Appellate Decisions
| Jurisdiction | Kansas,United States |
| Citation | Vol. 86 No. 7 Pg. 67 |
| Pages | 67 |
| Publication year | 2017 |
July, 2017
SUPREME COURT
ATTORNEY DISCIPLINE
ORDER OF DISBARMENT
IN RE ALVIN R. LUNDGREN
NO. 117, 201— MAY 26, 2017
FACTS: Lundgren is licensed in Kansas but he resides in Utah. Lundgren was found to have violated KRPC 1.15(a) and (d) (safekeeping property), 8.3(a) (reporting professional misconduct), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), Rule 207(c) (failure to report action), and Rule 208(c) (failure to notify Clerk of the Appellate Courts of a change of address). The violations stemmed from an allegation that Lundgren practiced law in California without a license. It was also alleged that Lundgren was not truthful during disciplinary proceedings in several states, and that he misappropriated client funds while practicing in Utah. Lundgren failed to notify the disciplinary administrator of discipline imposed in other states.
HEARING PANEL: The hearing panel determined that Lundgren's conduct in other states constituted a disciplinary violation in Kansas. The disciplinary administrator rejected Lundgren's request for probation and recommended that he be disbarred. The hearing panel adopted the disciplinary administrator's recommendation.
HELD: The court adopted the hearing panel's findings of fact. Lundgren failed to appear at the hearing before the court or to provide written testimony. The court adopted the hearing panel's recommendation and ordered that Lundgren be disbarred.
ORDER OF DISBARMENT
IN RE NWAKANMA
NO. 116,773—JULY 7, 2017
FACTS: Nwakanma was accused of violating KRPC 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping of property), 1.16 (termination of representation), 3.4 (fairness to opposing party and counsel), 8.1 (bar admission and disciplinary matters), 8.4 (misconduct), and Kansas Supreme Court Rule 207 (cooperation). Nwakanma lives and practices in Texas and was accused of violating several Texas Disciplinary Rules of Professional Conduct. Nwakanma's Kansas license has been suspended on multiple occasions for failing to comply with annual requirements, and it was suspended at the time of the disciplinary hearing. Nwakanma was never licensed independently in Texas. At the time of the hearing, Nwakanma had no active license to practice law in any jurisdiction.
HEARING PANEL: The hearing panel determined that Nwakan-ma's actions violated the Kansas Rules of Professional Conduct. After considering the aggravating and mitigating factors, the hearing panel recommended that Nwakanma be disbarred.
HELD: Nwakanma filed no exceptions to the hearing panel's final report, and the panel's findings of fact were deemed admitted. Nwakanma failed to appear at the hearing before the court, despite being allowed a continuance. The court upheld the discipline of disbarment.
ORDER OF DISBARMENT
IN THE MATTER OF MARK J. SCHULTZ
NO. 13,619—MAY 31, 2017
FACTS: In a letter signed May 17, 2017, Schultz voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217. At the time he surrendered his license, a complaint had been docketed with the office of the Disciplinary Administrator for investigation. The complaint alleged violations of KRPC 1.15 (safekeeping property) and 8.4(b) and (c) (misconduct).
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 he should be disbarred.
PUBLISHED CENSURE
IN RE JEFFERY A. SUTTON
NO. 117,357—MAY 26, 2017
FACTS: Sutton was accused of violating KRPC 1.4(b) (communication), 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation), and 8.4(d) (engaging in conduct prejudicial to the administration of justice). The complaint related to Sutton's conduct with his client in a post-divorce matter.
HEARING PANEL: The panel acknowledged that Sutton's client was difficult. And Sutton fully complied with the investigation and produced good character letters from colleagues. The disciplinary administrator asked for a short suspension. Sutton's counsel asked for an informal admonition. The hearing panel recommended public censure.
HELD: The court adopted the hearing panel's findings and conclusions. After finding that Sutton's conduct was negligent the court imposed discipline of public censure.
ORDER OF DISBARMENT
IN THE MATTER OF DANIEL A. WILLIAMS
NO. 18,779—MAY 31, 2017
FACTS: In a letter signed May 22, 2017, Williams voluntarily surrendered his license to practice law in Kansas, pursuant to Supreme Court Rule 217. At the time he surrendered his license, the office of the Disciplinary Administrator had filed a formal complaint alleging violations of KRPC 1.1 (competence), 1.3 (diligence), 1.5 (fees), 1.15 (safekeeping property), 1.16 (terminating representation), 8.1 (disciplinary matters), 8.4 (misconduct), and Supreme Court Rule 207 (cooperation).
HELD: The court examined the files of the office of the Disciplinary Administrator and found that the surrender of Williams' license should be accepted, and that he should be disbarred.
CIVIL
CONSTITUTIONAL LAW—CRIMINAL LAW—JUVENILE JUSTICE CODE—SENTENCING
IN THE MATTER OF A.D.T. WYANDOTTE DISTRICT COURT—AFFIRMED
NO. 114,834—JUNE 2, 2017
FACTS: In an Extended Juvenile Jurisdiction Prosecution (EJJP) of charges against a13-yr old, A.D.T. pled guilty to first-degree premeditated murder. District judge imposed juvenile sentence with substance abuse evaluation, and a hard-25 adult sentence which was statutorily stayed conditioned upon A.D.T's successful completion of the juvenile sentence. A.D.T. completed the incarceration portion of the juvenile sentence without receiving the court-recommended substance abuse treatment, and was placed on conditional release which he violated twice by testing positive for drugs. District court revoked A.D.T.'s juvenile sentence and imposed the adult life sentence. A.D.T. appealed, arguing manifest injustice to impose life sentence for dirty UA's, and claiming he did not receive proper notice of what conduct would cause the district court to invoke the adult sentence.
ISSUE: Violating conditional release in an extended jurisdiction juvenile prosecution
HELD: EJJP statutes were reviewed. District judge correctly held she had no discretion to modify the revocation of A.D.T.'s juvenile sentence, and that she was required to execute A.D.T.'s adult sentence and transfer jurisdiction to the adult criminal court. There was no application of the manifest injustice concept to a nondiscretionary, statutorily required judicial order where constitutionality of underlying statute was not challenged. And facts in case did not support a due process claim of being denied fair notice. On issues raised in the appeal, district court was affirmed.
CONCURRENCE (Rosen, J.): Concurred in the result, but identified and discussed areas of concern not raised in this case, including the possibility that the EJJP sentence or the failure to provide substance abuse treatment resulted in Eighth Amendment violations, and the possibility that the failure to provide substance abuse treatment resulted in a Fourteenth Amendment violation or necessitated reconsideration of A.D.T.'s original sentence. Recent changes to EJJP statutes were noted which would have exempted A.D.T. from the adult sentence, made it unlikely the juvenile sentence would have ben revoked for dirty UA's, or even if still subject to EJJP, the judge would have had authority to reconsider terms of that adult sentence before its imposition.
STATUTES: K.S.A. 2016 Supp. 38-2347(a)(1), -2364(a)(2), -2364(b); K.S.A. 2015 Supp. 22-3601(b), 38-2301, -2361(a), -2364(a)(1), -2364(a)(2), -2364(b); K.S.A. 2013 Supp. 38-2364; K.S.A. 2007 38-2301 et seq., -2347(f)(2), -2369(a)(1)(A)
CIVIL PROCEDURE—STATUTE OF LIMITATIONS
LOZANO V. ALVAREZ
FORD DISTRICT COURT—COURT OF APPEALS IS AF-FIRMED—DISTRICT COURT IS AFFIRMED
NO. 113,060—MAY 26, 2017
FACTS: Lozano filed a tort action against the Alvarezes. That action was dismissed for lack of prosecution. Using the saving statute, the action was re-filed and then dismissed again for lack of prosecution. Lozano filed a third action, again relying on K.S.A. 60-518 to save the filing. The district court granted the Alvarezes' motion to dismiss, finding that K.S.A. 60-518 may only be used once. The Court of Appeals affirmed the dismissal and the Supreme Court accepted review.
ISSUE: May K.S.A. 60-518 be applied more than once
HELD: K.S.A. 60-518 may not be invoked after the expiration of 6 months following the dismissal of the original action that was filed within the statute of limitations. The savings statute does not modify the statute of limitations or create a new one, it merely tolls the statute of limitations under certain circumstances in order to allow for a decision on the merits.
STATUTE: K.S.A. 60-518
ATTORNEYS—DAMAGES
CONSOLVER V. HOTZE
SEDGWICK DISTRICT COURT—COURT OF APPEALS IS REVERSED, DISTRICT COURT IS AFFIRMED
NO. 110,483—JUNE 9, 2017
FACTS: This case was a fee dispute between attorneys Bradley Pistotnik and Stephen Brave. Each represented Consolver at different stages of her legal action. Pistotnik handled the case through discovery and mediation under a contingency fee agreement. The parties reached an agreement for a $300,000 settlement if Consolver could show that further medical treatment was necessary. But before that settlement was finalized, Pistotnik was dismissed as counsel. Pistotnik filed an attorney lien to recover fees plus his portion of the $300,000 settlement. Brave eventually settled the case for $360,000 but there was no agreement about...
To continue reading
Request your trial