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|June 12, 2015, Appellate Court Digests|
Kansas Supreme Court – Attorney Discipline
IN RE JAMES T. BARKER II
ORIGINAL PROCEEDINGS IN DISCIPLINE
NO. 112,967 – JUNE 12, 2015
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Barker, of Blue Springs, Missouri, an attorney admitted to the practice of law in Kansas in 1995. Barker's ethical problems involved his practice of law at a time when his license was suspended for failure to pay annual registration fees and that the location of his office on his letterhead was actually a UPS store.
DISCIPLINARY ADMINISTRATOR: On July 24, 2014, the office of the disciplinary administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent did not file an answer. The disciplinary administrator recommended indefinite suspension.
HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 28, 2014, where the respondent did not appear. The hearing panel determined that respondent violated KRPC 5.5(a) (2014 Kan. Ct. R. Annot. 650) (unauthorized practice of law); 7.1 (2014 Kan. Ct. R. Annot. 662) (communications concerning a lawyer's services); 7.5(a) (2014 Kan. Ct. R. Annot. 669) (firm names and letterhead); 8.1(b) (2014 Kan. Ct. R. Annot. 670) (failure to respond to lawful demand for information from disciplinary authority); 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to the administration of justice); Kansas Supreme Court Rule 207(b) (2014 Kan. Ct. R. Annot. 342) (failure to cooperate in disciplinary investigation); Kansas Supreme Court Rule 208(c) (2014 Kan. Ct. R. Annot. 356) (failure to notify Clerk of the Appellate Courts of change of address); and Kansas Supreme Court Rule 218(a) (2014 Kan. Ct. R. Annot. 414) (notification of clients upon suspension). The hearing panel recommended indefinite suspension.
HELD: Court found that Barker failed to answer the complaint or appear at his disciplinary hearing. Court stated that when a respondent fails to appear before the Court when facing recommendations of indefinite suspension, a sanction greater than that recommended by the disciplinary administrator or panel, even up to disbarment, may be warranted. Certainly, the lack of an appearance at a hearing before this court qualifies as an additional aggravator of these circumstances under consideration. Court also noted that had the respondent been candid with the district court in December 2013 and followed through with the opportunity to clarify his licensing status at that time, this matter would not likely be before the Court at all today. Court held indefinite suspension to be appropriate in this case.
IN RE JAMES A. CLINE
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 113,191 – JUNE 12, 2015
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Cline, of Wichita, an attorney admitted to the practice of law in Kansas in 1990. Cline had been reinstated to the practice of law in 2011 and his current ethical issues involve his representation of a workers compensation/personal injury client.
DISCIPLINARY ADMINISTRATOR: On July 2, 2014, the office of the disciplinary administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on July 30, 2014. Respondent also entered into a stipulation regarding rule violations. Disciplinary administrator recommended indefinite suspension.
HEARING PANEL: A consolidated hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 17, 2014, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.4(a) (2014 Kan. Ct. R. Annot. 495) (communication); and 8.4(d) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct prejudicial to the administration of justice). Respondent entered into stipulations regarding the rule violations. Hearing panel recommended suspension for two years.
HELD: Court found the evidence and stipulation established by clear and convincing evidence the charged misconduct. Court reiterated the sanctions imposed on Cline in 2009. Court acknowledged the compliance effort the respondent made at that time, which included an affidavit in which he swore: "I believe I am fully capable of practicing law without repeating the mistakes of my past." Court acknowledged, however, that respondent currently appeared on a complaint very similar to the ones leading to his 2009 suspension. Court adopted the disciplinary administrator's recommended sanction of indefinite suspension.
IN RE LARRY D. EHRLICH
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 113,200 – JUNE 12, 2015
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, Ehrlich, of Wichita, an attorney admitted to the practice of law in Kansas in 1974. Ehrlich's ethical issues involve his representation of a client in a workers compensation/personal injury case and his involvement with Cline during a time when Cline was suspended from the practice of law.
DISCIPLINARY ADMINISTRATOR: On July 2, 2014, the office of the disciplinary administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent filed an answer on July 18, 2014. Respondent also entered into a stipulation regarding rule violations. The disciplinary administrator recommended that Ehrlich's punishment be published censured.
HEARING PANEL: A consolidated hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on September 17, 2014, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 1.4(a) (2014 Kan. Ct. R. Annot. 495) (communication); and 5.3 (2014 Kan. Ct. R. Annot. 646) (responsibilities regarding nonlawyer assistance). The hearing panel recommended that Ehrlich's punishment be published censured.
HELD: Court found the evidence before the hearing panel established by clear and convincing evidence of the charged misconduct. Court found published censure was appropriate. However, a minority of the Court would impose a more severe discipline.
IN RE RUSTIN K. RANKING
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 113,235 – JUNE 12, 2015
FACTS: This is an attorney discipline proceeding against Rankin, of Fredonia, an attorney admitted to the practice of law in Kansas in 1999. Rankin's ethical issues involve his business relationship with a client and his conversion of money from the client.
DISCIPLINARY ADMINISTRATOR: On August 12, 2014, the office of the disciplinary administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). The respondent answered on September 4, 2014, admitting some allegations and denying others. Disciplinary administrator recommended Rankin be disbarred.
HEARING PANEL: A panel of the Kansas Board for Discipline of Attorneys held a hearing on October 29 and 30, 2014, at which the respondent appeared in person and through counsel. The hearing panel determined the respondent violated KRPC 1.5(a) and (b) (2014 Kan. Ct. R. Annot. 515) (fees); 1.7(a)(2) (2014 Kan. Ct. R. Annot. 531) (conflict of interest); 1.8(a) (2014 Kan. Ct. R. Annot. 542) (conflict of interest); 1.15(a) (2014 Kan. Ct. R. Annot. 567) (safekeeping property); and 8.4(c) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct involving misrepresentation) and (g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The hearing panel recommended Rankin be indefinitely suspended.
HELD: Court found the evidence before the hearing panel established by clear and convincing evidence the charged misconduct. After careful consideration, a majority of the court agreed with the office of disciplinary administrator that disbarment is the appropriate sanction. The facts, which are undisputed before this court, show a flagrant pattern of misrepresentation, conflict of interest, and exploitation of a vulnerable client over a number of years, all of which resulted in a substantial loss of the client's property. This is not simply a matter of "atrocious" record keeping, as the respondent characterized it. A minority of the court would follow the hearing panel's recommendation of indefinite suspension.
Kansas Supreme Court – Civil
RODRIGUEZ ET AL. V. USD 500 ET AL.
WYANDOTTE DISTRICT COURT – REVERSED AND REMANDED
COURT OF APPEALS – REVERSED
FACTS: The accident that injured Rodriguez occurred on August 29, 2006, while he was traveling to his first match of the Sumner Academy soccer season. Rodriguez was riding in the bed of a pickup truck driven by fellow student and teammate Hitze when the pickup collided with another car. Rodriguez was thrown from the pickup and sustained the injury that now requires him to have round-the-clock care. Rodriguez' mother, Graciela, initially filed this lawsuit on his behalf against the school district, Hitze, and the driver of the car that had collided with Hitze's truck. During the course of the lawsuit, plaintiff learned that the Association, which administers various extracurricular activities in the state, had purchased a Mutual of Omaha policy to cover injuries sustained by participants during events the Association sanctioned, as well as during certain types of travel to and from such events. Mutual of Omaha denied coverage and was added as a defendant. After a lengthy bench trial, the district judge ruled that Rodriguez' travel in Hitze's truck was neither "authorized" by the school district nor "subject to reimbursement," the two requirements for "covered travel" under the definition in the Mutual of Omaha policy. The judge based his decision on his belief that the school was prohibited by state law and district policies from authorizing travel by private vehicle when no adult was present. And, in his view, the travel would have qualified as subject to reimbursement only if the driver had a contract with the school district to pay for gasoline; there was no evidence that Hitze had such a contract. The district judge therefore held that Mutual of Omaha should be dismissed as a defendant in the case. The Court of Appeals held the trip was authorized travel as contemplated by the insurance policy. However, the Court of Appeals found that the travel was not qualified as subject to reimbursement and thus there was no coverage under the Mutual of Omaha policy.
ISSUES: (1) Insurance and (2) school activities
HELD: Court held the evidence admitted at the bench trial made clear that Rodriguez' travel with Hitze, although not arranged for or supervised by Sumner Academy, was nevertheless authorized by it. Nothing in the administrative guideline 188.8.131.52.1-A or in K.S.A. 72-8305 or K.S.A. 72-8301(c) ran contrary to Sumner Academy's system of allowing such travel once parents agreed to it. However, Court disagreed with the Court of Appeals and district court in finding that Hitze's expense in transporting Rodriguez to the soccer match qualified as "subject to reimbursement" under the Mutual of Omaha policy. Court stated that a reasonably prudent insured would understand the phrase to include travel that could be reimbursed and not limit its application to travel that was likely or would be or was required to be reimbursed.
DISSENT: Justice Johnson dissented and would find the travel expenses were not subject to reimbursement under the insurance policy.
STATUTES: K.S.A. 72-8208a, -8301, -8305
Kansas Supreme Court – Criminal
SEDGWICK DISTRICT COURT – REVERSED, SENTENCE VACATED, AND CASE REMANDED WITH DIRECTIONS
COURT OF APPEALS – REVERSED
NO. 104,516 – JUNE 12, 2015
FACTS: Jones was charged with aggravated robbery in 2008. She agreed to plead guilty as charged and the prosecutor agreed to join in Jones' request for a downward dispositional departure to probation and to recommend supervision by Community Corrections Field Services if Jones' criminal history score was a G or lower. Jones' criminal history score was determined to be I, which triggered the State's obligation to join in her request for probation. At the sentencing hearing, a different judge presided and the State was represented by a different prosecutor. The prosecutor did not confirm defense counsel's statement that the State joined in the departure motion or otherwise inform the court that the State recommended departure to probation. The sentencing judge denied Jones' dispositional departure motion, citing the nature of the crime, Jones' character and condition, public safety, and the crime's seriousness. The judge sentenced Jones to 59 months' imprisonment, the mid-range term in the applicable grid box, and 36 months' postrelease supervision. A divided Court of Appeals panel held the prosecutor did not violate the plea agreement because the prosecutor's comments were adequate to fulfill the agreement's requirement for the State to recommend probation. Judge Atcheson disagreed. The Supreme Court reversed and remanded for reconsideration in light of two recent plea-agreement-breach decisions. On remand, the same panel reconvened, and again the same majority determined the prosecutor did not violate the plea agreement. Judge Atcheson again dissented.
ISSUES: Plea agreements
HELD: Court stated the prosecutor had an affirmative duty arising from the plea agreement to recommend a particular sentence, which is what Jones bargained for when she agreed to plead guilty as charged. And the only consideration she received in exchange for the plea was the State's promise to join in her efforts to be sentenced to probation rather than imprisonment. Court held the State breached its plea agreement with Jones. The prosecutor did not inform the court of the State's recommendation, refer the court to a document containing the recommendation, or otherwise make sure the sentencing court was aware of the recommendation.
DISSENT: Justice Beier dissented and would hold the State did not breach the plea agreement.
STATUTES: K.S.A. 20-3018; K.S.A. 21-3427; and K.S.A. 60-2101
SALINE DISTRICT COURT – AFFIRMED
COURT OF APPEALS – AFFIRMED
NO. 106,580 – JUNE 12, 2015
FACTS: Officer Gawith of the Salina Police Department observed a driver make a right turn without activating the car's turn signal. Gawith tried to get the car to stop. Instead of pulling over, the driver accelerated, driving as fast as 50 miles per hour in a posted 30-mile-per-hour zone. After eventually stopping, officers handcuffed and searched Sisson. After several pat-downs, Officer Carswell eventually found in Sisson's right front pocket an electronic scale and a baggie containing a vegetable material that was later proved to be marijuana. Another officer retraced the route and along the way, found in the middle of the road nine baggies containing marijuana and one baggie containing cocaine powder. The bags were knotted in a manner similar to the baggie found in Sisson's pocket. Sisson claimed he had purchased the marijuana found in his pocket earlier that day and had intended to start using it just before the police pursuit began. He went on to explain that the scale was for kitchen use in ordinary cooking. A jury ultimately found Sisson guilty of possession of marijuana, possession of drug paraphernalia, possession of cocaine, and fleeing and eluding a police officer while committing five or more moving violations. The jury found him not guilty of possession of marijuana with intent to sell, deliver, or distribute; not guilty of possession of marijuana without tax stamps; and not guilty of possession of cocaine without tax stamps. The Court of Appeals affirmed.
ISSUES: (1) Answering jury questions, (2) video evidence, and (3) jury instructions
HELD: Court first held that it was evident that the jury based its conviction on the cocaine residue. The court instructed the jury that it had to be unanimous in rendering such a conviction. There was nothing improper about the conviction, and the instructions, read together with the answer to the jury's question, were enough for the jury to understand the foundation for a conviction. The court's answer sufficed to allow the jury to fulfill its function as a factfinder. Next, Court stated that because Sisson did not demonstrate that the State breached its affirmative duty to make the tape available in advance of trial and because of the lack of demonstrable prejudice, it concluded that the district court did not abuse its discretion by allowing the State to introduce the evidence of the dashboard camera. The tape merely corroborated the testimony of police officers that Sisson was committing traffic violations as he drove away from pursuing police cars and helped defeat the assertion that the drugs on the street belonged to Sisson. Last, Court rejected Sisson's claim that the instruction on drug paraphernalia improperly invaded the province of the jury by directing them to find that the scale necessarily constituted illegal paraphernalia. Court stated the instructions tracked the statutory language and accurately stated the law.
STATUTES: K.S.A. 21-5701; and K.S.A. 22-3212, -3414
Kansas Court of Appeals – Civil
NO. 112,786 – JUNE 12, 2015
FACTS: Eugenia and Vearl E. Crawford were married in October 1996. In October 2009, as part of the parties' separate maintenance action, they executed a stipulation and property settlement agreement which obligated Vearl to pay Eugenia "$1025 per month commencing in the month that either party leaves the marital residence, with a like amount to follow each month thereafter [on] the 1st day of the month until further Order of the Court. . . . Duration of the maintenance shall be 55 months." According to the journal entry and decree of divorce filed on February 11, 2011, the parties agreed the 55-month maintenance period referred to in the settlement agreement expired in October 2014. In June 2014, Eugenia filed a motion to reinstate and extend maintenance. A hearing on the motion was held in August 2014; after hearing arguments the district court held the settlement agreement did not have a provision regarding retaining or reserving jurisdiction. The district court found that the divorce decree did state jurisdiction was reserved "'concerning said maintenance . . . for modification if necessary.'" However, the district court held: "Modification and reinstatement are not similar things. In this particular case, modification in the context of Kansas law means that the Court has the authority to reduce the maintenance and the amount—from the amount of $1,025 downward but the Court is without jurisdiction to increase the maintenance upwards or to lengthen the period of time."
ISSUES: (1) Divorce and (2) maintenance
HELD: Court held that because the settlement agreement and the original divorce decree did not expressly state or contain language making it unmistakably clear that the district court had continuing jurisdiction to hear motions for reinstatement or extension of maintenance beyond the initial order, the district court lacked jurisdiction under K.S.A. 2013 Supp. 23-2904 to reinstate or extend maintenance beyond October 2014.
STATUTES: K.S.A. 23-2712, -2903, -2904; and K.S.A. 60-1610
CITY OF OVERLAND PARK V. LULL
JOHNSON DISTRICT COURT – REVERSED AND REMANDED WITH DIRECTIONS
NO. 111,741 – JUNE 9, 2015 (MOTION TO PUBLISH – ORIGINALLY FILED MARCH 13, 2015)
FACTS: Officer Morse of the Overland Park Police Department responded to the scene of an injury accident in which a truck driven by Lull had struck a U.S. mail truck at an intersection, causing the mail truck to tip on its side, trapping the driver. Lull had bloodshot eyes and smelled of alcohol. Lull admitted to having just come from a bar where he had two drinks. When asked to produce proof of his insurance, Lull initially gave Officer Morse his medical insurance card. Lull failed multiple field sobriety tests. At the station, Officer Morse started the required 20-minute alcohol deprivation period before the administering of a breath test and provided Lull with a copy of the DC-70 form. Officer Morse observed Lull follow along while the DC-70 form was read to him. At one point, however, Officer Morse became distracted by Lull's comments and lost her place on the DC-70 form. In doing so, Officer Morse failed to read paragraph 7 to Lull. Officer Morse was unaware she had not read paragraph 7 to Lull until she subsequently viewed the video of their interaction. After Lull indicated that he understood the DC-70 form as read to him, Lull was asked to submit to a breath test. Lull refused, indicating he had been told by attorneys not to take the test. Lull was convicted in Overland Park Municipal Court of DUI, a second offense, refusal of preliminary breath test, and failure to yield right of way. Lull appealed to the Johnson County District Court. Before trial, Lull filed a motion in limine arguing his test refusal should be suppressed because Officer Morse failed to comply with the oral notice requirements under K.S.A. 2012 Supp. 8-1001(k). The district court denied Lull's motion and his subsequent renewed motion in limine raising the same argument. The jury found Lull guilty of DUI second offense and failure to yield.
ISSUES: (1) DUI, (2) motion in limine, and (3) DC-70 notice
HELD: Court held that by omitting paragraph 7, Officer Morse did not inform Lull that the statutory penalty for him as a repeat DUI offender was more severe for him than those described in paragraph 6, i.e., automatic suspension of driving license for 1 year instead of an automatic suspension of either 30 days or one year depending on his blood alcohol level. Thus, Lull did not receive the information necessary for him to make an informed decision as to whether to take the test or not. Court held the officer failed to substantially comply with the notice provisions and the evidence of the test refusal should have been suppressed. Court held the error was not harmless and Court was not convinced that had the test refusal evidence been excluded, the jury would still have found Lull guilty beyond a reasonable doubt. Reversed for new trial.
CONCURRING: Justice Biles concurred with the majority's decision. He wrote separately to find disapproval with the PIK instruction language, but concluded the error was not reversible.
STATUTES: K.S.A. 8-1001; and K.S.A. 60-261
MAJORS V. HILLEBRAND ET AL.
SHAWNEE DISTRICT COURT – AFFIRMED
NO. 112,153 – JUNE 12, 2015
FACTS: Majors suffered from post-traumatic stress disorder after his daughter was severely injured in an accident when the car he was driving was involved in a collision with a large Kansas Department of Transportation (KDOT) truck driven by Hillebrand. Majors sued for his injuries claiming Hillebrand negligently caused the accident. In granting summary judgment to the defendants, the district court found: (1) Majors did not suffer any physical injury; (2) Majors suffers from PTSD but neither PTSD nor its symptoms constitutes a physical injury under Kansas case law; (3) Kansas precedent requires the plaintiff to show that he or she suffered from a qualifying physical injury before he can succeed on a claim of negligent infliction of emotional distress; and (4) no exceptions to the physical injury rule applied.
ISSUES: (1) Negligence and (2) post-traumatic stress disorder
HELD: Court stated that a plaintiff cannot recover for emotional distress caused by the defendant's negligence unless that emotional distress is accompanied by or results in physical injury to the plaintiff. The qualifying physical injury must directly result from the emotional distress allegedly caused by the defendant's negligence and must appear within a short span of time after the emotional disturbance. Court found Majors' generalized physical symptoms of emotional distress such as those associated with post-traumatic stress disorder are insufficient to state a cause of action for negligent infliction of emotional distress. Court held district court correctly granted summary judgment to the defendants on Majors' claim of negligent infliction of emotional distress.
CONCURRENCE: Chief Judge Malone concurred with the majority opinion but wrote separately to encourage the Kansas Supreme Court to reconsider the physical injury rule and either abandon the rule or adopt an exception to allow a plaintiff in a case such as this one to bring a cause of action for negligent infliction of emotional distress.
STATUTES: No statutes cited.
NUESSEN V. SUTHERLANDS ET AL.
WORKERS COMPENSATION BOARD – REVERSED AND REMANDED WITH DIRECTIONS
NO. 111,417 – JUNE 12, 2015
FACTS: Workers compensation benefits were awarded to the heirs of Nuessen who died at work at Sutherlands. In the original workers compensation claim, the Board issued a final decision on June 28, 2013, affirming the administrative law judge's (ALJ) award. Three days after the Board's decision, Nuessen's heirs (Nuessen) sent a demand for compensation on July 1, 2013, for the $25,000 lump-sum death benefit payment plus payment of Nuessen's medical and funeral expenses. Nuessen contended K.S.A. 2014 Supp. 44-556 does not provide for an automatic stay of benefits in death cases. In response, Sutherlands argued K.S.A. 2014 Supp. 44-556(b) stayed all payments pending the appeal to the Kansas Court of Appeals since there were no weekly benefits owed. The ALJ issued a decision awarding penalties. The Board vacated the penalties awarded by the ALJ for failing to pay the death benefits in a timely fashion while the case was on appeal. The Board found Nuessen was not entitled to receive penalties because the demand for the $25,000 lump-sum death benefit payment plus payment of Nuessen's medical and funeral expenses was premature, and that K.S.A. 2014 Supp. 44-556(b) stayed payment of benefits due and owing while the decision was appealed. Sutherlands did not request a stay pursuant to K.S.A. 77-616 of the Board's decision ordering the payment of death, medical, and funeral benefits.
ISSUES: (1) Workers compensation, (2) death benefits, and (3) stay during appellate review
HELD: Court held that K.S.A. 2014 Supp. 44-556(b) provides that review by the Kansas Court of Appeals does not stay the payment of weekly workers compensation benefits due for the 10 weeks before the Workers Compensation Board decision and for the period of time the decision is being judicially reviewed. Court also held that K.S.A. 2014 Supp. 44-556(b) does not automatically stay any action of the Workers Compensation Board. Rather, by its plain language, it prohibits the Board and the Kansas Court of Appeals from staying the payment of certain benefits pending review. K.S.A. 44-512a(a) imposes a penalty when a timely demand has been made by the employee/claimant and the employer or insurance carrier fails to timely pay the benefits due. Court held that if Sutherlands desired to stay the Board's decision on appeal, it could have requested a stay order from either the Board or from the Court of Appeals pursuant to K.S.A. 77-616 and it did neither. Court also held Nuessen made two demands for payment and this put Sutherlands on notice that a request for penalties and attorney fees was possible.
STATUTES: K.S.A. 44-512, -512a, -556; and K.S.A. 77-601, -616