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October 11, 2019 Digests

Posted By Administration, Tuesday, October 15, 2019

Kansas Supreme Court


NO. 116,883—OCTOBER 11, 2019

FACTS: Agents from C-U-Out Bail Bonds came to the Williamses' home in search of the Williamses' daughter-in-law. Mrs. Williams told the agents that the woman they sought was not in her home. It was late at night, Williams was caring for her elderly and ill mother, and she denied the agents' request to enter the home. The agents attempted to enter the home by force, and Williams called the police. After the police arrived, agents forced their way into the home. The police officers on scene stood and watched and refused to assist Williams. The Williamses sued both C-U-Out and also the City of Overland Park, claiming the officers committed the tort of "negligent failure to protect." The district court granted the City's motion to dismiss, finding that the City was immune from liability under the Kansas Tort Claims Act and also finding that the City owed no duty to the Williamses. The Court of Appeals agreed that the City owed no duty to the Williamses. The panel also held that the City was immune under the discretionary function exception. The Kansas Supreme Court granted review.

ISSUES: (1) Sufficiency of facts to support illegal conduct, (2) existence of a duty, (3) discretionary function immunity

HELD:  The issue of whether C-U-Out's agents acted lawfully was, in part, a factual question. The Court of Appeals erred by disregarding factual allegations made in the Williamses' petition. Generally, law enforcement owes a duty only to the public at large. To succeed here, the Williamses had to prove that the City owed them a duty because of a special relationship or a specific circumstance. Although the existence of a duty is a question of law, where a duty is predicated on an affirmative act, there is a threshold factual question of whether the defendant's behavior could have triggered a duty. The district court erred by granting the motion to dismiss because of a lack of duty. The question of whether discretionary function immunity exists is high contextual. The district court erred by granting a motion to dismiss on these grounds.

STATUTES: K.S.A. 2018 Supp. 60-212(b)(6), 75-6104, -6104(e); K.S.A. 22-2809


Kansas Court of Appeals


NO. 120,241—OCTOBER 11, 2019

FACTS: King was injured after he slipped on some ice in a Casey's parking lot. He filed suit and the parties attempted to settle; when that was unsuccessful, the case proceeded to trial. During voir dire, panel member J.W. was asked whether he had any personal knowledge that would cause a problem for him if he was seated on the jury. J.W. said that he knew one of the witnesses—a Casey's employee—but said that wouldn't make him unable to be impartial when deciding the case. Another potential juror, R.W., was removed from the jury panel via peremptory strike because he knew King's family. The day after voir dire concluded, R.W. contacted King's attorney to tell her that one of the potential jurors told the panel that Casey's had offered to settle and that King should have accepted the offer. Further questioning revealed that the juror who brought up the settlement was J.W. King moved for a mistrial based on juror misconduct. After J.W. was questioned, the district court denied the motion but it did remove J.W. from the jury panel. The jury continued with 11 members and ultimately returned a verdict finding no fault by either party. King moved for a new trial based on juror misconduct, which was denied. King appealed.

ISSUE: (1) Whether J.W. tainted the jury

HELD: In most civil cases, a person asserting juror misconduct has the burden to prove that the misconduct occurred and that prejudice resulted. In this case, there was a factual dispute regarding how much J.W. knew about settlement proceedings and how extensively he shared that knowledge with other jurors. J.W.'s failure to volunteer information did not amount to prejudicial misconduct.

STATUTE: K.S.A. 2018 Supp. 60-259(a)


NO. 119,147—OCTOBER 11, 2019

FACTS: Morgan's son, Robert Cook, had "chronic, severe" paranoid schizophrenia and diabetes. His schizophrenia made him forgetful, which meant he had trouble remembering to take his medication. His doctors prescribed twice-daily home healthcare visits. Cook's health aides were supposed to evaluate his status, set up medications and remind Cook to take his pills, monitor his blood sugar, and draw labs as needed. Beginning in May of 2013, nurses noted that Cook's apartment was very warm. Some of Cook's medications made him unable to tolerate heat. The nurses counseled Cook on the temperature in his apartment and on his personal hygiene. Cook was unable or unwilling to follow their requests, and he continued to live in his apartment with no temperature control, resulting in him sweating and being warm. Medical logs noted that Cook's pulse was very rapid. In June 2013, Cook died of hyperthermia. Morgan brought a wrongful death and survival action against Healing Hands, claiming its negligence caused Cook's death. Healing Hands sought and received partial summary judgment on two issues: that it legally had no duty to alert Morgan to Cook's condition, and that Kansas' mandatory reporter statute did not require Healing Hands or its employees to report Cook's condition to law enforcement or state authorities. The remaining issues were tried to a jury, which found in Healing Hands's favor. Morgan appeals.

ISSUES: (1) Duty to warn and mandated reporter, (2) disputed issues of material fact, (3) jury instructions

HELD: The district court read the mandatory reporter statute too broadly. The statute did not require that Cook had previously been adjudicated incompetent or appointed a guardian or conservator before its obligations were triggered. There were fact questions on this issue that should have been heard by a jury. Evidence showed that while Cook lived independently, he required twice-daily nursing care to manage his physical and mental health. The mandatory reporter statutes created a duty of care, and the violation of these statutes may be used to establish a breach of that duty. The district court did not err when instructing the jury.

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

STATUTE: K.S.A. 39-1430(a), -1430(g), -1431, -1431(a), -1431(e), -1432(b)

Tags:  Author: Patti Van Slyke  duty  immunity  Johnson District Court  jury misconduct  law enforcement  negligence  Rice District Court  Sedgwick District Court 

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March 29, 2019 Digests

Posted By Administrator, Monday, April 1, 2019

Kansas Supreme Court


NO. 113,563—MARCH 29, 2019

FACTS: Peters supervised a cattle feedlot. He started the job in 2006, working for Hitch Enterprises as an employee-at-will. Hitch sold the business to Deseret Cattle Feeders in 2010. When the sale was announced, employees were told that there would be no layoffs and that employees would be retained by Deseret as long as they did their jobs. This message was reinforced by Deseret after it took control of the operation. Peters continued to work in his existing position. He signed several contracts with Deseret but none that specified that he was working as an employee-at-will. Peters was terminated in 2011 because of a reduction in Deseret's workforce—there was no evidence of misconduct or poor job performance. Peters filed suit claiming breach of an employment contract. The district court granted Deseret's motion for summary judgment, finding there was no evidence of an implied-in-fact employment contract. The court of appeals reversed, finding that disputed facts precluded summary judgment. The Supreme Court granted Deseret's petition for review.

ISSUES: (1) Existence of implied-in-fact employment contract; (2) promissory estoppel claim

HELD: Parties can become contractually obligated by conduct or words. An implied contract must be mutual and cannot be created solely by an employee's subjective understanding of employment terms. The parties' intent is a fact question for a jury. The comments made by Deseret when it purchased Hitch create a jury question about whether an implied-in-fact contract existed. For that reason, summary judgment was inappropriate and the court of appeals correctly reversed the district court. A question remains about whether Peters' employment with Deseret was at-will or through an implied-in-fact contract. Any estoppel issue must be addressed on remand.

STATUTE: K.S.A. 60-256

NO. 117,933—MARCH 29, 2019

FACTS: Easterberg was charged with rape and aggravated criminal sodomy in 2007. But he pled guilty to other offenses, and the sex crime charges were dismissed under the plea agreement. The journal entry of sentencing did not reflect that Easterberg's crimes were sexually motivated. Prior to Easterberg's release from prison, the Department of Corrections provided notice that Easterberg might meet the criteria of a sexually violent predator under the Kansas Sexually Violent Predator Act. The attorney general filed a petition seeking to have Easterberg civilly committed. Easterberg challenged the motion, claiming he did not fit the statutory criteria for a sexually violent predator. The district court disagreed, and Easterberg filed this original action in habeas corpus with the Kansas Supreme Court.

ISSUES: (1) Original jurisdiction; (2) eligibility for civil commitment

HELD: The State's argument that the court lacks jurisdiction because it could not have heard the case in 1859—at the adoption of statehood—is rejected. The state constitution allows the court to hear original actions and Supreme Court Rule 9.01 provides details on how parties should proceed. If Easterberg is truly not subject to the KSVPA, any proceeding under that Act is illegal. Merely being charged with a sexually violent offense is insufficient to trigger involuntary commitment under the KSVPA. The district court found at sentencing that Easterberg's crime was not sexually motivated. But there is no evidence about whether that was truly the case, or whether there was little incentive to make such factual findings because of Easterberg's guilty plea. For this reason, the case must be remanded for a determination as to whether Easterberg's sexual motivation was litigated in the criminal case. If it was, the State is estopped from arguing to the contrary in this proceeding, and Easterberg is ineligible for civil commitment. If it was not, the KSVPA proceeding may continue.

CONCURRENCT AND DISSENT: (Johnson, J., joined by Luckert, J., and Malone, S.J.) The journal entry of sentencing is clear. There is no need to remand this case for more factfinding; the court should rely on the district court's prior finding that Easterberg's crime was not sexually motivated.

DISSENT: (Stegall, J.) Original actions in habeas corpus cannot take the place of appeals. Easterberg had remedies available in district court and should have used them. But since the court took jurisdiction, remand is the appropriate next step.

STATUTES: Kan. Const. art. 3, § 3; K.S.A. 2017 Supp. 59-29a02(a), -29a02(c), -29a02(d), -29a02(e), -29a02(e)(1), -29a02(e)(5), -29a02(e)(13), -29a03(a), -29a03(h), -29a04(a), -29a05(a), -29a06(a), -29a07(g), -29a20



appellate procedure—criminal procedure—motions
state v. phillips
sedgwick district court—affirmed
no. 115,431—march 29, 2019

FACTS: Phillips was convicted of offenses including first-degree felony murder. The Supreme Court affirmed the convictions and prison terms, but vacated district court’s order of post-release supervision for life. State v. Phillips, 295 Kan. 929 (2012). Mandate issued in February 2013, with no order of remand. In August 2014 hearing, district court set aside the post-release supervision order. In March 2015, Phillips filed motion for a new trial  based on newly discovered evidence. District court denied the motion as time barred because it was filed more than two years after the February 2013 mandate. Phillips appealed, arguing the final judgment date for starting the statutory two-year period was in August 2014 when the district court conducted the “remand hearing.” 

ISSUE: (1) Motion for a new trial—date of mandate

HELD:  A district court’s judgment becomes final the date the mandate is issued, except in cases where remand instructions are given and further proceedings are necessary. In this case, the February 2013 mandate was fully determinative of the issues and therefore rendered the judgment final. District court correctly found Phillips’ motion was untimely filed.

STATUTES: K.S.A. 2018 Supp. 22-3601(b)(3), -3601(b)(4); K.S.A. 2016 Supp. 22-3501; K.S.A. 22-3501, -3501(1), 60-1507, -2106(c)


appeals—appellate procedure—criminal procedure—motions—sentencing
state v. salary
wyandotte district court—affirmed
no. 116,406—march 29, 2019

FACTS: Salary was convicted of first-degree premeditated murder and arson. A hard 50 life sentence was imposed for the murder conviction. The Supreme Court affirmed the convictions but vacated the hard 50 and remanded for resentencing. State v. Salary, 301 Kan.586 (2015).  On remand, State chose to seek a hard 25 life sentence which a judge could constitutionally impose without a jury. At resentencing, the district court imposed the hard 25 sentence and denied Salary’s various pro se motions and letters, finding Salary was arguing issues that were raised or should have been raised in his direct appeal. Salary appealed claiming: (1) district judge erred in denying the motion to dismiss that Salary filed between his first appeal and his resentencing; (2) ineffective assistance of trial and appellate counsel; (3) district judge erred in denying Salary’s request for exculpatory evidence; and (4) district judge was biased and denied Salary right of allocution at resentencing hearing by not allowing him to present evidence of innocence.  

ISSUES: (1) Motion to dismiss, (2) ineffective assistance of counsel, (3) request for exculpatory evidence, (4) allocution

HELD:  Record in this case is reviewed under doctrine of res judicata, finding the district court did not err in denying Salary’s motion to dismiss at the resentencing hearing.

            Salary failed to argue below that trial counsel’s performance was deficient regarding the admission at trial of photographs of the deceased, and the record had insufficient information to analyze this issue for first time on appeal. Salary’s claim of ineffective assistance by appellate counsel is rejected.

              Reviewing the record, it is not clear what exculpatory evidence Salary seeks that he does not already have. Salary failed to provide record citations or supporting authority for this claim, or explain why the issue is properly before the court. The Issue is deemed waived or abandoned for noncompliance with court rules. 

            On remand, the hard 25 was the only available sentence once the State decided not to seek the hard 50, making any allocution error harmless.

STATUTES: K.S.A. 2018 Supp. 22-3424(e), -3424(e)(4), -3601(b)(3), -3601(b)(4); K.S.A. 2015 Supp. 22-3212; K.S.A. 2013 Supp. 22-3424(e)(4); K.S.A. 21-4636(f), 60-1507


Kansas Court of Appeals


NO. 118,666— MARCH 29, 2019

 FACTS: Nye obtained KBA files relating to the 1959 murder of the Clutter family. The State filed an ex parte petition asking the district court to temporarily and then permanently enjoin Nye from the sale, publication, replication, or distribution of any of the materials. The district court issued an ex parte temporary restraining order and then, after a hearing, a preliminary injunction. After several rounds of motions and hearings, the district court dissolved the preliminary injunction after finding that it should never have been granted. Nye then filed a motion for attorney fees which was granted in an amount in excess of $150,000. The State appealed.

ISSUES: (1) Sovereign immunity; (2) injunction-bond rule; (3) reasonableness of attorney fees awarded; (4) award of appellate fees and costs

HELD: Sovereign immunity is jurisdictional. K.S.A. 60-905(b) addresses the State's liability for attorney fees if a temporary injunction is found to have been improvidently granted. In addition, case law provides that waiver can be premised on litigation conduct. The State's liability exists even though it was not statutorily required to post a bond at the time the temporary injunction was granted. Under K.S.A. 60-905(b), recovery is limited to fees actually and proximately resulting from the effect of the temporary injunction itself. The attorney fees ordered by the district court were reasonable under the circumstances. This appeal exists because the State challenged the district court's attorney fee award, which makes an award of appellate fees and costs permissible. Appellate fees and costs are awarded. But the amount billed by counsel was excessive, and the award is for a lower amount.

STATUTE: K.S.A. 60-905(b)


Tags:  Author: Patti Van Slyke 

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