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October 23, 2015, Appellate Court Digests
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Kansas Supreme Court – Attorney Discipline

NO. 113,367 – OCTOBER 23, 2015

FACTS: This is an original proceeding in discipline filed by the office of the Disciplinary Administrator against the respondent, Renkemeyer, of Overland Park, an attorney admitted to the practice of law in Kansas in 1997. Renkemeyer's ethical problems revolved around the sale and subsequent failure of a trucking company started by Renkemeyer. There facts are detailed in Monarch Transport LLC v. FKMT LLC, Scot Crader, and Troy Renkemeyer, No. 105,487 (Kan. Ct. App., August 17, 2012).

DISCIPLINARY ADMINISTRATOR: On June 30, 2014, the Office of the Disciplinary Administrator filed a formal complaint against the respondent, alleging violations of the Kansas Rules of Professional Conduct (KRPC). Arguing that the respondent engaged in intentional conduct, the disciplinary administrator recommended the respondent be suspended from the practice of law for a period of one year.

HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on October 8, 2014, where the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(c) (2014 Kan. Ct. R. Annot. 680) (engaging in conduct involving misrepresentation) and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). The hearing panel unanimously recommended that the respondent be suspended from the practice of law for a period of 6 months. 

HELD: Court found the evidence before the hearing panel was clear and convincing of the alleged misconduct. Court stated that when respondent spoke for himself at the hearing before this court, he asserted that he had not thought of himself as a fiduciary in the trucking company transaction, that he had been a passive investor who thought of himself as a mere seller, and that he had left the details of receivables and their correct distribution to his fellow seller. Court found these arguments were evidence that respondent does not have a firm grasp on the nature and wrongfulness of his ethical lapses, and Court was particularly troubled because of his substantial training and experience not only as a tax lawyer but also as a certified public accountant. Court found no hesitance in ruling unanimously that a one-year suspension from the date of the filing of this opinion is the appropriate discipline for respondent.

Kansas Court of Appeals – Civil

NO. 112,521 – OCTOBER 23, 2015

 FACTS: American Highway Technology and its insurance carrier appeal from an order awarding permanent-total-disability compensation to its employee, Wimp. An employee qualifies for that compensation when an on-the-job injury has left "the employee . . . completely and permanently incapable of engaging in any type of substantial and gainful employment." K.S.A. 44-510c(a)(2). American argues that in this case, Wimp's inability to find other work was largely due to his limited intellectual ability and, thus, American should not be responsible for his inability to find work.

ISSUES: (1) Workers compensation and (2) gainful employment

HELD: Court stated that K.S.A. 44-510c(a)(2) considers the ability of "the employee" who was injured to obtain gainful employment, not the ability of Stephen Hawking or even the ability of the theoretical average person. Because Wimp suffered parallel injuries to both arms, the Workers Compensation Board properly applied a rebuttable presumption of permanent total disability. Court also stated that Wimp had always performed manual labor, had limited ability to do other work, and had limited or no ability to do manual labor after his work injury. Court held substantial evidence supported the Workers Compensation Board's conclusion that American did not rebut the statutory presumption of permanent total disability and Wimp was left incapable of engaging in gainful employment due to his on-the-job injuries.

STATUTES: K.S.A. 44-510c, -556; and K.S.A. 77-201, -621

Kansas Court of Appeals – Criminal

NO. 112,000 – OCTOBER 23, 2015

FACTS: State charged Evans with aggravated battery, based on Evans stabbing Pena with sword in Evans’ garage following friendly wrestling match. At pretrial hearing on Evans’ motions for self-defense immunity, K.S.A. 21-5231, district court weighed the evidence and dismissed the complaint, finding Evans was immune from prosecution because State failed to establish probable cause that Evans’ use of force in defending himself was unlawful. State appealed, arguing district court improperly weighed conflicting evidence instead of viewing evidence in light most favorable to State, and erred in granting immunity because evidence does not support finding that Evans’ use of deadly force was objectively reasonable.

ISSUES: Self-defense immunity

HELD: K.S.A. 2014 Supp. 21-5231 and related self-defense statutes are interpreted. In determining probable cause standard for immunity from prosecution, State bears burden of proving the defendant’s use of force was not justified. In ruling on motion for self-defense immunity, district court should have resolved all facts and evidentiary inferences in favor of the State, the party opposing this dispositive motion. Majority adopts reasoning in State v. Hardy, 51 Kan.App.2d 296 (2015), pet. for rev. filed April 22, 2015, the only case thus far to address the process necessary to resolve immunity claims. Here, the conflicting evidence on Evans’ motion, when not viewed in any party’s favor, could have supported a ruling for either party. But when viewed in favor of the State, the evidence was sufficient to find probable cause to rebut Evans’ claim of immunity and submit case to jury. District court erred in granting self-defense immunity to Evans and dismissing the aggravated battery charge. Reversed and remanded with directions to reinstate the complaint.

DISSENT (Arnold-Burger, J.): Would affirm district court’s dismissal of charges against Evans. Disagrees with majority’s preliminary hearing analogy and conclusion that district court must view evidence in a statutory immunity hearing in light most favorable to the State. And even if majority is correct regarding the applicable procedure, district court in this case correctly concluded the State failed to meet its burden. Use of a preliminary hearing analogy can render immunity statute meaningless. Differences between immunity and an immunity defense are discussed. Consistent with rights set forth in the statute, the judge must be able to consider and weigh evidence as a whole, with no deference to prosecution’s position.

STATUTES: K.S.A. 2014 Supp. 21-5108(c), 5205, -5206, -5207, -5208, 5220 et seq., -5222, -5222(b), -5222(c), -5223, -5224(a)(1)(A), -5230, -5231, -5231(b), -5231(c), -5413(b)(1)(A); K.S.A. 2014 Supp. 22-2902(3); and K.S.A. 22-3216(2)


NO. 112,444 – OCTOBER 23, 2015

FACTS: Meyer entered no contest pleas to aggravated criminal sodomy and aggravated indecent liberties charges as part of plea agreement in which State promised to depart to sentencing grid and recommend consecutive mitigated sentences. At sentencing hearing, State breached plea agreement by recommending aggravated consecutive sentences. District court departed to sentencing grid, denied Meyer’s departure motion for concurrent 75-month sentences, disagreed with State’s recommendation for aggravated consecutive sentences, and imposed concurrent mitigated sentences of 147 and 55 months. Meyer appealed sentence, specifically the issue of lifetime post release and lifetime electronic monitoring. For first time on appeal, he challenges district court’s decision on his departure motion, and argues the State violated the plea agreement. State admits that violation but claims the error was harmless in this this. State also argues there is no appellate jurisdiction to consider issues not identified in notice of appeal, and breach of plea agreement issue was not preserved below.

ISSUES: (1) Appellate jurisdiction and (2) breach of plea agreement 

HELD: Meyer’s appeal is considered. The two claims not stated in the notice of appeal concern only the sentencing order at issue in the notice of appeal, and State alleges no surprise or prejudice. Breach of plea agreement issue is considered for first time on appeal because it satisfies exception for addressing issue to prevent denial of fundamental rights.

State’s breach of the plea agreement to recommend aggravated sentences rather than mitigated ones violated Meyer’s right to due process. This error was not harmless where State failed to demonstrate beyond a reasonable doubt that Meyer’s decision to enter into the agreement was not influenced by the promise to recommend mitigated sentences. Sentence is vacated. Case is remanded for resentencing before a different judge with instruction that State specifically adhere to plea agreement.

STATUTES: K.S.A. 2014 Supp. 22-3602(a); and K.S.A. 2014 Supp. 60-2103(a)