Jerry G. Elliott

The case involved Daniel Yrigolla and Lawrence E. Ortiz, Jr., who appealed the denial of their petitions to expunge arrest records after completing diversion agreements for severity level 3 drug felonies. The trial court applied K.S.A. 2006 Supp. 21-4619(b), which imposes a 5-year waiting period for expungement petitions following diversion in such cases, rather than K.S.A. 2006 Supp. 22-2410, which has no waiting period and applies only to limited circumstances like mistaken identity or dismissed charges without diversion. The appellate court affirmed, interpreting the statutes based on legislative history showing that 21-4619 was amended to cover expungement of diversion agreements and related arrests, with the 5-year period extending to these drug offenses even without a conviction. The court reconciled the provisions by concluding that the specific waiting period in 21-4619 controls for petitioners in the defendants' situation. The ruling turned on statutory interpretation of plain language and intent regarding expungement eligibility.

criminal lawprocedure

The case involved Phillips County Sheriff Leroy Stephen, who suffered a work-related injury while handcuffing a prisoner and received work restrictions that limited his duties. After losing both the primary and general elections while under those restrictions, Stephen obtained a workers compensation award for permanent partial disability that included compensation for post-election wage loss under the Kansas Workers Compensation Act. The county argued that no such wage-loss benefits should be awarded without proof that the injury caused the election defeat. The court affirmed the award, holding that the statute calculates work disability based on the difference between pre- and post-injury wages without requiring a causal connection to the job loss, consistent with prior decisions allowing benefits after layoffs for economic reasons unrelated to the injury.

labor & employment

This case involved Resolution Oversight Corporation, as receiver for Western Indemnity Insurance Company, suing the Kansas Health Care Stabilization Fund for breach of contract over a 2000 letter agreement. Under the agreement, the Fund would reimburse $800,000 of a $1.2 million medical malpractice settlement if Western Indemnity obtained a declaratory judgment that its policy did not cover the Kansas claim. The district court granted summary judgment to the Fund, and the appellate court affirmed, holding that the Fund lacked authority to commit to payment without court approval as required by K.S.A. 40-3410, even though it had implied authority to seek a coverage declaration. The court dismissed the appeal's challenge to dicta on the statute of limitations for any statutory liability claim, as no such claim had been properly raised in the petition and the issue was not preserved.

healthcareproceduretorts & liabilitybusiness & regulatory

In State v. Jeffery, police responded to a report of a suicidal man at his apartment on New Year's Eve 2005, entered after he opened the door, handcuffed him, and then conducted a warrantless walk-through search of the entire apartment, discovering marijuana and drug paraphernalia in other rooms. The court held that this search violated the Fourth Amendment because none of the recognized exceptions to the warrant requirement applied: Jeffery had not been arrested, no protective sweep for officer safety was justified, and the emergency-aid doctrine did not permit searching areas beyond the immediate location once he was secured and there was no indication anyone else was present or injured. The court reasoned that officers had already addressed the immediate welfare concern, planned to remove Jeffery for a mental-health evaluation, and lacked any basis to associate an ongoing emergency with the rest of the apartment. Accordingly, the evidence was suppressed and the resulting convictions were reversed.

criminal lawprocedure

In State v. Moses, the defendant appealed his convictions for forgery and misdemeanor marijuana possession after a bench trial based on stipulated facts from a revoked diversion agreement. The court held that the diversion agreement was invalid and unenforceable because it omitted a specific waiver of the defendant's right to a preliminary examination, as expressly required by K.S.A. 22-2909(a). The statute mandates that diversion agreements include such waivers explicitly, and the court determined that "shall" in the provision is mandatory rather than directory, rejecting arguments that other language in the agreement implicitly satisfied the requirement. Because the agreement was invalid due to the missing waiver, the court reversed the convictions and remanded the case to restore the defendant to his pre-agreement position. The relevant topics are criminal law and procedure.

criminal lawprocedure

In State v. Durham, the defendant was convicted of forgery after pleading no contest. While in custody awaiting sentencing, he swallowed razor blades and received treatment at a medical center, prompting the county sheriff's department to incur costs for medical care, officer overtime, and lodging during his hospitalization. The district court ordered restitution totaling over $22,000, including medical expenses, overtime, and lodging under K.S.A. 2006 Supp. 21-4603d. On appeal, the court held that the statute authorizes restitution for medical costs and expenses incurred by law enforcement or the county without requiring a causal link to the crime, affirming that portion of the order. However, it vacated the overtime and lodging awards, interpreting the term "medical" to modify both "costs" and "expenses," meaning non-medical expenses fall outside the statute's scope under principles of strict construction in criminal cases.

criminal lawprocedure

In this case, adoptive parents Joe and Debra F. appealed a district court ruling that adjudicated their three children, A.F., J.F., and S.F., as children in need of care under Kansas statutes after finding that Debra had physically abused J.F. by striking him with a wooden paddle, causing bruising around his ear and other areas. The Court of Appeals of Kansas affirmed the adjudication, holding that substantial competent evidence supported the finding of abuse based on the child's injuries, the mother's admissions, and the circumstances of the incident. The court also rejected the parents' claim that the relevant statute, K.S.A. 2005 Supp. 38-1502(a)(11), was unconstitutionally vague, concluding that it provided sufficient notice that striking a child on the head with such an instrument was prohibited. The siblings were properly included because they resided in the same household as the abused child.

family law

In this Kansas Court of Appeals case, the paternal grandmother of a child in state custody challenged the district court's ruling that upheld the Department of Social and Rehabilitation Services' decision to place the child with a foster family for adoption rather than with her, after the parents' rights had been terminated. The court dismissed the appeal for lack of jurisdiction. The right to appeal is purely statutory, and the governing provision of the Revised Kansas Code for Care of Children permits appeals only from orders involving temporary custody, adjudication, disposition, unfitness findings, or termination of parental rights; a post-termination placement decision does not qualify. Although the Code provides for district-court hearings to review certain SRS placement changes, it does not authorize appeals from those rulings, and the court declined to create a new appellate category.

family lawprocedure

In Rice v. State, Jerry Rice, convicted by a jury of first-degree murder of his wife whose body was never found, filed a K.S.A. 60-1507 motion seeking a new trial based on claims of ineffective assistance of trial counsel (including 42 instances of deficient performance) and newly discovered evidence from witnesses who allegedly saw the victim alive after the murder date. The district court dismissed the trial counsel ineffectiveness claims as previously litigated on direct appeal, denied amendment to add an appellate counsel claim, and after an evidentiary hearing rejected the new evidence as not newly discovered, unreliable, and cumulative of trial evidence. The Court of Appeals affirmed the denial of relief on the new evidence and trial counsel issues under procedural bars like res judicata and Supreme Court Rule 183, but reversed the denial of amendment and remanded for further proceedings on the ineffective assistance of appellate counsel claim, applying unlimited review to the legal questions of procedural bars.

criminal lawprocedure

In State v. Ruiz-Reyes, the defendant appealed the district court's denial of his objection to using a later conviction to enhance the severity level of his current cocaine possession with intent to sell charge from level 3 to level 2 under K.S.A. 65-4161(b). The district court had imposed the enhanced sentence after the defendant pled guilty. The Court of Appeals reversed and remanded for resentencing, holding that the statute does not permit enhancement based on a conviction occurring after the instant offense. The court reasoned that the plain language using the present tense requires the prior conviction to exist at the time of the violation, that criminal statutes must be strictly construed in favor of the accused, and that the legislature's choice of narrower language here differs from broader definitions used for criminal history scoring.

criminal law

The case involved Gerald D. Pottoroff's conviction for failure to register as a sex offender under K.S.A. 2001 Supp. 22-4903 after he pled no contest to the charge. The district court excluded his prior conviction for attempted aggravated indecent liberties with a child from his criminal history score on the ground that it was an element of the failure-to-register offense, placing him in a lower sentencing category. The State appealed on a question reserved, first challenging whether it had preserved the issue for review and then arguing that the prior conviction should have been included. The appellate court exercised jurisdiction after finding the State's arguments at sentencing sufficient to preserve the question and affirmed the district court, reasoning that the statutory definitions in K.S.A. 2001 Supp. 22-4902 make a qualifying prior conviction an essential element of the registration duty and thus of the offense itself, precluding its use in the criminal history score under K.S.A. 21-4710(d)(11).

criminal lawprocedure

This case involves an appeal by Denise Ruth from a Kansas trial court's modification of the couple's 1994 divorce decree, which reduced John Ruth's monthly child support from $625 to $416 and altered the terms of his parenting time and visitation after Denise moved the children from Missouri to California. The court affirmed the modifications, holding that Kansas retained jurisdiction over both child support and custody issues under the UCCJEA because Denise had submitted to the court's authority through prior proceedings and her attorney was properly served. For child support, the court found that more than three years had passed since the original order and that the move constituted a material change in circumstances. For parenting time, the court determined that notice and service complied with Kansas law and that the trial court had authority to proceed on the merits despite Denise's absence at the hearing.

family lawprocedure

This case involves a husband's appeal from a Kansas trial court's rulings in divorce proceedings, specifically challenging the computation of child support and property division in the original decree, as well as the denial of his motion to alter or amend the decree and the dismissal of his motion for de novo review of a child support reduction request. The Court of Appeals dismissed the first four issues on appeal for lack of jurisdiction, finding that the notice of appeal only designated the February 2003 order and that the record was insufficient without the divorce trial transcript and exhibits. It affirmed the trial court's conclusion that the husband had abandoned his motion to alter or amend by filing a subsequent motion to reduce support with a hearing officer, and it upheld the dismissal of the de novo review motion for lack of prosecution under local court rules requiring timely scheduling of hearings. The core reasoning centered on strict application of appellate jurisdiction rules under K.S.A. 60-2103(b), the doctrine of invited error, and procedural requirements for motion practice.

family lawprocedure

This case involved David Kuzanek's appeal from a trial court's denial of his motion to end spousal maintenance payments to his ex-wife Karen under their divorce agreement. The agreement allowed termination of maintenance if Karen cohabited with an unrelated adult male for more than 30 days. The appellate court reversed the decision, holding that Karen and her romantic partner were cohabiting despite a written lease, as they lived together in a marriage-like relationship with financial sharing and mutual support, making the lease a mere legal device. The court reasoned that Kansas defines cohabitation by shared living and marital obligations, particularly financial interdependence, which was evident here through the partner's contributions and involvement with the family.

family law

The case involved Joseph Matthews, who was convicted after operating an unregistered entity called Chatan Corporation that accepted fees from clients with poor credit by promising to procure home loans or assist in real estate purchases using investor notes, but never closed any transactions and caused clients to lose approximately $95,000. A jury found Matthews guilty on multiple counts including unlawful acts as an unlicensed loan broker exceeding $25,000, theft, conducting an unregistered mortgage business, and related offenses under the Kansas Loan Brokers Act. The trial court imposed an upward durational departure sentence of 92 months based on a fiduciary duty finding. On appeal, the court affirmed the convictions, holding that Matthews met the statutory definition of a loan broker by accepting fees and promising loan procurement, that the charges were not multiplicitous with theft, and that any verdict form errors were harmless clerical mistakes. However, it vacated the sentence and remanded for resentencing because the upward departure violated the requirement that a jury determine aggravating factors.

criminal lawbusiness & regulatory

This case involved a dispute between buyer Brenda Werdann and dealership Mel Hambelton Ford over a used van purchase where a stock number error in the contract led to the dealership repossessing the vehicle without returning her trade-in value or providing title. Werdann sued for conversion, violations of federal TILA and odometer laws, and the Kansas Consumer Protection Act; the trial court awarded her conversion damages including punitives, granted the dealership summary judgment on the federal claims, and awarded full attorney fees. On cross-appeals, the appellate court affirmed the conversion and punitive damages rulings but reversed the attorney fees award. The core reasoning was that attorney fees could be recovered only for the successful KCPA claim and thus must be segregated from other claims, with the trial court permitted to reconsider punitives after proper segregation.

business & regulatorytorts & liabilityprocedure

In State v. Percival, Troy Percival appealed his jury conviction for aggravated robbery, raising claims including improper admission of evidence of his prior convictions in violation of an order in limine and K.S.A. 60-421, an allegedly coercive Allen instruction to the jury, and insufficiency of the evidence. The Kansas Court of Appeals affirmed the conviction, concluding that any error in admitting the prior conviction evidence was harmless, that the Allen instruction given before deliberations was not coercive, and that the evidence viewed in the light most favorable to the prosecution was sufficient for a rational factfinder to convict. The court rejected additional claims of error regarding jury instructions and cumulative error, finding that Percival received a fair trial.

criminal lawprocedure

This case involved a dispute between oil and gas companies over the interpretation of a 1992 farmout agreement concerning rights to Section 15-33S-33W in Seward County, Kansas. Slawson sought declaratory relief to establish rights to recomplete a well in additional formations like the Marmaton after initial production from the Chester formation, while First National resisted further assignments beyond the original test well. The district court granted summary judgment to First National on Slawson's claims and to Slawson on First National's counterclaims, and the appellate court affirmed. The core reasoning was that the agreement's language expressly limited assignments to productive formations encountered in the initial test well, and the well qualified as productive in commercial quantities under the standard of yielding profit over monthly operating expenses.

business & regulatorypropertyprocedure

In Vondracek v. Mid-State Co-Op, Inc., the Vondraceks sued Mid-State for breach of contract and fraud/misrepresentation arising from a 1988 settlement of earlier collection lawsuits, alleging they only learned in 1997 that their cooperative stock had been surrendered as part of the deal and that they faced additional fees to rejoin. The district court granted summary judgment to Mid-State on the fraud claim for failure to plead with particularity under K.S.A. 60-209(b) and imposed $6,500 in sanctions against the Vondraceks under K.S.A. 60-211. On appeal, the Kansas Court of Appeals affirmed the summary judgment because general notice pleading does not apply to fraud and the petition lacked the required specificity, but reversed the sanctions, holding that a pleading deficiency is distinct from filing a claim unwarranted by existing law and that the lower court failed to apply the relevant factors or properly attribute responsibility to counsel.

proceduretorts & liability

In State v. Campbell, the defendant was convicted after a bench trial on stipulated facts of possession of methamphetamine and manufacturing-related offenses involving its precursors in two consolidated cases arising from a traffic stop and a search warrant execution. Campbell appealed, challenging the denial of his motions to suppress evidence from both incidents, claiming multiplicitous convictions, and arguing that his sentence under K.S.A. 65-7006 should have been at a lower severity level rather than a drug severity level 1 felony. The Kansas Supreme Court affirmed the convictions and sentences, holding that valid consent supported the search in the first case, the warrant execution was proper in the second case despite a minor address discrepancy, the statutes at issue were not multiplicitous because they addressed different conduct with distinct elements, and the legislature clearly intended severe penalties for methamphetamine precursors under K.S.A. 65-7006.

criminal lawprocedure