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May 29, 2015, Appellate Court Digests
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Kansas Supreme Court – Criminal



NO. 109,086 – MAY 29, 2015


FACTS: Following initial confusion about terms of plea agreement regarding his placement at Larned State Hospital, Godfrey entered guilty plea to first-degree felony murder and aggravated battery. On appeal he claimed State violated the plea agreement and denied him due process because the agreement was ambiguous and should have been interpreted to impose Godfrey’s original understanding that he would be sent to Larned "in lieu of sentencing.”


ISSUES: Preserving issue for review


HELD: Godfrey’s claim, raised for first time on appeal, is not considered because he failed to preserve it for appellate review. He neither filed motion to withdraw his plea after the initial confusion, nor did he object to State’s recommendation at sentencing. Kansas Supreme Court Rule 6.02a requires an appellant raising a constitutional issue for first time on appeal to affirmatively invoke and argue an exception to the general rule that such claims may not be raised for the first time on appeal. Failure to satisfy Rule 6.02(a)(5) in this respect amounts to abandonment of the constitutional claim. Here, Godfrey makes no effort to explain why review of his unpreserved constitutional issue is warranted. Admonition in State v. Williams, 298 Kan. 1075 (2014), is applied.


STATUTES: K.S.A. 22-3430

Kansas Court of Appeals – Civil




NO. 110,768 – MAY 29, 2015


FACTS: Five of Blanche Area's seven children agreed to lend her money in 1995 to build a home in Horton and Area signed a promissory note and mortgage to repay the loan. Five years later Area moved into an assisted living facility. In 2011, Area signed a quitclaim deed where she and her son Jack were named as joint tenants with right of survivorship. Area died shortly thereafter. The State Department of Health and Environment's Division of Health Care Finance filed a petition to open Area's estate to recoup nearly $33,000 in Medicaid assistance and Jack also filed a claim alleging he was one of the holders of the promissory note and was due $105,000. The administrator opposed the claim based on statute of limitations. The property was sold at a private sale for $110,000 and the children petitioned the court as mortgagees in possession and to use the proceeds to pay off the unpaid note. A magistrate judge granted the petition to pay the proceeds to the five children. In an appeal, the district court judge affirmed and in a later motion to reconsider also held the administrator appointed by the State lacked standing to appeal.


ISSUES: (1) Estates, (2) standing, and (3) mortgages and notes


HELD: Court held the administrator appointed by the State did have standing to challenge the claim and that the administrator properly asserted the statute of limitations as a defense against the enforceability of the note and mortgage lien. Court stated that Kansas is a "lien theory" jurisdiction. In a lien theory jurisdiction, the five children cannot simply claim to possess the real estate in order to protect their interests in the note and mortgage—they must take some legal action to protect their lien. Under Kansas law, a mortgage is not a conveyance of an interest in land. The mortgagee acquires no estate whatever in the property, either before or after any contract condition is broken, but acquires only a lien securing the indebtedness described in the instrument. The five children here had taken no legal action to enforce their lien until they filed their claim in their mother's estate. Because the statute of limitations had expired, the note and mortgage were unenforceable. Court held if there is no enforceable mortgage lien, these five children cannot be mortgagees in possession. Court stated it is a long-standing principle that equity will not lie when a legal remedy exists. Court held the statute of limitations was applicable and provided a legal remedy for the five children to take action on the note within the statutory period of 5 years. The five children failed to do so, and the district court could not disregard the statute of limitations based on unidentified equitable consideration. The district court erred in affirming the magistrate's decision that the five children were entitled to payment. The statute of limitations was applicable to the note and mortgage, the note and mortgage were unenforceable, and the five children were not mortgagees in possession and their claims should be denied.


STATUTES: K.S.A. 39-709; K.S.A. 59-1301, -1401; and K.S.A. 60-511, -1002





NO. 111,319 – MAY 29, 2015


FACTS: Kansas Supreme Court September 24, 2008, mandate vacated Scaife’s conviction for first degree murder, and affirmed all remaining convictions. 286 Kan. 614 (2008). On remand, Scaife pled guilty to voluntary manslaughter. Sentence entered January 15, 2009, with no direct appeal pursuant to the plea agreement. Scaife filed K.S.A. 60-1507 motion January 6, 2010, alleging ineffective assistance of trial and replacement attorneys, and claiming fatal variance between the information and evidence produced at trial. District court summarily dismissed the motion as time barred by the 1-year deadline in K.S.A. 60-1507(f). Scaife appealed, arguing he had until September 29, 2010 (14 days after sentence imposed for voluntary manslaughter conviction) to file his 60-1507 motion.


ISSUES: K.S.A. 60-1507(f) in multiple conviction cases


HELD: District court’s summary dismissal of Scaife’s K.S.A. 60-1507 motion, filed January 6, 2010, is affirmed. Citing enactment of Kansas Sentencing Guidelines Act, State v. Guder, 293 Kan. 763 (2012), abrogated longstanding rule that multiple sentences from multiple counts in a single case were considered a single sentence. Pursuant to Baker v. State, 297 Kan. 486 (2013), and Supreme Court Rule 183(c), appellate jurisdiction on Scaife’s affirmed convictions and sentences terminated when mandate issued September 24, 2008. Scaife became a prisoner in custody under a sentence, and had until September 24, 2009, to file K.S.A. 60-1507 motion to collaterally challenge the affirmed convictions and sentences. With respect to the voluntary manslaughter conviction, his allegations of error impacting the first-degree murder conviction were cured when Kansas Supreme Court vacated that conviction and remanded for new trial.


STATUTES: K.S.A. 2014 Supp. 22-3608(c); and K.S.A. 60-1507, -1507(a), -1507(b), -1507(f), -1507(f)(1), -1507(f)(1)(i), -1507(f)(1)(ii)





NO. 111,016 – MAY 29, 2015


FACTS: After the death of Shawn Ney (Shawn), his father, Michael Ney (Michael), filed a claim under a life insurance contract naming Shawn as the insured and Michael as the sole beneficiary. Farm Bureau Life Insurance Co. (FBL) denied payment of the death benefit under the policy. Michael then filed a lawsuit seeking the policy value of the death benefit. The district court granted summary judgment in favor of FBL. On appeal from the court's judgment, Michael argues the district court erroneously relied on K.S.A. 40-420(9) to find that FBL could contest payment of the death benefit under a life insurance policy despite the fact that the policy did not affirmatively authorize FBL to do so. Michael also argues on appeal that the misrepresentations made by his son in the application for reinstatement of the lapsed policy were not material under K.S.A. 40-418.


ISSUES: Life insurance


HELD: Court held the plain and unambiguous language of K.S.A. 40-420 requires insurance contracts delivered in Kansas to allow for contestability after reinstatement with some limitations. Court held FBL was within its authority to contest payment under the Policy based on allegations of fraud and misrepresentation of material fact pertaining to reinstatement because Shawn died within two years of the date the Policy was reinstated. However, court held there was no dispute as to any fact necessary to establish all the elements of common-law fraudulent misrepresentation. There was no dispute that Shawn made untrue statements of fact by representing in his application for reinstatement that he had not been examined or treated by any physician since the Policy was originally issued. He also knew they were untrue, as he had experienced several visits to doctors since the Policy was originally issued. These representations were made for the purpose of providing evidence of his insurability and with the knowledge that FBL may rely on them. Court stated this establishes, at the very least, a reckless disregard for the truth. Court concluded there was no dispute as to any fact necessary to establish the elements of common-law fraudulent misrepresentation and FBL was entitled to judgment as a matter of law.


STATUTES: K.S.A. 40-418, -420