Appellate Decisions
| Publication year | 2015 |
| Pages | 26 |
| Citation | Vol. 84 No. 8 Pg. 26 |
Supreme Court
Attorney Discipline
DISBARMENT
IN RE ROBERT L. BEZEK JR.
ORIGINAL PROCEEDING IN DISCIPLINE
NO. 12,691 - JUNE 30, 2015
FACTS: In a letter signed June 5, 2015, addressed to the Clerk of the Appellate Courts, respondent Bezek, an attorney admitted to practice law in Kansas, voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217 (2014 Kan. Ct. R. Annot. 403). At the time the respondent surrendered his license, complaints had been docketed by the disciplinary administrator's office for investigation. The complaints alleged that the respondent violated Kansas Rules of Professional Conduct 1.1 (2014 Kan. Ct. R. Annot. 456) (competence); 1.3 (2014 Kan. Ct. R. Annot. 475) (diligence); 1.4 (2014 Kan. Ct. R. Annot. 495) (communication); 8.3 (2014 Kan. Ct. R. Annot. 678) (reporting professional misconduct); and 8.4 (2014 Kan. Ct. R. Annot. 680) (misconduct).
HELD: The Court, having examined the files of the office of the disciplinary administrator, held that the surrender of the respondent's license should be accepted and that the respondent should be disbarred.
CIVIL
ADVERSE POSSESSION
RUHLAND V. ELLIOT ET AL.
CLOUD DISTRICT COURT — REVERSED ON
ISSUE SUBJECT TO REVIEW COURT OF APPEALS — AFFIRMED ON
ISSUE SUBJECT TO REVIEW
NO. 108,825 — JULY 10, 2015
FACTS: This case arises from a dispute over the ownership of a 5.5-acre tract of real estate in Cloud County. The district court determined that Keith Elliott, who had at one time deeded away the land to his then-wife's daughter (Ruhland), had regained possession of the disputed tract through adverse possession. The Court of Appeals reversed on the grounds that Keith had only permissively occupied the disputed tract after he deeded it to Ruhland, a fact that defeated any adverse possession claim by Keith or his heirs. Ruhland v. Elliott, 2013 WL 4046605 (Kan. App. 2013).
ISSUE: Adverse possession
HELD: Court held Suzann Elliott, Keith's heir, failed to rebut the presumption of temporary possession because she pointed to no evidence that Keith explicitly renounced Ruh-land's title by affirmatively asserting a hostile claim of title in himself and bringing this assertion to Ruhland's attention. Thus, Suzann provided no evidence "operat[ing] to convert what appeared to be a subservient and permissive possession into a hostile and adverse one." Court concluded that Keith's possession was permissive. Suzann cannot prove the material element of adversity by clear and positive proof, which defeats her claim of adverse possession.
STATUTES: K.S.A. 20-3018; and K.S.A. 60-211, -503, -2101
CHILD SUPPORT AND
POST-JUDGMENT INTEREST
CAIN V. JACOX
RILEY DISTRICT COURT - REVERSED
COURT OF APPEALS – REVERSED
NO. 109,079 — JULY 24, 2015
FACTS: Cain appealed from the denial of her motion to recover post-judgment interest on unpaid child support judgments from Jacox after a Kansas child support order had been registered in Texas. The district court denied the motion holding that the doctrine of res judicata barred Cain's claim. The Court of Appeals affirmed.
ISSUES: (1) Child support and (2) post-judgment interest
HELD: Court held that because the post-judgment interest due and owing on the child support arrearages had never been reduced to an amount certain by the Riley County District Court, SRS was legally unable to pursue the recovery of that amount in Texas during the enforcement proceeding pursuant to UIFSA. And because the substance of the Texas attorney general's claim in the Texas court was limited by the recovery sought by SRS, the Texas attorney general had no interest or stake in recovering or enforcing any post-judgment interest amounts owed under Kansas law. Court held that Cain, on the other hand, clearly did have such a stake. Given this, Court concluded that Cain and the Texas attorney general did not share an interest that was "really and substantially" the same. There was no privity and the "same party" element of the res judicata test was not met. Court reversed and remanded for further proceedings.
STATUTES: K.S.A. 16-204; K.S.A. 23-2216; and K.S.A. 60-2101
DUI AND RIGHT TO ATTORNEY
DUMLER V. KANSAS DEP'T OF REVENUE
RUSSELL DISTRICT COURT – REMANDED
WITH DIRECTIONS
COURT OF APPEALS — REMANDED
WITH DIRECTIONS
NO. 106,748 — JULY 24, 2015
FACTS: On April 17, 2010, a law enforcement officer stopped Dumler for committing a traffic violation, which led to his arrest for driving under the influence (DUI). The officer transported Dumler to the sheriff's office and provided Dumler with the implied consent notices before requesting that he submit to a breath alcohol test. One of the implied consent notices informed Dumler that he had the right, after the completion of testing, to consult with an attorney and secure additional testing. The officer also read Dumler his Miranda rights, which, of course, include the right to an attorney. Even though Dumler made repeated requests to confer with an attorney before testing, the arresting officer acknowledged that he never gave Dumler an opportunity to confer with an attorney. Dumler did not repeat his request for an attorney or request additional testing after his breath test failure. The arresting officer provided Dumler with an officer's certification and notice of suspension of driving privileges and apparently placed him in a holding cell, where he remained for an hour or so before posting bond and being released. The Kansas Department of Revenue (KDR) suspended Dumler's license. Both the district court and the Court of Appeals majority affirmed the KDR's license suspension based on the timing of Dumler's requests to consult with an attorney. Because Dum-ler did not ask to consult with an attorney after he failed the breath test, he had not invoked his statutory right to an attorney and, accordingly, that right was not violated. Judge Atcheson concurred.
ISSUES: (1) DUI and (2) right to attorney
HELD: Court held there is no bright-line rule requiring a person to invoke his or her statutory right to counsel after the completion of breath or blood alcohol testing, so long as the request pertained to post-testing consultation. Court stated that rather than focusing on the subject matter of the desired consultation, the district court should have determined whether Dumler was requesting a post-testing consultation. Court stated that a person has no right to consult with counsel before deciding whether to take the requested alcohol testing. But after the test, a person has the unrestricted right to consult with an attorney. Given that the district court apparently applied an incorrect legal standard on the question of whether Dumler's post-testing right to counsel was violated, a remand would be in order. Upon remand, the district court shall determine...
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