Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 81 No. 5 Pg. 32 |
| Pages | 32 |
| Publication year | 2012 |
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Supreme Court
Attorney Discipline
DISBARMENT IN RE LESLIE C. SCHAEFER ORIGINAL PROCEEDING IN DISCIPLINE NO. 10,407 — MARCH 1,2012
FACTS: In a letter dated February 27, 2012, addressed to the clerk of the appellate courts, Leslie C. Schaefer, of Rockville, Md., an attorney licensed as inactive in the state of Kansas, voluntarily surrendered her license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2011 Kan. Ct. R. Annot. 371). At the time the respondent surrendered her license, a complaint had been docketed by the disciplinary administrator's office in accordance with Supreme Court Rule 211 (2011 Kan. Ct. R. Annot. 334). The complaint concerns allegations that Schaefer violated Supreme Court Rule 207 (2011 Kan. Ct. R. Annot. 314); Supreme Court Rule 208 (2011 Kan. Ct. R. Annot. 327) and Kansas Rules of Professional Conduct 1.15 (2011 Kan. Ct. R. Annot. 519) (safekeeping property); 8.1 (2011 Kan. Ct. R. Annot. 609) (bar admission and disciplinary matters), and 8.4(c) and (g) (2011 Kan. Ct. R. Annot. 618) (misconduct).
HELD: Court found that the surrender of the respondent's license should be accepted and that the respondent should be disbarred. Schaefer was disbarred from the practice of law in Kansas, and her license and privilege to practice law were revoked.
ORDER OF DISBARMENT IN RE MARC A. SCHULTZ ORIGINAL PROCEEDING IN DISCIPLINE NO. 20,319 — MARCH 7, 2012
FACTS: Marc A. Schultz, an attorney admitted to the practice of law in the state of Kansas, voluntarily surrendered his license to practice law in Kansas. At the time Schultz surrendered his license, there was a panel hearing pending in accordance with Supreme Court Rule 211 (2011 Kan. Ct. R. Annot. 334). The complaint alleged that Schultz violated Kansas Rule of Professional Conduct 8.4(b) (2011 Kan. Ct. R. Annot. 618).
HELD: The court examined the files of the office of the disciplinary administrator and found that the surrender of Schultz' license should be accepted and that Schultz should be disbarred. Schultz was disbarred from the practice of law in Kansas, and his license and privilege to practice law were revoked.
ORDER GRANTING RESPONDENT'S MOTION TO MODIFY THE TERMS OF RESPONDENT'S PROBATION IN RE KEVIN PETER SHEPHERD ORIGINAL PROCEEDING IN DISCIPLINE NO. 102,925 — MARCH 1, 2012
FACTS: In an order dated May 2, 2011, Court granted Shepherd's motion to suspend the imposition of the remaining two years of his three-year suspension from the practice of law and ordered reinstatement of Shepherd's license to practice law in Kansas. However, Shepherd's reinstatement was subject to several terms and conditions of supervised probation, including the condition that Shepherd continue to maintain professional liability insurance. On December 8, 2010, Shepherd filed a motion to modify the terms of his probation, specifically requesting that this court "lift the requirement that he carry professional liability insurance." In support of the motion, Shepherd attached an affidavit asserting that despite his good faith efforts to obtain professional liability insurance, he had been unable to do so and had resumed the practice of law without insurance in May 2011. Shepherd further represented that he remains in compliance with all of the other conditions of his probation and that he continues practicing law under the supervision of his practice supervisor.
DISCIPLINARY ADMINISTRATOR: The disciplinary administrator responded to the motion, taking no position regarding Shepherd's requested modification. Instead, the disciplinary administrator indicated he would "be prepared to continue monitoring Shepherd's compliance with the conditions as imposed by the Court."
HELD: In light of the stated neutrality of the office of the disciplinary administrator regarding disposition of Shepherd's motion as well as that office's willingness to continue monitoring Shepherd's probation, a majority of the members of the Court granted Shepherd's motion to modify the terms of his probation to remove the requirement that he carry professional liability insurance. However, a minority of the court would find that Shepherd has been engaged in the unauthorized practice of law since May 2011 based upon his failure to first obtain relief from the requirement in the probation order that he maintain professional liability insurance prior to resuming the practice of law.
Civil
EMINENT DOMAIN MANHATTAN ICE AND COLD STORAGE INC. V CITY OF MANHATTAN RILEY DISTRICT COURT — AFFIRMED NO. 102,235 — MARCH 23, 2012
FACTS: Jury awarded $3.5 million to landowner in City eminent domain proceeding on three tracts of land that included meat processing plant. Landowner appealed, claiming district court erred in: excluding testimony of 17 witnesses as irrelevant; limiting landowner's testimony as expert valuation witness; excluding deposition (of Larva) to lay foundation for report on cost of replacing meat processing plant; restricting testimony of valuation expert (Heavey); and excluding evidence of comparable sales. Landowner also challenged district court's refusal to grant PIK instructions pertaining to special use property, holding this was not a special use case in which there was no ascertainable market for the subject property.
ISSUES: (1) Exclusion of witness testimony, (2) restrictions on landowner testimony, (3) exclusion of deposition, (4) restrictions on valuation expert's testimony, (5) exclusion of comparable sales, and (6) jury instructions
HELD: Landowner abandoned challenge to exclusion by 14 witnesses. Of remaining three witnesses, exclusion of one as irrelevant may have been error but testimony could have been excluded as cumulative. Testimony of second witness about three-year-old proposal for refrigeration equipment was too remote in time to be admissible. For third witness, landowner did not identify representative of company to testify as expert regarding cost to rebuild meat processing plant, thus no support in record for landowner's challenge.
Landowner allowed to testify on his own opinion of fair market value with $10 million for improvements on the tracts and $5 million for land. But lay landowner not qualified to assemble components of and calculate replacement cost. Landowner failed to carry burden of ensuring that such expert testimony or other authority was presented, and the failure not attributable to trial judge's ruling limiting landowner's testimony.
Under facts in case, Larva's deposition testimony could not pass probative value prong of relevance test, and Larva did not have personal knowledge of existing plant to satisfy knowledge requirement under K.S.A. 60-456(b)(1). Deposition testimony thus inadmissible despite K.S.A. 60-232(a)(3)(B).
Under facts in case, trial judge did not disallow appropriate opinions and support for them. Heavey not prevented from testifying about his replacement cost-based opinion on fair market value, but landowner did not call Heavey to stand.
Landowner abandoned one comparable sale as too remote in time. Other comparable sale not addressed on appeal because no trial court ruling found on admissibility of that sale.
No error in trial court's refusal to instruct jury as landowner requested. Special use PIK instructions requested by landowner are outmoded. Current wording of K.S.A. 26-513(e) and instructions based upon it adequately provide for jury consideration and valuation of a unique or highly unusual property.
STATUTES: K.S.A. 26-513, -513(d), -513(e); and K.S.A. 60-232(a)(3)(B), -405, -419, -456(a), -456(b)(1), -460(c)(1)
EMINENT DOMAIN KANSAS CITY MALL ASSOCIATES INC. V. THE UNIFIED GOVERNMENT OF WYANDOTTE COUNTY/KANSAS CITY, KANSAS WYANDOTTE DISTRICT COURT — AFFIRMED NO. 102,163 — MARCH 16, 2012
FACTS: KC Mall initiated review of the court-appointed appraisers' award of $7.5 million for the Indian Springs Shopping Center, renamed Park West Business Center by KC Mall. The date of the taking was June 20, 2007. The 57.38-acre property underlies the main mall structure and four outbuildings, including a dental office that once housed Brotherhood Bank, an old Franklin Bank building, and two auto repair shops. KC Mall filed a motion in limine to exclude 2005 tax appeal documents filed by Joseph Kashani, the president of KC Mall, for four of five parcels that make up the subject property. In the tax appeal, Kashani estimated the value of the main mall at $1.5 million, the value of the former Dillard's that was part of the main mall at $1 million, the former Franklin Bank building at $100,000, and the former Brotherhood Bank building at $50,000. KC Mall's motion argued that it had filed the 2005 appeal only to force the Unified Government to abide by a Neighborhood Revitalization Plan. The plan was supposed to freeze property taxes for 10 years, starting in 1998; but the Unified Government raised the tax on the property in 2005. In the alternative, KC Mall argued that the "unit rule" prohibited admission of the tax appeal documents because they addressed only components of the property and not the entire tract. The trial court denied the motion and later conducted a full trial involving multiple experts and appraisals. The jury returned a verdict of $6.95 million.
ISSUE: Eminent domain
HELD: Court rejected KC Mall's argument that the 2005 tax appeal was filed only to enforce the 10-year tax freeze. Court...
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