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July 28, 2017 Digests

Posted By Patti Van Slyke, Monday, July 31, 2017

Kansas Supreme Court

Criminal 

constitutional law—criminal law—search and seizure—statutes
state v. bannon
sedgwick district court
court of appeals reversed and remanded to court of appeals for reconsideration
no. 112,212—july 28, 2017

FACTS: Wichita State University officers were told that Bannon always carried a handgun and had other guns and ammunition in his university apartment. Officers entered the restricted access apartment building, approached Bannon in a common area, and found a concealed handgun in his waistband. Bannon was charged with criminal carry of a firearm, K.S.A. 2012 Supp. 21-6302(a)(4). He filed a motion to dismiss, arguing he could not be convicted for possessing a concealed gun in his abode or within its curtilage. District court denied the motion. Bannon then filed motion to suppress the gun, arguing the warrantless patdown search was presumptively unreasonable, the stop-and-frisk exception under Terry v. Ohio, 392 U.S. 1 (1968), did not apply, and no probable cause supported his arrest. District judge denied the motion, finding in part the patdown was within the scope of Terry because officers had reasonable suspicion that Bannon was carrying a gun, and they were entitled to search to ensure officer safety. Bannon appealed the denial of both motions. Court of Appeals reversed in unpublished opinion. Panel assumed the officers had a reasonable suspicion that

Bannon was violating the law, but Terry’s second prong was not met because there was no evidence the officers were actually subjectively concerned for their safety or the safety of others. Panel did not address Bannon’s second issue regarding the motion to dismiss. Petition for review granted.

ISSUE:  Terry Stop - subjective vs. objective belief of officer

HELD:  Terry stops were examined, identifying conflicting federal and state cases regarding whether Terry’s second prong is a subjective or an objective test. Court holds the test is objective: whether an officer would reasonably suspect that the person stopped is armed and presently dangerous. Any testimony on the officer’s actual subjective belief or suspicion on that point is just one factor to consider in the totality of the circumstances. Panel incorrectly treated the lack of officer testimony as a dispositive negative determinant on the constitutionality of the Terry frisk. Court of Appeals is reversed and case is remanded for consideration under the correct test. If it determines on remand that the gun did not require suppression, then it must consider and decide Bannon’s second appellate issue.  

STATUTES:  K.S.A. 2012 Supp. 21-6302(a)(4); K.S.A. 22-2402

 

constitutional law—criminal procedure—sentencing—statutes
state v. Donaldson
sedgwick district court—affirmed; court of appeals—affirmed
no. 108,801—july 28, 2017

FACTS: Donaldson filed motion to challenge the retroactive application of the Kansas Offender Registration Act as violating the Ex Post Facto Clause. District court dismissed the action for lack of jurisdiction. Court of Appeals agreed in unpublished opinion. Petition for review granted.

ISSUE: Jurisdiction - motion to correct illegal sentence

HELD: Following holdings in State v. Wood, 306 Kan. 283 (2017), and State v. Reese, 306 Kan. 279 (2017), the lower courts had jurisdiction to consider Donaldson’s motion as a motion to correct an illegal sentence. But no meritorious claim was presented because the definition of an illegal sentence does not include a sentence that allegedly violates a constitutional provision. Outcome of the lower courts is affirmed as right for the wrong reason.

STATUTE: K.S.A. 22-3504, -4901 et seq.

 

constitutional law—criminal procedure—sentencing—statutes
state v. kilpatrick
reno district court—affirmed; court of appeals—affirmed
no. 111,054—july 28, 2017

FACTS: Kilpatrick filed motion to challenge the retroactive application of the Kansas Offender Registration Act as violating the Ex Post Facto Clause. District court dismissed the action for lack of jurisdiction. Court of Appeals agreed in unpublished opinion. Petition for review granted.

ISSUE: Jurisdiction - motion to correct illegal sentence

HELD: Following holdings in State v. Wood, 306 Kan. 283 (2017), and State v. Reese,  306 Kan. 279 (2017), the lower courts had jurisdiction to consider Kilpatrick’s motion as a motion to correct an illegal sentence. But no meritorious claim was presented because the definition of an illegal sentence does not include a sentence that allegedly violates a constitutional provision. Outcome of the lower courts is affirmed as right for the wrong reason.

STATUTES: K.S.A. 22-3504, -4901 et seq.; K.S.A. 2005 Supp. 22-4902

 

Kansas Court of Appeals

Civil 

ATTORNEY FEES—CONTRACTS—DAMAGES
HARDER V. FOSTER
LEAVENWORTH DISTRICT COURT—AFFIRMED IN PART—REVERSED IN PART—REMANDED
NO. 116,117—JULY 28, 2017

FACTS: Harder purchased a house from Foster. The house sat on land and had a lake and a dam. After the purchase concluded, Harder learned that the dam was illegal because it was constructed without a permit, and that obtaining a permit would require extensive repairs. Harder filed suit against Foster in 2013 alleging negligent misrepresentation and other claims related to the house purchase. A jury eventually found in Harder's favor. Citing language in the real estate purchase contract, the district court granted Harder's motion for attorney fees. There was a protracted process after that decision while the district court decided Foster's motion to alter or amend. Because of the delay, Harder filed a second motion for attorney fees to recoup funds spent litigating the attorney fee issue. That motion was denied, as the court found that the second set of attorney fees were not related to the real estate purchase contract. Harder filed a second suit against Foster in 2015, claiming that he fraudulently conveyed the proceeds of the purchase to his children so that he was insolvent after the judgment was issued. Foster passed away, but his estate paid to the district court funds sufficient to satisfy the judgment and attorney fees awarded to Harder. The district court believed that Harder had been satisfied and dismissed the 2015 action as moot.

ISSUES: (1) Error in denying the second motion for attorney fees from the 2013 case; (2) error to dismiss the 2015 case

HELD: Harder's first motion for attorney fees compensated her for expenses incurred through December 16, 2014. But Harder incurred costs far beyond that as the parties worked through the post-trial motions filed by Foster. All of those fees were related to Foster's default under the contract; as such, Harder should have been compensated. The merger doctrine does not deny Harder's second request for attorney fees, and she did not waive any of those fees. The 2015 action was not moot because Harder potentially had a cause of action under the Uniform Fraudulent Transfer Act and, under that Act, potentially had a right to attorney fees to any act related to the third-party claim. Harder was not entitled to punitive damages because punitive damages can only be collected from a wrong-doer, and Foster is now deceased.

STATUTE: K.S.A. 33-102, -201(c), -201(d), -201(g), -204, -204(a), -204(b), -207, -210 

COMITY—DIVORCE—JURISDICTION
WARD V. HAHN
OSBORNE DISTRICT COURT—REVERSED
NO. 116,654—JULY 28, 2017

FACTS: During divorce proceedings, a Nebraska court awarded Ward Hahn one-half interest in land in Osborne County. Ward subsequently petitioned a Kansas court to enforce the Nebraska order and to partition the land between herself and Hahn's parents. The district court noted that the Nebraska court did not have subject matter jurisdiction to directly transfer legal title of the Kansas land to Ward, but it partitioned the land anyway under the principle of comity. The Hahns appealed.

ISSUE: Did the Nebraska court have jurisdiction to direct a land transfer in Kansas

HELD: Courts of one state generally cannot directly affect the legal title to land situated in another state. The Nebraska court could have ordered Hahn, over whom it did have personal jurisdiction, to transfer ownership of the land to Ward. But that did not happen here. The Kansas district court's application of the principle of comity was an abuse of discretion because the Nebraska decree was a violation of Kansas public policy.

STATUTE: No statutes

Criminal

attorney and client—criminal law—evidence—statutes
state v. boatwright
sedgwick district court—reversed and remanded
no. 115,075—july 28, 2017

FACTS: During meeting with attorney to discuss State’s plea offer in criminal cases charging Boatwright with violating a protective order and stalking, Boatwright threatened to kill his ex-fiancé. After checking with supervisor and obtaining clearance from the disciplinary administrator, attorney disclosed Boatwright’s communication to sheriff’s office. Boatwright was acquitted on the protective order and stalking charges, but then was charged with criminal threat. At trial, the attorney and the detective to whom she reported the communication testified about Boatwright’s threats. Based on the disciplinary rule relating to client-lawyer relationship and confidentiality of information, KRPC 1.6, the district court admitted the statements over Boatwright’s repeated objections. Jury convicted Boatwright. He appealed, arguing his statement to his attorney was protected by the attorney-client privilege.

ISSUE: Attorney-client privilege

HELD: In determining the admissibility of Boatwright’s statement to his attorney, parties and district court failed to argue or address the statutory rule of evidence prescribing the attorney-client privilege, K.S.A. 2016 Supp. 60-426, which is different from the concept of client confidentiality under KRPC 1.6. District court erred in admitting Boatwright’s threat under KRPC 1.6(b), as it is not a rule of evidence and does not govern the admissibility of evidence at trial. Here, K.S.A. 2016 Supp. 60-426 barred the admission of Boatwright’s statement to his attorney. State’s argument for the crime-fraud exception is rejected because Boatwright’s meeting with his attorney was for the specific purpose of discussing State’s plea offer and not for seeking legal advice in order to enable or aid the commission or planning of a crime.

District court’s error was not harmless under facts in this case. Boatwright’s conviction is reversed.

STATUTE: K.S.A. 2016 Supp. 60-426, -426(a), -426(b)(1)

Tags:  Reno  Sedgwick 

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