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August 28, 2020 Digests

Posted By Administration, Monday, August 31, 2020

Kansas Supreme Court

Attorney Discipline

ORDER OF DISBARMENT
IN RE SUSAN ELIZABETH VAN NOTE
NO. 16,327—AUGUST 26, 2020

FACTS: In 2012, the Disciplinary Administrator initiated an investigation into Van Note after she was charged with two counts of murder in Missouri. Her license was temporarily suspended while the criminal process concluded. Van Note was acquitted on criminal charges and a wrongful death lawsuit was settled. Van Note was disbarred in Missouri in 2017. In a letter signed by Van Note on July 21, 2020, she voluntarily surrendered her license to practice law in Kansas.

HELD: The Court accepts the surrender of Van Note's license to practice law in Kansas and she is disbarred.

criminal

appellate procedure—contracts—criminal procedure—evidence—motions
state v. Braun
ellis district court—reversed and remanded; court of appeals—reversed
No. 113,762—august 28, 2020

FACTS: State charged Braun with DUI under K.S.A. 2012 Supp. 8-1567(a)(2) for having blood alcohol content of more than 0.08, and in the alternative with DUI under K.S.A. 2012 Supp. 8-1567(a)(3). Braun filed motion to suppress the blood test, arguing the Kansas implied consent law was unconstitutionally coercive. District court denied the motion. In bench trial on a conditioned stipulation of facts to be used for consideration of motion to suppress or as necessary to preserve Braun’s arguments about the motion, district court convicted Braun of DUI under K.S.A. 2012 Supp. 8-1567(a)(2). Journal entry did not mention the alternative charge. Braun appealed the district court’s denial of the motion to suppress. In unpublished opinion the Court of Appeals affirmed Braun’s conviction. Panel found the district court should have suppressed the blood test result but that error was harmless because there was sufficient evidence in the stipulated facts to establish that Braun committed the alternative charge of DUI under K.S.A. 2012 8-1567(a)(3). Braun’s petition for review granted on sole issue of whether panel erred in finding harmless error.

ISSUE: Stipulated facts in support of conviction on alternative charge

HELD: Braun’s conviction is reversed. Parties can agree to conditions that limit the circumstances where stipulated facts can be used, and a court is bound by any such conditions or limitations. Here the purpose of the stipulation was solely to determine the issue of law arising from Braun’s motion to suppress, and also conveyed that the facts would not be binding if an appellate court determined that a conviction based on K.S.A. 2012 Supp. 8-1567(a)(2) was not valid. Panel erred by not considering and applying the conditions that limited the binding nature of the parties’ stipulation. District court’s judgment is reversed and case is remanded for further proceedings related only to the alternative count of DUI under K.S.A. 2012 Supp. 8-1567(a)(2).

STATUTES: K.S.A. 2019 Supp. 60-261; K.S.A. 2012 Supp. 8-1001(k), -1567(a)(2), -1567(a)(3)

constitutional law—criminal law—criminal procedure—motions—sentencing—statutes
state v. Juarez
lyon district court—affirmed; court of appeals—affirmed
no. 118,543—august 28, 2020

FACTS: Juarez entered plea to aggravated battery of prison guard. District court found Juarez guilty but did not notify him of obligation to register as a violent offender under Kansas Offender Registration Act (KORA), and KORA did not list aggravated battery as a crime that automatically required registration. Juarez remained confined until sentencing hearing six weeks later. At sentencing, district court exercised its discretion to require Juarez to register as a violent offender under KORA. Juarez objected to lack of notice to register but offered no evidence on the issue. Sentencing continued to address restitution. Juarez again objected to lack of notice but again offered no evidence and asked for no additional time to present evidence. Three weeks later, sentence became final upon restitution order. Juarez appealed. Court of Appeals affirmed in unpublished opinion, relying on State v. Marinelli, 307 Kan. 768 (2018). Sole issue on review is whether the notice provided by the district court violated Juarez’ right to due process.

ISSUE: Due process—notice of obligation to register as violent offender

HELD: Validity of the district court’s registration order is not challenged and is presumed valid. District court’s failure to provide timely notice of Juarez’s obligation under K.S.A. 2019 Supp. 22-4904(a)(1)(A) did not constitute a denial of procedural due process because Juarez failed to demonstrate prejudice. He neither presented additional evidence nor asked for the opportunity to do so with respect to district court’s exercise of discretion to order registration, and he remained incarcerated with no responsibility to register between the time the district court should have provided notice and the time it actually did so.  

CONCURRENCE (Biles, J.): Concurs with the result but believes Marinelli controls disposition. District court’s timing error does not excuse the registration obligation, and Juarez did not show any prejudice.

CONCURRENCE (Stegall, J.): Concurs that Juarez’ due process rights were not violated, but does so because district court’s registration order was not valid. Based on State v. Thomas, 307 Kan. 733 (2018), once Juarez was convicted the district court lost its opportunity to create the necessary precondition for a registration obligation to spring into existence through judicial fact-finding. When a district court does not make the necessary fact-finding at time of conviction - and the notice is not given - no process has been denied because the defendant is not an offender required to register under KORA.

DISSENT (Rosen, J.)(joined by Beier, J.): Would find Juarez’ due process rights were violated. Stands by his dissents in previous cases that KORA is punitive in effect, and thus is a consequence of Juarez’ plea. Marinelli is distinguished. Here, Juarez plead no contest to a crime while completely unaware the court would later require him to register under KORA, and he was never offered the opportunity to withdraw that plea by demonstrating good cause (pre-sentencing motion) instead of having to show manifest injustice (post-sentencing motion.  

STATUTES: K.S.A. 2019 Supp. 21-5413(b)(2)(A), 22-4901 et seq., -4902(e)(1), -4902(a)(5),  -4904(a)(1)(A); K.S.A. 22-4902, -4905

appeals—appellate procedure—criminal law—statutes
state v. Lindemuth
shawnee district court—reversed and remanded; court of appeals—affirmed
No. 116,937—august 28, 2020

FACTS: Jury convicted Lindemuth of one count of criminal threat, K.S.A. 2019 Supp. 21-5415(a)(1). Court of Appeals reversed, holding trial court erred by rejecting proposed jury instruction on workplace defense. 55 Kan.App.2d 419 (2018). State sought review of panel’s decision on factual appropriateness of the workplace defense instruction. Days prior to oral argument, State v. Boettger, 310 Kan. 880 (2019) and State v. Johnson, 310 Kan. 835 (2019), held the provision in K.S.A. 2019 Supp. 21-5415(a)(1), allowing a conviction if a threat of violence is made in reckless disregard for causing fear, is unconstitutionally overbroad. Lindemuth filed Supreme Court Rule 6.09 letter arguing his appeal was affected and requesting reversal of his conviction as in Johnson. Supplemental briefing ordered.

ISSUE: Change of law—constitutional error

HELD: Panel’s judgment is affirmed as right for the wrong reason. Lindemuth’s conviction cannot stand after Johnson, regardless of outcome on State’s issue for review. Like Johnson, the trial record provides no basis for court to discern whether jury concluded the State had proved beyond a reasonable doubt that Lindemuth committed criminal threat intentionally, and court cannot conclude the State met its burden of showing the constitutional error was harmless. District court’s judgment is reversed and case is remanded with directions.

DISSENT (Biles, J.)(joined by Stegall, J.): Would find the constitutional error harmless under the rationale in Justice Stegall’s dissenting opinion in Johnson, and would keep the case to reach the instructional error claim.

DISSENT (Rosen, J.): Would find the constitutional error harmless. While there was strong evidence supporting intentional conduct in Johnson, he agreed with majority that there was also evidence of recklessness.  Here he sees no evidence of recklessness where Lindemuth simply denied making any threatening statements.

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5202(j), -5223(a), -5415(a)(1)

 

Kansas Court of Appeals

criminal

appeals—criminal procedure - sentencing
state v. Dominguez
sedgwick district court - reversed and remanded
no. 121,618—august 28, 2020

FACTS: Dominguez sentenced in August 2017 to prison term and granted probation for 24 months. In October 2017 district court found probation violation and imposed three-day quick dip jail sanction. A September 2018 warrant issued for six probation violations. At a July 10, 2019, hearing district court revoked probation, applying the July 1, 2019, amendment to the intermediate sanctioning scheme which removed the requirement for a 120-day or 180-day sanction before revocation could be ordered. Dominguez appealed, arguing for first time that district court should have applied either the law in effect at time of her 2018 probation violations or the law in effect when she committed her 2017 crimes of conviction.

ISSUE: Revocation of probation—K.S.A. 2019 Supp. 22-3716

HELD: Following the reasoning in State v. Coleman 311 Kan. 332 (2020), and finding unpublished Court of Appeals’ opinions on the same issue persuasive, court holds the 2019 amendment to the intermediate sanctioning scheme at K.S.A. 22-3716 does not apply retroactively to probation violators whose crimes were committed before the effective date of the amendment.  State’s reliance on State v. Tearney, 57 Kan.App.2d 601 (2019), is misplaced.  Reversed and remanded for new dispositional hearing. District court must impose either a 120-day or 180-day prison sanction before revoking Dominguez’ probation unless the court finds a valid statutory ground to circumvent further intermediate sanctions.

STATUTES: K.S.A. 2019 Supp. 21-6810(e), 22-3716, -3716(c), -3716(c)(1)(C), -3716(c)(10);  K.S.A. 2018 Supp. 22-3716(c)(1)(A)-(D); K.S.A. 2017 Supp. 22-3716(c)(9)(B), -3716(c)(12); K.S.A. 2016 Supp. 22-3716(c); K.S.A. 22-3716

Tags:  appeals  appellate procedure  constitutional law  contracts  criminal law  criminal procedure  disbarment  Ellis District Court  evidence  Lyon District Court  motions  Sedgwick District Court  sentencing  Shawnee District Court  statutes 

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June 26, 2020 Digests

Posted By Administration, Monday, June 29, 2020

Kansas Supreme Court

Civil

PUBLIC DUTY—TORTS
MONTGOMERY V. SALEH
SHAWNEE DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED IN PART, REVERSED IN PART
NO. 117,518—JUNE 26, 2020

FACTS: Trooper Saleh initiated a traffic stop when he was informed that a passenger in the vehicle had a knife and was acting erratically. The driver rapidly accelerated and drove recklessly, running stop signs and red lights while his speed reached near 100 miles per hour. Saleh decided to stop pursuit, but not before the driver ran a red light and hit a pickup truck, injuring Montgomery and another individual named Bennett. The plaintiffs filed separate petitions alleging that Saleh was negligent and that the State was liable for his actions. The State moved for summary judgment, arguing that even if the plaintiffs could prove negligence there was no duty owed by Saleh under the public duty doctrine. The district court granted the motion, rejecting application of both the public duty doctrine and Kansas Tort Claims Act immunity. But the district court ruled the plaintiffs failed to proffer evidence sufficient to support a finding of causation in fact. The Court of Appeals affirmed the district court's findings on immunity and the public duty doctrine but remanded the case for further action on proof of causation. The Supreme Court granted Trooper Saleh and the State's petition for review.

ISSUES: (1) Application of the public duty doctrine; (2) breach; (3) causation; (4) immunity

HELD: The plain language of K.S.A. 8-1506 required emergency vehicle drivers to "drive with due regard for the safety of all persons." This language shows that the legislature did not intend to exempt emergency vehicle drivers from the consequences of reckless conduct. This statute imposes a specific duty on law enforcement and individuals may sue if they believe this duty has been breached. In order to prevail, the plaintiffs must prove that Saleh acted with reckless disregard for the safety of others. The evidence presented to the district court showed there is a material issue of fact as to whether Saleh exhibited reckless disregard when continuing to pursue the fleeing driver. Law enforcement's conduct during a pursuit can be the legal cause of a third party's injuries. Given the evidence presented to the district court, a jury could have found that the driver knew he was being pursued by Saleh. Because there is a statutory duty created by K.S.A. 8-1506(d), the discretionary function exception does not apply to Saleh's pursuit of the fleeing driver.

DISSENT: (Rosen, J., joined by Stegall, J., and Green, J., assigned) Justice Rosen would reverse the Court of Appeals and affirm the district court's grant of summary judgment, holding that the plaintiffs failed to establish a prima facie case that Saleh breached his duty of care under K.S.A. 8-1506.

STATUTE: K.S.A. 8-1506, -1506(d), 75-6101(b), -6103(a), -6104, -6104(e), -6104(n)

CONTRACTS
RUSSELL V. TREANOR INVESTMENTS
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 117,973—JUNE 26, 2020

FACTS: In 1997, the owner of two adjacent properties executed and recorded an Operation and Easement Agreement. The OEA restricted the building size and prohibited either property from being used as a regular grocery store. The OEA allowed for amendment if all of the current owners agreed in writing, and the OEA was amended to alter the original site plan. The amendment allowed for the creation of a multi-unit buildings with condominiums and retail space; Russell purchased a unit in the building in 2010. Treanor Investments purchased part of the property covered by the OEA in 2015, with hopes to amend the OEA and enlarge the property footprint to encompass a grocery store. Russell filed suit, claiming the OEA could not be amended without condominium owner consent. The parties filed competing motions for summary judgment and the district court agreed with Treanor, finding that it had been designated as the responsible owner, who had authority to act on behalf of other owners. The Court of Appeals affirmed, finding that the OEA and its amendments were clear and unambiguous in allowing the responsible owner to act on others' behalf. Russell's petition for review was granted.

ISSUES: (1) Authority to amend the OEA; (2) can amendment materially change the character of the real estate

HELD: The language of the OEA is plain and unambiguous, and it allows for the designation of a responsible owner to act on others' behalf. This language existed before Russell purchased his condominium. Nothing in the language prevents the responsible owner from further amending the OEA to alter size and use restrictions. Russell failed to raise a genuine issue of material fact about whether the proposed changes to the property would cause a material change in circumstances.

STATUTES: No statutes cited.

criminal

appeals—constitutional law—criminal law—criminal procedure—evidence 
state v. George
finney district court—affirmed
no. 120,190—june 26, 2020

FACTS: George convicted of first-degree murder, attempted distribution of a controlled substance, attempted aggravated robbery, aggravated assault, and criminal possession of a firearm. He appealed claiming: (1) his convictions were multiplicitous, arguing three of his convictions “folded” into one another and became a single offense; (2) prosecutorial error during cross-examination of a witness by commenting on the witness’ credibility; (3) trial court erred by allowing a witness to invoke Fifth Amendment and refuse to testify where the witness had been convicted and sentenced but his appeal was still pending; and (4) cumulative error denied him a fair trial.

ISSUES: (1) Multiplicity; (2) prosecutorial error; (3) invocation of Fifth Amendment; (4) cumulative error

HELD: George’s convictions are not multiplicitous. Elements of each of three crimes arising from the same conduct but grounded in three different statutes are examined, finding: attempted aggravated robbery and aggravated assault are not multiplicitous; attempted distribution or possession with intent to distribute a controlled substance and attempted aggravated robbery are not multiplicitous; and attempted distribution or possession with intent to distribute a controlled substance is not multiplicitous with aggravated assault.

            George failed to preserve his evidentiary claim and cannot evade the contemporaneous objection requirement demanded by K.S.A. 60-404 by reframing the issue as one of prosecutorial error. Defense counsel objected to the State’s cross-examination question as going “beyond the scope” of direct examination, but did not argue any grounds relating to impeachment or character evidence. This was insufficient for appellate review of the issue now claimed.

            Error resulting from district court’s exclusion of a witness’ testimony, if any, was harmless. Court declines to decide whether a plea of nolo contendere waives the privilege against self-incrimination after sentencing but before the conclusion of direct appeals. Even if error is assumed in this case, the error is harmless because the substance of this witness’ proffered testimony was entirely presented at trial through the testimony of a detective.

            Cumulative error doctrine does not apply in case having only one assumed error.

STATUTES: K.S.A. 2019 Supp. 21-5301, -5301(a), -5412(a), -5412(b)(1), -5420, -5420(a), -5420(b), -5705(a)(1), -5705(d)(3)(C), 22-3601(b)(4), 60-261; K.S.A. 60-404, -422(c)

criminal procedure—evidence—sentencing—statutes
state v. satchell
sedgwick district court—affirmed in part and vacated in part
court of appeals—affirmed in part and reversed in part
no. 116,151—june 26, 2020

FACTS: Satchell charged with 2014 sexual offenses involving two children. To show his propensity to sexually abuse children, State was allowed to present evidence under K.S.A. 2019 Supp. 60-455(d) about Satchell’s 2010 abuse of three other children under similar circumstances. Jury convicted Satchell on all counts. Sentencing court ordered consecutive “hard 25” sentences for the eight off-grid offenses, followed by 100 months in prison for criminal sodomy. Court also ordered lifetime parole for the off-grid offenses and lifetime postrelease supervision for the on-grid offense. On appeal, Satchell claimed in part the district should not have allowed the 60-455 evidence because it was unduly prejudicial, and argued he should not have been given lifetime postrelease supervision. In unpublished opinion, Court of Appeals rejected both claims. Review granted

ISSUES: (1) K.S.A. 60-455 evidence; (2) sentencing

HELD: District court did not abuse its discretion by admitting evidence of the 2010 allegations. The 2010 evidence, if true, would be relevant. At issue is whether the probative value of this evidence was substantially outweighed by the risk of unfair prejudice. Factors in State v. Boysaw, 309 Kan. 526 (2019), to be considered in determining probative value and undue prejudice are analyzed on facts in this case. In balancing those factors, the district court can exclude otherwise admissible relevant evidence if its probative value is “substantially outweighed” by the risk of undue prejudice. Court acknowledges criticism of past decisions that have left out the term “substantially,” but finds the proper test has been applied despite the occasional shorthand references. Here, the risks of undue prejudice did not substantially outweigh the high probative value of the 2010 evidence.

            District court erred by ordering lifetime postrelease supervision. Under K.S.A. 2016 Supp. 21-6819, in effect at the time of Satchell’s offenses, the proper post release supervision term is lifetime parole when the district court imposed consecutive on-grid and off-grid sentences. The lifetime postrelease supervision portion of Satchell’s sentence is vacated. 

STATUTES: K.S.A. 2019 Supp. 60-455(d); K.S.A. 2016 Supp. 21-6627, -6819, -6819(b)(2), 22-3717, -3717(d)(1)(G), -3717(u); K.S.A. 60-406, -407(f), -445

 

Kansas Court of Appeals

Civil

AGENCY ACTION—MEDICAL EXPENSES
UNIVERSITY OF KANSAS HOSPITAL AUTHORITY V. BOARD OF COUNTY COMMISSIONERS OF FRANKLIN COUNTY, KANSAS
WYANDOTTE DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,472—JUNE 26, 2020

FACTS: After seeing a man driving without headlights and with a suspended license, Ottawa police engaged in a high-speed chase. Officers lost track of the vehicle, and by the time they found it, the driver had crashed and the vehicle was fully engulfed in flames. Rescue personnel found the driver on the ground, suffering from severe injuries. Officers did not search the driver, and he was not placed under arrest, although a hold was placed while the man was in the hospital. After his release, the driver was taken to jail based on outstanding warrants that were unrelated to the police chase. After an investigation, the driver was charged with felony fleeing and eluding. The University of Kansas Hospital Authority filed suit against the City of Ottawa and the Franklin County Board of County Commissioners in an attempt to recoup some of the man's considerable medical bills. All parties filed motions for summary judgment. After considering arguments, the district court found that the driver was in the City's custody when medical treatment was initiated. But for the driver's injuries, he would have been arrested when the chase ended. The district court granted summary judgment in the Hospital's favor against the City but found that the County was not involved enough to be responsible for bills. The City appealed and the Hospital cross-appealed.

ISSUES: (1) Whether the driver was in custody; (2) existence of disputed material facts

HELD:  "Custody" has a broad definition. A formal arrest is not always necessary to show that a person is in custody. It is undisputed that County deputies did not witness any crimes being committed and did not participate in the chase. This means it is also undisputed that the driver was not in County custody when medical care was sought, and the County has no obligation to contribute to the driver's medical bills. There are lingering fact questions, though, about whether the driver was in the City's custody. Specifically, there was no stipulation that the driver was stopped by law enforcement, triggering the statutory obligation to take him into custody. Because there is a lingering fact question, summary judgment was not appropriate. The case must be remanded to clear up these issues.

STATUTE: K.S.A. 2019 Supp. 8-1568(b), -1568(c), 22-2202(d), -2202(i), -4612, -4612(a)

CONTRACTS—OIL AND GAS
THOROUGHBRED ASSOCIATES V. KANSAS CITY ROYALTY COMPANY
COMANCHE DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,068—JUNE 26, 2020

FACTS: Beginning in 1997, Thoroughbred acquired oil and gas leases. After it struck a big well, Thoroughbred acquired leases on nearby property to prevent competition. However, there was a 1/3 mineral interest in one of these tracts which remained unleased. In an attempt to acquire that lease, Thoroughbred contacted the owner, Oxy USA Inc., about selling. The parties signed a lease in 1998 which allowed Thoroughbred to unitize the lease. The lease would continue for as long as Thoroughbred produced oil or gas in paying quantities, either from the tract or from the unit as a whole. Oxy had a 3/16 royalty on production from the tract. In 1999, Oxy sold its interest in the lease to KC Royalty. Tensions arose when KC Royalty believed that gas from the unit was being drained into another unit that was not covered by KC Royalty's lease and that KC Royalty believed that Thoroughbred owed it unpaid royalties. After extensive litigation and another appeal which was heard by the Kansas Supreme Court, the parties ended up back in district court. That court ruled in favor of KC Royalty, finding that the parties agreed to unitize the Lease, that KC Royalty had waived certain conditions, and that Thoroughbred was equitably estopped from enforcing the conditions. After ruling that all liquids produced in the unit were incidental byproducts of the gas, the court concluded that KC Royalty's interest included all unit production. Both parties appealed.

ISSUES: (1) Whether the parties included the lease in the unit by modification, waiver, or estoppel; (2) award of interest in oil production arising from gas lease; (3) attorney fees

HELD: Substantial evidence supported the district court's finding that the parties modified their lease to include the parcel in the larger unit. This is proven by both Oxy and KC Royalty accepting royalty payments. KC Royalty had the unilateral power to waive conditions and allow Thoroughbred to include the lease in the larger unit. All evidence shows that KC Royalty intended to modify the agreement. Because Thoroughbred represented that KC Royalty's lease was in the unit for over three years, it is estopped from changing its mind now. A portion of the unit included a parcel which was a separate, oil-producing formation where oil production far exceeded gas production. There was no evidence that the oil and gas in this particular parcel was condensate. The district court improperly included this parcel in its royalty calculations, and the case must be remanded for accurate calculations. The district court did not abuse its discretion by denying KC Royalty's motion for attorney fees.

STATUTE: K.S.A. 55-205, -1617

CLASS ACTIONS—OIL AND GAS
COOPER CLARK FOUNDATION V. OXY USA, INC.
GRANT DISTRICT COURT—AFFIRMED
NO. 120,371—JUNE 26, 2020

FACTS: This appeal involves a class-action lawsuit over natural gas leases. After extracting gas, Oxy sent most of it for processing. Cooper, representing the wells included within the class action, disputes the method Oxy was using to calculate royalties for all Class Leases. The class action petition was filed in 2017, alleging that Oxy underpaid royalties from July 2007 through April 2014. Cooper's specific grievances included Oxy passing through processing fees, improperly calculating volume, using the wrong price structure, and not paying interest on conservation fees. The district court certified Cooper's class, and Oxy appealed that certification.

ISSUE: (1) Whether class was properly certified

HELD: Gas produced from Class wells wasn't marketable until it was in a condition suitable for its intended market. This didn't occur until after it was processed. The district court did not abuse its discretion when it found that the class petition raised questions of law and fact that were common to all class members. All of the claims can be litigated classwide without individualized evidence; this includes a dispute over whether Oxy owes interest for conservation fees that were repaid to class members. There are similarly no individualized issues regarding Oxy's statute of limitations defense. The district court rigorously analyzed the requirements for class certification and correctly concluded that the class was appropriate.

STATUTES: K.S.A. 2019 Supp. 60-223, -223(a), -223(b); K.S.A. 16-201, 55-1614, -1615

criminal 

appeals—appellate procedure—constitutional law—criminal procedure— damages—insurance—restitution—sentencing
state v. robinson
lyon district court—affirmed
no. 120,903—june 26, 2020

FACTS: Robinson pled no contest to battery of law enforcement officer. Sentencing included requirement that Robinson pay $2,648.56 in restitution to reimburse workers compensation insurance carrier that paid medical expenses of officer injured as a result of the battery. Robinson appealed claiming the statutes authorizing the district court to order restitution violate Section 5 of Kansas Constitution Bill of Rights by depriving him of right to have a civil jury determine the amount of damages, and violate the Sixth Amendment of U. S. Constitution by allowing a judge to determine the amount of restitution to be awarded the victim. He also claimed district court erred in awarding restitution to be paid to an insurance carrier. State contends the constitutional issues, raised for first time on appeal, were not properly preserved.

ISSUES: (1) Unpreserved claims; (2) restitution—Section 5 of Kansas Constitution Bill of Rights; (3) restitution—Sixth Amendment of U.S. Constitution; (4) payment to insurance carrier

HELD: The issues not raised below are considered because they potentially implicate a claim to the fundamental right to a trial by jury under the Kansas and United States constitutions, and a decision on the merits would serve the ends of justice.

            Robinson failed to establish that Section 5 of the Kansas Constitution Bill of Rights requires that a jury impose criminal restitution under K.S.A. 2017 Supp. 21-6604(b)(1) and K.S.A. 2017 Supp. 21-6607(c)(2). Criminal restitution is not a civil remedy and no provision in the Kansas territorial statutes mentions criminal restitution.

            District court’s restitution order did not violate the Sixth Amendment. Court of Appeals panels have addressed whether Sixth Amendment applies to criminal restitution, and review of one unpublished opinion is currently pending. Under State v. Huff, 50 Kan.App.2d 1094 (2014), rev. denied 302 Kan. 1015 (2015), restitution is not punishment, but even if punishment is assumed, the Kansas statutes do not violate the Sixth Amendment. Huff is consistent with cited  federal and state court opinions, and courts have concluded that Southern Union Co. v. United States, 567 U.S. 343 (2012), does not extend Apprendi and its progeny to restitution. Kansas statutes governing restitution impose neither mandatory minimum amounts nor mandatory maximum amounts, so they do not trigger concerns in Apprendi or Alleyne.

            Neither K.S.A. 2017 Supp. 21-6604(b)(1) nor K.S.A. 2017 Supp. 21-6607(c)(2) prohibit a district court from awarding restitution to an insurance carrier that has suffered damage or injury as a result of the defendant’s crime.

DISSENT (Leben, J.): Would vacate the restitution award because Robinson had a right to have a jury determine the amount of damage or loss he caused any victim of his crime. Text of Sixth Amendment, history, and precedent support a holding that Sixth Amendment applies to restitution. Cases cited by the majority as rejecting the claim that Apprendi applies to restitution are criticized. The two Kansas restitution statutes violate Apprendi by allowing judges to increase the statutory maximum punishment for an offense beyond that authorized by the jury’s verdict or the plea agreement. Even if Robison had no jury-trial right under Sixth Amendment, he had one under Section 5 of Kansas Constitution Bill of Rights.

STATUTES: K.S.A. 2017 Supp. 21-5413(c)(3)(D), -6604, -6604(b)(1), -6604(b)(2), -6607(c)(2), -6608(c)(7), -6613(a), -6613(b), 60-238, -2401, -4304(b); K.S.A. 1991 Supp. 21-6607(c)(2); K.S.A. 60-4301

Tags:  Agency Action  Appeals  Appellate Procedure  Class Actions  Constitutional Law  Contracts  Criminal Procedure  Damages  Evidence  Insurance  Lyon  Medical Expenses  Oil and Gas  Public Duty  Restitution  Sentencing  Statutes  Torts 

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April 17, 2020 Digests

Posted By Administration, Monday, April 20, 2020

Kansas Supreme Court

criminal

appeals—criminal procedure—evidence—jury instructions—sentences
state v. broxton
wyandotte district court—reversed and remanded
court of appeals—affirmed in part and reversed in part
no. 114,675—april 17, 2020

FACTS: Broxton convicted of second-degree murder, burglary, and felony theft. During trial, State introduced identity evidence of Broxton’s arrest in a 1996 Florida homicide case that closely mirrored the homicide in this case. District court denied Broxton’s request to admit evidence of a “No Information” document executed by the Florida prosecutor that indicated Florida lacked sufficient evidence to charge Broxton. District court found the document lacked probative value because it did not decisively state Broxton was innocent of that crime. District court also denied Broxton’s request for a felony-murder instruction, finding the instruction was legally inappropriate because State only charged Broxton with first-degree premeditated murder and felony murder. is not a lesser included offense. Broxton appealed claiming district court erred by: (1) failing to give a felony-murder instruction; (2) excluding from evidence the Florida homicide investigation document; and (3) improperly scoring Broxton’s prior Florida burglary conviction as person felony. Court of Appeals affirmed in unpublished opinion.

            As to the felony-murder instruction claim, panel found such an instruction was not factually appropriate in this case, and relying on State v. Young, 277 Kan. 588 (2004), explained that district court may instruct for felony murder even though the State only charged premeditated first-degree murder but was under no duty to do so. Broxton petitioned for review of panel’s decision that a felony-murder instruction was not factually appropriate. State cross-petitioned panel’s holding that a felony-murder instruction was legally appropriate.

            As to the exclusion of evidence claim, panel found the No Information document was relevant, but district court’s error in excluding this evidence was harmless. On appeal, Broxton challenged the panel’s harmlessness conclusion; State challenged panel’s finding of error.

            As to the scoring of Broxton’s prior Florida burglary conviction, a claim raised for first time on appeal, Broxton cites the change of law in State v. Wetrich, 307 Kan. 552 (2018).

            Review granted on Broxton’s petition and the State’s cross-petition.

ISSUES: (1) Jury instruction—uncharged crime; (2) admission of “no information” evidence

HELD: District court did not err in refusing to give a felony-murder jury instruction. Young predates the more precise framework for analyzing jury instructions adopted in State v. Plummer, 295 Kan. 156 (2012), and misstep in Young is apparent when viewed in light of Plummer. Because State did not charge Broxton with felony murder—and felony murder is not a lesser included offense of any crime Broxton was charged with—a felony-murder instruction was not legally appropriate in this case. No need to consider if the instruction would have been factually appropriate.

            District court erred by excluding the Florida “No Information” document from evidence, but any prejudice resulting from this exclusion was harmless in light of the entire record.

            The 1989 Florida burglary conviction must be scored as a nonperson felony. The Florida burglary statue prohibits a broader range of conduct than the Kansas statute, thus these are not comparable offenses. Under State v. Williams,  311 Kan. __ (2020), the change of law in Wetrich did not make Broxton’s sentence illegal, but did render it erroneous. Broxton must be resentenced correctly with his Florida burglary conviction scored as a nonperson felony. Sentence is vacated and case is remanded for resentencing.

STATUTES: K.S.A. 2019 Supp. 60-261, -455; K.S.A. 21-6810(d), -6811(c), -6811(j), 60-455

appeals—constitutional law—criminal law—sentences—statutes
state v. Corbin
saline district court—affirmed
no. 119,665—April 17, 2020

FACTS: Corbin entered no contest plea to first-degree premeditated murder. At sentencing he argued he was a person with an intellectual disability who was not subject to a mandatory minimum prison term by operation of K.S.A. 2019 Supp. 21-6622(b). District court disagreed and imposed a hard-25 life sentence. While Corbin’s appeal was pending, the legislature amended the statute to add other ways to establish the “significantly sub-average general intellectual functioning” standard. Kansas Supreme Court reversed and remanded for district court to reconsider Corbin’s motion using the new legislative criteria for determining intellectual disability. State v. Corbin, 305 Kan. 619 (2016). On remand, Corbin was allowed to present additional information. District court resentenced him to the original mandatory term, again finding Corbin was not a person with intellectual disability and. Corbin appealed.

ISSUE: Intellectual disability

HELD: District court did not abuse its discretion when it rejected Corbin’s motion and imposed a mandatory term of imprisonment. District court’s decision is reviewed as a “reason to believe” determination under K.S.A. 2019 Supp. 21-6622(b). Implications of extending State v. Thurber, 308 Kan. 140 (2018), outside the death penalty context are not argued or considered. 

STATUTES: K.S.A. 2019 Supp. 21-6622, -6622(b), 6622(h), 22-3601(b); K.S.A. 2015 Supp. 76-12b01(i); K.S.A. 60-2101(b), 76-12b01(i)

contracts—criminal procedure—evidence
state v. frazier
geary district court—reversed and remanded—court of appeals - reversed
no. 117,456—April 17, 2020

FACTS: Officers stopped car driven by Gould with passenger Frazier. Heroin was found, which led to search warrant in Ohio and discovery of drug evidence there. In Kansas, Frazier and Gould entered pleas pursuant to plea agreements that stated Ohio authorities agreed to dismiss and/or not file any charges resulting out of search warrant obtained as a result of the Kansas arrest. Prior to sentencing Frazier filed motion to withdraw plea, citing his discovery that an Ohio prosecutor had signed Gould’s agreement but not Frazier’s. District court denied the motion, finding the plea was fairly made and Frazier fully understood the consequences of his plea. Applying factors in State v. Edgar, 281 Kan. 30 (2006), Court of Appeals affirmed in unpublished opinion. Panel emphasized Frazier’s awareness that his attorney had not spoken with Ohio authorities, and they had not signed off on his plea agreement, and concluded Frazier was not misled or coerced about possibility of being charged in Ohio. Frazier petitioned for review, arguing district court abused its discretion because there were misleading or false statements contained in the plea agreement.

ISSUE: Withdrawal of plea—plea agreement  

HELD: Fundamental problem not addressed below is that Frazier was relying on a promise of conduct not made by a party to the plea agreement. Under basic principle of contract law, prosecutor and defense counsel presented Frazier with a contract that could be legally unenforceable against any Ohio prosecutor. A defendant does not understandingly sign a plea agreement when he relies on an uncertain provision that works in his favor and he justifiably believes that provision to be a certainty. No dispute in this case that the certainty of the lack of prosecution in Ohio was a significant factor in Frazier’s decision to enter into the plea agreement. District court’s decision finding no good cause for withdrawal of Frazier’s plea was based on errors of fact and law. Reversed and remanded to district court for Frazier to be permitted to withdraw his plea.    

STATUTE: K.S.A. 2019 Supp. 22-3210(d)(1)

appeals—constitutional law—criminal procedure
state v. harris
atchison district court—reversed and remanded; court of appeals—reversed
no. 117,362—april 17, 2020

FACTS: Harris was convicted in bench trial of felonious possession of marijuana. He appealed on four issues, claiming in part for first time that he did not properly waive his right to jury trial. Court of Appeals affirmed, 55 Kan.App.2d 579 (2018). Review granted on all issues.

ISSUE: Waiver of right to jury trial

HELD: Court addresses merits of the jury trial claim to prevent denial of fundamental right.  District court failed to properly apprise Harris of right to a jury trial and failed to ensure Harris understood the nature of the right he was waiving. Once Harris expressed his preference, district court simply accepted that Harris wanted the court to decide the matter and moved on without taking any steps to ensure Harris understood the right he was giving up. District court and Court of Appeals decisions are reversed. Case remanded to district court so Harris can be informed of right to a jury trial—and either exercise that right or properly waive it. Remaining issues in the appeal are not addressed.

STATUTES: None

CRIMINAL LAW—CRIMINAL PROCEDURE—EVIDENCE—JURY INSTRUCTIONS

STATE V. UK

LYON DISTRICT COURT—AFFIRMED
NO. 119,712—APRIL 17, 2020

FACTS: UK charged and convicted of first-degree premeditated murder. Based on evidence he had quarreled with victim, UK requested a voluntary manslaughter instruction as a lesser included offense. District court denied that request, finding no evidence of legally sufficient provocation. On appeal, UK claimed district court erred in not giving the jury the requested instruction, arguing district court improperly evaluated the degree of the quarrel as opposed to its existence, and further argued Kansas caselaw has erroneously conflated the separate statutory elements of “sudden quarrel” with “heat of passion.” UK also claimed for first time on appeal that district court erred in giving jury an unmodified PIK instruction that did not sufficiently define “premeditation.”

ISSUES: (1)  Jury instruction—voluntary manslaughter; (2) jury instruction—premeditation

HELD: UK’s request for a voluntary manslaughter instruction was legally appropriate but not factually appropriate. The mere existence of a “sudden quarrel” immediately preceding a homicide, without evidence of legally sufficient provocation, is insufficient to make a jury instruction on voluntary manslaughter factually appropriate. In this case, no error in district court’s limited gatekeeping determination that evidence did not constitute legally sufficient provocation. And UK’s conflation-of-statutory-elements argument essentially asks the court to overturn precedent dating back to State v. Coop,  223 Kan. 302 (1978), which the court declines to do.

            District court did not err in defining premeditation for the jury. Though the PIK instruction used both “intent” and “intentional” within two sentences, in context the meanings    of those two words leave no doubt that “premeditation”—as a thought process conducted some time before an act—is clearly different than the intentional nature of the act itself.              

STATUTE: K.S.A. 2019 Supp. 21-5202(h), -5402(a)(1), -5404

 

Kansas Court of Appeals

Civil

ACQUIESCENCE—CHILD SUPPORT—JURISDICTION
IN RE HENSON
SEDGWICK DISTRICT COURT—REVERSED AND REMANDED
NO. 120,543—APRIL 17, 2020

FACTS: Chris and Gina Henson divorced in 1991. Gina was awarded primary custody of the couple's children; Chris was ordered to pay child support and half of the children's medical expenses. Several years after the divorce, Chris moved to California while Gina remained in Kansas. In 1994, Gina attempted to enforce Chris's child support obligations, a case was opened in California, and Chris began paying child support under an income withholding order. A few years later, the district court trustee asked the California court to increase the child support amount and require payment for medical bills and insurance. The California court significantly increased Chris's child support obligation and asked that additional funds be paid towards the arrearage. In 2002, Chris moved to Colorado. The court trustee registered the California judgment and Chris's employer began withholding income. Gina moved to determine an arrearage, and after Chris did not appear the district court issued a default judgment, basing the arrearage amount on the California judgment. Chris eventually moved to set aside the default judgment on grounds that the California judgment was void. That motion was denied, and the district court renewed its holding that the California judgment remains in effect and that any calculation of Chris's arrearage should be based off that judgment. Chris appealed

ISSUES: (1) Jurisdiction of California court; (2) validity of default judgment; (3) request for setoff; (4) income withholding order; (5) attorney fees

HELD: Chris's challenge about the validity of the California judgment involves a challenge to subject matter jurisdiction. As such, it may be raised at any time. Similarly, there is no time limit on a challenge to a void judgment. Chris did not acquiesce in the California judgment by paying child support under it; paying a void judgment cannot amount to acquiescence. When the district court modified Chris's child support obligation, the Uniform Reciprocal Enforcement of Support Act was in effect in California but not in Kansas. The Full Faith in Credit for Child Support Orders Act accounts for this, requiring each state to recognize ongoing child support obligations from other states and giving them power to modify child support obligations only under limited circumstances. The FFCCSOA preempts URESA with respect to child support modification in an URESA enforcement action. Under the FFCCSOA, only Kansas had jurisdiction to modify Chris's child support obligation. California's child support modification order is void and cannot be used as a basis for default judgment or to determine arrearages. The district court did not make adequate findings of fact to allow for a review of whether Chris is entitled to an equitable setoff for amounts he overpaid under the void California judgment. That fact-finding must be done on remand. The district court was required to issue an income withholding order after it determined the amount of Chris's arrearage. But because the order is based on the void California judgment, the withholding order is no longer legally enforceable. On remand, the district court must determine the appropriateness of enforcing any future income withholding order. The district court did not abuse its discretion by awarding Gina attorney fees for representation undertaken in district court. But Gina is not awarded attorney fees on appeal because the application for fees did not comply with Supreme Court Rule 7.07(b)(2).

STATUTES: 23 U.S.C. §1738B; K.S.A. 2019 Supp. 23-2715, -3103(a), -36,202, -36,205, -36,205(c), -36,313, 60-260(b)(4), -260(b)(5), -260(c); K.S.A. 23-451, -9,101, -3106(a)

Tags:  acquiescence  Appeals  child support  Constitutional law  contracts  criminal law  criminal procedure  evidence  jurisdiction  jury instructions  sentences  statutes 

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April 10, 2020 Digests

Posted By Administration, Monday, April 13, 2020

Kansas Supreme Court

Civil

EMERGENCY PROCEDURES—QUO WARRANTO
KELLY V. LEGISLATIVE COORDINATING COUNCIL
ORIGINAL ACTION—QUO WARRANTO GRANTED IN PART
NO. 122,765—APRIL 11, 2020

FACTS: Because of the global pandemic caused by the novel coronavirus, Governor Kelly issued an emergency proclamation and follow-up executive orders. Under statute, the state of disaster emergency could not last longer than 15 days unless ratified by a concurrent resolution of the Legislature. Within that 15-day window, the legislature adopted House Concurrent Resolution 5025, extending the Governor's declaration to May 1, 2020. Governor Kelly used her emergency powers to issue Executive Order 20-18 which temporarily prohibited "mass gatherings", defined as any event that would bring together more than 10 people in an enclosed space. Importantly, Executive Order 20-18 removed religious gatherings from a list of exempted activities. Acting under HCR 5025, the Legislative Coordinating Council convened, voted, and revoked Executive Order 20-18. Governor Kelly filed this original action in quo warranto, and expedited proceedings were allowed given the unusual circumstances.

ISSUE: (1) Authority of the LCC

HELD: Quo warranto is an appropriate procedure for questioning the LCC's authority to revoke Executive Order 20-18. The House of Representatives and the Senate are not appropriate parties to the action and are dismissed. But the governor has standing to pursue this action. HCR 5025 establishes a conditions precedent which must be met before the LCC can act if the Legislature is not in session, including input from the State Finance Council. The LCC cannot act until the State Finance Council acts. K.S.A. 46-1202 is a general statute which creates the LCC and gives it some authority. In this instance, that statute must give way to the more specific statute, which governs the revocation of executive orders during an emergency.

CONCURRENCE: (Biles, J.) While agreeing with both the outcome and rationale, Justice Biles questions whether HCR 5025 can confer oversight powers on the LCC at all.

CONCURRENCE: (Stegall, J.) The majority reached the right outcome using the right rationale. There are lingering issues with the Kansas Emergency Management Act relating to separation of powers. The plain language of HCR 5025 may produce absurd results, but the court has no authority to rewrite the resolution.

STATUTES: K.S.A. 2019 Supp. 48-925 -925(b); K.S.A. 46-1202, 48-924, -924(b), 60-1203

criminal 

criminal procedure—sentences—statutes
state v. coleman
saline district court—reversed and remanded 
court of appeals—affirmed
no. 118,673—april 10, 2020

FACTS: In 2013, 2014, and 2015 cases, Coleman granted downward dispositional departure sentences of probation with underlying prison terms. In November 2017 revocation hearing, district court ruled that because probation had been granted as the result of dispositional departures it had authority under K.S.A. 2017 Supp. 22-3716(c)(9)(B), effective July 1, 2017, to revoke probation and impose the underlying sentences without first imposing intermediate sanctions. Coleman appealed. In unpublished opinion, Court of Appeals reversed and remanded, holding the trial court erred in applying K.S.A. 2017 Supp. 22-3716(c)(9)(B) retrospectively. State’s petition for review granted.

ISSUE: Probation revocation

HELD: Court of Appeals judgment is affirmed. The K.S.A. 2017 Supp. 22-3716(c)(9)(B) exception, which allows a trial court to revoke a probationer’s probation without first imposing graduated sanctions if the probation was granted as a result of a dispositional departure, applies only to probationers whose offenses or crimes of conviction occurred on or after that statute’s effective date.  District court judgment is reversed and case remanded with directions.

STATUTES: K.S.A. 2017 Supp. 22-3716, -3716(c)(9)(B); K.S.A. 2014 Supp. 22-3716(c)(11); K.S.A. 20-3018(b), 60-2101(b)

 

Kansas Court of Appeals

Civil

CONTRACTS—EMPLOYMENT
HEFNER V DEUTSCHER
SHAWNEE DISTRICT COURT—REVERSED AND REMANDED
NO. 119,201—APRIL 10, 2020

FACTS: Hefner, Deutscher, and Rottinghaus worked together in their optometry practice as a corporation. As an employee of the corporation, Hefner signed a noncompete agreement barring him from employment within a set geographic area for three years following his employment with the corporation. The contract specified that damages would be awarded for any breach or "threatened breach" of the contract. Over time, Hefner and Deutscher's relationship soured, and both parties proposed strategies that would allow Hefner to leave the corporation. Before the details could be finalized, Hefner located new office space and registered a new tradename with the Kansas Optometry Board. Hefner ultimately resigned instead of finalizing his exit agreement. And instead of practicing, Hefner decided he would rather teach optometry. It was thought that Hefner would work for the corporation for an additional six months, but Deutscher fired him for violating the noncompete clause. Hefner filed suit for breach of contract and wrongful termination. All parties filed competing motions for summary judgment. The district court granted Hefner's motion for partial summary judgment on his breach of contract claim and granted the corporation's motion for summary judgment on Hefner's wrongful termination claim. After a bench trial on the remaining breach of fiduciary duty claim, the district court found that Deutscher and Rottinghaus breached their fiduciary duty to Hefner because their motives for terminating Hefner were not made in fairness and good faith to the corporation. The district court awarded Hefner in excess of $1 million in damages. The corporation, Deutscher, and Rottinghaus appealed.

ISSUE: (1) Hefner's breach of contract claim

HELD: The use of the phrase "threatened breach" in Hefner's employment contract did not mean the same thing as an anticipatory breach. It had a broader meaning under the plain language of the employment contract, and encompassed actions which would lead a reasonable person to believe that a breach is imminent and likely to happen. The district court incorrectly defined "threatened breach", and this error resulted in the district court wrongly granting Hefner's motion for summary judgment. This case must be remanded to the district court for further action.

STATUTES: No statutes cited.

RATEMAKING—UTILITIES
HANSON V. KCC
STEVENS DISTRICT COURT—AFFIRMED IN PART,
REVERSED IN PART, REMANDED TO KCC
NO. 119,834—APRIL 10, 2020

FACTS: TKO Gas, LLC provides limited natural gas service in Kansas, operating as a middleman to resell gas to customers. TKO assumed contract rights from a previous provider and never went through a formal rate-setting process. Over time, some customers complained that TKO improperly calculated the heat content of the gas it was selling, resulting in a consistent 9.5% overcharge. Staff found that TKO changed the pressure at which is delivered natural gas. TKO acknowledged that this happened, but claimed it was industry standard practice to do so, and that the practice was in its contracts which were approved by the KCC. The KCC held a hearing and determined that none of the customers were entitled to relief. Even though TKO admitted to all of the customers' claims, the KCC ultimately determined that the rates charged by TKO were still reasonable, resulting in no harm to the customers. The district court reversed this finding, ruling that the KCC improperly focused on rate making while ignoring TKO's improper billing practices. The district court ordered the KCC to calculate the exact amount of overbilling and require TKO to pay refunds. TKO appealed.

ISSUE: (1) KCC's ability to address overpayment

HELD: The KCC is not limited to ratemaking or rate-reviewing functions. It has broad authority to determine whether any action is unreasonable or unfair. The KCC erred by only focusing on whether TKO's rates were reasonable, ignoring TKO's flawed billing methodology. TKO's practice of changing the pressure at which gas is distributed resulted in an overcharge and was neither honest nor fair. The KCC erred by not addressing it. But the district court erred by directing the KCC on how to fix this error. The KCC has total statutory control over crafting an appropriate remedy, and the case is remanded to the KCC.

STATUTE: K.S.A. 66-1,201, -1,205, -1,205(a), -1,206, -1,206(a), -1,207, 77-621(a)(1), -621(c)(4)

OIL AND GAS—TAX
IN RE TAX APPEAL OF RIVER ROCK ENERGY COMPANY
BOARD OF TAX APPEALS—AFFIRMED IN PART, REVERSED IN PART, REMANDED
NO. 120,387—APRIL 10, 2020

FACTS: In 2016, River Rock acquired producing gas wells, leases, and other assets in Kansas. After taking possession, River Rock learned that the counties in which the wells were located assigned a total appraised value of over $13 million. River Rock appealed while paying its taxes under protest. But River Rock only paid filing fees for a small percentage of its wells. River Rock sought an abatement of the filing fees it did pay. The Property Valuation Division of the Kansas Department of Revenue intervened to defend its valuation methods. After a hearing based on written testimony, BOTA upheld the counties' valuations. River Rock appealed.

ISSUES: (1) Valuing wells based on minimum lease values; (2) minimum leave values creating arbitrary and erroneous valuations; (3) whether BOTA properly considered the evidence; (4) whether BOTA erred when valuing equipment in the wells; (5) filing fee abatements

HELD: Personal property must be appraised at its fair market value. The Kansas Oil and Gas Appraisal Guide does not comply with this statutory directive because it prevents the gross working interest in any producing well from ever dropping to zero. The use of a minimum lease value on limited-production wells creates an assessed value higher than the actual gross working interest value, arbitrarily substituting the higher of two possible values. The Guide does not allow for the proper reconciliation of market values when the working interest value differs greatly from the minimum leave value. When an appraiser uses the minimum lease value, deductions for actual costs and other expense allowances are no longer used. This prevents sufficient consideration of these costs and does not lead to a fair market value of the property. Actual evidence shows that River Rock has wells with negative gross working interest, but the assigned minimum lease values do not reflect fair market value. BOTA did not ignore relevant evidence, rather overly simplified the evidence. River Rock cannot tie the value of its equipment to variable market conditions which ultimately affect the price of natural gas. BOTA properly valued River Rock's equipment with one exception: BOTA erred when valuing segments of underground poly flow lines. BOTA disregarded uncontroverted evidence that the lines could not be salvaged without destroying them. Filing fees are not allowed if they exceed the reasonable costs of administering the appeals. Neither BOTA nor River Rock properly calculated River Rock's filing fees, but the record on appeal does not contain enough information to determine how much abatement should have been granted to River Rock. If BOTA wants to deny River Rock's request for abatement, it must explain why.

STATUTE: K.S.A. 77-603(a), -613(e), -621(a)(1), -621(c), 79-329, -331(a), -501, -503a

GARNISHMENTS
STORMONT-VAIL HEALTHCARE V. SIEVERS
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 121,109—APRIL 10, 2020

FACTS: Stormont-Vail received a consent judgment against Sievers for unpaid medical expenses. The amount of the debt is undisputed. Sievers refused to set up a payment plan and instead asked Stormont-Vail to garnish him. Stormont-Vail took him up on his offer and filed two requests for orders of garnishment: one from his employer and one to attach Sievers' other property held in bank accounts. Sievers objected to the garnishment order at his bank, arguing that the funds in his bank account were exempt from attachment because the funds met the definition of "earnings." The district court disagreed with Sievers, finding that once Sievers' paycheck was deposited into a bank account the money became garnishable. Sievers appeals.

ISSUE: (1) Whether wages deposited into a bank account can be garnished

HELD: Kansas statutes create limits on how much of a debtor's earnings can be attached by a nonwage garnishment order. Only an employer can act as the garnishee for a wage garnishment. The meaning of "earnings" is expressly tied to an employer-employee relationship, and once money paid as earnings is deposited into a bank account it loses its status as earnings. The money in Sievers' bank account was garnishable, even if the funds originated from his earnings.

DISSENT: (Standridge, J.) Wages paid by an employer are earnings. So wages electronically paid to Sievers by his employer via direct deposit into his bank account meet the statutory definition of earnings and are exempt from attachment through garnishment.

STATUTE: K.S.A. 2019 Supp. 60-2310(a)(1), 61-3504(a), -3504(b), -3505(a), -3506(g), -3507, -3507(a), -3508, -3509, -3510; K.S.A. 61-3502, -3505

criminal

constitutional law—criminal procedure—evidence—juries—jury instructions
state v. albano
riley district court—affirmed
no.120,767—april 10, 2020

FACTS: Albano convicted of distribution of a controlled substance within 1,000 feet of a school. On appeal she claimed: (1) district court erred by failing to give a limiting instruction concerning the admission of evidence of Albano’s prior drug convictions; (2) district court undermined jury’s power of nullification by instructing jury that it “must” follow the law and that it was jury’s “duty” to do so; and (3) sentencing court’s use of judicial findings of prior convictions to sentence Albano violated section 5 of Kansas Constitution Bill of Rights - the right of trial by jury.

ISSUES: (1) limiting instruction—prior crimes; (2) jury instructions—power of nullification; (3) sentencing—Kansas Constitution

HELD: State’s argument that Albano invited the limiting-instruction error is rejected. A defendant does not waive applicability of a limiting instruction simply by introducing K.S.A. 60-455 evidence because a limiting instruction is required regardless of which party introduced the evidence. Here, district court erred in failing to give a limiting instruction, but this failure was not clearly erroneous. Unclear how jury could have impermissibly relied on Albano’s prior convictions as general propensity evidence when it was undisputed she committed the acts in question, and jury’s acquittal on one of the three charges establishes that jury did not impermissibly rely on the prior convictions to establish guilt.

            District court did not err in giving legally correct instructions. State v. Boothby, 310 Kan. 619 (2019), determined that the same “must follow the law” language Albano challenged in one instruction did not interfere with jury’s power to nullify. The “duty” language challenged   in a second instruction is substantively identical—telling jury to follow the law.

            There is no authority for the proposition that section 5 provides greater protection than the federal jury trial right by requiring a jury to determine criminal history. And the section 5 jury trial right does not prohibit judicial findings of prior criminal history because there was no common law right to have a jury determine criminal history when the Kansas Constitution was adopted.    

STATUTES: K.S.A. 2019 Supp. 22-3414(3); K.S.A. 60-455

constitutional law—criminal procedure—evidence
state v. R.W.
douglas district court—affirmed
no. 120,854—April 10, 2020

FACTS: Juvenile R.W. was interrogated several hours at police facility after being picked up from high school by two police officers. State later charged R.W. with multiple criminal counts including rape and aggravated battery, and district court certified R.W. for trial as an adult. R.W. filed motion to suppress statements he made during interrogation. District court granted the motion, finding R.W.’s statements were not the product of a free and independent will, and citing the officers’ promises, benefits, and reassurances as resulting in R.W.’s will being overborne. State filed interlocutory appeal.

ISSUE: Fifth Amendment—juveniles

HELD: District court’s suppression order is affirmed. Totality of circumstances in this case suggest that R.W.’s confession was not the product of a free and independent will. Standard of care to be exercised in assessing the validity of a juvenile’s statements during interrogation without counsel present is discussed. Here, substantial competent evidence supported district court’s factual findings, and district court applied the correct legal analysis. Agreement stated with specific findings and considerations in district court’s comprehensive memorandum decision. Officers may have had good intentions, but statements made to juveniles that are likely to mislead them regarding the nature and legal consequences of an interrogation have the potential to render a confession involuntary.

STATUTES: K.S.A. 2019 Supp. 22-3603, 60-460(f); K.S.A. 60-460(f)

Tags:  Constitutional law  contracts  criminal procedure  emergency procedures  employment  evidence  garnishments  juries  jury instructions  oil and gas  quo warranto  ratemaking  sentences  statutes  tax  utilities 

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December 13, 2019 Digests

Posted By Administration, Monday, December 16, 2019

Kansas Supreme Court

Criminal 

attorneys—constitutional law—criminal law—
evidence—jury instructions—statutes
State v. Harris
Lyon district court—affirmed; court of appeals—affirmed
No. 112,883—December 13, 2019

FACTS: Harris held victim for two hours, repeatedly forcing her to move from room to room within small apartment while demanding money. Jury convicted him of robbery, kidnapping, and criminal threat. Harris appealed on claims of trial errors and ineffective assistance of counsel. Case remanded for Van Cleave hearing, with no relief granted. In unpublished opinion, Court of appeals affirmed, rejecting the ineffective assistance claim, and finding two trial errors which were harmless both individually and collectively. Review granted on adequately briefed issues. Harris claimed insufficient evidence supported the kidnapping conviction and reasserted his claims of cumulative error and ineffective assistance of counsel. For first time on appeal, he claimed district court erred in failing to instruct on criminal restraint as a lesser included offense and failing to give unanimity instruction for kidnapping and robbery.

ISSUES: (1) Sufficiency of evidence—kidnapping; (2) jury instructions—lesser included offense; (3) jury instructions—unanimity; (4) cumulative error; (5) ineffective assistance of counsel

HELD: Forcing victim from room-to room within one-bedroom apartment constitutes a taking or confinement within kidnapping statute’s meaning under State v. Bugs, 219 Kan. 203 (1976), and Harris’ movements were not merely incidental to the robbery. No substantive basis for Harris’ claim that his two-hour holding of the victim was part of one continuous effort to get the victim’s money. Pursuant to State v. Haberlein, 296 Kan. 195 (2012), panel correctly rejected Harris’ alternative means claim that evidence failed to show he held victim with intent to facilitate flight.

State conceded a lesser included instruction was factually and legally appropriate, but panel correctly found no clear error on facts in this case.

Unanimity instruction on the kidnapping count would not have been appropriate because all of Harris’ actions were part of one unitary conduct. And no unanimity instruction was necessary on robbery count because State elected one of the two acts that could separately constitute the alleged robbery.

No reversal on cumulative effect of district court’s error of instructing on criminal restraint as an alternative crime rather than a lesser included offense, and omitting the specific crime the kidnapping was meant to facilitate.

Van Cleave court found counsel’s failure to challenge the sufficiency of the charging document within 14 days after trial deprived Harris of the more-strict standard of review under State v. Hall, 246 Kan. 728 (1990), but no prejudice occurred under the “post-Hall” common-sense rule. Panel affirmed on the prejudice prong, applying State v. Dunn, 304 Kan. 773 (2016), which overruled Hall. But issue for appellate review was not the charging document’s sufficiency but whether Harris’ opportunity for a hearing under the pre-Hall standard was squandered. Following Ferguson v. State, 276 Kan. 428 (2003), the common-sense rule applies and record shows Harris suffered no prejudice.

STATUTES: K.S.A. 2018 Supp 21-5408, -5408(a), -5408(a)(2), -5420(a), 22-3201(b) -3414(3), -3502; K.S.A. 2015 Supp. 60-261 

Kansas Court of Appeals

Civil

CONSUMER PROTECTIONCONTRACTSFORUM SELECTION
KANSAS CITY GRILL CLEANERS, LLC V. THE BBQ CLEANER, LLC
JOHNSON DISTRICT COURT
REVERSED AND REMANDED
NO. 118,687
DECEMBER 13, 2019

FACTS: Kansas City Grill Cleaners, LLC, and The BBQ Cleaner, LLC entered a contract for the purchase of outdoor grill cleaning equipment and supplies. The purchase agreement contained choice-of-law and forum-selection clauses which established that venue would exist only in Bergen County, New Jersey. In August 2016, KC Grill filed suit in Johnson County against BBQ Cleaner alleging a deceptive trade practice claim under the Kansas Consumer Protection Act. Relying on the forum-selection clause, BBQ Cleaner filed a motion to dismiss. The district court granted the motion, citing the forum-selection clause. KC Grill appealed.

ISSUE: (1) Enforcement of forum-selection clause

HELD: A forum-selection clause is unenforceable if the party resisting it shows that enforcement would be unreasonable under the circumstances. The KCPA contains a venue statute which is designed to allow Kansas consumers with certain prerogatives in prosecuting a consumer protection claim. A plain reading of that statute makes it clear the legislature intended to allow Kansas consumers to file suit against non-resident companies in Kansas. The district court erred when it found the forum-selection clause in this contract was enforceable.

STATUTE: K.S.A. 50-623(b), -625, -625(a), -625(c), -638(b)

DRIVER'S LICENSE SUSPENSION
MOLINA V. KANSAS DEPARTMENT OF REVENUE
FORD DISTRICT COURT
AFFIRMED
NO. 119,766
DECEMBER 13, 2019

FACTS: Deputy Scott stopped Molina after he was seen failing to maintain a single lane and changing lanes without signaling. After the stop, the officer noticed that Molina smelled like alcohol and had slurred speech. Molina failed a series of field sobriety tests and his preliminary breath test. Molina was arrested and transported to the sheriff's office, where personnel administered the Intoxilyzer 9000 breath test after waiting the prescribed 20 minutes. Molina's sample showed an alcohol level far exceeding the allowable amount, and Molina was given notice that his driving privileges were being suspended. Molina requested an administrative hearing and then review by the district court, claiming that Deputy Scott failed to substantially comply with the Intoxilyzer testing protocol. At the district court hearing, Molina's counsel failed to subpoena Deputy Scott, so there was no testimony regarding compliance with the testing protocol. Nevertheless, Molina argued that his Intoxilyzer results were flawed because Deputy Scott did not wait the required 20 minutes before administering the test. The district court disagreed, and Molina appealed.

ISSUE: (1) Compliance with testing procedure

HELD: Substantial compliance is sufficient to satisfy the 20-minute wait requirement. There is absolutely no evidence to support Molina's claim that his waiting period was improperly cut short. Molina failed to meet his burden to prove error. Moreover, substantial evidence proves that more than 20 minutes elapsed from the start of the waiting period to when Molina actually performed the test. The district court correctly rejected Molina's claims to the contrary.

STATUTE: K.S.A. 2018 Supp. 8-259(a), -1020(h)(2)(F), -1020(q), 77-603(a), -621(a)(1), -621(c)(7), -621(d)

Tags:  attorneys  constitutional law  consumer protection  contracts  criminal law  driver's license suspension  evidence  Ford District Court  forum selection  Johnson District Court  jury instructions  Lyon District Court  statutes  Weekly20191217 

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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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