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November 17, 2017 Digests

Posted By Administration, Monday, November 20, 2017

Kansas Supreme Court

Attorney Discipline

ORDER OF PROBATION
IN THE MATTER OF MATTHEW B. WORKS
NO. 117,607—NOVEMBER 17, 2017

FACTS: A hearing panel determined that Works violated KRPC 1.2(c) (scope of representation), 1.3 (diligence), 1.4(a) (communication), 1.16(d) (termination of representation), and 3.2 (expediting litigation). The violations occurred after Works was appointed to represent clients on appeal but failed to docket the cases

HEARING PANEL: When determining the appropriate discipline, the hearing panel noted that Works was disciplined on five prior occasions. But there were a number of mitigating factors, including Works' mental health issues and a traumatic house fire. The disciplinary administrator recommended that Works be placed on probation with an underlying suspension of 12 months to two years. After noting that Works provided a workable, substantial probation plan, the hearing panel determined that a term of probation was in the best interests of the legal profession and the general public.

HELD: The court admitted the hearing panel's final hearing report. A majority of the court agreed with the hearing panel that Works should be suspended for two years, with imposition of that discipline stayed and a three-year term of probation. A minority of the court would have imposed a harsher sanction, including a period of immediate suspension.

Kansas Court of Appeals

Civil

ARBITRATION—CONTRACTS—JURISDICTION—MEDIATION
WASINGER V. ROMAN CATHOLIC DIOCESE OF SALINA
RUSSELL DISTRICT COURT—REVERSED AND REMANDED
NO. 116,764—NOVEMBER 17, 2017

FACTS: Wasinger was hired to design and construct a parish rectory for a church in Russell. The contract included a requirement that the parties submit to "binding mediation" if disputes arose during the construction process. A dispute arose early during the process. Under the terms of the contract, the parties went to mediation and received a decision. Wasinger did not agree with that decision, and as a result he filed a mechanic's lien on the property. Wasinger followed up by filing a motion to foreclose on the lien. The Diocese filed a motion for summary judgment in which it claimed that the clause requiring "binding mediation" was actually an arbitration provision, meaning that the mediator's decision was binding. The district court granted the motion and this appeal followed.

ISSUES: (1) Whether mediator's decision was binding; (2) lack of cross-appeal

HELD: Kansas case law does not recognize "binding mediation." The mediation set out in the contract was a voluntary, out-of-court alternate dispute resolution procedure. By statute, a mediator in Kansas has no decision-making authority. It was a mistake to use the terms "mediation" and "arbitration" interchangeably. Under the plain language of the contract, Wasinger was free to seek judicial resolution of issues not resolved by mediation. The Diocese did not cross-appeal the district court's ruling on arbitration which means this issue cannot be considered on appeal. And the argument fails on the merits because the district court erred when finding that interstate commerce was implicated.

STATUTE: K.S.A. 5-405(a), -405(b), -405(c), -502(e), -502(f), -502(g), -502(h), -502(m)

Criminal

MOOTNESS—PROBATION—SENTENCING
STATE V. ALLEN
GEARY DISTRICT COURT - VACATED
NO. 116,886—NOVEMBER 17, 2017

FACTS: Allen was serving an 18-month term of probation when he committed two new offenses. He served a 30-day term in custody for violating his probation and received a sentence of probation for the new offenses. Allen then violated his probation for a second time. A judge in the first case imposed a 60-day jail sanction. A different judge in the second case also imposed a 60-day jail sanction to be served consecutively to the first sanction. Allen objected but the district court overruled the objection and Allen appealed.

ISSUE: Ability to sentence terms consecutively

HELD: K.S.A. 2016 Supp. 22-3716(c)(10) requires that any intermediate sanctions must be imposed concurrently. There is nothing in the statute suggesting that this language does not apply to cases heard before different judges. Although Allen has served his entire sentence, this case is capable of repetition and is of public importance so it is not moot.

STATUTE: K.S.A. 2016 Supp. 22-3716(c)(1)(B), -3716(c)(1)(C), -3716(c)(1)(D), -3716(c)(10), -3716(c)(11)

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