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  • 07 Dec 2018 3:50 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Case No. 113,888: State of Kansas v. Lawrence C. Hubbard

    Archived oral argument video

    A divided Supreme Court ruled that the smell of raw marijuana coming from a residence, when combined with other circumstances, can supply probable cause to support a residential search by police. This ruling is the first time the court addressed the issue and settled a conflict between Court of Appeals decisions.

    The Supreme Court affirmed Hubbard's misdemeanor convictions of possession of marijuana and possession of drug paraphernalia in Douglas County District Court Police officers testified they smelled the strong odor of raw marijuana while standing at Hubbard's apartment door questioning him about another matter. They directed the occupants to leave the apartment while they applied for a search warrant. The officers conducted a security sweep to preserve evidence, and then waited for a judge to issue the warrant. It was during that search they found 25.07 grams of raw marijuana in a Tupperware container inside a safe, a small amount of marijuana on a partially burnt cigarillo in the living room, and several bongs, which were clean and had no marijuana residue.

    Hubbard challenged the officers' ability to smell raw marijuana at his doorway. The district court disagreed, noting the officers' experience in detecting the odor. Hubbard also argued the officers needed to be qualified as expert witnesses to give their opinions about what they smelled.

    In affirming the conviction, the Supreme Court split 4-3. The majority noted Kansas has recognized for several years that the odor of marijuana detected by an officer trained and experienced in identifying the smell provided probable cause to search a vehicle. In applying those same principles to a residential search, the majority noted an officer's testimony about smelling the odor of an illegal substance was simply part of the circumstances that a court considers when deciding if there is probable cause to believe a crime is being committed or that the residence contains evidence. In rejecting the argument that officers needed to be qualified as experts, the majority opinion, written by Justice Dan Biles, observed, "We are not dealing with sommeliers trying to identify a white wine as a Loire Valley Chenin Blanc." 

    The dissent, written by Justice Carol Beier, and joined by Justices Eric Rosen and Lee Johnson, agreed with Hubbard that the officers needed to be qualified as expert witnesses.

    Case No. 116,398: State of Kansas v. Tyler Regelman

    Archived oral argument video

    The Supreme Court reversed a Geary County District Court order suppressing drug-related evidence seized during a residential search based on a police officer's testimony about smelling raw marijuana. The court held the testimony about the odor provided probable cause under the case's facts to justify a search warrant. This decision is a companion case to another decision released today in which court made a similar ruling.

    Regelman was charged with possession of marijuana with intent to distribute within 1,000 feet of a school zone, possession of drug paraphernalia, and possession of marijuana. An officer testified he noticed a raw marijuana smell while standing at the front door to Regelman's house. The district court suppressed the drug-related evidence by ruling the smell of marijuana did not provide probable cause for a search. A Court of Appeals panel agreed, but the Supreme Court reversed.

    The case will return to Geary County District Court for further proceedings. Justices Lee Johnson and Eric Rosen dissented.  

    Appeal No. 112,959: State of Kansas v. David E. Parker Jr.

    Archived oral argument video

    The Supreme Court agreed Wichita police did not illegally seize a car while waiting for a drug dog search after the driver was pulled over and arrested for a traffic violation. The court concluded the State properly used cocaine found within the vehicle to convict Parker with possession of the drug.

    In addition to cocaine possession, a Sedgwick County jury convicted Parker of fleeing or attempting to elude a police officer, driving with a suspended license, failure to signal while turning, and driving with no head lamps. The Court of Appeals rejected Parker's challenges to the admission of the drug evidence, the sufficiency of evidence for eluding the police officer, and the use of Parker's prior convictions to enhance his sentence. A majority of the Supreme Court agreed with those rulings. Justice Lee Johnson dissented on the vehicle seizure issue and would have reversed the drug conviction.

    The Court of Appeals remanded the case to Sedgwick County District Court to consider whether the prosecutor used peremptory strikes to remove the only potential juror of Parker's race from the jury pool. That ruling was not before the Supreme Court. 
  • 04 Dec 2018 10:38 AM | Tiffany Fisher (Administrator)

    The Topeka Bar Association and the Topeka Police Department invite attorneys to stock Eisenhower and Chase Middle Schools with professional clothing for their Tie Thursdays Program.

    Topeka Police Officers will be at this Friday's December Bar Luncheon to discuss the daily work they do with at-risk youth by mentoring them and providing life skills. One of the initiatives in this program is “Tie Thursday”.  This initiative helps the young men and women who the officers work with to develop their leadership, critical thinking skills and achieve academic excellence by dressing for success.  On Thursdays when the youth attend school, they wear a dress shirt, tie or professional clothing which allows them to also work on their self-esteem.   

    “It’s amazing to see how much dressing professionally increases the youth’s confidence and self-esteem,” Chief Cochran said.  “There is always a great need for more ties, dress shirts and professional clothing for these young men and women.  We are anxious to partner with attorneys in Topeka to support this fun campaign.”

    The Topeka Police Department partnered with Eisenhower Middle School to establish the Our Kids Program (OK Program).  The goal of the program is to reduce the high rates of incarceration and homicide among at-risk youth.  Because of the success of the OK Program at Eisenhower Middle School, the Topeka Police Department expanded its Youth Outreach Program to Chase Middle School in 2018.

    New or gently used dressed shirts, ties and professional clothing or monetary donations may be dropped off at the Topeka Bar Association (700 SW Jackson Street, Suite 209) through the month of December or brought to the TBA December Bar luncheon on Friday, December 7th at 11:30 am. at the Capitol Plaza Hotel in the Emerald Ballroom.  Please contact Tiffany Fisher at 785.233.3945 for more information about making arrangements for a specific donation.
  • 30 Nov 2018 1:19 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Case No. 119,111: In the Matter of Brandon W. Deines

    Archived oral argument video

    The Supreme Court indefinitely suspended Deines' license to practice law for multiple violations of the Kansas Rules of Professional Conduct, based on a series of complaints alleging lack of diligence and neglect of duties to clients. Deines, of Lawrence, did not contest the allegations.

    Case No. 117,910: In the Matter of David P. Crandall

    Archived oral argument video

    In a per curiam opinion, the Supreme Court disciplined Crandall, of Leawood, by imposing a six-month suspension of his license to practice law. The court imposed this discipline for violations of Kansas Rules of Professional Conduct concerning competence, diligence, communication, unreasonable fees, concurrent conflicts of interest, and conduct prejudicial to the administration of justice.

    Appeal No. 108,394: State of Kansas v. Isaac D. Williams Jr.

    Archived oral argument video

    The Supreme Court affirmed Williams' convictions in Sedgwick County for aggravated burglary, aggravated battery, aggravated assault, and domestic battery following a break-in and altercation at his girlfriend's home. He raised six issues before on appeal and the court rejected his arguments, holding: 1) sufficient evidence supported Williams' aggravated burglary conviction; 2) Williams' convictions for aggravated burglary and domestic battery were not mutually exclusive; 3) the district court did not improperly instruct the jury on aggravated assault; 4) the district court should have instructed the jury on assault as a lesser-included offense of aggravated assault and on battery as a lesser-included offense of aggravated battery, but neither error was clearly erroneous and, therefore, do not warrant reversal of Williams' convictions; 5) Kansas' aggravated battery statute, K.S.A. 21-5413(b)(1)(B), is not unconstitutionally vague; and 6) cumulative error did not deprive Williams of a fair trial.

    Appeal No. 115,038: State of Kansas v. Sherrick A. Sims

    Archived oral argument video

    In an opinion written by Justice Caleb Stegall, the Supreme Court held that Sims' jury instructions were legally correct and affirmed his premeditation murder conviction. At trial, the Wyandotte County District Court instructed the jury on the lesser-included offenses of premeditated murder sequentially and in descending order of severity. On appeal, Sims claimed the instructions were legally erroneous because they did not permit the jury to consider imperfect self-defense voluntary manslaughter simultaneously with premeditated first-degree murder and intentional second-degree murder. The Supreme Court disagreed, holding that a district court is not required to instruct a jury to consider a lesser-included homicide offense simultaneously with any greater homicide offense, overruling State v. Graham, 275 Kan. 831, 69 P.3d 563 (2003). Justice Beier, joined by Justices Luckert and Johnson, concurred in the result but disagreed with the overruling of Graham.

    Appeal No. 111,444: State of Kansas v. Daron Ingham

    Archived oral argument video 

    The Supreme Court upheld the Ingham's Reno County conviction on one count of possession or use of a commercial explosive. Ingham raised several arguments asserting the State used prejudicial language in describing the explosive, that a witness for the State improperly testified about a legal conclusion, and that the instructions given to the jury were either insufficient or improperly directed the jury to a specific conclusion. The Court of Appeals affirmed, and, on discretionary review, the Supreme Court affirmed the district court and the Court of Appeals. In a divided opinion, Justice Eric Rosen, writing for the court, concluded that any errors were harmless. Justices Nuss, Biles, and Stegall concurred in separate opinions. Justice Stegall suggested possible constitutional concerns with the statute under which Ingham was convicted but noted that the issue was not argued by the parties. A minority of the court would have found cumulative prejudicial errors in the way the case was presented to the jury and in the way the jury was instructed.

    Appeal No. 117,341: State of Kansas v. Terry Ray Hayes 

    Summary calendar; no oral agument

    Hayes' Johnson County murder case returned to the Supreme Court for a second time. Previously, a jury convicted Hayes of premeditated first-degree murder for the shooting death of his estranged wife, and the sentencing judge imposed the enhanced sentence of life without the possibility of parole for 50 years (hard-50 sentence). On direct appeal, the Supreme Court affirmed Hayes' murder conviction but remanded to the trial court for resentencing because Kansas' statutory scheme for imposing the hard-50 sentence violated Hayes' constitutional right to a jury trial. On remand, the district court applied intervening curative legislation to again impose a hard-50 sentence. In this appeal, the Supreme Court rejected Hayes' challenge to his new sentence, holding retroactive application of the new hard-50 sentencing scheme did not violate the constitutional prohibition on ex post facto laws.

    Appeal No. 117,322: State of Kansas v. Jerry D. Rice 

    Summary calendar; no oral agument

    The Supreme Court reversed the Wyandotte County District Court and remanded Rice's case for consideration of possibly ordering probation on the record during resentencing in this pre-Kansas Sentencing Guidelines Act case. Rice argued the resentencing court should have ordered a new presentence investigation report and it mistakenly stated it did not have authority to grant him probation. The Supreme Court unanimously held that Rice was not prejudiced by denial of his request for a new presentence investigation report. But, the court found the sentencing court abused its discretion by not understanding its own authority to consider probation. Accordingly, the court reversed and remanded for the sentencing court to exercise its discretion regarding probation on the record. 

  • 19 Nov 2018 1:48 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision on November 16:

    Appeal Nos. 115,651 and 116,652: State of Kansas v. Kayla Leeann Martin

    Summary calendar; no oral argument

    The Supreme Court held that Leavenworth County District Court erred in denying Martin her statutory right to a restitution hearing. The court reversed and remanded for a restitution hearing to establish the total amount of damages caused by Martin's crimes.

  • 26 Oct 2018 10:06 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    The first decision is for a case argued before the Supreme Court at its September 24 special session at Manhattan High School.   

    Appeal No. 116,690: State of Kansas v. Lee Edward Williams

    Archived oral argument video

    The Supreme Court upheld Williams' first-degree premediated murder conviction for the 2013 killing of Tysha Carvin during a domestic dispute in Wyandotte County. Williams claimed the prosecutor gave personal opinions about Williams' credibility, challenged potential jurors for racially discriminatory reasons, and used overly gruesome autopsy photographs to inflame the jury. The court rejected each argument.

    Concerning the first matter, Williams asserted his gun simply went off during a struggle, which the prosecutor characterized at one point during closing argument as "fabricated," noting the gun fired seven times.

    In a unanimous decision written by Justice Dan Biles, the court noted the prosecutor carefully detailed the evidence that illustrated why Williams' theory was infeasible.

    "In Williams' case, the prosecutor's statements about Williams' trustworthiness were within proper bounds," Biles wrote, "although words like 'fabricated' elevate the need for clarity in a prosecutor's remarks to tie the point being made to the evidence."

    As to the other issues, the court held the trial judge did not abuse his discretion in rejecting Williams' arguments about the State's reasons for challenging the potential jurors and in allowing the five photographs into evidence.

    Appeal No. 113,291: Daniel Becker v. The Bar Plan Mutual Insurance Company 

    Archived oral argument video

    The Supreme Court reversed the Johnson County District Court's grant of summary judgment to The Bar Plan and remanded with directions. In this insurance coverage dispute, Becker asserted the doctrine of estoppel applied to prevent The Bar Plan from denying coverage of his claim. In a per curiam decision, the court held that an insurer that undertakes a defense of the insured without adequately reserving its rights to later disclaim coverage may later be estopped from disclaiming coverage if the insured detrimentally relied on the insurer's defense. But in this case, the question of whether the reservation of rights was adequate was a factual question and therefore not appropriate for summary judgment. The court reversed summary judgment and remanded for further fact finding on whether the timeliness of The Bar Plan's reservation of rights bars Becker's claim of estoppel.

    Appeal No. 117,270: State of Kansas v. Brent L. Alford

    Summary calendar; no oral argument 

    The Supreme Court affirmed the Sedgwick County District Court's summary denial of Alford's motion to correct illegal sentence. Alford argued his hard-40 sentence was illegal because the jury considered inadmissible hearsay evidence at sentencing and the court erroneously instructed the jury. The court unanimously rejected both of Alford's claims. It held that Alford's sentence was not illegal because it conformed to the applicable statutory provisions in both character and term of authorized punishment. Accordingly, the court affirmed the district court's decision

    Kansas Court of Appeals decisions released today


  • 18 Oct 2018 9:07 AM | Tiffany Fisher (Administrator)

    Kansas Supreme Court accepting comment on proposed amendments to rules governing Commission on Judicial Qualifications

    The Kansas Supreme Court is accepting public comment on proposed changes to Rules 602 through 627 relating to complaints against judges.

    Through the proposed amendments, the court seeks to create a clearer and more comprehensive complaint process for the benefit of both complainants and judges.

    The court will accept comment until 5 p.m. Monday, December 17, 2018. Comment may be made by email to rulenotice@kscourts.org with "Rules 602-627" in the subject line.

    The proposed amended rules ares available for review on the Kansas Supreme Court website at www.kscourts.org under the heading What's New.

    Rules 602 through 627 govern the Commission on Judicial Qualifications and its role helping the Supreme Court exercise its responsibility in judicial disciplinary matters. The Supreme Court created the commission in 1974 under authority granted by Article 3 of the Kansas Constitution.

    Judges are guided by the Kansas Code of Judicial Conduct, which establishes standards for ethical conduct by judges and judicial candidates. The code's guidance is to help judges maintain the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary procedures

  • 12 Oct 2018 10:56 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decision today:

    No. 118,992: In re the Matter of Michael J. Studtmann          

    Archived oral argument video

    In a per curiam opinion, the Supreme Court disciplined Michael J. Studtmann, Wichita, by published censure. The court further ordered Studtmann to revise his proposed engagement letter and fully cooperate with a disciplinary administrator's audit of his trust account. The court imposed this discipline for violations of Kansas Rules of Professional Conduct concerning the scope of representation, fees, conflict of interest, accepting compensation for representation of a client from someone other than the client, and termination of the representation.

    Kansas Court of Appeals decisions released today.

  • 05 Oct 2018 10:47 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 117,723: In the Matter of the Adoption of C.L.                                     

    Archived oral argument video

    The Supreme Court reversed a Wyandotte County District Court order terminating a natural father's parental rights, saying that a natural father "must have had a real-world opportunity to take on his obligation under the circumstances presented." The high court ordered the lower court to expedite a custodial transition to unite the father with the now 2-year-old boy. 

    The case arose after the mother, who said she did not know she was pregnant until the day she gave birth, immediately put the newborn up for adoption through Kansas Children's Service League. A KCSL social work supervisor contacted the person who the mother thought was the child's father to inform him of the pregnancy and birth. "This news shocked him," the court's decision noted.

    A few days later, the father filed a paternity action in Shawnee County District Court to establish paternity, his support obligations, and an order directing that he be the residential parent. But that action was stayed in favor of the Wyandotte County litigation, which the prospective adoptive parents filed the day before the Shawnee County paternity suit. The dispute in Wyandotte County centered on whether the father made reasonable efforts to support or communicate with the child under the unusual circumstances presented. 

    In reversing the lower courts, the Supreme Court noted "a series of hurdles" were placed between the father and his child "to increase the likelihood of a successful adoption." The court added, "Termination of parental rights should not be determined by which side schemes to be shrewder or more strategic."

    Appeal No. 115,739: State of Kansas v. Lawson J. Weekes 

    Summary calendar; no oral argument

    The Supreme Court reversed the Court of Appeals decision dismissing Weekes' appeal for lack of appellate jurisdiction and remanded to the Court of Appeals to consider the merits of Weekes' argument that the district court erred in failing to modify Weekes' original sentence after revoking his probation.

    Appeal No. 116,710: State of Kansas v. Anthony Michael Anderson 

    Archived oral argument video

    The Supreme Court affirmed Anderson's Bourbon County convictions of child abuse and felony murder in a shaken baby case involving the death of a 6-month-old child left alone in Anderson's care. The court rejected Anderson's argument that the Bourbon County District Court erred in instructing the jury. Further, the court held that even assuming that the district court erred in allowing a witness to testify about Anderson's prior aggression towards the child, this alleged error was harmless because another witnesses testified to the same effect without objection in the trial court. The court also found three instances of prosecutorial error during closing argument but held that they did not deny Anderson a fair trial. Finally, the court held that the cumulative effect of prosecutorial error and the alleged erroneous witness testimony did not deny Anderson a fair trial.

    Appeal No. 115,377: State of Kansas v. Awnterio Dwan Lowery 

    Archived oral argument video

    The Supreme Court affirmed Lowery's convictions for the premeditated first-degree murder of Tiffany Davenport-Ray, the attempted premeditated first-degree murder of Melvin Ray, criminal discharge of a firearm at an occupied dwelling, and drug crimes. Lowery's homicide convictions emanated from a shooting between two vehicles travelling down Kansas Avenue in Topeka, Kansas. 

    The court rejected Lowery's challenges to sufficiency of the evidence, the voluntariness of his statements to law enforcement, and to the admission of certain testimony under the law on cross-examination and hearsay. The court declined to review Lowery's challenge to a jury instruction because Lowery invited any error that may have been present. 

    The court found three instances of prosecutorial error; found a violation of Lowery's statutory right to be present at a motion hearing; and found that the district court erred in refusing to redact portions of a video recording of Lowery's law enforcement interview admitted into evidence at trial. The court held that these errors, individually and cumulatively, did not require reversal of Lowery's convictions.

    Appeal No. 114,373: State of Kansas v. Martin K. Miller 

    Archived oral argument video

    A majority of the Supreme Court affirmed Miller's Douglas Country jury conviction on retrial for the premediated first-degree murder of his wife, Mary Miller. Miller was first convicted of his wife's murder in 2005, and that jury verdict was affirmed by the Supreme Court. In 2012, the Court of Appeals granted Miller's motion for postconviction relief and ordered a new trial. The Supreme Court affirmed the Court of Appeals decision to order a new trial. Upon retrial, the new jury also convicted Miller of premeditated first-degree murder, and, again, he appealed to the Supreme Court. 

    In his appeal of the retrial, the court held that the district court's denial of Miller's motion for a change of venue based on publicity surrounding his first trial, and corresponding pretrial publicity on retrial, did not deny Miller his constitutional right to a trial by an impartial jury. The court further assumed without deciding that the district court erroneously denied a defense for-cause challenge to a prospective juror, and held this assumed error did not require reversal because the defense had the opportunity to cure it with a peremptory challenge. 

    The court also rejected Miller's claim that the district court erred in refusing to bifurcate his trial into two phases so that the jury would not be influenced by evidence of motive, i.e., his extramarital affair, when determining whether Mary was, in fact killed. Additionally, the court held Miller failed to show that the district court's instruction to the jury regarding evidence of Miller's extramarital affair and access to dating websites was erroneous because the instruction limited use of this evidence to determining Miller's motive and intent. 

    The court also held that the district court did not abuse its discretion in refusing to disqualify the entire Douglas County District Attorney's Office from prosecuting the case based on Miller's allegation of a conflict of interest because Miller's son (a State witness) lived rent-free with an Assistant Douglas County District Attorney, who was not participating in Miller's trial. The court agreed with the district court that the safeguards put in place were sufficient to assure that Miller was not prejudiced by the living arrangement. The court further held that the district court did not abuse its discretion in refusing to disqualify the District Attorney's Office as a remedy for the office's failure to notify the defense of a day planner found in an airport parking lot that contained attorney-client privileged information involving Miller's defense. The court reasoned that the District Attorney's Office's handling of the planner was unprofessional but there was no showing of prejudice to the defense because the information in the planner aligned with Miller's testimony at his first trial. 

    The court rejected Miller's argument that the trial judge committed misconduct when ruling on objections, finding that the judge's rulings were not erroneous, much less misconduct. Further, the court rejected Miller's challenge to the sufficiency of the evidence to establish that Mary's death was a homicide, reasoning a forensic pathologist testified for the State to this effect and Miller did not preserve his appellate challenge to this testimony by timely and specifically objecting at trial. And, the court rejected Miller's arguments that the district court should have granted defense counsel's mistrial motions based on the State's improper reference to pornography and the trial court allowing the State to present rebuttal expert witness testimony, reasoning any error was harmless. Further, the court found no reversible error in allowing evidence of Miller's extramarital affair, evidence of Miller's access to dating websites, evidence of a life insurance policy, the admission of graphic photographs, and the admission of Miller's prior trial testimony. 

    Justice Johnson and assigned District Judge Wendel W. Wurst each wrote dissents and both would have reversed Miller's conviction and remanded for a new trial because Miller was denied his right to a fair trial. Justice Johnson opined that Miller was denied a fair trial due to the cumulative effect of the following errors: the retrial's venue; the district court allowing a juror who should have been stricken for cause to sit on the jury; the Assistant Douglas County Attorney providing rent-free lodging to a principle State's witness; the Douglas County Attorney's Office's failure to turn over privileged conversations Miller had with his attorney; the district court's decision to allow evidence of graphic photos and of Miller accessing dating websites; and the forensic pathologist's expert opinion on the cause of death, which Justice Johnson opined was improperly based on the pathologist assessing witness credibility and weighing conflicting evidence. District Judge Wurst agreed with Justice Johnson and added that he would have found Miller's trial objections were sufficient to preserve for appellate review Miller's challenge to the forensic pathologist's testimony on Mary's cause of death.

    Kansas Court of Appeals decisions released today.


  • 01 Oct 2018 10:23 AM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions today:

    Appeal No. 119,012: In the Matter of Jeffery A. Mason 

    Archived oral argument video

    The Supreme Court ordered the indefinite suspension of Mason, a Goodland attorney admitted in 1983 to practice law in Kansas. The suspension resulted from admitted violations of the Kansas Rules of Professional Conduct. Mason agreed he violated rules prohibiting dishonesty or misrepresentation, lack of diligence in representing a client, and failure in client communication, while representing the Goodland Medical Foundation, a nonprofit organization. The Foundation learned in 2016 that its Internal Revenue Code tax exempt status was revoked because of Mason's failure to file required documentation. When asked about this, a disciplinary hearing panel concluded, Mason "repeatedly provided false information to members of the Foundation's board," misled Foundation board members that he was working on the IRS documentation problem, and was motivated by dishonesty. The court's order noted Mason was previously suspended in 2016 for another matter, and was recently informally admonished for violating competence rules in a water rights case. The court said in ordering the indefinite suspension it considered "the serious nature of the violations detailed in the panel's report; the violations' similarity to the misconduct in the previous disciplinary case; and the respondent's affirmative statement at his earlier hearing before this court that there were no additional problems in his practice, even though he knew then he had engaged in the misconduct at issue in this case."

    Appeal No. 115,451: State of Kansas v. Stephanie R. Lamone

    Summary calendar; no oral argument

    The Supreme Court vacated Lamone's sentence for driving under the influence based on two prior convictions for DUI and remanded the case for resentencing. Lamone's criminal history score was based on two previous DUI convictions under Wichita's Municipal Code. The court held that those convictions could not be used to enhance the sentence for her current DUI. The statute defining "conviction" for purposes of counting previous DUI convictions requires that convictions from municipalities or other states prohibit the same or a narrower range of conduct as the Kansas DUI statute. The Wichita ordinance prohibited a broader range of conduct than the state statute and therefore could not be used for sentence enhancement.

    Appeal No. 112,500: State of Kansas v. Alfred Van Lehman Jr.

    Archived oral argument

    The Supreme Court reversed the Court of Appeals' decision affirming the Sedgwick County District Court's decision to increase the term of Lehman's postrelease supervision. The court held that after Lehman had completely served his originally imposed postrelease supervision term, the double jeopardy provisions of the federal and state constitutions precluded the district court from imposing a longer postrelease supervision term.

    Kansas Court of Appeals decisions released today

  • 27 Sep 2018 3:10 PM | Tiffany Fisher (Administrator)

    The Kansas Supreme Court released the following published decisions September 21:

    Appeal No 115,126: Ed DeWitte Insurance Agency, Inc., et al. v. Financial Associates Midwest Inc., et al

    Archived oral argument video

    In an opinion written by Justice Caleb Stegall, the court unanimously reversed the Johnson County District Court's grant of summary judgment for Financial Associates Midwest, Inc., a health insurance brokerage, and Blue Cross and Blue Shield of Kansas City, a health insurance agency, and remanded the case for further proceedings. In the 1990s, Financial Associates entered into an oral agreement with three of its employees to pay them half of the override it received from Blue Cross in exchange for their work. In 2011, Blue Cross bought Financial Associates and stopped the override payments. The three employees left the agency and brought a breach of contract claim. 

    The district court ruled the claim was precluded by the statute of frauds, which requires that any agreement that cannot be performed within one year must be reduced to writing. The Court of Appeals affirmed and held that to satisfy the full-performance exception to the statute of frauds, the former employees had to fully perform their part of the agreement and the only thing left to be done was for the former employer to pay. Because the duty to pay depended on the actions of third parties (the policyholders' decision to renew), the panel ruled in favor of Financial Associates and Blue Cross. The Supreme Court disagreed, holding that full performance by one party, standing alone, is sufficient to remove the agreement from the statute of frauds. The court further held that the former employees fulfilled their end of the bargain, the full-performance exception applied, and the alleged oral contract was removed from the statute of frauds.

    Appeal Nos. 113,097 and 113,282: Alain Ellis Living Trust, et al. v. Harvey D. Ellis Living Trust, et al

    Archived oral argument video

    Alain Ellis and her husband Dr. Harvey Ellis Sr. both executed living trusts. While acting as trustee, Harvey improperly converted a substantial amount from Alain's trust and placed the converted assets into his own trust. These actions were not discovered until after Harvey died. Harvey's trust returned funds improperly transferred. Alain's trust and its beneficiaries sued Harvey's trust and others seeking additional damages, including punitive damages and statutory double damages allowed when a trustee embezzles or knowingly converts trust property. The Sedgwick County District Court ruled both types of damages were not recoverable against a deceased trustee. The Kansas Supreme Court reversed. The court held a trust and its beneficiaries who have brought a cause of action for a trustee's breach of trust and breach of fiduciary duty may seek punitive damages under K.S.A. 58a-1002(c) from the estate of the trustee under the procedures and requirements of K.S.A. 60-3702 and 60-3703. The court also held if a beneficiary of a trust brings a cause of action alleging a deceased trustee embezzled or knowingly converted to the trustee's own use any of the personal property of the trust, the trustee's estate shall be liable for double the value of the embezzled or converted property if those damages are greater than the damages calculated under K.S.A. 58a-1002(a). Both double damages, if the greater recovery, and punitive damages may be recovered under KS.A. 58a-1002.

    Kansas Court of Appeals decisions.


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