Appellate Decisions
| Publication year | 2014 |
| Pages | 38 |
| Citation | Vol. 83 No. 2 Pg. 38 |
Appellate Decisions
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Supreme Court
Civil
CONTRACTS AND OPERATING AGREEMENT IRON MOUND LLC V NUETERRA HEALTHCARE MANAGEMENT LLC ET AL. RILEY DISTRICT COURT - AFFIRMED COURT OF APPEALS - REVERSED NO. 101,647 - DECEMBER 6, 2013
FACTS: Iron Mound and ASC Group LLC entered into an operating agreement on March 26, 1999, for the formation and governance of ASC Midwest LLC. The parties created the company "to develop, own, and operate ambulatory surgical facilities and other healthcare facilities." Nueterra is the successor-in-interest to the ASC Group LLC. Iron Mound alleged that under the operating agreement of ASC, a limited liability company formed by Nueterra and Iron Mound and later dissolved, Iron Mound was entitled to receive a percentage of the gross fees earned by Nueterra under a management agreement entered into after the operating agreement had expired. The district court granted Nueterra's second motion for summary judgment, denied Iron Mound's cross-motion, and dismissed the action. The district court determined that while the parties to the operating agreement could have reserved or extended rights beyond termination of the operating agreement, their intent to do so must have been explicitly stated. But the court found the operating agreement silent regarding future management agreements or the survival of rights upon termination or expiration of the operating agreement. The Court of Appeals reversed and found the operating agreement to be ambiguous and unresolved issues of fact remained regarding Iron Mound's entitlement to a percentage of fees under the management agreement.
ISSUES: (1) Contracts and (2) operating agreement
HELD: Court reinstated the district court's summary judgment ruling in favor of Nueterra. Court concluded the unambiguous terms of the operating agreement rendered it inapplicable to the fees received by Nueterra under the management agreement.
STATUTES: K.S.A. 20-3018; and K.S.A. 60-2101
HABEAS CORPUS STATE V. HOLT GEARY DISTRICT COURT – AFFIRMED NO. 105,854 - DECEMBER 6, 2013
FACTS: Holt convicted in 1994 of offenses, including first-degree murder. Convictions and sentence affirmed in direct appeal. Numerous post-conviction proceedings filed thereafter in state and federal court. In 2010 Holt filed a motion for a new trial, which district court dismissed as successive and untimely. Holt appealed on abuse of discretion claim, arguing the time-limiting language in K.S.A. 2012 Supp. 22-3501(1) is directory rather than mandatory, and the district court should have treated motion as seeking habeas relief under K.S.A. 60-1507. He also claimed ineffective assistance of counsel in Holt's first 60-1507 hearing.
ISSUES: (1) Time limit on filing motion for new trial, (2) motion for habeas relief under K.S.A. 60-1507, and (3) ineffective assistance of 60-1507 counsel
HELD: Time limit set in K.S.A. 2012 Supp. 22-3501(1) for motions for new trial based on grounds other than newly discovered evidence is examined under State v. Bradley, 246 Kan. 316 (1990), and the four-factor analysis in State v. Raschke, 289 Kan. 911 (2009). All support a reading that the language "shall be made" should be read as mandatory. No abuse of trial court's discretion in dismissing Holt's motion as untimely.
Even if motion is treated as a 60-1507 claim, it was filed well beyond the time limit in K.S.A. 60-1507(f)(1)(i), and Holt failed to demonstrate that an extension was necessary to prevent manifest injustice.
Holt's claim of ineffective assistance of counsel at his first 60-1507 hearing in 1997, raised for first time on appeal, was not considered.
STATUTES: K.S.A. 2012 Supp. 22-3210, -3501, -3501(1), -3502, -3608(c); K.S.A. 2010 Supp. 22-3501; K.S.A. 2009 Supp. 22-3210(e); K.S.A. 22-3501, -3504, -3601(b), 60-1507, 1507(f), -1507(f)(1)(i),-1507(f)(2); K.S.A. 22-3502 (Furse); and K.S.A. 223501(1) (Ensley 1988)
HABEAS CORPUS MAKTHEPHARAK V. STATE SEDGWICK DISTRICT COURT – AFFIRMED NO. 105,932 - DECEMBER 27, 2013
FACTS: Makthepharak charged as juvenile on charges related to home invasion and murder. District court granted state's motion for adult prosecution. Makthepharak's convictions and sentences for first-degree felony murder, aggravated burglary, and criminal possession of firearm were affirmed on appeal. 276 Kan. 563 (2003). In 2010 Makthepharak filed pro se motion to correct illegal sentence and for appointment of counsel. District court denied the motion without a substantive hearing or appointment of counsel. Makthepharak appealed, claiming that the district court lacked jurisdiction to impose sentence because Makthepharak was never properly certified for adult prosecution, and alternatively, that the district court improperly construed his pro se motion. He also claimed that the district court's summary denial of K.S.A. 22-3504 motion was fundamentally unfair, and alternatively claimed he was entitled to assistance of counsel during the court's initial examination of the motion.
ISSUES: (1) Procedural claims - motion to correct illegal sentence, (2) summary denial of motion to correct illegal sentence and certification for adult prosecution, and (3) construing the pro se motion
HELD: Makthepharak made no persuasive argument for revisiting or abandoning the longstanding interpretation of K.S.A. 223504 as not requiring a substantive proceeding and assistance of counsel in all cases, and that the statute's protections do not apply when a court summarily denies a motion to correct an illegal sentence.
The district court properly considered statutory factors in K.S.A. 38-1636(e). Because Makthepharak was properly certified as an adult under the statute, the district court had jurisdiction over the criminal trial. Makthepharak's sentence was therefore lawful.
Although the district court erred in part by construing Makthepharak's motion as an improper method of attack and perhaps as seeking unavailable relief, Makthepharak was not prejudiced because his claim was still considered and properly denied on its merits.
STATUTES: K.S.A. 2012 Supp. 22-3601(b)(3); K.S.A. 2012 Supp. 38-2347(e); K.S.A. 22-3504, -3504(1); K.S.A. 38-1601 et seq., -1636(e); and K.S.A. 60-1507
SERVICE AND SUBSTANTIAL COMPLIANCE FISHER V. DECARVALHO ELLIS DISTRICT COURT - REVERSED AND REMANDED WITH DIRECTIONS COURT OF APPEALS – REVERSED NO. 104,644 - DECEMBER 13, 2013
FACTS: Fisher attempted to commence a medical malpractice action against DeCarvalho, M.D., by mailing the summons and petition via unrestricted certified mail, sent to the doctor's business address. The doctor actually received the petition and filed an answer that asserted several affirmative defenses, including insufficiency of process, lack of personal jurisdiction, and a statute of limitations bar. After participating in the discovery process for a time, the doctor filed a motion to dismiss, alleging an absence of personal jurisdiction because Fisher's attempted certified mailing did not comply with the requirements of K.S.A. 60-304(a) to effect a valid service of process. The district court dismissed the lawsuit with prejudice, finding that Fisher had failed to substantially comply with the statutory requirements for service of process by return receipt mail delivery, that the defendant's actual notice of the lawsuit did not confer personal jurisdiction on the district court absent a proper service of process, and that Fisher was not entitled to the additional time to effect service after the adjudication of invalidity, pursuant to K.S.A. 60-203(b), because her initial attempt at service did not appear to be valid. The Court of Appeals affirmed the district court's dismissal.
ISSUES: (1) Service and (2) substantial compliance
HELD: The Court agreed with the results reached on the issues of substantial compliance and actual notice, but it held that Fisher should have been afforded the opportunity, within the time limits set forth in K.S.A. 60-203(b), to attempt to effect a valid service of process after the district court's adjudication of invalidity. The Court reversed and remanded with directions for the district court to afford the plaintiff that opportunity.
STATUTES: K.S.A. 12-105b; K.S.A. 20-3018; and K.S.A. 60102, -103, -203(b), -204, -303(e), -304(a), -513(a)(7), -2101(b)
NOISE ORDINANCE CITY OF LINCOLN CENTER V. FARMWAY CO-OP INC. ET AL. LINCOLN DISTRICT COURT - AFFIRMED IN PART, REVERSED IN PART, AND...
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