Appellate Decisions
| Publication year | 2013 |
| Pages | 38 |
| Citation | Vol. 82 No. 6 Pg. 38 |
Appellate Decisions
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SUPREME COURT
ATTORNEY DISCIPLINE
ORDER OF REINSTATEMENT IN RE MEGAN LEIGH HARRINGTON NO. 107,752 – APRIL 24, 2013
FACTS: On January 11, 2013, Court suspended the respondent, Megan Leigh Harrington, from the practice of law in Kansas for a period of two years. See In re Harrington, 296 Kan. 380, 293 P. 3d 686 (2013). The court provided that after the respondent had served three months of suspension, the remaining months would be stayed as long as respondent meets the terms and conditions during the balance of the period of suspension. On April 16, 2013, respondent filed a motion for reinstatement.
DISCIPLINARY ADMINISTRATOR: On April 22, 2013, the office of the disciplinary administrator filed a response stating that the respondent had provided appropriate documentation that she is in compliance with the conditions imposed by the court and is prepared to resume the practice of law with the conditions imposed by the court.
HELD: Court reinstated Harrington to the practice of law in the state of Kansas with the following conditions: (1) Comply with all recommendations of her Professional Treatment Services evaluation or other identified treatment provider; (2) continue her monitoring agreement with KALAP; (3) allow her supervising attorney to review her practice and provide written reports to the disciplinary administrator as requested by the disciplinary administrator; (4) maintain an ignition interlock device; (5) submit to drug and alcohol screenings when requested to do so by the disciplinary administrator or the proposed supervising attorney and seek additional treatment when requested by the disciplinary administrator or her proposed supervising attorney; and (6) refrain from consuming alcohol or cereal malt beverages.
CIVIL
ATTORNEY FEES AND APPELLATE ATTORNEY FEES SNIDER V. AMERICAN FAMILY MUTUAL INSURANCE CO. WYANDOTTE DISTRICT COURT – REVERSED AND REMANDED COURT OF APPEALS – AFFIRMED NO. 103,340 – APRIL 19, 2013
FACTS: Eugene Wayne Snider, d/b/a West Heating & Cooling, did not file a motion for appellate attorney fees in a successful appeal to the Court of Appeals that resulted in a remand to the district court. Snider v. American Family Mut. Ins. Co., No. 101,202, 2009 WL 2902588, at *15 (Kan. App. 2009) (unpublished opinion). In the district court proceeding on remand, Snider requested and received attorney fees related to both the district court and the appellate court proceedings based on the authority of K.S.A. 40-908, a prevailing party attorney fee statute. Considering an appeal from that order, the Court of Appeals reversed the award of appellate attorney fees, determining Snider had waived his right to appellate attorney fees by not filing a motion for attorney fees with the Court of Appeals in the prior appeal. Snider v. American Family Mut. Ins. Co., 45 Kan. App. 2d 196, 205-08, 244 P.3d 1281 (2011).
ISSUES: (1) Attorney fees and (2) appellate attorney fees
HELD: Court stated that Snider asks the court to overrule Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 265, 815 P.2d 550 (1991), where the court held that a party's request for civil appellate attorney fees is to be determined by the appellate court hearing the appeal. Supreme Court Rule 7.07(b) (2012 Kan. Ct. R. Annot. 66) provides a procedure for making such a request and specifies the time period after the appellate oral argument in which the request must be made. Snider asked the Court to exclude Evans' holding from those cases where a fee applicant did not prevail in the district court. Court rejected Snider's requests and concluded that some aspects of Snider's arguments were not preserved; the Court of Appeals correctly applied Rule 7.07(b), Evans, and K.S.A. 40-908; and the Court of Appeals did not abuse its discretion in determining the amount of reasonable attorney fees related to this current appeal. Court affirmed the Court of Appeals.
DISSENT: Justice Moritz dissented and would find that Snider followed the proper procedural requirements for recovering appellate attorney fees and is not barred from recovery of such fees. Justice Johnson joined in the dissent.
STATUTES: K.S.A. 40-908; and K.S.A. 60-2106
REAL ESTATE AND SELLER’S DISCLOSURE STATEMENT STECHSCHULTE ET AL. V. JENNINGS ET AL. JOHNSON DISTRICT COURT – REVERSED AND REMANDED COURT OF APPEALS – AFFIRMED IN PART AND REVERSED IN PART NO. 100,648 – APRIL 12, 2013
FACTS: Jennings purchased a house in 1998. Four years later Jennings contacted the builder of the home about water leaks. The windows appeared to be the source of the problem and needed to be replaced. In 2002 Jennings re-caulked all of the windows and doors in the home and between all cedar and stucco exterior elements. In May 2003 Jennings hired a painter to paint the areas where leak damage appeared. In 2005, Jennings listed the home for sale with Golson, his fiancee's, real estate company. Golson was the listing agent. The seller's disclosure statement completed by Jennings did not disclose any water damage, but stated in the "other matters" section that "several windows leaked after construction; full warranty repairs were performed, and correction is complete." The seller's disclosure statement had a buyer acknowledgment and agreement that stated that the Seller was selling the property as is without warranties or guaranties of any kind. The Stechschulte's purchased the home. After a heavy rain, extensive water damage occurred in the house. The Stechscultes sued Jennings for fraud, negligent misrepresentation, and breach of contract. The Stechschultes sued Golson and the real estate company for negligent misrepresentation and violations of the Kansas Consumer Protection Act. The district court granted summary judgment to all the defendants on all the claims based on to prior case law and that the Stechschultes had waived their right to rely on Jennings' representations. The Court of Appeals reversed the summary judgment ruling against Jennings, but affirmed in favor of Golson and the real estate company. The Court of Appeals found that the representations Jennings provided in the disclosure constituted a writing signed by the Seller and that the buyer acknowledgement did not waive the Stechschultes' right to rely on those representations. The Court of Appeals also found the Stechschultes' fraud claim was not limited to a fraud by silence claim and summary judgment was inappropriate.
ISSUES: (1) Real estate and (2) seller's disclosure statement
HELD: Court stated that the Buyer Acknowledgment in the residential real estate seller's disclosure form merely protected the seller and his or her broker from the buyer's later argument that the seller made oral representations upon which the buyer relied. It does not protect a seller or broker from the buyer's lawsuit based on representations and failure to disclose in the form itself or relieve a seller of the obligation to make accurate and complete disclosures, and both contract and reliance-based tort and Kansas Consumer Protection Act claims are not subject to summary judgment. Court found that a buyer of residential real estate may qualify as an "aggrieved consumer" under the Kansas Consumer Protection Act. K.S.A. 50-634. Court held that the reasonableness of a home inspection, as true of the existence of fraud generally, poses a question of fact for trial. Court found that new opinions of the Kansas Supreme Court generally are binding on all other future cases and all cases still pending on appeal when the new opinions are filed. Court found no exception applicable in this case. Court concluded that genuine issues of material fact existed on the Stechschulte's fraudulent inducement, fraud by silence, negligent misrepresentation, and breach of contract claims against the defendant seller and against the defendant trust. Genuine issues of material fact also existed on the plaintiff buyers' negligent misrepresentation claim against the agent and the respondeat superior liability of her defendant broker. Court found that K.S.A. 50-625(a) provides that a consumer cannot waive or forego rights under the Kansas Consumer Protection Act. Court held that genuine issues of material fact exist on the plaintiff buyers' KCPA claims against the defendant real estate agent for seller and against the defendant brokerage company.
STATUTES: K.S.A. 50-625, -626, -634; K.S.A. 58-30,101, -30,106, -30-111; and K.S.A. 60-2103(h)
APPELLATE PRACTICE REMINDERS . . .
From the Appellate Court Clerk’s Office
Dispositions of Petitions for Review
When a party files a petition for review of a Court of Appeals decision under Rule 8.03 (2012 Kan. Ct. R. Annot. 72-76), the typical expectation is that the review will be granted, with a Supreme Court opinion to follow, or that the review will be denied. That is the result in most instances; however, other dispositions are possible under the rule.
• The Supreme Court may grant review but limit the issues which will be considered, resulting in a partial grant of review. See Rule 8.03(g)(1).
• The Supreme Court may, subsequent to a grant of review, determine that review was improvidently granted and issue an order stating that review was improvidently granted and that the Court of Appeals opinion or disposition is final. See Rule 8.03(h)(1).
• The Supreme Court may grant review and remand the appeal to the Court...
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