author: Malone, J.:

text:
    STATE of Kansas, Appellee, v. Scott W. SHAY, Appellant.
    No. 118,303
    Court of Appeals of Kansas.
    February 8, 2019
    Patrick H. Dunn, of Kansas Appellate Defender Office, for appellant.
    Rebecca S. Craig, assistant county attorney, Jason A. Vigil, assistant county attorney, Elizabeth H. Sweeney-Reeder, county attorney, and Derek Schmidt, attorney general, for appellee.
    Before Atcheson, P.J., Malone and Leben, JJ.
   Malone, J.:

Scott W. Shay appeals his convictions of rape and aggravated criminal sodomy of S.P. He raises two issues on appeal. First, Shay claims that because the State failed to present sufficient evidence that S.P. was unconscious or physically powerless, one of the alternative means of committing both charges, both convictions must be reversed. Second, Shay claims the district court erred in overruling his objections to jury instructions discouraging the jury from exercising its power of nullification. For reasons we will explain more fully in this opinion, we agree with Shay's first claim, but only as to his aggravated criminal sodomy conviction. Thus, we affirm Shay's rape conviction, but we reverse his aggravated criminal sodomy conviction and remand for a new trial on that charge, only on the alternative means supported by sufficient evidence in the first trial.

FACTUAL AND PROCEDURAL BACKGROUND

Shay, who was 49 years old at the time of the incident, was a long-time friend of S.P.'s family. S.P. considered Shay a father figure and spent every other weekend with him. S.P. would discuss things with Shay which she did not feel comfortable speaking to her mother about, such as her relationship with boys.

In early August 2015, S.P., her friend, T.M., and Shay went camping to celebrate S.P.'s 16th birthday. To start the day, they went swimming at a nearby lake. After swimming, S.P., T.M., and Shay went to Shay's farm to pick up his horse trailer, which he had converted into a camper. The group then went to a campground at a local lake.

After arriving at the campground, the girls asked Shay to go get them some alcohol from the liquor store. Shay returned with a couple six-packs of Twisted Lemonade, S.P.'s favorite alcoholic drink. The group began drinking and S.P. later testified that she had four to seven alcoholic lemonades.

Later, S.P. decided that she wanted to go skinny dipping in the lake. S.P., T.M., and Shay walked to the water and the girls asked Shay to turn around while they took off their clothes. Shay did not swim with the girls. After swimming for a little while, the girls told Shay to turn around so they could get out of the water and put their clothes back on.

Around midnight, S.P. decided to go to sleep and she laid down on her stomach in the camper. S.P. testified she was wearing pajama pants but no underwear. Shay put a blanket over S.P. and she fell asleep. At some point, T.M. also laid down in the camper and fell asleep. S.P. testified that she later woke up and discovered that her pajama pants had been pulled down to her thighs and that Shay was touching her vagina with his fingers. S.P. testified that she just laid still and did not move because she was "scared." S.P. could feel Shay penetrating her vagina with his fingers. According to S.P., Shay also put his mouth on her vagina. S.P. testified that Shay also unsuccessfully tried to penetrate her vagina with his penis. These activities lasted for about 15 minutes.

After Shay stopped touching S.P., she became enraged and started yelling at Shay while kicking and hitting him. T.M. woke up when S.P. started yelling. S.P. told T.M. that Shay had raped her and told her to call her mom. S.P. testified that she started leaving the camper and Shay followed, asking her what was wrong. Eventually, T.M.'s mom arrived and drove the girls to T.M.'s house. S.P. contacted her mom, told her what happened, and went to the police station. S.P. also participated in a rape examination.

When the police interviewed Shay, he at first said nothing happened. But he later admitted to penetrating S.P.'s vagina with his fingers. He also admitted S.P. was sleeping when the touching started.

The State charged Shay with one count of rape committed while S.P. was "overcome by force or fear" or, in the alternative, committed while S.P. was "unconscious or physically powerless." The State also charged Shay with one count of aggravated criminal sodomy committed under the same two alternatives.

Shay did not testify at trial, but he did not contest the allegations that he digitally penetrated S.P. and put his mouth on her vagina. Shay's defense at trial was that the sexual activity was consensual. The district court instructed the jury on each alternative means of rape and aggravated criminal sodomy for which Shay was charged. After deliberating, the jury found Shay guilty of both crimes. The district court sentenced Shay to 165 months' imprisonment on each count, to be served consecutively. Shay appealed.

ALTERNATIVE MEANS CLAIM

Shay first argues there was insufficient evidence to support his convictions. He does not dispute there was sufficient evidence to prove that each crime was committed while S.P. was "overcome by force or fear." But he claims that because the State failed to present sufficient evidence that S.P. was unconscious or physically powerless, one of the alternative means of committing both charges, both convictions must be reversed.

The State argues that it presented sufficient evidence that S.P. was unconscious or physically powerless when the crimes were committed. The State asserts that "unconscious" and "physically powerless" are options within a means of committing each crime and that there was sufficient evidence to support each option.

Determining whether a statute presents alternative means of committing a crime involves statutory interpretation and construction, subject to unlimited appellate review. State v. Brown , 295 Kan. 181, 193-94, 284 P.3d 977 (2012). When reviewing whether sufficient evidence supported each means in an alternative means case, an appellate court "reviews the evidence in a light most favorable to the State to determine whether a rational factfinder could have found the defendant guilty beyond a reasonable doubt." State v. McClelland , 301 Kan. 815, 820, 347 P.3d 211 (2015).

In State v. Wright , 290 Kan. 194, 224 P.3d 1159 (2010), overruled on other grounds by State v. Brooks , 298 Kan. 672, 317 P.3d 54 (2014), the Kansas Supreme Court reaffirmed the rule from State v. Timley , 255 Kan. 286, 875 P.2d 242 (1994), that in an alternative means case, when a single act may be committed in more than one way, the jury must be unanimous on guilt for the single crime charged, but the jury does not have to be unanimous as to the means by which a crime was committed, as long as there is sufficient evidence of each alternative means. Wright , 290 Kan. at 201, 224 P.3d 1159. Where, however, the State fails to provide sufficient evidence of one of the means submitted to the jury, the conviction is reversed for insufficiency of the evidence. 290 Kan. at 205, 224 P.3d 1159.

Sometimes it is hard to tell whether a statute presents alternative means of committing a crime or whether the statute merely presents options within the same means of committing the crime. The Kansas Supreme Court sets forth the appropriate test in Brown , 295 Kan. 181, Syl. ¶ 7, 284 P.3d 977. But here the parties agree that when applying that test the district court instructed the jury on two alternative means by which Shay committed both rape and aggravated criminal sodomy: (1) while S.P. was overcome by force or fear; and (2) while S.P. was unconscious or physically powerless.

Shay does not argue there was insufficient evidence to prove that the rape and aggravated criminal sodomy occurred while S.P. was overcome by force or fear. But he argues there was insufficient evidence to prove the crimes were committed while S.P. was unconscious or physically powerless. The State correctly asserts that "unconscious" and "physically powerless" are options within a means of committing each crime, so the State only needs to prove one of them, not both, to support Shay's convictions.

Sufficiency of the evidence supporting the rape conviction

The State presented sufficient evidence to support Shay's conviction of rape while S.P. was unconscious or physically powerless. This court has had held that being asleep is the same as being unconscious in the context of aggravated sexual battery. See State v. Johnson , No. 107,015, 2013 WL 1876435, at *5 (Kan. App. 2013) (unpublished opinion). In Johnson , the State charged the defendant with aggravated sexual battery, and the defendant argued that the district court should have instructed the jury on the lesser offense of misdemeanor sexual battery. This court held that the lesser included offense instruction would not have been factually appropriate because the evidence showed the victim was asleep when the touching started and misdemeanor sexual battery is not an appropriate charge when the victim is unconscious or physically powerless. This court reasoned that whether the victim was able to form conscious thoughts about the touching after she woke up was immaterial. Because the victim was "unable to prevent [the touching] from happening in the first place," a lesser included offense instruction was inappropriate. 2013 WL 1876435, at *5.

The same logic applies to Shay's rape charge. S.P. testified that she fell asleep in the camper and later woke up and discovered that Shay had pulled her pajama pants down and was touching her vagina with his fingers. S.P. testified that Shay was inserting his fingers into her vagina as soon as she woke up, meaning that the digital penetration began when she was still sleeping. Plus, Shay admitted to the police that he penetrated S.P.'s vagina with his fingers and that she was sleeping when the touching started. So there is direct evidence that S.P. was sleeping, or unconscious, when the rape occurred. When viewing the evidence in a light most favorable to the State, there was sufficient evidence that Shay raped S.P. while she was unconscious or physically powerless.

Sufficiency of the evidence supporting the aggravated criminal sodomy conviction

Whether there was sufficient evidence to support Shay's conviction of aggravated criminal sodomy is a closer question. There was no evidence presented in the case showing that Shay touched S.P.'s vagina with his mouth while she was still asleep. As we just discussed, S.P. testified that when she woke up, Shay was already inserting his fingers into her vagina. S.P. also testified that during the 15 minutes that she laid there awake, Shay put his mouth on her vagina. But S.P.'s testimony fails to establish that Shay sodomized S.P. while she was still sleeping or unconscious. And there was no other evidence that Shay committed this act while S.P. was sleeping, as Shay denied to the police that he ever touched S.P.'s vagina with his mouth.

On whether S.P. was physically powerless, she admitted that she was capable of moving and that Shay "wasn't holding [her] down or anything." But she testified that she did not move because she was "scared." The State argues that S.P. "froze and was physically powerless during the rape and aggravated criminal sodomy."

To support its position, the State cites State v. Parker , 48 Kan. App. 2d 68, 282 P.3d 643 (2012), where this court briefly discussed the term "physically powerless" in a rape case, holding that the "ordinary meaning of 'physically powerless' in the context of the rape statute doesn't require total immobility; it requires only a physical inability to resist the attacker." 48 Kan. App. 2d at 81, 282 P.3d 643. In Parker , the victim was a 94-year-old women who was recovering from surgery at a hospital, was unable to walk without assistance, and was " 'very weak' " at the time. 48 Kan. App. 2d at 70, 282 P.3d 643. The defendant outweighed the victim by around 150 pounds, and the victim testified that she could not have done anything to fight him. This court held that there was "sufficient evidence to find that [the victim's] age, frailty, and weakness left her physically powerless to resist Parker, a man who was far bigger, stronger, and younger." 48 Kan. App. 2d at 81, 282 P.3d 643.

In Parker , the victim was truly "physically powerless" to resist her attacker because of her age and frailty compared to the defendant's size. That is not the situation we have here. S.P. admitted that she was capable of moving and that Shay "wasn't holding [her] down or anything." But she testified that she did not try to move out of fear.

K.S.A. 2017 Supp. 21-5504(b)(3), the statute defining aggravated criminal sodomy, lists two pertinent alternative means of committing the crime, when the victim is (A) overcome by force or fear; or (B) unconscious or physically powerless. We agree with Shay that allowing a victim's testimony that she was too scared to move to serve as evidence of physical powerlessness would eliminate any distinction between the two alternative means of committing the crime. This is not a situation like the one in Parker ; here, there was no evidence presented that S.P. was physically powerless in relation to Shay. See Parker , 48 Kan. App. 2d at 81, 282 P.3d 643.

Even when viewing the evidence in a light most favorable to the State, there was no evidence that S.P. was unconscious or physically powerless when Shay touched her vagina with his mouth. As a result, there was insufficient evidence to support Shay's conviction of aggravated criminal sodomy under this alternative means of committing the crime and his conviction on that count must be reversed.

Remedy

We are not reversing Shay's aggravated criminal sodomy conviction because there was insufficient evidence that he committed the crime; indeed, Shay does not dispute there was sufficient evidence to prove that the crime was committed while S.P. was overcome by force or fear. But the district court instructed the jury that it could find Shay guilty of aggravated criminal sodomy based on an alternative means not supported by the evidence, i.e., the crime was committed while S.P. was unconscious or physically powerless. Our Supreme Court has held an alternative means error can never be harmless and always requires reversal of the defendant's conviction. Wright , 290 Kan. at 205, 224 P.3d 1159.

In State v. Shaw , 47 Kan. App. 2d 994, Syl. ¶ 5, 281 P.3d 576 (2012), rev. denied 297 Kan. 1255 (2012), our court held: "When there is insufficient evidence at trial to support the defendant's conviction of each alternative means of committing a crime, the proper remedy is to reverse the defendant's conviction and remand for a new trial only on the alternative means supported by sufficient evidence in the first trial." The Kansas Supreme Court identified the same remedy for an alternative means error in State v. Owen , No. 102814, 2015 WL 1309978 (Kan. 2015) (unpublished opinion). In Owen , the defendant was convicted of forgery, but there was insufficient evidence to support each alternative means of committing the crime. Our Supreme Court held that the proper remedy was to remand for a new trial only on the alternative means of committing forgery supported by sufficient evidence in the first trial:

"Finally, the State makes a brief argument that challenges the disposition utilized by the Court of Appeals. The panel simply reversed Owen's convictions. The State contends that Owen was not acquitted of forgery, but rather she was convicted based upon sufficient evidence of only two of the charged three alternative means. Therefore, the State contends that the appropriate disposition is to reverse the conviction and remand for a new trial on the alternatives for which there was sufficient competent evidence in the first trial. That way, we can preserve the concept that it is the jury's function to determine guilt, while still preserving the concept that a defendant has a right to jury unanimity. We agree. Owen was not acquitted of forgery, albeit she was not legitimately convicted of having endorsed the check." 2015 WL 1309978, at *7.

Based on Shaw and Owen , we reverse Shay's aggravated criminal sodomy conviction and remand for a new trial only on the alternative means supported by sufficient evidence in the first trial, i.e., the crime was committed while S.P. was overcome by force or fear. The State cannot retry Shay for aggravated criminal sodomy committed while S.P. was unconscious or physically powerless because there was insufficient evidence to support that conviction in the first trial, and a retrial on this alternative means is barred by double jeopardy. See Burks v. United States , 437 U.S. 1, 11, 16-18, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978) (reversal for insufficient evidence is akin to judgment of acquittal warranting double jeopardy protection).

JURY INSTRUCTIONS ON NULLIFICATION

Shay also claims the district court erred in overruling his objections to jury instructions discouraging the jury from exercising its power of nullification. The State responds that the jury instructions given by the district court correctly stated the law and did not amount to reversible error.

"When analyzing jury instruction issues, we follow a three-step process: '(1) determining whether the appellate court can or should review the issue, i.e. , whether there is a lack of appellate jurisdiction or a failure to preserve the issue for appeal; (2) considering the merits of the claim to determine whether error occurred below; and (3) assessing whether the error requires reversal, i.e. , whether the error can be deemed harmless.' [Citation omitted.]" State v. McLinn , 307 Kan. 307, 317, 409 P.3d 1 (2018). At the second step, appellate courts consider whether the instruction was legally and factually appropriate, using an unlimited review of the entire record. 307 Kan. at 318, 409 P.3d 1.

Shay challenges four instructions given by the district court as erroneous, included below with his proposed language in italics and the language he proposed be removed struck through:

• "Now that you have been chosen as jurors for this trial, you are required to decide this case onlyon the evidence admitted. At the end of the case, I will instruct you on the law that you must may apply to the evidence in order to reach a verdict."
• "It is my duty to instruct you in the law that applies to this case, and it is your duty to consider and follow all of the instructions. You must may decide the case by applying these instructions to the facts as you find them."
• "The test you must use in determining whether [the defendant] is guilty or not guilty is this: If you have a reasonable doubt as to the truth of any of the claims required to be proved by the State ..., you must find [the defendant] not guilty. If you have no reasonable doubt as to the truth of each of the claims required to be proved by the State ..., you should may find [the defendant] guilty."
• "Your verdict must may be founded entirelyupon the evidence admitted and the law as given in these instructions."

The first instruction set forth above was given orally by the district court as a preliminary instruction at the beginning of the trial and is found at Pattern Instructions for Kansas (PIK) Crim. 4th 50.010. The second instruction set forth above was given by the district court at the end of the trial as written instruction number 1 and is found at PIK Crim. 4th 50.040. The third instruction set forth above was given by the district court at the end of the trial as part of written instruction number 6 and is found at PIK Crim. 4th 51.010. The fourth instruction set forth above was given by the district court at the end of the trial as part of written instruction number 14 and is found at PIK Crim. 4th 68.010.

The district court rejected Shay's modification to each jury instruction, and Shay has preserved the objections for review. Thus, we can move to the second step of the analysis and determine whether error occurred below by deciding whether the requested instructions were factually and legally appropriate.

We will start with Shay's requested reasonable doubt instruction. As Shay points out in his brief, the Kansas Supreme Court has recognized that the jury has the power of jury nullification. See State v. Osburn , 211 Kan. 248, 255, 505 P.2d 742 (1973). And it is clear error to instruct a jury that if it has no reasonable doubt about the defendant's guilt, then the jury "will enter a verdict of guilty." (Emphasis added.) State v. Smith-Parker , 301 Kan. 132, Syl. ¶ 6, 340 P.3d 485 (2014).

But using the word should is a different story. This court has rejected Shay's argument about the reasonable doubt instruction in several opinions. See State v. Allen , 52 Kan. App. 2d 729, 735, 372 P.3d 432 (2016), rev. denied 306 Kan. 1320 (2017); State v. Trotter , No. 114743, 2017 WL 3668908, at *3-5 (Kan. App. 2017) (unpublished opinion), rev. denied 307 Kan. 993 (2018); State v. Ulmer , No. 114315, 2016 WL 7428362, at *8-9 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1330 (2017); State v. Cuellar , No. 112535, 2016 WL 1614037, at *1-2 (Kan. App. 2016) (unpublished opinion), rev. denied 306 Kan. 1322 (2017). We adopt the reasoning of these decisions and reject Shay's argument about the reasonable doubt instruction.

As to Shay's other objections, the court must not direct a verdict through the jury instructions. Smith-Parker , 301 Kan. 132, Syl. ¶ 6, 340 P.3d 485. But the instructions here do not direct a verdict. The instructions given by the district court mirror the pattern instructions, and district courts are encouraged to use these pattern instructions as they "have been developed by a knowledgeable committee to bring accuracy, clarity, and uniformity to jury instructions." Allen , 52 Kan. App. 2d at 734, 372 P.3d 432. While jurors in a criminal case have the power of nullification, the proper duty of a jury is to accept the rules of law given to it, apply the rules to the facts of the case, and deliver a verdict based on those rules and the facts. State v. McClanahan , 212 Kan. 208, 217, 510 P.2d 153 (1973).

Shay's requested instructions were not legally appropriate. The instructions given here did not sidestep the holding in Smith-Parker , none of the instructions flew "too close to the sun of directing a verdict for the State." See Smith-Parker , 301 Kan. at 164, 340 P.3d 485 ; Allen , 52 Kan. App. 2d at 735, 372 P.3d 432. Because Shay's requested instructions were not legally appropriate, the district court did not err by overruling Shay's objections.

Affirmed in part, reversed in part, and remanded with directions.


source: Caselaw Access Project

license: Public Domain

text:
    Steven W. PONDS, Appellant, v. STATE of Kansas, Appellee.
    No. 119,057
    Court of Appeals of Kansas.
    Opinion filed February 8, 2019.
    Roger L. Falk, of Law Office of Roger L. Falk, P.A., of Wichita, for appellant.
    Lance J. Gillett, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.
    Before Atcheson, P.J., Malone and Leben, JJ.
   Malone, J.:

Steven W. Ponds appeals the district court's summary denial of his K.S.A. 60-1507 motion. Ponds argues that the district court erred when it summarily denied his motion and that he is entitled to a hearing. The State first argues that this court lacks jurisdiction to hear the appeal because Ponds' notice of appeal was untimely. The State also argues that the district court correctly denied Ponds' motion. We disagree with the State's jurisdictional claim, but on the merits we affirm the district court's judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In 2009, the State charged Ponds with 14 felony charges, including aggravated burglary, attempted burglary, as well as several counts of burglary and theft. Before trial, Ponds sought to suppress: (1) evidence of his footwear because he claimed the officers lacked probable cause to support his arrest; and (2) evidence from GPS tracking devices attached to his vehicles because the search warrant application failed to provide a substantial basis for the issuing magistrate to conclude there was a fair probability contraband or evidence would be found as a result of those devices. After an evidentiary hearing, the district court denied Ponds' motion to suppress the evidence.

After a bench trial in 2012, the district court found Ponds guilty of all charges. The district court sentenced Ponds to a controlling term of 244 months in prison. Ponds filed a direct appeal challenging the sufficiency of the evidence and the district court's rulings on the motion to suppress evidence. This court affirmed his convictions and sentence in State v. Ponds , No. 109,965, 2015 WL 249836 (Kan. App. 2015) (unpublished opinion), cert. denied --- U.S. ----, 136 S.Ct. 2024, 195 L.Ed.2d 228 (2016) ( Ponds I ).

While his direct appeal was pending, Ponds filed a motion to correct an illegal sentence, asserting that the district court erroneously classified his pre-1993 convictions as person felonies in calculating his criminal history score. The district court summarily denied relief, and this court affirmed that decision in State v. Ponds , No. 114,761, 2016 WL 6822176 (Kan. App. 2016) (unpublished opinion) ( Ponds II ).

On May 3, 2017, Ponds filed a K.S.A. 60-1507 motion. Ponds challenged: (1) the district court's refusal to suppress his footwear because of a lack of probable cause; (2) the sufficiency of the evidence to support his convictions; and (3) the district court's denial of his request to suppress the GPS evidence for lack of probable cause.

On June 26, 2017, the district court filed a journal entry summarily denying Ponds' K.S.A. 60-1507 motion, finding that the three issues raised were the same issues Ponds raised on direct appeal. The district court also found that Ponds' motion contained several conclusory statements, unsupported by any legal argument or evidentiary basis.

On July 17, 2017, Ponds filed a timely motion for reconsideration of the district court's K.S.A. 60-1507 judgment. Then on November 16, 2017, while the motion for reconsideration was still pending, Ponds filed a notice of appeal of the district court's "decision to deny his 60-1507 motion."

On January 29, 2018, the district court denied Ponds' motion for reconsideration, finding that it lacked jurisdiction because of the pending appeal. On March 14, 2018, this court granted Ponds' motion to docket his appeal out of time. Ponds did not file a separate notice of appeal from the district court's denial of his motion for reconsideration.

On appeal, Ponds argues that the district court erred when it summarily denied his K.S.A. 60-1507 motion. Ponds argues that his K.S.A. 60-1507 motion, when read broadly, asserts a claim of ineffective assistance of counsel that can only be resolved with an evidentiary hearing. He also argues that in summarily denying his K.S.A. 60-1507 motion, the district court failed to make sufficient findings of fact and conclusions of law to comply with Kansas Supreme Court Rule 183(j) (2019 Kan. S. Ct. R. 228).

The State first argues that this court lacks jurisdiction over the appeal because Ponds failed to file his notice of appeal in a timely manner. On the merits, the State argues that the district court correctly denied Ponds' K.S.A. 60-1507 motion.

DOES THIS COURT HAVE JURISDICTION OVER THIS APPEAL?

To begin with the State questions this court's jurisdiction over this appeal. Ponds does not address the jurisdictional issue. Whether jurisdiction exists is a question of law over which an appellate court's scope of review is unlimited. State v. Dull , 302 Kan. 32, 61, 351 P.3d 641 (2015).

The right to appeal is entirely statutory and is not contained in the United States or Kansas Constitutions. Subject to certain exceptions not applicable here, Kansas appellate courts only have jurisdiction to consider appeals taken in the manner prescribed by statute. State v. Smith , 304 Kan. 916, 919, 377 P.3d 414 (2016) ; Wiechman v. Huddleston , 304 Kan. 80, 86-87, 370 P.3d 1194 (2016).

Here, the four relevant dates and filings that affect this court's jurisdiction are:

• June 26, 2017 (the district court filed an order denying the K.S.A. 60-1507 motion)
• July 17, 2017 (Ponds filed a motion for reconsideration)
• November 16, 2017 (Ponds filed a notice of appeal)
• January 29, 2018 (the district court denied the motion for reconsideration)

A K.S.A. 60-1507 proceeding is a civil action. Under K.S.A. 2017 Supp. 60-2102(a)(4), the appellate jurisdiction of the court of appeals may be invoked by appeal as a matter of right from a final decision in any action, except in an action where a direct appeal to our Supreme Court is required by law. "A 'final decision' generally disposes of the entire merits of the case and leaves no further questions or the possibility of future directions or actions by the court." In re T.S.W. , 294 Kan. 423, 433, 276 P.3d 133 (2012).

Under K.S.A. 2017 Supp. 60-2103(a), a notice of appeal must be filed within 30 days from the entry of judgment. Here, the district court filed its order denying the K.S.A. 60-1507 motion on June 26, 2017. Ponds did not file a notice of appeal until November 16, 2017, well beyond 30 days from the district court's entry of judgment. But Ponds filed a timely motion for reconsideration on July 17, 2017. See K.S.A. 2017 Supp. 60-259(f) (motion to alter or amend judgment must be filed no later than 28 days after entry of judgment). Ponds' motion for reconsideration qualified as a motion to alter or amend judgment. See Hundley v. Pfuetze , 18 Kan. App. 2d 755, 756, 858 P.2d 1244 (1993).

K.S.A. 2017 Supp. 60-2103(a) goes on to provide:

"The running of the time for appeal is terminated by a timely motion made pursuant to any of the rules hereinafter enumerated, and the full time for appeal fixed in this subsection commences to run and is to be computed from the entry of any of the following orders made upon a timely motion under such rules: Granting or denying a motion for judgment under subsection (b) of K.S.A. 60-250, and amendments thereto; or granting or denying a motion under subsection (b) of K.S.A. 60-252, and amendments thereto, to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; or granting or denying a motion under K.S.A. 60-259, and amendments thereto, to alter or amend the judgment; or denying a motion for new trial under K.S.A. 60-259, and amendments thereto."

Under K.S.A. 2017 Supp. 60-2103(a), Ponds' timely filing of a motion to alter or amend judgment terminated the running of the time for appeal. Under that statute, the "full time for appeal" commenced to run from the entry of an order "[g]ranting or denying a motion under K.S.A. 60-259." K.S.A. 2017 Supp. 60-2103(a).

The problem in this case arises because Ponds filed his notice of appeal from the district court's decision to deny his K.S.A. 60-1507 motion on November 16, 2017, before the district court ruled on his motion for reconsideration. As a result, Ponds' notice of appeal was premature because it was filed before the district court's judgment on the K.S.A. 60-1507 motion became final. The district court eventually denied Ponds' motion for reconsideration on January 9, 2018, finding that it lacked jurisdiction to rule on the motion for reconsideration because of the pending appeal. This finding was incorrect because the district court did not actually lose jurisdiction over the case until Ponds docketed his appeal, which did not occur until March 14, 2018. See City of Kansas City v. Lopp , 269 Kan. 159, 160, 4 P.3d 592 (2000) (finding that once the appeal is docketed in the appellate courts, the district court loses jurisdiction). Ponds did not file a separate notice of appeal after the district court denied his motion for reconsideration.

The State argues that Ponds' premature notice of appeal is not saved by Kansas Supreme Court Rule 2.03 (2019 Kan. S. Ct. R. 14). Supreme Court Rule 2.03 covers premature notices of appeal in civil cases and provides:

"(a) When a Premature Notice of Appeal is Effective. A notice of appeal that complies with K.S.A. 60-2103(b) -filed after a judge of the district court announces a judgment to be entered, but before the actual entry of judgment-is effective as notice of appeal under K.S.A. 60-2103 if it identifies the judgment or part of the judgment from which the appeal is taken with sufficient certainty to inform all parties of the rulings to be reviewed on appeal. "(b) Timing of a Notice of Appeal Challenging Certain Posttrial Motions. A party intending to challenge an order disposing of any of the following motions, or a judgment's alteration or amendment upon such a motion, must file a notice of appeal-in compliance with these rules-not later than 30 days after the entry of the order disposing of the last such remaining motion:
(1) for judgment under K.S.A. 60-250(b) ;
(2) to amend or make additional factual findings under K.S.A. 60-252(b), whether or not granting the motion would alter the judgment;
(3) to alter or amend the judgment under K.S.A. 60-259 ;
(4) for a new trial under K.S.A. 60-259 ; or
(5) for relief under K.S.A. 60-260 if the motion is filed not later than 28 days after the judgment is entered." (2019 Kan. S. Ct. R. 14-15.)

The State argues that Rule 2.03(a) is limited to those situations in which the notice of appeal is filed after the time the district court announces a judgment to be entered, but before the actual entry of judgment. The State's argument may be correct under the plain language of Rule 2.03(a). Had Ponds filed a notice of appeal after the district court announced its judgment on the K.S.A. 60-1507 motion but before the actual entry of judgment, then the language of Rule 2.03(a) would save Ponds' notice of appeal.

But that is not what happened here. The district court did not announce a judgment from the bench on Ponds' K.S.A. 60-1507 motion; rather, the district court simply entered judgment on the motion by filing a written journal entry on June 26, 2017. Ponds did not file a notice of appeal after the district court announced the judgment but "before the actual entry of judgment" as contemplated by Rule 2.03(a). Instead, Ponds filed his notice of appeal from the district court's decision to deny his K.S.A. 60-1507 motion after the district court entered its judgment on June 26, 2017, but before the district court ruled on his motion for reconsideration of the judgment. Under these facts, the plain language of Rule 2.03(a) does not appear to save Ponds' premature notice of appeal. Likewise, Ponds' notice of appeal was not timely under Rule 2.03(b) because he failed to file a separate notice within 30 days after the denial of his motion for reconsideration.

We now turn to Kansas caselaw construing Supreme Court Rule 2.03. In Miller v. Safeco Ins. Co. of America , 11 Kan. App. 2d 91, 712 P.2d 1282 (1986), a personal injury action, Ronald Miller sued both the alleged tortfeasor, Mark Gober, and his own insurer, Safeco Insurance Company of America (Safeco), for underinsured motorist coverage. Safeco was granted summary judgment on September 7, 1984, but the district court did not certify the judgment as a final judgment under K.S.A. 60-254(b). On September 24, 1984, Miller filed his notice of appeal of the summary judgment granted to Safeco, while his claim against Gober was still pending. On September 27, 1984, the district court dismissed with prejudice Miller's suit against Gober. Miller did not file a separate notice of appeal after Gober was dismissed from the suit.

On appeal, Miller conceded that his notice of appeal filed on September 24, 1984, before a final judgment was rendered as to all parties, constituted a premature notice of appeal. But Miller invoked Supreme Court Rule 2.03 and argued that this court had jurisdiction to consider his appeal. This court rejected Miller's argument and dismissed his appeal with the following analysis:

"After Miller filed his notice of appeal on September 24, 1984, Gober was dismissed with prejudice by a journal entry filed three days later on September 27, 1984. The journal entry granting Safeco summary judgment became a final judgment subject to appeal on that date. A final judgment from which no appeal was taken does not retroactively validate a premature notice of appeal from an interlocutory order granting summary judgment to one party. To extend Rule 2.03 to these facts would effectively nullify the purpose of K.S.A. 60-254(b). Rule 2.03 is limited to those situations where the notice of appeal is filed after the time the decision is announced, but before a final judgment is entered pursuant to K.S.A. 60-258. The Rule does not save an appeal where the notice of appeal is filed from an interlocutory decision which later becomes part of the final judgment disposing of all issues in the litigation. See United States v. Taylor , 632 F.2d 530, 531 (5th Cir.1980)." ( Emphasis added.) 11 Kan. App. 2d at 94, 712 P.2d 1282.

Miller supports the State's position herein because it applies the plain language of Rule 2.03 and holds the rule is limited to those situations in which the notice of appeal is filed after the district court announces a decision but before the actual entry of the judgment. If the law in Miller still stands, then the State is correct that Rule 2.03 does not save Ponds' appeal. But unfortunately for the State, the holding in Miller was short-lived.

Honeycutt v. City of Wichita , 251 Kan. 451, 836 P.2d 1128 (1992), is another case, like Miller , in which a party filed a premature notice of appeal after some defendants were dismissed in district court but before the judgment became final as to all defendants. In Honeycutt , the plaintiff, a minor, lost both legs when he was run over by a train within the city limits of Wichita as he walked home from kindergarten. The plaintiff sued the City of Wichita, U.S.D. No. 259, and two different railroad companies. The district court granted summary judgment in favor of the City and U.S.D. No. 259, but the court did not certify the judgment as final under K.S.A. 60-254(b). The plaintiff filed a notice of appeal of the summary judgment ruling while the claims against the two railroad companies were still pending. The claims against the railroad companies were later settled and a journal entry was filed disposing of all claims. The plaintiff then filed another notice of appeal, but it was later found to be untimely and came too late to give the appellate court jurisdiction. 251 Kan. at 458-59, 836 P.2d 1128.

On appeal before the Kansas Supreme Court, U.S.D. No. 259 contended that Rule 2.03 should not save the plaintiff's first notice of appeal and argued that the court should follow the Court of Appeals' decision in Miller v. Safeco to dismiss the appeal. Our Supreme Court noted that if it followed Miller v. Safeco 's interpretation of Rule 2.03, the answer was clear that it should dismiss the appeal. 251 Kan. at 457, 836 P.2d 1128. But after engaging in an extensive discussion of Rule 2.03, Kansas statutes on civil and appellate procedure, and state and federal cases, our Supreme Court rejected Miller v. Safeco 's interpretation of Rule 2.03. 251 Kan. at 457-62, 836 P.2d 1128. Relying on the liberal construction policy of civil procedure statutes to ensure that cases are decided on the merits and to eliminate traps for attorneys and pro se litigants, our Supreme Court found that it had jurisdiction over the plaintiff's appeal. 251 Kan. at 459-62, 836 P.2d 1128.

"We hold that if a judgment is entered disposing of all claims against one of multiple parties, and a premature notice of appeal is filed and has not been dismissed, then a final judgment disposing of all claims and all parties validates the premature notice of appeal concerning the matters from which the appellant appealed. The appellee will not be prejudiced because the appellee will know of the intent to appeal prior to final judgment and would be in the same position as if a notice of appeal had been filed after the final judgment.
"Syllabus ¶¶ 2 and 3 and the corresponding portion of the opinion of Miller v. Safeco Ins. Co. of America, 11 Kan. App. 2d 91, 712 P.2d 1282, rev. denied 238 Kan. 878 (1986), are overruled." Honeycutt , 251 Kan. at 462, 836 P.2d 1128.

So it appears that our Supreme Court has rejected the State's strict construction of Supreme Court Rule 2.03, and the court has adopted a more liberal interpretation of the rule in conjunction with Kansas statutes on civil and appellate procedure. The court in Honeycutt relied on Rule 2.03, in part, to validate a premature notice of appeal in a situation that did not strictly fit within the parameters of the rule.

This brings us back to the effect of Ponds' timely motion for reconsideration. In cases with facts almost identical to the facts herein, Kansas courts have relied on Rule 2.03, at least in part, to validate a premature notice of appeal filed while a motion for reconsideration of the judgment was still pending in district court. For instance, in Cornett v. Roth , 233 Kan. 936, 666 P.2d 1182 (1983), the district court entered judgment in favor of the defendants on October 5, 1982. The plaintiffs filed a motion to reconsider on October 15, 1982. Then, before the motion to reconsider was ruled on, the plaintiffs filed a notice of appeal on November 2, 1982. The district court overruled the motion to reconsider on November 10, 1982. Under these facts, and without engaging in any lengthy analysis, our Supreme Court allowed the notice of appeal to become a valid premature notice of appeal, finding that

"Defendants have shown no prejudice resulting from the alleged premature filing of the notice of appeal. Considering the liberal construction to be given our procedural statutes and rules and the intent of our code of civil procedure and our appellate rules, we find no fatal jurisdictional defects and will proceed to determine the appeal on the merits. See K.S.A. 60-102 ; Supreme Court Rule 203 (230 Kan. xcix)." 233 Kan. at 939-40, 666 P.2d 1182.

On the same day our Supreme Court decided Honeycutt , it also decided Resolution Trust Corp. v. Bopp , 251 Kan. 539, 836 P.2d 1142 (1992). In Resolution Trust , the district court entered judgment in a mortgage foreclosure case on June 24, 1991. A party who asserted an interest in the property filed a motion to alter or amend the judgment on June 28, 1991. Another party who had a judgment lien on the property filed a notice of appeal on July 16, 1991, while the motion to alter or amend was pending. The district court denied the motion to alter or amend on August 23, 1991.

The Court of Appeals issued an order to show cause why the appeal should not be dismissed based on Miller v. Safeco , and it dismissed the appeal before the Supreme Court filed its decision in Honeycutt . On a petition for review, our Supreme Court reinstated the appeal. Resolution Trust , 251 Kan. at 545, 836 P.2d 1142. Relying on Cornett and Honeycutt , the court held that Rule 2.03 validates a premature notice of appeal filed after a motion to alter or amend the judgment is filed, but before the motion to alter or amend is denied. Resolution Trust , 251 Kan. 539, Syl. ¶ 3, 836 P.2d 1142. The court observed that the result was contrary to rulings in federal cases because Federal Rule of Appellate Procedure 4(a) is substantially different from K.S.A. 1991 Supp. 60-2103(a) and Supreme Court Rule 2.03. 251 Kan. at 544, 836 P.2d 1142. The court went on to rely in part on Rule 2.03 to uphold its ruling, without actually analyzing the language of the rule. 251 Kan. at 544-45, 836 P.2d 1142.

The most recent decision from this court on this issue reaches the same result as our Supreme Court reached in Cornett and Resolution Trust . In Hundley , the district court granted summary judgment on October 9, 1992, and mailed a memorandum decision to the parties that same day. On October 28, 1992, Hundley filed her motion asking the court to reconsider its order granting summary judgment. On November 9, 1992, she filed a notice of appeal from the order granting summary judgment. The district court did not rule on the motion to reconsider until December 14, 1992.

Under those facts, this court ruled: "A notice of appeal filed after a final judgment on the merits but before the trial court's ruling on a motion to alter or amend judgment is premature. However, it can 'ripen' into a valid notice of appeal when all the claims against the parties are resolved." 18 Kan. App. 2d at 756-57, 858 P.2d 1244. This court quoted the language of Supreme Court Rule 2.03, and without actually analyzing the language of the rule, this court stated: "This rule promotes the determination of appeals upon their merits and eliminates the formal rigidity that hampered litigants and their attorneys in the past." 18 Kan. App. 2d at 757, 858 P.2d 1244.

The State's brief notes Cornett , Resolution Trust , and Hundley but tries to distinguish those cases by correctly pointing out that the notice of appeal in those cases was otherwise timely filed within 30 days of the judgment. But the court's analysis in those cases did not turn on that fact, and we do not see how it makes a difference. If a timely motion for reconsideration terminates the running of the time for appeal, then Ponds' notice of appeal filed on November 16, 2017, was timely , but it was premature because the motion for reconsideration was still pending. This is the same situation as in Cornett , Resolution Trust , and Hundley , and in each of those cases the court allowed the notice of appeal to stand as a premature notice of appeal, either under a liberal construction of K.S.A. 60-2103(a) or under Supreme Court Rule 2.03.

The State makes much of the fact that under K.S.A. 2017 Supp. 60-2103(a), the filing of a motion for reconsideration terminates the time for appeal, rather than tolls the time for appeal. The State argues that Ponds' motion for reconsideration filed on July 17, 2017, terminated his right to appeal the K.S.A. 60-1507 judgment, so that his notice of appeal filed on November 16, 2017, had no effect. We disagree. K.S.A. 2017 Supp. 60-2103(a) states that "[t]he running of the time for appeal is terminated by a timely motion" for reconsideration. (Emphasis added.) Ponds' motion for reconsideration filed on July 17, 2017, did not terminate his right to appeal the district court's judgment. Instead, the motion for reconsideration terminated the running of the time for appeal. But this fact does not mean that Ponds' later notice of appeal had no effect, and such a finding would be contrary to the courts' rulings in Cornett , Resolution Trust , and Hundley .

So where does all this discussion leave us? The State may be correct that the plain language of Rule 2.03(a) is limited to those situations in which the notice of appeal is filed after the time the district court announces a judgment to be entered, but before the actual entry of the judgment. But this court interpreted and limited Rule 2.03 in this way in Miller v. Safeco , and that ruling was expressly overruled by our Supreme Court in Honeycutt . In Resolution Trust , our Supreme Court addressed facts almost identical to the facts in Ponds' case and held Rule 2.03 validates a premature notice of appeal filed after a motion to alter or amend the judgment is filed, but before the motion to alter or amend is denied. 251 Kan. 539, Syl. ¶ 3, 836 P.2d 1142. We have found no Kansas Supreme Court case since Resolution Trust that addresses this precise issue. This court is duty bound to follow Kansas Supreme Court precedent, absent some indication the Supreme Court is departing from its previous position. Majors v. Hillebrand , 51 Kan. App. 2d 625, 629-30, 349 P.3d 1283 (2015), rev. denied 303 Kan. 1078, --- P.3d ---- (2016). We have no indication that our Supreme Court is departing from its holdings in Cornett , Honeycutt , and Resolution Trust .

Based on Cornett , Resolution Trust , and Hundley , we find that this court has jurisdiction over Ponds' appeal of the district court's judgment entered on June 26, 2017, summarily denying his K.S.A. 60-1507 motion. Ponds' notice of appeal filed on November 16, 2017, was not out of time because it was filed while a timely motion for reconsideration was pending. Although the notice of appeal was filed before the district court ruled on the motion for reconsideration, this act does not deprive this court of jurisdiction to review the district court's original judgment denying the K.S.A. 60-1507 motion. But because Ponds did not file a separate notice of appeal identifying the district court's ruling on the motion for reconsideration, we lack jurisdiction to review that ruling.

DID THE DISTRICT COURT ERR IN SUMMARILY DENYING PONDS' K.S.A. 60-1507 MOTION?

Turning to the merits of the appeal, Ponds argues that the district court erred in summarily denying his K.S.A. 60-1507 motion without holding an evidentiary hearing. Ponds now claims that his K.S.A. 60-1507 motion, when read broadly, asserted an ineffective assistance of counsel claim that could only be resolved with an evidentiary hearing. He also claims that the district court's findings violated Supreme Court Rule 183(j). The State argues that the district court correctly denied Ponds' motion.

A district court has three options when handling a K.S.A. 60-1507 motion:

" '(1) The court may determine that the motion, files, and case records conclusively show the prisoner is entitled to no relief and deny the motion summarily; (2) the court may determine from the motion, files, and records that a potentially substantial issue exists, in which case a preliminary hearing may be held. If the court then determines there is no substantial issue, the court may deny the motion; or (3) the court may determine from the motion, files, records, or preliminary hearing that a substantial issue is presented requiring a full hearing.' [Citation omitted.]" Sola-Morales v. State , 300 Kan. 875, 881, 335 P.3d 1162 (2014).

Here, the district court summarily denied Ponds' K.S.A. 60-1507 motion. When the district court summarily denies a K.S.A. 60-1507 motion, an appellate court has unlimited review to determine whether the motion, files, and records of the case conclusively establish that the movant is not entitled to relief. 300 Kan. at 881, 335 P.3d 1162.

The three claims Ponds raised in his K.S.A. 60-1507 were stated as follows:

• "Footwear should have been suppressed due to lack of probable cause to support the arrest."
• "Insufficient evidence to support a guilty verdict on the subject offenses."
• "Lack of probable cause to obtain a warrant to place a GPS device on defendant's car."

In Ponds' direct appeal, this court considered these exact claims and ruled adversely to Ponds in affirming his convictions. Ponds I , 2015 WL 249836, at *4, 9. Ponds' attempt to relitigate the same claims in his K.S.A. 60-1507 motion is barred by the doctrine of res judicata. See Woods v. State , 52 Kan. App. 2d 958, Syl. ¶ 1, 379 P.3d 1134 (2016), rev. denied 306 Kan. 1332, --- P.3d ---- (2017).

Ponds argues that his K.S.A. 60-1507 motion, when read broadly, asserted an ineffective assistance of counsel claim that could only be resolved with an evidentiary hearing. But nowhere in the K.S.A. 60-1507 motion is there a claim or argument relating to ineffective assistance of counsel or the standards by which a court would address such a claim. There is simply no way to liberally construe Ponds' K.S.A. 60-1507 motion as raising an ineffective assistance of counsel claim.

Generally, claims of ineffective assistance of counsel will not be considered when raised for the first time on appeal. Trotter v. State , 288 Kan. 112, 127, 200 P.3d 1236 (2009). This rule comports with the general rule that issues not raised before the district court cannot be raised on appeal. State v. Kelly , 298 Kan. 965, 971, 318 P.3d 987 (2014). Ponds offers no reason why this issue should be considered for the first time on appeal. See Supreme Court Rule 6.02(a)(5) (2019 Kan. S. Ct. R. 35) ("If the issue was not raised below, there must be an explanation why the issue is properly before the court.").

Finally, Ponds argues that the district court violated Supreme Court Rule 183(j) by making insufficient findings of fact and conclusions of law. But Ponds failed to object in district court to the adequacy of the district court's findings. Without such an objection, this court must presume the district court found all the facts needed to support its legal conclusions. See Gilkey v. State , 31 Kan. App. 2d 77, 77-78, 60 P.3d 351 (2003). Here, although the district court's journal entry was brief, it explained the court's decision for denying relief, and the findings were adequate to allow for meaningful appellate review.

Affirmed.


author: Atcheson, J.:

text:
    Amiel C. GREEN, Appellant, v. GENERAL MOTORS CORP., Appellee.
    No. 119,044
    Court of Appeals of Kansas.
    Opinion filed February 8, 2019.
    Dennis L. Horner, of Boyd, Kenter, Thomas & Parrish, LLC, of Olathe, for appellant.
    Kristina Mulvany, of McAnany, Van Cleave & Phillips, P.A., of Kansas City, for appellee.
    Before Gardner, P.J., Atcheson and Powell, JJ.
   Atcheson, J.:

The Workers Compensation Board dismissed Amiel C. Green's claim against General Motors Corporation seeking benefits for an on-the-job injury. The Board found a lack of prosecution as provided in K.S.A. 2008 Supp. 44-523(f), despite Green's repeated requests for continuing treatment and temporary compensation. Green has appealed. The Board applied the wrong version of the statute. Under K.S.A. 2017 Supp. 44-523(f)(1), the correct version, lack of prosecution is determined differently and more favorably to Green. We, therefore, reverse and remand to the Board for further proceedings.

In short, K.S.A. 2008 Supp. 44-523(f) effectively created a categorical definition of lack of prosecution that covered Green's claim. The amended statute removes that unyielding-some would say procrustean-rule and affords injured workers a hearing to show why their claims should not be dismissed. On remand, the Board should see that Green gets a hearing.

Factual and Procedural History

Given the narrow issue at hand, we quickly sketch the relevant facts and procedural history. Green, an assembly line worker at General Motors, suffered repetitive-use injuries to both his hands and filed a claim for workers compensation benefits in early 2009. Green underwent multiple examinations and received various forms of treatment with less than optimal results. As part of the workers compensation claims process, Green requested more than a dozen preliminary hearings beginning in 2009 seeking treatment, temporary benefits, or both. He had four preliminary hearings between 2013 and 2017. But the case neither settled nor progressed to a final hearing.

In July 2017, General Motors filed a motion to dismiss Green's claim for lack of prosecution. Relying on K.S.A. 2008 Supp. 44-523(f), the administrative law judge granted the motion. Green appealed to the Board. In a split decision, the Board affirmed the administrative law judge. The majority applied K.S.A. 2008 Supp. 44-523(f) and held the statutory language required dismissal. A dissenting board member would have applied K.S.A. 2012 Supp. 44-523(f)(1) and would have rejected the automatic dismissal of Green's claim for lack of prosecution. Green has appealed the Board's decision, and that is what we now consider.

Standard of Review and Principles of Statutory Construction

We review decisions of the Board under the Kansas Judicial Review Act (KJRA), K.S.A. 77-601 et seq. There are no material facts in dispute, so we confront a question of law dependent upon the selection and construction of the governing version of K.S.A. 44-523. See State v. Murdock , 299 Kan. 312, 314, 323 P.3d 846 (2014) (interpretation of statute a question of law given unlimited review on appeal); Estate of Belden v. Brown County , 46 Kan. App. 2d 247, 258-59, 261 P.3d 943 (2011) (absent material factual disputes, issues typically present questions of law). Under the KJRA, we may reverse an administrative agency decision that "has erroneously interpreted or applied the law." K.S.A. 2017 Supp. 77-621(c)(4). Appellate courts owe no deference to the Board's statutory interpretation of the Workers Compensation Act. Fernandez v. McDonald's , 296 Kan. 472, 475, 292 P.3d 311 (2013).

In a recent case involving the Workers Compensation Act, we laid out guiding principles for statutory interpretation:

"In construing a comprehensive statutory scheme such as the Workers Compensation Act, an appellate court must, as a first priority, strive to honor the legislative intent and purpose. In re Marriage of Traster , 301 Kan. 88, 98, 339 P.3d 778 (2014). The court should look initially to the words of a statute to discern legislative intent. Bussman v. Safeco Ins. Co. of America , 298 Kan. 700, 725-26, 317 P.3d 70 (2014). If particular language is open to more than one reasonable interpretation, a court may consider the overall statutory purpose and favor a reading that comes to a 'consistent, harmonious, and sensible' result effectuating that purpose. In re Marriage of Traster , 301 Kan. at 98 [339 P.3d 778]. Judicial interpretation should avoid adding something to the statutory language or negating something already there. Casco v. Armour Swift-Eckrich , 283 Kan. 508, Syl. ¶ 6, 154 P.3d 494 (2007). A court, of course, may also deploy those analytical tools to debunk a suggested interpretation of a statute as improbable, particularly when the suggestion would undermine a legislative purpose. See State v. James , 301 Kan. 898, 903, 349 P.3d 457 (2015) (court should construe statute 'to avoid unreasonable or absurd results')." Travelers Cas. Insurance v. Karns , 56 Kan. App. 2d 388, 393, 431 P.3d 301 (2018).

Retroactivity: Determining the Applicable Version of K.S.A. 44-523

The threshold issue here is whether K.S.A. 2008 Supp. 44-523(f) or K.S.A. 2017 Supp. 44-523(f)(1) applies to Green's claim. In its brief, General Motors characterizes the two versions of the statute and the differences between them as fundamentally procedural, so the version in effect in 2017 when it moved to dismiss the claim should govern. We agree with that proposition, subject to a limited qualification immaterial to Green's claim. See Norris v. Kansas Employment Security Bd. of Review , 303 Kan. 834, 841-42, 367 P.3d 1252 (2016) (procedural statute applies to cases pending when it goes into effect). General Motors, however, submits Green's claim must be dismissed under either version of 44-523(f) and then focuses on K.S.A. 2008 Supp. 44-523(f), consistent with the Board's decision. We disagree with that proposition.

Each version of 44-523(f) provides an employer with a vehicle to request dismissal of a claim that has not progressed to one of several identified stages in the adjudicatory process within a fixed time. A dismissal for lack of prosecution has nothing to do with the underlying merits of the claim and turns on the alacrity (or lack thereof) with which it has proceeded through the administrative process. Each version of the statute also outlines the mechanisms, involving various combinations of motions and hearings, for raising and resolving lack of prosecution. We examine how the particular procedures operate later. The statute, thus, imposes a limitations period-not for bringing a claim but for substantially advancing the administrative adjudication of one. And the statute establishes methods for addressing dismissal for lack of prosecution. Those are hallmarks of a procedural statute that should be applied retroactively. See State v. Spencer Gifts , 304 Kan. 755, 769, 374 P.3d 680 (2016) (statute of limitations considered procedural); Norris , 303 Kan. at 841-42, 367 P.3d 1252 (procedural statute entails "machinery" or "mode" for adjudicating legal dispute rather than defining substantive rights or claims).

Given the purpose and operation of 44-523(f), we find the statute to be procedural rather than substantive with respect to claims, like Green's, filed after K.S.A. 2008 Supp. 44-523(f) went into effect and that remained pending when the amendments in K.S.A. 2017 Supp. 44-523(f)(1) became effective in 2011. Accordingly, K.S.A. 2017 Supp. 44-523(f)(1) governs Green's claim. In that respect, the Board erred.

Statutory Construction: Tracking Changes in K.S.A. 44-523

To explain why K.S.A. 2017 Supp. 44-523(f)(1) requires reversal of the Board's decision, we begin by looking at K.S.A. 2008 Supp. 44-523(f) and then contrasting its provisions with those of K.S.A. 2017 Supp. 44-523(f)(1). As a practical matter, we simply explain our disagreement with General Motors' suggestion that the two versions of the statute have the same impact on Green's claim.

We start with K.S.A. 2008 Supp. 44-523(f), the version the Board applied:

"Any claim that has not proceeded to final hearing, a settlement hearing, or an agreed award under the workers compensation act within five years from the date of filing an application for hearing pursuant to K.S.A. 44-534, and amendments thereto, shall be dismissed by the administrative law judge for lack of prosecution. The administrative law judge may grant an extension for good cause shown, which shall be conclusively presumed in the event that the claimant has not reached maximum medical improvement, provided such motion to extend is filed prior to the five year limitation provided for herein. This section shall not affect any future benefits which have been left open upon proper application by an award or settlement." K.S.A. 2008 Supp. 44-523(f).

The first sentence is particularly relevant here. It imposes a categorical rule of dismissal. An administrative law judge must dismiss a claim for lack of prosecution if there has been no regular hearing, settlement hearing, or agreed upon resolution within five years of claimant's initial filing for a hearing. Under K.S.A. 44-534, any party may file for a hearing if a claim for benefits cannot be resolved by agreement; the filing initiates the agency adjudicatory process with an assignment of the claim to an administrative law judge for further proceedings.

We see no basis for assuming the Legislature intended the statutory "shall" in K.S.A. 2008 Supp. 44-523(f) -commanding the administrative law judge to dismiss a claim-to be read other than in its customary way as compelling a mandatory act. See Gannon v. State , 298 Kan. 1107, 1141, 319 P.3d 1196 (2014). So K.S.A. 2008 Supp. 44-523(f) functionally defined "lack of prosecution" requiring dismissal as the failure of a claim to reach a regular or settlement hearing or to be resolved with an agreed award within five years of filing. Green's claim indisputably remained open; there never was a regular hearing, a settlement hearing, or an agreed award. The preliminary hearings Green sought and received are different and do not satisfy the statute. See K.S.A. 2017 Supp. 44-534a (scope of preliminary hearings).

The statutory ground requiring dismissal of a claim for lack of prosecution is clear and unyielding, save for a timely request for an extension that may or may not be granted. The procedure for seeking an extension is set out in the second sentence of K.S.A. 2008 Supp. 44-523(f). That limited exception to dismissal allows an administrative law judge to retain a claim for "good cause" if the injured worker makes a request within the five-year period. Green did not make a qualifying request.

In short, if K.S.A. 2008 Supp. 44-523(f) were to govern Green's claim, the administrative law judge and the Board correctly dismissed his claim. The Board majority bridled at the result it reached in this case and explained it "would rather treat actively prosecuted claims as an exception to the dismissal required by K.S.A. 2008 Supp. 44-523(f)."

As we have said, the Board should have applied K.S.A. 2017 Supp. 44-523(f)(1) because the statute is procedural and that version had been in effect for several years when General Motors sought to dismiss Green's claim. The Legislature substantially revamped the Workers Compensation Act in 2011, including amendments to K.S.A. 44-523. The amended version, K.S.A. 2017 Supp. 44-523(f)(1), provides:

"In any claim that has not proceeded to a regular hearing, a settlement hearing, or an agreed award under the workers compensation act within three years from the date of filing an application for hearing pursuant to K.S.A. 44-534, and amendments thereto, the employer shall be permitted to file with the division an application for dismissal based on lack of prosecution. The matter shall be set for hearing with notice to the claimant's attorney, if the claimant is represented, or to the claimant's last known address. The administrative law judge may grant an extension for good cause shown, which shall be conclusively presumed in the event that the claimant has not reached maximum medical improvement, provided such motion to extend is filed prior to the three year limitation provided for herein. If the claimant cannot establish good cause, the claim shall be dismissed with prejudice by the administrative law judge for lack of prosecution. Such dismissal shall be considered a final disposition at a full hearing on the claim for purposes of employer reimbursement from the fund pursuant to subsection (b) of K.S.A. 44-534a, and amendments thereto."

Again, the first sentence of the amended statute is paramount and effectively controls the immediate fate of Green's claim. The opening sentence provides that if a claim does not proceed to a regular hearing, a settlement hearing, or an agreed award within three years after the filing of a hearing application, the employer may request dismissal for lack of prosecution. After receiving the employer's request, the administrative law judge must notify the claimant and set the matter for a hearing on whether the claim has been prosecuted.

Under K.S.A. 2017 Supp. 44-523(f)(1), the delay in bringing a claim to one of the designated hearings or an agreed resolution simply affords the employer the option to ask for dismissal-triggering a hearing on whether there has been a lack of prosecution. That's markedly different from K.S.A. 2008 Supp. 44-523(f). As we have explained, under the earlier version of the statute, the delay mandated dismissal of the claim. Conversely, under K.S.A. 2017 Supp. 44-523(f)(1), the lapse of time without a hearing or agreed award no longer codifies or defines what constitutes "lack of prosecution." It merely marks the threshold for an employer to present an argument for dismissal based on a lack of prosecution.

The change eliminates the patent unfairness the Board perceived in dismissing a claim, such as Green's, where a final disposition appears to have been put off because of the nature of the injury rather than because of inattention on the claimant's part. We may presume the Legislature meant to reform the operation of K.S.A. 2008 Supp. 44-523(f) through the 2011 amendment by replacing mandatory dismissal with a hearing designed to assess the circumstances of a particular claim and its handling. See Brennan v. Kansas Insurance Guaranty Ass'n , 293 Kan. 446, 458, 264 P.3d 102 (2011) (courts typically presume Legislature intended statutory amendment to alter operation or effect of statute). On the whole, adjudicatory processes ought to prefer merits based resolutions to indiscriminate, if ruthlessly efficient, dispositions grounded in procedural rules-an objective advanced in K.S.A. 2017 Supp. 44-523(f)(1). See Fisher v. DeCarvalho , 298 Kan. 482, 500, 314 P.3d 214 (2013) ("litigants should not be unnecessarily penalized for the simple neglect of their attorney[s]"); Bazine State Bank v. Pawnee Prod. Serv., Inc. , 245 Kan. 490, 495, 781 P.2d 1077 (1989) (Although default may be necessary when a party's "inaction ... frustrates the orderly administration of justice," the courts should "resolve any doubt in favor of" a decision on the merits.); In re Estate of Moore , 53 Kan. App. 2d 667, 693, 390 P.3d 551 (Atcheson, J., concurring) ("Absolute rules do have a certain sheen emanating from their very absoluteness: ... the result requires no debate and brooks no deviation[;] ... [b]ut eventually some unanticipated set of facts will rear up to demonstrate the rule to be less than entirely fair in its unforgiving rigidity."), rev. granted 307 Kan. 987, --- P.3d ---- (2017).

The Workers Compensation Act does not formally define failure to prosecute or lack of prosecution. And K.S.A. 2017 Supp. 44-523(f)(1) removed the functional definition imposed through the mandatory rule for dismissal in K.S.A. 2008 Supp. 44-523(f). Courts and the administrative agency, therefore, should now look to the customary or usual meaning of the term for guidance. Sandifer v. United States Steel Corp. , 571 U.S. 220, 227, 134 S.Ct. 870, 187 L.Ed.2d 729 (2014) ;

Garetson Brothers v. American Warrior, Inc. , 51 Kan. App. 2d 370, 383, 347 P.3d 687 (2015). As a legal term, lack of prosecution entails a party's failure to pursue an action with due diligence and at least suggests indifference approaching abandonment of the cause. See Coutts v. Crider , 219 Kan. 692, 700, 549 P.2d 1019 (1976) (district court properly dismissed action by lawyer to collect unpaid fee from former client where parties exchanged interrogatories and nothing further happened in case for six years); Namelo v. Broyles , 33 Kan. App. 2d 349, 356-57, 103 P.3d 486 (2004) (district court properly dismissed case pending for six years for lack of prosecution when plaintiff had only responded to interrogatories after an order to compel and had failed to agree to deposition schedule). A leading commentator has described the term this way: "Dismissal for failure to prosecute ordinarily depends on whether, under the facts and circumstances of the particular case, the plaintiff is chargeable with want of due diligence in failing to proceed with reasonable promptness." 24 Am. Jur. 2d, Dismissal, Discontinuance, and Nonsuit § 65 (2018 ed.).

A dismissal for lack of prosecution under K.S.A. 2017 Supp. 44-523(f)(1) is with prejudice and, thus, operates as a bar to any recovery on the injured worker's claim. By way of comparison, under the Kansas Code of Civil Procedure, a district court may dismiss a civil action for failure to prosecute without a request so long as the plaintiff is given notice and an opportunity to be heard. The dismissal is, however, without prejudice to the action being refiled. K.S.A. 2017 Supp. 60-241(b)(2). If a defendant moves for dismissal, the district court may grant the motion with or without prejudice in its discretion. K.S.A. 2017 Supp. 60-241(b)(1). Dismissal with prejudice for lack of prosecution is typically considered a harsh result to be sparingly imposed. See McGinnis v. Steeleman , 199 So.3d 69, 72-73 (Ala. Civ. App. 2015) ; Hunter v. Gang , 377 P.3d 448, 455-56 (Nev. App. 2016) ; Cotter v. Dias , 130 A.3d 164, 169 (R.I. 2016) ; 24 Am. Jur. 2d, Dismissal § 63. Factors bearing on the determination typically include the length of the delay in moving the case forward; reasons for the delay; what efforts had been made to prosecute the claim; the party's personal responsibility, if any, for the delay; and prejudice to the adverse party beyond the mere delay itself.

Landise v. Mauro , 141 A.3d 1067, 1077 (D.C. App. 2016) ; Strong v. Intermountain Anesthesia, P.A. , 160 Idaho 27, 31, 368 P.3d 647 (2016) ; 24 Am. Jur. 2d, Dismissal §§ 64 and 65 ; cf. Namelo , 33 Kan. App. 2d at 357, 103 P.3d 486 (court broadly considers "the circumstances presented in this case" in affirming dismissal for failure to prosecute).

We offer several other observations about K.S.A. 2017 Supp. 44-523(f)(1) before turning briefly to remedy.

First, K.S.A. 2017 Supp. 44-523(f)(1) retains a claimant's right to file a motion to avert dismissal for lack of prosecution by demonstrating good cause for the failure to progress to hearing or to obtain an agreed award. Under K.S.A. 2017 Supp. 44-523(f)(1), the claimant must request an extension of time within the three-year period and, thus, presumably before the employer files a motion to dismiss. In certain circumstances, we suppose a claimant might perceive some benefit in preemptively joining the issue of potential lack of prosecution by seeking an extension rather than awaiting an employer's motion to dismiss. We also suppose those circumstances may be comparatively rare.

Second, K.S.A. 2017 Supp. 44-523(f)(1) shortens the time period for engaging the issue of lack of prosecution from five years to three years. The change makes no difference in this case, since Green didn't act within either period. Although K.S.A. 2017 Supp. 44-523(f)(1) is a procedural statute, the longer period may constitute a vested right for injured workers with claims pending in 2011 when the time was shortened. See White v. State , 308 Kan. 491, 498-99, 421 P.3d 718 (2018) (statute of limitations deemed procedural, but change that "eradicates" vested right in time period not applied retroactively). This appeal does not involve that aspect of the statute.[ ]

Finally, we also mention Knoll v. Olathe School District No. 233 , 54 Kan. App. 2d 335, 341-42, 398 P.3d 223, rev. granted 306 Kan. 1319, --- P.3d ---- (2017). In that case, the panel concluded the three-year time limit in K.S.A. 2016 Supp. 44-523(f)(1) could be applied retroactively. The opinion focused on the retroactivity issue and, without any detailed discussion, also concluded that K.S.A. 2016 Supp. 44-523(f)(1) operated in the same way as K.S.A. 2009 Supp. 44-523(f) to require dismissal of claims for lack of prosecution. Having closely considered the procedural processes for dismissing claims in both versions of the statute, we have come to a different conclusion on that point. We are free to do so. One panel of this court is not bound to follow an earlier published opinion of another panel. See State v. Urban , 291 Kan. 214, 223, 239 P.3d 837 (2010) ; Osterhaus v. Toth , 39 Kan. App. 2d 999, 1008, 187 P.3d 126 (2008), aff'd on other grounds 291 Kan. 759, 249 P.3d 888 (2011). In addition, the Kansas Supreme Court's decision to grant review in Knoll vacates the panel's opinion, depriving it of precedential authority. Supreme Court Rule 8.03(k)(2) (2019 S. Kan. Ct. R. 60) (Upon a grant of review, a Court of Appeals' opinion "has no force or effect.").

Conclusion and Remedy

To sum up, the Board applied the wrong version of 44-523(f) in affirming the dismissal of Green's claim. Under K.S.A. 2017 Supp. 44-523(f)(1), the correct version, General Motors is entitled to a hearing to determine if Green has failed to advance his claim consistent with the common understanding of what constitutes a lack of prosecution warranting dismissal with prejudice. The parties have not had the opportunity to offer evidence or legal argument bearing on the issue. On remand, the Board should afford them that opportunity in an appropriate forum.

Reversed and remanded to the Board with directions.

      Before the Legislature enacted K.S.A. 2006 Supp. 44-523(f) in 2006, the Workers Compensation Act contained no express authority permitting dismissal of a claim for lack of prosecution. We assume the new statutory provision could not have been applied to claims for injuries occurring before 2006 on the theory it impinged on an injured worker's vested right not to be denied benefits for that reason. See Welty v. U.S.D. No. 259 , 48 Kan. App. 2d 797, Syl. ¶ 6, 302 P.3d 1080 (2012) (declining to give retroactive application to K.S.A. 2006 Supp. 44-523 [f] to bar claims arising from injuries predating statute). More than a decade later, we are inclined to believe all of those claims have been resolved, rendering that particular question purely an academic one.


text:
    STATE of Kansas, Appellee, v. Adrian M. HALL, Appellant.
    No. 118,915
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed.


text:
    Matthew Robert STUTSMAN, Appellant, v. KANSAS DEPARTMENT OF REVENUE, Appellee.
    No. 119,528
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Reversed.


text:
    ROYAL GARDENS APARTMENTS, Appellee, v. Andrea NUNEZ, Appellant.
    No. 119,512
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirm.


text:
    STATE of Kansas, Appellee, v. John T. BAKER, Appellant.
    No. 118,794
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Reversed. Remanded.


text:
    STATE of Kansas, Appellee, v. Gary Michael GILBERT, Appellant.
    No. 118,491
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Catriece Lanae MONTGOMERY, Appellant.
    No. 118,205
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed in part. Vacated in part. Remanded in part with directions.


text:
    Thomas E. BROWN Jr., Appellant, v. Marty SAUERS, Warden, Appellee.
    No. 119,706
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed in part. Dismissed in part.


text:
    STATE of Kansas, Appellee, v. James H. WOOLDRIDGE Jr., Appellant.
    No. 117,284
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019
    Reversed. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Kendall Wayne GOLSTON, Appellant.
    No. 118,471
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Craig J. SAMBER, Appellant.
    119,128 119,129
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Dismissed in part, vacated in part,. Remanded.


text:
    STATE of Kansas, Appellee, v. Tohnna Jonene THOMPSON, Appellant.
    No. 118,913
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed in part. Reversed in part. Remanded.


text:
    STATE of Kansas, Appellee, v. Trayvond Percy WALKER III, Appellant.
    No. 118,703
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirm.


text:
    STATE of Kansas, Appellee, v. Remona J. SHANHOLTS, Appellant.
    Nos. 118 911 118,912
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed in part. Reversed in part. Remanded with directions.


text:
    STATE of Kansas, Appellee, v. Alphonso MONTGOMERY, Appellant.
    No. 118,558
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed.


text:
    STORMONT-VAIL HEALTHCARE, INC., Appellant, v. The BOARD OF COUNTY COMMISSIONERS FOR JACKSON COUNTY, Kansas, Appellee, v. Dustin Chism, Third-party Defendant.
    No. 118,428
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Anthony Tramane MILLER, Appellant.
    No. 118,174
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed in part. Vacated in part. Remanded with directions.


text:
    In the INTEREST OF L.B., a Minor Child.
    No. 120,361
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Affirmed.


text:
    CAYWOOD, LLC Appellant, v. CITY OF WICHITA, Kansas, Appellee.
    No. 117,662
    Court of Appeals of Kansas.
    Opinion on remand filed March 29, 2019.
    Reversed in part. Dismissed in part. Remanded for further proceedings.


text:
    Janet S. KAELTER, Appellee, v. Steven L. SOKOL, Appellant, and In re Parentage of Benjamin Sarbey Sokol, A Minor Child, by His Mother Janet S. Kaelter, v. Steven L. Sokol.
    No. 119,333
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Dismissed.


text:
    STATE of Kansas, Appellee, v. Birgilio C. CASTRO-MONCADA, Appellant.
    No. 117,993
    Court of Appeals of Kansas.
    Opinion filed March 22, 2019.
    Affirmed in part. Vacated in part.


text:
    In the INTEREST OF L.C., a Minor Child.
    No. 119,835
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Dismiss.


text:
    STATE of Kansas, Appellee, v. Teveere BATES, Appellant.
    No. 117,419
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Affirmed in part. Dismissed in part.


text:
    STATE of Kansas, Appellee, v. Raymond L. VOTH, Appellant.
    No. 119,199
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019
    Affirmed.


text:
    STATE of Kansas, Appellee, v. Christopher Lee HERRING, Appellant.
    No. 118,648
    Court of Appeals of Kansas.
    Opinion filed March 29, 2019.
    Affirmed.


text:
    LENOIR v. GUYER
    OP 18-0718
    Supreme Court of Montana.
    January 8, 2019
    Decision without opinion or without extended opinion Denied.


text:
    ERDLEY v. GUYER
    OP 18-0716
    Supreme Court of Montana.
    January 8, 2019
    Decision without opinion or without extended opinion Denied.


text:
    GRAY v. GUYER
    OP 18-0715
    Supreme Court of Montana.
    January 8, 2019
    Decision without opinion or without extended opinion Denied.


text:
    KAARMA v. 4TH JUDICIAL DIST.
    OP 18-0714
    Supreme Court of Montana.
    January 8, 2019
    Decision without opinion or without extended opinion Denied.


text:
    SHEEHAN v. FRAZIER
    OP 18-0680
    Supreme Court of Montana.
    January 15, 2019
    Decision without opinion or without extended opinion Denied.


text:
    MADSEN v. GUYER
    OP 18-0725
    Supreme Court of Montana.
    January 15, 2019
    Decision without opinion or without extended opinion Denied.


text:
    WOODSON v. GUYER
    OP 18-0724
    Supreme Court of Montana.
    January 15, 2019
    Decision without opinion or without extended opinion Denied.


text:
    HUSSAR v. GREEN
    OP 18-0713
    Supreme Court of Montana.
    January 8, 2019
    Decision without opinion or without extended opinion Denied.


text:
    COOKSEY v. STATE
    OP 18-0701
    Supreme Court of Montana.
    January 29, 2019
    Decision without opinion or without extended opinion Denied.


text:
    LOWRY v. GUYER
    OP 18-0610
    Supreme Court of Montana.
    January 22, 2019
    Decision without opinion or without extended opinion Denied.


text:
    REEVIS v. STATE
    OP 19-0016
    Supreme Court of Montana.
    January 22, 2019
    Decision without opinion or without extended opinion Denied.


text:
    HOLM v. GUYER
    OP 18-0723
    Supreme Court of Montana.
    January 15, 2019
    Decision without opinion or without extended opinion Denied.


text:
    DAHL v. 1ST JUDICIAL DISTRICT
    OP 18-0705
    Supreme Court of Montana.
    February 5, 2019
    Decision without opinion or without extended opinion Denied.


text:
    BROWN v. GUYER
    OP 19-0046
    Supreme Court of Montana.
    February 5, 2019
    Decision without opinion or without extended opinion Denied.


text:
    MADSEN v. GUYER
    OP 19-0054
    Supreme Court of Montana.
    February 5, 2019
    Decision without opinion or without extended opinion Denied.


text:
    MADSEN v. GUYER
    OP 19-0060
    Supreme Court of Montana.
    February 5, 2019
    Decision without opinion or without extended opinion Denied.


text:
    ENGLERT v. GUYER
    OP 19-0041
    Supreme Court of Montana.
    February 12, 2019
    Decision without opinion or without extended opinion Denied.


text:
    DODSON v. GUYER
    OP 19-0056
    Supreme Court of Montana.
    February 12, 2019
    Decision without opinion or without extended opinion Denied.


text:
    TWOTEETH v. GUYER
    OP 19-0055
    Supreme Court of Montana.
    February 12, 2019
    Decision without opinion or without extended opinion Denied.


text:
    WILLIAMS v. GUYER
    OP 0059
    Supreme Court of Montana.
    February 12, 2019
    Decision without opinion or without extended opinion Denied.


text:
    ASENCIO v. HALLIGAN
    OP 19-0037
    Supreme Court of Montana.
    February 19, 2019
    Decision without opinion or without extended opinion Denied.


text:
    DESROSIER, et al. v. 9TH JUD. DIST.
    OP 18-0721
    Supreme Court of Montana.
    February 19, 2019
    Decision without opinion or without extended opinion Granted.


text:
    MARYLAND CASUALTY CO. v. ASBESTOS CLAIMS COURT
    OP 19-0051
    Supreme Court of Montana.
    February 19, 2019
    Decision without opinion or without extended opinion Stayed.


text:
    BLACKER v. O'FALLON
    OP 18-0530
    Supreme Court of Montana.
    February 12, 2019
    Decision without opinion or without extended opinion Denied in Part and Response Ordered.


text:
    HOWELL v. GUYER
    OP 19-0091
    Supreme Court of Montana.
    February 26, 2019
    Decision without opinion or without extended opinion Denied.


text:
    RING v. GUYER
    OP 19-0095
    Supreme Court of Montana.
    February 26, 2019
    Decision without opinion or without extended opinion Denied.


text:
    KIRN v. BODINE
    OP 19-0106
    Supreme Court of Montana.
    February 26, 2019
    Decision without opinion or without extended opinion Denied.


text:
    MADSEN v. GUYER
    OP 19-0083
    Supreme Court of Montana.
    February 19, 2019
    Decision without opinion or without ex tended opinion Denied.


text:
    SMALL v. 4TH JUDICIAL DISTRICT
    OP 19-0061
    Supreme Court of Montana.
    March 12, 2019
    Decision without opinion or without extended opinion Denied.


text:
    SMITH v. GUYER
    OP 18-0674
    Supreme Court of Montana.
    March 12, 2019
    Decision without opinion or without extended opinion Denied.


text:
    BNSF v. 8TH JUDICIAL DISTRICT
    OP 18-0693
    Supreme Court of Montana.
    March 12, 2019
    Decision without opinion or without extended opinion Denied.


text:
    JACKSON v. 11TH JUDICIAL DISTRICT
    OP 19-0116
    Supreme Court of Montana.
    March 5, 2019
    Decision without opinion or without extended opinion Denied.


text:
    WRIGHT v. GUYER
    OP 19-0147
    Supreme Court of Montana.
    March 26, 2019
    Decision without opinion or without extended opinion Denied.


text:
    BLACKER v. O'FALLON
    OP 18-0530
    Supreme Court of Montana.
    March 26, 2019
    Decision without opinion or without extended opinion Denied.


text:
    WOOD v. GUYER
    OP 19-0136
    Supreme Court of Montana.
    March 19, 2019
    Decision without opinion or without extended opinion Denied.


text:
    HUTT v. ASBESTOS CLAIMS COURT
    OP 19-0146
    Supreme Court of Montana.
    March 19, 2019
    Decision without opinion or without extended opinion Denied.


text:
    FREDERICKS v. 13TH JUDICIAL DIST.
    OP 19-0103
    Supreme Court of Montana.
    March 26, 2019
    Decision without opinion or without extended opinion Denied.


text:
    MARTIN v. MICHAEL
    OP 19-0171
    Supreme Court of Montana.
    March 26, 2019
    Decision without opinion or without extended opinion Denied.