author: STEGNER, Justice.

text:
    SECURITY INVESTOR FUND LLC and Security Financial Fund LLC, Plaintiffs-Appellants-Cross Respondents, v. Brian CRUMB, Defendant-Respondent-Cross-Appellant, and Jennifer O'Callaghan, Brian O'Callaghan, Jitinvest LLC, Spirit Elements, Inc., and Todd A. Reeve, Defendants.
    Docket No. 45969
    Supreme Court of Idaho, Moscow, April 2019 Term.
    Filed: May 23, 2019
    Bistline Law, PLLC, Coeur d'Alene, for appellant. Arthur M. Bistline argued.
    Murphey Law Office, PLLC, Coeur d'Alene, for respondent. Darrin L. Murphey argued.
   STEGNER, Justice.

In 2005, Brian Crumb, Frankie McFeron-Crumb, and Marian Crumb joined together with Richard Abbey and Keri Ann Abbey to form Abbey & Crumb Developments, LLC, for the purpose of developing an eighteen-lot subdivision near Post Falls, Idaho. Sometime in 2006, the LLC caused a road to be constructed, which was to serve as the entrance for the subdivision (the entrance road). The road was built on Brian and Frankie Crumb's land abutting the subdivision and, once constructed, was the only drivable road in and out of the subdivision.

In September 2006, the Crumbs withdrew from the LLC. Shortly thereafter, the LLC defaulted on a loan from Security Investor Fund, LLC, and Security Financial Fund, LLC (collectively "Security"). Security then accepted deeds in lieu of foreclosure from the LLC and became an owner of certain lots within the subdivision. At some point in 2017, Brian Crumb took the position that certain subdivision lot owners did not have a right to use the entrance road on his adjoining property, as no applicable easements had ever been recorded. Security then initiated the underlying lawsuit in an effort to establish an easement to use the entrance road. The district court granted summary judgment to Brian Crumb and entered judgment in his favor dismissing Security's complaint. Security appeals from that judgment. Brian Crumb also appeals the district court's denial of his request for attorney fees and costs below and requests attorney fees on appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

In 2003, Brian Crumb (Crumb) and his wife, Frankie McFeron-Crumb (Frankie), purchased a parcel of real property in Kootenai County (the adjacent Crumb property). A few years later, on July 25, 2005, Crumb, Frankie, Crumb's mother, Marian Crumb (Marian), and Richard Abbey and Keri Ann Abbey (collectively "Abbeys"; the singular "Abbey" refers to Richard Abbey) formed an LLC named Abbey & Crumb Developments, LLC (the LLC). The purpose of the LLC was to develop an eighteen-lot subdivision on 200 acres as depicted in the Second Amended Plat of Fritz Heath Forest Tracts (the subdivision). The adjacent Crumb property is not located within the subdivision. However, the adjacent property adjoins the subdivision by sharing a common boundary. The Second Amended Plat depicts an access road through the subdivision that does not travel into the adjacent Crumb property.

On September 23, 2005, Crumb met with the engineering firm Inland Northwest Consultants (INC) to discuss the design and construction of an access road into and through the subdivision. INC supplied a proposal for the job on September 26, 2005.

On January 6, 2006, the LLC approved a Declaration of Covenants, Conditions and Restrictions for the subdivision (the CC & Rs), which were signed by Crumb, Frankie, Marian, and the Abbeys. (The CC & Rs was not recorded in Kootenai County until January 5, 2016, almost exactly ten years later.) The CC & Rs state the following: "The declarant[ ] hereby reserves an easement for a private road through each lot to service continued lots in Fritz Heath Second Amended Forest tracts. The road easement on each lot is shown in Exhibit 'A' which is attached and incorporated herein." Although the nature and content of Exhibit "A" is contested, there is no dispute that it was not attached to nor was it recorded with the CC & Rs. Crumb contends the map that should have been attached to the CC & Rs would have shown the original road as depicted on the plat maps-a road not traveling through his property. In contrast, Abbey attached a dark and nearly unrecognizable map to his affidavit, claiming it is what should have been attached and recorded with the CC & Rs. Upon closer inspection, it can be seen that Abbey's map depicts the road later contemplated by INC that does run through the adjacent Crumb property. Abbey's map is undated.

Also in 2006, INC advised the LLC that, due to the steep topography of the subdivision, it would be cheaper to construct a roadway through the adjacent Crumb property than to build it where originally depicted in the Second Amended Plat. As a result, INC designed a road to that effect called Monument Ridge Drive (the entrance road). Two maps of the entrance road are dated July 14, 2006, and were stamped for approval by the Kootenai County Building and Planning Department on July 21, 2006. With the entrance road designed, the LLC applied for a building permit to construct it through the adjoining Crumb property. The application was apparently approved by Kootenai County on July 21, 2006.

The dispute in this case regards a potential easement over the entrance road constructed on the adjoining Crumb property. It appears that sometime in 2006 there was, at least initially, an oral agreement allowing the road to be built and people to drive over it: Abbey claimed that the Crumbs "expressly agreed" that the entrance road would be constructed on the adjoining Crumb property and that the road would be used by all the subdivision lot owners as the permanent, perpetual access to all of the subdivision lots. Crumb claimed that he made an offer to Abbey and the LLC that he would grant easements over the adjacent Crumb property to all of the lot owners within the subdivision for the payment of $200,000 from the LLC. (There is nothing in this record to suggest Abbey rejected Crumb's offer; however, Security challenges Crumb's claim and therefore the underlying offer.) Crumb contends the offer was accepted by the LLC and stated that the LLC and he "verbally agreed that upon the receipt of payment in the amount of $200,000" he "would grant easements to the lots in the" subdivision. It is undisputed that the LLC has not paid Crumb for any easements.

Construction of the road on the adjacent Crumb property began while Crumb, his wife, and his mother were still members of the LLC. Abbey claimed that he and Crumb personally worked on clearing trees for the entrance road on the adjacent Crumb property.

On September 26, 2006, after the alleged, initial oral agreement, all three Crumbs withdrew from the LLC. For their stake in the LLC, the LLC reconveyed certain lots from the subdivisions to the Crumbs. All five members of the LLC signed a withdrawal agreement to that effect. The withdrawal agreement also stated,

ROADS AND UTILITIES TO FRITZ FOREST: The parties agree that it will be the obligation and responsibility of the LLC to complete the road building work and to provide ingress and egress ... to each lot ....
ENTIRE AGREEMENT OF THE PARTIES: It is agreed, this is the entire agreement of the parties, and any amendment or additions to the Agreement must be in written form similar in form to this Agreement, with all parties signing said Amendment.

The entrance road was not finished or drivable when the Crumbs withdrew from the LLC. Sometime thereafter, however, the first section of the entrance road was completed and made passable into the subdivision through the adjoining Crumb property. Construction of the entrance road completely destroyed the old road depicted on the plats. The entrance road has been completed through the adjacent Crumb property and through at least the five northern lots of the subdivision. The LLC spent approximately $45,000 constructing the entrance road.

Sometime after the Crumbs withdrew from the LLC, the LLC defaulted on a debt owed to Security Financial Fund, LLC, and Security Investor Fund, LLC. Eventually, Security accepted deeds in lieu of foreclosure rather than foreclosing on the LLC's property that was held as collateral. Although the specific details are not in the record, Security then became an owner of certain lots in the subdivision. No easements on Crumb's property were recorded when Security lent money to the LLC or when Security accepted the deeds. Nevertheless, Security claimed it reasonably believed it had legal access to its lots through the entrance road over the adjacent Crumb property.

In 2017, Crumb informed Kootenai County that certain subdivision lot owners did not have easements to cross his property. Consequently, Security filed its lawsuit on July 19, 2017.

In its verified complaint, Security alleged that Crumb committed a breach of contract and fraud, and asked for a declaratory judgment establishing an easement over Crumb's property. Security's complaint listed four additional subdivision lot owners as defendants (as they own the four lots between Security's lots and the adjoining Crumb property, upon which the entrance road travels) and requested a declaratory judgment establishing an easement over those properties as well. Crumb was the only defendant to answer and requested Security's complaint against Crumb be dismissed with prejudice. (Likewise, Crumb is the only named defendant involved in this appeal.) Neither party demanded a jury trial.

After cross motions for summary judgment, the district court issued a memorandum decision denying Security's motion and granting Crumb's. On January 19, 2018, the district court entered a judgment dismissing Security's complaint with prejudice. On February 1, 2018, Security moved the court to reconsider its summary judgment decision. On February 22, 2018, the court filed a memorandum decision denying Security's motion to reconsider (reconsideration decision). Security timely appealed.

II. STANDARD OF REVIEW

This Court employs the same standard as the district court when reviewing rulings on summary judgment motions.

La Bella Vita, LLC v. Shuler, 158 Idaho 799, 805, 353 P.3d 420, 426 (2015) (citing Wesco Autobody Supply, Inc. v. Ernest, 149 Idaho 881, 890, 243 P.3d 1069, 1078 (2010) ). "The fact that the parties have filed cross-motions for summary judgment does not change the applicable standard of review." Tiller White, LLC v. Canyon Outdoor Media, LLC, 160 Idaho 417, 419, 374 P.3d 580, 582 (2016) (quoting Shawver v. Huckleberry Estates, L.L.C., 140 Idaho 354, 360, 93 P.3d 685, 691 (2004) ). "The court must grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." I.R.C.P. 56(a). "The fact that both parties move for summary judgment does not in and of itself establish that there is no genuine issue of material fact." Shawver, 140 Idaho at 360, 93 P.3d at 691 (citing Kromrei v. AID Ins. Co., 110 Idaho 549, 551, 716 P.2d 1321 (1986) ).

When no jury has been demanded and the trial court will act as the finder of fact, the trial court "is entitled to arrive at the most probable inferences based upon the undisputed evidence properly before it and grant the summary judgment despite the possibility of conflicting inferences." Tiller White, LLC, 160 Idaho at 419, 374 P.3d at 582 (quoting Shawver, 140 Idaho at 361, 93 P.3d at 692 ). Such inferences drawn by the trial court are upheld if reasonably supported by the record. Id. (citing Beus v. Beus, 151 Idaho 235, 238, 254 P.3d 1231, 1234 (2011) ).

The district court was bound to apply these same summary judgment standards to its decision on the motion to reconsider, as this Court must also do when reviewing such a decision. Fragnella v. Petrovich, 153 Idaho 266, 276, 281 P.3d 103, 113 (2012).

III. ANALYSIS

A. The district court correctly found there was no written easement.

In its motion for summary judgment, Security argued that Frankie McFeron-Crumb and Brian Crumb granted its predecessor in interest, the LLC, an express, perpetual easement over the adjoining Crumb property. Security has argued that this express easement came into existence either by written agreement or by a partially (or fully) performed oral agreement.

Idaho's statute of frauds requires the transfer of an interest in real property to be in writing and that it be signed by the party granting the interest. I.C. § 9-503. An easement is an "interest in real property within the meaning of the statute [of frauds] and require[s] a writing subscribed by the grantor in order to be created." Fajen v. Powlus, 96 Idaho 625, 628, 533 P.2d 746, 749 (1975) (citation omitted). Thus, the initial inquiry is whether there is a writing evidencing the purported easement or at least a genuine issue of material fact regarding the existence of such a writing.

The district court found there was no evidence establishing a written easement. In this regard, the district court was correct. In its reconsideration decision, the district court further held that the CC & Rs did not satisfy the statute of frauds, as they did "not describe the property subject to the easement, ... [and] without the missing attachment, there is no description whatsoever of the property subject to the agreement." On appeal, Security challenges this finding in only one regard: that such a finding was precluded because the parties disagreed as to what was supposed to be attached to the CC & Rs, thereby creating a genuine issue of material fact. This argument fails because the CC & Rs are not applicable to the adjacent Crumb property-the property over which the easement is claimed.

"At a minimum, a valid express easement must identify the land subject to the easement and express the intent of the parties." Machado v. Ryan, 153 Idaho 212, 218, 280 P.3d 715, 721 (2012) (citing Hodgins v. Sales, 139 Idaho 225, 233, 76 P.3d 969, 977 (2003) ). Although the writing need not necessarily use specific words to create an express easement, it must be clear from the writing that the parties intended to "establish a servitude" over the land identified. Id. (quoting Coward v. Hadley, 150 Idaho 282, 287, 246 P.3d 391, 396 (2010) ).

The CC & Rs state that "[t]he property protected by this Declaration is the real estate located on and within the" subdivision.

The passage in the CC & Rs regarding easements belies Security's contention, "[t]he declarant hereby reserves an easement for a private road through each lot to service continued lots in Fritz Heath Second Amended Forest tracts. The road easement on each lot is shown in Exhibit 'A.' " (Italics added.) Thus, by the clear language used, any easement created by the CC & Rs only existed on the eighteen lots within the subdivision. There is no reference to an easement outside the subdivision.

The adjacent Crumb property is not "on [or] within" the subdivision; it is not a lot. Accordingly, even drawing the inference in favor of Security, and assuming the attached exhibit was as Security contends (which, as noted, appears implausible) and depicted a road traveling through the adjacent Crumb property, that would not be enough to establish an easement over it. This is because the clause creating the easements does not establish any easements over lots outside the subdivision. Security has not contended that its proposed exhibit contains language creating easements on land outside of the subdivision; it has only suggested the exhibit is a map that depicted a road traveling over the adjacent Crumb property. Such an attachment would thus not evidence the parties' intent to create an easement over land not in the subdivision. Likewise, the CC & Rs do not identify the adjacent Crumb property as land subject to any easements. See Machado, 153 Idaho at 218, 280 P.3d at 721. Therefore, this disputed issue of fact (whatever was intended to be attached to the CC & Rs) is immaterial. Accordingly, the district court did not err in concluding that no written easement existed. Regardless, it still must be examined whether an oral agreement was properly made as an exception to the statute of frauds. Preliminarily, it must be determined if such an oral agreement was barred by the later, written withdrawal agreement.

B. The withdrawal agreement's merger clause did not preclude any oral easement agreement.

Crumb contends that the withdrawal agreement's merger clause precluded the alleged oral easement agreement. Security responds, arguing that the merger clause does not affect Security because Security was not a party to that agreement. This argument is irrelevant. As the successor in interest to the LLC, Security's claim depends on what its predecessor in interest did. Security clarifies in its response that the LLC is not bound by the withdrawal agreement either, as the agreement was only between the Crumbs and the other members of the LLC, not the LLC itself. For the reasons set forth below, the merger clause does not preclude the claim to an oral easement.

When a written contract is integrated, such as the withdrawal agreement is here, "[o]ral stipulations, agreements, and negotiations preliminary to a written contract are presumed merged therein and will not be admitted to contradict the plain terms of the [written] contract ." Valley Bank v. Christensen, 119 Idaho 496, 498, 808 P.2d 415, 417 (1991) (alteration in original) (italics added) (quoting Ringer v. Rice, 97 Idaho 105, 108, 540 P.2d 290, 293 (1975) ). This rule regards the barring of parol evidence to alter the later written contract.

"[E]vidence of prior or contemporaneous oral agreements relating to the same subject matter is inadmissible to vary, contradict, or enlarge the terms of the written agreement." Valley Bank, 119 Idaho at 499, 808 P.2d at 418. However, parol evidence "is admissible to establish 'any fact that does not vary, alter, or contradict the terms of the instrument or the legal effect of the terms used.' " Cannon v. Perry, 144 Idaho 728, 731, 170 P.3d 393, 396 (2007) (quoting 29A Am.Jur.2d Evidence § 1106 (1994) ).

Steel Farms, Inc. v. Croft & Reed, Inc., 154 Idaho 259, 267, 297 P.3d 222, 230 (2012).

Here, the merger clause and the parol evidence rule do not affect the purported oral easement for two related reasons. First, the alleged oral easement agreement does not relate to the same subject matter of the withdrawal agreement. The withdrawal agreement does not contemplate easements or a payment for easements; it concerns the transfer of assets to members leaving the LLC. Notably, the duty to construct the road is potentially within the ambit of both the alleged oral easement agreement and the withdrawal agreement. However, this overlap does not invoke the merger clause because of the second reason: Security is not trying "to vary, contradict, or enlarge the terms of the written [withdrawal] agreement[,]" it is attempting to enforce separate and distinct terms of a different agreement. Id. (italics added). This remains true even though the duty to construct the road may be found in both agreements. No parties seek to introduce evidence to alter, enlarge, or contradict the requirement that the LLC construct the road-in fact, this obligation has been performed. Thus, the alleged oral easement agreement is not merged into the withdrawal agreement, and the validity of the oral agreement must still be determined.

C. The doctrine of part-performance does not apply when the material elements of an agreement are uncertain. Consequently, the district court's dismissal was correct.

Crumb argues that the statute of frauds, Idaho Code section 9-503, requires an agreement transferring an interest in real property to be in writing. Generally, an easement is considered to be an encumbrance on real property and therefore must be in writing. Fajen, 96 Idaho at 628, 533 P.2d at 749. Crumb argues because there is no written agreement, Security's claim of an oral easement fails. However, Idaho Code section 9-504 establishes an exception to the statute of frauds, i.e., the writing requirement found in section 9-503, that is a predicate to the transfer of real property. Section 9-504 allows courts "to compel the specific performance of an agreement, in case of part performance thereof." This is termed the doctrine of part-performance. Bauchman-Kingston P'ship, LP v. Haroldsen, 149 Idaho 87, 92, 233 P.3d 18, 23 (2008).

Under the doctrine of part performance, when an agreement to convey real property fails to meet the requirements of the statute of frauds-as in this case where the alleged agreement was not reduced to writing-the agreement may nevertheless be specifically enforced when the purchaser has partly performed the agreement.

Bear Island Water Ass'n, Inc. v. Brown (Bear Island), 125 Idaho 717, 722, 874 P.2d 528, 533 (1994) (citations omitted).

What a party must show to invoke the doctrine of part-performance is essentially two-fold: (1) the underlying agreement must be clearly established and (2) the partial performance must be sufficient, shown by clear and convincing evidence, and directly referable to the established oral agreement. Id. Security has failed to establish an agreement between the LLC and Crumb; thus, the application of the doctrine of part-performance is precluded.

Before an oral agreement to convey land will be specifically enforced, the underlying contract must be proven by clear and convincing evidence. Anderson v. Whipple, 71 Idaho 112, 123, 227 P.2d 351, 358 (1951). Further, the proof must show that the contract is complete, definite and certain in all its material terms, or that it contains provisions which were capable in themselves of being reduced to certainty. Id. The material terms which must be identified in a contract to convey land include the parties to the contract, the subject matter of the contract, the price or consideration, and a description of the property.

Bear Island, 125 Idaho at 722, 874 P.2d at 533 (citations omitted). When an underlying agreement's consideration is found to be ambiguous, the contract is incomplete. See Haroldsen, 149 Idaho at 93, 233 P.3d at 24. That ambiguity in the agreement is enough to undermine the doctrine of part-performance and precludes specific performance. Id.

The district court found Security failed to submit evidence establishing the material term of consideration for the alleged oral agreement. It did not make any findings on the other required material terms, and those terms have not been addressed on appeal. Crumb stated in his declaration that he agreed to grant easements to all of the lots in the subdivisions "upon receipt of payment from [the LLC] in the amount of $200,000." The district court then noted that Security disputed whether the LLC actually agreed to pay the $200,000, leading the court to conclude that the material term of "price" had not been sufficiently proven.

On reconsideration, Security contended that so long as the underlying oral agreement was supported by any adequate consideration (either an unpaid price, or the performance of the construction of the road), despite a factual disagreement regarding price, an enforceable oral contract arose. Security thus argued that the underlying agreement was still supported by consideration even if Crumb was not paid, because Crumb benefitted from the cheaper entrance road that increased lot values. The district court was not convinced, concluding that Security "still [had] not pointed to any evidence in the record which prove[d] the consideration or price term of the alleged oral contract to grant an easement." We agree with the district court's conclusion. On appeal, Security continued to argue that whatever the consideration, the alleged $200,000 or the inherent benefits Crumb gained through the construction of a cheaper road, it was enough to support the underlying oral agreement. This is not sufficient to invoke the doctrine of part-performance.

In order to invoke the doctrine of part-performance, the underlying agreement must be proven by clear and convincing evidence, including the material term of consideration, which must be definite and certain. Bear Island, 125 Idaho at 722, 874 P.2d at 533.

Crumb stated that before he left the LLC, he offered to grant easements to all lots in the subdivision over his property for the payment of $200,000. Crumb noted this offer was accepted by stating that the LLC and he "verbally agreed that upon the receipt of payment in the amount of $200,000" he "would grant easements to the lots in the" subdivision. (Crumb's email corroborates the agreement: "So it was agreed that we would make the entrance for the 200 acres on Frankie's and my 12 acres parcel .... Us [sic] partners on the 200 [the members of the LLC] talked about doing this and agreed Frankie and I would be compensated ....")

Although Security questions the truth and accuracy of the $200,000 payment term, Richard Abbey (a member of the LLC purportedly required to pay Crumb) did not refute this term, and Security has not provided evidence refuting the price to be paid. Thus it is reasonable to infer that an initial oral agreement was made, where the LLC was to pay Crumb at least some amount for an easement over the adjacent Crumb property. However, without an agreed upon sum, there was no agreement. See Haroldsen, 149 Idaho at 93, 233 P.3d at 24. Security argues Crumb gave up the right to receive compensation from the LLC for the easements and use of his land, purportedly because of the 2007-2008 financial crisis. Crumb testified in a 2014 deposition that "[i]t was obvious the economy went in the toilet, and [the LLC] w[as]n't selling any more lots. So I felt that I'd rather have them spend the money on the road to that than pay me." However, Crumb's testimony is not as clear-cut as Security contends. At that time, Crumb left open the possibility of compensation for an easement. Consequently, Security's argument that the agreement was complete fails. On these facts, the district court correctly found that Security "had the burden to prove the material terms of the underlying oral contract and failed to provide evidence of the price/consideration term, so the alleged oral agreement cannot be specifically enforced based on part performance."

"Part performance does not substitute for an incomplete agreement, but instead operates to allow an agreement to be enforced when it does not comply with the statute of frauds." Haroldsen, 149 Idaho at 93, 233 P.3d at 24. Because whatever agreement between the LLC and Crumb was incomplete, the district court correctly granted summary judgment to Crumb. As a result of this determination, it is unnecessary to address Security's remaining arguments, because they are dependent on a viable underlying contract between the LLC and Crumb.

D. The district court did not err in denying Crumb's request for attorney fees.

Crumb's request for attorney fees under Idaho Code section 12-120(3) was denied by the district court. Idaho Code section 12-120(3) statutorily authorizes attorney fees in a case involving a "commercial transaction." In his cross-appeal, Crumb relies on Garner v. Povey, 151 Idaho 462, 470, 259 P.3d 608, 616 (2011) to argue that the district court's denial of attorney fees was in error.

Under Idaho Code section 12-120(3), "[w]hether an action is based on a commercial transaction is a question of law over which this Court exercises free review." Intermountain Real Properties, LLC v. Draw, LLC, 155 Idaho 313, 320, 311 P.3d 734, 741 (2013). Crumb correctly notes that Garner stands for the proposition that "allegations in the complaint that the parties entered into a commercial transaction and that the complaining party is entitled to recover based upon that transaction, are sufficient to trigger the application of I.C. § 12-120(3)." 151 Idaho at 470, 259 P.3d at 616. However, what Crumb fails to recognize is that Garner did not overrule the requirement that the commercial transaction must still be between the litigating parties. See id. (recognizing that Great Plains Equip., Inc. v. Nw. Pipeline Corp., 136 Idaho 466, 473, 36 P.3d 218, 225 (2001) did not award fees under section 12-120(3) because the two parties engaged in the litigation were not the two parties engaged in the commercial transaction). Consequently, the rule from Great Plains still applies: " I.C. § 12-120(3) cannot be invoked if the commercial transaction is between parties only indirectly related, i.e. there was no transaction between the parties ...." See 136 Idaho at 472, 36 P.3d at 224 (italics in original).

Although Crumb may be correct that Security's complaint nominally pleaded a commercial transaction in order to trigger the applicability of section 12-120(3), the underlying commercial transaction was between Crumb and the LLC. Security was not a party to any commercial transaction with Crumb. The LLC's involvement was as a successor in interest to the LLC. Consequently, the district court correctly denied attorney fees to Crumb under section 12-120(3).

The district court also denied Crumb's request for attorney fees based on section 12-121. On appeal, Crumb contends the district court abused its discretion when it found Security's breach of contract claim and fraud claim were indeed frivolous but gave no reason as to why the declaratory judgment claim was not frivolous, thus failing to reach its decision by an exercise of reason. This argument is also unavailing.

"Fees under I.C. § 12-121 are not awarded to a prevailing party as a matter of right but, rather, are subject to the district court's discretion." Garner, 151 Idaho at 467, 259 P.3d at 613. Under section 12-121, "if there is at least one legitimate issue presented, attorney fees may not be awarded even though the losing party has asserted other factual or legal claims that are frivolous, unreasonable, or without foundation." Michalk v. Michalk, 148 Idaho 224, 235, 220 P.3d 580, 591 (2009). "[W]hen a party pursues an action which contains fairly debatable issues, the action is not considered to be frivolous and without foundation." Garner, 151 Idaho at 468, 259 P.3d at 614 (quoting C & G, Inc. v. Rule, 135 Idaho 763, 769, 25 P.3d 76, 82 (2001) ).

The district court recognized this matter as one within its discretion as the abuse of discretion standard requires. Further, the district court stated that the easement claim was "arguable" based on the evidence submitted on summary judgment. The district court did not err in this conclusion. Crumb admitted to an agreement for easements multiple times and even stated he granted easements to "[a]nybody that" wanted one. Security's suit was not frivolous, and therefore an award of attorney fees to Crumb under Idaho Code section 12-121 would be inappropriate.

E. The district court erred in failing to award costs to Crumb.

Crumb requested his filing fee pursuant to Rule 54 of the Idaho Rules of Civil Procedure. As a prevailing party, Crumb is entitled to this cost as a matter of right. I.R.C.P. 54(d)(1)(A) & (C)(i). Given that the district court failed to award this cost, it erred. The case will be remanded to the district court to remedy this oversight.

F. An award of attorney fees on appeal is denied.

Security claims it should be awarded attorney fees on appeal because Crumb's defense on appeal was frivolous and without foundation. Security is apparently requesting fees under Idaho Code section 12-121, as it cites to Taylor v. Taylor, 163 Idaho 910, 422 P.3d 1116 (2018), as corrected (July 31, 2018), which analyzes the applicability of section 12-121. On appeal, fees under section 12-121 may only be awarded to the prevailing party. Id. at 921, 422 P.3d at 1127. Security is not the prevailing party. Accordingly, Security is not entitled to attorney fees on appeal.

Crumb also requests attorney fees on appeal pursuant to section 12-121. Under section 12-121, attorney fees on appeal are "appropriate if the law is well-settled and the appellants have made no substantial showing that the district court misapplied the law." Burns v. Baldwin, 138 Idaho 480, 487, 65 P.3d 502, 509 (2003) (quoting Bowles v. Pro Indiviso, Inc., 132 Idaho 371, 377, 973 P.2d 142, 148 (1999) ). Here, the issues were complicated. Security's predecessor in interest spent roughly $45,000 to build a road to the subdivision. However, there was not a sufficiently definite contract to employ the doctrine of part-performance. Security's pursuit of its appeal was not frivolous. Consequently, Crumb is not entitled to attorney fees under Idaho Code section 12-121.

Crumb also seeks attorney fees on appeal pursuant to Idaho Code section 12-120(3), again arguing the case involved a commercial transaction. That request is likewise denied for the same reason announced above-whatever else can be said of Security's claim, there was never a commercial transaction between Security and Crumb. As a result, Idaho Code section 12-120(3) has no applicability to this case.

IV. CONCLUSION

For the foregoing reasons, the district court's grant of summary judgment to Crumb is affirmed. Its denial of attorney fees to Crumb is likewise affirmed. Its rejection of costs to Crumb is vacated and the case is remanded to remedy the failure to award costs. Attorney fees on appeal are denied. Costs on appeal are awarded to Crumb.

Chief Justice BURDICK, Justices BRODY, BEVAN and MOELLER concur.

Exhibit 1:

Second Amended Plat of Fritz Heath Forest Tracts --------

      For reasons that were never adequately explained, Frankie was not named as a party in this litigation. It is undisputed that the property on which Security seeks to establish an easement is community property owned by Brian Crumb and Frankie McFeron-Crumb. In order for community property to be conveyed, both members of the community must join "in executing the sole agreement, deed or other instrument of conveyance ...." I.C. § 32-912.

      Richard Abbey and Keri Ann Abbey are husband and wife.

      The Second Amended Plat was recorded on May 23, 2005. A copy of the plat is attached to this decision as Exhibit 1. The right side of the plat map has been cut off.

      The CC & Rs do not define "declarant."

      The dates on these maps contradict Abbey's contention that the January 6, 2006, CC & Rs should have had the map with the entrance road traveling through the adjacent Crumb property attached to it. For Abbey's contention to be accurate, INC would have had to have either mapped the entrance road before the CC & Rs were signed on January 6, 2006 (which appears very unlikely given the date of the map), or the CC & Rs would have had to have been amended at some point later in time. An amendment would have had to have been written, recorded, and approved by 75% of the lot owners. There is no record of such an amendment. It is thus more likely that the map that was supposed to be attached to the CC & Rs is not the map Security now contends was meant to be attached to the CC & Rs.

      Ordinarily, a dispute about a material fact would result in summary judgment being denied. However, in this case, Security is obliged to establish, by clear and convincing evidence, a valid oral agreement in order to pursue its claim that part-performance takes the case outside the application of the statute of frauds. Bear Island, 125 Idaho at 722, 874 P.2d at 533. Further, the district court sat as the trier of fact and was entitled to make any inferences reasonably supported by the record. Tiller White, LLC, 160 Idaho at 419, 374 P.3d at 582. Accordingly, to proceed past summary judgment, Security would need to provide evidence, overcoming reasonable inferences, that there was at least a genuine dispute that clear and convincing evidence existed that could prove the underlying agreement. Because Security has not established an agreement between the LLC and Crumb, it may not pursue its claim of part-performance.

      Given Abbey's lack of denial and lack of other evidence, it was reasonable for the district court to infer the LLC agreed to pay Crumb something for the easements. Tiller White, LLC, 160 Idaho at 419, 374 P.3d at 582.


source: Caselaw Access Project

license: Public Domain

text:
    STATE of Kansas, Appellee, v. Scot E. BACON II, Appellant.
    No. 114,951
    Supreme Court of Kansas.
    Opinion filed June 28, 2019.
    Cooper G. Overstreet, of The Swain Law Office, of Lawrence, argued the cause, and Sarah G. Swain and James W. Fuller, legal intern, of the same firm, were on the brief for appellant.
    Lesley A. Isherwood, assistant district attorney, argued the cause, and Marc Bennett, district attorney, and Derek Schmidt, attorney general, were with her on the brief for appellee.
   The opinion of the court was delivered by Stegall, J.:

Scot E. Bacon II petitioned for review of the Court of Appeals' holding that his pro se motion quoting KRPC 1.3 of the Kansas Rules of Professional Conduct (KRPC) (2019 Kan. S. Ct. R. 298) did not trigger the Sedgwick County District Court's duty to inquire into a potential conflict between Bacon and his appointed attorney. We assume error but affirm because Bacon retained new counsel for trial; he does not claim his trial attorney was ineffective; and he has not otherwise identified any prejudice flowing from the error. In short, Bacon got the remedy he sought-new counsel for trial-and on this record, there is no showing of prejudice.

One evening in August 2014, an officer stopped Bacon and a young woman for jaywalking in Sedgwick County. The officer soon discovered that the young woman was a 17-year-old minor and an active runaway. She told the officer that Bacon had driven her to solicit prostitution on Broadway Street the last few nights. Bacon later admitted this was true but insisted that the prostitution was her idea, even though the money went to him.

The State charged Bacon with one count of aggravated human trafficking. See K.S.A. 2014 Supp. 21-5426(b)(4). The district court determined Bacon was indigent and appointed a public defender, James Mamalis, to represent him.

Mamalis continued Bacon's preliminary hearing seven times between August and November 2014. Then on December 1, 2014, Bacon filed a handwritten pro se "Motion for Diligence," which contained a copy of KRPC 1.3 and part of the accompanying comments. See KRPC 1.3 (2019 Kan. S. Ct. R. 298). The motion read in its entirety:

" K.R.P.C. 1.3 Motion For Diligence
"A Lawyer Shall Act with Reasonable diligence and promptness in representing a Client.
"1) A lawyer should pursue a matter [on behalf] of a client despite opposition obstruction or personal inconvenience to the lawyer and may take whatever Lawful and ethical measures are required to vindicate [a] clients cause or endeavor a lawyer should act with commitment and dedication to the interest of the client and with zeal in advocacy upon the Clients behalf. However a lawyer in [sic ] not bound to press for every advantage that might be realized for a client. A Lawyer has professional discretion in determining the means by which a matter should be pursued[.] See Rule 1.2[.] A lawyers work load should be controlled so that each matter can be handled adequately. 2) Perhaps no professional shortcoming is more widely resented than procrastination. A clients interest often can be adversely affected by the passage of time or the change of conditions in extreme instances as when a lawyer overlooks A Statute of limitations the clients legal position May be destroyed even when the cliens [sic ] interests are not affected in substance However unreasonable delay can cause A client needless Anxiety and undermind [sic ] Confidence in the lawyers Trustworthiness. 3) unless the relationship is terminated as provided in rule 1.16 A lawyer should carry through to conclusion all matters under-taken for a client if a lawyers employment is limited to specific matters the relationship terminates when the matter has been resolved."

A week later, Bacon filed the same pro se motion again. The district court mailed a copy of the motion to Mamalis and the State.

The court advised Mamalis by letter, "We await further direction from you as to how to proceed on this matter." But the record suggests no further action was taken.

Mamalis continued Bacon's preliminary hearing three more times before it was conducted in February 2015. After that, Mamalis continued the trial three times until it was finally set for September 2015.

Then Bacon retained private counsel, Sarah Swain, a week and a half before trial. Swain moved to continue the trial but the court denied the motion. A few days before trial, the State amended its complaint by replacing the single count of aggravated human trafficking with two counts of commercial sexual exploitation of a child. See K.S.A. 2014 Supp. 21-6422(a)(4). The case went to trial and the jury found Bacon guilty of one count of commercial sexual exploitation of a child.

Swain later filed a motion for new trial based, in part, on the district court's failure to inquire into Bacon's pro se motions voicing dissatisfaction with Mamalis. The court denied this motion, stating the issue was not timely raised, and regardless, Bacon's pro se documents did not convey a request for new counsel. The court sentenced Bacon to 100 months' imprisonment.

The Court of Appeals affirmed Bacon's conviction. State v. Bacon , No. 114,951, 2017 WL 2403355 (Kan. App. 2017) (unpublished opinion). Relevant here, the panel held Bacon's pro se motions quoting KRPC 1.3 did not allege dissatisfaction with Mamalis. 2017 WL 2403355, at *15-16. The panel reasoned:

"Bacon's letters fall far short of 'an articulated statement of attorney dissatisfaction,' let alone meet the requirement of 'justifiable dissatisfaction.' See Brown , 300 Kan. at 575, 331 P.3d 797. Although courts should liberally construe pro se pleadings to give effect to their content, '[l]iberal rules of construction cannot transform the reality of a pleading's content or the arguments being advanced, even when a litigant is pro se.' State v. Gilbert , 299 Kan. 797, 798, 326 P.3d 1060 (2014). To construct Bacon's letters as alleging dissatisfaction with Mamalis would require this court to deduce Bacon's dissatisfaction based on the fact he quoted the rule about attorney diligence. In other words, to construct Bacon's letters as alleging dissatisfaction with Mamalis would require this court to make up arguments for Bacon. Clearly, this court is prohibited from taking such action.
"Consequently, Bacon never alleged dissatisfaction with Mamalis within the letters sent to the trial court. Because he never alleged dissatisfaction with Mamalis, the trial court never had a duty to inquire about Bacon's dissatisfaction with Mamalis' representation." 2017 WL 2403355, at *15.

We granted review of one issue: whether Bacon's pro se motions triggered the district court's duty to inquire into his dissatisfaction with Mamalis. Bacon asks us to reverse the Court of Appeals and remand for further proceedings.

Our state and federal constitutions guarantee a criminal defendant the right to effective assistance of counsel, and a district court's duty to inquire into a potential conflict with counsel derives from this right. State v. Brown , 300 Kan. 565, 574-75, 577, 331 P.3d 797 (2014). A defendant seeking substitute counsel "must show justifiable dissatisfaction with his or her appointed counsel, which can be demonstrated by showing a conflict of interest, an irreconcilable disagreement, or a complete breakdown in communication between counsel and the defendant." 300 Kan. 565, Syl. ¶ 3, 331 P.3d 797. The defendant "bears the responsibility of providing an articulated statement of attorney dissatisfaction," which will trigger the district court's duty to inquire about the potential conflict. 300 Kan. 565, Syl. ¶ 4, 331 P.3d 797. A district court abuses its discretion when it fails to inquire about a potential conflict made known to it. State v. Bowen , 299 Kan. 339, 346, 323 P.3d 853 (2014).

Bacon claims his "Motion for Diligence" was an articulable statement of dissatisfaction, which triggered the district court's duty to inquire into a potential conflict with Mamalis. Today, we assume without deciding that he is correct. Thus, we assume the district court abused its discretion when it failed to inquire about Bacon's dissatisfaction with Mamalis, as voiced in his pro se motion.

Generally, the failure to inquire warrants a remand to the district court to determine whether a conflict existed, and if so, whether the conflict adversely affected the attorney's performance. See Brown , 300 Kan. at 578, 331 P.3d 797. But here a remand is unnecessary because Bacon obtained the remedy he sought-new counsel-and has not otherwise identified any prejudice flowing from the error. We also note that prejudice is not presumed on these facts. See, e.g., Bowen , 299 Kan. at 346, 323 P.3d 853 (holding prejudice is presumed and automatic reversal is required "only when the circumstances present: [1] multiple concurrent representations; [2] a timely objection, meaning an objection before or during the proceeding; and [3] a failure of the district court to inquire and determine there is no conflict").

Bacon claims an actual conflict existed and the district court should have appointed new counsel for him when he voiced his complaint. That may be so. But there is a problem: Bacon availed himself of self-help and retained Sarah Swain before trial. At most, Swain's trial preparation was delayed. But Bacon does not claim that her performance was ineffective or that the delay caused any trial error. Because Bacon retained new counsel and fails to show how the delay in obtaining new counsel prejudiced him at trial, there is nothing to remedy on remand. See Louis v. State , No. 109,082, 2013 WL 5870165, at *3 (Kan. App. 2013) (unpublished opinion) (holding the defendant could not prevail on his ineffective assistance of counsel claim against his first appointed attorney because the district court appointed a new attorney for trial and the defendant failed to establish prejudice); State v. Edwards , No. 106,278, 2012 WL 6061554, at *6 (Kan. App. 2012) (unpublished opinion) (holding a remand to investigate an ineffective assistance of counsel claim against the defendant's first appointed attorney "would serve no legal purpose" because the district court granted the defendant's request to appoint a new attorney before the hearing).

On the unique facts of this case, Bacon's alleged conflict with Mamalis did not adversely affect Swain's trial performance or otherwise prejudice Bacon in any way. Thus, we affirm the Court of Appeals as right for the wrong reason. See Atkins v. Webcon , 308 Kan. 92, 102, 419 P.3d 1 (2018).

Affirmed.


text:
    DWAGFYS MANUFACTURING, INC., d/b/a The Vapebar Topeka, and Puffs 'n' Stuff, L.L.C., Appellees, v. CITY OF TOPEKA, Kansas, a Municipal Corporation, Appellant.
    No. 119,269
    Supreme Court of Kansas.
    Opinion filed June 28, 2019.
    Mary Feighny, deputy city attorney, argued the cause and was on the brief for appellant.
    Robert E. Duncan II, of Topeka, argued the cause and was on the briefs for appellees.
    Amanda L. Stanley, general counsel, was on the brief for amicus curiae League of Kansas Municipalities.
    Jeffrey A. Chanay, chief deputy attorney general, Toby Crouse, solicitor general, Dwight R. Carswell, assistant solicitor general, Bryan C. Clark, assistant solicitor general, and Derek Schmidt, attorney general, were on the brief for amicus curiae State of Kansas.
    Miriam E.C. Bailey, of Polsinelli, PC, of Kansas City, Missouri, and Dennis A. Henigan, of Washington, D.C., were on the brief for amicus curiae Greater Kansas City Chamber of Commerce, The Campaign for Tobacco-Free Kids, and Certain Other Public Health, Medical, and Community Organizations.
    W. Robert Alderson, of Alderson, Alderson, Conklin, Burghart, Crow & Slinkard, L.L.C., of Topeka, was on the brief for amicus curiae Petroleum Marketers and Convenience Store Association of Kansas.
   The opinion of the court was delivered by Stegall, J.:

The City of Topeka passed Ordinance No. 20099, amending Uniform Public Offense Code § 5.7 (2015) making it unlawful for any person to: "(1) Sell, furnish or distribute cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age; or (2) Buy any cigarettes, electronic cigarettes, tobacco products or liquid nicotine for any person under 21 years of age." The day before the Ordinance was to take effect, DWAGFYS Manufacturing, Inc., d/b/a The Vapebar Topeka, and Puffs 'n' Stuff, L.L.C. sued Topeka seeking to prevent enforcement of the Ordinance. Vapebar argued the Ordinance was unconstitutional under article 12, section 5 of the Kansas Constitution because it impermissibly conflicted with and was preempted by the Kansas Cigarette and Tobacco Products Act, K.S.A. 79-3301 et seq., referred to as the Act. Additionally, Vapebar argued the Ordinance exceeded Topeka's police power authority.

The district court issued a temporary restraining order and eventually a permanent injunction. Topeka appealed and moved to transfer the case to this court. Topeka asked us to consider: (1) whether the Act preempts Topeka from prohibiting retailers from selling cigarettes, electronic cigarettes, tobacco products, and liquid nicotine to persons under the age of 21 years; and (2) whether the Ordinance conflicts with the Act. We granted Topeka's motion to transfer and now hold the Ordinance is not preempted by and does not conflict with the Act. Thus, the Ordinance is a constitutionally valid exercise of Topeka's home rule power under article 12, section 5 of the Kansas Constitution.

ANALYSIS

Topeka sought to join other Kansas cities in making it unlawful for retailers to sell, furnish, or distribute cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to any person under 21 years old. The Ordinance passed by Topeka provided, in part:

"(2) Section 5.7 of UPOC [Uniform Public Offense Code] 2015, relating to selling, giving or furnishing cigarettes or tobacco products to a minor is hereby deleted and the following language is substituted therefor:
"(a) It shall be unlawful for any person to:
(1) Sell, furnish or distribute cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age; or
(2) Buy any cigarettes, electronic cigarettes, tobacco products or liquid nicotine for any person under 21 years of age.
"(b) It shall be a defense to a prosecution under this section if:
(1) The defendant is a licensed retail dealer, or employee thereof, or a person authorized by law to distribute samples;
(2) The defendant sold, furnished or distributed the cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to the person under 21 years of age with reasonable cause to believe the person was of legal age to purchase or receive cigarettes, electronic cigarettes, tobacco products or liquid nicotine; and
(3) To purchase or receive the cigarettes, electronic cigarettes, tobacco products or liquid nicotine, the person under 21 years of age exhibited to the defendant a driver's license, Kansas non driver's identification card or other official or apparently official document containing a photograph of the person and purporting to establish that the person was of legal age to purchase or receive cigarettes, electronic cigarettes, tobacco products or liquid nicotine.
(4) For purposes of this section the person who violates this section shall be the individual directly selling, furnishing or distributing the cigarettes, electronic cigarettes, tobacco products or liquid nicotine to any person under 21 years of age or the retail dealer who has actual knowledge of such selling, furnishing or distributing by such individual or both.
"(c) It shall be a defense to a prosecution under this subsection if:
(1) The defendant engages in the lawful sale, furnishing or distribution of cigarettes, electronic cigarettes, tobacco products or liquid nicotine by mail; and
(2) The defendant sold, furnished or distributed the cigarettes, electronic cigarettes, tobacco products or liquid nicotine to the person by mail only after the person had provided to the defendant an unsworn declaration, conforming to K.S.A. 53-601 and amendments thereto, that the person was 21 or more years of age.
"(d) The words and phrases in Section 5.7 of UPOC 2015 shall have the same meanings as defined in K.S.A. 79-3301, and amendments thereto. 'Liquid nicotine' shall mean the active ingredient of the tobacco plant (nicotine) in liquefied form suitable for the induction of nicotine, whether by nasal spray, ingestion, smoking or other means, into the human body. 'Sale' shall mean any transfer of title or possession or both, exchange, barter, distribution or gift of cigarettes, electronic cigarettes, tobacco products or liquid nicotine with or without consideration.
"(f) [sic ] Violation of this section shall constitute a Class B violation punishable by a minimum fine of $200."

According to Vapebar, the Ordinance is unconstitutional because it "impermissibly conflicts with and is therefore preempted by uniform state law [the Act] under the Home Rule Amendment to the Kansas Constitution, Article 12, § 5 (b)."

The Act, in relevant part, provides:

"It shall be unlawful for any person:
....
"(l) To sell, furnish or distribute cigarettes, electronic cigarettes or tobacco products to any person under 18 years of age.
"(m) Who is under 18 years of age to purchase or attempt to purchase cigarettes, electronic cigarettes or tobacco products.
"(n) Who is under 18 years of age to possess or attempt to possess cigarettes, electronic cigarettes or tobacco products." K.S.A. 2018 Supp. 79-3321(l) - (n).

The district court found "conflicts between the city ordinance ... and state law" and enjoined enforcement of the Act on that basis. As such, the lower court declined to rule on Vapebar's police power claim and dismissed it without prejudice.

The preemption and conflict issues raised in this appeal derive from article 12, section 5 of the Kansas Constitution -also known as the home rule amendment. Taking effect in 1961, the home rule amendment empowered local governments to determine their local affairs and government by ordinance. Kan. Const. art. 12, § 5 (b); Steffes v. City of Lawrence , 284 Kan. 380, 385, 160 P.3d 843 (2007). Following the amendment, cities no longer had to rely on the Legislature to specifically authorize the exercise of a particular power or action via statute. The amendment further provided that the "[p]owers and authority granted cities pursuant to this section shall be liberally construed for the purpose of giving to cities the largest measure of self-government." Kan. Const. art. 12, § 5 (d).

Cities exercise this power through charter or "ordinary" ordinances. Kan. Const. art. 12, § 5 (b) and (c); see also Heim, Home Rule: A Primer , 74 J.K.B.A. 26, 31 (January 2005). Here, the parties agree the Ordinance is an ordinary ordinance. A city may adopt ordinary ordinances when no state law exists on the subject or when a uniform law applicable to all cities exists on the subject but the Legislature has not expressed a clear intent to preempt the field and there is no conflict between the state and local law. City of Wichita v. Hackett , 275 Kan. 848, 851-52, 69 P.3d 621 (2003).

Thus, to determine whether an ordinary ordinance is a valid exercise of home rule power courts must ask: (1) Is there a state law that governs the subject? (2) If there is a state law, is it uniformly applicable to all cities? (3) If there is a uniform state law, does it preempt further action by cities? and (4) If there is a uniform state law but there has been no preemption, does the local regulation conflict with the uniform state law? See Heim, Home Rule Power for the Cities and Counties in Kansas , 66 J.K.B.A. 26, 32 (1997).

The first two questions are not in dispute. The parties agree that the Act and the Ordinance govern the same subject-i.e., the regulation of cigarettes, electronic cigarettes, tobacco products, and liquid nicotine in Kansas. The parties also agree that the Act is a uniform state law applicable to all cities. Thus, we must resolve the latter two questions-preemption and conflict. We exercise unlimited review over constitutional challenges. Steffes , 284 Kan. at 388-89, 160 P.3d 843. To the extent this constitutional inquiry requires us to engage in statutory interpretation, our review is likewise unlimited. Hackett , 275 Kan. at 850, 69 P.3d 621.

Vapebar asks us to find that the Legislature preempted the field of tobacco regulation when it passed the Act. But there is no express statement of preemption in the Act, and since 1961, we have consistently rejected the doctrine of implied legislative preemption. See McCarthy v. City of Leawood , 257 Kan. 566, 584, 894 P.2d 836 (1995) ; City of Junction City v. Griffin , 227 Kan. 332, 336, 607 P.2d 459 (1980) ; Garten Enterprises, Inc. v. City of Kansas City , 219 Kan. 620, Syl. ¶ 3, 549 P.2d 864 (1976) ; City of Junction City v. Lee , 216 Kan. 495, 503, 532 P.2d 1292 (1975) ; City of Lyons v. Suttle , 209 Kan. 735, 738, 498 P.2d 9 (1972). Instead, we have held that legislative intent to reserve exclusive jurisdiction to the state must be clearly manifested by statute-i.e., by expressly prohibiting cities from enacting any type of ordinance related to the state law. Zimmerman v. Board of Wabaunsee County Comm'rs , 289 Kan. 926, 973, 218 P.3d 400 (2009).

To avoid application of this caselaw, Vapebar first points us to our decision in Trimble v. City of Topeka , 147 Kan. 111, 75 P.2d 241 (1938), suggesting that the Legislature may implicitly preempt even without an express statement of intent. Trimble , of course, was decided long before the home rule amendment. Prior to 1961, the general rule was that "the superior power is with the state" and "the city's only power is that delegated to it by the state." Trimble , 147 Kan. at 114, 75 P.2d 241. In other words, unless the statute expressly granted cities a right to act, it was presumed the state had preempted the field. After the amendment, however, cities no longer need a legislative delegation of power. Rather, cities are "empowered to determine their local affairs" and courts are to construe this power "liberally ... for the purpose of giving to cities the largest measure of self-government." Kan. Const. art. 12, § 5 (b) and (d). Legislative silence is no longer sufficient to imply state preemption. Rather, " ' "legislative intent to reserve to the state exclusive jurisdiction to regulate an area must be clearly manifested by statute before it can be held that the state has withdrawn from the cities the power to regulate in the field." ' " McCarthy , 257 Kan. at 584, 894 P.2d 836 (quoting Garten Enterprises, Inc. , 219 Kan. 620, Syl. ¶ 3, 549 P.2d 864 ).

Here, the Act does not manifest a clear intent to preempt cities from action. The language of the Act is plain and unambiguous and we "merely interpret[ ] the language as it appears"-we are "not free to speculate and cannot read into the statute language not readily found there." Steffes , 284 Kan. at 386, 160 P.3d 843. Moreover, the Legislature knows how to expressly preempt city home rule power but did not do so here. See, e.g., K.S.A. 2018 Supp. 75-5174(a) ("The power to regulate, license and tax the management, operation and conduct of and participation in games of bingo and raffles is hereby vested exclusively in the state ." [Emphasis added.] ). In fact, some provisions of the Act seem to contemplate cities enacting ordinances covering at least some of the same conduct. See K.S.A. 2018 Supp. 79-3393(c) ("Acts classified as cigarette or tobacco infractions by K.S.A. 79-3322 [d], and amendments thereto, shall be classified as ordinance cigarette or tobacco infractions by those cities adopting ordinances prohibiting the same acts. The fine for an ordinance cigarette or tobacco infraction shall be $25.").

Vapebar suggests that perhaps the Legislature's enactment of a "comprehensive scheme" of regulation is sufficient to clearly manifest an intent to preempt the field. We disagree. We have already rejected the idea that the Legislature's adoption of a comprehensive scheme can establish a clear intent to preempt the field. See Lee , 216 Kan. at 502-04, 532 P.2d 1292. In Lee , the defendants relied on a Judicial Council comment that described the state weapons control act as " 'a comprehensive weapons control act.' " 216 Kan. at 503, 532 P.2d 1292. Rejecting this argument for preemption, we held that "[l]egislative intent to preempt is not to be so simplistically found. ... Absent clear expression to that effect, we cannot conceive that the legislature intended by its enactment, comprehensive though it be, to exclude cities' traditional resources" from protecting its citizens' well-being. 216 Kan. at 503, 532 P.2d 1292.

Next, Vapebar directs us to State ex rel. Schneider v. City of Kansas City , 228 Kan. 25, 612 P.2d 578 (1980), for authority. Our decision in Schneider , however, is distinguishable because it only questioned whether the home rule amendment authorized Kansas City to enforce its building permit and code ordinances upon the Board of Regents, which derives its authority from article 6, section 2(b) of the Constitution. Given these unique circumstances and the interplay between the two constitutional provisions, the Schneider court limited its holding "to the parties and factual situation before us." Schneider , 228 Kan. at 33, 612 P.2d 578 ; see also State ex rel. Kline v. Board of Comm'rs of Unified Gov't of Wyandotte Co./KC , 277 Kan. 516, 85 P.3d 1237 (2004) (refusing to recognize Schneider as applicable precedent). Schneider is inapplicable here.

In a final bid for implied preemption, during oral argument, Vapebar cited our decision in Blevins v. Hiebert , 247 Kan. 1, 795 P.2d 325 (1990). The Blevins court held:

"An enabling act is uniformly applicable to all cities or counties if it authorizes all cities or counties to perform certain acts. Such statutes are state law and preempt the field of their application without the use of preemptive language unless there are express exceptions in the statutes or unless the statutes pertain to police power regulations." 247 Kan. 1, Syl. ¶ 4, 795 P.2d 325.

This language may suggest Kansas has recognized the doctrine of implied legislative preemption except where police powers were concerned. See 66 J.K.B.A. at 36.

Our decisions since Blevins have not treated it as such. Of the eight cases that cite Blevins , none repeat Blevins ' use of implied legislative preemption. 74 J.K.B.A. at 31 (citing David v. Board of Norton County Comm'rs , 277 Kan. 753, 760, 89 P.3d. 893 [2004] ; Hackett , 275 Kan. 848, 69 P.3d 621 ; City of Junction City v. Cadoret , 263 Kan. 164, 170, 946 P.2d 1356 [1997] ; McCarthy , 257 Kan. at 584, 894 P.2d 836 ; Johnson County Water Dist. No. 1 v. City of Kansas City , 255 Kan. 183, 193, 871 P.2d 1256 [1994] ; Dillon Stores v. Lovelady , 253 Kan. 274, 279, 855 P.2d 487 [1993] ; Executive Aircraft Consulting, Inc. v. City of Newton , 252 Kan. 421, 425, 845 P.2d 57 [1993] ; Blevins v. Board of Douglas County Comm'rs , 251 Kan. 374, 376, 834 P.2d 1344 [1992] ).

Instead, we have recognized that the " '[b]road language in Blevins unsettled the principle' " of requiring a clearly manifested legislative intent by statute to preempt the field. McCarthy , 257 Kan. at 584, 894 P.2d 836. And cases since Blevins continue to require a clear statement of legislative intent in order to limit home rule power. See, e.g., Wyandotte Co./KC , 277 Kan. at 533-35, 85 P.3d 1237 ; Kansas City Renaissance Festival Corp. v. City of Bonner Springs , 269 Kan. 670, 673, 8 P.3d 701 (2000) ; McCarthy , 257 Kan. at 584, 894 P.2d 836. Based on these "cases decided since Blevins , this court seems to be restricting it to its facts." 257 Kan. at 584, 894 P.2d 836. Here too, we restrict Blevins to its facts and disapprove any indication in prior unclear language that we are adopting the doctrine of implied preemption.

With no language manifesting a clear intent to preempt the field in the Act, the Act does not preempt the Ordinance. But preemption is not the last restriction on a city's home rule power. In order to clear the final hurdle, the Ordinance must not conflict with state law. 257 Kan. at 570-71, 894 P.2d 836 ; see State v. Jenkins , 295 Kan. 431, 437, 284 P.3d 1037 (2012) (if a state statute applies uniformly to all cities and the state has not preempted the field, a city may adopt an ordinance that does not conflict with state law). We have emphasized that " '[a] city ordinance should be permitted to stand unless an actual conflict exists between the ordinance and a statute.' " McCarthy 257 Kan. at 569, 894 P.2d 836 (quoting Moore v. City of Lawrence, 232 Kan. 353, Syl. ¶ 4, 654 P.2d 445 [1982] ); see Heartland Apartment Ass'n v. City of Mission , 306 Kan. 2, 9, 392 P.3d 98 (2017). In determining whether an actual conflict exists between an ordinance and a statute, we apply the well-cited conflict test articulated in Lee , 216 Kan. at 501, 532 P.2d 1292 :

"[W]hether the ordinance permits or licenses that which the statute forbids or prohibits that which the statute authorizes; if so, there is conflict, but where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition but not counter to the prohibition in the statute, and the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized, there is no conflict."

As with all things home rule, our consideration of whether there is a conflict must be informed with the constitutional command to "liberally construe[ ]" the home rule power so as to give "to cities the largest measure of self-government." Kan. Const. art. 12, § 5.

Vapebar argues that the Ordinance conflicts with the Act because the Ordinance prohibits what the Act authorizes. If there was an express authorization in the Act for people under the age of 21 to buy tobacco products, or an express authorization to sell tobacco to those people, Vapebar would have a point. But there is no express authorization. The Act is silent with respect to people who are 18, 19, or 20 years old. In the face of such silence, "where both an ordinance and the statute are prohibitory and the only difference is that the ordinance goes further in its prohibition ... there is no conflict." 216 Kan. at 501, 532 P.2d 1292.

For example, in Lee we found an ordinance outlawing the carrying of both concealed and unconcealed weapons did not conflict with a state statute outlawing only the carrying of concealed weapons. 216 Kan. at 500-01, 532 P.2d 1292. The court found the essential difference to be that "the ordinance denounces carrying on one's person a dangerous knife or firearm ... while the statute makes such carrying criminal only where the weapons are concealed." 216 Kan. at 500, 532 P.2d 1292. The court held that no conflict existed between the statute and ordinance because the ordinance was merely "more restrictive" than the statute. 216 Kan. at 501, 532 P.2d 1292. And a more restrictive ordinance will stand as long as "the city does not attempt to authorize by the ordinance that which the legislature has forbidden, or forbid that which the legislature has expressly authorized ." ( Emphasis added.) 216 Kan. at 501, 532 P.2d 1292.

More recently in Hackett , we reiterated the Lee test and found an ordinance criminalizing the operation of a bicycle while intoxicated did not conflict with the state law that criminalized motor vehicle DUIs. There, the state statute at issue defined "vehicle" to exclude " 'devices moved by human power .' " 275 Kan. at 850, 69 P.3d 621. The City adopted additional traffic regulations that prohibited operation of a bicycle while under the influence of alcohol. In holding this ordinance valid, the court ruled the statute did not expressly authorize the operation of bicycles by those intoxicated. Rather, the statute merely failed to proscribe it. 275 Kan. at 851, 69 P.3d 621.

Similarly, the Ordinance and the Act coexist without conflict. The Act does not "expressly authorize" what the Ordinance prohibits-the selling and buying of tobacco products to and by 18-, 19-, and 20-year-olds. The Act simply fails to proscribe it. Thus, the Ordinance does not conflict with the Act because the Ordinance does not prohibit what the Act expressly authorizes. The Ordinance merely enlarges a provision of the statute by requiring more than the statute-a practice we have repeatedly treated as creating no conflict. See, e.g., City of Wichita v. Basgall , 257 Kan. 631, 635, 894 P.2d 876 (1995)

("Where a municipal ordinance merely enlarges ... the provisions of a statute by requiring more than is required by the statute, there is no conflict between the two unless the legislature has limited the requirements for all cases to its own prescription."); Leavenworth Club Owners Assn v. Atchison , 208 Kan. 318, 320-22, 492 P.2d 183 (1971) (upholding more stringent local closing hours).

The Ordinance prohibiting retailers from selling, furnishing, or distributing cigarettes, electronic cigarettes, tobacco products, or liquid nicotine to any person under 21 years old is a constitutional exercise of Topeka's home rule power. The Act does not preempt cities from regulating tobacco products, and the Ordinance does not conflict with the Act by imposing greater restrictions. Because the Ordinance is a constitutional exercise of the City's home rule power, we reverse the district court's permanent injunction. Vapebar remains free to pursue any of its claims previously dismissed without prejudice in a separate action should it choose to do so.

Reversed.

Luckert and Johnson, JJ., not participating.

Karen Arnold-Burger, Chief Judge of the Kansas Court of Appeals, assigned.

Michael J. Malone, Senior Judge, assigned.

      REPORTER'S NOTE: Chief Judge Arnold-Burger, of the Kansas Court of Appeals, was appointed to hear case No. 119,269 vice Justice Luckert under the authority vested in the Supreme Court by K.S.A. 2018 Supp. 20-3002(c).

      REPORTER'S NOTE: Senior Judge Malone was appointed to hear case No. 119,269 vice Justice Johnson under the authority vested in the Supreme Court by K.S.A. 20-2616.


text:
    STATE of Kansas, Appellee, v. Michael F. RUSS, Appellant.
    No. 115,111
    Supreme Court of Kansas.
    Opinion filed June 28, 2019.
    Kai Tate Mann, of Kansas Appellate Defender Office, was on the briefs for appellant.
    Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
   The opinion of the court was delivered by Biles, J.:

Michael F. Russ appeals the sentencing court's classification of his prior misdemeanor convictions for violating a City of Wichita municipal ordinance as person offenses to calculate his criminal history score. He claims a Kansas Court of Appeals panel erred by (1) looking beyond the most comparable Kansas offense, i.e., domestic battery, to analyze his Wichita municipal ordinance domestic battery convictions; and (2) declining to address as moot an issue concerning his prior conviction of failure to comply with bond restrictions. See State v. Russ , No. 115,111, 2017 WL 1821215, at *4 (Kan. App. 2017) (unpublished opinion). We affirm.

We hold the Wichita domestic battery ordinance is narrower than the comparable state statute, so the panel did not err when it held the district court properly classified the municipal violations as person offenses. See State v. Wetrich , 307 Kan. 552, 561, 412 P.3d 984 (2018) (holding that to be "comparable" under K.S.A. 2017 Supp. 21-6811(e)(3), "the out-of-state crime cannot have broader elements than the Kansas reference offense"). As to the second error claimed, we hold the panel correctly determined the issue was moot because it could have no practical effect on the outcome. See State v. Montgomery , 295 Kan. 837, Syl. ¶ 3, 286 P.3d 866 (2012) ;

State ex rel. Sanborn v. Bissing , 210 Kan. 389, 397, 502 P.2d 630 (1972).

FACTUAL AND PROCEDURAL BACKGROUND

Russ pleaded guilty to attempted second-degree murder, a severity level 3 person felony, for acts committed in January 2015. A presentence investigation report recommended a B criminal history score. See K.S.A. 2016 Supp. 21-6809 (B criminal history score requires two person felonies). It reflected several prior convictions, including six Wichita municipal violations classified as person misdemeanors, five of which were eligible for conversion to a felony. See K.S.A. 2016 Supp. 21-6811(a) (providing every three prior convictions for class A and B person misdemeanors to be rated as a person felony).

The report further recommended aggregating two 1998 domestic battery convictions and one 1998 conviction for failure to comply with bond restrictions and converting them into one person felony. It did not convert the other two eligible convictions-a 2015 domestic battery conviction and a 2015 conviction for violation of a protective order-leaving them listed as person misdemeanor offenses. Russ did not object to the criminal history score recommendation.

The district court sentenced him to 206 months in prison, which was the mitigated presumptive sentence. See K.S.A. 2016 Supp. 21-6804(a). Russ appealed, arguing the district court erred by classifying four of his prior municipal ordinance convictions as person offenses: two 1998 domestic battery convictions, a 2015 domestic battery conviction, and his 1998 conviction for failure to comply with bond restrictions. Pertinent to our review, he claimed the domestic battery ordinances were broader than the counterpart Kansas statute.

Russ argued the Kansas domestic battery statute prohibited only battery by a family or household member against a family or household member, while the 2012 ordinance also prohibited battery between persons "in a 'dating relationship,' " and the 1996 ordinance prohibited battery among "domestic partners." Compare K.S.A. 2014 Supp. 21-5414(a), with Wichita Mun. Code § 5.10.025 (2012), and Wichita Mun. Code § 5.10.025 (1996). Implicitly relying on the simple battery statute, K.S.A. 2018 Supp. 21-5413(a), the panel reasoned that "[r]egardless of the relationship between the batterer and the victim battered, a battery in Kansas is a person offense." Russ , 2017 WL 1821215, at *4.

The panel further held Russ' challenge to the failure-to-comply-with-bond-restrictions conviction's classification was moot. It reasoned that even if the conviction was classified differently, his criminal history score would be the same because there would be enough remaining conversion-eligible misdemeanor convictions to be aggregated and scored as a person felony. 2017 WL 1821215, at *4.

Russ petitioned for review, which this court granted. Jurisdiction is proper. K.S.A. 20-3018(b) (providing for petitions for review of Court of Appeals decisions); K.S.A. 60-2101(b) (Supreme Court has jurisdiction to review Court of Appeals decisions upon petition for review).

CLASSIFYING THE DOMESTIC BATTERY MUNICIPAL ORDINANCE VIOLATIONS

Classification of prior offenses for criminal history purposes involves interpretation of the revised Kansas Sentencing Guidelines Act, K.S.A. 2018 Supp. 21-6801 et seq., and statutory interpretation is a question of law subject to this court's unlimited review. Wetrich , 307 Kan. at 555, 412 P.3d 984. Russ argues the panel erred by affirming the sentencing court's classification of his Wichita domestic battery convictions as person misdemeanors.

Under the KSGA, when calculating a defendant's criminal history score, a sentencing court must consider and score prior "convictions and adjudications for violations of municipal ordinances ... which are comparable to any crime classified under the state law of Kansas as a person misdemeanor, select nonperson class B misdemeanor or nonperson class A misdemeanor." K.S.A. 2018 Supp. 21-6810(a). The KSGA further provides: "Every three prior adult convictions or juvenile adjudications of class A and class B person misdemeanors in the offender's criminal history, or any combination thereof, shall be rated as one adult conviction or one juvenile adjudication of a person felony for criminal history purposes." K.S.A. 2018 Supp. 21-6811(a).

In Wetrich , 307 Kan. at 562, 412 P.3d 984, the court held "comparable offenses" in K.S.A. 2017 Supp. 21-6811(e)(3) means "the elements of the out-of-state crime cannot be broader than the elements of the Kansas crime. In other words, the elements of the out-of-state crime must be identical to, or narrower than, the elements of the Kansas crime to which it is being referenced." Similar to K.S.A. 2017 Supp. 21-6811(e)(3), the statute relevant to the current case requires the municipal ordinance convictions be "comparable" to any Kansas misdemeanor. See K.S.A. 2018 Supp. 21-6810(a). Accordingly, when the code does not have a comparable offense, the municipal ordinance conviction is classified as a nonperson crime.

Neither party mentions whether we should extend Wetrich 's statutory interpretation of the term "comparable offense" as used in K.S.A. 2017 Supp. 21-6811(e)(3) to the same term used in K.S.A. 2018 Supp. 21-6810(a) for scoring municipal ordinance violations. But that is the logical result for the same reason Wetrich adopted the identical-or-narrow rule: "further[ing] the KSGA's goal of an even-handed, predictable, and consistent application of the law across jurisdictional lines." 307 Kan. at 561-62, 412 P.3d 984 ; cf. State v. Murdock , 309 Kan. 585, 591, 439 P.3d 307 (2019) ("[A] defendant will receive the benefit of any change in the law that occurs while the direct appeal is pending.").

Applying Wetrich to our case, the panel correctly held Russ' 1998 and 2015 domestic battery ordinance violations were person offenses. K.S.A. 2018 Supp. 21-5413(a) defines battery as "[k]knowingly or recklessly causing bodily harm to another person; or ... knowingly causing physical contact with another person when done in a rude, insulting or angry manner." Considering how broadly the Kansas statute defines a simple battery, acts constituting an ordinance violation under the 2012 and 1996 versions of Wichita Mun. Code § 5.10.025 would always violate the state statute, and its violation is a person offense. See K.S.A. 2018 Supp. 21-5413(a), (g)(1). The only difference between the ordinances and the statute is the specific requirement of the relationship between the batterer and the battered, which makes the scope of the ordinance's proscribed acts narrower, not broader.

MOOTNESS

The panel correctly declined to address the matter (question/issue/claim) regarding Russ' prior conviction of failure to comply with bond restriction. See Russ , 2017 WL 1821215, at *4 ; Bissing , 210 Kan. at 397, 502 P.2d 630 (issue moot when judgment would be of no consequence). Since all three domestic batteries were properly scored as person misdemeanors, his criminal history score is certain to include a misdemeanor-conversion person felony. See K.S.A. 2018 Supp. 21-6811(a). Regardless of the failure to comply with bond restrictions' classification, Russ' criminal history score remains B. See Sierra Club v. Moser , 298 Kan. 22, 60, 310 P.3d 360 (2013) (declining to address issues mooted by other parts of decision); Montgomery , 295 Kan. 837, Syl. ¶ 3, 286 P.3d 866 ("An appeal will not be dismissed as moot unless it clearly and convincingly appears that the actual controversy has ceased and the only judgment which could be entered would be ineffectual for any purpose.").

Affirmed.