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October 18, 2019 Digests

Posted By Administration, Monday, October 21, 2019

Kansas Court of Appeals

Civil

CHILD IN NEED OF CARE
IN RE D.H.
ELLIS DISTRICT COURT—REVERSED AND REMANDED
NO. 121,131—OCTOBER 18, 2019

FACTS: D.H. was born in December 2007. Mother and Father were not married and their relationship ended soon after D.H. was born. When D.H. was an infant, the State alleged that D.H. was a child in need of care. In a companion paternity case, Father's paternity was legally established. Father used that paternity case to seek residency and parenting time decisions for D.H. After a hearing, Father was given primary residency of D.H., with Mother having parenting time once per week. Soon after this hearing, Mother moved out of state. She delivered a son shortly after that, who was later diagnosed with autism. Mother sought and received services for this child, and also sought and received financial and residential stability for herself. For the next six years, Mother spoke on the phone with D.H., but did not actually visit in person. Mother finally had a personal visit with D.H. in 2017. Father died by suicide in 2018. Because of his death, D.H. was placed in protective custody and later sent to live with her paternal grandfather. The State filed a CINC petition. Mother traveled to personally appear at the temporary custody hearing. After hearing evidence, the district court found that D.H. was a CINC because Mother abandoned her. Mother appealed.

ISSUES: (1) Relevant time period; (2) sufficiency of the evidence

HELD: The district court found that Mother abandoned D.H. in 2009, meaning that D.H. was without adequate parental control at the time of the CINC hearing. The plain language of the statute does not require the district court to make its adjudication decision based only on the circumstances that exist on the day of the adjudication hearing. Rather, the district court's decision should be guided by the temporal language used in the relevant statutory subsection that is being considered. There was insufficient evidence presented that D.H. was in need of care.

STATUTE: K.S.A. 2018 Supp. 38-2202, -2202(a), -2202(d), -2250, -2251

JURY INSTRUCTIONS—SEXUALLY VIOLENT PREDATORS
IN RE CARE AND TREATMENT OF QUILLEN
JOHNSON DISTRICT COURT—VACATED AND REMANDED
NO. 120,184—OCTOBER 18, 2019

FACTS: Richard Quillen was committed as a sexually violent predator in 2006. As part of his civil commitment, Quillen was entitled to an annual review hearing. In 2013, Quillen asked for a jury trial when he challenged the Kansas Department for Aging and Disability Services' recommendation that he remain in custody. That request was granted, and after a hearing the jury found that the State met its burden to prove that Quillen did not meet the criteria for transitional release. Quillen sought a new trial, claiming the district court violated his due process rights by failing to instruct the jury on "serious difficulty controlling behavior" as a separate element that the State must prove. The district court denied the motion and Quillen appealed.

ISSUE: (1) Jury instructions

HELD: Quillen questioned whether the elements required to prove a committed person is not safe to be sent to transitional release are the same as those required to initially commit an individual. They are. Despite statutory changes and a consent decree, Quillen correctly notes that the State is constitutionally required to prove that Quillen would have serious difficulty controlling his behavior if transitionally released. The district court erred by not adding that essential element to the jury instructions, and the error was prejudicial. Quillen is entitled to a new trial.

STATUTE: K.S.A. 2018 Supp. 59-29a02(a), -29a07(a), -29a08, -29a08(a), -29a08(c), -29a08(d), -29a08(g)

Tags:  CINC  Ellis District Court  Johnson District Court  Sexually violent predators 

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October 11, 2019 Digests

Posted By Administration, Tuesday, October 15, 2019

Kansas Supreme Court

Civil

DUTY—IMMUNITY—LAW ENFORCEMENT
WILLIAMS V. C-U-OUT BAIL BONDS
JOHNSON DISTRICT COURT—COURT OF APPEALS IS REVERSED,
DISTRICT COURT IS REVERSED—CASE REMANDED
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

CIVIL

JURY MISCONDUCT
KING V. CASEY'S GENERAL STORES, INC.
RICE DISTRICT COURT—AFFIRMED
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)

 

DUTY—NEGLIGENCE
MORGAN V. HEALING HANDS HOME HEALTH CARE, LLC
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
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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September 27, 2019 Digests

Posted By Administrator, Monday, September 30, 2019

Kansas Supreme Court

Attorney Discipline

PUBLISHED CENSURE
IN RE JOSHUA T. MATTHEWS
NO. 120,924—SEPTEMBER 27, 2019

FACTS: After a stipulation was made, a hearing panel found that Matthews violated KRPC 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation), 8.4(g) (conduct adversely reflecting on lawyer's fitness to practice law), and Supreme Court Rule 211(b) (failure to file answer in a disciplinary proceeding). Matthews failed to satisfy the CLE requirements for the 2017 reporting year. In an attempt to come in to compliance, Matthews enrolled in a day-long program in Missouri. While attending the live programming, Matthews watched on-demand CLE programs over the course of five hours. The affidavits submitted showed that Matthews attended more than eight hours of CLE in one day, which is not permitted by Kansas rules. When questioned, Matthews initially denied watching video on-demand programs while also attending in-person programming. After his inaccuracies were questioned, Matthews self-reported his conduct to the disciplinary administrator.

HEARING PANEL: Matthews stipulated to the rule violations. Matthews had prior rule violations and the panel found dishonest actions after lying about his attendance. Based on the nature of the misconduct, the disciplinary administrator recommended that Matthews receive a public censure. Matthews asked that he be informally admonished.

HELD: The hearing panel's findings of fact and conclusions were accepted. In light of his prior discipline, the court rejected Matthews' request for an informal admonition. The court accepted the disciplinary administrator's recommendation for published censure.

 

ORDER OF SUSPENSION
IN RE KEVIN P. SHEPHERD
NO. 120,875—SEPTEMBER 27, 2019

FACTS: A hearing panel determined that Shepherd violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.15(a) (safekeeping property), 1.15(d)(1) (preserving client funds), 1.16(a)(1) (withdrawing from representation), 8.1(a) (false statement in connection with disciplinary matter), 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). Complaints arose regarding Shepherd's conduct after he failed to file an appellate brief, causing the appeal to be dismissed. Despite repeated promises that he would seek to have the appeal reinstated, Shepherd failed to act. Shepherd also had business checks returned for insufficient funds in diversion cases. This prompted an audit of his bank accounts, which revealed irregularities.

HEARING PANEL: The hearing panel found evidence sufficient enough to sustain violations of the KRPC. When considering the appropriate discipline, the panel noted that Shepherd had a history of prior offenses, including one from 2009 which resulted in a three-year suspension of Shepherd's license. There were also substantial mitigating factors present, including mental health struggles which contributed to the misconduct. Shepherd made restitution to his clients and enjoys the support of his local bench and bar. The disciplinary administrator recommended that Shepherd be indefinitely suspended. Shepherd asked that he be placed on probation, and he began working on some of his proposed probationary terms prior to the hearing. The hearing panel determined that Shepherd's dishonest conduct could not be cured by probation. Rather, the hearing panel recommended that Shepherd be suspended for two years, and that he be allowed to apply for reinstatement after one year.

HELD: The hearing panel's findings of fact and conclusions were deemed admitted. At the hearing, citing Shepherd's notable progress, the disciplinary administrator asked that Shepherd be indefinitely suspended but that the suspension be stayed to allow Shepherd to serve a five-year term of probation. The court found that Shepherd's misconduct was too serious to be cured by probation. A majority of the court imposed a two-year suspension, but stipulated that Shepherd should be allowed to seek reinstatement after one year. Other members of the court would impose either a more or less severe punishment.

 

Kansas Court of Appeals

 

Civil

CONSTRUCTION CONTRACTS—LEASES
DRYWALL SYSTEMS, INC V. A. ARNOLD OF KANSAS CITY
JOHNSON DISTRICT COURT—AFFIRMED
NO. 119,091—SEPTEMBER 27, 2019

FACTS: A. Arnold entered a five-year lease for part of a building which was owned by BMJ. There were other tenants using part of the building, so before A. Arnold could use the space, it needed to have a partition wall built. Drywall Systems, Inc. submitted the winning bid for the project. Drywall completed the work, but A. Arnold did not pay and Drywall sued both A. Arnold and BMJ for breach of contract, unjust enrichment, and a mechanic's lien foreclosure. The district court found for Drywall on the breach of contract action. But it refused to award prejudgment interest and attorney fees because BMJ, the property owner, was not a party to the contract and A. Arnold, who was a party, was not an "owner" as defined by the Kansas Fairness in Private Construction Contract Act. Drywall appealed.

ISSUE: (1) Liability under the Act

HELD: Drywall did prevail on a contract claim under the Act. But the clear and unambiguous language in the Act shows that only an "owner" can be liable for prejudgment interest and attorney fees. It is undisputed that A. Arnold is not the owner because it only holds a leasehold interest in the property. Without status as an owner, Drywall cannot recover from A. Arnold.

STATUTE: K.S.A. 2018 Supp. 16-1802(e), -1803, -1803(d), -1803(e), -1804, -1805, -1806

 

VEHICLE LICENSURE
CENTRAL RV V. KANSAS DEPARTMENT OF REVENUE
FRANKLIN DISTRICT COURT—AFFIRMED
NO. 119,744—SEPTEMBER 27, 2019

FACTS: A travel trailer insured by Safeco Insurance was damaged in an accident in Oregon. Safeco obtained a salvage title from the State of Oregon which carried a "TOTALED" designation. Central RV bought the trailer from Safeco. When Central RV titled the vehicle with the State of Kansas it received a rebuilt salvage title. Central RV asked the Department of Revenue to reconsider and give it a clean title. The Department of Revenue refused, so Central RV filed suit hoping to force a title change. The district court sided with the Department of Revenue, and Central RV appealed.

ISSUE: (1) The type of title required

HELD: The trailer met the Kansas statutory definition for a rebuilt salvage vehicle that should receive a rebuilt salvage title. The fact that the salvage status was issued by another state does not keep the trailer from being a rebuilt salvage vehicle. In fact, the statute exists to prevent people from title washing vehicles which were totaled in other states.

STATUTE: K.S.A. 2018 Supp. 8-127, -135, -126(ll), -126(mm), -126(qq), -126(rr), -197, -197(b)(2), -197(b)(5)

 

DIVORCE—MILITARY RETIREMENT
IN RE MARRIAGE OF THRAILKILL
GRAHAM DISTRICT COURT—AFFIRMED IN PART AND DISMISSED IN PART
NO. 118,246—SEPTEMBER 27, 2019

FACTS: Doug and Denise Thrailkill were both in the military, although Doug continued his career until he retired as a commissioned officer. Because of the length of his service, Doug began receiving retirement pay as soon as he retired. Doug worked a civilian job for a bit, but ultimately quit and received military disability. Denise filed for divorce in 2016. The proceedings were bifurcated and the decree was handed down before the property settlement was complete. After a hearing on property settlement issues, the district court equally divided the parties' retirement pay. The court awarded maintenance to Denise and ordered Doug to pay half of the balance on a loan that was taken out to help finance their son's education. The district court also had to address Doug's Survivor Benefit Plan, which involved a survivor benefit for a spouse after a military member's death. Doug appealed.

ISSUES: (1) Authority to rule on Survivor Benefit Plan, (2) calculation of maintenance and child support, (3) Doug's obligation on the student loan, (4) postjudgment issues

HELD: After a 1986 statutory amendment, a divorce court can order a service member to retain his or her former spouse as the Survivor Benefit Plan beneficiary, even after divorce. Because Doug was married to Denise when he began receiving retirement pay, Denise was included in spouse coverage. And now, because of the divorce, Doug can elect former-spouse coverage for Denise. There is no statutory limitation to a state divorce court's ability to make orders regarding former-spouse coverage. The district court must consider all income when making maintenance and child support decisions. A portion of each party's retirement pay must be considered as income. In addition, the maintenance award served to equalize the parties' income for the next eight years. Denise borrowed $22,000 towards her son's educational expenses. At the time of the hearing on financial matters, the balance was $11,000. The student loan was correctly treated as a marital debt. The district court correctly ordered each party to pay half of the remaining balance. Doug cannot appeal issues involving postjudgment orders because they were not mentioned in the notice of appeal, and the court does not have jurisdiction to consider them.

STATUTES: 10 U.S.C. § 1447, § 1448, § 1450, § 1450(f)(3); K.S.A. 2018 Supp. 23-2801(a), -2802(b), -2902(a), -3001

 

MEDICAL MALPRACTICE
BROWN V. TROBOUGH
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 119,501—SEPTEMBER 27, 2019

FACTS: Katy Brown went into labor in September 2015. Her labor was managed by Dr. Schuchmann, a resident. Dr. Trobough was the on-call physician; as such, he was also Dr. Schuchmann's faculty advisor and supervisor. During Katy's labor process, even though he was informed that Katy had a high risk pregnancy, Dr. Trobough left the hospital and was updated by Dr. Schuchmann via text message. Dr. Trobough eventually arrived at the hospital 10 minutes before Katy's son, Carter, was born. Unfortunately, Carter was critically ill when born and suffered from lack of oxygen. Dr. Trobough later texted another physician that during labor, nurses were only monitoring Katy's heart rate and not Carter's, missing the fact that he was in distress. Katy and her husband sued Drs. Schuchmann and Trobough and the hospital for negligence. The hospital and Dr. Schuchmann settled. After that was done, the Browns were given permission to amend their petition to include as defendants Dr. Teply, Lincoln Center, the medical practice, and the Kansas University Medical Education Foundation. Dr. Teply was the training site director for KU Medical School at Lincoln Center. The district court granted Lincoln Center's motion to dismiss, finding that it was barred as derivative by K.S.A. 40-3403(h). Dr. Teply's motion for dismissal was similarly granted after the district court found that Dr. Teply had no independent duty to Carter.

ISSUE: (1) Whether claim is barred by K.S.A. 40-3403(h)

HELD: The plain language of K.S.A. 40-3403(h) bars Brown's claim against Dr. Teply. The statute applies regardless of whether the plaintiffs seek to apply a corporate negligence theory. Any claim against Dr. Teply, even if it seeks to hold him liable for his failure to enforce the resident supervision rule, is derivative of the other doctors' alleged negligence. Had Drs. Schuchmann and Trobough not allegedly injured Carter there would be no claim against Dr. Teply. As a result, K.S.A. 40-3403(h) prevents Brown from bringing suit against Dr. Teply.

STATUTE: K.S.A. 40-3401(f), -3403(a), -3403(h)

 

criminal

constitutional law—criminal law—JUveniles—sentences—statutes
state v. N.R.
reno district court—affirmed
NO. 119,796—september 27, 2019

FACTS: 14-yr.-old N.R. was adjudicated a juvenile offender in 2006. Magistrate granted probation and ordered registration under Kansas Offender Registration Act (KORA) as a sex offender. Prior to the 5-year registration period expiring, the legislature amended KORA to require lifetime registration for N.R.’s age and offense. N.R. was charged in 2017 of failing to register. He moved to dismiss, arguing lifetime registration violated ex post facto and cruel and unusual constitutional protections. District court denied the motion based on controlling Kansas Supreme Court precedent regarding lifetime registration requirements. N.R. appealed, arguing KORA’s lifetime registration requirement as a sex offender is unconstitutional as applied to juveniles. He also argued his sentence was illegal because the magistrate judge lacked authority to order him to register.

ISSUES: (1) Constitutionality of registration requirement—juveniles, (2) KORA registration ordered by magistrate

HELD: District court did not err in finding the registration requirement constitutional as applied to juveniles. Kansas courts have repeatedly held that KORA offender registration is not punishment, and that a registration requirement is not part of a defendant’s criminal sentence. State v. Dull, 302 Kan. 32 (2015), is distinguished by the mandatory postrelase supervision ordered in that case being part of the juvenile’s sentence. N.R. showed no reason why registration should be considered punishment for juveniles. Test in State v. Petersen-Beard, 304 Kan. 192 (2016), is summarized and applied finding no showing the outcome would have been different had it involved a juvenile instead of an adult.

            KORA itself, rather than a court order, imposes the duty to register upon sex offenders. Any lack of magistrate judge’s authority is immaterial because the duty to register arises by statute, falls on N.R., and is not part of N.R.’s sentence.

STATUTES: K.S.A. 2018 Supp. 20-302b(a)(6), 22-4902(b), -4906(h), 38-2356(b); K.S.A. 2006 Supp. 22-4906(h)(1); K.S.A. 2005 Supp. 21-3502(a)(2), -3502(c); K.S.A. 22-4901 et seq.,

 

appeals—constitutional law—criminal law—first amendment—statutes—torts
state v. smith
douglas district court—reversed and sentence vacated
no. 119,919—september 27, 2019

FACTS: Perez lived across the street from Smith who accused Perez of sexual misconduct with Smith’s child. District court denied Smith a final protection from stalking (PFS) order against Perez, but granted Perez a final PFS order against Smith that included a special prohibition against Smith making any direct or indirect disparaging statements in public regarding Perez being a child molester. While entering her residence, Smith told her husband who was standing in their driveway to come inside away from the pedophile. Perez and family heard and recorded that statement. Smith charged with violating the PFS order. She moved to dismiss, arguing the PFS order was an unconstitutional, content-based restriction on her free-speech rights, and that criminal prosecution under K.S.A. 2017 Supp.21-5924 for violating the order was unconstitutional as applied to her. She appealed on the same constitutional claims, and also argued insufficient evidence showed that her statement was made in public. State asserts the constitutional claim is an impermissible collateral attack on the earlier PFS order, and State questions whether the PFS order is a content-based restriction.

ISSUES: (1) Sufficiency of the evidence, (2) procedural bar to constitutional question, (3) First Amendment, (4) content-based restriction

HELD: Sufficient evidence shows that Smith made the statement in public. Her Fourth Amendment argument concerning privacy of curtilage of her home is not applicable. Even with a curtilage analysis, her words carried beyond that curtilage and invaded curtilage of Perez’ house.

            Smith’s appeal is not procedurally barred. She is appealing a criminal judgment with a statutory right to appeal, and her free speech issue is now ripe. Even if she could have raised her First Amendment objections when the district court issued the PFS order, there is no bar to her raising them now.

            Smith’s speech warrants First Amendment protection. State’s invocation of the defamation category of speech that may be restricted fails. Cases involving libel are distinguished from isolated slander in this case. Even if slanderous statement could be assumed as defamatory speech, no evidence that Smith’s statement was in fact defamatory. No showing that Smith’s statement was knowingly false, and that Smith’s statement caused any harm to Perez’ reputation.

            The PFS order in this case is a content-based prior restraint on speech, thus presumptively unconstitutional. State fails to show the PFS order serves a compelling state interest. Purpose of Kansas stalking statute is to protect innocent citizens from threatening conduct that subjects them to a reasonable fear of physical harm. The statutes expressly excludes constitutionally protected activity from its definition and does not reflect any State interest in preventing slander. Under circumstances in this case, the PFS order, as applied solely to speech which did not subject a person to a reasonable fear of physical harm, was an improper prior restraint of Smith’s  constitutional right to freedom of speech. Conviction is reversed and sentence vacated.

STATUTES: K.S.A. 2018 Supp. 21-5427, 22-3602(a), 60-31a02, -31a02(d). -31a02(d)(1), -31a02(d)(2), -31a05(a); K.S.A. 2017 Supp. 21-5924

Tags:  1st Amendment  attorney discipline  Douglas District Court  Franklin District Court  Graham District Court  Johnson District Court  KORA Lifetime Registration for Juvenile Offender  medical malpractice  military retirement in divorce  Reno District Court  Shawnee District Court 

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September 20, 2019 Digests

Posted By Administration, Tuesday, September 24, 2019

Kansas Supreme Court

 

criminal 

constitutional law—criminal law—criminal procedure—evidence—jury instructions—restitution—verdicts
state v. gentry
saline district court—convictions affirmed, restitution vacated in part
No. 116,371—september 20, 2019

FACTS: Palacio fired a gun that killed a passenger in a passing truck. Gentry was charged with aiding or abetting by planning and fueling the encounter and directing Palacio to shoot. Jury convicted Gentry of first-degree murder, attempted first-degree murder, criminal discharge of a firearm at an occupied vehicle, and conspiracy to commit aggravated battery. Sentencing court ordered restitution that included $3642.05 for State’s trial preparation and witness expenses. On appeal, Gentry claimed district court erred by: (1) not instructing jury on unintentional but reckless second-degree murder, reckless involuntary manslaughter, and voluntary manslaughter as lesser included offenses of first-degree murder;  (2) not instructing jury on attempted unintentional but reckless second-degree murder, attempted reckless voluntary manslaughter, and attempted voluntary manslaughter as lesser included offenses of attempted first-degree murder; (3) instructional error that denied Gentry his constitutional right to a fair trial; (4) denying Gentry’s motion for continuance for additional time to secure the firearms expert in Palacio’s trial; and (5) ordering Gentry to pay $3642.05 in restitution to Saline County Attorney’s office for expenses related to witnesses and preparation of photographic trial exhibits.

ISSUES: (1) Lesser included offenses—first-degree murder, (2) lesser included offenses—attempted first-degree murder, (3) constitutional right to fair trial, (4) continuance, (5) restitution

HELD: Gentry’s requested instruction on voluntary manslaughter as a lesser included offense of first-degree murder would have been legally appropriate, but not factually appropriate where Gentry’s deliberate actions were not the actions of a person who had lost control, and an aider or abettor cannot be guilty of a crime if the primary actor did not have the requisite mental state of the crime. Because evidence would reasonably justify a jury finding that Gentry acted without an intent to kill but with knowledge that Palacio would engage in conduct dangerous to life when he gave assistance or encouraged Palacio in committing homicide, instructions on lesser included offenses of unintentional but reckless second-degree murder and reckless involuntary manslaughter would have been both legally and factually appropriate. District court erred in declining to give these requested instructions, but the error was harmless. Application of skip rule is discussed regarding situation in this case where jury split its guilty verdict between premeditated first-degree murder and first-degree felony murder.

            As held in State v. Shannon, 258 Kan. 425 (1995), and State v. Louis, 305 Kan. 453 (2016), attempted unintentional but reckless second-degree murder and attempted reckless involuntary manslaughter are not recognized offenses in Kanas, and thus would have been legally inappropriate instructions. An instruction on attempted voluntary manslaughter would have been legally appropriate, but not factually appropriate where  evidence did not support a finding that Gentry acted in the heat of passion, and Gentry failed to explain how facts in the case might support finding that Palacio acted in the heat of passion.

            Constitutional claim raised for first time on appeal is not reviewed.

            No abuse of district court’s discretion in denying motion for continuance.

            District court could have taxed Gentry for the photocopying and witness expenses as court costs, but instead specifically ordered reimbursement of these expenses as restitution. This was a legal error and an abuse of discretion. That portion of restitution order is vacated.    

STATUTES: K.S.A. 2018 Supp. 21-5109, -5202(c), -5210(a), -5301, -5403(a)(2), -5404, -5405(a)(1), -6604, -6604(b)(1), 22-3414, 28-172a, -172a(d); K.S.A. 22-3801, -3801(a), 60-455

 

Kansas Court of Appeals

Civil

CONSTRUCTION—CONTRACTS
WHEATLAND CONTRACTING V. JACO GENERAL CONTRACTOR
JOHNSON DISTRICT COURT—AFFIRMED
NO. 120,401—SEPTEMBER 20, 2019

FACTS: Wheatland and Jaco contracted for Wheatland to perform plumbing and associated work on a commercial building in Johnson County. The contract contained a forum selection clause which stipulated that to the "extent permitted by law", venue would be in Sedgwick County. The relationship between the parties soured, and Wheatland sued Jaco in Johnson County District Court claiming breach of contract and other violations of the Kansas Fairness in Private Construction Contract Act. Jaco filed a motion to dismiss or, in the alternative, to transfer venue to Sedgwick County under the terms of the contract. The district court denied that motion, citing K.S.A. 16-1806 which requires that actions under the KFPCCA must be filed in the county where the project is located. The Kansas Court of Appeals granted Jaco's application for interlocutory review.

ISSUE: (1) Venue

HELD: The plain language of the KFPCCA does not allow parties to avoid rights or duties of the act through contractual terms. The clear language of K.S.A. 16-806 requires that venue for a lawsuit must be in the county where the real property is located. Venue selection is a "right or duty" under a contract, meaning the venue selection provision in the construction contract is unenforceable.

STATUTE: K.S.A. 16-1801, -1801(b), -1803, -1804, -1805, -1806

Tags:  constitutional law  construction  contracts  criminal law  Johnson District Court  Saline District Court 

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