Appellate Decisions
| Publication year | 2017 |
| Pages | 50 |
Supreme Court
Attorney Discipline
ORDER OF DISBARMENT
IN RE FAHRENHOLTZ
NO. 116,544 — APRIL 14, 2017
FACTS: After she did not file an answer or appear, a panel of the Kansas Board for Discipline of Attorneys determined that Fahrenholtz violated KRPC 1.1 (competence), 1.3 (communication), 1.15(a) (safekeeping property), 1.16 (termination of representation), 3.2 (expediting litigation), and Rule 211(b) (failure to file an answer in a disciplinary proceeding). The violations arose after Fahrenholtz was disbarred in two states and suspended in Kansas for failing to comply with annual licensing requirements. The Office of the Disciplinary Administrator learned of the discipline in other states and docketed a complaint here. But Fahrenholtz did not respond to any of the letters sent by the office and did not file an answer to the formal complaint.
HEARING PANEL: After concluding that Fahrenholtz received proper notice of hearing, the hearing panel agreed with the disciplinary administrator and recommended disbarment.
HELD: The court adopted the hearing panel's findings and conclusions. The court also agreed with the recommended discipline of disbarment.
ORDER OF DISBARMENT
IN RE DENNIS JAMES MOLAMPHY
NO. 116,804 — APRIL 11, 2014
FACTS: In a letter signed April 7, 2017, Dennis James Molam-phy voluntarily surrendered his license to practice law in Kansas. At the time he surrendered his license, review was pending before the court on the final hearing report from the disciplinary hearing panel. The hearing panel found that Molamphy violated multiple rules of professional conduct.
HELD: After examining the files of the office of the Disciplinary Administrator, the court found that the surrender of Molamphy's license should be accepted and that he should be disbarred.
Civil
CIVIL PROCEDURE — JURISDICTION — STANDING — UNIFORM COMMERCIAL CODE
FV-I, INC. V. KALLEVIG
MIAMI DISTRICT COURT — COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART,
DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART, CASE REMANDED
NO. 111,235 — APRIL 21, 2017
FACTS: The Kallevigs entered into a note and mortgage concerning residential property. The mortgage was assigned to FV-I, which almost immediately filed a petition to foreclose the mortgage. Attached to the petition was a copy of the mortgage and a note with an undated stamp endorsement from the original lender to an asset management group. Bank of the Prairie was named as a party in the foreclosure petition because BOP had three mortgages on the Kallevigs' property; FV-I claimed that all three mortgages were junior to FV-I's claim. BOP counterclaimed and questioned whether FV-I had standing to enforce the note. The district court granted BOP's motion for summary judgment, finding that FV-I lacked standing because it failed to establish ownership of the note as of the date the foreclosure petition was filed. Specifically, the district court held that the mortgage and note had split, rendering FV-I's mortgage unenforceable and allowing BOP's mortgages to take priority. The Court of Appeals reversed, remanding the case for fact finding as to when FV-I took possession of the note. On remand, the district court used the hearsay rules to exclude evidence of two endorsements. Based on the exhibit without the two endorsements, the district court found that FV-I failed to establish that it had enforcement rights in the note. Finding that the note and mortgage had split, the district court again ruled that BOP's mortgage had priority. The Court of Appeals affirmed and the petition for review was granted.
ISSUES: (1) Whether FV-I had standing to initiate foreclosure proceedings; (2) did the district court improperly exclude signatures; (3) can possession of the mortgage without the note establish standing?
HELD: In most mortgage foreclosure proceedings, a note is necessary to establish the contractual terms and prove injury. In these cases, the foreclosing plaintiff must show that it has been injured by establishing that it is entitled to enforce the note. Under the UCC, the possession of negotiable paper proves prima facie the holder's ownership. That standing must exist at the time the foreclosure action is commenced. The signatures were wrongly excluded because they were not offered for the truth of the matter asserted. The defendant bears the burden of proving that the signatures are invalid. The district court's erroneous exclusion kept FV-I from establishing when it acquired the note. Enforcement rights in the note are necessary to demonstrate a default that gives rise to the power to foreclose on the mortgage.
STATUTES: K.S.A. 2016 Supp. 60-460(m), 84-1-201(a) (21) (A), -1-201(21), -3-104, -3-205(b), -3-308, -3-308(b), -3-401(b); K.S.A. 58-2323, 60-217
ADMINISTRATIVE LAW—CIVIL PROCEDURE
BOARD OF COUNTY COMM'RS V. KANSAS RACING & GAMING COMM'N
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 115,978 — MAY 5, 2017
FACTS: Castle Rock Casino Resort, LLC and the Board of County Commissioners of Cherokee County filed this action after the Kansas Lottery Commission selected Kansas Crossing Casino, LLC to manage a state-owned and operated casino in Southeast Kansas. The Lottery Commission rejected Castle Rock's proposal and suggested the state would be better served by a smaller casino in Crawford County, primarily because Castle Rock's proposed site was directly across the state line from a large casino in Oklahoma. After the Lottery Commission made its selection, the Kansas Racing and Gaming Commission received many public comments, many of which disagreed with the Lottery Commission's choice. After a public hearing, the KRGC voted unanimously to approve Kansas Crossing's proposed facility. Cherokee County sought review in district court, as did Castle Rock. The district court denied the requests for relief, finding that the decision to select Kansas Crossing was not arbitrary, capricious, or unreasonable in light of the Southeast Kansas market. The motion to alter or amend was denied.
ISSUES: (1) Was the scope of discovery appropriate; (2) was there error when ruling on the motion to amend the petitions; (3) was there error in refusing to allow an evidentiary hearing; (4) did the KRGC misapply the lottery act by failing to make required findings; (5) was the KRGC's decision supported by sufficient evidence?
HELD: The scope of discovery was within the trial court's discretion and it was unclear whether traditional discovery was available in proceedings under the KJRA. It did not matter in this case, though, since the district court disallowed discovery because the requested discovery did not relate to issues raised in the petition for judicial review. Because Appellants did not brief the issue of whether amended petitions would have prejudiced the defendants, the district court was affirmed on that issue. The request for an evidentiary hearing was a duplicative renewed motion for discovery that was properly denied. The KRGC has broad discretion to decide which gaming contract is best for the state. The statute does not specifically require findings of fact. The record as a whole shows substantial evidence to support the choice of Kansas Crossing.
STATUTES: K.S.A. 2016 Supp. 74-8702(f)(2), -8734(b), -8734(g), -8734(h) -8735, -8735(a), -8735(h), -8736(b), -8736(e), -8737, 77-603(a), -614(b), -614(c), -621(a), -621(c), -621(d); K.S.A. 2015 Supp. 74-8736(b), 77-621(c); K.S.A. 2007 Supp. 74-8702(f), -8734(a); K.S.A. 77-606, -619(a)
APPEALS— CRIMINAL PROCEDURE— POSTCONVICTION REMEDIES—SENTENCES
KIRTDOLL V. STATE
SHAWNEE DISTRICT COURT—AFFIRMED
NO. 114,465 — MAY 12, 2017
FACTS: Kirtdoll's 2004 conviction and hard 50 sentence were affirmed in his direct appeal which included an Apprendi challenge to his hard 50 sentence. No relief was granted in his two post-conviction motions under K.S.A. 60-1507. He filed a post-conviction motion in 2013, citing Alleyene v. United States, 570 U.S.__ (2013). District court analyzed the motion under K.S.A. 22-3504 and K.S.A. 60-1507 and denied relief, finding a motion to correct an illegal sentence could not be used to raise a constitutional claim, and the change in the law in Alleyne did not excuse a...
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