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FEHLHAFER v. STATE12/13/1996
The Kansas Department of Revenue (KDR) suspended the driving privileges of Alan Fehlhafer due to his second DUI conviction. Fehlhafer filed a chapter 60 suit to enjoin the suspension, alleging it violated his plea agreement. The trial court, relying on Dickerson v. Kansas Dept. of Revenue, 253 Kan. 843, 863 P.2d 364 (1993), ruled in Fehlhafer's favor.
KDR appeals and we reverse.
The facts are not disputed. Fehlhafer pled no contest to the DUI charge pursuant to a plea agreement in which the prosecutor promised that Fehlhafer's driving privileges would not be suspended; the trial court approved the plea agreement.
Fehlhafer filed an action in Leavenworth County to enjoin KDR's suspension of his driving privileges. KDR moved to dismiss or to transfer venue to Shawnee County. The trial court denied the motion. At trial, the assistant county attorney who entered into the plea agreement testified he knew KDR had authority to suspend a license, but believed he had authority to bargain away that suspension.
The trial court ultimately ruled that while the prosecutor should not have bargained away the suspension, KDR was nonetheless bound by the plea agreement under Dickerson.
K.S.A. 60-602 governs venue in this case. The statute provides:
"Actions for the following causes must be brought in the county in which the cause, or some part thereof arose:
. . . .
"(2) An action against a public officer for an act done or threatened to be done by such officer by virtue or under color of his or her office, or for neglect of his or her official duties."
In Huerter v. Hassig, 175 Kan. 781, 267 P.2d 532 (1954), the sole issue was whether venue was proper in Nemaha County (where suit was filed) or in Pratt County, where the official action of the fish and game commission was taken. The court held that venue was proper in Pratt County, where the official action of the commission was taken. 175 Kan. at 785.
In Alliance Life Ins. Co. v. Ulysses Volunteer Fireman's Relief Ass'n, 215 Kan. 937, 939, 529 P.2d 171 (1974), the court stated:
"We take it as well settled . . . that the mere `making' of a contract, standing alone, does not give rise to a cause of action; there must in addition be a breach. [Citations omitted.] . . . he place of making a contract is irrelevant to the issue of where a cause of action arises for its breach; the controlling place is that of the breach, i.e., the place where the obligor failed to fulfill his obligation."
In the present case, while the plea agreement was made in Leavenworth County, the alleged breach — the suspension of Fehlhafer's license — occurred in Shawnee County. Furthermore, the suspension
of the license was the only official action with which plaintiff took issue. Applying Huerter and Alliance, venue was proper in Shawnee County and not Leavenworth County.
The remaining question is whether we can deem the trial court's venue ruling as harmless error and address the merits of KDR's appeal. In Alliance, the court proceeded to the merits of the appeal, holding that " lthough a party's right to litigate in a proper forum is a valuable one, the law does not require pointless redetermination of legal issues where the results may be readily foreseen." 215 Kan. at 942.
KDR asks that we not address the merits. Instead, we will address only the merits of the appeal dealing with the enforceability of the plea agreement.
The trial court ruled that under Dickerson, KDR was bound by the plea agreement, even though the prosecutor nev
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