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August 21 and 24, 2018 Digests

Posted By Administration, Monday, August 27, 2018

Kansas Supreme Court

Attorney Discipline

NO. 13,026—AUGUST 21, 2018

FACTS: Mandelbaum has been accused of violating Kansas Rule of Professional Conduct 8.4(b) pleading guilty to a felony count of attempting to evade or defeat tax. On the day of his plea, Mandelbaum voluntarily surrendered his license to practice law in Kansas. The court accepted his surrender and he is disbarred.



NO. 115,819—AUGUST 24, 2018

FACTS: Trear purchased land from Chamberlain in 1986. The sale contract included a preemptive provision covering an adjoining tract of land; the provision gave Trear the right of first refusal should Chamberlain wish to sell the parcel. In 2013, Chamberlain offered the parcel to Trear for $289,000. The offer stated that it would expire after eight days and that silence would be deemed as a refusal to purchase. Trear did not respond, and Chamberlain listed the parcel for $295,000. The property did not sell; a year later, Chamberlain sold part of the parcel to her daughter for $91,124. At that time, Trear sued, claiming that she violated his right of first refusal. As a remedy, he asked to be able to purchase the land from the daughter for the price that she paid. The district court ruled that the right of first refusal clause violated the rule against perpetuities and was unenforceable. It also held that the clause did not violate the statute of frauds and that Chamberlain did not comply with the provision requiring right of first refusal to Trear. Trear appealed the dispositive rule against perpetuities decision. Chamberlain cross-appealed arguing that she was entitled to judgment on the statute of frauds and contract compliance arguments. The court of appeals reversed, overruling the district court's rule against perpetuities decision. It agreed with the district court on the statute of frauds issue and that Chamberlain did not fully perform under the original purchase contract. The only issue preserved in the petition for review was whether Chamberlain complied with the contractual right of first refusal provision.

ISSUE: (1) Contract interpretation

HELD: Chamberlain initially complied with the contract when she offered to sell Trear the entire parcel for $289,000. He chose not to pursue the offer. Any interpretation that differs from this conclusion reads into the contract something that is not there and is erroneous. Similarly, the contract did not require Chamberlain to again contact Trear and offer him the smaller parcel. But factual issues remain regarding whether Chamberlain acted with good faith and in fair dealing. Because there remain factual questions about whether Chamberlain acted in good faith, this case must be remanded for further factfinding.

CONCURRENCE AND DISSENT (Johnson, J. joined by Beier, J.): The majority's decision is correct regarding the contract interpretation. But there is no need for a remand to determine whether Chamberlain acted in good faith.

STATUTES: No statutes cited.


NO. 111,105—AUGUST 24, 2018

FACTS: Castleberry suffered a stroke and, a year later, fell and sustained a fatal head injury. Her heirs sued Dr. DeBrot, claiming that he missed signs of her stroke and that this negligence then caused the fatal injury. A jury found Dr. DeBrot at fault and awarded damages to Castleberry's estate. On appeal, the court of appeals affirmed. Dr. DeBrot's petition for review was granted.

ISSUES: (1) Scope of petition for review; (2) causation instructions; (3) improper closing argument; (4) admission of expert testimony

HELD: In order to preserve an issue for review by the Kansas Supreme Court, the petition for review must list with specificity all issues that will be argued. A general statement about scope will not preserve issues for review. Expert testimony opined that Castleberry's stroke would not have happened had Dr. DeBrot met the standard of care. The court of appeals erred by finding that the causation instruction given was legally inappropriate, although harmless. In actuality, the instruction was both legally and factually appropriate. Castleberry's counsel exceeded the scope of permissible closing argument when he asked the jury whether it wanted "safe or unsafe medicine". But the error was harmless. Expert testimony was required to prove the standard of care, and the witnesses were allowed to explain the applicable standard.

CONCURRENCE (Beier, J., joined by Luckert and Johnson, JJ): The majority's decision is sound and none of the other issues raised before the court of appeals would have changed the outcome here. But Rule 8.03, as it exists now, did not prevent the Supreme Court from reviewing all issues raised by Dr. DeBrot in front of the court of appeals.

STATUTES: K.S.A. 2015 Supp. 60-456; K.S.A. 60-404, -456(b)


NO. 112,701—AUGUST 24, 2018

FACTS: Charla Biglow went to the emergency room suffering from a persistent cough and a fever. Charla complained about a rapid heartbeat, but Dr. Eidenberg attributed it to her having pneumonia and the breathing treatment she received. Charla was admitted to the hospital, where her complaints about her heart rate continued. Not long after admission, Charla died. Kevin, Charla's husband, brought suit against Dr. Eidenberg alleging that he violated the standard of care by not performing an EKG to check on Charla's rapid heartbeat. At trial, the expert testimony was divided as to whether Dr. Eidenberg met the standard of care. A jury found in favor of Dr. Eidenberg and the court of appeals affirmed. Kevin's petition for review was granted.

ISSUES: (1) Jury instructions; (2) motion in limine

HELD: The jury received a "physician's selection of course of treatment' instruction. This instruction was factually and legally appropriate. There is nothing to suggest that Dr. Eidenberg's failure to order an EKG was an unreasonable medical decision based on Charla's symptoms. Similarly, neither jury instruction defining negligence was clearly erroneous. The instruction which mentioned common experience was legally inappropriate, since establishing causation requires expert testimony. But the instruction was not clearly erroneous and any error was harmless. An order in limine prevented Kevin from using the words "safe" or "needless endanger a patient" during trial. Some review is precluded because Kevin never proffered what expert testimony was excluded by the order in limine. And substantively, the words covered by the order misstate the standard of care in Kansas and were properly excluded.

STATUTE: K.S.A. 2017 Supp. 60-251(c), -251(d)(2)


NO. 112,429—AUGUST 24, 2018 

FACTS: Joel Burnette sued Dr. Eubanks and her clinic alleging negligence in administering epidural steroid injections for back pain. Joel believed that the negligent manner of delivering the injections caused side effects which included nerve damage and significant pain. Four years after the injection, Joel committed suicide. Joel's parents filed a wrongful death case against the defendants on behalf of the estate and the lawsuits were consolidated by the district court. A jury found Dr. Eubanks liable for Joel's injuries and death. The verdict was affirmed by the court of appeals and the Burnettes' petition for review was granted.

ISSUES: (1) Causation instructions; (2) expert testimony; (3) damages

HELD: Taken as a whole, the jury instructions correctly supplied the cause-in-fact requirement for causation. The use of the phrase "contributed to" was not erroneous. Expert testimony proved but-for causation tying Dr. Eubanks' negligence to Joel's back pain and subsequent death. The $550,000 economic damages awarded by the jury to Joel's parents were improperly categorized as economic. The jury should not have been allowed to allocate damages for the harm of "loss of a complete family" and there was inadequate evidence to justify any additional economic award.

STATUTES: K.S.A. 2017 Supp. 60-250, -250(a); K.S.A. 60-1901, -19a02, -1903, -1903(e), -1904(a), 65-6319


NO. 115,932—AUGUST 24, 2018

FACTS: Kiowa County Memorial Hospital operates in Greensburg. The Hospital is managed by a Board of Trustees which is elected according to statute. The Board has statutory authority to levy a tax to operate and maintain the hospital. Great Plains is a non-profit corporation which is responsible for operating the hospital under the terms of a lease. Under the terms of the lease agreement, if Great Plains believes that additional revenue is necessary, it will inform the board of the need and the board will request that the county levy a tax. After three years of escalating levies, the county commission sought information about the hospital's budget and finances. The county commissioner sent a letter seeking, under the Kansas Open Records Act, certain budget documents. Great Plains refused the request, claiming that it was exempt from KORA. The state filed an action in district court seeking KORA enforcement and a fine for what it viewed as Great Plains' bad-faith refusal to comply. The district court granted the state's motion for summary judgment, ordered disclosure of the requested records, and imposed a $500 fine. The court of appeals affirmed the finding that Great Plains is subject to KORA but remanded the case for further findings about whether specific requested records were relevant to Great Plains' contractual performance. The Supreme Court granted both a petition and a cross-petition for review.

ISSUES: (1) Great Plains' status under KORA; (2) need for a remand

HELD: The Court finds for the first time on appeal that KORA explicitly covers instrumentalities of political and taxing subdivision and that Great Plains meets the definition of an instrumentality of county government. It is uncontroverted that the hospital is meant to be an arm of county government. As an instrumentality, Great Plains is a public agency and as such, is covered by KORA. The nature of the records sought by the state is irrelevant. As an agency covered by KORA, Great Plains has a duty to disclose. The court of appeals' order of remand is reversed.

STATUTES: K.S.A. 2016 Supp. 45-217(f)(1), -220(b), -221, -229(a), 75-4318(a); K.S.A. 2015 Supp. 45-217(f)(1), -217(f)(2), -217(g)(2); K.S.A. 19-4603, -4605, -4605(a), -4611, -4611(d), 60-404



criminal law—criminal procedure—evidence—sentences—statutes
state v. atkisson
anderson district court—reversed and remanded
court of appeals—reversed
No. 115,468—august 24, 2018

FACTS: Atkisson convicted of raping a child under 14 years old. Hard 25 life sentence imposed under Jessica’s Law. Atkisson appealed the denial of his motion under K.S.A. 2013 Supp. 21-6627(d) for a downward departure. In unpublished opinion, Court of Appeals vacated the sentence and remanded for resentencing in light of State v. Jolly,  301 Kan. 313 (2015). At resentencing, district court again denied the recommended departure and reimposed the hard 25 life sentence. Atkisson appealed, claiming district court abused its discretion by failing to apply Jolly, claiming the district court improperly weighed mitigating factors against aggravating factors, and relied on factual determinations - mostly from the probable cause affidavits - relating to uncharged conduct, dismissed counts, or otherwise unproven allegations. Court of Appeals affirmed in unpublished opinion. Atkisson’s petition for review granted.

ISSUES:  (1) Facts material to the departure determination, (2) source of facts relied on when determining departure

HELD: As decided in State v. Powell (decided this same date), district court can consider facts material to the substantial and compelling reason determination, and is not limited to focusing only of the facts surrounding the crime of conviction. Here, the district court did not abuse its discretion by considering immaterial subject matter in ruling on the departure motion. Facts referenced by the district court were relevant to the departure determination because they rebutted Atkisson’s mitigation claim based on his presentence investigation report that he had no significant criminal history.

District court’s determination to deny departure was an abuse of discretion because its reliance on these facts was unsupported by the evidence. Neither the probable cause affidavit nor the victim’s father’s statement were offered or admitted as evidence. Court of Appeals is reversed. Sentence is vacated, and case remanded to district court for reconsideration of the departure motion and resentencing.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J. and Johnson, J.): Concurs in the result and majority’s rationale, subject to the same limitation described in her concurrence in Powell.

STATUTES: K.S.A. 2013 Supp. 21-6627, -6627(d), -6627(a)(1), -6627(d)(1), -6801 et seq., -6804, 60-460( b); K.S.A. 20-3018(b), 60-418, -2101(b)


constitutional law—criminal law—fourth amendment
search and seizure
state v. boggess
butler district court—affirmed
court of appeals—affirmed
No. 111,361—august 24, 2018

FACTS: Motley allowed law enforcement officers to search car she was driving with Boggess as front-seat passenger. Among clutter on passenger floorboard, officer found and opened a small nondescript black zippered bag that held drug contraband. When it was discovered the bag belonged to Boggess, she was charged with drug offenses. She filed motion to suppress, claiming Motley had neither actual nor apparent authority to consent to a search of Boggess’ belongings. District court denied the motion finding Motley had apparent authority to consent to the search, and found Boggess guilty on all counts. Court of appeals affirmed in unpublished opinion. Boggess’ petition for review was granted.

ISSUE: Apparent authority to consent to search

HELD: Motley had apparent authority to consent to the search of the zippered bag. Under facts in case, when Motley gave her consent, it was objectively reasonable for officers to believe she had authority to consent to a search of the nondescript zippered bag. Cited facts included: (1) driver’s easy access to front passenger floorboard often used to store objects while driving, and Eleventh Circuit case (United States v. Barber, 777 F.3d 1303 [20105]) on similar facts; (2) Boggess was aware of the consent and that officers were going to search the vehicle but remained silent and did not claim ownership in any item in the vehicle; (3) nothing about the small zippered bag would signal to a reasonable person that Motley did not exercise common authority over it; and (4) the presence of clutter on the floorboards suggested the driver either placed the clutter there or sanctioned its presence in the vehicle.

DISSENT (Luckert, J.)(joined by Beier and Johnson, JJ.): Disagrees that officer’s reliance on Motley’s consent to search bags located at feet of passenger was objectively reasonable. Agrees that Motley had apparent authority to consent to a search, but once the zippered bag was found in passenger area, a person of reasonable caution would have questioned whether the driver had apparent authority to consent to a search of that bag. Disagrees with decision in Barber. Rejects majority’s dismissal of expectation of privacy in a small, zippered bag, as opposed to a purse. And under facts in this case, rejects majority’s reliance on Boggess’ silence. Would reverse judgments of Court of Appeals and district court, and remand for new trial.

STATUTE: K.S.A. 22-3216,-3216(3), 60-2101(b)


state v. powell
sedgwick district court—affirmed
court of appeals—reversed
No. 115,457—august 24, 2018

FACTS: Powell was convicted of aggravated indecent liberties with a child. District court imposed a hard 25 life sentence under Jessica’s Law, and denied Powell’s motion under K.S.A. 2017 Supp. 21-6627(d)(1) for a downward durational departure of 29.5 months. Powell appealed, claiming district court failed to follow the required analytical framework set forth in State v. Jolly, 301 Kan. 313 (2015), by failing to determine if mitigating circumstances existed, and by including aggravating circumstances and inappropriate facts of a stepchild’s testimony about Powell’s prior uncharged abuse. Divided court of appeals panel reversed and remanded for resentencing in compliance with Jolly because district court did not affirmatively declare that it reviewed Powell’s mitigating circumstances without weighing them against aggravating circumstances. 53 Kan.App.2d 758 (2017). Dissent argued the district court had complied with Jolly, and urged review to clarify how sentencing courts should conduct hearings on departure motions under Jessica’s Law. State’s petition for review was granted.

ISSUES: (1) Jessica’s Law departure motion, (2) abuse of district court’s discretion

HELD: The district court’s failure to perform Jolly steps on the record is not reversible error. District courts considering a Jessica’s Law departure motion need not affirmatively state they are not weighing aggravating and mitigating circumstances. Language in caselaw contrary to today’s holding is no longer sound.

On review, an appellate court should disregard characterizations of evidence that might reasonably bear on a defendant’s sentence for a first time Jessica’s Law conviction as “aggravating.” The question is whether the evidence relates to the decision to be made, i.e., whether the mitigating circumstances advanced both exist and supply a substantial and compelling reason to depart from the hard 25 life sentence. Here, Powell failed to show the district court abused its discretion by denying departure. District court’s consideration of the prior-sex-crime evidence in ruling on the departure motion was proper because:  (1) it was a “fact of the case” for the substantial and compelling reason determination required under K.S.A. 2017 Supp. 21-6627(d)(1), showing the convicted crime was not an isolated incident; (2) it was relevant to whether Powell proved his claimed mitigating circumstances; and (3) Powell failed to contemporaneously object to this evidence. Panel majority’s decision is reversed. Powell’s sentence is affirmed.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J. and Johnson, J.): Agrees the district court’s judgment must be affirmed. No abuse of discretion in what district judge said—with or without majority’s criticism and clarification of Jolly. Writes separately to distance from overbroad and unnecessary statements that how a district judge labels or characterizes evidence or the fact it has been admitted to prove is of no moment.

STATUTES:  K.S.A. 2017 Supp. 21-5506(b)(3)(A), -6627, -6627(a)(1), -6627(d), -6627(d)(1), -6804, 22-3608(c), 60-455(d); K.S.A. 20-3018(b), 21-4643, 60-404, -2101(b)


Kansas Court of Appeals



NO. 117,128—AUGUST 24, 2018

FACTS: An employee received workers compensation benefits for years of repetitive use injuries. The claims spanned two employers and several insurance companies. OneBeacon American Insurance Company paid approximately $152,000 to the employee after March 1, 2005. After an appeal, the award was remanded back to the Workers Compensation Board of Appeals for further factual findings. The board awarded a maximum disability benefit of $200,000, total, for two different injuries but did not address which insurance company was responsible for paying which injury. OneBeacon informed Karns, the Director of Workers Compensation, that it was not responsible for covering any preliminary medical benefits. OneBeacon identified the Workers Compensation Fund as the likely source for reimbursement, a position echoed by Travelers. The Fund believed that Travelers was the source of repayment to OneBeacon. Karns considered the parties' submissions and then issued an order which included findings of fact and conclusions of law. The order directed Travelers to reimburse OneBeacon. Travelers filed a petition for review with the district court, which ruled that Travelers had no statutory remedy in district court. Travelers appealed.

ISSUES: (1) Statutory remedy; (2) district court decision

HELD: The Workers Compensation Act addresses a situation where a party believes it has paid benefits that should have been paid by another entity. K.S.A. 2017 Supp. 44-556(e) requires a decision maker to identify the amount and the entity responsible for repayment. After that decision is made, the director certifies that amount for reimbursement. ALJs, the board, and the appellate courts must make the substantive decisions. That didn't happen here, and Karns exceeded his authority by making findings of fact and conclusions of law. That order is reversed, and this matter is remanded to the board for further proceedings and a decision on reimbursement. Karns' reimbursement order was essentially an agency action which could be challenged in district court. The order also exceeded Karns' authority and was challengeable on those grounds.

STATUTES: K.S.A. 2017 Supp. 44-534a(b), -551(p), -556(a), -556(d), -556(e), 77-529(a), -603(a), -603(c), -621, -621(c); K.S.A. 77-602(b)(1), -622(b)


NO. 117,499—AUGUST 24, 2018

FACTS: John and Joyce Moore owned land in trust as an estate plan for all four of their children. One son, Steven, convinced John to sell their homestead to Steven's son. Months later, Steven got Joyce to sell land to her grandson. The real estate was sold for much less than market value and left the trust mostly stripped of assets. Joyce, on behalf of the trust, sued Steven and his son seeking to have the purchase contracts set aside. Joyce claimed that both she and John lacked the capacity to sell the homestead and farmland under contract. In addition, she claimed that the contracts should be set aside because of Steven's undue influence over his parents. A jury found in Steven's favor and Joyce appeals.

ISSUES: (1) Jury instructions on undue influence; (2) improper jury argument

HELD: Contracts between parties in a fiduciary relationship are due close scrutiny. In this case, Steven held a position of confidence with his parents. Because of that fact, the district court failed to instruct the jury on the appropriate burden of proof on an undue influence claim. The evidence shows that the case was a close one, meaning that the absence of an instruction on how to allocate the burden of proof was not a harmless error. This is true even if the contracts are viewed as testamentary documents, as a rational factfinder could have found the existence of suspicious circumstances. The claim of an inappropriate comment during closing argument is difficult to address because it was handled by an off-the-record bench conference. Because so much is unknown, the appellate court can't find an abuse of discretion.

STATUTE: K.S.A. 2017 Supp. 60-460(a)



criminal law—probation—sentences—statutes
state v. baker
johnson district court—reversed and vacated
No. 118,338—august 24, 2018

FACTS: In case at issue, Baker convicted of two counts of forgery and one count of theft. Sentencing court ordered prison terms for each charge, with a 24 month probation period. Journal entry more fully detailed 18 months of probation for each forgery conviction, and 24 months’ probation for the theft. Over 18 months later, district court revoked probation and ordered her to serve the three aggregated prison terms. Baker objected, arguing she completed her 18-month probation, and thus her sentences on the forgery convictions, well before the State took action to revoke her probation. District court disagreed, reasoning a unitary probation period of 24 months applied to the case. Baker appealed.

ISSUE: Sentencing - probation in multiple cases

HELD:  District court’s pronouncement was technically incomplete and should have included a probation period for each of the three convictions. Pertinent sentencing statutes are reviewed, finding K.S.A. 2017 Supp. 21-6819(b)(8) is susceptible to two conflicting readings. Concept of in pari materia interpretation underscores the reasonableness of applying rule of lenity to Baker’s advantage. When the district court revoked Baker’s probation and ordered her to prison, she had already completed her probation and satisfied the sentence on each of the forgery convictions. Only service of the sentence on the theft conviction could be required. District court’s revocation of Baker’s probations on the forgery convictions are reversed, and the resulting sentences of imprisonment for those convictions are vacated.

STATUTES: K.S.A. 2017 Supp. 21-6603(g), -6604(a)(3), -6608, -6608(c)(1)(B), -6608(c)(3), -6608(c)(4), -6608(c)(5), -6819, -6819(b)(8); K.S.A. 22-3202(a)


criminal law—criminal procedure—prosecutors—statutes
state v. lacy
sedgwick district court—reversed and remanded
No. 117,884—august 24, 2018

FACTS: K.S.A. 2015 Supp. 21-5506(b)(2) and (b)(3) sets forth two forms of indecent liberties with a child - with the required criminal intent the offender either touches the victim or solicits the victim to touch another person. Prosecutor charged Lacy with the solicitation form of  aggravated indecent liberties, but trial evidence and jury instructions involved only the touching form of that aggravated offense. Lacy appealed, claiming insufficient evidence supported his conviction on the charged offense.

ISSUE: Sufficiency of the evidence

HELD: State charged Lacy with the wrong crime, never asked for the charge to be amended, and obtained a conviction for the wrong charge. Facts in case supported only the touching form of aggravated indecent liberties, and jury was instructed about that form rather than the charged offense Because the evidence did not support the elements of the crime charged and convicted, and there were no potential lesser-included offenses at issue, Lacy’s conviction must be reversed. As a teaching tool, Court identifies points when prosecutors and district court might have recognized and corrected the error in this case. District court’s judgment is reversed, and Lacy’s sentence is vacated.

STATUTES:  K.S.A. 2015 Supp. 21-5506(a), -5506(b), -5506(b)(2), -5506(b)(3), -5506(b)(3)(B); K.S.A. 22-3201(e)

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