Appellate Decisions
| Publication year | 2018 |
| Pages | 60 |
SUPREME COURT
ATTORNEY DISCIPLINE ORDER OF DISBARMENT IN THE MATTER OF KENNETH J. GENIUK NO. 118,226—FEBRUARY 23, 2018
FACTS: After a formal complaint was filed, and after Geniuk failed to respond or answer, a hearing panel determined that Geniuk violated KRPC 5.5(a) and (b) (unauthorized practice of law); 7.1(a) (communications concerning a lawyer's services); 8.3(a) (reporting professional misconduct); 8.4(d) (engaging in conduct prejudicial to the administration of justice); Rule 207(c) (failure to report action); 208(c) (failure to notify Clerk of the Appellate Courts of change of address); and 211(b) (failure to file answer in disciplinary proceeding). Geniuk was admitted to the Kansas bar in 2007 and the Missouri bar in 2008. His Kansas license was suspended in 2013 for failure to comply with all annual licensure requirements. Despite the suspension, Geniuk continued to practice in Kansas. After a Kansas judge asked Geniuk about his status, Geniuk informed the court that he was licensed in Missouri. The court did not believe that any rule allowed Geniuk to appear in Kansas and he was asked to leave the court. After a complaint was filed and during the investigation, it was discovered that Geniuk's web site advertised that he provided legal services in Kansas.
HEARING PANEL: After considering the aggravating factors and the lack of mitigators, the hearing panel unanimously recommended that Geniuk be indefinitely suspended.
HELD: Geniuk did not appear at the hearing before the court. Because he filed no exceptions, the hearing panel's report was admitted. Geniuk's failure to appear was considered to be an additional aggravating factor, and a majority of the court ordered that he be disbarred. A minority of the court would have imposed the lesser sanction of indefinite suspension.
ORDER OF SUSPENSION IN THE MATTER OF LANCE M. HALEY NO. 118,378—MARCH 2, 2018
FACTS: A hearing panel determined that Haley violated KRPC 1.3 (diligence), 3.2 (expediting litigation), 5.5(a) (unauthorized practice of law), 8.4(d) (engaging in conduct prejudicial to the administration of justice), and 8.4(g) (engaging in conduct adversely reflecting on lawyer's fitness to practice law). Haley's license to practice law in Missouri was suspended in 2007 after he failed to file an appeal in federal court. At the same time, Haley failed to complete his annual registration requirements in Kansas, and his Kansas law license was suspended. It was not until Haley began to explore reinstatement that the Kansas disciplinary administrator learned of Haley's misconduct suspension in Missouri. Haley's Missouri license was reinstated in 2015, although he was placed on probation. But he never addressed the reciprocal discipline issues that existed in Kansas.
HEARING PANEL: Most of the conduct addressed by the hearing panel occurred in Missouri. But Haley did self-report one instance of unauthorized practice which occurred when he prepared a codicil for his mother's will. While Haley's experience with the practice of law was an aggravating factor, there were significant mitigating factors including mental health conditions and Haley's cooperation with the process. The disciplinary administrator recommended that Haley be suspended for one year, with that suspension stayed so that Haley could complete a term of probation. The hearing panel agreed with the disciplinary administrator and made that recommendation to the court.
HELD: After considering the hearing report, the court imposed a one-year disciplinary suspension. If Haley is able to satisfy all administrative requirements to end his administrative suspension, he will be allowed to petition the court for an order to suspend the disciplinary suspension and the imposition of a two-year probation period.
ORDER OF DISCHARGE FROM PROBATION IN THE MATTER OF ELIZABETH ANNE HUEBEN NO. 113,928—MARCH 1, 2018
FACTS: In October 2015, the court stayed the imposition of a two-year suspension and placed Hueben on probation for two years, with specific conditions. In November 2017, Hue-ben filed a motion for discharge from probation along with evidence of her compliance. That compliance was confirmed by the Office of the Disciplinary Administrator.
HELD: After reviewing the motion, affidavits, and recommendation of the disciplinary administrator, the motion is granted. Hueben is discharged from probation and this matter is closed.
ORDER OF INDEFINITE SUSPENSION IN THE MATTER OF EDGAR HULT NO. 118,204—FEBRUARY 16, 2018
FACTS: The Disciplinary Administrator's Office filed a formal complaint against Hult alleging multiple violations of the KRPC. A hearing panel determined that Hult violated KRPC 1.1 (competence), 1.3 (diligence), 1.4(a) (communication), 1.5 (fees), 1.15(a) (safekeeping property), 1.16(d) (termination of representation), 3.2 (expediting litigation), 3.4(c) (fairness to opposing party and counsel), 8.4(d) (engaging in conduct prejudicial to the administration of justice), 8.3(a) (reporting professional misconduct), Rule 207(c) (failure to report action), and Rule 211(b) (failing to file an answer in a disciplinary proceeding). The complaints involved Hult's immigration practice, and subsequent discipline, in Iowa as well as in Kansas.
HEARING PANEL: The hearing panel found that, through a pattern of misconduct, Hult injured his clients. Although the hearing panel did determine that Hult suffers from anxiety and depression, it agreed with the disciplinary administrator that indefinite suspension would be an appropriate sanction.
HELD: After noting that Hult stipulated to the violations, the Court considered the appropriate discipline. Hult agreed that indefinite suspension was an appropriate sanction, and the court imposed that discipline.
ORDER OF DISBARMENT IN THE MATTER OF KEVIN M. MANZ BAR DOCKET NO. 10687—FEBRUARY 14, 2018
FACTS: In a letter signed January 29, 2018, Kevin M. Manz voluntarily surrendered his license to practice law. At the time of surrender, a disciplinary compliant was pending which alleged that Manz committed misconduct after being convicted for three felony convictions of grand theft.
HELD: The court accepted the surrender and Manz was disbarred.
CIVIL
IMMUNITY—NEGLIGENCE—TORTS PATTERSON V. COWLEY COUNTY COWLEY DISTRICT COURT—COURT OF APPEALS IS AFFIRMED DISTRICT COURT IS AFFIRMED IN PART AND REVERSED IN PART NO. 114,705—MARCH 16, 2018
FACTS: Jason Patterson and Cortney Brewer drowned when they drove their vehicle off a roadway and into the Arkansas River. The road, which was located in Bolton Township in Cowley County, abruptly ended at the river. The county placed a "Pavement Ends" sign where the road transitioned from paved, county road to unpaved, township road. Beyond that, there was no signage to warn drivers that the road ended and the river began. After the accident, Patterson's widow filed suit against the county and the township, claiming that all parties negligently failed to provide adequate warnings and barricades. The district court granted summary judgment to the township, finding that it had no legal duty to erect any signage or barricades. As to the county, the district court found that the county was immune under the Kansas Tort Claims Act for failing to post an advisory speed plaque. But the district court refused to enter judgment on the issue of whether the county was negligent for failing to place a "Dead End" or "No Outlet" sign at the end of the pavement. The court similarly failed to find immunity under the KTCA's recreational use exception. Patterson and the county were each allowed to pursue interlocutory appeals. The court of appeals affirmed that the county was not entitled to the recreational use or inspection immunity but reversed the district court's ruling on the county's discretionary function immunity. The Supreme Court granted review.
ISSUES: (1) Township duty to install traffic-control devices; (2) county duty to conduct an engineering study; (3) county discretionary function immunity;
HELD: The township had no statutory duty to place or maintain traffic-control devices. And there is no statute that provides the township with the authority to adopt ordinances or regulations relating to vehicular traffic. In that absence, the township had no duty to erect traffic-control devices and was entitled to summary judgment. The Manual on Uniform Traffic Control Devices does not require periodic surveys of the county's roadways that are meant to preemptively spot trouble. All traffic-control devices placed by local authorities must comply with the MUTCD. In this case, the MUTCD did not require the signs sought by Patterson. In the absence of a mandate, the county's failure to post a sign was a discretionary function and entitled to immunity. Because claims against the county are resolved, it is unnecessary to address analysis of the recreational use and inspection immunity defenses.
STATUTES: K.S.A. 2017 Supp. 8-1432. -2005, 68-101(e), -526, -526(b), 75-6102, -6104(h), 80-101; K.S.A. 8-1432, -1442, -1447, -1512(a), -2003, 68-523, 75-6101, 80-301(a), -306, -307
CRIMINAL
CRIMINAL LAW—CRIMINAL PROCEDURE—SENTENCES—STATUTES STATE V. BUELL SHAWNEE DISTRICT COURT—REVERSED, SENTENCE VACATED, REMANDED COURT OF APPEALS—REVERSED
FACTS: Buell convicted of robbery and attempted kidnapping. In calculating Buell's criminal history, sentencing court classified Buell's two prior Florida burglary juvenile adjudications as person felonies. Buell appealed, arguing the Florida adjudications should not have been classified as person felonies because Kansas had no comparable offense. Court of appeals affirmed Buell's criminal history and sentence, finding the burgled structure requirements in the...
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