Appellate Decisions
| Citation | Vol. 90 No. 1 Pg. 67 |
| Pages | 67 |
| Publication year | 2021 |
| Date | 01 February 2021 |
KANSAS STATE SUPREME COURT
ATTORNEY DISCIPLINE
ORDER OF DISBARMENT IN RE ADEBAYO OGUNMENO
NO. 122,867—DECEMBER 11, 2020
FACTS: An original and an amended complaint were filed against Ogunmeno in 2019; he failed to respond to either complaint. A hearing panel determined that Ogunmeno violated: KRPC 1.1 (competence); 1.3 (diligence); 1.4 (communication); 1.16 (declining or terminating representation); 3.1 (meritorious claims and contentions); 3.2 (expediting litigation); 3.3 (candor toward the tribunal); 3.4 (fairness to opposing party and counsel); 8.1 (bar admission and disciplinary matters); 8.4 (misconduct); Rule 208 (attorney registration); and Rule 211(b) (timely answer to formal disciplinary complaint). The charges stemmed from a complaint Ogunmeno filed in federal district court alleging illegal and improper behavior by the judiciary in his county. Filings in the suit included an altered email which changed a judge's words. The action was ultimately dismissed, and Ogunmeno was sanctioned under Rule 11 for his actions. Ogunmeno also failed to properly initiate a lawsuit by serving the defendant. His client ultimately prevailed in a claim against him for legal malpractice. Multiple clients filed disciplinary complaints against Ogunmeno, but he never responded to inquiry letters from the Disciplinary Administrator.
HEARING PANEL: The hearing panel found multiple instances of Ogunmeno's lack of competence and diligence. He also wholly failed to participate in the disciplinary process. Ogunmeno's actions caused significant harm to his clients and to the legal system. The hearing panel recommended discipline of disbarment.
HELD: Ogunmeno failed to answer the formal disciplinary complaint and failed to appear at the final hearing. Due to a lack of objection the factual findings are deemed admitted. After careful consideration, the court agreed. Ogunmeno is disbarred.
CIVIL
JURISDICTION
IN RE ESTATE OF LENTZ
SHAWNEE DISTRICT COURT- COURT OF APPEALS IS REVERSED, CASE REMANDED TO COURT OF APPEALS NO. 118,307—DECEMBER 11, 2020
FACTS: Lentz died in 2012, leaving directions to equally divide his estate between his three daughters. Lana Lentz was appointed executor. Lana petitioned for final settlement in 2015 but her sister, Diann, opposed the settlement and alleged that Lana had mismanaged the estate. Lana resigned as executor and the third sister, Marilyn, took over. Marilyn petitioned for a new final settlement in 2016, but Diann objected. The district court held a hearing and approved the settlement over the objections. The journal entry was filed on December 30, 2016. Twenty-eight days later, Diann filed two motions asking for reconsideration under K.S.A. 60-260(b) (1) and (2). The motions were denied in June 2017 and Diann appealed. The Court of Appeals dismissed the appeal for lack of jurisdiction because Diann's post-trial motions were filed under K.S.A. 60-260, which does not toll the time in which to file a notice of appeal. The panel went on to note that even if there was jurisdiction, it appeared that Diann would lose on the merits of her claims. The Supreme Court granted Diann's petition for review.
ISSUE: (1) Jurisdiction
HELD: Motions filed under K.S.A. 60-259 toll the time for filing a notice of appeal; those filed under K.S.A. 60-260 do not. Diann's motion to reconsider did not reference K.S.A. 60-259, but she argued on appeal that it is properly construed as a motion filed under that statute. The substance and timing of her motions support Diann's argument that- despite the text of the pleadings-the motions should be construed as ones filed under K.S.A. 60-259. Because the notice of appeal clock stopped while the motions were considered, Diann's notice of appeal was timely, and the Court of Appeals erred by dismissing the appeal. Because the Court of Appeals did not directly address the merits of Diann's arguments, the case must be remanded for further appellate proceedings.
CONCURRENCE: (Luckert, C.J., joined by Biles and Stegall, JJ) The Court of Appeals erred when it tangentially discussed the relative lack of merit to Diann's appeal. Once it determined there was no jurisdiction the appeal should have been dismissed without further comment. On remand, a different panel should decide the case on its merits.
STATUTE: K.S.A. 2019 Supp. 60-259(f), -260(b), -2103(a)
STATUTORY INTERPRETATION-WORKERS COMPENSATION
JOHNSON V. U.S. FOOD SERVICE WORKERS COMPENSATION BOARD-COURT OF APPEALS IS REVERSED, BOARD IS AFFIRMED NO. 117,725-JANUARY 8, 2021
FACTS: Johnson was injured in the course of his employment with U.S. Food Service. After treatment, Johnson was released with a 6% whole person impairment. Johnson appealed to the ALJ, arguing that the Kansas Legislature's inclusion of the Sixth Edition of the American Medical Association Guides was unconstitutional because it resulted in a lower impairment rating, depriving workers of the adequate substitute remedy contemplated by the Kansas Constitution Bill of Rights. Both the ALJ and the Workers Compensation Board of Appeals refused to address Johnson's claim on grounds that they did not have the authority to find a statute unconstitutional. Johnson appealed, and the Court of Appeals agreed that the adoption of the Sixth Edition of the AMA Guides meant that workers no longer received an adequate remedy, in violation of section 18 of the Kansas Constitution Bill of Rights. The Supreme Court granted U.S. Food Service's petition for review.
ISSUE: (1) Constitutionality of the use of the Sixth Edition of the AMA Guides
HELD: The statute at issue can be read to leave intact the requirement that impairment be established by competent medical evidence. The Sixth Edition of the AMA Guides is meant to serve as a starting point for the consideration of competent medical evidence. Because the statute can be construed in a way that renders it constitutional, the court has a duty to do so.
STATUTES: Kansas Constitution Bill of Rights, section 18; K.S.A. 2019 Supp. 44-510e(a)(2)(B)
DAMAGES-MANDATE RULE BUILDING ERECTION SERVICES COMPANY, INC. V WALTON CONSTRUCTION COMPANY, INC.
JOHNSON DISTRICT COURT-COURT OF APPEALS IS AFFIRMED IN PART AND REVERSED IN PART, DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 117,839-NOVEMBER 20, 2020
FACTS: This case has a lengthy procedural history involving 10 years of litigation surrounding faulty construction. It is clearly established that Walton Construction has prevailed against Building Erection Services Company, Inc. and the only issue remaining is damages. The first attempt to set damages was reversed by the Court of Appeals and remanded for lack of substantial competent evidence. The district court made a second attempt and a different panel of the Court of Appeals reversed, again finding a lack of substantial competent evidence. Neither party petitioned for review of that decision. This appeal involves the third attempt at a damage award. The district court ordered BESCO to pay a higher percentage of damages plus attorney fees that the Court of Appeals reversed in the second appeal in addition to fees that Walton accrued during the continued litigation. On appeal, a third panel of the Court of Appeals reversed the damages award and attorney fee award for failure to abide by the law of the case and mandate rules. The panel declined to remand the case for another attempt at figuring out damages. The Supreme Court granted Walton's petition for review.
ISSUES: (1) Application of the mandate rule; (2) substantial competent evidence to support third award
HELD: The mandate from the first appeal required the district court to apportion damages based on BESCO's actual faulty work under the contract and the actual costs of remediation attributable to BESCO's work. After the first remand, the second appeal not only reversed the district court's damage findings but also ruled that there was no nexus between the attorney fee award and BESCO's scope of work. Because neither party petitioned for review, the mandate from the second appeal required the district court to again determine which portion of the remediation costs and attorney fees were attributable to BESCO's work. The third award, which increased the percentage of damages BESCO was required to pay and added attorney fees, violated the mandate rule. There is no exception for district courts to circumvent the mandate of a higher court. There is no need to determine whether substantial competent evidence supported the third damage award because the case must be remanded. The Court of Appeals erred when it held that the case need not be remanded for further damage findings.
STATUTES: No statutes cited.
CRIMINAL
DUI-EXCLUSIONARY RULE CITY OF KINGMAN V. ARY KINGMAN DISTRICT COURT-COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS AFFIRMED
NO. 114,413-NOVEMBER 20, 2020
FACTS: Ary was involved in a one-vehicle car accident in 2014. The investigating officer noticed signs of impairment and arrested Ary for DUI. Ary received the implied consent advisories through the DC-70 form and agreed to take a blood alcohol test, which showed a result over the legal limit. Ary was convicted in municipal court and appealed to district court. There, he asked the district court to suppress the blood test results as unconstitutional because law enforcement did not get a warrant prior to the test. The district court denied the motion and Ary was convicted after a bench trial. On appeal, the Court of Appeals ruled that the warrantless blood test was unconstitutional. But the panel held that the good faith exception to the exclusionary rule saved the search. The Supreme Court granted Ary's petition for review. After the petition was granted but before it could be heard, the Supreme Court ruled in State v....
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