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January 18, 2019 Digests

Posted By Administration, Tuesday, January 22, 2019
Updated: Tuesday, January 22, 2019

Kansas Supreme Court

Attorney Discipline

 

ORDER OF DISBARMENT
IN THE MATTER OF THOMAS J. ROBINSON
NO. 13,609—JANUARY 15, 2019

FACTS: In a letter dated December 25, 2018, Thomas J. Robinson voluntarily surrendered his Kansas law license. At the time of surrender, Robinson's license was temporarily suspended because of convictions in Arizona for aggravated assault and domestic violence.

HELD: The criminal conviction is conclusive evidence of both commission of a crime and a disciplinary violation. Because surrender was made while a complaint was pending, Robinson is disbarred.

 

Civil

 

GARNISHMENT—INSURANCE
GEER V. EBY
COWLEY DISTRICT COURT—COURT OF APPEALS IS REVERSED
DISTRICT COURT IS REVERSED
NO. 115,948—JANUARY 18, 2019

FACTS: Geer and Eby were involved in an auto accident. Geer's insurance company – State Farm – paid a claim for her car and then sought subrogation from Eby's insurer – Key Insurance. Key offered to pay policy limits, which were significantly less than the total amount of the claim, as long as Geer agreed to release Eby from any future liability. State Farm refused the offer, so Geer sued Eby. Eby did not respond and Geer moved for default judgment. The district court granted that motion and entered judgment against Eby for the total amount of Geer's claim. It was at that time that Key first learned of the lawsuit, as State Farm failed to notify Key prior to filing suit and Eby didn't tell Key about the suit after it was filed. Geer filed a request for garnishment seeking money owed by Key to Eby. Key responded that it did not owe Eby any money because he failed to comply with the notification requirements found in his insurance policy. Key sought judgment arguing that Eby's failure to notify it of the lawsuit bars any recovery on Key's policy by Eby or Geer. The district court disagreed and entered an order of garnishment in favor of Geer and State Farm. The Court of Appeals affirmed that decision, finding that Key could not show prejudice from the lack of notice of suit. Eby's petition for review was granted.

ISSUE: (1) Whether lack of notice allows Key to deny coverage

HELD: It is undisputed that Eby breached his duty to inform Key of State Farm's lawsuit. The district court erred when it found that Key was not prejudiced by this lack of notice. Although Key had notice of the claim it did not have notice of the lawsuit, and that lack of notice prejudiced its ability to defend itself. Under the clear terms of Eby's insurance policy, his failure to give notice of suit absolves Key from having to provide coverage. The garnishment order must be reversed.

STATUTES: K.S.A. 2017 Supp. 60-738(b); K.S.A. 2015 Supp. 60-729(a); K.S.A. 60-724(2), -732(c)(1)

Criminal

 

APPELLATE PROCEDURE—CONSTITUTIONAL LAW—CRIMINAL PROCEDURE—STATUTES
STATE V. ALVAREZ
SALINE DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART
NO. 115,993—JANUARY 18, 2019

FACTS: Alvarez was charged with first-degree murder. Three days before trial, he entered a no contest plea to second-degree murder. State requested reimbursement of expenses related to witnesses and development of photographs intended as trial exhibits. District court taxed Alvarez for trial preparation expenses, finding statute allowed reimbursement for appropriate trial preparation fees that were reasonable and properly documented. Alvarez appealed, arguing that the district court lacked authority to tax him for trial preparation expenses. He also challenged the constitutionality of using his criminal history score to enhance his sentence. Court of appeals affirmed in unpublished opinion, finding K.S.A. 22-3801 and K.S.A. 2017 Supp. 28-172a authorized and mandated district court assessment of photographs as court costs to be reimbursed to the prosecution, and finding Alvarez’ constitutional claim was unpreserved and abandoned for appellate review. Alvarez’ petition for review was granted on both issues.

ISSUES: (1) Court costs, (2) preservation and abandonment of Constitutional claim

HELD: District court did not err when it found expenses the State incurred in preparing exhibits reasonably related to the prosecution of the defendant were properly taxable as court costs under K.S.A. 22-3801. Contrary to the panel’s conclusion, however, K.S.A. 22-3801 and K.S.A. 2017 Supp. 28-172a did not mandate imposition of the expenses.

      Alvarez conceded his sentencing claim has been decided adversely to his position, and he was not presenting any argument the court had not yet considered. But where presentation of a settled issue was necessary for preserving federal review, Alvarez’ preservation statement and briefing were sufficient to preserve his constitutional claim. Panel’s conclusion that the issue was unpreserved and abandoned is reversed, and panel’s decision is affirmed on the merits.

STATUTES: K.S.A. 2017 SUpp. 28-172a, -172a(a), -172a(d); K.S.A. 22-3801, -3801(a)

 

Kansas Court of Appeals

 

Civil

 

PARTNERSHIP—PROPERTY
STEPHENS V. AINSWORTH
ELK DISTRICT COURT—AFFIRMED
NO. 117,736—JANUARY 18, 2019

FACTS: Stephens and Lewis were long-time close friends who had several joint business ventures. One of those ventures was a partnership, although it was an oral arrangement with no partnership agreement. In 1995, they built a cabin together that was used for hunting and recreation. Both the cabin and the land around it were owned in both names as joint tenants with rights of survivorship. By the early 2000s the duo's partnership was dissolved and the friendship was severely strained. Stephens died in 2013, and the hunting cabin was soon the subject of litigation as both Stephens' and Lewis' families claimed exclusive ownership. Lewis claimed ownership under the joint tenancy. Stephens claimed the cabin was partnership property that had previously been distributed solely to Stephens. A suit was brought, and the district court found that the cabin was never partnership property, meaning that ownership was governed by the deed. Because the cabin was owned jointly with a right of survivorship, it awarded sole ownership to Lewis. Lewis died in 2017, and Stephens' estate appealed.

ISSUE: (1) Whether property was an asset of the partnership

HELD: Because there was no written partnership agreement between Stephens and Lewis, the Kansas Revised Uniform Partnership Act applies. There was conflicting evidence presented to the district court and sufficient evidence to support both sides of this debate. There was substantial competent evidence to support the district court's finding that the cabin and all of the land were purchased with personal funds, triggering the statutory presumption that the property was separate from the partnership. This presumption was not sufficiently rebutted, which means the district court must be affirmed.

STATUTE: K.S.A. 56a-101(f), -204, -204(c), -204(d)

 

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