Appellate Decisions
| Publication year | 2018 |
| Pages | 65 |
Appellate Decisions
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KANSAS STATE SUPREME COURT
ATTORNEY DISCIPLINE
ORDER OF DISBARMENT
IN THE MATTER OF DAVID BEN MANDELBAUM
NO. 13,026—AUGUST 21, 2018
FACTS: Mandelbaum has been accused of violating Kansas Rule of Professional Conduct 8.4(b) pleading guilty to a felony count of attempting to evade or defeat tax. On the day of his plea, Mandelbaum voluntarily surrendered his license to practice law in Kansas. The court accepted his surrender and he is disbarred.
ORDER OF REINSTATEMENT
IN THE MATTER OF LYLE LOUIS ODO
NO. 114,863—SEPTEMBER 5, 2018
FACTS: Odo's license to practice law in Kansas was suspended for one year in July 2016. In July 2017, Odo filed a petition for reinstatement. After a hearing, the Kansas Board for Discipline of Attorneys recommended that the petition for reinstatement be granted. After careful consideration, the court accepted the panel's findings and grants the petition for reinstatement.
CIVIL
CONTRACT INTERPRETATION
TREAR v. CHAMBERLAIN
LYON DISTRICT COURT—REVERSED AND REMANDED
COURT OF APPEALS—AFFIRMED
NO. 115,819 – AUGUST 24, 2018
FACTS: Trear purchased land from Chamberlain in 1986. The sale contract included a preemptive provision covering an adjoining tract of land; the provision gave Trear the right of first refusal should Chamberlain wish to sell the parcel. In 2013, Chamberlain offered the parcel to Trear for $289,000. The offer stated that it would expire after eight days and that silence would be deemed as a refusal to purchase. Trear did not respond, and Chamberlain listed the parcel for $295,000. The property did not sell; a year later, Chamberlain sold part of the parcel to her daughter for $91,124. At that time, Trear sued, claiming that she violated his right of first refusal. As a remedy, he asked to be able to purchase the land from the daughter for the price that she paid. The district court ruled that the right of first refusal clause violated the rule against perpetuities and was unenforceable. It also held that the clause did not violate the statute of frauds and that Chamberlain did not comply with the provision requiring right of first refusal to Trear. Trear appealed the dispositive rule against perpetuities decision. Chamberlain cross-appealed arguing that she was entitled to judgment on the statute of frauds and contract compliance arguments. The court of appeals reversed, overruling the district court's rule against perpetuities decision. It agreed with the district court on the statute of frauds issue and that Chamberlain did not fully perform under the original purchase contract. The only issue preserved in the petition for review was whether Chamberlain complied with the contractual right of first refusal provision.
ISSUE: (1) Contract interpretation
HELD: Chamberlain initially complied with the contract when she offered to sell Trear the entire parcel for $289,000. He chose not to pursue the offer. Any interpretation that differs from this conclusion reads into the contract something that is not there and is erroneous. Similarly, the contract did not require Chamberlain to again contact Trear and offer him the smaller parcel. But factual issues remain regarding whether Chamberlain acted with good faith and in fair dealing. Because there remain factual questions about whether Chamberlain acted in good faith, this case must be remanded for further factfinding.
CONCURRENCE AND DISSENT (Johnson, J. joined by Beier, J.): The majority's decision is correct regarding the contract interpretation. But there is no need for a remand to determine whether Chamberlain acted in good faith.
STATUTES: No statutes cited
APPELLATE PROCEDURE—CAUSATION
CASTLEBERRY v. DEBROT
SEDGWICK DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 111,105 – AUGUST 24, 2018
FACTS: Castleberry suffered a stroke and, a year later, fell and sustained a fatal head injury. Her heirs sued Dr. DeBrot, claiming that he missed signs of her stroke and that this negligence then caused the fatal injury. A jury found Dr. DeBrot at fault and awarded damages to Castleberry's estate. On appeal, the court of appeals affirmed. Dr. DeBrot's petition for review was granted.
ISSUES: (1) Scope of petition for review; (2) causation instructions; (3) improper closing argument; (4) admission of expert testimony
HELD: In order to preserve an issue for review by the Kansas Supreme Court, the petition for review must list with specificity all issues that will be argued. A general statement about scope will not preserve issues for review. Expert testimony opined that Castleberry's stroke would not have happened had Dr. DeBrot met the standard of care. The court of appeals erred by finding that the causation instruction given was legally inappropriate, although harmless. In actuality, the instruction was both legally and factually appropriate. Castleberry's counsel exceeded the scope of permissible closing argument when he asked the jury whether it wanted "safe or unsafe medicine". But the error was harmless. Expert testimony was required to prove the standard of care, and the witnesses were allowed to explain the applicable standard.
CONCURRENCE (Beier, J., joined by Luckert and Johnson, JJ): The majority's decision is sound and none of the other issues raised before the court of appeals would have changed the outcome here. But Rule 8.03, as it exists now, did not prevent the Supreme Court from reviewing all issues raised by Dr. DeBrot in front of the court of appeals.
STATUTES: K.S.A. 2015 Supp. 60-456; K.S.A. 60-404, -456(b)
JURY INSTRUCTIONS
BIGLOW v. EIDENBERG
SEDGWICK DISTRICT COURT—AFFIRMED
COURT OF APPEALS—AFFIRMED
NO. 112,701 – AUGUST 24, 2018
FACTS: Charla Biglow went to the emergency room suffering from a persistent cough and a fever. Charla complained about a rapid heartbeat, but Dr. Eidenberg attributed it to her having pneumonia and the breathing treatment she received. Charla was admitted to the hospital, where her complaints about her heart rate continued. Not long after admission, Charla died. Kevin, Charla's husband, brought suit against Dr. Eidenberg alleging that he violated the standard of care by not performing an EKG to check on Charla's rapid heartbeat. At trial, the expert testimony was divided as to whether Dr. Eidenberg met the standard of care. A jury found in favor of Dr. Eidenberg and the court of appeals affirmed. Kevin's petition for review was granted.
ISSUES: (1) Jury instructions; (2) motion in limine
HELD: The jury received a "physician's selection of course of treatment' instruction. This instruction was factually and legally appropriate. There is nothing to suggest that Dr. Eiden-berg's failure to order an EKG was an unreasonable medical decision based on Charla's symptoms. Similarly, neither jury instruction defining negligence was clearly erroneous. The instruction which mentioned common experience was legally inappropriate, since establishing causation requires expert testimony. But the instruction was not clearly erroneous and any error was harmless. An order in limine prevented Kevin from using the words "safe" or "needless endanger a patient" during trial. Some review is precluded because Kevin never proffered what expert testimony was excluded by the order in limine. And substantively, the words covered by the order misstate the standard of care in Kansas and were properly excluded.
STATUTE: K.S.A. 2017 Supp. 60-251(c), -251(d)(2)
CAUSATION—DAMAGES
BURNETTE v. EUBANKS
JOHNSON DISTRICT COURT—AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
COURT OF APPEALS—AFFIRMED IN PART AND REVERSED IN PART
NO. 112,429 – AUGUST 24, 2018
FACTS: Joel Burnette sued Dr. Eubanks and her clinic alleging negligence in administering epidural steroid injections for back pain. Joel believed that the negligent manner of delivering the injections caused side effects which included nerve damage and significant pain. Four years after the injection, Joel committed suicide. Joel's parents filed a wrongful death case against the defendants on behalf of the estate and the lawsuits were consolidated by the district court. A jury found Dr. Eubanks liable for Joel's injuries and death. The verdict was affirmed by the court of appeals and the Burnettes' petition for review was granted.
ISSUES: (1) Causation instructions; (2) expert testimony; (3) damages
HELD: Taken as a whole, the jury instructions correctly supplied the cause-in-fact requirement for causation. The use of the phrase "contributed to" was not erroneous. Expert testimony proved but-for causation tying Dr. Eubanks' negligence to Joel's back pain...
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