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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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January 4, 2019 Digest

Posted By Administration, Monday, January 7, 2019

Kansas Court of Appeals

 

CIVIL

EMPLOYMENT—MALPRACTICE
NASH V. BLATCHFORD
COWLEY DISTRICT COURT—AFFIRMED
NO. 119,155—JANUARY 4, 2019

FACTS: Nash filed a medical malpractice action against Dr. Blatchford. Dr. Blatchford moved for summary judgment, claiming the district court lacked jurisdiction because Dr. Blatchford works for a municipal hospital, and Nash failed to file a written notice of claim, as required by K.S.A. 12-105b(d), prior to filing suit. Because the two-year statute of limitations had expired, Dr. Blatchford argued that Nash's claim was time-barred. The district court granted the motion and Nash appealed.

ISSUES: (1) Did Nash's claims fall under the Kansas Tort Claims Act, requiring him to file a notice of claim under K.S.A. 12-105b(d); (2) do the 2015 amendments to K.S.A. 12-105b(d) apply to Nash's claim; (3) do the 2015 amendments deny equal protection to victims of medical malpractice committed by doctors employed at municipal hospitals

HELD: The notice of claim requirement in K.S.A. 12-105b(d) is jurisdictional. The health care provider exception found at K.S.A. 75-6115(a) excludes from liability claims based upon the rendering of professional services by a health care provider. But subsection (a)(2) of the statute gives exceptions to the exclusion and includes claims made against a hospital owned by a municipality "and the employees thereof". It is undisputed that Dr. Blatchford works at a hospital owned by a municipality. Under the Knorp test, Dr. Blatchford is an employee of his hospital, not an independent contractor, and the notice of claim requirement applies. The prior version of K.S.A. 12-105b(d) did not apply to employees of municipalities. The amendments apply to Nash's claim because he had a reasonable amount of time after the amendments' effective date to comply with the notice requirements. There is a legitimate government interest in giving a municipal hospital notice of a claim against one of its employees.

CONCURRENCE: (Atcheson, J.) The majority reached the correct result but erred by giving too much weight to Dr. Blatchford's employment contract. The panel should not have imposed a "gatekeeper requirement" on the equal protection claim by looking too closely at whether Nash was similarly situated to other malpractice plaintiffs.

STATUTES: K.S.A. 2017 Supp. 12-105a(h), -105b, -105b(d), 40-3403(h), 75-6102(d)(1), -6102(d)(2)(B), -6115(a), -6115(c)(3), -6115(c)(4); K.S.A. 12-105b(d), 40-3401(f), -3403(h)

Tags:  8802  Cowley District  Weekly20190108 

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December 21 and 28, 2018 Digests

Posted By Administration, Wednesday, January 2, 2019

Kansas Supreme Court

HABEAS CORPUS—PROCEDURE
NGUYEN V. STATE
FINNEY DISTRICT COURT—Reversed and Remanded
COURT OF APPEALS—REVERSED
NO. 112,851—DECEMBER 21, 2018

FACTS: Nguyen was convicted of multiple high-level felonies; his conviction was affirmed on direct appeal. Over the years, Nguyen filed three K.S.A. 60-1507 motions challenging various aspects of his convictions. The third motion, filed in 2012, was summarily denied by the district court as both untimely and successive. On appeal, the court of appeals agreed with Nguyen that manifest injustice required an exception to the one-year time bar on the motion. Two of Nguyen's co-defendants had one of their convictions reversed, and it appeared that Nguyen was similarly entitled to relief. Notwithstanding that fact, the panel determined that Nguyen failed to establish any exceptional circumstances that warranted accepting a successive motion. And although the panel appeared to agree that the district court's findings of fact and conclusions of law were insufficient, it held that Nguyen waived any insufficiency by failing to object. The summary denial was affirmed, and Nguyen's petition for review was accepted.

ISSUES: (1) Compliance with Supreme Court Rule 183(e); (2) successive motion; (3) adequacy of findings of fact and conclusions of law

HELD: Nguyen's K.S.A. 60-1507 motion substantially complied with Supreme Court Rule 183(e). All of the required information could be obtained simply by reading Nguyen's attachments. Nguyen's motion showed exceptional circumstances which justified his failure to raise these issues in a prior 1507 proceeding. And trial counsel failed to raise an issue that was successful for Nguyen's co-defendants. Justice requires that Nguyen's conviction for conspiracy to commit kidnapping be reversed as multiplicitious. Nguyen's status as a pro se litigant, combined with the district court's summary denial of his motion, made it difficult for him to object to the district court's inadequate findings of fact and conclusions of law. Nevertheless, he filed a motion to alter or amend the judgment which specifically raised this issue. The district court's order was conclusory and did not comply with Supreme Court Rule 183. This case is returned to the district court for further proceedings.

STATUTE: K.S.A. 60-1507

criminal

state v. gonzalez-sandoval
lyon district court—affirmed
court of appeals—reversed
No. 114,894—december 21, 2018

FACTS: Gonzalez-Sandoval was convicted of aggravated indecent liberties with a child.  During jury selection he raised a Batson challenge to State’s peremptory strike of one of three potential Hispanic jurors (T.R.).  In response, State pointed to T.R.s avoidance of eye contact and failure to disclose her involvement in two cases. District court found eye contact reason insufficient, but denied the challenge finding T.R. not being truthful was a race-neutral reason.  During trial, State admitted discovering the case-specific reasons it cited were not factually correct, but said T.R. failed to disclose she was a witness in a third case. District court found T.R.’s untruthfulness was still a race-neutral reason for striking T.R., and found State honestly believed the factual basis first offered for its strike. Gonzalez-Sandoval appealed on issues including his Batson claim. A divided court of appeals panel reversed on that issue, finding circumstances showed the peremptory strike was not race neutral, and district court abused its discretion in denying the Batson challenge. 153 Kan.App.2d 536 (2017). State’s petition for review granted. 

ISSUE: Batson challenge

HELD: Batson and U.S. Supreme Court cases applying it are reviewed. Here, Gonzalez-Sandoval satisfied Batson’s first step by making a prima facie showing that the peremptory challenge was based on race. Batson’s second step satisfied by trial court’s factual finding that T.R.’s lack of candor stated a race-neutral reason for the State’s peremptory strike, and by trial court’s credibility determination that prosecutor honestly believed the information first presented to the court was true. But Gonzalez-Sandoval, by failing to provide any evidence or argument that State’s race-neutral justification was pretext, did not satisfy Batson’s third step. Judgment of court of appeals is reversed. Trial court’s judgment is affirmed.

STATUTES: None

Kansas Court of Appeals

Civil

JUDGMENT—LAW OF THE CASE
IN RE MARRIAGE OF GERLEMAN
DOUGLAS DISTRICT COURT—AFFIRMED IN PART,
REVERSED IN PART, and REMANDED
NO. 117,913—DECEMBER 28, 2018

FACTS: After the parties filed for divorce, the decree addressed the division of marital property, including the difficult issue of Robert's military retirement pay. That ruling was appealed, and the court of appeals remanded for clarification on the correct formula to use when dividing the amount between the parties. While the remand was pending, Robert filed for relief from the judgment by arguing that the divorce decree was void because there was no valid agreement between the parties. Robert also specifically challenged the maintenance award that was in the decree. The district court denied the voidness argument as barred by the law of the case. The district court denied Robert's claim that maintenance should be modified, holding that the decree adopted the parties' agreement on that issue. Because Robert was in arrears on maintenance, the district court held him in contempt. Robert appealed.

ISSUES: (1) Application of law of the case doctrine to a void judgment; (2) contempt finding; (3) modification of the decree; (4) ability to modify maintenance

HELD: Robert could have raised the issue of the validity of the judgment in the first appeal, but he did not. In order to avoid the bar of the law of the case doctrine, all issues – including voidness – that could have been raised in a prior appeal will not be considered in a later appeal. The maintenance and property settlement provisions of the divorce decree are valid, which means the contempt finding was also valid. The law of the case doctrine and the record on appeal show that Robert's arguments about the division of his military retirement pay are not properly before the court. There is no mention in the divorce decree that the parties reached an agreement on maintenance. For that reason, the district court erred by denying Robert's motion to modify solely on statutory grounds. The district court must consider the merits of Robert's motion to modify maintenance.

STATUTES: K.S.A. 2017 Supp. 23-2712, -2712(b)

Tags:  Douglas District  Finney District  Lyon District 

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December 14, 2018 Digests

Posted By Administration, Monday, December 17, 2018

Kansas Supreme Court

Attorney Discipline

6-MONTH SUSPENSION
IN THE MATTER OF LARA M. OWENS
NO. 118,693—DECEMBER 14, 2018

FACTS: A hearing panel of the Kansas Board for Discipline of Attorneys found that Owens violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(b) (safekeeping property), 1.16(d) (termination of representation), 8.1(b) (failure to respond to a demand from a disciplinary authority), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and Rule 207(b) (failure to cooperate in a disciplinary investigation). The complaint arose after clients alleged that Owens failed to inform them of the relevant statute of limitations, failed to timely file lawsuits, and failed to communicate about case status. Owens failed to respond to an initial letter from the investigator and also ignored the follow-up email.

HEARING PANEL: Owens and the disciplinary administrator stipulated to some facts, including Owens' failure to provide her clients with timely updates on the status of their actions and her failure to cooperate in the disciplinary process. Owens was on diversion when some of the alleged misconduct occurred. She was also being treated for anxiety issues. The disciplinary administrator initially agreed to a two-year probation term with an underlying two-year suspension. But Owens failed to perform all of the required steps to put a plan in place, and both the disciplinary administrator and the hearing panel instead recommended a six-month suspension of Owens' license.

HELD: Clear and convincing evidence supports the hearing panel's findings regarding Owens' rule violations. Owens failed to comply with Rule 211(g), which establishes the tasks an attorney must undertake in order to be placed on probation. For that reason, probation is not an appropriate sanction. Based on the nature and duration of Owens' misconduct, a majority of the court imposed a six-month suspension of Owens' license. A minority of the court would have imposed a shorter suspension. Owens must undergo a Rule 219 hearing before her license can be reinstated.

criminal

appeals—constitutional law—evidence—motions—
prosecutors—sentences—statutes
state v. wilson
reno district court—reversed on issue subject to review and remanded
court of appeals—affirmed on issue subject to review
No. 114,567—december 14, 2018

FACTS: Wilson was convicted in 2007. State filed 2015 motion to correct an illegal sentence, arguing it was error not to impose lifetime post release supervision. Citing State v. Freeman 223 Kan. 362 (1978), Wilson claimed lifetime supervision was cruel and unusual punishment. District court granted the state’s motion. Wilson appealed, claiming in part he was denied a fair sentencing hearing when prosecutor misstated facts of Wilson’s case and mischaracterized facts in an unpublished opinion Wilson cited in support of his Freeman claim. A divided court of appeals panel affirmed in an unpublished opinion, finding appellate review was appropriate of claim of prosecutorial error in the context of a hearing on a motion to correct an illegal sentence, and applying test in effect prior to State v. Sherman, 305 Kan. 88 (2016).  State’s petition for review was granted. State claimed the prosecutorial error challenge was not preserved for appeal because Wilson did not object to the alleged misstatements during the sentencing hearing.

ISSUES: (1) Preservation of the appeal, (2) prosecutorial error

HELD: Because the state’s petition for review advances only a merit-based challenge to the prosecutorial error question, it waived review of panel majority’s conclusion on preservation.

Prosecutorial error may occur during a sentencing proceeding before a judge. The two-step analytical framework in Sherman applies in both the guilt and penalty phases of any trial —whether before a jury or judge. Applying the Sherman test, there was reversible error at Wilson’s sentencing hearing. Prosecutor’s factual misstatements about Wilson’s underlying crime fell outside the wide latitude afforded when arguing state’s motion to correct an illegal sentence, and the state failed to show there was no reasonable possibility this prosecutorial error contributed to the district court’s decision. State concedes the prosecutor misstated facts in the unpublished case Wilson cited, but no further need in this case to explore alleged error in a prosecutor’s discussion of caselaw. The case is remanded to district court to consider again the question under Freeman—whether imposing lifetime post release supervision on Wilson would be grossly disproportionate to his offense.

STATUTE: K.S.A. 20-3018(b), 21-3501(1), 60-261, -2101(b)

Kansas Court of Appeals

criminal

appeals—constitutional law—criminal procedure—
juveniles—sentences—statutes
state v. robinson
johnson district court—affirmed in part, reversed in part, and remanded
No. 117,957—december 14, 2018

FACTS: Robinson was convicted of aggravated robbery and kidnapping. His case was initially filed as a juvenile offender proceeding, and then moved to adult court where charges were amended to add kidnapping. On appeal, Robinson claimed he was denied his constitutional right to a speedy trial. He also claimed the state could not add charges once the case moved from juvenile to adult court, and claimed the state’s service of the arrest warrant was so late that the statute of limitations had expired.

ISSUES: (1) Speedy trial—juvenile proceedings, (2) amended charges, (3) statute of limitations

HELD: Speedy-trial rights apply to juvenile-offender proceedings. On facts in this case, Robinson did not lose his constitutional right to a speedy trial by his delayed filing of his motion to dismiss. Delay from the time the state brought formal charges in the juvenile court until Robinson’s trial in an adult proceeding must be analyzed under factors in Barker v. Wingo, 407 U.S. 514 (1972). Case is remanded to district court to make the required factual findings under those factors.

When a criminal charge first made in juvenile proceedings is refiled as an adult proceeding, the state is not precluded from amending the charge. No departure from rule in State v. Randolph, 19 Kan.App.2d 730 (1994). Here, Robinson made no showing that adding the kidnapping charges substantially prejudiced his ability to defend himself at trial.

Statute-of-limitation defenses are waived if not timely raised. Even assuming Robinson could have raised the statute-of-limitation defense after the case had moved to adult proceedings, his failure to do so waived the defense. On remand, the district court may consider the state’s delay in serving the warrant, its cause, and any resulting prejudice when weighing the Barker factors to decide Robinson’s speedy-trial claim. 

STATUTES: K.S.A. 2017 Supp. 22-3208(4), 38-2303(d), -2303(g), -2347, -2347(b)(1), -2347(d)(1)-(3); K.S.A. 22-3201(e)

Tags:  Attorney Discipline  Johnson District  juveniles  Reno District  suspension  Weekly20181218 

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December 7, 2018 Digests

Posted By Administration, Tuesday, December 11, 2018

Kansas Supreme Court

 

criminal:



constitutional law—criminal law—criminal procedure—evidence—
fourth amendment—search and seizure —statutes
state v. hubbard
douglas district court—affirmed; court of appeals—affirmed
No. 113,888—december 7, 2018

FACTS: Hubbard answered officer’s knock on apartment door. Based on smell of marijuana, officers ordered everyone to leave the apartment, and then conducted security sweep to ensure no one remained inside. Search warrant obtained and executed, finding drug evidence. Hubbard convicted of possession of marijuana and drug paraphernalia. He appealed claiming  drug evidence should have been suppressed because: (1) the initial warrantless entry into his apartment for a security sweep was illegally premised on officer’s report of smelling raw marijuana while standing at the front door; and (2) officer’s suppression-hearing testimony about smelling raw marijuana odor was inadmissible expert testimony. Court of appeals affirmed in unpublished opinion, finding smell of marijuana provided probable cause to believe that crime had been committed, that apartment held evidence of that crime, and that sweep of the apartment was justified by need to preserve evidence. Review granted.

ISSUES: (1) Motion to suppress, (2) opinion testimony

HELD: On facts found by district court, the smell of marijuana provided probable cause, and threat of evidence destruction was an exigent circumstance. To the extent drug  evidence and the search warrant were fruits of a warrantless search, the sweep was not illegal and the challenged evidence is not subject to exclusion. United States Supreme Court cases addressing relationship between odors and probable cause are reviewed.

            District court did not err by admitting officer’s testimony about smelling raw marijuana as lay opinion. State v. Sasser, 305 Kan 1231 (2017), is reviewed, similarly finding in this case that officers’ opinions that they smelled raw marijuana, based on their perception and specialized training, qualified as lay opinion admissible under K.S.A. 2017 Supp. 60-456(a).  

DISSENT (Beier, J., joined by Rosen and Johnson, JJ.): Dissents from majority’s result and rationale. Would hold the district judge applied the wrong legal standard in admitting and considering the officers’ suppression-hearing testimony, treating their expert opinions on the source of the odor they perceived as facts. Subsection (b) of K.S.A. 2017 Supp. 60-456, is controlling, rather than subsection (a). Would also hold district judge’s conclusion, that sweep was justified by existence of probable cause and exigent circumstances, erroneously relied in part upon absence of State evidence. Would reverse the convictions, vacate the sentence, and remand to district court for new evaluation of the motion to suppress.

STATUTES: K.S.A. 2017 Supp. 60-456, -456(a), -456(b); K.S.A. 2015 Supp. 60-456; K.S.A. 20-3018(b), 22-3216(2), 60-419, -2101(b)

 

 

constitutional lawcriminal lawfourth amendment
search and seizuresentencingstatutes
state v. parker
sedgwick district court—affirmed on issues subject to review;
court of appeals—affirmed on issues subject to review
No. 112,959—december 7, 2018

FACTS: Officer in unmarked car activated his red and blue emergency lights and “wig wag” lights in attempt to stop vehicle driving without lights after dark, and observed driver’s furtive movements toward console as vehicle continued without stopping. Vehicle eventually pulled into grocery store parking lot where driver (Parker) exited and locked the vehicle. Officer arrested Parker who refused consent to search of the vehicle. Parker then waited in police car approximately an hour for K9 unit to arrive and alert on the vehicle. Drug charges filed based on evidence found in subsequent search of vehicle’s console. Parker filed motion to suppress, challenging the duration of the stop and alleging incrimination statements were made in violation of Miranda. District court denied the motion. Jury convicted Parker as charged. On appeal, Court of appeals remanded on Parker’s Batson jury selection claim, but affirmed on claims challenging: (1) district court’s refusal to suppress evidence; (2) sufficiency of the evidence supporting the feeing or eluding offense because the police vehicle was not properly marked; and (3) the use of Parker’s prior crimes to enhance the sentence. Review granted on these three claims.

ISSUES: (1) Continued seizure of Parker and the vehicle, (2) sufficiency of the evidence on fleeing, (3) sentencing

HELD: The seizure of Parker was lawful—the initial seizure of his person did not violate Fourth Amendment, and his extended holding in the police car did not make his seizure unlawful. Applying test for property seizure, on record in this case, the vehicle was not seized between the time Parker exited and locked it and the time of the K9 alert, and Parker was not deprived of a possessory interest in the vehicle after his arrest while it sat locked in a public parking lot.  

            Statutory challenge to K.S.A. 2018 Supp. 8-1568 is rejected. Officer was driving an unmarked car outfitted with standard police equipment and lights which were activated to stop Parker who did not stop for a considerable period. Sufficient evidence was presented to support the fleeing conviction.

            Sentencing claim defeated with no departure from decisions rejecting this same claim.

CONCURRENCE AND DISSENT (Johnson, J.): Dissents on the suppression issue, finding no factual or legal support for majority’s holding that the vehicle was not continually seized after Parker’s arrest. Disagrees that seizure of the stopped vehicle ended when Parker exited and locked it. Would hold that State unlawfully detained Parker’s vehicle beyond the time and detention warranted by the totality of the circumstances, requiring reversal of conviction based on the ensuing unlawful search.

STATUTES: K.S.A. 2017 Supp. 5-1568, -1568(a)(1), -1568(d), -1568(e)(2), 22-2901(1); K.S.A. 2012 Supp. 8-262(a)(1), -1568(a), -1568(c)(1), 21-5706(a), -5706(c)(1); K.S.A. 8-1548, -1703, 20-3018(b), 60-2101(b)

 

 

constitutional law—criminal law—criminal procedure—evidence—
Fifth Amendment—search and seizure
state v. regelman
geary district court—affirmed in part—reversed in part—remanded;
court of appeals—affirmed in part—reversed in part
No. 116,398—December 7, 2018

FACTS: Officers conducting a welfare check smelled raw marijuana at Regelman’s front door. Officers ordered Regelman to remain outside while search warrant was obtained, and handcuffed him to prevent him from putting hands in his pockets. Search warrant affidavit included incriminating statements Regelman made. Execution of the warrant disclosed drug related items inside a thick wooden box by a couch, several feet from front door. Regelman arrested and Miranda rights given for first time. Regelman filed motion to suppress. District court granted the motion, finding Regelman’s statements about drug use occurred during questioning in violation of Miranda. District court further held the smell of marijuana by itself does not provide probable cause for a search, and good-faith exception to the exclusionary rule did not apply. State filed interlocutory appeal. Court of appeals affirmed in unpublished opinion. State’s petition for review granted.

ISSUES: (1) Statements about drug use, (2) marijuana odor and probable cause

HELD: Regelman’s drug use statements are scrutinized under Fifth Amendment. Miranda warnings were required when questioning of Regelman turned into a custodial interrogation by ordering him to stop walking away and either sit on the steps or in a patrol car. The search warrant affidavit contained this unlawfully obtained information, but under State v. Fisher, 283 Kan. 272 (2007), the affidavit as a whole is not invalid if it supplied a substantial basis for finding probable cause without the unlawfully obtained information.

            State v. Hubbard (decided this same date), held the totality of circumstances surrounding a police officer’s detection of the smell of raw marijuana emanating from a residence can provide probable cause to believe the residence contains contraband or evidence of a crime. District court holding to the contrary was error as a matter of law. Applying Fisher, even without the drug-use statements, information remaining in the affidavit provided a substantial basis for finding a fair probability that evidence of a crime would be found in the home. Affirmed in part, reversed in part, and remanded for further proceedings.

CONCURRENCE (Beier, J.): Concurs in the result because Regelman made no effort to challenge admission of officer’s testimony at the suppression hearing on the basis that he was not qualified to give an expert opinion on the existence or strength of the odor of raw marijuana. Does not concur in majority’s rationale, which turns a blind eye to gatekeeping requirement under K.S.A. 2017 Supp. 60-456(b).

DISSENT (Johnson, J., joined by Rosen, J.): Agrees with Justice Beier’s criticism of majority’s rationale, but cannot concur with majority’s result. Would affirm district court’s suppression of the evidence. Because this case involved the long-range detection of odor of raw marijuana in a closed container, questions whether State could make the required foundation for the officer’s testimony by establishing the officer was in a position that would rationally allow him to perceive odor of raw marijuana.

STATUTES: K.S.A. 2017 Supp. 60-456(a), -456(b); K.S.A. 20-3018(b), 22-3216(2), 60-2101(b)

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