlawyer Cotrustee Cannot Represent Trust in Kansas Court—Un- authorized Practice of Law. A cotrustee who is not a lawyer generally cannot represent a trust in a Kansas court of law without engaging in the unauthorized practice of law. Schaake v. City of Lawrence ………….. 88

Removal of Trustee—Protection of Trust. A decision to remove a trustee is designed to protect the trust rather than punish the trustee. In re Bradley …………………………………………………..………. 66

Removal of Trustee for Breach of Trust under Statute—Discretion of District Court—Appellate Review. The decision to remove a trustee for a breach of the trust under K.S.A. 58a-706(b) lies within the sound discretion of the district court. When considering whether a district court abused its discretion, we do not look to see whether another decision would have also been reasonable. We merely ask whether a reasonable person could agree with the decision that the district court made. In re Bradley ………………………………………………..…………. 66

Statute Authority for Double Damages for Breach of Trust—Similar to Purpose of Punitive Damages. K.S.A. 58a-1002(a)(3) authorizes double damages for a breach of trust if the trustee embezzles or knowingly con- verts personal property of the trust "to the trustee's own use." This provision is similar in nature and purpose to punitive damages which are based on the premise that the defendant deserves punishment for malicious, vindictive, or willfully and wantonly invasive conduct. In re Bradley ………….…. 66

Statutory Duties of Trustee. Among the statutory duties of a trustee are the duties to take reasonable steps to take control of and protect the trust property; to keep adequate records for the administration of the trust; to keep the trust property separate from the trustee's own property; and to keep the beneficiaries reasonably informed about the administration of the trust and of material facts necessary for them to protect their interest in the trust. In re Bradley …………………………………………………..………. 66

Trustee Entitled to Reasonable Compensation—Court May Adjust Fees. When the terms of a trust do not specify the trustee's compensation, a trustee is entitled to compensation reasonable under the circumstances. K.S.A. 58a-708(a). Regardless of the terms of a trust, the district court has the power to adjust unreasonably high or low trustee fees. K.S.A. 58a- 105(b)(7). In re Bradley …………………………….…………………. 66

Trustee Is Proper Party in Claims Affecting Trust—Nonlawyer Trus- tee May Not Represent Trust in Court. Generally, our statute provides that the trustee, rather than a beneficiary of the trust, is the proper party to sue or defend actions and claims affecting the trust. But this statute does not permit a nonlawyer trustee to represent the trust in a court of law. Doing so would constitute the unauthorized practice of law. Schaake v. City of Lawrence …………………………………….…….. 88

XXX SUBJECT INDEX 60 KAN. APP. 2d

PAGE

Trustee May Sue Third Parties on Behalf of Trust—Beneficiaries Lack Standing. Because a trustee is the appropriate party to sue third parties on behalf of trust beneficiaries, beneficiaries generally lack standing to do so. Schaake v. City of Lawrence …………………………………….…….. 88

UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT:

Court May Decline Jurisdiction under Act.. K.S.A. 2020 Supp. 23- 37,208(a) directs a district court to decline jurisdiction when "a person seeking to invoke jurisdiction engaged in unjustifiable conduct." By its plain language, only the person seeking to invoke the jurisdiction of the court may engage in unjustifiable conduct so as to prohibit the court's assumption of jurisdiction under the UCCJEA. In re A.W. …………...… 296*

Court's Jurisdiction to Make Child Custody Determination Only in Home State—Definition of Home State. Unless otherwise provided by the UCCJEA, a court has the jurisdiction to make an initial child custody determination only if the state is the home state of the child on the date of the proceeding's commencement. "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. A period of temporary absence of any of the mentioned persons is part of the period. In re A.W. ……………………………………………… 296*

Courts Must Ensure Provisions are Satisfied Before Assuming Juris- diction in CINC Case. It is erroneous for a district court to assume subject matter jurisdiction over a child in need of care case with interstate connections without ensuring the UCCJEA's provisions are satisfied. In re A.W. …………………………………………………………….. 296*

Determination of Child's Home State—Objective Question. The determination of a child's home state is an objective question. The UCCJEA's language "state in which a child lived" does not suggest any concepts of legal residence, which is governed by an intention to stay or to return to a location and incorporates physical presence, not legal residence. In re A.W. ………………………...……… 296*

Emergency Jurisdiction under the Act—Court Enters Temporary Or- der for Protection of Child. Emergency jurisdiction under the UCCJEA allows a court to enter temporary orders to protect a child—but absent child abandonment, the situation must be an emergency. An emergency is a serious situation or occurrence that happens unexpectedly and demands immediate action. The fact that a child may be a child in need of care is an insufficient basis for emergency jurisdiction. In re A.W. ………..………… 296*

— Orders Become Final if Home State Declines Jurisdiction. Emergency jurisdiction under the UCCJEA indicates that any temporary emergency orders issued become final in the absence of any orders from a home state court. This suggests that temporary emergency jurisdiction can ripen into home state jurisdiction once the home state declines jurisdiction. In re A.W. ……………..……… 296*

60 KAN. APP. 2d SUBJECT INDEX XXXI

PAGE

Emergency Order by Court—Applicable Limits. If a previous child custody determination or proceeding exists, any emergency order must specify the period the court considers adequate to allow the person seeking an order to obtain such order from a court of a state having jurisdiction. If no child custody proceeding has been commenced in a court of a state having jurisdiction, an emergency child custody order remains in effect until an order is obtained from a court of a state having jurisdiction. If a proceeding is not commenced, then any emergency order entered becomes final. In re A.W. ………………………………………………………..…… 296*

Home State Makes Initial Custody Decision—Exclusive Jurisdiction Retained by State. Vital to the UCCJEA's method of keeping order between the states are two provisions. First, an initial custody decision must be made by the child's home state. Second, once that initial custody determination has been made, the state making it generally retains exclusive jurisdiction over later custody issues until an event listed in the UCCJEA occurs. In re A.W. ……………………………………………………..… 296*

Jurisdiction Declined by Court Only of Home State. For a home state to decline jurisdiction under the UCCJEA, the plain language of the statute requires a court, not a state agency, of the home state to decline jurisdiction. In re A.W. ……………………………………………………..……… 296*

Limits on Court's Subject Matter Jurisdiction. The Uniform Child-Cus- tody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 2020 Supp. 23- 37,101 et seq., limits a Kansas court's subject matter jurisdiction. The UCCJEA's purpose is to avoid jurisdictional disputes between courts of different states over child custody issues. It does so with rules that generally limit jurisdiction over child custody matters in any particular family to one state at a time. In re A.W. ……………………………………..……… 296*

Temporary Emergency Jurisdiction—Limits on District Courts' Au- thority. If an emergency as defined by the UCCJEA exists, a district court is limited by the UCCJEA to only exercising temporary emergency jurisdiction. Such emergency jurisdiction limits the district court to issuing temporary orders to protect the child until the state with home state jurisdiction can act. Such authority does not extend to issuing more permanent orders such as a child in need of care adjudication. In re A.W. ………….…… 296*

— Requirements. A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse. In re A.W. …………………………………………….…….. 296*

WORKERS COMPENSATION:

Fund Created by Legislature—Purpose. The Legislature created the Workers Compensation Fund so an injured worker of an uninsured employer can receive compensation from the Fund under K.S.A. 44-532a(a). Schmidt v. Trademark …………………………...……………...………… 206

XXXII SUBJECT INDEX 60 KAN. APP. 2d

PAGE

Fund Has Cause of Action against Employer for Recovery of Amounts Paid Injured Worker. The Workers Compensation Fund, under K.S.A. 44- 532a(b), has a cause of action against an employer for recovery of any amounts the Fund paid to an injured worker as workers compensation benefits. Schmidt v. Trademark …………………………………..……… 206

Liability of Principal Contractor if Subcontractor Fails to Provide Ben- efits. A principal contractor is secondarily liable if the subcontractor fails to provide workers compensation benefits to its employees. K.S.A. 44- 503(g). Schmidt v. Trademark ……………………………………..… 206

Liberal Construction of Act--Inclusion of Employers and Employees. The Workers Compensation Act, K.S.A. 44-501 et seq., is to be liberally construed to bring employers and employees within the provisions of the law, and the Act's provision should be applied impartially to both employers and employees in cases arising under it. The goal is inclusion of employers and employees, not their exclusion. Schmidt v. Trademark ……….… 206

Obligation of Principal Contractor to Pay Injured Employee of Sub- contractor. A principal contractor's obligation to pay workers compensation to an injured employee of its subcontractor has been a tenet of the Kan- sas Workers Compensation Act since its enactment. The purpose was to prevent employers from evading liability under the Act by subcontracting out work which they have undertaken to do. Schmidt v. Trademark .… 206

VOL. 60 COURT OF APPEALS OF KANSAS 235

Rowell v. State

___

No. 122,719

JAMES E. ROWELL, Appellant, v. STATE OF KANSAS, Appellee.

___

SYLLABUS BY THE COURT

1. HABEAS CORPUS—Direct Appeal has One-Year Time Limit from Date of Mandate—Exception for Manifest Injustice. A 60-1507 motion is subject to a one-year filing limitation from the date the mandate issued in a direct appeal. That date "may be extended by the court only to prevent a manifest injustice." K.S.A. 2020 Supp. 60-1507(f)(2). The court may consider a movant's reasons for failing to timely file a 60-1507 motion when determining whether the manifest injustice exception applies.

2. SAME—Challenge to Counsel's Representation in 60-1507—Manifest In- justice Exception Applicable if Claim Barred before It Arises. Barring a claim before it arises constitutes manifest injustice warranting an extension of the one-year limitation period in which to file a second motion under K.S.A. 60-1507 for the purpose of challenging counsel's representation in a prior 60-1507 proceeding.

3. SAME—One-Year Time Period for Filing 60-1507 Begins When Mandate Issued on First 60-1507. The one-year period for filing a 60-1507 motion to challenge counsel's representation in a prior 60-1507 proceeding begins when the mandate issued on that prior 60-1507 proceeding.

4. SAME—Prison Mailbox Rule—Determines Date of Filing of Motion for Prisoner. The prison mailbox rule deems a motion to be filed on the date a prisoner gives a document to authorities to mail, rather than on the date the clerk of court stamps it as filed.

5. SAME—Prison Mailbox Rule—Courts Consider Date on Certificate of Service by Prisoner. Under the prison mailbox rule, we consider the date on the prisoner's certificate of service to be the date the prisoner gives the document to the authorities to mail, when the State presents no evidence to the contrary.

Appeal from Geary District Court, BENJAMIN J. SEXTON, judge. Opinion filed June 4, 2021. Reversed and remanded with directions.

Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.

Michelle L. Brown, assistant county attorney, and Derek Schmidt, attorney general, for appellee.

236 COURT OF APPEALS OF KANSAS VOL. 60

Rowell v. State

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

GARDNER, J.: James Edward Rowell was convicted of felony offenses in 2003. When he later filed a K.S.A. 60-1507 motion, the district court appointed Rowell counsel and held a preliminary hearing. At that hearing, Rowell's counsel conceded that the motion was untimely and did not argue that any exception applied to render it timely. The district court dismissed Rowell's motion as untimely, and we affirmed that decision on appeal. About a year later, Rowell filed a second K.S.A. 60-1507 motion challenging the effectiveness of his K.S.A. 60-1507 counsel. The district court summarily dismissed it as untimely. Rowell now appeals, arguing his second 60- 1507 motion was timely since he filed it within one year from the date of the mandate on his first K.S.A. 60-1507 motion. Agreeing that Row- ell's motion was timely, we reverse and remand for further proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Rowell pleaded no contest to attempted first-degree murder, aggravated robbery, and aggravated kidnapping. Rowell was 17 years old when he committed these crimes, but he was certified for adult prosecution under K.S.A. 2003 Supp. 38-1636. The district court sentenced Rowell to 310 months' imprisonment—a presumptive sentence. Rowell filed a direct appeal, but we dismissed it based on a lack of jurisdiction over Rowell's presumptive prison sentence. See State v. Rowell, No. 92,560, 2005 WL 824101, at *1 (Kan. App. 2005) (unpublished opinion) (Rowell I). We issued the mandate on May 16, 2005. In January 2011, Rowell filed a pro se motion to correct an illegal sentence, arguing the district court had lacked jurisdiction to sentence him because it had improperly certified him as an adult. The district court summarily denied the motion. We affirmed that denial, finding that substantial competent evidence supported the certification decision and that the district court properly considered the necessary statutory factors. State v. Rowell, No. 106,713, 2012 WL 4794652, at *3 (Kan. App. 2012) (unpublished opinion) (Rowell II); see K.S.A. 2003 Supp. 38-1636(e).

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Rowell v. State

In July 2014, Rowell filed his first K.S.A. 60-1507 motion, arguing he had received ineffective assistance of counsel at trial. The district court appointed him counsel—Allison English—and conducted a status hearing. Rowell was not present at the hearing. English conceded that Rowell's 60-1507 motion was untimely:

"Your Honor, I don't believe that he was trying to act frivolous in any way, because the opinion is talking about the certification. And now his claims for the 1507 is based on . . . what he feels was ineffective in the certification process. But I still do feel that it's just out of time."

The district court summarily dismissed Rowell's 60-1507 motion as untimely. We affirmed, finding Rowell filed his motion nine years after the mandate issued in his direct appeal, thus exceeding the one- year time limit in K.S.A. 60-1507(f)(1). Rowell v. State, No. 115,711, 2017 WL 4216152, at *6 (Kan. App. 2017) (unpublished opinion) (Rowell III). We also concluded that Rowell "did not affirmatively assert manifest injustice, and all of his claims were without merit." 2017 WL 4216152, at *6. We issued that mandate on September 13, 2018. On October 17, 2019, the court filed Rowell's second K.S.A. 60- 1507 motion—the motion he now appeals. This second 60-1507 motion asserts that his previous counsel, English, was ineffective for con- ceding the untimeliness of his first 60-1507 motion and abandoning his legal claims. Although Rowell did not specifically address timeliness, he listed the date of this court's decision in Rowell III as the date of his direct appeal, thus implying he had one year from the mandate in Row- ell III to file the second 60-1507 motion. The district court summarily dismissed Rowell's second 60-1507 motion as untimely. It considered both possible mandate dates—the 2005 mandate from Rowell's direct appeal and the 2018 mandate from Rowell's first 60-1507 motion—and found that Rowell's motion was untimely under either:

"The current 60-1507 is filed almost 14 years after the Mandate issued in the original appeal from the State of Kansas vs. James E. Rowell, 2002-CR-736. The Court finds therefore, that the 60-1507 is filed beyond the one (1) year time limit. That the Plaintiff makes the argument that the time limit should actually begin on September 20, 2018 in regard to the appeal of Geary County Case Number 2014-CV-175. The Court dismisses this argument and would point out that the current appeal filed on October 17, 2019, filed beyond the one (1) year time limit of the Mandate issued on September 20, 2018. The Court finds once again that there is no assertion of any manifest injustice or any indicia that the Plaintiff, James E. Rowell, has a colorable claim of actual innocence."

238 COURT OF APPEALS OF KANSAS VOL. 60

Rowell v. State

Rowell timely appeals the court's dismissal of his second 60-1507 as untimely.

ANALYSIS

Rowell tacitly concedes that his second 60-1507 motion was filed years after this court issued its 2005 mandate in his direct appeal. See K.S.A. 2020 Supp. 60-1507(f)(1)(A). Yet he argues that his second motion, which attacked the effectiveness of counsel in his first 60-1507 motion, was timely because it was filed within one year after the 2018 mandate issued in his first 60-1507 motion. We agree.

STANDARD OF REVIEW

When the trial court summarily dismisses a K.S.A. 60-1507 motion, an appellate court conducts a de novo review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. Beauclair v. State, 308 Kan. 284, 293, 419 P.3d 1180 (2018). "'A movant has the burden to prove his or her K.S.A. 60-1507 motion warrants an evidentiary hearing; the movant must make more than conclusory contentions and must state an evidentiary basis in support of the claims or an evidentiary basis must appear in the record.'" Sola- Morales v. State, 300 Kan. 875, 881, 335 P.3d 1162 (2014).

We Start the Clock from the Mandate in the First 60-1507 Motion.

K.S.A. 2020 Supp. 60-1507(f)(1), as applicable here, provides:

"(1) Any action under this section must be brought within one year of: (A) The final order of the last appellate court in this state to exercise jurisdiction on a direct appeal or the termination of such appellate jurisdiction."

We typically use the date the appellate mandate issues as the date that jurisdiction terminates on a direct appeal. The State contends we should do so here. Under that analysis, because the mandate on Rowell's direct appeal issued in 2005, Rowell's second 60-1507 motion, filed in 2019, would be untimely. But Rowell maintains that we should start the clock for his second 60-1507 motion within one year of the mandate issued in his first 60-1507 case, making it timely. We agree.

VOL. 60 COURT OF APPEALS OF KANSAS 239

Rowell v. State

Our cases have not been consistent in addressing this issue when a second 60-1507 alleges ineffective assistance of prior 60- 1507 counsel. In Wilson v. State, No. 112,558, 2015 WL 8590325 (Kan. App. 2015) (unpublished opinion), the panel assumed that the denial of the first K.S.A. 60-1507 motion started the one-year clock:

"Wilson had a right to effective counsel in the evidentiary hearing held on his previous habeas claim. See Robertson v. State, 288 Kan. 217, 228, 201 P.3d 691 (2009). Regarding timeliness, for the purposes of this decision, we assume that a defendant may bring a claim under K.S.A. 60-1507 regarding the effectiveness of the defendant's attorney in a habeas evidentiary hearing within 1 year of the conclusion of the initial habeas case." 2015 WL 8590325, at *2.

The Wilson panel thus assumed that a 60-1507 claim for ineffectiveness of counsel on a prior habeas motion could be timely filed within one year from the mandate on the first 60-1507. But a different panel of our court rejected that reading of the statute. In Overton v. State, No. 111,181, 2015 WL 1636732, at *2-3 (Kan. App. 2015) (unpublished opinion), the panel found that the plain language of "direct appeal" in K.S.A. 60-1507(f) refers to the appeal from the judgment of conviction, not a collateral attack as in a 60-1507 proceeding. But under that reasoning, a prisoner who had ineffective assistance of counsel in a 60-1507 motion would likely be time-barred from bringing it, as a collateral attack follows a direct appeal. The Overton panel also reasoned that using the mandate from the first 60-1507 would encourage repetitive motions, conflicting with K.S.A. 60-1507(c), which prevents a district court from having to hear successive habeas corpus motions. 2015 WL 1636732, at *3. But that subsection states: "The sentencing court shall not be required to entertain a second or successive motion for similar relief on behalf of the same prisoner." K.S.A. 2020 Supp. 60-1507(c). And we have considered a claim of ineffective assistance of counsel based on and arising after a movant filed his original K.S.A. 60-1507 motion not successive, applying Kansas Supreme Court Rule 183(d) (2021 Kan. S. Ct. R. 239). Logan v. State, No. 122,215, 2020 WL 6108529, at *4 (Kan. App. 2020) (unpublished opinion). Rowell's second 60- 1507 motion raised a different ground for relief—that his first 60-

240 COURT OF APPEALS OF KANSAS VOL. 60

Rowell v. State

1507 counsel was ineffective—and thus would not be successive under Logan's analysis. A third rationale of our court is to apply the manifest injustice exception to the one-year rule. The Logan panel found that "a timely collateral attack alleging ineffective assistance of habeas corpus counsel might constitute manifest injustice and serve as a basis for tolling the one-year time limitation for filing a habeas corpus motion." 2020 WL 6108529, at *3. The 60-1507 statute provides that the one-year filing limit from the date the mandate issued in a direct appeal "may be extended by the court only to prevent a manifest injustice." K.S.A. 2020 Supp. 60-1507(f)(2). The factors a court may consider when determining whether the manifest injustice exception applies are "(1) a movant's reasons for the failure to timely file the motion . . . or (2) a movant's claim of actual innocence." White v. State, 308 Kan. 491, 496, 421 P.3d 718 (2018). An inquiry into the manifest injustice of barring a second collateral proceeding necessarily involves a consideration of the time frame in which the second collateral proceeding is brought. See State v. Cox, No. 104,292, 2011 WL 6382755, at *3-4 (Kan. App. 2011) (unpublished opinion) (finding no manifest injustice to excuse time limit given unexplained, three-year delay in seeking habeas review of attorney's error in prior habeas proceeding); Pouncil v. State, No. 98,276, 2008 WL 2251221, at *6-7 (Kan. App. 2008) (unpublished opinion) (finding no manifest injustice to excuse time limit given unexplained delay of over five years in seeking habeas review of attorney's error in prior habeas proceeding). Rowell's reason for not filing his second 60-1507 motion within one year after the mandate in his direct appeal is obvious— his claim had not yet arisen. Any attempt by Rowell to challenge the representation of his counsel in a collateral proceeding would necessarily have occurred after the limitation period of K.S.A. 60- 1507(f)(1) had run, since his first 60-1507 proceeding did not ter- minate until its mandate was issued in 2018, long after the 2005 mandate had issued in his direct appeal. "Barring a claim before it arose clearly would constitute a manifest injustice warranting an extension of the 1-year limitation period in which to file a second

VOL. 60 COURT OF APPEALS OF KANSAS 241

Rowell v. State motion under K.S.A. 60-1507 for the purpose of challenging appellate representation in the preceding 60-1507 proceeding." Pouncil, 2008 WL 2251221, at *5. We adopt that approach here and find that Rowell's one-year period for filing a second 60-1507 to challenge his counsel's representation in his first 60-1507 proceeding began when the mandate issued on that first 60-1507 motion. To do otherwise would deprive a movant of any way to raise a claim of ineffectiveness of 60-1507 counsel. Rowell's Motion Was Filed Within One Year of the Mandate, per the Mailbox Rule. The district court found that the one-year deadline for 60-1507 motions runs from the mandate in the direct appeal, as the statute says. But it also held that even if the deadline starts from the later mandate denying Rowell's first 60-1507, Rowell's motion was untimely. Rowell, like the district court, incorrectly states that the mandate from his first 60-1507 motion issued on September 20, 2018. But the record shows that this court issued that mandate on Sep- tember 13, 2018, so we use that date in addressing Rowell's claims. The district court held that "the current appeal [was] filed on October 17, 2019, filed beyond the one (1) year time limit of the Mandate issued on September 20, 2018." The district court thus considered the filing date of Rowell's second 60-1507 motion to be the date that the motion was file-stamped at the district court. And that is generally the date we use to determine when a document is filed. But Rowell claims this was error because the district court should have used the prison mailbox rule. We agree. Rowell, who was a prisoner in 2019, argues that the prison mailbox rule applies and that his second 60-1507 motion was timely because its certificate of service date of August 5, 2019, is deemed to be the filing date. He does not assert manifest injustice here. The prison mailbox rule deems a motion filed on the date a prisoner gives a document to authorities to mail, rather than on the date the clerk of court stamps it as filed.

"This rule deems a prisoner's pro se documents 'filed' when he or she submits them to prison authorities for mailing. See Wilson v. State, 40 Kan. App. 2d 170, 175, 192 P.3d 1121 (2008) (applying prison mailbox rule to 60-1507 motion); see also Houston v. Lack, 487 U.S. 266, 274-76, 108 S. Ct. 2379, 101 L. Ed. 2d

242 COURT OF APPEALS OF KANSAS VOL. 60

Rowell v. State

245 (1988) (applying prison mailbox rule to habeas petition under 28 U.S.C. § 2254 [2012]). "We agree. Under this rule, we consider Wahl's 60-1507 motion to be filed as of December 20, 2011, especially when the State has presented no evidence to controvert the validity of this date contained in Wahl's certificate of service. Based on this filing date, Wahl's motion was timely under K.S.A. 60-1507(f)(1). Accordingly, the district court erred by summarily denying Wahl's motion as untimely." Wahl v. State, 301 Kan. 610, 615, 344 P.3d 385 (2015).

See Logan, 2020 WL 6108529, at *3 (using the date the prisoner signed the motion because it was unclear when the prisoner delivered the motion to prison authorities). The State does not address the mailbox rule or the holding in Wahl. Rather, it argues only that the one-year time limit runs from the date of the mandate on direct appeal. The State thus presents no evidence to controvert the validity of the date on Rowell's certificate of service. Following Wahl, we apply the mailbox rule here. Under the prison mailbox rule, we consider the date on Row- ell's certificate of service—August 5, 2019—to be the date his 60- 1507 motion was filed. The mandate from his first 60-1507 issued September 13, 2018; thus, Rowell's second 60-1507, deemed to be filed less than one year later, was timely. We thus find Rowell's second 60-1507 motion to be timely and remand it for further proceedings.

Reversed and remanded for further proceedings.

VOL. 60 COURT OF APPEALS OF KANSAS 243

State v. Foster

___

No. 122,048

STATE OF KANSAS, Appellee, v. TONY LEE FOSTER, Appellant.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Speedy Trial Docket Statute—Crowded Docket Excep- tion. The crowded docket exception in K.S.A. 2020 Supp. 22-3402(e)(4) encompasses both the reason the court must change a trial date as well as the reason it cannot be rescheduled within the speedy trial deadline.

2. TRIAL—Admission of Evidence—Timely and Specific Objection to Pre- serve Issue for Appeal. A party must make a timely and specific objection to the admission of evidence at trial to preserve the issue for appeal. Without a specific objection, we have no particularized findings to review on appeal and thus cannot determine whether the district court erred.

3. APPELLATE PROCEDURE—Constitutional Challenge First Time on Ap- peal—Rule 6.02 Requirements. Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) requires a party to explain why this court should consider a constitutional challenge for the first time on appeal. A party must offer more than a conclusory, unsupported statement to satisfy its burden in this regard.

4. APPEAL AND ERROR—Review of Unpreserved Claim—Appellate Re- view. 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, an appellate court has no obligation to do so.

Appeal from Shawnee District Court; MARK S. BRAUN, judge. Opinion filed June 11, 2021. Affirmed.

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

Michael J. Duenes, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before ARNOLD-BURGER, C.J., POWELL and CLINE, JJ.

CLINE, J.: A jury convicted Tony Lee Foster of reckless murder in the second degree and criminal possession of a weapon. He raises three claims of reversible error in his direct appeal. First, he contends that the district court misused the "crowded docket" provision in Kansas' speedy trial statute to continue his trial. Second, he believes the district court erroneously admitted his interrogation video at trial. Finally, he raises a constitutional challenge to

244 COURT OF APPEALS OF KANSAS VOL. 60

State v. Foster the statute underlying one of his convictions. We find the crowded docket provision encompasses situations in which the court continues a trial for reasons unrelated to a crowded docket but cannot reschedule it within the speedy trial deadline because of the court's crowded docket. We also find Foster has failed to preserve his remaining arguments for appellate review. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On July 9, 2018, Shannon Allison was living in a garage at her mother's house in north Topeka. The house was unoccupied at the time. One of Allison's friends, David Payne, stopped by several times that day, looking for her ex-boyfriend, Joshua Anno. A few days earlier, Anno and Payne had discussed meeting up at Allison's so Anno could purchase a moped motor from Payne. During one of Payne's visits that day, he spent several hours re- moving a window air conditioner unit from the house so Allison could use it in the garage. Payne felt the garage where Allison was staying was too hot. After he removed the unit, Payne placed it on a chair in the garage. Around midafternoon, Anno came by the house to mow the grass and meet up with Payne. When Anno arrived, no one was home. Allison returned just as he finished mowing. They both went inside the garage, at which point Anno fell asleep in a chair by the air conditioner. When Anno awoke, Foster was there, talking with Allison. Foster and Allison were in a dating relationship at the time, and they share children. Soon after, Anno called 911 to report a shooting at the property. He denied knowing who the shooter was. Payne was the victim, and he died later that evening. The police spoke to both Allison and Anno at the scene. Foster was not present. They told police they were in Allison's garage when they heard a pop outside. When they came out, they saw Payne on the ground. Both Allison and Anno said they did not see who shot Payne. The police took Allison and Anno to the law enforcement center for further questioning. During transport, Anno told police he thought Foster may have shot Payne. When interviewed at the law enforcement center, Anno said he, Allison, and Foster were sitting in the garage when Payne approached outside. Anno called out to

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State v. Foster ask who it was, and Payne identified himself as "David." Foster asked if he was the same person who took an air conditioner unit out of the house. Anno then described Foster pulling out a revolver and firing one shot at Payne. Anno clarified he did not see the shooting because he was looking for his phone, but he saw Foster with a gun and heard him fire it. Anno ran outside and found Payne nonresponsive. Anno explained that he did not identify Foster as the shooter to the 911 operator because Foster was standing next to him when he called. In her interview at the law enforcement center, Allison said she and Anno were in her garage when they heard a bang outside. She first said she did not know who shot Payne. After the detective said he knew Foster was in the garage, Allison admitted Foster was there and had arrived shortly before the shooting. At some point, Detective Jesse Sherer, who also interviewed Anno, entered Allison's interview. Detective Sherer asked Allison why Foster shot Payne. Allison said it was an accident, claiming, "'He did not mean to.'" She said before the shooting, Foster asked whether Payne was the person who had caused problems over the air conditioner. Allison also admitted she grabbed the gun from Foster's hands before setting it on a bed. Later that day, the police found Foster and arrested him. De- tective Sherer interviewed Foster. At first, Foster denied knowing Payne or being present. When Detective Sherer told Foster witnesses placed him at the scene, Foster admitted he was with Alli- son in her garage when they heard a gunshot outside. He denied shooting Payne or possessing a gun. The State charged Foster with intentional murder in the second degree or, in the alternative, reckless murder in the second degree. The State also charged Foster with one count of criminal possession of a firearm. The parties appeared for trial on March 11, 2019. Upon their arrival, the district court informed them it had mistakenly failed to summon jurors for the week. Unfortunately, there were no available jury trial settings before Foster's speedy trial deadline of April 5, 2019. Relying on the crowded docket provision in K.S.A. 2020 Supp. 22-3402(e)(4), the district court continued the trial to April

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8, 2019, over Foster's objection. When Foster's speedy trial deadline arrived, Foster moved to dismiss on speedy trial grounds. The district court denied the motion. Before trial, Foster moved to preclude Detective Sherer's videotaped interview of Foster, which he characterized as "continu- ally comment[ing] on the credibility of suspects and witnesses." The district court ordered the State to redact certain portions of the video but denied Foster's generic objection to the entire video. Both Allison and Anno testified at trial that Foster shot Payne. Jeffrey Parsons, an inmate at the Shawnee County Jail, also testified for the State. Parsons testified that, the day after the shooting, Foster approached him and told Parsons that he "'caught a bad motherfucker.'" Parsons explained that in jail this phrase means he "caught a bad case." Parsons testified Foster also told him that he shot someone and threw the gun by the house. The jury found Foster guilty of reckless murder in the second degree and criminal possession of a weapon. On appeal, Foster claims the crowded docket exception does not apply to his trial continuance, because the court continued the trial for lack of jurors, not a crowded docket. He also challenges the admission of his interrogation video, claiming it constituted impermissible comment on his credibility. Last, he raises a constitutional challenge to the statute underlying one of his convictions. We do not find Foster's arguments persuasive.

ANALYSIS

The district court properly used the crowded docket exception in the speedy trial statute.

Kansas law mandates that a defendant held in jail on criminal charges "be brought to trial within 150 days after such person's arraignment on the charge." K.S.A. 2020 Supp. 22-3402(a). Oth- erwise, the defendant "shall be entitled to be discharged from further liability to be tried for the crime charged." K.S.A. 2020 Supp. 22-3402(a). Kansas' speedy trial statute includes certain exceptions which toll this deadline. Here, the district court relied on the one commonly known as the "crowded docket" exception. This exception grants the district court a one-time opportunity to extend the time for trial when, "because of other cases pending for trial,

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State v. Foster the court does not have sufficient time to commence the trial of the case within the time fixed for trial." K.S.A. 2020 Supp. 22- 3402(e)(4). A court may not delay a trial longer than 30 days under this provision. K.S.A. 2020 Supp. 22-3402(e)(4). Foster's trial was originally set within his speedy trial deadline. Unfortunately, trial could not proceed as scheduled because the court failed to summon jurors. The court also could not commence Foster's trial before his speedy trial deadline of April 5, 2019, because of other matters already scheduled. Relying on the crowded docket exception, the district court extended the time for Foster's trial to April 8, 2019. This continuance was less than 30 days. Foster claims the district court violated his statutory right to a speedy trial when it continued his trial beyond April 5, 2019. He argues the crowded docket exception applies only when the court's crowded docket is the reason for the continuance. We exercise unlimited review over a district court's legal rulings regarding violations of a defendant's statutory right to a speedy trial, as well as interpretation of statutes. State v. Vaughn, 288 Kan. 140, 143, 200 P.3d 446 (2009). Sections (a) through (d) of K.S.A. 2020 Supp. 22-3402 establish specific deadlines for the court to bring a defendant to trial. Section (e) of K.S.A. 2020 Supp. 22-3402 balances those deadlines against the practical realities of litigation by recognizing four situations in which the court may extend those deadlines for limited periods of time. One of the situations the Legislature antici- pated is a district court's crowded docket. Section (e)(4) tolls the speedy trial deadline for a short time (up to 30 days) when a court's docket cannot accommodate another trial setting within that deadline. We decline to read this provision as narrowly as Foster advo- cates. The language of K.S.A. 2020 Supp. 22-3402(e)(4) is unambiguous. We cannot read words into the statute or delete them from it. In re Fairfield, 27 Kan. App. 2d 497, 499, 5 P.3d 539 (2000). The Legislature did not limit application of this provision to only those situations in which a court must continue a trial because of a crowded docket. If that were its intention, it might have said: "[B]ecause of other cases pending for trial, the court must

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State v. Foster continue the trial" or "the trial must be continued." Instead, it said: "[B]ecause of other cases pending for trial, the court does not have sufficient time to commence the trial of the case within the [speedy trial deadline]." K.S.A. 2020 Supp. 22-3402(e)(4). The statutory language is broad enough to encompass both the reason the court must change a trial date as well as the reason the court cannot reschedule it within the speedy trial deadline. The speedy trial statute, like any other statute, must be given a reasonable construction which will carry out the legislative purpose without working an injustice to either the defendant or the State. State v. Coburn, 220 Kan. 750, 752, 556 P.2d 382 (1976). Foster's interpretation of the crowded docket exception would require the district court to overburden its already crowded docket by setting a trial sometime before the speedy trial deadline—one which the court already knows would not likely proceed—just so the court could continue the trial once more, to the date it originally had in mind when the situation first arose. Our Supreme Court pointed out the absurdity of this exercise in Coburn, 220 Kan. at 752-53. We see no need to unnecessarily enlarge the business of the court and overburden the parties, counsel, and witnesses (who must still be prepared to proceed on the phony trial date). As in Coburn, we believe the crowded docket exception allows the district court to directly address its crowded docket when rescheduling the trial, rather than requiring it to indirectly do so. 220 Kan. at 753. We do not believe our interpretation of the crowded docket exception will be the harbinger of abuse Foster claims. While it provides district courts some flexibility to accommodate their demanding dockets, it also protects a defendant's important speedy trial right by limiting the duration of this tolling provision to 30 days and by only allowing a court to use it once. Further, whatever the (presumably legitimate) reason for a trial continuance, the record must still establish the court cannot accommodate a new trial date within the speedy trial deadline before the provision can apply. Cf. State v. Queen, 313 Kan. 12, 22, 482 P.3d 1117 (2021). Another panel of this court has interpreted the crowded docket exception the same way we do, under almost identical circumstances. In State v. Hadrin, No. 112,736, 2016 WL 197775 (Kan.

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App. 2016) (unpublished opinion), the district court had to continue Jesse Hadrin's trial because the court had not summoned enough jurors. Hadrin's initial trial date was May 12, 2014. The district court was unable to reschedule Hadrin's trial before his May 19 speedy trial deadline because it had another trial scheduled. The court rescheduled the trial to May 27, 2014, citing the crowded docket exception to the speedy trial rule. On appeal, Ha- drin made the same argument as Foster—the reason for the continuance was the unavailability of jurors, not a crowded docket, so the exception did not apply. This court rejected Hadrin's argument, recognizing K.S.A. 2020 Supp. 22-3402(e)(4) permitted the court to set the trial outside the speedy trial deadline due to its scheduling conflict after the discovery of the juror shortage. 2016 WL 197775, at *6. We also addressed a similar issue in State v. Mansaw, 32 Kan. App. 2d 1011, 93 P.3d 737 (2004), aff'd and adopted 279 Kan. 309, 109 P.3d 1211 (2005). In Mansaw, the court originally scheduled the defendant's trial for December 2, 2002. His speedy trial deadline was December 18, 2002. At a status conference on No- vember 26, 2002, Mansaw's counsel announced it had a conflict with the trial date. Defense counsel was available during the weeks of December 9 and December 16, but the court's docket was already full during that time. The court rescheduled the trial to January 6, 2003, 109 days after Mansaw's arraignment. While defense counsel objected to the extension, this court found the continuance fell within the crowded docket exception, since the district court lacked sufficient time to commence Mansaw's trial before the initial deadline because of other cases pending for trial. 32 Kan. App. 2d at 1020-21. Our Supreme Court adopted and affirmed this court's determination that Mansaw's speedy trial rights were not violated, showing its agreement with our interpretation of the crowded docket exception. 279 Kan. 309. Our Supreme Court recently noted in Queen, 313 Kan. at 20, "the district court must extend or continue the time" for trial, for the crowded docket exception to apply. Just like in Mansaw and Hadrin, the district court did not continue Foster's trial because of a crowded docket, but the court extended the time for trial because of it. Thus, the crowded docket exception applies. The district

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State v. Foster court did not err in relying on it when rescheduling Foster's trial date.

The court properly admitted Foster's redacted interrogation video.

Before trial, Foster moved to preclude the State from intro- ducing "any and all testimony, reports, video or audio recording that tend[ed] to comment, bolster or disparage the character or credibility of witnesses or the defendant." He specifically referenced Detective Sherer's interview of Foster, which he characterized as inappropriate comment on Foster's credibility and inadmissible under State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005). He asked the State to redact any statements commenting on the credibility of the witnesses or Foster from any videos it intended to introduce. In response, the State prepared a redacted video of Foster's interview. While Foster conceded the State's re- dactions eliminated all direct comments on witness credibility, he still claimed the "totality of [Detective Sherer's] comments [was] inappropriate opinion of the credibility of witnesses." At a hearing on Foster's motion, the State's attorney mentioned he contacted Foster's attorney and asked which specific statements in the video Foster still found objectionable. Foster's attorney said he did not know if it was possible to redact the video because "the whole tenor of Detective Sherer throughout that interview [was] sarcastic" and the detective "implicitly indicated that he did not believe anything that Mr. Foster [was] saying." The district court noted the difficulty created by Foster's generic objection. The redacted version of Foster's interrogation video is 17 minutes and 41 seconds long. The district court said it would help to know the specific statements about which Foster had an objection. After the hearing, Foster's counsel e-mailed objections to two specific portions of the video. When addressing Foster's general objection to the video in its written opinion, the district court said the "area of the general objections to all of the detective's statements is difficult for the court to review and examine." While the court did review the video multiple times and tried to identify Foster's areas of concern, the court "[did] not believe it [was] required to go through each and every statement without more specific objections and support from the Defendant." Ultimately, the court ordered the State to redact the

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State v. Foster two comments in the video to which Foster specifically objected as well as one other comment. At trial, Foster renewed his general objection to the entire interview, stating it was an improper and sarcastic commentary on Foster's credibility. The district court overruled the objection and admitted the video. On appeal, Foster offers new objections to specific portions of the video, while also claiming "the improper attacks on Mr. Foster's credibility so permeated the video, there was no amount of redaction that could save it." The insurmountable problem Fos- ter faces on appeal is he did not preserve objections to any specific comments in the video which were unredacted. While both the State and the district court requested specifics from Foster as to his objections to the video, he only identified two statements. Those statements were redacted before the State introduced the video at trial. And when the State introduced the video at trial, Foster only repeated his general objection to the entire video. We cannot consider any of the objections to specific statements in the video which Foster now raises on appeal because he failed to provide the district court the opportunity to address them. A party must make a timely and specific objection to the admission of evidence at trial to preserve the issue for appeal. State v. Richmond, 289 Kan. 419, 428, 212 P.3d 165 (2009). Without a specific objection, we have no particularized findings to review on appeal and thus cannot determine whether the district court erred. Similarly, a party may not object at trial to the admission of evidence on one ground and then on appeal argue a different ground. 289 Kan. at 428-29. Allowing a party to raise evidentiary objections for the first time on appeal conflicts with the appellate court's function, which is that of review rather than trial de novo. State v. Freeman, 195 Kan. 561, 564, 408 P.2d 612 (1965). While we cannot consider Foster's new challenges to specific portions of the video, we can consider his objection to admission of the video as a whole. Foster claims Detective Sherer impermissibly commented on Foster's credibility by "(1) making express statements that Mr. Foster was not telling the truth; (2) employing a sarcastic and argumentative tone throughout the interrogation;

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State v. Foster and (3) using body language that demonstrated his disgust with Mr. Foster's version of events." Since Foster has waived his first argument (regarding specific statements), we can only consider whether Detective Sherer's tone and body language amounted to impermissible comment on the credibility of another witness. A district court "has no discretion on whether to allow a witness to express an opinion on the credibility of another witness." Elnicki, 279 Kan. at 53-54. We review this issue de novo. 279 Kan. at 51. First, Foster's reliance on Elnicki is misplaced. Elnicki involved objections to specific statements, rather than the general- ized objection Foster raised below. Next, Elnicki does not address sarcasm or body language; Elnicki involved repeated accusations that the defendant was a liar. 279 Kan. at 57 ("The jury heard a law enforcement figure repeatedly tell Elnicki that he was a liar; that Elnicki was 'bullshitting' him and 'weaving a web of lies.' The jury also heard the same law enforcement figure suggesting he could tell Elnicki was lying because Elnicki's eyes shifted."). The only other case Foster cites in support of his proposition that "overly sarcastic and argumentative questioning is not con- doned" involves prosecutorial misconduct. See State v. Edgar, 281 Kan. 47, 68, 127 P.3d 1016 (2006). Prosecutorial error cases involving improper comments on witness credibility are informa- tive, since prosecutors are also prohibited from directly commenting on witness credibility. State v. Hirsh, 310 Kan. 321, 342, 446 P.3d 472 (2019) ("We have repeatedly said that a prosecutor telling a jury in opening statement or closing argument that a witness told the truth is error."); Elnicki, 279 Kan. at 63-64 (holding prosecutor erred by repeatedly referring to defendant's story as a "'fab- rication'" and a "'yarn'"). That said, we do not find Detective Sherer's tone and body language crossed the line. While it is true the Supreme Court did not condone the prosecutor's statements in Edgar, it also found no misconduct in the prosecutor's "overly sarcastic and argumentative questioning" because the prosecutor's questions were relevant and limited to the evidence presented at trial. 281 Kan. at 68. "Although sarcasm may be used as an occasional rhetorical device, it cannot be used in such a way that it distracts the jury from its charge, demeans the adversarial trial process, or becomes unprofessional to the

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State v. Foster point of jeopardizing a verdict." State v. Robinson, 306 Kan. 431, 441, 394 P.3d 868 (2017). In State v. Longoria, 301 Kan. 489, 526, 343 P.3d 1128 (2015), the Kansas Supreme Court held that a prosecutor "came dangerously close to crossing the line" in using sarcasm where he suggested that rather than be killed by the defendant, a UFO or a mystery man could have abducted the victim. Yet the prosecutor's sarcasm was permissible because it stemmed from the evidence and was used to highlight weaknesses in the defense's theory. 301 Kan. at 523, 526. Detective Sherer's behavior in this video is not on par with direct and repeated accusations that the defendant is a liar, as in Elnicki. His use of sarcasm was limited to the scope of the investigation and employed to highlight weaknesses in Foster's statements. His isolated gestures were not unprofessional, distracting, or otherwise improper. We find no error in the district court's admission of the videotaped interview.

Foster failed to adequately support his constitutional challenge to K.S.A. 2020 Supp. 21-6304(a)(2).

Finally, Foster raises a constitutional challenge to K.S.A. 2020 Supp. 21-6304(a)(2), which criminalizes possession of a firearm by a convicted felon. He argues this statute violates section 4 of the Kansas Constitution Bill of Rights because, while section 4 allows limits on the use of a firearm, it places no limits on the possession of a firearm. According to Foster, since K.S.A. 2020 Supp. 21-6304(a)(2) criminalizes possession of a firearm for certain individuals, it conflicts with section 4 and infringes on the right to possess a firearm guaranteed by the Kansas Constitution Bill of Rights. While Foster did not raise this issue below, he argues this court can still consider it. Generally, Kansas courts do not consider constitutional issues raised for the first time on appeal. There are exceptions to this rule, which include: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case, (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights, and (3) the district court was right for the wrong reason. State v. Johnson, 309 Kan. 992, 995, 441

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P.3d 1036 (2019). "But just because an exception may permit review of an unpreserved issue, this alone does not obligate an appellate court to exercise its discretion and review the issue." State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017). 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). Foster says the first two exceptions apply here, but he offers only conclusory analysis and provides no legal support for his assertion. Issues not adequately briefed are deemed waived or abandoned. This includes "'point[s] raised only incidentally in a brief but not argued there.'" Russell v. May, 306 Kan. 1058, 1089, 400 P.3d 647 (2017) (citing State v. Logsdon, 304 Kan. 3, 29, 371 P.3d 836 [2016], and National Bank of Andover v. Kansas Bankers Sur. Co., 290 Kan. 247, 281, 225 P.3d 707 [2010]). Further, if we allow routine claims of exceptions, like Foster's, those exceptions will swallow the rule and effectively render it meaningless. Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 35) imposes on Foster the burden to explain why this court can consider his argument for the first time on appeal. State v. Williams, 298 Kan. 1075, 1085, 319 P.3d 528 (2014). He did not carry his burden and, thus, has waived the issue. Bone v. State, No. 119,371, 2019 WL 2147711, at *3 (Kan. App. 2019) (unpublished opinion) ("Be- cause Bone provides no more than an unpersuasive and conclusory justification for this court to consider his claims for the first time on appeal, we find that Bone has waived or abandoned these claims."). Our Supreme Court's rules and precedent firmly place the burden to justify consideration of an issue for the first time on appeal upon the party who newly raises the issue. We disagree with the concurrence's shifting of that burden from the party onto this court. We recognize our colleague reads Foster's brief differently than we do and desires to address his newly raised constitutional challenge. However, we decline to consider the challenge because we believe it is important for parties to first raise and develop a record regarding their issues, particularly nuanced constitutional issues such as this one, in the district court. We disagree with the

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State v. Foster concurrence's assertion that this issue has been festering in the district court. That is the problem. It hasn't been. Appellants have only been raising this issue for the first time on appeal. Our court has repeatedly turned away unpreserved constitutional challenges to K.S.A. 2020 Supp. 21-6304 on prudential grounds because, despite repeated admonishments, appellants failed to raise the issue below. See, e.g. State v. Valdez, No. 121,053, 2021 WL 1324023, at *3 (Kan. App. 2021) (unpublished opinion) ("evaluating such a challenge for the first time on appeal would require factual, legal, and historical analysis not found in this record"), petition for rev. filed May 5, 2021; State v. Miner, No. 122,372, 2021 WL 401282, at *2 (Kan. App. 2021) (unpublished opinion) (noting failure to challenge constitutionality of probation condition prohibiting possession of a firearm below "deprived the trial judge of the opportunity to address the issue in the context of this case" which "analysis would have benefitted [appellate] review"), petition for rev. filed March 8, 2021; State v. Pugh, No. 120,929, 2021 WL 218900, at *5 (Kan. App. 2021) (unpublished opinion) ("Because Pugh failed to raise this issue at trial, there is a lack of evidence in the record to supply this court a sound foundation for meaningful review."); State v. Tucker, No. 121,260, 2020 WL 7293619 (Kan. App. 2020) (unpublished opinion), petition for rev. filed January 11, 2021; State v. Johnson, No. 121,187, 2020 WL 5587083, at *5 (Kan. App. 2020) (unpublished opinion) ("Though the ultimate decision as to whether a law infringes some constitutional provision is a question of law, constitutional questions—especially novel claims that have not been before considered—often involve considerable factual development and require the determination of multiple legal questions along the way."), rev. denied 313 Kan. __ (April 23, 2021). We decline to consider the merits of Foster's constitutional challenge for the same reason.

Affirmed.

* * *

ARNOLD-BURGER, C.J, concurring: The majority follows the lead of two other panels of this court by failing to consider a constitutional challenge to K.S.A. 2020 Supp. 21-6304(a) raised for

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State v. Foster the first time on appeal. See State v. Pugh, No. 120,929, 2021 WL 218900 (Kan. App. 2021) (unpublished opinion); State v. John- son, No. 121,187, 2020 WL 5587083 (Kan. App. 2020) (unpublished opinion), rev. denied 313 Kan. __ (April 23, 2021). I believe we should consider Foster's claim. But I concur in the ultimate result reached by the majority because I believe the claim fails on the merits.

Foster properly asserted an issue for the first time on appeal, and we should consider it.

Generally, Kansas courts do not consider constitutional issues raised for the first time on appeal. There are exceptions to this rule, which include: (1) the newly asserted theory involves only a question of law arising on proved or admitted facts and is finally determinative of the case, (2) consideration of the theory is necessary to serve the ends of justice or to prevent denial of fundamental rights, and (3) the district court was right for the wrong reason. State v. Johnson, 309 Kan. 992, 995, 441 P.3d 1036 (2019). When an issue was not raised in the district court, "there must be an explanation why the issue is properly before the court." Supreme Court Rule 6.02(a)(5) (2021 Kan. S. Ct. R. 36). And to be properly before the court the appellant must establish that one of the recognized exceptions applies, and the court must agree that at least one of the court-recognized exceptions applies to justify considering the claim. See State v. Godfrey, 301 Kan. 1041, 1043, 350 P.3d 1068 (2015) (directing parties who wish to raise an issue for the first time on appeal to explain why the issue is properly before this court by arguing one of the listed exceptions). Although I agree with the majority that our Supreme Court made it clear in State v. Parry, 305 Kan. 1189, 1192, 390 P.3d 879 (2017), that the decision to consider an issue for the first time on appeal is a prudential one, cases from the Supreme Court that have been decided since Parry—where the appellant did list an exception as required but the court declined to consider the issue—appear to rely on clear reasons for such declination. See State v. Queen, 313 Kan. 12, 26, 482 P.3d 1117 (2021) (disagreeing that the issue presented a pure question of law); State v. Gray, 311 Kan. 164, 170, 459 P.3d 165 (2020) (finding that failure to raise issue below deprived trial judge opportunity to address the issue

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State v. Foster and such an analysis would have benefitted appellate review); see also State v. Magee, No. 122,373, 2021 WL 2171505, at *3 (Kan. App. 2021) (unpublished opinion) (noted only because it was decided by the same panel as here, disagreed that fundamental right was at stake and found that the appellant would have another opportunity to raise the issue before district court if the court incar- cerated the defendant for failing to pay a fine). But see State v. Gentry, 310 Kan. 715, 734, 449 P.3d 429 (2019) (no reason given for not considering claim even though exception argued by appellant); State v. Robinson, 306 Kan. 1012, 1026, 399 P.3d 194 (2017) (same). Our Supreme Court has not overruled Johnson or any of the other cases citing the three exceptions that allow the court to consider a matter for the first time on appeal. But a routine application of Parry could have the practical effect of overruling those cases. At the least, it would result in what some could term arbitrary decisions by this court, with some panels considering an issue and others declining to consider the same issue. On the other hand, requiring the court to justify its prudential decision not to consider an issue on appeal, would lead us back to Johnson and effectively overrule Parry. It would require the court to enter findings as to why the exceptions did not or should not apply. This case is a good example of the conundrum we face. This is the third panel to reject a constitutional challenge to K.S.A. 2020 Supp. 21-6304(a), Pugh and Johnson being the latest. But another panel chose to rule on basically the same issue as it relates to K.S.A. 2020 Supp. 21- 6301(a)(13). See State v. McKinney, 59 Kan. App. 2d 345, 355, 481 P.3d 806 (2021), petition for rev. filed March 1, 2021 (holding that section 4 should be interpreted the same as the United States Constitution and that K.S.A. 2020 Supp. 21-6301[a][13] which prohibits the possession of a firearm by a person who is mentally ill is not facially unconstitutional under section 4 of the Kansas Constitution Bill of Rights). So in order to prevent the exception to the exceptions—Parry—from effectively overruling the exceptions, I believe the more prudent course is to state the reasons the court is not considering an issue that otherwise meets the Johnson criteria. The majority fails to do so here, so I write separately.

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I believe Foster has properly preserved his claim by invoking two exceptions to our general rule that merit consideration. Foster has done everything we have asked of an appellant who raises an issue for the first time on appeal. He argues that the fundamental right at issue is the right to bear arms and correctly states that the issue only involves a question of law that would be dispositive of his criminal possession of a weapon charge—thus relying on exceptions 1 and 2 from Johnson. And he has done so in more than a conclusory manner. Foster makes a cognizant argument for the statute's unconstitutionality over the course of several pages of his brief, citing supporting authority. The State responded in kind. The majority fails to note what additional information it believes is necessary to decide Foster's claim. I am at a loss. It is not a difficult constitutional issue to grasp, and it is one that has been raised numerous times in both federal and state courts. Moreover, I agree that Foster's newly asserted claim meets the two recognized exceptions he relies upon—it involves only a question of law—one that would be dispositive of his conviction for criminal possession of a weapon—and it involves a fundamental right—the right to bear arms. And because the claim has been asserted at least two times already before this court, we should decide it rather than allowing the issue to continue to fester in our district courts for no good reason except that we can. And again, another panel of this court took a similar approach as I do here, by electing to consider a first-time challenge to constitutionality of K.S.A. 2020 Supp. 21-6301(a)(13). McKinney, 59 Kan. App. 2d at 355. So, unlike the majority, I will do what I think it should and examine the merits of Foster's claim.

Foster makes a facial constitutional challenge to K.S.A. 2020 Supp. 21-6304(a)(2).

Foster was convicted of the murder of David Payne. Death was caused by Foster shooting Payne with a firearm. He was also convicted of unlawful possession of a firearm by a convicted felon. At the time of the offense, he was already a convicted felon—having been convicted of a felony drug offense just over two years prior to the commission of this murder. He argues the felon in possession of a firearm statute violates section 4 of the Kansas Constitution Bill of Rights because, while section 4 allows

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State v. Foster limits on the use of a firearm, it places no limits on the possession of a firearm. According to Foster, since K.S.A. 2020 Supp. 21- 6304(a)(2) criminalizes possession of a firearm for certain individuals, it conflicts with section 4 and infringes on the right to possess a firearm guaranteed by the Kansas Constitution Bill of Rights. He argues only that the statute is facially unconstitutional. "'A facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.'" State v. Watson, 273 Kan. 426, 435, 44 P.3d 357 (2002) (citing United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 [1987]). "Such challenges are disfavored, because they may rest on speculation, may be contrary to the fundamental principle of judicial restraint, and may threaten to undermine the democratic process." State v. Bollinger, 302 Kan. 309, 318-19, 352 P.3d 1003 (2015). "When a party has asserted a facial challenge to the constitutionality of a statute, the question is not whether that statute is authorized by the constitution, but whether it is prohibited thereby." In re Tax Appeal of Weisgerber, 285 Kan. 98, 102, 169 P.3d 321 (2007). To succeed in a typical facial attack, "the challenger must establish that no set of circumstances exists under which the [statute] would be valid." United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct. 2095, 95 L. Ed. 2d 697 (1987). That is the basis of Foster's argument—that K.S.A. 2020 Supp. 21-6304(a)(2) is a legislative enactment prohibited by the section 4 of the Kansas Constitution Bill of Rights. He asserts that there would be no situation in which this statute would be lawful because he has a fundamental right to possess a firearm, regardless of his criminal history.

Our standard of review is de novo, and we do not presume the statute is constitutional.

This court reviews the constitutionality of a statute as a question of law and applies a de novo standard of review. Tolen v. State, 285 Kan. 672, 673, 176 P.3d 170 (2008). When a fundamental right is challenged, there is no presumption of constitutionality. This is because government infringement on a constitutional right is inherently suspect. Hodes & Nauser, MDs, P.A. v. Schmidt,

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State v. Foster

309 Kan. 610, 673, 440 P.3d 461 (2019). The right to bear arms is a fundamental constitutional right. See McDonald v. City of Chicago, 561 U.S. 742, 778, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010) ("it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty"). So we do not apply a presumption of constitutionality to K.S.A. 2020 Supp. 21-6304(a)(2). That said, before we may strike down a statute, we must first determine whether it clearly violates the defendant's rights secured by the Constitution. State v. Boysaw, 309 Kan. 526, 532, 439 P.3d 909 (2019). If it does, we look to whether the statutory infringement or limitation on that right is acceptable. To determine if it is an acceptable infringement on a constitutional right, we look to see if the infringement can meet the proper constitutional test. In the case of a fundamental constitutional right the test is generally one of strict scrutiny. See Hodes, 309 Kan. at 663. The strict scrutiny test requires us to determine whether the government's infringement of the constitutional right is narrowly tailored to serve a compelling government interest. See State v. Ryce, 303 Kan. 899, 957, 368 P.3d 342 (2016).

K.S.A. 2020 Supp. 21-6304(a)(2) does not infringe on the right to bear arms under section 4 of the Kansas Constitution Bill of Rights.

So I return to the first task of determining whether K.S.A. 2020 Supp. 21-6304(a)(2) infringes on Foster's fundamental constitutional right to possess a firearm. To determine if a constitutional right has been violated, we "look to the words of the Kansas Constitution to interpret its meaning. When the words do not make the drafters' and people's intent clear, courts look to the historical record, remembering the polestar is the intention of the makers and adopters of the relevant provisions." Hodes, 309 Kan. 610, Syl. ¶ 4. Consequently, I begin my analysis by turning to the text of the applicable constitutional provision. Section 4 of the Kansas Constitution Bill of Rights provides:

"A person has the right to keep and bear arms for the defense of self, family, home and state, for lawful hunting and recreational use, and for any other lawful purpose; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power." (Emphasis added.)

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State v. Foster

It is important to point out, as Foster does in his brief, that this provision was adopted in 2010. Section 4 from the time of statehood until 2010 read as follows:

"The people have the right to bear arms for their defense and security; but standing armies, in time of peace, are dangerous to liberty, and shall not be tolerated, and the military shall be in strict subordination to the civil power."

The differences between the original version and the current ver- sions are important to our discussion. The new provision seems clear. An individual in Kansas has a right to possess a firearm for the purposes listed, but not for an unlawful purpose. This reservation of rights to the government to declare some possession "unlawful" was new to the 2010 version. So as with any constitutional right, even a fundamental one, in this case the voters have indicated a desire to place certain limits on the constitutional right of the people to possess a firearm. See In re P.R., 312 Kan. 768, 778, 480 P.3d 778 (2021) (finding that a fundamental right to parent is not without limits); Ryce, 303 Kan. at 913 (noting that the fundamental rights under the Fourth Amendment to the United States Constitution do not proscribe all searches and seizures, just unreasonable ones); State v. Limon, 280 Kan. 275, 283-84, 22 P.3d 222 (2005) (noting that the federal fundamental right to equal protection under the law can be limited legislatively under certain circumstances); State v. Risjord, 249 Kan. 497, 502-03, 819 P.2d 638 (1991) (finding a right to travel is a fundamental right, but it can be subject to regulation for public safety). There would be no reason for the granting of the right to possess firearms for any other lawful purpose unless there was a corresponding prohibition aimed at possessing a firearm for an unlawful purpose. We must "'presume that every word has been carefully weighed, and that none are inserted, and none omitted without a design for so doing.'" Hodes, 309 Kan. at 622-23. To understand the use of the phrase lawful purpose I next focus on what an unlawful purpose was when this provision was adopted.

It has been unlawful for over 50 years to possess a firearm in Kansas if you are a convicted felon.

When the current version of section 4 was adopted by Kansas voters in 2010, it was done with the knowledge that it was unlawful in Kansas to possess a firearm if you had been convicted of a

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State v. Foster felony in the preceding five years. K.S.A. 2010 Supp. 21- 6304(a)(2).

"(a) Criminal possession of a firearm by a convicted felon is possession of any firearm by a person who: . . . . (2) . . . within the preceding five years has been convicted of a felony, other than those specified in subsection (a)(3)(A), under the laws of Kansas or a crime under a law of another jurisdiction which is substantially the same as such felony, has been released from imprisonment for a felony or was adjudicated as a juve- nile offender because of the commission of an act which if done by an adult would constitute the commission of a felony, and was not found to have been in possession of a firearm at the time of the commission of the crime." K.S.A. 2010 Supp. 21-6304(a)(2).

This statutory provision was adopted by the Kansas Legisla- ture in its current form in July 2010 when the Legislature clearly knew that an amendment to section 4 of the Kansas Constitution Bill of Rights would be submitted to the voters just a few months later. See L. 2010, ch. 136, § 189 (adopting K.S.A. 21-6304); L. 2009, ch. 152, § 1 (setting constitutional amendment to section 4 on the November 2010 ballot). In addition, the Legislature has continued to amend the statute, though not this provision in any pertinent way, in 2011, 2013, and 2014 with full knowledge of the provisions of the Kansas Constitution. See L. 2011, ch. 91, § 34; L. 2013, ch. 36, § 2; L. 2014, ch. 97, § 12. And a provision similar to K.S.A. 21-6304(a)(2) has been in the Kansas statutes, in some form, since at least 1969 under a different statute number, K.S.A. 21-4204(a)(3). See L. 1969, ch. 180, § 21-4204. So it has been unlawful for a convicted felon to possess a firearm for over 50 years. The Legislature's clear intent to continue to make the otherwise constitutional possession of a firearm unlawful was rein- forced by its reenactment of the provisions of K.S.A. 21- 4204(a)(3)—as K.S.A. 2020 Supp. 21-6304(a)(2)— simultaneously with the constitutional amendment. In other words, a Kan- san has the right to possess a gun for defending self, family, home, and state and for lawful hunting and recreational use, but does not have a right to possess a gun when the Legislature has determined circumstances under which it is unlawful. Even though the limitation on possessing arms for only lawful purposes was not an option available in the prior version of section 4, caselaw in Kansas prior to 2010 supported the government's

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State v. Foster ability to regulate the possession of firearms under the original section 4. See City of Junction City v. Lee, 216 Kan. 495, 497-98, 532 P.2d 1292 (1975) (not violation of section 4 of Kansas Con- stitution Bill of Rights for city to adopt ordinance more restrictive than state law that prohibited person from openly carrying a firearm in the city); Salina v. Blaksley, 72 Kan. 230, 232-34, 83 P. 619 (1905) (holding city of Salina could prohibit a person who was intoxicated from carrying a revolver within the city limits without being in violation of section 4 of the Kansas Constitution Bill of Rights). Accordingly, I am led to conclude that the regulation of firearms related to felons provided in K.S.A. 2020 Supp. 21- 6304(a)(2) is not prohibited under section 4 of the Kansas Consti- tution Bill of Rights. Instead, it is entirely consistent with its plain and unambiguous language. Section 4 appears to provide a reservation of rights to the Legislature to designate circumstances in which it deems possession unlawful. And the provision of K.S.A. 2020 Supp. 21-6304(a)(2) is a longstanding prohibition that the Legislature was aware of when it adopted the most recent amendments to section 4. Accordingly, finding that the statute does not infringe a constitutional right, there is no need to examine whether the statute passes the strict scrutiny test. Foster's facial challenge fails.

Likewise, K.S.A. 2020 Supp. 21-6304(a)(2) does not infringe on the Second Amendment of the United States Constitution.

Foster does not bring a challenge under the Second Amend- ment to the United States Constitution, but reviewing similar jurisprudence under the Second Amendment bolsters my conclusion that Foster presents an inadequate facial challenge to K.S.A. 2020 Supp. 21-6304(a)(2). Moreover, the general rule in Kansas is that provisions in the Kansas Constitution are interpreted similarly to their federal counterparts "notwithstanding any textual . . . differences." State v. Lawson, 296 Kan. 1084, 1091, 297 P.3d 1164 (2013). I pause to note that as to the most basic textual difference, section 4 of the Kansas Constitution grants certain rights to the people or individuals, while the United States Constitution Bill of

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State v. Foster

Rights places a limitation on government power by prohibiting it from adopting any laws that infringe on designated rights. Our Su- preme Court touched on this distinction in Schaake v. Dolley, 85 Kan. 598, 601, 118 P. 80 (1911), when it described the Kansas Constitution Bill of Rights as "a political maxim addressed to the wisdom of the legislature and not a limitation upon its power." But it rejected that position in Winters v. Myers, 92 Kan. 414, 428, 140 P. 1033 (1914) ("while declaring a political truth, [section 2 of the Kansas Constitution Bill of Rights] does not permit legislation which trenches upon the truth thus affirmed"). See Hodes, 309 Kan. at 634-36 (discussing the meaning of Schaake, Winters, and their progeny and holding that the Kansas Constitution Bill of Rights limits government power). So I proceed to jurisprudence surrounding the Second Amendment to the United States Consti- tution for guidance. The Second Amendment to the United States Constitution provides that "the right of the people to keep and bear Arms, shall not be infringed." Both the Kansas Constitution and the United States Constitution protect an individual's right to bear arms. See District of Columbia v. Heller, 554 U.S. 570, 579-80, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008). But as already indicated, like most federal constitutional rights, this right is not unlimited. 554 U.S. at 595. Even the United States Supreme Court, as expressed by Justice Scalia, noted that there were widely recognized restrictions on the right to bear arms:

"[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws for- bidding the carrying of firearms in sensitive places such as schools and government buildings." 554 U.S. at 626.

The Court noted that these prohibitions are "presumptively lawful regulatory measures" that do not run afoul of the Second Amendment. 554 U.S. at 627 n.26; see also McDonald, 561 U.S. at 786 ("We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill' . . . . We repeat those assurances here."); United States v. Griffith, 928 F.3d 855, 870-71 (10th Cir. 2019) (citing Heller in rejecting defendant's claim that Second Amendment granted him an absolute

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State v. Foster right to carry a weapon so his conviction for felon in possession of a firearm should be reversed). Federal courts are split on whether these longstanding and presumptively lawful regulatory measures completely fall outside the scope of the Second Amendment protections (meaning they do not infringe a constitutional right at all) or whether they burden conduct protected by the Second Amendment but presumptively pass muster in a facial attack. See Pratt, A First Amendment-In- spired Approach to Heller's "Schools" and "Government Build- ings," 92 Neb. L. Rev. 537, 562 (2014). Regardless of the position taken, all federal circuit courts—with the exception of the Court of Appeals for the Federal Circuit—have addressed facial challenges to the federal felon-in-possession of a firearm statute and have rejected them, concluding that the "'presumptively lawful'" language of Heller prevents success on such a claim. See Kanter v. Barr, 919 F.3d 437, 442 (7th Cir. 2019) (listing cases involving facial challenges to prohibitions on possession of firearms by felons); State v. Craig, 826 N.W.2d 789, 794 (Minn. 2013) (listing cases involving facial challenges to prohibitions on possession of firearms by felons). So even though the Second Amendment does not contain the unique "any lawful" purpose language of section 4, which specifically reserves the right of the government to proclaim some arms possession unlawful, the result is still the same for the Second Amendment as for section 4—felon in possession of firearm statutes do not infringe on the Second Amendment.

Likewise, statutes like K.S.A. 2020 Supp. 21-6304(a)(2) do not infringe on the constitutional right to bear arms in other states.

Finally, to further bolster my position here, state supreme courts that have considered the issue—with one exception noted below—have found felon in possession statutes constitutional under either facial or as-applied challenges, based on similar, and in some cases even narrower, state constitutional provisions. See People v. Blue, 190 Colo. 95, 102-03, 544 P.2d 385 (1975) (felon in possession law did not violate Colo. Const. art. 2, § 13—"'The right of no person to keep and bear arms in defense of his home,

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State v. Foster person and property, or in aid of the civil power when thereto legally summoned, shall be called in question; but nothing herein contained shall be construed to justify the practice of carrying concealed weapons.'"); State v. Eberhardt, 145 So. 3d 377, 379 (La. 2014) (felon in possession of firearm statute not unconstitutional under art. I, § 11 of the Louisiana Constitution which provides— after a 2012 amendment—that "[t]he right of each citizen to keep and bear arms is fundamental and shall not be infringed. Any restriction on this right shall be subject to strict scrutiny"); State v. Brown, 571 A.2d 816, 821 (Me. 1990) (felon in possession of firearm statute was not unconstitutional under Maine Const. art. 1, § 16—"Every citizen has a right to keep and bear arms and this right shall never be questioned."); State v. Clay, 481 S.W.3d 531, 538 (Mo. 2016) (felon in possession law did not violate recently amended Mo. Const. art. 1, § 23—"That the right of every citizen to keep and bear arms, ammunition, and accessories typical to the normal function of such arms, in defense of his home, person, family and property, or when lawfully summoned in aid of the civil power, shall not be questioned. The rights guaranteed by this section shall be unalienable. Any restriction on these rights shall be subject to strict scrutiny and the state of Missouri shall be ob- ligated to uphold these rights and shall under no circumstances decline to protect against their infringement. Nothing in this section shall be construed to prevent the general assembly from enacting general laws which limit the rights of convicted violent felons or those adjudicated by a court to be a danger to self or others as result of a mental disorder or mental infirmity," even when applied to nonviolent felons); State v. McCoy, 468 S.W. 3d 892, 894 (Mo. 2015) (same as applied to felons in possession under prior version of Mo. Const. art. 1, § 23—"That the right of every citizen to keep and bear arms . . . in defense of his home, person, and property, or when lawfully summoned in aid of the civil power, shall not be questioned, but this shall not justify the wearing of concealed weapons."); State v. Comeau, 233 Neb. 907, 916, 448 N.W.2d 595 (1989) (felon in possession statute not unconstitutional under Neb. Const. art. I, § 1—"All persons are by nature free and independent, and have certain inherent and inalienable rights; among these are life, liberty, the pursuit of happiness, and

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State v. Foster the right to keep and bear arms for security or defense of self, family, home, and others, and for lawful common defense, hunting, recreational use, and all other lawful purposes, and such rights shall not be denied or infringed by the state or any subdivision thereof."); State v. Smith, 132 N.H. 756, 758, 571 A.2d 279 (1990) (felon in possession statute not unconstitutional under N.H. Const. Pt. 1, art. 2-a—"All persons have the right to keep and bear arms in defense of themselves, their families, their property and the state."); State v. Roundtree, 395 Wis. 2d 94, 103, 115, 952 N.W.2d 765 (2021) (felon in possession statute not unconstitutional under Wis. Const. art. 1, § 25—"[t]he people have the right to keep and bear arms for security, defense, hunting, recreation or any other lawful purpose"—even if felony was for failure to pay child support 10 years ago). But see Britt v. State, 363 N.C. 546, 550, 681 S.E.2d 320 (2009) (statute prohibited convicted felons from ever in their lifetime possessing a firearm was unreasonable and violated N.C. Const. art. 1, § 30—"A well regulated militia being necessary to the security of a free State, the right of the people to keep and bear arms shall not be infringed; and, as standing armies in time of peace are dangerous to liberty, they shall not be maintained, and the military shall be kept under strict subordination to, and governed by, the civil power,"—as applied to the defendant whose conviction occurred 30 years earlier with no new offenses).

In conclusion, K.S.A. 2020 Supp. 21-6304(a)(2) is not facially unconstitutional.

In sum, once we take Foster up on his invitation to consider his argument for the first time on appeal, he must make it convincingly. He fails to do so here. Foster points to nothing in the plain language of section 4, in the history of the Kansas Constitution, or in our caselaw that would suggest the right to bear arms limits lawful regulatory measures such as the prohibition against possession of weapons by convicted felons. Nor does he provide any factual, historical, or legal reason why Kansans intended the protections of the Kan- sas Constitution to apply more broadly to persons convicted of felonies than the United States Constitution does. See State v. Sal- ary, 309 Kan. 479, 481, 437 P.3d 953 (2019) (holding failure to

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State v. Foster support a point with pertinent authority or show why it is sound despite a lack of supporting authority is like failing to brief an issue). Indeed, section 4's language recognizing an individual right to bear arms only for lawful purposes cuts against Foster's broad reading. The State, on the other hand, presents a compelling argument that K.S.A. 2020 Supp. 21-6304(a)(2) does not infringe on the right to bear arms at all.

For the reasons stated, I would find that Foster has failed to convincingly argue that K.S.A. 2020 Supp. 21-6304(a)(2) is facially unconstitutional, and I would affirm his conviction.

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State v. Betts

___

No. 122,268

STATE OF KANSAS, Appellant, v. DEXTER BETTS, Appellee.

___

SYLLABUS BY THE COURT

1. CRIMINAL LAW—Motion for Immunity Based on Self-Defense—District Court's Considerations. When evaluating a motion for immunity on the basis of self-defense pursuant to K.S.A. 2020 Supp. 21-5231, a district court must consider the totality of circumstances, weigh the evidence presented without deference to the State, and determine whether the State established probable cause that a defendant's use of force was not statutorily justified.

2. SAME—Self-Defense Immunity Motion—Probable Cause Determination. Probable cause, in the self-defense immunity setting, means the facts as found by the district court are sufficient for a person of ordinary prudence and caution to conscientiously entertain a reasonable belief of a defendant's guilt despite a claim of justified use-of-force immunity.

3. SAME—Pretrial Immunity Motion—Two-Step Process for Determination of Probable Cause. District courts follow a two-step process when making the probable cause determination on a pretrial immunity motion. At the first step, the district court makes factual findings based on stipulations from the parties and the evidence presented, along with reasonable inferences drawn from them. As part of the first step, district courts must resolve evidentiary conflicts in favor of one party or the other. At the second step, district courts must make legal conclusions as to whether State has met probable cause burdens based on the factual findings.

4. SAME—Motion for Immunity—No Disputed Facts—Appellate Review. When there are no disputed material facts on a motion for immunity under K.S.A. 2020 Supp. 21-5231, an appellate court is presented with a pure question of law over which it exercises unlimited review.

5. SAME—Motion for Immunity Based on Self-Defense—Application of Two- Prong Test When Defendant Uses Deadly Force. In a self-defense context, a two-prong test applies when a defendant uses deadly force. The first prong is subjective and requires a showing that the defendant sincerely and honestly believed it was necessary to use deadly force to protect the defendant or a third person. The second prong is objective and requires a showing that a reasonable person in the defendant's circumstances would have perceived as necessary the use of deadly force to prevent imminent death or great bodily injury to the defendant or a third person.

6. SAME—Motion for Immunity Based on Self-Defense—Dog May Be Con- sidered Deadly Weapon to Justify Deadly Force by Defendant. Depending

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on the manner in which it behaves, a dog may be considered a deadly weapon. In this instance, applying the two-prong test to the evidence presented at the hearing—which included the officer's belief that the dog was a pit bull and that it barked and lunged at the officer—the officer was justified in using deadly force to prevent imminent death or great bodily harm as required under K.S.A. 2020 Supp. 21-5222(b).

7. SAME—Claims of Self-Defense and Immunity—Distinct Concepts. Self- defense and immunity are distinct concepts, and the distinction between the two concepts is effectively lost if a case is erroneously permitted to go to trial. Since K.S.A. 2020 Supp. 21-5231 confers true immunity, district courts evaluating claims of immunity must perform a procedural gatekeeping function and prevent cases where defendants qualify for immunity from going to trial.

8. SAME—Motion for Immunity under K.S.A. 21-5231—Requires Self-De- fense Claim under K.S.A. 21-5222. To qualify for immunity under K.S.A. 2020 Supp. 21-5231, a defendant must have the ability to claim self-defense under K.S.A. 2020 Supp. 21-5222. The district court must then determine whether the use of force by the defendant seeking immunity is justified or unjustified.

9. SAME—Motion for Immunity Based on Self-Defense—Liability if Exces- sive Force Used by Defendant. A defendant is only criminally liable for excessive force if self-defense is first found to exist.

10. SAME—Statutory Claim of Immunity—Consideration of Defendant's Claim of Self-Defense. In the context of a claim of immunity under K.S.A. 2020 Supp. 21-5231, Kansas law permits a district court to consider a defendant's claims of self-defense regardless of whether the State has charged the defendant with conduct that constitutes an intentional, knowing, or reckless crime.

Appeal from Sedgwick District Court; KEVIN J. O'CONNOR, judge. Opinion filed June 18, 2021. Affirmed.

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

Jess W. Hoeme, of Joseph, Hollander & Craft LLC, of Wichita, and Carrie E. Parker, of Joseph, Hollander & Craft LLC, of Topeka, for appellee.

Before BRUNS, P.J., BUSER, J., and WALKER, S.J.

WALKER, J.: The State of Kansas appeals from the district court's finding that Wichita Police Officer Dexter Betts was immune from prosecution for reckless aggravated battery by virtue of the provisions of K.S.A. 2020 Supp. 21-5231. Betts had been charged with the crime after firing two gunshots at a dog while

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State v. Betts investigating a domestic violence report. Although Betts' shots missed the dog, bullet fragments ricocheted and hit a nearby young girl in the face and foot. After careful review of the district court's ruling and several related appellate cases, we find the court conducted the proper legal analysis and therefore affirm its decision finding Betts immune from prosecution for reckless aggravated battery in the incident.

FACTS

On December 30, 2017, Wichita Police Officers Andrew Corlis and Betts responded to a report of domestic violence with a weapon at a residence in Sedgwick County. The reporting party informed police that a man was holding a gun and was potentially planning to use the gun to commit suicide. The caller, who was the man's ex-wife, also reported that the man had been choking a dog. When Corlis and Betts arrived at the scene, the man, who they believed was their suspect, was standing at the end of the driveway with his hands in the air. As they stood in the driveway, the officers saw children inside the home. Betts and Corlis approached the man simultaneously and checked him for weapons, but they did not find any. Shortly thereafter, Sergeant Jim Crouch arrived on scene. Crouch took control of the man and told Betts and Corlis to go inside the house to check on the children and try to find the reporting party. When the officers entered the residence, they saw three children sitting in the living room. Betts' body camera showed two boys standing in front of a television and a girl sitting on the floor in front of a couch. As they were entering the house, Crouch told Betts and Corlis he had learned that the gun was in a bedroom. Corlis then continued straight and went into a bedroom on the left, where he found the gun underneath one of the pillows. Corlis yelled to Betts, who was not in the room, that he had located the gun. Meanwhile, Betts proceeded to the right down a hallway with multiple doorways with his gun drawn. Betts opened a couple of the doors and told Corlis there was a dog in the house. Betts initially walked back- wards, then turned around and walked towards the room Corlis was in. As he was walking, the dog barked and lunged at Betts,

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State v. Betts who fired two rounds from his gun at the dog. Betts then told Corlis that the dog had attacked him. Immediately after the shots were fired, the young girl, who was sitting near where Betts had shot at the dog, began screaming about her eye. Fragments from one of the bullets had ricocheted and hit the girl in the eyebrow and toe. The officers then told the children to exit the house. Shortly thereafter, Crouch asked the officers via radio whether they were fine. Betts responded and told Crouch that they were fine and that shots had been fired at the dog after it attacked him. Crouch told them that he could not hear what they said, and Betts responded again and told Crouch that the dog had attacked him. Crouch then directed Corlis and Betts to exit the house. In March 2018, the State charged Betts with one count of reckless aggravated battery as a result of the injuries to the girl. In July, Betts filed a pretrial motion to dismiss based on statutory immunity. In September 2018 the State responded to Betts' motion and argued he was not entitled to immunity. Nearly a year later, in August 2019, the district court held an evidentiary hearing on Betts' motion. After hearing arguments from both parties, the district court took the matter under advisement. The following month, the district court issued its ruling, finding that Betts was entitled to statutory immunity under K.S.A. 21-5231 and granting Betts' motion to dismiss the case. The State has timely appealed from the district court's order.

ANALYSIS

On appeal, the State argues the district court erred in dismissing the case against Betts after finding that he was entitled to immunity under K.S.A. 2020 Supp. 21-5231. In reviewing a district court's ruling on a motion to dismiss based on immunity under K.S.A. 2020 Supp. 21-5231, we apply a bifurcated standard of review of the district court's findings. Ac- cordingly, when the district court's factual findings arise out of disputed evidence, we must determine if the findings are supported by substantial competent evidence. In doing so, we do not reweigh the evidence. The ultimate legal conclusion as to whether the facts so found arise to the level of probable cause is a legal conclusion which we review de novo. When there are no disputed

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State v. Betts material facts on a motion under K.S.A. 2020 Supp. 21-5231, we are presented with a pure question of law over which we exercise unlimited review. State v. Hardy, 305 Kan. 1001, 1012, 390 P.3d 30 (2017). Kansas' self-defense immunity statute states:

"(a) A person who uses force which, subject to the provisions of K.S.A. 2020 Supp. 21-5226, and amendments thereto, is justified pursuant to K.S.A. 2020 Supp. 21-5222, 21-5223 or 21-5225, and amendments thereto, is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer who was acting in the performance of such officer's official duties and the officer identified the officer's self in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, 'criminal prosecution' includes arrest, deten- tion in custody and charging or prosecution of the defendant. . . . . "(c) A prosecutor may commence a criminal prosecution upon a determination of probable cause." K.S.A. 2020 Supp. 21-5231.

As evidenced by the plain language of K.S.A. 2020 Supp. 21- 5231, the Legislature intended to create a "true immunity" that prevents the State from criminally prosecuting individuals who are justified in their use of force. District courts give effect to this immunity by performing a gatekeeping function that insulates a defendant who qualifies for immunity from prosecution and trial. To invoke a district court's gatekeeping function, a defendant files a motion under K.S.A. 2020 Supp. 21-5231, which then places the burden on the State to produce evidence establishing probable cause that the defendant's use of force was not statutorily justified. State v. Phillips, 312 Kan. 643, 655-56, 479 P.3d 176 (2021). When evaluating a claim of self-defense immunity under K.S.A. 2020 Supp. 21-5231, "the district court must consider the totality of the circumstances, weigh the evidence before it without deference to the State, and determine whether the State has carried its burden to establish probable cause that the defendant's use of force was not statutorily justified." Hardy, 305 Kan. at 1011. Re- cently, our Supreme Court clarified that "[i]n the self-defense immunity setting, probable cause means that the facts as found by the district court are sufficient for a person of ordinary prudence

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State v. Betts and caution to conscientiously entertain a reasonable belief of defendant's guilt despite the claim of justified use-of-force immunity." State v. Collins, 311 Kan. 418, 426, 461 P.3d 828 (2020). When making its probable cause determination on a pretrial immunity motion, a district court should follow a two-step process:

"First, the district court must make findings of fact based on the stipulations of the parties and evidence presented at the hearing, along with any reasonable inferences therefrom. In this first step, 'the district court usually is squarely tasked with resolving conflicts in the evidence' in favor of one party or the other. Sec- ond, the district court must then reach a legal conclusion as to whether the State has met its probable cause burden based on its factual findings. [Citations omitted.]" Phillips, 312 Kan. at 565.

The district court applied the correct legal standards

Here, the district court concluded that there were no disputed material facts on Betts' motion for immunity. Moreover, neither party disputes this conclusion on appeal. As we noted previously, when there are no disputed material facts on a motion under K.S.A. 2020 Supp. 21-5231, we are presented with a pure question of law over which we exercise unlimited review. Hardy, 305 Kan. at 1012. At the outset of the hearing on Betts' motion for immunity, the district court identified the correct legal standard from Hardy. The district court's ultimate ruling did not reiterate the exact standard, but its ruling referenced and discussed Hardy multiple times. As part of its ruling, the district court concluded that Betts qualified for immunity under K.S.A. 2020 Supp. 21-5231 based on self-defense as defined by K.S.A. 2020 Supp. 21-5222. The Kansas statute defining defense of a person states:

"(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such use of force is necessary to defend such person or a third person against such other's imminent use of unlawful force. "(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person. "(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person." K.S.A. 2020 Supp. 21-5222.

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State v. Betts

The State does not argue that the dog attacking Betts was not an unlawful force as contemplated by the self-defense statute. See K.S.A. 2020 Supp. 21-5222(a); see also Collins, 311 Kan. at 432 (stating that "self-defense immunity is only available when force is necessary to defend against the 'imminent use of unlawful force'"). Accordingly, the State has waived that argument on appeal. See State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019). Here, Betts' actions fall under K.S.A. 2020 Supp. 21-5222(b) because he used his firearm (representing "deadly force") to defend himself from the attacking dog. See K.S.A. 2020 Supp. 21- 5221(a)(1), (a)(2). Our Supreme Court has held that a two-prong test applies in a case involving the use of deadly force in defense of a person:

"The first is subjective. It requires a showing that the defendant sincerely and honestly believed deadly force was necessary to prevent imminent death or great bodily harm to the defendant or a third person. The second prong is objective. It requires a showing that a reasonable person in the defendant's circumstances would have perceived the use of deadly force as necessary to prevent imminent death or great bodily harm to the defendant or a third person." Collins, 311 Kan. at 427-28.

The State agrees that the district court was aware of both the subjective and objective prongs of the test and concluded that Betts' conduct met both prongs. Nonetheless, the State maintains that the district court erred under various rationales. The State contends the district court first erred because, "despite signaling its awareness of the two-prong test, the district court appeared to ignore the objective, reasonable person portion of the test in arriving at its ruling." But that assertion is contra- dicted by the district court's ruling. In the transcript of the district court's bench comments following the hearing, the district court cited and discussed K.S.A. 2020 Supp. 21-5222 and its applicabil- ity to the case. After doing so, the district court then said:

"And I recognize that self-defense requires a subjective and objective belief. "Based upon the evidence, I'll find that Officer Betts reasonably believed that the use of force was necessary. And I'll also find that a reasonable person, or if it's required, because of the fact that Betts is a law enforcement officer, I'll find that a reasonable law enforcement officer, along with a reasonable person, would have believed that the use of force was necessary."

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State v. Betts

Similarly, in its written order granting Betts immunity, the district court found "that a reasonable person and/or a reasonable law enforcement officer would have believed that the use of force in self-defense was necessary under the circumstances." Thus, the State's argument that the district court ignored the objective prong of the test is not supported by the record on appeal. The State's second argument is the district court misapplied the law. To support its argument, the State cites to a portion of the district court's ruling where it stated: "Again, the dispute is not whether Betts was defending himself. He clearly was. The State is alleging that he should not have done so under the circumstances. Maybe not. But within the confines of the immunity statute, he was justified in the use of force in defending himself." (Emphasis added.) From this, the State argues that "[t]he italicized portion of the court's ruling demonstrates that the court improperly concluded that defendant was entitled to immunity, regardless of whether a reasonable person in defendant's circumstances would have perceived the use of deadly force in self-defense as necessary." But the quoted language misconstrues the district court's ruling, as evidenced by the district court's comments earlier in its ruling. Before acknowledging that self-defense requires both a subjective and objective belief and finding that both tests were met, the district court explained that "[t]he evidence in this case is that Officer Betts was defending himself against what he believed to be a pit bull that was advancing and attacking him." The district court went on to say that "[t]he dispute goes as to whether he should have, even though he may have had a right to, whether he should have [defended himself], or not." The language the State quotes is not evidence that the district court misapplied the objective portion of the two-prong test. In- stead, the district court was restating what it had mentioned earlier. When the district court said "[m]aybe not," this appears to be a reference to whether Betts should have allowed the dog to attack him instead of defending himself. This conclusion is supported by the district court's written order, where it stated:

"The court can contemplate factual situations where the State could meet its burden to demonstrate probable cause that use of force by an officer was not justified. This is simply not one of those cases because the dispute in this case is not

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State v. Betts whether Betts was defending himself. The State is alleging that Betts should not have done so under the circumstances. An argument can be made that Officer Betts could have and/or should have allowed the dog to attack him and suffer possible injury to his person. The argument regarding whether Betts should have used force to defend himself under the circumstances is a philosophical argument subject to varied opinions. The analysis the court conducts is confined to the parameters of the statute and neither party disputes and the evidence establishes that Betts was justified in the use of force in defending himself."

The State also argues that the district court misapplied the law by asserting that, under the circumstances, a reasonable person in Betts' position could not have concluded that the use of deadly force was necessary to protect himself. However, as Betts points out, the State fails to cite any authority for the position that an objectively reasonable person could not believe it was necessary to shoot an attacking dog. Under K.S.A. 2020 Supp. 21-5222(b), a person is justified in their use of deadly force if the "person reasonably believes that such use of deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person." In State v. Bowers, 239 Kan. 417, 425, 721 P.2d 268 (1986), superseded on other grounds by statute as stated in State v. Alderson, 299 Kan. 148, 322 P.3d 364 (2014), our Supreme Court concluded that dogs can be considered deadly weapons depending on the manner in which they are used. Hence, in our opinion, the presence of a barking, lunging dog, which Officer Betts believed to be a pit bull, clearly appears to qualify as representing possible "imminent death or great bodily harm to such person" under the ambit of subsection (b). Moreover, the State's position is undercut by its own statements. After acknowledging that Betts' body camera footage showed the dog barking and advancing towards Betts, the State goes on to say that "[w]hile this arguably would have justified the use of force, defendant's decision to use deadly force by firing two gunshots was not reasonable, especially given the dog's proximity to the girl who was ultimately struck by the bullet fragments." The State attempts to categorize this as a routine encounter with a dog, but the record demonstrates that Betts was entering a potentially dangerous situation. Betts was also aware that the reporting party

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State v. Betts said that the dog had been choked prior to the officers arriving at the home, which the district court cited in its ruling. At the hearing on Betts' motion for immunity, Wichita Police Lieutenant Chris Halloran, the former rangemaster with the Wich- ita Police Department, also testified about different scenarios involving animals. He testified that police department policy authorized the use of force in self-defense against animals and that it was not uncommon for an officer to use their weapon against a dog. Halloran also presented training materials used by the Wichita Po- lice Department to assist officers when making the decision to shoot or not shoot when they encounter dogs. Betts also presented stipulations the district court considered that summarized previous officer-involved dog shootings. See Hardy, 305 Kan. at 1012 (holding that district court's "determination of probable cause must be premised on stipulated facts or evidence, on evidence received at a hearing pursuant to the rules of evidence, or both"). Based on the evidence presented, the district court's conclusion that an objectively reasonable person could have concluded that force was necessary to defend oneself against an attacking dog was not error.

The district court did not err when it allowed Betts to argue self- defense

The State also argues, alternatively, that the district court erred by allowing Betts to argue that he was entitled to immunity based on self-defense because this court held that self-defense was not available to a defendant charged with reckless conduct. To support its claim, the State cites to State v. Bradford, 27 Kan. App. 2d 597, 601, 3 P.3d 104 (2000), superseded by statute on other grounds as stated in State v. Cordray, 277 Kan. 43, 82 P.3d 503 (2004). In Bradford, the defendant was charged with reckless aggravated battery under K.S.A. 21-3414(a)(2)(A) (now codified at K.S.A. 2020 Supp. 21-5413[b][2][A]) after he hit his brother's wife with his car. On appeal, Bradford argued, among other things, that the district court erred when it failed to give a requested self-defense instruction. A panel of our court found that

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State v. Betts the district court did not err with respect to the requested instruction because "the defense of self-defense is not available against a charge of reckless conduct." 27 Kan. App. 2d at 602. However, the State and Betts acknowledge the opinion of a different panel of our court in State v. Wall, No. 99,108, 2009 WL 248099, at *3-4 (Kan. App. 2009) (unpublished opinion). There, Wall was charged with reckless aggravated battery under K.S.A. 21-3414(a)(2)(A) (now codified at K.S.A. 2020 Supp. 21- 5413[b][2][A]) after fracturing the victim's elbow with a pool stick during an altercation at a bar. On appeal, Wall argued that the district court erred when it did not allow him to present evidence supporting self-defense. The Wall court acknowledged Bradford but questioned its ap- plicability to the case because, to obtain a conviction for reckless aggravated battery, the State had to prove "that the defendant realized the imminence of danger to another person, and unjustifiably disregarded that danger. The requirement that the defendant act unjustifiably would seem, at least in some cases, to permit evidence of self-defense or other justification for the defendant's conscious disregard of danger to another person." 2009 WL 248099, at *4. However, the panel did not explicitly resolve the issue because the district court had allowed Wall to proffer evidence of self-defense despite its indication that self-defense was inadmissible against a charge of reckless aggravated battery. 2009 WL 248099, at *4. In a more recent decision, State v. Edwards, No. 118,626, 2019 WL 1575717 (Kan. App.) (unpublished opinion), rev. denied 310 Kan. 1065 (2019), the court discussed the rule pronounced in Bradford. There, Edwards was charged with knowing aggravated battery after he kicked the victim and broke her nose and orbital bone. During trial, Edwards asked the district court to give jury instructions about lesser included offenses, which it did, and the jury later convicted Edwards of reckless aggravated battery. On appeal, Edwards argued the district court erred by not instructing the jury on self-defense. The Edwards panel first concluded that there was not sufficient evidence to support a self-defense instruction. But even if it

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State v. Betts assumed, for purposes of argument, that there was enough evidence to support a self-defense instruction, the court concluded any such error would have been harmless based on the holding in Bradford. Edwards, 2019 WL 1575717, at *2-3. The court commented that "[w]hile there have been some minor changes in the Kansas statutes about self-defense and defining reckless conduct since Bradford was decided, the basic concepts remain the same." Edwards, 2019 WL 1575717, at *3. This court concluded by saying that "Bradford continues to accurately state Kansas law on this point." Edwards, 2019 WL 1575717, at *3. In our case, the district court acknowledged precedent from Edwards but ruled that a claim of self-defense can be asserted against a charge of criminal recklessness. But the district court stated that its ruling on the issue "of whether self-defense can be asserted against a criminal charge alleging reckless behavior may have been unnecessary and beside the point based upon the plain language of K.S.A. 21-5231" because the statue confers true immunity. The district court went on to explain that self-defense and immunity are distinct concepts, and the immunity statute "grants immunity from criminal prosecution whether the State claims intentional, knowing, or reckless behavior." Betts argues the State has waived this argument because the State failed to adequately brief and argue the point on appeal. Al- ternatively, Betts contends that the State's claim "that statutory immunity is unavailable based on a prosecutor's selection of a particular criminal charge truly puts the cart before the horse." Betts argues that K.S.A. 2020 Supp. 21-5231 does not discuss culpable mental states, and, if a person's use of force is justified under K.S.A. 2020 Supp. 21-5222, they are immune from all criminal prosecution for their use of force, regardless of the specific criminal charge. Both Betts and the district court rely in part on our Supreme Court's decision in Hardy, 305 Kan. 1001, to come to their conclusions. There, our Supreme Court distinguished between self- defense and immunity, stating that "'[s]elf-defense and immunity are clearly distinct concepts. If immunity were the same as self- defense, there would have been no need to adopt a specific immunity statute because K.S.A. 2014 Supp. 21-5222 would have sufficed.'" 305 Kan. at 1009.

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State v. Betts

Our Supreme Court in Hardy distinguished self-defense and immunity in procedural terms. After recognizing that the two were distinct concepts, our Supreme Court went on to say: "'Perhaps most importantly, because K.S.A. 2014 Supp. 21-5231 grants immunity from arrest and prosecution rather than a mere defense to liability, "it is effectively lost if a case is erroneously permitted to go to trial."'" 305 Kan. at 1009. Later, describing the correct procedure for evaluating a claim of immunity, our Supreme Court said that true immunity "carries with it the necessity of a procedural gatekeeping function, typically exercised by a detached magistrate, who will prevent certain cases from ever getting to a trial and a jury." 305 Kan. at 1010. But the quoted portions from Hardy did not directly address whether a defendant could claim self-defense to justify their use of force when self-defense is otherwise unavailable to them as a defense. There are no Kansas appellate cases which are directly on point to tell us whether a defendant charged with reckless aggravated battery, as Betts was, can claim self- defense to support an immunity claim under K.S.A. 2020 Supp. 21-5231. But we think the Wall court's approach makes the most sense. Wall noted that the crime of reckless aggravated battery required the State to prove that the defendant realized the imminence of danger and then unjustifiably disregarded that danger. 2009 WL 248099, at *4. We agree with the Wall panel, and the district court in our case, that whether a defendant acted unjustifiably should permit evidence of self-defense or other justification for the defendant's conscious disregard of danger to a person, including danger to the defendant themself. Again, the immunity statute states, in part, that "[a] person who uses force which . . . is justified pursuant to K.S.A. 2020 Supp. 21-5222 . . . and amendments thereto, is immune from criminal prosecution and civil action for the use of such force." (Em- phasis added.) K.S.A. 2020 Supp. 21-5231(a). Thus, to qualify for immunity under K.S.A. 2020 Supp. 21-5231, a person must have the ability to claim self-defense under K.S.A. 2020 Supp. 21- 5222. The key question, then, is whether the use of force used by the immunity-seeker is justified or unjustified. To put blinders on

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State v. Betts the district court in making this determination based upon an Ed- wards-like rule that a suspect is not entitled to a self-defense instruction when charged with reckless aggravated battery seems to us incompatible with the purpose of the immunity statute. To this extent we agree with the district court that the immunity statute can be invoked whether the State charges intentional, knowing, or reckless behavior. Part of the difficulty in deciding the case is that the State relies on distinct, yet conflicting, arguments regarding Betts' use of force. First, the State argues that Betts is not entitled to claim self- defense because he was charged with reckless conduct. Then, it seemingly agrees that the use of force was justified but argues that the use of deadly force was unreasonable. But someone is only criminally liable for excessive force if self-defense is first found to exist. See Bradford, 27 Kan. App. 2d at 601. At the least, our answer is that the district court, at an immunity hearing under K.S.A. 2020 Supp. 21-5231, must carefully consider evidence of self-defense to determine if the force was or was not justifiable. If it was not, then the State should be able to defeat the motion. If it was justifiable, the immunity motion may have merit. But only by considering the self-defense evidence will the district court get the full picture. In sum, we are satisfied that the district court here applied the proper legal tests to determine the merits of Betts' immunity motion. We also concur that the immunity statute, K.S.A. 2020 Supp. 21-5231, permits a district court to consider a defendant's claims of self-defense regardless of whether the State has charged conduct that is intentional, knowing, or reckless. After applying the correct legal test to the undisputed facts, the district court determined that Officer Betts was justified in the use of deadly force as a self-defense measure to protect himself from imminent great bodily harm represented by a barking, lunging dog he believed to be a pit bull. Under the circumstances, we can find no error in the district court's ruling.

Affirmed.

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McLean v. National Union Fire Ins. Co.

___

No. 122,701

ROGER W. MCLEAN, in His Capacity as the Special Administra- tor of the Estate of Roger G. Yarbro Sr., and Clyde David Yabro, Appellants/Cross-appellees, v. NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH, P.A., Appellee/Cross-appellant.

___

SYLLABUS BY THE COURT

1. INSURANCE—Purpose of K.S.A. 40-284—Mandate of Uninsured and Underinsured Motorist Coverage in Kansas. The overall purpose of K.S.A. 40-284, the statute mandating uninsured and underinsured motorist coverage in all automobile policies, is to fill a gap in motor vehicle financial responsibility and compulsory insurance legislation. The coverage is intended to compensate innocent persons who are damaged through the wrongful conduct of a motorist who, because they are uninsured or underinsured and not financially responsible, cannot be made to respond in damages.

2. MOTOR VEHICLES—Liberal Construction of K.S.A. 40-284 to Provide Broad Protection to Insured. K.S.A. 40-284 is remedial. It should be liberally construed to provide broad protection to the insured against all damages resulting from bodily injuries sustained by the insured that are caused by an automobile accident where those damages are caused by the acts of an uninsured or underinsured motorist. The insurance policy containing the coverage is controlling only to the extent it does not conflict with or attempt to diminish or omit statutorily mandated coverage.

3. SAME—K.S.A. 40-284 Requirement of Uninsured Motorist Coverage Equal to Liability Coverage of Policy. Kansas law requires that underinsured motorist coverage in an automobile policy must have coverage limits equal to the liability coverage of the policy. K.S.A. 40-284(b).

4. SAME—Insured's Right to Reject in Writing the Uninsured and Underin- sured Motorist Coverages Required by Statute—Requirements. The named insured has the right to reject, in writing, the uninsured and underinsured motorist coverages required by subsections (a) and (b) which exceeds the Kansas minimum limit of $25,000. Any attempt to reject uninsured coverage in excess of the statutory minimum must be (1) in writing, as required by K.S.A. 40-284(c), and (2) the product of an affirmative, unequivocal act specifying the insured's rejection of excess coverage.

5. INSURANCE--Ambiguous Terms in Policy Construed against Insurance Company—Liberal Construction in Favor of Insured. When the terms of an

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McLean v. National Union Fire Ins. Co.

insurance policy are ambiguous, the ambiguity is construed against the insurance company. Because the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language. Otherwise, the policy will be liberally construed in favor of the insured. The test is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean.

6. SAME—Insured is Required to Notify Insurer of Tentative Settlement with Uninsured Tortfeasor. If a tentative agreement to settle for liability limits has been reached with an underinsured tortfeasor, written notice must be given by certified mail to the underinsured motorist coverage insurer by its insured. The underinsured motorist coverage insurer then has 60 days to substitute its payment to the insured for the tentative settlement amount.

Appeal from Wyandotte District Court; CONSTANCE M. ALVEY, judge. Opinion filed June 18, 2021. Reversed and remanded with directions.

John G. O'Connor, of Robb, Taylor & O'Connor, of Kansas City, for appellants/cross-appellees.

J. Philip Davidson and Paul J. Skolaut, of Hinkle Law Firm LLC, of Wich- ita, for appellee/cross-appellant.

Before ARNOLD-BURGER, C.J., HILL, J., and MCANANY, S.J.

HILL, J.: This lawsuit seeks underinsured motorist benefits from an employer's automobile insurance carrier. The insurer sought summary judgment on two grounds. The court granted summary judgment on one theory and denied the claimants any coverage. At the same time, the court denied judgment to the insurance company on the second theory. Both sides appeal. Our review leads us to hold that the court incorrectly granted summary judgment to the insurance carrier on the first theory and incorrectly denied summary judgment to the insurance carrier on the second. Thus, we must reverse both rulings. The claimants win one battle but lose the war.

A bus driver was injured in a collision.

Roger G. Yarbro Sr. was driving a school bus in 2011 for his employer, FirstGroup America, Inc., when the bus was struck by a vehicle driven by Christopher Hernandez. FirstGroup was insured by National Union Fire Insurance Company of Pittsburgh, P.A. The insurance policy had a liability limit of $5,000,000. But an insurance adjuster sent a letter to Yarbro's counsel advising that

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McLean v. National Union Fire Ins. Co. the uninsured motorist coverage under the policy was limited to the Kansas minimum limit of $25,000, which would be "equal or less th[a]n" Hernandez' policy limit. Without telling National Un- ion, Yarbro settled his personal injury claim against Hernandez for Hernandez' policy limit of $100,000. Yarbro died in 2015. After his death, the administrator of Yar- bro's estate and Clyde David Yarbro, an heir, sued National Un- ion, for underinsured motorist benefits. They lost. Two of the district court's rulings are the subject of this appeal and cross-appeal. Yarbro and the Estate appeal the court's grant of summary judgment to National Union based on its ruling that FirstGroup had waived underinsured motorist coverage in writing. At the same time, the court denied summary judgment to National Union on a theory that Yarbro had forfeited any claim for underinsured motorist benefits by failing to notify National Union of a tentative settlement with the tortfeasor, Hernandez, as required by law. National Union appeals that ruling in a cross-appeal. We first review some fundamental principles of automobile insurance law to provide a context for our analysis and ruling.

Kansas law requires all automobile insurance policies to have certain provisions.

When the Legislature embraced comparative fault principles, a negligent tortfeasor would be financially responsible only for the damages he or she had caused—and no more. And when it made this change, it required all motor vehicles to be covered by liability insurance. In other words, Kansas has compulsory automobile insurance. All policies were, by law, required to have a minimum coverage amount of $25,000 that of course could be higher as the insured and insurer agreed. The law also required other types of benefits and coverages to be provided in all policies, which we will not review as they are not pertinent to our analysis. One mandatory provision, however, is pertinent. Recognizing reality, the law in 1968 required all motor vehicle policies to provide uninsured motorist coverage with coverage limits equal to the limits of the liability coverage under the policy. K.S.A. 40-284(a). The Legislature foresaw that perhaps not everybody driving on

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McLean v. National Union Fire Ins. Co. our roads would comply with this law requiring insurance, so a driver's own policy could provide some financial protection for the driver. A few years later, in 1981, the Legislature required underinsured motorist coverage to also be included in all policies. Like uninsured coverage, underinsured coverage limits were to equal the limits of liability provided by such uninsured motorist coverage to the extent such coverage exceeds the limits of the bodily injury coverage carried by the owner or operator of the other motor vehicle. K.S.A. 40-284(b). The two policy provisions—uninsured and underinsured— may be cousins, but they are not identical. Over the years, caselaw has made manifest certain principles about these two required coverages. The overall purpose of K.S.A. 40-284 was to fill a gap in motor vehicle financial responsibility and compulsory insurance legislation. The coverage is intended to compensate innocent persons who are damaged through the wrongful conduct of a motorist who, because they are uninsured or underinsured and not financially responsible, cannot be made to respond in damages. The statute is remedial. It should be liberally construed to provide broad protection to the insured against all damages resulting from bodily injuries sustained by the insured that are caused by an automobile accident where those damages are caused by the acts of an uninsured or underinsured motorist. O'Donoghue v. Farm Bureau Mut. Ins. Co., 275 Kan. 430, 437, 66 P.3d 822 (2003). The insurance policy is controlling only to the extent it does not conflict with or attempt to diminish or omit statutorily mandated coverage. Hemenway v. Automobile Club Inter-Insurance Exchange, 57 Kan. App. 2d 109, Syl. ¶ 6, 447 P.3d 382 (2019), rev. denied 311 Kan. 1045 (2020). Our Supreme Court has expressed the relationship between subsections (a) and (b) of K.S.A. 40-284 as a syllogism. Under K.S.A. 40-284(a), the policy limits of an uninsured motorist provision must be equal to the liability coverage in the insurance policy. Under K.S.A. 40-284(b), uninsured motorist coverage must include an underinsured motorist provision with coverage limits equal to the uninsured provision. Kansas law thus requires that underinsured motorist coverage in an automobile policy must

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McLean v. National Union Fire Ins. Co. have coverage limits equal to the liability coverage of the policy. Mitchell v. Liberty Mut. Ins. Co., 265 Kan. 556, 559, 961 P.2d 1235 (1998). We find one case significant. In McTaggart v. Liberty Mut. Ins., 267 Kan. 641, 651, 983 P.2d 853 (1999), the court noted that while "the two coverages are separate, the statute treats the underinsured motorist coverage as a subcategory of uninsured motorist coverage 'include[d]' in the uninsured motorist coverage." But the rejection form the court approved in that case did specifically in- form the insured that "underinsured" motorist coverage was being rejected. The form stated: "'I have been given the opportunity to purchase Uninsured Motorists Insurance (including Underinsured Motorists Protection) equal to my limits of liability of bodily injury or death, and instead I select lower limits of . . . .'" 267 Kan. at 648. The court held the language used in the form was "sufficiently clear in specifying that the higher limit for underinsured motorist coverage, not just uninsured motorist coverage, is being rejected." 267 Kan. at 651. To us, this holding implies that a rejection form which does not reject the higher limit for underinsured motorist coverage is not a valid rejection of that higher limit for such coverage. The McTaggart court did not face the facts presented here, where the term "underinsured" does not appear on the rejection form. We have one final note about these two coverages. The named insured has the right to reject, in writing, the uninsured and underinsured motorist coverages required by subsections (a) and (b) which exceeds the Kansas minimum limit of $25,000. See K.S.A. 40-284(c). In other words, the law requires coverage in the amount of the liability coverage on the policy, but an insured can choose only the statutory minimum amount if they wish. This brings us to the first issue—Did the employer, FirstGroup, validly reject underinsured coverage under the facts here? When it granted summary judgment, the district court ruled that FirstGroup had rejected the higher coverage. Summary judgment is appropriate when the record shows no genuine issue exists about any material fact and that the moving party is entitled to judgment as a matter of law. Appellate review of the legal effect of undisputed facts is de novo. GFTLenexa, LLC v. City of Lenexa,

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McLean v. National Union Fire Ins. Co.

310 Kan. 976, 981-82, 453 P.3d 304 (2019). Here, the facts are undisputed. Yarbro and the Estate do not dispute that FirstGroup executed a valid written rejection of "uninsured" motorist coverage in excess of $25,000. But they argue that there was no such written rejection of "underinsured" motorist coverage because underinsured coverage is not mentioned in the rejection form. Thus, in their view, the policy contains underinsured coverage equal to the liability limit of $5,000,000. National Union contends that since the definition of uninsured motorist coverage in its policy included underinsured motorist coverage, that its rejection form meets the requirements of K.S.A. 40-284(c), and that its rejection form did not have to include the term "underinsured" because Kansas law treats underinsured motorist coverage as a subcategory of uninsured motorist coverage.

Why the district court was wrong on the first issue.

We hold the district court misinterpreted both the insurance policy and the rejection form signed by FirstGroup. We find no unequivocal rejection of underinsured limits less than the liability limits of the policy with National Union in this record. In fact, the rejection form did not even mention underinsured motorist coverage. Interpretation of an insurance policy is a question of law over which appellate courts have unlimited review. When the terms of an insurance policy are ambiguous, the ambiguity is construed against the insurance company. Because the insurer prepares its own contracts, it has a duty to make the meaning clear. If the insurer intends to restrict or limit coverage under the policy, it must use clear and unambiguous language. Otherwise, the policy will be liberally construed in favor of the insured. The test is not what the insurer intends the language to mean, but what a reasonably prudent insured would understand the language to mean. Bussman v. Safeco Ins. Co. of Am., 298 Kan. 700, 707, 317 P.3d 70 (2014). Kansas courts liberally construe K.S.A. 40-284 to protect the insured's right to uninsured motorist coverage and strictly construe policy provisions trying to limit such coverage. Escue v. Allstate Fire & Cas. Ins. Co., No. 19-1271-EFM, 2020 WL 7042598, at *3 (D. Kan. 2020). Any attempt to reject uninsured coverage in

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McLean v. National Union Fire Ins. Co. excess of the statutory minimum must be (1) in writing, as required by K.S.A. 40-284(c), and (2) the product of an affirmative, unequivocal act specifying the insured's rejection of excess coverage. Bishop v. Empire Fire & Marine Ins. Co., 47 F. Supp. 2d 1300, 1306 (D. Kan. 1999). Because the rejection provisions of K.S.A. 40-284(c) detract from the public policy goals of protecting innocent victims, the rejection provisions are narrowly and strictly construed. Even so, strict construction should not be invoked to circumvent application of an election under K.S.A. 40-284(c) that is apparent from the four corners of the insurance policy and the rejection form. Ochs v. Federated Mut. Ins. Co., 43 Kan. App. 2d 127, 133-34, 221 P.3d 622 (2010). The terms of the signed rejection form be- came part of the insurance contract between the parties. Where the insurance contract is not ambiguous, courts do not make another contract for the parties but will enforce the contract as written. 43 Kan. App. 2d at 137.

Some policy details are important to our reasoning.

In the insurance agreement between National Union and First- Group, the "SCHEDULE OF COVERAGES" lists 12 different types of coverage. Liability coverage is at the top with a $5,000,000 coverage limit. Uninsured motorist coverage and underinsured motorist coverage are separately listed. Under the entry for underinsured motorist coverage there is a note in parenthesis that states, "(When not included in Uninsured Motorists Coverage)." The limits for uninsured motorist coverage are "SEPARATELY STATED IN EACH UNINSURED MOTORISTS ENDORSEMENT." And the limits for underinsured motorist coverage are "SEPARATELY STATED IN EACH UNDERINSURED MOTORISTS ENDORSEMENT." We find no underinsured motorist endorsement included in this policy. As part of the policy, there is another document titled, "KANSAS SPLIT UNINSURED MOTORISTS COVERAGE LIMITS." This document states that it modifies the "UNINSURED MOTORISTS COVERAGE ENDORSEMENT." It lists the coverage limits for bodily injury as $25,000 for each person and $50,000 for each accident. Within the definition section of the "KANSAS UNINSURED

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McLean v. National Union Fire Ins. Co.

MOTORISTS COVERAGE" endorsement, an "Uninsured motor vehicle" means a land motor vehicle or trailer:

"a. For which no liability bond or policy at the time of an 'accident' provides at least the amounts required by Kansas law, or "b. That is an underinsured motor vehicle. An underinsured motor vehicle is a land motor vehicle or 'trailer' for which the sum of all liability bonds or policies at the time of an 'accident' provides at least the amounts required by Kansas law, but their limits are less than the limit of this insurance, or "c. For which an insuring or bonding company denies coverage or is or becomes insolvent, or "d. For which neither the driver nor owner can be identified." (Emphasis added.)

Finally, the policy contains a document titled, "KANSAS NOTICE UNINSURED MOTORISTS COVERAGE" (the rejection form) that states:

"Kansas law requires us to provide Uninsured Motorists Coverage in your policy with a coverage limit equal to your policy's bodily injury limit of liability. You are not required to accept Uninsured Motorists Coverage at this coverage limit. You may select a lower coverage limit, but the coverage limit you select may not be lower than Kansas' minimum requirement, which is split limits of $25,000 each person and (subject to the each person limit) $50,000 each accident. This coverage limit may be selected as a combined single limit of $50,000 each accident."

FirstGroup selected "Uninsured Motorists Coverage with a coverage limit equal to Kansas' minimum requirement" split limits. This rejection form does not mention underinsured motorist coverage.

From the four corners of this insurance contract, it is not apparent when underinsured motorist coverage is included within the uninsured motorist coverage and when it is not. On the schedule of coverages, uninsured motorist coverage and underinsured motorist coverage are separate line items. The schedule of coverages shows there is supposed to be a separate underinsured motorist coverage endorsement that provides the coverage limits for underinsured coverage, but one was apparently not provided to First- Group. The schedule shows that underinsured coverage may be included within uninsured coverage for some purposes, but does not specify for what purposes. A close reading of the Kansas uninsured coverage endorsement reveals that an uninsured motor vehicle includes an underinsured motor vehicle for purposes of that

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McLean v. National Union Fire Ins. Co. document. But there is no indication on the rejection form that underinsured motorist coverage is included under uninsured motorist coverage for purposes of the rejection. It is ambiguous. This ambiguity must be construed against National Union. If National Union intended for underinsured coverage to be included on the rejection form, it could have so stated. FirstGroup did not affirmatively and unequivocally reject in writing excess underinsured coverage as required by K.S.A. 40-284(c). Finally, we are unmoved by the parties' argument about whether certain rejection forms were approved by the Department of Insurance. We no longer apply the doctrine of operative construction. We give no deference to administrative agencies' inter- pretations of their own implementing statutes when we are construing such statutes. The doctrine is now invalid. Golden Rule Ins. Co. v. Tomlinson, 300 Kan. 944, 955, 335 P.3d 1178 (2014). Thus, the district court erred when it granted summary judgment to National Union on this point. We must reverse and set aside that summary judgment. We turn now to the cross-appeal.

The cross-appeal has merit.

In its cross-appeal, National Union contends that Yarbro had to provide notice to National Union of any tentative settlement under K.S.A. 40-284(f). When he failed to do so, Yarbro waived any right to underinsured motorist benefits under the policy. In response, Yarbro and the Estate contend that when National Union denied the existence of any underinsured motorist coverage in a letter dated January 2012, the insurer waived its right to receive notice under K.S.A. 40-284(f). Thus, National Union should be estopped from raising this argument. To solve this problem, we must begin with the statute which gives an insurer the right to pay the claim instead of the tortfeasor and then pursue a subrogation claim against the tortfeasor for what it has paid. "If a tentative agreement to settle for liability limits has been reached with an underinsured tortfeasor, written notice must be given by certified mail to the underinsured motorist coverage insurer by its insured." K.S.A. 40-284(f). The underinsured motorist

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McLean v. National Union Fire Ins. Co. coverage insurer then has 60 days to substitute its payment to the insured for the tentative settlement amount. If the underinsured motorist coverage insurer substitutes payment, the insurer is then subrogated to the insured's right of recovery to the extent of such payment and any settlement under the underinsured motorist coverage. If the insurer does not substitute payment within 60 days, the insurer has no right of subrogation for any amount paid under the underinsured motorist coverage. K.S.A. 40-284(f). To sum up, this law requires notice of tentative settlement, a timely substitute payment by the underinsured motorist coverage carrier, and then subrogation rights are preserved. An underinsured motorist insurance carrier that pays on a claim has the right to maintain a subrogation action against the party responsible for the motor vehicle collision. But the insurer's right to proceed against the responsible party stems from the rights of the injured insured. Thus, if the insured settles with the responsible party and executes a release of liability in favor of the responsible party, the insurer's subrogation right is impaired. The statute permits the insured to negotiate a speedy settlement while preserving the underinsured motorist insurer's subrogation right if it tenders substitute payment to the insured for the settlement amount. Anderson v. Employers Mutual Casualty Ins. Co., 27 Kan. App. 2d 623, 627-28, 6 P.3d 918 (2000). A case that offers guidance on this issue is Dalke v. Allstate Ins. Co., 23 Kan. App. 2d 742, Syl. ¶ 4, 935 P.2d 1067 (1997). The Dalke panel held that an insured who settles his or her claim for injuries against an underinsured motorist and who releases that tortfeasor from further liability, all without notice to such insured's insurance carrier as required by K.S.A. 40-284(f), forfeits the right to recover under his or her policy's underinsured motorist provision. The court noted that the language of K.S.A. 40-284(f) contained no specific consequence to the insured for noncompliance with the notification requirement. But the court considered the mandatory language of K.S.A. 40-284(f), that Dalke's noncompliance had led to the loss of Allstate's subrogation rights, and public policy. 23 Kan. App. 2d at 747-49; see also Owens v. Continental Ins. Co., No. 99-3201, 2000 WL 703133, at *4-6 (10th Cir. 2000) (unpublished opinion) (following Dalke).

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Dalke is horizontal precedent and not binding authority upon this panel. We have some reservations about the holding. The statute does not say that the insured forfeits the right to recover underinsured motorist benefits by failing to provide notice to the carrier—the panel did. On the other hand, the statute also does not say that an insurer waives the right to notice under K.S.A. 40- 284(f) by denying coverage as Yarbro and the Estate contend. In a different context, a panel of this court held that failure to comply with K.S.A. 40-284(f) and K.S.A. 40-287 precluded a remedy in equity. In Farm Bureau Mut. Ins. Co. v. Progressive Direct Ins. Co., 40 Kan. App. 2d 123, 130-31, 190 P.3d 989 (2008), an underinsured motorist insurance carrier substituted payment after receiving notice of tentative settlement in accordance with K.S.A. 40-284(f). But the underinsured insurance carrier failed to sue before the statute of limitations ran. This court held the insurance carrier could not invoke equity because it failed to seize the chance to bring a timely tort action. "'Equity aids the vigilant and not those who slumber on their rights.'" 40 Kan. App. 2d at 131. The failure to comply with statutory requirements when the insurance carrier could have done so precluded a remedy in equity. Both cases recognize that K.S.A. 40-284(f) creates and preserves an insurer's right to subrogation and promotes the public policy of making the tortfeasor responsible for the damages he or she has caused. We cannot ignore the importance of these policies and follow the Dalke holding.

Where the court got it wrong on this issue.

After reviewing the facts, the caselaw, and the statute, we hold the January 2012 letter was not a waiver of notice of settlement by National Union. Waiver in contract law implies that a party has voluntarily and intentionally given up a known right or has done some positive act inconsistent with the contractual right. Once it has been established that a right has been waived, the party possessing the contractual right is precluded from asserting it in a court of law. Equitable estoppel is the effect of the voluntary conduct through which the party is precluded, both at law and in equity,

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McLean v. National Union Fire Ins. Co. from asserting a right against another person relying on such conduct. A party asserting equitable estoppel must show that another party, by acts, representations, admissions, or silence when it had a duty to speak, induced it to believe certain facts existed. The party must also show it rightfully relied and acted on such belief and would now be prejudiced if the other party could deny the existence of such facts. Steckline Communications, Inc. v. Journal Broadcast Group of Kansas, Inc., 305 Kan. 761, 769, 388 P.3d 84 (2017). Waiver and equitable estoppel are not appropriately invoked here. Yarbro's counsel sent a letter requesting that the insurance adjusters open a file for underinsured motorist benefits in this case. The letter correctly noted that Kansas law required any policy of motor vehicle liability insurance to include underinsured motorist coverage with limits equal to the liability limits. See K.S.A. 40-284(b). The insurance adjuster responded that First- Group had chosen "uninsured" motorist coverage equal to the Kansas minimum limits and instructed Yarbro's attorney to advise him "[s]hould you believe your client is entitled to underinsured benefits." The adjuster advised the attorney to contact him if more information was needed. The letter in part read:

"I am the adjuster assigned to handle your inquiry of the potential underinsured motorist claim for Rodger Yarbro the First Student driver. For your record I have attached a copy of the First Groups declaration page and the Kansas Uninsured Motorists coverage in effect at the time of this accident, effective dates of 12/31/10 to 12/31/11. The selection that is chosen for uninsured motorist coverage is limited equal to Kansas minimum required limits which would be equal or less th[a]n the Tortfeasors policy limits. Should you have any further questions or require any addition[al] information please contact me.

"Should you believe your client is entitled to underinsured benefits please advise me accordingly. Provide me with a current update in regards to your client's diagnoses and prognoses of injuries so we may update our file. Have the attached HIPAA medical authorization form completed and return along with the names addresses and phone numbers of the medical providers who are treating your client for any injuries resulting from this accident."

A copy of the signed rejection form was included with this letter.

The letter does not show National Union intended to give up its right to notice of a tentative settlement. Rather, the insurance adjuster asked Yarbro's attorney to

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• keep him updated about Yarbro's diagnoses and prognoses of injuries; • complete a HIPAA authorization; • provide contact information for Yarbro's medical providers; • provide copies of medical bills; and notify him if Yarbro still believed he was entitled to underinsured motorist benefits.

It does not appear that National Union was ready to close its file on the case. Rather, the insurance adjuster was ready to open the file as Yarbro had requested. This letter is not inconsistent with National Union's right to notice of a tentative settlement. The insurance adjuster wanted more information on the claim. And assuming the insurance adjuster did deny coverage of underinsured benefits, Yarbro did not have to rely on that statement. The rejection form was included in the correspondence and did not mention underinsured motorist coverage. Yarbro could have sent notice of a tentative settlement to National Union but failed to do so. Under Dalke, Yarbro forfeited his right to underinsured motorist benefits.

We summarize our holdings.

On the appeal, we set aside the district court's grant of summary judgment to National Union where the court found that First- Group had rejected in writing excess underinsured coverage as required by K.S.A. 40-284(c). On the cross-appeal, we reverse the ruling of the district court denying summary judgment to National Union.

We remand this case to the district court with directions to enter summary judgment in favor of National Union because Yar- bro failed to notify the insurance carrier of the tentative settlement he had reached with Hernandez.

Reversed and remanded with directions.

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In re A.W.

___

No. 123,322

In the Interest of A.W., A Minor Child.

___

SYLLABUS BY THE COURT

1. JURISDICTION—Subject Matter Jurisdiction—Issue May be Raised at Any Time. A party cannot waive an objection to subject matter jurisdiction and can raise it at any time, even for the first time on appeal.

2. SAME—District Courts have Jurisdiction of All Civil and Criminal Mat- ters. Kansas district courts have general jurisdiction of all civil and criminal matters, unless otherwise provided by law. As a general matter, district courts have the subject-matter jurisdiction to consider disputes that a court might address unless some other statute limits that authority.

3. UNIFORM CHILD CUSTODY JURISDICTION AND ENFORCEMENT ACT—Limits on Court's Subject Matter Jurisdiction. The Uniform Child- Custody Jurisdiction and Enforcement Act (UCCJEA), K.S.A. 2020 Supp. 23-37,101 et seq., limits a Kansas court's subject matter jurisdiction. The UCCJEA's purpose is to avoid jurisdictional disputes between courts of different states over child custody issues. It does so with rules that generally limit jurisdiction over child custody matters in any particular family to one state at a time.

4. SAME—Home State Makes Initial Custody Decision—Exclusive Jurisdic- tion Retained by State. Vital to the UCCJEA's method of keeping order between the states are two provisions. First, an initial custody decision must be made by the child's home state. Second, once that initial custody determination has been made, the state making it generally retains exclusive jurisdiction over later custody issues until an event listed in the UCCJEA occurs.

5. SAME—Courts Must Ensure Provisions are Satisfied Before Assuming Ju- risdiction in CINC Case. It is erroneous for a district court to assume subject matter jurisdiction over a child in need of care case with interstate connections without ensuring the UCCJEA's provisions are satisfied.

6. SAME—Court's Jurisdiction to Make Child Custody Determination Only in Home State—Definition of Home State. Unless otherwise provided by the UCCJEA, a court has the jurisdiction to make an initial child custody determination only if the state is the home state of the child on the date of the proceeding's commencement. "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive

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months immediately before the commencement of a child-custody proceeding. A period of temporary absence of any of the mentioned persons is part of the period.

7. SAME—Determination of Child's Home State—Objective Question. The determination of a child's home state is an objective question. The UCCJEA's language "state in which a child lived" does not suggest any concepts of legal residence, which is governed by an intention to stay or to return to a location and incorporates physical presence, not legal residence.

8. SAME—Jurisdiction Declined by Court Only of Home State. For a home state to decline jurisdiction under the UCCJEA, the plain language of the statute requires a court, not a state agency, of the home state to decline jurisdiction.

9. SAME—Court May Decline Jurisdiction under Act.. K.S.A. 2020 Supp. 23-37,208(a) directs a district court to decline jurisdiction when "a person seeking to invoke jurisdiction engaged in unjustifiable conduct." By its plain language, only the person seeking to invoke the jurisdiction of the court may engage in unjustifiable conduct so as to prohibit the court's assumption of jurisdiction under the UCCJEA.

10. SAME—Emergency Jurisdiction under the Act—Court Enters Temporary Order for Protection of Child. Emergency jurisdiction under the UCCJEA allows a court to enter temporary orders to protect a child—but absent child abandonment, the situation must be an emergency. An emergency is a serious situation or occurrence that happens unexpectedly and demands immediate action. The fact that a child may be a child in need of care is an insufficient basis for emergency jurisdiction.

11. SAME—Temporary Emergency Jurisdiction—Requirements. A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse.

12. SAME—Emergency Order by Court—Applicable Limits. If a previous child custody determination or proceeding exists, any emergency order must specify the period the court considers adequate to allow the person seeking an order to obtain such order from a court of a state having jurisdiction. If no child custody proceeding has been commenced in a court of a state having jurisdiction, an emergency child custody order remains in effect until an order is obtained from a court of a state having jurisdiction. If a proceeding is not commenced, then any emergency order entered becomes final.

13. SAME—Temporary Emergency Jurisdiction—Limits on District Courts' Authority. If an emergency as defined by the UCCJEA exists, a district court

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In re A.W.

is limited by the UCCJEA to only exercising temporary emergency jurisdiction. Such emergency jurisdiction limits the district court to issuing temporary orders to protect the child until the state with home state jurisdiction can act. Such authority does not extend to issuing more permanent orders such as a child in need of care adjudication.

14. SAME—Emergency Jurisdiction under the Act—Orders Become Final if Home State Declines Jurisdiction. Emergency jurisdiction under the UCCJEA indicates that any temporary emergency orders issued become final in the absence of any orders from a home state court. This suggests that temporary emergency jurisdiction can ripen into home state jurisdiction once the home state declines jurisdiction.

Appeal from Johnson District Court; KATHLEEN SLOAN, judge. Opinion filed June 18, 2021. Vacated and remanded with directions.

Richard P. Klein, of Olathe, for appellant natural mother.

Jacob M. Gontesky, assistant district attorney, and Stephen M. Howe, district attorney, for appellee.

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

POWELL, J.: A.W., a minor, and his mother are residents of Missouri. In November 2019, Mother took A.W., then 14 years old, to a hospital in Independence, Missouri, because he was suffering from diabetic ketoacidosis. She subsequently requested that he be transferred to Overland Park Regional Medical Center (OPMC) in Overland Park, Kansas. In March 2020, A.W. was re- admitted to OPMC due to a reoccurrence of his condition. Because of these events and events occurring between these two hospital admissions, an investigation of A.W.'s welfare was initiated by authorities in Kansas, with the assistance of Missouri authorities, and culminated in a child in need of care (CINC) action being filed by the State in the Johnson County District Court. The district court assumed jurisdiction and subsequently adjudicated A.W. to be a CINC. Mother appeals, alleging for the first time the district court did not have jurisdiction under the Uniform Child-Custody Jurisdiction and Enforcement Act (UCCJEA) and that clear and convincing evidence did not support the district court's CINC adjudication. Following a review of the record, we conclude that at the time of the filing of the CINC petition, the district court—at best— could only assume emergency jurisdiction over A.W. because Kansas was not A.W.'s home state; Missouri was. Thus, at the

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In re A.W. time the district court adjudicated A.W. a CINC, it lacked the jurisdiction to issue such an order as emergency jurisdiction only conferred upon the district court the authority to issue temporary orders protecting the safety of the child. We therefore vacate the district court's CINC order and remand with instructions for the district court to contact the appropriate Missouri court to see if it will waive or accept jurisdiction over A.W.

FACTUAL AND PROCEDURAL BACKGROUND

As the issue before us principally concerns subject matter jurisdiction, we recite the relevant facts impacting that question. A.W. was born in 2005 and was 15 years old at the time of the CINC trial. Mother is a single parent of seven children. A.W.'s father is deceased. Mother's employment is akin to a bounty hunter, requiring frequent out-of-state trips to complete tasks assigned to her by the United States Drug Enforcement Agency. According to Mother, the Missouri Department of Family Ser- vices (DFS) took custody of her children in 2011, but the children were returned to her care within a few months. After that case was closed, Mother moved her family to Texas. During a visit to Moth- er's grandfather in Missouri in November 2017, A.W.—then age 12—was first hospitalized with diabetic ketoacidosis and diagnosed with type 1 diabetes. Although the record is not clear, Mother and her family frequently stayed at her grandfather's house beginning at this point in time. The next year involved few health complications—a time Mother described as a honeymoon period. Then, A.W. was hospitalized again in October 2018 at Children's Mercy Hospital in Mis- souri. A.W. was prescribed insulin during this hospital stay. Con- cern arose among the hospital staff after A.W. had missed appointments in February and April following his first hospitalization and twice in November 2018 after his second stay. Regular visits are important for a child suffering multiple occurrences of diabetic ketoacidosis. In early 2019, Mother was attempting to renovate a house in Plattsburg, Missouri, with the intention of moving the house and her family to Texas once she finished. While Mother was renovating the house, A.W. stayed with a family friend, Mark Strobel, at

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In re A.W. a Kansas City, Missouri, apartment. Strobel took A.W. to Children's Mercy in June 2019 when A.W. started "acting funny." A.W. was again admitted for diabetic ketoacidosis. A.W. had high blood sugar, vomiting, and poor breathing. Hospital staff expressed concern over A.W.'s eating habits, noting he looked thin and had only been eating hard-boiled eggs and pickles. Hospital staff struggled to reach Mother during A.W.'s hospital stay. Mother told staff she was temporarily staying with Strobel and was not sure where A.W. would stay when he was discharged. After his discharge, the medical team scheduled follow-up appointments every three months. A.W. came to his appointment in July but did not come to two later appointments and canceled two others. Mother brought A.W. to Centerpoint Medical Center in Independ- ence, Missouri, in November 2019 for diabetic ketoacidosis, where A.W. was observed to have dehydration, high blood sugar, and Kuss- maul respirations (heavy breathing while remaining awake and alert). Mother requested Centerpoint transfer A.W. to OPMC. Mother did not want to return to Children's Mercy because hospital staff contacted Missouri DFS when A.W. was there in June 2019. A.W. was admitted to the intensive care unit at OPMC, where he remained for three days. A.W. was released and ultimately began receiving multiple insulin in- jections each day. In March 2020, because of high blood sugar levels, A.W. was out- fitted with an insulin pump. At around the same time, Mother had given up on renovating the house in Plattsburg and was staying with an 87-year-old retired Army Colonel in his two-bedroom house in In- dependence, Missouri. However, Mother continued to use Strobel's mailing address and his vehicle. A.W. was again admitted to OPMC with diabetic ketoacidosis in April 2020. A.W. remained in the intensive care unit for eight days— first to treat his condition and, later, because the State was seeking court intervention to protect A.W.'s welfare. In the two years before the State filed its CINC petition, A.W. had been hospitalized with diabetic ketoacidosis five times: twice in 2018, twice in 2019, and once in 2020. Christine McAtee, the OPMC social worker, had visited with A.W. in November 2019 and did so again in April 2020. McAtee had concerns about Mother managing A.W.'s condition, his access to insulin, and the family's lack of stable housing. McAtee called Missouri DFS because Mother had a Kansas City, Missouri, address.

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A Missouri DFS child protection services worker, Ashely McCoy, contacted Mother at an apartment in Kansas City, Missouri. Mother appeared surprised McCoy had found her. McCoy informed Mother she needed to see Mother's other children and the apartment to ensure A.W. would be safe if discharged into Mother's care. Mother refused to cooperate absent a court order. Paula McRoy, a child protective specialist with the Kansas Depart- ment for Children and Families, investigated the allegations involving Mother and A.W. McRoy was concerned that A.W. could not explain what his mother did for a living or how he obtained or stored insulin, and that A.W.'s pump was shut off when A.W.'s blood sugar levels were high. Mother refused to work with McRoy without a court order. A meeting was held on April 16, 2020, between hospital social workers, Kansas and Missouri social workers, and Mother. Mother believed A.W.'s pump had calibration issues, and she had concerns about obtaining a sufficient insulin supply. Mother again stated she would only cooperate with a court order. Mother said she was not homeless but was establishing a home in El Paso, Texas. McRoy indicated Missouri would not file a court case because A.W. was in Kansas and provided a letter to Mother indicating the same. Kansas filed a CINC petition on April 17, 2020, and A.W. was placed in foster care. Mother did not visit A.W. once he was in the State's care because she would not sign the necessary visitation paper- work. On August 17, 2020, the district court adjudicated A.W. as a CINC under K.S.A. 2020 Supp. 38-2202(d)(1)-(3) because of his inadequate medical care, his lack of education, and his lack of stable housing. Mother timely appeals.

DID THE DISTRICT COURT HAVE SUBJECT MATTER JURISDICTION UNDER THE UCCJEA?

For the first time, Mother argues on appeal the district court lacked subject matter jurisdiction over A.W. because Missouri was A.W.'s home state. Mother also argues no exception to home state jurisdiction in the UCCJEA applies here to give a Kansas court jurisdiction. The State submits three avenues for us to find the district court had subject matter jurisdiction. First, the State argues Mother did not establish Missouri was A.W.'s home state, and, even if it was, it is no longer.

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Second, even if Missouri was A.W.'s home state, the State argues Kan- sas has jurisdiction because Mother engaged in unjustifiable conduct by bringing A.W. to a Kansas hospital for treatment to avoid Missouri child protective services. And third, the State asserts Kansas had emergency jurisdiction because Mother abandoned A.W. and because of the emergency presented by A.W.'s hospitalization for diabetic ketoacidosis.

Standard of Review

The existence of subject matter jurisdiction is a legal question reviewed de novo. In re K.L.B., 56 Kan. App. 2d 429, 436, 431 P.3d 883 (2018).

Analysis

Kansas district courts have general jurisdiction of all civil and criminal matters, unless otherwise provided by law. "As a general matter, then, our district courts have the subject-matter jurisdiction to consider disputes that a court might address unless some other statute limits that authority." In re A.A., 51 Kan. App. 2d 794, 803, 354 P.3d 1205 (2015). A party cannot waive an objection to subject matter jurisdiction and can raise it at any time, even for the first time on appeal. In re K.L.B., 56 Kan. App. 2d at 437; In re A.A., 51 Kan. App. 2d at 805. The UCCJEA is one such limitation on subject matter jurisdiction as both Kansas and Missouri have adopted it. See K.S.A. 2020 Supp. 23-37,101 et seq.; In re A.A., 51 Kan. App. 2d at 804; Mo. Rev. Stat. § 452.700. The UCCJEA's purpose is to avoid jurisdictional disputes between courts of different states over child custody issues. It does so with rules that generally limit jurisdiction over child custody matters in any particular family to one state at a time. In re A.A., 51 Kan. App. 2d at 804. The UCCJEA applies to CINC proceedings. 51 Kan. App. 2d at 806. Vital to the UCCJEA's method of keeping order between the states are two provisions. First, an initial custody decision must be made by the child's home state. See K.S.A. 2020 Supp. 23- 37,201(a). Second, once that initial custody determination has been made, the state making it "generally retains exclusive jurisdiction over later custody issues until an event listed in the

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In re A.W.

UCCJEA . . . occurs." 51 Kan. App. 2d at 804; see K.S.A. 2020 Supp. 23-37,202(a). Here, Mother did not challenge subject matter jurisdiction before the district court and the district court found it had subject matter jurisdiction without addressing the UCCJEA. It is erroneous for a district court to assume subject matter jurisdiction over a CINC case with interstate connections without ensuring the UCCJEA's provisions are satisfied. In re K.L.B., 56 Kan. App. at 439 (quoting In re A.A., 51 Kan App. 2d at 806). Although the district court erred by not addressing the UCCJEA in finding it had subject matter jurisdiction, because subject matter jurisdiction is reviewed de novo, we can still determine if subject matter jurisdiction exists.

A. Home state jurisdiction

Unless otherwise provided, a court has the jurisdiction to make an initial child custody determination only if the state is the home state of the child on the date of the proceeding's commencement. K.S.A. 2020 Supp. 23-37,201(a)(1).

"'Home state' means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child-custody proceeding. . . . A period of temporary absence of any of the mentioned persons is part of the period." K.S.A. 2020 Supp. 23-37,102(8).

Mother and A.W. were living in Missouri in 2011 when Mis- souri took custody of Mother's children. Once the case was closed, Mother moved with her children to Texas. Mother and her children continued to visit her grandfather in Missouri a few times a month, and in June 2019, Mother decided it was easier to stay in Missouri with her children rather than continuing to drive back and forth. Mother was working on fixing up a house she eventually wanted to move back to Texas. In July 2019, after her grandfather died, Mother decided to move back to Texas but was trying to save money before doing so. In April 2020, A.W. was admitted to OPMC with diabetic ketoacidosis. Mother and A.W. were still living in Missouri at this point. The State filed its CINC petition on April 17, 2020.

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In re A.W.

Despite the State's contention, the record demonstrates A.W. and Mother lived in Missouri for over six months before the State filed its petition. That makes Missouri the home state under the UCCJEA. The State tries to overcome this by raising a residency argument and claiming that about six months before the petition Mother was planning on moving the family to Texas. The State also points out that Mother testified she intended to move the family to Texas when the winter was over. Essentially, the State is arguing Missouri is not A.W.'s home state because Mother lacked an intent to remain. The determination of a child's home state is an objective question. In re E.T., No. 111,971, 2015 WL 1125364, at *5 (Kan. App. 2015) (unpublished opinion). The UCCJEA's language "state in which a child lived" does not "'suggest any concepts of legal residence, which is governed by an intention to stay or to return to a location' [and] incorporates 'physical presence, not legal residence.'" 2015 WL 1125364, at *5. Using a parent's subjective intent to remain in a particular state is inconsistent with the UCCJEA's requirements and is not a factor in determining the home state of the child. 2015 WL 1125364, at *5. A.W. lived in Missouri with Mother for over six months before the CINC filing. Mother's desire to move back to Texas does not alter that. Missouri remains A.W.'s home state. Because Missouri is A.W.'s home state, Missouri has jurisdiction over A.W. unless other possible methods for Kansas to obtain jurisdiction listed in K.S.A. 2020 Supp. 23-37,208(a) apply. One of those is Missouri declining jurisdiction. The State argues Mis- souri declined jurisdiction; to support its argument, it points to the Missouri social worker stating Missouri was not opening a case and presenting a letter to Mother informing her of that. Although our research did not reveal a Kansas case addressing whether a letter from a state agency is sufficient to satisfy the requirement under the UCCJEA that the home state decline jurisdiction, the West Virginia Supreme Court has addressed this issue. In In re J.C., 242 W.Va. 165, 832 S.E.2d 91 (2019), law enforcement found J.C. and his mother walking around the streets of a West Virginia town while hitchhiking from Virginia to North Carolina. The mother and J.C. had lived in Virginia for J.C.'s whole life, but

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In re A.W. the mother was seeking to move to North Carolina. The West Vir- ginia authorities took J.C. into custody and contacted Virginia child protective services. Virginia child protective services told the West Virginia authorities that any family incident occurring in West Virginia had to be handled in West Virginia by West Vir- ginian authorities. West Virginia argued Virginia declined jurisdiction through its child protective services agency. The West Vir- ginia Supreme Court disagreed, holding that the UCCJEA expressly required a court of Virginia to decline jurisdiction, not some state agency. The West Virginia Supreme Court determined that "for a circuit court to obtain subject matter jurisdiction of a child whose home state is not West Virginia, . . . a 'court' of the home state of the child must decline to exercise jurisdiction." 242 W.Va. at 173; see also In re Joseph B., No. D065833, 2014 WL 5409006, at *6 (Cal. Ct. App. 2014) (unpublished opinion) (court's contact with law clerk at court in Nevada insufficient to establish that state's declination of jurisdiction). Although not binding, we find the reasoning of the West Vir- ginia Supreme Court to be persuasive. The State argues the district court had jurisdiction under K.S.A. 2020 Supp. 23-37,201(a)(3) because Missouri declined jurisdiction. K.S.A. 2020 Supp. 23- 37,201(a)(3) gives a Kansas court subject matter jurisdiction when "all courts having jurisdiction under paragraph (1) or (2) have declined to exercise jurisdiction on the ground that a court of this state is the more appropriate forum." The plain language of the statute requires a court, not a state agency, of another state to decline jurisdiction. Here, no Missouri court has declined jurisdiction.

B. Unjustifiable conduct

The State also argues the district court could exercise jurisdiction under K.S.A. 2020 Supp. 23-37,208. According to the State, under this provision of the UCCJEA, Mother's act of taking A.W. to Kansas for medical treatment to avoid Missouri social services was unjustifiable conduct and amounted to an acquiescence to Kansas' jurisdiction.

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In re A.W.

K.S.A. 2020 Supp. 23-37,208(a)(1)-(2) states that if a Kansas court has jurisdiction under the UCCJEA "because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless" the par- ents of the child have acquiesced to the jurisdiction or a court of a state otherwise having jurisdiction determines Kansas is a more appropriate forum. The State claims Mother engaged in unjustifiable conduct when she brought A.W. to Kansas for medical treatment because the last time A.W. was in a Missouri hospital for diabetic ketoacidosis, the hospital called child services. The State also asserts Mother acquiesced to Kansas' jurisdiction by taking A.W. to Kan- sas for medical treatment and not objecting to the district court's exercise of jurisdiction when the case was filed. We are unpersuaded by the State's argument for two reasons. First, it ignores the statute's plain language. K.S.A. 2020 Supp. 23- 37,208(a) directs a district court to decline jurisdiction when "a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct." (Emphasis added.) See UCCJEA § 208, comment ("This section applies to those situations where jurisdiction exists because of the unjustified conduct of the person seeking to invoke it."). While Mother may have been attempting to avoid Missouri DFS, there is no evidence she wanted the State of Kansas involved in her children's care. In fact, Mother refused assistance absent a court order. Moreover, it is the State which invoked Kansas' jurisdiction when it filed the CINC petition. Under the statute's plain language, it is the State that must have engaged in unjustifiable conduct. See UCCJEA § 208, comment ("The focus in this section is on the unjustified conduct of the person who invokes the jurisdiction of the court."). Unsurprisingly, the State makes no such claim. Thus, because Mother has never sought a Kansas court's jurisdiction in this matter, whether she engaged in unjustifiable conduct is irrelevant to the issue of subject matter jurisdiction. Second, the State claims Mother acquiesced to Kansas jurisdiction because she brought A.W. to Kansas and did not object to the district court exercising jurisdiction after the CINC petition was filed. But Mother did not bring A.W. to Kansas to invoke Kansas' jurisdiction. Moreover, the State's argument ignores the well-established rule that subject matter jurisdiction cannot be waived and may be challenged at

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In re A.W. any time. In re K.L.B., 56 Kan. App. 2d at 437. While voluntarily bringing a child to a health care facility in Kansas may constitute sufficient grounds for personal jurisdiction, in Kansas, it does not satisfy the UCCJEA's requirements for subject matter jurisdiction. See K.S.A. 2020 Supp. 23-37,201(c) (physical presence or personal jurisdiction over party or child insufficient for subject matter jurisdiction); see generally K.S.A. 2020 Supp. 60-308(b)(1) (listing acts in Kansas that constitute submission to state's jurisdiction).

C. Emergency jurisdiction

The State also asserts the district court had emergency jurisdiction over A.W. because his hospitalization for his diabetes presented an emergency and because Mother "effectively abandoned" A.W. at a Kansas hospital. "Emergency jurisdiction under the UCCJEA allows courts to enter temporary orders to protect a child—but absent child abandonment, the situation must indeed be an emergency." In re A.A., 51 Kan. App. 2d at 806. "An emergency is '[a] serious situation or occurrence that happens unexpectedly and demands immediate action.' American Her- itage Dictionary 583 (5th ed. 2011)." 51 Kan. App. 2d at 807. But the fact that a child may be a CINC is an insufficient basis for emergency jurisdiction. 51 Kan. App. 2d at 807. K.S.A. 2020 Supp. 23-37,204(a) provides:

"A court of this state has temporary emergency jurisdiction if the child is present in this state and the child has been abandoned or it is necessary in an emergency to protect the child because the child, or a sibling or parent of the child, is subjected to or threatened with mistreatment or abuse."

If a previous child custody determination or proceeding exists, any emergency order must specify the period the court considers adequate to allow the person seeking an order to obtain such order from a court of a state having jurisdiction. K.S.A. 2020 Supp. 23-37,204(c); see In re A.A., 51 Kan. App. 2d at 808 ("Kansas court must 'immediately communicate' with the other court and must 'set a specific duration of any temporary orders.'"). If no child custody proceeding has been commenced in a court of a state having jurisdiction, an emergency child custody order remains in effect until an order is obtained from a court of a state having jurisdiction. If a proceeding is not commenced, then

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In re A.W. an order entered under this statute becomes final. K.S.A. 2020 Supp. 23-37,204(b). At the initial April 17, 2020 hearing in which the district court issued a temporary custody order, the record shows the district court per- functorily asserted on the record that it had subject matter jurisdiction. No one raised the issue of subject matter jurisdiction, and it was not discussed. In its written journal entry and order of temporary custody, most of which appears to be boilerplate, the district court stated:

"[A]n emergency exists which threatens the safety of the child as follows: Serious medical neglect regarding the child's diabetic condition. The child has been hospitalized numerous times and . . . the extreme mismanagement could be fatal or have significant physical consequences[.] Mother has been uncooperative with social services and father is deceased."

After the district court issued its initial temporary custody order, at no time was the issue of jurisdiction raised in any subsequent hearing. Moreover, the district court did not limit the timeframe of its CINC adjudication to give the appropriate Missouri court the opportunity to issue an order. The State's argument focuses on whether an emergency truly existed, as if that fully empowered the district court to act as it did. We agree that the evidence in the record—showing A.W. had been hospitalized five times for diabetic ketoacidosis in a little over two years and Mother's difficulty obtaining insulin during that time—supports the district court's assumption of emergency jurisdiction to act to ensure the safety of A.W. But even if an emergency as defined by the UCCJEA existed, the district court was limited by the statute to only exercising temporary emergency jurisdiction and issuing temporary orders to protect the child until the state with home state jurisdiction could act. See In re E.D., 812 N.W.2d 712, 717 (Iowa App. 2012) (emergency jurisdiction confers upon court power to enter temporary protective orders); UCCJEA § 204, comment (purpose of emergency jurisdiction is to protect child and allow for temporary protective orders until state with jurisdiction issues appropriate orders). Such authority does not extend to issuing more permanent orders such as a CINC adjudication. See 812 N.W.2d at 718 (no authority to issue CINC adjudication under emergency jurisdiction); In re A.L.H., 160 Vt. 410, 414, 630 A.2d 1288 (1993) (emergency jurisdiction confers only power to issue temporary protective orders, not permanent custody orders).

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In re A.W.

Thus, while the district court had the authority under its emergency jurisdiction to issue temporary protective orders, in the absence of a court in Missouri waiving jurisdiction, it lacked the authority to issue its CINC adjudication. Complicating our analysis here is the fact that no jurisdictional dispute yet exists because, according to the record before us, no child custody proceedings have been initiated in a court in Missouri. As we have explained, our emergency jurisdiction statute indicates that any temporary emergency orders issued become final in the absence of any orders from a home state court. See K.S.A. 2020 Supp. 23-37,204(b). This suggests that temporary emergency jurisdiction can ripen into home state jurisdiction once the home state declines jurisdiction. See In re E.T., 2015 WL 1125364, at *7; see also In re Gino C., 224 Cal. App. 4th 959, 967, 169 Cal. Rptr. 3d 193 (2014) (emergency jurisdiction may only ripen if home state declines jurisdiction). But no Missouri court has ever declined jurisdiction, and the district court adjudicated A.W. as a CINC on August 17, 2020, less than six months after A.W.'s presence in Kansas began. Thus, the district court's emergency jurisdiction had not yet ripened into home state jurisdiction. Therefore, we vacate the district court's adjudication of A.W. as a CINC and remand the matter to the district court. On remand, we order the district court to contact the appropriate Missouri court to ascertain if that court is willing to exercise jurisdiction. If the Missouri court is willing to take jurisdiction, then A.W.'s case should be transferred to Missouri. See In re J.C., 242 W.Va. at 175. If the Missouri court declines jurisdiction, then the district court should go through the appropriate steps to determine if it has subject matter jurisdiction over A.W. under the UCCJEA. See In re A.A., 51 Kan. App. 2d at 812; In re E.T., 2015 WL 1125364, at *7-8 (district court's jurisdiction ripened into home state jurisdiction once Missouri court declined jurisdiction).

Vacated and remanded with directions.

310 COURT OF APPEALS OF KANSAS VOL. 60

J.B.B. v. J.L.B.

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No. 123,083

J.B.B., Appellee, V. J.L.B., Appellant.

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SYLLABUS BY THE COURT

1. APPELLATE PROCEDURE—Appeal of District Judge Pro Tem's Order Filed with Court of Appeals. A party aggrieved by an order issued by a district judge pro tem who is regularly admitted to practice law in Kansas, and such order arises out of a matter that falls within the jurisdiction of a district magistrate judge, must file their appeal with the Court of Appeals.

2. JUDGES—District Magistrate Judge—Jurisdiction in Civil Cases—Excep- tions. A district magistrate judge shall have the jurisdiction and power to preside over all civil cases, save for 13 specific controversies which they are expressly excluded from hearing absent the explicit consent of the parties.

3. CIVIL PROCEDURE—Protection from Abuse Order—District Magistrate Judge Has Authority to Hear—Appeal Review to Court of Appeals. A protection from abuse order is considered a civil order of protection and one which a district magistrate judge is vested with the authority to preside over. As a result, the proper appellate avenue for a party aggrieved by a protection from abuse order issued by a district magistrate judge is to pursue review by the Court of Appeals.

4. SAME—Protection from Abuse Act—Purpose of Act—Liberal Construc- tion to Protect Victims. The Protection from Abuse Act, K.S.A. 60-3101 et seq., should be construed liberally to promote the protection of victims of domestic violence from bodily injury or threats of bodily injury and to facilitate access to judicial protection for the victims, whether represented by counsel or proceeding pro se.

5. SAME—Protection from Abuse Act—Definition of Abuse. In relevant part, the Protection from Abuse Act defines "abuse" as the occurrence of at least one or more of the following between intimate partners or household members: (1) intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury; or (2) intentionally placing, by physical threat, another in fear of imminent bodily injury.

Appeal from Leavenworth District Court; WILLIAM E. PRAY, judge pro tem. Opinion filed July 9, 2021. Affirmed in part, reversed in part, and vacated protection from abuse order.

Joseph W. Booth, of Lenexa, and Robert Hadley Hall, of Leavenworth, for appellant.

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J.B.B. v. J.L.B.

Robert R. Laing Jr., of Kansas City, for appellee.

Before ARNOLD-BURGER, C.J., GARDNER and ISHERWOOD, JJ.

ISHERWOOD, J.: J.L.B. (J.L.) appeals the district court's decision to grant a protection from abuse (PFA) order against her in favor of her former husband, J.B.B. (J.B.). Given the similarities in the parties' initials, we will refer to them by their first and mid- dle initials for the sake of clarity. J.L. contends that there was not sufficient evidence of bodily injury or a threat of imminent bodily injury to constitute abuse under the Protection from Abuse Act. See K.S.A. 60-3101 et seq. (PFA Act). J.B. testified that J.L.'s ir- rational behavior during the incident at issue, coupled with her physical assault of his new girlfriend during the encounter, made him fearful for his own safety. The district court accepted J.B.'s testimony and granted his request for an order of protection from abuse. We are not required to do the same. A fair reading of J.B.'s testimony reveals that it fails to clear the hurdle of substantial competent evidence required for the imposition of such protective measures. Additionally, J.L. initially filed her appeal with the district court, believing that to be the proper forum to review her challenge to imposition of the order. The district court redirected her appeal to this court, a decision J.L. likewise challenges. The governing statutory provisions dictate that jurisdiction over J.L.'s appeal properly lies with this court. We therefore determine that the district court's judgment is affirmed in part, reversed in part, and the protection from abuse order imposed against J.L. is vacated.

FACTUAL AND PROCEDURAL BACKGROUND

J.B. filed a petition for an order of protection from abuse against J.L. on June 22, 2020. The district court conducted an evidentiary hearing on the petition on July 13, 2020. District Judge pro tem William E. Pray was assigned to preside over the case. J.B. and J.L. both testified during the proceeding. J.B. informed the district court that on the day of the incident, he and J.L. were still working through their divorce and met at a Casey's General Store to exchange custody of their minor child.

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J.B.B. v. J.L.B.

Upon J.L.'s arrival, it was immediately apparent that she was upset over J.B.'s failure to remit a monthly payment owed on the truck J.B. had the privilege of driving but which J.L. still owned. J.B. recalled for the district court that he informed J.L. he would provide the payment in a matter of days, then turned and went into the store. Unappeased by J.B.'s offer, J.L. forcibly entered the passenger side of the vehicle, climbed over J.B.'s girlfriend, and grabbed the keys from the ignition of the truck. Given the way the parties' temporary divorce orders were drafted, J.L. apparently believed she possessed the legal authority to launch such self-repossession measures. A struggle ensued between J.L. and J.B.'s girlfriend, during which the girlfriend sustained a non-remarkable laceration. J.B. further testified that J.L. exhibited anger issues throughout their relationship and pulled knives on her other ex- husband, so it left J.B. wondering what J.L. was truly capable of in the fit of anger she was exhibiting that day. The entire incident was videotaped by surveillance camera, and a copy of the captured recording was provided to the district court by J.B. J.B. did acknowledge he was aware of the district court order that con- veyed the right of repossession to J.L., as well as the fact a delay in payment had resulted from J.L.'s attorney losing the check that J.B. previously delivered to him. That delay is apparently what prompted J.L.'s outburst that day. For her part, J.L. sought to refute the contention that she engaged in fisticuffs that afternoon. She assured the district court that she neither threatened J.B. nor initiated a physical assault. To the contrary, according to J.L., J.B. and his girlfriend restrained her by taking ahold of each of her hands. At the conclusion of the proceeding, the district court found that J.L. should not have undertaken "self-help repossession," and the consequence of choosing to do so was a violation of the PFA Act and imposition of an order granting J.B.'s request for protection. When J.L. requested the foundation for the district court's ruling, the judge pro tem explained that "busting into [J.B.'s] truck and taking his keys is a threat to him and his . . . possessions, and I, consequently, am finding that it is a violation." Following the district court's decision, J.L. attempted to file an appeal pursuant to K.S.A. 2020 Supp. 20-310a(d), the provision under which Judge pro tem Pray was appointed to the bench,

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J.B.B. v. J.L.B. and requested review by a district judge. The district court dismissed the appeal, however, noting that the proper avenue for review was to file in this court. J.L. has now appealed to this court, arguing that no abuse occurred and, therefore, no PFA order should have been issued. She further asserts that the judge erred when he dismissed her appeal in the district court. She presented her sufficiency of the evidence claim first, followed by her jurisdictional challenge. We have taken the liberty of reversing the issues, believing that a proper analysis of this case must commence with the clarification of any jurisdictional matters.

DID THE DISTRICT COURT ERR IN REJECTING J.L.'S APPEAL SEEKING REVIEW FROM A DISTRICT JUDGE PRO TEM?

J.L. challenges the district court's dismissal of her attempt to secure appellate review by a district court judge of Judge pro tem Pray's imposition of a protective order. Specifically, she contends that K.S.A. 2020 Supp. 20-310a(d) provides the proper pathway for relief because it states that when a judge pro tem is appointed under this subsection of the statute, as Pray was, any orders subsequently issued by that appointee are to be reviewed de novo in the district court. While this court agrees that the statutory provision referenced by J.L. is not without a measure of confusion and includes internally inconsistent language, the district court nevertheless properly concluded that an appeal to this court was the appropriate avenue for J.L. to pursue in her quest to obtain review of the protective order imposed against her.

Basic Legal Principles

This issue raises concerns regarding appellate jurisdiction. Whether jurisdiction exists is a question of law over which this court's scope of review is unlimited. In re Care & Treatment of Emerson, 306 Kan. 30, 34, 392 P.3d 82 (2017). Similarly, review of J.L.'s claim mandates an analysis of the governing statutory provisions. Statutory interpretation presents a question of law over which appellate courts have unlimited review. Nauheim v. City of Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). When the record discloses a lack of jurisdiction, the appellate court must dismiss

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J.B.B. v. J.L.B. the appeal. Wiechman v. Huddleston, 304 Kan. 80, 85, 370 P.3d 114 (2016). Resolution of this matter necessitates the navigation of three separate, yet interrelated, provisions triggered by Pray's appointment: K.S.A. 2020 Supp. 20-310a(d), K.S.A. 2020 Supp. 20- 302b(a), and K.S.A. 2020 Supp. 20-302b(c)(2). The natural incli- nation is to home in on the portions of those provisions which speak directly to appellate review. Beginning with K.S.A. 2020 Supp. 20-310a(d), it states the following regarding the appellate process:

"(d) . . . Any party aggrieved by any order of a judge pro tem under this subsection may appeal such order and such appeal shall be heard by a district judge de novo. If the appeal is a small claims action, the appeal shall be under K.S.A. 61-2709, and amendments thereto. If the appeal is an action within the jurisdiction of a district magistrate judge, the appeal shall be under K.S.A. 20- 302b, and amendments thereto."

Turning then to K.S.A. 2020 Supp. 20-302b, the portion of that provision which addresses appellate review is found at subsection (c)(2), which states as follows:

"In accordance with the limitations and procedures prescribed by law, and subject to any rules of the supreme court relating thereto, any appeal permitted to be taken from an order or final decision of a district magistrate judge: (A) Who is not regularly admitted to practice law in Kansas shall be tried and determined de novo by a district judge, except that in civil cases where a record was made of the action or proceeding before the district magistrate judge, the appeal shall be tried and determined on the record by a district judge; and (B) who is regularly admitted to practice law in Kansas shall be to the court of appeals."

Pray, a "regularly admitted" member of the Kansas Bar, was appointed to hear matters "within the jurisdiction of a district magistrate judge" as provided in K.S.A. 2020 Supp. 20-302b. Thus, whether the district court properly directed J.L. to pursue her appeal to this court turns on whether protection from abuse orders can be said to fall "within the jurisdiction of a district magistrate judge." The answer to that question requires that we remain under K.S.A. 2020 Supp. 20-302b, but we now focus our attention on subsection (a), which reads:

"Subject to assignment pursuant to K.S.A. 20-329, and amendments thereto, a district magistrate judge shall have the jurisdiction and power, in any case in which a violation of the laws of the state is charged, to conduct the trial of traffic

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J.B.B. v. J.L.B. infractions, violations of the wildlife, parks and tourism laws of this state or rules and regulations adopted thereunder, cigarette or tobacco infractions or misdemeanor charges, to conduct felony first appearance hearings and the preliminary examination of felony charges and to hear misdemeanor or felony arraignments. A district magistrate judge shall have jurisdiction over uncontested actions for divorce. Except as otherwise specifically provided in this section, a district magistrate judge shall have jurisdiction over actions filed under the code of civil procedure for limited actions, K.S.A. 61-2801 et seq., and amendments thereto, and all other civil cases, and shall have concurrent jurisdiction, powers and duties with a district judge." (Emphasis added.)

Our research reveals that the italicized language clarifies that portion of Judge pro tem Pray's authority as it relates to this case. That is, included within the purview of the vast net cast to encompass "all other civil cases" are protection from abuse orders. This court has previously held that a protection from abuse order is considered a civil order of protection. See Kerry G., 53 Kan. App. 2d 218, Syl.; see also C.B. v. Bailey, No. 122,581, 2021 WL 2386378, at *2 (Kan. App. 2021) (unpublished opinion) ("K.S.A. 60-3109 specifically provides that the ordinary rules of civil procedure apply to proceedings under the protection from abuse act."). Moreover, because district magistrate judges share concurrent jurisdiction with a district court, a district magistrate judge would seemingly be permitted to preside over PFA claims. See K.S.A. 2020 Supp. 60-3103 ("Any district court shall have jurisdiction over all proceedings under the protection from abuse act."). Finally, K.S.A. 2020 Supp. 20-302b(a) also sets forth a list of 13 controversies which district magistrate judges are specifically excluded from presiding over absent express consent of the parties. The Legislature did not see fit to include protection from abuse orders within that list. It is not lost on this court that an inherent conflict exists in the plain language of K.S.A. 2020 Supp. 20-310a(d). Specifically, it states that "[a]ny party aggrieved by any order of a judge pro tem under this subsection may appeal such order and such appeal shall be heard by a district judge de novo," yet later directs that the proper avenue of appeal for litigants such as J.L. is before this court. The tension between those directives reflects an outdated inaccuracy in the statute worthy of correction, but not one which is fatal to our conclusion here with respect to the propriety of the district court's decision over J.L.'s appeal. K.S.A. 20-302b(a) was

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J.B.B. v. J.L.B. amended in 2015 to insert the requisite language to include "all other civil cases" within the jurisdiction of district court magistrate judges. This court is of the opinion that given the plain language of K.S.A. 2020 Supp. 20-310a(d)—the provision under which Pray was appointed, which states that appeals taken from actions within the jurisdiction of a district magistrate judge are to be pursued in accordance with "K.S.A. 20-302b, and amendments thereto"—that the directive necessarily encompasses the 2015 amendments. Thus, J.L. was properly directed to file her appeal from the imposition of a protection from abuse order, a civil matter, with this court. Because the relevant statutory provisions reflect that Judge pro tem Pray was authorized to act within the jurisdiction of a district magistrate judge—jurisdiction which broadly encompasses all civil matters, including protection from abuse claims—the district court correctly determined that to obtain review of the PFA order imposed against her, J.L. needed to file her appeal in this court, not the district court. See K.S.A. 2020 Supp. 20-310a; K.S.A. 2020 Supp. 20-302b. J.L. raised an additional appellate issue requesting that her claims not be dismissed as moot in the event this court fails to resolve her case prior to the expiration of the PFA order on July 13, 2021. Given the timing of this court's opinion, it is unnecessary to address this issue.

WAS THE DISTRICT COURT'S DECISION TO IMPOSE A PROTECTION FROM ABUSE ORDER AGAINST J.L. SUPPORTED BY SUBSTANTIAL COMPETENT EVIDENCE?

J.L. challenges the sufficiency of the evidence the district court relied on in issuing the PFA order and asserts there was not substantial competent evidence to reflect abuse as defined in relevant statutes. J.B., of course, takes the contrary position, directing our attention to J.L.'s entry into his vehicle. J.B. further contends that it is reasonable to conclude that he was afraid because he faced having to ensure the safety of the occupants of his vehicle and of the vehicle itself. Additionally, he likens the fear in the situation involved here to a scenario in which a person is in their home and hears a loud noise outside and, upon investigation, finds a third party vandalizing their property.

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J.B.B. v. J.L.B.

Basic Legal Principles

When a party challenges the sufficiency of the evidence, this court determines whether the district court's factual findings are supported by substantial competent evidence and whether the findings are sufficient to support the court's legal conclusions. Geer v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019); Gannon v. State, 298 Kan. 1107, 1175-75, 319 P.3d 1196 (2014). Substan- tial competent is "'evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved.'" Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 470, 447 P.3d 959 (2019). Stated another way, substantial competent evidence refers to legal and relevant evidence that a reasonable person could accept as adequate to support a conclusion. Geer, 309 Kan. at 190; Barnett v. Barnett, 24 Kan. App. 2d 342, 348, 945 P.2d 870 (1997). Appellate courts "do not reweigh the evidence or make our own credibility determinations, and we generally view the evidence in the light most favorable to the party who prevailed in the district court." Kerry G. v. Stacy C., 53 Kan. App. 2d 218, 221-22, 386 P.3d 921 (2016). In doing so, we must accept "all evidence and inferences that support or tend to support the [district court's] findings as true, and . . . must disregard all conflicting evidence." Frick Farm Properties v. Kansas Dept. of Agriculture, 289 Kan. 690, 709-10, 216 P.3d 170 (2009). The PFA Act should be construed liberally "to promote the protection of victims of domestic violence from bodily injury or threats of bodily injury and to facilitate access to judicial protection for the victims, whether represented by counsel or proceeding pro se." K.S.A. 60-3101(b). PFA orders are by their nature subjective judgments, and the district court is in the best position to know when they are warranted. Jordan v. Jordan, 47 Kan. App. 2d 300, 306, 274 P.3d 657 (2012). After hearing testimony from both parties and watching a video of the incident, the district court determined that a PFA order against J.L. was warranted. In making this decision, the district court noted that J.L. seemingly sought to engage in a "self-help repossession" of her truck. When J.L.'s counsel requested that the

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J.B.B. v. J.L.B. district court provide J.L. with a more detailed reason for its decision to issue the PFA order, the court simply responded: "I think busting into [J.B.'s] truck and taking his keys is a threat to him and his . . . possessions, and I, consequently, am finding that it is a violation." This finding cannot establish that J.L. committed an act of abuse as contemplated under the PFA Act. In relevant part, the PFA Act defines "[a]buse" as the occurrence of at least one or more of the following acts between intimate partners or household members:

• "Intentionally attempting to cause bodily injury, or intentionally or recklessly causing bodily injury"; or • "Intentionally placing, by physical threat, another in fear of imminent bodily injury." K.S.A. 2020 Supp. 60- 3102(a).

J.B. testified that when J.L. opened the passenger side door of the truck, she "climbed . . . over" his girlfriend to try to get the keys to the truck out of the ignition, leading to a struggle between the two women over the keys. He also testified that J.L. had "multiple" previous instances in which she exhibited anger issues. J.B. alleged that J.L. had previously "pulled knives" on her other ex- husband and suggested that she may have carried a weapon into court for the hearing. When asked whether J.L. threatened him during the interaction, J.B. answered that she had threatened him "many times" in the past. The most aggressive behavior that J.B. testified J.L. committed on the day of the incident was that J.L. "was beating on [his] girlfriend," which he claimed caused him to fear for himself. The court also watched the video of the encounter but seemingly did not place any emphasis on the same or rely on it in any way in making its decision. We have likewise undertaken a review of the video and similarly found it to be unpersuasive. The district court found that J.L.'s act of entering J.B.'s truck constituted a threat. While this court has been reluctant to substitute the district court's judgment with our own in protection from abuse matters, we are equally committed to ensuring that individuals are not unjustly subjected to measures for which a firm evidentiary foundation is lacking. Such is the case here. We decline

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J.B.B. v. J.L.B. to find that the evidence offered in support of the protective order rose to the level of substantial competent evidence required to establish that such a measure was warranted. Comparing the facts of this case with those considered in Tro- linger v. Trolinger, 30 Kan. App. 2d 192, 194-95, 42 P.3d 157 (2001), we recognize that while the evidence in that case leaned toward the minimal end of the spectrum, it was, though, ultimately sufficient to sustain imposition of the order. Specifically, the Tro- linger panel considered the following evidence when reviewing the district court's order:

"Valerie never specifically testified that Arby had done great physical harm to her, but she did testify that he had frightened her and that she was afraid of him. According to Valerie, Arby had made a point of having a discussion with her and told her how he could make bodies disappear. According to Valerie, Arby kept loaded weapons in the home, and the Oklahoma authorities had investigated him for possible involvement in the disappearance of his former wife. On one occasion, Valerie attempted to call her son while she was at home and found the phone had been disconnected, a car key was missing from her keyring, and the garage was padlocked. "Valerie testified about regular instances in which Arby would restrain her against her will by squeezing her to a point where she feared he was going to crack one of her ribs. She also testified that Arby had hit her son. According to Valerie, she was constantly in fear that Arby would do bodily injury to her and to her son." 30 Kan. App. 2d at 194-95.

The panel also outlined a portion of the testimonial evidence Arby presented in his defense. But that is unnecessary here. Again, this court does not reweigh evidence. Kerry G., 53 Kan. App. 2d at 221-22. It also accepts the evidence and inferences that support the trial court's findings and disregards conflicting evidence. Frick Farm Properties, 289 Kan. at 709-10. The evidence before the district court, and likewise the evidence before this court, is insufficient to support the district court's imposition of a protection from abuse order against J.L. The order is vacated.

The decision of the district court is affirmed in part and reversed in part, and the protection from abuse order imposed against J.L. is vacated.

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State v. Rodriguez

___

No. 122,002

STATE OF KANSAS, Appellee, v. JOSE JESUS RODRIGUEZ, Appellant.

___

SYLLABUS BY THE COURT

1. APPELLATE PROCEDURE—Interpretation of Mandate—Appellate Review. Generally, the interpretation of an appellate court mandate and whether the district court complied with it are questions of law subject to unlimited review.

2. CRIMINAL LAW—Post-Remand Procedural Delay Is Due Process Chal- lenge—Application of Four Barker v. Wingo Factors to Determine if Viola- tion. Courts have classified claims of post-remand procedural delays as a due process challenge and usually apply the four constitutional speedy trial factors from Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972): the length of delay, the reason for the delay, the defendant's assertion of his or her right, and prejudice to the defendant in deciding whether the defendant's due process rights have been violated.

3. SAME—Withdrawal of Plea—Allowed to Withdraw before Sentence. A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before the sentence is adjudged.

4. SAME—Presentence Motion to Withdraw Plea—Good Cause Determina- tion by District Court--Appellate Review. In a presentence motion to withdraw plea, an appellate court reviews a district court's good-cause determination for an abuse of discretion. The person claiming an abuse of discretion has the burden to establish the district court's decision was: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact. The district court commits an error of fact when its findings are unsupported by substantial competent evidence.

5. APPELLATE PROCEDURE—Mandate Rule—Application. The mandate rule does not constitute an inflexible jurisdictional barrier to a party's ability to raise a new issue following a remand, but where a remand order is stated in specific terms following deliberate litigation choices by the parties, the parties are not free to endlessly expand on the issues the district court may consider in the absence of new, or newly discovered, facts.

Appeal from Seward District Court; CLINT B. PETERSON, judge. Opinion filed July 16, 2021. Affirmed.

Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, for appellant.

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State v. Rodriguez

Russell Hasenbank, county attorney, and Derek Schmidt, attorney general, for appellee.

Before MALONE, P.J., WARNER and HURST, JJ.

MALONE, J.: Jose Jesus Rodriguez brings this second appeal of the district court's decision denying his presentence motion to withdraw plea. Rodriguez pled no contest to abuse of a child committed in 2009, but he later filed presentence and postsentence motions to withdraw plea, all of which were denied. In the first appeal, this court affirmed the denial of Rodriguez' postsentence motions to withdraw plea, but we remanded for the district court to reconsider his presentence motion based on newly discovered evidence. State v. Rodriguez, No. 108,505, 2014 WL 1096553 (Kan. App. 2014) (unpublished opinion) (Rodriguez I). By the time the mandate was issued, Rodriguez had completed his sentence and no action was taken to schedule a remand hearing for nearly four years. Rodriguez eventually moved to dismiss arguing that his constitutional due process rights had been violated because the district court did not conduct the remand hearing in a timely manner. The district court denied the motion to dismiss, held an evidentiary hearing on the presentence motion to withdraw plea, and once again denied the motion. Rodriguez appeals, arguing (1) the district court erred in denying his motion to dismiss and (2) the district court erred in denying his presentence motion to withdraw plea. Although we disagree with some of the district court's reasons for denying both motions, we find no reversible error and affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The court in Rodriguez I summarized the facts and procedural history of the case:

"On November 25, 2009, the State charged Rodriguez with one count of abuse of a child under K.S.A. 21-3609, a severity level 5 person felony. It then amended the complaint to add two more counts of abuse of a child. As part of a plea agreement, the State filed a second amended complaint with just one count of abuse of a child in exchange for Rodriguez' plea of no contest to the charge. "On January 26, 2010, the district court arraigned Rodriguez and engaged in a colloquy with him regarding his plea. The State then provided the court with a factual basis of the evidence that it would have presented had the case gone to

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State v. Rodriguez trial. Specifically, the State believed the evidence would have shown that Rodri- guez was babysitting his 4–month–old son, J.R., on November 23, 2009, when he sent a text message to the baby's mother [F.Q.] stating: '"[T]he baby is scaring me."' The State claimed the evidence would then show that

'[F.Q.] left work, and found the infant in his car seat, and with his eyes rolled up and he was unresponsive. The child began seizure activity shortly thereafter, and was subsequently taken from Southwest Medical Center to Wesley Medical Cen- ter in Wichita. He was examined there by numerous physicians, including ones that diagnosed the child with bilateral retinal hemorrhages consistent with Shaken Baby Syndrome. And that it was a very strong probability of Shaken Baby Syndrome, not accidental infliction of those injuries. Those injuries would have been caused, according to medical testimony, by the intentional shaking and possible impact of J.R., date of birth . . . 2009. And that did result in great bodily harm to the child, including having bore holes drilled into the skull to alleviate the pressure caused by the bleeding in the brain.'

"Based on the factual basis given by the State, the court found Rodriguez guilty. The court then scheduled sentencing for March 10, 2010, at 10 a.m. "On March 4, 2010, Rodriguez filed a presentence motion to withdraw his no-contest plea. In support of his motion, Rodriguez argued that good cause existed to withdraw the plea because new evidence had been discovered that might exonerate him. Rodriguez affirmed that 'he is not guilty of the charges filed against him and has a viable defense to said charges,' noting that the evidence upon which the charges were based was circumstantial and insufficient to form the basis of a conviction against him. Along with this motion, Rodriguez submitted an affidavit from [F.Q.] stating that she had remembered a coworker at her job had thrown J.R. in the air. "The district court considered this motion when Rodriguez appeared for sentencing on March 10, 2010. [F.Q.] testified that she was Rodriguez' girlfriend but said she was no longer involved with Rodriguez. She said she remembered Detective Bethany Keating had asked her during the interrogation whether she could remember anyone throwing J.R. up in the air. [F.Q.] testified that she was so worried about her son at the time that she did not think about it and, therefore, told Detective Keating, '[N]o.' But she said she later remembered, however, that a coworker at her job had thrown J.R. in the air when he was around 2 or 3 months old, which was about a month or two before J.R. was hospitalized. [F.Q.] said the coworker threw J.R. pretty high more than once but did not drop him and she then asked the woman to stop doing it. She said her employer probably had the incident on videotape. [F.Q.] said after that incident J.R. slept a lot more than usual but did not vomit and did not refuse to eat. Unlike the later incident involving Rodriguez where J.R.'s eyes were rolling back in his head and it was very obvious to [F.Q.] that something was wrong, she did not notice any signs of anything being wrong with J.R. after the incident at work and did not seek any medical care for J.R. [F.Q.] said when she contacted Detective Keating about what she had remembered, Detective Keating 'basically threw it off, like, it was- n't that for sure, it wasn't my [coworker] who had done this to him.'

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State v. Rodriguez

"[F.Q.] also testified that on one occasion J.R. had fallen forward out of his car seat, which had been placed on a couch. She said he hit the front of his face on the carpeted floor but did not cry. She testified that she did not remember if J.R. acted any differently after that incident. [F.Q.] also testified that on another occasion Rodriguez tripped and fell as he walked while carrying J.R. in his car seat. She 'figured the baby probably whiplashed' as a result. She did not say when these incidents took place. "The State called Detective Keating, who acknowledged that she spoke with [F.Q.] on March 1 or 2, 2010. She said [F.Q.] told her she had just remembered that a coworker had been throwing J.R. in the air when he was between 2 and 3 months old. [F.Q.] did not provide the name of the coworker. Detective Keating said she wrote down [F.Q.'s] information but did not do anything further with it. She did not interview anyone about that information, review the videotapes from [F.Q.'s] employer, or provide it to the county attorney's office. Detective Keating testified she did not interview anyone because 'the information [F.Q.] provided was not consistent with evidence that [she] had received from the medical staff in the investigation in this case.' Detective Keating was not a medical expert. Although Detective Keating said she had attended numerous seminars on child abuse, including shaken baby syndrome, she also said she had not received specific training on shaken baby syndrome. "After these witnesses testified, the State told the district court that it could provide additional medical testimony if the court wanted to continue the hearing for that reason. Rodriguez' attorney similarly told the court that he thought they needed to have some sort of medical testimony regarding what type of injury can occur when a baby is thrown in the air. Nonetheless, the district court refused to continue the matter. After hearing argument from both counsel, the district judge found:

'[T]his child had to have bore holes drilled in his head to relieve pressure from the brain swelling. These are not injuries that surfaced a month after any event. These are injuries that surfaced immediately. And there is no correlation, in my mind, from any incident that occurred with a co-worker at least a month prior to the hospitalization of this child and the injuries. Therefore, you have failed to show good cause and your motion is denied.'

"The court sentenced Rodriguez to 34 months in prison, followed by 24 months of postrelease supervision." Rodriguez I, 2014 WL 1096553, at *1-3.

Rodriguez filed two postsentence motions to withdraw plea, which were denied. Rodriguez appealed, arguing the district court erred in denying his motions to withdraw plea. This court affirmed the district court's denial of Rodriguez' postsentence motions to withdraw plea. 2014 WL 1096553, at *12. But the majority held the district court abused its discretion in denying Rodriguez' presentence motion to withdraw plea. 2014 WL 1096553, at *7. The majority determined that the district court's factual findings

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State v. Rodriguez that J.R.'s injuries could not have occurred as F.Q. described were not supported by any medical evidence, and the district court had based its decision on the judge's personal opinions. 2014 WL 1096553, at *5-7. The majority reversed the district court's decision to deny the presentence motion to withdraw plea and remanded for the district court to decide "whether the newly discovered evidence produced by Rodri- guez is good cause to justify granting his motion to withdraw plea and to make findings of fact and conclusions of law supported by substantial competent evidence to justify it[s] decision." 2014 WL 1096553, at *12. The district court received the mandate on April 30, 2014. There was no activity in the case except for attempts to collect restitution from Rodriguez. Almost four years later, on April 6, 2018, Rodriguez moved to dismiss, arguing that his "constitutional due process rights" had been violated because the district court did not conduct the remand hearing in a timely manner. For relief, Rodriguez asked that "his conviction be vacated and the case dismissed for the failure to follow the mandate." The district court held a hearing on the motion to dismiss on May 8, 2018. Rodriguez pointed out that it had been over four years since the mandate was issued and nothing had happened. The prosecutor responded that Rodriguez' sentence had expired and there were questions about whether he was in custody on immigration issues. As a result, the prosecutor asserted it was not the State's burden to schedule the matter for a remand hearing. On May 22, 2018, the district court issued an order finding that "in this very unique factual circumstance, it was incumbent upon [Rodriguez] to approach the Court to seek implementation of the Court of Appeals' Mandate. As [Rodriguez] failed to take steps to implement the Mandate, [his] motion to dismiss is denied." A hearing was then scheduled on the motion to withdraw plea, but it was continued several times. On May 3, 2019, Rodriguez, through counsel, filed another motion to withdraw plea. The motion submitted "additional arguments . . . in support of [Rodriguez'] request to withdraw his plea prior to sentencing." Rodriguez argued that good cause existed to withdraw his plea because there was not a sufficient factual basis to support his no-contest plea in the first place. Rodriguez asserted that the factual basis did not establish when J.R.'s injuries occurred, if Rodriguez inflicted the injuries, and whether the injuries resulted from intentional conduct.

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State v. Rodriguez

The district court held an evidentiary hearing on Rodriguez' presentence motion to withdraw plea on August 23, 2019. To supple- ment F.Q.'s prior testimony, Rodriguez called Dr. Terra Frazier, a child abuse pediatrician from Children's Mercy Hospital. Frazier testified that based on J.R.'s medical records, there were indications of older and newer findings of abusive head trauma. Frazier testified that "[m]edically it cannot be determined when exactly the injury occurred" or if it occurred while J.R. was in Rodriguez' care. On cross-examination, Fra- zier agreed that J.R.'s injuries would have normally occurred a short time before the hospitalization. Frazier also testified that tossing a baby in the air would not be expected to cause the injuries seen in the child. She also stated a fall from a couch or from a car seat would not explain the symptoms seen in the child. Frazier stated that routine care and han- dling of the child or an accident would not have caused the injuries. Instead, J.R.'s injuries were linked to shaking or impact. In closing argument, Rodriguez' counsel agreed that the medical records upon which Frazier based her testimony existed at the time of the original plea. On September 18, 2019, the district court issued an order denying Rodriguez' presentence motion to withdraw plea. The district court found that Frazier's testimony supported the court's original decision to deny the motion. The district court made an additional finding that F.Q. was not a credible witness, and she was lying to help Rodriguez avoid responsibility for the crime. The district court found that Rodriguez failed to meet his burden of showing good cause to withdraw his plea. As for the separate motion filed on May 3, 2019, asserting an insufficient factual basis for the plea, the district court's order stated only that "[t]he Mandate did not vacate [Rodriguez'] sentence, therefore the other issues raised by [Rodriguez] premised upon this belief are moot and denied." Rodriguez timely appealed the district court's judgment.

DID THE DISTRICT COURT ERR IN DENYING RODRIGUEZ' MOTION TO DISMISS?

Rodriguez first claims the district court erred in denying his motion to dismiss. He argues that the district court should have granted his motion to dismiss because the district court did not hold the remand hearing until almost four years after the mandate instructed it to "'without delay'" execute the judgment of the Court

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State v. Rodriguez of Appeals. Rodriguez asks this court to find that the State bears the burden to implement a mandate. He argues that the State should have filed a notice of hearing, contacted his appellate counsel, or tried to serve him at his last known address. Rodriguez asserts that if this court agrees with his argument, the only remedy is to vacate his conviction and dismiss the case. The State argues that neither it nor the district court failed to follow the mandate because neither had any ability to contact Ro- driguez to set a hearing. The State asserts it had "no duty to find [Rodriguez]" and he should have requested a hearing on the issue. The State also asserts that there is no requirement found in either statute or caselaw that requires a hearing on a mandate from a higher court be held in any specific time frame. In the alternative, the State argues that if there was a way for it to have set a hearing, any failure to do so was harmless because Rodriguez has failed to allege any prejudice. Generally, the interpretation of an appellate court mandate and whether the district court complied with it are questions of law subject to unlimited review. Gannon v. State, 303 Kan. 682, 702, 368 P.3d 1024 (2016). Similarly, to the extent that resolution of this claim requires statutory interpretation, our review is unlimited. State v. Alvarez, 309 Kan. 203, 205, 432 P.3d 1015 (2019). Both parties assert that this is an issue of first impression and that they could not find any relevant caselaw. But our research found one Kansas case addressing post-remand delay. In 2003, this court addressed a defendant's argument that his due process rights were violated when the district court delayed resentencing on remand. State v. Prater, 31 Kan. App. 2d 388, 65 P.3d 1048 (2003). Prater was convicted of aggravated arson and assault on a law enforcement officer. On appeal, this court reversed his aggravated arson conviction and remanded with orders to enter a new conviction for attempted aggravated arson. 31 Kan. App. 2d at 389. The district court received the mandate in February 2000 but did not resentence Prater until May 2001. During the delay, Prater was convicted of other charges which increased his criminal history score. Prater appealed arguing the delay in resentencing violated his due process rights. The Prater court noted that Kansas caselaw has only examined the due process implications of pre-accusation delay, not

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State v. Rodriguez post-appeal delay. The court explained that in State v. Royal, 217 Kan. 197, 535 P.2d 413 (1975), the Kansas Supreme Court used the Marion test to examine pre-accusation delay, which asked if the delay prejudiced the accused and if the delay was used to gain a tactical advantage over the accused. Prater, 31 Kan. App. 2d at 391 (citing United States v. Marion, 404 U.S. 307, 92 S. Ct. 455, 30 L. Ed. 2d 468 [1971]). If the answer to both was yes, then the proper remedy was dismissal. The Prater court pointed to a New Mexico Court of Appeals case that applied the Marion test to determine whether a post-remand delay violated the appellant's due process rights. Finding the New Mexico case instructive, the court applied the Marion test to Prater's claim and found he demonstrated prejudice but failed to show that the State intentionally delayed the resentencing. Prater, 31 Kan. App. 2d at 392. Thus, the court denied his claim. 31 Kan. App. 2d at 392. Our research reveals that other jurisdictions have classified claims of post-remand procedural delays as a due process challenge. And the cases usually apply the four constitutional speedy trial factors from Barker v. Wingo, 407 U.S. 514, 530-32, 92 S. Ct. 2182, 33 L. Ed. 2d 101 (1972): the length of delay, the reason for the delay, the defendant's assertion of his or her right, and prejudice to the defendant, in deciding whether the defendant's due process rights have been violated. See, e.g., United States v. Thomas, 167 F.3d 299, 305 (6th Cir. 1999) (finding 29-month delay did not provide relief because defendant did not show prejudice); State v. Nia, 15 N.E.3d 892, 897-98 (Ohio Ct. App. 2014) (finding 68-month delay between remand and resentencing did not provide relief because defendant could not show prejudice); Com. v. Fox, 953 A.2d 808, 812-13 (Pa. Super. 2008) (finding one-year delay between remand and resentencing did not provide defendant relief because he failed to show prejudice); United States v. Cain, 734 Fed. Appx. 21, 25-26 (2d Cir. 2018) (unpublished opinion) (finding five-year delay between remand and resentencing did not provide defendant relief because he did not show prejudice). We find it reasonable to adopt the Barker test in this jurisdiction for claims of post-remand delay, especially given that the mandate "command[s]" the lower court to execute judgment "without delay" and the lower court is duty-bound to follow the

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State v. Rodriguez remand. See K.S.A. 20-108; K.S.A. 60-2106(c). In adopting this test, we observe that Rodriguez' brief compared the post-remand delay in his case to a speedy trial violation. The Barker test is also similar to the Marion test used by this court in Prater, which considered the nature of the delay and whether the delay caused prejudice. We will now apply the four Barker factors to the post-remand delay in Rodriguez' case. First, as for the length of the delay— almost four years—we find this factor weighs in favor of granting Rodriguez relief. Second, as for the reason for the delay, the Kan- sas Supreme Court has stated:

"'A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay.'" State v. Owens, 310 Kan. 865, 875-76, 451 P.3d 467 (2019) (quoting Barker, 407 U.S. at 531).

Rodriguez is correct in asserting that the district court erred in finding the delay to be his fault. The district court incorrectly found the State and the court had no way to implement the mandate and that "it was incumbent upon [Rodriguez] to approach the Court to seek implementation of the . . . [m]andate." Instead, the district court is tasked with implementing the mandate, not the defendant. See Cain, 734 Fed. Appx. at 25 (The district court has the "responsibility . . . to act with appropriate dispatch to address cases on remand after an appeal. . . . And when the district court fails in this responsibility, the burden falls upon the government to remind the court of the unfinished business before it."). The district court also incorrectly found that the State could not give notice of any hearing to Rodriguez. The State or the district court could have at least tried to send a notice of hearing to Rodriguez at his last known address and, if he did not appear, then the court could have proceeded accordingly. Despite these erroneous findings, there is nothing in the record that would support finding the delay was a deliberate attempt by the State to delay the remand hearing from occurring. Instead, it seems to have been negligence of the district court and the State.

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State v. Rodriguez

Considering the record here, we find the second factor weighs in Rodriguez' favor. As for the third Barker factor, Rodriguez did not assert his right to have the remand timely decided. He did not alert the district court that the matter remained pending or that he wanted it to be timely decided at any time during the almost four-year delay. He first alerted the district court of the pending matter in his motion to dismiss. Thus, the third factor weighs against him, although we find this factor less significant than the others. See, e.g., Fox, 953 A.2d at 813 (finding third factor weighed against defendant when he did not alert the court of delay until he moved to dismiss). The fourth factor, prejudice to the defendant, is where Rodri- guez' claim ultimately fails. In analyzing the prejudice factor, Barker identified three interests the speedy trial right was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize anxiety and concern of the accused; and (3) to limit possible impairment of the defense. Barker, 407 U.S. at 532; Owens, 310 Kan. at 880. Rodriguez did not allege any prejudice before the district court, and he makes no claim of prejudice on appeal. The record shows that Rodriguez had completed his sentence before the post- remand delay even started. He makes no claim that the delay neg- atively impacted his rights in this case or any other case. He makes no claim that the delay caused him any anxiety or concern. The delay did not impair his ability to prepare for the remand hearing, and he was able to call Frazier as a witness to support his motion to withdraw plea. The lack of prejudice to the defendant weighs heavily in applying the Barker analysis. Courts hold that the lack of prejudice in post-remand delay cases negates any claim of a violation of due process based on delay. See, e.g., Cain, 734 Fed. Appx. at 26 (finding lack of prejudice outweighed other factors); Nia, 15 N.E.3d at 898 (finding claim failed because defendant did not show prejudice); Fox, 953 A.2d at 813 (finding defendant could not show prejudice). In sum, the district court's four-year delay in complying with the mandate is certainly not the standard courts should usually set. But Rodriguez has failed to establish a due process violation based on post-remand delay, mainly because he alleges no prejudice

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State v. Rodriguez caused by the delay. Even if Rodriguez had shown a due process violation, a more appropriate remedy in this post-remand delay situation may have been to allow him to withdraw his plea instead of dismissing the case as he requested. In any event, we conclude the district court did not err in denying the motion to dismiss, although it did so for incorrect reasons. See State v. Overman, 301 Kan. 704, 712, 348 P.3d 516 (2015) (if a district court reaches the correct result, its decision will be upheld even though it relied on the wrong ground or assigned erroneous reasons for its decision).

DID THE DISTRICT COURT ERR IN DENYING RODRIGUEZ' MOTION TO WITHDRAW PLEA?

Rodriguez next claims the district court erred in denying his presentence motion to withdraw plea which was based on alleged newly discovered evidence. To recap, at the initial hearing on this motion, Rodriguez' girlfriend, F.Q., testified there were three prior incidents that could have caused J.R.'s brain injury, the main one being a co-worker tossing J.R. into the air about a month before the child's hospitalization. But F.Q. also briefly described an incident where J.R. had fallen out of his car seat, which had been placed on the couch, and his face hit the carpeted floor. She briefly described a third incident where Rodriguez tripped and fell as he was carrying J.R. in his car seat. The district court rejected these explanations for J.R.'s brain injury, finding they could not have possibly caused the injury that led to the child's hospitalization. In Rodriguez' first appeal, a majority of this court determined that the district court's factual findings that J.R.'s injuries could not have occurred as F.Q. described were not supported by any medical evidence, and the district court had based its decision on the judge's personal opinions. The majority reversed the district court's decision to deny the presentence motion to withdraw plea and remanded for the district court to decide "whether the newly discovered evidence produced by Rodriguez is good cause to justify granting his motion to withdraw plea and to make findings of fact and conclusions of law supported by substantial competent evidence to justify it[s] decision." Rodriguez I, 2014 WL 1096553, at *12. At the remand hearing, Rodriguez called Frazier, a child abuse pediatrician, to further support his claim. Frazier testified that

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State v. Rodriguez based on J.R.'s medical records, there were indications of older and newer findings of abusive head trauma. Frazier testified that "[m]edically it cannot be determined when exactly the injury occurred" or if it occurred while J.R. was in Rodriguez' care. On cross-examination, Frazier agreed that J.R.'s injuries would have normally occurred a short time before the hospitalization. She also testified that tossing a baby in the air would not be expected to cause the injuries seen in the child. She also stated that a fall from a couch or from a car seat would not explain the symptoms seen in the child. Frazier stated that the injuries were not accidental but were linked to shaking or impact. In closing argument, Rodriguez' counsel agreed the medical records upon which Frazier based her testimony existed at the time of the original plea. After hearing the additional evidence, the district court again denied Rodriguez' presentence motion to withdraw plea. The district court found that Frazier's testimony supported the court's original decision to deny the motion. The district court made an additional finding that F.Q. was not a credible witness, and she was lying to help Rodriguez avoid responsibility for the crime. The district court found that Rodriguez failed to meet his burden of showing good cause to withdraw his plea. In this appeal, Rodriguez argues that the district court erred in denying his motion because "he was innocent and had a viable defense . . . supported by Dr. Frazier's testimony." Rodriguez argues that the district court's findings were not supported by the evidence. Rodriguez then discusses "negative finding[s]" and asserts that the district court here demonstrated its bias, passion, or prejudice when entering such findings. Then, under a heading entitled "Lack of Factual Basis," Rodriguez argues that the district court should have granted his 2019 motion to withdraw plea. The State's brief does not address many of Rodriguez' arguments. Instead, the State simply asserts that Frazier's testimony added nothing to this case and concludes that Rodriguez failed to establish good cause to withdraw his plea. We begin by stating the applicable law concerning a presentence motion to withdraw plea. "A plea of guilty or nolo contendere, for good cause shown and within the discretion of the court, may be withdrawn at any time before the sentence is adjudged."

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State v. Rodriguez

K.S.A. 2020 Supp. 22-3210(d)(1). In determining whether a defendant has shown good cause, the "courts should consider three factors: '(1) whether the defendant was represented by competent counsel; (2) whether the defendant was misled, coerced, mis- treated, or unfairly taken advantage of; and (3) whether the plea was fairly and understandingly made.'" State v. Barber, 313 Kan. 55, Syl. ¶ 1, 482 P.3d 1113 (2021). But courts can consider other factors in determining whether good cause is shown. State v. Schaefer, 305 Kan. 581, 588, 385 P.3d 918 (2016). An appellate court reviews a district court's good-cause determination for an abuse of discretion. The person claiming an abuse of discretion has the burden to "establish the district court's decision was: (1) arbitrary, fanciful, or unreasonable; (2) based on an error of law; or (3) based on an error of fact." Barber, 313 Kan. at 58. The district court commits an error of fact when its findings are unsupported by substantial competent evidence. See State v. Schaal, 305 Kan. 445, 452, 383 P.3d 1284 (2016). Rodriguez argues that he had a viable defense to the charge of abuse of a child supported by Frazier's testimony. Although this assertion may be true, Rodriguez fails to recognize that the case was remanded for the district court to decide whether the newly discovered evidence produced by Rodriguez was good cause to justify granting his presentence motion to withdraw plea. Alt- hough Frazier testified that it was medically impossible to determine exactly when J.R.'s injuries occurred, she agreed that the injuries would have normally occurred a short time before the hospitalization. Frazier could not rule out that the injuries may have occurred while J.R. was in Rodriguez' care. More importantly, she testified that it was unlikely that the injuries occurred accidently in any of the three prior incidents that F.Q. had described in her testimony at the first hearing. Thus, on this key point, the district court correctly found that Frazier's testimony supported the district court's original ruling. Besides finding that Frazier's testimony failed to establish good cause for Rodriguez to withdraw his plea, the district court found that F.Q. was not a credible witness in her testimony at the first hearing. Frazier offers no legal reason why the district court could not make this credibility finding after the remand hearing

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State v. Rodriguez even though the court had not made the finding after the first hearing. To the extent that Rodriguez argues the district court incorrectly found F.Q. to be lying, this court does not reweigh the evidence or assess witness credibility. See State v. Anderson, 291 Kan. 849, 855, 249 P.3d 425 (2011) (applying this rule in the context of a motion to withdraw plea). And contrary to Rodriguez' assertion, the district court explained why it found F.Q.'s testimony not to be credible. The district court noted that it had heard F.Q.'s testimony at the first hearing and determined that her testimony conflicted with prior statements she made and that she had a bias: her relationship to Rodriguez. Rodriguez spends a portion of his brief discussing the negative findings standard, asserting that the district court disregarded undisputed evidence and demonstrated bias, passion, or prejudice. In support, Rodriguez points to three instances in the record that he claims shows the district court's bias: (1) the judge's reference in the order to his own knowledge and experience in the field of child abuse even though the appellate court had reversed the court's original ruling for this reason; (2) the judge's mention that Rodriguez did not move to dismiss until an effort was made to collect restitution; and (3) the judge's "surprising announcement that it found [F.Q.] was lying, without giving any reason why." Rodriguez again asserts that the undisputed medical evidence showed that it could not be determined when the injury occurred and, thus, he established he was innocent. A negative finding is "any ruling which is merely adverse to the party with the burden of proof . . . and negative findings will not be disturbed on appeal absent proof of an arbitrary disregard of undisputed evidence or some extrinsic consideration such as bias, passion, or prejudice." State v. Marx, 289 Kan. 657, 661, 215 P.3d 601 (2009). Rodriguez points to no case in which the negative findings standard is applied to a motion to withdraw plea. But even assuming the negative findings standard could apply, Rodri- guez fails to show that the district court disregarded undisputed evidence or based its decision on bias, passion, or prejudice. As for the judge's reference in the order to his own knowledge and experience in the field of child abuse, when the statement is read

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State v. Rodriguez in context, the district court was simply explaining why it previously concluded the injuries could not have occurred as F.Q. testified. As for the collection proceeding comment, the district court made this comment in its ruling on the motion to dismiss. Rodri- guez does not show that the comment had any bearing on the court's ruling on the motion to withdraw plea. He also points to the judge's finding that F.Q. was lying as showing bias. But as discussed, this court does not reweigh credibility determinations and the district court explained why it found F.Q. not to be a credible witness. In sum, the district court considered Frazier's testimony and found that it supported the court's original ruling that the three incidents F.Q. testified about could not have caused J.R.'s brain injury. This finding is supported by the record. The district court also found that F.Q. was not a credible witness, and we will not reassess witness credibility. Rodriguez fails to show that the district court abused its discretion in finding he did not establish good cause to withdraw his plea. Based on the evidence presented to the district court, we would reach this same conclusion even if we disregarded the district court's finding that F.Q. was not a credible witness. As a final matter, under a separate subheading titled "Lack of Factual Basis," Rodriguez argues the district court erred in not granting his May 2019 motion to withdraw plea asserting there was no factual basis to support his plea. At the hearing on remand, Rodriguez claimed the 2019 motion should also be considered a presentence motion to withdraw plea because the Court of Ap- peals opinion established that the case procedurally was still prior to sentencing. The district court, in its ruling, found "the [m]andate did not vacate the defendant's sentence, therefore the other issues raised by the defendant premised upon this belief are moot and denied." Rodriguez argues that his motion was not moot, and the district court's decision is thus an error of law and unreasonable. He also asserts the mandate rule did not prevent the district court from deciding his motion because the mandate rule is not jurisdictional, and the court could still decide issues not yet resolved. The State's brief did not respond to Rodriguez' arguments about the 2019 motion.

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State v. Rodriguez

Rodriguez is correct that his motion was not moot. But this court can still affirm the district court's denial as correct for the wrong reason. If a district court reaches the correct result, its decision will be upheld even though it relied on the wrong ground or assigned erroneous reasons for its decision. See Overman, 301 Kan. at 712. The district court appears to have denied the 2019 motion to withdraw plea, in part, because the motion raised a new issue that was beyond the scope of the mandate. The Kansas Supreme Court has discussed the mandate rule in two recent cases. In State v. Soto, 310 Kan. 242, 445 P.3d 1161 (2019), our Supreme Court addressed whether the mandate rule deprived the district court of subject matter jurisdiction to address Soto's motion for a new trial. After a remand for resentencing but before the district court held the resentencing hearing, Soto filed a motion for new trial based on an alleged Brady violation and newly discovered evidence. The district court denied Soto's motion, finding it untimely. On appeal, the State argued that the mandate rule prevented the district court from ruling on Soto's motion. Our Supreme Court disagreed, explaining the mandate rule does not deprive a district court of jurisdiction to address a new issue that surfaces after a mandate is issued. Soto, 310 Kan. at 252. Instead, the mandate rule is "merely designed to enforce the hierarchy of Kansas courts." 310 Kan. at 252. The court then issued a "synthesis" of the mandate rule:

"The rule applies to prevent district court action on remand only when an issue has already been finally settled by earlier proceedings in a case, including issu- ance of the appellate mandate. If a final settlement of an issue has occurred, the district judge is not free to expand upon or revise that history. The mandate rule does not, however, prevent a district judge from doing whatever else is necessary to dispose of a case. This means the district judge must not only do as the mandate directs; he or she must also do what is needed to settle the other outstanding issues that must be decided to complete district court work on the case. Such issues may have been allocated for decision in the district court in the first place and then untouched by appellate proceedings. They may include issues arising from late-breaking facts. [Citations omitted.]" 310 Kan. at 256.

Our Supreme Court then concluded that Soto's motion fell into the late-breaking facts category and the mandate rule would not have prevented the district court from reaching the merits of Soto's motion. 310 Kan. at 256-57. Thus, the Supreme Court remanded

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State v. Rodriguez the matter for further proceedings on Soto's motion. 310 Kan. at 261. In State v. Smith, 312 Kan. 876, 482 P.3d 586 (2021), our Su- preme Court again examined whether certain arguments were outside the scope of a prior remand. Smith's case had been remanded twice; the most recent remand instructed the district court to consider Smith's credibility regarding his argument that he could per- fect an out-of-time appeal under the third Ortiz exception. At the hearing on remand, Smith advanced two new arguments not previously addressed, including that he satisfied the first Ortiz exception. At the hearing, the district court found Smith not to be credible and denied his new arguments as outside the scope of the remand. On appeal, our Supreme Court again explained that the mandate rule reflects the hierarchy of the court system, and the rule did not set broad limits on jurisdiction. 312 Kan. at 884. The court then explained that the prior remand order was "not a general, open-ended mandate" and instead contained a specific order to determine whether Smith was credible and thus fulfilled the third Ortiz exception. 312 Kan. at 885-86. The court found that the district court properly refused to consider Smith's new arguments, holding:

"The mandate rule does not constitute an inflexible jurisdictional barrier to a party's ability to raise a new issue following a remand, but where a remand order is stated in specific terms following deliberate litigation choices by the parties, . . . the parties are not free to endlessly expand on the issues the district court may consider in the absence of new (or newly discovered) facts." 312 Kan. at 886.

There is language in the Soto opinion supporting Rodriguez' argument that the mandate rule did not deprive the district court of subject matter jurisdiction to address the new issue of whether Rodriguez could withdraw his plea based on an insufficient factual basis. That issue had not been raised before and had not been addressed by this court in Rodriguez' first appeal. See Soto, 310 Kan. at 256. But this is not a case, like Soto, where new evidence surfaced after the appellate court mandate was issued. In fact, Ro- driguez' counsel agreed at the remand hearing that the medical records upon which Frazier based her testimony existed at the time of the original plea. Moreover, Rodriguez' assertion that there was

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State v. Rodriguez an insufficient factual basis for the plea has nothing to do with new evidence. We find the Smith opinion to be more on point to Rodriguez' case. Here, the remand order was specific: "The district court's decision to deny the presentence motion to withdraw plea is reversed and remanded with directions to make a decision regarding whether the newly discovered evidence produced by Rodriguez is good cause to justify granting his motion to withdraw plea and to make findings of fact and conclusions of law supported by substantial competent evidence to justify it[s] decision." Rodriguez I, 2014 WL 1096553, at *12. The newly discovered evidence produced by Rodriguez was F.Q.'s testimony about the prior incidents that could have caused J.R.'s brain injury. In district court, Rodriguez made a deliberate tactical decision to argue that his case procedurally was prior to sentencing and that his 2019 motion submitted "additional arguments . . . in support of [his] request to withdraw his plea prior to sentencing." He argued that "good cause" existed to withdraw his plea because there was an insufficient factual basis to support the plea in the first place. Rodriguez' motion arguing an insufficient factual basis for the plea was merely an attempt to raise a completely new issue as part of his presentence motion to withdraw plea under the good- cause standard. This new issue was beyond the specific scope of the remand order, and the district court correctly refused to address the issue for that reason. The district court also correctly found that the mandate from Rodriguez I did not vacate Rodriguez' sentence. Thus, any new motion filed by Rodriguez would need to be addressed as a postsentence motion to withdraw plea. See K.S.A. 2020 Supp. 22- 3210(d)(2) ("To correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw the plea."). But Rodriguez did not present his 2019 motion alleging an insufficient factual basis for the plea as a postsentence motion; instead, he insisted that the argument was part of his presentence motion to withdraw plea under the good-cause standard. We observe that Rodriquez could still file a postsentence motion to withdraw plea alleging an insufficient factual basis for

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State v. Rodriguez the plea, and the district court would need to consider such a motion assuming it is filed within the time limitation or the time limitation is extended. See K.S.A. 2020 Supp. 22-3210(e). But that issue is not before us now, and we offer no opinion on the merits of such a motion.

Affirmed.

VOL. 60 COURT OF APPEALS OF KANSAS 339

City of Wichita v. Trotter

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No. 122,007

CITY OF WICHITA, Appellant, v. ARLANDO TROTTER, Appellee.

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SYLLABUS BY THE COURT

1. JURISDICTION—Question of Law—Appellate Review. Whether jurisdiction exists is a question of law over which appellate courts exercise unlimited review. When the record indicates a lack of jurisdiction, an appellate court has the duty to question jurisdiction on its own initiative. When the record establishes the absence of jurisdiction, an appellate court has the duty to dismiss the appeal.

2. SAME—Standing Issue—Question of Law—Appellate Review. Standing is a component of subject matter jurisdiction. Whether a party has standing to raise an issue is a question of law over which we exercise unlimited review. A party without standing is essentially asking for an advisory opinion, which is beyond our jurisdiction to render.

3. APPEAL AND ERROR—Trial Court May Not Raise Nonjurisdictional Is- sues. It is error for a trial court to raise, sua sponte, nonjurisdictional issues.

4. CONSTITUTIONAL LAW—Challenges to First Amendment Rights—Dis- tinction. A party may challenge a law as expressly violating a specific right under the First Amendment to the United States Constitution. At the same time, a party may also challenge a law as being so overbroad as to infringe upon protected First Amendment rights. But these constitutional challenges are distinct from one another.

5. SAME—Standing—Challenge to Law Alleging Violation of First Amend- ment Right—Requirements. To have standing to challenge a law as expressly violating a specific right under the First Amendment to the United States Constitution, a party must establish that the disputed law affected him or her in some way. To establish that this law expressly violates a specific First Amendment right, a party must prove that the law constitutes a content-based law, not a content-neutral law. A content-based law is a law that regulates expression that the government purposely adopted because of disagreement with the expression. A content-neutral law is a law that the government adopted for a reason other than because of disagreement with the expression being regulated.

6. SAME—Standing—First Amendment Challenge—Establishing Law Is Un- constitutionally Overbroad—Requirements. To have standing to challenge a law as being so overbroad as to infringe upon rights protected by the First Amendment to the United States Constitution, a party need not establish that he or she was personally injured by the disputed law because the mere

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.City of Wichita v. Trotter

existence of the disputed law may cause persons not before the court to refrain from conduct protected by the First Amendment. To establish that this law is unconstitutionally overbroad contrary to the First Amendment, a party must prove (1) that the protected activity is a significant part of the law's target and (2) that there exists no satisfactory method of severing the law's constitutional from its unconstitutional applications. If a party argues that the law prohibits protected First Amendment conduct, not merely protected First Amendment speech, that party must further prove that the law's overbreadth is not only real, but substantial, in relation to the law's plainly legitimate sweep.

7. CITIES AND MUNICIPALITIES—Broad Police Powers—Enactment of Ordinances. Municipalities have broad police powers to enact ordinances regulating or restricting certain activities to promote the health, safety, and welfare of the public.

8. SAME—City of Wichita Ordinance Found Not Unconstitutionally Over- broad in This Case. The City of Wichita's after-hours establishment licensing ordinance, Wichita Municipal Ordinance 3.06.030.A., is not unconstitutionally overbroad as its application does not create a realistic danger of significantly compromising Wichitans' expressive rights under the First Amendment to the United States Constitution.

Appeal from Sedgwick District Court; SETH L. RUNDLE, judge. Opinion filed July 16, 2021. Reversed and remanded with directions.

Jan Jarman, assistant city attorney, of Wichita, for appellant.

Kevin J. Zolotor, of O'Hara & O'Hara LLC, of Wichita, for appellee.

Before GARDNER, P.J., GREEN and BUSER, JJ. GREEN, J.: The City of Wichita (City) appeals the district court's order dismissing Arlando Trotter's municipal charges for violating Wichita Municipal Ordinance (W.M.O.) 3.06.030.A. in operating an unlicensed after-hours establishment and for violating W.M.O. 3.30.030.A. in operating an unlicensed entertainment establishment. The district court dismissed both of Trotter's charges because it determined that the City's after-hours establishment licensing framework was so overbroad that it impermissibly infringed on a person's First Amendment expression rights under the United States Constitution. And on appeal, the parties dispute if the district court dismissed both of Trotter's charges because it determined that the City's after-hours establishment licensing framework expressly violated the First Amendment right to as-

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City of Wichita v. Trotter semble. But regardless of this dispute, the record on appeal establishes that the district court erred when it dismissed Trotter's municipal charges for violating W.M.O. 3.06.030.A. and for violating W.M.O. 3.30.030.A. because the City's after-hours establishment licensing framework was not unconstitutional based on the arguments properly before the district court. As a result, we reverse the district court's dismissal order and remand to the district court for further proceedings consistent with this opinion.

Facts

In fall 2018, the Wichita Police Department cited Trotter with violating W.M.O. 3.06.030.A., for operating an unlicensed "after- hours establishment," and with violating W.M.O. 3.30.030.A., for operating an unlicensed entertainment club. W.M.O. 3.06.030.A. provided that absent certain exceptions, it was "unlawful for any person . . . to own, lease, manage, maintain or operate an after-hours establishment without first obtaining a license." W.M.O. 3.06.020, the provision that defined "after- hours establishment," further stated:

"[A]ny venue for a series of events or ongoing activity or business, occurring alone or as part of another business, to which the public is invited or allowed which is open anytime between midnight and 6:00 a.m., where individuals gather and is not otherwise licensed for the sale of alcoholic beverages or cereal malt beverages or otherwise licensed by the City of Wichita or state of Kansas for a business at that location. This term shall not include hospitals, hotels, motels or other boarding houses nor is it intended to apply to private homes where specifically invited guests gather."

On the other hand, W.M.O. 3.30.030.A. stated that it was "unlawful for any person . . . to own, lease, manage, maintain or operate a[n] . . . entertainment establishment without having first obtained a license from the City Treasurer." Eventually, Trotter challenged his municipal charges in Wich- ita Municipal Court. But the municipal court found Trotter guilty of violating both W.M.O. 3.06.030.A. and W.M.O. 3.30.030.A. For his W.M.O. 3.06.030.A. violation, the municipal court ordered Trotter to pay a $200 fine and to serve 12 months on nonre- porting probation, for which he had an underlying 90-day jail sentence. Conversely, for his W.M.O. 3.30.030.A. violation, the municipal court simply ordered Trotter to pay a $200 fine.

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.City of Wichita v. Trotter

Trotter timely appealed his municipal court convictions to the Sedgwick County District Court. He requested that the district court hold a jury trial on whether he violated W.M.O. 3.06.030.A. and W.M.O. 3.30.030.A. Once the district court docketed Trotter's appeals, Trotter's municipal court convictions were conditionally vacated pending the district court's de novo review of his appeal. See City of Salina v. Amador, 279 Kan. 266, Syl. ¶ 5, 106 P.3d 1139 (2005) (holding that "[a]s an appeal from a municipal court conviction mandates a trial de novo in district court, the appealed conviction before the municipal court must be conditionally vacated"). After this, Trotter moved to dismiss his charge for violating W.M.O. 3.06.030.A. in operating an unlicensed after-hours establishment. In his motion, Trotter contended that his W.M.O. 3.06.030.A. charge should be dismissed because W.M.O. 3.06.30.A. was unconstitutionally vague, unconstitutionally overbroad, and otherwise expressly contrary to his right to assemble under the First Amendment. As for W.M.O. 3.06.030.A.'s alleged vagueness and overbreadth, Trotter seemingly argued that the ordinance was both impermissibly vague and overbroad because it could be interpreted as requiring many people and organizations to obtain licenses to engage in expressive activity between midnight and 6 a.m. In making this argument, Trotter provided many examples of after-hours activities or businesses that he believed could be affected by W.M.O. 3.06.30.A.'s licensing requirement. In particular, he alleged that churches holding masses and serving commun- ion between midnight and 6 a.m. would need a license under W.M.O. 3.06.030.A. And he implied that W.M.O. 3.06.030.A. was unconstitutionally vague and overbroad because W.M.O. 3.06.020.A.'s definition of "after-hours establishment" included a nonexhaustive list of factors, that is, activities done between midnight and 6 a.m. at a specific venue. For example, if two people were present at the venue, this would result in the City deeming the venue an after-hours establishment. Also, although Trotter never cited authority to support his contention that W.M.O. 3.06.030.A. expressly violated his First Amendment right to assemble, he argued that W.M.O. 3.06.030.A. expressly violated this right because it sought to "reg-

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City of Wichita v. Trotter ulate persons who 'gather.'" In making this argument, Trotter em- phasized that W.M.O. 3.06.020.A. defined "after-hours establishment" as venues "where individuals gather." (Emphasis added.) He argued that by including this language in W.M.O. 3.06.020.A., the City sought to create "a blanket prohibition" against people assembling after hours. On the other hand, the City argued that the district court should deny Trotter's motion to dismiss because Trotter had failed to establish that W.M.O. 3.06.030.A. was unconstitutional. It argued that W.M.O. 3.06.030.A. was not unconstitutionally vague because its plain language sufficiently put Wichitans on notice about the City's after-hours establishment licensing scheme. It further argued that W.M.O. 3.06.030.A. was not unconstitutionally overbroad because the ordinance did not prohibit any conduct that was not already illegal. Also, it argued that W.M.O. 3.06.030.A. did not expressly violate the First Amendment right to assemble because it merely regulated how, where, and when an expression could occur—that this served a substantial governmental interest of minimizing the safety and nuisance risks associated with after- hours establishments. In making this argument, the City pointed out caselaw from many jurisdictions indicating that a licensing ordinance does not expressly violate a person's First Amendment right to assemble if it is content-neutral and narrowly tailored to serve a substantial governmental interest. After the City filed its response, the district court held a hearing on Trotter's appeal. At the start of the hearing, the district court granted the City's pending motion to consolidate Trotter's appeals. It then considered the merits of Trotter's motion to dismiss. The parties repeated the arguments made in their respective filings. At the end of the hearing, the district court took the parties' arguments under advisement. But the next day, the district court issued a memorandum on Trotter's motion to dismiss. In its memorandum, the district court sua sponte concluded that Trotter lacked standing to challenge W.M.O. 3.06.030.A. as unconstitutionally vague. As for his remaining constitutional challenges, although the district court determined that Trotter had standing to challenge W.M.O.

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3.06.030.A. as unconstitutionally overbroad and as expressly contrary to the First Amendment right to assemble, it further noted that it believed Trotter's case "involves more constitutional issues than those raised, at least directly, by the parties." It speculated that W.M.O. 3.06.030.A. could be challenged as violating a person's right against unreasonable searches under the Fourth Amendment to the United States Constitution because W.M.O. 3.06.040.B.10. required persons with after-hours establishment licenses to allow City personnel inside their establishment for inspection at any time. Relying on this speculation, the court ended its memorandum by giving the parties the opportunity to submit supplemental briefing on the Fourth Amendment's application to W.M.O. 3.06.030.A. Shortly afterwards, Trotter filed a supplemental brief addressing the Fourth Amendment's application to W.M.O. 3.06.030.A. In his supplemental brief, Trotter cited no authority on the Fourth Amendment's application to licensing ordinances. Even so, Trot- ter asserted that W.M.O. 3.06.030.A. violated the Fourth Amend- ment right against unreasonable searches since after-hours establishment licensees must consent to inspections of their establishment by City personnel at any time to obtain a license. The district court granted Trotter's motion to dismiss. In doing so, the court first repeated its previous ruling that Trotter lacked standing to challenge W.M.O. 3.06.030.A. as unconstitutionally vague. After repeating this ruling, the district court determined that Trotter's remaining arguments about W.M.O. 3.06.030.A. being unconstitutionally overbroad and about W.M.O. 3.06.030.A. expressly violating the First Amendment right to assemble were legally identical: "Because the challenge of overbreadth in this case is based on First Amendment arguments[,] including free exercise of religion, free assembly, and free speech, the defendant's two remaining objections under the First Amendment and for overbreadth are construed as a single challenge." Next, the district court reviewed certain provisions of Chapter 3.06—the chapter of the Wichita Municipal Code addressing after-hours establishments—and noted that there is little Kansas caselaw addressing constitutional challenges to licensing ordinances. Lastly, the district court provided the following analysis in support of its decision to dismiss Trotter's charges for operating

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City of Wichita v. Trotter an unlicensed after-hours establishment in violation of W.M.O. 3.06.030.A. and for operating an unlicensed entertainment establishment in violation of W.M.O. 3.30.030.A.:

". . . [A] brief overview of a significant instance of behavior that is Consti- tutionally immune from criminalization will provide some perspective on why the ordinance challenged in this case is unconstitutional. In 1965, the U.S. Su- preme Court dealt with the Bill of Rights to the U.S. Constitution in the case of Griswold v. Connecticut, 381 U.S. 479[, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965)]. The Court discussed the rights of association contained in the First Amendment, the Third Amendment right against having soldiers quartered in one's home, the Fourth Amendment's protection of security in one's person, house, papers, and effects, and the Fifth Amendment right against self-incrimination. Some court cases dealing with these rights were then said to 'suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.' With no intention of irony apparent, the Court then struck down a state law against the sale of products sold for the specific purpose of preventing giving life. (A penumbra is a surrounding area or periphery of uncertain extent. Emanation means the act of coming or flowing forth from something.) This was all in the name of Privacy and emanations of same into the penumbras of the assorted first ten amendments cited. The penumbras bloomed wider in 1973. Roe v. Wade, 410 U.S. 113[, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973)]. In North America, 36 million people live in Canada, 330 million in the U.S., and 126 million in Mexico. Since 1973, 61 million people have been aborted, by Constitutional right, in the United States. In other words, this historically criminal behavior has accounted for the dispatch of nearly twice the population of Canada, nearly half the population of Mexico. For every 5 people currently living in the United States, there is a sixth person who has died by abortion over the last 45 years. These numbers are readily verifiable and not disputed by respected voices on either side of the issue. This is the issue marking the limit of behavior that cannot be touched by government, the highest water line up the beach from the sea change about what laws a people can and cannot pass through a State legislature. . . . . "The parties argue about the application of the ordinance to the free exercise of religion in churches and by analogy to cases dealing with prostitution under its various Also-Known-As-es. In a dispute about overbreadth, these are relevant arguments. The court is, however, more taken aback by the criminalization of peaceable and otherwise lawful conduct in private homes. The ordinance creates, unconstitutionally, the following problems. (1) People who live in non-residentially zoned areas of Wichita are excluded from the provision exempting residential gatherings in private homes. Thus, the property rights of people in their homes in Wichita are made unequal without sufficient justification, or even a self-evident purpose. Assuming a Wichitonian [sic] otherwise complies with the ordinance, if he is a homeowner/renter in an exclusively residential

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part of Wichita[,] then he can have recurring unlicensed gatherings after midnight, but if he resides in a not exclusively residential part of Wichita[,] he is committing crime by doing so. (2) Wichita has at least two residential colleges. Dormitory occupants could not regularly gather in a dormitory room—for any purpose—if the gathering passed midnight. It is not that they could not gather without a license. It is that they cannot gather at all because they are under twenty-one and are prohibited from obtaining a license. Example: Sophomore Sammy hosts in his dormitory room video game playing every Friday night until 3:30 a.m., or more realistically, every single night of the week. This is a crime under the ordinance. Another example, perhaps less realistic, is a group of students gathering to study regularly in a dormitory room until 12:30 a.m. This is also a crime under the ordinance. (3) Wichita homeowners and renters under the age of twenty-one (including married persons) are, in non-exclusively residential areas of Wich- ita, prohibited from hosting regular gatherings, even if otherwise peaceful and lawful, in the privacy of their residences if the gathering runs over the midnight hour or commences prior to 6:00 a.m. (4) Any Wichitonian [sic] who, in his private residence, teaches piano les- sons, irons clothes for hire, bakes pies or decorates cakes for sale, or conducts any other commercial or business activity is committing crime by regularly hosting guests if the gatherings run pas[t] midnight. (5) A Wichita resident decides to get the license so that he can host friends for a card game every Friday night until 2:00 a.m. Holding the license puts the resident in the position of a parolee (convict) subject to a parole agreement. 'A parolee who signs a parole agreement allowing sus- picionless residential searches by his or her parole officer does not have a legitimate expectation of privacy in his or her home, and the State's interest in supervising parolees to prevent recidivism and promote reintegration is substantial.' State v. Toliver, 307 Kan. 945, 417 P.3d 253 (2018).

"Returning to the privacy penumbras radiating from the Bill of Rights, a Constitution that prohibits laws criminalizing making a market in that behavior also declares that this ordinance casts too wide a net. The examples above of behavior criminalized by the ordinance are examples of Constitutionally protected behaviors. It is not needed to multiply and expostulate every other protected behavior criminalized by the ordinance; these are sufficient to show that the law is unconstitutionally overbroad." [Citations omitted.]"

The City timely appealed the district court's order dismissing Trotter's charges for violating W.M.O. 3.06.030.A. and W.M.O. 3.30.030.A. Yet, after the City filed its appeal but before it docketed its appeal with us, the district court amended its order to address our Supreme Court's decision in Meats v. Kansas Dept. of Revenue,

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310 Kan. 447, 447 P.3d 980 (2019). This case was decided the same day when the district court issued its initial dismissal order. In Meats, our Supreme Court held that a statutory provision requiring vehicle drivers seeking administrative review of their driver's license suspensions to pay a $50 fee was unconstitutional because it lacked reasonable accommodations for indigent drivers to obtain review of their license suspensions contrary to those indigent drivers' procedural due process rights under the Fourteenth Amendment to the United States Constitution. 310 Kan. at 450. When amending its order in this case, the district court interpreted this holding to mean that "the City's ordinance may also be facially unconstitutional because it does not provide an indigency waiver for the license fee."

What issues are properly before us?

On appeal, the City's primary arguments are that the district court erred in granting Trotter's motion to dismiss because W.M.O. 3.06.030.A. is not unconstitutionally overbroad and does not otherwise expressly violate the First Amendment right to assemble. Nevertheless, the City asserts that before we consider the merits of its primary arguments, we must first consider if the district court erred in determining that Trotter had standing to challenge W.M.O. 3.06.030.A. as unconstitutionally overbroad or as expressly contrary to the First Amendment right to assemble. The City contends that Trotter lacked standing before the district court to challenge W.M.O. 3.06.030.A. as unconstitutionally overbroad and as expressly contrary to the First Amendment right to assemble because, before the district court, Trotter never established that his First Amendment rights were violated by W.M.O. 3.06.030.A. Also, the City argues that the district court erred when it amended its dismissal order to address our Supreme Court's decision in Meats. The City essentially contends that Trotter lacked standing to argue that W.M.O. 3.06.030.A.'s lack of indigency waiver violated his due process rights because Trotter never applied for an after-hours establishment license. Trotter responds that we should decline to consider the City's contention that he lacked standing to challenge W.M.O. 3.06.030.A. as unconstitutionally overbroad. But Trotter concedes

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.City of Wichita v. Trotter that if he had standing to challenge W.M.O. 3.06.030.A. as unconstitutionally overbroad, this involves a jurisdictional issue that we may consider for the first time on appeal. Trotter, however, argues that we should ignore the City's standing argument because the City never made it before the district court. As to his standing to challenge W.M.O. 3.06.030.A. as expressly violating the First Amendment right to assemble, Trotter agrees that we should not review this issue. According to Trotter, this issue is not properly before us because the district court "did not make an alternative finding that the City's ordinance was unconstitutional based upon the claim that it violated the Right to Assemble." Also, although he does not explain why, Trotter assumes that in its dismissal order, the district court determined that W.M.O. 3.06.030.A. violated the Fourth Amendment right against unreasonable searches. Lastly, Trotter argues that even though the district court sua sponte amended its dismissal order to address our Supreme Court's decision in Meats, we should still uphold the district court's ruling that W.M.O. 3.06.030.A. was unconstitutional for lacking an indigency waiver since this provision does, in fact, lack an indigency waiver. Because of the jurisdictional problems raised by the City and indicated in the record on appeal, at oral arguments, we gave the parties the opportunity to submit supplemental briefing on the issue of standing. In its supplemental brief, in addition to repeating its argument—that Trotter lacks standing to challenge W.M.O. 3.06.030.A. as unconstitutionally overbroad or as violative of his due process rights—the City further argues that Trotter lacks standing to challenge W.M.O. 3.06.030.A. as contrary to his Fourth Amendment rights. As with its procedural due process argument, the City contends that Trotter lacks standing to challenge W.M.O. 3.06.030.A.'s requirement that after-hours establishment licensees must consent to inspections by City personnel as contrary to his Fourth Amendment right against unreasonable searches because Trotter never applied for an after-hours establishment license. In his supplemental brief, Trotter outlines why he believes we have jurisdiction to consider whether W.M.O. 3.06.030.A. is unconstitutionally overbroad. He then argues that as long as he has

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City of Wichita v. Trotter standing to challenge W.M.O. 3.06.030.A. as unconstitutionally overbroad, this court has jurisdiction to consider this issue as well as whether W.M.O. 3.06.030.A. facially violates the First Amend- ment's right to assemble and the Fourth Amendment's right against unreasonable searches. According to Trotter, the preceding issues are not "distinct issues." Trotter additionally argues that "regardless of how [we] have determined the issue of standing," we have jurisdiction to consider whether W.M.O. 3.06.030.A.'s lack of indigency waiver violated his procedural due process rights because the City did not argue that he lacked standing to make this argument before the district court.

Do we lack jurisdiction to consider if W.M.O. 3.06.030.A. is unconstitutionally vague?

K.S.A. 2020 Supp. 60-2103(h) states that an appellee that desires to have adverse rulings reviewed by an appellate court must file a notice of cross-appeal no later than 21 days after the appellant filed his or her notice of appeal. The appellee's failure to cross-appeal in accordance with K.S.A. 2020 Supp. 60-2103(h) constitutes a jurisdictional bar that prevents us from reviewing his or her complaints about a district court's order. Lumry v. State, 305 Kan. 545, 553-54, 385 P.3d 479 (2016). Also, whether we have jurisdiction to review a specific issue constitutes a question of law that we may raise on our own motion. Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 459, 447 P.3d 959 (2019). As previously noted, in his motion to dismiss, Trotter asked the district court to dismiss his charge for violating W.M.O. 3.06.030.A. because W.M.O. 3.06.030.A. was unconstitutionally vague. In granting Trotter's motion to dismiss, though, the district court ruled that Trotter lacked standing to challenge W.M.O. 3.06.030.A. as unconstitutionally vague because he never "made vagueness objections as applied to himself personally." Although Trotter has not tried to argue that W.M.O. 3.06.030.A. is unconstitutionally vague on appeal, it is important to note that Trotter has not filed a cross-appeal questioning any of the district court's rulings. As a result, we lack jurisdiction to consider any of the district court's adverse rulings against Trotter, including its ruling that he lacked standing to challenge W.M.O.

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3.06.030.A. as unconstitutionally vague. See Lumry, 305 Kan. at 553-54. Thus, even if Trotter had standing to challenge W.M.O. 3.06.030.A. as unconstitutionally vague, this issue is not properly before us.

Do we lack jurisdiction to consider if W.M.O. 3.06.030.A. violates the Fourth Amendment right against unreasonable searches by requiring licensees to consent to inspections by City personnel?

"The requirement that a party have standing is a component of subject matter jurisdiction, which may be raised at any time, including upon the court's own motion." Creecy, 310 Kan. at 459. Whether a party has standing to raise an issue is a question of law over which we exercise unlimited review. A party without standing is essentially asking for an advisory opinion, which is beyond our jurisdiction to render. 310 Kan. at 460. Also, if the district court lacked jurisdiction to consider an issue, an appellate court also lacks jurisdiction to consider that issue. When the record establishes the absence of jurisdiction, an appellate court has the duty to dismiss the appeal. State v. McCoin, 278 Kan. 465, 467- 68, 101 P.3d 1204 (2004). As previously noted, before the district court granted Trotter's motion to dismiss, it sua sponte questioned whether W.M.O. 3.06.030.A. violated the Fourth Amendment right against unreasonable searches. And after sua sponte raising this issue, the district court provided both Trotter and the City the opportunity to address the Fourth Amendment's application to W.M.O. 3.06.030.A. When given this opportunity, Trotter filed supplemental briefing in which he contended that W.M.O. 3.06.030.A. expressly violated the Fourth Amendment's right against unreasonable searches. To support this argument, Trotter provided hypothetical examples of how W.M.O. 3.06.030.A. could be applied in a manner to infringe upon a person's Fourth Amendment right against unreasonable searches. Thus, he never argued that W.M.O. 3.06.030.A. expressly violated his Fourth Amendment right against unreasonable searches. Then, in its order granting Trotter's motion to dismiss, the district court noted that in Gris- wold v. Connecticut, 381 U.S. 479, 484, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), the United States Supreme Court "discussed" the

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Fourth Amendment's right against unreasonable searches. Alt- hough the district court never explicitly ruled that W.M.O. 3.06.030.A. expressly violated the Fourth Amendment's right against unreasonable searches, a liberal reading of the district court's order indicates that it made this ruling based on its hypothetical applications of W.M.O. 3.06.030.A. on individuals' privacy rights. In its appellant's brief, the City never takes issue with the district court's errant decision to sua sponte raise an argument in support of Trotter's dismissal motion. See Huffmier v. Hamilton, 30 Kan. App. 2d 1163, 1166, 57 P.3d 819 (2002) (holding that "[i]t is error for a trial court to raise, sua sponte, nonjurisdictional issues"). Instead, the City first addresses the district court's apparent ruling that W.M.O. 3.06.030.A. violates the Fourth Amendment's right against unreasonable searches in its supplemental brief, maintaining that Trotter lacks standing to make this argument because he never applied for an after-hours establishment license. In his appellee's brief, Trotter assumes without explanation that the district court granted its motion to dismiss, in part, because W.M.O. 3.06.030.A. violated the Fourth Amendment. He concludes that we should affirm the district court's ruling because the City's after-hours establishment licensing framework requires persons to consent to searches of their after-hours establishments to obtain a license. See W.M.O. 3.06.040.B.10. According to Trotter, by requiring this consent, W.M.O. 3.06.030.A. violates the Fourth Amendment right against unreasonable searches because it requires individuals to waive their Fourth Amendment rights to obtain an after-hours establishment license. Also, Trotter contends in his supplemental brief that he has standing to challenge W.M.O. 3.06.030.A. as violating the Fourth Amendment because W.M.O. 3.06.030.A. is unconstitutionally overbroad. But even if we were to assume for argument's sake that the district court determined that W.M.O. 3.06.030.A. expressly violated the Fourth Amendment right against unreasonable searches, it is readily apparent that the district court lacked jurisdiction to make this determination. Particularly, this is not Trotter's first appeal to our court. In City of Wichita v. Trotter, 58 Kan. App. 2d 781, 475 P.3d 365 (2020) (Trotter), Trotter argued that W.M.O.

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3.30.030.A.'s provision requiring a license for an entertainment establishment was unconstitutionally vague, unconstitutionally overbroad, and otherwise directly contrary to the First Amend- ment and the Fourth Amendment. Yet, the Trotter court rejected Trotter's argument that W.M.O. 3.30.030.A. violated the Fourth Amendment right against unreasonable searches and held that Trotter lacked standing to make this argument:

". . . Trotter's . . . claim fails for a . . . fundamental reason: Trotter never applied for an entertainment-establishment license. He was never subject to the regulatory investigations he now challenges and has no standing to contest the reasonableness of those regulatory requirements. See Creecy v. Kansas Dept. of Revenue, 310 Kan. 454, 461, 447 P.3d 959 (2019) (standing requires a person to '"show a cognizable injury and establish a causal connection between the injury and the challenged conduct"'). Any decision we might render regarding the [Wichita Municipal] Code's inspection requirements would have no impact on Trotter's conviction for operating an entertainment establishment without a license. "A party who lacks standing requests an advisory opinion, which is beyond our jurisdiction to render. 310 Kan. at 460. Accord City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278, 283-84, 121 S. Ct. 743, 148 L. Ed. 2d 757 (2001) (declining to reach challenge to city's licensing framework for sellers of sexually explicit materials when business 'neither now pursues nor currently ex- presses an intent to pursue a license under Waukesha law'). Thus, we do not reach the merits of Trotter's challenge to the licensing framework's inspection requirements." 58 Kan. App. 2d at 801.

As in Trotter, Trotter here needed to apply for an after-hours establishment license as a condition precedent before he could properly challenge the City's specific rule—that an individual must consent to inspections by City personnel to obtain an after- hours establishment license—to argue a violation of his Fourth Amendment right against unreasonable searches. Because Trotter never applied for an after-hours establishment license, he suffered no cognizable injury from the City inspection rule he now com- plains about. As a result, before the district court, Trotter lacked standing to challenge W.M.O. 3.06.030.A., or more broadly the City's after-hours establishment licensing framework, as expressly violating his or anyone else's Fourth Amendment right against unreasonable searches. It therefore follows that the district court lacked jurisdiction to consider, let alone rule, that W.M.O.

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3.06.030.A. violated the Fourth Amendment right against unreasonable searches. See Creecy, 310 Kan. at 459-60; McCoin, 278 Kan. at 468. Also, Trotter's contention that he has standing to challenge W.M.O. 3.06.030.A. as violating the Fourth Amendment because he has standing to challenge W.M.O. 3.06.030.A. as unconstitutionally overbroad is patently meritless. Simply put, we must employ different standing tests when deciding whether a law is unconstitutionally overbroad in violation of the First Amendment's free expression right or whether a law is facially violative of the Fourth Amendment's right against unreasonable searches. See State v. Williams, 299 Kan. 911, 919, 329 P.3d 400 (2014) (explaining that people have standing to challenge a law as unconstitutionally overbroad contrary to the First Amendment's expression rights without ever proving that they were personally injured by the disputed law); Trotter, 58 Kan. App. 2d at 801 (explaining that people have standing to challenge a law contrary to the Fourth Amendment's right against unreasonable searches only by showing they suffered a cognizable injury from the application of the disputed law). As a result, even under the assumption that the district court determined that W.M.O. 3.06.030.A. expressly violated the Fourth Amendment right against unreasonable searches, the district court's determination is void as a matter of law because it lacked jurisdiction to do so. For this reason, the issue of whether W.M.O. 3.06.030.A. violated the Fourth Amendment's right against unreasonable searches is not properly before us.

Do we lack jurisdiction to consider if W.M.O. 3.06.030.A. violates the Fourteenth Amendment right to procedural due process?

Whether a party has standing is a component of subject matter jurisdiction, which an appellate court may consider on its own motion while exercising unlimited review. Creecy, 310 Kan. at 459- 60. When the district court amended its initial order, it sua sponte questioned if our Supreme Court's holding in Meats—that the statutory provision requiring drivers seeking administrative review of

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.City of Wichita v. Trotter their driver's license suspensions to pay a $50 fee was unconstitutional for lacking an indigency waiver—meant that W.M.O. 3.06.030.A. was also unconstitutional for lacking an indigency waiver. Indeed, in its amended order, the district court speculated as follows: "Based on the Meats decision, it would appear that the City's ordinance may also be expressly unconstitutional because it does not provide an indigency waiver for the license fee." (Emphasis added.) Thus, in its amended order, the district court never explicitly held that the City's after-hours establishment licensing framework was unconstitutional based on a lack of indigency waiver. Nor did it explicitly state what part of the United States Constitution required the City's after-hours licensing framework to have an indigency waiver. In addressing the district court's discussion of the Meats decision, the City never explicitly takes issue with the district court's errant decision to sua sponte raise an argument in support of Trot- ter's motion to dismiss. See Huffmier, 30 Kan. App. 2d at 1166 (holding that "[i]t is error for a trial court to raise, sua sponte, nonjurisdictional issues"). Also, on appeal, neither party recognizes that in its amended order, the district court merely speculated that W.M.O. 3.06.030.A. violated the Fourteenth Amendment's Due Process Clause. Instead, both parties assume that the district court ruled that W.M.O. 3.06.030.A. violated the Fourteenth Amend- ment's Due Process Clause without ever recognizing the speculative nature of the district court's amended order, which made it akin to an advisory opinion. See State ex rel. Schmidt v. City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016) (holding that "Kansas courts do not issue advisory opinions"). Still, the City does question the district court's reliance on Meats because unlike the vehicle driver in Meats, Trotter never applied for an after-hours establishment license. In short, the City contends that the district court should have declined to consider if W.M.O. 3.06.030.A. violated the Fourteenth Amendment's Due Process Clause because Trotter's failure to apply for an after-hours establishment license meant that his procedural due process rights were never affected by the City's after-hours establishment licensing framework. And this, in turn, meant that Trotter lacked standing to challenge W.M.O. 3.06.030.A. as expressly contrary to the

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Fourteenth Amendment's Due Process Clause because his personal Fourteenth Amendment due process rights were not impli- cated by the City's after-hours establishment licensing framework lacking an indigency waiver. As noted, in his supplemental brief, Trotter simply contends that "regardless of how [we] have determined the issue of standing," we have jurisdiction over this issue because the City never argued that he lacked standing to challenge W.M.O. 3.06.030.A. as violating his Fourteenth Amendment due process rights before the district court. Here, it is readily apparent that even if we were to ignore all the other problems with the district court's decision to sua sponte speculate if W.M.O. 3.06.030.A. violated the Fourteenth Amend- ment's Due Process Clause, the district court lacked jurisdiction to engage in this speculation. As stressed by the City, because Trotter never applied for an after-hours establishment license, he suffered no cognizable injury based on the City's after-hours establishment licensing framework lacking an indigency waiver for the $400 fee necessary to obtain the annual license. See Creecy, 310 Kan. at 461; W.M.O. 3.06.050.A. It therefore follows that the district court lacked jurisdiction to speculate if W.M.O. 3.06.030.A. violated Trotter's or anyone else's due process rights under the Four- teenth Amendment. See Creecy, 310 Kan. at 459 (holding that a party must have standing for a court to obtain subject matter jurisdiction). Also, Trotter's contention that this court has jurisdiction to consider this issue simply because the City did not challenge his standing before the district court is entirely unpersuasive for multiple reasons, including because we have the authority to question our own jurisdiction even when the parties fail to recognize a jurisdictional problem either before the district court or on appeal. See Creecy, 310 Kan. at 459. As a result, we also lack jurisdiction to consider if the City's after-hours establishment licensing framework violates Trotter's or anyone else's rights under the Fourteenth Amendment. See McCoin, 278 Kan. at 468 (holding that if the district court lacked jurisdiction to enter an order, this court also lacks subject matter jurisdiction over the appeal). So, we hold that the district court lacked jurisdiction to issue any ruling about the Fourteenth Amendment's application to the City's after-hours establishment licensing framework. In turn, to

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.City of Wichita v. Trotter the extent the district court's speculative language constituted a ruling that W.M.O. 3.06.030.A. was unconstitutional for violating the Fourteenth Amendment's Due Process Clause as applied to Trotter or anyone else, this speculative holding is void as a matter of law. Thus, any issues on the Fourteenth Amendment's application to the City's after-hours establishment licensing framework are not properly before us.

Do we have jurisdiction to consider the district court's decision to dismiss Trotter's charge for operating an unlicensed entertainment club contrary to W.M.O. 3.30.030.A. based on its ruling that W.M.O. 3.06.030.A. was unconstitutional?

As previously noted, "[i]t is error for a trial court to raise, sua sponte, nonjurisdictional issues." Huffmier, 30 Kan. App. 2d at 1166. Kansas appellate courts, in contrast, may sometimes sua sponte raise a previously unraised issue. In particular, appellate courts may sua sponte raise an issue not otherwise addressed by the parties when "consideration of the new issue is necessary to serve the ends of justice or to prevent a denial of fundamental rights." State v. Puckett, 230 Kan. 596, 600-01, 640 P.2d 1198 (1982). In such circumstances, appellate courts should also afford the parties "a fair opportunity" to address the newly raised issue. 230 Kan. at 601. In this case, it is an undisputed fact that Trotter appealed his municipal court conviction for violating W.M.O. 3.06.030.A. and his municipal court conviction for violating W.M.O. 3.30.030.A. to the district court. In his motion to dismiss, although Trotter mentioned W.M.O. 3.30.030.A.—the provision prohibiting the operation of an unlicensed entertainment establishment—he did so only to support his argument that W.M.O. 3.06.030.A. was unconstitutionally vague, unconstitutionally overbroad, and otherwise expressly contrary to the First Amendment right to assemble. Accordingly, in his motion to dismiss, Trotter never argued that his charge for violating W.M.O. 3.30.030.A. should be dismissed because it was unconstitutional. In fact, although Trotter appealed his municipal court conviction for operating an unlicensed entertainment establishment contrary to W.M.O. 3.30.030.A., the record on appeal contains no motions in which Trotter challenged the constitutional validity of W.M.O. 3.30.030.A.

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Nevertheless, when the district court granted Trotter's motion to dismiss, it inexplicably dismissed both of Trotter's municipal charges with prejudice based on its determination that W.M.O. 3.06.030.A. was unconstitutional. Because the district court's order never even notes that Trotter's other charge was for operating an unlicensed entertainment establishment contrary to W.M.O. 3.30.030.A., it seems that the district court was simply unaware that Trotter had been charged with two distinct municipal ordinance violations. At oral arguments, we provided the parties with a fair opportunity to address this apparent problem since neither party had addressed the district court's decision to dismiss Trotter's charge for violating W.M.O. 3.30.030.A. based on W.M.O. 3.06.030.A.'s alleged unconstitutionality in their respective briefs. When given this opportunity, Trotter's counsel suggested that we need not address the district court's decision because the district court's order only addressed the constitutional validity of W.M.O. 3.06.030.A., not W.M.O. 3.30.030.A. Also, although he never explained how the issue had been resolved, Trotter's counsel asserted that this court need not address the district court's decision to dismiss Trot- ter's W.M.O. 3.30.030.A. charge based on W.M.O. 3.06.030.A.'s alleged unconstitutionality because this clear error had somehow already been resolved. Yet, outside of this bald assertion, Trotter has not provided us with anything proving that this issue has already been resolved by the district court. Also, there is certainly nothing in the record on appeal indicating that the district court corrected its decision to dismiss Trotter's W.M.O. 3.30.030.A. charge based on W.M.O. 3.06.030.A.'s alleged unconstitutionality. Therefore, we decline to accept this bald assertion. Most importantly, because the district court unquestionably lacked statutory authority to dismiss Trotter's charge for violating 3.30.030.A., we hold that the dismissal of Trotter's charge for violating W.M.O. 3.30.030.A. was improper. And because we have determined that consideration of this issue is necessary to serve the ends of justice, we exercise our jurisdiction to sua sponte consider the district court's errant dismissal of Trotter's W.M.O.

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3.30.030.A. charge based on W.M.O. 3.06.030.A.'s alleged unconstitutionality.

Did the district court fail to properly analyze (1) if W.M.O. 3.06.030.A. is unconstitutionally overbroad and (2) if W.M.O. 3.06.030.A. expressly violates the First Amendment right to assemble?

Once again, whether a party has standing is a component of subject matter jurisdiction, which an appellate court may consider on its own motion while exercising unlimited review. Creecy, 310 Kan. at 459-60. Similarly, "[w]hether an ordinance violates the Constitution presents a question of law over which an appellate court exercises plenary review." Trotter, 58 Kan. 781, Syl. ¶ 2. Also, whether the district court applied the law properly constitutes a question of law over which an appellate court exercises plenary review. Becker v. Knoll, 291 Kan. 204, 212, 239 P.3d 830 (2010). The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." (Emphasis added.) U.S. Const. amend. I. A person may challenge a law as expressly violating a specific right under the First Amendment. At the same time, a person may also challenge a law as being so overbroad as to infringe upon First Amendment rights. Significantly, although the parties and the district court generally state that Trot- ter challenged W.M.O. 3.06.030.A. as being unconstitutionally overbroad, the overbreadth doctrine is specifically tied to a person's First Amendment rights. See 16 C.J.S. Constitutional Law § 169 (explaining that "[t]he overbreadth doctrine authorizes a litigant to assert the facial unconstitutionality of a statute involving a First Amendment freedom which creates a chilling effect on the freedom of expression"). In any case, different rules guide a court's analysis when considering an argument that a law expressly violates the First Amendment and when considering an argument that a law is so broad that it impermissibly punishes conduct protected under the First Amendment.

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To begin with, these challenges have different standing tests. A person has standing to argue that a law expressly violates a specific right under the First Amendment as long as he or she shows that the disputed law affected him or her. See Williams, 299 Kan. at 919; Merryfield v. Sullivan, 50 Kan. App. 2d 313, 314, 324 P.3d 1132 (2014). Conversely, a person has standing to challenge a law as unconstitutionally overbroad for infringing upon First Amend- ment rights without ever proving that he or she was personally injured by the disputed law. Williams, 299 Kan. at 919. This broader standing test applies when considering overbreadth challenges because the very existence of an unconstitutionally overbroad statute may cause a person not before the court to refrain from engaging in activities protected under the First Amendment. 299 Kan. at 919. Likewise, the underlying test for determining whether a law expressly violates the First Amendment right to assemble is different from the test for determining if a law is so broad that it infringes upon First Amendment rights. Cases concerning the First Amendment right to assemble usually involve a government limiting people from assembling in a public forum. Nonetheless, people may challenge the application of a licensing framework as a previous restraint on their First Amendment rights of expression. See FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223, 110 S. Ct. 596, 107 L. Ed. 2d 603 (1990) (holding that a licensing ordinance specifically regulating sexually oriented businesses was an unconstitutional prior restraint on licensees' First Amendment rights); see also Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56, 108 S. Ct. 2138, 100 L. Ed. 2d 771 (1988) (holding that "when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license"). In these cases, courts employ the same rules to analyze the constitutionality of a law regardless of whether a person is challenging a law as violative of his or her First Amendment right to free speech or is challenging the law as violative of his or her First Amendment right to assemble. See Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293, 104 S. Ct. 3065, 82 L.

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Ed. 2d 221 (1984). But the specific test a court should use to determine if a law expressly infringes upon people's First Amend- ment expression rights changes depending on if the disputed law is content-based or content-neutral. A content-based law is a law that regulates expression that the government purposely adopted because of disagreement with the expression. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746, 105 L. Ed. 2d 661 (1989). When analyzing content- based laws, a court should uphold the law if the government establishes "that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end." Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.S. 37, 45, 103 S. Ct. 948, 74 L. Ed. 2d 794 (1983); see also Trotter, 58 Kan. App. 2d at 790-91 (holding that content-based restrictions will be upheld only "when the government proves they are '"necessary to serve a compelling state interest' and 'narrowly drawn to achieve that interest"'"). Alternatively, a content-neutral law, commonly called a time, place, and manner regulation, is a law that the government adopted for a reason other than because of disagreement with the expression being regulated. Indeed, "[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others." Ward, 491 U.S. at 791. When analyzing a content- neutral law, a court should uphold the law if the government establishes that the law is "narrowly tailored to serve a significant governmental interest" and otherwise "leave[s] open ample alternative channels for communication of the information." Clark, 468 U.S. at 293; see also Trotter, 58 Kan. App. 2d at 791 (holding that "'time, place, or manner' restrictions, will be upheld if they are 'justified without reference to the content of the regulated speech,' are 'narrowly tailored to serve a significant governmental interest,' and 'leave open ample alternative channels for communication of the information'"). Also, when analyzing a content- neutral law that places a prior restraint upon a person, like obtaining a license before engaging in some form of expression, a court should also consider "whether there are reasonable and definite standards to guide the licensor's determination, as well as a reasonable and meaningful framework to appeal the [government's]

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City of Wichita v. Trotter decisions." Trotter, 58 Kan. App. 2d at 794 (citing Thomas v. Chi- cago Park Dist., 534 U.S. 316, 324, 122 S. Ct. 775, 151 L. Ed. 2d 783 [2002]). When reviewing a party's argument that a law is unconstitutionally overbroad, however, we employ a different test. Specifi- cally, "[t]he party attacking the constitutionality of a statute on the basis of overbreadth must establish '(1) the protected activity is a significant part of the law's target, and (2) there exists no satisfactory method of severing that law's constitutional from its unconstitutional applications.'" Williams, 299 Kan. at 920. Yet, "'[w]here conduct and not merely speech is involved, the United States Supreme Court requires that 'the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.'" (Emphasis added.) 299 Kan. at 920. Courts have determined that such challenges must involve substantial overbreadth because "'[a]lmost every law is potentially applicable to constitutionally protected acts' and would be unconstitutional if any hypothetical, unconstitutional application was all that had to be established." (Emphasis added.) 299 Kan. at 920. Returning our focus to this case once more, we note that the City maintains that Trotter lacked standing before the district court—to challenge W.M.O. 3.06.030.A. as unconstitutionally overbroad or expressly violating the First Amendment right to assemble. The City contends that Trotter never established that his First Amendment constitutional rights were violated by the ordinance. Trotter, however, responds that he has standing to challenge W.M.O. 3.06.030.A. because his argument that W.M.O. 3.06.030.A. is unconstitutionally overbroad is the same as his argument that W.M.O. 3.06.030.A. facially violates the First Amendment's right to assemble. As previously noted, this is not the case because different standing and procedural rules govern whether a law expressly violates the First Amendment right to assemble and whether a law is so broad that it infringes upon a First Amendment right. Thus, in making his arguments, Trotter has wrongly conflated the rules on these two constitutional issues. Likewise, in making its decision, the district court wrongly conflated the rules on whether a law expressly violates the First

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Amendment right to assemble and whether a law is so broad that it infringes upon a First Amendment right. Also, most of the district court's analysis why W.M.O. 3.06.030.A. was unconstitutional focused on irrelevant United States Supreme Court caselaw. And the remainder of its analysis focused on hypothetical applications of W.M.O. 3.06.030.A. in a constitutionally impermissible manner. But the district court's reliance on hypotheticals to rule that W.M.O. 3.06.030.A. was unconstitutional was also clear error. By relying on only hypothetical applications of W.M.O. 3.06.030.A., the district court never truly considered if a significant part of W.M.O. 3.06.030.A.'s target was to limit a person's right to assemble. And it certainly never considered if there was a satisfactory means to sever the unconstitutional application of W.M.O. 3.06.030.A. from its constitutional form as required under the second part of the unconstitutionally overbroad test. Similarly, by relying on only hypothetical applications of W.M.O. 3.06.030.A., the district court never even considered if the licensing framework constituted a content-based or content-neutral law as required under the first part of the test for determining if a law expressly violates the First Amendment right to assemble. In any case, our Supreme Court has explicitly rejected the hypothetical-based analysis the district court engaged in. Again, a person arguing that a law expressly violates the First Amendment lacks standing to raise a constitutional challenge based on hypothetical applications of the law to third parties. See Williams, 299 Kan. at 918 (explaining that in express challenges, "'if there is no constitutional defect in the application of the statute to a litigant, [the litigant] does not have standing to argue that it would be unconstitutional if applied to third parties in hypothetical situations'"). In turn, because Trotter lacked standing to raise a challenge that the City's after-hours establishment licensing framework expressly violated the First Amendment rights of third parties, the district court lacked jurisdiction to rule that W.M.O. 3.06.030.A. violated the First Amendment right to assemble based on its hypothetical applications of W.M.O. 3.06.030.A. to third parties. Also, a person arguing that a law is unconstitutionally overbroad in a manner that infringes upon a right protected under the

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First Amendment cannot invalidate the disputed law by relying on only hypothetical applications of the law. See Williams, 299 Kan. at 920 (explaining that overbreadth challenges must do more than establish that some constitutionally protected behavior would be prohibited by a law because "'[a]lmost every law' . . . would be unconstitutional if any hypothetical, unconstitutional application was all that had to be established"). But see State v. Harris, 311 Kan. 816, 824-25, 467 P.3d 504 (2020) (approving of using hypotheticals in constitutional void-for-vagueness analysis to the extent the hypotheticals established that a law could be subject to different enforcement standards). Thus, the district court necessarily erred when it ruled that W.M.O. 3.06.030.A. was unconstitutionally overbroad contrary to the First Amendment by relying on solely hypothetical applications.

Conclusion

Thus, to summarize, we lack jurisdiction to consider the district court's ruling that Trotter lacked standing to challenge W.M.O. 3.06.030.A. as unconstitutionally vague because Trotter has not cross-appealed this issue. Because Trotter never applied for an after-hours establishment license, we—like the district court below—also lack jurisdiction to consider (1) whether W.M.O. 3.06.030.A. expressly violates the Fourth Amendment's right against unreasonable searches, (2) whether W.M.O. 3.06.030.A. expressly violates the Fourteenth Amendment's Due Process Clause, and (3) whether W.M.O. 3.06.030.A. expressly violates the First Amendment's right to assemble. As a result, we have jurisdiction to consider only (1) whether the district court erred by dismissing Trotter's charge for violating W.M.O. 3.30.030.A. based on W.M.O. 3.06.030.A.'s alleged unconstitutionality and (2) whether the district court erred by ruling that W.M.O. 3.06.030.A. was unconstitutionally overbroad. Because it is readily apparent that the district court erred when it dismissed Trotter's charge for violating W.M.O. 3.30.030.A. based on W.M.O. 3.06.030.A.'s alleged unconstitutionality, however, we hold that the district court erred as a matter of law when it dismissed Trotter's charge for violating W.M.O. 3.30.030.A.

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And for this reason, we decline to address this issue further. In- stead, the remainder of our analysis will focus on whether the district court erred when it dismissed Trotter's charge for violating W.M.O. 3.06.030.A. as unconstitutionally overbroad contrary to the First Amendment's expression rights.

Is Wichita Municipal Ordinance 3.06.030.A. unconstitutional?

Once again, the City contends that the district court erred by granting Trotter's motion to dismiss because its after-hours establishment licensing framework is not unconstitutionally overbroad. Trotter counters that W.M.O. 3.06.030.A.'s plain language proves that the City's after-hours establishment licensing framework is unconstitutionally overbroad because it "prohibits all gathering" that "occurs on a regular basis without a license" between midnight and 6 a.m.

A review of the City's after-hours establishment licensing framework.

As previously noted, W.M.O. 3.06.030.A. states: "Except as provided in 3.06.030 subsection B., it is unlawful for any person . . . to own, lease, manage, maintain or operate an after-hours establishment without first obtaining a license and paying all fees as required by this chapter, and complying with all other applicable provisions of this code." Meanwhile, W.M.O. 3.06.030.B. states:

"No separate license shall be required under this chapter for a business licensed by the State of Kansas or City of Wichita, including but not limited to: entertainment establishment, drinking establishment, drinking establishment restaurant, licensed community event, licensed temporary entertainment district, or sexually oriented businesses."

Thus, under the City's after-hours establishment licensing framework, unless a person has already licensed his or her establishment as one of the listed exempted establishments, any person operating an after-hours establishment must obtain a license to legally operate it. A person who violates W.M.O. 3.06.030.A. must "be punished by a fine of not less than $1,000.00 and nor more than $2,500 and up to one year imprisonment." W.M.O. 3.06.180. W.M.O. 3.06.020, the definitional provision of the City's after-hours establishment licensing framework, provides additional

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City of Wichita v. Trotter clarity on what sort of establishment would fall under W.M.O. 3.06.030.A.'s licensing requirement. This provision defines "after- hours establishment" as follows:

"'After-hours establishment' means any venue for a series of events or ongoing activity or business, occurring alone or as part of another business, to which the public is invited or allowed which is open anytime between midnight and 6:00 a.m., where individuals gather and is not otherwise licensed for the sale of alcoholic beverages or cereal malt beverages or otherwise licensed by the City of Wichita or state of Kansas for a business at that location. This term shall not include hospitals, hotels, motels or other boarding houses nor is it intended to apply to private homes where specifically invited guests gather." W.M.O. 3.06.020.

Also, the definition of "after-hours establishment" further states:

"A combination of two or more of the following factors is prima facie evidence that an establishment is an 'after-hours establishment': 1) Playing of music either recorded or live; 2) Entertainment such as trivia or games; 3) Sporting events in person or broadcasted on screens; 4) Crowds in excess of 20 people; 5) Alcoholic beverages present; 6) Food by an unlicensed vendor offered for purchase or as a benefit of paid entry; 7) Entry allowed only upon payment of a fee or membership; 8) Establishment monitored by security guards; 9) Advertisements or notifications on social media or by other means that invite the public to attend or participate in functions or activities located on the premises of such establishment."

As a result, the definition of "after-hours establishment" includes a nonexhaustive list of factors, which if two are present, proves a venue constitutes an after-hours establishment. Because this is a nonexhaustive list, however, engaging in other unlisted activity after-hours may render a venue an after-hours establishment. In turn, under the City's after-hours establishment licensing framework, an after-hours establishment is a venue that does the following: (1) hosts recurring events between midnight and 6 a.m., (2) allows the public to gather at these recurring events, and (3) is not otherwise excluded from having a license because (A) the venue is a hospital, hotel, motel, boarding house, or private home, or (B) the venue already holds a license for an entertain-

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.City of Wichita v. Trotter ment establishment, drinking establishment, drinking establishment restaurant, licensed community event, licensed temporary entertainment district, or sexually oriented business. As for the stated purpose of the City's after-hours establishment licensing framework, W.M.O. 3.06.010 explains its purpose. In its entirety, W.M.O. 3.06.010 states:

"The City of Wichita finds that some after-hours establishments within the city contribute to public intoxication, noise, disorderly conduct, assaults, violent crime and other similar problems connected primarily with the routine congre- gation of persons around such after-hours establishments, especially those which are managed without adequate security and attention to preventing these problems. "The City of Wichita finds that a significant amount of police resources are being expended to address safety issues at after-hours establishments and safety risks are abundant when City personnel are not allowed to enter the facility for safety checks on locked doors and fire suppression devices. The purpose of this Chapter is to regulate the operation of all after-hours establishments so as to minimize the negative effects and to preserve the public safety, health and welfare."

As a result, the City's stated purpose for its after-hours establishment licensing framework can be summarized as minimizing the safety and nuisance issues associated with after-hours establishments.

In addition to defining what constitutes an after-hours establishment and outlining the purpose of requiring venues to hold after-hours establishment licenses, the City's after-hours licensing framework fully outlines the licensing application process, the licensing suspension and revocation process, and the licensing appeal process. To obtain an after-hours establishment license, a person must submit a license application in accordance with W.M.O. 3.06.040 and pay an annual fee of $400. W.M.O. 3.06.050.A. Highly summarized, W.M.O. 3.06.040 requires an applicant to include information relating to the following: (1) information related to his or her identity; (2) information related to the identity of the owners, managers, and operators of the proposed after-hours establishment; (3) information related to the general operation of the after- hours establishment, that is, location and business hours; (4) information related to the safe operation of the after-hours establishment; and (5) a "description of the nature of the activity that will

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City of Wichita v. Trotter take place at the after-hours establishment." W.M.O. 3.06.040.A.; W.M.O. 3.06.040.B. As to the safety information the applicant must provide, the applicant is required to submit "[a] plan to ensure that adequate traffic control, crowd protection and security will be maintained and that underage patrons will not be admitted to the establishment" as well as "[a]n emergency management plan." W.M.O. 3.06.040.B.4.; W.M.O. 3.06.040.B.5. If the applicant fails to provide this information, the City will deny the after-hours establishment license application. W.M.O. 3.06.040.C. The City will deny the application for other reasons as well, including the applicant's previous commission of certain crimes, the applicant's proposed safety measures being inadequate, and the applicant's venue violating the City's public safety codes. W.M.O. 3.06.040.C. Also, if the applicant successfully ob- tains the after-hours establishment license, the City may suspend or revoke the after-hours establishment license for several reasons, including if the licensee has not imposed adequate safety measures, if the after-hours establishment venue has become a nuisance, and if the "conduct by disorderly patrons reaches a mag- nitude that presents an immediate threat to the public safety and well-being of the patrons and the general public in the vicinity of the establishment." W.M.O. 3.06.060.A.; W.M.O. 3.06.070.A. Yet, if the City denies an application for an after-hours establishment license, or if the City suspends or revokes a licensee's after-hours establishment license, the applicant or licensee may appeal the City's decision in accordance with W.M.O. 3.06.080. In short, this provision states that applicants or licensees may appeal the City's adverse after-hours establishment licensing decisions by filing written notice with the City that they intend to appeal within 10 business days of the City's adverse decision. W.M.O. 3.06.080.A. This provision also states that if the applicants or licensees disagree with the result of their appeal to the City, they can further appeal the City's decision to the Sedgwick County District Court. W.M.O. 3.06.080.E. Thus, there are three important takeaways from the City's after-hours establishment licensing framework: First, a venue that constitutes an after-hours establishment must have an after-hours establishment license before it can legally operate. Second, the

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City's licensing requirements do not apply to all establishments. Instead, unless one of the several listed exceptions apply, the City's after-hours establishment licensing requirements are triggered when a venue hosts recurring events between midnight and 6 a.m. where the public can gather. Third, although the City's after-hours licensing framework applies generally to venues open for recurring public gatherings between midnight and 6 a.m., nothing within the City's after-hours establishment licensing framework allows the City to deny, suspend, or revoke a license based on what type of expression occurs at the venue. Stated another way, nothing within the City's after-hours establishment licensing framework allows the City to deny, suspend, or revoke a license because of the beliefs of the person operating the venue or because the expressions that may take place inside of the venue. With this overview of the City's after-hours establishment licensing framework in mind, we will now consider the parties' underlying dispute on whether W.M.O. 3.06.030.A. is unconstitutionally overbroad in a manner that infringes on the First Amend- ment's right to assemble.

W.M.O. 3.06.030.A. is not unconstitutionally overbroad.

Although the City—as the appellant—carries the burden to establish the district court erred on appeal, before the district court, Trotter—as the party alleging that W.M.O. 3.06.030.A. was unconstitutional—carried the burden of proof. See Trotter, 58 Kan. App. 2d 781, Syl. ¶ 1 (holding that "[t]he party asserting a constitutional claim must prove the law clearly violates the Con- stitution"). As a result, before the district court, Trotter needed to prove two things to establish his argument that W.M.O. 3.06.030.A. was unconstitutionally overbroad in a manner that infringed upon the First Amendment right to assemble: (1) that prohibition of assemblies is a significant part of W.M.O. 3.06.030.A.'s target and (2) that there exists no satisfactory method of severing W.M.O. 3.06.030.A.'s constitutional form from its unconstitutional applications. See Williams, 299 Kan. at 920. To establish the preceding, Trotter needed to prove that W.M.O. 3.06.030.A. was unconstitutionally overbroad under its common-sense interpretation. See Williams, 299 Kan. at 921

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(holding that "'courts will not give strained meanings to legislative language through a process of imaginative hypothesizing; a common-sense interpretation of the statute is the guiding principle'"). And as previously explained, under the first part of the overbreadth doctrine test, Trotter had to "do more than imagine a con- ceivable activity that would be constitutionally protected but would run afoul of the aggravated trafficking statute because '[a]lmost every law is potentially applicable to constitutionally protected acts' and would be unconstitutional if any hypothetical, unconstitutional application was all that had to be established." 299 Kan. at 920. Instead, because Trotter specifically alleged that W.M.O. 3.06.030.A.'s after-hours licensing requirement prohibited him and others from exercising their First Amendment right to assemble, under the first part of the overbreadth doctrine test, he needed to also establish that W.M.O. 3.06.030.A.'s overbreadth was "not only . . . real, but substantial as well, [when] judged in relation to the statute's plainly legitimate sweep.'" 299 Kan. at 920 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 615, 93 S. Ct. 2908, 37 L. Ed. 2d 830 [1973]). Previously, the United States Supreme Court has explained that the party making a facial challenge to a law's constitutional validity under the overbreadth doctrine must show that the disputed law is substantially overbroad because application of the overbreadth doctrine should be done "sparingly and only as a last resort." Broadrick, 413 U.S. at 613. Thus, "'there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.'" (Emphasis added.) Airport Comm'rs v. Jews for Jesus, Inc., 482 U.S. 569, 574, 107 S. Ct. 2568, 96 L. Ed. 2d 500 (1987). In line with this precedent, both the First and Sixth Circuits of the United States Court of Appeals have rejected challenges to laws that specifically prohibited persons from operating certain establishments during certain hours of the day. For instance, in National Amusements, Inc. v. Town of Ded- ham, 43 F.3d 731, 734, 748 (1st Cir. 1995), the First Circuit rejected a movie theater licensee's overbreadth challenge, holding that the following law was not so broad as to violate the First

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Amendment: "No holder of an entertainment license for theatrical exhibition, public show, public amusement, concert, dance or exhibition . . . shall conduct business between the hours of 12 midnight and 6:00 a.m." Although the licensee argued that this law resulted in banning "all licensed entertainment" contrary to the First Amendment, the First Circuit disagreed because (1) the law was rationally related to the government's stated purpose of minimizing safety and nuisance issues and (2) the law seemingly harmed nobody but the licensee. 43 F.3d at 748. Then, based on the preceding, the First Circuit held that the licensee had "failed to demonstrate that [the disputed law was] overbroad, let alone substantially so." 43 F.3d at 748. Likewise, the Sixth Circuit, in Richland Bookmart, Inc. v. Nichols, 137 F.3d 435, 438, 441 (6th Cir. 1998), rejected an adult- business store owner's overbreadth challenge, holding a law that prohibited adult-businesses from "opening before 8 a.m. or after midnight Monday through Saturday, and from being open at all on Sundays" was not so broad as to violate the First Amendment. There, the Sixth Circuit explained that it was reversing the district court, which had ruled the law was unconstitutionally overbroad in favor of the adult-business store owner, because the mere possibility that the law may regulate some constitutionally protected expression was an insufficient reason to rule that the law was unconstitutionally overbroad. 137 F.3d at 441. So this authority from the First and Sixth Circuits supports that a government may place an outright ban on certain establishments being open during some portion of the day without violating protected expression rights under the First Amendment. Indeed, the First Circuit's decision in National Amusements, Inc. strongly supports that a government may require a person to comply with a law limiting his or her establishment's hours of operation as part of a licensing requirement. As a result, this authority from the First and Sixth Circuits makes a telling point that a law—requiring a person to obtain a license to operate an establishment during certain hours of the day—would not impermissibly infringe on that person's First Amendment expression rights as long as the law otherwise met the overbreadth doctrine's test for constitutionality. In its appellant's brief, the City argues that neither W.M.O. 3.06.030.A., nor its overall after-hours establishment licensing

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City of Wichita v. Trotter framework, is unconstitutionally overbroad because the licensing framework "does not seek to regulate protected activity" and does not "make constitutionally protected conduct illegal." In making this argument, the City stresses that the stated purpose of its licensing framework is to reduce the safety and nuisance concerns associated with after-hours establishments. In making this argument, the City also takes issue with the district court's reliance on hypothetical applications of W.M.O. 3.06.030.A. It contends that "[n]one of the various factual scenarios cited by the trial court establish that the ordinance is overly broad" because the fact that the licensing framework could be applied unconstitutionally does not mean that it is unconstitutional. In his appellee's brief, Trotter responds that W.M.O. 3.06.030.A. is unconstitutionally overbroad "because it regulates and prohibits (without a license) protected activity." According to Trotter, the City's purpose for enacting W.M.O. 3.06.030.A. was to "regulate[] all gathering between 12:00 a.m. and 6:00 a.m." To support this argument, Trotter points to the district court's hypothetical applications of W.M.O. 3.06.030.A. to private homes and dormitories. Trotter seemingly believes that because W.M.O. 3.06.030.A. could be applied to recurring events held between midnight and 6 a.m. at these locations, W.M.O. 3.06.030.A. is unconstitutionally overbroad. Also, Trotter emphasizes the definition of "after-hours establishment" includes a nonexhaustive list of factors, which if two are present, proves a venue constitutes an after-hours establishment. Trotter apparently believes that because the definition includes a nonexhaustive list, the City's after- hours licensing framework lacks sufficient guidance on what makes a venue an after-hours establishment. Yet, the first step of our analysis in overbreadth challenges is to determine whether the constitutionally protected activity is a significant part of the law's target. Williams, 299 Kan. at 920. Both before the district court and on appeal, Trotter's arguments have always assumed that assembling is a significant part of W.M.O. 3.06.030.A.'s target simply because the after-hours establishment definitional provision—W.M.O. 3.06.020 —states that an after- hours establishment is a venue where "individuals gather." But plainly, regulating gatherings is not the stated purpose of the City's

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.City of Wichita v. Trotter after-hours establishment licensing framework. Instead, under W.M.O. 3.06.010, the City's stated purpose for requiring after- hours establishment licenses is to minimize the safety and nuisance risks associated with after-hours establishments. Also, Trotter's argument that the target of W.M.O. 3.06.030.A. is to prohibit all gatherings between midnight and 6 a.m. ignores that there are numerous exceptions to W.M.O. 3.06.030.A. To begin with, the definition of after-hours establishment explicitly states that "hospitals, hotels, motels or other boarding houses" are not after-hours establishments. As a result, the plain language of the City's after-hours establishment licensing framework proves that it does not apply to venues providing lodging as a business. Next, the definition of after-hours establishment states that the City's after-hours establishment licensing framework is not "intended to apply to private homes where specifically invited guests gather." Thus, the City's after-hours establishment licensing framework explicitly states that it is not the City's intent to apply the framework to private homes. And more significantly, because the City's after-hours establishment licensing framework is not intended to apply to people who regularly host invited guests in their private homes, it is readily apparent that the framework does not apply in circumstances of private gatherings. Conversely, it is the fact that members of the public can enter a venue, like a private home, that may result in that venue being deemed an after-hours establishment. Of note, most of the district court's hypotheticals, which Trot- ter has adopted, ignore this key fact. Once more, the district court determined that W.M.O. 3.06.030.A. was unconstitutionally overbroad because it concluded the City's after-hours establishment licensing framework made it a crime for persons to host recurring gatherings in their private homes between midnight and 6 a.m. if such persons (1) lived in nonresidential zones, (2) lived in dorms, (3) were under the age of 21, or (4) engaged in commercial activity inside their private homes. But none of these hypothetical applications of W.M.O. 3.06.030.A. noted that the City's after-hours establishment licensing framework would apply to such persons only if they were hosting recurring gatherings in their private homes between midnight and 6 a.m. to which the public was invited. Stated another way, the district court's hypotheticals ignored

VOL. 60 COURT OF APPEALS OF KANSAS 373

City of Wichita v. Trotter that as long as such persons held a private gathering for "specifically invited guests," their recurrent early-morning gatherings would not constitute an after-hours establishment under W.M.O. 3.06.020's definition of after-hours establishment. As a result, the district court's hypothetical applications of W.M.O. 3.06.030.A. fall short of the mark because the district court's hypotheticals would apply only if such persons started hosting recurrent early- morning gatherings that the public could attend. Of further note, although the district court implied that private homes in nonresidentially zoned areas are excluded from the list of venues that are excepted from the City's after-hours establishment licensing framework, this is not true. It seems that the district court ruled that private homes in nonresidentially zoned areas may come under the City's after-hours establishment licensing framework by hosting recuring gatherings between midnight and 6 a.m. in their private homes because W.M.O. 3.06.020 defines "private home" as "a building or structure used solely as a private residence where no other commercial or entertainment activities occur or may occur. The term is meant to encompass private citizens gathering with invited guests in their own residentially zoned home." (Emphasis added.) As an initial point, neither the district court nor Trotter has explained if the City's zoning ordinances even allow people to have a private home in a nonresidentially zoned area. The very name "nonresidential" implies persons would not ordinarily have private homes in such districts. It thus follows that neither the district court nor Trotter have shown that there is a realistic danger that W.M.O. 3.06.030.A. would significantly compromise persons living in a nonresidentially zoned area from gathering in accordance with their First Amendment right to assemble. Next, although the district court's dismissal order did not make any rulings on churches, Trotter has consistently argued that W.M.O. 3.06.030.A. is unconstitutionally overbroad because it would prohibit a church from holding midnight mass without first obtaining an after-hours establishment license. He stresses that under W.M.O. 3.06.020's definition of after-hours establishment, the presence of more than 20 members of the public and commun- ion wine at a "weekly midnight mass" would render a church an

374 COURT OF APPEALS OF KANSAS VOL. 60

.City of Wichita v. Trotter after-hours establishment. But the term "midnight mass" traditionally refers to a singular church service that a church holds on Christmas Eve. Therefore, a singular midnight mass at Christmas- time would not fall under the City's after-hours establishment licensing framework. Also, even if a church was holding weekly midnight masses, or some other weekly midnight service, Trotter's argument ignores that he must establish that W.M.O. 3.06.030.A.'s overbreadth is not only real but substantial enough that there is a realistic danger that the law will significantly compromise the First Amendment rights of others. See Airport Comm'rs, 482 U.S. at 574; Williams, 299 Kan. at 920. Quite clearly, under the assumption such weekly church services occur, it is readily apparent that the possibility such weekly church services fall under the technical definition of an after-hours establishment does not prove that W.M.O. 3.06.030.A. is so substantially overbroad that there is a realistic danger that it would be applied in a manner to violate those midnight masses attendees' First Amendment rights. We note that "[t]he freedom to hold religious beliefs and opinions is absolute. . . . However, the freedom to act, even when the action is in accord with one's religious convictions, is not totally free from legislative restrictions." Braunfeld v. Brown, 366 U.S. 599, 603, 81 S. Ct. 1144, 6 L. Ed. 2d 563 (1961). Thus, one's religious beliefs may not be a defense against a prosecution for a crime that may be prohibited under a government's police power. Reynolds v. United States, 98 U.S. 145, 166-67, 8 Otto 145, 25 L. Ed. 244 (1878) (Religious belief is no defense to a polygamy prosecution.); Trotter, 58 Kan. App. 2d at 799 ("'Municipalities have broad police powers to enact ordinances regulating or restricting certain activities to promote the health, safety, and welfare of the public.'"). As for Trotter's emphasis on the nonexhaustive list of factors included in W.M.O. 3.06.020's definition of after-hours establishment, the fact that W.M.O. 3.06.020's definition of after-hours establishment includes a nonexhaustive list of factors does not ne- cessitate a ruling that W.M.O. 3.06.030.A. is unconstitutionally overbroad. To the contrary, the City undoubtedly included the nonexhaustive list of factors within W.M.O. 3.06.020's definition

VOL. 60 COURT OF APPEALS OF KANSAS 375

City of Wichita v. Trotter of after-hours establishment because it was trying to provide guidance under what circumstances the after-hours establishment licensing framework would apply. And regardless of this, in Trot- ter, we rejected a similar argument by Trotter. There, he asserted that W.M.O. 3.30.020's definition of "entertainment," which included a nonexhaustive list of factors that if present meant a venue constituted an entertainment establishment, created confusion because it meant a person may need an entertainment establishment license in a variety of situations. The Trotter court, though, ultimately rejected this argument for the following reasons: (1) because the City's entertainment establishment licensing framework, though broad, was "not unbounded"; (2) because the City's licensing framework did not prohibit persons from engaging in expressive activity; and (3) because the City's after-hours establishment licensing framework does not regulate expression inside the entertainment establishment. 58 Kan. App. 2d at 798. Trotter's current overbreadth challenge is very similar to his overbreadth challenge in Trotter. Like the City's entertainment establishment licensing framework at issue in Trotter, the City's after-hours establishment licensing framework at issue in this case, though broad, is not unbounded. Next, like his overbreadth argument in Trotter, Trotter's current argument that W.M.O. 3.06.030.A. is unconstitutionally overbroad ignores that a person's First Amendment right to assemble is not absolute. See Perry, 460 U.S. at 45-46. And like his overbreadth argument in Trotter, Trot- ter's current argument that W.M.O. 3.06.030.A. is unconstitutionally overbroad ignores that although the City requires a license to operate a venue that hosts recurring public gatherings between midnight and 6 a.m., the City's after-hours establishment licensing framework does not ban other avenues of expression. Specifically, it does not prohibit Trotter or anyone else from peaceably assembling in areas traditionally designated as public forums during that same timeframe. See Perry, 460 U.S. at 45 (discussing the type of venues that constitute a public forum). Nor does it allow the City to deny an after-hours establishment license application based on any expressive conduct that Trotter and his patrons intended to engage in at the after-hours establishment. Thus, the fact that W.M.O. 3.06.020's after-hours establishment definition includes a

376 COURT OF APPEALS OF KANSAS VOL. 60

.City of Wichita v. Trotter nonexhaustive list of factors, which if two are present, proves a venue constitutes an after-hours establishment, does not mean W.M.O. 3.06.030.A. is unconstitutionally overbroad. In summary, under the first part of our test in determining if W.M.O. 3.06.030.A. is unconstitutionally overbroad, we must consider if a significant part of W.M.O. 3.06.030.A.'s target was to infringe upon a person's right to assemble. But the City has showed that Trotter never met his burden under the first part of this test before the district court. As previously noted, Trotter has repeatedly alleged that W.M.O. 3.06.030.A. is unconstitutionally overbroad. But neither his nor the district court's hypothetical applications of W.M.O. 3.06.030.A. established that W.M.O. 3.06.030.A. created a realistic danger of significantly compromising Wichitans' First Amendment right to assemble, or any other expressive right, as required to show that a significant part of W.M.O. 3.06.030.A.'s target was to infringe upon people's First Amendment rights. Thus, the district court erred when it granted Trotter's motion to dismiss based on its ruling that W.M.O. 3.06.030.A. was unconstitutionally overbroad. Because the district court erred in granting Trotter's dismissal motion on this basis, this was an error of law and we reverse and remand for further proceedings consistent with this opinion.

Conclusion

The advantage of requiring licenses here was to give the City and the public authorities (law enforcement, fire, and emergency medical services) notice in advance so as to afford them an opportunity for proper public safety. Indeed, W.M.O. 3.06.010 states the following:

The City's stated purpose for requiring after-hours establishment licenses was to minimize the safety and nuisance risks associated with after-hours establishments. Also, W.M.O. 3.06.030.A. and

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City of Wichita v. Trotter

W.M.O. 3.30.030.A. do not vest the City with arbitrary power or unfettered discretion. In conclusion, because an application of the law governing whether the language in a rule is so broad as to violate First Amendment expression rights definitively establishes that W.M.O. 3.06.030.A. is not unconstitutionally overbroad, the district court erred when it ruled otherwise. And because there was no basis for the district court to grant Trotter's motion to dismiss, the district court also erred when it dismissed Trotter's charges for violating W.M.O. 3.06.030.A. in operating an unlicensed after- hours establishment and for violating W.M.O. 3.30.030.A. in operating an unlicensed entertainment establishment. Based on the preceding, as well as the fact that the district court lacked jurisdiction to rule that W.M.O. 3.06.030.A. facially violated (1) the Fourth Amendment's right against unreasonable searches, (2) the Fourteenth Amendment's Due Process Clause, and (3) the First Amendment's right to assemble, we reverse the district court's order dismissing Trotter's charges for violating W.M.O. 3.06.030.A. in operating an unlicensed after-hours establishment and for violating W.M.O. 3.30.030.A. in operating an unlicensed entertainment establishment. Because Trotter's appeals to the district court from the municipal court specifically requested a jury trial, we further remand Trotter's now-consolidated appeals to the district court for a jury trial.

The district court's dismissal order is reversed, and this case is remanded for a jury trial on both Trotter's charges for violation of W.M.O. 3.06.030.A. and for violation of W.M.O. 3.30.030.A.

Reversed and remanded with directions.

378 COURT OF APPEALS OF KANSAS VOL. 60

State v. Sheets

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No. 123,140

STATE OF KANSAS, Appellee, V. AMBER SHEETS, Appellant.

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SYLLABUS BY THE COURT

CRIMINAL LAW—Revocation of Probation and Imposition of Sentence— Court May Not Eliminate Postrelease-Supervision Period. When the district court revokes probation and imposes a prison sentence on a felony defendant under K.S.A. 2020 Supp. 22-3716(c), K.S.A. 2020 Supp. 22- 3716(f) prevents the sentencing court from altogether eliminating a postrelease-supervision period.

Appeal from Sedgwick District Court; CHRISTOPHER M. MAGANA, judge. Opinion filed July 16, 2021. Affirmed in part, sentence vacated in part, and case remanded with directions.

James M. Latta, of Kansas Appellate Defender Office, for appellant.

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

Before POWELL, P.J., BRUNS, J., and STEVE LEBEN, Court of Appeals Judge Retired, assigned.

LEBEN, J.: If a statute says that a felon "shall serve a period of postrelease supervision" after completing the prison portion of a sentence, can the term of that postrelease-supervision term be zero? We think not. And because that's the basis of the defendant's legal position in this appeal, we reject it. With the big picture in mind, let's turn to the details. Those will involve several statutory provisions. For the reader's conven- ience, and because there haven't been substantive changes of any significance during the time this defendant's case has worked through the criminal-justice system, we cite the current version of those provisions. Amber Sheets pleaded guilty to one felony, a criminal threat, committed in August 2019. The district court sentenced her to probation with an underlying prison sentence of eight months that would be served if her probation was revoked.

VOL. 60 COURT OF APPEALS OF KANSAS 379 ______State v. Sheets

When Sheets first violated her probation, the court gave her a three-day jail sanction. That complied with a statutory provision, K.S.A. 2020 Supp. 22-3716(c)(1)(B), that generally requires a short jail stay as a sanction before the court may consider revoking the probation and sending the defendant to serve the underlying prison sentence. But Sheets violated her probation again, and this time the court revoked the probation. At this point, the statute allowed the court to do so since she had had a jail sanction. See K.SA. 2020 Supp. 22-3716(c)(1)(C). The same statute also allowed the court to require that she serve "the sentence imposed" previously or "any lesser sentence." K.S.A. 2020 Supp. 22-3716(c)(1)(C). The court elected to impose a lesser sentence of seven months, and the judge announced that from the bench. What the judge did not do, though, was make any comment from the bench about whether Sheets had to serve a period of postrelease supervision after she completed the seven-month prison sentence. In a written order entered later, the judge imposed a 12-month postrelease-supervision period. That was the same postrelease-supervision period that had been included in the original sentencing order with the earlier eight-month prison sentence. The judge's failure to mention postrelease supervision when announcing the sentence from the bench after revoking probation could be significant. The postrelease-supervision period is part of the sentence. See State v. Jones, 293 Kan. 757, 762, 268 P.3d 491 (2012). Usually, whatever sentence is announced from the bench is final and can't be corrected later by the sentencing judge except for minor clerical errors. K.S.A. 2020 Supp. 22-3504(b); State v. Edwards, 309 Kan. 830, 835-36, 440 P.3d 557 (2019). But there's an exception to that rule: If the sentence as announced isn't a lawful one because it doesn't comply with the sentencing statutes, then it can be corrected to make it lawful while the defendant is still serving the sentence. See K.S.A. 2020 Supp. 22-3504(a), (c); State v. Roberts, 309 Kan. 420, 422, 435 P.3d 1149 (2019). Even then, though, the terms of the sentence must be announced from the bench, not added in a later document. See State v. McDaniel, 292 Kan. 443, 445-46, 254 P.3d 534 (2011).

380 COURT OF APPEALS OF KANSAS VOL. 60

State v. Sheets

Sheets has appealed to try to eliminate any postrelease supervision. Since the district court didn't announce a postrelease-supervision period from the bench, Sheets argues that the court can't add it later. Whether that's true depends on whether the sentence announced from the bench could lawfully exclude postrelease supervision: if not, the sentence entered was an unlawful one, and the district court has jurisdiction to correct an unlawful sentence. K.S.A. 2020 Supp. 22-3504(a); Edwards, 309 Kan. at 835-36. To determine whether the district court could lawfully sentence Sheets to a seven-month prison term followed by no postrelease supervision, we must consider one more statutory provision. When a felony offender's probation is revoked under subsection (c) of K.S.A. 2020 Supp. 22-3716 (which is the applicable section for most felony offenders), then subsection (f) also applies:

"(f) For crimes committed on and after July 1, 2013, a felony offender whose nonprison sanction is revoked pursuant to subsection (c) or whose underlying prison term expires while serving a sanction pursuant to subsection (c)(1) shall serve a period of postrelease supervision on the completion of the prison portion of the underlying sentence." K.S.A. 2020 Supp. 22-3716(f).

Sheets committed her felony in 2019 and her probation was revoked under subsection (c), so subsection (f) applies to her. Under it, she "shall serve a period of postrelease supervision upon the completion of the prison portion of the underlying sentence." K.S.A. 2020 Supp. 22-3716(f).

She argues that because subsection (c)(1)(C) gave the district court the ability to impose "any lesser sentence" after it revoked her probation, the court had the ability to reduce the postrelease- supervision period to zero. If there's doubt about that, she urges that we apply the rule of lenity, under which ambiguous statutes are interpreted in favor of the criminal defendant. See State v. Gales, 312 Kan. 475, 485, 476 P.3d 412 (2020). But we don't think a fair reading of subsection (f) allows the district court to altogether eliminate the postrelease-supervision period:

• First, the concept of "a period" generally suggests some length of time. See American Heritage Dictionary 1311 (5th ed. 2011) (defining "period" as "[a]n interval of

VOL. 60 COURT OF APPEALS OF KANSAS 381 ______State v. Sheets

time"); New Oxford American Dictionary 1303 (3d ed. 2010) (defining "period" as "a length or portion of time"). • Second, the statutory phrase includes "shall serve." "Shall" generally suggests something must happen, and a person wouldn't serve any time in postrelease supervision if the time period were zero. See State v. Rashke, 289 Kan. 911, 920, 219 P.3d 481 (2009) (noting several cases interpreting "shall" as mandatory); State v. Bee, 288 Kan. 733, 739, 207 P.3d 244 (2009) (noting that the court had interpreted "shall" to be mandatory in the context of nonprison sanctions); Scalia & Garner, Reading Law: The Interpre- tation of Legal Texts § 11 (2012) (noting that "shall" generally is mandatory); American Heritage Dictionary 1601 (defining "serve" as "[t]o work through or complete (a period of service: served four terms in Congress" or "[t]o be in prison for (a period or term): served 10 years for armed robbery"). Even so, we recognize that sometimes "shall" can mean "may" or "should" based on context, and each case must be examined considering the specific statutory language. See Rashke, 289 Kan. at 920-22. In context here, though, subsection (f) serves as a limit on the district court's otherwise broad authority—and if subsection (f) is not a mandatory provision, there seems to be no purpose served by it. We do not presume the Legislature adds statutory language unnecessarily. State v. Sedillos, 279 Kan. 777, 782, 112 P.3d 854 (2005). • Third, subsection (f) applies to felonies, but not misde- meanors, suggesting that greater supervision is needed when probation is revoked for a felon. And the provision in subsection (f) applies postrelease supervision even to defendants whose prison sentence expires (because of the total credit for days in custody) while they are serving an initial sanction in the local jail, not serving a state prison sentence. The statutory scheme here strongly suggests that postrelease supervision was intended in the more serious situation—like Sheets' case—when probation is revoked (after an initial jail sanction failed to correct the defendant's behavior) and the defendant is sent to prison.

382 COURT OF APPEALS OF KANSAS VOL. 60

State v. Sheets

The common situation in both cases is that the defendant is on felony probation and has not complied with the probation terms.

We are to give statutory language its plain and natural meaning. See State v. Rizal, 310 Kan. 199, 205-06, 445 P.3d 734 (2019). We cannot read subsection (f) to allow the district court to eliminate altogether a postrelease-supervision term. Sheets points to our decision in State v. Jones, 56 Kan. App. 2d 556, 433 P.3d 193 (2018), to support her argument. It's similar to the facts of her case: the district court revoked Jones' probation, imposed a lesser prison sentence than first ordered, and then made no statement from the bench about postrelease supervision. We concluded that "the district court's silence on the postrelease term at a probation revocation hearing—even if by mistake—constitutes a lawful lesser sentence that is effective when pronounced from the bench." 56 Kan. App. 2d at 566. And as we've explained here, a lawful sentence announced from the bench can't be modified later. But there's a key difference between Jones and this case. In Jones, the defendant was on probation for a crime committed before July 1, 2013. So subsection (f), which we've found critical in Sheets' case, did not apply in Jones. In Jones, then, there was no requirement that the defendant "shall serve a period of postrelease supervision." Postrelease supervision is part of the sentence, so K.S.A. 2020 Supp. 22- 3716(b)(3)(B)(iii) allows the court to enter "any lesser sentence." With only those statutory provisions to apply, as we held in Jones, the failure to say anything about postrelease supervision effectively eliminated any postrelease-supervision term: without the constraint of subsection (f), the trial court could do so. There's a reason the current provision in subsection (f) didn't apply to crimes committed, as in Jones, before July 1, 2013. Subsection (f) was amended, effective that date, to require a postrelease-supervision term for most felony probation revocations. That's when the present language, requiring a person whose probation is revoked under subsection (c) to "serve a period of postrelease supervision upon the completion of the prison portion of the underlying sentence," was added. See L. 2013, ch. 76, § 5. Before that 2013 amendment, our Supreme Court had held that the authority to impose "any lesser sentence" when revoking probation allowed the sentencing court to shorten the prison

VOL. 60 COURT OF APPEALS OF KANSAS 383 ______State v. Sheets sentence, the postrelease-supervision period, or both. State v. McKnight, 292 Kan. 776, 782, 257 P.3d 339 (2011). The McKnight court invited the Legislature to add language limiting the sentencing court's authority if some limitation was intended, 292 Kan. at 783, and the Legislature acted on that invitation in 2013. But the amended language in subsection (f) providing a limitation did- n't apply to the probation revocation in Jones, so the district court there had the broad authority noted in McKnight. In Sheets' case, though, the amended language in subsection (f) applies, and we find that it unambiguously prevents eliminating postrelease supervision altogether. In this conclusion, we agree with three panels of our court that have addressed the same issue in unpublished opinions. See State v. Pierce, No. 122,381, 2021 WL 833999, at *5 (Kan. App.) (unpublished opinion), rev. denied 313 Kan. ___ (June 10, 2021); State v. Lozano, No. 122,459, 2021 WL 642306, at *5-6 (Kan. App.) (unpublished opinion), rev. denied 313 Kan. ___ (June 10, 2021); State v. Thomas, No. 122,518, 2020 WL 6930601, at *2 (Kan. App. 2020) (unpublished opinion). While we realize that one earlier unpublished opinion came to a different result, there was no discussion of subsection (f) in it, so we do not find it persuasive on the point at issue here. See State v. Bishop, No. 119,961, 2019 WL 6973428, at *5- 6 (Kan. App. 2019) (unpublished opinion). So where does this leave us in Sheets' case? After revoking Sheets' probation, the district court had to include a postrelease-supervision term but did not do so when announcing the sentence from the bench. That made the sentence as announced an illegal one that may be corrected later. But it's not proper simply to add a new part of the sentence that wasn't announced from the bench in a later written order. Mean- while, Sheets has not challenged in this appeal either the probation revocation or the imposition of a reduced seven-month prison sentence. We therefore affirm the district court's revocation of Sheets' probation and the imposition of a seven-month prison sentence. We vacate the journal entry of the postrelease-supervision period and remand with directions for the district court to announce in a new sentencing hearing a postrelease-supervision term greater than zero.

384 COURT OF APPEALS OF KANSAS VOL. 60

Rodina v. Castaneda

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No. 123,313

CURTIS RODINA, Appellant, V. ALBERTO R. CASTANEDA, D.D.S., Appellee.

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SYLLABUS BY THE COURT

1. CIVIL PROCEDURE—If No Determination of Comparative Fault Plaintiff May Pursue Separate Actions Against Tortfeasors. A plaintiff may pursue separate actions against tortfeasors when there has been no trial and judicial determination of comparative fault. Once a plaintiff proceeds to trial and comparative fault is judicially determined, the plaintiff can no longer pursue other suits for damages arising out of the same occurrence.

2. SAME—Default Judgment Against Tortfeasors--Plaintiff Entitled to Judi- cial Determination of Comparative Fault in This Case. When the trial court entered default judgment in a separate action against other tortfeasors, it made no apportionment of fault or determination of comparative fault. Thus, in this case, plaintiff is entitled to a judicial determination of comparative fault, and, if it is determined defendant was at least partially at fault, the trial court can order defendant to pay his proportionate share of damages.

Appeal from Wyandotte District Court; WILLIAM P. MAHONEY, judge. Opinion filed July 16, 2021. Reversed and remanded with directions.

Kyle A. Branson, of Mogenson & Branson, LLC, of Mission, for appellant.

Kevin D. Weakley, Timothy A. Pullin, and Katy L. Houchin, of Wallace Saunders, of Overland Park, for appellee.

Before GREEN, P.J., SCHROEDER, J., and WALKER, S.J.

GREEN, J.: This case involves a dental malpractice action against Alberto R. Castaneda, D.D.S. The plaintiff, Curtis Rodina, had successfully obtained a default judgment in a separate dental malpractice action against Sonya Cummings and Timothy T. Tay- lor, DDS, PA, for injuries related to dental work performed at their office. But Rodina was unsuccessful in his attempts to collect or satisfy his default judgment against those defendants. After learning that Dr. Castaneda was the dentist who had injured him, Ro- dina filed this action against Dr. Castaneda.

VOL. 60 COURT OF APPEALS OF KANSAS 385 ______Rodina v. Castaneda

Dr. Castaneda moved to dismiss Rodina's suit, arguing that his action was barred under the one-action rule. This rule states that all issues of liability and fault should be determined in one action, rather than in multiple lawsuits. The trial court agreed and dismissed Rodina's action based on that rule. On appeal, Rodina argues that the dismissal was improper because the trial court made no apportionment of fault in his previous dental malpractice action which resulted in a default judgment. As a result, Rodina maintains that his current malpractice action against Dr. Castaneda did not violate the one-action rule. We agree. We reverse and remand for further proceedings consistent with this opinion.

FACTS

On December 26, 2019, Rodina sued Timothy T. Taylor, DDS, PA, Sonya Cummings, and Timothy Taylor, DDS, alleging violations of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-642 et seq., the Health Insurance Portability and Ac- countability Act (HIPAA), and that the defendants provided him with inappropriate dental care. Rodina later voluntarily dismissed Dr. Taylor from the suit after learning Dr. Taylor was retired and not practicing dentistry when he was injured. Rodina alleged he was unable to determine the identity of the dentists who performed the work on his teeth. Cummings and Timothy T. Taylor, DDS, PA, did not file an answer or respond to Rodina's interrogatories or requests for pro- duction. The trial court ruled that the defendants violated the KCPA and HIPAA as alleged by Rodina, entered default judgment against them, and awarded Rodina $85,000 in economic damages; $200,000 in noneconomic damages; $5,000 for violating the KCPA; and $7,005.67 in attorney fees. The trial court did not make any determinations of comparative fault. On May 15, 2020, Rodina filed a second suit against Dr. Cas- taneda, alleging Dr. Castaneda had performed the dental work on him at Timothy T. Taylor, DDS, PA. Dr. Castaneda moved to dismiss Rodina's action, asserting Rodina's suit was barred by the one-action rule and issue preclusion.

386 COURT OF APPEALS OF KANSAS VOL. 60

Rodina v. Castaneda

The trial court held a hearing on Dr. Castaneda's motion. The trial court ruled that the one-action rule barred Rodina from suing Dr. Castaneda and granted Dr. Castaneda's motion to dismiss.

Rodina timely appeals.

ANALYSIS

Rodina maintains that the one-action rule is more properly un- derstood as the "one- trial" rule. Because the default judgment in the previous lawsuit did not determine comparative fault, Rodina argues that the one-action rule allows him to file this suit against Dr. Castaneda. Dr. Castaneda responds that allowing this suit would allow Rodina to seek a double recovery. Dr. Castaneda argues an unjoined defendant escapes liability under the one-action rule. A trial court's granting of a motion to dismiss is reviewed de novo because it is a legal question. Williams v. C-U-Out Bail Bonds, 310 Kan. 775, 784, 450 P.3d 330 (2019). Dr. Castaneda moved to dismiss, alleging that Rodina had failed to state a claim upon which relief can be granted. See K.S.A. 2020 Supp. 60-212(b)(6). When considering a motion to dismiss under K.S.A. 2020 Supp. 60-212(b)(6), a trial court must decide the issue based on only the well-pleaded facts and inferences reasonably drawn from them. Every factual dispute is resolved in the plaintiff's favor. Dismissal is proper only when the petition's allegations clearly demonstrate the plaintiff does not have a claim. An appellate court reviewing a trial court's motion to dismiss also assumes all well-pleaded facts and any inferences reasonably drawn from them are true, and, if those facts and inferences state a claim upon which relief can be granted, dismissal is improper. Williams, 310 Kan. at 784. Rodina argues that the trial court considered matters outside of the pleadings, turning the motion to dismiss into a motion for summary judgment without giving the parties the opportunity to present evidence. The matters outside the pleadings considered was Rodina's first lawsuit, specifically the default judgment journal entry. If the trial court considers matters outside the pleadings, a motion to dismiss is treated as a motion for summary judgment and

VOL. 60 COURT OF APPEALS OF KANSAS 387 ______Rodina v. Castaneda the parties must be given reasonable opportunity to present all pertinent material. K.S.A. 2020 Supp. 60-212(d). "But when matters outside the face of the pleadings are proper objects for judicial notice, a motion to dismiss need not be treated as a summary judgment motion." Mashaney v. Board of Indigents' Defense Services, 49 Kan. App. 2d 596, 610, 313 P.3d 64 (2013), aff'd in part and rev'd in part 302 Kan. 625, 355 P.3d 667 (2015). A trial court may take judicial notice of specific facts "capable of immediate and accurate determination by resort to easily accessible sources of in- disputable accuracy." K.S.A. 60-409(b). The default judgment journal entry in Rodina's first lawsuit falls within this category. The journal entry is a court order whose veracity is easy to con- firm. There is no dispute the journal entry was accurate. The trial court's consideration of the default judgment journal entry was appropriate. So we conclude that the motion to dismiss remained a motion to dismiss. The core dispute in this case revolves around K.S.A. 2020 Supp. 60-258a and the one-action rule. K.S.A. 2020 Supp. 60- 258a is Kansas' comparative fault statute. Under the statute, any party whose causal negligence is claimed to have contributed to the alleged injury must be joined as an additional party. K.S.A. 2020 Supp. 60-258a(c). This subsection has developed into the one-action rule, which states all issues of liability and fault should be determined in one action, rather than in multiple lawsuits. See Eurich v. Alkire, 224 Kan. 236, 237-38, 579 P.2d 1207 (1978). Our courts' discussions on the one-action rule find their ori- gins in Kennedy v. City of Sawyer, 228 Kan. 439, 460-61, 618 P.2d 788 (1980). There, our Supreme Court held that, where the amount of damages was determined by settlement, not judicial proceedings, it is the defendants' duty to bring an action against all tortfeasors from whom comparative liability through indemnity is sought. 228 Kan. at 460-61. In settling, the amount is the maximum amount that can be apportioned; the plaintiff cannot pursue another action against other tortfeasors to recover again. See 228 Kan. at 461. A year later, in Albertson v. Volkswagenwerk Aktiengesell- schaft, 230 Kan. 368, 369, 634 P.2d 1127 (1981), our Supreme Court answered a certified question from United States District

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Judge Frank G. Theis asking if a plaintiff, once having obtained satisfaction in a comparative negligence case for a portion of his injuries, can bring another action against a defendant not part of the first action to recover for the remaining portion of his injuries? The Albertson court noted all parties in a negligence action "shall have their rights and liabilities determined in one action." 230 Kan. at 371. The plaintiff was found responsible for 40% of his own injuries with 60% caused by others. Our Supreme Court held the action was over; the plaintiff could have sued Volkswagen- werk in state court but chose not to for strategic reasons. Our Su- preme Court explained: "Under the doctrine of comparative fault all parties to an occurrence must have their fault determined in one action, even though some parties cannot be formally joined or held legally responsible. Those not joined as parties or for determination of fault escape liability." 230 Kan. at 374. Our Supreme Court later narrowed Kennedy's reach, holding the broad language used went far beyond the facts of the Kennedy case and disapproved of the opinion "to the extent that it suggests a defendant can enlarge the liability of other defendants." Ellis v. Union Pacific R.R. Co., 231 Kan. 182, 191, 643 P.2d 158, aff'd on reh'g 232 Kan. 194, 653 P.2d 816 (1982). A defendant in a comparative negligence action cannot settle a claim on behalf of a party against whom the plaintiff could not recover and then seek contribution from that party in proportion to that party's responsibility. If a plaintiff chooses to forgo recovery from other tortfeasors, a settling defendant has no claim to settle but his or her own. 231 Kan. at 192. In Mathis v. TG & Y, 242 Kan. 789, 751 P.2d 136 (1988), our Supreme Court began to step away from the narrow boundaries it created in the one-action rule. In Mathis, Mathis filed a personal injury suit against TG & Y. Before the action's adjudication, Mathis filed a second suit, arising out of the same set of facts, against other defendants. Mathis settled the second suit, and the trial court dismissed it with prejudice. TG & Y moved to dismiss the first suit, claiming the second suit's dismissal precluded Mathis from proceeding in the first suit. The trial court dismissed the first suit based on Albertson. Mathis, 242 Kan. 789. Our Supreme Court noted the one-action rule requires all parties to an injury

VOL. 60 COURT OF APPEALS OF KANSAS 389 ______Rodina v. Castaneda have their fault determined in one action, and any party not joined in that action cannot be sued in a second suit. 242 Kan. at 792. The Mathis court explained Albertson involved a second suit brought against a known defendant who could have been joined in the original action, but Albertson did not apply to the facts in Mathis. 242 Kan. at 792. Because Mathis' second suit was never adjudicated, there was no determination of fault. The defendants in the second suit were no longer liable because Mathis settled with or dismissed them with prejudice. "However, their percent- age of fault could have been determined in the original suit whether or not they were parties to that action." 242 Kan. at 793. Analyzing K.S.A. 60-258a, our Supreme Court explained the Leg- islature's intent was to "fully and finally litigate in a single action all causes of actions and claims for damages arising out of any negligence." 242 Kan. at 794. Our Supreme Court held no party should be afforded a second opportunity to litigate causal negligence after an adjudication of comparative fault. But the court also held it was never the Legislature's intent "to place form over substance" and preclude a plaintiff from suing a tortfeasor when there had been no judicial determination of comparative fault. 242 Kan. at 794. Our Supreme Court expounded on this in Anderson v. Scheffler, 242 Kan. 857, 858-59, 752 P.2d 667 (1988), where the plaintiff filed a second suit in Kansas state court against two defendants after the federal district court in Missouri would not allow plaintiff to add the defendants to his federal suit because their presence would destroy diversity. The plaintiff settled with the defendants in federal court but did not release the parties in the state action. Our Supreme Court noted that the plaintiff did everything possible to preserve his suit against the state defendants, but the federal court denied all of his motions. 242 Kan. at 865. Like Mathis, our Supreme Court held that the state suit could continue because "[t]here has not yet been a comparison of fault at trial." Anderson, 252 Kan. at 866. In Childs v. Williams, 243 Kan. 441, 442, 757 P.2d 302 (1988), a second action was filed after a friendly suit approved a settlement without making any determination of fault. Defendant attempted to distinguish the case from Mathis by noting that

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Mathis involved the dismissal of a case, whereas the present case was resolved by a judgment, albeit one whose sole purpose was to approve a settlement, and the fact the first suit in Mathis was already pending when the other suit was dismissed. Childs, 243 Kan. at 442-43. Our Supreme Court held that the argument was unpersuasive, explaining Mathis held "each plaintiff must be allowed a trial judicially determining comparative fault, regardless of whether the plaintiff had the opportunity to do so earlier in one action." Childs, 243 Kan. at 443. Our Supreme Court noted that it modified the one-action rule in Mathis to allow a plaintiff to sue another tortfeasor after a settlement with another when no judicial determination of comparative fault existed. Childs, 243 Kan. at 443. In Mick v. Mani, 244 Kan. 81, 93, 766 P.2d 147 (1988), our Supreme Court held that its recent cases in Mathis, Anderson, and Childs created an exception to the one-action rule when there had been no previous judicial determination of fault. The court noted the one-action rule could be more accurately described as the "one-trial rule" because the issue in those cases was whether a plaintiff was entitled to a trial—not whether the plaintiff could have two trials. Mick, 244 Kan. at 93. Since Mick, there has been little development in the realm of the one-action rule. The cases discussed above established that the one-action rule does not limit the plaintiff to a single suit. The key question is not if a plaintiff has already pursued a lawsuit, but if plaintiff has had the opportunity to have a judicial determination of comparative fault at trial. See Cook v. Freeman, 16 Kan. App. 2d 555, 563, 825 P.2d 1185 (1992) ("These decisions hold that, so long as there has been no judicial determination of comparative fault, a plaintiff may bring separate actions against different defendants seeking to recover damages arising out of the same occurrence. Thus, a plaintiff is not limited to 'one action.'"). A plaintiff may pursue separate actions against tortfeasors when there has been no judicial determination of comparative fault. Once a plaintiff proceeds to trial and comparative fault is judicially determined, the plaintiff can no longer pursue other suits for damages arising out of the same occurrence. 16 Kan. App. 2d at 563. The case before us is Rodina's second action. In 2019, Rodina filed his first suit against Dr. Taylor, Cummings, and Timothy T.

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Taylor, DDS, PA. Dr. Taylor was later dismissed from that action, but Cummings and Timothy T. Taylor, DDS, PA remained as defendants although they did not file an answer or otherwise plead to Rodina's petition. The trial court ruled that the defendants were in default on Rodina's allegations that the defendants had violated the KCPA and HIPAA. The trial court entered default judgment against the defendants and awarded Rodina damages and attorney fees. While the trial court entered judgment against Cummings and Timothy T. Taylor, DDS, PA, it expressly did not make any rulings on comparative fault: "Because Judgment is entered by default, no apportionment of fault or comparative negligence assess- ment is made or needs to be made." Rodina filed this suit after learning Dr. Castaneda was the dentist who had performed the work on his teeth. Dr. Castaneda argues that Rodina received his judgment and cannot try to collect again by filing a second suit against him. But Dr. Castaneda ignores the development in the one-action rule in Mathis, Anderson, and Childs. A plaintiff is entitled to a trial and a judicial determination of comparative fault. See Childs, 243 Kan. at 443. When the trial court entered default judgment against Cummings and Timothy T. Taylor, DDS, PA, it made no apportionment of fault or determination of comparative fault. Dr. Castaneda is correct that Rodina cannot recover additional damages from him. The trial court in the original suit awarded damages for the entire action. Rodina, however, is entitled to a judicial determination of comparative fault, and, if it is determined that Dr. Castaneda was at least partially at fault, the trial court can order Dr. Castaneda to pay his proportionate share of the damages. The fact that Rodina's first action was decided by default judgment does not alter this reasoning. Nothing in the language of the cases explaining the one-action rule limits the requirement that a plaintiff is entitled to one adjudication of comparative fault to only settlements. See Mathis, 242 Kan. at 793-94; Anderson, 242 Kan. at 857; Childs, 243 Kan. at 443. Instead, our Supreme Court has consistently held that the issue was whether the plaintiff had a trial to judicially determine comparative fault—not how the first lawsuit in a case was resolved.

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The trial court here erred in granting Dr. Castaneda's motion to dismiss. Rodina is entitled to a trial and judicial determination of comparative fault. Thus, we reverse the trial court's grant of Dr. Castaneda's motion to dismiss and remand for further proceedings consistent with this opinion.

Reversed and remanded with directions.