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October 25, 2019 Digests

Posted By Administration, Monday, October 28, 2019

Kansas Supreme Court

 

Civil

DAMAGES—PRODUCTS LIABILITY
CORVIAS MILITARY LIVING, LLC V. VENTAMATIC, LTD. AND JAKEL, INC.
GEARY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART
DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, REMANDED WITH DIRECTIONS
NO. 116,307—OCTOBER 25, 2019

FACTS: Corvias is a construction firm specializing in military housing. Corvias built thousands of units near Fort Riley. In these homes, it installed bathroom ceiling fans manufactured by Ventamatic, Ltd. and Jakel Motors, Inc. After installation, several fans caught fire and damaged homes. Corvias not only incurred damage with fire remediation, it also needed to replace all of the fans in other units, so it filed suit. The district court granted summary judgment to both defendants, finding that the suit was unquestionably a products liability claim governed by the Kansas Product Liability Act. The court ruled that all of Corvias' claims for damages was barred by the economic loss doctrine. The Court of Appeals reversed the grant of summary judgment on the issue of fire damage, finding that the fans were not an integral part of the house as a whole. But the panel did not address whether Corvias had an implied warranty claim covering whether the fans were inherently dangerous. Both defendants filed a petition for review, which was granted.

ISSUE:  (1) Recovery under the KPLA

HELD: The KPLA covers all product liability causes of action. That Act included liability for "damage to property", which shows that the Legislature intended to allow recovery for damage to any property, even the product itself. The Kansas economic loss doctrine does not preclude recovery for property damage within a product liability cause of action. Corvias' costs for fan replacement are undisputedly economic losses, and therefore not compensable under the KPLA. But the KPLA does not subsume all other legally viable causes of action for loss recovery. Corvias brought an action for unjust enrichment. The record is insufficient to show whether that claim can succeed, so the case is remanded.

STATUTE: K.S.A. 60-3302(c), -3302(d), -3302(d)(1)

 

Criminal

CRIMINAL THREAT—CONSTITUTION
STATE V. BOETTGER
DOUGLAS DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS REVERSED
NO. 115,387—OCTOBER 25, 2019
 

FACTS: One evening, Boettger was visiting with the employees of a convenience store. He was lamenting the fact that he had found his daughter's dog in a ditch after it had been shot. Boettger was upset that the sheriff's department would not investigate. Boettger told one employee that if he found the perpetrator they "might find themselves dead in a ditch somewhere." The employee who heard the remarks knew Boettger and his speaking style and was not concerned. Another employee, who knew Boettger very well, was closely related to a detective with the sheriff's department. Boettger, who was visibly angry, approached this man and said that he would "end up finding [his] dad in a ditch." The employee was concerned and ultimately called the police to report the incident. Boettger denied any intent to threaten or cause harm, but he was still convicted of one count of reckless criminal threat. Boettger appealed, but the Court of Appeals confirmed his convictions. Boettger's petition for review was granted.

ISSUE: (1) Whether K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad

HELD: Some tension can arise when the government attempts to criminalize true threats. An important inquiry centers on the speaker's intent to intimidate and cause fear. In order to be constitutional, the statute must require more than a purpose to communicate just threatening words. Instead, it must also require that the speaker wants the recipient to believe that the speaker intends to act violently—an intent to intimidate or convey a threat. K.S.A. 2018 Supp. 21-5415, which allows an individual to be punished for reckless conduct, potentially criminalizes protected speech and is facially overbroad. Boettger's conviction under that statute must be reversed.

STATUTES: U.S. Const. amend. I; K.S.A. 2018 Supp. 21-5415(a)(1)

 

FIRST-DEGREE MURDER—JURY INSTRUCTIONS
STATE V. DEAN
SEDGWICK DISTRICT COURT—AFFIRMED
NO. 116,568—OCTOBER 25, 2019

FACTS: Dean was accused of firing his weapon while at a crowded party in revenge for the death of his fellow gang member. After the shooting was over, Dean was charged with one count of premeditated murder, four counts of aggravated battery and one count of criminal possession of a firearm. During deliberations, the presiding juror brought in a personal notebook which contained notes that were taken outside of the trial. The district court dismissed this juror and questioned the rest of the panel, all of whom denied taking notes or seeing notes from another juror. As he was leaving, the removed panel member gave a partially completed verdict form to the bailiff. It is unknown what the form said, but after seeing it defense counsel moved for a mistrial, which was denied. Dean was convicted as charged. He appeals.

ISSUES: (1) Necessity of a mistrial, (2) cautionary instruction, (3) motion for new trial, (4) evidence of premeditation, (5) admissibility of evidence of gang affiliation

HELD: Because the partially completed verdict form is not in the record on appeal, there is no way to know its impact on the jury. Dean had the burden to designate a record adequate to show error. In that absence, he is not entitled to relief. A district court is not legally required to instruct the jury to view with caution the testimony of a noninformant witness who is potentially benefitting from the testimony. Defendant's cross-examination showed the witness' potential bias to the jury. The district court did not err by finding that evidence regarding the cooperating witness' arrangement was neither newly discovered nor material. And Dean's failure to provide the new evidence in the record on appeal precludes review. Premeditation involves forming the intent to kill beforehand. In this case, the State presented sufficient evidence of premeditation. The gang affiliation evidence presented at trial was relevant and not unduly prejudicial, especially in light of the mitigating instruction given by the district court.

STATUTES: K.S.A. 2018 Supp. 22-3412(c), -3501(l); K.S.A. 22-3423(1)(c), 60-401(b)

 

CRIMINAL THREAT—CONSTITUTION
STATE V. JOHNSON
MONTGOMERY DISTRICT COURT—COURT OF APPEALS IS REVERSED DISTRICT
COURT IS REVERSED, CASE REMANDED
NO. 116,453—OCTOBER 25, 2019

FACTS: Johnson's mother contacted law enforcement with claims that Johnson was abusing her. A deputy responded to her home and noticed signs of a struggle, but Johnson was not at the residence. A return visit occurred the next day after Johnson's mother claimed that he made statements in which he threatened to either harm or kill her. Johnson was charged with one count of criminal threat—for allegedly tearing a telephone off of the wall and threatening to burn down his mother's home and kill her. At trial, both Johnson's mother and wife testified that within their family it was common to threaten to kill each other, but that they never actually meant it. Johnson was also injured and in pain, causing frequent angry outbursts. A jury convicted Johnson of criminal threat. He appealed, and the Court of Appeals affirmed his conviction and Johnson's petition for review was granted.

ISSUES: (1) Sufficiency of the evidence, (2) constitutionality of K.S.A. 2018 Supp. 21-5415(a)(1)

HELD: The State charged Johnson with either intentionally or recklessly making a criminal threat. The jury was instructed on both mental states but was not asked to specify under which state Johnson was convicted. But the State presented sufficient evidence to convict Johnson under either theory. The government can only regulate "true threats." The "reckless disregard" provision of K.S.A. 2018 Supp. 21-5415(a)(1) encompasses more than true threats and thus potentially punishes constitutionally protected speech. It is unconstitutionally overbroad. Even though Johnson was potentially convicted for intentional behavior, the unconstitutionality of the reckless disregard provision is prejudicial enough that Johnson's conviction must be reversed.

DISSENT: (Stegall, J.) The majority is correct that K.S.A. 2018 Supp. 21-5415(a)(1) is unconstitutionally overbroad. But the error is not prejudicial under a modified harmlessness analysis, and his conviction should be affirmed.

STATUTE: K.S.A. 2018 Supp. 21-5202(c), -5415(a)(1)

Tags:  constitution  criminal threat  damages  Douglas District Court  first degree murder  Geary District Court  jury instructions  Montgomery District Court  product liability  Sedgwick District Court 

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November 21, 2018 Digests

Posted By Administration, Monday, November 26, 2018

Kansas Supreme Court

Attorney Discipline

ORDER OF INDEFINITE SUSPENSION
IN THE MATTER OF ROSIE M. QUINN
NO. 119,148—NOVEMBER 21, 2018

FACTS: Quinn was found to be in violation of KRPC 8.4(b) (committing a criminal act that reflects adversely on the lawyer's honesty or fitness). She was convicted of multiple federal felonies after failing to pay income taxes. Quinn's law license was temporarily suspended after she self-reported the convictions. While that disciplinary proceeding was pending, Quinn asked to have her status changed to disability inactive status. That request was granted, with the understanding that Quinn was required to obtain an independent mental health evaluation. Quinn failed to obtain that evaluation and as a result, her license was transferred back to a temporary suspension.

HEARING PANEL: The hearing panel noted Quinn's history of discipline and the nature of her convictions. The panel also cited Quinn's mental health issues and reputation in her community as mitigating factors. The disciplinary administrator's office recommended that Quinn be indefinitely suspended with the suspension made retroactive to three years prior to the date of the final hearing report. The hearing panel noted that Quinn presented compelling evidence of rehabilitation and relied heavily on the mitigating evidence in recommending that Quinn's license be suspended for three years, with that suspension made retroactive to October 5, 2011. The hearing panel believed that Quinn should be eligible for reinstatement without further proceedings.

HELD: The court adopted the hearing panel's findings and conclusions. The only question for the court to consider is whether Quinn should be required to undergo a reinstatement hearing before being allowed to return to practice. A majority of the court held that Quinn should be indefinitely suspended with an effective date of October 2011. Before being reinstated, Quinn must complete various tasks including a bar exam review course and continuing legal education hours. A minority of the court would have disbarred Quinn.

Civil

ADMINISTRATIVE LAW—TENURE
HARSAY V. UNIVERSITY OF KANSAS
DOUGLAS DISTRICT COURT—Affirmed
COURT OF APPEALS—REVERSED
NO. 114,292—NOVEMBER 21, 2018

FACTS: The University of Kansas hired Harsay to a tenure-track position in 2004. She began the tenure review process in 2009. Peer reviewers were hesitant to give unqualified recommendations for tenure; there were concerns about insufficient scholarship activities leading to an inability to secure funding. Nevertheless, the department-level committee recommended that Harsay receive tenure. The College Committee disagreed and voted to reject Harsay's application. That decision was ratified by the University Committee. Harsay appealed to the university but the chancellor upheld the decision to deny tenure. Harsay filed a timely petition for judicial review, but it was dismissed for failure to prosecute. Using the savings statute, Harsay refiled the action. The district court denied on the merits Harsay's challenge to the university's decision. The court of appeals reversed, noting inaccuracies in the College Committee's report and expressing concerns about the adequacy of the university's factual findings. The university's petition for review was granted.

ISSUES: (1) Savings statute; (2) substantial evidence

HELD: Provisions of the Code of Civil Procedure can apply to actions taken under the KJRA. And the plain language of K.S.A. 60-518 allows it to apply to any action. Although the reports of various tenure committees were short on details and contained errors, there is adequate support in the record as a whole for the ultimate decision to deny tenure to Harsay.

CONCURRENCE (Goering, D.J. assigned): There is substantial evidence in the record as a whole to support the university's decision on Harsay's tenure application. But the panel erred by finding that K.S.A. 60-518 can apply to cases brought under the KJRA.

STATUTES: K.S.A. 2017 Supp. 77-613, -621(c)(4), -621(c)(7), -621(c)(8), -621(d); K.S.A. 60-518

Criminal

constitutional law—criminal law—Fourth Amendment—statutes
state v. Evans
dickinson district court—affirmed and remanded
No. 119,458—November 21, 2018

FACTS: An officer conducted a warrantless search of Evans’ purse and wallet after an ambulance took Evans from auto accident scene. Evans was arrested and charged with drug offenses after officer found methamphetamine and drug paraphernalia in zippered pocket of the wallet. Evans filed motion to suppress, alleging the search violated the Fourth Amendment. State argued the warrantless search was valid under the plain-view exception and the officer’s administrative caretaking function of locating Evan’s driver’s license to complete an accident report. District court disagreed and granted the motion to suppress. State filed interlocutory appeal.

ISSUES: (1) Warrantless search—community caretaking function, (2) warrantless search— duty to complete accident report

HELD: District court’s judgment was affirmed. The caretaking role of law enforcement does not itself constitute an exception to the warrant requirement. Both Cady v. Dombrowski, 413 U.S. 433 (1973), and South Dakota v. Opperman, 428 U.S. 364 (1976), support caretaking/ inventory searches conducted under standard police procedures. Here, no evidence established the standard procedures of the police or county sheriff’s office. Accordingly, Dombrowski, Opperman and related cases do not support State’s contention that the search of Evan’s purse and wallet fits a well-delineated exception to the warrant requirement.

State v. Canaan, 265 Kan. 835 (1998), which relied on plain view and inventory search exceptions to the warrant requirement, did not create a new exception allowing a search simply because officers have a duty to complete the accident report. State failed to meet burden of establishing the inventory exception, and under facts in this case the drug evidence was not in plain view. Nor did the circumstances present an exigency or an emergency that required immediate verification of Evans’ identity or give rise to the emergency doctrine exception. Kansas statutes allow drivers a reasonable time to produce their own driver’s license, and legislature did not impose a duty on officers that would justify invading privacy guaranteed by Fourth Amendment.

STATUTES: K.S.A. 2017 Supp. 8-1604, -1611, -1611(a), -1611(a)(2), -1612, -1612(a), -1612(b), 22-3603; K.S.A. 8-244, 20-3018(c)

criminal law—criminal procedure—evidence—
jury instructions—prosecutors—statutes
state v. haygood
wyandotte district court—affirmed
No. 115,591—november 21, 2018

FACTS: A jury convicted Haygood of premeditated first-degree murder and criminal possession of a firearm. On appeal he claimed error in the admission of his long-term girlfriend’s testimony about prior domestic violence, and the denial of his request for jury instructions on the affirmative defense of self-defense and the lesser-included offense of involuntary manslaughter. Haygood also claimed the prosecutor, in closing argument, misstated the facts or law, argued facts not in evidence, commented on witness credibility, and attempted to shift the burden of guilty to the defendant.

ISSUES: (1) Admission of K.S.A. 60-455 evidence, (2) prosecutorial error in closing argument, (3) instructions on self-defense and involuntary manslaughter

HELD: Three-part test in State v. Gunby, 282 Kan. 39 (2006), is stated and applied, finding the trial court did not err in admitting the prior domestic violence evidence to show motive.

Prosecutor’s comments and arguments contained facts that were either placed in evidence or that were reasonably inferred from trial evidence. Although some statements were inarticulately phrased, prosecutor did not misstate the law. No burden-shifting was implied from State’s closing argument, and no merit to claim that prosecutor impermissibly accused Haygood of lying.

In light of K.S.A. 2017Supp. 21-5108(c), as amended in 2010, Haygood was entitled to an instruction on self-defense affirmative defense because his testimony was competent evidence that could allow a reasonable juror to conclude he was entitled to defend with deadly force. District court erred by denying Haygood’s request for an instruction on self-defense, but the error was harmless in this case. Likewise, even if an involuntary manslaughter lesser included offense instruction is assumed to be factually appropriate, the failure to give a lesser included offense instruction was harmless error.

CONCURRENCE (Rosen, J.)(joined by Nuss, C.J. and Stegall, J.): Concurs with the result but departs from majority’s reasoning regarding the self-defense instruction. Disagrees that a defendant’s solitary declaration that he or she committed a crime in self-defense will always satisfy the competent evidence standard described in K.S.A. 2017 Supp. 21-5108(c). Also disagrees with majority’s suggestion that the 2010 statutory provision meaningfully impacts this analysis. Under facts in this case, no rational fact-finder could reasonably conclude that Haygood acted in self-defense. Would find no error in trial court’s denial of a self-defense instruction.

STATUTES: K.S.A. 2017 Supp. 21-5108(c), -5222, -5405(a)(4); K.S.A. 21-5108

criminal procedure—jury instructions—statutes
state v. pulliam
wyandotte district court—affirmed
court of appeals—affirmed
No. 113,493—November 21, 12018

FACTS: Pulliam was convicted of voluntary manslaughter (of Eisdorfer), second-degree murder (of Burton), and criminal possession of a firearm. He appealed, claiming in part the jury should have been instructed on a theory of imperfect self-defense involuntary manslaughter as a lesser included crime for the charge of second-degree murder. Court of appeals affirmed, holding such an instruction was not factually appropriate because State v. Houston, 289 Kan. 252 (2009), required an unintentional killing for involuntary manslaughter, and there was no evidence Pulliam’s killing of Burton was unintentional. Pulliam’s petition for review granted on this one issue.

ISSUE: Jury instruction on lesser included offense of imperfect self-defense involuntary manslaughter

HELD: Court of appeals’ decision is affirmed, but on a different rationale. Pulliam’s jury instruction claim was reviewed for clear error in this case. Court of appeals’ decision relied on outdated law because Houston was based on an earlier version of the crime defining statute. The amended involuntary manslaughter statute and a new culpable mental states statute, K.S.A. 2017 Supp. 21-5202, govern this case. Conviction of involuntary manslaughter under an imperfect self-defense manslaughter theory pursuant to K.S.A. 2017 Supp. 21-5405(a)(4) does not require proof of a reckless or unintentional killing. On evidence in this case, a lesser included offense instruction on the imperfect self-defense form of involuntary manslaughter was legally and factually appropriate. District court erred in not giving it, but no clear error found. Pulliam’s second-degree murder conviction is affirmed.

STATUTES: K.S.A. 2017 Supp. 21-5109(b)(1), -5202(a)-(j), -5203(b), -5402(a)(2), -5405(a)(1)-(4), 22-3414(3); K.S.A. 21-3201, -3201(b)-(c), -3404(c), -3761(a)(2)

Tags:  administrative law  Attorney Discipline  constitutional law  Dickinson District  Douglas District  evidence  fourth amendment  jury instructions  statutes  tenure  Wyandotte District 

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