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June 7, 2019 Digests

Posted By Administration, Monday, June 10, 2019
Updated: Friday, June 7, 2019

Kansas Supreme Court

Attorney Discipline

INDEFINITE SUSPENSION
IN RE THOMAS CALEB BOONE
NO. 120,744—JUNE 7, 2019

FACTS: A hearing panel determined that Boone violated KRPC 1.1 (competence); 1.3 (diligence); 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation); and 8.4(d) (engaging in conduct prejudicial to the administration of justice). Boone also stipulated to a violation of 3.4(d) (failure to comply with a discovery request). The allegations arose after Boone twice failed to prosecute a civil action, missing multiple deadlines and failing to comply with district court orders. Boone appealed the dismissal of one action but the court of appeals affirmed the district court, finding that Boone's appellate brief failed to comply with court rules.

HEARING PANEL: The hearing panel found evidence to support the allegations made in the complaint. When considering discipline, the panel noted Boone's prior history of discipline, the pattern of misconduct, and the number of rule violations. In mitigation, the panel acknowledged the illness and death of Boone's father and Boone's genuine remorse for his actions. The disciplinary administrator recommended that Boone's license be indefinitely suspended. Boone asked that he be placed on probation, but because some of his conduct involved dishonesty, the panel determined that probation was not appropriate. The hearing panel agreed with the disciplinary administrator that indefinite suspension was the appropriate discipline.

HELD: There were no exceptions filed to the hearing panel's report, so it was deemed admitted. The court denied Boone's request for probation, finding that the misconduct was not amenable to probation. The court adopted the recommendation of the hearing panel and ordered that Boone's license be indefinitely suspended.

ORDER OF DISBARMENT
IN RE MATTHEW EDGAR HULT
NO. 24,854—JUNE 6, 2019

FACTS: Hult's law license was indefinitely suspended in February 2018. Since that time, four additional complaints have been filed alleging additional violations of the KRPC. In a letter, Hult voluntarily surrendered his license to practice law in Kansas.

HELD: The court accepts the surrender of Hult's license, and he is disbarred.

Civil

CONSERVATORSHIP—FACTFINDING—GUARDIANSHIP
IN RE GUARDIANSHIP AND CONSERVATORSHIP OF B.H.
WILSON DISTRICT COURT—COURT OF APPEALS IS REVERSED
CASE REMANDED
NO. 118,188—JUNE 7, 2019

FACTS: Biological mother and father relinquished custody of their children to relatives through a legal guardianship. Once that placement was made, the state terminated child- in-need-of-care proceedings that were pending against the parents. Both parents spent time in prison, neither paid the child support that was ordered, and father left the state after he completed his prison term. After some time passed, mother and father sought to terminate the guardianship, citing a constitutional right to parent. After hearing evidence, the district court denied the motion, citing clear and convincing evidence that the guardianship was in the children's best interests. The parents appealed and the court of appeals reversed, finding that the district court erred by considering the best interests of the children. That court believed that the district court should have applied the parental preference doctrine because there had never been a finding of parental unfitness. The guardians' petition for review was granted.

ISSUE: (1) Termination of guardianship

HELD: The purposes of the Code for Care of Children were circumvented by the shift from a CINC proceeding to a guardianship action. Normally, voluntary guardianships are voluntary and may be terminated at any time for any reason. Under ordinary circumstances, parental preference rights would require termination of the guardianship. In this case, though, the voluntary guardianship stopped a final CINC determination and put the CINC action in limbo. There have never been parental fitness findings made in this case, and it is unclear whether the district court attempted to make those findings when refusing to terminate the guardianship. Because the record is unclear, this case is remanded to the district court for additional findings of fact and conclusions of law. If extraordinary circumstances exist to justify the continuation of the guardianship, those findings must be clearly made.

STATUTES: K.S.A. 2018 Supp. 38-2201(a), -2203(a), -2203(c), -2255, -2255(e), -2255(f), -2264, -2272, -2272(a)(1), -2272(b), -2272(h); K.S.A. 59-3091, -3091(h)

ADVERSE POSSESSION—MINERAL RIGHTS
OXY USA V. RED WING OIL
HASKELL DISTRICT COURT—COURT OF APPEALS IS AFFIRMED
DISTRICT COURT IS REVERSED—CASE REMANDED
NO. 111,973—JUNE 7, 2019

FACTS: Oxy USA, Inc. developed a productive oil and gas well on a unitized production unit of land. The unitized area included a quarter section of land which is the subject of this dispute. The well is not located on the property in question, but the owner of the minerals under that property can receive royalties from the production under the unitization agreement. However, Oxy was unable to determine which party owned a disputed one-half interest in the minerals under the property. To resolve that question, Oxy filed this interpleader and quiet title action to determine the rightful owner of the minerals under the property. Alice La Velle King owns the surface rights and an undisputed half interest in the minerals rights, and she claims the other half interest also belongs to her. Opposing her are 41 different people or groups all claiming ownership. The district court granted summary judgment to the other property owners, finding that King's claim to the royalties was barred by the statute of limitations. The court of appeals reversed on adverse possession grounds. The petition for review was granted.

ISSUE: (1) Can the surface owner of land enforce a reversionary interest in minerals at a later date, or is she barred by the statute of limitations or adverse possession

HELD: The misappropriation of royalties, standing alone, does not establish adverse possession of a mineral interest. It doesn't matter whether King knew about royalty payments being made to the other landowners. The surface owner is the legal owner of the minerals located underground. Title to the mineral rights quiets in her favor.

STATUTE: K.S.A. 60-503, -507 

criminal 

constitutional law—fourth amendment—MOTIONS—search and seizure
state v. andrade-reyes
johnson district court—reversed and remanded;
court of appeals—reversed
no. 115,044—june 7, 2019

FACTS: Two officers approached both sides of a car lawfully parked in dark area of an apartment complex lot, shined flashlights on the 2 individuals in the front seat, and repeatedly asked passenger (Andrade-Reyes) to open his hands. Once he did, the baggie dropped and retrieved tested positive for cocaine. Andrade-Reyes charged with possession of cocaine and drug paraphernalia. He filed motion to suppress evidence obtained through an unlawful seizure. District court denied the motion, finding the encounter was voluntary, or in the alternative, the detention was justified for officer safety.

ISSUE: (1) Unlawful seizure

HELD: Andrade-Reyes was unlawfully seized. The encounter was not voluntary. Under totality of the circumstances a reasonable person would not have felt free to terminate the encounter. And prior to Andrade-Reyes dropping the white substance, the officers lacked reasonable suspicion to detain him. Officer safety concerns alone do not justify an investigatory detention. State v. Reiss, 299 Kan. 291 (2014), is distinguished. All evidence obtained as a result of the unlawful seizure must be suppressed. Reversed and remanded.

DISSENT (Luckert, J.): Agrees with majority’s synthesis of the applicable law, but disagrees with its application of the law to facts in this case. Would hold that once officers initiated the encounter, a reasonably prudent officer would have been warranted in believing, because of specific and articulable facts, that Andrade-Reyes was armed and posed an immediate danger. Because of this belief, it was reasonable for officers to demand that he open his hand. This limited intrusion was reasonable and appropriate for officer safety purposes.

STATUTE: K.S.A. 20-3018(b), 22-2402

constitutional law—criminal law—criminal procedure—
Fourth Amendment—jury instructions—motions—Sixth Amendment—Statutes
state v. Barrett
riley district court—affirmed in part, reversed in part, and remanded
court of appeals—affirmed in part and reversed in part
no. 113,767—june 7, 2019

FACTS: Barrett convicted of reckless second degree murder and sentenced for the killing of an exterminator who had entered Barrett’s apartment to kill bugs. Trial delayed over six years until Barrett was competent to stand trial. Key question for jury was whether Barrett’s mental condition prevented him from forming a culpable mental state. On appeal, he claimed reversible error in district court’s failure to deny a requested instruction on imperfect self-defense voluntary manslaughter. In unpublished opinion, Court of Appeals affirmed, finding instructional error but the error was harmless under the “skip rule.”  Panel also rejected Barrett’s claim that his mental illness made his post-Miranda statements involuntary under Blackburn v. Alabama, 361 U.S. 199 (1960), and claim that State’s failure to force him to take his antipsychotic medication for four years violated the Kansas speedy trial statute. Review granted on all claims.

ISSUES: (1) Jury instructions - skip rule; (2) motion to suppress; (3) speedy trial

HELD: District court committed reversible error when it failed to give an imperfect self-defense voluntary manslaughter instruction. “Skip rule” is revisited, clarified, and corrected. The “skip rule” is a logical deduction that may support a finding of harmless error when it reasonably applies, but it does not replace longstanding harmlessness tests. Instead, the logical deduction inherent in the skip rule is one factor, among many, to be considered as part of the applicable harmlessness test. In this case, failure to give the imperfect self-defense voluntary manslaughter instruction was reversible error because jury could have reasonably convicted Barrett of voluntary manslaughter. Reversed and remanded for a new trial.

Blackburn is distinguished. Colorado v. Connelly, 379 U.S. 157 (1986), is controlling, holding that coercive police activity is a necessary predicate to finding a confession is not voluntary within the meaning of the Due Process Clause of the Fourteenth Amendment. District court found no evidence of coercive police activity in this case, and correctly dismissed Barrett’s motion to dismiss.

Denial of Barrett’s motion to dismiss on speedy trial grounds is affirmed. Sixth Amendment did not require State to force-medicate Barrett with potentially life-threatening medication to maintain his competency to stand trial.

STATUTE: K.S.A. 21-3403(b), 22-3220, 60-261

criminal law—sentences—statutes
state v. newton
saline district court—affirmed
court of appeals—affirmed
no. 116,098—june 7, 2019

FACTS: Newton was convicted of attempted rape. Years later, he filed motion to correct an illegal sentence, arguing the district court incorrectly calculated his criminal history score by classifying pre-1993 convictions as person felonies contrary to State v. Murdock, 299 Kan. 312 (2014)(Murdock I), overruled by State v. Keel, 302 Kan. 560 (2015). District court denied the motion, concluding Murdock I did not apply retroactively. Newton appealed. While appeal was pending, Keel overruled Murdock I. Court of appeals affirmed in an unpublished opinion, applying State v. Vandervort, 276 Kan. 164 (2003), to find district court properly scored Newton’s California conviction as a person felony. Review granted of Newton’s criminal history challenge, and parties were directed to address State v. Wetrich, 307 Kan. 552 (2018).

ISSUE: (1) Criminal history calculation

HELD: Resolution of this appeal does not resolve parties’ arguments regarding Wetrich. Instead, following State v. Murdock, 309 Kan. 585 (2019)(Murdock II), Newton’s 1977 California robbery conviction was properly classified as a person felony under Kansas caselaw in 2008 when his sentence in the Kansas case became final.

STATUTES: K.S.A. 2018 Supp. 22-3504, -3504(3); K.S.A. 2017 Supp. 21-6811(e)(3); K.S.A. 20-3018(b), 21-4710 et seq., -4711(e), 60-2101(b)

constitutional law—fifth amendment—motions—venue
state v. palacio
saline district court—affirmed
NO. 116,899—june 7, 2019

FACTS: Palacio fired shots into a truck, killing the passenger. Palacio filed motion for change of venue, arguing significant pretrial publicity made it impossible to receive an impartial jury. District court denied the motion. Palacio also filed motion to suppress his confession because officers continued to interrogate him after he asked for a lawyer, or alternatively, the officers used coercive tactics. District court suppressed statements Palacio made in-between time he asked for a lawyer and the time he told officers he wanted to say something. Jury convicted Palacio of first-degree murder under theories of premeditation and felony murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. On appeal he claimed the district court’s refusal to change venue violated K.S.A. 22-2616. He also claimed the officers violated his Fifth Amendment rights, or alternatively, his confession was involuntary.

ISSUES: (1) Change of venue statute; (2) motion to suppress confession

HELD: District court’s weighing of factors in K.S.A. 22-2616 is reviewed and upheld, including the slight favor of prejudice attributed to the severity of Palacio’s crimes that included a homicide. Same factor compared to weight of prejudice in cases involving more severe crimes of capital murder and rape.

Kansas Supreme Court has never directly addressed whether explicit questioning is always interrogation, but cases have indicated it is not. Court now confirms that an officer’s words or actions, including explicit questions, is interrogation only if the officer should have known that the questioning was reasonably likely to elicit an incriminating response from the suspect. In this case, the officers’ comments and questions were not interrogation and did not violate Fifth Amendment. Palacio thus was free to waive his previously invoked right, and knowingly and intelligently did so. Under facts in this case, district court did not err in finding the officers did not threaten, coerce, or engage in deceptive practices, and in concluding Palacio’s confession was voluntary.

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

STATUTE: K.S.A. 22-2616, -2616(1)

appeals—criminal law—evidence
state v. rucker
wyandotte district court—affirmed
NO. 117,143—june 7, 2019

FACTS: Rucker was convicted of first-degree felony murder. He appealed, challenging the sufficiency of the evidence supporting that conviction. He also claimed the district court erred in admitting gruesome photographs of the victim that had no probative value on issues in dispute at trial, and that only inflamed passions of the jury.

ISSUES: (1) Sufficiency of the evidence; (2) admission of photographs

HELD: State alleged the victim was killed while Rucker was “in the commission of” or “attempt to commit” one or more of four inherently dangerous felonies: robbery, rape, aggravated kidnapping, and aggravated burglary. Rucker’s challenge to the sufficiency of the evidence supporting this alternative means crime fails because the evidence considered in the light most favorable to the state supports a jury finding that Rucker committed the four underlying felonies.

At trial, Rucker did not object to the admission of any of the photographs, and stipulated to their admission. Rucker did not preserve this issue for appeal, and merits of his argument are not reached.

STATUTE: K.S.A. 21-3401(b), -3426, -3436(a)(2), (3), (5), (10), -3716 (Furse)

 

Kansas Court of Appeals

 criminal

criminal law—statutes
state v. glover
sumner district court—affirmed
NO. 120,098—june 7, 2019

FACTS: Glover entered unlocked church and entered locked sacristy where he stole items from a locked cabinet. State charged him with burglary. District court dismissed the charge, reasoning the State did not prove Glover entered the building without authorization because church was open to the public. State appealed, arguing the sacristy can be considered a building or structure under the Kansas burglary statute.

ISSUE: (1) Kansas burglary statute—building or structure

HELD: A locked sacristy inside an unlocked church is not a building or structure as the terms are used in K.S.A. 2018 Supp. 21-5807(a). Published and unpublished opinions in Court of Appeals are reviewed as seeming to read into the burglary statute a definition of building or structure that hinges, in part, on whether an individual or entity is renting or leasing a space within the main building. But under plain language of the statute which the Legislature has not modified for 19 years, the sacristy was nothing more than a room within the church building. District court’s dismissal of the burglary charge is affirmed.

STATUTE: K.S.A. 2018 Supp. 21-5807(a)(2)

Tags:  8807  Attorney Discipline  Haskell District  Johnson District  Riley District  Saline District  Sumner District  Wilson District 

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January 8, 9 and 11, 2019 Digests

Posted By Administration, Tuesday, January 15, 2019

Kansas Supreme Court

Attorney Discipline

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

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

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

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

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

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

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

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

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

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

Civil

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

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

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

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

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

CRIMINAL  

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

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

ISSUE: Postconviction Motion

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

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

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

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

ISSUES: (1) BIDS. Fees, (2) Sentences

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

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

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

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

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

ISSUE: Motion to Correct an Illegal Sentence

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

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

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

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

ISSUE: Lawfulness of Vehicle Search

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

STATUTES: K.S.A. 22-2402

Kansas Court of Appeals

Civil

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

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

ISSUES: (1) Ability to revive the judgment

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

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

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

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

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

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

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

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

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

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