OFFICIALLY SELECTED
CASES ARGUED AND DETERMINED
IN THE
COURT OF APPEALS
OF THE
STATE OF KANSAS
Reporter:
S
ARA R. STRATTON
Advance Sheets
2d Series
Volume 63, No. 3
Opinions filed in April - June 2023
Cite as 63 Kan. App. 2d
Copyright 2023 by
Sara R. Stratton, Official Reporter
For the use and benefit of the State of Kansas
JUDGES AND OFFICERS OF THE KANSAS
COURT OF APPEALS
(III)
CHIEF JUDGE:
H
ON. KAREN ARNOLD-BURGER ………………… Overland Park
JUDGES:
HON. HENRY W. GREEN, JR. ..................................... Leavenworth
H
ON. THOMAS E. MALONE ............................................... Wichita
H
ON. STEPHEN D. HILL ......................................................... Paola
H
ON. G. GORDON ATCHESON ....................................... Westwood
H
ON. DAVID E. BRUNS ....................................................... Topeka
H
ON. KIM R. SCHROEDER ................................................ Hugoton
H
ON. KATHRYN A. GARDNER ........................................... Topeka
H
ON. SARAH E. WARNER .................................................. Lenexa
H
ON. AMY FELLOWS CLINE………..……………...Valley Center
H
ON. LESLEY ANN ISHERWOOD…………..…….........Hutchinson
H
ON. JACY J. HURST
..
..………………........................... Lawrence
H
ON. ANGELA D. COBLE ..................................................... Salina
H
ON. RACHEL L. PICKERING .............................................. Topeka
OFFICERS:
Reporter of Decisions .................................... SARA R. STRATTON
Clerk ............................................................... D
OUGLAS T. SHIMA
Judicial Administrator…………...…………...S
TEPHANIE SMITH
Disciplinary Administrator .............................. G
AYLE B. LARKIN
KANSAS COURT OF APPEALS
TABLE OF CASES
63 Kan. App. 2d No. 3
PAGE
(IV)
Corazzin v. Edward D. Jones & Co. ........................................ 489
Corbett v. City of Kensington .................................................. 466
Duling v. Mid-American Credit Union .................................... 428
In re Parentage of W.L. and G.L.............................................. 533
Martin v. Mid-Kansas Wound Specialists, P.A. ...................... 509
State v. Degand ........................................................................ 457
State v. Ralston ........................................................................ 447
State v. Stohs ............................................................................ 500
UNPUBLISHED OPINIONS
OF THE COURT OF APPEALS
DOCKET DISTRICT DATE OF
TITLE NUMBER COURT DECISION DECISION
(V)
Aql v. Peterson .....................
125,038
Douglas ................
05/12/2023
Affirmed
Banks v. State ......................
125,100
Sedgwick .............
06/30/2023
Affirmed
Benchmark Property
Remodeling v.
Grandmothers, Inc. ..........
124,160
Shawnee...............
06/02/2023
Reversed;
remanded
Bowen v. State .....................
125,631
Marion .................
06/16/2023
Affirmed
Dean v. State ........................
124,885
Sedgwick .............
05/12/2023
Affirmed
Decavele v. Winbury
Operating .........................
125,651
Wyandotte ...........
05/26/2023
Affirmed
Denney v. State ....................
124,883
Sedgwick .............
05/12/2023
Affirmed
Duling v. Mid-American
Credit Union ....................
124,971
Sedgwick .............
05/05/2023
Affirmed
Evans v. State .......................
125,321
Sedgwick .............
05/26/2023
Affirmed
Filbert v. State ......................
125,155
Wyandotte ...........
05/19/2023
Reversed;
remanded with
directions
Foster-Koch v. Shawnee
County Health Dept. ........
125,088
125,089
125,090
125,091
Shawnee...............
06/09/2023
Appeal dismissed
Grubbs v. Kansas
Corporation Comm'n .......
125,311
Shawnee...............
06/09/2023
Affirmed
In re A.S. .............................
125,534
Leavenworth ........
06/09/2023
Affirmed
In re A.T. .............................
125,654
Shawnee...............
05/26/2023
Affirmed
In re B.S. ..............................
125,843
Johnson ................
06/23/2023
Affirmed
In re Care and Treatment of
Ritchie .............................
125,260
Barton ..................
06/09/2023
Affirmed
In re Care and Treatment of
Smith ...............................
124,832
Wyandotte ...........
05/05/2023
Affirmed
In re D.M. ............................
125,894
Douglas ................
06/23/2023
Affirmed
In re D.S. .............................
125,732
Sedgwick .............
06/02/2023
Affirmed
In re Equalization Appeals of
NFM of Kansas, Inc. ........
124,842
BOTA ..................
05/19/2023
Affirmed
In re J.A. ..............................
125,516
Ford .....................
06/02/2023
Affirmed
In re O.C. .............................
125,490
Leavenworth ........
06/02/2023
Affirmed
In re S.R. ..............................
125,161
Wyandotte ...........
06/16/2023
Affirmed
Junction City Police Dept. v.
$454,280 U.S. Currency ..
125,181
Geary ...................
06/30/2023
Affirmed
Langvardt v. Innovative
Livestock Svcs. ................
125,517
Workers Comp. Bd
06/30/2023
Affirmed
Minahan v. State ..................
125,255
Sedgwick .............
05/19/2023
Affirmed
Moon v. Steelberg ................
125,343
Sedgwick .............
05/12/2023
Affirmed
Noriega v. State....................
125,131
Jackson ................
05/19/2023
Affirmed
Ong Law Firm v. Demster ...
124,809
Johnson ................
05/05/2023
Affirmed
Ransom v. State ...................
124,586
Sedgwick .............
05/26/2023
Affirmed
DOCKET DISTRICT DATE OF
TITLE NUMBER COURT DECISION DECISION
(VI)
State v. Aranda .....................
125,432
Barton ..................
06/09/2023
Affirmed in part;
reversed in
part; remanded
with directions
State v. Arita ........................
124,928
Wyandotte ...........
06/09/2023
Convictions
reversed;
sentences
vacated
State v. Armstrong ...............
124,709
Douglas ................
06/09/2023
Affirmed in part;
reversed in
part; remanded
with directions
State v. Bazy ........................
125,434
Wyandotte ...........
06/16/2023
Affirmed
State v. Brown .....................
125,080
Sedgwick .............
05/12/2023
Affirmed in part;
dismissed in
part
State v. Charlsen ..................
124,795
Sedgwick .............
05/19/2023
Appeal dismissed
State v. Davis .......................
125,300
Sedgwick .............
05/19/2023
Appeal dismissed
State v. Dishner ....................
124,597
Shawnee...............
06/09/2023
Affirmed
State v. Dowdell ...................
124,620
Douglas ................
05/05/2023
Conviction
reversed;
sentence
vacated; case
remanded with
directions
State v. Garcia-Oregel ..........
125,536
Ness .....................
06/09/2023
Affirmed
State v. Hooks ......................
125,445
Wyandotte ...........
05/19/2023
Affirmed
State v. Hormell ...................
124,252
Douglas ................
06/09/2023
Affirmed
State v. Hunter .....................
125,385
Ness .....................
06/30/2023
Affirmed in part;
reversed in
part; remanded
with directions
State v. Ibarra-Chu ...............
124,171
Geary ...................
05/26/2023
Affirmed
State v. Johnson ...................
125,332
Graham ................
06/02/2023
Affirmed
State v. Knight .....................
124,198
Sedgwick .............
06/23/2023
Affirmed
State v. Lawler .....................
125,333
Sedgwick .............
05/12/2023
Affirmed
State v. Lingenfelter .............
124,907
Sedgwick .............
05/12/2023
Affirmed
State v. Mans .......................
125,252
Marion .................
05/12/2023
Sentence vacated
in part; case
remanded with
directions
State v. Moeller ....................
124,611
Jefferson ..............
06/30/2023
Affirmed
State v. Moore ......................
124,610
Sedgwick .............
06/16/2023
Affirmed in part;
reversed in
part; remanded
with directions
DOCKET DISTRICT DATE OF
TITLE NUMBER COURT DECISION DECISION
(VII)
State v. Moore ......................
124,610
Sedgwick .............
05/05/2023
Affirmed part;
reversed in
part; remanded
with directions
State v. Noland .....................
125,194
Riley ....................
06/02/2023
Vacated in part;
remanded with
directions
State v. Owens .....................
125,157
Sumner.................
06/16/2023
Affirmed
State v. Parkins ....................
125,134
125,135
Barton
..................
05/26/2023
Affirmed in part;
dismissed in
part
State v. Patton ......................
124,987
Crawford ..............
06/23/2023
Affirmed
State v. Ray ..........................
124,784
Leavenworth ........
05/05/2023
Affirmed
State v. Reese .......................
124,947
124,950
Atchison...............
06/02/2023
Affirmed
State v. Richmond ................
124,973
Johnson ................
06/23/2023
Affirmed
State v. Rios .........................
124,604
Johnson ................
06/16/2023
Affirmed
State v. Robben ....................
124,392
Jefferson ..............
05/19/2023
Affirmed
State v. Russ.........................
124,233
Trego ...................
05/12/2023
Convictions
affirmed;
sentence
vacated in part;
remanded with
directions
State v. Schuckman ..............
125,009
Finney ..................
05/26/2023
Affirmed
State v. Scott ........................
125,171
Harvey .................
05/19/2023
Sentence vacated;
case remanded
with directions
State v. Strahm .....................
125,489
Douglas ................
06/02/2023
Sentence vacated;
case remanded
with directions
State v. Stubbs .....................
125,003
Douglas ................
06/30/2023
Affirmed
State v. Taylor ......................
124,802
Sedgwick .............
06/09/2023
Affirmed
State v. Vaca ........................
124,691
Wyandotte ...........
06/02/2023
Affirmed
State v. Vazquez-Carmona ...
124,801
Wyandotte ...........
06/02/2023
Affirmed
State v. Wade .......................
125,049
125,050
Thomas ................
05/19/2023
Affirmed in part;
vacated in part
State v. Wade .......................
125,320
Shawnee...............
05/05/2023
Affirmed
State v. Waisner ...................
125,175
Shawnee...............
06/09/2023
Affirmed
State v. Wilson .....................
124,759
Norton ..................
06/30/2023
Reversed;
remanded
State v. Wright .....................
124,660
Saline ...................
06/23/2023
Affirmed in part;
reversed in
part; remanded
with directions
State v. Yohn .......................
124,830
Reno ....................
05/05/2023
Affirmed
Warner v. Elftman ................
125,342
Sedgwick .............
06/16/2023
Affirmed
SUBJECT INDEX
63 Kan. App. 2d No. 3
(Cumulative for Advance sheets 1, 2 and 3
Subjects in this Advance sheets are marked with *
PAGE
(VIII)
ADMINISTRATIVE LAW:
Burden of Proof of Invalid Agency Action on Challenging Party. The party
challenging the validity of an agency's action bears the burden of proving such
invalidity under K.S.A. 77-621(a)(1). Blue Valley Tele-Communications, Inc.
v. Kansas Corporation Comm'n ……………………….………..…..…. 381
No Deference to Agency's Statutory Interpretation by Appellate Court.
The appellate court does not extend deference to an agency's statutory in-
terpretation. Blue Valley Tele-Communications, Inc. v. Kansas Corporation
Comm'n …………………………………………..……………..……... 381
Statutory Limited Review of Agency's Action by District Court and Ap-
pellate Court. Appellate courts exercise the same statutorily limited review
of the agency's action as does the district court, as though the appeal had
been made directly to the appellate court. K.S.A. 77-601 et seq.
Blue Valley Tele-Communications, Inc. v. Kansas Corporation Comm'n
……………………………………………………………..……..……. 381
APPEAL AND ERROR:
District Court's Grant of Motion to Dismiss for Failure to State a
Claim—Appellate Review. Whether a district court erred by granting a
motion to dismiss for failure to state a claim is a question of law subject to
unlimited review. An appellate court will view the well-pleaded facts in a
light most favorable to the plaintiff and assume as true those facts and any
inferences reasonably drawn from them. If those facts and inferences state
any claim upon which relief can be granted, then dismissal is improper. Dis-
missal is proper only when the allegations in the petition clearly show the
plaintiff does not have a claim.
League of Women Voters of Kansas v. Schwab ……………….……….. 187
APPELLATE PROCEDURE:
Final Decision in Actions Appealed to Court of Appeals by Statute—
Exception if Required to Appeal to Supreme Court. A final decision in
any action, except in an action where a direct appeal to the Supreme Court
is required by law, may be appealed to the Kansas Court of Appeals as a
matter of right under K.S.A. 2021 Supp. 60-2102(a)(4).
League of Women Voters of Kansas v. Schwab ………….…………….. 187
Order Involving Kansas Constitution Is Appealed to Court of Appeals
by Statute. An order that involves the Constitution of this state may be ap-
pealed to the Kansas Court of Appeals as a matter of right under K.S.A.
2021 Supp. 60-2102(a)(3).
League of Women Voters of Kansas v. Schwab ………………………... 187
63 KAN. APP. 2d SUBJECT INDEX IX
PAGE
ARBITRATION:
Contract Law Determines Whether Agreement to Arbitrate. Whether the par-
ties agreed to arbitrate is determined by contract law.
Duling v. Mid American Credit Union ………………………………..…… 428*
Enforceable Agreement to Arbitrate—Burden on Moving Party to Present
Evidence. A party who moves to compel arbitration has the "initial summary-
judgment-like burden" of presenting enough evidence to show an enforceable
agreement to arbitrate. Duling v. Mid American Credit Union ………...…… 428*
Requirement of Agreement to Arbitrate Dispute. A party cannot be required to
arbitrate a dispute without an agreement to arbitrate.
Duling v. Mid American Credit Union ……………………..……………… 428*
ATTORNEY AND CLIENT:
Attorney Fees Mandated by Statute—Court Must Award Fees Based
on Statute. When the language of an attorney fees statute makes an award
mandatory, the district court has no discretion and must award attorney fees
according to the statute. Wickham v. City of Manhattan …………..…… 294
District Court an Expert in Area of Attorney Fees—Determination of
Reasonableness of Fee—Consideration of KRPC 1.5(a) Factors. The
district court is considered an expert in the area of attorney fees and can
draw on and apply its own knowledge and expertise in evaluating their
worth. However, in determining the reasonableness of a requested attorney
fee, the factors in Kansas Rule of Professional Conduct 1.5(a) (2023 Kan.
S. Ct. R. at 333) should be considered. City of Atchison v. Laurie …...... 310
District Court's Authority to Grant Attorney Fees—Appellate Review.
When a district court has the authority to grant attorney fees, its decision
whether to award fees is reviewed for an abuse of discretion.
Wickham v. City of Manhattan …………………………..…………..… 294
CITIES AND MUNICIPALITIES:
Conditional-Use Permits Issued by Governing Bodies—Must Be Issued
in Compliance with Statute. Since our Supreme Court has held governing
bodies must follow the procedures laid out in K.S.A. 2021 Supp. 12-757
when issuing conditional-use permits, conditional-use permits which were
not issued in compliance with this statute are void and unenforceable.
American Warrior, Inc. v. Board of Finney ……………………….…… 123
Statutory Notice Provision Not Prerequisite to Contract Claim. Sub-
stantial compliance with the notice provisions of K.S.A. 12-105b(d) is not
a prerequisite to bringing a contract claim against a municipality.
City of Atchison v. Laurie ………………………………..…….………. 310
X SUBJECT INDEX 63 KAN. APP. 2d
PAGE
CIVIL PROCEDURE:
Accrual of Cause of Action under K.S.A. 60-513(b). Under K.S.A. 60-
513(b), a cause of action accrues as soon as the right to maintain a legal
action arises; that is, when the plaintiff could first have filed and prosecuted
his or her action to a successful conclusion. Lopez v. Davila …….……. 147
Actions Are Prosecuted in Name of Real Party in Interest. An action
must be prosecuted in the name of the real party in interest. If a city violates
a detainee's constitutional rights, then the city is liable to the detainee for
damages, not the county sheriff. City of Atchison v. Laurie …..…….…. 310
Award of Attorney Fees under Statute—Application to Municipalities.
The plain language of K.S.A. 2022 Supp. 60-2006, that calls for the award
of attorney fees as costs in certain cases, does not bar application of the
statute to property damage cases of first impression, or in property damage
lawsuits involving municipalities. Cities are not immune from its rule.
Wickham v. City of Manhattan ………………………..……………….. 294
Commencement of Limitations Period under K.S.A. 60-513(b)— Three
Triggering Events. Under K.S.A. 60-513(b), we review three triggering
events to determine when the limitations period commences: (1) the act
which caused the injury; (2) the existence of a substantial injury; and (3) the
victim's awareness of the fact of injury. Without the existence of a substan-
tial injury, though, the consideration of the reasonably ascertainable nature
of the injury is irrelevant. Lopez v. Davila ……………………………... 147
Motion for Dismissal by Defendant—District Court Resolves Factual
Disputes in Plaintiff's Favor. When a defendant moves for dismissal under
K.S.A. 60-212(b)(6), the district court must resolve every factual dispute in
the plaintiff's favor. The court must assume all the allegations in the peti-
tion—along with any reasonable inferences from those allegations—are
true. The court then determines whether the plaintiff has stated a claim
based on the plaintiff's theory or any other possible theory. Dismissal is im-
proper when the well-pleaded facts and inferences state any claim upon
which relief can be granted.
Minjarez-Almeida v. Kansas Bd. of Regents ……………..……………..225
Motion to Dismiss—District Court's Considerations. In most instances,
a district court ruling on a motion to dismiss may only consider the plain-
tiff's petition and any documents attached to it. But when a petition refers
to an unattached document central to the plaintiff's claim, a defendant may
submit—and a court may consider—an undisputedly authentic copy of the
document without transforming the motion to dismiss into a motion for
summary judgment. Minjarez-Almeida v. Kansas Bd. of Regents ..….... 225
Negligence Claims—Accrual of Cause of Action under K.S.A. 60-
513(b). Under K.S.A. 60-513(b), the cause of action listed in K.S.A. 60-
513(a) "shall not be deemed to have accrued until the act giving rise to the
cause of action first causes substantial injury, or, if the fact of injury is not
reasonably ascertainable until some time after the initial act, then the period
63 KAN. APP. 2d SUBJECT INDEX XI
PAGE
of limitation shall not commence until the fact of injury becomes reasonably
ascertainable to the injured party." Lopez v. Davila ………………...…. 147
— File within Two Years from Negligent Act. Under K.S.A. 60-513(a)(4), a
plaintiff must commence his or her negligence claims within two years from the
date of the negligent act. Lopez v. Davila …..…………………………….…. 147
Notice Pleading in Kansas—Ultimate Decision of Legal Issues and The-
ories in a Case Is Pretrial Order. Under Kansas' notice pleading, the pe-
tition is not intended to govern the entire course of the case. Rather, the
ultimate decision as to the legal issues and theories on which the case will
be decided is the pretrial order.
League of Women Voters of Kansas v. Schwab ………….…………….. 187
Requirement of Plaintiff's Petition—Statement of Claim Giving Fair
Notice to Defendant. The Kansas rules of civil procedure require a plain-
tiff's petition to include a short and plain statement of a claim that will give
the defendant fair notice of what the plaintiff's claim is and the ground upon
which it rests. Minjarez-Almeida v. Kansas Bd. of Regents ..………..…. 225
Substantial Injury Definition—Actionable Injury. The term "substantial
injury" in K.S.A. 60-513(b) means the victim must have reasonably ascer-
tainable injury to justify an action for recovery of damages; in other words,
an "actionable injury." Lopez v. Davila ……………………………..…. 147
Venue Is Procedural Matter—Considerations of Venue. Venue de-
scribes the proper or possible place for a lawsuit to proceed. Venue is not a
jurisdictional matter, but a procedural one. Considerations of venue involve
practical and logistical aspects of litigation—the convenience of the parties
and witnesses and the interests of justice. In re Estate of Raney …….….. 43
CONSTITUTIONAL LAW:
Burden of Proof on Party Asserting Takings Claim. The burden of proving that
the taking is confiscatory is on the party asserting the takings claim.
Blue Valley Tele-Communications, Inc. v. Kansas Corporation Comm'n ……. 381
Claim of Excessive Force during Seizure—Analysis under Fourth
Amendment's Objective Reasonableness Standard. The United States
Supreme Court has held that all claims that law enforcement used excessive
force during a seizure should be analyzed under the Fourth Amendment's
objective reasonableness standard. State v. Cline …………………….... 167
Constitutions Do Not Prohibit Use of Evidence Obtained in Violation
of Provisions—Exclusionary Rule Created as Deterrent by United
States Supreme Court. Neither the Fourth Amendment to the United
States Constitution nor section 15 of the Kansas Constitution Bill of Rights
expressly prohibits the use of evidence obtained in violation of their respec-
tive provisions. Instead, to supplement the bare text of the Fourth Amend-
ment, the United States Supreme Court created the exclusionary rule as a
deterrent barring the introduction of evidence obtained in violation of the
XII SUBJECT INDEX 63 KAN. APP. 2d
PAGE
Fourth Amendment in criminal prosecutions. The exclusionary rule is not
an individual right and applies only when it results in appreciable deter-
rence. State v. Cline ………………………………………….……….... 167
Determination Whether Reasonable Seizure—Application of Test Bal-
ancing Nature and Quality of Intrusion on Individual against Govern-
mental Interest. Determining whether the force used to carry out a partic-
ular seizure is reasonable under the Fourth Amendment requires a careful
balancing of the nature and quality of the intrusion on the individual's
Fourth Amendment interests against the countervailing governmental inter-
ests at stake. The proper application of this test requires careful attention to
the facts and circumstances of each case. State v. Cline ……………...... 167
Fifth Amendment's Takings Clause—Application to State and Local Gov-
ernment Entities Through Fourteenth Amendment. The Fifth Amendment to
the United States Constitution prohibits the taking of private property for public
use without just compensation. The protections of the Takings Clause apply to the
actions of state and local government entities through the Fourteenth Amendment
to the United States Constitution.
Blue Valley Tele-Communications, Inc. v. Kansas Corporation Comm’n …….381
Objective Facts to Support Public-safety Stop Required to Comport
with Fourth Amendment. To comport with the Fourth Amendment to the
United States Constitution, public-safety encounters must be supported by
objective, specific, and articulable facts which suggest the stop is necessary
to serve a caretaking function. State v. McDonald ……...………………. 75
Presumption State Action Is Constitutional—Dilutes Constitutional
Protections. Presuming a state action alleged to infringe a fundamental
right is constitutional dilutes the protections established by our Constitution.
League of Women Voters of Kansas v. Schwab …………….………….. 187
Protection from Unreasonable Searches and Seizures under Both Con-
stitutions. Both the United States and Kansas Constitutions protect against
unreasonable searches and seizures. State v. Cline ………………..….... 167
Reduction of Utility's Profit or Rate of Return Does Not Establish Taking.
The mere reduction of a utility's profit or rate of return by some unproven amount
does not, without more, establish an unconstitutional taking.
Blue Valley Tele-Communications, Inc. v. Kansas Corporation Comm’n …….381
Right to Testify on One Own's Behalf at Criminal Trial—Due Process Right.
The right to testify on one's own behalf at a criminal trial is a right essential to due
process of law in an adversary process. State v. Cantu ………………………. 276
Right to Vote Is Foundation of Representative Government. The right
to vote is the foundation of a representative government that derives its
power from the people. All basic civil and political rights depend on the
right to vote. League of Women Voters of Kansas v. Schwab ………….. 187
63 KAN. APP. 2d SUBJECT INDEX XIII
PAGE
Right to Vote Is Fundamental Right under Kansas Constitution— Ap-
plication of Rule of Strict Scrutiny. The right to vote is a fundamental
right protected by the Kansas Constitution. The rule of strict scrutiny applies
when a fundamental right is implicated. The rule of strict scrutiny applies
here. League of Women Voters of Kansas v. Schwab …….…………….. 187
Supreme Court Holding that Legislature Must Not Deny or Impede
Constitutional Right to Vote. The Kansas Supreme Court has held that the
Legislature "must not, directly or indirectly, deny or abridge the constitu-
tional right of the citizen to vote or unnecessarily impede the exercise of
that right." State v. Beggs, 126 Kan. 811, 816, 271 P. 400 (1928).
League of Women Voters of Kansas v. Schwab …………….………….. 187
CONTRACTS:
Acceptance of Contract—Requires Outward Expressions of Assent. Ac-
ceptance of a contract is measured not by the parties' subjective intent, but rather by
their outward expressions of assent. Duling v. Mid American Credit Union …... 428*
Breach of Contract Claim against University—Requirements. To main-
tain a breach-of-contract claim against a university, a plaintiff must do more
than simply allege that the education was not good enough. But contract
claims are not educational-malpractice claims when they point to an identi-
fiable contractual promise that the university failed to honor.
Minjarez-Almeida v. Kansas Bd. of Regents ……………….....……….. 225
Interpretation of Ambiguous Language—Interpreted against Drafter. We
interpret ambiguous language in a written document against the drafter.
Duling v. Mid American Credit Union …………………………………….... 428*
CREDITORS AND DEBTORS:
Debtor May Direct How Repayments for Multiple Debts Are Applied
under Common Law Rule in Kansas. Kansas courts recognize the com-
mon law rule that a debtor who owes a creditor multiple debts may direct
how repayments should be applied; otherwise, the creditor may elect to ap-
ply any payment as the creditor chooses.
Martin v. Mid-Kansas Wound Specialists, P.A. ………..…………….. 509*
CRIMINAL LAW:
Admissibility of Prior Crimes—Evidence of Sexual Misconduct Must
be in 60-455(g) Listing of Acts or Offenses to Be Admissible under 60-
455(d).
K.S.A. 2021 Supp. 60-455(g) provides an exclusive listing of the
acts or offenses which constitute an "'act or offense of sexual misconduct'"
as that term is used in K.S.A. 2021 Supp. 60-455(d). Therefore, evidence of
the defendant's commission of another act or offense of sexual misconduct
must satisfy subsection (g)'s definition before it can be admissible under
subsection (d). State v. Scheetz …………………………..………………. 1
XIV SUBJECT INDEX 63 KAN. APP. 2d
PAGE
Claim of Multiple Acts Issue—Challenge to Sufficiency of Evidence.
The defendant's claim that the State both submitted evidence of multiple
acts but failed to present sufficient evidence from which a jury could unan-
imously agree on the underlying act supporting each conviction, and that
the unanimity instruction did not cure the multiple acts issue, is essentially
a challenge to the sufficiency of the evidence and not a constitutional chal-
lenge to the unanimity of the verdict. State v. Ninh ………….………….. 91
Conviction for Rape and Aggravated Criminal Sodomy—No Evidence
Required to Be Presented Defendant Made Verbal Threat of Specific
Harm. In convicting a defendant for rape and aggravated criminal sodomy,
a rational fact-finder may find that a victim was sufficiently overcome by
an expressed fear of specific harm even when no evidence is presented that
the defendant ever made verbal threats of that same specific harm.
State v. Ninh …………………………………………………………….. 91
Court's Discretion to Order Competency Evaluation for Defendant—
Appellate Review. A district court has the discretion to order a competency
evaluation for a criminal defendant on its own initiative when it has a real
doubt that the offender possesses the sanity or mental capacity to properly
defend his or her case. The court's decision on the matter will not be dis-
turbed absent a clearly demonstrated abuse of its sound judicial discretion.
State v. Burris ……………………………………………….....………. 250
Interference with Law Enforcement Officer Not Alternative Offense of
Identity Theft—Identity Theft Definition. Interference with a law en-
forcement officer is not a more specific instance of identity theft. To the
contrary, identity theft prohibits different conduct, to wit: possessing some-
one else's personal identifying information and using it to deceive someone
for a benefit. State v. Stohs ………………………………...…………. 500*
Mistreatment of Dependent Adult—Criminal Prosecution for Neglect.
When a dependent adult living in a private residence is unable to tend to
their own needs, and the person caring for them neglects to provide or with-
holds life-sustaining care, with an awareness that such care is required, that
caretaker may be subject to criminal prosecution for such neglect.
State v. Burris …………………………………….…….………..…….. 250
— Neglect to Provide Life-Sustaining Care to Point of Death—Crimi-
nal Prosecution for Unintentional Reckless Second-degree Murder.
When an individual assumes sole responsibility for the physical and mental
health of a dependent adult, but neglects to provide or withholds such life-
sustaining care to the point of death, that individual may be subject to crim-
inal prosecution for the unintentional, reckless second-degree murder of that
dependent adult. State v. Burris …………….…..………..…………….. 250
— No Requirement that State Prove Independent Legal Duty to Victim.
Mistreatment of a dependent adult does not require the State to prove that
the offender had any independent legal duty to the victim. Once a person
63 KAN. APP. 2d SUBJECT INDEX XV
PAGE
affirmatively assumes the role of caregiver to a dependent adult, and dis-
courages or precludes others from filling that role, that person has the re-
sponsibility to act reasonably in fulfilling the obligations required of that
role. State v. Burris ……………………………..…………..………….. 250
— Statutory Definition. Mistreatment of a dependent adult includes know-
ingly omitting or depriving an individual 18 years of age or older, who is
cared for in a private residence, of the treatment, goods, or services neces-
sary to maintain their physical or mental health when that individual is un-
able to protect his or her own interests. State v. Burris …....…..……….. 250
No Requirement of Explicit Threats to Prove Victim Was Overcome by
Force or Fear. The State is not required to prove the defendant made ex-
plicit threats of physical force or violence in order to prove the victim of
rape or aggravated criminal sodomy was overcome by force or fear.
State v. Ninh …………………………………………………………….. 91
Prosecutorial Error—Can Occur in Probation Violation Hearing. Pros-
ecutorial error can occur in the context of a probation violation hearing.
State v. Ralston ………………………………………..……………… 447*
— Misstating Law if Characterize Grooming as Force Sufficient to Sus-
tain Conviction for Rape or Aggravated Criminal Sodomy. It is error for
a prosecutor to misstate the law by characterizing "grooming" as a form of
force sufficient to sustain a defendant's conviction for rape or aggravated
criminal sodomy in violation of K.S.A. 2021 Supp. 21-5503(a)(1)(A) and
K.S.A. 2021 Supp. 21-5504(b)(3)(A). State v. Ninh ……...…………….. 91
Sentencing—Burden on State to Prove Criminal History Score. The
State bears the burden to prove an offender's criminal history score by a
preponderance of the evidence. State v. Degand ……...……………… 457*
— Determination of Criminal History Score—Intent of Legislature to In-
clude All Prior Convictions and Adjudications. With some express exceptions,
the Legislature intended for all prior convictions and juvenile adjudications—in-
cluding convictions and adjudications occurring before implementation of the Sen-
tencing Guidelines Act—to be considered and scored for purposes of determining
an offender's criminal history score. State v. Degand …........................… 457*
— Inquiry of Prior Conviction—Modified Categorical Approach. When a
sentencing court is making an inquiry on the nature of an offender's prior convic-
tion, the court may use a modified categorical approach in its search. Such an ap-
proach means that the court can examine the charging documents of the old case,
any plea agreements, transcripts of plea hearings, findings of fact and conclusions
of law from any bench trial, as well as jury instructions and completed verdicts.
State v. Degand ………………………………………………………...… 457*
— K.S.A. 21-5109(d) Applicable When Multiple Crimes Charged for Same
Conduct. The sentencing rule contained in K.S.A. 2022 Supp. 21-5109(d) only
applies when the prosecutor charges the defendant with multiple crimes for the
same conduct. State v. Stohs …………….………………...………………. 500*
XVI SUBJECT INDEX 63 KAN. APP. 2d
PAGE
— Prior Convictions Deemed Unconstitutional Not Used for Scoring Pur-
poses. Prior convictions of a crime defined by a statute that has since been deter-
mined unconstitutional by an appellate court shall not be used for criminal history
scoring purposes. State v. Degand ……………....…………...………… 457*
Sixth Amendment Right to Jury Trial—Incorporated to State Criminal
Prosecutions—Right to Unanimous Verdict in Federal as well as State
Court Defendants. The Sixth Amendment right to a jury trial in federal
criminal cases is incorporated, via the Fourteenth Amendment, to state
criminal prosecutions thus extending the Sixth Amendment right to a unan-
imous verdict in federal criminal proceedings to state court criminal defend-
ants. State v. Ninh ……………………………………………………….. 91
Statutory Definition of Aggravated Criminal Sodomy When Victim Is
Overcome by Force or Fear—Not Unconstitutionally Vague. K.S.A.
2021 Supp. 21-5503(b)(3)(A), the statute defining aggravated criminal sod-
omy when the victim is overcome by force or fear, is not rendered uncon-
stitutionally vague by inclusion of language prohibiting a defendant from
asserting that they "did not know or have reason to know that the victim did
not consent to the sexual intercourse, that the victim was overcome by force
or fear, or that the victim was unconscious or physically powerless." K.S.A.
2021 Supp. 21-5504(f). The statute gives fair warning of what is prohibited
conduct and avoids arbitrary and unreasonable enforcement by leaving in-
tact the State's burden to prove a victim was overcome by force or fear.
State v. Ninh …………………………………………………………….. 91
Statutory Definition of Lewd and Lascivious Behavior—Presence De-
fined. The term "presence" in the statutory definition of the crime of lewd
and lascivious behavior, under K.S.A. 2021 Supp. 21-5513(a)(2), requires
exposure of a sex organ within another's physical presence, so the digital
transmission of a picture of a sex organ to another would not qualify.
State v. Scheetz …………………………………………………...………. 1
Statutory Definition of Rape When Victim Is Overcome by Force or Fear—
Not Unconstitutionally Vague. K.S.A. 2021 Supp. 21-5503(a)(1)(A), the statute
defining rape when the victim is overcome by force or fear, is not rendered uncon-
stitutionally vague by inclusion of language prohibiting a defendant from asserting
that they "did not know or have reason to know that the victim did not consent to
the sexual intercourse, that the victim was overcome by force or fear, or that the
victim was unconscious or physically powerless." K.S.A. 2021 Supp. 21-5503(e).
The statute gives fair warning of what is prohibited conduct and avoids arbitrary
and unreasonable enforcement by leaving intact the State's burden to prove a vic-
tim was overcome by force or fear. State v. Ninh …………………………….. 91
63 KAN. APP. 2d SUBJECT INDEX XVII
PAGE
Trial—Prosecutor's Reference to Defendant as Rapist Not Error. The
prosecutor's reference to the defendant as a rapist during closing argument
was not error when arguing that the evidence presented demonstrates the
defendant committed rape. State v. Ninh …………………….………….. 91
Victim's Fear Family Would Be Harmed Is Sufficient to Find Victim
Was Overcome by Force or Fear—Sustained Conviction for Rape or
Aggravated Criminal Sodomy. A victim's expressed fear that their family
stability or structure would be harmed if they did not submit to being raped
or sodomized is sufficient for a rational fact-finder to find the victim was
overcome by force or fear to sustain a defendant's conviction for rape or
aggravated criminal sodomy. State v. Ninh ……………………….…….. 91
DIVORCE:
Filing of Petition for Divorce—Each Spouse Becomes Owner of Vested In-
terest in All Property. It is well settled law in Kansas that upon the filing of a
petition for divorce each spouse becomes the owner of a vested, but undetermined,
interest in all the property individually or jointly held by them.
Martin v. Mid-Kansas Wound Specialists, P.A. ……………………………. 509*
Marital Property—Statutory Definition Includes All Property Owned or Ac-
quired by Either Spouse after Marriage. Under K.S.A. 2022 Supp. 23-2801,
marital property includes all property owned by married persons or acquired by
either spouse after the marriage.
Martin v. Mid-Kansas Wound Specialists, P.A. ………………….………… 509*
Third Party May Assert Interest in Property of Marital Estate as Intervenor
or Joining as Party in Divorce Action—Court Makes Equitable Division of
Marital Property and Determines Third Party's Interest. In Kansas, third par-
ties asserting an interest in property of a marital estate can intervene or be joined
as parties in a divorce action. In this situation, the divorce court's exclusive juris-
diction over the marital estate includes not only the power to equitably divide the
marital property between the spouses, but it also includes the power to determine
the third party's interest in the marital property and to what extent that interest may
be superior to the interest held by either spouse.
Martin v. Mid-Kansas Wound Specialists, P.A. ……………………..……... 509*
EQUITY:
Equitable Doctrine of Quantum Meruit—Definition and Require-
ments. Quantum meruit is an equitable doctrine based on a promise implied
in law that one will restore to the person entitled thereto that which in equity
and good conscience belongs to that person. It requires a benefit conferred
by the person claiming quantum meruit, an appreciation or knowledge of
the benefit by the recipient of the benefit, and the acceptance or retention
by the recipient of the benefit under circumstances that make it inequitable
for the recipient to retain the benefit without payment of its value.
Krigel & Krigel v. Shank & Heinemann ………………………..……… 344
XVIII SUBJECT INDEX 63 KAN. APP. 2d
PAGE
ESTOPPEL AND WAIVER:
Waiver Is Intentional Relinquishment of Known Right—Explicit or
Implied from Conduct or Inaction of Holder—Requirements. Waiver is
the intentional relinquishment of a known right. A waiver can be explicit or
it can be implied from the conduct or inaction of the holder of the right.
Waiver must be manifested in some unequivocal manner by some distinct
act or by inaction inconsistent with an intention to claim a right. While
waiver may be implied from acts or conduct warranting an inference of re-
linquishment of a right, there must normally be a clear, unequivocal, and
decisive act of the relinquishing party.
Krigel & Krigel v. Shank & Heinemann ………………………..……… 344
EVIDENCE:
Interlocutory Appeal Proper if Pretrial Order Suppresses or Excludes
Evidence—Considerations. An interlocutory appeal by the State is proper
when a pretrial order suppressing or excluding evidence substantially im-
pairs the State's ability to prosecute a case. In determining whether evidence
substantially impairs the State's ability to prosecute a case, we consider both
the State's burden of persuasion and its burden of production.
State v. Martinez-Diaz ……………………………..………….………. 363
Testimonial Hearsay Is Inadmissible—Exception. To protect a defend-
ant's constitutional confrontation rights, testimonial hearsay is inadmissible
unless the declarant is unavailable and the defendant had a prior opportunity
to cross-examine the declarant. State v. Martinez-Diaz ………..………. 363
JUDGMENTS:
Judgment Rendered with Jurisdiction and Subject Matter Is Final and
Conclusive—Exceptions. A judgment rendered by a court with jurisdiction
of the parties and the subject matter is final and conclusive unless it is later
modified on appeal or by subsequent legislation. Such a judgment cannot
legally be collaterally attacked. In re Parentage of W.L. and G.L. ...…. 533*
JURISDICTION:
Kansas District Courts have General Original Jurisdiction over All Civil and
Criminal Matters. Kansas district courts have general original jurisdiction over
all matters, both civil and criminal, unless otherwise provided by law. This means
that a district court has jurisdiction to hear all subject matters unless the legislature
provides that it does not or that jurisdiction lies elsewhere.
In re Estate of Raney ………………………………………...………………. 43
Organization Suffers Cognizable Injury if Defendant's Action Impairs Its
Ability to Carry Out Activities. An organization has suffered a cognizable injury
when the defendant's action impairs the organization's ability to carry out its activ-
ities and the organization must divert resources to counteract the defendant's ac-
tion. League of Women Voters of Kansas v. Schwab …….…….…………….. 187
.
63 KAN. APP. 2d SUBJECT INDEX XIX
PAGE
Party Must Demonstrate Standing—Cognizable Injury and Causal Connec-
tion Requirements. To demonstrate standing, a party must show a cognizable in-
jury and establish a causal connection between the injury and the challenged con-
duct. A cognizable injury occurs when the party personally suffers an actual or
threatened injury as a result of the challenged conduct. A threatened injury must
be "impending" and "probable."
League of Women Voters of Kansas v. Schwab ………………….………….. 187
Subject Matter Jurisdiction—Court's Power to Hear and Decide Particular
Type of Action. Subject-matter jurisdiction is the power of a court to hear and
decide a particular type of action. Kansas district courts' general original jurisdic-
tion includes the authority to hear probate proceedings. In re Estate of Raney .... 43
KANSAS CONSTITUTION:
Grant of Judicial Power of State to Courts—Definition of Standing. Article 3,
section 1 of the Kansas Constitution grants the "judicial power" of the state to the
courts. Judicial power is the power to hear, consider, and determine "controver-
sies" between litigants. For an actual controversy to exist, a petitioner must have
standing. Standing "means the party must have a personal stake in the outcome."
Standing is a component of subject matter jurisdiction. It presents a question of law
and can be raised at any time.
League of Women Voters of Kansas v. Schwab ……………..…….…...…….. 187
KANSAS CORPORATION COMMISSION:
Constitutional Protection for Utilities. The guiding principle in utility
cases has been that the Constitution protects utilities from being limited to
a charge for the property serving the public which is so unjust as to be con-
fiscatory. Blue Valley Tele-Communications, Inc. v. Kansas Corporation
Comm'n ……………………………………..………………..…..……. 381
Regulation of Utilities Can Diminish Value Creating Compensable Taking.
The government regulation of privately owned utilities can diminish the utilities'
value to a degree creating a constitutionally compensable taking. Blue Valley Tele-
Communications, Inc. v. Kansas Corporation Comm'n …………….....……. 381
LEGISLATURE:
Claims Based on Express Contract—Exception to Statutory Proce-
dures. Claims arising from express contracts are not subject to the proce-
dure set forth in K.S.A. 46-903 and K.S.A. 46-907.
Minjarez-Almeida v. Kansas Bd. of Regents ……………………..……. 225
Claims Based on Implied Contracts against the State—Statutory Re-
quirements. The Kansas Supreme Court has interpreted K.S.A. 46-903 and
K.S.A. 46-907 to create a statutory requirement that claims based on im-
plied contracts must be submitted to and considered by the Joint Committee
on Special Claims before those claims may be presented in a lawsuit.
Minjarez-Almeida v. Kansas Bd. of Regents ………………..…………. 225
XX SUBJECT INDEX 63 KAN. APP. 2d
PAGE
KANSAS OFFENDER REGISTRATION ACT:
Crime of Involuntary Manslaughter While Driving under Influence of Alco-
hol Excluded from Requirement of Registration. Any violation of K.S.A. 2020
Supp. 21-5405(a)(3), as it existed both before and after July 1, 2011, is excluded
from the list of enumerated offenses that trigger automatic registration as a violent
offender under the Kansas Offender Registration Act. State v. Buzzini ….....… 335
MANDAMUS:
Writ of Mandamus—Definition. A writ of mandamus seeks to enjoin an
individual or to enforce the personal obligation of the individual to whom it is ad-
dressed and is appropriate where the respondent is not performing or has ne-
glected or refused to perform an act or duty, the performance of which the
petitioner is owed as a clear right. City of Atchison v. Laurie …..….….. 310
MOTOR VEHICLES:
Statutory Definition of Operating Vehicle. A driver who is in actual physical
control of the machinery of a vehicle, causing such machinery to move by engag-
ing the transmission and pressing the gas pedal, is operating the vehicle within the
meaning of K.S.A. 2020 Supp. 8-1002(a)(2)(A).
Jarmer v. Kansas Dept. of Revenue …………………………..………...…… 37
PARENT AND CHILD:
Kansas Parentage Act— Judgment under Act Is Determinative for All Pur-
poses. The judgment of the court determining parentage under the Kansas Parent-
age Act, K.S.A. 2022 Supp. 23-2201 et seq., is "determinative for all purposes"
when all necessary parties have been joined. K.S.A. 2022 Supp. 23-2215(a). When
a necessary party has not been joined, such a judgment is not divested of jurisdic-
tion but has only the force and effect of a finding of fact necessary to determine a
party's duty of support. In re Parentage of W.L. and G.L. …………..………. 533*
PHYSICIANS AND SURGEONS:
Medical Malpractice Action—Requirements for Proof under Kansas Law.
Under Kansas law, a patient bringing a medical malpractice action against a phy-
sician must prove: (1) the physician owed the patient a duty of care; (2) the phy-
sician's actions in caring for the patient fell below professionally recognized stand-
ards; (3) the patient suffered injury or harm; and (4) the injury or harm was proxi-
mately caused by the physician's deviation from the standard of care.
Miller v. Hutchinson Regional Med. Center ………………..……………. ......57
Medical Negligence Action—Existence of Physician-Patient Relationship—
Question of Fact for Jury. In a medical negligence action, the existence of a phy-
sician-patient relationship typically presents a question of fact for the jury to an-
swer. Miller v. Hutchinson Regional Med. Center ……………………..…...... .57
63 KAN. APP. 2d SUBJECT INDEX XXI
PAGE
— If No Physician-Patient Relationship Established—Grant of Summary
Judgment for Defendant. If a plaintiff is given the benefit of every dispute in the
relevant evidence, the district court may grant summary judgment for the defend-
ant in a medical negligence action so long as no reasonable jury could conclude a
physician-patient relationship had been established.
Miller v. Hutchinson Regional Med. Center…………………………….. ........57
— No Duty of Care if No Legal Physician-Patient Relationship. Without a
legally recognized physician-patient relationship, there is no duty of care for pur-
poses of establishing medical negligence.
Miller v. Hutchinson Regional Med. Center …………….…………..……... ....57
— Under These Facts District Court Erred. On the particular facts presented,
the district court erred in finding no physician-patient relationship existed and
granting summary judgment on that basis.
Miller v. Hutchinson Regional Med. Center …………….…………..……....... 57
POLICE AND SHERIFFS:
Sheriff's Statutory Duty to Keep All Prisoners Safely. The sheriff or the keeper
of the jail in any county of the state shall receive all prisoners committed to the
sheriff's or jailer's custody by the authority of the United States or by the authority
of any city located in such county and shall keep them safely in the same manner
as prisoners of the county until discharged in accordance with law. K.S.A. 19-
1930(a). City of Atchison v. Laurie ……………………………………….… 310
Statutory Requirement of Sheriff to Accept Detainees without Exceptions.
K.S.A. 19-1930(a) requires a county sheriff to accept detainees without excep-
tions. This court cannot rewrite the provision to include an exception where the
sheriff of a county believes a detainee requires medical attention prior to being
booked into the jail. It is solely within the bailiwick of the Legislature to amend
the statute should it see fit to include such an exception.
City of Atchison v. Laurie ………………………………….………..……… 310
PROBATE CODE:
Venue under K.S.A. 59-2203 in Probate Cases. K.S.A. 59-2203 governs venue
in probate cases; it does not confer or otherwise affect district courts' subject-matter
jurisdiction over probate cases. In re Estate of Raney ……………………….... 43
PUBLIC HEALTH:
Immunity under Federal PREP ACT—Failure to Obtain Parental Consent
by Covered Person before COVID Vaccine Covered under PREP Act. Fail-
ure to obtain parental consent by a covered person before administering the Pfizer
COVID-19 vaccine to a minor has a causal relationship with the administration of
the vaccine and is thus covered under the PREP Act.
M.T. v. Walmart Stores, Inc. …………………………...…….……..………. 401
Immunity under Federal PREP Act for Covered Persons from Liability for
Claim under Federal Statute. The Public Readiness and Emergency Prepared-
ness (PREP) Act immunizes "covered persons" from liability for any claim for loss
XXII SUBJECT INDEX 63 KAN. APP. 2d
PAGE
that has a causal relationship with the administration of a "covered countermeas-
ure." 42 U.S.C. § 247d-6d(a), (d) (Supp. 2020).
M.T. v. Walmart Stores, Inc. ……………………………...….……..………. 401
SEARCH AND SEIZURE:
Legality of Public-Safety Stop—Three-Part Test to Assess Legality. A three-
part test is utilized to assess the legality of a public-safety stop: (1) If there are
objective, specific, and articulable facts from which an officer would suspect that
a person is in need of assistance then the officer may stop and investigate; (2) if an
individual requires assistance the officer may take appropriate action to render as-
sistance; and (3) once an officer is assured the individual is no longer in need of
assistance or that the peril has been mitigated, any actions beyond that constitute a
seizure triggering the protections provided by the Fourth Amendment.
State v. McDonald ................................................................................................… 75
No Reasonable Suspicion of Criminal Activity Required before Public-
Safety Stop. A law enforcement officer is not required to possess reasona-
ble suspicion of criminal activity prior to performing a public-safety stop.
State v. McDonald …………………………………………….………… 75
Seizure of Person under Kansas Law—Reasonable Person Not Free to
Leave and Submits to Show of Authority. Kansas law is clear that a sei-
zure of a person occurs if there is the application of physical force or if there
is a show of authority which, in view of all the circumstances surrounding
the incident, would communicate to a reasonable person that he or she is
not free to leave, and the person submits to the show of authority.
State v. Cline ……………………………………………………...…… 167
STATUTES:
Construction of Statute—Intent of Legislature Governs—Appellate
Review. The most fundamental rule of statutory construction is that the in-
tent of the Legislature governs if that intent can be ascertained. An appellate
court must first attempt to ascertain legislative intent through the statutory
language enacted, giving common words their ordinary meanings. Only if
the statute's language or text is unclear or ambiguous does the court use
canons of construction or legislative history to construe the Legislature's
intent. Blue Valley Tele-Communications, Inc. v. Kansas Corporation Comm'n
………………………………………..……………………………...……. 381
Construction of Statutes—Intent of Legislature Governs—Appellate
Review. The most fundamental rule of statutory construction is that the in-
tent of the Legislature governs if that intent can be ascertained. An appellate
court must first seek to ascertain legislative intent through the statutory lan-
guage enacted, giving common words their ordinary meanings.
Wickham v. City of Manhattan ………………………………..……….. 294
Interpretation of Statute—Appellate Review. Statutory interpretation presents a
question of law over which appellate courts have unlimited review.
Blue Valley Tele-Communications, Inc. v. Kansas Corporation Comm'n ….…... 381
63 KAN. APP. 2d SUBJECT INDEX XXIII
PAGE
Statutory Use of "Shall"—Four Factors to Determine if "Shall" Is
Mandatory or Directory. There are four factors to consider in determining
whether the use of "shall" is mandatory or directory: (1) legislative context
and history; (2) the substantive effect on a party's rights versus merely form
or procedural effect; (3) the existence or nonexistence of consequences for
noncompliance; and (4) the subject matter of the statutory provision.
City of Atchison v. Laurie ……………………………………..……….. 310
SUMMARY JUDGMENT:
Court Must Resolve Inferences from Evidence in Favor of Defending
Party. In summary judgment proceedings the district court must resolve all
reasonable inferences drawn from the evidence in favor of the party against
whom summary judgment is sought.
Krigel & Krigel v. Shank & Heinemann …………………..………..….. 344
Disputed Issues of Material Fact May Not Be Decided by Trial Court
Judge. A trial court judge may not decide disputed issues of material fact
on summary judgment, even if the claims sound in equity rather than law.
Corazzin v. Edward D. Jones & Co. ………………………………….. 489*
Negligence Claim for Premises Liability Requires Four Elements. Sum-
mary judgment is rarely appropriate in negligence cases, unless the plaintiff
fails to establish a prima facie case demonstrating the existence of the four
elements of negligence: existence of a duty, breach of that duty, an injury,
and proximate cause. A negligence claim based on premises liability re-
quires the same four elements: duty, breach, causation, and damages. If a
court concludes that a defendant accused of negligence did not have a duty
to act in a certain manner toward the plaintiff, then a court may grant sum-
mary judgment because the existence of duty is a question of law.
Corazzin v. Edward D. Jones & Co. ………………………………..… 489*
Party Cannot Avoid Summary Judgment if Hoping for Later Develop-
ments in Discovery or Trial. A party cannot avoid summary judgment on
the mere hope that something may develop later during discovery or at trial.
Mere speculation is similarly insufficient to avoid summary judgment.
Corazzin v. Edward D. Jones & Co. ………………………..………… 489*
TORTS:
City Not Liable for Negligence of Independent Contractor under These
Facts. Under these facts, the city of Kensington, as the employer of an in-
dependent contractor, is not liable for injuries caused by any negligence of
an independent contractor. Corbett v. City of Kensington ……...…….. 466*
Educational Malpractice Tort Not Recognized in Kansas. Kansas does
not recognize a tort of educational malpractice.
Minjarez-Almeida v. Kansas Bd. of Regents …………………...……… 225
Owner or Operator Open to Public Has Duty to Warn of Dangerous
Condition. The owner of a business is not the insurer of the safety of its
XXIV SUBJECT INDEX 63 KAN. APP. 2d
PAGE
patrons or customers. But an owner or operator of a place open to the public
has a duty to warn of any dangerous condition that the owner or operator
knows about—or should know about—if exercising reasonable care while
tending to the business. Corazzin v. Edward D. Jones & Co. …….…. 489*
Plaintiff's Requirement to Show Duty Existed to Prove Negligence. To
establish the existence of this duty, the plaintiff must show that the owner
or operator had actual knowledge of the condition, or that the condition had
existed for long enough that in the exercise of reasonable care the owner or
operator should have known of the condition. If no duty exists, there can be
no negligence. Corazzin v. Edward D. Jones & Co. ……………….…. 489*
TRIAL:
Denial of Right to Testify Not Structural Error—Appellate Review. De-
nial of the right to testify is not a structural error requiring reversal. Instead,
courts apply a harmless error analysis to determine whether the denial af-
fected the outcome of the trial beyond a reasonable doubt.
State v. Cantu ……………………………………………………..…… 276
Expert Witness Testimony Required—Standard of Care for Independ-
ent Contractor in this Case Outside Common Knowledge of Juror. Ex-
pert witness testimony is necessary to show that an independent contractor
hired to brush blast and paint a city's water tower should have used different
materials or a protective curtain to protect an adjacent landowner from in-
jury. The standard of care for that work is outside the ordinary experience
and common knowledge of a juror. Corbett v. City Kensington …..….. 466*
Jury Trial—Prosecutor has Wide Latitude in Closing Argument. A
prosecutor is afforded wide latitude in summarizing their case to a jury in
closing argument. Discussion of the wedding vows taken between a depend-
ent adult and their caregiver strains the bounds of that latitude to impermis-
sibly play upon the passion and prejudice of the jury. State v. Burris ..... 250
Refusal to Testify by Witness—Unavailable Witness for Purpose of
Confrontation Clause. A witness who refuses to testify because he claims
his or her trial testimony might subject him or her to a charge of perjury is
an unavailable witness for purposes of the Confrontation Clause.
State v. Martinez-Diaz ………………………………………..…….…. 363
Right to Testify in Criminal Case May Be Waived or Forfeited. A de-
fendant may waive or forfeit the right to testify in a criminal case either
intentionally or by conduct. State v. Cantu ………………..………..….. 276
Warning to Disruptive Witness that Testimony May Be Stricken—Fac-
tor for Consideration. Although warning a disruptive witness that their
testimony may be stricken is not mandatory in Kansas, it is a factor that
should be considered as part of the totality of the circumstances.
State v. Cantu ………………….…………………………..……….….. 276
428 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
(530 P.3d 737)
No. 124,971
1
AMANDA DULING, Appellee, v. MID AMERICAN CREDIT UNION,
Appellant.
___
SYLLABUS BY THE COURT
1. ARBITRATION—Requirement of Agreement to Arbitrate Dispute. A party can-
not be required to arbitrate a dispute without an agreement to arbitrate.
2. SAME—Contract Law Determines Whether Agreement to Arbitrate. Whether the
parties agreed to arbitrate is determined by contract law.
3. SAME—Enforceable Agreement to Arbitrate—Burden on Moving Party to Pre-
sent Evidence. A party who moves to compel arbitration has the "initial summary-
judgment-like burden" of presenting enough evidence to show an enforceable
agreement to arbitrate.
4. CONTRACTS—Acceptance of Contract—Requires Outward Expressions of As-
sent. Acceptance of a contract is measured not by the parties' subjective intent, but
rather by their outward expressions of assent.
5. SAME—Interpretation of Ambiguous Language—Interpreted against Drafter.
We interpret ambiguous language in a written document against the drafter.
Appeal from Sedgwick District Court; DEBORAH HERNANDEZ MITCHELL, judge.
Opinion filed December 16, 2022. Affirmed.
Benjamin A. Ramberg and John G. Schultz, of Franke Schultz & Mullen, P.C., of
Kansas City, Missouri, for appellant.
Anthony A. Orlandi, of Branstetter, Stranch & Jennings, PLLC, of Nashville, Ten-
nessee, pro hac vice, and Richard S. Fisk, of Beam-Ward, Kruse, Wilson & Fletes, LLC,
of Overland Park, for appellee.
Before GARDNER, P.J., WARNER and COBLE, JJ.
GARDNER, J.: Mid American Credit Union (MACU) appeals the
denial of its motion to compel arbitration in a putative class action that
1
REPORTER'S NOTE: Previously filed as an unpublished opinion, the Su-
preme Court granted a motion to publish by an order dated April 21, 2023, under
Rule 7.04(e) (2023 Kan. S. Ct. R. at 47). The published opinion was filed with
the clerk of the appellate courts on May 5, 2023.
VOL. 63 COURT OF APPEALS OF KANSAS 429
Duling v. Mid American Credit Union
Amanda Duling, a MACU member, filed against it. MACU argues that
it acted according to the "change [of] term" provision in the parties'
contract by unilaterally adding arbitration and class action waiver pro-
visions to Duling's membership agreement and that Duling accepted
the arbitration provision by continuing to use her account. Finding no
reason to overrule the district court's negative finding against MACU,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Duling opened an account with MACU in 2018. The terms of the
contract that Duling signed to open this account—her membership
agreement—included an "Amendments and Termination" section.
This section outlined MACU's authority to change the terms of the
agreement:
"We may change our bylaws and any term of this agreement. Rules governing changes
in rates are provided separately in the Truth-in-Savings disclosure or in another docu-
ment. For other changes we will give you reasonable notice in writing or by any other
method permitted by law. . . . Reasonable notice depends on the circumstances, and in
some cases such as when we cannot verify your identity or we suspect fraud, it might
be reasonable for us to give you notice after the change or account closure becomes
effective. For instance, if we suspect fraudulent activity with respect to your account, we
might immediately freeze or close your account and then give you notice. . . . If we have
notified you of a change in any term of your account and you continue to have your
account after the effective date of the change, you have agreed to the new term(s)."
Her membership agreement included notice requirements for
amendments:
"Any written notice you give us is effective when we actually receive it, and it must be
given to us according to the specific delivery instructions provided elsewhere, if any.
We must receive it in time to have a reasonable opportunity to act on it. If the notice is
regarding a check or other item, you must give us sufficient information to be able to
identify the check or item, including the precise check or item number, amount, date and
payee. Written notice we give you is effective when it is deposited in the United States
Mail with proper postage and addressed to your mailing address we have on file. Notice
to any of you is notice to all of you."
The membership agreement included no provision mentioning ar-
bitration or class actions.
430 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
Notice of Arbitration Provisions
In a cover letter dated December 7, 2020, MACU notified its
members that it would be adding a new arbitration provision to their
membership agreements:
"Thank you for your continued loyalty to Mid American Credit Union. As a mem-
ber owned financial co-operative we are always mindful that it is our duty to protect
credit union resources. As good stewards it is imperative that we stay up to date with all
regulatory and legal requirements placed upon the credit union.
"Because of this ongoing duty we are adopting a new Arbitration of Claims and
Disputes and Waiver of Class Action provision. This new provision will provide more
clarity as to how legal disputes between the credit union and its members shall be re-
solved. We are making this change as a way to protect our member owners and the
Credit Union through the parties working together to resolve disputes. This new Arbi-
tration and Class Action Waiver provision will become effective on December 28,
2020."
MACU attached to its cover letter a copy of the arbitration and
class action provision, which stated that, with limited exceptions,
MACU or its members could force "any disputes" about a member's
account to be "resolved by binding arbitration." And once effective, the
provision would preclude class actions or the joinder of parties to such
disputes.
Opt-out Language in Cover Letter and Arbitration Provision
MACU's cover letter stated that the arbitration provisions would
become effective on December 28, 2020, that members would have
until January 6, 2021, to opt out, and that continued use by a member
who did not opt out would be treated as consent:
"This new Arbitration and Class Action Waiver provision will become effective on De-
cember 28, 2020. You will have until January 6, 2021 to exercise your right to opt out
of this provision. If you do not opt out of this provision, then your continued use or
maintenance of your credit union account will act as your consent to this new provision."
The cover letter also stated that "[i]nstructions on how to opt
out are included in the new provision provided with this letter."
But those instructions on how to opt out stated a different opt-out
date than the cover letter's January 6, 2021 opt-out date. Under the
heading "Right to Reject this Resolution of Disputes by Arbitra-
tion provision," rather than stating any date certain, the new arbi-
tration provision explained that MACU members could opt out by
sending written notice to MACU's address within 30 days of the
VOL. 63 COURT OF APPEALS OF KANSAS 431
Duling v. Mid American Credit Union
opening of the member's account or the mailing of the notice,
"whichever is sooner":
"You have the right to opt out of this agreement to arbitrate if you tell us
within 30 days of the opening of your account or the mailing of this notice,
whichever is sooner. To opt out, send us written notice that you reject the Reso-
lution of Disputes by Arbitration provision, including your name as listed on
your account and your account number to the following address: Mid American
Credit Union, 8404 West Kellogg Drive, Wichita, KS 67209-1845[.]
"Otherwise, this agreement to arbitrate will apply without limitation, re-
gardless of whether 1) your account is closed; 2) you pay us in full any outstand-
ing debt you owe; or 3) you file for bankruptcy."
Duling's Initiation of a Class Action
In October 2021, Duling filed a putative class action petition
alleging MACU had breached its contract, violated the Kansas
Consumer Protection Act, and unjustly enriched itself. Duling's
petition alleged that MACU had improperly assessed or collected
insufficient funds fees from her and other MACU members.
In addition to filing an answer, MACU moved to stay all legal
proceedings and to compel arbitration or, alternatively, to dismiss.
MACU attached to its motion a copy of the December 7 cover
letter and argued that Duling was contractually required to resolve
her dispute through arbitration, since she had not opted out by Jan-
uary 6, 2021.
Duling responded that she had received no letter or notice
about MACU adding an arbitration provision. Duling also argued
that the cover letter—which MACU had attached as an exhibit to
its response—insufficiently established that MACU had sent no-
tice on or after the date listed because the cover letter was un-
signed, was not on MACU's letterhead, and was unaccompanied
by a copy of the arbitration provision that it alluded to. Duling also
claimed that the cover letter was false or misleading.
MACU replied to Duling's contentions, attaching several ex-
hibits:
• a copy of the cover letter dated December 7, 2020;
• an affidavit from MACU's President/CEO (Brad Herzet),
attesting that MACU had mailed all members the cover
letter and a copy of the arbitration provision on December
7, 2020; and
432 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
• a copy of a mailing invoice, dated December 16, 2020,
listing the units and total price of several "Class Action
Change Items," which included, among other things, an
"all member cover letter" and a "change letter."
At the hearing on MACU's motion to compel arbitration,
MACU argued
• the cover letter was an offer, clearly indicating that
Duling had until January 6, 2021, to opt out of the provi-
sions;
• because Duling continued to use her credit account after
that date, she accepted the terms of the provision—thus
forming a binding arbitration agreement;
• Duling's continued use of her account was an "affirma-
tive act" of acceptance that fell outside the general rule
precluding acceptance of a contract by silence;
• no "mutual consent" was required because Kansas recog-
nizes "unilateral contracts"; and
• the arbitration and class action provisions were not "add-
ing a new term" to the parties' contracts but were simply
"a change to the agreement," citing the "legal actions af-
fecting your account" and "resolving account disputes"
sections of Duling’s membership agreement.
The district court denied MACU's motion to compel arbitra-
tion. Although it noted that public policy favored arbitration, the
district court determined that the parties had not entered into a
valid arbitration agreement. Instead, the court found that the arbi-
tration and class action provisions were "new terms not contem-
plated by the initial agreement." The court explained that
"[a]lthough the initial agreement . . . mention[ed] claims disputed,
the entire waiver of methods of pursuing claim[s] exceeds a mere
change and, essentially, [was] a new provision."
The district court also found that MACU's notice "indicate[d]
the opt-out time had already lapsed." Because the arbitration pro-
vision stated that the time to opt out ended 30 days after Duling
opened her account—the earlier of the two dates—"she may have
seen the opt-out provision as futile as more than 30 days had
passed since she opened her account." Rejecting MACU's claim
VOL. 63 COURT OF APPEALS OF KANSAS 433
Duling v. Mid American Credit Union
that the "whichever is sooner" language was simply printed incor-
rectly, the district court construed the language against MACU as
the drafter. Finding no facts showing mutual consent to arbitrate,
the district court denied MACU's motion.
MACU timely appeals.
We note that Duling also briefs several issues on appeal, as if
she had appealed. She challenges the sufficiency of MACU's no-
tice, alleging that MACU failed to prove that it mailed the notice
or that she received it. She contends that MACU's cover letter was
not a legal document, so it did not convey a legal offer. And she
claims that MACU could not unilaterally add an arbitration clause
to the agreement without breaching the implied duties of good
faith and fair dealing. True, these are matters generally considered
when determining contract formation. But Duling's claims are not
properly raised here because the district court did not make the
factual findings necessary for us to review these arguments and
Duling failed to object to any inadequacy in the district court's
factual findings. State v. Jones, 306 Kan. 948, 959, 398 P.3d 856
(2017) ("When there is no objection to a trial court's findings, this
court presumes that the trial court found all facts necessary to sup-
port its judgment."). Nor did Duling cross-appeal from any ad-
verse ruling entered against her in the district court. Lumry v.
State, 305 Kan. 545, 553-54, 385 P.3d 479 (2016) (noting K.S.A.
60-2103(h)'s requirement that an appellee file a notice of cross-
appeal from adverse rulings to obtain appellate review of those
issues). We thus decline to reach the issues Duling raises.
Did the District Court Err by Denying MACU's Motion to Compel
Arbitration?
MACU challenges the district court's findings that, per the
terms of the parties' contract, it could not add an arbitration clause
to the agreement, and that it failed to prove mutual consent.
MACU contends that it could add the arbitration clause to the
agreement under its change of terms provision. Alternatively,
MACU claims that the cover letter was a valid offer to modify the
terms of the parties' initial agreement "under basic notions of con-
434 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
tract law." It adds that in either instance, the undisputed facts es-
tablish that Duling affirmatively consented to the change by con-
tinuing to use her account after failing to opt out.
Legal Principles Guiding Our Decision
The district court properly exercised its authority to decide
whether an agreement to arbitrate existed, and its decision is a fi-
nal and appealable order. See Anderson v. Dillard's, Inc., 283 Kan.
432, 435, 153 P.3d 550 (2007); NEA-Topeka v. U.S.D. No. 501,
260 Kan. 838, 841, 925 P.2d 835 (1996). "An appellate court re-
views an alleged arbitration agreement like any other contract, ap-
plying a de novo standard of review." Anderson, 283 Kan. at 436.
This court is not bound by the district court's interpretations of a
written instrument. Trear v. Chamberlain, 308 Kan. 932, 936, 425
P.3d 297 (2018).
"The primary rule for interpreting written contracts is to as-
certain the parties' intent. If the terms of the contract are clear, the
intent of the parties is to be determined from the language of the
contract without applying rules of construction." Anderson, 283
Kan. at 436.
"An interpretation of a contractual provision should not be reached merely
by isolating one particular sentence or provision, but by construing and consid-
ering the entire instrument from its four corners. The law favors reasonable in-
terpretations, and results which vitiate the purpose of the terms of the agreement
to an absurdity should be avoided." Johnson County Bank v. Ross, 28 Kan. App.
2d 8, 10-11, 13 P.3d 351 (2000).
The Supreme Court recently clarified that
"an arbitration agreement is 'a specialized kind of forum-selection clause
that posits not only the situs of suit but also the procedure to be used in resolving
the dispute.' An arbitration agreement thus does not alter or abridge substantive
rights; it merely changes how those rights will be processed. And so . . . '"[b]y
agreeing to arbitrate a statutory claim, a party does not forgo the substantive
rights afforded by the statute; it only submits to their resolution in an arbitral . .
. forum."' [Citations omitted.]" Viking River Cruises, Inc. v. Moriana, 596 U.S.
___, 142 S. Ct. 1906, 1919, 213 L. Ed. 2d 179 (2022).
Kansas courts generally favor arbitration agreements. Coulter
v. Anadarko Petroleum Corp., 296 Kan. 336, 370, 292 P.3d 289
(2013). And courts generally seek to uphold arbitration agree-
ments even when the contract provisions are somewhat unclear
VOL. 63 COURT OF APPEALS OF KANSAS 435
Duling v. Mid American Credit Union
and indefinite. City of Lenexa v. C.L. Fairley Const. Co., Inc., 245
Kan. 316, 319, 777 P.2d 851 (1989); Hemphill v. Ford Motor Co.,
41 Kan. App. 2d 726, 735, 206 P.3d 1 (2009). But a party cannot
be required to arbitrate a particular dispute without an agreement
to arbitrate. K.S.A. 5-429(c); AT & T Technologies, Inc. v. Com-
munications Workers, 475 U.S. 643, 648, 106 S. Ct. 1415, 89 L.
Ed. 2d 648 (1986); see Oxford Health Plans LLC v. Sutter, 569
U.S. 564, 569 n.2, 133 S. Ct. 2064, 186 L. Ed. 2d 113 (2013) (ex-
plaining whether an arbitration agreement exists is a "gateway
matter[]"); but see Franklin v. Sunflower Imports, Inc., No.
95,299, 2006 WL 3257461, at *3 (Kan. App. 2006) (noting con-
trary authority suggesting federal policy favoring arbitration
might apply to the determination of whether there is a valid agree-
ment to arbitrate).
Whether the parties agreed to arbitrate is determined by con-
tract law. See First Options of Chicago, Inc. v. Kaplan, 514 U.S.
938, 943-45, 115 S. Ct. 1920, 131 L. Ed. 2d 985 (1995); Heartland
Premier, LTD v. Group B & B, L.L.C., 29 Kan. App. 2d 777, Syl.
¶ 3, 31 P.3d 978 (2001). And under Kansas law, whether a binding
contract has been formed depends on the intention of the parties
and is a question of fact. Reimer v. Waldinger Corp., 265 Kan.
212, 214, 959 P.2d 914 (1998). An appellate court generally re-
views a district court's finding that a contract exists for substantial
competent evidence. Price v. Grimes, 234 Kan. 898, 904, 677 P.2d
969 (1984); Source Direct, Inc. v. Mantell, 19 Kan. App. 2d 399,
407, 870 P.2d 686 (1994). Similarly, whether a particular term of
a written contract has been modified or waived by a later agree-
ment is a question of fact for the trial court. Thoroughbred Assocs.
v. Kansas City Royalty Co., 297 Kan. 1193, 1209, 308 P.3d 1238
(2013).
Still, as the party moving to compel arbitration, MACU had
the "initial summary-judgment-like burden" of presenting enough
evidence to show an enforceable agreement to arbitrate. See Uni-
fied School Dist. #503, Parsons, Kansas v. R.E. Smith Const. Co.,
No. 07-2423-GLR, 2008 WL 2152198, at *2 (D. Kan. 2008). The
district court found that MACU failed to meet this burden, which
is a negative finding. See Mohr v. State Bank of Stanley, 244 Kan.
555, 567, 770 P.2d 466 (1989) ("A finding that the plaintiff did
not sustain the burden of proof is a negative finding."); see also
436 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
Short v. Sunflower Plastic Pipe, Inc., 210 Kan. 68, 74-75, 500 P.2d
39 (1972) (applying negative finding test when reviewing trial
court's order finding that a contract did not exist). Under these cir-
cumstances, this court applies an "even more deferential standard
of review." Woodard v. Hendrix, No. 123,900, 2022 WL 2286922,
at *5 (Kan. App. 2022) (unpublished opinion) (citing Cresto v.
Cresto, 302 Kan. 820, 845, 358 P.3d 831 [2015]). We thus accept
the district court's factual findings unless the party challenging the
finding proves that the district court arbitrarily disregarded undis-
puted evidence or relied on some extrinsic consideration such as
bias, passion, or prejudice to reach its decision. State v. Douglas,
309 Kan. 1000, 1002-03, 441 P.3d 1050 (2019).
A binding contract typically entails an offer of terms, an ac-
ceptance of those terms, and consideration or a thing of value
passing from each party to the other. M West, Inc. v. Oak Park
Mall, 44 Kan. App. 2d 35, 49, 234 P.3d 833 (2010) (noting that
offer, acceptance, and consideration constitute "all the compo-
nents of a valid contract"). The parties must each accept the essen-
tial terms of the contract and outwardly communicate that ac-
ceptance in a way reasonably intended to be understood as such.
Southwest & Assocs. Inc. v. Steven Enterprises, LLC, 32 Kan.
App. 2d 778, 781, 88 P.3d 1246 (2004); see also Morales v. Sun
Constructors, Inc., 541 F.3d 218, 221 (3d Cir. 2008) ("Acceptance
is measured not by the parties’ subjective intent, but rather by their
outward expressions of assent."). "The parties' mutual promises to
arbitrate constitute sufficient consideration under Kansas law."
Clutts v. Dillard's, Inc., 484 F. Supp. 2d 1222, 1224 n.1 (D. Kan.
2007).
Kansas contract law defines the assent necessary to form a
contract as a "meeting of the minds," i.e., "[a]n unconditional and
positive acceptance." USD 446 v. Sandoval, 295 Kan. 278, 282,
286 P.3d 542 (2012). "To constitute a meeting of the minds there
must be a fair understanding between the parties which normally
accompanies mutual consent and the evidence must show with
reasonable definiteness that the minds of the parties met upon the
same matter and agreed upon the terms of the contract." Steele v.
Harrison, 220 Kan. 422, Syl. ¶ 3, 552 P.2d 957 (1976). When a
"purported contract is so vague and indefinite that the intentions
VOL. 63 COURT OF APPEALS OF KANSAS 437
Duling v. Mid American Credit Union
of the parties cannot be ascertained, it is unenforceable." Mohr,
244 Kan. at 573.
In determining whether a contract was formed, we require
only reasonable certainty as to the terms of the agreement. Mohr,
244 Kan. at 573. A contract will not fail for uncertainty or indefi-
niteness if the court can determine the terms by which the parties
intended to be bound and carry out their intentions. Holley v. Allen
Drilling Co., 241 Kan. 707, 710, 740 P.2d 1077 (1987). Moreover,
courts will generally "seek to uphold arbitration agreements even
where the contract provisions are somewhat uncertain and indefi-
nite." Heartland Premier, LTD, 29 Kan. App. 2d at 780.
Analysis
We assume, without deciding, that MACU properly sent no-
tice to Duling of its new arbitration provision.
We first address MACU's argument that its membership
agreement with Duling and others permitted it to unilaterally add
the arbitration clause. We then address its alternative argument
that its December 7 letter was an offer to modify the initial agree-
ment which Duling accepted by her continued use of her account.
Agreement Did Not Contemplate Addition of an Arbitration
Provision
MACU cites Rupe v. Triton Oil & Gas Corp., 806 F. Supp.
1495, 1502 (D. Kan. 1992), stating a "right" to unilaterally change
the terms of a contract is "generally available only to those who
expressly provide for this right in the agreement." MACU con-
tends that its change of terms provision does so. The change of
terms provision in the parties' membership agreement provides
that MACU "may change [its] bylaws and any term of th[e] agree-
ment." That same paragraph states, "[i]f we have notified you of a
change in any term of your account and you continue to have your
account after the effective date of the change, you have agreed to
the new term(s)."
The district court found that other provisions of the member-
ship agreement merely "mention[ed] claims disputed" and did not
contemplate arbitration. We agree. MACU cites several provi-
sions of its agreement with Duling that allegedly show the parties
438 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
contemplated arbitration. See Follman v. World Fin. Network Nat.
Bank, 721 F. Supp. 2d 158, 166 (E.D.N.Y 2010). These provisions
are titled "agreement," "liability," and "resolving account dis-
putes." Yet MACU fails to explain how or where any language in
these sections points to arbitration. Having reviewed these provi-
sions, we cannot reasonably conclude that any of them do so. They
do not elect or discuss dispute resolution methods or forums—
they merely suggest that disputes could arise and would be re-
solved under relevant state and federal laws. Without more, we
cannot find that the contract specifically contemplated arbitration
or the addition of an arbitration agreement under any of its provi-
sions. See TMG Life Ins. Co. v. Ashner, 21 Kan. App. 2d 234, 244,
898 P.2d 1145 (1995) (reviewing court will not create a contract
term that the drafter of the contract could have but failed to in-
clude); see also Bellman v. i3Carbon, LLC, 563 Fed. Appx. 608,
613-15 (10th Cir. 2014) (reviewing several documents for an
agreement to arbitrate but finding no such evidence based in part
on lack of mention of arbitration in signed agreement).
The district court also held that MACU's attempt to add the
new arbitration provision was not a "change" to "any term of the
agreement"—as permitted by the membership agreement. Its de-
cision reflected other court's findings that "[t]here is a clear dis-
tinction between amending the financial terms and rates of a credit
card agreement and the unilateral addition of [a] new provision
not contemplated at the time of the original agreement." Discover
Bank v. Shea, 362 N.J. Super. 200, 211, 827 A.2d 358 (2001). See
Badie v. Bank of America, 67 Cal. App. 4th 779, 79 Cal. Rptr. 2d
273 (1998) (finding that credit issuer cannot impose binding arbi-
tration on its cardholders through "bill stuffer" stating that contin-
ued use of card constitutes acceptance).
MACU shows us no terms of the membership agreement that
the arbitration provision would change. Rather, it offers dictionary
definitions of "change" and suggests that the word broadly in-
cludes the ability to add something new. And it cites Mississippi
federal district court cases determining that the term "change" al-
lowed a bank to unilaterally modify a preexisting agreement by
mailing its members notice of a new provision. See Beneficial Nat.
Bank, U.S.A. v. Payton, 214 F. Supp. 2d 679, 687 n.9 (S.D. Miss.
2001) (noting "Black's Law Dictionary 231 [6th ed. 1990] defines
VOL. 63 COURT OF APPEALS OF KANSAS 439
Duling v. Mid American Credit Union
'change' to include '[a]n alteration; a modification or addition; sub-
stitution of one thing for another.'"); Herrington v. Union Planters
Bank, N.A., 113 F. Supp. 2d 1026, 1030 (S.D. Miss. 2000), aff'd
265 F.3d 1059 (5th Cir. 2001) (same, and also noting Webster's
International Dictionary 1944 [3d ed. 1981] defines "revise" as "to
make a new, amended, improved, or up-to-date version of"). Kan-
sas law may reflect that broad interpretation. See, e.g., Griffin ex
rel. Green v. Suzuki Motor Corp., 280 Kan. 447, 460, 124 P.3d 57
(2005) (finding that the phrase "change in design" encompassed a
"'wholly different design'").
We assume, without deciding, that the change of terms provi-
sion in Duling's agreement with MACU empowered MACU to
add new terms to the parties' agreement, including an arbitration
requirement. Still, the membership agreement does not give
MACU unlimited authority to change it unilaterally. Rather, the
change of terms section first requires MACU to give members
reasonable notice of the changes it intends to make to the terms,
and it then gives members the option to agree to those changes by
continuing to accept MACU's services or to reject the changes by
notifying MACU. The members' ability to accept or reject notified
changes in MACU's terms of service prevents the contract from
being illusory. See Flood v. ClearOne Communications, Inc., 618
F.3d 1110, 1119-1120 (10th Cir. 2010) (An illusory promise is but
a "façade" that imposes no performance obligations on the prom-
isor and affords no consideration to the promisee.); CIT Group v.
E-Z Pay Used Cars, Inc., 29 Kan. App. 2d 676, 678-79, 32 P.3d
1197 (2001) ("a contract which purports to promise a specified
performance but allows one party the discretion to determine
whether to perform is only an illusory contract and unenforcea-
ble"). Thus the notice and opt-out provisions prevent MACU from
unilaterally adding terms to the agreement that were not contem-
plated by the original agreement. Rather, an offer, acceptance, and
consideration are necessary. In other words, mutuality remains
necessary.
Under Kansas law, a party to a contract cannot unilaterally
change the terms of the agreement. Guy Pine, Inc. v. Chrysler Mo-
tors Corp., 201 Kan. 371, 376, 440 P.2d 595 (1968); Thorough-
bred Associates, L.L.C. v. Kansas City Royalty Co., L.L.C., 58
440 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
Kan. App. 2d 306, 317, 469 P.3d 666 (2020). The terms of a writ-
ten contract may, however, be "'varied, modified, waived, an-
nulled, or wholly set aside, by any subsequently executed contract,
whether such subsequently executed contract be in writing or in
parol.'" Coonrod & Walz Const. Co. v. Motel Enterprises, Inc.,
217 Kan. 63, 73, 535 P.2d 971 (1975).
Mutuality is required to amend the terms of a contract. Gill
Mortuary v. Sutoris, Inc., 207 Kan. 557, 562, 485 P.2d 1377
(1971). With some exceptions, the agreement to modify may be
express or implied from the parties' conduct. See Fast v. Kahan,
206 Kan. 682, 685-686, 481 P.2d 958 (1971) (although the con-
tract included provisions for determining amount of partners' an-
nual settlement, partners adopted another means to determine an-
nual settlement, and so modified contract by their conduct);
Wachter Mgmt. Co. v. Dexter & Chaney, Inc., 282 Kan. 365, Syl.
¶¶ 3, 5, 144 P.3d 747 (2006) (applying Uniform Commercial
Code's rule requiring express assent to amendment that materially
changed contract terms by adding "shrinkwrap" license agree-
ment). The new arbitration provision MACU proposed was a ma-
terial change to the membership agreement.
We view MACU's letter as an offer for Duling to modify her
membership agreement. See Wachter Management Co., 282 Kan.
365, Syl. ¶ 3 (treating a shrinkwrap software licensing agreement
not included in the parties' original contract as a request to amend
the contract). The crucial question thus becomes whether Duling
accepted the arbitration agreement by failing to opt out.
Insufficient Showing of Assent
The crux of the district court's ruling and the parties' claims
on appeal centers on the assent issue. "[A]ssent is as much a req-
uisite in effecting a modification as it is in the initial creation of a
contract. . . . In either case . . . there must be a meeting of the minds
with respect to the proposed modification. [Citations omitted.]"
Kahan, 206 Kan. at 684-85.
To establish a meeting of the minds, the terms of the parties'
agreement must be complete and definite enough that each party
reasonably understands the rights and obligations created. Jack
Richards Aircraft Sales, Inc. v. Vaughn, 203 Kan. 967, 971, 457
P.2d 691 (1969). To be considered binding, the contract's terms
VOL. 63 COURT OF APPEALS OF KANSAS 441
Duling v. Mid American Credit Union
must also be definite enough that a court may "determine what
acts are to be performed and when performance is complete."
Lessley v. Hardage, 240 Kan. 72, Syl. ¶ 4, 727 P.2d 440 (1986).
It is generally accepted, as MACU concedes, that the offeror
controls the handling of the offer. The offer determines who may
accept and how. See Restatement (Second) of Contracts § 30, cmt.
a (2022) (explaining "offeror is entitled to insist on a particular
mode of manifestation of assent. The terms of the offer may limit
acceptance to a particular mode; whether it does so is a matter of
interpretation."); Wachter Mgmt. Co., 282 Kan. at 377-78 (observ-
ing that under Kansas law, "[t]he offeror, whether the seller or the
buyer, is the master of the offer," adhering to "the traditional con-
tract principles"). That rule applies here.
The parties also agree that generally, silence will not be con-
strued as acceptance. See Caterpillar Tractor Co. v. Sickler, 149
Kan. 457, 460, 87 P.2d 503 (1939); See also Restatement (Second)
of Contracts § 69, cmt. a (2022) ("Acceptance by silence is excep-
tional" because "[o]rdinarily an offeror does not have power to
cause the silence of the offeree to operate as acceptance. . . . The
mere receipt of an unsolicited offer does not impair the offeree's
freedom of action or inaction or impose on him any duty to
speak."); PCS Nitrogen Fertilizer, L.P. v. Christy Refractories,
L.L.C., 225 F.3d 974, 981 (8th Cir. 2000) (insufficient proof of
course of dealing to integrate an arbitration provision into the con-
tract when the buyer did not expressly assent to the term); Lock-
lear Automotive Group, Inc. v. Hubbard, 252 So.3d 67, 85 (Ala.
2017) (assent to arbitrate typically manifested by signing the con-
tract containing an arbitration provision).
Yet the parties still disagree as to what constitutes acceptance.
According to MACU, Duling accepted its offer to amend the ini-
tial agreement by not electing to exercise her right to opt out and
by then continuing to use her account. Despite recognizing its in-
consistent language in the arbitration provision, particularly the
"whichever is sooner" phrase, MACU argues that when read with
the December 7th cover letter, members should have reasonably
known that their last opt-out date was January 6, 2021.
To the contrary, Duling maintains that the district court cor-
rectly found that her time to opt out ended 30 days after she
opened her account. Because she opened her account years before
442 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
MACU mailed the cover letter and notice of the new arbitration
provision, her 30 day opt-out period expired long before she got
that letter. Duling thus asserts that "[n]ot doing something that is
impossible" does not evidence assent. Duling also argues that the
cover letter does not resolve confusion but rather creates two am-
biguities: (1) it states a different deadline for opting out than the
one contained in the instructions for opting out; and (2) that the
arbitration provision would become effective on a date before the
January 6, 2021 cut-off date for opting out, and thus her use of the
account even one day after the letter was mailed would be viewed
as acceptance.
The parties each cite factually similar cases supporting their
desired result, and we have found many on each side. MACU cites
two cases in which the district court approved of general proce-
dures much like those that MACU followed here. Noting the opt-
out provisions when considering assent, the courts found that the
members' acts of not opting out and continuing to use their ac-
counts showed their intent to be bound. See Gillam v. Branch
Banking and Trust Co. of Va., No. 3:17-cv-722, 2018 WL
3744019, at *3 (E.D. Va. 2018) (unpublished opinion); Valle v.
ATM Nat., LLC, No. 14-cv-7993, 2015 WL 413449, at *1, *3
(S.D.N.Y. 2015) (unpublished opinion).
In contrast, Duling cites two cases which considered the same
"whichever is sooner" language MACU used in its new arbitration
provision instructions. In both cases, the courts refused to compel
arbitration, rejecting the credit unions' attempted unilateral addi-
tion of arbitration clauses and their ineffective attempt to bind
members by the confusing opt-out language. One case is appar-
ently pending on appeal. See Pruett v. WESTConsin Credit Union,
No. 2021CV0000158 (Wis. Cir. Ct. Apr. 11, 2022). The other has
recently been reversed. See Canteen v. Charlotte Metro Credit
Union, No. 21-CVS-6056, n. 36 (Mecklenburg Cnty. N.C. Super.
Ct. Sept. 1, 2021), rev'd 881 S.E. 2d 753, 757 (N.C. App. 2022)
(finding the facts show a binding arbitration agreement).
Assent is decided case-by-case, so caselaw considering whether a
party agreed to arbitration encompasses many factual scenarios. See,
e.g., Rudolph v. Wright Patt Credit Union, 175 N.E.3d 636, 649 (Ohio
Ct. App. 2021) (finding arbitration agreement added to existing con-
VOL. 63 COURT OF APPEALS OF KANSAS 443
Duling v. Mid American Credit Union
tract valid when the contract mentioned dispute resolution and cus-
tomer continued using their account after receiving notice, even though
no right to opt out was provided). But a common factor among cases
finding sufficient assent is a clear and specific offer. And when ac-
ceptance does not require a specific act, the offeror's inclusion of both
a clearly drafted opt-out requirement and a warning that the customer's
continued use will be construed as assent strengthens the support for
assent. See, e.g, AT & T Mobility Services LLC v. Inzerillo, No. 4:17-
cv-00841-HFS, 2018 WL 10160964, at *3 (W.D. Mo. 2018) (finding
assent where consumer employee failed to opt out and continued work-
ing for company).
Failure to opt-out of an arbitration program can, of course,
constitute acceptance. For example, in Rittenhouse v. Glax-
oSmithKline, CV No. 21-1836, 2021 WL 6197361, at *3-4 (E.D.
Pa. 2021), it was undisputed that an employee received several
emails with links, notifying her about adding an arbitration agree-
ment and instructing her how to opt out. When the employee
claimed that she had not assented to the agreement, the court re-
jected her argument in these well-reasoned terms:
"[An] argument that by 'doing nothing' in response to GSK's communica-
tions about the arbitration agreement she did not assent to the arbitration agree-
ment is equally unpersuasive. An employee's failure to opt-out of a voluntary
arbitration program constitutes acceptance, especially where failure to opt-out is
the exact form of acceptance invited by the offer. See, e.g., Stephenson, 2021
WL 3603322, at *6; Bracy, 2020 WL 1953647, at *7; Hoffman v. Compassus,
2019 WL 1791413, at *6 (E.D. Pa. Apr. 23, 2019). This is because '[a]cceptance
is measured not by the parties’ subjective intent, but rather by their outward ex-
pressions of assent.' Morales, 541 F.3d at 221. Thus, if an offeree, 'acts or ex-
presses itself as to justify the other party in inferring assent, and this action or
expression was of such a character that a reasonable person in the position of the
offeree should have known it was calculated to lead the offeror to believe that
the offer had been accepted, a contract will be formed.' (Citations omitted.)" 2021
WL 6197361, at *4.
We agree that acceptance is measured not by the parties' sub-
jective intent, but by their outward expressions of assent. Because
the offer controls the manner of acceptance, an offer with clearer
and more specific terms provides a better basis from which we
may find an outward expression of assent and thus a binding con-
tract. This is true even in cases like this one, which include opt out
and continued use of account terms.
444 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
MACU's offer, however, failed to provide sufficient clarity to
reasonably convey to its members what was required for their as-
sent or for their refusal. We agree with Duling that the date MACU
stated by which members needed to opt out was unclear. The ar-
bitration agreement explained: "You have the right to opt out of
this agreement to arbitrate if you tell us within 30 days of the open-
ing of your account or the mailing of this notice, whichever is
sooner." But to the contrary, the cover letter stated: "You will
have until January 6, 2021, to exercise your right to opt out of this
provision." MACU contends that because Duling first opened her
account with it in 2018, the date that was "sooner" for her was 30
days after the mailing of the December 7th notice, or January 6,
2021. Yet it fails to explain this interpretation, and none is appar-
ent to us. MACU apparently interprets "sooner" to mean closer in
time after receipt of the notice, or in the near future. But the dis-
trict court accepted Duling's interpretation that "whichever is
sooner" meant whichever date was earlier chronologically.
Because the relevant documents do not define "sooner," we
resort to the general principle that ordinary words are presumed to
carry their ordinary, natural, common meanings. See State v.
Sandoval, 308 Kan. 960, 963, 425 P.3d 365 (2018). And we find
that the common meaning of the word "sooner" arguably supports
both MACU's and Duling's conflicting interpretations. See Web-
ster's New World College Dictionary 1386 (5th ed. 2020) (defin-
ing "sooner" to mean "in a short time (after a time specified or
understood)"; and also to mean "ahead of time; early"). Reading
the word in context provides no clarity.
So even if we assume that the cover letter can constitute a le-
gal offer, we still find confusion because we must consider its
terms along with those in the arbitration provision. See Waste
Connections of Kansas, Inc. v. Ritchie Corp., 296 Kan. 943, 963,
298 P.3d 250 (2013) (We interpret contracts by construing and
considering entire instrument from its four corners—not by isolat-
ing one sentence or provision.). True, the cover letter clearly states
the January 6, 2021 opt-out date. But that letter cannot be read in
isolation—we must read it together with the opt-out instructions
in the arbitration provision, which the cover letter referenced, and
those instructions produce uncertainty and confusion. Having re-
viewed those instructions, we find it genuinely uncertain not only
VOL. 63 COURT OF APPEALS OF KANSAS 445
Duling v. Mid American Credit Union
which document controls the opt-out date, but also what the opt-
out-date is supposed to be according to the arbitration instructions.
In short, we cannot tell what the opt-out deadline was. Ambiguity
arises when "the face of the instrument leaves it genuinely uncer-
tain which one of two or more meanings is the proper meaning."
Catholic Diocese of Dodge City v. Raymer, 251 Kan. 689, 693,
840 P.2d 456 (1992); Kincaid v. Dess, 48 Kan. App. 2d 640, 647,
298 P.3d 358 (2013). The opt-out provision is thus ambiguous.
MACU counters that reading the text of the December 7th no-
tice in harmony with the opt-out provision resolves any arguable
ambiguity. It reasons:
• "The December 7th notice stated, '[y]ou will have until
January 6, 2021 to exercise your right to opt out of this
provision.'";
• "30 days after December 7, 2020, is January 6, 2021";
• "Thus when Duling received the December 7th notice,
…[s]he had '30 days from the mailing of the' December
7th notice," which the cover letter clearly stated was Jan-
uary 6, 2021.
But this interpretation ignores language that MACU expressly in-
cluded in the arbitration agreement, italicized below, that mem-
bers could opt out of the arbitration agreement by informing
MACU of that decision "within 30 days of the opening of your
account or the mailing of this notice, whichever is sooner." What
this latter clause was intended to mean, in context, remains a mys-
tery. Yet one reasonable interpretation is that the opening of
Duling's account in 2018 is sooner than any date in 2021.
We interpret ambiguous language in a written document against
the drafter. See Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915,
921, 46 P.3d 1120 (2002). This is particularly so in cases involving
adhesion contracts—ambiguities should be interpreted most strongly
against the party who drafted the agreement. See Badie, 67 Cal. App.
4th at 798; see also Anderson v. Union Pacific R.R. Co., 14 Kan. App.
2d 342, 346, 790 P.2d 438 (1990) (citing Black's Law Dictionary 38
[5th ed. 1979], defining contract of adhesion as a "[s]tandardized con-
tract form offered to consumers of goods and services on essentially
446 COURT OF APPEALS OF KANSAS VOL. 63
Duling v. Mid American Credit Union
'take it or leave it' basis without affording consumer realistic op-
portunity to bargain and under such conditions that consumer can-
not obtain desired product or services except by acquiescing in
form contract"); Kortum-Managhan v. Herbergers NBGL, 2009
MT 79, ¶ 23, 349 Mont. 475, 482, 204 P.3d 693 (2009) (finding
arbitration agreement was a contract of adhesion and considering
whether terms were "'within [weaker parties'] reasonable expecta-
tions, or . . . unduly oppressive unconscionable or against public
policy.' [Citations omitted.]").
Construing the opt-out provisions against MACU, we find
that MACU failed to show Duling assented to its offer to add an
arbitration clause to her membership agreement by her continued
use of her account after receiving notice of the ambiguous opt-out
date. Duling's failure to opt out and her continued use of her ac-
count thus did not justify MACU in inferring her assent. Nor was
Duling's act of such a character that a reasonable person in her
position should have known it was calculated to lead MACU to
believe that the offer had been accepted. When a "purported con-
tract is so vague and indefinite that the intentions of the parties
cannot be ascertained, it is unenforceable." Mohr, 244 Kan. at 573.
Such is the case here. MACU's new arbitration agreement is un-
enforceable because its opt-out provisions are too vague and in-
definite for us to find that Duling assented to the new arbitration
agreement by continuing to use her account.
Affirmed.
VOL. 63 COURT OF APPEALS OF KANSAS 447
State v. Ralston
(529 P.3d 1275)
No. 125,071
STATE OF KANSAS, Appellee, v. DAVID LEE RALSTON JR.,
Appellant.
___
SYLLABUS BY THE COURT
CRIMINAL LAW—Prosecutorial Error—Can Occur in Probation Violation
Hearing. Prosecutorial error can occur in the context of a probation viola-
tion hearing.
Appeal from Franklin District Court; DOUGLAS P. WITTEMAN, judge. Opin-
ion filed May 5, 2023. Affirmed.
Kasper Schirer, of Kansas Appellate Defender Office, for appellant.
Steven J. Obermeier, assistant solicitor general, and Derek Schmidt, attor-
ney general, for appellee.
Before COBLE, P.J., HILL and ATCHESON, JJ.
COBLE, J.: David Lee Ralston Jr. appeals from the revocation
of his probation. Ralston entered into a global plea agreement,
pleading no contest to three charges—one felony and two misde-
meanors—in three separate cases. In exchange for his plea, the
State dismissed other charges and agreed not to oppose probation.
The district court sentenced Ralston to a total of 40 months' im-
prisonment but granted his motion for a downward departure and
imposed a 12-month probation period for all cases to be served
concurrently. Ralston was later charged with new crimes and other
probation violations and the State moved for revocation. Ralston
stipulated to all violations, except one felony charge which had
been dismissed. The district court revoked Ralston's probation and
imposed the original sentence of 40 months' imprisonment, deny-
ing Ralston's request for a modified sentence.
Ralston argues that the State committed prosecutorial error
through improper statements made during the probation revoca-
tion hearing, which affected the district court's decision to impose
the original prison sentence without modification. On our review,
although we find the prosecutorial error rule does apply to this
probation revocation proceeding, we find any error harmless. Because
448 COURT OF APPEALS OF KANSAS VOL. 63
State v. Ralston
Ralston had committed new crimes during his probation period and he
was previously granted probation as a dispositional departure, the dis-
trict court's decision to revoke his probation was well within its discre-
tion under K.S.A. 2018 Supp. 22-3716(c)(8)(A) and (c)(9)(B). The dis-
trict court's ruling is affirmed.
FACTUAL AND PROCEDURAL BACKGROUND
On August 24, 2020, Ralston pleaded no contest to one count
of possession of methamphetamine, a felony, in case No. 19-CR-
115; one misdemeanor count of domestic battery, in case No. 18-
CR-229; and one misdemeanor count of theft, in case No. 17-CR-
36.
Three months later, Ralston appeared for sentencing where
the district court found his criminal history score to be A, and nei-
ther party objected. Ralston filed a motion for a dispositional de-
parture to probation with an underlying sentence in the guideline
range, which the State did not oppose. The district court imposed
a standard 40 months' sentence on the felony charge and granted
a dispositional departure to a probation term of 12 months. On the
two remaining cases 17-CR-36 and 18-CR-229, the district court
imposed a 12-month term of probation to run concurrent with the
felony case.
Five months later, Ralston admitted to violating the terms of
his probation by failing to report on four occasions and by using
THC. The State moved to revoke Ralston's probation in all three
cases. Due to continued delays, the probation violation hearing
was postponed six times. In the meantime, the State filed adden-
dums to the motion to revoke probation. Included in the fourth
addendum to the motion to revoke probation was an affidavit from
Scott Monninger, Ralston's supervising community corrections
officer. The affidavit alleged these violations:
• Numerous failures to report to his supervising officer, and
his last report was on April 7, 2021;
• Ralston tested positive for THC and methamphetamine
multiple times;
• Ralston was unsuccessfully terminated from substance
abuse treatment;
VOL. 63 COURT OF APPEALS OF KANSAS 449
State v. Ralston
• Ralston was charged with driving while suspended twice,
in February and April 2021, and in November 2021 was
charged with driving while a habitual violator; and
• Ralston was charged with aggravated domestic battery in
July 2021.
During the probation revocation hearing, Ralston stipulated to
all violation allegations in the fourth addendum affidavit except
for the aggravated domestic battery charge, which both parties had
agreed to dismiss. The district court accepted the stipulation and
found Ralston in violation of his probation terms.
Ralston asked the court for a modification of his sentence and
at least one day before surrendering so that he could put his affairs
in order. In support, Ralston argued that he had been struggling
with methamphetamine and was forced to drive with a suspended
license because he had to get to work. Ralston stated that he did
what he had to do to provide for himself and that he had been pay-
ing his court costs to date.
The State argued that the original 40 months' prison sentence
should be imposed. The State reminded the district court that Ral-
ston's probation was the result of a downward dispositional depar-
ture, but even given that chance, Ralston failed to comply with the
terms of probation. In support of the State's arguments, the prose-
cutor stated:
"He has failed to report to his probation officer multiple times, hasn't seen his
probation officer prior to these motions being filed since April of last year, so
almost a year ago. When he was seen by his probation officer he tested positive
for meth and marijuana. He had to do a two day jail sanction and showed up to
the jail and was turned away because he blew a .089 on the Intoxilyzer. He's
continued to violate the law by being convicted of two new driving while sus-
pended cases. He was charged with an aggravated domestic battery. It was dis-
missed, but it wasn't dismissed because we didn't think it happened; it's because
the victim was unable to be located and refused to cooperate. Clearly the under-
lying, some of the misdemeanor convictions, Judge, included a domestic battery.
He failed to attend the batterer's intervention program that's created to try to pre-
vent that behavior, and clearly his previous arrest shows that at least there was
an indication that some of that's still going on."
During the hearing, Ralston's counsel objected to the State's
comment that Ralston failed to report since April 2021. He stated
450 COURT OF APPEALS OF KANSAS VOL. 63
State v. Ralston
that Ralston had reported, although infrequently, to his commu-
nity corrections officer.
The district court revoked Ralston's probation and imposed
the underlying prison sentence of 40 months without modifica-
tion. The court noted that Ralston's sentence was originally a pre-
sumptive imprisonment case, and a departure motion was granted.
Although the hearing transcript was silent on this point, the jour-
nal entry for the probation violation hearing also reflected that the
probation was revoked because Ralston committed new crimes.
Ralston timely appeals.
ANALYSIS
Ralston argues on appeal that the prosecutor made improper
statements of fact during the probation revocation hearing by ref-
erencing the aggravated domestic battery charge, noting he failed
to attend batterer's intervention program, and arguing that Ralston
had not reported to his probation officer since April 2021. He con-
tends that these improper statements denied him a fair hearing on
the requested sentencing modification.
Standard of Review
Although Ralston challenges the district court's decision to
impose the underlying sentence after revoking his probation,
which we would normally review under an abuse of discretion
standard, he frames his appeal only as a prosecutorial error claim.
The appellate court uses a two-step process to evaluate claims of
prosecutorial error: error and prejudice. See State v. Blansett, 309
Kan. 401, 412, 435 P.3d 1136 (2019) (citing State v. Sherman, 305
Kan. 88, 109, 378 P.3d 1060 [2016]). First, the appellate court ex-
amines whether the identified prosecutorial acts "fall outside the
wide latitude afforded prosecutors" to pursue the State's case and
try to obtain a conviction in a way that does not offend the defend-
ant's right to a fair trial. 305 Kan. at 109. If the court determines
there was an error, it then moves to consider whether the error
"prejudiced the defendant's due process rights to a fair trial." 305
Kan. at 109.
VOL. 63 COURT OF APPEALS OF KANSAS 451
State v. Ralston
Even if the prosecutor's actions were egregious, reversal of a
criminal conviction or other district court order is not an appropri-
ate sanction if the court determines the actions satisfy the consti-
tutional harmlessness test from Chapman v. California, 386 U.S.
18, 87 S. Ct. 824, 17 L. Ed. 2d 705 (1967). See Blansett, 309 Kan.
at 412; Sherman, 305 Kan. at 109. This test means the prosecuto-
rial error is harmless "'if the State can demonstrate "beyond a rea-
sonable doubt that the error complained of will not or did not af-
fect the outcome of the trial in light of the entire record, i.e., where
there is no reasonable possibility that the error contributed to the
[decision]."'" Blansett, 309 Kan. at 412 (quoting Sherman, 305
Kan. at 109). The statutory harmlessness test found in K.S.A. 2022
Supp. 60-261 also applies to prosecutorial error, but when analyz-
ing both constitutional and non-constitutional error, appellate
courts only need to address the higher standard of constitutional
error. See Sherman, 305 Kan. at 109.
The prosecutorial error analysis is applicable to probation revo-
cation hearings, but here, the errors were harmless.
At the outset, we note that Ralston's argument appears to be a
novel one. To date, our court has not clearly applied the prosecu-
torial error standard in the context of a probation revocation hear-
ing.
The prosecutorial error jurisprudence in Kansas "recognizes a
prosecutor's conduct can implicate a criminal defendant's due pro-
cess rights to a fair trial under the Fourteenth Amendment to the
United States Constitution." State v. Wilson, 309 Kan. 67, 73, 431
P.3d 841 (2018.) Our Supreme Court's test for prosecutorial error,
set forth in Sherman, clearly shows that criminal defendants have
a constitutional right to a fair trial. 305 Kan. at 109.
But what about prosecutorial misstatements made outside the
criminal trial context? A panel of this court applied the prosecuto-
rial error analysis when reviewing a hearing on a motion to correct
illegal sentence—a decision later upheld by our Supreme Court.
State v. Wilson, No. 114,567, 2016 WL 7324427, at *4 (Kan. App.
2016) (unpublished opinion), aff'd and remanded 309 Kan. 67,
431 P.3d 841 (2018). The Court of Appeals panel explained it had
"previously addressed claims of prosecutorial misconduct for
452 COURT OF APPEALS OF KANSAS VOL. 63
State v. Ralston
statements made before a judge at the preliminary hearing and at sen-
tencing." 2016 WL 7324427, at *4. The panel pointed to other opinions
where our court addressed claims of prosecutorial misconduct for
statements made during a preliminary hearing and at sentencing. Wil-
son, 2016 WL 7324427, at *4 (citing State v. Serrano-Garcia, No.
103,651, 2011 WL 4357804, at *3-4 [Kan. App. 2011] [unpublished
opinion] [sentencing]; State v. Roland, No. 101,879, 2010 WL
1078454, at *1-3 [Kan. App. 2010] [unpublished opinion] [sentenc-
ing]; State v. Clelland, No. 93,001, 2005 WL 1805250, at *3-5 [Kan.
App. 2005] [unpublished opinion] [preliminary hearing]); see also
State v. Blevins, 313 Kan. 413, 428, 485 P.3d 1175 (2021) (addressing
a prosecutorial error claim related to the prosecutor's comments made
during the sentencing phase of the trial).
In addition to the prosecutorial error analysis having been ap-
plied outside the trial context, it is clear that defendants have a
constitutional due process right to a fair hearing before their pro-
bation is revoked. See State v. Hurley, 303 Kan. 575, 581, 363
P.3d 1095 (2016) ("[O]nce the privilege of probation has been be-
stowed upon a defendant, he or she acquires a conditional liberty
interest which is subject to substantive and procedural due process
limits on its revocation."). No doubt, the due process protections
applied to a probationer are not as stringent as those that attach in
a criminal trial to a jury or to a judge, given that the burden of
proof on the State is to establish a probation violation by a pre-
ponderance of the evidence rather than guilty beyond a reasonable
doubt as required at trial. See State v. Lloyd, 52 Kan. App. 2d 780,
783, 375 P.3d 1013 (2016) (stating the State's burden on a proba-
tion violation); K.S.A. 2022 Supp. 21-5108(a) ("In all criminal
proceedings, the state has the burden to prove beyond a reasonable
doubt that a defendant is guilty of a crime.").
Despite the differences in levels of proof, if we were to say
that the prosecutorial error rule applies in trials but does not apply
to probation revocation hearings, we would be condoning blatant
misstatements of fact or law by the prosecution, without any im-
pact on the district court's revocation decision. We would then
leave, as the only remedy for such misstatements, a contempt
sanction or an ethical complaint against the prosecutor, person-
ally. But neither of these remedies cure a loss of liberty suffered
VOL. 63 COURT OF APPEALS OF KANSAS 453
State v. Ralston
by the defendant whose probation is revoked. And the "remarka-
ble responsibility" of a prosecutor to see that justice is done simply
cannot end with, or be confined to, a conviction and sentencing.
See State v. Pabst, 268 Kan. 501, 510, 996 P.2d 321 (2000) ("A
prosecutor is a servant of the law and a representative of the peo-
ple of Kansas [and] the prosecutor represents 'a sovereignty whose
obligation to govern impartially is as compelling as its obligation
to govern at all; and whose interest, therefore, in a criminal pros-
ecution is not that it shall win a case, but that justice shall be
done.'") (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.
Ct. 629, 79 L. Ed. 1314 [1935]).
A panel of this court recently stated:
"Prosecutors have a duty to fairly state the law and the facts. See State v.
Tahah, 302 Kan. 783, 791, 358 P.3d 819 (2015). The failure to do so amounts to
error. State v. Watson, 313 Kan. 170, 179, 484 P.3d 877 (2021). Although we
commonly deal with prosecutorial error in closing arguments to juries, the rule
applies to statements a prosecutor addresses directly to the district court. More
generally, prosecutors—as representatives of the State in criminal cases—have
a paramount duty to see that justice is done, rather than simply securing convic-
tions or maximum sentences. State v. Pabst, 268 Kan. 501, Syl. ¶ 6, 996 P.2d
321 (2000) (overarching 'interest' of State, and its legal representative, in crimi-
nal prosecution 'is not that it shall win a case, but that justice shall be done'); see
Tahah, 302 Kan. at 791." State v. Jackson, No. 124,540, 2023 WL 176079, at *2
(Kan. App. 2023) (unpublished opinion), rev. denied 317 Kan. __ (May 5, 2023).
Although Jackson was, like other cases cited above, examin-
ing prosecutorial misconduct in the context of sentencing, we
adopt its explanation of the broad duty of a prosecutor. This duty
must likewise extend to probation revocation proceedings and
candor in such proceedings. Consequently, a prosecutor is not per-
mitted to argue facts outside the record or misstate facts in a pro-
bation revocation hearing, any more than he or she could in a jury
trial or a sentencing hearing. And the record before the district
court, in this case, consisted only of the stipulated violations as
outlined in the affidavits accompanying the motion for probation
revocation.
For these reasons, we find the prosecutorial error rule neces-
sarily applies to Ralston's claims, and we address each of the in-
stances Ralston cites.
First, we address whether the prosecutor's statement regarding
Ralston's failure to report "since April of last year . . . almost a
454 COURT OF APPEALS OF KANSAS VOL. 63
State v. Ralston
year ago" rises to the level of error. The affidavit accompanying
the 4th Addendum to the Motion to Revoke Probation in the rec-
ord does specifically say that Ralston last reported on April 7,
2021—an assertion which, at first glance, supports the prosecu-
tor's statement. However, the same affidavit notes that Ralston
tested positive for various drugs on June 28, 2021, and he signed
an admittance of substance use on September 30, 2021. Appar-
ently, Ralston had some contact with his corrections officer for
him to test and admit to drug use. Ralston's counsel, while disput-
ing the prosecutor's statement, admitted that Ralston reported "in-
frequently" at best, which tracks the dates provided in the affida-
vit. At worst, the affidavit contained contradictory information,
making the prosecutor's blanket statement inaccurate. Under these
circumstances, though, given that Ralston's counsel agreed he re-
ported irregularly, and that Ralston stipulated to the violations, the
prosecutor's error did not deprive Ralston of a fair hearing, given
that all parties essentially agreed he reported irregularly.
Next, when reviewing the prosecutor's comments related to
the aggravated domestic battery charge, we also find prosecutorial
error. The parties agreed the criminal charge was previously dis-
missed, so the State withdrew that ground as a basis for revoca-
tion. Effectively, then, the domestic battery charge was no longer
an issue for the district court's consideration. But by reinjecting
the issue into his argument, and in fact expanding on it by alluding
to the reasoning behind the dismissed charge and the related bat-
terer's intervention program, the prosecutor injected highly preju-
dicial, yet entirely irrelevant, information into the hearing.
Finding prosecutorial error, we must then determine whether
the error influenced the district court's decision to revoke Ralston's
probation and deny his request for modification. We find it did
not. The district court did not mention the domestic battery issue
during the announcement of its decision to immediately revoke
Ralston's probation. Instead, the district court reminded Ralston
he had welcomed an exceptional "break" by receiving a departure
sentence to probation in the first place—echoing an admonition
the court delivered to Ralston at sentencing that any failures to
abide by the terms and conditions of probation would be poorly
received. The district court acknowledged Ralston's "extraordi-
nary" criminal history, including the new charges. And the district
VOL. 63 COURT OF APPEALS OF KANSAS 455
State v. Ralston
court, when considering whether to allow Ralston to report to jail
at a later date, reminded Ralston that when he was required to re-
port to jail on an earlier sanction, he arrived at the jail intoxicated.
On our review of the record, we are convinced beyond a reasona-
ble doubt that the prosecutor's statements related to the dismissed
domestic battery charge did not affect the outcome of Ralston's
probation violation hearing.
Even setting aside the prosecutorial error, the district court's de-
cision to impose the original sentence was within its sound discre-
tion.
Despite the prosecutor's errors, the district court had sufficient
legal grounds to invoke the prison sanction. Although Ralston
does not outright challenge the district court's decision to revoke
his probation, he contends that the court could have imposed a
modified sentence after the probation revocation.
Generally, the appropriate disposition after the finding of a
probation violation is governed by the version of the statute in ex-
istence at the time the offender committed the crime of conviction.
State v. Coleman, 311 Kan. 332, 334-37, 460 P.3d 828 (2020).
Since Ralston committed his original offense in March 2019,
K.S.A. 2018 Supp. 22-3716 governs. In this edition of the statute,
a district court may bypass intermediate sanctions and revoke the
offender's probation if the probation was originally granted as the
result of a dispositional departure under K.S.A. 2018 Supp. 22-
3716(c)(9)(B). Additionally, K.S.A. 2018 Supp. 22-3716(c)(8)(A)
allows revocation without intermediate sanctions if the proba-
tioner commits a new crime while on probation. Once probation
has been revoked, the district court may impose the original sen-
tence or any lesser sentence. K.S.A. 2018 Supp. 22-3716(c)(1)(E).
An appellate court reviews the district court's decision to deny
an offender's request for a lesser sentence upon the revocation of
probation for an abuse of discretion. State v. Reeves, 54 Kan. App.
2d 644, Syl. ¶ 3, 403 P.3d 655 (2017). A district court abuses its
discretion if its action is (1) arbitrary, fanciful, or unreasonable;
(2) based on an error of law; or (3) based on an error of fact. State
v. Levy, 313 Kan. 232, 237, 485 P.3d 605 (2021). The movant
456 COURT OF APPEALS OF KANSAS VOL. 63
State v. Ralston
bears the burden of showing an abuse of discretion. See State v.
Thomas, 307 Kan. 733, 739, 415 P.3d 430 (2018).
During the probation revocation hearing, both Ralston's coun-
sel and the State conceded that his probation resulted from a dis-
positional departure. The district court noted in its ruling that it
had granted the departure motion. And Ralston stipulated to vio-
lating all the probation terms stated in the State's fourth addendum
to the motion to revoke probation except for the aggravated do-
mestic battery charge. That stipulation included that Ralston had
committed other crimes—driving while suspended—while on
probation.
Based on these stipulations, the district court's basis for the
revocation of probation was neither legally nor factually errone-
ous. And, under these circumstances, we cannot say the district
court acted unreasonably when it revoked Ralston's probation and
imposed the underlying sentencing. The district court's decision to
impose the original underlying sentence was within its sound dis-
cretion under K.S.A. 2018 Supp. 22-3716(c)(1)(E), (c)(8)(A), and
(c)(9)(B).
Affirmed.
VOL. 63 COURT OF APPEALS OF KANSAS 457
State v. Degand
(530 P.3d 439)
No. 125,120
STATE OF KANSAS, Appellant, v. CODY MICHAEL DEGAND,
Appellee.
___
SYLLABUS BY THE COURT
1. CRIMINAL LAW—Sentencing—Determination of Criminal History Score—In-
tent of Legislature to Include All Prior Convictions and Adjudications. With some
express exceptions, the Legislature intended for all prior convictions and juvenile
adjudications—including convictions and adjudications occurring before imple-
mentation of the Sentencing Guidelines Act—to be considered and scored for pur-
poses of determining an offender's criminal history score.
2. SAME—Sentencing—Prior Convictions Deemed Unconstitutional Not Used for
Scoring Purposes. Prior convictions of a crime defined by a statute that has since
been determined unconstitutional by an appellate court shall not be used for crim-
inal history scoring purposes.
3. SAME—Sentencing—Burden on State to Prove Criminal History Score.
The State bears the burden to prove an offender's criminal history score by
a preponderance of the evidence.
4. SAME—Sentencing—Inquiry of Prior Conviction—Modified Categorical
Approach. When a sentencing court is making an inquiry on the nature of
an offender's prior conviction, the court may use a modified categorical ap-
proach in its search. Such an approach means that the court can examine the
charging documents of the old case, any plea agreements, transcripts of plea
hearings, findings of fact and conclusions of law from any bench trial, as
well as jury instructions and completed verdicts.
Appeal from Shawnee District Court; NANCY E. PARRISH, judge. Opinion
filed May 5, 2023. Affirmed.
Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general,
for appellant.
Patrick H. Dunn, of Kansas Appellate Defender Office, for appellee.
Before GARDNER, P.J., MALONE and HILL, JJ.
HILL, J.: This is a sentencing appeal by the State. The State
argues that the sentencing court miscalculated Cody Michael De-
gand's criminal history score by not including a felony criminal
threat conviction. This error meant that the court set his score too
458 COURT OF APPEALS OF KANSAS VOL. 63
State v. Degand
low. The State asks us to vacate Degand's sentence and remand
for resentencing. Our review of the record reveals no error, and
we affirm.
Because this is a sentencing appeal, the details of Degand's crimes
are immaterial.
Degand and the State reached a plea agreement concerning
three separate cases from 2020. According to their agreement, De-
gand would plead guilty to one count each of burglary of a vehicle
and theft in one case and he would also plead guilty to one count
each of theft and battery in a second case. In exchange, the State
agreed to dismiss one count in one of those cases and dismiss a
third case entirely. The parties had no specific agreement on sen-
tencing.
A presentence investigation report was prepared and it listed
all of Degand's various convictions. One conviction in 2018 was
for criminal threat and the report rated it as a person felony. This
meant that Degand's criminal history score was B. Degand disa-
greed with that score and asked the court not to count that criminal
threat conviction. If granted, Degand's criminal history score
would be lowered from B to C. The State opposed, arguing De-
gand's criminal threat conviction should be considered a person
felony for criminal history scoring purposes.
At the hearing on the matter, Degand maintained that his crim-
inal threat conviction should not be counted in his criminal history
because there was no showing that the conviction was for inten-
tional criminal threat. The State disagreed and argued the district
court should read the transcript of the plea hearing in that convic-
tion and it would show that Degand had intentionally made the
criminal threat in that older case. Thus, the court could include the
conviction in setting his criminal history.
The district court was unconvinced. It held that the State failed
to carry its burden to establish that Degand's conviction was for
an intentional criminal threat. The court therefore did not include
that conviction in his criminal history. The court then ruled that
Degand had a C criminal history score. The district court then sen-
tenced Degand to various terms of imprisonment and probation
for his crimes.
VOL. 63 COURT OF APPEALS OF KANSAS 459
State v. Degand
Some fundamental points of sentencing law provide a context for
our ruling.
In order to pass sentence on an offender, a court needs to know
two things. First, the severity level of the crime that was commit-
ted. And second, the criminal history of the offender. With these
two components, the court can find the appropriate grid box in our
sentencing grid and then choose the number of months that, in the
eyes of the court, are appropriate for the offense. Because the
criminal history score is an important sentencing component, it
has been the subject of many appeals.
Our Supreme Court has held that, "except as specifically
stated otherwise, the legislature intended for all prior convictions
and juvenile adjudications—including convictions and adjudica-
tions occurring before implementation of the [Sentencing Guide-
lines Act]—to be considered and scored for purposes of determin-
ing an offender's criminal history score." State v. Keel, 302 Kan.
560, 581, 357 P.3d 251 (2015).
There are, however, exceptions. One such exception to includ-
ing all prior convictions is found in K.S.A. 2022 Supp. 21-
6810(d)(9). It states: "Prior convictions of a crime defined by a
statute that has since been determined unconstitutional by an ap-
pellate court shall not be used for criminal history scoring pur-
poses."
The State bears the burden to establish a criminal defendant's
criminal history score by a preponderance of the evidence. K.S.A.
2022 Supp. 21-6814(a); State v. Obregon, 309 Kan. 1267, Syl. ¶
4, 444 P.3d 331 (2019).
This brings us to the focus of this appeal.
A part of the criminal threat statute has been struck down by our
Supreme Court.
Our Supreme Court ruled in State v. Boettger, 310 Kan. 800,
822-23, 450 P.3d 805 (2019), cert. denied 140 S. Ct. 1956 (2020),
that a conviction for criminal threat based solely on recklessness
was unconstitutional. In so finding, our Supreme Court held the
recklessness provision was "unconstitutionally overbroad because
it [could] apply to statements made without the intent to cause fear
of violence," and the language of the statute "provide[d] no basis
460 COURT OF APPEALS OF KANSAS VOL. 63
State v. Degand
for distinguishing circumstances where the speech is constitution-
ally protected from those where the speech does not warrant pro-
tection under the First Amendment." 310 Kan. at 822-23. The rul-
ing struck down the reckless criminal threat crime but left the in-
tentional criminal threat crime untouched.
That ruling applies here. The presentence investigation report
ordered after Degand entered the plea agreement designated his
2018 conviction for criminal threat as a person felony. See K.S.A.
2022 Supp. 21-5415(c)(1). But the report did not reveal whether
his conviction was for a reckless or intentional criminal threat.
This distinction is important here, because if the conviction was
for an intentional criminal threat, Degand's criminal history would
be scored as B. If it was for a reckless criminal threat, then his
score would be a C since the conviction could not legally be in-
cluded in his history.
The district court resolved all of these issues at the sentencing
hearing. First, it took up Degand's objection to the presentence in-
vestigation report's inclusion of the prior criminal threat convic-
tion. At the same time, it considered the State's reply that sup-
ported the report's score. The court used a "modified categorical
approach" in its treatment of this dispute.
Such an approach means that the court can examine the charg-
ing documents of the old case, any plea agreements, transcripts of
plea hearings, findings of fact and conclusions of law from any
bench trial, as well as jury instructions and completed verdicts.
This procedure has been approved by the Supreme Court in State
v. Dickey, 301 Kan. 1018, 1037-38, 350 P.3d 1054 (2015).
In the amended indictment filed in the prosecution of the 2018
criminal threat conviction, Degand was charged with one count
each of criminal threat, aggravated assault on a law enforcement
officer, interference with law enforcement, and disorderly con-
duct. The language pertaining to the criminal threat charge stated:
"On or about the 25th of November, 2017 in the State of Kansas and County of
Shawnee, CODY MICHAEL DEGAND, did, then and there, unlawfully and fe-
loniously, threaten to commit violence against, to-wit: Deputy Robert Miller, and
communicated that threat with the intent to place another in fear, or to cause the
evacuation, lock down or disruption in regular, ongoing activities of any build-
ing, place of assembly or facility of transportation, or communicated that threat
in reckless disregard of the risk of causing such fear, or evacuation, lock down
or disruption in regular, ongoing activities, contrary to the form of the statutes in
VOL. 63 COURT OF APPEALS OF KANSAS 461
State v. Degand
such case made and provided and against the peace and dignity of the State of
Kansas."
This language essentially mirrors the language from the crim-
inal threat statute. See K.S.A. 2022 Supp. 21-5415(a)(1). The
charge does not differentiate between intentional or reckless crim-
inal threat.
In trying to convince the court that Degand's prior conviction
was for intentional criminal threat, the State offered its rendition
of the factual basis of Degand's plea of guilty that he made at the
plea hearing in the 2018 prosecution. Before Degand entered his
guilty plea in that case, the State gave the factual basis for the plea
at the plea hearing as required by K.S.A. 2022 Supp. 22-
3210(a)(4). In doing so, the State said:
"Your Honor, if the State were to proceed to trial, the State would introduce
evidence that on or about the 25th of November, 2017, that deputies were dis-
patched to [Degand's father's residence], which is located in Shawnee County,
for a domestic disturbance.
"Upon arrival, deputies located an individual who was later identified as
Cody Degand and was acting belligerent towards his father while deputies were
on scene. Deputies observed Cody wanting to fight with deputies and called dep-
uties explicit names on the scene.
"Eventually, Cody was transported to his mother's residence, which is lo-
cated [in] Shawnee County, by his father. While at [his mother's residence], Cody
continued to act belligerent. Cody's stepfather . . . did not want Cody at his resi-
dence and was asked to leave, and Cody was asked to leave by Corporal Foster.
"Cody then made gestures and said he would shoot Corporal Foster, as well
as Deputy Miller with the Shawnee County deputy or Sheriff's Office. He addi-
tionally called them explicit names.
"While on scene, Cody grabbed a pair of gardening shears in one hand and
a gardening picket in his other hand and approached Corporal Foster as well as
Deputy Miller. Deputy Miller reported that he was afraid for [the] safety of him-
self and Corporal Foster [when] Cody approached with the tools. Cody asked
Deputy Miller as well as Corporal Foster to shoot him. Cody then threw the tools
on the ground and walked away.
"Corporal Foster advised that Cody was under arrest and he placed his hands
behind his back. When Corporal Foster and Deputy Miller attempted to take
Cody into custody for aggravated assault on a law enforcement officer, he re-
sisted. Eventually, he was able to place handcuffs on Cody's right wrist and Cor-
poral Foster and Deputy Miller used their weight displacement technique to get
Cody to the ground. Once Cody was on the ground, he continued to resist until
the other half of the handcuff was placed on his left wrist.
"All of these events happened in Shawnee County, Kansas.
462 COURT OF APPEALS OF KANSAS VOL. 63
State v. Degand
"THE COURT: Mr. Degand, are you familiar with what Ms. Heinen just
read into the record?
"DEFENDANT DEGAND: Yes, but the only other thing is, my mom's—
that was my mom's property, [my stepfather] had no names on the bills. My mom
was allowing me to be on that property and he told me to get off the property.
My mom allowed me to be on her property.
"THE COURT: The issues that we're talking about—because there's some
more that Ms. Heinen may have read into the record that goes beyond what you're
pleading to. So what I'm going to ask you is whether or not you admit to making
a threat to Deputy Robert Miller on or about the 25th day of November, 2017, in
Shawnee County, Kansas.
"DEFENDANT DEGAND: Yes."
Once again, the offered factual basis does not differentiate be-
tween reckless and intentional criminal threat.
Similarly, the 2018 journal entry of judgment from the case
also failed to differentiate between reckless and intentional crimi-
nal threat, as it simply stated that Degand had been convicted un-
der K.S.A. 2017 Supp. 21-5415(a)(1).
A case decided by another panel of this court offers us guidance.
In State v. Martinez-Guerrero, No. 123,447, 2022 WL 68543 (Kan.
App. 2022) (unpublished opinion), this court dealt with a similar situ-
ation. Martinez-Guerrero pled guilty to one count of aggravated do-
mestic battery, and his presentence investigation report set his criminal
history score as A based on three prior criminal threat convictions—all
person felonies. Martinez-Guerrero objected to his criminal history
score, and the district court agreed that two of his prior criminal threat
convictions should be excluded.
His presentence investigation report, however, did not specify
whether the remaining conviction was for making an intentional
or reckless criminal threat. To resolve the issue, the district court
looked to the plea transcript to see if it could tell which version of
the criminal threat statute applied to the crime. After doing so, the
district court found the remaining criminal threat conviction could
be included in Martinez-Guerrero's criminal history score. 2022
WL 68543, at *1-2.
On appeal, Martinez-Guerrero claimed the district court im-
properly calculated his criminal history score by including his
prior criminal threat conviction. He challenged the district court's
application of the burden of proof, as well as the sufficiency of the
evidence on whether his conviction was for intentional or reckless
VOL. 63 COURT OF APPEALS OF KANSAS 463
State v. Degand
criminal threat. On Martinez-Guerrero's first point, the panel
agreed that the district court erred by framing the State's burden
of proof as a challenge to the sufficiency of the evidence and view-
ing the evidence in the light most favorable to the State. Instead,
the district court should have reviewed the evidence without def-
erence to the State to determine whether Martinez-Guerrero had
been convicted of intentional criminal threat by a preponderance
of the evidence. 2022 WL 68543, at *3.
In resolving the second issue, the panel noted that the district
court relied on the transcript of the plea hearing from Martinez-
Guerrero's 2018 criminal threat conviction when making its deter-
mination. The factual basis provided by the State during the plea
hearing demonstrated that Martinez-Guerrero threatened to shoot
a police officer. The threat occurred during a conflict between the
police officer and Martinez-Guerrero when Martinez-Guerrero
disregarded the police officer's orders. Given all of this, the panel
concluded that the State had failed to show that Martinez-Guerre-
ro's prior criminal threat conviction was for an intentional threat
or recklessly made in the heat of the moment. 2022 WL 68543, at
*4-6.
We come to the same conclusion here. The State's factual
statement alleged Degand "made gestures and said he would shoot
Corporal Foster, as well as Deputy Miller." The State also alleged
Degand called the officers explicit names and approached them
with "a pair of gardening shears in one hand and a gardening
picket in his other hand." But like in Martinez-Guerrero, this is
not enough to establish whether Degand made those comments in
the heat of the moment or that he actually intended to threaten the
officers. See 2022 WL 68543, at *6; State v. Jackson, No.
124,271, 2022 WL 1906940, at *5 (Kan. App. 2022) (unpublished
opinion). Our Supreme Court has also previously rejected similar
assertions even when the defendants made explicit death threats
to their victims. See State v. Lindemuth, 312 Kan. 12, 18-19, 470
P.3d 1279 (2020); State v. Johnson, 310 Kan. 835, 843-44, 450
P.3d 790 (2019); State v. Cardillo, No. 120,606, 2021 WL
1149145, at *6 (Kan. App. 2021) (unpublished opinion).
The State asks us not to consider Martinez-Guerrero in this
case. The State argues that Martinez-Guerrero "is distinguishable
because unlike the defendant there who entered a no contest plea,
464 COURT OF APPEALS OF KANSAS VOL. 63
State v. Degand
here Degand pled guilty." The State also argues the panel erred by
making its own determination of what type of criminal threat Mar-
tinez-Guerrero committed because the district court previously
concluded Martinez-Guerrero committed an intentional criminal
threat.
We reject the State's second argument immediately, as it mis-
characterizes the holding in Martinez-Guerrero. First, the panel
found that the district court used the incorrect standard of review
and resulting burden of proof when rendering its decision because
it viewed the evidence in the light most favorable to the State.
2022 WL 68543, at *3. Second, the panel did not determine which
type of criminal threat Martinez-Guerrero committed. Instead, the
panel reviewed the evidence and prior caselaw before concluding
it could not discern whether Martinez-Guerrero pled no contest to
intentional or reckless criminal threat. 2022 WL 68543, at *4-6.
But considering the State's first argument, it is accurate that
Martinez-Guerrero pled no contest in his case, but Degand pled
guilty here. The State tries to distinguish Degand's guilty plea
from Martinez-Guerrero's no-contest plea by arguing that Degand
admitted all elements of the crime charged by pleading guilty. See
State v. Harned, 281 Kan. 1023, 1045, 135 P.3d 1169 (2006). We
fail to see the legal significance of the difference between the two
pleas. In Martinez-Guerrero, the panel stated:
"Although '"'a defendant does not expressly admit his [or her] guilt'"' under a no-
contest plea, such a plea '"'authorizes the court for purposes of the case to treat
him [or her] as if he [or she] were guilty.' During such pleas a defendant is agree-
ing to refrain from contesting, rather than affirmatively voicing his [or her] guilt
to, the charge or charges."' A district court is required to establish a factual basis
for the crime charged before it can accept a no-contest plea.
"By entering into a no-contest plea, Martinez-Guerrero did not admit to the
underlying facts of the case. Strictly speaking, Martinez-Guerrero pled no contest
to reckless or intentional criminal threat. A factual basis only needed to be estab-
lished for reckless or intentional criminal threat for the district court to accept
Martinez-Guerrero's plea because that was how he was charged. Thus, Martinez-
Guerrero's no-contest plea does not help the State in this instance because his
plea does not establish which version of criminal threat he pled to—intentional
or reckless criminal threat. The State still had to prove Martinez-Guerrero's prior
criminal threat conviction was for an intentional threat. It failed to do so on the
record before us. [Citations omitted.]" 2022 WL 68543, at *6.
VOL. 63 COURT OF APPEALS OF KANSAS 465
State v. Degand
It is true that Degand admitted to the underlying facts of the
case by pleading guilty, but his plea does not establish which ver-
sion of criminal threat he pled to. The language of the amended
indictment, the factual basis given by the State during the plea
hearing, and the journal entry of judgment in the case reinforce
this conclusion. They all show it could be both intentional or reck-
less.
Degand's plea is similarly unhelpful to the State because of
the following exchange during the 2018 plea hearing:
"THE COURT: At this time, I would ask you, how do you plea to Count I
in the Amended Indictment, criminal threat?
"DEFENDANT DEGAND: Guilty."
Put differently, the State never differentiated between which
version of criminal threat Degand pled guilty to. Instead, Degand
pled guilty to what the State alleged—that he was guilty of either
reckless or intentional criminal threat.
In sum, to resolve this sentencing issue before us, we must
apply a statute to the facts. K.S.A. 2022 Supp. 21-6810(d)(9) pro-
hibits the inclusion of prior convictions of laws that have since
been determined unconstitutional. The statute does not have any
exception for convictions obtained as the result of a guilty plea.
Because the record before us fails to establish which version of
criminal threat Degand pled to, the State failed to prove that De-
gand's prior criminal threat conviction was for an intentional
threat. Thus, we affirm the district court's judgment.
Affirmed.
466 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
(530 P.3d 750)
No. 125,258
WILLIAM LORIN CORBETT, Appellant, v. CITY OF KENSINGTON,
KANSAS, and CUNNINGHAM SANDBLASTING & PAINTING CO.,
INC., Appellees.
___
SYLLABUS BY THE COURT
1. TORTS—City Not Liable for Negligence of Independent Contractor under
These Facts. Under these facts, the city of Kensington, as the employer of
an independent contractor, is not liable for injuries caused by any negli-
gence of an independent contractor.
2. TRIAL—Expert Witness Testimony Required—Standard of Care for Inde-
pendent Contractor in this Case Outside Common Knowledge of Juror. Ex-
pert witness testimony is necessary to show that an independent contractor
hired to brush blast and paint a city's water tower should have used different
materials or a protective curtain to protect an adjacent landowner from in-
jury. The standard of care for that work is outside the ordinary experience
and common knowledge of a juror.
Appeal from Smith District Court; PRESTON A. PRATT, judge. Opinion filed
May 12, 2023. Affirmed.
Todd D. Powell, of Glassman Bird Powell, LLP, of Hays, for appellant.
Allen G. Glendenning, of Watkins Calcara, Chtd., of Great Bend, for appel-
lee City of Kensington.
Alan R. Pfaff, of Wallace Saunders, Chtd., of Wichita, for appellee Cun-
ningham Sandblasting & Painting Co., Inc.
Before GARDNER, P.J., MALONE and HILL, JJ.
GARDNER, J.: William Lorin Corbett sued the City of Ken-
sington (City) and Cunningham Sandblasting & Painting Co. Inc.
(Cunningham) for personal injury and property damage, which
Corbett claimed was caused by work the City contracted Cunning-
ham to do on a water tower next to his property. The district court
granted the City's motion for summary judgment because it found
the City was immune and because it found the City was an em-
ployer of an independent contractor. It granted Cunningham's mo-
VOL. 63 COURT OF APPEALS OF KANSAS 467
Corbett v. City of Kensington
tion for summary judgment because Corbett failed to present ex-
pert testimony to establish the standard of care and causation for
its claims. Corbett appeals. Finding no error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The City owns a water tower that sits on property next to prop-
erty owned by Corbett and his wife, Jennifer. In June 2018, the
City contracted to hire Cunningham to brush blast and paint the
City's water tower in accordance with SSPC-SP7. That document
required the use of compressed air nozzle blasting, centrifugal
wheels, or other specified methods to remove "all visible oil,
grease, dirt, dust, mill scale, rust, paint, oxides, corrosion products
and other foreign matter." The contract also required Cunningham
to apply an epoxy primer coat and finish paint to the tower.
On September 7, 2018, Corbett learned that the City planned
to have the water tower painted and sandblasted soon. Corbett told
Cunningham's foreman, Nelson Bones, that Cunningham needed
to cover his garage and porch before it began work on the tower.
By September 8, someone had covered Corbett's garage with
plastic. The next day, Corbett noticed that his garage roof was
covered in sand. Corbett told Bones that his garage and patio
should be covered with heavy plastic or tarps. Someone later re-
placed the covering and applied a heavy black plastic cover to
Corbett's porch and the length of his garage roof. Corbett apolo-
gized to Bones for being difficult and told him this was the type
of covering he had expected. Corbett also suggested that had he
known about the water tower project sooner, he would have cov-
ered his garage with heavy tarps and delayed installation of his
$20,000 metal dome roof.
On September 12, Corbett slipped on sand that had accumu-
lated on a small ornamental bridge in his yard and fell. Corbett
later found paint chips in his yard and surrounding property, which
he believed came from the water tower. After sending the paint
chips and some soil samples for testing, he received lab results
showing that the lead in one of the paint chips and one of the soil
samples exceeded the standard acceptable level for lead contami-
nation in a play area.
468 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
Corbett sued the City and Cunningham for negligently caus-
ing him personal injury and causing lead contamination to his
property. Corbett claimed that he fell and was injured because the
water tower project caused sand and debris to cover the bridge in
his yard, and that the City and Cunningham were negligent for
failing to use reasonable care under the circumstances or to take
reasonable measures to protect him from being injured.
Jennifer testified in her deposition that before Corbett fell, she
had sometimes noticed that the bridge had dust or sand on it from
the water tower project. Corbett's son also stated that before Cor-
bett's fall, the family had been avoiding the bridge because of the
sand. Corbett testified that he typically crossed the bridge to take
his kids to school every day and that he took his children to school
the two days right before he fell. And a day before he fell, he saw
sand on "just about everything" and thus assumed that the bridge
was also covered in sand. Corbett had also walked around his yard
taking pictures and videos of the sand on his property, including
on the bridge.
For his personal injury claim, Corbett designated Brenton
Phillips—owner of Cunningham—as his expert on the standard of
care for brush blasting and painting a water tower. Corbett sum-
marized Phillips' anticipated testimony:
"This witness is expected to testify regarding industry standards for brush blast-
ing and sandblasting on water towers in regard to measures to protect health and
safety of workers and people and property near the project and how to control
the spread of sandblast media, lead paint, and other debris . . . . This witness is
expected to testify consistent with his deposition testimony, which has not yet
been taken. Anticipated testimony includes a discussion of under what circum-
stances a curtain or other protective equipment is used in blasting and painting
projects on water towers."
But when Phillips was deposed, he testified that he would not
recommend a protective curtain for the brush blasting process
used for the City's water tower project, as there was simply "no
reason to use it." He added that Cunningham had never discussed
the possibility of using a curtain when going over the details of
this project with the City, because it would have been unneces-
sary. And had the question arisen, Phillips would have asked why
the City would want a curtain because it would have been a waste
of taxpayers' money, and "for no good reason." Phillips provided
VOL. 63 COURT OF APPEALS OF KANSAS 469
Corbett v. City of Kensington
uncontroverted testimony that the applicable standard of care for
painting a water tower requires no special precautions.
For his lead contamination claim, Corbett designated Steven
Northcott as an expert on the testing of the paint and soil samples.
Corbett summarized his anticipated testimony:
"Mr. Northcott is expected to testify as to the results of testing of soil and paint
chips located on plaintiff's property . . . . Mr. Northcott is expected to testify to
the results of lead testing, including explaining the nature and extent of lead con-
tamination on Plaintiff's property and specifically that one soil sample exceeds
the acceptable level for a play area and one paint chip sample exceeds the stand-
ard for lead in paint."
Northcott's report included lab reports for the samples Corbett had
collected.
The City and Cunningham designated David Folkes, a civil
and geological engineer, as their lead contamination expert.
Folkes found that Northcott's investigation failed to determine the
source of the lead, and the data and evidence collected failed to
show that the 2018 water tower project was the source of the lead
contamination on Corbett's property. Folkes concluded that a
more likely source of the lead was paint from Corbett's house,
other older painted structures in the area, historical auto emissions,
or lead-containing herbicides or pesticides.
Cunningham moved for summary judgment, arguing that Cor-
bett had failed to provide the expert testimony necessary to estab-
lish the standard of care required to complete the water tower pro-
ject, or breach of that standard. Cunningham maintained that ex-
pert testimony was required because the procedure for preparing
and painting the water tower—as provided in its contract with the
City—was beyond the common knowledge and experience of the
typical juror.
The City also moved for summary judgment, arguing it was
not liable for negligence because it had not done the work or di-
rected the work but had hired and relinquished full control to Cun-
ningham, an independent contractor. The City also claimed dis-
cretionary immunity. Both defendants also argued that they could
not be liable for an open and obvious hazard on Corbett's property,
they had no duty to warn, and Corbett failed to prove causation or
damages.
470 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
THE DISTRICT COURT'S DECISION ON CUNNINGHAM'S MOTION
After reviewing the parties' briefs, the district court found that
Cunningham owed a duty of reasonable care to Corbett, but Cor-
bett failed to show that Cunningham had breached that duty. The
district court also held that Corbett failed to provide necessary ex-
pert testimony to establish the standard of care applicable to his
personal injury claim. The district court found that Corbett's evi-
dence failed to show, for example:
• What Cunningham should have done differently;
• Whether Cunningham should have used a different blast
method or media; and
• Whether Cunningham needed to use some sort of protec-
tive cover to contain any debris.
The district court rejected Corbett's claim that no expert was
needed because the standard of care was in the jury's common
knowledge. In reaching that conclusion, it relied on Gaumer v.
Rossville Truck and Tractor Co., 41 Kan. App. 2d 405, 202 P.3d
81 (2009), aff'd 292 Kan. 749, 257 P.3d 292 (2011). There, this
court determined that the "standard of care of the seller of a used
hay baler is outside the ordinary experience and common
knowledge of the jury and beyond the capability of a lay person
to decide." 41 Kan. App. 2d at 408. The district court agreed with
Cunningham that Corbett needed but failed to provide expert tes-
timony to establish the standard of care for the "specialized work"
involved in the water tower project. The district court thus granted
summary judgment on Corbett's negligence claim because Corbett
did not offer expert testimony to establish the standard of care and
in turn could not prove that a breach occurred. Similarly, the dis-
trict court granted summary judgment on Corbett's lead contami-
nation claim because Corbett had no expert testimony showing
that the paint or other samples his expert tested had likely come
from Cunningham's work on the water tower in 2018.
THE DISTRICT COURT'S DECISION ON THE CITY'S MOTION
As for the City, the district court first applied the independent
contractor doctrine, finding that the City was not liable for Cor-
VOL. 63 COURT OF APPEALS OF KANSAS 471
Corbett v. City of Kensington
bett's alleged injuries because of its employer-independent con-
tractor relationship with Cunningham. The court recognized, but
rejected, Corbett's claims that several exceptions applied to this
doctrine.
Finally, the court ruled that the City had discretionary func-
tion immunity under K.S.A. 75-6104(e) of the Kansas Tort Claims
Act because the City's decision to hire Cunningham to work on
the water tower was a policy decision rather than a ministerial
function. The district court also found that maintaining a water
tower is a proprietary function rather than a legal duty.
Corbett timely appeals.
Cunningham cross-appeals, arguing the district court erred in
finding it owed Corbett a duty of reasonable care. The City also
filed a notice of conditional cross-appeal, asking that if we reverse
the district court's dismissal of Corbett's claims against it, it be
allowed to reinstate a cross-claim that it raised against Cunning-
ham.
I. DID THE DISTRICT COURT ERR BY FINDING THE CITY
NOT LIABLE BASED ON THE INDEPENDENT CONTRACTOR
DOCTRINE?
We first address Corbett's argument that certain exceptions to
the independent contractor rule raise a material question of fact
about the City's liability.
Basic Legal Principles
Summary judgment is appropriate when "there is no genuine
issue as to any material fact" and "the movant is entitled to judg-
ment as a matter of law." K.S.A. 2022 Supp. 60-256(c)(2). A party
seeking summary judgment must show there are no disputed ques-
tions of material fact—there is nothing that the fact-finder could
decide that would change the outcome of the claim. See Sham-
berg, Johnson & Bergman, Chtd. v. Oliver, 289 Kan. 891, 900,
220 P.3d 333 (2009).
When deciding a motion for summary judgment, the district
court must view the evidence in the light most favorable to the
nonmoving party, giving that party the benefit of every reasonable
472 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
inference drawn from the evidence. Shamberg, Johnson & Berg-
man, Chtd., 289 Kan. at 900. Because summary judgment tests the
legal viability of a claim, this court applies this same framework
on appeal. 289 Kan. at 900; see also Martin v. Naik, 297 Kan. 241,
246, 300 P.3d 625 (2013). When, as here, the parties agree that the
facts are undisputed, we review a district court's decision to grant
summary judgment de novo. And we review issues of statutory
interpretation, like other questions of law, de novo. Roe v. Phillips
County Hospital, 317 Kan. 1, 5, 522 P.3d 277 (2023).
Negligence is "the lack of ordinary care"—that is, "the failure
of a person to do something that a reasonably careful person would
do, or the act of a person in doing something that a reasonably
careful person would not do, measured by all the circumstances
then existing." Johnston v. Ecord, 196 Kan. 521, 528, 412 P.2d
990 (1966). To succeed on a negligence claim, a plaintiff must
prove that the defendant owed the plaintiff a legal duty and
breached that duty, and that the plaintiff was injured as a result of
the defendant's breach. Sall v. T's, Inc., 281 Kan. 1355, Syl. ¶ 2,
136 P.3d 471 (2006). Generally, "'[w]hether a duty exists is a
question of law,'" but "'[w]hether the duty has been breached is a
question of fact.'" Deal v. Bowman, 286 Kan. 853, 858, 188 P.3d
941 (2008) (quoting Nero v. Kansas State University, 253 Kan.
567, Syl. ¶ 1, 861 P.2d 768 [1993]). Summary judgment is seldom
considered proper for claims of negligence. Esquivel v. Watters,
286 Kan. 292, Syl. ¶ 3, 183 P.3d 847 (2008).
Kansas law does not impose a generalized duty on everyone
to prevent all possible harm to others. See Gragg v. Wichita State
University, 261 Kan. 1037, 1045, 934 P.2d 121 (1997). It, how-
ever, imposes a duty of care to safeguard against reasonably fore-
seeable harms based on the circumstances of a particular case and
the parties' relationships. See 261 Kan. at 1045.
Analysis
The parties agree that generally, the employer of an independ-
ent contractor is not liable for injuries caused by the negligence of
an independent contractor. See Restatement (Second) of Torts §
409 (1964); Dillard v. Strecker, 255 Kan. 704, 716, 877 P.2d 371
(1994). "An independent contractor is defined as one who, in ex-
ercising an independent employment, contracts to do certain work
VOL. 63 COURT OF APPEALS OF KANSAS 473
Corbett v. City of Kensington
according to his own methods, without being subject to the control
of his employer, except as to the results or product of his work."
Falls v. Scott, 249 Kan. 54, 64, 815 P.2d 1104 (1991). The district
court found that Cunningham acted as an independent contractor
and that the City relinquished control of the work to Cunningham.
See 249 Kan. at 64. Corbett does not challenge those conclusions,
conceding that Cunningham was an independent contractor of the
City and recognizing that if the general rule applies, the City is not
liable for injuries caused by Cunningham's negligence.
Corbett argues solely that the district court erred by not apply-
ing these exceptions to the independent contractor doctrine:
• the City knew that the water tower work was likely to cre-
ate a nuisance or trespass;
• the work created a peculiar or unreasonable risk of phys-
ical harm to others absent special precautions;
• the work involved an inherently dangerous activity; and
• the City failed to exercise reasonable care to hire a com-
petent contractor.
We examine these individually.
Nuisance Exception
Restatement (Second) of Torts § 427B (1965) provides that an
employer of an independent contractor may be held liable for
harm caused to another when the employer knows or has reason
to know that the work is "likely to involve a trespass upon the land
of another or the creation of a public or a private nuisance," and
the harm results from that trespass or nuisance.
Although Corbett relies on this exception, he fails to show that
our appellate courts have ever adopted this rule. Cf. McDonnell v.
The Music Stand, Inc., 20 Kan. App. 2d 287, 293, 886 P.2d 895
(1994) (adopting similar exception provided in Restatement [Sec-
ond] of Torts § 411 [1965]); see State v. Meggerson, 312 Kan.
238, 246, 474 P.3d 761 (2020) (point raised incidentally in brief
but not argued is considered waived or abandoned; point consid-
ered improperly briefed based on failure to cite pertinent authority
in support). But cf. Davis v. City of Kansas City, 204 Kan. 524,
474 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
532-33, 464 P.2d 154 (1970) (applying rule that "where the con-
duct of the contractor gives rise to a nuisance and the employer
retains the right to control the manner and method of the contrac-
tor's performance of the contract, the employer is liable for the
nuisance"). We assume, without finding, that the Kansas Supreme
Court would apply this exception to appropriate facts.
The City also notes that Corbett did not plead nuisance when
he filed his initial claims; he claimed only negligence and lead
contamination. But the City cites no authority showing that Cor-
bett had to do so to rely on § 427B in its summary judgment mo-
tion. We know of no such requirement.
Still, in response to the City's motion for summary judgment,
Corbett had to give the district court "something of evidentiary
value to establish a disputed material fact." Kastner v. Blue Cross
and Blue Shield of Kansas, Inc., 21 Kan. App. 2d 16, Syl. ¶ 6, 894
P.2d 909 (1995). To fall within the nuisance exception to the in-
dependent contractor rule, Corbett had to provide probative evi-
dence that the City knew or should have known that the water
tower project would likely cause a private or public nuisance on
his property. Restatement (Second) of Torts § 427B.
The district court found the nuisance exception inapplicable
because the City lacked "expertise or knowledge in how the tower
work would be carried out, or what, if any, issues [it] might cause
for neighboring landowners, or how significant those issues might
be." The City argues that the nuisance exception applies only if
the City had "actual knowledge" of a likelihood of a nuisance or
trespass. Alternatively, the City also argues that it had no reason
to know that a nuisance would result because, as the district court
found, it lacked any training or expertise in this area.
Corbett claims that the City knew the proximity of his prop-
erty to the water tower and knew that the work would cause sand
and other debris to fall onto his property, as this evidence shows:
• the bids that the City received from Cunningham stated
the following scope of work: "SSPC-SP 6—The removal
of all visible oil, grease, dirt, dust, mill scale, rust, paint,
oxides, corrosion products and other foreign matter by
compressed air nozzle blasting, centrifugal wheels or
other specified method";
VOL. 63 COURT OF APPEALS OF KANSAS 475
Corbett v. City of Kensington
• Corbett's property is adjacent to the water tower;
• City maintenance worker, Troy Conaway, helped put a
protective covering on Corbett's property; and
• Corbett spoke to a Cunningham representative about hav-
ing a protective curtain or sock put up to contain any de-
bris.
Contrary to the City's claim, the City did not need to direct
Cunningham to cause a nuisance or have actual knowledge that a
nuisance would occur; its knowledge that a nuisance was likely to
occur is enough:
"This exception applies to work which involves a trespass on the land of
another, or either a public or a private nuisance. It applies in particular where the
contractor is directed or authorized by the employer to commit such a trespass,
or to create such a nuisance, and where the trespass or nuisance is a necessary
result of doing the work, as where the construction of a dam will necessarily
flood other land. It is not, however, necessary to the application of the rule that
the trespass or nuisance be directed or authorized, or that it shall necessarily fol-
low from the work. It is sufficient that the employer has reason to recognize that,
in the ordinary course of doing the work in the usual or prescribed manner, the
trespass or nuisance is likely to result." Restatement (Second) of Torts § 427B,
comment b.
Corbett's evidence, viewed in the light most favorable to him, and
together with reasonable inferences, suggests that the City knew
or should have known that the work it contracted for Cunningham
to do would likely cause dust or debris to fall on Corbett's prop-
erty.
It does not necessarily follow, however, that the City knew
that the work was likely to create a problem rising to the level of
a nuisance. And that is what Corbett must show to fall within this
exception.
Generally, whether a nuisance exists is a question of fact.
"'Nuisance means annoyance, and any use of property by one which gives
offense to or endangers life or health, violates the laws of decency, unreasonably
pollutes the air with foul, noxious, offensive odors or smoke, or obstructs the
reasonable and comfortable use and enjoyment of the property of another, may
be said to be a nuisance. What may or may not constitute a nuisance in a partic-
ular case depends upon many things, such as the type of neighborhood, the nature
of the thing or wrong complained of, its proximity to those alleging injury or
damage, its frequency or continuity, and the nature and extent of the injury, dam-
age or annoyance resulting. Each case must, of necessity, depend upon particular
476 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
facts and circumstances.' [Citation omitted.]" Cherry v. Board of County Com-
missioners, 202 Kan. 121, 123-24, 446 P.2d 734 (1968).
Factors we consider in determining whether an offense rises
to the level of a nuisance are its frequency, continuity, and dura-
tion. Sly v. Board of Education, 213 Kan. 415, 419, 516 P.2d 895
(1973).
"A single offense, or several isolated offenses, may not constitute a nuisance, and
may not, for any reason, be enjoined or enjoinable; but when the offense is re-
peated continuously and persistently, without any immediate prospect of a final
termination, the aggregate of such offenses will finally become and will consti-
tute a public nuisance, which may be enjoined by the public unless some other
adequate remedy is given for its complete suppression and extirpation." State ex
rel. Vance v. Crawford, 28 Kan. 726, 736 (1882).
The interference with property must also be both substantial and
unreasonable. Sandifer Motors, Inc. v. City of Roeland Park, 6
Kan. App. 2d 308, 312, 628 P.2d 239 (1981).
The City argues that any sand or debris the water tower project
caused to fall on Corbett's property was merely an inconvenience
and not a nuisance, citing Hofstetter v. Myers, Inc., 170 Kan. 564,
228 P.2d 522 (1951). There, our Supreme Court found an occa-
sional but repeated operation of an asphalt plant over several years
did not constitute a nuisance, in part because the dust deposited on
the plaintiffs' property was only occasional—when the wind was
in the right direction. The Hofstetter court distinguished between
an "inconvenience" and a nuisance:
"Now it may be that plaintiffs suffered actual injury and damage to their persons
and property as a result of the plant's operation, but the fact remains the
lower court did not so find. It merely found they were inconvenienced. While it
is perhaps true that 'inconvenience,' depending upon its nature, extent and result,
might, in some instances, be such as to constitute a nuisance in the eyes of the
law, yet under all of the facts and circumstances of the case before us we cannot
give the court's findings such interpretation." 170 Kan. at 569.
We assume that the sand or debris on Corbett's property was caused by
brush blasting the water tower. But the sand or debris was on his prop-
erty only a few days, had an immediate prospect of a final termination,
and was washed away during the next rainstorm. The evidence, in-
cluding the photographs of Corbett's property, does not show such
a volume of sand as to arguably constitute a nuisance.
VOL. 63 COURT OF APPEALS OF KANSAS 477
Corbett v. City of Kensington
Nor does the evidence show the City's knowledge that the
work was likely to create a problem rising to the level of a nui-
sance. Corbett argues that the "Cleanup/Disposal" clause in Cun-
ningham's contract shows the City's knowledge of the likelihood
of creating a nuisance. But other terms in the contract suggest that
the water tower work would be completed in as short a timeframe
as possible, promising the work would be "pursued aggressively"
and defining "excessive" delays as "several days or weeks." The
City may have taken Cunningham's promise to cleanup and dis-
pose of any leftover material as an assurance that a nuisance would
not be created. Nothing in the contract tends to show the City's
knowledge that the project could create sand or debris on neigh-
boring property in such an amount or for the duration necessary to
constitute a nuisance.
So even if we assume that § 427B applies in our jurisdiction
and we agree that the City knew that the water tower project would
create some sand or debris on neighboring property, Corbett's ev-
idence fails to raise a material question of fact that the City should
have known that the sand would be significant enough to cause a
nuisance, damaging Corbett or his property. Thus the nuisance ex-
ception under § 427B does not apply.
Peculiar Risk Exception
Corbett also invokes the "so-called peculiar risk doctrine" set
forth in Restatement (Second) of Torts § 416 (1965). See Balagna
v. Shawnee County, 233 Kan. 1068, 1082-83, 668 P.2d 157
(1983), superseded by statute on other grounds. It provides:
"One who employs an independent contractor to do work which the em-
ployer should recognize as likely to create during its progress a peculiar risk of
physical harm to others unless special precautions are taken, is subject to liability
for physical harm caused to them by the failure of the contractor to exercise rea-
sonable care to take such precautions, even though the employer has provided
for such precautions in the contract or otherwise." Restatement (Second) of Torts
§ 416.
But expert Phillips testified that the applicable standard of care in
the industry for a water tower project requires no special precau-
tions. That testimony was uncontradicted.
And Corbett offers no evidence to reasonably support a find-
ing that the water tower project was likely to create an unsafe
478 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
build-up of sand or debris. He presented no evidence that would
show, for example, that brush blasting a water tower routinely
leaves excessive sand or debris that is unsafe for neighboring
property owners. Nor does Corbett show the City should have
known the work was likely to create a peculiar risk of physical
harm to others.
"It is that knowledge of risk that creates the exception to the general rule of nonli-
ability of one who hires an independent contractor. Not being involved in the
execution of the work or supervising the activities, only owners who have
knowledge of the peculiar risk or reasonably should have known of the risks are
liable under § 413." Dumler v. Conway, 49 Kan. App. 2d 567, 573, 312 P.3d 385
(2013).
Dumler found this exception inapplicable. There, the plaintiff
was injured when her car slid on mud on a road next to a field
where ensilage was being harvested. She sued the farmer and the
harvester, an independent contractor. Her suit against the farmer
alleged he should have recognized his harvester was likely to cre-
ate a peculiar risk of physical harm to others by leaving mud and
debris on the roadway next to his field being harvested. Because
the farmer did not require the harvester to take precautions, the
plaintiff argued he was liable for the physical harm the harvester
caused. But the district court granted summary judgment to both
the farmer and the harvester. As for the farmer, the court held the
"peculiar risk doctrine" did not apply so he was not liable for the
negligent acts of his independent contractor. It rejected plaintiff's
argument that the existence of mud on a roadway was likely to
create a peculiar risk of physical harm, finding that transportation
of farming equipment, which could leave mud and debris in a
road, is an everyday activity that can be done safely and does not
inherently pose a physical risk of harm to others. 49 Kan. App. 2d
at 574.
Similarly, brush blasting and painting a water tower can be
done safely and does not inherently pose a physical risk of harm
to the neighbors of the water tower. Corbett fails to raise a genuine
question of material fact that the City should have recognized that
Cunningham's work was likely to create a peculiar risk of physical
harm to others unless it took special precautions. This exception
does not apply.
VOL. 63 COURT OF APPEALS OF KANSAS 479
Corbett v. City of Kensington
Inherently Dangerous Activity Exception
Corbett next relies on the inherently dangerous activity doc-
trine. This exception is much like the peculiar risk exception ad-
dressed above.
"'An exception to the general rule is the inherently dangerous activity doc-
trine, which provides that one who employs an independent contractor to do work
involving a special danger to others which the employer knows or has reason to
know to be inherent in or normal to the work, or which he contemplates or has
reason to contemplate when making the contract, is subject to liability for phys-
ical harm caused to such others by the contractor's failure to take reasonable pre-
cautions against such dangers.'" Dillard v. Strecker, 18 Kan. App. 2d 899, 906,
861 P.2d 1372 (1993) (quoting Balagna, 233 Kan. 1068, Syl. ¶ 4), aff'd 255 Kan.
704, 877 P.3d 371 (1994).
See Restatement (Second) of Torts § 427.
"'In determining whether an inherently dangerous activity ex-
ists, each case must rest upon its own facts.'" Wilson v. Daytec
Constr. Co., 22 Kan. App. 2d 401, 404, 916 P.2d 72 (1996) (quot-
ing McCubbin v. Walker, 256 Kan. 276, 290, 886 P.2d 790
[1994]). Still, comparing our facts to others is helpful.
"The reporter's note under § 427 in the Appendix to the original volume lists
a number of situations in which the doctrine has been held applicable. Among
those listed are included the following: Crop dusting and spraying insecticides;
work involving excavation in or near the highway, where the excavation was left
unguarded; work done above the highway or sidewalk, where something fell;
work contemplating obstruction of the highway; installing safety doors on an
elevator while it is in use; installing defective joists on a steel building frame;
turning gas into mains before they were cemented; use of an acetylene torch near
inflammable materials in repairing a building; repairing a skylight, with no ar-
rangement for removal of loose iron, which was blown off; red hot rivets dropped
into work being done below." Balagna, 233 Kan. at 1080.
Whether an activity is inherently dangerous is a question of
law when the facts are undisputed. Falls, 249 Kan. at 61. Gener-
ally, the proper test is whether danger "inheres" in performance of
the work; important factors to consider are the contemplated con-
ditions under which the work is to be done and the known circum-
stances attending it. Phillips Pipe Line Co. v. Kansas Cold Stor-
age, Inc., 192 Kan. 480, 488, 389 P.2d 766 (1964); Reilly v. High-
man, 185 Kan. 537, 541, 345 P.2d 652 (1959). Stated another way,
480 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
intrinsic danger in an undertaking is one which inheres in the per-
formance of the contract and results directly from the work to be
done—not from the collateral negligence of the contractor. Bala-
gna, 233 Kan. at 1081 (finding trenching operations not inherently
dangerous, thus the employer was not vicariously liable for inde-
pendent contractor's failure to shore up the trenching operations).
In McCubbin, 256 Kan. at 296-97, the court determined that
tree trimming is generally not an inherently dangerous activity un-
der the Restatement (Second) of Torts § 427 (1964). The
court reasoned it would not take an expert witness to determine
that if branches are cut from a tree, they will fall to the ground and
increase the risk to a person below. But an undertaking cannot be
found inherently dangerous just because it might produce injury.
256 Kan. at 296-97.
Corbett has the burden to show evidence that reasonably sup-
ports a factual finding that the normal work of brush blasting and
painting of a water tower is likely to create a special danger to one
in his position. Corbett alleges two inherent dangers: the creation
of sand and other debris; and the danger associated with the water
tower's height. As for sand and debris, the City correctly states
that several types of work create sand and debris—its danger is
not special. And Corbett shows no facts suggesting that the City
knew that Cuningham's activity was likely to create enough sand
or debris to create a special danger to nearby landowners.
As for the special danger associated with the tower's height,
that danger is the risk that a worker will fall off the tower. Corbett
was not injured by that special danger. This exception could per-
haps subject the City to liability for physical harm caused to others
by the contractor's failure to take reasonable precautions against
the special danger of falling that the City knows or has reason to
know are inherent in or normal to the work. But Corbett's harm
was not caused by Cunningham's failure to take reasonable pre-
cautions against that risk, as this exception requires. See Dillard,
18 Kan. App. 2d at 906 (employer who should know of special
danger inherent in work is subject to liability "for physical harm
caused to such others by the contractor's failure to take reasonable
precautions against such dangers"). Yet Phillips provided uncon-
troverted testimony that the applicable standard of care for this
water tower project requires no special precautions. So even if the
VOL. 63 COURT OF APPEALS OF KANSAS 481
Corbett v. City of Kensington
City knew of some special danger that injured Corbett, no facts
show that the contractor failed to take reasonable precautions
against such dangers.
We find that the brush blasting and painting of a water tower
is an activity that can be accomplished safely and does not inher-
ently pose a physical risk of harm to persons not working on that
project. The inherently dangerous activity exception does not help
Corbett.
Negligent Hiring of Independent Contractor Exception
The last exception Corbett relies on states that an employer
may be directly liable for its negligent hiring of an independent
contractor. See Dye v. WMC, Inc., 38 Kan. App. 2d 655, 663-64,
172 P.3d 49 (2007). Restatement (Second) of Torts § 411 states:
"An employer is subject to liability for physical harm to third persons
caused by his failure to exercise reasonable care to employ a competent and care-
ful contractor
"(a) to do work which will involve a risk of physical harm unless it is skill-
fully and carefully done, or
"(b) to perform any duty which the employer owes to third persons."
Kansas has adopted this exception. See McDonnell, 20 Kan. App.
2d at 293.
Corbett suggests that the City should have required Cunning-
ham to provide references and a list of its employees before hiring
them. He also argues that the City had to include certain contract
provisions to show its due diligence in hiring a reputable company
to complete the water tower work. But Corbett fails to support
these points with facts of record or legal authority. See Megger-
son, 312 Kan. at 246 (point raised incidentally in a brief but not
argued is considered waived or abandoned; point is improperly
briefed based on failure to cite pertinent authority in support).
We consider the extent of the employer's knowledge and ex-
perience in the field of work to be done. The record does show
that when the City hired Cunningham, it knew Cunningham had
decades of experience and expertise in maintaining water towers.
In fact, Cunningham had inspected and maintained the City's wa-
ter tower for the last several decades. No evidence shows that
Cunningham had provided references or a list of its employees on
482 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
prior occasions. No facts suggest that any contract provisions re-
quired Cunningham to take special precautions on prior occasions.
And no evidence shows that Cunningham had ever taken special
precautions, such as using a curtain, or that the City had any evi-
dence that Cunningham was not a careful and competent contrac-
tor, or that the City knew that other neighbors had been injured by
sand or debris falling from a previous water tower project of Cun-
ningham's.
Corbett's petition states a claim of physical injury. But the
City convincingly argues that Corbett's evidence does not tend to
show that the City acted unreasonably when hiring Cunningham
or that Cunningham acted incompetently or dangerously or that
the City's failure to employ a competent and careful contractor
caused Corbett's injury. Corbett thus fails to prove the elements
necessary to meet this exception.
No argued exception to the general rule applies. Thus, the
City, as the employer
of an independent contractor, is not liable for injuries caused by
any negligence of an independent contractor. Summary judgment
in its favor is warranted.
We find it unnecessary to reach Corbett's claim that the court
erred by finding that his claims against the City were also barred
by the City's discretionary immunity.
II. DID THE DISTRICT COURT ERR BY GRANTING CUNNINGHAM
SUMMARY JUDGMENT BASED ON CORBETT'S FAILURE TO
PROVIDE EXPERT TESTIMONY?
We next address Corbett's claim that the district court erred
by granting Cunningham summary judgment on his personal in-
jury and property damage (paint contamination) claims. We ad-
dress these claims separately.
Corbett's Personal Injury Claim
Corbett challenges the district court's ruling that his negli-
gence claim against Cunningham failed because he did not pro-
vide expert testimony to establish the applicable standard of care
or its breach. Corbett distinguishes between other claims alleging
"malpractice" and his claim involving "ordinary negligence":
VOL. 63 COURT OF APPEALS OF KANSAS 483
Corbett v. City of Kensington
"While specialized knowledge may be required to evaluate alle-
gations of sandblasting malpractice, this is a case for ordinary neg-
ligence and for which Cunningham operated under an ordinary,
general standard of care of reasonableness under the circum-
stances."
But a party's characterization of the claim does not dictate the
applicable test for determining whether expert testimony is re-
quired. Rather, the question turns on whether the subject matter
requires specialized knowledge.
"Whether expert testimony is necessary to establish the applicable standard of
care does not depend upon the classification of a claim as ordinary negligence
rather than medical malpractice or another cause of action. Tudor v. Wheatland
Nursing, 42 Kan. App. 2d 624, 628, 214 P.3d 1217 (2009), rev. denied 290 Kan.
1105 (2010). Rather, 'the well-established test for determining whether ex-
pert testimony is required is whether the subject matter is too complex to fall
within the common knowledge of the jury and is "beyond the capability of a lay
person to decide."' Williamson v. Amrani, 283 Kan. 227, 245, 152 P.3d 60 (2007),
superseded by statute on other grounds as stated in Kelly v. VinZant, 287 Kan.
509, 197 P.3d 803 (2008)." Estate of Doty v. Dorsch, No. 119,216, 2019 WL
5090387, at *15 (Kan. App. 2019) (unpublished opinion).
Using this standard, Cunningham contends that expert testi-
mony is necessary because a person would need specialized, not
common, knowledge to determine whether it followed the proper
procedure for brush blasting and painting a 50,000 gallon elevated
water tower. Ordinary persons may have common knowledge
about painting houses or rooms, but they lack a basis of
knowledge about brush blasting or painting water towers, and any
risk of injury to neighboring landowners.
Corbett acknowledges the proper standard but maintains that
he never claimed that Cunningham negligently performed the
work that it was hired to do—instead, his claim stems from what
Cunningham failed to do. He argues that Cunningham should have
used "different materials or a protective curtain." And this, he as-
serts, requires no specialized knowledge. See McKnight v. St.
Francis Hosp. & School of Nursing, 224 Kan. 632, 633, 585 P.2d
984 (1978) (common knowledge exception to requirement of ex-
pert testimony); Webb v. Lungstrum, 223 Kan. 487, Syl. ¶ 3, 575
P.2d 22 (1978) (same).
484 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
But our review of caselaw leads us to agree that an expert wit-
ness was necessary here. See Gaumer, 41 Kan. App. 2d at 408
(finding that standard of care for seller of used hay baler was out-
side ordinary experience and common knowledge of the jury and
beyond capability of lay person to decide, so expert testimony was
necessary); Tudor v. Wheatland Nursing, 42 Kan. App. 2d 624,
632-33, 214 P.3d 1217 (2009) (finding expert testimony necessary
to prove standard of care for nursing home employees for patient
who needed particularized supervision because of a complex med-
ical condition); Midwest Iron & Metal, Inc. v. Zenor Elec. Co., 28
Kan. App. 2d 353, 354-55, 19 P.3d 181 (2000) (finding customer
who sued electrical contractor for causing electrical fire while in-
stalling fusing needed expert testimony to establish standard of
care for electrical contractors, as profession was technical and
complex).
Corbett relies most heavily on Juhnke v. Evangelical Lutheran
Good Samaritan Society, 6 Kan. App. 2d 744, 748, 634 P.2d 1132
(1981). It used this test: "Whether expert testimony is necessary
to prove negligence is dependent on whether, under the facts of a
particular case, the trier of fact would be able to understand, absent
expert testimony, the nature of the standard of care required of
defendant and the alleged deviation therefrom." 6 Kan. App. 2d at
748. There, a patient was pushed by another patient, fell to the
floor, and was seriously injured. The panel found that the defend-
ant's "treatment and care of this patient was so obviously lacking
in reasonable care and had such serious consequences that the lack
of reasonable care would have been apparent to and within the
common knowledge and experience of mankind in general." 6
Kan. App. 2d at 748. Thus the trial court erred by requiring expert
testimony to establish the standard of care in the community in
similar facilities.
But the facts about the defendant's knowledge in Juhnke are
distinguishable from ours. The defendant in Juhnke had notice that
the patient who pushed others had been suffering from progressive
mental deterioration for over a year, and that her mental condition
continued to deteriorate. The defendant in Juhnke also knew that
her behavior generally was very belligerent, and that she wan-
dered around the nursing home and into the rooms of other pa-
tients, pushing, tripping, and hurting others.
VOL. 63 COURT OF APPEALS OF KANSAS 485
Corbett v. City of Kensington
A juror's common knowledge includes that one person should
not push another so that one falls and sustains serious injuries, and
that caregivers should not permit a mentally disturbed patient to
roam about freely. Common knowledge may also tell a juror what
the caregivers should have done differently, given their
knowledge. But as the district court here explained:
"The proper procedure[] to sandblast and paint a water tower is specialized work.
It is not within the common knowledge and expertise of jurors.
. . . .
"Now, without some expert testimony, the jury is not going to be able to under-
stand what the reasonable care is when cleaning and painting a water tower, or
what Cunningham should have done differently."
Corbett points to no comparable evidence here. One's common
knowledge does not extend to understanding whether a curtain or
other protective device exists or should be used to protect adjacent
landowners from debris created by brush blasting a City's water
tower. The district court properly held that without expert testi-
mony, a jury would be unable to determine the standard of care,
or duty. And without this standard, a jury could not determine
whether that duty has been breached.
Corbett invites us to focus on the mechanism of the injury and
find that a slip and fall caused by surface sand is within the com-
mon knowledge of jurors, so his case needs no expert testimony.
Corbett contrasts this with Gaumer, when the plaintiff was injured
by a hay baler and brought a failure to warn claim, requiring spe-
cialized knowledge. But our inquiry is not so narrow—we must
consider all the circumstances. Corbett alleges Cunningham was
negligent by failing to control the spread of sand and debris from
the water tower project, suggesting that Cunningham should have
used a different material or a protective curtain. But a typical juror
has no way to know whether Cunningham should have used a cur-
tain or other material. A person's ordinary knowledge gained from
common life experience, such as painting a house or a room, does
not include whether a painter and brush blaster of water towers
should, in the exercise of reasonable care, use a protective curtain,
or whether a curtain or some other precaution is possible or pref-
erable or effective. So one's common knowledge does not suggest
that Cunningham was negligent by failing to control the spread of
sand and debris from the water tower project.
486 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
Corbett provided no evidence which could show that the ex-
ercise of "reasonable care would have prevented any sand from
falling on [his] immediately adjacent property." Corbett also
failed to show that "such tidy perfection is required by industry
standards, or [that it is] even possible." Corbett concedes that the
duty of ordinary care requires reasonableness under the circum-
stances, but he ignores that the chief circumstance that allegedly
caused his injury was the brush blasting of a water tower, some-
thing outside the common knowledge of a juror.
Because expert testimony was required, Corbett had the bur-
den to provide the necessary expert evidence when Cunningham
moved for summary judgment. "He must actively come forward
with something of evidentiary value to establish a disputed mate-
rial fact. Evidentiary value means a document or testimony must
be probative of [his] position on a material issue of fact." Hare v.
Wendler, 263 Kan. 434, 444, 949 P.2d 1141 (1997). Corbett did
not do so.
To the contrary, the only expert on this issue (Phillips)—
whom Corbett and both defendants endorsed—provided uncon-
troverted testimony that Cunningham performed its job according
to industry standards. Phillips testified that "it's typical industrial
practices to do exactly what was done on the tank." The record
thus establishes that Cunningham followed industry standards
when completing its work. And Corbett fails to show that Cun-
ningham had to do more than industry standards require. Cunning-
ham is thus entitled to summary judgment on his personal injury
claim.
Corbett's Lead Contamination Claim
Similarly, the district court granted summary judgment on
Corbett's lead contamination claim because Corbett provided no
expert testimony showing causation:
"There has to be some expert testimony about the causation of the
supposed lead contamination to show that whatever lead contam-
ination there was caused by this work done in 2018 by Cunning-
ham on the water tower. There simply isn't enough evidence there
to present that to the jury."
Corbett contends that the district court erred, as expert testi-
mony is not always necessary to prove causation, citing Moore v.
VOL. 63 COURT OF APPEALS OF KANSAS 487
Corbett v. City of Kensington
Associated Material & Supply Co., 263 Kan. 226, 948 P.2d 652
(1997) (regarding cause of flooding to house). True, Moore held
that "[w]here the causal nature of an action is self-evident, an ex-
pert is not required in order to submit a matter for decision to a
jury, regardless of the existence of other complicating factors."
263 Kan. at 239. So, for example, as Moore recognized, the jury
did not need help from an expert to evaluate whether a duty clearly
defined in the Manual on Uniform Traffic Control Devices had
been breached. 263 Kan. at 235 (citing Sterba v. Jay, 249 Kan.
270, 283, 816 P.2d 379 [1991]).
But the district court's ruling was not broad enough to find
expert testimony always necessary to prove causation. It made its
ruling in the context of the facts of this case and required an expert
to show causation between the lead contamination on Corbett's
land and Cunningham's 2018 work on the water tower. Nothing
about the fact that Corbett found paint chips in his yard makes the
causal nature of his lead contamination claim self-evident, so as
to fall within Moore's holding. See Kuxhausen v. Tillman Part-
ners, 291 Kan. 314, 320, 241 P.3d 75 (2010) (post hoc ergo prop-
ter hoc reasoning alone shows speculation and does not forge
causal link between purported wrongful conduct and claimed
harm).
Although Corbett designated an expert on lead contamination,
Northcott, his testimony did not establish causation. His testimony
was about the results of lead testing. Corbett points to no evidence
in Northcott's expert report that tends to show that the samples
taken from Corbett's yard and tested were not on Corbett's prop-
erty before the water tower project began, or that they likely came
from that project.
To the contrary, defendants' lead contamination expert, Folkes,
found Northcott's investigation insufficient to determine the source of
the lead; the data and evidence collected failed to show that the 2018
water tower project was the source of the lead contamination on Cor-
bett's property. Folkes concluded that a more likely source of the lead
was paint from Corbett's house or older painted structures in the area,
historical auto emissions, or lead-containing herbicides or pesticides.
The only evidence contradicting Folkes is Corbett's conclu-
sory testimony that the paint chips from his yard came off the wa-
ter tower. Had the paint chips been found on the plastic tarp that
488 COURT OF APPEALS OF KANSAS VOL. 63
Corbett v. City of Kensington
was put on Corbett's property right before the water tower project
began, one might reasonably infer that the paint chips had come
from the water tower. But without more, Corbett's testimony that
he got the paint chips from his yard does not support his specula-
tion that they came from the water tower, particularly in the face
of expert testimony to the contrary. Corbett thus fails to raise a
material question of fact about his lead contamination claim.
Summary judgment is warranted in favor of both defendants.
THE CROSS-APPEALS
The City filed a notice of conditional cross-appeal, asking that
if we reverse the district court's dismissal of the claims against it,
it be allowed to reinstate a cross-claim against Cunningham. Cun-
ningham also cross-appeals, arguing the district court erred in
finding it owed Corbett a duty of reasonable care.
Because we are ruling in defendants' favor, we decline to ad-
dress these cross-appeals. See Rodman v. Matzke, No. 115,374,
2018 WL 911225, at *9 (Kan. App. 2018) (unpublished opinion)
("if the appellate court denies relief to a losing party on the
grounds he or she has raised and, thus, affirms the judgment, it has
no reason to address the cross-appeal—that's what makes the
cross-appeal conditional"). We would be offering an advisory
opinion on the issues in the cross-appeal since those issues would
not alter the parties' legal relationship. See State ex rel. Schmidt v.
City of Wichita, 303 Kan. 650, 659, 367 P.3d 282 (2016) ("Kansas
courts do not issue advisory opinions.").
Affirmed.
VOL. 63 COURT OF APPEALS OF KANSAS 489
Corazzin v. Edward D. Jones & Co.
(530 P.3d 445)
No. 125,442
GUY CORAZZIN, Appellant, v. EDWARD D. JONES & CO., L.P.,
d/b/a EDWARD JONES, et al., Appellees.
___
SYLLABUS BY THE COURT
1. SUMMARY JUDGMENT—Negligence Claim for Premises Liability Re-
quires Four Elements. Summary judgment is rarely appropriate in negli-
gence cases, unless the plaintiff fails to establish a prima facie case demon-
strating the existence of the four elements of negligence: existence of a
duty, breach of that duty, an injury, and proximate cause. A negligence
claim based on premises liability requires the same four elements: duty,
breach, causation, and damages. If a court concludes that a defendant ac-
cused of negligence did not have a duty to act in a certain manner toward
the plaintiff, then a court may grant summary judgment because the exist-
ence of duty is a question of law.
2. SAME—Disputed Issues of Material Fact May Not Be Decided by Trial
Court Judge. A trial court judge may not decide disputed issues of material
fact on summary judgment, even if the claims sound in equity rather than
law.
3. SAME—Party Cannot Avoid Summary Judgment if Hoping for Later De-
velopments in Discovery or Trial. A party cannot avoid summary judgment
on the mere hope that something may develop later during discovery or at
trial. Mere speculation is similarly insufficient to avoid summary judgment.
4. TORTS—Owner or Operator Open to Public Has Duty to Warn of Dan-
gerous Condition. The owner of a business is not the insurer of the safety
of its patrons or customers. But an owner or operator of a place open to the
public has a duty to warn of any dangerous condition that the owner or op-
erator knows about—or should know about—if exercising reasonable care
while tending to the business.
5. SAME—Plaintiff's Requirement to Show Duty Existed to Prove Negli-
gence. To establish the existence of this duty, the plaintiff must show that
the owner or operator had actual knowledge of the condition, or that the
condition had existed for long enough that in the exercise of reasonable care
the owner or operator should have known of the condition. If no duty exists,
there can be no negligence.
Appeal from Johnson District Court; DAVID W. HAUBER, judge. Opinion
filed May 19, 2023. Affirmed.
490 COURT OF APPEALS OF KANSAS VOL. 63
Corazzin v. Edward D. Jones & Co.
Caroline R. Gurney and Michael J. Mohlman, of Smith Mohlman Injury
Law, LLC, of Kansas City, Missouri, for appellant.
Andrew D. Holder, of Fisher, Patterson, Sayler & Smith, L.L.P., of Over-
land Park, for appellees.
Before BRUNS, P.J., GREEN and WARNER, JJ.
GREEN, J.: In this premises liability case the plaintiff, Guy
Corazzin, was injured when he sat in an office chair, which later
collapsed and caused him to be injured. Corazzin sued Edward D.
Jones & Co., L.P. (Edward Jones), alleging that Edward Jones
negligently injured him because it failed to make sure that the
chair was safe for normal use. Edward Jones moved for summary
judgment. It alleged that it had no actual or constructive notice
that the chair was defective or dangerous. The trial court agreed
and granted Edward Jones' summary judgment motion.
On appeal, Corazzin contends that there were genuine issues
of material fact that precluded summary judgment. Corazzin
maintains that a warning in the assembly instructions put Edward
Jones on notice that the chair was not intended for commercial
use. Thus, Corazzin maintains that he created a genuine issue of
material fact as to whether Edward Jones had actual knowledge
that the chair was dangerous. Because we conclude that there are
no genuine issues of material fact, the granting of summary judg-
ment was appropriate. Thus, we affirm.
FACTS
Tracy Kunkel is a financial advisor at Edward Jones, with an
office in Overland Park. In November 2018, Kunkel bought six
new office chairs from Nebraska Furniture Mart in Kansas City,
Kansas. All six chairs were new Coaster Company of America,
L.P. brand, Model 800056 office chairs. The assembly instruc-
tions that Kunkel followed also included the following warning:
"'This product is for home use only and not intended for commer-
cial establishment.'" Kunkel assembled the chairs and placed them
in her office for customers to use. Kunkel acted in the course and
scope of her employment with Edward Jones.
Roughly a month later, Corazzin and his wife attended a meet-
ing at Kunkel's office to discuss investment opportunities. Kunkel
VOL. 63 COURT OF APPEALS OF KANSAS 491
Corazzin v. Edward D. Jones & Co.
did not direct Corazzin to sit in any particular chair. Corazzin did
not recall anything unusual about the chair he chose to sit in and
stated at his deposition that he would have chosen a different chair
if he had thought there was anything unusual. Although Corazzin
did not inspect the chair, he did not see any readily apparent
cracks, flaws, instability, or other indication that the base of the
chair could break.
Corazzin sat in the chair for approximately 30 minutes. But
when he pushed back from the table to cross his legs, he fell to the
ground. Corazzin recalled everything going black, and when his
vision returned his wife and Kunkel were standing over him. After
helping Corazzin up, Kunkel told him that someone larger than
him—in excess of 300 pounds—had sat in the chair the day be-
fore. Kunkel remarked that the chairs were brand new, indicating
she was surprised that the chair had broken. Two photographs of
the chair show that the legs of the chair had snapped. At his dep-
osition, Corazzin was shown the chair's assembly instructions. He
agreed that assembly required the wheels to be inserted into the
spokes. But when he viewed the photographs of the chair, it did
not appear that the wheels had come off the spokes, but rather two
of the spokes simply snapped. Corazzin could not think of any-
thing that, in hindsight, would have told him that there was an is-
sue with the chair.
Corazzin filed a negligence action against Edward Jones
based on premises liability, alleging personal injury and damages.
Edward Jones moved for summary judgment, arguing that it had
no duty to repair the chair or warn Corazzin because it had no no-
tice of a dangerous condition. The trial court granted summary
judgment, ruling that no genuine issues of material fact existed in
this action.
Corazzin timely appeals.
ANALYSIS
Did the warning give Edward Jones notice that the chair was dan-
gerous?
Corazzin argues that summary judgment was improper be-
cause he presented the following evidence of the warning in the
492 COURT OF APPEALS OF KANSAS VOL. 63
Corazzin v. Edward D. Jones & Co.
chair's assembly instructions, which created a genuine issue of
material fact:
"Warning!
"1. Don't attempt to repair or modify parts that are broken or defective. Please
contact the store immediately.
"2. This product is for home use only and not intended for commercial establish-
ment." (Emphasis added.)
Corazzin contends in his brief that despite the warning, an Ed-
ward Jones' employee assembled the chair and used it in Edward
Jones' business.
"Plaintiff contends that the warning exists because this piece of furniture
was not designed to tolerate constant, heavy traffic in a commercial setting. Fur-
niture placed in a commercial setting like Defendant's offices would require
higher durability since you have more people and heavier people using it, and
thus more wear and tear on the furniture. Constant use in a commercial setting
may cause a piece of furniture to snap and break, as happened in the case pres-
ently before the Court. The warning provided Defendant actual notice that the
subject chair was not intended to withstand frequent use in a commercial office
setting. Defendant Edward Jones, through their employee, Tracy Kunkel, had
this information, but chose to use the chair in a commercial setting, directly coun-
ter to the warning. Thus, there is sufficient evidence in the record to establish
that Defendant had actual knowledge of a dangerous condition on the premises."
Thus, Corazzin maintains that Edward Jones was aware that
the chair had been misused based on the warning label, and he
maintains that this created a dangerous condition. Edward Jones,
however, argues that no evidence exists showing that it knew the
chair presented a dangerous condition. Also, we note that Co-
razzin, in his brief, acknowledges the following: that Edward
Jones "did not create the hazard. Therefore, actual or constructive
notice is required to establish liability."
Our standard of review for summary judgment is well known:
"Summary judgment is appropriate when the pleadings, depositions, answers to
interrogatories, admissions on file, and supporting affidavits show that no genu-
ine issue exists as to any material fact and the moving party is entitled to judg-
ment as a matter of law. The district court must resolve all facts and reasonable
inferences drawn from the evidence in favor of the party against whom the ruling
is sought. When opposing summary judgment, a party must produce evidence to
establish a dispute as to a material fact. In order to preclude summary judgment,
the facts subject to the dispute must be material to the conclusive issue in the
case. Appellate courts apply the same rules and, where they find reasonable
VOL. 63 COURT OF APPEALS OF KANSAS 493
Corazzin v. Edward D. Jones & Co.
minds could differ as to the conclusions drawn from the evidence, summary judg-
ment is inappropriate. Appellate review of the legal effect of undisputed facts is
de novo. [Citation omitted.]" GFTLenexa, LLC v. City of Lenexa, 310 Kan. 976,
981-82, 453 P.3d 304 (2019).
When the controlling facts are based on the parties' joint stip-
ulation, an appellate court determines de novo whether the moving
party is entitled to a judgment as a matter of law. Stewart Title of
the Midwest v. Reece & Nichols Realtors, 294 Kan. 553, 557, 276
P.3d 188 (2012).
An issue of fact is not genuine unless it has legal controlling
force as to the controlling issue. A disputed question of fact which
is immaterial to the issue does not preclude summary judgment.
In other words, if the disputed fact, however resolved, could not
affect the judgment, it does not present a "genuine issue" for pur-
poses of summary judgment. Northern Natural Gas Co. v.
ONEOK Field Services Co., 296 Kan. 906, 934, 296 P.3d 1106
(2013). As a general rule, summary judgment in a pending case
should not be granted until discovery is complete. Nevertheless, if
the facts pertinent to the material issues are not disputed, summary
judgment may be appropriate even when discovery is unfinished.
296 Kan. at 935. "A party who requires more discovery to defend
against a motion for summary judgment must seek a continuance
to conduct that discovery under K.S.A. 2019 Supp. 60-256(f). [Ci-
tation omitted.]" Farmers Bank & Trust v. Homestead Community
Development, 58 Kan. App. 2d 877, 883, 476 P.3d 1 (2020).
Summary judgment is rarely appropriate in negligence cases,
unless the plaintiff fails to establish a prima facie case demonstrat-
ing the existence of the four elements of negligence: "existence
of a duty, breach of that duty, an injury, and proximate cause."
Montgomery v. Saleh, 311 Kan. 649, 653, 466 P.3d 902 (2020). If
a court concludes that a defendant accused of negligence did not
have a duty to act in a certain manner toward the plaintiff, then a
court may grant summary judgment because the existence of duty
is a question of law. Elstun v. Spangles, Inc., 289 Kan. 754, 757,
217 P.3d 450 (2009).
Our Supreme Court has recognized that a trial court judge may
not decide disputed issues of material fact on summary judgment:
"A district court judge may not decide disputed issues of material
494 COURT OF APPEALS OF KANSAS VOL. 63
Corazzin v. Edward D. Jones & Co.
fact on summary judgment, even if the claims sound in equity ra-
ther than law." Stechschulte v. Jennings, 297 Kan. 2, Syl. ¶ 1, 298
P.3d 1083 (2013).
A nonmovant cannot evade summary judgment by hoping
something may develop later in the action: "'A party cannot avoid
summary judgment on the mere hope that something may develop
later during discovery or at trial. Mere speculation is similarly in-
sufficient to avoid summary judgment.' [Citations omitted]." Geer
v. Eby, 309 Kan. 182, 190, 432 P.3d 1001 (2019).
As stated earlier, negligence claims require a plaintiff to show
four well-known elements—that a duty is owed to the plaintiff;
that a breach of that duty has occurred; that the breach of duty has
caused the plaintiff's injury; and that damages have been suffered
by the plaintiff—in short: duty, breach, causation, and damages.
Granados v. Wilson, 317 Kan. 34, 44, 523 P.3d 501 (2023). A
negligence claim based on premises liability requires the same
four elements: duty, breach, causation, and damages. Rogers v.
Omega Concrete Systems, Inc., 20 Kan. App. 2d 1, 4, 883 P.2d
1204 (1994) (citing McGee v. Chalfant, 248 Kan. 434, 437, 806
P.2d 980 [1991]).
One of the succinct expressions of the premises liability rule
is found in Cunningham v. Braum's Ice Cream & Dairy Stores,
276 Kan. 883, 890, 80 P.3d 35 (2003) (quoting Seibert v. Vic Reg-
nier Builders, Inc., 253 Kan. 540, 548, 856 P.2d 1332 [1993]).
There our Supreme Court observed this business principle: "'The
owner of a business is not the insurer of the safety of its patrons
or customers.'" 276 Kan. at 890. Nevertheless, an owner or oper-
ator of a place open to the public has a duty to warn of any dan-
gerous condition that the owner or operator knows about—or
should know about—if exercising reasonable care while tending
to the business. Thompson v. Beard and Gabelman, Inc., 169 Kan.
75, 77, 216 P.2d 798 (1950).
To establish the existence of this duty, the plaintiff must show
that the owner or operator had actual knowledge of the condition,
or that the condition had existed for long enough that in the exer-
cise of reasonable care the owner or operator should have known
of the condition. See Jackson v. K-Mart Corp., 251 Kan. 700, 703,
840 P.2d 463 (1992); Magness v. Sidmans Restaurants, Inc., 195
VOL. 63 COURT OF APPEALS OF KANSAS 495
Corazzin v. Edward D. Jones & Co.
Kan. 30, 32, 402 P.2d 767 (1965). Whether a duty exists is a ques-
tion of law. Rogers, 20 Kan. App. 2d at 4-5. "If no duty exists,
there can be no negligence." Fountain v. Se-Kan Asphalt Services,
Inc., 17 Kan. App. 2d 323, 327, 837 P.2d 835 (1992).
With this understanding, it is appropriate for us to focus on
Corazzin's negligence action. Corazzin claims that the warning
about home use furniture versus commercial use furniture gave
Edward Jones sufficient notice that the chair presented a danger to
customers. Edward Jones, however, argues that the warning itself
is not enough to qualify as notice of a dangerous condition. Our
research has revealed no Kansas case exactly on point with the
issue in this case. We have found persuasive precedents from other
jurisdictions involving an issue similar to the one in this case.
In the first case we will consider, Melinda Thomas sustained
injuries at The Shed restaurant when a picnic bench, which she
was sitting on, collapsed. Thomas v. Shed 53, LLC, 331 So. 3d 66,
68 (Miss. App. 2021). After Thomas filed a personal injury action,
The Shed moved for summary judgment. Thomas responded by
arguing that the furniture The Shed purchased from Lowe's or
Home Depot was substandard and not intended for commercial
use. Thomas submitted expert affidavits in support of her claim.
But the affidavits from Thomas' experts did nothing to clarify why
the residential or commercial distinction was important or how the
business knew or should have known of a dangerous condition.
The trial court struck the expert testimony and granted summary
judgment.
On appeal, Thomas argued that there was a genuine issue of
material fact whether The Shed maintained its premises in a rea-
sonably safe manner. She claimed that The Shed created a danger-
ous condition by buying cheap, residential-grade furniture from
Lowe's or Home Depot which failed because the furniture was not
intended for more rigorous restaurant use. The Thomas court af-
firmed the trial court's summary judgment. In doing so, the court
held that The Shed had fulfilled its duty to customers by reasona-
bly inspecting and maintaining the restaurant furniture and had no
actual or constructive knowledge of a dangerous condition involv-
ing the furniture. The court candidly concluded: "Thomas pro-
vides no genuine issue of material fact that The Shed breached its
496 COURT OF APPEALS OF KANSAS VOL. 63
Corazzin v. Edward D. Jones & Co.
duty. Instead, Thomas merely points to the fact The Shed pur-
chased marked-down residential-grade picnic benches instead of
commercial-grade furniture." 331 So. 3d at 71.
Similarly, in our next case, Heather Dalzell sat at an outdoor
picnic table at a restaurant. Dalzell v. Mosketti L.L.C., No. 2015-
CA-93, 2016 WL 3032733 (Ohio App. 2016) (unpublished opin-
ion). The bench broke, injuring her. The restaurant purchased the
furniture at Lowe's less than a year before the accident, and the
restaurant did not alter or modify the furniture. The Dalzell court
held that summary judgment was appropriate because the restau-
rant had no knowledge of a defect in the bench until Dalzell fell.
2016 WL 3032733, at *7.
And in our third case, Charles Burnett was injured when vis-
iting Kenneth Covell's law office and a chair collapsed under him.
Burnett v. Covell, 191 P.3d 985 (Alaska 2008). Burnett failed to
produce—or even allege that he could produce—any evidence of
any signs of physical deterioration present in the chair. The Bur-
nett court upheld summary judgment for Covell because Burnett
could not show that Covell had breached his duty of care. 191 P.3d
at 991.
To advance our inquiry here, the cases which best exemplify
the extreme ends in this inquiry are probably Parks v. Steak & Ale
of Texas, Inc., No. 01-04-00080-CV, 2006 WL 66428 (Tex. App.
2006) (unpublished opinion), and Prechel v. Walmart, Inc., No.
21-CV-12388, 2023 WL 2267193 (E.D. Mich. 2023). Mitchell
Parks suffered injury when his chair at Steak & Ale collapsed un-
der him. The Parks court affirmed summary judgment because
Parks did not direct the court to anything in the record that showed
that Steak & Ale knew or should have known that the chair created
an unreasonable risk of harm. 2006 WL 66428, at *3. Thus, Parks
represents perhaps the low end of the spectrum, with the least ev-
idence and the weakest appellate case against summary judgment.
Corazzin gives us more than Parks gave the Parks court. Corazzin
points to the warning in the instruction manual that the chair was
intended for home use—not commercial use.
And Prechel represents the other end of the spectrum—a
plaintiff who presented sufficient evidence to survive a summary
judgment motion. Denise Prechel was shopping for a desk chair at
a Sam's Club store when a sales associate placed a chair in the
VOL. 63 COURT OF APPEALS OF KANSAS 497
Corazzin v. Edward D. Jones & Co.
aisle for her to try out. When Prechel sat down in the chair, the
chair tipped or tilted and Prechel sunk more than expected, into a
squatting position. Her petition alleged a back injury, caused by
the fact that the chair was missing one of its five wheels. The
Prechel court denied summary judgment, noting that the photo-
graphs clearly showed that the wheel was visibly missing both be-
fore and after the incident. The court held that a jury could find
that the alleged defect existed long enough for the defendants to
know about it and fail to correct it: "A reasonable jury could con-
clude that defendants had constructive notice of the hazardous de-
fect." 2023 WL 2267193, at *4. Thus, a visible, uncorrected defect
in the chair was enough to move Prechel beyond summary judg-
ment.
In reading these five cases, Parks and Prechel show the kinds
of evidence which would control a summary judgment ruling. If a
plaintiff presents literally nothing, as in Parks, the trial court
should grant summary judgment. But if a plaintiff can show—as
in Prechel—a readily apparent structural defect in the chair, then
summary judgment is inappropriate.
In support of its position, Edward Jones cites Pringle v. SLR,
Inc. of Summerton, 382 S.C. 397, 400-01, 675 S.E.2d 783 (2009).
In this case, the plaintiff suffered personal injuries at a restaurant
when the legs of the chair she was seated in suddenly broke. In her
deposition, the plaintiff testified that before the chair collapsed,
she did not notice anything wrong with the chair, and that the chair
was not rickety, wobbly, or otherwise unstable.
Edward Jones points out in its brief that the plaintiff in Pringle
designated a furniture salesman as an expert, who opined the fol-
lowing: (1) that the chair was a residential chair unfit for use in a
commercial setting and (2) that residential chairs are not built to
withstand frequent use in a commercial setting. The expert further
opined that over time and with frequency of use, a residential chair
in a commercial setting would show signs of wear, such as becom-
ing wobbly, shaky, or loose.
Although Corazzin did not file a reply brief to distinguish his
case from Pringle, we note that his case is distinguishable on the
issue of notice. Here, the record clearly establishes that Kunkel
purchased the chair and followed the instructions—instructions
which contained the residential-use-only warning. But the expert
498 COURT OF APPEALS OF KANSAS VOL. 63
Corazzin v. Edward D. Jones & Co.
in Pringle testified that "some" residential chairs were stamped
with such a warning label. 382 S.C. at 401. And the expert could
not say whether a residential-use-only warning label was present
since he was unable to examine the broken and discarded chair.
Also, the owner in Pringle testified that some chairs came with
the restaurant when he bought it and others he purchased later. But
he could not say whether the chair which broke was one that he
purchased himself. 382 S.C. at 402. So the record in Pringle is
more ambiguous than this case since the chair in Pringle may or
may not have had a warning label and the defendant may or may
not have seen it.
Nevertheless, this factual dissimilarity between this case and
Pringle is useful in our discussion of premises liability because it
shows that a warning label may not be significant in determining
whether a residential chair is dangerous. For instance, the Pringle
court held: "Although [the expert in Pringle] opined that residen-
tial chairs like the ones used in the restaurant are not substantial
enough for use in a commercial setting because they cannot sus-
tain heavy general use, he never stated that a residential chair in
and of itself is a dangerous condition." 382 S.C. at 404-05. Thus,
under the Pringle court's reasoning, if a residential chair in and of
itself is not a dangerous condition, then a warning label that a chair
is for residential use only would not warn the owner or operator
of a dangerous condition.
Indeed, the Pringle court further ruled that summary judgment
would be appropriate whether or not the owner knew the chair was for
residential use only. The Pringle court stated: "We agree with the trial
court that the Pringles did not present a genuine issue of material fact
as to whether the use of a residential chair in a commercial establish-
ment, without more, constitutes evidence of negligence on the part of
the owner of the establishment." 382 S.C. at 406. And, mindful of the
plaintiff's burden when confronted with summary judgment, the Prin-
gle court further added that there was no evidence that the restaurant
"knew or should have known that the chair was in danger of collapse
or other failure." 382 S.C. at 405.
To establish damages for injuries caused by a dangerous or defec-
tive condition on a defendant's premises, a plaintiff must show either
(1) that the owner or operator had actual knowledge of the condition or
(2) that the condition had existed for long enough that in the exercise
VOL. 63 COURT OF APPEALS OF KANSAS 499
Corazzin v. Edward D. Jones & Co.
of reasonable care the owner or operator should have known of the
condition. See Jackson, 251 Kan. at 703.
Applying these principles to the present case, the subject chair here
was undisputedly residential—not commercial—furniture. Corazzin
contends that residential furniture presents a dangerous condition when
used in a commercial setting. Also, he contends that residential chairs,
like the one he collapsed in, are not substantial enough for commercial
use because they cannot take the heavy general use they encounter.
Nevertheless, the evidence shows that the subject chair was in use for
only a short period before it collapsed—roughly one month. As Ed-
ward Jones points out in its brief, the subject chair showed no signs of
deterioration. There was no evidence presented that the subject chair
had a visible or uncorrected defect in the chair, unlike the evidence of
the visible and uncorrected chair defect in the Prechel decision.
Also, Corazzin, in his deposition testimony, stated that he would
have chosen a different chair if he had thought there was anything un-
usual about the chair. Although he did not inspect the chair, he stated
that he did not see any readily apparent cracks, flaws, instability, or
other indication that the base of the chair could break.
As Thomas and Pringle show, a plaintiff does not establish a gen-
uine issue of material fact just by showing residential-grade furniture
being used in a commercial setting. Corazzin's argument that Edward
Jones knew or should have known that the subject chair was danger-
ous—based on the warning label—does not present evidence showing
that Edward Jones had reason to know: (1) that the chair was danger-
ous or (2) that the chair was in a defective condition that had existed
long enough that in the exercise of reasonable care Edward Jones
should have known of this condition. Thus, Corazzin's claim is insuf-
ficient to create a genuine issue of material fact that Edward Jones neg-
ligently placed the subject chair in one of its offices.
For the preceding reasons, we affirm the trial court's grant of sum-
mary judgment.
Affirmed.
500 COURT OF APPEALS OF KANSAS VOL. 63
State v. Stohs
___
No. 124,314
STATE OF KANSAS, Appellee, v. JOSHUA EVAN STOHS, Appellant.
___
SYLLABUS BY THE COURT
1. CRIMINAL LAW—Sentencing—K.S.A. 21-5109(d) Applicable When Multiple
Crimes Charged for Same Conduct. The sentencing rule contained in K.S.A. 2022
Supp. 21-5109(d) only applies when the prosecutor charges the defendant with
multiple crimes for the same conduct.
2. SAME—Interference with Law Enforcement Officer Not Alternative Of-
fense of Identity Theft—Identity Theft Definition. Interference with a law
enforcement officer is not a more specific instance of identity theft. To the
contrary, identity theft prohibits different conduct, to wit: possessing some-
one else's personal identifying information and using it to deceive someone
for a benefit.
Appeal from Shawnee District Court; C. WILLIAM OSSMANN, judge. Opin-
ion filed May 26, 2023. Affirmed.
Kai Tate Mann, of Kansas Appellate Defender Office, for appellant.
Jodi Litfin, deputy district attorney, Michael Kagay, district attorney, and
Derek Schmidt, attorney general, for appellee.
Before ARNOLD-BURGER, C.J., BRUNS and ISHERWOOD, JJ.
ARNOLD-BURGER, C.J.: Joshua Evan Stohs was convicted by
a jury of one count of identity theft after giving a police officer a
social security card that belonged to someone else to hide his iden-
tity and thus avoid being arrested on outstanding warrants. On ap-
peal, he argues that the charge of interference with law enforce-
ment is a more specific crime related to the same conduct. Based
on K.S.A. 2022 Supp. 21-5109(d)(2), he contends the court could
only sentence him to the misdemeanor charge of interference with
law enforcement. Because we find that K.S.A. 2022 Supp. 21-
5109(d)(2) does not apply when only one crime is charged, Stohs'
claim fails.
Second, Stohs argues that his conviction should be reversed
because the district court gave a jury instruction that contained an
element broader than the charging document. We agree that the
instruction was erroneous, but we are not firmly convinced the
VOL. 63 COURT OF APPEALS OF KANSAS 501
State v. Stohs
jury would have reached a different verdict if the erroneous in-
struction had not been given. In other words, the error does not
require reversal. We affirm the district court.
FACTUAL AND PROCEDURAL HISTORY
On July 2, 2019, City of Topeka police officers Derek Child
and Bryan Stricklin stopped a man walking down the wrong side
of a road. The man told them his name was Joshua Greemore and
produced a social security card with that name on it, claiming that
his other forms of identification had been stolen. The social secu-
rity card listed the correct social security number for Joshua Gree-
more. Upon running that name through a driver's license database,
Officer Child determined the man did not look like the photo de-
picted on the license and asked Officer Stricklin to look at the
photo as well. When shown the photo, the man agreed the person
in the photo was not him. The officers placed the man under arrest
and transported him to the police station, where he revealed his
real name was Joshua Stohs. The officers then learned Stohs had
outstanding warrants.
Stohs was charged through grand jury indictment with one
count of identity theft, a felony, under K.S.A. 2019 Supp. 21-
6107(a)(1). In particular, the indictment alleged:
"On or about the 2nd of July, 2019 in the State of Kansas and County of
Shawnee, JOSHUA EVAN STOHS, did then and there, unlawfully, knowingly,
and feloniously, obtain, possess, transfer, use, sell, or purchase any personal
identifying information, or document containing the same, belong to or issued to
another person, to-wit: name and/or date of birth and/or social security number
of Joshua Greemore, with the intent to defraud that person, or anyone else, to-
wit: Officer Child, in order to receive any benefit, or with the intent to misrep-
resent that person in order to subject that person to economic or bodily harm[.]"
Joshua Greemore testified at Stohs' jury trial that he did not
know Stohs and never gave him his social security card nor al-
lowed Stohs to use his identity.
During the jury instruction conference, Stohs proposed a de-
fense instruction on interference with law enforcement as an alter-
native offense—not a lesser included offense. See K.S.A. 2019
Supp. 21-5904(a)(1)(C). The court declined and instructed the
jury to consider whether:
502 COURT OF APPEALS OF KANSAS VOL. 63
State v. Stohs
"1. The defendant obtained, possessed, transferred, or used any personal
identifying information or document containing personal identifying information
belonging to or issued to Joshua Greemore.
"2. The defendant did so with the intent to defraud Officer Child and/or
Officer Stricklin in order to receive any benefit.
"3. This act occurred on or about the 2nd day of July, 2019, in Shawnee
County, Kansas."
The jury found Stohs guilty of identity theft as charged.
At sentencing, the district court found Stohs' criminal history
score to be A, without objection, and imposed a mitigated sen-
tence of 19 months in prison.
Stohs timely appealed.
ANALYSIS
I. STOHS' SENTENCE WAS NOT ILLEGAL
Stohs challenges the sentence for his felony identity theft con-
viction under K.S.A. 2019 Supp. 21-5109(d)(2), arguing that mis-
demeanor interference with law enforcement is a more specific
crime applicable to his conduct in giving a false name to the of-
ficers. As a result, he contends that the statute requires that he can
be sentenced only under the more specific though uncharged
crime, the misdemeanor. Although not raised before the district
court, we have jurisdiction to decide this issue because an illegal
sentence can be corrected at any time. K.S.A. 2022 Supp. 22-
3504.
Our standard of review is unlimited.
Resolving Stohs' claim turns on interpretation of three stat-
utes, which presents a question of law subject to unlimited appel-
late review. See State v. Stoll, 312 Kan. 726, 736, 480 P.3d 158
(2021). When interpreting a statute, this court must first seek to
ascertain the legislative intent behind the language used by giving
common words their ordinary meanings. State v. Keys, 315 Kan.
690, 698, 510 P.3d 706 (2022). When a statute is plain and unam-
biguous, an appellate court should not speculate about the legisla-
tive intent behind the clear language and it should refrain from
reading something into the statute that is not readily found in its
words. 315 Kan. at 698.
VOL. 63 COURT OF APPEALS OF KANSAS 503
State v. Stohs
The law related to prosecutorial charging decisions is exam-
ined.
"It is often the case that a particular set of facts—if proven
beyond a reasonable doubt—could support a conviction under
several different statutes." State v. Euler, 314 Kan. 391, 395, 499
P.3d 448 (2021). The prosecuting attorney has broad discretion in
discharging their duty. The scope of this discretion extends to the
power to investigate and to determine who will be prosecuted and
what crimes will be charged. Comprehensive Health of Planned
Parenthood v. Kline, 287 Kan. 372, 408, 197 P.3d 370 (2008).
But prosecutorial power is not limitless. 287 Kan. at 408. The
Legislature has restricted that power by adopting rules related to
sentencing when the prosecutor has charged multiple crimes for
the same act. For example, "[a] defendant may not be convicted
of identical offenses based upon the same conduct." K.S.A. 2022
Supp. 21-5109(e). "Where identical offenses are involved, the
question is not truly a matter of one being a lesser included offense
of the other. Each has identical elements and the decision as to
which penalty to seek cannot be a matter of prosecutorial whimsy
in charging. As to identical offenses, a defendant can only be sen-
tenced under the lesser penalty." State v. Clements, 241 Kan. 77,
83, 734 P.2d 1096 (1987). Stohs does not argue that the offenses
of identity theft and the uncharged crime of interference with a
law enforcement officer are identical.
Similarly, upon prosecution for a crime, the defendant may be
convicted of either the crime charged or a lesser included crime,
but not both. K.S.A. 2022 Supp. 21-5109(b). Stohs does not argue
that interference with a law enforcement officer is a lesser in-
cluded offense of identity theft.
And finally, the situation that Stohs argues governs his case:
"[W]hen crimes differ only in that one is defined to prohibit a designated kind of
conduct generally and the other to prohibit a specific instance of such conduct,
the defendant:
(1) May not be convicted of the two crimes based upon the same conduct;
and
(2) shall be sentenced according to the terms of the more specific crime."
K.S.A. 2019 Supp. 21-5109(d).
504 COURT OF APPEALS OF KANSAS VOL. 63
State v. Stohs
Stohs argues that interference with a law enforcement officer is a
more specific—though uncharged—crime applicable here, and
therefore he can only be subject to the lesser misdemeanor sen-
tence. We disagree.
The statutory rule is not favored, but we must apply it to these
facts.
Before reaching this claim, we pause to note that our Supreme
Court has rejected the rule of statutory construction that a general
crime must give way to a more specific crime when applied to
prosecutorial charging decisions. See Euler, 314 Kan. 391. Euler
argued that the uncharged misdemeanor crime of unlawful use of
a financial card was a more specific crime than identity theft,
therefore she could be convicted only of the misdemeanor crime.
The court declared that the court-adopted rule of the application
of specific versus general crimes in the sentencing context was
"an accidental 'rule' which was never intended to apply to two statutes with di-
vergent elements. And importantly, as a tool of statutory interpretation to divine
legislative intent, the rule appears to be an anachronism held-over from the days
prior to our more rigorous insistence on the governing principle of statutory plain
language." 314 Kan. at 397.
It emphasized that "when a criminal statute by its plain language
unambiguously applies to a given set of facts, there can be no con-
clusion under our current rules of statutory interpretation other
than that the Legislature intended the statute to apply." 314 Kan.
at 397. But the court was not presented with a statutory claim in
Euler, so the court "express[ed] no opinion on the possible ap-
plicability of [K.S.A. 2020 Supp. 21-5109(d)]" to the claims made
by Euler. 314 Kan. at 396. Here we must address the statutory
claim.
K.S.A. 2022 Supp. 21-5109(d) has no application when only
one crime is charged.
Statutory interpretation presents a question of law over which
appellate courts have unlimited review. Stoll, 312 Kan. at 736. The
most fundamental rule of statutory construction is that the intent
of the Legislature governs if that intent can be ascertained. State
VOL. 63 COURT OF APPEALS OF KANSAS 505
State v. Stohs
v. LaPointe, 309 Kan. 299, 314-15, 434 P.3d 850 (2019). An ap-
pellate court must first attempt to ascertain legislative intent
through the statutory language enacted, giving common words
their ordinary meanings. State v. Ayers, 309 Kan. 162, 163-64, 432
P.3d 663 (2019).
Reviewing the language in the statute it is clear that it applies
only when the prosecutor charges multiple crimes based on the
same conduct. The statute prohibits a defendant from being "con-
victed of the two crimes based upon the same conduct" and in-
structs that the defendant can be sentenced only to the terms of the
more specific crime. (Emphasis added.) K.S.A. 2022 Supp. 21-
5109(d). There would be no reason to caution prosecutors if only
one crime was charged. This provision applies only when the pros-
ecutor exercises their discretion to charge multiple crimes based
on the same conduct, discretion that is recognized earlier in the
statute. K.S.A. 2022 Supp. 21-5109(a) ("When the same conduct
of a defendant may establish the commission of more than one
crime under the laws of this state, the defendant may be prose-
cuted for each of such crimes.").
In other words, if the prosecutor stacks the charges based on
the same conduct, the sentence will be based on the more specific
statute, which may carry a significantly reduced sentence. It does
not prevent a prosecutor from charging a crime that carries a stiffer
penalty than other crimes the prosecutor could have charged. That
is purely a prosecutorial decision. See State v. Dixon, 60 Kan.
App. 2d 100, 136-37, 492 P.3d 455, 481 (2021) ("The discretion
to decide what charges to file in any situation is an important tool
reserved to the prosecutor, and courts should not try to interfere
with such discretion, nor do we have the power to do so."), rev.
denied 314 Kan. 856 (2021).
And if the evidence supports the crime with the stiffer penalty,
and the defendant is convicted, the defendant is subject to the
stiffer penalty regardless of how many other crimes the prosecutor
could have charged that had lesser penalties. Because Stohs was
only charged with one crime, felony identity theft, and he does not
question the sufficiency of the evidence supporting his conviction
of that charge, K.S.A. 2019 Supp. 21-5109(d) has no application.
506 COURT OF APPEALS OF KANSAS VOL. 63
State v. Stohs
Interference with a law enforcement officer is not a more spe-
cific instance of identity theft.
Even if we accepted Stohs' position that even when only one
crime is charged, he cannot receive a sentence any greater than the
most specific—though uncharged—statute criminalizing his con-
duct, interference with a law enforcement officer is not a more
specific instance of identity theft.
To determine whether one crime is more specific than another,
we first look to the language of the statute which instructs us to
examine whether one crime prohibits a designated kind of conduct
generally and the other crime prohibits "a specific instance of such
conduct." (Emphasis added.) K.S.A. 2022 Supp. 21-5109(d). So
we first examine the conduct or behavior criminalized in each stat-
ute.
A person commits identity theft by "obtaining, possessing,
transferring, using, selling or purchasing any personal identifying
information . . . with the intent to . . . [d]efraud that person, or
anyone else, in order to receive any benefit." K.S.A. 2022 Supp.
21-6107(a)(1). The key unlawful behavior as it applies to these
facts is the actual possession of personal identifying information
with intent to defraud or deceive someone (law enforcement) to
receive a benefit (not be arrested on a warrant).
Interference with a law enforcement officer is falsely or de-
ceptively reporting to a law enforcement officer "any information,
knowing that such information is false and intending to influence,
impede or obstruct" such officer's duty. K.S.A. 2022 Supp. 21-
5904(a)(1)(C). The key unlawful behavior is reporting any false
information that would impede or obstruct the officer in perform-
ing the officer's duty.
We have no hesitancy in concluding that interference with a
law enforcement officer is not a more specific instance of identity
theft. To the contrary, identity theft prohibits different conduct, to
wit: possessing someone else's personal identifying information
and using it to deceive someone. Although interference with a law
enforcement officer may be specific as to who the information
must be given to, it is not criminalizing "a specific instance" of
identity theft.
VOL. 63 COURT OF APPEALS OF KANSAS 507
State v. Stohs
II. ALTHOUGH THE DISTRICT COURT ERRED IN INSTRUCTING
THE
JURY, THE ERROR WAS NOT REVERSIBLE
Stohs also challenges his conviction for identity theft by argu-
ing that the district court expanded the scope of the charged of-
fense by including both officers in the jury instruction for identity
theft. Like the first issue, Stohs did not challenge the instruction
in district court. But we still have jurisdiction to hear his claim,
albeit under a different standard of review than had he raised it
before the district court. See K.S.A. 2022 Supp. 22-3414(3) ("No
party may assign as error the giving or failure to give an instruc-
tion . . . unless the party objects thereto before the jury retires to
consider its verdict . . . unless the instruction or the failure to give
an instruction is clearly erroneous.").
First, we consider whether the instruction was legally and fac-
tually appropriate, using an unlimited standard of review of the
entire record. State v. Holley, 313 Kan. 249, 254, 485 P.3d 614
(2021). Here, the State concedes that the identity theft instruction
was erroneous because it did not conform to the elements of the
crime charged in the indictment. See State v. McClelland, 301
Kan. 815, 828, 347 P.3d 211 (2015) (holding that a jury instruc-
tion on the elements of a crime that is broader than the complaint
charging the crime is erroneous). Although the indictment charged
Stohs with intending to defraud either Greemore or Officer Child,
the district court instructed the jury to find Stohs guilty if the State
proved he acted "with the intent to defraud Officer Child and/or
Officer Stricklin." As a result, the question we must answer is
whether that error is reversible.
When a party does not object to a jury instruction before the
district court, an appellate court reviews the instruction to deter-
mine whether it was clearly erroneous. K.S.A. 2022 Supp. 22-
3414(3). For a jury instruction to be clearly erroneous, the court
must be firmly convinced the jury would have reached a different
verdict if the erroneous instruction had not been given. The party
claiming clear error has the burden to show both error and preju-
dice. State v. Crosby, 312 Kan. 630, 639, 479 P.3d 167 (2021).
Stohs contends he was prejudiced by the erroneous instruction
because it tripled the number of ways the jury could find him
guilty since there were now two possible victims and he lacked
508 COURT OF APPEALS OF KANSAS VOL. 63
State v. Stohs
adequate notice to defend against the charge. See State v. Hart,
297 Kan. 494, 509, 301 P.3d 1279 (2013) (noting that prejudice
can result from overbroad instruction because of "lack of notice
about the accusation that must be defended"). To say that the in-
struction "tripled" the number of victims is not quite accurate,
however, since the jury instruction omitted Greemore while add-
ing Officer Stricklin. Stohs also fails to show how the erroneous
instruction hindered his defense in any way. As the State notes,
Stohs' defense consisted of arguing (1) that he was guilty of inter-
ference with law enforcement, and (2) that the evidence failed to
show he intended to receive any benefit. Put simply, neither de-
fense required the jury to believe Stohs specifically intended to
defraud only Officer Child—the only way the jury could have ac-
quitted him if given the correct instruction. The available evidence
shows that a jury would have still found him guilty if instructed to
focus on whether Stohs intended to defraud Officer Child.
In sum, we are not firmly convinced the jury would have
reached a different verdict if the erroneous instruction had not
been given.
Affirmed.
VOL. 63 COURT OF APPEALS OF KANSAS 509
Martin v. Mid-Kansas Wound Specialists, P.A.
___
No. 125,287
In the Matter of the Marriage of THOMAS A. MARTIN, Appellant,
and N
ANCY J. MARTIN Appellee, v. MID-KANSAS WOUND
SPECIALISTS, P.A., and EMERGENCY SERVICES, P.A.,
Intervenors.
___
SYLLABUS BY THE COURT
1. DIVORCE—Filing of Petition for Divorce—Each Spouse Becomes Owner of
Vested Interest in All Property. It is well settled law in Kansas that upon the filing
of a petition for divorce each spouse becomes the owner of a vested, but undeter-
mined, interest in all the property individually or jointly held by them.
2. SAME—Marital Property—Statutory Definition Includes All Property Owned or
Acquired by Either Spouse after Marriage. Under K.S.A. 2022 Supp. 23-2801,
marital property includes all property owned by married persons or acquired by
either spouse after the marriage.
3. SAME—Third Party May Assert Interest in Property of Marital Estate as
Intervenor or Joining as Party in Divorce Action—Court Makes Equitable
Division of Marital Property and Determines Third Party's Interest. In Kan-
sas, third parties asserting an interest in property of a marital estate can in-
tervene or be joined as parties in a divorce action. In this situation, the di-
vorce court's exclusive jurisdiction over the marital estate includes not only
the power to equitably divide the marital property between the spouses, but
it also includes the power to determine the third party's interest in the marital
property and to what extent that interest may be superior to the interest held
by either spouse.
4. CREDITORS AND DEBTORS—Debtor May Direct How Repayments for
Multiple Debts Are Applied under Common Law Rule in Kansas. Kansas
courts recognize the common law rule that a debtor who owes a creditor
multiple debts may direct how repayments should be applied; otherwise, the
creditor may elect to apply any payment as the creditor chooses.
Appeal from Sedgwick District Court; JEFFREY E. GOERING, judge. Opinion
filed June 16, 2023. Affirmed in part, reversed in part, and remanded with direc-
tions.
Christopher M. Joseph and Carrie E. Parker, of Joseph, Hollander & Craft
LLC, of Topeka, for appellant.
No appearance by appellee.
Todd E. Shadid, of Klenda Austerman LLC, of Wichita, for intervenors.
510 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
Before MALONE, P.J., GREEN and ISHERWOOD, JJ.
MALONE, J.: Thomas A. Martin (Husband) appeals the dis-
trict court's judgment granting Mid-Kansas Wound Specialists,
P.A. (MKWS) and Emergency Services, P.A. (ESPA) (collec-
tively, Intervenors) equitable liens against property in the marital
estate resulting from Husband's pending divorce from Nancy J.
Martin (Wife). The main issue on appeal is whether the district
court erred in granting Intervenors' request for equitable liens
against specific assets in the marital estate while the divorce was
still pending and before the marital property had been divided be-
tween Husband and Wife.
Under the facts presented here, we find the district court had
the authority and did not err in granting Intervenors' request for
equitable liens against specific assets of the marital estate. But we
find the district court erred in removing this property from the
marital estate. The property subject to Intervenors' liens remains
part of the marital estate and must be divided between the spouses
by decree under Kansas' statutory procedure.
FACTUAL AND PROCEDURAL BACKGROUND
Wife worked for Intervenors as a business administrator for
many years. In May 2017, Intervenors discovered that Wife had
been secretly taking millions of dollars from the two businesses.
Husband and Wife lived a comfortable lifestyle despite Wife's
only employment as a business administrator and Husband's only
reported source of income being social security retirement bene-
fits. They owned residences in Wichita and Phoenix; farmland; an
extensive art collection including paintings, sculptures, vases, and
wine glasses; memberships in Exclusive Resorts; two Mercedes
and a Lexus.
On October 31, 2017, Intervenors filed a lawsuit (civil action)
against Husband, Wife, and various entities that Husband and
Wife owned, alleging that Wife stole over $6 million from Inter-
venors during her time of employment. The pleadings in the civil
action alleged that Husband conspired with Wife to embezzle the
funds from Intervenors and that Husband aided and abetted Wife
in the embezzlement. The pleadings also alleged that Husband and
VOL. 63 COURT OF APPEALS OF KANSAS 511
Martin v. Mid-Kansas Wound Specialists, P.A.
Wife used the embezzled funds to maintain an extravagant life-
style they could not otherwise afford, and they used the embezzled
funds to support their businesses and acquire real estate and other
assets.
After Intervenors had filed their civil action against Husband
and Wife, Husband filed for divorce from Wife. Wife did not re-
spond in either case. On July 27, 2018, the district court awarded
Intervenors a default judgment against Wife in the civil action for
$6,265,221.06 in actual damages and $4,859,823.96 in punitive
damages, plus interest and costs. Intervenors have obtained no
judgment against Husband in the civil action as of the time of this
appeal. On August 8, 2018, the district court granted a default de-
cree of divorce between Husband and Wife that reserved the issue
of property division for the future. No division of property be-
tween Husband and Wife has been ordered in the divorce case as
of the time of this appeal.
Pretrial motions and proceedings
After obtaining the default judgment against Wife, Interve-
nors moved in the civil action to seize, store, and dispose of certain
personal property belonging to Wife. In response, Husband argued
that the pending divorce prohibited Intervenors from executing
against any marital property until after the court presiding over the
divorce divided the property. During a hearing on the motions in
the civil action, Husband argued extensively that issues about
property had to be taken up in the divorce case, which had exclu-
sive jurisdiction over the marital estate. On October 19, 2018, the
district court in the civil action found that it lacked jurisdiction to
grant the relief that Intervenors had requested, and it denied Inter-
venors' motion without prejudice.
In the divorce case, Husband moved for summary judgment
on Intervenors' claims to any marital property. Husband argued
that Intervenors could not assert an equitable claim against the
marital estate because they only obtained a money judgment
against Wife in the civil action, they did not have a civil judgment
against Husband, and caselaw prohibited execution against the
marital estate during a pending divorce. After hearing arguments
of counsel, the district court denied summary judgment and found
512 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
that Husband was judicially estopped from contesting Intervenors'
claims in the divorce case because it conflicted with the position
he had argued in the civil action.
In a trial memorandum filed in the divorce case, Intervenors
claimed the following marital property was subject to a construc-
tive trust or equitable lien in favor of Intervenors because the pur-
chase of the property could be traced to embezzled funds:
• Items of art such as paintings, sculptures, vases, and wine
glasses;
• Membership interest in Exclusive Resorts;
• Real estate such as the Gatewood residence, Arizona res-
idence, and farmland;
• Fidelity brokerage account;
• Farm implement; and
• Life insurance policies.
Husband filed a trial memorandum objecting to Intervenors'
claims for a constructive trust and equitable liens asserting, among
other arguments, that the Kansas Supreme Court's decision in In
re Marriage of Smith, 241 Kan. 249, 737 P.2d 469 (1987), prohib-
its creditors from executing on property in a marital estate based
on a judgment obtained against one spouse during a divorce action
until a determination is made on how the property should be di-
vided in the divorce. Husband also asserted that Wife had reim-
bursed Intervenors over $2 million and specifically identified the
reimbursement checks to embezzled funds. As a result, Husband
argued that liens should not attach to property traced to embezzled
funds after Wife had repaid the specific debts.
The bench trial
The divorce case proceeded to a bench trial on April 8, 2021.
At the beginning of the trial, Intervenors' counsel introduced, and
the district court admitted, almost 50 exhibits tracing the acquisi-
tion of specific assets in the marital estate to funds embezzled by
Wife. Likewise, Husband's counsel introduced, and the district
court admitted, Exhibits A through D consisting of Wife's reim-
bursement checks purportedly showing how Wife matched each
reimbursement check with funds she had stolen from Intervenors.
VOL. 63 COURT OF APPEALS OF KANSAS 513
Martin v. Mid-Kansas Wound Specialists, P.A.
The exhibits showed that in 2016 Wife had secretly repaid
$1,856,803.34 of the money she had stolen from Intervenors be-
fore the theft was discovered. Wife repaid another $149,167.16 in
July 2017 after the theft was discovered. The parties agreed they
did not need to address each exhibit at trial because the facts on
the tracing of assets to embezzled funds were not in dispute—only
the legal effect of the reimbursement payments was being con-
tested in the trial.
Only two witnesses testified at the trial. Intervenors called
Tracey Reed, a legal assistant for their counsel's law firm. Reed
testified that she identified and traced the specific instances and
amounts of Wife's thefts and partial repayments. Reed testified
that after she traced the stolen and repaid funds, she was instructed
to apply the repayments chronologically starting with the earliest
known thefts in 2006. This method of repayment led to Wife's debt
being repaid for the amounts she stole in or before 2009, with all
debts from 2010 and after still outstanding.
Husband called Jeffrey Quirin, Ph.D., a professor of account-
ing, as a witness. Quirin testified that when Wife deposited her
reimbursement checks, she wrote on the memo lines a check num-
ber for an earlier check that she had used to steal Intervenors'
funds. Wife also matched her repayment amounts to the exact
amount taken in each check referenced in the repayment checks'
memo line. Using this "specific identification" method of repay-
ment, Quirin testified that Intervenors had been fully reimbursed
for the embezzled funds used to purchase the artwork and items at
the Arizona property, and they had been partially reimbursed for
the embezzled funds used to purchase some of the other property
subject to Intervenors' claimed equitable liens. But Quirin also tes-
tified that his opinion was not based on Kansas law, he did not
know how Kansas law would treat the facts, and he would not
challenge how the court ruled on the matter.
The district court's decision
On March 15, 2022, the district court filed a 22-page memo-
randum decision ruling in Intervenors' favor. In broad terms, the
district court reasserted its summary judgment ruling that Hus-
band was judicially estopped from contesting Intervenors' claims
514 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
asserting a constructive trust and equitable liens against specific
assets traced to the stolen funds, reasoning that Husband's argu-
ments in the divorce case conflicted with the position he had ar-
gued in the civil action. Alternatively, the district court ruled on
the merits of Intervenors' claims. The district court denied Inter-
venors' request for an equitable lien on farmland in the marital es-
tate. But the district court granted Intervenors' request for equita-
ble liens against the remaining assets they had traced to funds em-
bezzled by Wife. The district court stated: "The Court's rulings
above are predicated on the notion that assets purchased with sto-
len money are not properly part of the marital estate." Finally, the
district court found that Intervenors could apply Wife's repay-
ments as they saw fit and the general rule allowing a debtor to
apply payments to specific debts did not affect Intervenors' equi-
table liens on specific assets traced to stolen funds.
On May 25, 2022, the district court issued its "Judgment Im-
posing Equitable Lien on Specific Assets." The judgment reaf-
firmed the district court's memorandum decision imposing an eq-
uitable lien in favor of Intervenors on certain property "thereby
removing such property or the portion subject to an equitable lien
from the marital estate." The judgment listed the assets to which
an equitable lien attached including the principal and interest val-
ues of the debt associated with each asset. It authorized Interve-
nors to execute on the property subject to their liens pending an
appeal, except for the Gatewood residence and the life insurance
policies, but directed that the net proceeds of any sale must be de-
posited with the clerk of the district court. Our record does not
reflect whether any property has been sold pending this appeal.
The district court directed entry of judgment under K.S.A. 60-
254(b), and Husband timely appealed.
On appeal, Husband claims the district court erred in finding
he was judicially estopped from contesting Intervenors' claims as-
serting a constructive trust and equitable liens against specific as-
sets traced to stolen funds. Husband also argues that the district
court's order granting Intervenors equitable liens against property
in the marital estate "directly contravenes Kansas Supreme Court
precedent, disregards the statutory definition of marital property,
exceeds the divorce court's equitable authority, and erroneously
VOL. 63 COURT OF APPEALS OF KANSAS 515
Martin v. Mid-Kansas Wound Specialists, P.A.
substitutes equitable relief for execution." Finally, Husband ar-
gues that if it was proper for the district court to grant equitable
liens against property traced to embezzled funds, the liens should
not have been granted against property traced to embezzled funds
that Wife had reimbursed. We will address each issue in turn.
Husband does not challenge in this appeal any findings made
by the district court tracing embezzled funds to specific assets in
the marital estate and the principal and interest values of the debt
associated with each asset. An issue not briefed is considered
waived or abandoned. Cook v. Gillespie, 285 Kan. 748, 758, 176
P.3d 144 (2008).
DISTRICT COURT'S RULING APPLYING JUDICIAL ESTOPPEL
To begin, we will address whether the district court erred in
finding that Husband was judicially estopped from contesting In-
tervenors' claims asserting a constructive trust and equitable liens
against specific assets traced to the stolen funds, based on the dis-
trict court's reasoning that Husband's arguments in the divorce
case conflicted with the position he had argued in the civil action.
Husband argues on appeal that the harsh remedy of judicial estop-
pel was inappropriate, given that his arguments in the two cases
remained consistent, did not mislead the district court, and af-
forded Husband no unfair advantage. Intervenors respond that
Husband should be estopped from changing his earlier position
taken in the civil action.
"Judicial estoppel precludes a party from taking one position
in a case to induce the court to act in a certain way and then taking
a contrary or conflicting position in a related proceeding involving
the same opposing parties." Estate of Belden v. Brown County, 46
Kan. App. 2d 247, 262, 261 P.3d 943 (2011). A court may apply
judicial estoppel to preserve "'the essential integrity of the judicial
process.'" 46 Kan. App. 2d at 263. Kansas courts have not estab-
lished a definitive standard of review for judicial estoppel, but this
court has acknowledged with approval that most federal courts,
including the Tenth Circuit, apply an abuse of discretion standard.
Midwest Crane and Rigging v. Schneider, No. 113,725, 2016 WL
1391805, at *10 (Kan. App. 2016) (unpublished opinion). A judi-
cial action constitutes an abuse of discretion if (1) it is arbitrary,
516 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
fanciful, or unreasonable; (2) it is based on an error of law; or (3)
it is based on an error of fact. Biglow v. Eidenberg, 308 Kan. 873,
893, 424 P.3d 515 (2018).
Intervenors at first moved in the civil action to seize, store,
and dispose of certain personal property belonging to Wife. Hus-
band argued—correctly—that the holding in Smith required that
any claims to marital property must be adjudicated in the divorce
case which had exclusive jurisdiction over the marital estate. The
district court in the civil action agreed with Husband and found
that it lacked jurisdiction to grant the relief that Intervenors had
requested, and it denied Intervenors' motion without prejudice.
But later in the divorce case, the district court ruled that Husband
was judicially estopped from contesting Intervenors' claims as-
serting a constructive trust and equitable liens against specific as-
sets traced to the stolen funds, reasoning that Husband's arguments
in the divorce case conflicted with the position he had argued in
the civil action.
Husband now claims that judicial estoppel is inappropriate be-
cause he did not concede to any of Intervenors' claims in the civil
action, and instead only argued that the issue must be taken up in
the divorce case. We agree. The record shows that Husband did
not concede to any of Intervenors' claims to the property in the
civil case; he merely contended that Intervenors' claims should be
argued in a different forum. Husband's arguments in the civil ac-
tion did not extend further than that. Nothing about Husband's po-
sition in the civil action precluded him from arguing against the
merits of Intervenors' claims in the divorce case. Indeed, the rec-
ord shows that Husband raised nearly identical arguments in both
cases. The district court erred to whatever extent it relied on judi-
cial estoppel in ruling for Intervenors in the divorce case.
But we see this error as a nonissue. Even though the district
court erred in applying judicial estoppel, the error did not matter
because the district court still addressed the merits of the parties'
claims and objections. As the district court stated in its memoran-
dum decision: "In any event, even if [Husband] was not judicially
estopped from objecting to the Intervenor's claim of an equitable
lien on certain assets of the marital estate, the objection is without
merit." The district court proceeded to address whether Interve-
VOL. 63 COURT OF APPEALS OF KANSAS 517
Martin v. Mid-Kansas Wound Specialists, P.A.
nors' claims for equitable liens against specific assets in the mari-
tal estate were barred by Smith and how to account for Wife's re-
imbursement checks. Ultimately, the district court resolved the
parties' claims on those issues on the merits. Thus, the district
court's ruling on judicial estoppel was not reversible error.
DID THE DISTRICT COURT ERR IN FINDING THAT IT COULD GRANT
INTERVENORS' REQUEST FOR EQUITABLE LIENS AGAINST SPECIFIC
ASSETS IN THE MARITAL ESTATE?
Husband's main argument on appeal is that the district court's
order granting Intervenors equitable liens against property in the
marital estate "directly contravenes Kansas Supreme Court prece-
dent, disregards the statutory definition of marital property, ex-
ceeds the divorce court's equitable authority, and erroneously sub-
stitutes equitable relief for execution." More specifically, Hus-
band argues that Smith directly precludes the district court from
granting an equitable lien on the property. Husband also argues
there is no exception to K.S.A. 2022 Supp. 23-2801's mandate that
all property owned by married persons or acquired by either
spouse after marriage becomes marital property at the time of the
commencement of an action for divorce and remains in the marital
estate until it is divided between the spouses by decree. Husband
asserts that while the district court has broad discretion to equita-
bly divide property between spouses in a divorce action, that eq-
uitable discretion does not extend to the determination of what as-
sets comprise the marital estate. Finally, Husband argues that it
was error to grant Intervenors a postjudgment equitable remedy to
collect its judgment when Intervenors had only elected the legal
remedy of a money judgment against Wife.
Intervenors assert that the divorce court's exclusive jurisdic-
tion over the marital estate includes the power to determine a third
party's interest in specific assets in the marital estate. Intervenors
distinguish Smith and explain why that case does not control the
outcome of this appeal. Intervenors also explain why they can as-
sert a constructive trust and equitable liens against specific assets
traced to stolen funds even though they only have a money judg-
ment against Wife.
518 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
The parties agree that resolution of this issue involves the in-
terpretation of statutes and the application of law to undisputed
facts. Statutory interpretation presents a question of law over
which appellate courts have unlimited review. Naheim v. City of
Topeka, 309 Kan. 145, 149, 432 P.3d 647 (2019). The application
of law to undisputed facts is subject to unlimited review. Univer-
sity of Kansas Hosp. Auth. v. Board of Wabaunsee County
Comm'rs, 299 Kan. 942, 951, 327 P.3d 430 (2014).
In re Marriage of Smith
Husband first argues that Smith directly precludes the district
court from granting Intervenors' request for an equitable lien
against property of the marital estate before the divorce court had
divided the property between Husband and Wife. Smith involved
facts like those here. In Smith, the husband filed for divorce and
while the divorce case was pending, the husband's employer dis-
covered that he had wrongfully converted corporate funds during
his employment. The employer sued the husband for embezzle-
ment, fraud, and conversion, and obtained a money judgment
against him while the divorce was still pending. The employer in-
tervened in the divorce case and sought to collect its judgment
against the husband by executing on the property in the marital
estate. The district court ruled in the employer's favor and found
that the employer's interest in the property took priority over any
claim that the wife had to the marital estate. On appeal, this court
reversed the district court's judgment. 241 Kan. at 249-50.
The Kansas Supreme Court took the case and considered the
issue of "whether the Court of Appeals erred in holding that a
creditor who obtains a judgment against one spouse during the
pendency of a divorce action is precluded from collecting its judg-
ment by executing against or claiming a lien on property owned
individually or jointly by the debtor spouse." 241 Kan. at 250-51.
The Kansas Supreme Court affirmed this court's ruling with the
following holding:
"We hold that the filing of a petition for divorce creates a species of com-
mon or co-ownership and a vested interest in one spouse in all the property indi-
vidually or jointly owned by the other, the extent of which is to be determined
pursuant to K.S.A. 1986 Supp. 60-1610(b). Until that determination is made by
VOL. 63 COURT OF APPEALS OF KANSAS 519
Martin v. Mid-Kansas Wound Specialists, P.A.
the trial court, the property is not subject to a lien or execution based on a judg-
ment obtained against one spouse during the pendency of the divorce action."
(Emphasis added.) 241 Kan at 256.
At first glance, the holding in Smith indeed seems to support
Husband's argument here that the district court could not grant In-
tervenors' request for an equitable lien against any property in the
marital estate until the divorce court divided the property between
Husband and Wife. But as Intervenors explain, one important dis-
tinction between Smith and the case here is that the creditor in
Smith made no claim tracing specific assets of the marital estate
to the stolen funds. As the Smith court stated: "We note that there
is no evidence in the present case to indicate that the property ap-
pellee seeks to acquire is the product of the assets that [the hus-
band] converted, or that [the wife] knew of the conversion." 241
Kan. at 254. Here, it has been determined by the district court—
and not challenged on appeal—that the property subject to Inter-
venors' claimed equitable liens is the product of the assets that
Wife converted.
In Smith, the husband's employer-creditor had a money judg-
ment against husband and was trying to collect that judgment by
executing on property of the marital estate while the divorce was
pending and before the court had divided the property between the
husband and the wife. The employer-creditor made no claim trac-
ing specific assets of the marital estate to funds the husband had
embezzled. Smith plainly prohibits that kind of interference in
marital property while a divorce is pending. But that is not what
is happening here. Intervenors have established a constructive
trust tracing specifically identified assets purchased by Husband
and Wife with funds Wife embezzled from Intervenors. Interve-
nors assert that the constructive trust against specific assets gives
them an interest in those assets that is superior to the interest held
by either spouse.
Intervenors point to an even more important reason why the
holding in Smith does not apply here. Smith holds that until marital
property is divided between the spouses in a divorce, the property
is not subject to a lien or execution "based upon a judgment ob-
tained against one spouse during the pendency of the divorce ac-
tion." 241 Kan. at 256. But Intervenors' constructive trust against
assets traced to stolen funds is not based on their judgment against
520 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
Wife in the civil action. Intervenors acknowledge in their brief that
they cannot execute on their judgment against Wife in the civil
action by trying to attach a lien against undivided property in the
marital estate. But that is not what they are doing here. Intervenors
have pursued the constructive trust and equitable lien theory only
against Husband as part of the equitable remedy they are seeking
in the divorce case.
The district court's memorandum decision found that "[t]he
Smith decision stands for the proposition that assets of the mar-
riage that are the by-product of fraud are not part of the marital
estate and are subject to the claims of the party against whom the
fraud was committed." On appeal, Husband asserts this statement
is incorrect, and we agree in part. As we will explain, the statutory
definition of marital property includes all property owned by mar-
ried persons or acquired by either spouse after marriage. That in-
cludes the property Husband and Wife purchased with the money
Wife embezzled from Intervenors. But although this property is
part of the marital estate—and the district court erred in finding it
was not—the court's exclusive jurisdiction over the marital estate
includes not only the power to equitably divide the marital prop-
erty between the spouses, it also includes the power to determine
a third party's interest in the marital property and to what extent
that interest may be superior to the interest held by either spouse.
Still, Husband insists that the district court cannot grant a lien
on any marital property in a pending divorce until the court first
divides the property between the spouses, and he emphasizes one
sentence from Smith to support his argument. The Smith court, in
discussing the rights of third-party creditors with potential claims
against marital property in a pending divorce, observed that "[i]f
the third party could prove that the property decreed to the non-
debtor spouse was the product of fraud against it, it would have a
claim to that property." (Emphasis added.) 241 Kan. at 255. Hus-
band argues in his brief that by using the term "decreed" in this
sentence, the Smith court "contemplat[ed] that even assets of the
marriage that a third party claims or has proved to be by-products
of fraud are part of the marital estate and subject to division."
As we said, the assets Husband and Wife purchased with sto-
len money are part of the marital estate. But that fact does not
VOL. 63 COURT OF APPEALS OF KANSAS 521
Martin v. Mid-Kansas Wound Specialists, P.A.
necessarily mean that the property must be divided between Hus-
band and Wife before the district court can determine a third par-
ty's claimed interest in the property. Here, the district court traced
assets in the marital estate to money that Wife embezzled from
Intervenors—and those findings are not challenged on appeal. As
we will explain, the district court had the authority and did not err
in granting Intervenors' request for equitable liens against those
assets.
A careful reading of Smith reveals that it is distinguishable
and does not control the outcome of this appeal. We disagree with
Husband's fundamental assertion that the district court's order
granting Intervenors equitable liens against property in the marital
estate directly contravenes Kansas Supreme Court precedent in
Smith.
Statutory definition of marital property
Husband next argues that the district court's judgment for In-
tervenors disregards the statutory definition of marital property.
K.S.A. 2022 Supp. 23-2801 states:
"(a) All property owned by married persons, . . . or acquired by either spouse
after marriage, and whether held individually or by the spouses in some form of
co-ownership, such as joint tenancy or tenancy in common, shall become marital
property at the time of commencement by one spouse against the other of an
action in which a final decree is entered for divorce, separate maintenance, or
annulment.
"(b) Each spouse has a common ownership in marital property which vests
at the time of commencement of such action, the extent of the vested interest to
be determined and finalized by the court, pursuant to K.S.A. 2022 Supp. 23-
2802, and amendments thereto."
The predecessor statute to K.S.A. 2022 Supp. 23-2801 was
K.S.A. 23-201(b) which also defined marital property as all prop-
erty owned by married persons or acquired by either spouse after
the marriage. K.S.A. 2022 Supp. 23-2802(a) sets forth a procedure
for the division of marital property between spouses by decree. In
making the division of property, the district court shall consider
several factors in the statute. K.S.A. 2022 Supp. 23-2802(c); see
also K.S.A. 60-1610(b)(1) (predecessor statute which sets forth
the same procedure for the division of marital property between
the spouses by decree and factors for the court to consider).
522 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
Husband asserts there is no exception to K.S.A. 2022 Supp.
23-2801's mandate that all property owned by married persons or
acquired by either spouse after marriage becomes marital property
when a divorce commences and remains in the marital estate until
it is divided between the spouses by decree. Intervenors
acknowledge the statutory definition of marital property and agree
that a divorce court has exclusive jurisdiction over the property in
a marital estate. But Intervenors assert the divorce court's exclu-
sive jurisdiction over the marital estate includes the power to de-
termine a third party's interest in marital property and nothing in
the statutes prohibits this procedure.
The most fundamental rule of statutory construction is that the
intent of the Legislature governs if that intent can be ascertained.
Montgomery v. Saleh, 311 Kan. 649, 654, 466 P.3d 902 (2020).
An appellate court must first attempt to ascertain legislative intent
through the statutory language enacted, giving common words
their ordinary meanings. 311 Kan. at 654. When a statute is plain
and unambiguous, an appellate court should not speculate about
the legislative intent behind that clear language, and it should re-
frain from reading something into the statute that is not readily
found in its words. 311 Kan. at 654-55. Where there is no ambi-
guity, the court need not resort to statutory construction. Only if
the statute's language or text is unclear or ambiguous does the
court use canons of construction or legislative history to construe
the Legislature's intent. In re M.M., 312 Kan. 872, 874, 482 P.3d
583 (2021).
It is well settled law in Kansas that upon the filing of a petition
for divorce each spouse becomes the owner of a vested, but unde-
termined, interest in all the property individually or jointly held
by them. Smith, 241 Kan. at 251; Cady v. Cady, 224 Kan. 339,
344, 581 P.2d 358 (1978). Under K.S.A. 2022 Supp. 23-2801,
marital property includes all property owned by married persons
or acquired by either spouse after the marriage. The parties do not
dispute this definition, even though the district court found other-
wise when it stated that "assets purchased with stolen money are
not properly part of the marital estate." As we said, this finding
was legally erroneous and contrary to the plain and unambiguous
language of K.S.A. 2022 Supp. 23-2801(a). See Nicholas v. Nich-
VOL. 63 COURT OF APPEALS OF KANSAS 523
Martin v. Mid-Kansas Wound Specialists, P.A.
olas, 277 Kan. 171, 177-84, 83 P.3d 214 (2004) (discussing mar-
ital property and holding that a spouse did not dispose of marital
property by changing the beneficiary on pay on death accounts,
transfer on death accounts, and life insurance policies).
Divorce court's power to determine third party's interest in mari-
tal property
While the parties agree on the meaning of marital property
and that a divorce court has exclusive jurisdiction over the prop-
erty in a marital estate, they disagree on the court's power to de-
termine a third party's claimed interest in marital property. Hus-
band asserts that all marital property must be divided between the
spouses by decree and that the court lacks the power to determine
a third party's claimed interest in the property. Intervenors assert
that the divorce court's exclusive jurisdiction over the marital es-
tate includes the power to determine a third party's claimed inter-
est in the property.
Intervenors cite two older Kansas Supreme Court cases to
support their argument. In Cadwell v. Cadwell, 162 Kan. 552, 178
P.2d 266 (1947), a wife filed for a divorce from her husband seek-
ing custody of their four-year-old son and also a division of real
and personal property. A third party, the wife's mother, petitioned
to intervene in the divorce, claiming that she had furnished the
husband and wife with sums of money and that she was the owner
of certain items of personal property in the marital estate and the
equitable owner of the real estate. The husband moved to strike
the petition to intervene, which the district court denied. On ap-
peal, the Kansas Supreme Court affirmed the district court's deci-
sion to allow the third party to intervene in the divorce case to
assert her claimed interest in the marital property. 162 Kan. at 555-
58.
In Breidenthal v. Breidenthal, 182 Kan. 23, 318 P.2d 981
(1957), a wife filed for divorce from her husband seeking child
custody, alimony, and property division. As part of the divorce
action, the wife joined as parties four members of a family part-
nership in which her husband allegedly owned a one-fifth interest,
and secured an order restraining the defendants from altering the
partnership interests until she could fully determine the value of
524 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
her husband's interest in the partnership. The district court sus-
tained a motion by the defendants other than the husband to dis-
miss the action and dissolve the restraining order as to them on the
ground that they could not be joined as parties in a divorce action.
On appeal, the Kansas Supreme Court reversed the district court's
order dismissing the action against the defendants other than the
husband and dissolving the restraining order as to them. 182 Kan.
at 33. While recognizing that the husband and wife are generally
the only proper parties to a divorce action, the Kansas Supreme
Court stated:
"However, the right of a wife to name as defendants third parties to whom the
husband has conveyed his property in fraud of her rights, or third parties having,
or claiming to have an interest in property involved in a divorce action, is uni-
versally accepted as the prevailing rule on the ground that the court, in the exer-
cise of its duty to determine a reasonable amount of alimony to be awarded to
the plaintiff, must determine whether the property is in fact owned by the hus-
band or by the third [party] defendant. [Citation omitted.]" (Emphasis added.)
182 Kan. at 28.
Breidenthal and Cadwell hold that third parties asserting an
interest in property of a marital estate can intervene or be joined
as parties in a divorce action. In this situation, the divorce court's
exclusive jurisdiction over the marital estate includes not only the
power to equitably divide the marital property between the
spouses, but it also includes the power to determine the third par-
ty's interest in the marital property and to what extent that interest
may be superior to the interest held by either spouse.
On appeal, Husband does not dispute that MKWS and ESPA
could intervene as third parties in the divorce case, consistent with
the rules of civil procedure. See K.S.A. 2022 Supp. 60-219;
K.S.A. 2022 Supp. 60-224. But Husband asserts that after MKWS
and ESPA intervened in the divorce case, the court had no power
to determine their interest in the marital property. Husband argues
that the divorce court only has the power to equitably divide the
marital property between the spouses and that the district court's
order granting Intervenors' request for equitable liens against spe-
cific assets in the marital estate traced to stolen funds "exceeds the
divorce court's equitable authority."
We disagree. K.S.A. 2022 Supp. 23-2801 is clear and unam-
biguous to the extent that it defines marital property, but it does
VOL. 63 COURT OF APPEALS OF KANSAS 525
Martin v. Mid-Kansas Wound Specialists, P.A.
not address the situation in which a third party intervenes in the
divorce case and claims an interest in the property. Likewise,
K.S.A. 2022 Supp. 23-2802 is clear and unambiguous in describ-
ing how marital property is divided between the spouses by a di-
vorce decree. But the divorce court's order granting Intervenors'
request for equitable liens against the marital property traced to
stolen funds is based on a constructive trust theory that is a remedy
separate and distinct from the statutes governing the division of
marital property between the spouses by decree. The divorce
court's power to determine all interests in marital property is nec-
essary for the court to properly perform its duties of equitably di-
viding the marital property.
There is no question the divorce court has the exclusive juris-
diction to resolve competing interests in marital property. The di-
vorce court's exclusive jurisdiction over the marital estate includes
not only the power to equitably divide the marital property be-
tween the spouses, but it also includes the power to determine a
third party's interest in the property. Stated another way, all prop-
erty owned by married persons or acquired by either spouse after
the marriage is marital property, but if there is a dispute involving
a third party's interest in the property and the interest held by either
spouse, it must be resolved by the divorce court. Nothing about
this process is contrary to the statutes defining marital property
and the procedure for dividing property by a divorce decree.
Election of remedies
Finally, Husband argues that it was error to grant Intervenors
a postjudgment equitable remedy to collect its judgment when In-
tervenors had only elected the legal remedy of a money judgment
against Wife. But as the district court found, Husband's argument
is premised on his misunderstanding of a constructive trust. A con-
structive trust "'is a remedy for unjust enrichment.'" Nelson v. Nel-
son, 288 Kan. 570, 579, 205 P.3d 715 (2009). "[T]he constructive
trust remedy is res specific; a constructive trust is essentially a
tracing remedy, allowing recovery of the specific asset or assets
taken from the plaintiff, any property substituted for it, and any
gain in its value." 288 Kan. at 580. "Where a person holding title
to property is subject to an equitable duty to convey it to another
526 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
on the ground that he or she would be unjustly enriched if permit-
ted to retain the property, a constructive trust arises." 288 Kan.
570, Syl. ¶ 7.
Husband cites Walsh v. Weber, No. 113,972, 2016 WL 4750102,
at *25 (Kan. App. 2016) (unpublished opinion), for the proposition that
a district court "may impose a personal money judgment or an equita-
ble remedy such as [a] constructive trust, but not both." See also Grif-
fith v. Stout Remodeling, Inc., 219 Kan. 408, 411-12, 548 P.2d 1238
(1976) (discussing doctrine of election of remedies as an application of
the law preventing a party from taking or occupying inconsistent posi-
tions). But as Intervenors point out, to any extent they needed to elect
remedies, it applied only to their claims against Wife. As we have al-
ready discussed, Intervenors' claimed constructive trust covering assets
traced to the stolen funds is not based on their judgment against Wife
in the civil action. Intervenors have pursued the constructive trust and
equitable lien theory only against Husband. The doctrine of elec-
tion of remedies does not apply here.
In sum, we disagree with Husband's fundamental assertion
that the district court's order granting Intervenors equitable liens
against property in the marital estate directly contravenes Kansas
Supreme Court precedent in Smith. The property purchased with
funds Wife embezzled from Intervenors is marital property, and
the district court erred in finding otherwise. But the divorce court's
exclusive jurisdiction over the marital estate includes not only the
power to equitably divide marital property between the spouses, it
also includes the power to determine a third party's interest in the
marital property and to what extent that interest may be superior
to the interest held by either spouse. Nothing about this process is
contrary to the statutes defining marital property and the proce-
dure for the district court to divide property between the spouses
by a divorce decree. Finally, the remedy of a constructive trust and
equitable liens against specific assets traced to the stolen funds did
not violate the doctrine of election of remedies.
Husband argues that we must reverse the district court's judg-
ment and remand with directions for the district court to equitably
divide the marital property between Husband and Wife before it
can grant Intervenors' request for any liens on the property. K.S.A.
2022 Supp. 23-2802 sets forth a procedure for the district court to
divide marital property between the spouses by a divorce decree,
VOL. 63 COURT OF APPEALS OF KANSAS 527
Martin v. Mid-Kansas Wound Specialists, P.A.
but it does not say the property must be divided by decree before
the district court can determine a third party's interest in the prop-
erty. In fact, Husband fails to explain how the district court could
equitably divide the property between the spouses without first
determining Intervenors' interest in the property. After all, it
would not be equitable for the district court to divide the marital
property between the spouses and then have Husband find out
later that much of the property awarded to him is subject to Inter-
venors' claims.
Instead, it seems like the district court took the better ap-
proach—it first determined Intervenors' interest in the marital
property so it will know to what extent the property is subject to
equitable liens before dividing the property between the spouses.
This procedure is consistent with K.S.A. 2022 Supp. 23-2802(c)
which provides that in making the division of property, the district
court shall consider many factors including "such other factors as
the court considers necessary to make a just and reasonable divi-
sion of property." Under the facts presented here, we conclude the
district court did not err in granting Intervenors' request for a con-
structive trust and equitable liens against specific assets traced to
funds Wife embezzled from Intervenors.
SHOULD THE LIENS HAVE BEEN GRANTED AGAINST PROPERTY
TIED TO EMBEZZLED FUNDS THAT WIFE REIMBURSED?
Husband next claims that the district court erred in allowing
Intervenors to apply Wife's repayments as they saw fit rather than
as Wife directed. Husband asserts that under the general rule, vol-
untary payments made by a debtor to a creditor must be applied as
the debtor directs, and even embezzlers are permitted to direct
how their voluntary payments are to be applied. Husband argues
that Wife's repayments were voluntary and that she communicated
her directions on how the repayments were to be applied. Thus,
Husband argues that if it were proper for the district court to grant
equitable liens against property traced to embezzled funds, the
"liens should not have been granted against property tied to em-
bezzlement checks that were specifically reimbursed."
Intervenors argue that the general rule allowing a debtor to
direct how voluntary payments to a creditor should be allocated
528 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
does not apply in cases of theft. And even if the general rule did
apply here, Intervenors argue that Wife's repayments were not vol-
untary; Wife failed to effectively communicate how her reim-
bursement checks should be applied when she secretly made the
payments; Wife repaid the wrong creditor and thus did not
properly direct how the repayments should be applied; and Wife
did not pay any interest on her debts which was necessary to sat-
isfy the debts.
Although Husband designated an expert witness to testify
about how Wife's repayments should be applied, the witness con-
ceded his opinion was not based on Kansas law, and he did not
know how Kansas law would treat the facts involving Wife's re-
payments of some of the embezzled funds. The parties agreed the
facts were not in dispute and only the legal effect of the reimburse-
ment payments was being contested at trial. The application of law
to undisputed facts is subject to unlimited review. University of
Kansas Hosp. Auth., 299 Kan. at 951.
We will briefly review the relevant facts. In 2016, before
Wife's embezzlement was discovered, she deposited into ESPA's
account $1,856,803.34 that she took from MKWS. Wife also de-
posited into MKWS's account another $149,167.16 after her theft
was discovered. On the various checks she deposited, she wrote a
number on the memo line corresponding to the check numbers of
various checks that she used to embezzle the money in the first
place. The repayment checks were also written in the exact
amounts as the checks referenced in the memo line. After discov-
ering Wife's scheme, Intervenors applied her repayments chrono-
logically starting with the earliest known debts instead of to the
specific debts referenced in the memo lines of the reimbursement
checks.
Based on these undisputed facts, the district court found that
the general rule allowing a debtor to direct how voluntary pay-
ments should be allocated—which the district court called the
"debtor-creditor rule"—did not apply in cases of theft. Alterna-
tively, the district court found that the general rule would not ap-
ply here because Wife's repayments were not voluntary; Wife
failed to effectively communicate how her reimbursement checks
should be applied when she secretly made the payments; and Wife
repaid the wrong creditor with her reimbursement checks.
VOL. 63 COURT OF APPEALS OF KANSAS 529
Martin v. Mid-Kansas Wound Specialists, P.A.
"At common law, the general rule is that a debtor has a right to make the
appropriation of payments to particular obligations, but if the debtor fails to do
so, the right passes to the creditor, and if both fail to do so, the court will make
the application. No third person may control or compel an appropriation different
from that agreed on or made by the debtor or creditor. The rules relating to the
application of payments are used only if the parties have not reached an agree-
ment concerning where the payments are to be applied.
"Once the application of a payment is made to a particular obligation by
either the debtor or the creditor, it is final and conclusive. However, the general
rules regarding the application of the payments will not be followed when, from
the circumstances surrounding the case, it appears that their application would
be inequitable or unjust." 60 Am. Jur. 2d, Payment § 55.
Kansas courts recognize the common law rule that a debtor
who owes a creditor multiple debts may direct how repayments
should be applied; otherwise, the creditor may elect to apply any
payment as the creditor chooses. See, e.g., Ram Co. v. Estate of
Kobbeman, 236 Kan. 751, Syl. ¶ 1, 696 P.2d 936 (1985) ("Volun-
tary payments made by a debtor shall be applied as the debtor di-
rects, unless the money for the payment is security for the credi-
tor's loan. Then the money belongs to the creditor to apply as it
chooses."); Aetna Casualty and Surety Co. v. Hepler State Bank,
6 Kan. App. 2d 543, Syl. ¶ 13, 630 P.2d 721 (1981) ("If a debtor
owes a creditor more than one debt, in the absence of a direction
from the debtor to the creditor as to how a payment is to be ap-
plied, the creditor may elect to apply it to any debt he chooses.").
Turning first to whether the general rule applies in theft cases,
we find it to be somewhat of a stretch to classify the relationship
between Wife and Intervenors as a debtor/creditor relationship.
Wife did not borrow money from Intervenors—she stole it. Equity
does not favor a claim by either Husband or Wife that Wife should
be able to direct how her repayments should be applied. But we
note this court has discussed and applied the general rule that a
debtor can direct how payments should be applied in two cases
involving an employee's embezzlement of company funds. Home
Life Ins. Co. v. Clay, 13 Kan. App. 2d 435, 440-42, 773 P.2d 666
(1989); Aetna, 6 Kan. App. 2d at 554-55. The cases both involved
a bank that had cashed fraudulent checks, and the issue was
whether the bank's liability for the loss could be offset by a partial
recovery of the stolen funds. Home Life Ins. Co., 13 Kan. App. 2d
at 440-42; Aetna, 6 Kan. App. 2d at 554-55.
530 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
Assuming without deciding that the general rule allowing a
debtor to direct how voluntary payments to a creditor should be
allocated can apply in cases involving theft, we agree with the dis-
trict court that the rule does not apply here to Wife's repayments
to Intervenors. To begin, the district court found that the general
rule would not apply here because Wife's repayments were not
voluntary, but on this point we disagree. Involuntary payments are
excluded from the general rule allowing the debtor to direct pay-
ments to a certain debt. Ram Co., 236 Kan. at 756; In re Hart's
Transfer & Storage, Inc., 6 Kan. App. 2d 579, 582, 631 P.2d 258
(1981). Kansas courts have typically defined involuntary pay-
ments as those compelled by court order or other legal mecha-
nisms. See State Bank of Downs v. Moss, 203 Kan. 447, 455-56,
454 P.2d 554 (1969). The district court found that Wife's repay-
ments were involuntary because she was compelled to make them
to avoid detection of her theft in a company audit, but there is no
authority to support that position. Thus, we find that Wife's repay-
ments to Intervenors, while possibly motivated by an effort to con-
ceal or reduce her culpability, were voluntarily made.
Although Wife's payments were voluntary, she failed to effec-
tively communicate how her reimbursement checks should be ap-
plied when she secretly made the payments without notifying In-
tervenors. Under the general rule, the debtor's direction to the
creditor on how a payment should be applied must be made at or
before payment. 60 Am. Jur. 2d, Payment § 59. Until payment is
made, the money is the debtor's property which the debtor is free
to apply as he or she sees fit. Ram Co., 236 Kan. at 756. But once
payment is made, the money belongs to the creditor and the debtor
no longer has authority to direct payment. 60 Am. Jur. 2d, Pay-
ment § 59.
This case presents a unique set of facts where Wife secretly
made her payments without Intervenors having any knowledge of
it at that time. On one hand, Wife did direct her repayments when
they were made by written notations to specific checks, but on the
other hand, she did not communicate those directions—or the pay-
ments themselves—to Intervenors. Because Wife did not make In-
tervenors aware that she was making payments, Wife essentially
communicated her directions only to herself when she deposited
VOL. 63 COURT OF APPEALS OF KANSAS 531
Martin v. Mid-Kansas Wound Specialists, P.A.
the checks and lost ownership of that money. So by the time In-
tervenors discovered Wife's repayments and her uncommunicated
directions, the money was already Intervenors' property to apply
as they saw fit.
Finally, we agree with the district court that it matters that
Wife repaid the wrong creditor with her reimbursement checks.
Before Wife's embezzlement was discovered, she deposited into
ESPA's account $1,856,803.34 that she took from MKWS. As a
result of this mix up, Wife failed to adequately communicate her
directions how the repayments should be applied to the appropri-
ate debts.
For these reasons, the general rule allowing a debtor to direct
how voluntary payments to a creditor should be allocated does not
apply to Wife's repayments to Intervenors. The district court did
not err in allowing Intervenors to apply Wife's repayments as they
saw fit. As a result, Wife's reimbursement checks did not affect
Intervenors' equitable lien remedy.
CONCLUSION AND REMAND ORDER
This is a divorce case. The filing of the divorce petition be-
tween Husband and Wife created a marital estate, and the divorce
court has exclusive jurisdiction over the property in the marital
estate. All property owned by Husband and Wife or acquired by
either of them after the marriage is marital property, including the
property purchased with money Wife embezzled from Interve-
nors. K.S.A. 2022 Supp. 23-2801. The divorce court's exclusive
jurisdiction over the marital estate includes not only the power to
equitably divide the marital property between the spouses, but it
also includes the power to determine Intervenors' interest in the
property. The district court erred when it found that the assets pur-
chased with stolen money are not part of the marital estate. But it
did not err in granting Intervenors' request for a constructive trust
and equitable liens against specific assets traced to funds Wife
embezzled from Intervenors.
The district court's judgment granting Intervenors' request for
equitable liens against specific assets traced to funds Wife embez-
zled from Intervenors is affirmed. The district court's judgment
"removing" this property from the marital estate is reversed. All
532 COURT OF APPEALS OF KANSAS VOL. 63
Martin v. Mid-Kansas Wound Specialists, P.A.
marital property when the divorce action commenced must be di-
vided between the spouses by decree under K.S.A. 2022 Supp. 23-
2802. Our record reflects that the net proceeds of any marital prop-
erty that may have been sold has been paid to the clerk of the dis-
trict court. These proceeds are also marital property and must be
divided. Any marital property awarded to Husband in the property
division that the district court has traced to stolen funds is subject
to Intervenors' equitable liens in the amounts determined by the
district court—and not challenged on appeal. After the marital
property is divided, Intervenors may execute on their money judg-
ment against Wife. Smith, 241 Kan. at 256. The case is remanded
for further proceedings consistent with this opinion.
Affirmed in part, reversed in part, and remanded with direc-
tions.
VOL. 63 COURT OF APPEALS OF KANSAS 533
In re Parentage of W.L. and G.L.
___
No. 125,304
In the Matter of the Parentage of W.L. and G.L.
___
SYLLABUS BY THE COURT
1. JUDGMENTS—Judgment Rendered with Jurisdiction and Subject Matter
Is Final and Conclusive—Exceptions. A judgment rendered by a court with
jurisdiction of the parties and the subject matter is final and conclusive un-
less it is later modified on appeal or by subsequent legislation. Such a judg-
ment cannot legally be collaterally attacked.
2. PARENT AND CHILD—Kansas Parentage Act— Judgment under Act Is
Determinative for All Purposes. The judgment of the court determining par-
entage under the Kansas Parentage Act, K.S.A. 2022 Supp. 23-2201 et seq.,
is "determinative for all purposes" when all necessary parties have been
joined. K.S.A. 2022 Supp. 23-2215(a). When a necessary party has not been
joined, such a judgment is not divested of jurisdiction but has only the force
and effect of a finding of fact necessary to determine a party's duty of sup-
port.
Appeal from Crawford District Court; GUNNAR A. SUNDBY, judge. Opinion
filed June 16, 2023. Affirmed.
Allison G. Kort, of Kort Law Firm LLC, of Kansas City, Missouri, for ap-
pellant C.L.
Valerie L. Moore, of Lenexa, for appellee M.S., and Sara S. Beezley, of
Girard, for appellee E.L.
Before GARDNER, P.J., HILL and PICKERING, JJ.
GARDNER, J.: This case asks whether a person may claim a
presumption of parentage after a district court has tried and en-
tered judgment on another person's presumption of parentage for
the same child. E.L. was in a same-sex relationship with M.S.
when twins conceived through artificial insemination were born
to E.L. After that relationship ended and the twins were three years
old, the biological mother entered a same-sex marriage with C.L.
They have since divorced. Both of E.L.'s ex-partners claimed to
be the parent of the twins, but at different times. M.S. petitioned
for parentage and the Crawford County District Court heard evi-
dence, including from C.L., and entered a judgment finding M.S.
the legal parent of the twins. C.L. first asserted her parentage after
534 COURT OF APPEALS OF KANSAS VOL. 63
In re Parentage of W.L. and G.L.
that order was entered. So when M.S. moved to dismiss C.L.'s par-
entage petition for failure to state a claim for relief, the district
court granted that motion. After careful review, we affirm, finding
C.L.'s parentage petition an improper collateral attack on the judg-
ment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2012, E.L. and M.S. began a same-sex relationship.
In May 2014, E.L. became pregnant with twin boys—W.L. and
G.L.—through artificial insemination. E.L. gave birth to the twins
in December 2014. The two never had a coparenting agreement.
They lived in Kansas City until they permanently separated in Jan-
uary 2016. After the separation the parties moved separately to
Pittsburg.
In January 2017, E.L. and C.L., a woman, began dating, just
after the twins' second birthday. In the summer of 2017, E.L. and
C.L. became engaged and moved in together.
M.S. Files a Parentage Action
In October 2017, M.S. filed a Petition for Determination of
Parentage in Crawford County District Court, asserting parentage
of the twins under K.S.A. 2017 Supp. 23-2208(a)(4)'s presump-
tion of maternity. She argued that she had stood in the role of a
parent since the boys' conception, and that "it would be in the best
interest of the minor children that the Court make a determination
of parentage, custody, and child support." E.L. answered, denying
that M.S. was a parent under the Kansas Parentage Act (KPA).
See K.S.A. 2022 Supp. 23-2201 et seq. E.L. then cut off M.S.'s
visitation. E.L. and C.L. married in January 2018.
In April 2018, M.S.'s parentage action was tried. M.S., C.L.,
and E.L. testified. Both C.L. and E.L. described C.L. as very in-
volved in the twins' lives. C.L. detailed her daily schedule with the
boys. E.L. testified that she and C.L. intended for C.L. to adopt
the boys, but they had postponed the adoption plans while M.S.'s
parentage case was pending. Yet C.L. did not assert any presump-
tion of parentage during the trial.
The district court denied M.S.'s petition, finding her involve-
ment with the children was incidental rather than an intentional
VOL. 63 COURT OF APPEALS OF KANSAS 535
In re Parentage of W.L. and G.L.
sharing of full parenting responsibilities. M.S. appealed, but an-
other panel of this court affirmed the district court. See In re W.L.,
56 Kan. App. 2d 958, 982, 441 P.3d 495, rev. granted 310 Kan.
1062 (2019). M.S. petitioned the Kansas Supreme Court for re-
view of that decision, however, and that petition was granted.
In August 2018, after M.S.'s parentage case had concluded at
the district court level, C.L. petitioned to adopt the children, with
E.L.'s consent. While the adoption was pending, E.L. "voluntarily
wrote and signed a parenting agreement confirming [C.L.] is the
boys' legal mother." But that agreement had no preclusive or bind-
ing effect on M.S.'s parentage case. See K.S.A. 2022 Supp. 23-
2209(d) ("Any agreement between an alleged or presumed father
and the mother or child does not bar an action under this section.").
And the adoption was never completed, as E.L. and C.L.'s mar-
riage began to deteriorate.
E.L. and C.L. Divorce
In the spring of 2019, while M.S.'s appeal of her parentage
case was pending with this court, E.L. and C.L.'s marriage deteri-
orated. They separated in early October and by the end of October,
E.L. had petitioned for divorce. In December 2019, C.L. filed her
answer and counter-petition to E.L.'s divorce petition, alleging
that there were two children of their marriage and that C.L. was a
parent to them. E.L.'s answer denied C.L.'s allegation of parentage
but admitted that C.L. was a stepparent to the children and was
entitled to some time with them.
The divorce case remained pending. In the fall of 2020, E.L.
and C.L. reached a coparenting agreement that established joint
legal and physical custody of the children.
The Supreme Court Reverses M.S.'s Parentage Action
While E.L. and C.L.'s divorce was pending, the Kansas Su-
preme Court issued its decision in M.S.'s parentage case in No-
vember 2020. In re W.L., 312 Kan. 367, 369, 475 P.3d 338 (2020).
That case held that "the same-sex partner of a woman who con-
ceives through artificial insemination may establish a legal fiction
of biological parentage by asserting the KPA presumption of ma-
ternity in K.S.A. 2019 Supp. 23-2208(a)(4) (notorious recognition
536 COURT OF APPEALS OF KANSAS VOL. 63
In re Parentage of W.L. and G.L.
of maternity)." 312 Kan. at 381. No written coparenting agreement
is necessary. In re M.F., 312 Kan. 322, 323, 475 P.3d 642 (2020);
In re W.L., 312 Kan. at 368. Instead,
"[s]he need only show she has notoriously recognized maternity and the rights
and duties attendant to it at the time of the child's birth. In addition, in keeping
with Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 147 L. Ed. 2d 49
(2000), the court must ultimately be persuaded that the birth mother, at the time
of the child's birth, consented to share her due process right to decision-making
about her child's care, custody, and control with the woman who is claiming par-
entage under the KPA." 312 Kan. 381-82.
See Frazier v. Goudschaal, 296 Kan. 730, 746-47, 295 P.3d 542
(2013).
Under this "legal fiction," the procedure for establishing ma-
ternity under K.S.A. 2022 Supp. 23-2208(a)(4) is the same as the
procedure for establishing paternity. See In re W.L., 312 Kan. at
381 ("KPA provisions applicable to father and child relationship
apply, insofar as practicable, to determine existence of mother and
child relationship."). Thus, a woman claiming to be a presumptive
mother of a child can be an interested party under the KPA without
claiming to be the biological or adoptive mother. Frazier, 296
Kan. at 747.
A woman trying to establish maternity "bears the burden to
demonstrate the initial presumption." In re W.L., 312 Kan. at 381.
If this burden is successfully met, the burden shifts "to the party
opposed to establishment of the relationship to rebut the presump-
tion by clear and convincing evidence, by court decree establish-
ing paternity or maternity of someone other than the presumed
parent, or under K.S.A. 2019 Supp. 23-2208(c)." 312 Kan. at 381.
Under K.S.A. 2019 Supp. 23-2208(c), "if two conflicting pre-
sumptions arise, 'the presumption which on the facts is founded
on the weightier considerations of policy and logic, including the
best interests of the child' prevails." 312 Kan. at 381. Finally, if a
presumption of parentage is rebutted, "the burden shifts back to
the party seeking establishment of the parent and child relation-
ship, who must go forward with the evidence. K.S.A. 2019 Supp.
23-2208(b). The ultimate burden placed on the party seeking court
VOL. 63 COURT OF APPEALS OF KANSAS 537
In re Parentage of W.L. and G.L.
recognition of the relationship can be discharged by a preponder-
ance of the evidence." 312 Kan. at 381 (citing In re M.F., 312 Kan.
322, Syl. ¶ 4).
The Kansas Supreme Court reversed the district court's order
denying M.S.'s parentage action. It found that the district court
erred by relying on evidence "critical of M.S.'s performance as a
partner and a parent after the twins' birth," stating, "the quality of
her partnering with E.L." is "not necessarily material to the statu-
tory and constitutional questions a district judge must answer" in
determining parentage. 312 Kan. at 382. Similarly, the court found
that the district judge improperly relied on evidence of C.L.'s pos-
itive effect on the twins' lives, because counsel never "truly pur-
sued" the possibility of conflicting parentage presumptions under
K.S.A. 2019 Supp. 23-2208(c). 312 Kan. at 383. And without an
asserted conflicting presumption, "[C.L.] and her relationship to
the twins is irrelevant to whether M.S. can establish her pre-exist-
ing maternity under K.S.A. 2019 Supp. 23-2208(a)(4) and (b)."
312 Kan. at 383.
Our Supreme Court clarified that the focus should be on the
woman's parenting at the time of birth, not the women's relation-
ship. "In re M.F. makes clear that a birth parent needs to make a
decision and be held to it, not given the power to change his or her
mind whenever the bloom is off the rose of romance or it other-
wise suits." 312 Kan. at 383. The court stated: "A child is born
with one legal parent or two. His or her birth mother does not get
to change that reality once it arises by operation of law." 312 Kan.
at 383.
Thus, the Kansas Supreme Court reversed the Court of Ap-
peals' decision and remanded the case for further proceedings. The
court instructed that on remand, the district judge was free to allow
more evidence by the parties, including proof of any conflicting
presumptions. 312 Kan. at 384; see K.S.A. 2022 Supp. 23-
2208(c).
M.S.'s Remanded Parentage Action
M.S.'s remanded parentage case was assigned to Senior Judge
Sundby in February 2021. Because C.L. was not a party to that
538 COURT OF APPEALS OF KANSAS VOL. 63
In re Parentage of W.L. and G.L.
case, she was not electronically notified of any filings or hearings
in it.
Still, C.L. discovered there was a status conference in that par-
entage case scheduled for February 22, 2021, and secured an at-
torney to represent her as an interested party in M.S.'s remanded
parentage case. Without objections, the district court allowed her
attorney to join the status conference held on Zoom to observe. In
discussing the mandate, the attorneys discussed whether a new ev-
identiary hearing was necessary. M.S.'s counsel opined that be-
cause C.L. was not involved with E.L. at the time of the twins'
birth, C.L. could not establish a competing presumption of parent-
age. Thus, M.S. should "just be declared a parent . . . based on the
record alone." E.L.'s counsel disagreed:
"I think there is going to be an issue of competing presumptions. [C.L.] has ac-
tually been in these boys lives for longer than [M.S.] has been in their lives,
especially during the period of time that have been more formative where they
have known her. They call her mom. She's been around three plus years so I think
that's going to be the question for this Court is maybe have to get to the position
where we have a Ross Hearing on the issues of these competing presumptions."
M.S.'s counsel then asked if C.L. intended to assert a compet-
ing presumption of parentage. C.L.'s counsel responded that he
had just been hired and had not yet fully reviewed the case, but he
stated: "I don't think she's going to assert the presumption, Judge.
I think she's going to ask for stepparent visitation in this. . . .
[T]hat's my understanding."
At another hearing, on February 25, 2021, M.S., E.L., and
C.L. all appeared with counsel. The original guardian ad litem also
appeared on behalf of the twins. At that hearing, C.L. said that she
intended to file a motion to intervene in the parentage action that
day. But she neither asserted a presumption of parentage at this
hearing, nor moved to intervene that day.
Similarly, at the next hearing, on March 2, 2021, M.S., E.L.,
and C.L. all appeared with counsel. Again, C.L. did not assert a
presumption of parentage, file any pleadings doing so, or move to
intervene. The court set the case for trial on April 9, 2021.
Between that hearing and the trial date, E.L. and M.S. at-
tended mediation and reached an agreement. That agreement be-
came the basis of the district court's "Order Establishing Parent-
age," filed on April 5, 2021. That order declared M.S. to be the
VOL. 63 COURT OF APPEALS OF KANSAS 539
In re Parentage of W.L. and G.L.
legal parent of the twins, awarded M.S. and E.L. joint legal cus-
tody, and adopted a reintegration parenting time schedule for M.S.
C.L. Intervenes in M.S.'s Parentage Action
Not until July 1, 2021, nearly five months after the first status
conference, and three months after the court decreed M.S. the
twins' legal mother, did C.L. first move to intervene in M.S.'s par-
entage action as an interested party. In that motion, and for the
first time, C.L. claimed a presumption of parentage. She asserted,
as M.S. had, that she had recognized maternity of the twins noto-
riously and in writing under K.S.A. 2022 Supp. 23-2208(a)(4).
On August 19, 2021, the district court entered E.L. and C.L.'s
divorce decree in that separate case. It stated that the parties had
not reached an agreement on any of the issues about the twins.
On that same day, the district court heard C.L.'s motion to in-
tervene in the parentage case. The district court considered con-
solidating E.L. and C.L.'s divorce case with M.S.'s parentage case
rather than permitting C.L. to intervene in M.S.'s parentage case.
But it ultimately denied C.L.'s motion to consolidate the two cases
and granted C.L.'s motion to intervene in the parentage case. The
district court also made orders consistent with E.L.'s and C.L.'s
agreed schedule, giving C.L. temporary stepparenting time and or-
dering that she be listed as a stepparent for school purposes. Me-
diation was ordered to form a permanent schedule.
In November 2021, the district court entered a journal entry
approving the detailed parenting plan agreed to by M.S. and E.L.
and finalizing the child support order.
C.L. Files a Parentage Action
On December 3, 2021, approximately three months after her
motion to intervene was granted, and nearly eight months after the
district court found M.S. to be a legal parent, C.L. first petitioned
to determine parentage or, in the alternative, stepparent visitation.
C.L.'s parentage petition asserted that all three women should
have legal custody of the children. She claimed that she was enti-
tled to these parental presumptions:
(1) K.S.A. 2021 Supp. 23-2208(a)(3)(A), because after the children's birth she
and E.L. married and C.L. acknowledged maternity of the children in writing;
540 COURT OF APPEALS OF KANSAS VOL. 63
In re Parentage of W.L. and G.L.
(2) K.S.A. 2021 Supp. 23-2208(a)(3)(C), because after the children's birth she
and E.L. married and C.L. was "obligated to support the children under a written
voluntary promise"; and
(3) K.S.A. 2021 Supp. 23-2208(a)(4), because C.L. had notoriously or in writing
recognized maternity of the children.
M.S. answered and she and E.L. later jointly moved to dismiss
C.L.'s parentage action. They agreed that C.L. is a stepparent and
that the children love her and have a relationship with her. But
they argued that C.L. had failed to state a claim upon which relief
could be granted for several reasons, including that no legal frame-
work exists in Kansas under which a child can have three legal
parents (stepparents aside), and that stepparent visitation should
be handled in E.L. and C.L.'s divorce case rather than in a parent-
age case. The motion also argued that the only two parents for the
twins are M.S. and E.L. because C.L. knew about M.S.'s parentage
petition, C.L. participated in the trial as a witness for E.L., M.S.'s
parentage had already been established by court order by the time
C.L. filed her own parentage petition, and there is "zero legal prec-
edent or argument for adding another parent post-decree."
The district court granted the motion to dismiss C.L.'s parent-
age action for failure to state a claim under K.S.A. 2022 Supp. 60-
212(b)(6).
C.L. timely appeals.
Analysis
On appeal, C.L. does not raise all the claims she made to the
district court. She does not argue that Kansas law recognizes or
should recognize three legal parents of a child. Nor does she argue
that she had a presumption of maternity under K.S.A. 2022 Supp.
23-2208(a)(4) (notoriously or in writing recognized maternity of
the children). C.L. has thus abandoned those claims. See State v.
Funk, 301 Kan. 925, 933, 349 P.3d 1230 (2015) (issue not ade-
quately briefed is considered abandoned).
DID THE DISTRICT COURT PROPERLY DISMISS C.L.'S
PARENTAGE PETITION?
We first address M.S.'s claim that the district court "properly
exercised the doctrine of collateral estoppel and/or res judicata"
VOL. 63 COURT OF APPEALS OF KANSAS 541
In re Parentage of W.L. and G.L.
when denying C.L.'s parentage petition. In response, C.L. argues
that the parties never argued these doctrines on remand and the
district court never relied on either doctrine to support its dismis-
sal of her petition, but even if it had, reliance on those doctrines is
improper because M.S.'s parentage action did not determine C.L.'s
parentage.
Collateral estoppel and res judicata are affirmative defenses
that must be set forth in the responsive pleading—here, M.S.'s an-
swer. K.S.A. 2022 Supp. 60-208(c); Estate of Belden v. Brown
County, 46 Kan. App. 2d 247, 262, 261 P.3d 943 (2011); see State
v. Parry, 305 Kan. 1189, 1193, 390 P.3d 879 (2017). An affirma-
tive defense not asserted in an answer is waived. Turon State Bank
v. Bozarth, 235 Kan. 786, Syl. ¶ 1, 684 P.2d 419 (1984); Church
of God in Christ, Inc. v. Board of Trustees, 47 Kan. App. 2d 674,
685-86, 280 P.3d 795 (2012) (holding, as matter of law, affirma-
tive defenses of res judicata and collateral estoppel are waived
when no answer was filed); Estate of Belden, 46 Kan. App. 2d at
262 (holding application of res judicata improper when not raised
in answer).
But M.S.'s answer to C.L.'s petition does not raise the affirm-
ative defense of collateral estoppel or res judicata. By failing to
plead these defenses in her answer, M.S. waived them and cannot
assert them for the first time on appeal. See Turon State Bank, 235
Kan. 786, Syl. ¶ 1; Church of God in Christ, Inc., 47 Kan. App.
2d at 685-86; Estate of Belden, 46 Kan. App. 2d at 262; see also
In re Adoption of Baby Girl G., 311 Kan. 798, 801, 466 P.3d 1207
(2020) (holding issues not raised before district court cannot be
raised on appeal). But see Forster v. Fink, 195 Kan. 488, 493, 407
P.2d 523 (1965) ("A party impliedly consents to the introduction
of issues not raised in the pleadings by his failure to make a timely
objection to the admission of evidence relating thereto.").
And like C.L., we find no indication in the record that the dis-
trict court relied on either res judicata or collateral estoppel as a
basis to dismiss C.L.'s parentage action. The court neither referred
to those doctrines nor cited any of their elements in its written or-
der or its oral ruling from the bench. See Herington v. City of
Wichita, 314 Kan. 447, 457-58, 500 P.3d 1168 (2021) (res judicata
elements); In re Care & Treatment of Easterberg, 309 Kan. 490,
502, 437 P.3d 964 (2019) (collateral estoppel elements). Nor does
542 COURT OF APPEALS OF KANSAS VOL. 63
In re Parentage of W.L. and G.L.
M.S. show that these preclusion doctrines bar suit by a nonparty.
See Brockman Equipment Leasing, Inc. v. Zollar, 3 Kan. App. 2d
477, 482, 596 P.2d 827 (1979) (one not a party is not bound by the
doctrine of res judicata); see also In re Tax Appeal of Fleet, 293
Kan. 768, 778, 272 P.3d 583 (2012) ("Issue preclusion prevents a
second litigation of the same issue between the same parties, even
when raised in a different claim or cause of action."). We thus dis-
agree that the district court dismissed C.L.'s parentage petition
based on the doctrine of res judicata or collateral estoppel.
Still, the district court did find C.L.'s parentage petition was
essentially filed too late, as the motion to dismiss had argued. The
court had already adjudicated another person (M.S.) to be the legal
mother of the twins, besides their birth mother. In other words,
C.L. did not timely present any "competing presumption." See
K.S.A. 2022 Supp. 23-2208(c).
The district court's written order simply states that dismissal
is proper because "[t]he Court finds that there were no competing
presumptions at the time of the children's birth." But its oral ruling
puts flesh on the bones of that order:
"And now there is no denying that [C.L.] has gained a relationship with
these children and has been involved in it and nobody seems to be disputing that.
"But the facts are, as I think we have to look at it from a—not from the facts
that you wish to present to support her care and her love and closeness to this
child, I have to look at it and I am looking at it on the basis that at the time of
birth and conception there was no competing interest or presumption. Then a
hearing was held and found—and she was found to be a parent and no matter
how close and loving that relationship has become as a stepparent, that can't rise
to the level of a parent or to a presumption of a parentage.
"Only then the Court would—this Court would be creating new law, which
is not applicable, to create the concept of a third parent. And that doesn't appear
to fly with the legislature. That doesn't appear to be contained within the lan-
guage of the past cases issued by the Appellate Courts and so, therefore, the
Court will grant the motions to dismiss at this time."
True, this ruling states that "at the time of birth and conception
there was no competing interest or presumption." That statement
is accurate. C.L. was not in the picture when the twins were born,
since she and E.L. began dating after their second birthday. And
that finding is controlling as to C.L.'s claim of maternity under
K.S.A. 2022 Supp. 23-2208(a)(4). As the Kansas Supreme Court
held in In re M.F., 312 Kan. 322, Syl. ¶ 5, a notorious or written
VOL. 63 COURT OF APPEALS OF KANSAS 543
In re Parentage of W.L. and G.L.
recognition of parentage had to be done at the time of the child's
birth to give rise to a presumption under K.S.A. 2022 Supp. 23-
2208(a)(4). So the district court correctly held that the facts pre-
cluded C.L. from any presumption of maternity under K.S.A.
2022 Supp. 23-2208(a)(4).
But the two subsections that C.L. asserts on appeal, K.S.A.
2022 Supp. 23-2208(a)(3)(A) and (a)(3)(C), expressly base pre-
sumptions on events arising "[a]fter the child's birth." ("After the
child's birth, the man and the child's mother have married . . . and
. . . (A) The man has acknowledged paternity of the child in writ-
ing; . . . or (C) the man is obligated to support the child under a
written voluntary promise."). According to the plain language of
those subsections, those presumptions under K.S.A. 2022 Supp.
23-2208 need not exist at the time of the child's birth. Although
the Legislature put time limits (300 days after certain events) on
presumptions in K.S.A. 2022 Supp. 23-2208(a)(1) and (a)(2), the
presumptions in K.S.A. 2022 Supp. 23-2208(a)(3)(A) and
(a)(3)(C) are based on events "after the child's birth" and state no
time limit. And no general statute of limitations applies to a par-
entage action based on the presumptions in K.S.A. 2022 Supp. 23-
2208. See K.S.A. 2022 Supp. 23-2209(a)(1) ("any person on be-
half of such a child may bring an action . . . [a]t any time to deter-
mine the existence of a father and child relationship presumed un-
der K.S.A. 2022 Supp. 23-2208").
Still, the district court did not base its ruling solely on the lack
of conflicting presumptions at the time of birth. The rest of the
court's ruling says that the court held a parentage hearing, that the
court found M.S. to be a parent, that a stepparent cannot also be a
parent, and that to find in C.L.'s favor would create new law—the
concept of a third parent—which the district court declined to do.
In other words, C.L. was bringing an improper collateral attack on
the court's previous judgment that M.S. was the twins' parent. C.L.
invites us to ignore the district court's prior judgment in favor of
M.S., yet that judgment, even if voidable for some reason, had
become a finality and beyond attack before C.L. began her parent-
age action.
A collateral attack is "[a]n attack on a judgment in a proceed-
ing other than a direct appeal." Black's Law Dictionary 329 (11th
ed. 2019). Collateral attacks on judgments of our courts of general
544 COURT OF APPEALS OF KANSAS VOL. 63
In re Parentage of W.L. and G.L.
jurisdiction (such as the district court) are generally precluded un-
less permitted by statute. Jones v. Jones, 215 Kan. 102, 112-13,
523 P.2d 743 (1974). Although res judicata principles apply only
to parties and those in privity with them, the collateral attack doc-
trine applies to both parties and nonparties. Ohio Pyro, Inc. v.
Ohio Dept. of Commerce, 115 Ohio St. 3d 375, 382, 875 N.E.2d
550 (2007).
"The questioning of the validity of a decree of adoption in any
proceeding other than a direct appeal or a petition to set aside the
adoption is a collateral attack." Jones, 215 Kan. at 111. In Jones,
the district court found the natural parents' consent to adoption
was valid. On appeal, the Kansas Supreme Court found that the
district court had jurisdiction to decide the validity of the parents'
consent, and decided the consent was valid, so the parents were
estopped from collaterally attacking the decree of adoption. The
court held that a judgment by a court having jurisdiction of the
parties and the subject matter is final and conclusive unless it is
later modified on appeal or by later legislation, and such a judg-
ment cannot legally be collaterally attacked.
"This court has consistently held against collateral attacks upon judgments
of the courts of this state which have general jurisdiction of an issue. Where a
court has jurisdiction of the parties to an action and of the subject matter, and
renders a judgment within its competency, even if erroneous, the judgment is
final and conclusive unless corrected or modified on appeal or by such other
method as may be prescribed by statute, and it may not be attacked collaterally
otherwise. [State v. Shepherd, 213 Kan. 498, Syl. ¶ 3, 516 P.2d 945 (1973)]."
215 Kan. at 112-13.
Lack of jurisdiction is the only exception we know of to the
rule barring collateral attacks. Even then, the collateral attacker
has the burden to show clearly and conclusively that the court that
entered the judgment lacked jurisdiction to do so:
"Collateral attacks upon judicial proceedings are never favored, and where
such attacks are made, unless it is clearly and conclusively made to appear that
the court had no jurisdiction, or that it transcended its jurisdiction, the proceed-
ings will not be held to be void but will be held to be valid." 215 Kan. 102, Syl.
¶ 4.
See Chamberlin v. Thorne, 145 Kan. 663, 669-70, 66 P.2d 571
(1937) (presumption of jurisdiction attaches to judgments of
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In re Parentage of W.L. and G.L.
courts of general jurisdiction; mere silence of record as to exist-
ence of facts essential to jurisdiction of probate court in adoption
proceedings cannot defeat judgment of adoption on collateral at-
tack); Brockman Equipment Leasing, 3 Kan. App. 2d at 482 (find-
ing collateral attacker failed to sustain burden which "rests heav-
ily" upon him to show lack of jurisdiction). Cf. Choctaw & Chick-
asaw Nations v. City of Atoka, Okl., 207 F.2d 763, 766 (10th Cir.
1953) ("On a collateral attack on a judgment of a court of general
jurisdiction it will be presumed, unless the contrary affirmatively
appears, that all parties to the action were properly served with
process.").
When a collateral attack fails to challenge the jurisdiction of
the court, it should be dismissed on this basis alone:
"Second, collateral attacks on judgments are clearly disfavored under the
law, and Kansas courts have held this especially true in cases of adoptions. Kan-
sas decisions hold that valid adoptions proceedings are not subject to collateral
attack. Jones v. Jones, 215 Kan. 102, 111, 523 P.2d 743, cert. denied 419 U.S.
1032 (1974); Walker v. McNutt, 165 Kan. 533, Syl. ¶ 3, 196 P.2d 163 (1948);
LeShure v. Zumalt, 151 Kan. 737, 739[,] 100 P.2d 643 (1940). The defendants'
counterclaim is a collateral attack on the Winkelmans' adoptions and is not fa-
vored; more importantly, it does not challenge the jurisdiction of the adoptions
court and should be dismissed on this basis alone. See Long v. Winkelman, case
No. 86,270, unpublished opinion filed October 19, 2001." Winkelman v. Tihen,
No. 96,488, 2007 WL 2767973, at *8 (Kan. App. 2007) (unpublished opinion).
Thus, in Long v. Winkelman, No. 86,270, 2001 WL 37132485, at
*2 (Kan. App. 2001) (unpublished opinion), the court found that
collateral attacks on an adoption judgment failed to state legally
cognizable causes of action, and allowing an amendment to the
pleadings would have been an exercise in futility, citing Johnson
v. Board of Pratt County Comm'rs, 259 Kan. 305, 327, 913 P.2d
119 (1996) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct.
227, 9 L. Ed. 2d 222 [1962]).
Although this is not an adoption case, the principles underly-
ing the collateral attack doctrine apply just as strongly here, in a
parentage action. Both types of cases create a parent-child rela-
tionship and share the underlying realities that children are not
commodities, that competing claims to children are foreseeable,
that judgments are life-altering, that finality is necessary, and that
delay is to be avoided.
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In re Parentage of W.L. and G.L.
The district court had jurisdiction of the parties to M.S.'s par-
entage action and of the subject matter, and rendered a judgment
within its competency on April 5, 2021, declaring M.S. the legal
parent of the twins. See K.S.A. 2022 Supp. 23-2210(a) ("The dis-
trict court has jurisdiction of an action brought under the Kansas
parentage act."). Although that 2021 judgment stemmed from the
agreement of the parties to that litigation, it is still a valid judg-
ment of the court. A consent judgment is just as effective as if the
merits had been litigated and "it binds the parties as fully as other
judgments." Black's Law Dictionary 1007 (11th ed. 2019). As a
result, the 2021 judgment that M.S. is a parent is entitled to the
presumption of finality that the doctrine disfavoring collateral at-
tacks affords to a valid judgment. So even if that ruling were
somehow erroneous, the judgment is final and conclusive unless
corrected or modified on appeal or by another method prescribed
by statute, and it may not be attacked collaterally except for lack
of jurisdiction.
Yet C.L. makes no challenge to the district court's jurisdiction
in M.S.'s parentage action. She mentions that she was not a party
to that case and that neither E.L. nor M.S. notified her about its
progress, but she does not argue or show on appeal that she should
have been made a party to that action.
The relevant statutes under the KPA do not suggest that C.L.
was a necessary party to M.S.'s parentage action. These statutes
set out who the necessary parties are to a parentage action and who
must get notice of that action. K.S.A. 2022 Supp. 23-2210(b) pro-
vides that in any parentage action, the initial pleading shall include
the information required by K.S.A. 2022 Supp. 23-37,209. The
latter statute requires the petitioner to state, among other matters,
whether the petitioner "knows the names and addresses of any per-
son not a party to the proceeding who has physical custody of the
child or claims rights of legal custody or physical custody of, or
visitation with, the child and, if so, the names and addresses of
those persons." K.S.A. 2022 Supp. 23-37,209(a)(3). K.S.A. 2022
Supp. 23-2211(a) states that for parentage actions (non-child sup-
port) "the child, the mother, each man presumed to be the father
under K.S.A. 2022 Supp. 23-2208, and amendments thereto, and
each man alleged to be the father shall be made parties." But in
October 2017, when M.S. filed her parentage petition, C.L. had
VOL. 63 COURT OF APPEALS OF KANSAS 547
In re Parentage of W.L. and G.L.
not alleged that she was the children's mother, nor had she asserted
any presumption under K.S.A. 2017 Supp. 23-2208. Nor did she
so allege during the trial in May 2018. And on appeal, C.L. does
not allege that M.S. or E.L. violated these statutes and does not
contend that she was a necessary party to M.S.'s parentage action.
We find nothing inequitable about this. C.L. had actual knowledge
of M.S.'s parentage petition while it was being litigated in the district
court as evidenced by her testimony during that trial about her relation-
ship to E.L. and to the children. And although C.L. contends that she
was not notified of the post-remand progress of M.S.'s parentage case
because she was not a party to it, she had actual and timely knowledge
of its progress after the Kansas Supreme Court remanded it—her attor-
ney represented her interests in that case and she also appeared in pre-
trial conferences in February and March 2021, before the district court
entered its order finding M.S. to be the legal parent of the twins. Yet
C.L. filed no motion to intervene nor any petition for parentage until
months after the district court entered that order. Essentially, she sat
upon her rights. See Ingraham v. Fischer, No. 109,584, 2013 WL
5975967, at *1 (Kan. App. 2013) (unpublished opinion) (noting legal
maxim that if you sit on your rights, you can lose them, often with un-
fortunate results); Hagen v. Perry, No. 92,256, 2005 WL 3433998, at
*4 (Kan. App. 2005) (unpublished opinion) (same). Cf. State ex rel.
Stovall v. Meneley, 271 Kan. 355, 388-89, 22 P.3d 124 (2001) (explain-
ing that doctrine of laches stems from maxim that equity aids the vigi-
lant and not those who slumber on their rights; laches is "the neglect to
assert a right or claim which, taken together with the lapse of time and
other circumstances causing prejudice to the adverse party, operates as
a bar in a court of equity"). And C.L. does not contend on appeal that
her lack of notice deprived the district court of jurisdiction to enter its
order finding M.S. the legal parent.
But even if C.L. were a necessary party to M.S.'s parentage
action, her non-joinder would not void the district court's judg-
ment that M.S. was the twins' legal parent. This is because under
the KPA, failure to join a necessary party does not divest the court
of jurisdiction. Rather, in that event, the court's judgment, which
otherwise determines the existence of the parent and child rela-
tionship for all purposes, solely determines the duty of child sup-
port:
548 COURT OF APPEALS OF KANSAS VOL. 63
In re Parentage of W.L. and G.L.
"The judgment or order of the court determining the existence or nonexist-
ence of the parent and child relationship is determinative for all purposes, but if
any person necessary to determine the existence of a father and child relationship
for all purposes has not been joined as a party, a determination of the paternity
of the child shall have only the force and effect of a finding of fact necessary to
determine a party's duty of support." K.S.A. 2022 Supp. 23-2215(a).
So if C.L. were a necessary yet non-joined party to M.S.'s parent-
age petition, her non-joinder would not divest the district court of
jurisdiction.
Since C.L. does not show that she was a necessary party, the
judgment of the court finding a parent and child relationship be-
tween M.S. and the twins is "determinative for all purposes."
K.S.A. 2022 Supp. 23-2215. And because C.L. fails to meet her
burden to show "clearly and conclusively" that the district court
lacked jurisdiction to enter its judgment finding M.S. to be the le-
gal parent of the twins, she cannot now attack that judgment. See
Jones, 215 Kan. 102, Syl. ¶ 4.
C.L. cites one case in support of her argument that her parent-
age petition was timely—In re A.K., 62 Kan. App. 2d 536, 518
P.3d 815 (2022). She cites its language that "[t]he reasonable way
for a court to consider the 'time of birth' analysis in a stepparent
case such as this is to consider that analysis as one more factor to
be weighed." 62 Kan. App. 2d at 548. But there, the court was
presented with two conflicting presumptions before it reached any
decision on parentage—one under K.S.A. 2022 Supp. 23-
2208(a)(4) from a woman, and one under K.S.A. 2022 Supp. 23-
2208(a)(3)(B) from a man who was named as father on the child's
birth certificate several years after the child was born. A panel of
this court recognized that the "time of birth" analysis applies only
to presumptions under K.S.A. 2022 Supp. 23-2208(a)(4). 62 Kan.
App. 2d at 548. Still, it found "concerns for preserving 'vital
bonds' that develop between parent and child and for the stability
of the child do come into play in a case like this where A.M.'s
parentage began at the birth of the child and Q.K.'s claim arose
several years later." 62 Kan. App. 2d at 548. Under those circum-
stances, the fact that the man's competing presumption did not
arise until years after the woman had entered the children's lives
was just one factor to be weighed in the competing presumption
analysis.
VOL. 63 COURT OF APPEALS OF KANSAS 549
In re Parentage of W.L. and G.L.
Not so here. In re A.K. does nothing to help convince us that
we should or could ignore the binding effect of the district court's
judgment that M.S. was the legal parent of the twins. There, the
parties raised conflicting presumptions of parentage which the
court weighed and resolved in one action. Here, C.L. first asserted
parentage four years after M.S. asserted parentage and several
months after the court entered its judgment that M.S. was the legal
parent.
Affirmed.
