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May 15, 2020 Digests

Posted By Administration, Monday, May 18, 2020

Kansas Supreme Court







NO. 119,911—MAY 15, 2020


FACTS: Jury convicted Morris of charges including both first-degree premeditated murder and alternative charge of first-degree felony murder, aggravated kidnapping, and aggravated battery. On appeal, he claimed district court erred in refusing to give a requested instruction on  voluntary intoxication, and in admitting gruesome photographs of victim’s partially decomposed body that had been exposed to damage from animals. Morris also claimed cumulative error denied him a fair trial.


ISSUES: (1) Jury instructions—voluntary intoxication; (2) gruesome photographs; (3) cumulative error


HELD: District court did not err in denying Morris’ request for a voluntary intoxication instruction. While the requested instruction would have been a legally available defense to Morris’ first-degree murder charge and conviction, such an instruction was factually inappropriate because insufficient evidence supported that defense in this case.

            District court did not abuse its discretion in admitting photographs of victim’s body. Because Morrisargument clearly fails on the merits, no need to determine State’s argument that Morris failed to properly preserve this issue by failing to lodge a specific objection to the 12 photographs admitted. A few of the admitted photographs may have been repetitive, and many may have been gruesome, but they were relevant and admissible to show the manner and violent nature of victim’s death and to corroborate testimonies of witnesses having credibility issues.   

            No error supports Morris’ claim of cumulative error, and evidence against Morris was overwhelming.


STATUTES: K.S.A. 2016 Supp. 21-5205(b), -5408, -5413; K.S.A. 60-401(b), -404, -445



Kansas Court of Appeals




NO. 118,845—MAY 15, 2020


FACTS: The case arises out of a real estate dispute between Evelyn Harder and Ronald Foster. In 2013, a jury found Foster guilty of negligent misrepresentation, intentional misrepresentation, and breach of contract. The real estate contract included a provision which required a party who breached the contract to pay attorney fees that the nonbreaching party incurred in connection with the default. The district court awarded Harder fees for the initial litigation but denied her motion for fees incurred while attempting to finalize the decision and journal entry. After this trial, Harder filed a second suit against Foster and his children, claiming that Foster fraudulently transferred all proceeds from the property sale to his family members, leaving him unable to pay Harder's judgment. Foster died during this litigation. His estate paid the judgment in full and the district court dismissed the action on summary judgment, finding that the payment extinguished any of Harder's claims. Harder's motion for attorney fees and costs was denied. These decisions were upheld on appeal except the panel determined the district court erred by denying Harder's motions for attorney fees and expenses in the 2013 case. The panel remanded the 2015 case to allow the district court to determine whether Harder could prove an exception to the American rule which requires parties to bear their own litigation costs unless a statute or contract expressly authorizes such an award. The district court's factfinding was limited to Harder's third-party claims. On remand, Harder claimed that she had a right to have a jury decide attorney fees and expenses for both the 2013 and 2015 cases. The district court disagreed, and the Court of Appeals granted Harder's application for an interlocutory appeal.


ISSUES: (1) Jury trial for attorney fees; (2) fees for 2013 case; (3) fees for 2015 case


HELD: The right to a jury trial in a civil action is not absolute. It is only guaranteed if such a right existed at common law at the time the Kansas constitution was adopted in 1859. There was no right to recover attorney fees at common law, and Kansas follows the American rule where fees are not awarded unless there is a statute or contractual provision so requiring. Kansas does recognize the third-party litigation exception to the American rule, but that exception did not exist in 1859. Accordingly, there is no right under the Kansas constitution to have a jury determine attorney fees and expenses. The 2013 judgment has been satisfied in full. Harder voluntarily chose not to present her attorney fees claim to the jury; her attorney expressly asked the trial court to resolve the matter, arguing in a pleading that the question of fees and expenses arising out of the real estate contract was not a jury decision. The error Harder now claims was invited by her counsel before the district court, and she is not entitled to relief. The prior decision on the 2015 case is upheld. Harder is not entitled to have a jury decide whether an exception to the American rule exists which would allow her to recover attorney fees for third-party conduct.

Tags:  attorney fees  criminal procedure  evidence  jury instructions  jury trial  Leavenworth District Court  remedy  Sedgwick District Court 

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June 1, 2018 Digests

Posted By Administration, Tuesday, June 5, 2018
Updated: Tuesday, June 5, 2018

Kansas Supreme Court


criminal law—criminal procedure—prosecutors—statutes
state v. king
wyandotte district court—affirmed
No. 116,146—june 1, 2018

FACTS: King and a codefendant were jointly tried on charges arising from a string of violent robberies. Jury convicted King of attempted capital murder, aggravated robbery, aggravated battery, conspiracy to commit aggravated robbery, and criminal possession of a firearm. Two weeks later King filed motion for a new and severed trial, citing statements by codefendant’s attorney during closing argument. District court denied the motion. On appeal King claimed:  (1) insufficient evidence that he was one of the robbers, and no evidence of a formal agreement to support the conspiracy conviction; (2) prosecutor improperly interjected his personal beliefs during closing argument; (3) district court erred by denying King’s motion for a new trial; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidence, (2) prosecutorial Error, (3) motion for New and severed trial, (4) cumulative error

HELD: Sufficient evidence supported the convictions. Under facts in case, a rational fact-finder could have found beyond a reasonable doubt that King was one of the robbers, and there was strong circumstantial evidence of an agreement to commit a string of robberies.

Prosecutor’s statements in closing argument are examined in detail. Prosecutor’s use of “I submit” was not error. Two of prosecutor’s “I think” statements” impermissibly conveyed the prosecutor’s opinion but were not error in this cases which occurred before Kansas Supreme Court cases put prosecutor’s on notice that such statements were improper. Three uses of “we know” were error, even if the inferences being drawn were reasonable, but these errors were harmless beyond a reasonable doubt.

King failed to request a severance before or during trial, did not object to the codefendant’s closing argument statements, and first asked for severance in his motion for a new trial. By failing to comply with K.S.A. 22-3204, King waived his ability to seek severance.

Aggregate effect of the three harmless prosecutorial errors found in this case were harmless beyond a reasonable doubt.  

STATUTES: K.S.A. 2017 Supp. 22-3601(b)(3); K.S.A. 2014 Supp. 21-5302(a); K.S.A. 22-3202(3), -3204 

criminal law—jury instructions­ prosecutors
state v. nesbitt
sedgwick district court—affirmed
No. 116,550—june 1, 2018

FACTS: Nesbitt convicted of felony murder, rape, and aggravated burglary. The crimes arose from a violent attack on a 100-year-old victim in her home, and the victim’s subsequent death. On appeal Nesbitt claimed:  (1) insufficient evidence supported his felony murder conviction because the victim’s death 21 days later was not within the res gestae of the underlying felony of rape, and no direct causal connection between the rape and the victim’s death; (2) insufficient evidence supported his aggravated burglary conviction because no evidence that he entered the home to commit rape; (3) prosecutor’s reference in closing argument to victim as a family “treasure” was improper attempt to inflame the passions of the jury; (4) trial judge erred by refusing to give a defense-proposed instruction on a race-switching exercise; and (5)  cumulative error denied him a fair trial.

ISSUES: (1) Sufficiency of the evidencefelony murder, (2) sufficiency of the evidence - aggravated burglary, (3) prosecutorial error, (4) race-switching instruction, (5) cumulative error

HELD: No legal merit to Nesbitt’s res gestae argument. Sufficient evidence supported Nesbitt’s conviction on felony murder, including the foreseeability of a rape victim’s death 21 days after the attack, when injuries the victim suffered caused pain that immobilized her, giving rise to the development of fatal blood clots.

Sufficient evidence supported jury’s verdict that rape, not theft, was the attacker’s goal on entering the home. Victim’s house was tidy and orderly but for the mutilated back door through which the attacker entered and the disorganized bedroom where the rape occurred. Nothing to indicate someone entered the house to commit theftnothing was missing or moved, including valuable items in plain view.

Prosecutor’s challenged remarks were improper, with no purpose other than inflaming passions of jurors, but under facts in case no reversible error.

No Kansas case found in which the proposed race-switching instruction has been given. Federal and state court cases are reviewed, with majority rejecting the instruction. Here, the proposed instruction was not legally appropriate under Kansas law, thus district judge did not err in refusing to give it.

The single error found in this case does not support a cumulative error claim.

STATUTES: K.S.A. 2014 Supp. 21-5402(a)2), -5402(c)(1)(E); K.S.A. 2013 Supp. 21-5807(b)(1)


appeals—criminal procedure—motions—statutes
state v. parks
reno district court—affirmed
No. 116,172—june 1, 2018

FACTS: Parks convicted in 1997 of the 1978 premeditated first-degree murder of his wife. State v. Parks, 265 Kan. 644 (1998). Over 16 years later, Parks filed pro se “Motion to Set Aside a Void Judgment,” claiming his no contest plea was not knowing and intelligent. Appointed counsel argued the motion should be treated as one to withdraw Parks’ plea. District court agreed and denied the motion, finding it untimely with no showing of excusable neglect for the delay. Parks appealed, arguing for first time that district court should have construed the pro se motion as one under K.S.A. 60-1507 that would have been timely under the manifest injustice exception.

ISSUE: Motion to withdraw plea

HELD: Under facts in the case, invited error doctrine applies where Parks repeatedly invited district court to construe a pro se motion as a motion to withdraw plea. Argument that the district court should have construed and treated Parks’ motion as a K.S.A. 60-1507 motion is rejected. District court correctly held the motion was untimely filed. Parks failed to meet his burden of demonstrating excusable neglect to allow the out-of-time motion to withdraw his plea.

STATUTES: K.S.A. 2017 Supp. 22-3210, -3210(e)(1), -3210(e)(2), -3601; K.S.A. 22-3210, 60-1507; K.S.A. 21-3401, -4501 (Weeks, 1974)

Kansas Court of Appeals


NO. 116,842—JUNE 1, 2018

FACTS: Pardo is a long-term employee of UPS, and he continues to work there to this day. Pardo injured his shoulder in 2013 during the course of his employment. The injury was surgically repaired and the parties agreed to a 15% permanent partial impairment rating. Pardo injured his left shoulder again in 2015 while at work. Surgery revealed a new injury. It was treated and Pardo returned to work, but he continued to have pain and a limited range of motion. All of the physicians who examined Pardo agreed that he had residual issues with the shoulder that warranted both future medical treatment and an impairment rating. An amendment to K.S.A. 2014 Supp. 44-510d(b)(23) required the physicians to consult the American Medical Association Guides to the Evaluation of Permanent Impairment, Sixth Edition, which allows for only one lifetime impairment rating with no exception made for a physician's skill, experience, expertise, training, or judgment. Based on that decree, Pardo was assigned a zero percent impairment rating. The ALJ denied Pardo's request for compensation. That finding was affirmed by the Board, and Pardo appealed.

ISSUE: (1) Constitutionality of K.S.A. 2014 Supp. 44-210d(b)(23)

HELD: UPS provided no evidence to prove that the change from the 4th edition of the AMA Guides to the 6th edition was reasonably necessary to promote the general welfare of the people of Kansas. But the State did prove that the amendment was made because the 6th edition is more medically sound than the 4th edition. Under the Workers Compensation Act, Pardo surrendered his right to seek a common-law award from his employer. When the 6th edition of the Guides is used, Pardo gets nothing in return for that surrender. This leaves Pardo with no remedy and renders K.S.A. 2014 Supp. 44-510d(b)(23) unconstitutional as applied to him. The remedy is to sever the portion of the statute that is unconstitutional as applied to Pardo. The case is remanded for further proceedings.

STATUTES: Kansas Constitution Bill of Rights, § 1, §18, Article 2, § 1, Article 3, § 1; K.S.A. 2014 Supp. 44-501(e), -501b(d), -510d(b)(23); K.S.A. 44-574(b)

NO. 118,189—JUNE 1, 2018

FACTS: Father's paternity was established in 2009. Over the years, mother and father had many disagreements about custody, parenting time, and child support. In 2017, the paternal grandmother filed a motion requesting grandparent visitation of one weekend per month. Mother objected and asked for attorney fees, claiming that no provision in the Kansas Parentage Act allows for grandparent visitation. After a hearing, the district court concluded that M.V. had a substantial relationship with grandmother and that visitation was in her best interests. The district court granted visitation using grandmother's proposed schedule and denied mother's request for attorney fees. Mother asked the district court to reconsider and proposed a once-per-month visit of five hours, versus an entire weekend. Mother based this request on the fact that grandmother had an unknown man living with her and because grandmother took M.V. to visit father in jail, even though father was facing child sex abuse charges and the visits violated a court order. The district court denied reconsideration and mother appealed.

ISSUES: (1) Due process violation; (2) attorney fees

HELD: Grandmother does have the right to seek visitation in the context of a paternity action. And grandmother satisfied her burden to prove that there was a substantial relationship and that visitation was in M.V.'s best interests. But in any grandparent visitation action, the district court must presume that a fit parent is acting in the child's best interests and must give special weight to the parent's proposed visitation schedule. There is no indication in this case that the district court ever properly evaluated mother's proposed schedule. This case must be remanded in order to allow the district court to make all necessary findings about mother's proposed schedule, which cannot be rejected unless it is found to be unreasonable. On remand, the district court must also follow the statute when evaluating mother's request for attorney fees.

STATUTE: K.S.A. 2017 Supp. 23-3301, -3301(b), -3304

Tags:  attorney fees  grandparent visitation  Reno 

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January 2, 2015 Digests

Posted By Administration, Friday, January 2, 2015
Updated: Monday, February 10, 2020

Kansas Court of Appeals


NO. 111,191 – JANUARY 2, 2015

FACTS: This dispute involves the efforts of the asset manager for the owner of an apartment complex to terminate the services of the property manager for that apartment complex. Curo Enterprises LLC (Curo) the asset manager, brought an action in Johnson County District Court to remove Dunes Residential Services Inc. (Dunes) as the property manager. Dune Point West Associates LLC (DPW) owned the apartment complex. The parties ultimately settled the case, but Curo appeals from the district court's order denying its request for attorney fees pursuant to a fee-shifting provision in the management agreement between DPW and Dunes. Curo argues the district court erred by finding Curo was not the owner's agent under the terms of the management agreement and was neither a "party" nor a "prevailing party" under the fee-shifting provision. Curo argues it filed suit as the owner's agent and, when the district court approved and incorporated the parties' settlement agreement into an order, the district court qualified Curo as a prevailing party entitled to attorney fees.

ISSUES: (1) Attorney fees; and (2) prevailing party

HELD: Court held under the clear language of the management agreement, Curo had the right to enforce the agreement "on behalf of" DPW without requiring any action or consent from the managing member of DPW. Given that the management agreement expressly gave Curo the authority to act on behalf of DPW in terminating the management agreement, Court held that Curo, as DPW's agent, fell within the "either party" limitation in the management agreement's language to allow collection of attorney fees. Court held the district court's order specifically ordered and authorize tasks which required it to maintain supervision of the transition between the property management companies, all of which were predicated on Dunes' voluntary resignation as the property manager, and it provided continuing jurisdiction over the case despite the fact the trial date became moot. The district court's order was more than a mere recognition of the parties' settlement and dismissal of the case. Therefore, court found the order was a consent decree qualifying Curo as a prevailing party. Because the court agreed that Curo was acting as the owner's agent when it sought to terminate Dunes as the apartment complex property manager under the terms of the management agreement and because the court found Curo qualified as both a party and a prevailing party under the fee-shifting provisions of the management agreement, the court reversed the district court and remanded to determine attorney fees and costs to which Curo is entitled under the management agreement as the prevailing party.

STATUTE: K.S.A. 60-217

Tags:  attorney fees  Johnson District Court 

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