Opinion
No. 108,869.
2013-08-16
BOARD OF COUNTY COMMISSIONERS OF BUTLER COUNTY, Kansas (Butler County Electronic Monitoring Program), Appellant, v. Brion E. LITTLE, Appellee.
Appeal from Butler District Court; Janette L. Satterfield, Judge. Norman G. Manley, of Davis, Manley & Lane L.L.C., of El Dorado, for appellant. Brion E. Little, appellee pro se.
Appeal from Butler District Court; Janette L. Satterfield, Judge.
Norman G. Manley, of Davis, Manley & Lane L.L.C., of El Dorado, for appellant. Brion E. Little, appellee pro se.
Before MALONE, C.J., ATCHESON, J., and LARSON, S.J.
MEMORANDUM OPINION
PER CURIAM.
The Board of County Commissioners of Butler County, Kansas, as administrator of the Butler County Electronic Monitoring Program (EMP), appeals the district court's decision in favor of Brion E. Little on EMP's civil contractual claim against Little for unpaid costs related to an alcohol monitoring device he wore as a condition of pretrial release in a criminal case in Butler County. EMP claims that the district court erred in finding that EMP's civil contractual recovery was limited to the amount ordered as part of Little's criminal sentence. Under the facts herein, we affirm the district court's judgment.
Facts
On August 22, 2011, Little entered into a written agreement with EMP to be fitted with an alcohol monitoring device. EMP is a department within Butler County that provides juvenile and adult pretrial monitoring services. The alcohol monitoring device was required as a condition of pretrial release in a criminal case that had been filed against Little in Butler County.
The written agreement between Little and EMP consisted of two separate documents. A document titled “Electronic Monitoring Program, 13th Judicial District,” signed by Little on August 22, 2011, stated that Little would pay a $40 connection fee and $10 per day for alcohol monitoring services. Another document titled “SCRAMx [Secure Continuous Remote Alcohol Monitoring] Program Participant Agreement,” signed by Little on November 16, 2011, stated in part: “I understand that I may be required to pay the daily cost of my SCRAMx monitoring. If so ordered, I agree to pay the following cost per day on a schedule set forth in a separate payment agreement....” (Emphasis added.)
On December 5, 2011, Little pled guilty to several misdemeanor offenses. The district court placed Little on probation for 12 months with an underlying jail sentence of 14 months. The district court also ordered Little to pay fines in the amount of $1,050 and court costs and fees in the amount of $681. In addition, the district court ordered Little to pay for the alcohol monitoring device in the amount of $15 per week for each week he was ordered to wear the monitor. All fines, costs, and fees associated with the criminal case were ordered to be paid as a condition of Little's probation.
On January 12, 2012, EMP filed a civil action against Little in Butler County Small Claims Court, alleging that Little had contractually agreed to pay for alcohol monitoring services and that he owed $751.50 in unpaid costs. After a hearing, the magistrate judge entered judgment in favor of EMP against Little for $751.50 plus costs. Little timely appealed to the district court.
The district court held a hearing on May 23, 2012. EMP appeared by Juan Montemayor, a representative of the program, and Little appeared pro se. Both parties argued their positions to the court and introduced exhibits. EMP argued that Little was contractually liable for the full costs related to the alcohol monitoring device notwithstanding the sentencing court's order in his criminal case limiting the costs to $15 per week. EMP noted that at a rate of $15 per week, it would not be able to recoup the full costs of providing an alcohol monitoring device to Little.
Little argued that under K.S.A.2011 Supp. 22–2802, the statute that governs the conditions of pretrial release, he could not be ordered to pay any more than $15 per week in supervision costs as a condition of his pretrial release in his criminal case. He acknowledged that the statute permits a sentencing court to impose the full supervision costs as a condition of sentencing, but he noted that in his case the sentencing court only ordered him to pay $15 per week. Little further pointed to the language in the SCRAMx Program Participant Agreement that indicated he would only be required to pay costs related to the alcohol monitoring device if ordered by a court. As of the date of the hearing before the district court, Little had paid EMP a total of $206.35. According to Little's calculations based on the $15–per–week amount ordered by the sentencing court in his criminal case, he had fulfilled his obligation under the contract to EMP.
On August 29, 2012, the district court filed a written decision in favor of Little. Relying on State v. Gardner, 45 Kan.App.2d 212, 244 P.3d 1292,rev. granted 292 Kan. –––– (2011), rev. dismissed as improvidently granted 295 Kan. –––– (2012), the district court found that K.S.A.2011 Supp. 22–2802(15) sets a $15 per week limit on the pretrial supervision costs which can be assessed against a criminal defendant. The district court reasoned that this statutory cap was intended to reflect the public policy and legislative intent announced in K.S.A. 22–2801 that all persons regardless of their financial status should not be needlessly detained pending their court appearance when the detention serves neither the ends of justice nor the public interest. The district court found that the sentencing court in Little's criminal case was not obligated to order Little to pay the costs related to the alcohol monitoring device, but since the sentencing court did order such costs, it was limited by the $15 per week statutory cap set forth in K.S.A.2011 Supp. 22–2802(15). The district court determined that once the costs were ordered, they became a civil judgment against Little and the district court was “estopped from increasing the amount owed” in a separate civil action filed by EMP.
In the alternative, the district court referenced the language contained in the SCRAMx Program Participant Agreement suggesting that Little's obligation to pay the costs was subject to a court order. The district court found that Little could have been led to believe that the sentencing court's order for him to pay $15 per week for the alcohol monitoring device constituted the maximum amount he owed under his agreement with EMP. Specifically, the district court concluded its ruling as follows:
“Because the written contract allowed for confirmation or indicated confirmation or affirmation by a court, this Court believes that Mr. Little could have been led to believe or relied upon the order of Judge Ricke as constituting the review by the court and was, therefore, the maximum amount that he could be ordered to pay.
“My ruling is limited to the facts of this case only. Given payment by the defendant for the amount ordered by Judge Ricke, it is full satisfaction of the judgment.
“Therefore, the Court finds that the defendant is relieved of any further obligation or payment to the plaintiff.”
EMP filed a motion for reconsideration, which the district court denied. EMP timely appealed the district court's judgment.
Analysis
On appeal, EMP argues that the district court erred in finding that its civil contractual recovery was limited to the amount ordered as part of Little's criminal sentence. EMP argues that the district court erred in applying K.S.A.2011 Supp. 22–2802, a statute governing the conditions of pretrial release in criminal cases, to limit the amount it could recover from Little on its civil contractual claim. EMP also argues that the district court improperly relied on this court's decision in Gardner in order to find that K.S.A.2011 Supp. 22–2802 sets a $15 per week limit on the pretrial supervision costs that can be assessed against a criminal defendant.
Little argues that under K.S.A.2011 Supp. 22–2802, he can be ordered to pay pretrial supervision costs in excess of $15 per week only if the criminal sentencing court orders the full costs to be paid as a condition of sentencing. Little also points to the language in the SCRAMx Program Participant Agreement indicating that his obligation to pay the costs was subject to a court order. Because the sentencing court only ordered him to pay $15 per week for his alcohol monitoring device, Little asserts that EMP cannot recover a greater amount in its civil contractual claim.
Little also summarily claims that his agreement with EMP is unenforceable because the agreement was “the product of coercion rather than a voluntary act.” But Little makes no argument and cites no authority to support this claim. A point raised incidentally in a brief and not argued therein or supported with pertinent authority is deemed abandoned. Manhattan Ice & Cold Storage v. City of Manhattan, 294 Kan. 60, 71, 274 P.3d 609 (2012). Thus, we will not address Little's incidental claim that the agreement was a product of coercion, and, for the purpose of;his appeal, we will assume that the parties entered into a valid contract for EMP to provide the alcohol monitoring device to Little.
The sole issue raised by EMP on appeal is whether the district court erred in finding that EMP's civil contractual recovery for costs related to the alcohol monitoring device was limited to the amount ordered as part of Little's criminal sentence. Resolution of this issue requires this court to interpret K.S.A.2011 Supp. 22–2802. Interpretation of a statute is a question of law over which an appellate court has unlimited review. Unruh v. Purina Mills, 289 Kan. 1185, 1193, 221 P.3d 1130 (2009). To the extent that this court must also interpret the legal effect of the written agreements between Little and EMP, this also presents a question of law over which an appellate court has unlimited review. See Osterhaus v. Toth, 291 Kan. 759, 768, 249 P.3d 888 (2011).
The district court ruled in favor of Little and against EMP, in part, based on this court's prior decision in Gardner. In Gardner, a criminal case, this court interpreted a previous version of K.S.A. 22–2802. There, the criminal defendant was required to wear an alcohol monitoring device as a condition of his pretrial release. At sentencing, the district court placed the defendant on probation. As a condition of probation, the district court ordered the defendant to pay $121 for the full cost of his alcohol monitoring device. The defendant objected, arguing that K.S .A.2009 Supp. 22–2802(15) capped the amount of supervision costs he could be ordered to pay at $15 per week. Because he had been monitored for 4 weeks, the defendant argued that he could be ordered to pay no more than $60 in supervision costs. Gardner, 45 Kan.App.2d at 212–14.
On appeal, this court analyzed K.S.A.2009 Supp. 22–2802 which stated in pertinent part:
“(1) Any person charged with a crime shall, at the person's first appearance before a magistrate, be ordered released pending preliminary examination or trial upon the execution of an appearance bond in an amount specified by the magistrate and sufficient to assure the appearance of such person before the magistrate when ordered and to assure the public safety.... The magistrate may impose such of the following additional conditions of release as will reasonably assure the appearance of the person for preliminary examination or trial:
....
(e) place the person under the supervision of a court services officer responsible for monitoring the person's compliance with any conditions of release ordered by the magistrate.
....
“(15) The magistrate may order the person to pay for any costs associated with the supervision of the conditions of release of the appearance bond in an amount not to exceed $15 per week of such supervision.” (Emphasis added.)
The Gardner court reasoned that when the district court ordered the defendant to pay the costs related to the alcohol monitoring device, it was ordering him to pay costs ‘ “associated with the supervision of the conditions of release,” which plainly was subject to a $15 per week limit under K.S.A.2009 Supp. 22–2802(15). 45 Kan.App.2d at 214–15. The Gardner court determined that this specific statute controlled over the more general statute at K.S.A. 21–4610 governing the district court's authority to impose probation conditions. Thus, the Gardner court concluded that the district court had no discretion to order the defendant to pay pretrial supervision costs in excess of $15 per week as a condition of his probation. 45 Kan.App.2d at 215.
In direct response to Gardner, House Bill 2118 was introduced in the Kansas Legislature. Proponents of House Bill 2118 stated that a legislative amendment was necessary to clarify that the $15 per week limit on pretrial supervision costs set forth in K.S.A.2009 Supp. 22–2802 pertained only to the direct cost of court supervision personnel and that criminal defendants were responsible for all additional costs related to the conditions of pretrial release. See Minutes of the House Corrections and Juvenile Justice Committee, February 3, 2011, attachments 1, 2, 4; Minutes of the Senate Judiciary Committee, March 9, 2011, attachments 2, 3.
The amendments approved by the Kansas Legislature in House Bill 2118 became effective July 1, 2011. See L.2011, ch. 100, sec. 7. As a result of the amendments, K.S.A.2011 Supp. 22–2802 reads in relevant part:
“(1).... The magistrate may impose such of the following additional conditions of release as will reasonably assure the appearance of the person for preliminary examination or trial:
....
(e) place the person under the supervision of a court services officer responsible for monitoring the person's compliance with any conditions of release ordered by the magistrate. The magistrate may order the person to pay for any costs associated with the supervision provided by the court services department in an amount not to exceed $15 per week of such supervision. The magistrate may also order the person to pay for all other costs associated with the supervision and conditions for compliance in addition to the $15 per week.
....
“(15) The magistrate may order the person to pay for any costs associated with the supervision of the conditions of release of the appearance bond in an amount not to exceed $15 per week of such supervision. As a condition of sentencing under K.S.A.2011 Supp. 21–6604, and amendments thereto, the court may impose the full amount of any such costs in addition to the $15 per week, including, but not limited to, costs for treatment and evaluation under subsection (2).” (Emphasis added.)
The most fundamental rule of statutory construction is that the intent of the legislature governs if that intent can be ascertained. Bergstrom v. Spears Manufacturing Co., 289 Kan. 605, 607, 214 P .3d 676 (2009). Under K.S.A.2011 Supp. 22–2802(1)(e), the magistrate may order a criminal defendant to pay for the costs “associated with the supervision provided by the court services department” in an amount not to exceed $15 per week of such supervision. But there is no statutory cap on the amount the magistrate may order the defendant to pay “for all other costs” associated with the conditions of pretrial release, including costs related to an alcohol monitoring device. See K.S.A.2011 Supp. 22–2802(1)(e). Furthermore, if the criminal defendant is later convicted, the court may impose as a condition of sentencing the full amount of any costs related to the defendant's pretrial release in addition to $15 per week. K.S.A.2011 Supp. 22–2802(15); see also K.S.A.2011 Supp. 21–6604(a)(12).
Returning to this case, it appears from reviewing the district court's written decision, which refers to a $15 per week maximum charge under K.S.A. 22–2802, that the district court was unaware of the 2011 amendments to the statute. Thus, the district court erroneously applied the statute in finding a $15 per week limit in pretrial supervision costs that can be assessed against a criminal defendant. Likewise, the district court erred in relying on this court's decision in Gardner which interpreted a previous version of K.S.A. 22–2802.
Moreover, as EMP points out, the fact that the court ordered Little to pay pretrial supervision costs in the criminal case does not preclude EMP from seeking a civil remedy for any deficiency between the court-ordered costs and the amount allegedly due under the contract. As a general rule, the restitution order in a criminal case does not bar a victim's subsequent civil remedy or recovery against the defendant, but the amount of any restitution paid is set off against any civil recovery. State v. Applegate, 266 Kan. 1072, 1074, 976 P.2d 936 (1999). We find that this same rule should be applied to a judgment for costs. Thus, even if the court-ordered costs became a civil judgment against Little, the district court erred in finding that it was estopped from increasing the amount owed in a separate civil judgment.
But the district court also ruled in favor of Little based on the language in the written agreement between the parties. In its written decision, the district court referred to the language of the SCRAMx Program Participant Agreement suggesting that Little's obligation to pay the costs was subject to a court order. The district court found that based upon the contract language. Little could have been led to believe that the sentencing court's order for him to pay $15 per week for the alcohol monitoring device constituted the maximum amount he owed under his agreement with EMP. On appeal, BMP fails to address the district court's alternative reason for denying the claim.
We interpret the district court's written decision as a finding by the court that the contract between EMP and Little was ambiguous, even though the district court did not expressly use this term. Ambiguity exists if the contract contains provisions or language of doubtful or conflicting meaning. Liggatt v. Employers Mut. Casualty Co., 273 Kan. 915, 921, 46 P.3d 1120 (2002). If the meaning is ambiguous, the contract must be construed against the drafter of the instrument. Metropolitan Life Ins. Co. v. Strnad, 255 Kan. 657, 662, 876 P.2d 1362 (1994). Whether a written instrument is ambiguous is a matter of law subject to de novo review. Liggatt, 273 Kan. at 921.
Here, the agreement between Little and EMP consisted of two separate documents. A document titled “Electronic Monitoring Program, 13th Judicial District” stated that Little would pay a $40 connection fee and $10 per day for alcohol monitoring services. But another document titled “SCRAMx Program Participant Agreement” stated in part: “I understand that I may be required to pay the daily cost of my SCRAMx monitoring. If so ordered, I agree to pay the following cost per day on a schedule set forth in a separate payment agreement....” (Emphasis added.) Reading these conflicting provisions together creates an ambiguity as to the amount Little was obligated to pay for the alcohol monitoring device. As the district court found, Little could have been led to believe that he was obligated to pay for the alcohol monitoring services only if ordered by the court. Because the sentencing court only ordered him to pay $15 per week, Little reasonably could have concluded that $15 per week was the maximum amount he owed under his agreement with EMP. Because ambiguity in the contract is construed against the drafter of the instrument, in this case EMP, the district court did not err in concluding that Little had no further obligation to EMP under the contract.
In summary, the district court erred in finding that K.S.A.2011 Supp. 22–2802 provides a cap of $15 per week on all costs related to the conditions of pretrial release that a court may order a criminal defendant to pay. The district court also erred in finding that it was estopped from increasing the amount Little owed in the civil judgment based upon the court-ordered costs in the criminal case. But here the written agreement between EMP and Little was ambiguous as to the amount that Little was obligated to pay for the alcohol monitoring device. The ambiguity must be construed against EMP as the drafter of the instrument. Little reasonably could have concluded that $15 per week as ordered by the sentencing court was the maximum amount he owed under the agreement. Thus, under the facts of this case, we conclude that the district court did not err in limiting EMP's civil contractual recovery to the amount ordered as part of Little's criminal sentence.
Affirmed. ATCHESON, J., concurring:
I concur in the result affirming the judgment in favor of Defendant Brion E. Little.