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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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March 8, 2019 Digests

Posted By Administration, Monday, March 11, 2019

Kansas Supreme Court

Criminal  

criminal law—criminal procedure—jury instructions—statutes
state v. blansett
sumner district court—affirmed
no. 115,634—march 8, 2019

FACTS: Blansett convicted of first-degree premeditated murder and aggravated assault in stabbing son to death while she was in a psychotic episode. She appealed, claiming error in the jury instructions and arguing premeditation is a culpable mental state that can be negated by mental disease or defect defense. She also alleged prosecutorial error, and claimed cumulative error denied her a fair trial. Supplemental briefing ordered to address impact of State v. McLinn, 307 Kan. 307 (2018), which rejected the crux of Blansett’s claim of instructional error. Blansett then argued the jury instructions prevented jury from considering how evidence of her mental disease or defect affected her ability to premeditate. 

ISSUES: (1) Jury Instructions—Mental Disease and Defect; (2) Prosecutorial Error; (3) Cumulative Error 

HELD: The inclusion of premeditation in the challenged jury instruction was technically a misstatement of the law set forth in McLinn, but not reversible error And contrary to Blansett’s new arguments, the jury instructions as a whole did not prevent the jury from considering how her mental disease or defect affected her ability to premeditate. 

Three claims of prosecutorial error are examined. First, applying principles in State v. Williams, 299 Kan. 911 (2014), prosecutor did not suggest Blansett bore the burden of disproving the crimes charged when prosecutor told jury that defense had power to introduce evidence that defense counsel had inferred the State was hiding. Second, viewing State’s argument as a whole, prosecutor did not misstate evidence of Blansett’s intent with the knife. And distinguishing State v. Marks, 297 Kan. 1131 (2013), no error for prosecutor to argue that the nature of the weapons used and the multiple stab wounds were circumstantial evidence of premeditation.  Third, prosecutor misstated evidence by mistakenly commenting that Blansett had testified, but this error was harmless under facts in this case. 

Cumulative error doctrine does not apply to a single instance of prosecutorial error.

CONCURRENCE (Johnson, J.): Concurs in the result.

DISSENT (Beier, J.): Reiterates her dissent in McLinn. Would hold the inclusion of “premeditation” in the challenged instruction as an element of first-degree murder whose existence could be defeated by proof of Blansett’s psychosis was a correct statement of law.

The narrow definition of culpable mental state supplied by the instructions as a whole prevented jury from considering Blansett’s undisputed contemporaneous psychosis as competition for State’s evidence of her actions from which the jury might infer the existence of premeditation. Would hold this error was significant enough to reverse the first-degree premeditated murder conviction, vacate the sentence, and remand for further proceedings.

STATUTES: K.S.A. 2018 Supp. 22-3601(b)(3); K.S.A. 2014 Supp. 5202(a), -5209

criminal law—criminal procedure—jury instructions—statutes
state v. murrin
clay district court—affirmed
court of appeals—affirmed
No. 115,110—march 8, 2019

FACTS: Murrin charged with drug offenses, criminal trespass, and interference with law enforcement. He requested a voluntary intoxication instruction for the drug-related charges, which the district court granted. Jury found Murrin guilty on all charges. Murrin appealed, claiming in part that although he had not requested it, district court should have instructed jury on voluntary intoxication as a defense to charges of criminal trespass and interference with law enforcement. Court of Appeals affirmed in unpublished opinion, finding criminal trespass and interference with law enforcement were both general intent crimes for which a voluntary intoxication instruction was not legally appropriate.  Review granted on this one issue.

ISSUE: (1) Jury Instruction—Voluntary Intoxication

HELD: Statutory and caselaw history concerning “intent” and “knowledge” is reviewed. Aggravated battery conviction in State v. Hobbs, 301 Kan. 203 (2015), is cited as illustrating both the shift in meaning of “intentionally” and the change in what it means to be a general intent crime. A voluntary intoxication defense is available under K.S.A. 2018 Supp. 21-5205(b) when a defining mental state is a stand-alone element separate and distinct from the actus reus of the crime.  In this case, the district court erred by not instructing on voluntary intoxication as a potential defense for both crimes. Criminal trespass is a classic specific intent crime because the statute requires a stand-alone particular intent or other state of mind as a necessary element—Murrin must know he was not authorized or privilege to enter or remain. The statute defining interference with law enforcement prescribes no such stand-alone particular intent or other state of mind as a necessary element, but the instruction given for this crime arguably set one up as necessary to convict—Murrin knew or should have know the officer was a law enforcement officer. Nonetheless, under facts in this case, the district judge’s failure to give a voluntary intoxication instruction did not rise to clear error. The convictions are affirmed.

STATUTES: K.S.A. 2018 Supp. 21-5202, -5202(a), -5202(b), -5202(h), -5202(i), -5205(b), -5414(a)(2), -5807(a)(1), -5808(a)(1)(A), -5812, -5812(1), -5904(a)(3), 22-3414(3); K.S.A. 21-3201(a), -3208(2)

criminal procedure—motions—statutes
state v. roberts
anderson district court—affirmed
No. 117,450—march 8, 2019

FACTS: Roberts pled no contest to rape of child under age of 14. Hard 25 year prison sentence imposed. Prior to his plea, a court ordered evaluation established that Roberts was competent. Years later Roberts filed motion to correct an illegal sentence, claiming he had never admitted he was older than 18 or that the victim was under 14 at time of the crime. District court denied the motion, finding both ages were established in the record. Roberts appealed. He conceded summary denial was appropriate on the age issue, but argued he was still entitled to relief because noncompliance with the statutory procedures for determining pre-plea competency deprived the district court of jurisdiction to sentence him.  

ISSUE: (1) Motion to Correct Illegal Sentence

HELD: District court’s summary dismissal of the motion to correct an illegal sentence is affirmed. Roberts does not advance a substantive competency claim.  A merely procedural failure to comply with competency statute, K.S.A. 2017 Supp. 22-3202, is not jurisdictional, thus a motion to correct an illegal sentence is foreclosed. And on facts in this case, even the existence of a procedural flaw is far from clear. Although the judge did not make an explicit competency finding in open court, the competency issue appears to have been resolved by the district judge after the evaluation was ordered.  

STATUTES: K.S.A. 2017 Supp. 22-3302, -3504(2); K.S.A. 21-3502(a)(2), 22-3302(1), -3302(3), -3504

Tags:  Anderson District  Clay District  Mental Disease and Defect  motions  statutes  Sumner District  voluntary intoxication  Weekly20190312 

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March 1, 2019 Digests

Posted By Administration, Monday, March 4, 2019

Kansas Supreme Court

criminal

appeals—constitutional law—criminal procedure—sentencing
state v. brown
brown district court—judgment vacated and case remanded:
court of appeals—reversed
no. 113,751—march 1, 2019

FACTS: Brown entered a guilty plea to aggravated sodomy. A 360 month prison term was imposed. In an unpublished opinion, court of appeals found district judge stated reasons for departure from Jessica’s Law mandatory life sentence to the sentencing grid, but failed to state reasons for departure from grid range of 554-618 months to the 360-month sentence. Sentence vacated and remanded for resentencing. District judge then imposed 372-month sentence, stating same reasons for departure and noting impact on victim and her family by Brown appealing the sentence. A divided court of appeals panel affirmed in unpublished opinion. Brown filed petition for review, claiming the longer sentence denied him due process and conflicted with U.S. caselaw and Kansas Supreme Court precedent.

ISSUE: (1) Due process—vindictive resentencing

HELD: Brown’s constitutional claim, raised for first time on appeal, is considered. Presumption of vindictiveness, articulated in North Carolina v. Pearce, 395 U.S. 711 (1969), and applied in subsequent cases, is discussed. Under those U.S. Supreme Court decisions and State v. Rinck, 206 Kan. 634 (1996), Brown’s due process rights were violated. His successful appeal was the only reason articulated for the increased prison term, distinguishing State v. Spencer, 291 Kan. 796 (2011). Sentence is vacated and case is remanded for resentencing.

STATUTE: K.S.A. 2017 Supp. 21-5504(b)(1), -6815(a)

 

criminal procedure—motions
state v. Woodring
saline district court—affirmed
no. 117,347—March 1, 2019

FACTS: In exchange for all other charges being dismissed, Woodring entered plea of no contest to felony murder based on his involvement in a vehicular shooting. Prior to sentencing months later, he filed pro se motion to withdraw plea, arguing he was innocent because he did not pull trigger, and claiming State’s deadline for accepting the plea agreement was coercive. District court denied the motion, finding none of the factors in State v. Edgar, 281 Kan. 30 (2006), supported withdrawal of the plea. Hard-25 life sentence imposed. Woodring appealed the denial of his motion.

ISSUE: (1) Motion to withdraw plea

HELD: Under facts in this case, Woodring failed to show the good cause required by K.S.A. 2017 Supp. 22-3210 for withdrawing his plea prior to sentencing. Theory of aiding and abetting defeats his claim of innocence, and the 10-day deadline for accepting the plea agreement was not unduly coercive. District court’s ruling is affirmed.

STATUTES: K.S.A. 2018 Supp. 22-3601(b)(2): K.S.A. 2017 Supp. 21-5210, 22-3210, -3210(a), -3210(b)

Tags:  8804  Brown District  Saline District  Weekly20190305 

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February 22, 2019 Digests

Posted By Administration, Monday, February 25, 2019
Updated: Monday, February 25, 2019

Kansas Supreme Court

ATTORNEY DISCIPLINE

ORDER OF INDEFINITE SUSPENSION
IN RE LINDA S. DICKENS
NO. 119,198—FEBRUARY 22, 2019

FACTS: A hearing panel determined that Dickens violated Kansas Rules of Professional Conduct 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.5(d) (fees); 1.8(e) (providing financial assistance to client); 1.16 (termination of representation); 3.2 (expediting litigation); 5.1 (responsibilities of partners, managers, and supervisory lawyers); 8.3(a) (reporting professional misconduct); 8.4(a) (misconduct); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). While representing a client, Dickens loaned the client $20,000 at 8.99% interest. After acknowledging that violation of the KRPC, Dickens entered the Kansas attorney diversion program. As part of that agreement, Dickens agreed to complete 16 hours of continuing legal education, including 6 hours of ethics. She failed to complete the required hours. The diversion was revoked in 2017 after Dickens had two new complaints filed against her. These complaints included allegations of entering a contingent fee arrangement without a written agreement and threatening clients when they did not give her money that was not earned. Dickens also had a pattern of missing deadlines.

HEARING PANEL: The hearing panel found that Dickens' violations were both knowing and negligent. In addition to several aggravating factors, the panel determined that there were mitigating factors, including Dickens' mental health. The disciplinary administrator recommended discipline ranging from a one-year suspension to disbarment, depending on which factual findings were made by the panel. Dickens asked that she be placed on probation and the panel agreed, finding that significant mitigating factors were compelling. The panel recommended a two-year suspension underlying a two-year term of probation.

HELD: Dickens did not contest the underlying factual allegations. Unlike the hearing panel, the Court was not persuaded that Dickens' underlying health conditions warranted probation in this case, where some of Dickens' actions involved dishonest conduct. Because Dickens showed bad faith and selfish motives when dealing with clients and the court, the Court determines that the appropriate discipline is an indefinite suspension with eligibility for reinstatement coming after three years. 

 

CIVIL

EVIDENCE—SEX OFFENDER TREATMENT
IN RE CONE
CLAY DISTRICT COURT—
AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 116,801—FEBRUARY 22, 2019

FACTS: In 2012, Cone was convicted of aggravated indecent solicitation of a child. Prior to his release from prison, the State sought to have him involuntarily committed as a sexually violent predator. During the trial on that motion, the State planned to have an expert witness testify about Cone's results on the Static-99R and Static-2002R tests, which are actuarial tools that attempt to measure an offender's risk of recidivism. Cone challenged the admissibility of the test results on grounds of relevance and reliability. The district court applied the Daubert standard and admitted both test results, in addition to other testimony. A jury found that Cone qualified as a sexually violent predator subject to involuntary commitment. The court of appeals affirmed that finding, holding that the district court did not abuse its discretion by admitting expert testimony about the actuarial tests. The Supreme Court then granted Cone's petition for review.

ISSUES: (1) Admissibility of expert testimony; (2) sufficiency of the evidence

HELD: In the absence of a cross-appeal, the court will presume that Daubert is the appropriate test for evaluating challenges to actuarial tools in a sexually violent predator case. Cone does not challenge the experts' qualifications and focuses only on the determination that the tests are reliable. After considering the Daubert factors, the court agrees that the district court did not abuse its discretion by admitting the expert testimony. Experts testified at Cone's hearing that he meets the diagnostic criteria for pedophilic disorder, and there was sufficient evidence to support that conclusion. This diagnosis allows for a finding that Cone is a sexually violent predator.

STATUTES: K.S.A. 2017 Supp. 59-29a02(b), 60-456(b); K.S.A. 2014 Supp. 60-456(b); K.S.A. 2011 Supp. 59-29a06(c)

 

JURISDICTION—SERVICE
SCOTT V. EWING
WYANDOTTE DISTRICT COURT—REVERSED AND REMANDED
NO. 118,730—FEBRUARY 22, 2019

FACTS: Scott claims she was injured by fireworks during an Independence Day celebration in 2015. On June 30, 2016, Scott filed suit against Ewing, who hosted the event. Ewing answered, denying liability and raising a defense of comparative fault. On July 4, 2017, two years after the injury, Scott electronically filed a motion to amend her petition in order to add additional defendants. The district court allowed the amendment and Scott served the additional defendants in August 2017. The defendants moved to dismiss, claiming the statute of limitations barred recovery because Scott's actual motion to amend was not filed until July 5, 2017, after expiration of the statute of limitations. The district court granted the motion to dismiss, finding that the statute of limitations expired before Scott served the amended petition in August 2017. The court of appeals permitted an interlocutory review of this ruling.

ISSUES: (1) Expiration of the statute of limitations; (2) tolling of the statute of limitations

HELD: Although Scott was injured on July 4, 2015, the statute of limitations did not expire until July 5, 2017, because K.S.A. 60-206 extends the deadline until the next day that is not a holiday or weekend. The district court did not rule on Scott's motion to amend her pleading until after the statute of limitations had expired. K.S.A. 60-215(a) does not address how to handle this situation. The statute of limitations was tolled while the district court decided how to rule on Scott's motion to amend. The district court took more than 30 days to rule on the motion, and Scott should not be penalized for that delay.

STATUTES: K.S.A. 2017 Supp. 60-203(a), -206, -206(a)(1)(C), -206(a)(4)(A) -215(a), -215(a)(1), -215(a)(2); K.S.A. 60-513(a)(4)

Tags:  attorney discipline  Clay District  Wyandotte District 

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February 15, 2019 Digests

Posted By Administration, Tuesday, February 19, 2019

Kansas Supreme Court

criminal

appeals—constitutional law—criminal procedure—motions—postconviction remedies—statutes
state v. lapointe
johnson district court—affirmed 
court of appeals—affirmed on issue subject to review
cross-appeal sustained in part and denied in part on question reserved
No. 113,580—february 15, 2019

FACTS: LaPointe was convicted of aggravated robbery and aggravated assault. Trial evidence included hairs on clothing that jury knew probably did not belong to LaPointe, and damaging accomplice testimony. Years later, while in federal prison and subject to a Kansas detainer, LaPointe filed K.S.A. 2017 Supp. 21-2512 motion for DNA testing of the hairs. State argued the statute, which allows postconviction testing for crimes of first-degree murder and rape, did not apply to LaPointe’s crimes. State also argued LaPointe did not file his motion while he was in state custody, and argued the test results would not have affected jury’s verdict. District court granted the motion. Analysis confirmed one hair did not belong to LaPointe, and result on other hair was inconclusive but probably not his. LaPointe filed motion for new trial. Lower courts denied relief. LaPointe appealed. State cross-appealed the DNA testing decision. Court of appeals affirmed the decision denying a new trial, and dismissed State’s cross-appeal for lack of jurisdiction. Petitions for review by all parties granted.

ISSUES: (1) Motion for new trial; (2) K.S.A. 2017 Supp. 21-2512

HELD: Under facts in the case, the favorable DNA testing did not warrant a new trial. District court’s decision on this issue is affirmed.

There is jurisdiction to consider State’s statutory arguments as questions reserved. District court did not err in deciding LaPointe was in state custody.  K.S.A. 2017 Supp. 21-2512 does not apply to LaPointe. State v. Cheeks, 298 Kan. 1 (2013), which expanded postconviction DNA testing to a second-degree murder defendant to avoid perceived equal protection problems,, is examined and overruled to the extent it held the sentence imposed determines whether an offender is similarly situated to a person to whom postconviction DNA testing is statutorily available.  

CONCURRENCE (Beier, J., joined by Luckert and Johnson, JJ.): Agrees with majority’s treatment of the motion for a new trial and the statutory “in custody” argument. Agrees with the result on the remaining issue, but would find it unnecessary to overrule Cheeks  to hold LaPointe was ineligible to file motion for DNA testing.

STATUTES: K.S.A. 2017 Supp. 21-2512, -2512(a), -2512(f), -2512(f)(2), -2512(f)(2)(B)(iv), -6804, 22-3427(a), -3602(b)(3); K.S.A. 2000 Supp. 21-4704; K.S.A. 20-3018(b), 21-3410, -3427, 60-1507, -2101(b)

appeals—constitutional law—criminal procedure—Sixth Amendment
state v. moyer
sherman district court—affirmed
No. 105,183—February 15, 2019

FACTS: Moyer was convicted of sex crimes. On direct appeal, he claimed in part conflict of interest and ineffective assistance of defense counsel, who was also serving as guardian ad litem of J.T., a witness with potential exculpatory evidence who did not testify. He also claimed the district court judge should have recused because judge’s son was in the sheriff’s office, had secured and participated in Moyer’s arrest, and was listed as a prosecution witness. Instead, the district court judge banned any mention or reference to his son during the trial. Kansas Supreme Court reserved question of cumulative error and remanded to district court for hearing under State v. VanCleave, 239 Kan. 117 (1986), to determine whether Moyer was denied his Sixth Amendment right to counsel because the defense counsel’s concurrent representation of Moyer and J.T. created an adverse conflict of interest, and/or counsel’s failure to secure J.T.’s presence at trial or preserve J.T.’s testimony was deficient performance. 302 Kan. 892 (2015), as modified in 306 Kan. 342 (2017) (Moyer I). A different district court judge conducted the VanCleave hearing, finding defense counsel had a conflict of interest but Moyer was not prejudiced because the conflict had not adversely affected counsel’s representation. Alternatively, district court found the missing testimony would not have affected the verdict because J.T. was extremely unreliable and untruthful, and State’s evidence was overwhelming. Moyer appealed the VanCleave decision.

ISSUES: (1) Sixth Amendment right to counsel,—conflict of interest, (2) Sixth Amendment right to counsel—deficient performance, (3) cumulative error

HELD: Moyer’s argument for expanded scope of the remand and VanCleave hearing is rejected. Moyer’s constitutional right to effective assistance of counsel was implicated by defense counsel’s conflict of interest when J.T.’s testimony became difficult to secure, but Moyer failed to prove adverse effect. Various tests for proving adverse effect are examined and applied.

Moyer failed to establish that defense counsel’s performance with regard to J.T.’s testimony was deficient, and even if deficiency is assumed, no showing of prejudice.

Errors found in Moyer I are restated and considered with the additional error of defense counsel’s conflict of interest. In light of the overwhelming evidence of guilt, Court remains convinced that Moyer was not denied a fair trial.     

DISSENT (Rosen, J.): Adopts reasons stated in his dissent in Moyer I, as expanded by J. Malone’s dissent in this case.   

DISSENT (Johnson, J.): Cannot adopt majority’s holding that due to overwhelming evidence of guilt the cumulative effect of errors did not deny Moyer a fair trial. In this case there was a breakdown in the execution of duties by: trial judge with a conflict of interest, defense counsel with conflict of interest, and prosecutor’s gross and flagrant misconduct. This level of unfairness cannot be condoned even if there is unquestionable guilt. Would reverse and grant a new trial that is correct and fair.

DISSENT (Malone, J.): Agrees a new trial is required, free of numerous serious errors and conflicts, and adopts J. Rosen’s dissent in Moyer I. Focusing on the most egregious error, concludes the district judge’s conflict of interest substantially prejudiced Moyer and denied him a fair trial. Would reverse and grant a new trial before a different judge.  

STATUTE: K.S.A. 60-455

 

Kansas Court of Appeals

CIVIL

EVIDENCE—WORKERS COMPENSATION
WOESSNER V. LABOR MAX STAFFING
WORKERS COMPENSATION BOARD—REFERSED AND REMANDED
NO. 119,087— FEBRUARY 15, 2019

FACTS: Woessner died after being injured at work. While he was at the hospital for treatment a urine sample was obtained, which tested positive for THC. A follow-up sample was similarly positive. The employer introduced at the regular hearing lab results from both labs. Woessner's counsel objected on hearsay and foundation grounds, but those objections were denied. Admission of evidence showing drugs in Woessner's system triggered the statutory presumption that he was impaired at the time of his accident, excusing his employer from providing compensation to his widow. After the widow appealed, the Board reversed, finding that the lab results were not admissible. Moreover, the Board concluded there was no evidence that Woessner was impaired at the time of the accident. The employer appealed.

ISSUE: (1) Admissibility of lab results

HELD: The Kansas Rules of Evidence do not apply in workers compensation cases. This means that hearsay evidence is often allowed, although there is a threshold question about whether the hearsay evidence is reliable. The Board made a legal error when it found that the sample sent for verification was "collected by an employer". It wasn't; it was taken by hospital personnel. The employer presented ample evidence that the lab results were reliable. The employer introduced sufficient evidence to trigger the presumption that Woessner was impaired. The burden then shifts to his widow to prove by clear and convincing evidence that the impairment did not contribute to his death. The Board did not make sufficient findings about this burden to allow for review. The case must be remanded so that the Board can fully consider all relevant evidence.

DISSENT (Green, J.): The Board correctly interpreted K.A.R. 51-3-5a(a) when it found that it excluded from consideration certain types of hearsay evidence.

STATUTES: K.S.A. 2017 Supp. 44-501(a)(1)(C), -501(b)(1)(C), -501(b)(1)(D), -501(b)(3), -501(b)(2), -501(b)(3),  -515, -516, -523(a), -534a, -534a(a), -555c(a), 60-460(m); K.S.A. 44-519, 77-524(a)

 

IMPLIED EASEMENTS—ESTOPPEL
DEBEY V. SCHLAEFLI
OSBORNE DISTRICT COURT—AFFIRMED
NO. 119,218—FEBRUARY 15, 2019

FACTS: DeBey and the Schlaefli own adjoining tracts of land. DeBey operates a seed business from his tract, and traffic is often heavy. At the time DeBey purchased the land, both parties believed the tracts were separated by a dirt path. A later survey showed that was an incorrect assumption. Schlaefli's tract stretches farther to the east than first believed, to include the driveway that customers use to reach DeBey's seed business. Schlaefli attempted to build a fence to stop traffic from using the driveway. The district court found there was an implied easement by reservation or grant allowing continued traffic to DeBey's seed business. Schlaefli appealed.

ISSUES: (1) Implied easement by reservation or grant; (2) easement overburden; (3) easement by estoppel; (4) attorney fees

HELD: An implied easement by reservation or grant is based on the intent of the parties and what expectations one party could reasonably foresee the other party had from the sale of land. In this case, a quasi-easement existed from the time the tracts were developed. DeBey gained that quasi-easement when he bought the property from Schlaefli. Schlaefli knew that DeBey intended to expand his business, making the increased traffic foreseeable at that time. There is substantial competent evidence to support a finding of equitable estoppel. Schlaefli knew DeBey's business was expanding and made no objections to the increased traffic, even though he unquestionably knew about it. Schlaefli is not entitled to attorney fees because the district court's decision was correct.

STATUTE: K.S.A. 68-117

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February 8, 2019 Digests

Posted By Administration, Monday, February 11, 2019

Kansas Supreme Court

criminal

constitutional law—criminal procedure—motions—sentences—statutes
state v. donahue
sedgwick district court—affirmed
No. 116,564—february 8, 2019

FACTS: Donahue filed a motion to correct an illegal sentence to challenge his 1974 life sentence with possibility of parole as violating the Eighth Amendment, arguing Miller v. Alabama, 567 U.S. 460 (2012), applicable to juveniles sentenced to life without possibility of parole, should be extended to his life sentence with the possibility of parole. District court summarily dismissed the motion.

ISSUE: Motion to correct an illegal sentence

HELD: District court’s decision was affirmed. Donahue’s Eighth Amendment claim does not implicate the sentencing court’s jurisdiction, and Kansas Supreme Court has repeatedly held a motion to correct an illegal sentence under K.S.A. 22-3504 cannot raise claims that the sentence violates the United States Constitution. 

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3601(b)(3); K.S.A. 22-3504, -3504(1); K.S.A. 1973 Supp. 21-3421, -4501(a), 22-3717(2)

 

Kansas Court of Appeals 

Civil

TIME LIMITATIONS—WORKERS COMPENSATION
SCHNEIDER V. CITY OF LAWRENCE
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 119,340—FEBRUARY 8, 2019

FACTS: On two occasions, two years apart, Schneider injured his back while working as a firefighter. Schneider filed an application for hearing more than five years after the second injury. The City moved to deny the applications as untimely. Schneider responded that the application was timely because the City provided authorized medical care in 2012 and again in 2015, just a few weeks before the application was filed. The ALJ denied Schneider's claim as time-barred and the Board affirmed. Schneider appeals.

ISSUE: (1) Timeliness of Schneider's claims

HELD: The Graham case, decided in 1936, held that a statute of limitations cannot be revived by an employer's voluntary compensation once the time to file a claim has passed. But K.S.A. 44-534(b), the statute which applied to Schneider's claim, merely requires that an application be filed within two years of the employer's last compensation payment even if that payment was not voluntary. The Board read ambiguity into the statute where none existed. The legislature could have codified Graham during the overhaul of the workers compensation statutes but chose not to. Schneider's application was timely filed, and this case is remanded.

STATUTE: K.S.A. 44-520a, -534(b)

 

DISMISSAL—WORKERS COMPENSATION
GREEN V. GENERAL MOTORS CORP.
WORKERS COMPENSATION BOARD—REVERSED AND REMANDED
NO. 119,044—FEBRUARY 8, 2019

FACTS: Green suffered repetitive-use injuries at his job. He filed a claim for workers compensation benefits in 2009. Green had multiple preliminary hearings and actively sought both treatment and temporary benefits. But the case never progressed to a final hearing. In 2017, General Motors filed a motion to dismiss for lack of prosecution, citing K.S.A. 2008 Supp. 44-523(f). The ALJ granted the motion, and a majority of the Workers Compensation Board affirmed. Green appealed.

ISSUE: (1) Proper version of K.S.A. 44-523 to apply

HELD: The amendments to K.S.A. 44-523 are procedural and applied retroactively. The Board erred by using the 2008 version of the statute when addressing Green's claim. The 2017 version of K.S.A. 44-523(f) requires the employer to request dismissal for lack of prosecution. The ALJ must then notify the claimant and set the matter for a hearing. This is very different from the 2008 statute, which mandated dismissal if finality is not reached within a certain time. Because Green did not receive the hearing to which he is entitled by statute, the case must be remanded. On remand, the Board must provide Green with an appropriate forum and determine whether dismissal is warranted.

STATUTES: K.S.A. 2017 Supp. 44-523(f)(1), -534a, 60-241(b)(1), 77-621(c)(4); K.S.A. 2008 Supp. 44-523(f)

 

HABEAS CORPUS—JURISDICTION
PONDS V. STATE
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 119,057—FEBRUARY 8, 2019

FACTS: Ponds was convicted of multiple felony charges in 2009. His conviction was affirmed on direct appeal. In 2017, Ponds filed a K.S.A. 60-1507 motion which raised issues that had been adversely decided on direct appeal. The district court summarily denied the motion. Ponds filed a timely motion for reconsideration, but before a decision was announced, he filed a notice of appeal. The district court denied the motion to reconsider, and Ponds did not file a second notice of appeal.

ISSUES: (1) Jurisdiction; (2) whether Ponds was entitled to a hearing on his motion

HELD: The appellate court only has jurisdiction over a final decision. K.S.A. 60-2103(a) requires the notice of appeal to be filed within 30 days of a final decision. That did not happen here, but Ponds filed a timely motion to reconsider which tolled the time in which to file a notice of appeal. Ponds' notice of appeal was premature because it was filed before the district court ruled on the motion to reconsider, and the denial of Ponds' motion was not announced from the bench. And Ponds did not file a second notice of appeal after the motion was denied. Case precedent shows that the appellate courts have taken an expansive reading of Supreme Court Rule 2.03 and applied it to situations like this. Under that precedent, the court has jurisdiction to consider the denial of Ponds' K.S.A. 60-1507 motion but lacks the authority to review the denial of the motion to reconsider. The claims raised in Ponds' K.S.A. 60-1507 motion are identical to the issues from his direct appeal. Any attempt to relitigate these issues is barred by the doctrine of res judicata.

STATUTES: K.S.A. 2017 Supp. 60-259(f), -2102(a)(4), -2103(a); K.S.A. 60-1507

 

criminal: 

criminal law—criminal procedure—evidence—juries—
jury instructions—motions—statutes
state v. shay
miami district court—affirmed in part, reversed in part, remanded
No. 118,303—february 8, 2019

FACTS: Shay was convicted of rape and aggravated criminal sodomy. On appeal, he claimed both convictions should be reversed because the State presented insufficient evidence the victim was unconscious or physically powerless, one of the alternative means of committing both charges. He also claimed the district court erred in overruling his objection to jury instructions that discouraged jury’s power of nullification. 

ISSUES: (1) Sufficient evidence of alternative means—rape, (2) sufficient evidence of alternative means—aggravated criminal sodomy, (3) jury instructions on nullification

HELD: Rape conviction was affirmed. Direct evidence the victim was sleeping when the rape occurred is sufficient evidence that Shay raped the victim while she was unconscious or physically powerless. 

            Aggravated criminal sodomy conviction is reversed. No evidence that Shay committed this act while the victim was sleeping, and victim’s testimony of being too scared to move does not satisfy statutory element that the crime was committed while she was unconscious or physically powerless.  State v. Parker, 48 Kan.App.2d 68 (2012), is factually distinguished. Remanded for new trial only on alternative means supported by sufficient evidence in the first trial—that this crime was committed while victim was overcome by force or fear. Double jeopardy bars retrial on alternative means that crime was committed while victim was unconscious or physically powerless.

            District court did not err in overruling Shay’s requested instructions. District court’s reasonable doubt instruction did not sidestep holding in State v. Smith-Parker, 301 Kan. 132 (2014), and no instruction to the jury came too close to directing a verdict for the State.

STATUTE: K.S.A. 2017 Supp. 21-5504(b)(3)

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February 1, 2019 Digest

Posted By Administration, Monday, February 4, 2019

Kansas Court of Appeals

 

Civil

 

DIVORCE—MILITARY PAY
IN RE MARRIAGE OF BABIN
DICKINSON DISTRICT COURT—REVERSED AND REMANDED
NO. 119,099—FEBRUARY 1, 2019

FACTS: Nickey and Roslyn married in 1994. For almost their entire marriage Nickey was an active-duty service member. After both spouses filed for divorce, they agreed to mediate. That mediation resulted in a property settlement agreement which, in part, gave Roslyn 43% of Nickey's military retirement and disability pay. The district court issued a divorce decree but postponed a final property settlement agreement after disagreements arose. Specifically, Nickey claimed that the district court lacked the authority to divide his military disability pay. The district court disagreed and ruled that Nickey was bound by the mediation agreement. He appealed.

ISSUE: (1) Divisibility of military disability benefits

HELD: There are federal laws which pre-empt state courts from treating military disability pay as community property subject to division. These laws are strictly construed, most recently by the United States Supreme Court in Howell v. Howell, 581 U.S. __ (2017). For this reason, the district court could not force Nickey to contract away his disability pay and the property settlement agreement must be vacated. On remand, the district court may consider the financial impact of the disability pay when dividing assets and ordering spousal support.

STATUTE: 10 U.S.C. § 1408, § 1408(a)(4)(A) (2016)

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January 25, 2019 Digests

Posted By Administration, Monday, January 28, 2019

Kansas Supreme Court

Attorney Discipline 

SIX-MONTH SUSPENSION
IN RE TAMMIE E. KURTH
NO. 118,944—JANUARY 25, 2019

FACTS: As part of a diversion agreement, Kurth stipulated to violations of KRPC 1.3 (diligence), 1.4(a) (communication), 1.5(a) (fees), and 1.16 (d) (termination of representation). Kurth was unable to successfully complete the diversion. In general, Kurth did not dispute the legal conclusions on these violations, but she did contest the recommended discipline of suspension. Kurth abruptly left her practice in order to care for her adult daughter who became ill and later died. This left her clients without representation during the absence.

HEARING PANEL: The hearing panel found evidence to support all charged disciplinary violations. It considered several aggravating factors including Kurth's inability to complete the diversion. The hearing panel also heard the mitigating factors of Kurth's physical and mental health and her use of prescription medication. The panel had no doubt that Kurth's mental disability contributed to the misconduct. But she showed no sustained recovery, and there was expert testimony that her medication could make it difficult for her to practice law. Kurth strenuously objected to the hearing panel evaluating her fitness to practice. However, a majority of the panel noted both Kurth's history and her conduct at the hearing and concluded that she was not capable of representing clients. Accordingly, the panel proposed a two-year suspension.

HELD: The primary argument before the court centered on whether Kurth would be required to undergo a Rule 219(d) reinstatement hearing before being allowed to practice after a suspension. Kurth argued for discipline of published censure, claiming the hearing panel recommended harsher discipline than was warranted because of her unconventional appearance and communication style. Given the total weight of the evidence, the court imposed discipline of a 6-month suspension with the requirement that Kurth complete a Rule 219(d) reinstatement hearing before the suspension is lifted.

ORDER OF DISBARMENT
IN RE TIMOTHY J. GILLOT
NO. 119,909—JANUARY 25, 2019

FACTS: A hearing panel determined that Grillot violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.5 (fees), 1.15 (safekeeping property), 1.16(d) (termination of representation), 3.3(a)(1) (candor toward tribunal), 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The misconduct centered on Grillot's failure to compete work for a client and for his misappropriation of funds from an estate.

HEARING PANEL: The hearing panel noted that Grillot misappropriated funds over a period of time as part of multiple rule violations. There were mitigating factors in the form of Grillot's mental health and the illnesses of various family members. Grillot also paid restitution to the estate and fully cooperated with the disciplinary process. The disciplinary administrator recommended that Grillot be disbarred. Grillot asked for a one-year suspension. A majority of the hearing panel recommended an indefinite suspension.

HELD: The hearing panel's findings were deemed admitted. The court agreed with the disciplinary administrator that disbarment was the appropriate discipline.

criminal

criminal procedure—motions—sentences—statutes
state v. jamerson
shawnee district court—affirmed in part, vacated in part, remanded
court of appeals—affirmed in part, reversed in part
nO. 115,629—january 25, 2019

FACTS: Jamerson was convicted of second-degree murder, robbery and conspiracy to commit robbery. Sentence imposed included aggravated robbery sentence to run consecutive to second-degree murder sentence, and the conspiracy sentence to run concurrent with both. He filed a motion to correct an illegal sentence arguing district court used an incorrect criminal history score in sentencing for second-degree murder. District court agreed and also noticed Jamerson’s criminal history had been erroneously applied to non-base sentences of aggravated robbery and conspiracy. District court addressed all three errors at resentencing and ordered all sentences to run consecutive. Jamerson appealed, arguing district court lacked jurisdiction to modify the unchallenged aggravated robbery and conspiracy sentences. In unpublished opinion, court of appeals concluded the resentencing court had jurisdiction to modify the conspiracy sentence, but lacked jurisdiction to resentence for aggravated robbery, and lacked jurisdiction to deviate from the original sentence by making the conspiracy sentence run consecutive. State’s petition for review was granted.

ISSUE: Correcting a sentence in a multi-conviction case

HELD: State v. Guder, 293 Kan. 763 (2012), and State v. Morningstar, 299 Kan. 1236 (2014), apply to resentencing based on a motion to correct an illegal sentence. When one or more sentences in a multi-conviction case is illegal under K.S.A. 22-3504, district court may only correct the illegal sentence(s). The district court must vacate the illegal sentence and correct it by resentencing in accord with the Kansas Sentencing Guidelines Act (KSGA), but lacks authority to resentence anew for all convictions in a multiple conviction case. In this case, district court erred in increasing the legal aggravated robbery sentence, but had authority to resentence the illegal sentences for second-degree murder and conspiracy.  This included the authority to order the conspiracy sentence to run consecutive to the others. Reversed and remanded for reinstatement of the original sentence for aggravated robbery.

CONCURRENCE AND DISSENT (Johnson, J., joined by Beier, J.): In conformance with Guder, agrees that the district court erred when it modified the original sentence for aggravated robbery because that sentence was legal and not subject to correction. Also agrees that when district court discerned the original sentences for second-degree murder and conspiracy were illegal, it had authority under K.S.A. 22-3504(1) to correct the illegality. Disagrees that K.S.A. 22-3504(1) invests a district court with discretion to modify the legal portions of a previously imposed sentence. Majority’s incorporation of the entire KSGA into a plainly worded statute is contrary to basic statutory construction concepts. In changing concurrent conspiracy sentence to a consecutive sentence, district court was exercising discretion only available for sentencing under KSGA. Would hold the district court erred in resentencing Jamerson to serve his conspiracy sentence consecutively.

STATUTES: K.S.A. 2017 Supp. 21-6606(a), -6606(c), -6801 et seq., -6802, -6819; K.S.A. 21-4608, -4701 et seq., -4720, -4720(b), -4720(b)(5), 22-3504, -3504(1), 60-2101(b) 

Kansas Court of Appeals

Civil

LEGAL MALPRACTICE
POWER CONTROL DEVICES, INC. V. LERNER
JOHNSON DISTRICT COURT—AFFIRMED
NO, 117,705 – JANUARY 25, 2019

FACTS: PCD hired Lerner to represent it in a federal breach of contract action. The case involved highly technical design and engineering work. PCD sued a contractor for allegedly stealing intellectual property. At the time he was retained, Lerner knew that the statute of limitations would be an issue since Kansas' five-year limitation had already expired. Lerner filed suit in Massachusetts—the defendant's home state—because it has a six-year limit for breach of contract claims. The defendant argued that the breach of contract occurred earlier than Lerner contended. The district court agreed and granted the defendant's motion for summary judgment. The parties eventually settled the matter. PCD then filed a legal malpractice action against Lerner. After a trial, a jury found that Lerner was negligent for failing to provide timely legal services to PCD and that PCD's negligence action would have been successful but for the malpractice. Lerner filed a post-verdict motion for judgment as a matter of law. The motion was granted and the jury's verdict set aside after the district court determined that PCD failed to prove that the defendant breached the underlying contract. In the alternative, the district court also found that the jury instructions were improper and that PCD was not entitled to recover attorney fees spent in the underlying tort case. PCD appealed.

ISSUES: (1) Granting of judgment as a matter of law; (2) jury instruction on breach of contract

HELD: In order to prevail on its legal malpractice claim, PCD was required to prove that it would have prevailed in the underlying breach of contract claim. An attorney's opinion of the underlying case, or statements made by the attorney in pleadings, are not evidence of any of the claims made in the underlying lawsuit. PCD failed to present expert testimony in its malpractice case which left it without evidence to supports its claim. In the absence of that evidence, the judgment as a matter of law was appropriate. Lerner's work for PCD was, in effect, an employment contract. But there is no evidence that Lerner made an express promise to timely file suit. In the absence of an express contract, the district court properly refused to instruct the jury on PCD's breach of contract claims.

STATUTE: K.S.A. 2017 Supp. 60-456(a)

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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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January 8, 9 and 11, 2019 Digests

Posted By Administration, Tuesday, January 15, 2019

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN THE MATTER OF LAURENCE M. JARVIS
NO. 07012 – JANUARY 8, 2019

FACTS: In a letter addressed to the Clerk of the Appellate Courts, Laurence M. Jarvis voluntarily surrendered his license to practice law in Kansas. At the time of surrender, Jarvis' license was indefinitely suspended and he faced an additional formal hearing on allegations of misconduct.

HELD: The Court accepted the surrender of Jarvis' license and ordered that he be disbarred.

ORDER OF DISBARMENT
IN THE MATTER OF JOHN M. KNOX
NO. 119,254 – JANUARY 11, 2019 

FACTS: The Disciplinary Administrator filed a formal complaint against Knox which alleged violations of KRPC 1.1 (competence); 1.3 (diligence); 1.4(a) (communication); 1.5(d) (fees); 3.2 (expediting litigation); 4.1(a) (truthfulness in statements to others); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); 8.4(d) (engaging in conduct prejudicial to the administration of justice); (8.4)(g) (engaging in conduct adversely reflecting on a lawyer's fitness to practice law); and Rule 207(b) (failure to cooperate in a disciplinary action). The matter arose after Knox was retained to represent clients in a personal injury matter. He failed to perform any of the duties for which he was hired and failed to communicate with his clients. Knox failed to respond once the formal complaint was filed.

HEARING PANEL: The panel determined that although Knox failed to appear he was given appropriate service and notice of the formal hearing. There was adequate evidence to show that Knox committed the violations as alleged in the complaint. The hearing panel found a number of aggravating circumstances, including the vulnerability of the client and Knox's patterns of misconduct. Knox's failure to participate in the disciplinary proceeding meant there were no mitigating circumstances to consider. The Disciplinary Administrator recommended that Knox be disbarred and the hearing panel agreed.

HELD: Knox did not appear at the hearing before the Kansas Supreme Court. The court determined that there was clear and convincing evidence that Knox violated multiple rules of professional conduct. The Disciplinary Administrator continued to recommend disbarment and the court agreed. Knox is disbarred.

ORDER OF DISCHARGE FROM PROBATION
IN THE MATTER OF SUSAN L. BOWMAN
NO. 109,512 – JANUARY 9, 2019

FACTS: The court suspended Bowman's license to practice law in Kansas on October 18, 2013, for a period of 12 months. Bowman was required to undergo a reinstatement hearing prior to reconsideration being considered. After the hearing, Bowman was reinstated and placed on probation.  Bowman filed a motion for discharge from probation in November 2018, along with affidavits demonstrating compliance with the terms of probation. The Disciplinary Administrator did not object.

HELD: After reviewing the motions and affidavits, and the response of the Disciplinary Administrator, the court grants Bowman's motion for discharge from probation.

Civil

CONDEMNATION—STATUTORY INTERPRETATION
NAUHEIM V. CITY OF TOPEKA
SHAWNEE DISTRICT COURT – REVERSED and REMANDED
COURT OF APPEALS – AFFIRMED
NO. 114,271 – JANUARY 11, 2019

FACTS: The City of Topeka negotiated with business owners to purchase land in order to build a drainage system for city property. The negotiations resulted in the City's purchase of the property and the businesses' relocation without the use of eminent domain power. After the move, the business owners sued the City for relocation costs under K.S.A. 26-518, which allows for costs when real property is acquired by a condemning authority through negotiation in advance of a condemnation action. The City countered that it never intended to condemn the property and also noted that the business owners were not "displaced persons" under the statute because the property was actually owned by a landlord. The district court granted the City's motion for summary judgment, holding that the business owners were not displaced persons and that the property acquisition was not made in advance of a condemnation. On appeal, the Court of Appeals reversed, finding that the business owners were displaced persons. The panel remanded for further factual findings on the question of whether the purchase negotiations were conducted in advance of a condemnation. The business owners appealed the question of whether a displaced person must prove that a condemning authority threatened condemnation or took affirmative action towards condemnation prior to acquisition. That petition for review was granted. The City did not cross-petition on the Court of Appeals' other findings.

ISSUES: (1) Must a displaced person prove that a condemning authority had an intent to condemn in order to receive statutory relocation assistance

HELD: K.S.A. 26-518 requires a condemning authority to pay relocation costs when an acquisition occurs through negotiation before a condemnation action or when an acquisition actually occurs through condemnation. Nothing in the statute requires the City to pay relocation benefits as part of any public project. Whether a negotiation occurs "in advance of" a condemnation action is a question of fact that must be proven by a preponderance of the evidence.

STATUTES: K.S.A. 2017 Supp. 26-201, -501(a), -518, -518(a); K.S.A. 12-101, Second, -101, Fourth

CRIMINAL  

CRIMINAL PROCEDURE – DISCOVERY – MOTIONS – STATUTES
STATE V. ROBINSON
SEDGWICK DISTRICT COURT – AFFIRMED
No. 116,650 – JANUARY 11, 2019

FACTS: Robinson convicted of capital murder and other crimes.  Life prison term without parole imposed with a 247 additional months.  Convictions and sentence affirmed in direct appeal.  293 Kan. 1002 (2012).  He filed 2015 motion under K.S.A. 60-237 citing Brady v Maryland,373 U.S. 83 (11963) and Giglio v. United States, 405 U.S. 150 (1972), to compel exculpatory discovery of detective who had testified at his trial.  District court denied the motion finding no rule of criminal procedure allowing for such a motion, and the State had asserted there was no such information to produce.  Robinson appealed.

ISSUE: Postconviction Motion

HELD: District court’s decision is affirmed.  Nothing in K.S.A. 2015 Supp. 60-237 permits a postconviction motion to compel discovery in a criminal case.

STATUTES: K.S.A. 2015 Supp. 60-234, -237, -237(a)(1)-(3), -237(a)(3)(B)(iv)

CRIMINAL PROCEDURE – SENTENCES- STATUTES
STATE V. AYERS
WYANDOTTE DISTRICT COURT – AFFIRMED IN PART, VACATED IN PART, REMANDED
No. 117,654 – JANUARY 11, 2019

FACTS: Ayers convicted on guilty pleas to multiple felonies related to a murder.  Sentencing court imposed consecutive sentences consecutive to a life sentence without possibility of parole, and assessed BIDS fees.  Ayers appealed claiming the district judge failed to consider on the record Ayers’ ability to pay the assessed BIDS fees.  He also claimed the district judge abused its discretion by ordering most of the on-grid sentences to run consecutively to a life sentence with no possibility of parole.

ISSUES: (1) BIDS. Fees, (2) Sentences

HELD: Pursuant to State v. Robinson, 281 Kan. 538 (2006), the BIDS fee assessment must be vacated and case remanded for reconsideration of that fee.  Court rejects State’s argument that there is no additional fact-finding any court must do to resolve the issue of BIDS fess, and that the BIDS fee assessed was “unworkable” as found in restitution statute. 

No abuse of discretion in district court’s sentencing in this case.  Recognized purposes of sentencing go beyond pure incapacitation, and include retribution for Ayers’ other crimes.  Also, sentencing defendants to terms of imprisonment they are unlikely to serve is common. 

STATUTES: K.S.A. 2017 Supp. 21-6604(b)(1); K.S.A. 2005 Supp. 22-4513, -4513(b)

CONSTITUTIONAL LAW – CRIMINAL PROCEDURE – MOTIONS – STATUTES
STATE V. SAMUEL
WYANDOTTE DISTRICT COURT – AFFIRMED
No. 116,423 – JANUARY 11, 2019

FACTS: Samuel convicted of second-degree murder.  Nineteen years later, citing Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 136 S.Ct. 718 (2016), he filed motion to correct an illegal sentence and claiming his life sentence with mandatory 10-year terms violates the Eighth Amendment because he was 16 years old when he committed the crime.  District court summarily dismissed the motion, holding a motion to correct an illegal sentence was not a proper vehicle to challenge a sentence as unconstitutional.  Samuel appealed. 

ISSUE: Motion to Correct an Illegal Sentence

HELD: District court’s judgment is affirmed.  Samuel’s Eighth Amendment claims do not fit within the definition of an “illegal sentence.”  They do not implicate the sentencing court’s jurisdiction, and a motion to correct an illegal sentence under the statute cannot raise claims that the sentence violates a constitutional provision.

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3601(b)(3)-(4); K.S.A> 22-3504, -3504(1); K.S.A. 1996 Supp. 21-3402(a)

CONSTITUTIONAL LAW – EVIDENCE – FOURTH AMENDMENT – SEARCH AND SEIZURE
STATE V. DOELZ
LEAVENWORTH DISTRICT COURT – REVERSED AND REMANDED; COURT OF APPEALS – REVERSED
No. 113,165 – JANUARY 11, 2019

FACTS: Investigating a recent bank robbery by two black males, officer stopped vehicle in which Doelz was a passenger.  Officer seized a box he observed on the back seat.  When opened, the box contained a digital scale.  Methamphetamine then found in search of the vehicle.  Doelz arrested and convicted on drug charge.  He appealed, claiming district court erred in denying motion to suppress evidence obtained in an unlawful search.  Doelz argued in part:   (1) the investigatory detention was unlawfully extended once officer discovered all in the car were white males; (B) officer unlawfully seized the digital scale without a warrant or a valid exception to the warrant requirement; and (c) officer lacked probable cause to search the whole vehicle.  Court of Appeals affirmed in unpublished opinion. Doelz’s petition for review granted. 

ISSUE: Lawfulness of Vehicle Search

HELD: Under totality of the circumstances which included a report the bank robbery car was driven by a white male, reasonable suspicion for the investigatory detention was not unlawfully extended.  However, the search of the box retrieved from the backseat was unlawful.  Plain-view exception did not permit further search of the box without a warrant or another established exception.  Absent consideration of this alleged drug paraphernalia seized from the vehicle at the time of the stop, the remaining circumstances were insufficient to establish a fair probability the vehicle contained contraband.  District court thus erred in finding the automobile exception to the warrant requirement applied.  Panel’s decision to affirm the district court’s denial of the motion to suppress is reversed.  Matter is reversed and remanded for a new trial. 

STATUTES: K.S.A. 22-2402

Kansas Court of Appeals

Civil

DIVORCE – JUDGMENTS
IN RE MARRIAGE OF STROM
RILEY DISTRICT COURT—AFFIRMED
NO. 118,676—JANUARY 11, 2019 

FACTS: The Stroms married in 1986 and divorced in 1995. At the time of the divorce, Eric was retired from the military and was receiving military retirement benefits. In the property settlement agreement, Eric agreed to give Christina a portion of these retirement benefits. Although the agreement was incorporated into the divorce decree, Eric never made any of the required payments. Almost 22 years later, Eric moved to have the district court declare this division of his military retirement pay a void and unenforceable judgment. He claimed the judgment was dormant because Christina failed to file a renewal affidavit within five years of the divorce and did not revive the judgment within seven years of the divorce. Christina countered by moving to enforce and revive the judgment. The district court agreed with Christina and held that any payment due after September 1, 2010, was revived and enforceable. Eric appealed.

ISSUES: (1) Ability to revive the judgment

HELD: Because Eric and Christina were not married for 10 years, she was unable to file a QDRO and obtain direct payment from the military finance center. The only way the judgment could have been fulfilled was by direct payment from Eric. These payments had to be treated like monthly installment payments. As such, the dormancy period for each individual payment started when it became due and collectable. Christina can now execute on the last five years of judgments and can revive the judgments for the two years preceding that.

DISSENT: (Buser, J.) Christina had an obligation to attempt to enforce her judgment. Because she didn't, the judgment is unenforceable and should be extinguished.

STATUTES: K.S.A. 2017 Supp. 60-2403, -2403(a)(1), -2403(c)

EQUITY – JURISDICTION – WATER RIGHTS
GARETSON BROTHERS V. AMERICAN WARRIOR, INC.
HASKELL DISTRICT COURT – AFFIRMED IN PART, DISMISSED IN PART
NO. 117,404 – JANUARY 11, 2019

FACTS: Garetson Brothers owns water rights in Haskell County. It sought injunctive relief to prevent American Warrior, Inc. – the nearest junior rights holder – from impairing its water right. A referee found that American Warrior was substantially impairing Garetson's senior right and entered a temporary and then a permanent injunction prohibiting American Warrior from exercising its junior water rights. American Warrior appealed.

ISSUES: (1) Subject matter jurisdiction; (2) scope of the notice of appeal; (3) grant of permanent injunction

HELD: The amendments to K.S.A. 82a-716 and -717, which require a party to exhaust administrative remedies before seeking an injunction, did not apply retroactively in this matter. The court has subject matter jurisdiction to hear the merits of this appeal because American Warrior was not required to exhaust administrative remedies. In this civil case, the court only has jurisdiction to consider rulings which were specifically listed in the notice of appeal. The notice of appeal did not contain any "catch-all" language that would permit the court to consider additional rulings. A senior water right is still impaired even if the right holder has permission to pull water from a third party. There is no requirement that economic conditions be considered when determining whether a senior rights holder's usage is impaired. There is no evidence that Garetson had unclean hands in its prior water usage.

STATUTES: K.S.A. 2017 Supp. 60-102, -2103(b), 82a-701(d), -716, -717a; K.S.A. 82a-711(c), -716, -717a, -725

Tags:  8802  Attorney Discipline  Haskell District  Leavenworth District  Riley District  Sedgwick District  Shawnee District  Weekly20190115  Wyandotte District 

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