Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 78 No. 4 Pg. 40 |
| Pages | 40 |
| Publication year | 2009 |
Supreme Court
CIVIL
EMINENT DOMAIN, JURISDICTION, AND CONTEMPT HARSCH V. MILLER
COFFEY DISTRICT COURT-AFFIRMED IN PART AND REVERSED IN PART
NO. 100,149 - FEBRUARY 13, 2009
FACTS: Miller, on behalf of the Kansas Department of Transpo-ration (KDOT), instituted eminent domain proceedings against property owned by the Harsches. The Harsches then filed an action in district court appealing the amount of the damages award of the court-appointed appraisers. The Harsches filed a separate action contending the Eminent Domain Procedure Act was unconstitutional and sought a stay of the damage lawsuit pending resolution of the constitutional challenge. Later, they filed a similar constitutional action in federal court. The state court temporarily denied the motion to stay. The Harsches filed a notice of appeal and docketing statement acknowledging the ruling was not a final order, but asserted jurisdiction under the collateral order doctrine. The Harsches argued the state court lost jurisdiction after their appeal to conduct any proceedings on the damage action. The Harsches did not appear at the trial on the damage action. The district court held the Harsches in contempt and dismissed the damage action for lack of prosecution and assessed $3,769 in costs and fees. The Kansas Supreme Court dismissed the stay order appeal for lack of jurisdiction and then the Harsches filed a notice of appeal of the state court's dismissal of the damage action.
ISSUES: (1) Eminent domain, (2) jurisdiction, and (3) contempt
HELD: Court held the district court did not lose jurisdiction to proceed with the trial court once the Harsches filed their docketing statement with the clerk of the appellate courts. Court stated that the Harsches attempted to use the appeal as the functional equivalent of a stay of the state court proceedings to help protect their trial in federal court. Court stated they gambled and lost. Court also held that because the Harsches did not appear for trial, the district court dismissed their appeal of the appraiser's award for lack of prosecution. Because they only argued that the court had no jurisdiction to take any action and they took no issue with the propriety of the dismissal, Court did not decide whether the dismissal was an abuse of the district court's discretion. Court also found there was no abuse of discretion in the district court's denial of the Harsches' motion to stay and ordering the jury trial to proceed. However, Court held the district court erred in its contempt order. Court found the contempt order was void due to jurisdictional defect because the district court journal entry contains no reference why the Harsches did not appear for the jury trial.
STATUTES: K.S.A. 20-1203; K.S.A. 26-501, -504, -508, -513; and K.S.A. 60-254(b), -2102(a)(4)
GAS, CONTRACT, AND SANCTIONS DOUBLE M CONSTRUCTION V. STATE CORPORATION COMMISSION
SHAWNEE DISTRICT COURT-AFFIRMED
NO. 100,312 - FEBRUARY 6, 2009
FACTS: Double M Construction Inc. (Double M) acted as subcontractor for Double J Pipeline LLC (Double J), providing excavation service in Labette County. As contractor, Double J was to spot and expose line crossing ahead of equipment and to excavate under and around existing utilities. Prior to excavation, Double J contacted Kansas One Call, but Double M did not. During excavation, equipment owned and operated by Double M struck and ruptured a high-pressure natural gas transmission line, resulting in death of a Double M employee and property damage. Kansas Corporation Commission (KCC) imposed $25,000 statutory penalty against Double M for failing to properly investigate and locate the natural gas pipeline prior to excavation. On judicial review, district court affirmed. Double M appealed, advancing statutory, equitable, and constitutional arguments. Appeal transferred to Supreme Court.
ISSUE: Construction and application of Underground Utility Damage Prevention Act (UUDPA)
HELD: Double M did not comply with plain, clear, and unambiguous language of UUDPA. District court correctly determined that KCC acted within its statutory mandate. Under plain reading of UUDPA, Double M was an "excavator"who failed to communicate with Kansas One Call. This failure to perform its statutory duty rendered Double M subject to penalties under K.S.A. 66-1,151.
Equitable considerations advanced by Double M do not apply and are not persuasive. UUDPA does not provide for delegation of duties, and Double M's reliance on common law of negligence actions is not relevant to statutory sanctions imposed. To the extent Double J failed to inform Double M of its communications with Kansas One Call, that matter is for resolution between those parties, not between Double M and KCC. No merit to Double M's claim of impairment of constitutional freedom to contract, or that UUDPA definition of "excavator"is unconstitutionally vague. Double J's notification to Kansas One Call of the excavation plan did not satisfy statutory requirement imposed on Double M, the party directly engaged in excavating.
STATUTE: K.S.A. 66-118b, -1,151, -1,152, -1801 et seq., -1802(d), -1802(m), -1803, -1804, -1804(a), -1805, -1805(a), -1805(b), -1805(d), 77-529(a)(1)
HABEAS CORPUS ROBERTSON V. STATE
BUTLER DISTRICT COURT-AFFIRMED
COURT OF APPEALS - AFFIRMED
NO. 95,188 - FEBRUARY 6, 2009
FACTS: Robertson's convictions affirmed on direct appeal. 279 Kan. 291 (2005). He then filed K.S.A. 60-107 action on nine claims. District judge denied relief after appointing counsel and conducting a nonevidentiary hearing. Court of Appeals affirmed in unpublished opinion, finding in part trial counsel was not constitutionally ineffective in failing to demand competency evaluation to challenge voluntariness of Robertson's confession, and finding district judge's stated rationale for denying relief was adequate under Supreme Court Rule 183(j). Robertson's petition for review was granted.
ISSUES: (1) Ineffective assistance of trial counsel, (2) ineffective assistance of K.S.A. 60-1507 motion counsel, (3) standard for legal prejudice, and (4) adequacy of district court's findings and conclusions
HELD: Brief discussion of nine claims originally raised in Robertson's 60-1507 motion, noting one survived in limited respect - whether trial counsel's investigation of Robertson's competency at time of his confession was inadequate. All other issues were or should have been raised on direct appeal, were abandoned on appeal, or were vague and conclusory. On facts of case, this surviving claim of ineffective assistance of trial counsel has no merit. Claims that trial counsel failed to investigate false testimony, raised for first time on appeal, are not addressed.
Ineffective assistance of 60-1507 counsel is raised for first time on appeal, but issue is decided without remand because quality of the assistance provided is determinable on transcript of nonevidentiary hearing included in the record on appeal. There is no constitutional right to effective assistance of counsel in 60-1507 action, but there is a conditional right to counsel protected by statute. Once appointed, counsel for a 60-1507 motion must, within stricture of required candor to the court and other ethical rules, pursue relief for client. Counsel is not free to act merely as an objective assistant to the court or to argue against client's position, as counsel for Robertson did in this case.
A showing of legal prejudice is required when the performance of statutorily provided counsel on a 60-1507 motion is questioned. The required showing of prejudice is the same as that imposed in constitutional cases. Disagreement stated with Court of Appeals panels that have appeared to impose a more rigorous standard. Motions, files, and records in this case demonstrated no such prejudice.
District judge's sparse ruling, considered in light of judge's additional statements at the hearing, provided an adequate platform for appellate discussion of and action on Robertson's arguments.
STATUTE: K.S.A. 2-4506(b), 60-1507
MINES AND MINERALS, DEEDS, AND QUIETING TITLE CENTRAL NATURAL RESOURCES V. DAVIS OPERATING CO.
LABETTE DISTRICT COURT - AFFIRMED
NO. 96,463 - FEBRUARY 6, 2009
FACTS: Central Natural Resources Inc. (Central) obtained coal warranty deeds on 16 Labette County tracts in the 1920s, but never exercised right to mine or remove coal, or to explore/produce coalbed methane gas (CBM). Some 75 years later, defendant oil and gas companies obtained oil and gas leases on same 16 tracts and proceeded to drill for and obtain CBM. Central filed quiet title action, claiming ownership of CBM and damages for trespass and conversion. District court granted summary judgment to defendants on CBM ownership issue, finding deeds conveying "all coal"to Central did not transfer ownership of CBM. As issue of first impression, district court certified interlocutory appeal, which Court of Appeals Appellate Decisions denied. Kansas Supreme Court granted Central's motion to directly docket the civil interlocutory appeal in that court.
ISSUES: (1) District court's handling of judicial notice motion, (2) proposed legal theory, (3) rules of deed interpretation, (4) application of R.S. 1923 67,202 - predecessor to K.S.A. 58-2202, and (5) parties' intent
HELD: A detailed analysis of Central's claim about the district court's handling of its voluminous judicial notice motion is unnecessary to resolve case. District court provided initial review and determined materiality and relevance. Facts and circumstances to be established in the motion were not controverted and proffered material did not support Central's conclusions.
Proposed "first severance/container theory"is discussed and rejected. Court declines adoption of artificial rule of law mandating that conveyance of all coal, with...
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