Kansas Bar Association Districts

Let Your Voice ----+--Aver land Park be Heard!

Out of State - 12 KBA Board of GovernorsRepresentatives

PRESIDENT: YOUNG LAWYERS SECTION PRESIDENT: DISTRICT 6: Michael P. Crow Eric G. Kraft Gabrielle M. Thompson (913) 682-0166 Leavenworth (913) 498-3536 Overland Park (785) 537-2943 Manhattan [email protected] [email protected] [email protected]

DISTRICT 7: PRESIDENT-ELECT: KOJA REPRESENTATIVE: Richard F. Hayse Hon. Patricia A. Macke Dick Laura L. Ice (785) 232-2662 Topeka (620) 694-2972 Hutchinson (316) 660-1258 Wichita [email protected] [email protected] [email protected]

VICE PRESIDENT: DISTRICT 1: Rachael K. Pirner David J. Rebein Thomas J. Bath Jr. (316) 630-8100 Wichita (620) 227-8126 Dodge City (913) 652-9800 Overland Park [email protected] [email protected] [email protected]

SECRETARY-TREASURER: Timothy M. O'Brien Mary Kathryn "Kathy" Webb Anne Burke Miller (913) 451-6060 Overland Park (316) 263-5851 Wichita (785) 539-6500 Manhattan [email protected] [email protected] [email protected] One seat vacant DISTRICT 8: EXECUTIVE DIRECTOR: Trish Rose JeffreyAlderman DISTRICT 2: ( 620) 663-7131 Hutchinson (785) 234-5696 To peka Gerald R. Kuckelman lawfirm@ourtownusa. net [email protected] (913) 367-2008 Atchison [email protected] DISTRICT 9: IMMEDIATE PAST PRESIDENT: Hon. Kim R. Schroeder Daniel J. Sevart Jeffrey S. Southard (620) 428-6500 Hugoton (316) 269-4215 Wichita (816) 329-8527 Lawrence [email protected] [email protected] [email protected]

DISTRICT 10: KBA DELEGATES TO ABA: DISTRICT 3: Glenn R. Braun Linda S. Parks Hon. Rawley J. "Judd" Dent (785) 625-6919 Hays (316) 265-7741 Wichita (620) 330-1080 Independence [email protected] [email protected] chiefjudge@l 4thj udicialdistrict-ks.org DISTRICT DISTRICT 4: 11: Hon. David J. Waxse Melissa A. Ta ylor (913) 551-5434 William A. Taylor III Kansas City (913) 551-5405 Kansas City [email protected] (620) 221-1120 Winfield [email protected] [email protected] KANSAS DELEGATE TO ABA: DISTRICT DISTRICT 5: 12: Thomas A. Hamill Michael A. Williams (913) 491-5500 Martha J. Coffman Overland Park (816) 292-2000 Kansas City, Mo. [email protected] (785) 271-3105 Topeka [email protected] [email protected] ABA DELEGATE AT LARGE: Hon. Christel E. Marquardt Thomas E. Wright (785) 296-6146 Topeka (785) 232-2200 Topeka [email protected] [email protected] TH�heJ2sg��t� June 2005 • Volume 74 • No. 6 ITEMS OF INTEREST REGULARFEATURES 6 5 "I Love Being a Lawyer" 4 President's Message Topeka Attorney Enjoys Being is Crow's Mantra 9 YoungLawyers Section News a World Traveler 7 10 A Nostalgic Touchof Humor 12 Thinking Ethics WashburnLaw Trial Teams 13 Members in the News SuccessfulNationally 13 "Jest Is For All" 14 Law Students' Corner 11 Plans Underway forFellows 41 Appellate Decisions Recognition and Awards 48 Appellate Practice Reminders 53 Classifieds

15 Board of Governors Briefing April 22, Leavenworth Coverp hoto: GagePark, Topeka. Photo by Beth 20 By Matthew H. Hoy Warrington, KEA publications coordinator.

16 KBA Welcomesnew Attorneys to the Kansas Bar 17 JUNE 27-30th 2005 Legislative Session Notice KBA CLE of new Legislation Passed (See inside back cover for The Economic Loss Rule in Kansas 40 registration information) and30 its Impact on ConstrnctionCases New Supreme Court Rule Mandates By Kevin J. Breer and use of new Cover Sheets Justin D. Pulikkan

Our Mission: The Kansas Bar Association is dedicated to advancing rhe professionalism and legal skills of The Journal Board of Editors Connie Hamilton Topeka lawyers, providing services to its members, serving the community through advocacy of Mark D. Hinderks OverlandPark public policy issues, encouraging public understanding of rhe law, and promoting the ASSISTANT EXECUTIVE DIRECTOR: Evan Ice Lawrence effective adminisrrarion of our system of justice. RenC Eichcm MANAGING EDITOR: Susan McKaskle Michael T. Jilka Kansas City Marra F. Linenberger Carbondale The journal of the Kansm Bar Association is published monthly with combined issues for Diane S. Wonh, CHAIR Wichita Hon. Tom Malone Topeka July/ August and November/December for a rota\ of IO issues a year. Periodical Postage Rares Hon. Sreve Leben, VICE-Cl·IAIR Olathe Michelle Masoner Kansas City paid at Topeka, Kan., and at additional mailing offices. T'l:Je journill of the Kilnsas Bilr Gregory L. Ash Lilwrence Julene Miller Topeka Association (ISSN 0022-8486) is published by rhc Kansas Bar Association, 1200 S.W. Anne L. Baker Topeka Brian J. Moline Topeka Harrison, l�O. Box 1037, Topeka, KS 66601-1037; Phone: (785) 234-5696; Fax: (785) Hon. Monti L. Beier \Vichita Hon. Lawton R. Nuss Topeka 234-3813. Member subscription is $25 a year, which is included in annual dues. Terri Savely Bezek Topeka Hon. James P. O'Hara Overland Park Nonmember subscription rare is $45 a year. POSTMASTER: Send address changes to The I-Ion. Donald W. Bostwick V(lichita Prof. John Peck Lawrence Jonrnal of the Kamas Bar Association, EO. Box 1037, Topeka, KS 66601-1037. Boyd Byers \-Vichita Mary D. Prewitt Topeka I-Ion. Nancy M. Caplinger Topeka Richard D. Ralls Kansas City The Kansas Bar Associarion and rhe members of rhe Board of Editors assume no responsibil­ Tamara Lee Davis Dodge City Michelle D. Reinert Dodge City ity for any opinion or statement of fact in the substantive legal articles published in The Hon. Jerry Elliott Topeka Prof. David L. Ryan Topeka Richard 1-1. Seaton journill o_{theKansas Bar Associlltion. Mary Fcighny 7opeka Mauhattlln Autumn Fox Abilene Marry M. Snyder Topeka J. Lyn Entrikin Goering Topeka Jeffrey A. Wierharn Topeka Publication of advertisements is not ro be deemed an endorsement of any product or service Dan Gronniger Topeka Manha Coffman,board liaison Topeka adverrised unless otherwise indicated. Diane 5. Worth, Board of Editors chairpmon, [email protected] COPYRIGHT 2005 Kansas Bar Association,Topeka, Kan. Susan McKaskle, managing edito1; smckask/e@ksba1:org A Fond Farewell

Why I Like Being a Lawyer But, it appears the broader problem is a lack of understanding and respect for our system of justice. t is 7:30 on Thursday night, and I am still at the The KBA can be at the forefront in providing edu­ Ioffice. I am 60 years old, and I've been practicing cational opportunities and information to the pub­ law for 32 years. I have a stack of work on my desk lic about our system of justice. that has to be completed no later than yesterday. I love being a lawyer. I have never ceased to be amazed chat I have the Parting Thoughts privilege to represent clients in every court in y long-time partner Lou Clothier, as well as Kansas, give legal advice (even if not always fol­ MMike Mogenson, have covered for me through­ lowed), and be an advocate. There seems to be a out the year during my absences from the office while certain amount I have been work­ of notoriety chat ing on, attending, comes with being I love being a lawyer. I have never ceased and dealing with a lawyer. We cer­ KBA duties. Kelly tainly have been to be amazed that I have the privilege to Egli, whor joined bombarded with our fi m in April lawyer bashing. represent clients in every court in Kansas, 2005, has also But, basically, we helped out. I also give legal advice (even ifnot always lawyers are prob­ want to thank lem solvers. The followed), and be an advocate. Sharon Jones (who real satisfaction has been with of being a lawyer us for about 20 is being part of a years), senior legal just resolution to a legal problem. secretary; Kristi Lake, our business manager; and our It is now 8 p.m., time to close the office for the newest staffmember, Jacqueline Thorne, receptionist, evening. Tomorrow morning I can start another who joined us full time in March 2005. I previously day of being a Kansas lawyer practicing with great thanked Becky Leos and will thank her again. And lawyers across our state. (I can't really be 60 years finally, special thanks to Marti, my wife, law partner, old, can I?) and legislator for all of her support, patience, and valuable insight. Independency of the Judiciary It's been a great year, and I learned a lot. I am grateful and feel honored to have had the chance to s many of you know, the Kansas Bar A serve the KBA as president for the year 2004 - Association has announced the formation of a 2005. Jeff Alderman, Rene Eichem, Deana Mead, commission on maintaining and promoting an Susan McKaskle, and the rest of the staff at the independent Kansas judiciary. The interest and KBA have been great to work with. I want to thank enthusiasm for the initiative by Kansas Bar each of them for all of their help while I have been Association membership has been impressive. KBA president. I also want to thank the officers The commission will study how to respond to and the Board of Governors. It has been a pleasure partisan and unfair criticism of judges in Kansas to work with you. Congratulations and best wishes and how to counter special interest, partisan judi­ for a successful year to Rich Hayse as he takes over cial evaluations. as the Kansas Bar Association president. ■

Michael P Crow can be reached by e-mail at [email protected] or by phone at (913) 682-0166.

4- JUNE 2005 THE JOURNAL OF THE KANSAS BAR ASSOCIATION KBA MEMBERPR OFILE Topeka Attorney Enjoys Being a Wo rld Traveler

By Beth Wa rrington, KBA publications coordinator he summer before graduating from high school, also a Topeka attorney, had been watching the news coverage Topeka-native Wayne Probasco and his friend, Steve and decided to visit the wall as soon as they could in order to TDaniels, hitchhiked to California. Originally, the plan witness the historical event. was to become wealthy by working in the shipyards, but When the Probascos arrived in Berlin, the wall was still instead they spent being torn down. He and Lou used sledgehammers to their time vacation­ help dismantle the wall and managed to save some of ing. Now at 79, the broken pieces to bring home as souvenirs. Probasco, a solo prac­ In 1992, Probasco spent two nights in Vladivostok, titioner, is still travel­ Russia, after the city reopened co visitors. From there he ing the world, sig t­ spent nearly seven days on the Trans-Siberian Express to . � see111g, mountain Moscow, logging more than 6,000 miles from start to climbing, marathon .,. finish. running, and motor­ He said watching the countryside was very tiresome and cycling. uneventfulthrough western Russia, but "you had to realize "I always had this country was so worn and tired after communism." an interest in the In 2002, he and Lou were in London, where they vis­ outdoors, travel, ited the grounds at Wimbledon. After taking a tour, they and history, " said noticed people Probasco, who camping outside has visited every the grounds. Their European country Probasco stands in the shadow of Mount guide explained Everest in Nepal. Everest is one of the greatest except Norway and challenges for mountain climbers. that the first 500 Albania. people in line After high school, could gee tickets co Probasco spent 17 months in the U.S. Air Force, where he the tennis matches was a gunner on a B-29 bomber during World War II. He the following day. then attended Washburn University under the G.I. Bill and "We put up a earned his bachelor's degree in 1950 and his juris doctorate tent and spent the in 1951. night," he said. Bei ng a solo prac­ "The camaraderie titioner has allowed was a picnic." him to indulge in He said the his love of travel Lou (left) stands with natives in front of Lake atmosphere chat with the occasional Titicaca in Bolivia. Crossing the lake was the evening was like a second to last stop before ending their South month-long trip as American journey in Santiago, Chile. party, with grilling, well as shorter trips drinking, and hav­ lasting only a few ing a good time, weeks. He still prac­ but it was lights out forever yone at 10 p.m. tices with a limited The next morning, event organizers provided breakfast caseload. of cereal and coffee to all of the campers, who stood in Before traveling, line for hours in hopes of getting tickets. Probasco and Probasco said he uses Lou managed co procure center court seating. the "Let's Go" or "They were great, great tickets," he said. "Last year we "Lonely Planet" Probasco is flanked by his daughter, Jennifer (I), and his did it again, taking family with us, and then we went on travel guides to help wife, Lou (r), in front of the Taj Mahal in India. The Taj co Paris and Rome." set the agenda. He Mahal is included on the list of the world's foremost His traveling companions include Lou; daughters, tends to stay at small wonders. Paula, Kristi, and Jennifer; son, Jeff; and his 11 grand­ I ocal ho eels or bed children. and breakfasts, which he said is one of the best ways to save The Probascos once traveled to Peru, where they started money. their journey at Machu Picchu, an ancient Incan city north­ "You have to have a lot of free time and money to travel," west of Cuzco. From there they cook a bus co Lake Titicaca, he said. a boat to Bolivia, a train across the Andes Mountains co One of Probasco's more memorable journeys cook him to Chile, and a 2,000-mile bus ride co Santiago, Chile. the site of one of the modern era's most historic events, the fall of the Berlin Wall in 1989. He and his wife, Lou, who is (co ntinued on Page 8) THE JOURNA L OF THE KANSASBAR ASSOCIATION JUNE 2005 - 5 'I Love Being a Lawyer' is Crow's Mantra B Susan M. McKaskle, mana in editor y jo urnal g g , , love being a lawyer" is for"P roject Call Up," a pro­ the mantra of KBA gram where KBA members I President Mike Crow. volunteer to draft basic wills He brings chis ideal not only to and durable powers of attor­ his practice of law, but also to ney for the families of those his service to the KBA. affected by war. Although "I believe chat the KBA and these are all activities that Kansas Bar Foundation con­ added to the contributions tribute much to the profession Crow made to the KBA dur­ and the betterment of society," ing his presidency, he felt his he said. administration had a central Crow credits 1997 KBA focus. President John C. Tillotson for "My time as president encouraging him to become focused on increasing mem­ more involved with the KBA. bership," Crow said. "The "John has been my mentor newly formed Membership with the KBA, " Crow said. Committee deserves a great "He encouraged me to run for deal of credit. I am pleased District 2 Representative in that we have been very suc­ 1995 and then for an officer's cessful in that endeavor." position in 2001." As part of his focus on Crow has served on the KBA membership, Crow felt it was Board continuously since important to increase member 1995. benefits. In October, he suc­ The KBA had a number of cessfully added a health insur­ accomplishments during ance option to the growing list Crow's tenure. Tw o chat came KBA President Mike Crow and his wife, Marti, at the champagne reception, of member benefits. to fruition during his term hosted by the KBA for the new admittees to the Kansas Bar, after the Fall 2004 Part of the duties of swearing in ceremony. were the reciprocity ruling and the KBA president is getting the announcement from Gov. to know the presidents Sebelius proclaiming May as "Jury Appreciation Month." of other state bar associations. "It is important to note chat the Kansas Bar Association "Nothing like lawyers trading thoughts and ideas," Crow has been working toward these goals for a number of years," said. "Those discussions led to forming task forces on Crow said. "The real credit goes to the KBA Board of lawyer advertising, independency of the judiciary, and juror Governors and staff, the Reciprocity Task Force, past KBA appreciation." presidents, our judicial system, and many ochers." Crow's wife, Marti, and their daughter, Jennifer, are also Crow, accompanied by Edwin H. Bideau III, chair of the KBA members. Marci was able to attend the Missouri and KBA Unauthorized Practice of Law Task Force, appeared Oklahoma bar associations' annual meetings with Crow, before the Kansas Supreme Court to submit the task force's despite her duties as a member of the Kansas House of report and formal recommendations for the Court to define Representatives. the practice of law in Kansas. "Marti, like me, loves the KBA," Crow said. "She has good The original KBA recommendations on reciprocity were ideas. Her input on legislative issues of interest to lawyers presented to the Court by KBA Immediate Past President was vital." Dan Sevarc. Crow was active during the attorney review Jennifer, who lives in To peka, is a 200 1 graduate of phase and the subsequent Court hearing. Washburn University School of Law. She is the Governor's The independence of the Kansas judiciary became a focal Legislative Liaison to the Senate. point formany in the state during Crow's term. "The Kansas Bar Association made great strides under the "As KBA members know, there have been recent attacks on leadership of President Crow," said KBA Executive Director the independence of the Kansas judiciary," Crow said. "The Jeffrey Alderman. "From day one, he focused on serving the KBA has formed a commission to support their independ­ membership and profession, and we all benefited from his ence, and we need to follow through on this important great ideas and dedication." issue." Crow may be stepping down as KBA president at the 2005 Crow is a member of the KBA Raising the Bar, KBA Annual Meeting, but his active support of the goals of Membership, and Nominating committees; the KBA Fee the KBA and the prestigious practice of law will undoubt­ Dispute Resolution and Ethics Grievance panels; and the edly continue throughout his career. ■ Annual Meeting Planning Task Force. He is also a volunteer

6-JUNE 2005 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Washburn LawTr ial Teams Successful Nationally

By Tad Layton, Coffman, Defries & Northern P.A., Topeka

he Washburn University School of Law Trial School of Law Samford University, 2004 Quarter-Finalist; Advocacy Te ams recently earned national recognition. and the University at Buffalo Law School. Washburn Law TThe outstanding team of William Burris, Brette Hart, emerged fr om the preliminary rounds with Baylor Law Nicholas Purifoy, and Thomas Tr unnell finished as national School and the University of North Carolina School of Law semi-finalists in the 2005 Association of Trial Lawyers of as the only undefeated teams. Washburn swept Cumberland America Student Trial Advocacy Competition (ATLA STAC) in the quarter-finals, 3-0, earning a number one ranking in the semi-finals (Baylor, No. 2; Barry University School of Law, No. 3; St. Johns, No. 4). Washburn was narrowly defeated by St. Johns in the semi-finals by just one ballot. Baylor defeated St. Johns to win the 2005 National Tr ial Championship. Also noteworthy is that Washburn's national finals team earned the right to compete in Florida only after defeating the other Washburn Law Trial Te am of John (Todd) Hiatt, Christina Waugh, Michael Burbach, and Brandi Studer in what was an all-Washburn final round of the Denver Regional. It is accurate to say that Washburn Law is home to several of the top student trial advocates in the United States. The Washburn Law Tr ial Te ams are coached by Tad Layton The University of Washburn School of Law Trial Advocacy Team of (I to r) of Coffman, Defries & Nothem P.A., Topeka, and are prod­ Thomas Trunnell; Tad Layton, coach; Brette Hart; William Burris; and Nicholas ucts of Washburn Law's innovative Center for Excellence in Purifoy finished in the top four in the 2005 National Association of Trial Lawyers of America Student Trial Advocacy Competition. Advocacy (washburnlaw.edu/centers/advocacy). ■ held at West Palm Beach, Fla., April 7- 10, 2005. In finishing as one of the top four trial teams in the nation, Washburn Law received national attention for its trial program and great respect and praise from tournament directors, attor­ neys, judges, and other student competitors and their coaches. The ATLA STAC is the premier civil trial competition in the United States. Mock trials started in February in 14 cities across the country where 224 teams from 138 law schools faced each other in regional competitions. Only the top team from each region earns the right to compete in the National Finals held in West Palm Beach. See information about other regional winners at: a da. org/ members/laws cud/ STA C/ 2 005 regionalwinners. aspx. Members of the two Washburn University School of Law Tr ial Teams are (first In the three preliminary rounds of trials at the national row, I to r) Christina Waugh; Tad Layton, coach; Nicholas Purifoy; and Brandi finals, Washburn Law defeated Loyola University Chicago Studer. (second row, I to r) Thomas Trunnell, Brette Hart, and William Burris. School of Law, 2000 National Champion; Cumberland (back row) John (Todd) Hiatt. Not pictured: Michael Burbach.

THE JOURNAL OF THE KANSA S BAR ASSOCIATION JUNE2005 -7 World Traveler completed their first marathon in Lincoln, Neb. The next year, both men ran a marathon in Stockholm, Sweden. (continued fom Page 5) During chat marathon, they noticed that the 11,000 to Probasco's other travels have taken him across the globe to 12,000 spectators would start clapping sporadically as they India; scuba diving in the Caribbean; to Egypt to see the ran by; unbeknownst to chem, they were running next to pyramids; from Portugal to Morocco; and to the United Ingemar Johansson, the 1959 world heavyweight-boxing Arab Emirates, Dubai, Singapore, and Bangkok. champion. As time has passed, Probasco has also taken on another mode of traveling: motorcycles. "I have done quite a bit of riding here in the U.S.," he said. "My son said we have taken nine trips and have traveled through California; Washington, D.C.; New York; Maine; Mexico; and Canada." One of the more extensive motorcycle road trips that Probasco has taken was with his high school traveling companion, Daniels, fromTopeka to Panama City, Panama, in 1978.

Probasco looks into Jerusalem, where he was joined by a group of bike enthusiasts for three weeks. His bike trip took him down the Sinai.

With all of his travels, Probasco managed to find the time to take on another adventure: mountain climbing. His first climb was Longs Peak in Estes Park, Colo. , and that was just the beginning. On one such journey, Probasco scaled the Himalayas in Nepal. "We started out at 10,000 feet and then climbed to the Mount Everest base camp at about 18,500 feet," he said. "There was absolutely no heat at all, just kerosene to cook Lou stands in front of St. Basil's Cathedral in Moscow after a 6,000- the food." mile journey from Vladivostok, Russia He spent about three weeks staying on the same route where some of the best climbers begin their ascent up Mount "Steve and I rode our l 75ccs to the Panama Canal," he Everest. said. "We couldn't sell our motorcycles due to the country's "This is where the 'big deal guys' started," he said. "If you customs laws, so you had three options: one, give it to the know the book, 'Into Thin Air' by Jon Krakauer, that was government; two, ship it out; or three, ride it out." the same route we were on." Probasco gave his motorcycle to the government because He has also climbed Mount Kilimanjaro in Tanzania, he couldn't grasp the idea of riding it back, while Daniels Mount Kinabalu in Borneo, and Mount Whitney in shipped his back. California, just to name a few. He is showing no signs of slowing down with his world Next, Probasco decided to give marathon running a cry at travels. Later this summer, Probasco plans on taking another■ the age of 54. In 1981, he and his friend, Terry Jacquich, motorcycle trip; his destination is currently unknown.

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8-JUNE 2005 THEJO URNAL OF THEKAN SA S BAR ASSOCIATION What a year!

By Eric Kraft, KBA Yo ung Lawyers Section president s you read this, I will be preparing to go to Vail, KBA is an outstanding amalgamation of talented people who Colo., to attend the KBA Annual Meeting, where I work solely to serve Kansas attorneys. I would list them all, Awill end my term as the president of the Yo ung but I don't have the room to do so. Besides, you need to get Lawyers Section. It will be a bittersweet day. I have to the bar offices and discover this great group of people for immensely enjoyed my term in office; it has enabled me to yourself. meet and work with some great people and true professionals Additionally, I need to thank the YLS Executive from all over the country. I have attempted to utilize that Committee. You all have shown me that the YLS is in good experience to benefit our section, hands for the future. Mark my words, your future bar leaders but I have also been the benefici­ of tomorrow are in this group, and I will be proud to sit with ary of many of those benefits them at future bar events. I couldn't have accomplished any­ myself. These benefits are too thing this year without their help. numerous to list here; however, I Finally, I would also like to recognize the YLS member­ can offer my appreciation to ship. Repeatedly, I have been amazed by the generosity, time, many of the people who I have and commitment you show your communities, your profes­ come to admire for their contri­ sion, and the KBA. After each column, it seemed chat I got butions to our profession. another call, e-mail, or other communication that let me As president of the YLS, I know that you were all there, ready and willing to help out. received the distinct opportunity Keep up the good world We young Kansas attorneys have a to serve on the KBA Board of lot for which we can be proud. Governors and on its Executive This has been a difficult and an exciting year, personally Committee. In that capacity, I sat and professionally. I have endured a lot but have gained Eric Kraft through numerous inane discus- much in the form of wisdom, experience, and knowledge. To sions, but I also helped to shape my friends, thank you. I have appreciated all of your support the identity of the larger bar. I met a number of very dedi­ these past months. Of course, my wife, Jennifer, and son, cated lawyers who were not only willing to give me a seat at Jackson, have sacrificed their time with me to enable my the table but were also willing to listen to young lawyers' con­ involvement this year in the KBA YLS. I truly appreciate and cerns and ideas. That's not to say that all of these ideas were love them both for making those sacrifices to grant me the immediately accepted, but the board never dismissed any idea indulgence of serving the YLS. It is with that gratitude that I just because it came from the YLS. In fact, I have learned that fade into■ the ambiguity of YLS past presidents and bid you many bar associations do not give their young lawyers sec­ farewell. tions a seat on their board of governors, let alone a vote, and a spot on the executive committee. By simply providing these Kraft is an associate with the Lawfirm of Duggan, Shadwick, opportunities, the KBA has been receptive to the YLS for Doerr & KurLbaum P.C. in Overland Park and can be reached many years. For all of these things, I thank each and every at ekraft@kc-dsdLaw. com or by caLLing (913) 498-3536. board member for your continued support of the YLS. I would also like to thank President Mike Crow for his encouragement of the YLS. Mike has been a great backer of PEOPLES the YLS and its goals this year. We couldn't have done all WEALTH that we set out to do this year without his support and guid­ . MANAGEMENTLLC ance. Mike has also performed an outstanding job in his ✓ term as the KBA president. After serving in my position, U••• put JM:>Ph.fim. which is admittedly less work than that of the KBA presi­ dent, I can truly appreciate the limited amount of time you have to implement the goals you set in June. Mike has per­ formed admirably and should be commended. I would be remiss to suggest that my job could have been accomplished without JeffAlderman, Rene Eichem, and the rest of the KBA staff. Jeffwas a fantastic addition to the KBA and has rejuvenated the bar. I can attest that the entire atmosphere at bar meetings, CLEs, and within the bar offices Jim Reardon J .D. CFP® has vastly improved since Jeff's arrival. He is also a big sup­ Financial Advisory Services porter of the YLS and for that, I thank him. Rene has been fo r Legal Professionals our principal liaison in the KBA. She is a very enthusiastic 1414 SW Ashworth Place. Topeka and energetic supporter of the YLS and has been there for us 785/27 1 -8097 around every corner. But neither of these bar leaders could www.peopleswealthmanagement.com do their jobs without an outstanding staff. The staff at the Sccuri1ics and J\th

By Matthew Keenan, Shook, Hardy & Bacon, Kansas City, Mo. lient confidentiality has special Airlines. Southwest makes money meaning to lawyers and their these days because it's the plane of Cclients. But these days it seems choice for the textbook "sales guy. " that lawyers are the only ones keeping "Sales guys" are a rare breed of profes­ secrets, well, secret. Maybe it's just sional. Nothing they do is secret. me, but as best I can tell, our culture They take great pleasure in using puts no stock in the notion that some their cell phones in public, especially things are private and should remain in tight spaces. They always talk loud, that way. We seem to reward those as if they are making a sales pitch to who are willing to tell the world what the MRP. And so as luck would have used to be privileged, personal, "none it, "sales guy" was dialing for dollars of your business" type of details. That while he stood on my toes. I heard is certainly true in places like every second of his call. So did board­ Hollywood and Washington, D.C., ing groups A, B, and C. where networks make kiss-and-tell The call went like this: "Skip. Biff stories prime time news. here. Got your voice mail. Let's net­ Apart from the legal profession, work right away. I'll arrange an RFP. there have always been a few other Please FedEx it to my home ASAP." safe harbors of confidentiality. But As he babbled he used one of those lately I'm not so sure about those. ear phones that curled around across Ta ke the penitent/priest privilege for his face like a scene from "Star Trek, instance. What you say to your priest the Lost Generation." A less is offlimits. So far, so good so you informed bystander was probably say. But that's hardly true in our impressed by it all. He may have con­ home. The teenagers under our roof get together before the cluded this guy just called Bill Gates and sold him a new annual trip to the confessional. Because most of their trans­ software system. But the actual translation was this: "Let's get gressions have a "spokes and hub" type of conspiracy, they a pizza delivered to my apartment and watch professional get their stories straight - swear words, talking back to par­ wrestling. I got a new water bed. It's cool." ents, slugging the kid sister. That way they ensure that they Long ago, people only made phone calls in a phone booth. don't do anything truly horrible: committing sins while It had a door that shut firmly. It even had a big thick book in confessing sins. it, with every phone number you needed. Phone booths have Another example came to mind recently. During the elec­ disappeared everywhere,■ save one place. The county court­ tion of the new pope, the cardinals were sworn to secrecy. house. How refreshing. The penalty was excommunication, which I think is like a lifetime in hell or Columbia, Mo.: cardinals' choice. Yet the About the Author day before the election, The New York Times ran a huge Ma tthew Keenan grew up in Great Bend and attended the story that claimed to have interviewed almost half of them Un iversity of Ka nsas, where he received his B.A. in 1981 and "on background" where they expressed their choices. This his JD. in 1984. Of five chil­ allowed the Times to do exit polling beforethe polling. dren raised by Larry and Mo na Doctors are supposed to embrace patient confidentiality Ke enan, fo ur are attorneys: too. Litigation is replete with waivers, of course. Ye t even Ma rty and Tim practice with outside the personal injury context it's no sure thing. Larry in Great Bend, and sister Hospital elevators are chock full of admonitions to physi­ Beth is a tax attorney fo r cians about maintaining patient confidentiality. Attorneys B!acl?we!l Sanders in Kansas need no reminding. Think about it. When was the last time City, Mo. For the last 20 years you were at a law firm and saw on the elevator a "do not dis­ Ma tt has practiced with Shook, cuss your client's guilt in this elevator" reminder? Ha rdy & Bacon. In his sp are So I think it's cool that our profession is one where we can time he writes columns forthe hold secrets. Where what we do is really no one's business Kansas City Star Neighborhood News, which is published in but those who pay our bills. So while this column was still theJo hnson Co untyeditio ns of the paper. He has a Website with circling my brain, I had another reminder of how our profes­ some of his writings over theyear s, www. matthewkeenan.com. sion is so old-fashioned. I was at the KCI airport in one of He and his wife, Lori, live in Leawood, but sp end most of their the "holding pens" where there is no food, drink, or bath­ time running a cab service for their fourchildren. Ke enan has room but lots of security personnel performing "special been a member of the Ka nsas Bar Association since 1984. screenings." I was waiting for my flight on Southwest

10 -JUNE 2005 THE JOURNA L OF THE KANSA S BAR ASSOCIATION Plans Underway for Fellows Recognition and Awards

lease note that the Board of Trustees of the Kansas Bar Foundation has voted to post­ pone this year's Fellows Dinner, which had originally been scheduled for Saturday, June 11, at the KBA Annual Meeting in Va il, Colo. KANSAS BAR FOUNDATION P We have tentatively rescheduled the Fellows Dinner for Friday, Sept. 23, 2005, in Wichita. ...ser ving the citizens of Kansas and rhe Those added to the published roll of fellows and those who have reached a new contribution legal profession through funding charirable level will be honored at the dinner. A special Robert K Weary Award recipient will also be and educational projects char fosterrhe wel­ fare, honor, and integrity of rhe legal system announced at the dinner. Details of the dinner will follow later. by improving its accessibility, equality, and Foundation members are still encouraged to attend the upcoming KBA Annual Meeting as uniformity, and by enhancing public opin­ all fellows will be recognized at the new "Changing of the Guard" Dinner Dance on Friday, ion of rhe role of lawyers in our society. June 10, Kansas Law Center Thank you for your continued support of■ the Foundation's charitable and educational 1200 S.W. Harrison Sc. activities. Together we can make a difference, l'.O. Box I 037 Topeka, Kansas 66601-1037 Te lephone: (785) 234-5696 Fax: (785) 234-3813 \'(lc b sire: www.ksbar.org

OFFICERS Gloria Farha Flenrje, Wichita Vo lunteers Needed for Elder Law Hotline President What is the Elder Law Hotline? H. David Starkey, Colby Presidcnr-Elccr The Kansas Elder Law Hotline, which is funded in part by the Kansas Bar Foundation and Sally D. Pokorny,In dependence Kansas Bar Association, provides Kansas senior citizens access to an attorney to advise them Secretary-Treasurer about legal questions in civil cases and referrals to other resources for additional assistance, Thomas A. Adrian, Ncwron The hotline is available to persons who live in Kansas who are age 60 or older. Past Presiden r How does it work? BOARD OF TRUSTEES Sara S. Beezley, Girard Mary Bech Blake, Overland Park All volunteers with malpractice insurance will be listed in a special elder law referral panel Robert M. Collins, Wichita of the Kansas Bar Association's Lawyer Referral Service at no charge. Volunteers will be Joni S. Franklin, Wichira Thomas D. Herlocker, Winfield referred elder law clients from his or her area with cases such as probate, estate planning, John D. Jurcyk, Roeland Park guardianship/conservatorship, personal injury, etc. LRS rules (including remitting 10 percent Bruce W. Kent, Manhattan of fees more than $300) apply to the elder law referral panel. Individuals must pay the Lawyer Teresa M. Meagher, Leawood Thomas V. Murray, Overland Park Referral Service registration fee to be listed on other area of practice panels. James D. Oliver, Overland Park Daniel J. Sevart, \V ichira Volunteer now! Sarah B. Shattuck, Ashland Wayne R. Tate, Hugoton Hon. David J. Wa xse, Kansas City The Elder Law Hotline asks that attorneys volunteer a three and one-half hour block of James C. Wright, Topeka time every other month. Calls will be transferred to the volunteer's office along with demo­ graphic information about each client. To volunteer for the Elder Law■ Hotline, contact the Kansas Bar Association at (785) 234-5696 and request an application, Richard J. Liby, Wichita Yo ung Lawyers Rcpresenrarive

Hon. Steve N. Six, Lawrence Kansas Tr ial Lawyers Association Represenrarive Still Time to Join LawyerRef erral Service Hon. Evelyn Z. Wilson, To peka Kansas Women Attorneys Association Representative n 2004, Lawyer Referral Service referrals generated more than $1,2 million in client fees for Ilawyers who participated in the program. The service has become a convenience forpeople Daniel H. Diepenbrock, Liberal who need a lawyer, but do not know how to locate one. Kansas Association of Defense Counsel Representative Lawyer Referral Service staff refer clients in a variety of areas of law. The most common referrals are made in the areas of divorce, medical malpractice, and contested custody. The LRS receives its clients from multiple sources, including yellow page advertisements, Kansas EXECUTIVE DIRECTOR Jeffrey J. Alderman, To peka Legal Services, the courts, and other attorneys. For more information about the KBA Lawyer Referral Service or to request an application, please contact Bar headquarters at (785) 234-5696. An application can also be downloaded at MANAGER PUBLIC SERVICES ■ Janessa Akin, To peka www.ksbar.org/LRS/LRS-app.pdf.

JUNE 2005 - 11

THEJO URNAL OF THE KANSA S BAR ASSOCIATION Thinking Ethics Obtaining Valid Waivers of Conflicts of Interest By professorSheila Reynolds, Was hburn University School of Law Nonwaivable conflicts • the right of the formerclient to refuseto consent. A prerequisite to any client waiver is a "lawyer waiver," that is, Clients should be given a reasonable opportunity to consider a decision by the lawyer that the lawyer will be able to provide the risks and alternatives and to raise questions and concerns. adequate representation to the client or clients, despite the con­ 1 Written documentation of client waivers flict. That decision is not subjective, but must be made fromthe 2 Although the Kansas ethics rules do not currently require objective standpoint of a reasonable lawyer. If a reasonable and that conflict waivers by clients be in writing,7 a lawyer should disinterested lawyer would conclude that one or more of the always obtain a written consent for purposes of clarity and affected clients should not consent to the conflicted representa­ proof. Written confirmation of a waiver is not a substitute, tion, the conflict is nonwaivable. In many situations, the inter­ however, for firstthoroughly discussing the nature and risks of ests of clients are so different that one lawyer cannot advocate the conflict with the client. the interests of one without impairing the interests of the other. An example is joint representation of co-defendants in a criminal Consent to future conflicts case, whose defenses and plea bargains3 could render their repre­ Although Kansas has not decided the issue, most authorities sentation constitutionally ineffecrive. Another example is repre­ agree that waivers of objections to future conflicts are not per se sentation of buyer-seller in a complex real estate transaction, unethical and may be upheld if the future matter is adequately where both parties should receive extensive, independent advice identified, the client8 is adequately sophisticated, and the waiver about protection of their rights and interests in the transaction.4 is reasonably recent. For example, a law firm is asked by large Joint representation of opposing parties in litigated matters is not corporation B for legal advice on an intellectual property mat­ permitted, even with client consent.5 ter. The firm does not expect legal business from B beyond this discrete matter. The firm asks B to agree waive objection Consultation with the client to to future workers' compensation claims against B for other firm For a client conflict waiver to be valid, a lawyer must con­ clients, even during the current representation. sult with the client about the nature of the conflict, communi­ ABA Formal Ethics Op. 93-372 recognizes such waivers cating enough information for the client truly to appreciate may be valid if the particular conflict is contemplated with the material and reasonably foreseeableways that the interests sufficient clarity so chat consent can reasonably be viewed as of the client could be adversely impacted by the waiver. The having been fully informed when given. Comment 22 to the Restatement of Law Governing Lawyers, § 122, Comment c(i) 2002 ABA Model Rule 1.7 states that "the more comprehen­ explains in derail what information should be discussed, sive the explanation of the types of future representations that which will vary depending upon the nature of the risks might arise and the actual and reasonably foreseeable adverse involved. For multiple client situations, examples include: consequences of those representations, the greater likelihood • the interests of the lawyer and other client giving rise to that the client will have the requisite understanding." The the conflict; Restatement of Law Governing Lawyers § 122, Comment • contingent, optional, and tactical considerations and d states that the client should possess sophistication in the alternative courses of action foreclosed or made less matter in question and have the opportunity receive advice available by the conflict; ■ to from an independent lawyer. • information that will have to be revealed ro obtain the consent of the other client or that cannot be kept About theAut hors confidential; Sheila Reynolds is a Law professor at Washburn Un iversity • reservations a disinterested lawyer would have if that School of Law, where she teaches Professional Responsibility, Legal lawyer were representing only the client being advised;r and Ma lpractice Seminar, and Law Clinic. She serves • the fact that the lawyer will have to withdraw f om repre­ on the KEA Legal EthicsAdvisor y Co mmittee, the senting all clients if consent is later revoked because the 6 KEA 's Ethics 2000 Task Fo rce, and the judicial risks become too great. Council'sfor ms committee. She co-authored two For former client conflicts, the former client should be chapters of the KEA 's "L ega l Ethics Ha ndbook" made aware that: (1996 and Supp. 2001) and the chapter on • the consent will allow the lawyer to proceed adversely to Ethical Co nsiderations in Representing an the formerclient, Impaired Client fo r the KEA "L ong- Term Ca re Ha ndbook" • the fact that the lawyer possesses the former client's (1999 and Supp. 2001). confidential information and what measures may be taken to protect it, and

FOOTNOTES which the client's interests are materially adverse to a former client. Thus, a 1. KRPC 1.7(a )(l) and (6)(1). lawyer cannot simply withdraw from representing one client (who then becomes 2. ln re Nelson, 278 Kan. 506, 509, 102 P.3d 1140, 1143 (2004). a former client) and continue to represent the other client in the same matter. 3. KRPC 1.7, Comment tided "Conflicts in Litigation." 7. The ABA 2002 amendments to the Model Rules of Professional 4. Restatement of Law Governing Lawyers, § 122, Comment g(iv), Conduct require that conflictwaivers be in writing. The Kansas Bar Illustration 11. Association Board of Governorshas recommended rhis change be adopted by 5. Id. , [Rule 1.7(a)] prohibits representation of opposing parries in rhe Kansas Supreme Court. litigation. 8. Richard W. Painter, Advance Wa ive1, of Conflicts, 13 GEO. J. OF LEGAL 6. KRPC 1.9 prohibits representation of a client in the same matter with ETHICS 289 (2000).

12 - JUNE 2005 THE JOURNAL OF THEKAN SA S BAR ASSOCIATION Members in theNews

CHANGING POSITIONS Richard S. Schoenfeldand Scott E. MISCELLANEOUS ty Lindsay D. Aaron has joined Pearman and Taddikenhave joined Newbery, Ungerer Byron Beck, Kansas Ci , Mo., was selected Galamba LC., Overland Parle and Hickert LLP,Topeka as a recipient of the Kansas City Heath Anderson, Jana Croft, Timothy James C. Sloan has joined the Coalition Metropolitan Bar Association's Robert C. Larigan, Jacob Lowry, Matthew Wr ight, Against Big Trucks, Alexandria, Va. WelchVo lunteer Project Award. and Judy Yi have joined Polsinelli Shalton Jeremey A. Southall has joined Brooke Bioff Finucane Coffey Holland and Day Welte and Suelchaus P.C.,Kansas City, Corp., Shawnee. LLP, Kansas City, Mo., has merged with Mo., as associates. Joanne Joiner has Jacob W. Stauffer has joined Husch and Atlanta-based Fisher and Phillips LLP. joined the firm as of counsel. Eppenberger LLC, Kansas City, Mo. Michael J. Davis, Lawrence, has been Richard F. Chatfield-Taylorhas joined Kyle Steadman has joined Foulston Siefkin named interim dean of the University of Chevron USA Inc., Lenexa. LLP,To peka, as special counsel. Kansas School of Law. Dollie LeAnna Cramer has joined the Jerrod Westfahl has joined Arthur-Green Nola Tedesco Foulston, Wichita, has been Kansas Department of Social and LLP,Manha ttan, as an associate. accepted as an associate member of the Rehabilitation Services, Hutchinson. John Withee has joined Krigel and Krigel American Academy of Forensic Sciences. Emily Donaldson has joined Stevens and P.C.,Kansas City, Mo. Joni Franklin-Breitenbach, Wichita has Brand LLP, Lawrence. Krisyn L. Wo od has joined Koch-Glicsch been appointed by Gov. Kathleen Sebelius Gary T. Eastman has joined Corporate LP., Wichita. to serve on the Kansas Lottery Counsel Group LLP, Kansas City, Mo. Commission fora four-year term. Amy D. Ecker has been named a member CHANGING PLACES Kenneth H. Jack, Goddard, was selected to of Cozen O'Connor, Wichita. Bottaro, Morefield and Kubin L.C. has participate in the 2005 class of Leadership Susan K. Ellis has joined Foulston Conlee moved to 1001 E. l0lsr Terrace, See. 120, Kansas. Schmidt and Emerson, Wichita, as of Kansas City, MO 64112. Hon. John K. Pearson of Hinkle Elkouri counsel. Foulston Siefkin LLP has moved to Law Firm LLC in Wichita has been Neely L. Fedde has joined Shook, Hardy Commerce Bank Center, 1551 N. appointed to the bankruptcy mediation and Bacon LLP, Overland Parle Courtney Waterfront Parkway, Ste. 100, Wichita, KS panels in Delaware and the Southern Hueser, Clinton Newton, and Wi lliam 67206. District of New York. ty Yo der have become partners of the firm in The Law Officeof Autumn Fox P.A.has Christopher D. Sanders, Garden Ci , has ty the Kansas Ci , Mo., office,and Matthew moved to 203 N. Broadway, Abilene, KS been appointed district magistrate judge Wiltanger has become a partner at the 674 10. for Finney County, 25th Judicial District. firm's Overland Park office. Joe Little has formedJoe Little P.A., P.O. Michael K. Sears, Overland Park, has been John E. Foulston has joined Case, Moses, Box 158, 930 N. Washington, Auburn,KS named the 2006 Annual Director to the Zimmerman and Wilson, Wichita, as 66402. Kansas Bankers Association Tr ust Division special counsel. Shawna R. Miller has formedMiller Law Board. Steven L. Freije has joined Latham, Scali, Office LLC, 316 Pennsylvania Ave., P.O. Wagner, Steele and Lehman, Tulsa, Okla. Box 107, Holton, KS 66436. Correction: Evan Corman has retired fromthe ey Bradl L. Hemsley has joined Frieden, Pendelton and Sutton LLC has a new practice oflaw and withdrawn from the firm Haynes and Forbes, Topeka, as an associate. address, 1031 Vermont Sc., See. B, of Corman and BarefieldLaw Offices. The Robert E. Hiatt has joined the office of the Lawrence, KS 66044. BarefieldLaw Offices are still located at 205 Kansas Insurance Commissioner, To peka. Corlin J. Pratt and TerryL. Unruh have W Second Sc., Minneapolis, KS 67467. In the Casey Housley has been named a partner formed Unruh and Pratt, 100 N. Broadway, April issue of the journal, it was incorrectly with Armstrong Te asdale LLP,Kansas City, Ste. 510, Wichita, KS 67202. reported char the firm had moved. Mo. Hon. Jon S. Willard and the Municipal Kayden B. Howard has joined Kansas City Court of Olathe have moved to 1200 S. Editors Note: It is the poli cy of The Journal of SouthernRailroad, Kansas City, Mo. Harrison, Olathe, KS 66061. the Kansas Bar Association to include onlyper­ Mandi R. Hunter has joined Marin, Leigh, sons who arem embe11o ft he Kansas Bar Laws and Fritzlen P.C.,Kansas City, Mo. Association in its Members in the News section. Salvatore D. lntagliata has joined Maughan Hitchcock LC., which is now "Jest Is For All" by Arnie Glick Maughan Hitchcock Incagliaca LC., Wichita. E Michael Kirkham and John Bordeau have 8 c been elected partners at Sanders Conkrigh c V, E and Warren LLP, Kansas City, Mo. @)"" Kurt D. Maahs has joined Morrow, Willnauer .,! rnC and Klosterman LLC, Omaha, Neb. co Stacy L. Meley has joined Inergy LP., Kansas City, Mo. Blake H. Reeves has joined Shughart Thomson and Kilroy PC., Kansas City, Mo. Ronald S. Ribaudo has joined the Missouri AttorneyGene ral's Office,Crimi nal Appeals, Jefferson City, Mo. Ruth A. Ritthaler has joined the Kansas "If you ask me, someone should bring a products Attorney General's Office,To peka. liability case against the manufacturer of that cheese dispenser!"

JUNE 2005 - 13

THE JOURNA L OF THEKANS AS BAR ASSOCIA TION LAw STUDENTS' CORNER

Top 10 Things to Possibly, Maybe, or Perhaps Consider Whilein LawSc hool

By Jerry Wal lentine, Universityo f Kansas School of Law 10. Construct a three-yearpl an for your courses. 3. Be wary of using an outline from a previous student. Throughout my coursework, my favorite class has been Outlines can be misleading for a number of reasons: human Advanced Litigation. While a friend desired to rake the class, error, timeliness, and relevance. First, just because the outline he was unable to because he had not taken the prerequisite is coming from a previous student does not mean that the stu­ classes. Do nor let this happen to you. Decide early on the area dent fu lly grasped the material or was able to convey his of law that you prefer to focus on. In fact, wise planning could understanding in the outline. Second, the law changes and old help you graduate from law school with a certificate of spe­ outlines could not possibly consider recent changes. Finally, cialty in a particular area. certain outlines may not be relevant. You are not just ralcing "Contracts." Rather, you are taking "Contracts with Professor 9. Be flexible when planning your courses. So-and-So." Compose your own; the construction process is Even the best-laid plans can go awry. The list of potential crucial f�n· true learning. obstacles is quire lengthy: the class is already full, the time con­ flicts with other required courses, the course is not offered, 2. Keep perspective - laws chool is important. and any number of other impediments. Lesson learned: be With Privilege Comes Responsibility. Yes, I got this concept flexible and have alternative plans. Besides, law school is a from the Spider-Man movies. Hollywood blockbuster hits are great rime to experiment with different legal subjects and see not typically the greatest resource for truth, but this line is where your interests lie. To provide for flexibility, get all true. If you are planning or are currently attending law school, requirement classes out of the way as soon as possible. you are privileged. Many people would love to have the same opportunity. For me, law school seemed like a distant dream. I 8. Study in a group. already had an established career with a wife and three Having a group of pee1's to keep you accountable in your children. Fortunately, the doors of opportunity opened, and I studies is invaluable. Ir is helpful to have a group in which you seized the chance to enter law school, an exciting and can regularly discuss any class topics that are still eluding you. challenging phase in my journey. Once you begin, enjoy the In addition, long after graduation, these same people will serve journey. Instead of falling into the trap of dreading class, as resources for you. remember how fortunate you are and rake advantage of the 7. Study by yourself. opportunity to study and train for a legal career. Law school Whenever I tried to study with my friends, we wasted too will open up various doors, so give these three years your best much time discussing issu. es off- topic. When we did discuss shot. Your GPA will largely determine where you can get that the class subject, it was · often over issues that most of the first job upon graduation. Many firms are concerned with group understood bur with which one individual was strug­ your class rank. Therefore, you need to perform. gling. This seemed like an ineffi cient way study. Besides, to 1. Keep perspective - laws chool isn't everything. you will be ralcing the rest on your own, so you might as well Even though you are in law school, be a holistic person. Do study on your own. nor neglect your social, spiritual, mental, and physical needs. 6. Use commercial materials. Use law school to learn and develop, but do not allow it to Did I just say that? Yes! Think this one through with me. consume you. Enjoy the experience ! ■ You could spend three hours reading cases and still be left con­ fused. On the other hand, you could spend one hour reading a About the Author commercial synoptic exposition about the case that directly Je rry Wa llentine is a third-year La w explains what you need to understand. student at the Un iversity of Kansas School of Law and appreciates the opportunity to 5. Don't overuse commercial materials. experience the challenge of Lawsc hool. He While the commercial outlines may help you understand has enjoyed being a pastor forthe past 10 some things, there is no replacement for tedious study of the years. actual text and cases. This will train your mind to think like a He has three bright, young children, ages lawyer and come conclusions like a judge. If you are simply to 2, 5, and 6 He says, "Law school would told what to think, your mind is not being challenged and not be even remotelypossible ifit wasn't for developed. Learn to think critically by forcing yourself to Christ's blessing and my amazing wife who undergo the rigorous process of analyzing legal documents. In has stren hened me. " addition, some commercial materials may simply add more to gt your already encompassing study load. 4. Get an outline from a 2L or 3L. During my first year at law school, I did not use anybody else's outline. However, the next year, I referred to other peo­ ple's outlines to develop my own. This vastly improved my understanding of the material, as I was able to follow along in the outline as I listened to the professor's lecture. 14 - JUNE 2005 THEJO URNAL OF THEKANSA S BAR ASSOCIATION BoARD OF GovERNORS' BRI EFING APRIL 22, 2005 - LEAVENWORTH, KANSAS KANSAS BAR ASSOCIATION

The Board of Governors of the Kansas Bar Association held its recent regularly scheduled business meeting on Friday, April 22, at the Leavenworth Riverfront Community Center in Leavenworth. At the meeting, the Board discussed and/or took action on the following items: President Michael Crow called the meeting co order and welcomed all board members. The minutes of the previous meeting were accepted, as was the treasurer's report, which included a review of last year's audited financial statements.

• The Office of Judicial Administration announced a new court rule that would require the use of special cover sheets forco urt filings. Additional details regarding this rule can be found in this month's journal on Page 40. • The director of the Kansas Lawyers Assistance Program (KALAP) briefed the board regarding its mission of service to Kansas attorneys and law students who are having personal difficulties, which adversely affect their practice of law. These difficulties may include physical or mental illness, substance abuse, or emotional distress. To contact KALAP, please call (888) 342-9080 or visit their Web site at www.kalap.com. • President Crow advised chat the Kansas Supreme Court had not yet responded co the mandatory malpractice disclosure proposal and Unauthorized Practice of Law Committee recommendations.

• President Crow reviewed procedures for chis year's Board of Governors elections and thanked the candidates fortheir willingness to serve. • The board approved a request from the KBA Legal Assistants Committee to change their name co the Paralegal Committee.

• There was some discussion regarding the recent attacks on the judiciary in Kansas. President Crow announced that he would soon unveil a formal commission to study ways to maintain and improve judicial independence and co formulate ways co combat unwarranted attacks on the judiciary. The commission will be asked to investigate the recent decline in civility and respect coward the justice system and to respond with seeps to restore traditional esteem and confidence by all elements of society. • The board approved the recommendations of the Awards Committee for th is year's KBA Awards. Information regarding the recipients will appear in the July/ August issue of the journal!

• The board approved a one-year lease proposal fromthe Kansas Bar Foundation for the Kansas Law Center.

• Legislative Counsel Jim Clark gave a legislative update. He was pleased co report chat the KBA's efforts lobbying against a bill chat would require Senate confirmation of Kansas Supreme Court Justices and a House version that would provide for a direct election were working and it did not appear either would be brought to their respective floors for a vote. Another legislative effort opposing Senate Bill 102 chat would repeal the collateral rule was also successful. Members are always encouraged co visit the KBA Web site at www.ksbar.org co view official legislative positions of the Bar as well as provide their input. • It was noted that preparations were still being made for this year's KBA Annual Meeting, which will be held June 9- 11 in Vail, Colo. The board was advised chat the KBF Fellows Dinner had been moved co September.

• The Board received an update on membership, including renewal timelines and recruitment strategies. Overall, membership was higher when compared co the previous year.

• Young Lawyer Section President Eric Kraft briefed the board on various young lawyer initiatives, including a proposal co establish a KBA YLS Justice Gernon Memorial Scholarship Award. The board felt chis was a wonderful idea and pledged their support. With no further business, the meeting was adjourned.The next meeting of the board was scheduled for Saturday, June 11, in Vail, Colo. To receive a complete copy of these minutes, or if any member should have any questions, please con­ tact Jeffrey Alderman at (785) 234-5696 or via e-mail at [email protected].

THEJO URNA L OF THEKANSA S BAR ASSOCIATION JUNE 2005 - 15 KBAWe lcomes new Attorneys to the Kansas Bar

n April 29, the and Judge Sam A. Kansas Bar Crow, senior district OAssociation judge for the United hosted a champagne States District Court reception to honor 150 for the District of new attorneys following Kansas. the spring swearing-in After Chief Justice ceremony at the Topeka McFarland addressed Performing Arts Center. the group, the full KBA President Mike Court stood and con­ Crow congratulated the gratulated the new new attorneys on their (1-r) Kansas Supreme Court justices Carol A. Beier, Lawton R. Nuss, and Donald L. Allegrucci; Chief attorneys individually. achievement and wel­ Justice Kay McFarland; Senior Judge for the District of Kansas Sam A. Crow; and justices Robert E. The KEA-sponsored comed them to the legal Davis and Marla J. Lucker! looked on as the roll of new admittees was read. reception was held profession. immediately following "I am pleased to see such a fine group of new attorneys who the ceremony, and new attorneys were able to visit with will be practicing in Kansas," Crow said. "Our state and our members of the Court and representatives of the Kansas, law schools attract the best and brightest lawyers in the nation, Topeka, and Wichita bar associations; the Women Attorneys and I'm honored to be able to extend to each of you a compli­ Association of Topeka, the Kansas Women Attorneys mentary one-year membership to the Kansas Bar Association Association, and the Kansas Trial Lawyers Association. and the KBA Young Lawyers Section." The KBA also sponsored a drawing, and the following new YLSPresident Eric Kraft also welcomed the new attorneys admittees won door prizes: Connie Jo Haden, Basehor, Kan., and encouraged them to actively participate in the section. a "Kansas Legal Research and Reference Guide;" Bradley "The Young Lawyers Section is your passport into the Lane Hemsley, Topeka, a KBA CLE voucher; Karyn Delynn KBA," he said, "and can provide you with innumerable oppor­ Lopez, Kansas City, Mo., a boom box; ■and Brad Allen tunities to network with judges, lawyers, and other profession­ Oliver, Fairview, N.C., a DVD/CD player. als from every part of Kansas and across the United States." Gerald L. Goodell, chairman of the Kansas Board of Law Examiners, called the roll; Carol Green, clerk of the Kansas Supreme Court, administered the Kansas Oath; and Dennis Smarker, deputy clerk of the Federal Court, administered the Federal Oath. Chief Justice Kay McFarland, Kansas Supreme Court, presided with justices Donald L. Allegrucci, Robert E. Davis, Lawton R. Nuss, Marla J. Luckert, and Carol A. Beier; A11 J11depe111/e11t Tru st Co111p11 11y for Generations Unparalleled Competence Uncompromising IntegritlJ Client-Centered Approach

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16- JUNE 2005 THEJO URNA L OF THEKANS AS BAR ASSOCIATION 2005 LegislativeSession Notice of new Legislation Passed By Jim Clark, KBA legislative counsel Substitute HB 2261 hile the discussion of bills is of necessity cursory, was originally a bill amending the it was thought that since the bills are effective July authority to search incident to arrest. The original language W 1, and a few are already in effect, a notice of new was struck and provisions added granting the Supreme legislation passed by the 2005 Legislature would be of some Court authority to admit graduates of the Presidents College benefit to practitioners. School of Law. The bill also requires the Office of Judicial Civil Procedure Administration to implement a policy in each judicial dis­ SB trict regarding who can be present at Child in Need of Care 50 changes statutory references to "Soldiers and Sailors proceedings. Effective July 1. Civil Relief Act" to "Service Members Civil Relief Act." HB 2262 amends K.S.A. 60-206 to add holidays observed EffectiveJuly 1. HB by the Supreme Court to the list of legal holidays for pur­ 2457 was originally a Kansas Judicial Council pro­ poses of computation and extension of time. EffectiveJuly 1. posal to change service of process requirement from "certi­ HB 2320 authorizes the Supreme Court to spend money fied mail" to "return receipt delivery," but was amended in from the State General Fund or from any other special rev­ the Senate to radically change the supersedeas bond require­ enue fund, including donations, to acquire and install a ment. The bill ultimately went to conference committee, replica of the Seal of Justice in the old Supreme Court room which agreed to the following: in the Capitol. Effective July 1. 1. Judgments under $1 million, bond set at the full HB 2478 postpones the schedule foradding Court of amount of judgment. Appeals judges by one year. Effective July 1. 2. Above $1 million, bond set at $1 million plus 25 per­ cent of judgment above $1 million. Criminal Law and Procedure SB 27 3. Appellee may increase bond on showing that appellant places capsule forms of ephedrine and pseu­ is dissipating or diverting assets, but bond may not exceed doephedrine in Schedule V, which requires sale only by phar­ amount of judgment. macists and prohibits sale to a specific customer of more 4. Appellant may get bond reduced for good cause shown. than four packages in a seven-day period. Bill also raises bail EffectiveJul y 1. for meth-related crimes and prohibits local governments Corporations from enacting contradicting or supplemental legislation. SB Effective on publication in the Kansas Register, except for 5 applies the definition in the Uniform Trade Secrets sections 1 and 2, which became effective June 1. Act to all statutory references to trade secrets. Effective July 1. SB SB 37 SB 72 establishes new crimes of trafficking and aggravated is a technical or "trailer" bill to last year's 29, trafficking, related to slavery or involuntary servitude; the which bifurcated the franchise tax into a tax based on equity former a level 2 person felony, the latter a level 1. Bill also or net worth and a separate franchise fee. Bill eliminates amends worthless check statutes to raise monetary threshold extensions of time for filing annual reports and eliminates consistent with those made to theft and other property reporting of residential addresses for officers/directors of cor­ crimes. Effective July 1. porations. Also eliminates reporting of par value and number SB 82 extends the rape shield to any judicial proceeding, of shares. Effective July 1. SB 121 currently limited to the trial. Also adds unlawful voluntary makes technical changes to the Charitable sexual relations to list of crimes to which shield applies. Organizations and Solicitations Act, such as raising the mini­ Effective July 1. mum for filing copy of tax returns and financial statements SB 147 raises the statute of limitations for all crimes that to $500,000. Effective July 1. previously had a limit of two years to fiveyears. Also amends HB 2168 amends the Uniform Commercial Code to sexual exploitation of a child to define the crime to include include demand draftsin definition of check. Effective July 1. each image, rather than each disc or tape. Effective July 1. Courts SB 148 eliminates the five-year look-back period for prior SB 36 gives the Kansas Supreme Court (Supreme Court) DUI convictions, diversions, and even arrests. Effective July 1. authority to order fingerprinting and background checks for HB 2087 establishes new forms of identity theft crimes, bar applicants. (Original bill signed by the governor omitted including vital records identity fraud, except for fake ID giving the Court additional authority to allow Presidents cards used by minors foralcohol or tobacco purchases; and College School of Law graduates to take the bar, corrected in identity fraud, where false information is used to obtain HB 2261.) Effective July 1. identification documents. Identity theftis also broadened to SB 43 was a school finance cleanup bill that was locked in include any benefit, not just economic gain. Raises penalty conference committee until the last day of the session. for all identity crimes to level 8 nonperson fe lony. Effective Although SB 181, which creates a three-judge panel to hear July 1. all cases alleging a violation of Article 6, could only muster HB 2128 amends the expungement statutes by: eliminat­ seven votes in the Senate and died, the language creating a ing expungemenr for all forms of rape and abuse of a child, special judicial procedure for school finance was quickly adding forcible rape and aggravated sexual battery to list of added to the bill, and the Conference Committee Report juvenile offenses that cannot be expunged, and allowing passed out of the Senate 37-2 . It had already passed the greater access to records by state agencies. Effective July 1. House by a substantial margin. Effective July 1. (continued on next page) THE JOURNAL OF THE KANSAS BAR ASSOCIATION JUNE 2005 -17 HB 2180 adds crime of fleeing or eluding to list of inher­ including retired officers authorized to carry firearms; allow­ ently dangerous felonies forinvoluntary manslaughter crime. ing sale of confiscated weapons to federally licensed firearm Effective July 1. dealers; and, lase but not least, prohibiting local governments HB 2380 establishes che Child Rape Protection Ace, from departing from state statutes governing sale, possession, which requires physicians performing abortions on minors transporting, or storage of firearms and declaring chose younger than 14 co preserve fecal tissue and submit to KBI. already in existence to be null and void. Effective July 1. Failure to do so is a class A misdemeanor. Effective July 1. HB 2139 amends fence viewing seacute co require majority HB 2385 eliminates special qualifications for admission of vote of county commissioners for any action, and, if county photographs of stolen property into evidence in criminal boundaries are involved, allows for appointment of addi­ cases. Also adds preliminary breach tests to implied consent tional commissioner. Also allows commissioners co appoint a statute. Effective July 1. designee. Effective July 1. Employment HB 2309 replaces the 150,000 population requirement with list of specific counties for which enforcement of HB 2141 amends definition of probable cause for county resolutions may be pursued on special docket in dis­ employee drug/alcohol testing co include instances where trict court. Effective July 1. employer had written policy in place, testing in the normal course of medical treatment, where worker gave written con­ Litigation sent prior to accident but then refused testing, and where SB 75 grants food producers and processors immunity state or federal law requires pose-accident testing. Effective from civil liability related to obesity or weight gain. Effective July 1. on publication in Kansas Register. HB 2142 redefines accident to establish dace forrepe titive SB 161 grants immunity from liability for governmental, or cumulative injuries. Effective July 1. nonprofir, charitable or social service entities chat employ Family adult or juvenile offenders in community service. Immunity does not include liability for willful, wanton, or intentional SB 7 requires the custodial parent to notify noncustodial conduce or operation of a motor vehicle. Also amends the parent when custodial parent is convicted of child abuse or is Kansas Tort Claims Act by deleting immunity provisions for on the offender registry, or if residing with someone in chose community service work. Effective July 1. categories. Bill creates a rebuccable presumption chat such custody is not in the best interests of che child and chat such Probate events constitute a material change of circumstances for cus­ SB 258 is a Kansas Judicial Council (Council) proposal chat tody modification. Effective July 1. removes legal forms from the statutes and gives the Council HB 2268 establishes the Uniform Interstate Enforcement authority to publish such forms separately. Effective July 1. of Domestic Violence Protection Ace, which allows for regis­ Real Estate tering a foreign or domestic protection order with the local SB 112 attempts to clear up confusion regarding effective sheriff, who is to verifyit s authenticity and request the initi­ dace for attachment of mechanic's liens. Requires chat the ating jurisdiction enter the order into the National Crime material be furnished at the site and, if an earlier lien is paid Information Center and other databases. Effective July 1. in full or discharged, the commencement dace for all ocher Government claimants begins on the dace of the next unsatisfied lien, SB 26 changes the statutory holidays by eliminating without relating back to the earlier lien. Effective July 1. Lincoln's and Washington's birthdays and adding Martin SB 178 exempts service con tracts for residential property Luther King Jr. Day and Presidents Day. Effective July 1. or consumer goods from regulation as insurance. Further, SB 77 makes racial profiling unlawful; requires law bill excludes such contracts from containing provisions enforcement agencies to adopt policy prohibiting profiling, regarding consequential damages unless caused by failure of including annual training, discipline of violators, and public service or repair rendered under the contract; further, such education on the right co file a complaint; requires inde­ contracts may not cover provisions for damages chat would pendent citizen advisory board forcit ies of the firstclass; and otherwise be covered under property or liability insurance. allows for complaint with Kansas Human Rights Effective July 1. Commission as well as a civil action. Effective July 1. SB 215 establishes a commercial real estate broker lien, SB 78 is a comprehensive revision of the open records law. applicable to real estate containing more than four residen­ le extends the life of Kansas Open Records Ace exceptions co tial units. Lien becomes effective when broker procures a July 1, 2010; exempts security measures from subpoena or willing and able purchaser and files notice of lien prior to discovery in any kind of action; shields private records chat actual conveyance of the property. Also applies to leases if are required to be submitted co public agencies; adds a lien is recorded within 90 days of lessee caking possession. "clearly unwarranted invasion of personal privacy" exemp­ Bill also contains provisions regulating title insurance. tion; removes public employee salaries and ocher records Effective July 1. ■ from exemption; and requires open records access to any nonprofit entity chat receives any kind of public funds. Effective July 1. House Sub. SB 195 extensively changes laws dealing with firearms, including: allowing sheriffto seize firearms for delinquent income, drug, sales, or compensating use taxes; requiring firearm training of law enforcement officers,

18- JUNE 2005 THE JOURNAL OF THE KANSA S BA R ASSOCIATION Celebrating 70 years • service to the legal community ... Since 1935, Legal Directories Publishing Company has provided the members of the legal profession with the most accurate reference directory available. That very first paperback was the just the beginning of what hasbecome a nationwide, multivolume staple oflaw offices everywhere. From one volume to five, from 125 pages to more than 2,000, we have grown up alongside the profession itself. In 2005, we will commemorate the 70th Anniversaryof that initial publication, and in the spirit of celebration, we would like to express a heartfelt thanks to all of the men and women who have supported us along the way. Legal Directories Publishing Company. We 're the blue book.

Legal Directories Publishing Company * 9111 Garland Road * Dallas, TX 75218 * 1-800-447-5375 * Fax 214-320-4869 * www.LegalDirectories.com I LEGAL ARTICLE: POWERFUL POWERS ...

I. Introduction

illie Flinn was probably already dead when on Jan. 13, 1988, Martha Flanders obtained five checks in the total amount of $135,79 1.32 in exchange for withdrawing certificates of deposit (CDs), which were owned by Tillie, from TCapitol Federal Savings. Martha was the wife of Tillie's nephew, James, and both Martha and James had been appointed Tillie's attorneysin factunder a power of attorney document that had been "clipped" fromthe June 1, 1987, issue of Family Circle magazine. Not surprisingly, Martha and James spent all the money received for their personal use, and chose Bank IV funds were incapable of being traced. Litigation ens1 ued, resulting in the Kansas Supreme Court decision found in Olathe v. Capitol FederalSavi ngs & Loan Association. The decision in Bank IV absolved Capitol Federal of any liability for Martha cashing Tillie's CDs. The Court determined Capitol Federal had only to review the document to: • compare the signature of the power of attorneywith Tillie's sig­ nature on file; • obtain proper identification of the attorneyin face;and • determine chat the requested transaction was2 within the scope of the power of attorney presenced.

Did Martha and James improperly appropriate Tillie's funds for their own use? Is a durable power of attorney a license to steal? Do third parties have any further duty to investigate proposed aces by attorneys in fact pursuant to a power of attor­ ney under the new power of attorney act? What protections, if any, exist for vulnerable principals? The new Ka nsas Power of Attorney Act (KPOM/Act) helps answer the foregoing questions and many more. The public pol­ icy is declared in the new Act in the fol- lowing provision:

It is the policy of this state that an attorney in fact acting pursuant to the provisions of a power of attorney granting general powers shall be accorded the same rights and privileges with respect to the per­ sonal welfare, property, and business interests of the principal, and if the power of attorney enumerates some express subjects or purposes, with respect to chose subjects or purposes, as if the principal was personally pres­ ent and acting or seeking to ace; and any provision of law and any purported Power{ul Powers Under waiver, consent, or agreement executed

or granted by che principal to the3 contrary the Kansas Power of shall be void and unenforceable. Powers of attorney are commonplace and useful devices. They are used in a variety of contexts from real Attorney Act estate transactions to representation before taxing author­ ities. An important and often utilized use of power of attor­ ney is within the estate planning context in planning for a client's possible incapacity. By Matthew H. Hoy

FOO NOES 2. 250 Kan. 541, 546. I. 250T Kan. 541, 828 P.2d 355 ( 1992). 3. K.S.A. 2004 Supp. 58-654(i).

20 - JUNE 2005 THE JOURNAL OF THEKANSA S BAR ASSOCIATION LEGAL ARTICLE: POWERFUL POWERS ... 1

TheKansas Power of AttorneyAct governs allpowers of attorneyother than health carepowers of attorney.Most often, powers of attorneyare drafted with the intent to be a durablepower of attorney.A durablepower of attorneysurvives theprincip al's subsequent incapacity and even the lateruncerta intyas to whether the principalis dead or alive. The KPOM sets forthseveral general requirements that must be adhered to in orderfor a power of attorneyto be a durablepower of attorney.

In the past, power holders often A. Definitions. shall not terminate if I become encountered difficulty in exercising the Eleven definitions are contained disabled or in the event of later authority granted under a power of attor­ within the KPOAA. Included as a uncertainty as to whether I am ney with third parties. The KPOAA, defined term is "durable power of attor­ dead or alive. which became effective July 1, 2003, was ney. " A durable power of attorney must enacted to update KPOAA statutes and either meet the requirements of the The second clause, while not statuto­ to increase acceptance by third parties of KPOAA or: rily designated as such, appears to be power holders' use of powers of attorney. • be durable under the law where the "magic" language for a "springing" This article will provide an overview of executed; durable power of attorney. the KPOAA and offer practice sugges­ • be durable under the law of the Springing powers of attorney are more tions to Kansas attorneys. Attorneys are place of residence of the princi­ often scrutinized by third parties, and, reminded chat Health Care Powers of pal; or thus, present agents with possibly less Attorney are covered by statutes found at • be durable under the law of a effective powers. Third parties, unless KS.A. 58-625 et. seq. place designated by the docu­ possessed with actual knowledge of the ment, if chat place has a reason­ event, condition or occurrence causing II. General Requirements. authority to "spring" may balk at the able relationship 6to the purpose of the instrument. presentation of a springing power of The KPOAA governs all powers of B. Required language. attorney by an agent. To remedy this, attorney other than health care powers the KPOAA permits the agent to exe­ of attorney. Most often, powers of attor­ Powers of attorney are drafted with cute an affidavit, which allows the per­ ney are drafted with the intent to be a either immediate powers or "springing" son providing the affidavit to rely on 8the durable power of attorney. A durable powers. Springing powers indicate chat effectiveness of the power of attorney. power of attorney survives the princi­ the agent's authority does not "spring" C. Written pal's subsequent incapacity and even the until the occurrence of certain condi­ later uncertainty as to whether the prin­ tions or events (such as a principal's In order for a power of attorneyto be cipal is dead or alive. The KPOAA sets inability to meaningfully comprehend a durable power of attorney, the forth several general requirements that events or communicate) or at some authority granted by the principal must moment measured in time (e.g. , July 1, be in writing and it must be denomi­ must be adhered to in order for a power 9 of attorney to be a durable power of 2006, or "when I arrive in Tibet"). The nated a "durable power of attorney. " attorney. If these requirements are not KPOAA provides the following two Further, the document must be signed met, a written power of attorney is sim­ alternative "magic" clauses, one of which by the principal, dated, and acknowl­ 4 must be included for a document to be a edged in the manner prescribed by ply a nondurable power of attorney. A 7 et. seq. significant problem with a nondurable durable power of attorney: KS.A. 53-5010 1 and amendments power of attorney is chat the authoriza­ thereto. This is a durable power of attor­ D. Recorded power ofattorn ey. tion of an attorney in factto act under a ney and the authority of my nondurable power of attorney is sus­ attorney in fact shall not termi­ The KPOAA provides for recording pended during any period chat the prin­ nate if I become disabled or in an executed power of attorney as an cipal is disabled to the extent chat the the event of later uncertainty as alternative to the common practice of principal is unable to receive or evaluate to whether I am dead or alive; or executing multiple originals. A power information or to communicate deci­ of attorney does not need to be sions with respect to the subject of the recorded, but if recorded in the same 5 This is a durable power of attor­ power of attorney. ney and the authority of my manner as a conveyance of land is attorney in fact, when effective, recorded, a certified copy of the

4. KS.A. 2004 Supp. 58-65 I (f). 8. KS.A. 2004 Supp. 58-652(e) . 5. KS.A. 2004 Supp. 58-657(c) . 9. KS.A. 2004 Supp. 58-652(a)(l). 6. K.S.A. 2004 Supp. 58-65 I (d) . IO. K.S.A. 2004 Supp. 58-652(a)(3) . 7. KS.A. 2004 Supp. 58-652(a)(2) .

JUNE 2005 - 21

THE JOURNAL OF THEKANSA S BAR ASSOCIATION I LEGAL ARTICLE: POWERFULPOWE RS ...

the power of attorney is silent as co factto create, alter, and amend the dis­2 1 whether multiple attorneys in factmust position of the principal's property. act in concert, the KPOM requires Generally, however, an agent has a duty,

the attorne1 7 ys in fact to act absent express authorization in the jointly. power of attorneyotherwise, to exercise a high degree of care in maintaining, B. Powers. withou_ t modification, any estate plan 1. General powers. hat t e principal may have in place, Attorneys make a common � � 111clud111g, but not limited to, benefici­ practice of drafting long lists ary designations, joint tenancy or ten­ of powers specifically author­ ancy by the entirety, trust arrange­ ized to the agent under a _ 22 ments, wills, or codicils. Therefore, if power of attorney. While a principal wishes to include authority practical onsiderations suggest _ � for t e attorney in fact with regard to this practice should continue � _ _ the d1spos1t1on of the principal's prop­ (and enumeration of specific pow­ _ erty, cons1d_ erat1on should be given as ers does not limit the general author­ . to whether additional authorization ity granted, unless otherwise provided should allow the agent to depart from in the power of attorney), the KPOM existing dispositive arrangements. provides that if the proper language is recorded power may be admitted into Addition ] powers available, but only 11 I utilized, an agent shall have the author­ . � ev1.d ence. n the event a power of 1f expressly mcluded, are powers to: ity to take every action and exercise attorney is recorded, any revocation of each power a nondisabled adult may the recorded power of attorney must carry ut thr ugh an agent specifically • nominate a guardian or conser­ also be recorded in the same manner � ? 1 2 authorized with respect to any and all vato� for the principal, including forthe revocation to be effective. 18 matters whatsoever. In order to con­ nammg the attorney in fact; • designate one or more substi­ III. vey such general powers, the power of Attorneys in Fact. attorney" must state in substance that it tute, successor, or additional 1 C attorneys in fact; and Attorneys in fact may be an individ­ grants genera powers ror general pur- 23 poses" or does not by its terms limit the • delegate any or all powers. �al, co�·poration, or other legal entity power to the specific subject or pur­ (111clud11�g, pr�s�mably, limited liability 1 9 The remaining optional powers are poses set out in the instrument. co_mparnes, li!rnted liability pa1rtner­3 discussed below. _ An often discussed problem in crans­ ships, and limited partnerships). The 3. Powers precluded. The KPOM ac ting a principal's affairs under a KPOM does not provide standards or prohibits an attorney in fact from exer­ po e · of attorney is difficulty in mechanisms by which attorneys in fact ': � cising four specificpowers . An attorney ach1ev111g acceptance of authority to act become qualified to act, instead leav­ in facemay not: ing these issues to the power or' attor­ wit_ h financial services companies or 14 government agencies such as the Farm �ey d��um�nt. As a result, if a person • make, amend, or revoke a will 1s not qualified to act as an attorney in Services Administration or Social forthe principal; fact under a power of attorney" such Security Administration. The 2004 • make, modify, or revoke a liv­ person is subject to removal without, amendments to the KPOM permit an ing will declaration, do not resus­ however, limiting either the protections attorney in fact vested with general citate order, or a health care afforded third parties or the duties powers to execute additional powers of power of attorney; owed by the nonqualified attorney in attorney required by any governmental 1 • force the principal to take factto the principal. 5 agency or other legal entity on behalf of the principal, naming such attorney in act!on or r�frain from taking A. Multiple. fact as the attorney in factauth orized to act10n aga111st the principal's The KPOM permits the appointment enter into any transaction with such will; and 2 of more than one attorney in fact. The agency or legal entity. 0 • undertake any actions specifi­ principal may elect to require the attor­ 2. Optional powers. The KPOM cal�y forbidden by the principal neys in fact to act jointly or may provide identifies 13 powers, which, if desired, while not under any disability or 24 for a succession of priority as to the must be included within the power of incapacity. authorization of the named attorneys in 16 attorney. The first six enumerated fact. Not surprisingly, however, where optional powers permit the attorney in

11. K.S.A.2004 Supp. 58-652(c)(2). 1 8. K.S.A. 2004 Supp. 58-654(6). 12. K.S.A. 2004 Supp. 58-652(c)(3). 19. Id. 13. K.S.A. 2004 Supp. 58-651 (a) . 20. Id. 14. K.S.A. 2004 Supp. 58-653(6). 21. K.S.A. 2004 Supp. 58-654(f)(I-6). 1 5.Id. 22. K.S.A. 2004 Supp. 58-656(a). 1 6. K.S.A. 2004 Supp. 58-653(a) . 23. K.S.A. 2004 Supp. 58-654(f)(9), ( 11- 12). 17. Id. 24. K.S.A. 2004 Supp. 58-654(g)(l-4).

22 - JUNE 2005 THEJO URNA L OF THEKANSA S BAR ASSOCIATION LEGAL ARTICLE: POWERFUL POWERS ... 1 4. Powers that survive the principal's Furthermore, absent a written agree­ E. Compensation. death. Interestingly, the KPOM permits ment to ace, acting in one or more The KPOM includes a default rule, three "postmortem" powers, but only if transactions does not obligate an attor­ which, unless the power of attorney expressly enumerated in the power of ney in face co act for the principal in directs otherwise, provides chat an attorney. Despite the principal's death, if subsequent transactions. 32 0 nee an attorney in factis entitled to reasonable expressly authorized an attorney in face attorney in faceel ects to act, chat attor­ compensation for services rendered co may: ney in face muse act in the interest of the principal as attorney in fact.41 the principal and avoid conflicts of • give or withhold consent co interest that impair the ability of 33 IY. Modification/Termination. an autopsy or postmortem exarn­ the attorney in face co so act. The 5 Just as a principal may wish co utilize a inacion,2 KPOM goes even further co reference • make a giftor decline co make a the duties a trustee has co trust benefi­ "springing" power of attorney, a princi­ pal may wish to crafta "sunset" on the gift of the principal's body, and ciaries and imposes the same obliga­ authority of an attorney in face to ace • pay reasonable expen26ses of tions on the attorney in face co the under che power of attorney. The funeral and burial or disposition principal. As a result, an attorney in KPOM permits a power of attorney to of the principal's body. 27 face has a fiduciary obligation co exer­ cise the powers conferred in the best terminate an attorney in face's authority interests of the principal and co avoid upon the occurrence of a future event, C. Titled property. self dealing and conflicts of int eresc.34 condition, or contingency as determined When an attorney in face possesses In addition co those duties discussed in a manner prescribed in the power of che principal's property or manages 42 elsewhere in chis article, an attorney in attorney. Moreover, although a power financial accounts of the principal, the facehas a duty co: of attorney muse be in writing, an attor­ attorney in face is required co keep such ney in face is obligated co follow the property and accounts distinct from all written and instructions and modi­ 1. keep property and accounts oral ocher property and accounts so chat it 35 fications of a principa!.43 separate; is clear such property and accounts As between the principal and the 28 2. invest in accordance with belong co the principal. The segrega­ attorney in fact, a power of attorney is Kansas Uniform Prudent Investor ci on of property required by the modifiedor terminated: Ace and co use special skills on KPOM is satisfied if the attorney in 36 faceholds the principal's property in behalf of principal; any of the following ways: 3. keep in regular contact with the principal, co communicate 1. if the property is held in the with the principal and co obtain name of the principal; and follow the instructions of the 2. if the property is held in the principal;37 and name of the attorney in face as 4. exercise authority with chat attorney in face for the principal; degree of care chat would be or observed by a prudent person 3. if the attorneyin face is a state acting in a fiduciary capacity. 38 or national bank or trust corn- . . pany 111 a nominee name as Attorneys in face may also be provided in K.S.A. 9-1 607, and accountable to court appointed amendments thereto. fiduciaries of the principal, such as a 29 guardian or conservator, or even the D. Duties/obligations. principal's personal representative Unless the attorney in fact has upon the commencement of an estate expressly agreed in writing co act for administration. 39 the principal, the appointed attorney in Finally, the principal, face has no duty co acc. However, if acting individ­ ually, and the attorney in face may the attorney in fact agrees30 in writing co enter into an agreement chat expands ace, that agreement is enforceable with­ or limits these duties and liabilicies.40 out regard to whether there is consider­3 1 ation supporting chat agreemenc.

25. KS.A. 2004 Supp. 58-654(f)(7). 35. K.S.A. 2004 Supp. 58-655. 26. KS.A. 2004 Supp. 58-654(f)(8) . 36. KS.A. 2004 Supp. 58-656(a). 27. K.S.A. 2004 Supp. 58-654(f)(l3) . 37. K.S.A. 2004 Supp. 58-656(6). 28. KS.A. 2004 Supp. 58-655(a) . 38. K.S.A. 2004 Supp. 58-656(a). 29. K.S.A. 2004 Supp. 58-655(6). 39. K.S.A. 2004 Supp. 58-656(c) and (g). 30. Id.KS .A. 2004 Supp. 58-652(d) . 40. KS.A. 2004 Supp. 58-657(f). 32.3 1. Jd. 41. KS.A. 2004 Supp. 58-661. 42. K.S.A. 2004 Supp. 58-656(f). 34.33. Jd.K.S .A. 2004 Supp. 58-656(a) . 43. K.S.A. 2004 Supp. 58-656(e); K.S.A. 2004 Supp. 58-657(a)(2).

THEJO URNAL OF THEKANSA S BA R ASSOCIATION JUNE 2005 - 23 I LEGALARTICLE: POWERFUL POWERS ... g. a. on the date show44 n in the upon the act of filing any not an act taken or proposed to power of attorney; action forannu lment, separate be taken by the attorney in fact, b. when the principal, either maintenance, or divorce if the constitutes a breach of any duty attorney in fact is the principal's or obligation owed to the princi­ orally or in writing, 4terminates 50 the power of attorney; 5 spouse; and pal, including, but not limited c. when the principal's legal h. a power, which is not durable to, the obligation to the principal representative modifies or termi­ is suspended during any period not to modifyor alter the princi­ 5 1 nates the46 power of attorney in of the principal's incapacity. " pal's estate plan or other provi­ writing; sions fordistributions of assets at d. when a written notice of modi­ If an event occurs and merely termi­ death, as provided in subsection fication or termination is filed by nates an attorney in fact's authority to (a) of K.S.A. 2004 Supp. 58-656, the principal or principal's legal act, rather than terminating the power and amendments thereto; representative in the office of the of attorney, and if the power of attorney 5. whether any future event, con­ register of deeds in the county of designates a successor attorney in fact or dition or contingency making the principal's residence or, if the a procedure by which a successor is des­ effective or terminating the author­ principal is a nonresident, in the ignated, then the authority in the power ity conferred in a has occurred; county of the residence of the of attorney shall52 continue and vest in 6. whether the principal is disabled attorney in fact, or in the county the successor. Note, however, the or has been adjudicated disabled; in which is located any property authority is terminated altogether and a 7. whether the principal, the specifically referred to in the successor may not continue to act under principal's legal representative, or 47 power of attorney; the power of attorney if the termination a court has given the attorney in e. on the death of the principal, of the power of attorney results from: fact any instructions or the con­ 1. except to the extent of the post­4 an attorney in fact's failure to tent of any instructions, or mortem powers described above; 8 qualify; whether the attorney in factis fol­ 2. £ when the attorney in fact is not4 an attorney in fact files a peti­ lowing any instructions received; qualifiedto act forthe principal; 9 tion for divorce, annulment, or 8. whether the authority granted separate maintenance ( unless the in a power of attorney has been power of attorney provides other­ modified by the principal, a legal wise); or 53 representative of the principal, or 3. the principal's death. a court; 9. whether the authority of the V. Third Persons. attorney in fact has been termi­ nated, except by an express As a general rule, third parties may provision in the showing the date rely on and contract with an attorney on which the power of attorney in fact vested with general powers. The terminates; ACCIDENT RECONSTRUCTION KPOM has expanded the protections 10. FORENSIC MAPPING whether the power of attor­ enjoyed by third persons originally BLACK BOX DOWNLOADS Bank IV ney, or any modification or described in the case. Under termination thereof, has been the KPOM, in the absence of actual recorded, except as to transac­ VEHICLE MAINTENANCE knowledge, a third person has no duty tions affecting real estate; AND SERVICING to inquire as to the following: 11. whether the principal had FAILURE ANALYSIS 1. The authenticity of a copy of a legal capacity to execute the AIR BRAKES power of attorney furnished by power of attorney at the time the TIRE FAILURES TRUCK ACCIDENTS the principal's attorney in fact or power of attorney was executed; successor; 12. whether, at the time the MOTOR CARRIER SAFETY 2. DRIVERS HOURS OF SERVICE the validity of the designation of principal executed the power of the attorney in factor successor; attorney, the principal was sub­ 3. whether the attorney in fact or jected to duress, undue influence, SECURED STORAGE AVAILABLE successor is qualified to act as an or fraud, or the power of attorney attorney in fact forthe principal; was for any other reason void or 4. the propriety of any act of the voidable, if the appears to be JOHN C. GLENNON, CHTD attorney in fact or successor in regular on its face; the principal's behalf, including, 13. whether the principal is alive; OVERLAND PK, KS 66204 but not limited to, whether or

(913) 383-3856 44. K.S.A. 2004 Supp. 58-657(a)(l). 49. K.S.A. 2004 Supp. 58-657(6)(2). 45. K.S.A. 2004 Supp. 58-657(a)(2). 50. K.S.A. 2004 Supp. 58-657(6)(3). www.j ohncglennon.com 46. Id. 5 1. K.S.A. 2004 Supp. 58-657(c) . 47. K.S.A. 2004 Supp. 58-657(a)(3). 52. K.S.A. 2004 Supp. 58-657(d) . K.S.A. 2004 Supp. 58-657(6)(1). 53. K.S.A. 2004 Supp. 58-657(6). Since 1977 48.

24 - JUNE 2005

THEJO URNAL OF THEKANSA S BAR ASSOCIATION LEGAL ARTICLE: POWERFUL POWERS ··· I 14. whether the principal and agree in writing, as between a principal Where an attorney in fact causes attorney in fact were married at and a third person the authority granted damages by acting in "bad faith," the or subsequent to the time the in a power of attorney terminates upon: attorney in fact is exposed to potential power of attorney was created and damages including both attorneys fees 61 whether an action forannulment, 1. The date specified, if any, in and punitive damages. separate maintenance, or divorce the power of attorney; has been filed by either party; or 2. The date when the third per­ VII.Co urt Actions. 15. the truth or validity of any son acquires actual knowledge of Although the KPOM leaves some facts or statements made in an the death of the principal; or issues open regarding court proceedings affidavit of the attorney in fact or 3. The date when the third person under the act, it does provide instruction successor with regard to the abil­ acquires actual knowledge that the regarding several possible court actions. ity or capacity of the principal, authority granted in the power of A. Accountings. the authority of the attorney in attorney has been susf ended, factor successor under the power modified, or terminated.5 A principal who is not disabled, or a of attorney, the happening of any principal whose capacity has been event or events vesting authority restored may waive or approve (in writ­ in any successor or contingent VI. Principal/ Attorney in Fact ing by a filing with the court) an attor­ attorney in fact, the identity or Relationship. ney in fact's accounting, which, in turn, authority of a person designated permits the court to waive or approve in the power of attorney to If an attorney in factand principal do such accounting without a hearing.62 appoint a substitute or successor not depart fromthe KPOM, an attor­ Additionally, such accounting may be attorney in factor that the prin­ ney in fact must act within the pro­ waived or approved by all creditors and cipal is alive.54 tected "safeha rbors" of the KPOM to distributees of a deceased principal's avoid liability exposure to both the estate whose claims or distributions Therefore, if a third person is entitled principal and the principal's successors have not been fully satisfied.63 Although to rely on the authority of the attorney in interest. an accounting is not required as a in fact under K.S.A. 2004 Supp. 58- A. Good faith. 658, as between the principal and the An attorney in fact is relieved of any (continued on next page) third person, the acts and transactions liability to the principal and the princi­ of the attorney in fact are binding on pal' s successor in interest where an LAWOFF CES OF the principal and the principal's succes­ attorney in fact: � I sors in interest.55 Just in the same way that a principal 1. acts in good faith; T �r�!�H�G��;;�g. and attorney in fact may do so, a prin­ 2. acts in accordance with K.S.A. 300 West Douglas cipal and a third person may enter into 2004 Supp. 58-656; and Wichita, KS 67202 a written agreement setting forth their 3. acts without actual knowledge duties and liabilities as between them­ of the death of the principal or email: [email protected] selves and their successors and, by so without constructive knowledge doing, expand or limit the application that the authority in the power of ♦ 35% Referral Fees 6 of the KPOM.5 Despite the forego­ attorney has been modified or ing, however, the principal and a third terminated. 59 ♦ All Expenses Advanced person are precluded from restricting B. Bad faith. by agreement the right of a principal to act with respect to the third person by An attorney in fact is liable to the ♦ Settlements or Trial an attorney in fact. 57 principal or the principal's successors in Te rmination of a power of attorney interest, or both, where the attorney in All types and sizes presents a difficult issue for third per­ fact does any of the following that ♦ sons to confront when dealing with causes damages: of cases attorneys in factacting under a power 1. acts in bad faith; of attorney. Therefore, the KPOM per­ 2. acts fraudulently or otherwise ♦ mits a principal and a third person to dishonestly; or enter into an agreement in writing 3. acts after receiving notice that establishing how termination of author­ Proven track record the power of attorney has been PERSONAL INJURY ity under a power of attorney is han­ revoked or terminated. 60 of success dled. However, to the extent a principal ♦ and a third person do not otherwise WRONGFUL DEATH

54. KS.A. 2004 Supp. 58-658(a). 59. KS.A. 2004 Supp. 58-657(e) . (316) 264-3333 55. KS.A. 2004 Supp. 58-659(6). 61.60. KS.A. 2004 Supp. 58-657(g) . 56. KS.A. 2004 Supp. 58-659(c). Id. ♦ 57. Id. 62. KS.A. 2004 Supp. 58-662(6). 1-800-266-3345 58. KS.A. 2004 Supp. 58-659(a). 63. ld.

JUNE 2005 - 25 THEJO URNA L OF THE KANSASBAR ASSOCIATION I LEGAL ARTICLE: POWERFUL POWERS ... matter of course, a nondisabled princi­ C. Breach of duty. in fact may disclose matters, the pal, a disabled principal's legal represen­ In addition to other available reme­ cause of action shall not be barred tative, an adult member of the princi­ dies (for instance, those found at until one year after the removal of pal's family, or any person interested in KS.A. 2004 Supp. 58-657(g)) where a the principal's disability or inca­ the welfare of the principal may64 petition principal is a disabled person and the paciry, one year after appointment the court foran accounting. attorney in fact has breached duties, or of a conservator of the principal, there is a reasonable likelihood of a or one year after the death of the B. Disability determinations. 73 breach of duties, the court may issue an · Where there is a dispute whether the principal. 65 order: principal is a disabled person, the 3. Exclusion to limitation of principal, the principal's attorney in 1. that some or all of the author­ actions. The limitations previ­ fact, an adult member of the principal's iry in a durable power of attorney ously described shall not, be suspended or modified, however, apply to an attorney in family, or any person interested in the 2. welfare of the principal may petition that a different attorney in fact fact's fraud, misrepresentation, or the district court in the county where be authorized to exercise some or concealment related to the settle­ the principal is then residing to deter­ all of the powers in the durable ment of any transaction involving power of attorney, and the agency relationship of the mine whether66 the principal is a dis­ 3. 111 abled person. Where a principal is that a new person be68 desig­ attorney 4 fact with the disabled, upon petition by the princi­ nated as attorney in fact. principal.7 pal's legal representative, adult member The court may require the person peti­ of the principal's family, or any inter­ tioning for such orders to file a bond or ested person, the court may: VIII. Existing Powers of Attorney. otherwise indemnify either the attorney in fact or the principal for the expenses, Powers of attorney executed prior to the effective date of the KPOAA 1. Order the attorney in fact to including attorneys6 fees, with respect to 9 remain valid as do the actions taken by exercise or refrainfrom exercising such proceeding. A court may issue attorneys in fact under such powers of authority in a durable power of emergency orders without a hearing but attorney.75 Likewise, the duties of attor­ attorney in a particular manner such emergency0 orders shall not exceed 7 neys in fact under pre-KPOM powers or fora particular purpose; 30 days. Otherwise, immediate rela­ 76 remain. 2. modify the authority of an tives (notably, a term not defined in the KPOM) and other persons known by attorney in fact under a durable IX. Other Issues. power of attorney; the petitioner to be interested in the wel­ 3. declare suspended a power of fare of the principal must7 1 be notified of attorney that is a nondurable the petition and hearing. A. Court actions. power of attorney; The KPOM does not provide clear D. Limitations of actions. instruction as to whether an action 4. terminate a durable power of Attorneys representing attorneys in attorney; brought under the Act is brought pur­ fact should review with their clients the suant to Chapter 59 or Chapter 60. 5. remove the attorney in fact advantages to disclosing transactions and under a durable power of The KPOM defines "court" as the dis­ accountings in order that the statute of trict court, but speaks no furtherto the attorney; limitations "clock" may start ticking. 77 6. confirm the authority of an issue. While reasonable in terpreta­ attorney in fact or a successor tions could be made either way, it is attorney in fact to act under a 1. If disclosed. When matters apparent the KPOM does not conclu­ durable power of attorney; and are disclosed to the principal or, sively answer the matter. Additionally, 7. issue such other orders as the if disabled, to the principal's no instruction is given as to whether a court fi nds will be in the best guardian or conservator, unless case is captioned "In Re __ " or cap­ interest of the disabled principal, an action is commenced within tioned as an adversarial matter. Moreover, no guidance is given as to including appointment of6 a con­ two years after receipt of the 7 the filing fee to be paid in actions servator forthe principal. account or statement,7 2a cause of action shall be barred. brought pursuant to the KPOM. 2. No disclosure. If the principal An action may be brought by any is disabled and has no guardian or person interested8 in the welfare of the conservator to whom the attorney principal.7 While the KPOM defines

64. K.S.A. 2004 Supp. 58-662(a). 70. Id. 65. "J?isabled" means a person who is wholly or partially disabled as 71. Id. defined 111 K.S.A. 77-20 I, and amendments thereto, or a similar law of 72. KS.A. 2004 Supp. 58-662(i). the place having jurisdiction of the person whose capacity is in question. 73. ld. KS.A. 2004 Supp. 58-651 (c). 74. Id. 66. KS.A. 2004 Supp. 58-662(d). 75. ld.K.S. A. 2004 Supp. 58-664. 67. K.S.A. 2004 Supp. 58-662(e) . 76. 68. KS.A. 2004 Supp. 58-662(f). 77. KS.A. 2004 Supp. 58-651(6). 69. Id. 78. K.S.A. 2004 Supp. 58-662(a).

26 - JUNE 2005 THEJO URNAL OF THEKANSA S BAR ASSOCIATION LEGAL ARTICLE: POWERFUL POWERS ··· I 79 the principal's family, it provides no 3. state that by the execution of X. Conclusion. standard of any sort to determine said power of attorney, it is the Attorneys with estate planning clients whether the petitioner is justifiably intention of the parties that said may be tempted to view powers of interested in the welfare of the princi­ act shall constitute the joint attorney drafted for clients as merely pal or merely meddling in a principal's consent required by Article 15, "add-ons" to the substantive dispositive affairs. Finally, the 2004 amendments Section 9 of the Kansas documents such as wills and trusts. to the KPOAA attempt to clarify that Constitution; and However, the KPOAA is further evi­ in an action brought pursuant to the 4. the power of attorney must dence of the increasing use of powers of KPOAA following an attorney in fact's also be executed by both husband 82 attorney and planners should carefully fiduciary misconduct, the court "may and wife in the same instrument. review these documents with their allow payment or enter judgmenc." clients to ensure that powers of attor­ Unfortunately, this amended provisio8n0 As a result, separate powers of attor­ ney are drafted cons is tent with the leaves unanswered what types of judg­ ney executed by a husband and wife in KPOAA, consistent with the client's ments or payments may be allowed. separate documents authorizing the conveyance of the homestead did not wishes, and in a manner which third­ B. Lack of enforcement mechanism. satisfy title standard 6. 12. When ini­ parties will honor. The KPOAA does not contain a pro­ tially enacted, the KPOAA provided Is a power of attorney a license to vision whereby an attorney in fact may where a principal was married, both steal? No, since the KPOAA clearly bring an action to force a third party to spouses could sign the power of attor­ states that agents have liability to their accept an attorney in fact's authority to principals as a fiduciary. However, as ney to satisfy the joint consent require­ Bank IV transact the affairs of the principal. m en t (which is consistent with title the Court in concluded, and Anecdotal evidence continues to grow standard 6. 12 requirements). The 2004 the KPOAA establishes, third-parties indicating many government agencies amendments to the KPOAA specifically have only limited responsibilities to (i.e., Social Security Administration, authorize the attorney in fact to transfer investigate. The KPOAA, moreover, Veterans Administration, Farm Service the principal's homestead, but only if clearly provides wide latitude fo r an Agency) are very reluctant, and may expressly authorized in the power of agent to act on behalf of a principal even refuse altogether, to honor an attorney. Specifically, as amended, the and affords great protection to third agent's authoriry under a power of attor­ statute now permits conveyance of the parties in that regard. Thus, the ulti­ ney. Some states have included with homestead of a married principal where mate responsibility rests with the prin­ power of attorney statutes, enforcement the spouse either signs the power of cipal to select trustworthy attorneys in mechanisms whereby the unreasonable attorney at the time the principal signed fact. As a result, Kansas lawyers refusal by a third party permits the81 the power of attorney or the spouse (whether representing principals, recovery of damages and attorney fees. consents to alienation of the homestead agents, or third parties) should be ■p re­ pared to advise clients accordingly. C. Conveyance of homesteads. by separate instrument, including a sep­ 83 Article 15, Section 9 of the Kansas arate power of attorney. About theAuthor Constitution provides that a homestead As amended, an agent is authorized, shall not be alienated without the joint if the authority is expressly granted in Ma tthew H. Hoy is a partner with consent of husband and wife, when the power of attorney, to give consent Stevens and BrandLLP, Lawrence. His such relation exists. Therefore, where a on behalf of the principal to the sale, practice fo cuses in the areas of estate principal wishes to authorize an agent gift, exchange, or other alienation of planning and admin­ co transfer or convey a homestead the principal's homestead if three con­ istration, real estate, owned with the principal's spouse, close ditions exist: businessplann ing, and attention to detail is required in drafting taxation. He is a the power of attorney document. 1. the principal's spouse has also member of the Ka nsas Previously, the Kansas Title Standards consented to such alienation, and Missouri bar asso­ had established four requirements in 2. the power of attorney specifi­ c ia ti o ns, the KEA order for an agent to convey a home­ cally describes the homestead by Legislative Committee, stead where owned by a marital couple. legal description and street and the KEA and At standard 6. 12, in order for an agent's address, and ABA Real Property, Probate and Tr ust purported conveyance to be accepted, 3. the principal's spouse states Sections. He is the author of the chapter the power of attorney must specifically: such consent to alienation of the "Planning for Real Property, Including homestead in a written docu­ the Residence" for the fourvolume trea­ 1. give the attorney in fact the ment duly acknowledged by the 84 tise "Advising the Elderly Client " pub­ power to sell, transfer, and con­ spouse. lished by Th omson West. Hoy received vey the homestead in question; his bachelor's, Masters of Business 2. give the legal description and Administration, and Ju ris Doctor degrees the street address of the property; from the University of Kansas.

79. K.S.A. 2004 Supp. 58-651(j). 82. Kansas Title Standards (Sixth Ed.) §6.12. 80. SeeK.S. CAL.A. 2004 PROB. Supp. CODE 58 -662(f). FLA. STAT. ANN. 83.84. Jd.K.S. A. 2004 Supp. 58-654(f) (l0). 81. §4306(a); §709.08( 11).

THEJO URNA L OF THEKANSA S BAR ASSOCIATION

JUNE 2005 - 27 Bankruptcy Update: The Good, The Bad, and The Unknown Friday, June 24 Holiday Inn Featuring 8787 Reeder Road t Overland Park, KS he Kansas Bankrup cy 6.0 CLE credit hours, including t 1.0 hour professional responsibility Judges! credit*

*Pending approva l by the Kansas Course Schedule CLE Commission 8:00 a.m. Registration

This is the update you can't afford to miss! 8:30 a.m. Morning Session Topics and Presenters on Bankruptcy Count on the Kansas Bar Association to bring you Law Changes TBA the latest, most up-to-date information available. 11:15a.m. Lunch (on your own) Bankruptcy laws are changing, and you want to be 12:45 p.m. Afternoon Session in the know Topics and Presenters on Bankruptcy Special pricing for Annual Bankruptcy Institute Law Changes TBA attendees! 3:15 p.m. Bankruptcy Law Changes Panel KANSAS BAR Kansas Bankruptcy Judges ASSOCIATION Sign up today to ensure your seat at the 2005 Bankruptcy Update. 4:05 p.m. Adjourn 2005 Bankruptcy Update #3765 Please return this form with your check payable to: Kansas Bar Association, P.O.Box 1037, Topeka, KS 66601 -1037, or call (785) 234-5696 and use your MasterCard, VISA, or American Express. You may fax your completed registra­ tion to (785) 234-3813. To qualify for the early-bird discount, payments must be received by Wednesday June 15, 2005. Name: ______Seminar papers are included in the registration fee. Address, ______April 1st Bankruptcy Institute Attendees Pricing City: ______State: ____ KBA member early-bird registration ...... $149 __ Zip ( +4): Member #: ____ KBA member regular registration ...... $169 __ Phone: ( __ ) ______Nonmember registration ...... $219 Fax: ( __ ) ______E-mail: ______Regular Pricing Charge to: KBA member early-bird registration ...... $159 __ □ MasterCard □ VISA □ AmEx KBA member regular registration ...... $179 N Account #: ______Exp. Date: ___ onmember registration ...... $229 __ Signature: ______KBA members: Register today to receive the early-bird discount! This form may be photocopied and faxed to (785) 234-3813 - Or register online at www.ksbar.org

28 - JUNE 2005

THEJO URNA L OF THE KANSA S BAR ASSOCIATION Kansas Legislative

KANSAS BAR ASSOCIATION & Case Law Institute > Friday, June 17 Overland Park, Topeka, and Wichita Includes the -- > Saturday, June 25 2005 Annua/ Available at 26 Kansas sites and Wa shington, D.C. Surveyo f Law > Thursday, June 30 �-Handbook Topeka Session 1 8:30 a.m. - 12:05 p.m. Session 2 1 :30 p.m. - 5:30 p.m. Registration begins at 8 a.m. for Session 1 and 1 p.m for Session 2

4.0 hours CLE credit, including 1.0 hour professional responsibilitycred it, per session

To register, see form on the inside back cover, call 785-234-5696, or go to www.ksbar.org

Reminders fromthe Kansas CLE Commission ... The Kansas CLE deadline is THURSDAY, JUNE 30, 2005

The Kansas Continuing Legal Education Commission is the officethat tracks and reports your CLE credits to the Kansas Supreme Court forannual compliance. Non-compliance could resultin additionalfe es and even the suspension of your license to practice law. The annual CLE require­ ment in Kansas is 12 hours of CLE credit, including 2 hours of professionalrespo nsibility, by June 30, 2005.

The Kansas CLE Commission 2005 Registration and Annual CLE Remittance Form was mailed to your address of record in late April. If you have misplaced your copy, you may print another format our website: www.kscle.org. The registration form must be returned with payment by July 1, 2005, foryour CLE record to reflectcompl iance. Please note that incomplete formswill be returnedand may result in a delay of processing your annual registration. Fees received in the CLE Commission Officeon or after August 1 of the year in which due shall be accompanied by a $50.00 late payment fee.

Ifyou have enrolled foron line access to your record, you can access your online transcripts and, as of May I, you can check to see that your annual registration feehas been recorded. This informationis available freeof charge, 24 hours a day.

IMPORTANT - DON'T MISS - DATES: June 30 - End of CLE year All CLE hours must be attended by this deadline to avoid further penalties. July I Annual CLE Registrationfee due. July 29 Last day to file2004-05 hours. All paperwork must be received in our officeby 5 p.m. Fax and e-mail submissions will not be accepted.

THEJO URNA L OF THEKANSA S BAR ASSOCIA TION JUNE 2005 - 29 I LEGAL ARTICLE: THEECONOMIC LOSS RULE ...

The Economic Loss Rule in Kansas and its Impact on Construction Cases

By Kevin J. Breer and Justin D. Pulikkan

I. Introduction.

he distinction between contract and tort law is still sometimes blurred, although the application and evolution of the economic loss rule is helping to clarify it. The economic loss rule prevents a plaintiff who has 1 only suffered economic Tlosses from recovering from a defendant based on a tort theory of strict liability or negligence. Instead, the plaintiffis left to rely on contract law for recovery of the losses, usually in the form of breach of contract or breach of express or implied 2 warranty. The economic loss rule, therefore, helps to clarify the boundary between the overlapping theories of tort law and contract law by barring the recovery of purely economic loss in tort.3 Economic loss is a "result of the failure of the product to perform to the level expected by the buyer, which is the core con­ cern of traditional contract law. "4 Economic loss is defined as the "loss of the bargain, repair and replacement cost, loss of profits, and/or goodwill, including diminution in value."5 A cause of action based upon tort does not exist when the plaintiff has not suffered any personal injuries.6

1. East River Steamship Corp. v. Tra nsamerica De!ava! Inc. , 476 U.S. 858, 866-76, 106 S. Cr. 2295, 90 L. Ed. 2d 865 (1986); see also Jay M. Zitter, Strict Products Liability: Recovery forDamage to ProductAlo ne, 72 A.LR. 4th 12, 21-26 (1991). 2. East River, 476 U.S. at 866-67. 3. Sydney R. Barrett Jr., Recovery of Economic Loss in Tort forConstruction Defects: A Critical Analysis, 40 S.C. L. REv. 891, 894 (1989). 4. No rthwest Arkansas MasonryInc. v. Summit Sp eciality Products Inc. 29 Kan. App. 2d at 735, 741 -42; 31 P.3d982 (200 l); see also Redarowicz v. Ohlendorf, 44 1 N .E.2d 324, 327 (Ill. 1982) (noting that a party may not recover under a negligence theory wirhour a showing of harm or damage above and beyond "disappointed expectations" and that the buyer's expectation to enjoy the benefitof his bargain is "nor an interest that torr law rradirionally protects"). 5. Northwest Arkansas Masonry, 29 Kan. App. 2d at 74 1-42; see also Fishman v. Boldt, 666 So.2d 273, 274 (Fla. App. 1996) (describing the economic loss rule as one that prohibits recovery in tort where a product damages itself or there is economic loss, which does nor include personal injury or damage to any property other than the object itself); Kort Constr. Co. v. Deacone 55 Manor Association, 927 S.W.2d 395, 404-05 (Mo. App. E.D. 1996) (plain riffma y nor bring negligence action against contracror where alleged damages are merely defects in workmanship and do nor include personal injury or damage to other property); Sensenbrenner v. Rust, Or!ing Neale, Architects Inc. , 374 S.E.2d 55, 58 (Va. 1988) (defining economic loss as damages for inadequate value, cost of repair and replacement without any claim of personal injury or damage to other property); Charles R. Walker, Moran Sais v. Heathman and the Flo rida Economic Loss Rule: At&tempting to Leash the Tort-Eating Monster, 52 FLA. L. REv. 769, 770 (September 2000) (defining the economic loss rule as one where the purchaser has "disappointed economic expectations, which are protected solely by cont ract law rather than tort law"); W Dudley McCarrer, The Economic Loss Doctrine in Construction Litigation, I 8 CONSTRUCTION LAW 21, 22-23 Quly 1998) (defining the economic loss rule as "prohibiting tort recovery foreco nomic loss, which is the loss resulting from product failure or where there is no personal injury or damage to other property"). 6. Professional Lens Plan Inc. v. Polaris Leasing Corp., 234 Kan. 742, 755, 674 P.2d887 (1984).

30 - JUNE 2005 THEJO URNAL OF THEKANSAS BAR ASSOCIATION LEGAL ARTICLE: THE ECONOMICLOSS RULE ··· I

The economic loss rule can be justifiedfor three reasons: (1) it maintains a "fu ndamental distinction between tort and contract law; " (2) it protects commercial party's freedom to ''allocate economic risk by contract; " and (3) it encourages ''theparties best situated to assess the risk of economic loss" and to ''assume, allocate, or insure against the risk. "

The economic loss rule is based on the Almost every breach of contract tort claims, such as general negligence, premise chat "contract law and the law involves actions or inactions chat but also to bar claims of negligent of warranty, in particular, is better suited can be conceived of as a misrepresentation1 3 and intentional than tort law for dealing with purely negligent or intentional acc. If left misrepresentation. economic7 losses in the commercial unchecked, the incessant tide of This article will address the history of arena." Where the contracting party is tort law would erode and eventu­ the economic loss rule, its application permitted to proceed in core while ally swallow contract law. ... [I]f in a few key Kansas cases, its use in claiming damages, which do not include tort law and contract law are to construction litigation, and its most personal injury or damage to "ocher fulfill their distinctive purposes, recent evolution in Kansas as an appli­ property, " chat party "is in effect rewrit­ they might be distinguished where cation to residential construction cases. ing the agreement to obtain a 8ben efit it is possible to do so. The eco­ chat was not part of the bargain." nomic loss doctrine serves the II. The History and Development The economic loss rule can be justi­ basis forsuch a distinction . ... of the Economic Loss Rule. fied for three reasons: (1) it maintains a "fundamental distinction between tort Allowing a party to a broken A. Seelyv. WhiteMo tor Co . and contract law;" (2) it protects com­ contract co proceed in tort where The economic loss rule is a judicially mercial party's freedom to "allocate eco­ only economic losses are alleged created doctrine, which was first articu­ nomic risk by contract;" and (3) it would eviscerate the most cher­ lated by the California Supre14me Court encourages "the parties best situated to ished virtue of contract law, the in Seely v. White Mo tor Co. in 1965. assess the risk of economic loss" and to power of parties to allocate the 1 1 The plaintiff, Seely, bought a White "assume,9 allocate, or insure against the risks of their own transactions. Motor Co. (White) truck from risk." Southern Truck Sales for use in his The primary motivation behind the Although the economic loss rule has heavy duty hauling business. White economic loss rule is the fear chat hisrorically applied to product liability warranted the truck co be free fr om allowing a party to proceed in tort cases, the rule has been applied in com­ defects in material and workmanship mercial transaction disputes, construc­ would result in10 "crushing useful activity under normal use and service.1 5 by a liabilicy." tion disputes,12 and even professional Unfortunately,16 the truck "bounced vio­ negligence. The rule has been applied len cly." For 11 months, Southern not only to bar a plaintiff frommaking Tr uck Sales made several unsuccessful

7. Daanen JanssenInc. v. Cedar Rapids Inc., 573 N.W.2d 842, 846 the parties' agreement); Graphic Technology Inc. v. Pitney Bowes Inc. , 968 (Wisc. 1998). F. Supp. 602, 608 (D. Kan. 1997) (noting that courts have generally 8. Ka ilin v. &Armst rong, 643 N.W. 2d 132, 144 (Wisc. App. 2002). disallowed negligent misrepresentation claims where the losses are purely 9. Daanen Ja nssen, 573 N.W2d at 846-47; Mt. Lebanon Personal economic); Ritchie Enterprises v. Ho neywell BullInc. , 730 F. Supp. 1041, Care Ho me Inc. v. Hoover Un iversal Inc. , 276 F.3d84 5, 848 (6th Cir. 1052 (D. Kan. 1990) (applying the economic loss rule to bar plaintiff's 2002). & negligent misrepresentation claims); Cooper Power Sy stems Inc. v. Un ion 10. Gunkel v. Renovations Inc. , 797 N.E.2d 841, 844 (Ind. App. 2003) Ca rbine Chems. Plastics Co. Inc. , 123 F.3d67 5, 682 (7th Cir. 1997) (citing FOWLER HARPER LAW OF TORTS, § 25.18A (1986)). (applying the economic loss rule to bar claims for intentional 11. Princess Cruises Inc. v. General Electric Co. , 950 F. Supp. 151, 155 misrepresentation)&; Daitom Inc. v. Pennwalt Corp., 741 F.2d 1569, 1581 (E.D. Va. 1996). (I 0th Cir. 1984) (Kansas courts apply the economic loss rule to prohibit 12. See Prendiville v. Contemporary Ho mes In c., 32 Kan. App. 2d 435, claims fornegl igent misrepresentation). But see No ta Co nstruction Corp. 446, 83 P.3d 1257 (2004) (noting that the economic loss rule is nor v. Keyes Assoc. Inc., 694 N.E.2d 401, 405 (Mass. App. 1998) (refusing to limited to products liability cases); BRW Inc. v. Dufficy Sons Inc., 99 apply the economic loss doctrine to bar claim fo r negligent P.3d 66, 74 (Colo. 2004) (economic loss rule bars claims forneg ligent misrepresentation); Burton v. Linotype Co. , 556 So.2d 1126, 1128 (Fla. architecture design services); A.FM Corp. v. Southern Bell&Tel. Tel. Co. , App. 1989) (economic loss doctrine will not bar claim forfr aud in the 515 So.2d 180, 181 (Fla. 1987) (applying the economic loss rule to inducement where it is an independent tort apart from claim forbr each contracts for services). & of contract). 13. See, e.g., Selzer v. Brunsell Bros. Ltd.,652 N.W2d 806, 836 (Wisc. 14. 403 P.2d 145 (Cal. I 965); see also Digicorp Inc. v. Ameritech Corp., App. 2002) (applying the economic loss rule to negligent 662 N.W.2d 652, 659 (Wisc. 2003) (the economic loss rule is a misrepresentation claim); Filak v. George, 594 S.E.2d 610, 613 (Va. judicially created rule that prevents parties to a contract from seeking 2004) (applying economic loss rule to bar claim forconstruction fraud) ; relief in tort forpu rely economic losses). Bates v. Rosique, 777 So.2d 980, 982 (Fla. App. 2001) (applying 15. Seely, 403 P.2d ar 147-48. economic loss rule to bar plaintiff's fraudulent misrepresentation claim 16. Id. at 147. where the fraudulent misrepresentation was "inseparably embodied" into

JUNE 2005 - 31 THEJO URNA L OF THEKANSA S BAR ASSOCIATION I LEGAL ARTICLE: THE ECONOMICLOSS RULE ... by refusing to award him defined in terms of conditions the $5,466.09 forrep air that create unreasonable risks of to the truck. The harm. He cannot be held forthe California Supreme level of performance of his prod­ Court disagreed and held ucts in the consumer's business that, in the absence of unless he agrees that the product personal injury or physi­ was designed to meet the con­ cal injury to property sumer's demands. A consumer otherthan to the product, should not be charged at the will a purchaser's sole remedy of the manufacturer with bearing rested in breach of war­ the risk of physical injury when ranty, not strict liability he buys a product on the market. or negligence. 23 He can, however, be fa irly In reaching its deci­ charged with the risk that the sion, the Seely Court rec­ product will not match his eco­ ognized the increasing nomic expectations unless the overlap between contract manufacturer agrees that it will. attempts to correct the bouncing prob­ and tort law and analyzed Even in actions fornegligen ce, a lem. One day, when slowing down fora the impact of applying strict liability in manufacturer's liability is limited 24 turn, the brakes did not work and the tort to the facts of the case. The ro damages for physical injuries truck "bounced" and then over­ Court noted that one purpose of strict and there is no recovery for eco­ 2 turned. 1 7 Seely, who was driving the liability is to prevent a manufacturer nomic loss alone. 7 truck, was not injured, but the truck fromdefining the scope of his responsi­ sustained $5,466.09 in damage. 18 bility forharm caused by his prod­ B. EastRiver Steamship Co . v. 2 rp Seely brought suit forbreach of war­ ucts. 5 Under a strict liability analysis, Transamerica DelavalInc. ranty against White and sought dam­ manufacturers are generally liable for Following the landmark decision in ages forthe repair of the truck, the damages of an "unknown and unlim­ Seely, the economic loss rule gained money he had paid on the purchase ited scope." Under a contract analysis, widespread acceptance in a majority of price, and the profitslost in his business however, a manufacturer is liable only jurisdictions.28 The U.S. Supreme 26 because he was unable to make "normal on the basis of the contract. The Court, however, first applied the eco­ use" of the truck. 1 9 The trial court Court stated: nomic loss rule in East River Steamship entered judgment in favor of Seely for Co rp. v. Transamerica DeLavaL Inc. 29 In breach of warranty in the amount of The distinction that the law has EastRiver, Seatrain Shipbuilding Corp. $20,899.84, which was made up of drawn between tort recovery for (Seatrain) contracted with several of its $11,659.44 forpa yment on the pur­ physical injuries and warranty wholly-owned subsidiaries to build four chase price and $9,240.40 for lost prof­ recovery for economic loss is not oil tankers.30 Seatrain then contracted its. 20 The Court, however, denied Seely's arbitrary and does not rest on the with Tr ansamerica to design, manufac­ claim for $5,466.09 for repair of the 'luck' of one plaintiff in having ture, and supervise the installation of truck, characterizing Seely's claim as a an accident causing physical high-pressure turbines for the tankers. product or tort claim.21 Both Seely and inj ury. The distinction rests, As each ship was completed, the White appealed. rather, on an understanding of ships were chartered to various other On appeal, White contended that the the nature of the responsibility a Seatrain subsidiaries. One of the sub­ trial court had erred in awarding Seely manufacturer must undertake in sidiaries was East River Steamship damages for lost profits and for money distributing his products. He can Corp. 31 After the ships began sailing, paid toward the purchase price. The appropriately be held liable for the turbines were discovered to have a CaliforniaSup reme Court affirmed the physical injuries caused by defective component that damaged the 2 trial court's award. 22 Seely, on the other defects by requiring his goods to turbine engine. 3 hand, argued that the trial court erred match a standard of safety

Id. Co ndominium Ass'n Inc. v. Charley Toppino & Sons Inc. , 18.17. Id. at 148. 620 So.2d 1244, Id. 1246 (Fla. 1993) (noting chat a majority of jurisdictions have adopted 19. Id. ac 147-48. the economic loss rule). For a comprehensive list of jurseeisdictions chat 20. Id. at 148. have adopted or Thapepl Ecoiednomi che ceconomic Loss Doctrine: loss doctrine,Saving Contract Christopher �rranty 21. Id. ScaceLaw from D'Ang Drelo,own ing in a Sea of Torts, 22. Id. Product Defects26 U. Causing TOL. L. Commercial REv. 591, Loss 609: 23. Id. at 151-52. See( 19 95Ascen); ordanc Wiylliam of Cont K. ractJones, Over Tort, 24. Id. at 151. 44 U. MIAMI L. REV. 731, 799 25. Id. at 150-51. ( 1990) (Appendix) . 26. at 151-52. 29. Id.476 U.S. 858, 106 S. Cc. 2295, 90 L. Ed. 2d 865 ( 1986). 27. ISeed.a Jot nesl 51. & Laughlin Steel Corp. v. Jo hns-Manville Sales Corp., 30. Id. at 860. 28. 626 31. Id. at 859-60. F.2d 280, 287Seel y(3r d Cir. 1980) (noting chat a large majoritCasay of cClaraourrs 32. at 859-61, 867. following have adopted che economic loss rule);

THE JOURNA L OF THEKANSAS BAR ASSOCIATION 32 - JUNE 2005 LEGAL ARTICLE: THE ECONOMIC LOSS RULE ... 1 East River and Seatrain's other char­ in tort on the grounds chat "a manufac- contract law was well suited to these tering subsidiaries fi led suit against curer in a commercial relationship has kinds of commercial controversies Transamerica, alleging strict liability for no duty under either a negligence or because parties may sec the terms of design defects, the cost of repair, and strict products-liability theory co pre-39 their own agreements and allocate risk44 lost income 33while the cankers were out vent a product from injuring icself." through negotiation and insurance. of service. Initially the plaintiffs In reaching its decision, the Court rea- Finally, the Court found chat a contract alleged claims of breach of contract and soned chat, unlike traditional "property or warranty action is preferred because warranty in addition to the tort claims. damage" cases where the defective prod- it places a limitation on liabili cy, as However, due to the statute of limita­ ucc damages "ocher property," there was opposed to a core action, chat could tions on the contract claims, the plain­ no damage to "ocher property" because subject the4 5 manufacturer to unlimited tiffs proceeded solely on the tort claims. che defective curbine component40 dam- liabilicy. The Court, therefore, Tr ansamerica moved for summary aged only the turbine icself. The affirmed the district court and refused46 judgment, arguing chat it was not liable Court reasoned chat the injury suffered to allow East River to proceed in torc. in tort. 34 The district court granted by plaintiffs - the failure of the prod­ Transamerica's motion and the 3rd U.S. uct to function properly - was the III. Kansas Decisions Applying Circuit Court of Appeals affirmed.35 essence of a contract or warranty action the Economic Loss Rule. Like the Seely Court before it, in which a contracting party41 could seek the U.S. Supreme Court considered the benefit of its bargain. A. Ko ss Construction v. Ca terpil/,ar In c. whether injury to a product itself is the The East River Court provided three In C9 98, the Kansas Court of kind of harm chat should be protected reasons for denying recovery in tort for Appeals adopted the economic loss rule by produces liability or left entirely to the damage co the turbine engines. 47 3 in Ko ss Co nstruction v. Ca terpiLLarIn c. the law of contracts. 6 The East River First, the Court reasoned chat when a The facts in Ko ss are strikingly similar Court also recognized the growing ten­ produce injures only itself, the justifica­ to the facts in East River. In Ko ss, the sion between produces liability and tions for imposing tort duty are weak plaintiff purchased a vibratory roller contract law. The Court noted chat because the traditional tort concern for fromMarcin TractorCo . Inc. The roller products liability law grew out of the product safety is reduced.42 Second, public policy chat people need more damage to the product itself is best protection from dangerous produces understood as a warranty or contract (continued on next page) than is afforded37 by the law of warranty claim because che product has not met and contracts. However, the Court the customer's expectations. In ocher acknowledged chat if products liability words, the customer has received were extended coo far, contract law "insufficient product value or quality, " would 3"drown8 out in the sea of which is the "hallmark" of express and tort[s] . " implied warranties.43 Alternatively, the Ulcimacely, the East River Court customer could reject the product or adopted the approach taken in Seely and revoke its acceptance and sue for breach held chat East River could not recover of contract. The Court believed that

33. Id. at 86 I. skiff, the fishing net, and the spare parts. 520 34. Id. at 861-62. U.S. at 885. The Court did not allow plaintiff 35. Id. at 862. to recover for the loss co ship itself, although 36. Id. at 859, 866. the defectwas limited co the hydraulic system. Id. 37. at 866. Id. at 885. Thus, the Supreme Court broadly 38. Id. applied the "integrated systems approach" chat 39. Id. at 871. it firstall uded to in East River. 40.The Court applied an "integrated 41. Seely, 476 U.S. at 868. systems approach" and stated: "Since all but 42. Id. at 871. the very simplest of machines have 43. /d. at 872 (citing J. White and R. component parts, [a contrary] holding would Summers, UNIFORM COMMERCIAL CODE 406 require a finding of 'property damage' in (2d ed. 1980)). Recovery on a warranty virtually every case where a product damages theory would give the purchasers their repair itself. Such a holding would eliminate the costs and lost profitsand would place them in distinction between warranty and strict the position they would have been in had the products liability. " Id. at 867 (citing No rthern product functioned properly. Seely, 476 U.S. Power Engineering Corp. v. Ca terpillar at 873. Tra ctor Co. , 623 P. 2d 324, 330 (Alaska 44. Id. at 871-73. The Court noted that 1981)).& In Saratoga Fishing Co. v. J.N. commercial transactions gen erally do not Ma rtinac Co. , 520 U.S. 875, 117 S. Ct. involve large disparities in bargaining power, 1783, 138 L. Ed. 2d 76 (1997), the U.S. so a manufacturer could reasonably restrict its Supreme Court& allowed a plaintiffco proceed liability by disclaiming warranties or limiting in tort for damage to "other property" but remedies and in remrnfor a reduced purchase applied the economic loss rule in preventing price. Id. at 872-73. the plaintifffro m seeking damage co a ship 45. Id. at 873-74. that sunk as a result of a defective hydraulic 46. Id. at 875-76. system. The Court held that plaintiff's "other 47. 25 Kan. App. 2d 200, 960 P.2d 255 property" claim was limited co the loss of the (1998).

JUNE 2005 - 33 THEJO URNAL OF THEKAN SA S BAR ASSOCIATION I LEGAL ARTICLE: THE ECONOMICLOSS RULE ... B. Jordanv. Case Corporation. degree of risk, are too indeterminate co In Jordan v. Case Co rporation, the enable man ufaccur­ Kansas Court of Appeals extended the ers easily to structure economic loss doctrine to include con­ 6 their business behav­ sumer purchases. 5 The facts in Jo rdanare ior. Nor do we find similar to the facts in Koss. Jordan pur­ persuasive a distinc­ chased a Case combine with a Cummins tion chat rests on the engine from a dealer. The Cummins manner in which the engine was defective and caught fire. product is injured. The combine was destroyed along with We realize chat the Jordan's unharvested wheac.57 Jordan damage may be brought an action against Case and qualitative, occur­ sought to recover forthe damage to the ring through grad­ combine (but not for damages for the ual deterioration unharvested crops) based on claims of or internal breakage. implied warranty, strict liability, negli­ Or it may be ca­ gence, and res ip sa !oquitur. The trial lamitous. [Citations court granted summary judgment in omitted.] Bue either favor of Case based on the Court of was manufactured by Caterpillar Inc. A way, since by definition Appeals decision in Ko ss. year after the purchase, the roller no person or ocher property is On appeal, Jordan attempted to dis­ tinguish Ko ssand argued that the engine caught fire during a highway £8roject damaged, the resulting loss is and was significantly damaged. Koss purely economic. Even when the was not a component part of the com­ alleged that the fire was caused by harm to the product itself occurs bine. The Jorda n court disagreed and defective hydraulic hoses. Koss brought through an abrupt, accident-like held chat the Cummins engine was not suit against Martin Tr actor and event, the resulting loss due to "other property," but was part of the 58 Caterpillar forthe damage to the roller, repair costs, decreased value, and combine. Jordan also argued the eco­ alleging claims based on strict liability, lost profits is essentially the nomic loss rule was only applicable to negligence, and implied warranty of failure of the purchaser to "commercial buyers of defective goods." merchantability. 49 receive the benefit of its The Court of Appeals was not swayed The district court dismissed the neg­ bargain - traditionally the core by the argument and found the policy ligence and strict liability claims against concern of contract!a w. 53 decisions in East River chat focus on Caterpillar. 50 On appeal, Koss argued "commercial buyers" ap ly equally in fl9 chat the district court had erred and In an attempt to avoid application of consumer transactions. The Jordan chat damages to a defective product are the economic loss rule, Koss character­ court, therefore, affirmed the district recoverable under negligence or strict ized the damage to the roller as injury to court's decision granting summary judg­ liability theories. The Kansas Court of "ocher property." Koss alleged chat the ment in favor of Case. Appeals adopted the economic loss defective product was the hydraulic rule, noting that a majority of jurisdic­ hoses and sought recovery for damages IY. Application of the Economic tions had adopted the rule.5 1 Like the to "ocher" parts of the roller because Loss Rule to Construction 54 courts in Seely and East River before it, they were "ocher property. " The Koss Cases. the Koss court held chat a purchaser of court rejected such a characterization defective goods may not bring suit in and applied an "integrated systems In his article on the economic loss tort where the only injury consists of approach," referring to East River's rule in construction litigation, Sydney damage to the product icself.52 observation chat most simple machines Barrett Jr. discussed the rule, stating: The Ko ss court stated: had component parts and where one defective part caused damage to another Decisions upholding the eco­ The intermediate pos1t1ons, part within the same product, it was not nomic loss rule in construction 55 which essentially turn on the damage to "ocher property. " claims recognize chat 'the right of

48. Id. at 205-06. Inc. , 276 F.3d 845, 848 (6th Cir. 2002) (noting chat a majority of 49. Id. jurisdictions have applied the economic loss rule to both business and 50. Id. at 206-07. consumer purchases). 51. Id. at 207. 57. Jordan, 26 Kan. App. 2d at 743-44. 52. Id. 58. Id.at 744. 53. Id. at 205 (emphasis added). 59. General policies in support of applying the economic loss rule in 54. Id. at 207. Koss were: "(a) le encourages the party best situated to assess the risk of 55. Id. economic loss to insure against ic; (b) it maintains a distinction between 56. 26 Kan. App. 2d 742, 744, 993 P.2d 650 (1999); see also State tort and conrracc law; and (c ic rocects a party's freedom to allocate _ ], J Fa rm Mut. Auto Ins. Co. v. Ford Motor Co., 592 N.W.2d 201, 205 economic nsks by contract. I. . at 744; see also Selzer v. Brunsell (Wisc. 1999) (noting that the economic loss rule applies to consumer Brothers, Ltd. , 652 N.W.2d 806, 831 (Wisc. Cc. App. 2002) (noting transactions); Mt. Lebanon Personal Ca re Ho me Inc. v. Hoover Un iversal chat the economic loss rule applies to consumer transactions).

34 - JUNE 2005 THE JOURNAL OF THE KANSA S BAR ASSOCIATION LEGAL ARTICLE: THE ECONOMICLOSS RULE... 1 the parties to make their own bar­ that were less than what was bar­ for physical injuries and warranty gain as to economic risk is gained for. Theco mplained of eco­ recovery for economic loss' rests impaired by extending a tort duty nomic losses are not reco62 verable on an understanding of the nature to avoid economic harm to oth­ under a negligence theory. of the responsibility a manufac­ ers.' The members of the con­ turer must undertake in distribut­ struction industry, perhaps more In Casa Clara Condominium ing his products. He can appropri­ than any other business, depend Associatio6n3 Inc. v. Charley To pp ino & ately be held liable for physical upon 'contracts and contract law Sons lnc., the Florida Supreme Court injuries caused by defects by to protect their economic expec­ considered whether a condominium requiring his goods to match a tation.' The feescharged by archi­ association could recover economic standard of safety defined in terms tects, engineers, contractors, losses from a concrete supplier throu h a of conditions that create unreason­ 6 � developers, and vendors are set in claim for negligent construction. In able risks of harm. He cannot be relation to their liability exposure, Casa Clara, Charley Toppino & Sons held for the level of performance which is controlled in turn by provided concrete for several construc­ of his products in the consumer's their contracts. To the extent that tion projects, including the plaintiff's business unless he agrees that the tort law imposes duties beyond or condominiums. Because some of the product was designed to meet the contrary to those contractual concrete contained a high amount of consumer's demands. [Citation arrangements, the party must salt, the reinforcing steel that was omitted.] An individual consumer, either increase its fee to cover the inserted into the concrete rusted, caus­ on the other hand, should not be added risk or choose not to pro­ ing some of the concrete co crack and charged at the will of the manufac­ 60 6 vide the services at all. break. 5 The condominium association turer with bearing the risk of phys­ brought suit against Toppino alleging ical injury when he buys a product The economic loss rule has been con­ breach of implied warranty, products lia­ on the market. He can, however, sistently applied in a wide variety of bility, negligence, and violation of a be fairly charged with the risk that construction cases in other61 states. In building code. The circuit court dis­ the product will not match his Redarowicz v. Ohlendof, the Illinois missed all of the claims against Toppino. economic expectations unless the67 Supreme Court considered whether a On appeal, the district court applied manufacturer agrees that it will. homebuyer's claim against the builder the economic loss rule and held chat con­ could be brought in tort or whether it dominium association could not bring In Sensenbrenner v. Rust, Orling & lay in contract. In Redarowicz, the suit against Toppino in tort because its Neale, Architects In c., 68 the Virginia plaintiffhomeow ner sued the builder claims were barred by the rule where no Supreme Court also addressed whether under several theories, including negli­ "other property" was66 damaged and no a plaintiff-home buyer could bring an gence, for the cost of repairing certain person was injured. defects in che home. The Illinois The Florida Supreme Supreme Court held that the home­ Court affirmed and held owner could not recover in tort for chat the association's tort solely economic losses resulting from claims were, likewise, the homebuilder's alleged negligence. barred by the economic In denying the claim fornegligent con­ loss rule, stating: struction, the Court stated: Plaintiffs find a tort The plaintiffis seeking damages remedy attractive for the cost of replacement and because it often per­ repair of the defective chimney, mits the recovery of adjoining wall and patio. While greater damages than the commercial expectations of an acnon on a contract the buyer have not been met by and may avoid the the builder, the only danger to conditions of the con­ the plaintiffis that he will be tract. [Citation omit­ forced co incur additional ted.] The distinction expenses for living conditions between 'tort recovery

60. The Center Holds: The Continuing Role of the Economic Loss Rule Illinois Supreme Court held that a plaintiff-buyer of a condominium and Construction Litigation, Sydney R. Barrett Jr., 11 CONSTRUCTION could only seek damages under a theory of contract, where the plaintiff­ LAW 3 (April 1991) (emphasis added). buyer did not sustain any personal injury and the losses were solely 61. 441 N .E.2d 324 (Ill. 1982). economic. Id. 62. Id. at 327 (emphasis added). Likewise, the Illinois Supreme Court 63. 620 So.2d 1244 (Fla. 1993). in Foxcroft Townhome OwnersAss'n v. Hoffinan Rosner Corporation, 449 64. Id. at 1245. N.E.2d 125 (111. 1983), held that a plaintiffcould not seek damages for 65. Id. negligent construction where the plaintiffalleg ed that the builder failed 66. Id. to construct their condominium in a workmanlike manner, because the 67. 620 So.2d at 1246. damages sought were merely for the diminished value of the property 68. 374 S.E.2d 55 (Va. 1988). and the cost of repairing the construction defects. Id. at 127. The

JUNE 2005 - 35 THE JOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: THEECONOMIC LOSS RULE ... plaintiffs could not recover in [citations omitted] . The architect tort for their "disappointed and the pool contractor assumed economic expectations." In no such duty to the plaintiffs by so doing, the Court stared: contract, and the plaintiffs' com­ plaint alleges no facts showing a The controlling policy breach of any such duty imposed 7 consideration underlying by law. 2 tort theory is the safety 73 of persons and property In Selzer v. BrunseLL Brothers Ltd. , the Wisconsin Court of Appeals con­ - the protection of per­r sons and property f om sidered whether the economic loss rule losses resulting from applied to a homeowner's claims injury. The controlling against a window manufacturer. In policy consideration Selzer, the homeowner purchased win­ underlying the law of dows for the installation in his home based upon recommendations of his contracts is the protec­ 74 tion of expectations bar­ architect. About seven years after the gained for. If that dis- windows were installed, Selzer discov­ tinction is kept in mind, ered wood rot in several of the window action for negligent design where the the damages claimed in a par­ frames and also noticed rot in the sid­ plaint iffd id not suffer any personal ticular case may more readily be ing below several of the windows . injuries and the losses were solely eco­ classified between claims for Selzer brought suit against several defendants, including the manufacturer n omic. In Sensenbrenner, plain tiffs 111JLtnes to persons or property on 75 entered into a contract with O'Hara & one hand and economic losses on of the windows. Selzer claimed that Co. to construct a new home in the other. the window manufacturer breached its Alexandria, Va.69 Plaintiffs filed suit and express and implied warranties and alleged that, due to negligent design, The plaintiffs here allege nothing fraudulently misrepresented the quality water pipes broke and eroded the soil more than disappointed of its windows. Selzer also made claims under a pool, which then eroded the economic expectations . They for intentional misrepresentation, strict foundation of the house. The plaintiff's contracted with a builder for the liability, and negligent misrepresenta­ tion against the manufacturer of the suit against the defendant was based purchase of a package. The pack­ 76 entirely upon several theories of negli­ age included land, design windows. The window manufacturer gence. O'Hara moved to dismiss the services, and construction of a moved for summary judgment on all suit on the grounds the plaintiffs had dwelling. The package also claims, which the trial court granted. failed to state a claim upon which relief included a foundation for the Selzer appealed. could be granted. O'Hara argued that dwelling , a pool, and a pool On appeal, rhe Wisconsin Court of the plaintiff's damages were solely for enclosure. The package is alleged Appeals held that Seizer's contract and false advertising claims were barred by economic losses and that there could be to have been defective - one or 77 no recovery in tort. The district court more of its component parts was the statute of limitations. The court agreed and dismissed the complaint.70 sufficiently substandard as to also held that Seizer's strict liability and On appeal, the plaintiffs argued that cause damage to other parts. The misrepresentation claims were barred district court had erred by dismissing effect of the failure o n the by the economic loss rule, stating: their case and specifically argued that substandard parts to meet rhe their damages were not purely economic bargained-for level of quality was Nevertheless, we conclude that damages, but damages for injury to to cause a diminution in the Seizer's misrepresentation claims "other property. " The Virginia Supreme value of the whole, measured by are barred by the economic loss Court disagreed, holding that the dam­ the cost of repair. This is purely doctrine. The economic loss doc­ ages claimed by the plaintiffs were merely economic loss, for which rhe law trine recognizes that contracts "disappointed economic expectations" of contracts provides the sole and torts encompass distinct and, therefore, were "pure economic loss remedy. areas of law that are intended to damages."71 resolve different types of claims, Noting the importance of maintaining Recovery in tort is available only and that doctrine seeks to main­ a distinction between tort law and con­ when there is a 'breach of a duty tain this distinction. [Citations tract law in a construction context, the to take care for the safety of the omitted.] The rationale underly­ Virginia Supreme Court held that the person or property of another' ing the doctrine is that claims

69. Id. at 56. 74. Id. at 810. 70. Id. 75. Id. 71. Id. at 57-58. 76. Jd. 72. Id. 77. Id. at 815- 16. 73. 652 N.W.2d 806 (Wisc. Cc. App. 2002).

36 - JUNE 2005 THEJO URNAL OF THEKANSA S BAR ASSOCIATION LEGAL ARTICLE: THE ECONOMICLOSS RULE ... 1 Application of the Economic· concerning strictly 'economic' V. set aside the jury verdict on the basis that losses (damages suffered because Loss Rule in Kansas to the damages awarded by the jury were a product does not perform as Construction Cases. barred by the economic loss rule as set in tended, including damage to forth by the U.S. Supreme Court deci­ the product itself or monetary Kansas courts have also had the sion in East River and the prior Kansas 8 1 loss caused by the defective prod­ opportunity to apply the Economic decision in Ko ss Co nstruction. uct) are best governed by the Loss Rule to construction cases, both in On appeal, Northwest argued that contractual obligations of the a commercial and residential construe- damage caused by a product to "other parties. [Citations omitted.] tion contract. property" is not barred by the eco­ Allowing buyers and sellers to A. NorthwestArkansas Masonry Inc. nomic loss rule. The Kansas Court of 82 allocate the risk of these losses by v. Summit Sp ecialty Products In c. Appeals disagreed with Northwest's contract promotes an efficient, characterization of its8 3 damages as harm In No rthwest Arkansas Masonry79 Inc. v. predictable market place. Summit Sp ecialty Products Inc., plaintiff, to "other property. " In holding that [Citations omitted.] On the Northwest, brought a suit alleging prod­ the damages to Northwest's wall were other hand, claims concerning ucts liability against the supplier, manu­ not damages to "other property," the personal injury or damage ro facturer, and packager ofTy pe-S Masonry Court of Appeals stated: property other than the product Cement. Like the plaintiffs in Ko ss and itself are best governed by tort Jo rdan,the plaintiffin No rthwest Arleansas Several jurisdictions apply the law, an area of law intended to Masonry argued that defendant's allegedly integrated system app roach in con­ protect people frommisfortunes defective Ty pe-S Masonry Cement dam­ struction and building defect that are unexpected and over­ cases. These cases are persuasive 78 aged "other property," specifically, plain­ whelming. [Citations omitted.] tiff's cement wall. The jury found in and consistent with the approach favor of Northwest. Following the trial, taken in Ko ss and Jo rdan. For the court entered judgment as a matter of example, recovery under a prod­ ucts liability action was barred law in favor of both the80 manufacturer and packaging company. The trial court when defective roofing products

78. Id. at 816-17. 81. Id. at 737. 79SO.. Id.29 Kan. App. 2d 735, 31 P.3d 982 (2001). 82. Id. at 741 -42. 83. Id. at 742.

THE JOURNAL OF THEKANSA S BAR ASSOCIATION JUNE 2005 - 37 LEGAL ARTICLE: THE ECONOMICLOSS RULE ... and design resulted in substantial The damages claimed by Prendiville claimed that the water infil­ repair and replacement costs. Northwest are economic losses tration was a result of negligent con­ [Citation omitted.] Removal and resulting from failed economic struction of the house, specifically the to 88 replacement of untreated ply­ expectations and not damage installation of the Dryvit siding. wood, shingles and other compo­ other property. Northwest pur­ Prendiville also alleged that defendants nents of a builder's roof system chased the cement and made it breached their warranty and violated89 were not recoverable damages to into mortar. Northwest inte­ the Kansas Consumer Protection Act. other property when the builder grated the mortar and other com­ Defendants filed a motion forsummary had to replace chemically treated ponents into a final product - judgment, arguing that the negligence plywood that was fa iling to the masonry wall. The damages claim was barred by the economic loss maintain strength and structural claimed by the cost of additional rule. The district court agreed and integrity. [Citation omitted.] materials were repair and replace­ granted the summary judgment motion Paving blocks were determined m en t costs and occurred as a because Prendivi90lle's damages were to integrated systems and the cost to result of tearing down the wall the home alone. repair and replace incurred because the mortar made with On appeal, Prendiville argued that because of defective cement the cement that the jury found the economic loss doctrine did not ingredients could not be recover­ defective failed to meet the apply in a "residential construction able under a products liability required bonding strength. context" because a house is not a "prod­ claim. [Citation omitted.] Therefore, under both the Kansas uct" and the new home sale contract 1 Where faulty cement caused rein­ Product Liability Act and rele­ was for the delivery of "services." 9 forcing steel inserted in concrete vant case law addressing the eco­ Prendiville specifically argued that the to rust causing concrete to break nomic loss rule as applied to con­ negligent services were the cause of the and crack off, the homeowner's s tructio n or building product damages and that this92 was not a "defec­ tort claim was barred because the defects, the trial court did not err tive product" case. damage was economic loss as no in barring Northwest's strict lia­ The Kansas Court of Appeals disagreed property other than the struc­ bility claim by granting [defen­ and held that the economic loss rule tures built with the defendant's dant's] motion85 for judgment as a applies in residential construction cases matter of law. regardless of whether a house is deemed cement sustained damage. to [Citation omitted.] These cases be a "product" or not, and that the stand forthe proposition that rights and liabilities of the parties should B. Prendiville v. Contemporary be governed by the contract and express when component materials Ho mes Inc. 93 become indistinguishable pans of warranty rather than in torr. a finalpro duct, and there is harm Although other states had previously Furthermore, like the plaintiffs in resulting from a defective compo­ applied the economic loss rule to resi­ Koss and Jo rdan, Prendiville attempted dential construction defect cases, to argue that the damage he was seek­ nent of the product, the product84 to itself has caused the harm. Kansas appellate courts had never had ing was "other prorerry" and not to the opportunity to extend the rule to the Dryvit exterior. 4 The Court of The No rthwest court, therefore, held residential construction cases until the Appeals saw through Prendiville's argu­ that the economic loss rule barred Kansas Court of Appeals considered ment and noted that Kansas courts had Northwest's claim for damages to its Prend86 iville v. Con tempora ry Ho mes adopted the "integrated system cement wall. In so holding, the court Inc. In Prendiville, the plaintiffhome­ approach," which recognizes that dam­ solidified the application of the "inte­ buyers executed a new construction sale age to a component of the "integrated grated systems approach" and contract with the defendant. Prendiville system" to either the system as a whole, reinforced the policy for applying the selected an artificial stucco product or to the system components, is not economic loss rule to cases where the known as Dryvit as the exterior finish "damage to other property, which pre­ plaintiffhas suffered no physical injury for his house. After moving into the87 cludes the applica95 tion of the economic nor damage to other property, stating: home, Prendiville's basement flooded. loss doctrine. "

84. Id. at 743-44 (emphasis added). negligence claim against manufacturer of chemically treated plywood). 85. Id. at 745. But see, Marcuculli v. Boardwalk Builders Inc. , 1999 WL. 1568612, *4 86. 32 Kan App. 2d 435, 83 P.3d 1257 (2004). The economic loss (Del. Super. Ct. 1999) (holding that Delaware's Homeowners rule has been applied in wide variety of residential construction cases. Protection Act, established in I 996, extinguished the economic loss See, e.g., Gunkel v. Renovations Inc. , 797 N.E.2d 841, 845 (Ind. App. doctrine in cases involving residential construction). 2003) (applying the economic loss doctrine to bar homeowners from 87. Prendiville, 32 Kan. App. 2d at 436. making negligence claim against masonry installer) ; Crowder v. 88. Id. at 436. Vandendeale, 564 S.W. 2d 879, 884 (Mo. 1978) (plaintiffnot allowed to 89. Id. make claim for damages in tort against builder for alleged "structural 90. Id. at 437-38. For reasons not explained in the Opinion, the defects"); Ca llaway v. City ofReno, 993 P.2d 1259, 1270-71 (Nev. 2000) claims forbr each of contract and violation of the Kansas Consumer (applying the economic foss rule to construction of townhomes); Protection Act were dismissed without prejudice by Prendiville. Atherton Condominium Assn. v. Blume Develop. Co., 799 P.2d 250, 256 91. Id. at 441. (Wash. 1990) (plaintiffcould not bring tort claim against builder 92. Id. at 442. without claim forper sonal injury or damage to "other ptoperty"); Pulte 93. Id. at 441-42. Ho me Corp. v. Osmose Wood Preserving Inc. , 60 F.3d734, 7 42 (11 ch Cir. 94. Id. at 446-47. 1995) (applying economic loss rule to prevent builder from making 95. Id. at 446 (citing No rthwest Arkansas, 29 Kan. App. 2d at 744).

38 - JUNE 2005 THE JOURNA L OF THEKANS AS BAR ASSOCIATION LEGAL ARTICLE: THE ECONOMIC LOSS RULE ... , In so holding, the court stated: Kansas Bar Association Buying a house is the largest investment many con­ sumers ever make [citation omicced], and homeowners is making available to ALL members are an appealing, sympathetic class. If a house causes eco­ nomic disappointment by not meeting a purchaser's Association expectations, the resulting failure to receive the benefit of the bargain is a core concern of contract, not tort, law Hea lth Programs [citation omitted] . There are protections for homebuy­ ers, however, such as statutory warranties, the general Health Insurance warranty of habitability, and the duty of sellers to dis­ Individual close defects, as well as the ability of purchasers to Group - full/part-time employees inspect houses for defects. Coupled with homebuyers' Student Plans powers to bargain over price, these protections muse be Short-Term Coverage viewed as sufficient when compared with the mischief Medicare Supplements that could be caused by allowing tort recovery for purely International Travel Insurance economic losses.96 Long-Term Care Insurance Home Care VI. Conclusion. Assisted Living Care Kansas courts do not recognize a cause of action for negli­ Nursing Home Care gent construction where there is no personal injury or damage Life Insurance to other property. The economic loss rule, which bars such a Term claim, helps to maintain the distinction between contract law Universal and tort law. Although it is tempting co allow a homeowner to Survivorship (2nd to Die) proceed in core against a construction company, courts should Key Person continue to apply the economic loss rule so chat parties■ co a Executive BenefitLif e construction contract can allocate their risks accordingly. • Disability Income • Critica l Illness •

Id. at (quoting Casa Clara 11. Charley Toppino Sons, • Dental • Vision • Accident Policies • 96. 445 620 (Fla. • Cancer Policies • So.2d 1244, 1247 1993)). & Rates and availability may vary by state. About theAuthors KBA Association Health Programs Kevin Breer is an associate at Polsinelli 6319 West 110th Street, Shalton Welte Suelthaus P.C. in its Overland Overland Park, KS 66211 Pa rk offi ce. His practice focuses on residential Phone: (888) 450-3040 construction and real estate litigation. Previously, he served as research attorney for Fax: (913) 341-2803 Justice Bob Abbott of the Kansas Supreme Visit us at www.associationpros.com Co urt. E-mail us at [email protected] Receive enhanced insurance benefits for Justin D. Pulikkan earned his B. S. in biology and B.A. in yourself, your fa mily, or your employees psychology from the Un iversity of Ottawa, Ca nada, in 1996 (both full- and part-time)! and his j. D. fr om Washburn Un iversity School of Law in 1999. He is currently an associate in the Ka nsas City, Mo., offi ce of Sonnenschein Na th and Rosenthal LLP, where he works in all areas of employee benefits, including Employee Retirement Income � Associates In Dispute l�esolution, LLC Security Act (ERJSA), pensions, welfarepl ans, and deferred compensation. Prior to private � Dispute Resolutlon Professionals practice, he served as a research attorney to the Ka nsas Court of App eals and la ter forju stice Fred N Six of the Mediation & Arbitration Services KansasSu preme Court. Choose from our panel of highly experienced mediators and arbitrators that possess many years of Puliklcan is licensed to practice la w in Kansas, Missouri, and dispute resolution experience. Illinois. 212 S.W. 8th Ave., Suite 102 To peka, KS 66603 Toll Free (866) 357-2800 Phone (785) 357-1800 Web site: www.adrmediate.com

THEJO URNA L OF THE KANSAS BAR ASSOCIATION JUNE 2005 - 39 New Supreme Court Rule Mandates use of new CoverShe ets

new Supreme Court rule has been adopted, mandating the • by streamlining the transfer of this party information, the Ause of new cover sheets for all Kansas court case clerks will have the information they need to mail notices filings. The rule is effective July 1, 2005. in a timely manner. According to the Office of Judicial Administration, the new Supreme Court Rule 123 facilitates case filings in several ways: Confidentiality • promotes privacy interests of lawyers' clients and also Statewide Consistency victims, witnesses, and other parties to the case. • allows fora statewide electronic format; • provides a step toward electronic filingca pabilities; Statistical Subtypes • allows for the attocney, rather than the clerk, to make the • prosecutors using the Kansas Prosecutors System will be legal determination about the particular subtype of the case able to generate pleadings from FullCourt; they are filing, • attorneys will only have to keep track of one form rather • provides for more detailed information about the types of than multiple forms based on the county; cases being filed,in accordance with national standards, • other government agencies, local and state, will also have one • standardizes the information for the collection of data, and form rather than multiple formsbased on the county; and • saves the clerk time, allowing cases to be filedmore quickly. • will streamline the transfer of information between the clerk's office and attorneys. The Rule and forms are available online■ at: www.kscourts.org Party Identification by following the link under "What's new." • helps determine parties for matching criminal history and

IN THE SUPREME COURTOF THE STATE OF KANSAS ADMINISTRATIVE ORDER NO. 194 Re: Rule Requiring Use of Cover Sheets and Priva Poli Regarding Use of Personal Identifiers in Pleadingscy cy

The attached Supreme Court Rule 123 is hereby adopted. ADOPTED BY ORDER OF THE COURTthis 5th d of May, 2005. ay K McFarland Chiefay Justice

(a) Effective July 1, 2005, forthe filingof all new cases, the clerks of the district courts shall require the submission of a cover sheet. The cover sheets should be in substantially the same form as Exhibit A hereto. The judicial administrator may exclude certain cases from this requirement. (b) Parties filing new cases seeking divorce, child custody, child support, or maintenance shall furnish to the clerk on the cover sheet Social Security numbers for the parties and for the parties' children, if known, and dates of birth for parties and children. (c) Pursuant to the court's authority recognized in K.S.A. 45-221 (a)(l), Social Security numbers and dates of birth supplied to the district court in connection with a cover sheet shall remain confidentialand are not to be released to the public. (d) The cover sheet should not be retained in court case files, is not subject to Rule 108, and may be shredded or otherwise destroyed within a reasonable time afterthe case is entered into the case informationsyst em. r (e) Unless otherwise required by law, parties and their attorneys are directed to refrain f om including, or shall partially redact where inclusion is necessary, the following personal identifiers from all pleadings filed with the court, including exhibits thereto, unless otherwise ordered by the court:

1. Social Security numbers. If an individual's Social Security number must be included in a pleading, only the last four digits of that number shall be used. 2. Dates of birth. If an individual's date of birth must be included in a pleading, only the year shall be used. 3. Financial account numbers. If financial account numbers are relevant, only the last four digits of these numbers shall be used.

The parties and counsel are solely responsible forreda cting personal data identifiers.The clerk will not review each pleading forcompli ance with this Rule.

40 - JUNE 2005

THEJO URNA L OF THE KANSAS BAR ASSOCIATION J .f APPELLATE DE_illfONS �cc-:=o

All opinion digests are available on the KBA members-only Website at www.ksbar.org, and we send out a weekly eJournal informingKBA members of the latest decisions. If you do not have access to the KBA members-only site, please contact member services, at [email protected] or at (785) 234-5696. Yo u may go to the courts' Website at www.kscourts.org forthe fullopinio ns.

Supreme Court

INRE JIMMIE A. VA ND ERBILT ORIGINA L PROCEEDINGIN DISCIPLINE ONE YEARDEFINITE SUSPENSION IN RE GERALDE. HER TACH NO. 93,394-A PRIL 22, 2005 ORIGINA L PROCEEDING INDISCIPLINE Attorney Discipline FACTS: Respondent, an attorney from Oskaloosa, stipu­ DISBARMENT lated to allegations of misconduct arising out of his service as NO. 92, 838 -APRIL 22, 2005 Jefferson County Attorney. A disciplinary panel found viola­ FACTS: Respondent, who was in private practice in a tions of KRPCs 1.1(competence), 1.3 (diligence), 1.16 (d) Hutchinson firm, was convicted of two counts of participa­ (termination of representation), 3.2 (expediting litigation) tion in a prohibited cont ract, Class B misdemeanors, in vio­ and 8.4 (d) (misconduct prejudicial to the administration of lation of KSA 75-4304(6). The criminal charges were based justice) and (g) (misconduct adversely reflecting on fitness to on respondent's business dealings with Reno County's pri­ practice law). The underlying facts involved failure to file vately operated jail annex in which he was an undisclosed appellate briefs and misuse of a county cellular telephone principal. and debit card. The panel found three aggravating factors At the plea hearing, respondent and three other related and two mitigating factorswere present. defendants were ordered to pay restitution of $750,000 and In a split decision, the majority recommended a six-month to present a workable restitution plan. However, by the date definite suspension followed by a one-year period of proba­ of sentencing, Hertach had not provided such a plan, nor tion incorporating seven required conditions. The remaining did he have the apparent ability to pay restitution. He was panel member filed a report concurring in the findings of sentenced to two consecutive terms of six months in jail, fact and conclusions of rules violations but recommending based on a finding that he had engaged in deceitful conduct that respondent be sanctioned by published censure as rec­ founded on deliberate greed. The court agreed to consider a ommended by the Disciplinary Administrator. No excep­ motion for parole after 90 days served if respondent pro­ tions were filed. vided a workable restitution plan, but he never did and HELD: The Supreme Court found the findings of factand served the full 12 months in jail instead. conclusions of rules violations to be undisputed and adopted A hearing panel of the Board of Discipline found them. However, the Court disagreed with both recommended violations of KRPC 8.4 (b) (criminal misconduct) and (c) sanctions and concluded that a one-year definite suspension (misconduct involving dishonesty, fraud, deceit, or misrepre­ from the practice of law was the appropriate discipline. sentation) and SCR 21 1 for failureto file a timely answer to the formal disciplinary complaint. Several aggravating and Civil mitigating factors were found. The panel unanimously agreed that ABA Standard for Imposing Lawyer Sanctions section 5. 11 applied and recommended disbarment with ADMINISTRATIVELAW AN D PROCED URE - LICENSES proof of repayment of profits required prior to future rein­ CROSS V.KAN SA S DEPT. OF REVENUE statement. Respondent filed exceptions to certain findings RILEY DISTRICT CO UR T - AFFIRMED and recommendations in the Final Hearing Report. NO. 92, 051 -APRIL 29, 2005 HELD: The Supreme Court found competent evidence in FACTS: Cross was arrested for driving under the influence. the record to support the panel's factual findings of viola­ Administrative hearing officer affirmed the suspension of tions and factors in aggravation and mitigation. The Court Cross' license. On petition for review she claimed KS.A 8- examined ABA Standard 5. 11 and found disbarment to be l 020(g) limit on witnesses who may be called for administra­ appropriate pursuant to Standard 5 .11 (b). tive hearing denied her due process and was unconstitutional on its face. District court found no denial of due process, and found Cross had no standing to facially attack the statute. Cross appealed; appeal transferred to Supreme Court.

JUNE 2005 - 41

THEJOU RNA L OF THE KANSAS BAR ASSOCIATION ISSUE: Constitutionality of K. S.A. 8-1020(g) eluded that the trial court's March 2003 order was not HELD: District court is affirmed. Kansas Implied Consent authorized by K. S.A. 60-260(a) as a clerical mistake. Court Law prior to 2001 amendment at issue is reviewed. Under held that Wassar should have disclosed the childcare costs as facts, KS.A. 8-1 020(g) did not deny Cross' due process a matter of equity and Wassar's failure to disclose resulted in where she did not establish other witnesses were relevant to a judgment against Leedy for an arrearage of thousands of whether there were reasonable grounds to ask her to submit dollars that he in fact did not owe. Court foundWas sar's fail­ to testing. Thus, Cross had no standing to make a facialcon­ ure to disclose the error constituted misconduct that would stitutional attack upon the provisions of that statute. support relief from judgment under K.S.A. 60-260(6)(3) STATUTES: K.S.A. 8-1001((6)(1) and (2), -1002 sections and an order setting aside judgment on this basis could be (a), (a)(2), (b), and (d)-(f), -1020 sections (a), (b), (d), (e), upheld. Court also held Leedy's request for relief for over­ (g), (h)(2)(A)-(H), and (k)-(p); 20-3018(c); K. S.A. 8-1001 stated childcare expenses was made within a reasonable time. (1982 Ensley); K. S.A. 1981 Supp. 8-1001, -l00l(c); K. S.A. Court stated Leedy merely asserted that the Court of Appeals 8-255, -255(6) (Weeks) erred in upholding the trial court's refusal to set aside the award of attorney fees, but offered no reason why the ration­ CHILD SUPPORT,SETTI NG ASIDEJUD GMENT, ale was unsound. Court found no abuse of discretion in AND ATTORNEY FEES awarding of attorney fees. IN RE MARRIAGE OF LEEDY STATUTES: K.S.A. 60-260(a), (6), -1610; K.S.A. 2004 - SEDGWICKDIS TRICT CO URT JUDGMENTOF THE Supp. 60-1610(a)( l) COURT OF APPEALSAFF IRMING INPA RT,RE VERSING IN PA RT,AN D REMANDING ISAF FIRMED. JUDGMENT CIVIL PROCEDURE, SUBSTITUTION OF PA RTY, OF THE DISTRICT COURTIS AF FIRMED INPA RT, AND AMENDMENTOF PLEADINGS REVERSED IN PA RT,AN D REMA NDED. BACK- WENZEL V. WIL LIAMS NO. 90,378-A PRIL 22, 2005 SEDGWICKDIS TRICT CO URT FACTS: Dana Leedy, n/k/a Dana Wassar, and Robert JUDGMENTOF THE COURT OFAPP EALSREVERSING Leedy were married in 1990 and had three children, born in THE DISTRICT CO URT ISREVERSED. 1993, 1995, and 1997. Wassar and Leedy were divorced in JUDGMENTOF THEDIS TRICT CO URTIS AFFIRMED. 1999. Wassar was given primary residential custody of the NO. 90,701-APRIL 22, 2005 children, and Leedy was ordered to pay a fixed amount of FACTS: In December 2000, Back-Wenzel was injured in a child support beginning Jan. 1, 1999. By February 2002, car accident involving Williams. Williams died in July 200 1 Leedy owed $5,619 in unpaid child support and $874.05 in from conditions unrelated to the accident. On Dec. 12, unpaid medical expenses. District court found Leedy in con­ 2002, three days before the statute of limitations expired, tempt and ordered him to pay $857 in attorney fees to Back-Wenzel filed a petition against Williams alleging his Wassar. Leedy filed a motion to set aside the child ·support, negligence in the accident. The district court found service claiming it wasn't supported by the child support worksheets was obtained on Williams by residential service on Dec. 17, and there were calculation errors. Wassar admitted overstat­ 2002. Three months later, on March 13, 2003, Williams' ing child care expenses and the existence of errors and did insurance company notified Back-Wenzel that Williams had not object to the amounts for200 1 being set aside. The trial died. The district court found that 90 days to obtain service court sustained Leedy's motion and ordered the parties to had expired, but ordered an extension to April 17, 2003. On recalculate the child support using actual childcare and med­ April 1, Back-Wenzel filed a petition to appoint special ical expenditures. In March 2003, the trial court found administrator of Williams' estate to accept service. On April Leedy had overpaid his child support by $1,730.77, and that 8, Williams' attorney filed a motion to dismiss, claiming the Wassar had overstated the costs beginning in January 2000 district court lacked subject matter and personal jurisdiction and had ceased to have any day care costs after August 2002. and that Back-Wenzel failed to state a claim for relief. Back­ The trial court adjusted Leedy's child support payments Wenzel did not respond. On April 18, one day after the beginning February 2003 to reflect correct figures, corrected extension to obtain service expired, the district court denied the amount of medical expenses to $364.05, and denied Back-Wenzel's motion to substitute and granted Williams' Leedy's request to set aside the order for attorney fees. Wassar motion to dismiss without prejudice because Williams' pre­ appealed the recalculation of child support and arrearage, suit death precluded subject matter jurisdiction. Back­ and Leedy cross-appealed the award of attorney fees. Court Wenzel appealed, and the Court of Appeals reversed. of Appeals concluded the trial court improperly recalculated ISSUES: Did the district court err in dismissing the case Leedy's child support for approximately three years and and refusing to allow the special administrator to serve as the remanded fordirections to limit relief to one retroactive year. defendant? Court of Appeals affirmed the refusalto set aside the order of HELD: Court reversed the Court of Appeals decision and attorney fees. affirmed the district court's dismissal. Court stated that a ISSUES: Did the trial court err in granting relief pursuant motion to substitute under K. S.A. 60-225 cannot be used to to K.S.A. 60-260(a) to correct the child support payments? substitute a party who died before commencement of the Did the trial court abuse its discretion in awarding attorney action. Court also stated that a motion that is clearly a fees? motion to substitute a party under K. S.A. 60-225 will not be HELD: Court affirmed in part and reversed in part. Court construed to be a motion to amend the pleadings under stated that the March 2003 order was not an order that K. S.A. 2004 Supp. 60-215. Court stated there was nothing merely clarified what the court actually decided in February in the record demonstrating that Back-Wenzel was relying 2002 and, therefore, the Court of Appeals correctly con- on anything but K. S.A. 60-225 and any discussion in the

42 - JUNE 2005 THE JOURNAL OF THE KANSAS BARAS SOCIATION DIVORCE, SUPPORTPAYMENTS, AN D ATTORNEY'S LIENS Court of Appeals decision regarding KS.A. 2004 Supp. 60- INRE MARRIAGE OF BROWN 15 was moot. GREENWO OD DIS TRICT CO URT STAT UTES: KS.A. 60-225; KS.A. 2004 Supp. 60-215; AFFIRMED AND REMANDED FOR PROCEEDING KS.A. 2003 Supp. 60-102, -215 CONSIS TENT WITH THIS OPINION DIVORCE AND SPOUSAL MAINTENANCE NO. 90,307 -APRIL 22, 2005 IN RE MARRIAGE OF HARBUT Z FACTS: Prior to the resolution of the divorce between SEDGWICKDIS TRICTCO URT- JUDGMENTOF THE Wayne and Katrina Brown, Katrina's attorney (Lehecka) CO URT OF APPEALSAF FIRMING THEDIS TRICT COURT twice filed an attorney's lien against her client's anticipated IS REVERSED. JUDGMENTOF THE DISTRICT COURTIS property settlement and support payments. Approximately a REVERSED AND CASEIS REMANDED FOR FURTHER year and a half after the divorce was granted, Wayne sent two PROCEEDINGS CONSISTENTWIT H THIS OPINION. checks made out to Katrina and Lehecka to satisfy his entire NO. 91,024-A PRIL 22, 2005 settlement and support obligation to the Kansas Payment FACTS: Nancy and Steven Harbutz were granted a Center. The payment center processed the checks without divorce in September 2001 . An arbitrator's award ordered Lehecka's knowledge or signature and sent all the proceeds Steven to pay Nancy spousal maintenance in the amount of directly to Katrina instead of sending them to Lehecka's $450 a month until June 2007, terminable on Nancy's death office as directed by the divorce court. Lehecka claimed or remarriage and subject to modification for material wrongful payment to Katrina. The payment center change in circumstances. Steven filed a motion to modify challenged jurisdiction claiming Lehecka was required to maintenance after he lost his job in February 2002. By the intervene in the divorce action before he could recover his time the judge heard the motion in May 2002, Steven had fees. The district court found that there were two payees obtained a new job at a substantially reduced salary. Judge listed on the checks from Wayne and that the payment cen­ Dewey ruled chat maintenance would be "terminated" at the ter improperly processed the checks and paid all the proceeds time of the sale of the residence, but chat he would reserve to Katrina. Despite holding that the payment center lacked jurisdiction "co change chis" and chat it was not "a final order standing to argue that the payments co Katrina qualified as on spousal maintenance. " The journal entry of the hearing exempt property, the district court said an amount equal to did not include any of the Dewey's comments on continued four of the monthly maintenance payments was exempt jurisdiction or the finality of the order. The residence sold in because chose four payments were not yet past due at the October 2002. Steven filed a motion to terminate mainte­ time of the district court's final order on the property settle­ nance in February 2003 asking retroactive effect to ment and support. The district court ordered Katrina to November 2002. The district court never heard or decided indemnify the payment center in the amount of $ 1 9,003.25. Steven's motion. A month later, Nancy lost her job and filed ISSUES: ( 1 ) Did the district court err in enforcing a motion to reinstate maintenance. Without the benefit of Lehecka's attorney's liens against the payment center because the transcript of the May 2002 hearing, Judge Powell ruled it was not an adverse party and because it received no notice maintenance terminated at the rime of the sale of the resi­ of the liens? (2) Were Lehecka's liens defeated when the dence and the court had no jurisdiction to consider any checks passed through the payment center? (3) Did the pay­ modification of spousal maintenance. Without the benefit of ment center have standing to assert exemptions? the transcript, the Court of Appeals affirmed the district HELD: Court affirmed. (1 ) Court agreed with Lehecka court. chat his liens were effective against Wayne, the adverse party ISSUE: Did the district court have jurisdiction to consider in the divorce action. Lehecka's liens attached to the money reinstatement of maintenance after the residence was sold? represented by the two checks before the checks were ever HELD: Court reversed the district court. Court held that forwarded to the payment center. (2) Court held the pay­ Dewey lacked jurisdiction under KS.A. 60-1 6 1 0(6)(2) to ment center was bound to abide by the properly filed and permanently terminate spousal maintenance during the time noticed attorney's liens. The payment center had construc­ period originally set for its payment. Any termination he tive notice of the liens as the checks indicated an interest in attempted during that time period was subject to further Lehecka as one of the payees. The payment center had a duty modification, and Powell was free to order chat maintenance to inquire as to Lehecka's role and claim. (3) Court agreed resume or continue upon an appropriate showing in a subse­ with the district court that the payment center did not have quent hearing. Court held chat because Powell did not standing to argue applicability of the exemptions claimed by understand chat he possessed this power, the case was the payment center on Katrina's behalf. Court stated the reversed and remanded forh is reconsideration. payment center had no interest in the checks other than a STATUTES: KS.A. 2003 Supp. 60-1 6 1 0(6)(2) temporary possessory interest. Court stated the district court could have raised the issue sua sp onte, but the exemptions did not apply to the property settlement and all but four of the monthly maintenance payments were past due to Katrina when Wayne sent the check. Court remanded to the district court to permit Lehecka co recover on his liens against the entire amount of the property settlement and 1 6 months' worth of the monthly maintenance payments. Court said the other four months' worth of maintenance was exempt as cur­ rent support payment. Court found no justification for an award of fees on appeal since it involved a novel issue of law.

THE JOURNALOF THE KANSA S BAR ASSOCIATION JUNE 2005 - 43 T STA UTES: KS.A. 7-108; KS.A. 2004 Supp. 23-4, 118; public records from the Sedgwick County Register of Deeds KS.A. 2004 Supp. 60-2308(e) for sale to Data Tree and was required to sign an affi davit prohibiting the selling or offering for sale any lists of names FAILURE TOEXHAUS T ADMINISTRATIVERE MEDIES and addresses derived from public records. First American JONES V. STATE OF KANSA S AND signed an affi davit under objection in order to receive the EMPIREINSU RANCE COMPANY public records. The Register of Deeds informed First SHA WNEE DISTRICT CO URT- JUDGMENTOF THE American they would be required to pay the cost of redact­ COURTOF APPEALSAF FIRMING THEDIST RICT CO URT ing confidential information out of the microfilm of the IS AFFIRMED. public records. Data Tree sued the Register of Deeds seeking JUDGMENTOF THEDIST RICT COURTIS AFFIRMED declaratory judgment that: (1) the Register of Deeds' actions NO. 91,389 -APRIL 22, 2005 were contrary to law and the duties of its office; (2) the FACTS: Jones was sexually assaulted in August 1996 by requested documents were public records which must be the son of Wes and Linda Kress, her foster parents. Jones disclosed and copied at a reasonable charge; and (3) alterna­ sued the Kresses and during the pendency of that lawsuit, tively, the Register of Deeds must bear the costs of deleting the Kresses and Jones learned for the first time that Social the personal in fo rmation. The district court granted and Rehabilitation Services (SRS) had failed to name the summary judgment in favor of the Register of Deeds finding Kresses as insured on an Empire liability policy that insured the Kansas Open Records Act (KO RA) applied, but sensitive Kansas foster parents. Jones alleged the Kresses had provided information may be redacted before distribution to the pub­ care forh er in reliance upon SRS' agreement to obtain liabil­ lic and all costs of redaction were to be borne by Data Tree. ity insurance. Jones took judgment against the Kresses in the ISSUES: (1) Does the Register of Deeds have authority to amount of $100,000. The Kresses assigned to Jones any redact recorded information? (2) Do the privacy protections breach of oral contract action they would have for failure to of KS.A. 2004 Supp. 45-221(a)(30) apply to the Register of provide insurance coverage. There is no record of any admin­ Deeds and is that a basis for denial of access to copies of istrative proceedings filed by Jones. Instead, she pursued an public records? (3) If redaction is required, is the cost borne independent declaratory judgment action alleging breach of by the Register of Deeds? ( 4) Is Data Tree entitled to attor­ contract against SRS and bad faith against Empire. The only ney fees fordeni al of access? present claim is Jones' allegation of the existence and validity HELD: Court affirmed summary judgment in favor of the of the contract to provide insurance to the Kresses, $100,000 Register of Deeds. (1) Court held that it is beyond dispute in damages, interest, costs, and fees. The district court dis­ that the Register of Deeds' office is a public agency and that m issed Jones' lawsuit for failure to exhaust administrative the documents filed for record in that office are public records. remedies and thus lack of jurisdiction. The Court of Appeals (2) In considering the privacy concerns of KS.A. 2004 Supp. agreed with the district court. 45-221(a)(30), the Court held that social security numbers are ISSUE: Did the district court err in dismissing Jones' law­ considered information of a personal nature. Court stated suit for failure to exhaust administrative remedies? there was no reason mother's maiden names and dates of birth HELD: Court affirmed. Court stated that in a case involv­ do not fall within this privacy realm as well. Court found the ing a breach of contract claim against a state agency, KS.A. information sought by Data Tree is not being sought for its 77-612 permits a person to file a petition for judicial review public notice properties, but forc ommercial purposes and the under the Kansas Judicial Review Act (KJRA) only after public interest to be served by releasing unredacted documents exhausting all administrative remedies available within the is insignificant. Court held that where balancing the privacy agency whose action is being challenged and within any interests of the individual with the public's need to know or other agency authorized to exercise administrative review. where disclosure of the personal or private information failsto Court held the failure of SRS to obtain insurance for foster significantly serve the principal purpose of the KORA, nondis­ parents qualifies as an "agency action" under KS.A. 77- closure is favored if nondisclosure complies with other require­ 602(6)(3) and is governed by the KJRA. Court held Jones is ments of KORA. Court held that the Register of Deeds did entitled to neither the reversal nor the remand she seeks not abuse his discretion in determining that public disclosure because she failed to exhaust all administrative remedies of the personal information within the documents requested available to her for SRS' alleged breach of contract before fil­ constituted a clearly unwarranted invasion of privacy. (3) ing her declaratory judgment action, and no provision of the Court found KORA is silent on who bears the costs of redac­ KJ RA preserves her right to do so now. tion. Court held KORA makes clear the legislative intent that STATUTES: K.S .A. 75-5328a; K.S.A. 77-602(6)(3), actual costs of furnishing copies of public records may be -603(a), -606, -607(6)(1), -6 12, -6 13(d)(l ), (2), -621(c) recovered by the agency and that the person seeking the KANSAS OPENRECORDS ACT, REGISTER OF DEEDS, records should bear the actual expense. Court held the district AND REDA CTION court did not err in ruling the costs of producing records, DATA TR EE LLC V.BILL MEEK, SEDGWICK COUNTY including the costs of redaction, are to be borne by Data Tree. REGISTER OF DEEDS (4 ) Court agreed with the district court that the change in pol­ SEDGWICKDIS TRICT COURT- AFFIRMED icy of the Register of Deeds from nonredaction to redaction of NO. 92,596 -APRIL 22, 2005 social security numbers, mother's maiden names, and dates of birth from recorded instruments was not made in bad faith FACTS: Data Tree is in the business of collecting and pro­ and was tal<:en during the ordinary course of his duties. Court viding real estate information and, in the course of such held the district court did not err in not awarding attorneys business, gathers and disseminates facts obtained from public fees to Data Tree because there was a "reasonable basis in fact records to its clients. First American attempted to gather the or law" forthe actions of the Register of Deeds. 44 - JUNE 2005

THEJO URNAL OF THEKANSAS BAR ASSOCIATION STATUTES: K.S.A. 8-240(6)(1); K.S.A. 19-1204(a); ment. Court held there was no evidence Nelnet engaged in a KS.A. 20-30 18(c); KS.A. 21-3914; KS.A. 2004 Supp. 25- deceptive or unconscionable act or practice under the KCPA. 2320(6); KS.A. 2004 Supp. 44-550b(a)(4); KS.A. 45-20 1 STATUTES: K.S.A. 20-30 18(c); KS.A. 50-626, -627 et seq.; KS.A. 45-215 et seq., -215(a)(30), -217(f)(l ), -2 16, RES TITUTION -2 18(a), -2 19(c), -22l (a), (26), (30), -222(c); KS.A. 2004 TONGE V. WERHOLTZ Supp. 45-22l (a)(30), (d), -222(c), -230; KS.A. 2003 Supp. LEAVENWORTH DISTRICT CO URT 45-22l (a)(30), -230 REVERSEDAND REMANDED WITH DIRECTIONS LOAN REPA YMENT, CONVERSION, FRA UD, NO. 93,329-A PRIL 22, 2005 AND CONSUMER PROTECTION FACTS: Tonge was incarcerated with the Department of BOMHOFF V.NELNE T LOAN SERVICES INC. Corrections when he escaped in July 1998. Tonge was appre­ JEFFERSON DISTRICTCO URT - AFFIRMED hended and ordered to pay $1,956.75 for costs incurred by NO. 92, 112 -APRIL 22, 2005 the state in regaining his custody. Following the proper FACTS: In June 1997, Bomhoff signed a consolidation administrative proceedings, the distr ict court eventually loan application/promissory note to consolidate her student upheld the restitution, but reduced it to $1,104.68. The loans with Nelnet. Two months later, Bomhoff received a Court of Appeals affirmed the district court's change of the disclosure statement and repayment schedule for a loan of restitution amount. Tonge served his sentence, was released on $19,902.38 at an annual interest rate of 8 percent with pay­ bond and returned to prison on a technical violation. While ments starting September 1997. Bomhoff made nine sched­ incarcerated Tonge paid $290.64 toward his disciplinary resti­ uled payments during the next two year period and received tution, leaving an unpaid balance of $814.04. In February three separate periods of forbearance during which interest 2003, Tonge was charged with new offenses in Geary County, accrued on the principle. At the end of each forbearance was discharged from the old sentence, including the Saline period, the accrued but unpaid interest was capitalized and County escape, and he was returned to the Department • of added to the principle and new repayment schedules were Corrections (DOC) in June 2003. Upon return to incarcera­ calculated and sent to Bomhoff. In November 1999, the r tion, the DOC garnished Tonge's trust account to pay the principal due was $22,340.95 and f om thereafter Bomhoff restitution previously ordered. The DOC denied Tonge's two made the scheduled monthly payment. By January 2002, the grievances where he complained the restitution order was principal was reduced to $21,146.69. Bomhoff made a cou­ unfair, unjust, improper, and not moderate for his living con­ ple payments greater than the monthly minimum and ditions and sought to set it aside. The district court concluded Nelnet applied the amounts greater than the interest to the DOC lacked authority to collect restitution from Tonge reduce her principal. In March 2002, Bomhoff made a because the regulation used by DOC was not an effective $1,000 payment with a note stating to apply the $1,000 regulation until afterT onge had completed his sentence. The toward the principal on the loan. Nelnet first applied the district court enjoined the DOC from withholding funds payment to the accrued interest ($ 1 93.40) and the remain­ belonging to Tonge as setoffo r payment for restitution. der ($806.60) to reduce the principal. When Bomhoff ISSUES: Is Tonge required to continue paying disciplinary learned the full amount had not been applied to the princi­ restitution foran event when the incarceration related to chat pal, she sued Nelnet claiming the payments made in addi­ event has ended? Whether the DOC has authority to collect tion to her scheduled monthly payments were not deducted disciplinary restitution from an inmate who has been from the loan's outstanding principal but were used instead released from incarceration and because of another crime by Nelnet to extend the due dates on the next payments in committed by chat inmate, returned to incarceration? order for Nelnet to wrongfully collect interest income. The HELD: Court reversed and remanded. Court stated the district court granted summary judgment in favor of Nelnet language of the Feb. 15, 2002, amendment to K.A.R. 44-12- on all claims. 1306(a) (3) specifically allows the DOC to continue collec­ ISSUES: Did the district court err in granting summary tion of a previously imposed restitution order. Court stated judgment in favor of Nelnet? Was Nelnet's conduct action­ chat changing the method of collecting disciplinary restitu­ able as conversion, fraud, and violations of the Kansas tion is a change in procedure and has no effect on the under­ Consumer Protection Act (KCPA)? lying disciplinary infractions or the amount of restitution HELD: Court affirmed summary judgment to Nelnet. ordered. The DOC articulates DOC policy and a change in Court rejected Bomhoff's conversion claim finding her enforcement of disciplinary restitution is within the DOC's account statements indicate chat payments are applied first control as long as it does not exceed the DOC's authority. to outstanding interest and the remainder is applied to prin­ Court held the amendment of K.A.R. 44-12-1306(a)(3) cipal. Court held Nelnet did not convert any of Bomhoff's became effective on Feb. 15, 2002. The record showed funds because it did precisely what she authorized it to do, Tonge was still incarcerated on chat date, as he was not apply the $1,000 first to outstanding interest and then out­ guidelines released until March 19, 2002. It is therefore clear standing principal. Court found no actionable fraud because the additional wording of the regulation allowing restitution Bomhoff's next payment due was not an untrue statement owed to be collected upon any subsequent readmission of an and chat the amount over the outstanding interest applied to inmate to a facility applies to Tonge notwithstanding the fact prepayment of future installments by advancing the next the restitution order and amount was determined as a matter payment due date unless the borrower requests otherwise. of substance prior to the amendment of K.A.R. 44-12- Court found chis advancement was a courtesy to the bor­ 1306(a)(3) effective Feb. 15, 2002. Court reversed with the rower by allowing a temporary relief from making a required instructions to deny Tonge the requested relief under his 60- monthly payment in addition to the extra lump sum pay- 1501 action.

THEJO URNAL OF THEKANSA S BAR ASSOCIATION JUNE 2005 - 45 STATUTES: K.S.A. 20-3018(c); K.S.A. 2000 Supp. 21- 461 0(c), (d); K.S.A. 2004 Supp. 60- 1501, -4301; K.S.A. Criminal 2004 Supp. 75-5210(f); K.S.A. 77-415 et seq., -425, -430a

STATE V.BU EHLER-MAY TR US T AND TR USTEE LIABILITY WYA ND OTTE DISTRICT COURT - AFFIRMED FACTS: Buehler-May convicted of first-degree murder MCGINLEY V.BANK OF AMERICA N.A. NO. 91,470 - APRIL 22, 2005 and other criminal charges. Sentence included a hard 50 sen­ SHA WNEE DISTRICT COURT- AFFIRMED FACTS: In November 1990, McGinley established a revo­ tence. On appeal, Buehler-May claimed trial court erred in: NO. 92,230 -APRIL 22, 2005 cable trust with Bank of America (Bank) serving as trustee. (1) denying motion filed on first day of trial to endorse psy­ Seven months after McGinley established her trust, she chiatrist as expert witness; (2) admitting gruesome and signed a letter directing the Bank to retain Enron stock held cumulative photographs; (3) not giving cautionary accom­ in trust. The letter also stated that McGinley agreed to exon­ plice instruction to jury; (4) applying unconstitutional hard erate the Bank from any loss it sustained for continuing to 50 sentencing statute; and (5) imposing hard 50 sentence retain the stock and that she relieved the Bank from any based in part on factor found to be insufficient during sen­ responsibility for analyzing and monitoring that stock. The tencing of co-defendant. value of the Enron stock substantially increased from 1991 ISSUES: (1) Endorsement of expert, (2) gruesome photo­ through 2000. At its height, the stock was worth nearly graphs, (3) accomplice jury instruction, (4) hard 50 sentenc­ $800,000 in December 2000, representing 77 percent of the ing scheme, and (5) hard 50 sentence total market value of the trust. By March 2001 the shares HELD: Request for endorsement of psychiatric witness amounted to 66 percent of the trust, by June 2002, 64 per­ was not timely under K.S.A. 22-3219(1), and no good cause cent, by September 200 1, 50 percent, and by December demonstrated for late notice. Court has not previously con­ 2001, 2 percent, with a value of only $4,800. McGinley sued sidered effect of trial court's failure to consider factors in the Bank. The district court granted summary judgment in Statev. Bright, 229 Kan. 185 (1981), in deciding motion to favor of the Bank finding McGinley released the Bank of all endorse witness for testimony relative to defense of lack of liability and any responsibility for monitoring or analyzing mental state. Same rule for a late notice of alibi defense is the stock. applied. Also like alibi defense, notice requirement for pre­ ISSUE: Did the language in the trust and subsequent let­ senting defense under K.S.A. 22-3219 does not infringecon­ ter shield the Bank from liability for its inaction? stitutional right to present such a defense. HELD: Court Affirmed. Court held that because a trustee No error in allowing challenged photographs to be admit­ followed written directions received from the grantor of a ted into evidence. revocable trust regarding the property of the trust, it has No clear error in not giving cautionary accomplice instruc­ complied with the prudent investor rule and is authorized to tion where accomplice testimony corroborated Buehler­ follow such written directions. Court stated that a court will May's statement, defense counsel cross-examined accomplice not consider parol evidence to aid in the interpretation of a witnesses about their plea-agreements, and trial court trust instrument and resulting letter that are clear and unam­ instructed on witness credibility. biguous on their faces. Court held the trust instrument and Kansas hard 50 sentencing scheme is not unconstitutional. resultant letter were clear and unambiguous. Court stared Under facts, wrapping body in tarp and placing it in river clearly the better practice for the Bank would have been to is not sufficient evidence of particular depravity of mind to communicate to McGinley the letter's contents and effect support application of K.S.A. 2004 Supp. 21-4636([)(6). before she signed it, and notified her of evolving circum­ However, sufficient evidence of other aggravating factors stances of Enron's slow demise. However, the Court found supports conclusion that Buehler-May committed murder in no relevant authority showing the Bank had a legal obliga­ especially heinous, atrocious, or cruel manner. tion to do so under the facts of the case. Court stated the STATUTES: K.S.A. 2004 Supp. 21-4636([) subsections Bank was not required to override the decisions of McGinley (3)-(6); K.S.A. 22-3218, -3219(1), -4508, 60-404 when the circumstances evolved, i.e., to protect her from herself. STATUTES: K.S.A. 20-3018(c); K.S.A 58-201 et seq., et seq.; STATE V.DE LA CERDA -1201 K.S.A. 1968 Supp. 58-1208; K.S.A. 1972 LYONDIS TRICT CO UR T - AFFIRMED FACTS: De La Cerda pied guilty to possession of cocaine Supp. 58-1202; K.S.A. 1987 Supp. 17-5004; K.S.A. 1993 NO. 91,963-A PRIL 22, 2005 Supp. 17-5004(a)(2); K.S.A. 1993 Supp. 58-1202(c); K.S.A. after previous conviction, but was not sentenced until after 1993 Supp. 17-5004; K.S.A. 2000 Supp. 58-24a01 et seq., S.B. 123 which enacted K.S.A. 2003 Supp. 21-4729. -24al 1; K.S.A. 200 1 Supp. 58-1202(c); K.S.A. 2001 Supp. District court sentenced De La Cerda consistent with law in 58-24a02; K.S.A. 2002 Supp. 58a-1008; K.S.A. 58-24a01; effect October 2002 when offense was committed. De La K.S.A. 2003 Supp. 58a-101 et seq., -901, -1006, -1106(a)(5) Cerda appealed. Appeal transferred to Supreme Court. ISSUE: Sentencing HELD: K.S.A. 2003 Supp. 65-4 160 did not take effect until Nov. 1, 2003. No statutory provision for any retroac­ tive effect on severity level of prior convictions under earlier versions of the statute. This conclusion is supported by leg­ islative history and Kansas Sentencing Commission's inter­ pretation of S.B. 123. Under facts, De La Cerda does not

46 - JUNE 2005 THEJO URNAL OF THE KANSA S BAR ASSOCIATION qualify for sentencing to certified drug abuse treatment pro­ STATEV. MAN SA W gram under KS.A. 2003 Supp. 21-4729 even though he was WYA ND OTTEDIS TRICT CO URT- AFFIRMED sentenced after Nov. 1, 2003. He did not fall into target CO URTOF APPEALS-A FFIRMED population of statute because conviction was classified as NO. 90,340 -APRIL 22, 2005 severity level 2 drug felony under KS.A. 65-4 160(6). FACTS: Mansaw convicted of possession of cocaine. STATUTES: KS.A. 2003 Supp. 21-4603d, -4705, -4729, · Court of Appeals affirmed the conviction, 32 Kan. App. 2d -4729(a), -4729(a)( l ), 65-4 160 sections (a) and (b); KS.A. 101 1 (2004). Mansaw's petition for review granted. 2002 Supp. 21-4705; K.S.A. 20-3018( c), -65-4 160, ISSUES: (1) Motion to suppress, (2) sufficiency of evi­ -4 1 60(6) dence, and (3) speedy trial HELD: Court of Appeals' opinion is adopted and STATEV.J AMES affirmed. No further discussion of any issue. WYA ND OTTE DISTRICTCO URT- AFFIRMED STATUTES: KS.A. 65-4 160(a) NO. 90,756-APRIL 22, 2005 FACTS: James convicted of two counts of first-degree pre­ STATEV. ROBERTSO N BUTLERDIS TRICTCO URT-A FFIRMED meditated murder, for which concurrent hard 50 sentences NO. 90,319 - APRIL 22, 2005 were imposed. On appeal, James claimed trial court erred in admitting photographs that were gruesome and prejudicial. FACTS: Robertson convicted of first-degree murder, arson, He also challenged constitutionality of hard 50 sentencing and aggravated burglary for killing girlfriend's mother and statute. burning mother's home. On appeal Robenson claimed: (1) ISSUES: (1) Admission of gruesome photographs and (2) trial court erred in not suppressing Robertson's statement to Hard 50 sentencing statute police, (2) prosecutorial misconduct in closing argument, (3) HELD: Under facts, no error in district court weighing insufficient evidence forfirst-degree premeditated murder, (4) probative value of photographic evidence against potential jury should have been instructed on voluntary manslaughter, for undue prejudice. Photographs were unpleasant but not and (5) cumulative error denied him a fair trial. He also gruesome. Nor were they repetitive or cumulative. claimed insufficient evidence supported hard 50 sentence, Photographs were relevant to show extent, nature, and num­ and challenged constitutionality of hard 50 sentence. ber of wounds inflicted, assisted jury's understanding of ISSUES: (1) Motion to suppress, (2) prosecutorial miscon­ medical testimony, helped pathologist explain cause of death, duct, (3) sufficiency of evidence, (4) jury instruction, (5) and proved manner and violent nature of death. cumulative error, and (6) hard 50 sentence Kansas hard 50 sentencing statute is constitutional. HELD: Under totality of circumstances, Robertson's STATUTES: KS.A. 2004 Supp. 21-4638; KS.A. 2001 motion to suppress statements ro law enforcement officers Supp. 21-4636(6) was properly denied. No misconduct in prosecutor's comments and use of over­ STATEV. JONES head projector to show jury language on premeditation WYA ND OTTEDIS TRICTCO URT factors. Language used by prosecutor was a correct and REVERSEDAN D REMANDED often-repeated statement of Kansas' law, and offered factors a NO. 91,810 - APRIL 22, 2005 jury may consider in determining whether Pattern FACTS: Jones convicted of first-degree premeditated mur­ Instructions forKansas definition of "premeditation" was der of victim found in his motel room. On appeal, Jones met. claimed trial court erred in not instructing jury on lesser­ There is ample evidence of premeditation in this case. included offense of second-degree intentional murder. He Evidence did not support instruction on voluntary also claimed state failed to prove premeditation beyond a manslaughter. Even if error could be shown, "skip rule" in reasonable doubt. State v. Horn, 278 Kan. 24 (2004), would have precluded ISSUES: (1) Jury instruction on lesser included charge reversal because jury was instructed on first- and and (2) sufficiency of evidence of premeditation second-degree murder. HELD: Despite substantial evidence of premeditation, No error forcumulati ve error claim. there was also enough evidence upon which jury could have No abuse of discretion in district court's weighing of one reasonably convicted Jones of second-degree intentional aggravating factor against the absence of any persuasive miti­ murder. Jones was entitled to instruction on that crime. gating factors. Hard 50 sentencing statute is constitutional. Reversible error not to have given that instruction. STATUTES: K.S.A. 2004 Supp. 21-4635, -4635(d), Strangulation cases in which instruction on second-degree -4636([)(3)-(5); KS.A. 21-3403(a) intentional murder was not required are distinguished. STATEV. TREMBLE Sufficient evidence for rational fact finder to find Jones DOUGLAS DISTRICT CO URT- APPEAL DISMISSED guilty of first-degree premeditated murder, thus no simple NO. 91,672- APRIL 22, 2005 reversal of the conviction is warranted. STATUTES: KS.A. 21-3401, -3601(6)(1) FACTS: State appealed on question reserved in case where Tremble waived preliminary hearing and entered guilty plea on charges involving severity level 8 felonies. State planned to use preliminary hearing to determine if amended com­ plaint should be filed to charge level 5 felonies as to any of the victims. District court did not allow state to amend the complaint, and proceeded to hear and accept plea. State

THEJO URNAL OF THEKANSA S BAR ASSOCIATION JUNE 2005 - 47 appealed on question reserved, asking for plea to be set aside ISSUES: (1) Expert testimony and mental disease or defect and case remanded for further proceeding. defense, (2) constitutionality of KS.A. 22-3220, (3) prose­ ISSUE: Appeal on question reserved cutorial misconduct, (4) jury instructions, and (5) cumula­ HELD: Record is thin as to whether state actually reserved tive error any questions at time of rulings, and issues sought to be HELD: Adequacy of expert witness' proffered testimony raised are fact-specific and not of statewide importance. regarding mental disease or defectdefense in KS.A. 22-3220 Appeal dismissed. is issue of first impression. Similar issues examined in dimin­ STATUTES: K.S.A. 2003 Supp. 21-4204(a)(4), 22- ished capacity defense. White's expert would have testified 3602(6)(3); KS.A. 8-1 603, 20-3018(c), 21-3414(a)(2)(A) that White had mental disease or defect, that people with and (B) this disease or defect can lack ability to premeditate and form intent, and that White's conduct on date of shooting was consistent with someone acting under that disease or STATE V. WHITE defect. This testimony was integral to White's theory of BUTLER DISTRICT COURT defense and its exclusion denied him a fair trial. Failure to REVERSEDAN D REMANDED give instruction on mental disease or defect was error. FACTS: White convicted of first-degree murder shooting NO. 90, 661 -APRIL 22, 2005 District court's response to jury's question is moot. of son-in-law. On appeal, White claimed trial court violated Same abrogation argument rejected in 275 White's right to present defense by refusing to allow White's Kan. 456 (2003). State v. Bethel, expert to testify, by failing to instruct jury regarding defense No need to decide claim of prosecutorial misconduct, and of mental disease or defect, and by instructing jury that repetition of prosecutorial error at new trial is highly mental disease or defect was not a defense. White also unlikely. claimed: KS.A. 22-3220 unconstitutionally abrogated the No instruction on voluntary manslaughter on basis of heat insanity defense; prosecutor's misstatements of law in closing of passion or sudden quarrel is needed unless evidence argument denied a fair trial; trial court erred in not instruct­ changes at retrial. Argument concerning confusing and con­ ing jury on heat of passion voluntary manslaughter and in flicting instructions was rejected in 272 instructing jury to consider voluntary manslaughter only if Kan. 1143 (2002), and 275 Kan. 107 (2003). State v. Robertson, jury did not agree on first-degree murder; and cumulative Cumulative error issue is moot. State v. Davis, error denied him a fairtrial . STATUTES: KS.A. 21-8403(a) and (6), 22-3219, -3220, -3601(6)(1), 60-456

Appellate Practice Reminders ...

BriefFroms ofthe Amicus Appellate Curiae Court Clerk's Office Before an brief can be filed, an application must be approved by the appropriate appellate court. The application must also be amicus curiae served on all counsel of record. Rule 6.06. An brief is to be filed no later than 30 calendar days prior to oral argument, though this See amicus deadline can be modifiedby order of the appellate courts. A party has 20 calendar days to respond to an brief Rule 6.06. The response is considered a reply brief and should have a grey amicus See cover and be no longer than 15 pages in length. Transcripts and Docketing The Kansas Supreme Court revised Rule 2.04 effective May 9, 2005, to take into account the occasional case where a transcript has been requested and completed prior to docketing. The certificate of comple­ tion should now be included with docketing if the transcript has been completed. This informs the appellate courts that a transcript was requested and finishedprior to docketing; therefore, the appeal can move into the briefingstage. Go to the Kansas Supreme Court Web site at www.kscourts.org, go to the bottom of the page, and click on "Rule Changes" to see this and other revised Supreme Court rules.

If you have any questions about these or other appellate court rules and practices, call the Clerk's Officeand ask to speak with Jason Oldham, the chief deputy appellate clerk. 785-368-7170.

48 - JUNE 2005 THE JOURNAL OF THEKANSAS BAR ASSOCIATION Court of Appeals

Civil and assert its lien rights in the property, U.S. Bank waived its redemption rights as junior lien holder, had no rights in and CHILD SUPPORT, UIFSA,AN D CHOICE OF LAW to the subject property, including redemption rights, and HALE V.HALE had no claim to the excess sale proceeds. SED GWICK DISTRICT COURT ISSUE: Did the trial court err in holding that River City, REVERSED AND REMANDED WITH DIRECTIONS as owner, was entitled to the surplus proceeds from the fore­ NO. 91,458 - APRIL 1, 2005 closure sale of the King's property and not U.S. Bank as a junior lien holder? FACTS: Linda Hale and Eugene Hale divorced in HELD: Court affirmed. Court stated that a junior lien Oklahoma in 1986. Eugene was ordered to pay child sup­ holder who has responded in a foreclosure action, and whose port of $250 per month for their 5-year-old son. Eugene lien is adjudicated by the trial court, has three rights: (1) the paid little or no child support until his son was emancipated right to offset bid its judgment at sheriff's sale to protect the in 1999. In November 2000, Linda assigned her rights to value of its lien, (2) the right to redeem the property from SRS and the Oklahoma child support order of $35,790 plus sale should the owner fail to redeem during the exclusive interest was registered in Kansas. Eugene filed a motion for a period, and (3) the right to share in surplus proceeds after rehearing. The district court entered an amended order, payment of the senior mortgage judgment. Court held U.S. which applied the Kansas statute of limitation to the arrear­ Bank's failure to participate in the foreclosure proceedings age and reduced the judgment to $11,000 plus interest from results in its position of being a holder of a $30,000 note not November 2000. now secured by the property. Court found both in law and ISSUE: Did the district court properly interpret the choice equity, chat River City as holder of the owner's rights of of law provisions of the Uniform Interstate Family Support redemption and right to excess proceeds is entitled to the Act (UIFSA) in applying Kansas law to the registration of surplus proceeds as compared to U.S. Bank and its note the child support judgment? against the Kings. HELD: Court reversed and remanded with directions. STATUTES: K.S.A. 60-24 14(6) Court held the district court misapplied the choice of law provisions in UIFSA. As between Kansas law, under which a WORKERS' COMPENSATIONAN D EXCL USIVERE MED Y child support arrearage becomes dormant after five years and WHEELER, ETAL. V.ROLLI NG DOOR COMPANY, ETAL. becomes extinguishable after seven years, and Oklahoma law, SED GWICK DIS TRICTCOU RT which has no such limitation, the plain language of KS.A. AFFIRMED IN PA RT,REVERSED IN PA RT,AN D REMANDED 23-9,604(6) requires a Kansas court to apply Oklahoma law NO. 92,325 -APRIL 1, 2005 rather than Kansas law to an unsatisfied Oklahoma child FACTS: Wheeler was employed by Smoky Hill Education support judgment. Center and worked as a site coordinator and teacher in the et se ., STATUTES: KS.A. 23-9, 101 q -9,604(6); KS.A. Kansas Starbase program at Wichita's McConnell Air Force 2004 Supp. 60-2403; KS.A. 60-2404 Base. Smoky Hill had contracted with the Kansas Air MORTGAGEFOR ECLOSURE AND REDEMP TIONRIGHTS National Guard to employ and supervise the Kansas Starbase FIDELITY BANK V.KIN G, ET AL. state director and employees. Wheeler was seriously injured SED G WICKDIS TRICT CO UR T - AFFIRMED when opening a truck hanger door while preparing for NO. 92,410 - APRIL 1, 2005 Scarbase academy. Wheeler sued the state and several defen­ dants. The claim against the state was based on negligence FACTS: James and Carol King assumed the debt and obli­ and a jury found the state 100 percent at fault. The Court of gations forreal estate in Wichita forwhich Fidelity Bank was Appeals reversed the verdict for consideration of whether the mortgage holder. The Kings executed a second mortgage Wheeler was the state's statutory employee and thus subject for $32,000 with U.S. Bank. Fidelity petitioned for foreclo­ to the Workers' Compensation Act, an issue raised by the sure after the Kings defaulted. U.S. Bank was a named state, but never addressed by the trial court. The trial court defendant and served with summons and petition. U.S. determined on summary judgment that Wheeler was not the Bank failed to answer or otherwise pled in the action. The state's statutory employee when she was injured and granted trial court foreclosed the mortgage and ordered the property an interlocutory appeal. sold at a sheriff's sale. The journal entry did not recognize ISSUES: Are there genuine issues of material fact chat pre­ any interest in U.S. Bank and stated all defendants were clude summary judgment even though both parties filed barred from interest in the property. The property sold at the motions for summary judgment? Is the workers' compensa­ sheriff's sale for $93,000. $73,092.71 was paid to satisfy tion system Wheeler's exclusive remedy? Fidelity's foreclosure judgment, and the remaining HELD: Court affirmed in part, reversed in part, and $20,407.29 was held by the court. River City filed a motion remanded. The court recognized the two ways in which a fordistribution of sale proceeds, claiming they had acquired principal will be liable to the employee of a subcontractor all right, title, and interest of the King's prior to the sheriff's under the workers' compensation system: (1) if the work sale. U.S. Bank objected and requested the proceeds as well. being performed by the subcontractor's employee is a part of The trial court held that by failing to respond to the petition the principal's trade or business; or (2) if the work being per-

THEJO URNAL OF THEKANSA S BARAS SOCIATION JUNE 2005 - 49 formed by the subcontractor's employee is that which the to KCC for further proceeding concerning competitive neu­ principal has contracted to do for a third party. The first test trality of KUSF distribution in light of court's interpretation is satisfied if the work being performed by the independent of KS.A. 66-2008(e). contractor and injured employee is necessarily inherent in STATUTES: 47 U.S.C. §§ 151 et seq., 251 -254, and an integral part of the principal's trade or business, or if 254(6)(2)(5) (2000); KS.A. 66-2001 et seq., -2008 sections the work being performed would ordinarily have been done (b) and (e), -2009 by the employees of the principal. Court determined that as RAILROAD CROSSINGAN D NE GLIGENCE a matter of law, Wheeler had carried her burden to prove LIBEL V. UNION PA CIFIC RAILROAD that the state was not her statutory employer under the first SED G WICKDISTRICT CO URT - AFFIRMED test. The state failed to come forward with evidence in either NO. 92, 696-APRIL 15, 2005 its summary judgment motion or its response to Wheeler's partial summary motion establishing a genuine issue of FACTS: Libel suffered person injuries when her automo­ material fact. Under the second test, court determined there bile ran into a Southwest Rail Industries (Southwest) railroad was some indication that the state had contracted to operate car at a crossing. Libel brought a negligence action against the Starbase program, which encompassed those duties ulti­ the Union Pacific Railroad Company (Union Pacific), which mately performed by Wheeler. Court held evidence exists maintained the crossing and operated the train, a Union that the National Guard Bureau had contracted with the Pacific employee, and later she added Southwest. Southwest state to operate the Kansas Starbase program and that the did not manufacture the rail car, but it was owned by state had in turn contracted with Smoky Hill to administer Southwest and leased to another entity at the time of the col­ the program and that Wheeler then became injured while lision. Union Pacific operated the train and Southwest did carrying out the work of the Starbase program. Court held not have any control over the railcar at the time of the colli­ that evidence raised a genuine issue of material fact as to sion. Libel claimed Southwest, knowing the attendant risks, whether the work performed by Wheeler came within the negligently failed to appropriately paint or place reflective or "contracting out contracted work" provision of workers' lighted markers on its rail car to warn persons such as Libel compensation statutes. when it blocked an unguarded rail crossing. Libel settled STATUTES: KS.A. 44-50 1(6), (g), -503(a); KS.A. 48-20 1 with Union Pacific and its employee. The district court granted summary judgment to Southwest finding Southwest PUBLIC UTILITIES had no duty to warn. BLUESTEM TELEPHONE CO. V. ISSUES: Did the district court err in granting summary KANSA S CORPORATION COMM'N judgment to Southwest? Does federal law pre-empt state law NEMAHA DISTRICT COURT on the issue of Southwest's duty to warn? Did Southwest have AFFIRMEDIN PA RT, VA CATED IN PA RT, a common law duty to provide visual warning on its rail car? REVERSED IN PA RT,AN D REMANDED HELD: Court affirmed. Court held the district court erred NO. 92,574-A PRIL 8, 2005 in holding that federal law pre-empted state law on the issue FACTS: Rural telecommunication companies challenged of Southwest's duty to warn. Court stated there is no appli­ Kansas Corporation Commission's (KCC's) distribution of cable provision in the Federal Railroad Safety Act regarding Kansas Universal Service Fund (KUSF) payments. District reflectors or other devises to make rail cars more visible, and court struck KCC's per line method, finding KS.A. 66- the trial court erred in so finding. Consequently, the district 2008(e) clearly and unambiguously required all adjustments court examined Kansas law to determine if such a cause of to KUSF support to be based on embedded costs and rev­ action may be maintained at common law. Court stated enue requirements of local exchange carriers (LECs). District Kansas common law imposes upon a railroad the duty to court also found KS.A. 66-2009 required cost-based KUSF maintain safe grade crossings, but Libel already settled with payments to carriers of last resort (COLR), and found com­ the railroad and its employee. Court stated Libel's claim petitively neutral standard of KS.A. 66-2008(6) was not met involved the owner of the rail car that was a part of the rail­ by distributions to non-LEC carriers without evaluation of road's train, not the railroad itself Court stated Libel failed cost/expense information of such companies. KCC and rural to cite any case that places upon an owner of a rail car the telecommunication companies appealed. duty to provide reflectors or similar warning devises or any ISSUES: (1) KS.A. 66-2008(e) and embedded costs, (2) case that characterizes a rail car without reflectors as carriers of last resort, and (3) audit of nonrural carriers unreasonably dangerous. Court held the common law is HELD: District court's interpretation of K.S.A. 66- ever-changing, but that Libel's case did not warrant the 2008(e) is affirmed. Statute is not ambiguous. Section (e) recognition of a heretofore undocumented cause of action. applies only to rural LECs that continue to operate on a rate Court held district court did not err in granting summary of return basis. KUSF payments to such companies must be judgment in favor of Southwest based upon the lack of a based on embedded costs, revenue requirements, invest­ common law duty to warn in these circumstances. ments, and expenses. District court's striking of KCC's per­ STATUTES: KS.A. 2004 Supp. 60-256(c); KS.A. 77- 109 line adjustment of KUSF forr ural LECs is upheld. District court lacked jurisdiction to determine calculation of COLR costs. District court's interpretation of KS.A. 66- 2009 is vacated. District court's requirement that KCC calculate KUSF payments to nonincumbent and nonrate of return carriers based on embedded costs is reversed and issue is remanded

50 - JUNE 2005 THE JOURNAL OF THE KANSA S BAR ASSOCIATION TORTS STATE V.PUC KETT LAMB V.STAT E SEDGWICKDIS TRICT CO UR T - AFFIRMED FACTS: Puckett was convicted of two counts of aggra­ SHA WNEE DISTRICT COURT-AFFIRMED NO. 92, 465 -APRIL 1, 2005 FACTS: Highway Patrol Trooper Albers left patrol car vated robbery in February 1999. He was placed on proba­ NO. 92,231 - APRIL 15, 2005 open and running during his footpu rsuit of suspect. Sheriff tion and given a presumptive underlying sentence of 64 Deputy Lamb was injured by the moving patrol car as the months, along with a 36-month period of post release super­ suspect and Albers struggled in the car. Lamb filed negli­ vision. His probation was revoked on March 10, 2000, and gence action for damages. District court dismissed the peti­ he was ordered to serve the underlying sentence. Puckett tion, finding Albers did not owe Lamb a duty of care and sought a modificationof sentence arguing he was entitled to defendants were immune under Kansas To rt Claims Act the 2000 amendments to the post release statutes and he (KTCA). should be awarded 24 months post release, effective May 25, ISSUES: Duty of Care and KTCA 2000. The district court denied the modification. HELD: District court properly dismissed the petition. ISSUES: Is Puckett entitled to a reduction in his post Unattended motor vehicle statute, K.S.A. 8-1 573, did not release supervision? Does the district court have jur isdiction create a special duty where injury occurred when highway to consider Puckett's modification? patrol car lurched forward as trooper and suspect struggled HELD: Court affirmed the district court's denial of in front seat. Albers and state are immune under KTCA. Puckett's motion for sentence modification. However, court STATUTES: K.S.A. 200 1 Supp. 75-6103, -6104, stated that all the statutes and their amendments involved in -6104(e); KS.A. 8-1573, 60-212(6)(6) the case indicate that Puckett is entitled to relief. Court stated the Legislature has provided a remedy for those sen­ tenced under the controlling statutes and penalties prior to Criminal the effective date, May 25, 2000, of the amendments to K.S.A. 22-3717. Court stated the Department of Corrections has the power to modify the period of post - STATE V.DYE R release supervision and Puckett must firstseek relief there. CRA WFORD DIS TRICT CO URT RESTITUTIONORDER STATUTES: K.S.A. 22-3427, -3717; KS.A. 2000 Supp. VA CATEDAN D CASEREMAN DED WITH DIRECTIONS 22-3717(d)(l )(B), (s), (t); K.S.A. 1998 Supp. 22- FACTS: Dyer pied no contest to three charges of felony NO. 91,447- APRIL 1, 2005 3717(d)(l )(a) theft forsteal ing money from M&M Motors in the amounts of $1,000, $852.63, and $1,000. There was no agreement at the time regarding restitution. M&M claimed Dyer stole STATEV. ROBINSON more than $250,000 (reduced by the state to $63,213.77 SA LINE DIS TRICTCO URT- AFFIRMED because of statute of limitations), plus attorney fees, account­ FACTS: Robinson was at home when police executed a NO. 91,875 - APRIL 1, 2005 ant auditing fees, related expenses, and $38,000 for loans search warrant for his apartment. Officers found a marijuana taken out by M&M to support business during the period of cigarette and drug paraphernalia. Robinson was advised of theft. Dyer suggested a restitution order of $64,937.60 his Miranda rights, waived his rights and spoke with officers would be fair and she would partially satisfy the order by at the station. Robinson confessed to smoking the marijuana surrendering her retirement plan worth nearly $46,000. The blunt found in the apartment. Robinson was convicted of district court sentenced Dyer to three six-month sent ences felony possession of marijuana and misdemeanor possession and granted probation conditioned on her paying restitution of drug paraphernalia based on his confession. He was given of $107,961.07. Dyer argued the district court could not probation. order restitution in an amount beyond the total of the value ISSUES: Did the introduction of his statements to the of the damages she pied ($2,852.63). pol ice violate the Confrontation Clause? Did the district ISSUE: Did the district court have authority to enter the court error in requiring him to pay attorney fees and costs amount of restitution? without considering his financial resources or the burden HELD: Court vacated the restitution order and remanded imposed? to the district court to enter a restitution order consistent HELD: Court affirmed. Robinson argued that he was with its opinion. Court stated that a restitution order is unable to defend himself against his own statements without predicated upon a causal link between the defendant's also relinquishing his Fifth Amendment privilege against unlawful conduct and the victim's damages. The trial court self-incrimination and this would violate the doctrine of may only order restitution for losses or damages caused by unconstitutional conditions. Court disagreed. Court stated the crimes for which the defendant was convicted unless the the Confrontation Clause does not apply when a court is defendant had agreed to pay for losses not caused directly or dealing with a defendant's confession. Court held that under indirectly by the defendant's crimes. Court held that Dyer the facts of this case, where a defendant waived his right to acquiesced to a restitution order of $64,937.60 and actually remain silent with the police and then did not object when proposed this amount as her alternative restitution plan. This his statements were used to prove his crime, and even sought is either a tacit agreement for restitution or a proposed alter­ further testimony regarding his own statements during cross­ native restitution plan that cannot now be complained of examination of the officer, there was no error in the admis­ under the invited error doctrine. sion of his confession. Court held the sentencing court must STATUTES: KS.A. 2004 Supp. 21-4603d, -4610 first tax, as costs, the amount requested by State Board of Indigents' Defense Services (BIDS) and then decide what, if

JUNE 2005 - 51

THE JOURNAL OF THE KANSAS BAR ASSOCIATION STATE V.DU HON any, amount can be collected. If at any time the defendant DOUGLAS DISTRICT COURT -AFFIRMED IN PA RT, asks for relief, the court must follow the statute and waive all REVERSED IN PA RT,AN D REMANDED or a portion of the amount taxed as the facts warrant. The NO. 91,985 -APRIL 22, 2005 inclusion of the waiver language in K.S.A. 22-4513 pre­ cludes the trial court from having to make such findings FACTS: Duhon convicted of attempted possession of a before taxation, unlike the fine statute, wh ich has such controlled substance and delivery of a controlled substance. waiver provision. The court is required to tax against the Facts included Green's acceptance of package mailed by defendant as costs all expenditures for attorney fees and Duhon and postal workers' alert to police about the package. other services, but the imposition of a fine is discretionary. On appeal Duhon claimed trial court erred in (1)no t giving Court held the defendant was no t prejudiced in any way by accomplice jury instruction, (2) not granting mistrial when the assessment of BIDS attorney fees and costs. Robinson Green commented on Duhon's prior arrest, and (3) not neither objected nor petitioned the court to waive them. His granting Duhon's motion to suppress evidence based on appeal on the matter was premature. postal authorities' seizure of package without reasonable sus­ STATUTES: K.S.A. 2004 Supp. 21-4603d(a); K.S.A. 21- picion of drug contents. Duhon also claimed speedy trial 4607; K.S.A. 2004 Supp. 22-4513(a), (b); K.S.A. 2004 violation under Interstate Agreemen t on Detainers Act Supp. 60-404, -460(f); K.S.A. 1970 Supp. 22-4513 (IADA) and claimed use of prior history to assign criminal DISSENT: Judge Greene concurred on the issue of the history was unconstitutional. Confrontation Clause, but dissented on the issue of taxation ISSUES: (1) Accomplice testimony, (2) comment on prior of costs and fees. Greene stated the statutes must be inter­ arrest, (3) motion to suppress, ( 4) Interstate Agreement on preted as imposing a requirement upon the district court to Detainers Act, and (5) criminal history consider the financial circumstances of a defendant as a con­ HELD: Although Green did not request drug shipment, dition of any assessment of fees. Greene would reverse the she became an accomplice when she accepted package know­ district court's assessment of fees. ing its contents. The failure to give accomplice jury instruc­ tion prejudiced Duhon and requires a new trial. Conviction CITY OF DODGE CITY V.IN GRAM is reversed. FORD DISTRICT COURT - REVERSED Under facts, trial court correctly refused motion for mis­ NO 91,710- APRIL 15, 2005 trial where Green's statement was unsolicited by the state, FACTS: Ingram appealed from jury conviction of driving jury was admonished, and there were no additional mention under the influence. He claimed (1) officer's comments on of Duhon's prior arrest or convictions. preliminary breath test violated order on motion in limine Under totality of circumstances, there was reasonable sus­ and required a mistrial; (2) breath test results were improp­ picion to warrant removal of package from mail stream. erly admitted without proper foundational requirements for Narcotics package profile used by U.S. Postal Service is the testing· machine; (3) trial court erred in not giving detailed. No error in denying Duhon's motion to suppress. requested instruction under K.S.A. 8-1002(6); and (4) pros­ No speedy trial violation dating from Duhon's notice in ecutorial error denied a fair trial. compliance with IADA. His earlier communication with ISSUES: (1) Motion for mistrial, (2) admission of breath Douglas County did not start running the 180 days. test results, (3) jury instruction, and (4) prosecutorial mis­ Criminal history claim is mooted by reversal and remand conduct for new trial, and would be otherwise controlled by State v. HELD: Under facts, no abuse of discretion in denying Ivory, 273 Kan. 44 (2002). motion for mistrial. STATUTES: K.S.A. 22-4401 et seq. Record shows that certification for both the Intoxilyzer and the administering officer were admitted into evidence, and Ingram conceded as much during trial. No merit to claim that breath test results were improperly admitted. Software to help lawyers work. Requested instruction was no t warranted under facts. City concedes that two comments by prosecutor during • More than 120 business agreement closing argument were improper. Notwithstanding direct templates $20 each. and overwhelming evidence of guilt, error was not harmless. Prosecutor's suggestion that defense counsel thought jury • More than 50 actual signed license were foolsand lacked common sense was highly prej udicial. agreements in PDF format $295. Prosecutor's encouragement for guilty verdict so that officers • All in MS WORD Format. will stop erratic drivers was calculated to inflame passions and prejudices of the jury, and trial court endorsed this argu­ • Purchase once, use as many times as ment by overruling of lngram's objection and not instructing you like. jury to disregard the improper comments. Reversed and remanded for new trial. • Customize for your own library. STATUTES: K.S.A. 2002 Supp. 8-1567; K.S.A. 8- 1002(6), 22-3423(l)(c), 60-261 Go to www.smartagreements.com SMARTTEXTfor detailsCORPORATION SINCE 1993

52 - JUNE 2005 THE JOURNAL OF THEKAN SA S BAR ASSOCIATION CLASSIFIED ADVERTISEMENTS

I I ,____ P_o _s_n_i_o_N_s _A_v._'AI_LAB_L_ E__ ___. I... ___ P_ o_s_i _T_m _N_s_ A_v._'AI_LAB_L_ E__ ___. ...___ P_o _s_1T_1_o _N_s _A_v._'AI__LAB_L_E__ I ___. ATTORNEY Wa llace, Saunders is seeking LEGAL SECRETARY Kansas Legal MEDIATOR Kansas Legal Services, a applicants with 1-3 years of litigation expe­ Services, a statewide nonprofitla w firm, statewide, nonprofit law fi rm, seeks a rience fo r employment at its Overland Park is seeking full- or pare-time legal secretary full-time person to provide a variety of office. Preferably licensed in both Kan. and co work in our Independence satellite mediation services, including civil rights, Mo. Send resume to Wallace, Saunders, et offi ce approximately 20 hrs/wk. Legal, employment, domestic, child dependency, al. , l O 111 W. 87th St., Overland Park, KS secretarial, and organizational skills and ocher mediation services throughout 66212; or fax to (913) 888-1065, Attn: required with a working knowledge the state. This position is based in Wichita. Barry Warren. of computers/word processing. Spanish Position requires solid mediation experi­ bilingual a plus. Salary DOE. Paid ence and Kansas Offi ce of Judicial SMALL/AV/GENERAL PRACTICE firm employee benefits include health, dental, Administration mediator certification in in Wichita is anticipating expanding with life, and disability. Send resumes co both civil and domestic mediation at mini­ the addition of an attorney. Primary areas Eric Rosenblad, Manager, Kansas Legal mum. Muse have ability to travel within the of practice will include commercial litiga­ Services, P. 0. Box 1509, Pi mbu rg, KS state of Kansas. Salary DOE. Paid tion, some general business and corporate 66762 or e-mail [email protected]. employee benefits include health, dental, matters, and real estate transactions and EOE & Affirmative Action Employer. life, and disability insurance. Send resume land use. Qualified applicants will be able www.kansaslegalservices.org and cover letter to Randy Hershey, to demonstrate leadership abilities and Midland Mediation & Settlement Services, significant academic or professional CHIEF FINANCIAL OFFICER A 712 S. Kansas Ave., Suite 400, To peka, KS accomplishment. Preference will be given statewide nonprofitlaw firm in To peka is 66603. EOE and Affirmative Action to experienced attorneys, although highly seeking a detail-oriented and dedicated Employer. qualified graduating students will be individual to join our team as the chief r considered. Submit resume, or direct financial offi cer. Responsibilities include SECRETARY - Public interest law fim additional inquiries, to: Box A2, Kansas management of four staff, including all seeks fu ll-time secretary who will also func­ Bar Association, 1200 S.W. Harrison, aspects of financial operational perform­ tion as back-up receptionist. Must be self­ To peka, KS 66612 ance and maintenance of customer rela­ mocivaced, customer service oriented, and tions. Must be professional, analytical, and enjoy working in a fast-paced office. Basic WORKERS' COMP ATTORNEY posi­ enjoy a fast-paced environment. CPA pre­ computer knowledge and use of MS Word tion available for attorney with 2-5 years fe rred. Auditing experience a plus. Salary required. Starting salary DOE w/fringe workers' compensation/insurance defense based on experience and qualifications. benefits, including paid health/life/ experience in the Wichita office of Wa llace, Comprehensive employee benefitpack age. dental/disability/parking. Send resume to Saunders, Austin, Brown & Enochs Chtd. E-mail resume with salary requirements to Kim Sharicz, Kansas Legal Services, 707 Must be licensed in Kansas. Good academ­ [email protected] or mail to Marilyn Minnesota Ave., Suite 600, Kansas City, KS ics and work ethic required. Wallace Rohrer, Kansas Legal Services, 712 S. 66101 or fax (9 13) 621-3817. EOE Saunders offers a competitive salary with an Kansas Ave., Suite 200, To peka, KS 66603. excellent benefitpa ckage. Send resume and For more information see Web site at cover letter to Wa llace, Saunders, et. al. , www.kansaslegalservices.org. (Classifieds continued on next page) Attn : Douglas C. Hobbs, 1900 Epic Center, 301 N. Main, Wichita, KS 67202; CORPORATE ATTORNEY or faxto (316) 269-2479. A NATIONAL MANUFACTURING COMPANY STAFF ATTORNEY headquartered in a mid-size metro position available for area near the Ozark Mountains offers an uncommon opportunity to practice law in a staffatto rney in the Wichita office of high quality of life environment. We have facilities in many states and a significantshar e Wallace, Saunders, Austin, Brown & of national market but are closely held and managed for the long term. Join five attor­ Enochs Chcd. Candidates should have at neys in a growth-oriented, market-based organization providing an opportunity to work least 2-5 years work experience, preferably on acquisitions and transactions, as well as the full range of legal issues typical of in che insurance defense/litigation area of manufacturing companies. law. Muse be licensed in Kansas. Good aca­ demics and work ethic required. Wa llace We will consider a person who showed excellence in law school and has at least five Saunders offers a competitive salary with an years' business law or litigation experience. Excellent analytical, drafting, negotiation, excellent benefitpa ckage. Send resume and communication, and interpersonal skills are essential. Experience focused on litigation, cover letter to Wa llace, Saunders, et. al. , transactions, human resource, or environmental law is desirable. We offer very Attn. Douglas C. Hobbs 1900 Epic Center, competitive cash compensation plus excellent fringe benefits. Please send resume detail­ 301 North Main, Wichita, KS 67202; or ing your qualifications and salary history to: fax to (316) 269-2479. Rick Bayless TA MKO RoofingProducts, Inc. P. 0. Box 1404, Joplin, MO 64802-1404 [email protected] All repliesheld in strict confidence.

JUNE 2005 - 53 THE JOURNAL OF THE KANSA S BAR ASSOCIATION CLASSIFIED ADVERTISEMENTS

ExP__ S ___P_o _s_IT_1_o_N_s_N._Y,_'.A _LI __ABL_ E __... I ...I ____ RE_ F_E_RRALS______...I L,.I ___ E_R_T_W_i_T_N _E_s___ _. ASSOCIATE ATTORNEY FORMER EIGHTH CIRCUIT COURT EXPERT WITNESS MANUFACTURING, - Medium­ OF APPEALS PACKAGING, AND ENGINEERING. sized general practice firm- Hays, Kansas, law clerk with 16 years of seeks attorney willing to practice in the appellate litigation experience is available for Product liability covering pharmaceuticals, areas of criminal law, family law, plaintiff appellate referrals or consultation. Contact foods, medical devices, and industrial prod­ personal injury, and other areas. Salary and Thomas Sheehan at (91 3) 461 -3648 or uces. Produce/package design and develop­ benefits negotiable. Replies should be sent e-mail [email protected] ment, fe deral agencies policies and standards, to PO. Box 727, Hays, KS 67601. LEGAL RESEARCH AND WRITING. a nd environmental hazards. Conatech Consulting Group Inc., 287 N. Lindbergh Research attorney available for memos, briefs, Blvd., Suite 208, Creve Coeur, MO 63141- or informal research. Pay by the hour or on a 7849. Phone: (314) 995-9767, Fax: (314) A O Y S RVICES TT RNE E project basis. Carolyn R. Simpson, 995-9766. Attorney at Law LLC (785) 979-4353 or EXPERIENCED ATTORNEY with excel­ e-mail [email protected] F SA lent legal research and writing skills is avail­ PATENTS, TRADEMARKS, AND oR LE able to assist overworked solo practitioners COPYRIGHTS. and small firms. I provide prompt, profes­ Ac Erickson and Kleypas THE LAWBOOK EXCHANGE, LT D. sional service at reasonable races. References LLC, our practice focusesex clusively on intel­ are available upon request. Call or e-mail lectual property matters, including the buys, sells, and appraises all major lawbook Shelley Patterson at (8 I 6) 204-7949 or acquisition, maintenance, licensing, and sets. Also, antiquarian, scholarly. Reprints Shelley. Patterson@sspatterson-law. com enforcement of parents, trademarks, and of legal classics. Catalogues issued in print copyrights. Please contact us if you have a and online. Mastercard, VISA, and AmEx. ELECTRONIC CASE FILING ASSIS­ client needing assistance with an incelleccual (800) 422-6686; fax: (732) 382-1 887; TANCE. Electronic filing is now mandatory in property issue. Call or e-mail www. lawbookexchange.com bankruptcy court. We can help you keep your Sean Bradley at (816) 753-6777 or clients regardless of your electronic filing capa­ [email protected] ty KANSAS LAWYERS ASSISTANCE bili . ECF provides electronic case filing serv­ 30 PERCENT REFERRAL FEE!! PROGRAM ices, software, hardware, and training solutions. Attorney needs lawyers who under­ Call ECF (316) 262-8098. Ask forLi z or Eric. with eight years' experience has recencly stand or have benefited by "recovery," to become of counsel at Powell, Brewer and act as peer volunteers in helping fellow OVERWHELMED WITH RESEARCH/ Reddick LLP and is crying to add to her WRITING WORK? lawyers who are impaired by substance Lee me help! Experienced client base. If you have clients who need rep­ abuse, depression, burnout, or other dis­ attorney is available for research/writing assign­ resentation in medical malpractice, personal abilities. If interested please call Executive ments. Visit www.anglinlawoffice.com and injury, produce liability, or workers' compen­ Director Don Zemites at the 1-888-342- contact Stephanie Anglin at (9 13) 484-3174 or sation licigacion, please give Shari Willis a call 9080. Complete Confidentiality sanglin@earchlink. nee at (3 I 6) 265-7272.

One Hot Deal! Kansas Bar Association Members can now receive FREE classified ads (up to 75 words) in the Journal!

Contact Susan McKaskle, managing editor, at (785) 234-5696 or at [email protected] for details and deadlines.

54 - JUNE 2005 THEJO URNAL OF THE KANSASBAR ASSOCIATION KBA CLE REGISTRATION FORM Name: ______KBA#: ______C Address: ______City: ______State: ___ Zip: ____ [ Phone: ______Fax#: ______E-mail: ______Charge to: MC VISA AMEX ------,------,------cADDREss IF DIFFERENT FROM NORMAL MAILING ADDRESS ABOVE) Account #: ______Exp. Date: ______Date Description Class Early Bird Member Non-Member Number Date Price Price Price D June 17 Legislative & Case Law Institute (8 CLE credit hrs., includes 2 prof. resp. hrs) 6/1 0 D Overland Park - Ritz Charles # 3770 A.M. $130 $170 $235 D Topeka - KBA Headquarters # 3771 P. M. $130 $170 $235 D Wichita - Metro. Complex # 3772 Both $209 $245 $310 D June 24 Bankruptcy Update (6 CLE credit hrs., includes 1 prof. resp. hr.)* 6/1 5 Overland Park - Holiday Inn #3765 $159 $1 79 $229 D June 25 Legislative & Case Law Institute (8 CLE credit hrs., includes 2 prof. resp. hrs) 6/1 8 See A.M. $130 $1 70 $235 Below P.M. $130 $170 $235 Both $209 $245 $310 D Atchison #3773 D Emporia #3780 0 Liberal #3787 D Pratt #3794 0 Chanute #3774 D Garden City #3781 0 Manhattan #3788 0 Salina #3795 D Coffeyville #3775 0 Goodland #3782 0 Marysville #3789 D Topeka #3796 D Columbus #3776 D Great Bend #3783 0 Oakley #3790 D Wa shington, DC #3797 D Concordia #3777 D Hays #3784 0 Overland Park #3791 D Wichita #3798 D Dodge City #3778 D Hutchinson #3785 0 Phillipsburg #3792 D Winfield # 3799 D El Dorado #3779 D Lawrence #3786 0 Pittsburg #3793 D June 27 Brown Bag Ethics Video Replay (2 CLE credit hrs., includes 2 prof. resp. hrs.) 6/20 Topeka - KBA Headquarters #3800 A.M. $59 $69 $79 #3801 Midday $59 $69 $79 #3802 PM. $59 $69 $79 D June 28 Fair Debt Video Replay (3 CLE credit hrs., includes 2 prof. resp. hrs.) 6/21 D Overland Park - KU Regents Ctr. #3808 A.M. $79 $99 $129 0 Topeka - KBA Headquarters #3807 0 Wichita - Metro. Complex #3809 D June 28 Brown Bag Ethics Video Replay (2 CLE credit hrs., includes 2 prof. resp. hrs.) 6/21 0 Dodge City - Rebein Bangerter #381 1 Midday $59 $69 $79 D Overland Park - KU Regents Ctr. #381 2 D Topeka - KBA Headquarters #3819 D Wichita - Metro. Complex #3810 D Topeka - KBA Headquarters #3803 P. M. $59 $69 $79 D June 29 Brown Bag Ethics Video Replay (2 CLE credit hrs., includes 2 prof. resp. hrs.) 6/22 D Overland Park - KU Regents Ctr. #3813 A.M. $59 $69 $79 D Phillipsburg - Huck Boyd Center #3818 D Topeka - KBA Headquarters #3805 D Wichita - Metro. Complex #3814 D June 29 Fair Debt Video Replay (2 CLE credit hrs., includes 2 prof. resp. hrs.) 6/22 D Overland Park - KU Regents Ctr. #3816 P. M. $79 $99 $129 D Topeka - KBA Headquarters #3815 0 Wichita - Metro. Complex #3817 D June 30 Legislative & Case Law Institute (8 CLE credit hrs., includes 2 prof. resp. hrs) 6/23 D Topeka - KBA Headquarters # 3806 A.M. $130 $170 $235 P.M. $130 $170 $235 Both $209 $245 $310 FOR UP-TO-DATE SEMINAR INFORMATION GO TO WWW.KSBAR.ORG/PUBLIC/cLE.SHTML. KANSAS BAR ASSOCIATION - (785) 234-5696 FAX - (785) 234-3813 *Pending CLE credit approval • This form may be photocopied and faxed to (785) 234-3813 Working together to take you where you want to go.

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