THE OURNAL of the Bar Association March 2005 • Volume 74 • No. 3 Kansas Bar Association Districts Let Your Voice •--t--flverland be Heard! Park

KBA Board of GovernorsRe presentatives PRESIDENT: YOUNG LAWYERS SECTION PRESIDENT: Thomas E. Wright Michael P. Crow Eric G. Kraft (785) 232-2200 Topeka (913) 682-0166 Leavenworth (913) 498-3536 Overland Park [email protected] [email protected] [email protected] DISTRICT 6: PRESIDENT-ELECT: KDJA REPRESENTATIVE: Gabrielle M. Thompson Richard F. Hayse Hon. Patricia A. Macke Dick (785) 537-2943 Manhattan (785) 232-2662 Topeka (620) 694-2972 Hutchinson [email protected] [email protected] dick@ourtownusa. net DISTRICT 7: VICE PRESIDENT: DISTRICT 1: Laura L. Ice David J. Rebein Thomas J. Bath Jr. (316) 660-1258 Wichita (620) 227-8126 Dodge City (913) 652-9800 Overland Park [email protected] [email protected] [email protected] Rachael K. Pirner SECRETARY-TREASURER: Timothy M. O'Brien (316) 630-8100 Anne Burke Miller (913) 451-6060 Overland Park Wichita (785) 539-6500 Manhattan [email protected] [email protected] [email protected] Hon. Stephen N. Six Mary Kathryn "Kathy" Webb EXECUTIVE DIRECTOR: (785) 832-5258 Lawrence (316) 263-5851 Wichita JeffreyAlderman [email protected] [email protected] (785) 234-5696 Topeka [email protected] DISTRICT 2: DISTRICT 8: Gerald R. Kuckelman Trish Rose IMMEDIATE PAST PRESIDENT: (913) 367-2008 Atchison (620) 663-7131 Hutchinson Daniel J. Sevart [email protected] [email protected] (316) 269-4215 Wichita [email protected] Jeffrey S. Southard DISTRICT 9: (816) 329-8527 Lawrence Hon. Kim R. Schroeder KBA DELEGATES TO ABA: [email protected] (620) 428-6500 Hugoton Linda S. Parks [email protected] (316) 265-7741 Wichita DISTRICT 3: [email protected] Hon. Rawley J. "Judd" Dent DISTRICT 10: (620) 330-1080 Independence Glenn R. Braun Hon. David J. Waxse chiefjudge@l 4thjud icialdistrict-ks.org (785) 625-6919 Hays (913) 551-5434 Kansas City [email protected] judge_ [email protected] DISTRICT 4: William A. Taylor III DISTRICT 11: KANSAS DELEGATE TO ABA: (620) 221-1120 Winfield [email protected] Melissa A. Taylor Thomas A. Hamill (913) 551-5405 Kansas City (913) 491-5500 Overland Park [email protected] [email protected] DISTRICT 5: Martha J. Coffman DISTRICT 12: ABADELEGATE AT LARGE: (785) 271-3105 Topeka [email protected] Michael A. Williams Hon. Christel E. Marquardt (816) 292-2000 Kansas City, Mo. (785) 296-6146 Topeka [email protected] marquardt@kscourts. o rg THJ�theJ 2YB���i� March 2005 • Volume 74 • No. 3 ITEMS OF INTEREST REGULARFEATURES 5 6 Supreme Court Rule 707 - 4 President's Message Reinstates Reciprocal Application Fees 12 Law Students' Corner Admission 14 Young Lawyers Section News 15 Members in the News 8 Executive Director's Notes 15 Dan's Cartoon Saying Thanks to new Friends 16 Obituaries 34 CLE Docket 1 0 Member Profile: Legal Career and 36 Appellate Decisions Motherhood are not Mutually 44 Appellate Practice Reminders Exclusive forWichita Attorney 45 Classifieds

20 The Kansas Residential 11 KBF IOLTA ... Making a Difference Construction DefectAct: A Cover photo: The Old Dutch Mill was origi­ Schematic Blueprint forRepairs nally builtin 1879 on the Schonhojffarm near Wamego, Kan. It was moved piece by piece and By WyattA. Hoch 13 2005 KBA Nominating Committee reconstructedat its present location in the Nominations Wamego City Parkcirca 1924. Photo by Susan McKaskle, KBA managing editor. 17 Access to Justice Grant Applicants Giving Notice Sought otTon Clalmsto MunlclpaliUes Under 18 KBA Committees and Sections Seek Coming in April: 11.S.A.12-105bldl Volunteers Annual Meeting 24 Use it or Lose it - Giving Registration Notice ofTort Claims to 35 2005 KBA Annual Meeting At-a­ Municipalities Under K.S.A. Glance Information! 12-105b(d) By Teresa L. Sittenauer

Our Mission: The Journal Board of Editors The Kansas Bar Associarion is dedicated ro advancing the profossionalism and legal skills of Connie Hamilton Topeka lawyers, providing services to its members, serving the community through advocacy of Mark D. Hinderks Overland Park public policy issues, encouraging public understanding of rhc law, and promoting rhe Ass1s·1;1NT EXECUTIVE DrnECIUR: RcnC Eichcm Evan Ice Lawrence effective adminisrr;irion of our system of justice. MANAGING EDITOR: Susan McKaskle Michael T. Jilka Kansas City Mana F. Linenberger Carbondale f The Journal o the KflnsflS Bar Associfltion is published monrhly with combined issues for Diane S. Worth, CHAIR Wichita Hon. Tom Malone Topeka July/August and November/December for a total of 10 issues a year, Periodical Posrage Rares Hon. Steve Leben, VICE�Cl-!Alll Olathe Michelle Masoner Kansas City paid ar Topeka, Kan., and at additional mailing offices. The journal of the Kansas Bar Gregory L. Ash Lawrence 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) 234- Hon. Monti L. Beier \Vichita Hon. Lawron R. Nuss Topeka 38 I 3. Member subscription is $25 a year, which is included in annual dues. Nonmember Terri Savely Bezek Topeka Hon. James I� O'Hara Overland Park subscription rare is $45 a year. POSTMASTER: Send address changes to The jonmal of the Hon. Donald \Y./. Bostwick \Vichita Prof. John Peck Lawrence Kamas Bar Association, l'O. Box I 037, Topeka, KS 66601-1037. Boyd Byers \f/ichita Mary D. Prewirr Topeka Hon. Nancy M. Caplinger Topeka Richard D. Ralls Kamm City Tamara Lee Davis Dodge City Michelle R. Mahieu Dodge City The Kansas Bar Association and the members of the Board of Edirors assume no Hon. jerry Elliott Topeka Prof. David L. Ryan Topeka responsibiliry for any opinion or statement of fact in the substantive legal arricles Mary Feighny Topeka Richard 1-1. Seaton Manhattan published in The joumalof the Kans/lsBar Associmion. Autumn Fox Abilene Marry M. Snyder Topeka J. Lyn Enlrikin Goering 7opeka Jeffrey A. Wierharn Topeka Publication of advcrrisemcnrs is nor ro be deemed an endorsemenr of any producr or service Dan Gronnigcr Topeka Martha Coffman, board liaison Topeka advertised unless otherwise indicated. f COPYRIGHT 2005 Kansas Bar Association,Topeka, Kan. Diane S. Worth, Board o Editors chairperson, [email protected] Susan McKaskle, managing edito1; smckaskle@ksba,:org FROMTHE PRESIDENT MICHAEL P. CROW Reciprocity and Pro Hae Vice and SCR 1601 (The Marriage Amendment)

s you know, the SCR 1601 (The KBA proposed and Kansas Bar Calls on Members to Serve Marriage Amendment) has been diligently Military Reservists and National Guard advocating a Kansas Su­ A resolution to amend A the Kansas or U.S. con­ preme Court Rule to allow As Kansas National Guard and military reservists con­ for reciprocity with other tinue to be called to active duty, many worry about stitutions is a significant jurisdictions so that quali­ event lawyers. A number their families and details of unfinished business. In of years ago, I attended an fied Kansas lawyers may be response, the Kansas Bar Association is once again to admitted to practice law in ABA Annual Meeting in mobilizing its members to take some of the worry out London and had the oppor­ other jurisdictions (in par­ of leaving home. ticular surrounding states) tunity to talk with several English Barristers. without having to take The KBA has reactivated its "Project Call Up" program, another bar examination. 1990-91, One asked me, "How can which was originally initiated in _during �he you Yanks practice law See my President's Message, "Desert Storm" conflict. Project Call Up 1s a service Vol. 73, No.9, Page 4. under a written constitu­ where KBA members volunteer to draft basic wills and tion?" He was joking, of I am pleased to announce durable powers of attorney for the families of those that reciprocity (admission course, knowing full well affected by the war. These free legal services will_ be pro­ that an American lawyer without written examina­ vided to those who are on alert or called to active duty. tion) will become a reality could not imagine how you on July 1, 2005. The new could possibly practice law "The members of the Kansas Bar Association are com­ in a jurisdiction without a Kansas Supreme Court mitted to helping and honoring fellow citizen w�o Rule is based on the pre- �, written constitution. An serve our country and sacrifice for all of us, said amendment to our constitu­ 1987 rule to include mutu­ Michael Crow, president of the KBA. ality of admission with tion requires careful scrutiny. other jurisdictions; five (5) As you know, the Kansas Volunteers are still needed for this important program. Legislature has considered years of active practice For more information, just call Bar headquar ers at of law preceding applica­ � amending our state consti­ (785) 234-5696 or visit the KBA Web site at tution restricting marriage. tion; a $1,250 fee; as well as www.ksbar.org. a review by the Board of In mid-January, the KBA Law Examiners. The new Legislative Committee and rule is consistent with sur- the Board of Governors rounding state jurisdictions. A copy of the rule is published debated whether a position should be taken on SCR 1601 and, if so, whether to support or oppose. 011 the following page and can be found on the KBA Web site at www.ksbar.org. For admission requirements or ?1ore I am a member of the Legislative Committee. At its meet­ information, just visit the Kansas Judicial Branch Web site at ing, a motion was made that the committee should recom­ www.kscourts.org. mend to the Board of Governors to oppose SCR 1601. . . By the way, the new pro hac vice rule will require a $100 Discussion centered on whether it would be wiser for the KBA not take a position. By a close eight seven vote, per case fee from the out-of-state lawyer. . The input of the KBA members was important on adop- the Legislative Committee proposed to the Board of Governorsto to oppose SCR 1601. to tion of reciprocity. Thank you! . . . . The KBA appreciates the wisdom and ded1eat1on to JUStice Because the amendment had already passed the Senate, hearings would be scheduled in the Ho se. The Board took of the Kansas Supreme Court as well as its confidence in the _ � up the issue by phone am, the focus was n lawyers of Kansas. . and e-mail. A� ? whether it would be wiser not get involved. After consid­ erable soul-searching, the board voted oppose SCR 1601. to to(continued on page 7) 4 - MARCH2005

THEJOURNAL OF THEKANSAS BAR ASSOCIATION Kansas Supreme Court Reinstates Reciprocal Admission

n Jan. 28, 2005, Chief Justice Kay McFarland signed an order chat reinstates reciprocal admission in Kansas. 0 Applications for admission to the Kansas bar without written examination, along with the $1,250 application fee, will be accepted forfi ling in the appellate court clerk's offi ce on and afterJ uly 1, 2005. The application form will be available online at www. kscourts.org and through the clerk's office on June 1, 2005.

IN THE SUPREMECOUR T OF THE STATEOF KANSAS RULES RELATING TO ADMISSION OF ATTORNEYS RULE 703 ADMISSION TO THE BAR WITHOUT WRITTENEXA MINATION Supreme Court Rule 703 is hereby adopted, effective July 1, 2005:

(a) Any applicant foradmi ssion to the bar of Kansas who was duly admitted to the practice of law upon written exami­ nation by the highest court of another state or in the District of Columbia may be admitted to practice in this state with­ out written examination, upon showing that the applicant: (1) is licensed in at least one jurisdiction that permits mutuality of admission without examination for members of the Kansas bar; (2) has never failed a written Kansas bar examination; (3) presently meets the requirements of Rules 702 and 704 to take the Kansas bar examination; ( 4) has never received professional discipline of suspension, disbarment, or loss of license in any other jurisdiction; (5) is not currently the subject of a pending disciplinary investigation in any other jurisdiction; (6) is a person of good moral character and mentally and emotionally fit to engage in the active and continuous practice of law; and (7) has been lawfully engaged in the active practice of law outside the State of Kansas, or in Kansas under Rule 706, forfive of the seven years immediately preceding the date of his or her application. For purposes of this rule, the "active practice of law" shall include the following activities: (i) Representation of one or more clients in the practice of law; (ii) Service as a lawyer with a local, state, or federal agency, including military service, with the primary duties of furnishing legal counsel, drafting legal documents and pleadings, interpreting and giving advice regarding the law or preparing, ttying or presenting cases beforec ourts, departments of government or administrative agencies; (iii) Service as corporate counsel with the same primary duties as described in subsection (7) (ii) above; (iv) Employment as a teacher of law at a law school approved by the American Bar Association throughout the applicant's employment; (v) Service as a in a federal, state, or local court, provided that such employment is available only to licensed attorneys; (vi) Service as a judicial law clerk; or (vii) Any combination of the above. Applicants shall furnish such proof of practice as may be required by the Board of Law Examiners.

(b) Each applicant to the bar without written examination shall pay an application feea s provided in Rule 707 and shall file in duplicate on forms approved by the Supreme Court and procured from the Clerk of the Appellate Courts: (1) a verified petition foradmi ssion, (2) such other and further information as the Board of Law Examiners or the Disciplinary Administrator's Office may require in the consideration of his or her application, and (3) a designation of the clerk of the appellate courts fors ervice of process.

(c) The Board of Law Examiners shall review each application under this rule and, if deemed necessary, shall interview each applicant and will report its findings and recommendations in writing to the Supreme Court. The Board retains full authority to conduct investigations and hearings pursuant to Rule 704 in the course of its review.

(continued on nextpage)

THEJO URNAL OF THEKANSAS BAR ASSOCIATION MARCH 2005 - 5 RULE703 Admission to the Bar Without Written Examination (continued frompage 5)

(d) When the Board recommends denial of an application under this rule, its recommendation shall be submitted to the Supreme Court and a copy thereof shall be filed with the Clerk of the Appellate Courts, who shall thereupon mail or oth­ erwise furnish a copy to the applicant. The applicant may, within rwenty days of the filing thereof, fileexceptions to the recommendations of the Board. Upon request by the Court, the Board will file a response to any such exceptions within rwenty days following such request. The Supreme Court will then make a final determination based upon the record, exceptions and response, if any, and enter its final order. Any applicant whose application under this rule is denied by the Supreme Court by reason of lack of good moral character shall not be permitted to reapply in this State under any rule until three years shall have elapsed fromthe date the previous application was denied by the Court.

(e) When an application under this rule is granted by the Supreme Court, the applicant shall appear beforethe Clerk of the Appellate Courts to take the oath and sign the roll of attorneys. The Clerk shall thereafrer issue applicant a certificate of authority to practice law in this State.

By order of the Court, this 28th day of January 2005. Kay McFarland, Chief Justice

IN THE SUPREME COURTOF THE STATE OF KANSAS RULES RELATING TO ADMISSIONOF ATTORNEYS RULE 707 APPLICATIONFEES

Supreme Court Rule 707 is hereby amended, effective July 1, 2005.

(a) Each applicant shall pay application fees foreach of the following, which feesmay not be waived and shall not be refunded: (1) Legal intern, $50. (2) Temporary permit to practice law under Rule 705, $100. (3) Admission to the bar upon written examination under Rule 704, $400. (4) Admission to the bar without written examination under Rule 703, $1,250. f4till Special tempora1y permit to practice law under Rule 706, $750 plus the amount of the current charge forthe investigation and report of the investigating body or organization selected by the Board of Law Examiners. ffi_(.fil Reapplication for an individual whose application to tal<:ethe bar examination has been previously denied for failure to establish good moral character or fitness, $750. The amount of the feefor each of the foregoing categories shall be that established by order of the Supreme Court and may be changed fromtime to time. Applicants shall be advised as to the amount of the feesthen applicable upon inquiry to the Clerk of the Appellate Courts.

(b) Applicant fees shall constitute a fund to be known as the bar admission feefund. Disbursements forcompensation and expenses in connection with the duties of the Board shall be from this fund. By order of the Supreme Court any unused balance in the bar admission feefund may be applied to such appropriate usage as shall be determined by the Supreme Court.

By order of the Court, this 28th day of January 2005. Kay McFarland, Chief Justice

6

- MARCH 2005 THEJO URNAL OF THEKANSA S BAR ASSOCIATION Reciprocityand Pro Hae Vice (continuedf rom page 4) I support the position of the Legislative Committee, as well as the Board of Governors. A proposal to amend the Kansas Constitution, especially when state law and court decisions already address the issue, would seem unnecessary. It is of particular concern when the proposed constitutional amendment restricts the rights of individuals. The KBA position was not adopted as a comment on existing law, but Annual Bankruptcy rather because of the potential effect of constitutionally fore­ Institute closing the possibility of the future extension of rights to a featuring the Kansas Bankruptcy minority group of citizens, which would be an unprece­ dented use of the Kansas Constitution. April 1, 2005 In the end, the House passed the resolution, assuring that SCR 1601 will be on the statewide ballot in April. 830 registration A key provision in the proposed amendment to the Kansas Lunch included Constitution that has stirred debate among lawyers states, KU Memorial Union Ballroom "No relationship, other than marriage, shall be recognized Lawrence, Kansas by the state as entitling the partner to the rights or incidents of marriage." "Verygood and highly enjoyable seminar that Whether you oppose or support SCR 1601, as a lawyer teaches information and techniques the your opinion is respected. We urge you to express your posi­ practitioner will actually use." tion on this issue in your community. Our KBA legislative counsel, Jim Clark, has a wealth of information, both pro Early bird member rate $169 Regular member rate 189 and con, and can get you copies of written presentations to the House committee. Feel freeto contact Jim at (785) 234- Nonmember rate: $229 5696 or via e-mail at [email protected] or give me a call at (913) 682-0166 or e-mail me at [email protected]. ■ To register, call the KBA at (785) 234-5696 or log on to www.ksbar.org/public/cle.shtml

A note fromth e Kansas CLE Commission

Southwest Kansas: MARK YOUR CALENDAR

April 7, 4:30 - 6:30 p.m. in Dodge City

Members of the Kansas Continuing Legal Education Commission will be hosting a come-and-go reception at the Depot Theater in historic Dodge City on April 7 for attorneys in the area. Plan to attend anytime be­ tween 4:30 and 6:30 p.m. to visit with the commission about procedures and CLE issues concerning you and your practice. Light appetizers and beverages will be served. The commission members look forwardto this opportunity to interact with members of the Southwest Kansas Bar Association and their colleagues. The commission will hold its quarterly meeting in Dodge City the following day.

If you have questions, but are unable to join the commission on April 7, please feelfree to contact them by e-mail at [email protected] or by phone (785) 357-6510.

THEJO URNAL OF THEKANSA S BAR ASSOCIATION MARCH 2005 - 7 Saying Thanksto new Friends

t still seems like yesterday when I packed my car This is only the start of the wide array of new with some of life's necessities, left my family benefits envisioned by your KBA Membership I behind in New Jersey to sell our home, and hit Committee. the road forTo peka. This month, however, already On the CLE front, we will continue to provide ma rks my one-year anniversary as executive director high-quality programs, but at reduced rates! Earlier C/) of the Kansas Bar Association. Time does fly when this year, we conducted the first-ever accredited � you are having fun! Web cast in the state and are creating other innova­ � I must admit that the transition to life here has tive ways to help you meet your educational needs 0 been easier than I ever could have imagined. Julie in a variety of convenient formats. and the kids have settled into our new surround­ Later this spring, we will commence work on a z ings, and we are proud to call ourselves Kansans. Law Practice Economic Survey that should offer C/) z First, I owe a huge debt of gratitude to the new valuable insight into the financial side of being a r-, � friends who have provided much encouragement and lawyer in Kansas. In addition, we plan to look at � assistance ro me dur- the feasibility of pro­ 0 �::E ing the last 12 months. viding freeon line legal � � What can I say about research. Dan Sevart, our imme­ TheCo urt's decision to reinstatereci procity Of course, we will u 0 diate past president and continue to work � � isonly one recentexam pleof thebar someone who has given closely with the Kansas � � so much of his time working to improve the profession. Sup reme Court on - � and talents to the matters affecting the Q � organization. He was practice of law. The waiting when I arrived and has been there ever since. Court's decision to reinstate reciprocity is only one � � � There's our president, Mike Crow, who from the recent example of the bar working to improve the > � start was in my corner and continues to amaze me profession. - � with his enthusiasm and savvy leadership. Other important administrative matters to be � � I also want to acknowledge Foundation President addressed in the coming year include increasing � Gloria Farha Flentje and her predecessor, Tom nondues revenue and building a sizable cash reserve u Adrian, as well as the officers and board members of so that our dues remain amo ng the lowest for a state � both the KBA and KBF, and the many members bar in the country! X who made me feel at home right from the start. I � am grateful to all of you foryour support. Your Invitation Despite our well intentions, your participation, Lastly, I would be remiss if I did not extend my however, remains the single most important ingre­ sincere appreciation to the bar staff. It is so gratify­ dient to the many successes that lie ahead. Have ing to work with a group of professionals dedicated you ever wondered why the members who are most to giving their best each and every day. active in the association seem to be having so much Releyant Membership Benefits fun? Well, we invite you to find out for yourself. As for the job at hand, we are working on it. You When you see the committee and section call flier may have noticed some of the initial changes such as located in this issue, be sure to take a moment to our imp roved weekly online newsletter, the see if something interests you. e-Journal, and redesigned Web site at www.ksbar.org. Celebrate our progress and help us work for the We are also pleased that many members have com­ fu ture as we continue to provide a meaningful mented on the Journal, which has been transformed organization that members are proud to say is into a crisper, easier to read format. theirs. Another new benefit that promises to be very Again, thank you for your trust and continued popular are the new section bulletin boards, which dedication. ■ offer members the opportunity to post messages and review responses without the hassles of a list serve filling your e-mail box.

8 - MARCH 2005 THEJO URNAL OF THEKANSA S BAR ASSOCIATION Make theMost ofYou r Kansas BarAsso ciationMe mber Benefits!

• Subscription to The Journal • Legislative testimony online • Discounted CLE seminars • KBA sections online • Discounted practice handbooks • Client referral opportunities (LRS) • Health insurance offerings • ALPS and PIR Insurance • e-Journal newsletter • Discounted LexisNexis research • Ethics opinions online • Free Journalclas sified ads • E-mailed appellate summaries • ABA Members Retirement Program • Members-only area of KBA Web site • KBA Visa Gold Card • E-mailed legislative bulletin • Car rental/travel discounts

Introducing YourNext Me mber Benefit! • KBA Members' Bulletin Board

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THEJO URNAL OF THEKANSAS BAR ASSOCIATION MARCH 2005 - 9 KBA M EMBER p ROFILE Legal Career and Motherhood are not Mutually Exclusive for Wichita Attorney By Beth Wa rrington, KBA publications coordinator

artie Ross, a Wichita native, is a partner with one of Her son, Jack, was born in September 1998, and daughter, the largest firms in Kansas, Foulston Siefkin LLP. Amelia was born in October 200 1 . Ross' kids think it is per­ She practices the business side of health care, con­ fectly normal that their mom is an attorney. Mtracting, and regulatory compliance because it puts less strain "Jack started kindergarten this year and, for the first time, on one of the most important aspects in her life - her family. he's around kids whose moms are home most of the day," she A graduate of the (KU) in 1987, Ross said. "He thinks that's pretty neat, and we have had some earned a bachelor's degree in philosophy and sociology. interesting conversations about why I go to work everyday and "I considered pursuing my Ph.D. in sociology, but I didn't why I hole up in our office some evenings and weekends. want to spend that much more time in school," Ross said. "Judge Tacha taught me that a full-time legal career and Ross' sister, Jaculin, who is a partner with Shearman and motherhood aren't mutually exclusive. The manner in which Sterling in New Yo rk City, she balances the demands of her encouraged her to go to law professional life was truly inspir­ school. ing to me." "She told me that even if I Ross said having children has never practiced law, a J. D. was been the most rewarding experi­ one degree that gave a woman ence of her life. instant credibility in the business "My priorities have changed," world," Ross said. she said. "Beforewe had children, Ross participated in debate and it seemed I had unlimited time student government at KU and and energy to put into my career had a keen interest in public pol­ and community involvement, icy issues. She said law school and I could always make room seemed like a low-risk proposi­ foranother challenge." tion. In 1990, Ross earned her Her time and energy are now juris doctorate from the precious commodities. Ross' first University of Kansas School of priority is her family, and she said Law. Martie Ross with daughter, Amelia, and son, Jack she has to meet their needs first. Pursuing a legal career was not a "I have to be much more care­ life long ambition for Ross, but law school seemed like the ful managing my time," she said. "I want to be super mom, best available option forher at the time. super wife, super lawyer, and never say no to any community Chief Judge Deanell Tacha, U.S. Court of Appeals for the group that asks. Yo u have to accept you can't do everything Tenth Circuit, helped Ross decide a possible path for her and get over the guilt that goes with it." future. Ross said she was not sure what she wanted to do Ross was made partner at Foulston in 1998. She said she is with her law degree or where to live. After a yearlong clerk­ lucky to work in an environment that is supportive of work­ ship with and guidance from Tacha, Ross moved to mg moms. Wa shington, D.C., in 1991 to work forthe federal appellate "My partners have never made me feel like less of a lawyer court as a staffatto rney and then with the Washington firm because I'm a mom," she said. of Wilmer, Cutler and Pickering. Ross would not be able to balance the demands of work While working for the court, she met her husband, Philip, and family without her husband, who is a business analyst who at the time was working on Capitol Hill forformer Se n. forSed gwick County. Bob Kerrey, Neb. "We have learned to play to each other's strengths," she A few months after marrying Philip in 1994, they moved said. "We share responsibilities on the home front and trade to Wichita, and Ross joined Foulston, where she was off when one of us needs some extra time to take care of assigned to the business litigation practice group. work." "I still handle some litigation involving health care Having children teaches you to leave your work at the providers, but I really enjoy working directly with our clients office, she said. on compliance-related issues," Ross said. "Litigation can be "My husband tells me I have learned to leave my lawyer very unpredictable and involves a fair amount of travel. brain at work," she said. "It's a heck of a lot easier to come in "While an office practice isn't always an 8 a.m. to 6 p.m. each morning and tackle the day's problems, as opposed to job, it does give me a more regular schedule. That's a big plus having worried about everything all night." ■ with little kids at home."

10 - MARCH2005 THE JOURNAL OF THE KANSAS BAR ASSOCIATION KBFIO LTA ... Making a Difference

Whatis IOLTA? KANSAS BAR FOUNDATION IOLTA is the acronym for the Interest On Lawyers' Tr ust Accounts program, which was

...ser ving rhe citizens of Kansas and rhe established by Kansas Supreme Court rule in 1984. Under the IOLTA program, a lawyer is legal profession through Funding charitable permitted - indeed encouraged - to make the lawyer's trust account productive for the pro­ and educational projects char foster rhe fession. An IOLTA account is designed for short-term and nominal deposits of client funds welfare, honor, and integrity of rhe legal sys­ tem by improving its acccssibiliry, equality, that would ordinarily be pooled together in a non-interest bearing checking account. When and uniformity, and by enhancing public these funds are pooled together in an interest bearing account, they can produce significant opinion of rhe role of lawyers in our society. amounts of revenue for law-related charitable public service projects. The Kansas Bar Kansas Law Center Foundation (KBF) administers the IOLTA program, The KBF collects the interest on these 1 200 S. W. Harrison Sr. accounts statewide, and the revenue is used to fund civil legal services for the poor and legal PO. Box I 037 programs to improve the administration of justice. IOLTA also assumes bank service charges Topeka, Kansas 6660 I -1037 Telephone: (785) 234-5696 and fees on the account that result from the establishment of an IOLTA account. Fax: (785) 234-38 I 3 Participation in the IOLTA program is voluntary for both the financial institutions and Web sire: www.ksbar.org Kansas lawyers. Approximately 3,188 lawyers and 130 financial institutions participate in the OFFICERS Kansas IOLTA program. Gloria Farha Flenrje, Wichira President Programs funded by IOLTA H. David Starkey, Colby Presidenr-elecr Since its creation in 1984, the Kansas IOLTA program has generated more than $2.5 mil­ lion in grant funds used primarily for funding civil legal services for the poor, law-related edu­ Sally D. Pokorny, Independence Secretary-Treasurer cation projects, and administration of justice. In the past, grants to civil legal service programs have focused on assisting victims of domestic violence, children, and the elderly; assisting Thomas A. Adrian, Newton with local and state bar pro 60110 and reduced fee programs; and providing technical support Past Prcsidenr for legal service staff. BOARD OF TRUSTEES Past law-related education projects funded by IOLTA grants include rights and responsibili­ Sara S . Beezley, Girard ties booklets for young people, peer mediation projects in schools, a statewide Mock Trial Mary Beth Blake, Overland Park Robert M. Collins, Wichita competition, and a freenewsletter that contains legal topics and lesson plans for teachers, Joni S. Franklin, Wichita ThomJS D. Herlocker, Winfield John D. Jurcyk, Roeland Park Help make a difference! Bruce W. Kenr, Manharran Teresa M. Meagher, Leawood The IOLTA program has experienced a drop in interest rates and a rise in bank service fees Thomas V. Murray, Overland P:1rk over the last couple of years, which in turn has led to a decline in the KBF's IOLTA income. James D. Oliver, Overland Park This decline impacts the amount of KBF grants available for civil legal services, law-related Daniel J. Sevarr, Wichira Sarah B. Shattuck, Ashland education projects, and administration of justice. Wayne R. Tate, Hugoton IOLTA is an easy way to help fund these projects. All you have to do is fill out an applica­ Hon. David J. \V:1xse, Kansas Ciry tion and set-up the account at an approved bank, and then the KBF and your bank do the James C. Wright, Topeka rest. A list of approved financial institutions can be found on the Kansas Disciplinary Administrator's Web site at www. kscourts.org/attydisc/banktrst.htm.

Richard J. Liby, Wichita If you have opted out, please consider opting back in. Young Lawyers Reprcsenrarive For more information on the IOLTA program, please contact Janessa Akin, manager, public services, at (785) 234-5696, e- mail [email protected], or visit www.ksbar.org and click on Hon. Sreve Six, Overland Park Kansas Bar Foundation. KT LA Represenrarive ■ Evelyn Z. Wilson, Topeka Kansas Women Arrnrneys Associarion Represenrative Marky our calendars now! EXECUTIVE DIRECTOR JeffreyJ . Alderman, To peka The 2005 Fellows Dinner is tentatively scheduledfor Saturday, Ju ne 11, 2005, at the KBA'sAnnu al Meeting in Vail, Colo. Those added to the MANAGER, PUBLIC SERVICES published ro!L offe!Lows and those who have reached a new contribution Janessa Akin , Topeka Level wi!L be honored at the dinner. Th is black-tiegala event of the year provides a wonderfulop portunityto salute the new fe!Lows, introduce new offi cers, and reminisce with co!Leagues. In vitations wi!L be mailed in Ap ril. Ifyo u wouldLike more information about the dinner, please con­ tact Ja nessa Akin, KEA manager of public services, at (785) 234-5696.

THE JOURNAL OF THE KANSA S BAR ASSOCIATION MARCH 2005 - 11 LAW STUDENTS' CORNER Jury Selection From a Juror's Perspective By Shannon L. Bell, WashburnUniversity School of Law

ur goal today is to find a jury pool that will be One of the most amusing moments for me was when the '' judge, upon learning that I was a third-year law student, 0 impartial and the fairest to both sides of chis case as possible," said lawyers during voir dire. intervened and asked me if I had learned or experienced any­ Yeah, right. The potential jurors may have believed this the thing during my law school career that would make me first time it was said, but after continuous advocacy-laden biased or otherwise unable to be fair to either of the parties. I inquiries followed by this statement, I suspect many jurors understood the judge's legitimate concerns, but I could not grew impatient and suspicious of the lawyers. Several private help but laugh to myself to think that the seasoned legal vet­ bench conferences between the lawyers nearly at the outset erans of our profession apparently believe that today's law of the voir dire didn't help much either. Who would believe schools somehow poison the minds of their students and that "voir dire" is French for"to speak the truth?" rake away their ability to be objective. I suppose lawyers are a This was the scenario at the jury selection phase of a recent skeptical bunch by nature. For proof of that fact, one has to criminal trial in which I was called as a member of the look no further than this article. potential jury pool. Even as a future lawyer, I found myself a Although I observed only voir dire, chis was a valuable little annoyed at the lengthy and combative voir dire process. learning experience chat will benefit me in my law career. I And this did not even appear to be a case between hostile never fully appreciated the significance of voir dire until I sat lawyers! My impression was that both lawyers lost the jurors' as a potential juror. If the lawyers had waited to advocate trust before delivering their opening statements. I guess the until the appropriate time (or at least made their advocacy good news is that both parties were equally damaged at that efforts more subtle), I believe they would have been way point. ahead of the game going into opening statements. The jury selection process left me dissatisfied. I think a lot As a law student, I recognize that a lawyer has an ethical of the other jurors felt the same way I did that day. In the duty to act as a zealous advocate forthe client. However, after past, I've participated in or observed numerous jury selec­ seeing the jury selection process through the eyes of a poten­ tions, both as a law clerk and as a paralegal. But none of my tial juror, I know there is a fine line that, when crossed, com­ prior experiences compared to my most recent one. Sitting promises the lawyer's appearance as a "truth-giver." Jurors do in the jury pool, I obviously had a completely different not want to feel as though they are the only ones in the court­ mindset and perspective from those involved in presenting a room who are "speaking the truth" during voir dire. client's case. ■ Trial advocacy programs often teach us that jurors believe About the Author the lawyers know the "truth" about the case they are present­ ing. It is true. As a potential juror, I believed the lawyers Shannon L. Bell, Wichita, is a third-year knew all about the case, and any attempts on their part to student at Washburn University Schoof of keep me from hearing something or to narrow down the jury Law. He attended Wichita State University, panel to a group of biased jurors, left me questioning their earning a BGS and A.S. in the Legal truthfulness. Regardless of whether juror skepticism is justi­ Assistant Program. After graduation, he fied, it is a reality that lawyers must face. plans to join Foufston Siejkin LLP as an Even without losing the jurors' trust, a lawyer has a diffi­ associate. cult task of presenting the client's case in a manner the jurors will understand and that will keep the jurors' attention. The gentleman sitting closest to me in the jury pool was snoring loudly less than a minute into the introductory video, which was meant to instill a sense of pride and responsibility for performing our civic duties as jurors. As you might guess, this gentleman somehow avoided all of the peremptory chal­ lenges and ultimately served as a member of the jury. At the outset, I was very optimistic about the possibility of serving as a juror. I felt that it was an important thing for me to do, especially as a future lawyer who not only believes in the jury trial system, but who also could learn from observing court proceedings. I was eager to dish out some old-fashioned justice for whichever party the jury decided was worthy. Unfortunately (but maybe mercifully, judging by the way the trial started), I did not get to serve as a juror. I was one of three potential alternate jurors, and I was ultimately dis­ missed at that stage.

12- MARCH2005 THEJO URNAL OF THE KANSA S BAR ASSOCIATION 2005 KBANo minating Committee Nominations

he KBA Nominating Committee met pursuant to the KBA Bylaws and nominated candidates Kansas Bar Association Districts for KBA officer positions. 1 Listed below are the Tofficer candidates as of Jan. 28, 2005. Biographical information for these and any additional candidates f will be published in the journal o the Ka nsas Bar Association prior to the voting deadline. --+--Averland Park 2005 KBA Officers Nominees

KBA President: Richard F. Hayse, Topeka KBA President-elect: David J. Rebein, Dodge City KBAVice President: Linda S. Parks, Wichita, and Timothy M. O'Brien, Overland Park KBA Secretary/Treasurer: Ernest C. Ballweg, Overland Park

OPEN SEATS ON THE BOARD OF GOVERNORS

There will be six positions on the KBA Board of Governors up for election in 2005. Candidates seeking a position on the Board of Governors must file a nominating petition - signed by at least 25 KBA members from that district - with Jeffrey Alderman by March 11, 2005. If no one filesa petition by March 11, 2005, the Nominating Committee will recon­ vene and nominate one or more candidates for open positions on the Board of Governors. KBA districts with seats on the Board of Governors up forele ction in 2005 are:

• District 1: Incumbent Thomas J. Bath Jr. li eligible forre -election. Johnson County • District 3: Incumbent Hon. Rawley J. "Judd" Dent is not eligible for re-election. Allen, Anderson, Bourbon, Cherokee, Crawford, Labette, Linn, Montgomery, Neosho, Wilson, and Woodson counties • District 5: Incumbent Thomas E. Wright is not eligible for re-election. Shawnee County • District ?: Incumbent Mary Kathryn Webb Ll eligible for re-election. Sedgwick County • District 8: Incumbent Trish Rose is not eligible for re-election. Barber, Barton, Harper, Harvey, Kingman, Pratt, Reno, Rice, and Stafford counties • District 12: Incumbent Michael Anthony Williams li eligible for re-election. Out-of-State

Elections will be held by secret ballots mailed in April forany contested positions. Uncontested nomi­ nees will be declared elected. All terms for elected officers and board members will commence at the conclusion of the KBA Annual Meeting in Vail,Colo. , June 9-11, 2005.

For more information:

Petitions forthe Board of Governors can be obtained by contacting Rebecca Wormington at the KBA office at (785) 234-5696 or at [email protected].

If you have any questions about the KBA nominating or election process or serving as an officer or member of the Board of Governors, please contact Dan Sevart at (316) 269- 4215 or via e-mail at [email protected] or Jeffrey Alderman at (785) 234-5696 or via e­ mail at [email protected]. ■

I. Nominations for officer positions can also be made prior to March 17, 2004, by submitting a petition signed by 50 regular members of the KBA to the KBA Executive Director.

THEJOU RNAL OF THEKAN SA S BAR ASSOCIATION

MARCH 2005 - 13 Building Yo ur Practice By Eric Kraft, KBA Yo ung Lawyers Section president ave you ever wondered how you were going ro find bar function. Many times, a senior attorney has a client with your own clients and build your own practice? Join a small problem who needs someone more reasonably­ H the club. There isn't a single lawyer I know who has­ priced, a perfect fit fornew attorneys. While these clients n't worried about this question at one time or another. For often won't be something to retire on, they are a good start those in private practice, it's a nagging concern. If you work to your own clientele. Treat these clients well and both the for the public, or in-house, the lack of a clear answer ro chat referring attorney and the client will be more likely to rec­ question may prevent you from looking for a new job. There ommend you ro another person with a legal problem. As a are no clear answers - a fact chat causes all of chose who are result, your reputation and book of business grows. risk-intolerant ro tremble. However, there are many ways to Serve clients well. Clients expect an attorney to communi­ increase your odds of achieving cate with chem, help solve their problems, and facilitate goals. your own book of business. That's really it. However, you would be surprised how many Write an article. Ask any ediror attorneys do not fLJfill these desires (why do you chink there are of any trade magazine or periodi­ so many lawyer jokes?) . The number one disciplina1y complaint cal and you will discover an against attorneys is the failure to communicate. Number two is almost-universal truth: There is a lack of diligence. Solve these two issues and you are well on your surprising lack of people willing ro way to becoming a good acrorney. Clients who have good attor­ write an article for that neys refer chem to their friends and will use chem again. publication. True, articles are a Employ these techniques in your first fewyears of practice labor-intensive and time­ and you will be on your way ro developing your own prac­ consuming process. That being tice. Bue do not expect clients overnight. Your number and said, there is no better, easier, and quality of clients depends greatly on your reputation. Yo u cheaper way ro gain exposure in will forge your reputation by these activities, but it will take the legal community than ro write some time ro grow. Therefore, the last thing you will need to Eric Kraft foryou r local bar journal, the build your practice is patience. ■ journal of the Ka nsas Bar Association, or another legal publication. I speak from experi­ LAW OFFICES OF ence; I published an article in the journal in the spring after my • graduation. However, I will admit chat I cheated, to a degree. While in law school, I wrote an article, which I lacer shortened V ���!�H�G���B?ctg. and submitted to the journal for publication. As a result, I 300 West Douglas became published with minimal effort on my part. My experi­ Wichita, KS 67202 ence also lends itself to a second, sub-point: be resourceful. email: [email protected] Give a Continuing Legal Education (CLE) presentation. I know what you're chinking: I don't know enough ro give a CLE. Yo u are absolutely wrong. Youjust ♦35% Referral Fees have ro know more than your audience (and chat isn't always the case, either) . Think of any interesting cases you have had, ♦ All Expenses Advanced the points of law that it involved, and volunteer to give a one-hour CLE on chat subject. Maybe it's an obscure consti­ tutional law question. Perhaps it's a point on civil procedure. ♦ Settlements or Trial Perhaps you learned something reading a case or two upon which you could expand. In any case, you have certain ♦ All types and sizes knowledge and experience that is unique. If there are any universal truths in the law, it's that we are constantly learn­ of cases ing. As a result, if you have had one trial or 100, you have some experience that the rest of us have not had. Translate ♦ Proven track record chat experience into 50 minutes of worthwhile lecture and of success you have a CLE. Giving a CLE (or even moderating one, if you want ro start slow) is a great way to hone your speaking skills and sharpen your critical thinking; rools you will use in PERSONAL INJURY your practice. ♦ Vo lunteer and become involved. Your exposure to the WRONGFUL DEATH legal and general community is your key to success. Volunteer ro help a charity; help out with bar activities; join a committee in your local bar, the KBA, or the American Bar (316) 264-3333 Association. Volunteers are always needed and are very much ♦ appreciated. Yo u will be surprised how many times you will 1-800-266-3345 cultivate a new client from a casual contact at a charity or 14 - MARCH 2005

THEJO URNAL OF THEKANSA S BAR ASSOCIATION Members ,n• the News CHANGING POSITIONS Courtney B. Wa its has joined the domestic The Law Officeof Reba Comstock­ Samantha P. Angell has become a share­ litigation practice of Berkowitz and Fisher is now at 5830 Woodson, Ste. holder in Achterberg, Neusrrom and Cook, Kansas City, Mo. 206, Mission, KS 66202. Angell, Salina. Patrick M. Waters, Kansas City, Kan., is Whitney B. Damron has moved to 919 S. Clayton L. Barker, Kansas City, Mo., has now with the legal department of the Kansas Ave., To peka, KS 66612-1210. been elected partn er to Spencer, Fane, United Governmentof Wyandotte Ilene Munk Gaekwad has formedthe fi rm Britt and Browne LLP. County. ofIMG and Associates LLC. The firm is Pamela Campbell Burton, has become a Christopher D. Werner, Osawatomie, located at 316 N. Santa Fe, Salina, KS member of Murray, Tillotson and Wiley now works forthe Kansas Department of 6740 1. Chtd., Leavenworth. Social and Rehabilitation Services/CSE in Michael C. Gibbens has moved to 15510 Karen K. Cain and Eric W. Smith, both of Kansas City, Kan. Seate Ave., See. 7, Basehor, KS 66007. Kansas City, Mo., have joined Bryan Matthew W. Wilson has joined Mason and Carol G. Hall has moved to 422 Walnut Cave LLP. Ve lasquez P.A. in Arkansas City. St., Leavenworth, KS 66048. Elizabeth Ringel Cohn, Alma, is now an Carcia A. Wortman, Lawrence, is now Heath and Kaplan P.A. is now at 3601 attorneyfor Wabauns ee County. working forthe Kansas Court of Appeals. S.W.29t h St., Ste. 108, To peka, KS Ted Disabato has joined City Group 6661 4-2015. Private Bank, Long Island City, NY. CHANGING PLACES Keith D. Hoffman has moved to 201 E. G. Stuart Englebert is now with Ye retsky Alvarez Law Firm has moved to 10 S. 1st, Abilene, KS 67410. and Maher LLC, Overland Parle Hallock, Kansas City, KS 661 01. The Law Officeof Gary K. Jones LLC James Freeman III, Kansas City, Mo., is Barelli Law has moved to 4024 E. has moved to 1919 N. Amidon St., See. now with the firm of Swanson Midgley Coolidge St., Phoenix, AZ 8501 8-3738. 212, Wichita, KS 67203. LLC. Beall and Mitchell LLC, has moved to Robin A. Kramer has opened a new firm Mary-Ann Gaston has joined the 355 N. Waco, Ste. 150, Wichita, KS at 1125 Grand Blvd., See. 1500, Kansas Overland Park office of Fouls ton Siefkin 67202. Cicy, MO 64 1 06. LLP. Brendon P. Barker has started Barker Law Karl G. Krauss has formed Krauss Law Jodi Hoss, Kathleen Ryan, and Vicki Offices P.A., 7105 W. 105th St., Firm LLC, 1024 Highland Drive, We sterhause have joined the Kansas Overland Park, KS 66212. Liberty, MO 64068-3 113. City, Mo., officeof Stinson Morrison Richard W. Brown, Jane M. lsern, and Hecker LLP. Gail Carpenter have formedBr own, Casey 0. Housley, Kansas City, Mo., has Isernand Carpenter, 1909 Lakin St., P.O. (continued on next page) been named a partner with Armstrong Box 1626, Great Bend, KS 67530. Teasdale LLP. Mark E. Jones is now with Shelter Dan's Cartoon by Dan Rosandich Insurance Companies, Columbia, Mo. Carlton W. Kennard has joined WATCO Co., Pittsburg. Terence E. Leibold and Te rrence J. Campbell have become members of Barber Emerson LC., Lawrence. Brian A. Mark, Overland Park, has joined Universal Underwriters Group. Steven K. McGinnis is now a part of Loring Ward Internacionalin San Jose, Calif. Brenda Mesker, Wichita, is now with Learjet Inc. John R. Morse has joined LodgeWorks LP.,Wichita. Clinton G. Newton, William A. Yoder, and Matthew J. Wiltanger have been named partners in Shook, Hardy and Bacon LLP. Newton and Yoder work in - the Kansas City, Mo., office and .''., �l- Wiltanger is located in the firm's ��f:·.>, ' I Overl and Park office. I Jessica M. Norris, Kansas City, Mo., has I joined Sonnenschein, Nath and I Rosenthal LLP. John M. Shoemaker, Topeka, has joined I the Kansas Insurance Department. Thomas L. Steele, Wichita, has joined Tiger Financial Management LLC. I "Oh yeah, Why aren't pedestrians in theircars where they belong?!

MARCH 2005 - 15 THEJ OURNAL OF THE KANSASBA R ASSOCIATION Members continued . . . OBITUARIES Kathryn Lask has a new business address, 4925 Roundtree, Shawnee Mission, KS 66226. FloydH. Coffman Steven Metzler has a new business address, 314 Washington St., Hon. Floyd H. Coffman, 86, Overbrook, died Feb. 2. He Oskaloosa, KS 66066. was born July 16, 1918, on a farm south of Overbrook, the Phillip A. Miller, Kansas City Mediation Services L.C., has a new son of Clyde and Minerva Bragg Coffman. address, 221 W. 48th St. #1702, Kansas City, MO 64112. Coffman graduated from Overbrook Rural High School in Jeffrey B. Mullin, Mullins Law LLC, is now located at 201 N. 1936. He attended Emporia State Teachers College, graduating Spring, Independence, MO 64050. in December 1940. Following his graduation, he began his Robert A. Pool, FMC Technologies Inc., has a new business legal studies at Washburn University School of Law. While at address, 1803 Gears Road, Houston, TX 77067. Washburn, he became a member of Kappa Sigma Fraternity. Prochaska, Craig, Giroux and Howell is now located at 770 1 E. He married Geraldine Crawford on Jan. 11, 1942. They Kellogg, Wichita, KS 67207. shared more than 62 years of marriage before her death on Rice, Dean and Kelsey LLC has moved to Liberty Building, Ste. Sept. 16, 2004. 305, 214 S.W.6th St., To peka, KS 66603. He entered the U.S. Army in February 1942. He served in Russell Schneidewind is now at 200 N.E. 43rd Te rrace, Kansas the 4th Port of Embarkation at Liverpool, England, before City, MO 64 116. being transferred to the Allied Headquarters in Algiers, Shores, Williamson and Ohaebosim LLC is now located at 1400 Epic Center, 301 N. Main, Wichita, KS 67202. North Africa, which was relocated to Caserta, Italy, in June Jeffrey R. Siegel has formedthe Siegel Law Firm, 6804 W. 107th 1944. He was discharged in October 1945. Sc. #250, Overland Park, KS 662 12. After his military service, he returned to Washburn and Jill Galbreath Smith has opened the Law Offices of Jill Galbreath graduated in June 1948. The family moved to Ottawa, where Smith, 12120 State Line Road #169, Leawood, KS 66209. he entered the practice of law. After a year as a law clerk with Stone Law Officehas moved to New Brotherhood Bank Building, the federal court in Kansas City, Kan., he was elected pro­ 753 State Ave., Ste. 388, Kansas City, KS 66101. bate judge of Franklin County. In 1952, he was elected dis­ Eric T. Theroffhas a new business address, 333 W. 1 1th St., 5th trict judge for the Fourth Judicial District, consisting of Floor, Kansas City, MO 64105. Douglas, Franklin, and Anderson counties. He was retained DeVoe G. Treadwell, Treadwell Lane LLC, is now at 300 W. as district judge until his retirement in 1983. He was a past Douglas #305, Wichita, KS 67202. president of the Kansas Probate Judges Association and the Ward Law OfficesLLC has moved to 245 N. Waco, Ste. 405A, Kansas District Judges Association . He was a lifetime mem­ Wichita, KS 67202. ber of the Kansas Bar Association. Mark C. Wilson has created the Law Office of Mark C. Wilson, Judge Coffman was active in the Ottawa First United 5745 Blackhoof, Merriam, KS 66203. Methodist Church, was the lay member of the Ann ual Conference for many years, and became conference lay MISCELLANEOUS leader in 1958. In 1960, he was elected by the Annual Joni Franklin Breitenbach, Wichita, has been confirmed by the Conference to be a delegate to the General Conference of to serve on the Kansas Lottery Commission. the Methodist Church. He was re-elected quadrennially until Curtis Frasier, Beloit, has been named 2004 Council for 1984. From 1960 to 1984, he served on several general Advancement and Support of Education District VI Vo lunteer of boards of the church, including the General Board of the Ye ar. Pensions and General Council of Ministries. Oliver Kent Lynch, Baxter Springs, has been appointed judge to He was past president of the Ottawa Chamber of the 11th Judicial District Court by Gov. . Commerce, Master of the Ottawa Lodge No. 18 AF and Larry Michel, Salina, has been appointed to a three-year term to the bench-bar committee forthe U.S. District Court forthe AM, a member of the Ridgeway Lodge No. 62 AF and AM District of Kansas. at Overbrook, president of the Ottawa Rotary Club, and was Stephen Six, Lawrence, has been appointed as district judge in a Paul Harris Fellow of Rotary International Foundation. Douglas County by Gov. Kathleen Sebelius. Six is the son of retired Kansas Supreme Court Justice Fred Six. (continued next page)

Editors Note: It is the policy of The Journal of the Kansas Bar Association to include onlypersons who are members of the Ka nsas Bar Association in its Members in the News section.

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16-MARCH 2005 THEJO URNAL OF THEKAN SA S BAR ASSOCIATION He is survived by two sons, Bruce, Silver Lake, and H. and was active with the Ronald McDonald House. Hurst, Topeka; two daughters, Martha, Lawrence, and Barry is survived by his mother, Overland Park; sister, Patti Geraidine, Overbrook; seven grandchiidren; and three great­ Trabon, Olathe; and brother, Ray, Corpus Christi, Texas. He grandchildren. He was preceded in death by his parents, five was preceded in death by his father. brothers, and his wife. Ivan D. Krug Robert F. "Bob" Glassman Ivan D. Krug, 74, La Crosse, died Dec. 18 at the Hays Robert F. "Bob" Glassman, 82, Hays, died Jan. 21 at his Good Samaritan Center. He was born Jan . 1, 1930, at La home. He was born Feb. 12, 1922, in Hays to Florian F. and Crosse, the son of Alfred and Freda H. Krug. Mary Dreiling Glassman. He was a 1948 graduate of La Crosse High School; gradu­ He was a graduate of St. Joseph's Military Academy in Hays, ated from Kansas State University in 1953; attended Fort Hays State University, and Wa shburn University School Columbia Business School, New Yo rk; and received a degree of Law. He was a U.S. Army veteran of World War II. from Washburn University School of Law in 1959. He was a Glassman was partner in the law firm of Glassman, Bird, member of the Kansas Bar Association. Braun and Schwartz and was a member of the American and Krug served in the Kansas House of Representatives from Kansas bar associations. He was also a former city attorney, 1961 to 1965. In 1966, he was elected Rush County county attorney, and probate judge in Ellis County. Attorney and served in that position until his retirement in He was a member and past commander of the Hays 1997. He also had a private law practice and was engaged in Veterans of Foreign Wars; a member of the Hays American farming. Legion; a former member of the board of St. Anthony Krug was a founder of the Kansas Barbed Wire Association. Hospital, Hays; and a recipient of the St. Thomas More He was a member of the La Crosse United Methodist Church Friend for All Seasons Award at TMP-Marian High School and a 50-year member of the Masonic Lodge. in Hays. On Aug. 16, 1959, he married Verdel Wilson in Glassman married Mary Frances Leiker on Oct. 23, 1945, Wellington. in Hays. She survives. Other survivors include two daugh­ Survivors include his wife; two sons, Breo n, Minneapolis, ters, Belinda Hartman and Susan Meyers; a brother, Eugene Minn., and Heath, Alliance, Neb.; one daughter, Brooke "Dusty"; and a sister, Sally Smith, all of Hays; six grandchil­ Liggett, Springfield, Mo.; two sisters, Aleta Crabtree, dren; and nine great-grandchildren. Leavenworth, and LaVa nda Hayworth, Venice, Fla.; and four A son, Robert F. Glassman Jr., preceded him in death. grandchildren. ■ Lee Va ughn Hornbaker Lee Vaughn Hornbaker, 88, Junction City, died Dec. 22. He was born July 31, 1916, at Castletown, to Charles C. and Mary Logan Hornbaker. Hornbaker attended Hutchinson Junior College and grad­ uated from Washburn Un iversity School of Law with his LLB in 1940. After law school he worked for the U.S. gov­ ernment for a time and then moved to Hutchinson, where he practiced law for several years. In 1946, he moved to Junction City, where he practiced with Howard Harper for more than 40 years and served a term as Geary County attorney. Access to Justice He was a lifetime member of the Kansas Bar Association. Grant Applicants Sought He was a past president of the Kansas Trial Lawyers and was active in leadership in other professional organizations and The Access to Justice Fund is administered by the assignments, including appointment by the Kansas Supreme Kansas Supreme Court and is intended as a source Court to the Kansas Board of Law Examiners. of grant funds forthe operating expenses of He married Alma Wacha on Dec. 31, 1942. She preceded him in death. In 1992, he married Katherine Harper. She programs that provide access to the Kansas civil survives. Other survivors include two sons, David, To peka, justice system. Its purpose is to support programs and Steven, Junction City; three grandchildren; and three that provide persons, who otherwise may not be great-grandchildren. able to afford such services, with increased access to legal assistance for pro se litigation, legal counsel Barry L. Huffman forcivil and domestic matters, as well as other legal Barry L. Huffman, 47, Mission Hills, died Jan. 11. He was advice and dispute resolution services. born March 1, 1957, in Hutchinson to George and Margaret Huffman. Applications for grant funds will be due May 30, He graduated from Colorado State Un iversity, where he 2005. Grant application packets may be requested majored in the natural sciences and received a law degree from the Officeof ]udicial Administration, 301 W fromWashburn University School of Law. 10th, Rm. 337, To peka, KS 66612. Please direct Barry was a member of the Kansas Bar Association and previously practiced law at La Petite Academy and Western telephone inquiries to Art Thompson at (785) 291- Auto Corp. Since 2000, Barry acted as associate general 3748. counsel at the corporate offices of Applebee's International

THEJO URNAL OF THE KANSASBAR ASSOCIATION MARCH 2005 - 17 KBACommi ttees and Sections Seek Vo lunteers he KBA relies heavily on members who volunteer their time, talent, and energy to committees, panels, and sections. The KBA's standing committees and panels function throughout the year, along with task forces appointed forspecific tasks. In addition, the KBA has 18 sections (including the Yo ung Lawyer Section) that focus on areas of practice and helpT develop legislative proposals and CLE offerings. This is the time of year that we collect information from individuals who are willing to serve on committees, panels, or sections. Below is a volunteer form that you can use to let incoming KBA President Rich Hayse know of your interest as he consid­ ers appointments forthe coming year. The section vo lunteer formswi ll be forwarded to the appropriate section officers.

KANSAS BAR ASSOCIATION KBA Committee and Section CallForm Please designate which committee/panel you are interested Please designate which section or sections to which you in serving on. If indicating more than one committee, belong and are interested in serving as an officer or please number your choices for first, second, and third volunteer, e.g., to help with section newsletters, review preferences. legislation, develop CLE programming, etc. If volunteering for more than one section, please number your choice to ( ) Annual Meeting (Overland Park 2006) indicate first, second, and third preferences. ( ) Awards ( ) Bench-Bar ( ) Administrative Law ( ) Continuing Legal Education ( ) Alternate Dispute Resolution ( ) Diversity ( ) Bankruptcy and Insolvency Law ( ) Ethics Advisory ( ) Construction Law ( ) journal Board of Editors ( ) Corporation, Banking and Business Law ( ) Law-Related Education ( ) Criminal Law ( ) Lawyers Assistance Program ( ) Employment Law ( ) Legal Aid and Referral ( ) Elder Law and Disabilities Law ( ) Legal Assistants/Paralegals ( ) Family Law ( ) Legislative ( ) Government Lawyers ( ) Media Bar ( ) Health Law ( ) Nominating ( ) Insurance Law ( ) Standards forTide Examination ( ) Intellectual Property Law ( ) Litigation Panels ( ) Oil, Gas and Mineral Law ( ) Real Estate, Probate and Trust Law ( ) Ethics Grievance Panel ( ) Tax Law ( ) Fee Dispute Resolution Panel ( ) Yo ung Lawyers Section

Please note any special qualifications that you may have forthe committee(s)/panel(s) you have selected:

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Address ------KEA/Court # ______

Gry ______Srare __ �p �� ---- E-mail ______

Please return by Ap ril 15, 2005 to KBA - Committee and Section Co ordinator P.O. Box 1037, Top eka, KS 66601-1037; Fa x (785) 234-3813

18 - MARCH2005

THEJOU RNA L OF THEKANSA S BAR ASSOCIATION Celebrating 70 years of service to the legal community... Since 1935, Legal Directories Publishing Company hasprovided 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 officeseverywh ere. 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 Anniversary of that initial publication, and in the spirit of celebration, we would like to express a heartfeltthanks to all of the men and women who have supported us along the way.

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Legal Directories Publishing Company * 9111 Garland Road * Dallas, TX 75218 * 1-800-447-5375 * Fax 214-320-4869 * www.LegalDirectories.com LEGAL ARTICLE: THE KANSASRESIDENTIAL CONSTRUCTION DEFECT ACT:...

The Kansas Residential Construction DefectAc t: A Schematic Blueprint for Repairs By WyattA. Hoch

young couple recently visited a Kansas lawyer's office sponsored legislation that gives contractors both formal notice to discuss their profound disappointment with their of and time to repair construction defects before being hauled new home. After closing the purchase of their major into court. Kansas is one of 23 states, including Colorado, new investment, they discovered several windows leak after a Illinois, Indiana, Montana, and Texas, with residential con­ A 1 heavy rain from the east. Water stands in a corner of the struction legislation. Alabama, Nebraska, Ohio, Oklahoma, backyard following completion of their landscaping. The Pennsylvania, Vermont, Wisconsin, and Wyoming are consid­ electrical circuit breaker forthe master bath trips when both ering (as of November 2004) similar laws. a hair dryer and iron are running. The great room fireplace The Kansas statute, enacted by the 2003 Legislature and does not look the way they expected. But the contractor, codified as KS.A. §60-4701 et seq., is the most significant worn out from months of trying to meet the owner's expec­ Kansas construction legislation in more than 15 years. Called tations, had not-so-politely declined to perform additional by this author the Residential Construction Defect Act (Act), work. Surely the owners must have a remedy. the statute mandates a multistep procedure that must be Emotion-charged arguments between homeowners and followed before a homeowner can file construction defect liti­ their contractors present the closest noncriminal law practice gation; imposes on contractors new requirements for contract analogy to a domestic dispute. Nonexistent or poorly pre­ provisions and subcontractor lists; and empowers homeown­ pared construction drawings and specifications fuel misun­ ers unilaterally to choose arbitration in lieu of litigation for derstandings about the contractor's scope of the work and their disputes. If the contractor manages the process the owners' quality expectations. The patience of inexperi­ appropriately, the statute provides a minimum 90-day enced and generally unsophisticated (in constru ction cooling-off period from notice of the homeowner's claim to matters) home owners has been fr ayed. Contractors fre­ the date of filingsu it. quently complain they have not been afforded an opportu­ The Act, which became effective July 1, 2003, is intended nity to correct perceived deficiencies. And litigation is not to allow residential contractors and subcontractors an very productive; in a majority of residential construction opportunity to fixconst ruction problems before the com­ issues, formal dispute resolution proceedings simply are not mencement of litigation. The penalty for homeowner cost effective. noncompliance is dismissal of the lawsuit without prejudice, Although it is too early to call it a movement, some states with a bar to refiling until the homeowner clears the notice have attempted to address this quagmire with industry- hurdles.

1. Marie Zenner, State Construction Defect Legislation Progresses Steadily, Nations' Building News, Apr. 28, 2003, available at www.nbnnews.com/NBN/issues/2003-04-28/Housing+Politics.

20 - MARCH2005 THE JOURNAL OF THE KANSAS BAR ASSOCIATION LEGAL ARTICLE: THEKANSA S RESIDENTIAL CONSTRUCTION DEFECTACT: ... I. Scope of the Act with the homeowner the sole discretion • tell the homeowner the claim is of whether to allow the contractor an disputed and neither perform The Residential Construction Defect opportunity to correct che defect or to additional work nor offer a Act applies to a claimant'saction against settle the claim before litigation. settlement. a contractor for construction defects in · A. Ho meowner's initial notice of If the contractor fails to respond in a the construction or remodel of a claim. Before filing an "action," the timely fashion or disputes the claim dweLfing - all terms defined in the homeowner must serve a written initial outright, the homeowner may filesuit statute. The Act is triggered by a: notice of claim on the contractor. The without further notice. 12 Otherwise, construction defect, which notice muse state that the homeowner the homeowner has a 30-day period to 1 means "a deficiency in or arising asserts a construction defect claim and accept the contractor's repair offer. 3 from the specification, planning, must describe the claim in sufficient The Act provides no limit on the time supervision, or construction of detail to allow the contractor (and its to respond to an inspection request or residential improvements" chat trade subcontractors) to determine the monetary settlement offer. 8 results from: general nature of the alleged problems. The homeowner is under no obliga­ If the contractor refuses service of the tion to honor the inspection request or • defective materials, prod­ notice of claim, the homeowner may to negotiate the terms of a repair pro­ ucts, or components; bring an action without further notice.9 posal or monetary settlement. After • code violations; or B. Contractor's notice to affected rejecting the contractor's proposal in • poor workmanship (not in subcontractors. Since many times trade writing, the homeowner may proceed accordance with accepted 14 2 subcontractors will have performed the to fi le an action. Likewise, if the trade standards); allegedly defective work, the Act homeowner accepts the contractor's in new and remodeled construc­ mandates early involvement of those offer to repair or to pay money, but the tion;3 subcontractors in the formulation of the contractor fails to perform in a timely contractor's response. Within 15 days fashion, the homeowner may file its of a single fa mily house, a afrer receiving the homeowner's initial action without further notice. duplex, or a condominium unit notice, the contractor must serve (certi­ (but not a manufactured home fied mail, return receipt requested) that (continued on next page) on a permanent chassis);4 notice on each subcontractor "who may be responsible" for a defect specified in when the complaint is brought the notice, and include in that notice the by the homeowner, a subsequent specific defect far which the contractor purchaser, or a condominium believes the subcontractor is 10 association against a contractor.5 responsible. C. Co ntractor's initial response. The The Act does not apply to personal contractor must respond in writing to the injury claims or property damage chat owner within 30 days after receiving the renders the home uninhabicable6 or to homeowner's initial notice. 11 The con­ ACCIDENT RECONSTRUCTION claims against architects and engineers tractor (with or without the assistance of FORENSIC MAPPING chat do not also hold a contractor's the affected subcontractors) may: BLACK BOX DOWNLOADS license.7 • request an inspection; • offer co fix the problem at no cost to the owner (the contractor's VEHICLE MAINTENANCE II. The Claim Process AND SERVICING response must describe the pro­ The mandated claim process is FAILURE ANALYSIS posed fix and proposed start and AIR BRAKES described in the 12 paragraphs (plus finish daces for the corrective subparts) of KS.A. §60-4704. Although TIRE FAILURES work); TRUCK ACCIDENTS the Act requires the homeowner to pro­ • offer to pay money to settle the MOTOR CARRIER SAFETY vide the contractor with notice of the claim, with a specific dollar offer DRIVERS HOURS OF SERVICE alleged construction defect(s), it leaves and dace for payment; or

SECURED STORAGE AVAILABLE 2. KS.A. §60-470l(d)(Supp. 2003). 9. Id. §4704(d)(Supp. 2003). 3. Id. §4701 (a)(Supp. 2003). 10. Id. §4704(b)(Supp. 2003). 4. Id. §470 l (f) and K.S.A. §58-4202 11.ld. §4704(c)(Supp. 2003). JOHN C. GLENNON, CHTD (Supp. 2003). 12.Id. §4704(d)(Supp. 2003). A separate 5. Id. §470 I (b), (c)(Supp. 2003). provision, §4704(m), obligates the contractor OVERLANDPK, KS 66204 6. Id. §4703 (Supp. 2003). to respond in good faith ro the homeowner's 7. The statu te defines "contractor" as a notice of claim. The sanction fo r person or entity "engaged in the business of noncompliance: the contractor is estopped constructing dwellings," as contrasted with the from asserting that the homeowner did not www( .j91 ohncg3) 383-3856lennon.com business of designing dwellings. Id. comply with the Act. §4701 (e)(Supp. 2003). 13. Id. §4704(k)(Supp. 2003). Since 1977 8. KS.A. §60-4704 (Supp. 2003). 14. Id. §4704(e)(Supp. 2003).

THEJO URNAL OF THEKANSAS BAR ASSOCIATION MARCH 2005 - 21 LEGAL ARTICLE: THE KANSASRESIDENTIA L CONSTRUCTIONDEF ECT ACT: ... D. Scheduling the inspection. If the ing within 30 days after the inspection. condominium association of the con­ homeowner honors the contractor's The homeowner retains the same tractor's right to repair construction request for an inspection, the home­ unlimited discretion (set forth in sub­ defects.18 The statute even provides the owner must notify the contractor and section C above) to accept or reject the notice language: schedule the inspection within the sub­ contractor's proposal. sequent 30 days. The inspection is The Act's claim process does not Ka nsas la w contains important open to the contractor and its "agents," affect the causes of action available in requirements you must fo ffow during normal working hours, for the the homeowner's quiver of legal before you may file a la wsuit for purpose of determining the nature and theories. In fact, the Act specifically defective construction against the cause of the alleged defects and the preserves express warranty, implied contractor who constructed your nature and extent of any necessary warranty, and other contract theories. 1 7 home. Ni nety days before you file repair or replacement work. 1 5 your lawsuit, you must deliver to the contractor a written notice of E. Co ntractor's position after III. Ancillary Provisions inspection. The inspection narrows the any construction conditions you contractor's options to three alterna­ Less vexing, but equally important, affege are defective and provide tives: provisions of the Act impose new obli­ your contractor the opportunity to • offer to fix the problem at no cost gations on residential contractors in make an offe r to repair or pay for to the owner; 16 order to implement the intent of the the defects. You are not obligated to • offer to pay money to settle the statute. accept any offe r made by the con­ claim, with a specific dollar offer A. No tice of contractor's right to tractor. Th ere are strict deadlines and date forpayment; or repair construction defects. The Act and procedures under state law, • tell the homeowner the claim is requires prime contractors, either as and fa ilure to fo ffow them may disputed and neither perform addi­ part of the home construction contract affe ct your abilityto file a la wsuit. tional work nor offer a settlement. or in a separate but contemporaneous The contractor must respond in writ- notice, to notify the homeowner or

15. Id §4704(f)(Supp. 2003). results, and findings of the inspection. Id §4704(g)(l)(Supp. 2003). 16. The contractor's response must describe the proposed fix and 17. Id. §4703(b)(Supp. 2003). proposed start and finish daces. Unlike the firstgo -round, chis time the 18. Id §4706(a)(Supp. 2003). The statute does not contain a sanction contractor must also provide the owner with a report of the scope, for the contractor's failure to provide chis notice.

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22 - MARCH2005 THEJOU RNAL OF THE KANSASBAR ASSOCIATION LEGAL ARTICLE: THE KANSASRESIDENTIA L CONSTRUCTIONDEFECT AC T: ... Good contractor practice would Ace, a third party is not available to some opportunity to correct construc­ include chis notification in the home administer the arbi cracion and assist tion defects before li tigation, but with­ conscrucnon contract. with the selection of the arbitrators. out impairing the homeowners' theo­ B. Subcontractor list. For each new Third, there is some doubt whether the ries for recovery. In practice, chis dwelling, the prime contractor must homeowner's unilateral election to process secs a series of procedural trip now provide co the initial owner a list select arbitration (thereby displacing wires for uninitiated homeowners' containing the contact information and the contractor's inviolate right co a jury counsel co navigate before making it to general work description for each sub­ crial23) passes constitutional muster in the courthouse. The Ace imposes on contractor on the project. Although the all situations. 24 contractors an obligation co disclose the subcontractor list must be provided E. Effe ct on statutes of limitations. contractor's new statutory right co within 30 days afterclo sing of the sale, The Ace provides a limited safe harbor repair and co disclose the iden cicy of che statute provides no penalty fornon ­ when the statute of limitations would trade subcontractors who actually per­ compliance. Good contractor practice expire during che time period necessary formed the work on the home. Finally, would include providing chis subcon­ co comply with the claim procedure. If the Act purportedly gives to homeown­ tractor list at closing. the claimant timely files suit but the ers the unilateral right co arbitrate rather C. Insurance notification. Contrac­ suit is dismissed for failure to provide than litigate their construction defect tor insurance companies frequencly the statutory notice of defect, dispute. And it provides ample fodder debate what constitutes notice of a §4702(6) coils the statute if ch e fortest cases and good lawyering. ■ homeowner "clain1" sufficient co trigger claimant sends the notice within 90 a coverage evaluation and provision of a days of entry of the order of dismissal. About the Author defense. The Act expressly provides chat If the claimant follows the correct pro­ WyattHo ch is a partner in the law the homeowner's notice of a construc­ cedure, §4702(c) extends the statute for firm of Fou!ston Siefkin LLP and tion defect, when forwarded by the 180 days afterthe latest of three daces: practices in their contractor to its insurer (and any sub­ • the dace the claimant personally Wichita offi ce. Hoch's contractors' insurers), constitutes the serves or mails the notice of training in architec­ making of a claim under the policy.1 9 claim; ture and experience in The making of an insurance claim • the dace agreed upon for the construction place imposes a corollary duty on the con­ contractor to make its secclement him in a unique tractor to cooperate with the insurer's payment; or position to counsel investigation. • the dace agreed upon for the con­ architects, engineers, D. Arbitration at claimant's elec­ tractor to remedy the defective and contractors. His tion. After exhausting the statutory work. practice includes

claim process, the homeowner may F. Claims by condominium home­ design and construction contract drafting either bring a civil action against the owners'associations. Finally, sections and consulting, cla im negotiation, and dis­ contractor without further nocice20 or 4708 and 4709 contain a prohibition pute resolution in both arbitration and elect a statutory arbitration process pur­ against unduly influencing a home­ court settings on a nationwide basis. Hoch suant to K.S.A. §5-201 et seq.21 This owner's association board and voting serves as the Leadattorney for the firm'sc on­ statute, hoary with age (first enacted in restrictions on when a construction struction lawpra ctice. 1876) and generally ignored since the defect claim may be filed by the associ­ 1973 Kansas enactment of the Uniform acion. Counsel should carefully read Arbitration Ace (Uniform Acc),22 allows these sections of the statute when the parties to submit an existing dispute co project involves condominium owner­ arbitration by "any person or persons, co ship interests. PEOPLES be mutually agreed upon by the parties." WEALTH This provision deserves three obser­ IY. Conclusion . MANAGEMENTLLC vations. First, the election to arbitrate n� put propll_fim. rests solely with the homeowner. The Kansas Residential Construction Second, under §201 the parties must Defect Ace imposes sweeping new agree upon both the number and iden­ requirements on homeowners seeking ci cy of the arbitrators. Unlike the co make claims against their residential process anticipated by the Uniform contractor. The Ace mandates a process designed to provide contractors with

19. Id §4705 (Supp. 2003). homeowner) , FirstNat' / Bank of Olathe v. 20. Id. §4704(c)(Supp. 2003). Clark, 226 Kan. 619, 622, 602 P. 2d 1299 21. Id §4704(e)(Supp. 2003). (1979); or if the Act is interpreted as Jim Reardon J.D. CFP® 22. K.S.A. §5-401 et seq. (2001). establishing "general principles" fo r 23. KAN. CONST. BILL OF RIGHTS , §5; determining when a contractor is enticled to a Financial Advisory Services for Legal Profe ssionals K.S.A. §60-238(a). jury trial in a civil case. See Wa gher v. Guy's 1414 SW AshworU, Place, Topeka 24. A party does not have a right to a jury Foods, Inc. , 256 Kan. 300, 219, 885 P. 2d 785/271 -8097 trial if equitable relief is sought (e.g., a 1197 (1994). www.peopleswealthmanagement.com demand fo r specific performance by the Scc11ri1ics and Ailvisory Service.� offcl\.'d throu�h VSR Financial Services, Int., M,:mhcr NASD/SIPC. a Rcgi�ll·n..'tl l m·csuucm Advi�cr

THE JOURNA L OF THE KANSA S BAR ASSOCIATION MARCH2005 - 23 -

LEGAL ARTICLE: USEIT OR LOSE IT GIVING NOTICE OF TORT CLAIMS ...

Giving Notice of Tort Claims to Municipalities Under K.S.A. 12-105bld1

By Te resa L. Sittenauer

S.A. 12- 1 05b(d) requires any person with a tort claim against a municipality to submit a written notice of claim before filing suit. The notice must be filed with the clerk or governing body of the municipality and must include certain basic information. One cannot file suit unless and until the notice of claim has been presented and denied in wholeK or in part. A claim is deemed denied if no action is taken within 120 days. Filing a notice of claim operates to extend the statute of limitations in some situations. The primary purpose of the notice of claim requirement is to afford the municipality an opportunity to review and investi­ gate tort claims against it and to approve or deny such claims before having to litigate them. 1 The courts have also suggested that the statute provides protection to the taxpayers against meritless claims.2 The statute in its various forms has weathered a variety of constitutional attacks.3 While the language of the statute is fairly straightforward, Kansas cases are replete with plaintiffs who either failed to file a notice of claim, or filed a notice of claim with the wrong person, at the wrong time or with the wrong (or missing) informa­ tion. Making matters worse, noncompliance is the death of a state tort claim against a municipality. It is little wonder that some consider the statute a "trap for the unwary."4 However, despite repeated pleas for relief from missteps involving the statute, Kansas courts have consistently held plaintiffs responsible fork nowledge of the existence and operation of the statute. Fifty years ago the Kansas Supreme Court said: " (T]he statute was not intended as a trap for the unwary, but its language is elementary and without innuendo, con­ tains nothing to confuse or mislead, and the fact [plaintiff] does not comply with it does not imply he was trapped but rather that he failed to read the statute, or, having read it, neglected to comply with its requirements."5 The statute has since been amended and has, admittedly, become a bit more complicated, but its basic premise remains the same. Most of what the practitioner needs to know is spelled out in the statute. Thus, this article is designed to remind lawyers to consult the provisions of KS.A. 12-105b(d) when dealing with a claim against a municipality.

1. 20 Kan. App. 2d 579, 890 P.2d1217 ( 1994). (1999); 729 F. Supp. 1298 (D. Kan. 1990) (in the 2. 26 Kan. App. 2d context of a contract claim); 2004 WL 48680 (Kan. 379,King 380, v. 988Pimentel, P. 2d 263 (1999). The court observed that the App. 2004)U.S.D (no. 457 viol v. ationPhifer, of clue process, equal protection, First opportZeunitferjohny tov. in vestigateShawnee Countyclaims isSheriff's more me Department,aningfulwhen the incident Amendment, or Section 18 ofQuezad the Kansasa v. Payne,Constitution Bill of Rights). is "freshin the minds of those possessing lrnowleclge of the subject." 4. 177 Kan. 722, 728, 282 P.2cl373 3. 112 Kan. 729, 212 P. 682, 684 (1923); (1955). Ryan and Lynch, - 126 Kan. 153, 267 P. 7 (1928); Howell v. City 64of HutchinsoJ.K.B.A. No.n, 8, 36-41 (1995). See Dechant200v. City Kan.of Hays,112, 117, 434 P.2cl 846 (1967); 5. Seealso 17 7 Kan. at 728. Noticeof Claims Easy to Follow but Davis v. City of El Dorado, 26 Kan. App. 2d 379, 988Worliman P.2d 263 v. Timing is Important, City of Emporia, Zefe,john v. Howell, Shawnee County Sheriff's Dept. , 24 - MARCH 2005 THE JOURNAL OF THE KANSA S BAR ASSOCIATION LEGAL ARTICLE: USEIT OR LOSE IT - GIVING NOTICEOF TORTCLAIMS ... I. Introduction II. Scope of K.S.A. 12-l0Sb(d) Kansas Tu rnpike Authority,23 the court held that the Kansas Turnpike Authority Some form of notice of claim provi­ (KTA) does not meet the definition of a sion applicable to municipalities has A. The statute applies to municipality for purposes of KS.A. 12- been on the books since the 19th cen­ municipalities. K.S.A. 12-1O5b(d) requires chat a l O5b(d). The court observed chat the tury.6 The earlier versions provided chat notice of claim be filed before bringing KTA is an arm or agency of the state, and no action could be maintained against a a tort claim against a municipality. since the definition of municipality in city for injury to person or property Municipalities are defined in KS.A. KS.A. 12-105a(a) does not include the unless the party injured, within some 12-1O5a(a) to mean and include a state or its agencies, the notice of claims period of months following the injury statllte did not apply. Further, the KTA's and prior to bringing suit, filed with "county, township, city, school ability to collect coils did not mal(e it a the city clerk a written statement giving district of whatever name or "taxing unit" because the tolls were volun­ the time, place, and circumstances of nature, community junior college, tarily paid and could be avoided by talcing the injury.7 Until 1968, the notice pro­ municipal university, drainage an alternate route. Rockers' claim was lost vision was wholly contained within district, cemetery district, firedis­ because the statute of limitations ran while KS.A. 12-105. trict, and other political subdivi­ Rockers was awaiting a response to a In 1968, the Kansas Legislature enacted sion or taxing unit, and including notice of claim which need not have been KS.A. 12-1O5a and 12-1056.8 KS.A. their boards, bureaus, commis­ filed.24 12-1O5a(a) contained a broader defini­ sions, committees and other agen­ tion of municipality, including not only cies, such as, but not limited to, 2. Municipal employees acting cities but ocher political subdivisions and library board, park board, recre­ within the scope of employment taxing units. KS.A. 12-1056 supplied the ation commission, hospital board The definition of municipality in method for submitting various types of of trustees having power to create KS.A. 12-105a(a) does not specifically claims against a municipality. KS.A. 12- indebtedness and make payment mention municipal employees. 105 was repealed in 1979.9 of the same independently of the However, Kansas courts have applied In 1987, the Kansas Legislature parent unit." KS.A. 12-1O5b(d) to claims against a amended KS.A. 12-1056 to include the notice provision for core claims repealed 10 1. Municipalities in KS.A. 12-105. At the same time, K.S.A. 12-1O5b(d) is most the Legislature also added language, oftenapp lied to cities or coun­ which provided that "substantial com­ ties. The notice of claims pliance" with the requirements of the statute has also been applied statute would suffi ce for the filing of a to a cemetery district, 14 11 valid claim. This amendment became municipal hospital, 1 5 school 12 what is now KS.A. 12-1O5b(d). district, 1 6 commu ni cy col­ The Kansas Legislature recently lege, 1 7 housing authority, 1 8 amended KS.A. 12-1O5b(d) to simplify county hospital, 1 9 airport the determination of how much time a authority, 20 interlocal munici­ claimant has co file suit after denial of a pal agency responsible for gas 1 3 tort claim. This change will be supplies,21 and a county emer­ addressed in further detail below. gency medical services organi­ zation, 22 among other entities. Beware of filing a notice of claim against an entity chat is not a municipality. In Rockers v.

6. L. 1872, Ch. 100, § 69. and wanton negligence, communitycol lege was a party). See also Bland 7. See, e.g., L.1 903, Ch. 122, § 7; R.S. 1923 § 12-105. v. Ka nsas City, Kan. Co mmunity College, 271 F. Supp. 2d 1280, 1286-87 8. L. 1968, Ch. 3 7 5, § 1 -2. See also Bell v. Ka nsas City Ka nsas (D. Kan. 2003) (in determining whether communitycoll ege was arm of Housing Authority, 268 Kan. 208, 216, 992 P.2d 1233 (1999). the state forpur poses of Eleventh Amendment analysis, noted that 9. L. 1979, Ch. 186, § 33. Kansas law - including K.S.A. 12-105a - characterizes community 10. L. 1987, Ch. 353, § 9. colleges as municipalities). 11. Id. 18. Bell v. Ka nsas City, Kansas Housing Authority, 268 Kan. 208, 992 12. Id. P.2d12 33 (1999). 13. L. 2004, Ch. 10, § I. 19. Smith v. Kennedy, 26 Kan. App. 2d 351, 985 P.2d715 , rev. denied 14. Dill v. Barnett Fu neralHo me Inc., 2004 WL 292124 (Kan. App. 268 Kan. 888 (1999). 2004), rev. denied _ Kan. _ (2004). 20. Ca nnady v. Wichita Airport Authority, 1997 WL 86331 (D. Kan. 15. Kn orp v. Albert, 29 Kan. App. 2d 509, 28 P.3d 1024, rev. denied 1997). 272 Kan. 1418 (2001). 21. Ka nsas Mu n. Gas Agency v. Vesta Energy Co., Inc. , 840 F. Supp. 16. Dunn v. Un ified School Dist. No . 367, 30 Kan. App. 2d 215, 40 814 (D. Kan. 1993). P.3d315 , rev. denied 274 Kan. 1111 (2002). 22. Hilyard v. Olsen, 1992 WL 190629 (D. Kan. 1992). 17. See, e.g., Robison v. State, 30 Kan. App. 2d 476, 480, 43 P.3d821 23. 268 Kan. 110, 991 P.2d889 (1999). (2002) (mentioning that K.S.A. 12-1056 notice failed to allege gross 24. Id. at 114-16.

THEJOU RNA L OF THEKANSAS BAR ASSOC IATION MARCH 2005 - 25 LEGAL ARTICLE: USEIT OR LOSE IT - GIVING NOTICE OF TORTCL AIMS ... municipality as well as its employees Kansas Tort Claims Act (KTCA), acting within the scope of employment. K.S.A. 75-6 101 et seq., municipalities If plaintiff brings a claim against a became liable for such acts. Further, municipal employee acting within the municipalities must now provide a scope of employment, the municipality defense for and indemnify employees must receive notice of claim even if the faced with such claims. These changes municipality itself is not sued. Where in the law, the Kingcourt reasoned, jus­ plaintiff brings a claim against the tified a change in the interpretation of municipality and its employees, written K.S.A. 12- 1O5b(d) from chat outlined notice of claim to the municipality in Bradford. 29 alone is sufficienc. 2 5 Since King, state and federal courts In King v. Pimentel,26 plaintiff sent continue to apply K.S.A. 12-1O5b(d) " notice of his negligence claim to the to municipal employees acting within In 1987, the city. He lacer sued the city and a variety the scope of employmenc.30 of city employees acting within the Notice is not required for claims Ka nsas scope of their employment. The against independent contractors. Legislature employee defendants argued chat the K.S.A. 12-1O5b(d) notice need not be statute of limitations barred plaintiff's sent co a municipality where plaintiff's amendedKS .A. claims against chem because they were claim applies only to an independent filed beyond the statute of limitations. contractor performing work for a 12-105b to Plaintiffargued chat his notice of claim municipality. 31 This is so because inde­ extended the statute of limitations. The pendent contractors who perform work include the employee defendants countered chat for government bodies cannot be sued noticepr ovision since the notice provisions did not under the KTCA.32 apply to them, plaintiff 's notice of fortor t claims claim to the city did not extend the B. K.S.A. 12-I0Sb(d) applies to statute of limitations as to the employ­ claims under the Kansas Tort repealedin 27 Claims Act. ees. The district court agreed. K.S.A. 12-1056 sets forth a manda­ KS.A. 12-105. The Kansas Court of Appeals tory procedure for submitting claims reversed. It observed chat the district against municipalities. Subsection (a) court mistakenly relied on the dated At the same 28 applies to all claims an individual may decision of Bradfordv. Mahan, where have against a municipality. It provides time, the the court held an older version of the chat all claims against a municipality Legislaturealso statute did not apply to municipal must be submitted in writing, in the employees. The King court recognized form of a statement of account or other that when Bradfo rd was decided, a document. Subsections (6), 33 (c) ,34 addedla nguage municipality was not liable forthe neg­ (e),35 (f),36 (g),37 (h),38 and (i)39 deal which provided ligence of its employees, even when with ocher types or aspects of claims they acted within the scope of their against municipalities chat are beyond that 'substantial employment. With the advent of the compliance' with 25. Miller v. Brungardt, 916 F. Supp. 1096, 33. Subsection (b) deals with claims for the requirements 1100 (D. Kan. 1996). salary or wages. 26. 20 Kan. App. 2d 579, 890 P.2d 1217 34. Subsection (c) states that no costs may ofthe stat ute (1994). be recovered against a municipality forclaims 27. Id. at 588-89. allowed in part unless the claimant obtains wouldsu fficefor 28. 219 Kan. 450, 548 P2d 1223 (1976). judicial relief greater than the amount allowed 29. King, 20 Kan. App. 2d at 588-90. by rhe municipality. thefilin g ofa 30. See, e.g., Knorp v. Albert, 29 Kan. App. 35. Subsection (e) deals with advance and 2d 509, 513, 28 P. 3d 1024, rev. denied 272 late payments made by a municipalityand the val.t d cl aim. · " Kan. 1418 (2001); Orr v. Heiman, 270 Kan. attendant discounts and/or penalties attached 109, 112, 12 P. 3d 387 (2000); Miller v. thereto. Brungardt, 916 F.Supp. 1096, 1099-1101 (D. 36. Subsection (f) addresses travel Kan. 1996). reimbursement forcity employ ees. 31. Knorp, 29 Kan. App. 2d at 513. 37. Subsection (g) deals with claims 32. Id. In Knorp, the court observed that the submitted by members of a municipality's self­ definition of "employee" contained in the insured health plan. KTCA specifically excludes an independent 38. Subsection (h) addresses claims made by contractor. Neither an independent contractor students to a school district forgas or food nor the municipality with which he or she money forextra curricular activities. contracts must receive a notice of a tort claim 39. Subsection (i) imposes an audit pursuant to K.S.A. 12-105b(d) since the statute requirement on claims made under applies only to claims brought under the KTCA. subsections (e) and (f).

26 - MARCH2005 THEJO URNAL OF THEKANSAS BAR ASSOCIATION LEGAL ARTICLE: USEIT OR LOSEIT - GIVING NOTICE OF TORT CLAIMS... the scope of this article. stantial compliance means "compliance stantial compliance language, according Subsection (d) applies to claims that in respect to the essential matters neces­ to the Tucking court's reasoning, was may be brought under the KTCA. The sary to assure every reasonable objective simply a codification of existing law.48 subsection applies to tort claims, not of the statute."45 While this definition Thus, the Tucking court was comfort­ contract claims.40 The subsection does is helpful, it is not terribly specific to able resting its analysis on pre-1987 not apply to federal claims under 42 the issues raised under K.S .A. l 2- cases, which, even the court admitted, U.S.C. § 1983.41 It applies to claims by l 05b(d). were "fairly strict in determining the minors, as well as adults.42 It applies to minimum requirements for notice, the claims of otherwise incompetent 1 . Complete lack of an despite language about substantial com­ plaintiffs.4 3 element is fatal. pliance."49 The court cited a trio of Subsection (d) states that substantial cases in which the plaintiffs' claims were compliance with the requirements of dismissed because the notice of claim III. Notice of claim this section shall constitute a valid fil­ was missing at least one element. The ing of a claim. The question becomes court followed these cases in affirming A. The content of the notice must "what is substantial compliance?" The the dismissal of Tucking'scase. 50 address fiveelements. Kansas courts have held that the com­ The Court of Appeals followed KS.A. 12-105b(d) dictates the con­ plete lack of any one element in the Tucki in Wi ins v. Housing Authority tent of a notice of tort claim submitted notice is fatal. In Tucking v. Board ng gg of Kansas City, Kan., 5 1 where plaintiffs under this section. The notice must Commissioners of Jefferson County, °£6 sued for retaliatory discharge based on contain five elements: 1) claimant's plaintifffell on a sidewalk and was whisrleblowing activity. Their notice of name and address, and the name and injured. She filed a notice of claim that claim mentioned other claims, but not address of the claimant's attorney, if did not state her monetary damages retal iatory discharge. The court any; 2) a concise statement of the facts nor the nature and extent of her injury. affirmed the grant of summary judg­ underlying the claim, including the She provided her attorney's address, but ment on this claim, stating simply: date, time, place, and circumstances of not her own, and did not specifythe "Since the Housing Authority had no the act, omission, or complained-of time or circumstances of the accident. notice that plaintiffs claimed retaliatory event; 3) the name and address of any She filed suit, and it was dismissed.47 discharge, it could not properly investi­ public officer or employee involved, if On appeal, Tucking argued that her gate those claims."52 known; 4) a concise statement of the notice was enough to accomplish the nature and extent of the claimed injury; goal of the statute, that is, to allow the (continued on next page) and 5) a statement of monetary dam­ county an opportunity to investigate ages requested. her claim. The Court of Appeals dis­ The statute says "substantial compli­ agreed. It noted that even though prior ance" with these requirements is versions of the statute did not contain enough to constitute a valid claim. The the substantial compliance language, statute does not define substantial com­ substantial compliance was nonetheless pliance. Courts in some K.S.A. 12- an implied element of the statute and 105b(d) cases have looked to City of 44 was all that was ever required. The Lenexa v. City of Ofathe, which said 1987 amendment that added the sub- that, in the annexation context, sub-

40. Wiggins v. HousingAut hority of Kansas positive in its command. It does not recognize City, Kan., 19 Kan. App. 2d 610, 612, 873 excuses." P.2d13 77 (1994). 44. 233 Kan. 159, 660 P. 2d 1368 (1983). 41. Sage v. Williams, 23 Kan. App. 2d 624, 45. Id. at 164. 631, 933 P.2d775, rev. denied 262 Kan. 962 46. 14 Kan. App. 2d 442, 796 P.2d 1055, (1997); Reidenbach v. U.S.D. 437, 878 F. rev. denied 246 Kan. 770 (1990). Supp. 178, 181 (D. Kan. 1995). 47. Id. at 447. 42. Fox v. Cityof OverlandPark, 210 Kan. 48. Id. at 446. 16, 499 P.2d 524 (1972); Thomas v. City of 49. Id. Coffeyville, 145 Kan. 588, 66 P. 2d 600 50. Id. at 446-47, citing McHenry v. Kansas (1937). City, 101 Kan. 180, 165 P. 664 (1917) (notice 43. Workman v. City of Emporia, 200 Kan. of claim gave wrong date of injury); Hagga rd 112, 434 P.2d 846 (1967). See also Davis v. v. Arkansas City, 116 Kan. 681, 229 P. 70 City of El Dorado, 126 Kan. 153, 267 P. 7 (1924) (notice of claim did not describe (1928), where plaintiffwas a city employee location of accident); Wildin v. City of who was injured on the job. He did not filea Hutchinson, 177 Kan. 671, 282 P. 2d 377 notice of claim for his injuries within the (1955), overruledon other grounds, Lux v. City three-month time frame. He filedsuit, then of Topeka, 204 Kan. 179, 460 P.2d54 1 (1969) argued that he was not required to file a (notice did not designate date or place of notice of claim because he was incapacitated injury). and physically unable to file a notice at the 51. 19 Kan. App. 2d 610, 873 P.2d 1377 relevant time. The court was unsympathetic. (1994). In dismissing his claim, it said: "The statute is 52. Id. at 614.

THEJO URNA L OF THEKANSA S BAR ASSOCIATION

MARCH 2005 - 27 I LEGAL ARTICLE: USEIT OR LOSE IT - GIVING NOTICE OF TORT CLAIMS ... The federal courts have taken a simi­ lar tack. In Mick v. Brewer,61 the court said the statute required only that the plaintiffset forth the factual basis for the claim and need not "set forth in detail the legal theory behind the claim."62 In Cannady v. Wichita Airport Authority,63 plaintifffiled a notice of claim after he slipped and fell from a flight of steps. Plaintiffmen t ioned a lack of railings but did not outline other theories of liability. The court held that the notice was sufficient to enable the city to investigate the inci­ dent and refused to dismiss plaintiff's emotional distress, or the nature and negligence claims to the extent they The federal courts have not hesitated extent of her injury. The court dis­ were based on other acts of negligence, such as lack of nonslip stair treads or to follow Tucking. In Carney v. City of missed the state law claims against the 64 Shawnee,53 plaintiffsu ed the city and school district because the notice of lack of adequate lighting. others forsexual harassment and inten­ claim did not substantially comply with One federal case a bit offthe beaten 65 tional infliction of emotional distress. the statute.58 path is Tank v. Chronister. There, The court held that plaintiff's notice of plaintifffiled suit against a county hos­ 2. An attempt claim did not substantially comply with to state each pital and one of its doctors following the statute because it did not provide element substantially complies the death of his wife. He did not file a Lest plaintiffs get discouraged, the plaintiff's address, the address of the notice of claim. Defendants sought to courts have drawn a silver lining public officers involved, the nature and dismiss plaintiff's state claims based on around the notion of substantial com­ extent of the injury, or a statement of lack of notice. The court held that pliance. While the complete lack of an monetary damages.54 plaintiffsu bstantially complied with 55 element is fatal, a notice, which K.S.A. 12-105b(d) through the filing In Bash v. City of Galena, plaintiff attempts to address each element - police officer became upset about the of a previous lawsuit against the hospi­ even if not in so many words - has application of a city residency require­ tal that was brought in order to pre­ been held substantially compliant with ment. He submitted a "position state­ serve access to his wife's medical the requirements of the statute. 66 ment" on the matter to the city records. The court said: In Mitchell v. Un ed Government of council. Later, he sued the city for, i!j Wyandotte County, 9 plaintiffs filed a "[T]hrough the pleadings sub­ among other things, retaliatory dis­ notice that described the facts underly­ mitted by counsel for Ta nk in charge. He claimed the "position state­ ing their state law claims against the connection with the action for ment" was his notice of claim. The county following entry and search of injunctive relief and through court observed that the statement did their home by police. The notice of other correspondence, the not include plaintiff's address, the facts claim did not specifically state that administrators of defendant hos­ regarding the discharge claim, or a plaintiffs planned to sue forassault and pital were presented with infor­ statement of monetary damages. The battery. The district court granted sum­ mation relevant to all of the key court dismissed the retaliatory dis­ mary judgment on the state law claims elements of K.S.A. 12-105b(d) . charge claim for lack of roper notice ... The plaintiffhere clearly ful­ fi6 based on inadequacy of the notice. The under K.S.A. 12-105b(d). filled the purpose of the statute 57 Court of Appeals reversed, concluding In Miller v. Brungardt, a school that since plaintiffs set forth facts sug­ by giving a clear indication to the teacher sued the school district and gesting an assault and battery in the hospital of the claim that would others forsexual harassment, retaliatory notice, their failure to specifically name be raised against it, along with discharge, and emotional distress. Her these causes of action was not fatal to information, which would allow notice of claim did not include a state­ their claim. 60 the hospital to adequately investi­ ment of monetary damages, mention of gate the basis forthe claim."67

53. 38 F. Supp. 2d 905 (D. Kan. 1999). 59. 2004 WL 1965583 (Kan. App. 2004). 54. Id. at 914. 60. Id. at *3. 55. 42 F. Supp. 2d 1171 (D. Kan. 1999). 61. 1997 WL 225908 (D. Kan. 1997). 56. Id. at 1186. See alsoJo nes v. City of Topeka, 764 F. Supp. 1423, 62. Id. at *6. 1432 (D. Kan. 1991) (plaintiff's "grievance" filed with city lacked 63. 1997 WL 86331 (D. Kan. 1997). description of injury and statement of monetary damages; state tort 64. Id. at *11-12. claims defeated on summary judgment). 65. 941 F. Supp. 969 (D. Kan. 1996). 57. 904 F. Supp. 1215 (D. Kan. 1995). 66. Id. at 974-75. 58. Id. at 1218. See also Mitchell v. Coffey CountyHos p., 903 F. Supp. 67. !cl. at 975. 1415, 1429 (D. Kan. 1995) (retaliatory discharge claim against hospital dismissed because it was not mentioned in the notice of claim).

28 - MARCH2005

THEJOURN AL OF THEKANSAS BAR ASSOCIATION LEGALART ICLE: USEIT OR LOSE IT - GIVING NOTICE OF TORT CLAIMS ... There is no discussion in the opinion substantially complied with the statute. of where or with whom the erstwhile Substantial compliance has recently "notice of claim" was filed, or when or been applied where plaintiff served a whether the municipality had a chance notice of claim upon the school super­ to deny the claim. For this reason, intendent rather than the clerk of the Tank is less than ironclad authority on school board. In Orr v. Heiman,73 the the topic of substantial compliance. court reasoned that since the superin­ tendent by statute had "charge" of the 3. Better safe than sorry school district, it was acceptable to For those who subscribe to the theory serve a notice of claim upon him rather of "more is more" or "better safe than than the clerk of the school board. The sorry," rest assured that going beyond court said: "While it obviously would the fiveelements in the notice of claim is have been better practice to mail the acceptable under the statute. As long as letter to the clerk, we are hard pressed some semblance of the five elements is to not agree with the trial court that by there, unnecessary information does not sending the notice to the superintend­ affect the validity of the notice. 68 The ent of schools, who is statutorily recog­ ''K.s.A. 12- contents of the notice are not admissible nized to 'have charge and control of the in a subsequent judicial proceeding.69 105b(dJ public schools,' substantial compliance B. The notice of claim must be with 12- l0Sb(d) was met."74 requires that filedwith the clerk or governing body. C. Do not file suit until the claim the notice of KS.A 12- l0Sb(d) requires that the is rejected or deemed rejected. notice of claim be filed with the clerk K.S.A. 12-I0Sb(d) cautions the claim be filed claimant that once a notice of claim is or governing body of the municipality. filed, no action shall be commenced with the clerk This seems straightforwardenough, but • there appears to be an impulse to file a until claimant receives notice that the claim has been denied or until 120 days or governing notice of claim with the city or county have passed, whichever occurs first. A attorney instead. As sensible as this may claim is deemed denied unless some body of the seem, submitting a notice of claim ro the city or county attorney (or county agreement to satisfythe claim as a whole municipality. is made prior to the expiration of 120 counselor) alone is not sufficient.70 days. A claim denied even in part is still The notion of substantial compliance Th is seems denied, and the filing of suit may follow. has been applied to plaintiff'sselection of Not surprisingly, faxing a notice of straighiforward the recipient of the notice of claim. For claim to a municipality and filing suit instance, notice filed with the city attor­ one hour later is not acceptable under enough, but ney and copied to the city clerk - where 75 the body of the letter indicated the notice the statute. there appearsto Some claimants become nervous as was submitted to both - was held sub­ the statute of limitations period draws stantially compliant with the statute.71 be an impulse near and decide to filesuit even though Substantial compliance has also come to file a notice into play when the municipality at K.S.A. 12- l0S b(d) provides for an issue - a county hospital - did not extension of the statute of limitations in some circumstances. In Braxton v. of claim with have a "clerk" per se and identification of the "governing body" of the hospital Un ified Government of Wyandotte the city or County,76 plaintifffi led a notice of was difficult. In Smith v. Ke nnedy,72 the claim mere days before the statute of court solved the conundrum by con­ county attorney limitations expired. He filed suit the cluding that a notice of claim sent to next day, along with an amended notice instead. " both the county clerk and the chief of claim. He asked the court clerk to executive officer of the county hospital

68. Burroughs v. City of Lawrence, l 16 Kan. 72. 26 Kan. App. 2d 351, 358, 985 P. 2d 681, 227 P. 328 (1924). 715, rev. denied 268 Kan. 888 (1999). 69. KS.A. 12-105b(d). 73. 270 Kan. 109, 12 P3d 387 (2000). 70. Huffman v. City of Prairie Village, Ka n., 74. Id. at 114-15. 980 F. Supp. 1192, 1206 (D. Kan. 1997) 75. Dunegan v. City of Co uncil Grove, Ka n., (notice filed with city attorney not sufficient); Water Dept., 77 F. Supp. 2d 1192, 1206 (D. Zeferjohn v. Shawnee County Sheriff's Dept. , 26 Kan. 1999) (The court aptly observed chat Kan. App. 2d 379, 988 P. 2d 263 (1999) plaintiff's strategy "does not allow any pre­ (notice fi led with county attorney not investigation period by the [c]icy. ") sufficient). 76. 2004 WL 90063 (Kan. App. 2004), rev. 71. Shaffer v. City of Topeka, 30 Kan. App. denied _ Kan. _ (2004). 2d 1232, 57 P.3d 35 (2002).

MARCH2005 - 29

THE JOURNAL OF THE KANSASBAR ASSOCIATION I LEGAL ARTICLE: USE IT OR LOSE IT - GIVING NOTICE OF TORT CLAIMS ... file nor is a reasonable period even suggested. Certainly a filing on the same day as the denial would comply with the statute, but anything beyond that is going to create some jeopardy for the plaintiff... "81

A. The courts address the second "trap." The Court of Appeals came upon one variation of the second "trap" in Martin v. Board of County Commissioners of Johnson County. 82 In Martin, plaintiffwas sitting on a man­ hold service on the petition. One while a notice of claim was pending, hole cover when it collapsed. She fell hundred and twenty days passed "such time period shall be extended by into the manhole and was injured.83 without a response fromthe county. the time period required for compliance She filed suit against the county. Her Approximately one month later, plain­ with the provisions of this subsection." suit was dismissed without prejudice. tiffcaused his petition to be served.77 What exactly did this mean? She filed a notice of claim before the Defendant moved to dismiss based Further, it became apparent that clever statute of limitations expired, then on K.S.A. 12-105b(d), arguing that defense attorneys could advise municipal refiledher suit. 84 plaintiffhad commenced the action clients on when and how to deny claims The county filed a motion to dismiss after filing a notice of claim but before with one eye on the statute and another on the basis that Martin's suit was the claim had been denied or deemed on the calendar. With a bit of planning, untimely filed. It was denied. On denied. Plaintiffprotes ted that he filed the statute could be used to shorten sig­ appeal, the issue was how to calculate suit early "due to the peculiar state of nificantly the amount of time available the extension of the statute of limita­ the law in Kansas, in which the time to a claimant to file suit aftera denial. At tions. 85 for filing suit against the county varies the very least, the statute created confu­ The Court of Appeals concluded: depending on when the county denies sion as to the effect of a denial on the the plaintiff's claim."78 The court was statute of limitations. Prudent plaintiffs' "If the rejection period of a unsympathetic, concluding that plain­ attorneys advised their clients to file suit notice of claim filed pursuant to tiff's petition was prematurely filed. immediately upon denial of a claim, 12-105b(d) extends beyond the The court observed that plaintiff's regardless of the circumstances. As a end of the statute of limitations claim could have been preserved easily practical matter, however, this sometimes period, the statute of limitations enough by filing an amended petition could not - or simply did not - occur. is extended by the amount of after his claim had been denied or by An article in the journalof the Kansas time that elapses between the fil­ simply filing a new lawsuit.79 Bar Association presaged the statute of ing of the notice of claim with limitations problem created by K.S.A. the municipality and its rejec­ IY. Filing a notice of claim 12-105b(d). 80 The article identified tion. The length of the extension extends the statute of two "traps" in the statute. of the statute of limitations will limitations in certain vary fromcase to case, but the circumstances. "The first occurs when the claim longest possible extension of the is filed and the 120 days run statute of limitations would be Kansas courts have long recognized shortly before the statute of limi­ 120 days." 86 that K.S.A. 12-105b(d) presents rough tation expires. In that situation, The court in Martin was satisfied terrain on statute of limitations issues. In prudence would require an that it had alleviated the second "trap" 2004, the Kansas Legislature amended immediate filingupon the denial. this section in an attempt to simplifythe involving claims denied after the statute of limitations had run. The court issues and eliminate so-called timing A second trap is where the 120 observed that the first "trap" remained, "traps" inherent in the statute. Prior to days run or the denial itself is but could be easily remedied by the the change, K.S.A. 12-105b(d) dictated made after the statute of limita­ Legislature with an amendment to pro­ that if the statute of limitations on a tort tion has expired. There is no time vide a period certain forfilin g an action claim against a municipality expired set for extension within which to

77. Id. at *l. 81. 57 J .K.B.A. ac 28. 78. Id. 82. 18 Kan. App. 2d 149, 848 P.2d 1000 (1993). 79. Id. at *2. 83. Id. at 151. 80. Palmer and Snyder, A Practitioner's Guide to Tort Reform of the 84. Id. at 154. '80s: WhatHappened and What's LeftAf ter judicial Scrutiny, 57 J.K.B.A. 85. Id. at 153. No. 9 21-28 (Nov./Dec. 1988). 86. Id. at 156-57.

THEJO URNAL OF THE KANSAS BAR ASSOCIATION 30 - MARCH 2005 LEGAL ARTICLE: USEIT OR LOSE IT - GIVING NOTICE OF TORT CLAIMS ... after a claim had been denied. The Judge Elliott once again concurred in granting review in Cummings. 99 On court, referring to a similar provision in order to highlight the "traps" created by review, plaintiffargued that if the statute the Federal Tort Claims Act, concluded the statute and urge the Legislature to of limitations expired while the city that "[a] statute which makes clear pro­ amend ir.94 considered her notice of claim, she was vision fora period during which a The issue, at least as to the second entitled to a flat 120-day extension of claimant is to file an action after the "trap," appeared to be settled. However, the statute of limitations. She argued notice of claim is denied is preferable to just two weeks later, a split panel of the that this 120-day extension applied a statute such as 12-105b(d) that cre­ Court of Appeals took an unlikely view whether the city rejected her claim after ates traps." 87 of KS.A. 12-105b(d). In JP Asset Co., only a few days or allowed the claim to The Court of Appeals applied Inc. v. City of Wi chita,95 plaintifffiled a be deemed denied after 120 days had Ma rtin to the same effect in Ki ng v. notice of a contract claim with the city passed. She also urged the court to fol­ PimenteL. 88 There, King filed a notice of a few days before the statute of limita­ low JP Asset and add the 120 days to claim with the city. The statute of limi­ tions expired. The city denied the claim the date she received notice that her tations expired. The city took no 40 days later. Approximately two weeks claim was rejected, rather than simply action. One hundred and twenty days later, plaintiff filed a motion to amend adding it to the statute of limitations. passed. Approximately three weeks its petition to assert tort claims against The Court rejected both arguments.100 later, King filed suit. 89 The district the city. The district court granted the First, the Court followed Martin and court held that the statute of limita­ motion to amend but reserved a ruling King in extending the period of time tions expired on the day King's claim on the timeliness of the tort claims.96 for filing suit by the number of days was deemed denied, that is, upon expi­ The district court concluded that the the municipality considered the claim. ration of the 120 days. The Court of tort claims were barred by the statute of The Court reasoned that doing so Appeals reversed, reasoning that 120 limitations. Plaintiff appealed. The "results in no prejudice against - and days were added to the statute of limi­ Court of Appeals reversed, concluding just as important, also no advantage to tations, making King's suit timely. that plaintiff's amended petition raising - the claimant." Cummings' interpre­ The Court of Appeals continued90 the the tort claims was timely. The court tation, on the ocher hand, would have trend in Cummings v. City of Lakin. 9 1 reasoned that the city denied plaintiff's gone beyond neutralizing prejudice to In Cu mmings, the plaintiffstepped on a claim after 40 days, thus, the statute of creating an "enlargement of time with­ manhole cover and fe ll. She decided to limitations should be extended 40 days out any basis in policy." sue the city. She filed a notice of claim beyond the date of the city's rejection (continued101 on next page) a few days before the statute of limita­ of plaintiff 's claim. Since plaintiff tions expired on her negligence claim. sought to amend his petition only two The city denied the claim in a letter. weeks after the city's denial, the tort Approximately two weeks later, claims were timely. Once again, the Cummings filed suit. The district court court suggested that the Legislature granted the city's motion to dismiss, amend KS.A. 12-105b(d) to conform concluding that Cummings' claim was to the provisions of the Federal Tort not timely filed.92 Claims Act regarding the time for filing The Court of Appeals considered a claim.97 Martin and Kingand affirmed, holding Judge Knudson dissented from the that the statute of limitations in a majority's reasoning on the statute of KS.A. 12-105b(d) case is extended by limitations issue. He pointed out chat the amount of time elapsed between under Ma rtin, the 40 days should have the filing of a notice of claim and the been added to the expiration of the claimant's receipt of denial. In statute of limitations, not the date the Cummings' case, she received a denial claim was denied by the city. Thus, 59 days after filing her notice. Thus, plaintiff's attempt to add tort claims the statute of limitations was extended was untimely, and the decision of the by 59 days. Since she did not file suit district court in chis regard should have within the statute of limitations plus 59 been affirmed.98 days, her suit was untimely and was The Kansas Supreme Court seized the barred.93 opportunity to address the issue by

87. 18 Kan. App. 2d at 158. 95. 31 Kan. App. 2d 650, 70 P. 3d 711 88. 20 Kan. App. 2d 579, 890 P.2d 1217 (2003). (1994). 96. Id. at 651-52. 89. Id. at 591. 97. Id. at 655. 90. Id. at 591-92. 98. Id. at 656-57. 91. 31 Kan. App. 2d 532, 67 P. 3d 166 99. Cummings v. City of Lakin, 276 Kan. (2003). 858, 80 P.3d356 (2003). 92. Id. at 532-33. 100. Id. at 860. 93. Id. at 533-34. l 0 I. Id. at 862. 94. Id. at 535.

MARCH2 005 - 31

THE JOURNAL OF THE KANSASBAR ASSOCIATION LEGAL ARTICLE: USEIT OR LOSE IT - GIVING NOTICE OF TORT CLAIMS ... Next, the Court held that any exten­ commenced within the time notice of claim to the county, then filed sion of time would run from the expi­ period provided for in the code of suit once again. Plaintiffs claimed the ration of the statute of limitations, not civil procedure or it shall be forever second suit was timely, even though fromthe date the claimant received the barred, except chat, if eet'Hpliaflee filed beyond the statute of limitations, denial. The Court rejected the major­ "ith rhe pro,isiefl:3 ef rhis sttbsee because K.S.A. 60-518 applied to ity's application of K.S.A. 12-105b(d) riefl "ettld. erher.. ise resttlE iH rhe extend the time in which notice of in J.P.Asset, concluding that it would baniHg ef at'l: aeriefl, stteh rirtte claim may be given. The district court 112 provide a benefit to claimants unwar­ peried. shall be eicreHd.ed. by rhe disagreed and dismissed the case. ranted by the language of the statute or Ett'l:'l:e periecl wittired. fa1· eempli The Kansas Supreme Court trans­ by its legislative history. 102 an ee "irlr rlre pro,isieHs ef rhis ferred the case on its own motion. It Thus, the Kansas Supreme Court sttbseerieH. a claimant shall have considered K.S.A. 60-518, which states upheld the decision of the district court no less than 90 days from the date chat if an action is commenced in due and the Court of Appeals that plaintiff's the claim is denied or deemed time, and plaintifffai ls ocher than on suit was barred by the statute of limita­ denied in which to commence an the merits and the statute of limitations tions. Justice Nuss, author of the opin­ accion." 110 has expired, plaintiffmay commence a ion, assured his readers that the Court new action within six months of the was "not turning a blind eye to the What does this mean? It appears that failure. The Court also considered 'traps"' inherent in K.S.A. 12-105b(d). as long as a notice of claim is filed KS.A. 12-105b(d) , which states repeat­ He all but waved a red flag in front of within the statute of limitations, edly chat before commencing an action, the Legislature when he said: "We agree claimant will have at least 90 days from the plaintiffmust filea notice of claim with the concurring opinion of Judge the date the claim is denied or deemed with the municipalicy. 113 Elliott in the Court of Appeals opinion denied to file a claim. The change The Court concluded chat since no in the instant case, i.e. , it is for the removes the ability of a municipality to action can be commenced against a Legislature to address this problem, shorten the period of time following municipality unless and until a notice of should they feela need to do so. To dace, denial in which claimant must decide claim is filed and denied or deemed 10 years afterMar tin, they have noc." 103 whether to go forward and file suit. denied, plaintiffs in the instant case did Every claimant has at least 90 days to not properly commence their action in B. The Kansas Legislature decide. The change also clarifies the due time as required by the savings attempts to eliminate the traps. method for calculating when the 90 statute, K.S.A. 60-518. In fact, plaintiffs The Cummings decision was filed days begins to run - on the dace the did not commence the action until they Dec. 12, 2003. A few weeks later, the claim is denied or deemed denied. filed the notice of claim, then filed the House Judiciary Committee introduced second suit. This was beyond the statute a bill amending K.S.A. 12-105b(d) to C. Other statute of limitations of limitations and the suit was barred. 114 state chat a claimant would have no less issues The timing traps are not the only than 90 days from the date a claim is 2. K.S.A. 60-215(c) and relation denied or deemed denied to commence statute of limitations issues raised by back an action against a municipality. 104 The operation of K.S.A. 12-105b(d). In j. P Asset, 115 plaintiff filed suit supplemental note to H.B. 2553 Plaintiffs have attempted to save against the city in contract. Plaintiff referred to Cummings and J.P.Asset as untimely claims by invoking the savings then filed a notice of additional tort catalysts forthe change. 105 statute, K.S.A. 60-518, as well as the claims against the city within the The Kansas Bar Association sup­ relation back provisions of K.S.A. 60- statute of limitations. The city denied 2 l 5(c). Neither attempt has succeeded. ported the bill. JOG It passed unani­ the claims a few weeks lacer. After the mously, and without amendment, in 1. K.S.A. 60-518, the savings statute of limitations had run, plaintiff the House and Senate. 107 It was signed statute attempted to amend its petition to add by the governor on March 29, 2004. 108 In Gessner v. Phillips County the tort claims. The Court of Appeals It took effect upon its publication in Commissioners, 111 plaintiffs were hit by held chat the tort claims were timely the statute book. 109 a county ambulance and injured. They because the court added the time the The change is simple and reflects filed suit within the two year statute of city took to deny the claim ( 40 days) to 1 similar language in the Federal Tort limitations but failed to file a notice of the date the claim was denied. JG This Claims Acc. The amendment reads: claim with the county. Their claims maneuver was disapproved by the were dismissed for lack of jurisdiction. Kansas Supreme Court in Cummings, ''Any action brought pursuant to After dismissal, plaintiffs provided a as described above. In any event , chis the Kansas To rt Claims Act shall be reasoning prevented the Court of

102. Id. at 863-64. The Kansas Supreme Court denied review of J.P. 110. H.B. 2553, § 1 (d) (2004). Asset on December 19, 2003. 111. 270 Kan. 78, 11 P.3d 1131 (2000). 103. Id. at 863. 112. Id. at 78-79. 104. H.B. 2553, H.J. 968 (2004). 113. Id. at 80. 105. H.B. 2553 (2004), Supplemental Note. 1 14. Id. at 81-82. 106. Id. 115. 31 Kan. App. 2d 650, 70 P.3d 711 (2003). 107. H.B. 2553, H.J. 1065, S.J. 1363 (2004). 116. Id. ar 655. 108. H.B. 2553, H.J. 1608 (2004). 109. H.B. 2553, § 3 (2004).

32 - MARCH2005 THE JOURNAL OF THEKANSA S BAR ASSOCIATION LEGAL ARTICLE: USEIT OR LOSE IT - GIVING NOTICE OF TORT CLAIMS ... Appeals in J.P.Asset from considering the statute of limitations has not About the Author the question of relation back. 117 expired. If it has, plaintiffis out of luck. Teresa L. Sittenauer is an attorney In his dissent, Judge Knudson The courts will not allow a stay in pro­ with Fisher, Pa tterson, Sayler and Smith, pointed out that plaintiffs' theory of ceedings so chat plaintiffmay go back Top eka, where she spe­ saving their claim was based on the and filean untimely notice of claim. 123 cializes in civil rights application of K.S.A. 60-215(c), which Neither does an estoppel argument litigation, government allows an amendment to a pleading to help plaintiffcure a stumble over the liability, and appellate relate back to the original date of the statute. In Shaffer v. City of Top eka, 124 practice. She is a pleading. He reasoned that the lan­ plaintiffs argued that the city was farmer research attor­ guage of K.S.A. 12-105b(d), a special estopped from raising a statute of limi­ ney fo r the Kansas statute, controls over the language of tations defense because the city led Supreme Court and K.S.A. 60-215(c), a general statute, them to believe that their superfluous Hon.j . Pa tricle Brazil, "and a party intending to file a tort second notice of claim further extended retired ChiefJudge of claim against a governmental entity is the statute of limitations. The Court of the Ka nsas Court of Appeals. She is presi­ not allowed to do an end run around Appeals disagreed, concluding that the dent of the Ka nsas Wo men Attorneys its strictures under a theory of relation city hid no material facts from plain­ Association, treasurer of the Top eka Bar back of claims." 118 tiffs; plaintiffs should have known that Association, and president-elect of the Judge Knudson's analysis, though it their first notice was proper and was Insurance Law Section of the Kansas Bar appears in the dissent, makes sense and the only notice to be filedunder K.S.A. Association. is certainly worthy of reference until 12-105b(d). 125 the issue is revisited by the appellate This brings up an important point courts in the future. forcounsel to either plaintiffs or munic­ ipalities. Defense counsel has no duty co V. Failure to file a proper notice instruct plaintiff's counsel on the exis­ tence or application of K.S.A. l 2- of claim deprives the district 12 court of subject matter l 05b(d) to a cause of action. 6 jurisdiction. Attorneys are held responsible for knowledge of the statute and cannot Filing a proper notice of claim under raise estoppel or otherwise complain K.S.A. 12-1056 is a condition precedent about opposing counsel's failure to sup­ to commencing an action against a ply a friendly (or not-so-friendly) 119 municipalicy. It is a condition that reminder about the need fora notice, or must be satisfied and pied before plain­ the adequacy or timing of a notice. 127 tiffcan state a claim against a municipal­ 120 icy. If plaintiff does not meet the VI. Conclusion requirements of K.S.A. 12-1056, the court is without jurisdiction over state The only real "trap" involved in suits What tort claims advanced against the munici­ against municipalities lies in disregard of pality. 121 If plaintiff has met the statu­ K.S.A. 12-105b(d). Though a few of the Is A tory requirements but fails to plead fine details remain slightly out of focus, satisfaction of the condition precedent, the essence of the statute is fairly clear Business at least one court has allowed plaintiff and easily understood. The Legislature simply to amend her pecicion.122 has done its part to simplify the statute Worth? When plaintiff fails to file a proper of limitations issue. The best way to notice, the tort claim or claims against avoid trouble is simply to be aware of If you need an Expert Witness the municipality must be dismissed. the statute - and, more importantly, or CertifiedAppraiser of a Following dismissal, plaintiffmay try consult it - when dealing with a tort business or its assets, or ... again by first filing a notice, provided claim against a municipality. If you need an Experienced ■ Brokerto help sell a business ... Call the one with Knowledge & Experience 117. id. at 657. ants do not cite and the court did not find a 118. id. at 656-57. Kansas case which dismissed a KTCA claim John R. Harris,CB C, ASA 119. Orr v. Heiman, 270 Kan. 109, J 11, 12 solely because plaintiff fa iled to plead P.3d387 (2000). compliance with the statute."). Marketing & 120. id. 123. Quezada v. Payne, 2004 WL 48680 Consultant 121. id. See also Titcking v. Board of Jefferson (Kan. App. 2004). Services,Inc County Commissioners, 14 Kan. App. 2d 442, 124. 30 Kan. App. 2d 1232, 57 P.3d 35 Riverbend 796 P.2d 1055 (1990), rev. denied 246 Kan. (2002). OfficePark 770 (1990); and Dill v. Barnett Fu neral Home, 125. Id. at 1239. 2014 W. 13thStreet inc. , 2004 WL 292124, *l (Kan. App. 2004), 126. Rockers v. Ka nsas Tu rnpike Authority, Wichita,KS 67203 rev. denied_ Kan. _ (2004). 268 Kan. 110, 118-19, 991 P.2d 889 (1999). (316) 681-1527 122. Casas v. City of Overland Park, 200 l 127. id. WL 584426, *13 (D. Kan. 2001) ("Defend- www.marketingconsult.com

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Supreme Court She was hired to serve as business manager and attorney for a Topeka musician and was later retained to assist his family with a claim against a roofing repair company. She IN REANONYMO US * began work on the roof case but failed to follow through, ORIGINAAttorneyL PROCEEDING DiscIN ipline DISCIPLINE and the contractor filed a lien on the client's home. CENSURE Respondent's behavior became increasingly irrational, and NO. 92, 073- DECEMBER3, 2004 the musician terminated the business relationship. Stover FACTS: Respondent, an attorney from Kansas City, repre­ then began to terrorize her former clients through numerous sented a client in a workers' compensation matter. Prior to a threatening actions and unauthorized invasions of privacy. preliminary hearing, respondent and his client attempted to The former clients filed a civil suit in Wisconsin, and deceive opposing counsel into thinking they possessed an respondent was ordered to allow access to her computer. audio recording of an opposing witness making statements When she refused, she was jailed forcontempt of court. regarding the client's employment conditions. Counsel sent A hearing panel found numerous rules violations arising his witness away without testifying. In the client's deposition, out of this misconduct, including KRPCs 1. 1 (competence), respondent instructed him not co answer any questions 1.7 and 1.8 (conflicts of interest), 3.4 (fairness to opposing regarding the existence of the audio cape. After an order by party), 5.5 (unauthorized practice of law), 8.4 (misconduct) , the administrative law judge, respondent acknowledged there and SCR 21 1 for failingto file an answer to the formal com­ were no such recordings, and that his client had brought a plaint. Respondent failed to appear before the panel, which blank audio tape to the preliminary hearing. found 10 aggravating factors and no mitigating factors and The panel foundvio lations of KRPCs 3.4(d) (fairness to recommended disbarment. opposing party) and 8.4(d) (misconduct prejudicial to the HELD: Respondent failed to file exceptions to the panel's administration of justice) and recommended published cen­ final hearing report and failed to appear before the Supreme sure. Respondent did not file exceptions to the final hearing Court for the scheduled oral argument. The Court affirmed report. and adopted the panel's findings of fact and conclusions of HELD: The Court noted chat respondent failed to law and ordered respondent disbarred. acknowledge to the panel that he had intended to deceive opposing counsel and made similar responses to the Court. The Court adopted the panel's factual findings and conclu­ sions of rules violations, but a majority disagreed with the sanction requested by the disciplinary administrator, the CHILD SUPPORT AND IMPUTEDIN COME respondent, and the panel and ordered censure in a nonpub­ TO CUSTODIALCivil PA RENT lished opinion. INRE MARRIAGE OF PA UL * - Pursuant to a request by the Supreme Court, the iden­ BOURB ON DISTRICTCO UR T -JUDGMENTOF tity of the respondent will not be published here. THE COURT OF APPEALSAF FIRMING THE DISTRICTCO URT IS AFFIRMED AND JUDGMENT INRE KAT HY A. STOVER OF THE DISTRICTCO URT ISAF FIRMED ORIGINA L PROCEEDINGIN DISCIPLINE NO. 91,129 -JANUARY21, 2005 DISBARMENT OPINION: While the guidelines do not expressly provide NO. 93, 129 -JANUARY21, 2005 forthe imputation of reasonable child care costs, such imputa­ FACTS: Respondent, formerly of Topeka, was licensed in tion may be considered where circumstances warrant. The Kansas and Missouri. When she moved to Wisconsin, she Kansas Child Support Guidelines do not specifically cover placed her Kansas license on inactive status but was adminis­ every possible situation, and a reasonable resolution of issues tratively suspended after failing to pay the inactive registra­ arising from a situation not covered, such as this case, is appro­ tion fee. priate. Court adopted the Court of Appeals opinion in In re Ma rriage of Pa ul, 32 Kan. App. 2d 1023, 93 P.3d 734 (2004).

36 - MARCH2005

THEJO URNAL OF THEKAN SASBAR ASSOCIATION CONTRACTS AND DAMA GES 513; K.S.A. 12-105b(d), 22-2520 et seq., -2520(a) and (6), STATE EXREL . STOVALL V.RELIA NCE INS. CO. -2521, -2521(6), -2522, -2523, 60-212(6)(6) , -512(2), BUTLER DISTRICTCO URT -AFFIRMED IN PA RT, -513(a)(4), -514 REVERSED INPA RT,AN D REMANDED ORIGINA L OPINION, FILED JUNE18 , 2004, WORKERS' COMPENSATION AND REIMB URSEMENT IS WITHDRAWN SCHMID TLIENELECT RIC IN C., ET AL. V. NO. 87,393 - MODIFIED OPINIONFILED GREATHOUSE JA NUARY 21, 2005 AND FACTS: State sued entities involved in defective construction NORTHMINSTER PRESB YTERIAN CHURCH, ETAL. V. of underground thermal piping system that failed at El Dorado GREATHOUSE Correctional Facility. District court fixed the amount of state's SHA WNEE DIS TRICTCO URT potential recovery against George M. Myers Inc. (GMM) and REVERSEDAND REMANDED WITHINST RUCTIONS its surety (Reliance) and dismissed the state's third-party benefi­ NO. 91,654 -JA NUARY 21, 2005 ciary claims against other entities. Issues on appeal are whether FACTS: Anderson was employed by Northminster district court erred in fixing the amount of state's potential Presbyterian Church, which was insured by Brotherhood recovery of damages and in dismissing state's third-party bene­ Mutual. Bryan Kent was employed by Schmidtlien Electric, ficiary claims . State's interlocurory appeal was transferred to which was insured by Trinity Universal. Both Anderson and Supreme Court. Published opinion filed, 278 Kan. 3 Qune 18, Kent were injured, and their employers' insurance carriers 2004), affirmed in part, reversed in part, and remanded. State paid them temporary disability benefits and medical filed motion to clarifyor modifyt hat opinion. expenses. Brotherhood sought reimbursement of approxi­ ISSUES: (1) Modification, (2) measure of damages, and mately $28,000 from the Director of the Kansas Division of (3) third-party beneficiary claims Workers' Compensation (Greenhouse/Director), but the HELD: Motion to clarify or modify is granted. Opinion Director denied reimbursement because Anderson had origi­ filed June 18, 2004, is withdrawn. Modified opinion is nally been entitled to benefits, and her later failure to file entered. timely claims and applications did not eliminate her right to District court erred in limiting state's potential recovery of benefits received earlier. Trinity Universal sought reimburse­ direct damages to the original cost of the earthen trench sys­ ment of approximately $105,000 from the Director, but was tem, plus additional amount for inflation through 1995. denied on two bases: (1) no full hearing had occurred in Correct measure of damages is cost to build concrete trench Kent's case and (2) similar to the rationale in Anderson, system, not to exceed cost to build earthen trench system as claimant Kent would not lose his original entitlement merely of the 1995 discovery date. State's claim of finance, design, through a subsequent untimely service of written claim or and administrative costs should be considered as part of abandonment. The employers and their insurance compa­ direct costs to build concrete trench system. State should be nies, in both matters, filed petitions for writs of mandamus, allowed to prove additional damages claims that are separate asking the trial court to compel reimbursement. Regarding and apart from direct costs to build concrete trench system. Anderson, the trial court found (1) Anderson's claim was Grant of summary judgment to GMM and Reliance is denied because she failed to timely file a written claim; (2) reversed. the Director declined to certify said amounts because No error in dismissing state's third-party beneficiary Anderson's claim had been denied because of the untimely claims . Under language of subcontracts in question, state was written claim; and (3) there was not a finding that Anderson not an intended beneficiary. was not entitled to the amounts paid. Regarding Kent, the STATUTES: KS.A. 20-3002(c), -3018(c), 60-3301 et seq. trial court found the Administrative Law Judge (ALJ) denied Kent's claim because Kent had abandoned it, had failed to PERIOD OF LIMI TATIONS prove his injuries arose out of or in the course of his employ­ MCCORMICK V.ST ATE ment, and he filed an untimely written claim. The trial court DOUGLAS DISTRIC T CO URT- REVERSEDAN D found it had jurisdiction over the mandamus action. The REMANDED AND CO URT OF APPEALS- REVERSED trial court held that a employer would be entitled to reim­ NO. 90, 853 -JA NUARY 21, 2005 bursement if it was determined at a full hearing that the FACTS: McCormick sued city of Lawrence and police injured worker was not entitled to receive benefits and there officers for violating state statutes concerning strip and body was no determination that the employers and their insurance cavity searches. District court dismissed lawsuit as not filed companies paid more in benefits than the claimants were within two-year limitation period for general tort action, entitled to. The trial court denied the claims for reimburse­ rather than three-year limitation period for action based ment. upon liability created by statute. Court of Appeals affi rmed. ISSUES: (1) Did the trial court err in holding there was Supreme Court granted McCormick's petition for review. not a full hearing on employee Bryan Kent's claim? (2) Did ISSUE: Statue of limitations the trial court err in holding there was no administrative HELD: Action brought for damages under K.S.A. 22- determination that plaintiff's paid more in benefits than 2523, which incorporates K.S.A. 22-2521 and K.S.A. 22- those to which claimants were entitled? (3) Did the trial 2522, is subject to three-year limitation period in K.S.A. 60- court err in refusing to issue the writs of mandamus? 512(2). These state statutes create substantive rights not rec­ HELD: Court reversed the decision of the trial court and ognized at common law and are distinguished from a Fourth remanded for issuance of writs of mandamus ordering the Amendment claim brought pursuant to 42 U.S.C. § 1983. Director to carry out her statutory duty to determine the STATUTES: 42 U.S.C. § 1983; K.S.A. 2003 Supp. 60- amount of compensation paid by the insurance carriers to

THE JOURNAL OF THEKANSAS BAR ASSOCIATION MARCH 2005 - 37 claimants and to certify to the Commissioner of Insurance reimbursement statute. (3) The Court held the Workers' the amount so determined for their reimbursemen t. (1) The Compensation Act (Act) is substantial, complete, and exclu­ Court concluded that "full hearing" means an exploration of sive. However, the Act does not provide for the right to the issues resulting in the ultimate decision, e.g., whether the appeal the Director's determination on reimbursement. claimant is entitled to workers' compensation benefits. It Court held in the absence of a statutory right of appeal, relief includes a situation where there has been an evidentiary from illegal, arbitrary, and unreasonable acts of the Director hearing before the ALJ , as well as where there has been pro­ can be obtained using an extraordinary remedy like man­ cedural default, e.g., abandonment. Court held that in Kent's damus, quo warranto, or injunction. The Court held that circumstances, there was nothing to be gained by requiring since the ALJs in both matters found that compensation the Director's version of a "full hearing." (2) The Court held should be totally disallowed, the Director's statutory duty to that by the Director's own admission, with a showing that certify these claims for reimbursement is clear and the trial Anderson's injuries did not arise out of and in the course of court should have issued the writs of mandamus. employment, Anderson failed to meet her burden to prove STATUTES: KS.A. 20-3018(c) ; KS.A. 25-2201, -2205; her entitlement to benefits. The Court found Kent aban­ K.S.A. 44-50l(a), -5126, -520a, -525, -534a(b), -551, doned his claim and failed to prove his injuries arose out of -555c(a), -566a, -5,120(d)(l0), (18), (1 9), (f), (g)(l); KS.A. and in the course of employment. The Court held that both 1989 Supp. 44-534a; KS.A. 1992 Supp. 44-534a(b); KS.A. Anderson and Kent either abandoned their claims or other­ 1995 Supp. 44-556(a); KS.A. 2003 Supp. 44-508(g); KS.A. wise conceded they could not prove an essential element of 60-206(e) , -801, -802(a); KS.A. 72-5423 their claims. Consequently, the Director erred under the Kansas Bar Association is making available to ALL members Association Hea lth Programs

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38 - MARCH 2005 THE JOURNAL OF THE KANSAS BAR ASSOCIATION Court of Appeals

been filed, no reasonable probability the outcome of case Civil would have been different. STATUTES: K.S.A. 2003 Supp. 21-4720(6)(4), 22-3210 sections (a) (3) and (d); K.S.A. 60-1507, -1507(d)

HABEAS CORPUS COLLINS V.ST ATE FACTSLYON: ColliDIS ns convTRICTictedCO onU guRTilty-A plFeFIRMEDa to manu facture IMPROVEMENTS, ASSESSMENTS, AND CITY AND of methamphNO.etamin 92,675e, K.-JS.ANUA. 65ARY-4159( 14,a) 2005, a seve rity level CO UNTYAG REEMENTS one offe nse. In 2003, district court denied 1507 claim that BLOOM V.- CITY OF OAKLEY Collins should have been sentenced under K.S. A. 65- FACTSLOG: VariANous DIS laTndoRICTwner COs petitiUR Toned - AF FIRMEDfor impro vement 4161 (a), a severity level three offense, based on State v. of Royal AveNO.nue with 92,305 lando JANwnerUsARY paying 28, 85 2005 perc ent and the McAdam, 277 Kan. 135 (2004). In 2004, district court city paying the rest. Bloom did not sign the petition. The den ied Collins' motion for reconsideration, based on portion of Royal Avenue that was subject to the improve­ Supreme Court's partial reversal in McAdam. Collins ment was entirely within the corporate limits of the city. appealed. Bloom's property ran alongside a lengthy portion of Royal ISSUE: Sentence reduction Av enue, but his property lay entirely outside the city limits. HELD: As in Wilson v. State, 31 Kan . App. 2d 728 The city limits terminated at the side of Royal Avenue adja­ (2003) , McAda m does not apply retroactively to those cases cent to Bloom's property. The city passed a resolution to on collateral review because to do so would give movant the make the improvements to the property included in the peti­ double benefit of a favorable plea agreement, with a signifi­ tion, which included real estate located both within and out­ cant downward durational departure, and then the benefito f side the city limits. The city assessed Bloom $36,287.80 an issue he failed to raise at trial or on direct appeal. against his property forth e improvements. The district court STAT UTES: K.S.A. 2003 Supp. 60-1507; K.S.A. 2001 held that the city can form improvement districts that Supp. 65-4152(a) (2) and (3) , -7006(a); K.S.A. 21-3302, include land inside and outside the city limits, but pursuant 22-3608(c), 60-1507, 65-4152(a) (3), -4159(a), -4160, to K.S.A. 12-693(6), the city must enter into an agreement -416 l (a), -7006(a); K.S.A. 1986 Supp. 21-3506(a) with the board of county commissioners in order to initiate such improvements and assessments. The district court held the city failed to enter an agreement with the county and lacked authority to levy the assessment. HABEASCORPUS ISSUES: Whether the city has the power to create an MCGOLDRICK- V.ST ATE improvement district that includes property both inside and FASEDGCTS: MWICKcGoldDIS rickTRI conCTvic teCOd URpurTsu -anAFt tFIRMEDo guilty pl ea. outside the city limits. Consecutive NO.sente 90,834nces imp osedJA NU, conARYtrary 21, t o2005 sente nce recom­ HELD: Court affirmed. Court held the district court did mendation in plea agreement. Full evidentiary hearing held not err in finding Bloom's property was not properly included on McGoldrick's motion to withdraw plea. Denial of that within the improvement district created by the city pursuant motion was never added to McGoldrick's unsuccessfulc rimi­ to K.S.A. 12-693 because the city failed to enter into an nal appeal. McGoldrick later filed 1507 motion alleging interlocal agreement with the county prior to assessing prop­ ineffective assistance of counsel and coerced plea. District erty located outside city boundaries for the cost of improving court appointed counsel and denied motion after hearing a boundary line road located entirely within the city. arguments without holding an evidentiary hearing. On STATUTES: K.S.A. 12-693, -6a01 et seq., -6a02, -6a04; appeal, McGoldrick claims plea was not knowing and volun­ KS.A. 60-907(a) tary. He also claims suffi cient facts were alleged to necessitate a hearing as to whether he was coerced into accepting plea and claims appellate counsel was ineffective in failing to raise withdrawal of plea issues in the criminal appeal. INFANTSAN D INDIANS- ISSUES: (1) Plea agreement, (2) evidentiary hearing, and IN RES.M.H. (3) ineffective assistance of counsel POTFACTSTAW: ATOMIEPolice remDISov edT RICTchildreCO n frUoRTm hoREVEme inRSED whic h HELD: No abuse of discretion in trial court's denial of mother andNO. stepfa 91,5th20er -JhaANUd hisARYtory 14of , i2005ntoxi cation and McGoldrick's 1507 motion. Under facts, state did not violate domestic violence. State filed petition alleging the children plea agreement at sentencing or in hearing on McGoldrick's were in need of care (CINC). Cherokee Nation filed Notice motion to withdraw plea. of Intervention, indicating the children were Cherokee District court's decision to not have McGoldrick appear in Indian children. District court found clear and convincing court or hold an evidentiary hearing on the 1507 motion is evidence supported magistrate's CINC finding and order supported by the record. that children remain in Social and Rehabilitation Services Even if appeal from denial of motion to withdraw plea had (SRS) custody. No specific finding made that children were

THE JOURNA L OF THE KANSASBAR ASSOCIATION MARCH 2005 - 39 Indian children or that Indian Child Welfare Act (ICWA) exception to "your product" exclusion in a commercial gen­ applied. After the mother filed her appeal, children were eral liability policy will be broadly construed, especially returned and SRS discontinued supervision. where insured is contractor whose broad form commercial ISSUES: (1) Appellate jurisdiction and (2) Indian Child general liability coverage was apparently intended to be Welfare Act expanded by this exception. HELD: Appeal retained. Case is not moot because SRS District court's judgment for entire settlement is reversed. seeks reimbursement for fostercare and because presumption Where insurer wrongfully fails to indemnify its insured, of parental unfitness resulting fromtwo or more CINC adju­ insurer has not forfeited its rights to contend that some or all dications could have dramatic affect on mother and her abil­ of the amount paid by the insured to settle the claim was not ity to defendag ainst claim of unfitness. within policy's coverage. Remanded for factual determina­ Case involves interfacebetween the Kansas Code forCare tion of amount resulting fromthe occurrence. of Children and ICWA. Because statutory language makes Award of prejudgment interest is vacated. When amount clear that CINC code does not apply to Indian children and of damages is not finally determined until jury makes requi­ that ICWA does, once court was faced with evidence that site factual determination, prejudgment interest cannot be children were Indian children, court was bound to apply awarded. ICWA in the proceedings. Mother in this case was ent itled District court did not err in finding Builders was entitled to higher evidentiary standards in ICWA. District court's to attorney fees under K.S.A. 40-908. Statute applies in cases failure to provide that protection was not harmless erro r. in which judgment is rendered on a policy that insures CINC findingis reversed. against loss by fire, tornado, lightning, or hail. Typeof policy STATUTES: 25 U.S.C. §§ 1901 1901(4), controls application without regard to actual type of loss 1903(l)(i), 1903(4), 1911 sections (a), (b), and (c), 1912(e), incurred. Builders' cross appeal fromdistrict court's denial of 1914; K.S.A. 2003 Supp. 38-1503(a); K.S.A.et seq. ,38-1501 attorney feesunder K.S.A. 40-256 is moot. -1502, -1532 -1555, -1556, -1563, -1585(a) (3) STATUTES: K.S.A. 16-201, 40-256, -908 et seq., et seq.INS, URA NCE MORTGA GE FORECLOSUREAND LEE BUILDERS, INC. V.FA RMBU REAUMUT. INS. CO. JUNIOR LIENHOLDERS SEDGWICKDIS TRICTCO URT -AFFIRMED IN ALLIANCE MORTGAGE COMPANY V.PAS T/NE, ET AL. PA RT,REVE RSEDAN D VACATEDIN PA RT, GEARYDIS TRICTCO URT- REVERSEDAND AND REMANDED REMANDED WITHDI RECTIONS NO. 90,944- JA NUARY 28, 2005 NO. 91,929-JANUARY 14, 2005 FACTS: Lee Builders, Inc. (Builders), general contractor FACTS: Alliancesued to foreclose its first mortgage on prop­ for construction of custom home, was insured under com­ erty in Junction City. Alliance requested a money judgment mercial general liability policy issued by Farm Bureau. Home against Leighty, who had assumed and agreed to pay the debt owner sued Builders over damage caused by water seepage. owed to Alliance. Beneficial Mortgage, the second mortgagee, Builders notified Farm Bureau of the claim, but Farm was named as a party defendant and claimed an interest in the Bureau denied coverage. Builders then joined with subcon­ property. Beneficial asked for proper relief, but did not cross­ tractors to negotiate settlement with home owner. Builders petition against the owner to foreclose its mortgage and failed filed suit against Farm Bureau seeking recovery of settlement to seek relief on its note and to set out the amount that was due plus interest and attorney fees. Trial court granted judgment under the note. The trial court foreclosedAlliance 's mortgage to Builders and awarded attorney fees under K.S.A. 40-908, and granted judgment for approximately $30,000 and deter­ but denied attorney fees under K.S.A. 40-256. Builders and mined that Beneficial had a valid lien on the property second Farm Bureau both appealed. in line to Alliance. The court ordered a sheriff's sale and ISSUES: (l)" Occurrence" in commercial general liability granted a right of redemption within three months after the policy, (2) real property exception to "your product" exclu­ sheriff's sale. At a properly noticed sheriff's sale, 166 bids were sion, (3) liability for entire settlement, (4) prejudgment received. The Coxes were the highest bidders and paid $85,001 interest, and (5) attorney fees for the property. $43,290.73 was paid to Alliance, leaving HELD: Issue of first impression in Kansas. District cour t excess proceeds of $41,710.27. Beneficial claimed it had no did not err in concluding indemnity provisions of policy notice of the sale, otherwise it would have bid $117,500 for the were triggered. Property damage to surrounding structural property, and moved to set aside the sale or allow a substitute components caused by moisture seepage resulting fr om bid. The trial court denied the motion finding proper notice faulty work constitutes an "occurrence" under general con­ was given, Beneficial had participated in the foreclosure pro­ tractor's commercial general liability policy because (1) pol­ ceedings, that Beneficial could have secured its interest by a icy definition of "accident" includes the continuous or money judgment, that the property had been sold for fair mar­ repeated exposure to substantially the same general harmful ket value in a legitimate transaction, and the sheriff's sale was conditions; (2) Supreme Court has indicated that "occur­ conducted according to law in all respects. On a motion for rence" is avoided only when act results in intentional injury; rehearing, the trial court found Beneficial, by not receiving (3) to construe "occurrence" more narrowly would render notice of the sheriff's sale, had been denied the right to bid at other policy provisions and exclusions meaningless; and ( 4) the sale and denied a protected property right. Court granted to extent policy definition or precise phrase is ambiguous, Beneficial 10 days to redeem the property, and Beneficial paid policy is construed against insurer. $117,500 into court forrede mption. Trial court confirmed the District court did not err in finding "your product" exclu­ redemption and repaid the Coxes the sale price and all costs, sion did not bar coverage of Builders' claim. "Real property" interest, and expenses. The Coxes appeal.

40 - MARCH 2005 THEJOURNAL OF THE KANSAS BAR ASSOCIATION ISSUES: Does Kansas law allow a trial court to refuse con­ was entitled to receive notice of impending action as a partici­ firmation of a sheriff's sale that is for an adequate purchase pating litigant, not because of its status as a junior lienholder. price forreasons not supported by law and forrea sons not in Johnson stated that Beneficial was a creditor, and its claim conformitywith equity? had become a lien prior to the expiration of the redemption HELD: Court reversed. Court held because the sale to the period and a plain reading of K.S.A. 60-24 14(c) gives Coxes was for an adequate price, the sale should have been Beneficial standing to redeem. Johnson stated the court fash­ confirmed if it was supported by the law and was in con­ ioned an equitable remedy extending the redemption period formity with equity. Court stated that Beneficial received and the only detriment suffe red by the Coxes was a missed notice of the foreclosure action. Beneficial was properly opportunity to get a tremendous bargain. served with a summons in Al liance's foreclosure action and filed an answer claiming a lien on the property. Court held the evidence established that Beneficial was given the oppor­ tunity to assert its rights in the property before judgment UNDERINSURED MOTORIS T BENEFITS was entered in the foreclosur e action and there was no due BARLETTV. CNA-AN D process violation. Court found proper notice was given for TRA NSPORTATIONINSU RANCE the sheriff's sale. Court also held the trial court abused its SHA WNEE DISTRICT- CO URT REVERSEDAN D discretion by extending the redemption period forBene ficial. FACTS: Barlett was theREMANDED sole proprieto r of a business, oper­ Court stated that Beneficial failed to make a good faithe ffort ating under theNO. name 91,634 of Ma JAjicNU Pools.ARY On 28, the 2005 way to a service to redeem before the redemption period expired, and call for a Majic Pools customer, Barlett's motorcycle was Beneficial was in the same category as the Coxes and any struck by an automobile driven by Singh, and Barlett sus­ other private citizen, and there was no equitable reason to tained substantial injuries. Singh had a bodily injury liability allow Beneficial to redeem the property out of time. Court insurance policy with per person limits of $25,000. Barlett's found the Coxes did not acquiesce in the judgment because motorcycle was insured by Progressive Insurance providing a they were forced to let Beneficial buy back the property after $25,000 limit. Barlett owned a 1992 Chrysler insured with Beneficialwas allowed to redeem the real estate. American Family for $100,000 Uninsured Motorist (UIM) STATUTES: K.S.A. 60-24 10(a), -24 14(6), (c), and (m), coverage. Barlett had two other vehicles covered under a busi­ -24 15(a), (b); K.S.A. 2003 Supp. 60-205(a), (b) ness auto coverage policy with UIM limits of $300,000 pro­ DISSENT: Judge Johnson dissented. Johnson stated that vided by Transportation Insurance. Barlett reported the acci­ an adequate sale price does not mandate confirmation of a dent to Transportation. Barlett sued Singh and notified mortgage foreclosure sheriff's sale. As far as notice, Beneficial Transportation of its lawsuit and later notified Transportation

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THE JOURNAL OF THEKANSAS BAR ASSOCIATION of the possibility of UIM claim on the business policy. Transportation denied coverage and declined to participate in Criminal the action between Barlett and Singh. After secclement between the parties, the court entered a journal entry finding STATE V.JOHNSON Singh was the sole cause of the accident, and Barlett had sus­ GEARYDIS TRICT COURT tained damages of approximately $950,000. Barlett sued REVERSED AND REMANDED CNA to collect the full $300,000 of UIM coverage on the NO. 91,589 - OCTOBER 8, 2004 business auto policy, and Tr ansportation was added lacer as a PUBLISHED OPINIONFIL ED JA NUARY 24, 2005 defendant, and CNA was dismissed from the lawsuit. The FACTS: Jury convicted Johnson of possession of cocaine district court granted summary judgment to Barlett against with intent to sell, no drug tax stamp, possession of drug Transportation for$3 00,000. Transportation appeals. paraphernalia, and obstructing official duty. On appeal, he ISSUES: (1) Does Barlett have to prove the reasonableness claimed trial court erred in admitting previous crime evi­ of the underlying settlement with Singh in order to prevail dence on rebuttal and in not giving unanimity jury instruc­ on the UIM claim? (2) Was Transportation's intervention in tion. Johnson also claimed insufficient evidence supported the lawsuit unnecessary for it to enforce the terms of the the conviction. insurance policy? (3) Did Barlett breach the notice provi­ ISSUES: (1) Prior crime evidence, (2) unanimity jury sions of the policy? (4) Right to reject UIM coverage. (5) instruction, and (3) sufficiency of evidence Could Transportation apply the other insurance provision in HELD: Trial court erred in allowing state to call rebuttal the policy to reduce the amount of its obligation? (6) Did witness to testify about prior episode where Johnson ran the trial court properly prorate the UIM obligations between from police and was apprehended and found with cocaine. the insurance companies? Johnson admitted to having run from police in past, and HELD: Court reversed and remanded. (1 ) Court found admitted he ran because of drugs. No need forstate to intro­ Transportation had more than adequate notice of the pro­ duce circumstances of chat prior incident. Under facts, posed settlement with Singh. Court stated that the UIM admission of chis evidence was unduly prejudicial and denied insurer chat fails to intervene in the negligence action is Johnson a fairtrial. unequivocally bound by a court-approved settlement judg­ Case involved both factually and legally separate incidents. ment's determination of liability and damages. The district Under facesthere was possibly jury confusion. Error in fail­ court's ruling chat Transportation was bound by the settle­ ing to provide unanimity instruction was not harmless. ment judgment is affirmed. (2) Court held chat by electing Sufficient evidence supported Johnson's conviction of pos­ to forego participation in the third-party liability action, session of cocaine with intent to sell, but convictions Tr ansportation did not relinquish its right to enforce the reversed and remanded due co evidentiary and instructional contract it made with Barlett. (3) Court stated Barlett gave error. notice of the claim and Tr ansportation's argument was STATUTES: K.S.A. 2003 Supp. 22- 3414(3); K.S.A. unsupported by law, contract language, and common sense. 21-3808(a), 60-455, 65-4152(a) (3), -4162, 79-5204(a), Upon being notified of an accident, it is incumbent on the -5208 insurance company co investigate the applicability of its insurance policy provisions. (4) Court found the insurance STATE V.KNI GHT policy stated the UIM coverage was $300,000, and SEDGWICKDIST RICTCO URT - REVERSED Transportation was bound by chat declaration. (5) Court NO. 90,904 - MOTION TO PUBLISH stated chat Barlett chose to insure its various vehicles through OPINION PREVIOUSLYFILED ON different insurance companies. Court held chat having opted SEP TEMBER 17,2004 for separate insurance contracts with separate companies, PUBLISHED OPINIONFIL ED JA NUARY 10, 2005 Barlett should be required to enforce his contract rights indi­ FACTS: A Wichita grocery store security guard observed a vidually against each carrier. However, Transportation should man purchasing two boxes of cold pills, a six-pack of boccled have been permitted to apply its other insurance provision to water, and cable sale. The security guard called the police sus­ reduce the amount of its payment co its pro rata share of the pecting the items were used in manufacturing methampheta­ UIM claim. (6) Court held chat Transportation was responsi­ mine. Officer Wannow witnessed Eric Booker get into his ble for three-fourths pro rata share of the UIM benefits. car and then pick up David and Patricia Knight in the gro­ Court stated chat summary judgment was inappropriate on cery store parking lot. Wannow did not observe the Knights the issue of prorating Tr ansportation's UIM coverage, and carrying anything. The Brooker vehicle drove across the the court reversed fora determination of whether American parking lot and then entered the public street without the Family's UIM coverage was applicable to chis accident and use of any turn signal. Wannow stopped the vehicle forthe for a recalculation of Transportation's share of the loss. purported traffic violation of exiting a private drive onto a STATUTES: KS.A. 40-284(6), (c), (d), (f), -287, -3107 public street without signaling the turn. The stop lead co the CONCURRENCE AND DISSENT: The dissent con­ discovery of various ingredients and equipment used in the curred with the majority's decision chat Barlecc's award manufacture of mechamphecamine. The district court denied should be modifiedto $275,000, and chat Transportation is Knight's motion to suppress finding the stop was valid, there bound by the settlement agreement between Barlett and was probable cause to arrest, the search of the vehicle was Singh. The dissent departed from the majority's decision lawfully incident to arrest, and Knight's post-Miranda state­ mandating proration between the policies of Transportation ments were admissible. Knight was convicted of illegal pos­ and American Family. session of pseudoephedrine.

42 - MARCH2005 THE JOURNAL OF THE KANSASBAR ASSOCIATION ISSUES: Was the traffic stop valid? Was there reasonable to appeal out of time. The district court held that McAdam suspicion to stop the vehicle? did not apply retroactively, and the defendant was not HELD: Court reversed the conviction. Court held the allowed to file an appeal based on his plea wherein he Wichita City Code does not regulate turns from a private received a downward durational departure. driveway onto a public street. Court stated the movement of ISSUES: (1) Did the court have jurisdiction to consider Brooker's vehicle from the parking lot onto the adjoining the appeal? (2) Does McAdam apply retroactively? (3) Should street did not warrant a traffic stop. Absent the traffic stop, Singleton be allowed to filean appeal out of time? the court held Wannow did not have reasonable suspicion to HELD: (1) Court held it would continue the long-stand­ stop Brooker's vehicle. Court stated that while it is clear that ing policy of liberal construction of pro se motions and was the purchase of items used in the production of metham­ obligated to treat the motion to correct an illegal sentence as phetamine can provide reasonable suspicion to justifya stop, a K.S.A. 60-1507 motion rather than dismiss for lack of the mere purchase of two boxes of cold tablets, a six-pack of jurisdiction. (2) Court held McAdam will not be applied to bottled water, and ordinary table salt is not the basis for rea­ cases that were final prior to the date of the McAdam deci­ sonable suspicion that a crime has been, is being, or is about sion. Otherwise, the court stated it would give the movant to be committed. the double benefitof a favorable plea agreement, with a sig­ STATUTES: No statutes cited nificant downward durational departure, and then the bene­ fit of a reduced sentence based on an issue the movant failed to raise at the trial court or on direct appeal. (3) Court stated the transcripts from movant's sentencing do not indicate he STATE V.SINGLETON was informed of his right to appeal by the district court. RICE DIS- TRICT CO URT Court stated the district court did not make a fi nding FACTS: InREVE AugustRSED 2002,AND Sin REMANDgleton pleadED guilty to one whether Singleton was advised of his right to appeal. Court count of manufactuNO. 92,ring638 methampheta JAN UARY 21,mine, 2005 a sev erity level stated it was obligated to remand the case to the district one fe lony. The court granted, based on the state's recom­ court for an Ortiz hearing to determine if Singleton was mendation, a downward durational departure to 72 months' advised of his right to appeal from his guilty plea and imprisonment. In February 2004, Singleton filed a pro se whether he ever requested an appeal be filed. motion to correct an illegal sentence based State v. McAdam. STATUTES: K.S.A. 22-3424([) , -3502, -3504 (1), The district cour t denied the motion, and also denied -3608(c); KS.A. 60-1507; KS.■A. 65-4 159(a); KS.A. 2001 another motion to correct an illegal sentence, and a motion Supp. 65-4 l 52(a) (3), -7006(a)

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THEJO URNAL OF THEKANSA S BAR ASSOCIATION Tf!�J2YB��¾,1 Appellate Practice Reminders ... From the Appellate Court Clerk's Office

Civil Interlocutory Appeals

Litigants have 10 business days afterthe filingof an appropriate order to submit an application forpermission to take a civil interlocutory appeal. See Rule 4.01 and KS.A. 60-2102(6). The original application and three copies shall be filed with the clerk of the appellate courts along with the $130 docketing fee.

If the application is granted, the notice of appeal must be filed in rhe district court within the later of either rhe rime fixed by KS.A. 60-2103 or 10 days afterthe application is granted. The appeal is docketed the same as any other appeal; however, docketing must occur within 10 business days of the filing of the notice of appeal. See Rules 2.04 and 4.01. Because the docketing feeis paid when the application is filed, no further feeis required at the rime of docketing.

Motion for Extension of Time or Motion to Stay Occasionally a choice needs to be made by litigants whether they need more time to prepare and file a brief or whether briefing needs to be stayed. The litigant should make the choice which option to pursue. If all of the resources necessary for full briefing exist but time is lacking, then a motion for extension of time should be sought. See Rule 5.01. If one or more resources are missing, such as a transcript has not been completed, then the motion to stay is the better choice. The able practitioner should also state in the motion for stay that status reports will be sent at regular intervals, usually monthly. Stays are not favored, and both appellate courts closely monitor the progress of cases subject to stays.

If you have any questions about these or other appellate court rules and practices, call the Clerk's Office and ask to speal( with Carol G. Green, Clerk of the Appellate Courts, (785) 296-3229.

44 - MARCH 2005 THEJO URNAL OF THEKANSAS BAR ASSOC IATION CLASSIFIED ADVERTISEMENTS

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THEJO URNAL OF THEKANSA S BAR ASSOCIATION MARCH2005 - 45 CLASSIFIED ADVERTISEMENTS

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