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October 20, 2017 Digests

Posted By Administration, Monday, October 23, 2017

Kansas Supreme Court

 

ATTORNEY DISCIPLINE

 

ORDER OF PROBATION
IN THE MATTER OF KURT L. JAMES
NO. 117,517—OCTOBER 20, 2017

 

FACTS: A hearing panel determined that James violated KRPC 1.3 (diligence), 1.4(a) (communication), 1.7(a)(2) (conflict of interest), 1.15(a) and (b) (safekeeping property), 1.16(a) (declining representation), 3.2 (expediting litigation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The complaints arose after James took on several clients with the promise to file post-divorce modification motions but failed to do so.

HEARING PANEL: The hearing panel concluded that James' lack of communication and diligence harmed his clients. James had a prior disciplinary record, but there was no evidence of dishonest motive, and James made his clients whole through refunds. Because of that fact, the disciplinary administrator recommended that James be suspended for 1 year but that the suspension be stayed while James served a period of probation. The hearing panel agreed, with the caution that James should serve a 2-year suspension, with that order stayed during a 3-year probation term.

HELD: The court adopted the hearing panel's findings and conclusions. After reviewing the record, the court ordered that James be suspended for 1 year, with the imposition of the suspension stayed pending successful completion of a 3-year period of probation.

 

 

Kansas Court of Appeals

 

CIVIL

 

HEARSAY—INSURANCE—SUMMARY JUDGMENT
ALLEN V. MARYSVILLE MUTUAL INSURANCE CO.
MONTGOMERY DISTRICT COURT—REVERSED AND REMANDED
NO. 116,888—OCTOBER 20, 2017

FACTS: The Allens owned a rental home in Montgomery County. While their tenants were away from home, a two-state police chase ended at the property. Two of the suspects were quickly apprehended but one eluded capture. That man eventually ended up inside the home owned by the Allens. It is unclear how he gained entry, it was either through an unlocked door or by breaking a window. While officers attempted to have the suspect surrender, both the Allens and the tenants gave permission for officers to enter the home. But because the suspect was accused of attempted murder, the officers felt like that strategy was too dangerous. Instead, law enforcement opted to use tear gas and pepper spray to drive the suspect from the home. In addition, in an attempt to be careful, officers also received a search warrant for the home. The tear gas canisters fired into the home caused extensive damage to the property, but the suspect was captured without further incident. The repair estimates obtained by the Allens exceeded the insured value of the home. Marysville, their insurance company, denied the claim because of a policy exclusion that denied coverage for a "loss which results from order of civil authority." The district court found that since law enforcement did obtain a search warrant, the damage was covered by the exclusion. The district court granted Marysville's motion for summary judgment, and the Allens appealed.

ISSUE: Whether the policy exclusion applied to this loss

HELD: The district court erred by finding that the order-of-civil-authority exclusion applied. Officers here did not need a warrant to enter the Allens' property; there was clearly probable cause that the suspect had committed attempted murder, and the officers knew that the suspect was inside the home. The search warrant was obtained in an effort to forestall an expected motion to suppress by the suspect. The damage caused to the residence had nothing to do with the search warrant. The Allens believe that Marysville was obligated to reimburse them under a policy provision which provided coverage for damage caused by vandalism, since the extensive damage that occurred was a proximate cause of the suspect's entry into the house. But there is no clear evidence to show whether the suspect entered the home by breaking a window (covered vandalism) or by walking through an unlocked door (not covered). More factual findings are necessary, so the case is remanded.

STATUTES: K.S.A. 2016 Supp. 60-256(e); K.S.A. 22-2401(c), -2405(3)

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