Civil Case Compilation June 22 2012 - May 3 2013.pdf - Office of ...

RECENT DECISIONS AND HOT ISSUES – 

APPELLATE CASES UPDATE 

CIVIL CASES 

CASES: JUNE 22, 2012 – MAY 3, 2013 

______________________________________________________________________________ 

ADEQUACY OF COUNSEL 

Coulter v. Anadarko Petroleum Corp. 

296 Kan. 336, 292 P.3d 289 (Jan. 11, 2013) (Johnson, J.) 

Case No. 103,310 

Royalty owners entitled to receive a share of the production of natural gas in the Hugoton gas field brought 

a class action against Anadarko Petroleum Corporation, claiming that the company and its affiliates had 

underpaid the royalties required by the plaintiffs' respective oil and gas leases. The case was tried to the 

bench in 2002, reargued in 2006, and settled in June 2009 with an amended class that had expanded from 

4,500 to 6,000 members. One member objected to the amended class certification and to the class action 

settlement agreement, claiming the agreement essentially gave away class members' potential nongathering 

claims without adequate identification or investigation. 

The Supreme Court held that the district court did not abuse its discretion in finding that class counsel 

adequately represented the class members, and affirmed the certification of the amended class. Prior to the 

2010 amendment, K.S.A. 60-223 contained no specific guidance on how a district court should assess the 

adequacy of class counsel. The amended statute was not binding authority in this case, but the Court used it 

as a framework for analyzing the argument that class counsel was inadequate. The Court also held that the 

district court did not abuse its discretion in finding that the settlement agreement was fair, reasonable, and 

adequate. The Court explained that Kansas appellate courts had not adopted a specific test or list of factors 

for evaluating class action settlements, and because the amended version of K.S.A. 60-223 mirroring Fed. 

R. Civ. P. 23 did not control, the Court did not determine whether federal factors will become mandatory 

inquiry in class action settlements in Kansas district courts. 

ADMINISTRATIVE LAW AND PROCEDURE 

Ryser v. State Board of Healing Arts 

295 Kan. 452, 284 P.3d 337 (Sept. 7, 2012) (Moritz, J.) 


During the course of its disciplinary investigation of a medical provider (Ryser) licensed to practice in both 

Kansas and Missouri, the Kansas Board of Healing Arts (Board) caused a subpoena to issue for documents 

related to Ryser's treatment of a Missouri patient that had filed medical malpractice lawsuit against Ryser. 

Ryser petitioned to revoke subpoena under K.S.A. 65-2839a(b)(3)(B). Supreme Court held that Kansas 

Judicial Review Act (KJRA) does not apply to such petitions. Court further concluded Ryser was not 

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ADOPTION 

required to exhaust administrative remedies before filing her petition because K.S.A. 65-2839a(b)(1) 

permits, but does not require a person to seek relief from the Board before applying to the district court for 

review of a subpoena. Court ruled that Board has jurisdiction to investigate Ryser's practice of medicine in 

Missouri under its general authority to take disciplinary action against "any licensee practicing under [the 

Act]" under K.S.A. 2011 Supp. 65-2838(a). Moreover, Ryser's practice of medicine in Missouri could 

provide "grounds for disciplinary action" under K.S.A. 65-2839a(b)(1), (3)(B) as well as an investigation 

for any possible violations under K.S.A. 2011 Supp. 65-2836. 

In the Matter of the Adoption of I.M. 

48 Kan. App. 2d 343, 288 P.3d 864 (2012) (Nov. 9, 2012) (Arnold-Burger, J.) 


Former stepfather wanted to adopt former stepdaughter. Biological mother consented to the adoption so 

long as she did have to relinquish her parental rights. The district court dismissed the case for failure to 

state a claim because the relief former stepfather requested is not possible in Kansas. The Court of Appeals 

affirmed the district court, holding that Kansas law does not allow adoptions by former stepparents without 

a relinquishment of parental rights by the biological parents. 

AD VALOREM TAXATION 

In the Matter of the Application of TransCanada Keystone Pipeline, L.P. for 

Exemption from Ad Valorem Taxation 

__ Kan. App. 2d __, __ P.3d __, 2013 WL 1786019 (Apr. 26, 2013) (Bruns, J.) 


TransCanada Keystone Pipeline, L.P. (Keystone) filed an application for a property tax valuation 

exemption for the Cushing Extension—the 210-mile portion of its crude oil pipeline passing through 

Kansas. The Director of Property Valuation (Director) recommended denying the exemption, and Keystone 

and the Director both filed motions for summary judgment with the Court of Tax Appeals (COTA) on 

stipulated facts. The COTA granted Keystone’s motion for summary judgment, and the Director appealed. 

For an oil pipeline to qualify for an exemption under K.S.A. 2010 Supp. 79-227, it must be a “qualifying 

pipeline.” A “qualifying pipeline” is defined by K.S.A. 2010 Supp. 79-32,223(d) as “a pipeline which is 

located in this state, is used primarily for transportation of crude oil or natural gas liquids and has a length 

of more than 190 miles in this state and to which refineries or natural gas liquid processing facilities in this 

state have access.” The parties stipulated that Kansas refineries have access to the pipeline in Cushing, 

Oklahoma. The Director argued, however, that K.S.A. 2010 Supp. 79-32,223(d) required a direct access 

point in Kansas. Nevertheless, the plain and unambiguous language of the statute does not make an in-thisstate 

requirement for access. And the legislature clearly knew how to make an in-this-state requirement 

because it did so for the pipeline, a 190-mile length, and refineries or natural gas liquid processing 

facilities. Furthermore, the plain meaning of “access” is a “means of approaching . . . or making use of.” As 

such, the access requirement can be achieved without a direct connection. Therefore, the plain and 

unambiguous language of the statute did not require that Kansas refineries have direct access to the 

Cushing Extension in Kansas. If the plain language of the statute did not express the legislature’s intent 

then the legislature, rather than the judiciary, is the proper branch to address the matter. 

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In the Matter of the Equalization Appeal of Wedge Log-Tech, L.L.C./Pioneer Wireline 

Services for the Year 2008 in Ellis County, Kansas, and In the Matter of the 

Application of Wedge Log-Tech, L.L.C./Pioneer Wireline Services for Exemption from 

Ad Valorem Taxation in Ellis County, Kansas 

___ Kan. App. 2d ___, ___ P.3d ___, 2013 WL 1497338 (Apr. 12, 2013) 

(Malone, C.J.) 


Ellis County appealed an order of the Court of Tax Appeals that granted Wedge Log-Tech, L.L.C./Pioneer 

Wireline Services' (the taxpayer) application for exemption from ad valorem taxation. Historically, Ellis 

County had classified, valued, assessed, and taxed the taxpayer's wireline equipment as commercial and 

industrial machinery and equipment under subclass 5 of class 2 of § 1(a) of Article 11 of the Kansas 

Constitution. After the legislature passed a tax exemption for certain commercial and industrial machinery 

and equipment, the taxpayer applied for the exemption for the wireline equipment. Ellis County denied the 

application and informed the taxpayer that it had reclassified the wireline equipment under subclass 2 of the 

constitutional provision, which relates to mineral leasehold interests. The taxpayer appealed to COTA, 

which found that the taxpayer's wireline equipment is properly categorized as commercial and industrial 

machinery and equipment; COTA granted the exemption. Ellis County appealed to the Court of Appeals 

and argued that the wireline equipment should be classified under subclass 2 because wireline equipment is 

intrinsically related to the oil and gas industry. The Court of Appeals disagreed, finding that Ellis County's 

argument that equipment "intrinsically related" to the oil and gas industry should be categorized with 

mineral leasehold interests for tax purposes was not supported by any legal authority. Further, the court 

noted that the position Ellis County advocated was contrary to the Division of Property Valuation of the 

Kansas Department of Revenue's historical position on wireline equipment, which was to classify it for tax 

purposes as commercial and industrial machinery and equipment. Finally, the court pointed out a statutory 

provision expressly prohibiting reclassification of subclass 5 property for the purpose of avoiding the tax 

exemption in question. Accordingly, the Court of Appeals affirmed COTA's order. 

ALTERNATIVE MEANS 

Tom Bates and Michelle Entriken, as Parents and Next Friends of Hayley Bates, a 

Minor, v. Dodge City Healthcare Group, L.P., d/b/a Western Plains Regional Hospital 

296 Kan. 271, 291 P.3d 1042 (Jan. 11, 2013) (Nuss, C.J.) (Biles, J., 

concurring in part and dissenting in part) 


In the early morning of December 20, 1996, Michelle Entriken, who was 34 to 35 weeks pregnant, went to 

Western Plains Regional Hospital to the obstetrical department; she was in pain and believed she was in 

labor. After being admitted, Entriken met with Linda Unruh, a labor and delivery nurse who started a fetal 

heart monitor. Unruh also called Entriken's obstetrician to inform him that she was at the hospital. 

Prolonged decelerations to the fetal heart rate began shortly thereafter. Unruh called Entriken's obstetrician 

again, who lived 5 to 10 minutes away, and later testified that she asked him to come to the hospital. When 

he had not arrived 10 minutes later, Unruh paged him to come immediately. The obstetrician arrived 20 

minutes later and ordered an immediate C-section. Entriken and Tom Bates' daughter was delivered shortly 

thereafter, but has resulting severe health problems. Bates and Entriken sued the hospital, alleging 

negligence liability under a respondeat superior theory, but the jury returned a verdict for the hospital. After 

the Court of Appeals affirmed, the Supreme Court granted review on one issue: whether a jury instruction 

incorrectly directed the jury to apply a community nursing standard of care to the parents' claim that the 

nurse's failure to call up the chain of command for assistance fell below the required standard of care. The 

parents argued that the nurse's failure to appropriately and quickly initiate the chain of command to deal 

with the fetal distress was governed by a national standard, but the Supreme Court disagreed, finding that it 

was appropriate for the district court to give an instruction that retained the language regarding a 

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community-based standard of care due to differences in procedure at hospitals across the country, 

especially due to the different resources available at those hospitals. Under the facts of this case, the jury 

instruction was an accurate and fair statement of Kansas law. 

Biles, J., dissented, claiming that the question of which standard of care is applicable is a question of fact 

and that the jury should have been presented with both a national- and community-based standard of care 

and been instructed to determine which one was appropriate and then apply that standard of care. 

Wright v. State 

___ Kan. App. 2d ___, 294 P.3d 1201 (Feb. 15, 2013) (Malone, C.J.) 

Petition for Review filed Mar. 15, 2013 


After our Supreme Court affirmed her conviction of rape, Mary Ann Wright filed a K.S.A. 60-1507 motion 

raising claims that (1) her trial counsel was unconstitutionally ineffective for requesting a general verdict 

form when she was charged with alternative means of committing rape and (2) her appellate counsel for her 

direct appeal was unconstitutionally ineffective for failing to argue that sexual intercourse with a person 

who does not consent and who is overcome by force or fear constitutes alternative means of committing 

rape. The district court conducted an evidentiary hearing and denied relief. On appeal, the Kansas Court of 

Appeals affirmed, finding that the trial counsel's request for a general verdict form was a strategic choice 

and that the district court correctly found that the request did not fall below an objective standard of 

reasonable representation; therefore, the choice did not constitute ineffective assistance of counsel. The 

Kansas Court of Appeals further held that the district court correctly found that, in light of the 

circumstances existing at the time of Wright's direct appeal, the treatment of force and fear as a single 

means of committing rape did not fall below an objective standard of reasonable representation; therefore, 

it did not constitute ineffective assistance of counsel. Moreover, the court held that Wright had also failed 

to show she was prejudiced because, as a matter of law, force and fear is a single, unified means of 

committing rape. 

ANNEXATION 

Pishny v. Board of Johnson County Comm'rs, 

47 Kan. App. 2d 547, 277 P.3d 1170 (July 27, 2012) (Hill, J.) 

Petition for Review filed June 1, 2012 


The Board of Commissioners for Johnson County (the Board) did not lose jurisdiction to render the 

annexation decision. As an issue of first impression, for the purposes of the annexation statute, "adjourn 

sine die" in K.S.A. 12-521(d) means when the board will no longer take evidence on the annexation matter. 

As applied to the facts of this case, the Board made a conditional adjournment on October 30, 2007, and 

left the record open. Also, the seven-day time limit in K.S.A. 12-521(d) is a procedural requirement that is 

directory in nature rather than mandatory. The fact that the Board required the City of Overland Park (the 

City) to later reach an agreement with Aubry Township is not ultra vires, and those opposing the 

annexation abandoned this issue. 

The district court's finding of the Board's substantial compliance is affirmed. The annexation statutes 

clearly provide for annexation of a lesser amount of area than was proposed for annexation. There is no 

statutory requirement for the Board to have amended the information in order to consider or partially grant 

the annexation. Refinements made to the service extension plan offered by the City did not make it the 

wrong plan as those opposing the annexation contend. The argument presented by those opposing the 

annexation—that the district court applied the wrong legal standard—was rejected. 

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The court found no procedural due process errors. Those opposing the annexation were provided adequate 

notice and opportunity to be heard. There is no legal authority that requires a public hearing every time an 

annexation record is supplemented with additional information. The annexation statutes contemplate only a 

single public hearing. In addition, there was no showing that the rights of those opposing the annexation 

were violated as a result of ex parte communications. 

ARBITRATION 

Neighbors Construction Co., Inc. v. Woodland Park at Soldier Creek, LLC, et al 

48 Kan. App. 2d 33, 284 P.3d 1057 (Aug. 3, 2012) (Green, J.) 


Woodland Park at Soldier Creek, LLC (Woodland Park), appealed from the trial court's decision that: (1) 

denied Woodland Park's application to vacate, or modify and correct arbitration; and (2) confirmed an 

arbitration award in favor of Neighbors Construction Co., Inc. (Neighbors Construction), in the amount of 

$1,277,701.31. On appeal, Woodland Park challenged several aspects of the arbitration proceeding. The 

Court of Appeals held the following: (1) Architect's decision regarding payment dispute between Neighbors 

Construction and Woodland Park was not final and therefore not entitled to deference by the arbitrator or 

trial court; (2) the arbitrator did not exceed his powers under K.S.A. 5-412(a)(3); the arbitrator's award was 

not in manifest disregard of the law; (4) the arbitration award was not based on irrational interpretation of 

the contract; and (5) the consequential damages waiver clause in the parties contract did not preclude award 

of attorney's fees or interest. 

Unified Government of Wyandotte County/Kansas City v. IBEW Local 53 

48 Kan. App. 2d 128, 286 P.3d 570 (Aug. 24, 2012) (Pierron, J.) 


This appeal arises out of the arbitration undertaken by the parties regarding the discharge of an employee of 

the Unified Government's Water Pollution Control Division after that employee, Herron, got into a fight 

with a coworker. Herron was protected by the provisions of the Memorandum of Agreement (MOA) 

previously negotiated between the International Brotherhood of Electrical Workers, Local 53 (IBEW) and 

UG. Under this contract, the issue of whether UG had "just cause" to terminate Herron's employment was 

submitted to arbitration. The arbitrator elicited testimony at a hearing as well as legal arguments in the form 

of briefs and rendered a decision in favor of Herron and IBEW. The arbitrator ordered UG to reduce 

Herron's discharge to a suspension. At UG's request, the district court reviewed the contract between the 

parties, the decision of the arbitrator, and the legal arguments of the parties, and then issued a memorandum 

decision affirming the arbitrator's decision. The Court of Appeals stated that the arbitrator used the 

appropriate seven-part test to decide whether he should reduce Herron's discipline. The court also stated 

that the arbitrator's use of the test's appropriateness/reasonableness prong was far from unreasonable. 

Before exercising his discretion to reduce Herron's discipline, the arbitrator made factual findings regarding 

Herron's work record (good employee for almost 10 years and was promoted to foreman) and other 

mitigating circumstances (Herron was provoked and was genuinely remorseful about assaulting Rangel). 

These findings suggest the arbitrator believed UG would not be harmed by Herron's continued employment 

and that Herron would benefit from a chance to redeem himself. The court set forth the disclaimer that the 

award does not mean every UG employee who assaults another employee will be reinstated—not every 

arbitrator will exercise his or her discretion to reduce discipline, not every employee will have a sparkling 

work record, and not every situation will have compelling mitigating circumstances. The court also 

clarified that because of the rule against reweighing evidence, it could not consider UG's claim that Herron 

was not truly sorry about hurting Rangel. 

This appeal arises out of the arbitration undertaken by the parties regarding the discharge of an employee of 

the Unified Government's Water Pollution Control Division after that employee, Herron, got into a fight 

with a coworker. Herron was protected by the provisions of the Memorandum of Agreement (MOA) 

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previously negotiated between the International Brotherhood of Electrical Workers, Local 53 (IBEW) and 

UG. Under this contract, the issue of whether UG had "just cause" to terminate Herron's employment was 

submitted to arbitration. The arbitrator elicited testimony at a hearing as well as legal arguments in the form 

of briefs and rendered a decision in favor of Herron and IBEW. The arbitrator ordered UG to reduce 

Herron's discharge to a suspension. At UG's request, the district court reviewed the contract between the 

parties, the decision of the arbitrator, and the legal arguments of the parties, and then issued a memorandum 

decision affirming the arbitrator's decision. The Court of Appeals stated that the arbitrator used the 

appropriate seven-part test to decide whether he should reduce Herron's discipline. The court also stated 

that the arbitrator's use of the test's appropriateness/reasonableness prong was far from unreasonable. 

Before exercising his discretion to reduce Herron's discipline, the arbitrator made factual findings regarding 

Herron's work record (good employee for almost 10 years and was promoted to foreman) and other 

mitigating circumstances (Herron was provoked and was genuinely remorseful about assaulting Rangel). 

These findings suggest the arbitrator believed UG would not be harmed by Herron's continued employment 

and that Herron would benefit from a chance to redeem himself. The court set forth the disclaimer that the 

award does not mean every UG employee who assaults another employee will be reinstated—not every 

arbitrator will exercise his or her discretion to reduce discipline, not every employee will have a sparkling 

work record, and not every situation will have compelling mitigating circumstances. The court also 

clarified that because of the rule against reweighing evidence, it could not consider UG's claim that Herron 

was not truly sorry about hurting Rangel. 

ATTORNEY FEES 

Snider v. American Family Mut. Ins. Co. (Snider II) 

___ Kan. ___, ___ P.3d ___, 2013 WL 1694786 (Apr. 19, 2013) (Luckert, J.) 

(Moritz and Johnson, JJ. dissenting) 


Eugene Wayne Snider, d/b/a West Heating & Cooling, did not file a motion for appellate attorney fees in a 

successful appeal to the Court of Appeals (Snider I). In the district court proceeding on remand, Snider 

requested and received attorney fees related to both the district court and the appellate proceedings under 

K.S.A. 40-908 (prevailing party attorney fee statute). The Court of Appeals reversed the appellate attorney 

fee order (Snider II), determining Snider had waived his right to appellate attorney fees by not filing a 

motion for attorney fees with the Court of Appeals in Snider I. Snider filed a petition for review. 

The Kansas Supreme Court previously held in Evans v. Provident Life & Accident Ins. Co., 249 Kan. 248, 

265, 815 P.2d 550 (1991), that a party's request for civil appellate attorney fees must be determined by the 

appellate court hearing the appeal. Supreme Court Rule 7.07(b) provides a procedure for making such a 

request and specifies the time period after the appellate oral argument in which the request must be made. 

In this case, our Supreme Court held that the Court of Appeals correctly applied Rule 7.07(b), Evans, and 

K.S.A. 40-908 in denying appellate attorney fees for Snider I; the Court of Appeals did not abuse its 

discretion in determining the amount of reasonable appellate attorney fees for Snider II; and Snider was not 

entitled to appellate attorney fees for the current proceeding because he did not prevail. The court rejected 

Snider's argument that Evans should be overruled or deemed inapplicable in cases where a fee applicant did 

not prevail in the district court. 

The dissent would have followed the Evans dissent to hold that Snider's failure to file a motion for attorney 

fees in Snider I did not bar his claim for appellate attorney fees on remand because Rule 7.07(b) only 

applies where appellate attorney fees are sought in discretionary situations, not where they are specifically 

provided for by statute. 

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BAILMENT 

Schoenholz v. Hinzman 

295 Kan. 786, 289 P.3d 1155 (Oct. 12, 2012) (Rosen, J.) 


Schoenholz entered into an oral agreement with his sister, Hinzman, for the bailment of farm animals and 

farm equipment on her land. Four years after their cooperative effort to breed horses broke down, Hinzman 

sold her farm and the horses. Schoenholz subsequently retrieved most of his equipment from the farm and 

sued Hinzman for conversion and breach of the bailment contract. Hinzman counterclaimed for the 

expenses of maintaining the equipment and caring for the horses. The Supreme Court held the following: 

(1) Schoenholz' breach of contract and conversion claims accrued when Hinzman sold Schoenholz' horses; 

(2) Schoenholz didn't abandoned his property because he intended to retrieve it whenever he could find a 

place to store the equipment and board the horses; (3) Hinzman's gratuitous bailment of Schoenholz' tractor 

didn't make her liable for alleged deterioration of tractor while tractor sat outside on her farm, because the 

damage to the tractor occurred only as a result of her inaction; (4) Setting of 30-day limit on Schoenholz' 

right to recover bale fork and link that Hinzman had removed from her farm in the mistaken belief that it 

belonged to her was within inherent equitable powers of district court to prevent abuse of judicial process; 

and (5) Hinzman's award of attorney fees as a sanction because of Schoenholz' refusal to provide his tax 

returns to her as required by the district court's order to compel discovery was required under K.S.A. 2008 

Supp. 60–237(b)(2). 

BANKRUPTCY 

Sanford R. Fyler v. Brundage-Bone Concrete Pumping, Inc., 

___ Kan. App. 2d ___, 297 P.3d. 1180, 2013 WL 646303 (Feb. 22, 2013) (Hill, 

J.) 


Brundage-Bone Concrete Pumping, Inc., filed for bankruptcy protection under Chapter 11 of the United 

States Bankruptcy Code. The bankruptcy court entered an order lifting the automatic stay to allow Sanford 

R. Fyler to file a claim of negligence against Brundage-Bone in Sedgwick County District Court. The 

district court subsequently ordered Brundage-Bone to expedite a direct cash payment to Fyler. Brundage- 

Bone appealed, challenging the district court's jurisdiction. The Kansas Court of Appeals reversed, holding 

that the district court did not have jurisdiction to order cash payments under the mandatory alternative 

dispute resolution order of the bankruptcy court, which required all liquidated tort claims to become a 

general unsecured claim against the bankruptcy estate. 

CAUSE OF ACTION 

Jeanes v. Bank of America, et al. 

___ Kan. ___, 295 P.3d 1045 (Mar. 8, 2013) (Per curiam) 


In 1991, Maxine Anton, assisted by attorney Sharon Kunard, created an inter vivos revocable trust with the 

intention that, upon her death, the majority of the assets would pass to her niece, Janet Jeanes. When Anton 

died in late 2003, the grass value of her estate was approximately $39 million; in January 2004, her estate 

paid estate and inheritance taxes of over $21 million. Jeanes sued Kunard, among others, alleging 

negligence and breaches of fiduciary duty and contract. The district court granted summary judgment for 

all parties, and Jeanes appealed the grant of summary judgment to Kunard and the trust's manager to the 

Court of Appeals. The Court of Appeals reversed part of the summary judgment for the trust manager, but 

affirmed it for Kunard, finding that because the injury from the alleged negligence and breaches did not 

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arise until after Anton's death, the cause for legal malpractice did not accrue in Anton's lifetime and did not 

survive her death. Jeanes appealed to the Supreme Court, who held that a cause of action sounding in tort 

does not accrue until the act giving rise to the cause of action first causes substantial injury or the fact of 

injury becomes reasonably ascertainable to the injured party. Here, the injury did not occur until January 

2004, when the inheritance and estate taxes were paid. Therefore, the Kansas Supreme Court affirmed the 

Court of Appeals and the district court, finding that because Jeanes' cause of action did not accrue during 

Anton's lifetime, it cannot survive her death. 

CHILD IN NEED OF CARE 

In the Interest of A.E.S. 

___ Kan. App. 2d ___, 298 P.3d 386, 2013 WL 1364746 (Apr. 5, 2013) (Hebert, 

J.) 


After a probable cause hearing, the district court granted temporary custody of A.E.S., a minor child, to 

Social and Rehabilitation Services. A.E.S.' father, M.S., appealed from this temporary order. Because there 

is no provision to stay child in need of care (CINC) proceedings pending such an appeal, the district court 

subsequently found A.E.S. a CINC and ordered that she remain in SRS custody. Finally, the district court 

entered a journal entry of disposition, in which M.S. agreed that A.E.S.' custody shall remain with SRS. 

The later orders superceded the temporary order and eliminated any justiciable controversy regarding the 

custody determination in the temporary order and M.S.' agreement to the journal entry effectively conceded 

the issue M.S. wanted to raise on appeal; therefore, the Court of Appeals determined that M.S.' appeal was 

moot. Because the appeal was capable of repetition and raised concerns of public importance, however, the 

court retained the appeal to address M.S.' and the guardian ad litem's arguments that K.S.A. 2011 Supp. 38- 

2243(f)(3) is unconstitutionally vague and overbroad. The statute provides that a "court may enter an order 

of temporary custody after determining there is probable cause to believe that the . . . health or welfare of 

the child may be endangered without further care." The Court of Appeals held that the statutory provision 

was neither unconstitutionally vague nor unconstitutionally overbroad. 

CHILD SUPPORT 

In re Marriage of Brown 

295 Kan. 966, 291 P.3d 55 (Oct. 26, 2012) (Luckert, J.) 


After his divorce from Kristin, Jared fell behind in his child support payments, and eventually his wages 

were garnished. Jared owed $15,524 in unpaid child support and Kristin requested a judgment against Jared 

for the child support arrearage and for other monies she claimed Jared owed her, including $15,000 Kristin 

had provided to erase spousal maintenance and child support obligations that Jared owed to his previous 

spouse. The district judge ruled that Kristin could keep all of the money from the proceeds from the sale of 

the couples' house and all arrearage would be covered by that and the court "called it good." The Court of 

Appeals affirmed the district court's orders. 

Court stated if a motion for modification has not been filed, any court-ordered modification operates 

prospectively only, and the district court is not authorized to vacate or discharge past-due child support. 

Court held that although several motions to modify were filed while the divorce was pending, the district 

court did not make findings that were tied to a motion to modify. Consequently, contrary to the Court of 

Appeals' holding in this case, the district court could enter only a prospective order regarding child support 

and was not authorized to vacate the temporary child support order that had resulted in an arrearage of 

$15,524. Court found it was unable to state with any certainty which one of the two alternatives 

(modification or vacation) was intended by the district court. Court remanded so the district judge could 

clarify his intent and make further findings. 

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CIVIL PROCEDURE 

Prime Lending II, LLC v. Trolley's Real Estate Holdings, LLC, et. al 

___ Kan App. 2d. ___, ___ P.3d ___, 2013 WL 1786022 (Apr. 26, 2013) (Green, 

J.) 


Bank filed action to foreclose its mortgage on certain real property owned by Holding Company. Later, 

Bank moved for summary judgment, asking to foreclose on the property. The district court granted Bank's 

summary judgment and ordered a sheriff's sale of the property. Bank, based on its bid of $2,200,000, was 

the high bidder for the property. The district court then issued an order confirming the sheriff's sale. The 

district court later issued an order certifying its previous August 24, 2011, memorandum decision of 

summary judgment as a final judgment under K.S.A. 2012 Supp. 60-254(b) and denying Holding 

Company's motion for leave to amend its answer. The Court of appeals determined that the district court 

abused its discretion when it retroactively certified its August 24, 2011, memorandum decision of summary 

judgment as a final judgment under K.S.A. 2012 Supp. 60-254(b). Because the district court failed to make 

a proper determination as required by K.S.A. 2012 Supp. 60-254(b), it dismissed the appeal as 

interlocutory. 

U.S. Bank National Association, as Trustee of the Security National Mortgage Loan 

Trust 2006-2 v. Steven R. McConnell, et al. 

___ Kan App. 2d. ___, ___ P.3d ___ (May 3, 2013) (McAnany, J.) 


Bank filed an action to foreclose its mortgage on a home. The McConnells raise a number of 

issues regarding the propriety of U.S. Bank's foreclosure action and of the district court's entry of summary 

judgment. The Court of Appeals affirmed the district court's order granting summary judgment to U.S. 

Bank, holding: (1) the fact that the Bank held the promissory note was sufficient to give it standing to 

pursue this action because the promissory note follows the mortgage and the mortgage follows the note; (2) 

the McConnells have failed to present any evidence which would create a genuine issue of material fact 

regarding their KCPA claims which would bar summary judgment; (3) every factual dispute between the 

parties does not constitute a bar to summary judgment if the factual dispute is not material to the ultimate 

outcome of the case; (4) a severance of the mortgage and the promissory note it secures may be cured by 

the holder of the note becoming the holder of the mortgage before any judgment of foreclosure; and (5) a 

spouse who does not sign a promissory note but who signs the mortgage securing the other spouse's 

promissory note voluntarily consents to the alienation of his or her homestead rights under K.S.A. 60-2301. 

CLASS ACTION 

City of Neodesha v. BP Corporation North America Inc, et al. 

295 Kan. 298, 287 P.3d 214 (Aug. 31, 2012) (Biles, J.) 


All persons and entities owning real property in and around the City of Neodesha, Kansas, brought a class 

action against BP Corporation of North American and other owners of a former oil refinery, alleging 

groundwater and subsurface soil contamination caused by the now dismantled facility. A jury found in the 

defendants' favor after a 17-week trial. But in posttrial proceedings, the district court decided it had made a 

mistake in submitting the strict liability claim to the jury, and it granted the plaintiff class judgment as a 

matter of law on its strict liability claim, setting the stage for a new trial over damages. BP filed an 

interlocutory appeal. The Kansas Supreme Court held that the district court should not have granted the 

class judgment as a matter of law. The jury was instructed to determine whether BP engaged in an 

abnormally dangerous activity and the trial court erred by overturning the jury's finding. The abnormally 

9

dangerous activities tests under the Restatement of Laws were the appropriate standards to apply to the 

plaintiff class' claims, and the jury decided the question. The court reversed the district court's entry of 

judgment for the class on its strict liability claim, and remanded this matter to the district court with 

directions that the jury's verdict be reinstated and final judgment entered for the defendants. Based on its 

decision, the court did not address BP's claims that its activities or lack thereof did not constitute an 

abnormally dangerous activity as a matter of law or that the class failed to establish causation. The court 

also did not address BP's argument that the district court erred by conditionally granting a new trial as a 

matter of law because it lacked the authority to enter a conditional new trial order. 

See also, Coulter v. Anadarko Petroleum Corp., 296 Kan. 336, 292 P.3d 289 (Jan. 11, 

2013) (Johnson, J.) (Adequacy of Counsel) 

CONSTRUCTIVE FRAUD 

Hemphill v. Shore 

295 Kan. 1111, 289 P.3d 1173 (Dec. 7, 2012) (Beier, J.) 


Hemphill appeals the district court's statute of limitations dismissal of his lawsuit against his uncle, Shore, 

as trustee of the Shore Family Trust. The Court of Appeals affirmed the district court's decision leading 

Hemphill to file a petition for review. Our Supreme Court held that Hemphill's constructive fraud cause of 

action was not time barred while his other three causes of actions were barred by the statute of limitations. 

To establish Hemphill's constructive fraud cause of action, our Supreme Court held that the controlling 

trust instrument established a confidential relationship between Hemphill as beneficiary and Shore as 

trustee, and it limited Shore's discretion to pay out income and distribute proceeds from the sale of principal 

to provide only for Shore's health, education, support, or maintenance. The Court further held that the 10year 

statue of repose in K.S.A. 60-513(b) did not apply to actions for fraud. The Court affirmed in part and 

reversed in part the decision of the Court of Appeals and remanded the case to the district court. 

CONSUMER PROTECTION ACT 

Stechschulte v. Jennings 

__ Kan. __, __ P.3d __ (Apr. 12, 2013) (Beier, J.) (Donald R. Noland, District 

Judge, assigned vice Justice Moritz) 


Plaintiffs, the purchasers of a home, brought suit against the seller for fraud, negligent misrepresentation, 

and breach of contract, and against seller's real estate agent and agency for negligent misrepresentation and 

violations of the Kansas Consumer Practices Act (KCPA) due to water leakage in the home. Defendants 

moved for summary judgment, primarily arguing that Plaintiffs had waived their right to rely on any 

representations made by Defendants. They pointed to Paragraph 5 of the Buyer Acknowledgement, signed 

by the Plaintiffs, which stated: "I specifically represent that there are no important representations 

concerning the condition or value of the property made by SELLER or BROKER on which I am relying 

except as may be fully set forth in writing and signed by them." The district court granted summary 

judgment in favor of Defendants on this basis. On direct appeal, the Court of Appeals reversed the district 

court's grant of summary judgment in favor of the seller and affirmed its grant of summary judgment in 

favor of seller's real estate agent and agency. On petition for review, the Supreme Court affirmed the 

judgment of the Court of Appeals reversing the district court's grant of summary judgment in favor of the 

seller. Relying on Osterhaus v. Toth, 291 Kan. 759, 249 P.3d 888 (2011), the Supreme Court found that 

Paragraph 5 of the Buyer Acknowledgment was merely an integrator protecting the seller and his broker 

from the buyer's later argument that the seller made oral representations upon which the buyer relied. 

10

However, Paragraph 5 did not protect the seller from the buyer's lawsuit based on representations and 

failure to disclose information in the written disclosure form or relieve the seller of the obligation to make 

accurate and complete disclosures. Since Plaintiffs had produced evidence, not barred under Paragraph 5, 

which supported their fraud, negligent misrepresentation, and breach of contract claims against the seller, 

the case was remanded to the district court for further proceedings on those claims. The Supreme Court 

then reversed the judgment of the Court of Appeals affirming the district court's grant of summary 

judgment in favor of the seller's real estate agent and agency. It found that the Brokerage Relationships in 

Real Estate Transactions Act (BRRETA), K.S.A. 58-30,101 et seq., does not eliminate the common-law 

cause of action against a real estate agent or broker for negligent misrepresentation; it merely requires 

evidence of the agent's or broker's actual knowledge of an otherwise undisclosed adverse material fact 

about the subject property. The Supreme Court also noted that a consumer cannot waive or forego rights 

under the KCPA. Since Plaintiffs had produced evidence which supported their negligent misrepresentation 

and KCPA claims against seller's real estate agent and agency, the case was remanded to the district court 

for further proceedings on those claims. 

CONTRACTS 

CoreFirst Bank & Trust v. JHawker Capital, LLC 

47 Kan. App. 2d 755, 282 P.3d 618 (June 15, 2012) (Marquardt, J.) 


CoreFirst Bank & Trust filed a mortgage foreclosure action against JHawker Capital, LLC on a subdivision 

development. Linda and James David Alexander were named as defendants in the foreclosure action 

because of their recorded interests in the real estate. While the foreclosure action was pending, the 

Alexanders and Outwest Investments, LLC—a real estate business in which David is the managing 

member—filed a third-party petition against Junction City Abstract & Title Co., Inc. (JCAT) alleging that 

JCAT failed to adequately protect their retained interests. Specially, the plaintiffs alleged JCAT was liable 

for failing to include a restrictive covenant on the warranty deeds as reflected in the contracts between 

Outwest (and other sellers) and the buyers, JHawker and Southboro, LLC. The plaintiffs claimed that their 

contracts provided that when each of the lots in the development was fully developed and was sold, the 

buyers would either (1) ensure that the Alexanders were the exclusive listing agents with a 5.5% 

commission or (2) pay Outwest a commission or fee of $2,500 regardless of whether the buyers still owned 

the lots. The district court granted summary judgment to JCAT and held that the retained interests were 

void transfer fee covenants under K.S.A. 2011 Supp. 58-3821 and K.S.A. 2011 Supp. 58-3822, and JCAT 

could not be liable for failing to adequately protect an unenforceable interest. The district court also denied 

the plaintiffs' claims for damages for future lost profits, finding them too speculative and remote. On 

appeal, the Alexanders and Outwest argued that the district court erred in concluding that their 

contractually retained interests did not fit within either of the statutory exceptions to the barring of transfer 

fees found in K.S.A. 2011 Supp. 58-3821(a)(2)(A) and (B). Issues involving the interpretation and legal 

effect of a written contract, as well as statutory interpretation, involve questions of law subject to unlimited 

review. The Court of Appeals refused to go outside the four corners of the contracts because the parties did 

not point to any ambiguity in the contracts and the contracts stated that prior agreements have "no further 

force or effect." Parol evidence is inadmissible to contradict, alter, or vary terms of a written instrument 

unless ambiguity exists on vital points such that parol evidence is necessary to ascertain parties' intent in 

executing the instrument. Furthermore, when a contract clearly states that it represents the parties' entire 

agreement and all other agreements previously entered into by the parties are superseded by this contract 

and of no further force or effect, parol evidence on the issue is not admissible. The Court of Appeals 

concluded that (1) the district court did not err in holding that the statutory exceptions allowing transfer 

fees for additional consideration or real estate commissions were inapplicable and (2) the district court 

properly denied the plaintiffs' claim for damages for future lost profits. Lost profits resulting from a breach 

of contract may only be recovered as damages when such profits are proved with reasonable certainty and 

when they may reasonably be considered to have been within the contemplation of the parties. While 

11

absolute certainty in proving loss of future profits is not required, a damage award for lost profits cannot be 

based upon purely speculative or problematic evidence. There must be some reasonable standard to 

determine damages. When, as in this case, claimed damages for future lost profits depend upon future 

developments that are contingent, conjectural, and improbable, they are speculative and not reasonably 

ascertainable. 

Kincaid v. Dess 

___ Kan. App. 2d ___, 298 P.3d 358, 2013 WL 856463 (Mar. 8, 2013) (Green, J.) 

Petition for Review filed Apr. 8, 2013 


The Kincaids appeal from a summary judgment granted in favor of the Desses involving the Kincaids' 

breach of contract, fraud, negligent misrepresentation, civil conspiracy, and rescission claims. Here, the 

Kincaids purchased a house from Sirva Relocation LLC (Sirva). The bases of the Kincaids' claims involve 

the alleged failure of the Desses to disclose the true condition of their home before they sold it to Sirva. The 

Desses moved for summary judgment, which the trial court granted. On appeal, the Kincaids contend that 

the trial court erred in granting summary judgment on their breach of contract, fraud, and negligent 

misrepresentation claims. The Court of Appeals agreed and reversed and remanded for trial on the 

Kincaids' breach of contract, fraud, and negligent misrepresentation claims; however, the Court of Appeals 

affirmed the trial court's grant of summary judgment in favor of the Desses on the Kincaids' civil 

conspiracy and rescission claims. On the breach of contract claim, the court held that privity was 

established because the Kincaids were intended third-party beneficiaries and because the disclosure 

statements were incorporated by reference into the contract between Sirva and the Kincaids. On the fraud 

and negligent misrepresentation claim, the Desses maintained that the Kincaids could not establish 

reasonable reliance. In relying on Osterhaus v. Toth, 291 Kan. 759, 249 P.3d 888 (2011), the Court held 

that a buyer does not need to provide a separate writing to show reasonable reliance which is an essential 

element of fraud and negligent misrepresentation and that a buyer does not waive their right to rely upon 

the sellers representations by signing a sales agreement. 

State ex rel. Hecht v. City of Topeka 

___ Kan. ___, 293 P.3d 713 (Feb. 1, 2013) (Per curiam) (Daniel A. Duncan, 

District Judge, assigned vice Justice Mortiz) 


The council of the City of Topeka passed a resolution authorizing the City to enter into a contract to 

purchase a helicopter from Schreib-Air. The contract was in the form of a lease-purchase agreement, by 

which the City agreed to a pay a down payment that Schreib-Air would keep as liquidated damages if the 

City failed to fulfill its obligations. After the contract was signed, the mayor vetoed the resolution, which 

the council failed to override. The city manager nonetheless authorized a third-party financing company to 

send the down payment to Schreib-Air. The State then filed suit seeking a declaratory judgment that the 

contract between the City and Schreib-Air was void because it violated the cash-basis law, K.S.A. 10-1101 

et seq. The district court granted summary judgment in favor of the City and ordered Schreib-Air to return 

the down payment. On appeal, Schreib-Air argued that the contract was valid when it was entered into and 

that any violations of the cash-basis law were attributable solely to the City's third-party financing contract. 

The Supreme Court first noted that the cash-basis law prohibits municipalities from creating indebtedness 

in excess of funds actually on hand in the treasury of the municipality. K.S.A. 10-1112. Contracts entered 

into in violation of the cash-basis law are void. K.S.A. 10-1119. As an exception to this general rule, leasepurchase 

agreements may be valid if approved by a majority vote of all members of the governing body of 

the municipality. K.S.A. 10-1116b; K.S.A. 10-1116c(a). Since there was no evidence that the City had the 

entire purchase price of the helicopter on hand in the treasury, and the undisputed facts clearly showed that 

the contract was not approved by a majority vote of the City's governing body at the time it was entered 

into, the contract was ultra-vires, void, and unenforceable because it violated the cash-basis law. Thus, the 

decision of the district court was affirmed. 

12

USD No. 446 v. Sandoval 

295 Kan. 278, 286 P.3d542 (Aug. 31, 2012) (Rosen, J.) (Luckert, J., concurring 

and dissenting) (Nuss, C.J., dissenting) 

Case 101,145 

The Kansas Supreme Court stated that the parties to a contract may mutually rescind their contractual 

obligations. The court held that assuming a contract existed, an essential term of the contract required 

Sandoval, the teacher, to leave the classroom by March 28 in order to qualify for KPERS disability 

benefits. Nevertheless, the District provided no substitute teacher beginning on March 28 and did not 

inform Sandoval that she was not to come to the school and teach her classes as of that date. Instead, she 

finished her teaching duties for the year and the District paid her salary for that term. The board sent her a 

letter informing her that it would not renew her contract, and on April 14, 2008, the board adopted a 

resolution of nonrenewal. The actions by both the board and Sandoval were clearly inconsistent with the 

existence of a contract to terminate her employment as of March 28 and each acquiesced in the conduct of 

the other. The parties abandoned any intent to be bound by the agreement. The Kansas Supreme Court 

concluded as a matter of law that no enforceable contract existed between the parties. Justice Luckert 

agreed that the district court's and Court of Appeals' decisions should be reversed, but dissented that the 

case is appropriately resolved on summary judgment because of the conflicting intent of the parties. Chief 

Justice Nuss dissented and would affirm the lower decisions that the uncontroverted facts establish the 

parties entered into a binding oral contract on March 10, 2008. 

Waste Connections of Kansas, Inc. v. Ritchie Corporation 

___ Kan. ___, 298 P.3d 250 (Mar. 22, 2013) (Beier, J.) 


This dispute arose out of Waste Connections of Kansas, Inc.'s right of first refusal to buy a waste transfer 

station that it operated but Ritchie Corporation owned. Ritchie entered into negotiations to sell the waste 

transfer station and adjoining landfill to Cornejo & Sons. Cornejo agreed to pay $4,950,000 total, of which 

$2 million was for the rights and obligations to the transfer station. Ritchie and Cornejo agreed that if 

Waste Connections exercised its right of first refusal to the transfer station, the purchase price for the 

remaining assets would be $3.5 million. When Ritchie informed Waste Connections of the offer, as 

required, Waste Connections replied that it wanted to exercise its option to purchase Ritchie's interest in the 

transfer station, but that it would do so at the price of $1.45 million—the $4.95 million total minus the $3.5 

million that Cornejo would pay for everything but the transfer station—not the $2 million that Ritchie 

requested. Ultimately, Waste Connections paid Ritchie $2 million but reserved its rights to pursue 

repayment of the disputed $550,000, for which it sued. The parties agreed that the issue for resolution was 

identification of the correct transfer station price and filed cross-motions for summary judgment. The 

district court entered judgment for Ritchie and awarded costs, expenses, and attorney fees, finding that the 

right of first refusal, as written in the escrow agreement, required Waste Connections to step into the shoes 

of a third-party purchaser and purchase Ritchie's transfer station interest for the same price offered or 

agreed to by a bona fide third-party purchaser. The court also found that the price for the transfer station 

was $2 million. Waste Connections appealed, and a panel of the Court of Appeals reversed the district court 

and granted judgment to Waste Connections. Ritchie petitioned for review and our Supreme Court decided 

that neither party was entitled to summary judgment in its favor; the court remanded to the district court for 

trial on the merits of Waste Connections' breach of contract claim, including allegations of Ritchie's bad 

faith, because genuine issues of material fact existed. Further, our Supreme Court found that Waste 

Connections did not waive its claim that it should only pay $1.45 million when it informed Ritchie that it 

exercised its right of first refusal. 

See also, Unified Government of Wyandotte County/Kansas City v. IBEW Local 53, 48 

Kan. App. 2d 128, 286 P.3d 570 (Aug. 24, 2012) (Pierron, J.) (Arbitration) 

13

COPARENTING AGREEMENT 

DAMAGES 

Frazier v. Goudschaal 

___ Kan. ___, 295 P.3d 542 (2013) (Feb. 22, 2013) (Johnson, J.) 


Goudschaal and Frazier were committed to a long-time, same-sex relationship, during which they jointly 

decided to have 2 children via artificial insemination. In conjunction with the birth of each child, the couple 

executed a coparenting agreement that, among other provisions, addressed the contingency of a separation. 

A few months after the couple separated, Goudschaal notified Frazier that she was taking the children to 

Texas, prompting Frazier to file this action seeking to enforce the coparenting agreement. The district 

court's final order divided all of the women's property, awarded the couple joint legal custody of the two 

children, designated Goudschaal as the residential custodian, established unsupervised parenting time for 

Frazier, and ordered Frazier to pay child support. Goudschaal appealed. 

The Kansas Supreme Court held that the district court had jurisdiction to divide the parties' property; to 

determine the existence or nonexistence of a mother and child relationship between Frazier and the two 

children; to determine the validity and effect of the coparenting agreement; and to enter such orders with 

respect to child custody, parenting time, and child support that are in the best interests of the children. The 

court also held that the coparenting agreement between the biological mother and her same-sex partner 

contained no element of immorality or illegality and did not violate public policy, but rather the contract 

was for the advantage and welfare of the children, rendering it enforceable by the district court to the extent 

it is in the best interests of the children. 

Evenson v. Lilley 

295 Kan. 43, 282 P.3d 610 (Aug. 17, 2012) (Rosen, J.) 


The Evensons owned 160 acres of rural property in Greenwood County. Lilley, the lessee of an adjacent 

lot, lost control of a fire when he was conducting a controlled burn of his land. The fire spread onto the 

Evensons' lot and burned down numerous trees and some dilapidated outbuildings. Evenson sued for 

negligence, requesting damages in excess of $75,000 for the lost value of the trees. The district court, 

however, awarded only $7,687, which was the difference in value of the land before and after the fire along 

with the cost to clean up the debris. The Court of Appeals affirmed. The Kansas Supreme Court affirmed as 

well, but for reasons different from the Court of Appeals. Generally, the measure of damages for the 

destruction of productive trees is the difference in value of the land before and after the injury. But this rule 

is flexible, and the proper measure of damages depends on the owner's use of the trees. For example, if 

trees lost were going to be sold as lumber, then the measure of damages might be lost profits from the sale 

of the trees. In this case, Evenson put on very little evidence that the trees on his land had any special value 

apart from the land itself. So although the "temporary" or "permanent" dichotomy that the Court of Appeals 

relied on to affirm the district court's decision was not the correct legal standard to apply to the trees, the 

ultimate decision affirming the district court was correct. Accordingly, the Supreme Court affirmed the 

decision. 

14

DEBTOR-CREDITOR 

First National Bank of Omaha v. Centennial Park LLC, et al 

___ Kan. App. 2d ___, ___ P.3d ___, 2013 WL 1173914 (Mar. 22, 2013) (Green, 

J.) 


Bank entered into commercial loan agreement for nearly $10 million with debtors for commercial real 

estate development. Debtors defaulted on the loan. District court granted summary judgment in bank's 

favor for principal amount plus interest. Debtor raised four arguments to the Court of Appeals: (1) that 

equitable principles should have prevented bank from accelerating their loan debt obligation although bank 

could accelerate loan under the terms of the promissory note; (2) that the district court erred when it found 

that debtors had not substantially performed under the terms of the loan documents and therefore had 

committed a material breach of the contract; (3) that bank waived its right to accelerate the loan debt by 

depositing debtors' check in its account; and (4) that bank breached implied covenant of good faith and fair 

dealing when it sent debtors a billing statement requiring a principal payment of $1,350,000. The Court of 

appeals held the following: (1) equitable principle that debtors relied on—mistake—didn't apply because 

no mistake was made; (2) district correctly held that debtors had not substantially performed under the 

terms of the note and the loan documents, and, therefore, had materially breached the contract; (3), bank 

didn't waive its right to accelerate loan debt by accepting debtors' late payment because parties' note 

contained multiple anti-waiver provisions; and (4) bank didn't breach implied covenant of good faith and 

fair dealing when it sent debtors a billing statement requiring a principal payment of $1,350,000. Although 

district court determined that debtors didn't owe a principal payment of $1,350,000 on April 10, 2010, 

district court found that debtors owed an unpaid balance of $176,880.57 on that date. 

DEFAULT JUDGMENT 

Church of God in Christ, Inc. v. Board of Trustees of Emmanuel Church of God in 

Christ 

47 Kan. App. 2d 674, 280 P.3d 795 (June 8, 2012) (Bruns, J.) 


The Church of God in Christ, Inc. (COGIC) is a hierarchical denominational church organized by 

jurisdictions separately headed by a bishop. The Emmanuel Church of God in Christ, Wichita, Kansas, is a 

member of the COGIC that belongs to the Kansas Southwest Jurisdiction. The Emmanuel Church 

purchased real property (Mascot property), which it used to hold worship services and to conduct church 

business. After the Emmanuel Church's pastor died, Bishop Joseph C. Gilkey, Sr. temporarily assumed the 

pastorate under the terms of the COGIC's constitution. Although members of the Emmanuel Church 

subsequently requested the appointment of a specific pastor, Bishop Gilkey appointed someone else. This 

caused an immediate dispute and eventually the Emmanuel Church announced its decision to unilaterally 

transfer to the Kansas Central Jurisdiction; church members changed the locks to the Mascot property and 

attempted to deny Gilkey access to the church building. The COGIC filed a lawsuit seeking an injunction 

and further relief. After more than 3 years of litigation, the parties entered into a settlement agreement; 

shortly thereafter, however, the parties' dispute resumed and the COGIC subsequently filed the present 

lawsuit. After the district court entered a temporary injunction, the COGIC filed its first amended petition. 

About 3 months later, the COGIC filed a motion for default judgment because the defendants had failed to 

file an answer. After a hearing, the district court entered a default judgment and awarded the COGIC 

injunctive relief and monetary damages. On appeal, the defendants challenged the district court's order on 

several grounds, including contending that the district court improperly entered a default judgment. The 

Court of Appeals concluded that the district court did not abuse its discretion because it was undisputed that 

the defendants did not file an answer nor did they seek leave to file an answer out of time, the defendants 

did not adequately explain why they failed to file an answer, the failure to answer was not an isolated 

15

incident (defendants failed to comply with the rules of civil procedure on other occasions), and the 

defendants delayed the progression of the litigation. The Court of Appeals also recognized that the 

defendants did not file a motion to set aside the default judgment, and as such, the defendants did not 

preserve this issue for appeal. The Court of Appeals noted, however, that prior to the adoption of the code 

of civil procedure, the Kansas Supreme Court held that a default judgment could be set aside if it was 

clearly erroneous even if no motion to set aside was filed. Although the Court of Appeals questioned 

whether this rule was still applicable, it found that the default judgment was not clearly erroneous. The 

defendants also challenged the district court's order, contending, in part, that the civil courts lacked subject 

matter jurisdiction because the issues involved arise out of the appointment of a pastor. The Court of 

Appeals explained that the jurisdiction of civil courts to address matters involving church affairs is limited. 

Neither state nor federal courts may undertake the resolution of quintessentially religious controversies, 

whose resolution the First Amendment commits exclusively to the highest ecclesiastical tribunals of the 

church. Accordingly, civil courts do not have subject matter jurisdiction over issues relating to the selection 

of a pastor or minister because the Establishment Clause prohibits the government from such ecclesiastical 

decisions. However, when church-related controversies involve civil or property rights, civil courts have 

jurisdiction to assure regularity of business practices and the right of private use and ownership of property. 

Finding that this case involved a property dispute rather than a dispute over the authority to appoint or call 

a pastor, the Court of Appeals held that the district court had subject matter jurisdiction, and the Court of 

Appeals had subject matter jurisdiction to consider this appeal. Next, the defendants challenged the district 

court's order contending, in part, that the district court should have dismissed the case based on res judicata 

and collateral estoppel. Because the defendants failed to come forward with any authority suggesting that 

these affirmative defenses were not waived by their failure to file an answer or other responsive pleading, 

the Court of Appeals concluded that the affirmative defenses of res judicata and collateral estoppel were 

waived as a matter of law. Finally, on appeal, the defendants challenged the district court's order 

contending that the default judgment should be reversed because the corporation that holds the title to the 

Mascot property was not named as a party. The Court of Appeals concluded that the district court could 

properly trace or pursue the trust property and award the COGIC control of the corporation and the building 

without making the corporation a party. The Court of Appeals explained that although a local church is 

permitted to incorporate under the COGIC rules, incorporation does not change the trust relationship that 

exists between the local church and the COGIC. Accordingly, when the defendants decided to create a 

corporation and deed the Mascot property to it, they were still required to hold ownership of the property in 

trust for the national church. Thus, the COGIC continued to be entitled to possession of the property 

regardless of the corporate status of the local church. Moreover, the trustee defendants transferred the 

property multiple times and formed the corporation in an attempt to avoid their trust obligation to the 

COGIC. As such, the district court, as a court of equity, was entitled to make such a decree as justice 

demands, which includes the imposition of a constructive trust and/or application of the "trust pursuit rule." 

Turner v. Steele 

47 Kan. App. 2d 976, 282 P.3d 632 (July 20, 2012) (Marquardt, J.) 

Petition for Review filed Aug. 20, 2012 


The court stated that a sheriff's deed is sufficient evidence of the legality of the sheriff's sale and vests title 

to the property in the purchaser under K.S.A. 60-2416. A party challenging the validity of a sheriff's deed 

has the burden of proving its invalidity. Thus, the court found that the district court's conclusion that its 

order confirming the sheriff's sale did not establish title missed the mark—the confirmation clearly affected 

the Landowners' title in a significant manner. Title owners of real property have standing to request a delay 

of the sheriff's sale or a subsequent confirmation of the sale because such actions could result in a cloud on 

their title or otherwise negatively affect their title to the real property. The court held that the lack of the 

Landowners' formal intervention did not deprive them of standing to seek the relief they were requesting. 

The Landowners were not challenging the judgment; they were simply seeking a stay of execution of the 

judgment against their real property until a decision was made whether the judgment was valid against the 

real property. The court stated that the Landowners established legitimate grounds to stay the sheriff's sale 

16

and the confirmation of the sale pending resolution of the quiet title action. The court held that the district 

court abused its discretion and erred in refusing to stay the sheriff's sale and refusing to rule on the 

subsequent requests to stay the confirmation and to extend the redemption period. 

DRIVER'S LICENSE REVOCATION 

Pratt v. Kansas Department of Revenue 

___ Kan. App. 2d ___, 296 P.3d 1128 (Feb. 8, 2013) (Arnold-Burger, J.) 


After arresting Pratt for DUI based on her failure of a BAC test, the officer personally served her with a 

DC-27 form, which served, in part, as the notice to Pratt of the resulting suspension of her driving 

privileges required by K.S.A. 2010 Supp. 8-1002(c). The officer failed, however, to check a box under 

paragraph 8 of the DC-27 form to certify that personal service, as opposed to service by mail. In her 

petition for review of the resulting suspension of her driving privileges by the Kansas Department of 

Revenue (KDR), Pratt argued the officer's failure to check the box deprived the KDR of jurisdiction. The 

district court disagreed and affirmed the suspension of Pratt's driving privileges. On review, the Court of 

Appeals held that an officer's failure to certify the manner of service of the DC-27 form does not, standing 

alone, deprive the KDR of jurisdiction to suspend or restrict driving privileges because such certification is 

not statutorily required. The Court of Appeals also held that when an officer strictly complies with the 

requirements of K.S.A. 8-1002, the doctrine of substantial compliance is irrelevant. And finally, the Court 

of Appeals held the record refuted Pratt's arguments that she was prejudiced by the officer's failure to check 

the box. 

Shrader v. Kansas Department of Revenue 

296 Kan. 3, 290 P.3d 549 (Dec. 14, 2012) (Nuss, C.J.) 


Officers saw Shrader’s vehicle make a left turn without signaling and they also knew Shrader was driving 

on a suspended license. Officers stopped Shrader as he pulled into his driveway. Shrader got out of his 

vehicle and walked toward his house. Officers detected a moderate smell of alcohol on his breath. Shrader 

produced an expired license and expired proof of insurance. When backup arrived, officers asked Shrader 

to perform field sobriety tests. Officers told him he was not under arrest, but that driving while suspended 

in an arrestable offense. Shrader declined field sobriety testing and a PBT. Officers arrested Shrader and at 

the station Shrader refused a breath test. KDOR revoked Shrader's driver's license. The district court 

affirmed Shrader's suspension. The Court of Appeals reversed. 

Court affirmed the Court of Appeals and held that the plain language of K.S.A. 8-1001(b) requires an arrest 

for an alcohol-related driving offense rather than simply requiring an arrest for any offense involving 

operation of a motor vehicle. Court held that under the facts of this case, the offense for which defendant 

was arrested does not authorize the arresting officer under K.S.A. 8-1001(b) to request an evidentiary 

breath test. Consequently, the defendant's refusal to take the test cannot be the basis for suspending his 

driving privileges under K.S.A. 8-1014(a), and they must be reinstated. 

DRIVER'S LICENSE SUSPENSION 

Byrd v. Kansas Dept. of Revenue 



The Supreme Court held that by enacting K.S.A. 2011 Supp. 8-1002(c), which requires a law enforcement 

officer to serve a notice of driver's license suspension by mailing the notice to the driver, the Kansas 

Legislature intended to give the officer the responsibility of ensuring that the notice was mailed. The 

legislature did not intend that the officer must physically perform the acts of addressing, stamping, and 

17

DRUG TAX 

placing the envelope containing the notice in a receptacle for mail pickup. The Court conducted a statutory 

interpretation analysis to reach its conclusion, finding that the word "mailing" was ambiguous and 

following the canon of construction requiring it to construe a statute in a reasonable manner. In this case, an 

Atchison County Sheriff's officer ensured mailing by following the sheriff's standard operating procedure 

for mailing the notice. 

Sloop v. Kansas Dept. of Revenue 

296 Kan. 13, 290 P.3d 555 (Dec. 14, 2012) (Nuss, C.J.) 


After watching Kenneth Sloop make a hesitant left-hand turn during which he was "sitting unusually close 

to his steering wheel," police officer Cris Bergerhofer followed Sloop for 8 to 10 blocks. Although Sloop 

committed no traffic infractions, Bergerhofer stopped him because Sloop's tag light was out. Sloop said he 

had consumed one beer; Bergerhofer smelled alcohol and saw that Sloop's eyes were watery and bloodshot. 

Bergerhofer performed a preliminary breath test, after which he arrested Sloop and took him to the station 

for field sobriety tests, on which Sloop showed only three clues of impairment. Sloop then refused to take 

the requested evidentiary breath test and the Kansas Department of Revenue suspended his driver's license. 

On appeal, the district court and the Court of Appeals both affirmed the suspension. In order to request an 

evidentiary breath test, (1) Bergerhofer needed reasonable grounds to believe Sloop was operating his 

vehicle under the influence of alcohol or drugs or both and (2) Sloop must have been arrested or otherwise 

taken into custody for an offense involving such illegal operation. The Supreme Court held that in order to 

satisfy the second requirement, the arrest must be lawful. Explicitly disapproving language used by the 

Court of Appeals defining probable cause as information that "leads a reasonable officer to believe that 

guilt is more than a possibility," the Supreme Court found that Bergerhofer did not have probable cause to 

support his warrantless arrest of Sloop; therefore, his subsequent request that Sloop take an evidentiary 

breath test was improper. Accordingly, because the driver's license suspension was based on Sloop's refusal 

to take the test, the suspension was invalid and the Supreme Court reversed and reinstated Sloop's driving 

privileges. 

In Re Tax Appeal of Burch 

___Kan. ___, 294 P.3d 1155 (Feb. 22, 2013) (Moritz, J.) 


Burch’s motor home was pulled over for no license tag, but then the officer noticed a temporary tag in the 

window. Officer asked for the driver’s license and registration. The temporary tag identified Burch, a 

passenger, as the owner. When a passenger opened the door to find the VIN number, officers saw an open 

alcoholic beverage and then once inside the motor home found drugs, drug paraphernalia and $15,000 in 

cash. Burch was charged with drug crimes, but the district court suppressed all the evidence from the stop 

finding that once the officer had information that the temporary tag was legal, there was no reasonable 

suspicion to extend the stop. One week after the district court dismissed Burch’s criminal charges, the 

Kansas Department of Revenue issued a tax assessment notice indicating that Burch owed $17,761 in taxes 

and penalties on the drugs found in the motor home. The Court of Tax Appeals rejected Burch’s argument 

that the exclusionary rule applied to the unlawfully seized drugs and would thus invalidate the tax 

assessment. COTA granted summary judgment to KDOR and allowed collection of the taxes. 

Court held the COTA erroneously determined that K.S.A. 79-5205(b) precluded it from considering 

application of the exclusionary rule to the Director's assessment of taxes against Burch. Based on this 

erroneous conclusion, COTA improperly granted summary judgment to KDOR, disregarding Burch's 

factual arguments. Therefore, Court remanded the case to COTA to consider application of the 

exclusionary rule to the circumstances of this case. Court stated it was unclear from the record whether 

Burch had an adequate opportunity to conduct discovery on the issue of application of the exclusionary 

18

ule. Thus, on remand, COTA must first determine the scope and duration of additional discovery, if any. 

Once any additional discovery is completed, COTA should determine whether the tax assessment 

proceeding was within the officer's zone of primary interest at the time of the Fourth Amendment violation. 

If so, COTA must then consider whether the deterrent benefits of suppression outweigh its heavy costs. 

DUE PROCESS 

Friedman v. Kansas State Board of Healing Arts 

___ Kan. ___, 294 P.3d 287 (Feb. 15, 2013) (per curiam) 


On appeal, Dr. Friedman seeks the reversal of an order of the Kansas State Board of Healing Arts (Board) 

in which the Board revoked his license to practice medicine and surgery in the state of Kansas. Friedman 

presents several issues, including whether the Board had jurisdiction to initiate a revocation proceeding 

after Friedman's license expired, whether the Board denied him due process, and whether there was 

substantial evidence to support the Board's findings. Our Supreme Court held the Board had jurisdiction to 

revoke Friedman's license to practice medicine and surgery because Friedman was practicing medicine 

under the authority of a license issued by the Board when he committed the misconduct at issue in the 

revocation proceeding. Our Court also rejected Friedman's other arguments, concluding he effectively 

abandoned a due process argument by failing to adequately brief it and he failed to establish a lack of 

substantial evidence to support the administrative hearing officer's initial order and the Board's final order. 

The Court then affirmed the Board's order and the district court's decision upholding that order. 

In re Marriage of Hutchison 

47 Kan. App. 2d 851, 281 P.3d 1126 (June 29, 2012) (Arnold-Burger, J.) 


The court held that a weighing of the three Mathews, 424 U.S. 319, due process factors leads to the 

conclusion that when the case manager's recommendations materially affect a parent's right to the care, 

custody, and control of a child and the case manager's report relies upon material facts that are either not 

supported by specific factual references or are specifically disputed by a parent, due process requires that 

the district court conduct an evidentiary hearing prior to ruling on the recommendations. The court 

recognized that although this holding may result in courts having busier dockets, the information received 

at such a hearing will aid the courts in deciding whether the case manager's recommendations are in the 

best interests of the child and insure that due process, one of the most sacred and essential constitutional 

guarantees, is provided to the parties. The court also found that the failure to timely file a motion requesting 

that the trial judge recuse himself or herself from the proceedings below bars the party from raising the 

issue on appeal. 

Village Villa v. Kansas Health Policy Authority 

296 Kan. 315, 291 P.3d 1056 (Jan. 11, 2013) (Biles, J.) 


Three corporations, each of which owns a nursing home facility, want their Medicaid reimbursement rates 

recalculated because they believe there was a change of ownership authorizing the adjustments. The Kansas 

Department on Aging (KDOA) and Kansas Health Policy Authority (KHPA) denied recalculation because 

of common ownership between the buyers and sellers, which they determined barred the rate changes. On 

review, the district court agreed. Court held there is factual support for KHPA's action. Village Villa 

conceded the three corporations that purchased the nursing facilities were solely owned by Goracke and 

that he previously owned 20 percent of the corporations that sold the nursing facilities to the three 

purchasing companies. Court denied Village Villa's equal protection claim stating that the commonownership 

classification of K.A.R. 30-10-1a(a)(9) bears a reasonable relationship to a valid legislative 

purpose of controlling Medicaid coasts. As far as the due process/vagueness argument, court found the 

19

pertinent part of K.A.R. 30-10-la(a)(36)(C) states: "Related parties shall include parties related by family, 

business, or financial association, or by common ownership or control." These are commonly used words. 

Village Villa failed to elaborate as to why it argues vagueness other than its bald allegation that the 

regulation is vague. Without any substance behind it, Court deemed the argument to be abandoned. 

ECONOMIC LOSS DOCTRINE 

Coker v. Siler 

___ Kan. App. 2d ___, ___ P.3d ___, 2013 WL 1850756 (May 3, 2013) 

(Standridge, J.) 


After Coker's new home was damaged, he filed a lawsuit for breach of express warranty against the 

company that sold him the house and for negligence against the plumber whose act caused the damage. The 

district court ultimately dismissed Coker's claim of negligence against the plumber based on the economic 

loss doctrine, which, as it existed under Kansas law at the time, barred a homeowner from bringing a tort 

action under circumstances governed by contract where the only damages claimed are economic losses. 

However, a subsequent Kansas Supreme Court ruling refused to extend the economic loss doctrine to 

homeowner claims against construction contractors. Thus, the Court of Appeals held that the economic loss 

doctrine did not preclude Coker from seeking economic damages from the plumber for negligently 

performed residential construction services. However, it noted Coker's tort claims would survive only if he 

could establish that the plumber owed him a duty imposed by law to perform his services free from 

negligence. Because there was no evidence of an underlying agreement between Coker and the plumber, 

the court found Coker's claim that the plumber breached a duty under an implied warranty failed. However, 

the court found the plumber owed Coker a legal duty to perform plumbing services without negligently 

causing economic injury to third parties. Noting that the district court had found Coker offered sufficient 

evidence to present a question of fact, the Court of Appeals reversed and remanded so that Coker could go 

forward with his tort claim against the plumber. 

EMINENT DOMAIN AND INVERSE CONDEMNATION 

City of Wichita v. Denton and Clear Channel Outdoor, Inc. 

296 Kan. 244, 294 P.3d 207 (Jan. 4, 2013) (Per Curiam) 


City of Wichita brought eminent domain proceedings to condemn landowner's real property for highway 

purposes. Billboard Company had leased from landowner approximately 500 square feet of the property for 

the operation of a billboard. Appraiser valued entire tract at $1,075,600 with no compensation given for the 

billboard structure and with no consideration as to the advertising income produced by billboard company's 

leasehold. Billboard company appealed appraisers value to district court. District court granted summary 

judgment in favor of City, affirming appraiser's award. On direct appeal to the Supreme Court, billboard 

company argued that the sign structure was a leasehold improvement destroyed by the taking rather than 

merely noncompensable personal property. In the alternative, even if the sign structure was only personal 

property, billboard company argued that the sign structure's value was relevant to overall value of the tract 

because lost rental income from it was the direct result of the leasehold location. Billboard company also 

argued that the value of the leasehold for advertising purposes was relevant because it enhanced the value 

of the property as a whole. The Supreme court affirmed, finding that the district court did not err in 

granting the City's motion for summary judgment because billboard company did not come forward with 

relevant and admissible evidence that could alter the appraiser' valuation of the land at issue. The Supreme 

Court reasoned that summary judgment in City's favor was proper because even though some of the 

structural components were or would be destroyed upon removal, the sign structure retained its character as 

mere personality or a trade fixture. 

20

Miller v. Preisser 

295 Kan. 356, 284 P.3d 290 (Aug. 31, 2012) (Luckert, J.) 


Landowners appealed from a damages award in an eminent domain action. The Kansas Supreme Court 

reversed to allow landowner to present evidence related to the doctrine of assemblage, which is a theory of 

valuation that allows consideration of condemned property as an integrated economic unit with an adjacent 

property. The court held that proof of unity of ownership is unnecessary to use that doctrine to establish the 

highest and best use of the property; rather, the landowner must establish that there is a reasonable 

probability of joinder of the properties, which is a jury question. The court cautioned, however, that while 

landowners can present evidence regarding use of their property as an integrated economic unit with 

adjacent property, they cannot seek damages related to the impact on the value of the adjacent property. 

The court upheld the district court's ruling that damages could not be realized based on a change of traffic 

patterns. This is because the condemned property had the same direct access to the abutting roadway before 

and after the condemnation, and a change in the traffic pattern is not a compensable loss. The court further 

held that it and the district court lacked jurisdiction in an eminent domain action to consider landowners' 

challenge to reasonableness of the government's exercise of its police power in regulating traffic flow 

because if the government's action was unreasonable, it is a void action, not a compensable taking. 

EMPLOYMENT LAW 

Milano's, Inc. v. Kansas Dept. of Labor, Contributions Unit 

___ Kan. ___, 293 P.3d 707 (Feb. 1, 2013) (Beier, J.) 


After Milano's, Inc., purchased Club Orleans , it began treating the club's exotic dancers as independent 

contractors rather than employees. A dancer filed an unemployment claim and the auditor assigned by the 

Unemployment Tax Contributions Unit of the Kansas Department of Labor concluded that the dancers 

were employers under K.S.A. 44-703(i)(3)(D), which states that "employment" also includes "services 

performed by an individual for wages" unless certain exceptions are met. Milano's challenged the 

determination, but a Department of Labor hearing officer determined that the dancers' tips qualified as 

wages and therefore, under the same statutory subsection, the dancers were employees. On further appeal, 

the district court agreed with the hearing officer and the Court of Appeals affirmed the district court. The 

Kansas Supreme Court found it unnecessary to perform the analysis under K.S.A. 44-703(i)(3)(D) because 

the more direct and straightforward analysis pursuant to K.S.A. 44-703(i)(1)(B) answered the question of 

whether the dancers were employees or independent contractors. The Court held that the exotic dancers 

were employees under the common law rules expressly incorporated into K.S.A. 44-703(i)(1)(B); the Court 

further stated that the critical common-law factor was the club's right of control over the dancers and their 

work. 

EQUAL PROTECTION 

See also, Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 291 P.3d 1056 

(Jan. 11, 2013) (Biles, J.) (Due Process) 

EXCLUSIONARY RULE 

See also, In Re Tax Appeal of Burch, ___Kan. ___, 294 P.3d 1155, No. 102,354 (Feb. 

22, 2013) (Moritz, J.) (Drug Tax) 

21

FAMILY LAW 

In re Marriage of Taber 

47 Kan. App. 2d 841, 280 P.3d 234 (June 29, 2012) (Arnold-Burger, J.) 

Petition for Review filed July 20, 2012 

Case No. 105,922 

The court held that lump-sum SSDI benefits for back benefits received by Mother on behalf of her minor 

child because of Father's disability may be credited toward Father's child support arrearage that 

accumulated during the months covered by the lump-sum payments. 

In re Marriage of Merrill 

47 Kan. App. 2d 943, 281 P.3d 559 (July 6, 2012) (Marquardt, J.) 


The court stated that the district court should not rubber stamp a request for costs and professional fees 

against a party who objects to a case manager's recommendation. The court held that the district court must 

make findings as to the reasonableness of the charges, taking into consideration whether the fees were 

incurred for services involving custody decisions or whether they were incurred for reassignment or 

withdrawal of the case manager. The court held that because a motion to withdraw is not advancing the 

statutorily defined role of case manager, a case manager's time spent preparing a motion to withdraw as 

case manager and time spent defending against a motion to reassign the case manager are not appropriate 

bases for assessing fees to either party. The district court's assessment of costs and fees against Merrill 

constituted an abuse of judicial discretion. The case was remanded to the district court for a determination 

of the amount of fees appropriately attributable to the case manager's role and not the time spent in 

justifying his continued employment as the case manager. The court remanded the case to a different 

district court judge; affirmed the district court's decision on the case manager's motion to withdraw; 

reversed the district court's denial of the motion to assign a new case manager; charged the district court 

with determining whether a case manager is necessary, and if a case manager is required, appoint a 

different case manager; and vacated the fee award with instructions to hold an evidentiary hearing for the 

purpose of determining the amount, if any, of the case manager's billable time and whether it was 

legitimately based on his role as a case manager. 

In re Marriage of Hall 



At a hearing in a divorce proceeding, the wife asked the court to order the husband to cooperate with her 

efforts to obtain a life insurance policy on the husband—which she would pay for—as security for the 

payment of any maintenance or child support the court would order the husband to pay. The husband 

objected to the request, arguing the court lacked jurisdiction to enter the order, but the district court ordered 

the husband to cooperate with the wife's attempts to obtain the life insurance. The Court of Appeals 

affirmed the district court's order. On review, the Supreme Court reversed, holding that a district court 

cannot issue such an order because the order would be contrary to public policy as expressed by the Kansas 

Legislature in K.S.A. 40-453(a). The statute provides that an insurable interest does not exist if a person 

whose life is insured makes a written request for the termination or nonrenewal of the policy. 

See also, Frazier v. Goudschaal, ___ Kan. ___, 295 P.3d 542 (2013) (Feb. 22, 2013) 

(Johnson, J.) (Coparenting Agreement); In re Marriage of Hutchison, 47 Kan. App. 2d 

851, 281 P.3d 1126 (June 29, 2012) (Arnold-Burger, J.) (Due Process) 

22

FOREIGN JUDGMENTS 

FRAUD 

Master Finance Co. of Texas v. Pollard 

47 Kan. App. 2d 820, 283 P.3d 817 (June 22, 2012) (Arnold-Burger, J.) 


Master Finance Co. of Texas (Master Finance) and Kim Pollard entered into a payday loan contract. Master 

Finance loaned Pollard $100 with a 199.91% interest rate. Pollard defaulted on the loan payment, and 

Master Finance filed a lawsuit in Missouri against Pollard. When Pollard failed to answer or appear, Master 

Finance was granted a default judgment against Pollard in Missouri, with the postjudgment interest rate set 

at the contract rate—199.91%. Later, the Missouri judgment was filed in Kansas as a foreign judgment. 

Master Finance requested an order for wage garnishment, which was granted. Pollard objected to the wage 

garnishment. After a hearing, the district court adjusted the postjudgment interest rate to the Kansas 

statutory interest rate, ordered the parties to enter into a voluntary withholding order, and ordered Master 

Finance to release the wage garnishment. The court stated that Pollard failed to allege any exemption 

recognized under Kansas law. Likewise, she failed to present any evidence at the hearing entitling her to an 

exemption under Kansas law. The court held that the district court abused its discretion by essentially 

creating its own exemption. The court compared Pollard's income and expenses and determined that she 

could not afford the garnishment of 25% of her disposable income. But the Kansas garnishment statutes do 

not allow for any consideration of the debtor's actual expenses. Calculation of the garnishment amount is 

based solely upon the debtor's income. Therefore, the district court's decision fell outside the statutory 

framework. The result was the quashing of a garnishment that complied with all legal requirements. 

Likewise, the district judge lacked the statutory authority to order the judgment debtor to complete a 

"voluntary" withholding order, and the court lacked the authority to order Master Finance to release its 

garnishment and accept less money per Pollard's pay period than it was entitled to under the law. The court 

also held that because the Missouri judgment includes the applicable interest rate in the judgment itself, 

there is no conflict and the judgment as a whole, including the postjudgment interest rate, must be given 

full faith and credit. The court agreed that the facts of this case cry out for equitable relief. But any 

challenge to the Missouri judgment must be raised before the Missouri courts and not in a collection action 

in this state. 

See also, Kincaid v. Dess, ___ Kan. App. 2d ___, 298 P.3d 358, Case No. 107,970 (Mar. 

8, 2013) (Green, J.) (Contracts) 

INDEMNITY FOR ATTORNEY FEES IN ACTIONS INVOLVING LIMITED 

LIABILITY COMPANIES 

Davis v. Winning Streak Sports, LLC 

___ Kan. App. 2d ___, ___ P.3d ___ , 2013 WL 1010622 (Mar. 15, 2013) 

(McAnany, J.) 


In 2006, Christopher J. Davis sued Winning Streak Sports, LLC (WSS), claiming breach of fiduciary duty 

and asserting that he was a 49% member in WSS. WSS countersued, claiming that Davis had breached his 

contract with WSS. A jury awarded Davis $600,000 in damages and found he was a member of WSS. The 

jury also determined that Davis had breached his contract with WSS and awarded WSS about $75,000 in 

damages. Following the jury trial, the district court took up the competing declaratory judgment claims and 

determined that Davis had a .96% membership interest in WSS. WSS appealed the $600,000 jury verdict, 

and Davis cross-appealed the district court's declaratory judgment. The Court of Appeals rejected both 

23

claims of error, and the Kansas Supreme Court denied further review. Davis then brought an 

indemnification action against WSS, seeking attorney fees under K.S.A. 17-7670(b). The statute governs 

indemnification in actions involving limited liability companies. The parties filed cross-motions for 

summary judgment, and the district court found that Davis was not entitled to attorney fees because he was 

only nominally successful in his suit against WSS. The Court of Appeals reserved, finding that K.S.A. 17- 

7670(b) provides a right to indemnity to the extent that "a member . . . has been successful on the merits or 

otherwise." Noting this language, the Court of Appeals held that Davis was entitled to an award of attorney 

fees that was proportionate to his success in the litigation against WSS. K.S.A. 17-7670(b) is mandatory; it 

declares that indemnity shall be provided when the party making a claim for indemnity "has been 

successful on the merits or otherwise." The Court of Appeals held that while the award of fees is 

mandatory, the district court has discretion determine the amount of fees awarded. 

INEFFECTIVE ASSISTANCE OF COUNSEL 

Edgar v. State 

294 Kan. 828, 283 P.3d 152 (July 27, 2012) (Luckert J.) (Johnson, J., dissenting) 


A jury convicted Edgar of felony murder and two counts of child abuse. Approximately 1 year after the 

court affirmed Edgar's convictions, Edgar filed a K.S.A. 60-1507 motion, raising five main issues and 

multiple sub-issues. The district court summarily rejected Edgar's 1507 motion. The Court of Appeals 

stated that due to the summary denial of Edgar's motion, there was no evidence from which the court could 

determine whether defense counsel's statements constituted a concession of guilt and, if so, whether this 

was an objectively reasonable trial strategy. The court reversed the summary denial of this issue and 

remanded for "an evidentiary hearing to determine whether trial counsel's comment was a concession of 

guilt during [trial] and, if so, whether it was an objectively reasonable trial strategy. [Citation omitted.]" 

The court affirmed the district court judge's decision on all other issues. The Kansas Supreme Court held 

that before remanding the case for an evidentiary hearing, the Court of Appeals should have assumed 

defense counsel's performance was deficient and then examined whether the district court judge erred in 

concluding that "[g]iven the overwhelming evidence in this case and the nature of the crimes, the Court 

cannot conclude that trial counsel was ineffective for making these statements or concessions or that a 

different approach would have changed the outcome as required by Chamberlain." The Court stated that 

had the Court of Appeals conducted that review, it would have undertaken a de novo review to determine if 

the motion, files, and records of the case conclusively showed that Edgar failed to establish a reasonable 

probability that, but for defense counsel's errors, the outcome of his trial would have been different. Court 

concluded that defense counsel's concessions or proposed compromises did not contradict the defense but 

actually continued the theme of the defense. A reasonable jury could have found Edgar guilty beyond a 

reasonable doubt. The Kansas Supreme Court affirmed the district court's denial of Edgar's 1507 motion. 

The dissent asserted that there is no logical difference between this case and State v. Carter, 270 Kan. 426. 

Both defendants pled not guilty to all charges against them and both defense attorneys told the jury their 

clients were guilty of some of the charges. Both defendants possessed a fundamental right to decide how to 

plead, which rights their attorneys were not entitled to unilaterally waive. The dissent would have reversed 

and remanded. 

Shumway v. State 

48 Kan. App. 2d 290, 293 P.3d 772 (Jan. 18, 2013) (Green, J.) 

Petition for Review file Feb. 15, 2013 


Defendant was convicted of intentional second-degree murder and attempted theft. his convictions were 

affirmed on direct appeal. Later, defendant filed a habeas corpus motion under K.S.A. 60-1507 (60-1507) 

alleging that he had received ineffective assistance of counsel. After an evidentiary hearing, the district 

24

court denied the 60-1507 motion. On appeal, defendant argued that the district court erred (1) when it 

concluded that defense counsel's decision not to call two alibi witnesses was reasonable trial strategy and 

(2) when it concluded that defendant's remaining ineffective assistance of counsel claims should be 

dismissed because defendant had failed to show manifest injustice. The court of appeals reversed 

defendant's convictions and remanded for a new trial. The court of appeals reasoned that defense counsel's 

decision not to call two alibi witnesses could not be approved as a matter of trial strategy because defense 

counsel had no other witnesses who could have established defendant's innocence. Moreover, defense 

counsel failed to investigate a disinterested witness with no reason to lie for defendant, who would have 

testified that the victim was with her, alive and well, both during and well past the time the State's witness 

claimed that the victim was beaten to death by defendant, was unreasonable. Because the evidence that 

defense counsel failed to present could have caused reasonable doubt in the minds of jurors, failure to 

present this evidence was prejudicial to defendant's theory of defense. In other words, the court of appeals 

believed that the inconsistent statements and credibility problems of the State's key witnesses coupled with 

the possible favorable testimony from uncalled witnesses would have cast doubt on the State's case. The 

court also held that the district court erred when it found that the claims in defendant's amended motion 

were untimely because there was nothing to bar defendant's amended claims from relating back to his 

original 60-1507 motion. 

INSURANCE 

Riley v. Allstate Insurance Co. 

48 Kan. App. 2d 60, 281 P.3d 591 (Aug. 3, 2012) (Greene, C.J.) 


The district court's summary judgment in favor of Allstate was affirmed for different reasons. K.S.A. 40- 

3109(a)(3) is more applicable in this case than K.S.A. 40-3109(b). Where a single insurer has written 

separate automobile policies for both the automobile owner and the person injured while occupying the 

vehicle, the injured person may not stack PIP coverage under both policies. 

Gold Mine Investments, Inc. d/b/a Gold Realty v. Mount Vernon Fire Insurance Co. 

and Med James, Inc. 

___ Kan. App. 2d ___, ___ P.3d ___, 2013 WL 1694796 (Apr. 15, 2013) 

(McAnany, J.) 


Appellant Gold Realty filed a claim for fire coverage with its insurance company, Defendant Mount 

Vernon Fire Insurance Company, after a commercial building it owned was destroyed by fire. Mount 

Vernon denied coverage, claiming that Gold Realty breached a clause in the insurance policy by having 

both a fuse box and circuit breakers protecting the electrical service in the building. The language of the 

policy stated: "All Electric is on Functioning and Operational Circuit Breakers." Mount Vernon argued that 

the policy stated the building's electrical circuits had to be protected by circuit breakers to the exclusion of 

any fuses. The district court granted summary judgment in Mount Vernon's favor, and Gold Realty 

appealed. The Court of Appeals reversed the district court's order of summary judgment, finding that the 

record did not resolve whether the electrical system violated the policy. The Court noted that the test for 

determining the meaning of an insurance policy is what a reasonable person in the position of the 

policyholder would understand the language to mean. Applying this test, the Court held that "[a] reasonable 

policyholder would not read the language of the policy as prohibiting the use of fuses." The Court reversed 

the order of summary judgment, stating that it was unwilling to read into the policy a new provision that 

required no fuses in any electrical circuit serving the building. The case was remanded to the district court 

for further proceedings. 

25

INVOLUNTARY CIVIL COMMITMENT 

In the Matter of the Care and Treatment of Timothy J. Burch 

296 Kan. 215, 291 P.3d 78 (Dec. 28, 2012) (Moritz, J.) 


Burch had been involuntarily civilly committed as a sexually violent predator when he petitioned the 

district court for a transitional release. The district court denied Burch's petition finding that there was no 

probable cause under K.S.A. 59-29a08(c)(1) and (2). The Court of Appeals affirmed the district court's 

decision. Burch then appealed to our Supreme Court. First, our Supreme Court held that a de novo standard 

of review applies to a district court's probable cause determination under K.S.A. 59-29a08(c)(1). Next, our 

Supreme Court held the petitioner, Burch, has the burden of proof and that the facts should be viewed in a 

light most favorable to the petitioner. Finally, our Supreme Court held that Burch failed to establish the 

requisite probable cause to entitle him to a full evidentiary hearing on his petition for transitional release 

under K.S.A. 59-29a08. The Court held that Burch failed to show probable cause that his mental 

abnormality or personality disorder had changed to the extent that he was safe to be placed in transitional 

release. 

JURIES AND INSTRUCTIONS 

Foster v. Klaumann 

296 Kan. 295, 294 P.3d 223 (Jan. 11, 2013) (Biles, J.) (Jerome P. Hellmer, 

District Judge, assigned vice Justice Moritz) 


Plaintiffs, a minor child and her parents, sued defendant, a pediatric orthopedic surgeon, for medical 

malpractice after the minor child suffered nerve damage following surgery to remove tumors from her 

bones. The jury returned a verdict in favor of defendant. The Court of Appeals reversed, finding that the 

jury instructions reasonably could have misled the jury. The Supreme Court granted defendant's petition for 

review to consider two issues: (1) whether it was error to instruct the jury on both a general physician 

standard of care (PIK Civ. 4th 123.01) and a specialist standard of care (PIK Civ. 4th 123.12) when the 

only trial evidence established the standard of care of a specialist; and (2) whether the "best judgment" 

instruction (PIK Civ. 4th 123.11) improperly suggests that a physician's subjective beliefs should be 

considered when establishing negligence because it states the physician has a right to use his or her best 

judgment when determining the course of treatment. The Supreme Court reversed the Court of Appeals and 

affirmed the district court, holding: (1) it was harmless error to instruct on both a general physician and 

specialist standard of care because the two instructions were not inconsistent where the only standard of 

care evidence presented was that of a specialist; and (2) the "best judgment" instruction as a whole did not 

misstate the law where it also referred to an objective standard of care and the instruction was factually 

supported because plaintiffs claimed that defendant erred in choosing one of multiple acceptable treatment 

options. 

JURISDICTION 

The S & T Telephone Co-op. Assoc., Inc. v. KCC 

48 Kan. App. 2d 290, 291 P.3d 490 (Nov. 2, 2012) (Leben, J.) 


The Kansas Corporation Commission (KCC) ordered S&T Telephone Cooperative to provide information 

that would be used to determine future payments to the company from the Kansas Universal Service Fund, 

and the telephone company provided some of that information. When the KCC failed to take further action 

within 30 days, the telephone company moved for an order directing increased support from the service 

26

fund based on the information the company had provided. The telephone company sought to apply a 

deadline found in K.S.A. 66-117(c), a Kansas statute that comes into play when a common carrier or utility 

has applied for some change in rates or charges. But the KCC denied the motion because it said that the 

telephone company had made no application under K.S.A. 66-117. The Court of Appeals agreed with the 

KCC. The Court stated that an application is a request for some action or relief, not the mere filing of 

information in response to the order of a regulatory agency. No application was made here, and the 30-day 

limit found in K.S.A. 66-117(c) was not at issue. The telephone company's assertion that the KCC took 

final action here is solely dependent upon its claim that the KCC's failure to act constituted action because 

of the 30-day time limit in K.S.A. 66-117(c). Since that time limit has no application to this case, the KCC 

has not taken any appealable action. The Court dismissed for lack of jurisdiction. 

See also, Church of God in Christ, Inc. v. Board of Trustees of Emmanuel Church of 

God in Christ, 47 Kan. App. 2d 674, 280 P.3d 795 (June 8, 2012) (Bruns, J.) (Default 

Judgment); Friedman v. Kansas State Board of Healing Arts, ___ Kan. ___, 294 P.3d 

287 (Feb. 15, 2013) (per curiam) (Due Process); Miller v. Preisser, 295 Kan. 356, 284 

P.3d 290 (Aug. 31, 2012) (Luckert, J.) (Eminent Domain and Inverse Condemnation) 

KANSAS SEXUALLY VIOLENT PREDATOR ACT (KSVPA) 

In re Care and Treatment of Ontiberos 

295 Kan. 10, 287 P.3d 855 (Aug. 17, 2012) (Biles, J.) 


This appeal arises under the Kansas Sexually Violent Predator Act (KSVPA), K.S.A. 59-29a01 et seq. A 

civil jury declared Ontiberos a sexually violent predator and determined he should be committed for 

treatment until he is safe for release. The Court of Appeals vacated the commitment and remanded for a 

new trial after it found that Ontiberos received ineffective assistance of counsel and that the State's attorney 

committed misconduct during the trial. The Supreme Court held that due process guarantees a person 

facing civil commitment under the KSVPA a right to counsel at trial, and that person may challenge the 

effectiveness of his or her trial counsel on direct appeal or under K.S.A. 60-1501. The Court determined the 

KSVPA is not unconstitutional. The Court also held that Ontiberos' trial counsel was ineffective and that 

the State committed misconduct, which required that the case be remanded for a new trial. 

K.S.A. 60-1507 

Fischer v. State 

___ Kan. ___, 295 P.3d 560 (Mar. 1, 2013) (Biles, J.) 


Fischer was convicted of attempted first-degree murder, aggravated kidnapping, attempted rape, and 

criminal possession of a firearm. His convictions were upheld on direct appeal. Fischer then filed a pro se 

K.S.A. 60-1507 motion arguing ineffective assistance of counsel. At the evidentiary hearing on his motion, 

Fischer was only allowed to be present by telephone. During the hearing, Fischer complained he could not 

hear witness testimony and counsel argument, and objected to not being physically present. The district 

court denied Fischer's motion and he appealed. A split panel of the Court of Appeals reversed holding that 

Fischer's physical presence was required and that the district court had no discretion to order otherwise. 

Our Supreme Court reversed the Court of Appeals finding that the district court had not adequately 

supported its decision to have Fischer participate by telephone and because it did not properly address 

whether Fischer's complaints about not being able to hear portions of the proceedings adversely impacted in 

a material way the presentation of his arguments. 

27

The case was remanded to the district court for further proceedings to include development of a more 

comprehensive record as to whether this particular inmate should be transported to the courthouse for his 

evidentiary hearing or whether alternative means of his production, such as telephone conference originally 

ordered, will be sufficient. 

See also, Edgar v. State, 294 Kan. 828, 283 P.3d 152 (July 27, 2012) (Luckert J.) 

(Johnson, J., dissenting) (Ineffective Assistance of Counsel); Shumway v. State, 48 Kan. 

App. 2d 290, 293 P.3d 772 (Jan. 18, 2013) (Green, J.) (Ineffective Assistance of 

Counsel); Wright v. State, ___ Kan. App. 2d ___, 294 P.3d 1201 (Feb. 15, 2013) 

(Malone, C.J.) (Alternative Means) 

LABOR AND EMPLOYMENT 

Hague v. Hallmark Cards, Inc. et al. 

48 Kan. App. 2d 118, 284 P.3d 369 (Aug. 24, 2012) (Leben, J.) 


The Federal Arbitration Act applies when a case involves a written agreement and interstate commerce. 

The Act establishes a strong federal policy in favor of arbitration. Under the Act, once it has been 

determined that there is a valid agreement between the parties to arbitrate disputes, arbitration should be 

ordered unless the arbitration clause is not susceptible of an interpretation that covers the dispute at issue. 

Doubts should be resolved in favor of arbitration. Courts held that under the facts of this case, an arbitration 

agreement that applied to claims "under the law" and "arising out of the employee's employment" requires 

arbitration of the employee's claims for employer-provided disability benefits, unpaid wages, and other 

damages all arising out of the employment. Court stated that Hague's claims are subject to arbitration under 

her employment agreement, which includes the Hallmark dispute-resolution program. Court reversed the 

district court's order and remanded the case with directions to grant Hallmark's motion to stay further 

proceedings in the lawsuit and to compel arbitration. 

See also, USD No. 446 v. Sandoval, 295 Kan. 278, 286 P.3d 542 (Aug. 31, 2012) (Rosen, 

J.) (Luckert, J., concurring and dissenting) (Nuss, C.J., dissenting) (Contracts) 

MANDAMUS 

Ramcharan-Maharajh v. Gilliland 

48 Kan. App. 2d 137, 286 P.3d 216 (Sept. 7, 2012) (Leben. J.) 

Petition for Review filed Oct. 5, 2012 


Osage City authorized contracts to participate in federal rails-to-trails project. Four years later, Ramcharan- 

Maharajh submitted petitions for a referendum vote on that project. The county clerk declined to review the 

signatures because there was no legal basis for a petition to compel an election. Ramcharan-Maharajh 

sought mandamus in district court to compel the clerk to accept, verify, and certify the names on the 

petition. The district court dismissed the petition and Ramcharan-Maharajh appealed. The Court of Appeals 

held that referendums are distinguished from initiative process and no statute authorizes the referendum 

sought in this case. No evidence of any contract between Ramcharan-Maharajh and the city to put a 

referendum on the ballot, and such an agreement would contravene public policy because a Kansas city 

cannot agree to hold a referendum not provided for by statute. The United States Constitution does not 

require states to provide for initiative or referendum rights, and the First Amendment does not require that 

government take action in response to a citizen's petition. 

28

MEDICAL EVIDENCE 

Adamson v. Bicknell 

295 Kan. 879, 287 P.3d 274 (Oct. 26, 2012) (Biles, J.) (Luckert, Beier, Johnson, 

JJ., concurring in part, dissenting in part) 


Adamson sued Bicknell for negligence after he rear-ended him. The trial court denied Adamson's motion 

to amend for a claim of punitive damages. Regarding Bicknell's motion in limine, the trial court ultimately 

permitted introduction of expenses paid by Medicaid, PIP benefits, and Adamson's out-of-pocket expenses. 

A jury found that Adamson sustained damages of $11,100 in medical expenses, $7,500 in economic loss, 

and $5,000 in present noneconomic loss, for a total award of $23,600. Court of Appeals reversed the trial 

court's denial of Adamson's motion for punitive damages. Court of Appeals also stated there was sufficient 

evidence to support a finding that the medical evidence of adjustment was related to Medicaid 

reimbursement and the trial court did not err in excluding evidence of the Medicaid write-off. Court found 

the Court of Appeals failed to address whether Bicknell knew the risk and drove with knowledge of a 

dangerous condition. Court stated that the district court must consider all the evidence cited by Adamson 

in her motions seeking punitive damages, not just Bicknell's testimony. But the evidence of Bicknell's 

knowledge of his impairment presents a closer question than the Court of Appeals acknowledged, and it 

should not have made the findings reserved to the district court. Court remanded to the district court for a 

rehearing on Adamson's motion seeking punitive damages because factual findings must still be made. The 

issue of medical expenses was not properly preserved for appeal. 

CONCURRING IN PART/DISSENTING IN PART: Justices Luckert, Beier & Johnson dissented from the 

majority's decision to reverse the district court's denial of Adamson's motion to amend to add a claim for 

punitive damages. Justice Luckert concurred in the majority's conclusion that Adamson did not preserve 

the medical expense issue for appeal. 

MEDICAID REIMBURSEMENT 

See also, Village Villa v. Kansas Health Policy Authority, 296 Kan. 315, 291 P.3d 1056 

(Jan. 11, 2013) (Biles, J.) (Due Process) 

MEDICAL LICENSE REVOCATION 

See also, Friedman v. Kansas State Board of Healing Arts, ___ Kan. ___, 294 P.3d 287 

(Feb. 15, 2013) (per curiam) (Due Process) 

MEDICAL MALPRACTICE 

Martin v. Naik, 

___ Kan. ___, ___ P.3d ___, 2013 WL 1850661 (May 3, 2013) (Per curiam) 

(Johnson, J. concurring, joined by Nuss, C.J.) (Luckert, J. concurring in part and 

dissenting in part, joined by Rosen and Biles, JJ.) 


This appeal raised issues regarding when the statute of limitations begins to run in a wrongful death and 

survival action brought against a physician and hospital. The Kansas Supreme Court held that a cause of 

action for wrongful death accrues on the date of death unless information regarding the fact of death or the 

wrongful act that causes the death was concealed, altered, falsified, inaccurate, or misrepresented. And in 

construing K.S.A. 60-513(c)—which controls when the statute of limitations period begins to run in a 

29

medical malpractice action—our Supreme Court held that the legislature stated an objective standard when 

it provided that a cause of action accrues at the time of the occurrence of the act giving rise to the cause of 

action "unless the fact of injury is not reasonably ascertainable." Consequently, the fact a particular patient 

is incapacitated, which would be a subjective factor, does not affect whether the fact of injury was 

reasonably ascertainable. 

See also, Foster v. Klaumann, 295 Kan. 295, 294 P.3d 223 (Jan. 11, 2013) (Biles, J.) 

(Jerome P. Hellmer, District Judge, assigned vice Justice Moritz) (Juries and Instructions) 

MINERAL, OIL, AND GAS 

Northern Natural Gas Co. v. Oneok Field Services 

___ Kan. ___, 296 P.3d 1106, 2013 WL 1010609 (Mar. 15, 2013) (Moritz, J.) 


Natural-gas company (company) sued four gas buyers, alleging that they wrongfully converted gas by 

purchasing gas from two well operators that were producing and selling gas from company's underground 

injected-gas storage field. The buyers filed third-party indemnification claims against the operators, which 

in turn filed numerous claims against the company and the buyers. The trial court granted summary 

judgment to the operators on the third-party indemnification claims. The company appealed and the case 

was transferred to the Supreme Court. The Supreme Court first held that the company had standing to 

appeal as a sufficiently aggrieved party. Next, the Court held that the company lost title to any injected gas 

that migrated horizontally beyond the property adjoining the certificated boundaries of its storage field, and 

under the rule of capture, the operators, which first produced the migrated gas, took title to it, regardless of 

whether the company intended to abandon it. In reaching this decision, the Court rejected the company's 

expansive interpretation of K.S.A. 55-1210(c). Instead, the Court agreed with the trial court that section (c) 

preserved the rule of capture as to injected gas which migrates horizontally within a stratum and beyond 

adjoining property or vertically to another stratum in which the injector has not obtained storage rights. 

Then, the court held that the trial court did not abuse its discretion in denying the company's request for 

additional discovery. Next, the court held that the trial court did not abuse its discretion in denying the 

company's motion for relief from the summary judgment ruling. And finally, the court held that the 

summary judgment ruling was not a taking of the company's property without just compensation in 

violation of the Takings Clause. 

RAMA Operating Co. v. Barker 

47 Kan. App. 2d 1020, 286 P.3d 1138 (July 27, 2012) (Greene, C.J.) (Atcheson, 

J., concurring) 


The court concluded that in the absence of a lawful claim by a third party to the interest conveyed to the 

assignee of an oil and gas lease, the assignor had no duty to defend and did not breach his warranty of title. 

The court found that lack of production after the primary term of the lease, together with (i) no factual 

assertions to support its being merely temporary, (ii) no allegations that the well was a shut-in well with 

royalty payments being made, and (iii) at least one undisputed release of record by the prior 

operator/lessee, rendered a conclusion that the prior leases had expired. The court found that a longdistance 

phone call with the individual executing the second release indicating that it was a "mistake" has 

little if any evidentiary value on the question of continuing lease validity. The court held that because of the 

oil and gas lease operator's failure to successfully controvert the production history on the gas production 

unit and the resulting 23 months of nonproduction, its failure to factually support a temporary cessation of 

production, its failure to support constructive production by reason of shut-in royalty payments on a well 

capable of producing in paying quantities, and the fact of at least one undisputed release of record by the 

operator/lessee of the prior lease on this acreage, there was no breach of the assignor's covenant of warranty 

30

of title and the assignor of the oil and gas lease was entitled to judgment as a matter of law at summary 

judgment. The concurrence commented on the question of whether a denial of summary judgment is 

appealable following a trial on the merits to a judge or jury. 

See also, City of Neodesha v. BP Corporation North America Inc, et al., 295 Kan. 298, 

287 P.3d 214 (Aug. 31, 2012) (Biles, J.) (Class Action) 

MOOTNESS 

See also, In the Interest of A.E.S., ___ Kan. App. 2d ___, 298 P.3d 386, 2013 WL 

1364746, No. 108,108 (Apr. 5, 2013) (Hebert, J.) (Child in Need of Care) 

MORTGAGES 

Bank of America, N.A. v. Inda 

___ Kan. App. 2d ___, ___ P.3d ___ , 2013 WL 856468 (Mar. 8, 2013) (Green, 

J.) 


Bank of America brought an action to foreclose on Inda's mortgage after he defaulted on his loan. The trial 

court granted Bank of America's motion for summary judgment, finding that Bank of America was the 

holder of the note and of the mortgage and that Inda had defaulted on the loan. The issues on appeal are 

whether Bank of America is the undisputable holder of the note, and whether Bank of America had the 

authority to enforce the mortgage. Inda argues that Bank of America is not the holder of the note and that it 

is simply a servicer of the note. Bank of America contends that it is the holder of the note and presented the 

note to the court to show that it was in its possession. The Court of Appeals held that Bank of America was 

the holder of the note because it presented the original note to the trial court which showed the previous 

endorsements, with the last endorsement made "in blank." The Court further held that the record 

conclusively establishes that at all times Bank of America was the holder of the Note executed by Inda, that 

Bank of America was the successor to the Mortgage, and that Inda was in default on the Note. Thus, the 

Court held that Bank of America was entitled to summary judgment on its mortgage foreclosure action as a 

matter of law. 

MetLife Home Loans v. Hansen 

48 Kan. App. 2d 213, 286 P.3d 1150 (Sept. 28, 2012) (Arnold-Burger, J.) 


Homeowners appealed from a summary judgment for the lender in a mortgage foreclosure action, 

challenging lender's standing to foreclose on mortgage. The Court of Appeals held the promissory note and 

the mortgage were not irreparably split when the Mortgage Electronic Registration Systems, Inc. (MERS) 

held the recorded mortgage solely as the nominee or agent for the lender and its successors and assigns 

while the note was validly assigned between various lenders. The Court of Appeals found the plain 

language of both the note and the mortgage indicated that the parties' intended to keep them together, 

intertwined, as part of one transaction. Because the valid transfer of the note also transferred the mortgage, 

a formal assignment of the mortgage was unnecessary to secure the note holder's right to foreclose the 

mortgage. Thus, any defect in the assignment of the mortgage would not deprive the lender—as the valid 

holder of the note that was indisputably in default—of standing to foreclose. 

31

U.S. Bank v. Howie 

47 Kan. App. 2d 690, 280 P.3d 225 (June 8, 2012) (Malone, J.) 


James Howie executed a promissory note to U.S. Bank, and later that day James and his wife, Georgia 

Howie, executed a mortgage granting a security interest in certain real property to secure payment of the 

note. Under the terms of the mortgage, U.S. Bank was named as "Lender," and Mortgage Electronic 

Registration Systems, Inc. (MERS) was named as the mortgagee "acting solely as a nominee for Lender 

and Lender's successors and assigns." More than one year after James' death, Georgia defaulted on the note 

and U.S. Bank filed a petition to foreclose the mortgage. The district court filed an order granting summary 

judgment in favor of U.S. Bank, and Georgia appealed, claiming that U.S. Bank was barred from 

foreclosing on the mortgage for two reasons. In part, Georgia claimed that the note and underlying debt 

were irreparably severed from the mortgage because the note and mortgage were held by separate entities. 

The Court of Appeals found that although a mortgage is generally unenforceable when it is not held by the 

same entity that holds the promissory note, an exception exists where there is an agency relationship 

between the holder of the mortgage and the holder of the promissory note. The Court of Appeals concluded 

that the plain language of the mortgage provided sufficient and undisputed evidence that an agency 

relationship existed between MERS and U.S. Bank because the mortgage expressly authorized MERS to 

act on behalf of U.S. Bank in all situations related to enforcement of the mortgage. Although the mortgage 

used the term "nominee" rather than "agent," the Court of Appeals found that this terminology did not alter 

the character of the relationship between MERS and U.S. Bank. Thus, the Court of Appeals held that the 

mortgage and the note were never severed and U.S. Bank, as present holder of both the note and the 

mortgage, was entitled to foreclose on the mortgage. Georgia also argued that the mortgage debt was 

extinguished because U.S. Bank had failed to timely demand payment of the note after James' death as 

prescribed by K.S.A. 59-2239(1), which establishes time deadlines for making claims against a decedent's 

estate. The Court of Appeals found that under the plain language of K.S.A. 59-2239(1), liens existing at the 

date of the decedent's death are expressly exempted from the filing obligations set forth in the statute. 

Accordingly, because U.S. Bank's lien against the property was secured prior to James' death, the court held 

that K.S.A. 59-2239(1) did not bar U.S. Bank from foreclosing its mortgage against the property. 

See also, U.S. Bank National Association, as Trustee of the Security National 

Mortgage Loan Trust 2006-2 v. Steven R. McConnell, et al., ___ Kan App. 2d. ___, ___ 

P.3d ___ (May 3, 2013) (McAnany, J.) (Civil Procedure) 

MOTION IN LIMINE 

Schlaikjer v. Kaplan 

296 Kan. 456, 293 P.3d 155 (Jan. 25, 2013) (Per Curiam) 


In this medical malpractice case against Dr. James Kaplan, plaintiff Donna Schlaikjer filed K.S.A. 60- 

226(b)(6)(B) expert witness designation, identifying Joel Cooper, M.D., as her only expert witness and her 

treating physician. During Cooper's two depositions, he had difficulty providing exact calculations of how 

he spent his professional time, as he worked primarily in a teaching hospital and so much of his researching 

and teaching time overlapped with direct patient care. Kaplan filed a motion in limine seeking to exclude 

any standard of care opinions from Cooper, arguing that Schlaikjer had not shown Cooper met the statutory 

requirement of K.S.A. 60-3412 that he spent 50% of his professional time in actual clinical practice. The 

district court granted the motion in limine and then granted summary judgment in favor of Kaplan. The 

Court of Appeals affirmed, but the Supreme Court reversed, finding that the district court erred in 

concluding that Cooper failed to meet the 50% requirement. The Court held that "actual clinical practice" 

means "patient care," which includes advising on or addressing patient care and is not limited to face-toface 

patient interaction. Therefore, almost everything in Cooper's professional schedule had either direct or 

32

indirect influence on patient care and the district court's factual finding that Cooper failed to meet the 50% 

requirement was not supported by substantial competent evidence. Because the summary judgment ruling 

stemmed from this finding, the Supreme Court reversed the summary judgment as well. In addition, the 

Court stated that the district court correctly limited expert standard of care treatment based on physician 

treatment preferences, stating that it could not be introduced by either party on direct examination. 

MULTIPLE APPEALS 

See also, Snider v. American Family Mut. Ins. Co. (Snider II), ___ Kan. ___, ___ P.3d 

___, 2013 WL 1694786 (Apr. 19, 2013) (Luckert, J.) (Moritz and Johnson, JJ. dissenting) 

(Attorney Fees) 

MUNICIPAL CORPORATIONS 

See also, State ex rel. Hecht v. City of Topeka, ___ Kan. ___, 293 P.3d 713 (Feb. 1, 

2013) (Per curiam) (Daniel A. Duncan, District Judge, assigned vice Justice Mortiz) 

(Contracts) 

NEGLIGENCE 

See also, Adamson v. Bicknell, 295 Kan. 879, 287 P.3d 274 (Oct. 26, 2012) (Biles, J.) 

(Luckert, Beier, Johnson, JJ., concurring in part, dissenting in part) (Medical Evidence) 

NEGLIGENT MISREPRESENTATION 

See also, Kincaid v. Dess, ___ Kan. App. 2d ___, 298 P.3d 358 (Mar. 8, 2013) (Green, J.) 

(Contracts) 

OIL AND GAS 

See also, In the Matter of the Equalization Appeal of Wedge Log-Tech, L.L.C./Pioneer 

Wireline Services for the Year 2008 in Ellis County, Kansas, and In the Matter of the 


Ad Valorem Taxation in Ellis County, Kansas, ___ Kan. App. 2d ___, ___ P.3d ___, 

2013 WL 1497338 (Apr. 12, 2013) (Malone, C.J.) (Ad Valorem Taxation) 

PARTNERSHIP LAW 

Giles v. Giles Land Company, L.P., et. al. 

47 Kan. App. 2d 744, 279 P.3d 139 (June 15, 2012) (Green, J.) 

Petition for Review filed July 12, 2012 


Kelly Giles is a general partner in a family owned and operated limited farming partnership, Giles Land 

Company, L.P. (partnership). Kelly filed suit against the partnership and his partners, arguing that he had 

not been provided access to partnership books and records. The remaining members of the partnership then 

33

filed a counterclaim requesting that Kelly be dissociated from the partnership. The district court held that 

Kelly was not denied access to the partnership books and records and that Kelly should be dissociated from 

the partnership under K.S.A. 56a-601(e)(3) or, in the alternative, K.S.A. 56a-601(e)(1) because, due to 

Kelly's behavior, it was not practicable to carry on the business of the partnership so long as Kelly was a 

partner. On appeal, Kelly challenged the district court's ruling and argued that there was insufficient 

evidence to support dissociation. Under the Kansas Uniform Partnership Act, dissociation of a partner in a 

family partnership is warranted when a partner harbors animosity toward his or her partners; the partners 

have mutual distrust for each other; the partnership has reached an impasse regarding partnership business; 

and the partner has implicitly and expressly used threatening language toward the other partners. In this 

case of first impression, the Court of Appeals explained that in order to dissociate Kelly under K.S.A. 56a- 

601(e)(3), the record must demonstrate that (1) Kelly engaged in conduct relating to the partnership 

business and (2) such conduct makes it not reasonably practicable to carry on the business in partnership 

with Kelly. And in order to dissociate Kelly under K.S.A. 56a-601(e)(1), the record must demonstrate (1) 

that Kelly engaged in wrongful conduct and (2) that the wrongful conduct adversely and materially affected 

the partnership business. The Court of Appeals found that substantial competent evidence supported the 

district court's finding that Kelly did not trust the general partners, the general partners as well as all of the 

other partners did not trust Kelly, and the relationship between Kelly and the other family members was 

irreparably broken due to Kelly's behavior. Thus, in light of the animosity that Kelly harbored toward his 

partners and the mutual distrust between them, the appropriate remedy under the circumstances was the 

dissociation of Kelly under K.S.A. 56a-601(e)(3). The Court of Appeals further found that there was 

enough evidence in the record to support Kelly's dissociation under K.S.A. 56a-601(e)(1) because Kelly 

made threats or berated his parents (wrongful conduct), and his conduct materially or adversely affected the 

partnership (business was at a standstill). The Court of Appeals explained that even though there was no 

evidence that Kelly had been dishonest, and even though the partnership had continued to be successful, 

this did not mean that the other partners should be forced to remain in partnership with an uncooperative 

and distrustful partner. 

POST-CONVICTION DNA TESTING 

Haddock v. State 


Case No 101,508 

Haddock was convicted of the first-degree murder of his wife Barbara after her body was found crushed 

under a wood pile. Postconviction DNA testing produced some results favorable to Haddock, some results 

that confirmed evidence at trial, and some results that were inconclusive because the small amount and the 

degradation of the DNA prevented DNA matching. Weighing the mixed results of the evidence, the district 

court concluded there was not a reasonable probability that the new evidence would have changed the 

outcome of the trial and denied Haddock's motions for new trial. 

Court agreed with the district court and held that while the evidence that the hair and eyeglasses of the 

victim had the DNA of two unknown people—one male and one female—could be used to suggest others 

may have also been present when Barbara was murdered, that evidence does not dispute the overwhelming 

evidence of Haddock's guilt to which the State and district court point. Court held that in light of the 

evidence adduced at trial and through Haddock's second motion for DNA testing, it concluded that a 

reasonable person could agree with the district court's ruling that it is not reasonably probable the 

postconviction DNA testing results would change the jury's verdict that Haddock premeditated the murder 

of Barbara. 

34

POSTMARITAL AGREEMENTS 

In re Marriage of Traster 

48 Kan. App. 2d 356, 291 P.3d 494 (Dec. 7, 2012) (Standridge, J.) 

Petition for Review filed Jan. 7, 2013 


During their marriage, Debra and David Traster executed a postmarital agreement which set forth the 

respective legal rights and obligations of each spouse in the event of a divorce. David later filed for divorce 

and, contrary to the terms of the postmarital agreement, requested that the district court equitably divide the 

marital property. Debra moved for summary judgment, asking the court to find that the postmarital 

agreement was valid, enforceable, and controlled the disposition of the parties' real and personal property. 

The district court construed the postmarital agreement as a separation agreement, and, as required by 

K.S.A. 60-1610(b)(3), reviewed it to determine whether it was valid, just, and equitable. The court 

ultimately held that the postmarital agreement (1) was invalid because it ran counter to public policy by 

encouraging divorce and (2) was unjust and inequitable in the distribution of property because Debra 

received virtually all of the personal property acquired during the marriage. The Court of Appeals 

concluded that the district court erred in finding the postmarital agreement ran counter to public policy and 

in construing the postmarital agreement as a separation agreement under K.S.A. 60-1610(b)(3) for purposes 

of determining its enforceability. In the absence of a statute governing the law related to postmarital 

agreements between spouses who plan to continue their marriage, the court held that the appropriate 

standard for assessing the enforceability of a postmarital agreement is review of the agreement by the court 

to determine whether (1) each party had an opportunity to obtain separate legal counsel of each party's own 

choosing; (2) there was fraud or coercion in obtaining the agreement; (3) all assets were fully disclosed by 

both parties before the agreement was executed; (4) each spouse knowingly and explicitly agreed in writing 

to waive the right to a judicial equitable division of assets and all marital rights in the event of a divorce; 

(5) the terms of the agreement were fair and reasonable at the time of execution; and (6) the terms of the 

agreement are not unconscionable at the time of dissolution. Applying this standard to the postmarital 

agreement between Debra and David, the court found it enforceable and, therefore, reversed the district 

court's decision and remanded the case with directions to enforce the postmarital agreement as written and 

agreed to by the parties. 

PRESCRIPTIVE EASEMENT 

Joseph R. Koch, Trustee of the Joseph R. Koch Revocable Trust dated March 12, 1993 

v. E. Lynn Packard and Jayne E. Packard, Cotrustees of the E. Lynn Packard 

Revocable Trust dated July 10, 2003, and Jayne E. Packard and E. Lynn Packard, 

Cotrustees of the Jayne E. Packard Revocable Trust dated July 10, 2003 

48 Kan. App. 2d 281, 294 P.3d 338 (Nov. 2, 2012) (Hill, J.) 

Petition for Review filed Nov. 30, 2012 


The Barber County District Court held that Joseph R. Koch acquired a prescriptive easement over a 

roadway owned by E. Lynn Packard and Jayne E. Packard. In reaching this conclusion, the district court 

found, in part, that Koch had exclusive use of the roadway. On appeal, the Court of Appeals reversed the 

decision of the district court, finding Koch failed to demonstrate a prescriptive easement. Exclusive use of 

the property is required in order to prove a prescriptive easement, and the evidence in this case showed 

Koch's use of the roadway was not exclusive. 

35

PROBATE 

See also, U.S. Bank v. Howie, 47 Kan. App. 2d 690, 280 P.3d 225 (June 8, 2012) 

(Malone, J.) (Mortgages) 

PUNITIVE DAMAGES 

See also, Adamson v. Bicknell, 295 Kan. 879, 287 P.3d 274 (Oct. 26, 2012) (Biles, J.) 

(Luckert, Beier, Johnson, JJ., concurring in part, dissenting in part) (Medical Evidence) 

RATE CASE 

See also, The S & T Telephone Co-op. Assoc., Inc. v. KCC, 48 Kan. App. 2d 290, 291 

P.3d 490 (Nov. 2, 2012) (Leben, J.) (Jurisdiction) 

REAL PROPERTY 

Bank of Blue Valley v. Duggan Homes, Inc. et. al 

___ Kan App. 2d. ___, ___ P.3d ___, 2013 WL 1786013 (Apr. 26, 2013) 

(Green, J.) 


Over the course of several years, developer granted multiple mortgages to Bank in part consideration for 

loans to fund its real estate development projects in Johnson County. Developer later defaulted on loans 

and bank sued to collect on notes and sought to foreclose on the mortgages. After suit was filed, Bank and 

developer entered into a settlement agreement. Under the agreement, developer agreed to convey several 

properties to Bank in full satisfaction of the indebtedness. Bank took the properties subject to the judgment 

liens of several subcontractors of developer. Later, Bank filed amended petition naming subcontractors as 

defendants. The amended petition sought to foreclose the mortgages that were included in the Bank's and 

developers' settlement agreement. Bank moved for summary judgment, and subcontractors filed a crossmotion 

for summary judgment. Subcontractors maintained that Bank was not entitled to foreclose on its 

mortgages. The district court held that although Bank "identifies the cause of action as a foreclosure," the 

Bank "simply desires to quiet title to the property." As a result, the district court granted summary 

judgment in favor of Bank and quieted title to the real property in Bank. On appeal, subcontractors contend 

that the trial court erred in granting summary judgment in favor of Bank based on a quiet title theory that 

was never requested nor pleaded by Bank. The Court of Appeals agreed, and therefore reversed and 

remanded. The Court of Appeals reasoned that because subcontractors objected to the quiet title theory and 

because they never consented to the use of this theory, the district court erred in granting Bank's motion for 

summary judgment. 

Hansford v. Silver Lake Heights, LLC 

294 Kan. 707, 280 P.3d 756 (July 13, 2012) (Rosen, J.) 


An executor of a decedent's estate filed a partition action to divide property held as tenants in common with 

Hansford and others. On the court's order, the property was sold at auction to a real estate developer. 

Because of a dispute about the boundaries of the property sold, Hansford brought a quiet title action. The 

court held that Hansford, as a tenant in common of the property, could not bring a collateral action 

challenging the partition action. The court ruled that Hansford was obligated to bring the boundary dispute 

in the partition action and that the facts did not support a claim for estoppel. 

36

Reicherter et al. v. McCauley 



The Court of Appeals held that a joint tenant can self-convey and thus destroy a joint tenancy in this case 

where there are just two joint tenants. The court found that under Kansas law, any joint tenant may 

unilaterally sever his or her joint tenancy interest in real property and create a tenancy in common by 

conveying his or her interest to a third person. Next, the court stated that when the intent to create a joint 

tenancy is clearly manifested, a joint tenancy may be created by a transfer to persons as joint tenants from 

an owner or a joint owner to himself or herself and one or more persons as joint tenants. Last, the court 

agreed with persuasive authority from other jurisdictions that unilateral self-conveyance severs a joint 

tenancy and have dispensed with the old requirements of deeding property to a straw man. The court held 

that upon an effective delivery during the grantor's life, a quitclaim deed by a joint tenant to himself or 

herself as a tenant in common effectively severs the joint tenancy and creates a tenancy in common. 

See also, First National Bank of Omaha v. Centennial Park LLC, et al, (Mar. 22, 2013) 

(Green, J.) (Debtor-Creditor); Prime Lending II, LLC v. Trolley's Real Estate Holdings, 

LLC, et. al, ___ Kan App. 2d. ___, ___ P.3d ___, 2013 WL 1786022 (Apr. 26, 2013) 

(Green, J.) (Civil Procedure); Stechschulte v. Jennings, __ Kan. __, __ P.3d __ (Apr. 12, 

2013) (Beier, J.) (Donald R. Noland, District Judge, assigned vice Justice Moritz) 

(Kansas Consumer Protection Act); Turner v. Steele, 47 Kan. App. 2d 976, 282 P.3d 632 

(July 20, 2012) (Marquardt, J.) (Default Judgment); U.S. Bank National Association, as 

Trustee of the Security National Mortgage Loan Trust 2006-2 v. Steven R. McConnell, 

et al., ___ Kan App. 2d. ___, ___ P.3d ___ (May 3, 2013) (McAnany, J.) (Civil 

Procedure) 

RESIDENTIAL CONSTRUCTION CONTRACTS 

See also, Coker v. Siler, __ P.3d __ 2013 WL 1850756 (May 3, 2013) (Standridge, J.) 

(Economic Loss Doctrine) 

RES JUDICATA 



Judgment) 

RIGHT TO APPELLATE COUNSEL 

Markovich v. Green, et al. 

___ Kan. App. 2d ___, 297 P.3d 1176 (Feb. 8, 2013) (Buser, J.) 

Petition for review filed Mar. 8, 2013 


District court denied inmate's K.S.A. 60-1501 petition and refused to appoint appellate counsel. This court 

held that under K.S.A. 22-4506(c), an indigent inmate has a statutory right to the appointment of appellate 

counsel. The case was remanded for appointment of appellate counsel. 

37

RULE AGAINST PERPETUITIES 

Rucker v. Delay 

295 Kan. 826, 289 P.3d 1166 (Oct. 19, 2012) (Biles, J.) 


In 1924 husband and wife executed a general warranty deed transferring real property. Under the terms of 

the warranty deed, husband and wife (grantors) kept for themselves and their heirs what was described as a 

portion of the landowners' one-eighth interest in the oil, gas, or other minerals that might later be 

developed. In 2008, the current property owners filed a quiet title action against grantors and their heirs 

arguing that the reservation in the deed was a royalty interest that violated the rule against perpetuities. In 

part, the grantors and their heirs maintained that the rule against perpetuities did not apply. The district 

court held that the deed created a perpetual, nonparticipating, royalty interest that was subject to 

termination under Kansas case law. Further, it held that the royalty interest was void because it violated the 

rule against perpetuities. Like the district court, the Court of Appeals held that the deed created a royalty 

interest and it applied the rule against perpetuities to void the interest. The Supreme Court affirmed in part 

and reversed in part, holding that the royalty interest was not void under the rule against perpetuities. The 

Supreme Court found that the royalty interest in this case was a reversion because the grantors retained a 

portion of it when they executed the deed in question. The Supreme Court then reasoned that the royalty 

interest did not violate the rule against perpetuities based on its precedent that reversionary interests are not 

subject to the rule against perpetuities. 

RULE OF CAPTURE ON MIGRATING GAS 

See also, Northern Natural Gas Co. v. Oneok Field Services, ___ Kan. ___, 296 P.3d 

1106, 2013 WL 1010609 (Mar. 15, 2013) (Moritz, J.) (Mineral, Oil, and Gas) 

SAME SEX COUPLES 

See also, Frazier v. Goudschaal, 296 Kan. 336, 295 P.3d 542 (2013) (Feb. 22, 2013) 

(Johnson, J.) (Coparenting Agreement) 

SETTLEMENT AGREEMENT 

See also, Coulter v. Anadarko Petroleum Corp., ___ Kan. ___, 292 P.3d 289 (Jan. 11, 

2013) (Johnson, J.) (Adequacy of Counsel) 

SEXUALLY VIOLENT PREDATOR 

In re Care & Treatment of Lowry 

__ Kan. App. 2d __, __ P.3d __, 2013 WL 1490946 (June 8, 2012; ordered 

published Mar. 25, 2013), 

Petition for Review denied Mar. 25, 2013 (Standridge, J.) 


A jury determined Lenny D. Lowry was a sexually violent predator under the Kansas Sexually Violent 

Predator Act (KSVPA), K.S.A. 59-29a01 et seq. Lowry appealed from the jury's verdict, arguing that the 

district court lacked jurisdiction over him, that he was denied his statutory right to effective assistance 

counsel, and that the State's attorney committed reversible misconduct during closing arguments. On 

38

appeal, the Court of Appeals held: (1) The State's failure to comply with K.S.A. 59-29a04(a) by attaching a 

document to the petition alleging that Lowry was a sexually violent predator and stating sufficient facts to 

support the allegation did not deprive the district court of jurisdiction because K.S.A. 59-29a04(b) provides 

that the statute's provisions "are not jurisdictional, and failure to comply with such provisions in no way 

prevents the attorney general from proceeding." Regardless, the court held that the petition clearly set forth 

facts sufficient to support the allegation that Lowry may be a sexually violent predator. (2) Lowry's 

statutory right to counsel was not violated because he failed to show that counsel's representation fell below 

an objective standard of reasonableness under the circumstances. Specifically, the court held that counsel 

was not ineffective in stipulating to the foundation of certain documents contained in Lowry's file; in 

failing to confront the State's doctor with certain reports on cross-examination; or in failing to seek the 

assistance of an expert based on a mistaken belief that funds for an expert were unavailable. Lowry also 

argued that counsel was ineffective for failing to argue that the elements of pedophilia contained in the 

DSM-IV were not established in his case, but the court held that there is no requirement under the Kansas 

Sexually Violent Predator Act that the State must establish that a person suffers from a mental abnormality 

recognized by the DSM-IV before that person can be found to be a sexually violent predator. (3) The twostep 

analysis used in criminal cases to judge alleged instances of prosecutorial misconduct claims is 

inapplicable in sexually violent predator proceedings. Instead, the central consideration for a court 

reviewing comments made by counsel during a sexually violent predator proceeding is whether the 

comments deprived the respondent of a fair trial. Here, the prosecutor's comments during closing argument 

were simply comments on the evidence and were also made in response to defense counsel's closing 

arguments. As such, they did not deprive Lowry of a fair trial. 

STANDARDS OF REVIEW 

STANDING 

See also, Edgar v. State, 294 Kan. 828, 283 P.3d 152 (July 27, 2012) (Luckert J.) 

(Johnson, J., dissenting) (Ineffective Assistance of Counsel) 

See also, Turner v. Steele, 47 Kan. App. 2d 976, 282 P.3d 632 (July 20, 2012) 

(Marquardt, J.) (Default Judgment) 

STATUTE OF LIMITATIONS 

Seaboard Corp. v. Marsh, Inc. 

295 Kan. 384, 284 P.3d 314 (Aug. 31, 2012) (Luckert, J.) 


Insurance client brought several tort, contract, and statutory claims against an insurance company for an 

alleged "bid-rigging" scheme. In an interlocutory appeal, the court applied the standard of review for 

summary judgment because the district court had relied on facts outside the pleadings. The court then 

upheld the district court's refusal to dismiss the action based upon the applicable statute of limitations. The 

court interpreted the Kansas savings statute, K.S.A. 60-518, to apply to actions originally filed outside of 

Kansas and held that the dismissal of the former class action suit in New Jersey met the requirements of 

K.S.A. 60-518. 

39

Law v. Law Company Building Associates 

295 Kan. 551, 289 P.3d 1066 (Sept. 28, 2012) (Luckert, J.) 


Margaret Russell Law filed claims for breach of contract, breach of the implied duty of good faith and fair 

dealing, reformation of contract, and declaratory judgment against The Law Company, Inc. and Law 

Company Building Associates. The claims arose from a financial agreement regarding a commercial 

building in Wichita. The Supreme Court held the following: (1) a cause of action for reformation of a 

contract based on an alleged mutual mistake accrues when the mistake is made, not when the mutual 

mistake is discovered; and (2) accrual does not depend on whether a contract is executed or executory and 

the rules do not vary simply because the contract relates to the title of real property. The Supreme Court 

then reversed the Court of Appeals' holding and affirmed the district court's order of summary judgment, 

which found that Margaret Law's reformation claim was barred by K.S.A. 60-511(1) as the mutual mistake 

under the contract occurred more than 5 years before the case was filed. 

See also, Martin v. Naik, ___ Kan. ___, ___ P.3d ___, 2013 WL 1850661 (May 3, 2013) 

(Per Curiam) (Medical Malpractice) 

STATUTE OF REPOSE 

See also, Hemphill v. Shore, 295 Kan. 1111, 289 P.3d 1173 (Dec. 7, 2012) (Beier, J.) 

(Constructive Fraud) 

STATUTORY INTERPRETATION 

See also, Schlaikjer v. Kaplan, 296 Kan. 456, 293 P.3d 155 (Jan. 25, 2013) (Per Curiam) 

(Motion in Limine) 

SUMMARY JUDGMENT 

TAXATION 

See also, Gold Mine Investments, Inc. d/b/a Gold Realty v. Mount Vernon Fire 

Insurance Co. and Med James, Inc., ___ Kan. App. 2d ___, ___ P.3d ___, 2013 WL 

1694796 (Apr. 15, 2013) (McAnany, J.) (Insurance); RAMA Operating Co. v. Barker, 47 

Kan. App. 2d 1020, 286 P.3d 1138 (July 27, 2012) (Greene, C.J.) (Atcheson, J., 

concurring) (Minerals, Oil, and Gas); Waste Connections of Kansas, Inc. v. Ritchie 

Corporation, ___ Kan. ___, 298 P.3d 250 (Mar. 22, 2013) (Beier, J.) (Contracts) 

In re Equalization Appeal of Johnson County Appraiser 

47 Kan. App. 2d 1074, 283 P.3d 823 (July 27, 2012) (Standridge, J.) 


Taxpayer appealed from decision of the Court of Tax Appeals (COTA) reinstating county's original value 

for ad valorem tax purposes for fast food restaurant for 2008 tax year. Because the taxpayer did not provide 

a complete income and expense statement for the property, under K.S.A. 79-1609, the burden of proof 

remained with the taxpayer at the hearing. The court found that the commercial valuation performed by the 

county was a mass appraisal of property, the testimony from the valuation specialist sufficiently addressed 

40

TORTS 

the issue of highest and best use and the report was not invalid for failure to explain 10% upward 

adjustment was added to the property's replacement cost. The court found sufficient evidence supported the 

COTA's decision to reinstate the county's original 2008 assessment of the property. 

In re National Catastrophe Restoration, Inc. 

48 Kan. App. 2d 189, 291 P.3d 89 (Sept. 21, 2012) (Greene, C.J.) 


NCRI, a retailer of goods and services to restore and repair property damaged by disasters, filed sales tax 

returns from May 2003 through December 2004 certifying it owed no taxes. The Kansas Department of 

Revenue initiated an audit, and NCRI admitted to numerous untaxed or undertaxed transactions for the 

period of January 1, 2002 through December 31, 2004. The parties agreed to a sampling method by which 3 

months of records would be used to determine the total tax liability. NCRI filed a motion for directed 

verdict with the Court of Tax Appeals after the KDOR submitted its assessment, which was denied. Despite 

NCRI's contention, there was no error because the KDOR's assessment was presumed valid and NCRI bore 

the burden to prove the assessment was error. Further, NCRI argued that it had rebutted the presumption of 

validity. The COTA made a negative finding on that issue, so NCRI bore the burden on appeal to show the 

COTA arbitrarily disregarded undisputed evidence or based its decision on bias, passion, or prejudice. 

NCRI did not meet this burden with respect to its challenge to the KDOR's sampling method. Additionally, 

K.S.A. 79-3610, which permits the KDOR to determine total tax liability by using the sampling method, 

was not unconstitutional. NCRI failed to present facts before the COTA to establish that any out-of-state 

transactions were actually taxed. As such, there was not a record sufficient for the Court of Appeals to 

begin to overcome the presumption that K.S.A. 79-3610 was constitutional. The COTA's later rejection of 

earlier agreed-to stipulations, however, was error because NCRI did not have the opportunity to search for 

evidence on the issues because it relied on the stipulations. This error implicated NCRI's due process rights 

and was arbitrary and capricious. So the Court of Appeals remanded the case for a hearing on the 

stipulations and a recalculation of the tax deficiency in accordance with the findings. 

See also, In the Matter of the Equalization Appeal of Wedge Log-Tech, L.L.C./Pioneer 

Wireline Services for the Year 2008 in Ellis County, Kansas, and In the Matter of the 


Ad Valorem Taxation in Ellis County, Kansas, ___ Kan. App. 2d ___, ___ P.3d ___, 

2013 WL 1497338 (Apr. 12, 2013) (Malone, C.J.) (Ad Valorem Taxation) 

Carr v. Vannoster 

48 Kan. App. 2d 19, 281 P.3d 1136 (Aug. 3, 2012) (McAnany, J.) 


In an appeal from summary judgment on a negligence action against a dog owner's putative landlord for 

injuries from a dog attack, the court held that the general rule of landlord liability stated in Borders v. 

Roseberry, 216 Kan. 486, 532 P.2d 1366 (1975), insulated the landlord because the exceptions stated in 

Borders did not apply under the facts of the case. Opinions from other jurisdictions expanding landlord 

liability were not consistent with Kansas law. In the alternative, the court also rejected the plaintiff's strict 

liability claim because, under the facts of the case, there was no evidence that the defendant possessed or 

harbored the dog. 

41

Eastman v. Coffeyville Resources Refining & Manufacturing, LLC 

295 Kan. 470, 284 P.3d 1049 (Sept. 7, 2012) (Moritz, J.) 


Trustees filed suit in federal district court for property damage from a crude oil spill. The federal court 

certified two questions to the Kansas Supreme Court. The court concluded that, like the common-law strict 

liability claim, K.S.A. 65-6203 does not require proof of negligence or intent to interfere with a property 

right. But, unlike the common-law claim, K.S.A. 65-6203 also does not require a showing that the actor 

was engaged in an abnormally dangerous activity. Because K.S.A. 65-6203 created a new substantive right, 

the statute of limitations period of K.S.A. 60-512(2), which governs rights created by statute, applied. 

Michaelis v. Farrell, 

___ Kan. App. 2d ___, 296 P.3d 439 (Mar. 8, 2013) (Green, J.) 


Michaelis suffered an electric shock when water surrounding a dock on the Farrells' property became 

electrified. Michaelis did not sue for recovery until 5 years later, after a doctor determined he had suffered 

a neurological injury as a result of the electric shock. The Farrells moved for a directed verdict under 

K.S.A. 2012 Supp. 60-250(b) (now known as a judgment as a matter of law) maintaining Michaelis 

suffered an actionable injury on the date of the electric shock or shortly thereafter and, therefore, his action 

was barred by the applicable 2-year statute of limitations. The district court denied the motion and 

submitted the issue to the jury, which found Michaelis did not reasonably ascertain he suffered a substantial 

injury until 5 years after the accident. The Court of Appeals held (1) the statute of limitations starts to run 

in a tort action when a negligent act causes injury if both the act and the resulting injury are reasonably 

ascertainable by the injured person; (2) but where the evidence regarding when Michaelis reasonably 

ascertained his injury and cause of the injury were in dispute, the district court properly submitted the 

question to the jury and properly denied the Farrells' motion for directed verdict; and (3) instructing the jury 

to determine when plaintiff reasonably ascertained he had suffered a substantial injury related to the electric 

shock without defining "substantial" could not have reasonably misled the jury and correctly conveyed the 

required objective standard. 

Miller v. Johnson 

295 Kan. 636, 289 P.3d 1098 (Oct. 5, 2012) (Biles, J.) (Beier, J., and Johnson, J, 

concurring in part and dissenting in part) 


Amy Miller sued her doctor, who mistakenly removed her left ovary during a laparoscopic surgery 

intended to take the right ovary, and a jury awarded her $759,679.74 in damages. The district court reduced 

that amount by $425,000 because of a state law limiting noneconomic damages in personal injury lawsuits 

and a posttrial ruling finding her evidence of future medical expenses insufficient. The Kansas Supreme 

Court held the statutory cap on noneconomic damages in K.S.A. 60-19a02 is constitutional. Court also 

found the district court abused its discretion by striking the jury's award for future medical expenses based 

on errors of fact and remanded the case to the district court with instructions to reinstate that award. Court 

denied remaining claims of trial error. The dissents would hold the statutory cap on noneconomic damages 

is unconstitutional. 

See also, Stechschulte v. Jennings, __ Kan. __, __ P.3d __ (Apr. 12, 2013) (Beier, J.) 

(Donald R. Noland, District Judge, assigned vice Justice Moritz) (Consumer Protection 

Act) 

42

TORTIOUS INTERFERENCE WITH CONTRACT AND PROSPECTIVE BUSINESS 

RELATIONSHIPS 

TRUSTS 

Cohen, et al., v. Battaglia 

__Kan. ___, 293 P.3d 752 (Feb. 8, 2013) (Nuss, C.J.) 


The Baron Automotive Group, Inc. (BAG) and others agreed to sell to Group 1 Automotive 100 percent of 

the membership interests in Baron Development Company (BDC). When Battaglia, who was president of 

BAG and had a security interest in BDC, learned of the sale agreements, he insisted on knowing the 

purchase price and other details. The trustees refused the request because Battaglia was not a "seller" under 

the sale agreements, the transactions with Group 1 were confidential, and disclosure of such information 

might jeopardize the agreements. 4 days before the sales transaction was set to close, Battaglia's attorney, 

Louis C. Accurso, filed a civil action for breach of fiduciary duty and self-dealing in the circuit court of 

Jackson County, Missouri, naming Cohen, the Cohen Trust, Cass, BAG, and BDC as defendants (the 

Missouri action). That same day, Accurso faxed to Group 1's general counsel a copy of the Missouri action 

along with the following letter: "Please find enclosed a file-stamped copy of a lawsuit filed today on behalf 

of Marion Battaglia. If you have any questions or comments, please do not hesitate to contact me." After 

receiving the letter and a copy of the Missouri action from Battaglia's attorney, Group 1 refused to close the 

transaction without indemnification and escrow. Their demands were met, with the trustees allegedly 

incurring substantial attorney fees as a result. After closing, the Cohen and Cass trustees filed a tortious 

interference lawsuit against Battaglia. The trial court ultimately granted Battaglia's motion to dismiss. The 

Court of Appeals panel rejected the rationales of the district court, but affirmed nevertheless the dismissal 

on a different ground, i.e., § 772 of the Restatement (Second) of Torts (1979). 

Supreme Court reversed because the Court of Appeals inappropriately resolved factual issues on a 

dispositive motion. Court held the Court of Appeals' reliance on § 772 of the Restatement of Torts and the 

truthfulness of the communicationwas premature. Court found that it is true that the Missouri lawsuit was 

indeed on file and Accurso conveyed a true fact when communicating only that point to Group 1. But 

Accurso did more: he sent a full copy of the petition to Group 1, and it contained mere allegations, i.e., 

their truthfulness had yet to be proven. Court stated that because the litigation was in its early stages when 

dismissed, it was unable to ascertain the effect of this Accurso communication upon Group 1. Court 

remanded to the district court for additional proceedings. 

Hamel v. Hamel 

___ Kan. ___, ___ P.3d ___, 2013 WL 1365335 (Apr. 5, 2013) (Moritz, J.) (Biles, 

J. dissenting) 


This appeal arose from a dispute over the administration of a trust between a beneficiary, Lawrence Hamel 

(Lawrence), and the trustees, Dennis Hamel (Dennis) and Leona Newell (collectively Trustees). Lawrence 

sought termination of his deceased father's trust, the Arthur L. Hamel Living Trust and its First Amendment 

(collectively Trust), and immediate distribution of Trust assets based on the Trustees' alleged failure to 

properly administer the Trust. Lawrence later moved to set aside a contract for deed executed between 

Dennis and his wife, as buyers, and the Trustees, as sellers, for the sale of farmland owned by the Trust. 

The Kansas Supreme Court held the district court reasonably interpreted ambiguous Trust provisions as not 

requiring the Trust's immediate termination upon Arthur's death. However, the court concluded the 

Trustees lacked authority to sell the farmland to Dennis under a 6-year contract for deed, which violated the 

Trust's express provisions requiring disposition of the farmland within 3 years of Arthur's death. The court 

declined to set aside the sale, however, because Lawrence's motion sought either reversion of the farmland 

43

to the beneficiaries or Dennis' payment of the contract price within 3 years, and Dennis had timely paid. 

Instead, because the Trustees' execution of the contract for deed violated the terms of the Trust, the court 

held that Lawrence had probable cause to challenge the Trustees' sale of the farm to Dennis under that 

contract. Therefore, the Kansas Supreme Court reversed both the district court's ruling regarding the 

Trustees' authority to finance the sale of the farm as well as its enforcement of the no-contest clause against 

Lawrence. The court remanded for further proceedings necessary, if any, to effectuate its rulings and for 

consideration of Lawrence's claim for attorney fees and costs. 

Biles J., dissented, disagreed with the majority's conclusion the Trustees lacked authority to sell the 

farmland, arguing they completed a "purchase" by reducing what was a farmland asset to a contract for 

ongoing installment payments and the language of the Trust did not prevent such a transaction. 



Judgment); Hemphill v. Shore, 295 Kan. 1111, 289 P.3d 1173 (Dec. 7, 2012) (Beier, J.) 

(Constructive Fraud); Jeanes v. Bank of America, et al., ___ Kan. ___, 295 P.3d 1045 

(Mar. 8, 2013) (Per curiam) (Cause of Action) 

UNJUST ENRICHMENT 

Uhlman v. Richardson 

48 Kan. App. 2d 1, 287 P.3d 287 (Aug. 3, 2012) (Leben, J.) 

Petition for Review filed Aug. 30, 2012 


Generic rules for unjust-enrichment claims do not apply here because more specific ones for contribution 

do. The Court of Appeals found that this case should not have been submitted to jury under a generic 

unjust-enrichment legal theory; the district court's judgment is reversed. Subject to any equitable defenses, 

the Richardsons are liable to Uhlmann for their pro rata share of the loan deficiency, which in this case is 

slightly greater than jury's award. Remand is necessary for trial court's consideration of equitable defenses 

asserted by the Richardsons. Uhlmann did not lose the right to appeal by getting the Richardsons to post an 

appeal bond but not collecting any money on the judgment. A judgment creditor who initiates some part of 

the process of executing on a judgment but does not collect any money or sell any of the debtor's property 

has not acquiesced in the judgment. This is so even if the debtor, in response, posts a supersedeas bond, 

which protects the judgment creditor's ability to collect the judgment while the appeal is pending. 

UTILITY RATES 

Citizens Utility Ratepayer Board v. KCC, et al. 



The court held that the Citizens' Utility Ratepayer Board (CURB) failed to explain how an award of rate 

case expenses over $2.1 million, which was to be amortized over a 4-year period, rendered the 

Commission's overall determination of KCP&L's final revenue requirement outside the zone of 

reasonableness. The court stated that it could only nullify a Commission order only when the decision is so 

unreasonable as to be outside the realm of fair debate. The court held that basic calculations establish that 

the Commission's order allowed $1.1 million more in rate case expenses than supported by CURB's expert 

witness. This amount, amortized over 4 years, accounts for approximately $275,000—or 1.25 percent—of 

KCP&L's rate increase. The Commission's final decision authorized a $21,846,202 revenue increase. This 

increase was determined necessary to give KCP&L the opportunity to earn income to meet its determined 

44

evenue requirement of $149,121,865. Therefore, even if the Commission acted improperly with respect to 

its determination of rate case expenses, CURB failed to establish that any error carried the Commission's 

overall rate determination outside the zone of reasonableness for its rates. 

WORKERS COMPENSATION 

Douglas v. Ad Astra Info Systems, LLC 

___ Kan. ___, 293 P.3d 723 (Feb. 8, 2013) (Johnson, J.) 


Douglas was awarded benefits under the Workers Compensation Act for an injury he sustained while 

operating a go-cart at an event sponsored by his employer, Ad Astra Information Systems, L.L.C. 

Employees were given the option of either attending the event or remaining at work. Ad Astra appealed the 

award, claiming that Douglas' injuries were not compensable under K.S.A. 2006 Supp. 44-508(f) because 

they were sustained during a recreational or social event that Douglas was not required to attend. The Court 

of Appeals, in a split decision, affirmed the Workers Compensation Board. Ad Astra then filed a petition 

for review. Our Supreme Court held that circumstances that will exclude an employee's injuries from 

coverage under the Workers Compensation Act are where the employee was under no duty to attend the 

recreational or social event and where the injury did not result from the performance of tasks related to the 

employee's normal job duties or as specifically instructed to be performed by the employer. The Court 

concluded that the Board applied the incorrect legal standard and reversed and remanded the case to the 

Board for further proceedings in conformance with the plain language of K.S.A. 2006 Supp. 44-508(f). 

Fernandez v. McDonald's 

296 Kan. 472, 292 P.3d 311 (Jan. 25, 2013) (Johnson, J.) 


Plaintiff, an employee of McDonald's, was injured on the job. McDonald's filed an accident report and 

subsequently learned that Plaintiff was unauthorized to work in the United States. Plaintiff sought a work 

disability award under K.S.A. 44-510e(a), but the ALJ denied the award on public policy grounds: since the 

purpose of the Workers Compensation Act is to assist injured workers to return to work but Plaintiff is not 

legally authorized to return to work in the United States, it would be against legislative intent to grant 

Plaintiff a work disability award. A divided Board reversed the decision and granted Plaintiff a work 

disability award, and McDonald's appealed. The sole issue on appeal before the Supreme Court was 

whether Plaintiff's unauthorized work status precluded a work disability award under the applicable version 

of K.S.A. 44-510e(a) (in effect prior to the 2011 amendments to the Act). The Supreme Court found that 

there was no exception in the plain language of K.S.A. 44-510e(a) precluding work disability awards for 

persons with unauthorized work status and noted that this conclusion was supported by reading the Act as a 

whole. It thus held that Plaintiff's unauthorized work status did not preclude her from receiving a work 

disability award. 

Hall v. Knoll Building Maintenance, Inc. 

48 Kan. App. 2d 145, 285 P.3d 383 (Sept. 7, 2012) (Bruns, J.) 


Hall was injured when he fell from a ladder while working on a roof for Knoll Building Maintenance, Inc., 

which is a Kansas for-profit corporation with shareholders who are all related to one another. Hall made a 

claim for workers compensation benefits, but his claim was preliminarily denied by an ALJ who found the 

Kansas Workers Compensation Act did not apply to Knoll because all of its shareholders were members of 

the same family. On review, the Kansas Workers Compensation Board concluded that the exclusion for 

family members set forth in K.S.A. 44-505(a)(2) did not apply to Knoll because corporations cannot have a 

family by marriage or consanguinity. On petition for review, the Court of Appeals affirmed the Board's 

decision, finding the Board correctly interpreted K.S.A. 44-505(a)(2) and applied K.A.R. 51-11-6, which 

45

states that "[t]he provision in K.S.A. 44-505 excluding the payroll of workers who are members of the 

employer's family shall not apply to corporate employers." 

Messner v. Continental Plastic Containers 

___ Kan. App. 2d ___, 298 P.3d 371 (Mar. 29, 2013) (McAnany, J.) 

Petition for review filed Apr. 25, 2013 


Messner was awarded benefits under the Workers Compensation Act for two separate injuries she sustained 

while working for Continental Plastic Containers. In her first claim, Messner sought compensation for 

injuries she sustained as a result of a fall. In her second claim, Messner alleged she received additional 

injuries to her right shoulder from repetitive job duties after her return to work. Continental appealed the 

award, raising three issues. First, Continental challenged the award of work disability, asserting that K.S.A. 

44-510e(a) prohibits an award of work disability because Messner's award would have been paid in full 

before she became eligible for work disability upon leaving her employment. The Court of Appeals held 

that the Board had the authority to enter a lump-sum award that provided benefits for Messner's functional 

disability, as well as her later work disability, because Messner showed an increase in disability during the 

415-week benefit period. Second, Continental claimed that Messner's shoulder injury did not arise out of 

and in the course of her employment. The Court of Appeals held the record discloses substantial evidence 

to support the Board's finding. Finally, Continental contended the Board erred in awarding Messner 

temporary total disability compensation because Messner's list of work restrictions that led to her leaving 

her employment were imposed by her personal chiropractor, not by an authorized treating physician. The 

Court of Appeals concluded that no authorized treating physician found that Messner experienced 

temporary total disability during the relevant time period as required by K.S.A. 44-510c(b)(2). The court 

reversed and remanded the case to the Board for a recalculation of Messner's award for her right shoulder 

injury. 

WRONGFUL DEATH 

See also, Martin v. Naik, ___ Kan. ___, ___ P.3d ___, 2013 WL 1850661 (May 3, 2013) 

(Per Curiam) (Medical Malpractice) 

ZONING AND PLANNING 

Hacker v. Sedgwick County 

48 Kan. App. 2d 164, 286 P.3d 222 (Sept. 14, 2012) (Malone, J.) 

Petition for Review filed Oct. 4, 2012 


A zoning variance permitted the Heins to operate a lawn care business on their rural land. As they grew 

their business over time, the Heins requested new variances to allow for further expansion. After review, 

the Board of Zoning Appeals granted the variances. Hacker and other area businesses filed suit, challenging 

the reasonableness of the decision to grant the variance. The district court found that self-created business 

growth amounted to a self-created hardship that could not be the basis for a variance. Accordingly, the 

district court vacated the Board's grant of the three new variances. On appeal, the Board argued that 

plaintiffs lacked standing because they were not within the narrow class of persons "aggrieved by" the 

zoning decision under K.S.A. 12-760 or "dissatisfied with" the zoning decision under K.S.A. 12-759(f). 

The Court of Appeals held that because K.S.A. 12-759(f) is the more specific statute, it is the sole avenue 

by which a party has standing to challenge the Board's decision. And to be "dissatisfied with" the Board's 

decision sufficient to confer standing a plaintiff must have a substantial grievance that may affect his or her 

pecuniary interests. Because the variance allowing the Heins to expand would increase traffic on the roads, 

46

the upkeep of which plaintiffs are required to pay, plaintiffs had standing to sue. As to the merits, the Court 

of Appeals held as a matter of law that self-created business growth is not an exception to the general rule 

that unnecessary hardships sufficient to permit a variance may not be self created. Accordingly, the Court 

of Appeals affirmed the district court's decision to vacate the variances. 

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Civil Case Compilation June 22 2012 - May 3 2013.pdf - Office of ...

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