Unruh v. Purina Mills

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IN THE SUPREME COURT OF THE STATE OF KANSAS

No. 97,494

KENNETH E. UNRUH AND ROBERT K. CARTER,
Appellees,

v.

PURINA MILLS, LLC,
Appellant.


SYLLABUS BY THE COURT


1.
The standard of review for a district court decision to consolidate cases for trial is abuse
of discretion.

2.
Where the underlying facts and multiple plaintiffs' theories at trial are substantially the
same, the statutory requirements for joinder are satisfied.

3.
The pretrial order supersedes any pleadings and has the effect of amending the pleadings
to conform to it.

4.
If a party has an objection to a pretrial order, the party must file the objection in writing
with the district court.

5.
When the trial court grants or denies a motion in limine and the evidence is introduced at
trial, the moving party must object at trial to the admission of the evidence to preserve the issue
for appeal.
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6.
Proof of willful conduct under the Kansas Consumer Protection Act requires proof of
intent to harm the consumer.

7.
When a verdict is challenged as being contrary to the evidence, an appellate court does
not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when
considered in the light most favorable to the prevailing party, supports the verdict, the appellate
court should not intervene.

8.
The failure to object to a jury instruction invokes a clearly erroneous review standard,
whereby a court must be able to declare a real possibility existed that the jury would have
returned a different verdict if the trial error had not occurred.

9.
The caption of a document submitted to a jury will not generally be a source of reversible
error.

10.
The issue of the district court's authority to award attorney fees is a question of law over
which appellate review is unlimited. Where the trial court has authority to grant attorney fees, its
decision is reviewed under the abuse of discretion standard.

11.
A court may not award attorney fees absent statutory authority or an agreement by the
parties. Without such authority, a trial court's equitable powers do not extend to the awarding of
attorney fees.


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12.
Where several causes of action are joined and only some of them permit the award of
attorney fees, the work on the several causes must be segregated in determining an appropriate
attorney fee award; however, where different causes of action are based on mutual facts and it
would be difficult if not impossible for counsel to segregate the time spent prosecuting each
theory, attorney fees may be awarded despite the failure of counsel to segregate the time spent on
each claim.

Review of the judgment of the Court of Appeals in an unpublished opinion filed June 27, 2008. Appeal
from the Sedgwick district court; JEFFREY E. GOERING, judge. Judgment of the Court of Appeals affirming in
part and reversing in part the district court is affirmed in part and reversed in part. Judgment of the district court is
affirmed. Opinion filed December 11, 2009.

Matthew M. Merrill, of Brown & Dunn, P.C., of Kansas City, Missouri, argued the cause, and Julie J.
Gibson, of the same firm, was with him on the briefs for appellant.

Randall K. Rathbun, of Depew Gillen Rathbun & McInteer LC, of Wichita, argued the cause, and, Jack
Scott McInteer, of the same firm, was with him on the briefs for appellee.

Per Curiam: On review of the judgment of the Court of Appeals in Unruh v. Purina
Mills, No. 97,494, unpublished opinion filed June 27, 2008, Purina Mills, LLC, appeals from the
jury verdict and award of attorney fees entered against it in a breach of warranties and Kansas
Consumer Protection Act (KCPA), K.S.A. 50-623 et seq. action involving feed supplements
supplied to two cattle ranchers.

A comparison with the record on appeal establishes that the statement of facts contained
in the decision of the Court of Appeals is accurate and sufficient for purposes of review, as
follows:

"Kenneth E. Unruh and Robert K. Carter are neighboring cattle ranchers. In August
2003, Unruh attended a seminar conducted by Purina Mills, LLC (Purina), to promote a self-
feeding system designed to reduce labor, save time, permit cattle to perform to their highest
genetic ability, and boost total net return. The system used a creep feeder that distributed a
product known as '2HL,' which supplements a diet of grass or hay. 2HL is a mixture of corn,
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sunflower seed, cottonseed, and soybeans that varies from batch to batch. Purina calculates the
cheapest mixture based on current costs that provides the promised nutrition content. This
technique—the least cost formula—has been used in the animal feed industry for the past 50 years.
Each bag of 2HL has a tag that guarantees the mixture contains a minimum amount of certain
ingredients.

"Unruh was impressed with the system and told Carter about it. As a result, Unruh and
Carter agreed to purchase the system. They received their first load of 2HL in late November
2003. They had no initial problems with the system other than regulating the flow of feed from
the feeder. Tim Peissig, Purina's district manager, and Kent Hansen, the owner of the local retail
distributer, observed Unruh's cows 2 weeks later and concluded that the system was working
properly. However, Hansen noted that Unruh had no hay and very little grass available to his
cattle and reminded Unruh to provide the cows with an ample supply.

"When Unruh and Carter received their second load of 2HL in late December 2003, they
noticed that the feed had a different color than the first batch and was hard and oily in texture.
They had to break the feed apart with crowbars and claw hammers to make the product edible for
their cows. Over the next several weeks, Unruh and Carter continued to break up the 2HL in the
feeders daily, but their cattle's consumption of the feed dropped and the cows began losing weight.

"In February 2004, Unruh notified Purina of these problems. Peissig and Hansen
returned to Unruh's ranch, and Hansen again noted the lack of hay for Unruh's cows. Testing of
the feed revealed that Purina had changed the formula for 2HL between the first and second batch.
Sunflower meal increased from 5% to 15% and cottonseed meal decreased from 10% to 0%.
Nevertheless, the mix met Purina's nutrition specifications.

"Peissig and Hansen attempted to solve Unruh's problems by delivering to Unruh a batch
consisting of 80% 2HL and 20% corn. Pending delivery of this new batch, Unruh fed his cows as
much hay as possible as Peissig had suggested. Carter also fed his cows more hay as soon as they
began to lose weight.

"When Peissig and Hansen returned a couple of weeks later, nearly a dozen of Unruh's
and Carter's cows had died and others aborted their calves and had to be sold at a loss.

"In August 2005, Unruh and Carter filed a suit against Purina claiming damages for
breach of express and implied warranties. The court later granted them leave to amend their
petition to include claims for breach of the Kansas Consumer Protection Act (KCPA), K.S.A. 50-
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625 et seq. Unruh and Carter never filed and served an amended petition which included their
KCPA claims, though a proposed amended petition was attached to their motion for leave to
amend. The claim was later set forth in the pretrial order.

"Purina moved to sever for trial the separate claims of Unruh and of Carter. The district
court denied the motion. Purina also moved in limine to prohibit Unruh and Carter from
expressing lay opinions on causation. In overruling the motion, the [judge] observed:

"'Mr. Carter and Mr. Unruh, their profession is in raising cattle, and in that
respect an integral part of that business is feeding cattle and putting weight on
cattle so that they can maximize their profits when these cattle are sold. And
doing that kind of business, they acquire certain knowledge about cattle and
what they eat and what they're fed, and I think that they are qualified to offer
testimony in that regard.'

"At trial, Bret Galyardt, a Purina employee engaged in quality control, testified that cold
weather and other variables may affect the flowability of feed, though not to the extent that a
rancher should be expected to have to break apart the feed with a hammer or a crowbar. Peissig
testified that he was aware that 2HL had flowability problems in very cold weather, but he did not
inform Unruh and Carter of this because it did not happen very often.

"Unruh testified that the switch to 2HL did not reduce his labor or time or ensure his
cattle would perform to the best of their genetic ability. To the contrary, he believed that his cows'
inability to feed on the 2HL due to the flowability problem resulted in many of them dying or
aborting their calves. Nevertheless, he did not disagree with the statement that Purina wanted him
to succeed in the use of 2HL. He testified that the use of 2HL caused the death of 5 registered
Angus cows, the reduced value of 14 other cows, and the loss of calves due to 59 cows aborting.
Unruh claimed damages of $50,900.

"Carter's testimony was, for the most part, consistent with that of Unruh. He testified that
the use of 2HL caused him to lose 4 cows, and he had to sell 16 other cows at a loss. He also
claimed he lost 16 calves due to cows aborting. He claimed damages of $17,600.

"James Forcherio, Ph.D., Purina's expert, opined that Unruh's and Carter's cattle must
have been starving to lose the amount of weight they experienced within the relevant 30-day
period. He attributed the loss to the lack of adequate forage, not the second batch of 2HL. He
testified that 2HL is only a supplement to help cows gain weight and should be provided in
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addition to an otherwise adequate food supply. In his opinion, Unruh's and Carter's cows would
not have lost as much weight as they did, even when supplied with a bad batch of 2HL, if they
were otherwise provided with an adequate food supply.

"The jury returned a verdict in favor of Unruh and Carter for breach of implied warranties
of merchantability and fitness for a particular purpose, breach of express warranty, and violation
of the KCPA. On Unruh's claims the jury apportioned 20% of the fault to Unruh and 80% to
Purina and found his damages to be $47,550. On Carter's claims the jury apportioned 5% of the
fault to Carter and 95% to Purina and found his damages to be $17,125.

"After dismissing the jury, the district court discovered that the caption on the jury
verdict forms incorrectly listed the defendant as 'State Farm Mutual Automobile Insurance
Company' rather than Purina. The court ultimately found this to be harmless and denied Purina's
motion for new trial or, in the alternative, for judgment notwithstanding the verdict. The court
granted Unruh's and Carter's motion for attorney fees based upon their successful KCPA claims."
Unruh, slip op. at 2-6.

Purina took a timely appeal. The Court of Appeals affirmed in part and reversed in part,
finding that insufficient evidence supported the KCPA claims and the resulting award of attorney
fees. Slip op. at 18-19. Judge Malone dissented in part and would have affirmed the district
court on all issues. Slip op. at 23 (Malone, J., concurring and dissenting). Both parties filed
petitions for review. The plaintiffs sought review of a ruling relating to the definition of
willfulness under the KCPA. Purina sought review of rulings relating to the jury verdict form
and the testimony of the plaintiffs on causation. This court granted review on all issues. See
Supreme Court Rule 8.03(g)(1) (2009 Kan. Ct. R. Annot. 66); Troutman v. Curtis, 286 Kan. 452,
457, 185 P.3d 930 (2008) (on granting review without explicit limitation, Supreme Court may
review all issues presented to and decided by the Court of Appeals).

I. JOINDER

The district court joined Unruh's and Carter's claims in a single cause of action. Purina
argues that joinder constituted reversible error because Unruh and Carter initially stated different
theories of causation; they engaged in different farm management practices; and Carter had to
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rely on evidence introduced by Unruh to support his claims of misrepresentation. The Court of
Appeals found the district court did not abuse its discretion in joining the claims. Unruh, slip op.
at 15-18.

The standard of review for a district court decision to consolidate cases for trial is abuse
of discretion. See State ex rel. Graeber v. Marion County Landfill, Inc., 276 Kan. 328, 352, 76
P.3d 1000 (2003) (decision not to join parties reviewed under abuse of discretion standard);
Tuley v. Kansas City Power & Light Co., 252 Kan. 205, 217, 843 P.2d 248 (1992) (decision
whether to join parties in class action reviewed under abuse of discretion standard); Loucks v.
Farm Bureau Mut. Ins. Co., 33 Kan. App. 2d 288, 302, 101 P.3d 1271 (2004), rev. denied 279
Kan. 1006 (2005) (decision not to consolidate cases for trial reviewed under abuse of discretion
standard).

K.S.A. 60-220(a) provides in relevant part for permissive joinder of parties as plaintiffs

"if they assert any right to relief jointly, severally, or in the alternative in respect of or arising out
of the same transaction, occurrence, or series of transactions or occurrences and if any question of
law or fact common to all these persons will arise in the action. . . . A plaintiff or defendant need
not be interested in obtaining or defending against all the relief demanded."

K.S.A. 60-220(b) provides that the district court may order separate trials in order to
"prevent a party from being embarrassed, delayed, or put to expense by the inclusion of a party
against whom [the party] asserts no claim and who asserts no claim against [that party]" and in
order to "prevent delay or prejudice."

As the Court of Appeals noted, Unruh and Carter raised cattle on adjoining ranches and
used similar feeding practices. Both purchased feed supplements from Purina, and both suffered
losses to their cattle. They raised the same claims against Purina. Although Carter testified in a
deposition that he believed the nutritional content of the Purina supplement was the cause of his
losses, he testified at trial that the clumping and poor flow were the problems resulting in the
losses.
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The underlying facts and the theories at trial were substantially the same, and the
statutory requirements for joinder were satisfied. Even if Carter "needed to ride the coattails of
Unruh's evidence" and in fact bootstrapped his claims onto Unruh's, the Court of Appeals
correctly noted that Purina could have expected Carter to present the same witnesses and theories
that Unruh did to support his case. Slip op. at 17.

The Court of Appeals concluded: "Rather than causing delay or unnecessary expense, the
consolidation of these claims for trial had the exact opposite effect. Separate trials would have
caused considerabl[e] delays and caused the parties and the court to waste considerable time and
expense in the presentation of redundant testimony and exhibits." Slip op. at 17-18.

The Court of Appeals opinion accurately states the facts and reaches the correct
conclusion. The district court did not abuse its discretion in joining the plaintiffs' cases for trial.
We affirm on this issue.

II. SUFFICIENCY OF THE PLEADINGS

Purina next argues on appeal that the plaintiffs' initial petition did not plead a cause of
action under the KCPA; although the district court gave the plaintiffs leave to amend their
petition, they failed to do so, and the KCPA claims were erroneously submitted to the jury. The
Court of Appeals noted that the pretrial order stated claims under the KCPA, Purina did not
make a timely objection to the order, and the issue was not properly preserved for appeal. See
Unruh, slip op. at 9-10. The analysis by the Court of Appeals is correct.

Whether a pleading is sufficient to state a cause of action is a question of law. See
Tuggle v. Johnson, 190 Kan. 386, 390, 375 P.2d 622 (1962); Ewing v. Pioneer Nat'l Life Ins.
Co., 158 Kan. 371, 374, 147 P.2d 755 (1944). Errors in law are subject to unlimited review on
appeal. See Alliance Mortgage Co. v. Pastine, 281 Kan. 1266, 1271, 136 P.3d 457 (2006).

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Under notice pleading, the petition is not intended to govern the entire course of the case.
Rather, the pretrial order is the ultimate determinant as to the legal issues and theories on which
the case will be decided. Halley v. Barnabe, 271 Kan. 652, 656-57, 24 P.3d 140 (2001). The
pretrial conference order, filed June 14, 2006, stated as the first issue of fact: "Did the defendant
engage in deceptive acts or practices under the Kansas Consumer Protection Act?" The pretrial
order supersedes any pleadings and has the effect of amending the pleadings to conform to it.
K.S.A. 2008 Supp. 60-216(e); Bob Eldridge Constr. Co. v. Pioneer Materials, Inc. 235 Kan. 599,
606, 684 P.2d 355 (1984); Knowles v. Fleetwood Motorhomes of California, Inc., 40 Kan. App.
2d 573, 578, 194 P.3d 38 (2008);

If a party has an objection to a pretrial order, the party must file the objection in writing
with the district court. Supreme Court Rule 140(f) (2008 Kan. Ct. R. Annot. 220). A party
generally must make a timely objection to a district court ruling in order to preserve an issue for
appeal. See Dragon v. Vanguard Industries, 282 Kan. 349, 356, 144 P.3d 1279 (2006); State v.
Anthony, 282 Kan. 201, 206, 145 P.3d 1 (2006); Price v. Grimes, 234 Kan. 898, 901, 677 P.2d
969 (1984).

The pretrial order sufficiently stated the plaintiffs' claims under the KCPA, and the order
superseded any petitions or amended petitions that the plaintiffs may have filed. The KCPA
claims were properly submitted to the jury, and we affirm on this issue.

III. EXPERT TESTIMONY

Prior to trial, Purina filed a motion in limine seeking to prevent the plaintiffs, Unruh and
Carter, from testifying that the feed supplement caused the losses to their cows. The trial court
ruled that Unruh and Carter could testify to causation based upon their experience as cattle
ranchers. At trial, Purina did not object to the testimony of Unruh and Carter on the issue of
causation. To the Court of Appeals, Purina argued that the plaintiffs should have been required
to present expert testimony on the issue of causation. The Court of Appeals found that Purina
had failed to preserve an objection to the plaintiffs' testimony at trial:

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"At trial, Purina raised an objection based upon the economic loss doctrine but failed to
make a contemporaneous objection to the testimony on causation. Notwithstanding the adverse
ruling on causation at the hearing on Purina's motion in limine, to preserve the issue for appeal
Purina had to object to the testimony at trial. See Fitzpatrick v. Allen, 24 Kan. App. 2d 896, 902,
955 P.2d 141, rev. denied 264 Kan. 821 (1998). Further, objecting on one ground at trial does not
preserve a different objection on appeal. 24 Kan. App. 2d at 903. Purina never objected at trial to
the causation testimony of Unruh and Carter. Its objection on a wholly separate and distinct
ground, the economic loss doctrine, did not preserve the issue for appeal. Accordingly, the
causation issue is not properly before us." Unruh, slip op. at 15.

On appeal to this court, Purina attempts to avoid the failure to register a contemporaneous
objection by arguing that the plaintiffs did not present any causation testimony. Purina maintains
the testimony cited by the Court of Appeals pertained to damages, not to causation, and
consequently, Purina could not have objected to causation testimony and did not fail to preserve
the issue for appeal. In its initial brief, however, Purina argued that it was error for the district
court to allow the plaintiffs to testify relating to causation.

An appellate court reviews a trial court's decision on a motion in limine under the abuse
of discretion standard. Gerhardt v. Harris, 261 Kan. 1007, 1010, 934 P.2d 976 (1997). When the
trial court grants or denies a motion in limine and the evidence is introduced at trial, the moving
party must object at trial to the admission of the evidence to preserve the issue for appeal.
Griffin v. Suzuki Motor Corp., 280 Kan. 447, 470, 124 P.3d 57 (2005); Fitzpatrick v. Allen, 24
Kan. App. 2d 896, 902, 955 P.2d 141, rev. denied 264 Kan. 821 (1998).

We have thoroughly reviewed the record on appeal and find that the Court of Appeals
was correct in ruling that Purina failed to preserve an objection on this issue. The matter is not
properly before us. We affirm the Court of Appeals on this issue.

IV. KANSAS CONSUMER PROTECTION ACT

The Court of Appeals majority found that willful conduct under the KCPA requires proof
of intent to harm the consumer. Unruh, slip op. at 11. The Court of Appeals then found that the
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evidence did not support a finding of intent to harm. Slip op. at 13. Having found that the claim
under the KCPA was not supported, the Court of Appeals majority reversed the award of
statutory attorney fees. Slip op. at 18-19.

In his concurring and dissenting opinion, Judge Malone questioned the majority's
statutory construction but concluded that the record contained sufficient evidence that Purina
intended to harm its customers. Slip op. at 20-21, 23 (Malone, J. dissenting in part).

Unruh and Carter appeal from the Court of Appeals' finding that willful conduct requires
proof of intent to harm.

Interpretation of a statute is a question of law over which this court has unlimited review.
Genesis Health Club, Inc. v. City of Wichita, 285 Kan. 1021, 1031, 181 P.3d 549 (2008). The
fundamental rule governing interpretation of statutes is that the legislature's intent governs if this
court can ascertain that intent. The court presumes that the legislature expressed its intent
through the language of the statutory scheme. In re G.L.V., 286 Kan. 1034, 1040-41, 190 P.3d
245 (2008).

When the statutory language is plain and unambiguous, the courts therefore do not need
to resort to statutory construction. 286 Kan. at 1041. "A statute should not be read to add that
which is not contained in the language of the statute or to read out what, as a matter of ordinary
language, is included in the statute. [Citation omitted.]" Casco v. Armour Swift-Eckrich, 283
Kan. 508, 521, 154 P.3d 494 (2007).

Only when the language of a statute is unclear or ambiguous does the court move to the
next analytical step, applying canons of construction or relying on legislative history to construe
the statute in accord with the legislature's intent. In re K.M.H., 285 Kan. 53, 79, 169 P.3d 1025
(2007), cert. denied 172 L. Ed 2d 239 (2008).

K.S.A. 50-626(b)(3) defines as an unlawful deceptive act or practice "the willful failure
to state a material fact, or the willful concealment, suppression or omission of a material fact."
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The Court of Appeals majority concluded that the word "willful" means something more than
"intentional"; it must also include an "intent to harm the consumer." Unruh, slip op. at 11. It
reached this conclusion based on two factors.

First, in 1991, the legislature substituted the word "willful" for the word "intentional" in
both K.S.A. 50-626(b)(2) and in K.S.A. 50-626(b)(3). L. 1991, ch. 159, sec. 2. In 1993, it
amended K.S.A. 50-626(b)(3) a second time to substitute "willful" for another use of
"intentional" in that subsection. L. 1993, ch. 177, sec. 1. Because the appellate courts presume
that the legislature does not intend to enact useless or meaningless legislation, see Hawley v.
Kansas Dept. of Agriculture, 281 Kan. 603, 631, 132 P.3d 870 (2006), the Court of Appeals
concluded that the legislature intended the word "willful" to mean something more restrictive
than the word "intentional." Unruh, slip op. at 11.

Second, the Court of Appeals looked to PIK Civ. 3d 103.04, which defines "willful
conduct" as "[a]n act performed with a designed purpose or intent on the part of a person to do
wrong or to cause an injury to another." Slip op. at 11; see PIK Civ. 4th 103.04 (same
definition). The Court of Appeals cited to three cases that applied the PIK definition to civil
litigation in general: Heckard v. Martin, 25 Kan. App. 2d 162, 165, 958 P.2d 665 (1998) (under
Residential Landlord and Tenant Act, PIK Civ. 3d 103.04 definition of "willful" required tenant
have intent to do wrong or cause injury to another); Tufts v. Newmar Corp., 53 F. Supp. 2d 1171,
1178 (D. Kan. 1999) (citing Heckard and quoting PIK Civ. 3d 103.04 for proposition that
"willful conduct" under the KCPA requires showing intent to do wrong or cause injury to
another); and Griffin v. Security Pacific Automotive Financial, 33 F. Supp. 2d 926, 930 (D. Kan.
1998) (citing Heckard and quoting PIK Civ. 3d 103.04). Unruh, slip op. at 12.

This definition of the word "willful" in the PIK instructions was based upon language in a
case heard by this court in 1908. See Railway Co. v. Lacy, 78 Kan. 622, 629, 97 P. 1025 (1908),
reh. denied November 12, 1908 ("To constitute willful negligence, there must be a design,
purpose, or intent to do wrong or to cause the injury."). It has remained virtually unchanged
since the first publication of the pattern instructions. The legislature is presumed to be aware of
the existing law when it enacts an amendment. See State v. Boyer, 289 Kan. 108, 116, 209 P.3d
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705 (2009); Frick v. City of Salina, 289 Kan. 1, 8, 208 P.3d 739 (2009). We therefore agree with
the reasoning of the majority for the Court of Appeals, find that it was correct, and affirm the
holding that the use of "willful" in the KCPA includes an intent to harm the consumer.

Having affirmed the Court of Appeals majority on the question of the elements that the
plaintiffs were required to prove, we must next examine whether the plaintiffs met their burden
of proof under the standard we have recognized. When a verdict is challenged as being contrary
to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the
witnesses. If the evidence, when considered in the light most favorable to the prevailing party,
supports the verdict, the appellate court should not intervene. City of Mission Hills v. Sexton,
284 Kan. 414, 422, 160 P.3d 812 (2007).

In his dissent regarding the sufficiency of evidence for the KCPA claims, Judge Malone
summarized the evidence supporting the plaintiffs' case:

"Bret Galyardt, the quality control/warehouse supervisor for Purina, testified that Purina changed
the formula for 2HL between the first and second batch that Unruh and Carter received. Purina
increased the sunflower meal in the mixture from 5% to 15% and decreased the cottonseed meal
from 10% to 0%. No warning was given to the consumers that this might affect the flowability of
the product.

"When Unruh and Carter received the second load of 2HL, the ranchers observed that the
feed was a different color than the first batch and hard and oily in texture. They were forced to
break apart the feed with claw hammers. Over the next several weeks, the ranchers continued to
break up the 2HL in the feeders daily but consumption by the cattle dropped. In the meantime,
Unruh and Carter attempted to feed their cows as much hay as possible pursuant to Purina's
instructions. Galyardt later testified that although certain mixtures of 2HL can sometimes be a
little hard, it should not be so hard as to necessitate being broken apart by a claw hammer or a
crowbar.

"Unruh notified Purina that his cows were losing weight. Tim Peissig, Purina's district
manager, visited both Unruh and Carter in order to investigate and address the problem. Peissig
was not aware that Purina and other companies varied the ingredients in their products according
to cost. Peissig was aware that 2HL had flowability problems if it got too cold; however, he did
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not pass along this information to the ranchers because it did not happen very often. After
meeting with Unruh, Peissig completed a product complaint report to Purina indicating that Unruh
was doing everything Purina had recommended. The report concluded: 'Our formulation change
certainly caused the cows to quit eating this product. We need to do what is right for this
customer, who wants this product and program to work.' Purina failed to take any corrective
action after receiving this report. Although Peissig continued to work with Unruh and Carter, both
ranchers subsequently sustained loss of cows and calves." Unruh, slip op. at 21-23 (Malone, J.,
dissenting in part).

In addition to the foregoing, there was evidence that bags of the supplement "set up like
concrete."

On appellate review, this court accepts as true the evidence and all the inferences to be
drawn from it which support or tend to support the findings, verdict, and judgment below, while
disregarding any conflicting evidence or other inferences that might be drawn from the evidence.
When a jury's findings are attacked as being based on insufficient evidence or being contrary to
the evidence, this court's power begins and ends with a determination of whether there is
evidence to support those findings. If the evidence supports the jury's findings, this court will
not disturb them on appeal. It is of no consequence that contrary evidence might have supported
different findings if believed by the jury. Special findings by a jury are to be construed liberally
on appeal and interpreted in light of the testimony to ascertain their intended meaning. Calver v.
Hinson, 267 Kan. 369, 375, 982 P.2d 970 (1998) (quoting Brunner v. Jensen, 215 Kan. 416, Syl.
¶¶ 4 and 5, 524 P.2d 1175 [1974]).

The jury was properly instructed on the law of the case and found there were violations of
the KCPA. The jury, as the trier of fact, was best situated to weigh the evidence and assess the
credibility of the witnesses. Judge Malone found this evidence sufficient to prove the plaintiffs'
case under either definition of "willful." Slip op. at 21-23 (Malone, J., dissenting in part). We
agree and find that the evidence and all the inferences drawn from it, when considered in the
light most favorable to the prevailing party, supported the verdict. We therefore reverse the
Court of Appeals on this issue and find sufficient evidence to support the jury's verdict on the
KCPA claims.
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V. VERDICT FORMS

The verdict forms given to the jury mistakenly captioned the case "Kenneth E. Unruh and
Robert K. Carter, Plaintiffs, vs. State Farm Mutual Automobile Insurance Company, Defendant."
State Farm was not a party to this case. It appears the captions were copied from the verdict form
of another case, and the court inadvertently neglected to change the name of the defendant.
Purina did not object to the captions when the verdict forms were given to the jury, and only
after the jury returned its verdict did the district court note the mistake. Purina filed a K.S.A. 60-
259(a) motion for new trial based in part on the mistaken captions, which the district court
overruled. Purina argues on appeal that the captions were inherently prejudicial and require a
new trial.

"The failure to object to a jury instruction invokes a clearly erroneous review standard,
whereby we must be able to declare a real possibility existed that the jury would have returned a
different verdict if the trial error had not occurred." Gilley v. Kansas Gas Service Co., 285 Kan.
24, 28, 169 P.3d 1064 (2007); see K.S.A. 60-261. While a verdict form is not technically a jury
instruction, it is part of the packet sent with the jury which includes the instructions and assists
the jury in reaching its verdict. It is appropriate to apply the same standard of review applicable
to the review of instructions.

The decision on this issue, therefore, turns on whether this court finds the inadvertent
reference to the defendant as an insurance company to be clear error. A line of Kansas cases
holds that injecting the possibility of an insurance carrier into a proceeding is inherently
prejudicial. Other cases hold, however, that the failure to object to the mention of insurance
coverage undermines the issue on appeal. In addition, there is a body of cases holding that
captions in jury instructions are too insubstantial to create a presumption of prejudice.

A long line of Kansas cases suggest that the deliberate injection of insurance into trial
testimony constitutes prejudicial and reversible error. See, e.g., Harrier v. Gendel, 242 Kan. 798,
Syl. ¶ 2, 751 P.2d 1038 (1987) (introduction of evidence of collateral source benefits is
16

inherently prejudicial because it may induce a jury to decide cases on improper grounds); Ayers
v. Christiansen, 222 Kan. 225, 228, 564 P.2d 458 (1977) (introducing evidence of defendant's
insurance status in regard to issue of fault is irrelevant and prejudicial); Kelty v. Best Cabs, Inc.,
206 Kan. 654, Syl. ¶ 1, 481 P.2d 980 (1971); Caylor v. Atchison, T. & S. F. Rly. Co., 189 Kan.
210, 214, 368 P.2d 281 (1962) ("Where the offending party secures a verdict and the opposing
party makes a timely objection, and otherwise has adequately protected the right to review, the
offense [of introducing evidence of insurance coverage] is so inherently prejudicial as to require
reversal unless unusual circumstances are shown . . . . [Emphasis added]).

The rule that a party may not introduce evidence of insurance coverage, see K.S.A. 60-
454, is not, however, absolute. In the present case, the captions on the jury verdict forms appear
to have been an inadvertent mistake. The defendant did not notice the mistake, despite having
the opportunity to review the forms on at least two occasions, and did not object to the mistake.
"[W]hen the mention of insurance during a trial is purely inadvertent and is not brought into the
case by intentional misconduct of plaintiff's counsel prejudicial error has not been committed
thereby. [Citations omitted.]" Langley v. Byron Stout Pontiac, Inc., 208 Kan. 199, 203, 491 P.2d
891 (1971).

Furthermore, when a plaintiff's doctor referred to possible insurance coverage for the
plaintiff and the defendant failed to object but later moved for a mistrial, this court held that the
inadvertent injection of insurance coverage into a trial may be cured by limiting instructions.
See Kelty, 206 Kan. at 655-57. Even though no curative instructions were given in that case, the
error "was obviously induced by defense counsel's failure to file a motion for such relief and by
his statement to the court that he did not wish to have the jury admonished." 206 Kan. at 656.

In addition, a number of courts have held that the caption of a document submitted to a
jury will not generally be a source of reversible error. The Oklahoma Supreme Court has held:
"'As a general rule the caption of a verdict is not a material part thereof, and courts will not
ordinarily be governed thereby, but rather by the body of the verdict or findings.'" Henry
Building Company v. Cowman, 363 P.2d 208, 214 (Okla. 1961) (quoting St. Louis & S. F. R. Co.
v. Williams, 55 Okla. 682, 685, 155 Pac. 249 [1916]); see also Underhill v. Commonwealth, 289
17

S.W.2d 509, 511-12 (Ky. App. 1956) (error in caption of instructions naming accomplices
instead of defendants was technical and did not mislead jury); O'Flynn v. Owens-Corning
Fiberglas, 759 So. 2d 526, 532 (Miss. App. 2000) (no objection to caption of instructions and
jury form that erroneously included party that had settled out of court; issue not preserved for
appeal); State ex rel. Thompson v. Watkins, 200 W. Va. 214, 219, 488 S.E.2d 894 (1997)
(erroneous caption of jury instructions in criminal trial was mere surplusage and harmless);
Anderson v. Alfa-Laval Agri, Inc., 209 Wis. 2d 337, 349-50, 564 N.W.2d 788 (Wis. App. 1997)
(not error to include in caption read to jury defendant who had settled out of court).

The Court of Appeals noted that Purina is, in the mind of the average person, a
multinational concern that is one of the largest suppliers of animal feed in the United States and
found it "rather unlikely that the jurors would have awarded [$64,075] against Purina based on
the notion that in doing so they need not worry about Purina because the judgment would be
covered by insurance." Unruh, slip op. at 8-9. This reasoning is sound. The caption of an
instruction or verdict form is usually considered surplusage, having little, if any, impact on the
jury. The captions of the verdict forms did not constitute clear error.

VI. ATTORNEY FEES

The district court awarded the plaintiffs attorney fees totaling $37,950, which included
$35,900 expended in prosecution of the KCPA claims, $1,000 expended in prosecuting the
motion for attorney fees, and $1,050 in expert witness fees generated in supporting the motion
for attorney fees. Purina argues that attorney fees under the KCPA should be awarded only
when the court has evidence of the losing party's bad faith. The majority of the Court of Appeals
did not address this issue in its opinion, having found that the KCPA did not apply. Unruh, slip
op. at 18-19. Judge Malone would have affirmed the award of attorney fees. Slip op. at 23
(Malone, J., dissenting in part).

The issue of the district court's authority to award attorney fees is a question of law over
which appellate review is unlimited. Idbeis v. Wichita Surgical Specialists, 285 Kan. 485, 490,
173 P.3d 642 (2007). Where the trial court has authority to grant attorney fees, its decision is
18

reviewed under the abuse of discretion standard. Tyler v. Employers Mut. Cas. Co., 274 Kan.
227, 242, 49 P.3d 511 (2002). While the authority to award attorney fees is a question of law,
the amount of such an award is within the sound discretion of the district court and will not be
disturbed on appeal absent a showing that the district court abused that discretion. Johnson v.
Westhoff Sand Co., 281 Kan. 930, 940, 135 P.3d 1127 (2006).

A court may not award attorney fees absent statutory authority or an agreement by the
parties. Without such authority, a trial court's equitable powers do not extend to the awarding of
attorney fees. Idbeis 285 Kan. at 495. The KCPA provides for attorney fees, while no provision
for attorney fees exists under the plaintiffs' common-law theory of damages.

K.S.A. 50-634(e) provides:

"(e) Except for services performed by the office of the attorney general or the office of a
county or district attorney, the court may award to the prevailing party reasonable attorney fees,
including those on appeal, limited to the work reasonably performed if:

(1) The consumer complaining of the act or practice that violates this act has brought or
maintained an action the consumer knew to be groundless and the prevailing party is the supplier;
or a supplier has committed an act or practice that violates this act and the prevailing party is the
consumer; and

(2) an action under this section has been terminated by a judgment, or settled."

Purina asks this court to add to the statutory language an implicit requirement that the
supplier has acted in bad faith. This argument asks the court to read into the statute language
that is not present and to interpret the statute in a manner less liberal to consumers.

If the legislature intended a bad-faith requirement, it could have included such language.
Compare the preceding KCPA language with the following language in the Kansas Open
Records Act, for example:

19

"In any action hereunder, the court shall award costs and a reasonable sum as an
attorney's fee for services rendered in such action, including proceedings on appeal, to be
recovered and collected as part of the costs to the plaintiff if the court finds that the agency's
denial of access to the public record was not in good faith and without a reasonable basis in fact
or law." (Emphasis added.) K.S.A. 2008 Supp. 45-222(c).

Furthermore, the very language of the KCPA distinguishes between attorney fees for
plaintiff consumers and attorney fees for defendant suppliers. Suppliers may receive attorney
fees if the consumer brought an action that "the consumer knew to be groundless"; consumers,
on the other hand, may receive attorney fees if a supplier "committed an act or practice that
violates this act." K.S.A. 50-634(e)(1). The language is clear and unambiguous: any violation of
the KCPA by a supplier constitutes grounds for attorney fees.

The language allowing attorney fees on appeal was added to the KCPA as part of the
same 1991 legislation that amended K.S.A. 50-626(b)(3) to use the word "willful" instead of
"intentional." See L. 1991, ch. 159, sec. 2. A letter from Assistant Attorney General D. Jeanne
Kutzley, dated April 3, 1991, indicated the Attorney General was supporting the bill that
generally broadened consumer rights, stating: "[W]e added language that would allow individual
consumers who bring a private action to get attorney fees on appeal." Minutes, Sen. Judiciary
Comm. April 3, 1991, attach 1. While this statement is neutral, it does not support a legislative
intent to add to the statute a bad-faith requirement that is not explicitly present in the statutory
language.

The KCPA provides for attorney fees when a supplier willfully fails to disclose relevant
information to a consumer. This court finds that the conditions of the KCPA were met by the
plaintiffs' evidence. The award of attorney fees was appropriate and was not an abuse of
discretion.

Purina further contends that counsel for the plaintiffs failed to segregate their time
devoted to express and implied warranty claims and their claims under the KCPA. Purina argues
that this failure to break the time down by the alternative theories that the plaintiffs pursued
constitutes reversible error.
20

Where the trial court has authority to grant attorney fees, its decision is reviewed under
the abuse of discretion standard. Tyler, 274 Kan. at 242. Judicial discretion is abused when
judicial action is arbitrary, fanciful, or unreasonable. If reasonable persons could differ as to the
propriety of the action taken by the trial court, then it cannot be said that the trial court abused its
discretion. In re Marriage of Bradley, 282 Kan. 1, 7, 137 P.3d 1030 (2006).

In DeSpiegelaere v. Killion, 24 Kan. App. 2d 542, 549, 947 P.2d 1039 (1997), our Court
of Appeals held:

"Where several causes of action are joined and only some of them permit the award of attorney
fees, the work on several causes must be segregated in determining an attorney fee award.

"Here, we find that there are 12 of the stated defects which are not part of the fraud or
KCPA claims. There is no basis for an award of fees for the prosecution of these claims. We
recognize that Kansas has not had a clearly stated rule for this legal issue. In the future, if counsel
have made no attempt in their time records to segregate their time as to different causes of action
that are not mutual in their facts and impossible of segregation, it could well be that a court could
find a failure of proof and award no attorney fees."

Purina relies on this language in arguing that the district court erred in granting attorney
fees when counsel for the plaintiffs failed to segregate their time devoted to developing the
warranty claims from their time devoted to developing the KCPA claims.

In York v. InTrust Bank, N.A., 265 Kan. 271, 308, 962 P.2d 405 (1998), this court found
that the district court's award of attorney fees was not an abuse of discretion. Under the facts of
that case, the court held:

"It was clearly necessary for all of the underlying facts of the transaction to be fully developed in
order to prosecute the KCPA claim. Those services may have also resulted in findings of other
tortious conduct sufficient to justify a judgment, but the KCPA claim is inextricably intertwined
with the single transaction which is the subject of this litigation." 265 Kan. at 308.

21

In the present case, Purina contends that the plaintiffs' case was from the beginning
directed toward the breach of warranty claims and the KCPA claims were an afterthought.
Counsel for the plaintiffs did not submit fees for time prior to filing their motion to amend the
petition to include their claims under the KCPA.

The district court heard the testimony of Mikel Stout, an attorney with approximately 45
years' experience in civil litigation, relating to the attorney fees. He testified in a general manner
to the reasonableness of the hourly rate, $250, and the reasonableness of the amount of time
devoted to developing and trying the case, 143.60 hours. He expressed doubts about whether it
would be possible to segregate the time spent on the warranty claims from the time spent on the
KCPA claims. Purina elected not to present expert testimony on the attorney fees question.

The district court found the requested attorney fees reasonable. The court made the
following finding with respect to the segregation of fees:

"4. Defendant's contention that Plaintiffs are not entitled to recover attorney fees
based upon a failure to segregate the time billed in connection with prosecution of the KCPA
claim fails. Plaintiffs pursued two theories of recovery: breach of express and implied warranties,
and violations of the KCPA. Under either theory, Plaintiffs were required to prove that Defendant
made representations about its product that were false. Given the overlap in the elements of each
cause of action, Mikel Stout testified that it would be difficult if not impossible for Plaintiffs
counsel to segregate the time spent prosecuting each theory.

"5. It was necessary for Plaintiffs to fully develop all the underlying facts of the
claim for breach of express and implied warranties in order to prosecute the KCPA claim. Thus,
the KCPA claim is inextricably intertwined with the claim for breach of express and implied
warranties. The fact that Plaintiffs could not segregate the time spent prosecuting the KCPA claim
versus the claim for breach of express and implied warranties does not prevent Plaintiffs from
recovering attorney fees. See York v. Intrust Bank, N.A., 265 Kan. 271, 308, 962 P.2d 405
(1998)."

The district court order was based on the expert testimony that it heard and its
understanding of the nature of the claims presented in the case. The district court is considered
22

an expert in the area of attorney fees and can draw on and apply its own knowledge and expertise
in determining the value of the services rendered. Johnson, 281 Kan. at 940. The district court's
ruling was based on substantial competent evidence, was in accord with the law, was not an
abuse of discretion, and we affirm its decision.

The plaintiffs filed a motion for appellate attorney fees before the Court of Appeals,
seeking an additional $17,757.50, based upon an hourly rate of $200 to $225 depending on the
attorney doing the work, and a total of 79.50 hours. Purina filed a response, disputing whether
the KCPA applied and whether the plaintiffs were entitled to fees in a non-KCPA action. The
Court of Appeals, based on its finding that the KCPA claims were not met, denied the motion.
The plaintiffs renewed their motion in this court, although it is miscaptioned, and added an
additional request for $20,957.75 in appellate fees, consisting of $19,765 in attorney fees (a rate
of $225 to $250 and a total of 82.40 hours) and $1,192.75 in expenses. Purina does not
challenge the reasonableness of the hourly rates, time, or expenses applied for by plaintiffs'
counsel. Purina simply renews its objection that there was no KCPA violation, which is an
argument we have rejected for the reasons stated above. We have reviewed the motion, find the
fees and expenses reasonable, and hereby grant it. In total, therefore, the plaintiffs are entitled to
recover $76,665.25 in attorneys fees and expenses.

The decision of the Court of Appeals is affirmed in part and reversed in part. The
decision of the district court is affirmed. The plaintiffs' motions for appellate attorney fees and
expenses are granted.

* * *

ROSEN, J., concurring in part and dissenting in part: I concur with the result reached by
the majority. I write separately in order to express my disagreement with the majority's
conclusion that the legislature intended to place the burden on the consumer of demonstrating
malicious intent on the part of a supplier under the Kansas Consumer Protection Act (KCPA),
K.S.A. 50-623 et seq.
23


As the majority correctly notes, a statute should not be read to add something that is not
contained in the language of the statute. Casco v. Armour Swift-Eckrich, 283 Kan. 508, 521, 154
P.3d 494 (2007). "An appellate court's first task is to 'ascertain the legislature's intent through
the statutory language it employs, giving ordinary words their ordinary meaning.' [Citation
omitted.]" State v. Gracey, 288 Kan. 252, 257, 200 P.3d 1275 (2009).

The reasoning by the majority gives little credence to the first principle of statutory
interpretation: reading the plain language of the statute as the legislature enacted it and giving
ordinary words their ordinary meanings. The majority implicitly rejects the premise that courts
should not add something to a statute that is not contained in the language of the statute.

Webster's Third New International Dictionary 2617 (Unabridged 1993) defines "willful"
as "done deliberately: not accidental or without purpose." The same dictionary defines
"intentional" as "done by intention or design." Webster's 1176. Black's Law Dictionary 1630
(8th ed. 2004) defines "willful" as "[v]oluntary and intentional, but not necessarily malicious." It
defines "intentional" as "[d]one with the aim of carrying out the act." Black's Law Dictionary,
826. The dictionary definitions demonstrate at best a subtle distinction between the words
"willful" and "intentional." Neither dictionary definition of "willful" suggests a requisite element
of intention to do wrong or cause injury.

It is true that the legislature amended K.S.A. 50-626(b)(3) in 1991 and 1993 to change
the word "intentional," which appeared twice in that paragraph as originally enacted, to "willful."
See L. 1991, ch. 159, sec. 2; L. 1993, ch. 177, sec. 1. A review of the legislative history
indicates, however, that the legislature was merely making the language of that section consistent
with other sections of the KCPA.

In a letter to the Senate Judiciary Committee dated April 3, 1991, Assistant Attorney
General Jeanne Kutzley stated the Attorney General's support of amendments to the KCPA. She
characterized the amendments as "basically a cleanup of the door to door sales portion of the
consumer protection act" and noted that the amendments sought to make terms used within the
24

KCPA consistent. Minutes Sen. Judiciary Comm. April 3, 1991, attach. 1. The overall emphasis
of the amendments was to provide greater protection for consumers when dealing with
misrepresentations and to provide for attorney fees on appeal.

The Minutes of the Senate Judiciary Committee on March 9, 1993, also reveal an
intention to expand protection for consumers from misrepresentations and to increase long-arm
jurisdiction over suppliers engaging in consumer transactions in Kansas. A February 19, 1993,
letter from Assistant Attorney General Mark Stafford referred to changes in K.S.A. 50-626(b)(2)
and (b)(3) as "clean-up language." The letter went on to note that "[v]iolations of the Kansas
consumer protection act do not always amount to tortious activity as defined by our courts" and
urged the legislature to broaden its protection of Kansas consumers by granting them relief
beyond what tort and contract law historically provided. Minutes, Sen. Judiciary Comm. March
9, 1993, attach. 2.

Nothing in the legislative history remotely suggests that the legislature sought to restrict
protection for Kansas consumers by enacting the 1991 and 1993 amendments—the amendments
instead had an overriding purpose of broadening the rights of Kansas consumers, especially in
the area of misrepresentations. The majority of this court concludes, however, that the
substitution of "willful" for "intentional" must have been grounded in a legislative desire to
increase the burden of proof for consumers under the KCPA, especially in the area of
misrepresentations.

There is another plausible explanation for the substitution of words. Other sections of the
KCPA, consumer protection, and the Kansas Fair Credit Reporting Act have used the words
"willful" or "willfully." See K.S.A. 50-631(e) (L. 1973, ch. 217, sec. 9); K.S.A. 50-636(b) (L.
1973 ch. 217, sec. 14); K.S.A. 50-657(b)(1) (L. 1988, ch. 193, sec. 6); K.S.A. 50-709(e) (L.
1973, ch. 85, sec. 144); K.S.A. 50-715 (L. 1973, ch. 85, sec. 150). The Senate Judiciary
Committee considered testimony referring to "cleaning up" the statutory language to make it
consistent. Given the broadening of consumer rights in other parts of the KCPA, it appears
likely that the change from "intentional" to "willful" reflected only an effort to make the statutory
25

language consistent, not an effort to restrict consumer rights in the specific arena of
misrepresentations.

This conclusion is consistent with K.S.A. 50-623, which explicitly states the purpose and
philosophy of construction of the KCPA is to protect consumers: "This act shall be construed
liberally to promote the following policies: . . . (b) to protect consumers from suppliers who
commit deceptive and unconscionable practices." See Moore v. Bird Engineering Co., 273 Kan.
2, 10, 41 P.3d 755 (2002).

The Court of Appeals majority and the majority of this court ground their analysis on PIK
Civ. 4th 103.04. This analysis appears backwards: jury instructions should be based on
interpretation of statutory law; interpretation of statutory law is not based on jury instructions.
PIK instructions must conform with the duties imposed by the legislature. See Carlson v.
Ferguson, 270 Kan. 576, 581-82, 17 P.3d 333 (2001).

The PIK instruction is based in part on Railway Co. v. Lacy, 78 Kan. 622, 629, 97 P.
1025 (1908), where this court found that "willful negligence" contains a requirement that "there
must be a design, purpose, or intent to do wrong or to cause the injury." The relevance of Lacy
to the present case is dubious: willful negligence and the willful conduct specified in the KCPA
are not necessarily identical concepts. By adopting the Lacy definition, the majority is adding
the complex phrase "to do wrong or to cause injury" to the common understanding of intent or
willfulness. This addition avoids giving common meanings to common words and adds to the
language of the statute, violating our long-held principles of statutory interpretation and
contravening the obvious legislative intent of increasing protection for consumers.

Although I agree with the majority of this court that the facts of this case suffice to
support the jury's award under either reading of the statute, I disagree with the majority's
construction of the KCPA that increases the burden on consumers who seek to protect their
rights against misinformation from suppliers.

DAVIS, C.J., AND BILES, J. join the foregoing concurring and dissenting opinion.