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May 3, 2019 Digests

Posted By Administration, Monday, May 6, 2019

Kansas Supreme Court


BAR DOCKET NO. 8,791—MAY 2, 2019

FACTS: In a letter signed April 23, 2019, John S. Sutherland voluntarily surrendered his license to practice law in Kansas. At the time of surrender, Sutherland was facing a disciplinary complaint connected with his convictions for mail fraud and making a false statement.

HELD: The Court accepts the surrender of Sutherland's license and he is disbarred.


Kansas Court of Appeals


NO. 118,287—MAY 3, 2019

FACTS: Mouchague died in 2012. Terry Diehl was appointed as executor of her estate. The sole beneficiary of the estate of Mouchague's trust. Leonard and Patricia Kowalski have an 80% equitable interest in the trust as beneficiaries, but neither Leonard nor Patricia serve as a trustee. In her role as executor, Diehl moved for attorney fees for costs incurred in a quiet title action. The district court in this probate action awarded Diehl fees not only for the quiet title action but also for a prior appeal in which the Kowalskis challenged another attorney fee award. The Kowalskis appealed.

ISSUES: (1) Standing; (2) actions by the trustee; (3) appellate attorney fees

HELD: The Kowalskis are aggrieved here because Diehl has been awarded fees out of estate funds, which leaves less money to eventually pass on to the Kowalskis. But neither Kowalski is a beneficiary of Mouchague's will—the only beneficiary is the trust. The Kowalskis lack standing to pursue an action on their own behalf when the appropriate party would be the trustee. But an exception would allow them to pursue this action if they could prove that the trustee failed to protect their interests as beneficiaries. The Kowalskis failed to prove that the trustee improperly failed to protect their interests in trust property. In light of this absence of proof, only the trustee has standing to appeal. Documents provided to the court show that Diehl is entitled to appellate attorney fees. But the motion failed to include the detailed affidavit that is required by Rule 7.07(b)(2). In the absence of that required affidavit, the motion for fees is denied.

STATUTES: Kansas Constitution, Article 3, § 1; K.S.A. 58a-816(24), -1001(a), 59-1717, -2224



constitutional law—criminal law—evidence—statutes
state v. warnke
dickinson district court—reversed
No. 118,738—May 3, 2019

FACTS: Auto driven by Warnke collided with horse-drawn open two-wheeled buggy traveling on K-43, resulting in death of horse and injuries to the two boys in the buggy. Some evidence that Warnke may have been on her cell phone right before the accident. Jury found Warnke guilty of felony reckless aggravated battery and misdemeanor criminal damage to property.  Warnke also convicted on two traffic infraction charges tried to the court. On appeal Warnke challenged the sufficiency of the evidence supporting her convictions, arguing the record contains at most evidence of inattentive driving, and no evidence she acted knowingly. She also argued the phrase “can be inflicted” in the aggravated battery statute is unconstitutionally vague. 

ISSUES: (1) Aggravated battery, (2) misdemeanor criminal damage to property, (3) constitutionality of K.S.A. 2018 Supp. 21-5413(b)(2)(B)

HELD: Reckless aggravated battery statute, requiring a showing of reckless conduct, is contrasted with vehicular homicide statute which does not require proof of reckless or intentional misconduct. Speaking on a cell phone while driving is not a violation of Kansas traffic laws. In this case, Warnke clearly was at fault for failing her common-law duty to keep a proper lookout of the road ahead, but her misconduct did not reach the high threshold for a felony criminal conviction for reckless aggravated battery. Convictions on those two charges are reversed.

            Warnke was aware that she was talking on cell phone as she drove down the highway, but evidence does not support that she was aware that talking on cell phone while driving was reasonably certain to cause her collision with the buggy. Conviction for criminal damage to property is reversed. 

            Warnke’s constitutional claim is dismissed as moot.

STATUTES: K.S.A. 2018 Supp. 21-5202(b), -5202(c), -5202(i), -5202(j), -5406, -5406(a), -5406(c), -5413(b)(2), -5813(a)(1), -5813(c)(3); K.S.A. 2016 Supp. 8-15,111, 21-5413(b)(2)(A), -5413(b)(2)(B), -5813(a)(1), -5813(c)(3); K.S.A. 21-3405

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