Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 77 No. 9 Pg. 39 |
| Pages | 39 |
| Publication year | 2008 |
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Supreme Court
Attorney Discipline
IN RE NEIL A. DEAN ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 19,885 — AUGUST 26, 2008
FACTS: Respondent was a private practitioner in Topeka. He wrote to the clerk of the appellate courts voluntarily surrendering his license to practice law pursuant to SCR 217. At the time of the surrender, five separate complaints had gone to the review committee. The committee found probable cause of violations, including lack of diligence, failure to communicate, abandonment of clients, and misappropriation of client funds.
HELD: The Court examined the disciplinary administrator's file and found that the surrender should be accepted and respondent should be disbarred.
IN RE JANELL J. FOSTER ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 11,466—AUGUST 26, 2008
FACTS: Respondent, an attorney from Wichita, voluntarily surrendered her license to practice in Kansas pursuant to SCR 217. At the time she surrendered her license, a complaint was being investigated in which it was alleged that she had converted funds from numerous individuals for whom she was acting in a fiduciary capacity.
HELD: The Court examined the disciplinary administrator's file and found that the surrender should be accepted and respondent should be disbarred.
IN RE GRANT D. GRIFFITHS ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 18,527—AUGUST 14, 2008
FACTS: Respondent was a private practitioner in Clay Center. He wrote to the clerk of the appellate courts voluntarily surrendering his license to practice law, pursuant to SCR 217. At the time of the surrender, seven complaints were pending and alleged lack of competence, diligence, and communication as well as failure to expedite litigation, improper contact with a represented person, failure to return an unearned retainer, and failure to cooperate in the disciplinary process. Respondent admitted misappropriating funds held in trust for minor children.
HELD: The Court examined the files of the Disciplinary Administrator's Office and found that the surrender should be accepted and respondent should be disbarred.
IN RE CHRISTOPHER G. KELSEY ORIGINAL PROCEEDING IN DISCIPLINE DISBARMENT NO. 14,217—AUGUST 26, 2008
FACTS: Respondent, a private practitioner from Lawrence, wrote to the appellate clerk voluntarily surrendering his license to practice law in Kansas pursuant to SCR 217. At that time, eight cases were pending in the Disciplinary Administrator's Office and were under investigation. Allegations included misappropriation of client funds, lack of diligence, lack of communication, and failure to file timely responses to the disciplinary complaints.
HELD: The Court examined the disciplinary administrator's files and found that the surrender should be accepted and that he should be disbarred.
Civil
AUTOMOBILES AND NEGLIGENCE DEAL V BOWMAN MORRIS DISTRICT COURT—AFFIRMED COURT OF APPEALS — REVERSED NO. 96,868 — AUGUST 1, 2008
FACTS: Personal injury action arising from collision of two vehicles at a controlled intersection. Bowman stopped his car at the stop sign, looked both directions before entering the intersection, but collided with Deal's car, which Bowman did not see due to glare from the sun. District court denied Deal's motion for a judgment as a matter of law, and jury found no fault/negligence by either party for the accident. Relying on Diaz v. Duke, 206 Kan. 650 (1971), district court denied Deal's motion for a new trial. In unpublished opinion, Court of Appeals reversed, distinguishing sudden or unexpected blinding in Diaz from a more constant blinding condition, and finding Bowman was negligent as matter of law because it was inherently unreasonable to enter intersection when sun prevented him from seeing whether there were approaching cars. Bowman's petition for review is granted.
ISSUES: (1) Blinding light and (2) reasonably prudent driver
HELD: Bowman's testimony raised factual question concerning the reasonableness of his actions. District court correctly submitted question of negligence/liability to the jury.
STATUTE: K.S.A. 8-1528(b), 60-250 CHILD SUPPORT STATE OF KANSAS EXREL. SECRETARY OF SRS V. BOHRER SEDGWICK DISTRICT COURT — REVERSED COURT OF APPEALS — AFFIRMED NO. 95,935 — AUGUST 8, 2008
FACTS: S.B. was born to Timothy Bohrer and Tracy Saxton (f/k/a Bohrer) on Feb. 28, 1994. They divorced one year later, and physical custody of S.B. alternated between them for several years. In 1999, the state of Kansas initiated a Child in Need of Care (CINC) proceeding concerning S.B. S.B. was initially placed into foster care, but by February 2001, S.B. was living in Iowa with her maternal great-grandmother, Ellen Holmes. Social and Rehabilitation Services (SRS) filed a motion in the CINC case seeking appointment of Holmes as permanent guardian. On May 25, 2001, Bohrer and Saxton consented to Holmes' appointment as the permanent guardian of S.B. The district court appointed Holmes as the permanent guardian. Thereafter, the court released S.B. from SRS custody and closed the CINC case. On March 23, 2005, SRS filed suit seeking reimbursement from Bohrer for funds expended by the state of Iowa on behalf of S.B. and an order for future child support and medical coverage. The district court held that the permanent guardianship terminated Bohrer's obligation to support S.B. While the appeal was pending, the Legislature enacted the Revised Kansas Code for Care of Children (Code), which states that the appointment of a permanent custodian (formerly "permanent guardian") without a termination of parental rights does not terminate the parent's duty to provide child support and medical support. The Court of Appeals reversed holding that the appointment of a permanent guardian under the previous version of the Code did not relieve Bohrer of his common-law duty to support his minor child; therefore, applying the new law retroactively would not prejudice Bohrer's substantive rights.
ISSUE: Child support
HELD: Court stated that parents have a common-law duty to support their minor children, regardless of any statute imposing such an obligation. This common-law duty of support continues until the child reaches the age of majority or the death of the child or the obligor parent. The common-law duty of support ends, however, if parental rights are terminated by adoption, termination of parental rights, or relinquishment of parental rights. Court held that unlike the statutes concerning voluntarily relinquishment of parental rights, adoption, and involuntary termination of parental rights, the statutes providing for consensual appointment of a permanent guardian under K.S.A. 38-1587 do not contemplate a complete severance of the parent's ties to the child and, thus, the appointment of a permanent guardian under K.S.A. 38-1587 does not terminate the obligation of the natural parent to support his or her child.
DISSENT (Johnson, J.): Prior laws affected a transfer of the legally enforceable child support obligation from the parent to the permanent guardian and that the new laws placing that obligation on the parent to the exclusion of the permanent custodian. Johnson would hold that the new law affects the parent's rights and so, pursuant to K.S.A. 2007 Supp. 38-2283(a), the new code cannot be applied retroactively.
STATUTES: K.S.A. 23-9,101; K.S.A. 38-125, -1501, -1502(d), (w), -1581, -1583, -1584, -1587, -2202(w), -2268(b)(4), -2269, -2270, -2272, -2283; and K.S.A. 59-2111, -2112, -2118, -2124, -2142, -3050
HABEAS CORPUS WILKINS V. STATE JEFFERSON DISTRICT COURT—AFFIRMED COURT OF APPEALS — REVERSED NO. 95,023 — AUGUST 22, 2008
FACTS: Wilkins convicted in 1996 on crimes arising from a 1993 murder. In 2003 he filed post-conviction motion claiming (1) his retained trial attorney was ineffective in failing to investigate witnesses or challenge forensic identification of victim and (2) the prosecutor failed to disclose exculpatory evidence of polygraph of only witness who placed Wilkins at scene of crime. Following an evidentiary hearing, district court found the attorney had been reasonable and effective under the circumstances and found no prejudice had been demonstrated. District court also rejected Wilkins' Brady claim, finding in part the polygraph examinations would have been inadmissible. In unpublished opinion, Court of Appeals reversed and remanded for a new trial, finding the attorney's performance was deficient, and finding merit to the Brady claim. State's petition for review granted.
ISSUES: (1) Effective assistance of counsel and (2) disclosure of exculpatory evidence
HELD: Under totality of circumstances, close question whether Wilkins demonstrated unreasonable performance by failing to hire or consider hiring a dental forensics expert, but no prejudice. Substantial competent evidence supports district court's findings of no deficient performance in various discovery allegations, and finding no prejudice.
No exceptional circumstances excuse for Wilkins' failure to raise Brady claim that prosecutor did not disclose plea agreements of state witnesses. There is substantial competent evidence that state failed to produce polygraph reports to the defense pursuant to prosecutor's open-file policy, but nondisclosure of this exculpatory evidence was not prejudicial because it was inadmissible.
STATUTE: K.S.A. 60-1507
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