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June 5, 2015, Appellate Court Digests
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Kansas Supreme Court – Civil

CONTRACTS, CATTLE GRAZING, AND STANDING

PETERSON ET AL. V. FERRELL D/B/A 4L GRAZING LLC

BUTLER DISTRICT COURT – AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS

COURT OF APPEALS – AFFIRMED
NO. 107,359 – JUNE 5, 2015

 

FACTS: The plaintiffs in this case—Peterson, Eilert, and Hlad—sued Ferrell, doing business as 4L Grazing LLC (Ferrell), alleging Ferrell breached numerous grazing contracts while the plaintiffs' cattle were supposed to be calving, fattening, and breeding on Ferrell's pastures during 2008. The plaintiffs claimed that Ferrell failed in his duty to adequately feed, care for, and supervise their cattle and caused multiple forms of damages. The matter proceeded to a bench trial, and the district court found Ferrell had breached the grazing contracts. The court awarded a total of $240,416.90 of damages to compensate the plaintiffs for the reduced value of the unexpected open cows, the lost expectation value of calves never conceived, the costs associated with rehabilitating the body condition of the bulls and cows, the lost value of dead and salvaged bulls, and the reduced value of stocker cattle that did not put on expected weight. On appeal, the Court of Appeals found that Peterson did not have standing and dismissed his claims. The panel affirmed the district court's finding of a breach of the grazing contracts and affirmed the district court's damage award in most respects. Peterson v. Ferrell, No. 107,359, 2012 WL 5869622.

 

ISSUES: (1) Contracts, (2) cattle grazing, and (3) standing

 

HELD: Court held that because Peterson failed to come forward with any evidence that he personally owned any of the cattle in question, he cannot meet his burden to demonstrate a cognizable injury personal to him. Court found the Court of Appeals correctly found that Peterson had no standing. Next, Court held that after a complete review of the evidence presented below, the district court's finding that Ferrell breached these duties is supported by substantial competent evidence. There was evidence given at trial that the animals were not given nutrition adequate to their needs, that their grazing was not managed to optimize grass intake, and that their health was not adequately monitored or treated. As far as damages, the district court did not error in limiting the damages for unexpected open cows to the difference in value between a bred cow and an open cow without also awarding the lost expectation value of calves never conceived and also the value of the lost bulls was the cost of virgin 2-year-old bulls. Court remanded to determine the exact amount of damages properly attributable to the cattle owned by Eilert and Hlad individually and to limit and itemize the award accordingly.

 

STATUTES: K.S.A. 17-7673; K.S.A. 20-3018; K.S.A. 56a-201; and K.S.A. 60-2101

 

CONTRACTS AND INSURANCE COVERAGE

WILES V. AMERICAN FAMILY LIFE ASSURANCE COMPANY OF COLUMBUS

WYANDOTTE DISTRICT COURT – AFFIRMED IN PART AND REVERSED IN PART

COURT OF APPEALS – REVERSED

NO. 106,661 – JUNE 5, 2015

 

FACTS: After suffering severe injuries from an automobile accident, Wiles filed a claim for benefits under a hospital intensive care policy issued to him by the American Family Life Assurance Company of Columbus (AFLAC). AFLAC denied the claim under the policy's intoxication exclusion, relying in large part on a hospital toxicology report indicating that Wiles had a blood alcohol concentration of 0.25 within two hours of the accident. Consequently, Wiles filed suit against AFLAC, seeking coverage under the policy. After excluding the hospital toxicology report, the district court found that AFLAC failed to prove that Wiles' accident was in consequence of his intoxication and therefore determined that Wiles' claim for benefits was covered under the policy. The district court then granted Wiles' motion for attorney fees, finding that AFLAC's denial of coverage was without just cause or excuse. AFLAC appealed, and the Court of Appeals reversed the district court's findings and remanded the matter for a new trial.

 

ISSUES: (1) Contracts and (2) insurance coverage

 

HELD: Court agreed with AFLAC that the Court of Appeals erred in determining AFLAC had satisfied the appropriate foundation requirements to admit the hospital's toxicology report. However, Court held the district court erred in its determination that AFLAC's denial of coverage was without just cause or excuse and reversed that portion of the district court's judgment awarding attorney fees to Wiles under K.S.A. 40-256.

 

STATUTES: K.S.A. 20-3018; K.S.A. 40-2203; and K.S.A. 60-256,-419, -460, -2101

Kansas Supreme Court – Criminal

STATE V. DULL

SEDGWICK DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, AND REMANDED

COURT OF APPEALS – REVERSED

NO. 106,437 – JUNE 5, 2015

 

FACTS: Dull convicted on guilty plea to burglary and misdemeanor theft, offenses committed when he was 18. In another case in which he was prosecuted as an adult, he was convicted on guilty plea to aggravated indecent liberties with a child, committed when he was 17. District court consolidated the cases, ordered consecutive sentences, and as required by statute for aggravated indecent liberties conviction, ordered lifetime post-release supervision. Dull appealed, arguing for first time that mandatory lifetime post-release supervision for juveniles categorically constitutes cruel and unusual punishment under U.S. and Kansas constitutions when imposed on juveniles who have committed and are later convicted of similar sex offenses. He also challenged the imposition of consecutive sentences. In unpublished opinion, Court of Appeals affirmed, applying analysis in Graham v. Florida, 560 U.S. 66 (2010), and relying on State v. Mossman, 294 Kan. 901 (2012), and State v. Cameron, 294 Kan. 884 (2012), cases upholding constitutionality of mandatory lifetime post-release supervision for first-time adults convicted of aggravated indecent liberties. Panel also found it lacked jurisdiction under K.S.A. 21-4721(c)(1) to consider Dull’s challenge to imposition of consecutive sentences. Dull’s petition for review on both issues granted.

 

ISSUES: (1) Mandatory lifetime post-release supervision for juveniles and (2) consecutive sentences

 

HELD: Dull’s Eighth Amendment categorical proportionality challenge is properly before the court. Relevant Eighth Amendment case law is reviewed. No Kansas cases have addressed issue raised in this appeal. While mandatory lifetime post-release supervision has been found to be constitutional for adults, factors that result in diminished culpability for juveniles all diminish the penological goals of lifetime supervision for juvenile sex offenders. Court holds that mandatory lifetime post-release supervision is categorically unconstitutional under Graham when imposed on a juvenile who committed and was later convicted of aggravated indecent liberties. The mandatory lifetime post-release supervision portion of Dull’s sentence is vacated.

 

District court imposed departure sentence for Dull’s aggravated indecent liberties conviction. Applying reasoning of State v. Ross, 295 Kan. 1126 (2012), K.S.A. 21-4721(c)(1) does not prevent a challenge to district court’s decision to impose consecutive sentences in a multiple conviction case involving a presumptive and departure sentence. Panel’s dismissal of this issue for lack of jurisdiction was erroneous, but district court’s imposition of consecutive sentences is affirmed under facts in this case.

 

STATUTES: K.S.A. 2014 Supp. 22-3717(d)(1)(G), -3717(d)(5)(C); K.S.A. 2014 Supp. 38-2347; K.S.A. 20-3018(b); K.S.A. 21-3504(a)(3)(A), -3504(c), -4608(a), -4720(b), -4720(b)(2), -4720(b)(7), -4721, -4721(a), -4721(c), -4721(c)(1); K.S.A. 60-1507, -2101(b); K.S.A. 2010 Supp. 21-4704(e)(2); K.S.A. 2010 Supp. 75-5217(c); K.S.A. 2009 Supp. 75-5217(c); and K.S.A. 2007 Supp. 38-2347

 

STATE V. RODRIGUEZ

JOHNSON DISTRICT COURT – AFFIRMED

COURT OF APPEALS – AFFIRMED
NO. 106,731 – JUNE 5, 2015

 

FACTS: Jury convicted Rodriguez of rape, aggravated sodomy, and criminal restraint of victim Party victim was in house Vallejos was watching for relatives. Conviction relied on victim’s testimony that she fell asleep and awoke being sexually assaulted by Rodriguez. Rodriguez maintained that someone else raped the victim. But for mulitplicitous criminal restraint conviction, Court of Appeals in unpublished opinion affirmed the convictions. Rodriguez filed K.S.A. 60-1507 motion, claiming ineffective assistance of trial counsel in failing to request DNA testing of hair found on bed where rape occurred, and trial forensics had excluded Rodriguez as source of that hair. In unpublished opinion Court of Appeals affirmed district court’s denial of relief. Rodriguez also filed post-conviction motion for DNA testing under K.S.A. 21-2512, requesting testing of samples collected from Vallejos but never analyzed. District court denied the motion, finding additional testing would not produce the noncumulative, exculpatory evidence required by K.S.A. 21-2512(c). In unpublished opinion, Court of Appeals reversed and remanded. After district court ordered additional testing to compare Vallejos’ samples to samples found at crime scene, analyst confirmed that neither Rodriguez’ nor victim’s DNA was present on any bedroom item, but Vallejos’ DNA was on pillowcase. District court denied Rodriguez’ motion for a new trial, finding this DNA evidence was unlikely to yield different outcome because pillowcase DNA could not be linked to victim. Court of Appeals affirmed in unpublished opinion. Rodriguez petitioned for review, claiming district court failed to make sufficient findings as required by Supreme Court Rule 183(j), and district court abused its discretion in denying motion for new trial. Review granted.

 

ISSUES: (1) District court’s findings of fact and conclusions of law and (2) motion for new trial

 

HELD: Rule 183(j) applies to K.S.A. 60-1507 motions, not motions for new trial. Under facts in this case, the more general Supreme Court Rule 165 was satisfied by district court’s findings and conclusions of law, including the district court’s holding that the new DNA evidence was "unlikely” to yield a different trial result.

 

The new DNA evidence is favorable, but under facts in case, there is no reasonable probability a jury would have reached a different outcome had it considered the testing results. District court did not abuse its discretion in denying Rodriguez’ motion for a new trial.

 

STATUTES: K.S.A. 2014 Supp. 21-2512(f), -2512(f)(2), -2512(f)(2)(B)(iv); K.S.A. 2014 Supp. 60-252; K.S.A. 20-3018; K.S.A. 21-2512, -2512(c); and K.S.A. 60-1507, -2101(b)

Kansas Court of Appeals – Civil

DIVORCE AND CHILD SUPPORT

IN RE MARRIAGE OF SKOCZEK

JOHNSON DISTRICT COURT – AFFIRMED

NO. 112,057 – JUNE 5, 2015

 

FACTS: Steve Skoczek and Marsha Lynn Skoczek were married in 1997. They have four minor children. In 2013, Marsha filed for divorce. Sometime later, on their own, Steve and Marsha resolved all issues except maintenance and child support. Their separation agreement provided that they would have joint legal custody of the children and they agreed to a 2-2-3 parenting plan. The district court approved the plan and incorporated the parties' separation agreement and parenting plan into the divorce decree filed in May 2014. The court found that it was in the children's best interests that Steve and Marsha receive joint custody of the children.

 

The district court then tried the issues of maintenance and child support. After applying a parenting time adjustment, the district court ordered Steve to pay Marsha $1,700 per month child support. Steve contends the court erred when it adjusted the guidelines child support figure for his parenting time and he is paying too much for child support.

 

ISSUES: (1) Divorce and (2) child support

 

HELD: Court held the district court applied the correct legal standard, and its factual determinations had legally sufficient support in the evidence. Court stated that because it does not reweigh that evidence on appeal, it concluded that others would indeed come to the same conclusion and, thus, it cannot be an abuse of discretion.

 

STATUTES: No statutes cited.

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