source: Caselaw Access Project

license: Public Domain

text:
    KUALOA RANCH, INC., Plaintiff/Counterclaim-Defendant/Appellee, v. Kuulei N. MITCHELL, Defendant/Cross-Claim Defendant/Appellant, and Naholowaa(k) aka Naholoaa(k); Layla U. Kaehu, et al., Defendants/Cross-Claim Defendants/Appellees
    NO. CAAP-15-0000737
    Intermediate Court of Appeals of Hawai'i.
    July 31, 2019
    On the briefs:
    Walter R. Schoettle, Honolulu, for Defendant/Cross-Claim Defendant/Appellant.
    Philip J. Leas, W. Keoni Shultz, Nathan T. Okubo, (Cades Schutte LLP), Honolulu, for Plaintiff/Counterclaim-Defendant/Appellee.
   GINOZA, CHIEF JUDGE, FUJISE AND REIFURTH, JJ.

OPINION OF THE COURT BY GINOZA, C.J.

This appeal arises from a quiet title action. Defendant-Appellant Kuulei N. Mitchell (Mitchell) appeals from the "Taxation of Costs as to Defendants Stella R. Maka; Amelia Gora; Mary Ellen K. Malabey; Layla U. Kaehu; Phoebe P. Lopes; Madeline L. Maiava; Gail H. Watts; Filsann K. Kamakeaina; Clara Gonzaga; May Warren; Linda K.H. Kamai; Lily Burke; Kuulei N. Mitchell; Layla U. Burke; Darlene K. Vaai; Lyle K. Rodrigues; Melvin K. Rodrigues; Leilehualani K. Kane; Wincyceslau D. Lorenzo aka Kamehameha VI; and Dawn K. Wasson" (Taxation of Costs), entered by the Clerk of the Circuit Court of the First Circuit (Circuit Court Clerk) on September 11, 2015, in favor of Plaintiff-Appellee Kualoa Ranch, Inc. (Kualoa Ranch) in the amount of $26,088.96. Pursuant to the Taxation of Costs, the Circuit Court of the First Circuit (Circuit Court) subsequently entered a Judgement for Costs on October 19, 2015, in the amount of $26,088.96 in favor of Kualoa Ranch and against the twenty defendants identified in the Taxation of Costs, including Mitchell (Judgment for Costs).

On appeal, Mitchell asserts that this court should recognize plain error by the Circuit Court in awarding costs in the amount of $26,088.96 against her. Mitchell acknowledges that she did not object to the award of costs in the Circuit Court. Thus, the Circuit Court was not presented with Mitchell's arguments that have been raised on appeal and did not have an opportunity to consider those arguments. However, Mitchell contends and we agree that given the circumstances of this case, equity and fairness require that under the plain error standard we vacate the Taxation of Costs and Judgment for Costs against Mitchell.

We hold that it was plain error to enter the Taxation of Costs and the Judgment of Costs against Mitchell in the amount of $26,088.96 because the existing record clearly demonstrates that: (1) some of the costs taxed against Mitchell were related to defendants against whom default judgment was obtained and thus Kualoa Ranch was required to bear those costs under Hawaii Revised Statutes (HRS) § 669-6 (2016) ; and (2) significant cost items taxed against Mitchell are unrelated to her involvement in the case, where she was one of over two hundred defendants ultimately identified in the judgment for this quiet title action. We remand for further proceedings consistent with this opinion.

I. Background

A. Procedural History Regarding Claims

This case arises from a quiet title action brought by Kualoa Ranch, in which it named one hundred sixty-two defendants in its First Amended Complaint, seeking to establish its fee simple title to three parcels of land at Hakipu'u, Ko'olaupoko, City and County of Honolulu, State of Hawai'i. The three parcels identified in Kualoa Ranch's First Amended Complaint were: "Apana 1 of Land Commission Award No. 6118, to NAHOLOWAA (k), within the land identified as Tax Map Key No. (1) 4-9-003-008" (Parcel 8 ); "Apana 2 of Land Commission Award No. 6118, to NAHOLOWAA (k), within the land identified as Tax Map Key No. (1) 4-9-001-010" (Parcel 10 ); and "Apanas 1 and 2 of Land Commission Award No. 3059 to KAUI (k), within the land identified as Tax Map Key No. (1) 4-9-001-013" (Parcel 13 ).

Mitchell was not named in the First Amended Complaint, but she appeared in the case in response to a summons by publication. Mitchell made her first appearance at a return hearing held by the Circuit Court on April 30, 2013. Also on April 30, 2013, Mitchell along with several other individuals described as "Sovereign NAHOLOWAA (k) aka NAHOLOAA and heirs including: ... Kaui (K) and hiers [sic]" filed a joint response to Kualoa Ranch's First Amended Complaint.

On May 16, 2013, Mitchell filed another document in the Circuit Court asserting that she is a descendant of the Kaui lineage and one of the heirs to the Kaui land. This indicated a claim with respect to Parcel 13.

On August 8, 2013, Kualoa Ranch filed a Motion for Summary Judgment as to Parcel 13, stating, inter alia, that "[a]ll persons have defaulted and thereby relinquished possible claims, except for Pro se Defendants August K. Cambra, Jr., Stella R. Maka, Amelia Gora, John H. Kahele, Mary Ellen K. Malabey, Loren Andrade, May Villacruzes, Verna Schubert, Juliana Sampoang, Layla U, Kaehu, Phoebe P. Lopes, Madeline L. Maiava, Gail H. Watts, Filsann K. Kamakeaina, Clara Gonzaga, Lizzie Kaima Kaina Davis, May Warren, Linda K.H. Kamai, Lily Burke, Kuulei N. Mitchell, Layla U. Burke, James Pua Kaai, Darlene K. Vaai, Lyle K. Rodrigues, Melvin K. Rodrigues, Leilehualani K. Kane, Wincyceslau D. Lorenzo aka Kamehameha VI, Dawn K. Wasson, Priscilla Luka Ululani Kahele, Karen Lehia Nihipali, Shirley Nalani Vasquez and Herbert Paku[.]" (Emphasis added). Mitchell and other defendants filed documents in opposition to the summary judgment motion.

On December 31, 2013, Kualoa Ranch filed a motion for summary judgment regarding Parcels 8 and 10. Mitchell opposed this motion as well.

On January 16, 2014, the Circuit Court issued an order granting summary judgment in favor of Kualoa Ranch and against those claiming title to Parcel 13, including Mitchell. Mitchell filed two motions for reconsideration of the January 16, 2014 summary judgment order, both of which were denied.

On March 28, 2014, the Circuit Court issued an order granting summary judgment in favor of Kualoa Ranch regarding Parcels 8 and 10 and against most remaining defendants, including Mitchell. The order indicated that the claims of two other defendants, Priscilla L.U. Kahele and Hiram K. Kahele, Jr., would be resolved at a later time. Subsequently, the record reflects that the Circuit Court resolved the claims regarding Priscilla L.U. Kahele and Hiram K. Kahele, Jr.

On November 26, 2014, the Circuit Court entered its "Final Judgment" in favor of Kualoa Ranch and against two hundred nine defendants who were specified by name in the judgment, including Mitchell. Mitchell did not appeal from the Final Judgment.

B. Taxation of Costs and Judgment for Costs

On September 4, 2015, over nine months after entry of the Final Judgment, Kualoa Ranch filed a Notice of Taxation of Costs against twenty specified defendants, including Mitchell, seeking costs in the amount of $26,088.96. Attached to the Notice of Taxation of Costs was an Exhibit "A", which consists of a table summarizing and describing the costs sought by Kualoa Ranch, as well as numerous pages of supporting documentation. The requested costs, as summarized in Exhibit "A", included such items as: multiple entries for sheriff's fees related to service, or attempted service, upon identified individuals; a publication fee for notice of summons in the amount of $2,413.61; copying and other fees to obtain documents at various locations such as the Bureau of Conveyances, the Circuit Court, and the State Archives; fees to obtain certified copies of death certificates from the Hawaii Department of Health; translation services fees; multiple invoices for sheriff's fees related to evictions; costs related to searches for defendants' addresses; and copying and postage costs for numerous items, including the return of service and proof of service on numerous defendants. The Notice of Taxation of Costs did not specify or seek to apportion the costs related to or among the defendants named in the notice. A declaration by Kualoa Ranch's counsel in support of the Notice of Taxation of Costs states that the case is a quiet title action under HRS Chapter 669 and that under HRS § 669-6, costs shall not be awarded against defendants who disclaim or allow entry of default by not answering. Counsel for Kualoa Ranch thus asserted that Kualoa Ranch "seeks taxation of costs only against the following defendants who appeared and opposed [Kualoa Ranch's] claims in this case", and identified by name twenty defendants, including Mitchell.

On September 11, 2015, the Circuit Court Clerk entered the Taxation of Costs against the twenty defendants identified in Kualoa Ranch's Notice of Taxation of Costs, including Mitchell, in the requested amount of $26,088.96. Like the Notice of Taxation of Costs submitted by Kualoa Ranch, the Taxation of Costs entered by the Circuit Court Clerk does not specify any apportionment of the costs among the defendants identified therein, and simply states: "[p]ursuant to [Kualoa Ranch's] Notice of Taxation of Costs and Bill of Costs filed September 4, 2015, costs are taxed in favor of [Kualoa Ranch] against [the twenty identified defendants] in the amount of $26,088.96."

The record reflects that there was no objection to the Taxation of Costs. On October 6, 2015, Mitchell filed her notice of appeal from the Taxation of Costs, which resulted in this appeal.

On October 19, 2015, the Circuit Court entered the Judgment for Costs, which states in relevant part: "[p]ursuant to the Taxation of Costs, filed September 11, 2015, judgment is hereby entered in favor of [Kualoa Ranch] against [the twenty identified defendants] for recovery of $26,088.96 for costs."

II. Standard of Review

Typically, with respect to taxation of costs, the following standard of review applies:

"The award of a taxable cost is within the discretion of the [circuit] court and will not be disturbed absent a clear abuse of discretion." Wong v. Takeuchi, 88 Hawai'i 46, 52, 961 P.2d 611, 617 (1998) (internal quotation marks and citation omitted). "An abuse of discretion occurs when the [circuit] court has clearly exceeded the bounds of reason or disregarded rules or principles of law or practice to the substantial detriment of a party litigant." Hac v. Univ. of Hawai'i, 102 Hawai'i 92, 101, 73 P.3d 46, 55 (2003) (internal quotation marks and citations omitted).

Pulawa v. GTE Hawaiian Tel, 112 Hawai'i 3, 10-11, 143 P.3d 1205, 1212-13 (2006).

However, because Mitchell did not object to or challenge the Taxation of Costs in the Circuit Court, we review for plain error.

In civil cases, the plain error rule is only invoked when "justice so requires." We have taken three factors into account in deciding whether our discretionary power to notice plain error ought to be exercised in civil cases: (1) whether consideration of the issue not raised at trial requires additional facts; (2) whether its resolution will affect the integrity of the trial court's findings of fact; and (3) whether the issue is of great public import.

Montalvo v. Lapez, 77 Hawai'i 282, 290, 884 P.2d 345, 353 (1994) (quoting State v. Fox, 70 Haw. 46, 56 n.2, 760 P.2d 670, 676 n.2 (1988) ).

III. Discussion

A. Invoking Plain Error Review

The first factor for considering whether to invoke plain error review in a civil case is "whether consideration of the issue not raised at trial requires additional facts." 77 Hawai'i at 290, 884 P.2d at 353. This factor is "based on the tenet that an appellate court should not review an issue based upon an undeveloped factual record." Id. at 290-91, 884 P.2d at 353-54 (citation omitted). In this case, the record is more than sufficiently developed to address whether the $26,088.96 in costs requested by Kualoa Ranch should have been taxed against Mitchell. Exhibit "A" attached to Kualoa Ranch's Notice of Taxation of Costs provides a detailed summary of the costs incurred and sought by Kualoa Ranch. Further, with respect to many of the cost items, Exhibit "A" identifies the individual defendant or defendants to whom the cost item pertains.

With regard to the second factor -- whether resolution of the issue will affect the integrity of the trial court's findings of fact --the Circuit Court did not make any findings of fact as to the taxation of costs. Rather, the Circuit Court Clerk entered the Taxation of Costs, and the Circuit Court subsequently entered the Judgment for Costs. There are no findings of fact by the Circuit Court which could be affected by the instant appeal, and thus the second factor for considering plain error review does not apply. See Alvarez Family Tr. v. Ass'n of Apartment Owners of Kaanapali Alii, 121 Hawai'i 474, 491, 221 P.3d 452, 469 (2009) (citation omitted).

The third factor is whether the issue is of great public import. Mitchell makes various arguments, including that large awards of costs to plaintiffs in quiet title actions would have a chilling effect on the willingness of defendants to assert their adverse claims in such actions. Mitchell further cites to HRS § 669-6, arguing that the Legislature provided that defendants who allow default to be entered against them shall not be assessed costs and thus the costs for serving those defendants should not be assessed against other defendants who appear and defend their claims. Mitchell points out the award of costs against her was particularly unfair where there were hundreds of named and unnamed defendants, and that the costs for service of process claimed by Kualoa Ranch was $6,220.53, all of which except $149.97 was incurred before Mitchell made her appearance in the case on April 30, 2013.

We agree with Mitchell that addressing the award of costs against her in this quiet title action is of great public import. We conclude it is of public importance to address the application of HRS § 669-6, a statute for which only predecessor versions were briefly addressed in dicta over a hundred years ago. See Lahaina Agric. Co. v. Poaha, 18 Haw. 494 (Haw. Terr. 1907) ; Hakalau Plantation Co. v. Kahuena, 14 Haw. 189 (Haw. Terr. 1902) ; see also Earl M. Jorgensen Co. v. Mark Constr., Inc., 56 Haw. 466, 476, 540 P.2d 978, 985 (1975) (concluding that plain error review was warranted where, as to the third factor, the issue on appeal was one of first impression and called for the interpretation and elucidation of a statute). Further, determining title to land in quiet title actions is of great importance, and our courts have recognized that litigation related to land title carries significant implications. See State v. Zimring, 52 Haw. 472, 479 P.2d 202 (1970), reh'g denied, 52 Haw. 526, 479 P.2d 202 (1970) (recognizing the case presented an issue of vast public importance regarding title to land created by volcanic eruption); Ainini v. Kala, 6 Haw. 16, 17 (Haw. Kingdom 1869) ("This is an important case, as are all cases involving questions concerning titles in land."). As such, it is important to address the costs that can be assessed against defendants in a quiet title action, because the potential assessment of costs can directly affect the willingness and ability of defendants to engage in such litigation.

In sum, the first and third factors in considering whether to invoke plain error review weigh in favor of such review in this appeal. The second factor does not apply. Moreover, as expressed by the Hawai'i Supreme Court, "the plain error doctrine is based on notions of equity and justice." Montalvo, 77 Hawai'i at 291, 884 P.2d at 354 (citation omitted). In our view, considering all of the circumstances in this case, notions of equity and justice require that we invoke plain error review for Mitchell's appeal.

B. The Award of Costs Must Be Vacated

The Taxation of Costs against Mitchell includes costs that are clearly related to defendants who defaulted in the case and against whom judgment was entered. Under HRS § 669-6, we hold that Kualoa Ranch must bear those costs and cannot recover them from Mitchell.

HRS Chapter 669 deals with actions to quiet title. In turn, HRS § 669-6 provides: "If in the action the defendant disclaims in the defendant's answer any interest or estate in the property or suffers judgment to be taken against the defendant without answer, the plaintiff shall not recover costs." The statute is written in terms of "the defendant" or, in other words, in a style addressing one defendant, and provides that where the defendant disclaims any interest or does not answer in a quiet title action and judgment is entered against that defendant, the plaintiff shall not recover costs. However, Chapter 669 expressly contemplates that there may be more than one defendant in a quiet title action. HRS § 669-2(a) (2016) provides: "Any person may be made a defendant in the action who has or claims, or may claim, an interest in the property adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the issues involved therein." Thus, considering HRS § 669-6 in the context of the other provisions in Chapter 669, we interpret that section as follows: where there are multiple defendants in a quiet title action and any defendant either (a) disclaims in the defendant's answer any interest or estate in the property or (b) suffers judgment to be taken against the defendant without answering the action, the plaintiff shall not recover costs as to that defendant. In short, the plaintiff shall bear the costs related to such defendants and cannot recover those costs from other defendants.

We have found no reported case discussing HRS § 669-6, and have found only two cases that previously addressed, in passing fashion, the predecessor versions of the statute. See Lahaina Agric. Co., 18 Haw. at 495 ; Hakalau Plantation Co., 14 Haw. at 196.

In Lahaina Agric. Co., the Supreme Court of the Territory of Hawai'i held that the Circuit Court had erroneously dismissed a quiet title action where some of the defendants had disclaimed an interest as to some of the property at issue. 18 Haw. at 495. The court stated in relevant part:

That each of them then disclaimed as to some of the property did not require the action to be dismissed and plaintiff be deprived of its right to prove its case any more than if one or more of them had disclaimed as to all of it or failed to answer at all, in which case the only effect would be that plaintiff, under Sec. 2088, R. L., could not recover costs against whoever disclaimed as to all or failed to answer.

Id. (emphasis added).

In Hakalau Plantation Co., the Supreme Court of the Territory of Hawai'i addressed the effect of the defendants' general denial to a quiet title action, holding that the Circuit Court had erred in holding that such an answer amounted to a disclaimer. 14 Haw. at 190. In discussing whether the defendants were required to amend their answer "in order to set up their adverse claim", the court stated:

It may be the better doctrine or the better practice that defendants should be required, as is often held under other statutes elsewhere, to set forth in their pleadings in actions of this kind their adverse claims in order to be permitted to prove them at the trial, and perhaps this would be a proper subject for a rule of court, but, in our opinion, it is not necessary to do so under our statutes. The statute which provides for actions of this kind does not in terms require it (any more than the statute that relates to actions of ejectment), although it provides that if the defendant disclaims or suffers judgment to be taken against him without answer, the plaintiff shall not recover costs - a very natural and proper provision in a statute of this kind. But there is nothing expressly requiring a defendant to set forth his claim affirmatively in his answer.

Id. at 195-96 (emphasis added).

Both Lahaina Agric. Co. and Hakalau Plantation Co. involved multiple defendants. Although neither case directly decided the issue that we address here, they both contain brief discussion of a predecessor version of HRS § 669-6 from which we glean support for our interpretation of the statute, as set forth above. Our ruling is similarly supported by Boatmen's Nat. Bank of St. Louis v. Rogers, 352 Mo. 763, 179 S.W.2d 102 (1944), a quiet title action in which one of the defendants appealed and challenged, among other things, the costs that were assessed against him. In construing a statute similar to HRS § 669-6, the Supreme Court of Missouri ruled as follows:

Section 1686, R.S.1939, Mo.R.S.A., explicitly provides that if a defendant in a quiet title suit 'make default, or appearing, shall by answer admit the fact as stated in the petition and consent to judgment as prayed for' the plaintiff shall pay the costs. From the recitals in the decree certain of the costs fall within the quoted provisions; and the costs as to such defendants should be assessed against plaintiff and not against Rogers. Courts of equity have the inherent and discretionary power to award costs nisi.

Id. at 107 (emphasis added) (citations omitted); see also Erskine v. McCutchan, 9 Ind. 255 (1857) (holding that costs in a quiet title action should be awarded to the plaintiff against defendants who raised an issue tried by the court, but not against defendants who disclaimed the subject property).

As a further and separate matter, we also hold that it was plain error to assess $26,088.96 in costs against Mitchell when it was clear that significant portions of the costs incurred by Kualoa Ranch were unrelated to Mitchell (or the defendants who defaulted and suffered judgment to be taken against them), and instead were incurred with respect to the many other defendants who asserted a claim in this quiet title action. As noted previously, Kualoa Ranch's First Amended Complaint named one hundred sixty-two defendants. Ultimately, the Circuit Court's Final Judgment, entered on November 26, 2014, entered judgment against two hundred nine specifically identified defendants. Exhibit "A" delineates that many of the cost items were completely unrelated to Mitchell, such as costs for sheriff's fees in serving numerous defendants, none of whom were Mitchell, and for evicting multiple individuals.

In Boatmen's Nat. Bank of St. Louis, the Supreme Court of Missouri held that:

Plaintiff's bill alleged that each of the several defendants claimed an interest in the whole of the land involved; but several transactions affecting the title were pleaded and the claims of the individual defendants arose out of the different transactions. A decree adjudging all costs against named defendants (as in the instant case against Rogers and others) appears to be harsh; as, equitably, a litigant, in the circumstances presented, should not be required to pay costs directly attributable to transactions concerning others only. Some effort within reasonable limits should be made to allocate the costs in such instances and relieve parties unconcerned with portions of the costs from liability therefor.

179 S.W.2d at 107 (emphasis added); see also Sims v. Barnes, 289 So.2d 753 (Fla. Dist. Ct. App. 1974) (reversing an award of costs in a quiet title action involving more than one hundred defendants and holding it was highly questionable whether numerous cost items were properly assessed against appellants where the trial court did not itemize the sums it found to be taxable) . We agree with the sentiment expressed in Boatmen's Nat. Bank of St. Louis. In a quiet title action such as this involving multiple defendants, the plaintiff should make a reasonable effort, and the trial court should exercise its discretion, to allocate or apportion the costs incurred so that defendants are not required to pay significant portions of the costs that are unrelated to them or their claim.

IV. Conclusion

For the reasons set forth above, to the extent that they pertain to Mitchell, we vacate the Taxation of Costs entered on September 11, 2015, and the Judgment for Costs entered on October 19, 2015. We remand the case to the Circuit Court of the First Circuit for further proceedings related to Mitchell consistent with this opinion.

      The Honorable Jeannette H. Castagnetti presided.

      Mitchell is the only appellant in this appeal.

      HRS § 669-6 provides:
      § 669-6 Disclaimer, default, no costs.
      If in the action the defendant disclaims in the defendant's answer any interest or estate in the property or suffers judgment to be taken against the defendant without answer, the plaintiff shall not recover costs.

      On February 13, 2014, Mitchell also filed a notice of appeal from the Circuit Court's summary judgment order filed on January 16, 2014, which resulted in CAAP-14-0000499. However, because the Circuit Court had not resolved all of the claims in the case or entered an appealable final judgment, CAAP-14-0000499 was dismissed for lack of appellate jurisdiction on March 21, 2014.

      The Notice of Taxation of Costs did not cite to Hawai'i Rules of Civil Procedure (HRCP ) Rule 54(d), but it appears that the procedure under this rule was followed by the Circuit Court. HRCP Rule 54(d)(1) provides:
      Rule 54. Judgments; costs; attorneys' fees.
      ....
      (d) Costs; attorneys' fees.
      (1) COSTS OTHER THAN ATTORNEYS' FEES. Except when express provision therefor is made either in a statute or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the State or a county, or an officer or agency of the State or a county, shall be imposed only to the extent permitted by law. Costs may be taxed by the clerk on 48 hours' notice. On motion served within 5 days thereafter, the action of the clerk may be reviewed by the court.
      HRCP Rule 54(d)(1) does not provide a deadline by which a party must seek taxation of costs, and therefore Kualoa Ranch's Notice of Taxation of Costs was timely under this rule. The record reflects that Kualoa Ranch served Mitchell by mail with the Notice of Taxation of Costs on September 4, 2015. As noted earlier, Mitchell did not file any motion or objection to the Taxation of Costs in the Circuit Court. On the other hand, Kualoa Ranch's Notice of Taxation of Costs did not cite or refer to HRCP Rule 54 in any manner.

      Mitchell did not appeal from the Final Judgment previously entered by the Circuit Court on November 26, 2014. The Taxation of Costs, filed on September 11, 2015, was a post-judgment order from which Mitchell could and did appeal. See Ditto v. McCurdy, 103 Hawai'i 153, 157, 80 P.3d 974, 978 (2003) (a post-judgment order is an appealable final order under HRS § 641-1(a) "if the order ends the proceedings, leaving nothing further to be accomplished."); Chun v. Bd. of Trs. of Emps.' Ret. Sys. of State of Hawai'i, 106 Hawai'i 416, 428 n.12, 106 P.3d 339, 351 n.12 (2005) (noting that an order resolving a post-judgment motion for attorney's fees and interest was an appealable final "order under HRS § 641-1 (a) ); HRCP Rule 54(d)(1) (authorizing Circuit Court Clerk to enter taxation of costs). For purposes of appellate jurisdiction, Mitchell did not need to appeal from the October 19, 2015 Judgment for Costs because "the separate judgment requirement articulated in Jenkins [v. Cades Schutte Fleming & Wright, 76 Hawai'i 115, 869 P.2d 1334 (1994) ] is inapposite in the post-judgment context." Ditto, 103 Hawai'i at 158, 80 P.3d at 979.

      HRS § 669-1(a) (2016) provides:
      § 669-1 Object of action. (a) Action may be brought by any person against another person who claims, or who may claim adversely to the plaintiff, an estate or interest in real property, for the purpose of determining the adverse claim.


text:
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    Intermediate Court of Appeals of Hawai'i.
    August 15, 2019.
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text:
    JASON OIL COMPANY, LLC, Appellee, v. Frank E. LITTLER, et al., Defendants,
    (Debra Baldwin Burkhart, Susan Baldwin Manes, and James Baldwin), Appellants, and (F&E Littler, LLC, Janice Stull, Craig Stull, Jerilyn Ann Stull, and Michael Stull), Appellees.
    No. 118,387
    Supreme Court of Kansas.
    Opinion filed August 16, 2019.
    John L. Richeson, of Anderson & Byrd, LLP, of Ottawa, argued the cause, and Jeffrey A. Wilson, of the same firm, was with him on the briefs for appellants.
    Kenneth L. Cole, of Woelk & Cole, of Russell, argued the cause and was on the brief for appellee Jason Oil Company, LLC.
    Robert E. Bauer, of Bauer, Pike, Bauer & Wary, LLC, of Great Bend, argued the cause, and Kate M. Wary and Greg L. Bauer, of the same firm, were with him on the brief for appellees F&E Littler, LLC, Janice Stull, Craig Stull, Jerilyn Ann Stull, and Michael Stull.
    David E. Pierce, of Topeka, was on the brief for amicus curiae Eastern Kansas Oil & Gas Association.
    Joseph A. Schremmer and Charles C. Steincamp, of Depew Gillen Rathbun & McInteer, LC, of Wichita, Tyson Eisenhauer, of Johnston Eisenhauer Eisenhauer & Lynch, LLC, of Pratt, and Tyler K. Turner, of Jeter Law Firm, LLP, of Hays, were on the brief for amicus curiae Kansas Independent Oil & Gas Association.
    Will B. Wohlford, Roger L. Theis, and Jonathan A. Schlatter, of Morris, Laing, Evans, Brock & Kennedy, Chartered, of Wichita, were on the brief for amicus curiae Wichita Association of Petroleum Landmen.
   The opinion of the court was delivered by Johnson, J.:

This is a quiet title action involving the mineral interests in two tracts of real estate that were conveyed by deeds in which the grantor excepted the mineral interests for a "period of 20 years or as long thereafter" as minerals may be produced. The grantor's successors in interest (Grantor's heirs) claim that the future interests in the minerals that the deeds purported to convey to the grantees-that is, ownership of the minerals when grantor's excepted term interest ended-violated the common-law rule against perpetuities (the Rule), thereby voiding those conveyances ab initio and preventing them from subsequently devolving to the grantees' successors in interest (Grantees' heirs). Consequently, Grantor's heirs now claim full ownership of the mineral interest in both tracts.

The district court relied on the intent of the parties to the original deeds to find that the Grantees' heirs obtained ownership of the minerals when 20 years expired without production on the property. We affirm the district court's result, but on different grounds. We determine that the common-law rule against perpetuities, being a rule founded upon public policy, should not be applicable to the circumstances presented here.

FACTUAL AND PROCEDURAL OVERVIEW

The parties do not dispute the facts. On December 30, 1967, Frank E. Littler (Grantor) executed two deeds conveying tracts of real estate situated in the same section, to-wit: Section 20, Township 16 South, Range 19, West of the 6th P.M., Rush County, Kansas. He conveyed the East Half of the section (East Tract) to Franklin G. Littler and Elaine Littler (Littler Grantee). He conveyed the Northwest Quarter of the section (Northwest Tract) to Ruby I. Myers and George E. Myers (Myers Grantee). The Littler Grantee and the Myers Grantee will be collectively referred to as Grantees. Both the deed transferring the East Tract and the deed transferring the Northwest Tract contained the following language:

"EXCEPT AND SUBJECT TO: Grantor saves and excepts all oil, gas and other minerals in and under or that may be produced from said land for a period of 20 years or as long thereafter as oil and/or gas and/or other minerals may be produced therefrom and thereunder." (the reservation).

On December 28, 1973, in Rush County Probate Case No. 3802, a Journal Entry of Final Settlement distributed specified percentages of the residue of Grantor's estate, which would encompass any excepted interest in the above-described real estate, to children and grandchildren. Some of the Grantor's grandchildren and great-grandchildren who succeeded to the residuary interests under Grantor's will are the Grantor's heirs claiming the invalidity of Grantor's conveyance of the future interest in minerals to the Littler Grantee and the Myers Grantee.

From the expiration of the 20-year term of years, December 30, 1987, to the date the district court filed its memorandum decision granting summary judgment to the Grantees' heirs, May 31, 2017, there was no drilling operation conducted on either the East Tract or the Northwest Tract, and no oil or gas or other minerals was ever produced from either tract.

In 2016, Jason Oil Company, LLC (Jason Oil) filed its amended petition to quiet title to both tracts, claiming to hold valid and subsisting oil and gas leases. With respect to the Northwest Tract, the petition alleged that Michael L. Stull, Jerilyn Ann Stull, and Craig A. Stull-successors to the interests of the Myers Grantee-own all of the oil, gas, and other minerals in and under the property. With respect to the East Tract, the petition alleged that F&E Littler, LLC-presumably the successor to the interests of the Littler Grantee-owns all of the oil, gas, and other minerals in and under the property.

Debra Baldwin Burkhart, Susan Baldwin Manes, and James Baldwin and others (Grantor's heirs) answered, claiming an interest in the mineral rights through Frank E. Littler's will, as his grandchildren and great-grandchildren. In a motion for judgment on the pleadings, the Grantor's heirs argued that after the deeds were executed and delivered, Grantor was vested with a fee simple determinable in the mineral rights and the Littler Grantee and Myers Grantee held springing executory interests in the minerals which were subject to and invalidated by the Rule.

Michael Stull, Jerilyn Ann Stull, Craig Stull, Janice Stull, and F&E Littler, LLC, as Grantees' heirs, also answered. They admitted all of the allegations in Jason Oil's amended petition and cross-claimed against all other defendants, alleging that Michael Stull, Jerilyn Ann Stull, and Craig Stull owned the Northwest Tract minerals as successors to the Myers Grantee and that F&E Littler, LLC owned the East Tract minerals as successors to the Littler Grantee. Alternatively, Grantees' heirs asserted that if the court determined the future interest in minerals conveyed by Grantor violated the Rule, the interests should be reformed under the Uniform Statutory Rule Against Perpetuities (USRAP) specifically under K.S.A. 59-3405(b) to conform with the intent of the parties and avoid violating the Rule.

The Grantor's heirs filed a motion for summary judgment seeking a ruling that the future interests in minerals created in the deeds are springing executory interests that are void under the Rule; that USRAP, including K.S.A. 59-3405(b), is void for violating Article II, § 16 of the Kansas Constitution because it was passed in a bill containing more than one subject; and that ownership of the minerals lying in and under both Tracts passed with the residue of Frank E. Littler's estate as stated in the Journal Entry of Final Settlement of the probate case.

The district court granted the Grantees' heirs' contested motion for bifurcation, ruling that the court would not determine whether USRAP violated Article II, § 16 of the Kansas Constitution until it determined the threshold issue of whether the mineral interests violated the Rule.

The Grantees' heirs and Jason Oil responded in opposition to the Grantor's heirs' motion for summary judgment. The Grantees' heirs filed their own summary judgment motion.

On May 31, 2017, the district court denied the Grantor's heirs' motion and granted summary judgment to the Grantees' heirs. The district court noted that "[t]here is no serious dispute that Frank E. Littler [Grantor] conveyed all of his interest in the subject properties to the respective grantees, subject only to the grantor's express reservation, excepting and saving a term mineral interest." The court found that when construing deeds, all other rules are subordinate to the intention of the grantor and Frank E. Littler's intention "could not be clearer than stated." With respect to classifying the mineral interests, the court found:

"Frank E. Littler granted less than the entire interest in the subject real estate and created a defeasible estate by reservation. The defeasible term mineral interest in each deed is a future estate reserved to the grantor and a reversion. A reversion remaining in the grantor is not subject to the [Rule]."

The district court also considered the public policy underlying the Rule and found that Grantor's reservation had not restricted alienation of the surface and mineral estates of the real property in question.

The Grantors' heirs filed a motion to alter or amend the judgment requesting that the district court change its analysis to focus on the future interest created in the grantees and hold the Rule applied to the grantees' interests. If the court continued to rule for the Grantees' heirs, the Grantor's heirs requested an order quieting title in the Grantees' heirs to ensure the judgment was a final appealable order. The district court granted the request to quiet title but denied the remainder of the motion to alter or amend. After the Journal Entry of Judgment Quieting Title was filed, the Grantor's heirs timely appealed to the Court of Appeals.

This court granted the Grantor's heirs' motion to transfer the appeal from the Court of Appeals and granted motions to file amicus curiae briefs on behalf of the Kansas Independent Oil & Gas Association (KIOGA), the Eastern Kansas Oil & Gas Association (EKOGA), and the Wichita Association of Petroleum Landmen (WAPL).

THE APPLICABILITY OF THE COMMON-LAW RULE AGAINST PERPETUITIES

We are asked to decide a question of first impression in this state that carries the potential of voiding innumerable transfers of mineral interests and creating marketable title problems of epic proportions. Does the common practice of reserving a term interest in minerals that continues so long as minerals are produced create a springing executory interest that must be invalidated by the Rule?

Standard of Review

This court has unlimited review for two reasons. First, the parties agree that the material facts are uncontroverted; therefore, this court reviews the district court's summary judgment decision de novo. See Superior Boiler Works, Inc. v. Kimball , 292 Kan. 885, 890, 259 P.3d 676 (2011).

Second, "[t]he interpretation and legal effect of written instruments are matters of law over which appellate courts exercise unlimited review." Thoroughbred Assocs. v. Kansas City Royalty Co. , 297 Kan. 1193, 1207, 308 P.3d 1238 (2013) ; see also Rucker v. DeLay , 295 Kan. 826, 830, 289 P.3d 1166 (2012) (in case decided based on documents and stipulated facts, appellate court has de novo review over whether royalty interest is void under the rule against perpetuities);

Central National Resources v. Davis Operating Co. , 288 Kan. 234, 240, 201 P.3d 680 (2009) (legal effect of coal deed is a question of law subject to unlimited review).

Analysis

We begin by discussing the Rule. It " 'precludes the creation of any future interest in property which does not necessarily vest within twenty-one [21] years after a life or lives presently in being, plus the period of gestation, where gestation is, in fact, taking place.' " Rucker , 295 Kan. at 831, 289 P.3d 1166 (quoting Singer Company v. Makad, Inc. , 213 Kan. 725, 728-29, 518 P.2d 493 [1973]). In the context of a decedent's estate, we opined: "The test for determining whether an interest violates the rule is simple: Can a hypothetical case be posed, based upon the facts as they existed at the date of the testator's death, in which the interest will vest later than lives in being and 21 years?" In re Estate of Freeman , 195 Kan. 190, 196, 404 P.2d 222 (1965). This court has also explained, "[w]here the twenty-one [21] year period has no reference to a life or lives in being, it has been said to be in gross, and the devise or grant is not too remote if the contingency must happen within that time." Singer , 213 Kan. at 729, 518 P.2d 493.

In Kansas, the Rule "began as a creation of common law." Rucker , 295 Kan. at 830, 289 P.3d 1166. In 1992, the Kansas Legislature "codified and somewhat modified" the Rule by adopting USRAP, K.S.A. 59-3401 et seq. 295 Kan. at 830, 289 P.3d 1166. USRAP supersedes the Rule; however, this statutory modification applies only to nonvested property interests "created on or after the effective date of this act." K.S.A. 59-3405(a) ; see also Gore v. Beren , 254 Kan. 418, 429, 867 P.2d 330 (1994) (holding USRAP did not apply to property interest created in 1962). So USRAP's modification of the Rule does not apply to the property interests the deeds created in 1967. Therefore, we must determine whether the common-law Rule applies in this case. See K.S.A. 77-109 ("The common law as modified by constitutional and statutory law, judicial decisions, and the conditions and wants of the people, shall remain in force in aid of the General Statutes of this state.").

The Grantor's heirs first argue the district court erred when it analyzed whether the present interests the Grantor kept violated the Rule. They assert that the district court should have analyzed the future interests Grantor conveyed to the Grantees. We agree with the Grantor's heirs on this point.

The district court's decision contained the following conclusions classifying the interests:

"1. Frank E. Littler, as the grantor in each deed, reserved a defeasible term mineral interest.
"2. The future estate kept by Littler in the mineral interest of the subject property was a reversion.
....
"5. The reservation of the defeasible term mineral interest by Frank E. Littler was a reversion, and was not subject to the [Rule]." (Emphases added.)

With regard to conclusion number 1, the district court's finding that Grantor's mineral interest was a "defeasible term mineral interest" is accurate under Kansas law, albeit Kansas courts have not addressed such a classification issue in the context of a Rule violation challenge. See Classen v. Federal Land Bank of Wichita , 228 Kan. 426, 437, 617 P.2d 1255 (1980) (describing a tract "subject to a defeasible term one-fourth mineral interest of the [grantor] created in a single instrument for a primary term of twenty years ... and so long thereafter." [Emphases added.] ); see also Dewell v. Federal Land Bank , 191 Kan. 258, 260, 380 P.2d 379 (1963) ("This court has held in a long line of decisions that the conveyance or reservation of minerals in place by deed for a primary term and so long thereafter as oil or gas is produced or the premises are being developed creates a base or determinable fee."), overruled on other grounds by Classen , 228 Kan. 426, 617 P.2d 1255 ; Wilson v. Holm , 164 Kan. 229, 234-35, 188 P.2d 899 (1948) ("[I]n this state a deed, conveying oil and gas in place for a fixed term of years and so long thereafter as either or both are produced in paying quantities, creates a base or determinable fee and that title to the estate so created vests immediately upon the execution and delivery of such an instrument but remains defeasible in the event of cessation of production."); Williams & Meyers, Manual of Oil and Gas Terms, 272 (17th ed. 2018) (defining "defeasible-term interest" as "[a] mineral, royalty or nonexecutive mineral interest for a fixed term of years and for an indefinite period of time thereafter, usually so long as oil or gas is produced").

In its conclusions 2 and 5, the district court veered off course. The defeasible term mineral interest Grantor kept was a present interest. Compare 3 Restatement (Third) of Property § 24.1 (2011) ("A present interest is an ownership interest in property that entitles the owner to possession or enjoyment of the property."), with 3 Restatement (Third) of Property § 25.1 (2011) ("A future interest is an ownership interest in property that does not currently entitle the owner to possession or enjoyment of the property. The owner's right to possession or enjoyment is postponed until some time in the future and may be contingent or vested."). Before the conveyances, Grantor owned the mineral interests outright and possessed all of the incidents of ownership; he had a vested interest in the minerals. After the conveyances, Grantor possessed the same incidents of ownership; those incidents could be presently enjoyed or exercised, i.e., his interest in the minerals remained vested after the conveyances and for at least 20 years.

In classifying the defeasible term mineral interest as a future interest, the district court relied on Rucker . But that case dealt with a royalty interest, which is not analogous to the mineral interest at issue here. A royalty interest is personal property, whereas a mineral interest is real property. Rucker , 295 Kan. at 830, 289 P.3d 1166 ; see also Oxy USA v. Red Wing Oil , 309 Kan. 1022, 1025-27, 442 P.3d 504, 507-08 (2019) (misappropriation of a royalty is not adverse possession of the minerals in place because a royalty is mere personal property while minerals in place remain real property); Shepard, Executrix v. John Hancock Mutual Life Ins. Co. , 189 Kan. 125, 130-31, 368 P.2d 19 (1962) ("The term 'mineral interest' means an interest in and to oil and gas in and under the land and constitutes present ownership of an interest in real property."). Moreover, we have caselaw holding that a royalty interest created in a transferee is a future interest that vests at production. Rucker , 295 Kan. at 835-36, 289 P.3d 1166. Nevertheless, the district court was correct in holding that the Rule did not apply to Grantor's excepted interest, albeit for a different reason. The interest was not a reversion, but rather it was a present, vested interest to which the Rule is simply inapplicable.

The future interest created by the deeds that the district court should have focused on is the interest in the minerals that passed to the Grantees. That interest is the right for the Grantees to have full possession and use of the mineral interest following the expiration or termination of the Grantor's reserved defeasible term interest. By the terms of the reservation, the earliest vesting of Grantees' future interest was December 30, 1987, the end of the 20-year term. But because the Grantor retained the possession and use of the mineral interest in each tract for so long after December 30, 1987, that minerals were being produced from the respective tract, the actual date upon which the future interests would vest in Grantees could not have been ascertained when the deeds were executed, i.e., when the future interests were created. At that time, the possibility existed that oil or gas could be discovered underlying either or both tracts and that the tracts would continue to produce minerals for more than 21 years after the death of the last of the Grantor's heirs or Grantees' heirs who were alive on December 30, 1967. In other words, the future interest would violate the Rule. Our task, then, is to determine whether the Rule should be applied to this type of future interest.

The Grantor's heirs acknowledge that this case presents an issue of first impression as it relates to this particular reserved defeasible term mineral interest, notwithstanding that such reservations have been commonly used in this state for a long time. But they nevertheless rely on the doctrine of stare decisis, contending that our caselaw applying the Rule to future interests in other contexts mandates a reversal. Moreover, they argue the Rule must be applied to avoid uncertainty and confusion in the area of real estate titles. Specifically, the Grantor's heirs assert that the Grantees' future interest should be labeled either a springing executory interest or a contingent remainder, both of which are void under the Rule. See Trustees of Endowment Fund of Hoffman Memorial Hosp. Ass'n. v. Kring , 225 Kan. 499, 502, 592 P.2d 438 (1979) ("An executory interest is not a vested estate and is subject to the rule against perpetuities."); McEwen v. Enoch , 167 Kan. 119, 122, 204 P.2d 736 (1949) ("The distinction between vested and contingent interests is of great importance as concerns the rule against perpetuities, for a true vested interest is never obnoxious to the rule, while a contingent interest not only may be, but often is.").

The Grantor's heirs primarily rely on Beverlin v. First National Bank , 151 Kan. 307, 98 P.2d 200 (1940), a case holding that a contingent class gift to the testator's grandchildren violated the Rule. The testator gave one-third of his property to each of his two daughters but to be held in trust until they reached 40 years of age. If a daughter reached age 40, her interest became indefeasible and an absolute legal interest. But if a daughter died before she attained age 40, then her property divested, and if she had children, the testator's grandchildren who attained age 25 received the gift. This court held that the executory devise to the grandchildren was a class gift to a group capable of future change in number; therefore, it violated the Rule because it could possibly vest too remotely. 151 Kan. at 310-12, 98 P.2d 200.

The Grantor's heirs also point to Kring , where a trust provided a present interest for the benefit of a hospital's maintenance. Should the hospital cease to be operated as a hospital, the fund became the property of a third party or his heirs. This court held the gift over to the third party or his heirs violated the Rule. The court reasoned the gift over appeared to be an executory interest, but if it was not an executory interest, it was a contingent remainder, and both interests were subject to the Rule. Kring , 225 Kan. at 502-03, 592 P.2d 438.

Beverlin and Kring provide some support for the Grantor's heirs' arguments under traditional property law classifications. But as the Grantees' heirs argue, Beverlin and Kring addressed far different property interests created in a different manner than the future interest created by the Grantor's reservation at issue in this case. No Kansas case has addressed whether to apply the Rule to a grantee's future interest in minerals following the grantor's reservation of a defeasible term mineral interest. Given that the Rule is a creature of common law and we have no binding precedent, we are free to decide whether the Rule should apply in this context.

The Grantees' heirs contend that property scholars and courts are moving away from the traditional classifications of future interests; therefore, this court should not feel compelled to classify their future interest as an executory interest subject to the Rule. Rather, they ask us to join the modern trend tempering the Rule, and, if the future interest must be classified at all, it should be designated as a reversion, possibility of reverter, or a vested interest not subject to the Rule. See Rucker , 295 Kan. at 832, 289 P.3d 1166 (vested remainders and reversions are not subject to the Rule); Kring , 225 Kan. at 502, 592 P.2d 438 ("It is universally agreed that the possibility of reverter is not within the rule.").

As the Grantees' heirs point out, out-of-state authority addressing this issue has overwhelmingly declined to apply the Rule to void similar future interests, utilizing a variety of property law classifications and policy rationales. See, e.g., ConocoPhillips Co. v. Koopmann , 547 S.W.3d 858, 873 (Tex. 2018) ("[I]n this oil and gas context, where a defeasible term interest is created by reservation, leaving an executory interest that is certain to vest in an ascertainable grantee, the Rule does not invalidate the grantee's future interest."); Williams v. Watt , 668 P.2d 620, 632-33 (Wyo. 1983) (holding that under the unique characteristics of mineral interests, an excepted and reserved defeasible term-plus-production mineral interest could be treated as a life estate that was certain to pass automatically to the grantee upon the "demise" of the prior mineral estate);

Earle v. International Paper Co ., 429 So. 2d 989, 994-95 (Ala. 1983) (applying a fictitious two-grant theory to classify a defeasible term-plus-production mineral interest excepted and reserved in the grantor as creating a reservation through an implied regrant from the grantee to the grantor); Bagby v. Bredthauer , 627 S.W.2d 190, 194-96 (Tex. App. 1981) ; (applying a fictitious two-grant theory to classify an interest excepting and reserving a term-plus-production defeasible term royalty interest [an interest in land under Texas law] in the grantor as if the grantor had conveyed his entire royalty interest to the grantee and then had the grantee convey the same back to the grantor). Compare Rousselot v. Spanier , 60 Cal. App. 3d 238, 241, 131 Cal. Rptr. 438 (1976) (holding deed excepting and reserving term-plus-production mineral interest created a profit à pendre, an interest in real property in the nature of an incorporeal hereditament, " 'essentially indistinguishable from [an] easement[ ]' " and not subject to the Rule), with Victory Oil Co. v. Hancock Oil Co. , 125 Cal. App. 2d 222, 224, 230-36, 270 P.2d 604 (1954) (noting a deed excepting and reserving minerals for a period of five years, and " 'in the event' " minerals were found within the 5-year period, continuing for 20-years-plus production, was void under the Rule; additionally noting there was production on the land in the secondary term).

The Grantees' heirs acknowledge that some of those foreign cases ignore, or change, well-established labels historically applied to future interests in real property and that some of the cases employ contrived theories. But they argue that we should follow suit because of the practical implications for mineral ownership and the chaotic impact on the oil and gas industry that would occur if the Rule were applied to these types of transactions. For example, pointing to Earle and Bagby , the Grantees' heirs argue that it is absurd to hold that the deeds here violate the Rule because each future interest was conveyed using only one instrument when the grantor and grantee clearly could have accomplished the same end result without implicating the Rule if they had utilized two instruments: a grant of all interests and a regrant of the term mineral interest.

The Grantor's heirs do not dispute that structuring the transaction as a double conveyance would have avoided the creation of a Rule violation. Nevertheless, they insist we must apply the Rule to the actual instruments that were utilized here, and those instruments created future interests that are void under the Rule.

The Grantor's heirs also quibble that the deeds created an exception-not a reservation-of the defeasible term interest. Given the obvious intent of the parties, as corroborated by the district court's findings, we decline to drill down into the traditional property law distinction between exceptions and reservations. See Earle , 429 So. 2d at 993 (" '[C]ourts construe a reservation as an exception, and vice versa, in order to give effect to the obvious intention of the parties.' ").

Further, we decline the invitation to adulterate the traditional, and long-standing, definition of the future interest in realty that was created by the deeds' language. Likewise, we decline the invitation to employ a legal fiction, such as the grant and a regrant theory. Rather, we will construe the deeds that were actually used, not those that could have been used. Under that straightforward methodology, we determine that the deeds created in the Grantees a springing executory interest. If the Grantees' heirs are to receive what the original parties to the deed obviously intended the Grantees to have, it will be because this court carves out a narrow exception to the common-law rule against perpetuities in this state, making the Rule inapplicable to a reserved (or excepted) defeasible term mineral interest of the kind presented here.

In making the determination of whether to make this narrow exception to the common-law Rule, it is helpful to take a look at our prior statements about the purpose of having the Rule:

"The policy considerations behind the rule against perpetuities are clear.
" 'The rule against perpetuities springs from considerations of public policy. The underlying reason for and purpose of the rule is to avoid fettering real property with future interests dependent upon contingencies unduly remote which isolate the property and exclude it from commerce and development for long periods of time, thus working an indirect restraint upon alienation, which is regarded at common law as a public evil.' First Nat'l Bank & Trust Co. v. Sidwell Corp., 234 Kan. 867, Syl. ¶ 8, 678 P.2d 118 (1984).
"The rule was first developed 'to prevent the practice of tying up family property for generations and thereby creating unreasonable restraints upon the alienation of property.' Barnhart , 235 Kan. at 517, 682 P.2d 112." Gore , 254 Kan. at 428-29, 867 P.2d 330.

See also In re Estate of Woods , 181 Kan. 271, 280, 311 P.2d 359 (1957) ("Broadly stated, the rule against perpetuities is grounded traditionally on a farsighted public policy which frowns on the total exclusion of property from commerce for long periods of time and is supported by the practical needs of modern times."); Freeman , 195 Kan. at 200, 404 P.2d 222 ("[T]he purpose of the rule against perpetuities ... is to keep property alienable within the reasonable limits fixed by the rule."). Cf. Singer , 213 Kan. 725, Syl. ¶ 2, 518 P.2d 493 ("The modern tendency is to temper the rule if possible where its harsh application would obstruct or do violence to an intended scheme of property disposition.").

With respect to the purpose behind the Rule, the Grantor's heirs assert that "Kansas courts seem to have missed the nature of the Rule's origin, though there is still time to right the ship." They contend that the Rule is designed to accomplish three related objectives: (1) balancing the rights of the current owner and future owner; (2) contributing to the utilization of wealth in society; and (3) ensuring property can be used to meet the urgent needs of its current owners. But in their view, modern courts have improperly synthesized these considerations into a policy of ensuring property is alienable. They argue that courts should instead focus on ensuring the present interest holder may enjoy all of the rights attendant to that interest. Ultimately, the Grantor's heirs insist that the Rule must be applied "remorselessly," without regard to whether the property at issue is alienable and without regard to the grantor's intent.

Apparently, when it comes to the public policy behind our common law, the Grantor's heirs are no longer enamored with the principle of stare decisis. As the Grantees' heirs counter, Kansas courts have clearly adopted alienability of property as an overarching policy for the Rule's continued application in this state. We see no reason to depart from that precedent.

Our next step, then, is to assess how applying the Rule in this circumstance would comport with the policy behind the Rule. The Grantees' heirs contend that expanding the Rule to void the future interest following the reserved defeasible term mineral interest in this case serves no valid purpose or public policy, but rather it would be a nonsensical act of legal formalism. They point out that this court has previously rejected the "remorseless" approach the Grantor's heirs ask this court to apply. Cf. Freeman , 195 Kan. at 200, 404 P.2d 222 (holding that valid parts of will could stand despite invalidity of certain devises under the Rule and stating "[t]his court has never adhered to the classical view of 'remorseless' construction developed in England"). They contend, and we agree, that the application of the Rule in this case would actually impede the alienability of the land.

Applying the Rule in this case would result in the Grantor's heirs holding the mineral interests in the real estate in perpetuity. One would presume that the number of owners of that interest would increase over time, as heirs beget more heirs. Moreover, the possessors of the subsurface mineral interest are not as readily ascertainable as the occupiers of the surface interest. Thus, a person wanting to purchase the entirety of the tracts would have to go way beyond locating and negotiating with the possessors of the surface interest. Such prospective purchaser would have to locate all of the grantor's heirs and negotiate with each one for the purchase of his or her respective interest in the minerals in order to reunite the mineral interest with the surface interest. Other courts have pointed out that applying the Rule to prevent the reuniting of split mineral interests would actually "frustrate the policies behind the rule." Earle , 429 So. 2d at 995. The same frustration is caused by voiding the deed provisions in this case that actually provide for the reunification of the surface and mineral interest.

We do not stand alone in believing that a straightforward exempting of reserved defeasible term mineral interests from the remorseless application of the Rule does more good than harm. For instance, the Williams & Myers treatise opines:

"[D]efeasible term interests serve a useful social purpose, whether reserved or granted. The term interest, as compared with a perpetual interest, tends to remove title complications when the land is no longer productive of oil or gas. This simplification of title promotes alienability of land, which is one purpose served by the Rule against Perpetuities. We believe, therefore, that the courts should simply exempt interests following granted or reserved defeasible term interests from the Rule, on the straightforward basis that they serve social and commercial convenience and do not offend the policy of the Rule Against Perpetuities." 2 Williams & Meyers, Oil and Gas Law, § 335 (2018).

Recently, the Texas Supreme Court relied in part on the Williams & Meyers treatise's straightforward rationale when declining to apply the Rule to a similar interest under Texas law, reasoning "restraint on alienability and promoting the productivity of land is not at issue in the oil and gas context." Koopmann , 547 S.W.3d at 869. The concurrence in Williams also supported this rationale. Williams , 668 P.2d at 638 (Thomas, J., concurring) ("Essentially Williams and Meyers ... is advocating the application to this situation of the maxim that when the reason upon which a rule is justified is not present the rule should not be invoked."). While we adopt the approach from Williams & Meyers, we note that other learned treatises likewise recognize that the policy behind the Rule is not furthered in this context. See Anderson et al., Hemingway Oil and Gas Law and Taxation, § 2.8(B) (4th ed. 2004) ("Rather than misapply common law rules relating to future interests, a better judicial approach would be to treat the interests resulting from conveyances of terminable [mineral] rights in oil and gas as sui generis and fashion a rule of construction related to the realities of such transactions."); 1 Kuntz, Law of Oil & Gas, § 17.3 (1987) ("The application of the rule against perpetuities to the interest following a retained term mineral interest is easily overlooked, probably because the evil designed to be avoided by the rule is not readily apparent if it is present at all.").

The Grantees' heirs and the Amici Curiae additionally argue that these transactions are common in the oil and gas industry and application of the Rule will impact many other property owners who received their interest from similarly worded deeds. We recognize that the undisputed facts relied upon by the district court did not address this contention. But as KIOGA points out, Kansas caselaw provides multiple examples of these transactions, and we cannot ignore that reality. See Kneller v. Federal Land Bank of Wichita , 247 Kan. 399, 400, 799 P.2d 485 (1990) (deed grantor, Federal Land Bank, excepted and reserved one-half defeasible term-plus-production mineral interest); Classen , 228 Kan. at 427, 617 P.2d 1255 (deed grantor, Federal Land Bank, excepted and reserved one-fourth defeasible term-plus-production mineral interest); Friesen v. Federal Land Bank of Wichita , 227 Kan. 522, 522-23, 608 P.2d 915 (1980) (deed grantor, Federal Land Bank, excepted and reserved one-fourth defeasible term-plus-production mineral interest), overruled on other grounds by Classen , 228 Kan. 426, 617 P.2d 1255 (1980) ; Shepard , 189 Kan. at 126-27, 368 P.2d 19 (deed grantor, John Hancock Mutual Life Insurance, excepted and reserved one-fourth defeasible term-plus-production mineral interest); Dewell , 191 Kan. at 258, 380 P.2d 379 (deed grantor, Federal Land Bank, excepted and reserved one-half defeasible term-plus-production mineral interest); see also Oxy USA , 309 Kan. at 1023, 442 P.3d 504, (grantor reserved one-half defeasible term-plus-production mineral interest); Stratmann v. Stratmann , 204 Kan. 658, 663, 465 P.2d 938 (1970) ("A mineral interest may ... be reserved for a period so long as production from the land continues."), overruled on other grounds by Classen , 228 Kan. 426, 617 P.2d 1255 (1980) ;

Brooks v. Mull , 147 Kan. 740, 741, 78 P.2d 879 (1938) (grantor reserved one-half defeasible term-plus-production mineral interest). The commonality of these transactions is likewise apparent in rulings from our sister states and in treatises discussing this issue. See, e.g., Williams , 668 P.2d at 630 ("Many cases simply assume the validity of these interests without any discussion of the rule against perpetuities."); 1 Kuntz, § 17.3 ("In many reported cases, the presence of the [Rule] problem has gone unnoticed, and the apparent assumption has been made that the interest is valid.").

Our precedent makes clear that the policies behind the common-law Rule include promoting the alienability of property. The practice of retaining a defeasible term-plus-production interest in minerals is ingrained in the oil and gas industry and actually promotes the alienability of land. Applying the Rule here would be counterproductive to the purpose behind the Rule and create chaos. Therefore, we hold that where a grantor creates a defeasible term-plus-production mineral interest by exception, leaving a future interest in an ascertainable grantee, the future interest in minerals is not subject to the Rule.

As previously indicated, in the district court, the Grantees' heirs alternatively pled that if the district court found a Rule violation, the deeds should be reformed under K.S.A. 59-3405(b), which applies retroactively. Because we hold that the interests at issue are exempt from the Rule, we need not address the statutory reformation remedy.

We hold that the Rule does not apply in this circumstance; therefore, we affirm the district court's grant of summary judgment to the Grantees' heirs and order quieting title to the Tracts.

Affirmed.


text:
    STATE of Kansas, Appellee, v. Billy SARTIN, Appellant.
    No. 115,172
    Supreme Court of Kansas.
    Opinion filed August 16, 2019.
    Kimberly Streit Vogelsberg, of Kansas Appellate Defender Office, was on the brief 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 Johnson, J.:

Billy Sartin seeks review of the Court of Appeal's decision affirming the district court's summary denial of his motion to correct an allegedly illegal sentence imposed in 1995. Sartin contends that five of his prior Illinois convictions were improperly classified as person felonies in his Kansas Sentencing Guidelines Act (KSGA) criminal history calculation. The Court of Appeals considered and rejected Sartin's challenge to the classification of one of his prior convictions but refused to consider the legality of the other four convictions, deeming those challenges to have been made for the first time on appeal.

We affirm the panel's determination on the merits relative to the one conviction it considered, but reverse its erroneous holding that it could not consider the legality of the other four prior convictions. We remand to the Court of Appeals with directions to consider and rule on the merits of the legality of the other four prior Illinois convictions.

FACTUAL AND PROCEDURAL BACKGROUND

Following his 1995 convictions for aggravated kidnapping, aggravated criminal sodomy, sexual battery, aggravated robbery, and robbery, Billy Sartin was sentenced to 604 months in prison. His sentence was calculated using a criminal history score of A, which included five prior felony convictions from Illinois: two convictions in 1987 for aggravated criminal sexual battery, two 1987 convictions for home invasion, and one 1993 conviction for aggravated criminal sexual abuse. The robbery conviction was remanded on direct appeal and the State opted against re-prosecuting it; Sartin's sentence was reduced to 570 months. State v. Sartin , No. 74,791, 927 P.2d 520, unpublished opinion filed November 15, 1996 (Kan. App.). The mandate issued February 7, 1997.

In June 2015, Sartin filed a pro se K.S.A. 22-3504 motion to correct an illegal sentence, arguing that one of his Illinois convictions, for aggravated criminal sexual abuse, should be scored as a nonperson felony pursuant to State v. Murdock , 299 Kan. 312, 323 P.3d 846 (2014) ( Murdock I ), overruled by State v. Keel , 302 Kan. 560, 357 P.3d 251 (2015), which had held that all prior out-of-state convictions must be scored as nonperson crimes.

The State responded and noted that Murdock I had been overruled by Keel and, in addition, the Murdock I holding was being legislatively abrogated. The district court denied Sartin's motion, noting in a motions minute sheet that the motion was denied because of Keel and H.B. 2053 (2015), the legislation abrogating the Murdock I holding.

The Court of Appeals affirmed the district court's denial. On the merits, the panel found that, for KSGA criminal history scoring purposes, the Illinois crime of aggravated criminal sexual abuse was comparable to the Kansas crime of aggravated sexual battery, K.S.A. 1994 Supp. 21-3518, which was a person felony. State v. Sartin , No. 115172, 2017 WL 462696, at *4 (Kan. App. 2017) (unpublished opinion). But the panel declined to consider the merits of Sartin's challenge to his other four Illinois convictions because he had not specifically mentioned them in his pro se K.S.A. 22-3504 motion, albeit his brief to the Court of Appeals contested all five prior convictions. Sartin , 2017 WL 462696, at *2.

We granted Sartin's petition for review of the Court of Appeals' decision.

CLASSIFICATION OF ILLINOIS CRIME OF AGGRAVATED CRIMINAL SEXUAL ABUSE

We first consider whether the Court of Appeals was correct in holding that the sentencing court correctly classified Sartin's conviction in Illinois for aggravated criminal sexual abuse as a person felony when calculating his criminal history score under the KSGA. Sartin's current argument in support of his illegality claim is based upon the constitutional prohibition on judicial fact-finding that has emanated from Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and Descamps v. United States , 570 U.S. 254, 133 S. Ct. 2276, 186 L. Ed. 2d 438 (2013). But because Sartin was sentenced years before those cases became applicable, his challenge is unavailing.

Standard of Review

Whether a sentence is illegal is a question of law subject to unlimited review. State v. Donahue , 309 Kan. 265, 267, 434 P.3d 230 (2019). Interpretation of statutes is also a matter of law subject to unlimited review. State v. Jamerson , 309 Kan. 211, 214, 433 P.3d 698 (2019). Classification of prior crimes for criminal history purposes involves interpretation of the KSGA, which is therefore subject to unlimited review. State v. Wetrich , 307 Kan. 552, 555, 412 P.3d 984 (2018) (citing Keel , 302 Kan. at 571-72, 357 P.3d 251 ).

Analysis

Pursuant to K.S.A. 22-3504(1) "[t]he court may correct an illegal sentence at any time." A sentence is illegal under K.S.A. 22-3504 if it: (1) was imposed by a court lacking jurisdiction; (2) does not conform to statutory provisions in character or term of punishment authorized; or (3) is ambiguous with regard to the time and manner it is to be served. State v. Noyce , 301 Kan. 408, 409-10, 343 P.3d 105 (2015). Sartin relies on the second circumstance; he argues that his sentences did not conform to the statutory provisions governing the calculation of a criminal history score which in turn resulted in an unauthorized term of punishment.

Sartin's 1995 sentence was imposed under the KSGA, which introduced the person/nonperson categorization of crimes and mechanisms used to determine how prior crimes should be accounted during sentencing proceedings. K.S.A. 21-4701 et seq. ; see K.S.A. 2018 Supp. 21-6811 (formerly K.S.A. 21-4711, determination of criminal history classification). Prior convictions for person felonies increase the criminal history score more than nonperson felony convictions and, thus, result in longer prison terms. Of particular importance here is that his prior out-of-state convictions were compared to Kansas crimes when calculating criminal history. To wit:

"(e) Out-of-state convictions and juvenile adjudications will be used in classifying the offender's criminal history. An out-of-state crime will be classified as either a felony or a misdemeanor according to the convicting jurisdiction. If a crime is a felony in another state, it will be counted as a felony in Kansas. The state of Kansas shall classify the crime as person or nonperson. In designating a crime as person or nonperson comparable offenses shall be referred to. If the state of Kansas does not have a comparable offense, the out-of-state conviction shall be classified as a nonperson crime." K.S.A. 1994 Supp. 21-4711.

The meaning of "comparable offense" was, for many years, defined as the "closest approximation." State v. Williams , 299 Kan. 870, 873-74, 326 P.3d 1070 (2014) (citing State v. Vandervort , 276 Kan. 164, 179, 72 P.3d 925 [2003] ). Under that test, the out-of-state crimes need not have elements that are identical to a Kansas crime. It was sufficient if the Kansas person-felony crime closely approximated the elements of the out-of- state crime. 299 Kan. at 873, 326 P.3d 1070.

Subsequently, however, we refined the definition of a comparable offense for purposes of classifying out-of-state felonies as person offenses under the KSGA. Specifically, in Wetrich we held, as a matter of statutory construction:

"For an out-of-state conviction to be comparable to an offense under the Kansas criminal code, 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." 307 Kan. at 562, 412 P.3d 984.

Wetrich was decided after Sartin filed his petition for review. Nevertheless, Sartin asked us to apply the same identical-to-or-narrower-than paradigm as a matter of constitutional law. The argument is founded on Apprendi 's prohibition against judicial fact-finding. If the elements of the out-of-state crime are broader than those of the Kansas offense, the out-of-state conviction could have been established by acts that would not be a violation of the Kansas crime, i.e., the fact of the out-of-state conviction, standing alone, would not necessarily establish the elements of the Kansas crime. Therefore, the sentencing court would have to engage in judicial fact-finding to determine whether the out-of-state acts would have established the "comparable" Kansas offense. Here, Sartin argues that the elements of the Illinois crimes are broader than the corresponding Kansas crimes, and that under Apprendi and Descamps a court is prohibited from engaging in any fact-finding beyond the fact of the existence of the prior convictions in order to discover the underlying factual circumstances of the prior convictions.

After Wetrich , however, we clarified that the determination of the legality of a sentence for K.S.A. 22-3504(1) purposes is to be based on the law in effect when the sentence was pronounced, e.g., the sentence conformed with the statutory provisions then in effect. State v. Murdock , 309 Kan. 585, 591-92, 439 P.3d 307 (2019) ( Murdock II ). If the sentence was legal when originally imposed, a subsequent change in the law cannot transform a legal sentence into an illegal sentence. Specifically, Murdock II said that

"the legality of a sentence under K.S.A. 22-3504 is controlled by the law in effect at the time the sentence was pronounced. The legality of a sentence is fixed at a discrete moment in time-the moment the sentence was pronounced. At that moment, a pronounced sentence is either legal or illegal according to then-existing law. Therefore, for purposes of a motion to correct an illegal sentence, neither party can avail itself of subsequent changes in the law." 309 Kan. at 591, 439 P.3d 307.

Murdock II clarified that it was not changing the longstanding rule that a defendant will receive the benefit of a change in the law that occurs while his or her case is pending on direct appeal. Rather, its holding is that a movant under K.S.A. 22-3504(1) "is stuck with the law in effect at the time the sentence was pronounced." 309 Kan. at 592, 439 P.3d 307. Likewise, Murdock II did not intend to foreclose the possibility that developments in the law might call for a reassessment of the original legality of the sentence at the time of pronouncement; to the contrary, its focus was on "true changes in the law." 309 Kan. at 592, 439 P.3d 307. See also State v. McAlister , 310 Kan. ----, 444 P.3d 923, 925-27 (2019) ; State v. Dawson , 310 Kan. ----, 444 P.3d 974, 979 (2019) ; and State v. Tauer , 310 Kan. ----, 444 P.3d 936, 937-38 (2019).

Sartin was sentenced in 1995. He contends that his sentence was subsequently rendered illegal by Apprendi 's prohibition on judicial fact-finding and subsequent decisions from this court, i.e., the law upon which Sartin relies to argue illegality of his sentence was not the law in effect when his sentence was pronounced. Murdock II precludes that subsequent-change-in-the-law argument. Further, as a matter of statutory law, in State v. Weber , 309 Kan. 1203, 1209, 442 P.3d 1044 (2019), this court held " Wetrich was a change in the law as contemplated by Murdock II "; therefore, Sartin is precluded from arguing " Wetrich makes his sentence, which was legal when it was imposed, illegal." The legality of Sartin's sentence must be assessed by the comparability test applicable when his sentence was pronounced, i.e., the closest approximation test.

The Court of Appeals determined that the Illinois crime of aggravated criminal sexual abuse, Ill. Stat. Ch. 38, ¶ 12-16 (1992), was comparable to the Kansas crime of aggravated sexual battery, K.S.A. 1994 Supp. 21-3518. Because aggravated sexual battery was a person felony in Kansas, the Illinois conviction for the comparable crime of aggravated criminal sexual abuse was scored as a person felony. We agree.

Ill. Stat. Ch. 38, ¶ 12-16 (1992) describes multiple ways in which the crime may be committed. In this case we know Sartin was convicted under subsection 12-16(a)(1), which states:

"(a) The accused commits aggravated criminal sexual abuse if he or she commits criminal sexual abuse as defined in subsection (a) of Section 12-15 of this Code and any of the following aggravating circumstances existed during the commission of the offense:
(1) the accused displayed, threatened to use or used a dangerous weapon or any object fashioned or utilized in such a manner as to lead the victim under the circumstances reasonably to believe it to be a dangerous weapon[.]" Ill. Stat. Ch. 38, ¶ 12-16 (1992).

"Criminal sexual abuse" is defined by Ill. Stat. Ch. 38, ¶ 12-15 (1992) as an act of "sexual conduct" by the use of force or threat; when the victim is unable to understand or give consent; or when certain age discrepancies exist.

"Sexual conduct" is

"any intentional or knowing touching or fondling by the victim or the accused, either directly or through clothing, of the sex organs, anus or breast of the victim or the accused, or any part of the body of a child under 13 years of age, for the purpose of sexual gratification or arousal of the victim or the accused." Ill. Stat. Ch. 38, ¶ 12-12(e) (1992).

Kansas aggravated sexual battery provides:

"(a) Aggravated sexual battery is the intentional touching of the person of another who is 16 or more years of age and who does not consent thereto, with the intent to arouse or satisfy the sexual desires of the offender or another under any of the following circumstances:
(1) When the victim is overcome by force or fear;
(2) when the victim is unconscious or physically powerless;
(3) when the victim is incapable of giving consent because of mental deficiency or disease, or when the victim is incapable of giving consent because of the effect of any alcoholic liquor, narcotic, drug or other substance, which condition was known by, or was reasonably apparent to, the offender.
"(b) Aggravated sexual battery is a severity level 5, person felony.
"(c) This section shall be part of and supplemental to the Kansas criminal code." K.S.A. 1994 Supp. 21-3518.

The panel, citing to Williams ' use of the "closest approximation" standard, opined that Illinois' aggravated criminal sexual abuse was "sufficiently similar in the nature and type of conduct prohibited" by Kansas' aggravated sexual battery to be a comparable crime for purposes of classifying the prior conviction as a person offense. Sartin , 2017 WL 462696, at *4. Sartin attempts to refute that comparability determination by describing hypothetical situations under which a person could be convicted of the Illinois crime, but not the Kansas crime. That tack would be compelling under Wetrich 's identical-or-narrower-elements test. But the test is closest approximation. In that vein, we agree that the gravamen of the Illinois crime closely approximates that of our aggravated sexual battery.

In short, the panel's conclusion that Illinois' aggravated criminal sexual abuse is comparable to Kansas' aggravated sexual battery and, therefore, the Illinois prior conviction was properly scored as a person felony in calculating Sartin's KSGA criminal history score was not erroneous.

FAILURE TO CONSIDER THE MERITS OF OTHER ILLEGAL SENTENCE CLAIMS

Sartin also asks us to review the Court of Appeals' decision to decline to review all of Sartin's claims of error that created an illegal sentence. As noted above, Sartin had four other prior Illinois convictions: two convictions for aggravated criminal sexual battery and two convictions for home invasion. These convictions were in 1987 and resulted from acts committed in 1984. The Kansas sentencing court used all five prior Illinois convictions to calculate Sartin's KSGA criminal history score. Consequently, if any one of the prior convictions was misclassified, the resulting criminal history score would not have conformed to statutory provisions and the Kansas sentence would have been illegal.

Nevertheless, the panel declined to consider whether other portions of the criminal history calculation were statutorily infirm. It opined that the March 1993 aggravated criminal sexual abuse "conviction alone was the subject of the motion to correct illegal sentence and this appeal is from denial of that motion." Sartin , 2017 WL 462696, at *2.

Normally issues raised for the first time on appeal are not considered. State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). Arguably, the issue raised on appeal was the legality of the Kansas sentence imposed in 1995, which was the issue raised in the motion to correct an illegal sentence. But we need not ruminate on whether the issue was the classification of each prior crime used to calculate the sentence or the legality of the ensuing sentence. In State v. Luarks , 302 Kan. 972, 975, 360 P.3d 418 (2015), we held that "[w]e have statutory authority to consider illegal sentence issues for the first time on appeal" based on the statutory directive in K.S.A. 22-3504(1) that an illegal sentence may be corrected at any time, and based on State v. Dickey , 301 Kan. 1018, 1027, 350 P.3d 1054 (2015). See also State v. Neal , 292 Kan. 625, 631, 258 P.3d 365 (2011) (citing State v. Flores , 283 Kan. 380, 153 P.3d 506 [2007] ).

Therefore, the panel erred when it declined to consider the legality of Sartin's sentence from the perspective of the classification of all five prior Illinois convictions that Sartin challenged in his brief to the Court of Appeals. Consequently, we remand the case to the Court of Appeals with instructions to consider and rule on the merits of the person offense classification of the other four Illinois convictions.

Affirmed in part and remanded with directions.


text:
    In the MATTER OF Larry Dean TOOMEY, Respondent.
    Bar Docket No. 11959
    Supreme Court of Kansas.
    Dated this day of August 29, 2019.
    ORDER OF DISBARMENT
   In a letter signed by the respondent on August 13, 2019, addressed to the Clerk of the Appellate Courts, Larry Dean Toomey, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2019 Kan. S. Ct. R. 267).

The Sedgwick County District Attorney charged the respondent with five felony offenses, including theft and mistreatment of an elderly person. The victim in the criminal case was the respondent's client. On July 29, 2019, the respondent entered a guilty plea pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L. Ed 2d 162 (1970), to two counts of felony theft in violation of K.S.A. 2018 Supp. 21-5801.

At the time the respondent surrendered his license, a disciplinary complaint regarding the criminal conduct was pending with the Disciplinary Administrator alleging a violation of Kansas Rule of Professional Conduct 8.4(b) (2019 Kan. S. Ct. R. 387) (misconduct).

This court finds that the surrender of the respondent's license should be accepted and that the respondent should be disbarred.

IT IS THEREFORE ORDERED that Larry Dean Toomey be and he is hereby disbarred from the practice of law in Kansas, and his license and privilege to practice law are hereby revoked.

IT IS FURTHER ORDERED that the Clerk of the Appellate Courts strike the name of Larry Dean Toomey from the roll of attorneys licensed to practice law in Kansas.

IT IS FURTHER ORDERED that this order shall be published in the Kansas Reports, that the costs herein shall be assessed to the respondent, and that the respondent forthwith shall comply with Supreme Court Rule 218 (2019 Kan. S. Ct. R. 268).