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April 1, 2016, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

ORIGINAL PROCEEDING IN DISCIPLINE
In re SCOTT C. STOCKWELL
Reinstatement
NO. 108,929 – MARCH 28, 2016

FACTS: On March 1, 2013, the court suspended the petitioner, Scott C. Stockwell, from the practice of law for a period of one year. Stockwell was ordered to undergo a hearing under Supreme Court Rule 219 before a petition for reinstatement would be considered. Stockwell filed an amended petition for reinstatement on July 2, 2014.

HEARING PANEL: The hearing panel met in March 2016 and subsequently filed a report setting out the conduct which lead to Stockwell's suspension, a summary of the evidence presented and its findings and recommendations. The panel unanimously recommended that Stockwell's license be reinstated, subject to practice supervision as detailed in the supervision plan.

HELD: The court accepted the findings and recommendations, and granted the petition for reinstatement, subject to practice supervision.

Kansas Supreme Court – Criminal

confrontation of witnesses; constitutional law; criminal procedure; harmless error; hearsay evidence; jury instructions
State v. Logsdon
reno district court – convictions affirmed, sentence vacated, remanded
No. 110,415 – April 1, 2016

FACTS: Logsdon convicted of first-degree murder, felony murder, conspiracy to commit first-degree murder, conspiracy to commit aggravated robbery, aggravated burglary, criminal possession of a firearm, and aggravated intimidation of a witness. Criminal charges related to death of Heckel who was not the intended victim of a conspiracy by Logsdon, Craig, and others to kill another person. A hard 50 life sentence was imposed. On appeal, Logsdon claimed there was insufficient credible evidence supported the convictions. Second, he claimed the district court erred in denying motions for mistrial that alleged the admission of inadmissible hearsay evidence and violation of confrontation clause, including witness testimony of Craig’s statements where Craig subsequently refused to testify. He also claimed the district court erred in instructing the jury on aiding and abetting, and that his hard 50 life sentence was unconstitutional.

ISSUES: (1) Sufficiency of the evidence, (2) Motions for mistrial, (3) Jury instruction, (4) Hard 50 life sentence

HELD: Evidence in case is detailed. While not overwhelming against Logsdon, the evidence viewed in light most favorable to the State and with deference to jury’s credibility conclusions is sufficient to support his convictions.

Appellate review of evidentiary issues underlying Logsdon’s motions for mistrial are limited to instances of witness testimony that were subject to timely trial objection and that were adequately briefed. Coconspirator hearsay exception is applied. Error resulting from any assumed error in admission of hearsay evidence, and assumed violation of Confrontation Clause, was harmless in this case. District court did not abuse its discretion in denying both motions for mistrial.

No appellate review of argument regarding aiding and abetting jury instruction. Logsdon invited any error by specifically requesting the instruction.

Logsdon’s hard 50 life sentence was illegally imposed in light of Alleyne v. United States, 570 U.S. __, 133 S.Ct. 2151 (2013), State v. Soto, 299 Kan. 102 (2014), and State v. Warren, 302 Kan. 601 (2015). State’s suggestion for nunc pro tunc or amended journal entry of sentencing is rejected. Remanded for resentencing.

STATUTES: K.S.A. 2015 Supp. 21-6620, 22-3414(3), 60-261, -460, -460(a), -460(i)(2), -460(g); K.S.A. 2012 Supp. 21-6620; K.S.A. 22-3423, -3423(1)(c), 60-404, -445, -2105

Kansas Court of Appeals – Civil

APPEAL AND ERROR; EVIDENCE; PHYSICIANS AND SURGEONS; TORTS
BEREAL V. BAJAJ, M.D.
SEDGWICK DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, REMANDED WITH DIRECTIONS
NO. 111,954 – APRIL 1, 2016

FACTS: Bereal was permanently injured during a heart catheterization procedure. The defendants did not dispute that the injury occurred, but blamed it on a defect in the medical device that was used during the procedure. The manufacturer had been a party to the case, but was dismissed after a settlement was reached with Bereal. After a lengthy trial, the jury found in favor of the defendants. On appeal, Bereal asked the court to review several of the district court's decisions related to expert witness testimony.

ISSUES: (1) Whether exclusion of Bereal's rebuttal expert was erroneous; (2) Whether it was error to allow an expert to testify outside of the scope of his disclosed pretrial report

HELD: Litigants are required by statute to disclose their experts in a time and sequence ordered by the court. Rebuttal expert evidence is appropriate if it "explains, refutes, counteracts, or disproves the evidence put on by the other party,” even if it also bolsters the case-in-chief. A rebuttal expert witness need not always be disclosed prior to trial, since a litigant is not required to anticipate the other side's theory of the case. For those reasons, the district court erred when it excluded testimony from Bereal's expert rebuttal witness. An expert may testify on facts made known to the expert at trial if that testimony is within the scope of the expert's special knowledge, skill, and experience. This may occur even if the testimony was not specifically mentioned in the pretrial report.

STATUTES: K.S.A. 2015 Supp. 60-226(b)(6)(C)(ii); K.S.A. 60-404, -456(b); K.S.A. 60-3301

Kansas Court of Appeals – Civil

APPEAL AND ERROR; DAMAGES; DISCOVERY; SUMMARY JUDGMENT
WATCO COMPANIES, INC. V. CAMPBELL AND STANDLEE
CRAWFORD DISTRICT COURT – AFFIRMED
NO. 113,156 – APRIL 1, 2016

FACTS: The underlying tort case arose after a collision between a truck and a train, where the train conductor was injured. The case was dismissed from federal court and Watco, doing business as a railroad, filed suit in state district court for comparative implied indemnity. Watco settled with the train conductor, but the settlement agreement required Watco to pay part of the judgment in exchange for the conductor's agreement not to execute on the balance unless or until he was unable to recover from the other defendants. After the district court granted the defendants' motion for summary judgment, in part finding that Watco came in to the suit with unclean hands, Watco appealed.

ISSUE: Whether the District Court Erred by Granting Summary Judgment on the Basis of Watco's Unclean Hands

HELD: When weighing a summary judgment motion, the district court may consider evidence produced in discovery as well as other documents on file. The cause of action brought by Watco was solely for comparative implied indemnity for damages to both its train and its employee, which it was authorized to do under FELA. And because the federal court never compared fault, it was proper to bring that action in state court. Comparative implied indemnity is an equitable remedy, meaning that a court may refuse to apply it if a party has acted "fraudulently, illegally, or unconscionably." But because Watco set up an agreement where it limited its financial exposure, it sought to recover contributions for damages that it knew it would never have to pay.

STATUTES: K.S.A. 2015 Supp. 60-256(c)(2), -258a; K.S.A. 60-258a, -464, -513, -518

Kansas Court of Appeals – Civil

ADMINISTRATIVE LAW; EVIDENCE
PFEIFER V. KANSAS DEPARTMENT OF REVENUE
ELLIS DISTRICT COURT – AFFIRMED
NO. 112,705 – APRIL 1, 2016

FACTS: Pfeifer's driver's license was suspended after she refused to submit to a breath or blood test that would have determined the presence of alcohol or drugs in her system. On appeal, Pfeifer argued that the district court improperly admitted into evidence the signed and completed "Officer's Certification and Notice of Suspension" (the DC-27 Form) because the arresting officer did not testify at trial. The DC-27 form established the reasonable grounds that the officer relied on when asking for the test.

ISSUE: Whether, in proceedings under the Kansas implied consent law, the arresting officer must appear to testify in person

HELD: The plain language of K.S.A. 2015 Supp. 8-1002(b) established that the legislature intended for an officer's properly completed DC-27 form to be admissible as evidence in all administrative hearings and trials de novo under the Kansas Implied Consent Law. The certifying officer need not be present to testify.

STATUTES: K.S.A. 2015 Supp. 8-259, -1001, -1002, -1020; K.S.A. 77-601

Kansas Court of Appeals – Civil

EMPLOYMENT SECURITY LAW; VENUE
RHODENBAUGH V. KANSAS EMPLOYMENT SECURITY BOARD OF REVIEW AND MCPHERSON HOSPITAL
SHAWNEE DISTRICT COURT – AFFIRMED
NO. 114,134 – APRIL 1, 2016

FACTS: Rhodenbaugh was employed by the hospital as an emergency desk clerk. After she was hired, the hospital changed its policy and required all employees to receive a flu vaccination, with exemptions for medical and religious reasons. Rhodenbaugh refused to get a shot and failed to provide a letter from her physician that proved a medical exemption. Based on this refusal, Rhodenbaugh was terminated from her employment. The hospital appealed the award of unemployment benefits to the Kansas Employment Security Board of Review (Board), arguing that Rhodenbaugh was terminated for cause. The Board agreed. Rhodenbaugh appealed to the McPherson County District Court, and the Board moved to change venue to Shawnee County. That motion was granted, and the Shawnee County District Court affirmed the Board's decision. Rhodenbaugh appeals.

ISSUES: (1) Whether the transfer of venue was proper and (2) Whether the refusal to get a flu shot constituted job-related misconduct

HELD: Appeals for judicial review of an agency action are governed by the Kansas Judicial Review Act (KJRA). Venue is proper in the "county in which the order is entered." If venue is appropriate in more than one county, the district court should give weight to the plaintiff's right to choose venue. In this case, that analysis was not done, and the order to transfer venue was erroneous. However, that error was harmless. Because it was undisputed that Rhodenbaugh knew about the hospital safety rule, and because she failed to meet one of the listed exemptions, the district court correctly determined that she was terminated for cause.

STATUTES: K.S.A. 2015 Supp. 44-706(b), 77-603(a), -621; K.S.A. 2014 Supp. 44-706(b); K.S.A. 60-609(a), 72-5209(b), 77-609(b), -623

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