Richard D. Greene

In State v. Dugan, a Lawrence police officer followed a suspect home after a reported misdemeanor hit-and-run, stuck her foot under his closing garage door to stop it, and entered without a warrant, discovering evidence of intoxication that led to DUI charges. The district court denied Dugan’s motion to suppress the evidence obtained from the entry, but the Court of Appeals reversed that ruling. The court held that the warrantless entry into the home violated the Fourth Amendment, as there were no exigent circumstances—such as true hot pursuit with urgency, danger to officers or the public, risk of escape, or imminent loss of evidence—sufficient to override the requirement for a warrant, even though probable cause existed for the minor offense.

criminal lawprocedurecivil rights

In Re the Appeals of Edmiston Oil Co. concerned whether oil and gas producers could claim a sales and use tax exemption under K.S.A. 2010 Supp. 79-3606(kk) for down-hole machinery, pumping units, casing, tubing, and related equipment used to extract oil and gas from underground formations. The Kansas Court of Tax Appeals denied the refunds, and the Kansas Supreme Court affirmed that ruling. The court held that the equipment is used for extraction from the earth rather than as an integral part of integrated production operations at a processing plant or facility operated by a processing business, where extracted oil or gas is treated or prepared before transmission to a refinery or wholesale distribution. It reasoned that the statute’s definition of “processing business” for oil and gas operations is limited to post-extraction activities, so pre-extraction or extraction-stage machinery and equipment falls outside the exemption even if characterized as preproduction or surface equipment.

business & regulatorytaxes

The case involved Johnson County’s appeal of a Court of Tax Appeals (COTA) order setting the 2008 ad valorem tax value of Joseph Brocato’s retail strip shopping center in Overland Park at $2,225,000. The property, which had experienced roughly 50% vacancy since 2004 due to access issues and other factors, was valued by the County at $2,871,100 using an income approach with a 4% market vacancy rate plus a one-year “below-the-line” rent-loss adjustment, while Brocato argued for no more than $1,794,800. The Court of Appeals reversed and remanded, holding that COTA’s valuation was flawed because the County failed to support its figure with competent evidence under USPAP standards. Specifically, the County improperly relied on a generic market vacancy rate without adequately incorporating the property’s chronic, long-term vacancy history into that rate and misused the rent-loss adjustment, which is intended only for short-term, temporary losses rather than ongoing conditions.

taxespropertyprocedure

The case concerned EOG Resources’ appeal of valuations set by the Kansas Court of Tax Appeals (COTA) for six newly producing oil and gas leases in Seward County for the 2007 and 2008 tax years. EOG contended that COTA’s figures improperly incorporated the temporary surge of flush production into both the annualized production rate and the assumed decline rate, contrary to statutory appraisal rules. The Court of Appeals reversed COTA’s determinations and remanded the matter for recalculation. It held that, when initial production begins after July 1 of the prior year, the appraiser must annualize all actual production data available by April 1, apply the 40 percent statutory reduction, use any available data showing a steeper decline than the assumed rate, and rely on quarterly comparisons once flush production has ended. These steps are required to avoid distorting the production and decline figures used to determine fair market value under Kansas ad valorem tax statutes.

taxesproperty

In State v. Grebe, defendant Dean Grebe appealed his sentences from four consolidated Sedgwick County cases in which he pleaded guilty to multiple counts of DUI (third and fourth or subsequent convictions), driving while suspended, domestic battery, and offender registration violations. The Kansas Court of Appeals affirmed the fines and terms of imprisonment but dismissed the challenge to the presumptive sentences. The court held that the district court did not err by imposing the mandatory DUI fines without considering community service as an alternative payment method, because Grebe’s 53-month prison term made it impossible for him to complete any required community service within the one-year statutory deadline. It also rejected Grebe’s constitutional challenge to the use of his criminal history to enhance his sentence, following controlling Kansas precedent, and concluded it lacked jurisdiction under K.S.A. 21-4721(c)(1) to review the denial of his departure motion or the length of the presumptive sentences.

criminal lawprocedure

In State v. Nye, the defendant appealed his felony DUI conviction, arguing that the district court improperly admitted evidence of his suspended driver's license under K.S.A. 60-455, that the prosecutor committed misconduct during closing argument, and that the court failed to make required findings before imposing a $2,500 fine. The Kansas Court of Appeals affirmed the conviction, holding that any error in admitting the license evidence was harmless given the other evidence of impairment and that the prosecutor's comments did not deny Nye a fair trial. The court vacated the fine and remanded, however, because the district court had not considered Nye's financial resources or the option of community service as required by precedent interpreting K.S.A. 2010 Supp. 8-1567.

criminal lawprocedure

In State v. Jackson, the defendant was convicted after a bench trial of possessing methamphetamine and drug paraphernalia found in her purse during execution of a search warrant at another person's residence that authorized searches of the target and residents. The district court denied her motion to suppress, reasoning that the purse was not in her physical possession so officers could open it to identify ownership. On appeal, the Kansas Court of Appeals reversed the convictions and remanded, holding the search unlawful because the purse belonged to a social guest not covered by the warrant and officers failed to make reasonable inquiries about ownership before searching. The court applied a notice-based approach requiring actual or constructive notice that the item belonged to the warrant's target, noting that simple questioning of the women present would have sufficed to determine ownership without violating privacy rights.

criminal lawprocedure

In this case, Morris County appealed an order from the Court of Tax Appeals requiring reappraisal of residential properties on City Lake land leased from the city, arguing prejudicial delay, insufficient findings, and misinterpretation of tax statutes. The Kansas Court of Appeals affirmed the order, holding that the county's appraisal method violated K.S.A. 79-412 by including the value of tenants' leasehold interests in the valuation of their improvements rather than allocating it to the city's fee simple interest in the land. The court reasoned that leasehold interests are not taxable to tenants and that location attributes belong to the land, not the improvements, consistent with prior precedent and the statutory scheme to avoid double taxation.

taxesproperty

The case involved a dispute over whether John Leavey could amend a revocable trust created under his late wife Barbara's durable power of attorney. The 1997 trust mirrored their 1987 joint contractual wills by directing that, after both spouses' deaths, assets including the Lake Quivira property would be split between Barbara's siblings and John's children. In 2002, John changed the distribution to favor his children and exclude Barbara's siblings. Barbara's sister, Harriet Eggeson, sued John's daughter and trustee to invalidate the amendment. The court held that the amendment was unauthorized because it did not produce an estate plan substantially similar to the 1987 wills and therefore breached the spouses' agreement; it affirmed summary judgment for Eggeson and ordered reinstatement of the original trust terms.

family lawproperty

This case involved a Kansas mother appealing a district court finding that she was an unfit parent to her five-year-old daughter K.P., which led to the appointment of a permanent custodian rather than her continued custody of the child. The State cross-appealed, arguing that the mother's parental rights should have been terminated outright. The Court of Appeals affirmed the unfitness determination, which was based on statutory factors including the mother's mental health issues, substance abuse history, criminal convictions, and failure to fully comply with reintegration plans, all supported by clear and convincing evidence. However, the court upheld the decision not to terminate parental rights, ruling that appointment of a permanent custodian was in the child's best interests given the established bond between mother and child, and that this option was permitted under the relevant statutes.

family law

In State v. Burns, the State appealed the district court's dismissal of forgery and theft charges against an inmate who had invoked his rights under the Uniform Mandatory Disposition of Detainers Act (UMDDA). The inmate filed a request for final disposition in August 2008 while serving a prison sentence, triggering a 180-day deadline for trial under K.S.A. 22-4303. The magistrate judge granted the State three continuances over the defendant's objections, including two for which no good cause was shown in open court—one due to internal office confusion and another due to failure to secure a witness. The Court of Appeals affirmed the dismissal, holding that the UMDDA requires good cause for any continuance extending the deadline and that the record did not support good cause for all delays, so the speedy-trial violation warranted dismissal.

criminal lawprocedure

In this medical malpractice and wrongful death case, the plaintiffs sued Dr. Zayat after Darryl McGinnes died from complications following an ERCP procedure, and a jury awarded them $2 million in damages. The trial court applied statutory caps under K.S.A. 60-1903 and 60-19a02 to reduce the award to $1 million, denied the defendant's request for a new trial based on evidentiary rulings, and awarded prejudgment interest. On appeal, the court held that the statutory damage caps are constitutional and need not be pled as an affirmative defense, that the defendant was not entitled to a new trial, and that the prejudgment interest award was an abuse of discretion because the damages were unliquidated until judgment was entered. The court therefore affirmed in part and reversed in part.

torts & liabilityprocedure

The case involved David and Janice Steed, who sued the McPherson Area Solid Waste Utility and its employee after a 2005 motor vehicle accident with a garbage truck, alleging negligence and related claims. The Utility moved for summary judgment, arguing that the district court lacked subject matter jurisdiction because the Steeds failed to properly serve their required notice of claim under K.S.A. 2008 Supp. 12-105b(d) on the clerk or governing body and because they filed their original petition before the 120-day statutory waiting period expired. The district court granted summary judgment on jurisdictional grounds but found substantial compliance with the notice requirements. On appeal, the Kansas Court of Appeals reversed, holding that the Steeds' timely amended petition filed after the waiting period cured any prematurity defect in the original filing, as supported by precedent allowing amended petitions to remedy premature actions without changing the claims, and that the original petition being void did not prevent the amended petition from satisfying jurisdictional prerequisites.

proceduretorts & liability

Scott Ochs sought underinsured motorist benefits from his employer's insurer, Federated Mutual, after being injured in a vehicle accident while driving a company propane truck and settling with the at-fault driver's insurer and his own personal policy. The trial court granted summary judgment to Federated Mutual, finding that the employer had validly elected lower underinsured motorist coverage limits of $50,000 for employees like Ochs through a signed option form under Kansas law. On appeal, the court affirmed, holding that the option form complied with K.S.A. 40-284(c), was authorized and unambiguous, applied to the policy at issue, and carried over from prior policies absent a written request for higher limits.

business & regulatoryproceduretorts & liability

This case involved a medical malpractice lawsuit brought by the widow and heirs of James Duncan against Dr. Robyn Hartvickson, alleging she negligently failed to diagnose a pulmonary embolism, leading to his death. After a trial where liability was contested, the jury found the doctor liable but awarded only economic damages and no noneconomic damages. The appellate court reversed the verdict and remanded for a new trial, holding that the district court abused its discretion by denying a motion for new trial based on evidence of jury misconduct in reaching a compromise verdict. The court reasoned that juror testimony indicated the jury agreed to find liability in exchange for reduced damages, which violated the verdict form instructions and was supported by the lack of noneconomic damages and the timing after a deadlocked jury instruction.

healthcareproceduretorts & liability

This case involved a wrongful death lawsuit filed by the administrator of Joseph Downing's estate against a school bus driver, his school district, and another motorist after Downing died in a collision at an intersection. The district court granted summary judgment to the bus driver and district, and the appeals court affirmed that ruling. The court held that the bus driver's hand gesture directing the other motorist to proceed did not create or assume a legal duty to ensure her safe passage across the intersection, as the other driver retained the duty to yield the right-of-way and could not delegate it through reliance on the signal; prior Kansas precedent controlled, and Restatement (Second) of Torts § 324A did not apply to signaling cases.

torts & liability

In Welsch v. Trivestco Energy Co., the plaintiff, successor to the lessors of an oil and gas lease from 1975, sought cancellation after the defendant lessee shut in the sole producing well on the unitized acreage for over two and a half years without paying required shut-in royalties, resuming production, or conducting additional drilling. The district court granted summary judgment to the lessee, ruling that the shut-in royalty clause created a covenant entitling the lessor only to damages, that the force majeure clause was triggered by the gas purchaser's bankruptcy and financial issues, and that the doctrine of temporary cessation of production applied to preserve the lease. On appeal, the court reversed and remanded with directions to cancel the lease, holding that the lease expired by its own terms when production ceased and shut-in royalties were not paid, that the force majeure clause did not excuse the payment default, and that the lease's specific cessation provisions controlled over general doctrines.

propertybusiness & regulatory

This case involved a minor child who called 911 after his mother suffered a seizure while driving, but the dispatcher disbelieved him, accused him of filing a false report, and ended the call without sending help, leading to claims of intentional and negligent infliction of emotional distress against the county. The district court granted summary judgment for the county on multiple grounds including the public duty doctrine, discretionary function immunity under the Kansas Tort Claims Act, and lack of admissible evidence of damages or causation, and the appeals court affirmed. The court held that the public duty doctrine meant the county owed no special duty to the child beyond its general duty to the public. Additionally, the plaintiff failed to provide expert testimony or admissible evidence of severe emotional distress and causation, relying instead on hearsay statements in an affidavit.

torts & liabilityprocedure

The case involved Charles Heinsohn, who obtained a judgment against a cemetery operator for unpaid maintenance work and sought to enforce his lien against certain cemetery assets in a state dissolution proceeding under K.S.A. 17-1367. The district court dismissed his claim after the legislature amended the statute in 2008 to retroactively nullify judgment liens on cemetery property and transfer the assets free of encumbrances to the county. The Court of Appeals reversed, holding that the retroactive amendment was unconstitutionally applied because it defeated Heinsohn's preexisting vested lien rights in violation of due process. The court reasoned that the statute could not constitutionally extinguish valid liens that had attached before the amendment and remanded for further proceedings on enforcement of the judgment.

propertycivil rightsprocedure

This medical malpractice case arose after surgeon Dr. Clark performed laparoscopic surgery on patient Margarita Munoz to remove her ovaries and other reproductive structures but received a pathology report indicating he had not removed ovarian tissue. Clark disregarded the report, informed Munoz and her primary care physician that the ovaries had been removed, and initiated hormone replacement therapy, leading to continued symptoms and a later discovery that the ovaries remained; Munoz sued for negligence causing pain and damages. The district court denied Clark's motion for judgment as a matter of law, and the appellate court affirmed that ruling while amending the judgment to deduct a minor sonogram cost. The core reasoning was that expert testimony established both the standard of care requiring reconciliation of surgical findings with pathology reports and that Clark's failure to do so proximately caused the patient's harms, with other appeal issues lacking merit.

torts & liabilityhealthcare