Hawkinson v. Bennett
| Decision Date | 10 July 1998 |
| Docket Number | No. 77912,77912 |
| Parties | Bruce R. HAWKINSON, d/b/a Communications World of Kansas City/Lawrence/Topeka, Appellee, v. Robert E. BENNETT and Linda K. Bennett, Appellants. |
| Court | Kansas Supreme Court |
Syllabus by the Court
1. It is a general rule that attorney fees and expenses of litigation, other than court costs, are not recoverable as an item of compensatory damage, in the same or subsequent action, and are not chargeable as costs against the defeated party, in the absence of a clear and specific statute authorizing such recovery.
2. However, an exception to the rule set out in Syl. p 1 has been recognized in Kansas where the plaintiff has been forced to litigate against a third party because of some tortious conduct of the defendant. The recognized exception is stated as follows: If one's property is taken, injured or put in jeopardy by another's neglect of duty imposed by contract, or by wrongful act, any necessary expense incurred for its recovery, repair, or protection is an element of the injury. It is often the legal duty of the injured party to incur such expense to prevent or limit the damages, and if it is judicious and made in good faith, it is recoverable.
3. It is the duty of the trial court to properly instruct the jury upon a party's theory of the case. Errors regarding jury instructions will not demand reversal unless they result in prejudice to the appealing party. Instructions in any particular action are to be considered together and read as a whole, and where they fairly instruct the jury on the law governing the case, error in an isolated instruction may be disregarded as harmless. If the instructions are substantially correct, and the jury could not reasonably be misled by them, the instructions will be approved on appeal.
4. The term "fiduciary relationship" refers to any relationship of blood, business, friendship, or association in which one of the parties places special trust and confidence in the other. It exists in cases where there has been a special confidence placed in one who, in equity and good conscience, is bound to act in good faith and with due regard to the interest of the one placing the confidence. A fiduciary has the duty to act in good faith and with due regard to the interests of the party placing confidence in the fiduciary.
5. No party may assign as error the giving or failure to give an instruction unless he or she objects thereto before the jury retires to consider its verdict stating distinctly the matter to which he or she objects and the grounds of his or her objection unless the instruction is clearly erroneous. Opportunity shall be given to make the objections out of the hearing of the jury. K.S.A. 60-251(b). An instruction is clearly erroneous when the reviewing court reaches a firm conviction that if the trial error had not occurred there is a real possibility that the jury would have returned a different verdict.
6. If a verdict is attacked on the grounds that it is contrary to the evidence, it is not the function of this court on appeal to weigh the evidence or to pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the successful party, will support the verdict, this court will not intervene.
7. Under Kansas law, collateral estoppel may be invoked where the following is shown: (1) A prior judgment on the merits has determined the rights and liabilities of the parties on the issue based upon ultimate facts as disclosed by the pleadings and judgment, (2) the parties are the same or in privity, and (3) the issue litigated has been determined and necessary to support the judgment.
8. Whether a witness, expert or layman, is qualified to testify as to his or her opinion is to be determined by the trial court in the exercise of its discretion. That discretion is not subject to review except for abuse.
9. Loss of profits to an established business occasioned by the wrongful act of another is compensable and may be awarded in the amount proved by the evidence. Such loss of profits may be awarded as damages when they are proved with reasonable certainty and may reasonably be considered to have been within the contemplation of the parties. Absolute certainty in proving loss of future profits is not required. What is required is that the jury be guided by some rational standard.
10. A person not a party to an express contract may bring an action on the contract if the parties to the agreement intended to benefit the nonparty, provided that the benefit claimed is a direct and not merely an incidental benefit of the contract. While the intent to benefit the nonparty need not be expressly recited in the contract, the intent must be apparent from the terms of the agreement, the surrounding circumstances, or both.
11. Allegations of judicial misconduct during trial must be decided on the particular facts and circumstances surrounding such alleged misconduct. In order to warrant or require the granting of a new trial, it must affirmatively appear that the conduct was of such a nature that it prejudiced the substantial rights of the complaining party. A mere possibility of prejudice from a remark of the judge is not sufficient to overturn a verdict or judgment. If a proper and reasonable construction will render the remark unobjectionable, the remark is not prejudicial.
12. After the jury has retired for deliberation, if it desires further information as to any part of the law or evidence pertaining to the case, it may communicate its request through the bailiff to the court in the manner directed by the court, following which the court, after notice to counsel for the parties, may consider and make such provision for a response to the request of the jury as the court finds to be required under the circumstances. In instances in which the facts were fully disclosed and all that was communicated by the judge to the jury was set forth in the record, and it affirmatively appeared no prejudice resulted from the communication, the irregularity will not be reversible error.
13. The trial judge should admonish the jury pursuant to K.S.A. 60-248(d), whenever the jury is permitted to separate during the trial, but prejudicial error will not be presumed from such failure in the absence of a showing of substantial prejudicial misconduct on the part of the jurors resulting from a failure to give the statutory admonishment. The party claiming prejudice has the burden of proof.
14. Where there has been a renunciation of an executory contract by one party, the other party has a right to elect between the following remedies: (1) to rescind the contract and pursue the remedies based on such a recision, (2) to treat the contract as still binding and wait until the time arrives for its performance and, at such time, to bring an action on the contract for breach, or (3) to treat the renunciation as an immediate breach and sue at once for any damages the party may have sustained.
15. Where the trial court has made findings of fact and conclusions of law, the function of an appellate court is to determine whether the findings are supported by substantial competent evidence and whether the findings are sufficient to support the trial court's conclusions of law. Substantial evidence is evidence which possesses both relevance and substance and which furnishes a substantial basis of fact from which the issues can reasonably be resolved. Stated in another way, substantial evidence is such legal and relevant evidence as a reasonable person might accept as being sufficient to support a conclusion.
Stephen J. Dennis, of Dennis, Stanton & Redlingshafer, L.L.C., Kansas City, MO, argued the cause and was on the briefs, for appellant Robert E. Bennett.
Gordon M. Rock, Jr., Olathe, argued the cause and was on the briefs, for appellant Linda K. Bennett.
Gordon E. Wells, Jr., of Lathrop & Gage, L.C., Overland Park, argued the cause, and Marc K. Erickson, of the same firm, was with him on the brief, for appellee.
This is an appeal by Robert Bennett and Linda Bennett, husband and wife, from judgments entered against them and in favor of Bruce Hawkinson for a breach of a third-party beneficiary claim concerning the Master Franchise Agreement, as well as claims for tortious interference with Hawkinson's Sales Franchise Agreement, tortious interference with his prospective business relationships, breach of fiduciary duty, and punitive damages. There are at least 14 issues alleging, among others, claims of erroneous jury instructions, juror misconduct, sufficiency of evidence, and other evidentiary issues.
Communications World International, Inc., (CWI) is a Denver-based telephone interconnect company. Robert and Linda entered into sales franchise agreements with CWI in 1982 and a second sales franchise agreement in 1983. On March 1, 1986, CWI and Robert and Linda entered into an additional agreement called a "Master Franchise Agreement" (Agreement). The first page of this Agreement referred to CWI as "the Franchisor" and Robert Bennett as "the Master Franchisee." Both Robert and Linda signed this Agreement, however, as "the parties hereto," under the lines provided for the signatures for "Master Franchisee." Both Robert and Linda consistently signed correspondence for the Master Franchisee, as exemplified by a letter dated November 4, 1991, to David Hunt, Chairman of CWI. This letter, written by Robert, referred to himself and Linda acquiring the Master Franchise for Kansas City. Robert wrote another letter to Hunt, stating that "Linda and I have met the requirements for productivity, commitment in time, and ethical behavior in the operation of our franchises and Master Franchise."
In addition to operating as the Master Franchisee, Robert and Linda were also sales franchisees of CWI. Linda operated Communications World of ...
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...Kansas Supreme Court most recently restated the elements of a claim for tortious interference with a contract in Hawkinson v. Bennett, 265 Kan. 564, 599, 962 P.2d 445 (1998), In Dickens v. Snodgrass, Dunlap & Co., 255 Kan. 164, 169, 872 P.2d 252 (1994), the court delineated the elements nec......
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...error had not occurred there was a real possibility that the jury would have returned a different verdict.’ ” Hawkinson v. Bennett, 265 Kan. 564, 581, 962 P.2d 445 (1998) ; see Williams, 295 Kan. at 516, 286 P.3d 195 (explaining that the burden to show clear error remains on the party seeki......
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