Kansas State Court Appellate Standards of Review an Understanding Unblinded

JurisdictionKansas,United States
CitationVol. 62 No. 12 Pg. 34
Publication year1993
Kansas Bar Journals
Volume 62.


Journal of the Kansas Bar Association
December, 1993


Robert W. Parnacott [FNa]

Copyright (c) 1993 by the Kansas Bar Association; Robert W. Parnacott


After an appellate court determines it has jurisdiction, the next question it must ask, and answer, is what is the proper standard of review. The standard of review concerns "how certain the reviewers must be of error by the original decisionmaker in order to overturn the original decision." [FN2] It should be set out at the beginning of the analysis of each issue and then "woven" into the fabric of the argument. [FN3]

The appellate court ordinarily applies one of the following three standards. If a conclusion of law is attacked, the appellate court owes no deference to the trial court and has unlimited review. If a finding of fact is challenged, the court looks to see whether substantial competent evidence supports the finding of fact. If the trial court action was discretionary, the appellate court only determines if the action was reasonable. These three standards cover the majority of trial court actions. Each of these standards will be defined, selected examples will be given, and then any exceptions will be discussed.

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Certain trial court actions are reviewed under other rules. Those special matters not covered by the three basic standards will be discussed separately. There are also situations that although jurisdiction exists, and the trial court may have erred, the appellate court will not review the matter. Those situations will also be discussed in the last section of the article. This article will not address federal appellate court standards of review. There are, however, other resources available that discuss federal appellate court standards of review. [FN4]

Kansas State Court Appellate Standards of Review

Most Common Areas of Review


An appellate court's review of trial court's conclusions of law is "unlimited" [FN5] or "plenary." [FN6] The appellate court is free to substitute its judgment for that of the trial court and can draw its own conclusion of the question presented.

Criminal -- Examples

. Whether a prima facie showing has been made that the striking of jurors was for racially neutral reasons; [FN7] . Whether government conduct is so outrageous as to require dismissal of criminal charges; [FN8] . Whether the statutes providing for presumptive placement on probation or in community corrections applies to a defendant; [FN9] . Whether evidence is too remote to be admitted; [FN10] . The sufficiency of an affidavit to require a hearing on whether a judge should be disqualified for bias or prejudice; [FN11] . Review of a motion to suppress where the facts are not in dispute; [FN12] . Whether an item is a dangerous weapon; [FN13] . Whether false testimony was material in a perjury matter; [FN14] . Whether a stop by a law enforcement officer, in some cases, was reasonable; [FN15] . Construction of plea agreements. [FN16] Civil -- Examples

. Construction or interpretation of written instruments, i.e. wills [FN17] or contracts; [FN18] . Whether language or acts constitute contempt of court; [FN19] . Propriety of liquidated damages provisions in contracts; [FN20] . Existence of a duty; [FN21] . The sufficiency of an affidavit to require a hearing on whether a judge should be disqualified for bias or prejudice; [FN22] . Whether property is exempt from ad valorem tax if the facts are agreed upon; [FN23] . Whether a partnership exists between persons if the facts are undisputed; [FN24] . Whether an attorney has a conflict of interest; [FN25] . Existence of proximate cause if evidence undisputed or susceptible of only one inference; [FN26] . Construction or interpretation of a statute. [FN27] Exceptions

Although ordinarily construction and interpretation of a statute is reviewed de novo, under the doctrine of operative construction courts give deference to an agency's interpretation of statutes applicable to its operation, as well as to the agency's own rules and regulations. [FN28] Although the agency's interpretation may be entitled to "controlling significance," [FN29] the final interpretation rests with the courts. [FN30]

Findings of Fact

An appellate court in reviewing findings of fact determines only whether the findings are supported by substantial competent evidence, which is "such legal and relevant

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evidence as a reasonable person might accept as being sufficient to support a conclusion." [FN31] Findings of fact not challenged on appeal are "final and conclusive." [FN32]

If challenged, the appellate court "accept[s] as true the the evidence and all inferences to be drawn therefrom which support or tend to support the findings of the trial court, and [it] must disregard any conflicting evidence or other inferences which might be drawn therefrom." [FN33] The appellate court does not "reweigh the evidence" or reassess the credibility of witness. [FN34] Although K.S.A. 60-252(a) states findings of fact made by a judge in non-jury actions will not be set aside unless clearly erroneous, the Kansas Supreme Court has stated this statute, when enacted, did not change the substantial competent evidence standard of review. [FN35]


.Whether a confession or other extrajudicial admission was voluntary; [FN36] .Whether a defendant "used" a firearm in the commission of a crime [FN37] .Whether a juvenile should be prosecuted as an adult; [FN38] .The presence or absence of an incentive to falsify or distort testimony under K.S.A. 60-460(d); [FN39] .Whether the underlying felony was abandoned or completed prior to the killing so as to remove it from the felony murder rule; [FN40] .Whether a series of acts constituted a single larcenous impulse or plan; [FN41] .Whether a defendant refused to take a breath test; [FN42] .Whether a delay in the execution of a warrant was reasonable; [FN43] .Whether consent given for a search was voluntary; [FN44] .Whether there was reasonable grounds to believe a defendant operated an automobile under the influence of alcohol; [FN45] .Whether a sale of a security under the Kansas Securities Act took place; [FN46] .Where venue lies for prosecution of a crime, [FN47] .Whether evidence is inadmissible as "fruit of the poisonous tree;" [FN48] .The value of items taken by theft, [FN49] .Whether a defendant's conduct was wanton, [FN50] .Whether a witness was an accomplice to the crime charged, [FN51] .Whether a defendant was predisposed to commit a crime. [FN52] Civil-Examples

.Whether title was acquired by adverse possession; [FN53] .Whether a duty was breached; [FN54] .Whether a conflict of interest and a confidential attorney-client relationship together results in undue influence; [FN55] .The existence of contributory negligence; [FN56] .Whether a transfer was a gift; [FN57] .Proximate cause, where evidence is disputed or susceptible to multiple inferences; [FN58] .Whether an act is a deceptive practice under the Consumer Protection Act; [FN59] .Whether an employer received notice of an injury covered under the Workers Compensation Act; [FN60] .The existence of a contract; [FN61] .Whether a purchase money mortgage was recorded without unnecessary delay; [FN62] .Whether a waterway is navigable; [FN63] .Whether a person has actual knowledge of something; [FN64] .Existence, duration and extent of a workers incapacity; [FN65] .If there is a causal connection between a breach of duty and an injury; [FN66] .Whether an insurance company refused to pay a claim without just cause or excuse; [FN67] .

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Whether sale of collateral under either the U.C.C. or U.C.C.C. was commercially reasonable. [FN68] Exceptions

When a jury finds a defendant guilty the appellate court must decide "whether, after review of all the evidence, viewed in the light most favorable to the prosecution, [it] is convinced that a rational factfinder could have found the defendant guilty beyond a reasonable doubt." [FN69] This standard, which stems from the United States Supreme Court decision in Jackson v. Virginia, [FN70] was recognized by the Kansas Supreme Court in State v. Voiles. [FN71] Although the Kansas state appellate courts, for a time, only looked to the evidence in favor of the verdict in addressing this type of issue, [FN72] the appellate courts now consistently review all the evidence adduced in addressing this issue. This standard is also applied if the criminal defendant seeks a judgment of acquittal after a jury verdict [FN73] or if a juvenile offense adjudication is involved. [FN74] Questions of credibility of witnesses are "resolved in favor of the State and all reasonable inferences as are possible from the evidence and necessary to support the verdict must be considered as having been arrived at by the trier of fact." [FN75]

In reviewing a civil jury verdict the appellate court looks to see "[i]f the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict." [FN76] In civil cases, as in criminal cases, "it is not the function of appellate courts to weigh the evidence or pass on the credibility of the witnesses." [FN77] As long as the evidence, and all reasonable inferences drawn from the evidence, supports the verdict, it will be affirmed. [FN78]

When the controlling factors are based upon stipulations of fact or documentary evidence, "the trial court has no peculiar opportunity to evaluate the credibility of witnesses," the appellate court has as good an opportunity to examine and consider the evidence as did the court below, and therefore it can...

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