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March 15, 2019 Digests

Posted By Administration, Monday, March 18, 2019

Kansas Supreme Court

Attorney Discipline

ORDER OF PROBATION
IN THE MATTER OF SAM S. KEPFIELD
NOS. 112,897 AND 119,709 – MARCH 15, 2019

FACTS: Kepfield has a previous history of discipline; he received a three-year suspension which was suspended while Kepfield was placed on supervised probation. A new disciplinary complaint was filed in 2018 alleging violations of KRPC 1.1 (competence); 1.3 (diligence); 1.4 (communication); 1.15(a) (safekeeping property); 1.16(d) (terminating representation); and 8.4(c) (misconduct involving dishonesty, fraud, deceit, or misrepresentation). After hearing evidence, the panel concluded that Kepfield did not violate KRPC 1.1 or 1.4. Kepfield stipulated to the other violations and the panel found evidence in support. The violations arose after Kepfield failed to file a petition for review on behalf of a client. Issues also arose after it was discovered that not only did Kepfield did not have an attorney trust account, he lied to investigators about that fact when asked.

HEARING PANEL: The panel not only found that Kepfield committed new violations but also that he violated the terms of his probation. The hearing panel considered the violations, the aggravating factors (dishonest or selfish motive, multiple offenses, and bad faith obstruction of the disciplinary process), and the mitigating factors (Kepfield's mental health, his cooperation in some aspects of the investigation, and his good character and reputation). The disciplinary administrator asked that Kepfield be disbarred. Kepfield asked that his probation be extended. The hearing panel recommended a three-year suspension with a probationary term entered after Kepfield serves 6 months of that suspension.

HELD: With no exceptions taken, the hearing panel's final report is deemed admitted. After hearing arguments, a majority of the court granted the motion to revoke probation and ordered the one-year suspension reinstated. After Kepfield serves this one-year suspension, the court recommended that Kepfield be suspended from practice for three years, with a three-year probation plan implemented after six months. A minority of the court agreed with the disciplinary administrator and would have imposed discipline of an indefinite suspension.

DISCHARGE FROM PROBATION
IN THE MATTER OF STEPHEN M. STARK
NO. 114,583 – MARCH 15, 2019

FACTS: In June 2016, the Kansas Supreme Court suspended Stark for two years, with the suspension stayed and Stark ordered to serve a two-year term of probation. Stark filed a motion for discharge from probation in February 2019.

DISCIPLINARY ADMINISTRATOR: The disciplinary administrator confirmed that Stark fully complied with the conditions of his probation. There was no objection to Stark's release from probation.

HELD: In the absence of any objection, the motion is granted. Stark is discharged from probation and this proceeding is closed.

Civil

STATUTE OF LIMITATIONS
DAWSON V. BNSF RAILWAY COMPANY
WYANDOTTE DISTRICT COURT – AFFIRMED
COURT OF APPEALS – REVERSED
NO. 112,925 – MARCH 15, 2019

FACTS: Dawson was diagnosed with arthritis in his back in 2004 and degenerative disc disease in 2008. Dawson was a train engineer, and after several rough rides his pain intensified. While seeking treatment in 2010, a doctor mentioned that he treated several railroad employees. Dawson claimed this was the first time he realized that his work duties could have caused his back pain. After a spinal fusion surgery Dawson was unable to continue to perform his job duties. In 2011 Dawson sued BNSF, his employer, under the Federal Employers' Liability Act alleging that negligence caused his back injuries. Although BNSF argued that Dawson's claims were time barred, the case went before a jury, which found in Dawson's favor. BNSF appealed and the Court of Appeals ruled that the district court erred when it ruled that Dawson's claims were timely. Dawson's petition for review was granted.

ISSUES: (1) Disregard of Dawson's factual assertions; (2) timeliness of Dawson's cumulative injury

HELD: Although Dawson failed to comply with Supreme Court Rule 6.02(a)(4) by providing pinpoint citations to the record on appeal, it was error to disregard the factual assertions supported by the record. Dawson properly requested all necessary materials but the Clerk of the District Court failed to compile an accurate record. Other pleadings that are in the record on appeal support Dawson's factual claims. Generally, a cause of action accrues when an injury occurs. With cumulative injuries, time begins to run when the injured person discovers or should have discovered the existence and cause of the injury. Dawson presented some evidence that he did not know about the cause of his injury until he was within three years before filing his claim. Because there was a factual dispute, the matter was properly sent to the jury. Dawson's cumulative injury claim was timely filed. The case must be remanded back to the Court of Appeals for consideration of Dawson's other claims.

STATUTES: 45 U.S.C. § 51, § 56 (2012); K.S.A. 2011 Supp. 60-250(a), -250(b), -259

DEATH OF A PARTY—DIVORCE—JUDGMENT
IN RE MARRIAGE OF TOWLE AND LEGARE
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,021 – MARCH 15, 2019

 FACTS: Dana and Louise were married in the late 1980s. Dana filed a petition for separate maintenance in 2015. The parties agreed to a temporary order which allowed the couple to live separately and ordered Dana to pay Louise's living expenses. While the process of working through the couple's assets was occurring, Louise was diagnosed with terminal lung cancer. The parties reached an agreement on property division and spousal support. The district court approved the agreement and filled out a docket sheet so that the parties could later attach a journal entry and get it filed. Unfortunately, Louise died before the journal entry was drafted and filed. Her counsel asked that her son, Mathieu, be substituted as a successor in interest. The district court granted that motion over Dana's objection. Mathieu's counsel continued to stall on preparing the journal entry, which was not complete until February 2018. Dana appealed.

ISSUES: (1) Whether death of party to a separate maintenance action required dismissal; (2) sufficiency of journal entry

HELD: A divorce action is purely personal and ends on the death of either spouse. A search of both common law and previous cases shows that a separate maintenance action is the same. It is personal and abates at the time of a party's death. The district court's docket sheet could not qualify as a judgment, as it is expressly excluded by statute. Although it was signed by the judge, the docket sheet was never filed. The district court is reversed and the separate maintenance action must be dismissed.

STATUTES: K.S.A. 2017 Supp. 60-2225(a), -258; K.S.A. 2016 Supp. 60-241(a), -258, -260(b); K.S.A. 60-1801

Kansas Court of Appeals

Civil

SCHOOLS—SCOPE OF REVIEW
B.O.A. V. U.S.D. 480 BOARD OF EDUCATION
SEWARD DISTRICT COURT—AFFIRMED
NO. 119,773 – MARCH 15, 2019
 

FACTS: An investigation revealed that B.O.A. threatened a school shooting on social media. B.O.A. explained that it was meant as a joke, and he apologized to the principal and the school district. The principal recommended a 186-day expulsion. B.O.A. requested and received a formal hearing. The hearing officer agreed with the principal and imposed a 186-day expulsion, the maximum allowed by statute. B.O.A. appealed. The superintendent acknowledged the gravity of B.O.A.'s mistake, but recommended a shorter expulsion. The Board of Education disagreed and expelled B.O.A. for 186 school days, beginning in January 2018. B.O.A. appealed to the district court, which found that the Board of Education's actions were arbitrary and capricious. The district court granted B.O.A. the relief he requested – limiting his expulsion to the spring of 2018. The Board appealed.

ISSUES: (1) Scope of permissible review

HELD: The record on appeal contains facts which support the district court's decision. There is evidence that B.O.A.'s social media post was a joke that went too far. He accepted responsibility and apologized. The Board offered no explanation as to why it imposed the maximum period of expulsion instead of following the superintendent's recommendation. The district court acted within its scope of review and is affirmed.

STATUTES: K.S.A. 60-2101(d), 72-6114(a) – (d), -6115(a)

appeals—criminal law—jurisdiction—juveniles—sentences—statutes
In re J.S.P.
wyandotte district court—dismissed
no. 118,790 — March 15, 2019

FACTS: J.S.P. entered no contest plea to charges for crimes occurring when he was 14 years old. In an extended juvenile jurisdiction proceeding (EJJP), district court imposed a juvenile sentence of 72 months with 24 months of conditional release, as well as adult sentence of 237 months to be served if J.S.P. failed to complete his juvenile sentence or comply with conditional release. Prior to expiration of the conditional release term, State filed motion to revoke the juvenile sentence and to impose the adult sentence. District court granted the motion, finding J.S.P. had violated conditions of his conditional release.  J.S.P. appealed, alleging denial of due process, insufficient evidence, and Eighth Amendment claims. State contended there was no statutory authority for the appeal. 

ISSUE: (1) Appellate Jurisdiction

HELD: The appeal is dismissed. Although juvenile offenders are entitled to similar constitutional protections as adults, they are not guaranteed the same statutory rights as adults unless specially provided for in the revised Juvenile Justice Code. Kansas statutes reviewed, finding none provide a juvenile offender with right to appeal an order revoking the juvenile sentence and ordering imposition of the stayed adult sentence in an EJJP.   

STATUTES: K.S.A. 2018 Supp. 38-2364, -2380, -2380(a), -2380(a)(1), -2380(b), -2380(b)(2)(A)-(B), -2382; K.S.A. 2015 Supp. 38-2364; K.S.A. 2014 Supp. 38-2380(b)

criminal

appeals—appellate procedure—criminal procedure—judgments— restitution—statutes
state v. dwyer
sedgwick district court—reversed
No. 118,940 — march 15, 2019

FACTS: Dwyer convicted of theft in 2003. Prison sentence with postrelease supervision imposed, and $8,450 in restitution ordered. In November 2017 he filed motion to release the restitution judgment. He argued the judgment went dormant after five years of inaction and was void and subject to release after no collection had been attempted for two additional years. Applying K.S.A. 60-2403 as amended in 2015 which reduced the collection period from ten to five years and provided that all restitution judgments not yet void were enforceable forever, district court found the judgment became void the minute the 2015 amendments went into effect and thus was not enforceable. District court granted Dwyer’s motion and released the restitution judgment. State appealed. Dwyer filed motion to dismiss the appeal arguing it was untimely filed within 14 days allowed in a criminal case, or within 30 days in a civil case. He also argued the appeal failed to satisfy any statutory circumstance for allowing an appeal in a criminal case, and failed to list the basis for jurisdiction in its notice of appeal.  

ISSUES: (1) Appellate Jurisdiction; (2) Statutory Interpretation—K.S.A. 2017 Supp. 60-2403

HELD: There is jurisdiction to hear the appeal. Proceedings regarding the collection of restitution judgments are civil in nature. Here, State filed timely notice of appeal within 30 days of the filing of the district court’s journal entry, and the notice of appeal satisfied all statutory requirements for filing an appeal in a civil case.

District court’s judgment is reversed. Under plain and unambiguous language of K.S.A. 2017 Supp. 60-2403, restitution judgments that were already void (or subject to mandatory release upon request) as of July 1, 2015, would not be subject to the new “never dormant” restitution provision because those judgments already had a predetermined expiration date. On facts in this case however, the collection clock on Dwyer’s restitution judgment began October 2003, making it subject to mandatory release in October 2015 after ten years dormant plus two additional years. The restitution judgment rendered against Dwyer is valid and is reinstated.

STATUTES: K.S.A. 2017 Supp. 22-3602, 60-258, -2403, -2403(a), -2403(b), -2403(d); K.S.A. 21-4603d(b)(2), 60-2101, -2101(a), -2102(a), -2102(a)(4), -2403, -2403(b), -2403(d)

Tags:  Attorney Discipline  Seward District  Wyandotte District 

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