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October 12, 2018 Digests

Posted By Administration, Tuesday, October 16, 2018

Kansas Supreme Court

Attorney Discipline

NO. 118,992 – OCTOBER 12, 2018

FACTS: A hearing panel determined that Studtmann violated Kansas Rules of Professional Conduct 1.2(c) (scope of representation), 1.5 (fees), 1.7(a) (conflict of interest), 1.8(f) (accepting compensation for representation of client from someone other than the client), and 1.16(d) (termination of representation). The complaint arose after Studtmann agreed to represent two individuals who were involved in a fatality automobile accident. Studtmann represented both clients without discussing with them the potential for a conflict of interest. Studtmann also spoke with his client's parents without obtaining her consent to release information to them. Both clients discharged Studtmann and obtained new counsel after a week of representation. Studtmann failed to promptly refund unearned fees to the client's parents.

HEARING PANEL: Based on the record and on stipulations made by the parties, the hearing panel determined that the fees charged by Studtmann during his time on this case were unreasonable. The panel also found numerous conflicts with Studtmann's joint representation and his dealings with his client's parents. The hearing panel believed that some of Studtmann's behavior was motivated by selfishness and it found that some of his answers at the hearing were misleading or deceptive. After noting several mitigating circumstances, the disciplinary administrator recommended discipline of a 90 day suspension. Studtmann made an initial request for probation before asking for an informal admonition. The hearing panel recommended discipline of published censure and also believed that Studtmann should be required to refund the entire retainer amount.

HELD: There were no exceptions to the hearing panel's final report. After noting that Studtmann had already refunded fees and agreed to an audit of his trust account, the disciplinary administrator recommended discipline of published censure. A majority of the court agreed. A minority of the court, troubled by the findings of Studtmann's dishonest testimony, would impose the 90-day suspension initially requested by the disciplinary administrator.

Kansas Court of Appeals


NO. 119,070 – OCTOBER 12, 2018 

FACTS: A motorcyclist was killed after he was hit by a van driven by Salazar. After the accident, Salazar was upset but gave law enforcement permission to get her driver's license out of her vehicle. While looking for the license, officers found Salazar's cell phone on the floor. An officer picked it up and looked at it; when asked by another officer, he said that he was just trying to determine if Salazar was texting at the time of the accident. During her later interrogation, Salazar gave officers permission to search her phone. That investigation showed that Salazar sent a text at the exact time of the accident. Officers eventually requested and received a search warrant for Salazar's phone. Salazar was charged with multiple counts, including one count of vehicular homicide. She filed a motion to suppress, claiming that the officer's initial search of her cell phone was illegal, tainting any further evidence recovered from the phone. The district court granted the motion, finding that officers conducted an invalid warrantless search of the phone. The State appealed.

ISSUES: (1) Plain view exception; (2) Attenuation doctrine; (3) Exclusionary rule

HELD: A warrant is generally required before the search of a cell phone. The officer's search of Salazar's phone was unreasonable unless an exception to the warrant requirement applies. The district court made no findings about whether the officer pressed a button on Salazar's phone in order to see the text messages, or whether they were immediately visible. But the district court's implicit finding that the officer did manipulate the phone into showing messages is supported by substantial competent evidence. Because the officer pressed a button in order to activate the phone, the plain view exception does not apply. The district court did not make the findings necessary to determine whether Salazar's consent to search her phone was voluntary and remote enough to allow for application of the attenuation doctrine. The attenuation doctrine can only apply if Salazar's consent was voluntary, and further findings of fact are required before that can be determined.

STATUTES: No statutes cited.

Tags:  Attorney Discipline  Montgomery District  search and seizure  Weekly10162018 

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October 3 and October 5, 2018 Digests

Posted By Administration, Tuesday, October 9, 2018

Kansas Supreme Court

Attorney Discipline

NO. 14,366—OCTOBER 3, 2018

FACTS: Jean Marie Bobrink, an attorney licensed to practice law in Kansas, voluntarily surrendered her license. At the time of surrender, there were two disciplinary complaints pending and she was operating under an active diversion agreement. Ms. Bobrink was disbarred in Missouri in January 2018.

HELD: The Court accepted the surrender and Ms. Bobrink is disbarred.

NO. 22,544—OCTOBER 3, 2018

FACTS: Robert E. Arnold voluntarily surrendered his license to practice law in Kansas. At the time of surrender, a complaint was being investigated by the Disciplinary Administrator. The conduct which prompted the investigation in Kansas served as the basis for Mr. Arnold's disbarment in Missouri in June 2018.

HELD: The court accepted the surrender, and Mr. Arnold is disbarred.


NO. 117,723—OCTOBER 5, 2018

FACTS: C.L. was born in September 2016. Mother was not aware that she was pregnant. She placed C.L. for adoption while still in the hospital, and he was placed with custodial parents who hoped to adopt him. A social worker contacted the man who mother believed was the biological father. He was told about the baby and was asked to relinquish his parental rights. Father instead obtained counsel and sought to establish paternity; genetic testing later confirmed that father is C.L.'s biological parent. The potential adoptive parents filed an adoption petition and asked the court to terminate father's rights. Father appeared in that action and opposed adoption. The district court terminated father's parental rights, finding that father abandoned C.L. after learning of his birth. The court of appeals affirmed that finding and father's petition for review was granted.

ISSUE: (1) Sufficiency of the evidence to show support of the child

HELD: The facts established in the district court show that father made adequate efforts to support and meet his child. The putative adoptive parents made untrue allegations in their adoption petition, and the adoption petition prevented father from making efforts to support his child. This case must be remanded so that C.L. can begin to be integrated in to father's home.

STATUTE: K.S.A. 2016 Supp. 59-2921(a), -2136(h)(1), -2136(h)(1)(A), -2136(h)(1)(C), -2136(h)(2)(A), -2136(h)(2)(B)


appeals—criminal procedure—jurisdiction—statutes
state v. weekes
saline district court—Case Remanded
court of appeals—reversed
No. 115,739—october 5, 2018

FACTS: Weekes was convicted of unlawful possession of hydrocodone and sentenced to 12 months’ probation with underlying 30-month prison term. State later filed motion to revoke probation. Weeks filed motion pursuant to State v. McGill, 271 Kan. 150 (2001), seeking a reduced underlying prison term or to be allowed to serve sentences concurrently. District court revoked probation, denied the motion to modify the sentence, and imposed the original underlying sentence. Weekes appealed. In an unpublished opinion, court of appeals dismissed the appeal for lack of jurisdiction, relying on State v. Everett, No. 111168, 2015 WL 4366445 (Kan.App.2015)(unpublished), rev. denied 305 Kan. 1254 (2016), and citing K.S.A. 2016 Supp. 2016 Supp. 21-6801(c)(1). Weekes’ petition for review granted.

ISSUE: Appellate jurisdiction

HELD: Review was limited to issue of appellate jurisdiction. Logical fallacies in Everett rationale are identified. Panel had jurisdiction to review whether the district court abused its discretion in denying Weekes’ motion for a post-probation-revocation sentence modification, pursuant to K.S.A. 2017 Supp. 22-3716(c)(1)(E), even if the denial results in the imposition of an original sentence that was a presumptive sentence for the crime of conviction. The panel’s dismissal for lack of jurisdiction is reversed. Appeal was reinstated and remanded to court of appeals for consideration on the merits.

STATUTES: K.S.A. 2017 Supp. 21-6803(q), 22-3716(c)(1)(E); K.S.A. 2016 Supp. 21-6820(c)(1)

appeals—constitutional law—criminal law—criminal procedure—evidence  fourth amendment—prosecutors
state v. lowery
shawnee district court—affirmed
No. 115,377—october 5, 2018

FACTS: Related to a shooting between two vehicles on victims’ wedding night, Lowery was convicted of charges including premeditated first-degree murder of Davenport-Ray, attempted premeditated first-degree murder of Ray, and unlawful discharge of a firearm at an occupied building. On appeal, Lowery claimed: (1) prosecutorial error during trial and in closing argument; (2) he was denied his right to be present when district court held hearing on Lowery’s motion in limine and compelled a State witness to testify pursuant to grant of immunity; (3) district court erred by instructing jury on law of aiding and abetting without modifying the standard instruction; (4) his post-arrest statements to law enforcement officers were involuntary and should have been suppressed; (5) the partially redacted video recording of his interview with law enforcement officers contained inadmissible evidence; (6) prosecutor’s questions to witness went beyond the scope of defense counsel’s direct examination and elicited hearsay testimony; (7) insufficient evidence supported his convictions; and (8) cumulative error denied him a fair trial.

ISSUES: (1) Prosecutorial error, (2) right to be present at every critical trial stage, (3) aiding and abetting instruction, (4) voluntariness of a defendant’s statements to law enforcement, (5) failure to redact evidence from defendant’s video-recorded statement, (6) hearsay evidence beyond the scope of direct examination, (7) sufficiency of the evidence, (8) cumulative error

HELD: Defendant cannot circumvent contemporaneous objection requirements of K.S.A. 60-404 by characterizing an appellate issue as prosecutorial error rather than evidentiary error. No review of evidentiary claims that were not preserved for appeal. No abuse of district court’s discretion in denying Lowery’s motion for a new trial based on prosecutor’s comments and gestures. No error in prosecutor’s use of puzzle and picture analogies in this case which is factually distinguished from State v. Crawford, 300 Kan. 740 (2014), and State v. Sherman, 305 Kan. 88 (2016). Lowery’s claim of prosecutorial error for violating trial court’s orders in limine is unavailing. While a close call, prosecutor did not comment on witness credibility. Prosecutor improperly used “golden rule” argument in closing argument, and egregiously misstated the DNA evidence and testimony of the DNA analyst, but on facts in this case these were not reversible errors.

Kansas Supreme Court has not addressed whether an immunity hearing is a critical stage of the proceedings at which the defendant must be present, but other courts have found the defendant has no such right. However, district court violated Lowery’s statutory rights by conducting a hearing on Lowery’s motion in limine without Lowery or defense counsel present. Under facts in this case, the error was harmless.

Lowery’s instructional error claim is not reviewed because Lowery invited the error.

There is no express requirement in Miranda that a defendant be informed of the right to stop answering questions at any time and terminate the interview. Instead, this is part of the totality of the circumstances to be reviewed in the voluntariness calculus. Here, Lowery’s statements to law enforcement were freely and voluntarily made. District court’s Jackson v. Denno ruling is affirmed.

New allegations of material that should have been redacted were not preserved for appellate review. On claims properly before the court, the jury should not have heard officer comments on the possible sentence imposed if Lowery were to be found guilty, officer explanations on the law of felony murder, or statements implying that Lowery had a criminal history. But it is presumed the jury followed the instruction to not consider the ultimate disposition in this case.

Prosecutor’s questions were not outside the scope of direct examination. Officer’s testimony did not constitute inadmissible hearsay evidence, and no reasonable probability that evidence from this testimony affected the outcome of trial.

Evidence viewed in light most favorable to the State was sufficient to support Lowery’s convictions.

The three prosecutorial errors found in this case were harmless beyond a reasonable doubt, and the fairness of Lowery’s trial was not impacted by his absence at the motion hearing. Evidence against Lowery was not overwhelming, but circumstantially strong enough that cumulative effect of the errors did not deprive Lowery a fair trial.

STATUTES: K.S.A. 2017 Supp. 21-5210(b), 22-3208(7), -3501, -3601(b)(3)-(4), 60-261, 455, -455(a), -460; K.S.A. 22-3403(3), 60-404, -421, -455, -446, -447

attorneys—criminal law—criminal procedure—ethics—evidence  judges—juries—
jury instructions—prosecutors—statutes—venue
state v. miller
douglas district court—affirmed
No. 114,373—october 5, 2018

FACTS: Miller was convicted of premeditated first-degree murder of his wife. State v. Miller, 284 Kan. 682 (2007)(Miller I). In 2012 unpublished opinion, court of appeals granted Miller post-conviction relief and ordered a new trial. Kansas Supreme Court affirmed that decision. Miller v. State, 298 Kan. 921 (2014)(Miller II). On retrial, Miller again convicted of premeditated first-degree murder. Miller appealed. As structured by the court, Miller claims trial court erred by: (1) denying motion for change of venue given extensive publicity surrounding first trial and corresponding pretrial publicity on retrial; (2) denying Miller’s for-cause challenges to 10 prospective jurors who knew of Miller’s prior conviction and/or had a preconceived opinion he was guilty; (3) denying Miller’s motion to first have jury determine if victim’s death was homicide, and then have same jury determine the degree of homicide; (4) denying portion of proposed instruction that limited jury’s consideration of dating site evidence as evidence of homicide; (5) denying motion to disqualify the district attorney’s (DA’s) office based on conflict of interest with witness and because office in possession of information from Miller’s first trial that was protected by attorney-client privilege; and (6) three times advancing an interpretation of the evidence that was not supported by the record. Miller also claimed (7) that medical evidence from State’s forensic pathologist was insufficient to establish the victim had been killed by another. Miller further claimed the trial court erred by: (8) denying motions for mistrial after prosecutor mentioned pornography in violation of in limine order, and after State’s rebuttal witness testified outside the scope of permissible rebuttal; (9) admitting evidence Miller sought to exclude through motion in limine of Miller’s extramarital affair, Miller accessing dating websites, Miller being the beneficiary of wife’s life insurance policy, and graphic photographs; and (10) granting State’s motion on first day of retrial to admit Miller’s testimony in Miller I without giving timely notice of intent to introduce this prior testimony. Finally, Miller claimed cumulative error denied him a fair trial.

ISSUES: (1) Change of venue, (2) trial court’s denial of for-cause juror challenges, (3) Denial of bifurcation request, (4) denial of complete requested limiting instruction, (5) disqualification of district attorney’s office, (6) judicial misconduct, (7) state’s failure to prove a homicide, (8) denial of mistrial motions, (9) motions in limine and admissibility of evidence, (10) admission of defendant’s prior trial testimony, (11) cumulative error

HELD: Millers’ constitutional challenge to venue fails Factors identified by United States and Kansas supreme courts are reviewed and applied, finding no presumed or actual prejudice from pretrial publicity in this case. Circumstances in State v. Carr, 300 Kan. 1 (2007), are compared.

Defense arguments regarding use of peremptory challenges, and trial court’s refusal to grant for-cause challenges, are examined. Even if district court erred in refusing to strike one prospective juror (A.S.) for cause, under facts in this case there was no showing of prejudice, and no violation of Miller’s constitutional or statutory rights.

Miller’s bifurcation claim is evidentiary rather than constitutional. District court did not err in refusing to bifurcate trial by separate elements.

No showing of error in district court’s modification of the proposed limiting instruction.

Under facts in this case, which included defendant’s son living rent free with an Assistant District Attorney (ADA), and DA’s office acquiring but not disclosing possession of a day planner of Miller’s attorney in first trial, district court did not abuse its discretion in refusing to disqualify the DA’s office based on conflict of interest or DA’s unprofessional handling of the planner. Kansas Rules of Professional Conduct discussed.

Judicial misconduct claim fails. Taken in context, trial judge’s response was not erroneous, much less misconduct.

Miller did not object to State forensic pathologist’s cause-of-death opinion until basis for that opinion had been thoroughly parsed and interminably repeated through multiple examinations by both parties. Failure to make timely contemporaneous objection defeats review of the merits of this evidentiary claim.

Prosecutor’s mention of pornography was error, but error was harmless in this case. Likewise, if any error in rebuttal witness testimony, the error was harmless.

In following precedent set in Miller I, district court did not err by admitting evidence of extramarital affair for purpose of motive. Under facts in this case, probative value of detective’s testimony about Miller accessing dating websites is tenuous but any error was harmless, and no error in admitting evidence of life insurance. District court’s admission of graphic photographs is affirmed based on law of the case established in Miller I.

Trial court’s decision to allow Miller’s retrial counsel to inspect Miller I testimony and respond with arguments was a reasonable remedy of the discovery violation. Under circumstances in this case, district court did not abuse its discretion in refusing to continue or suspend the retrial for a separate hearing on State’s motion to admit the Miller I testimony.

Viewed in context of the entire record, Miller was not so prejudiced by cumulative effect of errors declared in this case as to deny him a fair trial.

DISSENT (Johnson, J.): Notwithstanding practical and emotional costs of yet another retrial that likely again would result in a conviction, Constitutions require that result to maintain integrity of our criminal justice system. Cannot condone the conviction in this case because the retrial was fundamentally unfair. Unfairness starts with retrial’s venue, citing his dissent in Carr. Allowing juror A.S. to sit on retrial jury was fundamental error. Testimony about Miller accessing dating websites had no logical connection to a relevant fact that would make it more likely that Miller killed his wife. Imprudent to apply law of the case doctrine to uphold admission of graphic photographs. And testimony of State’s forensic pathologist should have been considered in assessing impact of cumulative error.

DISSENT (Wurtz, J., appointed to hear case vice Justice Stegall): Agrees that if an erroneous expert opinion on cause of death is added to the cumulative error analysis in this case, prejudice caused by cumulative effect of all errors denied Miller a fair trial. Also agrees that expert opinion on the cause of death was not based on medical evidence but rather on the doctor’s factual determination that Miller had lied about being in the room when his wife died. Would find Miller’s objection to expert opinion on the cause of death was sufficient to preserve the question for appellate review on the merits.

STATUTES: K.S.A. 2017 Supp. 22-3212(a)(1), -3212(i), -3601(b)(3), 60-242(b), -426, -426(b); K.S.A. 2014 Supp. 60-226(b)(6)(C), -226(b)(6)(C)(ii); K.S.A. 22-2101 et seq., -2616(1), -3423(1)(c), 60-101 et seq., -404, -407(f), -445, -456, -1507

criminal law—criminal procedure—evidence—jury instructions—prosecutors
state v. anderson
bourbon district court—affirmed
No. 116,710—october 5, 2018

FACTS: Anderson was convicted of child abuse and felony murder in shaken-baby case. On appeal he claimed: (1) district court failed to give multiple acts instruction to ensure jury unanimity as to whether Anderson injured victim by throwing down on the couch or by shaking; (2) district court erroneously admitted testimony under K.S.A. 60-455 of Bodinea person who had previously lived with Anderson and wifeabout Anderson’s prior aggressive behavior toward the child victim; and (3) during closing argument the prosecutor engaged in speculation not fairly based on the evidence by suggesting Anderson believed the State’s doctors were out to get him for the fun of it, by saying Anderson was trying to manipulate jury by calling the victim his son, and by saying Anderson lost his temper which resulted in a child with massive brain injury. Anderson also claimed cumulative error denied him a fair trial.

ISSUES: (1) Refusal to give a requested unanimity instruction, (2) admission of K.S.A. 60-455 evidence, (3) prosecutorial error in closing argument, (4) cumulative error

HELD: Court reviews distinction between multiple acts and alternative means. Here, jury did not have to choose between multiple acts. District court did not err in declining to give jury a unanimity instruction.

Under facts in this case, any error district court may have made in allowing K.S.A. 60-455 testimony of Bodine about Anderson’s prior treatment of the child victim was harmless.

Prosecutor’s comments about doctors’ motives constitute error. Prosecutor arguing that jury should attribute a bad motive to Anderson referencing the victim as his son was error. And prosecutor’s remarks about Anderson losing his temper were not supported by the record, and argued facts that were contrary to the evidence. Nonetheless, under facts in this case, no reasonable possibility that the absence of prosecutor’s erroneous comments would have changed outcome of the credibility and expert battles that Anderson lost.

Cumulative error claim fails.

STATUTE: K.S.A. 2017 Supp. 22-3601(b)(3), 60-261, -455, -455(b)

Tags:  Attorney Discipline  Bourbon District  disbarment  Douglas District  Saline District  Shawnee District  Wyandotte District 

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September 28, 2018 Digests

Posted By Administration, Monday, October 1, 2018

Kansas Supreme Court



NO. 119,012—SEPTEMBER 28, 2018

FACTS: Mason's license to practice law in Kansas was suspended for six months in December 2016 for violating multiple Kansas Rules of Professional Conduct. In December 2017, the Disciplinary Administrator's office filed a new complaint and a hearing panel determined that Mason violated KRPC 1.3 (diligence), 1.4(a) (client communication), and 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). The misconduct arose after Mason failed to filed essential tax forms for an organization, which resulted in the revocation of its 501(c)(3) status.

HEARING PANEL: The hearing panel found that Mason failed to act with reasonable diligence when representing his client. There were several aggravating factors, and the panel also found mitigators including mental health issues and his willingness to cooperate with the disciplinary process. The disciplinary administrator recommended discipline of indefinite suspension, retroactive to the December 2016 date of Mason's initial, six-month suspension. Mason suggested discipline of censure and that he be placed on probation. The hearing panel determined that probation was not appropriate in this case and recommended discipline of indefinite suspension.

HELD: Mason filed no exceptions to the hearing panel report. The court adopted the hearing panel's findings and conclusions and concluded that indefinite suspension was the appropriate discipline. Before Mason can be reinstated, Mason must provide a written report from a licensed mental health provider and a plan for future practice. The indefinite suspension runs from the date of this order, a decision that was prompted by the serious nature of the violations and the misleading nature of Mason's comments at the prior disciplinary proceeding.



constitutional law—criminal procedure—motions—sentences—statutes
state v. Lehman
sedgwick district court—reversed, modified sentence vacated, and remanded
court of appeals—reversed
no. 112,500—september 28, 2018

FACTS: Lehman was convicted in 2009 of sexual battery, and sentenced to 31 months in prison with 24 months post-release supervision. State filed 2013 motion to correct an illegal sentence, claiming K.S.A. 22-3717(d)(1)(G) required mandatory lifetime of post-release supervision. Motion was ultimately heard in June 2014, after KDOC had discharged Lehman from post-release supervision. District court ordered lifetime post-release supervision, finding Lehman’s discharge did not deprive the court of jurisdiction to correct an illegal sentence. Lehman appealed. Court of appeals affirmed in unpublished opinion. Lehman’s petition for review granted.  

ISSUE: District court’s authority to modify a complete sentence

HELD: Invited error doctrine does not preclude State’s motion to correct an illegal sentence. Nor do contract principles prevent State from challenging the legality of a sentence it agreed to recommend in a plea agreement. Cases from other state and federal courts are reviewed. When Lehman completed his original sentence—even if illegal—without a court order that superseded the judgment of the sentencing judge, he was no longer subject to the jurisdiction of the criminal justice system. Any additional sentence imposed for the same offense after completing the original sentence constitutes a multiple punishment proscribed the double jeopardy provision of federal and Kansas constitutions. Argument that State’s notice of filing the motion to correct an illegal sentence negated any expectation of finality Lehman may have had upon completing his original sentence is unavailing.

CONCURRENCE (Rosen, J.): Agrees that under facts of this case, Lehman had a legitimate expectation in the finality of his sentence. Writes separately to emphasize the special circumstances of this case. If State had filed motion to correct and had obtained a judicial stay of finality before Lehman’s sentence had expired, that would have preserved the sentencing court’s jurisdiction. Instead, State did not obtain service on Lehman until after his sentence had expired.

CONCURRENCE (Stegall, J.): Concurs in the result but would not reach the double jeopardy question because precedent established in State v. Montgomery, 295 Kan. 837 (2012), would apply to foreclose the State’s claim.  

STATUTE: K.S.A. 21-4704(e)(2), 22-3504, -3504(1)-(2), -3717(d)(1)(G)


criminal law—criminal procedure—sentences—statutes
state v. lamone
sedgwick district court—judgment vacated and case remanded
court of appeals - affirmed
no. 115,451—september 28, 2018

FACTS:  Lamone was convicted of driving under the influence (DUI). District court enhanced the sentence based on Lamone’s two prior Wichita Municipal Court convictions. Lamone appealed, arguing the Wichita ordinance prohibits a broader range of conduct than the Kansas statute. Court of appeals vacated the sentence and remanded case to district court for resentencing. 54 Kan. App. 2d 180 (2017). State’s petition for review granted.

ISSUE: Prior convictions used to enhance sentence

HELD: This issue was addressed and resolved in State v. Gensler, 308 Kan. 674 (2018). A prior municipal court conviction for DUI under a Wichita ordinance prohibiting operation of a vehicle under certain circumstances, when the element of “vehicle” is defined more broadly that the “vehicle” element in the state DUI statute, cannot be used to elevate a later violation of the state statute to a felony. Lamone’s sentence is vacated and case is remanded to district court for resentencing.

DISSENT (Stegall, J.): Dissents from the result and rationale in this case for same reasons stated in his dissent in Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1567, -1567(i)(1); K.S.A. 2016 Supp. 8-1567

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September 18 and 21, 2018 Digests

Posted By Administration, Monday, September 24, 2018

Kansas Supreme Court

Attorney Discipline

NO. 19,846 — September 18, 2018

FACTS: In a letter dated September 13, 2018, Michael P. Peloquin voluntarily surrendered his license to practice law. At the time of surrender, a formal complaint was pending alleging violations of: KRPC 1.3 (diligence); 1.4 (communication); 1.16 (termination of representation; 3.2 (expediting litigation); 5.5 (unauthorized practice of law); 7.3 (client solicitation); and 8.4 (professional misconduct). There were also allegations that Peloquin violated Supreme Court Rule 218. The court accepted the surrender of Peloquin's license, and he is disbarred.


NO. 113,097—SEPTEMBER 21, 2018

FACTS: Alain Ellis and her husband, Dr. Harvey Ellis, both executed living trusts. After Alain died, Harvey served as trustee of Alain's trust. The terms of Alain's trust provided that all income went to Harvey during his life. Upon his death, the trust was to be divided equally between the Ellises' two sons, with each receiving income from the principal. While acting as trustee, Harvey improperly converted a substantial amount from Alain's trust and placed the converted assets into his own trust. After Harvey died, the improper transfers were discovered and over $1 million was returned to Alain's trust. Alain's trust and the trust beneficiaries sought additional damages and filed suit against Harvey's trust, Harvey's estate, and individuals who advised Harvey while he was still living. Before trial, the district court ruled that Alain's trust could not seek punitive damages from Harvey's estate because Harvey was deceased. It also concluded that Alain's trust was not entitled to recover double damages. Alain's trust appealed these rulings to the court of appeals, which affirmed the district court's rulings. Alain's petition for review was granted on these two issues.

ISSUES: (1) Punitive damages from a deceased trustee; (2) double damages

HELD: The question of whether a plaintiff can recover punitive damages from the estate of a deceased tortfeaser is an issue of first impression. The Kansas statutes are silent on this issue. But the statutes do provide that an estate can stand in the shoes of a deceased tortfeaser, especially because an estate exists to pay the financial obligations of the deceased. And a threat of punitive damages may serve to discourage wrongdoing by trustees. For these reasons, a trust may seek punitive damages from the estate of a deceased trustee. Since that issue was not put to a jury in this case, the case must be remanded. This rationale also allows for a plaintiff to seek statutory double damages against a trustee's estate because those damages are penal in nature and serve the same purpose as punitive damages.

STATUTE: K.S.A. 58a-1002, -1002(a), -1002(a)(3), -1002(c), 60-1801, -3702, -3702(a), -3702(c), -3702(d), -3703

NO. 115,126—SEPTEMBER 21, 2018

FACTS: Three individuals worked for Financial Associates as area managers. These individuals trained new insurance agents and provided administrative support. As part of their compensation, the area managers received one percent of the premium paid on all policies from Blue Cross/Blue Shield of Kansas City. This compensation was due to them not only during their employment but after their employment ended, until the policies they had signed were no longer renewed. The payments were made for more than 20 years. After Financial Associates sold its agency to Blue Cross, Blue Cross stopped paying the area managers this one percent premium portion. After the area managers asked for the payment to be resumed and Blue Cross refused, the area managers filed suit claiming breach of contract. The district court decided in favor of Financial Associates, concluding that the area managers' contracts did not govern the one percent premium payment and that any oral agreement to make that payment was unenforceable under the statute of frauds. The Court of Appeals affirmed, and the area managers' petition for review was granted on the statute of frauds issue.

ISSUE: (1) Statute of frauds full-performance exception

HELD: The plain language of K.S.A. 33-106 does not include any exceptions to the statute of frauds. But the full-performance exception to the statute of frauds was developed in common law and recognized in Kansas shortly after statehood. The legislature's failure to change the statute shows that the legislature has acquiesced to the full-performance exception. In Kansas, the full-performance exception requires the full performance of only one party to an agreement. Because the area managers performed their part of the contract for over 20 years, the full-performance exception applies, and the alleged oral agreement is removed from the statute of frauds.

STATUTE: K.S.A. 33-106

Kansas Court of Appeals


NO. 118,696—SEPTEMBER 21, 2018

FACTS: Pearson was arrested and his breath test showed alcohol levels above the legal limit. After being served with a suspension notice, Pearson timely requested an administrative hearing with the Department of Revenue. Pearson appeared for the scheduled hearing but the arresting officer did not, and the hearing officer dismissed the suspension order. A few days later, the hearing officer learned that the officer had attempted to notify officials that he was hospitalized and would not be able to attend the hearing. After receiving that information, the hearing officer withdrew the dismissal order and set a new hearing date to consider Pearson's suspension. Pearson objected, but the hearing was held and a new hearing officer affirmed the suspension of Pearson's driver's license. After Pearson filed a petition for judicial review, the district court affirmed, finding that the hearing officer was a party to the proceedings and could withdraw the dismissal. Pearson appealed.

ISSUES: (1) Jurisdiction; (2) ability to withdraw an order

HELD: The order withdrawing the dismissal and setting the matter for a second hearing was not a final agency action. As such, Pearson could not have filed a petition for judicial review of that order. Pearson was allowed to appeal only at the conclusion of the second proceeding, where the new hearing officer affirmed the suspension of his driving privileges. There is no express or implicit statutory authority to allow a hearing officer to reconsider, grant a rehearing, or set aside an administrative suspension order after the order's effective date. The district court erred when it found that the hearing officer was a party to the action, giving her the authority to withdraw the order of dismissal. In the absence of a request for reconsideration, the hearing officer could not withdraw the order of dismissal and reinstate the proceedings against Pearson.

STATUTES: K.S.A. 2017 Supp. 8-259(a), -1002, -1002(a), -1002(f), -1020, -1020(d)(1), -1020(k), -1020(m), -1020(n), -1020(o), -1020(p), -1020(q), 77-621(a)(1); and K.S.A. 77-607(a), -607(b)(1), -607(b)(2)

Tags:  Attorney Discipline  Johnson District  Sedgwick District  Wyandotte District 

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September 14, 2018 Digests

Posted By Administration, Monday, September 17, 2018

Kansas Court of Appeals


NO. 118,457 – SEPTEMBER 14, 2018

FACTS: After a contentious divorce, the district court entered judgment against Robert Gerleman for back spousal maintenance owed to Jeannette, as well as judgment on Robert's previous agreement to pay Jeannette a portion of his military retirement pay. In an effort to collect past-due amounts, the district court issued orders of garnishment to Robert's employer. Robert's father was diagnosed with brain cancer in 2017, and Robert took off more than two weeks from work in order to assist his father during surgery and treatment. Citing K.S.A. 60-2310(c), Robert asked that the garnishment be released because of the illness and his inability to work. The district court refused to issue the release, and Robert appealed.

ISSUE: (1) Interpretation of K.S.A. 60-2310(c)

HELD: K.S.A. 60-2310(c) allows for a release of garnishment if the debtor is prevented from working for more than two weeks because of illness of the debtor or any family member of the debtor. Under the plain meaning of the statute, Robert's father is "any member" of Robert's family. There is no requirement in the statute that the family member be an immediate family member residing with the debtor. The affidavit submitted by Robert was sufficient to prove that he missed work for more than two weeks while caring for his father. The district court's decision is reversed, and the case is remanded for a factual determination about when the garnishment could resume.

STATUTES: K.S.A. 2017 Supp. 17-2205(a)(4)(A), 60-2310(c)


criminal procedure — motions — sentences — statutes
State v. Smith
Sedgwick District Court – sentence vacated, case remanded
No. 118,042 — September 14, 2018

FACTS: Smith convicted in 2006 of aggravated kidnapping. In 2014 he filed a K.S.A. 22-3504 motion to correct an illegal sentence, challenging the sentencing court’s criminal history scoring of a South Carolina burglary conviction as a personal felony in Smith’s criminal history. District court denied the motion and Smith appealed. In unpublished opinion the Court of Appeals vacated Smith’s sentence and remanded for resentencing. On remand, district court again found the South Carolina conviction to be a person felony, and denied Smith’s motion. Smith appealed. Issue before the panel centers on whether the holding in State v. Wetrich, 307 Kan. 552 (2018), was a change in the law that occurred after Smith was sentenced. State argued it was, and through retroactive application of the 2017 amendment to K.S.A. 22-3504, Smith’s sentence was not an illegal sentence.

ISSUE: (1) Sentencing and (2) Classification of an Out of State Conviction

HELD: Kansas Supreme Court’s decision in Wetrich was not a change in the law within the meaning of the 2017 amendment to the definition of an illegal sentence in K.S.A. 2017 Supp. 22-3504(3).  Instead, the decision reinterpreted the meaning of the term “comparable offenses” within the Kansas Sentencing Guidelines Act. No final decision on whether the 2017 amendment to K.S.A. 22-3504 can apply retroactively in Smith’s case, but panel rejects State’s claim that that 2017 amendment defining an illegal sentence is jurisdictional. Here, the South Carolina burglary statute that Smith was convicted under is not identical to or narrower than the Kansas burglary statute in effect when Smith committed his current crime of conviction, thus based on holding in Wetrich, Smith’s prior South Carolina burglary cannot be scored as person felony for criminal history purposes. Sentence is vacated and case is remanded for resentencing to classify the South Carolina burglary as a nonperson felony.

STATUTES: K.S.A. 2017 Supp. 21-6810(a), -6811(d), -6811(e), -6811(e)(3), 22-3504(1), -3504(3); K.S.A. 1993 Supp. 21-4711(e); K.S.A. 21-3110(7), -3715, -4711(e), 22-3504, 60-1507(f)

Tags:  divorce  Douglas District  motions  Sedgwick District  statutory construction 

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September 5 and September 7, 2018 Digests

Posted By Administration, Monday, September 10, 2018

Kansas Supreme Court


NO. 114,863 – SEPTEMBER 5, 2018

FACTS: Odo's license to practice law in Kansas was suspended for one year in July 2016. In July 2017, Odo filed a petition for reinstatement. After a hearing, the Kansas Board for Discipline of Attorneys recommended that the petition for reinstatement be granted. After careful consideration, the court accepted the panel's findings and grants the petition for reinstatement.


NO. 113,675—SEPTEMBER 7, 2018

FACTS: Central Kansas Medical Center is a nonprofit corporation which is licensed to operate an ambulatory surgical center. CKMC contracted with Dr. Hatesohl to provide family medicine services. The contract contained a postemployment clause which prevented Dr. Hatesohl from practicing medicine within a 50-mile radius of CKMC. Although he was dissatisfied with the way that the family practice merged with an urgent care facility, Dr. Hatesohl worked the full term of his contract. When he left, CKMC let him know that it would enforce all post-employment covenants. Dr. Hatesohl responded that he believed his employment contract was void because it violated the prohibition against the corporate practice of medicine doctrine. The day after his contract expired, Dr. Hatesohl entered a new contract with Great Bend Regional Hospital to practice family medicine. CKMC sought injunctive relief and damages alleging breach of contract. Dr. Hatesohl countered with a claim that CKMC's ambulatory surgical center license did not cover family medicine. The district court agreed and granted Dr. Hatesohl's motion for summary judgment, finding his employment contract was illegal.  The court of appeals reversed and the petition for review was granted.

ISSUE: (1) Validity of employment contract

HELD: The practice of medicine is limited to licensed persons, not corporations. But a corporation which is licensed by the State may employ a physician to provide medical services, with the caveat that the physician may not practice medicine that the corporation is not licensed to provide. Since CKMC only held an ambulatory surgical center license, its power to provide family medicine services through Dr. Hatesohl had to flow from that license. It did not. An ambulatory surgical center license is not broad enough to encompass a family practice. Because Dr. Hatesohl was hired to practice medicine that CKMC was not licensed to perform, his employment contract violated the corporate practice of medicine doctrine and was void.

CONCURRENCE (Stegall, J.): The corporate practice of medicine doctrine should be abandoned because it is a judicial intrusion in to the legislative arena and was created to aid special interest groups. The decision of the majority is correct because the court was not asked to overturn the doctrine and stare decisis compels this decision.

STATUTES: K.S.A. 2017 Supp. 17-2707(b)(9), 40-3401(f), 60-256(c)(2), 65-2803(a); K.S.A. 17-2709(a), 48-1603(o), -1607(a), 65-425(a), -425(b), -425(e), -425(f), -425(h), -427, -431(a), -431(c)


NO. 115,067—SEPTEMBER 7, 2018

FACTS: Wilson was driving excessively fast when he collided with the back of car carrying McCullough and his passenger, Risley. McCullough and Risley filed a lawsuit against Wilson, seeking monetary damages for lost wages, pain and suffering, and medical expenses. Risley's medical expenses were paid by the PIP coverage provided by his AAA insurance. But AAA never requested reimbursement from Wilson's insurance company. After a jury decided in Risley's favor, Wilson sought to overturn part of the verdict on grounds that Risley's cause of action passed to AAA and that only AAA could recover damages for Risley's medical expenses. The district court denied the motion and the Court of Appeals affirmed. Wilson's petition for review was granted.

ISSUES: (1) Assignment of subrogation rights

HELD: The doctrine of stare decisis suggests that the district court's decision should be affirmed. Especially in cases involving contracts, reliance on prior precedent is important. Because there is no reason to depart from prior holdings, Risley is entitled to the entire verdict awarded by the jury, including the portion covering medical expenses.

STATUTE: K.S.A. 40-3103, -3113a, -3113a(c)


State v. Clapp
reno district court—reversed and remanded
court of appeals—reversed
No. 112,842—September 7, 2018

FACTS: Clapp was sentenced to a 118-month prison term and granted a downward dispositional departure to 36 months probation with a 60-day jail sanction to be suspended when inpatient drug treatment had been arranged. State filed its first motion to revoke in January 2014. District court revoked probation and imposed a180-day prison sanction. State filed a second motion to revoke in August 2014. District court revoked probation and imposed the underlying sentence, specifically stating he did not feel Clapp valued Community Corrections as a way to help change how Clapp thought and lived his life. District court agreed that Clapp had not committed a new crime, had not absconded, had a job, and was still in treatment, but commented on the convictions leading to Clapp’s probation, his criminal history, and his dishonesty with his intensive supervision officer. Clapp appealed, claiming in part the district court failed to make the statutory findings required by K.S.A. 2014 Supp. 22-3716(c)(9) to bypass the statutory intermediate sanctions for parole violators. Court of appeals affirmed in an unpublished opinion, finding in part that K.S.A. 2014 Supp. 22-3716 does not require district court to make statutory findings to bypass intermediate sanctions when a violator has already served a 180-day intermediate sanction, and that, even if required in this case, the district court implicitly satisfied the particularity requirement to revoke based upon public safety. Clapp’s petition for review was granted.

ISSUE: Probation violation sanctions under 2013 and 2014 Versions of K.S.A. 22-3716

HELD: District court’s revocation of Clapp’s probation under subsection (c)(1)(E) for a second probation violation did not conform to the graduated sanctioning scheme in the 2013 and 2014 versions of K.S.A. 22-3716. For a second violation, the district court could have utilized the prison sanction of 120- or 180-days under subsections (c)(1)(C)-(D). Imposition of the underlying sentence on a probation violator was not authorized under subsection (c)(1)(E) because no previous jail sanction pursuant to K.S.A. 2014 Supp. 22-3716(b)(4)(A)-(B) or K.S.A. 2014 Supp. 22-3716(c)(1)(B) had been imposed, notwithstanding the 60-day jail term in the original sentence or the district court’s error in imposing a 180-day sanction for Clapp’s first violation. Nor did the district court set forth the particularized reasons required by K.S.A. Supp. 22-3716(c)(9) to bypass the graduated intermediate sanctions. Instead, district court’s remarks were akin to historical reasoning for revoking probation prior to the 2013 amendment to K.S.A. 22-3716. Reversed and remanded for a new dispositional hearing to comply with K.S.A. 2014 Supp. 22-3716.

STATUTES: K.S.A. 2014 Supp. 22-3716, -3716(b), -3716(b)(4)(A)-(B), -3716(c)(1)(A)-(E), -3716(c)(8), -3716(c)(9), -3716(c)(12); K.S.A. 2013 Supp. 22-3716(c)(1)(D)-(E), -3716(c)(8), -3716(c)(9); and K.S.A. 22-3504(1)

Tags:  Attorney Discipline  Barton District  probation  Reno District  sentencing  statutes  Wyandotte District 

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August 31, 2018 Digests

Posted By Administration, Tuesday, September 4, 2018
Updated: Tuesday, September 4, 2018

Kansas Supreme Court


criminal law—criminal procedure–probation—sentencing—statutes
State v. Sandoval
Sedgwick district court—affirmed
court of appeals—affirmed
No. 113,299—august 31, 2018

FACTS: Sandoval was convicted in 2011 of aggravated indecent solicitation. Probation was ordered with an underlying 34 month prison term and 24 month postrelease supervision. Probation revoked in 2012. District judge denied defense request for modification, and ordered service of the original underlying sentence. Later recognizing the 24-month postrelease supervision did not comply with the sentencing statute at the time of Sandoval’s crime, State filed K.S.A. 22-3504 motion seeking substitution of lifetime postrelease supervision. District judge granted the motion. Sandoval appealed, arguing the district judge was empowered by K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii) to impose a lesser sentence than the lifetime term required at the original sentence, thus no illegality existed in the postrevocation sentence. Court of appeals affirmed in unpublished opinion. Sandoval’s petition for review granted.

ISSUE: Sentencing after probation revocation

HELD: After revoking probation, a district judge may choose to sentence anew, even if some component of the original sentence was illegal because it failed to match a mandatory statutory minimum. In the alternative, a judge may simply require the defendant to serve the original sentence. If a new sentence is pronounced from the bench after probation revocation, any original illegality no longer exists, and the new sentence is not subject to challenge or correction under K.S.A. 22-3504. If the judge instead requires the defendant to serve the original sentence, any original illegality continues to exist and is subject to challenge or correction under K.S.A. 22-3504(1). Here, no new sentence was imposed. The judge who revoked Sandoval’s probation explicitly declined to modify the original sentence and required Sandoval to serve it. This left an illegal postrelease term in place and open to correction. State v. McKnight, 292 Kan. 776 (2011), is factually distinguished.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J., and Biles, J.): Write separately to reinforce majority’s decision with alternative and more broadly applicable plain language rationale. K.S.A. 2017 Supp. 22-3716(b)(3)(B), read as a whole including introductory “[e]xcept as otherwise provided,” has additional benefit of harmonizing the statute with the explicit purpose of the Kansas Sentencing Guidelines Act: uniformity. 

DISSENT (Johnson, J.)(joined by Rosen, J.): A judge pronouncing sentence after probation revocation inevitably sentences anew, and any illegality in the original sentence no longer exists. While judge in this case did not appreciate at time of revocation the error in the postrelease supervision term in the original sentence, when he refused to modify that term, he effectively reduced it. This reduction was legal and could not be modified through a motion under K.S.A. 22-3504.  Facts in this case are not meaningfully different from McKnight. Would vacate the lifetime postrelease supervision component of the sentence and remand for journal entry substituting a term of 24 months. 

STATUTES: K.S.A. 2017 Supp. 22-3504(3), -3716)(b)(3)(B)(iii); K.S.A. 21-6806(c), 22-2201(3), -3504, -3504(1), -3716, -3716(b), -3717(d)(1)(B), -3717(d)(1)(G), -3717(d)(2)(G)


criminal law—criminal procedure—probation—sentencing—statutes
state v. roth
finney district court—reversed and remanded
court of appeals—affirmed
No. 113,753—august 31, 2018

FACTS: Roth was convicted of aggravated sexual battery and two counts of aggravated burglary. Sixty months of probation ordered with underlying prison term totaling 102 months and 24 month postrelease supervision. When probation was revoked in 2010, district judge modified the prison term to run the three sentences concurrently instead of consecutively, with the 24-month postrelease supervision period. In 2014, State filed motion to correct an illegal sentence, seeking the mandatory lifetime postrelease supervision for Roth’s crime. Roth argued the postrelease supervision component of the postrevocation sentence was a legal “lesser sentence” under K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii). District judge ruled the 24-month postrelease term was illegal and ordered lifetime postrelease supervision. Roth appealed. Count of appeals affirmed in unpublished opinion. Roth’s petition for review granted. 

ISSUE: Sentencing after probation revocation

HELD: As in Sandoval (decided this same date), Roth’s appeal addresses limits of a district judge’s sentencing power after probation revocation. Here, the judge who revoked probation chose to give Roth a “lesser sentence” as expressly permitted by K.S.A. 2017 Supp. 22-3716(b)(3)(B)(iii), and this new sentence was not subject to challenge or correction under K.S.A. 22-3504. Court of appeals is reversed. Lifetime postrelease supervision component of Roth’s sentence is vacated and case is remanded for journal entry modifying the sentence to substitute a term of 24 months of postrelease supervision. 

CONCURRENCE (Johnson, J.)(joined by Rosen, J.): Concurs for same reasons set out in his dissent in Sandoval.

DISSENT (Beier, J.)(joined by Nuss, C.J., and Biles, J.): Dissents for reasons set out in her concurrence in Sandoval.

STATUTES: K.S.A. 2017 Supp. 22-3716(b)(3)(B), -3716(b)(3)(B)(iii); K.S.A. 2010 Supp. 22-3717(d)(1)(G), -3717(d)(2)(I); K.S.A. 21-3518(a)(1), -3716, 22-3504, -3504(1)

Tags:  Concurrence  Dissent  Finney District  Sedgwick District 

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August 21 and 24, 2018 Digests

Posted By Administration, Monday, August 27, 2018

Kansas Supreme Court

Attorney Discipline

NO. 13,026—AUGUST 21, 2018

FACTS: Mandelbaum has been accused of violating Kansas Rule of Professional Conduct 8.4(b) pleading guilty to a felony count of attempting to evade or defeat tax. On the day of his plea, Mandelbaum voluntarily surrendered his license to practice law in Kansas. The court accepted his surrender and he is disbarred.



NO. 115,819—AUGUST 24, 2018

FACTS: Trear purchased land from Chamberlain in 1986. The sale contract included a preemptive provision covering an adjoining tract of land; the provision gave Trear the right of first refusal should Chamberlain wish to sell the parcel. In 2013, Chamberlain offered the parcel to Trear for $289,000. The offer stated that it would expire after eight days and that silence would be deemed as a refusal to purchase. Trear did not respond, and Chamberlain listed the parcel for $295,000. The property did not sell; a year later, Chamberlain sold part of the parcel to her daughter for $91,124. At that time, Trear sued, claiming that she violated his right of first refusal. As a remedy, he asked to be able to purchase the land from the daughter for the price that she paid. The district court ruled that the right of first refusal clause violated the rule against perpetuities and was unenforceable. It also held that the clause did not violate the statute of frauds and that Chamberlain did not comply with the provision requiring right of first refusal to Trear. Trear appealed the dispositive rule against perpetuities decision. Chamberlain cross-appealed arguing that she was entitled to judgment on the statute of frauds and contract compliance arguments. The court of appeals reversed, overruling the district court's rule against perpetuities decision. It agreed with the district court on the statute of frauds issue and that Chamberlain did not fully perform under the original purchase contract. The only issue preserved in the petition for review was whether Chamberlain complied with the contractual right of first refusal provision.

ISSUE: (1) Contract interpretation

HELD: Chamberlain initially complied with the contract when she offered to sell Trear the entire parcel for $289,000. He chose not to pursue the offer. Any interpretation that differs from this conclusion reads into the contract something that is not there and is erroneous. Similarly, the contract did not require Chamberlain to again contact Trear and offer him the smaller parcel. But factual issues remain regarding whether Chamberlain acted with good faith and in fair dealing. Because there remain factual questions about whether Chamberlain acted in good faith, this case must be remanded for further factfinding.

CONCURRENCE AND DISSENT (Johnson, J. joined by Beier, J.): The majority's decision is correct regarding the contract interpretation. But there is no need for a remand to determine whether Chamberlain acted in good faith.

STATUTES: No statutes cited.


NO. 111,105—AUGUST 24, 2018

FACTS: Castleberry suffered a stroke and, a year later, fell and sustained a fatal head injury. Her heirs sued Dr. DeBrot, claiming that he missed signs of her stroke and that this negligence then caused the fatal injury. A jury found Dr. DeBrot at fault and awarded damages to Castleberry's estate. On appeal, the court of appeals affirmed. Dr. DeBrot's petition for review was granted.

ISSUES: (1) Scope of petition for review; (2) causation instructions; (3) improper closing argument; (4) admission of expert testimony

HELD: In order to preserve an issue for review by the Kansas Supreme Court, the petition for review must list with specificity all issues that will be argued. A general statement about scope will not preserve issues for review. Expert testimony opined that Castleberry's stroke would not have happened had Dr. DeBrot met the standard of care. The court of appeals erred by finding that the causation instruction given was legally inappropriate, although harmless. In actuality, the instruction was both legally and factually appropriate. Castleberry's counsel exceeded the scope of permissible closing argument when he asked the jury whether it wanted "safe or unsafe medicine". But the error was harmless. Expert testimony was required to prove the standard of care, and the witnesses were allowed to explain the applicable standard.

CONCURRENCE (Beier, J., joined by Luckert and Johnson, JJ): The majority's decision is sound and none of the other issues raised before the court of appeals would have changed the outcome here. But Rule 8.03, as it exists now, did not prevent the Supreme Court from reviewing all issues raised by Dr. DeBrot in front of the court of appeals.

STATUTES: K.S.A. 2015 Supp. 60-456; K.S.A. 60-404, -456(b)


NO. 112,701—AUGUST 24, 2018

FACTS: Charla Biglow went to the emergency room suffering from a persistent cough and a fever. Charla complained about a rapid heartbeat, but Dr. Eidenberg attributed it to her having pneumonia and the breathing treatment she received. Charla was admitted to the hospital, where her complaints about her heart rate continued. Not long after admission, Charla died. Kevin, Charla's husband, brought suit against Dr. Eidenberg alleging that he violated the standard of care by not performing an EKG to check on Charla's rapid heartbeat. At trial, the expert testimony was divided as to whether Dr. Eidenberg met the standard of care. A jury found in favor of Dr. Eidenberg and the court of appeals affirmed. Kevin's petition for review was granted.

ISSUES: (1) Jury instructions; (2) motion in limine

HELD: The jury received a "physician's selection of course of treatment' instruction. This instruction was factually and legally appropriate. There is nothing to suggest that Dr. Eidenberg's failure to order an EKG was an unreasonable medical decision based on Charla's symptoms. Similarly, neither jury instruction defining negligence was clearly erroneous. The instruction which mentioned common experience was legally inappropriate, since establishing causation requires expert testimony. But the instruction was not clearly erroneous and any error was harmless. An order in limine prevented Kevin from using the words "safe" or "needless endanger a patient" during trial. Some review is precluded because Kevin never proffered what expert testimony was excluded by the order in limine. And substantively, the words covered by the order misstate the standard of care in Kansas and were properly excluded.

STATUTE: K.S.A. 2017 Supp. 60-251(c), -251(d)(2)


NO. 112,429—AUGUST 24, 2018 

FACTS: Joel Burnette sued Dr. Eubanks and her clinic alleging negligence in administering epidural steroid injections for back pain. Joel believed that the negligent manner of delivering the injections caused side effects which included nerve damage and significant pain. Four years after the injection, Joel committed suicide. Joel's parents filed a wrongful death case against the defendants on behalf of the estate and the lawsuits were consolidated by the district court. A jury found Dr. Eubanks liable for Joel's injuries and death. The verdict was affirmed by the court of appeals and the Burnettes' petition for review was granted.

ISSUES: (1) Causation instructions; (2) expert testimony; (3) damages

HELD: Taken as a whole, the jury instructions correctly supplied the cause-in-fact requirement for causation. The use of the phrase "contributed to" was not erroneous. Expert testimony proved but-for causation tying Dr. Eubanks' negligence to Joel's back pain and subsequent death. The $550,000 economic damages awarded by the jury to Joel's parents were improperly categorized as economic. The jury should not have been allowed to allocate damages for the harm of "loss of a complete family" and there was inadequate evidence to justify any additional economic award.

STATUTES: K.S.A. 2017 Supp. 60-250, -250(a); K.S.A. 60-1901, -19a02, -1903, -1903(e), -1904(a), 65-6319


NO. 115,932—AUGUST 24, 2018

FACTS: Kiowa County Memorial Hospital operates in Greensburg. The Hospital is managed by a Board of Trustees which is elected according to statute. The Board has statutory authority to levy a tax to operate and maintain the hospital. Great Plains is a non-profit corporation which is responsible for operating the hospital under the terms of a lease. Under the terms of the lease agreement, if Great Plains believes that additional revenue is necessary, it will inform the board of the need and the board will request that the county levy a tax. After three years of escalating levies, the county commission sought information about the hospital's budget and finances. The county commissioner sent a letter seeking, under the Kansas Open Records Act, certain budget documents. Great Plains refused the request, claiming that it was exempt from KORA. The state filed an action in district court seeking KORA enforcement and a fine for what it viewed as Great Plains' bad-faith refusal to comply. The district court granted the state's motion for summary judgment, ordered disclosure of the requested records, and imposed a $500 fine. The court of appeals affirmed the finding that Great Plains is subject to KORA but remanded the case for further findings about whether specific requested records were relevant to Great Plains' contractual performance. The Supreme Court granted both a petition and a cross-petition for review.

ISSUES: (1) Great Plains' status under KORA; (2) need for a remand

HELD: The Court finds for the first time on appeal that KORA explicitly covers instrumentalities of political and taxing subdivision and that Great Plains meets the definition of an instrumentality of county government. It is uncontroverted that the hospital is meant to be an arm of county government. As an instrumentality, Great Plains is a public agency and as such, is covered by KORA. The nature of the records sought by the state is irrelevant. As an agency covered by KORA, Great Plains has a duty to disclose. The court of appeals' order of remand is reversed.

STATUTES: K.S.A. 2016 Supp. 45-217(f)(1), -220(b), -221, -229(a), 75-4318(a); K.S.A. 2015 Supp. 45-217(f)(1), -217(f)(2), -217(g)(2); K.S.A. 19-4603, -4605, -4605(a), -4611, -4611(d), 60-404



criminal law—criminal procedure—evidence—sentences—statutes
state v. atkisson
anderson district court—reversed and remanded
court of appeals—reversed
No. 115,468—august 24, 2018

FACTS: Atkisson convicted of raping a child under 14 years old. Hard 25 life sentence imposed under Jessica’s Law. Atkisson appealed the denial of his motion under K.S.A. 2013 Supp. 21-6627(d) for a downward departure. In unpublished opinion, Court of Appeals vacated the sentence and remanded for resentencing in light of State v. Jolly,  301 Kan. 313 (2015). At resentencing, district court again denied the recommended departure and reimposed the hard 25 life sentence. Atkisson appealed, claiming district court abused its discretion by failing to apply Jolly, claiming the district court improperly weighed mitigating factors against aggravating factors, and relied on factual determinations - mostly from the probable cause affidavits - relating to uncharged conduct, dismissed counts, or otherwise unproven allegations. Court of Appeals affirmed in unpublished opinion. Atkisson’s petition for review granted.

ISSUES:  (1) Facts material to the departure determination, (2) source of facts relied on when determining departure

HELD: As decided in State v. Powell (decided this same date), district court can consider facts material to the substantial and compelling reason determination, and is not limited to focusing only of the facts surrounding the crime of conviction. Here, the district court did not abuse its discretion by considering immaterial subject matter in ruling on the departure motion. Facts referenced by the district court were relevant to the departure determination because they rebutted Atkisson’s mitigation claim based on his presentence investigation report that he had no significant criminal history.

District court’s determination to deny departure was an abuse of discretion because its reliance on these facts was unsupported by the evidence. Neither the probable cause affidavit nor the victim’s father’s statement were offered or admitted as evidence. Court of Appeals is reversed. Sentence is vacated, and case remanded to district court for reconsideration of the departure motion and resentencing.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J. and Johnson, J.): Concurs in the result and majority’s rationale, subject to the same limitation described in her concurrence in Powell.

STATUTES: K.S.A. 2013 Supp. 21-6627, -6627(d), -6627(a)(1), -6627(d)(1), -6801 et seq., -6804, 60-460( b); K.S.A. 20-3018(b), 60-418, -2101(b)


constitutional law—criminal law—fourth amendment
search and seizure
state v. boggess
butler district court—affirmed
court of appeals—affirmed
No. 111,361—august 24, 2018

FACTS: Motley allowed law enforcement officers to search car she was driving with Boggess as front-seat passenger. Among clutter on passenger floorboard, officer found and opened a small nondescript black zippered bag that held drug contraband. When it was discovered the bag belonged to Boggess, she was charged with drug offenses. She filed motion to suppress, claiming Motley had neither actual nor apparent authority to consent to a search of Boggess’ belongings. District court denied the motion finding Motley had apparent authority to consent to the search, and found Boggess guilty on all counts. Court of appeals affirmed in unpublished opinion. Boggess’ petition for review was granted.

ISSUE: Apparent authority to consent to search

HELD: Motley had apparent authority to consent to the search of the zippered bag. Under facts in case, when Motley gave her consent, it was objectively reasonable for officers to believe she had authority to consent to a search of the nondescript zippered bag. Cited facts included: (1) driver’s easy access to front passenger floorboard often used to store objects while driving, and Eleventh Circuit case (United States v. Barber, 777 F.3d 1303 [20105]) on similar facts; (2) Boggess was aware of the consent and that officers were going to search the vehicle but remained silent and did not claim ownership in any item in the vehicle; (3) nothing about the small zippered bag would signal to a reasonable person that Motley did not exercise common authority over it; and (4) the presence of clutter on the floorboards suggested the driver either placed the clutter there or sanctioned its presence in the vehicle.

DISSENT (Luckert, J.)(joined by Beier and Johnson, JJ.): Disagrees that officer’s reliance on Motley’s consent to search bags located at feet of passenger was objectively reasonable. Agrees that Motley had apparent authority to consent to a search, but once the zippered bag was found in passenger area, a person of reasonable caution would have questioned whether the driver had apparent authority to consent to a search of that bag. Disagrees with decision in Barber. Rejects majority’s dismissal of expectation of privacy in a small, zippered bag, as opposed to a purse. And under facts in this case, rejects majority’s reliance on Boggess’ silence. Would reverse judgments of Court of Appeals and district court, and remand for new trial.

STATUTE: K.S.A. 22-3216,-3216(3), 60-2101(b)


state v. powell
sedgwick district court—affirmed
court of appeals—reversed
No. 115,457—august 24, 2018

FACTS: Powell was convicted of aggravated indecent liberties with a child. District court imposed a hard 25 life sentence under Jessica’s Law, and denied Powell’s motion under K.S.A. 2017 Supp. 21-6627(d)(1) for a downward durational departure of 29.5 months. Powell appealed, claiming district court failed to follow the required analytical framework set forth in State v. Jolly, 301 Kan. 313 (2015), by failing to determine if mitigating circumstances existed, and by including aggravating circumstances and inappropriate facts of a stepchild’s testimony about Powell’s prior uncharged abuse. Divided court of appeals panel reversed and remanded for resentencing in compliance with Jolly because district court did not affirmatively declare that it reviewed Powell’s mitigating circumstances without weighing them against aggravating circumstances. 53 Kan.App.2d 758 (2017). Dissent argued the district court had complied with Jolly, and urged review to clarify how sentencing courts should conduct hearings on departure motions under Jessica’s Law. State’s petition for review was granted.

ISSUES: (1) Jessica’s Law departure motion, (2) abuse of district court’s discretion

HELD: The district court’s failure to perform Jolly steps on the record is not reversible error. District courts considering a Jessica’s Law departure motion need not affirmatively state they are not weighing aggravating and mitigating circumstances. Language in caselaw contrary to today’s holding is no longer sound.

On review, an appellate court should disregard characterizations of evidence that might reasonably bear on a defendant’s sentence for a first time Jessica’s Law conviction as “aggravating.” The question is whether the evidence relates to the decision to be made, i.e., whether the mitigating circumstances advanced both exist and supply a substantial and compelling reason to depart from the hard 25 life sentence. Here, Powell failed to show the district court abused its discretion by denying departure. District court’s consideration of the prior-sex-crime evidence in ruling on the departure motion was proper because:  (1) it was a “fact of the case” for the substantial and compelling reason determination required under K.S.A. 2017 Supp. 21-6627(d)(1), showing the convicted crime was not an isolated incident; (2) it was relevant to whether Powell proved his claimed mitigating circumstances; and (3) Powell failed to contemporaneously object to this evidence. Panel majority’s decision is reversed. Powell’s sentence is affirmed.

CONCURRENCE (Beier, J.)(joined by Nuss, C.J. and Johnson, J.): Agrees the district court’s judgment must be affirmed. No abuse of discretion in what district judge said—with or without majority’s criticism and clarification of Jolly. Writes separately to distance from overbroad and unnecessary statements that how a district judge labels or characterizes evidence or the fact it has been admitted to prove is of no moment.

STATUTES:  K.S.A. 2017 Supp. 21-5506(b)(3)(A), -6627, -6627(a)(1), -6627(d), -6627(d)(1), -6804, 22-3608(c), 60-455(d); K.S.A. 20-3018(b), 21-4643, 60-404, -2101(b)


Kansas Court of Appeals



NO. 117,128—AUGUST 24, 2018

FACTS: An employee received workers compensation benefits for years of repetitive use injuries. The claims spanned two employers and several insurance companies. OneBeacon American Insurance Company paid approximately $152,000 to the employee after March 1, 2005. After an appeal, the award was remanded back to the Workers Compensation Board of Appeals for further factual findings. The board awarded a maximum disability benefit of $200,000, total, for two different injuries but did not address which insurance company was responsible for paying which injury. OneBeacon informed Karns, the Director of Workers Compensation, that it was not responsible for covering any preliminary medical benefits. OneBeacon identified the Workers Compensation Fund as the likely source for reimbursement, a position echoed by Travelers. The Fund believed that Travelers was the source of repayment to OneBeacon. Karns considered the parties' submissions and then issued an order which included findings of fact and conclusions of law. The order directed Travelers to reimburse OneBeacon. Travelers filed a petition for review with the district court, which ruled that Travelers had no statutory remedy in district court. Travelers appealed.

ISSUES: (1) Statutory remedy; (2) district court decision

HELD: The Workers Compensation Act addresses a situation where a party believes it has paid benefits that should have been paid by another entity. K.S.A. 2017 Supp. 44-556(e) requires a decision maker to identify the amount and the entity responsible for repayment. After that decision is made, the director certifies that amount for reimbursement. ALJs, the board, and the appellate courts must make the substantive decisions. That didn't happen here, and Karns exceeded his authority by making findings of fact and conclusions of law. That order is reversed, and this matter is remanded to the board for further proceedings and a decision on reimbursement. Karns' reimbursement order was essentially an agency action which could be challenged in district court. The order also exceeded Karns' authority and was challengeable on those grounds.

STATUTES: K.S.A. 2017 Supp. 44-534a(b), -551(p), -556(a), -556(d), -556(e), 77-529(a), -603(a), -603(c), -621, -621(c); K.S.A. 77-602(b)(1), -622(b)


NO. 117,499—AUGUST 24, 2018

FACTS: John and Joyce Moore owned land in trust as an estate plan for all four of their children. One son, Steven, convinced John to sell their homestead to Steven's son. Months later, Steven got Joyce to sell land to her grandson. The real estate was sold for much less than market value and left the trust mostly stripped of assets. Joyce, on behalf of the trust, sued Steven and his son seeking to have the purchase contracts set aside. Joyce claimed that both she and John lacked the capacity to sell the homestead and farmland under contract. In addition, she claimed that the contracts should be set aside because of Steven's undue influence over his parents. A jury found in Steven's favor and Joyce appeals.

ISSUES: (1) Jury instructions on undue influence; (2) improper jury argument

HELD: Contracts between parties in a fiduciary relationship are due close scrutiny. In this case, Steven held a position of confidence with his parents. Because of that fact, the district court failed to instruct the jury on the appropriate burden of proof on an undue influence claim. The evidence shows that the case was a close one, meaning that the absence of an instruction on how to allocate the burden of proof was not a harmless error. This is true even if the contracts are viewed as testamentary documents, as a rational factfinder could have found the existence of suspicious circumstances. The claim of an inappropriate comment during closing argument is difficult to address because it was handled by an off-the-record bench conference. Because so much is unknown, the appellate court can't find an abuse of discretion.

STATUTE: K.S.A. 2017 Supp. 60-460(a)



criminal law—probation—sentences—statutes
state v. baker
johnson district court—reversed and vacated
No. 118,338—august 24, 2018

FACTS: In case at issue, Baker convicted of two counts of forgery and one count of theft. Sentencing court ordered prison terms for each charge, with a 24 month probation period. Journal entry more fully detailed 18 months of probation for each forgery conviction, and 24 months’ probation for the theft. Over 18 months later, district court revoked probation and ordered her to serve the three aggregated prison terms. Baker objected, arguing she completed her 18-month probation, and thus her sentences on the forgery convictions, well before the State took action to revoke her probation. District court disagreed, reasoning a unitary probation period of 24 months applied to the case. Baker appealed.

ISSUE: Sentencing - probation in multiple cases

HELD:  District court’s pronouncement was technically incomplete and should have included a probation period for each of the three convictions. Pertinent sentencing statutes are reviewed, finding K.S.A. 2017 Supp. 21-6819(b)(8) is susceptible to two conflicting readings. Concept of in pari materia interpretation underscores the reasonableness of applying rule of lenity to Baker’s advantage. When the district court revoked Baker’s probation and ordered her to prison, she had already completed her probation and satisfied the sentence on each of the forgery convictions. Only service of the sentence on the theft conviction could be required. District court’s revocation of Baker’s probations on the forgery convictions are reversed, and the resulting sentences of imprisonment for those convictions are vacated.

STATUTES: K.S.A. 2017 Supp. 21-6603(g), -6604(a)(3), -6608, -6608(c)(1)(B), -6608(c)(3), -6608(c)(4), -6608(c)(5), -6819, -6819(b)(8); K.S.A. 22-3202(a)


criminal law—criminal procedure—prosecutors—statutes
state v. lacy
sedgwick district court—reversed and remanded
No. 117,884—august 24, 2018

FACTS: K.S.A. 2015 Supp. 21-5506(b)(2) and (b)(3) sets forth two forms of indecent liberties with a child - with the required criminal intent the offender either touches the victim or solicits the victim to touch another person. Prosecutor charged Lacy with the solicitation form of  aggravated indecent liberties, but trial evidence and jury instructions involved only the touching form of that aggravated offense. Lacy appealed, claiming insufficient evidence supported his conviction on the charged offense.

ISSUE: Sufficiency of the evidence

HELD: State charged Lacy with the wrong crime, never asked for the charge to be amended, and obtained a conviction for the wrong charge. Facts in case supported only the touching form of aggravated indecent liberties, and jury was instructed about that form rather than the charged offense Because the evidence did not support the elements of the crime charged and convicted, and there were no potential lesser-included offenses at issue, Lacy’s conviction must be reversed. As a teaching tool, Court identifies points when prosecutors and district court might have recognized and corrected the error in this case. District court’s judgment is reversed, and Lacy’s sentence is vacated.

STATUTES:  K.S.A. 2015 Supp. 21-5506(a), -5506(b), -5506(b)(2), -5506(b)(3), -5506(b)(3)(B); K.S.A. 22-3201(e)

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August 17, 2018 Digests

Posted By Administration, Tuesday, August 21, 2018

Kansas Supreme Court


criminal procedure—statutes—witnesses
state v. brosseit
franklin district court—affirmed
court of appeals—affirmed
No. 114,753—august 17, 2018

FACTS: Brosseit was convicted of DUI. At trial, State sought endorsement of a person not identified in the complaint as a potential witness—the EMS paramedic (Harris) who drew Brosseit’s blood sample. District court allowed the late endorsement. Brosseit appealed, claiming in part that K.S.A. 22-3201(g) requires the State to endorse all known witnesses when it files the complaint, and only permits endorsement after that time if the State was unaware of the witness when it filed the complaint. State argued this claim was not preserved in district court. Court of appeals affirmed in unpublished opinion without addressing preservation. Review granted on this claim and argument that K.S.A. 22-3201(g) had been wrongly interpreted.

ISSUES: (1) Preservation of issue for appellate review, (2) late endorsement of a witness

HELD:  As in State v. Gray, 306 Kan. 1287 (2017), State failed to cross-petition for review of Court of Appeals conclusion or lack thereof regarding preservation. Nor did the State submit a response to the petition for review. The preservation issue thus is not before the Kansas Supreme Court.

In light of ambiguity in the statute and the legislature’s more than century-long acquiescence, the doctrine of stare decisis is followed. Kansas Supreme Court cases interpreting K.S.A. 22-3201(g) and its predecessors are upheld. To show reversible error on appeal, the defendant must have objected to the late endorsement, requested a continuance, and been denied that continuance. In this case, Brosseit did not request a continuance. Court of appeals is affirmed.

CONCURRENCE (Rosen, J., joined by Johnson and Stegall, JJ.): Concurs in the result only. Does not agree with majority’s interpretation of K.S.A. 22-3201(g). On plain language of the statute, the long-standing interpretation of K.S.A. 22-3201(g) is incorrect. Would hold that if the State wishes to endorse a witness after it has filed its complaint, then the State has a duty to show that it was unaware of the witness at the time of filing. The district court erred in allowing State to endorse Harris on the day of trial, but under facts in the case the error was harmless.

STATUTE: K.S.A. 2013 Supp. 8-1567(a)(1), -1567(a)(2), -1567(a)(3); K.S.A. 22-3201(g)

appeals—criminal procedure—criminal law—evidence—statutes
state v. campbell
sedgwick district court—affirmed
no. 116,430—august 17, 2018

FACTS: Jury convicted Campbell of first-degree premeditated murder of his wife. On appeal, Campbell first claimed the State improperly rehabilitated a jailhouse informant by introducing testimony of former prosecutor (Morehead) regarding past instances when the informant was credible, but State contends defense counsel failed to preserve this argument with an appropriate objection. Second; he claimed district court erred by admitting testimony of a witness who described Campbell as controlling of his wife. Campbell contends this evidence was inadmissible under K.S.A. 2017 Supp. 60-455 because it did not constitute evidence of a “crime or civil wrong,” but State counters this evidence of marital discord was properly admitted through K.S.A. 60-455. Third; he claimed the jury should have been instructed on a heat-of-passion voluntary manslaughter based on Campbell’s sudden quarrel with his wife. And fourth; he claimed cumulative error denied him a fair trial.

ISSUES: (1) Appellate review of Witness Rehabilitation claim, (2) evidence of marital discord, (3) voluntary manslaughter jury instruction, (4) cumulative error

HELD: Campbell objected to Morehead’s testimony on grounds of hearsay and of bolstering or vouching for the informant’s credibility. He now asserts for first time on appeal the more salient objection that Morehead’s proposed testimony would violate the specific instances rule. This newly asserted challenge on appeal is not considered.

District court properly admitted testimony describing Campbell as controlling of his wife. Prior caselaw on marital discord evidence is reviewed, with modification to the holding in State v. Gunby, 282 Kan.39 (2006). Evidence of discord in a marital relationship that does not amount to a crime or civil wrong is not subject to the limitations of K.S.A. 2017 Supp. 60-455. Under facts in this case, the evidence of discord was not subject to K.S.A. 2017 Supp. 60-455. District court’s admission of this evidence is affirmed.

An instruction for heat-of-passion voluntary manslaughter, which would have been legally appropriate, was not factually appropriate in this case.

Cumulative error doctrine not applicable where no error has been found.  

DISSENT (Johnson, J.): Disagrees that the defense objection to Morehead testifying was not preserved for appeal. District court’s error in allowing the testimony was not the result of a misunderstanding as to the reasons the defense objected to the testimony. Would address the issue, find in favor of the defendant, reverse the conviction, and remand for a new trial.

STATUTES: K.S.A. 2017 Supp. 21-5404, 22-3601(b)(3), 60-455; K.S.A. 60-404, -422, -455


criminal procedure—probation—sentencing
state v. horton
leavenworth district court—affirmed
court of appeals—affirmed
no. 115,051—august 17, 2018 

FACTS: Horton was convicted of residential burglary and felony theft. At a November 1998 sentencing, probation was ordered with understanding that the first part of probation would be served in jail because Horton had other charges pending. District court granted State’s December 1998 motion to revoke probation based on Horton’s failure to report. In 2015, Horton filed a pro se K.S.A. 22-3504 motion to correct an illegal sentence, arguing the district court erred in revoking probation because it was impossible for Horton to report as required when he was incarcerated for other offenses. District court summarily dismissed the motion. Horton appealed. Court of appeals affirmed in unpublished opinion. Horton’s petition for review granted.

ISSUE: Motion to correct an illegal sentence - probation revocation

HELD: The two-step probation revocation process is analogous to the conviction and sentencing process. A probation violator cannot use K.S.A. 22-3504 to collaterally attack the district court’s guilty determination at a probation violation hearing. A revoked probationer must directly attack the factual determination that a probation violation occurred. District court’s summary dismissal of Horton’s claim is affirmed.

STATUTE: K.S.A. 22-3504, -3504(1), -3716, -3716(b)


appeals—criminal procedure—evidence—judges
state v. smith
sedgwick district court—reversed and remanded
no. 116,968—august 17, 2018

FACTS: Smith convicted in 1993 of first-degree felony murder, aggravated kidnapping, aggravated robbery, and possession of a firearm by a minor. Twenty years later, he filed a pro se motion to file a direct appeal out of time, claiming his defense counsel never acted on Smith’s request to file an appeal. Kansas Supreme Court remanded to district court for an Ortiz  hearing to determine if Smith was eligible to appeal out of time. District court denied the motion, making no findings but referencing Smith’s failure to do anything for all the years. Holding the length of time is a factor but not a threshold bar, Kansas Supreme Court remanded to district court to determine credibility of Smith’s testimony that he repeatedly tried throughout 1993 and 1994 to tell his attorney to file an appeal. State v. Smith, 304 Kan. 916 (2016). Second Ortiz hearing held before a different judge who denied the motion to appeal out of time, finding Smith’s testimony was not credible. Smith appealed, arguing the district court arbitrarily disregarded undisputed testimony that he told his trial counsel he wanted to appeal.

ISSUE: Appearance of judicial bias and prejudice

HELD: Court reviews the district court’s stated reasons for denying the motion and notes the failure to consider the potentially corroborating testimony of Smith’s grandmother. In two stated reasons—Smith’s taste in music and Smith’s tattoos/brands—the district court improperly considered information irrelevant to the credibility determination and applied a negative stereotype. Also, district court inappropriately conducted independent factual research through a post-hearing sua sponte request to department of corrections for Smith’s tattoo/brand information, and failed to provide parties reasonable opportunity to respond before denying Smith’s motion. Reversed and remanded for a new Ortiz hearing before a different judge to consider only evidence in the record that is relevant to Smith’s credibility.

STATUTES: K.S.A. 2017 Supp. 22-3601; K.S.A. 1993 Supp. 21-4701 et seq.; K.S.A. 60-401(b), 409, -409(b)(4), -410, -410(a), -412(d)

Kansas Court of Appeals



NO. 118,334—AUGUST 17, 2018

FACTS: Nationwide Learning, Inc. created kits for teachers and students that allowed for publication of books which contained student-created content. At the time it was incorporated, Nationwide borrowed almost $5 million from C3 Capital Partners. As the business evolved, Wells Fargo obtained lease agreements on three printers. C3 ultimately foreclosed on Nationwide's assets and conveyed them to Studentreasures. Wells Fargo repossessed its collateral and sold the printers. It then sued Nationwide, which was defunct, for breaching the printer lease agreement. Wells Fargo also sued Studentreasures for both actual and punitive damages on theories of successor liability and violation of the Kansas Uniform Fraudulent Transfer Act. The district court awarded Wells Fargo in excess of $490,000 in damages and attorney fees but denied all other claims. Wells Fargo appealed.

ISSUES: (1) Successor liability; (2) application of fraudulent avoidance of debt exception; (3) liability under KUFTA; (4) punitive damages

HELD: Kansas generally recognizes the general rule of successor nonliability, with four exceptions. Successor liability is applied sparingly and must only be used when required by equity. In this case, the district court made errors of law when evaluating certain tests. Because Studentreasures is a mere continuation of Nationwide, the imposition of successor liability is warranted. To apply the fraudulent avoidance of debt exception to successor liability, Wells Fargo must prove, by clear and convincing evidence, actual fraud. That proof did not exist in this case. Because no assets were transferred, the KUFTA cannot apply. In the absence of willful or wanton conduct, the district court correctly denied the motion for punitive damages.

STATUTES: K.S.A. 2017 Supp. 84-1-103(b), 84-9-617; K.S.A. 33-201(1), -201(b)(1), -201(h), -203(b), -204(a)(1), -204(b), 60-3702(c)

Tags:  8/17/2018  Franklin District  Leavenworth District  Sedgwick District  Wyandotte District 

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August 10, 2018 Digests

Posted By Patti Van Slyke, Monday, August 13, 2018

Kansas Supreme Court 



NO. 115,531—AUGUST 10, 2018

FACTS: Manley died in a car accident which occurred at the intersection of two gravel roads. Neither road had a traffic sign. A law enforcement investigation concluded that vegetation on one of the corners likely created a blind spot, making it impossible for either driver to see approaching traffic. The Hallbauers owned the property with the trees, which had been there since before they purchased the lot. Manley's estate's wrongful death suit included the Hallbauers as defendants. The Hallbauers moved for summary judgment, claiming they could not be held liable for failing to remove trees or other vegetation. The district court granted that motion and Manley's estate appealed. The Court of Appeals turned to the Restatement of Torts (Second) in concluding that the Hallbauers had no duty to clear vegetation from their lot. The estate's petition for review was granted.

ISSUE: (1) Existence of duty

HELD: Kansas law reflects a public policy not to impose tort liability on a landowner for natural obstructions on the landowner's property. Because it is not necessary to do so, the court takes no position at this time on whether the Restatement (Third) should be used in Kansas. There is no justification to depart from the established rule that a landowner owes no duty in a case such as this. It is especially true when, as was the case here, the landscape was rural.

STATUTES: No statutes cited




criminal lawcriminal procedureprobationstatutes
state v. dooley
mcpherson district court—reversed and remanded
court of appeals—reversed
No. 111,554—august 10, 2018

FACTS:  Finding Dooley admitted to drug usage, failed to report to Oxford House, failed to report to Dodge City Community Corrections and absconded, district court revoked Dooley’s probation and ordered him to serve underlying prison term. Dooley appealed, claiming district court failed to base its decision on a statutory exception that would have authorized bypassing the intermediate probation violation sanctions mandated by K.S.A. 2013 Supp. 22-3716 before completely revoking probation. Court of Appeals affirmed in unpublished opinion, noting the district court accepted Dooley’s stipulation that he had absconded, and journal entry stated revocation was based in part on that basis.  Review granted.    

ISSUE:  Revocation of probation

HELD:  Changes in the dispositional alternatives for a probation violation after the 2013 amendments to K.S.A. 22-3716 are discussed. Court rejects State’s argument, raised for first time on appeal, that the 2013 amendments are not applicable in this case. Under the 2013 amendments, Dooley had received a first-step intermediate sanction so the next graduated intermediate sanction should have been a prison sanction of 120 or 180 days unless a statutory bypass exception existed. To invoke the bypass exception under K.S.A. 2013 Supp. 22-3716(c)(8), State must show and district court must find that the probation violator engaged in some course of action (or inaction) with the conscious intent to hide from or otherwise evade the legal process. Here, the revocation hearing transcript does not confirm the district court made a specific finding that Dooley absconded, and the journal entry was ambiguous on this point. The meaning of “absconds from supervision” is adopted, citing Oregon Supreme Court’s efforts as persuasive. District court’s ruling that Dooley violated the terms of his probation is affirmed. The revocation of probation and imposition of the underlying sentence is reversed and remanded for district court to either impose an intermediate sanction under K.S.A. 2013 Supp. 22-3716(c)(1)(C) or (D), or to invoke the bypass provision of K.S.A. 2013 Supp. 22-3716(c)(8) based on a finding, supported by substantial competent evidence, that Dooley absconded from supervision.  

STATUTE:  K.S.A. 2013 Supp. 22-3716, -3716)b), -3716(b)(4), -3716(c)1), -3716(c)(1)(B)-(E), -3716(c)(8), -3716(c)(9)


NO. 115,277—AUGUST 10, 2018

FACTS: Fisher was charged with DUI. Because he had two prior municipal convictions for DUI, the State charged him with a felony. One of the prior convictions was obtained under a Wichita municipal ordinance. Fisher's counsel filed a motion to dismiss, arguing that the prior conviction could not be used because the ordinance is broader than the state statute. The motion was denied and Fisher was convicted. The Court of Appeals reversed the conviction, finding that the sentencing court should have used the categorical approach in analyzing the similarity of the statutes. The State's petition for review was granted.

ISSUE: (1) Ability to use municipal conviction to establish a felony

HELD: The Court of Appeals is affirmed under the rationale applied this day in State v.  Gensler.

DISSENT: (Stegall, J.) He dissents for the reasons established in State v. Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1567, -1567(i)(1); K.S.A.  8-1485


appeals—criminal law—criminal procedure—statutes
state v. fitzgerald
cowley district court—reversed; court of appeals—affirmed
No. 112,492—august 10, 2018

FACTS:  Fitzgerald was convicted of aggravated criminal sodomy of a child. On appeal he claimed that insufficient evidence supported the charged offense under K.S.A. 2017 Supp. 21-5504(b)(2) of causing the victim to engage in sodomy ”with another person.” Relying on State v. Labore, 303 Kan. 1 (2015), and State v. Dickson, 275 Kan. 683 (2003), Court of Appeals reversed in unpublished opinion, finding State proved aggravated sodomy of the victim by the defendant [K.S.A. 2017 Supp. 21-5504(b)(1)], but failed to present evidence of the charged offense which was causing the victim to engage in sodomy with someone else. State’s petition for review granted. Parties were asked to supplement briefs to address State v. Dunn, 304 Kan. 773 (2016), which reformed the analysis on charging document error.

ISSUES:  Sufficient evidence of the crime charged

HELD:  Charging document in this case does not suffer from any of the infirmities identified in Dunn. As in Labore, the issue is the evidence supporting the verdict on the crime charged. No overruling of holding in Dickson that “any person” in identically worded predecessor statute to K.S.A. 2017 Supp. 21-5504(b)(2) means “a person other than the defendant.” State charged Fitzgerald under subsection (b)(2), but proved aggravated criminal sodomy under subsection (b)(1). State presented insufficient evidence of the charged offense. Fitzgerald’s conviction is reversed. 

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

CONCURRENCE (Lukart, J., joined by Nuss, C.J. and Rosen, J.):  Explains reasons for not departing from Dickson, relying on rules of statutory interpretation and rules of statutory construction of the ambiguity in K.S.A. 2017 21-5504(b).

DISSENT (Stegall, J.):  Would overrule Dickson, and criticizes the statutory interpretation in that case. Instead, argues the use of “any person” in K.S.A. 2017 Supp. 21-5504(b)(2) includes rather than excludes Fitzgerald, thus sufficient evidence supports his conviction. 

STATUTES:  K.S.A. 2017 Supp. 21-5504(b), -5504(b)(1), -5504(b)(2); K.S.A. 22-3301(a), -3301(b)


Appeals—constitutional law—criminal procedure—statutes
state v. fleming
johnson district court—affirmed; court of appeals—affirmed
No. 125,449—august 10, 2018

FACTS:  Jury found Fleming guilty of aggravated robbery and aggravated burglary, but not guilty of theft of a television, PlayStation, laptop computer, and watches. Fleming appealed, claiming in part error in the aggravated robbery jury instruction which referred to the taking of “property” without specifying the stolen property alleged in the complaint—a cell phone and wallet. In unpublished opinion, Court of Appeals held that Fleming had not preserved that issue because he invited the error by proposing the instruction. Review granted.

ISSUE:  Invited error 

HELD:  Invited error precludes review of Fleming’s alleged instruction error. Invited-error doctrine is reviewed, and parties in future cases are urged to more deeply explore whether Kansas cases follow or should follow concepts of estoppel or waiver because application of the doctrine may vary depending on which doctrinal route applies. Clear-error test imposed by K.S.A. 22-3414(3) does not preclude application of the invited-error doctrine to claimed errors in a jury instruction. Pretrial requests may invite error and did so here, where the language difference between the complaint and the proposed instruction was as obvious before trial as after. Mere fact that Fleming raises constitutional issues regarding the instruction’s deviation from the charging document does not prevent application of the invited-error doctrine. There is no bright-line rule for application of the invited-error doctrine. An appellant’s actions in causing an alleged error and the context in which those actions occurred must be carefully reviewed in deciding whether to apply the doctrine. Such analysis is appropriate in this and future cases to ensure application of the doctrine is limited to cases in which the complaining party truly invites error. 

STATUTE:  K.S.A. 22-3414(3), 60-404, -1507


NO. 112,523—AUGUST 10, 2018

FACTS: Gensler had two prior DUI convictions when he was charged with a third DUI. The prior convictions were obtained under a Wichita municipal ordinance. Prior to trial, Gensler objected to the inclusion of the municipal convictions because, he claimed, the ordinance in effect at the time of his conviction prohibited a broader range of conduct than the state DUI statute. Gensler's objection was overruled, and he was convicted after a bench trial on stipulated facts. Gensler also objected to the two prior convictions being used to enhance his criminal history score. The objection was overruled. The Court of Appeals found that Gensler was appropriately convicted because the documents from his prior convictions showed that he was cited for operating a motor vehicle while under the influence. Gensler's petition for review was granted.

ISSUE: (1) Classification of prior convictions

HELD: The state DUI statute is ambiguous in what  t allows to count as a prior conviction. Under the version of the statute as it existed at the time of Gensler's conviction, the municipal ordinance could not criminalize a broader range of acts than are criminalized under the state DUI statute. The Wichita ordinance defined "vehicle" much more broadly than the state statute, in a way that cannot be treated as alternative elements. Because the elements of the ordinance are not the same as or narrower than the statute, Gensler's prior convictions should not have been used in this DUI prosecution.

DISSENT: (Stegall, J.) K.S.A. 2017 Supp. 8-1567(i)(1) is not ambiguous. The Legislature clearly intended to allow consideration of a prior conviction which arose from an ordinance such as the one in place in Wichita.

STATUTES: K.S.A. 2017 Supp. 8-1485, -1567, -1567(a), -1567(i)(1); K.S.A. 8-1485, -1567(j)


capital sentences—constitutional law
criminal procedure—juries—statutes
state v. lloyd
sedgwick district court—affirmed
No. 115,834—august 10, 2018

FACTS:  Lloyd was convicted of first-degree premeditated murder, felony murder, and abuse of an infant victim. Hard 50 sentence imposed without a jury. Convictions affirmed on direct appeal, but remand ordered for resentencing in compliance with Alleyne v. United States, 570 U.S. 99 (2013). State v. Lloyd, 299 Kan. 620 (2014). At resentencing, same evidence presented but in part through prior testimony of a key witness (Loudermilk) who was unavailable for the resentencing proceeding. Hard 50 sentence again imposed, based on jury’s finding that Lloyd’s 2007 guilty plea to aggravated assault for shooting Loudermilk in the foot was a prior  felony resulting in great bodily harm, and that Lloyd committed the instant crime in an especially heinous, atrocious, or cruel manner. Lloyd appealed, claiming district court erred by allowing Loudermilk’s coerced pretrial statements and testimony from the first trial. Lloyd also claimed the State presented insufficient evidence that he had a prior felony conviction for a crime in which he inflicted great bodily harm because the crime of aggravated assault contains no such essential legal element. 

ISSUES:  (1) Coerced testimony, (2) sufficient evidence of prior conviction as aggravating factor

HELD:  United States Supreme Court case has not addressed whether testimony of a coerced witness may be used against a defendant at trial, but Kansas Supreme Court has held that basing a conviction in whole or in part on the coerced statement of a witness may deprive a criminal defendant of due process. State v. Daniels, 278 Kan. 53 (2004). Assuming without deciding the admission of Loudermilk’s transcribed testimony was erroneous, any such error was harmless under facts in this case. 

            Nothing in K.S.A. 2017 Supp. 21-6624(a) requires that bodily harm be an element of the felony serving as an aggravating factor. Jury had sufficient evidence to enable it to reach the reasonable conclusion that Lloyd committed a felony that inflicted great bodily harm or disfigurement on Loudermilk. 

STATUTE:  K.S.A. 2017 Supp. 21-6620(e) -6620(e)(3), 6624(A), -6624(f)


NO. 115,278—AUGUST 10, 2018

FACTS: Mears was charged with DUI. Because he had two prior municipal convictions for DUI, the State charged him with a felony. One of the prior convictions was obtained under a Wichita municipal ordinance. Mears' counsel  filed a motion to dismiss, arguing that a Wichita municipal conviction could not serve as the basis for a felony DUI conviction. The motion was denied and Fisher was convicted. The Court of Appeals reversed the conviction, finding that the sentencing court should have used the categorical approach in analyzing the similarity of the statutes. The State's petition for review was granted.

ISSUE: (1) Ability to use municipal conviction to establish a felony

HELD: The Court of Appeals is affirmed under the rationale applied this day in State v.  Gensler.

DISSENT: (Stegall, J.) He dissents for the reasons established in State v. Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1567, -1567(i)(1); K.S.A. 2016 Supp. 8-1567(b); K.S.A.  8-1485


NO. 115,196—AUGUST 10, 2018

FACTS: Schrader was charged with five counts including involuntary manslaughter while driving under the influence. After entering a no contest plea, Schrader objected to the inclusion in his criminal history score of a prior felony under a Wichita municipal DUI ordinance. The court overruled the objection and Schrader's sentence included the disputed municipal conviction. On appeal, the Court of Appeals agreed that the municipal ordinance's breadth precluded its use as a person felony in Schrader's criminal history. The State's petition for review was granted.

ISSUES: (1) Use of prior conviction in criminal history

HELD: Prior municipal convictions may be used to enhance sentencing only if the ordinances are the same as, or narrower than, the state DUI statutes. The comparison of the ordinance and the statutes is driven by their elements. The Wichita ordinance under examination here defines "vehicle" more broadly than the state statute. Because this results in the ordinance criminalizing more behavior than the statute, Schrader's prior conviction under that ordinance cannot be used to enhance his sentence here.

DISSENT: (Stegall, J.) He dissents for the reasons established in State v. Gensler.

STATUTES: K.S.A. 2017 Supp. 8-1485, -1567, -1567(a), -1567(i)(1); K.S.A.  2014 Supp. 21-5405(a)(3), -6811(c)(2)

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