Appellate Decisions
| Publication year | 2013 |
| Pages | 38 |
| Citation | Vol. 82 No. 7 Pg. 38 |
July, 2013
All opinion digests are available on the KBA members-only website at www.ksbar.org. We also send out a weekly newsletter informing KBA members of the latest decisions. If you do not have access to the KBA members-only site, or if your email address or other contact information has changed, please contact member services at info@ksbar.org or at (785) 234-5696. You may go to the courts' website at www.kscourts.org for the full opinions.
SUPREME COURT
ATTORNEY DISCIPLINE
DISBARMENT IN RE DAVID M. DRUTEN ORIGINAL PROCEEDING IN DISCIPLINE NO. 109,240 - MAY 24, 2013
FACTS: This is an original proceeding in discipline filed by the office of the disciplinary administrator against the respondent, David M. Druten, of Merriam, an attorney admitted to the practice of law in Kansas in 1970. Druten's disciplinary matter involved his representation in a personal injury case.
HEARING PANEL: A hearing was held on the complaint before a panel of the Kansas Board for Discipline of Attorneys on May 16, 2012, at which the respondent did not appear. The hearing panel determined that respondent violated KRPC 1.1 (2012 Kan. Ct. R. Annot. 436) (competence), 1.3 (2012 Kan. Ct. R. Annot. 454) (diligence), 1.4(a) (2012 Kan. Ct. R. Annot. 473) (communication), 3.3(a)(1) (2012 Kan. Ct. R. Annot. 582) (candor toward tribunal), 3.4 (2012 Kan. Ct. R. Annot. 589) (fairness to opposing party and counsel), 8.1 (2012 Kan. Ct. R. Annot. 634) (knowing false statement; failure to respond to lawful demand for information from disciplinary authority), 8.4(c) (2012 Kan. Ct. R. Annot. 643) (conduct involving misrepresentation), and Kansas Supreme Court Rule 211(b) (2012 Kan. Ct. R. Annot. 350 (failure to file answer in disciplinary proceeding). The hearing panel unanimously recommended that the respondent be disbarred.
DISCIPLINARY ADMINISTRATOR: On August 14, 2012, the office of the disciplinary administrator filed a formal complaint against the respondent alleging violations of the Kansas Rules of Professional Conduct (KRPC); on October 1, 2012, the office filed a supplement to the formal complaint. The respondent did not file an answer. The disciplinary administrator's office recommended that respondent be disbarred.
HELD: Court stated that the respondent was given adequate notice of the formal complaint, to which he did not file an answer; he filed no exceptions to the hearing panel's final hearing report. Respondent did not appear in the Supreme Court hearing. Court adopted hearing panel's findings of fact and conclusions of law. Court agreed that respondent's conduct merited disbarment.
DISBARMENT IN RE JON MICHAEL KING ORIGINAL PROCEEDING IN DISCIPLINE NO. 16,013 - MAY 3, 2013
FACTS: In a letter signed on May 3, 2013, addressed to the Clerk of the Appellate Courts, respondent Jon Michael King, of Lawrence, 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 the respondent surrendered his license, there was pending a panel hearing on a complaint in accordance with Supreme Court Rule 211 (2012 Kan. Ct. R. Annot. 350). The complaint concerns allegations of misconduct that respondent violated Rules 1.5 (unreasonable fees) (2012 Kan. Ct. R. Annot. 492), 1.7 (conflict of interest) (2012 Kan. Ct. R. Annot. 506), 1.13 (organization as client) (2012 Kan. Ct. R. Annot. 536), 1.15 (trust account and record keeping) (2012 Kan. Ct. R. Annot. 541), and 8.4 (misconduct) (2012 Kan. Ct. R. Annot. 643) of the Kansas Rules of Professional Conduct.
HELD: The Court, having examined the files of the office of the disciplinary administrator, found that the surrender of the respondent's license should be accepted and that the respondent is disbarred.
CIVIL
HABEAS CORPUS BAKER V. STATE SEDGWICK DISTRICT COURT - REVERSED AND REMANDED COURT OF APPEALS - AFFIRMED NO. 100,501 - JUNE 7, 2013
FACTS: Kansas Supreme Court affirmed Baker's conviction for first-degree murder, and remanded for resentencing. Within one year of resentencing hearing, but more than a year after remand, Baker filed K.S.A. 60-1507 motion alleging ineffective assistance of trial counsel. District court dismissed the motion as untimely. Court of Appeals reversed, holding the time limitation under K.S.A. 60-1507 began 10 days after resentencing. 42 Kan. App. 2d 949 (2009). State petitioned for review.
ISSUE: Time for filing K.S.A. 60-1507 motion
HELD: Issue of first impression. Construing K.S.A. 60-1507 as a whole and in harmony with Supreme Court Rule 183, under facts of this case, the one-year time limitation in which to file a K.S.A. 60-1507 motion does not begin until the time to appeal from the resentencing expires. Judgment of Court of Appeals is affirmed. Judgment of district court is reversed and case is remanded.
STATUTES: K.S.A. 22-3602(a), -3608; and K.S.A. 60-1507, -1507(a), -1507(c), -1507(f), -1507(f)(1)(i)
FIRST-PARTY NEGLIGENT ENTRUSTMENT MARTELL V. DRISCOLL ET AL. JEFFERSON DISTRICT COURT - REVERSED AND REMANDED NO. 106,429 - JUNE 7, 2013
FACTS: Jerry L. Martell, as conservator for Kim "Travis" Driscoll (collectively referred to as "Driscoll"), filed a petition against Leroy Driscoll (Leroy) and other named defendants because Leroy allowed Driscoll to drive a car belonging to Leroy and others, knowing that Driscoll was incapable of safely driving the car because his license was suspended, he had a drinking problem, had received multiple DUIs, and was a known reckless or incompetent person incapable of safely operating a vehicle. Driscoll subsequently got into a car accident with another vehicle, which resulted in injuries to Driscoll. Driscoll later filed a negligent entrustment claim against Leroy and the other presumptive owners of the vehicle, claiming that they owed him a duty to not give control of the vehicle to him. After filing an answer, Leroy filed a motion to dismiss Driscoll's petition for failure to state a claim, arguing, among other things, that Kansas law does not recognize a first-party negligent entrustment claim. The district court granted Leroy's motion to dismiss. The case was transferred to the Kansas Supreme Court.
ISSUE: First-party negligent entrustment
HELD: Court held that under Kansas law, a claim of negligent entrustment may be based upon knowingly entrusting, lending, permitting, furnishing, or supplying an automobile to an incompetent or habitually careless driver. An incompetent driver is one who, by reason of age, experience, physical or mental condition, or known habits of recklessness, is incapable of operating a vehicle with ordinary care. Court concluded that (1) Kansas law recognizes a first-party negligent entrustment claim; (2) if an entrustor owed a duty of care to an entrustee and that duty was breached, then determining the parties' comparative fault for the incident resulting in injuries to the entrustee is a question of fact for the jury to decide. Court held that the issue of the parties' comparative fault remained a fact issue that could not be resolved as a matter of law on a motion to dismiss for failure to state a claim; and (3) Kansas public policy does not prevent an entrustor from being liable for an entrustee's injuries that resulted from the entrustee's negligent use of the entrustor's chattel. Court reversed the district court's decision to dismiss Driscoll's petition and remanded for further proceedings.
DISSENT: Justice Johnson dissented. Justice Johnson would not expand the concept of negligent entrustment to include a cause of action by an entrustee against the entrustor, i.e., first-party negligent entrustment.
STATUTES: K.S.A. 8-258a, -264; and K.S.A. 60-254
TRESPASS AND DUTY OWED WRINKLE V. NORMAN ET AL. JEFFERSON DISTRICT COURT - REVERSED AND CASE REMANDED WITH DIRECTIONS COURT OF APPEALS - REVERSED NO. 103,373 - MAY 17, 2013
FACTS: The appellant, Rodney Wrinkle, was injured in the course of providing aid to a calf that he was escorting onto a neighbor's property. Wrinkle was injured when the calf became entangled in a clothesline. He sued to recover medical damages from the neighbor, and the district court granted the Normans' motion for summary judgment. The district court found that because Wrinkle was a trespasser on the Normans' property, they had breached no duty toward him. The Court of Appeals affirmed by holding that Wrinkle was a trespasser because there was no evidence the cattle were owned by the Normans.
ISSUES: (1) Trespass and (2) duty owed
HELD: Court adopted a modified version of the Restatement (Second) of Torts § 197 (1965), recognizing a privilege to enter or remain on the land of another if it is or reasonably appears to be necessary in order to prevent serious harm to people or property, subject to certain conditions.
Court also adopted a modified version of the Restatement (Second) of Torts § 345 (1965), recognizing that the duty of care to a party entering the property of another under exercise of a privilege is the same as the duty of care to licensees and invitees. Because the district court applied the incorrect standard for the duty of care in this case, Court remanded for the submission of new arguments predicated on the proper duty.
CONCURRING IN PART/DISSENTING IN PART: Justice Rosen agreed with the Court's adoption of the relevant sections of the Restatement of Torts. However, Justice Rosen would not remand for further proceedings, would grant judgment in favor of the Normans and would find as a matter of law that an individual who voluntarily risks danger cannot recover from any resulting injury.
STATUTE: K.S.A. 47-122, -123
WORKERS COMPENSATION, RETALIATORY DISCHARGE, AND EMPLOYMENT CONTRACT PFEIFER V. FEDERAL EXPRESS CORP ON CERTIFICATION OF QUESTIONS OF LAW FROM THE U.S....
To continue reading
Request your trial