Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 81 No. 2 Pg. 30 |
| Pages | 30 |
| Publication year | 2012 |
Supreme Court
Attorney Discipline
INDEFINITE SUSPENSION
IN RE SHELLEY KURT BOCK
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 106,284 — DECEMBER 2, 2011
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against Shelley Kurt Bock, of Lawrence, an attorney admitted to the practice of law in Kansas in 1979. Bock's disciplinary matter involved his representation of clients for expungement of criminal convictions, child in need of care cases based on his service on the juvenile panel, guardian ad litem, representing Spanish speaking criminal defendants, and other criminal matters.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the respondent be indefinitely suspended.
HEARING PANEL: On October 8, 2010, the office of the disciplinary administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC). A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on December 9, 2010, at which the respondent was personally present and was represented by counsel. The hearing panel determined that respondent violated KRPCs 1.1 (competence); 1.3 (diligence); 1.4 (communication); 3.2 (expediting litigation); 8.1(b) (failure to respond to lawful demand for information from disciplinary authority); and Kansas Supreme Court Rule 207(b) (failure to cooperate in disciplinary investigation). The respondent also violated the terms and conditions of his probation, as ordered by this court in its order of February 1, 2008. The hearing panel unanimously recommended that the respondent be suspended from the practice of law for an indefinite period of time
HELD: Court concluded the hearing panel's findings were supported by clear and convincing evidence. Court recognized that at the hearing before this court, both the office of the disciplinary administrator and the respondent recommended indefinite suspension. The respondent has been disciplined previously on several occasions, including a three-year probation in 2008, informal admonishment in 2009, and a temporary suspension in 2010. When those incidents are considered along with the respondent's multiple offenses in this case, including violations of KRPCs 1.1, 1.3, 1.4, 3.2, 8.1(b), and Kansas Supreme Court Rule 207(b), the Court found indefinite suspension is the appropriate discipline.
DISBARMENT
IN RE ERIC T. TOLEN
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 106,224 — DECEMBER 2, 2011
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against Eric T. Tolen, of Jefferson City, Mo., an attorney admitted to the practice of law in Kansas in 1987. Following a trial, on September 19, 2008, a jury convicted the respondent of two counts of statutory sodomy, first degree, unclassified felonies, 34 counts of statutory sodomy, second degree, class C felonies, and one count of victim tampering, a class D felony. The respondent was found not guilty of attempted statutory sodomy, a class C felony. On November 7, 2008, the Court sentenced the respondent to serve 65 years in prison. The respondent remains in prison in Missouri.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator recommended that the respondent be disbarred.
HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on January 21, 2011, at which the respondent was not personally present and was not represented by counsel. The hearing panel determined that respondent violated KRPC 8.4(b) (commission of a criminal act reflecting adversely on the lawyer's honesty, trustworthiness, or fitness as a lawyer); Supreme Court Rules 203(c)(1) (failure to notify disciplinary administrator of felony charge); and 208(c) (failure to notify Clerk of the Appellate Courts of change of address). The hearing panel unanimously recommended that the respondent be disbarred.
HELD: Court held the evidence before the hearing panel established the charged misconduct of the respondent by clear and convincing evidence and supported the panel's conclusions of law. As the hearing panel noted, the respondent has been disbarred by the Missouri Supreme Court for his criminal convictions in that state. When this action were considered along with the respondent's multiple offenses in this case, including violations of KRPC 8.4(b) (2010 Kan. Ct. R. Annot. 603); Kansas Supreme Court Rules 203(c)(1) (2010 Kan. Ct. R. Annot. 276); and 208(c) (2010 Kan. Ct. R. Annot. 320), the Court found disbarment was the appropriate discipline.
CIVIL
ECONOMIC LOSS DOCTRINE
DAVID V HETT
MARION DISTRICT COURT — REVERSED IN PART
AND REMANDED
COURT OF APPEALS — REVERSED ON THE ISSUE FOR
WHICH REVIEW WAS GRANTED
NO. 98,419 — DECEMBER 30, 2011
FACTS: The Davids acted as their own general contractor in order to build their home. They performed some of the work themselves, such as framing, roofing and finishing, but hired contractors for other aspects of the construction. Hett Construction performed the excavation, basement and concrete work. The plans called for 30-inch deep footings for the basement. Hett advised the Davids that he would instead pour a 12-inch footing as he had always done. The Davids accepted Hett's completed work and paid $20,000. Five years later the Davids began experiencing unusual settling in their garage and basement areas. They sued Hett for breach of contract, negligence, fraud, fraudulent concealment, and violations of the Kansas Consumer Protection Act (KCPA). After Hett filed for summary judgment and the Davids failed to answer, the district court treated Hett's statements as admissions by the Davids. The admissions effectively devastated many of the Davids' claims. The district court granted summary judgment in favor of Hett on all claims. The court found that the contract allegations and action under the Kansas Consumer Protection Act were barred by the statute of limitations. The court also held that the uncontroverted facts demonstrated Hett made no untrue statements nor took any action with intent to deceive the Davids, which were essential elements to plaintiffs' fraud counts, so those claims failed as well. The district court also held that the economic loss doctrine prevented the Davids from bringing a tort action under circumstances governed by contract. The district court also held that the economic loss doctrine supplied an additional bar to plaintiffs' fraud claims. The Court of Appeals affirmed the district court's decision in all respects.
ISSUE: Economic loss doctrine
HELD: Court stated that the economic loss doctrine should not bar claims by homeowners seeking to recover economic damages resulting from negligently performed residential construction services. The court overruled Prendiville v. Contemporary Homes Inc., 32 Kan. App. 2d 435, 83 P.3d 1257, rev. denied 278 Kan. 847 (2004). Court held that a homeowner's claim against a residential contractor may be asserted in tort, contract, or both, depending on the nature of the duty giving rise to the claim. Court held that the Court of Appeals and the district court erred in applying the economic loss doctrine to bar negligence claims brought by homeowners arising from the performance of residential construction services. Court remanded to determine whether the plaintiffs allege any breach of a commonlaw or statutory duty that would form the basis of a negligence claim against Hett. Court stated that it remanded to the district court to determine whether the Davids' claims arise in tort or contract. If the district court finds that the claims arise from the parties' contract, those claims are barred based upon the prior district court rulings that were affirmed by the Court of Appeals and constitute the law of the case. If the district court determines that some tort claims arise independently from the contractual duties between the parties, further proceedings will be required.
STATUTES: K.S.A. 20-3018; K.S.A. 50-623; and K.S.A. 84-2102, -105, -313, -314, -315, -316
GARNISHMENT, CONSENT JUDGMENTS, DORMANCY,
AND JURISDICTION
ASSOCIATED WHOLESALE GROCERS INC. ET AL. V.
AMERICOLD CORPORATION ET AL.
WYANDOTTE DISTRICT COURT — REVERSED AND
REMANDED WITH DIRECTIONS
NO. 99,506 — DECEMBER 23, 2011
FACTS: Americold I involved lawsuits arising out of a fire in Americold's 170 acre underground cold storage facility. Americold had primary general liability coverage for tenant claims of $1 million through National Union Fire Insurance Co. (National Union), with $25...
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