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February 6, 2015, Digests

Posted By Administration, Monday, February 9, 2015
Updated: Thursday, February 13, 2020

Kansas Court of Appeals


NO. 110,673 – FEBRUARY 6, 2015

FACTS: Crabb appeals his conviction of one count of interference with law enforcement for running from a police officer while Crabb was outside of the area of his parole without permission. Crabb claims the district court committed reversible error by using what is commonly known as the "hot-box" method of jury selection over Crabb's objection instead of using the statutory method of jury selection set forth in K.S.A. 22-3411a. He also argues that the district court erred in instructing the jury and that he was denied a fair trial based on prosecutorial misconduct and cumulative error.

ISSUES: (1) Jury selection; (2) jury instructions; (3) prosecutorial misconduct; and (4) cumulative error

HELD: Court reversed Crabb's conviction based on the hot-box jury selection issue. Court held the hot-box method as opposed the method outlined in K.S.A. 22-3411a is erroneous because it requires counsel to exercise their peremptory challenges piecemeal rather than in comparison to the entire panel and after the parties have exercised all peremptory challenges and the final juror is seated in the jury box, that final juror may only be removed for cause. Court also stated the State failed to persuade the court that the error was harmless or make an affirmative showing that the jury selection error did not affect Crabb's substantive rights. Court did not address Crabb's other issues.

STATUTES: K.S.A. 22-3411a, -3412; and K.S.A. 60-261

Tags:  2015  cumulative error  juries  jury instructions  jury selection  prosecutorial misconduct  Shawnee District Court 

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January 30, 2015, Digests

Posted By Administration, Tuesday, February 3, 2015
Updated: Thursday, February 13, 2020

Kansas Supreme Court


NO. 105,643 – JANUARY 30, 2015

FACTS: This case involves an action by shareholders in a Kansas irrigation corporation against the president of the corporation (Knoll), alleging breach of a fiduciary duty and seeking removal of the president as an officer and director. The Kansas Supreme Court affirmed the Court of Appeals determination that the plaintiffs had made a prima facie case but reversed on the question of whether the facts supported judgment for the defendant. Holding that the courts below had applied incorrect legal standards, this court remanded the case to the district court so that it could reapply the law to the facts before it on the record. On remand, the district court again ruled for the defendant. The court held that Knoll engaged in no self-dealing, no misfeasance, and no malfeasance to the detriment of the corporation. The plaintiffs again appealed to the Court of Appeals. The Court of Appeals reversed, holding that Knoll's failure to maintain employment records undermined his position to such an extent that, as a matter of law, he acted in bad faith. The Court of Appeals remanded the case to the district court for determination of damages.

ISSUES: (1) Breach of fiduciary duty; and (2) clear and convincing evidence

HELD: Court held the district court applied the correct standards, which were supported by the evidence, and the Court of Appeals erroneously reversed the district court. Court found Knoll provided evidence that a rational fact-finder could apply to overcome the inference that the missing written data would be adverse to him. The Court of Appeals rejected or ignored the explicit testimony that Morehouse, the corporation's ditch rider, worked far more than the required 40 hours a week. In so doing, the Court of Appeals may have implied that the adverse inference rule is an absolute rule: Knoll's failure to keep hourly records constituted per se proof that Morehouse did not work the required number of hours and that Knoll acted in bad faith detrimental to the corporation. Or the Court of Appeals may have reevaluated Knoll's and Morehouse's testimony and concluded that the testimony was inadequate to overcome the inference of bad faith. Either approach is incorrect. The former analysis is wrong because the adverse inference rule establishes a method of supporting a claim, not a form of strict liability. The failure to produce a record under the party's control does not establish a breach of duty in itself. Knoll introduced substantial, credible evidence tending to show that he did not breach his duty. The latter analysis—which would be based on the quality of the evidence—is also wrong because it requires the appellate court to reweigh the evidence. The testimony regarding the number of hours that Morehouse worked was quite explicit, and the district court explained why it found that evidence credible. The district court properly carried out the task assigned to it on remand, and the Court of Appeals applied an incorrect standard of review. The opinion of the Court of Appeals is reversed. The decision of the district court is affirmed.

STATUTES: No statutes cited


NO. 104,940 – JANUARY 30, 2015

FACTS: Officer stopped vehicle driven Molitor and conducted DUI investigation. Molitor failed horizontal gaze nystagmus (HGN) test, passed walk-and-turn and one-leg-stand tests, and then consented to officer’s request for a preliminary breath test (PBT). PBT results led to Molitor’s arrest and conviction for DUI. In appeal to district court, Molitor filed motion to suppress HGN results as inadmissible pursuant to State v. Chastain265 Kan. 16 (1998)and State v. Witte, 251 Kan. 313 (1992). District court denied the motion, ruling HGN results could be admitted to establish officer’s reasonable suspicion of DUI even though the results were inadmissible at trial. Waggoner appealed. Court of Appeals affirmed that HGN test could be considered as part of totality of circumstances in determining whether officer had requisite reasonable suspicion to request a PBT, and held the officer had enough other evidence to form a reasonable suspicion of DUI even if HGN test results were excluded. 46 Kan. App. 2d 958 (2012). Supreme Court granted Waggoner’s petition for review in which he argued the Frye reliability test had to be met before HGN test results could be used for any purpose, and sought review of panel’s determination that reasonable suspicion existed without considering the HGN test results.

ISSUES: (1) Admissibility of horizontal gaze nystagmus test results; and (2) harmless error

HELD: The HGN test is based on scientific principles. Before HGN test results may be considered by a Kansas court for any purpose, state must establish the reliability of such a test in district court. Here, district court and Court of Appeals erred in allowing state to rely on scientifically unproved HGN test results to establish reasonable suspicion that permitted officer to request that Molitor submit to a PBT pursuant to K.S.A. 2010 Supp. 8-1012(b).

Reviewing facts other than HGN test results in this case, the consideration of HGN testing was not harmless error. An appellate court should not deviate from criteria and scoring of National Highway Traffic Safety Administration’s standardized testing model to glean reasonable suspicion of driving under the influence from driver’s successful completion of standardized field sobriety tests. Determinations by district court and Court of Appeals, that officer possessed the requisite reasonable suspicion that Molitor was operating vehicle while under influence of alcohol when officer requested that Molitor submit to a PBT, are reversed.

CONCURRENCE AND DISSENT (Biles, J.) (joined by Nuss, C.J., and Rosen, J.): Agrees with majority’s holding that it was error to allow state to rely on HGN test results to establish reasonable suspicion for officer’s request for a PBT because state has not established test’s reliability as required by Witte. Disagrees with majority’s harmless error analysis, and would affirm Court of Appeals on this point and affirm the conviction. Majority is setting reasonable suspicion standard too high. Officer in this case observed evidence indicating impaired driving and intoxication, and was justified under the statute to request the PBT.

STATUTES: K.S.A. 2014 Supp. 60-456(b); K.S.A. 2010 Supp. 8-1012(b), -1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 8-1567(a)(1); K.S.A. 20-3018(b); K.S.A. 60-402, -456, -2101(b); and K.S.A. 8-1012 (Furse)

Kansas Court of Appeals


NO. 110,883 – JANUARY 30, 2015

FACTS: Moore injured his knee at his road-construction job, either when he stepped off a backhoe or shortly thereafter when walking around the backhoe. An administrative law judge denied his request for workers compensation, finding that his injury was the result of walking, which she considered a normal activity of day-to-day living not covered by the Workers Compensation Act. The Workers Compensation Appeals Board reversed, finding that Moore's injury arose out of and in the course of his employment because stepping down and walking around the backhoe were part of a single job task—operating a backhoe—that was not a normal activity of day-to-day living.

ISSUES: (1) Workers compensation and day-to-day living

HELD: Court held the case law interpreting the pre-2011 version of the Kansas Workers Compensation Act remains applicable when determining whether a worker's injury arose out of and in the course of employment or was the result of the normal activities of day-to-day living. Under Bryant v. Midwest Staff Solutions Inc., 292 Kan. 585, 596, 257 P.3d 255 (2011), in determining whether an injury arose out of the course of employment, the primary question is whether the activity that resulted in the injury is connected to, or is inherent in, the performance of the job. Court found that substantial evidence supported the Board's finding. In this case, operating the backhoe was Moore's job duty, stepping down from and walking around the backhoe was part of the work required to operate the backhoe, and no evidence suggested that Moore's injury happened outside the time frame in which he was operating the backhoe. We therefore affirm the Board's decision that Moore's injury was covered under the Workers Compensation Act and not the result of a normal activity of day-to-day living.

STATUTES: K.S.A. 44-508, -556; and K.S.A. 77-621


NO. 111,548 – JANUARY 30, 2015

FACTS: Waggoner convicted of possession of methamphetamine and marijuana. On appeal he claimed district court erred in classifying an April 1993 Kansas juvenile adjudication as a person felony for criminal history purposes. Waggoner argued the holding in State v. Murdock, 299 Kan. 312 (2014), that out-of-state convictions committed prior to enactment of Kansas Sentencing Guidelines Act (KSGA) must be classified as nonperson offenses, applies to in-state pre-KSGA convictions as well.

ISSUES: (1) Criminal history score and pre-KSGA Kansas convictions

HELD: Murdock and State v. Williams, 291 Kan. 554 (2010), are discussed. As modified by Supreme Court order September 19, 2014, Murdock is limited to classification for criminal history purposes of out-of-state convictions committed prior to enactment of KSGA. Under facts in this case, district court did not err in classifying Waggoner’s prior Kansas juvenile adjudication of attempted aggravated battery as a person felony for criminal history purposes.

STATUTES: K.S.A. 2014 Supp. 21-6804(c), -6809, -6810(d)(6), -6811(e), -6811(g); K.S.A. 21-4710 et seq.-4710(d)(8), -4711(e); and K.S.A. 21-3301(c)(3), -3414 (Ensley 1988)

Tags:  breach of fiduciary duty  criminal history score  Douglas District Court  Finney District Court  HGN  horizontal gaze nystagmus  pre-KSGA  Sedgwick District Court  test results  Workers Compensation 

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January 23, 2015, Digests

Posted By Administration, Tuesday, January 27, 2015
Updated: Monday, February 10, 2020

Kansas Supreme Court


NO. 107,401 – JANUARY 23, 2015

FACTS: In 2007, Kaelter sued her long-time boyfriend, Sokol, seeking determinations of paternity, custody, and support; and an equitable division of the parties' jointly acquired assets. The parties have hotly contested these issues and others at every turn. After Kaelter filed suit, the district court referred the matter to a special master, who made findings of fact and conclusions of law without conducting formal hearings. Over Sokol's objection, the district court adopted those findings and conclusions and entered judgment on the master's report without hearing evidence. The judgment included an order that Sokol pay Kaelter a sum representing the minor child's unreimbursed medical expenses. On the parties' motions for reconsideration, the district court entered additional orders, including its decision to make its own determination regarding the unreimbursed medical expenses. Sokol appealed, arguing about the district court's refusal to hold an evidentiary hearing; the master's failure to conduct proceedings in accordance with K.S.A. 60-253 (setting out procedure for trial by special masters); and whether Sokol timely appealed based on whether various motions for reconsideration filed with the district court after each of its rulings tolled the time to appeal. The Court of Appeals held that Sokol failed to timely appeal portions of the judgment but could pursue one issue relating to the failure of the master to take an oath. The panel then affirmed the district court's order, ruling Sokol failed to exercise reasonable diligence to object when he first learned the master did not take an oath while the master was still working on the case. Kaelter, 2013 WL 1876444, at *8. After the panel filed its opinion, it granted Kaelter's request for appellate costs and attorney fees.

ISSUES: (1) Jurisdiction; and (2) final decision

HELD: Court stated the jurisdictional issue arises because the district court's written journal entry memorializing the additional orders, filed October 27, 2010, indicated the district court could not at that time "determine an appropriate division of past medical expenses" due to a lack of sufficient documentation. The journal entry further stated the district court anticipated the filing of a future motion for those unreimbursed medical expenses and an exchange of information between the parties in the hope that a resolution could be reached. Court found the record on appeal does not show the issue was ever resolved before Sokol initiated this appeal. Court held the district court did not enter a final decision, having left unresolved the unreimbursed medical expenses issue. Therefore, the Court of Appeals lacked jurisdiction. For that reason, the judgment of the Court of Appeals affirming the district court is vacated. Court applied the same rationale and vacated the panel's order awarding costs and attorney fees to Kaelter, which Sokol challenged in his briefing as an abuse of discretion.

STATUTES: K.S.A. 20-3018; K.S.A. 23-2216; and K.S.A. 60-253, -2102

Kansas Court of Appeals


NO. 111,253 – JANUARY 23, 2015

FACTS: With the approval of the birth mother, John and Anne sought to adopt a baby girl born in Wichita on December 31, 2012. The girl's natural father, Lonnie, did not agree to relinquish his parental rights, but the district court terminated his parental rights and granted John and Anne's adoption petition after a contested, one-day trial. The court concluded that Lonnie had failed without reasonable cause to provide support for the birth mother during the 6-month period before the child's birth, that he was unfit as a parent, that he had abandoned the mother after learning of the pregnancy, and that he had made no reasonable efforts to support the child after her birth. Before trial, the court had found that Lonnie was partially indigent and had ordered that he pay $500 toward his attorney's fees. Lonnie paid $100. Lonnie's attorney, Eric Hartenstein, presented a total bill to the court of $5,622.77. That amount reflected Lonnie's $100 payment; it also included expenses of $262.77 ($105 for serving court papers and $157.77 for a deposition transcript). The rest of the bill reflected Hartenstein's time spent on the case at $150 per hour. John and Anne argued in the district court that Hartenstein should be limited to $80 per hour based on the fee paid in criminal cases. The district court concluded that it had the discretion to award that or a higher amount, and awarded $5,360 in fees and $262.77 in expenses.

ISSUES: (1) Adoption; (2) termination of parent rights; and (3) attorney fees

HELD: Court held fee award in this case was authorized by K.S.A. 59-2134, which has no language limiting the court's discretion in determining the proper amount of the attorney fees. Court stated that K.S.A. 22-4507, which applies only to attorneys appointed to represent indigent criminal defendants, does not set a limit on fees in other type of cases. Court similarly awarded attorneys fees and expenses against John and Anne for the work performed on appeal in the amount of $3,853.02

STATUTES: K.S.A. 22-4507; and K.S.A. 59-2134


NO. 110,435 – JANUARY 23, 2015

FACTS: Pearce, with four previous burglary convictions that included one person-felony conviction for residential-burglary, entered guilty plea to a fifth burglary. Sentencing court accepted Pearce’s argument that K.S.A. 2013 Supp. 21-6810(d)(9) and rule of lenity prevented the court from counting the prior residential burglary when calculating Pearce’s criminal-history score. State appealed on question reserved.

ISSUES: (1) State’s appeal of criminal history score of recidivist burglar

HELD: Statutes controlling this case are K.S.A. 2013 Supp. 21-6804(l) (the recidivist-burglar provision) and K.S.A. 2013 Supp. 21-6810(d)(9) (the exclusion of some convictions when scoring a defendant’s criminal history). District court erred when it excluded one of Pearce’s burglary convictions in determining the criminal-history score because none of the conditions for exclusion are met in this case. State v. Zabrinas, 271 Kan. 422 (2001), is distinguished as applying K.S.A. 21-6804(l) before legislature eliminated the "applicable penalties” language in 2010. Answer in this case is of statewide importance. No appellate decisions discuss the elimination of the "applicable penalties” language in K.S.A. 21-6804(l), and this opinion alerts bench and bar that these cases - decided based on statutory language no longer in place - may no longer be good law. States appeal is sustained.

DISSENT (Atcheson, J.): Dissents from majority’s decision to entertain the matter at all because State’s appeal fails to present a legal question of statewide interest or importance. Parties in this case argue the question reserved as if K.S.A. 2013 Supp. 21-6810(d)(9) had never been amended, and seek a ruling on how to construe language the legislature repealed in 2010. Would dismiss the appeal for lack of jurisdiction.

STATUTES: K.S.A. 2013 Supp. 21-5807(a)(1), -5807(c)(1)(A), -6804(a), -6804(l), -6809, -6810(d)(9); K.S.A. 2013 Supp. 22-3602(b)(3); K.S.A. 21-4710(d)(11); and K.S.A. 2009 Supp. 21-4704(1)

Tags:  adoption  Johnson District Court  Miami District Court  parent rights  recidivist burglar  Sedgwick District Court  termination of parent rights 

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January 16, 2015, Digests

Posted By Administration, Tuesday, January 20, 2015
Updated: Monday, February 10, 2020

Kansas Supreme Court


NO. 107,667 – JANUARY 16, 2015

FACTS: In fight outside a bar, Hobbs punched victim who sustained serious injury when he hit his head on car bumper as he fell. Hobbs convicted of aggravated battery. On appeal he argued insufficient evidence supported the conviction. Court of Appeals affirmed in unpublished opinion. Supreme Court accepted Hobbs’ petition to review appellate panel’s conclusion that aggravated battery under K.S.A. 2011 Supp. 21-5413(b)(1)(A) requires State to prove only that the defendant’s act that caused great bodily harm or disfigurement was intentional, not that the result of the act was intentional.

ISSUES: (1) Aggravated battery statute

HELD: History and construction of aggravated battery statute examined. K.S.A. 2011 Supp. 21-4513(b)(1)(A) requires state to prove that aggravated battery defendant acted while knowing that some type of great bodily harm or disfigurement of another person was reasonably certain to result. State not required to prove the defendant intended the precise harm the victim suffered. On record in this case, state presented sufficient evidence for jury to reasonably infer that Hobbs acted while knowing some type of great bodily harm or disfigurement was reasonably certain to result from the punch, even if Hobbs did not anticipate the victim’s precise injury.

STATUTES: K.S.A. 21-3201, -3414; K.S.A. 2011 Supp. 21-5202, -5202(f), -5202(g), -5202(i), -5413, -5413(b), -5413(b)(1)(A); and K.S.A. 1993 Supp. 21-3414a(c)

NO. 108,021 – JANUARY 16, 2015

FACTS: A jury found Killings guilty of premeditated first-degree murder for what was a retaliatory murder for a prior robbery committed against Killings. He received a sentence of life in prison without the possibility of parole for 50 years (hard 50 life sentence). On direct appeal, Killings argues: (1) The district court erred by failing to instruct the jury on second-degree intentional murder and second-degree reckless murder as lesser included offenses of premeditated first-degree murder; (2) the prosecutor committed misconduct during his closing arguments; (3) the district court erred by answering a juror's question when Killings was not present; (4) the cumulative effect of these alleged trial errors denied him a fair trial; (5) the district court, for multiple reasons, erred when it imposed a hard 50 life sentence; and (6) the district court erred by imposing lifetime post-release supervision instead of lifetime parole.

ISSUES: (1) Lesser included jury instructions; (2) prosecutorial misconduct; (3) jury questions; (4) cumulative error; (5) sentencing; and (6) lifetime post-release supervision

HELD: Court concluded the district court applied the wrong legal standard when it denied Killings' request for a jury instruction on second-degree intentional murder. But, the error was harmless considering the overwhelming amount of evidence establishing that the victim's death resulted from a premeditated killing. Court also concluded the prosecutor's comment during closing argument stating that Killings failed to take responsibility for the murder was improper, but found the comment did not constitute reversible error. Court found the other alleged trial errors raised had no merit. Court vacated Killings' hard 50 life sentence as required by Alleyne v. United States, 133 S. Ct. 2151 (2013), and State v. Soto, 299 Kan. 102, 124, 322 P.3d 334 (2014), and remanded to the trial court for resentencing.

STATUTES: K.S.A. 21-3107, -3401, -3402, -4635, -4636, -6620; K.S.A. 22-3405, -3414, -3420; and K.S.A. 60-261

Kansas Court of Appeals


NO. 110,766 – JANUARY 16, 2015

FACTS: Reed entered no contest plea to one count of attempted aggrieved indecent liberties with a child, a sexually violent crime under K.S.A. 2009 Supp. 22-3717(d)(2)(C) and subject to mandatory lifetime post-release supervision. Overruling Reed’s claim of cruel and unusual punishment to lifetime post-release supervision for first time offender who only attempted but did not touch a child, sentencing court imposed prison term with lifetime post-release supervision. Reed appealed.

ISSUE: (1) Eighth Amendment challenge to lifetime supervision

HELD: Reed’s sentence is not categorically disproportionate in violation of Eighth Amendment. The "attempt” nature of a conviction does not remove it from general category of sexually violent crimes subject to lifetime post-release supervision. Lifetime post-release supervision as applied to first time offenders serves legitimate penological goals because supervised release meets same rehabilitative and deterrent objectives as it does for repeat offenders. Offenders guilty of attempting to commit a crime still have the intent required to commit it, so penological objectives for lifetime post-release supervision are the same for those offenders who completed the crime. Goals of rehabilitation and incapacitation, in particular, are served by imposition of lifetime post release supervision, given propensity of sex offenders to reoffend.

CONCURRING (Atcheson, J.): Concurs in the result affirming the sentence imposed.

STATUTES: K.S.A. 2013 Supp. 22-3717(d)(1)(G), -3717(d)(1)(5); K.S.A. 22-3717(d)(2)(K); K.S.A. 2011 Supp. 22-3717(d)(2); and K.S.A. 2009 Supp. 22-3717(d)(1)(g), -3717(d)(2)(C). -3717(d)(2)(K)

Tags:  aggravated battery  Atcheson J.  Butler District Court  Concurrence  Eighth Amendment Challenge  Lyon District Court  Shawnee District Court 

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January 9, 2015 Digests

Posted By Administration, Tuesday, January 13, 2015
Updated: Monday, February 10, 2020

Kansas Supreme Court

Attorney Discipline

NO. 14,646 – DECEMBER 16, 2014

FACTS: In a letter signed on December 15, 2014, addressed to the clerk of the appellate courts, respondent Chavez, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas. At the time the respondent surrendered his license, complaints had been docketed by the disciplinary administrator's office in accordance with Supreme Court Rule 217. The complaints alleged that the respondent violated Kansas Rules of Professional Conduct 8.1(b) (2014 Kan. Ct. R. Annot. 670) (bar admission and disciplinary matters), 8.3(a) (2014 Kan. Ct. R. Annot. 678) (reporting professional misconduct), 8.4(a), (d), and (g) (2014 Kan. Ct. R. Annot. 680) (misconduct), Supreme Court Rule 207(a) (2014 Kan. Ct. R. Annot. 342) (cooperating with Disciplinary Administrator), and Supreme Court Rule 208(c) (2014 Kan. Ct. R. Annot. 356) (registration of attorneys).

HELD: The Court, having examined the files of the office of the disciplinary administrator, found that the surrender of the respondent's license should be accepted and that the respondent is disbarred.

Kansas Court of Appeals


NO. 110,861 – JANUARY 9, 2015

FACTS: John M. Denman Oil Co. has appealed a Kansas Corporation Commission (KCC) order that Denman Oil must plug 41 abandoned oil wells. Denman Oil contends that only one party may be held legally responsible for the wells under K.S.A. 55-179 and that since another party (Bridwells) took over the mineral lease from Denman Oil, it is no longer responsible. The district court granted partial relief to the Bridwells, ordering that they were only responsible for plugging the three wells they had produced from. The district court affirmed the KCC's order that Denman Oil plug the remaining 41 wells, and Denman Oil has appealed. The Bridwells did not appeal, and the KCC has not appealed the district court's limitations of the agency's original order to the Bridwells.

ISSUES: (1) Oil and gas; and (2) plugging wells

HELD: Court stated that K.S.A. 55-179(b) provides that "a person who is legally responsible shall include, but is not limited to, one or more" of several parties defined in that statute. And one of those who may be held responsible is "the original operator who . . . abandoned such well." Court held there's no dispute that Denman Oil was the original operator who abandoned these wells, so the KCC's order requiring Denman Oil to plug them was proper.

STATUTES: K.S.A. 55-155, -156, -179; and K.S.A. 77-201 Third, -601, -621


NO. 110,736 – JANUARY 9, 2015

FACTS: In 2009 McGill received a suspended sentence for felony convictions. After five revocations, the revocation proceeding at issue alleged May 2013 violations. District court revoked probation on July 24, 2013, finding McGill had committed a new crime by giving false paychecks to the probation officer. McGill appealed, arguing district court failed to make findings required under K.S.A. 2013 Sup. 22-3716(c) before revoking probation and thus should have imposed an intermediate sanction provided by that statute. He also claimed that "commits a new crime” language in K.S.A. 2013 Supp. 22-3716(c)(8) is vague, that he is entitled to rule of lenity, and that district court violated due process and lacked subject matter jurisdiction to revoke probation because revocation warrant did not allege McGill had committed a new crime.

ISSUES: (1) Application of K.S.A. 2013 Supp. 22-3716(c); (2) vagueness and rule of lenity; and (3) subject matter jurisdiction and due process

HELD: In 2014, legislature amended K.S.A. 2013 Supp. 22-3716(c) to make clear that graduated sanctions created therein apply to any violation of conditions of release or assignment or non-prison sanction occurring on or after July 1, 2013. McGill’s argument for application of the graduated sanctions fails because date of his violations occurred prior to July 1, 2013.

McGills’ vagueness and lenity claims are not considered because the challenged language is not in K.S.A. 2012 Supp. 22-3716, the applicable statute in this case.

Evidence supported district court’s finding that McGill violated his probation. District court had subject matter jurisdiction to proceed, McGill received minimum due process rights required under K.S.A. 2012 Supp. 22-3716, and no abuse of discretion in district court’s revocation of McGill’s probation.

STATUTES: K.S.A. 2013 Supp. 22-3716, -3716(c), -3716(c)(1)(A)-(D), -3716(c)(4), -3716(c)(8); K.S.A. 2012 Supp. 22-3716; and K.S.A. 22-3716

Tags:  Attorney Discipline  oil and gas  Sedgwick District Court  Shawnee District Court 

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January 2, 2015 Digests

Posted By Administration, Friday, January 2, 2015
Updated: Monday, February 10, 2020

Kansas Court of Appeals


NO. 111,191 – JANUARY 2, 2015

FACTS: This dispute involves the efforts of the asset manager for the owner of an apartment complex to terminate the services of the property manager for that apartment complex. Curo Enterprises LLC (Curo) the asset manager, brought an action in Johnson County District Court to remove Dunes Residential Services Inc. (Dunes) as the property manager. Dune Point West Associates LLC (DPW) owned the apartment complex. The parties ultimately settled the case, but Curo appeals from the district court's order denying its request for attorney fees pursuant to a fee-shifting provision in the management agreement between DPW and Dunes. Curo argues the district court erred by finding Curo was not the owner's agent under the terms of the management agreement and was neither a "party" nor a "prevailing party" under the fee-shifting provision. Curo argues it filed suit as the owner's agent and, when the district court approved and incorporated the parties' settlement agreement into an order, the district court qualified Curo as a prevailing party entitled to attorney fees.

ISSUES: (1) Attorney fees; and (2) prevailing party

HELD: Court held under the clear language of the management agreement, Curo had the right to enforce the agreement "on behalf of" DPW without requiring any action or consent from the managing member of DPW. Given that the management agreement expressly gave Curo the authority to act on behalf of DPW in terminating the management agreement, Court held that Curo, as DPW's agent, fell within the "either party" limitation in the management agreement's language to allow collection of attorney fees. Court held the district court's order specifically ordered and authorize tasks which required it to maintain supervision of the transition between the property management companies, all of which were predicated on Dunes' voluntary resignation as the property manager, and it provided continuing jurisdiction over the case despite the fact the trial date became moot. The district court's order was more than a mere recognition of the parties' settlement and dismissal of the case. Therefore, court found the order was a consent decree qualifying Curo as a prevailing party. Because the court agreed that Curo was acting as the owner's agent when it sought to terminate Dunes as the apartment complex property manager under the terms of the management agreement and because the court found Curo qualified as both a party and a prevailing party under the fee-shifting provisions of the management agreement, the court reversed the district court and remanded to determine attorney fees and costs to which Curo is entitled under the management agreement as the prevailing party.

STATUTE: K.S.A. 60-217

Tags:  attorney fees  Johnson District Court 

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December 27, 2013, Appellate Court Digests

Posted By Administration, Friday, December 27, 2013
Updated: Thursday, August 24, 2017

Kansas Supreme Court


State v. Hurd
Seward District Court – Reversed and remanded
Court of Appeals – Reversed
No. 104,198 – December 27, 2013

FACTS: Hurd convicted in trial that consolidated case with assault, battery, and criminal threat charges, and case charging two counts of failure to register as sex offender. Hurd appealed on nine issues, in part challenging district courts decision to consolidate the cases, trial judge’s refusal to recuse, and district court’s refusal to find complaint charging him with failing to register was jurisdictionally defective. In unpublished opinion, Court of Appeals rejected each issue and affirmed convictions and sentences. Hurd’s petition for review granted.

ISSUES: (1) Consolidation of cases, (2) defective complaint, (3) sufficiency of evidence of criminal threat, (4) recusal of trial judge, (5) authority to disqualify prosecutor

HELD: District court erred in consolidating the two cases. District court’s calendar considerations do not provide a basis for joinder, and Supreme Court rejects Court of Appeals’ finding that crimes were connected. State v. Anthony, 257 Kan. 1003 (1995) is distinguished. State’s case as to battery, assault, and criminal threat charges was not strong, and jury might well have been influenced by Hurd’s prior convictions. Under the circumstances there was a reasonable probability that the improper consolidation affected the outcome of Hurd’s trial. Reversed and remanded for two separate trials.

Complaint charging Hurd with two counts of failing to register was jurisdictionally defective. Complaint’s language did not substantially follow language of K.S.A. 22-4904(a)(1), nor charge the offense in equivalent words to fully inform Hurd of particular offense charged. Final charging document also was confusing because it blended language from two different statutory provisions. Because conviction was void as a result of district court’s error in denying motion for arrest of judgment, State not prevented from recharging Hurd.

Under facts of case viewed in light most favorable to prosecution, sufficient evidence supported Hurd’s conviction for criminal threat. Remand for a new trial on this charge does not violate Double Jeopardy Clause.

Because Hurd essentially alleged prosecutor violated Kansas Rules of Professional Conduct, trial court had discretion to disqualify that attorney from the case. If issue arises on remand, district court should consider whether prosecutor’s alleged conduct warrants disqualification.

STATUTES: K.S.A. 2012 Supp. 60-261; K.S.A. 20-311d, -311d(c), -311d(d), 3018(b); K.S.A. 22-3202, -3202(1), -3203, -3502, -4904(a)(1), -4904(b); and K.S.A. 60-2101(b)

Habeas corpus
Makthepharak v. State
Sedgwick District Court – Affirmed
No. 105,932 – December 27, 2013

FACTS: Makthepharak charged as juvenile on charges related to home invasion and murder. District court granted state’s motion for adult prosecution. Makthepharak’s convictions and sentences for first-degree felony murder, aggravated burglary, and criminal possession of firearm were affirmed on appeal. 276 Kan. 563 (2003). In 2010, Makthepharak filed pro se motion to correct illegal sentence and for appointment of counsel. District court denied the motion without a substantive hearing or appointment of counsel. Makthepharak appealed, claiming district court lacked jurisdiction to impose sentence because Makthepharak was never properly certified for adult prosecution, and alternatively, that district court improperly construed his pro se motion. He also claimed district court’s summary denial of K.S.A. 22-3504 motion was fundamentally unfair, and alternatively claimed he was entitled to assistance of counsel during the court’s initial examination of the motion.

ISSUES: (1) Procedural claims – motion to correct illegal sentence, (2) summary denial of motion to correct illegal sentence and certification for adult prosecution, (3) construing the pro se motion

HELD: Makthepharak made no persuasive argument for revisiting or abandoning longstanding interpretation of K.S.A. 22-3504 as not requiring a substantive proceeding and assistance of counsel in all cases, and that statute’s protections do not apply when a court summarily denies a motion to correct an illegal sentence.

District court properly considered statutory factors in K.S.A. 38-1636(e). Because Makthepharak was properly certified as an adult under the statute, district court had jurisdiction over the criminal trial. Makthepharak’s sentence was therefore lawful.

Although district court erred in part by construing Makthepharak’s motion as an improper method of attack and perhaps as seeking unavailable relief, Makthepharak was not prejudiced because his claim was still considered and properly denied on its merits.

STATUTES: K.S.A. 2012 Supp. 22-3601(b)(3); K.S.A. 2010 Supp. 38-2347(e); K.S.A. 22-3504, -3504(1); K.S.A. 38-1601 et seq., -1636(e); K.S.A. 60-1507

Kansas Court of Appeals


Workers Compensation
Lake v. Jessee Trucking and Continental Western Group
Workers Compensation
No. 109,519 – December 27, 2013

FACTS: Glenn C. Lake appealed the denial of his workers compensation claim. Lake had an accident at work and then experienced increasing symptoms of back pain and arm and leg numbness. Lake's treating physicians, a neutral physician appointed by the administrative law judge (ALJ), and a physician retained by Lake, all testified that the work accident caused his injuries. A physician retained by Lake's employer, Jessee Trucking, offered no opinion because he was uncertain regarding the onset of Lake's symptoms. The ALJ heard sworn testimony from Lake describing his work accident, his symptoms, and his medical care. The ALJ determined that the work accident caused significant neurological injuries and awarded Lake compensation for his permanent total disability. Upon review, however, the Workers Compensation Board (Board) rejected Lake's testimony and held that he had failed to prove the work accident had caused his neurological injuries.

ISSUE: Workers compensation

HELD: Court held that under the facts of this workers compensation case, having considered all of the evidence—including the credibility determinations made by the administrative law judge regarding the claimant and the reasons given by the Board for disagreeing with those credibility determinations, the Board's findings of fact in support of its conclusion to deny compensation are not supported by substantial evidence when viewed in light of the record as a whole. Court stated that because the question here was not the existence of a work accident, which the Board found, or even of injury to Lake, which the Board found in the form of a pulled groin, but only of a link between the work accident and Lake's neurological injuries, the causation opinions of the doctors did not seem improbable, unreasonable, or untrustworthy. Court concluded that the weight of this medical evidence, coupled with the lack of substantial evidence to uphold the Board's findings that Lake was not credible (contrary to the ALJ's determination) and the evidence corroborating Lake's testimony that he experienced neurological symptoms during and shortly after the accident, require reversal of the Board's ruling. Court held the Board's findings of fact in support of its conclusion to deny compensation were not supported by substantial evidence viewed in light of the record as a whole. Court reversed the Board's order and remanded with directions to reinstate the ALJ's award of compensation.

STATUTES: K.S.A. 44-501, -556; K.S.A. 77-601, -621

Smith v. Kansas Orthopaedic Center P.A.
Sedgwick District Court – Affirmed
No. 109,084 – December 27, 2013

FACTS: In 2007, Lana Smith began work as a physical therapist for a Wichita medical practice. After she left its employment, she sued for bonuses she said were owed to her. Smith said that the practice's business manager promised her a minimum $10,000 per year bonus before she began work. But Smith's employment agreement also clearly provided that she was an at-will employee, something she has not contested, and the compensation of at-will employees may be changed on a going-forward basis. Her employer announced new compensation terms during 2008, paid her more than $10,000 in bonuses for 2008, and applied the new compensation terms to bonuses in later years. Smith sued for her benefits and the district court held that by staying on after new compensation terms are announced for future compensation, an at-will employee impliedly accepts those terms. Accordingly, the district court granted summary judgment against Smith's claim for additional bonuses from 2009 until she ended her employment in 2011.

ISSUE: At-will employment

HELD: Court held that in an at-will employment, the employer can change the terms under which the employee is compensated for wages not yet earned by providing notice to the employee. If the employee continues to work after the new compensation terms have been announced, the employee impliedly accepts those terms.


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January 4, 2013, Appellate Court Digests

Posted By Administration, Friday, January 4, 2013
Updated: Thursday, July 25, 2019

Kansas Supreme Court


eminent domain
City of Wichita v. Denton and Clear Channel
Sedgwick district court – affirmed
No. 97,952 – January 4, 2013

FACTS: City of Wichita filed action under Kansas Eminent Domain Procedure Act (EDPA) to condemn tract of land for highway purposes. Defendants included Denton as owner of fee title, and Clear Channel as lessee on property for operation of billboard. Appraisers valued tract at $1,075,600, with no compensation given for billboard structure and no consideration as to advertising income produced by Clear Channel’s leasehold. Clear Channel appealed appraiser’s award, and requested jury trial to determine total damages for the condemned property. District court affirmed the award as just compensation for taking the entire tract, ruled the billboard was personal property for which no compensation was required, and granted summary judgment to City. Clear Channel appealed, alleging error in district court’s judgment that billboard structure was noncompensable personal property, and district court’s related order granting City’s motion in limine order to exclude Clear Channel’s expert testimony based on advertising income as irrelevant to issue of just compensation.

ISSUES: (1) Character of billboard structure; (2) evidence of advertising income; and (3) unit rule

HELD: Appeal involves valuation stage of EDPA two-stage (valuation and apportionment) approach to compensation for taking where property consists of fee ownership and leasehold. District court correctly granted City’s motion for partial summary judgment and motion in limine excluding evidence of value of billboard structure because undisputed facts in this case demonstrate that billboard was personal property noncompensable in eminent domain proceeding.

District court did not err in granting City’s motion for partial summary judgment and motion in limine excluding evidence of advertising income generated by billboard structure on condemned real estate because this evidence represented business profits rather than rental income, and was irrelevant for determining value under any authorized valuation method.

No violation of unit rule in this case. District court correctly excluded evidence of value of billboard as personalty, correctly excluded evidence of advertising income produced by the billboard, and Clear Channel presented no other admissible evidence regarding value of its leasehold or the tract as a whole.

STATUTES: K.S.A. 2011 Supp. 26-504, -508(a); K.S.A. 26-501 et seq., -502, -502(3)(a), -508, -513, -513(a), -513(b), -513(d)(1), -513(e), -517; and K.S.A. 60-401(b), -402, -407(f)

Tags:  eminent domain  Sedgwick District 

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