Appellate Decisions
| Jurisdiction | Kansas,United States |
| Pages | 60 |
| Citation | Vol. 92 No. 2 Pg. 60 |
| Publication year | 2023 |
March, 2023
Appellate Decisions
Kansas Supreme Court
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ATTORNEY DISCIPLINE
ONE-YEAR SUSPENSION IN RE ISAAC HENRY MARKS SR.
NO. 125,622 — JANUARY 13, 2023
FACTS: Marks was admitted to practice law in Kansas in 1987, but his primary practice is in both Maryland and the District of Columbia. In May 2022, the Office of the Disciplinary Administrator filed a formal complaint against Marks alleging violations of the Kansas Rules of Professional Conduct. The complaint stemmed from conduct while Marks was working as a trustee in the District of Columbia in 2018 and resulted in the District of Columbia Court of Appeals suspending Marks' law license for one year in June 2021. Marks failed to notify Maryland of the suspension, which resulted in an indefinite suspension of his Maryland license. Marks then failed to notify the ODA of the Maryland suspension. Marks and the disciplinary administrator entered into a summary submission agreement where Marks admitted he violated KRPC 1.1 (competence); 1.3 (diligence); 1.15(a) and (b) (safekeeping property); 8.4(c) (dishonesty); 8.4(d) (engaging in conduct prejudicial to the administration of justice); Rule 210(c) (duty to report); and Rule 221(b) (discipline imposed in another jurisdiction).
HEARING PANEL: The misconduct in the District of Columbia involved failures in accounting and recordkeeping, including the misappropriation of trust funds. After the District of Columbia imposed discipline, Marks failed to inform Maryland, as required by the rules of conduct. The panel considered aggravating factors including multiple offenses. There were also mitigating circumstances, including the absence of a prior disciplinary record and Marks' cooperation with the disciplinary process. The parties jointly recommended a one-year suspension to run concurrent with the Maryland suspension, with an effective date of September 13, 2021. The parties also agreed that Marks must undergo a reinstatement hearing after both his D.C. and Maryland licenses have been reinstated.
HELD: The court adopts the findings and conclusions in the summary submission, finding that they establish the misconduct by clear and convincing evidence. The court agrees with the parties' recommended discipline.
PUBLISHED CENSURE IN RE MITCHELL J. SPENCER
NO. 125,500 — FEBRUARY 10, 2023
FACTS: A complaint was docketed with the Office of the Disciplinary Administrator after Spencer was charged in a misdemeanor traffic case. The parties entered into a summary submission agreement where Spencer stipulated to violations of KRPC 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 8.4(g) (engaging in any other conduct that adversely reflects on the lawyer's fitness to practice law). The misdemeanor complaint arose after Spencer drove into a pickup truck while driving a golf cart, damaging both vehicles. Spencer left the scene without reporting the damage. The incident was captured on video, but when confronted, Spencer claimed that everything was fine. The director of the golf club where the incident occurred filed a police report. Spencer was charged with inattentive driving. He eventually entered a diversion agreement and stipulated to the charges. Spencer successfully completed diversion. At the time of the accident, Spencer was an assistant city prosecutor.
HEARING PANEL: The hearing panel found a dishonest motive in Spencer's leaving the golf course without notifying anyone of the accident. Spencer also engaged in deceptive practices in his initial response to the ODA. Mitigating factors included Spencer's anxiety disorder, which contributed to his inappropriate response. Spencer paid for the damage he caused and eventually fully cooperated with disciplinary proceedings. Spencer and the ODA jointly recommended that he be suspended for 90 days with the suspension stayed pending a one-year probation.
HELD: The summary submission and the parties' stipulations establish clear and convincing evidence of the charged conduct. When considering discipline, a majority of the court decides the lesser discipline of published censure is appropriate. The agreement of a suspended term of suspension and probation was based in part on Spencer's status as a prosecutor at the time of the incident. Prosecutors are only held to a higher standard if misconduct occurs while they are acting in the scope of their official prosecutorial duties. Spencer's misconduct was wholly unrelated to his employment.
CIVIL
KANSAS OPEN RECORDS ACT ROE V. PHILLIPS COUNTY HOSPITAL PHILLIPS DISTRICT COURT — COURT OF APPEALS
IS REVERSED, DISTRICT COURT IS AFFIRMED, CASE REMANDED
NO. 122,810 — JANUARY 6, 2023
FACTS: Kelly Roe made written requests under the Kansas Open Records Act to Phillips County Hospital. She asked for copies of existing electronic records in their native format. The hospital was willing to provide copies of the information Roe sought but was only willing to give the information in paper format. The hospital refused to provide the electronic records in native format. Roe filed a petition in district court seeking to enforce her KORA rights. The district court granted partial summary judgment to Roe, finding that KORA implies that electronic records must be produced in native format. On appeal, a Court of Appeals panel reversed the district court, finding that KORA is silent on the question of format. The Supreme Court granted Roe's petition for review on the question of whether KORA requires a public agency to provide copies of electronic public records in the requested electronic format.
ISSUES: (1) Whether KORA requires a public agency to provide requested electronic copies of public electronic records
HELD: Since it is undisputed that the hospital possesses the requested electronic records and can produce them in electronic format, the only question for review is what is meant by "copies" in KORA. "Copies" is not defined within the Act, but the plain meaning of the word denotes essentially perfect duplication. That means an agency cannot split a record into its parts and must disclose all recorded information unless that information is specifically exempted by KORA. In other words, the form the information is in is part of the record, and any copy provided under the Act must mirror the recorded information's format.
STATUTES: K.S.A. 2020 Supp. 45-217; K.S.A. 45-219(a), -221(a)
INSURANCE
GRANADOS V. WILSON
WYANDOTTE DISTRICT COURT — COURT OF APPEALS IS AFFIRMED, DISTRICT COURT IS REVERSED, CASE REMANDED
NO. 123,684 — JANUARY 27, 2023
FACTS: John Wilson was driving under the influence when he struck another car, killing the driver. The driver's wife, Nancy Granados, brought a wrongful-death lawsuit against Wilson and was awarded a judgment of $3,353,777.52. Wilson was insured by Key Insurance Company, and he notified them of the crash the day after it happened. Key identified Granados as a claimant in its claim management system and initiated a claim liability review that revealed Wilson was at fault and damages would exceed his policy limit. But Key never told Wilson about that finding and never contacted Granados to discuss settlement. After not hearing from any of the parties, Key closed its claim file. Eight months after the accident, Granados filed her suit against Wilson. Key learned of the suit and offered to settle with Granados for the $25,000 policy limit. Granados rejected the offer, claiming that Key's failure to independently offer a policy-limit settlement before suit was filed constituted negligence and bad faith. Instead, the parties entered a settlement agreement and covenant not to execute where Granados promised not to execute on any judgment she obtained against Wilson. In exchange, Wilson assigned to Granados any claims he had against Key under his insurance policy. After a bench trial, the district court entered judgment in excess of $3 million. Granados tried to collect on the judgment by filing a garnishment action against Key, alleging that Key breached implied contractual duties it owed to Wilson. Specifically, she believed that Key had a duty to both communicate with its insured and negotiate a presuit settlement. After a bench trial, the district court ruled in Granados' favor, finding that Key's breach of its duty to communicate with Wilson caused the excess judgment. On appeal, the Court of Appeals reversed, finding that the excess judgment was more the result of Granados' actions after the lawsuit was filed. The Supreme Court...
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